Federal Register Vol. 82, No.2,

Federal Register Volume 82, Issue 2 (January 4, 2017)

Page Range711-1137
FR Document

82_FR_2
Current View
Page and SubjectPDF
82 FR 722 - Addition of Certain Entities to the Entity ListPDF
82 FR 899 - Public Notice for Waiver of Aeronautical Land-Use AssurancePDF
82 FR 840 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
82 FR 839 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
82 FR 898 - Public HearingPDF
82 FR 871 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-IMS Global Learning Consortium, Inc.PDF
82 FR 870 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Storage Performance CouncilPDF
82 FR 870 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-DVD Copy Control AssociationPDF
82 FR 828 - Federal Perkins Loan, Federal Work-Study, and Federal Supplemental Educational Opportunity Grant Programs; 2017-2018 Award Year Deadline DatesPDF
82 FR 805 - Publication Requirements for Agricultural Products; Rail Transportation of Grain, Rate Regulation ReviewPDF
82 FR 827 - Government-Industry Advisory Panel; Notice of Federal Advisory Committee MeetingPDF
82 FR 870 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Cooperative Research Group on Energy Storage System Evaluation and Safety IIPDF
82 FR 910 - Prompt Payment Interest Rate; Contract Disputes ActPDF
82 FR 869 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-National Spectrum ConsortiumPDF
82 FR 812 - Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Amendment to Regulations Implementing the Coastal Pelagic Species Fishery Management Plan; Change to Pacific Mackerel Management Cycle From Annual to BiennialPDF
82 FR 872 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
82 FR 882 - Investigations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
82 FR 810 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery of the South Atlantic Region; Amendment 36PDF
82 FR 850 - Notice Designating State Title IV-D Child Support Agencies as “Public Bodies”PDF
82 FR 789 - Safety Zone; Apra Harbor, GuamPDF
82 FR 787 - Drawbridge Operation Regulation; Upper Mississippi River, IAPDF
82 FR 889 - New Postal ProductsPDF
82 FR 821 - Certain Cold-Rolled Steel Flat Products From Japan: Initiation and Preliminary Results of Changed Circumstances Review, and Intent To Revoke Order in PartPDF
82 FR 900 - Extension of Comment Period on Whether Nonconforming Model Year 2013 and 2014 Ferrari F12 Berlinetta Passenger Cars Are Eligible for ImportationPDF
82 FR 908 - Reports, Forms, and Record Keeping RequirementsPDF
82 FR 901 - Reports, Forms, and Record Keeping RequirementsPDF
82 FR 820 - Certain Pasta From Italy: Partial Rescission of Countervailing Duty Administrative Review; 2015PDF
82 FR 837 - Integrated System Rate SchedulePDF
82 FR 831 - Application To Export Electric Energy; Southwest Power Pool, Inc.PDF
82 FR 868 - Closure of Public Lands for the 2017 King of the Hammers Race Event in San Bernardino County, CAPDF
82 FR 831 - North American Electric Reliability Corporation; Notice of FilingPDF
82 FR 834 - Combined Notice of Filings #2PDF
82 FR 832 - Combined Notice of Filings #1PDF
82 FR 871 - Special Technical Committee on Law Enforcement FirearmsPDF
82 FR 866 - Grand Traverse Band of Ottawa and Chippewa Indians; Amendments to Liquor OrdinancePDF
82 FR 869 - Notice of Public Meeting, Las Cruces District Resource Advisory Council Meeting, New MexicoPDF
82 FR 815 - Bridger-Teton Resource Advisory CommitteePDF
82 FR 825 - Fisheries of the Northeastern United States; Northeast Skate Complex Fishery; Notice of Intent To Prepare an Environmental Impact Statement; Scoping Process; Request for CommentsPDF
82 FR 890 - Morgan Stanley ETF Trust, et al.; Notice of ApplicationPDF
82 FR 892 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Market Data Section of Its Fee Schedule To Adopt Fees for EDGA Summary Depth and Amend Fees for EDGA DepthPDF
82 FR 887 - Notice of Proposed Information Collection Request: Digital Inclusion Corps Pilot Project EvaluationPDF
82 FR 852 - Battery Safety Concerns in Electronic Nicotine Delivery Systems; Public Workshop; Establishment of a Public Docket; Request for CommentsPDF
82 FR 851 - In-Use Stability Studies and Associated Labeling Statements for Multiple-Dose Injectable Animal Drug Products; Draft Guidance for Industry; AvailabilityPDF
82 FR 890 - International Product Change-Global Expedited Package Services-Non-Published RatesPDF
82 FR 890 - Product Change-Priority Mail Express and Priority Mail Negotiated Service AgreementPDF
82 FR 890 - Product Change-Priority Mail Negotiated Service AgreementPDF
82 FR 889 - Product Change-Priority Mail Negotiated Service AgreementPDF
82 FR 858 - Center for Scientific Review; Notice of Closed MeetingsPDF
82 FR 847 - C.H. Boehringer Sohn AG & Co. KG; Analysis To Aid Public CommentPDF
82 FR 850 - Advisory Committee; Technical Electronic Product Radiation Safety Standards Committee, RenewalPDF
82 FR 888 - New Postal ProductsPDF
82 FR 855 - Agency Information Collection Activities; Proposed Collection; Comment Request; Consumer and Healthcare Professional Identification of and Responses to Deceptive Prescription Drug PromotionPDF
82 FR 832 - Lightstone Marketing LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
82 FR 831 - Dayton Power and Light Company AES Ohio Generation, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
82 FR 833 - Combined Notice of Filings #2PDF
82 FR 840 - IoT Home Inspector ChallengePDF
82 FR 835 - Commission Information Collection Activities; Comment Request for Generic Clearance for the Collection of Qualitative Feedback on Commission Service DeliveryPDF
82 FR 729 - Partial Approval and Partial Disapproval of Attainment Plan for the Idaho Portion of the Logan, Utah/Idaho PM2.5PDF
82 FR 792 - Air Plan Approval; Ohio; Redesignation of the Ohio Portion of the Cincinnati-Hamilton, OH-IN-KY Area to Attainment of the 1997 Annual Standard for Fine Particulate MatterPDF
82 FR 869 - United States Section: Notice of Availability of a Draft Environmental Assessment for Rehabilitation of the Levee System in the Tijuana River Flood Control ProjectPDF
82 FR 725 - Revision of Department of Justice Freedom of Information Act RegulationsPDF
82 FR 1108 - Changes to Certain Alcohol-Related Regulations Governing Bond Requirements and Tax Return Filing PeriodsPDF
82 FR 780 - Changes to Certain Alcohol-Related Regulations Governing Bond Requirements and Tax Return Filing PeriodsPDF
82 FR 739 - Black Lung Benefits Act: Medical Benefit PaymentsPDF
82 FR 734 - Airworthiness Directives; Airbus AirplanesPDF
82 FR 737 - Airworthiness Directives; Gulfstream Aerospace Corporation AirplanesPDF
82 FR 816 - Privacy Act of 1974, New System of RecordsPDF
82 FR 770 - National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Maintaining Pavement Marking RetroreflectivityPDF
82 FR 859 - Extension and Redesignation of the Republic of Yemen for Temporary Protected StatusPDF
82 FR 718 - Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) AirplanesPDF
82 FR 716 - Airworthiness Directives; Robinson Helicopter Company HelicoptersPDF
82 FR 711 - Freedom of Information Act and Privacy Act ProceduresPDF
82 FR 912 - Promulgation of Air Quality Implementation Plans; State of Texas; Regional Haze and Interstate Visibility Transport Federal Implementation PlanPDF
82 FR 952 - Pesticides; Certification of Pesticide ApplicatorsPDF
82 FR 712 - Airworthiness Directives; Airbus AirplanesPDF
82 FR 1052 - Energy Conservation Program: Test Procedures for CompressorsPDF
82 FR 720 - Revocation of Offshore Airspace Areas; Control 1154H, Control 1173H, Control 1154L, and Control 1173L, CaliforniaPDF

Issue

82 2 Wednesday, January 4, 2017 Contents Agriculture Agriculture Department See

Forest Service

Alcohol Tobacco Tax Alcohol and Tobacco Tax and Trade Bureau RULES Changes to Certain Alcohol-Related Regulations Governing Bond Requirements and Tax Return Filing Periods, 1108-1137 2016-31417 PROPOSED RULES Changes to Certain Alcohol-Related Regulations Governing Bond Requirements and Tax Return Filing Periods, 780-787 2016-31415 Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: Cooperative Research Group on Energy Storage System Evaluation and Safety II, 870 2016-31904 DVD Copy Control Association, 870 2016-31908 IMS Global Learning Consortium, Inc., 871 2016-31910 National Spectrum Consortium, 869-870 2016-31902 Storage Performance Council, 870 2016-31909 Children Children and Families Administration NOTICES Designating State Title IV-D Child Support Agencies as Public Bodies, 850 2016-31895 Coast Guard Coast Guard PROPOSED RULES Drawbridge Operations: Upper Mississippi River, IA, 787-789 2016-31893 Safety Zones: Apra Harbor, Guam, 789-792 2016-31894 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Privacy Act; Systems of Records, 816-820 2016-31315
Defense Department Defense Department NOTICES Meetings: Government-Industry Advisory Panel, 827-828 2016-31905 Education Department Education Department NOTICES Federal Perkins Loan, Federal Work-Study, and Federal Supplemental Educational Opportunity Grant Programs; Award Deadline Dates for 2017-2018, 828-830 2016-31907 Employment and Training Employment and Training Administration NOTICES Worker Adjustment Assistance Eligibility; Determinations, 872-882 2016-31899 Worker Adjustment Assistance Eligibility; Investigations, 882-887 2016-31898 Energy Department Energy Department See

Federal Energy Regulatory Commission

See

Southwestern Power Administration

RULES Energy Conservation Programs: Test Procedures for Compressors, 1052-1106 2016-29427 NOTICES Export Electric Energy; Applications: Southwest Power Pool, Inc., 831 2016-31884
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Partial Approval and Partial Disapproval of Attainment Plan for the Idaho Portion of the Logan, Utah/Idaho PM2.5 Nonattainment Area, 729-733 2016-31643 Texas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan, 912-950 2016-30713 Pesticides; Certification of Pesticide Applicators, 952-1050 2016-30332 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Redesignation of the Ohio Portion of the Cincinnati-Hamilton, OH-IN-KY Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter, 792-805 2016-31635 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 712-716 2016-30117 Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Airplanes, 718-720 2016-30842 Robinson Helicopter Company Helicopters, 716-718 2016-30832 Revocation of Offshore Airspace Areas: Control 1154H, Control 1173H, Control 1154L, and Control 1173L, California, 720-722 2016-29144 PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 734-737 2016-31366 Gulfstream Aerospace Corporation Airplanes, 737-739 2016-31362 NOTICES Aeronautical Land-Use Assurances; Waivers: W. K. Kellogg Airport, Battle Creek, MI, 899-900 2016-31916 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 835-837 2016-31662 Combined Filings, 832-835 2016-31841 2016-31880 2016-31881 Filings: North American Electric Reliability Corp., 831-832 2016-31882 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Lightstone Marketing LLC, 832 2016-31843 Refund Effective Dates: Dayton Power and Light Co., AES Ohio Generation, LLC, 831 2016-31842 Federal Highway Federal Highway Administration PROPOSED RULES National Standards for Traffic Control Devices: Manual on Uniform Traffic Control Devices for Streets and Highways; Maintaining Pavement Marking Retroreflectivity, 770-780 2016-31249 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 840 2016-31914 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 839-840 2016-31913 Federal Trade Federal Trade Commission NOTICES Internet of Things (IoT) Home Inspector Challenge, 840-847 2016-31731 Proposed Consent Agreements: C.H. Boehringer Sohn AG and Co. KG, 847-850 2016-31848 Fiscal Fiscal Service NOTICES Prompt Payment Interest Rate; Contract Disputes Act, 910 2016-31903 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Consumer and Healthcare Professional Identification of and Responses to Deceptive Prescription Drug Promotion, 855-858 2016-31845 Charter Renewals: Advisory Committee; Technical Electronic Product Radiation Safety Standards Committee, 850-851 2016-31847 Guidance: In-Use Stability Studies and Associated Labeling Statements for Multiple-Dose Injectable Animal Drug Products, 851-852 2016-31855 Meetings: Battery Safety Concerns in Electronic Nicotine Delivery Systems; Public Workshop, 852-854 2016-31857 Forest Forest Service NOTICES Meetings: Bridger-Teton Resource Advisory Committee, 815-816 2016-31867 2016-31869 Health and Human Health and Human Services Department See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

U.S. Citizenship and Immigration Services

Indian Affairs Indian Affairs Bureau NOTICES Liquor Ordinances: Grand Traverse Band of Ottawa and Chippewa Indians, 866-868 2016-31874 Industry Industry and Security Bureau RULES Addition of Certain Entities to the Entity List, 722-725 2016-31969 Institute of Museum and Library Services Institute of Museum and Library Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Digital Inclusion Corps Pilot Project Evaluation, 887-888 2016-31858 Interior Interior Department See

Indian Affairs Bureau

See

Land Management Bureau

International Boundary International Boundary and Water Commission, United States and Mexico NOTICES Environmental Assessments; Availability, etc.: Rehabilitation of the Levee System in the Tijuana River Flood Control Project, 869 2016-31616 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Cold-Rolled Steel Flat Products from Japan, 821-825 2016-31890 Certain Pasta from Italy, 820-821 2016-31886 Justice Department Justice Department See

Antitrust Division

See

Justice Programs Office

RULES Freedom of Information Act Regulations, 725-729 2016-31508
Justice Programs Justice Programs Office NOTICES Requests for Nominations: Special Technical Committee on Law Enforcement Firearms, 871-872 2016-31876 Labor Department Labor Department See

Employment and Training Administration

See

Workers Compensation Programs Office

Land Land Management Bureau NOTICES Meetings: Las Cruces District Resource Advisory Council, New Mexico, 869 2016-31872 Public Lands; Temporary Closures: King of the Hammers Race, San Bernardino County, CA, 868-869 2016-31883 National Foundation National Foundation on the Arts and the Humanities See

Institute of Museum and Library Services

National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 901-910 2016-31887 2016-31888 Import Eligibility; Petitions: Model Year 2013 and 2014 Ferrari F12 Berlinetta Passenger Cars, 900-901 2016-31889 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 858-859 2016-31849 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Snapper-Grouper Fishery of the South Atlantic Region; Amendment 36, 810-812 2016-31896 Fisheries Off West Coast States: Coastal Pelagic Species Fisheries; Change to Pacific Mackerel Management Cycle from Annual to Biennial, 812-814 2016-31900 NOTICES Environmental Impact Statements; Availability, etc.: Fisheries of the Northeastern United States; Northeast Skate Complex Fishery, 825-827 2016-31864 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 888-889 2016-31846 2016-31892 Postal Service Postal Service NOTICES International Product Changes: Global Expedited Package Services—Non-Published Rates, 890 2016-31854 Product Changes: Priority Mail Express and Priority Mail Negotiated Service Agreement, 890 2016-31853 Priority Mail Negotiated Service Agreement, 889-890 2016-31850 2016-31851 2016-31852 Securities Securities and Exchange Commission NOTICES Applications: Morgan Stanley ETF Trust, et al., 890-892 2016-31860 Self-Regulatory Organizations; Proposed Rule Changes: Bats EDGA Exchange, Inc., 892-898 2016-31859 Southwestern Southwestern Power Administration NOTICES Integrated System Rate Schedule, 837-839 2016-31885 Special Inspector Special Inspector General for Afghanistan Reconstruction RULES Freedom of Information Act and Privacy Act Procedures, 711-712 2016-30775 Surface Transportation Surface Transportation Board PROPOSED RULES Publication Requirements for Agricultural Products; Rail Transportation of Grain, Rate Regulation Review, 805-809 2016-31906 Susquehanna Susquehanna River Basin Commission NOTICES Public Hearings, 898-899 2016-31912 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department See

Alcohol and Tobacco Tax and Trade Bureau

See

Fiscal Service

U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Temporary Protected Status; Extensions and Redesignations: Republic of Yemen, 859-866 2016-31003 Workers' Workers Compensation Programs Office PROPOSED RULES Black Lung Benefits Act: Medical Benefit Payments, 739-770 2016-31382 Separate Parts In This Issue Part II Environmental Protection Agency, 912-950 2016-30713 Part III Environmental Protection Agency, 952-1050 2016-30332 Part IV Energy Department, 1052-1106 2016-29427 Part V Treasury Department, Alcohol and Tobacco Tax and Trade Bureau, 1108-1137 2016-31417 Reader Aids

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

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

82 2 Wednesday, January 4, 2017 Rules and Regulations SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION 5 CFR Part 9301 RIN 3460-AA04 Freedom of Information Act and Privacy Act Procedures AGENCY:

Special Inspector General for Afghanistan Reconstruction.

ACTION:

Interim final rule.

SUMMARY:

The Special Inspector General for Afghanistan Reconstruction (SIGAR) proposes to amend its Freedom of Information Act regulation to comply with the FOIA Improvement Act of 2016. The FOIA Improvement Act of 2016 requires, among other things, that agencies update the procedures for proactive disclosures, disclosure requirements, and the circumstances under which agencies can charge search and duplication fees.

DATES:

This interim final rule is effective January 4, 2017. Submit comments on or before February 3, 2017.

ADDRESSES:

Address all comments concerning this proposed interim final rule to William B. Gaertner, Associate General Counsel, Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202. Comments will be made available for inspection upon written request. SIGAR will make such comments available for public inspection in the Office of Privacy, Records, and Disclosure, 9th Floor, 1550 Crystal Drive, Arlington, VA 22202, on official business days between the hours of 9 a.m. and 5 p.m. Eastern time. You can make an appointment to inspect comments by telephoning (703) 545-6000. All comments, including attachments and other supporting materials, received are part of the public record and subject to public disclosure. You should submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT:

William Gaertner, Associate General Counsel, Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202, (703) 545-5994.

SUPPLEMENTARY INFORMATION:

On January 28, 2008, the President signed into law the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), which created SIGAR to conduct independent and objective audits, investigations and analysis to promote economy and efficiency, and to detect and deter waste, fraud, and abuse in the reconstruction of Afghanistan. The Freedom of Information Act (FOIA), as amended, provides for access by the public to records of executive branch agencies, subject to certain restrictions and exemptions. In order to establish procedures to facilitate public interaction with SIGAR, the agency published 5 CFR part 9301 setting forth SIGAR's regulations governing the access provisions of those statutes and Executive Order 12958. On June 30, 2016 the President signed into law the FOIA Improvement Act of 2016 (Pub. L. 114-185) requiring that agencies make available for inspection in an electronic format records that have been requested three or more times, notify requesters of the right to seek dispute resolution services from the Office of Government Information Services (OGIS) when agencies extend time limits by more than ten additional working days, and limiting the circumstances under which agencies may charge requesters search fees. This interim final rule implements these changes to the FOIA. The changes will alter 5 CFR parts 9301.5, 9301.6, and 9301.8.

II. The Interim Final Rule

This interim final rule amends portions of SIGAR's existing regulation implementing provisions of the FOIA (5 U.S.C. 552). The provisions of this amendment shall apply to all components of SIGAR. The FOIA provides for the disclosure of agency records and information to the public, unless that information is exempted under delineated statutory exemptions under the FOIA. The procedures established here are intended to ensure that SIGAR fully satisfies its responsibility to the public to disclose agency information, but continues to safeguard sensitive information properly.

Procedural Requirements

This Interim Final rule amends SIGAR's regulations implementing the FOIA to facilitate the interaction of the public with SIGAR. SIGAR's policy of disclosure follows the Presidential Memorandum of January 21, 2009, “Transparency and Open Government,” 74 FR 4685, and the Attorney General's March 19, 2009 FOIA policy guidance, advising Federal agencies to apply a presumption of disclosure in FOIA decision making. This Interim Final Rule incorporates portions the FOIA Improvement Act of 2016, signed into law by the President on June 30, 2016. SIGAR has determined that good cause exists to publish this amendment to its FOIA regulations as an interim final rule. This amendment maintains SIGAR's compliance with the FOIA and those amendments to the FOIA adopted in the FOIA Improvement Act of 2016. SIGAR has determined that this interim rule should be issued without a delayed effective date pursuant to 5 U.S.C. 553(d)(3).

Finally, notice of proposed rulemaking is not required, because the provisions of the Regulatory Flexibility Act (5 U.S.C. Chapter 6) do not apply. It has been determined that this rulemaking is not a significant regulatory action for the purposes of Executive Order 12866. Accordingly, a regulatory impact analysis is not required.

Dated: December 16, 2016. John F. Sopko, Inspector General. List of Subjects in 5 CFR Part 9301

Administrative practice and procedure, Freedom of information.

Authority and Issuance

For the reasons set forth above, SIGAR amends 5 CFR part 9301 as follows:

PART 9301—[AMENDED] 1. The authority citation for part 9301 continues to read as follows: Authority:

5 U.S.C. 552; Pub. L. 110-175, 121 Stat. 2524 (2007); 5 U.S.C. 301 and 552; Exec. Order 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235; Exec. Order No. 13392, 70 FR 75373-75377, 3 CFR, 2006 Comp., pp. 216-200.

2. Section 9301.5 is revised to read as follows:
§ 9301.5 Accessing records without request

Certain SIGAR records, including the agency's Quarterly Report, audit reports, testimony, oversight plans, press releases, other public issuances, and records that are required by 5 U.S.C. 552(a)(2) to be made publicly available are available electronically from SIGAR's homepage at http://www.sigar.mil. SIGAR encourages requesters to visit its Web site before making a request for records under § 9301.6.

3. In § 9301.6, paragraphs (c)(1)(ii), (c)(3)(i), and (d)(1) are revised to read as follows:
§ 9301.6 Requesting records.

(c) * * *

(1) * * *

(ii) Request denied. If the FOIA Officer denies the request, in full or part, the FOIA Officer shall provide the requester written notice of the denial together with the approximate number of pages of information withheld and the exemption under which the information was withheld. SIGAR will indicate, if technically feasible, the amount of information deleted and the exemption under which the deletion is made at the place in the record where the deletion was made. SIGAR will also indicate the exemption under which a deletion is made on the released portion of the record, unless including that indication would harm an interest protected by the exemptions. The notice shall also describe the procedure for filing an appeal. SIGAR will further notify the requester of their right to seek assistance from SIGAR's FOIA Public Liaison or dispute resolution services from the FOIA Public Liaison or the Office of Government Information Services.

(3) * * *

(i) In general. If the FOIA Officer determines that unusual circumstances exist, the FOIA Officer may extend for no more than ten days (except Saturdays, Sundays and Federal holidays) the time limits described in paragraph (c)(1) of this section by providing written notice of the extension to the requester. The FOIA Officer shall include with the notice a brief statement of the reason for the extension and the date the FOIA Officer expects to make the determination. If the extension goes beyond ten working days, the FOIA Officer will include a notification of the requester's right to seek dispute resolutions services from the Office of Government Information Services.

(d) * * *

(1) Initiating appeals. Requesters not satisfied with the FOIA Officer's written decision may request SIGAR's FOIA Appellate Authority to review the decision. Appeals must be delivered in writing within 90 days of the date of the decision and shall be addressed to the FOIA Appellate Authority, Office of Privacy, Records & Disclosure, Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202. As there may be delays in mail delivery, it is advisable to Fax appeals to (703) 601-3804 or email to [email protected] An appeal shall include a statement specifying the records that are the subject of the appeal and explaining why the Appellate Authority should grant the appeal.

4. In § 9301.8, paragraph (f)(3) is added to read as follows:
§ 9301.8 Fees in general.

(f) * * *

(3) SIGAR determines that unusual circumstances apply to the processing of a request, provides timely notice the requester, and delay is excused for an additional ten days, but SIGAR still fails to respond within the timeframe established by the additional delay. This provision applies only to search fees. However, the following exceptions shall apply:

(i) Notwithstanding § 9301.8(f)(3), if SIGAR determines that unusual circumstances apply and that responding to the request requires the production of more than 5,000 pages, SIGAR may continue to charge search fees, or duplication fees for requesters in preferred status, for as long as necessary, after timely written notice has been made to the requester and SIGAR has discussed with the requester how the requester could effectively limit the scope of the request via written mail, electronic mail, or telephone, or made three good-faith attempts to do so.

(ii) Notwithstanding § 9301.8(f)(3), if a court determines that exceptional circumstances exist, SIGAR's failure to comply with a time limit shall be excused for the length of time provided by the court order.

[FR Doc. 2016-30775 Filed 1-3-17; 8:45 am] BILLING CODE 3710-L9-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0143; Directorate Identifier 2012-NM-113-AD; Amendment 39-18753; AD 2016-25-27] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all Airbus Model A300 B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, F4-622R, and C4-605R variant F airplanes. This AD was prompted by reports of cracks in the frame base fittings connecting the frame lower positions to the center wing box. This AD requires repetitive detailed inspections for cracking of the lower frame fittings of the frame foot, and replacement with a new frame foot if cracking is found. This AD also provides optional terminating action for the repetitive inspections. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective February 8, 2017.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 8, 2017.

ADDRESSES:

For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email: [email protected]; Internet: http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0143.

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-2014-0143; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-2125; fax: 425-227-1149.

SUPPLEMENTARY INFORMATION:

Discussion

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A300 B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, F4-622R, and C4-605R variant F airplanes. The SNPRM published in the Federal Register on July 7, 2016 (81 FR 44241) (“the SNPRM”). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on March 19, 2014 (79 FR 15266) (“the NPRM”). The NPRM was prompted by reports of cracks in the frame base fittings connecting the frame lower positions to the center wing box. The NPRM proposed to require repetitive detailed inspections of the lower frame fittings, related investigative actions, and corrective actions if necessary. The SNPRM proposed to replace the proposed requirements in the NPRM with new repetitive detailed inspections for cracking of the lower frame fittings of the frame foot, and replacement with a new frame foot if cracking is found. The SNPRM also proposed to provide optional terminating action for the repetitive inspections. We are issuing this AD to detect and correct cracking of the lower frame fittings, which could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0217, dated October 30, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on all Airbus Model A300 B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, F4-622R, and C4-605R variant F airplanes. The MCAI states:

During accomplishment of Airbus Service Bulletin (SB) A300-53-6111 (EASA AD 2012-0103), addressing detailed visual inspections of the lower frame fittings between Frame (FR) 41 and FR46, a crack was detected on one A300-600 aeroplane in the area 2 of the foot of FR46 at junction radius level.

This frame, previously repaired due to a crack finding in the frame foot area 1, was not due to be inspected before reaching the post-repair inspection threshold, i.e. 45,400 flight cycles since repair embodiment.

Further investigation determined that the repairs specified in Airbus SB A300-53-6111 were of limited effect to prevent cracking in the frame foot area 2.

This condition, if not detected and corrected, could affect the structural integrity of the fuselage of all aeroplanes operated up to the extended service goal (ESG).

As a temporary action and until an improvement of the existing repairs was made available, EASA issued AD 2012-0229 [AD * * *] to require a one-time detailed inspection (DET) of the frame feet that were repaired in accordance with Airbus SB A300-53-6111, and the reporting of findings to Airbus.

Since that [EASA] AD was issued, a detailed study was performed resulting in the development of a new inspection programme.

Consequently, Airbus cancelled SB A300-53-6111 and replaced it with SB A300-53-6177, introducing repetitive DET of the lower frame fittings between FR41 and FR46 for the entire fleet. In addition to this new inspection programme, Airbus designed a new frame foot which can be installed on aeroplanes through Airbus SB A300-53-6176.

For the reasons described above, this [EASA] AD supersedes EASA AD 2012-0103, not retaining its requirements, and instead requires the new inspection programme for the lower frame fittings. This [EASA] AD also introduces an optional terminating action for the repetitive inspections required by the [EASA] AD.

Corrective actions include replacing any cracked lower frame fittings with a new frame foot. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0143.

Comments

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

Request To Extend Compliance Time for Reporting Requirement

United Parcel Service (UPS) asked that the compliance time for submitting the inspection report specified in paragraph (h) of the proposed AD (in the SNPRM) be extended from 30 to 60 days. UPS stated that accomplishing the inspection may occur many days before the final task signoff (i.e., restoring access due to other work in the area), risking noncompliance with the 30-day requirement.

We agree to extend the compliance time for the reporting requirement in this AD to 60 days, because we have determined that this longer compliance time does not affect continued operational safety. We have changed paragraph (i) of this AD accordingly.

Request for Clarification of Compliance Time

Airbus asked that we clarify the compliance time for the inspections specified in paragraph (g) of the proposed AD (in the SNPRM). Airbus stated that unless Airbus Service Bulletin A300-53-6177, dated May 20, 2015, specifies differently, the inspection thresholds should be counted from the first flight of the airplane, not from the effective date of the AD. Airbus added that the compliance time provided in the proposed AD could be confusing to operators. Airbus also stated that for airplanes on which the inspections have not been done as of the effective date of the AD, no grace period is provided, which is a burden on operators.

We agree that clarification is necessary.

We agree that the compliance time identified in the “Threshold” column of paragraph 1.E., “Compliance,” of Airbus Service Bulletin A300-53-6177, dated May 20, 2015, refers to accumulated flight cycles or flight hours on the airplane since its first flight, but only if Airbus Service Bulletin A300-53-6177, dated May 20, 2015, does not specify differently. We redesignated paragraph (h) in the SNPRM as paragraph (i) of this AD, and redesignated subsequent paragraphs accordingly. We added clarification of the compliance times for the thresholds in paragraph (h)(1) of this AD.

We acknowledge that a grace period was not provided for all configurations. We removed the grace period exception language from paragraph (g) of the proposed AD (in the SNPRM) and moved it to paragraph (h)(2) of this AD. Paragraph (h)(2) of this AD explains that where grace periods specified in Airbus Service Bulletin A300-53-6177, dated May 20, 2015, refer to the issue date of certain service information, those compliance times are after the effective date of the AD. The exception in paragraph (h)(2) of this AD does not apply to compliance times specified as thresholds in Airbus Service Bulletin A300-53-6177, dated May 20, 2015.

In addition, we have determined that the actions for Configuration 004 airplanes identified in Airbus Service Bulletin A300-53-6177, dated May 20, 2015, must be clarified. For Configuration 004 airplanes identified in Airbus Service Bulletin A300-53-6177, dated May 20, 2015, the actions required by paragraph (g) of this AD cannot be accomplished in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-53-6177, dated May 20, 2015. Paragraph 1.E., “Compliance,” of Airbus Service Bulletin A300-53-6177, dated May 20, 2015, specifies the action for Configuration 004 airplanes as contacting and reporting to Airbus. Therefore, we have added paragraph (h)(3) to this AD to require operators to contact the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA), for corrective actions for Configuration 004 airplanes.

Request for Clarification of Inspections for Airplanes With a Previously Replaced Frame Foot

UPS asked for clarification of the inspection requirements specified in paragraph (g) of the proposed AD (in the SNPRM) for airplanes that previously replaced a frame foot per Airbus Service Bulletin A300-53-6111. UPS stated that if cracking was found during the inspections using that service information there were two options available: Installing a reinforcing doubler on the damaged fitting or replacing the fitting with a new part. UPS added that in Airbus Service Bulletin A300-53-6177, dated May 20, 2015, the inspection requirements are defined for airplanes previously inspected and found with no cracks, or fittings repaired per Airbus Service Bulletin A300-53-6111. UPS noted that it is not clear how to address airplanes on which the cracked fittings were replaced instead of installing a reinforcing repair. UPS asked that fittings replaced with a new part per Airbus Service Bulletin A300-53-6111 be treated as a previously inspected fitting with no crack findings, with repetitive inspections done per Airbus Service Bulletin A300-53-6177, dated May 20, 2015, using Configuration 001 instructions. UPS stated that this proposal is conservative and exceeds the inspection requirements in the proposed AD (in the SNPRM).

We agree that clarification is necessary. Airbus Service Bulletin A300-53-6177, dated May 20, 2015, defines four configurations: Configuration 001 for a frame foot that was never repaired, Configuration 002 for a frame foot that was preventatively repaired, Configuration 003 for a frame foot repaired in Area 1 as specified in Airbus Service Bulletin A300-53-6111 or with certain other repairs, and Configuration 004 for any frame foot not addressed by Configurations 1 through 3. If a new frame foot is installed on an airplane, it would be classified as Configuration 001. We have not changed this AD in this regard.

Conclusion

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

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

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

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

Related Service Information Under 1 CFR Part 51

Airbus has issued Service Bulletin A300-53-6177, dated May 20, 2015. The service information describes procedures for repetitive detailed inspections for cracking of the lower frame fittings between FR41 and FR46. Airbus has also issued Service Bulletin A300-53-6176, dated May 20, 2015. The service information describes procedures for replacing all lower frame feet between frame FR41 and FR46 with new, improved frame feet. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 123 airplanes of U.S. registry.

We estimate that it takes about 541 work-hours per product to comply with the basic requirements of this AD, and 1 work-hour per product for reporting. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $5,666,610, or $46,070 per product.

We estimate that the optional terminating modification will take about 529 work-hours and require parts costing $131,500, for a cost of $176,465.

Paperwork Reduction Act

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-25-27 Airbus: Amendment 39-18753; Docket No. FAA-2014-0143; Directorate Identifier 2012-NM-113-AD. (a) Effective Date

This AD is effective February 8, 2017.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Airbus Model A300 B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, F4-622R, and C4-605R variant F airplanes; certificated in any category; all serial numbers.

(d) Subject

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

(e) Reason

This AD was prompted by reports of cracks in the frame base fittings connecting the frame lower positions to the center wing box. We are issuing this AD to detect and correct cracking of the lower frame fittings, which could result in reduced structural integrity of the airplane.

(f) Compliance

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

(g) Repetitive Inspections and Replacement

At the applicable time specified in paragraph 1.E., “Compliance,” of Airbus Service Bulletin A300-53-6177, dated May 20, 2015, except as required by paragraphs (h)(1) and (h)(2) of this AD: Perform a detailed inspection for cracking of the lower frame fittings between frame (FR) 41 and FR46 of the frame foot, and if any crack is found, before further flight, replace with a new frame foot, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-53-6177, dated May 20, 2015, except as required by paragraph (h)(3) of this AD. Repeat the inspection thereafter at the applicable intervals specified in paragraph 1.E., “Compliance,” of Airbus Service Bulletin A300-53-6177, dated May 20, 2015.

(h) Service Information Exceptions

(1) Where the threshold identified in the “Threshold” column of paragraph 1.E., “Compliance,” of Airbus Service Bulletin A300-53-6177, dated May 20, 2015, specifies flight cycles or flight hours without specifying from a repair, replacement, or last inspection, the specified compliance time is accumulated flight cycles or flight hours on the airplane since its first flight.

(2) Where Airbus Service Bulletin A300-53-6177, dated May 20, 2015, specifies a compliance time “from issuance of revision 04 of Service Bulletin No. A300-53-6111,” or “from issuance of Service Bulletin No. A300-53-6177,” this AD requires compliance within the specified compliance time after the effective date of this AD.

(3) For Configuration 004 airplanes identified in Airbus Service Bulletin A300-53-6177, dated May 20, 2015: Within 6 months after the effective date of this AD, contact the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA), for corrective actions and accomplish all applicable corrective actions using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA.

(i) Reporting

At the applicable time specified in paragraph (i)(1) or (i)(2) of this AD: Submit a report of the findings (both positive and negative) of each inspection required by paragraph (g) of this AD. Send the report to Airbus Service Bulletin Reporting Online Application on Airbus World (https://w3.airbus.com).

(1) If the inspection was done on or after the effective date of this AD: Submit the report within 60 days after the inspection.

(2) If the inspection was done before the effective date of this AD: Submit the report within 60 days after the effective date of this AD.

(j) Optional Terminating Action

Replacement of all lower frame feet between FR41 and FR46, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-53-6176, dated May 20, 2015, terminates the repetitive inspections required by paragraph (g) of this AD.

(k) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1405; fax: 425-227-2125. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

(3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

(l) Related Information

Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2015-0217, dated October 30, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0143.

(m) Material Incorporated by Reference

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

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

(i) Airbus Service Bulletin A300-53-6176, dated May 20, 2015.

(ii) Airbus Service Bulletin A300-53-6177, dated May 20, 2015.

(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email: [email protected]; Internet: http://www.airbus.com.

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

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

Issued in Renton, Washington, on December 6, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-30117 Filed 1-3-17; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-0733; Directorate Identifier 2015-SW-040-AD; Amendment 39-18762; AD 2016-26-04] RIN 2120-AA64 Airworthiness Directives; Robinson Helicopter Company Helicopters AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for Robinson Helicopter Company (Robinson) Model R44, R44 II, and R66 helicopters. This AD requires inspecting the main rotor blade (MRB). This AD was prompted by a determination that some MRBs may have reduced blade thickness due to blending out corrosion. The actions are intended to prevent the unsafe condition on these products.

DATES:

This AD is effective February 8, 2017.

The Director of the Federal Register approved the incorporation by reference of certain documents listed in this AD as of February 8, 2017.

ADDRESSES:

For service information identified in this final rule, contact Robinson Helicopter Company, 2901 Airport Drive, Torrance, CA 90505; telephone (310) 539-0508; fax (310) 539-5198; or at http://www.robinsonheli.com. You may review a copy of the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0733.

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-2016-0733; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, any incorporated-by-reference service information, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations Office, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Eric Schrieber, Aviation Safety Engineer, Los Angeles Aircraft Certification Office, Transport Airplane Directorate, FAA, 3960 Paramount Blvd., Lakewood, California 90712; telephone (562) 627-5348; email [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

On May 27, 2016, at 81 FR 33609, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Robinson Model R44 and R44 II helicopters with an MRB part number (P/N) C016-7, Revision N/C, A through Z, and AA through AE; and Model R66 helicopters with an MRB P/N F016-2, Revision A through E. The NPRM proposed to require a one-time visual inspection of the MRB for a crack, corrosion, dent, nick, and scratch and either altering the MRB or removing it from service.

The NPRM was prompted by a report of a fatigue crack on a Model R44 II helicopter at the MRB trailing edge that had grown to reach the blade spar. The FAA subsequently determined that some MRBs may have reduced blade fatigue resistance due to repair by blending out corrosion in the area of the crack site radius. The proposed requirements were intended to prevent an MRB fatigue crack, which could lead to MRB failure and subsequent loss of helicopter control.

Comments

After our NPRM (81 FR 33609, May 27, 2016) was published, we received a comment from one commenter.

Request

Robinson requested we change the applicability of the AD for part number (P/N) C016-7 from “Revision N/C, A through Z, and AA through AE” to “Revision AA through AE.” Robinson stated that P/N C016-7 did not exist until Revision AA and suggested that some technicians may wrongfully apply the proposed AD to P/N C016-5 Revisions W thru Z.

We agree and have revised the AD accordingly.

FAA's Determination

We have reviewed the relevant information, considered the comment received, and determined that an unsafe condition exists and is likely to exist or develop on other products of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed with the change previously described. This change is consistent with the intent of the proposals in the NPRM (81 FR 33609, May 27, 2016) and will not increase the economic burden on any operator nor increase the scope of the AD.

Related Service Information Under 1 CFR Part 51

We reviewed Robinson R44 Service Bulletin SB-89, dated March 30, 2015 (SB-89), for Model R44 and R44 II helicopters and Robinson R66 Service Bulletin SB-13, dated March 30, 2015 (SB-13), for Model R66 helicopters. SB-89 and SB-13 provide a one-time procedure to inspect each MRB for cracks, corrosion, and damage that may indicate a crack. If there is a crack, corrosion, or any damage, SB-89 and SB-13 specify removing the MRB from service and contacting Robinson. Otherwise, SB-89 and SB-13 describe procedures to smooth the transition at the chord increase of each MRB to reduce the stress concentration.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Differences Between This AD and the Service Information

This AD requires compliance within the next 100 hours time-in-service (TIS) or at the next annual inspection, whichever occurs first. The service information recommends compliance within 15 hours TIS or by May 31, 2015, whichever occurs first, for the R44 and R44 II helicopters and 10 hours TIS or by May 31, 2015, whichever occurs first, for the R66 helicopters.

Costs of Compliance

We estimate that this AD affects 2,236 helicopters of U.S. Registry and that labor costs average $85 per work hour. Based on these estimates, we expect the following costs:

• The visual inspection requires 1 work hour. No parts are needed, so the cost per helicopter totals $85. The cost for the U.S. fleet totals $190,060.

• Altering each MRB, if necessary, requires 2 work hours and $65 for parts. We estimate a total cost of $235 per helicopter and $525,460 for the U.S. fleet.

• Replacing an MRB, if necessary, requires 3 work hours. Parts cost $19,900 for the Model R44 and R44 II and $20,900 for the R66 helicopter for a total cost of $20,155 and $21,155, respectively, per MRB.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-26-04 Robinson Helicopter Company: Amendment 39-18762; Docket No. FAA-2016-0733; Directorate Identifier 2015-SW-040-AD. (a) Applicability

This AD applies to Robinson Helicopter Company (Robinson) Model R44 and R44 II helicopters with a main rotor blade (MRB) part number (P/N) C016-7, Revision AA through AE installed; and Model R66 helicopters with a MRB P/N F016-2, Revision A through E, installed; certificated in any category.

(b) Unsafe Condition

This AD defines the unsafe condition as a fatigue crack on an MRB. This condition could result in failure of an MRB and loss of helicopter control.

(c) Effective Date

This AD becomes effective February 8, 2017.

(d) Compliance

You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

(e) Required Actions

Within 100 hours time-in-service or at the next annual inspection, whichever occurs first:

(1) Clean each MRB in the area depicted in Figure 1 of Robinson R44 Service Bulletin SB-89, dated March 30, 2015 (SB-89), or Robinson R66 Service Bulletin SB-13, dated March 30, 2015 (SB-13), as applicable to your model helicopter.

(2) Using 10X or higher power magnification and a light, visually inspect the upper and lower MRB surfaces and trailing edge as depicted in Figure 1 of SB-89 or SB-13, whichever applies to your helicopter, for a crack, a nick, a scratch, a dent, or corrosion. If there is a crack, a nick, a scratch, a dent, or any corrosion, repair the MRB to an airworthy configuration if the damage is within the maximum repair damage limits or remove the MRB from service.

(3) Alter the MRB in accordance with Compliance Procedure, paragraphs 4 through 19, of SB-89 or SB-13, as applicable to your model helicopter. Equivalent tubing may be used for R7769-1 and R7769-6 tubes. Power tools may not be used for this procedure.

(f) Alternative Methods of Compliance (AMOCs)

(1) The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Eric Schrieber, Aviation Safety Engineer, Los Angeles Aircraft Certification Office, Transport Airplane Directorate, FAA, 3960 Paramount Blvd., Lakewood, California 90712; telephone (562) 627-5348; email [email protected]

(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

(g) Subject

Joint Aircraft Service Component (JASC) Code: 6210, Main Rotor Blades.

(h) Material Incorporated by Reference

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

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

(i) Robinson R44 Service Bulletin SB-89, dated March 30, 2015.

(ii) Robinson R66 Service Bulletin SB-13, dated March 30, 2015.

(3) For Robinson Helicopter Company service information identified in this AD, contact Robinson Helicopter Company, 2901 Airport Drive, Torrance, CA 90505; telephone (310) 539-0508; fax (310) 539-5198; or at http://www.robinsonheli.com.

(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.

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

Issued in Fort Worth, Texas, on December 15, 2016. Stephen Barbini, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 2016-30832 Filed 1-3-17; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9109; Directorate Identifier 2016-NM-011-AD; Amendment 39-18761; AD 2016-26-03] RIN 2120-AA64 Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are superseding Airworthiness Directive (AD) 2013-23-02 for all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, CN-235-300, and C-295 airplanes. AD 2013-23-02 required an inspection of the feeder cables of certain fuel booster pumps for damage (including, but not limited to, signs of electrical arcing and fuel leaks), and replacement if necessary. This new AD retains those requirements and also requires modification of the electrical installation of the fuel booster pumps. This AD was prompted by a report of an in-flight problem with the fuel transfer system. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective February 8, 2017.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 8, 2017.

The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of December 2, 2013 (78 FR 68688, November 15, 2013).

ADDRESSES:

For service information identified in this final rule, contact EADS CASA (Airbus Defense and Space), Services/Engineering Support, Avenida de Aragón 404, 28022 Madrid, Spain; telephone: +34 91 585 55 84; fax: +34 91 585 31 27; email: [email protected] You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9109.

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-2016-9109; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1112; fax: 425-227-1149.

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-23-02, Amendment 39-17657 (78 FR 68688, November 15, 2013) (“AD 2013-23-02”). AD 2013-23-02 applied to all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, CN-235-300, and C-295 airplanes. The NPRM published in the Federal Register on September 19, 2016 (81 FR 64080). The NPRM was prompted by a report of an in-flight problem with the fuel transfer system. The NPRM proposed to continue to require an inspection of the feeder cables of certain fuel booster pumps for damage (including, but not limited to, signs of electrical arcing and fuel leaks), and replacement if necessary. The NPRM also proposed to require modification of the electrical installation of the fuel booster pumps. We are issuing this AD to prevent damage to certain fuel booster pumps, which could create an ignition source in the fuel tank vapor space, and result in a fuel tank explosion and consequent loss of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0014, dated January 14, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, CN-235-300, and C-295 airplanes. The MCAI states:

An occurrence with a CN-235 aeroplane was reported, involving an in-flight problem with the fuel transfer system. The results of the subsequent investigation revealed damage on the fuel booster pump electrical feeding cable and some burn marks on the pump body and plate (fairing) at the external side of the fuel tank; confirmed electrical arcing between the wire and pump body; and revealed fuel leakage onto the affected wire.

This condition, if not detected and corrected, could create an ignition source in the fuel tank vapour space, possibly resulting in a fuel tank explosion and loss of the aeroplane.

To address this potential unsafe condition, EADS CASA (Airbus Military) issued All Operators Letter (AOL) 235-025 and AOL 295-025, providing inspection instructions for the affected fuel booster pumps, Part Number (P/N) 1C12-34 and P/N 1C12-46.

Consequently, EASA issued AD 2013-0186 [which corresponds to FAA AD 2013-23-02] to require a one-time [detailed visual] inspection of the affected fuel booster pumps to detect damage and, depending on findings, replacement of the fuel booster pump. That [EASA] AD also required reporting of all findings to EADS CASA for evaluation.

Since that [EASA] AD was issued, Airbus Defence and Space (D&S) developed [a] modification of the fuel boost pump electrical installation, available for in-service application through Airbus D&S Service Bulletin (SB) 235-28-0023. That modification involves improved protection of the output of affected fuel pump harness avoiding undesired electrical contacts and preventing potential arcing between the affected harness and metallic parts of the fuel boost cover.

For the reasons described above this [EASA] AD partially retains the requirements of EASA AD 2013-0186, which is superseded, and requires modification of the fuel pump electrical installation.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9109.

Comments

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

Conclusion

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

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

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

Related Service Information Under 1 CFR part 51

Airbus Defense and Space has issued Service Bulletin SB-235-28-0023C, Revision 01, dated October 27, 2015. The service information describes procedures for modification of the fuel booster pumps. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 35 airplanes of U.S. registry.

The actions required by AD 2013-23-02, and retained in this AD take about 4 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2013-23-02 is $340 per product.

We also estimate that it will take about 8 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $1,802 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $86,870, or $2,482 per product.

In addition, we estimate that any necessary follow-on actions will take about 3 work-hours and require parts costing $16,080, for a cost of $16,335 per product. We have no way of determining the number of aircraft that might need this action.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2013-23-02, Amendment 39-17657 (78 FR 68688, November 15, 2013), and adding the following new AD: 2016-26-03 Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.): Amendment 39-18761; Docket No. FAA-2016-9109; Directorate Identifier 2016-NM-011-AD. (a) Effective Date

This AD is effective February 8, 2017.

(b) Affected ADs

This AD replaces AD 2013-23-02, Amendment 39-17657 (78 FR 68688, November 15, 2013) (“AD 2013-23-02”).

(c) Applicability

This AD applies to Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Model CN-235, CN-235-100, CN-235-200, CN-235-300, and C-295 airplanes, certificated in any category, all manufacturer serial numbers.

(d) Subject

Air Transport Association (ATA) of America Code 28, Fuel.

(e) Reason

This AD was prompted by a report of an in-flight problem with the fuel transfer system. We are issuing this AD to prevent damage to certain fuel booster pumps, which could create an ignition source in the fuel tank vapor space, and result in a fuel tank explosion and consequent loss of the airplane.

(f) Compliance

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

(g) Retained Inspection of the Feeder Cables of Certain Fuel Booster Pumps, With No Changes

This paragraph restates the requirements of paragraph (g) of AD 2013-23-02, with no changes. Within the times specified in paragraph (g)(1) or (g)(2) of this AD, as applicable: Perform a detailed visual inspection for damage (including, but not limited to, signs of electrical arcing and fuel leaks) of the electrical feeder cables of each fuel booster pump having part number (P/N) 1C12-34 or 1C12-46, in accordance with the instructions of Airbus Military All Operator Letter 235-025, dated July 29, 2013 (for Model CN-235 airplanes); or Airbus Military All Operator Letter 295-025, Revision 01, dated August 1, 2013 (for Model C-295 airplanes).

(1) For each fuel booster pump that has not been replaced as of December 2, 2013 (the effective date of AD 2013-23-02): Prior to the accumulation of 300 total flight hours or within 5 flight cycles after December 2, 2013, whichever occurs later.

(2) For each fuel booster pump that has been replaced as of December 2, 2013 (the effective date of AD 2013-23-02): Within 300 flight hours since the most recent fuel booster pump replacement, or within 5 flight cycles after December 2, 2013, whichever occurs later.

(h) Retained Replacement of Affected Fuel Boost Pumps, With No Changes

This paragraph restates the requirements of paragraph (h) of AD 2013-23-02, with no changes. If any damage (including, but not limited to, signs of electrical arcing and fuel leaks) is found during the inspection required by paragraph (g) of this AD: Within the time specified in paragraph (h)(1) or (h)(2) of this AD, replace the affected fuel booster pump with a serviceable pump, in accordance with Airbus Military All Operator Letter 235-025, dated July 29, 2013 (for Model CN-235 airplanes); or Airbus Military All Operator Letter 295-025, Revision 01, dated August 1, 2013 (for Model C-295 airplanes).

(1) Before further flight.

(2) Within 10 days following the inspection, provided that the airplane is operated under the conditions specified in Airbus Military All Operator Letter 235-025, dated July 29, 2013 (for Model CN-235 airplanes); or Airbus Military All Operator Letter 295-025, Revision 01, dated August 1, 2013 (for Model C-295 airplanes).

(i) New Requirement of This AD: Modification of the Fuel Booster Pumps

For Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes: Within 12 months after the effective date of this AD, modify the electrical installation of the fuel booster pumps, in accordance with the Accomplishment Instructions of Airbus Defense and Space Service Bulletin SB-235-28-0023C, Revision 01, dated October 27, 2015. Accomplishing the modification terminates the requirements of paragraphs (g) and (h) of this AD for that airplane.

(j) Credit for Previous Actions

This paragraph provides credit for actions required by paragraph (i) of this AD, if those actions were performed before the effective date of this AD using Airbus EADS CASA Service Bulletin SB-235-28-0023, dated March 14, 2014.

(k) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1112; fax: 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

(l) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016-0014, dated January 14, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9109.

(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (m)(5) and (m)(6) of this AD.

(m) Material Incorporated by Reference

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

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

(3) The following service information was approved for IBR on February 8, 2017.

(i) Airbus Defense and Space Service Bulletin SB-235-28-0023C, Revision 01, dated October 27, 2015.

(ii) Reserved.

(4) The following service information was approved for IBR on December 2, 2013 (78 FR 68688, November 15, 2013).

(i) Airbus Military All Operator Letter 235-025, dated July 29, 2013.

(ii) Airbus Military All Operator Letter 295-025, Revision 01, dated August 1, 2013.

(5) For service information identified in this AD, contact EADS CASA (Airbus Defense and Space), Services/Engineering Support, Avenida de Aragón 404, 28022 Madrid, Spain; telephone: +34 91 585 55 84; fax: +34 91 585 31 27; email: [email protected]

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

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

Issued in Renton, Washington, on December 8, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-30842 Filed 1-3-17; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-9263; Airspace Docket No. 15-AWA-6] RIN 2120-AA66 Revocation of Offshore Airspace Areas; Control 1154H, Control 1173H, Control 1154L, and Control 1173L, California AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action removes offshore airspace areas Control 1154H and Control 1154L located offshore of Ukiah, California, and removes offshore airspace areas Control 1173H and Control 1173L located offshore of San Francisco, California. The FAA has determined these offshore airspace areas are no longer required.

DATES:

Effective date 0901 UTC, March 2, 2017. The Director of the FEDERAL REGISTER approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

ADDRESSES:

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:

Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.

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 the 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 removes offshore airspace areas no longer required to ensure the safe and efficient flow of air traffic offshore of the west coast.

History

In 1950, the Civil Aeronautics Administration (CAA), (renamed the Federal Aviation Agency on August 23, 1958, and then renamed the Federal Aviation Administration (FAA) on October 15, 1966), issued a final rule establishing “Control area extension (San Francisco, Calif.) (North dogleg route)” (15 FR 3316, May 30, 1950). Subsequently in 1952, the CAA renamed the control area extension “Control area extension (San Francisco, Calif.)” (17 FR 8323, September 17, 1952). Then in 1962, the Federal Aviation Agency re-described the control area extension as an additional control area and renamed it “Control 1173” (27 FR 220-1, 220-56 (immediately after the 4 blank pages following 27 FR 11030), November 10, 1962). In 1969, the FAA issued a final rule establishing “Control 1154” (34 FR 13589, August 23, 1969) as an additional control area.

In 1993, as a result of the Airspace Reclassification final rule (56 FR 65638, December 17, 1991) and the Offshore Airspace Reconfiguration; Additional Control Areas final rule (58 FR 12128, March 2, 1993), additional control areas were re-designated as either offshore airspace areas or en route domestic airspace areas, as appropriate, and revised controlled airspace determinations were published, in accordance with Presidential Proclamation No. 5928, “Territorial Sea of the United States,” signed December 27, 1988. Accordingly, the additional control areas Control 1154 and Control 1173 were each re-designated into two offshore airspace areas; Control 1154L and Control 1154H, and Control 1173L and Control 1173H, respectively. The primary purpose of these offshore airspace areas was to define the airspace areas over the high seas for which the United States has jurisdiction through an ICAO regional agreement and within which domestic air traffic control procedures are applied.

Based on recent aeronautical reviews of these offshore airspace areas, the FAA has determined that the outer boundaries for the control areas contain geographic latitude/longitude coordinate references that do not align with the Flight Information Region (FIR) boundary, as indicated in their legal descriptions. Additionally, the inner boundary of these offshore airspace areas extend inside the United States territorial limit and are inconsistent with the offshore airspace area guidance, reference being designated in international airspace, published in Title 14 Code of Federal Regulations, part 71, and FAA Order 7400.2, Procedures for Handling Airspace Matters. Further, the Control 1154H, Control 1173H, Control 1154L, and Control 1173L offshore airspace areas are duplicated by the Pacific High and Pacific Low offshore airspace areas that were established in 1993 (58 FR 12128, March 2, 1993) and amended in 2010 (75 FR 51661, August 23, 2010). No operational impact will occur by the removal of Control 1154 and Control 1173 offshore airspace areas. Therefore, the FAA is taking action to remove offshore airspace areas Control 1154H, Control 1173H, Control 1154L, and Control 1173L.

Availability and Summary of Documents for Incorporation by Reference

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, signed 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 Rule

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by removing offshore airspace areas Control 1154H, Control 1173H, Control 1154L, and Control 1173L. The FAA has determined these control areas are no longer required as they are not in compliance with current regulatory criteria, are duplicated by the Pacific High and Pacific Low offshore airspace areas, and no operational impact will occur by removing them. As this action removes offshore airspace areas no longer needed, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

Offshore airspace areas (Class A) extending upward from 18,000 feet mean sea level (MSL) to a specified altitude are published in paragraph 2003, and offshore airspace areas (Class E) extending upward from a specified altitude to, but not including 18,000 feet MSL are published in paragraph 6007, of FAA Order 7400.11A, signed August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. Offshore airspace areas Control 1154H and Control 1173H listed in this document will be subsequently removed from paragraph 2003 of the Order. Control 1154L and Control 1173L will be subsequently removed from paragraph 6007 of 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. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Environmental Review

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act and its agency implementing regulations in FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” regarding categorical exclusions for procedural actions at paragraph 5-6.5a which categorically excludes from full environmental impact review actions that are rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). This airspace action consists of removing offshore airspace areas no long needed and is not expected to cause any potentially significant environmental impacts. In accordance with FAAO 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference, Navigation (air).

The Amendment

In consideration of the foregoing, the Federal Aviation Administration amends 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 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 2003. Offshore Airspace Areas Control 1154H [Removed] Control 1173H [Removed] Paragraph 6007. Offshore Airspace Areas Control 1154L [Removed] Control 1173L [Removed] Issued in Washington, DC, on November 29, 2016. Leslie M. Swann, Acting Manager, Airspace Policy Group.
[FR Doc. 2016-29144 Filed 1-3-17; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Part 744 [Docket No. 161228999-6999-01] RIN 0694-AH27 Addition of Certain Entities to the Entity List AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

The Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) by adding five entities to the Entity List. These five entities have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. BIS is taking this action in conjunction with the designations made by the Office of Foreign Asset Controls, Department of the Treasury, under amended Executive Order 13694. This final rule lists these entities on the Entity List under the destination of Russia.

DATES:

This rule is effective January 4, 2017.

FOR FURTHER INFORMATION CONTACT:

Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-5991, Email: [email protected]

SUPPLEMENTARY INFORMATION: Background

The Entity List (Supplement No. 4 to part 744 of the EAR) identifies entities and other persons reasonably believed to be involved in, or that pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy of the United States. The EAR imposes additional licensing requirements on, and limits the availability of most license exceptions for exports, reexports, and transfers (in-country) to those persons or entities listed on the Entity List. The license review policy for each listed entity is identified in the “License review policy” column on the Entity List and the impact on the availability of license exceptions is described in the Federal Register notice adding entities or other persons to the Entity List. BIS places entities on the Entity List based on certain sections of part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC) is composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy, and where appropriate, the Treasury. The ERC makes decisions to add an entry to the Entity List by majority vote and to remove or modify an entry by unanimous vote. The Departments represented on the ERC have approved these changes to the Entity List.

Entity List Additions Additions to the Entity List

This rule implements the decision of the agencies of the ERC to add five entities to the Entity List. These five entities are being added on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The five entries being added to the Entity List are in Russia.

Under § 744.11(b) (Criteria for revising the Entity List) of the EAR, persons for whom there is reasonable cause to believe, based on specific and articulable facts, have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List. The entities being added to the Entity List have been determined to be involved in activities that are contrary to the national security or foreign policy interests of the United States. Specifically, in this rule, BIS adds five entities to the Entity List, as further described below.

Entity Additions Consistent With Executive Order 13694

Five entities are added based on activities that are described in Executive Order 13694 (80 FR 18077), Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities, issued by the President on April 1, 2015 and amended on December 29, 2016.

As originally issued in April 2015, Executive Order 13694 created a new, targeted authority for the U.S. government to respond more effectively to the most significant of cyber threats, particularly in situations where malicious cyber actors operate beyond the reach of existing authorities, focusing on cyber-enabled malicious activities. Executive Order 13694 authorized the imposition of sanctions on individuals and entities determined to be responsible for or complicit in malicious cyber-enabled activities that result in enumerated harms that are reasonably likely to result in, or have materially contributed to, a significant threat to the national security, foreign policy, or economic health or financial stability of the United States. Under Section 8 of the Executive Order 13694, all agencies of the United States Government are directed to take all appropriate measures within their authority to carry out the provisions of the Order.

On December 29, 2016, the President issued an Executive Order Taking Additional Steps To Address The National Emergency With Respect To Significant Malicious Cyber-Enabled Activities, which amended Executive Order 13694. With this action, the existing authorities have been amended to also allow for the imposition of sanctions on individuals and entities determined to be responsible for tampering, altering, or causing the misappropriation of information with the purpose or effect of interfering with or undermining election processes or institutions. Five entities and four individuals are identified in the Annex of the amended Executive Order and have been added to OFAC's list of Specially Designated Nationals and Blocked Persons (SDN List). OFAC also designated an additional two individuals who also were added to the SDN List.

BIS, pursuant to Executive Order 13694, as amended, and in consultation with the Departments of State, Defense, Energy, and the Treasury, has designated the five entities specified in the next three paragraphs.

The Main Intelligence Directorate (a.k.a., the following two aliases: Glavnoe Razvedyvatel'noe Upravlenie; and GRU) is involved in external collection using human intelligence officers and a variety of technical tools, and is designated for tampering, altering, or causing a misappropriation of information with the purpose or effect of interfering with the 2016 U.S. election processes.

The Federal Security Service (FSB), (f.k.a., Esage Lab) a.k.a., Federalnaya Sluzhba Bezopasnosti, assisted the GRU in conducting the activities described above.

There were also three other entities involved: (1) The Special Technology Center, (a.k.a., STLC, Ltd.) assisted the GRU in conducting signals intelligence operations; (2) Zorsecurity Center (a.k.a., Esage Lab) provided the GRU with technical research and development; and (3) the Autonomous Noncommercial Organization Professional Association of Designers of Data Processing Systems (a.k.a., ANO PO KSI) provided specialized training to the GRU.

With these additions, BIS imposes on these entities a license requirement for exports, reexports, or transfers (in-country) of all items subject to the EAR and a license review policy of presumption of denial. The license requirement applies to any transaction in which items are to be exported, reexported, or transferred (in-country) to any of the entities or in which such entities act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule. This license requirement implements an appropriate measure within the authority of the EAR to carry out the provisions of Executive Order 13694.

This final rule adds the following five entities to the Entity List:

Russia

(1) Autonomous Noncommercial Organization Professional Association of Designers of Data Processing Systems, a.k.a., the following one alias:

—ANO PO KSI.

Prospekt Mira D 68, Str 1A, Moscow 129110, Russia; and Dom 3, Lazurnaya Ulitsa, Solnechnogorskiy Raion, Andreyevka, Moscow Region 141551, Russia;

(2) Federal Security Service (FSB), a.k.a., the following one alias:

—Federalnaya Sluzhba Bezopasnosti.

Ulitsa Kuznetskiy Most, Dom 22, Moscow 107031, Russia; and Lubyanskaya Ploschad, Dom 2, Moscow 107031, Russia;

(3) Main Intelligence Directorate, a.k.a., the following three aliases

—Glavnoe Razvedyvatel'noe Upravlenie; —GRU; and —Main Intelligence Department.

Khoroshevskoye Shosse 76, Khodinka, Moscow, Russia; and Ministry of Defence of the Russian Federation, Frunzenskaya nab., 22/2, Moscow 119160, Russia;

(4) Special Technology Center, a.k.a., the following one alias:

—STC, Ltd.

Gzhatskaya 21 k2, St. Petersburg, Russia; and 21-2 Gzhatskaya Street, St. Petersburg, Russia; and

(5) Zorsecurity Center (f.k.a., Esage Lab), a.k.a., the following one alias:

—TSOR Security.

Luzhnetskaya Embankment 2/4, Building 17, Office 444, Moscow 119270, Russia.

Export Administration Act

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 4, 2016, 81 FR 52587 (August 8, 2016), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has 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 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 regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and carries a burden estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to [email protected], or by fax to (202) 395-7285.

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

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (See 5 U.S.C. 553(a)(1)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in country) to the entities being added to the Entity List. If the effective date of this rule were delayed to allow for notice and comment, then the entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, publishing a proposed rule would give these parties notice of the U.S. Government's intention to place them on the Entity List and would create an incentive for these persons to either accelerate their receipt of items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States, and/or to take steps to set up additional aliases, change addresses, and/or take other measures to try to limit the impact of the listing on the Entity List once a final rule is published.

Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

List of Subjects in 15 CFR Part 744

Exports, Reporting and recordkeeping requirements, Terrorism.

For the reasons stated in the preamble, the Bureau of Industry and Security amends part 744 of the Export Administration Regulations (15 CFR parts 730-774) as follows:

PART 744—[AMENDED] 1. The authority citation for 15 CFR part 744 continues 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 November 12, 2015, 80 FR 70667 (November 13, 2015); 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).

2. Supplement No. 4 to part 744 is amended by adding under the destination of Russia, in alphabetical order, five Russian entities.

The additions read as follows:

Supplement No. 4 to Part 744—Entity List Country Entity License requirement License
  • review policy
  • Federal
  • Register
  • citation
  • *         *         *         *         *         *         * RUSSIA *         *         *         *         *         * Autonomous Noncommercial Organization Professional Association of Designers of Data Processing Systems, a.k.a., the following one alias:
  • —ANO PO KSI
  • For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 82 FR [INSERT FR PAGE NUMBER AND 1/4/2017]
    Prospekt Mira D 68, Str 1A, Moscow 129110, Russia; and Dom 3, Lazurnaya Ulitsa, Solnechnogorskiy Raion, Andreyevka, Moscow Region 141551, Russia *         *         *         *         *         * Federal Security Service (FSB), a.k.a., the following one alias:
  • —Federalnaya Sluzhba Bezopasnosti
  • For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 82 FR [INSERT FR PAGE NUMBER AND 1/4/2017]
    Ulitsa Kuznetskiy Most, Dom 22, Moscow 107031, Russia; and Lubyanskaya Ploschad, Dom 2, Moscow 107031, Russia *         *         *         *         *         * Main Intelligence Directorate, a.k.a., the following three aliases:
  • —Glavnoe Razvedyvatel'noe Upravlenie;
  • —GRU; and
  • —Main Intelligence Department
  • For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 82 FR [INSERT FR PAGE NUMBER AND 1/4/2017]
    Khoroshevskoye Shosse 76, Khodinka, Moscow, Russia; and Ministry of Defence of the Russian Federation, Frunzenskaya nab., 22/2, Moscow 119160, Russia *         *         *         *         *         * Special Technology Center, a.k.a., the following one alias:
  • —STC, Ltd
  • For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 82 FR [INSERT FR PAGE NUMBER AND 1/4/2017]
    Gzhatskaya 21 k2, St. Petersburg, Russia; and 21-2 Gzhatskaya Street, St. Petersburg, Russia. *         *         *         *         *         * Zorsecurity Center (f.k.a., Esage Lab), a.k.a., the following one alias:
  • —TSOR Security
  • For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 82 FR [INSERT FR PAGE NUMBER AND 1/4/2017]
    Luzhnetskaya Embankment 2/4, Building 17, Office 444, Moscow 119270, Russia *         *         *         *         *         *
    Dated: December 29, 2016. Eric L. Hirschhorn, Under Secretary of Commerce for Industry and Security.
    [FR Doc. 2016-31969 Filed 12-30-16; 4:15 pm] BILLING CODE 3510-33-P
    DEPARTMENT OF JUSTICE 28 CFR Part 16 [Docket No. OAG 155] RIN 1105-AB51; A.G. Order No. 3803-2016 Revision of Department of Justice Freedom of Information Act Regulations AGENCY:

    Department of Justice.

    ACTION:

    Interim final rule with request for comments.

    SUMMARY:

    This rule amends the Department of Justice's regulations under the Freedom of Information Act (FOIA) to incorporate certain changes made to the FOIA by the FOIA Improvement Act of 2016. In addition, this rule amends certain provisions in the fee section to reflect developments in the case law and to streamline the description of the factors to be considered when making fee waiver determinations.

    DATES:

    Effective Date: This rule is effective February 3, 2017.

    Comment Date: Public comments must be submitted by March 6, 2017. Comments submitted by mail will be accepted as timely if they are postmarked on or before that date. Electronic comments may be submitted via www.regulations.gov prior to midnight Eastern Time at the end of that day.

    ADDRESSES:

    You may submit written comments, identified by RIN 1105-AB51 or Docket No. OAG 155, by one of the following methods:

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

    Mail: Lindsay Roberts, Attorney-Advisor, Office of Information Policy, 1425 New York Avenue NW., Room 11050, Washington, DC 20530.

    Instructions: All submissions received must include the agency name and docket number for this rulemaking. For additional details on submitting comments, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Lindsay Roberts, Attorney-Advisor, Office of Information Policy, (202) 514-3642.

    SUPPLEMENTARY INFORMATION:

    This rule amends the Department's regulations under the Freedom of Information Act to incorporate certain changes made to the FOIA, 5 U.S.C. 552, by the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (June 30, 2016). The FOIA Improvement Act of 2016 provides that agencies must allow a minimum of 90 days for requesters to file an administrative appeal. The Act also requires that agencies notify requesters of the availability of dispute resolution services at various times throughout the FOIA process. Finally, the Act codifies the Department of Justice's “foreseeable harm” standard. This rule updates the Department's regulations in 28 CFR part 16, subpart A, to reflect those statutory changes.

    In addition, as explained below, this rule amends provisions in § 16.10 (Fees) to incorporate the new statutory restrictions on charging fees in certain circumstances, to reflect developments in the case law, and to streamline the description of the factors to be considered when making fee waiver determinations.

    Section 16.1 (General provisions) is revised to delete the reference to the Department's policy regarding discretionary release of information whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption, because that foreseeable harm standard is now part of the FOIA statute itself as a result of the FOIA Improvement Act of 2016.

    Section 16.2 (Proactive disclosure of Department records) is revised to more clearly reflect the FOIA Improvement Act of 2016's requirement that records the FOIA requires agencies to make available for public inspection must be in an electronic format, rather than simply made available for public inspection and copying.

    Section 16.4 (Responsibility for responding to requests) is revised to remove the reference to discretionary release of information when another component or agency is better able to make the determination because the foreseeable harm standard is now part of the FOIA statute itself as a result of the FOIA Improvement Act of 2016.

    Section 16.5 (Timing of responses to requests) is revised to include a requirement that components notify requesters of the availability of assistance from the Office of Government Information Services (OGIS) at the National Archives and Records Administration when the component gives notice to requesters that the request involves unusual circumstances. This notification is required by the FOIA Improvement Act of 2016.

    Section 16.6 (Responses to requests) is revised to include requirements that components notify requesters of the availability of assistance from a FOIA Public Liaison and OGIS when providing requesters with responses to their requests. These notifications are required by the FOIA Improvement Act of 2016.

    Section 16.8 (Administrative appeals) is revised to extend the time to file an administrative appeal to 90 days, in conformity with the 90-day minimum time period established by the FOIA Improvement Act of 2016. This section is also revised to include a new paragraph regarding engaging in dispute resolution services provided by OGIS.

    Paragraph (b) of § 16.10 (Fees) is revised to conform to recent decisions of the D.C. Circuit Court of Appeals addressing two FOIA fee categories: “representative of the news media” and “educational institution.” See Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015); Sack v. DOD, 823 F.3d 687 (D.C. Cir. 2016). The Department's existing FOIA regulations state that a representative of the news media is “any person or entity that is organized and operated to publish or broadcast news to the public that actively 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.” In Cause of Action, 799 F.3d at 1125, the court held that a representative of the news media need not work for an entity that is “organized and operated” to publish or broadcast news. Therefore, the definition of “representative of the news media” is revised to remove the “organized and operated” requirement. The definition of “educational institution” is revised to reflect the holding in Sack, 823 F.3d at 688, that students who make FOIA requests in furtherance of their coursework or other school-sponsored activities may qualify under this requester category.

    Paragraph (d)(2) of § 16.10, which addresses restrictions on charging fees when the FOIA's time limits are not met, is revised to reflect changes made to those restrictions by the FOIA Improvement Act of 2016. Specifically, these changes reflect that agencies may not charge search fees (or duplication fees for representatives of the news media and educational/non-commercial scientific institution requesters) when the agency fails to comply with the FOIA's time limits. The restriction on charging fees is excused and the agency may charge fees as usual when it satisfies one of three exceptions detailed at 5 U.S.C. 552(a)(4)(A)(viii)(II).

    Lastly, this rule revises paragraph (k) of § 16.10, which addresses the requirements for a waiver or reduction of fees, to specify that requesters may seek a waiver of fees and to streamline and simplify the description of the factors to be considered by components when making fee waiver determinations. These updates do not substantively change the analysis, but instead present the factors in a way that is clearer to both components and requesters. Rather than six factors, the amended section provides for three overall factors. Specifically, a requester should be granted a fee waiver if the requested information (1) sheds light on the activities and operations of the government; (2) is likely to contribute significantly to public understanding of those operations and activities; and (3) is not primarily in the commercial interest of the requester. This streamlined description facilitates easier understanding and application of the statutory standard.

    Public Participation

    The Department is issuing an interim rule to make these revisions in the Department's FOIA regulations, because these changes merely bring the regulations into alignment with the provisions contained in the FOIA Improvement Act of 2016 and with current case law and clarify the procedure the Department uses for making fee waiver determinations. This approach allows these regulatory changes to take effect sooner than would otherwise be possible with the publication of a Notice of Proposed Rulemaking in advance. Nevertheless, the Department welcomes public comments from any interested person on any aspect of the changes made by this interim final rule. Please refer to the ADDRESSES section above. The Department will carefully consider all public comments in the drafting of the final rule.

    Please note that all comments received are considered part of the public record and are made available for public inspection online at http://www.regulations.gov. The information made available includes personal identifying information (such as name and address) voluntarily submitted by the commenter.

    If you want to submit personal identifying information (such as your name and address) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify any confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

    Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. If you wish to inspect the agency's public docket file in person, please see the FOR FURTHER INFORMATION CONTACT paragraph above to schedule an appointment.

    Regulatory Certifications Administrative Procedure Act

    The Department's implementation of this rule as an interim final rule, with provision for post-promulgation public comment, is based on section 553(b) of the Administrative Procedure Act. 5 U.S.C. 553(b). Under section 553(b), an agency may issue a rule without notice of proposed rulemaking and the pre-promulgation opportunity for public comment, with regard to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” The Department has determined that many of the revisions being made are interpretive rules issued by the Department, as they merely advise the public of the Department's construction of the new statute and clarify the application of the substantive law. Moreover, the Department has determined that the remaining revisions are rules of agency procedure or practice, as they do not change the substantive standards the agency applies in implementing the FOIA. The Department has also concluded that there is good cause to find that a pre-publication public comment period is unnecessary. These revisions to the existing regulations in 28 CFR part 16 merely implement the statutory changes, align the Department's regulations with controlling judicial decisions, and clarify agency procedures.

    Regulatory Flexibility Act

    This rule amends the Department of Justice's regulations under the FOIA to incorporate certain changes made by the FOIA Improvement Act of 2016, and to reflect developments in the case law and to streamline the description of the factors to be considered when making fee waiver determinations. Because the Department is not required to publish a notice of proposed rulemaking for this rule, a Regulatory Flexibility analysis is not required. 5 U.S.C. 603(a).

