Vol. 80 Thursday, No. 218 November 12, 2015

Pages 69837–70148

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 80, No. 218

Thursday, November 12, 2015

Agency for International Development Education Department PROPOSED RULES NOTICES Acquisition Regulation; Various Administrative Changes Meetings: and Clauses, 69930–69934 National Advisory Committee on Institutional Quality and Integrity; Correction, 69953–69954 Agriculture Department See Forest Service Employment and Training Administration See Rural Utilities Service NOTICES Federal-State Unemployment Compensation Program: Census Bureau Certifications for 2015 under the Federal Unemployment NOTICES Tax Act, 69982–69983 Agency Information Collection Activities; Proposals, Energy Department Submissions, and Approvals: See Federal Energy Regulatory Commission Census Employment Inquiry, 69936–69937 RULES Energy Conservation Programs: Coast Guard Standards for Walk-in Coolers and Freezers, 69837–69838 RULES PROPOSED RULES Special Local Regulations: Energy Conservation Standards for Commercial Prerinse Recurring Marine Events in the Seventh Coast Guard Spray Valves: District, 69873–69874 Provisional Analysis Tools; Availability, 69888–69896

Commerce Department Environmental Protection Agency See Census Bureau RULES See Foreign-Trade Zones Board Air Quality State Implementation Plans; Approvals and See Industry and Security Bureau Promulgations: See International Trade Administration California; Imperial County Air Pollution Control District, See National Oceanic and Atmospheric Administration 69876–69880 California; Multiple Districts; Prevention of Significant Commodity Futures Trading Commission Deterioration, 69880–69883 NOTICES New Mexico; Nonattainment New Source Review Agency Information Collection Activities; Proposals, Permitting State Implementation Plan Revisions for Submissions, and Approvals: the City of Albuquerque, Bernalillo County, 69874– Annual Report for Chief Compliance Officer of 69876 Registrants, 69947–69948 Allocations of Cross-State Air Pollution Rule Allowances Swap Data Recordkeeping and Reporting Requirements from New Unit Set-Asides for the 2015 Compliance –– Pre-Enactment and Transition Swaps, 69948– Year, 69883–69884 69949 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Community Living Administration California; Mobile Source Regulations, 69915–69925 NOTICES New Mexico, Albuquerque-Bernalillo County; Agency Information Collection Activities; Proposals, Infrastructure and Interstate Transport SIP 2010 Submissions, and Approvals: Sulfur Dioxide National Ambient Air Quality Extension State Plan for Independent Living, etc., 69970 Standards, 69925–69930 Semi-Annual and Final Reporting Requirements for NOTICES Discretionary Grant Programs, 69970–69971 Requests for Nominations: Local Government Advisory Committee, 69961–69962 Defense Department See Navy Department Federal Aviation Administration NOTICES RULES U.S. Court of Appeals for the Armed Forces Proposed Rules Airworthiness Directives: Changes, 69949–69951 Airbus Airplanes, 69846–69852 General Electric Company Turbofan Engines, 69838– Drug Enforcement Administration 69839 RULES The Boeing Company Airplanes, 69839–69846 Schedules of Controlled Substances: PROPOSED RULES Eluxadoline; Placement into Schedule IV, 69861–69864 Airworthiness Directives: NOTICES Airbus Airplanes, 69899–69903 Decisions and Orders: Airbus Defense and Space S.A. (formerly known as Christina B. Paylan, M.D., 69979–69982 Construcciones Aeronauticas, S.A.) Airplanes, Perry County Food and Drug, 70084–70114 69898–69899

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BAE Systems (Operations) Limited Airplanes, 69903– Formations of, Acquisitions by, and Mergers of Savings and 69905 Loan Holding Companies; Correction, 69968–69969 Bombardier, Inc. Airplanes, 69896–69897 NOTICES Federal Retirement Thrift Investment Board Surplus Property Releases: NOTICES Columbia Metropolitan Airport, Columbia, SC, 70060 Senior Executive Service Performance Review Board Member Appointments, 69969–69970 Federal Communications Commission NOTICES Fiscal Service Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 69962–69967 Agency Information Collection Activities; Proposals, Debarments: Submissions, and Approvals: Federal Lifeline Universal Service Support Mechanism, Supporting Statement of Ownership for Overdue United 69966–69967 States Bearer Securities, 70079

Federal Emergency Management Agency Fish and Wildlife Service PROPOSED RULES NOTICES Factors Considered When Evaluating a Governor’s Request Screening Forms and Low-Effect Habitat Conservation for Individual Assistance for a Major Disaster, 70116– Plans: 70143 San Rafael Ranch; Santa Cruz County, AZ, 69977–69979 Federal Energy Regulatory Commission Food and Drug Administration NOTICES Applications: PROPOSED RULES National Fuel Gas Supply Corp., Empire Pipeline, Inc.;, Requests for Information: 69958–69959 Use of the Term ‘‘Natural’’ in the Labeling of Human Combined Filings, 69957, 69959–69961 Food Products, 69905–69909 NOTICES Environmental Assessments; Availability, etc.: Meetings: Transcontinental Gas Pipe Line Company, LLC, Garden Endocrinologic and Metabolic Drugs Advisory State Expansion Project, 69955–69956 Committee, 69971–69972 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Foreign Assets Control Office Cameron Ridge II, LLC, 69961 NOTICES CEP&G LLC, 69956–69957 Blocking or Unblocking of Persons and Properties, 70080 East Coast Power and Gas of New Jersey, LLC, 69954– 69955 Foreign-Trade Zones Board New-Indy Ontario, LLC, 69957–69958 New-Indy Oxnard, LLC, 69958 NOTICES Proposed Blanket Certificate Activities: Applications for Subzone Status: DBM Pipeline, LLC; Withdrawal, 69959 H-J Enterprises, Inc./H-J International, Inc. Foreign-Trade Staff Attendances, 69955 Zone 102, St. Louis,, MO, 69937 Reorganizations under Alternative Site Frameworks: Federal Maritime Commission Foreign-Trade Zone 191, Palmdale, CA, 69937–69938 NOTICES Agreements Filed, 69967 Forest Service NOTICES Federal Motor Carrier Safety Administration Meetings: NOTICES El Dorado County Resource Advisory Committee, 69935 Qualification of Drivers; Exemption Applications: Diabetes Mellitus, 70067–70074 Geological Survey Epilepsy and Seizure Disorders, 70065–70067 NOTICES Vision, 70060–70065 Meetings: National Geospatial Advisory Committee, 69979 Federal Railroad Administration NOTICES Health and Human Services Department Buy America Waivers, 70074–70077 See Community Living Administration See Food and Drug Administration Federal Reserve System See National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Homeland Security Department Submissions, and Approvals, 69968 See Coast Guard Changes in Bank Control: See Federal Emergency Management Agency Acquisitions of Shares of a Bank or Bank Holding See U.S. Citizenship and Immigration Services Company, 69969 NOTICES Formations of, Acquisitions by, and Mergers of Bank Agency Information Collection Activities; Proposals, Holding Companies, 69969 Submissions, and Approvals: Formations of, Acquisitions by, and Mergers of Savings and Infrastructure Protection Gateway Facility Surveys, Loan Holding Companies, 69969 69975–69976

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Housing and Urban Development Department Inseason Orders: RULES Fraser River Sockeye and Pink Salmon Fisheries, 69884– Changes to Accounting Requirements for the Community 69885 Development Block Grants Program, 69864–69873 National Science Foundation Industry and Security Bureau NOTICES RULES Antarctic Conservation Act Permit Applications, 69985– Addition and Removal of Certain Persons and Modification 69986 of Certain Entries to the Entity List, 69852–69861 Navy Department Interior Department NOTICES See Fish and Wildlife Service Environmental Impact Statements; Availability, etc.: See Geological Survey Hawaii-Southern California Training and Testing, 69952– 69953 International Trade Administration Navy Atlantic Fleet Training and Testing, 69951–69952 NOTICES Antidumping or Countervailing Duty Investigations, Orders, Nuclear Regulatory Commission or Reviews: NOTICES Certain Steel Grating from the People’s Republic of Combined Licenses: China, 69940–69941 Nuclear Innovation North America LLC, South Texas Certain Steel Threaded Rod from the People’s Republic of Project, Units 3 and 4, 69986 China, 69938–69940 Meetings: Light-Walled Rectangular Pipe and Tube from Mexico, Advisory Committee on Reactor Safeguards 69941–69942 Subcommittee on Digital I and C; Cancellation, Seamless Refined Copper Pipe and Tube from Mexico, 69986–69987 69944–69945 Steel Wire Garment Hangers from the People’s Republic Occupational Safety and Health Administration of China, 69942–69944 NOTICES Quarterly Update to Annual Listing of Foreign Government Agency Information Collection Activities; Proposals, Subsidies on Articles of Cheese Subject to an In-Quota Submissions, and Approvals, 69984–69985 Rate of Duty, 69945 Requests for Nominations: Postal Regulatory Commission Advisory Committee on Supply Chain Competitiveness, NOTICES 69946–69947 Amendment to Postal Product, 69987–69988 New Postal Products, 69987 Justice Department See Drug Enforcement Administration Presidential Documents PROCLAMATIONS Labor Department Special Observances: See Employment and Training Administration World Freedom Day (Proc. 9365), 70145–70148 See Labor Statistics Bureau See Occupational Safety and Health Administration Rural Utilities Service NOTICES Labor Statistics Bureau Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 69935–69936 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69983–69984 Securities and Exchange Commission NOTICES Legal Services Corporation Applications: NOTICES Forum Funds and Exceed Advisory LLC, 70019–70021 Meetings; Sunshine Act, 69985 Good Hill Partners LP and Good Hill ETF Trust, 70002– 70006 National Institutes of Health Legg Mason Partners Fund Advisor, LLC, et al., 69990– NOTICES 69999 Charter Renewals: Pointbreak Advisers LLC, et al., 70006–70015 National Cancer Institute, 69973 Wildermuth Endowment Strategy Fund and Wildermuth Meetings: Advisory, LLC, 70017–70019 Center for Scientific Review, 69972–69973 Self-Regulatory Organizations; Proposed Rule Changes: National Heart, Lung, and Blood Institute, 69972–69975 BOX Options Exchange LLC, 70000–70002 National Institute of Environmental Health Sciences, Financial Industry Regulatory Authority, Inc., 70016– 69975 70017, 70042–70044 NASDAQ OMX BX, Inc., 69988–69990, 70054–70057 National Oceanic and Atmospheric Administration NASDAQ OMX PHLX LLC, 70036–70039 RULES NASDAQ Stock Market LLC, 70030–70036, 70045–70047 Fisheries off West Coast States: New York Stock Exchange LLC, 70021–70024, 70027– Modifications of the West Coast Commercial and 70030 Recreational Salmon Fisheries; Inseason Actions #37 NYSE Arca, Inc., 70039–70042, 70044–70045, 70051– through #39, 69885–69887 70054

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NYSE MKT, LLC, 70024–70027, 70047–70051 NOTICES Agency Information Collection Activities; Proposals, Susquehanna River Basin Commission Submissions, and Approvals: NOTICES Statement of Accredited Representative in Appealed Projects Approved for Consumptive Uses of Water, 70057– Case, 70081 70060 Meetings: Advisory Committee on Former Prisoners of War, 70080– Transportation Department 70081 See Federal Aviation Administration Advisory Committee on Minority Veterans, 70081 See Federal Motor Carrier Safety Administration See Federal Railroad Administration NOTICES Separate Parts In This Issue Agency Information Collection Activities; Proposals, Submissions, and Approvals, 70078–70079 Agency Information Collection Activities; Proposals, Part II Submissions, and Approvals: Justice Department, Drug Enforcement Administration, Fast Track Generic Clearance for the Collection of 70084–70114 Qualitative Feedback on Agency Service Delivery, 70077–70078 Part III Homeland Security Department, Federal Emergency Treasury Department Management Agency, 70116–70143 See Fiscal Service See Foreign Assets Control Office Part IV Presidential Documents, 70145–70148 U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Reader Aids Submissions, and Approvals: Consult the Reader Aids section at the end of this issue for AABB Accredited Laboratory Testing, Rapid DNA phone numbers, online resources, finding aids, and notice Prototype Accelerated Nuclear DNA Equipment by of recently enacted public laws. NetBio, etc., 69976–69977 To subscribe to the Federal Register Table of Contents Veterans Affairs Department LISTSERV electronic mailing list, go to http:// PROPOSED RULES listserv.access.gpo.gov and select Online mailing list Ensuring a Safe Environment for Community Residential archives, FEDREGTOC-L, Join or leave the list (or change Care Residents, 69909–69915 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Proclamations: 9365...... 70147 10 CFR 431...... 69837 Proposed Rules: 429...... 69888 431...... 69888 14 CFR 39 (3 documents) ...... 69838, 69839, 69846 Proposed Rules: 39 (4 documents) ...... 69896, 69898, 69899, 69903 15 CFR 744...... 69852 21 CFR 1308...... 69861 Proposed Rules: 101...... 69905 24 CFR 91...... 69864 570...... 69864 33 CFR 100...... 69873 38 CFR Proposed Rules: 17...... 69909 40 CFR 52 (3 documents) ...... 69874, 69876, 69880 97...... 69883 Proposed Rules: 52 (2 documents) ...... 69915, 69925 44 CFR Proposed Rules: 206...... 70116 48 CFR Proposed Rules: 722...... 69930 729...... 69930 731...... 69930 752...... 69930 50 CFR 300...... 69884 660...... 69885

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Rules and Regulations Federal Register Vol. 80, No. 218

Thursday, November 12, 2015

This section of the FEDERAL REGISTER Energy, Office of Energy Efficiency and The controlling court order from the contains regulatory documents having general Renewable Energy, Building Fifth Circuit, which was issued on applicability and legal effect, most of which Technologies Program, EE–5B, 1000 August 10, 2015, vacates those six are keyed to and codified in the Code of Independence Avenue SW., standards. These vacated standards Federal Regulations, which is published under Washington, DC 20585–0121. 50 titles pursuant to 44 U.S.C. 1510. relate to (1) the two energy conservation Telephone: (202) 586–6590. Email: standards applicable to multiplex The Code of Federal Regulations is sold by [email protected]. condensing refrigeration systems the Superintendent of Documents. Prices of Mr. Michael Kido, U.S. Department of operating at medium and low new books are listed in the first FEDERAL Energy, Office of the General Counsel, temperatures and (2) the four energy REGISTER issue of each week. GC–33, 1000 Independence Avenue conservation standards applicable to SW., Washington, DC 20585–0121. dedicated condensing refrigeration Telephone: (202) 586–8145. Email: DEPARTMENT OF ENERGY systems operating at low temperatures. [email protected]. See 10 CFR 431.306(e) (codifying these 10 CFR Part 431 SUPPLEMENTARY INFORMATION: DOE six standards, together with four distinct standards applicable to dedicated [Docket Number EERE–2008–BT–STD– published a final rule, 79 FR 32050 0015] (June 3, 2014), that set nineteen energy condensing refrigeration systems conservation standards pertaining to operating at medium temperatures). RIN 1904–AB86 walk-in coolers and walk-in freezers The final rule on review also Energy Conservation Program: Energy (collectively, ‘‘walk-ins’’ or ‘‘WICFs’’). A established thirteen other energy Conservation Standards for Walk-In walk-in, at its basic level, is a conservation standards applicable to Coolers and Freezers refrigerated box, with a total chilled other components of walk-in coolers storage area of less than 3,000 square and walk-in freezers: (1) Four standards AGENCY: Office of Energy Efficiency and feet. The standards promulgated by DOE applicable to dedicated condensing Renewable Energy, Department of pertained to the primary components refrigeration systems operating at Energy. that comprise a walk-in—i.e. panels, medium temperatures; (2) three ACTION: doors, and the refrigeration systems. Final rule; technical standards applicable to panels; and (3) amendment. The panels and doors of a walk-in comprise the box, while the six standards applicable to doors. See 79 SUMMARY: The Energy Policy and refrigeration system provides the FR at 32051–32052 (Table I.1) and Conservation Act of 1975 (EPCA), as cooling air to cool the interior of the 32123–32124 (codified at 10 CFR amended, requires the Department of box. 431.306(a), (c)–(e)). These standards Energy (DOE), among other things, to have not been vacated and remain The Air-Conditioning, Heating and prescribe performance-based energy subject to the June 5, 2017 compliance Refrigeration Institute (‘‘AHRI’’) and conservation standards for walk-in Lennox International, Inc. (a date prescribed by the June 2014 final coolers and walk-in freezers. On June 3, manufacturer of WICF refrigeration rule. 2014, DOE complied with this systems) filed petitions for review of This final rule is not subject to the requirement. Recent litigation regarding DOE’s final rule and DOE’s subsequent requirement to provide prior notice and these standards resulted in a settlement denial of a petition for reconsideration an opportunity for public comment agreement between DOE and the other of the rule with the United States Court pursuant to 5 U.S.C. 553(b)(B). DOE parties to that litigation. Consistent with of Appeals for the Fifth Circuit. Lennox the parties’ settlement agreement, the finds good cause to waive the Int'l, Inc. v. Dep't of Energy, Case No. United States Court of Appeals for the requirement to provide prior notice and 14–60535 (5th Cir.). A number of other Fifth Circuit subsequently vacated six an opportunity for public comment as WICF refrigeration system specific standards set forth in the June such procedure is unnecessary. DOE manufacturers—Rheem Manufacturing 2014 rule. DOE is amending the CFR to must comply with the order of a Federal Co., Heat Transfer Products Group, and reflect the court’s order vacating the six court, and has no discretion to do Hussmann Corp.—along with the Air standards found in DOE’s regulations otherwise. In implementation of that Conditioning Contractors of America (a pertaining to certain refrigeration order, DOE is vacating (1) the two trade association representing systems used in walk-in cooler and energy conservation standards contractors who install WICF walk-in freezer applications. applicable to multiplex condensing refrigeration systems) intervened on the refrigeration systems operating at DATES: This action is effective on petitioners’ behalf, while the Natural medium and low temperatures and (2) November 12, 2015. However, the court Resources Defense Council— order had legal effect immediately upon representing itself, the American the four energy conservation standards its filing on August 10, 2015. Council for an Energy-Efficient applicable to dedicated condensing Compliance with the remaining Economy, and the Texas Ratepayers’ refrigeration systems operating at low standards from the June 2014 final rule Organization to Save Energy— temperatures. Comments suggesting any that were not vacated by the court order intervened on behalf of DOE. As a result other course would serve no useful continues to be required on June 5, of this litigation, a settlement agreement purpose. DOE notes it is also actively 2017. was reached to address, among other engaged in a negotiated rulemaking to FOR FURTHER INFORMATION CONTACT: Ms. things, six of the refrigeration system address the standards for these six Ashley Armstrong, U.S. Department of standards. classes of refrigeration systems.

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Approval of the Office of the Secretary chapter II, subchapter D, of title 10 of § 431.306 Energy conservation standards and their effective dates. The Secretary of Energy has approved the Code of Federal Regulations, as set publication of this final rule. forth below: * * * * * (e) Walk-in cooler and freezer List of Subjects in 10 CFR Part 431 PART 431—ENERGY EFFICIENCY refrigeration systems. All walk-in cooler PROGRAM FOR CERTAIN Administrative practice and and walk-in freezer refrigeration procedure, Confidential business COMMERCIAL AND INDUSTRIAL systems manufactured starting on June information, Energy conservation, EQUIPMENT 5, 2017, must satisfy the following Reporting and recordkeeping standards: requirements. ■ 1. The authority citation for part 431 Issued in Washington, DC, on November 4, continues to read as follows: 2015. Authority: 42 U.S.C. 6291–6317. Kathleen B. Hogan, Deputy Assistant Secretary, Energy Efficiency ■ 2. Section 431.306 is amended by and Renewable Energy. revising paragraph (e) to read as follows: For the reasons stated in the preamble, DOE amends part 431 of

Equations for Class descriptor Class minimum AWEF (Btu/W-h)

Dedicated Condensing, Medium Temperature, Indoor System, <9,000 Btu/h Capacity .. DC.M.I, <9,000 ...... 5.61 Dedicated Condensing, Medium Temperature, Indoor System, ≥9,000 Btu/h Capacity .. DC.M.I, ≥9,000 ...... 5.61 Dedicated Condensing, Medium Temperature, Outdoor System, <9,000 Btu/h Capacity DC.M.O, <9,000 ...... 7.60 Dedicated Condensing, Medium Temperature, Outdoor System, ≥9,000 Btu/h Capacity DC.M.O, ≥9,000 ...... 7.60

[FR Doc. 2015–28728 Filed 11–10–15; 8:45 am] 45215; phone: 513–552–3272; email: Discussion BILLING CODE 6450–01–P [email protected]. You may view this We issued a notice of proposed service information at the FAA, Engine rulemaking (NPRM) to amend 14 CFR & Propeller Directorate, 12 New England part 39 by adding an AD that would DEPARTMENT OF TRANSPORTATION Executive Park, Burlington, MA 01803. apply to all GE GEnx–1B turbofan For information on the availability of Federal Aviation Administration engine models. The NPRM published in this material at the FAA, call 781–238– the Federal Register on June 17, 2015 7125. 14 CFR Part 39 (80 FR 34560). The NPRM was Examining the AD Docket prompted by multiple reports of engine [Docket No. FAA–2015–1658; Directorate oil loss and resultant flight plan Identifier 2015–NE–18–AD; Amendment 39– You may examine the AD docket on diversions. The NPRM proposed to 18320; AD 2015–23–04] the Internet at http:// require removal and replacement of the RIN 2120–AA64 www.regulations.gov by searching for non-conforming ball valve in the oil and locating Docket No. FAA–2015– filler cap. We are issuing this AD to Airworthiness Directives; General 1658; or in person at the Docket correct the unsafe condition on these Electric Company Turbofan Engines Management Facility between 9 a.m. products. AGENCY: Federal Aviation and 5 p.m., Monday through Friday, Comments Administration (FAA), DOT. except Federal holidays. The AD docket We gave the public the opportunity to ACTION: Final rule. contains this AD, the regulatory evaluation, any comments received, and participate in developing this AD. The following presents the comments SUMMARY: We are adopting a new other information. The address for the received on the NPRM (80 FR 34560, airworthiness directive (AD) for all Docket Office (phone: 800–647–5527) is General Electric Company (GE) GEnx– June 17, 2015) and the FAA’s response Document Management Facility, U.S. to each comment. 1B turbofan engine models. This AD Department of Transportation, Docket was prompted by reports of GEnx–1B Operations, M–30, West Building Support for the NPRM engine oil loss. This AD requires Ground Floor, Room W12–140, 1200 removal and replacement of the non- One individual commenter expressed New Jersey Avenue SE., Washington, support for the NPRM (80 FR 34560, conforming ball valve in the oil filler DC 20590. cap. We are issuing this AD to prevent June 17, 2015). loss of engine oil, which could lead to FOR FURTHER INFORMATION CONTACT: Request To Change Applicability failure of one or more engines, loss of Christopher McGuire, Aerospace thrust control, and damage to the Engineer, Engine Certification Office, American Airlines (American) airplane. FAA, Engine & Propeller Directorate, 12 requested that paragraph (c) Applicability be changed. American New England Executive Park, DATES: This AD is effective December stated that the part number and the Burlington, MA 01803; phone: 781– 17, 2015. post-SB markings are located on the oil 238–7120; fax: 781–238–7199; email: ADDRESSES: For service information filler cap scupper not on the oil filler identified in this AD, contact General [email protected]. cap itself. American indicated that this Electric Company, GE Aviation, Room SUPPLEMENTARY INFORMATION: change would improve clarity and 285, 1 Neumann Way, Cincinnati, OH accomplishment of the AD.

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We agree. We revised paragraph (c), substantial direct effect on the States, on (e) Compliance Applicability, of this AD to read: ‘‘This the relationship between the national Comply with this AD within the AD applies to all General Electric government and the States, or on the compliance times specified, unless already Company (GE) GEnx–1B model turbofan distribution of power and done. engines with oil filler cap, part number responsibilities among the various (1) Within 360 cycles in service after the (P/N) 2349M62G01, installed, that do levels of government. effective date of this AD, remove the ball not contain any of the following valve, P/N 2349M68P01, from the affected oil For the reasons discussed above, I filler cap and replace with a part eligible for markings after the P/N on the oil filler certify that this AD: installation. cap scupper: ‘‘P/M BALL PP,’’ or ‘‘RW,’’ (1) Is not a ‘‘significant regulatory (2) Reserved. or ‘‘79–0022.’’ action’’ under Executive Order 12866, (f) Alternative Methods of Compliance Conclusion (2) Is not a ‘‘significant rule’’ under (AMOCs) We reviewed the relevant data, DOT Regulatory Policies and Procedures The Manager, Engine Certification Office, considered the comment received, and (44 FR 11034, February 26, 1979), FAA, may approve AMOCs to this AD. Use determined that air safety and the (3) Will not affect intrastate aviation the procedures found in 14 CFR 39.19 to public interest require adopting this AD in Alaska, and make your request. You may email your request to: [email protected]. with the change described previously. (4) Will not have a significant We determined that this change will not economic impact, positive or negative, (g) Related Information increase the economic burden on any on a substantial number of small entities (1) For more information about this AD, operator or increase the scope of this under the criteria of the Regulatory contact Christopher McGuire, Aerospace AD. Flexibility Act. Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New Related Service Information List of Subjects in 14 CFR Part 39 England Executive Park, Burlington, MA We reviewed GE GEnx–1B Service 01803; phone: 781–238–7120; fax: 781–238– Bulletin (SB) No. 79–0022, Revision 1, Air transportation, Aircraft, Aviation 7199; email: [email protected]. dated May 13, 2015. The SB describes safety, Incorporation by reference, (2) GE GEnx–1B SB No. 79–0022, Revision Safety. 1, dated May 13, 2015, which is not procedures for removing and replacing incorporated by reference in this AD, can be the ball valve in the oil filler cap. Adoption of the Amendment obtained from GE using the contact Costs of Compliance information in paragraph (g)(3) of this AD. Accordingly, under the authority (3) For service information identified in We estimate that this AD affects 86 delegated to me by the Administrator, this AD, contact General Electric Company, engines installed on airplanes of U.S. the FAA amends 14 CFR part 39 as GE Aviation, Room 285, 1 Neumann Way, registry. We also estimate that it will follows: Cincinnati, OH 45215; phone: 513–552–3272; take about 1 hour per engine to comply email: [email protected]. with this AD. The average labor rate is PART 39—AIRWORTHINESS (4) You may view this service information $85 per hour. Required parts cost about DIRECTIVES at the FAA, Engine & Propeller Directorate, $11 per engine. Based on these figures, 12 New England Executive Park, Burlington, ■ 1. The authority citation for part 39 MA. For information on the availability of we estimate the cost of the AD to U.S. this material at the FAA, call 781–238–7125. operators to be $8,256. continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. Issued in Burlington, Massachusetts, on Authority for This Rulemaking November 4, 2015. Title 49 of the United States Code § 39.13 [Amended] Carlos Pestana, Acting Directorate Manager, Engine & specifies the FAA’s authority to issue ■ 2. The FAA amends § 39.13 by adding rules on aviation safety. Subtitle I, Propeller Directorate, Aircraft Certification the following new airworthiness Service. section 106, describes the authority of directive (AD): the FAA Administrator. Subtitle VII: [FR Doc. 2015–28747 Filed 11–10–15; 8:45 am] Aviation Programs, describes in more 2015–23–04 General Electric Company: BILLING CODE 4910–13–P detail the scope of the Agency’s Amendment 39–18320; Docket No. FAA–2015–1658; Directorate Identifier authority. 2015–NE–18–AD. We are issuing this rulemaking under DEPARTMENT OF TRANSPORTATION the authority described in Subtitle VII, (a) Effective Date Federal Aviation Administration Part A, Subpart III, Section 44701: This AD is effective December 17, 2015. ‘‘General requirements.’’ Under that (b) Affected ADs 14 CFR Part 39 section, Congress charges the FAA with None. promoting safe flight of civil aircraft in [Docket No. FAA–2014–0454; Directorate air commerce by prescribing regulations (c) Applicability Identifier 2013–NM–138–AD; Amendment for practices, methods, and procedures This AD applies to all General Electric 39–18298; AD 2015–21–06] the Administrator finds necessary for Company (GE) GEnx–1B model turbofan RIN 2120–AA64 safety in air commerce. This regulation engines with oil filler cap, part number (P/ is within the scope of that authority N) 2349M62G01, installed, that do not Airworthiness Directives; The Boeing because it addresses an unsafe condition contain any of the following markings after Company Airplanes that is likely to exist or develop on the P/N on the oil filler cap scupper: ‘‘P/M products identified in this rulemaking BALL PP,’’ or ‘‘RW,’’ or ‘‘79–0022.’’ AGENCY: Federal Aviation action. (d) Unsafe Condition Administration (FAA), DOT. Regulatory Findings This AD was prompted by reports of ACTION: Final rule. GEnx–1B engine oil loss. We are issuing this This AD will not have federalism AD to prevent loss of engine oil, which could SUMMARY: We are superseding implications under Executive Order lead to failure of one or more engines, loss Airworthiness Directive (AD) 2002–07– 13132. This AD will not have a of thrust control, and damage to the airplane. 08 for certain The Boeing Company

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Model 737 airplanes. AD 2002–07–08 contains this AD, the regulatory July 23, 2014) and the FAA’s response required repetitive inspections for evaluation, any comments received, and to each comment. cracking of the lower skin at the lower other information. The address for the Request To Identify New Inspection row of fasteners in the lap joints of the Docket Office (phone: 800–647–5527) is Locations fuselage; repair of any cracking found; Docket Management Facility, U.S. modification of the fuselage lap joints at Department of Transportation, Docket Boeing requested that we revise the certain locations, which terminated the Operations, M–30, West Building preamble of the NPRM (79 FR 42710, repetitive inspections of the modified Ground Floor, Room W12–140, 1200 July 23, 2014), by adding references to areas; and replacement of a certain New Jersey Avenue SE., Washington, new inspection locations on the preventive modification with an DC 20590. window belt skin panels. Boeing improved modification. This new AD FOR FURTHER INFORMATION CONTACT: pointed out that the NPRM preamble adds repetitive inspections for cracking Jennifer Tsakoumakis, Aerospace defined structure that has been found to at certain window corner fastener holes, Engineer, Airframe Branch, ANM–120L, crack since release of AD 2002–07–08, Amendment 39–12702 (67 FR 17917, a preventive modification, and repair if FAA, Los Angeles Aircraft Certification April 12, 2002). Boeing also indicated necessary. This AD was prompted by Office (ACO), 3960 Paramount that Boeing Service Bulletin 737– the FAA’s determination that certain Boulevard, Lakewood, CA 90712–4137; 53A1177, Revision 7, dated June 14, modifications of the fuselage lap joints phone: 562–627–5264; fax: 562–627– 2013, provides inspections for skin do not provide an adequate level of 5210; email: Jennifer.Tsakoumakis@ cracking at nine additional fastener safety, and the subsequent discovery of faa.gov. cracks in additional fastener locations in holes in the corners of certain passenger SUPPLEMENTARY INFORMATION: the window belt skin panels, adjacent windows from what is mandated by AD stringers, and window frames in Discussion 2002–07–08. We agree that clarification is locations outside the previous We issued a notice of proposed necessary. We have added the inspection area. We are issuing this AD rulemaking (NPRM) to amend 14 CFR description of the new inspection to detect and correct fatigue cracking of part 39 to supersede AD 2002–07–08, locations in the SUMMARY of this final the fuselage lap joints and window belt Amendment 39–12702 (67 FR 17917, rule accordingly. The unspecified skin panels, which could result in April 12, 2002). AD 2002–07–08 applied inspection areas were accounted for in reduced structural integrity and sudden to certain The Boeing Company Model paragraph (p) of the proposed AD (79 FR decompression of the airplane. 737 airplanes. The NPRM published in 42710, July 23, 2014), which is retained DATES: This AD is effective December the Federal Register on July 23, 2014 in this AD. 17, 2015. (79 FR 42710). The NPRM was The Director of the Federal Register prompted by the FAA’s determination Request To Remove Post Repair/ approved the incorporation by reference that certain modifications of the Modification Requirements of a certain publication listed in this AD fuselage lap joints do not provide an Boeing requested that we revise the as of December 17, 2015. adequate level of safety, and the NPRM (79 FR 42710, July 23, 2014) to The Director of the Federal Register subsequent discovery of cracks in remove the ‘‘post-repair/alteration and approved the incorporation by reference additional fastener locations in the butt joint repetitive inspections’’ of certain other publications listed in window belt skin panels, adjacent requirement as specified in paragraph this AD as of May 17, 2002 (67 FR stringers and window frames in (r) of the proposed AD. Boeing pointed 17917, April 12, 2002). locations outside the previous out that one of the proposed actions, ADDRESSES: For service information inspection area. The NPRM proposed to ‘‘post-repair/alteration and butt joint identified in this AD, contact Boeing continue to require repetitive repetitive inspections,’’ defined in Commercial Airplanes, Attention: Data inspections for cracking of the lower paragraph (r) of the proposed AD, refers & Services Management, P.O. Box 3707, skin at the lower row of fasteners in the to damage-tolerance-based structural MC 2H–65, Seattle, WA 98124–2207; lap joints of the fuselage; repair of any post-repair/post-alteration inspections. telephone 206–544–5000, extension 1; cracking found; modification of the Boeing also stated that the inspections fax 206–766–5680; Internet https:// fuselage lap joints at certain locations, are provided in the service bulletin for www.myboeingfleet.com. You may view which would terminate the repetitive operators’ use to comply with the this referenced service information at inspections of the modified areas; and operational requirements of 14 CFR part the FAA, Transport Airplane replacement of a certain preventive 121.1109 and Part 129.109 and, Directorate, 1601 Lind Avenue SW., modification with an improved therefore, the inspections do not need to Renton, WA. For information on the modification. The NPRM also proposed be mandated separately in the NPRM. availability of this material at the FAA, to require repetitive inspections for We agree with the request. As Boeing call 425–227–1221. It is also available cracking at certain window corner stated, the inspections that were on the Internet at http:// fastener holes, a preventive specified in paragraph (r) of the www.regulations.gov by searching for modification, and repair if necessary. proposed AD (79 FR 42710, July 23, and locating Docket No. FAA–2014– We are issuing this AD to detect and 2014) may be used in support of 0454. correct fatigue cracking of the fuselage compliance with section 121.1109(c)(2) lap joints and window belt skin panels, or 129.109(b)(2) of the Federal Aviation Examining the AD Docket which could result in reduced structural Regulations (14 CFR 121.1109(c)(2) or You may examine the AD docket on integrity and sudden decompression of 129.109(b)(2)). However, this AD does the Internet at http:// the airplane. not require those post-modification www.regulations.gov by searching for inspections. We have therefore removed and locating Docket No. FAA–2014– Comments paragraph (r) of the proposed AD and 0454; or in person at the Docket We gave the public the opportunity to redesignated subsequent paragraphs Management Facility between 9 a.m. participate in developing this AD. The accordingly. We have also revised the and 5 p.m., Monday through Friday, following presents the comments SUMMARY of this final rule to remove except Federal holidays. The AD docket received on the NPRM (79 FR 42710, reference to the inspections.

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Request To Reference Related AD Request for New Exception 2014) specifically directed operators to contact the FAA for instructions when Boeing requested that we clarify the Boeing requested that we clarify paragraph (m) of the proposed AD (79 the service information specified to ‘‘Difference Between the Proposed AD contact Boeing. We revised paragraph and the Service Information’’ section of FR 42710, July 23, 2014), to include an exception. Boeing indicated that Boeing (m) of this AD to refer to paragraph (t) the NPRM (79 FR 42710, July 23, 2014), of this AD, which provides directions to by adding a reference to AD 2002–07– Service Bulletin 737–53A1177, Revision 7, dated June 14, 2013, added an request approval of an alternative 11, Amendment 39–12705 (67 FR method of compliance (AMOC). 17931, April 12, 2002), for Model 737 optional window belt skin panel airplanes, line numbers 1 through 291 replacement as terminating action for Request To Remove Reference to inclusive. Boeing pointed out that the the S–10 and S–14 lap joint inspections Paragraphs (m) and (n) of the Proposed and for the window corner inspections ‘‘Difference Between the Proposed AD AD (79 FR 42710, July 23, 2014) on Model 737–300 and 737–500 and the Service Information’’ section of Boeing requested that we clarify airplanes. Boeing also stated that the NPRM (79 FR 42710, July 23, 2014) paragraph (o) of the proposed AD (79 FR paragraph (q) of the proposed AD defined the applicability of the NPRM 42710, July 23, 2014), by removing addressed the optional terminating as Model 737 airplanes, line numbers references to paragraphs (m) and (n) of action, and that follow-on inspections 292 through 2565 inclusive, and the proposed AD. Boeing indicated that are also necessary for the optional explained that Model 737 airplanes, line paragraph (o) of the proposed AD window belt skin panel replacement, numbers 1 through 291 inclusive, have addresses repair of crack damage and and paragraph (q) of the proposed AD been addressed by AD 2003–23–03, references PART II of the should be added as an exception to Amendment 39–13367 (68 FR 64980, Accomplishment Instructions of Boeing paragraph (m) of the proposed AD. Service Bulletin SB 737–53A1177, November 18, 2003). Boeing also We disagree with the request to indicated that AD 2002–07–11, Revision 7, dated June 14, 2013. Boeing include an exception. Paragraph (q) of also stated that PART II of Boeing Amendment 39–12705 (67 FR 17931, this AD is an optional action and April 12, 2002), addresses Model 737 Service Bulletin SB 737–53A1177, terminates only paragraph (g) of this Revision 7, dated June 14, 2013, airplanes line numbers 1 through 291 AD. If an operator chooses to use the inclusive, and mandates the actions provides instructions for repair of cracks modification option in paragraph (q) of found in the lower skin of the lower row defined in Boeing Service Bulletin 737– this AD to do the repair required by 53A1177, Revision 6, dated May 31, of the production lap joint, which could paragraph (g) of this AD, the be found by the inspections defined in 2001. requirements of paragraph (m) of this paragraphs (i), (j), and (k) of the Although the ‘‘Difference Between the AD have not been terminated, and those proposed AD. Boeing pointed out that Proposed AD and the Service inspections must be accomplished. We cracks found by the inspections in Information’’ section of the NPRM (79 have not changed this AD regarding this paragraphs (m) and (n) of the proposed FR 42710, July 23, 2014) is not restated issue. AD are addressed individually by the in this final rule, we agree with the Request for Additional Instruction same paragraphs respectively (with commenter’s clarification of the changes to paragraph (m) of the applicability. Paragraph (c) of this AD is Boeing requested that we clarify proposed AD, as discussed in the retained as proposed in the NPRM, and paragraph (m) of the proposed AD (79 previous comment); therefore, repair of no change has been made to this AD FR 42710, July 23, 2014), to include any crack found during the inspections regarding this issue. instruction for any crack found by the in paragraphs (m) and (n) of the inspections. Boeing stated that proposed AD should not be included in Request for Additional Exception paragraph (m) of the proposed AD paragraph (o) of the proposed AD. contains follow-on inspections of the Boeing requested that we clarify We agree with the request to revise lap joint modification, which are paragraph (g) of the proposed AD (79 FR paragraph (o) of this AD (79 FR 42710, contained in the Compliance and 42710, July 23, 2014), to include an July 23, 2014) to remove references to Accomplishment Instructions of Boeing additional exception. Boeing pointed paragraphs (m) and (n) of the AD, for the Service Bulletin 737–53A1177, Revision out that paragraph (g) of the proposed reasons provided by the commenter. We 7, dated June 14, 2013. Boeing also AD provided an exception for paragraph revised paragraph (o) of this AD stated that if any crack is found during (h) of the proposed AD to address lap accordingly. the follow-on inspections, the joint modification (repair) instructions Compliance section of Boeing Service Request To Revise Paragraph (q)(1) of for certain lap joint areas on 737–200 Bulletin 737–53A1177, Revision 7, the Proposed AD (79 FR 42710, July 23, and 737–200C airplanes. Boeing also dated June 14, 2013, instructs operators 2014) indicated that paragraph (q)(2) of the to contact Boeing for repair instructions; Boeing requested that we clarify proposed AD addresses an optional therefore, reference to paragraph (s)(2) paragraph (q)(1) of the proposed AD (79 terminating action, window belt of the proposed AD should be added to FR 42710, July 23, 2014), by revising the replacement for 737–300 and 737–500 paragraph (m) of the proposed AD. wording for consistency with paragraph airplanes, for the lap joint modification. We agree with the request to include (q)(2) of the proposed AD, adding Boeing also stated that paragraph (q)(2) instruction for any crack found by the references to inspections in paragraph of the proposed AD should be included inspections. The instructions for repair (n) of the proposed AD that are as an exception for the lap joint were inadvertently omitted in paragraph terminated by the actions in paragraph modification (repair) defined in (m) of AD 2002–07–08, Amendment 39– (q)(2) of the proposed AD, and adding paragraph (g) of the proposed AD. 12702 (67 FR 17917, April 12, 2002). wording to limit the number of window We agree with the request for an The associated service information inspections that can be terminated by additional exception. We revised recommended that this repair be done the replacement panel. Boeing pointed paragraph (g) of this AD to include a by contacting Boeing for instructions. out that paragraphs (q)(1) and (q)(2) of reference to paragraph (q)(2) of this AD However paragraph (s)(2) of the the proposed AD address the same as an exception. proposed AD (79 FR 42710, July 23, action, replacement of window belt skin

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panels. Boeing also pointed out that the There is a direct AMOC connection paragraphs have been redesignated inspections in paragraph (n) of the between the window belt skin panel accordingly. proposed AD, Retained Repetitive HFEC replacement and the inspections Conclusion Inspections of the Window Corners, can required by paragraphs (g) and (i) of this also be terminated by replacement of the AD. However, we have added new We reviewed the relevant data, window belt panel and therefore, paragraph (q)(3) of this AD to explain considered the comments received, and wording should be added to paragraph that the skin panel replacement determined that air safety and the (q)(1) of the proposed AD to ensure terminates the specified inspections public interest require adopting this AD inspections would only be terminated at required by paragraphs (g) and (i) of AD with the changes described previously window corners common to the 2013–09–01, Amendment 39–17442 (78 and minor editorial changes. We have replaced panel. FR 27001, May 9, 2013), for the replaced determined that these minor changes: We partially agree. We agree to skin panel only. • Are consistent with the intent that reword paragraph (q)(1) of this AD was proposed in the NPRM (79 FR because consistent language makes the Request To Change FAA Contact Information 42710, July 23, 2014) for correcting the AD easier to read, and replacement of a unsafe condition; and panel will terminate the inspections Boeing requested that we clarify • Do not add any additional burden only for the panel that is replaced. We paragraphs (t)(1) and (t)(2) of the upon the public than was already disagree to add references to inspections proposed AD (79 FR 42710, July 23, proposed in the NPRM (79 FR 42710, in paragraph (n) of this AD, as Boeing 2014), by revising the wording to July 23, 2014). proposed. Paragraph (q)(1) of this AD reference the Manager of the Los We also determined that these terminates the actions required by Angeles ACO instead of the Manager of changes will not increase the economic paragraph (p) of this AD, and doing the the Seattle ACO. Boeing indicated that burden on any operator or increase the actions required by paragraph (p) of this responsibility for the 737 Classic models scope of this AD. AD terminates the inspections required (which include the airplanes affected by by paragraph (n) of this AD. this AD) has been transferred from the Related Service Information Under 1 CFR Part 51 Request To Revise Paragraph (q)(2) of Seattle ACO to the Los Angeles ACO the Proposed AD (79 FR 42710, July 23, and that authority for approval of Boeing has issued Service Bulletin 2014) AMOCs for the proposed AD should be 737–53A1177, Revision 7, dated June changed from the Manager, Seattle ACO, Boeing requested that we clarify 14, 2013. The service information to the Manager, Los Angeles ACO. paragraph (q)(2) of the proposed AD (79 procedures for repetitive inspections for FR 42710, July 23, 2014), by revising the We infer that Boeing requested that cracking of the lower skin at the lower wording to show that the optional we clarify paragraphs (t)(1) and (t)(3) of row of fasteners in the lap joints of the window belt skin panel replacement the proposed AD (79 FR 42710, July 23, fuselage; repair of any cracking found; terminates the lap joint lower row 2014). modification of the fuselage lap joints at inspections of AD 2013–09–01, We agree with the request, and have certain locations to terminate the Amendment 39–17442 (78 FR 27001, revised paragraphs (t)(1) and (t)(3) of repetitive inspections of the modified May 9, 2013), rather than terminating this AD as requested, and included the areas; replacement of a certain the lap joint modification. Boeing following in paragraph (t)(1) of this AD: preventive modification with an pointed out that paragraph (q)(2) of the 9-ANM-LAACO-AMOC- improved modification; repetitive proposed AD addresses an optional [email protected]. We also revised inspections for cracking at certain window belt skin panel replacement. paragraph (u) of this AD to include the window corner fastener holes; a Boeing also indicated that the skin appropriate contact information. preventive modification; and repair. This service information is reasonably panel replacement was included in Additional Changes to This Final Rule Boeing Service Bulletin SB 737– available because the interested parties 53A1177, Revision 7, dated June 14, We have included a new paragraph (s) have access to it through their normal 2013, to provide an option for operators in this AD to provide credit for course of business or by the means to terminate the lap joint lower row accomplishing lap joint repair before the identified in the ADDRESSES section of inspections, and was mandated by effective date of this AD using Boeing this AD. Service Bulletin 737–53A1177, Revision paragraphs (g) and (i) of AD 2013–09– Costs of Compliance 01, in lieu of the lap joint modification 4, dated September 2, 1999; Boeing which is addressed by paragraph (g) of Service Bulletin 737–53A1177, Revision We estimate that this AD affects 247 the proposed AD. 5, dated February 15, 2001; or Boeing airplanes of U.S. registry. We estimate We agree with the request for the Service Bulletin 737–53A1177, Revision the following costs to comply with this reasons provided by the commenter. 6, dated May 31, 2001. The subsequent AD:

ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Retained lap joint modifica- 4,650 work-hours × $85 Up to $204,000 ...... $599,250 ...... $95,280,750 (estimated tion. per hour = $395,250. 159 airplanes). Retained lap joint inspec- 90 work-hours × $85 per $0 ...... $7,650 per inspection $1,889,550 per inspection tion. hour = $7,650 per in- cycle. cycle. spection cycle. Retained post-NACA in- 110 work-hours × $85 per $0 ...... $9,350 per inspection $308,550 per inspection spection. hour = $9,350 per in- cycle. cycle (estimated 33 air- spection cycle. planes).

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ESTIMATED COSTS—Continued

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Retained window corner in- 36 work-hours × $85 per $0 ...... $3,060 per inspection $755,820 per inspection spection. hour = $3,060 per in- cycle. cycle. spection cycle. New window corner in- 108 work-hours × $85 per $0 ...... $9,180 per inspection $2,267,460 per inspection spection. hour = $9,180 per in- cycle. cycle. spection cycle.

ESTIMATED COSTS: OPTIONAL ACTIONS

Cost per Action Labor cost Parts cost product

New preventive modification ...... 134 work-hours × $85 per hour = $11,390 ...... $0 $11,390

We estimate the following costs to do will be required based on the results of determining the number of aircraft that any necessary corrective actions that the inspection. We have no way of might need these corrective actions:

ON-CONDITION COSTS

Cost per Action Labor cost Parts cost product

Window corner repair, per corner ...... 9 work-hours × $85 per hour = $765 ...... (1) $765 1Parts fabricated by operator; cost unknown.

The cost estimate figures discussed that is likely to exist or develop on the FAA amends 14 CFR part 39 as above are based on assumptions that no products identified in this rulemaking follows: operator has yet accomplished any of action. the actions required by this AD, and that PART 39—AIRWORTHINESS Regulatory Findings no operator will accomplish those DIRECTIVES actions in the future if this AD is not We have determined that this AD will adopted. However, we have been not have federalism implications under ■ 1. The authority citation for part 39 advised that the lap joint modification Executive Order 13132. This AD will continues to read as follows: has already been installed on some not have a substantial direct effect on Authority: 49 U.S.C. 106(g), 40113, 44701. affected airplanes. Therefore, based on the States, on the relationship between the current number of U.S.-registered the national government and the States, § 39.13 [Amended] airplanes below the threshold of 50,000 or on the distribution of power and total flight cycles, the future economic responsibilities among the various ■ 2. The FAA amends § 39.13 by cost impact of this AD on U.S. operators levels of government. removing Airworthiness Directive (AD) is expected to be less than the cost For the reasons discussed above, I 2002–07–08, Amendment 39–12702 (67 impact figure indicated above. certify that this AD: FR 17917, April 12, 2002), and adding Authority for This Rulemaking (1) Is not a ‘‘significant regulatory the following new AD: action’’ under Executive Order 12866, Title 49 of the United States Code 2015–21–06 The Boeing Company: specifies the FAA’s authority to issue (2) Is not a ‘‘significant rule’’ under Amendment 39–18298; Docket No. rules on aviation safety. Subtitle I, DOT Regulatory Policies and Procedures FAA–2014–0454; Directorate Identifier Section 106, describes the authority of (44 FR 11034, February 26, 1979), 2013–NM–138–AD. the FAA Administrator. Subtitle VII, (3) Will not affect intrastate aviation (a) Effective Date in Alaska, and Aviation Programs, describes in more This AD is effective December 17, 2015. detail the scope of the Agency’s (4) Will not have a significant authority. economic impact, positive or negative, (b) Affected ADs We are issuing this rulemaking under on a substantial number of small entities This AD replaces AD 2002–07–08, the authority described in Subtitle VII, under the criteria of the Regulatory Amendment 39–12702 (67 FR 17917, April Part A, Subpart III, Section 44701, Flexibility Act. 12, 2002). Certain provisions of this AD affect ‘‘General requirements.’’ Under that List of Subjects in 14 CFR Part 39 certain requirements of AD 2013–09–01, section, Congress charges the FAA with Amendment 39–17442 (78 FR 27001, May 9, promoting safe flight of civil aircraft in Air transportation, Aircraft, Aviation 2013). air commerce by prescribing regulations safety, Incorporation by reference, for practices, methods, and procedures Safety. (c) Applicability the Administrator finds necessary for This AD applies to The Boeing Company Adoption of the Amendment safety in air commerce. This regulation Model 737–200, –200C, –300, –400, and –500 is within the scope of that authority Accordingly, under the authority series airplanes, certificated in any category, because it addresses an unsafe condition delegated to me by the Administrator, line numbers 292 through 2565 inclusive.

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(d) Subject (3) For airplanes that have accumulated dated May 31, 2001; or as identified in Air Transport Association (ATA) of 45,000 total flight cycles or more, but fewer Figures 50 through 64 of the America Code 53, Fuselage. than 65,000 total flight cycles as of May 17, Accomplishment Instructions of Boeing 2002 (the effective date of AD 2002–07–08, Service Bulletin 737–53A1177, Revision 7, (e) Unsafe Condition Amendment 39–12702 (67 FR 17917, April dated June 14, 2013. Do the inspection per This AD was prompted by an evaluation by 12, 2002)): Within 5,000 flight cycles after Boeing Service Bulletin 737–53A1177, the design approval holder (DAH) indicating May 17, 2002. Revision 6, dated May 31, 2001; or Boeing that certain fuselage lap joints are subject to (4) For airplanes that have accumulated Service Bulletin 737–53A1177, Revision 7, widespread fatigue damage (WFD). We are less than 45,000 total flight cycles as of May dated June 14, 2013. As of the effective date issuing this AD to detect and correct fatigue 17, 2002 (the effective date of AD 2002–07– of this AD, only Boeing Service Bulletin 737– cracking of the fuselage lap joints, which 08, Amendment 39–12702 (67 FR 17917, 53A1177, Revision 7, dated June 14, 2013, could result in reduced structural integrity April 12, 2002)): Before the accumulation of may be used to do the actions required by and sudden decompression of the airplane. 50,000 total flight cycles. this paragraph. Repeat the inspection after (5) Notwithstanding the times specified in that at intervals not to exceed 5,000 flight (f) Compliance paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) of cycles. Comply with this AD within the this AD, for airplanes on which the compliance times specified, unless already ‘‘Preventive Change’’ (NACA modification) (j) Retained Post-NACA Modification done. has been accomplished per PART III of the Inspections—Crown Areas (g) Retained Lap Joint Modification Accomplishment Instructions of Boeing Alert This paragraph restates the actions (Repair)—Crown Areas Service Bulletin 737–53A1177, Revision 1, required by paragraph (j) of AD 2002–07–08, dated September 19, 1996; Revision 2, dated Amendment 39–12702 (67 FR 17917, April This paragraph restates the actions July 24, 1997; or Revision 3, dated September 12, 2002), with revised service information. required by paragraph (g) of AD 2002–07–08, 18, 1997: Within 18,000 flight cycles after For airplanes that have the ‘‘Preventive Amendment 39–12702 (67 FR 17917, April accomplishment of the NACA modification. Change’’ (NACA modification) of the crown 12, 2002), with revised service information. lap joint stringers (‘‘Crown Laps’’) done per Except as provided by paragraphs (h) and (h) Retained Lap Joint Modification for PART III of the Accomplishment Instructions (q)(2) of this AD: Install the lap joint repair Certain Airplanes of Boeing Alert Service Bulletin 737– as specified in Part 1.E.1. (‘‘Compliance’’) of This paragraph restates the requirements of 53A1177, Revision 1, dated September 19, Boeing Service Bulletin 737–53A1177, paragraph (h) of AD 2002–07–08, 1996; Boeing Service Bulletin 737–53A1177, Revision 4, dated September 2, 1999; Boeing Amendment 39–12702 (67 FR 17917, April Revision 2, dated July 24, 1997; or Boeing Service Bulletin 737–53A1177, Revision 5, 12, 2002), with revised service information Service Bulletin 737–53A1177, Revision 3, dated February 15, 2001; or Boeing Service and revised airplane groups. dated September 18, 1997: Within 12,000 Bulletin 737–53A1177, Revision 6, dated (1) For airplanes identified as Groups 3 and flight cycles after accomplishment of the May 31, 2001; per PART III or IV (‘‘Lap Joint 5 in Boeing Service Bulletin 737–53A1177, NACA modification, or within 750 flight Repair’’), as applicable; or Boeing Service Bulletin 737–53A1177, Revision 7, dated Revision 6, dated May 31, 2001: Install the cycles after May 17, 2002 (the effective date June 14, 2013; per PART III, IV, VI, or VII lap joint repair at stringers 4R and 10R, as of AD 2002–07–08), whichever is later, do (‘‘Lap Joint Modification (Repair)’’), as specified in Part 1.E.1. (‘‘Compliance’’) of either an external or internal LFEC applicable, of the Accomplishment Boeing Service Bulletin 737–53A1177, inspection to find cracking and corrosion as Instructions of the applicable service Revision 6, dated May 31, 2001, at the time specified in Part 1.E.4.a. (‘‘Compliance’’) of bulletin; at the time specified in paragraph specified in paragraph (g)(1), (g)(2), (g)(3), Boeing Service Bulletin 737–53A1177, (g)(1), (g)(2), (g)(3), (g)(4), or (g)(5) of this AD, (g)(4), or (g)(5) of this AD, as applicable, Revision 6, dated May 31, 2001; or Boeing as applicable. Accomplishment of this repair using a method approved in accordance with Service Bulletin 737–53A1177, Revision 7, terminates the repetitive inspections required the procedures specified in paragraph (t) of dated June 14, 2013; per PART I by paragraph (j) of this AD. As of the effective this AD. (‘‘Inspection’’) of the Accomplishment date of this AD, only Boeing Service Bulletin (2) For airplanes identified in Groups 6, 7, Instructions of Boeing Service Bulletin 737– 737–53A1177, Revision 7, dated June 14, and 8 in Boeing Service Bulletin 737– 53A1177, Revision 6, dated May 31, 2001; or 2013, may be used to do the actions required 53A1177, Revision 7, dated June 14, 2013: Boeing Service Bulletin 737–53A1177, by this paragraph. A lap splice modification Install the lap joint repair at stringers 4R and Revision 7, dated June 14, 2013. The external (repair) done in accordance with the 10R, in accordance with the Accomplishment and internal LFEC inspections are specified Accomplishment Instructions of Boeing Instructions of Boeing Service Bulletin 737– in Figures 8 and 9, respectively, of Boeing Service Bulletin 737–53A1177, Revision 7, 53A1177, Revision 7, dated June 14, 2013, at Service Bulletin 737–53A1177, Revision 6, dated June 14, 2013, terminates the the time specified in paragraph (g)(1), (g)(2), dated May 31, 2001; and Boeing Service inspections required by paragraphs (g) and (i) (g)(3), (g)(4), or (g)(5) of this AD, as Bulletin 737–53A1177, Revision 7, dated of AD 2013–09–01, Amendment 39–17442 applicable, unless previously accomplished June 14, 2013. As of the effective date of this (78 FR 27001, May 9, 2013), for the modified as specified in paragraph (h)(1) of this AD. AD, only Boeing Service Bulletin 737– 53A1177, Revision 7, dated June 14, 2013, (repaired) area only. (i) Retained Repetitive Low Frequency Eddy (1) For airplanes that have accumulated may be used to do the actions required by Current (LFEC) Inspections—Outside Crown 70,000 total flight cycles or more as of May this paragraph. Areas 17, 2002 (the effective date of AD 2002–07– (1) If the external inspection is done: 08, Amendment 39–12702 (67 FR 17917, This paragraph restates the actions Repeat the inspection after that at intervals April 12, 2002)): Within 600 flight cycles required by paragraph (i) of AD 2002–07–08, not to exceed 1,500 flight cycles until after May 17, 2002, do the lap joint repair. Amendment 39–12702 (67 FR 17917, April accomplishment of the lap joint repair (2) For airplanes that have accumulated 12, 2002), with revised service information. required by paragraph (g) of this AD. 65,000 total flight cycles or more, but fewer Before the accumulation of 70,000 total flight (2) If the internal inspection is done: than 70,000 total flight cycles as of May 17, cycles, or within 2,500 flight cycles after May Repeat the inspection after that at intervals 2002 (the effective date of AD 2002–07–08, 17, 2002 (the effective date of AD 2002–07– not to exceed 4,500 flight cycles until Amendment 39–12702 (67 FR 17917, April 08), whichever comes later: Do an LFEC accomplishment of the lap joint repair 12, 2002)): Do the repair at the later of the inspection to find cracking of the lap joints required by paragraph (g) of this AD. times specified in paragraphs (g)(2)(i) and of the fuselage, as specified in Part 1.E.2. (g)(2)(ii) of this AD. (‘‘Compliance’’) of Boeing Service Bulletin (k) Retained Post-NACA Modification (i) Before the accumulation of 70,000 total 737–53A1177, Revision 6, dated May 31, Inspections—Outside Crown Areas flight cycles. 2001; or Boeing Service Bulletin 737– This paragraph restates the actions (ii) Within 600 flight cycles after May 17, 53A1177, Revision 7, dated June 14, 2013; required by paragraph (k) of AD 2002–07–08, 2002 (the effective date of AD 2002–07–08, and as identified in Figures 2 through 6 of Amendment 39–12702 (67 FR 17917, April Amendment 39–12702 (67 FR 17917, April the Accomplishment Instructions of Boeing 12, 2002), with revised service information. 12, 2002)). Service Bulletin 737–53A1177, Revision 6, For airplanes that have the ‘‘Preventive

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Change’’ (NACA modification) outside the 1.E.7. (‘‘Compliance’’) of Boeing Service (‘‘Crack Repair’’) of the Accomplishment crown areas done per PART III of the Bulletin 737–53A1177, Revision 6, dated Instructions of Boeing Service Bulletin 737– Accomplishment Instructions of Boeing Alert May 31, 2001; or Boeing Service Bulletin 53A1177, Revision 6, dated May 31, 2001; or Service Bulletin 737–53A1177, Revision 1, 737–53A1177, Revision 7, dated June 14, Boeing Service Bulletin 737–53A1177, dated September 19, 1996; Boeing Service 2013; to find cracking of the lap joint repair, Revision 7, dated June 14, 2013; except as Bulletin 737–53A1177, Revision 2, dated July per PART I (‘‘Inspection’’) of the required by paragraph (r)(2) of this AD. As of 24, 1997; or Boeing Service Bulletin 737– Accomplishment Instructions of Boeing the effective date of this AD, only Boeing 53A1177, Revision 3, dated September 18, Service Bulletin 737–53A1177, Revision 6, Service Bulletin 737–53A1177, Revision 7, 1997: Before the accumulation of 20,000 dated May 31, 2001; or Boeing Service dated June 14, 2013, may be used to do the flight cycles after accomplishment of the Bulletin 737–53A1177, Revision 7, dated actions required by this paragraph. NACA modification, or within 750 flight June 14, 2013. Repair any crack found before cycles after May 17, 2002 (the effective date further flight using a method approved in (p) New Inspections, Repair, and Preventive of AD 2002–07–08), whichever is later, do accordance with the procedures specified in Modification either an external or internal LFEC paragraph (t) of this AD. The internal LFEC For airplanes identified as Groups 2 inspection to find cracking and corrosion as inspection is specified in Figure 9 of Boeing through 28 in Boeing Service Bulletin 737– specified in Part 1.E.4.b. (‘‘Compliance’’) of Service Bulletin 737–53A1177, Revision 6, 53A1177, Revision 7, dated June 14, 2013: At Boeing Service Bulletin 737–53A1177, dated May 31, 2001; and Boeing Service the applicable times specified in tables 8, 9, Revision 6, dated May 31, 2001; or Boeing Bulletin 737–53A1177, Revision 7, dated 10, and 11 of paragraph 1.E.10, Service Bulletin 737–53A1177, Revision 7, June 14, 2013. As of the effective date of this ‘‘Compliance,’’ of Boeing Service Bulletin dated June 14, 2013; per PART I AD, only Boeing Service Bulletin 737– 737–53A1177, Revision 7, dated June 14, (‘‘Inspection’’) of the Accomplishment 53A1177, Revision 7, dated June 14, 2013, 2013, except as required by paragraph (r)(1) Instructions of Boeing Service Bulletin 737– may be used to do the actions required by of this AD, do a surface HFEC inspection for 53A1177, Revision 6, dated May 31, 2001; or this paragraph. Repeat the inspection after cracking at the applicable window corner Boeing Service Bulletin 737–53A1177, that at intervals not to exceed 2,800 flight fastener holes, and do a preventive Revision 7, dated June 14, 2013. The external cycles. modification, as applicable, in accordance and internal LFEC inspections are specified with Part V of the Accomplishment in Figures 8 and 9, respectively, of Boeing (n) Retained Repetitive High Frequency Instructions of Boeing Service Bulletin 737– Service Bulletin 737–53A1177, Revision 6, Eddy Current (HFEC) Inspections—Window 53A1177, Revision 7, dated June 14, 2013, dated May 31, 2001; and Boeing Service Corners except as required by paragraph (r)(2) of this Bulletin 737–53A1177, Revision 7, dated This paragraph restates the actions AD. Repair any crack found before further June 14, 2013. As of the effective date of this required by paragraph (n) of AD 2002–07–08, flight, in accordance with Part V of the AD, only Boeing Service Bulletin 737– Amendment 39–12702 (67 FR 17917, April Accomplishment Instructions of Boeing 53A1177, Revision 7, dated June 14, 2013, 12, 2002), with revised service information. Service Bulletin 737–53A1177, Revision 7, may be used to do the actions required by For airplanes having line numbers 520 dated June 14, 2013, except as required by this paragraph. through 2565 inclusive: Before the paragraph (r)(2) of this AD. Repeat the (1) If the external inspection is done: accumulation of 50,000 total flight cycles, or applicable inspection thereafter at the Repeat the external inspection after that at within 2,250 flight cycles after May 17, 2002 applicable times specified in tables 8, 9, 10, intervals not to exceed 1,500 flight cycles. (the effective date of AD 2002–07–08), and 11 of paragraph 1.E.10, ‘‘Compliance,’’ of (2) If the internal inspection is done: whichever comes later, do an HFEC Boeing Service Bulletin 737–53A1177, Repeat the internal inspection after that at inspection to find cracking as specified in Revision 7, dated June 14, 2013. intervals not to exceed 4,500 flight cycles. Part 1.E.10 (‘‘Compliance’’) of Boeing Service Accomplishment of the initial inspection Bulletin 737–53A1177, Revision 6, dated specified in this paragraph terminates the (l) Retained Modification of Tear Strap May 31, 2001, or Boeing Service Bulletin repetitive inspection requirements of Splice Straps 737–53A1177, Revision 7, dated June 14, paragraph (n) of this AD. Accomplishment of This paragraph restates the actions 2013; per PART V (‘‘Window Corner Fastener the preventive modification specified in this required by paragraph (l) of AD 2002–07–08, Hole Cracking, Inspection and Repair’’) of the paragraph terminates the repetitive Amendment 39–12702 (67 FR 17917, April Accomplishment Instructions of Boeing inspection requirements of this paragraph for 12, 2002), with revised service information. Service Bulletin 737–53A1177, Revision 6, the applicable corner fastener locations For airplanes that have the ‘‘lap joint repair,’’ dated May 31, 2001; or Boeing Service specified in Boeing Service Bulletin 737– as specified in Part IV of the Bulletin 737–53A1177, Revision 7, dated 53A1177, Revision 7, dated June 14, 2013. Accomplishment Instructions of Boeing Alert June 14, 2013. Repeat the inspection after Service Bulletin 737–53A1177, Revision 2, that at intervals not to exceed 4,500 flight (q) Optional Terminating Action dated July 24, 1997; or Revision 3, dated cycles, until the initial actions required by (1) Replacement of the skin panel as September 18, 1997: Within 45,000 flight paragraph (p) of this AD have been done. specified in Part VIII or Part IX, as applicable, cycles after accomplishment of this lap joint Accomplishment of the modification (which of the Accomplishment Instructions of repair, modify the splice straps per Figures includes removing and discarding fasteners, Boeing Service Bulletin 737–53A1177, 10, 11, and 12 of the Accomplishment oversizing fastener holes, and installing Revision 7, dated June 14, 2013, terminates Instructions of Boeing Service Bulletin 737– rivets or Hi-Lok fasteners, as applicable), per the repetitive inspections at the window 53A1177, Revision 6, dated May 31, 2001; or PART V of the Accomplishment Instructions corners specified in paragraph (p) of this AD Boeing Service Bulletin 737–53A1177, of Boeing Service Bulletin 737–53A1177, for the windows common to the replaced Revision 7, dated June 14, 2013. As of the Revision 5, dated February 15, 2001; or panel only. effective date of this AD, only Boeing Service Boeing Service Bulletin 737–53A1177, (2) Replacement of the skin panel as Bulletin 737–53A1177, Revision 7, dated Revision 6, dated May 31, 2001; or Boeing specified in Part VIII or Part IX, as applicable, June 14, 2013, may be used to do the actions Service Bulletin 737–53A1177, Revision 7, of the Accomplishment Instructions of required by this paragraph. dated June 14, 2013; constitutes terminating Boeing Service Bulletin 737–53A1177, action for the inspections required by this Revision 7, dated June 14, 2013, terminates (m) Retained Follow-On LFEC Inspections paragraph. the lap joint modification required by This paragraph restates the actions paragraph (g) of this AD for the S–10 and S– required by paragraph (m) of AD 2002–07– (o) Retained Crack Repair 14 lap joints common to the replaced panel 08, Amendment 39–12702 (67 FR 17917, This paragraph restates the actions only. April 12, 2002), with revised service required by paragraph (d) of AD 2002–07–08, (3) Replacement of the skin panels as information. Within 45,000 flight cycles after Amendment 39–12702 (67 FR 17917, April specified in Part VIII or Part IX, as applicable, accomplishment of the lap joint repair 12, 2002), with revised service information. of the Accomplishment Instructions of required by paragraph (g) or (h) of this AD, If any crack is found during any inspection Boeing Service Bulletin 737–53A1177, as applicable: Do either an external or required by paragraph (i), (j), or (k) of this Revision 7, dated June 14, 2013, terminates internal LFEC inspection as specified in Part AD: Before further flight, repair per PART II the inspections required by paragraphs (g)

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and (i) of AD 2013–09–01, Amendment 39– (2) Before using any approved AMOC, Issued in Renton, Washington, on October 17442 (78 FR 27001, May 9, 2013), for the notify your appropriate principal inspector, 11, 2015. replaced skin panel only. or lacking a principal inspector, the manager Jeffrey E. Duven, (r) Exceptions to Service Information of the local flight standards district office/ Manager, Transport Airplane Directorate, Specifications certificate holding district office. Aircraft Certification Service. (3) An AMOC that provides an acceptable [FR Doc. 2015–26616 Filed 11–10–15; 8:45 am] (1) Where Boeing Service Bulletin 737– level of safety may be used for any repair 53A1177, Revision 7, dated June 14, 2013, required by this AD if it is approved by the BILLING CODE 4910–13–P specifies a compliance time ‘‘after the Boeing Commercial Airplanes Organization Revision 7 date of this service bulletin,’’ this Designation Authorization (ODA) that has AD requires compliance within the specified DEPARTMENT OF TRANSPORTATION compliance time after the effective date of been authorized by the Manager, Los Angeles this AD. ACO, to make those findings. For a repair Federal Aviation Administration (2) Where Boeing Service Bulletin 737– method to be approved, the repair must meet the certification basis of the airplane, and the 53A1177, Revision 6, dated May 31, 2001; 14 CFR Part 39 and Boeing Service Bulletin 737–53A1177, approval must specifically refer to this AD. Revision 7, dated June 14, 2013; specify to (4) AMOCs approved for AD 2002–07–08, [Docket No. FAA–2015–2461; Directorate contact Boeing for certain procedures: Do the Amendment 39–12702 (67 FR 17917, April Identifier 2013–NM–202–AD; Amendment specified actions before further flight using a 12, 2002), are approved as AMOCs for the 39–18310; AD 2015–22–05] method approved in accordance with the corresponding provisions of this AD. procedures specified in paragraph (t) of this RIN 2120–AA64 AD. (u) Related Information (3) Where Boeing Service Bulletin 737– (1) For more information about this AD, Airworthiness Directives; Airbus 53A1177, Revision 6, dated May 31, 2001; contact Jennifer Tsakoumakis, Aerospace Airplanes and Boeing Service Bulletin 737–53A1177, Engineer, Airframe Branch, ANM–120L, AGENCY: Federal Aviation Revision 7, dated June 14, 2013; include the FAA, Los Angeles Aircraft Certification Administration (FAA), Department of phrase ‘‘or is Boeing or FAA approved,’’ this Office (ACO), 3960 Paramount Boulevard, Transportation (DOT). AD requires the ‘‘Boeing Approval’’ to be Lakewood, CA 90712–4137; phone: 562–627– requested in accordance with the procedures 5264; fax: 562–627–5210; email: ACTION: Final rule. specified in paragraph (t) of this AD. [email protected]. SUMMARY: We are superseding (2) Service information identified in this (s) Credit for Previous Actions Airworthiness Directive (AD) 2009–18– AD that is not incorporated by reference is (1) This paragraph provides credit for the available at the addresses specified in 15, for all Airbus Model A300, A310, actions required by paragraph (g) of this AD, paragraphs (v)(3) and (v)(4) of this AD. and A300 B4–600, B4–600R, and F4– if those actions were performed before the 600R series airplanes, and Model A300 effective date of this AD using the applicable (v) Material Incorporated by Reference C4–605R Variant F airplanes service information specified in paragraphs (s)(1)(i), (s)(1)(ii), and (s)(1)(iii) of this AD, (1) The Director of the Federal Register (collectively called Model A300–600 which were incorporated by reference in AD approved the incorporation by reference series airplanes). AD 2009–18–15 2002–07–08, Amendment 39–12702 (67 FR (IBR) of the service information listed in this required revising the Airworthiness 17917, April 12, 2002). paragraph under 5 U.S.C. 552(a) and 1 CFR Limitations section (ALS) of the (i) Boeing Service Bulletin 737–53A1177, part 51. Instructions for Continued Revision 4, dated September 2, 1999. (2) You must use this service information Airworthiness (ICA) to require (ii) Boeing Service Bulletin 737–53A1177, as applicable to do the actions required by additional life limits and/or Revision 5, dated February 15, 2001, which this AD, unless the AD specifies otherwise. replacements for certain main landing (i) Boeing Service Bulletin 737–53A1177, continues to be incorporated by reference in gear and nose landing gear components. this AD. Revision 7, dated June 14, 2013. (iii) Boeing Service Bulletin 737–53A1177, (ii) Reserved. This new AD requires revising the Revision 6, dated May 31, 2001, which (3) The following service information was maintenance or inspection program to continues to be incorporated by reference in approved for IBR on May 17, 2002 (67 FR incorporate new maintenance this AD. 17917, April 12, 2002). requirements and airworthiness (2) This paragraph provides credit for the (i) Boeing Service Bulletin 737–53A1177, limitations. This AD was prompted by actions required by paragraphs (i) through (o) Revision 5, dated February 15, 2001. a determination that existing of this AD, if those actions were performed (ii) Boeing Service Bulletin 737–53A1177, maintenance requirements and before the effective date of this AD using Revision 6, dated May 31, 2001. airworthiness limitations are inadequate Boeing Service Bulletin 737–53A1177, (4) For Boeing service information to ensure the structural integrity of the Revision 6, dated May 31, 2001, which was identified in this AD, contact Boeing airplane. We are issuing this AD to incorporated by reference in AD 2002–07–08, Commercial Airplanes, Attention: Data & Amendment 39–12702 (67 FR 17917, April prevent failure of certain system Services Management, P.O. Box 3707, MC components, which could result in 12, 2002) and continues to be incorporated 2H–65, Seattle, WA 98124–2207; telephone by reference in this AD. 206–544–5000, extension 1; fax 206–766– reduced structural integrity of the airplane. (t) Alternative Methods of Compliance 5680; Internet https:// (AMOCs) www.myboeingfleet.com. DATES: This AD becomes effective (1) The Manager, Los Angeles Aircraft (5) You may view this service information December 17, 2015. Certification Office (ACO), FAA, has the at FAA, Transport Airplane Directorate, 1601 The Director of the Federal Register authority to approve AMOCs for this AD, if Lind Avenue SW., Renton, WA. For approved the incorporation by reference requested using the procedures found in 14 information on the availability of this of certain publications listed in this AD CFR 39.19. In accordance with 14 CFR 39.19, material at the FAA, call 425–227–1221. as of December 17, 2015. send your request to your principal inspector (6) You may view this service information The Director of the Federal Register or local Flight Standards District Office, as that is incorporated by reference at the approved the incorporation by reference National Archives and Records appropriate. If sending information directly of certain other publications listed in Administration (NARA). For information on to the manager of the ACO, send it to the this AD as of October 27, 2009 (74 FR attention of the person identified in the availability of this material at NARA, call paragraph (u)(1) of this AD. Information may 202–741–6030, or go to: http:// 48143, September 22, 2009). be emailed to: 9-ANM-LAACO-AMOC- www.archives.gov/federal-register/cfr/ibr- ADDRESSES: You may examine the AD [email protected]. locations.html. docket on the Internet at http://

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www.regulations.gov/#!docketDetail;D= European Aviation Safety Agency (EASA). • For Model A300 B4–600, B4–600R, FAA-2015-2461; or in person at the EASA AD 2007–0092 [http:// and F4–600R series airplanes, and ad.easa.europa.eu/blob/easa_ad_2007_ Docket Management Facility, U.S. _ Model A300 C4–605R Variant F Department of Transportation, Docket 0092.pdf/AD 2007-0092] [which corresponds to FAA AD 2009–06–06, Amendment 39– airplanes (collectively called Model Operations, M–30, West Building 15842 (74 FR 12228, March 24, 2009)] was A300–600 series airplanes): Part 1, ‘‘Safe Ground Floor, Room W12–140, 1200 issued to require compliance to the Life Airworthiness Limitation Items,’’ New Jersey Avenue SE., Washington, requirements as specified in these Revision 01, dated September 5, 2013, DC. documents. of the Airbus Model A300–600 For service information identified in The revision 02 of Airbus A310 and Airbus Airworthiness Limitations Section. this AD, contact Airbus SAS, A300–600 ALS Part 4 documents introduces • For Model A310 series airplanes: Airworthiness Office—EAW, 1 Rond more restrictive maintenance requirements Part 1, ‘‘Safe Life Airworthiness Point Maurice Bellonte, 31707 Blagnac and/or airworthiness limitations. Failure to comply with the instructions of ALS Part 4 Limitation Items,’’ Revision 01, dated Cedex, France; telephone +33 5 61 93 36 could result in an unsafe condition [reduced September 5, 2013, of the Airbus Model 96; fax +33 5 61 93 44 51; email structural integrity of the airplane.] A310 Airworthiness Limitations [email protected]; For the reasons described above, this new Section. Internet http://www.airbus.com. You [EASA] AD retains the requirements of EASA may view this referenced service AD 2007–0092, which is superseded, and This service information is reasonably information at the FAA, Transport requires the implementation of the new or available because the interested parties Airplane Directorate, 1601 Lind Avenue more restrictive maintenance requirements have access to it through their normal SW., Renton, WA. For information on and/or airworthiness limitations as specified course of business, or by the means in Airbus A310 ALS Part 4, Revision 02, or identified in the ADDRESSES section of the availability of this material at the Airbus A300–600 ALS Part 4, Revision 02, as FAA, call 425–227–1221. It is also applicable to aeroplane type/model. this AD. available on the Internet at http:// Costs of Compliance www.regulations.gov by searching for You may examine the MCAI in the AD docket on the Internet at http:// and locating Docket No. FAA–2015– We estimate that this AD affects 177 2461. www.regulations.gov/#!document Detail;D=FAA-2015-2461-0002. airplanes of U.S. registry. FOR FURTHER INFORMATION CONTACT: Dan The retained ALS revision required by Comments Rodina, Aerospace Engineer, AD 2009–18–15, Amendment 39–16011 International Branch, ANM–116, We gave the public the opportunity to (74 FR 48143, September 22, 2009), Transport Airplane Directorate, FAA, participate in developing this AD. We takes about 1 work-hour per product, at 1601 Lind Avenue SW., Renton, WA received no comments on the NPRM (80 an average labor rate of $85 per work- 98057–3356; telephone 425–227–2125; FR 40942, July 14, 2015) or on the hour. Based on these figures, the fax 425–227–1149. determination of the cost to the public. estimated cost of the actions that were SUPPLEMENTARY INFORMATION: Conclusion required by AD 2009–18–15 is $85 per product. Discussion We reviewed the available data and We issued a notice of proposed determined that air safety and the We also estimate that it takes about 1 rulemaking (NPRM) to amend 14 CFR public interest require adopting this AD work-hour per product to comply with part 39 to supersede AD 2009–18–15, as proposed, except for minor editorial the new ALS revision of this AD. The Amendment 39–16011 (74 FR 48143, changes. We have determined that these average labor rate is $85 per work-hour. September 22, 2009). AD 2009–18–15 minor changes: Based on these figures, we estimate the applied to all Airbus Model A300, • Are consistent with the intent that cost of this AD on U.S. operators to be A310, and A300 B4–600, B4–600R, and was proposed in the NPRM (80 FR $15,045, or $85 per product. F4–600R series airplanes; and Model 40942, July 14, 2015) for correcting the Authority for This Rulemaking unsafe condition; and A300 C4–605R Variant F airplanes • (collectively called Model A300–600 Do not add any additional burden Title 49 of the United States Code series airplanes). The NPRM published upon the public than was already specifies the FAA’s authority to issue in the Federal Register on July 14, 2015 proposed in the NPRM (80 FR 40942, rules on aviation safety. Subtitle I, (80 FR 40942). July 14, 2015). section 106, describes the authority of The European Aviation Safety Agency Related Service Information Under 1 the FAA Administrator. ‘‘Subtitle VII: (EASA), which is the Technical Agent CFR Part 51 Aviation Programs,’’ describes in more for the Member States of the European detail the scope of the Agency’s Airbus has issued the following Union, has issued EASA Airworthiness authority. service information. ‘‘Sub-part 1–2: Life Directive 2013–0248, dated October 14, Limits’’ and ‘‘Sub-part 1–3: We are issuing this rulemaking under 2013 (referred to after this as the Demonstrated fatigue lives’’ of Part 1, the authority described in ‘‘Subtitle VII, Mandatory Continuing Airworthiness ‘‘Safe Life Airworthiness Limitation Part A, Subpart III, Section 44701: Information, or ‘‘the MCAI’’), to correct Items,’’ in each of these documents General requirements.’’ Under that an unsafe condition for all Model A300, describe procedures for revising the section, Congress charges the FAA with A310, and A300–600 series airplanes. maintenance or inspection program to promoting safe flight of civil aircraft in The MCAI states: incorporate new maintenance air commerce by prescribing regulations The airworthiness limitations for Airbus requirements and airworthiness for practices, methods, and procedures aeroplanes are currently published in limitations. the Administrator finds necessary for Airworthiness Limitations Section (ALS) • For Model A300 series airplanes: safety in air commerce. This regulation documents. Part 1, ‘‘Safe Life Airworthiness is within the scope of that authority The mandatory instructions and airworthiness limitations applicable to the Limitation Items,’’ Revision 01, dated because it addresses an unsafe condition Aging Systems Maintenance (ASM) are September 5, 2013, of the Airbus Model that is likely to exist or develop on specified in Airbus A310 or A300–600 ALS A300 Airworthiness Limitations products identified in this rulemaking Part 4 documents, which are approved by the Section. action.