    Executive Orders 12866 and 13563—Regulatory Review

    This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation, and in accordance with Executive Order 13563 “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation. The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget. Further, both Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this regulation and believes that the regulatory approach selected maximizes net benefits.

    Executive Order 13132—Federalism

    This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the Attorney General has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

    Executive Order 12988—Civil Justice Reform

    This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

    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 million 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 1996

    This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. See 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million 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 enterprises to compete with foreign-based enterprises in domestic and export markets.

    List of Subjects in 28 CFR Part 16

    Administrative practice and procedure, Freedom of information, Privacy.

    Accordingly, for the reasons stated in the preamble, 28 CFR Chapter 1, part 16 is amended as follows:

    PART 16—DISCLOSURE OR PRODUCTION OF MATERIAL OR INFORMATION 1. Revise the authority citation for part 16 to read as follows: Authority:

    5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.

    § 16.1 [Amended]
    2. In § 16.1, remove the last sentence of paragraph (a). 3. In § 16.2, revise the first sentence, to read as follows:
    § 16.2 Proactive disclosure of Department records.

    Records that are required by the FOIA to be made available for public inspection in an electronic format may be accessed through the Department's Web site at http://justice.gov/oip/04_2.html. * * *

    4. In § 16.4, revise the first sentence of paragraph (d) introductory text, to read as follows:
    § 16.4 Responsibility for responding to requests.

    (d) * * * When reviewing records located by a component in response to a request, the component shall determine whether another component or another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. * * *

    5. In § 16.5, add a sentence at the end of paragraph (c), to read as follows:
    § 16.5 Timing of responses to requests.

    (c) * * * The component must also alert requesters to the availability of the Office of Government Information Services to provide dispute resolution services.

    6. In § 16.6, add a sentence at the end of paragraph (c), and add paragraph (e)(5), to read as follows:
    § 16.6 Responses to requests.

    (c) * * *. The component must inform the requester of the availability of the FOIA Public Liaison to offer assistance.

    (e) * * *

    (5) A statement notifying the requester of the assistance available from the component's FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services.

    7. In § 16.8: a. Remove the term “60 calendar days” in paragraph (a) and add in its place “90 calendar days”; b. Redesignate paragraph (d) as paragraph (e); and c. Add a new paragraph (d), to read as follows:
    § 16.8 Administrative appeals.

    (d) Engaging in dispute resolution services provided by OGIS. Mediation is a voluntary process. If a component agrees to participate in the mediation services provided by the Office of Government Information Services, it will actively engage as a partner to the process in an attempt to resolve the dispute.

    6. In § 16.10: a. Revise paragraph (b)(4) and Example 3 to paragraph (b)(4); b. Revise the first sentence of paragraph (b)(6); and c. Revise paragraph (d)(2) and paragraph (k), to read as follows:
    § 16.10 Fees.

    (b) * * *

    (4) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requester's role at the educational institution. Components may seek assurance from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category.

    Example 3.

    A student who makes a request in furtherance of the student's coursework or other school-sponsored activities and provides a copy of a course syllabus or other reasonable documentation to indicate the research purpose for the request, would qualify as part of this fee category.

    (6) Representative of the news media is any person or entity that actively 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. * * *

    (d) * * *

    (2) If a component 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 paragraphs (d)(2)(i) through (iii) of this section.

    (i) If a component 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 shall be excused for an additional 10 days.

    (ii) If a component 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 component 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 component must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the component 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 component may charge all applicable fees incurred in the processing of the request.

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

    (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) A component must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that 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. In deciding whether this standard is satisfied the component must consider the factors described in paragraphs (k)(2)(i) through (iii) of this section:

    (i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request 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 would be 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 effectively convey information to the public must be considered. Components will presume that a representative of the news media will satisfy 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, components will consider the following criteria:

    (A) Components must identify 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 must be given an opportunity to provide explanatory information regarding this consideration.

    (B) If there is an identified commercial interest, the component must determine whether that 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. Components ordinarily will presume that when a news media requester has satisfied the requirements of 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 to primarily serve the public interest.

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

    (4) 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 shall be required to pay any costs incurred up to the date the fee waiver request was received.

    Dated: December 21, 2016. Loretta E. Lynch, Attorney General.
    [FR Doc. 2016-31508 Filed 1-3-17; 8:45 am] BILLING CODE 4410-BE-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2015-0067; FRL-9957-71-Region 10] Partial Approval and Partial Disapproval of Attainment Plan for the Idaho Portion of the Logan, Utah/Idaho PM2.5 Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action on portions of a state implementation plan (SIP) submission from the State of Idaho. The SIP submission addresses attainment plan requirements for the Idaho portion of the Logan, Utah-Idaho nonattainment area (Logan UT-ID) for the 2006 24-hour PM2.5 National Ambient Air Quality Standards (NAAQS). The Idaho Department of Environmental Quality (IDEQ) submitted the attainment plan to the EPA on December 14, 2012 (2012 SIP submission), and supplemented the attainment plan on December 24, 2014 (2014 amendment). The EPA is approving certain portions, disapproving other portions, and deferring action on the remaining portions of the attainment plan.

    DATES:

    This final rule is effective February 3, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2015-0067. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and is publicly available only in hard copy form. Publicly available docket materials are available at http://www.regulations.gov or at EPA Region 10, Office of Air and Waste, 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hunt, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: (206) 553-0256; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background Information II. Response to Comments III. Final Action IV. Consequences of a Disapproved SIP V. Statutory and Executive Orders Review I. Background Information

    On October 27, 2016, the EPA proposed to approve certain portions and disapprove other portions of Idaho's 2012 SIP submission and 2014 amendment (81 FR 74741). An explanation of the CAA requirements, a detailed analysis of the submittals, and the EPA's reasons for proposing partial approval and partial disapproval were provided in the notice of proposed rulemaking, and will not be restated here. In this action, the EPA is approving Idaho's determination of which pollutants must be evaluated for control in the Idaho portion of the Logan, UT-ID nonattainment area for purposes of the Moderate area plan for the 2006 24-hour PM2.5 NAAQS. The EPA is also approving Idaho's evaluation of, and imposition of, reasonably available control measure and reasonably available control technology (RACM/RACT) level controls on appropriate sources in the Idaho portion of the nonattainment area. The EPA is disapproving the Idaho attainment plan with respect to the contingency measure requirement. Finally, the EPA is deferring action on the submissions with respect to the attainment demonstration, reasonable further progress, quantitative milestone, and motor vehicle emission budget requirements to a future date.

    With respect to the deferred Moderate area plan elements the EPA notes that on December 16, 2016, the Agency published a proposed determination, based on complete, quality-assured air quality and certified monitoring data, that the Logan UT-ID nonattainment area failed to attain the 24-hour PM2.5 NAAQS by the applicable attainment date (81 FR 91088). If the EPA finalizes the determination that Logan UT-ID did not attain, then the nonattainment area will be reclassified from “Moderate” to “Serious” and Idaho will be required to submit a Serious area attainment plan to meet additional statutory requirements. The EPA anticipates that Idaho may elect to reevaluate and address the deferred elements of the Moderate area plan, as well as the contingency measure requirements, in the context of developing the Serious area attainment plan.

    The EPA received three sets of comments on the proposed action that pertain to portions of the 2012 SIP submission and 2014 amendment that are relevant to this final action. The EPA is responding to those comments in this notice. Comments that pertain to the attainment demonstration, reasonable further progress, quantitative milestone, and motor vehicle emissions budget requirements will be addressed when the EPA takes final action on these plan elements.

    II. Response to Comments

    Commenter 1, comment 1: A citizen observed, “As I have traveled north out of Logan toward Idaho I have noticed that the inversion gets lighter. The PM2.5 that hangs thick and cloudy over Logan turns to spidery, wispy clouds that just reach across the mountains. They reach and then disappear completely. I don't think the emissions and PM2.5 are coming from cars in Franklin County Idaho. I think that they are coming from Logan and traveling up the valley into Franklin County, Idaho.”

    Response: The commenter's observation concerning the appearance of air quality during inversions is generally consistent with Idaho's monitoring data and air quality studies for the area which show lower PM2.5 concentrations outside of the immediate Logan area. Monitored levels of ambient PM2.5 are typically higher in Utah than in Idaho. For example, the measured 98th percentile of PM2.5 concentrations at the Franklin, Idaho monitor in 2015 was 19 µg/m3. However, in the context of the nonattainment area designations that were finalized in 2009, the EPA determined that emissions from sources in Idaho, including not only cars but also other area sources of emissions, were contributing to violations of the 2006 24-hour PM2.5 NAAQS in the Logan, UT-ID nonattainment area as part of the CAA section 107(d)(1)(A) designation process.1

    1 Technical Support Document for 2006 24-Hour PM2.5 National Ambient Air Quality Standards (NAAQS) Designations, Chapter 4.0 “Technical Analyses of Individual Nonattainment Areas” Section 4.10 “Region 10 Nonattainment Areas” Part 4.10.2 “EPA Technical Analysis for Idaho” (204_supplementary material_EPA-HQ-OAR-2007-0562-0439.pdf).

    Commenter 1, comment 2: The commenter also stated, “Putting auto emissions mandates in Franklin County, Idaho will not help anything. It will only add more financial issues to a rural community. I don't think it is necessary for auto emissions to be put in place in Franklin County, Idaho.”

    Response: As discussed in the proposed rulemaking for this action, the EPA proposed to agree with the IDEQ's determination that a Franklin County inspection and maintenance (I&M) program for motor vehicles was not a reasonable control approach based on factors including the cost of control and economic feasibility (see pages 81 FR 74745-6). We are now finalizing that determination. We also note that existing federal motor vehicle emission regulations and requirements are having, and will continue to have, significant emission reduction benefits in this airshed (see section 5.3.8 of the 2012 SIP submittal).

    Commenter 1, comment 3: The commenter also stated, “I think that the wood stove change-out and burn ban are good things to have in place to help reduce the carbon that is being put into the air; however, I think there needs to be more done in the Logan area to reduce their emissions and I'm sure they are working on it also. Logan is continuing to get more people to ride the bus.” The commenter then elaborated on several suggested control strategies for Utah portion of the nonattainment area.

    Response: As discussed in our proposed rulemaking, the EPA proposed to approve the woodstove curtailment, device restrictions, and burn ban control measures for Franklin County, that are already incorporated into the SIP, as meeting the requirements of the CAA for purposes of RACM/RACT level control of appropriate sources in this area for purposes of the 2006 24-hour PM2.5 NAAQS (see pages 81 FR 74746-7). The EPA is finalizing this determination. To the extent that the commenter has additional suggestions for the Utah portion of the Logan, UT-ID nonattainment area, these suggestions are outside the scope of this action which is directed at the EPA's review of Idaho's attainment plan.

    Commenter 2, comment 1: Another commenter noted, “We like the air the way it is. Your meddling in these situations is not welcome. Please do not pursue these ridiculous `rules' further.”

    Response: Under the CAA, states and the EPA are required to take actions to protect public health from air pollution. Exposure to elevated levels of PM2.5 results in serious health impacts up to and including premature death from respiratory or cardiovascular diseases, and is especially unhealthy for sensitive populations such as children. Thus, CAA section 189(a) requires states with areas designated as Moderate nonattainment for the 2006 24-hour PM2.5 NAAQS to develop and submit a plan to improve air quality to meet the standards, including provisions to assure implementation of RACM/RACT level controls to reduce emissions. Under CAA section 110(k) the EPA has a mandatory duty to act on these state SIP submissions. In evaluating and acting upon Idaho's attainment plan SIP submission in this action, the EPA is complying with its own duty under the CAA.

    State of Idaho, comment 1: On behalf of the State of Idaho, the IDEQ submitted several comments. The first comment questions the basis of the EPA's December 14, 2009 decision to include Franklin County as part of the Logan UT-ID nonattainment area (74 FR 58688). The IDEQ states, “Upon review of the plans submitted by both Idaho and Utah it is readily apparent that Idaho's emission sources are truly de minimis and the motor vehicle commuter pattern is equal with respect to the number of vehicles traveling from Idaho to Utah and from Utah to Idaho. Consequently, Idaho questions the technical reasons for its inclusion in this NAA, and the jurisdictional authority issues have not only held the state of Idaho back from obtaining plan approval, but also from obtaining a one-year extension to demonstrate compliance with the PM2.5 NAAQS. As a result, DEQ intends to request that the current NAA be split into two separate PM2.5 NAAs, similar to the revision that occurred in the Power-Bannock Counties. 63 FR 59722.”

    Response: As noted by the commenter, the determination to designate Franklin County, Idaho as part of the Logan UT-ID nonattainment area was completed in December 2009 and is outside the scope of this action which is directed at the EPA's review of Idaho's attainment plan SIP submission. In addition, should Idaho submit a petition to split the nonattainment area, the EPA will review the technical merits of the petition. However, such a review is also outside the scope of this action.

    State of Idaho, comment 2: The IDEQ resubmitted its February 26, 2016 request for a one-year extension of the Moderate area attainment date and questions the EPA's rationale for determining that the area did not attain by the attainment date, stating “DEQ should not be punished for Utah's acts or omissions.”

    Response: The EPA has addressed whether the Logan, UT-ID nonattainment area attained the 2006 24-hour PM2.5 NAAQS and the IDEQ's attainment date extension request in the rulemaking Determinations of Attainment by the Attainment Date, Determinations of Failure to Attain by the Attainment Date and Reclassification for Certain Nonattainment Areas for the 2006 24-Hour Fine Particulate Matter National Ambient Air Quality Standards (81 FR 91088, December 16, 2016). This comment is thus outside the scope of this action and the EPA is not restating our rationale here.

    State of Idaho, comment 3: The IDEQ states, “It should also be noted that on May 25, 2016, a Consent Decree was filed in U.S. District Court for the Northern District of California, Oakland Division, wherein EPA committed to act on the remaining items in Idaho's Plan by December 8, 2016. In the same Decree EPA did not commit to act on Utah's NAA plan. EPA is treating the two areas separately. Thus, not only should the area be split in two NAA for technical reasons, for planning purposes, the area is on two very separate tracts—with Idaho further along.”

    Response: The EPA acknowledges that the Consent Decree in the litigation identified by the commenter did not include any deadline for an attainment plan submission from the State of Utah for the Utah portion of the Logan, UT-ID nonattainment area. This is because although the litigation at issue initially included a claim that the EPA had failed to act on such a SIP submission from Utah, the State of Utah elected to withdraw the SIP submission. Thus, at the time of that Consent Decree, the EPA did not have a mandatory duty to act on the withdrawn Utah SIP submission. Utah subsequently resubmitted an attainment plan for the Utah portion of the Logan, UT-ID nonattainment area on December 16, 2014. The EPA is currently evaluating that later SIP submission in order to meet its statutory obligations under CAA section 110(k).

    State of Idaho, comment 4: The IDEQ states, “DEQ, in good faith, complied with all regulations and guidance in place at the time of submittal for both the original Plan in 2012 and the amendment in 2014. Table 10 in the 2012 Plan submittal lists how DEQ complied with each requirement at that time. In the current proposed action, the EPA is evaluating DEQ' s submittal against current regulations. Instead of disapproving portions of Idaho's Plan, the EPA could request DEQ address certain deficiencies due to the new regulations and court decisions; as was done to address the Court decision in 2013.” In particular, the IDEQ calls into question the EPA's proposed disapproval of the attainment plan with respect to the reasonable further progress, quantitative milestones, and contingency measure requirements.

    Response: The EPA acknowledges the difficulties the January 4, 2013, NRDC v. EPA, D.C. Circuit Court decision (706 F.3d 428) and remand of the prior PM2.5 implementation rule presented for both the EPA and Idaho. As noted by the commenter, the EPA provided states with additional time to withdraw and resubmit, or to supplement, prior attainment plan SIP submissions in order to address any impacts that resulted from the court's decision. See, Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 NAAQS (79 FR 31566, June 2, 2014). The EPA appreciates the efforts of Idaho to update its attainment plan in the 2014 amendment. However, the EPA is required by statute to evaluate the attainment plan for compliance with statutory and regulatory requirements, and must do so consistent with the requirements of the CAA, as interpreted by the courts. The EPA will continue to work with the IDEQ to meet the statutory attainment plan requirements, such as the contingency measure requirement addressed in this action. In addition, the EPA recently promulgated the 2016 PM2.5 Implementation Rule in order to provide additional regulatory certainty and guidance concerning attainment plan requirements for the 2006 24-hour PM2.5 NAAQS and future PM2.5 NAAQS. See, Fine Particulate Matter National Ambient Air Quality Standards; State Implementation Plan Requirements; Final Rule (81 FR 58010, August 24, 2016).

    State of Idaho, comment 5: The IDEQ questions the EPA's proposed disapproval of the Idaho contingency measures citing the EPA's basis that the emissions reductions were not precisely quantified in terms of 1-year's worth of reasonable further progress (RFP). The IDEQ also notes that while discussed in the preamble of the 2016 PM2.5 Implementation Rule, the requirement for 1-year's worth of RFP is not cited in the regulatory text of 40 CFR 51.1014.

    Response: The EPA agrees that it did not include regulatory text in the final 2016 PM2.5 Implementation Rule imposing the requirement that contingency measures reflect emissions reductions comparable to 1-year's worth of RFP in the attainment plan at issue. Nevertheless, this has been the EPA's guidance on the proper interpretation of the statutory requirements of CAA section 172(c)(9) for many years, and remains so in the preamble to the 2016 PM2.5 Implementation Rule (see page 81 FR 58066). Because the contingency measures in a Moderate area attainment plan are intended to be available in the event that the area fails to meet the RFP requirement, the EPA has long interpreted CAA section 172(c)(9) to require control measures that would result in emissions reductions comparable to 1-year's worth of RFP in the area.

    The EPA acknowledges the IDEQ's concern with the challenges to identify and impose additional control measures to meet the contingency measure requirement in the Logan, UT-ID nonattainment area. As discussed in the proposal for this action, Franklin County is a sparsely populated, rural area with a unique emissions inventory. Idaho estimated that over 75% of the directly emitted PM2.5 comes from road dust, using the EPA's AP-42 road dust emission estimation methodology (see Appendix C of the 2012 SIP submittal). Idaho calculated the remaining directly emitted PM2.5 to be 13% residential wood combustion, 6% on-road and non-road mobile emissions, and 6% all other remaining source categories. Also as discussed in the proposal for this action, Idaho estimated that the limiting PM2.5 precursors from Franklin County, nitrogen oxides (NOX) and volatile organic compounds (VOC), come primarily from motor vehicles, which are expected to decline significantly due to federal motor vehicle standards already in place (see page 81 FR 74747). In considering these emission sources, the IDEQ established road sanding agreements, woodstove curtailment ordinances, and the woodstove change-out program. Because Idaho and Utah modeled that the Logan UT-ID nonattainment area would attain based solely on the Utah control measures, the IDEQ reasoned that anticipated reductions from the Idaho control measures (i.e., the road sanding agreements, woodstove curtailment ordinances, and the woodstove change-out program), were not otherwise relied upon in the control strategy for the area. As such, the IDEQ considered these early implemented contingency measures, as allowed under the EPA's longstanding guidance interpreting section 172(c)(9) to allow this approach.

    However, as discussed in the proposed rulemaking, a recent decision by the U.S. Court of Appeals for the 9th Circuit rejected the EPA's interpretation of CAA section 172(c)(9) to allow already implemented control measures to meet the contingency measure requirements. Bahr v. EPA, No. 12-72327 (Sept. 12, 2016). The Court concluded that contingency measures must be control measures that will take effect at the time the area fails to meet RFP or fails to attain by the applicable attainment date, not before. Id.at 35-36. The IDEQ road sanding agreements, woodstove curtailment ordinances, and the woodstove change-out program which have already been implemented, do not meet the standard for section 172(c)(9) contingency measures set out by the Bahr decision which is controlling for EPA actions on SIP submissions from states located within the jurisdiction of the 9th Circuit. For this reason, the EPA is disapproving the contingency measures in this final action. Because the contingency measures are invalid as early implemented measures, the EPA is not addressing whether they would otherwise be approvable as contingency measures at this time.

    III. Final Action

    The EPA is approving parts of Idaho's attainment plan for the Idaho portion of the Logan, UT-ID nonattainment area for the 2006 24-hour NAAQS PM2.5 NAAQS. In particular, the EPA is approving Idaho's determination of which pollutants must be evaluated for control in the Idaho portion of the Logan, UT-ID nonattainment area for purposes of the Moderate area plan for the 2006 24-hour PM2.5 NAAQS. The EPA is also approving Idaho's evaluation of, and imposition of, RACM/RACT level controls on appropriate sources in the Idaho portion of the area for this NAAQS. This includes approval of Idaho's woodstove curtailment ordinances, burn ban, heating device restrictions, and woodstove change-out programs as meeting the RACM/RACT requirements in this area. The EPA is deferring action on the submitted attainment plan with respect to the Moderate area attainment demonstration, RFP, quantitative milestone, and motor vehicle emissions budget requirements. Lastly, for the reasons set forth in our proposed rulemaking and discussed above, the EPA has determined that the contingency measures submitted as part of Idaho's 2012 SIP submittal and 2014 amendment do not meet CAA requirements, as interpreted in the 9th Circuit.

    IV. Consequences of a Disapproved SIP

    This section explains the consequences of disapproval, in whole or in part, of a SIP submission required under the CAA. The Act provides for the imposition of sanctions and the promulgation of a federal implementation plan (FIP) if a state fails to submit, and the EPA approve, a plan revision that corrects the deficiencies identified by the EPA in its disapproval of the initial SIP submission.

    The Act's Provisions for Sanctions

    Once the EPA finalizes disapproval of a required SIP submission, such as an attainment plan submission, or a portion thereof, CAA section 179(a) provides for the imposition of sanctions, unless the deficiency is corrected within 18 months of the final rulemaking of disapproval. The first sanction would apply 18 months after the EPA disapproves the SIP submission, or portion thereof. Under the EPA's sanctions regulations at 40 CFR 52.31, the first sanction imposed would be 2:1 offsets for sources subject to the new source review requirements under section 173 of the CAA. If the state has still failed to submit a SIP submission to correct the identified deficiencies for which the EPA proposes full or conditional approval 6 months after the first sanction is imposed, the second sanction will apply. The second sanction is a prohibition on the approval or funding of certain highway projects.2

    2 On April 1, 1996 the US Department of Transportation published a notice in the Federal Register describing the criteria to be used to determine which highway projects can be funded or approved during the time that the highway sanction is imposed in an area. (See 61 FR 14363).

    Federal Implementation Plan Provisions That Apply if a State Fails To Submit an Approvable Plan

    In addition to sanctions, once the EPA finds that a state failed to submit the required SIP revision, or finalizes disapproval of the required SIP revision or a portion thereof, the EPA must promulgate a FIP no later than two years from the date of the finding—if the deficiency has not been corrected within that time period.

    Ramifications Regarding Transportation Conformity

    The proposal discussed conformity freeze implications due to disapproval of the control strategy SIP.3 This final action only disapproves the contingency measures. Section 93.120(a) of the conformity rule is not triggered by disapproval of contingency measures, so the area is not subject to a conformity freeze as discussed in the proposal.

    3 Control strategy SIP revisions as defined in the transportation conformity rules include reasonable further progress plans and attainment demonstrations (40 CFR 93.101).

    V. Statutory and Executive Orders Review

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

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land in Idaho and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 6, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

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

    Dated: December 20, 2016. Michelle L. Pirzadeh, Acting Regional Administrator, Region 10.

    For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart N—Idaho 2. In § 52.670, the table in paragraph (e) is amended by adding an entry at the end of the table for “Fine Particulate Matter Attainment Plan.”

    The addition reads as follows:

    § 52.670 Identification of plan.

    (e) * * *

    EPA-Approved Idaho Nonregulatory Provisions And Quasi-Regulatory Measures Name of SIP provision Applicable geographic or nonattainment area State submittal date EPA approval date Comments *         *         *         *         *         *         * Fine Particulate Matter Attainment Plan Franklin County, Logan UT-ID PM2.5 Nonattainment Area 12/19/12;
  • 12/24/14
  • 1/4/2017, [Insert Federal Register citation] Approved: reasonably available control measures and reasonably available control technology requirements.
  • Disapproved: contingency measures.
  • Deferred: Moderate area attainment demonstration, reasonable further progress, quantitative milestone, and year motor vehicle emissions budget requirements.
  • [FR Doc. 2016-31643 Filed 1-3-17; 8:45 am] BILLING CODE 6560-50-P
    82 2 Wednesday, January 4, 2017 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9524; Directorate Identifier 2016-NM-049-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2014-16-19, for all Airbus Model A330-200 Freighter, -200, and -300 series airplanes. AD 2014-16-19 currently requires revision of the maintenance or inspection program to include certain fuel airworthiness limitations. Since we issued AD 2014-16-19, Airbus has issued more restrictive fuel airworthiness limitations. This proposed AD would require revision of the maintenance or inspection program, as applicable, to include new fuel airworthiness limitations. The proposed AD also removes certain airplanes from the applicability of AD 2014-16-19. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by February 21, 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.

    For service information identified in this NPRM, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email: [email protected]; Internet: http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    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-2016-9524; 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 Operations office (telephone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1138; fax: 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9524; Directorate Identifier 2016-NM-049-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 based on 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

    On August 4, 2014, we issued AD 2014-16-19, Amendment 39-17943 (79 FR 49449, August 21, 2014) (“AD 2014-16-19”). AD 2014-16-19 requires actions intended to correct an unsafe condition for all Airbus Model A330-200 Freighter, -200, and -300 series airplanes.

    Since we issued AD 2014-16-19, Airbus has issued more restrictive fuel airworthiness limitations.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0065, dated April 5, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A330-200 Freighter series airplanes, Model A330-200 series airplanes, Model A330-300 series airplanes; and Model A340-200 series airplanes, Model A340-300 series airplanes, Model A340-500 series airplanes, and Model A340-600 series airplanes. The MCAI states:

    Prompted by an accident * * *, the Federal Aviation Authority (FAA) published Special Federal Aviation Regulation (SFAR) 88, and the Joint Aviation Authorities (JAA) published Interim Policy INT/POL/25/12. A design review was conducted by Airbus to develop Fuel Airworthiness Limitations (FAL) for Airbus A330 and A340 aeroplanes in response to these regulations.

    The FAL, which are approved by EASA, are defined and published in Airbus A330 and A340 Airworthiness Limitations Section (ALS) documents known as Part 5. Failure to comply with these instructions could result in a fuel tank explosion and consequent loss of the aeroplane.

    EASA issued AD 2012-0168 [which corresponds with FAA AD 2014-16-19 for Model A330 airplanes, and FAA AD 2013-26-03, Amendment 39-17712 (78 FR 79292, December 30, 2013) for Model A340 airplanes] to require compliance with the FAL as specified in the A330 and A340 ALS Part 5 Revision 00.

    Since that [EASA] AD was issued, Airbus issued Revision 01 of both ALS Parts 5 for Airbus A330 and A340 to introduce more restrictive maintenance requirements and/or airworthiness limitations.

    For the reason described above, this [EASA] AD retains the requirements of EASA AD 2012-0168, which is superseded, and requires accomplishment of the actions specified in Airbus A330 ALS Part 5 Revision 01, A340 ALS Part 5 Revision 01, as applicable (hereafter collectively referred to as `the ALS' in this AD).

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9524.

    This proposed AD would require revisions to certain operator maintenance documents to include new actions (e.g., inspections) and critical design configuration control limitations (CDCCLs). Compliance with these actions and CDCCLs is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (l)(1) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Airbus A330 Airworthiness Limitations Section (ALS) Part 5—Fuel Airworthiness Limitations (FAL), Revision 01, dated October 28, 2015. The airworthiness limitations introduce more restrictive fuel airworthiness limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

    Differences Between This Proposed AD and the MCAI or Service Information

    This proposed AD does not include the Airbus Model A340 airplanes that are specified in the MCAI. We have added the MCAI to the required airworthiness actions list (RAAL) for the Model A340 airplanes.

    The MCAI specifies that if there are findings from the ALS inspection tasks, corrective actions must be accomplished in accordance with Airbus maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.

    Airworthiness Limitations Based on Type Design

    The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.

    Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.

    In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.

    When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).

    The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.

    To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.

    However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD.

    This proposed AD therefore would apply to Model A330 series airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the date of approval of the ALS revision identified in this proposed AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet.

    Costs of Compliance

    We estimate that this proposed AD affects 104 airplanes of U.S. registry.

    The actions required by AD 2014-16-19, and retained in this proposed AD take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2014-16-19 is $85 per product.

    We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $8,840, or $85 per product.

    Authority for This Rulemaking

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

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

    Regulatory Findings

    We determined that this 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; 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 removing Airworthiness Directive (AD) 2014-16-19, Amendment 39-17943 (79 FR 49449, August 21, 2014), and adding the following new AD: Airbus: Docket No. FAA-2016-9524; Directorate Identifier 2016-NM-049-AD. (a) Comments Due Date

    We must receive comments by February 21, 2017.

    (b) Affected ADs

    This AD replaces AD 2014-16-19, Amendment 39-17943 (79 FR 49449, August 21, 2014) (“AD 2014-16-19”).

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(3) of this AD, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before October 28, 2015.

    (1) Airbus Model A330-223F and -243F airplanes.

    (2) Airbus Model A330-201, -202, -203, -223, and -243 airplanes.

    (3) Airbus Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.

    (e) Reason

    This AD was prompted by the issuance of more restrictive fuel airworthiness limitations. We are issuing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

    (f) Compliance

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

    (g) Retained Maintenance Program Revision and Airworthiness Limitations Compliance, With No Changes

    This paragraph restates the requirements of paragraph (g) of AD 2014-16-19, with no changes.

    (1) Within 3 months after September 25, 2014 (the effective date of AD 2014-16-19), revise the maintenance or inspection program, as applicable, by incorporating Airbus A330 Airworthiness Limitations Section (ALS) Part 5—Fuel Airworthiness Limitations (FAL), dated November 16, 2011.

    (2) Comply with all applicable instructions and airworthiness limitations included in Airbus A330 ALS Part 5—FAL, dated November 16, 2011. The initial compliance times for the actions specified in Airbus A330 ALS Part 5—FAL, dated November 16, 2011, are at the later of the times specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD, except as required by paragraphs (h) and (i) of this AD.

    (i) Within the applicable compliance times specified in Airbus A330 ALS Part 5—FAL, dated November 16, 2011.

    (ii) Within 3 months after accomplishing the actions required by paragraph (g)(1) of this AD.

    (h) Retained Exceptions to Compliance Times for Design Changes, With No Changes

    This paragraph restates the exceptions specified in paragraph (h) of AD 2014-16-19, with no changes.

    (1) For type design changes specified in “Sub-part 5-2 Changes to Type Design,” of Airbus A330 ALS Part 5—FAL, dated November 16, 2011, the compliance times are defined as “Embodiment Limits,” except as defined in paragraph (h)(2) of this AD.

    (2) Where Airbus A330 ALS Part 5—FAL, dated November 16, 2011, specifies a compliance time based on a calendar date for modifying the control circuit for the fuel pump of the center fuel tank (installing ground fault interrupters to the center tank fuel pump control circuit), the compliance date is September 18, 2016 (48 months after the effective date of AD 2012-16-05, Amendment 39-17152 (77 FR 48425, August 14, 2012)).

    (i) Retained No Alternative Actions, Intervals, or Critical Design Configuration Control Limitations (CDCCLs), With Added Exception

    This paragraph restates the requirements of paragraph (i) of AD 2014-16-19, with an added exception. Except as required by paragraph (j) of this AD: After accomplishing the revision required by paragraph (g)(1) of this AD, no alternative actions (e.g., inspections), intervals, or CDCCLs may be used; except as specified in paragraph (h) of this AD; or unless the actions, intervals, or CDCCLs are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (l)(1) of this AD.

    (j) New Requirement of This AD: Revise the Maintenance or Inspection Program

    Within 3 months after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate Airbus A330 ALS Part 5—FAL, Revision 01, dated October 28, 2015. The compliance times for accomplishing the initial tasks specified in Airbus A330 ALS Part 5—FAL, Revision 01, dated October 28, 2015, are at the times specified in Airbus A330 ALS Part 5—FAL, Revision 01, dated October 28, 2015, or within 3 months after revising the maintenance or inspection program as required by paragraph (j) of this AD, whichever occurs later. Accomplishing the revision required by this paragraph terminates the actions required by paragraph (g) of this AD.

    (k) New Requirement of This AD: No Alternative Actions, Intervals, or CDCCLs

    After accomplishing the revision required by paragraph (j) of this AD, no alternative actions (e.g., inspections), intervals, or CDCCLs may be used unless the actions, intervals, or CDCCLs are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (l)(1) of this AD.

    (l) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1138; fax: 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016-0065, dated April 5, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9524.

    (2) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email: [email protected]; Internet: http://www.airbus.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on December 16, 2016. Ross Landes, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31366 Filed 1-3-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9522; Directorate Identifier 2016-NM-144-AD] RIN 2120-AA64 Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2009-17-01, which applies to certain Gulfstream Model G-IV, GIV-X, GV-SP airplanes and Model GV airplanes. AD 2009-17-01 currently requires, an inspection for sealant applied to the exterior of the auxiliary power unit (APU) enclosure (firewall), and a revision of the airplane flight manual (AFM), as applicable. Since we issued AD 2009-17-01, we received a report indicating that the type design sealant applied to the APU enclosure is flammable and failed certain tests. This proposed AD would require revising the AFM, and revising the applicability to include additional airplanes. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by February 21, 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.

    For service information identified in this NPRM, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email [email protected]; Internet http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    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-2016-9522; 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:

    Ky Phan, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, FAA, Atlanta Aircraft Certification Office (ACO) 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5536; fax: 404-474-5606; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9522; Directorate Identifier 2016-NM-144-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

    On July 31, 2009, we issued AD 2009-17-01, Amendment 39-15991 (74 FR 40061, August 11, 2009) (“AD 2009-17-01”), for certain Gulfstream Model G-IV, GIV-X, GV-SP airplanes, and Model GV airplanes. AD 2009-17-01 requires, for certain airplanes, a one-time inspection for sealant applied to the exterior of the APU enclosure, and for airplanes with the subject sealant and certain other airplanes, a revision of the AFM to prohibit operation of the APU during certain ground and flight operations. AD 2009-17-01 resulted from notification by the airplane manufacturer that an improper, flammable sealant was used on the interior and exterior of the APU enclosure. We issued AD 2009-17-01 to prevent this flammable sealant from igniting the exterior surfaces of the APU enclosure under certain anomalous conditions, such as an APU failure/APU compartment fire, which could result in propagation of an uncontained fire to other critical areas of the airplane.

    Actions Since AD 2009-17-01 Was Issued

    Since we issued AD 2009-17-01, the manufacturer has notified us that the type design sealant (AMS 3374) applied to the APU enclosure is flammable and failed a certification test and a company test. Paragraph (g) of AD 2009-17-01 required an inspection to determine if GMS 4107 sealant (i.e., not type design sealant) or AMS 3374 sealant was applied to the APU enclosure. If the inspections revealed the application of GMS 4107 sealant, operators were required by paragraph (h) of AD 2009-17-01 to revise the applicable AFM to include the applicable AFM supplement (AFMS). The AFMS provided limitations that prohibited operation of the APU during certain ground and flight operations. At the time AD 2009-17-01 was issued, the type design sealant was AMS 3374 sealant, which was thought to be fireproof. If the inspection required by paragraph (g) of AD 2009-17-01 revealed that AMS 3374 sealant was used, the applicable AFM did not have to be revised. With the discovery that AMS 3374 sealant is flammable, we have determined that AD 2009-17-01 does not address the identified unsafe condition.

    Related Service Information Under 1 CFR Part 51

    We reviewed the Gulfstream AFM supplements (AFMSs) identified below. The AFMSs provide operating limitations on the use of the APU during certain ground and flight operations. These documents are distinct since they apply to different airplane models.

    (1) Gulfstream Aerospace GIV/G300/G400 AFM Supplement GIV-2016-01, dated July 27, 2016, to the GIV AFM, dated April 22, 1987; the G300 AFM, dated January 15, 2003; and the G400 AFM, dated November 18, 2002.

    (2) Gulfstream G450/G350 AFM Supplement G450-2016-01, dated July 27, 2016, to the G450 AFM, dated August 12, 2004; and the G350 AFM, dated October 28, 2004.

    (3) Gulfstream GV AFM Supplement GV-2016-01, dated July 27, 2016, to the GV AFM, dated April 11, 1997.

    (4) Gulfstream G550/G500 AFM Supplement G550-2016-01, dated July 27, 2016, to the G550 AFM, dated August 14, 2003; and the G500 AFM, dated December 5, 2003.

    (5) Gulfstream GVI (G650) AFM Supplement G650-2016-01, dated July 27, 2016, to the GVI (G650) AFM dated, September 7, 2012.

    (6) Gulfstream GVI (G650ER) AFM Supplement G650ER-2016-03, dated July 27, 2016, to the GVI (G650ER) AFM, dated October 2, 2014.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

    Proposed AD Requirements

    This proposed AD would require a revision of the AFM to prohibit operation of the APU during certain ground and flight operation and would add additional airplanes to the applicability.

    Interim Action

    We consider this proposed AD interim action. If final action is later identified, we might consider further rulemaking then.

    Costs of Compliance

    We estimate that this proposed AD affects 1,220 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
    AFM revision 1 work-hour × $85 per hour = $85 $0 $85 $103,700
    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 have 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 that the 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, 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 removing Airworthiness Directive (AD) 2009-17-01, Amendment 39-15991 (74 FR 40061, August 11, 2009), and adding the following new AD: Gulfstream Aerospace Corporation: Docket No. FAA-2016-9522; Directorate Identifier 2016-NM-144-AD. (a) Comments Due Date

    The FAA must receive comments on this AD action by February 21, 2017.

    (b) Affected ADs

    This AD replaces AD 2009-17-01, Amendment 39 15991 (74 FR 40061, August 11, 2009) (“AD 2009-17-01”).

    (c) Applicability

    This AD applies to the Gulfstream Aerospace Corporation airplanes, certificated in any category, identified in paragraphs (c)(1) through (c)(5) of this AD.

    (1) Model G-IV airplanes, having serial numbers (S/Ns) 1000 and subsequent.

    (2) Model GIV-X airplanes, having S/Ns 4001 and subsequent.

    (3) Model GV airplanes, having S/Ns 501 and subsequent.

    (4) Model GV-SP airplanes, having S/Ns 5001 and subsequent.

    (5) Model GVI airplanes, having S/Ns 6001 and subsequent.

    (d) Subject

    Air Transport Association (ATA) of America Code 49, Airborne Auxiliary Power; and 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by a report indicating that the type design sealant is flammable and failed a certification test and a company test. We are issuing this AD to provide the flight crew with operating procedures for airplanes that have flammable sealant compound applied to the auxiliary power unit (APU) enclosure (firewall). Under certain anomalous conditions such as an APU failure/APU compartment fire, flammable sealant could ignite the exterior surfaces of the APU enclosure and result in propagation of an uncontained fire to other critical areas of the airplane.

    (f) Compliance

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

    (g) Airplane Flight Manual (AFM) Revision

    Within 30 days after the effective date of this AD, revise the Limitations Section of the applicable Gulfstream AFM specified in paragraphs (h)(1) through (h)(6) of this AD to include the information in the applicable Gulfstream AFM supplement (AFMS) specified in paragraphs (h)(1) through (h)(6) of this AD. These AFM supplements (AFMSs) introduce operating limitations on the use of the APU during certain ground and flight operations.

    Note 1 to paragraph (g) of this AD: This AFM revision may be done by inserting a copy of the applicable AFMS into the applicable AFM specified in paragraphs (h)(1) through (h)(6) of this AD. When the AFMS has been included in the general revision of the AFM, the general revision may be inserted into the AFM, provided the relevant information in the general revision is identical to that in the applicable AFMS specified in paragraphs (h)(1) through (h)(6) of this AD.

    (h) AFMSs

    For the AFM revision required by paragraph (g) of this AD, insert the applicable AFMS into the applicable Gulfstream AFM identified in paragraphs (h)(1) through (h)(6) of this AD.

    (1) Gulfstream GIV/G300/G400 AFM Supplement GIV-2016-01, dated July 27, 2016, to the GIV AFM, dated April 22, 1987; the G300 AFM, dated January 15, 2003; and the G400 AFM, dated November 18, 2002.

    (2) Gulfstream G450/G350 AFM Supplement G450-2016-01, dated July 27, 2016, to the G450 AFM, dated August 12, 2004; and the G350 AFM, dated October 28, 2004.

    (3) Gulfstream GV AFM Supplement GV-2016-01, dated July 27, 2016, to the GV AFM, dated April 11, 1997.

    (4) Gulfstream G550/G500 AFM Supplement G550-2016-01, dated July 27, 2016, to the G550 AFM, dated August 14, 2003; and the G500 AFM, dated December 5, 2003.

    (5) Gulfstream GVI (G650) AFM Supplement G650-2016-01, dated July 27, 2016, to the GVI (G650) AFM dated, September 7, 2012.

    (6) Gulfstream GVI (G650ER) AFM Supplement G650ER-2016-03, dated July 27, 2016, to the GVI (G650ER) AFM, dated October 2, 2014.

    (i) Credit for Previous Actions

    This paragraph provides credit for the action required by paragraph (g) of this AD, if that action was performed before the effective date of this AD using the applicable service information specified in paragraphs (i)(1) through (i)(4) of this AD. This service information was incorporated by reference in AD 2009-17-01.

    (1) Gulfstream G-IV/G300/G400 AFM Supplement G-IV-2009-02, Revision 1, dated June 25, 2009.

    (2) Gulfstream G450/G350 AFM Supplement G450-2009-03, Revision 1, dated June 25, 2009.

    (3) Gulfstream GV AFM Supplement GV-2009-03, Revision 1, dated June 25, 2009.

    (4) Gulfstream G550/G500 AFM Supplement G550-2009-03, Revision 1, dated June 25, 2009.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

    (3) AMOCs approved previously for paragraph (h) of AD 2009-17-01 are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD.

    (k) Related Information

    (1) For more information about this AD, contact Ky Phan, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, FAA, Atlanta ACO 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5536; fax: 404-474-5606; email: [email protected]

    (2) For service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email [email protected]; Internet http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on December 16, 2016. Ross Landes, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31362 Filed 1-3-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF LABOR Office of Workers' Compensation Programs 20 CFR Part 725 RIN 1240-AA11 Black Lung Benefits Act: Medical Benefit Payments AGENCY:

    Office of Workers' Compensation Programs, Labor.

    ACTION:

    Notice of proposed rulemaking; request for comments.

    SUMMARY:

    The Department is proposing revisions to regulations under the Black Lung Benefits Act (BLBA or Act) governing the payment of medical benefits. The Department is basing these rules on payment formulas that the Centers for Medicare & Medicaid Services (CMS) uses to determine payments under the Medicare program. The Department also intends to make the rules similar to those utilized in the other programs that the Office of Workers' Compensation Programs (OWCP) administers. These rules will determine the amounts payable for covered medical services and treatments provided to entitled miners, when those services or treatments are paid by the Black Lung Disability Trust Fund. In addition, the proposed rule would eliminate two obsolete provisions.

    DATES:

    The Department invites written comments on the proposed regulations from interested parties. Written comments must be received by March 6, 2017.

    ADDRESSES:

    You may submit written comments, identified by RIN number 1240-AA11, by any of the following methods. To facilitate receipt and processing of comments, OWCP encourages interested parties to submit their comments electronically.

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

    Facsimile: (202) 693-1395 (this is not a toll-free number). Only comments of ten or fewer pages, including a FAX cover sheet and attachments, if any, will be accepted by FAX.

    Regular Mail or Hand Delivery/Courier: Submit comments on paper to the Division of Coal Mine Workers' Compensation, Office of Workers' Compensation Programs, U.S. Department of Labor, Suite C-3520, 200 Constitution Avenue NW., Washington, DC 20210. The Department's receipt of U.S. mail may be significantly delayed due to security procedures. You must take this into consideration when preparing to meet the deadline for submitting comments.

    Instructions: All submissions received must include the agency name and the Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Michael Chance, Director, Division of Coal Mine Workers' Compensation, Office of Workers' Compensation Programs, U.S. Department of Labor, Suite C-3520, 200 Constitution Avenue NW., Washington, DC 20210. Telephone: 1-800-347-2502. This is a toll-free number. TTY/TDD callers may dial toll-free 1-877-889-5627 for further information.

    SUPPLEMENTARY INFORMATION:

    I. Background of This Rulemaking

    The BLBA, 30 U.S.C. 901-944, provides for the payment of benefits to coal miners and certain of their dependent survivors on account of total disability or death due to coal workers' pneumoconiosis. 30 U.S.C. 901(a); Usery v. Turner Elkhorn Min. Co., 428 U.S. 1, 5 (1976). Benefits are paid by either an individual coal mine operator that employed the coal miner (or its insurance carrier), or the Black Lung Disability Trust Fund. Director, OWCP v. Bivens, 757 F.2d 781, 783 (6th Cir. 1985).

    A miner who is entitled to disability benefits under the BLBA is also entitled to medical benefits. 33 U.S.C. 907, as incorporated by 30 U.S.C. 932(a); 20 CFR 725.701. The current rules governing the payment of medical benefits are contained in 20 CFR part 725, subpart J. Under these rules, a miner is entitled to “such medical, surgical, and other attendance and treatment, nursing and hospital services, medicine and apparatus, and any other medical service or supply, for such periods as the nature of miner's pneumoconiosis and disability requires.” 20 CFR 725.701(b).

    In most cases, a responsible operator is liable for the payment of medical benefits. But OWCP pays medical benefits from the Trust Fund in three instances: (1) If no responsible operator can be identified as the party liable for a claim, and the Trust Fund is liable as a result (id.); (2) when the identified responsible operator declines to pay benefits pending final adjudication of a claim (see 20 CFR 725.522, 725.708(b)); and (3) when the responsible operator fails to meet its payment obligations on a final award (see 20 CFR 725.502). For interim payments made pending final adjudication, OWCP seeks reimbursement from the operator after the claim is finally awarded. 20 CFR 725.602(a). Likewise, OWCP seeks reimbursement for payments made when an operator fails to meet its obligations on a final award. 20 CFR 725.601.

    Current § 725.706(c) provides that payment for medical benefits “shall be made at no more than the rate prevailing in the community in which the providing physician, medical facility or supplier is located.” 20 CFR 725.706(c). The current regulations, however, do not address how the prevailing community rate for a particular medical service or treatment is determined. For medical benefits paid by the Trust Fund, the Division of Coal Mine Workers' Compensation (DCMWC) currently bases payment for professional medical services, medical equipment, and inpatient and outpatient medical services and treatments, on internally-derived payment formulas. DCMWC currently pays for prescription medications utilizing a payment formula similar to that employed by the three other workers' compensation programs that OWCP administers.

    The Department now proposes to revise Subpart J. Specifically, the Department proposes to base Trust Fund payments for all medical services and treatments rendered on or after the effective date of this rule on payment formulas derived from those used by CMS under the Medicare program. The proposed payment formulas are similar to those used by the other OWCP programs, but are tailored to the specific geography, medical conditions, and needs of black lung program stakeholders. See proposed § 725.707. The proposal also gives OWCP the flexibility to depart from the payment formulas if they cannot be used to determine the prevailing community rate, and requires OWCP to review (and, if necessary, update, revise or replace) the payment formulas at least annually. See proposed § 725.707(e). This flexibility will allow OWCP to timely address any issues that may result from the implementation and application of the payment formulas, including any impact on miners' access to health care.

    The Department believes that the proposed payment formulas more accurately reflect prevailing community rates for authorized treatments and services than do the internally-derived formulas that OWCP currently uses for the black lung program. Moreover, because the Department believes that responsible operators and their insurance carriers utilize payment formulas or fee schedules that are substantially similar to the proposed payment formulas, the Trust Fund is more likely to be fully reimbursed for the payments it makes on an interim basis. Thus, this change will serve to control the health care costs associated with the BLBA, conserve the Trust Fund's limited resources, and provide greater clarity and certainty with respect both to fees paid to providers and reimbursements sought from operators and carriers. Likewise, it will ensure more consistent payment policies across all of the compensation programs administered by OWCP. The Department invites comments on the proposed rule from all interested parties. The Department is particularly interested in comments addressing the impact of the proposed payment formulas on health care services providers and any resulting impact on miners' access to health care.

    II. Summary of the Proposed Rule A. General Provisions

    The Department is proposing several general revisions to advance the goals set forth in Executive Order 13563 (2012). That Order states that regulations must be “accessible, consistent, written in plain language, and easy to understand.” 76 FR 3821. See also E.O. 12866, 58 FR 51735 (Sept. 30, 1993) (agencies must draft “regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty”). Accordingly, the Department proposes numerous technical and stylistic changes to Subpart J to improve clarity, consistency, and readability.

    The Department proposes to remove the imprecise term “shall” throughout the sections that it is amending or republishing, and to substitute “must,” “must not,” “will,” or other situation-appropriate terms. No alteration in meaning either results from or is intended by these changes, which are made in the following proposed regulations: § 725.701, § 725.703, § 725.704, § 725.705, § 725.706, § 725.718, and § 725.720.

    Consistent with the goal of making this regulation easier to understand, the Department proposes several additional technical changes. First, the Department proposes to replace references to “the Office” with “OWCP” because that acronym is more commonly used by stakeholders. As explained in current § 725.101(a)(21), “Office” and “OWCP” both mean “the Office of Workers' Compensation Programs, United States Department of Labor.” Thus, no alteration in meaning either results from or is intended by this change, which is made in the following regulations: § 725.703, § 725.704, § 725.705, and § 725.706.

    Second, where appropriate, the Department proposes to replace references to a coal-mine “operator” with “operator or carrier” because § 725.360(a)(4) makes any coal-mine operator's insurance carrier a party to the operator's claims. Because either an operator or a carrier may defend or pay claims for medical benefits, no alteration in meaning either results from or is intended by this change, which is made in the following regulations: § 725.704, § 725.706, and § 725.718. Additionally, the Department proposes to replace a reference to “insurer” with the word “carrier” because, under § 725.101(a)(18), both mean an entity “authorized under the laws of a State to insure employers' liability under workers' compensation laws.” Thus, no alteration in meaning either results from or is intended by this change, which appears in § 725.704.

    Third, where appropriate, for purposes of consistency with the rest of the Subpart, the Department proposes to substitute the broader term “provider” for the term “physician” and/or “facility” as well as to substitute the term “medical equipment” for the term “apparatus.” No alteration in meaning either results from or is intended by these changes, which are made in the following regulations: § 725.701, § 725.704, § 725.705, and § 725.706.

    Finally, to make the regulations clearer and more user-friendly, the Department proposes new titles, phrased in question form, for all of the regulations appearing in Subpart J.

    Executive Order 13563 also instructs agencies to review “rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them.” The Department proposes to cease publication of two obsolete rules (20 CFR 725.308(b) and 725.702). Because of the deletion of current § 725.702 and the addition of new rules adopting the payment formulas noted above, other current regulations (20 CFR 725.703-725.708 and 725.710-725.711) will be renumbered.

    All technical and stylistic changes designated here are not included in the section-by-section explanation. All proposed substantive revisions to existing rules and all proposed new rules are discussed below.

    B. Section-by-Section Explanation § 725.308 Time Limits for Filing Claims

    The Department proposes to discontinue publication of § 725.308(b) because it is obsolete. Current § 725.308(b) establishes a time limit applicable to miners' claims for medical benefits filed under Section 11 of the Black Lung Benefits Reform Act, 30 U.S.C. 924a, repealed, Public Law 107-275, 2(c)(2), 116 Stat. 1926 (2002). For the reasons explained in the discussion under 20 CFR subpart J below, continued publication of regulations related to Section 11 is unnecessary. To implement this change, the Department also proposes conforming technical amendments to current § 725.308(c), including renumbering current paragraph (c) as paragraph (b).

    Subpart J—Medical Benefits and Vocational Rehabilitation

    The Department proposes multiple revisions and additions to the provisions governing medical benefits in Subpart J. Because the proposed changes are substantial, the Department has republished Subpart J in its entirety below.

    In the existing regulations and in compliance with Executive Order 13563, the Department proposes to discontinue publication of § 725.702 because it is obsolete. 20 CFR 725.702. Section 725.702 implements Section 11 of the Black Lung Benefits Reform Act passed in 1977. 30 U.S.C. 924a, repealed, Public Law 107-275, 2(c)(2), 116 Stat. 1926 (2002). Section 11 required the Secretary of Health, Education and Welfare to notify miners receiving benefits under Part B of the Act that they could file a claim for medical benefits under Part C of the Act. Current §§ 725.308 and 725.702 required miners to file these claims on or before December 31, 1980, unless the period was extended for good cause shown. Few, if any, Section 11 claims for medical benefits only remain in litigation. In fact, Congress repealed Section 11 as obsolete in 2002. Thus, continued publication of this regulation is unnecessary. If any Section 11 claim results in litigation after the effective date of these regulations, the claim will continue to be governed by the criteria in the 2015 edition of the Code of Federal Regulations. As a consequence of the deletion of current § 725.702, and the addition of new provisions regarding payments for medical services and treatments, other current regulations (20 CFR 725.703-725.708, 725.710-725.711) will be renumbered.

    The Department also proposes a new set of regulations that adopt payment formulas and related procedures for determining the prevailing community rate for medical benefits paid by the Trust Fund. The subheadings and other regulatory references in this discussion generally refer to the location of the proposed rule if promulgated as a final rule.

    Specifically, the Department proposes to replace current § 725.706(c) with proposed §§ 725.707-725.717, which adopt payment formulas and procedures to determine the rates at which various medical services and treatments will be paid by the Trust Fund, as well as the rates at which OWCP will seek reimbursement from operators for medical benefits paid on an interim basis. Similar payment formulas are used by the other three workers' compensation programs that OWCP administers. Such payment formulas were first developed and adopted for use in claims under the Federal Employees' Compensation Act, 5 U.S.C. 8101 et seq., in 1986. See 51 FR 8276-82 (Mar. 10, 1986). Subsequently, similar formulas were adopted for claims under the Longshore Act in 1995 and for claims under the Energy Employees Occupational Illness Compensation Program Act, 42 U.S.C. 7384 et seq., in 2001. See 60 FR 51347-48 (Oct. 2, 1995); 66 FR 28957-59, 79-80 (May 25, 2001).

    The payment formulas the Department proposes to adopt for claims under the BLBA (and those it already utilizes under the other OWCP programs) are derived from the payment formulas that CMS uses to determine payments for medical services and treatments under the Medicare program. The proposed formulas encompass locality-based payment rates for physician services and medical equipment (see proposed § 725.708), as well as for outpatient and inpatient medical services (see proposed §§ 725.710 and 725.711, respectively). The Department also proposes, consistent with existing practice and similar to the other OWCP programs, to adopt a single national formula for the payment of prescription-drug costs. See proposed § 725.709.

    Finally, the Department proposes to adopt specific procedures for providers to enroll with OWCP for authorization to submit medical bills for payment, and for miners to request reimbursement for covered medical expenses and transportation costs. See proposed §§ 725.714-725.717. Most of these provisions simply implement current procedures and, to the extent any differences are proposed, the procedures are consistent with current industry standards. Specific provisions proposed for addition to the regulations in Subpart J are discussed in detail below.

    § 725.701 What medical benefits are available?

    Proposed § 725.701 is a revision of current § 725.701. The Department proposes to combine current paragraphs (e) and (f), and add subdivisions to paragraph (e) for greater clarity and ease of comprehension. Likewise, the Department proposes to delete the confusing reference to “other employer” in paragraph (b). Proposed paragraph (b) also enumerates more clearly the medical services and treatments to which a miner is entitled. The terms “service” and “treatment” are used interchangeably throughout Subpart J to indicate those benefits for which the responsible operator or Trust Fund may be liable. The Department proposes to revise paragraphs (d) and (e)(3) for greater clarity and readability. For the same reason, in paragraph (e), the Department proposes replacing the word “supply” with “treatment.” Finally, the Department also proposes to replace the reference to “district director” in paragraph (d) with “OWCP,” as communication may be made with either the OWCP national or district offices.

    § 725.702 Who is considered a physician?

    Proposed § 725.702 is substantively identical to current § 725.703. For consistency, however, osteopathic physicians (DO) are now identified in the same manner as other doctors of medicine (MD). The reference to “district director” in the final sentence is changed to “OWCP,” as the supervision of care may be provided by either the OWCP national office or district offices, depending upon factors such as the geographic location of the miner or provider, the particular services or treatments required by the miner, and the relative resource levels in the OWCP national and district offices.

    § 725.703 How is treatment authorized?

    Proposed § 725.703 is a revision of current § 725.704 and contains only technical changes described in Section II-A above.

    § 725.704 How are arrangements for medical care made?

    Proposed § 725.704 is a revision of current § 725.705. References to “such operator” have been changed to “the operator,” “decisionmaking” has been changed to “decision-making,” and “such designation” has been changed to “this designation.” The Department does not intend any substantive alteration to the current provision.

    § 725.705 Is prior authorization for medical services required?

    Proposed § 725.705 is a revision of paragraphs (a) and (b) of current § 725.706. The Department proposes to replace the reference to “Chief, Branch of Medical Analysis and Services, DCMWC” with “Chief, Medical Audit and Operations Section, DCMWC” to reflect the correct title of the employee authorized to approve requests for hospitalization or surgery by telephone. Paragraph (c) of current § 725.706 is deleted and replaced by proposed §§ 725.707-725.711 (see below).

    § 725.706 What reports must a medical provider give to OWCP?

    Proposed § 725.706 is a revision of current § 725.707. The Department proposes to replace the reference to “district director” in paragraph (b) with “OWCP,” as payment determinations may be made by either the OWCP national or district offices.

    § 725.707 At what rate will fees for medical services and treatments be paid?

    Proposed § 725.707 is a new provision that sets out general rules governing the payment of compensable medical bills by the Trust Fund. Paragraph (a) provides that the Trust Fund will pay no more than the prevailing community rate for medical services, treatments, drugs or equipment. Paragraph (b) provides that the prevailing community rate for various types of treatments and services will be determined under the provisions of §§ 725.708-725.711. Paragraph (c), however, precludes the application of §§ 725.708-725.711 to charges for services or treatments furnished by the U.S. Public Health Services or the Departments of the Army, Navy, Air Force or Veterans Affairs. Payment for services or treatments furnished by these providers is made under the provisions of proposed § 725.707(d). Because the Department recognizes that there may be circumstances where the provisions of §§ 725.708-725.711 cannot be used to determine the prevailing community rate, paragraph (d) permits OWCP to determine the prevailing community rate based on other payment formulas or evidence. Paragraph (e) requires OWCP to review the payment formulas in §§ 725.708-725.711 annually, and permits OWCP to adjust, revise or replace any formula (or its components) when needed. This provision allows OWCP to change the payment formulas in §§ 725.707-725.711 (or replace them entirely) if, at any given time, OWCP finds that those formulas cannot be used to determine prevailing community rates, are adversely impacting miners' access to care, or are otherwise not appropriate. Finally, paragraph (f) makes §§ 725.707-725.711 applicable to all services and treatments provided on or after the rule's effective date.

    § 725.708 How are payments for professional medical services and medical equipment determined?

    Proposed § 725.708 is a new provision to govern payments for compensable professional medical services and medical equipment. Paragraph (a) provides that OWCP will pay for professional medical services based on a fee schedule derived from the CMS Medicare program fee schedule. OWCP's fee schedule will be used to determine the prevailing rate paid for a given medical service in the community in which the provider is located. To calculate the maximum allowable payment, each professional service is identified by a Healthcare Common Procedure Coding System/Current Procedural Terminology (HCPCS/CPT) code,1 which is assigned a relative value for work, practice expense, and malpractice expense. OWCP proposes to utilize relative values established by CMS for the Medicare program. Where CMS does not have a relative value for a service, OWCP may develop and assign one. The relative value is multiplied by a relevant geographic adjustment factor as defined by CMS. The resulting value is then multiplied by a monetary conversion factor (which is defined by OWCP) to determine the prevailing community rate for each coded service. Some professional services are not covered by the fee schedule described in paragraph (a). Thus, paragraph (b) provides that payment for services not covered by the paragraph (a) fee schedule is derived from other fee schedules or pricing formulas utilized by OWCP for professional services. Finally, paragraph (c) provides that payment for medical equipment identified by a HCPCS/CPT code is based on fee schedules or pricing formulas utilized by OWCP for medical equipment.

    1 CPT codes are established and updated by the American Medical Association. HCPCS codes were developed by CMS to complement the CPT. The use of these codes is standard practice in the coding and processing of medical bills.

    § 725.709 How are payments for prescription drugs determined?

    Proposed § 725.709 is a new provision to govern payment for compensable prescription drugs. It merely codifies existing policy and does not change current payment practice. Paragraph (a) provides for payment for prescribed medication at a percentage of the national average wholesale price (or another baseline price designated by OWCP). In addition, the provider of the drug will receive a flat-rate dispensing fee, to be set by OWCP. Paragraph (b) provides that where the pricing formula in paragraph (a) cannot be used, OWCP may make payment based on other pricing formulas. Lastly, paragraph (c) provides that OWCP may require the use of specific providers for certain medications and may require the use of generic versions of medications where available.

    § 725.710 How are payments for outpatient medical services determined?

    Proposed § 725.710 is a new provision to govern payment for compensable outpatient medical services. Paragraph (a) provides that, where appropriate, OWCP will utilize the Outpatient Prospective Payment System (OPPS) devised by CMS for the Medicare program. Under OPPS, outpatient services are generally assigned to Ambulatory Payment Classifications based on their clinical and resource cost similarities. Payment rates are based on those classifications, adjusted by other factors, including the hospital wage index for the locality where the service is provided. The OPPS was first implemented by CMS in 2000, and the industry is familiar with this payment system for hospital outpatient services. Where outpatient services cannot be assigned or priced appropriately under the OPPS system, paragraph (b) provides that payment for the services will be based on fee schedules and other pricing formulas utilized by OWCP. Finally, paragraph (c) specifies that services provided at an ambulatory surgery center are not paid for under OPPS. Rather, such services are paid under § 725.707(d).

    § 725.711 How are payments for inpatient medical services determined?

    Proposed § 725.711 is a new provision to govern payment for compensable hospital inpatient services. Under paragraph (a), OWCP will pay for inpatient services utilizing a Diagnosis-Related Group (DRG) system derived from the Medicare Severity DRG (MS-DRG) methodology used by Medicare in the Inpatient Prospective Payment System (IPPS). DRG-based pricing is the industry standard for determining the payment rates for inpatient hospital treatment and services. In addition to Medicare, it is used by the Department of Veterans' Affairs, and TRICARE (formerly known as the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)), as well as by numerous state workers' compensation programs and private insurance plans. Paragraph (a) specifies that hospital discharge diagnoses are classified into groups (DRGs) based on the patient's diagnosis and the procedures furnished. Each DRG is assigned a base payment rate, which is then adjusted for both geographic and provider-specific factors to determine the payment rate for each admission. Under paragraph (b), where a compensable inpatient service cannot be paid under the DRG system, payment for the service will be based on fee schedules or other pricing formulas utilized by OWCP.

    § 725.712 When and how are fees reduced?

    Proposed § 725.712(a) is a new provision addressing reductions in requested fees. The Department proposes that, where a provider submits a properly coded bill, OWCP will pay no more than the maximum amount allowable under §§ 725.707-725.711. Where a bill is improperly coded, OWCP will either return it to the provider for correction, or deny it outright. Under proposed paragraph (b), if a bill exceeds the maximum amount allowed under the regulations, OWCP will pay only the allowed amount and advise the provider of any reduction in the requested fee. Finally, consistent with current practice, proposed paragraph (c) provides that disputes over fee payments may be referred to the Department's Office of Administrative Law Judges. See 20 CFR 725.708, to be re-codified at 20 CFR 725.718.

    § 725.713 If a fee is reduced, may a provider bill the claimant for the balance?

    Proposed § 725.713 is a new provision addressing reductions in requested fees. It codifies current OWCP policy. The proposed provision provides that if a fee has been reduced in accordance with this subpart, providers may not recover any additional amount from the miner. This provision thus would prohibit the practice of “balance billing,” which occurs when providers receive only a portion of their submitted charges from third-party payers and seek to recover the “balance” from the patient.

    § 725.714 How do providers enroll with OWCP for authorizations and billing?

    Proposed § 725.714 is a new provision, but it simply codifies OWCP's existing practice of requiring all non-pharmacy providers seeking payments from the Trust Fund to enroll in the OWCP bill payment processing system. Paragraph (a) requires non-pharmacy providers to enroll in the system and paragraph (b) specifies the manner of enrollment. Paragraph (c) requires non-pharmacy providers to maintain proof of their eligibility for enrollment in the system. Paragraph (d) requires non-pharmacy providers to notify OWCP of any change in the provider's enrollment information. Paragraph (e) explains that pharmacy providers are required to obtain a National Council for Prescription Drug Programs number, and that upon obtaining such number, they will be automatically enrolled in OWCP's pharmacy billing system. Finally, paragraph (f) requires providers to submit bills via a specified bill-processing portal or to the requisite OWCP mailing address and to include any identifying numbers OWCP may require.

    § 725.715 How do providers submit medical bills?

    Proposed § 725.715 is a new provision that prescribes the forms and documents providers must submit to be paid for rendering covered medical services or treatments to miners. Paragraph (a) lists the forms that a provider must submit for each type of service or treatment. Paragraph (b) sets out the coding or other information that must be included on the forms for each type of service or treatment. Finally, under paragraph (c), a provider, by submitting a bill or accepting payment, signifies that the service or treatment was necessary and appropriate and was billed in accordance with standard industry practices. In addition, paragraph (c) requires providers to comply with the regulations in Subpart J with respect to the provision of, and billing for, services and treatments.

    § 725.716 How should a miner prepare and submit requests for reimbursement for covered medical expenses and transportation costs?

    In some instances, a miner will pay for covered medical services out of his or her own pocket. Proposed § 725.716 is a new provision that reflects existing procedures allowing the miner to be reimbursed for these payments. Proposed paragraph (a) requires the miner to submit the appropriate form along with an itemized bill and proof of payment for the services. Proposed paragraph (b) allows OWCP to waive these requirements if the delay between the time of the service and approval of the miner's claim makes it difficult to obtain this information. Proposed paragraph (c) provides for reimbursement at the rate allowed under proposed §§ 725.707-725.711. If that reimbursement is less than the full amount the miner paid, proposed paragraph (d) places responsibility on the miner to seek a refund or a credit from the provider. But if those efforts fail, proposed paragraph (e) protects the miner by allowing OWCP to make a reasonable reimbursement based on the facts and circumstances in the particular case. Finally, proposed paragraph (f) specifies the form and documentation that a miner must submit to be reimbursed for travel costs and other incidental expenses related to obtaining covered medical services.

    § 725.717 What are the time limitations for requesting payment or reimbursement for medical services and treatments?

    Proposed § 725.717 would impose a new time limitation on requests for payment or reimbursement for medical services and treatments. The proposed provision would require providers to request payment no later than one year after the end of the calendar year during which either the service or treatment was rendered or in which the miner received a final award of benefits, whichever is later. Miners seeking reimbursement for covered medical services are also governed by this provision. Time limitations on requests for payment will encourage providers and miners to act promptly and will help prevent delays in the submission of bills and reimbursement requests to the Trust Fund. OWCP may waive the time limitation if the provider or miner demonstrates good cause for the late submission of a payment or reimbursement request.

    § 725.718 How are disputes concerning medical benefits resolved?

    Proposed § 725.718 is a revision of current § 725.708. The Department proposes to revise paragraph (a) to clarify that the dispute-resolution procedures apply to disputes over the payment or cost of a particular medical service or treatment as well as to the miner's entitlement to such service or treatment. The current regulation requires that hearing requests on whether a miner is entitled to a service or treatment must be given priority over other hearing requests. The proposed provision does not change this requirement, but adds language to paragraph (b) clarifying that disputes over only the payment or cost of a service or treatment are not prioritized over other hearing requests. In paragraph (a) and (b), the Department also proposes to change the references to “the district director” to “OWCP,” as informal resolution efforts and referrals for hearing may be made by either the OWCP national or district offices. In addition, the Department proposes to replace the reference to “the Director” in the last sentence of paragraph (b) with “OWCP,” and to edit the introductory clause in the first sentence of paragraph (b) for clarity and consistency. Finally, the Department proposes to replace the phrase “over medical benefits” in paragraph (d) with “under this subpart,” for clarity and to avoid redundancy.

    § 725.719 What is the objective of vocational rehabilitation?

    Proposed § 725.719 is a revision of current § 725.710. For conciseness and clarity, the Department proposes to replace the phrase “for work in or around a coal mine and who is unable to utilize those skills which were employed in the miner's coal mine employment” in the first sentence with “by pneumoconiosis.” See 20 CFR 718.204(b)(1)(ii) (defining total disability as inability to “engag[e] in gainful employment in the immediate area of his or her residence requiring the skills or abilities comparable to those of any employment in a mine or mines in which he or she previously engaged with some regularity over a substantial period of time”). No change in the meaning of the current provision is intended.

    § 725.720 How does a miner request vocational rehabilitation assistance?

    Proposed § 725.720 is a revision of current § 725.711 and contains only technical changes described in Section II-A above.

    III. Statutory Authority

    Section 426(a) of the BLBA, 30 U.S.C. 936(a), authorizes the Secretary of Labor to prescribe rules and regulations necessary for the administration and enforcement of the Act.

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

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

    Although the proposed medical benefit payment rules in Subpart J contain collections of information within the meaning of the PRA (see proposed §§ 725.715-725.716), these collections are not new. They are currently approved for use in the black lung program and other OWCP-administered compensation programs by OMB under Control Numbers 1240-0007 (OWCP-915 Claim for Medical Reimbursement); 1240-0019 (OWCP-04 Uniform Billing Form); 1240-0021 (OWCP-1168 Provider Enrollment Form); 1240-0037 (OWCP-957 Medical Travel Refund Request); 1240-0044 (OWCP-1500 Health Insurance Claim Form). The requirements for completion of the forms and the information collected on the forms will not change if this rule is adopted in final. Since no changes are being made to the collections, the overall burdens imposed by the information collections will not change.

    While the Department has determined that the rule does not affect the general terms of the information collections or their associated burdens, consistent with requirements codified at 44 U.S.C. 3506(a)(1)(B), (c)(2)(B) and 3507(a)(1)(D); 5 CFR 1320.11, the Department has submitted a series of Information Collection Requests to OMB for approval under the Paperwork Reduction Act of 1995 (PRA) in order to update the information collection approvals to reflect this rulemaking and provide interested parties a specific opportunity to comment under the PRA. Allowing an opportunity for comment helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.

    In addition to having an opportunity to file comments with the Department, the PRA provides that an interested party may file comments on the information collection requirements in a proposed rule directly with OMB, at the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OWCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email: [email protected] Commenters are encouraged, but not required, to send a courtesy copy of any comments to the Department by one of the methods set forth above. OMB will consider all written comments that the agency receives within 30 days of publication of this Notice of Proposed Rulemaking (NPRM) in the Federal Register. In order to help ensure appropriate consideration, comments should mention at least one of the OMB control numbers cited in this preamble.

    OMB and the Department are particularly interested in comments that:

    • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

    • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

    • Enhance the quality, utility, and clarity of the information to be collected; and

    • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

    The information collections in this rule may be summarized as follows. The number of responses and burden estimates listed are not specific to the black lung program; instead, the estimates are cumulative for all OWCP-administered compensation programs that collect this information.

    1. Title of Collection: Claim for Medical Reimbursement Form.

    OMB Control Number: 1240-0007.

    Total Estimated Number of Responses: 31,824.

    Total Estimated Annual Time Burden: 5,283 hours.

    Total Estimated Annual Other Costs Burden: $54,737.

    2. Title of Collection: Uniform Billing Form (OWCP-04).

    OMB Control Number: 1240-0019.

    Total Estimated Number of Responses: 190,970.

    Total Estimated Annual Time Burden: 21,811 hours.

    Total Estimated Annual Other Costs Burden: $0.

    3. Title of Collection: Provider Enrollment Form.

    OMB Control Number: 1240-0021.

    Total Estimated Number of Responses: 37,257.

    Total Estimated Annual Time Burden: 4,955 hours.

    Total Estimated Annual Other Costs Burden: $18,629.

    4. Title of Collection: Medical Travel Refund Request.

    OMB Control Number: 1240-0NEW.

    Total Estimated Number of Responses: 342,462.

    Total Estimated Annual Time Burden: 56,849 hours.

    Total Estimated Annual Other Costs Burden: $171,231.

    5. Title of Collection: Health Insurance Claim Form.

    OMB Control Number: 1240-0044.

    Total Estimated Number of Responses: 2,646,438.

    Total Estimated Annual Time Burden: 254,875 hours.

    Total Estimated Annual Other Costs Burden: $0.

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

    Executive Orders 12866 and 13563 direct agencies to assess all the costs and benefits of the available alternatives to regulation 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, harmonizing rules, and promoting flexibility. It also instructs agencies to review “rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them.”

    The Department has considered the proposed rule with these principles in mind and has determined that the affected community will benefit from this regulation. The discussion below sets out the rule's anticipated economic impact and discusses non-economic factors favoring adoption of the proposal. The Office of Information and Regulatory Affairs of OMB has determined that the Department's rule represents a “significant regulatory action” under Section 3(f)(4) of Executive Order 12866 and has reviewed the rule.

    A. Economic Considerations

    The proposed rule could have an economic impact on parties to black lung claims and others, including health care services providers that furnish covered medical services to entitled miners. The rule is nevertheless necessary to define the prevailing community rate used to pay for particular medical services and treatments for the affected community. As explained in Section I of this preamble, miners found entitled to monthly disability benefits under the BLBA are also entitled to medical benefits, i.e., those medical services and treatments as the miner's pneumoconiosis and resulting disability require. The Trust Fund pays for medical benefits both when the Trust Fund is primarily liable for a claim and on behalf of non-paying responsible operators. When the Trust Fund pays medical benefits on behalf of a non-paying operator, it later seeks reimbursement from the operator responsible for the miner's benefits.

    As detailed in Section II.B. of this preamble, the proposed regulations would change the formulas OWCP currently utilizes to calculate the amount paid for non-hospital health care services, outpatient hospital services, and inpatient hospital services.2 The Trust Fund currently pays for non-hospital and hospital services based on internally-derived payment formulas. The payment formulas in the proposed rule, however, are based on those utilized by CMS for the payment of services under the Medicare program, and are similar to the payment formulas utilized by OWCP in the other programs it administers. Thus, the proposed rule would more closely conform Trust Fund medical payments to industry-wide standards for medical bill payment and more accurately reflect prevailing community rates for authorized treatments and services.

    2 Proposed § 725.709 is a codification of the current payment formula for prescription drugs. Since adoption of this proposed rule would not change current practices or policies, it would have no economic impact on providers. As a result, proposed § 725.709 is not included in this analysis.

    This analysis provides the Department's estimate of the economic impact of the proposed rule, both on the economy as a whole and at the firm level. The Department invites comments on this analysis from all interested parties. The Department is particularly interested in comments addressing the Department's evaluation of the impact of the proposed rule on health care services providers and on miners' access to providers and services.

    1. Data Considered

    To determine the proposed rule's general economic impact, the Department calculated the amount that the Trust Fund actually paid to health care services providers for medical services performed in Fiscal Year (FY) 2014 (current practice), and the amount the Trust Fund would have paid for the same services using the proposed payment formulas. The Department then compared the amounts to measure potential impact. Overall, the proposed rule would have saved the Trust Fund $3,154,267 for services rendered in FY 2014.3 Because payments are calculated differently depending upon the type of health care services provider being reimbursed, the analysis below consists of three sections: (1) Non-hospital health care services (primarily physician services, but also services of other health care professionals including providers of durable medical equipment and ambulance suppliers); (2) hospital outpatient services; and (3) hospital inpatient services. The providers included in the dataset are those that were actually paid for covered services in FY 2014, including 1,210 non-hospital providers, 184 hospitals providing outpatient services, and 156 hospitals providing inpatient services.

    3 The Trust Fund paid a total of $17,480,555 in FY 2014 for non-hospital health care services, outpatient hospital services, and inpatient hospital services. Of that total, it paid $2,672,782 for non-hospital services, $2,383,641 for outpatient hospital services, and $12,424,132 for inpatient hospital services. To provide context, in FY 2014, the Trust Fund also paid $152,397,971 in disability and survivor benefits under Part C of the BLBA.

    a. Non-Hospital Health Care Services

    Under proposed § 725.708, the Department would pay for non-hospital health care services with fee schedules derived from those utilized by CMS for payment under the Medicare program. See 42 CFR part 414. The Department estimates that under the proposed payment formulas, non-hospital health care services providers would receive, in aggregate, slightly less in payments from the Trust Fund than under current practice. The Trust Fund paid $2,672,782 for the non-hospital health care services provided in FY 2014. See Table 1. The Department estimates that under proposed § 725.708, the Trust Fund would have paid $2,664,290 for non-hospital health care services, a total decrease of only $8,492 (0.3%), far less than a 1% reduction. See Table 1.

    The Department estimates that non-hospital health care services providers in twelve states would experience a net aggregate reduction in payments from the Trust Fund, totaling $89,139. The largest decreases in dollar amount would occur in Kentucky ($39,338, a 4.5% decrease), Missouri ($17,056, a 40.9% decrease), and Virginia ($12,870, a 2.3% decrease). See Table 1. Nearly offsetting these reductions, however, providers in sixteen states would experience a net aggregate increase in payments from the Trust Fund, totaling $80,647. The largest increases by dollar amount would occur in Pennsylvania ($53,507, a 12.3% increase), Tennessee ($10,095, a 5.4% increase) and Illinois ($7,444, a 23.3% increase). See Table 1.

    The aggregate payment decrease, $8,492, would represent a reduction in transfer payments from the Trust Fund to non-hospital health care services providers. This small aggregate reduction, however, represents the combination of reductions and increases spread over 1,210 non-hospital health care services providers.4 The Department therefore believes that proposed § 725.708 will not significantly affect non-hospital providers, or create issues for miners seeking access to these health care services providers.

    4 In Sections V and VI of this preamble, the Department uses the terms “provider,” “entity,” and “firm” interchangeably. The OWCP data used as part of the analyses in Sections V and VI is based on provider-level data as identified by provider number in its billing system. The U.S. Census Bureau and the U.S. Small Business Administration, by contrast, publish data (used to assess the impact of the proposed rule in Sections V and VI) on a firm-level basis. A firm may consist of multiple establishments or providers, and the Department is unable to identify firms in its data. The Department believes, however, that there is not a meaningful difference between “providers” and “firms” in this context because the great majority of non-hospital and hospital small firms that provide medical services to miners consist of single providers or establishments. As a result, the Department believes that the use of firm-level data instead of provider-level data does not materially impact its analysis and, if it has any effect, results in an overstatement of the proposed rule's economic impact.

    EP04JA17.010 b. Hospital Outpatient Services

    Under proposed § 725.710, the Department would pay for outpatient services with an outpatient prospective payment system (OPPS) derived from the OPPS utilized by CMS for payment under the Medicare program. The Department estimates that under proposed § 725.710, there would be a reduction in payments from the Trust Fund to hospitals for outpatient services. Under current practice, the Trust Fund paid $2,383,641 for outpatient services rendered in FY 2014. The Department estimates that, under proposed § 725.710, the Trust Fund would have paid $664,098, a decrease of $1,719,543 (or 72%). See Table 2. The Department estimates that hospitals in twenty states would receive reduced payments. The largest decreases by dollar amount would occur in Kentucky ($902,425, a decrease of 74%), Virginia ($327,304, a decrease of 77%), West Virginia ($148,104, a decrease of 60%); and Pennsylvania ($85,169, a decrease of 71%). See Table 2. Colorado is the only state that would see an increase in payments.

    The total estimated reduction in hospital outpatient payments is sizeable, but necessary to bring payments for black lung outpatient hospital care in line with industry standards. Under current practice, hospitals were paid, in aggregate, 431% of their costs for outpatient services performed in FY 2014, with payments to individual hospitals made at rates as high as 1,559% of costs.5 This divergence explains the need for a new payment formula.

    5 Total costs for hospital outpatient services performed in FY 2014 and paid for by the black lung program are estimated at $552,549 by multiplying actual billed reimbursable charges by hospital and state outpatient cost-to-charge ratios maintained by CMS in their most recent publically available Impact File.

    While proposed § 725.710 would result in an aggregate decrease in the transfer payments from the Trust Fund to hospitals for outpatient services, hospitals would continue to be paid at rates they are currently accepting from other small third-party payers, including the other OWCP programs, and at rates above those paid by Medicare. In aggregate, hospitals would be paid approximately 120% of costs for outpatient services under the proposed rule.6 The Department therefore believes that proposed § 725.710 will not affect miners' access to care. Moreover, providers being paid significantly above costs under the current practice are likely to be most impacted by proposed § 725.710. The Department, however, invites comments on these determinations. In particular, the Department seeks comments on whether any projected impact of the proposal on miners' access to outpatient services would be short-term or long-term.

    6 Total costs for hospital outpatient services performed in FY 2014 that would be paid for by the black lung program under the proposed rule are estimated at $552,549 by multiplying projected reimbursable charges by hospital and state outpatient cost-to-charge ratios maintained by CMS in their most recent publically available Impact File.

    EP04JA17.011 c. Hospital Inpatient Services

    Under proposed § 725.711, the Department would pay for hospital inpatient services under an inpatient prospective payment system (IPPS) derived from the IPPS utilized by CMS for payment under the Medicare program. The Department estimates that under proposed § 725.711, there would be a small reduction in payments from the Trust Fund to hospitals for inpatient services. Under current practice, the Trust Fund paid $12,424,132 for inpatient services rendered in FY 2014. See Table 3. The Department estimates that, under proposed § 725.711, the Trust Fund would have paid $10,997,900, a decrease of $1,426,232 (or 11.5%). See Table 3.

    The Department estimates that hospitals in eight states would experience a net aggregate reduction of $2,301,580 in payments for inpatient services under proposed § 725.711. The largest decreases in dollar amount would occur in Kentucky ($1,291,411, a decrease of 26.2%), Virginia ($629,932, a decrease of 25.3%), and Florida ($205,315, a decrease of 71.9%). See Table 3. Hospitals in nine states would experience a net aggregate increase of $875,348 in payment for inpatient services under proposed § 725.711. The largest increases in dollar amount would occur in Alabama ($623,383, an increase of 152%), West Virginia ($86,455, an increase of 6.2%), and Pennsylvania ($79,664, an increase of 5.5%).

    Several factors contribute to these projected changes in payments among the states. First, analysis reveals that although the average payment per covered inpatient stay would decrease under proposed § 725.711, the Trust Fund would also pay for almost twice as many inpatient stays as under the current system. This change is because the DRG methodology focuses on the primary purpose for a hospital stay, which would result in more hospital stays being classified as black-lung-related. By way of illustration, of the 996 inpatient stays that hospitals billed the black lung program for in FY 2014, the Trust Fund paid the full allowed amount for 427 stays and a portion of the full amount for an additional 199 stays. In contrast, under proposed § 725.711, the Trust Fund would pay for 825 inpatient stays, all paid at the full allowed amount.7 Relatedly, because the cost of an individual inpatient stay may be quite high depending on the treatment provided, coverage of any given stay can greatly shift aggregate payments. For example, each lung transplant-related hospitalization occurring in FY 2014 for which the Trust Fund paid cost hundreds of thousands of dollars. Thus, covering or not covering even a single inpatient hospitalization can significantly increase or decrease aggregate Trust Fund payments. Finally, just as in the outpatient context, there is a wide disparity in pay-to-cost ratios among individual hospitals, with hospitals being paid up to 971% or more of costs under the current system.8 The states with the largest payment decreases under proposed § 725.711 include hospitals that are currently being paid at rates significantly above cost. While proposed § 725.711 would result in an aggregate decrease in the transfer payments from the Trust Fund to hospitals for inpatient services, hospitals would continue to be paid at rates they are accepting from other small third-party payers, including the other OWCP programs, and at rates above those paid by Medicare. These rates would result in hospitals being paid, in aggregate, approximately 155% of costs for inpatient services.9 The Department therefore believes that proposed § 725.711 will not significantly affect hospitals or affect miners' access to inpatient hospital care. The Department, however, invites comments on these determinations. In particular, the Department seeks comments on whether any projected impact of the proposal on miners' access to outpatient services would be short-term or long-term.

    7 The remaining 171 hospital stays billed to the Trust Fund were not covered stays (i.e., they are not for the treatment of totally disabling pneumoconiosis) and therefore would not be paid for by the Trust Fund. In most circumstances, hospitals stays billed to, but not paid by, the Trust Fund are paid for by Medicare or another insurer.

    8 Total costs for hospital inpatient services performed in FY 2014 and paid for by the black lung program are estimated by multiplying actual billed reimbursable charges by hospital and state inpatient cost-to-charge ratios maintained by CMS in their most recent publically available Impact File.

    9 Total costs for hospital inpatient services performed in FY 2014 that would be paid for by the black lung program under the proposed rule are estimated at $7,095,760 by multiplying projected reimbursable charges by hospital and state inpatient cost-to-charge ratios maintained by CMS in their most recent publically available Impact File.

    EP04JA17.012 2. Economic Impact Summary

    The Department believes that the proposed rule will not have a significant impact on the economy as a whole, and will have only a de minimis impact on firms that provide black lung-related health care to entitled miners. The Department has used a $100 million dollar annual threshold for determining the proposed rule's significance. See, e.g., E.O. 12866 (defining regulation that has annual effect on the economy of $100 million or more as “significant”). As shown in Section V.A.1. of this preamble, the Department estimates the proposed rule would result in an aggregate annual reduction in payments from the Trust Fund of $3,154,297 ($8,492 in reduced payments to non-hospital providers, $1,719,543 in reduced payments for outpatient hospital services, and $1,426,232 in reduced payments for inpatient hospital services). Because this aggregate annual reduction in payments is far less than $100 million, the Department has determined that the proposed rule will not have a significant impact on the economy as a whole.

    Likewise, the Department has determined that the proposed rule will have only a de minimis impact at the firm level. See Table 4. To determine the firm-level impact of the proposed rule, the Department first considered total industry revenues for both non-hospital health care services providers and hospitals. Non-hospital providers generated $827.9 billion in revenues, according to the U.S. Census Bureau's Statistics of U.S. Businesses (SUSB) most recent data for 2012.10 Dividing annual revenues by the number of firms in the sector in the entire U.S. (485,235),11 non-hospital providers generated average annual revenues of $1.7 million per firm. See Table 4. A total of 1,210 non-hospital providers rendered services to entitled miners in FY 2014. See Table 1. Based on an analysis of the Trust Fund payment data, the Department estimates that 420 firms (out of 1,210) would receive net reductions in payments from the Trust Fund under the proposed rule.12 The Department estimates that the aggregate reduction in payments for these 420 negatively affected firms would be $373,156. See Table 4. Thus, the average reduction in payments to each negatively affected firm would be $888 (373,156 divided by 420), or 0.05% (888 divided by 1,700,000) of average firm revenue. See Table 4. The Department believes that this average reduction is de minimis and would not significantly affect non-hospital providers.

    10See https://www.census.gov//econ/susb/data/susb2012.html. There is no exact proxy for the non-hospital health care services provider category. The Department has used North American Industry Classification System (NAICS) code 621(Ambulatory Health Care Services) as the proxy for such providers. This category is over inclusive because it includes types of providers not used by entitled miners. It is, however, the most reasonable proxy because 91% of non-hospital health care services providers used by such miners are part of this category. The Department has performed the same analysis shown here at the 4-digit NAICS level and found that the conclusion of no significant impact did not change.

    11See https://www.census.gov//econ/susb/data/susb2012.html.

    12 As discussed in Section V.A.1. of the preamble, the Department estimated the number of providers that could be negatively affected by the proposed rule based on the number of providers receiving reimbursements from the Trust Fund that would see a decrease in the amount of reimbursement using the proposed formulas versus current practice. See Table 5 infra for the geographic distribution of negatively affected non-hospital providers.

    Hospitals generated $883.1 billion in revenues during 2012.13 Dividing annual revenues by the number of firms in the sector (3,497),14 hospital firms generated average annual revenues of $252.5 million. Based on Trust Fund payment data, OWCP found that a total of 184 hospital firms provided outpatient services to entitled miners in FY 2014. See Table 2. The Department estimates that 177 firms (out of 184) would receive net reductions in payments from the Trust Fund under the proposed rule.15 The Department estimates that the aggregate reduction in payments for these 177 negatively affected firms would be $1,720,182. See Table 4. Thus, the average reduction in payments to each negatively affected hospital providing outpatient services would be $9,719 (1,720,182 divided by 177), or 0.004% (9,719 divided by 252.5 million) of average annual revenue for the negatively affected firms. See Table 4. The Department believes that this average reduction is de minimis and would not significantly affect hospital outpatient services providers.

    13 The Department has used NAICS code 622 (Hospitals) as the proxy for providers of both outpatient and inpatient services.

    14See https://www.census.gov//econ/susb/data/susb2012.html.

    15See Section V.A.1. of the preamble and n.11. See Table 6 infra for the geographic distribution of negatively affected outpatient hospital providers.

    With respect to inpatient hospital services, Trust Fund payment data showed that 156 hospitals provided such services to entitled miners in FY 2014. See Table 3. The Department estimates that 80 firms (out of 156) would receive net reductions in payments from the Trust Fund under the proposed rule.16 The Department estimates that the aggregate reduction in payments for these 80 negatively affected firms would be $3,338,650. See Table 4. Thus, the average reduction in payments to each negatively affected hospital providing inpatient services would be $41,733 (3,338,650 divided by 80), or 0.016% (41,733 divided by 252.5 million) of average annual revenue. See Table 4. The Department believes that this average annual reduction in revenue is de minimis and would not significantly affect hospital inpatient services providers.

    16See Section V.A.1. of the preamble and nn.11 & 14. See Table 7 infra for the geographic distribution of negatively affected inpatient hospital providers.

    Finally, the Department does not believe that any reduction in payments from the Trust Fund to firms that provide both outpatient and inpatient hospital services would be significant. For example, if payments to a particular firm for outpatient services were reduced by $9,719 (the average reduction for all providers of outpatient services) and payments to the same firm for inpatient services were reduced by $41,733 (the average reduction for all providers of inpatient services), the combined reduction of $51,452 would represent only 0.2% (51,452 divided by 252.5 million) of average firm revenue. Notably, some firms that provide both types of services (outpatient and inpatient) may experience a reduction in payments for only one type of service, while simultaneously experiencing an offsetting increase in payments for the other type of service.

    Neither does the Department believe that the rule's impact will increase over time. While the total amount of payments by the Trust Fund to providers for medical services and treatments may decrease over time as the number of entitled miners receiving benefits declines, the decrease in payments would result from the decline in the number of beneficiaries, not the proposed rule.17

    17 For example, in FY 2005, the Trust Fund paid approximately $51.2 million to providers for medical services and treatments for 16,794 entitled miners. By FY 2014, Trust Fund payments had dropped to $17.5 million (not adjusted for inflation) for 6,189 entitled miners.

    In sum, the Department believes that the estimated aggregate annual reduction in Trust Fund payments of $3,154,297 will not have a significant impact on the economy. Similarly, the Department believes that the reduction in annual revenue for negatively affected firms (0.05% of average annual revenue for non-hospital health care services providers, 0.004% of average annual revenue for hospitals providing outpatient services, and 0.016% of average annual revenue for hospitals providing inpatient services) will not have a significant impact on those individual firms.

    EP04JA17.013 B. Other Considerations

    The Department considered numerous options and methods before proposing these payment formulas for the black lung program. The Department believes that the proposed formulas and methods best serve the interests of all stakeholders. The proposed rule would bring medical payments under the black lung program in line with today's industry-wide practice, protect the Trust Fund from excessive payments, and compensate health care services providers sufficiently to ensure that entitled miners have continued access to medical care. Thus, the adoption of the payment formulas, as set forth in proposed §§ 725.707-725.711, has multiple advantages.

    In addition, the Department will realize some economies of scale by using payment formulas that are similar to those in OWCP's other compensation programs. Maintaining a wholly separate system for black lung medical bill payments has required increased administration and therefore increased costs. It has also led to disparities in provider reimbursements. The proposed payment formulas, like other modern medical payment methodologies, have built-in cost control mechanisms that help prevent inaccurate payments and would therefore preserve Trust Fund assets. Also, because the amounts paid under these formulas reflect industry standards, recouping medical benefits paid by the Trust Fund on an interim basis from liable operators and their insurance carriers should be routine. And by migrating to the new system, the Department hopes to shorten the time period for reimbursements, thus benefitting providers with prompt payment. Finally, the proposed rule will benefit claimants, liable operators, insurance carriers, medical service providers, and secondary medical payers simply by improving the clarity of the black lung medical bill payment process.

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

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” Public Law 96-354. As a result, agencies must determine whether a proposed rule may have a “significant” economic impact on a “substantial” number of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. See 5 U.S.C. 603. If the agency estimates that a proposed rule would have a significant impact on a substantial number of small entities, then it must prepare a regulatory flexibility analysis as described in the RFA. Id. However, if a proposed rule is not expected to have a significant impact on a substantial number of small entities, the agency may so certify and a regulatory flexibility analysis is not required. See 5 U.S.C. 605(b). The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

    The RFA does not define “significant” or “substantial.” 5 U.S.C. 601. It is widely accepted, however, that “[t]he agency is in the best position to gauge the small entity impacts of its regulations.” SBA Office of Advocacy, “A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act,” at 18 (May 2012) (“SBA Guide for Government Agencies”).18 One measure for determining whether an economic impact is “significant” is the percentage of revenue affected. For this rule, the Department used as a standard of significant economic impact whether the costs for a small entity equal or exceed 3% of the entity's annual revenue. Similarly, one measure for determining whether a “substantial” number of small entities are affected is the percentage of small entities affected on an industry-wide basis. For this rule, the Department has used as a standard to measure a “substantial number of small entities” whether 15% or more of the small entities in a given industry are significantly affected. The regulatory flexibility analysis for this NPRM is based on these two measures.19

    18 Accessed at http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf.

    19 The Department has used the threshold of 3% of revenues for the definition of significant economic impact and the threshold of 15% for the definition of substantial number of small entities affected in a number of recent rulemakings. See, e.g., Wage and Hour Division, Establishing a Minimum Wage for Contractors, Notice of Proposed Rulemaking, 79 FR 34568, 34603 (June 17, 2014); Office of Federal Contract Compliance Programs, Government Contractors, Requirement To Report Summary Data on Employee Compensation, Notice of Proposed Rulemaking, 79 FR 46562, 46591 (Aug. 8, 2014). The 3% and 15% standards are also consistent with the standards utilized by various other Federal agencies in conducting their regulatory flexibility analyses. See, e.g., Department of Health and Human Services Centers for Medicare & Medicaid Services, “Medicare and Medicaid Programs; Regulatory Provisions To Promote Program Efficiency, Transparency, and Burden Reduction; Part II; Final Rule,” 79 FR 27106, 27151 (May 12, 2014).

    Although the proposed rule is not expected to have a significant economic impact on a substantial number of small entities, the Department has conducted this initial regulatory flexibility analysis to aid stakeholders in understanding the impact of the proposed rule on small entities and to obtain additional information on such impacts. The Department invites interested parties to submit comments on the analysis, including the number of small entities affected by the proposed rule, the cost estimates, and whether alternatives exist that would reduce the burden on small entities. In particular, because the Department does not have access to revenue data for affected providers (and, thus, based this analysis on nationwide revenue averages), the Department is particularly interested in receiving comments regarding the proposed rule's potential revenue impact on affected firms.

    A. Description of the Reasons That Action by the Agency Is Being Considered

    The Department's current regulations specify that payments for medical services and treatments must be paid at “no more than the rate prevailing in the community [where the provider is located].” 20 CFR 725.706(c). But the rules do not address how that rate should be determined. Currently, OWCP applies internally-derived formulas to determine payments for services and treatments under the BLBA. The current system, however, is difficult to administer and, in some instances, may not accurately reflect prevailing community rates. In addition, because the current payment formulas do not always reflect standard industry practice, the Department has encountered resistance from operators and insurance carriers when seeking reimbursement for medical benefits initially paid by the Trust Fund on an interim basis or when the Department seeks to enforce a final benefit award.

    B. Objectives of, and Legal Basis for, the Proposed Rule

    Section 426(a) of the BLBA authorizes the Secretary to “issue such regulations as he deems appropriate to carry out the provisions of this title.” 30 U.S.C. 936(a). The proposed rule adopts formulas for the payment of medical services and treatments under the black lung program that are derived from those used in the Medicare program and are similar to the payment formulas utilized in the other compensation programs that OWCP administers. The proposed payment formulas conform to current industry practice, and more accurately reflect prevailing community rates. The proposed rule, therefore, will help prevent inaccurate payments, control health care costs, streamline the processing of bills, and provide for similar payment policies and practices throughout all OWCP programs.

    C. Number of Small Entities Affected 1. Introduction

    The Regulatory Flexibility Act requires an agency to describe and, where feasible, estimate the number of small entities to which a proposed rule will apply. 5 U.S.C. 603(b)(3). Small entities include small businesses, small organizations, and small governmental jurisdictions. 5 U.S.C. 601(6). Under the RFA, small organizations are defined as not-for-profit, independently owned and operated enterprises, that are not dominant in their field. 5 U.S.C. 601(4); see also SBA Guide for Government Agencies at 14. To ensure it adequately addresses potential impact on small entities, the Department's analysis assumes that all not-for-profit entities that provide medical services to miners under the BLBA are independently owned and operated, not dominant in their field, and thus are small organizations regardless of their revenue size.

    The data sources used in the Department's analysis are the Small Business Administration (SBA) Table of Small Business Size Standards,20 the U.S. Census Bureau's Statistics of U.S. Businesses (SUSB),21 and the U.S. Census Bureau's Economic Census,22 which provide annual data on the number of firms, employment, and annual revenue by industry. The industrial classifications most directly affected by this rule are: (1) Ambulatory Health Care Services (North American Industry Classification System (NAICS) code 621), which includes offices of physicians, outpatient care centers,23 medical and diagnostic laboratories, and home health care services (collectively referred to as “non-hospital health care services providers” or “non-hospital providers”); and (2) Hospitals (NAICS code 622).

    20See http://www.sba.gov/content/small-business-size-standards.

    21See https://www.census.gov/econ/susb/.

    22See http://factfinder.census.gov/.

    23 Outpatient care centers are distinct from hospitals that provide outpatient services.

    2. The Department's Analysis

    The Department estimated the number of small businesses of each provider type that could be negatively affected by the rule by multiplying (a) the percentage of small entities of that provider type in the industry as a whole by (b) the estimated number of black lung service providers of that type (both small and large entities) that could be negatively affected by the rule. The Department estimated the number of non-hospital and hospital providers that could be negatively affected by the proposed rule by comparing: (a) The amount that the Trust Fund actually paid to providers for medical services performed in Fiscal Year 2014 (current practice); and (b) the amount the Trust Fund would have paid to providers for the same services using the payment formulas in the proposed rule. See Section V.A.1. The next two subsections provide additional details on how the Department estimated the number of small, negatively impacted, non-hospital and hospital providers.

    a. Non-Hospital Health Care Service Providers

    According to SUSB data, there are 485,235 non-hospital health care services providers in the United States. Of that total, 482,584, or 99.5%, are classified as small businesses by the SBA (this includes both for-profit and not-for-profit businesses).24 Of the remaining 2,651 non-hospital providers that are not classified as small under the SBA definition, 1.7%—or 45 (2,651 × 0.17)—are classified as not-for-profit by the Economic Census, and thus considered small organizations (i.e., any not-for-profit entity that is independently owned and operated and not dominant in its field). In total, the Department estimates that 482,629 non-hospital providers (482,584 classified as small under SBA revenue criteria, plus 45 additional not-for-profit providers) are small entities for purposes of the RFA. Thus, 99.5%, (482,629 divided by 485,235) of all non-hospital providers in the United States are classified as small entities within the meaning of the RFA.

    24 The SBA's small business size standards for subsectors within the ambulatory health care services industry range from $7.5 million to $38.5 million.

    To determine the number of small non-hospital providers that could be negatively impacted by the proposed rule, the Department multiplied the overall, industry-wide percentage of small, non-hospital providers (99.5%) by the number of non-hospital providers (both small and large) that the Department estimates could be negatively affected by the rule (420). See Table 5. That multiplication yielded an estimate that 418 small, non-hospital providers could be negatively affected by the rule. Table 5 provides information on all negatively impacted non-hospital providers, small and large, on a state-by-state basis.

    EP04JA17.014 b. Hospitals

    According to SUSB data, there are 3,497 hospitals in the United States. Of that total, 1,547, or 44.2%, are classified as small businesses by the SBA (this includes both for-profit and not-for-profit businesses).25 Of the remaining 1,950 hospitals that are not classified as small under the SBA definition, 87.9%—or 1,714 (1,950 × 0.879)—are classified as not-for-profit by the Economic Census, and thus considered small organizations (i.e. any not-for-profit entity that is independently owned and operated and not dominant in its field). In total, the Department estimates that 3,261 hospitals (1,547 classified as small under SBA revenue criteria, plus 1,714 additional not-for-profit hospitals) are small entities for purposes of the RFA. Thus, 93.3%, (3,261 divided by 3,497) of all hospitals in the United States are classified as small entities within the meaning of the RFA.

    25 SBA defines a hospital provider as small if it has $38.5 million or less in annual revenue.

    To determine the number of small hospitals that could be negatively impacted by the proposed rule, the Department multiplied the overall, industry-wide percentage of small hospitals (93.3%) by the number of hospitals (both small and large) that the Department estimates could be negatively affected by the rule.

    The Department performed the above-described analysis separately for: (a) Hospitals providing outpatient services to entitled black lung patients; and (b) hospitals providing inpatient services to entitled black lung patients. Specifically, for outpatient providers, the Department estimated that a total of 177 hospitals could be negatively affected by the proposed rule and that, of that total, 165 (or 93.3%) are small hospitals. See Table 2, Table 6. Similarly, for inpatient providers, the Department estimated that a total of 80 hospitals could be negatively affected by the proposed rule and that, of that total, 75 (or 93.3%) are small hospitals.

    Tables 6 and 7 provide information on all negatively impacted hospitals, small and large, on a state-by-state basis, addressing, respectively, hospitals providing outpatient services to black lung patients and hospitals providing inpatient services to black lung patients.

    EP04JA17.015 EP04JA17.016 D. Costs to Small Entities Affected

    The Department estimates that the proposed rule will not result in a significant impact (defined as 3% or more of annual revenue) on a substantial number of small entities (defined as 15% or more of all negatively affected small entities in the relevant industry). The relevant industries are defined as non-hospital health care services providers and hospitals. The Department has determined that the proposed rule will not impose any additional reporting, recordkeeping, or other compliance costs on affected entities. With respect to the reduction in payments from the Trust Fund, the Department estimates that no small entities providing non-hospital health care services will experience a significant impact (a loss of 3% or more of annual revenues). As for hospitals, the Department estimates that hospitals with revenues/receipts between $100,000 and $499,900 providing outpatient services and hospitals with revenues/receipts between $100,000 and $999,999 providing inpatient services would experience a significant impact. Assuming that the affected hospitals exhibit the same revenue distribution as firms nationally, the Department estimates that only one small firm providing outpatient services and two small firms providing inpatient services will be significantly impacted. These entities do not constitute a substantial number (15% or more) of the total number of negatively affected small hospitals providing either outpatient or inpatient services.

    1. Estimated Reporting, Recordkeeping, and Other Compliance Costs to Small Entities

    Based on its analysis of available data, the Department has determined that the proposed rule will not impose any additional reporting, recordkeeping, or other compliance costs on providers. The proposed procedures for the submission and payment of medical bills conform to current industry standards for the processing of such bills. Providers are familiar with the proposed procedures and already have adequate billing systems in place for use in connection with other programs such as Medicare. Moreover, a number of provisions in the proposed rule simply codify current practice. Thus, the Department has determined that the proposed rule would not impose any additional reporting, recordkeeping, or compliance costs on providers, regardless of firm size.

    2. Estimated Costs to Small Entities From Changes in Payments by the Trust Fund

    In order to determine whether the proposed rule would result in a significant impact on any small businesses, the Department first estimated the revenues for negatively affected small entities of each provider type (non-hospital and hospital service providers) and then determined whether the estimated impact on those firms was significant. See Section V.A.2. The Department does not have individual revenue data for black lung service providers, but does have SBA data on the distribution of firms across the industry by revenue size. The Department therefore estimated the number of small negatively affected firms of each provider type in different revenue/receipts bands, by multiplying the industry-distribution percentage of firms in those revenue/receipts bands by the number of negatively affected black lung providers of that type, accounting for the fact that all not-for-profit providers are classified as small entities. See Tables 8-10. The Department then determined whether the estimated cost to each firm, as calculated in Section V.A.2. of this preamble, was significant (a reduction in average annual revenue of 3% or more) to a firm in that revenue band. The Department determined that only 3 of the 658 negatively affected black lung providers in all provider categories were significantly impacted. See Tables 8-10, Table 11. The Department finally calculated whether the number of small providers of each type that would experience a significant impact as a result of the proposed rule represented a substantial percentage (15% or more) of all negatively affected small entities of that type, and determined that they did not. See Tables 8-10, Table 11.

    a. Non-Hospital Health Care Services Providers

    As discussed earlier, the Department estimates that 420 non-hospital health care services providers would experience a reduction in payments from the Trust Fund as a result of the proposed rule, and that 418 of these are estimated to be small entities. See VI.C.2.a., Table 4, Table 8, Table 11. Also, the Department estimates the annual cost of the proposed rule will be $888 for each negatively affected non-hospital health care services provider. See Section V.A.2., Table 4, Table 8, Table 11. The Department divided the estimated annual cost of the proposed rule to non-hospital health care services providers by the average revenue in each revenue band to estimate the average percentage of revenue lost by these providers. See Table 8. The Department acknowledges that uniformly applying the annual cost of the proposed rule across all negatively affected entities is an analytical assumption that likely does not reflect the true distribution of the costs of this proposed rule. However, OWCP does not have the data to develop a more accurate distribution of costs and believes that this proportional distribution likely overestimates the costs to the smallest providers. The costs of this proposed rule are small relative to the revenue and receipts of most providers and the impact of these costs might be hidden were OWCP to more heavily weight the distribution of costs towards larger firms. The Department believes this proportional distribution allows OWCP to focus this analysis on the impact on the smallest providers even though these impacts may be overstated. Based on these calculations, the Department does not believe that any of the negatively affected small entities providing non-hospital health care services will experience a significant impact (i.e., a loss of 3% or more of annual revenue) from the proposed rule. See Table 8, Table 11. For example, even in the lowest revenue band (less than $100,000 in annual revenue), the average annual revenue reduction resulting from the proposed rule would be only 1.77% ($888 divided by $50,173). See Table 8. The number of small non-hospital health care services providers that would experience a significant impact (zero) is plainly not a significant percentage (15% or more) of all such negatively affected small entities.

    EP04JA17.017 b. Hospital Outpatient Service Providers

    The Department estimates that 177 hospitals that provide outpatient services to entitled miners would experience a reduction in payments from the Trust Fund as a result of the proposed rule, and that 168 of these hospitals are small. See VI.C.2.b., Table 4, Table 9, Table 11. Also, the Department estimates the annual cost of the proposed rule will be $9,719 for each negatively affected hospital outpatient services provider.26 See V.A.2., Table 4, Table 11. The Department divided the estimated annual cost of the proposed rule for negatively affected hospital outpatient services providers by the average revenue in each revenue band to estimate the average percentage of revenue lost by these providers. See Table 9. Based on these calculations, the Department estimates that only one provider (in the $100,000-$499,000 revenue band) will experience a significant impact from the proposed rule. See Table 9. The Department estimates that this firm would experience a reduction in revenue of 3.73% ($9,719 divided by $260,292). See Table 9. Because this single entity represents only 0.6% (1 divided by 165) of all negatively affected small outpatient service entities, however, the proposed rule will not have a significant effect on a substantial number (15% or more) of all negatively affected small hospital outpatient service providers. See Table 11.

    26 As previously noted, the Department acknowledges that uniformly applying the annual cost of the proposed rule across all negatively affected entities likely overstates the impact on smaller providers. See Section VI.D.2.a. of the preamble.

    Because revenue data for entities in the $0-100,000 revenue band is not available, see Table 9, the Department was unable to calculate whether the impact of the proposed rule on providers in that revenue band would be significant. Nonetheless, even assuming that the only negatively impacted entity in the $0-$100,000 revenue band also experienced a significant impact, only 1.2% (2 divided by 165) of negatively affected small entities would experience a significant impact. This impact is still less than the 15% threshold for determining whether a substantial number of all negatively affected small entities would experience a significant impact.

    EP04JA17.018 c. Hospital Inpatient Services Providers

    Finally, the Department estimates that 80 hospitals that provide inpatient services to entitled miners would experience an annual reduction in payments from the Trust Fund as a result of the proposed rule, and that 35 of these are small entities. See VI.C.2.b., Table 4, Table 10, Table 11. Also, the Department estimates the annual cost of the proposed rule will be $41,733 for each negatively affected hospital inpatient services provider. 27 See V.A.2., Tables 4, Table 11. The Department divided the estimated annual cost of the proposed rule on each negatively affected hospital inpatient services provider by the average revenue in each revenue band to estimate the average percentage of revenue lost by these providers. See Table 10. Based on these calculations, the Department estimates that only two entities (one in the $100,000-$499,999 revenue band and one in the $500,000-$999,999 revenue band) will experience a significant impact (greater than 3% of annual revenue) from the proposed rule. See Table 10. Because these two entities represent only 2.6% (2 divided by 75) of all negatively affected entities, however, the proposed rule will not a have significant effect on a substantial number (15% or more) of all negatively affected hospital inpatient services providers. See Table 11.

    27 As previously noted, the Department acknowledges that uniformly applying the annual cost of the proposed rule across all negatively affected entities likely overstates the impact on smaller providers. See Section VI.D.2.a. of the preamble; n.34.

    Because revenue data for entities in the $0-100,000 revenue band are not available, see Table 10, the Department was unable to calculate whether the impact of the proposed rule on providers in that revenue band would be significant. Assuming that the only negatively impacted entity in the $0-$100,000 revenue band also experienced a significant impact, only 4.0% (3 divided by 75) of all negatively affected small entities would experience a significant impact. This impact is still less than the 15% threshold for determining whether a substantial number of negatively affected small entities would experience a significant impact.

    EP04JA17.019 E. Summary

    In summary, the Department estimates that the proposed rule will not have a significant impact on any small entity providing non-hospital health care services. In addition, it will have a significant impact on only one small hospital entity providing outpatient services and two providing inpatient services. For each category of provider, the percentage of small entities experiencing a significant impact (loss of 3% or more of annual revenue) from the proposed rule (0% for professional medical services, 0.6% for outpatient hospital services, and 2.6% for inpatient hospital services) does not represent a substantial number (15% or more) of all negatively affected small entities in that category.

    Moreover, the Department's calculations likely overestimate the impact of the proposed rule on negatively affected small entities. The per-provider loss calculations are based on an average of all entities in each category, regardless of size. The Department presumes that larger entities—i.e., those with revenue exceeding the SBA's thresholds—treat more entitled miners, and thus receive larger total payments from the Trust Fund than smaller entities. Thus, the actual per-provider cost for small entities in each provider category likely will be smaller than the estimates used by the Department in this analysis. To ensure adequate consideration of the impact on small entities, however, the Department used these unlikely, category-wide average cost estimates to determine whether the rule would have a significant economic impact on a substantial number of small entities.

    EP04JA17.020 F. Identification of Relevant Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule

    The Department is unaware of any rules that may duplicate, overlap, or conflict with the proposed rule.

    G. Description of Any Significant Alternatives to the Proposed Rule That Accomplish the Stated Objectives of Applicable Statutes and That Minimize Any Significant Impact of the Proposed Rule on Small Entities

    The RFA requires the Department to consider alternatives to the proposed rule that would minimize any significant economic impact on small entities without sacrificing the stated objectives of the applicable statute. There is no basis in the statute for exempting small firms from payment rules or for providing different payment rules for small versus large firms. Moreover, providing different rules would defeat the proposed rule's stated objective: To employ modern payment methods and streamline the payment process, while protecting the limited resources of the Trust Fund.

    H. Comments To Assist the Regulatory Flexibility Analysis

    Although the Department estimates that the proposed rule would not have a significant economic impact (more than 3% of revenue) on a substantial number of small entities (more than 15% in the industry), the Department would appreciate feedback on the data, factors, and assumptions used in its analysis. Accordingly, the Department invites all interested parties to submit comments regarding the costs and benefits of the proposed rule, with particular attention to the effects of the rule on small entities.

    VII. Unfunded Mandates Reform Act of 1995

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

    VIII. Executive Order 13132 (Federalism)

    The Department has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” E.O. 13132, 64 FR 43255 (Aug. 4, 1999). The proposed rule will not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government” if promulgated as a final rule. Id.

    IX. Executive Order 12988 (Civil Justice Reform)

    The proposed rule meets the applicable standards in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    X. Congressional Review Act

    The proposed rule is not a “major rule” as defined in the Congressional Review Act, 5 U.S.C. 801 et seq. If promulgated as a final rule, 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 for consumers, individual industries, Federal, State or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

    List of Subjects in 20 CFR Part 725

    Administrative practice and procedure, Black lung benefits, Claims, Coal miners' entitlement to benefits, Health care, Reporting and recordkeeping requirements, Survivors' entitlement to benefits, Total disability due to pneumoconiosis, Vocational rehabilitation, Workers' compensation.

    For the reasons set forth in the preamble, the Department of Labor proposes to amend 20 CFR part 725 as follows:

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

    5 U.S.C. 301; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at sec. 701; Reorganization Plan No. 6 of 1950, 15 FR 3174; 30 U.S.C. 901 et seq., 902(f), 921, 932, 936; 33 U.S.C. 901 et seq.; 42 U.S.C. 405; Secretary's Order 10-2009, 74 FR 58834.

    2. Amend § 725.308 as follows: a. Remove paragraph (b); b. Redesignate paragraph (c) as paragraph (b); c. Remove from the second sentence in paragraph (c) “However, except as provided in paragraph (b) of this section,”. 3. In part 725, revise subpart J as follows: Subpart J—Medical Benefits and Vocational Rehabilitation Sec. 725.701 What medical benefits are available? 725.702 Who is considered a physician? 725.703 How is treatment authorized? 725.704 How are arrangements for medical care made? 725.705 Is prior authorization for medical services required? 725.706 What reports must a medical provider give to OWCP? 725.707 At what rate will fees for medical services and treatments be paid? 725.708 How are payments for professional medical services and medical equipment determined? 725.709 How are payments for prescription drugs determined? 725.710 How are payments for outpatient medical services determined? 725.711 How are payments for inpatient medical services determined? 725.712 When and how are fees reduced? 725.713 If a fee is reduced, may a provider bill the claimant for the balance? 725.714 How do providers enroll with OWCP for authorizations and billing? 725.715 How do providers submit medical bills? 725.716 How should a miner prepare and submit requests for reimbursement for covered medical expenses and transportation costs? 725.717 What are the time limitations for requesting payment or reimbursement for medical services or treatments? 725.718 How are disputes concerning medical benefits resolved? 725.719 What is the objective of vocational rehabilitation? 725.720 How does a miner request vocational rehabilitation assistance? Subpart J—Medical Benefits and Vocational Rehabilitation
    § 725.701 What medical benefits are available?

    (a) A miner who is determined to be eligible for benefits under this part or part 727 of this subchapter (see § 725.4(d)) is entitled to medical benefits as set forth in this subpart as of the date of his or her claim, but in no event before January 1, 1974. Medical benefits may not be provided to the survivor or dependent of a miner under this part.

    (b) A responsible operator, or where there is none, the fund, must furnish a miner entitled to benefits under this part with such medical services and treatments (including professional medical services and medical equipment, prescription drugs, outpatient medical services, inpatient medical services, and any other medical service, treatment or supply) for such periods as the nature of the miner's pneumoconiosis and disability requires.

    (c) The medical benefits referred to in paragraphs (a) and (b) of this section include palliative measures useful only to prevent pain or discomfort associated with the miner's pneumoconiosis or attendant disability.

    (d) An operator or the fund must also pay the miner's reasonable cost of travel necessary for medical treatment (to be determined in accordance with prevailing United States government mileage rates) and the reasonable documented cost to the miner or medical provider incurred in communicating with the operator, carrier, or OWCP on matters connected with medical benefits.

    (e)(1) If a miner receives a medical service or treatment, as described in this section, for any pulmonary disorder, there will be a rebuttable presumption that the disorder is caused or aggravated by the miner's pneumoconiosis.

    (2) The party liable for the payment of benefits may rebut the presumption by producing credible evidence that the medical service or treatment provided was for a pulmonary disorder apart from those previously associated with the miner's disability, or was beyond that necessary to effectively treat a covered disorder, or was not for a pulmonary disorder at all.

    (3) An operator or the fund, however, cannot rely on evidence that the miner does not have pneumoconiosis or is not totally disabled by pneumoconiosis arising out of coal mine employment to defeat a request for coverage of any medical service or treatment under this subpart.

    (4) In determining whether the treatment is compensable, the opinion of the miner's treating physician may be entitled to controlling weight pursuant to § 718.104(d).

    (5) A finding that a medical service or treatment is not covered under this subpart will not otherwise affect the miner's entitlement to benefits.

    § 725.702 Who is considered a physician?

    The term “physician” includes only doctors of medicine (MD) and doctors of osteopathy (DO) within the scope of their practices as defined by State law. No treatment or medical services performed by any other practitioner of the healing arts is authorized by this part, unless such treatment or service is authorized and supervised both by a physician as defined in this section and by OWCP.

    § 725.703 How is treatment authorized?

    (a) Upon notification to a miner of such miner's entitlement to benefits, OWCP must provide the miner with a list of authorized treating physicians and medical facilities in the area of the miner's residence. The miner may select a physician from this list or may select another physician with approval of OWCP. Where emergency services are necessary and appropriate, authorization by OWCP is not required.

    (b) OWCP may, on its own initiative, or at the request of a responsible operator, order a change of physicians or facilities, but only where it has been determined that the change is desirable or necessary in the best interest of the miner. The miner may change physicians or facilities subject to the approval of OWCP.

    (c) If adequate treatment cannot be obtained in the area of the claimant's residence, OWCP may authorize the use of physicians or medical facilities outside such area as well as reimbursement for travel expenses and overnight accommodations.

    § 725.704 How are arrangements for medical care made?

    (a) Operator liability. If an operator has been determined liable for the payment of benefits to a miner, OWCP will notify the operator or its insurance carrier of the names, addresses, and telephone numbers of the authorized providers of medical benefits chosen by an entitled miner, and require the operator or carrier to:

    (1) Notify the miner and the providers chosen that the operator or carrier will be responsible for the cost of medical services provided to the miner on account of the miner's total disability due to pneumoconiosis;

    (2) Designate a person or persons with decision-making authority with whom OWCP, the miner and authorized providers may communicate on matters involving medical benefits provided under this subpart and notify OWCP, the miner and providers of this designation;

    (3) Make arrangements for the direct reimbursement of providers for their services.

    (b) Fund liability. If there is no operator found liable for the payment of benefits, OWCP will make necessary arrangements to provide medical care to the miner, notify the miner and providers selected of the liability of the fund, designate a person or persons with whom the miner or provider may communicate on matters relating to medical care, and make arrangements for the direct reimbursement of the medical provider.

    § 725.705 Is prior authorization for medical services required?

    (a) Except as provided in paragraph (b) of this section, medical services from an authorized provider which are payable under § 725.701 do not require prior approval of OWCP or the responsible operator.

    (b) Except where emergency treatment is required, prior approval of OWCP or the responsible operator must be obtained before any hospitalization or surgery, or before ordering medical equipment where the purchase price exceeds $300. A request for approval of non-emergency hospitalization or surgery must be acted upon expeditiously, and approval or disapproval will be given by telephone if a written response cannot be given within 7 days following the request. No employee of the Department of Labor, other than a district director or the Chief, Medical Audit and Operations Section, DCMWC, is authorized to approve a request for hospitalization or surgery by telephone.

    § 725.706 What reports must a medical provider give to OWCP?

    (a) Within 30 days following the first medical or surgical treatment provided under § 725.701, the provider must furnish to OWCP and the responsible operator or its insurance carrier, if any, a report of such treatment.

    (b) In order to permit continuing supervision of the medical care provided to the miner with respect to the necessity, character and sufficiency of any medical care furnished or to be furnished, the provider, operator or carrier must submit such reports in addition to those required by paragraph (a) of this section as OWCP may from time to time require. Within the discretion of OWCP, payment may be refused to any medical provider who fails to submit any report required by this section.

    § 725.707 At what rate will fees for medical services and treatments be paid?

    (a) All fees charged by providers for any medical service, treatment, drug or equipment authorized under this subpart will be paid at no more than the rate prevailing for the service, treatment, drug or equipment in the community in which the provider is located.

    (b) When medical benefits are paid by the fund at OWCP's direction, either on an interim basis or because there is no liable operator, the prevailing community rate for various types of service will be determined as provided in §§ 725.708-725.711.

    (c) The provisions of §§ 725.708-725.711 do not apply to charges for medical services or treatments furnished by medical facilities of the U.S. Public Health Service or the Departments of the Army, Navy, Air Force and Veterans Affairs.

    (d) If the provisions of §§ 725.708-725.711 cannot be used to determine the prevailing community rate for a particular service or treatment or for a particular provider, OWCP may determine the prevailing community rate by reliance on other federal or state payment formulas or on other evidence, as appropriate.

    (e) OWCP must review the payment formulas described in §§ 725.708-725.711 at least once a year, and may adjust, revise or replace any payment formula or its components when necessary or appropriate.

    (f) The provisions of §§ 725.707-725.711 apply to all medical services or treatments rendered on or after the effective date of this rule.

    § 725.708 How are payments for professional medical services and medical equipment determined?

    (a)(1) OWCP pays for professional medical services based on a fee schedule derived from the schedule maintained by the Centers for Medicare & Medicaid Services (CMS) for the payment of such services under the Medicare program (42 CFR part 414). The schedule OWCP utilizes consists of: An assignment of Relative Value Units (RVU) to procedures identified by Healthcare Common Procedure Coding System/Current Procedural Terminology (HCPCS/CPT) code, which represents the work (relative time and intensity of the service), the practice expense and the malpractice expense, as compared to other procedures of the same general class; an assignment of Geographic Practice Cost Index (GPCI) values, which represent the relative work, practice expense and malpractice expense relative to other localities throughout the country; and a monetary value assignment (conversion factor) for one unit of value for each coded service.

    (2) The maximum payment for professional medical services identified by a HCPCS/CPT code is calculated by multiplying the RVU values for the service by the GPCI values for such service in that area and multiplying the sum of these values by the conversion factor to arrive at a dollar amount assigned to one unit in that category of service.

    (3) OWCP utilizes the RVUs published, and updated or revised from time to time, by CMS for all services for which CMS has made assignments. Where there are no RVUs assigned, OWCP may develop and assign any RVUs that OWCP considers appropriate. OWCP utilizes the GPCI for the locality as defined by CMS and as updated or revised by CMS from time to time. OWCP will devise conversion factors for professional medical services using OWCP's processing experience and internal data.

    (b) Where a professional medical service is not covered by the fee schedule described in paragraph (a) of this section, OWCP may pay for the service based on other fee schedules or pricing formulas utilized by OWCP for professional medical services.

    (c) OWCP pays for medical equipment identified by a HCPCS/CPT code based on fee schedules or other pricing formulas utilized by OWCP for such equipment.

    § 725.709 How are payments for prescription drugs determined?

    (a)(1) OWCP pays for drugs prescribed by physicians by multiplying a percentage of the average wholesale price, or other baseline price as specified by OWCP, of the medication by the quantity or amount provided, plus a dispensing fee.

    (2) All prescription medications identified by National Drug Code are assigned an average wholesale price representing the product's nationally recognized wholesale price as determined by surveys of manufacturers and wholesalers, or another baseline price designated by OWCP.

    (3) OWCP may establish the dispensing fee.

    (b) If the pricing formula described in paragraph (a) of this section is inapplicable, OWCP may make payment based on other pricing formulas utilized by OWCP for prescription medications.

    (c) OWCP may, in its discretion, contract for or require the use of specific providers for certain medications. OWCP also may require the use of generic equivalents of prescribed medications where they are available.

    § 725.710 How are payments for outpatient medical services determined?

    (a)(1) Except as provided in paragraphs (b) and (c) of this section, OWCP pays for outpatient medical services according to Ambulatory Payment Classifications (APCs) derived from the Outpatient Prospective Payment System (OPPS) devised by the Centers for Medicare & Medicaid Services (CMS) for the Medicare program (42 CFR part 419).

    (2) For outpatient medical services paid under the OPPS, such services are assigned according to the APC prescribed by CMS for that service. Each payment is derived by multiplying the prospectively established scaled relative weight for the service's clinical APC by a conversion factor to arrive at a national unadjusted payment rate for the APC. The labor portion of the national unadjusted payment rate is further adjusted by the hospital wage index for the area where payment is being made. Additional adjustments are also made as required or needed.

    (b) If a compensable service cannot be assigned or paid at the prevailing community rate under the OPPS, OWCP may pay for the service based on fee schedules or other pricing formulas utilized by OWCP for outpatient services.

    (c) This section does not apply to services provided by ambulatory surgical centers.

    § 725.711 How are payments for inpatient medical services determined?

    (a)(1) OWCP pays for inpatient medical services according to pre-determined rates derived from the Medicare Inpatient Prospective Payment System (IPPS) used by the Centers for Medicare & Medicaid Services (CMS) for the Medicare program (42 CFR part 412).

    (2) Inpatient hospital discharges are classified into diagnosis-related groups (DRGs). Each DRG groups together clinically similar conditions that require comparable amounts of inpatient resources. For each DRG, an appropriate weighting factor is assigned that reflects the estimated relative cost of hospital resources used with respect to discharges classified within that group compared to discharges classified within other groups.

    (3) For each hospital discharge classified within a DRG, a payment amount for that discharge is determined by using the national weighting factor determined for that DRG, national standardized adjustments, and other factors which may vary by hospital, such as an adjustment for area wage levels. OWCP may also use other price adjustment factors as appropriate based on its processing experience and internal data.

    (b) If an inpatient service cannot be classified by DRG, occurs at a facility excluded from the Medicare IPPS, or otherwise cannot be paid at the prevailing community rate under the pricing formula described in paragraph (a) of this section, OWCP may pay for the service based on fee schedules or other pricing formulas utilized by OWCP for inpatient services.

    § 725.712 When and how are fees reduced?

    (a) A provider's designation of the code used to identify a billed service or treatment will be accepted if the code is consistent with the medical and other evidence, and the provider will be paid no more than the maximum allowable fee for that service or treatment. If the code is not consistent with the medical evidence or where no code is supplied, the bill will be returned to the provider for correction and resubmission or denied.

    (b) If the charge submitted for a service or treatment supplied to a miner exceeds the maximum amount determined to be reasonable under this subpart, OWCP must pay the amount allowed by §§ 725.707-725.711 for that service and notify the provider in writing that payment was reduced for that service in accordance with those provisions.

    (c) A provider or other party who disagrees with a fee determination may seek review of that determination as provided in this subpart (see § 725.718).

    § 725.713 If a fee is reduced, may a provider bill the claimant for the balance?

    A provider whose fee for service is partially paid by OWCP as a result of the application of the provisions of §§ 725.707-725.711 or otherwise in accordance with this subpart may not request reimbursement from the miner for additional amounts.

    § 725.714 How do providers enroll with OWCP for authorizations and billing?

    (a) All non-pharmacy providers seeking payment from the fund must enroll with OWCP or its designated bill processing agent to have access to the automated authorization system and to submit medical bills to OWCP.

    (b) To enroll, the non-pharmacy provider must complete and submit a Form OWCP-1168 to the appropriate location noted on that form. By completing and submitting this form, providers certify that they satisfy all applicable Federal and State licensure and regulatory requirements that apply to their specific provider or supplier type.

    (c) The non-pharmacy provider must maintain documentary evidence indicating that it satisfies those requirements.

    (d) The non-pharmacy provider must also notify OWCP immediately if any information provided to OWCP in the enrollment process changes.

    (e) All pharmacy providers must obtain a National Council for Prescription Drug Programs number. Upon obtaining such number, they are automatically enrolled in OWCP's pharmacy billing system.

    (f) After enrollment, a provider must submit all medical bills to OWCP through its bill processing portal or to the OWCP address specified for such purpose and must include the Provider Number/ID obtained through enrollment, or its National Provider Number (NPI) or any other identifying numbers required by OWCP.

    § 725.715 How do providers submit medical bills?

    (a) A provider must itemize charges on Form OWCP-1500 or CMS-1500 (for professional services, equipment or drugs dispensed in the office), Form OWCP-04 or UB-04 (for hospitals), an electronic or paper-based bill that includes required data elements (for pharmacies) or other form as designated by OWCP, and submit the form promptly to OWCP.

    (b) The provider must identify each medical service performed using the Current Procedural Terminology (CPT) code, the Healthcare Common Procedure Coding System (HCPCS) code, the National Drug Code (NDC) number, or the Revenue Center Code (RCC), as appropriate to the type of service. OWCP has discretion to determine which of these codes may be utilized in the billing process. OWCP also has the authority to create and supply codes for specific services or treatments. These OWCP-created codes will be issued to providers by OWCP as appropriate and may only be used as authorized by OWCP. A provider may not use an OWCP-created code for other types of medical examinations, services or treatments. (1) For professional medical services, the provider must list each diagnosed condition in order of priority and furnish the corresponding diagnostic code using the “International Classification of Disease, 10th Edition, Clinical Modification” (ICD-10-CM), or as revised.

    (2) For prescription drugs or supplies, the provider must include the NDC assigned to the product, and such other information as OWCP may require.

    (3) For outpatient medical services, the provider must use HCPCS codes and other coding schemes in accordance with the Outpatient Prospective Payment System.

    (4) For inpatient medical services, the provider must include admission and discharge summaries and an itemized statement of the charges.

    (c)(1) By submitting a bill or accepting payment, the provider signifies that the service for which reimbursement is sought was performed as described, necessary, appropriate, and properly billed in accordance with accepted industry standards. For example, accepted industry standards preclude upcoding billed services for extended medical appointments when the miner actually had a brief routine appointment, or charging for the services of a professional when a paraprofessional or aide performed the service; industry standards prohibit unbundling services to charge separately for services that should be billed as a single charge.

    (2) The provider agrees to comply with all regulations set forth in this subpart concerning the provision of medical services or treatments and/or the process for seeking reimbursement for medical services and treatments, including the limitation imposed on the amount to be paid.

    § 725.716 How should a miner prepare and submit requests for reimbursement for covered medical expenses and transportation costs?

    (a) If a miner has paid bills for a medical service or treatment covered under § 725.701 and seeks reimbursement for those expenses, he or she may submit a request for reimbursement on Form OWCP-915, together with an itemized bill. The reimbursement request must be accompanied by evidence that the provider received payment for the service from the miner and a statement of the amount paid. Acceptable evidence that payment was received includes, but is not limited to, a copy of the miner's canceled check (both front and back) or a copy of the miner's credit card receipt.

    (b) OWCP may waive the requirements of paragraph (a) of this section if extensive delays in the filing or the adjudication of a claim make it unusually difficult for the miner to obtain the required information.

    (c) Reimbursements for covered medical services paid by a miner generally will be no greater than the maximum allowable charge for such service as determined under §§ 725.707-725.711.

    (d) A miner will be only partially reimbursed for a covered medical service if the amount he or she paid to a provider for the service exceeds the maximum charge allowable. If this happens, OWCP will advise the miner of the maximum allowable charge for the service in question and of his or her responsibility to ask the provider to refund to the miner, or credit to the miner's account, the amount he or she paid which exceeds the maximum allowable charge.

    (e) If the provider does not refund to the miner or credit to his or her account the amount of money paid in excess of the charge allowed by OWCP, the miner should submit documentation to OWCP of the attempt to obtain such refund or credit. OWCP may make reasonable reimbursement to the miner after reviewing the facts and circumstances of the case.

    (f) If a miner has paid transportation costs or other incidental expenses related to covered medical services under this part, the miner may submit a request for reimbursement on Form OWCP-957 or OWCP-915, together with proof of payment.

    § 725.717 What are the time limitations for requesting payment or reimbursement for medical services or treatments?

    OWCP will pay providers and reimburse miners promptly for all bills received on an approved form and in a timely manner. However, absent good cause, no bill will be paid for expenses incurred if the bill is submitted more than one year beyond the end of the calendar year in which the expense was incurred or the service or supply was provided, or more than one year beyond the end of the calendar year in which the miner's eligibility for benefits is finally adjudicated, whichever is later.

    § 725.718 How are disputes concerning medical benefits resolved?

    (a) If a dispute develops concerning medical services or treatments or their payment under this part, OWCP must attempt to informally resolve the dispute. OWCP may, on its own initiative or at the request of the responsible operator or its insurance carrier, order the claimant to submit to an examination by a physician selected by OWCP.

    (b) If a dispute cannot be resolved informally, OWCP will refer the case to the Office of Administrative Law Judges for a hearing in accordance with this part. Any such hearing concerning authorization of medical services or treatments must be scheduled at the earliest possible time and must take precedence over all other hearing requests except for other requests under this section and as provided by § 727.405 of this subchapter (see § 725.4(d)). During the pendency of such adjudication, OWCP may order the payment of medical benefits prior to final adjudication under the same conditions applicable to benefits awarded under § 725.522.

    (c) In the development or adjudication of a dispute over medical benefits, the adjudication officer is authorized to take whatever action may be necessary to protect the health of a totally disabled miner.

    (d) Any interested medical provider may, if appropriate, be made a party to a dispute under this subpart.

    § 725.719 What is the objective of vocational rehabilitation?

    The objective of vocational rehabilitation is the return of a miner who is totally disabled by pneumoconiosis to gainful employment commensurate with such miner's physical impairment. This objective may be achieved through a program of re-evaluation and redirection of the miner's abilities, or retraining in another occupation, and selective job placement assistance.

    § 725.720 How does a miner request vocational rehabilitation assistance?

    Each miner who has been determined entitled to receive benefits under part C of title IV of the Act must be informed by OWCP of the availability and advisability of vocational rehabilitation services. If such miner chooses to avail himself or herself of vocational rehabilitation, his or her request will be processed and referred by OWCP vocational rehabilitation advisors pursuant to the provisions of §§ 702.501 through 702.508 of this chapter as is appropriate.

    Dated: December 21, 2016. Leonard J. Howie III, Director, Office of Workers' Compensation Programs.
    [FR Doc. 2016-31382 Filed 1-3-17; 8:45 am] BILLING CODE 4510-CR-P
    DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 655 [FHWA Docket No. FHWA-2009-0139] RIN 2125-AF34 National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Maintaining Pavement Marking Retroreflectivity AGENCY:

    Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).

    ACTION:

    Supplemental notice of proposed amendments (SNPA); request for comments.

    SUMMARY:

    The Manual on Uniform Traffic Control Devices (MUTCD) is incorporated in FHWA regulations and recognized as the national standard for traffic control devices used on all streets, highways, bikeways, and private roads open to public travel. The FHWA proposed in an earlier notice of proposed amendment (NPA) to amend the MUTCD to include standards, guidance, options, and supporting information related to maintaining minimum levels of retroreflectivity for pavement markings. Based on the review and analysis of the numerous comments received in response to the NPA, FHWA has substantially revised the proposed amendments to the MUTCD and, as a result, is issuing this SNPA.

    DATES:

    Comments must be received on or before May 4, 2017. Late-filed comments will be considered to the extent practicable.

    ADDRESSES:

    Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, 1200 New Jersey Avenue SE., Washington, DC 20590, or submit electronically at http://www.regulations.gov. All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or may print the acknowledgment page that appears after submitting comments electronically. In accordance with the Administrative Procedure Act, DOT solicits comments from the public to better inform its rulemaking process. The DOT posts these comments, without edit, to www.regulations.gov, as described in the system of records notice, DOT/ALL-14 FDMS, accessible through www.dot.gov/privacy. In order to facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Cathy Satterfield, Office of Safety, [email protected], (708) 283-3552; or Mr. William Winne, Office of the Chief Counsel, [email protected], (202) 366-1397, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION: Electronic Access and Filing

    You may submit or access all comments received by the DOT online through http://www.regulations.gov. Electronic submission and retrieval help and guidelines are available on the Web site. It is available 24 hours each day, 365 days this year. Please follow the instructions. An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at: http://www.ofr.gov and the Government Publishing Office's Web page at: http://www.thefederalregister.org and is available for inspection and copying, as prescribed in 49 CFR part 7, at the FHWA Office of Transportation Operations (HOTO-1), 1200 New Jersey Avenue SE., Washington, DC 20590. Furthermore, the text of the proposed revision is available on the MUTCD Internet Web site at http://mutcd.fhwa.dot.gov. The proposed additions are shown in blue text and proposed deletions are shown as red strikeout text. The complete current 2009 edition of the MUTCD is also available on the same Internet Web site. A copy of the proposed revision is included at the conclusion of the preamble in this document and is also available as a separate document under the docket number noted above at http://www.regulations.gov.

    Executive Summary I. Purpose of the Regulatory Action

    Section 406 of the Department of Transportation and Related Agencies Appropriations Act, 1993 (Pub. L. 102-388; October 6, 1992) directed the Secretary of Transportation to “revise the Manual on Uniform Traffic Control Devices to include—a standard for a minimum level of retroreflectivity that must be maintained for pavement markings and signs, which shall apply to all roads open to public travel.” Improving safety and mobility throughout the transportation network are two of the core goals of the DOT. The purpose of FHWA's proposal to include minimum retroreflectivity levels in the MUTCD 1 is to advance safety and mobility by assisting with the nighttime visibility needs of drivers and improving the infrastructure's ability to work with Intelligent Transportation Systems (ITS) technologies. The final rule for maintaining minimum levels of retroreflectivity for traffic signs was issued on December 21, 2007, at 72 FR 72574. This proposed rule addresses driver visibility needs in terms of pavement markings.

    1 The current edition of the Manual on Uniform Traffic Control Devices can be viewed at the following Internet Web site: http://mutcd.fhwa.dot.gov/kno_2009r1r2.htm.

    II. Summary of the Major Provisions of the Regulatory Action in Question

    This proposed rule would establish minimum retroreflectivity levels for pavement markings on all roads open to public travel with average annual daily traffic (AADT) volumes over 6,000 and speed limits of 35 mph or higher. Agencies or officials having jurisdiction would be required to develop and implement a method for maintaining pavement marking retroreflectivity at minimum levels. It would not require agencies or officials having jurisdiction to upgrade markings by a specific date, nor would it require them to ensure every marking is above the minimum retroreflectivity level at all times.

    This SNPA includes revisions based on docket comments submitted as part of an NPA issued April 22, 2010, at 75 FR 20935. Retroreflectivity levels and locations were simplified from what was presented in the NPA to the following criteria making it easier to understand and implement:

    —Requires a minimum retroreflectivity level of 50 mcd/m2/lx where statutory or posted speed limits are greater than or equal to 35 mph —Recommends a minimum retroreflectivity level of 100 mcd/m2/lx where statutory or posted speed limits are greater than or equal to 70 mph —Applies only to longitudinal lines (e.g., center lines, edge lines, and lane lines). III. Costs and Benefits

    The FHWA has considered the costs and potential benefits of this rulemaking and believes the rulemaking is being implemented in a manner that fulfills our obligation under Section 406 of the Department of Transportation and Related Agencies Appropriations Act, 1993 (Pub. L. 102-388; October 6, 1992), while also providing flexibility for agencies. The estimated national costs are documented in the updated economic analysis report and the flexibility is documented in the new publication titled, “Methods for Maintaining Pavement Marking Retroreflectivity.” Both of these are available on the docket.

    The MUTCD already requires that pavement markings that must be visible at night shall be retroreflective unless ambient illumination assures that the markings are adequately visible, and that all markings on Interstate highways shall be retroreflective. The proposed changes in the MUTCD would provide agencies the benefit of minimum retroreflective performance levels which are supported by research to make markings visible at night. Additionally, recent research findings indicate that maintenance of pavement marking retroreflectivity may have a positive effect on safety.

    The economic analysis provides a national estimate of the costs and benefits to implement this rulemaking and to replace markings. Costs for individual agencies would vary based on factors such as the amount of pavement marking mileage subject to the standards and current pavement marking practices. The analysis estimates first year start-up implementation costs of $29.4 million for all affected State and local agencies to develop maintenance methods and purchase necessary equipment. In addition, annual measurement and management activities of $14.9 million nationwide are expected to determine which markings require replacement. In the second and following years, if agencies were to replace markings that do not meet the minimum retroreflectivity levels, despite the fact that there are no replacement compliance dates there would be an estimated increase of approximately $52.5 million per year nationally from current estimated pavement marking replacement expenditures. Therefore, this proposed rule would not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year.

    The proposed changes in the MUTCD would provide additional guidance and clarification, while allowing flexibility in maintaining pavement marking retroreflectivity. The FHWA does not have enough information to determine the benefits of this document. The economic report summarizes findings from relevant research. The FHWA seeks comment on the issue.

    Background

    Pavement markings are one of the key methods of conveying information to the driver at night, conveying the location of the road center and edges, alignment information, presence of passing or no-passing zones, and indications that the driver is occupying the correct lane. The U.S. nighttime fatal crash rate is approximately three times that of the daytime crash rate, and safety studies 2 have shown that adding center line and edge line markings (or edge lines where only center lines were present) significantly reduces nighttime crashes. The MUTCD contains warrants indicating types of facilities that either shall or should have center line, edge line, or lane line markings. Therefore, FHWA has limited the proposed amendment to longitudinal markings to encompass center line, edge line, and lane line markings.

    2 The paper titled “The Benefits of Pavement Markings: A Renewed Perspective Based on Recent and Ongoing Research” can be viewed at the following Internet Web site: http://safety.fhwa.dot.gov/roadway_dept/night_visib/pavement_visib/no090488/.

    Per the MUTCD, markings that must be visible at night shall be retroreflective unless ambient illumination assures that the markings are adequately visible. All markings on Interstate highways shall be retroreflective. Retroreflectivity is the measure of an object's ability to reflect light back towards a light source along the same axis from which it strikes the object. In the case of retroreflective markings, incoming light from vehicle headlamps is reflected back towards the headlamps, and, more importantly, the driver's eyes, allowing the driver to see the pavement marking. Glass beads embedded in the marking material produces the retroreflective property of the pavement marking. The Coefficient of Retroreflected Luminance (RL), which is measured in millicandelas per meter squared per lux (mcd/m2/lx), is the most common measurement. Retroreflectometers used in the United States are based on CEN 3 -prescribed 30-meter geometry per ASTM Test Method E1710 4 .

    3 CEN is the European Committee for Standardization.

    4 ASTM E1710, “Standard Test Method for Measurement of Retroreflective Pavement Marking Materials with CEN-Prescribed Geometry Using a Portable Retroreflectometer”, is available through subscription or purchase at the following Internet Web site: http://www.astm.org/.

    Research has in some cases shown a correlation between increased retroreflectivity and reduced crashes, but has had limited success in quantifying that relationship. This is primarily due to the difficulty in what the level of retroreflectivity for the marking was at the time of a crash, along with the difficulty in accounting for other factors that may impact increases or reductions in crashes. Historically, agencies have not measured most of their pavement markings, and when they did it was typically to determine if newly installed markings met the standards of a contract. Once a pavement marking is installed, the retroreflectivity of the marking begins to degrade. The degradation rate is difficult to predict because some of the beads embedded in the marking become dislodged by traffic, obscured by dirt, or removed in snow plowing operations. In recent years, with mobile retroreflectometers available, a few agencies have more information on the level of retroreflectivity of their longitudinal pavement markings, including some information on markings that have been in place for some time. With this new data, agencies are better positioned to proactively manage their pavement markings.

    The FHWA sponsored research to establish recommended minimum pavement marking retroreflectivity levels that is based on the nighttime driving needs of drivers, including older drivers 5 . One of the key conditions considered in the research was that a minimum preview time 6 of 2.2 seconds was needed for nighttime drivers to safely navigate their vehicles. The research used updated visibility modeling techniques and tools to determine minimum retroreflectivity levels for a number of scenarios. The research scope was limited to dark, dry, rural, straight roads and longitudinal pavement markings. In addition, FHWA held workshops 7 to solicit input on potential standards for minimum pavement marking retroreflectivity.

    5 The report titled, “Updates to Research on Recommended Minimum Levels for Pavement Marking Retroreflectivity to Meet Driver Night Visibility Needs” can be viewed at the following Internet Web site: http://www.fhwa.dot.gov/publications/research/safety/07059/.

    6 Preview time describes the distance a driver must be able to see pavement markings down the road in order to receive adequate information to perceive, process, and react to the information to safely guide the vehicle. Since this distance increases as the speed of the vehicle increases, preview time is used to express this distance for any speed.

    7 The summary report titled: “Pavement Marking Retroreflectivity Workshops” can be viewed at the following Internet Web site: http://safety.fhwa.dot.gov/roadway_dept/night_visib/pavement_visib/fhwasa08003/fhwasa08003.pdf.

    On April 22, 2010, at 75 FR 20935, FHWA published in the Federal Register an NPA to amend the MUTCD to include standards, guidance, options, and supporting information related to maintaining minimum levels of retroreflectivity for pavement markings. The NPA was issued in response to Section 406 of the Department of Transportation and Related Agencies Appropriations Act, 1993 (Pub. L. 102-388; October 6, 1992). Section 406 of the Act directed the Secretary of Transportation to “revise the Manual on Uniform Traffic Control Devices to include—a standard for a minimum level of retroreflectivity that must be maintained for pavement markings and signs, which shall apply to all roads open to public travel.” Improving safety and mobility throughout the transportation network are two of the core goals of the DOT. This SNPA would propose minimum retroreflectivity levels in the MUTCD to advance safety and mobility by meeting the nighttime visibility needs of drivers on our Nation's roads and improving the infrastructure's ability to work with ITS technologies. The final rule for maintaining minimum levels of retroreflectivity for traffic signs was issued on December 21, 2007, at 72 FR 72574. The sign retroreflectivity final rule, and Revision 2 of the 2009 MUTCD 8 , requires agencies to implement and have continued use of an assessment or management method that is designed to maintain regulatory and warning sign retroreflectivity at or above the established minimum levels. This proposed rule addresses driver visibility needs in terms of pavement markings. The FHWA used knowledge it gained through the sign retroreflectivity rulemaking process to prepare the NPA, as well as this SNPA, for maintaining pavement marking retroreflectivity. This includes simplifying the minimum retroreflectivity levels, requiring the use of a method to maintain minimum retroreflectivity, and clarifying the types of longitudinal lines for which this proposed rule applies.

    8 Revision 2 of the 2009 MUTCD, 77 FR 28460 (May 14, 2012), revised certain information relating to target compliance dates for traffic control devices. It can be viewed at the following Internet Web site: https://www.thefederalregister.org/fdsys/pkg/FR-2012-05-14/pdf/2012-11710.pdf.

    Since publishing the NPA, the need for improved pavement markings has become more apparent in relation to advanced driver assistance systems (ADAS) in vehicles. Numerous manufacturers have ADAS that include lane departure warning systems that use camera sensors to detect pavement markings to monitor the position of the vehicle. Automakers, suppliers, and research institutes have indicated in interviews that maintenance of pavement markings will be necessary to support vehicle automation. Michael J. Robinson of General Motors testified before the House Committee on Transportation and Infrastructure Subcommittee on Highway and Transit that, “one of the key highway needs is to provide—at a minimum—clearly marked lanes and shoulders.” 9 In the same hearing, former NHTSA Administrator Strickland spoke of how the autonomous vehicle will advance safety and specifically mentioned FHWA's efforts to improve the infrastructure to “interact with and support automated or partially automated vehicles.” 10 More recently, the American Association of State Highway and Transportation Officials (AASHTO) and SAE International (formerly the Society of Automotive Engineers) have formed a joint task force to develop a specification that includes criteria for road markings for vehicle cameras that detect and use lane markings for features such as Lane Departure Warning (LDW) and Lane Keeping Assist (LKA). The joint task force will use the information from National Cooperative Highway Research Program (NCHRP) 20-102(06), Road Markings for Machine Vision as a basis.11

    9 Testimony of Michael J. Robinson, Vice President, Sustainability and Global Regulatory Affairs, before the House Committee on Transportation and Infrastructure Subcommittee on Highways and Transit, Hearing on How Autonomous Vehicles will Shape the Future of Surface Transportation, November 19, 2013 http://transportation.house.gov/uploadedfiles/2013-11-19-robinson.pdf.

    10 Testimony of The Honorable David L. Strickland, Administrator, National Highways Traffic Safety Administration, before the House Committee on Transportation and Infrastructure Subcommittee on Highways and Transit, Hearing on How Autonomous Vehicles will Shape the Future of Surface Transportation, November 19, 2013. http://transportation.house.gov/uploadedfiles/2013-11-19-strickland.pdf.

    11 More information regarding the scope and status of NCHRP 20-102 (06), Road Markings for Machine Vision is available at the following Internet Web site: http://apps.trb.org/cmsfeed/TRBNetProjectDisplay.asp?ProjectID=4004.