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Regulatory Findings (a) Effective Date Items,’’ dated September 6, 2007, of the Airbus A300 ALS. We determined that this AD will not This AD becomes effective December 17, 2015. have federalism implications under TABLE 1 TO PARAGRAPH (g) OF THIS (b) Affected ADs Executive Order 13132. This AD will AD—PARTS SUBJECT TO THE LIFE not have a substantial direct effect on (1) This AD replaces AD 2009–18–15, LIMITS SPECIFIED IN THE DOCUMENT the States, on the relationship between Amendment 39–16011 (74 FR 48143, IDENTIFIED IN PARAGRAPH (g)(1)(ii) the national government and the States, September 22, 2009). or on the distribution of power and (2) Accomplishing certain requirements of OF THIS AD paragraph (g) of this AD satisfies the responsibilities among the various requirements of paragraph A. of AD 84–02– Part No. Part name levels of government. 04, Amendment 39–4795 (49 FR 2746, (P/N) For the reasons discussed above, I January 23, 1984). certify that this AD: P/N C61643–2, P/N Main landing gear (c) Applicability 1. Is not a ‘‘significant regulatory C61643–4, P/N (MLG) shock ab- action’’ under Executive Order 12866; This AD applies to Airbus Model A300 B2– C61643–5. sorber end fitting. 1A, B2–1C, B2K–3C, B2–203, B4–2C, B4–103, P/N A32210001205xx Nose landing gear 2. Is not a ‘‘significant rule’’ under the and B4–203 airplanes; Model A300 B4–601, (NLG) pintle pin. DOT Regulatory Policies and Procedures B4–603, B4–620, and B4–622 airplanes; P/N C62037–1 ...... NLG shock absorber (44 FR 11034, February 26, 1979); Model A300 B4–605R and B4–622R bottom. 3. Will not affect intrastate aviation in airplanes; Model A300 F4–605R and F4– P/N 196–0328–501 ... Cross beam (Pratt & Alaska; and 622R, and A300 C4–605R Variant F Whitney forward airplanes; and Model A310–203, –204, –221, engine mount). 4. Will not have a significant –222, –304, –322, –324, and –325 airplanes; economic impact, positive or negative, certificated in any category, all manufacturer (2) For Model A310 series airplanes: on a substantial number of small entities serial numbers. Incorporate ‘‘Sub-part 1–2: Life Limits,’’ and under the criteria of the Regulatory (d) Subject ‘‘Sub-part 1–3: Demonstrated Fatigue Lives’’ Flexibility Act. of Part 1, ‘‘Safe Life Airworthiness Limitation Air Transport Association (ATA) of Items,’’ dated December 21, 2006, of the Examining the AD Docket America 32, Landing Gear. Airbus A310 ALS. You may examine the AD docket on (e) Reason (3) For Model A300 B4–600, B4–600R, and the Internet at http:// F4–600R series airplanes, and Model A300 This AD was prompted by a determination C4–605R Variant F airplanes (collectively www.regulations.gov/#!docket that existing maintenance requirements and called Model A300–600 series airplanes): Detail;D=FAA-2015-2461; or in person airworthiness limitations are inadequate to Incorporate ‘‘Sub-part 1–2: Life Limits,’’ and at the Docket Management Facility ensure the structural integrity of the airplane. ‘‘Sub-part 1–3: Demonstrated Fatigue Lives’’ between 9 a.m. and 5 p.m., Monday We are issuing this AD to prevent failure of of Part 1, ‘‘Safe Life Airworthiness Limitation through Friday, except Federal holidays. certain system components, which could Items,’’ dated December 21, 2006, of the The AD docket contains this AD, the result in reduced structural integrity of the Airbus A300–600 ALS. airplane. regulatory evaluation, any comments (h) Retained Initial Compliance Times and received, and other information. The (f) Compliance Repetitive Inspections street address for the Docket Operations Comply with this AD within the This paragraph restates the requirements of office (telephone 800–647–5527) is in compliance times specified, unless already paragraph (i) of AD 2009–18–15, Amendment the ADDRESSES section. done. 39–16011 (74 FR 48143, September 22, 2009). Do the replacement at the applicable time List of Subjects in 14 CFR Part 39 (g) Retained Revision of Airworthiness Limitation Section (ALS) specified in paragraph (h)(1) or (h)(2) of this Air transportation, Aircraft, Aviation AD, except as provided by paragraph (i) of This paragraph restates the requirements of this AD. The replacement must be done safety, Incorporation by reference, paragraph (h) of AD 2009–18–15, thereafter within the interval specified in the Safety. Amendment 39–16011 (74 FR 48143, applicable document identified in paragraph September 22, 2009). For Model A300, A310, Adoption of the Amendment (g)(1), (g)(2), or (g)(3) of this AD. and A300–600 series airplanes: Within 3 (1) For any life limitation/task that has Accordingly, under the authority months after October 27, 2009 (the effective been complied with before October 27, 2009 delegated to me by the Administrator, date of AD 2009–18–15), revise the ALS of (the effective date of AD 2009–18–15, the instructions for continued airworthiness the FAA amends 14 CFR part 39 as Amendment 39–16011), in accordance with (ICA) to incorporate the applicable document the applicable document listed in paragraph follows: listed in paragraph (g)(1), (g)(2), or (g)(3) of (g)(1), (g)(2), or (g)(3) of this AD, or in this AD. Accomplishing the actions specified accordance with paragraph (g) of AD 2009– PART 39—AIRWORTHINESS in the applicable document satisfies the 18–15, use the last accomplishment of each DIRECTIVES requirements of paragraph A. of AD 84–02– limitation/task as a starting point for 04, Amendment 39–4795 (49 FR 2746, accomplishing each corresponding ■ 1. The authority citation for part 39 January 23, 1984). limitation/task required by this AD. continues to read as follows: (1) For Model A300 series airplanes: (2) For any life limitation/task that has not Incorporate the applicable document listed in been complied with before October 27, 2009 Authority: 49 U.S.C. 106(g), 40113, 44701. paragraph (g)(1)(i) or (g)(1)(ii) of this AD. (the effective date of AD 2009–18–15, § 39.13 [Amended] (i) Section 05–10–00, Revision 28, dated Amendment 39–16011), in accordance with February 27, 1998, of Chapter 05, ‘‘Service the applicable document listed in paragraphs ■ 2. The FAA amends § 39.13 by Life Limits and Maintenance Checks,’’ of the (g)(1), (g)(2), and (g)(3) of this AD, or in removing Airworthiness Directive AD Airbus A300 Aircraft Maintenance Manual, accordance with paragraph (g) of AD 2009– 2009–18–15, Amendment 39–16011 (74 except that the parts listed in table 1 to 18–15, the initial compliance time starts from FR 48143, September 22, 2009), and paragraph (g) of this AD are subject to the life the date of initial entry into service as limits defined in the document listed in defined in the applicable document. adding the following new AD: paragraph (g)(1)(ii) of this AD. 2015–22–05 Airbus: Amendment 39–18310. (ii) ‘‘Sub-part 1–2: Life Limits,’’ and ‘‘Sub- (i) Retained Special Compliance Times Docket No. FAA–2015–2461; Directorate part 1–3: Demonstrated Fatigue Lives’’ of Part This paragraph restates the requirements of Identifier 2013–NM–202–AD. 1, ‘‘Safe Life Airworthiness Limitation paragraph (j) of AD 2009–18–15, Amendment

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39–16011 (74 FR 48143, September 22, 2009). replacement must be done thereafter at the operators with guidance on the means to For any airplane on which the history of interval specified in the applicable assign a conservative calculated life to parts accumulated landings is partial or unknown, document(s) specified in paragraphs (g)(1), whose history of accumulated landings is or where the history of application details (g)(2), and (g)(3) of this AD. partial or unknown; and to select the (airplane type, model, weight variant, etc.) is limitations applicable to parts whose history partial or unknown: Parts listed in figure 1 Note 1 to paragraph (i) of this AD: Airbus of application details (aircraft type, aircraft to paragraph (i) of this AD must be replaced Service Information Letter 32–118, Revision model, weight variant, etc.) is partial or at the associated compliance time. The 02, dated October 24, 2007, provides unknown.

FIGURE 1 TO PARAGRAPH (i) OF THIS AD—SPECIAL COMPLIANCE TIMES

Aircraft type applicability Compliance time (whichever occurs first Designation A300 A310 A300–600 Start date after the ‘‘start date’’) P/N Calendar X X X Landings time

MAIN LANDING GEAR

Aft pintle pin ...... A32140032200xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140056200xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140056202xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140057200xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140057202xx ...... X ...... X December 13, 2007 ..... 13,500 9 years. A32140062000xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140063000xx ...... X ...... X December 13, 2007 ..... 13,500 9 years. Half ball housing (Fwd A32140036200xx ...... X ...... December 13, 2007 ..... 13,500 9 years. pintle bearing). A32140036202xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140036204xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140036206xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140042200xx ...... X ...... X December 13, 2007 ..... 13,500 9 years. A32140042202xx ...... X ...... X December 13, 2007 ..... 13,500 9 years. A32140068002xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140068004xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140069002xx ...... X ...... X December 13, 2007 ..... 13,500 9 years. A32140069004xx ...... X ...... X December 13, 2007 ..... 13,500 9 years. Ball (Fwd pintle pin) ..... A32140012202xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A32140043202xx ...... X ...... X December 13, 2007 ..... 13,500 9 years. Pin (Multiple link/Frame A53833451200xx ...... X ...... December 13, 2007 ..... 13,500 9 years. 50). A53833451206xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A53834451200xx ...... X ...... December 13, 2007 ..... 13,500 9 years. A53834451202xx ...... X ...... X April 25, 2007 ...... 13,500 9 years. Pin (Drop link/Frame A53811122200xx ...... X ...... April 25, 2007 ...... 18,000 9 years. 50).

MLG Barrel Assembly

Upper torque link pin 00–200–402 ...... X ...... December 13, 2007 ..... N/A 30 months. nut. SL40089 ...... X ...... December 13, 2007 ..... N/A 30 months. SL40089P ...... X ...... December 13, 2007 ..... N/A 30 months. SL40123 ...... X ...... December 13, 2007 ..... N/A 30 months. SL40123P ...... X X X April 25, 2007 ...... N/A 30 months. Torque link medium pin 00–200–358 ...... X ...... December 13, 2007 ..... N/A 30 months. nut. SL40114P ...... X X ...... April 25, 2007 ...... N/A 30 months. SL40132 ...... X ...... December 13, 2007 ..... N/A 30 months. SL40132P ...... X ...... X April 25, 2007 ...... N/A 30 months. Attaching fitting pin ...... C62311–1 ...... X ...... December 13, 2007 ..... 13,500 9 years. C62311–20 ...... X ...... X April 25, 2007 ...... 13,500 9 years. Pin (Connecting rod/ C65815 ...... X ...... December 13, 2007 ..... 13,500 9 years. Upper rod). C65815–1 ...... X ...... December 13, 2007 ..... 13,500 9 years. C65815–20 ...... X ...... December 13, 2007 ..... 13,500 9 years. C66472 ...... X ...... December 13, 2007 ..... 13,500 9 years. C66472–1 ...... X ...... December 13, 2007 ..... 13,500 9 years. C66472–20 ...... X ...... X April 25, 2007 ...... 13,500 9 years. D52751 ...... X ...... April 25, 2007 ...... 18,000 9 years.

MLG Shock Absorber Assembly

Lower torque link pin 00–200–402 ...... X ...... December 13, 2007 ..... N/A 30 months. nut. SL40089 ...... X ...... December 13, 2007 ..... N/A 30 months. SL40089P ...... X ...... December 13, 2007 ..... N/A 30 months. SL40123 ...... X ...... December 13, 2007 ..... N/A 30 months. SL40123P ...... X X X April 25, 2007 ...... N/A 30 months.

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FIGURE 1 TO PARAGRAPH (i) OF THIS AD—SPECIAL COMPLIANCE TIMES—Continued

Aircraft type applicability Compliance time (whichever occurs first Designation A300 A310 A300–600 Start date after the ‘‘start date’’) P/N Calendar X X X Landings time

Bogie beam pivot pin SL40054 ...... X ...... December 13, 2007 ..... at next removal/ nut. installation.12

SL40054P ...... X ...... X April 25, 2007 ...... at next removal/ installation.12

SL40413P ...... X ...... April 25, 2007 ...... at next removal/ installation.12

MLG Lock Link Assembly

Lock link medium pin ... C61485–1 ...... X ...... December 13, 2007 ..... N/A 30 months. C61485–20 ...... X ...... X April 25, 2007 ...... N/A 30 months.

NOSE LANDING GEAR

Pintle pin ...... A32210079200xx ...... X X X April 25, 2007 ...... 13,500 9 years.

NLG Telescopic Strut Assembly

Nut (Cylinder/Locking C61375 ...... X X ...... April 25, 2007 ...... 13,500 9 years. cylinder). D55955 ...... X X X April 25, 2007 ...... 13,500 9 years. Locking sleeve ...... C61389 ...... X X ...... December 13, 2007 ..... 13,200 9 years. C61389–1 ...... X X X April 25, 2007 ...... 13,500 9 years.

NLG Barrel Assembly

Pin (Clevis/Telescopic C62231–1 ...... X ...... December 13, 2007 ..... 13,200 9 years. strut). C62231–2 ...... X ...... December 13, 2007 ..... 13,200 9 years. C62231–20 ...... X X X April 25, 2007 ...... 13,500 9 years. D56530 ...... X X X April 25, 2007 ...... 13,500 9 years. Lower pin (Link/Clevis) C62268–1 ...... X ...... December 13, 2007 ..... 13,200 9 years. C62268–2 ...... X ...... December 13, 2007 ..... 13,200 9 years. C62268–20 ...... X X X April 25, 2007 ...... 13,500 9 years. Link (Clevis/Barrel) ...... C62230–1 ...... X X X April 25, 2007 ...... 13,500 9 years. D56526 ...... X X X April 25, 2007 ...... 13,500 9 years. Upper pin (Link/Barrel) C62267–1 ...... X ...... December 13, 2007 ..... 13,200 9 years. C62267–2 ...... X ...... December 13, 2007 ..... 13,200 9 years. C62267–20 ...... X X X April 25, 2007 ...... 13,500 9 years.

End fitting pin nut ...... D68062 ...... X X X December 13, 2007 ..... at next removal/ installation.2

MS17825–6 ...... X X X December 13, 2007 ..... at next removal/ installation.2

End fitting pin ...... AN6–17 ...... X X X December 13, 2007 ..... at next removal/ installation.2

D61183 ...... X X X December 13, 2007 ..... at next removal/ installation.2

D68063 ...... X X X December 13, 2007 ..... at next removal/ installation.2

NAS1306–22D ...... X X X December 13, 2007 ..... at next removal/ installation.2

End fitting ...... C62032 ...... X X X April 25, 2007 ...... 13,500 9 years. C62032–1 ...... X X X April 25, 2007 ...... 13,500 9 years. Rack ...... C61453 ...... X ...... December 13, 2007 ..... 13,200 9 years. C61453–1 ...... X X X April 25, 2007 ...... 13,500 9 years. C61453–20 ...... X X X April 25, 2007 ...... 13,500 9 years. C61453–40 ...... X X X April 25, 2007 ...... 13,500 9 years. C61453–41 ...... X X X April 25, 2007 ...... 13,500 9 years. Torque link pin (Upper C62223–1 ...... X ...... December 13, 2007 ..... 13,200 9 years. & Lower). C62223–20 ...... X X X April 25, 2007 ...... 13,500 9 years.

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FIGURE 1 TO PARAGRAPH (i) OF THIS AD—SPECIAL COMPLIANCE TIMES—Continued

Aircraft type applicability Compliance time (whichever occurs first Designation A300 A310 A300–600 Start date after the ‘‘start date’’) P/N Calendar X X X Landings time

Torque link medium pin SL40110P ...... X X X April 25, 2007 ...... N/A 30 months. nut.

NLG Shock Absorber Assembly

Wheel axle nut ...... C62879 ...... X X X April 25, 2007 ...... 4,000 24 months.

Upper cam dowel ...... C62270 ...... X X X December 13, 2007 ..... at next removal/ installation.

Upper cam ...... C62034–1 ...... X X X April 25, 2007 ...... 13,500 9 years. Lower cam ...... C62035 ...... X X X April 25, 2007 ...... 13,500 9 years. Restrictor ...... C62036 ...... X ...... December 13, 2007 ..... 13,200 9 years. C62036–1 ...... X ...... December 13, 2007 ..... 13,200 9 years. C62036–2 ...... X ...... December 13, 2007 ..... 13,200 9 years. C67863 ...... X ...... December 13, 2007 ..... 13,200 9 years. C67863–1 ...... X X X April 25, 2007 ...... 13,500 9 years. C67863–2 ...... X X X April 25, 2007 ...... 13,500 9 years. C67863–3 ...... X ...... December 13, 2007 ..... 13,500 9 years. C67863–4 ...... X X X April 25, 2007 ...... 13,500 9 years.

Lower cam dowel ...... C62866 ...... X X X December 13, 2007 ..... at next removal/ installation.2

Nut (S/A/Barrel) ...... C64040 ...... X ...... December 13, 2007 ..... at next removal/ installation.12

C64040–1 ...... X X X December 13, 2007 ..... at next removal/ installation.12 1 When the nut is temporarily removed and reinstalled for the purpose of performing maintenance outside a workshop, no replacement is re- quired provided the nut’s removal and reinstallation are performed on the same assembly and neither the assembly nor the nut accumulates time in service during the period between the removal and reinstallation. 2 If the removal/installation was done after the start date, but before the effective date of this AD, the compliance time is within 3 months after October 27, 2009 (the effective date of AD 2009–18–15, Amendment 39–16011 (74 FR 48143, September 22, 2009)).

(j) New Requirements of This AD: Items,’’ dated Revision 01, September 5, telephone 425–227–2125; fax 425–227–1149. Maintenance Program Revision 2013, of the Airbus A310 ALS. Information may be emailed to: 9-ANM-116- [email protected]. Before using Within 3 months after the effective date of (k) New Limitation: No Alternative Actions any approved AMOC, notify your appropriate this AD: Revise the maintenance or or Intervals inspection program, as applicable, to principal inspector, or lacking a principal After accomplishment of the revision incorporate the applicable limitation, inspector, the manager of the local flight required by paragraph (j) of this AD, no standards district office/certificate holding replacement, or inspection specified in alternative actions (e.g., inspections) or paragraph (j)(1), (j)(2), or (j)(3) of this AD, as district office. The AMOC approval letter intervals may be used unless the actions or must specifically reference this AD. applicable. Doing any task required by this intervals are approved as an alternative (2) Contacting the Manufacturer: As of the paragraph terminates the corresponding task method of compliance (AMOC) in effective date of this AD, for any requirement required by paragraph (g), (h), and (i) of this accordance with the procedures specified in in this AD to obtain corrective actions from AD. paragraph (l) of this AD. (1) For Model A300 series airplanes: a manufacturer, the action must be Incorporate ‘‘Sub-part 1–2: Life Limits,’’ and (l) Other FAA AD Provisions accomplished using a method approved by ‘‘Sub-part 1–3: Demonstrated Fatigue Lives’’ The following provisions also apply to this the Manager, International Branch, ANM– of Part 1, ‘‘Safe Life Airworthiness Limitation AD: 116, Transport Airplane Directorate, FAA; or Items,’’ Revision 01, dated September 5, (1) Alternative Methods of Compliance the European Aviation Safety Agency 2013, of the Airbus A300 ALS. (AMOCs): The Manager, International (EASA); or Airbus’s EASA Design (2) For Model A300 B4–600, B4–600R, and Branch, ANM–116, Transport Airplane Organization Approval (DOA). If approved by F4–600R series airplanes, and Model A300 Directorate, FAA, has the authority to the DOA, the approval must include the C4 605R Variant F airplanes (collectively approve AMOCs for this AD, if requested DOA-authorized signature. called Model A300–600 series airplanes): using the procedures found in 14 CFR 39.19. (m) Related Information Incorporate ‘‘Sub-part 1–2: Life Limits,’’ and In accordance with 14 CFR 39.19, send your ‘‘Sub-part 1–3: Demonstrated Fatigue Lives’’ request to your principal inspector or local (1) Refer to Mandatory Continuing of Part 1, ‘‘Safe Life Airworthiness Limitation Flight Standards District Office, as Airworthiness Information (MCAI) EASA Items,’’ Revision 01, dated September 5, appropriate. If sending information directly Airworthiness Directive 2013–0248, dated 2013, of the Airbus A300–600 ALS. to the International Branch, send it to ATTN: October 14, 2013, for related information. (3) For Model A310 series airplanes: Dan Rodina, Aerospace Engineer, This MCAI may be found in the AD docket Incorporate ‘‘Sub-part 1–2: Life Limits,’’ and International Branch, ANM–116, Transport on the Internet at http://www.regulations.gov ‘‘Sub-part 1–3: Demonstrated Fatigue Lives’’ Airplane Directorate, FAA, 1601 Lind by searching for and locating Docket No. of Part 1, ‘‘Safe Life Airworthiness Limitation Avenue SW., Renton, WA 98057–3356; FAA–2015–2461–0002.

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(2) Service information identified in this Airworthiness Limitation Items’’ dated second person from the Entity List AD that is not incorporated by reference in December 21, 2006. following a proposal submitted by an this AD is available at the addresses specified (5) For service information identified in ERC member agency, in accordance in paragraphs (n)(5) and (n)(6) of this AD. this AD, contact Airbus, Airworthiness with the procedure for requesting Office—EAS, 1 Rond Point Maurice Bellonte, (n) Material Incorporated by Reference removal or modification of an Entity 31707 Blagnac Cedex, France; telephone +33 (1) The Director of the Federal Register 5 61 93 36 96; fax +33 5 61 93 44 51; email List entity. approved the incorporation by reference [email protected]; Internet Finally, this final rule modifies ten (IBR) of the service information listed in this http://www.airbus.com. existing entries on the Entity List paragraph under 5 U.S.C. 552(a) and 1 CFR (6) You may view this service information consisting of one entry under China and part 51. at the FAA, Transport Airplane Directorate, nine entries under Hong Kong to (2) You must use this service information 1601 Lind Avenue SW., Renton, WA. For provide additional or modified as applicable to do the actions required by information on the availability of this addresses and/or aliases for these this AD, unless this AD specifies otherwise. material at the FAA, call 425–227–1221. persons. (3) The following service information was (7) You may view this service information approved for IBR on November 27, 2015. that is incorporated by reference at the DATES: This rule is effective on (i) ALS Part 1, ‘‘Safe Life Airworthiness National Archives and Records November 12, 2015. Limitation Items,’’ Revision 01, dated Administration (NARA). For information on FOR FURTHER INFORMATION CONTACT: September 5, 2013, of the Airbus Model A300 the availability of this material at NARA, call Chair, End-User Review Committee, Airworthiness Limitations Section. 202–741–6030, or go to: http:// Office of the Assistant Secretary, Export (ii) ALS Part 1, ‘‘Safe Life Airworthiness www.archives.gov/federal-register/cfr/ibr- Administration, Bureau of Industry and Limitation Items,’’ Revision 01, dated locations.html. September 5, 2013, of the Airbus Model Security, Department of Commerce, A300–600 Airworthiness Limitations Issued in Renton, Washington, on October Phone: (202) 482–5991, Fax: (202) 482– Section. 21, 2015. 3911, Email: [email protected]. (iii) ALS Part 1, ‘‘Safe Life Airworthiness Jeffrey E. Duven, SUPPLEMENTARY INFORMATION: Limitation Items,’’ Revision 01, dated Manager, Transport Airplane Directorate, September 5, 2013, of the Airbus Model A310 Aircraft Certification Service. Background Airworthiness Limitations Section. [FR Doc. 2015–27449 Filed 11–10–15; 8:45 am] The Entity List (Supplement No. 4 to (4) The following service information was BILLING CODE 4910–13–P Part 744) identifies entities and other approved for IBR on October 27, 2009 (74 FR persons reasonably believed to be 48143, September 22, 2009). involved, or to pose a significant risk of (i) Section 05–10–00 of Chapter 05, ‘‘Service Life Limits and Maintenance DEPARTMENT OF COMMERCE being or becoming involved, in Checks,’’ of the Airbus A300 Aircraft activities contrary to the national Maintenance Manual (AMM), Revision 28, Bureau of Industry and Security security or foreign policy interests of the dated February 27, 1998. United States. The EAR imposes (A) The AMM title page; the Record of 15 CFR Part 744 additional license requirements on, and Revisions, Effective Pages, and Table of limits the availability of most license Content pages; and Section 05–10–00; for [Docket No. 150911846–5846–01] exceptions for, exports, reexports, and Chapter 05 of Airbus A300 AMM are all RIN 0694–AG74 transfers (in-country) to those listed. dated February 27, 1998. The ‘‘license review policy’’ for each (B) The revision level of Chapter 05 of the Addition of Certain Persons and listed entity or other person is identified Airbus A300 AMM is indicated only in the Modification of Certain Entries to the Record of Revisions section of Chapter 05. in the License Review Policy column on (C) The List of Effective Pages (LOEP) for Entity List; and Removal of Certain the Entity List and the impact on the Chapter 05 of the Airbus A300 AMM Persons From the Entity List availability of license exceptions is contains the discrepancies identified in described in the Federal Register notice AGENCY: Bureau of Industry and paragraphs (n)(4)(i)(C)(1) through Security, Commerce. adding entities or other persons to the (n)(4)(i)(C)(4) of this AD. Entity List. BIS places entities and other ACTION: (1) The Transmittal Letter page, page 4 of Final rule. persons on the Entity List pursuant to the LOEP and Table of Contents sections, sections of part 744 (Control Policy: page 2 of Subsection 05–00–01, Subsection SUMMARY: This rule amends the Export 05–10–00, and page 1 of Subsection 05–11– Administration Regulations (EAR) by End-User and End-Use Based) and part 11, are not listed in the LOEP for Chapter 05 adding seven persons under ten entries 746 (Embargoes and Other Special of the Airbus A300 AMM. to the Entity List. The seven persons Controls) of the EAR. (2) The LOEP for Chapter 05 of the Airbus who are added to the Entity List have The ERC, composed of representatives A300 AMM does not specify a date for the been determined by the U.S. of the Departments of Commerce Record of Revisions page. Government to be acting contrary to the (Chair), State, Defense, Energy and, (3) The LOEP for Chapter 05 of the Airbus national security or foreign policy where appropriate, the Treasury, makes A300 AMM identifies three pages for all decisions regarding additions to, Subsection 05–11–00, Configuration 5; interests of the United States. These persons will be listed on the Entity List removals from, or other modifications to however, only one page exists. the Entity List. The ERC makes all (4) The LOEP for Chapter 05 of the Airbus under the destinations of China and A300 AMM identifies three pages for Hong Kong. decisions to add an entry to the Entity Subsection 05–11–00, Configuration 9; This final rule also removes two List by majority vote and all decisions however, those pages do not exist. persons from the Entity List. One entity to remove or modify an entry by (ii) Airbus A300 Airworthiness Limitations requested removal from the Entity List unanimous vote. Section, ALS Part 1, ‘‘Safe Life Airworthiness in accordance with the procedure for ERC Entity List Decisions Limitations Items’’ dated September 6, 2007. requesting removal or modification of (iii) Airbus A300–600 Airworthiness Additions to the Entity List Limitations Section, ALS Part 1, ‘‘Safe Life an Entity List entity. The End-User Airworthiness Limitations Items’’ dated Review Committee (ERC) decided to This rule implements the decision of December 21, 2006. remove this entity following a review of the ERC to add seven persons under ten (iv) Airbus A310 Airworthiness information provided in the removal entries to the Entity List. These seven Limitations Section, ALS Part 1, ‘‘Safe Life request. The ERC decided to remove a persons are being added on the basis of

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§ 744.11 (License requirements that § 744.11, the ERC specified a license (4) Reekay Technology Ltd., a.k.a., the apply to entities acting contrary to the requirement for all items subject to the following one alias: national security or foreign policy EAR and a license review policy of —Reekay Technology. interests of the United States) of the presumption of denial. The license Suite 502, 5th Floor Arion EAR. The ten entries added to the Entity requirements apply to any transaction in Commercial Centre, No. 2–12 List consist of three entries in China and which items are to be exported, Queens Road West, Sheung Wan, seven entries in Hong Kong. There are reexported, or transferred (in-country) to Hong Kong; ten entries for the seven persons any of the persons or in which such (5) Sky Rise Technology Ltd., a.k.a., because three persons are listed in both persons act as purchaser, intermediate the following one alias: China and Hong Kong, resulting in three consignee, ultimate consignee, or end- additional entries. user. In addition, no license exceptions —Sky Rise Tech. Room 1905, 19/F, Nam Wo Hong The ERC reviewed § 744.11(b) are available for exports, reexports, or Bldg., 148 Wing Lok Street, Sheung (Criteria for revising the Entity List) in transfers (in-country) to the persons Wang, Hong Kong; and Room 1118, making the determination to add these being added to the Entity List in this 11/F, Block B1, Yau Tong Industrial seven persons under ten entries to the rule. Entity List. Under that paragraph, This final rule adds the following City, 17 Ko Fai Road, Yau Tong, persons for whom there is reasonable seven persons under ten entries to the Kowloon, Hong Kong; and 1119, cause to believe, based on specific and Entity List: 11/F, Block B, Yau Tong Industrial articulable facts, have been involved, City, 17 Ko Fai Road, Yau Tong, are involved, or pose a significant risk China Kowloon, Hong Kong (See also of being or becoming involved in, (1) Sky Rise Technology Ltd., a.k.a., address under China); activities that are contrary to the the following one alias: (6) TiMi Technologies Co., Ltd., a.k.a., national security or foreign policy —Sky Rise Tech. the following two aliases: interests of the United States and those 4–4–2301 Xinyi Jiayuan, —TiMi Technology Co. Ltd.; and acting on behalf of such persons may be Chongwenmen, Dongcheng, Beijing, —TiMi Tech. added to the Entity List. Paragraphs China (See also addresses under Room 1119, 11/F, Block B, Yau Tong (b)(1) through (b)(5) of § 744.11 include Hong Kong); Industrial City, 17 Ko Fai Road, Yau an illustrative list of activities that could (2) TiMi Technologies Co., Ltd., a.k.a., Tong, Kowloon, Hong Kong; and be contrary to the national security or the following two aliases: Room 1118, 11/F, Block B1, Yau foreign policy interests of the United —TiMi Technology Co. Ltd.; and Tong Industrial City, 17 Ko Fai States. Pursuant to § 744.11 of the EAR, Road, Yau Tong, Kowloon, Hong the ERC determined that the seven —TiMi Tech. F/10, A-Tower, Nongke Building, 11/ Kong; and Unit A, G/F, Pioneer persons be added to the Entity List for Shu Guang Hua Yuan Zhong Lu, Building, 213 Wai Yip St., Kwun actions contrary to the national security Haidian District, Beijing, China, Tong, Kowloon, Hong Kong; and or foreign policy interests of the United 100097; and Nanhai Avenue, Room 1905, 19/F, Nam Wo Hong States. Bldg., 148 Wing Lok Street, Sheung The ERC has determined that for the Nanshan District, 518054, Shenzhen, China (See also Wang, Hong Kong (See also seven persons added, there is reasonable addresses under China); cause to believe, based on specific and addresses under Hong Kong); and articulable facts, that (Jack) Wang Wei, (3) Wang Wei, a.k.a., the following one (7) Wang Wei, a.k.a., the following one Sky Rise Technology Ltd., TiMi alias: alias: Technologies Co. Ltd., Caprice Group —Jack Wang. —Jack Wang. Ltd., Reekay Technology Limited, and 4–4–2301 Xinyi Jiayuan, Room 1905, 19/F, Nam Wo Hong 32 Group China Ltd. have made Chongwenmen, Dongcheng, Beijing, Bldg., 148 Wing Lok Street, Sheung attempts to procure items, including China; and F/10, A-Tower, Nongke Wang, Hong Kong; and Room 1118, U.S.-origin items, for activities contrary Building, 11/Shu Guang Hua Yuan 11/F, Block B, Yau Tong Industrial to the national security and foreign Zhong Lu, Haidian District, Beijing, City, 17 Ko Fai Road, Yau Tong, policy interests of the United States. China, 100097 (See also addresses Kowloon, Hong Kong; and Room Specifically, (Jack) Wang Wei has used under Hong Kong). 1119, 11/F, Block B, Yau Tong these companies to supply U.S.-origin Industrial City, 17 Ko Fai Road, Yau items to an Iranian party associated with Hong Kong Tong, Kowloon, Hong Kong (See the Iranian defense industry and to an (1) 32 Group China Ltd., Room 1905, also addresses under China). 19/F, Nam Wo Hong Bldg., 148 Wing Iranian party whose customers include Removals From the Entity List companies designated by the Lok Street, Sheung Wang, Hong Kong; Department of Treasury as Specially and Room 1119, 11/F, Block B, Yau This rule implements a decision of Designated Nationals. Tong Industrial City, 17 Ko Fai Road, the ERC to remove two persons, Weihai Pursuant to § 744.11(b)(2) of the EAR, Yau Tong, Kowloon, Hong Kong; New Era Chemical Industrial Company the ERC determined that the conduct of (2) Caprice Group Ltd., Room 1119, Limited, located in China; and Able City these seven persons raises sufficient 11/F, Block B1, Yau Tong Industrial Development Limited, located in Hong concern that prior review of exports, City, 17 Ko Fai Road, Yau Tong, Kong, from the Entity List. This rule reexports, or transfers (in-country) of Kowloon, Hong Kong; and Unit B1, G/ removes Weihai New Era Chemical items subject to the EAR involving these F, Pioneer Building, 213 Wai Yip St., Industrial Company Limited on the persons, and the possible imposition of Kwun Tong, Kowloon, Hong Kong; and basis of a removal request submitted by license conditions or license denials on Unit A, G/F, Pioneer Building, 213 Wai this listed person pursuant to § 744.16 shipments to the persons, will enhance Yip St., Kwun Tong, Kowloon, Hong (Procedure for requesting removal or BIS’s ability to prevent violations of the Kong; modification of an Entity List entity) of EAR. (3) Kitronix Display, Unit B1, G/F, the EAR. Able City Development For the seven persons this rule adds Pioneer Building, 213 Wai Yip St., Limited is being removed pursuant to a to the Entity List on the basis of Kwun Tong, Kowloon, Hong Kong; proposal submitted by an End-User

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Review Committee (ERC) member Hong Kong the entry for Serko Limited; add one agency, in accordance with Supplement (1) Able City Development Limited, additional address and one alias to the No. 5 to Part 744 of the EAR, as Unit C, 9/F Neich Tower, 128 entry for Tex-Co Logistics Ltd.; and add discussed below. Gloucester Road, Wanchai, Hong Kong; one additional address and one alias to A. Removal pursuant to § 744.16. and Unit 401, Harbour Ctr., Tower 2, 8 the entry for Yeraz, LTD. Based upon a review of the Hok Cheung Street, Hung Hom, This final rule makes the following information provided in a removal Kowloon, Hong Kong. modifications to ten entries on the request made in accordance with The removal of the two entities Entity List: § 744.16 of the EAR and further review referenced above, which was approved China by the ERC, eliminates the existing conducted by the ERC, the ERC (1) China Electronics Technology license requirements in Supplement No. determined that the Weihai New Era Group Corporation 29 (CETC 29) 4 to part 744 for exports, reexports and Chemical Industrial Company Limited Research Institute, a.k.a., the following transfers (in-country) to these entities. should be removed from the Entity List. ten aliases: However, the removal of these two Weihai New Era Chemical Industrial —CETC 29th Research Institute; Company Limited was added to the entities from the Entity List does not relieve persons of other obligations —China Southwest Electronic Entity List on May 1, 2014 (79 FR Equipment Research Institute 24563) pursuant to § 744.11(b)(2) and under part 744 of the EAR or under other parts of the EAR. Neither the (SWIEE); (b)(5) of the EAR. The ERC’s decision to —29 (SIWEI Co) Institute; removal of an entity from the Entity List remove Weihai New Era Chemical —SIWI Electronics Corporation; Industrial Company Limited from the nor the removal of Entity List-based —Chengdu SIWI Electronics Inc.; Entity List was based on information license requirements relieves persons of —Chengdu SIWEI Electronics Company; provided by the company in its appeal their obligations under General —Chengdu 29 Institute; request pursuant to § 744.16. Prohibition 5 in § 736.2(b)(5) of the EAR —Si Wei Company 29th Institute; In accordance with § 744.16(c), the which provides that, ‘‘you may not, —SIWI Group; and Deputy Assistant Secretary for Export without a license, knowingly export or —Southwest China Institute of Administration has sent written reexport any item subject to the EAR to Electronics. notification informing this person of the an end-user or end-use that is No. 496 West Yingkang Road, ERC’s decision. prohibited by part 744 of the EAR.’’ Chengdu, Sichuan Province 610036, Additionally these removals do not B. Other removal based on ERC China; and Box #429, #1 relieve persons of their obligation to decision. Waixichadianziheng Street, apply for export, reexport or in-country Chengdu, Sichuan Province 610036, This rule implements a decision of transfer licenses required by other China; and 5 Cheng Wen Road, the ERC to remove one person located provisions of the EAR. BIS strongly Chengdu, China 610036; and No. 3 in Hong Kong, Able City Development urges the use of Supplement No. 3 to Research Department, Zhongdian, Limited, from the Entity List. The ERC part 732 of the EAR, ‘‘BIS’s ‘Know Your China; and No. 29 Institute, Waixi determined that this person no longer Customer’ Guidance and Red Flags,’’ Chadi, Chengdu, China; and No. 81 met the criteria for inclusion on the when persons are involved in BaiChao Road, XiPu Town, PiXian Entity List. Able City Development transactions that are subject to the EAR. County, Chengdu, China; and Siwei Limited was added to the Entity List on Additionally, as noted above, Able City Electron Mansion, Xiejiasi, July 21, 2009 (74 FR 35797) pursuant to Development Limited no longer exists Qingyang, Chengdu, China; and 1 § 744.11(b) of the EAR. In accordance so there should be no transactions Hengjie Chadianzi Western Suburb, with the procedures outlined in involving this person. Chengdu, China. Supplement No. 5 to part 744 of the EAR, any agency that participates in the Modifications to the Entity List Hong Kong ERC may make a proposal to add, This final rule implements decisions (1) Biznest, LTD, Room 927 9/F Far modify or remove an entry from the of the ERC to modify ten existing entries East Consortium Building, 121 Des Entity List by submitting that proposal on the Entity List. Under the destination Voeux Road C, Central District, Hong to the chairman. For this removal, an of China, the ERC made a determination Kong; and 4/F, Hong Kong Trade ERC member agency proposed to the to add six additional addresses and Centre, 161–167 Des Voeux Road, ERC to remove Able City Development eight additional aliases to the entry for Central, Hong Kong; Limited because a review of records China Electronics Technology Group (2) Giant Base Asia Limited, Room indicated that the entity has dissolved. Corporation 29 (CETC 29) Research 2205, 22/F, Kowloon Building, 555 Because this entity does not exist, in Institute. Under the destination of Hong Nathan Road, Hong Kong; and Flat E, accordance with § 744.16(c), the Deputy Kong, the ERC made a determination to Block 1, 12/F, Superluck Industrial Assistant Secretary for Export make the following modifications to Centre, Tsuen Wan, New Territories, Administration has not sent written nine entries, as follows: add one Hong Kong; notification informing this person of the additional address to the entry for (3) Jadeshine Engineering (HK) Co., ERC’s decision. Biznest, LTD; add one additional Room 702, Boss Commercial Centre, This final rule implements the address to the entry for Giant Base Asia Ferry Street 38, Kowloon, Hong Kong; decision to remove the following two Limited; add one additional address to and G/F BLK C 255 Sai Tau Wai DD 123 persons from the Entity List: the entry for Jadeshine Engineering (HK) Lot 1307 Yuen Long, NT, Hong Kong; China Co.; add one additional address to the (4) JLD Technology, Hong Kong Co., entry for JLD Technology; add one Ltd., Room 1237, Pacific Trade Centre, (1) Weihai New Era Chemical additional address and two additional No. 2 Kai Hing Road, Kowloon Bay, Industrial Company Limited, No. 985 aliases to the entry for Kinglead Hong Kong; and Room 301–2, Hang Fenghua Shan Road, Yangting New Electronics Co., Ltd.; add one alias to Seng Wanchai Building, 3rd Floor, No. Industrial District, Huancui District, the entry for PRC Lode Technology 200 Hennessy Road, Wanchai, Hong Weihai, China. Company; add one additional address to Kong;

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(5) Kinglead Electronics Co., Ltd., export or reexport without a license [email protected], or by fax to (202) a.k.a., the following four aliases: (NLR). 395–7285. 3. This rule does not contain policies —Kinglead International Trading; Export Administration Act —Kinglead Trading; with Federalism implications as that —Kinglead International Trading Although the Export Administration term is defined in Executive Order Limited; and Act expired on August 20, 2001, the 13132. —Phonide Electronics Limited. President, through Executive Order 4. For the seven persons under ten Room 1041 Pacific Trade Center, No. 13222 of August 17, 2001, 3 CFR, 2001 entries added to the Entity List in this 2 Kai Hing Road, Kowloon Bay, Comp., p. 783 (2002), as amended by final rule, and the ten existing entities Hong Kong; and B5–3, 29/F, Legend Executive Order 13637 of March 8, whose entries on the Entity List are Tower, 7 Shing Yip Street, Kwun 2013, 78 FR 16129 (March 13, 2013) and being modified to provide additional or Tong, Kowloon, Hong Kong (See as extended by the Notice of August 7, modified addresses and/or aliases, the alternate address under China); 2015, 80 FR 48233 (August 11, 2015), provisions of the Administrative has continued the Export Procedure Act (5 U.S.C. 553) requiring (6) PRC Lode Technology Company, Administration Regulations in effect notice of proposed rulemaking, the a.k.a., the following one alias: under the International Emergency opportunity for public comment and a —Lode International Limited. Economic Powers Act. BIS continues to delay in effective date are inapplicable Room 1019–1020 Nan Fung Centre, carry out the provisions of the Export because this regulation involves a 264–298 Castle Peak Road, Tsuen Administration Act, as appropriate and military or foreign affairs function of the Wan New Territories, Hong Kong; to the extent permitted by law, pursuant United States. (See 5 U.S.C. 553(a)(1)). and Room 1522 Nan Fung Centre, to Executive Order 13222, as amended BIS implements this rule to protect U.S. 264–298 Castle Peak Road, Tsuen by Executive Order 13637. national security or foreign policy Wan New Territories, Hong Kong interests by preventing items from being Rulemaking Requirements (See alternate addresses under exported, reexported, or transferred (in- China); 1. Executive Orders 13563 and 12866 country) to the persons being added to (7) Serko Limited, Room 704 7/F, direct agencies to assess all costs and the Entity List. If this rule were delayed Landwide Commercial Building, 118– benefits of available regulatory to allow for notice and comment and a 120 Austin Rd, Tsim Sha Tsui, Hong alternatives and, if regulation is delay in effective date, then entities Kong; and Room 1509, Unit A, 15th necessary, to select regulatory being added to the Entity List or approaches that maximize net benefits Floor, Mai Shun Industrial Building, modified by this action would continue (including potential economic, No. 18–24 Kwai Cheong Road, New to be able to receive items without a environmental, public health and safety Territories, Hong Kong; license and to conduct activities effects, distributive impacts, and (8) Tex-Co Logistics Ltd., a.k.a., the contrary to the national security or equity). Executive Order 13563 following one alias: foreign policy interests of the United emphasizes the importance of States. In addition, because these parties —Tex-Co Hongxin Logistics Limited. quantifying both costs and benefits, of may receive notice of the U.S. GF Seapower Industrial Building 177, reducing costs, of harmonizing rules, Government’s intention to place this Hoi Bun Road, Kowloon, Hong and of promoting flexibility. This rule entity on the Entity List if a proposed Kong, and Room 2202, 22F, has been determined to be not rule is published, doing so would create Causeway Bay Plaza 1, 489 significant for purposes of Executive an incentive for these persons to either Hennessey Road, Causeway Bay, Order 12866. accelerate receiving items subject to the Hong Kong, and Room B03, 6/F, 2. Notwithstanding any other EAR to conduct activities that are Cheong Wah Factory Building, 39– provision of law, no person is required contrary to the national security or 41 Sheung Heung Road, Tokwawan, to respond to nor be subject to a penalty foreign policy interests of the United Kowloon, Hong Kong; and Room G, for failure to comply with a collection States, or to take steps to set up 6/F Winner Building, 36 Man Yue of information, subject to the additional aliases, change addresses, Street, Hung Hom, Kowloon; and requirements of the Paperwork and other measures to try to limit the (9) Yeraz, LTD, a.k.a., the following Reduction Act of 1995 (44 U.S.C. 3501 impact of the listing on the Entity List one alias: et seq.) (PRA), unless that collection of once a final rule was published. Further, —Mikrocity HK Limited. information displays a currently valid no other law requires that a notice of Room 927 9/F Far East Consortium Office of Management and Budget proposed rulemaking and an Building, 121 Des Voeux Road C, (OMB) Control Number. This regulation opportunity for public comment be Central District, Hong Kong; and involves collections previously given for this rule. Room 402–403, 4/F, Hong Kong approved by OMB under control For the two removals from the Entity Trade Centre, 161–167 Des Voeux number 0694–0088, Simplified Network List in this final rule, pursuant to the Road, Central, Hong Kong. Application Processing System, which Administrative Procedure Act (APA), 5 includes, among other things, license U.S.C. 553(b)(B), BIS finds good cause to Savings Clause applications and carries a burden waive requirements that this rule be Shipments of items removed from estimate of 43.8 minutes for a manual or subject to notice and the opportunity for eligibility for a License Exception or electronic submission. Total burden public comment because it would be export or reexport without a license hours associated with the PRA and contrary to the public interest. (NLR) as a result of this regulatory OMB control number 0694–0088 are not In determining whether to grant action that were en route aboard a expected to increase as a result of this removal requests from the Entity List, a carrier to a port of export or reexport, on rule. You may send comments regarding committee of U.S. Government agencies November 12, 2015, pursuant to actual the collection of information associated (the End-User Review Committee (ERC)) orders for export or reexport to a foreign with this rule, including suggestions for evaluates information about and destination, may proceed to that reducing the burden, to Jasmeet K. commitments made by listed persons destination under the previous Seehra, Office of Management and requesting removal from the Entity List, eligibility for a License Exception or Budget (OMB), by email to Jasmeet_K._ the nature and terms of which are set

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forth in 15 CFR part 744, Supplement Administration Act), BIS is restricted FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. No. 5, as noted in 15 CFR 744.16(b). The from sharing with the public. Moreover, 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. information, commitments, and criteria removal requests from the Entity List 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 for this extensive review were all contain confidential business Comp., p. 228; E.O. 13099, 63 FR 45167, 3 established through the notice of information, which is necessary for the CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. proposed rulemaking and public extensive review conducted by the U.S. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. comment process (72 FR 31005 (June 5, Government in assessing such removal 786; Notice of September 17, 2014, 79 FR 2007) (proposed rule), and 73 FR 49311 requests. 56475 (September 19, 2014); Notice of (August 21, 2008) (final rule)). These Section 553(d) of the APA generally November 7, 2014, 79 FR 67035 (November two removals have been made within provides that rules may not take effect 12, 2014); Notice of January 21, 2015, 80 FR the established regulatory framework of earlier than thirty (30) days after they 3461 (January 22, 2015); Notice of August 7, the Entity List. One of the entities are published in the Federal Register. 2015, 80 FR 48233 (August 11, 2015); Notice removed by this rule no longer exists. If BIS finds good cause to waive the 30- of September 18, 2015, 80 FR 57281 the rule were to be delayed to allow for day delay in effectiveness under 5 (September 22, 2015). public comment, U.S. exporters may U.S.C. 553(d)(1) because this rule is a ■ 2. Supplement No. 4 to part 744 is face unnecessary economic losses as substantive rule which relieves a amended: they turn away potential sales to the restriction. This rule’s removal of two ■ a. By adding under China, in other entity removed by this rule persons from the Entity List removes a alphabetical order, three Chinese because the customer remained a listed requirement (the Entity-List-based entities; license requirement and limitation on person on the Entity List even after the ■ b. By revising under China, one use of license exceptions) on these two ERC approved the removal pursuant to Chinese entity, ‘‘China Electronics persons being removed from the Entity the rule published at 73 FR 49311 on Technology Group Corporation 29 List. The rule does not impose a August 21, 2008. By publishing without (CETC 29) Research Institute’’; prior notice and comment, BIS allows requirement on any other person for ■ c. By removing under China, one the applicant to receive U.S. exports these two removals from the Entity List. Chinese entity, ‘‘Weihai New Era immediately since the applicant already No other law requires that a notice of Chemical Industrial Company Limited, has received approval by the ERC proposed rulemaking and an No. 985 Fenghua Shan Road, Yangting pursuant to 15 CFR part 744, opportunity for public comment be New Industrial District, Huancui Supplement No. 5, as noted in 15 CFR given for this final rule. Because a District, Weihai, China.’’; 744.16(b). notice of proposed rulemaking and an The removal from the Entity List as a opportunity for public comment are not ■ d. By adding under Hong Kong, in result of a removal request granted by required under the APA or by any other alphabetical order, seven Hong Kong the ERC or for other reasons involve law, the analytical requirements of the entities; interagency deliberation and result from Regulatory Flexibility Act (5 U.S.C. 601 ■ e. By revising under Hong Kong, nine review of public and non-public et seq.) are not applicable. As a result, Hong Kong entities, ‘‘Biznest, LTD’’, sources, including sensitive law no final regulatory flexibility analysis is ‘‘Giant Base Asia Limited’’, ‘‘Jadeshine enforcement information and classified required and none has been prepared. Engineering (HK) Co.’’, ‘‘JLD Technology’’, ‘‘Kinglead Electronics Co., information, and the measurement of List of Subjects in 15 CFR Part 744 such information against the Entity List Ltd.’’, ‘‘PRC Lode Technology removal criteria. This information is Exports, Reporting and recordkeeping Company’’, ‘‘Serko Limited’’, ‘‘Tex-Co extensively reviewed, including requirements, Terrorism. Logistics Ltd.’’, ‘‘Yeraz, LTD’’; and according to the criteria for evaluating Accordingly, part 744 of the Export ■ f. By removing under Hong Kong, one removal requests from the Entity List, as Administration Regulations (15 CFR Hong Kong entity, ‘‘Able City set out in 15 CFR part 744, Supplement parts 730–774) is amended as follows: Development Limited, Unit C, 9/F Neich No. 5 and 15 CFR 744.16(b). For reasons Tower, 128 Gloucester Road, Wanchai, of national security, BIS is not at liberty PART 744—[AMENDED] Hong Kong; and Unit 401, Harbour Ctr., to provide to the public detailed ■ 1. The authority citation for 15 CFR Tower 2, 8 Hok Cheung Street, Hung information on which the ERC relied to part 744 continues to read as follows: Hom, Kowloon, Hong Kong.’’ make the decisions to remove these two The additions and revisions read as entities. In addition, the information Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; follows: included in the removal request is 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 information exchanged between the Supplement No. 4 to Part 744—Entity U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, List applicant and the ERC, which by law 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, (section 12(c) of the Export 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 * * * * *

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Federal Country Entity License requirement License Register review policy citation

******* China, People’s Republic of

******* China Electronics Technology Group For all items subject to Presumption of denial ... 79 FR 44680, 8/1/2014. Corporation 29 (CETC 29) Re- the EAR. (See 80 FR [INSERT FR search Institute, a.k.a., the fol- § 744.11 of the EAR). PAGE NUMBER], lowing ten aliases: 11/12/2015. —CETC 29th Research Institute; —China Southwest Electronic Equipment Research Institute (SWIEE); —29 (SIWEI Co) Institute; —SIWI Electronics Corporation; —Chengdu SIWI Electronics Inc.; —Chengdu SIWEI Electronics Com- pany; —Chengdu 29 Institute; —Si Wei Company 29th Institute; —SIWI Group; and —Southwest China Institute of Elec- tronics No. 496 West Yingkang Road, Chengdu, Sichuan Province 610036, China; and Box #429, #1 Waixichadianziheng Street, Chengdu, Sichuan Province 610036, China; and 5 Cheng Wen Road, Chengdu, China 610036; and No.3 Research Department, Zhongdian, China; and No. 29 In- stitute, Waixi Chadi, Chengdu, China; and No.81 BaiChao Road, XiPu Town, PiXian County, Chengdu, China; and Siwei Elec- tron Mansion, Xiejiasi, Qingyang, Chengdu, China; and 1 Hengjie Chadianzi Western Suburb, Chengdu, China.

******* Sky Rise Technology Ltd., a.k.a., For all items subject to Presumption of denial ... 80 FR [INSERT FR the following one alias: the EAR. (See PAGE NUMBER], —Sky Rise Tech § 744.11 of the EAR). 11/12/2015. 4–4–2301 Xinyi Jiayuan, Chongwenmen, Dongcheng, Bei- jing, China (See also addresses under Hong Kong).

******* TiMi Technologies Co., Ltd., a.k.a., For all items subject to Presumption of denial ... 80 FR [INSERT FR the following two aliases: the EAR. (See PAGE NUMBER], —TiMi Technology Co. Ltd § 744.11 of the EAR). 11/12/2015. —TiMi Tech F/10, A-Tower, Nongke Building, 11/ Shu Guang Hua Yuan Zhong Lu, Haidian District, Beijing, China, 100097; and Nanhai Avenue, Nanshan District, 518054, Shenzhen, China (See also ad- dresses under Hong Kong)

******* Wang Wei, a.k.a., the following one For all items subject to Presumption of denial ... 80 FR [INSERT FR alias: the EAR. (See PAGE NUMBER], —Jack Wang § 744.11 of the EAR). 11/12/2015.

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Federal Country Entity License requirement License Register review policy citation

4–4–2301 Xinyi Jiayuan, Chongwenmen, Dongcheng, Bei- jing, China; and F/10, A-Tower, Nongke Building, 11/Shu Guang Hua Yuan Zhong Lu, Haidian Dis- trict, Beijing, China, 100097 (See also addresses under Hong Kong)

******* Hong Kong ...... 32Group China Ltd., Room 1905, For all items subject to Presumption of denial ... 80 FR [INSERT FR 19/F, Nam Wo Hong Bldg., 148 the EAR. (See PAGE NUMBER], Wing Lok Street, Sheung Wang, § 744.11 of the EAR). 11/12/2015. Hong Kong; and Room 1119, 11/ F, Block B, Yau Tong Industrial City, 17 Ko Fai Road, Yau Tong, Kowloon, Hong Kong.

******* Biznest, LTD, Room 927 9/F Far For all items subject to Presumption of denial ... 76 FR 44259, 7/25/11. East Consortium Building, 121 the EAR. (See 80 FR [INSERT FR Des Voeux Road C, Central Dis- § 744.11 of the EAR). PAGE NUMBER], trict, Hong Kong; and 4/F, Hong 11/12/2015. Kong Trade Centre, 161–167 Des Voeux Road, Central, Hong Kong.

******* Caprice Group Ltd., Room 1119, 11/ For all items subject to Presumption of denial ... 80 FR [INSERT FR F, Block B1, Yau Tong Industrial the EAR. (See PAGE NUMBER], City, 17 Ko Fai Road, Yau Tong, § 744.11 of the EAR). 11/12/2015. Kowloon, Hong Kong; and Unit B1, G/F Pioneer Building, 213 Wai Yip St., Kwun Tong, Kowloon, Hong Kong; and Unit A, G/F, Pio- neer Building, 213 Wai Yip St., Kwun Tong, Kowloon, Hong Kong.

******* Giant Base Asia Limited, Room For all items subject to Presumption of denial ... 78 FR 18808, 03/28/13. 2205, 22/F, Kowloon Building, 555 the EAR. (See 80 FR [INSERT FR Nathan Road, Hong Kong; and § 744.11 of the EAR). PAGE NUMBER], Flat E, Block 1, 12/F, Superluck 11/12/2015. Industrial Centre, Tsuen Wan, New Territories, Hong Kong.

******* Kitronix Display, Unit B1, G/F, Pio- For all items subject to Presumption of denial ... 80 FR [INSERT FR neer Building, 213 Wai Yip St., the EAR. (See PAGE NUMBER], Kwun Tong, Kowloon, Hong Kong. § 744.11 of the EAR). 11/12/2015.

******* Jadeshine Engineering (HK) Co., For all items subject to Presumption of denial ... 78 FR 18808, 03/28/13. Room 702, Boss Commercial the EAR. (See 80 FR [INSERT FR Centre, Ferry Street 38, Kowloon, § 744.11 of the EAR). PAGE NUMBER], Hong Kong; and G/F BLK C 255 11/12/2015. Sai Tau Wai DD 123 Lot 1307 Yuen Long, NT, Hong Kong.

******* JLD Technology, Hong Kong Co., For all items subject to Presumption of denial ... 79 FR 32441, 6/5/14. Ltd., Room 1237, Pacific Trade the EAR. (See 80 FR [INSERT FR Centre, No. 2 Kai Hing Road, § 744.11 of the EAR). PAGE NUMBER], Kowloon Bay, Hong Kong; and 11/12/2015. Room 301–2, Hang Seng Wanchai Building, 3rd Floor, No. 200 Hennessy Road, Wanchai, Hong Kong.

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Federal Country Entity License requirement License Register review policy citation

******* Kinglead Electronics Co., Ltd., For all items subject to Presumption of denial ... 79 FR 32441, a.k.a., the following four aliases: the EAR. (See 6/5/14. —Kinglead InternationalTrading; § 744.11 of the EAR). 80 FR [INSERT FR —Kinglead Trading; PAGE NUMBER], —Kinglead International Trading 11/12/2015. Limited; and —Phonide Electronics Limited Room 1041 Pacific Trade Center, No. 2 Kai Hing Road, Kowloon Bay, Hong Kong; and B5–3, 29/F, Legend Tower, 7 Shing Yip Street, Kwun Tong, Kowloon, Hong Kong (See alternate ad- dress under China).

******* PRC Lode Technology Company, For all items subject to Presumption of denial ... 79 FR 44680, 8/1/2014. a.k.a., the following one alias: the EAR. (See 80 FR [INSERT FR —Lode International Limited. § 744.11 of the EAR). PAGE NUMBER], Room 1019–1020 Nan Fung Centre, 11/12/2015. 264–298 Castle Peak Road, Tsuen Wan New Territories, Hong Kong; and Room 1522 Nan Fung Centre, 264–298 Castle Peak Road, Tsuen Wan New Terri- tories, Hong Kong (See alternate addresses under China).

******* Reekay Technology Ltd., a.k.a., the For all items subject to Presumption of denial ... 80 FR [INSERT FR following one alias: the EAR. (See PAGE NUMBER], —Reekay Technology. Suite 502, § 744.11 of the EAR). 11/12/2015. 5th Floor Arion Commercial Cen- tre, No. 2–12 Queens Road West, Sheung Wan, Hong Kong

******* Serko Limited, Room 704 7/F, For all items subject to Presumption of denial ... 77 FR 61249, 10/9/12. Landwide Commercial Building, the EAR. (See 80 FR [INSERT FR 118–120 Austin Rd, Tsim Sha § 744.11 of the EAR). PAGE NUMBER], Tsui, Hong Kong; and Room 11/12/2015. 1509, Unit A, 15th Floor, Mai Shun Industrial Building, No. 18– 24 Kwai Cheong Road, New Terri- tories, Hong Kong.

******* Sky Rise Technology Ltd., a.k.a., For all items subject to Presumption of denial ... 80 FR [INSERT FR the following one alias: the EAR. (See PAGE NUMBER], —Sky Rise Tech. § 744.11 of the EAR). 11/12/2015. Room 1905, 19/F, Nam Wo Hong Bldg., 148 Wing Lok Street, Sheung Wang, Hong Kong; and Room 1118, 11/F, Block B1, Yau Tong Industrial City, 17 Ko Fai Road, Yau Tong, Kowloon, Hong Kong; and Room 1119, 11/F, Block B, Yau Tong Industrial City, 17 Ko Fai Road, Yau Tong, Kowloon, Hong Kong (See also address under China).

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Federal Country Entity License requirement License Register review policy citation

******* Tex-Co Logistics Ltd., a.k.a., the fol- For all items subject to Presumption of denial ... 75 FR 7358, lowing one alias: the EAR. (See 2/19/10. —Tex-Co Hongxin Logistics Limited. § 744.11 of the EAR). 80 FR [INSERT FR GF Seapower Industrial Building PAGE NUMBER], 177, Hoi Bun Road, Kowloon, 11/12/2015. Hong Kong, and Room 2202, 22F, Causeway Bay Plaza 1, 489 Hennessey Road, Causeway Bay, Hong Kong, and Room B03, 6/F, Cheong Wah Factory Building, 39–41 Sheung Heung Road, Tokwawan, Kowloon, Hong Kong; and Room G, 6/F Winner Building, 36 Man Yue Street, Hung Hom, Kowloon. TiMi Technologies Co., Ltd., a.k.a., For all items subject to Presumption of denial ... 80 FR [INSERT FR the following two aliases: the EAR. (See PAGE NUMBER], —TiMi Technology Co. Ltd. § 744.11 of the EAR). 11/12/2015. —TiMi Tech. Room 1119, 11/F, Block B, Yau Tong Industrial City, 17 Ko Fai Road, Yau Tong, Kowloon, Hong Kong; and Room 1118, 11/F, Block B1, Yau Tong Industrial City, 17 Ko Fai Road, Yau Tong, Kowloon, Hong Kong; and Unit A, G/F, Pioneer Building, 213 Wai Yip St., Kwun Tong, Kowloon, Hong Kong; and Room 1905, 19/F, Nam Wo Hong Bldg., 148 Wing Lok Street, Sheung Wang, Hong Kong (See also addresses under China).

******* Wang Wei, a.k.a., the following one For all items subject to Presumption of denial ... 80 FR [INSERT FR alias: the EAR. (See PAGE NUMBER], —Jack Wang. § 744.11 of the EAR). 11/12/2015. Room 1905, 19/F, Nam Wo Hong Bldg., 148 Wing Lok Street, Sheung Wang, Hong Kong; and Room 1118, 11/F, Block B, Yau Tong Industrial City, 17 Ko Fai Road, Yau Tong, Kowloon, Hong Kong; and Room 1119, 11/F, Block B, Yau Tong Industrial City, 17 Ko Fai Road, Yau Tong, Kowloon, Hong Kong (See also addresses under China).

******* Yeraz, LTD, a.k.a., the following one For all items subject to Presumption of denial ... 76 FR 44259, 7/25/11. alias: the EAR. (See 80 FR [INSERT FR —Mikrocity HK Limited. § 744.11 of the EAR). PAGE NUMBER], Room 927 9/F Far East Consortium 11/12/2015. Building, 121 Des Voeux Road C, Central District, Hong Kong; and Room 402–403, 4/F, Hong Kong Trade Centre, 161–167 Des Voeux Road, Central, Hong Kong.

*******

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Dated: November 5, 2015. respectively, and are collectively at the request of the Assistant Secretary Kevin J. Wolf, referred to as the ‘‘Controlled of the HHS and imposes the regulatory Assistant Secretary for Export Substances Act’’ or the ‘‘CSA’’ for the controls and administrative, civil, and Administration. purpose of this action. The DEA criminal sanctions applicable to [FR Doc. 2015–28552 Filed 11–10–15; 8:45 am] publishes the implementing regulations controlled substances, including those BILLING CODE 3510–33–P for these statutes in title 21 of the Code specific to schedule IV controlled of Federal Regulations (CFR), chapter II. substances, on persons who handle or The CSA and its implementing propose to handle eluxadoline. regulations are designed to prevent, DEPARTMENT OF JUSTICE Background detect, and eliminate the diversion of Drug Enforcement Administration controlled substances and listed Eluxadoline (5-[[[(2S)-2-amino-3-[4- chemicals into the illicit market while aminocarbonyl)-2,6-dimethylphenyl]-1- 21 CFR Part 1308 ensuring an adequate supply is available oxopropyl][(1S)-1-(4-phenyl-1H- for the legitimate medical, scientific, imidazol-2-yl)ethyl]amino]methyl]-2- [Docket No. DEA–419F] research, and industrial needs of the methoxybenzoic acid), is a new Schedules of Controlled Substances: United States. Controlled substances molecular entity with central nervous Placement of Eluxadoline Into have the potential for abuse and system opioid properties. Eluxadoline Schedule IV dependence and are controlled to has mixed mu opioid receptor (MOR) protect the public health and safety. and kappa opioid receptor (KOR) AGENCY: Drug Enforcement Under the CSA, each controlled agonist and delta opioid receptor (DOR) Administration, Department of Justice. substance is classified into one of five antagonist properties. The Food and ACTION: Final rule. schedules based upon its potential for Drug Administration (FDA) approved abuse, its currently accepted medical eluxadoline (brand name ‘‘VIBERZI’’) as SUMMARY: With the issuance of this final use in treatment in the United States, a prescription drug for the treatment of rule, the Administrator of the Drug and the degree of dependence the irritable bowel syndrome with diarrhea Enforcement Administration places the substance may cause. 21 U.S.C. 812. The (IBS–D) on May 27, 2015. substance 5-[[[(2S)-2-amino-3-[4- initial schedules of controlled DEA and HHS Eight Factor Analyses aminocarbonyl)-2,6-dimethylphenyl]-1- substances established by Congress are oxopropyl][(1S)-1-(4-phenyl-1H- found at 21 U.S.C. 812(c), and the On May 5, 2015, the HHS provided imidazol-2-yl)ethyl]amino]methyl]-2- current list of controlled substances is the DEA with a scientific and medical methoxybenzoic acid (eluxadoline), published at 21 CFR part 1308. evaluation document prepared by the including its salts, isomers, and salts of Pursuant to 21 U.S.C. 811(a)(1), the FDA entitled ‘‘Basis for the isomers, into schedule IV of the Attorney General may, by rule, ‘‘add to Recommendation to Place Eluxadoline Controlled Substances Act. This such a schedule or transfer between in Schedule IV of the Controlled scheduling action is pursuant to the such schedules any drug or other Substances Act.’’ After considering the Controlled Substances Act which substance if he (A) finds that such drug eight factors in 21 U.S.C. 811(c), requires that such actions be made on or other substance has a potential for including consideration of the the record after opportunity for a abuse, and (B) makes with respect to substance’s abuse potential, legitimate hearing through formal rulemaking. such drug or other substance the medical use, and dependence liability, This action imposes the regulatory findings prescribed by [21 U.S.C. 812(b)] the Assistant Secretary of the HHS controls and administrative, civil, and for the schedule in which such drug is recommended that eluxadoline be criminal sanctions applicable to to be placed * * *.’’ The Attorney controlled in schedule IV of the CSA. In schedule IV controlled substances on General has delegated scheduling response, the DEA completed its own persons who handle (manufacture, authority under 21 U.S.C. 811 to the eight-factor analysis of eluxadoline. distribute, dispense, import, export, Administrator of the DEA. 28 CFR Both the DEA and HHS analyses and engage in research, conduct 0.100. other relevant documents are available instructional activities, or possess) or The CSA provides that proceedings in their entirety in the public docket of propose to handle eluxadoline. for the issuance, amendment, or repeal this rule (Docket Number DEA–419) at DATES: Effective date: December 17, of the scheduling of any drug or other http://www.regulations.gov under 2015. substance may be initiated by the ‘‘Supporting Documents.’’ 2 Attorney General (1) on her own FOR FURTHER INFORMATION CONTACT: John Determination to Schedule Eluxadoline R. Scherbenske, Office of Diversion motion; (2) at the request of the After a review of the available data, Control, Drug Enforcement Secretary of the Department of Health 1 including the scientific and medical Administration; Mailing Address: 8701 and Human Services (HHS); or (3) on evaluation and the scheduling Morrissette Drive, Springfield, Virginia the petition of any interested party. 21 recommendation from the HHS, the 22152, Telephone: (202) 598–6812. U.S.C. 811(a). This action was initiated Administrator of the DEA published in SUPPLEMENTARY INFORMATION: 1 As set forth in a memorandum of understanding the Federal Register a notice of Legal Authority entered into by the Food and Drug Administration proposed rulemaking (NPRM) entitled (FDA) and the National Institute on Drug Abuse ‘‘Schedules of Controlled Substances: The Drug Enforcement (NIDA), the FDA acts as the lead agency within the Placement of Eluxadoline into Schedule Administration (DEA) implements and HHS in carrying out the Secretary’s scheduling responsibilities under the CSA, with the enforces titles II and III of the concurrence of NIDA. 50 FR 9518, Mar. 8, 1985. 2 Although the published notice of proposed Comprehensive Drug Abuse Prevention The Secretary of the HHS has delegated to the rulemaking stated that such items had been placed and Control Act of 1970, as amended. 21 Assistant Secretary for Health of the HHS the into the docket on regulations.gov, the U.S.C. 801–971. Titles II and III are authority to make domestic drug scheduling Administration discovered in preparing this final recommendations. 58 FR 35460, July 1, 1993. rule that the HHS analysis had in fact not been referred to as the ‘‘Controlled Accordingly, all subsequent references to posted. However, that document was available for Substances Act’’ and the ‘‘Controlled ‘‘Secretary’’ have been replaced with ‘‘Assistant review at DEA. The DEA posted the cited analysis Substances Import and Export Act,’’ Secretary.’’ to regulations.gov upon discovery of the error.

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IV’’ which proposed placement of factual basis to meet the requirements of (1) 5-[[[(2S)-2-amino-3-[4- eluxadoline in schedule IV of the CSA. Factor 5 (the scope, duration, and aminocarbonyl)-2,6-dimethylphenyl]-1- 80 FR 48044, August 11, 2015. The significance of abuse). The legislative oxopropyl][(1S)-1-(4-phenyl-1H- proposed rule provided an opportunity history of the CSA provides guidance imidazol-2-yl)ethyl]amino]methyl]-2- for interested persons to file a request regarding the assessment of a new methoxybenzoic acid (eluxadoline) has for hearing in accordance with DEA drug’s potential for abuse. The a low potential for abuse relative to the regulations by September 10, 2015. No legislative history of the CSA provides drugs or other substances in schedule requests for such a hearing were that a substance may have a potential III. The overall abuse potential of received by the DEA. The NPRM also for abuse if: ‘‘The drug or drugs eluxadoline is comparable to schedule provided an opportunity for interested containing such a substance are new IV substances such as pentazocine and persons to submit written comments on drugs so related in their action to a drug butorphanol; the proposal on or before September 10, or drugs already listed as having a (2) 5-[[[(2S)-2-amino-3-[4- 2015. potential for abuse to make it likely that aminocarbonyl)-2,6-dimethylphenyl]-1- the drug will have the same potentiality oxopropyl][(1S)-1-(4-phenyl-1H- Comments Received for abuse as such drugs, thus making it imidazol-2-yl)ethyl]amino]methyl]-2- The DEA received two comments on reasonable to assume that there may be methoxybenzoic acid (eluxadoline) has the proposed rule to schedule significant diversions from legitimate a currently accepted medical use in eluxadoline. One commenter supported channels, significant use contrary to or treatment in the United States. Recently, controlling eluxadoline as a schedule IV without medical advice, or that it has a the FDA approved eluxadoline as a controlled substance. One commenter substantial capability of creating prescription drug for the treatment of opposed the control of eluxadoline as a hazards to the health of the user or to IBS–D. Therefore, eluxadoline has a schedule IV substance, and suggested it the safety of the community.’’ currently accepted medical use in be controlled as a schedule V substance Comprehensive Drug Abuse Prevention treatment in the United States; and instead. and Control Act of 1970, H.R. Rep. No. (3) Abuse of 5-[[[(2S)-2-amino-3-[4- Support for the Proposed Rule. One 91–1444 (1970); as reprinted in 1970 aminocarbonyl)-2,6-dimethylphenyl]-1- commenter agreed with the DEA’s U.S.C.C.A.N. 4566, 4601. As discussed oxopropyl][(1S)-1-(4-phenyl-1H- proposal to control eluxadoline as a in the HHS and the DEA eight-factor imidazol-2-yl)ethyl]amino]methyl]-2- schedule IV controlled substance, and analyses, both pre-clinical and clinical methoxybenzoic acid (eluxadoline) may stated that the public health studies indicate eluxadoline shares lead to limited psychological (specifically, an unmet medical need) pharmacological similarities with dependence similar to that of schedule necessitates an immediate effective date schedule IV drugs such as butorphanol IV drugs, but less than that of schedule for the final order controlling and pentazocine and has similar abuse III drugs. eluxadoline. potential. Based on these findings, the DEA Response. The DEA appreciates In addition, the HHS and DEA eight- Administrator of the DEA concludes the comment in support of this factor analyses support the finding that that eluxadoline, including its salts, rulemaking. Generally, DEA scheduling the overall abuse potential of isomers, and salts of isomers, warrants actions are effective 30 days from the eluxadoline is comparable to schedule control in schedule IV of the CSA. 21 date of publication of the final rule in IV substances such as pentazocine and U.S.C. 812(b)(4). the Federal Register. 21 CFR 1308.45; butorphanol. This indicates that Requirements for Handling Eluxadoline see also 5 U.S.C. 553(d). The DEA placement in schedule IV is appropriate believes that providing 30 days for this rather than schedule V. Upon the effective date of this final rule to become effective is both rule, any person who handles expeditious and sufficient to allow Scheduling Conclusion eluxadoline is subject to the CSA’s handlers to comply with regulatory Based on consideration of all schedule IV regulatory controls and requirements for handling Schedule IV comments, the scientific and medical administrative, civil, and criminal controlled substances. Both the HHS’ evaluation and accompanying sanctions applicable to the manufacture, and the DEA’s scientific and medical recommendation of the HHS, and the distribution, dispensing, importing, analyses, the data collectively suggest DEA’s consideration of its own eight- exporting, engagement in research, and that eluxadoline does have sufficient factor analysis, the Administrator finds conduct of instructional activities, of abuse potential and the DEA does not that these facts and all relevant data schedule IV controlled substances agree that eluxadoline’s effective date demonstrate substantial evidence of including the following: should be the date of publication of the potential for abuse of eluxadoline. As 1. Registration. Any person who final rule. such, the DEA is scheduling eluxadoline handles (manufactures, distributes, Opposition to the Proposed Rule. One as a controlled substance under the dispenses, imports, exports, engages in commenter opposed the proposal to CSA. research, or conducts instructional control eluxadoline as a schedule IV activities with) eluxadoline, or who controlled substance, stating ‘‘I do not Determination of Appropriate Schedule desires to handle eluxadoline, must be think that eluxadoline meets the factor The CSA establishes five schedules of registered with the DEA to conduct such [5] requirements for scheduling under controlled substances known as activities, pursuant to 21 U.S.C. 822, schedule IV due to there being no schedules I, II, III, IV, and V. The CSA 823, 957, and 958, and in accordance general widespread use throughout outlines the findings required for with 21 CFR parts 1301 and 1312 as of other countries.’’ The commenter also placing a drug or other substance in any December 14, 2015. Any person who stated that the best approach would be particular schedule. 21 U.S.C. 812(b). currently handles eluxadoline and is not to place eluxadoline in schedule V, After consideration of the analysis and registered with the DEA must submit an rather than schedule IV. recommendation of the Assistant application for registration and may not DEA Response. Although eluxadoline Secretary for Health of the HHS and continue to handle eluxadoline as of is a new chemical entity and review of all available data, the December 14, 2015 unless the DEA has information on actual abuse is not Administrator of the DEA, pursuant to approved that application, pursuant to currently available, there is a sufficient 21 U.S.C. 812(b)(4), finds that: 21 U.S.C. 822, 823, 957, and 958, and

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in accordance with 21 CFR parts 1301 Regulatory Analyses various DEA registrant business activity and 1312. classes. Executive Orders 12866 and 13563 2. Security. Eluxadoline is subject to Eluxadoline is a new molecular entity In accordance with 21 U.S.C. 811(a), which has not yet been marketed in the schedule III–V security requirements this scheduling action is subject to United States or any other country. The and must be handled and stored formal rulemaking procedures done ‘‘on DEA has no basis to determine the level pursuant to 21 U.S.C. 823 and in the record after opportunity for a of contracted or outsourced accordance with 21 CFR 1301.71– hearing,’’ which are conducted pursuant manufacturing activities or the breadth 1301.93, as of December 14, 2015. to the provisions of 5 U.S.C. 556 and of the distribution network. 3. Labeling and Packaging. All labels, 557. The CSA sets forth the criteria for Furthermore, due to the wide variety of labeling, and packaging for commercial scheduling a drug or other substance. unidentifiable and unquantifiable containers of eluxadoline must comply Such actions are exempt from review by variables that could potentially with 21 U.S.C. 825 and 958(e) and be in the Office of Management and Budget influence the dispensing and accordance with 21 CFR part 1302, as of pursuant to section 3(d)(1) of Executive distribution rates of new pharmaceutical December 14, 2015. Order 12866 and the principles drugs, the DEA is unable to determine 4. Inventory. Every DEA registrant reaffirmed in Executive Order 13563. the number of potential small entities that might handle eluxadoline. who possesses any quantity of Executive Order 12988 eluxadoline on the effective date of this However, the DEA estimates that all final rule must take an inventory of all This regulation meets the applicable persons who would handle, or propose stocks of eluxadoline on hand as of standards set forth in sections 3(a) and to handle, eluxadoline are currently December 14, 2015, pursuant to 21 3(b)(2) of Executive Order 12988 Civil registered with the DEA to handle Justice Reform to eliminate drafting U.S.C. 827 and 958, and in accordance schedule IV controlled substances, errors and ambiguity, minimize with 21 CFR 1304.03, 1304.04, and because it is a pharmaceutical litigation, provide a clear legal standard controlled substance intended for 1304.11(a), (d), and (e). for affected conduct, and promote medical treatment. Accordingly, the Any person who becomes registered simplification and burden reduction. number of DEA registrations authorized with the DEA after November 12, 2015 to handle schedule IV controlled Executive Order 13132 must take an initial inventory of all substances is a reasonable estimate for stocks of controlled substances This rulemaking does not have the maximum number of eluxadoline (including eluxadoline) on hand on the federalism implications warranting the handlers. Therefore, the DEA estimates date the registrant first engages in the application of Executive Order 13132. that 1.6 million (1,554,254 as of June handling of controlled substances, The rule does not have substantial 2015) controlled substance registrations, pursuant to 21 U.S.C. 827 and 958 and direct effects on the States, on the representing approximately 427,584 in accordance with 21 CFR 1304.03, relationship between the national entities, would be the maximum 1304.04, and 1304.11(a), (b), and (e). government and the States, or the number of entities affected by this final After the initial inventory, every DEA distribution of power and rule. The DEA estimates that 418,141 registrant must take a new inventory of responsibilities among the various (97.8%) of 427,584 affected entities are all stocks of controlled substances levels of government. ‘‘small entities’’ in accordance with the (including eluxadoline) on hand every RFA and SBA size standards. Executive Order 13175 The DEA anticipates that prospective two years, pursuant to 21 U.S.C. 827 This rule does not have tribal eluxadoline handlers already handle and 958, and in accordance with 21 CFR implications warranting the application other schedule IV controlled substances 1304.03, 1304.04, and 1304.11. of Executive Order 13175. The rule does and that the cost impact as a result of 5. Records. All DEA registrants must not have substantial direct effects on placing eluxadoline in schedule IV maintain records with respect to one or more Indian tribes, on the would be nominal. As the anticipated eluxadoline pursuant to 21 U.S.C. 827 relationship between the Federal eluxadoline handlers already handle and 958(e), and in accordance with 21 government and Indian tribes, or on the other schedule IV controlled substances, CFR parts 1304 and 1312 and § 1307.11, distribution of power and they already have DEA registrations and as of December 14, 2015. responsibilities between the Federal the required security and recordkeeping 6. Prescriptions. All prescriptions for government and Indian tribes. processes, equipment, and facilities in place, and would only require a eluxadoline or products containing Regulatory Flexibility Act eluxadoline must comply with 21 U.S.C. nominal increase in security, inventory, 829, and be issued in accordance with The Administrator, in accordance recordkeeping and labeling costs. 21 CFR part 1306 and subpart C of 21 with the Regulatory Flexibility Act As discussed above, while the DEA CFR part 1311 as of December 14, 2015. (RFA), 5 U.S.C. 601–612, has reviewed does not have a basis to estimate the this final rule and by approving it number of affected entities, the DEA 7. Importation and Exportation. All certifies that it will not have a estimates that the maximum number of importation and exportation of significant economic impact on a affected entities is 427,584 of which eluxadoline must be in compliance with substantial number of small entities. 418,141 are estimated to be small 21 U.S.C. 952, 953, 957, and 958, and The purpose of this final rule is to place entities. Since the affected entities are be in accordance with 21 CFR part 1312 eluxadoline, including its salts, isomers, expected to handle other schedule IV as of December 14, 2015. and salts of isomers, into schedule IV of controlled substances and maintain 8. Liability. Any activity involving the CSA. No less restrictive measures security and recordkeeping facilities eluxadoline not authorized by, or in (i.e., non-control, or control in schedule and processes consistent with schedule violation of, the CSA, occurring as of V) enable the DEA to meet its statutory IV controlled substances, the DEA December 14, 2015 is unlawful, and obligations under the CSA. In preparing estimates any economic impact will be may subject the person to this certification, the DEA has assessed nominal. administrative, civil, and/or criminal economic impact by size category and Because of these facts, this final rule proceedings. has considered costs with respect to the will not result in a significant economic