    The comment period for the NPA related to pavement marking retroreflectivity closed on August 20, 2010. The FHWA received approximately 100 responses that were submitted to the docket containing nearly 700 individual comments on the NPA. The FHWA received comments from the National Committee on Uniform Traffic Control Devices (NCUTCD), AASHTO, State departments of transportation (State DOTs), the National Association of County Engineers (NACE), the American Traffic Safety Services Association (ATSSA), Advocates for Highway and Auto Safety (AHAS), the American Association of Retired Persons (AARP), city and county governmental agencies, consulting firms, private industry, associations, other organizations, and individual private citizens. The FHWA has reviewed and analyzed the comments that were received in preparing this SNPA.

    State and local DOTs, as well as associations that represent them, submitted many comments expressing concern over key elements of the MUTCD language as proposed in the NPA. The commenters expressed confusion about which pavement markings would be required to meet minimum retroreflectivity values and concern over compliance dates for replacing deficient markings, the proposed minimum retroreflectivity levels, cost, and liability. Organizations comprised of safety advocates and some industry suppliers of pavement markings submitted comments suggesting that the NPA did not go far enough in establishing retroreflectivity standards. In consideration of all the comments, FHWA desires to simplify the proposed MUTCD language to provide clarity while improving safety and minimizing the financial burden and potential liability concerns expressed by the commenters, particularly local agencies responsible for maintaining pavement markings. The FHWA also has a responsibility to meet the congressional intent of Section 406 of the Department of Transportation and Related Agencies Appropriations Act as discussed above, with an appreciation for economic impact.

    The AASHTO and NACE requested delaying the final rule for pavement marking retroreflectivity until AASHTO's Subcommittee on Traffic Engineering funds and completes a proposed research project intended to provide a synthesis of pavement marking retroreflectivity maintenance practices. The organizations and many of their members felt this project would produce actual measurement of in-service pavement marking retroreflectivity levels to compare with the minimum values proposed by FHWA. The project was completed under NCHRP Project 20-07 Task 310. The findings were published January 2013 in a report titled, “Determination of Current Levels of Retroreflectance Attained and Maintained by State Departments of Transportation.” 12

    12 The report titled, “Determination of Current Levels of Retroreflectance Attained and Maintained by State Departments of Transportation,” can be viewed at the following Internet Web site: http://onlinepubs.trb.org/onlinepubs/nchrp/docs/NCHRP20-07(310)_FR.pdf.

    In the NPA, it was noted that the proposed revisions regarding maintaining pavement marking retroreflectivity would be designated as Revision 1 to the 2009 edition of the MUTCD. Actual designation of revision numbers depends on the relative timing of final rules issued by FHWA related to the MUTCD.

    As a result of the comments received in response to the NPA, FHWA concluded that significant changes to the proposed MUTCD language are warranted. As a result, FHWA is issuing this SNPA to provide the opportunity for public review and comment on the revised proposal. Docket comments and summaries of the FHWA's analyses and determinations are discussed below.

    Proposed Supplemental Amendment

    In this SNPA, FHWA proposes to continue with the following key concepts from the NPA:

    • Implementation and continued use of a method that is designed to maintain pavement markings at or above specific minimum retroreflectivity levels would be the key factor indicating compliance with this section of the MUTCD.

    • The minimum retroreflectivity levels would apply only to longitudinal pavement markings under dry conditions, specifically center lines, edge lines and lane lines.

    • The method would not be required to include markings on roads with statutory or posted speed limits under 35 mph.

    • Markings that are adequately visible due to ambient illumination may be excluded from the method.

    • Acknowledges that there may be some locations or certain periods of time where markings may be below the minimum retroreflectivity levels.

    The FHWA proposes the following key changes from the language proposed in the April, 2010, NPA:

    • Remove the compliance date for replacing markings;

    • Simplify conditions so there are only two retroreflectivity values (one being a STANDARD and one being GUIDANCE) that are based on posted speed limit only, and apply to both white and yellow longitudinal pavement markings;

    • Simplify the STANDARD to one minimum retroreflectivity level of 50 mcd/m2/lx that applies to roads with statutory or posted speeds of 35 mph and greater;

    • Change the requirement for high-speed roadways from a STANDARD to GUIDANCE, and condense the various minimum retroreflectivity levels to one minimum retroreflectivity level of 100 mcd/m2/lx;

    • Add an OPTION for agencies to exclude roadways with volumes less than 6,000 vehicles per day (vpd) from the application of their methods to maintain retroreflectivity; and

    • Remove the exception for roadways with raised reflective pavement markers (RRPMs).

    An analysis of the comments and the resulting proposed changes are discussed in more detail in the following sections.

    The definitions of the MUTCD Section 1A.13 are used here, particularly in reference to the terms STANDARD, GUIDANCE, OPTION, and SUPPORT. A STANDARD refers to a required, mandatory or specifically prohibitive practice regarding a traffic control device. STANDARD statements are sometimes modified by an OPTION statement. GUIDANCE denotes a recommended, but not mandatory, practice in typical situations, with deviations allowed if engineering judgment or an engineering study indicates the deviation to be appropriate. An OPTION states a practice that is a permissive condition and may contain allowable modifications to a STANDARD or GUIDANCE statement while SUPPORT statements simply convey information.

    This SNPA is being issued to provide an opportunity for public comment on these proposed amendments to the MUTCD. The FHWA requests comments on the proposed amendments to the MUTCD that are presented in this SNPA. After reviewing the comments received in response to the NPA and this SNPA, FHWA may issue a final rule concerning the proposed changes included in this document. In order to enable FHWA to appropriately review and address all comments, commenters should cite the Section and paragraph number of the proposed MUTCD text for each specific comment to the docket.

    Section-by-Section Analysis

    This section-by-section analysis includes a discussion of the proposed SNPA language and an analysis of the comments submitted to the NPA docket. Since Section 3A.03 contains the majority of the material specifically related to maintaining pavement marking retroreflectivity, that section is described first, followed by proposed changes to Section 1A.11 and the Introduction.

    Section 3A.03 Maintaining Minimum Pavement Marking Retroreflectivity

    1. The FHWA proposes to change the current section title to “Maintaining Minimum Retroreflectivity” to simplify the title and be consistent with the title for Sign Retroreflectivity in Section 2A.08 of the 2009 MUTCD.

    2. The FHWA has revised the organization and content of the STANDARD statement from what was proposed in the NPA. Many commenters indicated there was confusion regarding which markings were included in the minimum retroreflectivity requirements and which minimum retroreflectivity values applied under specific roadway marking conditions. To reduce confusion, FHWA proposes to base the minimum pavement marking retroreflectivity values only on posted speed limits, rather than a combination of posted speed and type of roadway marking pattern as proposed in Table 3A-1 of the NPA. In conjunction with this change, FHWA proposes to refrain from incorporating a table such as the NPA's Table 3A-1 and instead simplify the requirement for maintaining pavement marking retroreflectivity by including the retroreflectivity values in the text. The proposed retroreflectivity values apply to both white and yellow pavement markings.

    3. In the STANDARD statement, paragraph 1, FHWA proposes that a method designed to maintain retroreflectivity at or above 50 mcd/m2/lx shall be used for longitudinal markings on roadways with statutory or posted speed limits of 35 mph or greater. The proposed STANDARD is a minimum level intended to meet driver visibility needs. Many agencies currently have goals to achieve higher initial levels of retroreflectivity based on driver preferences and other factors. There are also a few agencies with goals to maintain higher levels. This rulemaking should not be misconstrued as a recommendation to lower these goals, but rather to encourage all agencies to replace or retrace markings before they reach this bare minimum level. This should result in markings that are typically well above these retroreflectivity levels throughout their useful life. As in the NPA, this STANDARD applies only to longitudinal markings. Information regarding markings that may be excluded and clarification on markings to which this STANDARD does not apply are described in paragraphs 5 and 6 of the proposed MUTCD text.

    The 50 mcd/m2/lx requirement proposed for the STANDARD is based on research on pavement marking retroreflectivity requirements documented in publication FHWA-HRT-07-059, “Updates to Research on Recommended Minimum Levels for Pavement Marking Retroreflectivity to Meet Driver Night Visibility Needs.” 13 In this report, fully marked roadways (those having edge lines, center lines, and lane lines, as needed) were identified as requiring retroreflectivity levels of 40 mcd/m2/lx for speeds of 50 mph and lower and 60 mcd/m2/lx for speeds of 55 to 65 mph. One of the key conditions considered in the research was that a minimum preview time of 2.2 seconds was needed for nighttime drivers to safely navigate their vehicles. The value of 50 mcd/m2/lx is also one of the minimum retroreflectivity values proposed in the NPA.

    13 The report titled, “Updates to Research on Recommended Minimum Levels for Pavement Marking Retroreflectivity to Meet Driver Night Visibility Needs” can be viewed at the following Internet Web site: http://www.fhwa.dot.gov/publications/research/safety/07059/.

    The FHWA received comments from NCUTCD, AASHTO, NACE and several State and local agencies opposed to the higher retroreflectivity values presented in the NPA. Some of those commenters suggested alternate minimum retroreflectivity values that ranged from 50 to 150 mcd/m2/lx, depending on the pavement marking configuration and posted speed limit. The FHWA received comments from ATSSA, AARP, and AHAS suggesting higher retroreflectivity values than proposed in the NPA and suggesting that minimum retroreflectivity values for roads with posted speed limits less than 35 mph should also be established. Specific comments referred to studies indicating that drivers prefer pavement markings with a range of 80 to 130 mcd/m2/lx. The proposed minimum level of 50 mcd/m2/lx was selected based on driver needs derived from a requirement of 2.2 second preview time, rather than public attitude surveys. This minimum will improve the retroreflectivity of markings in jurisdictions where pavement markings are not currently being adequately maintained, without placing an undue burden on agencies that choose to maintain markings at higher levels.

    The FHWA also believes that establishing one retroreflectivity value as a STANDARD, rather than several values, will facilitate implementation of this proposed rule. In terms of roadways with posted speed limits of less than 35 mph, FHWA received comments from NACE and 26 local agencies supporting FHWA's proposal that the minimum levels not apply to roads with posted speeds of less than 35 mph; whereas, AHAS and ATSSA questioned whether the FHWA was meeting the congressional intent by not requiring the method to apply to these roads. The FHWA believes there would be little benefit in requiring agencies to implement a method to maintain a specific minimum retroreflectivity level of markings on these roads because properly working vehicle headlamps typically provide adequate preview distance of the road itself for the short preview distance needed at these speeds. Therefore, the level of retroreflectivity of the pavement markings is not as critical at these lower speeds.

    4. In the GUIDANCE statement, paragraph 2, FHWA proposes that a method designed to maintain retroreflectivity at or above 100 mcd/m2/lx should be used for longitudinal markings on roadways with statutory or posted speed limits of 70 mph or greater. The GUIDANCE statement is included to encourage higher retroreflectivity levels for roadways with higher speeds. This is based on a preview time of 2.2 seconds, indicating drivers need longer viewing distances on higher speed roadways, which can be achieved by maintaining a higher level of retroreflective pavement markings. The 100 mcd/m2/lx level is based on research of pavement marking retroreflectivity requirements documented in publication FHWA-HRT-07-059, “Updates to Research on Recommended Minimum Levels for Pavement Marking Retroreflectivity to Meet Driver Night Visibility Needs.” 14

    14 The report titled, “Updates to Research on Recommended Minimum Levels for Pavement Marking Retroreflectivity to Meet Driver Night Visibility Needs” can be viewed at the following Internet Web site: http://www.fhwa.dot.gov/publications/research/safety/07059/.

    In Table 3A-1 of the NPA, FHWA also proposed separate minimum retroreflectivity values for two-lane roads with only center line markings. These separate minimum values were included to address driver needs for higher retroreflective center lines on facilities without edge lines. Based on the comments from agencies and their associations, this was one of the areas that caused confusion. Since this SNPA provides agencies with the option to exclude roadways with Annual Daily Traffic (ADT) less than 6,000 vpd from their method (for reasons explained in item 8 below), and edge lines are required on rural arterials with an ADT of 6,000 vpd or greater and recommended for rural arterials and collectors with an ADT of 3,000 or greater, FHWA believes it is not necessary to include a higher minimum retroreflectivity level on two-lane roads with center lines only.

    The NPA proposed minimum retroreflectivity value of 250 mcd/m2/lx for two-lane roads with only center line markings and speeds of 55 mph or higher was particularly controversial. The FHWA received comments from AASHTO, NCUTCD, NACE, as well as several State DOTs suggesting that it was not feasible with existing technologies to maintain a retroreflectivity level of 250 mcd/m2/lx. The AASHTO and nine State DOTs suggested reducing this value to 100 mcd/m2/lx; whereas, the NCUTCD and NACE suggested a value of 150 mcd/m2/lx. Typical State requirements for yellow pavement markings are less than 250 mcd/m2/lx due to the difficulty in achieving and sustaining this level of retroreflectivity with most available yellow marking materials. It is the intent of this GUIDANCE statement to encourage agencies to improve pavement marking conditions, and not to require public agencies to meet levels that would be impractical to maintain with existing technologies. In consideration of the factors discussed above, FHWA proposes that a value of 100 mcd/m2/lx or above should be maintained for longitudinal markings on all roadways with posted speed limits of 70 mph or greater, regardless of the roadway pavement marking configuration.

    5. The FHWA proposes to delete Table 3A-1 that was included in the NPA because of the proposed simplified retroreflectivity values contained in Section 3A.03, paragraphs 1 and 2 of the MUTCD. Table 3A-1, as proposed in the NPA, included two exceptions to maintaining minimum pavement marking retroreflectivity. One exception provided that minimum retroreflectivity levels were not applicable to pavement markings on roadways with properly maintained RRPMs. Although this provision was supported by NCUTCD, AASHTO, and NACE, other organizations such as ATSSA, 3M, and AARP suggested that the use of RRPMs should not result in an exception to the required minimum retroreflectivity levels because there are no performance requirements for RRPMs.

    After reviewing available research and considering the intended use and durability of RRPMs, FHWA proposes to delete the exception for roadways with RRPMs. The research conducted for pavement marking retroreflectivity indicates that even with RRPMs, a pavement marking retroreflectivity level of 40 to 50 mcd/m2/lx is still needed for peripheral-vision lane keeping tasks.15 This level of retroreflectivity is consistent with the proposed SNPA language that requires an agency to maintain retroreflectivity at 50 mcd/m2/lx, rather than the higher values proposed in the NPA. If the exclusion for roadways with RRPMs were to remain, additional parameters would need to be considered. This would include parameters such as a minimum level of retroreflectivity for the RRPMs (for which there is currently insufficient research), spacing requirements (which varies in the MUTCD in accordance with the application), and maintenance requirements to replace missing or damaged devices. Setting such parameters for RRPMs is outside the scope of this rulemaking. Finally, the research 16 is based on dry pavement marking retroreflectivity. The RRPMs are commonly used to enhance wet nighttime delineation, which further indicates that RRPMs fall outside of the scope of this rulemaking effort. In reviewing this information, along with the comments submitted to the docket, it became clear that providing an exclusion for roadways with RRPMs introduced a level of unintended complexity to the proposed rule, and therefore FHWA does not propose an exclusion for roadways with RRPMs in the SNPA.

    15 The report titled, “Updates to Research on Recommended Minimum Levels for Pavement Marking Retroreflectivity to Meet Driver Night Visibility Needs” can be viewed at the following Internet Web site: http://www.fhwa.dot.gov/publications/research/safety/07059/.

    16 Ibid.

    Although not included as an exception in the NPA, NCUTCD, AASHTO, NACE, nine State DOTs and a consultant suggested adding an exception for roadways with post-mounted delineators for the same reason that roads with RRPMs were excluded in the NPA. The commenters felt that roadside post‐mounted delineators have greater target value when compared to RRPMs, and are easily replaced, in most cases, without obstructing the traffic lanes. The commenters suggested that delineators are also used in snow and winter conditions and provide added visibility of the roadway geometry. While FHWA believes that roadside delineators are a valuable traffic control device, they are placed on the side of the road at varying distances from the outside edge of the travel lane and do not provide the same level of lane delineation as pavement markings. As a result, FHWA does not propose an exclusion for roadways with delineators. As discussed above in regard to RRPMs, such an exclusion would introduce an unnecessary level of complexity and is outside the scope of this rulemaking.

    The FHWA retains the proposed exclusion for roadways where ambient illumination assures that the pavement markings are visible. The FHWA believes that it is appropriate to maintain this exclusion in order to provide consistency with existing paragraph 3 of Section 3A.02 of the 2009 MUTCD which states, “Markings that must be visible at night shall be retroreflective unless ambient illumination assures that the markings are adequately visible.” 17 Additional information regarding this exclusion, including a discussion of the comments, is included in item 8 of this document.

    17 The 2009 MUTCD can be viewed at the following Internet Web site: http://mutcd.fhwa.dot.gov.

    6. The FHWA proposes in paragraph 3, GUIDANCE, to recommend that the method used to maintain retroreflectivity should be one or more of those described in a separate document titled, “Methods for Maintaining Pavement Marking Retroreflectivity” or developed from an engineering study based on the minimum retroreflectivity values in Paragraphs 1 and 2. A draft version of this document is available in the docket. In the NPA, FHWA proposed to include short descriptions of the recommended methods. However, FHWA believes more details are needed to fully describe the intent of the methods and to avoid misinterpretation. In an effort to simplify the MUTCD, FHWA believes it is more appropriate to refer MUTCD users to this supplemental document rather than trying to briefly summarize it in the MUTCD. An added benefit to this approach is that this document, which will be available on FHWA's Web site, will include detailed guidance on how to use the methods and inform agencies that other methods can be developed if they are tied to the minimum retroreflectivity levels through an engineering study. In addition to containing information describing the acceptable methods, this document also includes information about methods that are not acceptable for maintaining minimum pavement marking retroreflectivity because they cannot be tied to the minimum retroreflectivity levels, along with recommendations of items to consider and include in an agency's documentation of its method. The FHWA believes that by providing all of the pertinent information related to the methods to maintain pavement marking retroreflectivity in one place, users are more likely to obtain complete information and therefore make more informed decisions about the method(s) they use for maintaining minimum pavement marking retroreflectivity.

    7. In paragraph 4, SUPPORT, the FHWA proposes to indicate that retroreflectivity levels for pavement marking are measured at an entrance angle of 88.76 degrees and an observation angle of 1.05 degrees, also referred to as 30-meter geometry, and that the units are reported in mcd/m2/lx. The FHWA proposes to add this statement to capture these specifics regarding measurement and associated units of pavement marking retroreflectivity that were included as a note in Table 3A-1 of the NPA. For the reasons discussed in item 5 of this document, the FHWA proposes to delete Table 3A-1 in the SNPA, but this pertinent information is still needed, so the FHWA proposes this SUPPORT statement to retain the information.

    8. In paragraph 5, OPTION, FHWA proposes to list several types of pavement markings that agencies may exclude from their method to maintain minimum pavement marking retroreflectivity. The pavement markings excluded from an agency's method under this OPTION are still required to be retroreflective unless otherwise excluded under MUTCD Section 3A.02. Items C through F of this OPTION statement refer to specific types of markings and remain unchanged from the NPA. Those types of markings are as follows: dotted extension lines (extending a longitudinal line through an intersection, major driveway or interchange area), curb markings, parking space markings, and shared-use path markings. These markings are effectively optional, and additional research would be needed to support establishment of minimum retroreflectivity levels for these markings.

    In item A of this OPTION, FHWA proposes an exclusion for markings where ambient illumination assures that the markings are adequately visible. The FHWA proposes to relocate and reword this text from what appeared in the NPA to clarify its meaning. In Table 3A-1 of the NPA, FHWA included an exception for markings on roadways where continuous roadway lighting assures that the markings are visible. Since FHWA deleted Table 3A-1 from the SNPA, it is more appropriate to list this exclusion in proposed paragraph 5. The FHWA also proposes to use text in the OPTION statement that more closely matches the existing text in Section 3A.02, paragraph 3. Existing paragraph 3 of Section 3A.02 of the 2009 MUTCD also includes the statement, “All markings on Interstate highways shall be retroreflective.” Therefore, Interstate markings that are adequately visible due to lighting do not need to meet the minimum levels nor be included in an agency's method, but they do need to be retroreflective. Although NCUTCD, AASHTO, and NACE supported an exception for lighting in the NPA, AARP and a supplier suggested that the exception for roadways with roadway lighting would undermine the safety benefits of the proposed amendments. The FHWA proposes to retain the exclusion for lighting to provide agencies with the flexibility to illuminate roadways without the added burden of implementing a method for maintaining pavement marking retroreflectivity.

    In item B of this OPTION, FHWA proposes to allow agencies the option to exclude markings on roadways with ADTs less than 6,000 vpd from their method. This change is in response to comments on the approach used in the NPA, which was based on the MUTCD warrants for longitudinal pavement markings. The warrants are based on roadway characteristics such as traffic volume, functional class, and pavement width. Pavement markings not included by these warrants were excluded from the method in the NPA, although the comments indicated this was not clear. The exclusion provided in item B, based solely on traffic volume, substitutes for the more complex exclusion based on warrants proposed in the NPA. This responds specifically to comments FHWA received from 2 local agencies and one road commission representing over 80 local agencies suggesting that low volume roads be excluded from meeting minimum pavement marking retroreflectivity values. The commenters' definition of “low volume” ranged from 3,000 to 6,000 vpd. The exclusion also responds to many comments that optional markings (those neither required nor recommended by the warrants) should be excluded from the method. The AHAS and two suppliers commented that these optional marking should not be excluded.

    Another complicating factor in the NPA approach is that the MUTCD warrants require certain pavement markings under specific roadway conditions and recommend certain pavement markings under other roadway conditions. The FHWA received comments from NCUTCD, AASHTO, NACE, and over 40 State and local agencies pertaining to whether the standard should include only those pavement markings required in the MUTCD, or a combination of required and recommended pavement markings, as was proposed in the NPA. Some State and local DOTs suggested that if there were a requirement to maintain retroreflectivity on pavement markings that were only recommended (by means of a GUIDANCE statement) and not required, then their agency might elect not to install such recommended markings.

    The FHWA conducted a thorough review of the MUTCD language related to required, recommended, and optional markings and determined that using a specific volume of traffic for the exclusion would be considerably easier for agencies to understand and implement than use of the warrants. By removing functional class and pavement width from the determination of whether a pavement marking is included in the method, the only consideration is the appropriate volume threshold to select. Because a volume of 6,000 vpd is the threshold above which a center line is required on an urban arterial and collector road (see Section 3B.02, paragraph 9) and the threshold above which rural arterials are required to have edge lines (see Section 3B.07, paragraph 1), FHWA believes that it is appropriate to establish 6,000 vpd as the volume above which a method for maintaining pavement marking retroreflectivity applies. The FHWA believes this is consistent with its goal of simplifying the language while meeting congressional intent and appreciating agency's resource concern. Because this is proposed as an OPTION statement, agencies could choose to include roadways with less than 6,000 vpd in their methods for maintaining minimum pavement marking retroreflectivity, as resources allow.

    The NPA excluded additional markings that are generally not classified as longitudinal markings. Due to the reformatting of the MUTCD text in this SNPA, those markings are now addressed in a separate proposed SUPPORT statement, paragraph 6. A discussion of those markings and related comments appears in item 9 below.

    9. The FHWA proposes a SUPPORT statement, paragraph 6, to clarify that the provisions of proposed Section 3A.03 do not apply to non-longitudinal pavement markings, and to specifically list several non-longitudinal types of pavement markings that are excluded from this proposed rule. The following markings, which are the same as those presented in the NPA, would be listed in paragraph 6: transverse markings, words, symbol, and arrow markings, crosswalk markings, and chevron, diagonal, and crosshatch markings. The MUTCD does not require the use of these markings, so there is a concern that same agencies may choose to discontinue their use if minimum levels of retroreflectivity are established. The ATSSA, AARP, a State DOT, and a supplier disagreed with allowing agencies to exclude pavement markings such as, words, symbols, and arrows, crosswalks, railroad crossing markings, etc., because the commenters felt that these markings are important. Other than longitudinal markings, there are few markings required by the MUTCD. There is a concern that establishing minimum retroreflectivity levels for markings that are not required may result in some agencies choosing to discontinue their use. In addition, these markings are excluded because the existing body of research does not cover the retroreflectivity needs of drivers for non-longitudinal markings.

    10. The FHWA proposes a SUPPORT statement, paragraph 7, that acknowledges that special circumstances will periodically cause pavement marking retroreflectivity to be below the minimum retroreflectivity levels. The FHWA proposed similar information in paragraphs 2 and 3 of the NPA. The FHWA received comments from NCUTCD, AASHTO, NACE, ATSSA, and more than 40 State and local agencies suggesting that the language be changed from a SUPPORT statement to a STANDARD statement to further assist them in potential liability defense, especially in light of the 2009 MUTCD language regarding the terms “standard” and “engineering judgment.” 18 Due to the issuance of Revision 1 of the 2009 MUTCD, FHWA believes that it is appropriate to retain this language as a SUPPORT statement. Within this SUPPORT statement, paragraph 7, FHWA proposes text that describes some of the occurrences that may cause pavement markings to periodically be below the minimum retroreflectivity levels. The items included in this statement are similar to those contained in paragraph 3 of the NPA, but are expanded to clarify additional circumstances in response to comments.

    18 Revision 1 of the 2009 MUTCD was issued in May 2012 to address many of these concerns, well after the pavement marking retroreflectivity NPA was published in April 2010. The Revision 1 final rule is available at: http://www.thefederalregister.org/fdsys/pkg/FR-2012-05-14/html/2012-11712.htm.

    The FHWA proposes to add item A, isolated locations of abnormal degradation, to the list to address comments from NCUTCD and AASHTO suggesting that this item be added. The FHWA agrees that there may be isolated locations where pavement markings experience abnormal wear or degradation due to adjacent land uses or types of vehicles using the roadway, and that it is impractical to expect retroreflectivity levels to be continuously maintained at or above minimum levels at such locations.

    The FHWA proposes to rephrase the text regarding pavement resurfacing, item B, to better explain that this rule is not intended to apply during periods preceding imminent resurfacing or reconstruction. The FHWA does not believe that it is a cost effective use of labor and materials to re-apply pavement markings immediately prior to resurfacing, rehabilitating or reconstructing a roadway.

    In item C, FHWA proposes to include unanticipated events such as equipment breakdowns, material shortages, contracting problems, and other similar conditions to this listing. Although not included in the NPA, FHWA proposes to add these items based on comments from State and local agencies suggesting that these unanticipated events can and do occur. For example, in 2010 there was a global shortage of certain types of pavement marking materials. In addition, it is possible that a pavement marking contract could fall behind schedule if equipment malfunctions unexpectedly or if there is a problem with a contract. The FHWA believes that including such a provision is appropriate, because it is possible that unanticipated events beyond an agency's control may contribute to markings falling below the minimum levels.

    Finally, FHWA proposes to add item D to address the loss of retroreflectivity due to snow maintenance operations. Snow maintenance operations include plowing as well as applying materials to roadway surfaces that may negatively impact pavement marking retroreflectivity. The AASHTO and 20 State and local DOTs, particularly those in northern tier States, expressed concern with maintaining prescribed retroreflectivity levels during the winter months. The commenters indicated that roadway maintenance activities such as snow plowing and placement of traction sand degrades the pavement markings at such time when replacement of the markings is impossible. Although the revised minimum levels of this SNPA should mitigate this concern, the results of NCHRP Project 20-07 indicate maintaining pavement marking retroreflectivity during winter months will continue to be a problem for at least some agencies in many snow belt States. The FHWA agrees with the stated concern and proposes to add this item to address the difficulty associated with maintaining pavement marking retroreflectivity during winter maintenance operations. While this is a more recurring type of retroreflectivity maintenance issue than those listed in items A through C, the schedule to restore markings is based largely on the weather in a particular year and can vary significantly by region.

    Following the list of items, FHWA proposes to indicate that when these circumstances occur, compliance with Paragraphs 1 and 2 is achieved if a reasonable course of action is taken to restore such markings in a timely manner. The FHWA proposes this revised statement following the list of examples to clarify that compliance with the minimum pavement marking retroreflectivity levels may take such factors into consideration. The FHWA realizes that when such circumstances occur, agencies will need to schedule their resources and priorities in order to restore the pavement markings. The FHWA's intent is for agencies take an appropriate course of action in a timely manner.

    Section 1A.11 Relation to Other Publications

    11. The FHWA proposes to add a new publication titled, “Methods for Maintaining Pavement Marking Retroreflectivity” to the list of other publications that are useful sources. A draft version of this document is available in the docket. This draft publication is a supplemental document for informational purposes. The final version of this document will reflect any changes made to this proposed rule and will be published and distributed by FHWA. In the NPA, FHWA proposed to reference a summary of this report instead. The FHWA has reconsidered the intent and resulting content of this supplemental document, and proposes to reference this document which contains more information about the methods to be used for maintaining pavement marking retroreflectivity than can be adequately described in the MUTCD text or a summary document. Several State and local DOTs submitted specific questions and comments to the docket related to the methods as described in the proposed MUTCD text. Because FHWA proposes to simplify the MUTCD language in the SNPA, FHWA believes it is appropriate to reference a supplemental document that would be easily accessible on FHWA's Web site and would provide detailed guidance on how to implement the methods, rather than to provide partial information in the MUTCD text. See item 6 of this document for more information about the proposed publication “Methods for Maintaining Pavement Marking Retroreflectivity.”

    Introduction

    In the Introduction, FHWA proposes to add to Table I-2 Target Compliance Dates Established by FHWA, a compliance date for new Section 3A.03 Maintaining Minimum Retroreflectivity. The FHWA proposes a compliance period of 4 years from the effective date of the Final Rule for this revision of the MUTCD for implementation and continued use of a method that is designed to maintain retroreflectivity of longitudinal pavement markings, and refers the reader to Paragraph 1. This proposed 4-year compliance period is similar to that proposed in the NPA. In the NPA, FHWA also proposed to include a compliance period for replacing markings that were found to be deficient by the agency's method for maintaining minimum pavement marking retroreflectivity. While ATSSA agreed with the compliance periods, the NCUTCD, AASHTO, NACE, members of those organizations, and two local agencies agreed with establishing a 4-year compliance period for establishing and using a method to maintain pavement marking retroreflectivity, but did not support a compliance date for replacing deficient markings. The FHWA believes that a 4-year compliance period for establishing and implementing such a method is appropriate; however, FHWA is no longer seeking to establish compliance dates for replacement of deficient markings as this should be established by agencies pursuant to their methods. This is consistent with Revision 2 of the 2009 MUTCD in regard to Minimum Retroreflectivity compliance dates for Traffic Signs. Without specific compliance dates in the MUTCD for replacing deficient markings, agencies would still need to replace or remark pavement markings they identify as not meeting the established minimum retroreflectivity values, but each agency would be allowed to establish a schedule for replacement based on resources and relative priorities. Agencies would need to establish their replacement schedules using the same level of consideration as they would any other engineering decision regarding maintenance of traffic control devices.

    In consideration of the foregoing, FHWA proposes to revise the 2009 MUTCD text as follows:

    Add a row to Table I-2 Target Compliance Dates Established by FHWA:

    2009 MUTCD section Nos. 2009 MUTCD section title Specific provision Compliance date 3A.03 Maintaining Minimum Retroreflectivity Implementation and continued use of a method that is designed to maintain retroreflectivity of longitudinal pavement markings (see Paragraph 1) 4 years from the effective date of this revision of the MUTCD

    Add new reference document to Section 1A.11 Relation to Other Publications: Section 1A.11

    “Methods for Maintaining Pavement Marking Retroreflectivity,” Report No. FHWA-SA-14-017 (FHWA)

    Revise Section 3A.03 as follows:

    Section 3A.03 Maintaining Minimum Retroreflectivity

    Standard

    01 Except as provided in Paragraph 5, a method designed to maintain retroreflectivity at or above 50 mcd/m2/lx shall be used for longitudinal markings on roadways with statutory or posted speed limits of 35 mph or greater.

    Guidance

    02 Except as provided in Paragraph 5, a method designed to maintain retroreflectivity at or above 100 mcd/m2/lx should be used for longitudinal markings on roadways with statutory or posted speed limits of 70 mph or greater.

    03 The method used to maintain retroreflectivity should be one or more of those described in “Methods for Maintaining Pavement Marking Retroreflectivity” (see Section 1A.11) or developed from an engineering study based on the values in Paragraphs 1 and 2.

    Support

    04 Retroreflectivity levels for pavement markings are measured with an entrance angle of 88.76 degrees and an observation angle of 1.05 degrees. This geometry is also referred to as 30-meter geometry. The units of pavement marking retroreflectivity are reported in mcd/m2/lx, which means millicandelas per square meter per lux.

    Option

    05 The following markings may be excluded from the provisions established in Paragraphs 1 and 2:

    A. Markings where ambient illumination assures that the markings are adequately visible;

    B. Markings on roadways that have an ADT of less than 6,000 vehicles per day;

    C. Dotted extension lines that extend a longitudinal line through an intersection, major driveway, or interchange area (see Section 3B.08);

    D. Curb markings;

    E. Parking space markings; and

    F. Shared-use path markings.

    Support

    06 The provisions of this Section do not apply to non-longitudinal pavement markings including, but not limited to, the following:

    A. Transverse markings;

    B. Word, symbol, and arrow markings;

    C. Crosswalk markings; and

    D. Chevron, diagonal, and crosshatch markings.

    07 Special circumstances will periodically cause pavement marking retroreflectivity to be below the minimum levels. These circumstances include, but are not limited to, the following:

    A. Isolated locations of abnormal degradation;

    B. Periods preceding imminent resurfacing or reconstruction;

    C. Unanticipated events such as equipment breakdowns, material shortages, contracting problems, and other similar conditions; and

    D. Loss of retroreflectivity resulting from snow maintenance operations.

    When such circumstances occur, compliance with Paragraphs 1 and 2 is still considered to be achieved if a reasonable course of action is taken to restore such markings in a timely manner.

    Rulemaking Analyses and Notices

    All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination using the docket number appearing at the top of this document in the docket room at the above address. The FHWA will file comments received after the comment closing date and will consider late comments to the extent practicable. In addition, FHWA will also continue to file in the docket relevant information becoming available after the comment closing date, and interested persons should continue to examine the docket for new material.

    Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulations and Regulatory Review), and DOT Regulatory Policies and Procedures

    The FHWA has determined that this action would be a significant regulatory action within the meaning of Executive Order 12866 and within the meaning of DOT regulatory policies and procedures because of the significant public interest in the MUTCD. Additionally, this action complies with the principles of Executive Order 13563. The FHWA has considered the costs and potential benefits of this rulemaking and believes the rulemaking is being implemented in a manner that fulfills our obligation under Section 406 of the Department of Transportation and Related Agencies Appropriations Act, 1993 (Pub. L. 102-388; October 6, 1992) and provides flexibility for agencies. The estimated national costs are documented in the updated economic analysis report, which is available as a separate document under the docket number noted in the title of this document at http://www.regulations.gov. The flexibility is documented in the new publication titled, “Methods for Maintaining Pavement Marking Retroreflectivity,” to which the MUTCD refers readers.

    The MUTCD already requires that pavement markings that must be visible at night shall be retroreflective unless ambient illumination assures that the markings are adequately visible and that all markings on Interstate highways shall be retroreflective. The proposed changes in the MUTCD would provide additional guidance and clarification, while allowing flexibility in maintaining pavement marking retroreflectivity. The pavement markings excluded from the proposed rulemaking are not to be excluded from any other MUTCD standards. The FHWA believes that the uniform application of traffic control devices will greatly improve the traffic operations efficiency and roadway safety. The standards, guidance, and support are also used to create uniformity and to enhance safety and mobility at little additional expense to public agencies or the motoring public.

    The economic analysis provides a national estimate of the costs to implement this rulemaking and to replace markings. Costs for individual agencies would vary based on factors such as the amount of pavement marking mileage subject to the standards and current pavement marking practices. The analysis estimates first year start-up implementation costs of $29.4 million for all affected State and local agencies to develop maintenance methods and purchase necessary equipment. In addition, annual measurement and management activities of $14.9 million nationwide are expected to determine which markings require replacement. In the second and following years, if agencies were to replace markings that do not meet the minimums despite the fact that there are no replacement compliance dates, there is an estimated increase of approximately $52.5 million per year nationally from current estimated pavement marking replacement expenditures. Therefore, this proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. In addition, these changes would not create a serious inconsistency with any other Federal agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. It is anticipated that the economic impact of this rulemaking would be minimal; therefore, a full regulatory evaluation is not required, though FHWA has prepared an economic analysis, which has been placed in the docket. Although it is not possible to calculate the benefits specifically attributed to this proposal, numerous safety studies dating back to the 1970's clearly show that adding pavement markings to two lane highways reduces nighttime crashes, a result of those markings providing enough retroreflectivity to be visible to drivers at night. The limited safe speed on unmarked roads at night is a clear indication that there are also operational benefits of visible pavement markings both day and night. The FHWA believes that lives will be saved and injuries reduced by the improved maintenance of pavement marking retroreflectivity. As indicated in the economic analysis, a crash reduction factor is not available to estimate the safety benefits of maintaining pavement marking retroreflectivity. Lack of crash reduction factors associated specifically with retroreflectivity has limited the analysis to developing a range of potential benefit-cost ratios between 1 and 60.

    Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed action on small entities, including small governments. This proposed action would apply to State and local DOTs in the execution of their highway programs, specifically with respect to the retroreflectivity of pavement markings. In addition, pavement marking improvement is eligible for up to 100 percent Federal-aid funding. This also applies to local jurisdictions and tribal governments, pursuant to 23 U.S.C. 120(c). I hereby certify that this proposed action will not have a significant economic impact on a substantial number of small entities.

    Executive Order 13132 (Federalism)

    The FHWA analyzed this proposed amendment in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and FHWA has determined that this proposed action would not have a substantial direct effect or sufficient federalism implications on States and local governments that would limit the policymaking discretion of the States and local governments. Nothing in the MUTCD directly preempts any State law or regulation.

    The MUTCD is incorporated by reference in 23 CFR part 655, subpart F. These proposed amendments are in keeping with the Secretary of Transportation's authority under 23 U.S.C. 109(d), 315, and 402(a) to promulgate uniform guidelines to promote the safe and efficient use of the highway.

    Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995). The economic impacts analysis shows that implementing these standards would likely increase current pavement marking replacement expenditures by approximately $52.5 million per year for all State and local agencies nationwide. The estimates are based upon the assumption that the distribution of marking materials on a national basis is 75 percent paint, 20 percent thermoplastic, and 5 percent epoxy. There would also be an estimated cost of $14.9 million in annual measurement and management activities nationwide to ensure compliance with the minimum values. In addition, in the first year, before annual implementation or replacement costs began, the State and local agencies are estimated to have nationwide start-up implementation costs of $29.4 million to develop maintenance methods and purchase measurement equipment. Finally, the compliance dates to replace markings that do not meet the minimum retroreflectivity have been eliminated. Although agencies will still need to replace these markings, their schedules would be based on their method for maintaining retroreflectivity as well as their resources and relative priorities. Therefore, this proposed rule would not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $151 million or more in any one year. In addition, pavement marking replacement is eligible for up to 100 percent Federal-aid funding. This applies to local jurisdictions and tribal governments, pursuant to 23 U.S.C. 120(c). Further, the definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.

    Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed action under Executive Order 13175, dated November 6, 2000, and believes that it would not have substantial direct effects on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.

    Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this proposed action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that this is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

    Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

    Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this proposed action does not contain a collection of information requirement for the purposes of the PRA.

    Executive Order 12988 (Civil Justice Reform)

    This proposed action meets applicable standards in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, to eliminate ambiguity, and to reduce burden.

    Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this proposed action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This is not an economically significant action and does not concern an environmental risk to health or safety that might disproportionately affect children.

    Executive Order 12630 (Taking of Private Property)

    This proposed action would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

    National Environmental Policy Act

    The agency has analyzed this proposed action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has determined that it will not have any significant effect on the quality of the environment and is categorically excluded under 23 CFR 771.117(c)(20).

    Regulation Identifier Number

    A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

    List of Subjects in 23 CFR Part 655

    Design standards, Grant programs—Transportation, Highways and roads, Incorporation by reference, Pavement markings, Traffic regulations.

    Issued in Washington, DC under authority delegated in 49 CFR 1.85.

    Gregory G. Nadeau, Administrator, Federal Highway Administration.

    For the reasons stated in the preamble, FHWA proposes to amend title 23, Code of Federal Regulations, part 655, subpart F as follows:

    PART 655—TRAFFIC OPERATIONS 1. The authority for part 655 is revised to read as follows: Authority:

    23 U.S.C. 101(a), 104, 109(d), 114(a), 217, 315 and 402(a); 23 CFR 1.32; and 49 CFR 1.85.

    Subpart F—Traffic Control Devices on Federal-Aid and Other Streets and Highways [Amended] 2. Revise § 655.601(d)(2)(i), to read as follows:
    § 655.601 Purpose

    (d) * * *

    (2) * * *

    (i) Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD), 2009 edition, including Revision No. 1 and No. 2, dated May 2012, and No. [number to be inserted], dated [date to be inserted], FHWA.

    [FR Doc. 2016-31249 Filed 1-3-17; 8:45 am] BILLING CODE 4910-22-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Parts 18, 19, 24, 25, 26, 27, 28, and 30 [Docket No. TTB-2016-0013; Notice No. 167; Re: T.D. TTB-146] RIN 1513-AC30 Changes to Certain Alcohol-Related Regulations Governing Bond Requirements and Tax Return Filing Periods AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau, Treasury.

    ACTION:

    Notice of proposed rulemaking; cross-reference to temporary rule.

    SUMMARY:

    In a temporary rule published elsewhere in this issue of the Federal Register, the Alcohol and Tobacco Tax and Trade Bureau (TTB) is amending its regulations relating to excise taxes imposed on distilled spirits, wines, and beer to implement certain changes made to the Internal Revenue Code of 1986 (IRC) by the Protecting Americans from Tax Hikes Act of 2015 (PATH Act). The temporary rule implements section 332 of the PATH Act, which amends the IRC to remove bond requirements and change tax return due dates for certain eligible excise taxpayers. In this document, TTB proposes to adopt the regulations in the temporary rule as a permanent regulatory change. The text of the regulations in the temporary rule serves as the text of the proposed regulations. This document also proposes to amend the regulations governing the submission of reports by certain eligible excise taxpayers. In this document, TTB is soliciting comments on the amendments adopted in the temporary rule and the amendments proposed in this notice of proposed rulemaking.

    DATES:

    Comments must be received on or before March 6, 2017.

    ADDRESSES:

    Please send your comments on this proposal to one of the following addresses. Comments submitted by other methods, including email, will not be accepted.

    Internet: https://www.regulations.gov (via the online comment form for this document as posted within Docket No. TTB-2016-0013 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 temporary rule, selected supporting materials, and any comments TTB receives about this proposal at https://www.regulations.gov within Docket No. TTB-2016-0013. A direct link to this docket is posted on the TTB Web site at https://www.ttb.gov/regulations_laws/all_rulemaking.shtml under Notice No. 167. You also may view copies of this document, the temporary rule, all related supporting materials, and any comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street NW., Washington, DC 20005. Please call 202-453-2270 to make an appointment.

    FOR FURTHER INFORMATION CONTACT:

    For questions concerning this document, contact Ben Birkhill, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau (202-453-2265).

    SUPPLEMENTARY INFORMATION:

    Background TTB Authority

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers provisions in chapter 51 of the Internal Revenue Code of 1986, as amended (IRC), pertaining to the taxation of distilled spirits, wines, and beer (see title 26 of the United States Code (U.S.C.), chapter 51 (26 U.S.C. chapter 51)). TTB also regulates distilled spirits, wines, and malt beverages pursuant to the Federal Alcohol Administration Act (FAA Act). TTB administers the provisions of the IRC and 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 Department Order 120-01, dated January 24, 2003), to the TTB Administrator to perform the functions and duties in administration and enforcement of these laws.

    Sections 5001, 5041, and 5051 of the IRC (26 U.S.C. 5001, 5041, and 5051) impose tax on distilled spirits, wines, and beer produced in or imported into the United States. Generally, taxes are determined (i.e., become due for payment) when they are removed from qualified facilities in the United States or imported as provided in sections 5006, 5043, and 5054 of the IRC (26 U.S.C. 5006, 5043, and 5054). Section 5061 of the IRC (26 U.S.C. 5061) governs the collection of tax due on distilled spirits, wines, and beer, including the time periods and due dates for paying such taxes by return. Under some circumstances, the IRC authorizes the removal of distilled spirits, wines, and beer from facilities in the United States without paying the excise taxes imposed on such products. For example, the IRC does not require payment of tax for certain transfers between qualified facilities in the United States as provided in sections 5212, 5362(b), and 5414 of the IRC (26 U.S.C. 5212, 5362(b), and 5414).

    The PATH Act and the Temporary Rule

    On December 18, 2015, the President signed into law the Consolidated Appropriations Act, 2016 (Public Law 114-113). Division Q of this Act is titled the Protecting Americans from Tax Hikes Act of 2015 (PATH Act). Section 332 of the PATH Act amends the IRC to change tax return due dates and remove bond requirements for certain eligible taxpayers who pay excise taxes on distilled spirits, wines, and beer.

    With respect to tax return due dates, section 332 amends section 5061(d) of the IRC to authorize a new annual return period for deferred payment of excise tax, in addition to the preexisting quarterly and semimonthly deferred payment periods authorized under that section. Deferred payment of tax refers to payment using one of these three return periods prescribed under the IRC rather than payment immediately each time the tax becomes due. As described above, taxes on distilled spirits, wines, and beer generally become due when the products are removed from qualified facilities in the United States or imported into the United States. To be eligible to use the annual or quarterly return periods, the taxpayer must reasonably expect to be liable for not more than $1,000 in excise taxes, in the case of annual returns, or $50,000 in excise taxes, in the case of quarterly returns, for the calendar year and must have been liable for not more than these respective quantities in the preceding calendar year. Since these $1,000 and $50,000 ceilings are based on liability for payment of taxes by return under section 5061 of the IRC, they do not include liability for taxes imposed but not necessarily due, such as liability associated with taxes imposed on distilled spirits, wines, and beer produced in or imported into the United States that have not been removed from qualified facilities on payment or determination of tax.

    Section 332 of the PATH Act also amends several provisions of the IRC to remove bond requirements for certain taxpayers who are eligible to pay taxes on distilled spirits, wines, and beer using quarterly or annual return periods and who pay taxes on a deferred basis. Under section 332, these taxpayers are exempt from bond requirements with respect to distilled spirits and wine only to the extent those products are for nonindustrial use. The amended provisions relating to this bond exemption are sections 5173, 5351, 5401, and 5551 of the IRC.

    In a temporary rule published elsewhere in this issue of the Federal Register, TTB is amending the regulations in chapter I of title 27 of the Code of Federal Regulations (27 CFR) to implement section 332 of the PATH Act and to make several technical amendments to update certain bond-related provisions. The temporary rule amends regulations in 27 CFR parts 18, 19, 24, 25, 26, 27, 28, and 30. These amendments include incorporating the new annual return period into the regulations, clarifying the circumstances under which taxpayers are eligible for the bond exemption, and adding new provisions governing qualification and loss of eligibility for the bond exemption. The preamble of the temporary rule explains the proposed regulations in more detail, and this notice solicits comments on the amendments adopted in the temporary rule. The text of the regulations in the temporary rule serves as the text of the proposed regulations for purposes of this document.

    Proposed Amendments to Reporting Requirements

    In this document, TTB is also proposing to amend the regulations governing reporting requirements for distilled spirits plants (DSPs) and brewers in order to reduce unnecessary regulatory burden on some industry members who pay taxes using annual or quarterly return periods. TTB is also soliciting comments on whether to amend current reporting requirements for bonded wine cellars (including bonded wineries). These reporting provisions help protect the revenue by requiring regulated parties to submit information to TTB relating to their operations that are subject to regulation under the IRC. This section discusses current reporting requirements for these industry members and the proposed regulatory amendments.

    Current Reporting Requirements

    The regulations in 27 CFR parts 19, 24, and 25 govern the operations of DSPs, bonded wine cellars, and breweries in the United States. Under 27 CFR 19.632, DSP proprietors must submit to TTB certain monthly reports of operations. These reports are TTB Form 5110.40 (Monthly Report of Production Operations), TTB Form 5110.11 (Monthly Report of Storage Operations), TTB Form 5110.28 (Monthly Report of Processing Operations), and TTB Form 5110.43 (Monthly Report of Processing (Denaturing) Operations). Under the current regulations, DSPs may not file required reports less frequently than monthly.

    Under 27 CFR 24.300(g), bonded wine cellars must generally file reports on a monthly basis using TTB Form 5120.17 (Report of Wine Premises Operations), but they may file reports quarterly or annually if they meet the criteria to do so. To be eligible to file reports on a quarterly basis, the proprietor must be filing quarterly tax returns, and the proprietor must not expect the sum of the bulk and bottled wine to be accounted for in all tax classes to exceed 60,000 gallons for any one quarter during the calendar year when adding up certain wine on the proprietor's premises. The wine that must be taken into account for this purpose is wine on hand at the beginning of the month, bulk wine produced by fermentation, sweetening, blending, amelioration or addition of wine spirits, bulk wine bottled, bulk and bottled wine received in bond, taxpaid wine returned to bond, bottled wine dumped to bulk, inventory gains, and any activity written in the untitled lines of the report which increases the amount of wine to be accounted for. The wines that must be taken into account for this purpose are wines on which taxes are imposed but not necessarily due, since the wines are not reported as withdrawn on payment or determination of tax. To be eligible to file reports on an annual basis, the proprietor must be filing annual tax returns, and the proprietor must not expect the sum of the bulk and bottled wine to be accounted for in all tax classes to exceed 20,000 gallons for any one month during the calendar year when adding up certain wine on the proprietor's premises. The wine that must be taken into account for this purpose is the same as the wine that must be taken into account for purposes of determining eligibility for quarterly reporting.

    Under 27 CFR 25.297, each brewer must file a monthly report using TTB Form 5130.9 (Brewer's Report of Operations), unless the brewer is required to file reports on a quarterly basis. A brewer must file quarterly reports using TTB Form 5130.26 (Quarterly Brewer's Report of Operations) or TTB Form 5130.9 if the brewer was liable for not more than $50,000 in taxes with respect to beer in the preceding calendar year and reasonably expects to be liable for not more than $50,000 in such taxes during the current calendar year. As referenced above, a brewer who meets these $50,000 ceilings is eligible to pay taxes quarterly under section 5061 of the IRC. Since these $50,000 ceilings are based on liability for payment of taxes by return under section 5061 of the IRC, they do not include liability for taxes imposed but not necessarily due.

    Proposed Amendments and Solicitation of Comments

    TTB is proposing to amend the reporting regulations applicable to DSPs and brewers, and TTB is soliciting comments on whether to amend the reporting regulations for bonded wine cellars. TTB proposes to amend the regulations to authorize new quarterly and annual reporting periods for certain DSPs, to authorize a new annual reporting period for certain brewers, and to change the existing quarterly reporting requirements for brewers. As discussed further below, the proposed criteria for quarterly and annual reporting by DSPs and brewers are modeled in part on the current criteria for quarterly and annual reporting by bonded wine cellars, with some modifications. TTB is soliciting comment on whether these modified criteria should be adopted for DSPs and brewers. TTB is also requesting comment on whether it should instead adopt criteria for quarterly and annual reporting by DSPs and brewers that resemble the requirements used for such reporting by bonded wine cellars (i.e., by taking into account the sum of certain products listed on specific lines of proprietors' reports). In addition, TTB is soliciting comment on whether it should amend the current requirements for quarterly and annual reporting by bonded wine cellars so that the requirements are consistent with the proposed modified criteria for quarterly and annual reporting by DSPs and brewers.

    Under the proposed amendments to §§ 19.632 and 25.297, DSPs and brewers must report monthly unless they are required to report quarterly or annually. Under the proposed amendments, DSPs and brewers must report quarterly for a calendar year if they file quarterly tax returns for that calendar year and if their liability for taxes on alcohol for which taxes have not been paid does not exceed $50,000 at any time during that calendar year. For purposes of the latter criterion, liability for taxes that have not been paid includes liability for taxes determined but not yet paid and liability for taxes imposed but not necessarily due for payment. Under the proposed amendments, DSPs and brewers must report annually if they file annual tax returns and if their liability for taxes on alcohol for which taxes have not been paid does not exceed $50,000 at any time during the calendar year. The purpose of these eligibility criteria is to reduce reporting burdens on taxpayers whose tax payments do not exceed the ceilings described above for paying taxes quarterly or annually and whose liability for taxes that have not been paid does not exceed $50,000. As discussed below, both types of liability are relevant for determining required reporting frequency for revenue protection purposes.

    The proposed criteria for quarterly and annual reporting in amended §§ 19.632 and 25.297 are modeled in part on the current criteria for quarterly and annual reporting by bonded wine cellars, which are based on both the frequency with which the proprietor pays taxes by return and the proprietor's liability for alcohol on which taxes have not been paid. Both factors are relevant for determining required reporting frequency because they relate to the proprietor's overall tax liability under the IRC. Generally, more frequent reporting is necessary for a proprietor who has greater tax liability because TTB needs more detailed information regarding the proprietor's operations for revenue protection purposes. More frequent reporting is necessary for proprietors who use more frequent return periods for paying tax because such proprietors generally have greater liability for taxes due for payment. In addition, since a proprietor's liability for taxes imposed but not necessarily due also raises revenue risks, this type of tax liability must also be taken into account for determining appropriate reporting frequency.

    With respect to return periods, TTB believes it is appropriate to require that DSPs and brewers pay taxes on an annual or quarterly basis to be eligible to report on an annual or quarterly basis, respectively. This requirement under proposed §§ 19.632 and 25.297 is consistent with current reporting requirements for bonded wine cellars under § 24.300(g). With respect to liability for taxes imposed but not necessarily due, TTB has determined that the proposed $50,000 maximum discussed above for DSPs and brewers reporting quarterly and annually is necessary for revenue protection purposes. The $50,000 limit ensures that DSPs and brewers reporting quarterly or annually who pay excise taxes using quarterly or annual return periods do not engage in operations that involve significant tax liability for which the IRC does not require payment of tax, such as certain transfers of alcohol between qualified facilities in the United States (see sections 5212, 5362(b), and 5414 of the IRC). Since DSPs and brewers who report quarterly or annually meet the tax payment ceilings for the use of quarterly or annual return periods, TTB has determined that this $50,000 limit on taxes imposed but not necessarily due is appropriate for both quarterly and annual reporters. Quarterly and annual reporters will be subject to different tax payment ceilings based on the tax return period they use, and the $50,000 limit is simply intended to ensure that neither category of reporters engages in operations that involve significant tax liability for which the IRC does not require payment of tax.

    The $50,000 maximum for DSPs and brewers under proposed §§ 19.632 and 25.297 is different from current quarterly and annual reporting requirements for bonded wine cellars. Under § 24.300(g), bonded wine cellars must not expect the sum of the bulk and bottled wine to be accounted for in all tax classes to exceed 60,000 gallons for any one quarter (in the case of quarterly reporting) or 20,000 gallons for any one month (in the case of annual reporting) when adding up certain wine on the proprietor's premises as described above. Because section 5041 of the IRC imposes several different tax rates on wine, the tax liability associated with these quantities may or may not exceed $50,000, depending on the circumstances. TTB is soliciting comment on whether there are wine-specific reasons for retaining the 60,000-gallon and 20,000-gallon limits in the regulations and whether it would instead be appropriate for consistency purposes to amend § 24.300(g) to incorporate the same $50,000 maximum that TTB is proposing for DSPs and brewers under §§ 19.632 and 25.297.

    Finally, TTB is also requesting comment on whether it should amend § 24.300(g) to require (rather than simply allow) the use of quarterly and annual reporting periods for bonded wine cellars who meet the criteria to use them. Under the current regulations, such proprietors may choose to submit reports monthly even though they are eligible to report less frequently. TTB believes that requiring less frequent reporting for eligible proprietors would reduce reporting burdens on proprietors and would reduce report processing burdens on TTB. TTB is therefore soliciting comment on whether there are wine-specific reasons for continuing to allow the voluntary use of quarterly or annual reporting periods for bonded wine cellars that are eligible to use them.

    Public Participation Comments Sought

    TTB requests comments from interested members of the public on the regulations adopted in the temporary rule and the additional regulatory amendments proposed in this document. In addition, TTB is requesting comments whether it should amend the current requirements for quarterly and annual reporting by bonded wine cellars so that the requirements are consistent with the criteria proposed in this document for quarterly and annual reporting by DSPs and brewers.

    Submitting Comments

    You may submit comments on this proposal by one of the following three methods:

    Federal e-Rulemaking Portal: You may electronically submit comments via the online comment form posted with this proposed rule within Docket No. TTB-2016-0013 on “Regulations.gov,” the Federal e-rulemaking portal. A direct link to that docket is available on the TTB Web site at https://www.ttb.gov/spirits/spirits-rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For information on how to use Regulations.gov, visit the site and click on the “Help” tab.

    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. 167 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 temporary rule, and any online or mailed comments received about this proposal within Docket No. TTB-2016-0013 on the Federal e-rulemaking portal. A direct link to that docket is available on the TTB Web site at https://www.ttb.gov/regulations_laws/all_rulemaking.shtml under Notice No. 167. 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 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 8.5- 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

    TTB certifies that this proposed regulation, if adopted, will not have a significant economic impact on a substantial number of small entities. The proposed amendments would reduce reporting requirements for certain proprietors described in this document. The proposed rule, if adopted, will not impose, or otherwise cause, a significant increase in reporting, recordkeeping, or other compliance burdens on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. Pursuant to 26 U.S.C. 7805(f), TTB will submit the proposed regulations to the Chief Counsel for Advocacy of the Small Business Administration for comment on the impact of the proposed regulations on small businesses.

    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.

    Paperwork Reduction Act

    The six collections of information associated with the proposed regulatory requirements discussed in this notice of proposed rulemaking (including the regulatory requirements relating to wine reporting on which TTB is seeking comment) 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(d)) and assigned control numbers 1513-0007, 1513-0039, 1513-0041, 1513-0047, 1513-0049, and 1513-0053. 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 proposed regulatory text in 27 CFR 19.632 contains alterations to the information collections currently approved under OMB control numbers 1513-0039, 1513-0041, 1513-0047, and 1513-0049. These control numbers cover, respectively, TTB Forms 5110.11, 5110.28, 5110.40, and 5110.43. If adopted, these revisions would provide for less frequent reporting by certain DSPs. Under the current regulations, DSPs must submit required reports on a monthly basis. Under the proposed regulatory amendments, a DSP would report quarterly if they file quarterly tax returns and would report annually if they file annual tax returns as long as, in either case, the DSP's liability for taxes on distilled spirits for which taxes have not been paid does not exceed $50,000 at any time during the calendar year. Taking into account the proposed regulatory amendments, TTB estimates the burden associated with these information collections as follows:

    1513-0039

    Estimated number of respondents: 684 reporting monthly; 651 reporting quarterly; 424 reporting annually.

    Estimated annual frequency of responses: 12 for monthly reporting; 4 for quarterly reporting; 1 for annual reporting.

    Estimated average annual total burden hours: 11,236.

    1513-0041

    Estimated number of respondents: 634 reporting monthly; 603 reporting quarterly; 392 reporting annually.

    Estimated annual frequency of responses: 12 for monthly reporting; 4 for quarterly reporting; 1 for annual reporting.

    Estimated average annual total burden hours: 20,824.

    1513-0047

    Estimated number of respondents: 571 reporting monthly; 544 reporting quarterly; 354 reporting annually.

    Estimated annual frequency of responses: 12 for monthly reporting; 4 for quarterly reporting; 1 for annual reporting.

    Estimated average annual total burden hours: 18,764.

    1513-0049

    Estimated number of respondents: 184 reporting monthly; 175 reporting quarterly; 114 reporting annually.

    Estimated annual frequency of responses: 12 for monthly reporting; 4 for quarterly reporting; 1 for annual reporting.

    Estimated average annual total burden hours: 3,022.

    The proposed regulatory text in 27 CFR 25.297 contains alterations to the information collection currently approved under OMB control number 1513-0007. This control number covers TTB Forms 5130.9 and 5130.26. If adopted, these revisions would provide for less frequent reporting by certain brewers who file annual tax returns and would continue to authorize quarterly reporting by certain brewers who file quarterly tax returns. In the case of a brewer who reports quarterly or annually, the brewer's liability for taxes on beer for which taxes have not been paid must not exceed $50,000 at any time during the calendar year. Taking into account the proposed regulatory amendments, TTB estimates the burden associated with this information collection as follows:

    Estimated number of respondents: 1,344 reporting monthly; 2,998 reporting quarterly; 1,956 reporting annually.

    Estimated annual frequency of responses: 12 for monthly reporting; 4 for quarterly reporting; 1 for annual reporting.

    Estimated average annual total burden hours: 22,557.

    Finally, TTB is requesting comments on whether to amend § 24.300(g) so that the reporting requirements for bonded wine cellars on TTB Form 5120.17 are consistent with the proposed reporting requirements for DSPs and brewers. The reporting requirements in § 24.300(g) are covered under OMB control number 1513-0053. Similar to the proposed amendments for DSPs and brewers, the current reporting provisions for bonded wine cellars require that the proprietor file tax returns quarterly or annually to be eligible for quarterly or annual reporting, respectively. In addition, the proprietor must not expect the sum of the bulk and bottled wine to be accounted for in all tax classes to exceed 60,000 gallons for any one quarter (in the case of quarterly reporting) or 20,000 gallons for any one month (in the case of annual reporting) when adding up certain wine on the proprietor's premises. TTB is soliciting comment on whether to adopt the proposed $50,000 limit described above for DSPs and brewers in lieu of the 20,000-gallon and 60,000-gallon limits in the current regulations. TTB does not estimate that this change, if adopted, would result in changes in reporting burden for proprietors. We are, however, reporting an increase in the number of respondents to this collection to reflect the current number of proprietors who file the form. TTB estimates the burden associated with this information collection as follows:

    Estimated number of respondents: 2,316 reporting monthly; 4,733 reporting quarterly; 4,467 reporting annually.

    Estimated annual frequency of responses: 12 for monthly reporting; 4 for quarterly reporting; 1 for annual reporting.

    Estimated average annual total burden hours: 56,310.

    Revisions of these six currently approved collections have been submitted to OMB for review. Comments on the revisions 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 previously described. Comments on the information collections should be submitted no later than March 6, 2017. Comments are specifically requested concerning:

    • Whether the proposed revisions of the collections of information are 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 burdens associated with the proposed revisions of the collections of information;

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

    • How to minimize the burden of complying with the proposed revision of the collection of information, including the application of automated collection techniques or other forms of information technology; and

    • Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.

    Drafting Information

    Ben Birkhill 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 18

    Alcohol and alcoholic beverages, Fruits, Reporting and recordkeeping requirements, Spices and flavorings.

    27 CFR Part 19

    Administrative practice and procedure, Alcohol and alcoholic beverages, Authority delegations (Government agencies), Caribbean Basin initiative, Chemicals, Claims, Customs duties and inspection, Electronic funds transfers, Excise taxes, Exports, Gasohol, Imports, Labeling, Liquors, Packaging and containers, Puerto Rico, Reporting and recordkeeping requirements, Research, Security measures, Spices and flavorings, Stills, Surety bonds, Transportation, Vinegar, Virgin Islands, Warehouses, Wine.

    27 CFR Part 24

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

    27 CFR Part 25

    Beer, Claims, Electronic funds transfers, Excise taxes, Exports, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Research, Surety bonds.

    27 CFR Part 26

    Alcohol and alcoholic beverages, Caribbean Basin initiative, Claims, Customs duties and inspection, Electronic funds transfers, Excise taxes, Packaging and containers, Puerto Rico, Reporting and recordkeeping requirements, Surety bonds, Virgin Islands, Warehouses.

    27 CFR Part 27

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

    27 CFR Part 28

    Aircraft, Alcohol and alcoholic beverages, Armed forces, Beer, Claims, Excise taxes, Exports, Foreign trade zones, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Surety bonds, Vessels, Warehouses, Wine.

    27 CFR Part 30

    Liquors, Scientific equipment.

    Proposed Regulatory Amendments

    For the reasons discussed in the preamble, TTB proposes to amend 27 CFR, chapter I, parts 18, 19, 24, 25, 26, 27, 28, and 30 as set forth below:

    PART 18—PRODUCTION OF VOLATILE FRUIT-FLAVOR CONCENTRATE 1. The authority citation for part 18 is revised to read as follows: Authority:

    26 U.S.C. 5001, 5171-5173, 5178, 5179, 5203, 5351, 5354, 5356, 5511, 5552, 6065, 6109, 7805.

    2. [The proposed amendatory instructions and the proposed regulatory text for part 18 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 19—DISTILLED SPIRITS PLANTS 3. The authority citation for part 19 continues to read as follows: Authority:

    19 U.S.C. 81c, 1311; 26 U.S.C. 5001, 5002, 5004-5006, 5008, 5010, 5041, 5061, 5062, 5066, 5081, 5101, 5111-5114, 5121-5124, 5142, 5143, 5146, 5148, 5171-5173, 5175, 5176, 5178-5181, 5201-5204, 5206, 5207, 5211-5215, 5221-5223, 5231, 5232, 5235, 5236, 5241-5243, 5271, 5273, 5301, 5311-5313, 5362, 5370, 5373, 5501-5505, 5551-5555, 5559, 5561, 5562, 5601, 5612, 5682, 6001, 6065, 6109, 6302, 6311, 6676, 6806, 7011, 7510, 7805; 31 U.S.C. 9301, 9303, 9304, 9306.

    4. [With the addition of the amendatory instructions and proposed regulatory text set forth below, the proposed amendatory instructions and the proposed regulatory text for part 19 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].
    § 19.147 [Amended]
    5. In § 19.147, paragraph (d) is amended by removing the word “monthly”. 6. Section 19.632 is revised to read as follows:
    § 19.632 Submission of reports.

    (a) General. Each proprietor must submit reports of its distilled spirits plant operations to TTB in accordance with paragraph (b) of this section. The proprietor must submit the original reports to TTB and must retain a copy for its records. The required report forms are as follows:

    (1) Report of Production Operations, form TTB F 5110.40, except that no report is required when production operations are suspended as provided in § 19.292;

    (2) Report of Storage Operations, form TTB F 5110.11;

    (3) Report of Processing Operations, form TTB F 5110.28; and

    (4) Monthly Report of Processing (Denaturing) Operations, form TTB F 5110.43.

    (b) Reporting periods. Each proprietor must submit the reports specified in paragraph (a) of this section to the Director, National Revenue Center, not later than the 15th day following the last day of the reporting periods specified in this paragraph. A proprietor may submit reports in either paper format or electronically via TTB Pay.gov. The required reporting periods are as follows:

    (1) Monthly reporting periods. Except in cases where the proprietor must submit reports covering each calendar quarter or calendar year of operations under paragraphs (b)(2) or (b)(3) of this section, a proprietor must submit reports covering for each month of operations.

    (2) Quarterly reporting periods. A proprietor must submit reports covering each calendar quarter of operations if both of the following are true:

    (i) The proprietor files quarterly tax returns pursuant to § 19.235; and

    (ii) The proprietor's liability for tax on spirits for which taxes have not been paid does not exceed $50,000 at any time during the calendar year.

    (3) Annual reporting periods. A proprietor must submit reports covering for each calendar year of operations if both of the following are true:

    (i) The proprietor files annual tax returns pursuant to § 19.235; and

    (ii) The proprietor's liability for tax on spirits for which taxes have not been paid does not exceed $50,000 at any time during the calendar year.

    (c) Loss of eligibility for quarterly or annual reporting—(1) General. If a proprietor is using a reporting period under paragraph (b)(2) or (b)(3) of this section but becomes required to use a more frequent reporting period due to changes in the proprietor's return filing frequency or tax liability, the proprietor must:

    (i) File the appropriate report form or forms beginning with the first quarterly or monthly reporting period during which the proprietor became required to report in that period; and

    (ii) Concurrently file the appropriate report form or forms covering any previous quarters of the calendar year (in the case of a proprietor who was previously authorized to submit reports annually) or any previous months of the calendar quarter (in the case of a proprietor who was previously authorized to submit reports quarterly).

    (2) Required statement. When filing the first quarterly or monthly report form or forms described in paragraph (c)(1)(i) of this section, a proprietor must state on the form or forms that the proprietor is increasing the frequency of its reporting and henceforth will submit quarterly or monthly reports, as applicable. The proprietor must then continue to file the appropriate form or forms for each subsequent quarter or month of that calendar year.

    (d) More frequent reporting required by TTB. The appropriate TTB officer may at any time require a proprietor who is reporting quarterly or annually to report more frequently if there is a jeopardy to the revenue.

    PART 24—WINE 7. 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.

    8. [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 25—BEER 9. The authority citation for part 25 continues to read as follows: Authority:

    19 U.S.C. 81c; 26 U.S.C. 5002, 5051-5054, 5056, 5061, 5121, 5122-5124, 5222, 5401-5403, 5411-5417, 5551, 5552, 5555, 5556, 5671, 5673, 5684, 6011, 6061, 6065, 6091, 6109, 6151, 6301, 6302, 6311, 6313, 6402, 6651, 6656, 6676, 6806, 7342, 7606, 7805; 31 U.S.C. 9301, 9303-9308.

    10. [With the addition of the amendatory instructions and proposed regulatory text set forth below, the proposed amendatory instructions and the proposed regulatory text for part 25 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]. 11. Section 25.297 is revised to read as follows:
    § 25.297 Report of Operations, Form 5130.9 or Form 5130.26.

    (a) Monthly report of operations. Except as provided in paragraph (b) or (c) of this section, each brewer must prepare and submit a monthly report of brewery operations on Form 5130.9.

    (b) Quarterly report of operations. A brewer must file quarterly Form 5130.9 or Form 5130.26 (or any successor forms) if both of the following are true:

    (1) The brewer files quarterly tax returns pursuant to § 25.164; and

    (2) The brewer's liability for tax on beer for which taxes have not been paid does not exceed $50,000 at any time during the calendar year.

    (c) Annual report of operations. A brewer must file annual Form 5130.9 or Form 5130.26 (or any successor forms) if both of the following are true:

    (1) The brewer files annual tax returns pursuant to § 25.164; and

    (2) The brewer's liability for tax on beer for which taxes have not been paid does not exceed $50,000 at any time during the calendar year.

    (d) Loss of eligibility for quarterly or annual reporting—(1) General. If a brewer using a reporting period under paragraph (b) or (c) of this section becomes required to use a more frequent reporting period, the brewer must:

    (i) File the appropriate report form beginning with the first quarterly or monthly period during which the brewer became required to use that period; and

    (ii) Concurrently file the appropriate report form or forms covering any previous quarters of the calendar year (in the case of a brewer who was previously authorized to submit reports annually) or any previous months of the calendar quarter (in the case of a brewer who was previously authorized to submit reports quarterly).

    (2) Required statement. When filing the first quarterly or monthly report described in paragraph (d)(1)(i) of this section, a brewer must state on the form that it is increasing the frequency of its reporting and henceforth will submit quarterly or monthly reports, as applicable. The brewer must then continue to file the appropriate form for each subsequent quarter or month of that calendar year.

    (e) More frequent reporting required by TTB. The appropriate TTB officer may at any time require a brewer who is filing Form 5130.9 or Form 5130.26 quarterly or annually to file such reports more frequently if there is a jeopardy to the revenue.

    (f) Submission and retention. The brewer may submit reports in either paper format or electronically via TTB Pay.gov. The brewer must retain a copy of Form 5130.9 or Form 5130.26 (or any successor form) in either paper or electronic format as part of the brewery records.

    PART 26—LIQUORS AND ARTICLES FROM PUERTO RICO AND THE VIRGIN ISLANDS 12. The authority citation for part 26 is revised to read as follows: Authority:

    19 U.S.C. 81c; 26 U.S.C. 5001, 5007, 5008, 5010, 5041, 5051, 5061, 5111-5114, 5121, 5122-5124, 5131-5132, 5207, 5232, 5271, 5275, 5301, 5314, 5555, 6001, 6109, 6301, 6302, 6804, 7101, 7102, 7651, 7652, 7805; 27 U.S.C. 203, 205; 31 U.S.C. 9301, 9303, 9304, 9306.

    13. [The proposed amendatory instructions and the proposed regulatory text for part 26 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 14. The authority citation for part 27 is revised 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, 5555, 6109, 6302, 7805.

    15. [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]. PART 28—EXPORTATION OF ALCOHOL 16. The authority citation for part 28 is revised to read as follows: Authority:

    5 U.S.C. 552(a); 19 U.S.C. 81c, 1202; 26 U.S.C. 5001, 5007, 5008, 5041, 5051, 5054, 5061, 5121, 5122, 5201, 5205, 5207, 5232, 5273, 5301, 5313, 5555, 6109, 6302, 7805; 27 U.S.C. 203, 205; 44 U.S.C. 3504(h).

    17. [The proposed amendatory instructions and the proposed regulatory text for part 28 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 30—GAUGING MANUAL 18. The authority citation for part 30 continues to read as follows: Authority:

    26 U.S.C. 7805.

    19. [The proposed amendatory instructions and the proposed regulatory text for part 30 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 21, 2016. Mary G. Ryan, Acting Administrator. Approved: December 22, 2016. Timothy E. Skud, Deputy Assistant Secretary. (Tax, Trade, and Tariff Policy).
    [FR Doc. 2016-31415 Filed 1-3-17; 8:45 am] BILLING CODE 4810-31-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0561] RIN 1625-AA09 Drawbridge Operation Regulation; Upper Mississippi River, IA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to change the operating schedule that governs the draws of all bridges between Lock and Dam No. 14, mile 493.3, and Lock and Dam No. 10, mile 615.1, on the Upper Mississippi River by adding a 24-hour notice requirement for openings during the winter season. This proposed rule would allow the drawbridges to remain in the closed-to-navigation position for extended periods allowing the owners of the drawbridges to perform preventive maintenance that is essential to the safe operation of the drawbridges. This proposed rule would allow for flexibility in beginning these special operating schedules each year based on the arrival of winter weather.

    DATES:

    Comments and related material must reach the Coast Guard on or before March 6, 2017.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0561 using Federal eRulemaking Portal at http://www.regulations.gov.