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impact on a substantial number of small to patients with IBS–D and the obligations and expenditures of funds entities. eluxadoline NDA received priority for each specific fiscal year grant, rather review with FDA. Therefore, it is than track such information Unfunded Mandates Reform Act of 1995 unnecessary to delay the effective date cumulatively. In order to effectively The DEA has determined and certifies of this final rule by 30 days, and this implement this accounting change, pursuant to the Unfunded Mandates rule shall take effect immediately upon changes are needed to the regulations Reform Act of 1995 (UMRA), 2 U.S.C. publication. applicable to affected grants, such as the 1501 et seq., that this action would not program-specific regulations, List of Subjects in 21 CFR Part 1308 result in any Federal mandate that may consolidated plan regulations, and result ‘‘in the expenditure by State, Administrative practice and methods to calculate the cap on local, and tribal governments, in the procedure, Drug traffic control, administrative and planning expenses. aggregate, or by the private sector, of Reporting and recordkeeping While amending these regulations to $100,000,000 or more (adjusted for requirements. conform to and support this accounting inflation) in any one year * * *’’ For the reasons set out above, 21 CFR practice in applicable regulations, HUD Therefore, neither a Small Government part 1308 is amended to read as follows: is also making certain grammatical and Agency Plan nor any other action is other technical corrections in those required under provisions of UMRA. PART 1308—SCHEDULES OF regulations. CONTROLLED SUBSTANCES Paperwork Reduction Act of 1995 DATES: Effective date: December 14, This action does not impose a new ■ 1. The authority citation for 21 CFR 2015. Comment due date: January 11, 2016. collection of information requirement part 1308 continues to read as follows: under the Paperwork Reduction Act of ADDRESSES: Interested persons are Authority: 21 U.S.C. 811, 812, 871(b), invited to submit comments regarding 1995. 44 U.S.C. 3501–3521. This action unless otherwise noted. would not impose recordkeeping or this interim rule. Communications must reporting requirements on State or local ■ 2. Amend § 1308.14 by adding refer to the above docket number and governments, individuals, businesses, or paragraph (g)(3) to read as follows: title. There are two methods for submitting public comments. All organizations. An agency may not § 1308.14 Schedule IV. conduct or sponsor, and a person is not submissions must refer to the above * * * * * required to respond to, a collection of docket number and title. (g) * * * information unless it displays a 1. Submission of Comments by Mail. (3) Eluxadoline (5-[[[(2S)-2-amino-3- currently valid OMB control number. Comments may be submitted by mail to [4-aminocarbonyl)-2,6-dimethylphenyl]- the Regulations Division, Office of Congressional Review Act 1-oxopropyl][(1S)-1-(4-phenyl-1H- General Counsel, Department of This rule is not a major rule as imidazol-2-yl)ethyl]amino]methyl]-2- Housing and Urban Development, 451 defined by section 804 of the Small methoxybenzoic acid) (including its 7th Street SW., Room 10276, Business Regulatory Enforcement optical isomers) and its salts, isomers, Washington, DC 20410–0500. Fairness Act of 1996 (Congressional and salts of isomers (9725). 2. Electronic Submission of Review Act (CRA)). This rule will not Dated: November 5, 2015. Comments. Interested persons may result in: an annual effect on the Chuck Rosenberg, submit comments electronically through the Federal eRulemaking Portal at economy of $100,000,000 or more; a Acting Administrator. www.regulations.gov. HUD strongly major increase in costs or prices for [FR Doc. 2015–28718 Filed 11–10–15; 8:45 am] consumers, individual industries, encourages commenters to submit BILLING CODE P Federal, State, or local government comments electronically. Electronic agencies, or geographic regions; or submission of comments allows the significant adverse effects on commenter maximum time to prepare competition, employment, investment, DEPARTMENT OF HOUSING AND and submit a comment, ensures timely productivity, innovation, or on the URBAN DEVELOPMENT receipt by HUD, and enables HUD to make them immediately available to the ability of United States-based 24 CFR Parts 91 and 570 companies to compete with foreign- public. Comments submitted based companies in domestic and [Docket No. FR 5797–I–01] electronically through the export markets. However, pursuant to www.regulations.gov Web site can be RIN 2506–AC39 the CRA, the DEA has submitted a copy viewed by other commenters and interested members of the public. of this final rule to both Houses of Changes to Accounting Requirements Commenters should follow the Congress and to the Comptroller for the Community Development Block instructions provided on that site to General. Grants (CDBG) Program submit comments electronically. Administrative Procedure Act AGENCY: Office of the Assistant Note: To receive consideration as public The APA requires the publication of Secretary for Community Planning and comments, comments must be submitted a substantive rule to be made not less Development, HUD. through one of the two methods specified than 30 days before its effective date. 5 ACTION: Interim final rule. above. Again, all submissions must refer to U.S.C. 553(d). However, one exception the docket number and title of the rule. is ‘‘as otherwise provided by the agency SUMMARY: This rule makes several No Facsimile Comments. Facsimile for good cause found and published changes to the existing Community (fax) comments are not acceptable. with the rule.’’ As fully discussed above Development Block Grant (CDBG) Public Inspection of Public in response to the comment suggesting program regulations in order to better Comments. All properly submitted an immediate effective date, an track the use of grant funds and improve comments and communications immediate effective date is necessary in accounting procedures in the program. submitted to HUD will be available for this case because there are limited Through this rule, HUD requires public inspection and copying between therapeutic options currently available grantees to commence tracking the 8 a.m. and 5 p.m., weekdays, at the

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above address. Due to security measures income persons, prevent or eliminate annual grant that is the source of the at the HUD Headquarters building, an slums or blight, or address community funds. When creating an expenditure advance appointment to review the development needs having a particular voucher, HUD, through IDIS, will public comments must be scheduled by urgency because existing conditions disburse the funds according to the calling the Regulations Division at 202– pose a serious and immediate threat to specific annual grant that was obligated 402–3055 (this is not a toll-free the health or welfare of the community to that activity. number). Individuals with speech or for which other funding is not available. In order to complement and support hearing impairments may access this The regulations for the CDBG program this accounting change, conforming number via TTY by calling the Federal are codified in 24 CFR part 570 (entitled changes are needed to the regulations Relay Service, toll-free, at 800–877– ‘‘Community Development Block covering affected FY grants to reflect 8339. Copies of all comments submitted Grants’’). The regulations governing the this accounting practice, such as are available for inspection and CDBG annual plan and citizen clarifying which accounting practice is downloading at www.regulations.gov. participation requirements are codified utilized, revising records retention FOR FURTHER INFORMATION CONTACT: at 24 CFR part 91 (entitled requirements, and conforming the Stanley Gimont, Director, Office of ‘‘Consolidated Submissions for calculation of the cap on administrative Block Grant Assistance, Department of Community Planning and Development and planning expenses. Conforming Housing and Urban Development, Office Programs’’). changes are not only needed to the of Community Planning and B. CDBG Accounting Requirements CDBG regulations in 24 CFR part 570 Development, 451 7th Street SW., Suite but also to the CDBG planning and 7286, Washington, DC 20410 at 202– CDBG grants funds are currently citizen participation regulations in part 708–3587, (this is not a toll-free disbursed through the Integrated 91. In addition, certain grammatical and number). Individuals with speech or Disbursement and Information System other technical corrections need to be hearing impairments may access this (IDIS) on a ‘‘first-in, first-out’’ (FIFO) made to the CDBG regulations. number via TTY by calling the Federal basis. Under this methodology, CDBG The following section of this Information Relay Service, toll-free, at grantees do not designate a specific preamble provides a section-by-section 800–877–8339. fiscal year grant in IDIS when funding overview of the regulatory changes. an activity or when creating an SUPPLEMENTARY INFORMATION: expenditure voucher. In general, all II. This Interim Rule—Section-by- I. Background obligations and disbursements are Section Changes recorded against the earliest annual A. The CDBG Program Action Plans (§§ 91.220, 91.320, 91.325 grant with an available balance, thereby and 91.505) The CDBG program is a flexible exhausting the oldest grant available program that provides communities before recording expenditures against HUD revises those provisions with resources to address a wide range the next grant. regarding the CDBG program of unique community development Grantees’ accounting systems, on the components of the action plans for needs. The CDBG program provides other hand, typically track expenditures entitlements at § 91.220(l) and states at annual grants on a formula basis to units according to each annual grant. During § 91.320(l). The interim rule adds of general local government and States. any given time period, grantees expend clarifying language to reiterate that the The annual CDBG appropriation is funds from multiple grants for a range available resources for that annual allocated between metropolitan cities of activities that have a variety of action plan may include a variety of and urban counties, which are referred implementation schedules. sources of funding in addition to the to as ‘‘entitlement areas,’’ and States, Expenditures are incurred against more annual grant. which must distribute the funds to their recent grants for activities that are on For State CDBG recipients, HUD units of general local government, schedule; and, often simultaneously, clarifies § 91.320(l) to address program referred to as ‘‘nonentitlement areas.’’ expenditures are incurred against earlier income funds that are retained by units HUD determines the amount of each annual grants for activities that of general local government. By grant by using a formula comprised of experience acceptable delays. including locally retained program several measures of community need, These two distinct accounting income funds, such as general program including the extent of poverty, methods often complicate reconciliation income and revolving loan funds, the population, housing overcrowding, age between grantees’ accounting records State’s action plan will include all the of housing, and population growth lag. and IDIS’s FIFO records. The revised CDBG funds available throughout the A grantee must develop and follow a methodology will simplify State, regardless of whether those funds consolidated plan describing the reconciliation by aligning the are retained by the State or units of planned use of CDBG funds, which accounting practices used by HUD and general local government. includes a detailed plan that provides those used by grantees. For state CDBG recipients, HUD for and encourages citizen participation. HUD is cognizant that Fiscal Year amends § 91.325(b)(4)(ii), which This integral process emphasizes (FY) 2015 funding and formula provides that the State shall certify that participation by persons of low or allocations are underway, but the 70 percent of the amount expended moderate income, particularly residents revised methodology is now available shall principally benefit low- and of predominantly low- and moderate- and, through this rule, HUD directs moderate-income families, on a program income neighborhoods, slum or blighted CDBG grantees to commence using the year basis. This regulatory provision is areas, and areas in which the grantee revised methodology. For the FY 2015 inconsistent with § 570.484, which proposes to use CDBG funds. Not less and subsequent fiscal year grants, IDIS requires the same certification to be than 70 percent of CDBG funds must be will support grant-specific accounting. provided on an annual grant basis. used for activities that benefit low- and Therefore, as of the effective date of this Therefore, § 91.325(b)(4)(ii) is amended moderate-income persons. In addition, interim rule, when obligating funds to to be consistent with § 570.484. each funded activity must meet one of be expended for a CDBG activity (i.e., HUD amends § 91.505(a)(2) to clarify the following national objectives for the when funding an activity in IDIS), that an amendment would be necessary program: Benefit low- and moderate- grantees must identify the specific for the use of program income,

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repayments, or reallocations that were Entitlement Administration and income for planning and general not previously included in an action Planning Cap (§ 570.200) administration cost to support grantee plan. In annual appropriations acts, compliance with § 570.504(b)(2), which Congress limits the amount grantees requires that program income be Definition of Origin Year (§§ 570.3 and substantially disbursed before 570.481) may use for planning, management development, and administration to not withdrawals of grant funds from the more than 20 percent of each grant. United States Treasury. The interim rule adds a definition to The origin year grant test limits Under the FIFO method of accounting §§ 570.3 and 570.481(a)(3) for the term expenditures for planning and in IDIS, grantees would draw funds ‘‘origin year’’ to mean the Federal fiscal administrative costs against a given without distinguishing funds by origin year in which the annual grant funds origin year’s grant. For any given origin year, making the application of a 20 were appropriated. Current regulations year grant, compliance will be percent limit to any one grant use the term ‘‘grant year,’’ which has determined during the grant closeout. impractical for HUD to monitor. Current often been confused with a grantee’s For purposes of the second test, it does regulations at § 570.200(g) base the 20 program year. The term ‘‘origin year’’ is not matter when the funds were intended to reinforce specificity percent limit upon obligations in a obligated or expended. Beginning with concerning any one annual grant and given program year, relative to the origin year 2015 grants and with FY support grant-specific accounting. In amount of the most recent grant plus 2015 program years, grantees must addition to the new definition, the program income. Therefore, § 570.200(g) ensure that they comply with both tests. interim rule makes corresponding is revised to better reflect the limitations Grantees are cautioned that compliance imposed by annual appropriations acts. language changes throughout parts 91 with one test does not automatically Through this rule, HUD divides and 570. ensure compliance with the other test. § 570.200(g) into two distinct HUD recognizes that CDBG grantees Treasury Account Cancellations compliance tests. The current test, are administering programs that §§ 570.480(i) and 570.200(k) retained and redesignated typically have multiple grants open at § 570.200(g)(2), which determines any given time. The interim rule adds The interim rule adds §§ 570.480(i) compliance based upon obligations of language at § 570.200(g) to reiterate that and 570.200(k) to incorporate the both grant funds and program income, administration and planning costs requirements of 31 U.S.C. 1552, which will apply to all prior and future support the general operation of a states that on September 30 of the 5th program years. For grants made in FY grantee’s CDBG program, and thus are fiscal year after the period of availability 2015 and subsequent years, an not tied to any specific origin year or for obligation of a fixed appropriation additional test is included at CDBG grant. A grantee may use funds account ends, the United States § 570.200(g)(1), which would limit from any origin year grant for Treasury account shall be canceled and planning and administration administration and planning costs for any remaining balance (whether expenditures to no more than 20 percent any CDBG grant. This provision is obligated or unobligated) shall be of each separate origin year grant limited to only administration and canceled and therefore not available for (excluding program income). This new planning costs and does not include obligation or expenditure for any test will be used to determine staff and overhead costs directly related purpose. HUD’s obligation period for compliance with the annual to carrying out activities eligible under CDBG is typically 3 fiscal years, appropriations acts requirement at the § 570.201 through § 570.204, since those including the origin year (as stated in end of the grant. The key difference costs are eligible as part of such each annual appropriations act). HUD between the two tests is that the existing activities and allocable to specific origin obligates and makes the funds available test addresses program income and the year grants. new test does not. The reason that two to grantees as soon as possible, but has Eligible Activities: Public Services until the end of 3 fiscal years to do so. tests are necessary is because the existing test allows program income to (§ 570.201) For example, a CDBG grant appropriated be used in lieu of grant funds for for Fiscal Year 2015 must be obligated HUD revises regulations at § 570.201 planning, management development, by HUD by the end of Fiscal Year 2017, in order to clarify that the public service and administration costs, thereby cap determination is applicable to and any unexpended funds will be ensuring that grantees are compliant canceled and cease to be available on nonentitlement grantees in Hawaii and with the cash management principles recipients of insular area funds under September 30, 2022. HUD reserves the that require program income to be spent the CDBG program. right, however, to require an earlier ahead of draws of Treasury funds. expenditure and drawdown deadline These two tests measure different State CDBG Program Administrative under a grant agreement due to end-of- things over different time periods. The Requirements (§ 570.489) year accounting and timing issues. This existing test (the program year test) HUD revises the regulations for State provision is applicable to funds in the limits obligations of funds made by the administrative costs in § 570.489. grantee’s line of credit and any funds grantee during a program year. The Redundancies are removed and returned to the line of credit. However, amount of funds obligated for planning clarifying language is added to this statute does not apply to funds and administrative costs is limited to 20 § 570.489(a)(1)(i)(ii) and (iii) and repaid to a local account or program percent of the sum of the origin year § 570.489(e)(3). Current regulations at income deposited in a local account. grant amount for that program year plus § 570.489(a)(1)(v) allow State CDBG CDBG funds have rarely been canceled the amount of program income received grantees the option of using cumulative because the FIFO accounting method by the grantee (and all subrecipients) accounting of administrative costs, disperses funds from the oldest source during that program year. Compliance is consistent with the FIFO accounting grant first, and timely expenditure of determined at the end of each program method. Under the new grant-based grant funds would prevent the grantee year based on the grantee’s annual accounting, for origin year 2015 grants from having as many years’ worth of performance report submission. This and subsequent grants, State CDBG grant funds in its line of credit. test allows obligations of program grantees will no longer have the option

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of cumulative accounting of the State’s origin year’s grant or to program income administrative requirements in 2 CFR administrative costs and instead must received during a specific program year. part 200. These changes include a new use year-to-year tracking. The paragraph § 570.485(d) to clarify that Grant Closeout ProceduresÐEntitlement cumulative method will only continue HUD is authorized to establish specific CDBG (§§ 570.509, 570.513) to be available for State administrative conditions on grants to States in expenses charged to FY 2014 and prior The current regulations at § 570.509 accordance with 2 CFR 200.207; fiscal year grants. have primarily applied when an changes to § 570.489(g) to make clear HUD clarifies § 570.489(a)(3) to entitlement CDBG grantee discontinued that States can make subrecipient and explain how HUD determines its participation in the program as a contractor determinations in accordance compliance with the planning and grantee. The interim rule will now with 2 CFR 200.330; and a new administration cost cap. While this permit and necessitate close out of each paragraph § 570.489(o), which states provision is already grant-specific, the origin year grant from HUD. Starting that HUD will close out grants to States current calculation incorporates with FY 2015 origin year grants, each in accordance with 2 CFR 200.343. year’s grant will be closed out when all program income into the 20 percent III. Specific Issues for Comment administrative and planning cap. activity associated with the grant is Therefore, the interim rule clarifies the completed. HUD solicits and welcomes comments This necessitates several changes to compliance test at § 570.489(a)(3) by on all aspects of this interim rule. HUD the closeout process, which also result dividing it into multiple parts. Section also specifically solicits comment on the in conforming changes to other portions 570.489(a)(3)(i) describes administration following topics related to the of the regulations. The grant funds, as accounting methodology changes for costs for both States and units of general well as program income received during CDBG. HUD seeks the view of grantees, local government. Section the program year corresponding to the other program participants and 570.489(a)(3)(ii) maintains current grant’s origin year, must be fully interested members of the public. HUD language of the administrative and expended before the grant can be closed may, at a future date, offer regulatory planning cap, with added clarity. out. In addition, the grantee must enter changes addressing one or more of these Section 570.489(a)(3)(iii) adds a second final accomplishment data and all topics. compliance test based solely upon use activities on which those funds were of funds from each annual grant 1. Retention of Program Income by Local expended must be reported as (excluding program income) beginning Governments (§ 570.489(e)) completed in a final annual report. The with origin year 2015 and subsequent interim rule clarifies that, in order to HUD solicits comments about the years’ grants. The second compliance close out a grant, any unexpended revisions made to § 570.489(e)(3)(ii)(B) test will demonstrate compliance with program income received during the beyond those made by this interim rule. annual appropriations acts limiting the program year associated with the grant’s The intent of the section is to reinforce amount grantees may use for planning, origin year must be included in a the requirement that program income management development, and subsequent year’s action plan, thereby remains subject to CDBG requirements administration to not more than 20 rolling forward those available resources regardless of the status of any State percent of each grant. onto a more recent action plan with award to a unit of general local As noted under the discussion of ongoing activities. The funds will be government. The current language of changes made to § 570.200, HUD included in the section describing the this section uses terms such as ‘‘activity recognizes that CDBG grantees are CDBG funds available pursuant to closeout’’ and ‘‘grant close out’’, as well administering programs that typically § 91.220(l), thereby allowing that prior as concepts such as ‘‘part of the unit of have multiple grants open at any given origin year’s grant to be closed out. general local government’s grant’’ and time. Similar to the change made to In addition, the interim rule adds ‘‘part of the state’s program year,’’ and § 570.200(g), the interim rule revises closeout criteria based upon the changes this language may not reflect HUD’s § 570.489(a)(3)(iv) to reiterate that to the administration and planning cap intent as explicitly as contemplated by administration and planning costs at § 570.200(g). HUD. HUD therefore seeks comment on support the general operation of a The interim rule change regarding whether the regulatory language clearly grantee’s CDBG program, and thus are expenditure of associated program reflects HUD’s intent and, if not, what not tied to any specific origin year or income before grant closeout triggers revisions are recommended to better CDBG grant. A grantee may use funds corresponding changes to § 570.513, convey the intent of this section. from any origin year grant for lump sum drawdown. A grant cannot be 2. Limitations on Local Retention of administration and planning costs for closed out if grant funds or associated Program Income (§ 570.489(e)) any CDBG grant. This provision is program income remain unexpended in limited to only administration and a deposit account subject to an existing HUD seeks information that better planning costs and does not include lump sum drawdown agreement. The informs the nature of activities that staff and overhead costs directly related change to § 570.513 will require a continue with program income. For to carrying out other eligible activities, grantee to execute a new lump sum States that limit the local retention of since those costs are eligible as part of drawdown agreement covering any program income, what types of such activities and allocable to specific unexpended funds, and that program limitations do States place upon the origin year grants. income must be identified in the current definition of the ‘‘same activity’’? Do the Section 570.489(e)(3) is edited for program year action plan. limitations restrict the program income clarity and to remove redundancies. for the same activity in a very strict Minor and Technical Changes sense (i.e., limited to the same work, at Records To Be Maintained (§ 570.506) The interim rule makes minor the same address, with the same This rule adds language in § 570.506 changes to §§ 91.505, 570.206, 570.410, beneficiaries)? Do the limitations specifying that grantees’ records and 570.503 for regulatory and statutory generally reflect an activity type, such pertaining to obligations, expenditures, cross-references and grammar. The as housing rehabilitation; and, if so, and drawdowns must be able to relate interim rule also makes various what are the considerations for not financial transactions to either a specific technical changes to incorporate classifying this as a revolving loan fund?

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Do the limitations reflect multiple This interim rule does not establish under Executive Order 12866 (entitled activities that are bundled into a single new and unfamiliar requirements for ‘‘Regulatory Planning and Review’’). effort, such as a main street CDBG grantees. Rather the regulatory OMB determined that this rule was revitalization plan that might use changes eliminate administrative significant under the order, but not an program income from business loans for burden on grantees by aligning CDBG economically significant regulatory other activities in the vicinity, such as accounting methodology, as reflected in action. The docket file is available for fac¸ade and side walk improvements IDIS, with the grant accounting system public inspection in the Regulations along the same main street? Is tracking typically used by grantees, and the Division, Office of General Counsel, 451 and reporting the use of these funds standard accounting practice of keeping 7th Street SW., Room 10276, problematic, and what solutions have track of grant commitments and Washington, DC 20410–0500. Due to States found (especially for States that expenditures on an annual grant basis. security measures at the HUD do not limit the local retention of Although, under the current Headquarters building, please schedule program income)? regulations, Entitlement CDBG an appointment to review the docket file recipients have the option to track by calling the Regulations Division at 3. Entitlement Administration and expenditures in a cumulative manner, 202–402–3055 (this is not a toll-free Planning Cap (§§ 570.200 and HUD estimates that 80 to 90 percent of number). Individuals with speech or 570.201(e)) grantees adhere to the grant-specific hearing impairments may access this HUD has some flexibility in the accounting. In addition, the selection of number via TTY by calling the Federal manner program income applies to the the grant year is already required for Information Relay Service at 800–877– administration and planning cap at State CDBG recipients when requesting 8339. The docket file is available for § 570.200(g) and the public service cap funds, so grantees are already tracking public inspection at the above address, at § 570.201(e). Currently, program this information. or it may be viewed online at income received during the current Given that the overwhelming majority www.regulations.gov, under the above program year is considered in the of CDBG grantees use grant-specific docket number. Due to security determination of compliance with accounting (the use of which is also measures at the HUD Headquarters § 570.200(g) and program income strongly recommended by HUD’s Office building, an advance appointment to received during the prior program year of Inspector General) HUD has the review the public comments must be is considered in the determination of justification necessary to issue this rule scheduled by calling the Regulations compliance with § 570.201(e). HUD as an interim rule. While a small Division at 202–708–3055 (this is not a solicits comments regarding the percentage of CDBG grantees are not toll-free number). Individuals with possibility of making these two using this system, it is not a system that speech or hearing impairments may determinations match in terms of which is unfamiliar to them. In addition, IDIS access this number through TTY by program year is considered for itself provides the reports and tools calling the Federal Relay Service at 800– compliance. In this regard, HUD seeks necessary to document compliance with 877–8339 (this is a toll-free number). comment on whether compliance with the regulatory changes for all grantees. Information Collection Requirements both caps should be based on prior year And with the grant year-specific receipts of program income or current accounting, it is now possible for HUD In accordance with the Paperwork year receipts, or whether the current to determine compliance with the Reduction Act, an agency may not distinction between the two should be administrative expenditure cap on a conduct or sponsor, and a person is not maintained. grant-specific basis. The revised required to respond to, a collection of accounting methods also necessitate information unless the collection IV. Justification for Interim Rulemaking these additional regulatory changes displays a currently valid OMB control number. The information collection HUD generally publishes rules for specifying how grantees are to handle requirements contained in this interim advance public comment in accordance closeout procedures and maintain rule have been submitted to the OMB with its rule on rulemaking at 24 CFR records. Since the accounting changes under the Paperwork Reduction Act of part 10. However, under 24 CFR 10.1, are required by existing appropriations 1995 (44 U.S.C. 3501–3520) and HUD may omit prior public notice and law, HUD believes that it is appropriate assigned OMB control number 2506– comment if it is ‘‘impracticable, for the remaining regulatory changes to 0117. unnecessary, or contrary to the public be effective for the current grant year interest.’’ In this instance, HUD has through an interim rule. Unfunded Mandates Reform Act determined that it is unnecessary to Although HUD has determined that good cause exists to publish this rule for Title II of the Unfunded Mandates delay the effectiveness of this rule for Reform Act of 1995 (UMRA) establishes advance public comment. effect without prior solicitation of public comment, HUD recognizes the requirements for Federal agencies to The interim rule provides that, for FY assess the effects of their regulatory 2015 grants, Entitlement CDBG grantees value and importance of public input in the rulemaking process. Accordingly, actions on State, local, and tribal are to track their obligations and governments and the private sector. expenditures of funds for each specific HUD is issuing these regulatory amendments on an interim basis and This rule will not impose any Federal grant year. The scope of the interim mandates on any State, local, or tribal regulatory amendments is limited to the providing a 60-day public comment period. All comments will be governments or the private sector within change in the input of this information the meaning of UMRA. in IDIS and to those additional changes considered in the development of the necessary to conform the regulations to final rule. Environmental Review the grant accounting system, such as the V. Findings and Certifications This interim rule does not direct, time periods of affected grants, records provide for assistance or loan and retention, and the calculation of the cap Executive Order 12866, Regulatory mortgage insurance for, or otherwise on administrative and planning Planning and Review govern, or regulate, real property expenses, along with minor The Office of Management and Budget acquisition, disposition, leasing, clarifications and technical corrections. (OMB) reviewed this proposed rule rehabilitation, alteration, demolition, or

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new construction, or establish, revise, or Executive Order 13132, Federalism (i) A jurisdiction must describe provide for standards for construction or Executive Order 13132 (entitled activities planned with respect to all construction materials, manufactured ‘‘Federalism’’) prohibits an agency from CDBG funds expected to be available housing, or occupancy. Accordingly, publishing any rule that has federalism during the program year, except that an under 24 CFR 50.19(c)(1), this rule is implications if the rule either imposes amount generally not to exceed 10 categorically excluded from substantial direct compliance costs on percent of such total available CDBG environmental review under the State and local governments and is not funds may be excluded from the funds National Environmental Policy Act of required by statute or the rule preempts for which eligible activities are 1969 (42 U.S.C. 4321). State law, unless the agency meets the described if it has been identified for the contingency of cost overruns. Impact on Small Entities consultation and funding requirements of section 6 of the Executive order. This (ii) ‘‘CDBG funds expected to be The Regulatory Flexibility Act (RFA) rule does not have federalism available during the program year’’ (5 U.S.C. 601 et seq.) generally requires implications and does not impose includes all of the following: an agency to conduct a regulatory substantial direct compliance costs on (A) The CDBG origin year grant. flexibility analysis of any rule subject to State and local governments nor (B) Any program income expected to notice and comment rulemaking preempt State law within the meaning be received during the program year. requirements, unless the agency certifies of the Executive order. (C) Any program income amounts not that the rule will not have a significant included in a prior action plan. economic impact on a substantial Catalog of Federal Domestic Assistance (D) Any program income previously number of small entities. As an initial The Catalog of Federal Domestic generated under a lump sum drawdown matter, HUD notes that the scope of the Assistance numbers applicable to the agreement for which a new agreement rule is limited to accounting program that would be affected by this will be executed during the program methodology, and does not add or rule are 14.218, 14.225, 14.228, and year pursuant to 24 CFR 570.513(b). modify other CDBG program 14.248. (E) Proceeds from Section 108 loan requirements other than to provide guarantees that will be used during the grammatical and technical corrections. List of Subjects year to address the priority needs and Further, accounting for grant funds by 24 CFR Part 91 specific objectives identified in its specific funding allocations is a practice strategic plan. Aged, Grant programs—housing and used in other Federal programs, and so (F) Surplus from urban renewal community development, Homeless, the requirements are not unfamiliar to, settlements. Individuals with disabilities, Low and and may already be used by, CDBG (G) Reimbursements, other than moderate income housing, Reporting grantees that also receive funding under program income, made to a local and recordkeeping requirements. such programs. account. With respect to burden on small 24 CFR Part 570 (H) Income from float-funded entities, as part of the development of Administrative practice and activities: The full amount of income HUD’s Affirmatively Furthering Fair procedure, American Samoa, expected to be generated by a float- Housing (AFFH) final rule, HUD Community development block grants, funded activity must be shown, whether identified small entities participating in Grant programs—education, Grant or not some or all of the income is the CDBG program as those receiving a programs—housing and community expected to be received in a future grant in FY 2015 of $500,000 or less development, Guam, Indians, Loan program year. To assure that citizens (small CDBG grantees).1 The number of programs—housing and community understand the risks inherent in small CDBG grantees totaled 357 out of development, Low and moderate undertaking float-funded activities, the 1,258 CDBG grantees in FY 2015. income housing, Northern Mariana recipient must specify the total amount In this rule, HUD is now requiring Islands, Pacific Islands Trust Territory, of program income expected to be small actions that were previously Puerto Rico, Reporting and received and the month(s) and year(s) optional, but which many grantees were recordkeeping requirements, Student that it expects the float-funded activity already performing. Further, any aid, Virgin Islands. to generate such program income. necessary accounting system changes Accordingly, for the reasons stated in * * * * * would be one-time updates, rather than the preamble, HUD is amending 24 CFR ■ 3. Amend § 91.320 as follows: a recurring expense, and such costs parts 91 and 570 as follows: ■ a. Capitalize the word ‘‘state’’ and would be reimbursed from the grantee’s ‘‘state’s’’ each time it appears; and administrative expense account, funded PART 91—CONSOLIDATED ■ b. Revise paragraph (k)(1). by the CDBG grant. Therefore, the SUBMISSIONS FOR COMMUNITY The revision reads as follows: undersigned certifies that this rule will PLANNING AND DEVELOPMENT not have a significant impact on a PROGRAMS § 91.320 Action plan. substantial number of small entities. * * * * * ■ Notwithstanding HUD’s belief that 1. The authority citation for part 91 (k) * * * this rule will not have a significant continues to read as follows: (1) CDBG. The action plan must set effect on a substantial number of small Authority: 42 U.S.C. 3535(d), 3601–3619, forth the State’s method of distribution. entities, HUD specifically invites 5301–5315, 11331–11388, 12701–12711, (i) The method of distribution must comments regarding any less 12741–12756, and 12901–12912. contain a description of all criteria used burdensome alternatives to this rule that ■ 2. In § 91.220, revise paragraphs to select applications from local will meet HUD’s objectives as described (l)(1)(i) and (ii) to read as follows: governments for funding, including the in this preamble. relative importance of the criteria, § 91.220 Action plan. where applicable. The method of 1 See AFFH final rule published on July 16, 2015, * * * * * distribution must provide sufficient at 80 FR 42272 (http://www.gpo.gov/fdsys/pkg/FR- (l) * * * information so that units of general local 2015-07-16/pdf/2015-17032.pdf). (1) * * * government will be able to understand

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and comment on it, understand what § 91.325 Certifications. subpart D, the amount of CDBG funds criteria and information their * * * * * obligated during each program year for application will be judged on, and be (b) * * * planning plus administrative costs, as able to prepare responsive applications. (4) * * * defined in §§ 570.205 and 570.206, The method of distribution may provide (ii) In the aggregate, not less than 70 respectively, shall be limited to an a summary of the selection criteria, percent of the CDBG funds received by amount no greater than 20 percent of the provided that all criteria are the State during a period specified by sum of the grant made for that program summarized and the details are set forth the State, not to exceed three years, will year (if any) plus the program income in application manuals or other official be used for activities that benefit received by the recipient and its State publications that are widely persons of low and moderate income. subrecipients (if any) during that distributed to eligible applicants. The period selected and certified to by program year. For origin year 2015 (ii) The action plan must include a the State shall be designated by fiscal grants and subsequent grants, recipients description of how all CDBG resources year of annual grants, and shall be for must apply this test consistent with will be allocated among funding one, two, or three consecutive annual paragraph (g)(1) of this section. categories and the threshold factors and grants. (See 24 CFR 570.481 for (3) Funds from a grant of any origin grant size limits that are to be applied. definition of ‘‘CDBG funds’’); and year may be used to pay planning and The total CDBG resources to be * * * * * program administrative costs associated described in the action plan include all with any grant of any origin year. [§ 91.505 Amended] of the following: * * * * * (A) The CDBG origin year grant. ■ 5. In § 91.505, amend paragraph (a)(2) (B) Any program income expected to (k) Any unexpended CDBG origin by adding ‘‘, reimbursements, or be returned to the State in accordance year grant funds in the United States reallocations from HUD’’ after with 24 CFR 570.489(e)(3)(i) in the Treasury account on September 30 of ‘‘including program income’’. program year or not included in a prior the fifth Federal fiscal year after the end action plan, and any program income of the origin year grant’s period of PART 570—COMMUNITY availability for obligation by HUD will expected to be received by any State DEVELOPMENT BLOCK GRANTS revolving fund in accordance with 24 be canceled. HUD may require an earlier expenditure and draw down deadline CFR 570.489(f)(2) in the program year or ■ 6. The authority citation for part 570 under a grant agreement. not included in a prior action plan. continues to read as follows: (C) Reimbursements, other than [§ 570.201 Amended] program income, made to a local Authority: 42 U.S.C. 3535(d) and 5301– 5320. account. ■ 9. Amend § 570.201 as follows: (iii) If the State intends to help ■ 7. In § 570.3, revise the definition of ■ a. In paragraph (e)(1), add nonentitlement units of general local ‘‘Entitlement amount’’ and add the ‘‘nonentitlement CDBG grants in government apply for guaranteed loan definition of ‘‘Origin year’’ in Hawaii, and for recipients of insular funds under 24 CFR part 570, subpart alphabetical order to read as follows: area funds under section 106 of the M, it must describe available guarantee Act,’’ following ‘‘subpart D of this part,’’ § 570.3 Definitions. amounts and how applications will be both times such language appears; and selected for assistance. If a State elects * * * * * ■ b. In paragraph (e)(2), remove to allow units of general local Entitlement amount means the ‘‘Federal fiscal year’’ and add in its government to carry out community amount of funds which a metropolitan place ‘‘origin year’’. revitalization strategies, the method of city or urban county is entitled to distribution shall reflect the State’s receive under the Entitlement grant [§ 570.206 Amended] process and criteria for approving local program, as determined by formula set ■ 10. Amend § 570.206 as follows: government’s revitalization strategies. forth in section 106 of the Act ■ a. In the introductory text, add (iv) If the State permits units of * * * * * ‘‘program’’ after ‘‘reasonable’’; and general local government to retain Origin year means the specific Federal ■ b. In paragraph (a)(1) introductory program income per 24 CFR fiscal year during which the annual text, remove ‘‘(or the grant period for 570.489(e)(3) or establish local revolving grant funds were appropriated. grants under subpart F)’’. funds per 24 CFR 570.489(f)(1), the State * * * * * [§ 570.410 Amended] must include a description of each of ■ 8. In § 570.200, revise paragraph (g) the local accounts including the name of and add paragraph (k) to read as ■ 11. Amend § 570.410 as follows: the local entity administering the funds, follows: ■ a. In paragraph (c)(2)(ii), remove contact information for the entity ‘‘federal fiscal year’’ and add in its place administering the funds, the amounts § 570.200 General policies. ‘‘origin year’’; and expected to be available during the (g) Limitation on planning and ■ b. In paragraph (c)(2)(iii), remove program year, the eligible activity administrative costs—(1) Origin year ‘‘(e)(3)’’ and add in its place ‘‘(e)(2)’’, type(s) expected to be carried out with grant expenditure test. For origin year and remove ‘‘federal fiscal year’’ and the program income, and the national 2015 grants and subsequent grants, no add in its place ‘‘origin year’’. objective(s) served with the funds. more than 20 percent of any origin year ■ 12. In § 570.480, add paragraph (h) to (iv) HUD may monitor the method of grant shall be expended for planning read as follows: distribution as part of its audit and and program administrative costs, as review responsibilities, as provided in defined in §§ 570.205 and 570.206, § 570.480 General. 24 CFR 570.493(a)(1), in order to respectively. Expenditures of program * * * * * determine compliance with program income for planning and program (h) Any unexpended CDBG origin requirements. administrative costs are excluded from year grant funds in the United States * * * * * this calculation. Treasury account on September 30 of ■ 4. In § 91.325, revise paragraph (2) Program year obligation test. For the fifth Federal fiscal year after the end (b)(4)(ii) to read as follows: all grants and recipients subject to of the origin year grant’s period of

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availability for obligation by HUD will 23, 2004, in an amount not to exceed the State administrative expenses. The State be canceled. HUD may require an earlier sum of 3 percent of its annual grant; 3 will be considered to be in compliance expenditure and draw down deadline percent of program income received by with the applicable requirements if the under a grant agreement. units of general local government during actual amount of CDBG funds spent on ■ 13. In § 570.481, revise paragraph each program year, regardless of the State administrative expenses does not (a)(2) and add paragraph (a)(3) to read origin year in which the State grant exceed the maximum allowable amount, as follows: funds that generate the program income and if the amount of matching funds were appropriated (whether retained by that the state has expended for that § 570.481 Definitions. units of general local government or grant year is equal to or greater than the (a) * * * paid to the State); and 3 percent of amount of CDBG funds in excess of (2) CDBG funds means Community funds reallocated by HUD to the State $100,000 spent during that same grant Development Block Grant funds, in the during each program year. year. Under this approach, the State form of grants under this subpart (iii) The amount of CDBG funds used must demonstrate that it has paid from including any reimbursements, program to pay the sum of administrative costs its own funds at least 50 percent of its income, and loans guaranteed under in excess of $100,000 paid pursuant to administrative expenses in excess of section 108 of the Act. paragraph (a)(1)(i) of this section and $100,000 by the closeout of each grant. (3) Origin year means the specific technical assistance costs paid pursuant (B) Cumulative accounting of Federal fiscal year during which the to paragraph (a)(1)(ii) of this section administrative costs incurred by the annual grant funds were appropriated. must not exceed the sum of 3 percent State since its assumption of the CDBG * * * * * of the State’s annual grant; 3 percent of program for grants before origin year ■ 14. In § 570.485, add paragraph (d) to program income received by units of 2015. Under this approach, the State read as follows: general local government during each will identify, for each grant it has program year, regardless of the origin received, the CDBG funds eligible to be § 570.485 Making of grants. year in which the State grant funds that used for State administrative expenses, * * * * * generate the program income were as well as the minimum amount of (d) Specific conditions.—HUD may appropriated (whether retained by the matching funds that the State is impose additional specific award unit of general local government or paid required to contribute. The amounts conditions on States in accordance with to the State); and 3 percent of funds will then be aggregated for all grants 2 CFR 200.207. reallocated by HUD to the state. received. The State must keep records ■ demonstrating the actual amount of 15. Amend § 570.489 as follows: * * * * * ■ a. Capitalize the words ‘‘state’’ and CDBG funds from each grant received (v) In regard to its administrative ‘‘state’s’’ each time they appear; and that was used for State administrative costs, for grants before origin year 2015, ■ b. In § 570.489, revise paragraphs expenses, as well as matching amounts the State has the option of selecting its (a)(1)(i), (ii), (iii), and (v) and (a)(2) and that were contributed by the State. The approach for demonstrating compliance (3), paragraphs (e)(3) introductory text, State will be considered to be in with the requirements of paragraph (e)(3)(i) and (ii), and paragraph (g) and compliance with the applicable (a)(1) of this section. For grants add paragraph (o) to read as follows: requirements if the aggregate of the beginning with origin year 2015 grants actual amounts of CDBG funds spent on § 570.489 Program administrative and subsequent grants, the State must State administrative expenses does not requirements. use the approach in paragraph exceed the aggregate maximum (a) Administrative and planning (a)(1)(v)(A) of this section. Any State allowable amount and if the aggregate costs.—(1) State administrative and whose matching cost contributions amount of matching funds that the State technical assistance costs. (i) The State toward State administrative expense has expended is equal to or greater than is responsible for the administration of matching requirements are in arrears the aggregate amount of CDBG funds in all CDBG funds. The State may use must bring matching cost contributions excess of $100,000 (for each annual CDBG funds not to exceed $100,000, up to the level of CDBG funds expended grant within the subject period) spent plus 50 percent of administrative for such costs. A State grant may not be on administrative expenses during its 3- expenses incurred in excess of closed out if the State’s matching cost to 5-year Consolidated Planning period. $100,000. Amounts of CDBG funds used contribution is not at least equal to the If the State grant for any grant year to pay administrative expenses in excess amount of CDBG funds in excess of within the 3- to 5-year period has been of $100,000 shall not, subject to $100,000 expended for administration. closed out, the aggregate amount of paragraph (a)(1)(iii) of this section, The two approaches for demonstrating CDBG funds spent on State exceed the sum of 3 percent of the compliance with this paragraph (a)(1) administrative expenses, the aggregate State’s annual grant; 3 percent of are: maximum allowable amount, the program income received by units of (A) Year-to-year tracking and aggregate matching funds expended, general local government during each limitation on drawdown of funds. The and the aggregate amount of CDBG program year, regardless of the origin State will calculate the maximum funds in excess of $100,000 (for each year in which the State grant funds that allowable amount of CDBG funds that annual grant within the subject period) generate the program income were may be used for State administrative will be reduced by amounts attributable appropriated (whether retained by units expenses from the sum of each origin to the grant year for which the State of general local government or paid to year grant, program income received grant has been closed out. the State); and 3 percent of funds during that associated program year and (2) The State may not charge fees of reallocated by HUD to the State. reallocations by HUD to the State during any entity for processing or considering (ii) To pay the costs of providing that associated program year. The State any application for CDBG funds, or for technical assistance to local will draw down amounts of those funds carrying out its responsibilities under governments and nonprofit program only upon its own expenditure of an this subpart. recipients, a State may, subject to equal or greater amount of matching (3)(i) Administrative costs are those paragraph (a)(1)(iii) of this section, use funds from its own resources after the described at § 570.489(a)(1) for states CDBG funds received on or after January expenditure of the initial $100,000 for and, for units of general local

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government, are those described at extent feasible, the State must distribute regardless of whether the activity that sections 105(a)(12) and (a)(13) of the program income before it makes generated the program income has been Act. additional withdrawals from the United closed out. If the grant between the State (ii) For grants before origin year 2015, States Treasury, except as provided in and the unit of general local government the combined expenditures by the State paragraph (f) of this section. that generated the program income is and its funded units of general local (ii) Program income retained by a unit still open when it is generated, program government for planning, management, of general local government. A State income permitted to be retained will be and administrative costs shall not may permit a unit of general local considered part of the unit of general exceed 20 percent of the aggregate government that receives or will receive local government’s grant that generated amount of the origin year grant, any program income to retain it. the program income. If the grant origin year grant funds reallocated by Alternatively, a State may require that between the State and the unit of HUD to the State, and the amount of any the unit of general local government pay general local government is closed out, program income received during the any such income to the State unless the program income permitted to be program year. exception in paragraph (e)(3)(ii)(A) of retained will be considered to be part of (iii) For origin year 2015 grants and this section applies. the unit of general local government’s subsequent grants, no more than 20 (A) A State must permit the unit of most recently awarded open grant. If the percent of any annual grant (excluding general local government to retain the unit of general local government has no program income) shall be expended by program income if the program income open grants with the State, the program the State and its funded units of general will be used to continue the activity income retained by the unit of general local government for planning, from which it was derived. A State will local government will be counted as management, and administrative costs. determine when an activity is being part of the State’s program year in In addition, the combined expenditures continued. In making such a which the program income was by the States and its unit of general local determination, a State may consider received. A State must employ one or government for planning, management, whether the unit of general local more of the following methods to ensure and administrative costs shall not government is or will be unable to that units of general local government exceed 20 percent of any origin year comply with the requirements of comply with applicable program income grant funds reallocated by HUD to the paragraph (e)(3)(ii)(B) of this section or requirements: State. other requirements of this part, and the (1) Maintaining contractual (iv) Funds from a grant of any origin extent to which the program income is relationships with units of general local year may be used to pay planning and unlikely to be applied to continue the government for the duration of the program administrative costs associated activity within the reasonably near existence of the program income; future. When a State determines that the with any grant of any origin year. (2) Closing out the underlying program income will be applied to activity, but requiring as a condition of * * * * * continue the activity from which it was closeout that the unit of general local (e) * * * derived, but the amount of program government obtain advance State (3) The State may permit the unit of income held by the unit of general local approval of either a unit of general local general local government which government exceeds projected cash government’s plan for the use of receives or will receive program income needs for the reasonably near future, the program income or of each use of to retain it, subject to the requirements State may require the local government program income by grant recipients via of paragraph (e)(3)(ii) of this section, or to return all or part of the program regularly occurring reports and requests may require the unit of general local income to the State until such time as for approval; government to pay the program income it is needed by the unit of general local to the State. The State, however, must government. When a State determines (3) Closing out the underlying permit the unit of general local that a unit of local government is not activity, but requiring as a condition of government to retain the program likely to apply any significant amount of closeout that the unit of general local income if it will be used to continue the program income to continue the activity government report to the State when activity from which it was derived. The within a reasonable amount of time, or new program income is received; or State will determine when an activity is that it is not likely to apply the program (4) With prior HUD approval, other being continued. income in accordance with applicable approaches that demonstrate that the (i) Program income paid to the State. requirements, the State may require the State will ensure compliance with the Except as described in paragraph unit of general local government to requirements of this subpart by units of (e)(3)(ii)(A) of this section, the State may return all of the program income to the general local government. require the unit of general local State for disbursement to other units of * * * * * government that receives or will receive local government. A State that intends (g) Procurement. When procuring program income to return the program to require units of general local property or services to be paid for in income to the State. Program income government to return program income whole or in part with CDBG funds, the that is paid to the State is treated as in accordance with this paragraph must State shall follow its procurement additional CDBG funds subject to the describe its approach in the State’s policies and procedures. The State shall requirements of this subpart. Except for action plan required under 24 CFR establish requirements for procurement program income retained and used by 91.320 of this title or in a substantial policies and procedures for units of the State for administrative costs or amendment if the State intends to general local government, based on full technical assistance under paragraph (a) implement this option after the action and open competition. Methods of of this section, program income paid to plan is submitted to and approved by procurement (e.g., small purchase, the State must be distributed to units of HUD. sealed bids/formal advertising, general local government in accordance (B) Program income that is received competitive proposals, and with the method of distribution in the and retained by the unit of general local noncompetitive proposals) and their action plan under 24 CFR 91.320(k)(1)(i) government is treated as additional applicability shall be specified by the that is in effect at the time the program CDBG funds and is subject to all State. Cost plus a percentage of cost and income is distributed. To the maximum applicable requirements of this subpart, percentage of construction costs

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methods of contracting shall not be in its place ‘‘HUD regulations (c) * * * used. The policies and procedures shall implementing the Single Audit Act (3) Description of the recipient’s also include standards of conduct requirements at 2 CFR part 200’’; responsibility after closeout for: governing employees engaged in the ■ e. Remove paragraph (c)(3) and (i) Compliance with all program award or administration of contracts. redesignate paragraphs (c)(4) and (5) as requirements, certifications, and (Other conflicts of interest are covered paragraphs (c)(3) and (4), respectively; assurances in using any remaining by § 570.489(h).) The State shall ensure and CDBG funds available for closeout costs that all purchase orders and contracts ■ f. Revise newly redesignated and contingent liabilities; include any clauses required by Federal paragraph (c)(3). (ii) Use of real property assisted with statutes, Executive orders, and The revisions and additions read as CDBG funds in accordance with the implementing regulations. The State follows: principles described in §§ 570.503(b)(7) and 570.505; shall make subrecipient and contractor § 570.509 Grant closeout procedures. determinations in accordance with the (iii) Compliance with requirements (a) Criteria for closeout. HUD may standards in 2 CFR 200.330. governing future program income or make grant closeout determinations for * * * * * receivables generated from activities individual grants or multiple grants funded from the origin year grant, as (o) Grant Closeout.—HUD will close simultaneously. A grant will be closed grants to States in accordance with the described in § 570.504(b)(4) and (5); out when HUD determines, in (iv) Ensuring that flood insurance grant closeout requirements of 2 CFR consultation with the recipient, that the 200.343. coverage for affected property owners is following criteria have been met: maintained for the mandatory period; [§ 570.503 Amended] (1) All costs to be paid with CDBG and funds from a given origin year’s grant ■ * * * * * 16. In § 570.503, amend paragraph (b) have been expended and drawn down, introductory text by removing the with the exception of closeout costs ■ 19. In § 570.513, amend paragraph second occurrence of the word (e.g., audit costs) and costs resulting (b)(7) by adding after the first sentence ‘‘following’’. from contingent liabilities described in a new second sentence to read as ■ 17. Amend § 570.506 as follows: the closeout agreement pursuant to follows: ■ a. In paragraph (d), add paragraph (c) of this section. Contingent § 570.513 Lump sum drawdown for ‘‘§ 570.503(b)(7) or’’ before ‘‘§ 570.505’’; liabilities include, but are not limited to, financing of property rehabilitation and third-party claims against the recipient, activities. ■ b. Revise paragraph (h). as well as related administrative costs. The revision reads as follows: * * * * * (2) All activities for which funds were (b) * * * § 570.506 Records to be maintained. expended from the origin year grant are (7) * * * Any program income which physically completed, are eligible, have * * * * * will be governed by a new agreement met a national objective under must be identified in the current (h) Financial records, in accordance § 570.208, and the grantee has reported with the applicable requirements listed program year Action Plan, pursuant to on all accomplishments resulting from 24 CFR 91.220(l). * * * in § 570.502, including source the activity. documentation for entities not subject to (3) A final performance and * * * * * 2 CFR part 200. Grantees shall maintain expenditure report for completed Dated: September 18, 2015. evidence to support how the CDBG activities has been submitted to HUD Harriet Tregoning, funds provided to such entities are pursuant to 24 CFR 91.520, and HUD Principal Deputy Assistant, Secretary for expended. Such documentation must has determined the plan is satisfactory. Community Planning and Development. include, to the extent applicable, (4) All program income received by Approved on: October 13, 2015. invoices, schedules containing the grantee during the grantee program Nani A. Coloretti, comparisons of budgeted amounts and year associated with the origin year Deputy Secretary. actual expenditures, construction grant has been expended, or identified [FR Doc. 2015–28700 Filed 11–10–15; 8:45 am] progress schedules signed by in a more recent program year’s Action appropriate parties (e.g., general Plan, pursuant to 24 CFR 91.220(l). BILLING CODE 4210–67–P contractor and/or a project architect), (5) For origin year 2015 grants and and/or other documentation appropriate subsequent grants, the grantee has to the nature of the activity. Grantee expended no more than 20 percent of DEPARTMENT OF HOMELAND records pertaining to obligations, the origin year grant for planning and SECURITY expenditures, and drawdowns must be program administrative costs, under Coast Guard able to relate financial transactions to § 570.200(g)(1). either a specific origin year grant or to (6) Other responsibilities of the 33 CFR Part 100.701 program income received during a recipient under the grant agreement and specific program year. applicable laws and regulations appear [Docket No. USCG–2015–0955] Special * * * * * to have been carried out satisfactorily or Local ■ there is no further Federal interest in 18. Amend § 570.509 as follows: Regulations; Recurring Marine Events ■ a. Revise paragraph (a); keeping the grant agreement open for in the Seventh Coast Guard District ■ b. Remove paragraph (b)(1) and the purpose of securing performance. redesignate paragraphs (b)(2) through (4) (b) * * * AGENCY: Coast Guard, DHS. (2) * * * Any funds which have as paragraphs (b)(1) through (3), ACTION: Notice of enforcement of exceeded the statutory time limit on the respectively; regulation. ■ c. In newly redesignated paragraph use of funds will be recaptured by the (b)(2), add a sentence at the end; U.S. Treasury pursuant to 24 CFR SUMMARY: The Coast Guard will enforce ■ d. In newly redesignated paragraph 570.200(k). the regulation pertaining to the (b)(3), remove‘‘24 CFR part 44’’ and add * * * * * Savannah Harbor Boat Parade of Lights

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and Fireworks taking place on Dated: October 26, 2015. I. Background November 28, 2015. This action is A.M. Beach, The background for today’s action is necessary to ensure safety of life on Commander, U.S. Coast Guard, Captain of discussed in detail in our August 27, navigable waters of the United States the Port, Savannah. 2015 proposal (80 FR 52003). In that during the Savannah Harbor Boat [FR Doc. 2015–28792 Filed 11–10–15; 8:45 am] notice, we proposed to approve updates Parade of Lights and Fireworks. During BILLING CODE 9110–04–P to the New Mexico SIP for the City of the enforcement period, the special Albuquerque-Bernalillo County local regulation establishes a regulated Nonattainment New Source Review area which will prohibit all people and (NNSR) permitting program at 20.11.60 vessels from entering. No person or ENVIRONMENTAL PROTECTION NMAC as submitted on August 16, 2010 vessel may enter, transit through, AGENCY and July 26, 2013. These revisions were submitted to address the following anchor in, or remain within the area 40 CFR Part 52 without permission of the Captain of the federal requirements for NNSR: Port Savannah, or a designated • Implementation of the NSR Program [EPA–R06–OAR–2009–0648; FRL–9936–86– representative. for PM2.5 (73 FR 28321); Region 6] • PSD for PM2.5-Increments, DATES: The regulation in 33 CFR Approval and Promulgation of Significant Impact Levels (SILs) and 100.701 Table 1 will be enforced from Implementation Plans; New Mexico; Significant Monitoring Concentration 5 p.m. to 10 p.m. on November 28, 2015. Nonattainment New Source Review (SMC) (75 FR 64864); • Implementation of the 8-hour FOR FURTHER INFORMATION CONTACT: If Permitting State Implementation Plan Ozone (O ) NAAQS-Phase; Final Rule to you have questions on this notice, call Revisions for the City of Albuquerque- 3 Bernalillo County Implement Certain Aspects of the 1990 or email MST1 Cliffton Hendry, Marine Amendments Relating to NSR and PSD Safety Unit Savannah Office of AGENCY: Environmental Protection as They Apply to Carbon Monoxide Waterways Management, Coast Guard; Agency (EPA). (CO), PM and O3 NAAQS (70 FR 71612); telephone 912–652–4353, extension • ACTION: Final rule. PSD and NNSR: Reasonable 243, or email Cliffton.R.Hendry@ Possibility in Recordkeeping (72 FR uscg.mil. SUMMARY: The Environmental Protection 72607); and PSD and NNSR: Agency (EPA) is approving revisions to Reconsideration of Inclusion of Fugitive SUPPLEMENTARY INFORMATION: The Coast the New Mexico State Implementation Rule (76 FR 17548). Guard will enforce the special local Plan (SIP) for the City of Albuquerque- We did not receive any comments regulation for the Savannah Parade of Bernalillo County. These revisions regarding our proposal. Lights and Fireworks in 33 CFR 100.701 provide updates to the City of II. Final Action Table 1 from 5 p.m. to 10 p.m. on Albuquerque-Bernalillo County major November 28, 2015. Nonattainment New Source Review We are approving severable portions Under the provisions of 33 CFR (NNSR) permit program. The EPA is of SIP submittals for the New Mexico 100.701 no person or vessel may enter proposing this action under section 110 SIP for the City of Albuquerque- the regulated area, unless they receive and part D of the Clean Air Act (CAA Bernalillo County NNSR permitting permission to do so from the Captain of or the Act). program submitted on August 16, 2010, the Port Savannah, or a designated DATES: This final rule is effective on and July 26, 2013. The EPA has representative. This temporary rule December 14, 2015. determined that the submitted rules were adopted and submitted in creates a regulated area that will ADDRESSES: The EPA has established a accordance with the CAA and are encompass the entire Savannah River in docket for this action under Docket ID consistent with our regulations and Savannah, GA beginning at the No. EPA–R06–OAR–2009–0648. All policies regarding NNSR permitting. Talmadge Bridge near River Street, documents in the docket are listed on ° ′ ″ ° ′ ″ Therefore, we are taking final action coordinates 32 05 20 N., 081 05 56.3 the http://www.regulations.gov Web under section 110 and part D of the W., and proceeding down river to a line site. Although listed in the index, some CAA to approve the following as drawn at 146 degrees true from day information is not publicly available, revisions to the New Mexico SIP for the board 62, approximate coordinates are: e.g., Confidential Business Information City of Albuquerque-Bernalillo County: ° ′ ″ ° ′ ″ 32 04 48.7 N., 081 04 47.9 W. or other information whose disclosure is • Revisions to 20.11.60.1 NMAC as restricted by statute. Certain other Spectator vessels may safely transit adopted on July 14, 2010 and submitted material, such as copyrighted material, outside the regulated area, but may not on August 16, 2010; is not placed on the Internet and will be anchor, block, loiter in, or impede the • Revisions to 20.11.60.2 NMAC as publicly available only in hard copy adopted on July 14, 2010 and submitted transit of festival participants or official form. Publicly available docket patrol vessels. The Coast Guard may be August 16, 2010; materials are available either • assisted by other Federal, State, or local Revisions to 20.11.60.6 NMAC as electronically through http:// adopted on July 14, 2010 and submitted law enforcement agencies in enforcing www.regulations.gov or in hard copy at this regulation. August 16, 2010, and adopted on April the EPA Region 6, 1445 Ross Avenue, 10, 2013 and submitted on July 26, This notice is issued under authority Suite 700, Dallas, Texas 75202–2733. 2013; of 33 CFR 100.701 and 5 U.S.C. 552(a). FOR FURTHER INFORMATION CONTACT: Ms. • Revisions to 20.11.60.7 NMAC as The Coast Guard will provide notice of Erica Le Doux, (214) 665–7265, adopted on July 14, 2010 and submitted the regulated areas by Local Notice to [email protected]. August 16, 2010, and adopted on April Mariners, Broadcast Notice to Mariners, SUPPLEMENTARY INFORMATION: 10, 2013 and submitted on July 26, and on-scene designated Throughout this document wherever 2013; representatives. ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean • Revisions to 20.11.60.12 NMAC as the EPA. adopted on July 14, 2010 and submitted

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August 16, 2010, and adopted on April area is designated nonattainment for the • Is not an economically significant 10, 2013 and submitted on July 26, 2012 PM2.5 NAAQS or any other future regulatory action based on health or 2013; PM2.5 NAAQS, New Mexico for the City safety risks subject to Executive Order • Revisions to 20.11.60.13 NMAC as of Albuquerque-Bernalillo County will 13045 (62 FR 19885, April 23, 1997); adopted on July 14, 2010 and submitted have a deadline under section 189(a)(2) • Is not a significant regulatory action August 16, 2010, and adopted on April of the CAA to make a submission subject to Executive Order 13211 (66 FR 10, 2013 and submitted on July 26, addressing the statutory requirements as 28355, May 22, 2001); 2013; to that area, including the requirements • Is not subject to requirements of • New 20.11.60.14 NMAC as adopted in section 189(e) that apply to the section 12(d) of the National on July 14, 2010 and submitted August regulation of PM2.5 precursors. Technology Transfer and Advancement 16, 2010; III. Incorporation by Reference Act of 1995 (15 U.S.C. 272 note) because • New 20.11.60.15 NMAC as adopted application of those requirements would July 14, 2010 and submitted August 16, In this rule, we are finalizing be inconsistent with the Clean Air Act; 2010, and revisions adopted on April regulatory text that includes and 10, 2013 and submitted on July 26, incorporation by reference. In • Does not provide EPA with the 2013; accordance with the requirements of 1 discretionary authority to address, as • New 20.11.60.16 NMAC as adopted CFR 51.5, we are finalizing the appropriate, disproportionate human on July 14, 2010 and submitted August incorporation by reference of the health or environmental effects, using 16, 2010; revisions to the New Mexico for the City • practicable and legally permissible Revisions to 20.11.60.17 NMAC as of Albuquerque-Bernalillo County methods, under Executive Order 12898 adopted on July 14, 2010 and submitted regulations as described in the Final (59 FR 7629, February 16, 1994). August 16, 2010; Action section above. We have made, • In addition, the SIP is not approved Revisions to 20.11.60.18 NMAC as and will continue to make, these to apply on any Indian reservation land adopted on July 14, 2010 and submitted documents generally available or in any other area where EPA or an August 16, 2010; electronically through Indian tribe has demonstrated that a • New 20.11.60.19 NMAC as adopted www.regulations.gov and/or in hard tribe has jurisdiction. In those areas of on July 14, 2010 and submitted August copy at the EPA Region 6 office. Indian country, the rule does not have 16, 2010; tribal implications and will not impose • New 20.11.60.20 NMAC as adopted IV. Statutory and Executive Order substantial direct costs on tribal on July 14, 2010 and submitted August Reviews governments or preempt tribal law as 16, 2010; Under the Clean Air Act, the specified by Executive Order 13175 (65 • Revisions to 20.11.60.21 NMAC as Administrator is required to approve a FR 67249, November 9, 2000). adopted on July 14, 2010 and submitted SIP submission that complies with the August 16, 2010; provisions of the Act and applicable The Congressional Review Act, 5 • Revisions to 20.11.60.22 NMAC as Federal regulations. 42 U.S.C. 7410(k); U.S.C. 801 et seq., as added by the Small adopted on July 14, 2010 and submitted 40 CFR 52.02(a). Thus, in reviewing SIP Business Regulatory Enforcement August 16, 2010; submissions, the EPA’s role is to Fairness Act of 1996, generally provides • Revisions to 20.11.60.23 NMAC as approve state choices, provided that that before a rule may take effect, the adopted on July 14, 2010 and submitted they meet the criteria of the Clean Air agency promulgating the rule must August 16, 2010; Act. Accordingly, this action merely submit a rule report, which includes a • Revisions to 20.11.60.24 NMAC as approves state law as meeting Federal copy of the rule, to each House of the adopted on July 14, 2010 and submitted requirements and does not impose Congress and to the Comptroller General August 16, 2010; additional requirements beyond those of the United States. EPA will submit a • Revisions to 20.11.60.25 NMAC as imposed by state law. For that reason, report containing this action and other adopted on July 14, 2010 and submitted this action: required information to the U.S. Senate, August 16, 2010; • Is not a ‘‘significant regulatory the U.S. House of Representatives, and • Revisions to 20.11.60.26 NMAC as action’’ subject to review by the Office the Comptroller General of the United adopted on July 14, 2010 and submitted of Management and Budget under States prior to publication of the rule in August 16, 2010; and Executive Orders 12866 (58 FR 51735, the Federal Register. A major rule • Revisions to 20.11.60.27 NMAC as October 4, 1993) and 13563 (76 FR 3821, cannot take effect until 60 days after it adopted on July 14, 2010 and submitted January 21, 2011); is published in the Federal Register. August 16, 2010. • Does not impose an information This action is not a ‘‘major rule’’ as The EPA finds that the August 16, collection burden under the provisions defined by 5 U.S.C. 804(2). 2010 and July 26, 2013, submittals of the Paperwork Reduction Act (44 Under section 307(b)(1) of the Clean together address all required NNSR U.S.C. 3501 et seq.); Air Act, petitions for judicial review of elements for the implementation of the • Is certified as not having a this action must be filed in the United 8-hour ozone NAAQS and the 1997 and significant economic impact on a States Court of Appeals for the 2006 PM2.5 NAAQS. We note that the substantial number of small entities appropriate circuit by January 11, 2016. City of Albuquerque-Bernalillo County under the Regulatory Flexibility Act (5 Filing a petition for reconsideration by NNSR program does not include U.S.C. 601 et seq.); the Administrator of this final rule does regulation of VOCs and ammonia as • Does not contain any unfunded not affect the finality of this action for PM2.5 precursors. However, section mandate or significantly or uniquely the purposed of judicial review nor does 189(e) of the Act requires regulation of affect small governments, as described it extend the time within which a PM2.5 precursors that significantly in the Unfunded Mandates Reform Act petition for judicial review may be filed, contribute to PM2.5 levels ‘‘which of 1995 (Pub. L. 104–4); and shall not postpone the effectiveness exceed the standard in the area’’ and • Does not have Federalism of such rule or action. This action may PM2.5 levels in the City of Albuquerque- implications as specified in Executive not be challenged later in proceedings to Bernalillo County do not currently Order 13132 (64 FR 43255, August 10, enforce its requirements. (See section exceed the standard. In the event that an 1999); 307(b)(2).)

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List of Subjects in 40 CFR Part 52 Dated: October 29, 2015. Subpart GG—New Mexico Ron Curry, Environmental protection, Air Regional Administrator, Region 6. ■ 2. In § 52.1620(c) the second table pollution control, Carbon monoxide, 40 CFR part 52 is amended as follows: titled ‘‘EPA Approved Albuquerque/ Incorporation by reference, Bernalillo County, NM Regulations’’ is Intergovernmental relations, Lead, PART 52—APPROVAL AND amended by revising the entry for ‘‘Part Nitrogen dioxide, Ozone, Particulate PROMULGATION OF 60 (20.11.60)’’ to read as follows: matter, Reporting and recordkeeping IMPLEMENTATION PLANS requirements, Sulfur oxides, Volatile § 52.1620 Identification of plan. ■ organic compounds. 1. The authority citation for part 52 continues to read as follows: * * * * * Authority: 42 U.S.C. 7401 et seq. (c) * * *

EPA APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS

State approval/ State citation Title/subject effective EPA approval date Explanation date

New Mexico Administrative Code (NMAC) Title 20—Environment Protection, Chapter 11—Albuquerque/Bernalillo County Air Quality Board

******* Part 60 (20.11.60) ...... Permitting in Nonattain- 4/10/2013 11/12/2015 [Insert Federal Register citation]. ment Areas.

*******

* * * * * reasonably available control technology multi-volume reports), and some may [FR Doc. 2015–28648 Filed 11–10–15; 8:45 am] (RACT) requirements under the 1997 8- not be available in either location (e.g., BILLING CODE 6560–50–P hour National Ambient Air Quality confidential business information Standards (NAAQS) for ozone. This (CBI)). To inspect the hard copy submitted SIP revision also contains materials, please schedule an ENVIRONMENTAL PROTECTION ICAPCD’s negative declarations for appointment during normal business AGENCY certain volatile organic compound hours with the contact listed in the FOR (VOC) source categories. We are FURTHER INFORMATION CONTACT section. 40 CFR Part 52 approving this document under the FOR FURTHER INFORMATION CONTACT: [EPA–R09–OAR–2015–0289; FRL–9936–65– Clean Air Act (CAA or the Act). James Shears, EPA Region IX, (213) Region 9] DATES: This rule is effective on 244–1810, [email protected]. Approval of California Air Plan December 14, 2015. SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us’’ Revisions, Imperial County Air ADDRESSES: The EPA has established and ‘‘our’’ refer to the EPA. Pollution Control District docket number EPA–R09–OAR–2015– AGENCY: Environmental Protection 0289 for this action. Generally, Table of Contents Agency (EPA). documents in the docket for this action I. Proposed Action ACTION: Final rule. are available electronically at http:// II. Public Comments and EPA Responses www.regulations.gov or in hard copy at III. EPA Action SUMMARY: The Environmental Protection EPA Region IX, 75 Hawthorne Street, IV. Statutory and Executive Order Reviews Agency (EPA) is taking final action to San Francisco, California 94105–3901. approve a revision to the Imperial While all documents in the docket are I. Proposed Action County Air Pollution Control District listed at http://www.regulations.gov, On September 1, 2015 (80 FR 52710), (ICAPCD) portion of the California State some information may be publicly the EPA proposed to approve the Implementation Plan (SIP). This available only at the hard copy location following document into the California revision concerns the District’s (e.g., copyrighted material, large maps, SIP.

Local agency Document Adopted Submitted

ICAPCD ...... Final 2009 Reasonably Available Control Technology State Implemen- 07/13/10 12/21/10 tation Plan (‘‘2009 RACT SIP’’).

ICAPCD’s submittal also included the sources subject to the control techniques following negative declarations which guidelines (CTG) documents. the District certified that it had no

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CTG Source category CTG Reference document

Aerospace ...... EPA–453/R–97–004, Aerospace CTG and MACT. Automobile and Light-duty Trucks, Surface Coating of ...... EPA–450/2–77–008, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks. EPA–453/R–08–006, Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings. Cans and Coils, Surface Coating of ...... EPA–450/2–77–008, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks. Fiberglass Boat Manufacturing ...... EPA–453/R–08–004, Controls Techniques Guidelines for Fiberglass Boat Manufacturing. Flat Wood Paneling, Surface Coating of ...... EPA–450/2–78–032, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume VII: Factory Surface Coating of Flat Wood Paneling. EPA–453/R–06–004, Control Techniques Guidelines for Flat Wood Paneling Coatings. Flexible Packing Printing ...... EPA–453/R–06–003, Control Techniques Guidelines for Flexible Pack- age Printing. Graphic Arts—Rotogravure and Flexography ...... EPA–450/2–78–033, Control of Volatile Organic Emissions from Exist- ing Stationary Sources, Volume III: Graphic Arts—Rotogravure and Flexography. Large Appliances, Surface Coating of ...... EPA–450/2–77–034, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume V: Surface Coating of Large Appli- ances. EPA–453/R–07–004, Control Techniques Guidelines for Large Appli- ance Coatings. Large Petroleum Dry Cleaners ...... EPA–450/3–82–009, Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners. Offset Lithographic Printing and Letterpress Printing ...... EPA–453/R–06–002, Control Techniques Guidelines for Offset Litho- graphic Printing and Letterpress Printing. Magnet Wire, Surface Coating for Insulation of ...... EPA–450/2–77–033, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume IV: Surface Coating of Insulation of Magnet Wire. Metal Furniture Coatings ...... EPA–450/2–77–032, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume III: Surface Coating of Metal Fur- niture. EPA–453/R–07–005, Control Techniques Guidelines for Metal Fur- niture Coatings. Miscellaneous Metal and Plastic Parts Coatings ...... EPA–453/R–08–003, Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings. Miscellaneous Metal Parts and Products, Surface Coating of ...... EPA–450/2–78–015, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume IV: Surface Coating of Miscella- neous Metal Parts and Products. Miscellaneous Industrial Adhesives ...... EPA–453/R–08–005, Control Techniques Guidelines for Miscellaneous Industrial Adhesives. Natural Gas/Gasoline Processing Plants Equipment Leaks ...... EPA–450/2–83–007, Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants. Paper, Film and Foil Coatings ...... EPA–453R–07–003, Control Techniques Guidelines for Paper, Film and Foil Coatings. Petroleum Refineries ...... EPA–450/2–77–025, Control of Refinery Vacuum Producing Systems, Wastewater Separators, and Process Unit Turnarounds. EPA–450/2–78–036, Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment. Pharmaceutical Products ...... EPA–450/2–78–029, Control of Volatile Organic Emissions from Manu- facture of Synthesized Pharmaceutical Products. Pneumatic Rubber Tires, Manufacture of ...... EPA–450/2–78–030, Control of Volatile Organic Emissions from Manu- facture of Pneumatic Rubber Tires. Polyester Resin ...... EPA–450/3–83–008, Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins. EPA–450/3–83–006, Control of Volatile Organic Compound Leaks from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment. Shipbuilding/Repair ...... EPA–453/R–94–032, Shipbuilding/Repair. Synthetic Organic Chemical ...... EPA–450/3–84–015, Control of Volatile Organic Compound Emissions from Air Oxidation Processes in Synthetic Organic Chemical Manu- facturing Industry. EPA–450/4–91–031, Control of Volatile Organic Compound Emissions from Reactor Processes and Distillation Operations in Synthetic Or- ganic Chemical Manufacturing Industry. Wood Furniture ...... EPA–453/R–96–007, Wood Furniture.

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We proposed to approve ICAPCD’s Order 13132 (64 FR 43255, August 10, the purposes of judicial review nor does 2009 RACT SIP and negative 1999); it extend the time within which a declarations because we determined • Is not an economically significant petition for judicial review may be filed, that they complied with the relevant regulatory action based on health or and shall not postpone the effectiveness CAA requirements. Our proposed action safety risks subject to Executive Order of such rule or action. This action may contains more information on the 13045 (62 FR 19885, April 23, 1997); not be challenged later in proceedings to submitted document and our • Is not a significant regulatory action enforce its requirements (see section evaluation. subject to Executive Order 13211 (66 FR 307(b)(2)). 28355, May 22, 2001); II. Public Comments and EPA • Is not subject to requirements of List of Subjects in 40 CFR Part 52 Responses Section 12(d) of the National Environmental protection, Air The EPA’s proposed action provided Technology Transfer and Advancement pollution control, Incorporation by a 30-day public comment period. During Act of 1995 (15 U.S.C. 272 note) because reference, Intergovernmental relations, this period, we received no comments. application of those requirements would Nitrogen dioxide, Ozone, Reporting and be inconsistent with the Clean Air Act; recordkeeping requirements, Volatile III. EPA Action and • organic compounds. No comments were submitted. Does not provide EPA with the discretionary authority to address, as Dated: October 19, 2015. Therefore, as authorized in section Jared Blumenfeld, 110(k)(3) of the Act, the EPA is fully appropriate, disproportionate human Regional Administrator, Region IX. approving this document, including the health or environmental effects using negative declarations, into the California practicable, and legally permissible Part 52, Chapter I, Title 40 of the Code SIP. methods, under Executive Order 12898 of Federal Regulations is amended as (59 FR 7629, February 16, 1994). follows: IV. Statutory and Executive Order In addition, this approved action does Reviews not apply on any Indian reservation PART 52—APPROVAL AND land or in any other area where EPA or Under the Clean Air Act, the PROMULGATION OF an Indian tribe has demonstrated that a Administrator is required to approve a IMPLEMENTATION PLANS tribe has jurisdiction. In those areas of SIP submission that complies with the Indian country, the rules do not have ■ 1. The authority citation for Part 52 provisions of the Act and applicable tribal implications and will not impose continues to read as follows: Federal regulations. 42 U.S.C. 7410(k); substantial direct costs on tribal 40 CFR 52.02(a). Thus, in reviewing SIP Authority: 42 U.S.C. 7401 et seq. governments or preempt tribal law as submissions, the EPA’s role is to specified by Executive Order 13175 (65 Subpart F—California approve State choices, provided that FR 67249, November 9, 2000). they meet the criteria of the Clean Air The Congressional Review Act, 5 ■ 2. Section 52.220 is amended by Act. Accordingly, this action merely U.S.C. 801 et seq., as added by the Small adding reserved paragraph (c)(463) and approves State law as meeting Federal Business Regulatory Enforcement adding paragraph (c)(464) to read as requirements and does not impose Fairness Act of 1996, generally provides follows: additional requirements beyond those that before a rule may take effect, the imposed by State law. For that reason, agency promulgating the rule must § 52.220 Identification of plan. this action: * * * * * • submit a rule report, which includes a Is not a ‘‘significant regulatory copy of the rule, to each House of the (c) * * * action’’ subject to review by the Office Congress and to the Comptroller General (463) [Reserved] of Management and Budget under of the United States. The EPA will (464) The following plan was Executive Order 12866 (58 FR 51735, submit a report containing this action submitted on December 21, 2010 by the October 4, 1993) and 13563 (76 FR 3821, and other required information to the Governor’s designee. January 21, 2011); U.S. Senate, the U.S. House of (i) [Reserved] • Does not impose an information Representatives, and the Comptroller (ii) Additional Material. collection burden under the provisions General of the United States prior to (A) Imperial County Air Pollution of the Paperwork Reduction Act (44 publication of the rule in the Federal Control District. U.S.C. 3501 et seq.); Register. A major rule cannot take effect (1) Final 2009 Reasonably Available • Is certified as not having a until 60 days after it is published in the Control Technology State significant economic impact on a Federal Register. This action is not a Implementation Plan (‘‘2009 RACT substantial number of small entities ‘‘major rule’’ as defined by 5 U.S.C. SIP’’) as adopted on July 13, 2010. under the Regulatory Flexibility Act (5 804(2). ■ 3. Section 52.222 is amended by U.S.C. 601 et seq.); Under section 307(b)(1) of the Clean adding paragraph (a)(12) to read as • Does not contain any unfunded Air Act, petitions for judicial review of follows: mandate or significantly or uniquely this action must be filed in the United affect small governments, as described States Court of Appeals for the § 52.222 Negative declarations. in the Unfunded Mandates Reform Act appropriate circuit by January 11, 2016. (a) * * * of 1995 (Pub. L. 104–4); Filing a petition for reconsideration by (12) Imperial County Air Pollution • Does not have Federalism the Administrator of this final rule does Control District. implications as specified in Executive not affect the finality of this action for (i)

CTG Source category Negative declaration CTG reference document

Aerospace ...... EPA–453/R–97–004, Aerospace CTG and MACT.

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CTG Source category Negative declaration CTG reference document

Automobile and Light-duty Trucks, Surface Coating of ...... EPA–450/2–77–008, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks. EPA–453/R–08–006, Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings. Cans and Coils, Surface Coating of ...... EPA–450/2–77–008, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks. Fiberglass Boat Manufacturing ...... EPA–453/R–08–004, Controls Techniques Guidelines for Fiberglass Boat Manufacturing. Flat Wood Paneling, Surface Coating of ...... EPA–450/2–78–032, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume VII: Factory Surface Coating of Flat Wood Paneling. EPA–453/R–06–004, Control Techniques Guidelines for Flat Wood Paneling Coatings. Flexible Packing Printing ...... EPA–453/R–06–003, Control Techniques Guidelines for Flexible Pack- age Printing. Graphic Arts—Rotogravure and Flexography ...... EPA–450/2–78–033, Control of Volatile Organic Emissions from Exist- ing Stationary Sources, Volume III: Graphic Arts—Rotogravure and Flexography. Large Appliances, Surface Coating of ...... EPA–450/2–77–034, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume V: Surface Coating of Large Appli- ances. EPA–453/R–07–004, Control Techniques Guidelines for Large Appli- ance Coatings. Large Petroleum Dry Cleaners ...... EPA–450/3–82–009, Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners. Offset Lithographic Printing and Letterpress Printing ...... EPA–453/R–06–002, Control Techniques Guidelines for Offset Litho- graphic Printing and Letterpress Printing. Magnet Wire, Surface Coating for Insulation of ...... EPA–450/2–77–033, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume IV: Surface Coating of Insulation of Magnet Wire. Metal Furniture Coatings ...... EPA–450/2–77–032, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume III: Surface Coating of Metal Fur- niture. EPA–453/R–07–005, Control Techniques Guidelines for Metal Fur- niture Coatings. Miscellaneous Metal and Plastic Parts Coatings ...... EPA–453/R–08–003, Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings. Miscellaneous Metal Parts and Products, Surface Coating of ...... EPA–450/2–78–015, Control of Volatile Organic Emissions from Exist- ing Stationary Sources—Volume IV: Surface Coating of Miscella- neous Metal Parts and Products. Miscellaneous Industrial Adhesives ...... EPA–453/R–08–005, Control Techniques Guidelines for Miscellaneous Industrial Adhesives. Natural Gas/Gasoline Processing Plants Equipment Leaks ...... EPA–450/2–83–007, Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants. Paper, Film and Foil Coatings ...... EPA–453R–07–003, Control Techniques Guidelines for Paper, Film and Foil Coatings. Petroleum Refineries ...... EPA–450/2–77–025, Control of Refinery Vacuum Producing Systems, Wastewater Separators, and Process Unit Turnarounds. EPA–450/2–78–036, Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment. Pharmaceutical Products ...... EPA–450/2–78–029, Control of Volatile Organic Emissions from Manu- facture of Synthesized Pharmaceutical Products. Pneumatic Rubber Tires, Manufacture of ...... EPA–450/2–78–030, Control of Volatile Organic Emissions from Manu- facture of Pneumatic Rubber Tires. Polyester Resin ...... EPA–450/3–83–008, Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins. EPA–450/3–83–006, Control of Volatile Organic Compound Leaks from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment. Shipbuilding/Repair ...... EPA–453/R–94–032, Shipbuilding/Repair. Synthetic Organic Chemical ...... EPA–450/3–84–015, Control of Volatile Organic Compound Emissions from Air Oxidation Processes in Synthetic Organic Chemical Manu- facturing Industry. EPA–450/4–91–031, Control of Volatile Organic Compound Emissions from Reactor Processes and Distillation Operations in Synthetic Or- ganic Chemical Manufacturing Industry. Wood Furniture ...... EPA–453/R–96–007, Wood Furniture.

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(ii) Submitted on December 21, 2010 0257 for this action. Generally, permitting authority within these and adopted on July 13, 2010. documents in the docket for this action Districts under a Federal * * * * * are available electronically at Implementation Plan (FIP). Approval of [FR Doc. 2015–28756 Filed 11–10–15; 8:45 am] www.regulations.gov and in hard copy the Districts’ PSD rules into the SIP will BILLING CODE 6560–50–P at EPA Region IX, 75 Hawthorne Street, transfer PSD permitting authority from San Francisco, California. Some docket the EPA to the Districts. The EPA will materials, however, may be publicly then assume the role of overseeing the ENVIRONMENTAL PROTECTION available only at the hard copy location Districts’ PSD permitting programs, as AGENCY (e.g., voluminous records, maps, intended by the CAA. copyrighted material), and some may For a more detailed discussion of the 40 CFR Part 52 not be publicly available in either District’s rules, please refer to our location (e.g., confidential business [EPA–R09–OAR–2015–0257; FRL–9934–89– proposed approval. See 80 FR 44001 Region 9] information (CBI)). To inspect the hard (July 24, 2015). copy materials, please schedule an Approval of Air Plans; California; appointment during normal business II. The EPA’s Evaluation of the SIP Multiple Districts; Prevention of hours with the contact listed in the FOR Revision Significant Deterioration FURTHER INFORMATION CONTACT section. A. Summary of the EPA's Proposed FOR FURTHER INFORMATION CONTACT: Lisa Action AGENCY: Environmental Protection Beckham, EPA Region IX, (415) 972– Agency (EPA). 3811, [email protected]. On July 24, 2015 (80 FR 44001), the ACTION: Final rule. SUPPLEMENTARY INFORMATION: EPA proposed approval of the Districts’ Throughout this document, ‘‘we’’, ‘‘us’’, PSD rules into the California SIP. We SUMMARY: The Environmental Protection and ‘‘our’’ refer to the EPA. proposed to approve these rules because Agency (EPA) is taking final action we determined that they satisfied the under section 110 of the Clean Air Act Table of Contents applicable CAA requirements. Our (CAA or Act) to approve a State I. Background proposed rule and related Technical Implementation Plan (SIP) revision for II. The EPA’s Evaluation of the SIP Revision Support document (TSD) contain more five California air districts. The State of A. Summary of the EPA’s Proposed Action information about the basis for this California (State) is required by the CAA B. Public Comments and the EPA’s rulemaking and our evaluation of the to adopt and implement a SIP-approved Responses pertinent State SIP revision submittals. Prevention of Significant Deterioration C. What action is the EPA finalizing? (PSD) permit program. This SIP revision III. The EPA’s Final Action B. Public Comments and the EPA's IV. Incorporation by Reference Responses incorporates PSD rules for five local V. Statutory and Executive Order Reviews California air districts into the EPA’s proposed approval action for California SIP to establish a PSD permit I. Background this SIP revision provided a 30-day program for pre-construction review of Section 110(a) of the CAA requires public comment period. We did not certain new and modified major states to adopt and submit regulations receive any comments on our proposed stationary sources in attainment and for the implementation, maintenance action. unclassifiable areas located within these and enforcement of the primary and districts. The local air districts with PSD C. What action is the EPA finalizing? secondary NAAQS. Specifically, rules that are the subject of this action sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), The EPA is finalizing a SIP revision are the Feather River Air Quality and 110(a)(2)(J) of the Act require such for each District’s portion of the Management District (Feather River or state plans to meet the applicable California SIP, consistent with our FRAQMD), Great Basin Unified Air requirements of section 165 relating to proposed approval action. The SIP Pollution Control District (Great Basin a pre-construction permit program for revision will be codified in 40 CFR or GBUAPCD), Butte County Air Quality the prevention of significant 52.220 by incorporating by reference the Management District (Butte or deterioration of air quality and visibility rules listed in Table 1. On June 1, 2015, BCAQMD), Santa Barbara County Air protection. The rules reviewed for this the California Air Resources Board Pollution Control District (Santa Barbara action are intended to implement a pre- (CARB) requested the withdrawal from or SBAPCD), and San Luis Obispo construction PSD permit program as its earlier SIP submittals of the portion County Air Pollution Control District required by section 165 of the CAA for of each District PSD rule that (San Luis Obispo or SLOAPCD)— certain new and modified major incorporates by reference a particular collectively, the Districts. stationary sources located in attainment federal PSD rule provision—40 CFR DATES: This rule is effective on and unclassifiable areas. Because the 52.21(b)(49)(v). As such, our approval of December 14, 2015. State does not currently have a SIP- these local District rules does not ADDRESSES: The EPA has established approved PSD program within the include the rules’ incorporation by docket number EPA–R09–OAR–2015– Districts, the EPA is currently the PSD reference of 40 CFR 52.21(b)(49)(v).

TABLE 1—SUBMITTED RULES

Local agency Rule No. Rule title Adopted Submitted

FRAQMD ...... 10.10 Prevention of Significant Deterioration ...... 8/1/2011 4/22/2013 GBUAPCD .... 221 Prevention of Significant Deterioration (PSD) Permit Requirements for New 9/5/2012 2/6/2013 Major Facilities or Major Modifications in Attainment or Unclassifiable Areas. BCAQMD ...... 1107 Prevention of Significant Deterioration (PSD) Permits ...... 6/28/2012 2/6/2013 SBAPCD ...... 810 Federal Prevention of Significant Deterioration (PSD) ...... 6/20/2013 2/10/2014

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TABLE 1—SUBMITTED RULES—Continued

Local agency Rule No. Rule title Adopted Submitted

SLOAPCD ..... 220 Federal Prevention of Significant Deterioration ...... 1/22/2014 5/13/2014

In addition, letters from the Districts withdrawn from CARB’s request for SIP of the Paperwork Reduction Act (44 to the EPA providing certain approval, as explained in more detail in U.S.C. 3501 et seq.); clarifications regarding their PSD rules our proposal. See 80 FR at 44003–04. • is certified as not having a and the requirements of 40 CFR 51.166 Our determination is based, in part, on significant economic impact on a will be included as additional material the clarifications provided by the substantial number of small entities in 40 CFR 52.220. We are also revising Districts related to the implementation under the Regulatory Flexibility Act (5 40 CFR 52.270 to reflect that upon the of the PSD program, including the U.S.C. 601 et seq.); effective date of this final rule, each clarifications related to Significant • does not contain any unfunded District will have a SIP-approved PSD Impact Levels (SILs) and the Significant mandate or significantly or uniquely program and will no longer be subject Monitoring Concentrations (SMC) for affect small governments, as described to the FIP for the PSD program. This SIP PM2.5, in letters dated November 13, in the Unfunded Mandates Reform Act revision provides a federally approved 2014, November 25, 2014, December 16, of 1995 (Public Law 104–4); and enforceable mechanism for each of 2014, December 18, 2014, April 8, 2015, • does not have Federalism the Districts to issue pre-construction and April 15, 2015. See 80 FR at 44002– implications as specified in Executive PSD permits for certain new and 03. We are including these clarification Order 13132 (64 FR 43255, August 10, modified major stationary sources letters as additional material in 40 CFR 1999); • subject to PSD review within the 52.220. is not an economically significant relevant District. regulatory action based on health or As discussed in the EPA’s proposal, IV. Incorporation by Reference safety risks subject to Executive Order with the exception of San Luis Obispo, 13045 (62 FR 19885, April 23, 1997); In this rule, the EPA is finalizing • the Districts requested approval to regulatory text that includes is not a significant regulatory action exercise their authority to administer incorporation by reference. In subject to Executive Order 13211 (66 FR the PSD program with respect to those accordance with requirements of 1 CFR 28355, May 22, 2001); • is not subject to requirements of sources located in the relevant District 51.5, the EPA is finalizing the Section 12(d) of the National that have existing PSD permits issued incorporation by reference of the rules Technology Transfer and Advancement by the EPA, including authority to listed in Table 1, with the exception of Act of 1995 (15 U.S.C. 272 note) because conduct general administration of these certain provisions incorporated into application of those requirements would existing permits, authority to process those rules as discussed in Section III. be inconsistent with the CAA; and and issue any and all subsequent PSD The EPA has made, and will continue • does not provide the EPA with the permit actions relating to such permits to make, these documents generally discretionary authority to address, as (e.g., modifications, amendments, or available electronically through appropriate, disproportionate human revisions of any nature), and authority www.regulations.gov and/or in hard health or environmental effects, using to enforce such permits. Pursuant to the copy at the appropriate EPA office (see criteria in section 110(a)(2)(E)(i) of the practicable and legally permissible the ADDRESSES section of this preamble CAA, we have determined that the four methods, under Executive Order 12898 for more information). Districts have the authority, personnel, (59 FR 7629, February 16, 1994). and funding to implement the PSD V. Statutory and Executive Order In addition, the SIP is not approved program within the relevant District for Reviews to apply on any Indian reservation land existing EPA-issued permits and or in any other area where the EPA or Under the CAA, the Administrator is therefore are transferring authority for an Indian tribe has demonstrated that a required to approve a SIP submission such permits to the four Districts tribe has jurisdiction. In those areas of that complies with the provisions of the concurrent with the effective date of the Indian country, the rule does not have Act and applicable Federal regulations. EPA’s approval of the Districts’ PSD tribal implications and will not impose 42 U.S.C. 7410(k); 40 CFR 52.02(a). program into the SIP. The EPA intends substantial direct costs on tribal Thus, in reviewing SIP submissions, the to provide a copy of each such permit governments or preempt tribal law as EPA’s role is to approve State choices, to the relevant District. specified by Executive Order 13175 (65 provided that they meet the criteria of FR 67249, November 9, 2000). III. The EPA’s Final Action the CAA. Accordingly, this action The Congressional Review Act, 5 The EPA is approving five PSD rules merely approves State law as meeting U.S.C. 801 et seq., as added by the Small submitted by CARB to establish a PSD Federal requirements and does not Business Regulatory Enforcement permit program for pre-construction impose additional requirements beyond Fairness Act of 1996, generally provides review of certain new and modified those imposed by State law. For that that before a rule may take effect, the major stationary sources in attainment reason, this action: agency promulgating the rule must or unclassifiable areas. We are • Is not a significant regulatory action submit a rule report, which includes a approving these rules as a revision to subject to review by the Office of copy of the rule, to each House of the the California SIP pursuant to section Management and Budget under Congress and to the Comptroller General 110(k)(3) of the Act. Specifically, we are Executive Orders 12866 (58 FR 51735, of the United States. The EPA will approving the rules listed in Table 1, October 4, 1993) and 13563 (76 FR 3821, submit a report containing this action except for the portion of each rule that January 21, 2011); and other required information to the incorporates by reference 40 CFR • does not impose an information U.S. Senate, the U.S. House of 52.21(b)(49)(v), which was subsequently collection burden under the provisions Representatives, and the Comptroller

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General of the United States prior to Unclassifiable Areas,’’ except for the (F) San Luis Obispo County Air publication of the rule in the Federal incorporation by reference of 40 CFR Pollution Control District. Register. A major rule cannot take effect 52.21(b)(49)(v) into sections C. and D3, (1) Rule 220, ‘‘Federal Prevention of until 60 days after it is published in the adopted on September 5, 2012. Significant Deterioration,’’ except for Federal Register.This action is not a (F) Butte County Air Quality the incorporation by reference of 40 CFR ‘‘major rule’’ as defined by 5 U.S.C. Management District. 52.21(b)(49)(v) into sections B and D.3., 804(2). (1) Rule 1107, ‘‘Prevention of amended on January 22, 2014. Under section 307(b)(1) of the CAA, Significant Deterioration (PSD) (ii) Additional materials. petitions for judicial review of this Permits,’’ except for the incorporation (A) San Luis Obispo County Air action must be filed in the United States by reference of 40 CFR 52.21(b)(49)(v) Pollution Control District. Court of Appeals for the appropriate into sections 3 and 4.1, adopted on June (1) Letter dated December 16, 2014 circuit by January 11, 2016. Filing a 28, 2012. from Larry R. Allen, San Luis Obispo petition for reconsideration by the (ii) Additional materials. County Air Pollution Control District, to Administrator of this final rule does not (A) Great Basin Unified Air Pollution Gerardo Rios, United States affect the finality of this action for the Control District. Environmental Protection Agency purposes of judicial review nor does it (1) Letter dated November 13, 2014 Region 9, regarding clarifications of extend the time within which a petition from Theodore D. Schade, Great Basin District Rule 220 and 40 CFR 51.166. for judicial review may be filed, and Unified Air Pollution Control District, to (442) * * * shall not postpone the effectiveness of Gerardo Rios, United States (i) * * * such rule or action. This action may not Environmental Protection Agency (H) Santa Barbara County Air be challenged later in proceedings to Region 9, regarding clarifications of Pollution Control District. (1) Rule 810, ‘‘Federal Prevention of enforce its requirements. (See CAA District Rule 221 and 40 CFR 51.166. Significant Deterioration (PSD),’’ except section 307(b)(2).) (2) Letter dated April 15, 2015, from for the incorporation by reference of 40 Phillip L. Kiddoo, Great Basin Unified List of Subjects in 40 CFR Part 52 CFR 52.21(b)(49)(v) into sections B and Air Pollution Control District, to D.3., amended on June 20, 2013. Environmental protection, Air Gerardo Rios, United States pollution control, Carbon monoxide, (ii) Additional materials. Environmental Protection Agency (A) Santa Barbara County Air Greenhouse gases, Incorporation by Region 9, regarding additional Pollution Control District. reference, Intergovernmental relations, clarifications of District Rule 221 and 40 (1) Letter dated November 25, 2014 Nitrogen dioxide, Ozone, Particulate CFR 51.166. from David Van Mullem, Santa Barbara matter, Reporting and recordkeeping (B) Butte County Air Quality County Air Pollution Control District, to requirements, Sulfur oxides, Volatile Management District. Gerardo Rios, United States organic compounds. (1) Letter dated November 13, 2014, Environmental Protection Agency Authority: 42 U.S.C. 7401 et seq. from W. James Wagoner, Butte County Region 9, regarding clarifications of Air Quality Management District, to Dated: September 9, 2015. District Rule 810 and 40 CFR 51.166. Gerardo Rios, United States Jared Blumenfeld, * * * * * Environmental Protection Agency Regional Administrator, Region IX. Region 9, regarding clarifications of ■ 3. Section 52.270 is amended by Part 52, chapter I, title 40 of the Code District Rule 1107 and 40 CFR 51.166. adding paragraphs (b)(11) through (15) of Federal Regulations is amended as (2) Letter dated April 8, 2015, from W. to read as follows: follows: James Wagoner, Butte County Air § 52.270 Significant deterioration of air Quality Management District, to Gerardo PART 52—APPROVAL AND quality. Rios, United States Environmental PROMULGATION OF * * * * * Protection Agency Region 9, regarding IMPLEMENTATION PLANS (b) * * * additional clarifications of District Rule (11) The PSD program for the Great ■ 1. The authority citation for part 52 1107 and 40 CFR 51.166. Basin Unified Air Pollution Control continues to read as follows: (429) * * * District (GBUAPCD), as incorporated by (i) * * * Authority: 42 U.S.C. 7401 et seq. reference in § 52.220(c)(428), is (D) Feather River Air Quality approved under Part C, Subpart 1, of the Management District. Clean Air Act. For PSD permits Subpart F—California (1) Rule 10.10, ‘‘Prevention of previously issued by EPA pursuant to Significant Deterioration,’’ except for ■ 2. Section 52.220 is amended by § 52.21 to sources located in the the incorporation by reference of 40 CFR GBUAPCD, this approval includes the adding paragraphs (c)(428)(i)(E) and (F), 52.21(b)(49)(v) into sections B and F.1, (c)(428)(ii), (c)(429)(i)(D), (c)(429)(ii), authority for the GBUAPCD to conduct adopted on August 1, 2011. general administration of these existing (c)(441)(i)(F), (c)(441)(ii), (c)(442)(i)(H), (ii) Additional materials. and (c)(442)(ii) to read as follows: permits, authority to process and issue (A) Feather River Air Quality any and all subsequent permit actions § 52.220 Identification of plan. Management District. relating to such permits, and authority * * * * * (1) Letter dated December 18, 2014 to enforce such permits. (c) * * * from Christopher D. Brown, Feather (12) The PSD program for the Butte (428) * * * River Air Quality Management District, County Air Quality Management District (i) * * * to Gerardo Rios, United States (BCAQMD), as incorporated by (E) Great Basin Unified Air Pollution Environmental Protection Agency reference in § 52.220(c)(428), is Control District. Region 9, regarding clarifications of approved under Part C, Subpart 1, of the (1) Rule 221, ‘‘Prevention of District Rule 10.10 and 40 CFR 51.166. Clean Air Act. For PSD permits Significant Deterioration (PSD) Permit * * * * * previously issued by EPA pursuant to Requirements for New Major Facilities (441) * * * § 52.21 to sources located in the or Major Modifications in Attainment or (i) * * * BCAQMD, this approval includes the

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authority for the BCAQMD to conduct EPA has completed final calculations CSAPR NOX Ozone Season NUSA for a general administration of these existing for the second round of NUSA given state and control period after the permits, authority to process and issue allowance allocations for the 2015 second round of NUSA allocations to any and all subsequent permit actions compliance year of the CSAPR NOX new units are to be allocated to the relating to such permits, and authority Ozone Season Trading Program. EPA existing units in the state according to to enforce such permits. has posted spreadsheets showing the the procedures set forth in 40 CFR (13) The PSD program for the Feather second-round 2015 NUSA allocations of 97.512(a)(10) and (12). EPA has River Air Quality Management District CSAPR NOX Ozone Season allowances determined that CSAPR NOX Ozone (FRAQMD), as incorporated by to new units as well as the allocations Season allowances do remain in the reference in § 52.220(c)(429), is to existing units of the remaining NUSAs for a number of states following approved under Part C, Subpart 1, of the CSAPR NOX Ozone Season allowances completion of second-round 2015 Clean Air Act. For PSD permits not allocated to new units in either NUSA allocations; accordingly, EPA is previously issued by EPA pursuant to round of the 2015 NUSA allocation allocating these allowances to existing § 52.21 to sources located in the process. EPA will record the allocated units. The NUSA allowances are FRAQMD, this approval includes the CSAPR NOX Ozone Season allowances authority for the FRAQMD to conduct in sources’ Allowance Management generally allocated to the existing units general administration of these existing System (AMS) accounts by November in proportion to the allocations permits, authority to process and issue 16, 2015.1 previously made to the existing units under 40 CFR 97.511(a)(1), adjusted for any and all subsequent permit actions DATES: November 12, 2015. rounding. relating to such permits, and authority FOR FURTHER INFORMATION CONTACT: to enforce such permits. Questions concerning this action should Under 40 CFR 97.512(b)(10), any (14) The PSD program for the San be addressed to Robert Miller at (202) allowances remaining in the CSAPR Luis Obispo County Air Pollution 343–9077 or [email protected] or to NOX Ozone Season Indian country Control District (SLOAPCD), as Kenon Smith at (202) 343–9164 or NUSA for a given state and control incorporated by reference in [email protected]. period after the second round of Indian § 52.220(c)(441), is approved under Part SUPPLEMENTARY INFORMATION: Under the country NUSA allocations to new units C, Subpart 1, of the Clean Air Act. are added to the NUSA for that state or (15) The PSD program for the Santa CSAPR FIPs, a portion of each state are made available for allocation by the Barbara County Air Pollution Control budget for each of the four CSAPR District (SBAPCD), as incorporated by trading programs is reserved as a NUSA state pursuant to an approved SIP reference in § 52.220(c)(442), is from which allowances are allocated to revision. No new units eligible for approved under Part C, Subpart 1, of the eligible units through an annual one- or allocations of CSAPR NOX Ozone Clean Air Act. For PSD permits two-round process. EPA has described Season allowances from any 2015 previously issued by EPA pursuant to the CSAPR NUSA allocation process in Indian country NUSA have been § 52.21 to sources located in the three NODAs previously published in identified, and no state has an approved SBAPCD, this approval includes the the Federal Register (80 FR 30988, June SIP revision governing allocation of authority for the SBAPCD to conduct 1, 2015; 80 FR 44882, July 28, 2015; 80 2015 CSAPR allowances. The Indian general administration of these existing FR 55061, September 14, 2015). In the country NUSA allowances are therefore permits, authority to process and issue most recent of these previous NODAs, being added to the NUSAs for the any and all subsequent permit actions EPA provided notice of preliminary lists respective states and are included in the relating to such permits, and authority of new units eligible for second-round pools of allowances that are being to enforce such permits. 2015 NUSA allocations of CSAPR NOX allocated to existing units under 40 CFR Ozone Season allowances and provided [FR Doc. 2015–28624 Filed 11–10–15; 8:45 am] 97.512(10) and (12). an opportunity for the public to submit BILLING CODE 6560–50–P The final unit-by-unit data and objections. EPA received no substantive allowance allocation calculations are set objections to the preliminary lists of forth in Excel spreadsheets titled ENVIRONMENTAL PROTECTION ‘‘CSAPR_NUSA_2015_NOX_OS_2nd_ AGENCY new units eligible for second-round _ _ _ _ 2015 NUSA allocations of CSAPR NO Round Final Data New Units’’, and X ______Ozone Season allowances whose ‘‘CSAPR NUSA 2015 NOX OS 2nd 40 CFR Part 97 _ _ _ _ availability was announced in the Round Final Data Existing Units’’, [FRL–9936–99–OAR] September 14 NODA. The only written available on EPA’s Web site at http:// objection that EPA received concerned www.epa.gov/crossstaterule/ Allocations of Cross-State Air actions.html. Pollution Rule Allowances From New the format of the data rather than the Unit Set-Asides for the 2015 substance. EPA is therefore making Pursuant to CSAPR’s allowance Compliance Year second-round 2015 NUSA allocations of recordation timing requirements, the CSAPR NOX Ozone Season allowances allocated NUSA allowances will be AGENCY: Environmental Protection to the new units identified on these lists recorded in sources’ AMS accounts by Agency (EPA). in accordance with the procedures set November 16, 2015. EPA notes that an ACTION: Final rule; notice of data forth in 40 CFR 97.512(a)(9) and (12). allocation or lack of allocation of availability (NODA). As described in the September 14 allowances to a given unit does not NODA, any allowances remaining in the SUMMARY: The Environmental Protection constitute a determination that CSAPR does or does not apply to the unit. EPA Agency (EPA) is providing notice of 1 Under 40 CFR 97.521(i), the deadline for EPA emission allowance allocations to recordation of these allowances allocated under 40 also notes that NUSA allocations of certain units under the new unit set- CFR 97.511 and 97.512 for 2015 is November 15, CSAPR NOX Ozone Season allowances aside (NUSA) provisions of the Cross- 2015. However, since November 15, 2015 falls on are subject to potential correction if a a Sunday, under 40 CFR 97.507(c), the deadline for unit to which NUSA allowances have State Air Pollution Rule (CSAPR) EPA recordation of allocations is the next business federal implementation plans (FIPs). day, which is Monday, November 16, 2015. been allocated for a given compliance

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year is not actually an affected unit as the Commission and inseason orders of August 1, 2015, through 12 p.m. (noon), of May 1 of the compliance year.2 the Commission’s Fraser River Panel for Wednesday, August 5, 2015. Authority: 40 CFR 97.511(b). U.S. sockeye and pink salmon fisheries Areas 6, 7, and 7A: Open for net in the Fraser River Panel Area. fishing from 5 a.m. to 11:59 p.m. Dated: November 4, 2015. The regulations close the U.S. portion (midnight), Saturday, August 1, 2015, Reid P. Harvey, of the Fraser River Panel Area to U.S. and from 5 a.m. to 11:59 p.m. Director, Clean Air Markets Division, Office sockeye and pink salmon tribal and (midnight), Monday, August 3, 2015. of Atmospheric Programs, Office of Air and non-tribal commercial fishing unless Radiation. opened by Panel orders that are given All Citizen Fishery [FR Doc. 2015–28766 Filed 11–10–15; 8:45 am] effect by inseason regulations published Areas 7 and 7A: Open to reefnets from BILLING CODE 6560–50–P by NMFS. During the fishing season, 9 a.m. to 9 p.m., Saturday, August 1, NMFS may issue regulations that 2015. establish fishing times and areas Areas 7 and 7A: Open to purse seines DEPARTMENT OF COMMERCE consistent with the Commission from 9 a.m. to 9 p.m., Sunday, August agreements and inseason orders of the 2, 2015. National Oceanic and Atmospheric Panel. Such orders must be consistent Areas 7 and 7A: Open to drift gillnets Administration with domestic legal obligations and are from 11 a.m. to 11 p.m., Sunday, August issued by the Regional Administrator, 2, 2015. 50 CFR Part 300 West Coast Region, NMFS. Official Fraser River Panel Order Number 2015± RIN 0648–XE261 notification of these inseason actions is provided by two telephone hotline 04: Issued 12:30 p.m., August 4, 2015 Fraser River Sockeye and Pink Salmon numbers described at 50 CFR Treaty Indian Fishery Fisheries; Inseason Orders 300.97(b)(1) and in 80 FR 25611 (May 5, 2015). The inseason orders are Areas 4B, 5, and 6C: Extend for drift AGENCY: National Marine Fisheries published in the Federal Register as gillnets from 12 p.m. (noon), Service (NMFS), National Oceanic and soon as practicable after they are issued. Wednesday, August 5, 2015, to 12 p.m. Atmospheric Administration (NOAA), Due to the frequency with which (noon), Saturday, August 8, 2015. Commerce. inseason orders are issued, publication Areas 6, 7, and 7A: Open for net ACTION: Temporary orders; inseason of individual orders is impractical. fishing from 5 a.m., Thursday, August 6, 2015, to 9 a.m., Friday, August 7, 2015. orders. Inseason Orders SUMMARY: NMFS publishes Fraser River The following inseason orders were All Citizen Fishery salmon inseason orders to regulate adopted by the Panel and issued for U.S. Areas 7 and 7A: Open to reefnets from treaty and non-treaty (all citizen) fisheries by NMFS during the 2015 5 a.m. to 9 p.m., Thursday, August 6, commercial salmon fisheries in U.S. fishing season. Each of the following 2015, and 5 a.m. to 9 p.m., Friday, waters. The orders were issued by the inseason actions was effective upon August 7, 2015. Fraser River Panel (Panel) of the Pacific announcement on telephone hotline Areas 7 and 7A: Open to purse seines Salmon Commission (Commission) and numbers as specified at 50 CFR from 5 a.m. to 9 p.m., Wednesday, subsequently approved and issued by 300.97(b)(1) and in 80 FR 25611 (May 5, August 5, 2015, and 5 a.m. to 9 p.m., NMFS during the 2015 salmon fisheries 2015); those dates and times are listed Friday, August 7, 2015. within the U.S. Fraser River Panel Area. herein. The times listed are local times, Areas 7 and 7A: Open to drift gillnets These orders established fishing dates, and the areas designated are Puget from 8 a.m. to 11:59 p.m. (midnight), times, and areas for the gear types of Sound Management and Catch Wednesday, August 5, 2015, and from 8 U.S. treaty Indian and all citizen Reporting Areas as defined in the a.m. to 11:59 p.m. (midnight), Friday, commercial fisheries during the period Washington State Administrative Code August 7, 2015. the Panel exercised jurisdiction over at Chapter 220–22. these fisheries. Fraser River Panel Order Number 2015± Fraser River Panel Order Number 2015± 05: Issued 12:30 p.m., August 7, 2015 DATES: The effective dates for the 01: Issued 12:15 p.m., July 24, 2015 inseason orders are set out in this Treaty Indian Fishery Treaty Indian Fishery document under the heading Inseason Areas 4B, 5, and 6C: Extend for drift Areas 4B, 5, and 6C: Open to drift Orders. gillnets from 12 p.m. (noon), Saturday, gillnets 12 p.m. (noon), Saturday, July FOR FURTHER INFORMATION CONTACT: August 8, 2015, to 12 p.m. (noon), 25, 2015, to 12 p.m. (noon), Wednesday, Peggy Mundy at 206–526–4323. Wednesday, August 12, 2015. July 29, 2015. SUPPLEMENTARY INFORMATION: The Areas 6, 7, and 7A: Open for net Treaty between the Government of the Fraser River Panel Order Number 2015± fishing from 5 a.m., Sunday, August 9, United States of America and the 02: Issued 11:50 a.m., July 28, 2015 2015, to 9 a.m., Tuesday, August 11, 2015. Government of Canada concerning Treaty Indian Fishery Pacific Salmon was signed at Ottawa on All Citizen Fishery January 28, 1985, and subsequently was Areas 4B, 5, and 6C: Extend for drift given effect in the United States by the gillnets from 12 p.m. (noon), Areas 7 and 7a: Open to reefnets from Pacific Salmon Treaty Act (Act) at 16 Wednesday, July 29, 2015, through 12 5 a.m. to 9 p.m., Saturday, August 8, U.S.C. 3631–3644. p.m. (noon), Saturday, August 1, 2015. 2015. Under authority of the Act, Federal Fraser River Panel Order Number 2015± Areas 7 and 7A: Open to purse seines regulations at 50 CFR part 300, subpart 03: Issued 12:30 p.m., July 31, 2015 from 5 a.m. to 9 p.m., Saturday, August F, provide a framework for the 8, 2015. implementation of certain regulations of Treaty Indian Fishery Areas 7 and 7A: Open to drift gillnets Areas 4B, 5, and 6C: Extend for drift from 8 a.m. to 11:59 p.m. (midnight), 2 See 40 CFR 97.511(c). gillnets from 12 p.m. (noon), Saturday, Saturday, August 8, 2015.

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Fraser River Panel Order Number 2015± Fraser River Panel Order Number 2015± effective date of the inseason orders 06: Issued 8:30 p.m., August 24, 2015 08: Issued 9:45 a.m., August 31, 2015 would not allow fishers appropriately controlled access to the available fish at All Citizen Fishery Treaty Indian Fishery that time they are available. Areas 7 and 7A: Open to reefnets, Areas 4B, 5, and 6C: Open to drift This action is authorized by 50 CFR with non-retention of sockeye, from 5 gillnets from 12 p.m. (noon), Tuesday, 300.97, and is exempt from review a.m. to 9 p.m., Tuesday, September 1, August 25, 2015, through 12 p.m. under Executive Order 12866. 2015. (noon), Saturday, August 29, 2015. Areas 7 and 7A: Open to purse seines, Authority: 16 U.S.C. 3636(b). Sockeye may be retained for ceremonial with non-retention of sockeye, from 5 Dated: November 5, 2015. and subsistence purposes only. a.m. to 9 p.m., Tuesday, September 1, Emily H. Menashes, Areas 6, 7, and 7A: Open for net 2015. Acting Director, Office of Sustainable fishing from 5:00 a.m., Thursday, Areas 7 and 7A: Open to drift gillnets, Fisheries, National Marine Fisheries Service. August 27, 2015, through 9:00 a.m., with non-retention of sockeye, from 8 [FR Doc. 2015–28673 Filed 11–10–15; 8:45 am] Saturday, August 29, 2015. Sockeye may a.m. to 11:59 p.m. (midnight), Tuesday, BILLING CODE 3510–22–P be retained for ceremonial and September 1, 2015. subsistence purposes only. Fraser River Panel Order Number 2015± DEPARTMENT OF COMMERCE All Citizen Fishery 09: Issued 11:50 a.m., September 8, 2015 National Oceanic and Atmospheric Areas 7 and 7A: Open to reefnets, Administration with non-retention of sockeye, from 5 Treaty Indian and All Citizen Fisheries a.m. to 9 p.m., Wednesday, August 26, Areas 4B, 5, 6, 6C, 7, and 7A, 50 CFR Part 660 2015, and 5 a.m. to 9 p.m., Thursday, excluding the Apex: Relinquish August 27, 2015. regulatory control effective 11:59 p.m. [Docket No. 150316270–5270–01] Areas 7 and 7A: Open to purse seines, (midnight), Tuesday, September 8, 2015. RIN 0648–XE259 with non-retention of sockeye, from 5 The Apex is those waters north and a.m. to 9 p.m., Tuesday, August 25, west of the Area 7A ‘‘East Point Line,’’ Fisheries Off West Coast States; 2015, and 5 a.m. to 9 p.m., Wednesday, defined as a line projected from the low Modifications of the West Coast August 26, 2015. water range marker in Boundary Bay on Commercial and Recreational Salmon the U.S./Canada border through the east Fisheries; Inseason Actions #37 Areas 7 and 7A: Open to drift gillnets, tip of Point Roberts, WA, to the East Through #39 with non-retention of sockeye, from 8 Point Light on Saturna Island in the a.m. to 11:59 p.m. (midnight), Tuesday, Canadian Province of British Columbia. AGENCY: National Marine Fisheries August 25, 2015, and 8 a.m. to 11:59 Service (NMFS), National Oceanic and p.m. (midnight), Wednesday, August 26, Fraser River Panel Order Number 2015± Atmospheric Administration (NOAA), 2015. 10: Issued 3 p.m., October 8, 2015 Commerce. Fraser River Panel Order Number 2015± Treaty Indian and All Citizen Fisheries ACTION: Modification of fishing seasons; 07: Issued 12:30 p.m., August 28, 2015 Area 7A, the Apex: Relinquish request for comments. regulatory control in the remaining Treaty Indian Fishery SUMMARY: NMFS announces three portion of catch area 7A, referred to as inseason actions in the ocean salmon Areas 4B, 5, and 6C: Extend for drift the Apex, effective 11:59 p.m. fisheries. These inseason actions gillnets from 12 p.m. (noon), Saturday, (midnight), Friday, October 9, 2015. modified the commercial salmon August 29, 2015, through 12 p.m. Classification fisheries in the area from the U.S./ (noon), Wednesday, September 2, 2015. The Assistant Administrator for Canada border to Humboldt South Jetty, Sockeye may be retained for ceremonial Fisheries NOAA (AA), finds that good CA. and subsistence purposes only. cause exists for the inseason orders to be DATES: The effective dates for the Areas 6, 7, and 7A: Open for net issued without affording the public inseason actions are set out in this fishing from 5 a.m., Monday, August 31, prior notice and opportunity for document under the heading Inseason 2015, through 9 a.m., Tuesday, comment under 5 U.S.C. 553(b)(B) as Actions. Comments will be accepted September 1, 2015. Sockeye may be such prior notice and opportunity for through November 27, 2015. retained for ceremonial and subsistence comments is impracticable and contrary ADDRESSES: You may submit comments, purposes only. to the public interest. Prior notice and identified by NOAA–NMFS–2015–0001, opportunity for public comment is by any one of the following methods: All Citizen Fishery impracticable because NMFS has • Electronic Submissions: Submit all Areas 7 and 7A: Open to reefnets, insufficient time to allow for prior electronic public comments via the with non-retention of sockeye, from 5 notice and opportunity for public Federal eRulemaking Portal. Go to a.m. to 9 p.m., Sunday August 30, 2015, comment between the time the stock www.regulations.gov/ and from 5 a.m. to 9 p.m., Monday, abundance information is available to #!docketDetail;D=NOAA-NMFS-2015- August 31, 2015. determine how much fishing can be 0001, click the ‘‘Comment Now!’’ icon, allowed and the time the fishery must complete the required fields, and enter Areas 7 and 7A: Open to purse seines, open and close in order to harvest the or attach your comments. with non-retention of sockeye, from 5 appropriate amount of fish while they • Mail: William W. Stelle, Jr., a.m. to 9 p.m., Sunday, August 30, 2015. are available. Regional Administrator, West Coast Areas 7 and 7A: Open to drift gillnets, The AA also finds good cause to Region, NMFS, 7600 Sand Point Way with non-retention of sockeye, from 8 waive the 30-day delay in the effective NE., Seattle, WA 98115–6349 a.m. to 11:59 p.m. (midnight), Sunday, date, required under 5 U.S.C. 553(d)(3), Instructions: Comments sent by any August 30, 2015. of the inseason orders. A delay in the other method, to any other address or

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individual, or received after the end of Inseason Actions Reason and authorization for the the comment period, may not be action: The purpose of this action was Inseason Action #37 considered by NMFS. All comments to allow for increased access to the coho received are a part of the public record Description of action: Inseason action quota, which had not been fully and will generally be posted for public #37 adjusted the remaining coho quota utilized, while not exceeding the impact viewing on www.regulations.gov in the commercial salmon fishery from limits for protected stocks. The annual without change. All personal identifying Queets River, WA, to Cape Falcon, OR, management measures (80 FR 25611, information (e.g., name, address, etc.), on an impact-neutral basis, from mark- May 5, 2015) provide for inseason confidential business information, or selective to non-mark-selective. The action to modify the regulations that otherwise sensitive information adjusted non-mark-selective coho quota restrict retention of unmarked coho. The submitted voluntarily by the sender will was 6,100. RA considered fishery effort, coho catch be publicly accessible. NMFS will Effective dates: Inseason action #37 to date, and the non-mark-selective accept anonymous comments (enter took effect on September 18, 2015, and quota conversion implemented under ‘‘N/A’’ in the required fields if you wish remained in effect until the end of the inseason action #37, and determined to remain anonymous). commercial salmon fishing season. that modifying the fishery to allow Reason and authorization for the FOR FURTHER INFORMATION CONTACT: retention of unmarked coho could be action: The purpose of this action was implemented within the allowable Peggy Mundy at 206–526–4323. to allow for increased access to the coho SUPPLEMENTARY INFORMATION: impacts on the constraining stock and quota, which had not been fully without exceeding the non-mark- Background utilized, while not exceeding the impact selective coho quota. Inseason action to limits for protected stocks. The annual In the 2015 annual management modify limited retention regulations is management measures (80 FR 25611, authorized by 50 CFR 660.409(b)(1)(i). measures for ocean salmon fisheries (80 May 5, 2015) provide for inseason Consultation date and participants: FR 25611, May 5, 2015), NMFS action to modify the regulations that Consultation on inseason action #38 announced the commercial and restrict retention of unmarked coho. To occurred on September 17, 2015. recreational fisheries in the area from accommodate modifying the regulations Participants in this consultation were the U.S./Canada border to the U.S./ from a mark-selective to non-mark- staff from NMFS, WDFW, and ODFW. Mexico border, beginning May 1, 2015, selective coho fishery while still Council staff was unavailable to and 2016 salmon fisheries opening achieving management objectives, participate in the consultation, but was earlier than May 1, 2016. NMFS is including not exceeding allowable advised of the RA’s decision after the authorized to implement inseason impacts on constraining stocks, the consultation concluded. management actions to modify fishing Council’s Salmon Technical Team (STT) seasons and quotas as necessary to calculated the necessary adjustments to Inseason Action #39 provide fishing opportunity while the coho quota on an impact-neutral Description of action: Inseason action meeting management objectives for the basis for the constraining stocks in the #39 modified the open period in the affected species (50 CFR 660.409). Queets River to Cape Falcon area. In this commercial salmon fishery in the Inseason actions in the salmon fishery instance, the constraining stock was California KMZ from five days per week may be taken directly by NMFS (50 CFR Lower Columbia River natural coho. to seven days per week. 660.409(a)—Fixed inseason The RA approved the STT’s impact- Effective dates: Inseason action #39 management provisions) or upon neutral conversion of the remaining took effect on September 23, 2015, and consultation with the Pacific Fishery recreational mark-selective coho quota remained in effect until the end of the Management Council (Council) and the to non-mark-selective coho quota. 2015 commercial salmon fishery. appropriate State Directors (50 CFR Modification of quotas and/or fishing 660.409(b)—Flexible inseason seasons is authorized by 50 CFR Reason and authorization for the management provisions). The state 660.409(b)(1)(i). action: During the preseason planning management agencies that participated Consultation date and participants: process, the open period for the in the consultations described in this Consultation on inseason action #37 commercial salmon fishery in the document were: California Department occurred on September 17, 2015. California KMZ, September 11 through of Fish and Wildlife (CDFW), Oregon Participants in this consultation were September 30, was set at five days per Department of Fish and Wildlife staff from NMFS, WDFW, and ODFW. week (Friday through Tuesday), to (ODFW), and Washington Department of Council staff was unavailable to manage landings in this quota-based Fish and Wildlife (WDFW). participate in the consultation, but was fishery. The RA considered fishery Management of the salmon fisheries is advised of the RA’s decision after the effort and Chinook landings to date, generally divided into two geographic consultation concluded. both of which were very low due to areas: North of Cape Falcon (U.S./ unfishable weather conditions and lack Canada border to Cape Falcon, OR) and Inseason Action #38 of productive fishing, and determined south of Cape Falcon (Cape Falcon, OR, Description of action: Inseason action that allowing the fishery to remain open to the U.S./Mexico border). The #38 modified landing and possession seven days per week would provide inseason actions reported in this limits in the commercial salmon fishery access to remaining Chinook quota document affect fisheries north and between Queets River and Cape Falcon without risk of exceeding the quota for south of Cape Falcon. Within the south to allow retention of 80 non-mark- the season. Modification of quotas and/ of Cape Falcon area, the Klamath selective coho per vessel per open or fishing seasons is authorized by 50 Management Zone (KMZ) extends from period. The previous landing limit for CFR 660.409(b)(1)(i). Humbug Mountain, OR, to Humboldt coho was 50 marked coho per vessel per Consultation date and participants: South Jetty, CA, and is divided at the open period. Consultation on inseason action #39 Oregon/California border into the Effective dates: Inseason action #38 occurred on September 21, 2015. Oregon KMZ to the north and California took effect on September 18, 2015, and Participants in this consultation were KMZ to the south. All times mentioned remained in effect until the end of the staff from NMFS, Council, CDFW, and refer to Pacific daylight time. commercial salmon fishing season. ODFW.

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All other restrictions and regulations Classification fisheries impacts were calculated, and remain in effect as announced for the The Assistant Administrator for the time the fishery modifications had 2015 ocean salmon fisheries and 2016 Fisheries, NOAA (AA), finds that good to be implemented in order to ensure salmon fisheries opening prior to May 1, cause exists for this notification to be that fisheries are managed based on the 2016 (80 FR 25611, May 5, 2015) and as issued without affording prior notice best available scientific information, modified by prior inseason actions. and opportunity for public comment ensuring that conservation objectives and ESA consultation standards are not The RA determined that the best under 5 U.S.C. 553(b)(B) because such exceeded. The AA also finds good cause available information indicated that notification would be impracticable. As previously noted, actual notice of the to waive the 30-day delay in coho and Chinook salmon catch to date effectiveness required under 5 U.S.C. and fishery effort supported the above regulatory actions was provided to fishers through telephone hotline and 553(d)(3), as a delay in effectiveness of inseason actions recommended by the radio notification. These actions comply these actions would allow fishing at states of Washington, Oregon, and with the requirements of the annual levels inconsistent with the goals of the California. The states manage the management measures for ocean salmon Salmon FMP and the current fisheries in state waters adjacent to the fisheries (80 FR 25611, May 5, 2015), management measures. areas of the U.S. exclusive economic the West Coast Salmon Fishery These actions are authorized by 50 zone in accordance with these Federal Management Plan (Salmon FMP), and CFR 660.409 and 660.411 and are actions. As provided by the inseason regulations implementing the Salmon exempt from review under Executive notice procedures of 50 CFR 660.411, FMP, 50 CFR 660.409 and 660.411. Prior Order 12866. actual notice of the described regulatory notice and opportunity for public Authority: 16 U.S.C. 1801 et seq. actions was given, prior to the time the comment was impracticable because action was effective, by telephone NMFS and the state agencies had Dated: November 5, 2015. hotline numbers 206–526–6667 and insufficient time to provide for prior Emily H. Menashes, 800–662–9825, and by U.S. Coast Guard notice and the opportunity for public Acting Director, Office of Sustainable Notice to Mariners broadcasts on comment between the time Chinook Fisheries, National Marine Fisheries Service. Channel 16 VHF–FM and 2182 kHz. salmon catch and effort assessments and [FR Doc. 2015–28674 Filed 11–10–15; 8:45 am] projections were developed and BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 80, No. 218

Thursday, November 12, 2015

This section of the FEDERAL REGISTER information that is exempt from public Consumer Products Other Than contains notices to the public of the proposed disclosure, may not be publicly Automobiles.2 These products include issuance of rules and regulations. The available. commercial prerinse spray valves purpose of these notices is to give interested A link to the docket Web page can be (CPSVs), the subject of this rulemaking.3 persons an opportunity to participate in the found at: http://www.regulations.gov/ EPCA, as amended, prescribes energy rule making prior to the adoption of the final rules. #!docketDetail;D=EERE-2014-BT-STD- conservation standards for commercial 0027. The regulations.gov Web page prerinse spray valves (42 U.S.C. contains instructions on how to access 6295(dd)), and requires DOE to conduct DEPARTMENT OF ENERGY all documents in the docket, including rulemakings to determine whether to public comments. amend CPSV standards no later than 6 10 CFR Parts 429 and 431 For further information on how to years after issuance of any final rule review the docket, contact Ms. Brenda establishing or amending a standard. (42 [Docket Number EERE–2014–BT–STD– U.S.C. 6295(m)(1)) 0027] Edwards at (202) 586–2945 or by email at [email protected]. DOE published a notice of proposed RIN 1904–AD31 FOR FURTHER INFORMATION CONTACT: Mr. rulemaking (NOPR) proposing amended James Raba, U.S. Department of Energy, energy conservation standards for Energy Conservation Standards for Office of Energy Efficiency and commercial prerinse spray valves on Commercial Prerinse Spray Valves: Renewable Energy, Building July 9, 2015 (herein known as ‘‘the Availability of Provisional Analysis Technologies Office, EE–5B, 1000 CPSV NOPR’’). 80 FR 39486. DOE Tools Independence Avenue SW., posted the CPSV NOPR, as well as the Washington, DC 20585–0121. complete CPSV NOPR technical support AGENCY: Office of Energy Efficiency and 4 Telephone: (202) 586–8654. Email: document (TSD), on its Web site. The Renewable Energy, Department of NOPR and associated TSD proposed Energy. commercial_pre-rinse_spray_valves@ EE.Doe.Gov. new CPSV product classes based on ACTION: Notice of data availability spray force, and presented results for (NODA). Mr. Peter Cochran, U.S. Department of Energy, Office of the General Counsel, the engineering analysis, economic analyses, and proposed standard levels. SUMMARY: The U.S. Department of GC–33, 1000 Independence Avenue DOE held a public meeting on July 28, Energy (DOE) published a notice of SW., Washington, DC 20585–0121. 2015 to present the CPSV NOPR. At the proposed rulemaking (NOPR) for the Telephone: (202) 586–7935. Email: [email protected]. public meeting, and during the commercial prerinse spray valve (CPSV) comment period, DOE received energy conservation standards SUPPLEMENTARY INFORMATION: comments that addressed issues raised rulemaking on July 9, 2015. 80 FR in the CPSV NOPR. 39486. In response to comments on the Table of Contents NOPR, DOE has revised its analyses. I. History of Energy Conservation Standards II. Current Status This NODA announces the availability Rulemaking for Commercial Prerinse In response to comments DOE of those updated analyses and results, Spray Valves received in response to the CPSV NOPR, II. Current Status and give interested parties an DOE has revised the analyses presented opportunity to comment and submit III. Summary of the Analyses Performed by the Department of Energy in the CPSV NOPR. This NODA additional data to support DOE’s CPSV A. Engineering Analysis announces the availability of those rulemaking. At this time, DOE is not 1. Summary of Engineering Updates for the updated analyses and results and invites proposing any energy conservation NODA interested parties to submit comments standard for commercial prerinse spray B. Life-Cycle Cost and Payback Period or additional data to support DOE’s valves. The NODA analysis is publically Analysis ongoing CPSV rulemaking. available at: https:// C. National Impact Analysis www1.eere.energy.gov/buildings/ D. Manufacturer Impact Analysis 2 All references to EPCA in this document refer appliance_standards/ IV. Results of the Economic Analyses to the statute as amended through the Energy rulemaking.aspx?ruleid=100. A. Economic Impacts on Consumers Efficiency Improvement Act of 2015, Pub. L. 114– B. Economic Impacts on the Nation 11 (Apr. 30, 2015). DATES: DOE will accept comments, data, C. Economic Impacts on Manufacturers 3 Because Congress included commercial prerinse and information regarding this NODA V. Public Participation spray valves in Part A of Title III of EPCA, the A. Submission of Comments consumer product provisions of Part A (not the submitted no later than November 27, industrial equipment provisions of Part A–1) apply 2015. I. History of Energy Conservation to commercial prerinse spray valves. However, because commercial prerinse spray valves are ADDRESSES: The docket, which includes Standards Rulemaking for Commercial commonly considered to be commercial equipment, Federal Register notices, public meeting Prerinse Spray Valves as a matter of administrative convenience and to attendee lists and transcripts, 1 minimize confusion among interested parties, DOE Title III, Part B of the Energy Policy placed the requirements for commercial prerinse comments, and other supporting and Conservation Act of 1975 (EPCA), spray valves into subpart O of 10 CFR part 431. [71 documents/materials, is available for Public Law 941–163 (42 U.S.C. 6291– FR 71340, 71374 (Dec. 8, 2006)]. Part 431 contains review at www.regulations.gov. All 6309, as codified) established the DOE regulations for commercial and industrial documents in the docket are listed in equipment. Energy Conservation Program for 4 the www.regulations.gov index. The CPSV NOPR notice, CPSV NOPR TSD, and CPSV NOPR analysis public meeting information However, some documents listed in the 1 For editorial reasons, upon codification in the are available at regulations.gov under docket index, such as those containing U.S. Code, Part B was redesignated Part A. number EERE–2014–BT–STD–0027.

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The analysis tools described in this rates for each product class. DOE flow rate is presented in the notice were developed to support a received feedback from interested accompanying engineering spreadsheet. potential energy conservation standard parties opposing the three product class DOE constructed the flow rate-spray for commercial prerinse spray valves. At structure and recommending a single force relationship using data primarily this time, DOE intends to move forward product class. (Chicago Faucets, No. 26 from DOE testing, and supplementary with its traditional regulatory at pp. 1–2; PMI, No. 27 at p. 1; Fisher, data from DOE’s Compliance rulemaking activities to develop an No. 30 at p. 1; ASAP, NEEA, NRDC, No. Certification Management System energy conservation standard for 32 at p. 1; PG&E, SCE, SCGC, SDG&E, (CCMS), the U.S. Environmental commercial prerinse spray valves. The No. 34 at p. 1–2; AWE, No. 28 at p. 7; Protection Agency’s (EPA) WaterSense® provisional analysis presented in and T&S Brass, No. 33 at p. 2) program, and Food Service Technology today’s notice is a step in this process. DOE is required by EPCA to consider Center (FSTC) reports.567 Additionally, The final rule will include a TSD, which performance-related features that justify DOE’s research shows that spray force will contain a detailed written account different standard levels, such as relates to user satisfaction; a WaterSense of the analyses performed in support of features affecting customer utility, when field study found that low water the final rule, which will include establishing or amending energy pressure, or spray force, is a source of updates to the analyses made available conservation standards. 42 U.S.C. user dissatisfaction. WaterSense in this NODA. 6295(q)) In response to comments from evaluated 14 commercial prerinse spray In this NODA, DOE is not proposing interested parties, DOE reviewed the valve models and collected 56 consumer any energy conservation standards for market for commercial prerinse spray satisfaction reviews, of which 9 commercial prerinse spray valves. DOE valves and available data regarding their indicated unsatisfactory performance. may revise the analysis presented in the typical performance and usage Seven of the nine unsatisfactory reviews NODA based on any new or updated characteristics in different applications. were attributed, among other factors, to information or data it obtains between DOE market research shows that the water pressure, or the user- now and the publication of the final rule commercial prerinse spray valves have perceived force of the spray.8 Therefore, for commercial prerinse spray valves. a range of flow rates, spray forces, and DOE concludes that separating DOE encourages stakeholders to provide spray shapes. For example, commercial prerinse spray valves into any additional data or information that manufacturers market commercial product classes based on spray force is may improve the analysis. prerinse spray valves at lower flow rates justified, because spray force is a with specific terminology such as performance-related feature that affects III. Summary of the Analyses ‘‘ultra-low-flow’’ or ‘‘low-flow’’ spray Performed by the Department of Energy consumer utility, and spray force is valves, indicating that there are diverse strongly correlated with flow rate. DOE conducted analyses of products available to satisfy different To determine the number of product commercial prerinse spray valves in the consumer needs when selecting classes, DOE tested and analyzed a wide following areas: (1) Engineering, (2) commercial prerinse spray valves. range of CPSV units on the market, manufacturer impacts, (3) life-cycle cost Conversely, for commercial prerinse spanning multiple manufacturers, flow and payback period, and (4) national spray valves at higher flow rates, DOE rates, and spray shapes. Based on DOE’s impacts. The tools used in preparing has predominately observed shower- test data and additional market research, these analyses (engineering, life-cycle type units. Shower-type units contain DOE found that available CPSV models cost, national impacts, and multiple orifices, as opposed to more could be differentiated into three manufacturer impacts spreadsheets) and traditional, single-orifice CPSV unit. In distinct spray force ranges. DOE their respective results are available at: the CPSV NOPR public meeting, T&S believes that each spray force range http://www.regulations.gov/ Brass stated that consumer satisfaction represents a specific CPSV application. #!docketDetail;D=EERE-2014-BT-STD- is very high at the upper range of the This conclusion is supported by 0027. Each individual spreadsheet market flow rate distribution, and that comments submitted by T&S Brass to includes an introduction describing the the showerhead-type commercial the Framework document, suggesting various inputs and outputs for the prerinse spray valves in the upper range three product classes: (1) An ultra low- analysis, as well as operation of the market flow rate distribution flow commercial prerinse spray valve instructions. A brief description of each represent the majority of the market and with a maximum flow rate of 0.8 gallons of these analysis tools is provided highest level of customer satisfaction per minute (gpm), (2) a low-flow below. The key aspects of the present because these units prevent splash-back. commercial prerinse spray valve with analyses and DOE’s updates to the CPSV (T&S, Public Meeting Transcript, No. 23 flow rates of 0.8 to 1.28 gpm, and (3) a NOPR analyses are described in the at pp. 42–43) T&S Brass also standard commercial prerinse spray following sections. commented that there are several valve with flow rates of 1.28 to 1.6 gpm. applications of commercial prerinse A. Engineering Analysis (T&S Brass, No. 12 at p. 3) Therefore, in spray valves, and all may require this NODA, DOE maintains the three The engineering analysis establishes different spray forces. (T&S Brass, the relationship between the Public Meeting Transcript, No. 6 at p. 5 DOE compliance certification data for manufacturer production cost (MPC) 39) Based on the above information, commercial prerinse spray valves available at and efficiency levels for each product DOE believes that the CPSV market www.regulations.doe.gov/certification-data/. class of commercial prerinse spray offers a variety of prerinse spray valves 6 EPA WaterSense program, September 19, 2013. valves. This relationship serves as the that have different design features and WaterSense Specification for Commercial Pre-Rinse Spray Valves Supporting Statement. Version 1.0. basis for cost-benefit calculations different end-user applications that http://www.epa.gov/watersense/partners/prsv_ performed in the other three analysis affect consumer utility. final.html. tools for individual consumers, Additionally, DOE found a strong 7 Food Service Technology Center test data for manufacturers, and the nation. linear relationship between spray force prerinse spray valves available at In the CPSV NOPR, DOE proposed and flow rate, indicating that spray force www.fishnick.com/equipment/sprayvalves/. 8 EPA WaterSense, Prerinse Spray Valves Field three product classes that were is an important performance related Study Report, at 24±25 (Mar. 31, 2011) (Available delineated by spray force. DOE analyzed feature that affects consumer utility. The at: www.epa.gov/watersense/docs/final_epa_prsv_ several efficiency levels of specific flow relationship between spray force and study_report_033111v2_508.pdf).

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product classes presented in the CPSV flow rate into spray force using the flow assumptions in its engineering analysis NOPR. However, based on feedback rate-spray force linear relationship presented in this NODA. In addition, from interested parties, DOE renames equates 1.28 gpm to 8.5 ozf. This spray DOE conducted additional testing of the product classes as product class 1, force can be conservatively rounded to CPSV units to gather more data on the 2, and 3 instead of using the 8.0 ozf. range of CPSV products available in the terminology ‘‘light-duty’’, ‘‘standard- DOE selected 5.0 ozf as the spray market. Specifically, DOE’s revised duty’’, and ‘‘heavy-duty,’’ respectively. force cut-off between product class 1 updates include the following: As defined, product class 1 provides and product class 2 based on DOE’s test • Based on new test data, DOE distinct utility for cleaning delicate data and market research, which clearly updated the flow rate-spray force glassware and removing loose food showed a cluster of CPSV units above relationship, which is presented in the particles from dishware, product class 2 and below that threshold. One cluster of accompanying engineering spreadsheet. provides distinct utility for cleaning wet CPSV units had spray force ranges • Based on new test data, DOE foods, and product class 3 provides between 4.1 and 4.8 ozf, and the other updated the approach to define baseline distinct utility for cleaning baked-on cluster was between 5.5 and 7.7 ozf. levels for product class 1 and product foods and preserving shower-type units, Therefore, DOE established the class 2 to be the higher flow rate of which prevent splash-back. threshold between the two classes at 5.0 either (1) the tested least-efficient unit For each of the product classes, DOE ozf. This spray force threshold is determined the spray force ranges based or (2) the theoretical least-efficient unit corroborated by T&S Brass’s comment to at the intersection of the flow rate-spray on the CPSV flow rate-spray force linear the Framework document suggesting a relationship. DOE’s product class 1 force linear relationship and the spray flow rate cut-off of 0.80 gpm between force bounds. In product class 1, DOE includes units less than or equal to 5 the ‘‘ultra-low-flow’’ and ‘‘low-flow’’ ounce-force (ozf), product class 2 revised the baseline to 1.00 gpm, which commercial prerinse spray valves, is a tested unit with a flow rate of 0.97 includes units greater than 5 ozf but less which equates to 5.3 ozf using the flow than or equal to 8 ozf, and product class gpm, rounded-up to a whole number. rate-spray force linear relationship. This This is greater than the theoretical flow 3 includes units greater than 8 ozf. DOE spray force can be conservatively selected 8.0 ozf as the spray force cut- rate at the intersection of the flow rate- rounded to 5.0 ozf. spray force linear relationship and the off between product class 2 and product While DOE acknowledges the spray force bound of 5.0 ozf, which is class 3 based on test results of comments from interested parties 0.75 gpm. In product class 2, DOE commercial prerinse spray valves with regarding DOE’s CPSV product class revised the baseline level to 1.20 gpm, shower-type spray shapes. DOE testing structure, DOE maintains that all which is the intersection of the flow showed that the upper range of the available data and information from rate-spray force linear relationship and market, in terms of flow rate, manufacturers suggests that: (1) Flow the 8.0 ozf spray force bound. The predominantly includes shower-type rate and spray force are strongly baseline for product class 3 is the units. DOE found that the lowest tested correlated, and (2) CPSV units with spray force of any shower-type unit was current DOE standard of 1.6 gpm. different flow rates or spray forces are • 8.1 ozf. Therefore, to maintain the available in the market, and provide Based on new test data, DOE consumer utility provided by shower- distinct consumer utility in the different revised the max-tech levels from 0.65, type units, DOE selected 8.0 ozf to applications those units are designed to 0.97, and 1.24 gpm to 0.62, 0.73, and differentiate product class 3 units from serve. Therefore, in this NODA, DOE 1.13 gpm for product class 1, product other commercial prerinse spray valves has maintained the product class class 2 and product class 3, respectively. available on the market. Additionally, structure presented in the NOPR, with • Based on the updates to the this spray force threshold is three product classes differentiated by baseline and max-tech levels, DOE corroborated by T&S Brass’s comments spray force. updated the EL 1 and EL 2 flow rates in to the Framework document suggesting product class 1 and product class 2 to three product classes. T&S Brass 1. Summary of Engineering Updates for reflect a 15 percent and 25 percent suggested a flow rate cut-off of 1.28 gpm the NODA improvement, respectively, over the between the ‘‘low-flow’’ and ‘‘standard’’ In addition to the product class baseline efficiency. Table III.1 through commercial prerinse spray valves. (T&S structure, DOE received comment on, Table III.3 provide the updated Brass, No. 12 at p. 3) Converting this and updated a number of other efficiency levels for all product classes.

TABLE III.1—EFFICIENCY LEVELS FOR CPSV PRODUCT CLASS 1 [Spray force ≤ 5 ozf]

Flow rate Efficiency level Description (gpm)

Level 0 ...... Baseline ...... 1.00 Level 1 ...... 15% improvement over baseline ...... 0.85 Level 2 ...... 25% improvement over baseline ...... 0.75 Level 3 ...... Maximum available (‘‘max tech’’) ...... 0.62

TABLE III.2—EFFICIENCY LEVELS FOR CPSV PRODUCT CLASS 2 [5 ozf < Spray force ≤ 8 ozf]

Flow rate Efficiency level Description (gpm)

Level 0 ...... Baseline ...... 1.20 Level 1 ...... 15% improvement over baseline ...... 1.02

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TABLE III.2—EFFICIENCY LEVELS FOR CPSV PRODUCT CLASS 2—Continued [5 ozf < Spray force ≤ 8 ozf]

Flow rate Efficiency level Description (gpm)

Level 2 ...... 25% improvement over baseline ...... 0.90 Level 3 ...... Maximum available (‘‘max tech’’) ...... 0.73

TABLE III.3—EFFICIENCY LEVELS FOR CPSV PRODUCT CLASS 3 [Spray force > 8 ozf]

Flow rate Efficiency level Description (gpm)

Level 0 ...... Baseline ...... 1.60 Level 1 ...... 10% improvement over baseline ...... 1.44 Level 2 ...... WaterSense Level; 20% improvement over baseline ...... 1.28 Level 3 ...... Maximum available (max-tech) ...... 1.13

B. Life-Cycle Cost and Payback Period analysis that calculated energy and discussed in the CPSV NOPR) as a result Analysis water use of commercial prerinse spray of a standard at those TSLs. That is, The life-cycle cost (LCC) and payback valves at each efficiency level within DOE selected flow rates that would period (PBP) analysis determines the each product class identified in the allow consumers to maintain provided economic impact of potential standards engineering analysis. DOE determined utility without purchasing units from a on individual consumers. The LCC is the range of annual energy consumption different product class. the total cost of purchasing, installing and annual water consumption using the flow rate of each EL within each and operating a commercial prerinse TABLE III.4—EFFICIENCY LEVELS BY product class from the engineering spray valve over the course of its PRODUCT CLASS AND TSL analysis, the average annual operating lifetime. The LCC analysis compares the time, and the energy required to heat a LCC of a commercial prerinse spray TSL Product Product Product gallon of water used at the commercial class 1 class 2 class 3 valve designed to meet possible energy prerinse spray valve. Recognizing that conservation standards with the LCC of several inputs to the determination of A ...... 0 0 1 a commercial prerinse spray valve likely B ...... 0 0 2 consumer LCC and PBP are either to be installed in the absence of C ...... 0 0 3 variable or uncertain (e.g., annual standards. DOE determines LCCs by energy consumption, product lifetime, DOE calculated NES, NWS, and NPV considering (1) total installed cost to the electricity price, discount rate), DOE for each TSL as the difference between consumer (which consists of conducts the LCC and PBP analysis by a no-new-standards case scenario manufacturer selling price, distribution modeling both the uncertainty and (without new standards) and the chain markups, and sales taxes), (2) the variability in the inputs using a Monte standards-case scenario (with range of annual energy consumption of Carlo simulation and probability standards). Cumulative energy savings commercial prerinse spray valves that distributions. meet each of the efficiency levels The primary outputs of the LCC and are the sum of the annual NES considered as they are used in the field, PBP analysis are (1) average LCCs, (2) determined over the lifetime of (3) the operating cost of commercial median PBPs, and (3) the percentage of commercial prerinse spray valves prerinse spray valves (e.g., energy cost), consumers that experience a net cost for shipped during the analysis period. (4) CPSV lifetime, and (5) a discount each product class and efficiency level. Energy savings reported include the rate that reflects the real consumer cost The average annual energy consumption full-fuel cycle energy savings (i.e., of capital and puts the LCC in present- derived in the LCC analysis is used as inclusive of the energy needed to value terms. The PBP represents the an input to the National Impact extract, process, and deliver primary number of years needed to recover the Analysis (NIA). fuel sources such as coal and natural typically increased purchase price of gas, and the conversion and distribution higher-efficiency commercial prerinse C. National Impact Analysis losses of generating electricity from spray valves through savings in The NIA estimates the national energy those fuel sources). Similarly, operating costs. PBP is calculated by savings (NES), national water savings cumulative water savings are the sum of dividing the incremental increase in (NWS), and the net present value (NPV) the annual NWS determined over the installed cost of the higher efficiency of total consumer costs and savings lifetime of commercial prerinse spray product, compared to the baseline expected to result from potential new valves shipped during the analysis product, by the annual savings in standards at each trial standard level period. The NPV is the sum over time operating costs. In this analysis, because (TSL). DOE defined four TSLs in the of the discounted net savings each year, more efficient products do not cost more CPSV NOPR, and in this NODA which consists of the difference than baseline efficiency products, the provides three additional TSLs. The between total operating cost savings and PBP is zero, meaning that consumers do new TSLs analyzed in this NODA are any changes in total installed costs. NPV not have any incremental product costs shown in Table III.4. DOE defined these results are reported for discount rates of to recover via lower operating costs. three TSLs based on flow rates for each 3 percent and 7 percent. For commercial prerinse spray valves, product class that would not induce To calculate the NES, NWS, and NPV, DOE performed an energy and water use consumers to switch product classes (as DOE projected future shipments and

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efficiency distributions (for each TSL) information pertaining to the analyses analysis period. The primary for each CPSV product class. After performed for this NODA. quantitative output of this model is the industry net present value (INPV), further research and consideration of D. Manufacturer Impact Analysis public comments regarding product which DOE calculates as the sum of shipments (T&S, Public Meeting For the manufacturer impact analysis industry cash flows discounted to the Transcript, No. 23 at pp. 81), DOE (MIA), DOE used the Government present day using industry specific updated its shipments projections from Regulatory Impact Model (GRIM) to weighted average costs of capital. the NOPR to more accurately assess the economic impact of potential Standards affect INPV by requiring characterize the CPSV market. The most standards on CPSV manufacturers. DOE manufacturers to make investments in significant update was allocating more developed key industry average manufacturing capital and product of the overall market share to product financial parameters for the GRIM using development. Under potential class 3 products relative to product publicly available data from corporate standards, DOE expects that classes 1 and 2. Other inputs to the NIA annual reports. Additionally, DOE used manufacturers may lose a portion of include the estimated CPSV lifetime, this and other publicly available their INPV, which is calculated as the information to estimate and account for final installed costs, and average annual difference between INPV in the no-new- the aggregate industry investment in energy and water consumption per unit standards case (absent new energy capital expenditures and research and from the LCC. For detailed NIA results conservation standards) and in the development required to produce for the newly-added TSLs, see Table standards case (with new energy compliant products at each efficiency IV.4 and Table IV.5. conservation standards in effect). DOE level. examines a range of possible impacts on The purpose of this NODA is to notify The GRIM uses this information in industry by modeling scenarios with industry, manufacturers, consumer conjunction with inputs from other various levels of investment. groups, efficiency advocates, analyses including manufacturer government agencies, and other production costs from the engineering IV. Results of the Economic Analyses stakeholders on issues related to the analysis; shipments from the shipments A. Economic Impacts on Consumers provisional analysis of potential energy analysis; and price trends from the conservation standards for commercial national impact analysis (NIA) to model Table IV.1 through Table IV.3 provide prerinse spray valves. Stakeholders industry annual cash flows from the LCC and PBP results for the newly should contact DOE for any additional base year through the end of the added TSLs discussed in section III.C.

TABLE IV.1—PRODUCT CLASS 1 LCC AND PBP RESULTS

Product Class 1 (spray force ≤ 5 ozf) Average costs (2014$) Simple TSL Efficiency level payback First year’s Lifetime period Installed cost operating cost operating cost LCC * (years)

A,B,C ...... 0 76 487 2,229 2,305 0.0 1 76 414 1,895 1,971 0.0 2 76 366 1,672 1,748 0.0 3 76 302 1,382 1,458 0.0

Product Class 1 (spray force ≤ 5 ozf) Life-cycle cost savings ** TSL Efficiency level % of customers Average that experience savings net cost (2014$)

A,B,C ...... 0 0 0 1 0 334 2 0 557 3 0 352

TABLE IV.2—PRODUCT CLASS 2 LCC AND PBP RESULTS

Product Class 2 (spray force > 5 ozf and ≤ 8 ozf) Average costs (2014$) Simple TSL Efficiency level payback First year’s Lifetime period Installed cost operating cost operating cost LCC * (years)

A,B,C ...... 0 76 585 2,675 2,751 0.0 1 76 497 2,274 2,350 0.0 2 76 439 2,006 2,082 0.0

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TABLE IV.2—PRODUCT CLASS 2 LCC AND PBP RESULTS—Continued

Product Class 2 (spray force > 5 ozf and ≤ 8 ozf) Average costs (2014$) Simple TSL Efficiency level payback First year’s Lifetime period Installed cost operating cost operating cost LCC * (years)

3 76 356 1,627 1,704 0.0 Product Class 2 (spray force > 5 ozf and ≤ 8 ozf) Life-cycle cost savings ** TSL Efficiency level % of customers Average that experience savings net cost (2014$)

A,B,C ...... 0 0 0 1 0 401 2 0 446 3 0 825

TABLE IV.3—PRODUCT CLASS 3 LCC AND PBP RESULTS

Product Class 3 (spray force > 8 ozf) Average costs (2014$) Simple TSL Efficiency level payback First year’s Lifetime period Installed cost operating cost operating cost LCC * (years)

0 76 780 3,566 3,643 0.0 A ...... 1 76 702 3,210 3,286 0.0 B ...... 2 76 624 2,853 2,929 0.0 C ...... 3 76 551 2,519 2,595 0.0 Product Class 3 (spray force > 8 ozf) Life-cycle cost savings ** TSL Efficiency level % of customers Average that experience savings net cost (2014$)

0 0 0 A ...... 1 0 357 B ...... 2 0 547 C ...... 3 0 766

B. Economic Impacts on the Nation added TSLs. Table IV.5, also for these Table IV.4 provides energy and water selected TSLs, provides NPV results. impacts associated with the newly-

TABLE IV.4—COMMERCIAL PRERINSE SPRAY VALVES: CUMULATIVE NATIONAL ENERGY AND WATER SAVINGS FOR PRODUCTS SHIPPED IN 2019–2048

National energy savings National water TSL Product class (quads) * savings Primary Full-fuel cycle (billion gallons)

A ...... 1 (≤5 ozf) ...... 0.000 0.000 0.000 2 (>5 ozf and ≤8 ozf) ...... 0.000 0.000 0.000 3 (>8 ozf) ...... 0.032 0.035 41.590

Total TSL 1 ...... 0.032 0.035 41.590

B ...... 1 (≤5 ozf) ...... 0.000 0.000 0.000

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TABLE IV.4—COMMERCIAL PRERINSE SPRAY VALVES: CUMULATIVE NATIONAL ENERGY AND WATER SAVINGS FOR PRODUCTS SHIPPED IN 2019–2048—Continued

National energy savings National water TSL Product class (quads) * savings Primary Full-fuel cycle (billion gallons)

2 (>5 ozf and ≤8 ozf) ...... 0.000 0.000 0.000 3 (>8 ozf) ...... 0.093 0.101 119.572

Total TSL 4 ...... 0.093 0.101 119.572

C ...... 1 (≤5 ozf) ...... 0.000 0.000 0.000 2 (>5 ozf and ≤8 ozf) ...... 0.000 0.000 0.000 3 (>8 ozf) ...... 0.166 0.180 212.175

Total TSL 5 ...... 0.166 0.180 212.175 * ‘‘quad’’ = one quadrillion British thermal units.

TABLE IV.5—COMMERCIAL PRERINSE SPRAY VALVES: CUMULATIVE NET PRESENT VALUE OF CONSUMER BENEFITS FOR PRODUCTS SHIPPED IN 2019–2048

Net present value (billion $2014) TSL Product class 7-Percent 3-Percent discount rate discount rate

A ...... 1 (≤5 ozf) ...... 0.000 0.000 2 (>5 ozf and ≤8 ozf) ...... 0.000 0.000 3 (>8 ozf) ...... 0.250 0.513

Total TSL 1 ...... 0.250 0.513

B ...... 1 (≤5 ozf) ...... 0.000 0.000 2 (>5 ozf and ≤8 ozf) ...... 0.000 0.000 3 (>8 ozf) ...... 0.718 1.476

Total TSL 4 ...... 0.718 1.476

C ...... 1 (≤5 ozf) ...... 0.000 0.000 2 (>5 ozf and ≤8 ozf) ...... 0.000 0.000 3 (>8 ozf) ...... 1.274 2.619

Total TSL 4 ...... 1.274 2.619

C. Economic Impacts on Manufacturers added TSLs under the sourced materials manufacturer impacts under the Table IV.6 provides manufacturer conversion cost scenario. Table IV.7, fabricated materials conversion cost impacts associated with the newly also for these selected TSLs, provides scenario.

TABLE IV.6—MANUFACTURER IMPACT ANALYSIS FOR COMMERCIAL PRERINSE SPRAY VALVES UNDER THE SOURCED MATERIALS CONVERSION COST SCENARIO

Trial standard level Units No-standards case A B C

INPV ...... 2014$ MM ...... 8.6 8.4 8.1 8.1 Change in INPV $ ...... 2014$ MM ...... (0.2) (0.5) (0.5) Change in INPV % ...... % ...... (2.5) (5.5) (6.0) Product Conversion Costs ...... 2014$ MM ...... 0.4 0.8 0.8 Capital Conversion Costs ...... 2014$ MM ...... 0.1 0.1 Total Investment Required ...... 2014$ MM ...... 0.4 0.9 0.9

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TABLE IV.7—MANUFACTURER IMPACT ANALYSIS FOR COMMERCIAL PRERINSE SPRAY VALVES UNDER THE FABRICATED MATERIALS CONVERSION COST SCENARIO

Trial standard level Units No-standards case A B C

INPV ...... 2014$ MM ...... 8.6 8.0 7.6 7.5 Change in INPV $ ...... 2014$ MM ...... (0.6) (0.9) (1.1) Change in INPV % ...... % ...... (6.5) (11.1) (12.6) Product Conversion Costs ...... 2014$ MM ...... 0.4 0.8 0.8 Capital Conversion Costs ...... 2014$ MM ...... 0.4 0.6 0.8 Total Investment Required ...... 2014$ MM ...... 0.8 1.4 1.6

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Submission of Comments information on submitting CBI, see the organization in batches of between 50 DOE will accept comments, data, and Confidential Business Information and 500 form letters per PDF or as one information regarding this notice no section below. form letter with a list of supporters’ later than the date provided in the DATES DOE processes submissions made names compiled into one or more PDFs. section at the beginning of this notice. through www.regulations.gov before This reduces comment processing and Interested parties may submit posting. Normally, comments will be posting time. comments, data, and other information posted within a few days of being Confidential Business Information. using any of the methods described in submitted. However, if large volumes of Pursuant to 10 CFR 1004.11, any person the ADDRESSES section at the beginning comments are being processed submitting information that he or she of this notice. simultaneously, your comment may not believes to be confidential and exempt Submitting comments via be viewable for up to several weeks. by law from public disclosure should www.regulations.gov. The Please keep the comment tracking submit two well-marked copies: One www.regulations.gov Web page will number that www.regulations.gov copy of the document marked require you to provide your name and provides after you have successfully ‘‘confidential’’ including all the contact information. Your contact uploaded your comment. information believed to be confidential, information will only be viewable to Submitting comments via email, hand and one copy of the document marked DOE Building Technologies staff. Your delivery/courier, or mail. Comments and ‘‘non-confidential’’ with the information contact information will not be publicly documents submitted via email, hand believed to be confidential deleted. DOE viewable except for your first and last delivery, or mail will also be posted to will make its own determination about names, organization name (if any), and www.regulations.gov. If you do not want the confidential status of the submitter representative name (if any). your personal contact information to be information and treat it according to its If your comment is not processed publicly viewable, do not include it in determination. properly because of technical your comment or any accompanying Factors of interest to DOE when difficulties, DOE will use this documents. Instead, provide your evaluating requests to treat submitted information to contact you. If DOE contact information in a cover letter. information as confidential include (1) a cannot read your comment due to Include your first and last names, email description of the items, (2) whether technical difficulties and cannot contact address, telephone number, and and why such items are customarily you for clarification, DOE may not be optional mailing address. The cover treated as confidential within the able to consider your comment. letter will not be publicly viewable as industry, (3) whether the information is However, your contact information long as it does not include any generally known by or available from will be publicly viewable if you include comments. other sources, (4) whether the it in the comment itself or in any Include contact information each time information has previously been made documents attached to your comment. you submit comments, data, documents, available to others without obligation Any information that you do not want and other information to DOE. If you concerning its confidentiality, (5) an to be publicly viewable should not be submit via mail or hand delivery/ explanation of the competitive injury to included in your comment, nor in any courier, please provide all items on a the submitting person which would document attached to your comment. CD, if feasible, in which case it is not result from public disclosure, (6) when Otherwise, persons viewing comments necessary to submit printed copies. No such information might lose its will see only first and last names, facsimiles (faxes) will be accepted. confidential character due to the organization names, correspondence Comments, data, and other passage of time, and (7) why disclosure containing comments, and any information submitted to DOE of the information would be contrary to documents submitted with the electronically should be provided in the public interest. comments. portable document format (PDF) It is DOE’s policy that all comments Do not submit to www.regulations.gov (preferred), Microsoft Word or Excel, may be included in the public docket, information for which disclosure is WordPerfect, or text (ASCII) file format. without change and as received,

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including any personal information • Hand Delivery: U.S. Department of substantive verbal contact we receive provided in the comments (except Transportation, Docket Operations, M– about this proposed AD. information deemed to be exempt from 30, West Building Ground Floor, Room Discussion public disclosure). W12–140, 1200 New Jersey Avenue SE., Issued in Washington, DC, on November 5, Washington, DC, between 9 a.m. and 5 Transport Canada Civil Aviation 2015. p.m., Monday through Friday, except (TCCA), which is the aviation authority Kathleen B. Hogan, Federal holidays. for Canada, has issued Canadian Deputy Assistant Secretary for Energy For service information identified in Airworthiness Directive CF–2015–18, Efficiency, Energy Efficiency and Renewable this proposed AD, contact Bombardier, effective July 16, 2015 (referred to after Energy. Inc., 400 Coˆte-Vertu Road West, Dorval, this as the Mandatory Continuing [FR Doc. 2015–28675 Filed 11–10–15; 8:45 am] Que´bec H4S 1Y9, Canada; telephone Airworthiness Information, or ‘‘the BILLING CODE 6450–01–P 514–855–5000; fax 514–855–7401; email MCAI’’), to correct an unsafe condition [email protected]; Internet for certain Bombardier, Inc. Model CL– http://www.bombardier.com. You may 600–2C10 (Regional Jet Series 700, 701, DEPARTMENT OF TRANSPORTATION view this referenced service information & 702) airplanes, Model CL–600–2D15 at the FAA, Transport Airplane (Regional Jet Series 705) airplanes, Federal Aviation Administration Directorate, 1601 Lind Avenue SW., Model CL–600–2D24 (Regional Jet Renton, WA. For information on the Series 900) airplanes, and Model CL– 14 CFR Part 39 availability of this material at the FAA, 600–2E25 (Regional Jet Series 1000) call 425–227–1221. airplanes. The MCAI states: [Docket No. FAA–2015–4811; Directorate Identifier 2015–NM–104–AD] Examining the AD Docket It was discovered that a number of [angle of attack] AOA transducers installed on RIN 2120–AA64 You may examine the AD docket on Bombardier CL–600–2C10, CL–600–2D15, the Internet at http:// CL–600–2D24, and CL–600–2E25 aeroplanes Airworthiness Directives; Bombardier, www.regulations.gov by searching for were incorrectly calibrated due to a quality Inc. Airplanes and locating Docket No. FAA–2015– control problem at both the production and repair facilities. Incorrect calibration of the AGENCY: Federal Aviation 4811; or in person at the Docket Management Facility between 9 a.m. AOA transducer could result in a late Administration (FAA), DOT. activation of the stick pusher. ACTION: Notice of proposed rulemaking and 5 p.m., Monday through Friday, This [Canadian] AD mandates the (NPRM). except Federal holidays. The AD docket replacement of the incorrectly calibrated contains this proposed AD, the AOA transducer. SUMMARY: We propose to adopt a new regulatory evaluation, any comments You may examine the MCAI in the airworthiness directive (AD) for certain received, and other information. The AD docket on the Internet at http:// Bombardier, Inc. Model CL–600–2C10 street address for the Docket Operations www.regulations.gov by searching for (Regional Jet Series 700, 701, & 702) office (telephone 800–647–5527) is in and locating Docket No. FAA–2015– airplanes, Model CL–600–2D15 the ADDRESSES section. Comments will 4811. (Regional Jet Series 705) airplanes, be available in the AD docket shortly Model CL–600–2D24 (Regional Jet after receipt. Related Service Information Under 1 Series 900) airplanes, and Model CL– FOR FURTHER INFORMATION CONTACT: CFR Part 51 600–2E25 (Regional Jet Series 1000) Cesar Gomez, Aerospace Engineer, Bombardier, Inc. has issued airplanes. This proposed AD was Airframe and Mechanical Systems Bombardier Service Bulletin 670BA–27– prompted by the discovery of a number Branch, ANE–171, FAA, New York 069, dated March 30, 2015. The service of incorrectly calibrated angle of attack Aircraft Certification Office (ACO), 1600 information describes procedures for (AOA) transducers installed in the stall Stewart Avenue, Suite 410, Westbury, replacement of the transducers with protection system. This proposed AD NY 11590; telephone 516–228–7318; fax correctly calibrated AOA transducers. would require replacement of affected 516–794–5531. This service information is reasonably AOA transducers. We are proposing this SUPPLEMENTARY INFORMATION: available because the interested parties AD to detect and replace incorrectly have access to it through their normal calibrated AOA transducers; incorrect Comments Invited course of business or by the means calibration of the transducers could We invite you to send any written identified in the ADDRESSES section of result in late activation of the stick relevant data, views, or arguments about this NPRM. pusher. this proposed AD. Send your comments DATES: We must receive comments on to an address listed under the FAA’s Determination and Requirements this proposed AD by December 28, ADDRESSES section. Include ‘‘Docket No. of This Proposed AD 2015. FAA–2015–4811; Directorate Identifier This product has been approved by ADDRESSES: You may send comments, 2015–NM–104–AD’’ at the beginning of the aviation authority of another using the procedures found in 14 CFR your comments. We specifically invite country, and is approved for operation 11.43 and 11.45, by any of the following comments on the overall regulatory, in the United States. Pursuant to our methods: economic, environmental, and energy bilateral agreement with the State of • Federal eRulemaking Portal: Go to aspects of this proposed AD. We will Design Authority, we have been notified http://www.regulations.gov. Follow the consider all comments received by the of the unsafe condition described in the instructions for submitting comments. closing date and may amend this MCAI and service information • Fax: 202–493–2251. proposed AD based on those comments. referenced above. We are proposing this • Mail: U.S. Department of We will post all comments we AD because we evaluated all pertinent Transportation, Docket Operations, M– receive, without change, to http:// information and determined an unsafe 30, West Building Ground Floor, Room www.regulations.gov, including any condition exists and is likely to exist or W12–140, 1200 New Jersey Avenue SE., personal information you provide. We develop on other products of these same Washington, DC 20590. will also post a report summarizing each type designs.