    See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this proposed rule, call or email Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard; telephone 314-269-2378, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive Order FR Federal Register NPRM Notice of proposed rulemaking SNPRM Supplemental notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code II. Background, Purpose and Legal Basis

    For 7 years the Coast Guard has issued temporary deviations requiring 24 hours advance notice to open for the three drawbridges between Lock and Dam No. 14, mile 493.3, and Lock and Dam No. 10, mile 615.1, on the Upper Mississippi River. The temporary deviations allowed the bridge owners to perform preventive maintenance during the winter season when there is less impact on navigation. Most recently, the temporary deviations for 2015 were published in the Federal Register in December, 2015 as follows: “Drawbridge Operation Regulation; Upper Mississippi River, Clinton, IA” and “Drawbridge Operation Regulation; Upper Mississippi River, Dubuque, IA” both published on December 4, 2015 (80 FR 75811); and “Drawbridge Operation Regulation; Upper Mississippi River, Sabula IA” published on December 21, 2015 (80 FR 79260). The local mariners in this area have complied with these 24-hour advance notice deviations. Through this rule, under the authority in 33 U.S.C. 499 and 33 CFR 117.8, the Coast Guard is proposing to make these temporary deviations part of a permanent regulation. The Coast Guard proposes to do this by including the bridges between Lock and Dam No. 14 and Lock and Dam No. 10 in the regulation for specific requirements under 33 CFR 117.671(a), allowing the bridges to open on signal if at least 24 hours advance notice is given between on/or about December 15 through the last day of February each year. Through the same authorities, this rule proposes an amendment to 117.671(a) and (b) to change the beginning date for the special operating schedules for all drawbridges listed under this regulation.

    The purpose of this proposed rulemaking is to eliminate the need for bridge owners to request a temporary deviation each year for the winter season in order to perform preventative maintenance that is essential to the safe operation for the drawbridges. Additionally, the proposed date change would allow flexibility in when to begin the special operating schedules each year based on the arrival of winter weather.

    There are three bridges affected by this proposed change. The Clinton Railroad Drawbridge, mile 518.0, at Clinton, IA, provides a vertical clearance of 18.7 feet above normal pool in the closed-to-navigation position, the Sabula Railroad Drawbridge, mile 535.0, at Sabula, IA, provides a vertical clearance of 18.1 feet above normal pool in the closed-to-navigation position, and the Illinois Central Railroad Drawbridge, mile 579.9, at Dubuque, IA, provides a vertical clearance of 19.9 feet above normal pool in the closed-to-navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft and will not be significantly impacted.

    III. Discussion of Proposed Rule

    This proposed rulemaking would change the operating schedule for three bridges by amending the regulations governing the Upper Mississippi River drawbridge operating requirements under 33 CFR 117.671(a) to include these bridges. Currently, this special operating schedule applies to the draws of all bridges on the Upper Mississippi River from Lock and Dam No. 10, mile 615.1 to Lock and Dam No. 2, mile 815.2. As proposed, the special operating schedule would be amended to include the draws of three additional bridges located between Lock and Dam No. 14, mile 493.3 to Lock and Dam No. 10, mile 615.1. This proposed rule would also change the language of 117.671(a) and (b) to begin the special operating schedules on or about December 15 each year instead of on December 15 each year. A notice of enforcement would be issued each year indicating the start date for the special operating schedule. The bridges that would be included in this amended special local regulation are the Clinton Railroad Drawbridge, mile 518.0, at Clinton, IA, the Sabula Railroad Drawbridge, mile 535.0, at Sabula, IA, and the Illinois Central Railroad Drawbridge, mile 579.9, at Dubuque, IA. Currently these bridges open on signal. This change would require the bridges to open on signal if at least 24 hours advance notice is given beginning on or about December 15 and lasting through the last day of February each year.

    Winter conditions, such as ice on the Upper Mississippi River, coupled with annual closure of various lock and dams between mile 493.3 and 615.1, will preclude any significant navigation demands for the drawspan openings. There are no alternate routes for vessels transiting this section of the Upper Mississippi River and the bridges cannot open in case of emergency during preventative maintenance operations; the drawbridges would open if at least 24 hours advance notice is given. The regulatory text and changes we are proposing appear at the end of this document.

    IV. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the availability for vessels to transit the bridge provided advanced notice is given. Moreover, the advanced notice requirement will be during the winter months, which is a time of year when vessel traffic is at its lowest as has been done in past years utilizing temporary deviations to provide for the change in bridge openings.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

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

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

    C. Collection of Information

    This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

    D. Federalism and Indian Tribal Government

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction.

    Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

    Documents mentioned in this notice, 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.

    List of Subjects in 33 CFR Part 117

    Bridges.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

    PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority:

    33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

    2. Revise § 117.671 to read as follows:
    § 117.671 Upper Mississippi River.

    (a) The draws of all bridges between Lock and Dam No. 14, mile 493.3, and Lock and Dam No. 2, mile 815.2, shall open on signal; except that, from on or about December 15 through the last day of February, the draws shall open on signal if at least 24 hours notice is given.

    (b) The draws of all bridges between Lock and Dam No. 2, mile 815.2 and Lock and Dam No. 1, mile 847.6, shall open on signal; except that, from on or about December 15 through the last day of February, the draws shall open on signal if at least 12 hours notice is given.

    Dated: December 22, 2016. D.R. Callahan, Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
    [FR Doc. 2016-31893 Filed 1-3-17; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-1019] RIN 1625-AA00 Safety Zone; Apra Harbor, Guam AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to revise the existing safety zones currently in effect at Naval Wharf Kilo in Apra Outer Harbor, Guam, by adding a 500-yard permanent safety zone, hereinafter referred to as Safety Zone D, to provide a buffer between the explosives regularly handled on Naval Wharf Kilo, and the general public and maritime operators. The addition of Safety Zone D would also reduce the frequency of enforcement of Safety Zones A and B. This action also eliminates from the regulation the requirement to post a sign when Safety Zones A or B are being enforced; during such enforcement periods, notification will occur via a slight modification of the displayed visual indicators already codified in the existing regulation as well as via a broadcast notice to mariners. This rulemaking will better meet the needs of the community and reduce the frequency that restrictions must be imposed through the addition of a less restrictive permanent safety zone, thereby enhancing the safe and efficient use of Apra Outer Harbor Channel in the vicinity of Naval Wharf Kilo. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before February 21, 2017. Requests for public meetings must be received by the Coast Guard on or before January 30, 2017.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-1019 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email Chief Kristina Gauthier, Sector Guam Waterways Management Division, U.S. Coast Guard; telephone 671-255-4866, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

    In 1990, Safety Zone B was established around the newly constructed Naval Wharf Kilo. On February 10, 2015, the Coast Guard amended Apra Harbor safety zone regulation in 33CFR 165.1401 to remove the 680-yard permanent safety zone around Naval Wharf Kilo and add two intermittent safety zones, Safety Zones A and B, with arcs of 1,000 and 1,400 yards radius, respectively. Over the past 21 plus months, the Coast Guard has evaluated the effect of these changes and their impact on the waters in and around Naval Wharf Kilo. Based on this evaluation, the Coast Guard has determined that an additional amendment to 33 CFR 165.1401 providing a 500-yard permanent safety zone around Naval Wharf Kilo is necessary to enhance the safety of the waterway and reduce adverse impacts to the maritime community and general public. This amendment will also reduce the frequency of enforcement of Safety Zones A and B and eliminate from the regulation the requirement to post a sign during the enforcement periods of Safety Zones A or B; during such enforcement periods notification will occur via a slight modification of the displayed visual indicators already codified in the existing regulation as well as via a broadcast notice to mariners.

    The purpose of this rulemaking is to ensure the safety of people and vessels in the navigable waters of Apra Outer Harbor within a 500-1,400 yard radius of Naval Wharf Kilo before, during, and after wharf operations. The Coast Guard proposes this rulemaking pursuant to its authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP proposes to amend 33 CFR 165.1401 to add Safety Zone D, a 500-yard permanent safety zone at Naval Wharf Kilo, to provide a buffer between the explosives regularly handled on Naval Wharf Kilo, and the general public and marine operators. Safety Zone D will greatly reduce the enforcement periods of Safety Zones A and B. Safety zones A and B will be enforced when the COTP determines that reasonable risks to the public exist that may be minimized through zone enforcement. Notification of enforcement of Safety Zones A will be provided via a red (BRAVO) flag by day or single red light by night. Notification of enforcement of Safety Zone B will be provided via 2 red (BRAVO) flags by day or 2 red lights by night. When Safety Zone A or B is enforced, the COTP will also provide notification via a broadcast notice to mariners. Signs stating “Safety Zone A” and “Safety Zone B,” respectively, will not be posted. During enforcement of any safety zone, no vessel or person may enter the zone without the express permission from the COTP or his designated representative. The proposed regulatory amendments appear at the end of this document.

    IV. Regulatory Analyses

    This proposed rule was developed after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and executive orders and we discuss first amendment rights of protestors.

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zones. The implementation of a 500-yard safety zone around Naval Wharf Kilo will drastically minimize the number of days that vessel traffic will be impacted under current parameters for activation of Safety Zone A. Vessel traffic will continue to be permitted to pass through Safety Zones A and B with the permission of the Captain of the Port. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zones.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the re-establishment of a permanent safety zone around Naval Wharf Kilo and the clarification of visual indicators utilized during the active implementation of Safety Zones A and B. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    We plan to hold a public meeting to receive oral comments on this NPRM and will announce the date, time, and location in a separate document published in the Federal Register. If you signed up for docket email alerts mentioned in the paragraph above, you will receive an email notice when the public meeting notice is published and placed in the docket.

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. In § 165.1401, add paragraph (a)(3) and revise paragraph (b) to read as follows:
    § 165.1401 Apra Harbor, Guam—safety zones.

    (a) * * *

    (3) The following is designated Safety Zone D: The waters of Apra Outer Harbor encompassed within an arc of 500 yards radius centered at the center of Naval Wharf Kilo, located at 13 degrees 26′44.5″ N. and 144 degrees 37′50.7″ E. (Based on World Geodetic System 1984 Datum).

    (b) Regulations. (1) Safety Zone A, described in paragraph (a) of this section, will only be enforced when Coast Guard Sector Guam issues a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and Naval Wharf Kilo, and a vessel berthed at Naval Wharf Kilo, is displaying a red (BRAVO) flag by day or a red light by night.

    (2) Safety Zone B described in paragraph (a) of this section will only be enforced when Coast Guard Sector Guam issues a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and Naval Wharf Kilo, and a vessel berthed at Naval Wharf Kilo, is displaying 2 red (BRAVO) flags by day or 2 red lights by night.

    (3) Safety Zone D is permanent and will be enforced at all times.

    (4) Under general regulations in § 165.23, during periods of enforcement, entry into the Safety Zones A and B as described in paragraph (a) of this section, is prohibited unless expressly authorized by the Captain of the Port, Guam or a designated representative. Entry into Safety Zone D is prohibited at all times unless expressly authorized by the Captain of the Port, Guam or a designated representative.

    Dated: December 5, 2016. James B. Pruett, Captain, U.S. Coast Guard, Captain of the Port, Guam.
    [FR Doc. 2016-31894 Filed 1-3-17; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2016-0479; FRL-9957-60-Region 5] Air Plan Approval; Ohio; Redesignation of the Ohio Portion of the Cincinnati-Hamilton, OH-IN-KY Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to redesignate the Ohio portion of the Cincinnati-Hamilton, OH-IN-KY, nonattainment area (hereafter, “the Cincinnati-Hamilton area”) to attainment for the 1997 fine particulate matter (PM2.5) annual national ambient air quality standards (NAAQS or standard). The Ohio portion of the Cincinnati-Hamilton area includes Butler, Clermont, Hamilton, and Warren Counties. Because EPA has determined that the Cincinnati-Hamilton area is attaining the annual PM2.5 standard, EPA is proposing to redesignate the area to attainment and also proposing several additional related actions. EPA is proposing to approve the Reasonably Available Control Measures (RACM)-Reasonably Available Control Technology (RACT) portion of Ohio's Cincinnati-Hamilton area attainment plan SIP revision as providing adequate RACM/RACT. EPA is proposing to approve an update to the Ohio state implementation plan (SIP), by updating the state's approved plan for maintaining the 1997 annual PM2.5 NAAQS through 2027. EPA previously approved the base year emissions inventory for the Cincinnati-Hamilton area, and is proposing to approve Ohio's updated emission inventory which includes emission inventories for volatile organic compounds (VOCs) and ammonia. Ohio's approved maintenance plan submission includes a budget for the mobile source contribution of PM2.5 and nitrogen oxides (NOX) to the Cincinnati-Hamilton Ohio PM2.5 area for transportation conformity purposes, which EPA is proposing to approve and update. EPA is proposing to take these actions in accordance with the Clean Air Act (CAA) and EPA's implementation rule regarding the 1997 PM2.5 NAAQS.

    DATES:

    Comments must be received on or before February 3, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2016-0479 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7947, [email protected]

    SUPPLEMENTARY INFORMATION:

    This supplementary information section is arranged as follows:

    Contents I. Background II. What are the criteria for redesignation to attainment? III. What is EPA's analysis of the state's request? 1. Attainment 2. Section 110 and Part D Requirements, and Approval SIP under Section 110(k) (Section 107(d)(3)(E)(ii) and (v)) 3. Permanent and Enforceable Reductions in Emissions (Section 107(d)(3)(E)(iii)) 4. Maintenance Plan Pursuant to Section 175A of the CAA (Section 107(d)(3)(E)(iv)) 5. Motor Vehicle Emissions Budget (MVEBs) for the Mobile Source Contribution to PM2.5 and NOX 6. Comprehensive Emissions Inventory IV. EPA's Proposed Actions V. Statutory and Executive Order Reviews I. Background

    The first air quality standards for PM2.5 were promulgated on July 18, 1997, at 62 FR 38652. EPA promulgated an annual standard at a level of 15 micrograms per cubic meter (µg/m3) of ambient air, based on a three-year average of the annual mean PM2.5 concentrations at each monitoring site.

    On January 5, 2005, at 70 FR 944, EPA published air quality area designations for the 1997 annual PM2.5 standard based on air quality data for calendar years 2001-2003. In that rulemaking, EPA designated the Cincinnati-Hamilton area (the Ohio portion being Butler, Clermont, Hamilton, and Warren Counties) as nonattainment for the 1997 annual PM2.5 standard.

    In this proposed redesignation, EPA takes into account two decisions of the D.C. Circuit. On August 21, 2012, in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), the D.C. Circuit vacated and remanded the Cross State Air Pollution Rule (CSAPR) and ordered EPA to continue administering the Clean Air Interstate Rule (CAIR) “pending . . . development of a valid replacement.” EME Homer City at 38. The D.C. Circuit denied all petitions for rehearing in the case on January 24, 2013. In the second decision, on January 4, 2013, the D.C. Circuit remanded to EPA the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” final rule (73 FR 28321, May 16, 2008). Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013).

    II. What are the criteria for redesignation to attainment?

    The CAA sets forth the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided that: (1) The Administrator determines that the area has attained the applicable NAAQS based on current air quality data; (2) the Administrator has fully approved an applicable SIP for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable emission reductions resulting from implementation of the applicable SIP, Federal air pollution control regulations, or other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA; and (5) the state containing the area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

    III. What is EPA's analysis of the state's request?

    EPA is proposing to redesignate the Ohio portion of the Cincinnati-Hamilton area to attainment of the 1997 annual PM2.5 NAAQS, and is proposing to approve updates to Ohio's maintenance plan for the area and other related SIP revisions. EPA is also proposing to approve Ohio's RACM/RACT analysis. The bases for these proposed actions follow.

    1. Attainment

    In accordance with section 179(c) of the CAA, 42 U.S.C. 7509(c) and 40 CFR 51.1004(c), EPA is proposing to determine that the Cincinnati-Hamilton area has attained the 1997 annual PM2.5 NAAQS. This proposed determination is based upon complete, quality-assured, and certified ambient air monitoring data for the 2013-2015 monitoring period that shows this area has monitored attainment of the 1997 PM2.5 NAAQS.

    Under EPA's regulations at 40 CFR 50.7, the annual primary and secondary PM2.5 standards are met when the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, appendix N, is less than or equal to 15.0 µg/m3 at all relevant monitoring sites in the area.

    EPA has reviewed the ambient air quality monitoring data in the Cincinnati-Hamilton area, consistent with the provisions of 40 CFR part 50, appendix T. EPA's review focused on data recorded in the EPA Air Quality System (AQS) database for the Cincinnati-Hamilton area for PM2.5 nonattainment area from 2013-2015.

    The Cincinnati-Hamilton area has nine monitors located in Butler (OH), Hamilton (OH), and Campbell (KY) Counties that reported design values from 2013-2015 for PM2.5 that ranged from 9.5 to 11.2 μg/m3 for the 1997 annual standard. The data are summarized shown in Table 1 below.

    There are three additional monitor sites in Butler County that are not listed in Table 1 because the data from these sites are not used for redesignation purposes. On October 31, 2014, EPA determined that site 39-017-0020 was located within the immediate area of several facilities, and that the monitoring data from the site would no longer be compared to the annual PM2.5 standard. On February 5, 2015, monitor site 39-017-0022 in Bulter County became active, but since it is a “special purpose monitor”, it cannot be used for comparison to the NAAQS before 24 months, per 40 CFR 58.20. Additionally, a new monitor site, 39-017-0016, became active in 2016 but it was not included in Ohio's analysis because it does not yet have three years of valid data.

    All monitors in the Cincinnati-Hamilton area recorded complete data in accordance with criteria set forth by EPA in 40 CFR part 50 appendix N, where a complete year of air quality data comprises four calendar quarters, with each quarter containing data from at least 75% capture of the scheduled sampling days. Data available are considered to be sufficient for comparison to the NAAQS if three consecutive complete years of data exist. Recently the state certified data for 2013-2015 show the area continues to attain the standard. Partial 2016 data for all relevant monitors also support a finding that the area continues to attain the standard.

    Table 1—Annual PM2.5 Design Values for the Cincinnati-Hamilton Area for 2013-2015 County/Site Annual design values (μg/m3) Year 2013 2014 2015 Average 2013-2015 Butler, OH: 39-017-0003 11.1 11.3 10.3 10.9 39-017-0016 10.7 10.7 9.5 10.3 39-017-0019 11 11.2 10.2 10.8 Hamilton, OH: 39-061-0006 10.1 10.3 9.3 9.9 39-061-0014 11.6 11.3 10.7 11.2 39-061-0040 10.6 10.4 9.2 10.1 39-061-0042 11.5 11.2 10.1 11 39-061-0010 10.5 10.4 9.2 10 Campbell, KY: 21-037-3002 9.6 9.7 9.4 * 9.5 * less than 75% capture in one quarter at the primary monitor, but substitution using a secondary monitor was completed resulting in an AQS 'valid' design value.

    Based on the information summarized above, EPA has found that the Cincinnati-Hamilton area has attained the 1997 annual PM2.5 NAAQS.

    2. Section 110 and Part D Requirements, and Approval SIP Under Section 110(k) (Section 107(d)(3)(E)(ii) and (v))

    We have determined that, under section 110 of the CAA (general SIP requirements), Ohio has met all currently applicable SIP requirements for purposes of redesignation for the Cincinnati-Hamilton area. We are also proposing to find, in accordance with section 107(d)(3)(E)(v), that the Ohio submittal meets all SIP requirements currently applicable for purposes of redesignation under part D of title I of the CAA. In addition, we are proposing to find, in accordance with section 107(d)(3)(E)(ii), that all applicable requirements of the Ohio SIP for purposes of redesignation have been approved. As discussed above, EPA previously approved Ohio's 2005 emissions inventory as meeting the section 172(c)(3) comprehensive emissions inventory requirement.

    In making these proposed determinations, we have ascertained which SIP requirements are applicable for purposes of redesignation, and concluded that the Ohio SIP includes measures meeting those requirements and that they are fully approved under section 110(k) of the CAA.

    a. Section 110 General SIP Requirements

    Section 110(a) of title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a state must have been adopted by the state after reasonable public notice and hearing, and, among other things, must: Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor ambient air quality; provide for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; include provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, NSR permit programs; include criteria for stationary source emission control measures, monitoring, and reporting; include provisions for air quality modeling; and provide for public and local agency participation in planning and emission control rule development.

    Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. EPA believes that the requirements linked with a particular nonattainment area's designation are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, we believe that these requirements should not be construed as the applicable requirements for purposes of redesignation.

    Further, we believe that the other section 110 elements described above that are not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. A state remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements that are linked with a particular area's designation are the relevant measures which we may consider in evaluating a redesignation request. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996) and (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio 1-hour ozone redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation (66 FR 50399, October 19, 2001).

    We have reviewed the Ohio SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of Ohio's SIP addressing section 110 requirements (including provisions addressing particulate matter), at 40 CFR 52.1870.

    On December 5, 2007, Ohio made a submittal addressing “infrastructure SIP” elements required under CAA section 110(a)(2). EPA proposed approval of the December 5, 2007, submittal on April 28, 2011, at 76 FR 23757 and published final approval on July 13, 2011, at 76 FR 41075.

    The remaining parts of the infrastructure SIPs required by section 110(a)(2) are not relevant to this redesignation, and are statewide requirements that are not linked to the PM2.5 nonattainment status of the Cincinnati-Hamilton area. Therefore, EPA believes that these SIP elements are not applicable requirements for purposes of review of the state's PM2.5 redesignation request.

    b. Part D Requirements

    EPA has determined that, upon approval of the base year emissions inventories discussed in section III.6 of this rulemaking, the Ohio SIP will meet the applicable SIP requirements for the Cincinnati-Hamilton area applicable for purposes of redesignation under part D of the CAA. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Subpart 4 of part D, found in sections 189 of the CAA, sets forth nonattainment requirements applicable for particulate matter nonattainment areas.

    (i) RACM/RACT Requirements Under Section 172(c)(1)

    Section 172(c)(1) requires that each attainment plan “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from the existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology), and shall provide for attainment of the national primary ambient air quality standards.” The PM2.5 Implementation Rule (72 FR 20586) requires that the subpart 1 RACM portion of the attainment plan SIP revision include the list of potential measures that a state considered and additional information sufficient to show that the state has met all requirements for the determination of what constitutes RACM in a specific nonattainment area. See 40 CFR 51.1010(a). Any measures that are necessary to meet these requirements that are not already either federally promulgated, part of the SIP, or otherwise creditable in SIPs must be submitted in enforceable form as part of a state's attainment plan SIP revision for the area.

    In 1972, 1980, and 1991, Ohio promulgated RACM rules for particulate emissions from stationary sources. Ohio also has RACT rules found in OAC Chapter 3745-17. Lake Michigan Air Directors Consortium (LADCO), in consultation with two contractors, performed a series of studies exploring control measures for reducing both ozone precursors and PM2.5 precursors in Ohio, Illinois, Indiana, Michigan, and Wisconsin. Photochemical modeling was then conducted to assess the air quality benefits of the candidate control measures. In its attainment demonstration submitted on July 18, 2008, Ohio demonstrated that attainment would be achieved in the Cincinnati-Hamilton area by 2009, based on the modeling conducted by the LADCO project team. Because of the projected 2009 attainment date, it would not have been reasonably possible or practicable for Ohio to develop RACM/RACT requirements, promulgate regulations and implement a control program prior to 2009. Ohio concluded that its RACM/RACT analysis, based on LADCO modeling, demonstrates that current control measures in Ohio satisfy RACM/RACT for the 1997 annual PM2.5 standard.

    EPA has reviewed Ohio's RACM/RACT analysis and agrees that it indicates that no other reasonably available measures were available, or necessary, to attain or advance attainment of the standard. Because Ohio has demonstrated with modeling that no further control measures would advance the attainment date in the area, EPA is proposing to approve Ohio's RACM/RACT portion of the attainment plan SIP revision as providing adequate RACM/RACT consistent with the provisions of 40 CFR 51.1010(b).

    EPA previously redesignated the Cincinnati-Hamilton area to attainment for the 1997 annual PM2.5 standard, predicated in part on a finding that the RACM/RACT requirement (interpreted as reflecting those reasonable measures needed to attain the standard) was not an applicable requirement for purposes of redesignation of areas already meeting the standard. EPA has long interpreted that subpart 1 nonattainment planning requirements, including RACM, are not “applicable for purposes of section 107(d)(3)(E)(ii) and (v) when an area is attaining the NAAQS, and, therefore, need not be approved into the SIP before EPA can redesignate the area. See 76 FR 80258.

    On July 14, 2015, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) issued an opinion in Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015), vacating EPA's redesignation of the Indiana and Ohio portions of the Cincinnati-Hamilton area to attainment for the 1997 PM2.5 NAAQS on the basis that EPA had not approved subpart 1 RACM for the area into the SIP.1 The Sixth Circuit vacated the redesignation of the Ohio and Indiana portion of the area based on its view that RACM/RACT must be considered an applicable requirement for designation purposes. Consistent with that ruling, EPA is now finding that Ohio has satisfied this applicable requirement.

    1 The Court issued its initial decision in the case on March 18, 2015, and subsequently issued an amended opinion on July 14 after appeals for rehearing en banc and panel rehearing had been filed. The amended opinion revised some of the legal aspects of the Court's analysis of the relevant statutory provisions (section 107(d)(3)(E)(ii) and section 172(c)(1)), but the overall holding of the opinion was unaltered. On March 28, 2016, the Supreme Court denied a petition for certiorari from Ohio requesting review of the Sixth Circuit's decision.

    (ii) Other Section 172 Requirements

    For purposes of evaluating this redesignation request, the applicable section 172 SIP requirements for the Cincinnati-Hamilton area are contained in sections 172(c)(1)-(9). A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).

    Under section 172, states with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements. However, pursuant to 40 CFR 51.1004(c), EPA's determination that the area has attained the 1997 annual PM2.5 standard suspends the requirement to submit certain planning SIPs related to attainment, including: Attainment demonstration requirements, the RFP and attainment demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA.

    As a result, the only remaining requirements under section 172 to be considered are the emissions inventory requirement under section 172(c)(3), and the RACM/RACT requirement of section 172(c)(1) per the 6th circuit decision. As discussed previously, EPA is proposing to approve the VOCs and ammonia emissions inventories that Ohio submitted as satisfying the section 172(c)(3) requirement, and existing control measures as satisfying RACM/RACT requirements under section 172(c)(1).

    No SIP provisions applicable for redesignation of the Cincinnati-Hamilton area are currently disapproved, conditionally approved, or partially approved. Ohio currently has a fully approved SIP for all requirements, as applicable for purposes of redesignation under the Sixth Circuit's Sierra Club decision.

    Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of RACM as expeditiously as practicable and to provide for attainment of the primary NAAQS. EPA interprets this requirement to impose a duty on all states to consider all available control measures for all nonattainment areas and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration.

    As noted above in the previous section, the Sixth Circuit concluded that “a State seeking redesignation `shall provide for the implementation' of RACM/RACT, even if those measures are not strictly necessary to demonstrate attainment with the PM2.5 NAAQS. . . . If a State has not done so, EPA cannot `fully approve[]' the area's SIP, and redesignation to attainment status is improper.” Sierra Club, 793 F.3d at 670.

    EPA is adhering to the Sixth Circuit's decision. Ohio has demonstrated that no further control measures would be necessary to advance the attainment date in the Cincinnati-Hamilton area, and EPA is proposing to approve existing control measures as satisfying RACM/RACT requirements under section 172(c)(1). A further discussion on RACM/RACT requirements can be found in the previous section entitled “RACM/RACT Requirements Under Section 172(c)(1).”

    The reasonable further progress (RFP) requirement under section 172(c)(2) is defined as progress that must be made toward attainment. This requirement is not relevant for purposes of the Cincinnati-Hamilton redesignation because the area has monitored attainment of the 1997 annual PM2.5 NAAQS. (General Preamble, 57 FR 13564). See also 40 CFR 51.918. The requirement to submit the section 172(c)(9) contingency measures is similarly not applicable for purposes of redesignation. Id.

    Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. Ohio submitted a 2005 base year emissions inventory in the required attainment plan, and also updated the emissions inventory with VOCs and ammonia emissions from 2007. EPA previously approved the 2005 base year emissions inventory (76 FR 64825), and is proposing to approve the emissions inventory for VOCs and ammonia.

    Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Ohio's current NSR program on January 10, 2003 (68 FR 1366), but has not approved updates since that time. Nonetheless, since PSD requirements will apply after redesignation, the area need not have a fully-approved NSR program for purposes of redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Ohio has demonstrated that the Cincinnati-Hamilton area will be able to maintain the standard without part D NSR in effect; therefore, the state need not have a fully approved part D NSR program prior to approval of the redesignation request. The state's PSD program will become effective in the Cincinnati-Hamilton area upon redesignation to attainment. See rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).

    Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the standard. Because attainment has been reached, no additional measures are needed to provide for attainment.

    Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, we have found that Ohio's SIP meets the applicable requirements of section 110(a)(2) for purposes of redesignation.

    (iii) Section 176 Conformity Requirements

    Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). State transportation conformity regulations must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability, which EPA promulgated pursuant to CAA requirements.

    EPA approved Ohio's transportation conformity SIPs on March 2, 2015 (80 FR 11134). In April 2010, EPA promulgated changes to 40 CFR 51.851, eliminating the requirement for states to maintain a general conformity SIP. Following this promulgation, EPA granted Ohio's request to remove its general conformity regulations from the SIP. See 80 FR 29968. EPA confirms that Ohio has met the applicable conformity requirements under section 176.

    (iv) Subpart 4

    On January 4, 2013, in Natural Resources Defense Council v. EPA, the D.C. Circuit remanded to EPA the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” final rule (73 FR 28321, May 16, 2008) (collectively, “1997 PM2.5 Implementation Rule”). 706 F.3d 428 (D.C. Cir. 2013). The Court found that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of part D of title I of the CAA, rather than the particulate-matter-specific provisions of subpart 4 of part D of title I.

    EPA has longstanding general guidance that interprets the 1990 amendments to the CAA, making recommendations to states for meeting the statutory requirements for SIPs for nonattainment areas. See, “State Implementation Plans; General Preamble for the Implementation of Title I of the Clear Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992) (the “General Preamble”). In the General Preamble, EPA discussed the relationship of subpart 1 and subpart 4 SIP requirements, and pointed out that subpart 1 requirements were, to an extent, “subsumed by, or integrally related to, the more specific PM-10 requirements.” 57 FR 13538 (April 16, 1992). The subpart 1 requirements include, among other things, provisions for attainment demonstrations, RACM, RFP, emissions inventories, and contingency measures.

    For the purposes of this redesignation, in order to identify any additional requirements which would apply under subpart 4, we are considering the Cincinnati-Hamilton area to be a “moderate” PM2.5 nonattainment area. Under section 188 of the CAA, all areas designated nonattainment areas under subpart 4 would initially be classified by operation of law as “moderate” nonattainment areas, and would remain moderate nonattainment areas unless and until EPA reclassifies the area as a “serious” nonattainment area. Accordingly, EPA believes that it is appropriate to limit the evaluation of the potential impact of subpart 4 requirements to those that would be applicable to moderate nonattainment areas.

    Section 189(a) and (c) of subpart 4 applies to moderate nonattainment areas and includes the following: (1) An approved permit program for construction of new and modified major stationary sources (section 189(a)(1)(A)); (2) an attainment demonstration (section 189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C)); and (4) quantitative milestones demonstrating RFP toward attainment by the applicable attainment date (section 189(c)).

    The permit requirements of subpart 4, as contained in section 189(a)(1)(A), refer to and apply the subpart 1 permit provisions requirements of sections 172 and 173 to PM10, without adding to them. Consequently, EPA believes that section 189(a)(1)(A) does not itself impose for redesignation purposes any additional requirements for moderate areas beyond those contained in subpart 1.2 In any event, in the context of redesignation, EPA has long relied on the interpretation that a fully approved nonattainment new source review program is not considered an applicable requirement for redesignation, provided the area can maintain the standard with a PSD program after redesignation. A detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” See also rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).

    2 The potential effect of section 189(e) on section 189(a)(1)(A) for purposes of evaluating this redesignation is discussed below.

    With respect to the specific attainment planning requirements under subpart 4,3 when EPA evaluates a redesignation request under subpart 1 and/or 4, any area that is attaining the PM2.5 standard is viewed as having satisfied the attainment planning requirements for these subparts. For redesignations, EPA has for many years interpreted attainment-linked requirements as not applicable for areas attaining the standard. In the General Preamble, EPA stated that:

    3 I.e., attainment demonstration, RFP, RACM, milestone requirements, contingency measures.

    The requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning at that point. “General Preamble for the Interpretation of Title I of the CAA Amendments of 1990”; (57 FR 13498, 13564, April 16, 1992).

    The General Preamble also explained that:

    [t]he section 172(c)(9) requirements are directed at ensuring RFP and attainment by the applicable date. These requirements no longer apply when an area has attained the standard and is eligible for redesignation. Furthermore, section 175A for maintenance plans . . . provides specific requirements for contingency measures that effectively supersede the requirements of section 172(c)(9) for these areas. Id.

    EPA similarly stated in its September 4, 1992 Calcagni memorandum (Calcagni memorandum) that, “[t]he requirements for reasonable further progress and other measures needed for attainment will not apply for redesignations because they only have meaning for areas not attaining the standard.”

    Elsewhere in this action, EPA proposes to determine that the area has attained the 1997 annual PM2.5 standard. Under its longstanding interpretation, EPA is proposing to determine here that the area meets the attainment-related plan requirements of subparts 1 and 4. Thus, EPA is proposing to conclude that the requirements to submit an attainment demonstration under 189(a)(1)(B), a RACM determination under sections 172(c)(1) and 189(a)(1)(c), a RFP demonstration under section 189(c)(1), and contingency measure requirements under section 172(c)(9) are satisfied for purposes of evaluating the redesignation request.

    PM2.5 pollution can be emitted directly from a source (primary PM2.5) or formed secondarily through chemical reactions in the atmosphere involving precursor pollutants emitted from a variety of sources. Sulfates are a type of secondary particulate formed from SO2 emissions from power plants and industrial facilities. Nitrates, another common type of secondary particulate, are formed from combustion emissions of NOX from power plants, mobile sources, and other combustion sources.

    CAA section 189(e) specifically provides that control requirements for major stationary sources of direct PM10 shall also apply to PM10 precursors from those sources, except where EPA determines that major stationary sources of such precursors “do not contribute significantly to PM10 levels which exceed the standard in the area.”

    For a number of reasons, EPA believes that this proposed redesignation of the Cincinnati-Hamilton area is consistent with the Court's decision on this aspect of subpart 4. First, while the Court, citing section 189(e), stated that “for a PM10 area governed by subpart 4, a precursor is `presumptively regulated,' ” the Court expressly declined to decide the specific challenge to EPA's 1997 PM2.5 implementation rule provisions regarding ammonia and VOCs as precursors. The Court had no occasion to reach whether and how it was substantively necessary to regulate any specific precursor in a particular PM2.5 nonattainment area, and did not address what might be necessary for purposes of acting upon a redesignation request.

    The Cincinnati-Hamilton area has attained the standard without any specific additional controls of VOCs and ammonia emissions from any sources in the area.

    Precursors in subpart 4 are specifically regulated under the provisions of section 189(e), which requires, with important exceptions, control requirements for major stationary sources of PM10 precursors.4 As explained below, we do not believe that any additional controls of ammonia and VOCs are required in the context of this redesignation.

    4 Under either subpart 1 or subpart 4, for purposes of demonstrating attainment as expeditiously as practicable, a state is required to evaluate all economically and technologically feasible control measures for direct PM emissions and precursor emissions, and adopt those measures that are deemed reasonably available.

    In the General Preamble, EPA discusses its approach to implementing section 189(e). See 57 FR 13538-13542. With regard to precursor regulation under section 189(e), the General Preamble explicitly stated that control of VOCs under other CAA requirements may suffice to relieve a state from the need to adopt precursor controls under section 189(e) (57 FR 13542). EPA proposes to determine that Ohio has met the provisions of section 189(e) with respect to ammonia and VOCs as precursors. This proposed supplemental determination is based on our findings that: (1) The Cincinnati-Hamilton area contains no major stationary sources of ammonia, and (2) existing major stationary sources of VOCs are adequately controlled under other provisions of the CAA regulating the ozone NAAQS.5 In the alternative, EPA proposes to determine that, under the express exception provisions of section 189(e), and in the context of the redesignation of the area, which is attaining the 1997 annual PM2.5 standard, at present ammonia and VOCs precursors from major stationary sources do not contribute significantly to levels exceeding the 1997 PM2.5 standard in the Cincinnati-Hamilton area. See 57 FR 13539-42.

    5 The Cincinnati-Hamilton area has reduced VOC emissions through the implementation of various SIP approved VOC control programs and various on-road and nonroad motor vehicle control programs.

    EPA notes that its 1997 PM2.5 implementation rule provisions in 40 CFR 51.1002 were not directed at evaluation of PM2.5 precursors in the context of redesignation, but at SIP plans and control measures required to bring a nonattainment area into attainment of the 1997 annual PM2.5 NAAQS. By contrast, redesignation to attainment primarily requires the area to have already attained due to permanent and enforceable emission reductions, and to demonstrate that controls in place can continue to maintain the standard. Thus, even if we regard the Court's January 4, 2013, decision as calling for “presumptive regulation” of ammonia and VOCs for PM2.5 under the attainment planning provisions of subpart 4, those provisions do not require additional controls of these precursors for an area that already qualifies for redesignation. Nor does EPA believe that requiring Ohio to address precursors differently than it has already would result in a different redesignation outcome.

    Although, as EPA has emphasized, its consideration here of precursor requirements under subpart 4 is in the context of a redesignation to attainment, EPA's existing interpretation of subpart 4 requirements with respect to precursors in attainment plans for PM10 contemplates that states may develop attainment plans that regulate only those precursors that are necessary for purposes of attainment in the area in question, i.e., states may determine that only certain precursors need be regulated for attainment and control purposes.6 Courts have upheld this approach to the requirements of subpart 4 for PM10.7 EPA believes that application of this approach to PM2.5 precursors under subpart 4 is reasonable. Because the Cincinnati-Hamilton area has already attained the 1997 annual PM2.5 NAAQS with its current approach to regulation of PM2.5 precursors, EPA believes that, in the context of this redesignation, there is no need to revisit the attainment control strategy with respect to the treatment of precursors. Even if the Court's decision is construed to impose an obligation to consider additional precursors under subpart 4 in evaluating this redesignation request, it would not affect EPA's approval here of Ohio's request for redesignation of the Cincinnati-Hamilton area. Moreover, the state has shown, and EPA is proposing to determine, that attainment in this area is due to permanent and enforceable emissions reductions on all precursors necessary to provide for continued attainment. It follows that no further control of additional precursors is necessary. Accordingly, EPA does not view the January 4, 2013, Court decision as precluding redesignation of the Cincinnati-Hamilton area to attainment for the 1997 PM2.5 NAAQS at this time.

    6See, e.g., “Approval and Promulgation of Implementation Plans for California—San Joaquin Valley PM-10 Nonattainment Area; Serious Area Plan for Nonattainment of the 24-Hour and Annual PM-10 Standards,” 69 FR 30006 (May 26, 2004) (approving a PM10 attainment plan that impose controls on direct PM10 and NOX emissions and did not impose controls on SO2, VOC, or ammonia emissions).

    7See, e.g., Assoc. of Irritated Residents v. EPA et al., 423 F.3d 989 (9th Cir. 2005).

    EPA concludes that the area has met all applicable requirements for purposes of redesignation in accordance with section 107(d)(3)(E)(ii) and (v).

    c. Fully Approved Applicable SIP Under Section 110(k) of the CAA

    Upon final approval of Ohio's comprehensive VOCs and ammonia emissions inventories, EPA will have fully approved the Ohio SIP for the Cincinnati-Hamilton area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (See page 3 of the Calcagni memorandum; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25413, 25426 (May 12, 2003). Since the passage of the CAA of 1970, Ohio has adopted and submitted, and EPA has fully approved, provisions addressing various required SIP elements under particulate matter standards. In this action, EPA is approving Ohio's VOCs and ammonia comprehensive emissions inventories for the Cincinnati-Hamilton area as meeting the requirement of section 172(c)(3) of the CAA.

    3. Permanent and Enforceable Reductions in Emissions (Section 107(d)(3)(E)(iii))

    EPA believes that Ohio has demonstrated that the observed air quality improvement in the Cincinnati-Hamilton area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIPs, Federal measures, and other state-adopted measures.

    In making this demonstration, Ohio has calculated the change in emissions between 2005, one of the years used to designate the area as nonattainment, and 2008, one of the years the Cincinnati-Hamilton area monitored attainment. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that the Cincinnati-Hamilton area and contributing areas have implemented, as discussed below.

    a. Permanent and Enforceable Controls Implemented

    The following is a discussion of permanent and enforceable measures that have been implemented in the area:

    i. Federal Emission Control Measures

    Reductions in direct emissions of PM2.5 and in emissions of PM2.5 precursors have occurred statewide and in upwind areas as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include the following.

    Tier 2 Emission Standards for Vehicles and Gasoline Sulfur Standards. EPA finalized this Federal rule in February 2000. These emission control requirements result in lower NOX and SO2 emissions from new cars and light duty trucks, including sport utility vehicles. Emission standards established under EPA's rules became effective between 2004 and 2009. EPA has estimated that, emissions of NOX from new vehicles have decreased by the following percentages: Passenger cars (light duty vehicles)—77 percent; light duty trucks, minivans, and sports utility vehicles—86 percent; and, larger sports utility vehicles, vans, and heavier trucks—69 to 95 percent. EPA expects fleet-wide average emissions to decline by similar percentages as new vehicles replace older vehicles. The Tier 2 standards also reduced the sulfur content of gasoline by up to 90 percent. VOCs emissions reductions will be approximately 12 percent for passenger cars; 18 percent for smaller SUVs, light trucks, and minivans; and 15 percent for larger SUVs, vans, and heavier trucks.

    Heavy-Duty Diesel Engine Rule. EPA issued this rule in July 2000. This rule, which was phased in between 2004 and 2007, includes standards limiting the sulfur content of diesel fuel. This rule is estimated to reduce NOX emissions from diesel trucks and buses by approximately 40 percent. The level of sulfur in highway diesel fuel is also estimated to have dropped by 97 percent by mid-2006 due to this rule.

    Nonroad Diesel Rule. In May 2004, EPA promulgated a new rule for large nonroad diesel engines, such as those used in construction, agriculture, and mining equipment, to be phased in between 2008 and 2014. Prior to 2006, nonroad diesel fuel averaged approximately 3,000 ppm sulfur. This rule limited nonroad diesel sulfur content to 15 ppm by 2010. It is estimated that compliance with this rule has cut emissions from nonroad diesel engines by more than 90%. This rule achieved some emission reductions by 2008 and was fully implemented by 2010. The reduction in fuel sulfur content also yielded an immediate reduction in sulfate particle emissions from all diesel vehicles.

    ii. Control Measures in Contributing Areas

    Given the significance of sulfates and nitrates in the Cincinnati-Hamilton area, the area's air quality is strongly affected by regulated emissions from power plants.

    NO X SIP Call. On October 27, 1998 (63 FR 57356), EPA issued a NOX SIP Call requiring the District of Columbia and 22 states to reduce emissions of NOX. Affected states were required to comply with Phase I of the SIP Call beginning in 2004, and Phase II beginning in 2007. Emission reductions resulting from regulations developed in response to the NOX SIP Call are permanent and enforceable.

    CAIR and CSAPR. EPA proposed CAIR on January 30, 2004, at 69 FR 4566, promulgated CAIR on May 12, 2005, at 70 FR 25162, and promulgated associated Federal Implementation Plans (FIPs) on April 28, 2006, at 71 FR 25328, in order to reduce SO2 and NOX emissions and improve air quality in many areas across the Eastern United States. However, on July 11, 2008, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit or Court) issued its decision to vacate and remand both CAIR and the associated CAIR FIPs in their entirety (North Carolina v. EPA, 531 F.3d 836 (D.C. Cir. 2008)). EPA petitioned for a rehearing, and the Court issued an order remanding CAIR and the CAIR FIPs to EPA without vacatur (North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008)). The Court, thereby, left CAIR in place in order to “temporarily preserve the environmental values covered by CAIR” until EPA replaced it with a rule consistent with the Court's opinion (id. at 1178). The Court directed EPA to “remedy CAIR's flaws” consistent with the July 11, 2008, opinion, but declined to impose a schedule on EPA for completing this action (id).

    On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR and, thus, to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR requires substantial reductions of SO2 and NOX emissions from electric generating units (EGUs) in 28 states in the eastern United States. As a general matter, because CSAPR is CAIR's replacement, emissions reductions associated with CAIR will for most areas be made permanent and enforceable through implementation of CSAPR.

    Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on August 21, 2012, the court issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014).

    On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015) (EME Homer City II). The litigation over CSAPR ultimately delayed implementation of that rule for three years, from January 1, 2012, when CSAPR's cap-and-trade programs were originally scheduled to replace the CAIR cap-and-trade programs, to January 1, 2015. CSAPR's Phase 2 budgets were originally promulgated to begin on January 1, 2014, and are now scheduled to begin on January 1, 2017. As part of the remand, the D.C. Circuit found the Ohio 2014 NOX budget was invalid, stating that based on EPA's own data, Ohio made no contribution to downwind states' nonattainment. On November 16, 2015, EPA proposed the CSAPR Update Rule (80 FR 75706) which, when finalized, will establish permanent and enforceable reduction through revised NOX ozone season budgets for Ohio.

    Because the emission reduction requirements of CAIR were enforceable through the 2011 control period, and because CSAPR has been promulgated to address the requirements previously addressed by CAIR and will achieve similar or greater reductions once finalized, EPA has determined that the EGU emission reductions that helped lead to attainment in the Cincinnati-Hamilton area can now be considered permanent and enforceable and that the requirement of CAA section 107(d)(3)(E)(iii) has been met.

    b. Emission Reductions

    Ohio developed an emissions inventory for NOX, direct PM2.5, and SO2 for 2005, one of the years used to designate the area as nonattainment, and 2008, one of the years the Cincinnati-Hamilton area monitored attainment of the standard.

    Emissions of SO2 and NOX from EGUs were derived from EPA's Clean Air Market's acid rain database. These emissions reflect Ohio's NOX emission budgets resulting from EPA's NOX SIP call. The 2008 emissions from EGUs reflect Ohio's emission caps under CAIR. All other point source emissions were obtained from Ohio's source facility emissions reporting.

    Area source emissions for the Cincinnati-Hamilton area for 2005 were taken from periodic emissions inventories.8 These 2005 area source emission estimates were extrapolated to 2008. Source growth factors were supplied by LADCO. These growth factors were based on the U.S Department of Commerce Bureau of Economic Analysis (BEA) growth factors, with some updated local information.

    8 Periodic emission inventories are derived by states every three years and reported to EPA. These periodic emission inventories are required by the Federal Consolidated Emissions Reporting Rule, codified at 40 CFR Subpart A. EPA revised these and other emission reporting requirements in a final rule published on December 17, 2008, at 73 FR 76539.

    Nonroad mobile source emissions were extrapolated from nonroad mobile source emissions reported in EPA's 2005 National Emissions Inventory (NEI). Contractors were employed by LADCO to estimate emissions for commercial marine vessels and railroads.

    On-road mobile source emissions were calculated using EPA's mobile source emission factor model, MOVES2010, in conjunction with transportation model results developed by the Ohio-Kentucky-Indiana Regional Council of Governments (OKI).

    All emissions estimates discussed below were documented in the submittals and appendices to Ohio's redesignation request submittal of July 22, 2016. For these data and additional emissions inventory data, the reader is referred to EPA's digital docket for this rule, http://www.regulations.gov, for docket number EPA-R05-OAR-2016-0479, which includes a digital copy of Ohio's submittal.

    Emissions data in tons per year (tpy) for the Cincinnati-Hamilton area are shown in Tables 2, 3, and 4 below.

    Table 2—Comparison of 2005 Emissions From the Nonattainment Year and 2008 Emissions for an Attainment Year for NOX in the Cincinnati-Hamilton Area Sector 2005 2008 Net change
  • (2008-2005)
  • EGU Point 55,930.44 46,853.89 −9,076.55 Non-EGU 10,371.70 9,790.50 −581.20 Non-road 12,417.57 10,561.92 −1,855.65 Other (Area) 7,810.74 7,975.67 164.93 Marine, Air, and Rail (MAR) 9,352.60 9,052.95 −299.65 On-road 71,919.89 64,471.22 −7,448.67 Total 167,802.94 148,706.15 −19,096.79
    Table 3—Comparison of 2005 Emissions From the Nonattainment Year and 2008 Emissions for an Attainment Year for SO2 in the Cincinnati-Hamilton Area Sector 2005 2008 Net change
  • (2008-2005)
  • EGU Point 218,395.56 98,334.17 −120,061.39 Non-EGU 15,532.09 13,483.92 −2,048.17 Non-road 1,057.16 416.87 −640.29 Area 3,494.39 3,520.77 26.38 MAR 1,092.58 982.82 −109.76 On-road 392.00 277.59 −114.41 Total 239,963.78 117,016.14 −122,947.64
    Table 4—Comparison of 2005 Emissions From the Nonattainment Year and 2008 Emissions for an Attainment Year for Direct PM2.5 in the Cincinnati-Hamilton Area Sector 2005 2008 Net change
  • (2008-2005)
  • EGU Point 2,062.91 1,633.15 −429.76 Non-EGU 1,352.79 1,458.52 105.73 Non-road 984.35 853.89 −130.46 Area 1,828.85 1,864.80 35.95 MAR 416.20 414.43 −1.77 On-road 2,810.30 2,679.85 −130.45 Total 9,455.40 8,904.64 −550.76

    Table 2 shows reductions in NOX emissions for the Cincinnati-Hamilton area by 19,096.79 tpy between 2005 (nonattainment year) and 2008 (attainment year). Table 3 shows that the Cincinnati-Hamilton area reduced SO2 emissions by 122,947.64 tpy between 2005 and 2008. Table 4 shows reductions in direct PM2.5 emissions for the Cincinnati-Hamilton area by 550.76 tpy between 2005 and 2008.

    4. Maintenance Plan Pursuant to Section 175A of the CAA (Section 107(d)(3)(E)(iv))

    EPA has fully approved an applicable maintenance plan that meets the requirements of section 175(a) on December 23, 2011. See 76 FR 80253. In conjunction with Ohio's request to redesignate the Cincinnati-Hamilton nonattainment area to attainment, Ohio has submitted an updated attainment inventory of the maintenance plan to reflect the provisions of subpart 4 (Title I, Part D) of the CAA, and EPA is updating the maintenance plan to 2027.

    a. What is required in a maintenance plan?

    Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after EPA approves a redesignation to attainment. Eight years after redesignation, the state must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for ten years following the initial ten year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future PM2.5 violations.

    The Calcagni memorandum provides additional guidance on the content of a maintenance plan. The memorandum states that a maintenance plan should address the following items: The attainment emissions inventory, a maintenance demonstration showing maintenance for the ten years of the maintenance period, a commitment to maintain the existing monitoring network, factors and procedures to be used for verification of continued attainment of the NAAQS, and a contingency plan to prevent or correct future violations of the NAAQS.

    Section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation.” Calcagni memorandum, p. 9. Where the emissions inventory method of showing maintenance is used, its purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory. Calcagni memorandum, pp. 9-10.

    As discussed in detail in the section below, the state's maintenance plan submission expressly documents that the area's emissions inventories will remain below the attainment year inventories through 2021. In addition, for the reasons set forth below, EPA believes that the state's submission, in conjunction with additional supporting information, further demonstrates that the area will continue to maintain the 1997 annual SO2 NAAQS at least through 2027. Thus, any EPA action to finalize its proposed approval of the redesignation request and maintenance plans in 2017, will be based on a showing, in accordance with section 175A, that the state's maintenance plan provides for maintenance for at least ten years after redesignation.

    b. Attainment Inventory

    Ohio developed an emissions inventory for NOX, direct PM2.5, and SO2 for 2008, one of the years in the period during which the Cincinnati-Hamilton area monitored attainment of the 1997 annual PM2.5 standard, as described previously. The attainment level of emissions is summarized in Tables 2, 3, and 4, above. Ohio also included emissions inventories for VOCs and ammonia from 2007, in accordance with the provisions of Subpart 4 (Title I, Part D) of the CAA. These emissions are summarized in Table 6, in discussion of the maintenance plan below.

    c. Demonstration of Maintenance

    Ohio has a fully approved maintenance plan that meets the requirements of Section 175(A). See 76 FR 80253. Along with the redesignation request, Ohio submitted an updated attainment inventory to reflect the provision of subpart 4. Ohio's plan demonstrates maintenance of the 1997 annual PM2.5 standard through 2021 by showing that current and future emissions of NOX, directly emitted PM2.5 and SO2 in the area remain at or below attainment year emission levels. Section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation.” Calcagni memorandum, p. 9. Where the emissions inventory method of showing maintenance is used, its purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory. Calcagni memorandum, pp. 9-10.

    As discussed in detail in the section below, Ohio's maintenance plan expressly documents that the area's emissions inventories will remain below the attainment year inventories through 2021. In addition, for the reasons set forth below, EPA believes that the state's submission, in conjunction with additional supporting information, further demonstrates that the area will continue to maintain the PM2.5 standard at least through 2027. Thus, if EPA finalizes its proposed approval of the redesignation request in 2017, it will be based on a showing, in accordance with section 175A, that the state's maintenance plan provides for maintenance for at least ten years after redesignation.

    Ohio's plan demonstrates maintenance of the 1997 annual PM2.5 NAAQS through 2021 by showing that current and future emissions of NOX, directly emitted PM2.5 and SO2 for the area remain at or below attainment year emission levels.

    The rate of decline in emissions of PM2.5, NOX, and SO2 from the attainment year 2008 through 2021 indicates that the emissions inventory levels not only significantly decline between 2008 and 2021, but also will continue to decline through 2027 and beyond. PM2.5 emissions in the nonattainment area are projected to decrease by 270.09 tpy in 2015 and 702.01 tpy in 2021. NOX emissions in the nonattainment area are projected to decrease by 42,994.13 tpy in 2015 and 69,887.02 tpy in 2021. SO2 emissions in the nonattainment area are projected to decline by 4,765.88 tpy in 2015 and 28,505.87 in 2021. These rates of decline are consistent with monitored and projected air quality trends; and emissions reductions achieved through emissions controls and regulations that will remain in place beyond 2027, and through fleet turnover that will continue beyond 2027, among other factors. EPA is proposing that the previously approved MVEBs are adequate for conformity purposes. See section 5 below for further details regarding MVEBs.

    A maintenance demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003). Ohio uses emissions inventory projections for the years 2018 and 2021 to demonstrate maintenance for the entire Cincinnati-Hamilton area. The projected emissions were estimated by Ohio, with assistance from LADCO and OKI, who used the MOVES2010 model for mobile source projections. Projection modeling of inventory emissions was done for the 2018 interim year emissions using estimates based on the 2009 and 2018 LADCO modeling inventory, using LADCO's growth factors, for all sectors. The 2021 maintenance year emission estimates were based on emissions estimates from the 2018 LADCO modeling. Table 5 shows the 2008 attainment base year emission estimates and the 2015 and 2021 emission projections for the Cincinnati-Hamilton area, taken from Ohio's July 22, 2016, submission.

    Table 5—Comparison of 2008, 2015 and 2021 NOX, Direct PM2.5, and SO2 Emission Totals (tpy) for the Cincinnati-Hamilton Area SO2 NOX PM2.5 2008 (baseline) 117,016.14 148,706.15 8,904.64. 2015 (interim) 112,250.26 105,712.02 8,634.55. 2021 (maintenance) 88,510.27 78,819.13 8,202.63. Projected Decrease (2021-2008) 28,505.87
  • 24% decrease
  • 69,887.02
  • 47% decrease
  • 702.01.
  • 8% decrease.
  • Table 5 shows that, for the period between 2008 and the maintenance projection for 2021, the Cincinnati-Hamilton area will reduce NOX emissions by 69,887.02 tpy; direct PM2.5 emissions by 702.01 tpy; and SO2 emissions by 28,505.87 tpy. The 2021 projected emissions levels are significantly below attainment year inventory levels, and, based on the rate of decline, it is highly improbable that any increases in these levels will occur in 2027 and beyond. Thus, the emissions inventories set forth in Table 5 show that the area will continue to maintain the 1997 annual PM2.5 standard during the maintenance period and at least through 2027.

    As Table 1 demonstrates, monitored PM2.5 design value concentrations in the Cincinnati-Hamilton area are well below the NAAQS in the years beyond 2008, the attainment year for the area. Further, those values are trending downward as time progresses. Based on the future projections of emissions in 2015 and 2021 showing significant emissions reductions in direct PM2.5, NOX, and SO2, it is very unlikely that monitored PM2.5 values in 2027 and beyond will show violations of the NAAQS. Additionally, the 2013-2015 design values, which range from 9.5 to 11.2 μg/m3, provide a sufficient margin in the unlikely event emissions rise slightly in the future.

    Maintenance Plan Evaluation of Ammonia and VOCs

    With regard to the redesignation of the Cincinnati-Hamilton area, in evaluating the effect of the Court's remand of EPA's implementation rule, which included presumptions against consideration of VOCs and ammonia as PM2.5 precursors, EPA in this proposal is also considering the impact of the decision on the maintenance plan required under sections 175A and 107(d)(3)(E)(iv). To begin with, EPA notes that the area has attained the 1997 annual PM2.5 standard and that the state has shown that attainment of the standard is due to permanent and enforceable emission reductions.

    EPA proposes to confirm that the state's maintenance plan shows continued maintenance of the standard by tracking the levels of the precursors whose control brought about attainment of the 1997 PM2.5 standard in the Cincinnati-Hamilton area. EPA therefore believes that the only additional consideration related to the maintenance plan requirements that results from the Court's January 4, 2013 decision is that of assessing the potential role of VOCs and ammonia in demonstrating continued maintenance in this area. As explained below, based upon documentation provided by the state and supporting information, EPA believes that the maintenance plan for the Cincinnati-Hamilton area need not include any additional emission reductions of VOCs or ammonia in order to provide for continued maintenance of the standard.

    First, as noted above in EPA's discussion of section 189(e), VOCs emission levels in this area have historically been well-controlled under SIP requirements related to ozone and other pollutants. Second, total ammonia emissions throughout the Cincinnati-Hamilton area are very low, estimated to be less than 3,200 tpy. See Table 6 below. This amount of ammonia emissions appears especially small in comparison to the total amounts of SO2, NOX, and even direct PM2.5 emissions from sources in the area. Third, as described below, available information shows that no precursor, including VOCs and ammonia, is expected to increase over the maintenance period so as to interfere with or undermine the state's maintenance demonstration.

    Ohio's maintenance plan shows that emissions of direct PM2.5, SO2, and NOX are projected to decrease by 702.01 tpy, 28,505.87 tpy, and 69,887.022 tpy, respectively, over the maintenance period. See Table 5 above. In addition, emissions inventories used in the regulatory impact analysis (RIA) for the 2012 PM2.5 NAAQS show that VOCs and ammonia emissions are projected to decrease by 16,716 tpy and 119 tpy, respectively between 2007 and 2020. See Table 6 below. While the RIA emissions inventories are only projected out to 2020, there is no reason to believe that this downward trend would not continue through 2027. Given that the Cincinnati-Hamilton area is already attaining the 1997 annual PM2.5 NAAQS even with the current level of emissions from sources in the area, the downward trend of emissions inventories would be consistent with continued attainment. Indeed, projected emissions reductions for the precursors that the state is addressing for purposes of the 1997 PM2.5 NAAQS indicate that the area should continue to attain the NAAQS following the precursor control strategy that the state has already elected to pursue. Even if VOCs and ammonia emissions were to increase unexpectedly between 2020 and 2027, the overall emissions reductions projected in direct PM2.5, SO2, and NOX would be sufficient to offset any increases. For these reasons, EPA believes that local emissions of all of the potential PM2.5 precursors will not increase to the extent that they will cause monitored PM2.5 levels to violate the 1997 PM2.5 standard during the maintenance period.

    Table 6—Comparison of 2007 and 2020 VOC and Ammonia Emission Totals by Source Sector (tpy) for the Cincinnati-Hamilton Area 9 Sector VOC 2007 2020 Net change 2020-2007 Ammonia 2007 2020 Net change 2020-2007 fires 224 224 0 16 16 0 nonpoint 24,149 24,080 −69 2,158 2,223 65 nonroad 9,294 5,228 −4,066 13 15 2 onroad 20,317 8,041 −12,275 890 481 −409 point 5,138 4,831 −306 109 332 222 Total 59,121 42,404 −16,716 3,186 3,067 −119

    In addition, available air quality modeling analyses show continued maintenance of the standard during the maintenance period. The current annual design values for the area range from 9.5 to 11.2 μg/m3 (based on 2013-2015 air quality data), which are well below the 1997 annual PM2.5 NAAQS of 15 μg/m3. Moreover, the modeling analysis conducted for the RIA for the 2012 PM2.5 NAAQS indicates that the design values for this area are expected to continue to decline through 2020. In the RIA analysis, the highest 2020 modeled design value for the Cincinnati-Hamilton area is 10.5 μg/m3. Given that precursor emissions are projected to decrease through 2027, it is reasonable to conclude that monitored PM2.5 levels in this area will also continue to decrease through 2027.

    9 These emissions estimates were taken from the emissions inventories developed for the RIA for the 2012 PM2.5 NAAQS which can be found in the docket.

    Thus, EPA believes that there is ample justification to conclude that the Cincinnati-Hamilton area should be redesignated, even taking into consideration the emissions of other precursors potentially relevant to PM2.5. After consideration of the D.C. Circuit's January 4, 2013 decision, and for the reasons set forth in this notice, EPA proposes to approve the state's revised attainment inventory into the previously approved maintenance plan.

    Based on the information summarized above, Ohio has adequately demonstrated maintenance of the 1997 PM2.5 standard in this area for a period extending in excess of ten years from expected final action on Ohio's redesignation request. EPA finds that currently approved plan will provide for maintenance.

    d. Monitoring Network

    Ohio's approved maintenance plan includes additional elements. Ohio's plan includes a commitment to continue to operate its EPA-approved monitoring network, as necessary to demonstrate ongoing compliance with the NAAQS. As detailed above, there are nine monitors measuring PM2.5 concentrations in the Cincinnati-Hamilton area, and eight of the nine are operated by Ohio. The one other monitor is located in Kentucky.

    e. Verification of Continued Attainment

    Ohio remains obligated to continue to quality-assure monitoring data and enter all data into the AQS in accordance with Federal guidelines. Ohio will use these data, supplemented with additional information as necessary, to assure that the area continues to attain the standard. Ohio will also continue to develop and submit periodic emission inventories as required by the Federal Consolidated Emissions Reporting Rule (67 FR 39602, June 10, 2002) to track future levels of emissions. Both of these actions will help to verify continued attainment in accordance with 40 CFR part 58.

    f. Contingency Plan

    The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all pollution control measures that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA. As described above in section III.4, Ohio's previously approved maintenance plan includes all necessary contingency measures required under section 175A(d). See 76 FR 80253.

    Ohio further commits to conduct ongoing review of its data, and if monitored concentrations or emissions are trending upward, Ohio commits to take appropriate steps to avoid a violation if possible. Ohio commits to continue implementing SIP requirements upon and after redesignation.

    EPA believes that Ohio's approved contingency measures, as well as the commitment to continue implementing any SIP requirements, satisfy the pertinent requirements of section 175A(d).

    As required by section 175A(b) of the CAA, Ohio commits to submit to EPA an updated PM2.5 maintenance plan eight years after redesignation of the Cincinnati-Hamilton area to cover an additional ten year period beyond the initial ten year maintenance period. As required by section 175A of the CAA, Ohio has also committed to retain the PM2.5 control measures contained in the SIP prior to redesignation.

    For all of the reasons set forth above, EPA determines that the approved maintenance plan is still applicable and meets all the contingency plan requirements of CAA section 175A.

    5. Motor Vehicle Emissions Budget (MVEBs) for the Mobile Source Contribution to PM2.5 and NOX a. How are MVEBs developed and what are the MVEBs for the Cincinnati-Hamilton area?

    Under the CAA, states are required to submit, at various times, control strategy SIP revisions and maintenance plans for PM2.5 nonattainment areas and for areas seeking redesignation to attainment of the PM2.5 standard. These emission control strategy SIP revisions (e.g., RFP and attainment demonstration SIP revisions) and maintenance plans create MVEBs based on on-road mobile source emissions for criteria pollutants and/or their precursors to address pollution from on-road transportation sources. The MVEBs are the portions of the total allowable emissions that are allocated to highway and transit vehicle use that, together with emissions from other sources in the area, will provide for attainment, RFP, or maintenance, as applicable.

    Under 40 CFR part 93, a MVEB for an area seeking a redesignation to attainment is established for the last year of the maintenance plan and could also be established for an interim year or years. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993 transportation conformity rule (58 FR 62188).

    Under section 176(c) of the CAA, new transportation plans and transportation improvement programs (TIPs) must be evaluated to determine if they conform to the purpose of the area's SIP. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing air quality violations, or delay timely attainment of the NAAQS or any required interim milestone. If a transportation plan or TIP does not conform, most new transportation projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP.

    When reviewing SIP revisions containing MVEBs, including attainment strategies, rate-of-progress plans, and maintenance plans, EPA must affirmatively find adequate and/or approve the MVEBs for use in determining transportation conformity before the MVEBs can be used. Once EPA affirmatively approves and/or finds the submitted MVEBs to be adequate for transportation conformity purposes, the MVEBs must be used by state and Federal agencies in determining whether proposed transportation plans and TIPs conform to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4). Additionally, to approve a MVEB, EPA must complete a thorough review of the SIP and conclude that the SIP will achieve its overall purpose. In this case, EPA must review Ohio's PM2.5 maintenance plan and conclude that it will provide for maintenance of the 1997 annual PM2.5 standard in the Cincinnati-Hamilton area.

    The maintenance plans previously submitted by Ohio for the area contained PM2.5 and NOX MVEBs for the area for the year 2021. Ohio calculated the MVEBs using MOVES2010. These approved budgets are used in future conformity determinations and regional emissions analyses prepared by the OKI, and will have to be based on the use of MOVES2010 or the most recent version of MOVES required to be used in transportation conformity determinations.10 The state has determined the 2021 MVEBs for the combined Ohio and Indiana portions of the Cincinnati-Hamilton area to be 1,241.19 tpy for primary PM2.5 and 21,747.71 tpy for NOX. The Ohio and Indiana portion of the area included “safety margins” as provided for in 40 CFR 93.124(a) (described below) of 112.84 tpy for primary PM2.5 and 2,836.65 tpy for NOX in the 2021 MVEBs, respectively, to provide for on-road mobile source growth. Ohio did not provide emission budgets for SO2, VOCs, and ammonia because it concluded, consistent with EPA's presumptions regarding these precursors, that emissions of these precursors from on-road motor vehicles are not significant contributors to the area's PM2.5 air quality problem.

    10 EPA described the circumstances under which an area would be required to use MOVES in transportation conformity determinations in its March 2, 2010, Federal Register notice officially releasing MOVES2010 for use in SIPs and transportation conformity determinations. (75 FR 9413)

    In the Cincinnati-Hamilton area, the motor vehicle budgets including the safety margins and motor vehicle emission projections for both NOX and PM2.5 are equal to the levels in the attainment year.

    EPA has reviewed the previously approved budgets for 2021 including the added safety margins using the conformity rule's adequacy criteria found at 40 CFR 93.118(e)(4) and the conformity rule's requirements for safety margins found at 40 CFR 93.124(a). EPA has reviewed the approved budgets and the maintenance plan, and EPA is determining that the 2021 direct PM2.5 and NOX budgets, including the requested safety margins for the Cincinnati-Hamilton area, are adequate for use in conformity.

    b. What action is EPA taking on the submitted motor vehicle emissions budgets?

    EPA previously approved Ohio's MVEBs for use to determine transportation conformity in the Cincinnati-Hamilton area and these budgets remain applicable. EPA has determined that the area can maintain attainment of the 1997 annual PM2.5 NAAQS for the relevant maintenance period and no changes to the plan have been made. See 76 FR 80253.

    6. Comprehensive Emissions Inventory

    As discussed above, section 172(c)(3) of the CAA requires areas to submit a comprehensive emissions inventory including direct PM and all four precursors (SO2, NOX, VOCs, and ammonia). EPA approved the Ohio 2005 base year emissions inventory on December 23, 2011 (76 FR 80253). This previously approved base year emissions inventory detailed emissions of PM2.5, SO2, and NOX for 2005. Emissions inventories for VOCs and ammonia from 2007, taken from the RIA for the 2012 PM2.5 NAAQS, have been added as part of this submittal in accordance with the provisions of subpart 4 (Title I, Part D) of the CAA. Emissions contained in the submittal cover the general source categories of point sources, area sources, on-road mobile sources, and nonroad mobile sources.

    Based upon EPA's previous action and 2007 emissions inventory for VOCs and ammonia, the emissions inventory was complete and accurate, and met the requirement of CAA section 172(c)(3).

    IV. EPA's Proposed Actions

    EPA is proposing to take several actions related to redesignation of the Cincinnati-Hamilton area to attainment for the 1997 annual PM2.5 NAAQS.

    EPA has previously approved Ohio's PM2.5 maintenance plan and MVEBs for the Cincinnati-Hamilton area. EPA is proposing to determine that this plan and budgets are still applicable.

    EPA has previously approved the 2005 primary PM2.5, NOX, and SO2 base year emissions inventory. EPA is proposing to approve Ohio's updated emissions inventory which includes emissions inventories for VOCs and ammonia from 2007. EPA is proposing that Ohio meets the emissions inventory requirement under section 107(d)(3)(E)(iii).

    EPA is proposing to approve the RACM/RACT portion of Ohio's prior Cincinnati-Hamilton area attainment plan SIP revision as providing adequate RACM/RACT consistent with the provisions of 40 CFR 51.1010(b), because Ohio has demonstrated with a RACM/RACT analysis that no further control measures would advance the attainment date in the area.

    EPA is proposing that Ohio meets the requirements for redesignation of the Cincinnati-Hamilton area to attainment of the 1997 annual PM2.5 NAAQS under section 107(d)(3)(E) of the CAA. EPA is thus proposing to grant Ohio's request to change the designation of its portion of the Cincinnati-Hamilton area from nonattainment to attainment for the 1997 annual PM2.5 NAAQS.

    If finalized, approval of the redesignation request would change the official designation of the Ohio portion of the Cincinnati-Hamilton area for the 1997 annual PM2.5 NAAQS, found at 40 CFR part 81, from nonattainment to attainment. If finalized, EPA would determine that the previously approved maintenance plan is still applicable to the Cincinnati-Hamilton area for the 1997 annual PM2.5 NAAQS.

    V. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and, if finalized, will not impose additional requirements beyond those imposed by state law. For that reason, this actions:

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter.

    40 CFR Part 81

    Environmental protection, Air pollution control, National parks, Wilderness areas.

    Dated: December 13, 2016. Robert Kaplan, Acting Regional Administrator, Region 5.
    [FR Doc. 2016-31635 Filed 1-3-17; 8:45 am] BILLING CODE 6560-50-P
    SURFACE TRANSPORTATION BOARD 49 CFR Part 1300 [Docket No. EP 528 (Sub-No. 1); Docket No. EP 665 (Sub-No. 1)] Publication Requirements for Agricultural Products; Rail Transportation of Grain, Rate Regulation Review AGENCY:

    Surface Transportation Board.

    ACTION:

    Notice of proposed rulemaking; policy statement.

    SUMMARY:

    Through this Notice of Proposed Rulemaking, the Surface Transportation Board (Board or STB) proposes amendments to its regulations governing the publication, availability, and retention for public inspection of rail carrier rate and service terms for agricultural products and fertilizer. The Board also clarifies its policies on standing and aggregation of claims as they relate to rate complaint procedures.

    DATES:

    Comments are due February 21, 2017; replies are due by March 20, 2017.

    ADDRESSES:

    Comments may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at http://www.stb.gov. Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: Docket No. EP 528 (Sub-No. 1), 395 E Street SW., Washington, DC 20423-0001. Copies of written comments will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Fancher at (202) 245-0355. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    In November 2006, the Board held a hearing in Rail Transportation of Grain, Docket No. EP 665, as a forum for interested persons to provide views and information about grain transportation markets. The hearing was prompted by concerns regarding rates and service issues related to the movement of grain raised by Members of Congress, grain producers, and other stakeholders. In January 2008, the Board closed that proceeding, reasoning that guidelines for simplified rate procedures had recently been adopted 1 and that those procedures would provide grain shippers with a new avenue for rate relief. Rail Transp. of Grain, EP 665, slip op. at 5 (STB served Jan. 14, 2008). The Board noted, however, that it would continue to monitor the relationship between carriers and grain interests, and that, if future regulatory action were warranted, it would open a new proceeding. Id. at 5.

    1Simplified Standards for Rail Rate Cases, EP 646 (Sub-No. 1) (STB served Sept. 5, 2007), aff'd sub nom. CSX Transp., Inc. v. STB, 568 F.3d 236 (D.C. Cir.), vacated in part on reh'g, 584 F.3d 1076 (D.C. Cir. 2009).

    In Rate Regulation Reforms, EP 715 (STB served July 25, 2012), the Board proposed several changes to its rate reasonableness rules. However, based on the comments received in that docket from grain shipper interests, which in part stated that the proposed changes did not provide meaningful relief to grain shippers, the Board commenced a separate proceeding in Rail Transportation of Grain, Rate Regulation Review, Docket No. EP 665 (Sub-No. 1) in December 2013 to deal specifically with the concerns of grain shippers. The Board invited public comment on how to ensure that the Board's existing rate complaint procedures are accessible to grain shippers and provide effective protection against unreasonable freight rail transportation rates. The Board also sought input from interested parties on grain shippers' ability to effectively seek relief for unreasonable rates, including proposals for modifying existing procedures, or new alternative rate relief methodologies, should they be necessary. The Board received comments and replies from numerous parties.

    On May 8, 2015, the Board announced that it would hold a public hearing, and invited parties to discuss rate reasonableness accessibility for grain shippers, as well as other issues, including: Whether the Board should allow multiple agricultural farmers and other agricultural shippers to aggregate their distinct rate claims against the same carrier into a single proceeding, and whether the disclosure requirement for agricultural tariff rates should be modified to allow for increased transparency. The public hearing was held on June 10, 2015, and the Board received post-hearing supplemental comments from interested parties through June 24, 2015.

    Although much of the commentary and testimony received pertained to existing or proposed rate relief methodologies for agricultural commodity shippers, the comments and testimony also touched on various other issues related to the rail transportation of grain. In order to address the comments pertaining to rate relief methodologies, the Board issued an Advance Notice of Proposed Rulemaking, which proposed to develop a new rate reasonableness methodology for use in very small disputes, in a decision served on August 31, 2016, in Docket Nos. EP 665 (Sub-No. 1) and EP 665 (Sub-No. 2). Additionally, based on the comments and testimony received regarding other issues related to the rail transportation of grain,2 the Board today proposes amendments to its regulations on publication of rates for agricultural products and fertilizer in a new proceeding, Docket No. EP 528 (Sub-No. 1), and sets forth policy statements regarding aggregation of claims and standing. The Board's proposals and clarifications with respect to these issues are discussed below. Finally, the Board is terminating the proceeding in Docket No. EP 665 (Sub-No. 1).

    2 For a list of the numerous parties that have participated in the Docket No. EP 665 (Sub-No. 1) proceeding at various stages, as set forth below. To the extent this decision refers to parties by abbreviations, those abbreviations are listed below.

    Notice of Proposed Rules Regarding Agricultural Rate Publication

    In the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803, Congress eliminated the tariff requirements that were formerly applicable to rail carriers and imposed instead certain obligations to disclose common carriage rates and service terms. One of these requirements, applicable only to the transportation of agricultural products, is that rail carriers must publish, make available, and retain for public inspection, their common carrier rates, schedules of rates, and other service terms, and any proposed and actual changes to such rates and service terms. 49 U.S.C. 11101(d). The statute states that the term “agricultural products” includes grain, as defined in 7 U.S.C. 75 and all products thereof, and fertilizer. Id.

    The Board adopted regulations to implement the requirements of § 11101(d), in Disclosure, Publication, & Notice of Change of Rates & Other Service Terms for Rail Common Carriage, 1 S.T.B. 153 (1996). Those regulations are codified at 49 CFR 1300.5. Under those regulations, the information required to be published “must include an accurate description of the services offered to the public; must provide the specific applicable rates (or the basis for calculating the specific applicable rates), charges, and service terms; and must be arranged in a way that allows for the determination of the exact rate, charges, and service terms applicable to any given shipment (or to any given group of shipments).” 49 CFR 1300.5(b). Rail carriers also must make the information available, without charge during normal business hours, at offices where they normally keep rate information, 49 CFR 1300.5(c), and to all persons who have subscribed to a publication service operated either by the rail carrier itself or by an agent acting at the rail carrier's direction, 49 CFR 1300.5(d).3

    3 The Board noted when adopting these regulations that the publication requirements were applicable only to non-exempted agricultural products and fertilizer. Disclosure, 1 S.T.B. at 160. Many agricultural commodities and products have been exempted as a class from the Board's regulation. See 49 CFR 1039.10.

    In announcing the June 2015 hearing in Docket No. EP 665 (Sub-No. 1), the Board invited parties to discuss whether there are any ways in which the Board could create greater transparency for grain shippers regarding how railroads set rates. Specifically, the Board invited parties to address the disclosure requirements for agricultural rates under 49 CFR 1300.5 and whether this requirement should be modified to allow for increased transparency.

    Shippers generally had differing opinions as to the availability of agricultural tariff rates and their transparency. On the one hand, ARC asserts that there is a “[n]eed for increased access to railroad public documents such as tariffs which serve to provide education (to agricultural producers, small and large elevators, and merchandisers)” and for “access to more complete summaries of transportation contracts, and operational data.” (ARC Opening, V.S. Whiteside 8.) In its testimony, ARC raised concerns that certain public rates were no longer available for review online and stated that, although it was recently able to view a Class I railroad's rates online, it no longer is able to do so, even after registering through the railroad's Web site. (Hr'g Tr. 353:1-17, June 10, 2015.) NGFA, on the other hand, testified that Class I railroads make their tariffs available online and searchable and, although some Class I railroad tariffs may be more “user-friendly” than others, the Class I's tariffs are publicly available. (Hr'g Tr. 181:2-9, June 10, 2015.)

    The Class I railroads that addressed this issue generally state that their common carrier agricultural rates are available online to varying degrees. At the June 2015 hearing, CSXT testified that its “tariff [rates] are readily available on the internet” and that, in the company's experience, the tariff [rates] are used by companies of varying sizes for many different reasons. (Hr'g Tr. 280:7-19, June 10, 2015.) BNSF stated that its “tariff rates are available to all of our shippers that ship on us.” (Hr'g Tr. 251:3-12, June 10, 2015.)

    Based on the comments and testimony received, the Board proposes amendments to 49 CFR 1300.5 to update the publication requirements for the transportation of agricultural products and fertilizer in a new proceeding, Docket No. EP 528 (Sub-No. 1). These publication requirements, adopted in 1996, should be revised to reflect the fact that Class I railroads often use company Web sites and/or applications to disseminate information to customers and the general public. The 1996 decision adopting the current rules discussed publication methods that likely were more prevalent at the time (i.e., subscription services and maintenance of paper documents at physical railroad offices). Given the changes in the commonly used methods to disseminate information and the fact that some railroads already have agricultural rate and service information on their Web sites, the Board believes it is appropriate to update our regulations to reflect these modern practices. All rail carriers would continue to be required to make the required information available to the public at their offices as well.

    The Board's proposed amendments to 49 CFR 1300.5 are set forth below. Under our proposed change to § 1300.5(c), Class I rail carriers would be required to make publicly available online the information that is currently required under § 1300.5(a), which includes currently effective rates, schedules of rates, charges, and other service terms, and any scheduled changes to such rates, charges, and service terms for agricultural products and fertilizer.4

    4 We do not propose to require Class II and III carriers to comply with the online publication requirement, as this may be a significant burden to Class II and III carriers that do not have Web sites.

    The proposal would also continue to require that this information be made available to “any person” that seeks such information, as currently required by § 1300.5(c), so that the rate information published online would be readily available to anyone, regardless of whether a person is a current or potential customer or receiver of a railroad.5 In addition, the Board proposes amendments to 49 CFR 1300.5 that would direct parties that are having difficulty accessing the tariff rates for agricultural commodities and fertilizer to contact the Board's Office of Public Assistance, Government Affairs, and Compliance.

    5 The Board does not propose restricting railroads from using a registration feature to view tariff information online. However, under the proposed rules, the Board would expect that such registration be structured in a manner that allows any person to view the tariffs for agricultural commodities and fertilizer.

    The Board invites public comment on these proposed changes and whether additional changes are needed to promote greater rate transparency consistent with § 11101(d).

    Clarification of Aggregation of Claims and Standing Issues

    In response to its December 2013 request for comments in Docket No. EP 665 (Sub-No. 1), the Board received comments related to whether grain producers as indirect purchasers of rail transportation have the legal right to file rate complaints under 49 U.S.C. 11701(b). The Board also received comments on the ability of groups of producers or elevators to bring claims, or the ability of State Attorneys General to act on behalf of agricultural producers in a state. In its May 8, 2015 hearing notice, the Board invited parties to discuss whether the Board should allow multiple agricultural producers and other agricultural shippers to aggregate their distinct rate claims against the same carrier into a single proceeding.

    Shippers and government entities agree that Board clarification on the legal standing of grain producers (or other indirect purchasers of rail transportation) to file rate complaints and aggregate their claims would be beneficial. ARC requested that the Board confirm that grain producers have the legal right to file rate complaints, and that such complaints are not subject to dismissal due to the absence of direct damage to the complainant. (ARC Opening, V.S. Whiteside 28.) According to ARC, such confirmation would reassure many grain producers who may be unsure of whether they would have standing to file a rate case. (Id.) Similarly, NGFA argued that aggregation of claims would allow parties that do not “directly pay the rate but feel the brunt of the rate to bring claims.” (Hr'g Tr. 171:6-14, June 10, 2015.) NGFA stated that without further clarification from the Board, standing would be a deterrent to agricultural producers filing a rate case.6 (Hr'g Tr. 171-72, June 10, 2015.)

    6 NGFA and other parties also raise issues related to “whether parties who indirectly suffer from rate increases can receive reparations.” (Hr'g Tr. 172:8-21, June 10, 2015.) UP, for its part, requested that, if the Board clarifies that indirect purchasers of rail transportation can file rate complaints, the Board also clarify that parties that did not pay the rate may not recover reparations. (UP Reply 38.) The Board is not addressing the issue of reparations in this decision.

    Additionally, USDA suggests that the Board amend its rate challenge procedures to allow “groups of agricultural producers, groups of elevators, or State Attorneys General to act on behalf of agricultural producers in that State.” (USDA Opening 10.) To the same end, the Montana Department of Agriculture testified that parties must be allowed to aggregate their claims in order to capitalize on economies of scale. (Hr'g Tr. 71:7-9, June 10, 2015.) The Montana Department of Agriculture testified that allowing real parties of interest that are similarly situated to bring an aggregated claim would not only increase efficiency for the Board and protect rail carriers from piecemeal litigation, but also allow State Attorneys General to bring claims on behalf of shippers and producers without “fear [of] retaliation” or “regard to shareholder profits” and with the resources and the transportation expertise needed to effectively pursue a just remedy.7 (Hr'g Tr. 71:11-22, June 10, 2015.)

    7 The Montana Department of Agriculture also testified that a rule mandating arbitration for certain cases could require aggregated claims with a value of less than $500,000 brought by fewer than 15 farmers to be subject to mandatory arbitration, though we do not address arbitration in this decision. (Hr'g Tr. 73:15-19, June 10, 2015.)

    Rail carriers generally do not oppose shippers' request for clarification on aggregation of claims and standing, although some railroads state that Board precedent is clear on these issues and does not require further explanation. For instance, NSR comments that 49 U.S.C. 11701(b) is clear that third parties may bring rate cases even if they did not pay directly for the transportation in question, but states that it nonetheless does not oppose the Board “reaffirming the principle that on a case-by-case basis a party can bring a rate challenge . . . [if] it can demonstrate a sufficient nexus to the rate at issue . . . .” 8 (NSR Reply 7.) Similarly, UP states that the Board “could clarify that a party need not sustain damages to file a rate complaint, so long as the party would otherwise have standing.” (UP Reply 38; see also AAR Reply 24-25.)

    8 NSR also asserted that the Board should not extend standing to “parties with insignificant connections to the transportation” or “permit other attempts to combine unrelated transportation into a single rate challenge.” (NSR Reply 7, Aug. 25, 2014.)

    BNSF, however, opposes shippers' requests for clarification on standing. BNSF argues that only parties directly responsible for freight charges may seek damages in rate cases and that, for parties seeking non-damage forms of relief, whether they have standing is a “highly fact-specific” determination for which there is no basis in the record. (BNSF Reply 2-3.)

    The Board will address standing and aggregation of claims, as the questions raised by some of the comments suggest that clarification would be beneficial. Under 49 U.S.C. 11701(b), a person, including a governmental authority, may file a complaint with the Board about a violation of part A, subtitle IV of title 49 by a rail carrier providing transportation or service subject to the Board's jurisdiction. Under § 11701(b), the Board may not dismiss such a complaint because of the “absence of direct damage to the complainant.” Thus, the statute permits parties to bring a rate complaint, even if they have not been directly harmed or did not directly pay for the transportation for which relief is sought. Accordingly, grain producers (and other indirectly harmed complainants) that file rate complaints cannot be disqualified due to the absence of direct damage.

    At the same time, complainants that allege indirect harm in rate complaints must still have standing in order to proceed with a complaint, which is determined by the Board on a case-by-case basis. In making such determinations, the Board is “not bound by the strict requirements of standing that otherwise govern judicial proceedings,” but it may still look to the courts' test to determine whether a party has standing to bring an action. See Riffin—Acquis. & Operation Exemption—in York Cty., Pa., FD 34501, et al., slip op. at 5 (STB served Feb. 23, 2005) (citing N.C. R.R.—Pet. to Set Trackage Comp. & Other Terms & Conditions—Norfolk S. Ry., FD 33134, slip op. at 2 n.9 (STB served May 29, 1997); Mo. Pac. R.R.—Aban.—in Douglas Champaign & Vermillion Ctys., Ill., AB 3 (Sub-No. 103), slip op. at 3 n.4 (ICC served Nov. 3, 1994)). When a complainant files a rate complaint, the Board may consider, for instance, whether the complainant has suffered an injury in fact, whether the injury is fairly traceable to the defendant's challenged conduct, and whether the injury is one likely to be redressed through a favorable decision. See Riffin, FD 34501, et al., slip op. at 5 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1991)). Indirect damage, therefore, is not a bar to grain producers or other indirect purchasers of rail transportation bringing a complaint, but such complainants must still establish that they have standing to proceed with a complaint.

    Given that agricultural producers have previously been found to have standing to challenge the rail transportation rate for their grain, the Board expects that other producers would be able to establish standing as well. See McCarty Farms, Inc. v. Burlington N., Inc., 91 F.R.D. 486 (D. Mont. 1981). Grain producers should be able to establish standing because, as various commenters acknowledge, the price the producers are paid by elevators for their grain is generally affected at least to some extent by the transportation rate the railroad charged to the grain elevators.9

    9See NGFA Opening 7-8 (“[T]he rail transportation rates and terms are established between the elevator/aggregator and the railroad, with the cost of rail transportation typically being borne ultimately by the producer/farmer in the price paid by the elevator for the crop. . . . As rail rates are increased, the price that a captive elevator will pay for the farmer's crop usually decreases by a commensurate amount.”); ARC Opening 9 (“[I]f rail rates on merchandise shipments rise, the cost may be borne by millions of customers paying a few cents more at Walmart and similar stores. For grain, the rail rate buck tends to stop with farmers.”); NSR Reply 6-7 (“NS understands that for some agricultural commodities, grain elevators or other parties actually contract for the transportation, even though farmers may be price takers and thus receive higher or lower prices for their crop based on the cost of transportation.”); USDA Opening 4 (“It is well established that transportation costs can have a direct impact on agricultural producers' profits . . . . Agricultural producers in remote areas have few transportation alternatives, and the price they receive for their products is net of transportation . . . .”); BNSF Reply, V.S. Wilson 8 (acknowledging that rail rates are one factor influencing prices that grain producers receive for their grain).

    For parties who have standing, the Board sees no reason not to permit the aggregation of claims where appropriate. Indeed, the Board has previously conducted proceedings involving class action claims, see McCarty Farms, and acknowledged its ability to do so, see NSL, Inc. v. Whitlock, NOM 41997 et al., slip op. at 5 (STB served Apr. 5, 2000). Therefore, in response to comments received in this proceeding, the Board confirms that parties may seek to aggregate their rate claims. In determining whether to permit the aggregation of claims, the Board will consider, on a case-by-case basis, factors such as, whether the claims or defenses involve common questions of law or fact, whether administrative efficiencies could be achieved through aggregation, and the number of claims being aggregated.

    Terminating Docket No. EP 665 (Sub-No. 1)

    As explained earlier, the Board sought input from interested parties regarding effective rate relief ideas for grain shippers in Docket No. EP 665 (Sub-No. 1). With respect to comments that addressed the Board's existing or proposed rate methodologies, the Board recently issued an Advance Notice of Proposed Rulemaking to explore a new rate reasonableness methodology. Expanding Access to Rate Relief, EP 665 (Sub-No. 2) (STB served Aug. 31, 2016). In addition, the present decision addresses agricultural rate publication, standing, and aggregation of claims, which were also raised in Docket No. EP 665 (Sub-No. 1). While these two decisions do not purport to address every suggestion offered in Docket No. EP 665 (Sub-No. 1), the Board considered all of the comments that were received in determining how to proceed at this time. Therefore, the Board will terminate Docket No. EP 665 (Sub-No. 1) in the interest of administrative finality.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. §§ 601-604. In its Notice of Proposed Rulemaking, the agency must either include an initial regulatory flexibility analysis, § 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities.” § 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

    The Board's proposed regulations in Docket No. EP 528 (Sub-No. 1) would clarify and update existing procedures related to the publication of rates for agricultural products and fertilizers and, therefore, do not mandate or circumscribe additional conduct for small entities. To the extent that the Board's proposal imposes a new requirement in the form of requiring rate information to be published online, that requirement is limited to Class I rail carriers.10 Therefore, the Board certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities as defined by the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

    10 Effective June 30, 2016, for the purpose of RFA analysis, the Board defines a “small business” as a rail carrier classified as a Class III rail carrier under 49 CFR 1201.1-1. See Small Entity Size Standards Under the Regulatory Flexibility Act, EP 719 (STB served June 30, 2016) (with Board Member Begeman dissenting). Class III carriers have annual operating revenues of $20 million or less in 1991 dollars, or $36,633,120 or less when adjusted for inflation using 2015 data. Class II rail carriers have annual operating revenues of less than $250 million but in excess of $20 million in 1991 dollars, or $457,913,998 and $36,633,120 respectively, when adjusted for inflation using 2015 data. The Board calculates the revenue deflator factor annually and publishes the railroad revenue thresholds on its Web site. 49 CFR 1201.1-1.

    List of Subjects in 49 CFR Part 1300

    Administrative practice and procedure, Agricultural commodities, Railroads, Reporting and recordkeeping requirements.

    It is ordered:

    1. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the Federal Register.

    2. Comments regarding the proposed rules are due by February 21, 2017. Replies are due by March 20, 2017.

    3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

    4. The Board issues the policy statement set forth above.

    5. The proceeding in Docket No. EP 665 (Sub-No. 1) is terminated.

    6. This decision is effective on the day of service.

    By the Board, Chairman Elliott, Vice Chairman Miller and Commissioner Begeman. Vice Chairman Miller commented with a separate expression.

    Raina S. Contee, Clearance Clerk.
    Vice Chairman Miller, Commenting

    In Petition of Norfolk Southern Railway and CSX Transportation, Inc. to Institute a Rulemaking Proceeding to Exempt Railroads from Filing Agricultural Transportation Contract Summaries, EP 725 (STB served Aug. 11, 2014), I committed to work with agency staff to explore whether the format of the summaries could be made more useful and ensure whether the carriers were properly complying with the filing requirements. I have since discussed with staff the idea of compiling the summary requirements into one source that would allow stakeholders to view the contract summary information collectively. However, because the carriers each report information differently, and because some of the individual fields in one summary can contain pages of information, creating a single source has proven difficult. As for compliance, the staff of the Board's Office of Governmental Affairs, Public Assistance, and Compliance (OPAGAC) has been monitoring the summaries to ensure that they are being properly filed. I will continue to hold briefings with the OPAGAC staff to be made aware of any issues with the summaries that arise.

    Additionally, in the course of developing this NPRM, I considered a number of ideas on how to modify the contract summary requirements so that they would provide more value, as well as address issues that are not currently covered by the existing regulations. However, the record here does not contain sufficient information that would help us to even begin making changes. Without such information, I am hesitant to tinker with the existing regulations. Accordingly, I ultimately decided that it would not be advisable to urge the Board to propose changes to the current requirements at this time.

    Participants in Docket No. EP 665 (Sub-No. 1)

    The Board received comments and testimony from the following parties in Docket No. EP 665 (Sub-No. 1).

    Opening comments were received from:

    • Alliance for Rail Competition (ARC) (joined by Montana Wheat and Barley Committee, National Farmers Union, Colorado Wheat Administrative Committee, Idaho Barley Commission, Idaho Grain Producers Association, Idaho Wheat Commission, Montana Farmers Union, North Dakota Corn Growers Association, North Dakota Farmers Union, South Dakota Corn Growers Association, South Dakota Farmers Union, Minnesota Corn Growers Association, Minnesota Farmers Union, Wisconsin Farmers Union, Nebraska Wheat Board, Oklahoma Wheat Commission, Oregon Wheat Commission, South Dakota Wheat Commission, Texas Wheat Producers Board, Washington Grain Commission, Wyoming Wheat Marketing Commission, USA Dry Pea and Lentil Council, and National Corn Growers Association) • Association of American Railroads (AAR) • BNSF Railway Company (BNSF) • CSX Transportation, Inc. (CSXT) • National Grain and Feed Association (NGFA) • Norfolk Southern Railway Company (NSR) • Union Pacific Railroad Company (UP) • U.S. Department of Agriculture (USDA)

    Reply comments were received from:

    • AAR • Agribusiness Association of Iowa, Agribusiness Council of Indiana, Agricultural Retailers Association, American Bakers Association, American Farm Bureau Federation, American Feed Industry Association, American Soybean Association, California Grain and Feed Association, Corn Refiners Association, Institute of Shortening and Edible Oils, Kansas Cooperative Council, Kansas Grain and Feed Association, Grain and Feed Association of Illinois, Michigan Agribusiness Association, Michigan Bean Shippers Association, Minnesota Grain And Feed Association, Missouri Agribusiness Association, Montana Grain Elevators Association, National Council of Farmer Cooperatives, National Farmers Union, National Oilseed Processors Association, Nebraska Grain and Feed Association, North American Millers' Association, North Dakota Grain Dealers Association, Northeast Agribusiness and Feed Alliance, Ohio Agribusiness Association, Oklahoma Grain and Feed Association, Pacific Northwest Grain and Feed Association, Pet Food Institute, South Dakota Grain and Feed Association, Texas Grain and Feed Association, USA Rice Federation, and Wisconsin Agribusiness Association (collectively, AAI) • ARC (joined by the same parties that joined its opening comment as well as the Nebraska Corn Growers Association) • BNSF • CSXT • Kansas City Southern Railway Company • NGFA • NSR • Jay L. Schollmeyer for and on behalf of SMART-TD General Committee of Adjustment (SMART-TD) • Texas Trading and Transportation Services, LLC, dba TTMS Group, together with Montana Grain Growers Association (TTMS Group) • UP • USDA

    Testimony at the June 10, 2015 hearing was received from:

    • AAR • ARC • BNSF • Canadian National Railway Company • Canadian Pacific Railway Company • CSXT • Michigan Agri-Business Association 11

    11 Written testimony only.

    • Montana Department of Agriculture • NGFA • NSR • SMART-TD • Transportation Research Board of the National Academy of Sciences • TTMS Group • UP • USDA

    Supplemental comments were received from:

    • AAR • ARC (joined by the same parties that joined its opening comment) • NSR List of Subjects in 49 CFR Part 1300

    Administrative practice and procedure, Agricultural commodities, Railroads, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend title 49, chapter X, of the Code of Federal Regulations by revising part 1300 to read as follows:

    PART 1300—DISCLOSURE, PUBLICATION, AND NOTICE OF CHANGE OF RATES AND OTHER SERVICE TERMS FOR RAIL COMMON CARRIAGE 1. Revise the authority citation for part 1300 to read as follows: Authority:

    49 U.S.C. 1321 and 11101(f).

    § 1300.5 [Amended]
    2. Amend § 1300.5 by adding two sentences at the end of paragraph (c) to read as follows:
    § 1300.5 Additional publication requirement for agricultural products and fertilizer.

    (c) * * * If a rail carrier is a Class I rail carrier, it must also make the information available to any person online. Persons having difficulty accessing this information should either send a written inquiry addressed to the Director, Office of Public Assistance, Government Affairs, and Compliance or should telephone the Board's Office of Public Assistance, Government Affairs, and Compliance.

    [FR Doc. 2016-31906 Filed 1-3-17; 8:45 am] BILLING CODE 4915-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 RIN 0648-BG38 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery of the South Atlantic Region; Amendment 36 AGENCY:

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

    ACTION:

    Notice of availability; request for comments.

    SUMMARY:

    The South Atlantic Fishery Management Council (Council) has submitted Amendment 36 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP) for review, approval, and implementation by NMFS. If approved by the Secretary of Commerce, Amendment 36 would modify the special management zone (SMZ) procedure in the FMP to allow for the designation of spawning SMZs; modify the FMP framework procedures to allow spawning SMZs to be established or modified through the framework process; establish spawning SMZs off North Carolina, South Carolina, and Florida; establish transit and anchoring provisions in the spawning SMZs; and establish a sunset provision for most of the spawning SMZs. Amendment 36 would also move the boundary of the existing Charleston Deep Artificial Reef Marine Protected Area (MPA). The purpose of Amendment 36 is to protect spawning snapper-grouper species and their spawning habitat, and to reduce bycatch and bycatch mortality for snapper-grouper species, including speckled hind and warsaw grouper.

    DATES:

    Written comments on Amendment 36 must be received by March 6, 2017.

    ADDRESSES:

    You may submit comments on Amendment 36 identified by “NOAA-NMFS-2016-0153,” by either of the following methods:

    Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal at http://www.regulations.gov. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0153, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Frank Helies, NMFS Southeast Regional Office (SERO), 263 13th Avenue South, St. Petersburg, FL 33701.

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

    Electronic copies of Amendment 36 may be obtained from www.regulations.gov or the SERO Web site at http://sero.nmfs.noaa.gov. Amendment 36 includes an environmental assessment, Regulatory Flexibility Act analysis, regulatory impact review, and fishery impact statement.

    FOR FURTHER INFORMATION CONTACT:

    Frank Helies, NMFS SERO, telephone: 727-824-5305, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each regional fishery management council to submit any FMP or amendment to NMFS for review and approval, partial approval, or disapproval. The Magnuson-Stevens Act also requires that NMFS, upon receiving a plan or amendment, publish an announcement in the Federal Register notifying the public that the plan or amendment is available for review and comment.

    The FMP being revised by Amendment 36 was prepared by the Council and, if approved, would be implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.

    Background

    The Council developed Amendment 36 to protect spawning snapper-grouper species and their spawning habitat by prohibiting fishing for or harvest of snapper-grouper species in certain areas year-round in Federal waters of the South Atlantic. Areas designated for protection would include habitat characteristics, bottom topography (hard and live bottom), and currents that provide essential fish habitat important for spawning snapper-grouper species. The Council determined that protecting spawning snapper-grouper and their associated habitats would allow these species to produce more larvae, and may subsequently increase snapper-grouper populations.

    The Council also developed Amendment 36 to reduce bycatch and bycatch mortality of snapper-grouper species, including speckled hind and warsaw grouper. The snapper-grouper fishery in the South Atlantic is a highly regulated, multi-species fishery. Discards in the fishery can occur due to regulations, such as closed seasons, possession or size limits, or from catch and release of these species. For snapper-grouper species prohibited from harvest, such as speckled hind and warsaw grouper, fish discarded due to regulations are considered bycatch. The deep-water snapper-grouper species are further impacted due to high discard mortality rates (low survivability due to barotrauma). The Council concluded that prohibiting the use of certain fishing gear in specified areas where snapper-grouper are known to occur and possibly spawn would reduce encounters with these species and subsequently provide protection for reproduction. Spawning SMZs could provide long-term beneficial biological and socio-economic effects if spawning fish are sufficiently protected.

    The Council has identified a total of five areas proposed to be considered as spawning SMZs in the South Atlantic off North Carolina, South Carolina, and Florida. These areas have been identified based on the documented occurrence of snapper-grouper species and analysis of spawning data, recommendations from the Council's MPA Expert Work Group and Snapper-Grouper Advisory Panel, as well as cooperative research and public recommendations.

    Amendment 36 also contains a 10-year sunset provision that would apply to most of the proposed spawning SMZs. The sunset provision would allow for most of the spawning SMZs to expire 10 years following the implementation date unless they are renewed. When deciding whether to renew a spawning SMZ, the Council may consider the evidence of spawning by snapper-grouper species in the spawning SMZ and whether a spawning SMZ is being monitored. The Council concluded that a 10-year sunset provision would help to ensure that spawning SMZs are monitored and evaluated during this period to document snapper-grouper spawning within the sites.

    The Council developed a system management plan (SMP) for the spawning SMZs proposed in Amendment 36. The SMP describes in detail the monitoring and evaluation requirements for the proposed spawning SMZs. The Council recognizes that monitoring the proposed spawning SMZs by academic, state, or NMFS personnel is necessary to evaluate their effectiveness; therefore, the SMP outlines the potential monitoring partners and their roles.

    In addition to the spawning SMZs proposed for a similar purpose through Amendment 36, the Council originally designated the Charleston Deep Artificial Reef MPA, located off South Carolina, in Amendment 14 to the Snapper-Grouper FMP (74 FR 1621, January 13, 2009) to add protected snapper-grouper habitat and contribute to adding fish biomass. Recently, the State of South Carolina worked with the U.S. Army Corps of Engineers to modify the boundary of this site to include additional substrate material that was sunk by the state in the area of this MPA. The State of South Carolina requested the Council shift the boundary of the existing Charleston Deep Artificial Reef MPA to match the new boundary of the artificial reef site. Amendment 36 would align the Charleston Deep Artificial Reef MPA boundary with the site permitted by the U.S. Army Corps of Engineers, while retaining the size of the current MPA. Amendment 36 would move the existing boundary around the Charleston Deep Artificial Reef MPA 1.4 mi (2.3 km) to the northwest.

    Actions Contained in Amendment 36

    Amendment 36 includes actions to modify the SMZ procedure in the FMP to allow for the designation of spawning SMZs; modify the FMP framework procedures to allow spawning SMZs to be established or modified through the framework process; and establish spawning SMZs off North Carolina, South Carolina, and Florida. Additional actions in Amendment 36 would establish transit and anchoring provisions in the spawning SMZs, and establish a sunset provision for most of the spawning SMZs. The amendment would also move the existing Charleston Deep Artificial Reef MPA 1.4 mi (2.3 km) northwest to match the permitted site boundary.

    Modify the SMZ Procedures in the FMP to Allow Designation of Spawning SMZs

    The existing SMZ procedure in the FMP addresses the use of certain gear in areas including artificial reefs, fish attraction devices, and other modified areas of habitat for fishing. Possession limits can also be regulated in SMZs. Amendment 36 would allow the Council to designate important spawning areas as spawning SMZs to provide additional protection to some existing Essential Fish Habitat-Habitat Areas of Particular Concern for snapper-grouper species. The Council concluded that designating areas as spawning SMZs is important to protect snapper-grouper species and habitat where these species spawn. Furthermore, the Council concluded that the spawning SMZs in Amendment 36 would enhance reproduction for snapper-grouper species and thus increase the number of larvae that are produced by the species.

    Modify the FMP Framework Procedures for Spawning SMZs

    Amending the FMP can require more detailed analyses and requires a lengthier prescribed timeline prior to implementation. However, the current FMP contains framework procedures to allow the Council to modify certain management measures, such as annual catch limits and other management measures, via an expedited process (see 50 CFR 622.194; 56 FR 56016, October 31, 1991). Currently, SMZs cannot be modified under the framework process, so any changes to SMZs are required to be done through an FMP amendment. In Amendment 36, the Council has decided to include changes to spawning SMZs, such as boundary modifications and the establishment or removal of spawning SMZs, under the framework process. For example, this proposed action would allow the Council to remove a spawning SMZ if monitoring efforts do not document evidence of spawning snapper-grouper species within the boundary. The proposed revisions to the FMP framework procedures would also allow the Council to remove the proposed 10-year sunset provision for a proposed spawning SMZ if monitoring efforts document snapper-grouper species' spawning inside a spawning SMZ. The Council has decided that changing spawning SMZs through an expedited process can have beneficial biological and socio-economic impacts, especially if the changes respond to newer information, such as spawning locations for snapper-grouper species. The Council has concluded that the framework process will allow adequate time for the public to comment on any proposed change related to a spawning SMZ.

    Establish Spawning SMZs off North Carolina, South Carolina, and Florida

    The existing South Atlantic SMZs restrict the use of certain fishing gear in areas including artificial reefs, fish attraction devices, and other modified areas of habitat for fishing (50 CFR 622.182). Possession limits can also be regulated in SMZs. The original FMP established SMZs for artificial reefs to restrict certain fishing gear in those areas (48 FR 49463, August 31, 1983). Currently, there are no spawning SMZs for snapper-grouper in the South Atlantic. Amendment 36 proposes to establish five snapper-grouper spawning SMZs in the South Atlantic off North Carolina, South Carolina, and Florida.

    Fishing for or harvest of snapper-grouper species within the proposed spawning SMZs would be prohibited year-round. Certain other activities in the spawning SMZs would be restricted, including transiting with snapper-grouper species on board and anchoring.

    Another purpose of spawning SMZs is to reduce bycatch and bycatch mortality of snapper-grouper species, including speckled hind and warsaw grouper. Currently, retention of speckled hind and warsaw grouper is prohibited in Federal waters in the South Atlantic. Prohibiting the targeting or harvest of snapper-grouper species in specified areas where these species are known to occur and possibly spawn would reduce encounters with these deep-water species and provide protection for reproduction. The Council concluded that protecting snapper-grouper species within the spawning SMZs could enhance the opportunity for these species to reproduce and provide more larvae into the environment. Spawning SMZs would also allow opportunities to monitor population changes in snapper-grouper species and further refine protection of spawning habitat.

    Establish Transit and Anchoring Provisions in Spawning SMZs

    Amendment 36 would allow vessels to transit through the proposed spawning SMZs with snapper-grouper species on board when fishing gear is properly stowed. “Properly stowed” means that trawl or try nets and the attached doors must be out of the water, but would not be required to be on deck or secured below deck. Terminal gear (hook, leader, sinker, flasher, or bait) used with automatic reels, bandit gear, buoy gear, handline, or rod and reel would have to be disconnected and stowed separately from such fishing gear and sinkers would have to be disconnected from down riggers and stowed separately. Vessels in the spawning SMZs would be prohibited from fishing for, harvest, or possession of snapper-grouper species year-round in these areas. Except for the experimental artificial reefs Area 51 and Area 53 off South Carolina proposed as spawning SMZs, persons on board a vessel would not be allowed to anchor, use an anchor or chain, or use a grapple and chain while in spawning SMZs. Fishermen would continue to be allowed to troll for pelagic species such as dolphin, tuna, and billfish in spawning SMZs.

    Establish a Sunset Provision for the Spawning SMZs

    Amendment 36 would establish a 10-year sunset provision for the establishment of the proposed spawning SMZs, except for the Area 51 and Area 53 Spawning SMZs, which will remain in effect indefinitely. Thus, except for the latter two areas, the proposed spawning SMZs and their associated management measures would be effective for 10 years following the implementation of a final rule for Amendment 36. For the proposed spawning SMZs and management measures subject to the sunset provision to extend beyond 10 years, the Council would need to evaluate the effectiveness of the spawning SMZs for conserving and protecting spawning snapper-grouper species, and subsequently take further action. The Council will regularly evaluate all of the spawning SMZs over the 10-year period. They concluded that this period was an appropriate timeframe to monitor the sites and determine whether a sufficient level of spawning by snapper-grouper species occurs to justify continued protection as spawning SMZs.

    Move the Existing Charleston Deep Artificial Reef MPA

    Amendment 36 would move the existing Charleston Deep Artificial Reef MPA 1.4 mi (2.3 km) northwest to match the boundary of the U.S. Army Corps of Engineers' permitted artificial reef area at that location. The size of the MPA would remain the same. The Council originally designated the current area as an artificial reef site in Amendment 14. The State of South Carolina has worked with the U.S. Army Corps of Engineers to modify the boundary of this site to include material recently sunk by the state in the area and has requested the Council shift their boundary of the existing Charleston Deep Artificial Reef MPA to match the new boundary of the U.S. Army Corps of Engineers' permitted artificial reef area.

    A proposed rule that would implement measures outlined in Amendment 36 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable laws. If that determination is affirmative, NMFS will publish a proposed rule in the Federal Register for public review and comment.

    Consideration of Public Comments

    The Council has submitted Amendment 36 for Secretarial review, approval, and implementation. Comments on Amendment 36 must be received by March 6, 2017. Comments received during the respective comment periods, whether specifically directed to the amendment or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve Amendment 36. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 29, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-31896 Filed 1-3-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 160614521-6999-01] RIN 0648-BF96 Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Amendment to Regulations Implementing the Coastal Pelagic Species Fishery Management Plan; Change to Pacific Mackerel Management Cycle From Annual to Biennial AGENCY:

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

    ACTION:

    Proposed rule.

    SUMMARY:

    The Coastal Pelagic Species (CPS) Fishery Management Plan (FMP) states that each year the Secretary will publish in the Federal Register the final specifications for all stocks in the actively managed stock category, which includes Pacific mackerel. NMFS is proposing to change the management framework for Pacific mackerel to set specifications biennially instead of on an annual basis from the 2017 fishing season forward.

    DATES:

    Comments must be received by February 3, 2017.

    ADDRESSES:

    You may submit comments on this document identified by NOAA-NMFS-2016-0053, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0053, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Barry A. Thom, Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Joshua Lindsay.

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

    FOR FURTHER INFORMATION CONTACT:

    Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the Pacific mackerel fishery in the U.S. Exclusive Economic Zone (EEZ) off the Pacific coast (California, Oregon, and Washington) in accordance with the CPS FMP. The FMP states that each year the Secretary will publish in the Federal Register the specifications for all stocks in the actively managed stock category, which includes Pacific mackerel. In 2013 the Pacific Fishery Management Council (Council) recommended that the harvest specification process for Pacific mackerel move from a 1-year management cycle to a 2-year management cycle beginning in 2015. The Council recommended this revision to the management cycle under the CPS FMP's framework mechanism, which allows such changes by rulemaking without formally amending the fishery management plan itself. NMFS published the annual specifications for Pacific mackerel for the 2015-16 and 2016-17 fishing seasons to keep pace with the schedule of the fishery, and is now proposing to change the annual notice requirement under the framework mechanism of the CPS FMP. This change will allow 2 years of harvest specifications to be implemented with one rulemaking, beginning with the 2017 fishing season.

    The CPS FMP and its implementing regulations require NMFS to set annual catch levels for the Pacific mackerel fishery based on the annual specification framework and control rules in the FMP. These control rules include the harvest guideline (HG) control rule, which in conjunction with the overfishing limit (OFL), acceptable biological catch (ABC) and annual catch limit (ACL) rules in the FMP are used to manage harvest levels for Pacific mackerel, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. Annual estimates of biomass are an explicit part of these various harvest control rules, therefore, annual stock assessments are currently conducted for Pacific mackerel to provide annual estimates of biomass. Then, during public meetings each year, the estimated biomass for Pacific mackerel from these assessments is presented to the Council's CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fishery are reviewed and discussed. The biomass estimate is then presented to the Council along with recommendations and comments from the Team, Subpanel and SSC. Following review by the Council and after hearing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS. Based on these recommendations, NMFS implements these catch specifications for each fishing year and publishes the specifications annually.

    Little new information is available for informing Pacific mackerel stock assessments from one year to the next. Therefore, stock assessment scientists at the Southwest Fisheries Science Center along with the SSC determined that conducting stock assessments annually is not necessary to manage Pacific mackerel sustainably; conducting assessments every 2 years can provide the necessary scientific information to continue to manage the stock sustainably. Annual landings of Pacific mackerel have also remained at historically low levels with landings averaging 5,000 mt over the last 10 years, well below the annual quotas over this time period. This highlights that the biomass of this stock is not being greatly impacted by fishing pressure. Low landings since 2011 are also one of the limitations of the recent stock assessments because they result in limited fishery-dependent sample information to feed into the stock assessment.

    This proposed action would change the review and implementation schedule for setting Pacific mackerel harvest specifications as well as the stock assessment cycle, allowing NMFS to implement 2 years of catch specifications with a single notice and comment rulemaking. The Council would also review the Pacific mackerel biomass estimates every 2 years. Reviewing biomass estimates and implementing catch specifications for 2 years at a time instead of 1 would allow NMFS and the Council to use available time and resources in a more efficient manner, while still preserving the conservation and management goals of the FMP, and using the best available science. If this proposal is approved, NMFS would set biennial specifications from the 2017 fishing season forward.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the Assistant Administrator, NMFS, has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:

    For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

    The small entities that would be affected by the proposed action are the vessels that harvest Pacific mackerel as part of the West Coast CPS finfish fleet and are all considered small businesses under the above size standards. Pacific mackerel are principally caught off southern California within the limited entry portion (south of 39 degrees N. latitude; Point Arena, California) of the fishery. Currently there are 56 vessels permitted in the Federal CPS limited entry fishery off California of which about 25 to 39 vessels have been annually engaged in harvesting Pacific mackerel in recent years (2009-2015). For those vessels that caught Pacific mackerel during that time, the average annual per vessel revenue has been about $1.25 million. The individual vessel revenue for these vessels is well below the threshold level of $11 million; therefore, all of these vessels are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule is considered to equally affect all of these small entities in the same manner.

    This proposed action changes the management schedule for Pacific mackerel to allow 2 years of specifications to be set at one time. The general procedures for setting specifications as described in the CPS FMP (public meetings, periodic reviews of the estimates of stock biomass, tracking catch, etc.) remain unchanged. This action is not expected to have significant direct or indirect socioeconomic impacts because harvest limits and management measures influencing ex-vessel revenue and personal income, such as the general harvest control rules for actively managed species in the CPS FMP remain unchanged by this proposed action. Instead, the proposed action only changes the timing the specifications are set from an annual to biennial process.

    Based on the disproportionality and profitability analysis above, the proposed action, if adopted, will not have a significant economic impact on a substantial number of small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.

    List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: December 28, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 660 as follows:

    PART 660—FISHERIES OFF WEST COAST STATES 1. The authority citation for part 660 continues to read as follows: Authority:

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

    2. In § 660.508, add paragraph (e) to read as follows:
    § 660.508 Annual specifications.

    (e) Pacific mackerel. Every 2 years the Regional Administrator will determine, and publish in the Federal Register, harvest specifications for 2 consecutive fishing seasons for Pacific mackerel.

    [FR Doc. 2016-31900 Filed 1-3-17; 8:45 am] BILLING CODE 3510-22-P
    82 2 Wednesday, January 4, 2017 Notices DEPARTMENT OF AGRICULTURE Forest Service Bridger-Teton Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Bridger-Teton Resource Advisory Committee (RAC) will meet in Kemmerer, Wyoming and Afton, Wyoming. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site: http://www.fs.usda.gov/main/btnf/workingtogether/advisorycommittees.

    DATES:

    The meeting will be held on January 31, 2017, at 6:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESSES:

    The meeting will be held at the Lincoln County Courthouse, 925 Sage Avenue, Suite 301, Kemmerer, Wyoming; and the Lincoln County Branch Office, Conference Room, 421 Jefferson Avenue, Afton, Wyoming. The public is welcome to attend in person or via teleconference. For anyone who would like to attend via teleconference, please visit the Web site listed in the Summary section or please contact the person listed under For Further Information.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Kemmerer Ranger District. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Adriene Holcomb, Designated Federal Officer, by phone at 307-828-5110, or via email at [email protected].

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to review and recommend projects under Title II of the Act.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Adriene Holcomb, District Ranger, 308 US Highway 189, Kemmerer, Wyoming, 83101; by email to [email protected], or via facsimile to 307-828-5135.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: December 22, 2016. Adriene Holcomb, District Ranger.
    [FR Doc. 2016-31869 Filed 1-3-17; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Bridger-Teton Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Bridger-Teton Resource Advisory Committee (RAC) will meet in Kemmerer, Wyoming and Afton, Wyoming. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site: http://www.fs.usda.gov/main/btnf/workingtogether/advisorycommittees.

    DATES:

    The meeting will be held on January 30, 2017, at 6:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESSES:

    The meeting will be held at the Lincoln County Courthouse, 925 Sage Avenue, Suite 301, Kemmerer, Wyoming; and the Lincoln County Branch Office, Conference Room, 421 Jefferson Avenue, Afton, Wyoming. The public is welcome to attend in person or via teleconference. For anyone who would like to attend via teleconference, please visit the Web site listed in the Summary section or please contact the person listed under For Further Information.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Kemmerer Ranger District. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Adriene Holcomb, Designated Federal Officer, by phone at 307-828-5110, or via email at [email protected].

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to review and recommend projects under Title II of the Act.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Adriene Holcomb, District Ranger, 308 US Highway 189, Kemmerer, Wyoming, 83101; by email to [email protected], or via facsimile to 307-828-5135.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: December 22, 2016. Adriene Holcomb, District Ranger.
    [FR Doc. 2016-31867 Filed 1-3-17; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE [Docket No. 161102999-6999-01] Privacy Act of 1974, New System of Records AGENCY:

    Office of the Secretary, U.S. Department of Commerce.

    ACTION:

    Notice of a new Privacy Act system of records: COMMERCE/DEPT-27, Investigation and Threat Management Records.

    SUMMARY:

    The Department of Commerce (Department) is issuing this notice of its intent to establish a new system of records entitled “COMMERCE/DEPARTMENT-27, Investigation and Threat Management Records.” This action is being taken to update the Privacy Act notice and Department Notice to Amend All Privacy Act System of Records. We invite the public to comment on the items noted in this publication. This system allows the Department of Commerce to conduct investigations and analyses to identify and/or assess critical threats to the Department's mission, operations, or activities; prevent or mitigate such threats from adversely affecting Department personnel, facilities, property, or assets through strategic and tactical approaches; and collaborate with other national security and law enforcement entities as appropriate.

    DATES:

    To be considered, written comments must be submitted on or before February 3, 2017. Unless comments are received, the new system of records will become effective as proposed on February 13, 2017. If comments are received, the Department will publish a subsequent notice in the Federal Register within 10 days after the comment period closes, stating that the current system of records will remain in effect until publication of a final action in the Federal Register.

    ADDRESSES:

    You may submit written comments by any of the following methods:

    Email: [email protected] Include “Privacy Act COMMERCE/DEPT-27, Investigation and Threat Management Records” in the subtext of the message.

    Fax: (202) 482-4979, marked to the attention of Mr. Michael Harman.

    Mail: Mr. Michael Harman, Office of Security, U.S. Department of Commerce, 1401 Constitution Ave. NW., Room 1067, Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Michael Harman, as noted in the ADDRESSES section above.

    SUPPLEMENTARY INFORMATION:

    This notice announces the Department's proposal for a new system of records being established under the Privacy Act of 1974 for Investigation and Threat Management Records. This new system of records is to account for the collection, maintenance, and use of information in connection with mission critical threats to the Department.

    In a notice of proposed rulemaking, which is published separately in today's Federal Register, the Department is proposing to exempt records maintained in this system from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), and (k)(5). The Department is instituting this new system of records in accordance with the Privacy Act of 1974, as amended, Title 5 United States Code (U.S.C.) 552(e)(4) and (11); and Office of Management and Budget (OMB) Circular A-130, Appendix I, Federal Agency Responsibilities for Maintaining Records About Individuals.

    The system will be effective as proposed, on the date in the DATES section of this notice, unless comments are received which would require a contrary determination. If comments are received, the Department will publish a subsequent notice in the Federal Register within 10 days after the comment period closes, stating that the current system of records will remain in effect until publication of a final action in the Federal Register.

    COMMERCE/DEPT-27 System Name:

    Investigation and Threat Management Records.

    Security Classification:

    Unclassified, controlled unclassified information, for official use only, law enforcement sensitive, and classified.

    System Locations:

    Departmental Office of Security, OS, Herbert C. Hoover Building, Washington, DC 20230.

    Office of Security, 551 John Carlyle Street, Alexandria, VA 22314.

    Office of Security, 100 Bureau Drive, Gaithersburg, MD 20899.

    Office of Security, 1315 East-West Highway, Silver Spring, MD 20910.

    Office of Security, 325 Broadway St. Boulder, CO 80305.

    Office of Security, 4600 Silver Hill Road, Suitland, MD 20746.

    Categories of Individuals Covered by the System:

    The categories of individuals covered by this system include Department employees, former employees, and prospective employees; political appointees; research associates and guest workers; interns and detailees to the Department; foreign nationals and locally employed staff working for or with Department employees, and are assigned to or salaried by other U.S. government agencies in locations worldwide; employees of contractors used, or which may be used, by the Department; employees, principal Officers, and company information of contractors/businesses retained, or which may be retained by the Department, to include subcontractors; individuals who have access, had access, will require access, or attempt access to any Department owned or leased facility, communications equipment, or information technology system; employees of other U.S. government agencies, foreign officials, or members of the public who visit the Department or have or may have other associations with the Department; family members, dependents, relatives, and individuals with a personal association to Department employees, former employees, and prospective employees; principal Officers and employees of organizations, firms, or institutions which were recipients or beneficiaries, or prospective recipients or beneficiaries, of grants, loans, or loan guarantee programs of the Department; sub-grantees, lessees, licensees or other persons engaged in business with the Department; and nominees, members, and former members of public advisory committees, boards, trade missions and export councils that may be part of the Department or associated with Department function.

    The system also includes current and former employees of the Department and such other persons and entities whose association with the Department relates or may relate to the alleged violations of the Department's policies, rules of conduct, or any other criminal or civil misconduct, which affects the integrity, facilities, information, or assets of or within the Department. The identities of individuals and the files associated with them may be: (1) Received by referral; or (2) Initiated at the discretion of the Investigations and Threat Management Division (“ITMD”) in the conduct of assigned duties, and include all of the categories listed in the preceding paragraph, as well as the following: Employees or contractors of other U.S. government agencies, named and unnamed, who are working with or supporting the investigative or intelligence functions of the ITMD; individuals identified in U.S. visa, border, immigration and naturalization benefit data, including arrival and departure data, that are included in results seeking Department-related individuals; individuals identified by U.S. or foreign information or intelligence reporting that are included in results seeking Department-related individuals; individuals who are: Witnesses; complainants; confidential or non-confidential informants; suspects; defendants; and parties who have been identified by the ITMD or by other agencies, constituent units of the Department, and members of the general public in connection with the authorized functions of the ITMD.

    Categories of Records in the System:

    Categories in this system include individual identifying records, which may include some or all of the following: Names and aliases; phone numbers, addresses and other contact information; date and place of birth; Social Security number; driver license, vehicle identification, and license plate numbers; visa, passport, and citizenship records, data, and documents; physical characteristics, sex, gender, and ethnicity; education, employment and military service history; salary and duty station; human resource and personnel data; affiliations; travel history; tax and financial records; credit references and credit records; medical history; records related to drug and alcohol use; biometric data; license and permit records, data, and documents; criminal and arrest records; dates and purpose of visits to foreign countries; names of spouses, relatives, references, affiliations, and personal associates; activities; special access program requests; facility and computer access logs; clearance adjudication and investigation data; and security and suitability materials.

    Investigative files may include additional information such as allegations and referrals received and method received; publically and privately obtained internet data and items posted to social networking sites; information from background investigations; incidents involving unauthorized access to classified national security information (“classified”); individual identifying records; facility access logs; information processing use and activity records; classified and unclassified intelligence reports; activities having a potential bearing on the security of Department operations domestic and abroad, to include those involving criminal or foreign intelligence activities; photographic images, videos, audio recordings, CDs, DVDs, tapes; email and text messages; letters, emails, memoranda, notes, forms, and reports; exhibits, evidence, statements, affidavits, and correspondence; subpoena and grand jury information; materials and information on subjects of inquiries or investigations conducted by or on behalf of other Federal agencies; activities other agencies believe may have a bearing on U.S. foreign policy interests; reports of policy, physical, information, or cyber security violations or infractions, and recommendations for remedial actions and mitigation; activities and records related to Department cyber infrastructure, intrusion and network defense; litigants in civil suits and criminal prosecutions of interest to the ITMD; other documentation pertaining to investigative or analytical efforts by the ITMD to identify threats to the Department's personnel, property, facilities, and information; and all other data included in inquiries or investigations into possible illegal activity or violation conducted by the ITMD.

    This system also includes investigation case control and management documents that serve as the basis for conducting investigations, such as documents requesting the investigation and documents used in case management control such as case inventories, lead sheets, other tasking documents, and transfer forms; intelligence requirements, analysis, and reporting; operational records; articles, open source data, and other published information on individuals and events of interest to the ITMD.

    Records related to the Department's Insider Threat Program regarding the unauthorized disclosure of sensitive and classified information may include all categories mentioned above, and unclassified and classified insider threat inquiries, investigations and activities; counterintelligence complaints, inquiries and investigations; potential threats to Department resources and information assets; incoming referrals; referrals to internal and external partners; indicator data sets from Department bureaus and operating units; analytical thresholds, triggers, and analysis of records; statistical reports; information collected through information technology records, information assurance, enterprise audit, or continuous evaluation; Department component information and reporting about potential insider threats regarding personnel user names and aliases, levels of network access, audit data, logs and information regarding Department electronic devices; all other documents, reports, and correspondence received, generated or maintained in the course of managing insider threat activities and conducting investigations; and other unclassified and classified insider threat requirements per Executive Order 13587.

    Other classified and unclassified files which may not be related to investigative functions and may include legal guidance; U.S. and foreign information and intelligence assessments and reporting; particularly sensitive or protected information, including information held by special access programs, intelligence, law enforcement, inspector general, or other sources or programs; vulnerability, risk, and threat information and assessments; Department acquisition and supply chain risk management information; ITMD budgetary and program management files and metrics; training materials; final versions and drafts of regulations, policies, and laws; employee travel schedules and foreign travel briefings; other briefing and debriefing statements; certifications pertaining to qualifications for employment, including but not limited to education, firearms, first aid, and CPR; deputation records; Freedom of Information Act and Privacy Act requests, and congressional inquiries to the Office of Security; executive correspondence; hiring actions; contractual agreements and information; nondisclosure agreements; performance evaluations and disciplinary files; payroll data; travel authorization and voucher reports; and documentation related to security controls, internal procedures, and policies.

    Authority for Maintenance of the System:

    15 U.S.C. 1501 et. seq.; 28 U.S.C. 533-535; 44 U.S.C. 3101 (Records Management); 5 U.S.C. 301 (Departmental Regulations); 5 U.S.C. 7311 (Suitability, Security, and Conduct); 5 U.S.C. 7531-33 (Adverse Actions, Suspension and Removal, and Effect on Other Statutes); 18 U.S.C. (Crimes and Criminal Procedures); Executive Order 10450 (Security Requirements for Government Employment); Executive Order 13526 and its predecessor orders (Classified National Security Information); Executive Order 12968 (Access to Classified Information); HSPD-12, 8/27/04 (Homeland Security Presidential Directive); Executive Order 13356, 8/27/04 (Strengthening the Sharing of Terrorism Information to Protect Americans); Executive Order 13587 (Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information); Public Law 108-458 (Intelligence Reform and Terrorism Prevention Act of 2004); Intelligence Authorization Act for FY 2010, Public Law 111-259; Title 50 U.S.C. 402a, Coordination of Counterintelligence Activities; Executive Order 12829 (National Industrial Security Program); Committee for National Security System Directive 505 (Supply Chain Risk Management); Presidential Memorandum National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs.

    Purposes:

    This system is used by authorized personnel to maintain records that reflect and support the ITMD mission, including various law enforcement and intelligence functions related to identifying, assessing, and/or managing the Department's mission critical security threats. Threats to the Department's mission include those posed by influential criminal activity; foreign intelligence and security services and non-state actors; terrorism; and extremist groups or unstable persons. Threats also include significant events that may require the Department to take emergency action, such as geopolitical crises, natural disasters, and pandemics. This system will: manage all matters relating to the storage, facilitation and enabling of documentation of activities associated with proactive and reactive assessments, complaints, inquiries, and investigations; process and house information and intelligence; identify risks, vulnerabilities, and threats to Department and information assets and activities; and track referrals of potential interest to internal and external partners. It will provide a basis for the development and recommendation of solutions to deter, detect, and/or mitigate potential risks, vulnerabilities, and threats identified; provide statistical reports of ITMD actions; and meet other reporting requirements.

    Routine uses of records maintained in the system, including categories of users and the purposes of such uses:

    1. In the event that a system of records maintained by the Department to carry out its functions indicates a violation or potential violation of law or contract, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute or contract, or rule, regulation, or order issued pursuant thereto, or the necessity to protect an interest of the Department, the relevant records in the system of records may be referred, as a routine use, to the appropriate agency, whether federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute or contract, or rule, regulation or order issued pursuant thereto, or protecting the interest of the Department.

    2. A record from this system of records may be disclosed, as a routine use, to a federal, state or local agency maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to a Department decision concerning the assignment, hiring or retention of an individual, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit.

    3. A record from this system of records may be disclosed, as a routine use, to a federal, state, local, or international agency, in response to its request, in connection with the assignment, hiring or retention of an individual, the issuance of a security clearance, the reporting of an investigation of an individual, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.

    4. A record from this system of records may be disclosed, as a routine use, in the course of presenting evidence to a court, magistrate or administrative tribunal, including disclosures to opposing counsel in the course of settlement negotiations.

    5. A record in this system of records may be disclosed, as a routine use, to a Member of Congress submitting a request involving an individual when the individual has requested assistance from the Member with respect to the subject matter of the record.

    6. A record in this system of records which contains medical information may be disclosed, as a routine use, to the medical advisor of any individual submitting a request for access to the record under the Act and 15 CFR part 4, subpart b, if, in the sole judgment of the Department, disclosure could have an adverse effect upon the individual, under the provision of 5 U.S.C. 552a(f)(3) and implementing regulations at 15 CFR 4.26.

    7. A record in this system of records may be disclosed, as a routine use, to the Office of Management and Budget in connection with the review of private relief legislation as set forth in OMB Circular No. A-19 at any stage of the legislative coordination and clearance process as set forth in that Circular.

    8. A record in this system of records may be disclosed, as a routine use, to the Department of Justice in connection with determining whether disclosure thereof is required by the Freedom of Information Act (5 U.S.C. 552).

    9. A record in this system of records may be disclosed, as a routine use, to a contractor of the Department having need for the information in the performance of the contract, but not operating a system of records within the meaning of 5 U.S.C. 552a(m).

    10. A record in this system may be transferred, as a routine use, to the Office of Personnel Management: For personnel research purposes; as a data source for management information; for the production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained; or for related manpower studies.

    11. A record from this system of records may be disclosed, as a routine use, to the Administrator, General Services Administration (GSA), or his designee, during an inspection of records conducted by GSA as part of that agency's responsibility to recommend improvements in records management practices and programs, under authority of 44 U.S.C. 2904 and 2906. Such disclosure shall be made in accordance with the GSA regulations governing inspection of records for this purpose, and any other relevant (i.e. GSA or Department) directive. Such disclosure shall not be used to make determinations about individuals.

    12. A record in this system of records may be disclosed to appropriate agencies, entities and persons when: (1) It is suspected or determined that the security or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or whether systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.

    13. A record in this system of records may be disclosed to any other agency or department of the Federal Government pursuant to statutory intelligence responsibilities.

    14. A record in this system of records may be disclosed to any Federal, state, municipal, foreign or international law enforcement or other relevant agency or organization for law enforcement or counterterrorism purposes: threat alerts and analyses, protective intelligence and counterintelligence information, information relevant for screening purposes, and other law enforcement and terrorism-related information as needed by appropriate agencies of the Federal government, states, or municipalities, or foreign or international governments or agencies.

    15. A record in this system of records may be disclosed to any Federal agency following a response to its subpoena or to a prosecution request that such record be released for the purpose of its introduction to a grand jury.

    16. A record from this system of records may be disclosed, as a routine use, to representatives of the Department of Justice (DOJ) or of any other agency that is responsible for representing Department interests in connection with judicial, administrative or other proceedings. This includes circumstances in which (1) the ITMD; (2) any employee of the ITMD in his or her official capacity; (3) any employee of the ITMD in his or her individual capacity, where DOJ has agreed to represent or is considering a request to represent the employee; or (4) the United States or any of its components, is a party to pending or potential litigation or has an interest in such litigation; in which the Department or the ITMD is likely to be affected by the litigation, or in which the Department or the ITMD determines that the use of such records by the DOJ is relevant and necessary to the litigation; provided, however, that in each case, the Department or the ITMD determines that disclosure of records to the DOJ or representative is a use of the information that is compatible with the purpose for which the records were collected.

    17. Records may also be disclosed to representatives of DOJ and other U.S. Government entities, to the extent necessary, to obtain their advice on any matter relevant to an ITMD investigation.

    18. A record in this system of records may be disclosed, as a routine use, to any source from which additional information is requested, either private or governmental, to the extent necessary to solicit information relevant to any investigation or inquiry.

    19. A record in this system of records may be disclosed, as a routine use, to representatives of the Office of Personnel Management, the Office of Special Counsel, the Merit Systems Protection Board, the Federal Labor Relations Authority, the Equal Employment Opportunity Commission, the Office of Government Ethics, and other Federal agencies in connection with their efforts to carry out their responsibilities to conduct examinations, investigations, and/or settlement efforts, in connection with administrative grievances, complaints, claims, or appeals filed by an employee, and such other functions promulgated in 5 U.S.C. 1205-06.

    20. A record in this system of records may be disclosed, as a routine use, to the Departments of the Treasury and Justice in circumstances in which ITMD seeks to obtain, or has in fact obtained, an ex parte court order to obtain tax return information from the Internal Revenue Service.

    21. A record in this system of records may be disclosed, as a routine use, to appropriate Congressional Committees in furtherance of their respective oversight functions.

    22. A record in this system of records may be disclosed, as a routine use, to student volunteers, individuals working under a personal services contract, and other workers who technically do not have the status of Federal employees, when they are performing work for the Department of Commerce and/or its agencies, as authorized by law, as needed to perform their assigned Agency functions.

    Disclosure to consumer reporting agencies:

    Not applicable.

    Policies and Practices for Storing, Retrieving, Accessing, Retaining, and Disposing of Records in the System: Storage:

    Records in this system are on paper and/or in digital or other electronic form. Paper records are stored in secure rooms and storage cabinets or safes, and electronic records are stored as electronic/digital media and stored in secure file-servers within controlled environments. Both paper and electronic/digital records are accessed only by authorized personnel.

    Retrievability:

    Electronic searches may be performed by search criteria that include case numbers, names of individuals or organizations, Department-assigned identifier, and other key word search variations. Paper records are retrieved by indices cross-referenced to file numbers or other identifiers.

    Safeguards:

    Paper records are kept in locked cabinets located in secure rooms in guarded buildings, and used only by authorized screened personnel. Access to computerized files is password-protected and under the direct supervision of the system manager and is available only within the secure, access controlled rooms by authorized personnel.

    Retention and Disposal:

    Retention of the records varies depending upon the specific kind of record involved. The records are retired or destroyed in accordance with current published records schedules of the Department of Commerce and as approved by the National Archives and Records Administration.

    System Manager(s) and Address:

    The ITMD and Departmental Classified System Owners, depending on type of record, located at the Herbert C. Hoover Building, Washington, DC 20230.

    Notification Procedure:

    An individual requesting notification of existence of records on himself or herself should send a signed, written inquiry to the Deputy Chief FOIA Officer and Department Privacy Act Officer, Room 52010, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.

    Record Access Procedures:

    An individual requesting access to records on himself or herself should send a signed, written inquiry to the same address as stated in the Notification Procedure section above. The request letter should be clearly marked, “PRIVACY ACT REQUEST.” The written inquiry must be signed and notarized or submitted with certification of identity under penalty of perjury. Requesters should specify the record contents being sought.

    Contesting Record Procedures:

    An individual requesting corrections or contesting information contained in his or her records must send a signed, written request inquiry to the same address as stated in the Notification Procedure section above. Requesters should reasonably identify the records, specify the information they are contesting and state the corrective action sought and the reasons for the correction with supporting justification showing how the record is incomplete, untimely, inaccurate, or irrelevant. The Department's rules for access, for contesting contents, and for appealing initial determination by the individual concerned appear in 15 CFR part 4, Appendix B.

    Record Source Categories:

    Subject individuals; other Department of Commerce operating units; OPM, FBI and other Federal, state and local agencies; individuals and organizations that have pertinent knowledge about the subject; and those authorized by the individual to furnish information.

    These records may contain information obtained from the individual; persons having knowledge of the individual; persons having knowledge of incidents or other matters of investigative interest to the Department; other U.S. law enforcement agencies and court systems; pertinent records of other Federal, state, or local agencies or foreign governments; pertinent records of private firms or organizations; the intelligence community; and other public sources. The records also contain information obtained from interviews, review of records, and other authorized investigative techniques.

    System Exemptions from Certain Provisions of the Act:

    Pursuant to 5 U.S.C. 552a(j)(2), all information about an individual in the record which meets the criteria stated in 5 U.S.C. 552a(j)(2) are exempted from the notice, access and contest requirements of the agency regulations and from all parts of 5 U.S.C. 552a except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i). Pursuant to 5 U.S.C. 552a(k)(1), (k)(2) and (k)(5) on condition that the 5 U.S.C. 552a(j)(2) exemption is held to be invalid, all investigatory material in the record which meets the criteria stated in 5 U.S.C. 552a(k)(1), (k)(2) and (k)(5) are exempted from the notice, access, and contest requirements (under 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f)) of the agency regulations because of the necessity to exempt this information and material in order to accomplish the law enforcement function of the agency, to prevent disclosure of classified information as required by Executive Order 13526, to assure the protection of the President, to prevent subjects of investigation from frustrating the investigatory process, to prevent the disclosure of investigative techniques, to fulfill commitments made to protect the confidentiality of information, and to avoid endangering these sources and law enforcement personnel.

    Michael J. Toland, Department of Commerce, Deputy Chief FOIA Officer, Department Privacy Act Officer.
    [FR Doc. 2016-31315 Filed 12-30-16; 4:15 pm] BILLING CODE 3510-BX-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-475-819] Certain Pasta From Italy: Partial Rescission of Countervailing Duty Administrative Review; 2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is rescinding the administrative review of the countervailing duty (CVD) order on certain pasta from Italy, in part, for the period of review (POR) January 1, 2015, through December 31, 2015, based on the timely withdrawal of requests for review by seven companies; the administrative review continues for Liguori Pastificio dal 1820 S.p.A. (Liguori).

    DATES:

    Effective January 4, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Mary Kolberg, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington DC 20230; telephone: (202) 482-1785.

    SUPPLEMENTARY INFORMATION: Background

    On July 5, 2016, the Department published the notice of opportunity to request an administrative review of the CVD order on certain pasta from Italy for the POR January 1, 2015, through December 31, 2015.1 On July 29, 2016, Pastificio Zaffiri S.r.l. (Zaffiri), Pastificio Andalini, S.p.A. (Andalini), Premiato Pastificio Afeltra S.r.l. (Afeltra), La Fabbrica della Pasta di Gagnano S.A.S. di Antonio Moccia (La Fabbrica), Pastifico Labor S.R.L. (Labor), and GR.A.M.M. S.R.L. (GR.A.M.M.) each requested that the Department conduct an administrative review of their exports of subject merchandise.2 On August 1, 2016, Liguori and Tesa SrL (Tesa) also requested that the Department conduct an administrative review of their exports of subject merchandise.3 Pursuant to the requests received, and in accordance with 19 CFR 351.213(b), the Department initiated an administrative review of GR.A.M.M., La Fabbrica, Liguori, Andalini,, Labor, Zaffiri, Afeltra, and Tesa.4

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 81 FR 43584 (July 5, 2016).

    2See letter from Zaffiri, re: “Certain Pasta from Italy, C-475-819; Request for Administrative Review by Pastificio Zaffiri S.r.l.,” dated July 29, 2016; see also letter from Andalini, re: “Certain Pasta from Italy, C-475-819; Request for Administrative Review by Pastificio Andalini, S.p.A.,” dated July 29, 2016; see also letter from Afeltra, re: “Certain Pasta from Italy, C-475-819; Request for Administrative Review by Premiato Pastificio Afeltra S.r.l.,” dated July 29, 2016; see also letter from La Fabbrica, re: “Certain Pasta from Italy, C-475-819; Request for Administrative Review by La Fabbrica della Pasta di Gagnano S.A.S.,” dated July 29, 2016; see also letter from Labor, re: “Certain Pasta from Italy, C-475-819; Request for Administrative Review by Labor S.R.L.,” dated July 29, 2016; see also letter from GR.A.M.M., re: “Certain Pasta from Italy, C-475-819; Request for Administrative Review by GR.A.M.M. S.R.L.,” dated July 29, 2016.

    3See letter from Liguori, re: Certain Pasta from Italy: Countervailing Duty Administrative Review Request,” dated August 1, 2016; see also letter from Tesa, re: “Pasta from Italy; Request for Administrative Review,” dated August 1, 2016.

    4See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 FR 62720 (September 12, 2016).

    On November 7, 2016, Tesa timely withdrew its request for administrative review.5 On December 12, 2016, La Fabbrica, GR.A.M.M., Labor, Afeltra, Zaffiri, and Andalini timely withdrew their requests for an administrative review.6

    5See letter from Tesa, “Pasta from Italy: Withdrawal of request for administrative review,” dated November 7, 2016.

    6See letter from La Fabbrica della Pasta di Gragnano S.A.S., re: “Certain Pasta from Italy, C-475-819; Withdrawal of Request for Administrative Review by La Fabbrica della Pasta di Gragnano S.A.S.,” dated December 12, 2016; see also letter from GR.A.M.M. Srl, re: Certain Pasta from Italy, C-475-819; Withdrawal of Request for Administrative Review by GR.A.MM. Srl,” dated December 12, 2016; see also letter from Labor Srl, re: “Certain Pasta from Italy, C-475-819; Withdrawal of Request for Administrative Review by Labor Srl,” dated December 12, 2016; see also letter from Premiato Pastificio Afeltra S.r.l., re: “Certain Pasta from Italy, C-475-819; Withdrawal of Request for Administrative Review by Premiato Pastificio Afeltra S.rl.,” dated December 12, 2016; see also letter from Pastificio Zaffiri S.r.l., re: “Certain Pasta from Italy, C-475-819; Withdrawal of Request for Administrative Review by Pastificio Zaffiri S.r.l..,” dated December 12, 2016; see also letter from Pastifico Andalini, S.p.A., re: “Certain Pasta from Italy, C-475-819; Withdrawal of Request for Administrative Review by Pastificio Andalini, S.p.A.,” dated December 12, 2016.

    Partial Rescission of Review

    Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the party or parties that requested a review withdraws the request within 90 days of the publication date of the notice of initiation of the requested review. As noted above, requests for review were withdrawn, and parties withdrew their requests within 90 days of the publication date of the notice of initiation. Therefore, in accordance with 1 9 CFR 351.213(d)(1), we are rescinding this review with respect to Tesa, La Fabbrica, GR.A.M.M., Labor, Afeltra, Zaffiri, and Andalini. The administrative review will continue with respect to Liguori.

    Assessment

    The Department will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries of certain pasta from Italy. For the companies for which this review is rescinded, countervailing duties shall be assessed at rates equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the date of publication of this notice in the Federal Register.

    Notifications

    This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under an APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    This notice is issued and published in accordance with sections 751(a)(l) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 35l.213(d)(4).

    Dated: December 28, 2016. Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2016-31886 Filed 1-3-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-588-873] Certain Cold-Rolled Steel Flat Products From Japan: Initiation and Preliminary Results of Changed Circumstances Review, and Intent To Revoke Order in Part AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the “Department”) has initiated a changed circumstances review of, and is preliminarily revoking, in part, the antidumping duty (“AD”) order on certain cold-rolled steel flat products from Japan with respect to certain light gage cold-rolled flat-rolled steel for porcelain enameling meeting the requirements of ASTM A424 Type 1. The Department invites interested parties to comment on these preliminary results.

    DATES:

    Effective January 4, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Robert Bolling, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3434.

    SUPPLEMENTARY INFORMATION:

    Background

    On July 14, 2016, the Department published an AD order on certain cold-rolled steel flat products from Japan.1

    1See Certain Cold-Rolled Steel Flat Products from Japan and the People's Republic of China: Antidumping Duty Orders, 81 FR 45956 (July 14, 2016).

    On November 14, 2016, members of the domestic cold-rolled steel industry, ArcelorMittal USA LLC, AK Steel Corporation, Nucor Corporation, Steel Dynamics Inc., and United States Steel Corporation (collectively, “domestic producers” or “Petitioners” 2 ), requested that the Department conduct a changed circumstances review, to revoke, in part, the AD order on certain cold-rolled steel flat products from Japan with respect to certain light gage cold-rolled flat-rolled steel for porcelain enameling meeting the requirements of ASTM A424 Type 1. We did not receive comments from any other party.

    2 Each of these domestic producers was a petitioner in the investigation on cold-rolled steel flat products from Japan. See Certain Cold-Rolled Steel Flat Products from Japan: Affirmative Preliminary Determination of Sales at Less Than Fair Value and Preliminary Affirmative Determination of Critical Circumstances, 81 FR 11747, 11748 n. 10 (March 7, 2016).

    Scope of the Order

    The products covered by this order are certain cold-rolled (coldreduced), flat-rolled steel products, whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products covered also include products not in coils (e.g., in straight lengths) of a thickness of 4.75 mm or more and a width exceeding 150 mm and measuring at least twice the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross section where such cross-section is achieved subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

    (1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and

    (2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of this order are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

    • 2.50 percent of manganese, or • 3.30 percent of silicon, or • 1.50 percent of copper, or • 1.50 percent of aluminum, or • 1.25 percent of chromium, or • 0.30 percent of cobalt, or • 0.40 percent of lead, or • 2.00 percent of nickel, or • 0.30 percent of tungsten (also called wolfram), or • 0.80 percent of molybdenum, or • 0.10 percent of niobium (also called columbium), or • 0.30 percent of vanadium, or • 0.30 percent of zirconium

    Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.

    For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (“IF”)) steels, high strength low alloy (“HSLA”) steels, motor lamination steels, Advanced High Strength Steels (“AHSS”), and Ultra High Strength Steels (“UHSS”). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. Motor lamination steels contain micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AI-ISS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

    Subject merchandise includes cold-rolled steel that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the order if performed in the country of manufacture of the cold-rolled steel.

    All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this order unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this order:

    • Ball bearing steels; 3

    3 Ball bearing steels are defined as steels which contain, in addition to iron, each of the following elements by weight in the amount specified: (i) Not less than 0.95 nor more than 1.13 percent of carbon; (ii) not less than 0.22 nor more than 0.48 percent of manganese; (iii) none, or not more than 0.03 percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor more than 0.37 percent of silicon; (vi) not less than 1.25 nor more than 1.65 percent of chromium; (vii) none, or not more than 0.28 percent of nickel; (viii) none, or not more than 0.38 percent of copper; and (ix) none, or not more than 0.09 percent of molybdenum.

    • Tool steels; 4

    4 Tool steels are defined as steels which contain the following combinations of elements in the quantity by weight respectively indicated: (i) More than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon and 1.25 percent or more but less than 10.5 percent chromium; or (iii) not less than 0.85 percent carbon and 1 percent to 1.8 percent, inclusive, manganese; or (iv) 0.9 percent to 1.2 percent, inclusive, chromium and 0.9 percent to 1.4 percent, inclusive, molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) not less than 0.5 percent carbon and not less than 5.5 percent tungsten.

    • Silico-manganese steel; 5

    5 Silico-manganese steel is defined as steels containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than 1.9 percent of manganese, and (iii) 0.6 percent or more but not more than 2.3 percent of silicon.

    • Grain-oriented electrical steels (“GOES”) as defined in the final determination of the U.S. Department of Commerce in Grain-Oriented Electrical Steel From Germany, Japan, and Poland. 6

    6See Grain-Oriented Electrical Steel from Germany, Japan, and Poland: Final Determinations of Sales at Less Than Fair Value and Certain Final Affirmative Determination of Critical Circumstances, 79 FR 42,501, 42,503 (July 22, 2014) (“Grain-Oriented Electrical Steel from Germany, Japan, and Poland”). This determination defines grain-oriented electrical steel as “a flat-rolled alloy steel product containing by weight at least 0.6 percent but not more than 6 percent of silicon, not more than 0.08 percent of carbon, not more than 1.0 percent of aluminum, and no other element in an amount that would give the steel the characteristics of another alloy steel, in coils or in straight lengths.”