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Costs of Compliance The Proposed Amendment (h) Parts Installation Prohibition We estimate that this proposed AD Accordingly, under the authority As of the effective date of this AD, no affects 400 airplanes of U.S. registry. delegated to me by the Administrator, person may install, on any airplane, an AOA We also estimate that it would take the FAA proposes to amend 14 CFR part transducer having a part number or serial about 4 work-hours per product to 39 as follows: number identified in paragraph 1.A., comply with the basic requirements of ‘‘Effectivity,’’ of Bombardier Service Bulletin this proposed AD. The average labor PART 39—AIRWORTHINESS 670BA–27–069, dated March 30, 2015. rate is $85 per work-hour. Required DIRECTIVES (i) Other FAA AD Provisions parts would cost about $10,000 per ■ The following provisions also apply to this product. Based on these figures, we 1. The authority citation for part 39 AD: estimate the cost of this proposed AD on continues to read as follows: (1) Alternative Methods of Compliance U.S. operators to be $4,136,000, or Authority: 49 U.S.C. 106(g), 40113, 44701. (AMOCs): The Manager, New York Aircraft $10,340 per product. Certification Office (ACO), ANE–170, FAA, § 39.13 [Amended] has the authority to approve AMOCs for this Authority for This Rulemaking ■ 2. The FAA amends § 39.13 by adding AD, if requested using the procedures found Title 49 of the United States Code the following new airworthiness in 14 CFR 39.19. In accordance with 14 CFR specifies the FAA’s authority to issue directive (AD): 39.19, send your request to your principal rules on aviation safety. Subtitle I, inspector or local Flight Standards District Bombardier, Inc.: Docket No. FAA–2015– section 106, describes the authority of Office, as appropriate. If sending information 4811; Directorate Identifier 2015–NM– directly to the ACO, send it to ATTN: the FAA Administrator. ‘‘Subtitle VII: 104–AD. Aviation Programs,’’ describes in more Program Manager, Continuing Operational detail the scope of the Agency’s (a) Comments Due Date Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; authority. We must receive comments by December telephone 516–228–7300; fax 516–794–5531. We are issuing this rulemaking under 28, 2015. Before using any approved AMOC, notify the authority described in ‘‘Subtitle VII, (b) Affected ADs your appropriate principal inspector, or Part A, Subpart III, Section 44701: None. lacking a principal inspector, the manager of General requirements.’’ Under that the local flight standards district office/ section, Congress charges the FAA with (c) Applicability certificate holding district office. The AMOC promoting safe flight of civil aircraft in This AD applies to the following approval letter must specifically reference air commerce by prescribing regulations Bombardier, Inc. airplanes, certificated in this AD. for practices, methods, and procedures any category. (2) Contacting the Manufacturer: For any the Administrator finds necessary for (1) Model CL–600–2C10 (Regional Jet requirement in this AD to obtain corrective safety in air commerce. This regulation Series 700, 701, & 702) airplanes, serial actions from a manufacturer, the action must is within the scope of that authority numbers 10002 through 10999 inclusive. be accomplished using a method approved (2) Model CL–600–2D15 (Regional Jet because it addresses an unsafe condition by the Manager, New York ACO, ANE–170, Series 705) airplanes and Model CL–600– Engine and Propeller Directorate, FAA; or that is likely to exist or develop on 2D24 (Regional Jet Series 900) airplanes, products identified in this rulemaking Transport Canada Civil Aviation (TCCA); or serial numbers 15001 through 15990 Bombardier, Inc.’s TCCA Design Approval action. inclusive. Organization (DAO). If approved by the DAO, (3) Model CL–600–2E25 (Regional Jet the approval must include the DAO- Regulatory Findings Series 1000) airplanes, serial numbers 19001 authorized signature. We determined that this proposed AD through 19990 inclusive. (j) Related Information would not have federalism implications (d) Subject under Executive Order 13132. This (1) Refer to Mandatory Continuing Air Transport Association (ATA) of proposed AD would not have a America Code 27, Flight Controls. Airworthiness Information (MCAI) Canadian substantial direct effect on the States, on Airworthiness Directive CF–2015–18, dated the relationship between the national (e) Reason July 16, 2015, for related information. This Government and the States, or on the This AD was prompted by the discovery of MCAI may be found in the AD docket on the distribution of power and a number of incorrectly calibrated angle of Internet at http://www.regulations.gov by responsibilities among the various attack (AOA) transducers installed in the searching for and locating Docket No. FAA– levels of government. stall protection system. We are issuing this 2015–4811. For the reasons discussed above, I AD to detect and replace incorrectly (2) For service information identified in ˆ certify this proposed regulation: calibrated AOA transducers; incorrect this AD, contact Bombardier, Inc., 400 Cote- ´ 1. Is not a ‘‘significant regulatory calibration of the transducers could result in Vertu Road West, Dorval, Quebec H4S 1Y9, late activation of the stick pusher. Canada; telephone 514–855–5000; fax 514– action’’ under Executive Order 12866; 855–7401; email thd.crj@ 2. Is not a ‘‘significant rule’’ under the (f) Compliance aero.bombardier.com; Internet http:// DOT Regulatory Policies and Procedures Comply with this AD within the www.bombardier.com. You may view this (44 FR 11034, February 26, 1979); compliance times specified, unless already service information at the FAA, Transport 3. Will not affect intrastate aviation in done. Airplane Directorate, 1601 Lind Avenue SW., Alaska; and (g) Replacement Renton, WA. For information on the 4. Will not have a significant availability of this material at the FAA, call Within 2,500 flight hours or 12 months, economic impact, positive or negative, 425–227–1221. on a substantial number of small entities whichever occurs first after the effective date under the criteria of the Regulatory of this AD, replace the AOA transducers Issued in Renton, Washington, on October identified in paragraph 1.A., ‘‘Effectivity,’’ of 30, 2015. Flexibility Act. Bombardier Service Bulletin 670BA–27–069, Michael Kaszycki, dated March 30, 2015, with correctly List of Subjects in 14 CFR Part 39 Acting Manager, Transport Airplane calibrated AOA transducers, in accordance Directorate, Aircraft Certification Service. Air transportation, Aircraft, Aviation with the Accomplishment Instructions of safety, Incorporation by reference, Bombardier Service Bulletin 670BA–27–069, [FR Doc. 2015–28562 Filed 11–10–15; 8:45 am] Safety. dated March 30, 2015. BILLING CODE 4910–13–P

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DEPARTMENT OF TRANSPORTATION view this referenced service information Model CN–235–200 and CN–235–300 at the FAA, Transport Airplane airplanes. The MCAI states: Federal Aviation Administration Directorate, 1601 Lind Avenue SW., Several cases of false engine fire warning Renton, WA. For information on the events were reported, which consequently 14 CFR Part 39 availability of this material at the FAA, led to engine in-flight shut down (IFSD) [Docket No. FAA–2015–4809; Directorate call 425–227–1221. executed by the flightcrew using the appropriate emergency procedures. Identifier 2015–NM–012–AD] Examining the AD Docket Subsequent investigation determined that RIN 2120–AA64 You may examine the AD docket on these false engine fire warnings were the result of insufficient insulation capability of the Internet at http:// Airworthiness Directives; Airbus the engine fire detection system. This www.regulations.gov by searching for Defense and Space S.A. (Formerly allowed penetration of moisture into the fire and locating Docket No. FAA–2015– Known as Construcciones detector connectors, reducing the insulation 4809; or in person at the Docket resistance between the inner electrode and Aeronauticas, S.A.) Airplanes Management Facility between 9 a.m. connector housing below the required values. AGENCY: Federal Aviation and 5 p.m., Monday through Friday, This condition, if not corrected, could lead Administration (FAA), DOT. except Federal holidays. The AD docket to further cases of unnecessary engine IFSD, contains this proposed AD, the possibly resulting in reduced control of the ACTION: Notice of proposed rulemaking aeroplane. (NPRM). regulatory evaluation, any comments To address this potential unsafe condition, received, and other information. The EADS–CASA issued Service Bulletin (SB) SUMMARY: We propose to adopt a new street address for the Docket Operations SB235–26–0006 providing modification airworthiness directive (AD) for certain office (telephone 800–647–5527) is in instructions. Airbus Defense and Space S.A. the ADDRESSES section. Comments will For the reasons described above, this (formerly known as Construcciones be available in the AD docket shortly [EASA] AD requires modification of the Aeronauticas, S.A.) Model CN–235–200 after receipt. location and routing of the engine fire detection system. and CN–235–300 airplanes. This FOR FURTHER INFORMATION CONTACT: proposed AD was prompted by reports Shahram Daneshmandi, Aerospace You may examine the MCAI in the of false engine fire warning events, Engineer, International Branch, ANM– AD docket on the Internet at http:// which consequently led to engine in- 116, Transport Airplane Directorate, www.regulations.gov by searching for flight shut down. This proposed AD FAA, 1601 Lind Avenue SW., Renton, and locating Docket No. FAA–2015– would require modification of the WA 98057–3356; telephone 425–227– 4809. location and routing of the engine fire 1112; fax 425–227–1149. Related Service Information Under 1 detection system. We are proposing this SUPPLEMENTARY INFORMATION: CFR Part 51 AD to prevent unnecessary engine in- flight shut down, which could result in Comments Invited EADS CASA has issued Service Bulletin SB–235–26–0006, dated July 8, reduced controllability of the airplane. We invite you to send any written DATES: We must receive comments on 2014. The service information describes relevant data, views, or arguments about procedures for modifying the engine fire this proposed AD by December 28, this proposed AD. Send your comments 2015. detection system. This service to an address listed under the information is reasonably available ADDRESSES: You may send comments, ADDRESSES section. Include ‘‘Docket No. because the interested parties have using the procedures found in 14 CFR FAA–2015–4809; Directorate Identifier access to it through their normal course 11.43 and 11.45, by any of the following 2015–NM–012–AD’’ at the beginning of of business or by the means identified methods: your comments. We specifically invite in the ADDRESSES section of this NPRM. • Federal eRulemaking Portal: Go to comments on the overall regulatory, http://www.regulations.gov. Follow the economic, environmental, and energy FAA’s Determination and Requirements instructions for submitting comments. aspects of this proposed AD. We will of This Proposed AD • Fax: 202–493–2251. consider all comments received by the This product has been approved by • Mail: U.S. Department of closing date and may amend this the aviation authority of another Transportation, Docket Operations, M– proposed AD based on those comments. country, and is approved for operation 30, West Building Ground Floor, Room We will post all comments we in the United States. Pursuant to our W12–140, 1200 New Jersey Avenue SE., receive, without change, to http:// bilateral agreement with the State of Washington, DC 20590. www.regulations.gov, including any Design Authority, we have been notified • Hand Delivery: U.S. Department of personal information you provide. We of the unsafe condition described in the Transportation, Docket Operations, M– will also post a report summarizing each MCAI and service information 30, West Building Ground Floor, Room substantive verbal contact we receive referenced above. We are proposing this W12–140, 1200 New Jersey Avenue SE., about this proposed AD. AD because we evaluated all pertinent Washington, DC, between 9 a.m. and 5 Discussion information and determined an unsafe p.m., Monday through Friday, except condition exists and is likely to exist or Federal holidays. The European Aviation Safety Agency develop on other products of these same For service information identified in (EASA), which is the Technical Agent type designs. this proposed AD, contact EADS–CASA, for the Member States of the European Military Transport Aircraft Division Union, has issued EASA Airworthiness Costs of Compliance (MTAD), Integrated Customer Services Directive 2015–0011, dated January 20, We estimate that this proposed AD (ICS), Technical Services, Avenida de 2015 (referred to after this as the affects 24 airplanes of U.S. registry. Arago´n 404, 28022 Madrid, Spain; Mandatory Continuing Airworthiness We also estimate that it would take telephone +34 91 585 55 84; fax +34 91 Information, or ‘‘the MCAI’’), to correct about 75 work-hours per product to 585 55 05; email an unsafe condition for certain Defense comply with the basic requirements of [email protected]; and Space S.A. (formerly known as this proposed AD. The average labor Internet http://www.eads.net. You may Construcciones Aeronauticas, S.A.) rate is $85 per work-hour. Required

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parts would cost about $1,577 per PART 39—AIRWORTHINESS Airplane Directorate, FAA, 1601 Lind product. Based on these figures, we DIRECTIVES Avenue SW., Renton, WA 98057–3356; estimate the cost of this proposed AD on telephone 425–227–1112; fax 425–227–1149. ■ 1. The authority citation for part 39 Information may be emailed to: 9-ANM-116- U.S. operators to be $190,848, or $7,952 [email protected]. Before using per product. continues to read as follows: any approved AMOC, notify your appropriate Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. principal inspector, or lacking a principal inspector, the manager of the local flight Title 49 of the United States Code § 39.13 [Amended] standards district office/certificate holding specifies the FAA’s authority to issue ■ 2. The FAA amends § 39.13 by adding district office. The AMOC approval letter rules on aviation safety. Subtitle I, the following new airworthiness must specifically reference this AD. directive (AD): (2) Contacting the Manufacturer: For any section 106, describes the authority of requirement in this AD to obtain corrective the FAA Administrator. ‘‘Subtitle VII: Airbus Defense and Space S.A. (formerly actions from a manufacturer, the action must Aviation Programs,’’ describes in more known as Construcciones Aeronauticas, be accomplished using a method approved detail the scope of the Agency’s S.A.): Docket No. FAA–2015–4809; by the Manager, International Branch, ANM– authority. Directorate Identifier 2015–NM–012–AD. 116, Transport Airplane Directorate, FAA; or We are issuing this rulemaking under the European Aviation Safety Agency (a) Comments Due Date (EASA); or EADS CASA’s EASA Design the authority described in ‘‘Subtitle VII, We must receive comments by December Organization Approval (DOA). If approved by Part A, Subpart III, Section 44701: 28, 2015. the DOA, the approval must include the General requirements.’’ Under that DOA-authorized signature. section, Congress charges the FAA with (b) Affected ADs promoting safe flight of civil aircraft in None. (i) Related Information (1) Refer to Mandatory Continuing air commerce by prescribing regulations (c) Applicability for practices, methods, and procedures Airworthiness Information (MCAI) EASA This AD applies to the Airbus Defense and Airworthiness Directive 2015–0011, dated the Administrator finds necessary for Space S.A. (formerly known as January 20, 2015, for related information. safety in air commerce. This regulation Construcciones Aeronauticas, S.A.) Model This MCAI may be found in the AD docket is within the scope of that authority CN–235–200 and CN–235–300 airplanes, on the Internet at http://www.regulations.gov because it addresses an unsafe condition certificated in any category, manufacturer by searching for and locating Docket No. that is likely to exist or develop on serial numbers C–018 through C–211 FAA–2015–4809. products identified in this rulemaking inclusive. (2) For service information identified in action. this AD, contact EADS–CASA, Military (d) Subject Transport Aircraft Division (MTAD), Regulatory Findings Air Transport Association (ATA) of Integrated Customer Services (ICS), America Code 26, Fire Protection. Technical Services, Avenida de Arago´n 404, We determined that this proposed AD 28022 Madrid, Spain; telephone +34 91 585 would not have federalism implications (e) Reason 55 84; fax +34 91 585 55 05; email under Executive Order 13132. This This AD was prompted by reports of false [email protected]; proposed AD would not have a engine fire warning events, which Internet http://www.eads.net.You may view substantial direct effect on the States, on consequently led to engine in-flight shut this service information at the FAA, Transport Airplane Directorate, 1601 Lind the relationship between the national down. We are issuing this AD to prevent unnecessary in-flight-shutdown of an engine, Avenue SW., Renton, WA. For information Government and the States, or on the which could result in reduced controllability on the availability of this material at the distribution of power and of the airplane. FAA, call 425–227–1221. responsibilities among the various (f) Compliance Issued in Renton, Washington, on October levels of government. 30, 2015. Comply with this AD within the For the reasons discussed above, I Michael Kaszycki, certify this proposed regulation: compliance times specified, unless already done. Acting Manager, Transport Airplane 1. Is not a ‘‘significant regulatory Directorate, Aircraft Certification Service. action’’ under Executive Order 12866; (g) Modification of Engine Fire [FR Doc. 2015–28560 Filed 11–10–15; 8:45 am] Extinguishing/Detection System 2. Is not a ‘‘significant rule’’ under the BILLING CODE 4910–13–P DOT Regulatory Policies and Procedures Within 18 months after the effective date (44 FR 11034, February 26, 1979); of this AD: Modify the location and routing of the engine fire detection system, in DEPARTMENT OF TRANSPORTATION 3. Will not affect intrastate aviation in accordance with the Accomplishment Alaska; and Instructions of EADS CASA Service Bulletin Federal Aviation Administration 4. Will not have a significant SB–235–26–0006, dated July 8, 2014. economic impact, positive or negative, (h) Other FAA AD Provisions 14 CFR Part 39 on a substantial number of small entities The following provisions also apply to this under the criteria of the Regulatory [Docket No. FAA–2015–4810; Directorate AD: Identifier 2015–NM–090–AD] Flexibility Act. (1) Alternative Methods of Compliance List of Subjects in 14 CFR Part 39 (AMOCs): The Manager, International RIN 2120–AA64 Branch, ANM–116, Transport Airplane Air transportation, Aircraft, Aviation Directorate, FAA, has the authority to Airworthiness Directives; Airbus safety, Incorporation by reference, approve AMOCs for this AD, if requested Airplanes Safety. using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your AGENCY: Federal Aviation The Proposed Amendment request to your principal inspector or local Administration (FAA), DOT. Flight Standards District Office, as ACTION: Notice of proposed rulemaking Accordingly, under the authority appropriate. If sending information directly (NPRM). delegated to me by the Administrator, to the International Branch, send it to ATTN: the FAA proposes to amend 14 CFR part Shahram Daneshmandi, Aerospace Engineer, SUMMARY: We propose to adopt a new 39 as follows: International Branch, ANM–116, Transport airworthiness directive (AD) for all

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Airbus Model A330–200, –200 Examining the AD Docket Mach number increased. The flight crew managed to regain full control and the flight Freighter, and –300 series airplanes; and You may examine the AD docket on all Airbus Model A340–200, –300, –500, landed uneventfully. It was determined that the Internet at http:// the affected AOA probes are also fitted on and –600 series airplanes. This www.regulations.gov by searching for A330 and A340 aeroplanes. proposed AD was prompted by a report and locating Docket No. FAA–2015– When Alpha Prot is activated due to of blockage of Angle of Attack (AOA) 4810; or in person at the Docket blocked AOA probes, the flight control laws probes during climb, leading to Management Facility between 9 a.m. order a continuous nose down pitch rate that, activation of the Alpha Protection and 5 p.m., Monday through Friday, in a worst case scenario, cannot be stopped (Alpha Prot) while the Mach number with backward sidestick inputs, even in the except Federal holidays. The AD docket full backward position. If the Mach number increased. This activation could cause a contains this proposed AD, the continuous nose-down pitch rate that increases during a nose down order, the AOA regulatory evaluation, any comments value of the Alpha Prot will continue to cannot be stopped with backward received, and other information. The decrease. As a result, the flight control laws sidestick input, even in the full street address for the Docket Operations will continue to order a nose down pitch backward position. For certain office (telephone 800–647–5527) is in rate, even if the speed is above minimum airplanes, this proposed AD would the ADDRESSES section. Comments will selectable speed, known as VLS. require replacing certain AOA sensors This condition, if not corrected, could be available in the AD docket shortly result in loss of control of the aeroplane. (probes) with certain new AOA sensors. after receipt. For certain other airplanes, this Investigation results indicated that FOR FURTHER INFORMATION CONTACT: aeroplanes equipped with certain UTC proposed AD would also require Vladimir Ulyanov, Aerospace Engineer, Aerospace (UTAS, formerly known as inspections and functional heat testing International Branch, ANM–116, Goodrich) AOA sensors, or equipped with of certain AOA sensors for Transport Airplane Directorate, FAA, certain SEXTANT/THOMSON AOA sensors, discrepancies, and replacement if appear to have a greater susceptibility to 1601 Lind Avenue SW., Renton, WA necessary. We are proposing this AD to adverse environmental conditions than 98057–3356; telephone 425–227–1138; prevent erroneous AOA information and aeroplanes equipped with the latest Thales fax 425–227–1149. Alpha Prot activation due to blocked AOA sensor, Part Number (P/N) C16291AB, SUPPLEMENTARY INFORMATION: which was designed to improve AOA AOA probes, which could result in a indication behaviour in heavy rain continuous nose-down command and Comments Invited conditions. consequent loss of control of the We invite you to send any written Having determined that replacement of airplane. relevant data, views, or arguments about these AOA sensors is necessary to achieve and maintain the required safety level of the DATES: We must receive comments on this proposed AD. Send your comments aeroplane, EASA issued AD 2015–0089, to this proposed AD by December 28, to an address listed under the require modification of the aeroplanes by 2015. ADDRESSES section. Include ‘‘Docket No. replacement of the affected P/N sensors, and, FAA–2015–4810; Directorate Identifier after modification, prohibits (re-) installation ADDRESSES: You may send comments, 2015–NM–090–AD’’ at the beginning of of those P/N AOA sensors. That [EASA] AD using the procedures found in 14 CFR your comments. We specifically invite also required repetitive detailed visual 11.43 and 11.45, by any of the following comments on the overall regulatory, inspections (DET) and functional heating methods: economic, environmental, and energy tests of certain Thales AOA sensors and • provided an optional terminating action for Federal eRulemaking Portal: Go to aspects of this proposed AD. We will those inspections. http://www.regulations.gov. Follow the consider all comments received by the Since EASA AD 2015–0089 was issued, instructions for submitting comments. closing date and may amend this based on further analysis results, Airbus • Fax: 202–493–2251. proposed AD based on those comments. issued Operators Information Transmission • Mail: U.S. Department of We will post all comments we (OIT) Ref. 999.0017/15 Revision 1, receive, without change, to http:// instructing operators to speed up the removal Transportation, Docket Operations, M– from service of UTAS P/N 0861ED2 AOA 30, West Building Ground Floor, Room www.regulations.gov, including any personal information you provide. We sensors. W12–140, 1200 New Jersey Avenue SE., For the reasons described above, this Washington, DC 20590. will also post a report summarizing each [EASA] AD retains the requirements of EASA substantive verbal contact we receive • Hand Delivery: U.S. Department of AD 2015–0089, which is superseded, but about this proposed AD. Transportation, Docket Operations, M– reduces the compliance times for aeroplanes Discussion with UTAS P/N 0861ED2 AOA sensors 30, West Building Ground Floor, Room installed. W12–140, 1200 New Jersey Avenue SE., The European Aviation Safety Agency Washington, DC, between 9 a.m. and 5 You may examine the MCAI in the (EASA), which is the Technical Agent AD docket on the Internet at http:// p.m., Monday through Friday, except for the Member States of the European Federal holidays. www.regulations.gov by searching for Union, has issued EASA Airworthiness and locating Docket No. FAA–2015– For service information identified in Directive 2015–0134, dated July 8, 2015 4810. this proposed AD, contact Airbus SAS, (referred to after this as the Mandatory Airworthiness Office—EAL, 1 Rond Continuing Airworthiness Information, Related Service Information Under 1 Point Maurice Bellonte, 31707 Blagnac or ‘‘the MCAI’’), to correct an unsafe CFR Part 51 Cedex, France; telephone +33 5 61 93 36 condition for all Airbus Model A330– Airbus has issued the following 96; fax +33 5 61 93 45 80; email 200, –200 Freighter, and –300 series service information: [email protected]; airplanes; and Model A340–200, –300, • Service Bulletin A330–34–3215, Internet http://www.airbus.com. You –500, and –600 series airplanes. The Revision 02, dated March 29, 2010. may view this referenced service MCAI states: • Service Bulletin A330–34–3228, information at the FAA, Transport dated October 7, 2009. An occurrence was reported where an • Airplane Directorate, 1601 Lind Avenue Airbus A321 aeroplane encountered a Service Bulletin A330–34–3315, SW., Renton, WA. For information on blockage of two Angle of Attack (AOA) dated March 26, 2015. the availability of this material at the probes during climb, leading to activation of • Service Bulletin A340–34–4215, FAA, call 425–227–1221. the Alpha Protection (Alpha Prot) while the Revision 02, dated March 29, 2010.

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• Service Bulletin A340–34–4234, functional heat testing of certain pitot bilateral agreement with the State of dated October 7, 2009. probes, and replacement if necessary. Design Authority, we have been notified • Service Bulletin A340–34–4294, This service information is reasonably of the unsafe condition described in the dated March 26, 2015. available because the interested parties MCAI and service information • Service Bulletin A340–34–5062, have access to it through their normal referenced above. We are proposing this Revision 01, dated March 29, 2010. course of business or by the means • AD because we evaluated all pertinent Service Bulletin A340–34–5070, identified in the ADDRESSES section of information and determined an unsafe dated October 9, 2009. this NPRM. condition exists and is likely to exist or • Service Bulletin A340–34–5105, develop on other products of these same dated March 26, 2015. FAA’s Determination and Requirements The service information describes of This Proposed AD type designs. procedures for replacing certain pitot This product has been approved by Costs of Compliance probes with certain new pitot probes. the aviation authority of another The service information also describes country, and is approved for operation We estimate that this proposed AD procedures for inspections and in the United States. Pursuant to our affects 55 airplanes of U.S. registry.

ESTIMATED COSTS

Cost on U.S. Action Labor cost Parts cost Cost per product operators

Replacement ...... 5 work-hours × $85 per hour = $425 ...... $0 $425 ...... $23,375 Inspection/test ...... 3 work-hours × $85 per hour = $255 ...... 0 $255 per inspection/test cycle ...... 14,025

We have received no definitive data 2. Is not a ‘‘significant rule’’ under the paragraphs (c)(1) and (c)(2) of this AD, all that would enable us to provide a cost DOT Regulatory Policies and Procedures manufacturer serial numbers. estimate for the on-condition actions (44 FR 11034, February 26, 1979); (1) Airbus Model A330–201, –202, –203, specified in this proposed AD. 3. Will not affect intrastate aviation in –223, –223F, –243, –243F, –301, –302, –303, –321, –322, –323, –341, –342, and –343 Alaska; and Authority for This Rulemaking airplanes. 4. Will not have a significant (2) Airbus Model A340–211, –212, –213, Title 49 of the United States Code economic impact, positive or negative, –311, –312, –313, –541, and –642 airplanes. specifies the FAA’s authority to issue on a substantial number of small entities rules on aviation safety. Subtitle I, under the criteria of the Regulatory (d) Subject section 106, describes the authority of Flexibility Act. Air Transport Association (ATA) of the FAA Administrator. ‘‘Subtitle VII: America Code 34, Navigation. List of Subjects in 14 CFR Part 39 Aviation Programs,’’ describes in more (e) Reason detail the scope of the Agency’s Air transportation, Aircraft, Aviation This AD was prompted by a report of authority. safety, Incorporation by reference, blockage of two Angle of Attack (AOA) We are issuing this rulemaking under Safety. probes during climb, leading to activation of the authority described in ‘‘Subtitle VII, the Alpha Protection (Alpha Prot) while the Part A, Subpart III, Section 44701: The Proposed Amendment Mach number increased. This activation General requirements.’’ Under that Accordingly, under the authority could cause a continuous nose-down pitch section, Congress charges the FAA with delegated to me by the Administrator, rate that cannot be stopped with backward promoting safe flight of civil aircraft in the FAA proposes to amend 14 CFR part sidestick input, even in the full backward air commerce by prescribing regulations 39 as follows: position. We are issuing this AD to prevent erroneous AOA information and Alpha Prot for practices, methods, and procedures PART 39—AIRWORTHINESS activation due to blocked AOA probes, which the Administrator finds necessary for could result in a continuous nose-down safety in air commerce. This regulation DIRECTIVES command and consequent loss of control of is within the scope of that authority the airplane. ■ because it addresses an unsafe condition 1. The authority citation for part 39 (f) Compliance that is likely to exist or develop on continues to read as follows: products identified in this rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. Comply with this AD within the action. compliance times specified, unless already § 39.13 [Amended] done. Regulatory Findings ■ 2. The FAA amends § 39.13 by adding (g) Replacement of Certain UTAS AOA We determined that this proposed AD the following new airworthiness Sensors would not have federalism implications directive (AD): For airplanes on which any UTAS AOA under Executive Order 13132. This Airbus: Docket No. FAA–2015–4810; sensor having part number (P/N) 0861ED or proposed AD would not have a Directorate Identifier 2015–NM–090–AD. P/N 0861ED2 is installed: At the applicable substantial direct effect on the States, on time specified in paragraph (h) of this AD, the relationship between the national (a) Comments Due Date replace all Captain and First Officer AOA Government and the States, or on the We must receive comments by December sensors (probes) having P/N 0861ED or distribution of power and 28, 2015. 0861ED2 with AOA sensors having Thales P/ N C16291AB, in accordance with the responsibilities among the various (b) Affected ADs Accomplishment Instructions of the levels of government. None. applicable service information identified in For the reasons discussed above, I paragraph (g)(1), (g)(2), or (g)(3) of this AD. certify this proposed regulation: (c) Applicability (1) Airbus Service Bulletin A330–34–3315, 1. Is not a ‘‘significant regulatory This AD applies to the airplanes, dated March 26, 2015 (for Model A330 action’’ under Executive Order 12866; certificated in any category, identified in airplanes).

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(2) Airbus Service Bulletin A340–34–4294, applicable service information identified in (2) For airplanes on which the dated March 26, 2015 (for Model A340–200 paragraph (j)(1), (j)(2), or (j)(3) of this AD. modification specified in paragraph (m) of and –300 airplanes). (1) Replace with AOA sensors having this AD has been done: No person may (3) Airbus Service Bulletin A340–34–5105, Thales P/N C16291AA, on which the install, on any airplane, a Thales AOA sensor dated March 26, 2015 (for Model A340–500 inspection and test required by paragraph (j) having P/N C16291AA after accomplishing and –600 airplanes). of this AD were passed. the specified modification. (2) Replace with AOA sensors having (3) For airplanes on which Thales P/N (h) Compliance Times for the Requirements Thales P/N C16291AB. C16291AA or P/N C16291AB AOA sensors of Paragraph (g) of This AD (l) Airplanes Excluded From Certain are installed as of the effective date of this Do the actions required by paragraph (g) of Requirements AD: No person may install, on any airplane, this AD at the applicable time specified in a UTAS AOA sensor having P/N 0861ED or paragraph (h)(1) or (h)(2) of this AD. (1) The actions specified in paragraphs (g), P/N 0861ED2, or a SEXTANT/THOMSON (1) For airplanes with AOA sensors having (i), (j), and (k) of this AD are not required, AOA sensor having P/N 45150320, as of the P/N 0861ED: Within 22 months after the provided that the conditions specified in effective date of this AD. effective date of this AD. paragraphs (l)(1)(i), (l)(1)(ii), and (l)(1)(iii) of (4) For airplanes on which the replacement (2) For airplanes with AOA sensors having this AD are met. required by paragraph (i) of this AD has been P/N 0861ED2: Within 7 months after the (i) Airbus Modification 58555 (installation done: No person may install, on any airplane, effective date of this AD. of Thales P/N C16291AB AOA sensors) has a UTAS AOA sensor having P/N 0861ED or been embodied in production. P/N 0861ED2, or a SEXTANT/THOMSON (i) Replacement of Certain SEXTANT/ (ii) Airbus Modification 46921 (installation AOA sensor having P/N 45150320, after THOMSON AOA Sensors of UTAS AOA sensors) has not been accomplishing the replacement. For airplanes on which any SEXTANT/ embodied in production. (5) For airplanes on which the replacement THOMSON AOA sensor having P/N (iii) No AOA sensor having SEXTANT/ required by paragraph (g) of this AD has been 45150320 is installed: Within 22 months after THOMSON P/N 45150320 or UTAS P/N done: No person may install, on any airplane, 0861ED or P/N 0861ED2 has been installed the effective date of this AD, replace all a UTAS AOA sensor having P/N 0861ED or on the airplane since date of issuance of the SEXTANT/THOMSON AOA sensors (probes) P/N 0861ED2, or a SEXTANT/THOMSON original airworthiness certificate or date of having P/N 45150320 with AOA sensors AOA sensor having P/N 45150320, after issuance of the original export certificate of having Thales P/N C16291AB, in accordance accomplishing the replacement, except that a airworthiness. with the Accomplishment Instructions of the UTAS AOA sensor having P/N 0861ED may (2) The actions specified in paragraphs (g) applicable service information identified in be installed in the standby position of that and (i) of this AD are not required, provided paragraph (i)(1) or (i)(2) of this AD. airplane. that all conditions specified in paragraphs (1) Airbus Service Bulletin A330–34–3228, (l)(2)(i), (l)(2)(ii), and (l)(2)(iii) of this AD are (o) Other FAA AD Provisions dated October 7, 2009 (for Model A330–200 met. The following provisions also apply to this and –300 airplanes). (i) Only AOA sensors with P/Ns approved (2) Airbus Service Bulletin A340–34–4234, AD: after the effective date of this AD have been (1) Alternative Methods of Compliance dated October 7, 2009 (for Model A340–200 installed. (AMOCs): The Manager, International and –300 airplanes). (ii) The AOA sensor P/N is approved by Branch, ANM–116, Transport Airplane the Manager, International Branch, ANM– (j) Repetitive Inspections/Tests of Certain Directorate, FAA, has the authority to 116, Transport Airplane Directorate, FAA; Thales AOA Sensors approve AMOCs for this AD, if requested the European Aviation Safety Agency For airplanes on which one or more Thales using the procedures found in 14 CFR 39.19. (EASA); or Airbus’s EASA Design AOA sensor having P/N C16291AA is In accordance with 14 CFR 39.19, send your Organization Approval (DOA). request to your principal inspector or local installed: Before the accumulation of 17,000 (iii) The installation is accomplished in Flight Standards District Office, as total flight hours on the AOA sensor since accordance with airplane modification appropriate. If sending information directly first installation on an airplane, or within 6 instructions approved by the Manager, months after the effective date of this AD, International Branch, ANM–116, Transport to the International Branch, send it to ATTN: whichever occurs later; and thereafter at Airplane Directorate, FAA; the EASA; or Vladimir Ulyanov, Aerospace Engineer, intervals not to exceed 3,800 flight hours; do Airbus’s EASA DOA. International Branch, ANM–116, Transport a detailed inspection of the three AOA Airplane Directorate, FAA, 1601 Lind sensors at FINs 3FP1, 3FP2, and 3FP3 for (m) Optional Terminating Modification Avenue SW., Renton, WA 98057–3356; discrepancies (e.g., the vane of the sensor Replacement of all Thales AOA sensors telephone 425–227–1138; fax 425–227–1149. does not deice properly), and a functional having P/N C16291AA with Thales AOA Information may be emailed to: 9-ANM-116- heating test of each AOA sensor having P/N sensors having P/N C16291AB, in accordance [email protected]. Before using C16291AA, in accordance with the with the Accomplishment Instructions of the any approved AMOC, notify your appropriate Accomplishment Instructions of the applicable service information identified in principal inspector, or lacking a principal applicable service information identified in paragraph (m)(1), (m)(2), or (m)(3) of this AD, inspector, the manager of the local flight paragraph (j)(1), (j)(2), or (j)(3) of this AD. terminates the repetitive inspections and standards district office/certificate holding (1) Airbus Service Bulletin A330–34–3215, functional heating tests required by district office. The AMOC approval letter Revision 02, dated March 29, 2010 (for Model paragraph (j) of this AD. must specifically reference this AD. A330–200 and –300 airplanes). (1) Airbus Service Bulletin A330–34–3228, (2) Contacting the Manufacturer: For any (2) Airbus Service Bulletin A340–34–4215, dated October 7, 2009 (for Model A330–200 requirement in this AD to obtain corrective Revision 02, dated March 29, 2010 (for Model and –300 airplanes). actions from a manufacturer, the action must A340–200 and –300 airplanes). (2) Airbus Service Bulletin A340–34–4234, be accomplished using a method approved (3) Airbus Service Bulletin A340–34–5062, dated October 7, 2009 (for Model A340–200 by the Manager, International Branch, ANM– Revision 01, dated March 29, 2010 (for Model and –300 airplanes). 116, Transport Airplane Directorate, FAA; or A340–500 and –600 airplanes). (3) Airbus Service Bulletin A340–34–5070, the EASA; or Airbus’s EASA DOA. If dated October 9, 2009 (for Model A340–500 approved by the DOA, the approval must (k) Corrective Actions and –600 airplanes). include the DOA-authorized signature. If any discrepancy is found during any inspection required by paragraph (j) of this (n) Parts Installation Prohibitions (p) Related Information AD, or if any test is failed during the heating (1) For airplanes on which only Thales P/ (1) Refer to Mandatory Continuing test required by paragraph (j) of this AD: N C16291AB AOA sensors are installed as of Airworthiness Information (MCAI) EASA Before further flight, replace all affected AOA the effective date of this AD: No person may Airworthiness Directive 2015–0134, dated sensors with sensors identified in paragraph install, on any airplane, a Thales AOA sensor July 8, 2015, for related information. This (k)(1) or (k)(2) of this AD, in accordance with having P/N C16291AA as of the effective date MCAI may be found in the AD docket on the the Accomplishment Instructions of the of this AD. Internet at http://www.regulations.gov by

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searching for and locating Docket No. FAA– 11.43 and 11.45, by any of the following FAA–2015–4212; Directorate Identifier 2015–4810. methods: 2015–NM–010–AD’’ at the beginning of (2) For service information identified in • Federal eRulemaking Portal: Go to your comments. We specifically invite this AD, contact Airbus SAS, Airworthiness http://www.regulations.gov. Follow the comments on the overall regulatory, Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 instructions for submitting comments. economic, environmental, and energy • Fax: 202–493–2251. aspects of this proposed AD. We will 5 61 93 36 96; fax +33 5 61 93 45 80; email • [email protected]; Mail: U.S. Department of consider all comments received by the Internet http://www.airbus.com. You may Transportation, Docket Operations, M– closing date and may amend this view this service information at the FAA, 30, West Building Ground Floor, Room proposed AD based on those comments. Transport Airplane Directorate, 1601 Lind W12–140, 1200 New Jersey Avenue SE., We will post all comments we Avenue SW., Renton, WA. For information Washington, DC 20590. receive, without change, to http:// on the availability of this material at the • Hand Delivery: U.S. Department of FAA, call 425–227–1221. www.regulations.gov, including any Transportation, Docket Operations, M– personal information you provide. We Issued in Renton, Washington, on October 30, West Building Ground Floor, Room will also post a report summarizing each 30, 2015. W12–140, 1200 New Jersey Avenue SE., substantive verbal contact we receive Michael Kaszycki, Washington, DC, between 9 a.m. and 5 about this proposed AD. Acting Manager, Transport Airplane p.m., Monday through Friday, except Directorate, Aircraft Certification Service. Federal holidays. Discussion [FR Doc. 2015–28559 Filed 11–10–15; 8:45 am] For service information identified in The European Aviation Safety Agency BILLING CODE 4910–13–P this proposed AD, contact BAE Systems (Operations) Limited, Customer (EASA), which is the Technical Agent Information Department, Prestwick for the Member States of the European DEPARTMENT OF TRANSPORTATION International Airport, Ayrshire, KA9 Union, has issued EASA Airworthiness 2RW, Scotland, United Kingdom; Directive 2012–0191R1, dated Federal Aviation Administration telephone +44 1292 675207; fax +44 November 6, 2012 (referred to after this 1292 675704; email RApublications@ as the Mandatory Continuing 14 CFR Part 39 baesystems.com; Internet http:// Airworthiness Information, or ‘‘the www.baesystems.com/Businesses/ MCAI’’), to correct an unsafe condition [Docket No. FAA–2015–4212; Directorate for all BAE Systems (Operations) Identifier 2015–NM–010–AD] RegionalAircraft/index.htm. You may view this referenced service information Limited Model BAe 146 series airplanes RIN 2120–AA64 at the FAA, Transport Airplane and Model Avro 146–RJ series airplanes. The MCAI states: Airworthiness Directives; BAE Directorate, 1601 Lind Avenue SW., Systems (Operations) Limited Renton, WA. For information on the Several occurrences of the aeroplane‘s Nose Landing Gear (NLG) Main Fitting Airplanes availability of this material at the FAA, call 425–227–1221. cracking have been reported. Subsequently in AGENCY: Federal Aviation different cases, NLG Main Fitting crack lead Administration (FAA), DOT. Examining the AD Docket to collapsed NLG, locked NLG steering and an aeroplane‘s un-commanded steering to the ACTION: Notice of proposed rulemaking You may examine the AD docket on left. (NPRM). the Internet at http:// Cracks in the NLG Bell Housing are not www.regulations.gov by searching for detectable with the NLG fitted to the SUMMARY: We propose to adopt a new and locating Docket No. FAA–2015– aeroplane and are difficult to detect during airworthiness directive (AD) for all BAE 4212; or in person at the Docket overhaul without substantial disassembly of Systems (Operations) Limited Model Management Facility between 9 a.m. the gear. BAe 146 series airplanes and Model and 5 p.m., Monday through Friday, This condition, if not corrected, could lead Avro 146–RJ series airplanes. This except Federal holidays. The AD docket to degradation of directional control on the proposed AD was prompted by reports contains this proposed AD, the ground or an un-commanded turn to the left and a consequent loss of control of the of cracking of the main fitting of the regulatory evaluation, any comments nose landing gear (NLG) and a aeroplane on the ground, possibly resulting received, and other information. The in damage to the aeroplane and injury to determination that a new safe-life street address for the Docket Operations occupants. limitation for affected NLG main fittings office (telephone 800–647–5527) is in Prompted by these findings, BAE Systems has not been mandated. This proposed the ADDRESSES section. Comments will (Operations) Ltd issued Inspection Service AD would require replacing affected be available in the AD docket shortly Bulletin (ISB) 32–186 (hereafter referred to as NLG main fittings that have exceeded after receipt. the ISB) to introduce a new safe life of 16,000 flight cycles (FC) for certain NLG main the safe-life limitation with a new or FOR FURTHER INFORMATION CONTACT: serviceable fitting. We are proposing fittings, having a Part Number (P/N) as Todd Thompson, Aerospace Engineer, identified in Paragraph 1A, tables 1, 2 and 3 this AD to prevent collapse of the NLG, International Branch, ANM–116, which if not corrected, could lead to of the ISB. Transport Airplane Directorate, FAA, To correct this unsafe condition, EASA degradation of direction control on the 1601 Lind Avenue SW., Renton, WA issued [EASA] AD 2012–0191 to require ground or an un-commanded turn to the 98057–3356; telephone 425–227–1175; implementation of the new safe-life left, and a consequent loss of control of fax 425–227–1149. limitation for the affected NLG main fittings the airplane on the ground, possibly and replacement of fittings that have already SUPPLEMENTARY INFORMATION: resulting in damage to the airplane and exceeded the new limit. injury to occupants. Comments Invited * * * * * DATES: We must receive comments on We invite you to send any written You may examine the MCAI in the this proposed AD by December 28, relevant data, views, or arguments about AD docket on the Internet at http:// 2015. this proposed AD. Send your comments www.regulations.gov by searching for ADDRESSES: You may send comments, to an address listed under the and locating Docket No. FAA–2015– using the procedures found in 14 CFR ADDRESSES section. Include ‘‘Docket No. 4212.

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Related Service Information Under 1 Costs of Compliance The Proposed Amendment CFR Part 51 We estimate that this proposed AD Accordingly, under the authority BAE Systems (Operations) Limited affects 4 airplanes of U.S. registry. delegated to me by the Administrator, We also estimate that it would take the FAA proposes to amend 14 CFR part has issued Inspection Service Bulletin about 36 work-hours per product to 39 as follows: ISB.32–186, dated April 12, 2012. This comply with the basic requirements of service information describes this proposed AD. The average labor PART 39—AIRWORTHINESS procedures for determining the rate is $85 per work-hour. Required DIRECTIVES compliance times for replacing the NLG parts would cost $81,000 per product. ■ main fittings. This service information Based on these figures, we estimate the 1. The authority citation for part 39 is reasonably available because the cost of this proposed AD on U.S. continues to read as follows: interested parties have access to it operators to be $336,240, or $84,060 per Authority: 49 U.S.C. 106(g), 40113, 44701. through their normal course of business product. or by the means identified in the § 39.13 [Amended] ADDRESSES section of this NPRM. Authority for This Rulemaking ■ 2. The FAA amends § 39.13 by adding Title 49 of the United States Code the following new airworthiness Related Rulemaking specifies the FAA’s authority to issue directive (AD): On August 4, 2014, we issued AD rules on aviation safety. Subtitle I, BAE Systems (Operations) Limited: Docket 2014–16–18, Amendment 39–17942 (79 section 106, describes the authority of No. FAA–2015–4212; Directorate FR 51234, August 28, 2014). AD 2014– the FAA Administrator. ‘‘Subtitle VII: Identifier 2015–NM–010–AD. 16–18 requires revising the maintenance Aviation Programs,’’ describes in more (a) Comments Due Date program by incorporating a new safe-life detail the scope of the Agency’s We must receive comments by December limitation for the NLG main fitting on authority. 28, 2015. We are issuing this rulemaking under all BAE Systems (Operations) Limited (b) Affected ADs Model BAe 146 series airplanes and the authority described in ‘‘Subtitle VII, Part A, Subpart III, Section 44701: None. Model Avro 146–RJ series airplanes. General requirements.’’ Under that Since we issued AD 2014–16–18, (c) Applicability section, Congress charges the FAA with Amendment 39–17942 (79 FR 51234, promoting safe flight of civil aircraft in This AD applies to BAE Systems August 28, 2014), we have determined (Operations) Limited Model BAe 146–100A, air commerce by prescribing regulations that the new safe-life limitation for –200A, and –300A airplanes; and Model for practices, methods, and procedures affected NLG main fittings has not been Avro 146–RJ70A, 146–RJ85A, and 146– the Administrator finds necessary for RJ100A airplanes; certificated in any mandated because the safe-life safety in air commerce. This regulation category, all models, all serial numbers. limitation was not incorporated in is within the scope of that authority (d) Subject Subject 05–10–15, Aircraft Equipment because it addresses an unsafe condition Airworthiness Limitations, of Section that is likely to exist or develop on Air Transport Association (ATA) of 05–10, Time Limits, of Chapter 05, Time America Code 05, Time Limits/Maintenance products identified in this rulemaking Checks. Limits/Maintenance Checks, of the BAE action. Systems (Operations) Limited BAe 146 (e) Reason Regulatory Findings Series/Avro 146–RJ Series Aircraft This AD was prompted by reports of Maintenance Manual, Revision 108, We determined that this proposed AD cracking of the main fitting of the nose dated September 14, 2012 (which was would not have federalism implications landing gear (NLG) and a determination that referred to as the appropriate source of under Executive Order 13132. This a new safe-life limitation for affected NLG service information for incorporating proposed AD would not have a main fittings has not been mandated. We are the safe-life limitation into the substantial direct effect on the States, on issuing this AD to prevent collapse of the NLG, which if not corrected could lead to maintenance or inspections program). the relationship between the national degradation of direction control on the Therefore, the FAA has determined that Government and the States, or on the ground or an uncommanded turn to the left, it is necessary to require the distribution of power and and a consequent loss of control of the replacement of NLG main fittings that responsibilities among the various airplane on the ground, possibly resulting in have exceeded the safe-life limitation levels of government. damage to the airplane and injury to with a new or serviceable fitting. For the reasons discussed above, I occupants. certify this proposed regulation: (f) Compliance FAA’s Determination and Requirements 1. Is not a ‘‘significant regulatory of This Proposed AD Comply with this AD within the action’’ under Executive Order 12866; compliance times specified, unless already 2. Is not a ‘‘significant rule’’ under the This product has been approved by done. DOT Regulatory Policies and Procedures the aviation authority of another (44 FR 11034, February 26, 1979); (g) Repetitive Replacement of Nose Landing country, and is approved for operation 3. Will not affect intrastate aviation in Gear (NLG) Main Fitting in the United States. Pursuant to our Alaska; and At the applicable compliance time bilateral agreement with the State of 4. Will not have a significant specified in paragraphs (g)(1) through (g)(4) Design Authority, we have been notified economic impact, positive or negative, of this AD: Replace each affected nose of the unsafe condition described in the on a substantial number of small entities landing gear (NLG) main fitting, having a part MCAI and service information under the criteria of the Regulatory number (P/N) as identified in paragraph 1.A, tables 1., 2., and 3. of BAE Systems referenced above. We are proposing this Flexibility Act. AD because we evaluated all pertinent (Operations) Limited Inspection Service List of Subjects in 14 CFR Part 39 Bulletin ISB.32–186, dated April 12, 2012, in information and determined an unsafe accordance with the Accomplishment condition exists and is likely to exist or Air transportation, Aircraft, Aviation Instructions of that BAE Systems develop on other products of the same safety, Incorporation by reference, (Operations) Limited Inspection Service type design. Safety. Bulletin ISB.32–186, dated April 12, 2012.

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Thereafter, before the accumulation of 16,000 116, Transport Airplane Directorate, FAA; or the term ‘‘natural’’ for use in food flight cycles on any affected NLG main fitting the European Aviation Safety Agency labeling and one citizen petition asking having a part number as identified in (EASA); or BAE Systems (Operations) that we prohibit the term ‘‘natural’’ on paragraph 1.A, tables 1., 2., and 3. of BAE Limited’s EASA Design Organization food labels. We also note that some Systems (Operations) Limited Inspection Approval (DOA). If approved by the DOA, Service Bulletin ISB.32–186, dated April 12, the approval must include the DOA- Federal courts, as a result of litigation 2012, replace each affected nose landing gear authorized signature. between private parties, have requested (NLG) main fitting, in accordance with the administrative determinations from (j) Related Information Accomplishment Instructions of that BAE FDA regarding whether food products Systems (Operations) Limited Inspection (1) Refer to Mandatory Continuing containing ingredients produced using Service Bulletin ISB.32–186, dated April 12, Airworthiness Information (MCAI) European genetic engineering or foods containing 2012. Aviation Safety Agency (EASA) high fructose corn syrup may be labeled (1) For NLG main fittings that have Airworthiness Directive 2012–0191R1, dated November 6, 2012, for related information. as ‘‘natural.’’ We are working with the accumulated 29,000 flight cycles or more United States Department of Agriculture since first installation on an airplane: Within This MCAI may be found in the AD docket 12 months after the effective date of this AD. on the Internet at http://www.regulations.gov (USDA) Agricultural Marketing Service (2) For NLG main fittings that have 20,000 by searching for and locating Docket No. and Food Safety and Inspection Service flight cycles or more but less than 29,000 FAA–2015–4212. to also examine the use of the term flight cycles since first installation on an (2) For service information identified in ‘‘natural’’ in meat, poultry, and egg airplane: Within 24 months after the effective this AD, contact BAE Systems (Operations) products, and are considering areas for date of this AD. Limited, Customer Information Department, coordination between FDA and USDA. Prestwick International Airport, Ayrshire, (3) For NLG main fittings that have 16,000 We invite public comment on the term flight cycles or more but less than 20,000 KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 ‘‘natural’’ in the context of food labeling flight cycles since first installation on an and on specific questions contained in airplane: Within 36 months after the effective 675704; email RApublications@ date of this AD. baesystems.com; Internet http:// this document. (4) For NLG main fittings that have www.baesystems.com/Businesses/ DATES: Comments must be received on accumulated less than 16,000 flight cycles RegionalAircraft/index.htm. You may view or before February 10, 2016. this service information at the FAA, since first installation on an airplane: Before ADDRESSES: You may submit comments accumulating 16,000 flight cycles since first Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information as follows: installation on an airplane or within 36 on the availability of this material at the months after the effective date of this AD, FAA, call 425–227–1221. Electronic Submissions whichever occurs later. Issued in Renton, Washington, on October Submit electronic comments in the (h) Parts Installation Limitation 30, 2015. following way: • As of the effective date of this AD, no Michael Kaszycki, Federal eRulemaking Portal: http:// person may install an NLG main fitting Acting Manager, Transport Airplane www.regulations.gov. Follow the having a part number identified in paragraph Directorate, Aircraft Certification Service. instructions for submitting comments. 1.A., Tables 1., 2., and 3., of BAE Systems [FR Doc. 2015–28561 Filed 11–10–15; 8:45 am] Comments submitted electronically, (Operations) Limited Inspection Service including attachments, to http:// Bulletin ISB.32–186, dated April 12, 2012, BILLING CODE 4910–13–P unless that fitting is in compliance with the www.regulations.gov will be posted to requirements of this AD. the docket unchanged. Because your comment will be made public, you are DEPARTMENT OF HEALTH AND (i) Other FAA AD Provisions solely responsible for ensuring that your HUMAN SERVICES The following provisions also apply to this comment does not include any AD: Food and Drug Administration confidential information that you or a (1) Alternative Methods of Compliance third party may not wish to be posted, (AMOCs): The Manager, International such as medical information, your or Branch, ANM–116, Transport Airplane 21 CFR Part 101 anyone else’s Social Security number, or Directorate, FAA, has the authority to [Docket No. FDA–2014–N–1207] approve AMOCs for this AD, if requested confidential business information, such using the procedures found in 14 CFR 39.19. as a manufacturing process. Please note Use of the Term ‘‘Natural’’ in the that if you include your name, contact In accordance with 14 CFR 39.19, send your Labeling of Human Food Products; request to your principal inspector or local information, or other information that Flight Standards District Office, as Request for Information and identifies you in the body of your appropriate. If sending information directly Comments comments, that information will be to the International Branch, send it to ATTN: AGENCY: Food and Drug Administration, posted on http://www.regulations.gov. Todd Thompson, Aerospace Engineer, • If you want to submit a comment International Branch, ANM–116, Transport HHS. Airplane Directorate, FAA, 1601 Lind ACTION: Notification of request for with confidential information that you Avenue SW., Renton, WA 98057–3356; comments. do not wish to be made available to the telephone 425–227–1175; fax 425–227–1149. public, submit the comment as a Information may be emailed to: 9-ANM-116- SUMMARY: The Food and Drug written/paper submission and in the [email protected]. Before using Administration (FDA or we) is manner detailed (see ‘‘Written/Paper any approved AMOC, notify your appropriate announcing the establishment of a Submissions’’ and ‘‘Instructions’’). principal inspector, or lacking a principal docket to receive information and inspector, the manager of the local flight comments on the use of the term Written/Paper Submissions standards district office/certificate holding ‘‘natural’’ in the labeling of human food Submit written/paper submissions as district office. The AMOC approval letter products, including foods that are follows: must specifically reference this AD. • (2) Contacting the Manufacturer: For any genetically engineered or contain Mail/Hand delivery/Courier (for requirement in this AD to obtain corrective ingredients produced through the use of written/paper submissions): Division of actions from a manufacturer, the action must genetic engineering. We are taking this Dockets Management (HFA–305), Food be accomplished using a method approved action in part because we received three and Drug Administration, 5630 Fishers by the Manager, International Branch, ANM– citizen petitions asking that we define Lane, Rm. 1061, Rockville, MD 20852.

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• For written/paper comments FOR FURTHER INFORMATION CONTACT: We also noted that the term ‘‘natural’’ submitted to the Division of Dockets Loretta Carey, Center for Food Safety is used on a variety of products to mean Management, FDA will post your and Applied Nutrition (HFS–820), Food a variety of things. Because of its comment, as well as any attachments, and Drug Administration, 5100 Paint widespread use, and the evidence that except for information submitted, Branch Pkwy., College Park, MD 20740, consumers regard many uses of this marked and identified, as confidential, 240–402–2371. term as non-informative, we said, back if submitted as detailed in in 1991, that we were considering SUPPLEMENTARY INFORMATION: ‘‘Instructions.’’ establishing a definition for this term Instructions: All submissions received I. Background (56 FR 60421 at 60466). We said that we must include Docket No. FDA–2014–N– believed that defining the term A. What has been FDA's position 1207 for ‘‘Use of the Term ‘‘Natural’’ in ‘‘natural’’ could remove some ambiguity regarding the use of the term ``natural?'' the Labeling of Human Food Products; surrounding use of the term that results Request for Information and Under section 403(a)(1) of the Federal in misleading claims (56 FR 60421 at Comments.’’ Received comments will be Food, Drug, and Cosmetic Act (the 60466). placed in the docket and, except for FD&C Act) (21 U.S.C. 343(a)(1)), a food We invited comments on several those submitted as ‘‘Confidential shall be deemed to be misbranded if its questions, including whether we should Submissions,’’ publicly viewable at labeling is false or misleading in any establish a meaningful definition for http://www.regulations.gov or at the particular. Section 201(f) of the FD&C ‘‘natural’’ so that this term would have Division of Dockets Management Act (21 U.S.C. 321(f)) defines the term a common consumer understanding, between 9 a.m. and 4 p.m., Monday ‘‘food’’ to mean articles used for food or and whether it should prohibit through Friday. ‘‘natural’’ claims entirely on the grounds • drink for man or other animals, chewing Confidential SubmissionsÐTo gum, and articles used for components that they are false or misleading (56 FR submit a comment with confidential of any such article. Subject to certain 60421 at 60467). In the preamble to the information that you do not wish to be exceptions, dietary supplements are subsequent final rule, we noted that we made publicly available, submit your generally considered to be foods under had received many comments on the comments only as a written/paper the FD&C Act (21 U.S.C. 321(ff)). subject, but that ‘‘[n]one of the submission. You should submit two Section 201(n) of the FD&C Act (21 comments provided FDA with a specific copies total. One copy will include the U.S.C. 321(n)) provides that labeling is direction to follow for developing a information you claim to be confidential misleading if, among other things, it definition regarding the use of the term with a heading or cover note that states fails to reveal facts that are material in ‘natural.’ ’’ (58 FR 2302 at 2407, January ‘‘THIS DOCUMENT CONTAINS light of representations made or 6, 1993). We stated that at that time we CONFIDENTIAL INFORMATION.’’ The suggested in the labeling, or material would not be engaging in rulemaking to Agency will review this copy, including with respect to consequences that may define ‘‘natural,’’ but that we would the claimed confidential information, in result from the use of the food to which maintain our policy not to restrict the its consideration of comments. The the labeling relates under the conditions use of the term ‘‘natural’’ except for second copy, which will have the of use prescribed in the labeling, or added color, synthetic substances, and claimed confidential information under such conditions of use as are flavors. We further stated that we would redacted/blacked out, will be available customary or usual. Section 201(m) of maintain our policy to interpret the term for public viewing and posted on ‘‘natural’’ as meaning that ‘‘nothing the FD&C Act defines ‘‘labeling’’ as all http://www.regulations.gov. Submit artificial or synthetic (including all labels and other written, printed, or both copies to the Division of Dockets color additives regardless of source) has graphic matter upon any article or any Management. If you do not wish your been included in, or has been added to, of its containers or wrappers or name and contact information to be a food that would not normally be accompanying such article. made publicly available, you can expected to be in the food’’ (58 FR 2302 provide this information on the cover We have a longstanding policy for the at 2407). sheet and not in the body of your use of the term ‘‘natural’’ on the labels When we established our policy comments and you must identify this of human food. We previously concerning the use of the term information as ‘‘confidential.’’ Any considered establishing a definition for ‘‘natural,’’ as described previously in information marked as ‘‘confidential’’ the term ‘‘natural’’ when used in food this document, it was not intended to will not be disclosed except in labeling. In the preamble of a proposed address food production methods, such accordance with 21 CFR 10.20 and other rule we published in the Federal as the use of genetic engineering or applicable disclosure law. For more Register (56 FR 60421, November 27, other forms of genetic modification, the information about FDA’s posting of 1991), we stated that the word ‘‘natural’’ use of pesticides, or the use of specific comments to public dockets, see 80 FR is often used to convey that a food is animal husbandry practices, nor did it 56469, September 18, 2015, or access composed only of substances that are explicitly address food processing or the information at: http://www.fda.gov/ not manmade and is, therefore, manufacturing methods, such as regulatoryinformation/dockets/ somehow more wholesome. We also thermal technologies, pasteurization, or default.htm. said that we have not attempted to irradiation. Furthermore, we did not Docket: For access to the docket to restrict use of the term ‘‘natural’’ except consider whether the term ‘‘natural’’ read background documents or the for added color, synthetic substances, should describe any nutritional or other electronic and written/paper comments and flavors under § 101.22 (21 CFR health benefit. received, go to http:// 101.22) (56 FR 60421 at 60466). Further, www.regulations.gov and insert the we said that we have considered B. What recent events prompted FDA to docket number, found in brackets in the ‘‘natural’’ to mean that nothing artificial request comment? heading of this document, into the or synthetic (including colors regardless In a citizen petition (now filed under ‘‘Search’’ box and follow the prompts of source) is included in, or has been docket number FDA–2014–P–0312) and/or go to the Division of Dockets added to, the product that would not dated March 14, 2014, the Grocery Management, 5630 Fishers Lane, Rm. normally be expected to be there (56 FR Manufacturers Association (GMA) 1061, Rockville, MD 20852. 60421 at 60466). requests that we ‘‘issue a regulation

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authorizing statements such as ‘natural’ district courts’ referrals to FDA and example, according to the petition, on foods that are or contain foods stating that FDA has authority to issue ‘‘Sixty-six percent of consumers think derived from biotechnology’’ (see a regulation authorizing foods ‘natural’ processed food products mean Citizen Petition from the Grocery containing ingredients derived from no toxic pesticides were used, 66% Manufacturers Association to the Food biotechnology to be labeled ‘‘natural’’). think no artificial ingredients or colors and Drug Administration (‘‘Petition’’) at Although we declined to make a were used, 65% think no chemicals page 1). Specifically, GMA requests that determination for the courts regarding were used during processing and 64% we issue a regulation ‘‘that it is neither whether and under what circumstances think no GMOs were used’’ (see Petition false nor misleading to label a food as food products containing ingredients at page 2). Also, according to the ‘natural’ or similar terms solely because produced using genetic engineering may petition, when consumers were asked the food is or contains a food derived or may not be labeled ‘‘natural,’’ we what they thought the term natural from biotechnology’’ (Petition at page 3). informed the courts that, if we were should mean, ‘‘87% believe no artificial GMA requests that FDA issue a inclined to revoke, amend, or revise our materials or chemicals should be used regulation establishing that the term(s) policy regarding use of the term during processing, 86% believe no ‘‘natural,’’ ‘‘all natural,’’ ‘‘100% ‘‘natural,’’ we would likely engage in a artificial ingredients or colors should be natural,’’ ‘‘from nature,’’ ‘‘naturally public process and work with other used, 86% believe no toxic pesticides grown,’’ or ‘‘naturally sourced’’ may Federal entities, such as the U.S. should be used, and 85% believe no accompany the common or usual name Department of Agriculture (USDA) (see GMOs should be used’’ (see Petition at of a food, or the name of a standardized Courts Letter at page 2). We issued a page 2). food, or appear elsewhere on the label similar response to a Federal district Consumers Union asserts that it has or in labeling of such foods, and that court, in 2010, when it asked whether observed a push from industry to allow such a food shall not be deemed to be high fructose corn syrup qualified as a the use of the term ‘‘natural’’ on food misbranded solely because the food ‘‘natural’’ ingredient. See Letter from labels that do not represent what their contains a food derived from Michael M. Landa, Acting Director, survey indicates consumers believe the biotechnology (Petition at page 3). Center for Food Safety and Applied term natural should mean (see Petition Alternatively, GMA requests that we Nutrition, to the Honorable Jerome B. at page 3). Consumers Union further amend § 101.4 (Food; designation of Simandle, U.S. District Court Judge, states that ‘‘consumers demand far more ingredients.) by adding a new paragraph District of New Jersey (September 16, from the ‘natural’ label, in line with stating that: A food bearing a claim that 2010). what they expect from the ‘organic’ its ingredient or ingredients are On October 3, 2014, we received a label’’ such that the term ‘‘natural’’ in ‘‘natural,’’ ‘‘all natural,’’ ‘‘100% citizen petition from Consumers Union food labeling ‘‘should be banned natural,’’ ‘‘from nature,’’ ‘‘naturally (see FDA–2014–P–1650) requesting that altogether’’ (see Petition at page 3). grown,’’ or ‘‘naturally sourced’’ shall not we prohibit use of the term ‘‘natural’’ on We also have received two other be deemed misbranded solely because food labels altogether. The Consumers citizen petitions concerning the use of the ingredient or ingredients are derived Union citizen petition asserts that there from biotechnology (Petition at page 3, is a ‘‘drastic’’ difference between FDA’s the term ‘‘natural’’ on food labels. One footnote 2). The GMA citizen petition current policy for use of the term citizen petition, from the Sara Lee Corp. also describes, in the petitioner’s view, ‘‘natural’’ and ‘‘what people think the (see FDA–2007–P–0007), asks that we the legal and factual basis for a ‘natural’ label should mean’’ (Citizen work with USDA’s Food Safety regulation and why rulemaking is in the Petition from the Consumers Union to Inspection Service (FSIS) to devise and public interest (see Petition at pages 5 FDA (‘‘Petition’’) at page 1). More adopt a unified policy, as a statement of through 15). specifically, Consumers Union requests policy, governing use of the term The GMA citizen petition follows that FDA issue the following ‘‘natural’’ such that use of the term earlier communications to FDA interpretive rule prohibiting use of the ‘‘natural’’ may be used to describe a regarding the use of the term ‘‘natural’’ term ‘‘natural’’ in food labeling: ‘‘The food or food ingredient that does not on the labels of food containing term `natural,' or any derivation of the contain any artificial flavor or flavoring, ingredients produced using genetic term, such as `naturally grown,' coloring ingredient (regardless of engineering. For example, three Federal `naturally sourced' or `from nature,' is source), or any artificial or synthetic district courts referred to us, for an vague and misleading and should not be ingredient that is included within or not administrative determination under 21 used’’ [emphasis in the original] (see normally expected in the product (see CFR 10.25(c), the question of whether Petition at page 3). Petition at page 2). Further, the Sara Lee food products containing ingredients The Consumers Union citizen petition Corp. asserts that the degree of produced using bioengineering may be relies on Consumer Reports National processing necessary to produce the labeled as ‘‘Natural,’’ ‘‘All Natural,’’ Research Center survey data to support food or food ingredient should be and/or ‘‘100% Natural.’’ See Letter from its position that consumers are misled considered in determining consumer Leslie Kux, Assistant Commissioner for by the term ‘‘natural.’’ 1 According to expectation. Policy, to the Honorable Yvonne the petition, the survey suggests that Another citizen petition, submitted by Gonzales Rogers, U.S. District Court, nearly two-thirds of U.S. consumers are The Sugar Association (see FDA–2006– Northern District of California, the currently misled by use of the term P–0206), asks that we engage in Honorable Jeffrey S. White, U.S. District ‘‘natural’’ on certain food labels and rulemaking to define the term ‘‘natural’’ Court, Northern District of California, nearly 90 percent expect it to ‘‘mean with respect to food and beverages. The and the Honorable Kevin McNulty, U.S. much more than it does’’ (see Petition citizen petition asks for consistency District Court, District of New Jersey at page 2 and pages 4 through 9). For across Federal Agencies with respect to (January 6, 2014) (‘‘Courts Letter’’); see such definition and requests that we also Letter from Karin F. R. Moore, Vice 1 Consumer Reports National Research Center define the term ‘‘natural’’ based on President and General Counsel, Grocery Survey Research Report re Citizen Petition from FSIS’s definition in its Food Standards Consumers Union, FDA–2014–P–1650–0002. Manufacturers Association, to Elizabeth According to Consumers Union, the survey was a and Labeling Policy Book for ‘‘natural’’ H. Dickinson, Esq., Chief Counsel, FDA nationally representative phone survey of over 1000 claims for meat products and poultry (December 5, 2013) (mentioning the adult U.S. residents. products (see Petition at page 1).

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The definition of ‘‘natural claims’’ in elsewhere on the principal display compare the term ‘‘natural’’ with the FSIS’s Food Standards and Labeling panel, an asterisk should be used to tie ‘‘organic’’ (the USDA Agricultural Policy Book, in relevant part, states that the explanation to the claim. Marketing Service administers the the term ‘‘natural’’ may be used on Moreover, the FSIS Food Standards National Organic Program, which labeling for meat products and poultry and Labeling Policy Book specifies that enforces laws and regulations regarding products if the applicant for such FSIS’s decision to approve or deny use certified organic foods). We are labeling demonstrates that: (1) The of a natural claim may be affected by the interested in data and other information product does not contain any artificial specific context in which the claim is about consumers’ understanding of flavor or flavoring, coloring ingredient, made. The FSIS Food Standards and foods labeled ‘‘natural’’ versus chemical preservative (as defined in Labeling Policy Book contains an ‘‘organic.’’ Is the term ‘‘natural’’ on food § 101.22), or any other artificial or example showing that claims indicating labels perceived by consumers the same synthetic ingredient and (2) the product that a product is natural food, e.g., way as ‘‘organic?’’ Or is ‘‘natural’’ and its ingredients are not more than ‘‘Natural chili’’ or ‘‘chili—a natural perceived by consumers to be ‘‘better’’ minimally processed. The FSIS Food product’’ would be unacceptable for a (or not as good as) ‘‘organic?’’ Please Standards and Labeling Policy Book product containing beet powder, which provide consumer research or other further explains that minimal artificially colors the finished product, evidence to support your comment. • processing may include traditional but states that a claim such as ‘‘all If we were to revise our policy processes used to make food edible or natural ingredients’’ might be an regarding the use of the term ‘‘natural’’ to preserve it or to make it safe for acceptable claim for such a product (see or engage in rulemaking to establish a human consumption, e.g., smoking, Food Standards and Labeling Policy regulatory definition for ‘‘natural,’’ roasting, freezing, drying, and Book, FSIS, at 116, August 2005). should certain production practices fermenting or physical processes which Both the Sara Lee Corp. and The used in agriculture, for example, genetic do not fundamentally alter the raw Sugar Association citizen petitions also engineering, mutagenesis, hybridization, product and/or which only separate a state that defining or establishing a the use of pesticides, or animal whole, intact food into component policy on ‘‘natural’’ would provide husbandry practices, be a factor in consistency for consumers and food defining ‘‘natural?’’ Why or why not? parts, e.g., grinding meat, separating • eggs into albumen and yolk, and manufacturers. We are interested in any data or pressing fruits to produce juices. The other information to suggest that II. Request for Comments and consumers associate, confuse, or FSIS Food Standards and Labeling Information Policy Book also states that relatively compare the term ‘‘natural’’ with ‘‘healthy.’’ We have a regulation that severe processes, such as solvent We invite interested persons to defines the term ‘‘healthy’’ when used extraction, acid hydrolysis, and comment on the use of the term as an implied nutrient content claim chemical bleaching, would be ‘‘natural’’ in the labeling of human food with specific conditions related to the considered more than minimal products, including when, if ever, the food’s nutrient profile that must be met processing, so the use of a natural flavor use of the term is false or misleading in order to use the term on the label or or flavoring in compliance with § 101.22 (FDA–2014–N–1207). We are in labeling of a food (see § 101.65(d)). that has undergone more than minimal particularly interested in responses to We are interested in data and other processing would place a product in the following questions: • information about consumers’ which it is used outside the scope of the Should we define, through rulemaking, the term ‘‘natural?’’ Why or understanding of foods labeled FSIS guidelines. However, the FSIS ‘‘natural’’ versus ‘‘healthy.’’ Is the term Food Standards and Labeling Policy why not? • Should we prohibit the term ‘‘natural’’ on food labels perceived by Book states that the presence of an ‘‘natural’’ in food labeling? Why or why consumers the same way as ‘‘healthy?’’ ingredient that has been more than not? Or is ‘‘natural’’ perceived by consumers minimally processed would not • If we define the term ‘‘natural,’’ to be ‘‘better’’ (or not as good as) necessarily preclude the product from what types of food should be allowed to ‘‘healthy?’’ Do consumers view being promoted as natural, and that bear the term ‘‘natural?’’ ‘‘natural’’ and ‘‘healthy’’ as synonymous exceptions may be granted on a case-by- • Should only raw agricultural terms? Please provide consumer case basis if it can be demonstrated that commodities be able to bear the term? research or other evidence to support the use of such an ingredient would not Why or why not? Section 201(r) of the your comment. significantly change the character of the FD&C Act defines the term ‘‘raw • Should manufacturing processes be product to the point that it could no agricultural commodity’’ as ‘‘any food in considered in determining when a food longer be considered a natural product. its raw or natural state, including all can bear the term ‘‘natural?’’ For In such cases, the natural claim is to be fruits that are washed, colored, or example, should food manufacturing qualified to clearly and conspicuously otherwise treated in their unpeeled processes, such as drying, salting, identify the ingredient, e.g., ‘‘all natural natural form prior to marketing.’’ marinating, curing, freezing, canning, or all natural ingredients except • Should only single ingredient fermenting, pasteurizing, irradiating, or dextrose, modified food starch, etc.’’ foods, e.g., bottled water or bagged hydrolysis, be a factor in defining The FSIS Food Standards and spinach, be able to bear the term? Why ‘‘natural?’’ Labeling Policy Book also states that all or why not? • Should the term ‘‘natural’’ only products claiming to be natural or a • If multi-ingredient foods should be apply to ‘‘unprocessed’’ foods? If so, natural food should be accompanied by able to bear the term, what type(s) of how should ‘‘unprocessed’’ and a brief statement that explains what is ingredients would disqualify the food ‘‘processed’’ be defined for purposes of meant by the term natural, i.e., that the from bearing the term? Please explain bearing the claim? If the term natural product is a natural food because it why such disqualification would be should include some processing contains no artificial ingredients and is warranted. methods, what should those methods only minimally processed. The • We are interested in any data or be? In making determinations related to statement is to appear directly beneath other information to suggest that processing, should one look at the or beside all natural claims or, if consumers associate, confuse, or process to make a single ingredient of a

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food, or does one evaluate the process or with the applicable licensing psychosocial limitations as determined done to the formulated finished food authority concerning abuse, neglect, through a statement of needed care, are product (or both)? mistreatment of individuals or not able to live independently and have • The current policy regarding use of misappropriation of property. VA also no suitable family or significant others the term ‘‘natural’’ hinges in part on the proposes to require CRCs to develop and to provide the needed supervision and presence or absence of synthetic implement written policies and supportive care. Examples of CRC’s ingredients. For example, under the procedures that prohibit mistreatment, enriched housing may include, but are current policy synthetic forms of neglect, and abuse of residents and not limited to: Medical Foster Homes, Vitamin D would not be used in a food misappropriation of resident property. Assisted Living Homes, Group Living claiming to be ‘‘natural,’’ whereas The proposed rule would also require Homes, Family Care Homes, and naturally sourced Vitamin D (e.g., from CRCs to report and investigate any psychiatric CRC Homes. CRC care salmon or egg yolks) could be. Should allegations of abuse or mistreatment. In consists of room, board, assistance with the manner in which an ingredient is addition, the proposed rule would activities of daily living (ADL), and produced or sourced affect whether a require the CRC to screen and monitor supervision as required on an food containing that ingredient may be individuals who are not CRC residents, individual basis. The size of a CRC can labeled as ‘‘natural?’’ Please explain but have direct access to a veteran living vary from one bed to several hundred. your reasoning. in a CRC. The revisions would improve VA maintains a list of approved CRCs. • What can be done to ensure that the safety and help prevent the neglect The cost of community residential care consumers have a consistent and or abuse of veteran residents in CRCs. In is financed by the veteran’s own accurate understanding of the term addition, we propose to amend the rule resources. A veteran may elect to reside ‘‘natural’’ in food labeling to ensure that regarding the maximum number of beds in any CRC he or she wants; however, it is not misleading? allowed in a resident’s bedroom. VA will only recommend CRCs that • What are the public health benefits, DATES: Comment Date: Comments must apply for approval and meet VA’s if any, of defining the term ‘‘natural’’ in be received by VA on or before January standards. Once approved, the CRC is food labeling? Please provide 11, 2016. placed on VA’s referral list and VA supporting data and other information ADDRESSES: Written comments may be refers veterans for whom CRC care is an to support your comment. submitted through www.regulations.gov; option to the VA-approved CRCs when • Should ‘‘natural’’ have some by mail or hand-delivery to the Director, those veterans are determining where nutritional benefit associated with it? If Regulation Policy and Management they would like to live. VA may provide so, what should be the benefit? What (02REG), Department of Veterans care to a veteran at the CRC when it is nutrients should be considered? What Affairs, 810 Vermont Ave. NW., Room medically appropriate to provide such data are available to support the 1068, Washington, DC 20420; or by fax home-based care. The provision of such association between ‘‘natural’’ and a to (202) 273–9026. Comments should home-based care is not contingent upon given nutritional benefit, and/or indicate that they are submitted in VA approval of a CRC; a veteran’s right between ‘‘natural’’ and certain response to ‘‘RIN 2900–AP06—Ensuring to such care exists independent of the nutrients? a Safe Environment for Community veteran’s residence in a CRC. Employees • How might we determine whether Residential Care Residents.’’ Copies of of the CRC are not VA employees, and foods labeled ‘‘natural’’ comply with comments received will be available for no employment relationship exists any criteria for bearing the claim? public inspection in the Office of between employees of the CRC and VA. To become approved, a CRC must Dated: November 6, 2015. Regulation Policy and Management, Room 1068, between the hours of 8:00 meet the specified criteria in 38 CFR Leslie Kux, a.m. and 4:30 p.m., Monday through 17.63, which sets forth standards Associate Commissioner for Policy. Friday (except holidays). Please call relating to the physical integrity of the [FR Doc. 2015–28779 Filed 11–10–15; 8:45 am] (202) 461–4902 for an appointment. facility, the health care provided at the BILLING CODE 4164–01–P (This is not a toll-free number.) In CRC, the standard of living therein, addition, during the comment period, costs charged directly to veteran comments may be viewed online residents of the CRC, and other criteria DEPARTMENT OF VETERANS through the Federal Docket Management for approval. AFFAIRS System (FDMS) at http:// VA has authority under 38 U.S.C. www.regulations.gov. 1730(b)(2) to establish criteria for 38 CFR Part 17 approval of a CRC that will ensure the FOR FURTHER INFORMATION CONTACT: Dr. health, safety and welfare of veterans RIN 2900–AP06 Richard Allman, Chief Consultant, residing in that facility. Current Geriatrics and Extended Care Services § 17.63(j) requires CRCs to maintain Ensuring a Safe Environment for (10P4G), Veterans Health Community Residential Care Residents sufficient, qualified staff on duty who Administration, Department of Veterans are available to care for residents and AGENCY: Department of Veterans Affairs. Affairs, 810 Vermont Ave. NW., ensure the health and safety of each Washington, DC 20420, (202) 461–6750. ACTION: Proposed rule. resident. The CRC provider and staff (This is not a toll-free number.) must have adequate education, training, SUMMARY: This document proposes to SUPPLEMENTARY INFORMATION: VA is or experience to maintain the facility. amend the Department of Veterans authorized under 38 U.S.C. 1730 to However, VA believes that other issues Affairs (VA) regulations governing the assist veterans by referring them for are also important in determining approval of a community residential placement, and aiding veterans in whether a veteran residing in a CRC is care facility (CRC). We would prohibit obtaining placement, in CRCs. A CRC is receiving an appropriate standard of a CRC from employing an individual a form of enriched housing that care. A veteran residing in a CRC is who has been convicted in a court of provides health care supervision to unable to live independently and has no law of certain listed crimes against a eligible veterans not in need of hospital suitable family or significant others to person or property, or has had a finding or nursing home care, but who, because provide the needed supervision and entered into an applicable state registry of medical, psychiatric and/or supportive care, and the CRC serves as

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that veteran’s primary place of use the term ‘‘residential care facility’’ residents. State Veterans Homes provide residence. VA believes that the CRC and it is unclear whether a VA- resident services through employees of should be an environment in which the approved CRC would be covered. the state home, many of which are veteran is physically safe and where the Several state licensing laws or professionals licensed by the state. veteran is not at risk of damage, theft, regulations do not address hiring Nonetheless, VA believes it is or loss of personal property. To ensure requirements. Some do not have any appropriate to look to how resident the safety and welfare of veterans general screening requirements for safety and welfare is addressed in the residing in CRCs, VA proposes to individuals assigned to duties caring for State Veterans Homes program as a establish standards that will require the elderly or disabled. In those states guide on how to proceed in the CRC CRCs to investigate individuals in CRCs that do have screening requirements, the program. who have direct access to veteran level of screening varies from criminal We propose to amend § 17.63 by residents and/or veteran resident history checks at the county or state adding a new paragraph (j)(3) which property. level only, to both state and federal- would require the CRC to develop and VA considered several approaches to level checks. implement written policies and address the issue of the background and While state laws vary on the procedures that prohibit mistreatment, behavior of individuals in CRCs. For requirement for background screenings neglect, and abuse of residents and example, on the national level, the on individuals working with the elderly misappropriation of resident property. Patient Protection and Affordable Care or disabled, all states maintain a long- This would ensure that each facility has Act, Public Law 111–148, established a term care ombudsman program charged a policy in place to address these issues. state grant program for conducting with investigating reports of elder In addition, it would serve to inform federal and state criminal background abuse. In addition, all states maintain both employees and CRC residents of checks on direct patient access registries for licensed health care the prohibited practices and inform CRC employees of long-term care facilities professionals such as nurses and nurse residents about procedures for reporting and providers that accept Medicare and aides to track reports of patient abuse or alleged mistreatment, neglect, and abuse Medicaid patients (42 U.S.C. 1320a–7l). neglect. However, many individuals of residents and misappropriation of However, not all states participate and employed in a VA approved CRC are not resident property. it is applicable to only long-term care licensed health care professionals and Proposed paragraph (j)(3)(i)(A)(1) facilities. A survey of approved CRCs states do not maintain any type of would prohibit the CRC from employing reflects that only a small percentage of registry that would capture information an individual who has been convicted those facilities are approved to accept pertaining to all the types of CRC by a court of law of abusing, neglecting, Medicare or Medicaid patients. Another employees. or mistreating individuals. VA Medicare statute, 42 U.S.C. 1320a–7, Due to these variations, we do not published a similar rule at § 51.90(c) for excludes an individual from believe we can rely on state law to State Veterans Homes. That rule has participating in any federal health care ensure that veterans can trust and rely been in place since February 7, 2000, program if that individual has been on VA-recommended CRCs to provide a and we believe it has been effective in convicted of certain listed crimes. certain, uniform minimum level of ensuring the safety of veterans residing However, a person working in a CRC, or safety and care. VA believes that all in those facilities. We believe a similar an individual with direct resident veterans residing in a CRC should have standard should be applied to access, would not be considered a the same level of assurance that a CRC employment in CRCs. The terms participant in a federal health care staff member or other covered ‘‘abuse’’ and ‘‘neglect’’ are defined in program. individual does not have a criminal § 51.90(b), and would have the same Employees, contractors and history, regardless of where that facility meaning here. volunteers working in VA-operated is located. Proposed paragraph (j)(3)(i)(A)(2) facilities, such as community living In considering possible national would prohibit the CRC from employing centers or nursing homes, must undergo standards, we reviewed existing individuals who have had a finding a background screening as required by regulations governing other VA entered into an applicable State registry Office of Personnel Management (OPM) programs. State Veterans Homes are or with the applicable licensing regulations at 5 CFR parts 731 and 736. owned, operated, and managed by state authority concerning abuse, neglect, If the employee or contractor has access governments and provide nursing home, mistreatment of individuals or to federally maintained records or domiciliary, or adult day care to eligible misappropriation of property. Examples databases, the level of scrutiny is veterans. Regulations governing State of applicable state registries include, but greater. CRC staff and others with direct Veterans Homes are found at 38 CFR are not limited to, state sex offender resident access are not federal parts 51 through 59. We believe that the registries and registries of criminal employees, contractors or volunteers, State Veterans Home program is offenders which are maintained by some and do not have access to VA records meaningfully similar to the community states. Typical licensing authorities or databases. Therefore, OPM’s federal residential care program because it include, but are not limited to, state background screening requirements are serves a similar veteran population and boards or agencies that license or certify inapplicable. provides similar services; however, Registered Nurses (RN), Licensed We reviewed state requirements for there are two important differences. A Practical Nurses (LPN), Certified licensing residential care facilities as State Veterans Homes is owned, Nursing Assistants (CNA), nursing aides well as state screening requirements for operated and managed by the state or medication aides. State laws and employment to work with the elderly or government while a CRC is a privately regulations typically require employers disabled. The states vary in how these owned entity. States exercise a layer of to report abuse, neglect, mistreatment of issues are addressed. Some require control over State Veterans Homes that individuals or misappropriation of licensing only for facilities that have a is not present in CRCs. In addition, property alleged to have been minimum number of beds (i.e., five or persons living in some CRCs who are committed by certain licensed health more beds). Many of the VA-approved not obtaining services from that facility care professionals. These reports are CRCs have one to three resident beds. regularly interact with CRC residents made part of the relevant State registry, Some state laws and regulations do not and sometimes provide services to and the registry may contain

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information on incidents that were not corrective action is taken to prevent definition of ‘‘person with direct forwarded to law enforcement for further violations. resident access’’ because we believe that prosecution. VA believes that such We propose in paragraph (j)(3)(i)(D) it is inappropriate to consider the information would be relevant to the that employees accused of alleged background of patients. issue of whether a particular individual violations involving mistreatment, In proposed paragraph (j)(5), we should have direct access to a veteran neglect, or abuse or misappropriation of would define the term ‘‘convicted’’ for residing in a CRC. resident property, must be removed purposes of this proposed rule. An The CRC would be required by from all duties requiring direct veteran employee would be considered proposed paragraph (j)(3)(i)(B) to resident contact during the pendency of ‘‘convicted’’ of a criminal offense when immediately, meaning no more than 24 the facility’s investigation. VA believes a judgment of conviction has been hours after the provider becomes aware that removing such employee from entered against the individual by a of the alleged violation, report all duties involving direct resident contact Federal, State, or local court, regardless alleged violations involving until the facility completes its of whether there is an appeal pending mistreatment, neglect, or abuse, investigation is a prudent step to ensure or whether the judgment of conviction including injuries of unknown source, veteran resident safety and to provide or other record relating to criminal and misappropriation of resident assurance to veteran residents that the conduct has been expunged. It would property to the approving official. In accused employee would not be allowed also include a finding of guilt against proposed paragraph (j)(3)(i)(B)(1)–(6), direct access to them until the alleged the individual by a Federal, State, or we would set out the minimum incident is investigated and any local court. The term ‘‘convicted’’ information that must be contained in a necessary corrective steps are taken, if would also include a plea of guilty or report of an alleged violation. The intent needed. nolo contendere by the individual has Proposed paragraph (j)(4) would of the proposed rule is to place the been accepted by a Federal, State, or define the three classes of individuals approving official on notice of any local court. Finally, the term would also considered to be employees of the CRC alleged violation so that appropriate encompass participation in a first for purposes of this proposed rule. follow-up measures can be initiated. offender, deferred adjudication, or other Proposed paragraph (j)(4)(i) would Follow-up measures may include arrangement or program where establish that non-VA health care contacting veteran residents, ensuring judgment of conviction has been providers at CRCs would be considered any affected veteran resident receives a withheld. The proposed definition employees. Non-VA health care covers the spectrum of outcomes medical evaluation from a VA health providers may have frequent contact possible when a court of competent care provider, or conduct necessary with veteran residents, and are not jurisdiction finds that a defendant has interim monitoring as provided for in subject to direct VA control or committed a criminal act. It recognizes § 17.65(a). Proposed paragraph management. In addition, proposed that the act that resulted in the (j)(3)(i)(C) would require the CRC to paragraph (j)(4)(ii) would establish that conviction, as well as the conviction have evidence that all alleged violations the term ‘‘employee’’ would include itself, is relevant to the issue of safety are documented and thoroughly CRC staff who are not health care and health of veterans residing in CRCs. investigated. The facility would be providers. CRCs employ a variety of Proposed paragraph (j)(6) would required to prevent further potential personnel that may include, for provide that, for purposes of proposed abuse while the investigation is in example, contractors or janitorial staff. paragraph (j)(3), the terms ‘‘abuse’’ and progress. The proposed rule would These individuals have access to ‘‘neglect’’ would have the same meaning require that the results of all veteran residents, and some may be in set forth in 38 CFR 51.90(b). That investigations be reported to the a unique position to take advantage of paragraph describes residents’ right to approving official within 5 working veterans. be free from mental, physical, sexual, days of the incident, and to other Proposed paragraph (j)(4)(iii) would and verbal abuse or neglect, corporal officials in accordance with State law, include persons with direct resident punishment, and involuntary seclusion. and that appropriate corrective action be access in the definition of ‘‘employee.’’ Mental abuse, physical abuse, and taken if the alleged violation is verified. The term ‘‘person with direct resident sexual abuse are also further defined. The proposed requirements in access’’ would mean an individual The proposed rule would be enforced paragraphs (j)(3)(i)(B) and (C) are living in the facility who is not through the normal VA inspection and consistent with those already in effect receiving services from the facility, who approval process established in § 17.65. for State Veterans Homes under may have access to the resident or the This section states that VA may approve § 51.90(c). resident’s property, or may have one-on- a CRC meeting all of the standards in VA currently receives reports of one contact with the resident. This § 17.63 based on the report of a VA alleged mistreatment, neglect, or abuse, could include relatives of live-in staff inspection and any findings of including injuries of unknown source, members. These individuals with direct necessary interim monitoring of the and misappropriation of resident resident access are most commonly facility. CRCs are inspected by VA at property on an ad hoc basis. The found in medical foster homes, which least every 12 months, and an approval proposed rule would formalize a are typically small CRCs located in a is valid for a 12-month period. A CRC reporting requirement and would ensure family home, with no more than three may gain provisional approval if that that VA is notified of any such consumer residents that are run by facility does not meet one or more of the allegation so that appropriate steps can certain members of a family, while other standards in § 17.63, provided the be taken to ensure the safety and health family members are not employed by deficiencies do not jeopardize the health of veterans residing in the CRC. The the CRC but continue to live in the or safety of residents, and the facility requirement that the investigation be home. They do not provide care or and VA agree to a plan for correcting the completed within 5 working days and services to veteran residents, but may deficiencies in a specified amount of reported to both VA and other officials have regular contact with, or access to, time. in accordance with State law would veteran residents and their property. We If the approving official determines ensure that the investigation is do not include fellow residents who are that a CRC does not comply with all of completed in a timely manner, and that receiving services from the CRC in the the standards in § 17.63, the facility is

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provided notice of the discrepancy and reflecting compliance with these assigns a control number for each an opportunity for a hearing. Approval standards, and would ensure that the collection of information it approves. of a CRC may be revoked following a approving official may access these VA may not conduct or sponsor, and a hearing as provided for in § 17.71. When records upon request. Current paragraph person is not required to respond to, a revocation occurs, VA ceases referring (i)(2)(i) already requires a CRC to collection of information unless it veterans to the CRC and notifies any maintain records regarding emergency displays a currently valid OMB control veteran residing in that facility of the notification procedures. This proposal number. Proposed § 17.63(i) and (j) revocation. Although this proposed rule would consolidate this with other would require a collection of would not change the process of recordkeeping requirements that are not information under the Paperwork inspection, approval, or revocation of resident-specific. Reduction Act of 1995. If OMB does not approval of CRCs established in current In addition, we propose to amend approve the collection of information as 38 CFR 17.61 through 17.72, we have § 17.63(e)(1), regarding the maximum requested, VA will immediately remove provided the above discussion to show number of beds allowed in a resident’s the provisions containing a collection of as a practical matter how CRCs would bedroom. Current standards provide information or take such other action as be affected by this proposed rule. The that resident bedrooms must contain no is directed by OMB. public is invited to comment on more than four beds, and multiresident Comments on the collection of whether the proposed new standards in rooms must provide each resident at information contained in this proposed paragraphs (e) and (j) should be least 80 square feet of living space. We rule should be submitted to the Office enforced in the same manner as every propose to limit the number of resident of Management and Budget, Attention: other standard in § 17.63. beds in newly established bedrooms in Desk Officer for the Department of The proposed changes to paragraph (j) approved facilities and facilities seeking Veterans Affairs, Office of Information require a CRC to maintain certain approval. Limiting the number of beds and Regulatory Affairs, Washington, DC records, develop and implement written to up to two per bedroom would ensure 20503, with copies sent by mail or policies and procedures prohibiting that veterans receive an appropriate hand-delivery to: Director, Office of mistreatment, neglect, abuse of amount of privacy and would Regulation Policy and Management residents, and misappropriation of appropriately minimize the impact of (02REG), Department of Veterans resident property. The approving VA visits from guests, care providers, etc., Affairs, 810 Vermont Avenue NW., official may request these records and on the veteran’s quality of life. Under Room 1068, Washington, DC 20420; or policies to ensure compliance with VA the proposed rule, facilities approved fax to (202) 273–9026; or submitted standards. Current paragraph (i) before the effective date of the rule that through http://www.regulations.gov. addresses records that must be already have bedrooms with more than Comments should indicate that they are maintained by the CRC. We propose to two beds would be able to retain that submitted in response to ‘‘RIN 2900– amend paragraph (i) to include the new configuration, but could not establish AP06—Ensuring a Safe Environment for recordkeeping requirement. We would any new bedrooms with more than two Community Residential Care also reorganize this paragraph to beds in a room. Bedrooms in facilities Residents.’’ consolidate all resident-related record approved after the effective date of the OMB is required to make a decision requirements into a single final rule, or newly established concerning the collection of information subparagraph. bedrooms in facilities approved before contained in this proposed rule between Proposed paragraph (i)(1) would state the effective date of the final rule, 30 and 60 days after publication of this that the CRC must maintain records on would not be permitted to provide more document in the Federal Register. each resident in a secure place. Resident than two beds. We would allow Therefore, a comment to OMB is best records must include a copy of all currently approved configurations assured of having its full effect if OMB signed agreements with the resident. because we do not want to negatively receives it within 30 days of Resident records may be disclosed only impact veteran residents placed in those publication. This does not affect the with the permission of the resident, or CRCs who are satisfied with their deadline for the public to comment on when required by law. This mirrors arrangement. the proposed rule. current paragraph (i)(1), (i)(2)(ii), and VA considers comments by the public (i)(3). Effect of Rulemaking on proposed collections of information In paragraph (i)(2), we would state The Code of Federal Regulations, as in— that the CRC must maintain and make proposed to be revised by this proposed • Evaluating whether the proposed available, upon request of the approving rulemaking, would represent the collections of information are necessary official, records establishing compliance exclusive legal authority on this subject. for the proper performance of VA with paragraphs (j)(1) through (3) of this No contrary rules or procedures would functions, including whether the section; written policies and procedures be authorized. All VA guidance would information will have practical utility; required under paragraph (j)(3) of this be read to conform with this proposed • Evaluating the accuracy of VA’s section; and, emergency notification rulemaking if possible or, if not estimate of the burden of the proposed procedures. A CRC is required to hire possible, such guidance would be collections of information, including the qualified and properly trained staff, per superseded by this rulemaking. validity of the methodology and current paragraphs (j)(1) and (2). VA assumptions used; verifies compliance with this standard Paperwork Reduction Act • Enhancing the quality, usefulness, during routine facility inspections. The This proposed rule includes and clarity of the information to be proposed rule would prohibit a CRC provisions constituting a collection of collected; and from employing certain individuals and information under the Paperwork • Minimizing the burden of the would require a CRC to develop and Reduction Act of 1995 (44 U.S.C. 3501– collections of information on those who implement certain policies and to 3521) that require approval by the Office are to respond, including through the investigate and document certain of Management and Budget (OMB). use of appropriate automated, allegations of abuse or neglect. The Accordingly, under 44 U.S.C. 3507(d), electronic, mechanical, or other proposed change to paragraph (i) would VA has submitted a copy of this technological collection techniques or address the need to maintain records rulemaking to OMB for review. OMB other forms of information technology,

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e.g., permitting electronic submission of violations, if any; whether additional and we believe this would more likely responses. investigation is necessary to provide than not result in an increase in the The collection of information VHA with more information about the number of reports of alleged abuse contained in 38 CFR 17.63(i) and (j) is alleged violation; and contact mistreatment, neglect, or abuse, described immediately following this information for a person who can including injuries of unknown source, paragraph. provide additional details at the or misappropriation of resident property Title: Ensuring a Safe Environment for community residential care provider, per year. However, for purposes of this Community Residential Care Residents. including a name, position, location, estimate, we will assume that a CRC Summary of collection of information: and phone number. will have one incident per year related Current § 17.63(i) addresses We would require the CRCs to to an alleged violation involving recordkeeping requirements for a CRC. document and thoroughly investigate mistreatment, neglect, or abuse, Information collection under this evidence of an alleged violation. The including injuries of unknown source, paragraph was approved by OMB under results of all investigations must be and misappropriation of resident OMB control number 2900–0491; reported to the approving official within property; or, reporting the results of an however that approval has expired. We 5 working days of the incident and to investigation into that alleged violation. propose amending paragraph (i) to other officials in accordance with State The estimated average burden for an address not only the recordkeeping law. It would also require facilities to alleged violation response is three requirements currently in that develop and implement written policies hours. paragraph, but also recordkeeping and procedures to prohibit the All approved CRCs would be required requirements under paragraphs (j)(1) mistreatment, neglect, and abuse of to develop and implement written through (3). residents and misappropriation of policies and procedures to prohibit the Paragraph (i)(1) would require the resident property. The approving VA mistreatment, neglect, and abuse of CRC to maintain records on each official may request the facility to residents and misappropriation of resident, to include a copy of all signed produce such written policies and resident property. On inspection of a agreements with the resident. We procedures. CRC, VA would require the facility to estimate the annual burden related to The most current data available to VA produce such written policies and this information collection to be one (Q4 FY2012) reflects that we have 1,293 procedures. The written policies would hour per year. approved CRCs, 493 of which are have to be developed once, although it Paragraph (i)(2) would state that the Medical Foster Homes at the 1 to 3 bed is possible that a promulgated policy CRC must maintain and make available size. The total number of staff working could require revision in the future. VA upon request of the approving official, in these facilities is 5,614. This intends to develop sample policies and records establishing compliance with aggregate number of CRC staff is boilerplate that could be adapted by a paragraphs (j)(1) and (2). These distributed in CRCs as follows: 2.5 staff CRC to meet the facility’s individual paragraphs relate to CRC staff for a 1 to 3 bed facility, 4 staff for a 4 requirements. This would decrease the requirements, and provide that the CRC to 15 bed facility, 5 staff for a 15 to 26 burden of this proposed information must have sufficient, qualified staff bed facility and 11 staff for a 26 to 100+ collection. VA estimates that the must be on duty and available to care bed facility. information collection burden on a CRC for the resident and ensure the health CRCs would be required to report utilizing a sample policy or boilerplate and safety of each resident. The CRC information under this proposed rule developed by VA would be two hours. provider and staff must have adequate when the facility: (1) Has an alleged Finally, paragraph (i)(2) would education, training, or experience to violation involving mistreatment, require the CRC to maintain a record of maintain the facility. We estimate that neglect, or abuse, including injuries of emergency notification procedures. This the annual burden related to unknown source, and misappropriation is consistent with current information collection required to of resident property; or, (2) is reporting § 17.63(i)(2)(i). Once emergency establish that the CRC has sufficient, the results of an investigation into that notification procedures are in place, qualified staff, and that the CRC alleged violation. The CRCs would also there may be instances in which the provider and staff have adequate be required to document and investigate CRC may periodically review and training and education, would be two evidence of any alleged violation. We modify the existing procedures. We hours. view the reporting, documenting, and estimate the annual burden of this Paragraph (i)(2) would also require investigating of an alleged incident and information collection to be 0.5 hours. the CRC to maintain records related to the subsequent report of the results of Description of need for information proposed paragraph (j)(3). Proposed the investigation to be one collection of and proposed use of information: VA § 17.63(j)(3) would require CRCs to information, as it focuses on one set of needs this information to ensure the immediately, meaning no more than 24 alleged facts and the facility’s health and safety of veterans placed in hours after the provider becomes aware investigation of those facts. these facilities. In CRCs, where VA of the alleged violation, report all VA does not currently require CRCs to involvement is less intensive and to alleged violations involving report to the approving official which VA does not provide any mistreatment, neglect, or abuse, allegations of resident abuse or neglect. payments or services, we believe that including injuries of unknown source, VA surveyed CRC coordinators at the information obtained under the and misappropriation of resident VA medical facilities that approve CRC proposed rule would provide necessary property to the approving official. We sponsors. Based on information from protection for veteran residents. would require that the report, at a CRC coordinators, we believe that VA Description of Likely Respondents: minimum, must include the facility currently receives fewer than one report Operators of CRCs currently listed or name, address, telephone number, and of alleged mistreatment, neglect, or that request future listing on VA’s owner; the date and time of the alleged abuse, including injuries of unknown approved CRCs referral list. violation; a summary of the alleged source, or misappropriation of resident Estimated Number of Respondents violation; the name of any public or property from CRCs in any given year. per Year: 1,293 operators of CRCs. private officials or VHA program offices This proposed rule would formalize the Estimated Frequency of Responses: that have been notified of the alleged reporting and investigation requirement Once in a 12-month period.

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Estimated Average Burden per obtain criminal background checks on within 48 hours after the rulemaking Response: 8.5 hours. CRC staff in order to be approved by document is published. Additionally, a Estimated Total Annual Reporting VA. The median number of staff in copy of the rulemaking and its impact and Recordkeeping Burden: 10,990.5 CRCs currently approved by VA is five. analysis are available on VA’s Web site hours. We estimate the cost that would be at http://www.va.gov/orpm/, by Regulatory Flexibility Act incurred for obtaining criminal following the link for VA Regulations background checks on CRC staff is $250 Published From FY 2004 to FYTD. The Secretary hereby certifies that per CRC. this proposed rule would not have a On this basis, the Secretary certifies Unfunded Mandates Reform Act significant economic impact on a that the adoption of this proposed rule substantial number of small entities as would not have a significant economic The Unfunded Mandates Reform Act they are defined in the Regulatory impact on a substantial number of small of 1995 requires, at 2 U.S.C. 1532, that Flexibility Act (5 U.S.C. 601–612). This entities as they are defined in the agencies prepare an assessment of proposed rule would be small business Regulatory Flexibility Act. Therefore, anticipated costs and benefits before neutral as it applies only to those CRCs under 5 U.S.C. 605(b), this rulemaking issuing any rule that may result in seeking inclusion on VA’s list of is exempt from the initial and final expenditures by State, local, and tribal approved CRCs. The costs associated regulatory flexibility analysis governments, in the aggregate, or by the with this proposed rule are minimal, requirements of sections 603 and 604. private sector, of $100 million or more consisting of the administrative (adjusted annually for inflation) in any requirement to develop and implement Executive Orders 12866 and 13563 one year. This proposed rule would written policies and procedures that Executive Orders 12866 and 13563 have no such effect on State, local, and prohibit mistreatment, neglect, and direct agencies to assess the costs and tribal governments, or on the private abuse of residents and misappropriation benefits of available regulatory sector. of resident property; ensure that no alternatives and, when regulation is employees are employed in necessary, to select regulatory Catalog of Federal Domestic Assistance contravention to the proposed rule; approaches that maximize net benefits The Catalog of Federal Domestic report to VA any alleged violation (including potential economic, involving mistreatment, neglect, or environmental, public health and safety Assistance program numbers and titles abuse, including injuries of unknown effects, and other advantages; affected by this document are 64.009, source, and misappropriation of distributive impacts; and equity). Veterans Medical Care Benefits; 64.010, resident property; and investigate Executive Order 13563 (Improving Veterans Nursing Home Care; and alleged resident abuse, take steps to Regulation and Regulatory Review) 64.018, Sharing Specialized Medical prevent further harm, and implement emphasizes the importance of Resources. appropriate corrective measures. quantifying both costs and benefits, Signing Authority A CRC may elect to order background reducing costs, harmonizing rules, and checks on employees from commercial promoting flexibility. Executive Order The Secretary of Veterans Affairs, or sources or local law enforcement 12866 (Regulatory Planning and designee, approved this document and agencies. The cost of an individual Review) defines a ‘‘significant authorized the undersigned to sign and background check varies dependent on regulatory action’’ requiring review by submit the document to the Office of the the vendor, but VA believes the average OMB, unless OMB waives such review, Federal Register for publication cost is $50. VA believes that 75 percent as ‘‘any regulatory action that is likely electronically as an official document of of CRCs are required to, or could obtain, to result in a rule that may: (1) Have an the Department of Veterans Affairs. criminal background checks on annual effect on the economy of $100 Robert L. Nabors II, Chief of Staff, employees through one or more existing million or more or adversely affect in a Department of Veterans Affairs, federal or state programs. This includes: material way the economy, a sector of approved this document on November (1) The state grant program the economy, productivity, competition, 5, 2015, for publication administered by the Centers for jobs, the environment, public health or Medicare and Medicaid Services (CMS) safety, or State, local, or tribal List of Subjects in 38 CFR Part 17 for conducting federal and state governments or communities; (2) Create criminal background checks on direct a serious inconsistency or otherwise Administrative practice and patient access employees of long-term interfere with an action taken or procedure, Alcohol abuse, Alcoholism, care facilities and providers (42 U.S.C. planned by another agency; (3) Claims, Day care, Dental health, Drug 1320a–7l); (2) the CMS requirement Materially alter the budgetary impact of abuse, Government contracts, Grant applicable to facilities receiving entitlements, grants, user fees, or loan programs-health, Government programs- Medicare and Medicaid funds; and (3) programs or the rights and obligations of veterans, Health care, Health facilities, various state laws or regulations recipients thereof; or (4) Raise novel Health professions, Health records, mandating criminal background legal or policy issues arising out of legal Homeless, Mental health programs, screening for employment to work with mandates, the President’s priorities, or Nursing homes, Reporting and the elderly or disabled. In addition, the principles set forth in this Executive recordkeeping requirements, Veterans. many CRCs that are currently servicing Order.’’ Dated: November 6, 2015. The economic, interagency, veterans already, voluntarily, have Jeffrey M. Martin, policies and procedures in place to budgetary, legal, and policy review the backgrounds of their implications of this proposed rule have Office Program Manager, Regulation Policy and Management, Office of the General employees and make employment been examined, and it has been Counsel, Department of Veterans Affairs. decisions consistent with this determined not to be a significant rulemaking as one way to ensure regulatory action under Executive Order For the reasons stated in the resident safety. 12866. VA’s impact analysis can be preamble, Department of Veterans The remaining 25 percent of CRCs found as a supporting document at Affairs proposes to amend 38 CFR part (324) would more likely than not opt to http://www.regulations.gov, usually 17 as follows:

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PART 17—MEDICAL abuse, including injuries of unknown pending or whether the judgment of source, and misappropriation of conviction or other record relating to ■ 1. The authority citation for part 17 resident property are reported to the criminal conduct has been expunged; continues to read as follows: approving official immediately, which (ii) When there has been a finding of Authority: 38 U.S.C. 501, and as noted in means no more than 24 hours after the guilt against the individual by a Federal, specific sections. provider becomes aware of the alleged State, or local court; violation. The report, at a minimum, (iii) When a plea of guilty or nolo ■ 2. Amend § 17.63 by revising must include— contendere by the individual has been paragraph (e)(1) and paragraph (i) and (1) The facility name, address, accepted by a Federal, State, or local adding paragraphs (j)(3) through (6) to telephone number, and owner; court; or read as follows: (2) The date and time of the alleged (iv) When the individual has entered § 17.63 Approval of community residential violation; into participation in a first offender, care facilities. (3) A summary of the alleged deferred adjudication, or other * * * * * violation; arrangement or program where (e) * * * (4) The name of any public or private judgment of conviction has been (1) Contain no more than four beds: officials or VHA program offices that withheld. (i) Facilities approved before [DATE have been notified of the alleged (6) For purposes of paragraph (j)(3) of 30 DAYS AFTER DATE OF violations, if any; this section, the terms ‘‘abuse’’ and PUBLICATION OF FINAL RULE] may (5) Whether additional investigation ‘‘neglect’’ have the same meaning set not establish any new resident is necessary to provide VHA with more forth in 38 CFR 51.90(b). bedrooms with more than two beds per information about the alleged violation; * * * * * room; and (The Office of Management and Budget has (6) Contact information for a person approved the information collection (ii) Facilities approved on or after who can provide additional details at provisions in this section under control [DATE 30 DAYS AFTER DATE OF the community residential care number 2900–XXXX.) PUBLICATION OF FINAL RULE] may provider, including a name, position, [FR Doc. 2015–28749 Filed 11–10–15; 8:45 am] not provide resident bedrooms location, and phone number. BILLING CODE 8320–01–P containing more than two beds per (C) Have evidence that all alleged room. violations of this paragraph (j) are * * * * * documented and thoroughly ENVIRONMENTAL PROTECTION (i) Records. (1) The facility must investigated, and must prevent further AGENCY maintain records on each resident in a abuse while the investigation is in secure place. Resident records must progress. The results of all 40 CFR Part 52 include a copy of all signed agreements investigations must be reported to the with the resident. Resident records may [EPA–R09–OAR–2015–0622; FRL–9936–84– approving official within 5 working Region 9] be disclosed only with the permission of days of the incident and to other the resident, or when required by law. officials in accordance with State law, Approval and Promulgation of (2) The facility must maintain and and appropriate corrective action must Implementation Plans; California; make available, upon request of the be taken if the alleged violation is California Mobile Source Regulations approving VA official, records verified. establishing compliance with (D) Remove all duties requiring direct AGENCY: Environmental Protection paragraphs (j)(1) through (3) of this resident contact with veteran residents Agency (EPA). section; written policies and procedures from any employee alleged to have ACTION: Proposed rule. required under paragraph (j)(3) of this violated this paragraph (j) during the SUMMARY: The Environmental Protection section; and, emergency notification investigation of such employee. procedures. (Approved by the Office of (4) For purposes of paragraph (j)(3) of Agency (EPA) is proposing to approve a Management and Budget under control this section, the term ‘‘employee’’ revision to the California State number 2900–XXXX.) includes a: Implementation Plan (SIP) consisting of (j) * * * (i) Non-VA health care provider at the state regulations establishing standards (3) The community residential care community residential care facility; and other requirements relating to the provider must develop and implement (ii) Staff member of the community control of emissions from new on-road written policies and procedures that residential care facility who is not a and new and in-use off-road vehicles prohibit mistreatment, neglect, and health care provider, including a and engines. The EPA is proposing to abuse of residents and misappropriation contractor; and approve these regulations because they of resident property. (iii) Person with direct resident meet the applicable requirements of the (i) The community residential care access. The term ‘‘person with direct Clean Air Act and are relied upon by provider must do all of the following: resident access’’ means an individual various California plans intended to (A) Not employ individuals who— living in the facility who is not provide for the attainment or (1) Have been convicted by a court of receiving services from the facility, who maintenance of the national ambient air law of abuse, neglect, or mistreatment of may have access to a resident or a quality standards. individuals; or resident’s property, or may have one-on- DATES: Any comments must arrive by (2) Have had a finding entered into an one contact with a resident. December 14, 2015. applicable State registry or with the (5) For purposes of paragraph (j)(3) of ADDRESSES: Submit comments, applicable licensing authority this section, an employee is considered identified by docket number [EPA–R09– concerning abuse, neglect, mistreatment ‘‘convicted’’ of a criminal offense— OAR–2015–0622], by one of the of individuals or misappropriation of (i) When a judgment of conviction has following methods: property. been entered against the individual by 1. Federal eRulemaking Portal: (B) Ensure that all alleged violations a Federal, State, or local court, www.regulations.gov. Follow the on-line involving mistreatment, neglect, or regardless of whether there is an appeal instructions.

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2. Email: [email protected]. A. How is the EPA evaluating the requirements for motor vehicle emission 3. Mail or deliver: Doris Lo (AIR–2), regulations? control, i.e., other than California’s U.S. Environmental Protection Agency B. Do the state regulations meet CAA SIP motor vehicle fuel requirements for Region IX, 75 Hawthorne Street, San evaluation criteria? motor vehicle emission control—see 1. Did the state provide adequate public Francisco, CA 94105–3901. notification and comment periods? section 211(c)(4)(B)]. For certain types Instructions: All comments will be 2. Does the state have adequate legal of mobile source emission standards, included in the public docket without authority to implement the regulations? the State of California may request a change and may be made available 3. Are the regulations enforceable as waiver (for motor vehicles) or online at www.regulations.gov, required under CAA section 110(a)(2)? authorization (for off-road engines and including any personal information 4. Do the regulations interfere with equipment) for standards relating to the provided, unless the comment includes reasonable further progress and control of emissions and accompanying Confidential Business Information (CBI) attainment or any other applicable enforcement procedures. See CAA requirement of the Act? sections 209(b) (new motor vehicles) or other information whose disclosure is 5. Will the state have adequate personnel restricted by statute. Information that and funding for the regulations? and 209(e)(2) (most categories of new you consider CBI or otherwise protected 6. EPA’s Evaluation Conclusion and in-use off-road vehicles). should be clearly identified as such and C. Proposed Action and Request for Public Over the years, the California Air should not be submitted through Comment Resources Board (CARB) has submitted www.regulations.gov or email. IV. Incorporation by Reference many requests for waiver or www.regulations.gov is an ‘‘anonymous V. Statutory and Executive Order Reviews authorization of its standards and other requirements relating to the control of access’’ system, and the EPA will not I. Background know your identity or contact emissions from new on-road and new Under the Clean Air Act (‘‘Act’’ or information unless you provide it in the and in-use off-road vehicles and CAA), the EPA establishes national body of your comment. If you send engines, and the EPA has granted many ambient air quality standards (NAAQS) email directly to the EPA, your email such requests. For example, the EPA has to protect public health and welfare, address will be automatically captured granted waivers for CARB’s Low and has established such ambient and included as part of the public Emission Vehicle (LEV III) criteria standards for a number of pervasive air comment. If the EPA cannot read your pollutant standards for light- and pollutants including ozone, carbon comment due to technical difficulties medium duty vehicles, and has monoxide, nitrogen dioxide, sulfur and cannot contact you for clarification, authorized emissions standards for such dioxide, lead and particulate matter. the EPA may not be able to consider off-road vehicle categories as Under section 110(a)(1) of the CAA, your comment. Electronic files should commercial harbor craft, and forklifts states must submit plans that provide avoid the use of special characters, any and other industrial equipment. See 78 for the implementation, maintenance, form of encryption, and be free of any FR 2112 (January 9, 2013) (advanced and enforcement of the NAAQS within defects or viruses. clean cars), 76 FR 77521 (December 13, each state. Such plans are referred to as 2011) (commercial harbor craft), and 77 Docket: Generally, documents in the state implementation plans (SIPs) and FR 20388 (April 4, 2012) (forklifts and docket for this action are available revisions to those plans are referred to other industrial equipment). electronically at www.regulations.gov as SIP revisions. Section 110(a)(2) of the Also over the years, CARB has and in hard copy at EPA Region IX, 75 CAA sets forth the content requirements submitted, and the EPA has approved, Hawthorne Street, San Francisco, for SIPs. Among the various many local or regional California air California. While all documents in the requirements, SIPs must include district rules regulating stationary docket are listed at enforceable emission limitations and source emissions as part of the www.regulations.gov, some information other control measures, means, or California SIP. See, generally, 40 CFR may be publicly available only at the techniques as may be necessary or 52.220(c). With respect to mobile hard copy location (e.g., copyrighted appropriate to meet the applicable sources in general, California has material, large maps), and some may not requirements of the CAA. CAA section submitted, and the EPA has approved, be publicly available in either location 110(a)(2)(a). certain specific state regulatory (e.g., CBI). To inspect the hard copy As a general matter, the CAA assigns programs, such the in-use, heavy-duty, materials, please schedule an mobile source regulation to the EPA diesel-fueled truck rule, various fuels appointment during normal business through title II of the Act and assigns regulations, and the vehicle inspection hours with the contact listed in the FOR stationary source regulation and SIP and maintenance program (I/M, also FURTHER INFORMATION CONTACT section. development responsibilities to the known as ‘‘smog check’’). See, e.g., 77 FOR FURTHER INFORMATION CONTACT: states through title I of the Act. In so FR 20308 (April 4, 2012) (in-use truck Doris Lo, EPA Region IX, (415) 972– doing, the CAA preempts various types and bus regulation), 75 FR 26653 (May 3959, [email protected]. of state regulation of mobile sources as 12, 2010) (revisions to California on- SUPPLEMENTARY INFORMATION: set forth in section 209(a) (preemption road reformulated gasoline and diesel Throughout this document, ‘‘we,’’ ‘‘us’’ of state emissions standards for new fuel regulations), and 75 FR 38023 (July and ‘‘our’’ refer to the EPA. motor vehicles and engines), section 1, 2010) (revisions to California motor 209(e) (preemption of state emissions vehicle I/M program). Table of Contents standards for new and in-use off-road California relies on these local, I. Background vehicles and engines),1 and section regional, and state stationary and mobile II. The State’s Submittal 211(c)(4)(A) [preemption of state fuel source regulations to meet various CAA A. What regulations did the state submit? requirements and includes the B. Are there other versions of these 1 corresponding emissions reductions in regulations? EPA regulations refer to ‘‘nonroad’’ vehicles and C. What is the purpose of the submitted engines whereas California regulations refer to ‘‘off- the various regional air quality plans road’’ vehicles and engines. These terms refer to the developed to attain and maintain the regulations? same types of vehicles and engines, and for the D. What requirements do the regulations purposes of this action, we will be using the state’s NAAQS. The EPA generally allows establish? chosen term, ‘‘off-road,’’ to refer to such vehicles California to take credit for the III. EPA’s Evaluation and Proposed Action and engines. corresponding emissions reductions

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relied upon in the various regional air rely to attain the NAAQS be included in mobile source regulations for which quality plans because, among other the SIP and thereby subject to waivers or authorizations have been reasons, the regulations are approved as enforcement by the EPA and members granted by the EPA under section 209 of part of the SIP and are thereby federally of the general public. See Committee for the CAA. The SIP revision consists of enforceable as required under CAA a Better Arvin v. EPA, 786 F.3d 1169 the regulations themselves and section 110(a)(2)(A). (9th Cir. 2015). documentation of the public process However, California also relies on In response to the decision in conducted by CARB in approving the emissions reductions from the Committee for a Better Arvin v. EPA, regulations as part of the California SIP. regulations for which the EPA has CARB submitted a SIP revision on Table 1 below presents the contents of previously granted waivers or August 14, 2015 consisting of state the SIP revision by mobile source authorizations, and historically, the EPA mobile source regulations that establish category and provides, for each such has approved regional air quality plans standards and other requirements for that take credit for emissions reductions category, a listing of the relevant the control of emissions from various sections of the California Code of from such regulations, notwithstanding new on-road and new and in-use off- the fact that California has not Regulations (CCR) that establish road vehicles and engines for which the standards and other requirements for submitted these particular regulations as EPA has issued waivers or control of emissions from new or in-use part of the California SIP. authorizations and that are relied upon vehicles or engines; the corresponding The EPA’s longstanding practice of by California regional plans to attain approving California plans that rely on and maintain the NAAQS. The EPA is date of CARB’s hearing date or emissions reductions from such ‘‘waiver proposing action today under CAA Executive Officer (EO) action through measures,’’ notwithstanding the lack of section 110(k) on CARB’s August 14, which the regulations or amendments approval as part of the SIP, was 2015 SIP revision submittal. were adopted; and the notice of decision challenged in several petitions filed in in which the EPA granted a waiver or the Ninth Circuit Court of Appeals. In II. The State’s Submittal authorization for the given set of a recent decision, the Ninth Circuit held 2 A. What regulations did the state regulations. in favor of the petitioners on this issue submit? and concluded that CAA section 110(a)(2)(A) requires that all state and On August 14, 2015, CARB submitted local control measures on which SIPs a SIP revision that included a set of state

TABLE 1—CARB SIP REVISION SUBMITTAL SUMMARY

Date of relevant CARB hearing date(s) Source category Relevant sections of California Code of Regulations or Executive Officer EPA Notice of decision action

On-Road Passenger Cars, Amendments to 13 CCR §§ 1961, 1965, and 1978 and 12/12/02, 6/22/06 70 FR 22034 (4/28/05); 75 Light-Duty Trucks, and the documents incorporated by reference (see table 2 FR 44948 (7/30/10) Medium-Duty Vehicles below), effective for state law purposes on 12/04/03; (LEV II). and amendments to 13 CCR §§ 1961, 1976, 1978, and documents incorporated by reference (see table 2 below), effective for state law purposes on 2/17/07. On-Road Passenger Cars, Adoption of 13 CCR §§ 1961.2 and 1962.2 (excluding 01/26/12, 11/15/12 78 FR 2112 (1/9/13) Light-Duty Trucks, and subsection 1962.2(g)(6)) and amendments to 13 CCR Medium-Duty Vehicles §§ 1900, 1956.8, 1960.1, 1961, 1962.1, 1962.2 (re- (LEV III) and Zero Emis- numbered to 1961.3), 1965, 1976, 1978, 2037, 2038, sion Vehicles (ZEV). 2062, 2112, 2139, 2140, 2145, 2147, and 2235 and the documents incorporated by reference (see table 2 below), effective for state law purposes on 08/07/12; amendments to 13 CCR §§ 1900, 1956.8, 1960.1, 1961, 1961.2, 1962.1, 1962.2 (excluding subsection 1962.2(g)(6)(C)), and 1976 and the documents incor- porated by reference (see table 2 below), effective for state law purposes on 12/31/12. On-Road Heavy-Duty Gaso- 13 CCR § 1956.8 and the document incorporated by ref- 12/12/02, 9/5/03 (EO) 75 FR 70237 (11/17/10) line Engines. erence (see table 2 below), effective for state law pur- poses on 12/4/03. On-Road Heavy-Duty Diesel Amendments to 13 CCR § 1956.8, and the document in- 10/25/01 70 FR 50322 (8/26/05) Engines. corporated by reference (see table 2 below), effective for state law purposes on 11/17/02. On-Road Motorcycles...... Amendments to 13 CCR §§ 1900, 1958 (excluding 12/10/98 71 FR 44027 (8/3/06) 1958(a)(1)), and 1965, and the document incorporated by reference (see table 2 below), effective for state law purposes on 11/22/99.

2 CARB’s August 14, 2015 SIP submittal included 2455(d)(3), 2455(d)(5), and 2455(d)(6)) are excluded to truck idling; (3) and 13 CCR section 2474 is to a table that lists the specific sections of the CCR from the submittal of regulations establishing be included in the submittal of regulations related included in the submittal. By email dated October standards and other requirements for the portable to spark-ignition marine engines. See email from 23, 2015, CARB identified a few typographic errors equipment registration program (PERP); (2) 13 CCR Alex Wong, CARB, to Jefferson Wehling, EPA in the table: (1) 13 CCR sections 2456(d)(3), section 2485(1)(B) (not just section 2385(1)(A)) is Region IX, dated October 23, 2015. 2456(d)(5), and 2456(d)(6) (i.e., not sections excluded from the submittal of regulations related

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TABLE 1—CARB SIP REVISION SUBMITTAL SUMMARY—Continued

Date of relevant CARB hearing date(s) Source category Relevant sections of California Code of Regulations or Executive Officer EPA Notice of decision action

On-Road Heavy-Duty En- 13 CCR §§ 1971.1 and 1971.5, effective for state law 5/28/09 77 FR 73459 (12/10/12) gines—On-Board Diag- purposes on 6/17/10. nostic System (HD OBD). On-Road Heavy Duty Vehi- 13 CCR §§ 1956.8, 2404, 2424, 2425, and 2485 (exclud- 10/20/05 77 FR 9239 (2/16/12) cles—engine or vehicle ing subsections 2485(c)(1)(A), 2485(c)(1)(B), and idle controls. 2485(c)(3)(B)), and the document incorporated by ref- erence (see table 2 below), effective for state law pur- poses on 11/15/2006. In-Use Diesel-Fueled Trans- 13 CCR § 2477, as amended, effective for state law pur- 11/18/10 78 FR 38970 (6/28/13) port Refrigeration Units. poses on 3/7/11. Commercial Harbor Craft ..... 17 CCR § 93118.5 (excluding subsection 93118.5(e)(1)), 11/15/07, 9/2/08 (EO) 76 FR 77521 (12/13/11) effective for state law purposes on 11/19/08.. Off-Road Large Spark-Igni- New LSI engine emissions standards: 13 CCR §§ 2430, 5/25/06, 3/2/07 (EO) 77 FR 20388 (4/4/12) tion (LSI) Engines. 2431, 2433, 2434, and 2438; LSI fleet requirements: 13 CCR §§ 2775, 2775.1 and 2775.2, and the docu- ments incorporated by reference (see table 2 below), effective for state law purposes on 5/12/07. Auxiliary Diesel Engines on 13 CCR § 2299.3 and 17 CCR § 93118.3, effective for 12/6/07, 10/16/08 76 FR 77515 (12/13/11) Ocean-Going Vessels. state law purposes on 01/02/09. (EO) In-Use Off-Road Diesel 13 CCR §§ 2449 (excluding subsection 2449(d)(2)) 5/25/07, 7/26/07, 12/ 78 FR 58090 (9/20/13) Fueled Fleets. 2449.1, and 2449.2, effective for state law purposes on 11/08, 1/22/09, 7/23/ 12/14/11. 09, 12/17/10 Mobile Cargo Handling 13 CCR § 2479 (excluding subsections (e)(2) and (e)(4)), 9/22/11 80 FR 26249 (5/7/15) Equipment (CHE). as amended, effective for state law purposes on 10/14/ 12. Small Off-Road Engines 13 CCR §§ 2401, 2403, 2404, 2405, 2406, 2408, 2408.1, 11/21/08 80 FR 26041 (5/6/15) (SORE). and 2409, and the document incorporated by reference (see table 2 below), effective for state law purposes on 5/5/10. Off-Road Compression—Ig- 13 CCR §§ 2420, 2421, 2423, 2424, 2425, 2425.1, 2426, 1/27/00, 12/9/04 75 FR 8056 (2/23/10) nition (CI) Engines. and 2427, and the documents incorporated by ref- erence (see table 2 below), effective for state law pur- poses on 1/6/06. In-Use Portable Diesel- 17 CCR §§ 93116 through 93116.5 (excluding subsection 2/26/04 77 FR 72846 (12/6/12) Fueled Engines (PDE). 93116.3(a)), effective for state law purposes on 3/11/05. Portable Equipment Reg- 13 CCR §§ 2451, 2452, 2453, 2455 (excluding sub- 3/27/97, 7/31/07 (EO), 77 FR 72851 (12/6/12) istration Program (PERP). sections 2455(a) and 2455(b)), 2456 (excluding sub- 12/10/98, 2/26/04, 6/ sections 2456(a), 2456(d)(3), 2456(d)(5), and 22/06, 3/22/07 2456(d)(6)), 2458, 2459, 2460, 2461, and 2462, as amended, effective for state law purposes on 9/12/07. Spark-Ignition Marine En- 13 CCR §§ 2111, 2112, Appendix A therein, 2139, 2147, 7/24/08, 6/5/09 (EO) 80 FR 26032 (5/16/15) gines and Boats (Marine 2440, 2442, 2443.1, 2443.2, 2444.1, 2444.2, 2445.1, SI). 2445.2, 2446, 2447 and 2474, and the documents in- corporated by reference (see table 2 below), effective for state law purposes on 08/16/09. Off-Highway Recreational 13 CCR §§ 2111, 2112, 2411, 2412, and 2413, and the 7/20/06 79 FR 6584 (2/4/14) Vehicles and Engines document incorporated by reference (see table 2 (OHRV). below), effective for state law purposes on 8/15/07.

The regulations submitted by CARB establish test procedures and labeling of the overall SIP revision. Table 2 lists and listed in table 1 incorporate by specifications, among other things, and the incorporated documents included in reference certain documents that CARB submitted the documents as part the SIP submittal.

TABLE 2—DOCUMENTS INCORPORATED BY REFERENCE IN CARB REGULATIONS LISTED IN TABLE 1, ABOVE, AND SUBMITTED AS PART OF SIP REVISION

On-Road Passenger Cars, Light-Duty Trucks, and Medium-Duty and Heavy-Duty Vehicles (LEV II): California Exhaust Emission Standards and Test Procedures for 2001 and Subsequent Model Passenger Cars, Light-Duty Trucks and Me- dium-Duty Vehicles, as last amended September 5, 2003. California Motor Vehicle Emission Control and Smog Index Label Specifications for 1978 through 2003 Model Year Motorcycles, Light-, Medium- and Heavy-Duty Engines and Vehicles,’’ as last amended September 5, 2003. California Smog Index Label Specifications for 2004 and Subsequent Model Passenger Cars and Light-Duty Trucks,’’ adopted September 5, 2003. California Refueling Emission Standards and Test Procedures for 2001 and Subsequent Model Motor Vehicles, as last amended Sep- tember 5, 2003.

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TABLE 2—DOCUMENTS INCORPORATED BY REFERENCE IN CARB REGULATIONS LISTED IN TABLE 1, ABOVE, AND SUBMITTED AS PART OF SIP REVISION—Continued California Evaporative Emission Standards and Test Procedures for 2001 and Subsequent Model Motor Vehicles, as amended June 22, 2006. California Refueling Emission Standards and Test Procedures for 2001 and Subsequent Model Motor Vehicles, as last amended June 22, 2006. California Exhaust Emission Standards Test Procedures for 2001 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium- Duty Vehicles, as last amended June 22, 2006. On-Road Passenger Cars, Light-Duty Trucks, and Medium-Duty and Heavy-Duty Vehicles (LEV III) and Zero Emission Vehicles (ZEV): California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engines and Vehicles, as last amended March 22, 2012. California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Otto-Cycle Engines, as last amended March 22, 2012. California Non-Methane Organic Gas Test Procedures, as last amended March 22, 2012. California 2001 through 2014 Model Criteria Pollutant Exhaust Emission Standards and Test Procedures and 2009 through 2016 Model Greenhouse Gas Exhaust Emission Standards and Test Procedures for Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, as last amended March 22, 2012, excluding GHG-related provisions. California Environmental Performance Label Specifications for 2009 and Subsequent Model Year Passenger Cars, Light-Duty Trucks, and Medium-Duty Passenger Vehicles, as last amended March 22, 2012. California Evaporative Emission Standards and Test Procedures for 2001 and Subsequent Model Motor Vehicles, as last amended March 22, 2012. California Refueling Emission Standards and Test Procedures for 2001 and Subsequent Model Motor Vehicles, as last amended March 22, 2012. Specifications for Fill Pipes and Openings of 1977 through 2014 Model Motor Vehicle Fuel Tanks, as last amended March 22, 2012. Specifications for Fill Pipes and Openings of 2015 and Subsequent Model Motor Vehicle Fuel Tanks, adopted March 22, 2012. California 2015 and Subsequent Model Criteria Pollutant Exhaust Emission Standards and Test Procedures and 2017 and Subsequent Model Greenhouse Gas Exhaust Emission Standards and Test Procedures for Passenger Cars, Light-Duty Trucks, and Medium-Duty Ve- hicles, adopted March 22, 2012, excluding GHG-related provisions. California Exhaust Emission Standards and Test Procedures for 2009 through 2017 Model Zero-Emission Vehicles and Hybrid Electric Ve- hicles, in the Passenger Car, Light-Duty Truck, and Medium-Duty Vehicle Classes, as last amended March 22, 2012, excluding GHG-re- lated provisions. California Exhaust Emission Standards and Test Procedures for 2018 and Subsequent Model Zero-Emission Vehicles and Hybrid Electric Vehicles, in the Passenger Car, Light-Duty Truck, and Medium-Duty Vehicle Classes, adopted March 22, 2012, excluding GHG-related provisions. California 2015 and Subsequent Model Criteria Pollutant Exhaust Emission Standards and Test Procedures and 2017 and Subsequent Model Greenhouse Gas Exhaust Emission Standards and Test Procedures for Passenger Cars, Light-Duty Trucks, and Medium-Duty Ve- hicles, as last amended December 6, 2012, excluding GHG-related provisions. California 2001 through 2014 Model Criteria Pollutant Exhaust Emission Standards and Test Procedures and 2009 through 2016 Model Greenhouse Gas Exhaust Emission standards and Test Procedures for Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, as last amended December 6, 2012, excluding GHG-related provisions. California Non-Methane Organic Gas Test Procedures, as last amended December 6, 2012. California Evaporative Emission Standards and Test Procedures for 2001 and Subsequent Model Motor Vehicles, as last amended Decem- ber 6, 2012. California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Otto-Cycle Engines, as last amended December 6, 2012. California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engines and Vehicles, as last amended December 6, 2012. California Exhaust Emission Standards and Test Procedures for 2009 through 2017 Model Zero-Emission Vehicles and Hybrid Electric Ve- hicles, in the Passenger Car, Light-Duty Truck, and Medium-Duty Vehicle Classes, as last amended December 6, 2012. California Exhaust Emission Standards and Test Procedures for 2018 and Subsequent Model Zero-Emission Vehicles and Hybrid Vehicles, in the Passenger Car, Light-Duty Truck, and Medium-Duty Vehicle Classes, adopted December 6, 2012, excluding GHG-related provi- sion. On-Road Heavy-Duty Gasoline Engines: California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Otto-cycle Engines, as last amended December 12, 2002. On-Road Heavy-Duty Diesel Engines: California Exhaust Emission Standards and Test Procedures for 1985 and Subsequent Model Heavy-Duty Diesel Engines and Vehicles, as last amended October 25, 2001. On-Road Motorcycles: California Motor Vehicle Emission Control and Smog Index Label Specifications, as last amended October 22, 1999. On-Road Heavy Duty Vehicles—Reduced Idling: California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engines, as last amended September 1, 2006. Off-Road Large Spark-Ignition (LSI) Engines: California Exhaust Emission Standards and Test Procedures for New 2001 through 2006 Off-Road Large Spark-Ignition Engines, Parts I and II, adopted September 1, 1999 and as last amended March 2, 2007. California Exhaust and Evaporative Emission Standards and Test Procedures for 2007 through 2009 Off-Road Large Spark-Ignition En- gines, (2007–2009 Test Procedure 1048), adopted March 2, 2007. California Exhaust and Evaporative Emission Standards and Test Procedures for New 2010 and Later Off-Road Large Spark-Ignition En- gines, (2010 and Later Test Procedure 1048), adopted March 2, 2007. California Exhaust and Evaporative Emission Standards and Test Procedures for New 2007 and Later Off-Road Large Spark-Ignition En- gines (Test Procedures 1065 and 1068), adopted March 2, 2007. Small Off-Road Engines (SORE): California Exhaust Emission Standards and Test Procedures for 2005 and Later Small Off-Road Engines, as last amended February 24, 2010.

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TABLE 2—DOCUMENTS INCORPORATED BY REFERENCE IN CARB REGULATIONS LISTED IN TABLE 1, ABOVE, AND SUBMITTED AS PART OF SIP REVISION—Continued Off-Road Compression–Ignition (CI) Engines: California Exhaust Emission Standards and Test Procedures for New 2000 and Later Tier 1, Tier 2, and Tier 3 Off-Road Compression-Igni- tion Engines, Part I–B, adopted January 28, 2000 and as last amended October 20, 2005. California Exhaust Emission Standards and Test Procedures for New 1996 and Later Tier 1, Tier 2, and Tier 3 Off-Road Compression-Igni- tion Engines, Part II, adopted May 12, 1993 and as last amended October 20, 2005. California Exhaust Emission Standards and Test Procedures for New 2008 and Later Tier 4 Off-Road Compression-Ignition Engines, Part I–C, adopted October 20, 2005. Spark-Ignition Marine Engines and Boats (Marine SI): California Exhaust Emission Standards and Test Procedures for 2001 Model Year and Later Spark-Ignition Marine Engines, as last amend- ed June 5, 2009. Procedures for Exemption of Add-On and Modified Parts for Off-Road Categories, as last amended June 5, 2009. Off-Highway Recreational Vehicles and Engines (OHRV): California Exhaust Emissions Standards and Test Procedures for 1997 and Later Off-Highway Recreational Vehicles, and Engines, as last amended August 15, 2007.

It is important to note that CARB has states, would be granted a waiver from CAA, based on ambient data collected at expressly excluded from the August 14, preemption (if certain criteria are met) numerous sites throughout the state, the 2015 SIP submittal certain sections or and thereby enforce its own standards EPA has designated areas within subsections of California code that have and other requirements for the control California as nonattainment areas for the been authorized or waived by the EPA of emissions from new motor vehicles. ozone NAAQS and the particulate under CAA section 209. The excluded In the 1990 CAA Amendments, matter (both PM10 and PM2.5) NAAQS. provisions pertain to: Congress extended a similar process that See, generally, 40 CFR 81.305. • Greenhouse Gas (GHG) exhaust had been established under section 209 California also includes a number of emission standards for 2009 through for new motor vehicles to new and in- areas that had been designated as 2016 Model Passenger Cars, Light-Duty use off-road vehicles and engines. See nonattainment areas for the carbon Trucks, and Medium-Duty Vehicles, and CAA section 209(e)(2). Under the 1990 monoxide NAAQS that the EPA has 2017 and subsequent Model Passenger CAA Amendments, the EPA must redesignated as attainment areas Cars, Light-Duty Trucks, and Medium- authorize California standards for the because they have attained the standard Duty Vehicles; and control of emissions of off-road vehicles and are subject to an approved • GHG related provisions and engines if certain criteria are met. maintenance plan demonstrating how incorporated in the test procedures. The first waiver granted was for they will maintain the carbon monoxide Also, CARB has expressly excluded California’s On-Road Emissions standard into the future. Standards for Model Year 1968. (See 33 certain sections or subsections of Mobile source emissions constitute a FR 10160, July 16, 1968.) Since then, California code that are not subject to significant portion of overall emissions there have been dozens of waivers and preemption under CAA section 209 and of carbon monoxide, volatile organic authorizations granted by the EPA for thus not included in the related waiver compounds (VOC), oxides of nitrogen new and amended CARB mobile source or authorization by the EPA. These (NO ), sulfur dioxide (SO ) and regulations. The EPA’s Office of X 2 provisions pertain to: particulate matter (PM) in the various • Transportation and Air Quality Fuel requirements; air quality planning areas within • Idling restrictions on drivers; maintains a Web site that provides a California, and thus, the purpose of • Opacity standards; general description of the waiver and CARB’s mobile source regulations is to • Daily mass emission limits (from authorization process and lists all of the reduce these emissions and thereby the PERP regulations); and various waivers and authorizations reduce ambient concentrations to attain • Certain labeling and consumer granted by the Agency to CARB over the and maintain the NAAQS throughout notification requirements. years. See http://www.epa.gov/otaq/ California.3 At elevated levels, ozone Section III.B.4 below provides further cafr.htm. discussion of these excluded provisions. Historically, as noted above, CARB and PM harm human health and the regulations subject to the section 209 environment by contributing to B. Are there other versions of these premature mortality, aggravation of regulations? waiver or authorization process were not submitted to the EPA as a revision respiratory and cardiovascular disease, As noted previously, the CAA to the California SIP. Thus, for the decreased lung function, visibility generally assigns to the EPA the purposes of the California SIP, there are impairment, and damage to vegetation responsibility of establishing standards no previous versions of the rules and ecosystems. for the control of emissions from mobile addressed in today’s proposed action. D. What requirements do the regulations sources. However, the State of California establish? was a pioneer in establishing standards C. What is the purpose of the submitted for the control of emissions from new regulations? Table 3 below describes the motor vehicles, and, in part due to the Historically, California has applicability of the regulations listed in state’s pioneering efforts, Congress experienced some of the most severe table 1 above and summarizes some of established in 1967 a process under and most persistent air pollution the key emissions control requirements which California, alone among the problems in the country. Under the contained in the rules.

3 VOC and NOX are precursors responsible for the precursors for fine particulate matter (PM2.5). SO2 sulfur oxides (SOX). PM2.5 precursors also include formation of ozone, and NOX and SO2 are belongs to a family of compounds referred to as VOC and ammonia. See 40 CFR 51.1000.

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TABLE 3—GENERAL DESCRIPTION OF REQUIREMENTS ESTABLISHED IN THE MOBILE SOURCE REGULATIONS INCLUDED IN THE AUGUST 14, 2015 SIP REVISION

Source category Description of requirements in submitted regulation

On-Road Passenger Cars, CARB’s ‘‘LEV II’’ regulations establish exhaust and evaporative emissions standards (and test procedures) for Light-Duty Trucks, and Me- model year (MY) 2004 through 2014 passenger cars, light-duty trucks, and medium-duty passenger vehicles. dium-Duty Vehicles (LEV II). The LEV II regulations also include the adoption of Compliance Assurance Program ‘‘CAP 2000’’ amend- ments that establish new motor vehicle certification and in-use test requirements—developed jointly with the U.S. Environmental Protection Agency—applicable to 2001 and subsequent model motor vehicles. For more information about CARB’s LEV II regulations, see 68 FR 19811 (April 22, 2003), 70 FR 22034 (April 28, 2005), and 75 FR 44948 (July 30, 2010). On-Road Passenger Cars, CARB’s LEV III and ZEV amendments combine the control of criteria air pollutants and GHG emissions into a Light-Duty Trucks, and Me- single coordinated package of requirements for MY 2015 through 2025 passenger cars, light-duty trucks, and dium-Duty Vehicles (LEV III) medium-duty passenger vehicles. The requirements amend the exhaust and evaporative emissions stand- and Zero Emission Vehicles ards, the test procedures, and the on-board diagnostic system specifications. (The standards related to GHG (ZEV). emissions are not included in the SIP revision submittal.) For more information about CARB’s LEV III and ZEV amendments, see 78 FR 2112 (January 9, 2013). On-Road Heavy-Duty Gasoline CARB’s on-road heavy-duty gasoline engine regulations establish exhaust emission standards for heavy-duty Engines. Otto-cycle engines and vehicles above 8,500 pounds gross vehicle weight rating (GVWR) for the 2004, 2005 through 2007, and the 2008 and subsequent MYs. These regulations align each of California’s exhaust emis- sion standards and test procedures with its federal counterpart in an effort to streamline and harmonize the California and federal programs. For more information about CARB’s on-road heavy-duty gasoline engine regulations, see 75 FR 70237 (November 17, 2010). On-Road Heavy-Duty Diesel CARB’s On-Road Heavy-Duty Diesel Engine regulations establish heavy-duty diesel regulations for 2007 and Engines. subsequent model year vehicles and engines (2007 California Heavy Duty Diesel Engine Standards) and re- lated test procedures including the not-to-exceed (NTE) and supplemental steady state tests (supplemental test procedures) to determine compliance with applicable standards. CARB’s 2007 California Heavy Duty Diesel Engine Standards primarily align California’s standards and test procedures with the federal standards and test procedures for 2007 and subsequent model year on-road heavy-duty vehicles and engines. For more information about CARB’s On-Road Heavy-Duty Diesel Engine regulations, see 70 FR 50322 (August 26, 2005) On-Road Motorcycles ...... CARB’s regulations establish exhaust emissions standards and test procedures for new on-road motorcycles and motorcycle engines. For additional information about CARB’s motorcycle regulations, see 71 FR 44027 (August 3, 2006). On-Road Heavy-Duty En- CARB’s HD OBD regulations establish requirements for onboard diagnostic systems (OBD systems) that are gines—On-Board Diagnostic installed on 2010 and subsequent model-year engines certified for sale in heavy-duty applications in Cali- System (HD OBD). fornia. The OBD systems, through the use of an onboard computer(s), monitor emission systems in-use for the actual life of the engine and are capable of detecting malfunctions of the monitored emission systems, il- luminating a malfunction indicator light (MIL) to notify the vehicle operator of detected malfunctions, and stor- ing fault codes identifying the detected malfunctions. For more information about CARB’s HD OBD regula- tions, see 77 FR 73459 (December 10, 2012). On-Road Heavy Duty Vehi- As submitted, CARB’s truck idling requirements consist of ‘‘New engine requirements’’ that require new Cali- cles—engine or vehicle idle fornia-certified 2008 and subsequent model year on-road diesel engines in vehicles with a gross vehicle controls. weight rating (GVWR) greater than 14,000 pounds (i.e., heavy-duty diesel vehicles or ‘‘HDDV’’s) be equipped with a system that automatically shuts down the engine after five minutes of continuous idling. For more in- formation about CARB’s truck idling requirements, see 77 FR 9239 (February 16, 2012). In-Use Diesel-Fueled Transport Establishes in-use performance standards for diesel–fueled TRUs and TRU generator sets operating in Cali- Refrigeration Units (TRUs). fornia, and facilities where TRUs operate. In-use TRU engines are required, through one of the compliance options set forth in the regulations (e.g., retrofit or replacement), to meet specific performance standards that vary by horsepower range, and that have two levels of stringency that are phased in over time—the Low Emission TRU Standards, beginning in 2008, and the Ultra-Low Emission TRU Standards beginning in 2010. More stringent performance standards are required at 7-year intervals until the Ultra-Low TRU standards are met. For more information about CARB’s in-use TRU regulations, see 74 FR 3030 (January 16, 2009) and 78 FR 38970 (June 28, 2013). Commercial Harbor Craft ...... CARB’s commercial harbor craft regulations establish emissions standards, requirements related to control of emissions, and enforcement provisions applicable to diesel propulsion and auxiliary engines on new and in- use commercial harbor craft. For new harbor craft, each propulsion and auxiliary diesel engine on the vessel is required to be certified to the most stringent federal new marine engine emission standards for that en- gine’s power rating and displacement in effect at the time of sale, lease, rent, or acquisition. The regulation imposes additional requirements for larger new ferries (with the capacity to transport seventy-five or more passengers), either by using best available control technology (‘‘BACT’’), or by using a federal Tier 4 certified propulsion engine. For in-use harbor craft, new or in-use diesel engines may not be sold, offered for sale, leased, rented, or acquired unless the diesel propulsion or auxiliary engines are certified to at least the fed- eral Tier 2 or Tier 3 marine emission standards for new engines of the same power rating and displacement. In-use emission requirements are imposed on Tier 0 and Tier 1 marine engines in ferries, excursion vessels, tugboats, towboats, push boats, and multipurpose harbor craft. Those harbor craft are required to meet emis- sion limits equal to or cleaner than the federal new marine engine certification standards in effect for the year that in-use engine compliance is required. For more information about CARB’s commercial harbor craft regu- lations, see 76 FR 77521 (December 13, 2011).

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TABLE 3—GENERAL DESCRIPTION OF REQUIREMENTS ESTABLISHED IN THE MOBILE SOURCE REGULATIONS INCLUDED IN THE AUGUST 14, 2015 SIP REVISION—Continued

Source category Description of requirements in submitted regulation

Off-Road Large Spark-Ignition CARB’s LSI regulations establish more stringent emissions standards for new off-road LSI engines (25 hp or (LSI) Engines. greater, gasoline- or LPG-powered, excluding construction and farm equipment) beginning in 2007 (increas- ing in stringency in 2010), and in-use fleet requirements for forklifts and other industrial equipment with LSI engines. The fleet average in-use emission standards apply to operators of large- and medium-sized fleets of forklifts, sweepers/scrubbers, airport ground supported equipment (GSE), and industrial two tractors with en- gine displacements of greater than one liter. For more information about CARB’s LSI regulations, see 77 FR 20388 (April 4, 2012). Auxiliary Diesel Engines on CARB’s ‘‘At-Berth’’ regulation contains requirements that apply, with limited exceptions, to any person who Ocean-Going Vessels. owns or operates any container vessel, passenger vessel, or refrigerated cargo vessel that visits any of six specified California ports. It also contains requirements that affect any person who owns or operates those ports or terminals located at them. CARB’s At-Berth regulation requires fleets of container vessels, pas- senger vessels and refrigerated cargo vessels to either: (1) Limit the amount of time they operate their auxil- iary diesel engines by connecting to shore power for most of a vessel’s stay at port (‘‘Shore Power Option’’); or (2) achieve equivalent emission reductions by employing other emission control techniques (‘‘Equivalent Emission Reduction Option’’). Fleet operators who elect the Shore Power Option are required to obtain the power that would otherwise be provided by a vessel’s auxiliary engines by connecting to shore power for a percentage of the fleet’s annual port visits. The required percentage of shore power connected port visits in- creases over the life of the regulation. Specifically, fifty percent of a fleet’s total visits must be connected to shore power by 2014, followed by seventy percent by 2017, and eighty percent by 2020. For more informa- tion about CARB’s At-Berth regulation, see 76 FR 77515 (December 13, 2011). In-Use Off-Road Diesel Fueled CARB’s In-Use Off-Road Diesel-Fueled Fleets Regulation applies to fleets with off-road compression-ignition Fleets. vehicles or equipment greater than 25 horsepower. The regulation takes effect beginning as early as 2014, depending on fleet size. It requires fleet operators to meet a progressively more stringent combined PM and NOX standard, or to reduce emissions through technology upgrades such as retrofit or replacement. For more information about CARB’s In-Use Off-Road Diesel-Fueled Fleets Regulation, see 78 FR 58090 (Sep- tember 20, 2013). Mobile Cargo Handling Equip- CARB’s mobile CHE regulation sets performance standards for engines equipped in newly purchased, leased, ment (CHE). or rented (collectively known as ‘‘newly acquired’’), as well as in-use, mobile cargo handling equipment used at ports or intermodal rail yards in California. The standards vary depending on the type of vehicle, whether the engine is used in off-road equipment or a vehicle registered as an on-road motor vehicle, and whether they are newly acquired or already in-use. For more information about CARB’s mobile CHE regulation, see 77 FR 9916 (February 21, 2012) and 80 FR 26249 (May 7, 2015). Small Off-Road Engines CARB’s SORE regulations establish emissions standards for new spark ignition utility and lawn and garden (SORE). equipment engines 25 horsepower and under. For more information about CARB’s SORE regulations, see 80 FR 26041 (May 6, 2015). Off-Road Compression –Igni- CARB’s Off-Road CI Engine Regulations establish emissions standards for new off-road diesel-powered en- tion (CI) Engines. gines and equipment. For more information about CARB’s Off-Road CI Engine Regulations, see 75 FR 8056 (February 23, 2010). In-Use Portable Diesel-Fueled CARB’s PDE regulation establishes requirements for in-use portable diesel-fueled engines 50 brake-horse- Engines (PDE). power (hp) and greater. Specifically, starting on January 1, 2010, all portable engines in California must be certified to meet a federal or California standard for newly manufactured off-road engines. More stringent re- quirements apply beginning on January 1, 2020. Fleets of portable engines must comply with increasingly more stringent weighted PM emission fleet averages that apply on three different deadlines (January 1, 2013, January 1, 2017, and January 1, 2020). For more information about CARB’s PDE regulation, see 77 FR 72846 (December 6, 2012). Portable Equipment Registra- PERP is a voluntary statewide program that enables registration of off-road engines and equipment that oper- tion Program (PERP). ate at multiple locations across California, so that the engine and equipment owners can operate throughout California without obtaining permits from local air pollution control districts. The PERP sets out four general requirements applicable to all registered equipment: (1) Registered equipment may not operate in a manner that causes a nuisance; (2) registered equipment may not interfere with attainment of national or state ambi- ent air quality standard; (3) registered equipment many not cause an exceedance of an ambient air quality standard; and (4) owners of registered equipment must provide notice and comply with requirements for pre- vention of significant deterioration if it would constitute a major modification of that source. The PERP also has specific requirements for both registered engines and certain types of equipment units. For more infor- mation about CARB’s PERP regulations, see 77 FR 72851 (December 6, 2012). Spark-Ignition Inboard and CARB’s Inboard and Sterndrive Marine Engine regulations establish tier II hydrocarbon (HC) and NOX exhaust Sterndrive Marine Engines. emissions standards for new inboard and sterndrive engines. For more information about CARB’s Marine SI Engine regulations, see 72 FR 14546 (March 28, 2007) and 76 FR 24872 (May 3, 2011). Spark-Ignition Marine Engines CARB’s Marine SI Engine regulations establish HC and NOX exhaust emissions standards for outboard, in- and Boats (Marine SI). board, and sterndrive engines and personal watercraft. For more information about CARB’s Marine SI Engine regulations, see 72 FR 14546 (March 28, 2007), 76 FR 24872 (May 3, 2011), and 80 FR 26032 (May 6, 2015). Off-Highway Recreational Vehi- CARB’s OHRV regulations establish exhaust and evaporative emission standards and test procedures for cles and Engines (OHRV). OHRVs. The regulations also establish a ‘‘red tag’’ program under which OHRVs not meeting the applicable emissions standards could be certified subject to use restrictions (i.e., use in specified areas during specified times of the year). For more information about CARB’s OHRV regulations, see 79 FR 6584 (February 4, 2014).

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III. EPA’s Evaluation and Proposed be held on July 23, 2015 to consider 211(c)(4)(A) [preemption of state fuel Action adoption and submittal of the adopted requirements for motor vehicles, i.e., regulations for which the EPA has other than California’s motor vehicle A. How is the EPA evaluating the granted waivers or authorization as a fuel requirements for motor vehicle regulations? revision to the California SIP. CARB emission control—section 211(c)(4)(B)]. The EPA has evaluated the submitted held the public hearing on July 23, For certain types of mobile source regulations discussed above against the 2015. No written comments were standards, the State of California may applicable procedural and substantive submitted to CARB in connection with request a waiver (for motor vehicles) or requirements of the CAA for SIPs and the proposed SIP revision, and no authorization (for off-road vehicles or SIP revisions and has concluded that public comments were made at the engines) for standards relating to the they meet all of the applicable public hearing. CARB adopted the SIP control of emissions and accompanying requirements. Generally, SIPs must revision at the July 23, 2015 Board enforcement procedures. See CAA include enforceable emission Hearing (Board Resolution 15–40), and sections 209(b) (new motor vehicles) limitations and other control measures, submitted the relevant mobile source and 209(e)(2) (most categories of new means, or techniques, as well as regulations to the EPA on August 14, and in-use off-road vehicles). schedules and timetables for 2015 along with evidence of the public The mobile source regulations that are compliance, as may be necessary to process conducted by CARB in adopting the subject of today’s proposed rule are meet the requirements of the Act [see the SIP revision. We conclude that those for which California has sought a CAA section 110(a)(2)(A)]; must provide CARB’s August 14, 2015 SIP revision waiver or authorization and for which necessary assurances that the state will submittal meets the applicable the EPA has granted such waiver or have adequate personnel, funding, and procedural requirements for SIP authorization and thus the regulations authority under state law to carry out revisions under the CAA section 110(l) proposed for approval today are not such SIP (and is not prohibited by any and 40 CFR 51.102. preempted under the CAA.5 For provision of federal or state law from additional information regarding 2. Does the state have adequate legal carrying out such SIP) [see CAA section California’s motor vehicle emission authority to implement the regulations? 110(a)(2)(E)]; must be adopted by a state standards, please see the EPA’s after reasonable notice and public CARB has been granted both general ‘‘California Waivers and hearing [see CAA section 110(l)], and and specific authority under the Authorizations’’ Web page at URL must not interfere with any applicable California Health & Safety Code (H&SC) address: http://www.epa.gov/otaq/ requirement concerning attainment and to adopt and implement these cafr.htm. This Web site also lists reasonable further progress, or any other regulations. California H&SC sections relevant Federal Register notices that applicable requirement of the Act [see 39600 (‘‘Acts required’’) and 39601 have been issued by the EPA is response CAA section 110(l)].4 (‘‘Adoption of regulation; Conformance to California waiver and authorization to federal law’’) confer on CARB the requests. B. Do the state regulations meet CAA general authority and obligation to In addition, the EPA is unaware of SIP evaluation criteria? adopt regulations and measures any non-CAA legal obstacle to CARB’s 1. Did the state provide adequate public necessary to execute CARB’s powers enforcement of the regulations and thus notification and comment periods? and duties imposed by state law. we conclude that the state has provided California H&SC sections 43013(a) and the necessary assurances that the state Under CAA section 110(l), SIP 43018 provide broad authority to has adequate authority under state law revisions must be adopted by the state, achieve the maximum feasible and cost- to carry out the SIP revision (and is not and the state must provide for effective emission reductions from all prohibited by any provision of federal or reasonable public notice and hearing mobile source categories. Regarding in- state law from carrying out such SIP) prior to adoption. In 40 CFR 51.102(d), use motor vehicles, California H&SC and thereby meets the requirements of we specify that reasonable public notice sections 43600 and 43701(b), CAA section 110(a)(2)(E) with respect to in this context refers to at least 30 days. respectively, grant CARB authority to legal authority. All of the submitted regulations have adopt emission standards and emission gone through extensive public comment control equipment requirements. 3. Are the regulations enforceable as processes including CARB’s workshop Further, California H&SC section 39666 required under CAA section 110(a)(2)? and hearing processes prior to state gives CARB authority to adopt airborne We have evaluated the enforceability adoption of each rule. Also, the EPA’s toxic control measures to reduce of the submitted mobile source waiver and authorization processes emissions of toxic air contaminants provide an opportunity for the public to from new and in-use non-vehicular 5 We recognize that our authorization (78 FR request public hearings to present sources. 58090, September 20, 2013) for CARB’s in-use off- information relevant to the EPA’s As a general matter, as noted above, road diesel-fueled fleet regulations has been consideration of CARB’s request for challenged in both the D.C. Circuit and Ninth the CAA assigns mobile source Circuit Court of Appeals. See Dalton Trucking, Inc. waiver or authorization under section regulation to the EPA through title II of v. EPA (D.C. Cir., No 13–1283) and Dalton 209 of the CAA and to submit written the Act and assigns stationary source Trucking, Inc. v. EPA (9th Cir., No. 13–74019). The comment. regulation and SIP development D.C. Circuit will hear oral arguments in the case on In addition, on June 19, 2015, CARB November 9, 2015. (The Ninth Circuit is holding the responsibilities to the states through cased in abeyance pending a decision by the D.C. published a notice of public meeting to title I of the Act. In so doing, the CAA Circuit concerning jurisdiction.) An adverse preempts various types of state decision from the D.C. Circuit or Ninth Circuit that 4 CAA section 193, which prohibits any pre-1990 remands or vacates our authorization of CARB’s in- SIP control requirement relating to nonattainment regulation of mobile sources as set forth use off-road diesel-fueled fleet regulations will pollutants in nonattainment areas from being in section 209(a) (preemption of state prompt reconsideration of our approval of the modified unless the SIP is revised to insure emissions standards for new motor regulations as part of the SIP because, absent equivalent or greater emission reductions of such vehicles and engines), section 209(e) authorization, CARB will be prohibited from air pollutants, does not apply to these regulations enforcing the regulations and thus will no longer be because they would be new to the California SIP, (preemption of state emissions able to provide the necessary assurances called for and thus, do not constitute an amendment to a pre- standards for new and in-use nonroad in CAA section 110(a)(2)(E) for the subject 1990 SIP control requirement. vehicles and engines) and section regulations.

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regulations with respect to applicability commercial harbor craft includes because they provide minimal and exemptions; standard of conduct alternative control of emissions (ACE) emissions reductions over the time and compliance dates; sunset provisions that allow a person to be period covered by the current provisions; discretionary provisions; deemed in compliance by implementing generation of California RFP, and test methods, recordkeeping and an alternative emission control strategy attainment, and maintenance plans. reporting,6 and have concluded for the (AECS) subject to the approval of the With respect to the non-preempted reasons given below that the proposed Executive Officer. See 13 CCR section provisions, we understand that they regulations would be enforceable for the 93118.5(f). The regulation specifies the were not included in the August 14, purposes of CAA section 110(a)(2). application process for such an AECS, 2015 SIP submittal because they are not First, with respect to applicability, we requires a number of demonstrations to ‘‘waiver measures’’ and thus are not find that the submitted regulations be included (such as equivalent relevant for the purposes of responding would be sufficiently clear as to which emissions reduction), and provides for to the Ninth Circuit’s decision in persons and which vehicles or engines public review. With such constraints on Committee for a Better Arvin v. EPA. are affected by the regulations. See, e.g., discretion, the ‘‘director’s discretion’’ However, we note the general principle 13 CCR section 2430 (applicability contained in the submitted regulations that state emissions limitations and would not significantly undermine provision for off-road LSI engine other control measures that are relied enforceability of the rules by citizens or emission standard regulation); 13 CCR upon to meet CAA SIP requirements, the EPA. section 2449(b) (applicability provision such as RFP, attainment or maintenance for in-use off-road diesel-fueled fleets Lastly, each of the submitted demonstrations, must be approved into regulation). regulations identifies appropriate test Second, we find that the submitted methods and includes adequate the SIP to comply with the requirement regulations would be sufficiently recordkeeping and reporting for such limitations and other control specific so that the persons affected by requirements sufficient to ensure measures to be enforceable for the the regulations would be fairly on notice compliance with the applicable purposes of CAA section 110(a)(2)(A). as to what the requirements and related requirements. The technical support Thus, we encourage CARB to review the compliance dates area. For instance, see document provides more detail RFP, attainment, and maintenance plans the performance requirements for in-use concerning the contents of the for the various air quality planning areas off-road diesel-fueled fleets in 13 CCR submitted regulations. in California to ensure that the plans do section 2449(d). Third, none of the not rely on the associated emissions 4. Do the regulations interfere with reductions from the provisions excluded submitted regulations contain sunset reasonable further progress and from the August 14, 2015 SIP submittal. provisions that automatically repeal the attainment or any other applicable emissions limits by a given date or upon requirement of the Act? 5. Will the state have adequate the occurrence of a particular event, All of the state’s reasonable further personnel and funding for the such as the change in the designation of regulations? an area from nonattainment to progress (RFP), attainment, and maintenance plans rely to some extent attainment.7 In its SIP revision submittal, CARB Fourth, a number of the submitted on the emission reductions from CARB’s mobile source program, including the refers to the annual approval by the regulations contain provisions that California Legislature of funding and allow for discretion on the part of emissions standards and other requirements for which the EPA has staff resources for carrying out CAA- CARB’s Executive Officer. Such related responsibilities and notes that a ‘‘director’s discretion’’ provisions can issued waivers or authorizations. For some plans, the reliance is substantial large portion of CARB’s budget has gone undermine enforceability of a SIP 8 and for others the reliance is less. toward meeting CAA mandates. CARB regulation, and thus prevent full indicates that a majority of CARB’s approval by the EPA. However, in the CARB’s mobile source program is reflected in the emissions estimates for funding comes from dedicated fees instances of ‘‘director’s discretion’’ in collected from regulated emission the submitted regulations, the discretion mobile sources that are included in the emissions inventories that form the sources and other sources such as that can be exercised by the CARB quantitative basis for the RFP, vehicle registration fees and vehicles Executive Officer is reasonably limited attainment, and maintenance license plate fees and that these funds under the terms of the regulations. For demonstrations. As such, CARB’s can only be used for air pollution instance, the regulation establishing mobile source regulations submitted for control activities. Id. For the 2014–2015 standards and other requirements approval as a revision to the California budget cycle, CARB had over 700 related to the control of emissions from SIP support the various RFP, positions and almost $500 million attainment, and maintenance plans, and dedicated for the mobile source program 6 These concepts are discussed in detail in an EPA memorandum from J. Craig Potter, EPA would not interfere with such developing and enforcing regulations. Assistant Administrator for Air and Radiation, et requirements for the purposes of CAA Id. Given the longstanding nature of al., titled ‘‘Review of State Implementation Plans section 110(l). CARB’s mobile source program, and its and Revisions for Enforceability and Legal As noted above, CARB expressly Sufficiency,’’ dated September 23, 1987. documented effectiveness at achieving 7 The only such provisions in any of the excluded certain sections or subsections significant reductions from mobile submitted regulations are a sunset provision for of California code from consideration as sources, we find that CARB has alternative requirements in the ZEV regulations at part of the SIP revision. These provided necessary assurances that the 13 CCR section 1962.1(b)(2)(B)(3.), and a sunset provisions relate to GHG motor vehicle review of the on-road motorcycle standards at 13 state has adequate personnel and CCR section 1958(h). The latter provision requires emissions standards and test funding to carry out the mobile source CARB to review the on-road motorcycle standards procedures, fuel requirements, idling regulations submitted for approval as in section 1958 to determine whether they should limits, opacity standards, daily mass part of the California SIP. be retained, revised, or repealed. Any such revision emission limits, and certain labeling or rescission would not be become effective automatically, but would require rulemaking by and consumer notification 8 Letter from Richard W. Corey, Executive Officer, CARB, and may also require a waiver from the EPA requirements. We understand that the CARB, to Jared Blumenfeld, Regional depending on the nature or the revision. GHG provisions have been excluded Administrator, EPA Region IX, August 14, 2015.