    • Non-Oriented Electrical Steels (“NOES”), as defined in the antidumping orders issued by the U.S. Department of Commerce in Non-Oriented Electrical Steel From the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan. 7

    7See Non-Oriented Electrical Steel from the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan: Antidumping Duty Orders, 79 FR 71,741, 71,741-42 (December 3, 2014) (“Non-Oriented Electrical Steel from the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan”). The orders define NOES as “cold-rolled, flat-rolled, alloy steel products, whether or not in coils, regardless of width, having an actual thickness of 0.20 mm or more, in which the core loss is substantially equal in any direction of magnetization in the plane of the material. The term `substantially equal' means that the cross grain direction of core loss is no more than 1.5 times the straight grain direction (i.e., the rolling direction) of core loss. NOES has a magnetic permeability that does not exceed 1.65 Tesla when tested at a field of 800 A/m (equivalent to 10 Oersteds) along (i.e., parallel to) the rolling direction of the sheet (i.e., B800 value). NOES contains by weight more than 1.00 percent of silicon but less than 3.5 percent of silicon, not more than 0.08 percent of carbon, and not more than 1.5 percent of aluminum. NOES has a surface oxide coating, to which an insulation coating may be applied.”

    Also excluded from the scope of this order is ultra-tempered automotive steel, which is hardened, tempered, surface polished, and meets the following specifications:

    • Thickness: less than or equal to 1.0 mm; • Width: less than or equal to 330 mm; • Chemical composition: Element C Si Mn P S Weight % 0.90-1.05 0.15-0.35 0.30-0.50 Less than or equal to 0.03 Less than or equal to 0.006. • Physical properties: Width less than or equal to 150mm Flatness of less than 0.2% of nominal strip width. Width of 150 to 330mm Flatness of less than 5 mm of nominal strip width. Microstructure: Completely free from decarburization. Carbides are spheroidal and fine within 1% to 4% (area percentage) and are undissolved in the uniform tempered martensite; Surface roughness: Less than or equal to 0.80 µm Rz; Non-metallic inclusion: Sulfide inclusion less than or equal to 0.04% (area percentage); Oxide inclusion less than or equal to 0.05% (area percentage); and • The mill test certificate must demonstrate that the steel is proprietary grade “PK” and specify the following: The exact tensile strength, which must be greater than or equal to 1600 N/mm2; The exact hardness, which must be greater than or equal to 465 Vickers hardness number; The exact elongation, which must be between 2.5% and 9.5%; and Certified as having residual compressive stress within a range of 100 to 400 N/mm2.

    The products subject to this order are currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) under item numbers: 7209.15.0000, 7209.16.0030, 7209.16.0060, 7209.16.0070, 7209.16.0091, 7209.17.0030, 7209.17.0060, 7209.17.0070, 7209.17.0091, 7209.18.1530, 7209.18.1560, 7209.18.2510, 7209.18.2520, 7209.18.2580, 7209.18.6020, 7209.18.6090, 7209.25.0000, 7209.26.0000, 7209.27.0000, 7209.28.0000, 7209.90.0000, 7210.70.3000, 7211.23.1500, 7211.23.2000, 7211.23.3000, 7211.23.4500, 7211.23.6030, 7211.23.6060, 7211.23.6090, 7211.29.2030, 7211.29.2090, 7211.29.4500, 7211.29.6030, 7211.29.6080, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7225.50.6000, 7225.50.8080, 7225.99.0090, 7226.92.5000, 7226.92.7050, and 7226.92.8050. The products subject to the order may also enter under the following HTSUS numbers: 7210.90.9000, 7212.50.0000, 7215.10.0010, 7215.10.0080, 7215.50.0016, 7215.50.0018, 7215.50.0020, 7215.50.0061, 7215.50.0063, 7215.50.0065, 7215.50.0090, 7215.90.5000, 7217.10.1000, 7217.10.2000, 7217.10.3000, 7217.10.7000, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090, 7225.19.0000, 7226.19.1000, 7226.19.9000, 7226.99.0180, 7228.50.5015, 7228.50.5040, 7228.50.5070, 7228.60.8000, and 7229.90.1000.

    The HTSUS subheadings above are provided for convenience and CBP purposes only. The written description of the scope of the order is dispositive.

    Initiation and Preliminary Results of Changed Circumstances Review, and Intent To Revoke Order in Part

    Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (“the Act”), the Department will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party for a review of, a final affirmative determination that resulted in an AD order which shows changed circumstances sufficient to warrant a review. Section 782(h)(2) of the Act and 19 CFR 351.222(g)(1)(i) provide that the Department may revoke an order (in whole or in part) if it determines that producers accounting for substantially all of the production of the domestic like product have no further interest in the order, in whole or in part. In addition, in the event the Department determines that expedited action is warranted, 19 CFR 351.222(c)(3)(ii) permits the Department to combine the notices of initiation and preliminary results.

    At the request of the domestic industry, and in accordance with section 751(b)(1) of the Act and 19 CFR 351.216(b), the Department is initiating a changed circumstances review of certain cold-rolled steel flat products from Japan to determine whether partial revocation of the antidumping duty order is warranted with respect to certain light gage cold-rolled flat-rolled steel for porcelain enameling meeting the requirements of ASTM A424 Type 1. In accordance with section 751(b) of the Act and 19 CFR 351.221(c)(3), we have determined that expedited action is warranted because the record contains information necessary to make a preliminary finding.

    The five domestic producers named above assert that they account for “substantially all” of the cold-rolled steel production in the United States. Because there is no record information that contradicts this claim, in accordance with section 751(b) of the Act and 19 CFR 351.222(g)(1)(i), we find that Petitioners comprise substantially all of the production of the domestic like product.8

    8See Letter from the Domestic Industry, “Certain Cold-Rolled Steel Flat Products from Japan—Changed Circumstances Review and Parital Revocation Request,” dated November 14, 2016 at page 5.

    Petitioners have expressed a lack of interest in the order, in part, with respect to certain light gage cold-rolled flat-rolled steel for porcelain enameling meeting the requirements of ASTM A424 Type 1.9 Because this changed circumstances request was filed less than 24 months after the date of publication of notice of the final determination in an investigation, pursuant to 19 CFR 351.216(c), the Department must determine whether good cause exists. We find that the Petitioners' affirmative statement of no interest in the order with respect to certain light gage cold-rolled flat-rolled steel for porcelain enameling meeting the requirements of ASTM A424 Type 1 constitutes good cause for the conduct of this review. Based on the expression of no interest by Petitioners and in the absence of any objection by any other interested parties, we have preliminarily determined that substantially all 10 of the domestic industry of the like product has no interest in the continued application of the antidumping duty order on certain cold-rolled steel flat products to the merchandise that is subject to this request. Accordingly, we are notifying the public of our intent to revoke, in part, the antidumping duty order as it relates to imports of certain light gage cold-rolled flat-rolled steel for porcelain enameling meeting the requirements of ASTM A424 Type 1. Therefore, we intend to change the scope of the order on cold-rolled steel flat products from Japan to include the following exclusion: 11

    9 Id. at page 4.

    10 In its administrative practice, the Department has interpreted “substantially all” to mean at least 85 percent of the total production of the domestic like product covered by the order. See, e.g., Certain Pasta from Italy: Final Results of Countervailing Duty Changed Circumstances Review and Revocation, In Part, 76 FR 27634, 27635 (May 12, 2011).

    11 For a full description of the scope, see Appendix I.

    Also excluded from the scope of this order is certain cold-rolled flat-rolled steel for porcelain enameling meeting the requirements of ASTM 424 Type 1 and having the following characteristics:

    —continuous annealed cold-reduced steel in coils with a thickness of between 0.30 mm and 0.36 mm, that is in in widths either from 875 mm to 940 mm or from 1,168 to 1,232 mm; —a chemical composition, by weight, of: —not more than 0.004% carbon; —not more than 0.010% aluminum; —0.006%-0.010% nitrogen —0.012%-0.030% boron —0.010%-0.025% oxygen —less than 0.002% of titanium; —less than 0.002% by weight of vanadium; —less than 0.002% by weight of niobium, —less than 0.002% by weight of antimony; —a yield strength of from 179.3 MPa to 344.7 MPa; —a tensile strength of from 303.7 MPa to 413.7 MPa, —a percent of elongation of from 28% to 46% on a standard ASTM sample with a 5.08 mm gauge length; —a product shape of flat after annealing, with flat defined as less than or equal to 1 I unit with no coil set. As set forth, in ASTM A568, Appendix X5 (alternate methods for expressing flatness).12

    12 The Department intends to adopt the exclusionary language included in the proposed amended scope that Petitioners submitted on December 13, 2016. See Letter from the Domestic Industry, “Certain Cold-Rolled Steel Flat Products from Japan—Changed Circumstances Review and Partial Revocation Request—Proposed Amended Scope Language,” dated December 13, 2016 at Attachment.

    Public Comment

    Interested parties are invited to provide comments to comment on these preliminary results. Written comments may be submitted to the Department no later than 14 days after the date of publication of this notice. Rebuttal comments to written comments, limited to issues raised in such comments, may be filed with the Department no later than 10 days after the comments are filed. All submissions must be filed electronically using Enforcement and Compliance's AD and CVD Centralized Electronic Service System (“ACCESS”).13 An electronically filed document must be received successfully in its entirety by ACCESS, by 5 p.m. Eastern Time on the due dates set forth in this notice.

    13See, generally, 19 CFR 351.303.

    In accordance with 19 CFR 351.216(e), the Department intends to issue the final results of this changed circumstance review within 270 days after the date on which this review was initiated, or within 45 days if all parties to the proceeding agree to the outcome of the review.

    If final revocation occurs, we will instruct U.S. Customs and Border Protection to end the suspension of liquidation for the merchandise covered by the revocation on the effective date of the notice of revocation and to release any cash deposit or bond.14 The current requirement for a cash deposit of estimated antidumping duties on all subject merchandise will continue unless and until it is modified pursuant to the final results of this changed circumstances review.

    14See 19 CFR 351.22(g)(4).

    This initiation and preliminary results of review and notice are in accordance with sections 751(b) and 777(i) of the Act and 19 CFR 351.216, 351.221(b)(1) and (4), and 351.222(g).

    Dated: December 27, 2016. Paul Piquado Assistant Secretary for Enforcement and Compliance. Appendix I

    The products covered by this order are certain cold-rolled (cold-reduced), flat-rolled steel products, whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products covered also include products not in coils (e.g., in straight lengths) of a thickness of 4.75 mm or more and a width exceeding 150 mm and measuring at least twice the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

    (1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and

    (2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of this order are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

    • 2.50 percent of manganese, or • 3.30 percent of silicon, or • 1.50 percent of copper, or • 1.50 percent of aluminum, or • 1.25 percent of chromium, or • 0.30 percent of cobalt, or • 0.40 percent of lead, or • 2.00 percent of nickel, or • 0.30 percent of tungsten (also called wolfram), or • 0.80 percent of molybdenum, or • 0.10 percent of niobium (also called columbium), or • 0.30 percent of vanadium, or • 0.30 percent of zirconium

    Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.

    For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (“IF”)) steels, high strength low alloy (“HSLA”) steels, motor lamination steels, Advanced High Strength Steels (“AHSS”), and Ultra High Strength Steels (“UHSS”). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. Motor lamination steels contain micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

    Subject merchandise includes cold-rolled steel that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the order if performed in the country of manufacture of the cold-rolled steel.

    All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this order unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this order:

    • Ball bearing steels; 1

    1 Ball bearing steels are defined as steels which contain, in addition to iron, each of the following elements by weight in the amount specified: (i) not less than 0.95 nor more than 1.13 percent of carbon; (ii) not less than 0.22 nor more than 0.48 percent of manganese; (iii) none, or not more than 0.03 percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor more than 0.37 percent of silicon; (vi) not less than 1.25 nor more than 1.65 percent of chromium; (vii) none, or not more than 0.28 percent of nickel; (viii) none, or not more than 0.38 percent of copper; and (ix) none, or not more than 0.09 percent of molybdenum.

    • Tool steels; 2

    2 Tool steels are defined as steels which contain the following combinations of elements in the quantity by weight respectively indicated: (i) More than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon and 1.25 percent or more but less than 10.5 percent chromium; or (iii) not less than 0.85 percent carbon and 1 percent to 1.8 percent, inclusive, manganese; or (iv) 0.9 percent to 1.2 percent, inclusive, chromium and 0.9 percent to 1.4 percent, inclusive, molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) not less than 0.5 percent carbon and not less than 5.5 percent tungsten.

    • Silico-manganese steel; 3

    3 Silico-manganese steel is defined as steels containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than 1.9 percent of manganese, and (iii) 0.6 percent or more but not more than 2.3 percent of silicon.

    • Grain-oriented electrical steel (“GOES”) as defined in the final determination of the U.S. Department of Commerce in Grain-Oriented Electrical Steel from Germany, Japan, and Poland.4

    4See Grain-Oriented Electrical Steel from Germany, Japan, and Poland: Final Determinations of Sales at Less Than Fair Value and Certain Final Affirmative Determination of Critical Circumstances, 79 FR 42,501, 42,503 (Dep't Commerce July 22, 2014) (“Grain-Oriented Electrical Steel from Germany, Japan, and Poland”). This determination defines grain-oriented electrical steel as “a flat-rolled alloy steel product containing by weight at least 0.6 percent but not more than 6 percent of silicon, not more than 0.08 percent of carbon, not more than 1.0 percent of aluminum, and no other element in an amount that would give the steel the characteristics of another alloy steel, in coils or in straight lengths.”

    • Non-Oriented Electrical Steels (“NOES”), as defined in the antidumping orders issued by the U.S. Department of Commerce in Non-Oriented Electrical Steel from the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan. 5

    5See Non-Oriented Electrical Steel from the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan: Antidumping Duty Orders, 79 FR 71,741, 71,741-42 (Dep't Commerce Dec. 3, 2014) (“Non-Oriented Electrical Steel from the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan”). The orders define NOES as “cold-rolled, flat-rolled, alloy steel products, whether or not in coils, regardless of width, having an actual thickness of 0.20 mm or more, in which the core loss is substantially equal in any direction of magnetization in the plane of the material. The term `substantially equal' means that the cross grain direction of core loss is no more than 1.5 times the straight grain direction (i.e., the rolling direction) of core loss. NOES has a magnetic permeability that does not exceed 1.65 Tesla when tested at a field of 800 A/m (equivalent to 10 Oersteds) along (i.e., parallel to) the rolling direction of the sheet (i.e., B800 value). NOES contains by weight more than 1.00 percent of silicon but less than 3.5 percent of silicon, not more than 0.08 percent of carbon, and not more than 1.5 percent of aluminum. NOES has a surface oxide coating, to which an insulation coating may be applied.”

    Also excluded from the scope of this order is ultra-tempered automotive steel, which is hardened, tempered, surface polished, and meets the following specifications:

    Thickness: less than or equal to 1.0 mm; Width: less than or equal to 330 mm; Chemical composition: Element C Si Mn P S Weight % 0.90-1.05 0.15-0.35 0.30-0.50 Less than or equal to 0.03 Less than or equal to 0.006. Physical properties: Width less than or equal to 150mm Flatness of less than 0.2% of nominal strip width. Width of 150 to 330mm Flatness of less than 5 mm of nominal strip width. Microstructure: Completely free from decarburization. Carbides are spheroidal and fine within 1% to 4% (area percentage) and are undissolved in the uniform tempered martensite; Surface roughness: less than or equal to 0.80 to µm Rz; Non-metallic inclusion: Sulfide inclusion less than or equal to 0.04% (area percentage) Oxide inclusion less than or equal to 0.05% (area percentage); and • The mill test certificate must demonstrate that the steel is proprietary grade “PK” and specify the following: The exact tensile strength, which must be greater than or equal to 1600 N/mm2; • The exact hardness, which must be greater than or equal to 465 Vickers hardness number; • The exact elongation, which must be between 2.5% and 9.5%; and • Certified as having residual compressive stress within a range of 100 to 400 N/mm2.

    Also excluded from the scope of this order is certain cold-rolled flat-rolled steel for porcelain enameling meeting the requirements of ASTM A424 Type 1 and having each of the following characteristics:

    • Continuous annealed cold-reduced steel in coils with a thickness of between 0.30 mm and 0.36 mm that is in widths either from 875 mm to 940 mm or from 1,168 to 1,232 mm; • a chemical composition, by weight, of: not more than 0.004% carbon; not more than 0.010% aluminum; 0.006%-0.010% nitrogen 0.012%-0.030% boron 0.010%-0.025% oxygen less than 0.002% of titanium; less than 0.002% by weight of vanadium; less than 0.002% by weight of niobium, less than 0.002% by weight of antimony; • a yield strength of from 179.3 MPa to 344.7 MPa; • a tensile strength of from 303.7 MPa to 413.7 MPa; • a percent of elongation of from 28% to 46% on a standard ASTM sample with a 5.08 mm gauge length; • a product shape of flat after annealing, with flat defined as less than or equal to 1 I unit with no coil set as set forth in ASTM A568, Appendix X5 (alternate methods for expressing flatness).

    The products subject to this order are currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) under item numbers: 7209.15.0000, 7209.16.0030, 7209.16.0060, 7209.16.0070, 7209.16.0091, 7209.17.0030, 7209.17.0060, 7209.17.0070, 7209.17.0091, 7209.18.1530, 7209.18.1560, 7209.18.2510, 7209.18.2520, 7209.18.2580, 7209.18.6020, 7209.18.6090, 7209.25.0000, 7209.26.0000, 7209.27.0000, 7209.28.0000, 7209.90.0000, 7210.70.3000, 7211.23.1500, 7211.23.2000, 7211.23.3000, 7211.23.4500, 7211.23.6030, 7211.23.6060, 7211.23.6090, 7211.29.2030, 7211.29.2090, 7211.29.4500, 7211.29.6030, 7211.29.6080, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7225.50.6000, 7225.50.8080, 7225.99.0090, 7226.92.5000, 7226.92.7050, and 7226.92.8050. The products subject to the order may also enter under the following HTSUS numbers: 7210.90.9000, 7212.50.0000, 7215.10.0010, 7215.10.0080, 7215.50.0016, 7215.50.0018, 7215.50.0020, 7215.50.0061, 7215.50.0063, 7215.50.0065, 7215.50.0090, 7215.90.5000, 7217.10.1000, 7217.10.2000, 7217.10.3000, 7217.10.7000, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090, 7225.19.0000, 7226.19.1000, 7226.19.9000, 7226.99.0180, 7228.50.5015, 7228.50.5040, 7228.50.5070, 7228.60.8000, and 7229.90.1000. The HTSUS subheadings above are provided for convenience and CBP purposes only. The written description of the scope of the order is dispositive.

    [FR Doc. 2016-31890 Filed 1-3-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF094 Fisheries of the Northeastern United States; Northeast Skate Complex Fishery; Notice of Intent To Prepare an Environmental Impact Statement; Scoping Process; Request for Comments AGENCY:

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

    ACTION:

    Notice of intent to prepare a draft environmental impact statement and initiate scoping process; request for comments.

    SUMMARY:

    The New England Fishery Management Council announces its intent to prepare, in cooperation with NMFS, a draft environmental impact statement consistent with the National Environmental Policy Act. A draft environmental impact statement may be necessary to provide analytic support for Amendment 5 to the Northeast Skate Complex Fishery Management Plan. This notice alerts the interested public of the scoping process for a potential draft environmental impact statement and outlines opportunity for public participation in that process.

    DATES:

    Written and electronic scoping comments must be received on or before March 6, 2017.

    ADDRESSES:

    Written scoping comments on Amendment 5 may be sent by any of the following methods:

    Email to the following address: [email protected];

    Mail to Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950; or

    Fax to (978) 465-3116.

    Requests for copies of the Amendment 5 scoping document and other information should be directed to Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950, telephone (978) 465-0492.

    The scoping document is accessible electronically via the Internet at http://www.nefmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council, (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    Background

    The New England Fishery Management Council, working through its public participatory committee and meeting processes, anticipates the development of an amendment that may require an environmental impact statement (EIS) to meet applicable criteria in the Council on Environmental Quality regulations and guidance for implementing the National Environmental Policy Act (NEPA). Amendment 5 will consider limited access to the skate (bait and non-bait) fishery.

    The Northeast Skate Complex is comprised of seven species (barndoor, clearnose, little, rosette, smooth, thorny, and winter skate), managed as a single unit along the east coast from Maine to Cape Hatteras, NC. The skate bait fishery primarily targets little skate, with a small component of winter skate catch. The non-bait fishery, including the wing fishery, primarily targets winter skate.

    Following the first skate stock assessment in 1999, the Northeast Skate Complex Fishery Management Plan was adopted in 2003. Amendment 3 established an annual catch limit and annual catch target for the skate complex, total allowable landings for the skate bait and non-bait fisheries, seasonal quotas for the bait fishery, new possession limits, and in-season possession limit triggers.

    The skate fishery is an open access fishery—any vessel may join or leave the fishery at any time. Skate fishermen are concerned that increasingly strict regulations in other fisheries—particularly in the Northeast Multispecies (groundfish) fishery where several stocks are overfished and subject to strict catch restrictions—might cause these fishermen to switch their fishing effort onto skates. An increase in effort in the skate fishery could cause the fishery to harvest its catch limit in a shorter time period, trigger reduced skate trip limits, or have other negative economic impacts on current participants since developing skate markets could be negatively impacted by a flood of product.

    A control date for the bait fishery was established on July 30, 2009 (74 FR 37977). A control date for the non-bait fishery was established on March 31, 2014 (79 FR 18002). The control dates may be used as a reference date for future management measures related to such rulemaking.

    The Council has initiated the development of this amendment to address three issues:

    • Limited access qualification criteria that would determine whether vessels may target skate. These criteria may differ by stock or management area and may treat older history differently than newer history;

    • Limited access permit conditions (transfers, ownership caps, `history' permits, etc.); and

    • Permit categories and associated measures.

    The amendment's objective would be to establish qualification criteria for skate (bait and non-bait “wing”) fishing permits and possibly different qualification criteria or catch limits for each fishery, considering how they operate differently. For example, in the wing fishery, it may be desirable to have different permit tiers that distinguish between skate vessels that currently target skate, historically targeted, and/or vessels that catch and land small quantities. Qualification criteria might include several factors such as, but not limited to, the time period vessels have participated in the fishery (possibly using the control dates established for this fishery), historic levels of landings, and dependency on the fishery.

    The Council may consider limiting access to the skate (bait and non-bait) fishery in a manner that may affect individual permit holder access to skates depending on the qualification criteria and other permit conditions developed. Based on individual fishing history, a vessel that has targeted skate may be distinguished differently from a vessel that caught and landed skates while fishing for other species. Landing limits for qualifiers and non-qualifiers could therefore be more consistent with the type of fishing that these vessels conduct in order to minimize discarding and economic effects. For example, the bait skate fishery currently requires a letter of authorization, but has substantially larger landing limits than the wing fishery. Some historic participants in the Northeast Skate Complex fisheries also may desire limited access privileges (a catch share program, for example).

    Following the scoping period, the Council and its Skate Committee will identify the specific goals and objectives of the amendment and develop alternatives to meet the purpose and need of the action. With input from its committees and the public, the Council would select a range of alternatives to implement limited access in the skate fishery.

    Public Comment

    All persons affected by or otherwise interested in Northeast skate management are invited to comment on the scope and significance of issues to be analyzed by submitting written comments (see ADDRESSES) or by attending one of the six scoping meetings for this amendment. Scoping consists of identifying the range of actions, alternatives, and impacts to be considered. At this time in the process, the Council believes that the alternatives considered in Amendment 5 should include limited access to the skate fishery. After the scoping process is completed, the Council will begin development of Amendment 5 and, if necessary, will prepare a draft EIS to analyze the impacts of the range of alternatives under consideration. Impacts may be direct, individual, or cumulative.

    The Council will hold public hearings to receive comments on the draft amendment and on the analysis of its impacts presented in the draft EIS. In addition to soliciting comment on this notice, the public will have the opportunity to comment on the measures and alternatives being considered by the Council through public meetings and public comment periods consistent with NEPA, the Magnuson-Stevens Fishery Conservation and Management Act, and the Administrative Procedure Act. Any amendment developed and approved by the Council would have to be approved and implemented by NMFS.

    The Council will take and discuss scoping comments on this amendment at the public meetings listed in Table 1.

    Table 1—Amendment 5 Public Scoping Meeting Information Meeting date and time Meeting location Portsmouth, NH, Tuesday, January 24, 2017, 5:00 p.m. (or immediately following the Council Meeting) Sheraton Harborside Hotel, 250 Market Street, Portsmouth, NH 03801 04101, Telephone: (603) 431-2300. Via Webinar, Tuesday, January 31, 2017, 6:00-8:00 p.m Webinar Hearing, Register to participate: https://global.gotomeeting.com/join/194149773, Call in info: Toll: +1 (646) 749-3122, Access Code: 194-149-773. Buzzards Bay, MA, Tuesday, February 7, 2017, 6:00 p.m.-8:00 p.m Mass Maritime, 101 Academy Drive, Buzzards Bay, MA 02532, Telephone: (508) 830-5000. Narragnasett, RI, Thursday, February 9, 2017, 6:00 p.m.-8:00 p.m Graduate School of Oceanography, Coastal Institute Building—Hazard Room, 215 S Ferry Rd, Narragansett, RI 02882, Telephone: (401) 874-6222. Montauk, NY, Wednesday, February 15, 2017, 6:00 p.m.-8:00 p.m Montauk Playhouse Community Center Foundation, Inc., 240 Edgemere St., Montauk, New York 11954, Telephone: (631) 668-1124. Cape May, NJ, Thursday, February 16, 2017, 6:00 p.m.-8:00 p.m Grand Hotel of Cape May, 1045 Beach Avenue, Cape May, NJ 08204, Telephone: (609) 884-5611.

    A scoping document with additional background information is available on the Council's Web site at http://www.nefmc.org/management-plans/skates or may be obtained by contacting the Council. Additional information on the scoping meetings can be accessed online at http://www.nefmc.org/.

    Special Accommodations

    The meetings are accessible to people with physical disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies (see ADDRESSES) at least five days prior to each meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 29, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-31864 Filed 1-3-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF DEFENSE Office of the Secretary Government-Industry Advisory Panel; Notice of Federal Advisory Committee Meeting AGENCY:

    Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics), Department of Defense (DoD).

    ACTION:

    Federal advisory committee meeting notice.

    SUMMARY:

    The Department of Defense is publishing this notice to announce the following Federal advisory committee meeting of the Government-Industry Advisory Panel. This meeting is open to the public.

    DATES:

    The meeting will be held from 9:00 a.m. to 5:00 p.m. on Wednesday and Thursday, January 18-19, 2017. Public registration will begin at 8:45 a.m. on each day. For entrance into the meeting, you must meet the necessary requirements for entrance into the Pentagon. For more detailed information, please see the following link: http://www.pfpa.mil/access.html.

    ADDRESSES:

    Pentagon Library, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155. The meeting will be held in Room M2. The Pentagon Library is located in the Pentagon Library and Conference Center (PLC2) across the Corridor 8 bridge.

    FOR FURTHER INFORMATION CONTACT:

    LTC Andrew Lunoff, Office of the Assistant Secretary of Defense (Acquisition), 3090 Defense Pentagon, Washington, DC 20301-3090, email: [email protected], phone: 571-256-9004.

    SUPPLEMENTARY INFORMATION:

    Purpose of the Meeting: This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (FACA) (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150. The Government-Industry Advisory Panel will review sections 2320 and 2321 of title 10, United States Code (U.S.C.), regarding rights in technical data and the validation of proprietary data restrictions and the regulations implementing such sections, for the purpose of ensuring that such statutory and regulatory requirements are best structured to serve the interest of the taxpayers and the national defense. The scope of the panel is as follows: (1) Ensuring that the Department of Defense (DoD) does not pay more than once for the same work, (2) Ensuring that the DoD contractors are appropriately rewarded for their innovation and invention, (3) Providing for cost-effective reprocurement, sustainment, modification, and upgrades to the DoD systems, (4) Encouraging the private sector to invest in new products, technologies, and processes relevant to the missions of the DoD, and (5) Ensuring that the DoD has appropriate access to innovative products, technologies, and processes developed by the private sector for commercial use.

    Agenda: This will be the twelfth meeting of the Government-Industry Advisory Panel with additional meetings possible for February and March. The panel will cover details of 10 U.S.C. 2320 and 2321, begin understanding the implementing regulations and detail the necessary groups within the private sector and government to provide supporting documentation for their review of these codes and regulations during follow-on meetings. Agenda items for this meeting will include the following: (1) Final review of tension point information papers; (2) Rewrite FY17 NDAA 2320 and 2321 language; (3) Discuss final report frame work and future collaboration; (4) Comment Adjudication & Planning for follow-on meeting.

    Availability of Materials for the Meeting: A copy of the agenda or any updates to the agenda for the January 18-19 meeting will be available as requested or at the following site: https://database.faca.gov/committee/meetings.aspx?cid=2561. It will also be distributed upon request.

    Minor changes to the agenda will be announced at the meeting. All materials will be posted to the FACA database after the meeting.

    Public Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165, and subject to the availability of space, this meeting is open to the public. Registration of members of the public who wish to attend the meeting will begin upon publication of this meeting notice and end three business days (January 13) prior to the start of the meeting. All members of the public must contact LTC Lunoff at the phone number or email listed in the FOR FURTHER INFORMATION CONTACT section to make arrangements for Pentagon escort, if necessary. Public attendees should arrive at the Pentagon's Visitor's Center, located near the Pentagon Metro Station's south exit and adjacent to the Pentagon Transit Center bus terminal with sufficient time to complete security screening no later than 8:30 a.m. on January 18-19. To complete security screening, please come prepared to present two forms of identification of which one must be a pictured identification card. Government and military DoD CAC holders are not required to have an escort, but are still required to pass through the Visitor's Center to gain access to the Building. Seating is limited and is on a first-to-arrive basis. Attendees will be asked to provide their name, title, affiliation, and contact information to include email address and daytime telephone number to the Designated Federal Officer (DFO) listed in the FOR FURTHER INFORMATION CONTACT section. Any interested person may attend the meeting, file written comments or statements with the committee, or make verbal comments from the floor during the public meeting, at the times, and in the manner, permitted by the committee.

    Special Accommodations: The meeting venue is fully handicap accessible, with wheelchair access.

    Individuals requiring special accommodations to access the public meeting or seeking additional information about public access procedures, should contact LTC Lunoff, the committee DFO, at the email address or telephone number listed in the FOR FURTHER INFORMATION CONTACT section, at least five (5) business days prior to the meeting so that appropriate arrangements can be made.

    Written Comments or Statements: Pursuant to 41 CFR 102-3.105(j) and 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act, the public or interested organizations may submit written comments or statements to the Government-Industry Advisory Panel about its mission and/or the topics to be addressed in this public meeting. Written comments or statements should be submitted to LTC Lunoff, the committee DFO, via electronic mail, the preferred mode of submission, at the email address listed in the FOR FURTHER INFORMATION CONTACT section in the following formats: Adobe Acrobat or Microsoft Word. The comment or statement must include the author's name, title, affiliation, address, and daytime telephone number. Written comments or statements being submitted in response to the agenda set forth in this notice must be received by the committee DFO at least five (5) business days prior to the meeting so that they may be made available to the Government-Industry Advisory Panel for its consideration prior to the meeting. Written comments or statements received after this date may not be provided to the panel until its next meeting. Please note that because the panel operates under the provisions of the Federal Advisory Committee Act, as amended, all written comments will be treated as public documents and will be made available for public inspection.

    Verbal Comments: Members of the public will be permitted to make verbal comments during the meeting only at the time and in the manner allowed herein. If a member of the public is interested in making a verbal comment at the open meeting, that individual must submit a request, with a brief statement of the subject matter to be addressed by the comment, at least three (3) business days in advance to the committee DFO, via electronic mail, the preferred mode of submission, at the email address listed in the FOR FURTHER INFORMATION CONTACT section. The committee DFO will log each request to make a comment, in the order received, and determine whether the subject matter of each comment is relevant to the panel's mission and/or the topics to be addressed in this public meeting. A 30-minute period near the end of the meeting will be available for verbal public comments. Members of the public who have requested to make a verbal comment and whose comments have been deemed relevant under the process described in this paragraph, will be allotted no more than five (5) minutes during this period, and will be invited to speak in the order in which their requests were received by the DFO.

    Dated: December 29, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-31905 Filed 1-3-17; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION Federal Perkins Loan, Federal Work-Study, and Federal Supplemental Educational Opportunity Grant Programs; 2017-2018 Award Year Deadline Dates AGENCY:

    Federal Student Aid, Department of Education.

    ACTION:

    Notice.

    Catalog of Federal Domestic Assistance (CFDA) Numbers: 84.038, 84.033, and 84.007. SUMMARY:

    The Secretary announces the 2017-2018 award year deadline dates for the submission of requests and documents from postsecondary institutions for the Federal Perkins Loan, Federal Work-Study (FWS), and Federal Supplemental Educational Opportunity Grant (FSEOG) programs (collectively, the “campus-based programs”).

    SUPPLEMENTARY INFORMATION:

    The Federal Perkins Loan program encourages institutions to make low-interest, long-term loans to needy undergraduate and graduate students to help pay for their education.

    The FWS program encourages the part-time employment of needy undergraduate and graduate students to help pay for their education and to involve them in community service activities.

    The FSEOG program encourages institutions to provide grants to exceptionally needy undergraduate students to help pay for their education.

    The Federal Perkins Loan, FWS, and FSEOG programs are authorized by parts E and C, and part A, subpart 3, respectively, of title IV of the Higher Education Act of 1965, as amended.

    Throughout the year, in its “Electronic Announcements,” the Department will continue to provide additional information for the individual deadline dates listed in the table under the Deadline Dates section of this notice. You will also find the information on the Information for Financial Aid Professionals (IFAP) Web site at www.ifap.ed.gov.

    Deadline Dates: The following table provides the 2017-2018 award year deadline dates for the submission of applications, reports, waiver requests, and other documents for the campus-based programs. Institutions must meet the established deadline dates to ensure consideration for funding or waiver, as appropriate.

    2017-2018 Award Year Deadline Dates What does an institution submit? How is it submitted? What is the deadline for submission? 1. The Campus-Based Reallocation Form designated for the return of 2016-2017 funds and the request for supplemental FWS funds for the 2017-2018 award year The Reallocation Form is located on the “Setup” tab of the Fiscal Operations Report and Application to Participate (FISAP) at the eCampus-Based Web site: https://cbfisap.ed.gov.
  • The Reallocation Form must be submitted electronically through the eCampus-Based Web site
  • August 14, 2017.
    2. The 2018-2019 FISAP (reporting 2016-2017 expenditure data and requesting funds for 2018-2019) The FISAP is located at the eCampus-Based Web site: https://cbfisap.ed.gov
  • The FISAP must be submitted electronically through the eCampus-Based Web site. The FISAP's signature page must be signed by the institution's Chief Executive Officer (CEO), either electronically or on a printed copy with an original signature. If the FISAP signature page is mailed, it must be sent to: FISAP Administrator, 8405 Greensboro Drive, Suite 1020, McLean, VA 22102.
  • September 29, 2017.
    3. The Work Colleges Program Report of 2016-2017 award year expenditures The Work Colleges Program Report is located on the “Setup” tab of the FISAP at the eCampus-Based Web site: https://cbfisap.ed.gov
  • The report must be submitted electronically through the eCampus-Based Web site. It must be signed by the institution's CEO, either electronically or on a printed copy with an original signature. If the Work Colleges Program Report signature page is mailed, it must be submitted by one of the following methods:
  • September 29, 2017.
    Hand deliver to: U.S. Department of Education, Federal Student Aid, Grants & Campus-Based Division, ATTN: Work Colleges Coordinator, 830 First Street NE., Room 64F2, Washington, DC 20002; or Mail to: The address listed above for hand delivery. However, please use ZIP Code 20202-5453 4. The 2016-2017 Financial Assistance for Students with Intellectual Disabilities Expenditure Report The Financial Assistance for Students with Intellectual Disabilities Expenditure Report is located on the “Setup” tab of the FISAP at the eCampus-Based Web site: https://cbfisap.ed.gov
  • The report must be submitted electronically through the eCampus-Based Web site. It must be signed by the institution's CEO, either electronically or on a printed copy with an original signature. If the Financial Assistance for Students with Intellectual Disabilities Expenditure Report signature page is mailed, it must be submitted by one of the following methods:
  • September 29, 2017.
    Hand deliver to: U.S. Department of Education, Federal Student Aid, Grants & Campus-Based Division, ATTN: Comprehensive Transition and Postsecondary Program, 830 First Street NE., Room 64F2, Washington, DC 20002; or Mail to: The address listed above for hand delivery. However, please use ZIP Code 20202-5453 5. The 2018-2019 FISAP Edit Corrections and Perkins Cash on Hand Update as of October 31, 2017 The FISAP is located at the eCampus-Based Web site: https://cbfisap.ed.gov
  • The FISAP Edit Corrections and Perkins Cash on Hand Update must be submitted electronically through the eCampus-Based Web site.
  • December 15, 2017.
    6. Request for a waiver of the 2018-2019 award year penalty for the underuse of 2016-2017 award year funds The request for a waiver is located in part II, section C of the FISAP at the eCampus-Based Web site: https://cbfisap.ed.gov
  • The request and justification must be submitted electronically through the eCampus-Based Web site
  • February 5, 2018.
    7. The Institutional Application and Agreement for Participation in the Work Colleges Program for the 2018-2019 award year The Institutional Application and Agreement for Participation in the Work Colleges Program can be found on the “Setup” tab of the FISAP at the eCampus-Based Web site: https://cbfisap.ed.gov
  • The application and agreement must be submitted electronically through the eCampus-Based Web site. It must be signed by the institution's CEO, either electronically or on a printed copy with an original signature. If the Institutional Application and Agreement for Participation in the Work Colleges Program signature page is mailed, it must be submitted by one of the following methods:
  • March 5, 2018.
    Hand deliver to: U.S. Department of Education, Federal Student Aid, Grants & Campus-Based Division, ATTN: Work Colleges Coordinator, 830 First Street NE., Room 64F2, Washington, DC 20002; or Mail to: The address listed above for hand delivery. However, please use ZIP Code 20202-5453 8. Request for a waiver of the FWS Community Service Expenditure Requirement for the 2018-2019 award year The FWS Community Service waiver request is located on the “Setup” tab of the FISAP at the eCampus-Based Web site: https://cbfisap.ed.gov
  • The request and justification must be submitted electronically through the eCampus-Based Web site
  • April 23, 2018.
    Notes: The deadline for an electronic submission is 11:59:00 p.m. (Washington, DC time) on the applicable deadline date. A transmission must be completed and accepted by 11:59:00 p.m. to meet the deadline. A paper document that is sent through the U.S. Postal Service must be postmarked, or you must have a mail receipt stamped by the applicable deadline date. A paper document that is delivered by a commercial courier must be received no later than 4:30:00 p.m. (Washington, DC time) on the applicable deadline date. The Secretary may consider on a case-by-case basis the effect that a major disaster, as defined in section 102(2) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(2)), or another unusual circumstance has on an institution in meeting a deadline.
    Proof of Mailing or Hand Delivery of Paper Documents

    If you submit a paper document, if permitted, by mail or by hand delivery (or from a commercial courier), we accept as proof one of the following:

    (1) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.

    (2) A legibly dated U.S. Postal Service postmark.

    (3) A dated shipping label, invoice, or receipt from a commercial courier.

    (4) Any other proof of mailing or delivery acceptable to the Secretary.

    If you mail a paper document through the U.S. Postal Service, we do not accept either of the following as proof of mailing:

    (1) A private metered postmark.

    (2) A mail receipt that is not dated by the U.S. Postal Service.

    Note:

    The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.

    All institutions are encouraged to use certified or at least first-class mail.

    The Department accepts hand deliveries from you or a commercial courier between 8:00:00 a.m. and 4:30:00 p.m., Washington, DC time, Monday through Friday except Federal holidays.

    Sources for Detailed Information on These Requests

    A more detailed discussion of each request for funds or waiver is provided in specific “Electronic Announcements” posted on the Department's IFAP Web site (http://ifap.ed.gov) at least 30 days before the established deadline date for the specific request. Information on these items is also found in the Federal Student Aid Handbook, posted on the Department's IFAP Web site.

    Applicable Regulations: The following regulations apply to these programs:

    (1) Student Assistance General Provisions, 34 CFR part 668.

    (2) General Provisions for the Federal Perkins Loan Program, Federal Work-Study Program, and Federal Supplemental Educational Opportunity Grant Program, 34 CFR part 673.

    (3) Federal Perkins Loan Program, 34 CFR part 674.

    (4) Federal Work-Study Program, 34 CFR part 675.

    (5) Federal Supplemental Educational Opportunity Grant Program, 34 CFR part 676.

    (6) Institutional Eligibility under the Higher Education Act of 1965, as amended, 34 CFR part 600.

    (7) New Restrictions on Lobbying, 34 CFR part 82.

    (8) Governmentwide Requirements for Drug-Free Workplace (Financial Assistance), 34 CFR part 84.

    (9) Governmentwide Debarment and Suspension (Nonprocurement), 2 CFR part 3485.

    (10) Drug and Alcohol Abuse Prevention, 34 CFR part 86.

    FOR FURTHER INFORMATION CONTACT:

    Pat Stephenson, U.S. Department of Education, Federal Student Aid, 830 First Street NE., Union Center Plaza, Room 64F2, Washington, DC 20202-5453. Telephone: (202) 377-3782 or via email: [email protected]

    If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1-800-877-8339.

    Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at this site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Program Authority:

    20 U.S.C. 1070b et seq. and 1087aa et seq.; 42 U.S.C. 2751 et seq.

    Dated: December 29, 2016. James W. Runcie, Chief Operating Officer, Federal Student Aid.
    [FR Doc. 2016-31907 Filed 1-3-17; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY [OE Docket No. EA-434] Application To Export Electric Energy; Southwest Power Pool, Inc. AGENCY:

    Office of Electricity Delivery and Energy Reliability, DOE.

    ACTION:

    Notice of application.

    SUMMARY:

    Southwest Power Pool, Inc. (SPP or Applicant) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.

    DATES:

    Comments, protests, or motions to intervene must be submitted on or before February 3, 2017.

    ADDRESSES:

    Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to [email protected], or by facsimile to 202-586-8008.

    SUPPLEMENTARY INFORMATION:

    Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).

    On November 14, 2016, DOE received an application from SPP for authority to transmit electric energy from the United States to Canada on an emergency basis for five years using existing international transmission facilities owned by Basin Electric Power Cooperative. SPP is a FERC approved Regional Transmission Organization (RTO).

    In its application, SPP states that Basin Electric, a utility currently holding an Export Authorization issued by the Department in EA-64, became a full transmission-owning member of SPP on October 1, 2015. Upon the October 1, 2015 integration of Basin Electric into SPP, SPP began administering transmission service over and assumed functional control of Basin Electric's transmission system, while Basin Electric retains actual ownership and operational control of its transmission facilities. Through Basin Electric's membership in SPP, electricity transmission transactions along Basin Electric's transmission facilities are now governed by SPP's Tariff. The electric energy that SPP proposes to export to Canada would be surplus energy in excess of SPP's load requirements. The existing international transmission facilities to be utilized by SPP have previously been authorized by Presidential permit PP-64 issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.

    Procedural Matters: Any person desiring to be heard in this proceeding should file a comment or protest to the application at the address provided above. Protests should be filed in accordance with Rule 211 of the Federal Energy Regulatory Commission's (FERC) Rules of Practice and Procedures (18 CFR 385.211). Any person desiring to become a party to these proceedings should file a motion to intervene at the above address in accordance with FERC Rule 214 (18 CFR 385.214). Five copies of such comments, protests, or motions to intervene should be sent to the address provided above on or before the date listed above.

    Comments and other filings concerning SPP's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-434. An additional copy is to be provided directly to Matthew Harward, Attorney, Southwest Power Pool, Inc., 201 Worthen Drive, Little Rock, AR 72223 and Matthew J. Binette, Victoria M. Lauterbach, and Brett K. White, Wright & Talisman, P.C., 1200 G Street NW., Suite 600, Washington, DC 20005.

    A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.

    Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at http://energy.gov/node/11845, or by emailing Angela Troy at [email protected].

    Issued in Washington, DC, on December 28, 2016. Christopher Lawrence, Electricity Policy Analyst, Office of Electricity Delivery and Energy Reliability.
    [FR Doc. 2016-31884 Filed 1-3-17; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL17-25-000] Dayton Power and Light Company AES Ohio Generation, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On December 21, 2016, the Commission issued an order in Docket No. EL17-25-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether the Revised Reactive Rate Schedule of Dayton Power and Light Company may be unjust and unreasonable. Dayton Power and Light Company, et al., 157 FERC ¶ 61,231 (2016).

    The refund effective date in Docket No. EL17-25-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL17-25-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: December 27, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-31842 Filed 1-3-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RC11-6-005] North American Electric Reliability Corporation; Notice of Filing

    Take notice that on November 14, 2016, the North American Electric Reliability Corporation submitted an annual report on Find, Fix, Track and Report and Compliance Exception programs, in accordance with the Federal Energy Regulatory Commission's (Commission) Orders.1

    1North American Electric Reliability Corp, 143 FERC ¶ 61,253 (2013), North American Electric Reliability Corp, 148 FERC ¶ 61,214 (2014), and North American Electric Reliability Corp, Docket No. RC11-6-004, (Nov. 13, 2015) (delegated letter order).

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern Time on January 11, 2017.

    Dated: December 28, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31882 Filed 1-3-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER17-652-000] Lightstone Marketing LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding of Lightstone Marketing LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 17, 2017.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 27, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-31843 Filed 1-3-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC16-93-001; EC16-94-001.

    Applicants: Atlas Power Finance, LLC, Dynegy Inc., Energy Capital Partners III, LLC, GDF Suez Energy North America, Inc.

    Description: Compliance Filing of Atlas Power Finance, LLC, et al.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5158.

    Comments Due: 5 p.m. ET 1/10/17.

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG17-36-000.

    Applicants: Innovative Solar 42, LLC.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status of Innovative Solar 42, LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5229.

    Comments Due: 5 p.m. ET 1/13/17.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-1836-009; ER10-1841-009; ER10-1843-009; ER10-1844-009; ER10-1845-009; ER10-1897-009 ER10-1905-009; ER10-1918-009; ER10-1925-009; ER10-1927-009; ER10-1950-009; ER10-1964-009 ER10-1965-009; ER10-1970-009; ER10-1971-033; ER10-1972-009; ER10-1983-009; ER10-1984-009 ER10-1991-009; ER10-2005-009; ER10-2006-010; ER10-2078-010; ER11-26-009; ER11-4462-024 ER12-1660-009; ER12-631-011; ER13-2458-004; ER13-2461-004.

    Applicants: Ashtabula Wind, LLC, Ashtabula Wind II, LLC, Ashtabula Wind III, LLC, Butler Ridge Wind Energy Center, LLC, Crystal Lake Wind, LLC, Crystal Lake Wind II, LLC, Crystal Lake Wind III, LLC, FPL Energy Hancock County Wind, LLC, FPL Energy Mower County, LLC, FPL Energy North Dakota Wind II, LLC, FPL Energy Oliver Wind I, LLC, FPL Energy Oliver Wind II, LLC, Garden Wind, LLC, Hawkeye Power Partners, LLC, Lake Benton Power Partners II, LLC, Langdon Wind, LLC, NEPM II, LLC, NextEra Energy Duane Arnold, LLC, NextEra Energy Point Beach, LLC, NextEra Energy Power Marketing, LLC, Osceola Windpower, LLC, Osceola Windpower II, LLC, Pheasant Run Wind, LLC, Story Wind, LLC, Tuscola Bay Wind, LLC, Tuscola Wind II, LLC, White Oak Energy LLC, Windpower Partners 1993, LLC.

    Description: Notification of Non-material Change in Status of the NextEra Resource Entities.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5303.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER12-569-014; ER10-1849-013; ER10-1887-013 ER10-1920-015; ER10-1928-015; ER10-1952-013; ER10-1961-013; ER10-1971-032; ER10-2720-015 ER11-2037-013; ER11-4428-015; ER11-4462-023; ER12-1228-015; ER12-1880-014; ER12-2227-013; ER12-895-013; ER13-2474-009; ER13-712-015; ER14-2707-010; ER14-2708-011; ER14-2709-010; ER14-2710-010; ER15-1925-007; ER15-2676-006; ER15-30-008; ER15-58-008; ER16-1440-004; ER16-1672-004; ER16-2190-002; ER16-2453-003.

    Applicants: Blackwell Wind, LLC, Brady Interconnection, LLC, Brady Wind, LLC, Breckinridge Wind Project, LLC, Cedar Bluff Wind, LLC, Chaves County Solar, LLC, Cimarron Wind Energy, LLC, Elk City Wind, LLC, Elk City II Wind, LLC, Ensign Wind, LLC, FPL Energy Cowboy Wind, LLC, FPL Energy Oklahoma Wind, LLC, FPL Energy Sooner Wind, LLC, Gray County Wind Energy, LLC, High Majestic Wind Energy Center, LLC, High Majestic Wind II, LLC, Mammoth Plains Wind Project, LLC, Minco Wind Interconnection Services, LLC, Minco Wind, LLC, Minco Wind II, LLC, Minco Wind III, LLC, Palo Duro Wind Interconnection Services, LLC, Palo Duro Wind Energy, LLC, Roswell Solar, LLC, Seiling Wind Interconnection Services, LLC, Seiling Wind, LLC, Seiling Wind II, LLC, Steele Flats Wind Project, LLC, NEPM II, LLC, NextEra Energy Power Marketing, LLC.

    Description: Notification of Non-material Change in Status of the NextEra Resources Entities.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5352.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-681-000.

    Applicants: Enel Trading North America, Inc.

    Description: Baseline eTariff Filing: Enel Baseline Filing to be effective1/27/2017.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5058.

    Comments Due: 5 p.m. ET 1/17/17.

    Docket Numbers: ER17-682-000.

    Applicants: New England Power Pool Participants Committee.

    Description: § 205(d) Rate Filing: Jan 2017 Membership Filing to be effective 12/1/2016.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5059.

    Comments Due: 5 p.m. ET 1/17/17.

    Docket Numbers: ER17-683-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 802—Agreement with Montana DOT (Rouse—Oak/Story Mill Project) to be effective 2/27/2017.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5060.

    Comments Due: 5 p.m. ET 1/17/17.

    Docket Numbers: ER17-684-000.

    Applicants: Arizona Public Service Company.

    Description: Notice of Cancellation of Arizona Public Service Company—Rate Schedule No.46.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5351.

    Comments Due: 5 p.m. ET 1/13/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 28, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31880 Filed 1-3-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC17-42-000.

    Applicants: 96WI 8ME, LLC.

    Description: Clarification Letter to December 2, 2016 Application for Authorization for Disposition of Jurisdictional Facilities and Request for Expedited Action of 96WI 8ME, LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5345.

    Comments Due: 5 p.m. ET 12/30/17.

    Docket Numbers: EC17-53-000.

    Applicants: The Potomac Edison Company.

    Description: Application of The Potomac Edison Company for Authorization Pursuant to Section 203(A)(1)(B) of the Federal Power Act and Request for Limited Waiver of the Part 33 Filing Requirements.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5335.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: EC17-54-000.

    Applicants: West Penn Power Company.

    Description: Application of West Penn Power Company for Authorization Pursuant to Section 203(A)(1)(B) of the Federal Power Act and Request for Limited Waiver of the Part 33 Filing Requirements.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5336.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: EC17-55-000.

    Applicants: Monongahela Power Company.

    Description: Application of Monongahela Power Company for Authorization Pursuant to Section 203(A)(1)(B) of the Federal Power Act and Request for Limited Waiver of the Part 33 Filing Requirements.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5337.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: EC17-56-000.

    Applicants: Metropolitan Edison Company.

    Description: Application of Metropolitan Edison Company for Authorization Pursuant to Section 203(A)(1)(B) of the Federal Power Act and Request for Limited Waiver of the Part 33 Filing Requirements.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5338.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: EC17-57-000.

    Applicants: Pennsylvania Electric Company.

    Description: Application of Pennsylvania Electric Company for Authorization Pursuant to Section 203(A)(1)(B) of the Federal Power Act and Request for Limited Waiver of the Part 33 Filing Requirements.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5339.

    Comments Due: 5 p.m. ET 1/13/17.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-2124-016.

    Applicants: Spring Canyon Energy LLC.

    Description: Triennial Report for the Northwest Region of Spring Canyon Energy LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5331.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER10-2125-017.

    Applicants: Judith Gap Energy LLC.

    Description: Triennial Report for the Northwest Region of Judith Gap Energy LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5330.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER10-2128-016.

    Applicants: Wolverine Creek Energy LLC.

    Description: Triennial Report for the Northwest Region of Wolverine Creek Energy LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5333.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER10-2129-012.

    Applicants: Grays Harbor Energy LLC.

    Description: Triennial Report for the Northwest Region of Grays Harbor Energy LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5343.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER10-2132-016.

    Applicants: Willow Creek Energy LLC.

    Description: Triennial Report for the Northwest Region of Willow Creek Energy LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5329.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER10-2135-012.

    Applicants: Spindle Hill Energy LLC.

    Description: Triennial Report for the Northwest Region of Spindle Hill Energy LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5332.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER10-2727-004; ER10-2729-006; ER10-1469-005; ER13-785-004; ER10-1453-005; ER13-713-004; ER10-1459-009; ER10-2728-006; ER10-1451-004; ER10-1474-004; ER10-2687-004; ER10-1467-005; ER10-1478-006; ER10-1473-004; ER10-2688-007; ER10-1468-005; ER10-2689-007.

    Applicants: Allegheny Energy Supply Company, LLC, Buchanan Generation, LLC, The Cleveland Electric Illuminating Company, FirstEnergy Generation, LLC, FirstEnergy Generation Mansfield Unit 1 Corp., FirstEnergy Nuclear Generation, LLC, FirstEnergy Solutions Corp., Green Valley Hydro, LLC, Jersey Central Power & Light, Metropolitan Edison Company, Monongahela Power Company, Ohio Edison Company, Pennsylvania Electric Company, Pennsylvania Power Company, The Potomac Edison Company, The Toledo Edison Company, West Penn Power Company.

    Description: Triennial Market Power Update Analysis of FirstEnergy Companies.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5346.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER10-2764-016.

    Applicants: Vantage Wind Energy LLC.

    Description: Triennial Report for the Northwest Region of Vantage Wind Energy LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5342.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER16-1720-002.

    Applicants: Invenergy Energy Management LLC.

    Description: Triennial Report for the Northwest Region of Invenergy Energy Management LLC.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5341.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER16-2186-000.

    Applicants: Deseret Generation & Transmission Co-operative, Inc.

    Description: Response to December 12, 2016 Request for Additional Information of Deseret Generation & Transmission Co-operative, Inc.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5347.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-679-000.

    Applicants: Western Interconnect LLC.

    Description: § 205(d) Rate Filing: Commencement Date Revision Filing to be effective 12/28/2016.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5053.

    Comments Due: 5 p.m. ET 1/17/17.

    Docket Numbers: ER17-680-000.

    Applicants: ISO New England Inc., New England Power Pool Participants Committee.

    Description: § 205(d) Rate Filing: Part 1 of Two-Part Filing of NCPC Rule Revisions for Sub-Hourly Settlement to be effective 3/1/2017.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5056.

    Comments Due: 5 p.m. ET 1/17/17.

    Docket Numbers: ER17-680-001.

    Applicants: ISO New England Inc., New England Power Pool Participants Committee.

    Description: Tariff Amendment: Part 2 of Two-Part Filing of NCPC Rule Revisions for Sub-Hourly Settlement to be effective 3/31/2017.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5057.

    Comments Due: 5 p.m. ET 1/17/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 27, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-31841 Filed 1-3-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-1801-003: ER10-2370-002; ER10-1805-004; ER10-1808-004.

    Applicants: The Connecticut Light and Power Company, NSTAR Electric Company, Public Service Company of New Hampshire, Western Massachusetts Electric Company.

    Description: Updated Market Power Analysis for Northeast Region of the Eversource Companies.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5164.

    Comments Due: 5 p.m. ET 2/27/17.

    Docket Numbers: ER10-2010-005; ER10-1714-008.

    Applicants: PPL Electric Utilities Corporation, LG&E Energy Marketing Inc.

    Description: Triennial Market Power Update of the PPL Northeast Companies.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5161.

    Comments Due: 5 p.m. ET 2/27/17.

    Docket Numbers: ER10-2607-004; ER10-2626-003.

    Applicants: Old Dominion Electric Cooperative, Inc., TEC Trading, Inc.

    Description: Updated Market Power Analyses in Northeast Region of the ODEC Entities.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5355.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER11-47-007; ER10-2981-007; ER11-41-007; ER11-46-010; ER12-1540-005; ER12-1541-005; ER12-1542-005; ER12-1544-005; ER12-2343-005; ER13-1896-011; ER14-2475-004; ER14-2476-004; ER14-2477-004; ER14-594-009; ER16-323-003.

    Applicants: Appalachian Power Company, Indiana Michigan Power Company, Kentucky Power Company, Kingsport Power Company, Wheeling Power Company, AEP Texas Central Company, AEP Texas North Company, Public Service Company of Oklahoma, Southwestern Electric Power Company, Ohio Power Company, AEP Energy Partners, Inc., AEP Retail Energy Partners LLC, AEP Energy, Inc., AEP Generation Resources Inc., Ohio Valley Electric Corporation.

    Description: Updated Market Power Analysis in the PJM balancing area authority of the AEP MBR Companies.

    Filed Date: 12/27/16.

    Accession Number: 20161227-5162.

    Comments Due: 5 p.m. ET 2/27/17.

    Docket Numbers: ER17-685-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Queue #Y1-077, First Revised Service Agreement No. 3645 to be effective11/28/2016.

    Filed Date: 12/28/16.

    Accession Number: 20161228-5081.

    Comments Due: 5 p.m. ET 1/18/17.

    Docket Numbers: ER17-686-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: 2016-12-28_MISO Transmission Owners Agreement and Bylaw Revisions to be effective 2/27/2017.

    Filed Date: 12/28/16.

    Accession Number: 20161228-5083.

    Comments Due: 5 p.m. ET 1/18/17.

    Docket Numbers: ER17-687-000.

    Applicants: NRG Wholesale Generation LP.

    Description: Tariff Cancellation: Notice of Termination for Rate Schedule FERC No. 5 to be effective 7/12/2016.

    Filed Date: 12/28/16.

    Accession Number: 20161228-5091.

    Comments Due: 5 p.m. ET 1/18/17.

    Docket Numbers: ER17-688-000.

    Applicants: NRG Wholesale Generation LP.

    Description: Tariff Cancellation: Notice of Termination for FERC Electric Tariff, Original Volume No. 7 to be effective 3/1/2016.

    Filed Date: 12/28/16.

    Accession Number: 20161228-5092.

    Comments Due: 5 p.m. ET 1/18/17.

    Docket Numbers: ER17-689-000.

    Applicants: NRG Wholesale Generation LP.

    Description: Tariff Cancellation: Notice of Termination for Rate Schedule FERC No. 8 to be effective 2/2/2016.

    Filed Date: 12/28/16.

    Accession Number: 20161228-5093.

    Comments Due: 5 p.m. ET 1/18/17.

    Docket Numbers: ER17-690-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: 2016-12-28_SA 2983 Entergy Louisiana-Entergy Louisiana GIA (J396) to be effective 12/29/2016.

    Filed Date: 12/28/16.

    Accession Number: 20161228-5102.

    Comments Due: 5 p.m. ET 1/18/17.

    Docket Numbers: ER17-691-000.

    Applicants: Midcontinent Independent System Operator, Inc., ITC Midwest LLC.

    Description: § 205(d) Rate Filing: 2016-12-28_SA 2883 ITC Midwest-MidAmerican 1st Rev FSA (H009) to be effective 1/1/2017.

    Filed Date: 12/28/16.

    Accession Number: 20161228-5104.

    Comments Due: 5 p.m. ET 1/18/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 28, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31881 Filed 1-3-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. IC17-1-000] Commission Information Collection Activities; Comment Request for Generic Clearance for the Collection of Qualitative Feedback on Commission Service Delivery AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Comment request.

    SUMMARY:

    As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the Federal Energy Regulatory Commission (the Commission or FERC) is coordinating the development of the following proposed Generic Information Collection Request (ICR): FERC-153, “Generic Clearance for the Collection of Qualitative Feedback on Commission Service Delivery” for approval under the Paperwork Reduction Act (PRA).1 This notice announces that FERC intends to submit this collection to OMB for approval and solicits comments on specific aspects for the proposed information collection. Previously, the Commission previously published a 60-day notice in the Federal Register on October 12, 2016 and received no comments.

    1 44 U.S.C. 3501 et seq.

    DATES:

    Comments on the collection of information are due by February 3, 2017.

    ADDRESSES:

    Comments filed with OMB, identified by the Docket No. IC17-1-000, should be sent via email to the Office of Information and Regulatory Affairs: [email protected] Attention: Federal Energy Regulatory Commission Desk Officer. The Desk Officer may also be reached via telephone at 202-395-4718.

    A copy of the comments should also be sent to the Commission, in Docket No. IC17-1-000, by either of the following methods:

    eFiling at Commission's Web site: http://www.ferc.gov/docs-filing/efiling.asp.

    Mail/Hand Delivery/Courier: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    Instructions: All submissions must be formatted and filed in accordance with submission guidelines at: http://www.ferc.gov/help/submission-guide.asp. For user assistance contact FERC Online Support by email at [email protected], or by phone at: (866) 208-3676 (toll-free), or (202) 502-8659 for TTY.

    Docket: Users interested in receiving automatic notification of activity in this docket or in viewing/downloading comments and issuances in this docket may do so at http://www.ferc.gov/docs-filing/docs-filing.asp.

    FOR FURTHER INFORMATION CONTACT:

    Ellen Brown may be reached by email at [email protected], by telephone at (202) 502-8663, and by fax at (202) 273-0873.

    SUPPLEMENTARY INFORMATION:

    This notice announces that FERC intends to submit this collection to OMB for approval and solicits comments on specific aspects for the proposed information collection. Previously, the Commission previously published a 60-day notice in the Federal Register (81 FR 70402, 10/12/2016) and received no comments.

    Title: FERC-153, Generic Clearance for the Collection of Qualitative Feedback on Commission Service Delivery.

    OMB Control No.: To be determined.

    Type of Request: New generic information collection.

    Abstract: The proposed information collection provides a means to garner qualitative customer and stakeholder feedback in an efficient, timely manner, in accordance with the Administration's commitment to improving service delivery. By qualitative feedback, we mean data that provides useful insights on perceptions and opinions, but are not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences, and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training or changes in operations might improve delivery of products or services. This collection will allow for ongoing, collaborative and actionable communications between FERC and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.

    The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on the Commission's services will be unavailable.

    The Commission will only submit a collection for approval under this generic clearance if it meets the following conditions:

    • The collections are voluntary;

    • The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden hours per respondent) and are low-cost for both the respondents and the Federal Government;

    • The collections are non-controversial and do not raise issues of concern to other Federal agencies;

    • The collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;

    • Personally identifiable information (PII) is collected only to the extent necessary and is not retained;

    • Information gathered is intended to be used only internally for general service improvement and program management purposes and is not intended for release outside of the Commission (if released, the Commission must indicate the qualitative nature of the information);

    • Information gathered will not be used for the purpose of substantially informing influential policy decisions; and

    • Information gathered will yield qualitative information; the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.

    Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study.

    As a general matter, this information collection will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.

    This information collection is subject to the PRA. The Commission generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information which does not display a valid OMB Control Number. See 5 CFR 1320. OMB authorization for an information collection cannot be for more than three years without renewal.

    Type of Respondents/Affected Public: Individuals and households; Businesses or other for-profit and not-for-profit organizations; State, Local, or Tribal government.

    Estimate of Annual Burden:2 The Commission estimates the annual public reporting burden and cost for the information collection as:

    2 Burden is defined as the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. For further explanation of what is included in the information collection burden, refer to 5 Code of Federal Regulations 1320.3.

    Estimated Annual Burden for Generic Clearance Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total number
  • of responses
  • Average
  • burden
  • minutes per
  • response
  • Total burden
  • hours
  • (1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) Generic Clearance 15,000 1 15,000 6 3 1,500

    Comments: Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.

    2 1,500 hours = 90,000 minutes.

    Dated: December 23, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31662 Filed 1-3-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Southwestern Power Administration Integrated System Rate Schedule AGENCY:

    Southwestern Power Administration, DOE.

    ACTION:

    Notice of Rate Order.

    SUMMARY:

    The Deputy Secretary has approved and placed into effect on an interim basis Rate Order No. SWPA-71, which provides the following Integrated System Non-Federal Transmission Service (NFTS) Rate Schedule: Rate Schedule NFTS-13A, Wholesale Rates for Non-Federal Transmission Service.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Marshall Boyken, Senior Vice President, Chief Operating Officer, Office of Corporate Operations, Southwestern Power Administration, U.S. Department of Energy, One West Third Street, Tulsa, Oklahoma 74103, (918) 595-6646, [email protected], or facsimile transmission (918) 595-6646.

    SUPPLEMENTARY INFORMATION:

    Pursuant to Delegation Order Nos. 00-037.00A, effective October 25, 2013, and 00-001.00F, effective November 17, 2014, Rate Order No. SWPA-71, is approved and placed into effect on an interim basis for the period January 1, 2017, through September 30, 2017, pursuant to the following rate schedule: Rate Schedule NFTS-13A, Wholesale Rates for Non-Federal Transmission Service, which supersedes the existing Rate Schedule NFTS-13, Wholesale Rates for Non-Federal Transmission Service.

    Southwestern Power Administration's (Southwestern) Administrator has determined that an additional section within Southwestern's Integrated System NFTS Rate Schedule is necessary to better align Southwestern's rate schedule with standard practices utilized by the Southwest Power Pool, Inc. (SPP) Regional Transmission Organization. The new section 2.3.6 establishes a procedure for determining an Annual Revenue Requirement (ARR) for customers that choose to contract for Network Integration Transmission Service (NITS) on Southwestern's transmission system pursuant to the SPP Open Access Transmission Tariff (OATT).

    The NFTS-13 Rate Schedule included a stated rate for NITS that is calculated by dividing Southwestern's monthly revenue requirement, derived from Southwestern's NFTS ARR identified within the Southwestern 2013 Integrated System Power Repayment Studies (PRS), by the net transmission capacity available for NITS. Modifying Southwestern's rate schedule to include an ARR for SPP NITS, rather than applying a stated rate better aligns with standard practices utilized by SPP. Therefore, in place of applying the NITS stated rate for SPP NITS on Southwestern's transmission system, the proposed Section 2.3.6 includes a procedure for determining and updating an SPP NITS ARR, as a portion of Southwestern's NFTS ARR, based on the amount of revenue assumed to be recovered on an annual basis from NITS customers in each approved PRS. If additional customers choose to contract for SPP NITS on Southwestern's transmission system, the new Section 2.3.6 methodology updates the SPP NITS ARR. The title of the NFTS-13 Rate Schedule was changed to NFTS-13A to reflect the addition of Section 2.3.6.

    The Southwestern 2013 PRS indicated that rates (total Southwestern NFTS ARR) prescribed by NFTS-13, Wholesale Rates for Non-Federal Transmission Service, as approved in Docket No. EF14-1-000, for the period October 1, 2013, through September 30, 2017, are sufficient to meet repayment criteria and will have no impact on the amortization or status of repayment forecasted in the Southwestern 2013 PRS and will not require rate changes. Revenues based on current rates remain sufficient to meet repayment criteria.

    The Southwestern Administrator has followed Title 10, Part 903, Subpart A of the Code of Federal Regulations, “Procedures for Public Participation in Power and Transmission Rate Adjustments and Extensions,” in connection with the rate schedule revisions. The public was advised by notice published in the Federal Register (81 FR 75814), November 1, 2016, of the proposed rate schedule change and of the opportunity to provide written comments for a period of 30 days ending December 1, 2016. One customer provided comments during the period of public participation related to the proposed rate schedule change, which consisted of some clarifying questions that Southwestern answered and one comment on phrasing that Southwestern acknowledged.

    Information regarding this rate proposal, including studies and other supporting material, and comments received is available for public review in the offices of Southwestern Power Administration, Williams Tower I, One West Third Street, Tulsa, Oklahoma 74103. Following review of Southwestern's proposal within the Department of Energy, I approve Rate Order No. SWPA-71.

    Dated: December 23, 2016. Elizabeth Sherwood-Randall, Deputy Secretary. United States of America Department of Energy Deputy Secretary

    In the matter of: Southwestern Power Administration Integrated System Non-Federal Transmission Service Rate Schedule

    Rate Order No. SWPA-71
    ORDER CONFIRMING, APPROVING AND PLACING REVISED POWER RATE SCHEDULES IN EFFECT ON AN INTERIM BASIS

    Pursuant to Sections 302(a) and 301(b) of the Department of Energy Organization Act, Public Law 95-91, the functions of the Secretary of the Interior and the Federal Power Commission under Section 5 of the Flood Control Act of 1944, 16 U.S.C. 825s, relating to the Southwestern Power Administration (Southwestern) were transferred to and vested in the Secretary of Energy. By Delegation Order No. 00-037.00A, the Secretary of Energy delegated to the Administrator of Southwestern the authority to develop power and transmission rates, delegated to the Deputy Secretary of the Department of Energy the authority to confirm, approve, and place in effect such rates on an interim basis and delegated to the Federal Energy Regulatory Commission (FERC) the authority to confirm and approve on a final basis or to disapprove rates developed by the Administrator under the delegation. Pursuant to that delegated authority, the Deputy Secretary has issued this interim rate order.

    BACKGROUND

    In July 2013, Southwestern completed its review of the adequacy of the current rate schedules for the Integrated System and finalized its 2013 Power Repayment Studies (2013 PRS). The studies indicated that the proposed rates would meet cost recovery criteria for the Integrated System, including the identified Non-Federal Transmission Service (NFTS) Annual Revenue Requirement (ARR). The Federal Energy Regulatory Commission (FERC) confirmation and approval of the following Integrated System rate schedules was provided in a FERC order issued in Docket No. EF14-1-000 on January 9, 2014,1 for the period October 1, 2013, through September 30, 2017:

    1 146 FERC ¶62,016

    Rate Schedule P-13, Wholesale Rates for Hydro Peaking Power Rate Schedule NFTS-13, Wholesale Rates for Point-to-Point and Network Transmission Service Rate Schedule EE-13, Wholesale Rate for Excess Energy Based on operations under the approved rate schedules, the Administrator determined that an additional section outlining a new methodology within Southwestern's Integrated System Non-Federal Transmission Service (NFTS-13) Rate Schedule is necessary to better align Southwestern's rate schedule with standard practices utilized by the Southwest Power Pool, Inc. (SPP) Regional Transmission Organization. A new section 2.3.6 is proposed that establishes a procedure for determining an ARR for customers that choose to contract for Network Integration Transmission Service (NITS) on Southwestern's transmission system pursuant to the SPP Open Access Transmission Tariff (OATT).

    The new Section 2.3.6 does not change Southwestern's NFTS ARR, as determined in its 2013 PRS, but rather replaces the current stated-rate for SPP NITS with a revenue-requirement based methodology that includes determining the SPP NITS ARR portion of Southwestern's NFTS ARR. Furthermore, the new Section 2.3.6 affects only those customers that choose to contract for SPP NITS on Southwestern's transmission system under the SPP OATT.

    The designation of the aforementioned rate schedule has been revised from NFTS-13 to NFTS-13A to reflect that an addition has been made.

    Southwestern followed Title 10, Part 903 Subpart A, of the Code of Federal Regulations, “Procedures for Public Participation in Power and Transmission Rate Adjustments and Extensions” (Part 903) in connection with the proposed Rate Schedule NFTS-13A. An opportunity for customers and other interested members of the public to review and comment on the proposed rate schedule was announced by notice published in the Federal Register November 1, 2016, (81 FR 75814), with written comments due by December 1, 2016. One customer provided comments during the period of public participation related to the proposed rate schedule change, which consisted of some clarifying questions that Southwestern answered and one comment on phrasing that Southwestern acknowledged.

    DISCUSSION

    The NFTS-13 Rate Schedule includes a stated rate for NITS that is calculated by dividing Southwestern's monthly revenue requirement, derived from Southwestern's NFTS ARR identified within the 2013 PRS, by the net transmission capacity available for NITS. Modifying Southwestern's rate schedule to include an ARR for SPP NITS, rather than applying a stated rate, better aligns with standard practices utilized by SPP. Therefore, in place of applying the NITS stated rate for SPP NITS on Southwestern's transmission system, the new Section 2.3.6 in NFTS-13A includes a procedure for determining and updating an SPP NITS ARR, as a portion of Southwestern's NFTS ARR, based on the amount of revenue assumed to be recovered on an annual basis from NITS customers in each approved PRS. If additional customers choose to contract for SPP NITS on Southwestern's transmission system, the proposed Section 2.3.6 methodology updates the SPP NITS ARR.

    COMMENTS AND RESPONSES

    Southwestern received comments from one customer during the period of public participation related to the proposed rate schedule change, which consisted of some clarifying questions that Southwestern answered and one comment on phrasing that Southwestern acknowledged. Southwestern made no change to the proposed rate schedule as a result of the questions and comment received. The questions and comment, with Southwestern's responses in underlined text, are detailed below.

    Questions:

    1. Will NITS for delivery to loads within Southwestern's system only be available under the terms of the SPP OATT? Yes, for new transmission service. Additionally, as current Southwestern transmission service agreements expire (for grandfathered service or service under Southwestern's OATT), they will not be renewed; so if continued service is desired, it would be under a new SPP OATT agreement.

    If not, under what conditions may a customer elect to take Southwestern NITS? Per Southwestern's agreement with SPP, which is filed as Attachment AD of the SPP OATT, new Southwestern OATT NITS agreements will not be entered into.

    2. Approximately how many MWs of Southwestern NITS Capacity are currently reserved? 66 MW is currently reserved as NITS under both the Southwestern and SPP OATTs.

    3. Will current Southwestern NITS customers be allowed to renew their Southwestern NITS Agreement(s), or will they transition to SPP NITS? As current Southwestern transmission service agreements expire (for grandfathered service or service under Southwestern's OATT), they will not be renewed; so if continued service is desired, it would be under a new SPP OATT agreement, per SPP OATT Attachment AD.

    4. Do you expect Section 2.3.5. to apply to both SPP NITS and Southwestern NITS? I believe the peak billing demand methodology is different. Section 2.3.5 applies to Southwestern NITS only. The new Section 2.3.6 applies to SPP NITS only.

    5. My understanding is that SPP bills NITS load on a 12CP basis, whereas, Southwestern bills NITS load on a 1CP basis (per 2.3.5). Is it correct that NITS Transmission Customers on Southwestern's system will pay less for SPP NITS service than for equivalent Southwestern NITS service? Southwestern NITS customers are billed on a 1 CP basis and SPP NITS customers are billed on 12 CP basis, both in accordance with their respective OATT's.

    As to whether or not SPP NITS will cost less than Southwestern NITS, several factors will have to be assessed to make that determination, including the entities' proportion of load at the time of the monthly CP and the amount of transmission service reserved that was transitioned to SPP NITS (per the proposed Section 2.3.6). Additionally, entities choosing to utilize SPP NITS will be subject to various SPP charges (i.e. Schedule 11) that may add cost to the SPP NITS. The analysis of these costs can only be determined by the particular customer and their unique set of circumstances. Therefore, a statement that conveys certainty of a lower cost for SPP NITS cannot be made.

    Comment:

    1. There are several general references in the proposed NFTS-13A to Network Integration Transmission Service. In a few instances, the document refers to SPP NITS or Southwestern NITS. I think it would be good to clarify in each instance if we are referring to SPP NITS, Southwestern NITS, or both. Comment acknowledged. We will review the language and ensure the final rate schedule has clarity between SPP NITS and Southwestern NITS.

    AVAILABILITY OF INFORMATION

    Information regarding this rate schedule change is available for public review in the offices of Southwestern Power Administration, Williams Tower I, One West Third Street, Tulsa, Oklahoma 74103.

    ADMINISTRATOR'S CERTIFICATION

    The revised rate schedule will repay all costs of the Integrated System including amortization of the power investment consistent with the provisions of Department of Energy Order No. RA 6120.2. In accordance with Delegation Order Nos. 00-037.00A, effective October 25, 2013, and 00-001.00F, effective November 17, 2014, and Section 5 of the Flood Control Act of 1944, the Administrator has determined that the proposed Integrated System rate schedule is consistent with applicable law and the lowest possible rates consistent with sound business principles.

    ENVIRONMENT

    The Southwestern NEPA Compliance Officer determined that the currently-approved Integrated System rates fall within the class of actions that are categorically excluded from the requirements of preparing either an Environmental Impact Statement or an Environmental Assessment. No additional evaluation of the environmental impact of the proposed rate schedule changes was conducted because no change in anticipated revenues was contemplated.

    ADMINISTRATIVE PROCEDURES

    The Administrative Procedure Act (5 U.S.C. 553(d)) (APA) prescribes that the required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except (1) a substantive rule that grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. For the reasons stated in the paragraph that follows, the Department of Energy (DOE) finds good cause to waive the 30-day delay in effective date because a 30-day delay would be unnecessary.

    In this action, Southwestern updates the method for charging non-Federal transmission customers who choose to contract for SPP NITS on Southwestern's transmission system under the SPP OATT from a stated rate to a revenue-requirement based charge, to better align with standard practices utilized by SPP. Because the NFTS-13A rate schedule change will result in no change in anticipated revenues, it is considered a “minor rate adjustment” pursuant to 10 CFR part 903, subpart A, and Southwestern has treated it as such in the rate schedule actions to date. A “minor rate adjustment” is defined as a rate adjustment that (1) will produce less than 1 percent change in the annual revenues of the power system; or (2) is for a power system that has either annual sales normally less than 100 million kilowatt hours or an installed capacity of less than 20,000 kilowatts. When consistent with the APA, DOE regulations also provide that the effective date of rate schedules put into effect on an interim basis by the Deputy Secretary may be sooner than 30 days after the Deputy Secretary's decision when making a minor rate adjustment.

    Additionally, DOE emphasizes that there were no substantive issues or concerns raised during the public comment period for the NFTS-13A rate schedule action.

    ORDER

    In view of the foregoing and pursuant to the authority delegated to me by the Secretary of Energy, I hereby confirm, approve and place in effect on an interim basis, effective January 1, 2017, the Southwestern Integrated System Rate Schedule NFTS-13A which shall remain in effect on an interim basis through September 30, 2017, or until the FERC confirms and approves the rates on a final basis.

    Dated: December 23, 2016.

    Elizabeth Sherwood-Randall, Deputy Secretary.
    [FR Doc. 2016-31885 Filed 1-3-17; 8:45 am] BILLING CODE 6450-01-P
    FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Bank Holding Companies

    The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below.

    The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.

    Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 27, 2017.

    A. Federal Reserve Bank of St. Louis (David L. Hubbard, Senior Manager) P.O. Box 442, St. Louis, Missouri 63166-2034. Comments can also be sent electronically to [email protected]:

    1. American Pacific Bancorp, Inc., Harrisburg, Illinois; to become a bank holding company by acquiring 67 percent of Main Street Bancshares, Inc., Harrisburg, Illinois, and thereby indirectly acquiring Grand Rivers Community Bank, Grand Chain, Illinois.

    Board of Governors of the Federal Reserve System, December 29, 2016. Yao-Chin Chao, Assistant Secretary of the Board.
    [FR Doc. 2016-31913 Filed 1-3-17; 8:45 am] BILLING CODE 6210-01-P
    FEDERAL RESERVE SYSTEM Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company

    The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).

    The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than January 18, 2017.

    A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:

    1. The Bryant James Gingrich 2012 Irrevocable Trust, the Bryant James Gingrich 2016 Irrevocable Trust, and Bryant James Gingrich, acting in his capacity as trustee of both trusts, all of Alva, Oklahoma; the Chad Wisdom McManus 2012 Irrevocable Trust, the Chad Wisdom McManus 2016 Irrevocable Trust, and Chad Wisdom McManus, acting in his capacity as trustee of both trusts, all of Enid, Oklahoma; and the Kelsey Grace Gingrich 2012 Irrevocable Trust, the Kelsey Grace Hunter 2016 Irrevocable Trust, and Kelsey Grace Hunter (née Gingrich), acting in her capacity as trustee of both trusts, all of Edmond, Oklahoma; to acquire voting shares of Grace Investment Company, Inc., Alva, Oklahoma, and thereby join the existing Peggy J. Wisdom Family Control Group previously approved to control 25 percent or more of the voting shares of Grace Investment Company, Inc. Grace Investment Company, Inc. is the parent holding company of Alva State Bank and Trust Company, Alva, Oklahoma; First National Bank in Okeene, Okeene, Oklahoma; and The First State Bank, Kiowa, Kansas.

    Board of Governors of the Federal Reserve System, December 29, 2016. Yao-Chin Chao, Assistant Secretary of the Board.
    [FR Doc. 2016-31914 Filed 1-3-17; 8:45 am] BILLING CODE 6210-01-P
    FEDERAL TRADE COMMISSION IoT Home Inspector Challenge AGENCY:

    Federal Trade Commission.

    ACTION:

    Notice; public challenge.

    SUMMARY:

    The Federal Trade Commission (“FTC”) announces a prize competition that challenges the public to create a technical solution (“tool”) that consumers can deploy to guard against security vulnerabilities in software on the Internet of Things (“IoT”) devices in their homes. The tool would, at a minimum, help protect consumers from security vulnerabilities caused by out-of-date software. Contestants have the option of adding features, such as those that would address hard-coded, factory default or easy-to-guess passwords. The prize for the competition is up to $25,000, with $3,000 available for each honorable mention winner(s). Winners will be announced on or about July 27, 2017.

    DATES:

    The deadline for registering and submitting entries is May 22, 2017 at 12:00 p.m. EDT. Further instructions and requirements regarding the registration and submission process will be provided on the Contest Web site (ftc.gov/iothomeinspector).

    FOR FURTHER INFORMATION CONTACT:

    Ruth Yodaiken, 202-326-2127, Division of Privacy and Identity Protection, Bureau of Consumer Protection, FTC; 600 Pennsylvania Ave. NW., Mailstop CC-8232, Washington, DC 20580.

    SUPPLEMENTARY INFORMATION:

    The FTC IoT Home Inspector Challenge (the “Contest”) encourages the public to create a tool that consumers can deploy to guard against security vulnerabilities in software on the IoT devices in their homes. The tool would, at a minimum, help protect consumers from security vulnerabilities caused by out-of-date software. The competition's purpose is to stimulate innovation and progress in protecting and empowering consumers against security risks associated with IoT devices in the home.

    A. Background

    Every day, American consumers use Internet-connected devices 1 to make their homes “smarter.” Consumers can remotely program their smart home devices to turn on their lights, start the oven, and turn on soft music so they return to a comfortable environment when they get home from work. Smart video monitors enable consumers to remotely view their homes, pets, or children. Smart fire and burglar alarms address safety issues through sensors and alerts. And smart thermostats can automatically adjust temperature settings depending on the time of day and presence of people in the house. To tie all these devices together, smart home platforms are also beginning to proliferate across the marketplace.

    1 As used herein, “Internet-connected,” “IoT,” or “smart” devices are devices other than desktop or laptop computers or smartphones.

    While these smart devices enable enormous convenience and safety benefits, they can also create security risks. For example, press reports from October 2016 demonstrated how smart devices could be used in “botnets” to disrupt the Internet.2 This incident demonstrated that lax IoT device security can threaten not just device owners, but the entire Internet. In another incident, a group of hackers allegedly gained unauthorized access to routers manufactured by the tech company ASUS and left a text file warning stating, “Your Asus router (and your documents) can be accessed by anyone in the world with an internet connection.” 3 The FTC announced a settlement with ASUS last year, alleging that the company did not maintain reasonable security, resulting in threats to personal information. Further, there have been numerous reported incidents where the live feeds from consumers' smart cameras have been available on the Internet. One company whose cameras were allegedly vulnerable in this manner, TRENDnet, was the subject of an earlier Commission law enforcement action.4

    2See, e.g., “Americans uneasy with IoT devices like those used in Dyn DDoS attack, survey finds,” Tech Crunch, Darrell Etherington (October 24, 2016) (stating that a “coordinated botnet attack effectively choked internet access to a large number of popular sites” and was attributed “in large part due to the spread of connected Internet of Things (IoT) devices”), available at https://techcrunch.com/2016/10/24/americans-uneasy-with-iot-devices-like-those-used-in-dyn-ddos-attack-survey-finds/.

    3 “ASUS Settles FTC Charges That Insecure Home Routers and “Cloud” Services Put Consumers' Privacy At Risk,” FTC press release (February 23, 2016), available at https://www.ftc.gov/news-events/press-releases/2016/02/asus-settles-ftc-charges-insecure-home-routers-cloud-services-put.

    4 “FTC Approves Final Order Settling Charges Against TRENDnet, Inc.,” FTC press release (February 7, 2014), available at https://www.ftc.gov/news-events/press-releases/2014/02/ftc-approves-final-order-settling-charges-against-trendnet-inc.

    Consumers themselves are uneasy about the security risks of IoT devices. One recent survey found that more than 40% of respondents are “not confident at all” that IoT devices are safe, secure, and able to protect personal information.” Fifty percent of consumers surveyed said that “concerns about the cybersecurity of an IoT device have discouraged them from purchasing one.” 5

    5See, e.g., “New ESET/NCSA Survey Explores the Internet of (Stranger) Things,” ESET/National Cyber Security Alliance study, available at https://www.eset.com/us/resources/detail/survey-internet-of-stranger-things/ and https://cdn3.esetstatic.com/eset/US/resources/press/ESET_ConnectedLives-DataSummary.pdf.

    The Commission staff has previously recommended that IoT device manufacturers take appropriate steps to address the security of their devices. It has recommended that, among other things, companies in the IoT space: (1) Build security into their devices at the outset; (2) train employees on good security practices; (3) ensure downstream privacy and data protections through vendor contracts and oversight; (4) apply defense-in-depth strategies that offer protections at multiple levels and interfaces; and (5) put in place reasonable access controls.6 The FTC's Careful Connections and Start with Security publications offer more detailed guidance.7

    6 “Internet of Things: Privacy and Security in a Connected World,” FTC Staff Report (January 2015), available at https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf.

    7 Start with Security: A Guide for Businesses,” (“Start with Security”), available at https://www.ftc.gov/tips-advice/business-center/guidance/start-security-guide-business; “Careful Connections: Building Security in the Internet of Things,” available at https://www.ftc.gov/tips-advice/business-center/guidance/careful-connections-building-security-internet-things.

    One important component of IoT security is updating and providing security patches. If products do not have the latest security updates, they can be vulnerable to outside threats. Today, although some devices are updated automatically, many devices require consumers to take steps in order to install the update or make necessary adjustments.8 To be able to take these steps, consumers must have a certain level of technical expertise. In particular, consumers must know how to check for security updates and install them. The problem of how to simplify this task is compounded by the thriving market in this area: There are many different types of software (even within a single device), ways to configure devices, and approaches to updating.9 As devices within the home multiply, the task of updating devices could become increasingly daunting.

    8 “They Keep Coming Back Like Zombies': Improving Software Updating Interfaces,” Arunesh Mathur, Josefine Engel, Sonam Sobti, Victoria Chang, and Marshini Chetty, Univ. of Maryland, College Park, available at https://www.usenix.org/system/files/conference/soups2016/soups2016-paper-mathur.pdf.

    9 More details about these technical issues can be found in material related to the National Telecommunications & Information Administration's Multistakeholder Process for IoT Security and Upgradeability and Patching, available at https://www.ntia.doc.gov/other-publication/2016/multistakeholder-process-iot-security.

    B. The Competition

    With this Contest, the FTC seeks to encourage the development of a technical tool to assist consumers with ensuring that IoT devices in the home are running up-to-date software. Such a tool might be a physical device that the consumer adds to his or her home network that checks and installs updates for other IoT devices on that home network. It might be an app or cloud-based service that allows consumers to submit IoT device model numbers, and, based on that input, provides information on how the consumer can install updates. A dashboard or other user interface might inform the consumer about which devices were up-to-date already, those that had unpatched software vulnerabilities, and even those that the manufacturer no longer supported.

    The Contest is subject to all applicable laws and regulations. Registering to enter the Contest constitutes Contestant's full agreement to these official rules and to decisions of the Sponsor (as defined below), which are final and binding in all matters related to the Contest. Winning a Prize is contingent upon fulfilling all requirements set forth in the official rules.

    1. Sponsor Organization

    A. Sponsor: Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.

    2. Eligibility

    A. To participate in the Contest:

    (i) Contestants may compete as individuals or as teams of individuals, if they meet all eligibility requirements set forth in Sections 2.A-D. To be eligible to win a Prize, Contestants must meet the additional prize eligibility requirements set forth in Section 9.

    (ii) Contestants must comply with all terms and conditions of the official rules.

    (iii) Contestants must own or have access at their own expense to a computer, an Internet connection, and any other electronic devices, documentation, software, or other items that Contestants may deem necessary to create and enter a Submission (as defined in Section 4 below).

    (iv) Each team must appoint one individual (the “Representative”) to represent and act on behalf of said team, including by entering a Submission (as outlined below). The Representative must be duly authorized to submit on behalf of the team, and must represent and warrant that he or she is duly authorized to act on behalf of the team.

    (v) An individual may enter the Contest only once, either on an individual basis or as a member of one team.

    (vi) No individual or team may enter the Contest on behalf of a corporation or other non-individual legal entity.

    B. Those ineligible to participate:

    The following individuals (including any individuals participating as part of a team) are not eligible regardless of whether they meet the criteria set forth above:

    (i) any individual under the age of 18 at the time of submission;

    (ii) any individual who employs any of the Contest Judges as an employee or agent;

    (iii) any individual who owns or controls an entity for whom a Contest Judge is an employee, officer, director, or agent;

    (iv) any individual who has a material business or financial relationship with any Contest Judge;

    (v) any individual who is a member of any Contest Judge's immediate family or household;

    (vi) any employee, representative or agent of the Sponsor and all members of the immediate family or household of any such employee, representative, or agent;

    (vii) any Federal employee acting within the scope of his or her employment, or as may otherwise be prohibited by Federal law (employees should consult their agency ethics officials);

    (viii) any individual or team that used Federal facilities or consulted with Federal employees to develop a Submission, unless the facilities and employees were made available to all Contestants participating in the Contest on an equitable basis; and

    (ix) any individual or team that used Federal funds to develop a Submission, unless such use is consistent with the grant award, or other applicable Federal funds awarding document. If a grantee using Federal funds enters and wins this Contest, the prize monies shall be treated as program income for purposes of the original grant in accordance with applicable Office of Management and Budget Circulars. Federal contractors may not use Federal funds from a contract to develop a Submission for this Challenge.

    The Sponsor will, in its sole discretion, disqualify any individual or team that meets any of the criteria set forth in Section 2.B.

    C. For purposes hereof:

    (i) the members of an individual's immediate family include such individual's spouse, children and step-children, parents and step-parents, and siblings and step-siblings; and

    (ii) the members of an individual's household include any other person who shares the same residence as such individual for at least three (3) months out of the year.

    D. Pursuant to the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Reauthorization Act of 2010, 15 U.S.C. 3719, Contest Prizes (as defined in Section 8 below) may be awarded only to individuals and teams of individuals who are citizens or permanent residents of the United States, subject to verification by the Sponsor before Prizes are awarded (see Section 9 below).

    3. Registration Requirement for All Contestants

    A. Contestants must register no later than 12:00 p.m. EDT May 22, 2017 (“Contest Deadline”), to participate in the Contest.

    B. To enter, every Contestant, including each member of a team, must register by submitting a form, available on the Contest Web site (“Registration Form”), to verify that he or she has read and agreed to abide by the official rules and meets the eligibility requirements. Additional information and requirements about the registration process will be provided on the Contest Web site.

    C. After a Contestant registers, the Sponsor will send a confirmation message to the email address provided by the Contestant. The Contestant should use the confirmation message to verify the email address that he or she provided in order to receive important Contest updates.

    D. In the event of a dispute pertaining to this Contest, the authorized account holder of the email address listed at registration will be deemed to be the Contestant. The “authorized account holder” is the natural person assigned an email address by an Internet access provider, online service provider, or other organization responsible for assigning email addresses for the domain associated with the submitted address. Contestants may be required to provide more information as evidence that they are the authorized account holder.

    4. Submission

    A. Parts of the Submission:

    The Submission must contain three components that should describe the technical tool the Contestant has developed to assist consumers with security.

    (i) A title and a brief text description (“abstract”) of how the tool functions, which will be made public and should be easy for the public to understand. It must not be more than one page, with font size of no less than 11 points and margins of no less than one inch.

    (ii) A link to the Contestant's video that is publicly available on Youtube.com or Vimeo.com demonstrating how the tool works. It must not be more than five (5) minutes long.

    (iii) A detailed written description of the tool that enables Judges to evaluate how well it works, how user-friendly it is, and how scalable it is (“Detailed Explanation”), including how the tool will avoid or mitigate any additional security risks that it itself might introduce into the consumer's home. It must not be more than 15 pages, with font size of not less than 11 points and margins of no less than one inch.

    See Section 7 (Submission Requirements) for further details.

    The Submission itself shall not contain information revealing the Contestant's identity, such as a name, address, employment information, or other identifying details, except that Contestants may include their own voice or image in the video. Additional information and requirements about the Submission process will be provided on the Contest Web site.

    B. Submission Deadlines:

    Contestants must enter their Submissions by the Contest Deadline, 12:00 p.m. EDT May 22, 2017. Any Submissions entered following the Contest Deadline, as determined solely by the Sponsor, shall be disqualified. The judging period will commence after the Contest Deadline.

    C. Terms for Submissions:

    (i) All parts of the Submission must be submitted together in a single email by the Contest Deadline.

    (ii) Contestants must use the email address provided on their Registration Form (or in the case of a team, the email address on the team Representative's Registration Form).

    (iii) No part of a Submission, including any records, platforms, technologies, or licenses required to evaluate the Submission, may require the Sponsor or Contest Judges to spend money or otherwise obtain anything of value; or to execute or enter into any binding agreement not otherwise provided for under these Rules.

    (iv) Submissions from a team must be indicated as such when entering a Submission.

    (v) Submissions must be in English, except that textual or video material in a language other than English will be accepted if accompanied by an English translation of the text or video—within the existing page limits for the Submission.

    (vi) Any solution that was publicly available prior to January 4, 2017, is not eligible for entry in the Contest, unless the tool submitted incorporates significant new functionality, features, or changes. Contestants must identify any portion of the tool that was publicly available and—within the existing page limits for the Submission—include a narrative description of the new functionality, features, or changes with any such Submission.

    (vii) Submissions must not:

    a. violate applicable law;

    b. depict hatred;

    c. be in bad taste;

    d. denigrate (or be derogatory toward) any person or group of persons or any race, ethnic group, or culture;

    e. threaten a specific community in society, including any specific race, ethnic group, or culture;

    f. incite violence or be likely to incite violence;

    g. contain vulgar or obscene language or excessive violence;

    h. contain pornography, obscenity, or sexual activity; or

    i. disparage the Sponsor.

    (viii) Submissions must be free of malware and other security threats. Contestant agrees that the Sponsor may conduct testing on each Submission to determine whether malware or other security threats may be present.

    (ix) Any Submission that fails to comply with these requirements, as determined by the Sponsor in its sole discretion, may be disqualified.

    (x) Once a Submission has been submitted, Contestant may not access or make any changes or alterations to the Submission.

    (xi) A Contestant may submit only one Submission, as either an individual or a member of a team.

    (xii) By entering a Submission, Contestant represents, warrants, and agrees that the Submission is the original work of the Contestant and complies with the official rules. Contestant further represents, warrants, and agrees that any use of the Submission by the Sponsor and Contest Judges (or any of their respective partners, subsidiaries, and affiliates) as authorized by these official rules, does not:

    a. infringe upon, misappropriate or otherwise violate any intellectual property right or proprietary right including, without limitation, any statutory or common law trademark, copyright or patent, nor any privacy rights, nor any other rights of any person or entity;

    b. constitute or result in any misappropriation or other violation of any person's publicity rights or right of privacy.

    5. Submission Rights

    A. Subject to the licenses described below, any applicable intellectual property rights to a Submission will remain with the Contestant.

    B. By entering a Submission to this Contest, Contestant grants to the Sponsor a non-exclusive, irrevocable, royalty-free and worldwide license to use the Submission, any information and content submitted by the Contestant, and any portion thereof, and to display the tool title, text description and the video through the Contest Web site, during the Contest and after its conclusion. The Contestant agrees that the foregoing constitutes solely a condition of the Contestant's participation in the Contest, and that the Contest is not a request for or acquisition of any property or services or any other matter subject to federal procurement requirements.

    6. Winner Selection and Judging

    A. All Submissions will be judged by an expert panel of judges (the “Contest Judges” or “Judges”) selected by the Sponsor at the Sponsor's sole discretion. The Sponsor reserves the right to substitute or modify the judging panel, or extend or modify the Judging Period, at any time for any reason.

    B. All Contest Judges shall be required to remain fair and impartial. Any Contest Judge may recuse him or herself from judging a Submission if the Contest Judge or the Sponsor considers it inappropriate, for any reason, for the Contest Judge to evaluate a specific Submission or group of Submissions.

    C. A Contestant's likelihood of winning will depend on the number and quality of all of the Submissions, as determined by the Contest Judges using the criteria in these official rules.

    D. The Submissions will be judged in two phases: the “Initial Phase” and the “Final Phase.” For the Initial Phase, Judges will only assess the Contestants' videos and abstracts, without the Detailed Explanation. Only those Contestants judged to be within the top 20 scores for the Initial Phase are eligible to compete in the Final Phase (“Finalists”), where the Detailed Explanations will be judged.

    E. Judges will use the criteria outlined in Section 7, below.

    F. The Sponsor reserves the right to review the Contest Judges' decision and to withhold any Prize if the Sponsor determines, in its sole discretion, that no Submission appropriately or adequately fulfills the stated goals and purposes of the Contest or there is any other procedural, legal, or other reason that the Prize should not be awarded.

    G. The Sponsor reserves the right to change the announcement dates with or without prior notice for any reason. Prizes, however, will not be awarded, and winners will not be named, until the Sponsor verifies eligibility for receipt of each Prize in accordance with Section 9 below. The Sponsor will announce verified winners on or about July 27, 2017, and the results will be made available at the Contest Web site.

    7. Submission Content Requirements

    The Submission must meet other requirements as described in this document, including Sections 4 and 6, stating that Submissions must not include any unauthorized proprietary or copyrighted material (including copyrighted music without permission).

    A. Threshold Solution Criteria.

    Contestants will develop a tool that would, at a minimum, help protect consumers from security vulnerabilities caused by out of date software on IoT devices in their homes. Submissions must provide a technical solution, rather than a policy or legal solution. The tool must work on home IoT devices that currently exist on the market. The tool must protect information it collects both in transit and at rest. The Submission must address how the tool will avoid or mitigate any additional security risks that the tool itself might introduce into the consumer's home by, for example, probing the home network or facilitating software upgrades. Submissions that do not address the tool's security and the other items described in this paragraph as Threshold Solution Criteria will not be considered for the Prize.

    B. Phase-Specific Requirements

    (i) Initial Phase: Abstract and Video

    a. The Abstract. The abstract should include a title for the Submission and a brief explanation of how the tool functions.

    b. The Video. Although the solution requires a tool that should work with multiple IoT devices, the video need only demonstrate how the tool would be used with one (1) IoT device that is likely to be found in consumers' homes. The video must address the Judging Criteria below and: (i) State what the tool is specifically designed to do; (ii) describe the set-up for the demonstration and any assumptions the Contestant has made about the capabilities and limitations of the device(s) for the demonstration; and (iii) explain what impact the tool would have on software of IoT devices beyond what is demonstrated in the video.

    (ii) Final Phase: Detailed Explanation, Abstract and Video

    In the Final Phase, in addition to looking at the abstract and video, the Judges will review the Detailed Explanation. The Detailed Explanation must provide sufficient material so that the Judges can evaluate the tool properly for how well it works, how user-friendly it is, and how scalable it is. The Detailed Explanation may include a detailed description; pseudocode; a description of algorithms and/or formulas; or material (such as diagrams) to show how the tool would function. It should include a description of testing methodology and results of any tests of the tool's effectiveness. It should also discuss a strategy for development and deployment.

    C. The Submission will be assessed using the following Judging Criteria:

    (i) How well does it work? (60 points out of 100 total score)

    a. How well does your Submission address each of these four (4) components?

    (1) Recognizing what IoT devices are operating in the consumer's home. A tool may automatically recognize devices or provide instructions for consumer input.

    (2) Determining what software version is already on those IoT devices. A tool may automatically recognize the software version or provide instructions for consumer input.

    (3) Determining the latest versions of the software that should be on those devices. The Submission must lay out a feasible plan for finding sources of information about what version should be on the device and explain the technical means by which that information would be procured. If the Submission relies upon databases that do not currently exist, the plan for developing those sources must be realistic and feasible.

    (4) Assisting in facilitating updates, to the extent possible. Contestants might rely upon the consumer to take steps or contact the device manufacturer to facilitate the update. If the tool conveys information to a third party, such as a device manufacturer, the tool must also allow for consumer control of the flow of that information.

    b. WILDCARD: If your Submission does not address the four components above, but offers a technical solution to address vulnerabilities caused by unpatched or out-of-date software of IoT devices in the home, the Contestant may demonstrate how that tool would work and argue for the superiority of the tool based on its level of innovation and impact on IoT security in the home. Any such WILDCARD option would also need to meet the criteria set forth in sections 7(ii)-(iii) (user friendliness and scalability requirements).

    c. Whether the Submission includes the four components identified above or is a WILDCARD option, Judges will award more points to Submissions based on the extent to which they identify potential challenges with implementing the tool and describe how the Contestant plans to address those challenges. Judges will also award more points for tools that address both situations where a manufacturer has failed to provide support for the software on a device as well as where the manufacturer does provide support.

    (ii) How user-friendly is your tool? (20 points out of 100 total score)

    a. How easy is your tool for the average consumer, without technical expertise, to set up and use? In assessing how easy the tool would be to use, the Judges will take into consideration whether functions are performed automatically, without action by the consumer.

    b. In analyzing the user-friendliness of the tool, the Judges will also take into consideration how well the tool does the following:

    (1) Displays or conveys 10 information about which devices it has assessed.

    10 The consumer must have a way of knowing what is being assessed, so they do not have a false sense of assurance about a device that was not even evaluated by the tool. This process might also expose unauthorized devices.

    (2) Accurately communicates the risk mitigation provided by the tool (e.g., it should not give the impression that it solves all security problems).

    (3) Allows consumers to control any information being sent to a third party, to the extent that any such information is being sent. This includes making short, but accurate, disclosures about the information flow.

    c. Judges will award more points to Submissions that show the content of any consumer interface and decision points, as well as the methodology and results of user tests (e.g. surveys, focus groups, online user studies) demonstrating that the average consumer would be likely to understand such interface and information it conveys.11

    11 For more information on communicating with consumers, see, e.g., Putting Disclosures to the Test (Sept. 15, 2016), available at https://www.ftc.gov/testingdisclosures.

    (iii) How scalable is your tool? (20 points out of 100 total score)

    a. The Submission must explain how the tool could be used for products other than those addressed specifically in the Submission.

    b. Judges will award more points to Submissions that also explain how the tool would stay up-to-date. Judges will award more points to Submissions demonstrating tools that work on multiple types of devices (e.g., cameras, thermostats, refrigerators), devices from different manufacturers, devices using different protocols (e.g., WiFi, Bluetooth), and both newly released devices and legacy versions.

    (iv) Optional items (up to 10 bonus points)

    a. The Submission may also address other ways to help consumers guard against broader security vulnerabilities in IoT device software in their homes. For example, a tool might:

    (1) Find and facilitate changes to mitigate vulnerabilities in the existing configurations of devices in the home (e.g., determine whether particular IoT devices in the home have hard-coded, factory default or easy-to-guess passwords, and provide specific instructions for consumers to address the issue).

    (2) Provide purchasers of IoT devices an easy way to know whether their new devices include elements already known to be easily compromised before they make a purchase.

    (3) Address the problem of software or firmware updates that have been offered by a developer but not yet incorporated by a device manufacturer.

    (4) Differentiate between security updates and other updates.

    (5) Convey information about levels of urgency of installing patches based on the criticality of a vulnerability;

    (6) Tailor information to specific user groups (e.g., by providing technically sophisticated consumers access to additional information about the nature of the security issues addressed in the update);

    (7) Convey information about product recalls made for other reasons;

    (8) Convey other available information about the security of devices, such as benchmark security scores; 12 or

    12 For example, a tool could use security scoring mechanisms developed by such entities as the Cyber Independent Testing Lab (CITL) (http://cyber-itl.org/blog/).

    (9) Convey information about the type of data collected by the device, how it is used and shared, and any associated privacy policies.

    D. In order to be considered for a Prize, Submissions must receive a score greater than zero in each required category (how well it works, how user-friendly it is, and how scalable it is). If the Contest Judges determine that no Submission satisfies each required category, no one will be deemed eligible for any Prize. In addition, Judges have the discretion to award up to 10 bonus points for optional features.

    E. The Contestant whose Submission earns the highest overall score in the Final Phase will be named the Top Prize Winner identified below in Section 8, if the Contestant satisfies the verification requirements described in Section 9. If the Contestant does not satisfy the verification requirements, the Top Prize may be awarded to the next highest scorer who satisfies the verification requirements, at the Sponsor's discretion.

    F. Up to three (3) Contestants in the Final Phase who meet the Section 9 verification requirements may be awarded the Honorable Mention Prizes—described below in Section 8—at the Sponsor's discretion. The Sponsor has discretion to award Honorable Mention Prizes to Contestants who (1) have the next highest scores in the Final Phase, or (2) have the highest score in any one category because of a significant innovation. If the Contestant does not satisfy the verification requirements, the Honorable Mention Prize may be awarded to the next highest scorer who satisfies the verification requirements, at the Sponsor's discretion.

    G. In the event of a tie between or among two or more Submissions where the Contestants meet the verification requirements, the relevant Prize identified below in Section 8 will be divided equally between the tied Contestants.

    8. Prizes Winner Prize amount Quantity Top Prize Up to US $25,000 Up to 1. Honorable Mention(s) US $3,000 Up to 3.

    A. If no eligible Submissions are entered in the Contest, no Prizes will be awarded. (See also Section 6.F. above.) The Sponsor retains the right to make a Prize substitution (including a non-monetary award) in the event that funding for the Prize or any portion thereof becomes unavailable. No transfer or substitution of a Prize is permitted except at the Sponsor's sole discretion. In the case of a team Prize, it will be the responsibility of the winning team's Representative to inform the Sponsor how to allocate the Prize amongst the team, as the Representative deems it appropriate.

    B. Each Contestant hereby acknowledges and agrees that the relationship between the Contestant and the Sponsor is not a confidential, fiduciary, or other special relationship, and that the Contestant's decision to provide the Contestant's Submission to Sponsor for the purposes of this Contest does not place the Sponsor and its respective agents in a position that is any different from the position held by the members of the general public, except as specifically provided in these official rules.

    C. Winners (including any winning team members) are responsible for reporting and paying all applicable federal, state, and local taxes. It is the sole responsibility of winners of $600 or more to provide information to the Sponsor in order to facilitate receipt of the award, including completing and submitting any tax forms when necessary. It is also the sole responsibility of winners to satisfy any applicable reporting requirements. The Sponsor reserves the right to withhold a portion of the Prize amount to comply with tax laws.

    D. All payments shall be made by electronic funds transfer or other means determined by the Sponsor.

    9. Verification of Eligibility for Receipt of a Prize

    A. All prize awards are subject to Sponsor verification of the winner's identity, eligibility, and participation in the creation of the tool. The Sponsor's decisions are final and binding in all matters related to the Contest. In order to receive a Prize, a Contestant will be required to complete, sign and return to the Sponsor affidavit(s) of eligibility and liability release, or a similar verification document (“Verification Form”). (In the case of a team, the Representative and all participating members must complete, sign and return to the Sponsor the Verification Form.) In addition, social security numbers must be collected from the winner (including any winning team members) pursuant to 31 U.S.C. 7701 in order to issue a payment.

    B. Contestants potentially qualifying for a Prize will be notified and sent the Verification Form using the email address submitted at registration, starting on or about July 20, 2017. The Sponsor reserves the right to change the time period to send the Verification Form without providing any prior notice. In the case of a team, the notification will only be sent to the Representative. If a notification is returned as undeliverable, the Contestant or team may be disqualified at the Sponsor's sole discretion.

    C. At the sole discretion of the Sponsor, a Contestant or team forfeits any Prize if:

    (i) The Contestant fails to provide the Verification Form within ten (10) business days of receipt of the email notification discussed above (or in the case of a team, any team member) fails to provide the Verification Form within ten business days of receipt of the email notification;

    (ii) the Contestant (or in the case of a team, any team member) does not timely communicate with the Sponsor to provide payment information and all other necessary information within ten business days of receiving a request for such information;

    (iii) such individual or team Representative is contacted and refuses the Prize;

    (iv) the Prize is returned as undeliverable; or

    (v) the Submission of the winner, the winner, or any member of a winner's team is disqualified for any reason.

    D. In the event of a disqualification, Sponsor, at its sole discretion, may award the applicable Prize to an alternate Contestant. The disqualification of one (or more) team members at any time for any reason may result in the disqualification of the entire team and of each participating member at the sole discretion of the Sponsor.

    10. Entry Conditions and Release

    A. By registering, each Contestant (including, in the case of a team, all participating members) agree(s):

    (i) To comply with and be bound by these official rules; and

    (ii) that the application of the judging criteria, evaluation of the Submissions, and final selection of the winners is a matter of discretion of the Contest Judges and Sponsor, and that their respective decisions are binding and final in all matters relating to this Contest.

    B. By registering, each Contestant (including, in the case of a team, all participating members) agree(s) to release, indemnify, and hold harmless the Sponsor, and any other individuals or organizations responsible for sponsoring, fulfilling, administering, advertising, or promoting the Contest, including their respective parents, subsidiaries, and affiliated companies, if any, and all of their respective past and present officers, directors, employees, agents and representatives (hereafter the “Released Parties”) from and against any and all claims, expenses, and liabilities (including reasonable attorneys' fees and costs of Submission preparation) arising out of or relating to a Contestant's entry, creation of Submission or entry of a Submission, participation in the Contest, acceptance or use or misuse of the Prize, and the disclosure, broadcast, transmission, performance, exploitation, or use of Submission as authorized or licensed by these official rules. Released claims include all claims whatsoever including, but not limited to (except in cases of willful misconduct): Injury, death, damage, or loss of property, revenue or profits, whether direct, indirect, or consequential, arising from the Contestant's participation in a competition, whether the claim of injury, death, damage, or loss arises through negligence, mistake, or otherwise. This release does not apply to claims against the Sponsor arising out of the unauthorized use or disclosure by the Sponsor of intellectual property, trade secrets, or confidential business information of the Contestant.

    C. Without limiting the foregoing, each Contestant (including, in the case of a team, all participating members) agrees to release all Released Parties of all liability in connection with:

    (i) any incorrect or inaccurate information, whether caused by the Sponsor's or a Contestant's electronic or printing error or by any of the equipment or programming associated with or utilized in the Contest;

    (ii) technical failures of any kind, including, but not limited to, malfunctions, interruptions, or disconnections in phone lines, Internet connectivity, or electronic transmission errors, or network hardware or software or failure of the Contest Web site, or any other platform or tool that Contestants or Contest Judges choose to use;

    (iii) unauthorized human intervention in any part of the entry process or the Contest;

    (iv) technical or human error that may occur in the administration of the Contest or the processing of Submissions; or

    (v) any injury or damage to persons or property that may be caused, directly or indirectly, in whole or in part, from the Contestant's participation in the Contest or receipt or use or misuse of any Prize. If for any reason any Contestant's Submission is confirmed to have been erroneously deleted, lost, or otherwise destroyed or corrupted, the Contestant's sole remedy is to request the opportunity to resubmit its Submission. The request will be addressed at the sole discretion of the Sponsor if the contest submission period is still open.

    D. Based on the subject matter of the Contest, the type of work that it possibly will require, and the low probability that any claims for death, bodily injury, or property damage, or loss could result from Contest participation, the Sponsor determines that Contestants are not required to obtain liability insurance or demonstrate fiscal responsibility in order to participate in this Contest.

    11. Publicity

    Participation in the Contest constitutes consent to the use by the Sponsor, their agents' and any other third parties acting on their behalf, of the Contestant's name (and, as applicable, those of all other members of the team that participated in the Submission), Submission video, and Submission abstract for promotional purposes in any media, worldwide, without further payment or consideration. Furthermore, a Contestant's likeness, photograph, voice, opinions, comments, and hometown and state of residence (and, as applicable, those of all other members of the team that participated in the Submission) may be used for the Sponsor's promotional purposes if the Contestant provides consent. In addition, the Sponsor reserves the right to make any disclosure required by law.

    12. General Conditions

    A. Each Contestant agrees that the Sponsor is vested with the sole authority to interpret and apply these rules.

    B. Sponsor reserves the right, in its sole discretion, to cancel, suspend, or modify the Contest, or any part of it, with or without notice to the Contestants, if any fraud, technical failure, or any other unanticipated factor or factors beyond Sponsor's control impairs the integrity or proper functioning of the Contest, or for any other reason. The Sponsor reserves the right at its sole discretion to disqualify any individual or Contestant that the Sponsor finds to be tampering with the entry process or the operation of the Contest, or to be acting in violation of these official rules or in a manner that is inappropriate, not in the best interests of this Contest, or in violation of any applicable law or regulation.

    C. Any attempt by any person to undermine the proper functioning of the Contest may be a violation of criminal and civil law, and, should such an attempt be made, the Sponsor reserves the right to take proper legal action, including, without limiting, referral to law enforcement, for any illegal or unlawful activities.

    D. The Sponsor's failure to enforce any term of these official rules shall not constitute a waiver of that term. The Sponsor is not responsible for incomplete, late, misdirected, damaged, lost, illegible, or incomprehensible Submissions or for address or email address changes of the Contestants. Proof of sending or submitting is not proof of receipt by Sponsor.

    E. In the event of any discrepancy or inconsistency between the terms and conditions of the official rules and disclosures or other statements contained in any Contest materials, including but not limited to the Contest Web site or point of sale, television, print or online advertising, the terms and conditions of the official rules shall prevail.

    F. The Sponsor reserves the right to amend the terms and conditions of the official rules at any time, including the rights or obligations of the Contestants and the Sponsor. The Sponsor will post the terms and conditions of the amended official rules on the Contest Web site (“Corrective Notice”). As permitted by law, any amendment will become effective at the time the Sponsor posts the amended official rules.

    G. Excluding Submissions, all intellectual property related to this Contest, including but not limited to trademarks, trade-names, logos, designs, promotional materials, Web pages, source codes, drawings, illustrations, slogans, and representations are owned or used under license by the Sponsor. All rights are reserved. Unauthorized copying or use of any copyrighted material or intellectual property without the express written consent of the relevant owner(s) is strictly prohibited.

    H. Should any provision of these official rules be or become illegal or unenforceable under applicable Federal law, such illegality or unenforceability shall leave the remainder of these official rules unaffected and valid. The illegal or unenforceable provision may be replaced by the Sponsor with a valid and enforceable provision that, in the Sponsor's sole judgment, comes closest to and best reflects the Sponsor's intention in a legal and enforceable manner with respect to the invalid or unenforceable provision.

    13. Disputes

    Subject to the release provisions in these official rules, Contestant agrees that:

    A. any and all disputes, claims, and causes of action arising out of or connected with this Contest, any Prizes awarded, the administration of the Contest, the determination of winners, or the construction, validity, interpretation, and enforceability of the official rules shall be resolved individually;

    B. any and all disputes, claims, and causes of action arising out of or connected with this Contest, any Prizes awarded, the administration of the Contest, the determination of winners, or the construction, validity, interpretation, and enforceability of the official rules shall be resolved pursuant to Federal law;

    C. under no circumstances will Contestants be entitled to, and Contestants hereby waive, all rights to claim, any punitive, incidental, and consequential damages and any and all rights to have damages multiplied or otherwise increased.

    14. Privacy

    The Sponsor may collect personal information from the Contestant when he or she enters the Contest. Such personal information is subject to the privacy policy located here: http://www.ftc.gov/site-information/privacy-policy.

    15. Contact Us

    Please visit the Contest Web site for further Contest information and updates.

    Jessica Rich, Director, Bureau of Consumer Protection.
    [FR Doc. 2016-31731 Filed 1-3-17; 8:45 am] BILLING CODE 6750-01-P
    FEDERAL TRADE COMMISSION [File No. 161 0077] C.H. Boehringer Sohn AG & Co. KG; Analysis To Aid Public Comment AGENCY:

    Federal Trade Commission.

    ACTION:

    Proposed Consent Agreement.

    SUMMARY:

    The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent orders—embodied in the consent agreement—that would settle these allegations.

    DATES:

    Comments must be received on or before January 27, 2017.

    ADDRESSES:

    Interested parties may file a comment at https://ftcpublic.commentworks.com/FTC/chboehringersohnagcokgconsent online or on paper, by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write “C.H. Boehringer Sohn AG & Co. KG File No. 1610077—Consent Agreement” on your comment and file your comment online at https://ftcpublic.commentworks.com/FTC/chboehringersohnagcokgconsent by following the instructions on the web-based form. If you prefer to file your comment on paper, write “C.H. Boehringer Sohn AG & Co. KG File No. 1610077—Consent Agreement” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    Michael Barnett (202-326-2362), Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.

    SUPPLEMENTARY INFORMATION:

    Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent orders to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for December 28, 2016), on the World Wide Web, at http://www.ftc.gov/os/actions.shtm.

    You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before January 27, 2017. Write “C.H. Boehringer Sohn AG & Co. KG File No. 1610077—Consent Agreement” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

    Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

    If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).1 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.

    1 In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c), 16 CFR 4.9(c).

    Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/FTC/chboehringersohnagcokgconsent by following the instructions on the web-based form. If this Notice appears at http://www.regulations.gov/#!home, you also may file a comment through that Web site.

    If you file your comment on paper, write “C.H. Boehringer Sohn AG & Co. KG File No. 1610077—Consent Agreement” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC. If possible, submit your paper comment to the Commission by courier or overnight service.

    Visit the Commission Web site at http://www.ftc.gov to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before January 27, 2017. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

    Analysis of Agreement Containing Consent Orders To Aid Public Comment Introduction

    The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) from C.H. Boehringer Sohn AG & Co. KG (“Boehringer Ingelheim”), which is designed to remedy the anticompetitive effects of Boehringer Ingelheim's acquisition of the Merial Animal Health business (“Merial”) from Sanofi. Under the terms of the proposed Decision and Order (“Order”) contained in the Consent Agreement, Boehringer Ingelheim is required to divest its relevant U.S. companion animal vaccine business to Eli Lily and Company, which participates in the animal health industry through its Elanco Animal Health (“Elanco”) division. Boehringer Ingelheim is also required to divest its U.S. Cydectin parasiticide product to Bayer AG (“Bayer”).

    The proposed Consent Agreement has been placed on the public record for thirty days for receipt of comments from interested persons. Comments received during this period will become part of the public record. After thirty days, the Commission will again evaluate the proposed Consent Agreement, along with the comments received, in order to make a final decision as to whether it should withdraw from the proposed Consent Agreement, modify it, or make it final.

    The Transaction

    Pursuant to an Exclusivity Agreement dated December 15, 2015, Boehringer Ingelheim proposes to swap its consumer health care business for Sanofi's Merial animal health business (the “Proposed Acquisition”). In the proposed swap, Boehringer Ingelheim obtains Merial, valued at $13.53 billion, and Sanofi obtains Boehringer Ingelheim's Consumer Health Care business unit, valued at $7.98 billion, as well as cash compensation of $5.54 billion. The Commission alleges in its Complaint that the Proposed Acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, in the U.S. markets for two types of animal health products: (1) Companion animal vaccines—which include various canine, feline, and rabies vaccines—and (2) cattle and sheep parasiticides. The proposed Consent Agreement will remedy the alleged violations by preserving the competition that would otherwise be eliminated by the Proposed Acquisition.

    The Parties

    Headquartered in Germany, Boehringer Ingelheim is one of the world's leading pharmaceutical companies. It manufacturers, researches, develops and markets an array of human and animal health products. The company's animal health division, Boehringer Ingelheim Vetmedica, Inc., is the sixth-largest animal health supplier in the world.

    Sanofi is a multinational pharmaceutical company headquartered in Gentilly, France. The company develops and markets a diverse portfolio of products, including pharmaceuticals, human vaccines, and, through its subsidiary Merial, animal health products. Merial is the fourth-largest animal health supplier in the world.

    The Relevant Products and Structure of the Markets Companion Animal Vaccines

    There are three classes of companion animal vaccines in which to analyze the effects of the Proposed Acquisition: Canine vaccines, feline vaccines, and rabies vaccines. A vaccine is a version of an antigen that triggers an immune response to the antigen but not the disease, causing the animal to develop an immunity that prevents the disease. Only vaccines containing an antigen of a specific virus can provide the desired immunity response to that virus and the corresponding disease. No substitute product immunizes against a disease. Nor is treatment following infection a substitute for the vaccinations at issue. For these reasons, each vaccine containing an antigen to immunize against a particular disease constitutes a relevant market in which to analyze the effects of the acquisition.

    Canine vaccines prevent specific illnesses in dogs. The Proposed Acquisition raises competitive concerns in the markets for seven canine vaccines: Canine distemper virus, canine parvovirus, leptospirosis, canine adenovirus, canine parainfluenza virus, canine coronavirus, and borreliosis (“Lyme disease”). In addition, the proposed transaction raises future competition concerns in the canine vaccine market for Bordetella bronchiseptica bacterium, in which Boehringer Ingelheim currently competes and Merial is the most likely entrant in the near future. The canine vaccine markets are highly concentrated. Boehringer Ingelheim, Merial, Zoetis, Inc. (“Zoetis”), and Merck & Co. (“Merck”) are the only four suppliers offering or likely to offer canine vaccines in the United States. In 2015, Boehringer Ingelheim, Merial, Zoetis and Merck had market shares of approximately 30%, 11%, 35%, and 24%, respectively, of all revenues from canine vaccines sold in the United States and comparable shares in each relevant market, except Bordetella bronchiseptica bacterium, where Merial is the next likely entrant. The Proposed Acquisition would reduce the number of current or likely competitors in each market from four to three.

    Feline vaccines prevent diseases common to cats. The transaction raises competitive concerns in the feline vaccine markets for five diseases: Panleukopenia, calicivirus, viral rhinotracheitis, Chlamydia psittaci bacterium, and feline leukemia. The feline vaccine industry in the United States is highly concentrated with the same four market participants—Boehringer Ingelheim, Merial, Zoetis, and Merck—as the canine vaccine industry. In 2015, these four companies had market shares of approximately 28%, 33%, 16%, and 23%, respectively, of all revenues from feline vaccines sold in the United States and comparable shares in each relevant market. The proposed transaction would combine the two leading feline vaccine suppliers, reducing the number of competitors in each market from four to three.

    The rabies virus, transmitted through bites from infected animals, triggers a fatal neurological condition culminating in paralysis, respiratory failure, and eventual death. Because this fatal disease is transmittable to humans, most U.S. states have mandatory rabies vaccination requirements. Regular vaccination for all animals is the only means of protection, and there are no substitutes for rabies vaccines. All rabies vaccines are approved for use in both dogs and cats, although some are approved for use in additional species as well. The market for the sale of rabies vaccines in the United States is highly concentrated. Boehringer Ingelheim, Merial, Zoetis, and Merck are the only four significant suppliers of rabies vaccines in the United States, with market shares of 10%, 65%, 13%, and 12% of revenues, respectively.

    Cattle and Sheep Parasiticides

    Parasiticides prevent and control outbreaks of parasites such as worms, flies, lice, and ticks.

    Cattle Parasiticides

    Parasiticides are a key part of cattle health care regimens. If left unchecked, parasites reduce milk production in dairy cattle and prevent weight gain in beef cattle. There are two primary types of cattle parasiticides: Macrocyclic lactones, which prevent both internal and external parasites, and benzimidazoles, which prevent only internal parasites. Because macrocyclic lactones reach a much broader spectrum of parasites, other parasiticides, including benzimidazoles, are not viable substitutes.

    Boehringer Ingelheim, Merial, and Zoetis are the three primary participants in the macrocyclic lactone cattle parasiticide market, and the Proposed Acquisition would combine the two most significant competitors. Merial, the market leader, offers three brands: Ivomec, Eprinex, and LongRange. After Merial, Boehringer Ingelheim is the next largest supplier of macrocyclic lactone cattle parasiticides. Boehringer Ingelheim's sole product is Cydectin, a parasiticide that is functionally identical to Ivomec and Eprinex for beef cattle. Zoetis also offers a macrocyclic lactone product, Dectomax, that is similar to the products of Merial and Boehringer Ingelheim. Merial, Boehringer Ingelheim and Zoetis accounted for 45%, 22%, and 17% of revenues, respectively, of U.S. sales in 2015. Beyond these three companies, multiple manufacturers produce generic versions of Merial's Ivomec. Although these generic products are significantly cheaper than the branded products, they have limited competitive significance. Many customers prefer the branded products because the branded product manufacturers offer valuable technical support, field support, and education. In addition, many customers also perceive the generic products to be inferior and unreliable, preferring to pay a higher price for the guaranteed success of branded products.

    Merial and Boehringer Ingelheim are the only two macrocyclic lactone cattle parasiticide suppliers that offer “zero-day milk withhold” products—Cydectin and Eprinex, respectively. The Proposed Acquisition would eliminate the competition between them, effectively leaving dairy cattle customers with a sole supplier.

    Sheep Parasiticides

    Sheep parasiticides are critical for optimizing wool and meat production. Sheep parasiticides utilize the same compounds as cattle parasiticides, but use a different route of administration. Because a sheep's wool and skin prevent the absorption of topical products and the thickness of a sheep's wool makes injections difficult, customers view oral administration as the only viable option for sheep parasiticides. Both macrocyclic lactones and benzimidazoles can be used as sheep parasiticides, but benzimidazoles are not economic substitutes for macrocyclic lactones in most cases because they do not treat external parasites and are less efficacious.

    Merial and Boehringer Ingelheim are the two primary suppliers of macrocyclic lactone sheep parasiticides. Boehringer Ingelheim offers Cydectin Oral Drench and Merial offers Ivomec Oral Drench. Following the Proposed Acquisition, the merged firm would control more than 78% of this market. The other macrocyclic lactone sheep parasiticides are generic versions of the Merial product, which are of limited competitive significance.

    Relevant Geographic Market

    The United States is the relevant geographic market in which to assess the competitive effects of the Proposed Acquisition. The USDA must approve companion animal vaccines before they are sold in the United States. Cattle and sheep parasiticides must be approved by the FDA before being sold in the United States. Thus, products sold outside the United States, but not approved for sale in the United States, are not alternatives for U.S. consumers.

    Entry

    Entry into the U.S. markets for companion animal vaccines and cattle and sheep parasiticides would not be timely, likely or sufficient in magnitude, character and scope to deter or counteract the anticompetitive effects of the Proposed Acquisition. Three major obstacles stand in the way of a prospective entrant into the relevant markets: Lengthy development periods, FDA and USDA approval requirements, and difficulty of establishing a brand name and reputation and convincing veterinarians to prescribe new products.

    Effects of the Acquisition

    The Proposed Acquisition would cause significant competitive harm to consumers in the relevant U.S. markets for companion animal vaccines and cattle and sheep parasiticides by eliminating actual or future, direct, and substantial competition between Boehringer Ingelheim and Merial. The transaction would increase the likelihood that Boehringer Ingelheim will be able to unilaterally exercise market power, increase the likelihood of coordinated interaction between or among suppliers, and increase the likelihood that consumers will pay higher prices.

    The Consent Agreement

    The proposed Consent Agreement effectively remedies the Proposed Acquisition's anticompetitive effects by requiring Boehringer Ingelheim to divest its relevant companion animal vaccine business and certain of its cattle and sheep parasiticides assets to Elanco and Bayer, respectively.

    Under the proposed Order, Boehringer Ingelheim will divest its relevant U.S. rights and interests in its companion animal vaccine business to Elanco no later than ten days after the consummation of the Proposed Acquisition or on the date on which the proposed Order becomes final, whichever is earlier. Similarly, the proposed Order requires Boehringer Ingelheim to divest all of its respective U.S. rights and interests in its parasiticide product, Cydectin, to Bayer. These divestitures include all regulatory approvals, brand names, marketing materials, confidential business information, customer information, and other assets associated with marketing and selling both products. To ensure the divestitures are successful, the proposed Order requires Boehringer Ingelheim to secure all third-party consents and waivers required to permit both buyers to conduct business with the divested assets. Additionally, Elanco and Bayer also will have the right to interview and offer employment to employees associated with the divested businesses.

    Elanco is an experienced supplier in the global animal health industry and has the resources and expertise to replicate Boehringer Ingelheim's role in the companion animal vaccine markets. In 2015, Elanco generated approximately $1 billion in revenue. Elanco currently offers a limited portfolio of companion animal pharmaceutical products such as parasiticides, pain relievers, and dermatological products. Elanco, however, is not a meaningful participant in any of the companion animal vaccines subject to divestiture, and its proposed acquisition of those assets will complement and expand its existing companion animal portfolio. Elanco is well positioned to replicate immediately Boehringer Ingelheim's competitive position in all companion animal vaccine markets.

    Bayer is similarly well qualified to replicate Boehringer Ingelheim's competitive position in the United States with respect to the Cydectin product line. Bayer is currently the fifth-largest animal health company both worldwide and in the United States. Bayer had 2015 worldwide sales of $1.6 billion, of which $595 million derived from its animal health business. Bayer does not currently offer a parasiticide that controls external and internal parasites to cattle and sheep farmers. However, Bayer offers a variety of other products to cattle and sheep farmers, such as ear tags and external parasite control products.

    The Commission has agreed to appoint a Monitor to ensure that Boehringer Ingelheim complies with all of its obligations pursuant to the Consent Agreement and to keep the Commission informed about the status of the transfer of the rights and assets to Elanco and Bayer.

    The Commission's goal in evaluating possible purchasers of divested rights and assets is to maintain the competitive environment that existed prior to the Proposed Acquisition. If the Commission determines that either buyer is not an acceptable acquirer, or that the manner of the divestiture is not acceptable, the proposed Order requires the parties to unwind the sale and then divest the products to another Commission-approved acquirer within six months of the date that the proposed Order becomes final. The proposed Order further allows the Commission to appoint a trustee in the event the parties fail to divest the products.

    The purpose of this analysis is to facilitate public comment on the proposed Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Order or to modify its terms in any way.

    By direction of the Commission.

    April J. Tabor, Acting Secretary.
    [FR Doc. 2016-31848 Filed 1-3-17; 8:45 am] BILLING CODE 6750-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families Notice Designating State Title IV-D Child Support Agencies as “Public Bodies” AGENCY:

    Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services.

    ACTION:

    Notice.

    SUMMARY:

    This notice designates state IV-D child support agencies as public bodies authorized to perform specific functions of the Central Authority under Article 6(3) of the the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Convention).and specifies functions to be performed by the state agencies in relation to applications under the Convention.

    ADDRESSES:

    Interested parties may submit written comments on this notice to the United States Central Authority for International Child Support, Department of Health and Human Services, Office of Child Support Enforcement, 330 C Street SW., 5th Floor, Washington, DC 20201. Comments received will be available for public inspection at this address from 9:00 a.m. to 5:00 p.m. EST, Monday through Friday.

    DATES:

    The Convention will enter into force for the United States on January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    The Division of Policy and Training, Office of Child Support Enforcement, Administration for Children and Families, 330 C Street SW., 5th Floor, Washington, DC 20201.

    SUPPLEMENTARY INFORMATION:

    The President signed the Instrument of Ratification on August 30, 2016, and the United States of America deposited its Instrument of Ratification of the Convention on September 7, 2016. The Convention will enter into force for the United States on January 1, 2017. Section 459A of the Social Security Act (42 U.S.C. 659a) and Executive Order 13752, 81 FR 90181 (Dec. 8, 2016) designate the Department of Health and Human Services as the Central Authority of the United States for purposes of the Convention, and authorize the Secretary of Health and Human Services to perform all lawful acts that may be necessary and proper in order to execute the functions of the Central Authority. Article 6(3) of the Convention authorizes the designation of public bodies to perform specific functions under the Convention, subject to the supervision of the Central Authority. The Executive Order specifically authorizes the designation of the state agencies responsible for implementing an approved State Plan under title IV-D of the Social Security Act, 42 U.S.C. 651 et seq., as public bodies authorized to perform specific functions in relation to applications under the Convention. All states have enacted the Uniform Interstate Family Support Act of 2008 (UIFSA 2008) to enable uniform implementation of the Convention in the United States.

    Under authority delegated by the Secretary for administration of the title IV-D program, I hereby designate the state title IV-D child support agencies as public bodies authorized to perform functions related to applications under the Convention in accordance with UIFSA 2008, title IV-D and title IV-D regulations, and guidance and instructions, subject to the supervision of the federal Office of Child Support Enforcement. Such functions shall include the provision of support enforcement services to applicants under the Convention, including: Transmitting and receiving applications under the Convention; initiating or facilitating the institution of proceedings with respect to applications; establishing paternity and support orders; recognizing, modifying, and enforcing such orders; collecting and distributing payments under such orders; and providing administrative and legal services without cost to applicants.

    Statutory Authority:

    Section 459(a) of the Social Security Act (42 U.S.C. 659(a)

    Dated: December 29, 2016. Mark H. Greenberg, Acting Assistant Secretary for Children and Families.
    [FR Doc. 2016-31895 Filed 1-3-17; 8:45 am] BILLING CODE 4184-42-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-0001] Advisory Committee; Technical Electronic Product Radiation Safety Standards Committee, Renewal AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice; renewal of advisory committee.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing the renewal of the Technical Electronic Product Radiation Safety Standards Committee by the Commissioner of Food and Drugs (the Commissioner). The Commissioner has determined that it is in the public interest to renew the Technical Electronic Product Radiation Safety Standards Committee for an additional 2 years beyond the charter expiration date. The new charter will be in effect until December 24, 2018.

    DATES:

    Authority for the Technical Electronic Product Radiation Safety Standards Committee will expire on December 24, 2016, unless the Commissioner formally determines that renewal is in the public interest.

    FOR FURTHER INFORMATION CONTACT:

    Shanika Craig, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1613, Silver Spring, MD, 20993-0002, 301-796-6639, [email protected]

    SUPPLEMENTARY INFORMATION:

    Pursuant to 41 CFR 102-3.65 and approval by the Department of Health and Human Services pursuant to 45 CFR part 11 and by the General Services Administration, FDA is announcing the renewal of the Technical Electronic Product Radiation Safety Standards Committee. The committee is a non-discretionary Federal advisory committee established to provide advice and consultation to the Commissioner. The Commissioner of Food and Drugs is charged with the administration of the Radiation Control for Health and Safety Act of 1968. This Act creates the Technical Electronic Product Radiation Safety Standards Committee and requires the Commissioner to consult with the Committee before prescribing standards for radiation emissions from electronic products. This Committee provides advice and consultation to the Commissioner of Food and Drugs on the technical feasibility, reasonableness, and practicability of performance standards for electronic products to control the emission of radiation from such products, and may recommend electronic product radiation safety standards to the Commissioner for consideration.

    The Committee shall consist of a core of 15 voting members including the Chair. Members and the Chair are selected by the Commissioner or designee from among authorities knowledgeable in the fields of science or engineering applicable to electronic product radiation safety. Members will be invited to serve for overlapping terms of up to 4 years. Terms of more than two years are contingent upon the renewal of the Committee by appropriate action prior to its expiration. The core of voting members will include five members selected from governmental agencies, including State and Federal Governments, five members from the affected industries, and five members from the general public, of which at least one shall be a representative of organized labor. A quorum shall consist of 10 members, of which at least 3 shall be from the general public, 3 from the government agencies, and 3 from the affected industries.

    Further information regarding the most recent charter and other information can be found at http://www.fda.gov/AdvisoryCommittees/CommitteesMeetingMaterials/Radiation-EmittingProducts/TechnicalElectronicProductRadiationSafetyStandardsCommittee/default.htm. or by contacting the Designated Federal Officer (see FOR FURTHER INFORMATION CONTACT). In light of the fact that no change has been made to the committee name or description of duties, no amendment will be made to 21 CFR 14.100.

    This document is issued under the Federal Advisory Committee Act (5 U.S.C. app.). For general information related to FDA advisory committees, please visit us at http://www.fda.gov/AdvisoryCommittees/default.htm.

    Dated: December 28, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31847 Filed 1-3-17; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-D-4437] In-Use Stability Studies and Associated Labeling Statements for Multiple-Dose Injectable Animal Drug Products; Draft Guidance for Industry; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry (GIF) #242 entitled “In-Use Stability Studies and Associated Labeling Statements for Multiple-Dose Injectable Animal Drug Products.” The purpose of in-use stability testing is to establish a period of time during which a multiple-dose drug product may be used while retaining acceptable quality specifications once the container is opened (e.g., after a container has been needle-punctured). This draft guidance reflects the Agency's current thinking on how to formulate in-use statements, as well as how to design and carry out in-use stability studies to support these in-use statements, for multiple-dose injectable drug products intended for use in animals. This current thinking pertains to both generic drug products and pioneer drug products regardless of whether or not the pioneer reference listed new animal drug (RLNAD) currently has an in-use statement on the labeling.

    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 March 6, 2017.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://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 https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-D-4437 for “In-Use Stability Studies and Associated Labeling Statements for Multiple-Dose Injectable Animal Drug Products.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://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 https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    Submit written requests for single copies of the guidance to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. 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:

    Kevin Rice, Center for Veterinary Medicine (HFV-140), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0680, [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    FDA is announcing the availability of a draft GIF #242 entitled “In-Use Stability Studies and Associated Labeling Statements for Multiple-Dose Injectable Animal Drug Products.” The purpose of in-use stability testing is to establish a period of time during which a multiple-dose drug product may be used while retaining acceptable quality specifications once the container is opened (e.g., after a container has been needle-punctured). This draft guidance reflects the Agency's current thinking on how to formulate in-use statements, as well as how to design and carry out in-use stability studies to support these in-use statements, for multiple-dose injectable drug products intended for use in animals. This current thinking pertains to both generic drug products and pioneer drug products regardless of whether or not the pioneer RLNAD currently has an in-use statement on the labeling.

    II. Significance of Guidance

    This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “In-Use Stability Studies and Associated Labeling Statements for Multiple-Dose Injectable Animal Drug Products.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

    III. Paperwork Reduction Act of 1995

    This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 514 have been approved under OMB control number 0910-0032. The collections of information in 21 CFR part 511 have been approved under OMB control number 0910-0117. The collections of information in sections 512(b) and (n) of the Federal Food, Drug, and Cosmetic Act have been approved under OMB control number 0910-0669.

    IV. Electronic Access

    Persons with access to the Internet may obtain the draft guidance at either http://www.fda.gov/AnimalVeterinary/GuidanceComplianceEnforcement/GuidanceforIndustry/default.htm or https://www.regulations.gov.

    Dated: December 28, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31855 Filed 1-3-17; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-4232] Battery Safety Concerns in Electronic Nicotine Delivery Systems; Public Workshop; Establishment of a Public Docket; Request for Comments AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Public workshop; establishment of public docket; request for data, information, and comments.

    SUMMARY:

    The Food and Drug Administration (FDA) Center for Tobacco Products (CTP) is announcing several actions concerning issues related to batteries used in electronic nicotine delivery systems (ENDS), including electronic cigarettes (e-cigarettes). These actions are intended to give CTP staff an opportunity to hear from the public, including tobacco product manufacturers, importers, researchers, and academic investigators, about ENDS battery safety concerns (e.g., overheating, fire, explosion), risk mitigation, and design parameters. Additionally, FDA is interested in information related to communication to consumers and the general public related to ENDS battery safety concerns. FDA is announcing a public workshop on ENDS batteries and safety hazards. The 2-day public workshop will include presentations and panel discussions about ENDS battery safety concerns as well as how potential safety hazards and risks are communicated to consumers and the general public. In conjunction with the public workshop, FDA is establishing a public docket to gather data and information on hazards and risks associated with the use of batteries in ENDS. Regardless of attendance at the public workshop, interested parties are invited to submit comments, including data and research.

    DATES:

    The public workshop will be held on April 19 and 20, 2017, from 8:30 a.m. to 4:30 p.m. Individuals who wish to attend the public workshop must register by March 17, 2017. Electronic or written comments to the docket will be accepted until May 22, 2017.

    ADDRESSES:

    The public workshop will be held at the FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Entrance for the public meeting participants (non-FDA employees) is through Building 1 where routine security check procedures will be performed. For parking, transportation, security, and information regarding special accommodations due to a disability, please refer to http://www.fda.gov/AboutFDA/WorkingatFDA/BuildingsandFacilities/WhiteOakCampusInformation/ucm241740.htm.

    You may submit comments to the public docket as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://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 https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-N-4232 for “Battery Safety Concerns in Electronic Nicotine Delivery Systems (ENDS) Public Workshop; Establishment of a Public Docket; Request for Comments.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://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 https://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.

    FOR FURTHER INFORMATION CONTACT:

    Joanna Randazzo, Center for Tobacco Products, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 75, Rm. 4411A, Silver Spring, MD 20993-0002, 1-877-287-1373, email: [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    On June 22, 2009, the President signed the Family Smoking Prevention and Tobacco Control Act (Pub. L. 111-31) (Tobacco Control Act), amending the Federal Food, Drug, and Cosmetic Act (the FD&C Act) and giving FDA authority to regulate tobacco product manufacturing, distribution, and marketing. The FD&C Act also gives FDA the ability, through rulemaking, to regulate additional products that meet the legal definition of a tobacco product. On May 10, 2016, FDA published a final rule entitled “Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention and Tobacco Control Act; Restrictions on the Sale and Distribution of Tobacco Products and Required Warning Statements for Tobacco Products” (81 FR 28974) that became effective on August 8, 2016. Under this rule, newly deemed tobacco products, such as ENDS, are now subject to the provisions of the Tobacco Control Act that apply automatically to all products that meet the statutory definition of a tobacco product in section 201(rr) of the FD&C Act.

    FDA has become aware of recent reports of battery-related safety events such as exploding batteries in ENDS, which include e-cigarettes. As a result, FDA is interested in gaining knowledge about ENDS battery safety hazards and controls, including internal and external battery-related factors, specifications, safety, and design parameters of the ENDS apparatus. In addition, FDA is interested in understanding how these risks currently are communicated to consumers, as well as how they may be communicated in the future, in an effort to determine the most effective method to address these problems. FDA is announcing a public workshop and establishing a public docket to gather data and information on hazards and risks associated with the use of batteries in ENDS. Regardless of attendance at the public workshop, interested parties are invited to submit comments, supported by research and data, regarding the topics for discussion at the public workshop (see section II). Information related to workshop presentations and discussion topics, including specific questions to be addressed at the workshop, can be found at http://www.fda.gov/TobaccoProducts/NewsEvents/ucm238308.htm. The information gathered through this public docket may be used by FDA in considering future actions.

    II. Public Workshop on Battery Safety Concerns in ENDS

    FDA is announcing a 2-day public workshop to gather scientific information and stimulate discussion about hazards and risks associated with the use of batteries in ENDS, including e-cigarettes. In particular, the workshop seeks to gather information, including research and data, on: (1) ENDS battery safety concerns (e.g., overheating, fire, explosion, other modes of failure); (2) factors that contribute to ENDS battery failures; and (3) information on ENDS design features and other parameters that may impact the occurrence of these failures. The workshop is intended to better inform FDA about the hazards and risks associated with the use of batteries in ENDS. FDA is seeking input from a broad group of stakeholders, including, but not limited to: Scientific and medical experts; ENDS manufacturers, importers, distributors, wholesalers, and retailers; manufacturers of batteries for ENDS and other consumer products; state, and local government agencies; and other interested stakeholders, such as academic researchers and public health organizations.

    Topics for Discussion: The public workshop will include presentations and panel discussions regarding substantive scientific information, specifically relating to hazards and risks associated with the use of batteries in ENDS, including e-cigarettes. Topics to be addressed include, for example: (1) Factors that contribute to failure of rechargeable and non-rechargeable ENDS batteries resulting in overheating, fire, explosion, or other modes of failure (this may include factors relating to batteries, charging equipment, components and parts such as voltage and temperature controllers or other circuitry, other ENDS design features, user modification of ENDS, and e-liquids), and what influence these factors have on the mode of failure (e.g., battery overheating versus explosion); (2) safety features (e.g., circuit protection, charging safety features) and battery standards that may be applied to ENDS batteries to limit their potential for overheating, fire, explosion, or other mode of failure; (3) changes, improvements, and innovations to battery and ENDS design that would limit the potential for overheating, fire, explosion, or other mode of failure; (4) other public health risks associated with ENDS batteries (e.g., leakage); (5) ENDS design changes that could mitigate public health risks upon battery failure; (6) battery safety information that is communicated to ENDS consumers and the general public; and (7) best practices to effectively communicate potential risks associated with ENDS batteries to consumers and the general public (e.g., via labeling, instructions for use, warnings). Additional information related to workshop presentations and discussions topics, including specific questions, can be found at http://www.fda.gov/TobaccoProducts/NewsEvents/ucm238308.htm.

    Attendance and Registration: To attend the workshop in person or by Webcast, individuals must register by submitting either an electronic or written request no later than March 17, 2017. Please submit electronic requests to register at https://www.surveymonkey.com/r/FDACTP_ENDS_Battery_Workshop. Persons without Internet access may send written requests for registration to Dhanya John, Center for Tobacco Products, Food and Drug Administration, 10903 New Hampshire Ave., Document Control Center, Building 71, Rm. G335, Silver Spring, MD 20993-0002. Requests for registration must include the prospective attendee's name, title, affiliation, address, email address if available, and telephone number. Registration is free and you may register to either attend in-person or view the live Webcast. For registrants with Internet access, confirmation of registration will be emailed to you no later than March 21, 2017. For additional information regarding public workshop location and attendance capacities please refer to http://www.fda.gov/TobaccoProducts/NewsEvents/ucm238308.htm.

    Presenters and Panelists: FDA is interested in gathering scientific information from individuals with a broad range of perspectives on technical topics to be discussed at the workshop. To be considered to serve as a presenter, please provide the following:

    • A brief abstract for each presentation: The abstract should identify the specific topic(s) to be addressed and the amount of time requested.

    • A one-page biosketch that describes and supports your scientific expertise on the specific topic(s) being presented, nature of your experience and research in the scientific field, positions held, and any program development activities.

    Panelists will discuss their scientific knowledge on the questions and presentations in each session. To be considered to serve as a panelist, please provide a one-page biosketch that describes and supports your scientific expertise on the specific topic(s) being presented, nature of your experience and research in the scientific field, positions held, and any program development activities.

    If you are interested in serving as a presenter or a panelist, please submit the above information, along with the topic(s) on which you would like to speak, to [email protected] by February 17, 2017.

    Oral Presentations by Members of the Public: This workshop will include a public comment session. Persons wishing to present during the public comment session must make this request at the time of registration and should identify the topic they wish to address from among those topics under consideration, which are identified in section II of this document. FDA will do its best to accommodate requests to present. FDA urges individuals and organizations with common interests to consolidate or coordinate their comments, and request a single time for a joint presentation. Requesters with Internet access and who have submitted a working email address will receive an email regarding their request to speak during the public comment session by March 21, 2017.

    Transcripts: A transcript of the proceedings will be available after the workshop at http://www.fda.gov/TobaccoProducts/NewsEvents/ucm238308.htm as soon as the official transcript is finalized. It also will be posted to the docket at https://www.regulations.gov.

    III. Additional Opportunities To Speak With FDA

    As is always the case, we welcome entities interested in meeting with FDA to discuss any of these ENDS battery safety topics to contact FDA directly. To facilitate such meetings, you may submit requests for an informal meeting to the attention of the Director, Office of Science, CTP, via email to [email protected] or U.S. mail to the following address: Food and Drug Administration, Center for Tobacco Products, Document Control Center, 10903 New Hampshire Ave., Building 71, Rm. G335, Silver Spring, MD 20993-0002. Please prominently identify your request as “ENDS battery informal meeting.” Please refer to section II for more information regarding submitting comments to the public docket.

    Dated: December 28, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31857 Filed 1-3-17; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-4487] Agency Information Collection Activities; Proposed Collection; Comment Request; Consumer and Healthcare Professional Identification of and Responses to Deceptive Prescription Drug Promotion AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the Federal Register concerning each proposed collection of information and to allow 60 days for public comment in response to the notice. This notice solicits comments on research entitled, “Consumer and Healthcare Professional Identification of and Responses to Deceptive Prescription Drug Promotion.”

    DATES:

    Submit either electronic or written comments on the collection of information by March 6, 2017.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://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 https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-N-4487 for “Consumer and Healthcare Professional Identification of and Responses to Deceptive Prescription Drug Promotion.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://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 m