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6. EPA’s Evaluation Conclusion impose additional requirements beyond Dated: October 30, 2015. Based on the above discussion, we those imposed by state law. For that Jared Blumenfeld, reason, this proposed action: Regional Administrator, Region IX. believe these regulations are consistent • with the relevant CAA requirements, Is not a ‘‘significant regulatory [FR Doc. 2015–28614 Filed 11–10–15; 8:45 am] action’’ subject to review by the Office and with relevant EPA policies and BILLING CODE 6560–50–P guidance. of Management and Budget under Executive Order 12866 (58 FR 51735, C. Proposed Action and Request for October 4, 1993); ENVIRONMENTAL PROTECTION Public Comment • Does not impose an information AGENCY Under section 110(k)(3) of the CAA, collection burden under the provisions and for the reasons given above, we are of the Paperwork Reduction Act (44 40 CFR Part 52 proposing to approve a SIP revision U.S.C. 3501 et seq.); • Is certified as not having a [EPA–R06–OAR–2015–0431; FRL–9936–68– submitted by CARB on August 14, 2015 Region 6] that includes certain sections of title 13 significant economic impact on a and title 17 of the California Code of substantial number of small entities Approval and Promulgation of Regulations that establish standards and under the Regulatory Flexibility Act (5 Implementation Plans; State of New U.S.C. 601 et seq.); Mexico/Albuquerque-Bernalillo other requirements relating to the • control of emissions from new and in- Does not contain any unfunded County; Infrastructure and Interstate use on-road and off-road vehicles and mandate or significantly or uniquely Transport SIP 2010 Sulfur Dioxide engines. We are proposing to approve affect small governments, as described National Ambient Air Quality these regulations as part of the in the Unfunded Mandates Reform Act Standards California SIP because we believe they of 1995 (Pub. L. 104–4); • Does not have federalism AGENCY: Environmental Protection fulfill all relevant CAA requirements. Agency (EPA). We will accept comments from the implications as specified in Executive ACTION: public on this proposal until December Order 13132 (64 FR 43255, August 10, Proposed rule. 14, 2015. Unless we receive convincing 1999); • Is not an economically significant SUMMARY: Under the Federal Clean Air new information during the comment regulatory action based on health or Act (CAA or the Act), the period, we intend to publish a final safety risks subject to Executive Order Environmental Protection Agency (EPA) approval action that will incorporate is proposing to approve a State these rules into the federally enforceable 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action Implementation Plan (SIP) submission SIP for the State of California. subject to Executive Order 13211 (66 FR from the State of New Mexico on behalf IV. Incorporation by Reference 28355, May 22, 2001); of Albuquerque-Bernalillo County for • the 2010 Sulfur Dioxide (SO ) National In this proposed rule, the EPA is Is not subject to requirements of 2 Section 12(d) of the National Ambient Air Quality Standards proposing to include in a final EPA rule (NAAQS). The submittal addresses how regulatory text that includes Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because the existing SIP provides for incorporation by reference. In implementation, maintenance, and accordance with requirements of 1 CFR application of those requirements would enforcement of the 2010 SO NAAQS 51.5, the EPA is proposing to be inconsistent with the Clean Air Act; 2 (infrastructure SIP or i-SIP). This i-SIP incorporate by reference certain sections and • ensures that the State’s SIP for of title 13 and title 17 of the California Does not provide the EPA with the Albuquerque-Bernalillo County is Code of Regulations that establish discretionary authority to address, as adequate to meet the state’s standards and other requirements appropriate, disproportionate human responsibilities under the CAA, relating to the control of emissions from health or environmental effects, using including the four CAA requirements new and in-use on-road and off-road practicable and legally permissible for interstate transport of SO emissions. vehicles and engines, as described in methods, under Executive Order 12898 2 section II of this preamble. The EPA has (59 FR 7629, February 16, 1994). DATES: Written comments must be made, and will continue to make, these In addition, the SIP is not approved received on or before December 14, documents generally available to apply on any Indian reservation land 2015. electronically through or in any other area where the EPA or ADDRESSES: Submit your comments, www.regulations.gov and/or in hard an Indian tribe has demonstrated that a identified by Docket ID Number EPA– copy at the appropriate EPA office (see tribe has jurisdiction. In those areas of R06–OAR–2015–0431, by one of the the ADDRESSES section of this preamble Indian country, this proposed rule does following methods: for more information). not have tribal implications as specified • www.regulations.gov. Follow the by Executive Order 13175 (65 FR 67249, online instructions. V. Statutory and Executive Order November 9, 2000), nor will it impose • Email: Tracie Donaldson at Reviews substantial direct costs on tribal [email protected]. Under the Clean Air Act, the governments or preempt tribal law. • Mail or delivery: Mary Stanton, Administrator is required to approve a List of Subjects in 40 CFR Part 52 Chief, Air Grants Section (6PD–S), SIP submission that complies with the Environmental Protection Agency, 1445 provisions of the Act and applicable Environmental protection, Air Ross Avenue, Suite 1200, Dallas, Texas federal regulations. 42 U.S.C. 7410(k); pollution control, Carbon monoxide, 75202–2733. Deliveries are accepted 40 CFR 52.02(a). Thus, in reviewing SIP Incorporation by reference, only between the hours of 8 a.m. and 4 submissions, EPA’s role is to approve Intergovernmental relations, Nitrogen p.m. weekdays, and not on legal state choices, provided that they meet dioxide, Ozone, Particulate matter, holidays. Special arrangements should the criteria of the Clean Air Act. Reporting and recordkeeping be made for deliveries of boxed Accordingly, this proposed action requirements, Volatile organic information. merely approves state law as meeting compounds. Instructions: Direct your comments to federal requirements and does not Authority: 42 U.S.C. 7401 et seq. Docket ID No. EPA–R06–OAR–2015–

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0431. EPA’s policy is that all comments Donaldson or Bill Deese at 214–665– measures, means or techniques, as well received will be included in the public 7253. as schedules and timetables for docket without change, and may be SUPPLEMENTARY INFORMATION: compliance, as may be necessary or made available online at Throughout this document wherever appropriate to meet the applicable www.regulations.gov, including any ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean requirements of the Act, and other personal information provided, unless the EPA. related matters as needed to implement, the comment includes information maintain and enforce each of the claimed to be Confidential Business I. Background NAAQS.3 Information (CBI) or other information On June 22, 2010, EPA revised the Legislative authority for Albuquerque- whose disclosure is restricted by statute. primary SO2 NAAQS (hereafter the 2010 Bernalillo County’s air quality program, Do not submit electronically any SO2 NAAQS) to establish a new 1-hour codified in Chapter 74 Environmental information that you consider to be CBI standard, with a level of 75 parts per Improvement, Article 2, Air Pollution, of or other information whose disclosure is billion (ppb), based on the 3-year the New Mexico statutes, gives the Air restricted by statute. The average of the annual 99th percentile of Board and the Albuquerque www.regulations.gov Web site is an 1-hour daily maximum concentrations Environmental Health Department’s Air ‘‘anonymous access’’ system, which (75 FR 35520). Each state must submit Quality Program (AQP) the authority to means EPA will not know your identity an i-SIP within three years after the implement the CAA in Albuquerque- or contact information unless you promulgation of a new or revised Bernalillo County, New Mexico. provide it in the body of your comment. NAAQS. Section 110(a)(2) of the CAA Enforceable emission limitations and If you send an email comment directly includes a list of specific elements the other control measures are authorized to EPA without going through i-SIP must meet. EPA issued guidance by the New Mexico Air Quality Control www.regulations.gov, your email addressing the i-SIP elements for Act (AQCA), which established the Air address will be automatically captured NAAQS on September 13, 2013.1 The Board and those provisions of New and included as part of the comment Secretary of the New Mexico Mexico Administrative Code (NMAC) that is placed in the public docket and Environmental Department (NMED) Title 20, Environmental Protection, made available on the Internet. If you submitted an i-SIP revision on behalf of Chapter 11, Albuquerque-Bernalillo submit an electronic comment, EPA Albuquerque-Bernalillo County to County Air Quality Control Board. They recommends that you include your address this revised NAAQS on June 11, can adopt emission standards and name and other contact information in 2015. compliance schedules applicable to the body of your comment and with any EPA is proposing to approve the regulated entities; emission standards disk or CD–ROM you submit. If EPA Albuquerque-Bernalillo County, New and limitations and any other measures cannot read your comment due to Mexico i-SIP submittal for the 2010 SO2 necessary for attainment and technical difficulties and cannot contact NAAQS,2 as meeting the requirements maintenance of national standards; and, you for clarification, EPA may not be of an i-SIP. enforce applicable laws, regulations, able to consider your comment. II. EPA’s Evaluation of New Mexico’s i- standards and compliance schedules, Electronic files should avoid the use of SIP Submittal and seek injunctive relief within the special characters, any form of boundaries of Bernalillo County. This encryption, and be free of any defects or Below is a summary of EPA’s authority has been employed to adopt viruses. Multimedia submissions (audio, evaluation of the Albuquerque- and submit multiple revisions to the video, etc.) must be accompanied by a Bernalillo County, New Mexico i-SIP for Albuquerque-Bernalillo County, New written comment. The written comment each applicable element of 110(a)(2) A– Mexico State Implementation Plan. The is considered the official comment and M. The Albuquerque-Bernalillo County approved SIP for Albuquerque- should include discussion of all points Air Quality Control Board (Air Board) Bernalillo County, New Mexico is you wish to make. The EPA will provided a demonstration of how the documented at 40 CFR part 52.1620, generally not consider comments or existing Albuquerque-Bernalillo County, Subpart GG.4 New Mexico SIP met all the comment contents located outside of the (B) Ambient air quality monitoring/ primary submission (i.e. on the Web, requirements of the 2010 SO2 NAAQS on June 11, 2015. data system: The SIP must provide for cloud, or other file sharing system). For establishment and implementation of additional information on submitting (A) Emission limits and other control measures: CAA section 110(a)(2)(A) ambient air quality monitors, collection comments, please visit http:// and analysis of monitoring data, and www2.epa.gov/dockets/commenting- requires SIPs to include enforceable emission limits and other control providing such data to EPA upon epa-dockets. request. Docket: The index to the docket for this action is available electronically at 1 ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean 3 The specific nonattainment area plan www.regulations.gov and in hard copy Air Act sections 110(a)(1) and 110(a)(2),’’ requirements of section 110(a)(2)(I) are subject to at EPA Region 6, 1445 Ross Avenue, Memorandum from Stephen D. Page, September 13, the timing requirements of section 172, not the Suite 700, Dallas, Texas. While all 2013. timing requirement of section 110(a)(1). Thus, 2 documents in the docket are listed in Additional information on: The history of SO2, section 110(a)(2)(A) does not require that states submit regulations or emissions limits specifically the index, some information may be its levels, forms and, determination of compliance; EPA’s approach for reviewing i-SIPs; the details of for attaining the 2010 SO2 NAAQS. Those SIP publicly available only at the hard copy the SIP submittal and EPA’s evaluation; the effect provisions are due as part of each state’s attainment location (e.g., copyrighted material), and of recent court decisions on i-SIPs; the statute and plan, and will be addressed separately from the some may not be publicly available at regulatory citations in the New Mexico SIP specific requirements of section 110(a)(2)(A). In the context to this review; the specific i-SIP applicable CAA of an infrastructure SIP, EPA is not evaluating the either location (e.g., CBI). and EPA regulatory citations; Federal Register existing SIP provisions for this purpose. Instead, FOR FURTHER INFORMATION CONTACT: Notice citations for New Mexico SIP approvals; EPA is only evaluating whether the state’s SIP has Tracie Donaldson, telephone 214–665– New Mexico’s minor New Source Review program basic structural provisions for the implementation and EPA approval activities; and, New Mexico’s of the NAAQS. 6633, [email protected]. To Prevention of Significant Deterioration (PSD) 4 http://www.ecfr.gov/cgi-bin/text-idx? inspect the hard copy materials, please program can be found in the Technical Support SID=64943a7422504656d8d72e9d6 schedule an appointment with Tracie Document (TSD). f87f177&mc=true&node=sp40.5.52.ss&rgn=div6.

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The AQCA provides AQP with the enforcement authorities and funding satisfaction of the applicable authority to monitor ambient air quality mechanisms. infrastructure SIP PSD requirements for in the county (NMSA 1978, section 74– (2) Minor New Source Review (NSR). attainment/unclassifiable areas with 2–5). AQP maintains a monitoring The SIP is required to include measures regards to the 2010 SO2 NAAQS have network for the NAAQS and submits an to regulate construction and been detailed in the section addressing annual Network Assessment to EPA. modification of stationary sources to section 110(a)(2)(C). Two revisions to AQP’s 2014 Air Monitoring Network protect the NAAQS. Albuquerque- the SIP to update the Albuquerque- Plan is the most recently EPA-approved Bernalillo County’s minor NSR Bernalillo County PSD SIP permitting network monitoring plan—approved by permitting requirements are approved as program consistent with federal EPA on February 3, 2015. All part of the SIP.7 requirements have been approved (80 monitoring data is measured using EPA (3) Prevention of Significant FR 52401, August 31, 2015). These approved methods and subject to the Deterioration (PSD) permit program. approvals contain revisions to address EPA quality assurance requirements. Albuquerque-Bernalillo County’s PSD the requirements of the EPA’s May AQP submits all required data to EPA, portion of the SIP covers all NSR 2008, July 2010, and October 2012 PM2.5 following the EPA regulations. The regulated pollutants as well as the PSD Implementation Rules and to monitoring network was approved into requirements for the 2010 SO2 NAAQS incorporate revisions consistent with 8 the SIP (46 FR 4005, August 6, 1981) and has been approved by EPA. EPA the EPA’s March 2011 Fugitives Interim and undergoes annual review by the approved revisions that address the Rule, July 2011 Greenhouse Gas (GHG) EPA.5 In addition, AQP conducts an requirements of the EPA’s May 2008, Biomass Deferral Rule, and July 2012 assessment of the monitoring network July 2010, and October 2012 PM2.5 PSD GHG Tailoring Rule Step 3 and GHG every 5 years. The most recent of these Implementation Rules and to PALs Rule. 5-year monitoring network assessments incorporate revisions consistent with For sources not subject to PSD for any was conducted by AQP and approved the EPA’s March 2011 Fugitives Interim one of the pollutants subject to by EPA. Data is available upon request Rule, July 2011 Greenhouse Gas (GHG) regulation under the CAA because they and in the EPA Air Quality System Biomass Deferral Rule, and July 2012 are in a nonattainment area for a (AQS) database. GHG Tailoring Rule Step 3 and GHG NAAQS, Albuquerque-Bernalillo (C) Program for enforcement The SIP PALs Rule (80 FR 52401, August 31, County has adopted the nonattainment must include the following three 2015). new source review (NNSR) provisions (D) Interstate and international elements: (1) A program providing for required for the 2010 SO2 NAAQS and transport: The requirements for enforcement of the measure in other NAAQS at 20.11.60 NMAC— interstate transport of SO emissions are paragraph A above; (2) a program for the 2 Permitting in Nonattainment Areas. that the SIP contain adequate provisions regulation of the modification and With regard to the applicable prohibiting emissions to other states requirements for visibility protection of construction of stationary sources as which will (1) contribute significantly to section 110(a)(2)(D)(i)(II), this necessary to protect the applicable nonattainment of the NAAQS, (2) requirement was met by our approval of NAAQS (i.e., state-wide permitting of interfere with maintenance of the the regional haze and visibility minor sources); and (3) a permit NAAQS, (3) interfere with measures component of the SIP. program to meet the major source required to prevent significant There are no final findings by EPA permitting requirements of the CAA (for deterioration or (4) interfere with that New Mexico air emissions affect areas designated as attainment or measures to protect visibility (CAA other countries. Therefore, unclassifiable for the NAAQS in Albuquerque-Bernalillo County, New 6 110(a)(2)(D)(i)). question). With respect to the requirements of Mexico has no international obligations. (1) Enforcement of SIP Measures. As section 110(a)(2)(D)(i)(I), the scarcity of If EPA makes such a finding, AQP will noted in (A), the state statutes provide major sources of SO2, the minimal consult with EPA. authority for the AQP to enforce the amount of emissions from these sources, Section 110(a)(2)(D)(ii) also requires requirements of the AQCA within and the large geographic distance that the SIP ensure compliance with the Albuquerque-Bernalillo County, and between those sources and other states, applicable requirements of sections 126 any regulations, permits, or final we find that Albuquerque-Bernalillo and 115 of the CAA, relating to compliance orders. Its statutes also County does not contribute to interstate and international pollution provide the AQP with general nonattainment nor interfere with abatement, respectively. Section 126(a) enforcement powers. Among other maintenance NAAQS. of the CAA requires new or modified things, they can file lawsuits to compel With respect to the PSD requirements sources to notify neighboring states of compliance with the statutes and of section 110(a)(2)(D)(i)(II), we note potential impacts from sources within regulations; commence civil actions; that Albuquerque-Bernalillo County’s the State. Albuquerque-Bernalillo issue field citations; conduct County regulations require that affected investigations of regulated entities; 7 EPA is not proposing to approve or disapprove states, tribes and federal land managers collect criminal and civil penalties; Albuquerque-Bernalillo County’s existing minor receive notice prior to the develop and enforce rules and standards NSR program to the extent that it may be commencement of any construction or related to protection of air quality; issue inconsistent with EPA’s regulations governing this program. EPA has maintained that the CAA does significant modification of a major compliance orders; pursue criminal not require that new infrastructure SIP submissions source. In addition, no sources located prosecutions; investigate, enter into correct any defects in existing EPA-approved in Albuquerque-Bernalillo County have remediation agreements; and issue provisions of minor NSR programs in order for EPA been identified by EPA as having any emergency cease and desist orders. The to approve the infrastructure SIP for element C (e.g., 76 FR 41076–41079, July 13, 2011). EPA believes interstate impacts under section 126 in AQCA also provides additional that a number of states may have minor NSR any pending actions relating to any air provisions that are contrary to the existing EPA pollutant. 5 A copy of the 2014 Annual Air Monitoring regulations for this program. The statutory Section 115 of the CAA authorizes Network Plan and EPA’s approval letter dated requirements of section 110(a)(2)(C) provide for February 3, 2015, are included in the docket for this considerable flexibility in designing minor NSR EPA to require a state to revise its SIP proposed rulemaking. programs. under certain conditions to alleviate 6 As discussed in further detail in the TSD. 8 As discussed further in the TSD. international transport into another

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country. There are no final findings before the board on issues related to the activities causing imminent and under section 115 of the CAA against CAA or the AQCA. Board members are substantial endangerment to public New Mexico with respect to any air required to recuse themselves from rule- health or welfare or the environment pollutant. Thus, the State’s SIP does not makings in which their impartiality may and to include contingency plans to need to include any provisions to meet reasonably be questioned. implement such authorities as the requirements of section 115. With respect to assurances that the necessary. Based upon review of the County’s Air Board has responsibility to The AQCA provides the New Mexico infrastructure SIP submission for the implement the SIP adequately when it Environment Department with authority 2010 SO2 NAAQS, and relevant authorizes local or other agencies to to address environmental emergencies, statutory and regulatory authorities and carry out portions of the plan, the EIA inclusive of contingency plans to provisions referenced in the submission and the AQCA designate the Air Board implement emergency episode or referenced in New Mexico’s SIP, EPA as the primary air pollution control provisions. believes that Albuquerque-Bernalillo agency within Albuquerque-Bernalillo Pursuant to 40 CFR part 51, subpart County has the adequate infrastructure County. The statutes allow for local H, Prevention of Air Pollution needed to address sections agencies to carry out some or all of the Emergency Episodes, on January 26, 110(a)(2)(D)(i)(I) and (II), and Act’s responsibilities. 1989, the Air Board adopted the Air 110(a)(2)(D)(ii) for the 2010 SO2 NAAQS The Albuquerque/Bernalillo County Pollution Contingency Plan for and is proposing to approve this Air Quality Control Board assumes Bernalillo County [August 21, 1991, 56 element of the June 11, 2015, jurisdiction for local administration and FR 38074; 40 CFR 52.1639, Prevention submission. enforcement of the AQCA in Bernalillo of Air Emergency Episodes], which is (E) Adequate authority, resources, County. There are Albuquerque/ part of the SIP, and covers air pollution implementation, and oversight: The SIP Bernalillo County SIP provisions which episodes and the occurrence of an must provide for the following: (1) are part of the New Mexico SIP.9 emergency due to the effects of the Necessary assurances that the state (and (F) Stationary source monitoring pollutants on the health of persons. other entities within the state system: The SIP requires the (H) Future SIP revisions: States must responsible for implementing the SIP) establishment of a system to monitor have the authority to revise their SIPs in will have adequate personnel, funding, emissions from stationary sources and response to changes in the NAAQS, and authority under state or local law to to submit periodic emission reports. It availability of improved methods for implement the SIP, and that there are no must require the installation, attaining the NAAQS, or in response to legal impediments to such maintenance, and replacement of an EPA finding that the SIP is implementation; (2) requirements equipment, and the implementation of substantially inadequate to attain the relating to state boards; and (3) other necessary steps, by owners or NAAQS. necessary assurances that the state has operators of stationary sources, to Albuquerque-Bernalillo County’s SIP responsibility for ensuring adequate monitor emissions from sources. The is a compilation of regulations, plans implementation of any plan provision SIP shall also require periodic reports and submittals that act to improve and for which it relies on local governments on the nature and amounts of emissions maintain air quality in accordance with or other entities to carry out that portion and emissions-related data from national standards. The authority to of the plan. sources, and require that the state develop or revise the SIP is based on the Both elements A and E address the correlate the source reports with authority to adopt new regulations and requirement that there is adequate emission limitations or standards revise existing regulations to meet the authority to implement and enforce the established under the CAA. These NAAQS. NMSA 1978 section 74–7–5 SIP and that there are no legal reports must be made available for gives the board the authority to perform impediments. public inspection at reasonable times. these functions. Section 74–7–5 also This i-SIP submission for the 2010 Requirements in 20.11.47 NMAC, gives the board the authority to adopt SO2 NAAQS describes the SIP Emission Inventory Requirements regulations to abate, control and regulations governing the various provide for the reporting of emissions prohibit air pollution throughout functions of personnel within the AQP inventories in a format established by Bernalillo County in accordance with and the Air Board, including the AQP on a schedule prescribed by the the State Rules Act. Nothing in New administrative, technical support, regulation. There also are SIP state Mexico’s statutory or regulatory planning, enforcement, and permitting regulations pertaining to sampling and authority prohibits Albuquerque- functions of the program. testing and requirements for reporting of Bernalillo County from revising the SIP With respect to funding, the resources emissions inventories. In addition, SIP in the event of a revision to the NAAQS. to carry out the plan are provided rules establish general requirements for The AQCA specifically requires through General Funds, Permit Fees and maintaining records and reporting revisions to the SIP if the scenarios set the CAA grant process. Permit Fees are emissions. This information is used to forth in Section 110(a)(2)(H) occur. collected under the authority of section track progress towards measuring the (I) Nonattainment areas: The CAA 74–2–7. NAAQS, developing control and section 110(a)(2)(I) requires that in the As required by the CAA and the maintenance strategies, identifying case of a plan or plan revision for areas Environmental Improvement Act (EIA), sources and general emission levels, and designated as nonattainment areas, the SIP stipulates that any members of determining compliance with SIP states must meet applicable the board or body, or the head of an regulations and additional EPA requirements of part D of the CAA, agency with similar powers, adequately requirements. relating to SIP requirements for disclose any potential conflicts of (G) Emergency authority: The SIP designated nonattainment areas. interest. NMSA 1978 section 74–1–4 must provide for authority to address As noted earlier, EPA does not expect provides the Air Board contain at least infrastructure SIP submissions to a majority of members who represent 9 Albuquerque/Bernalillo County SIP http:// address subsection (I). The specific SIP yosemite.epa.gov/r6/Sip0304.nsf/ the public interest and do not derive home!OpenView&Start=1&Count=30&Collapse= submissions for designated any significant portion of their income 4.4#4.4 or https://www.law.cornell.edu/cfr/text/40/ nonattainment areas, as required under from persons subject to or who appear 52.1620. CAA title I, part D, are subject to

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different submission schedules than Albuquerque-Bernalillo County, New control agency for all purposes under those for section 110 infrastructure Mexico SIP requirements relating to federal legislation relating to pollution. elements. Instead, EPA will take action visibility and regional haze are not The department is required to ‘‘advise, on part D attainment plan SIP affected when EPA establishes or revises consult, contract and cooperate with submissions through a separate a NAAQS. Therefore, EPA believes that local authorities, other states, the federal rulemaking process governed by the there are no new visibility protection government and other interested requirements for nonattainment areas, requirements due to the revision of the persons or groups in regard to matters as described in part D. NAAQS, and consequently there are no of common interest in the field of air (J) Consultation with government newly applicable visibility protection quality control.’’ Also see element (J) officials, public notification, PSD and obligations pursuant to infrastructure above for a discussion of the SIP’s visibility protection: The SIP must meet element J after the promulgation of a public participation process, the the following three requirements: (1) new or revised NAAQS. authority to advise and consult, and the Relating to interagency consultation (K) Air quality and modeling/data: PSD SIP’s public participation regarding certain CAA requirements; (2) The SIP must provide for performing air requirements. relating to public notification of NAAQS quality modeling, as prescribed by EPA, exceedances and related issues; and, (3) to predict the effects on ambient air III. Proposed Action prevention of significant deterioration of quality of any emissions of any NAAQS EPA is proposing to approve the June air quality and visibility protection. pollutant, and for submission of such 11, 2015, infrastructure SIP submission (1) Interagency consultation: As data to EPA upon request. from Albuquerque-Bernalillo County, required by the AQCA, there must be a AQP has the duty, authority and New Mexico, which addresses the public hearing before the adoption of technical capability to conduct air requirements of CAA sections 110(a)(1) any regulations or emission control quality modeling, pursuant to the and (2) as applicable to the 2010 SO2 requirements and all interested persons AQCA, in order to assess the effect on NAAQS. Specifically, EPA is proposing must be given a reasonable opportunity ambient air quality of relevant pollutant to approve the following infrastructure to submit data, view documents, or emissions; and can provide relevant elements: 110(a)(2)(A), (B), (C), (D), (E), argue orally or in writing and to data as part of the permitting and (F), (G), (H), (J), (K), (L), and (M). EPA examine testimony of witnesses from NAAQS implementation process. AQP is not proposing action pertaining to follows EPA guidelines for air the hearing. In addition, the AQCA section 110(a)(2)(I)—Nonattainment provides for the power and duty to dispersion modeling. Upon request, Area Plan or Plan Revisions as EPA ‘‘advise, consult, contract with and AQP will submit current and future data believes these need not be addressed in cooperate with local authorities, other relating to air quality modeling to EPA. the i-SIP. Based upon review of the states, the federal government and other (L) Permitting Fees: The SIP must state’s infrastructure SIP submissions interested persons or groups in regard to require each major stationary source to and relevant statutory and regulatory matters of common interest in the field pay permitting fees to the permitting authorities and provisions referenced in of air quality control . . .’’ Furthermore, authority, as a condition of any permit these submissions or referenced in New Mexico’s PSD SIP rules mandate required under the CAA, to cover the Albuquerque-Bernalillo County, New public participation and notification cost of reviewing and acting upon any Mexico’s SIP, EPA believes that regarding permitting applications to any application for such a permit, and, if the other state or local air pollution control permit is issued, the costs of Albuquerque-Bernalillo County, New agencies, local government officials of implementing and enforcing the terms Mexico has the infrastructure in place to the city or county where the source will of the permit. The fee requirement address all applicable required elements be located, tribal authorities, and applies until a fee program established of sections 110(a)(1) and (2) to ensure Federal Land Managers (FLMs) whose by the state pursuant to Title V of the that the 2010 SO2 NAAQS are lands may be affected by emissions from CAA, relating to operating permits, is implemented in the county. We also are the source or modification. The State’s approved by EPA. proposing to approve the State’s Transportation Conformity SIP rules The fee requirements of 20.11.2 demonstration that it meets the four also provide procedures for interagency NMAC have been approved by EPA as statutory requirements for interstate consultation, resolution of conflicts, and meeting the CAA requirements and transport of SO2 emissions. public notification. were incorporated into the IV. Statutory and Executive Order (2) Public Notification: The i-SIP Albuquerque-Bernalillo County, New Reviews provides the SIP regulatory citations Mexico SIP (45 FR 24468, April 10, requiring the Air Board to regularly 1980,). Albuquerque-Bernalillo County’s Under the CAA, the Administrator is notify the public of instances or areas in title V operating permit program required to approve a SIP submission which any NAAQS are exceeded, advise codified at 20.11.42 NMAC, Operating that complies with the provisions of the the public of the health hazard Permits, was approved by EPA on Act and applicable Federal regulations. associated with such exceedances, and September 8, 2004 (69 FR 54244–47). In 42 U.S.C. 7410(k); 40 CFR 52.02(a). enhance public awareness of measures addition, see element (E) above for the Thus, in reviewing SIP submissions, the that can prevent such exceedances and description of the mandatory collection EPA’s role is to approve state choices, ways in which the public can of permitting fees outlined in the SIP. provided that they meet the criteria of participate in efforts to improve air (M) Consultation/participation by the CAA. Accordingly, this action quality. 20.11.82 NMAC, Rulemaking affected local entities: The SIP must merely proposes to approve state law as ProceduresÐAir Quality Control Board, provide for consultation and meeting Federal requirements and does stipulates notice requirements for participation by local political not impose additional requirements rulemaking and is used as a guide for subdivisions affected by the SIP. beyond those imposed by state law. For notice requirements when adopting New Mexico State Statute Section 74– that reason, this action: SIPs. 2–5.2 State Air Pollution Control • Is not a ‘‘significant regulatory (3) PSD and Visibility Protection: The Agency; Specific Duties and Powers of action’’ subject to review by the Office PSD requirements here are the same as the Department, states that, ‘‘The of Management and Budget under those addressed under (C). The department is the state air pollution Executive Orders 12866 (58 FR 51735,

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October 4, 1993) and 13563 (76 FR 3821, AGENCY FOR INTERNATIONAL using special characters and any form of January 21, 2011); DEVELOPMENT encryption. Please note that USAID • Does not impose an information recommends sending all comments to 48 CFR Parts 722, 729, 731, and 752 collection burden under the provisions the Federal eRulemaking Portal because of the Paperwork Reduction Act (44 RIN 0412–AA78 security screening precautions have U.S.C. 3501 et seq.); slowed the delivery and dependability Various Administrative Changes and of surface mail to USAID/Washington. • Is certified as not having a Clauses to the USAID Acquisition Three days after receipt of a comment significant economic impact on a Regulation and until finalization of the action, all substantial number of small entities comments will be made available at under the Regulatory Flexibility Act (5 AGENCY: U.S. Agency for International http://www.regulations.gov for public U.S.C. 601 et seq.); Development. review without change, including any • Does not contain any unfunded ACTION: Proposed rule. personal information provided. We mandate or significantly or uniquely recommend you do not submit affect small governments, as described SUMMARY: The U.S. Agency for information that you consider in the Unfunded Mandates Reform Act International Development (USAID) Confidential Business Information (CBI) of 1995 (Pub. L. 104–4); seeks public comment on a proposed or any information that is otherwise • rule that would revise the Agency for protected from disclosure by statute. Does not have Federalism International Development Acquisition USAID will only address comments implications as specified in Executive Regulation (AIDAR) to maintain that explain why the rule would be Order 13132 (64 FR 43255, August 10, consistency with Federal and Agency inappropriate, ineffective or 1999); regulations and incorporate current and unacceptable without a change. • Is not an economically significant new USAID clauses into the regulation. Comments that are insubstantial or regulatory action based on health or DATES: Comments must be received no outside the scope of the rule will not be safety risks subject to Executive Order later than December 14, 2015. considered. 13045 (62 FR 19885, April 23, 1997); ADDRESSES: Address all comments B. Background • Is not a significant regulatory action concerning this notice to Marcelle J. USAID is seeking comments on the subject to Executive Order 13211 (66 FR Wijesinghe, Bureau for Management, proposed rule as described below: 28355, May 22, 2001); Office of Acquisition and Assistance, • FAR subpart 22.8 prohibits federal • Is not subject to requirements of Policy Division (M/OAA/P), Room 867J, contractors performing in the U.S. from Section 12(d) of the National SA–44, Washington, DC 20523–2052. discrimination with regard to race, Technology Transfer and Advancement Submit comments, identified by title of color, religion, sex, national origin, Act of 1995 (15 U.S.C. 272 note) because the action and Regulatory Information disability, age, genetic information, or application of those requirements would Number (RIN) by any of the following veteran status. As a matter of policy, the be inconsistent with the CAA; and methods: Agency encourages all USAID 1. Through the Federal eRulemaking • Does not provide EPA with the contractors performing and recruiting Portal at http://www.regulations.gov by entirely outside the United States to discretionary authority to address, as following the instructions for submitting appropriate, disproportionate human apply these same standards of comments. nondiscrimination in their workplace. health or environmental effects, using 2. By Email: Submit electronic practicable and legally permissible The provision entitled comments to both mwijesinghe@ ‘‘Nondiscrimination’’ contains language methods, under Executive Order 12898 usaid.gov and [email protected]. See (59 FR 7629, February 16, 1994). that encourages contractors performing SUPPLEMENTAL INFORMATION for file and recruiting entirely outside the In addition, the SIP is not approved formats and other information about United States to establish to apply on any Indian reservation land electronic filing. comprehensive nondiscrimination or in any other area where EPA or an 3. By Mail addressed to: USAID, polices for their workplaces. The Indian tribe has demonstrated that a Bureau for Management, Office of provision was implemented on an tribe has jurisdiction. In those areas of Acquisition & Assistance, Policy interim basis in 2012 through Agency Indian country, the proposed rule does Division, Room 867J, SA–44, policy found in ADS 302 Mandatory not have tribal implications and will not Washington, DC 20523–2052. Reference, Special Provisions for impose substantial direct costs on tribal FOR FURTHER INFORMATION CONTACT: Acquisition and is hereby formally governments or preempt tribal law as Lyudmila Bond, Telephone: 202–567– incorporated in the AIDAR without specified by Executive Order 13175 (65 4753 or Email: [email protected]. revision at 752.222–71. The Agency FR 67249, November 9, 2000). SUPPLEMENTARY INFORMATION: believes that the transfer of the clause from the internal Agency policy into the List of Subjects in 40 CFR Part 52 A. Instructions AIDAR will have no impact on Environmental protection, Air All comments must be in writing and contractors. pollution control, Incorporation by submitted through one of the methods • Section 579 of the Foreign reference, Intergovernmental relations, specified in the Addresses section Operations, Export Financing, and Reporting and recordkeeping above. All submissions must include the Related Programs Appropriations Act of requirements, Sulfur dioxide (SO2). title of the action and RIN for this FY 2003 (Pub. L. 108–7) and similar Authority: 42 U.S.C. 7401 et seq. rulemaking. Please include your name, sections in subsequent acts require title, organization, postal address, certain steps to prevent countries from Dated: October 27, 2015. telephone number, and email address in imposing taxes [defined as Value Added Samuel Coleman, the text of the message. Tax (VAT) or customs duties] on U.S. Acting Regional Administrator, Region 6. Comments submitted by email must foreign assistance. If taxes or customs [FR Doc. 2015–28353 Filed 11–10–15; 8:45 am] be included in the text of the email or duties are imposed, the foreign BILLING CODE 6560–50–P attached as a PDF file. Please avoid government must reimburse the amount

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of such taxes and duties to the U.S. regardless of the number of USAID positions which could give them access Government. The Act also requires participants. to vulnerable individuals. Often they certain reporting to Congress. The clause was implemented on an will seek employment within countries The provision at 752.229–71 entitled interim basis in 2013 through Agency with social welfare, protection, and ‘‘Reporting of Foreign Taxes’’, policy found at ADS 302 Mandatory judicial systems too weak or implemented on an interim basis in Reference, Special Provisions for underdeveloped to protect children and 2007 through Agency policy found in Acquisition and is hereby formally other vulnerable populations against ADS 302 Mandatory Reference, Special incorporated into the AIDAR without abuse and exploitation. Many USAID Provisions for Acquisition, specifies that revision. The Agency believes that the missions and projects are located in the contractor must submit certain transfer of the clause from the internal countries with ineffective systems. To reports to the Contracting Officer’s Agency policy into the AIDAR will have protect children involved in or coming Representative, with copies to the no impact on contractors. into contact with USAID programs from • relevant Embassy, the Mission, or the In support of USAID’s procurement abuse, exploitation or neglect, USAID Bureau for Management, Office of the reform and to expedite award has established Child Safeguarding Chief Financial Officer, Cash modifications that affect multiple Standards. These standards are designed Management and Payments Division. awards, the Bureau for Management, to complement the USAID Counter AIDAR part 729, subpart 729.4 and Office of Acquisition and Assistance Trafficking in Persons (C–TIP) Code of sections 729.204–70 and 752.229–70 are (M/OAA) has created a separate online Conduct by expanding the range of added to formally incorporate this portal for Implementing Partner Notices actions prohibited by USAID under the requirement into the AIDAR. The (IPN) for acquisition awards. The IPN C–TIP Code of Conduct to include Agency believes that the transfer of the Portal, located at https://sites.google. abuse, exploitation, or neglect of clause from the internal Agency policy com/site/usaidipnforacquisitions/, is the children. The mandatory requirements into the AIDAR will have no impact on single point where USAID uploads established by these standards satisfy contractors. proposed universal bilateral obligations established in the U.S. modifications for awards, which can be • The Executive Order 13589 Government Action Plan on Children in accessed electronically by registered ‘‘Promoting Efficient Spending’’ dated Adversity and the provisions of Public contractors. The IPN Portal is also used November 9, 2011, directed agencies to Law 109–95—The Assistance for to provide notices to USAID contractors reduce administrative costs by Orphans and other Vulnerable Children who register with the IPN Portal. The improving operations, increasing Act of 2005 (Pub. L. 109–95). AIDAR clause 752.7036, entitled efficiency, and cutting unnecessary The standards applicable to USAID ‘‘USAID Implementing Partner Notices contractors are implemented through a spending. To achieve savings, agencies (IPN) Portal for Acquisition’’, directs new clause at 752.7037, Child were to improve efficiencies in various contractors to register with the IPN Safeguarding. The clause requires administrative areas, including Portal. Registered contractors will contractors to: (1) Ensure compliance conference expenditures. OMB receive automatic email notifications with local child welfare and protection memorandums M–11–35 ‘‘Eliminating when the IPN Portal is updated with legislation or international standards; Excess Conference Spending and proposed award modifications and/or (2) prohibit all personnel from engaging Promoting Efficiency in Government’’ notices. Partners may download and in child abuse, exploitation, or neglect; dated September 21, 2011, and M–12– sign the proposed modification, and (3) consider child safeguarding in 12 ‘‘Promoting Efficient Spending to send it to the contracting officer for project planning and implementation; Support Agency Operations’’ dated May signature (execution) and distribution in (4) apply measures to reduce the risk of 11,2012, further instructed all agencies accordance with the terms of the clause. child abuse, exploitation, or neglect; (5) ‘‘to conduct a thorough review of the Proposed bilateral modifications promote child-safe screening procedures policies and controls associated with provided through the IPN Portal are not for personnel; and (6) establish conference-related activities and effective until the contractor and the procedures to ensure that contractor expenses’’ and to ‘‘exercise discretion contracting officer sign the personnel recognize child abuse, and judgment in ensuring that modification. The requirement to exploitation, or neglect, report and conference expenses are appropriate, register in the IPN portal applies to all investigate allegations and take necessary, and managed in a manner contracts except for orders under appropriate actions in response to such that minimizes expense to taxpayers’’. indefinite delivery contracts issued allegations. To mitigate the risk of inappropriate pursuant to (48 CFR) FAR subpart 16.5; spending, USAID revised Automated orders under Federal Supply (GSA) C. Regulatory Planning and Review Directive System (ADS) 580 on agency Schedules issued pursuant to (48 CFR) This proposed rule has been internal policies and procedures FAR subpart 8.4; and contracts and determined to be ‘‘nonsignificant’’ pertaining to conferences funded by purchase orders awarded under the under the Executive Order 12866, USAID and implemented a new clause simplified acquisitions procedures of Regulatory Planning and Review, dated entitled ‘‘Conference Planning and (48 CFR) FAR part 13. The clause was September 30, 1993 and, therefore, is Required Approvals’’, applicable to all implemented on an interim basis in July not subject to review. This proposed contracts with an anticipated need for 2014 through Agency policy found at rule is not a major rule under 5 U.S.C. USAID-funded conferences. The clause ADS 302 Mandatory Reference, Special 804. requires contractors to obtain USAID Provisions for Acquisition and is hereby approval prior to committing costs formally incorporated into the AIDAR D. Regulatory Flexibility Act related to conferences funded in whole without revision. The Agency believes The proposed rule does not establish or in part with USAID funds when: that the transfer of the clause from the a new collection of information as (1) Twenty (20) or more USAID internal agency policy into the AIDAR contemplated by the Paperwork employees are expected to attend. will have no impact on contractors. Reduction Act nor will it have an (2) The net conference expense • Research indicates that persons impact on a substantial number of small funded by USAID will exceed $100,000 with a history and proclivity to abusing entities within the meaning of the (excluding salary of employees), children will often seek professional Regulatory Flexibility Act, 5 U.S.C. 601,

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et seq. Therefore, an Initial Regulatory Department of State has published 752.222–71 Nondiscrimination Flexibility Analysis has not been guidance for implementing this section As prescribed in (48 CFR) AIDAR performed. of the Act. 722.810(b), insert the following clause (b) Contracting Officers (COs) must List of Subjects in 48 CFR Parts 722, in section I of all solicitations and insert the clause at 752.229–71, 729, 731, and 752 resulting contracts. Reporting of Foreign Taxes in section I Government procurement. of solicitations and resulting contracts Nondiscrimination (June 2012) For the reasons discussed in the that obligate or subobligate FY 2003 or FAR Part 22 and the clauses prescribed in preamble, USAID proposes to amend 48 later funds except for the following: that part prohibit contractors performing in CFR chapter 7 as set forth below: (1) Contracts funded with Operating or recruiting from the U.S. from engaging in Expense, Public Law 480 funds, or trust certain discriminatory practices. USAID is CHAPTER 7—AGENCY FOR committed to achieving and maintaining a INTERNATIONAL DEVELOPMENT funds; or (2) Contracts where there will be no diverse and representative workforce and a workplace free of discrimination. Based on SUBCHAPTER D—SOCIOECONOMIC commodity transactions in a foreign PROGRAMS law, Executive Order, and Agency policy, country over the amount of $500. USAID prohibits discrimination in its own PART 722—APPLICATION OF LABOR workplace on the basis of race, color, PART 731—CONTRACT COST religion, sex (including pregnancy and LAWS TO GOVERNMENT PRINCIPLES AND PROCEDURES ACQUISITION gender identity), national origin, disability, ■ 4. The authority citation for 48 CFR age, veteran’s status, sexual orientation, ■ 1. The authority citation for 48 CFR genetic information, marital status, parental part 731 continues to read as follows: status, political affiliation, and any other part 722 continues to read as follows: Authority: Sec. 621, Pub. L. 87–195, 75 conduct that does not adversely affect the Authority: Sec. 621, Pub. L. 87–195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. performance of the employee. USAID does Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 not tolerate any type of harassment, either 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 1979 Comp., p. 435. sexual or nonsexual, of any employee or CFR 1979 Comp., p. 435. applicant for employment. Contractors are Subpart 731.2—Contracts With required to comply with the Subpart 722.8—Equal Employment Commercial Organizations nondiscrimination requirements of the FAR. Opportunity In addition, the Agency strongly ■ 5. Add 731.205–43 to read as follows. encourages all its contractors (at all tiers) to ■ 2. Revise 722.810 to read as follows: develop and enforce comprehensive 731.205–43 Trade, business, technical and nondiscrimination policies for their 722.810 Solicitation provisions and professional activity costs—USAID workplaces that include protection on these contract clauses. conference approval requirements. expanded bases, subject to applicable law. (a) The contracting officer must insert (a) The contractor must receive prior the clause at 752.222–70, USAID written approval from the contracting (End of clause) ■ Disability Policy in section I of all officer, or the contracting officer’s 8. Add 752.229–71 to read as follows: solicitations and resulting contracts. representative (COR), if delegated in the 752.229–71 Reporting of foreign taxes. (b) The contracting officer must insert Contracting Officer’s Representative the clause at 752.222–71, As prescribed in (48 CFR) AIDAR Designation Letter, for costs related to 729.402–70, insert the following clause Nondiscrimination in section I of all conferences funded in whole or in part solicitations and resulting contracts. in section I of applicable solicitations with USAID funds when: and resulting contracts. The contracting (1) Twenty (20) or more USAID SUBCHAPTER E—GENERAL officer must insert address and point of employees are expected to attend. CONTRACTING REQUIREMENTS contact at the Embassy, Mission, or (2) The net conference expense ■ 3. Add part 729 to subchapter E to M/CFO/CMP as appropriate under funded by USAID will exceed $100,000 read as follows. section (d) of this clause. (excluding salary of employees), PART 729—TAXES regardless of the number of USAID Reporting of Foreign Taxes (July 2007) participants. Subpart 729.4—Contract Clauses (a) The contractor must annually submit a (b) Contracting officers must insert the report by April 16 of the next year. 729.402–70 Foreign contracts. clause at 752.231–72 in all USAID- (b) Contents of Report. The report must funded solicitations and contracts contain: Authority: Sec. 621, Pub. L. 87–195, 75 anticipated to include a requirement for (1) Contractor name. Stat. 445, (22 U.S.C. 2381) as amended; E.O. a USAID-funded conference. See (48 (2) Contact name with phone, fax number 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR) AIDAR 752.231–72 for the and email address. CFR 1979 Comp., p. 435. definition of a conference and specific (3) Contract number(s). requirements and procedures. (4) Amount of foreign taxes assessed by a Subpart 729.4—Contract Clauses foreign government [each foreign government SUBCHAPTER H—CLAUSES AND FORMS must be listed separately] on commodity 729.402–70 Foreign contracts. purchase transactions valued at $500 or more (a) Section 579 of the Foreign PART 752—SOLICITATION financed with U.S. foreign assistance funds Operations, Export Financing, and PROVISIONS AND CONTRACT under this agreement during the prior U.S. Related Programs Appropriations Act of CLAUSES fiscal year. FY 2003 requires certain steps to (5) Only foreign taxes assessed by the ■ prevent countries from imposing taxes 6. The authority citation for 48 CFR foreign government in the country receiving [defined as Value Added Tax (VAT) or part 752 continues to read as follows: U.S. assistance are to be reported. Foreign taxes by a third party foreign government are Authority: Sec. 621, Pub. L. 87–195, 75 customs duties] on U.S. foreign not to be reported. For example, if a Stat. 445, (22 U.S.C. 2381) as amended; E.O. assistance, or if imposed, requires the contractor performing in Lesotho using 12163, Sept. 29, 1979, 44 FR 56673; and 3 countries to reimburse the assessed foreign assistance funds should purchase CFR 1979 Comp., p. 435. taxes or duties. The Act also requires commodities in South Africa, any taxes certain reporting to Congress. The ■ 7. Add 752.222–71 to read as follows: imposed by South Africa would not be

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reported in the report for Lesotho (or South number of USAID participants. Conferences accessed electronically by registered USAID Africa). approved at the time of award will be contractors. The IPN Portal is located at (6) Any reimbursements received by the incorporated into the award. Any subsequent https://sites.google.com/site/ipnfor contractor during the period in paragraph requests for approval of conferences must be acquisitions/. (b)(4) of this clause regardless of when the submitted by the contractor to the USAID IPN Portal Administrator means the USAID foreign tax was assessed and any contracting officer representative (COR). The official designated by the M/OAA Director, reimbursements on the taxes reported in COR will obtain the required agency who has overall responsibility for managing paragraph (b)(4) of this clause received approvals and communicate such approvals the USAID Implementing Partner Notices through March 31. to the contractor in writing. Portal for Acquisition. (7) Report is required even if the contractor (c) The request for conference approval (b) By submission of an offer and execution did not pay any taxes during the reporting must include: of a contract, the Offeror/Contractor period. (1) A brief summary of the proposed event; acknowledges the requirement to: (8) Cumulative reports may be provided if (2) A justification for the conference and (1) Register with the IPN Portal if awarded the contractor is implementing more than alternatives considered, e.g., teleconferencing a contract resulting from this solicitation, and one program in a foreign country. and videoconferencing; (2) Receive universal bilateral (c) Definitions. For purposes of this clause: (3) The estimated budget by line item (e.g., modifications of this contract and general (1) Agreement includes USAID direct and travel and per diem, venue, facilitators, notices through the IPN Portal. country contracts, grants, cooperative meals, equipment, printing, access fees, (c) Procedure to register for notifications. agreements and interagency agreements. ground transportation); Go to: https://sites.google.com/site/ (2) Commodity means any material, article, (4) A list of USAID employees attending usaidipnforacquisitions/ and click the supply, goods, or equipment. and a justification for each; and the number ‘‘Register’’ button at the top of the page. (3) Foreign government includes any of other USAID-funded participants (e.g., Contractor representatives must use their foreign governmental entity. institutional contractors); official organization email address when (4) Foreign taxes means value-added taxes (5) The venues considered (including subscribing, not personal email addresses. and customs duties assessed by a foreign government-owned facility), cost (d) Processing of IPN portal modifications. government on a commodity. It does not comparison, and justification for venue (1) The contractor may access the IPN include foreign sales taxes. selected if it is not the lowest cost option; Portal at any time to review all IPN Portal (d) Where. Submit the reports to: [CO must (6) If meals will be provided to local modifications; however, the system will also insert address and point of contact at the employees (a local employee would not be in notify the contractor by email when the Embassy, Mission, or CFO/CMP as travel status), a determination that the meals USAID IPN Portal Administrator uploads a appropriate]. are a necessary expense for achieving Agency universal bilateral modification for contractor (e) Subagreements. The contractor must objectives; and review and signature. Proposed IPN Portal include this reporting requirement in all (7) A certification that strict fiscal modifications distributed through the IPN applicable subcontracts and other responsibility has been exercised in making Portal are applicable to all awards, unless subagreements. decisions regarding conference expenditures, otherwise noted in the proposed (f) For further information see http://2001- the proposed costs are comprehensive and modification. 2009.state.gov/s/d/rm/c10443.htm. represent the greatest cost advantage to the (2) Within 15 calendar days from receipt of U.S. Government, and that the proposed the notification email from the IPN Portal, (End of clause) conference representation has been limited to the contractor must do one of the following: ■ the minimum number of attendees necessary 9. Add 752.231–72 to read as follows: (i) (A) Verify applicability of the proposed to support the Agency’s mission. modification to their award(s) per the 752.231–72 Conference planning and instructions provided with each required approvals. (End of clause) ■ 10. Add 752.7036 to read as follows: modification; As prescribed in (48 CFR) AIDAR (B) Download the modification and 731.205–43, insert the following clause 752.7036 USAID Implementing Partner incorporate the following information on the in section I of all solicitations and Notices (IPN) portal for acquisition. SF30 form: Contract number, organization resulting contracts anticipated to Insert the clause at 752.7036 in name, and organization mailing address as it include a requirement for a USAID- section I of all solicitations and appears in the basic award; funded conference, as defined in the resulting contracts, except for orders (C) Sign the hardcopy version; and clause. (D) Send the signed modification (by email under indefinite delivery contracts or hardcopy) to the CO for signature. issued pursuant to (48 CFR) FAR Conference Planning and Required Note: The contractor must not incorporate Approvals (AUG 2013) subpart 16.5; orders under Federal any other changes to the IPN Portal Supply (GSA) Schedules issued modification. Bilateral modifications (a) Definitions: pursuant to (48 CFR) FAR subpart 8.4; provided through the IPN Portal are not Conference means a seminar, meeting, and contracts and purchase orders effective until the both the contractor and the retreat, symposium, workshop, training awarded under the simplified CO sign the modification; activity or other such event that requires temporary duty travel of USAID employees. acquisitions procedures of (48 CFR) (ii) Notify the Contracting Officer in For the purpose of this policy, an employee FAR part 13. writing if the modification requires is defined as a U.S. direct hire; personal negotiation of additional changes to terms USAID Implementing Partner Notices and conditions of the contract; or services contractor, including U.S. PSCs, (IPN) Portal for Acquisition (July 2014) Foreign Service National (FSN)/Cooperating (iii) Notify the Contracting Officer that the Country National (CCN) and Third Country (a) Definitions: contractor declines to sign the modification. National (TCN); or a Federal employee Universal bilateral modification means a (3) Within 30 calendar days of receipt of detailed to USAID from another government bilateral modification, as defined in FAR a signed modification from the contractor, agency. subpart 43.1, affecting all USAID awards or the CO must provide the fully executed (b) The contractor must obtain USAID a class of awards, as specified in the Agency modification to the contractor or initiate approval prior to committing costs related to notification of such modification, that discussions with the contractor. conferences funded in whole or in part with updates or incorporates new FAR or AIDAR (End of clause) USAID funds when: clauses, other terms and conditions, or ■ (1) Twenty (20) or more USAID employees special requirements. 11. Add 752.7037 to read as follows: are expected to attend. USAID Implementing Partner Notices (IPN) 752.7037 Child safeguarding standards. (2) The net conference expense funded by Portal for Acquisition (IPN Portal) means the USAID will exceed $100,000 (excluding single point where USAID uploads universal Insert the clause at 752.7037, Child salary of employees), regardless of the bilateral modifications, which can be Safeguarding Standards, in section I of

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all solicitations and contracts other than personnel and others report allegations; involved or whereby the perpetrators benefit those for commercial items. investigating and managing allegations; and in some manner. Exploitation represents a taking appropriate action in response to such form of coercion and violence that is Child Safeguarding Standards (Date) allegations, including, but not limited to, detrimental to the child’s physical or mental dismissal of personnel. (a) Implementation of activities under this health, development, education, or well- award may involve children, or personnel (b) The contractor must also include in the being. engaged in the implementation of the award code of conduct for all personnel (5) Neglect: Constitutes failure to provide may come into contact with children, which implementing USAID-funded activities, the for a child’s basic needs within USAID- could raise the risk of child abuse, child safeguarding principles in paragraphs funded activities that are responsible for the exploitation, or neglect within this award. (a)(1) through (6) of this clause. care of a child in the absence of the child’s The contractor agrees to abide by the (c) The following definitions apply for parent or guardian. following child safeguarding core principles: purposes of this clause: (6) Physical abuse: Constitutes acts or (1) Ensure compliance with host country (1) Child: A child or children are defined failures to act resulting in injury (not and local child welfare and protection as persons who have not attained 18 years of necessarily visible), unnecessary or age. legislation or international standards, unjustified pain or suffering without causing (2) Child abuse, exploitation, or neglect: whichever gives greater protection, and with injury, harm or risk of harm to a child’s Constitutes any form of physical abuse; U.S. law where applicable; health or welfare, or death. Such acts may emotional ill-treatment; sexual abuse; neglect (2) Prohibit all personnel from engaging in include, but are not limited to: Punching, child abuse, exploitation, or neglect; or insufficient supervision; trafficking; or commercial, transactional, labor, or other beating, kicking, biting, shaking, throwing, (3) Consider child safeguarding in project stabbing, choking, or hitting (regardless of planning and implementation to determine exploitation resulting in actual or potential harm to the child’s health, well-being, object used), or burning. These acts are potential risks to children that are associated considered abuse regardless of whether they with project activities and operations; survival, development, or dignity. It were intended to hurt the child. (4) Apply measures to reduce the risk of includes, but is not limited to: Any act or (7) Sexual abuse: Constitutes fondling a child abuse, exploitation, or neglect, failure to act which results in death, serious including, but not limited to, limiting physical or emotional harm to a child, or an child’s genitals, penetration, incest, rape, unsupervised interactions with children; act or failure to act which presents an sodomy, indecent exposure, and exploitation prohibiting exposure to pornography; and imminent risk of serious harm to a child. through prostitution or the production of complying with applicable laws, regulations, (3) Emotional abuse or ill treatment: pornographic materials. or customs regarding the photographing, Constitutes injury to the psychological (d) The contractor must insert this clause filming, or other image-generating activities capacity or emotional stability of the child in all subcontracts under this award. of children; caused by acts, threats of acts, or coercive (5) Promote child-safe screening tactics. Emotional abuse may include, but is (End of clause) procedures for personnel, particularly not limited to: Humiliation, control, Dated: August 25, 2015. personnel whose work brings them in direct isolation, withholding of information, or any Deborah Broderick, contact with children; and other deliberate activity that makes the child Acting Chief Acquisition Officer. (6) Have a procedure for ensuring that feel diminished or embarrassed. personnel and others recognize child abuse, (4) Exploitation: Constitutes the abuse of a [FR Doc. 2015–27977 Filed 11–10–15; 8:45 am] exploitation, or neglect; mandating that child where some form of remuneration is BILLING CODE 6116–01–P

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Notices Federal Register Vol. 80, No. 218

Thursday, November 12, 2015

This section of the FEDERAL REGISTER phone at 530–621–5280 or via email at DEPARTMENT OF AGRICULTURE contains documents other than rules or [email protected]. proposed rules that are applicable to the Rural Utilities Service public. Notices of hearings and investigations, Individuals who use committee meetings, agency decisions and telecommunication devices for the deaf Information Collection Activity; rulings, delegations of authority, filing of (TDD) may call the Federal Information Comment Request petitions and applications and agency Relay Service (FIRS) at 1–800–877–8339 statements of organization and functions are between 8:00 a.m. and 8:00 p.m., AGENCY: Rural Utilities Service, USDA. examples of documents appearing in this Eastern Standard Time, Monday ACTION: Notice and request for section. through Friday. comments. SUPPLEMENTARY INFORMATION: The SUMMARY: In accordance with the DEPARTMENT OF AGRICULTURE purpose of the meeting is to: Paperwork Reduction Act of 1995 (44 1. Provide a public forum; U.S.C. Chapter 35, as amended), the Forest Service Rural Utilities Service (RUS) invites 2. Reconnect with RAC members; El Dorado County Resource Advisory comments on this information Committee 3. Present summary report of collection for which RUS intends to previously authorized RAC projects; request approval from the Office of AGENCY: Forest Service, USDA. 4. Define this year’s process for Management and Budget (OMB). ACTION: Notice of meeting. proposal consideration and selection; DATES: Comments on this notice must be and received by January 11, 2016. SUMMARY: The El Dorado County 5. Discuss recruiting replacement FOR FURTHER INFORMATION CONTACT: Resource Advisory Committee (RAC) RAC members. Thomas P. Dickson, Acting Director & will meet in Placerville, California. The Funds Control Officer, Program committee is authorized under the The meeting is open to the public. Development and Regulatory Analysis, Secure Rural Schools and Community The agenda will include time for people USDA Rural Development, 1400 Self-Determination Act (the Act) and to make oral statements of three minutes Independence Ave. SW., STOP 1522, operates in compliance with the Federal or less. Individuals wishing to make an Room 5164 South Building, Advisory Committee Act. The purpose oral statement should request in writing Washington, DC 20250–1522. of the committee is to improve at least 7 days in advance of the meeting Telephone: (202) 690–4492. FAX: (202) collaborative relationships and to date to be scheduled on the agenda. 720–8435. Email: Thomas.Dickson@ provide advice and recommendations to Anyone who would like to bring related wdc.usda.gov. the Forest Service concerning projects matters to the attention of the committee SUPPLEMENTARY INFORMATION: The Office and funding consistent with the title II may file written statements with the of Management and Budget’s (OMB) of the Act. RAC information can be committee staff before or after the regulation (5 CFR 1320) implementing found at the following Web site: meeting. Written comments and provisions of the Paperwork Reduction www.fs.usda.gov/eldorado. requests for time for oral comments Act of 1995 (Pub. L. 104–13) requires DATES: The meeting will be held at 6 must be sent to Jennifer Chapman, RAC that interested members of the public p.m. on December 14–15, 2015. Coordinator, Eldorado NF Supervisor’s and affected agencies have an All RAC meetings are subject to Office, 100 Forni road, Placerville, opportunity to comment on information cancellation. For status of meeting prior California 95667; by email to collection and recordkeeping activities to attendance, please contact the person [email protected], or via (see 5 CFR 1320.8(d)). This notice listed under FOR FURTHER INFORMATION facsimile to 530–621–5297. identifies an information collection that CONTACT. Meeting Accommodations: If you are RUS is submitting to OMB for ADDRESSES: The meeting will be held at a person requiring reasonable extension. the El Dorado Center of Folsom Lake accommodation, please make requests Comments are invited on: (a) Whether College, Community Room, 6699 in advance for sign language the proposed collection of information is necessary for the proper performance Campus Drive, Placerville, California. interpreting, assistive listening devices of the functions of the Agency, Written comments may be submitted or other reasonable accommodation for including whether the information will as described under SUPPLEMENTARY access to the facility or proceedings by have practical utility; (b) the accuracy of INFORMATION. All comments, including contacting the person listed in the the Agency’s estimate of the burden of names and addresses when provided, section titled FOR FURTHER INFORMATION the proposed collection of information are placed in the record and are CONTACT. All reasonable including the validity of the available for public inspection and accommodation requests are managed methodology and assumptions used; (c) copying. The public may inspect on a case by case basis. ways to enhance the quality, utility and comments received at Eldorado National clarity of the information to be Forest (ENF) Supervisor’s Office. Please Dated: November 5, 2015. collected; and (d) ways to minimize the call ahead to facilitate entry into the Laurence Crabtree, burden of the collection of information building. Forest Supervisor. on those who are to respond, including [FR Doc. 2015–28717 Filed 11–10–15; 8:45 am] FOR FURTHER INFORMATION CONTACT: through the use of appropriate Jennifer Chapman, RAC Coordinator, by BILLING CODE 3411–15–P automated, electronic, mechanical, or

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other technological collection Dated: November 4, 2015. the Decennial Census and Decennial techniques or other forms of information Brandon McBride, Census Tests. In addition, the BC–170A technology. Comments may be sent to: Administrator, Rural Utilities Service. may be used when applying for Thomas P. Dickson, Acting Director, [FR Doc. 2015–28731 Filed 11–10–15; 8:45 am] temporary/permanent office and field Program Development and Regulatory BILLING CODE P positions (clerks, field representatives, Analysis, Rural Utilities Service, U.S. supervisors) on a recurring survey in Department of Agriculture, 1400 one of the Census Bureau’s six Regional Independence Ave. SW., STOP 1522, DEPARTMENT OF COMMERCE Offices (ROs) throughout the United Room 5164 South Building, States. The Form BC–170B is used for Washington, DC 20250–1522. Census Bureau special censuses for temporary field and Telephone: (202) 690–4492, FAX: (202) office positions (enumerators, clerks, 720–8435. Email: Thomas.Dickson@ Proposed Information Collection; supervisors). wdc.usda.gov. Comment Request; Census The use of this form is limited to only Title: Deferment of RUS Loan Employment Inquiry situations which require the establishment of a temporary office and/ Payments for Rural Development AGENCY: U.S. Census Bureau, or involve special, one-time or recurring Projects. Commerce. survey operations at one of the ROs. The OMB Control Number: 0572–0097. ACTION: Notice. form has been demonstrated to meet our Type of Request: Extension of recruitment needs for temporary SUMMARY: The Department of currently approved information workers and requires significantly less Commerce, as part of its continuing collection. burden than the Office of Personnel effort to reduce paperwork and Management (OPM) Optional Forms Abstract: The Deferment of Rural respondent burden, invites the general that are available for use by the public Utilities Service (RUS) Loan Payments public and other Federal agencies to when applying for Federal positions. for Rural Development Projects allows take this opportunity to comment on There are no proposed changes to the RUS electric and telecommunications proposed and/or continuing information BC–170A and BC–170B. borrowers to defer the payment of collections, as required by the principal and interest on any insured or Paperwork Reduction Act of 1995. Changes to the BC–170D have been direct loan made under the Rural made to help support movement from a DATES: To ensure consideration, written Electrification Act (RE Act) of 1936, as fully paper job application process to a comments must be submitted on or mostly online job application process amended (7 U.S.C. 912). The purposes before January 11, 2016. of the Deferment Program are to and to support changes to the selection encourage borrowers to invest in and ADDRESSES: Direct all written comments and hiring processes for related promote rural development and rural to Jennifer Jessup, Departmental positions. Specific changes include: job creation projects that are based on Paperwork Clearance Officer, 1. Adding a Prior Work Experience sound economic and financial analyses. Department of Commerce, Room 6616, section to collect information about This program is administered through 7 14th and Constitution Avenue NW., prior work experience. CFR 1703, subpart H. The burden Washington, DC 20230 (or via the 2. Deleting background information required by this collection consists of Internet at [email protected]). that was previously collected at the time information that will allow the Agency FOR FURTHER INFORMATION CONTACT: of application such as—convictions, to determine eligibility for deferment; Requests for additional information or imprisonment, probation, or parole in specific purposes of the deferment; the copies of the information collection the last 7 years; convictions by a term of the deferment; cost of the project instrument(s) and instructions should military court-martial in the past 7 and degree of participation from other be directed to Richard Liquorie at years; current charges for any violation source; and compliance with Agency [email protected]. of the law; firings from any job for any sources; and compliance with Agency SUPPLEMENTARY INFORMATION: reason, quitting after being told that you regulations and other regulation and would be fired, leaving any job by I. Abstract legal requirements. mutual agreement because of specific problems, or debarred from Federal Estimate of Burden: Public reporting The BC–170 is used to collect employment by the Office of Personnel burden for this collection of information information such as personal data and Management or any other Federal is estimated to average 1.23 hours per work experience from job applicants. agency during the past 5 years; and response. Selecting officials review the information shown on the form to delinquency on any Federal debt. Estimated Number of Respondents: 1. evaluate an applicant’s eligibility for 3. Creating an optional section on the Estimated Number of Responses per employment and to determine the best form for questions which are needed for Respondent: 9. qualified applicants to fill Census jobs. research and evaluation purposes but Estimated Total Annual Burden on The BC–170 is used throughout the not necessary for selection purposes. Respondents: 11. census and intercensal periods for the The optional section will collect the special census, one time or recurring applicant’s level of education, how the Copies of this information collection survey operations and other decennial applicant found out about the job, and can be obtained from MaryPat Daskal, pretests. The Census Bureau uses the information to help determine Program Development and Regulatory different versions of the BC–170 in whether applicants may be willing and/ Analysis, at (202) 720–7853, FAX: (202) various circumstances to collect or able to use their personal smartphone 720–8435. Email: MaryPat.Daskal@ appropriate data from applicants. for work. wdc.usda.gov. Applicants completing the form BC– 4. Adding questions to gain more All responses to this notice will be 170D for a census related position are detail about current Federal, State, summarized and included in the request applying for temporary jobs in office Local, or Tribal government for OMB approval. All comments will and field positions (clerks, enumerators, employment, which could pose a also become a matter of public record. recruiting assistants, supervisors) during conflict of interest with census jobs.

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5. Adding categories to clarify the Dated: November 6, 2015. Dated: November 5, 2015. type of work that an applicant might be Glenna Mickelson, Elizabeth Whiteman, interested in. Management Analyst, Office of the Chief Acting Executive Secretary. 6. Clarifying and updating Information Officer. [FR Doc. 2015–28760 Filed 11–10–15; 8:45 am] instructions on the cover pages of the [FR Doc. 2015–28704 Filed 11–10–15; 8:45 am] BILLING CODE 3510–DS–P form and item specific instructions, and BILLING CODE 3510–07–P the privacy act statement. 7. Reformatting/rewording questions/ DEPARTMENT OF COMMERCE items for clarification purposes. DEPARTMENT OF COMMERCE 8. Formatting of questions for Foreign-Trade Zones Board Foreign-Trade Zones Board collection on a paper form and [B–74–2015] electronic online job application. [B-73-2015] II. Method of Collection Foreign-Trade Zone 191—Palmdale, Foreign-Trade Zone 102—St. Louis, California; Application for The Census Bureau requests Missouri; Application for Subzone; H- Reorganization under Alternative Site continued Office of Management and J Enterprises, Inc./H-J International, Framework Budget (OMB) approval for the BC– Inc.; High Ridge, Missouri 170A, BC–170B, and the BC–170D, An application has been submitted to Census Employment Inquiry, along with An application has been submitted to the Foreign-Trade Zones (FTZ) Board by modifications to the paper form BC– the Foreign-Trade Zones (FTZ) Board by the City of Palmdale, California, grantee 170D and the implementation of an the St. Louis County Port Authority, of FTZ 191, requesting authority to online job application process, which grantee of FTZ 102, requesting subzone reorganize the zone under the will collect the same information as status for the facilities of H-J alternative site framework (ASF) presented on the BC–170D. Enterprises, Inc./H-J International, Inc., adopted by the FTZ Board (15 CFR located in High Ridge, Missouri. The 400.2(c)). The ASF is an option for III. Data application was submitted pursuant to grantees for the establishment or OMB Control Number: 0607–0139. the provisions of the Foreign-Trade reorganization of zones and can permit Form Number(s): BC–170A, BC–170B, Zones Act, as amended (19 U.S.C. 81a– significantly greater flexibility in the and BC–170D. 81u), and the regulations of the FTZ designation of new subzones or ‘‘usage- Type of Review: Regular submission. Board (15 CFR part 400). It was formally driven’’ FTZ sites for operators/users Affected Public: Individuals or docketed on November 5, 2015. located within a grantee’s ‘‘service area’’ Households. The proposed subzone would consist in the context of the FTZ Board’s Estimated Number of Respondents: of the following sites: Site 1 (11.81 standard 2,000-acre activation limit for 70,000. acres)—3010 High Ridge Boulevard, a zone. The application was submitted Estimated Time per Response: 15 High Ridge; and, Site 2 (15.18 acres)— pursuant to the Foreign-Trade Zones minutes. 6217 State Road PP, High Ridge. A Act, as amended (19 U.S.C. 81a–81u), Estimated Total Annual Burden notification of proposed production and the regulations of the Board (15 CFR Hours: 17,500. activity has been submitted and is being part 400). It was formally docketed on Estimated Total Annual Cost to processed under 15 CFR 400.37 (Doc. B– November 5, 2015. Public: $0. 68–2015). FTZ 191 was approved by the FTZ Respondent's Obligation: Required to In accordance with the FTZ Board’s Board on January 15, 1993 (Board Order obtain or retain benefits. regulations, Camille Evans of the FTZ 628, 58 FR 6614, February 1, 1993) and Legal Authority: Title 13 U.S.C., Staff is designated examiner to review expanded on November 4, 2002 (Board Chapter 1, Subchapter II. the application and make Order 1252, 67 FR 69715, November 19, 2002) and January 22, 2004 (Board IV. Request for Comments recommendations to the FTZ Board. Public comment is invited from Order 1318, 69 FR 6252, February 10, Comments are invited on: (a) Whether interested parties. Submissions shall be 2004). the proposed collection of information addressed to the FTZ Board’s Executive The current zone includes the is necessary for the proper performance Secretary at the address below. The following sites: Site 1 (800 acres)— of the functions of the agency, including closing period for their receipt is Lockheed Martin Aeronautics Project/ whether the information shall have December 22, 2015. Rebuttal comments Palmdale Regional Airport, Sierra practical utility; (b) the accuracy of the in response to material submitted Highway and Avenue M, Palmdale; Site agency’s estimate of the burden during the foregoing period may be 2 (87 acres)—Antelope Valley Business (including hours and cost) of the submitted during the subsequent 15-day Park, 10th Street West and Avenue M, proposed collection of information; (c) period to January 6, 2016. Palmdale; Site 3 (30 acres)—Freeway ways to enhance the quality, utility, and A copy of the application will be Business Center, West Avenue N and clarity of the information to be available for public inspection at the 12th Street West, Palmdale; Site 4 (70 collected; and (d) ways to minimize the Office of the Executive Secretary, acres)—Palmdale Trade & Commerce burden of the collection of information Foreign-Trade Zones Board, Room Center, Avenue Q and 5th Street West, on respondents, including through the 21013, U.S. Department of Commerce, Palmdale; Site 5 (118. 2 acres)—Fairway use of automated collection techniques 1401 Constitution Avenue NW., Business Park, Division Street and or other forms of information Washington, DC 20230–0002, and in the Avenue O, Palmdale; Site 6 (140 technology. ‘‘Reading Room’’ section of the FTZ acres)—Sierra Gateway Center, Sierra Comments submitted in response to Board’s Web site, which is accessible Highway and Avenue O–8, Palmdale; this notice will be summarized and/or via www.trade.gov/ftz. Site 7 (15 acres)—Pacific Business Park, included in the request for OMB For further information, contact 30th Street East and Avenue Q, approval of this information collection; Camille Evans at Palmdale; Site 8 (20 acres) Winnell they also will become a matter of public [email protected] or (202) 482– Industrial Park, 3rd Street East and record. 2350. Avenue P, Palmdale; Site 9 (33 acres)—

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Park One Industrial Center, 10th Street at [email protected] or (202) RMB Fasteners Ltd., and IFI & Morgan East and Avenue P, Palmdale; Site 10 482–0862. Ltd. (collectively ‘‘RMB/IFI Group’’), (40 acres)—California City Industrial Dated: November 5, 2015. Gem-Year Industrial Co., Ltd. (‘‘Gem- Park, Lindbergh Boulevard and Gnatt Elizabeth Whiteman, Year’’), Hubbell Power Systems, Inc. Boulevard, California City; Site 11 (91 (‘‘HPS’’), and Brighton Best Acting Executive Secretary. acres)—Mojave Airport, Poole Street International (‘‘BBI’’) submitted case and Airport Boulevard, Mojave; and, [FR Doc. 2015–28761 Filed 11–10–15; 8:45 am] and rebuttal briefs. On June 12, 2015, Site 12 (2.6 acres)—AMS Fulfillment, BILLING CODE 3510–DS–P the Department extended the deadline 29010 Commerce Center Drive, for the final results to October 19, Valencia. 2015 3, and again on October 6, 2015, to DEPARTMENT OF COMMERCE The grantee’s proposed service area November 3, 2015.4 On September 9, under the ASF would be portions of Los International Trade Administration 2015, the Department held a public Angeles County, California, as described hearing. in the application. If approved, the [A–570–932] grantee would be able to serve sites Scope of the Order throughout the service area based on Certain Steel Threaded Rod From the The merchandise covered by the order companies’ needs for FTZ designation. People’s Republic of China: Final includes steel threaded rod. The subject The proposed service area is adjacent to Results of Antidumping Duty merchandise is currently classifiable the Los Angeles/Long Beach U.S. Administrative Review; 2013–2014 under subheading 7318.15.5051, 7318.15.5056, 7318.15.5090, and Customs and Border Protection port of AGENCY: Enforcement and Compliance, entry. International Trade Administration, 7318.15.2095 of the United States The applicant is requesting authority Department of Commerce. Harmonized Tariff Schedule to reorganize its zone to include existing SUMMARY: The Department of Commerce (‘‘HTSUS’’). Although the HTSUS Site 1 and Site 5 as ‘‘magnet’’ sites and (the ‘‘Department’’) published the subheadings are provided for existing Site 12 as a ‘‘usage-driven’’ site. Preliminary Results of the fifth convenience and customs purposes, our Additionally, as part of the administrative review of the written description of the scope of the reorganization, the applicant has antidumping duty order on certain steel order, which is contained in the requested that acreage be reduced at Site threaded rod from the People’s Republic accompanying Issues and Decision 1 (to 509.57 acres) and that Sites 2, 3, 1 Memorandum (‘‘I&D Memo’’), is of China (‘‘PRC’’) on May 7, 2015. We 5 4, 6, 7, 8, 9, 10 and 11 be removed from gave interested parties an opportunity to dispositive. the zone due to changed circumstances. comment on the Preliminary Results. Analysis of Comments Received The ASF allows for the possible Based upon our analysis of the We addressed all issues raised in the exemption of one magnet site from the comments and information received, we ‘‘sunset’’ time limits that generally case and rebuttal briefs by parties in this made changes to the margin calculations review in the I&D Memo. Attached to apply to sites under the ASF, and the for these final results. The final applicant proposes that Site 1 be so this notice, in Appendix I, is a list of the dumping margins are listed below in the exempted. No additional subzones/ issues which parties raised. The I&D ‘‘Final Results of Administrative usage-driven sites are being requested at Memo is a public document and is on Review’’ section of this notice. The this time. The application would have file in the Central Records Unit period of review (‘‘POR’’) is April 1, no impact on FTZ 191’s previously (‘‘CRU’’), Room B8024 of the main 2013, through March 31, 2014. authorized subzone. Department of Commerce building, as In accordance with the FTZ Board’s DATES: Effective Date: November 12, well as electronically via Enforcement regulations, Christopher Kemp of the 2015. and Compliance’s Antidumping and FTZ Staff is designated examiner to FOR FURTHER INFORMATION CONTACT: Julia Countervailing Duty Centralized evaluate and analyze the facts and Hancock or Jerry Huang, AD/CVD Electronic Service System (‘‘ACCESS’’). information presented in the application Operations, Office V, Enforcement and ACCESS is available to registered users and case record and to report findings Compliance, International Trade at http://access.trade.gov and in the and recommendations to the FTZ Board. Administration, U.S. Department of Public comment is invited from Commerce, 14th Street and Constitution 3 See Memorandum to Christian Marsh, Deputy interested parties. Submissions shall be Assistant Secretary for Antidumping and Avenue NW., Washington, DC 20230; Countervailing Duty Operations, through James addressed to the FTZ Board’s Executive telephone 202–482–1394 or 202–482– Doyle, Office Director, from Julia Hancock, Senior Secretary at the address below. The 4047, respectively. International Trade Compliance Analyst, ‘‘Certain Steel Threaded Rod from the People’s Republic of closing period for their receipt is SUPPLEMENTARY INFORMATION: January 11, 2016. Rebuttal comments in China: Extension of Deadline for Final Results of Background Administrative Review’’ (June 12, 2015). response to material submitted during 4 See Memorandum to Christian Marsh, Deputy the foregoing period may be submitted The Department published the Assistant Secretary for Antidumping and during the subsequent 15-day period to Preliminary Results on May 7, 2015.2 In Countervailing Duty Operations, through James January 26, 2016. Doyle, Office Director, from Julia Hancock, Senior accordance with 19 CFR 351.309, we International Trade Compliance Analyst, ‘‘Certain A copy of the application will be invited parties to comment on our Steel Threaded Rod from the People’s Republic of available for public inspection at the Preliminary Results. Between June 22, China: Extension of Deadline for Final Results of Office of the Executive Secretary, 2015, and July 13, 2015, Vulcan Administrative Review’’ (October 6, 2015). Foreign-Trade Zones Board, Room Threaded Products Inc. (‘‘Petitioner’’), 5 For a full description of the scope of the order, see Memorandum from Christian Marsh, Deputy 21013, U.S. Department of Commerce, Assistant Secretary for Antidumping and 1401 Constitution Avenue NW., 1 See Certain Steel Threaded Rod from the Countervailing Duty Operations, to Paul Piquado, Washington, DC 20230–0002, and in the People's Republic of China: Preliminary Results of Assistant Secretary for Enforcement and ‘‘Reading Room’’ section of the FTZ the Antidumping Duty Administrative Review; Compliance, ‘‘Issues and Decision Memorandum for 2013±2014, 80 FR 26222 (May 7, 2015) the Final Results of Fifth Antidumping Duty Board’s Web site, which is accessible (‘‘Preliminary Results’’) and accompanying Administrative Review: Certain Steel Threaded Rod via www.trade.gov/ftz. For further Preliminary Decision Memorandum. from the People’s Republic of China’’ (November 3, information, contact Christopher Kemp 2 Id. 2015) (‘‘I&D Memo’’).

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CRU. In addition, a complete version of average dumping margin by dividing the be the PRC-Wide rate of 206 percent; the I&D Memo can be accessed directly total amount of dumping for reviewed and (4) for all non-PRC exporters of on the Internet at http://enforcement. sales to that party by the total sales subject merchandise which have not trade.gov/frn/index.html. The signed quantity associated with those received their own rate, the cash deposit I&D Memo and the electronic versions transactions, the Department will direct rate will be the rate applicable to the of the I&D Memo are identical in CBP to assess importer-specific PRC exporters that supplied that non- content. assessment rates based on the resulting PRC exporter. The deposit requirements per-unit rates.7 Where an importer- (or shall remain in effect until further Changes Since the Preliminary Results customer-) specific ad valorem or per- notice. Based on our review of the record and unit rate is greater than de minimis, the comments received from interested Department will instruct CBP to collect Disclosure parties regarding our Preliminary the appropriate duties at the time of We will disclose the calculations Results, we have now calculated a liquidation.8 Where an importer- (or performed within five days of the date dumping margin based on the sales data customer-) specific ad valorem or per- of publication of this notice to parties in and factors of production (‘‘FOP’’) data unit rate is zero or de minimis, the this proceeding in accordance with 19 submitted by the RMB/IFI Group. Department will instruct CBP to CFR 351.224(b). Additionally, the Department has liquidate appropriate entries without selected Thailand as the primary regard to antidumping duties.9 We Notification to Importers surrogate country and valued the RMB/ intend to instruct CBP to liquidate This notice also serves as a final IFI Group’s FOP data/movement entries containing subject merchandise reminder to importers of their exported by the PRC-wide entity at the expenses with data from Thailand. For responsibility under 19 CFR 351.402(f) PRC-wide rate. a list of all issues addressed in these to file a certificate regarding the Pursuant to the Department’s final results, please refer to Appendix I reimbursement of antidumping duties accompanying this notice. assessment practice, for entries that were not reported in the U.S. sales prior to liquidation of the relevant Final Results of Administrative Review databases submitted by companies entries during this POR. Failure to The weighted-average dumping individually examined during this comply with this requirement could margin for the administrative review is review, the Department will instruct result in the Department’s presumption as follows: CBP to liquidate such entries at the that reimbursement of antidumping PRC-wide entity rate. Additionally, if duties occurred and the subsequent Weighted- the Department determines that an assessment of doubled antidumping average exporter had no shipments of the duties. Exporter margin (percent) subject merchandise, any suspended Administrative Protective Orders entries that entered under that IFI & Morgan Ltd. and RMB Fas- exporter’s case number (i.e., at that This notice also serves as a reminder teners Ltd. (collectively ‘‘RMB/ exporter’s rate) will be liquidated at the to parties subject to administrative IFI Group’’) ...... 39.42 PRC-wide entity rate.10 protective order (‘‘APO’’) of their responsibility concerning the return or In addition, the Department continues Cash Deposit Requirements destruction of proprietary information to find that the companies identified in The following cash deposit disclosed under APO in accordance Appendix II, attached to this notice, are requirements will be effective upon with 19 CFR 351.305(a)(3), which part of the PRC-wide entity. publication of the final results of this continues to govern business administrative review for all shipments proprietary information in this segment Assessment Rates of the subject merchandise entered, or of the proceeding. Timely written Pursuant to section 751(a)(2)(A) of the withdrawn from warehouse, for notification of the return or destruction Tariff Act of 1930, as amended (the consumption on or after the publication of APO materials, or conversion to ‘‘Act’’), and 19 CFR 351.212(b), the date, as provided for by section judicial protective order, is hereby Department has determined, and U.S. 751(a)(2)(C) of the Act: (1) For the requested. Failure to comply with the Customs and Border Protection (‘‘CBP’’) exporter listed above, the cash deposit regulations and terms of an APO is a shall assess, antidumping duties on all rate will be the rate established in the violation which is subject to sanction. appropriate entries of subject final results of review (except, if the rate We are issuing and publishing these merchandise in accordance with the is zero or de minimis, i.e., less than 0.5 final results of administrative review in final results of this review. The percent, a zero cash deposit rate will be accordance with sections 751(a)(1) and Department intends to issue appropriate required for that company); (2) for 777(i) of the Act. assessment instructions directly to CBP previously investigated or reviewed PRC 15 days after publication of the final and non-PRC exporters not listed above Dated: November 2, 2015. results of this administrative review. that have separate rates, the cash Paul Piquado, Where the respondent reported deposit rate will continue to be the Assistant Secretary for Enforcement and reliable entered values, we calculated exporter-specific rate published for the Compliance. importer (or customer)-specific ad most recent period; (3) for all PRC Appendix I—Issues and Decision valorem rates by aggregating the exporters of subject merchandise which Memorandum dumping margins calculated for all U.S. have not been found to be entitled to a sales to each importer (or customer) and separate rate, the cash deposit rate will I. Summary dividing this amount by the total II. Scope 7 Id. III. Background entered value of the sales to each IV. Determination of the Methodology for the importer (or customer).6 Where the 8 Id. 9 RMB/IFI Group Department calculated a weighted- See 19 CFR 351.106(c)(2). 10 See Non-Market Economy Antidumping V. Discussion of the Issues Proceedings: Assessment of Antidumping Duties, 76 Comment 1: Application of Total Adverse 6 See 19 CFR 351.212(b)(1). FR 65694 (October 24, 2011). Facts Available (‘‘AFA’’) to Gem-Year

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Comment 2: Application of the PRC-Wide Operations, Office IV, or Toni Page profile of the bars; and (5) whether or Rate to Gem-Year and Not Granting a (CVD Order), AD/CVD Operations, not they are galvanized, painted, coated, Separate Rate Office VII, Enforcement and clad or plated. Steel grating is also Comment 3: Opportunity To Submit Compliance, International Trade commonly referred to as ‘‘bar grating,’’ Information on Corroborating PRC-Wide although the components may consist of Rate Administration, U.S. Department of Comment 4: Application of Total AFA to Commerce, 14th Street and Constitution steel other than bars, such as hot-rolled the RMB/IFI Group Avenue NW., Washington, DC 20230; sheet, plate, or wire rod. Comment 5: Application of the PRC-Wide telephone: (202) 482–0167 or (202) 482– The scope of the orders excludes Rate to the RMB/IFI Group and Not 1398, respectively. expanded metal grating, which is Granting a Separate Rate SUPPLEMENTARY INFORMATION: comprised of a single piece or coil of Comment 6: Selection of Surrogate Country sheet or thin plate steel that has been Comment 7: Surrogate Value for Steel Wire Background slit and expanded, and does not involve Rod and Round Bar On June 1, 2015, the Department welding or joining of multiple pieces of Comment 8: Surrogate Value for Labor initiated 1 and the ITC instituted 2 five- steel. The scope of the orders also Comment 9: Surrogate Financial Ratios excludes plank type safety grating VI. Conclusion year (sunset) reviews of the AD and CVD orders on steel grating from the which is comprised of a single piece or Appendix II—Companies Subject to the PRC,3 pursuant to section 751(c) of the coil of sheet or thin plate steel, typically Administrative Review That Are Part of Tariff Act of 1930, as amended (the Act). in thickness of 10 to 18 gauge, that has the PRC-Wide Entity As a result of its reviews, the been pierced and cold formed, and does not involve welding or joining of Fastco (Shanghai) Trading Co., Ltd. Department determined that revocation Gem-Year Industrial Co., Ltd. of the AD order would likely lead to multiple pieces of steel. Haiyan Dayu Fasteners Co., Ltd. continuation or recurrence of dumping Certain steel grating that is the subject Jiaxing Brother Standard Part. and that revocation of the CVD order of the orders is currently classifiable in Midas Union Co., Ltd. would likely lead to continuation or the Harmonized Tariff Schedule of the New Pole Power System Co. Ltd. recurrence of net countervailable United States (HTSUS) under Shanghai P&J International Trading Co., Ltd. subsidies. Therefore, the Department subheading 7308.90.7000. While the Zhejiang Morgan Brother Technology Co. HTSUS subheading is provided for Ltd. notified the ITC of the magnitude of the margins and the subsidy rates likely to convenience and customs purposes, the [FR Doc. 2015–28751 Filed 11–10–15; 8:45 am] written description of the scope of the BILLING CODE 3510–DS–P prevail should the orders be revoked, pursuant to sections 751(c)(1) and orders is dispositive. 752(b) and (c) of the Act.4 Continuation of the Orders DEPARTMENT OF COMMERCE On November 4, 2015, the ITC As a result of the determinations by published its determination that the Department and the ITC that International Trade Administration revocation of the AD and CVD orders on revocation of the AD order would likely steel grating from the PRC would likely [A–570–947; C–570–948] lead to a continuation or recurrence of lead to continuation or recurrence of dumping and material injury to an Certain Steel Grating From the material injury to an industry in the industry in the United States, and People’s Republic of China: United States within a reasonably revocation of the CVD order would Continuation of the Antidumping Duty foreseeable time, pursuant to section likely lead to continuation or recurrence 5 Order and Countervailing Duty Order 751(c) of the Act. of countervailable subsidies and material injury to an industry in the AGENCY: Enforcement and Compliance, Scope of the Orders United States, pursuant to section International Trade Administration, The products covered by these orders 751(d)(2) of the Act and 19 CFR Department of Commerce. are certain steel grating, consisting of 351.218(a), the Department hereby SUMMARY: The Department of Commerce two or more pieces of steel, including orders the continuation of the AD and (the Department) and the International load-bearing pieces and cross pieces, CVD orders on steel grating from the Trade Commission (the ITC) have joined by any assembly process, PRC. U.S. Customs and Border determined that revocation of the regardless of: (1) Size or shape; (2) Protection will continue to collect AD antidumping duty (AD) order on certain method of manufacture; (3) metallurgy and CVD cash deposits at the rates in steel grating (steel grating) from the (carbon, alloy, or stainless); (4) the People’s Republic of China (PRC) would effect at the time of entry for all imports of subject merchandise. likely lead to continuation or recurrence 1 See Initiation of Five-Year (‘‘Sunset’’) Review, 80 The effective date of the continuation of dumping and material injury to an FR 31012 (June 1, 2015). 2 of the AD and CVD orders will be the industry in the United States. The See Certain Steel Grating From China; Institution of Five-Year Reviews, 80 FR 31071 (June date of publication in the Federal Department and the ITC have also 1, 2015). Register of this notice of continuation. determined that revocation of the 3 See Certain Steel Grating from the People's Pursuant to section 751(c)(2) of the Act countervailing duty (CVD) order on steel Republic of China: Antidumping Duty Order, 75 FR and 19 CFR 351.218(c)(2), the grating from the PRC would likely lead 43143 (July 23, 2010); and Certain Steel Grating Department intends to initiate the next to continuation or recurrence of net from the People's Republic of China: Countervailing Duty Order, 75 FR 43144 (July 23, 2010). five-year review of these orders not later countervailable subsidies and material 4 See Certain Steel Grating From the People's than 30 days prior to the fifth injury to an industry in the United Republic of China: Final Results of the Expedited anniversary of the effective date of this States. Therefore, the Department is First Sunset Review of the Antidumping Duty Order, continuation notice. publishing a notice of continuation for 80 FR 60119 (October 5, 2015), and Certain Steel These five-year sunset reviews and these AD and CVD orders. Grating From the People's Republic of China: Final Results of Expedited First Sunset Review of the this notice are in accordance with DATES: Effective Date: November 12, Countervailing Duty Order, 80 FR 60120 (October sections 751(c) and 751(d)(2) of the Act 2015. 5, 2015). 5 See Certain Steel Grating From the People's and published pursuant to section FOR FURTHER INFORMATION CONTACT: Erin Republic of China, 80 FR 68334 (November 4, 777(i)(1) of the Act and 19 CFR Kearney (AD Order), AD/CVD 2015). 351.218(f)(4).

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Dated: November 5, 2015. any interested party. We did not receive include certain sales in our analysis that Paul Piquado, a hearing request. were inadvertently omitted in the Preliminary Results.5 Assistant Secretary for Enforcement and Scope of the Order Compliance. Final Results of Review [FR Doc. 2015–28755 Filed 11–10–15; 8:45 am] The scope of this order covers certain The weighted-average dumping BILLING CODE 3510–DS–P welded carbon-quality light-walled steel pipe and tube, of rectangular (including margin for the period August 1, 2013, square) cross section, having a wall through July 31, 2014, is as follows: DEPARTMENT OF COMMERCE thickness of less than 4 mm. The welded carbon-quality rectangular pipe Weighted- average International Trade Administration and tube subject to the order is currently Manufacturer/exporter margin classified under the Harmonized Tariff (percent) [A–201–836] Schedule of the United States (HTSUS) Perfiles ...... 0.00 Light-Walled Rectangular Pipe and subheadings 7306.61.50.00 and Tube from Mexico: Final Results of 7306.61.70.60. The merchandise subject Antidumping Duty Administrative to the order is currently classified in the Duty Assessment Review; 2013–2014 Harmonized Tariff Schedule of the The Department will determine, and United States at subheadings U.S. Customs and Border Protection AGENCY: Enforcement and Compliance, 8504.23.0040, 8504.23.0080 and (CBP) shall assess, antidumping duties International Trade Administration, 8504.90.9540.3 on all appropriate entries in this review, Department of Commerce Analysis of Comments Received in accordance with 19 CFR 351.212(b). SUMMARY: On July 8, 2015, the Because we have calculated a zero Department of Commerce (the All issues raised in the case brief by margin for Perfiles in the final results of Department) published the preliminary Perfiles in this administrative review are this review, we will instruct CBP to results of the administrative review of addressed in the Issues and Decision liquidate the appropriate entries the antidumping duty order on light- Memorandum.4 A list of the issues that without regard to antidumping duties. walled rectangular pipe and tube from Perfiles raised and to which we The Department clarified its Mexico.1 The review covers one responded is attached to this notice as ‘‘automatic assessment’’ regulation on producer/exporter of the subject an Appendix. The Issues and Decision May 6, 2003.6 This clarification will merchandise, Perfiles y Herrajes LM, Memorandum is a public document and apply to entries of subject merchandise S.A. de C.V. (Perfiles). The period of is on-file electronically via ACCESS. during the POR produced by the review (POR) is August 1, 2013, through ACCESS is available to registered users respondent for which it did not know its July 31, 2014. As a result of our analysis at http://access.trade.gov and in the merchandise was destined for the of the comments received, these final Central Records Unit, Room B8024 of United States. In such instances, we will results differ from the Preliminary the main Department of Commerce instruct CBP to liquidate unreviewed Results. For the final weighted-average building. In addition, a complete entries at the all-others rate if there is no dumping margins, see the ‘‘Final Results version of the Issues and Decision rate for the intermediate company(ies) of Review’’ section below. Memorandum can be accessed directly involved in the transaction. For a full DATES: Effective Date: November 12, on the Internet at http://enforcement. discussion of this clarification, see the 2015. trade.gov/frn/index.html. The signed Automatic Assessment Clarification. Issues and Decision Memorandum and The Department intends to issue FOR FURTHER INFORMATION CONTACT: the electronic version of the Issues and assessment instructions directly to CBP Brian Davis or Emily Maloof, AD/CVD Decision Memorandum are identical in 41 days after publication of the final Operations, Office VI, Enforcement and content. results of this review. Compliance, International Trade Administration, U.S. Department of Changes Since the Preliminary Results Cash Deposit Requirements Commerce, 14th Street and Constitution Based on a review of the record and The following cash deposit Avenue NW., Washington, DC 20230; comments received from Perfiles requirements will be effective upon telephone: (202) 482–7924 or (202) 482– regarding our Preliminary Results, we publication of this notice for all 5649, respectively. recalculated Perfiles’ weighted-average shipments of subject merchandise SUPPLEMENTARY INFORMATION: dumping margin for these final results. entered, or withdrawn from warehouse, In particular, we revised our for consumption on or after the Background comparison program to address certain publication of these final results, as On July 8, 2015, the Department programming errors, including errors provided by section 751(a)(2) of the Act: published the Preliminary Results. In related to discounts and rebates, and to (1) The cash deposit rate for Perfiles accordance with 19 CFR account for certain insurance expenses. noted above will be the rate established 351.309(c)(1)(ii), we invited parties to We also revised our margin program to in the final results of this administrative comment on the Preliminary Results. On August 7, 2015, Perfiles submitted a 3 For a full description of the scope of the order, 5 See Memorandum from Emily Maloof to the timely case brief.2 We received no see the Memorandum from Christian Marsh, Deputy File, regarding ‘‘Analysis of Data Submitted by Assistant Secretary for Antidumping and Perfiles y Herrajes LM, S.A. de C.V. in the Final additional case or rebuttal briefs from Countervailing Duty Operations, to Paul Piquado, Results of the Administrative Review of the Assistant Secretary for Enforcement and Antidumping Duty Order on Light-Walled 1 See Light-Walled Rectangular Pipe and Tube Compliance, titled ‘‘Issues and Decision Rectangular Pipe and Tube from Mexico; 2013– from Mexico: Preliminary Results of Antidumping Memorandum for the Final Results of the 2014’’ (Perfiles Final Analysis Memorandum), dated Duty Administrative Review; 2013±2014, 80 FR Administrative Review of the Antidumping Duty November 4, 2015 at section ‘‘Changes from the 39055 (July 8, 2015) (Preliminary Results). Order on Light-Walled Rectangular Pipe and Tube Preliminary Results,’’ for further information. 2 See Letter to the Department, ‘‘Light-Walled from Mexico; 2013–2014’’ (Issues and Decision 6 See Antidumping and Countervailing Duty Rectangular Pipe and Tube from Mexico for the Memorandum), which is issued concurrent with Proceedings: Assessment of Antidumping Duties, 68 2013–2014 Review Period—Case Brief of Perfiles y and hereby adopted by this notice. FR 23954 (May 6, 2003) (Automatic Assessment Herrajes LM, S.A. de C.V.’’, dated August 7, 2015. 4 Id. Clarification).

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review; (2) for merchandise exported by Dated: November 4, 2015. find Ningbo Dasheng Hanger Industry manufacturers or exporters not covered Paul Piquado, Co., Ltd. (‘‘Ningbo Dasheng’’) is not in this administrative review but Assistant Secretary for Enforcement and eligible for separate rate status and, covered in a prior segment of the Compliance. therefore, is part of the PRC-wide entity. proceeding, the cash deposit rate will Appendix—List of Topics Discussed in the Listed below in the ‘‘Final Results of the continue to be the company specific rate Final Issues and Decision Memorandum Administrative Review’’ section of this published for the most recently notice are the final dumping margins. I. Summary completed segment of this proceeding; II. Issues The period of review (‘‘POR’’) is October (3) if the exporter is not a firm covered III. Background 1, 2013, through September 30, 2014. in this review, a prior review, or the IV. Scope of the Order DATES: Effective Date: November 12, original investigation, but the V. Discussion of Interested Party Comments 2015. manufacturer is, the cash deposit rate Comment 1: Discounts Granted on Home- FOR FURTHER INFORMATION CONTACT: will be the rate established for the most Market Sales Alexis Polovina, Alexander Komisar, or recently completed segment of this Comment 2: The Proper Universe of Sales Kathleen Marksberry, AD/CVD proceeding for the manufacturer of the Comment 3: Certain Home-Market Insurance Expenses Operations, Office V, Enforcement and subject merchandise; and (4) the cash VI. Recommendation Compliance, International Trade deposit rate for all other manufacturers [FR Doc. 2015–28752 Filed 11–10–15; 8:45 am] Administration, Department of or exporters will continue to be 3.76 BILLING CODE 3510–DS–P Commerce, 14th Street and Constitution percent, the all-others rate established Avenue NW., Washington, DC 20230; in the antidumping investigation.7 telephone: (202) 482–3927, (202) 482– These cash deposit requirements, when DEPARTMENT OF COMMERCE 7425, or (202) 482–7906, respectively. imposed, shall remain in effect until SUPPLEMENTARY INFORMATION: further notice. International Trade Administration Background Notification to Importers Regarding the [A–570–918] Reimbursement of Duties The Department published the Steel Wire Garment Hangers From the This notice also serves as a final Preliminary Results on July 15, 2015. On People’s Republic of China: Final reminder to importers of their August 24, 2015, M&B Metal Products Results of Antidumping Duty 3 responsibility under 19 CFR 351.402(f) Inc., (‘‘Petitioner’’), U.S. Distributors, Administrative Review, 2013–2014 to file a certificate regarding the Aristocraft of America LLC (‘‘Aristocraft’’), and Ningbo Dasheng reimbursement of antidumping and/or AGENCY: Enforcement and Compliance, submitted case briefs. On September 1, countervailing duties prior to International Trade Administration, 2015, Petitioner submitted a rebuttal liquidation of the relevant entries Department of Commerce. brief. On September 9, 2015, the during the POR. Failure to comply with SUMMARY: On July 15, 2015, the this requirement could result in the Department held a public hearing where Department of Commerce (‘‘the counsel for Petitioner, U.S. Distributors, Department’s presumption that Department’’) published the Preliminary reimbursement of antidumping and/or and Aristocraft, presented issues raised Results of the sixth administrative in their case and rebuttal briefs. countervailing duties occurred and the review of the antidumping duty order subsequent assessment of doubled on steel wire garment hangers from the Scope of the Order antidumping duties. People’s Republic of China (‘‘PRC’’).1 The merchandise that is subject to the Administrative Protective Order We invited parties to comment on the order is steel wire garment hangers. The Preliminary Results. Based on our products subject to the order are This notice also serves as a reminder analysis of the comments and to parties subject to administrative currently classified under U.S. information received, we made no Harmonized Tariff Schedule (‘‘HTSUS’’) protective orders (APO) of their changes to the final margin calculations responsibility concerning the return or subheadings 7326.20.0020, of Shanghai Wells Hanger Co., Ltd. 7323.99.9060, and 7323.99.9080. destruction of proprietary information (‘‘Shanghai Wells’’).2 We continue to disclosed under APO in accordance Although the HTSUS subheadings are with 19 CFR 351.305(a)(3), which provided for convenience and customs 1 See Steel Wire Garment Hangers From the purposes, the written description of the continues to govern business People's Republic of China: Preliminary Results of proprietary information in this segment Antidumping Duty Administrative Review; 2013± merchandise remains dispositive. A full of the proceeding. Timely written 2014, 80 FR 41480 (July 15, 2015) (‘‘Preliminary description of the scope of the order is notification of the return/destruction of Results’’). contained in the Issues and Decision 2 The Department previously found that Shanghai 4 APO materials, or conversion to judicial Memorandum, which is hereby Wells Hanger Co., Ltd., Hong Kong Wells Ltd. (‘‘HK adopted by this notice. protective order, is hereby requested. Wells’’) and Hong Kong Wells Ltd. (USA) (‘‘Wells Failure to comply with the regulations USA’’) are affiliated and that Shanghai Wells 3 and the terms of an APO is a Hanger Co., Ltd. and HK Wells comprise a single FabriClean Supply Inc., Best For Less Dry entity (collectively, ‘‘Shanghai Wells’’). Because Cleaners Supply LLC, Ideal Chemical & Supply sanctionable violation. there were no changes in this review to the facts Company, Laundry & Cleaners Supply Inc., Rocky We are issuing and publishing this that supported that decision, we continue to find Mountain Hanger MFG Co., Rosenberg Supply Co., notice in accordance with sections Shanghai Wells, HK Wells, and USA Wells are Ltd, and ZTN Management Company, LLC, 751(a)(1) and 777(i)(1) of the Act and 19 affiliated and that Shanghai Wells and HK Wells (collectively, ‘‘U.S. Distributors’’). The U.S. comprise a single entity. See Steel Wire Garment Distributors include importers of subject CFR 351.213(h). Hangers From the People's Republic of China: merchandise and a wholesaler of domestic like Preliminary Results and Preliminary Rescission, in product. 7 See Light-Walled Rectangular Pipe and Tube Part, of the First Antidumping Duty Administrative 4 See the Department’s Memorandum, titled from Mexico, the People's Republic of China, and Review, 75 FR 68758, 68761 (November 9, 2010), ‘‘Steel Wire Garment Hangers from the People’s the Republic of Korea: Antidumping Duty Orders; unchanged in First Administrative Review of Steel Republic of China: Issues and Decision Light-Walled Rectangular Pipe and Tube from the Wire Garment Hangers From the People's Republic Memorandum for the Final Results of the Sixth Republic of Korea: Notice of Amended Final of China: Final Results and Final Partial Rescission Antidumping Duty Administrative Review,’’ dated Determination of Sales at Less Than Fair Value, 73 of Antidumping Duty Administrative Review, 76 FR concurrently with this notice (‘‘Issues and Decision FR 45403, 45404 (August 5, 2008). 27994, 27996 (May 13, 2011). Memorandum’’).

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Analysis of Comments Received Disclosure at that exporter’s rate) will be liquidated 15 All issues raised in the case and We will disclose the calculations at the PRC-wide rate. rebuttal briefs by interested parties in performed within five days of the date Cash Deposit Requirements this review are addressed in the Issues of publication of this notice to parties in and Decision Memorandum.5 A list of this proceeding in accordance with 19 The following cash deposit the issues which parties raised is CFR 351.224(b). requirements will be effective upon attached to this notice as an Appendix. publication of the final results of this Assessment Rates The Issues and Decision Memorandum review for shipments of the subject is a public document and is on file Pursuant to section 751(a)(2)(A) of the merchandise from the PRC entered, or electronically via Enforcement and Act and 19 CFR 351.212(b), the withdrawn from warehouse, for Compliance’s Antidumping and Department will determine, and CBP consumption on or after the publication Countervailing Duty Centralized shall assess, antidumping duties on all date, as provided by section 751(a)(2)(C) Electronic Service System (‘‘ACCESS’’). appropriate entries of subject of the Act: (1) For the companies listed ACCESS is available to registered users merchandise in accordance with the above, the cash deposit rate will be at http://access.trade.gov and to all final results of this review. The established in the final results of these parties in the Central Records Unit, Department intends to issue assessment reviews (except, if the rate is zero or de Room B8024 of the main Department of instructions to CBP 15 days after the minimis, then zero cash deposit will be Commerce building. In addition, a date of publication of these final results required); (2) for previously investigated complete version of the Issues and of review. or reviewed PRC and non-PRC exporters Decision Memorandum can be accessed Where the respondent reported not listed above that received a separate directly on the internet at http:// reliable entered values, we calculated rate in a prior segment of this www.trade.gov/enforcement/. The importer- (or customer-) specific ad proceeding, the cash deposit rate will signed Issues and Decision valorem rates by aggregating the continue to be the exporter-specific rate Memorandum and the electronic dumping margins calculated for all U.S. published for the most recent period; (3) versions of the Issues and Decision sales to each importer (or customer) and for all PRC exporters of subject Memorandum are identical in content. dividing this amount by the total merchandise that have not been found entered value of the sales to each to be entitled to a separate rate, the cash PRC-Wide Entity importer (or customer).11 Where the deposit rate will be the PRC-wide rate Shaoxing Dingli and the Shaoxing Department calculated a weighted- of 187.25 percent; and (4) for all non- Entity 6 failed to respond to the average dumping margin by dividing the PRC exporters of subject merchandise Department’s requests for information.7 total amount of dumping for reviewed which have not received their own rate, These companies, therefore, are not sales to that party by the total sales the cash deposit rate will be the rate eligible for separate rate status.8 quantity associated with those applicable to the PRC exporter that Additionally, Ningbo Dasheng failed to transactions, the Department will direct supplied that non-PRC exporter. These adequately respond to all parts of the CBP to assess importer-specific deposit requirements, when imposed, questionnaire, and therefore, is also not assessment rates based on the resulting shall remain in effect until further eligible for a separate rate.9 per-unit rates.12 Where an importer- (or notice. Accordingly, the Department finds that customer-) specific ad valorem or per- Notification to Importers the PRC-wide entity includes these unit rate is greater than de minimis, the companies. Department will instruct CBP to collect This notice also serves as a final the appropriate duties at the time of reminder to importers of their Final Results of the Administrative liquidation.13 Where an importer- (or responsibility under 19 CFR Review customer-) specific ad valorem or per- 351.402(f)(2) to file a certificate Regarding the administrative review, unit rate is zero or de minimis, the regarding the reimbursement of the following weighted-average Department will instruct CBP to antidumping duties prior to liquidation dumping margins exist for the period liquidate appropriate entries without of the relevant entries during this October 1, 2013, through September 30, regard to antidumping duties.14 review period. Failure to comply with 2014: The Department announced a this requirement could result in the refinement to its assessment practice in Department’s presumption that Weighted- NME cases. Pursuant to this refinement reimbursement of antidumping duties average occurred and the subsequent assessment Exporter margin in practice, for entries that were not (percent) reported in the U.S. sales databases of double antidumping duties. submitted by companies individually Administrative Protective Orders Shanghai Wells Hanger Co., examined during this review, the Ltd.10 ...... 33.24 Department will instruct CBP to This notice also serves as a reminder liquidate such entries at the PRC-wide to parties subject to administrative rate. Additionally, if the Department protective order (‘‘APO’’) of their 5 Id. responsibility concerning the return or 6 We selected two companies for individual determines that an exporter had no examination, however, these two companies failed shipments of the subject merchandise, destruction of proprietary information to respond. These companies are: 1) Shaoxing any suspended entries that entered disclosed under APO in accordance Dingli Metal Clotheshorse Co., Ltd., (‘‘Shaoxing under that exporter’s case number (i.e., with 19 CFR 351.305, which continues Dingli’’); and 2) Shaoxing Gangyuan Metal to govern business proprietary Manufacture (collectively, ‘‘the Shaoxing Entity’’). 10 information in this segment of the 7 See Preliminary Results, at ‘‘Respondent This rate applies to the single entity comprised Selection’’ section. of Shanghai Wells Hanger Co., Ltd., and Hong Kong proceeding. We request a timely written 8 See Initiation of Antidumping and Wells Ltd. notification of the return or destruction Countervailing Duty Administrative Reviews, 79 FR 11 See 19 CFR 351.212(b)(1). 70850, 70851 (November 28, 2014). 12 Id. 15 See Non-Market Economy Antidumping 9 See Issues and Decision Memorandum, at 13 Id. Proceedings: Assessment of Antidumping Duties, 76 Comment 1. 14 See 19 CFR 351.106(c)(2). FR 65694 (October 24, 2011).

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of APO materials, or conversion to review (POR) is November 1, 2013, Preliminary Decision Memorandum,4 judicial protective order. Failure to through October 31, 2014. remains dispositive. comply with the regulations and terms No interested party submitted Final Results of the Review of an APO is a violation which is subject comments on the preliminary results. to sanction. We made no changes to the margin We determine that a weighted-average We are issuing and publishing this calculation for the final results of this dumping margin of 0.00 percent exists administrative review and notice in review. Therefore, the final results do for entries of subject merchandise that accordance with sections 751(a)(1) and not differ from the preliminary results. were produced and/or exported by GD 777(i) of the Act. The final weighted-average dumping Affiliates S. de R.L. de C.V. and that entered, or were withdrawn from Dated: November 5, 2015. margin for Golden Dragon is listed below in the ‘‘Final Results of Review’’ warehouse, for consumption during the Paul Piquado, POR. Assistant Secretary for Enforcement and section of this notice. Compliance. FOR FURTHER INFORMATION CONTACT: Assessment Rates Elizabeth Eastwood or Dennis McClure, Appendix—Issues and Decision The Department shall determine, and AD/CVD Operations, Office II, Memorandum U.S. Customs and Border Protection Enforcement and Compliance, (CBP) shall assess, antidumping duties List of Topics Discussed in the Final Decision International Trade Administration, on all appropriate entries. Pursuant to Memorandum U.S. Department of Commerce, 14th the Final Modification for Reviews,5 Summary Street and Constitution Avenue NW., because the weighted-average dumping Background Washington, DC 20230; telephone: (202) margins for Golden Dragon is zero, we Scope of the Order 482–3874 or (202) 482–5973, will instruct CBP to liquidate the Discussion of the Issues respectively. appropriate entries without regard to Comment 1: PRC-wide Treatment for Ningbo 6 Dasheng SUPPLEMENTARY INFORMATION: antidumping duties. Comment 2: Selection of Financial For entries of subject merchandise Statements Background during the POR produced by Golden Comment 3: Whether to Adjust U.S Prices for The review covers one producer/ Dragon for which it did not know its Un-refunded Value-Added Tax (‘‘VAT’’) exporter of the subject merchandise, merchandise was destined for the Comment 4: Whether the Thai AUV for Golden Dragon. On August 10, 2015, the United States, we will instruct CBP to Corrugated Paper Is Aberrational Department published in the Federal liquidate unreviewed entries at the all- Comment 5: Whether the Department Should others rate if there is no rate for the Revise the Surrogate Value for Brokerage Register the preliminary results of administrative review of the intermediate company(ies) involved in and Handling (‘‘B&H’’) the transaction.7 Recommendation antidumping duty order on seamless The Department intends to issue [FR Doc. 2015–28757 Filed 11–10–15; 8:45 am] refined copper pipe and tube from Mexico. assessment instructions to CBP 41 days BILLING CODE 3510–DS–P after the date of publication of these We invited parties to comment on the final results of review, pursuant to 19 preliminary results of the review. No CFR 356.8(a). DEPARTMENT OF COMMERCE interested party submitted comments. The Department conducted this Cash Deposit Requirements International Trade Administration administrative review in accordance The following deposit requirements [A–201–838] with section 751 of the Tariff Act of will be effective upon publication of the 1930, as amended (the Act). notice of these final results for all Seamless Refined Copper Pipe and Scope of the Order shipments of seamless refined copper Tube From Mexico: Final Results of pipe and tube from Mexico entered, or 3 Antidumping Duty Administrative The merchandise subject to the order withdrawn from warehouse, for Review; 2013–2014 is seamless refined copper pipe and consumption on or after the publication tube. The product is currently classified date as provided by section 751(a)(2) of AGENCY: Enforcement and Compliance, under the Harmonized Tariff Schedule the Act: (1) The cash deposit rate for International Trade Administration, of the United States (HTSUS) Golden Dragon will be 0.00 percent, the Department of Commerce. subheadings 7407.10.1500, weighted average dumping margin SUMMARY: On August 10, 2015, the 7419.99.5050, 8415.90.8065, and established in the final results of this Department of Commerce (the 8415.90.8085. Although the HTSUS administrative review; (2) for Department) published the preliminary numbers are provided for convenience merchandise exported by manufacturers results of the administrative review of and customs purposes, the written or exporters not covered in this review the antidumping duty order on seamless product description, available in the but covered in a completed prior refined copper pipe and tube from segment of the proceeding, the cash 1 Mexico. The review covers one Holding (Hong Kong) International, Ltd.; (4) GD deposit rate will continue to be the producer/exporter of the subject Copper U.S.A. Inc.; (5) GD Affiliates Servicios S. de R.L. de C.V.; and (6) GD Affiliates S. de R.L. de C.V., merchandise, GD Affiliates S. de R.L. de 4 See Preliminary Results, and accompanying 2 which is collectively referred to as Golden Dragon. C.V. (Golden Dragon). The period of See, e.g., Seamless Refined Copper Pipe and Tube Preliminary Decision Memorandum at 3–4. From Mexico: Final Results of Antidumping Duty 5 See Antidumping Proceedings: Calculation of 1 See Seamless Refined Copper Pipe and Tube New Shipper Review, 77 FR 59178 (September 26, the Weighted-Average Dumping Margin and From Mexico: Preliminary Results of Antidumping 2012), and accompanying Issues and Decision Assessment Rate in Certain Antidumping Duty Duty Administrative Review; 2013±2014, 80 FR Memorandum. Proceedings; Final Modification, 77 FR 8101 47908 (August 10, 2015) (Preliminary Results), and 3 See Seamless Refined Copper Pipe and Tube (February 14, 2012) (Final Modification for accompanying Preliminary Decision Memorandum. From Mexico and the People's Republic of China: Reviews). 2 The Department previously treated GD Affiliates Antidumping Duty Orders and Amended Final 6 Id. at 8102. S. de R.L. de C.V. as part of a single entity Determination of Sales at Less Than Fair Value 7 For a full discussion, see Antidumping and including: (1) GD Copper Cooperatief U.A.; (2) Hong From Mexico, 75 FR 71070 (November 22, 2010) Countervailing Duty Proceedings: Assessment of Kong GD Trading Co. Ltd.; (3) Golden Dragon (Amended Final and Order). Antidumping Duties, 68 FR 23954 (May 6, 2003).

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company-specific rate published for the regulations and terms of an APO is a to an in-quota rate of duty, as defined most recently completed segment; (3) if violation subject to sanction. in section 702(h) of the Act, and to the exporter is not a firm covered in this publish quarterly updates to the type Notification to Interested Parties review, a prior review, or the original and amount of those subsidies. We investigation but the manufacturer is, We are issuing and publishing this hereby provide the Department’s the cash deposit rate will be the rate notice in accordance with sections quarterly update of subsidies on articles established for the most recently 751(a)(1) and 777(i) of the Act and 19 of cheese that were imported during the completed segment for the manufacturer CFR 351.213(h). periods April 1, 2015, through June 30, of the merchandise; (4) the cash deposit Dated: November 4, 2015. 2015. rate for all other manufacturers or Paul Piquado, The Department has developed, in exporters will continue to be 26.03 Assistant Secretary for Enforcement and consultation with the Secretary of percent, the all-others rate established Compliance. Agriculture, information on subsidies, in the Amended Final and Order. These [FR Doc. 2015–28754 Filed 11–10–15; 8:45 am] as defined in section 702(h) of the Act, cash deposit requirements, when being provided either directly or BILLING CODE 3510–DS–P imposed, shall remain in effect until indirectly by foreign governments on further notice. articles of cheese subject to an in-quota rate of duty. The appendix to this notice Notification to Importers DEPARTMENT OF COMMERCE lists the country, the subsidy program or This notice also serves as a final International Trade Administration programs, and the gross and net reminder to importers of their amounts of each subsidy for which responsibility under 19 CFR Quarterly Update to Annual Listing of information is currently available. The 351.402(f)(2) to file a certificate Foreign Government Subsidies on Department will incorporate additional regarding the reimbursement of Articles of Cheese Subject to an In- programs which are found to constitute antidumping duties prior to liquidation Quota Rate of Duty subsidies, and additional information on the subsidy programs listed, as the of the relevant entries during this POR. AGENCY: Enforcement and Compliance, information is developed. Failure to comply with this requirement International Trade Administration The Department encourages any could result in the Department’s Department of Commerce presumption that reimbursement of person having information on foreign DATES: antidumping duties has occurred and Effective Date: November 12, government subsidy programs which the subsequent assessment of doubled 2015. benefit articles of cheese subject to an antidumping duties. FOR FURTHER INFORMATION CONTACT: in-quota rate of duty to submit such Stephanie Moore, AD/CVD Operations, information in writing to the Assistant Administrative Protective Order Office III, Enforcement and Compliance, Secretary for Enforcement and In accordance with 19 CFR International Trade Administration, Compliance, U.S. Department of 351.305(a)(3), this notice also serves as U.S. Department of Commerce, 14th Commerce, 14th Street and Constitution a reminder to parties subject to Street and Constitution Ave. NW., Ave. NW., Washington, DC 20230. administrative protective order (APO) of Washington, DC 20230, telephone: (202) This determination and notice are in their responsibility concerning the 482–3692. accordance with section 702(a) of the return or destruction of proprietary SUPPLEMENTARY INFORMATION: Section Act. information disclosed under the APO, 702 of the Trade Agreements Act of Dated: November 4, 2015. which continues to govern business 1979 (as amended) (the Act) requires the Paul Piquado, proprietary information in this segment Department of Commerce (the Assistant Secretary for Enforcement and of the proceeding. Timely written Department) to determine, in Compliance. notification of the return or destruction consultation with the Secretary of of APO materials or conversion to Agriculture, whether any foreign Appendix judicial protective order is hereby government is providing a subsidy with Subsidy Programs on Cheese Subject to an requested. Failure to comply with the respect to any article of cheese subject In-Quota Rate of Duty

1 2 Country Program(s) Gross subsidy Net subsidy ($/lb) ($/lb)

28 European Union Member States 3 ...... European Union Restitution Payments ...... 0.00 0.00 Canada ...... Export Assistance on Certain Types of Cheese ...... 0.43 0.43 Norway ...... Indirect (Milk) Subsidy ...... 0.00 0.00 Consumer Subsidy ...... 0.00 0.00 Total ...... 0.00 0.00 Switzerland ...... Deficiency Payments ...... 0.00 0.00

[FR Doc. 2015–28758 Filed 11–10–15; 8:45 am] BILLING CODE 3510–DS–P

1 Defined in 19 U.S.C. 1677(5). 3 The 28 member states of the European Union Lithuania, Luxembourg, Malta, Netherlands, 2 Defined in 19 U.S.C. 1677(6). are: Austria, Belgium, Bulgaria, Croatia, Cyprus, Poland, Portugal, Romania, Slovakia, Slovenia, Czech Republic, Denmark, Estonia, Finland, France, Spain, Sweden, and the United Kingdom. Germany, Greece, Hungary, Ireland, Italy, Latvia,

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DEPARTMENT OF COMMERCE Professional & Business Services, Room stakeholders involved in the U.S. 11014, U.S. Department of Commerce, supply chain, with at least one International Trade Administration 1401 Constitution Avenue NW., individual representing each of the Washington, DC 20230; phone 202–482– following: supply chain firms or their Advisory Committee on Supply Chain 1135; email: [email protected]. associations; users of supply chains Competitiveness Solicitation of Please visit the Advisory Committee on (e.g., retailers, distributors, Nominations for Membership Supply Chain Competitiveness Web site manufacturers or other sectors); freight AGENCY: International Trade at: http://trade.gov/td/services/oscpb/ transportation providers; ports; and Administration, U.S. Department of supplychain/acscc/. academia. Based on the balance of Commerce SUPPLEMENTARY INFORMATION: The viewpoints currently represented on the ACTION: Notice of an opportunity to Committee has a maximum of 45 Committee, Representatives from the apply for membership on the Advisory members. The Department of Commerce retail, airport, energy, logistics and Committee on Supply Chain is seeking nominations for immediate freight forwarding, and big data analysis Competitiveness. consideration to fill up to 10 positions sectors are encouraged to apply for the on the Committee for the upcoming immediate vacancies. SUMMARY: The Department of 2015–2017 charter term, and will Other than the experts from academia, Commerce, International Trade continue to accept nominations under all members shall serve in a Administration (ITA), is requesting this notice on an on-going basis for two- representative capacity, expressing the nominations to fill vacancies on the years for consideration to fill vacancies views and interests of a U.S. company Advisory Committee on Supply Chain that may arise during the charter term. or U.S. organization, as well as its Competitiveness (Committee). The Member appointment terms run for two- particular sector. Members serving in Committee was established under the years concurrently with the Committee such a representative capacity are not Federal Advisory Committee Act, 5 charter. Members will be selected in Special Government Employees. The U.S.C. App. The Committee was first accordance with applicable Department members from academia serve as chartered on November 21, 2011, and of Commerce Guidelines based upon experts and therefore are Special renewed on November 20, 2013. The their ability to advise the Secretary of Government Employees (SGEs) and Committee has functioned effectively, Commerce on the necessary elements of shall be subject to the ethical standards and the Department has an on-going a comprehensive policy approach to applicable to SGEs. Members who serve need for consensus advice regarding supply chain competitiveness designed as SGEs must certify that they are not supply chain competitiveness. The to support U.S. export growth and Federally-registered lobbyists. Department anticipates renewing the national economic competitiveness, Each member of the Committee must Committee for another two-year term. encourage innovation, facilitate the be a U.S. citizen and not registered as The Committee advises the Secretary on movement of goods, and improve the a foreign agent under the Foreign Agents the necessary elements of a competitiveness of U.S. supply chains Registration Act. All appointments are comprehensive policy approach to for goods and services in the domestic made without regard to political supply chain competitiveness designed and global economy; and to provide affiliation. Self-nominations will be to support U.S. export growth and advice to the Secretary on regulatory accepted. national economic competitiveness, policies and programs and investment Members of the Committee will not be encourage innovation, facilitate the priorities that affect the competitiveness compensated for their services or movement of goods, and improve the of U.S. supply chains. The Committee reimbursed for their travel expenses. competitiveness of U.S. supply chains provides detailed policy and technical The Committee shall meet for goods and services in the domestic advice, information, and approximately quarterly, or as and global economy; and provides recommendations to the Secretary determined by the DFO. advice to the Secretary on regulatory regarding: Members shall serve at the pleasure of policies and programs and investment (1) National, state, or local factors in the Secretary. priorities that affect the competitiveness trade programs and policies that affect All nominations for membership on of U.S. supply chains. The Department the efficient domestic and international the Committee should provide the is seeking nominations to fill vacancies operation and competitiveness of U.S. following information: on the Committee for the upcoming global supply chains from point of (1) Name, title, and relevant contact Charter term anticipated to start in origin to destination; information (including phone, fax, and November 2015. (2) elements of national policies affecting the movement of goods, email address) of the individual DATES: Applications for immediate requesting consideration; and consideration for appointment must be infrastructure, investment, and regulatory factors that affect supply (2) An affirmative statement that the received on or before 5:00 p.m. EDT on applicant is not required to register as December 18, 2015. After that date, ITA chain competitiveness and sustainability; and a foreign agent under the Foreign Agents will continue to accept applications Registration Act of 1938. under this notice for a period of up to (3) information and data systems to generate metrics that can be used to In addition to the above requirements two years from the deadline to fill any for all nominations, nominations for vacancies that may arise. quantify and improve supply chain performance. representatives of companies, ADDRESSES: Richard Boll, Office of Members shall be selected in a organizations, and stakeholders Supply Chain, Professional & Business manner that ensures that the Committee involved in the U.S. supply chain, Services, Room 11014, U.S. Department remains balanced in terms of product including supply chain firms or their of Commerce, 1401 Constitution Avenue and service lines and reflects the associations; users of supply chains NW., Washington, DC 20230; phone diversity of the supply chain sector, (e.g., retailers, distributors, 202–482–1135; email: richard.boll@ including in terms of geographic manufacturers, or other sectors); freight trade.gov. location and company size. transportation providers; and ports, FOR FURTHER INFORMATION CONTACT: Members of the Committee shall should also provide the following Richard Boll, Office of Supply Chain, represent companies, organizations, and information:

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(1) A sponsor letter on the letterhead COMMODITY FUTURES TRADING SUPPLEMENTARY INFORMATION: Under the of the sponsoring U.S. company or U.S. COMMISSION PRA,1 Federal agencies must obtain organization to be represented, approval from the Office of Management containing a brief description why the Agency Information Collection and Budget (‘‘OMB’’) for each collection nominee should be considered for Activities: Notice of Intent To Renew of information they conduct or sponsor. membership; Collection Number 3038–0080, Annual ‘‘Collection of Information’’ is defined (2) Short biography of nominee Report for Chief Compliance Officer of in 44 U.S.C. 3502(3) and 5 CFR 1320.3 including credentials; Registrants and includes agency requests or requirements that members of the public (3) Brief description of the U.S. AGENCY: Commodity Futures Trading submit reports, keep records, or provide company or U.S. organization to be Commission. information to a third party. Section represented and its activities and size ACTION: Notice. 3506(c)(2)(A) of the PRA, 44 U.S.C. (number of employees or members and 3506(c)(2)(A), requires Federal agencies annual sales, if applicable); and SUMMARY: The Commodity Futures to provide a 60-day notice in the (4) An affirmative statement that the Trading Commission (‘‘CFTC’’ or Federal Register concerning each applicant meets all Committee ‘‘Commission’’) is announcing an proposed collection of information, eligibility requirements for opportunity for public comment on the including each proposed extension of an representative members, including that proposed collection of certain existing collection of information, the applicant represents a U.S. company information by the agency. Under the before submitting the collection to OMB or U.S. organization. Paperwork Reduction Act (‘‘PRA’’), for approval. To comply with this a. For purposes of Committee Federal agencies are required to publish requirement, the CFTC is publishing eligibility, a U.S. company is at least 51 notice in the Federal Register notice of the proposed collection of percent owned by U.S. persons. concerning each proposed collection of information listed below. b. For purposes of Committee information, including each proposed Title: Annual Report for Chief eligibility, a U.S. organization is extension of an existing collection of Compliance Officer of Registrants (OMB controlled by U.S. persons, as information, and to allow 60 days for Control No. 3038–0080). This is a determined based on its board of public comment. This notice solicits request for an extension of a currently directors (or comparable governing comments on the collections of approved information collection. body), membership, and funding information mandated by Commission Abstract: On April 3, 2012, the sources, as applicable. regulation 3.3 (Chief Compliance Commission adopted Commission Officer). regulation 3.3 (Chief Compliance In addition to the above requirements Officer) 2 under sections 4d(d) and for all nominations, nominations for DATES: Comments must be submitted on 4s(k) 3 of the Commodity Exchange Act experts from academia should also or before January 11, 2016. (‘‘CEA’’). Commission regulation 3.3 provide the following information: ADDRESSES: You may submit comments, requires each futures commission (1) A description of the nominee’s identified by ‘‘Annual Report for Chief merchant (‘‘FCM’’),4 swap dealer area(s) of expertise; Compliance Officer of Registrants,’’ and (‘‘SD’’),5 and major swap participant (2) A concise Curriculum Vitae (CV) Collection Number 3038–0080 by any of (‘‘MSP’’) 6 to designate, by filing a form or resume that covers education, the following methods: 8–R, a chief compliance officer who is experience, and relevant publications • The Agency's Web site, at http:// responsible for developing and and summarizes how this expertise comments.cftc.gov/. Follow the administering policies and procedures addresses supply chain instructions for submitting comments that fulfill certain duties of the SD, competitiveness; through the Web site. MSP, or FCM and that are reasonably (3) An affirmative statement that the • Mail: Christopher Kirkpatrick, designed to ensure the registrant’s applicant meets all Committee Secretary of the Commission, compliance with the CEA and eligibility requirements. Commodity Futures Trading Commission regulations; establishing procedures for the remediation of Please do not send company or Commission, Three Lafayette Centre, noncompliance issues identified by the organization brochures. 1155 21st Street NW., Washington, DC 20581. chief compliance officer; establishing Nominations may be emailed to • Hand Delivery/Courier: Same as procedures for the handling, [email protected], faxed to the Mail above. management response, remediation, attention of Richard Boll at 202–482– • Federal eRulemaking Portal: http:// retesting, and closing of noncompliance 2669, or mailed to Richard Boll, Office issues; preparing, signing, certifying and of Supply Chain, Professional & www.regulations.gov/. Follow the instructions for submitting comments filing with the Commission an annual Business Services, Room 11014, U.S. compliance report that contains the Department of Commerce, 1401 through the Portal. Please submit your comments using only one method. information specified in the regulations; Constitution Avenue NW, Washington, amending the annual report if material DC 20230, and must be received on or All comments must be submitted in English, or if not, accompanied by an before December 18, 2015. Nominees 1 44 U.S.C. 3501 et seq. selected for appointment to the English translation. Comments will be 2 17 CFR 3.3. Committee will be notified. posted as received to http:// 3 7 U.S.C. 6d(d) and 6s(k). www.cftc.gov. 4 Dated: November 5, 2015. For the definition of FCM, see section 1a(28) of the CEA and Commission regulation 1.3(p). 7 U.S.C. David Long, FOR FURTHER INFORMATION CONTACT: 1a(28) and 17 CFR 1.3(p). Director, Office of Supply Chain and Jacob Chachkin, Special Counsel, 5 For the definition of SD, see section 1a(49) of Professional & Business Services, November Division of Swap Dealer and the CEA and Commission regulation 1.3(ggg). 7 5, 2015. Intermediary Oversight, Commodity U.S.C. 1a(49) and 17 CFR 1.3(ggg). 6 For the definitions of MSP, see section 1a(33) of [FR Doc. 2015–28743 Filed 11–10–15; 8:45 am] Futures Trading Commission, (202) the CEA and Commission regulation 1.3(hhh). 7 BILLING CODE 3510–DR–P 418–5496, email: [email protected]. U.S.C. 1a(33) and 17 CFR 1.3(hhh).

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errors or omissions are identified; and the merits of the information collection Pertaining to Swap Data Recordkeeping maintaining records of the registrant’s request will be retained in the public and Reporting Requirements: Pre- compliance policies and procedures and comment file and will be considered as Enactment and Transition Swaps,’’ or records related to the annual report. The required under the Administrative Renewal 3038–0089, by any of the information collection obligations Procedure Act and other applicable following methods: imposed by Commission regulation 3.3 laws, and may be accessible under the • The Agency's Web site, at: http:// are essential to ensuring that FCMs, Freedom of Information Act. comments.cftc.gov/. Follow the SDs, and MSPs maintain comprehensive Burden Statement: In light of the instructions for submitting comments policies and procedures that promote contraction in the number of through the Web site. compliance with the CEA and Commission-registered FCMs since the • Mail: Christopher Kirkpatrick, Commission regulations. In particular, Commission promulgated regulation Secretary of the Commission, the Commission believes that, among 3.3, the Commission is revising its Commodity Futures Trading other things, these obligations (i) estimate of the burden for this Commission, Three Lafayette Centre, promote compliance behavior through collection. Accordingly, the respondent 1155 21st Street NW., Washington, DC periodic self-evaluation, (ii) inform the burden for this collection is estimated to 20581. Commission of possible compliance be as follows: • Hand Delivery/Courier: Same as weaknesses, (iii) assist the Commission Number of Registrants: 200. Mail above. in determining whether the registrant Estimated Average Burden Hours per • Federal eRulemaking Portal: remains in compliance with the CEA Registrant: 1006. http://www.regulations.gov/. Follow the and Commission regulations, and (iv) Estimated Aggregate Burden Hours: instructions for submitting comments help the Commission to assess whether 201,200. through the Portal. the registrant has mechanisms in place Frequency of Recordkeeping: Please submit your comments using to adequately address compliance Annually or on occasion. only one method. problems that could lead to a failure of Authority: 44 U.S.C. 3501 et seq. FOR FURTHER INFORMATION CONTACT: the registrant. With respect to the Thomas Guerin, Division of Market Dated: November 6, 2015. collection of information, the CFTC Oversight, Commodity Futures Trading invites comments on: Robert N. Sidman, Commission, 1155 21st Street NW., • Whether the proposed collection of Deputy Secretary of the Commission. (202) 734–4194, email: [email protected], information is necessary for the proper [FR Doc. 2015–28732 Filed 11–10–15; 8:45 am] and refer to OMB Control No. 3038– performance of the functions of the BILLING CODE 6351–01–P 0089. Commission, including whether the information will have a practical use; SUPPLEMENTARY INFORMATION: Under the • The accuracy of the Commission’s COMMODITY FUTURES TRADING PRA, Federal agencies must obtain estimate of the burden of the proposed COMMISSION approval from the Office of Management collection of information, including the and Budget (‘‘OMB’’) for each collection validity of the methodology and Agency Information Collection of information they conduct or sponsor. assumptions used; Activities: Notice of Intent To Renew ‘‘Collection of Information’’ is defined • Ways to enhance the quality, Collection 3038–0089, Swap Data in 44 U.S.C. 3502(3) and 5 CFR 1320.3 usefulness, and clarity of the Recordkeeping and Reporting and includes agency requests or information to be collected; and Requirements: Pre-Enactment and requirements that members of the public • Ways to minimize the burden of Transition Swaps submit reports, keep records, or provide collection of information on those who information to a third party. Section AGENCY: are to respond, including through the Commodity Futures Trading 3506(c)(2)(A) of the PRA, 44 U.S.C. use of appropriate automated electronic, Commission. 3506(c)(2)(A), requires Federal agencies mechanical, or other technological ACTION: Notice. to provide a 60-day notice in the collection techniques or other forms of Federal Register concerning each SUMMARY: The Commodity Futures information technology; e.g., permitting proposed collection of information Trading Commission (‘‘CFTC’’) is electronic submission of responses. before submitting the collection to OMB announcing an opportunity for public You should submit only information for approval. To comply with this comment on the proposed collection of that you wish to make available requirement, the CFTC is publishing certain information by the agency. publicly. If you wish the Commission to notice of the proposed collection of Under the Paperwork Reduction Act consider information that you believe is information listed below. (‘‘PRA’’), Federal agencies are required exempt from disclosure under the Title: Swap Data Recordkeeping and to publish notice in the Federal Register Freedom of Information Act, a petition Reporting Requirements: Pre-Enactment concerning each proposed collection of for confidential treatment of the exempt and Transition Swaps (OMB Control No. information and to allow 60 days for information may be submitted according 3038–0089). This is a request for public comment. This notice solicits to the procedures established in § 145.9 extension of a currently approved comments for certain swap data of the Commission’s regulations.7 information collection. The Commission reserves the right, recordkeeping and reporting Abstract: The collection of but shall have no obligation, to review, requirements imposed on the following information is needed to ensure that the pre-screen, filter, redact, refuse or entities: Swap Dealers (‘‘SDs’’), Major CFTC and other regulators have access remove any or all of your submission Swap Participants (‘‘MSPs’’), and swap to data regarding pre-enactment and from http://www.cftc.gov that it may counterparties that are neither swap transition swaps, as required by the deem to be inappropriate for dealers nor major swap participants Commodity Exchange Act as amended publication, such as obscene language. (‘‘non-SD/MSP counterparties’’). by the Dodd-Frank Wall Street Reform All submissions that have been redacted DATES: Comments must be submitted on and Consumer Protection Act (‘‘Dodd- or removed that contain comments on or before January 11, 2016. Frank Act’’). The Dodd-Frank Act ADDRESSES: You may submit comments, directed the CFTC to adopt rules 7 17 CFR 145.9. identified by ‘‘Renewal of Collection providing for the reporting of data

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relating to swaps entered into before the applicable laws, and may be accessible Estimated number of respondents: date of enactment of the Dodd-Frank under the Freedom of Information Act. 30,125. Act, the terms of which had not expired Burden Statement: Provisions of Estimated total annual burden on as of the date of enactment of the Dodd- CFTC Regulations 46.2, 46.3, 46.4, 46.8, respondents: 18,903 hours. Frank Act (‘‘pre-enactment swaps’’) and 46.10, and 46.11 result in information data relating to swaps entered into on or collection requirements within the Frequency of collection: Ongoing. after the date of enactment of the Dodd- meaning of the PRA. These regulations Authority: 44 U.S.C. 3501 et seq. required SDs, MSPs and non-SD/MSP Frank Act and prior to the compliance Dated: November 6, 2015. date specified in the the CFTC’s final counterparties to incur one-time costs to swap data reporting rules (‘‘transition establish systems and processes Robert N. Sidman, swaps’’). On May 17, 2012, the CFTC associated with swaps data Deputy Secretary of the Commission. adopted regulation 46, which imposes recordkeeping and reporting. The CFTC [FR Doc. 2015–28729 Filed 11–10–15; 8:45 am] recordkeeping and reporting estimates that SDs, MSPs, and non-SD/ BILLING CODE 6351–01–P requirements relating to pre-enactment MSP counterparties incurred a one-time and historical swaps. burden of 91,250 hours associated with With respect to the collection of part 46 recordkeeping and reporting information, the CFTC invites requirements. With respect to the DEPARTMENT OF DEFENSE comments on: ongoing reporting and recordkeeping • Whether the proposed collection of burdens associated with pre-enactment Office of the Secretary information is necessary for the proper and transition swaps, the CFTC believes performance of the functions of the that SDs, MSPs, and non-SD/MSP [Docket ID DoD–2015–OS–0124] CFTC, including whether the counterparties incur an annual time- information will have a practical use; burden of 18,903 hours. This time- U.S. Court of Appeals for the Armed • The accuracy of the CFTC’s burden represents a proportion of the Forces Proposed Rules Changes estimate of the burden of the proposed burden responents incur to operate and maintain their swap data recordkeeping collection of information, including the ACTION: Notice of Proposed Changes to validity of the methodology and and reporting systems. 17 CFR 45 imposes swap the Rules of Practice and Procedure of assumptions used; recordkeeping and reporting the United States Court of Appeals for • Ways to enhance the quality, requirements on respondents related to the Armed Forces. usefulness, and clarity of the swaps that are not pre-enactment or information to be collected; and transition swaps. The CFTC believes SUMMARY: This notice announces the • Ways to minimize the burden of that respondents use the same following proposed changes to Rules 5, collection of information on those who recordkeeping and reporting systems to 21(b)(5)(F), and 26 of the Rules of are to respond, including through the compy with both parts 45 and 46. The Practice and Procedure, United States use of appropriate automated electronic, CFTC has computed the estimated Court of Appeals for the Armed Forces. mechanical, or other technological burden for 17 CFR 46 by estimating the DATES: Comments on the proposed collection techniques or other forms of burden incurred by respondents to information technology; e.g., permitting changes must be received by December operate and maintain their swap data 14, 2015. electronic submission of responses. recordkeeping and reporting systems All comments must be submitted in and then estimating the percentage of ADDRESSES: You may submit comments, English, or if not, accompanied by an that burden associated with pre- identified by docket number and title by English translation. Comments will be enactment and transition swaps. Since any of the following methods: posted as received to http:// the enactment of 17 CFR 45, the vast • Federal eRulemaking Portal: http:// www.cftc.gov. You should submit only majority of pre-enactment and transition information that you wish to make www.regulations.gov. Follow the swaps have been terminated by the instructions for submitting comments. available publicly. If you wish the CFTC parties to the swaps or are otherwise no • to consider information that you believe longer in existence. As 17 CFR 46 only Mail: Department of Defense, Office is exempt from disclosure under the requires respondents to make ongoing of the Deputy Chief Management Freedom of Information Act, a petition reports regarding pre-enactment and Officer, Directorate of Oversight and for confidential treatment of the exempt transition swaps that continue to be in Compliance, Regulatory and Audit information may be submitted according existence, the number of reports being Matters Office, 9010 Defense Pentagon, to the procedures established in § 145.9 made pursuant to 17 CFR 46 has Washington, DC 20301–9010. 1 of the CFTC’s regulations. The CFTC declined significantly over time. As the Instructions: All submissions received reserves the right, but shall have no volume of reports made pursuant to 17 must include the agency name and obligation, to review, pre-screen, filter, CFR 46 is estimated to be very small docket number for this Federal Register redact, refuse or remove any or all of releative to the estimated volume of document. The general policy for your submission from http:// reports made pursuant to 17 CFR 45, the comments and other submissions from www.cftc.gov that it may deem to be CFTC’s burden estimate has allocated members of the public is to make these inappropriate for publication, such as the vast majority of the estimated submissions available for public obscene language. All submissions that burden to operate and maintain viewing on the Internet at http:// have been redacted or removed that respondents’ swap data recordkeeping www.regulations.gov as they are contain comments on the merits of the and reporting systems to the burden received without change, including information collection request will be estimate associated with 17 CFR 45. personal identifiers or contact retained in the public comment file and Respondents/Affected Entities: Swap information. will be considered as required under the Dealers, Major Swap Participants, and Administrative Procedure Act and other other counterparties to a swap FOR FURTHER INFORMATION CONTACT: transaction (i.e., end-user, non-SD/non- William A. DeCicco, Clerk of the Court, 117 CFR 145.9. MSP counterparties). telephone (202) 761–1448.

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Dated: November 5, 2015. acceptable. The supplement shall support of a party may be filed no later Aaron Siegel, contain: than 10 days after that party has filed its Alternate OSD Federal Register Liaison . . . (5) A direct and concise brief. If neither party is supported, the Officer, Department of Defense. argument showing why there is good brief of an amicus curiae shall be filed cause to grant the petition, no later than 10 days after the first brief Rules 5 and 21(b)(5)(F): demonstrating with particularity why is filed. Rule 5ÐScope of ReviewÐcurrently the errors assigned are materially (c) Neither the hearing nor the reads: prejudicial to the substantial rights of disposition of a case will be delayed The Court acts only with respect to the appellant. Where applicable, the pending action on a motion for leave to the findings and sentence as approved supplement to the petition shall also file an amicus curiae brief or a motion by reviewing authorities, and as indicate whether the court below has: of an amicus curiae to participate in a . . . (F) so far departed from the affirmed or set aside as incorrect in law hearing, or to await the filing of a brief accepted and usual course of judicial by a Court of Criminal Appeals, except of an amicus curiae under this rule. proceedings, or so far sanctioned such a insofar as it may take action on a departure by a court-martial or other (d) Except by the Court’s permission, certificate for review or a petition for person acting under authority of the a brief of an amicus curiae may be no review of a decision by a Court of UCMJ, as to call for an exercise of this more than one-half the maximum length Criminal Appeals on appeal by the Court’s power of supervision; or . . . authorized by Rule 24 for a brief for an United States under Article 62, UCMJ, The proposed change to Rule appellant/petitioner. If the Court grants 10 U.S.C. 862, or to grant extraordinary 21(b)(5)(F) would read: a party permission to file a longer brief, relief in aid of its jurisdiction, including . . . (F) so far departed from the that extension does not affect the length the exercise of its supervisory powers accepted and usual course of judicial of an amicus brief. over the administration of the UCMJ. proceedings or so far sanctioned such a (e) A member of the Bar of the Court The Court may specify or act on any departure by a court-martial or other who represents an amicus curiae and is issue concerning a matter of law which person acting under authority of the authorized to file a brief under materially affects the rights of the UCMJ, as to warrant review by the paragraph (a) of this rule may file a parties. Court; or . . . motion for leave to have a law student The proposed change to Rule 5 would Comment: Documents have recently enter an appearance on behalf of the read: been filed with the Court citing to the amicus curiae. To be eligible to The Court acts only with respect to supervisory power noted in the Court’s participate under this rule, a law the findings and sentence as approved Rules 5 and 21(b)(5)(F). This is student must be acting under the by reviewing authorities, and as somewhat problematic because the attorney’s supervision and the attorney affirmed or set aside as incorrect in law references to supervisory power in these and the law student must substantially by a Court of Criminal Appeals, except rules predate the Supreme Court’s comply with the requirements of Rule insofar as it may take action on a decision in Clinton v. Goldsmith, 526 13A(b)(1)–(5) and (c)(1)–(11). Argument certificate for review or a petition for U.S. 529 (1999), which rejected an by a law student granted permission to review of a decision by a Court of expansive view of the Court’s appear on behalf of an amicus curiae Criminal Appeals on appeal by the supervisory power over all aspects of may be requested by motion filed under United States under Article 62, UCMJ, military justice. Specifically the Court Rule 30. 10 U.S.C. 862, or to grant extraordinary stated: ‘‘[T]he CAAF is not given The proposed change to Rule 26 relief in aid of its jurisdiction. The Court authority, by the All Writs Act or would read: otherwise, to oversee all matters may specify or act on any issue (a) A brief of an amicus curiae may be concerning a matter of law which arguably related to military justice or to act as a plenary administrator of final filed (1) by an appellate government or materially affects the rights of the defense division of an armed service parties. judgments it has affirmed.’’ 526 U.S. 529, 536. Given Goldsmith, the broad other than that in which the case has Rule 21(b)(5)(F)ÐSupplement to references to supervisory power in the arisen, (2) by invitation of the Court, or Petition for Grant of ReviewÐcurrently rules should be deleted. That is not to (3) by motion for leave to file granted by reads: say that supervisory authority does not the Court. (b) The supplement to the petition exist, only that it is not as expansive as (b) All motions and briefs filed under shall be filed in accordance with the it was pre-Goldsmith, and its contours Rule 26(a)(3) must contain a statement applicable time limit set forth in Rule will need to be resolved in future cases. of the movant’s interest and why the 19(a)(5)(A) or (B), shall include an However, the Court’s Rules of Practice matters asserted are relevant to the Appendix containing a copy of the and Procedure should not be cited as a disposition of the case. Amicus curiae decision of the Court of Criminal source for this authority in the absence briefs filed pursuant to Rule 26(a)(3) Appeals, unpublished opinions cited in of settled case law. that bring relevant matter to the the brief, relevant extracts of rules and attention of the Court not already regulations, and shall conform to the Rule 26: brought to its attention by the parties provisions of Rules 24(b), 35A, and 37. Rule 26ÐAmicus Curiae BriefsÐ may be of considerable help to the Unless authorized by Order of the Court currently reads: Court. An amicus curiae brief that does or by motion of a party granted by the (a) A brief of an amicus curiae may be not serve this purpose burdens the Court, the supplement and any answer filed (1) by an appellate government or Court, and its filing is not favored. The thereto shall not exceed 25 pages, defense division of an armed service motion must also provide a statement as except that a supplement or answer other than that in which the case has to whether the parties consent to the containing no more than 9,000 words or arisen, (2) by invitation of the Court, or filing of the amicus curiae brief. Only an 900 lines of text is also acceptable. Any (3) by motion for leave to file granted by attorney admitted to practice as a reply to the answer shall not exceed 10 the Court. member of the Bar of the Court or an pages, except that a reply containing 4, (b) Unless otherwise ordered by the attorney appearing pro hac vice may file 000 words or 400 lines of text is also Court, a brief of an amicus curiae in an amicus curiae brief.

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(c) An amicus curiae brief submitted Comment: The first part of new Overseas EIS (OEIS) to evaluate the before the Court’s consideration of a paragraph (b) tracks similar language in potential environmental effects petition for grant of review, petition for Supreme Court Rule 37. It advises that associated with continuing to conduct extraordinary relief, writ-appeal ‘‘me too’’ briefs are not favored, and this military readiness activities, which petition, or petition for new trial may be is generally the view of all appellate consist of training activities and filed under subparagraphs (a)(1) or courts. The proposal goes on to require research, development, testing, and (a)(2), or if the Court grants leave to file that motions for leave to file, as well as evaluation (hereinafter referred to as under subparagraph (a)(3) of this rule. the amicus briefs themselves, contain a ‘‘testing’’) activities in the Atlantic Fleet (d) Unless otherwise ordered by the statement of the movant’s interest and Training and Testing (AFTT) Study Court, a brief of an amicus curiae in explain why the matters asserted in the Area. The Study Area consists of sea support of a party shall be filed no later brief are relevant to the disposition of space in and airspace over the Atlantic than 10 days after that party has filed its the case. The proposal operates Ocean along the eastern coast of North brief, supplement to the petition for differently from the practice in the America, portions of the Caribbean Sea, grant of review, petition for Article III courts of appeal in that even and the Gulf of Mexico. The AFTT extraordinary relief, writ-appeal with the consent of the parties, an Study Area begins seaward from the petition, or answer. If neither party is amicus filer must still ask for leave of mean high water line and moves east to supported, the brief of an amicus curiae the Court to file an amicus curiae brief. the 45 degree longitude line. The Study shall be filed no later than 10 days after In this way, the Court retains the Area covers approximately 2.6 million the first brief, supplement to the authority to decide all requests to file square nautical miles of ocean area, petition for grant of review, petition for amicus briefs based on its own including designated Navy operating extraordinary relief, or writ-appeal determination that the brief will be areas, warning areas, select Navy petition is filed. In the case of a petition helpful. It is believed that party consent pierside locations, and associated port for new trial, the brief of an amicus may not be an adequate filter that transit channels. curiae shall be filed no later than 10 ensures that amicus briefs are helpful to In order to both achieve and maintain days after the petitioner’s brief in the Court. While party consent is not a military readiness, the Navy proposes support of the petition has been filed guarantee that the brief will be accepted, to: with the Court. Motions for leave to file lack of consent is not a guarantee that • Conduct training and testing an amicus curiae brief under Rule it will be rejected. Rather, the Court activities at levels required to support 26(a)(3) must be filed within the time oversees all filings to be sure that Navy military readiness requirements allowed for the filing of the brief and amicus participation is warranted. beginning in 2018 into the reasonably contemporaneously with the amicus Paragraph (b) also includes a foreseeable future; and curiae brief itself. Requests for requirement that only members of the • Accommodate evolving mission extensions of time to file an amicus Court’s Bar or attorneys appearing pro requirements associated with force curiae brief will not be granted. A party hac vice may file motions for leave to structure changes, including those may file a motion under Rule 30 for file amicus curiae briefs. resulting from the development, testing, leave to reply to the brief of an amicus Paragraph (c) proposes a new rule to and ultimate introduction of new curiae. clarify that motions to file amicus curiae platforms (vessels, aircraft, and weapon (e) Neither the hearing nor the briefs can be filed in support of systems) into the fleet; thereby ensuring disposition of a case will be delayed petitions for grant of review, petitions critical Navy requirements are met. pending action on a motion for leave to for extraordinary relief, writ-appeal As part of this process the Navy will file an amicus curiae brief or a motion petitions, petitions for new trial, and seek to obtain authorization and of an amicus curiae to participate in a answers to such pleadings. permitting, as required under the hearing, or to await the filing of a brief Marine Mammal Protection Act and [FR Doc. 2015–28598 Filed 11–10–15; 8:45 am] of an amicus curiae under this rule. Endangered Species Act, respectively. (f) Except by the Court’s permission, BILLING CODE 5001–06–P The Navy invites comments on the a brief of an amicus curiae may be no scope and content of the EIS/OEIS from more than one-half the maximum length DEPARTMENT OF DEFENSE all interested parties. Comments may be authorized by Rule 24 for a brief for an provided by mail and through the EIS/ appellant/petitioner. If the Court grants Department of the Navy OEIS Web site at: http:// a party permission to file a longer brief, www.AFTTEIS.com. Mailed comments that extension does not affect the length Notice of Intent To Prepare an must be postmarked no later than of an amicus brief. Environmental Impact Statement/ January 16, 2016 and mailed to the (g) A member of the Bar of the Court Overseas Environmental Impact address below to ensure they are who represents an amicus curiae and is Statement for Navy Atlantic Fleet considered. authorized to file a brief under Training and Testing paragraph (a) of this rule may file a FOR FURTHER INFORMATION CONTACT: motion for leave to have a law student AGENCY: Department of the Navy, DoD. Lesley Dobbins-Noble, Naval Facilities Engineering Command, Code EV22LDN enter an appearance on behalf of the ACTION: Notice. amicus curiae. To be eligible to (AFTT EIS/OEIS Project Manager), 6506 participate under this rule, a law SUMMARY: Pursuant to section 102(2)(c) Hampton Boulevard, Norfolk, Virginia student must be acting under the of the National Environmental Policy 23508–1278. 703–322–4625. attorney’s supervision and the attorney Act (NEPA) of 1969, as implemented by SUPPLEMENTARY INFORMATION: The and the law student must substantially the Council on Environmental Quality Navy’s lead action proponent is comply with the requirements of Rule Regulations (40 Code of Federal Commander, U.S. Fleet Forces 13A(b)(1)–(5) and (c)(1)–(11). Argument Regulations [CFR] Parts 1500–1508), Command. Additional action by a law student granted permission to and Executive Order (EO) 12114, the proponents include Naval Sea Systems appear on behalf of an amicus curiae Department of the Navy (Navy) Command (NAVSEA), Naval Air may be requested by motion filed under announces its intent to prepare an Systems Command (NAVAIR), and the Rule 30. Environmental Impact Statement (EIS)/ Office of Naval Research (ONR). The

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Proposed Action is to conduct military activities beginning in 2018 as necessary consist of training activities and readiness activities in the AFTT Study to meet future readiness requirements. research, development, testing, and Area. These training and testing Resource areas that will be addressed evaluation (hereinafter referred to as activities are generally consistent with include, but are not limited to: ‘‘testing’’) activities in the Hawaii- those analyzed in the AFTT EIS/OEIS Biological resources (including marine Southern California Training and completed in August 2013 and are mammals and threatened and Testing (HSTT) Study Area. The Study representative of training and testing endangered species), sediments and Area consists of the in-water areas of the that the Navy has been conducting in water quality, air quality, noise, cultural Southern California (SOCAL) Range the AFTT Study Area for decades. resources, socioeconomic resources, and Complex (including San Diego Bay); in- The following range complexes fall public health and safety. water areas of Silver Strand Training within the AFTT Study Area: Northeast The scoping process will be used to Complex (SSTC); the Hawaii Range Range Complexes, Virginia Capes Range identify community concerns and local Complex (HRC); areas on the high seas Complex, Navy Cherry Point Range issues to be addressed in the EIS/OEIS. where training and sonar testing and Complex, Jacksonville Range Complex, Federal agencies, state agencies, local maintenance may occur during vessel Key West Range Complex, and Gulf of agencies, Native American Indian Tribes transit between the Hawaii and Mexico Range Complex. The testing and Nations, the public, and interested Southern California Range Complexes; ranges in the AFTT Study Area include: persons are encouraged to identify the Temporary Operating Area north Naval Undersea Warfare Center Division specific issues or topics of and west of the Hawaii Range Complex; Newport, Newport, Rhode Island; Naval environmental concern that the Navy and specific Navy pierside, port, and Surface Warfare Center (NSWC) Panama should consider. Written comments harbor locations. City Division, Panama City, Florida; and must be postmarked no later than In order to achieve and maintain NSWC Carderock Division South January 12, 2016 to ensure they are military readiness, the Navy proposes considered in the development of the to: Florida Ocean Measurement Facility, • Dania, Florida. While most Navy EIS/OEIS and mailed to: Naval Facilities Conduct training and testing military readiness activities take place Engineering Command, Atlantic, Code: activities at levels required to support in operating and warning areas in the EV22LDN (AFTT EIS/OEIS Project Navy military readiness requirements AFTT Study Area, some activities, such Manager), 6506 Hampton Boulevard, beginning in December 2018 into the reasonably foreseeable future; and as sonar maintenance and gunnery Norfolk, Virginia, 23508–1278. • Accommodate evolving mission exercises, are conducted concurrent Comments also can be submitted electronically by January 12, 2016 via requirements associated with force with normal transits and occur outside structure changes, including those of these areas, but still within the Study the project Web site at http:// www.AFTTEIS.com. resulting from the development, testing, Area. The pierside testing locations and and ultimate introduction of new associated port transit channels are Dated: November 5, 2015. platforms (vessels, aircraft, and weapon located at the following Navy ports and N.A. Hagerty-Ford, systems) into the fleet; thereby ensuring naval shipyards: Portsmouth Naval Commander, Judge Advocate General's Corps, critical Navy requirements are met. Shipyard, Kittery, Maine; Naval U.S. Navy, Administrative Law Division, As part of this process the Navy will Submarine Base New London, Groton, Federal Register Liaison Officer. seek to obtain authorization and Connecticut; Naval Station Norfolk, [FR Doc. 2015–28750 Filed 11–10–15; 8:45 am] permitting, as required under the Norfolk, Virginia; Joint Expeditionary BILLING CODE 3810–FF–P Marine Mammal Protection Act and Base Little Creek-Fort Story, Virginia Endangered Species Act, respectively. Beach, Virginia; Naval Submarine Base The Navy invites comments on the Kings Bay, Kings Bay, Georgia; Naval DEPARTMENT OF DEFENSE scope and content of the EIS/OEIS from Station Mayport, Jacksonville, Florida; all interested parties. Comments may be Norfolk Naval Shipyard, Portsmouth, Department of the Navy provided by mail and through the EIS/ Virginia; and Port Canaveral, Cape OEIS Web site at: http:// Canaveral, Florida. Additional AFTT Notice of Intent To Prepare an www.hstteis.com. Mailed comments Study Area pierside testing locations Environmental Impact Statement/ must be postmarked no later than and associated port transit channels are Overseas Environmental Impact January 16, 2016 and mailed to the located in Bath, Maine; Groton, Statement for Hawaii-Southern address below to ensure they are Connecticut; Newport News, Virginia; California Training and Testing and considered. and Pascagoula, Mississippi. Notice of Public Scoping Meetings In addition, the Navy will conduct Pursuant to 40 CFR 1501.6, the Navy AGENCY: Department of the Navy, DoD. public scoping meetings to obtain will invite the National Marine ACTION: Notice. comments on the scope of the EIS/OEIS Fisheries Service to be a cooperating and to identify specific environmental agency in preparation of the EIS/OEIS. SUMMARY: Pursuant to section 102(2)(c) concerns or topics for consideration in The purpose of the Proposed Action of the National Environmental Policy the document. is to maintain a ready force, which is Act (NEPA) of 1969, as implemented by DATES: Dates and Addresses: Three needed to ensure that the Navy can meet the Council on Environmental Quality public scoping meetings will be held on: its mission to maintain, train, and equip Regulations (40 Code of Federal 1. Tuesday, December 1, 2015, 5:00– combat-ready naval forces capable of Regulations [CFR] parts 1500–1508), 8:00 p.m., Marina Village Conference winning wars, deterring aggression, and and Executive Order (EO) 12114, the Center Starboard Room, 1936 Quivira maintaining freedom of the seas, as Department of the Navy (Navy) Way, San Diego, CA 92109 consistent with Congressional direction announces its intent to prepare an 2. Thursday, December 3, 2015, 5:00– Section 5062, of Title 10 U.S. Code. Environmental Impact Statement (EIS)/ 8:00 p.m., Island School Main Hall, 3– The AFTT Phase III EIS/OEIS will Overseas EIS (OEIS) to evaluate the 1901 Kaumuali’i Highway Lihue, consider a No Action Alternative and potential environmental effects Kauai, HI 96766 action alternatives that account for types associated with continuing to conduct 3. Saturday, December 5, 2015, 11:00– and tempo of training and testing military readiness activities, which 2:00 p.m., Ke’ehi Lagoon Memorial,

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2685 N. Nimitz Highway, Honolulu, undersea instrumented ranges is also of Schools and Colleges, Accrediting HI 96819 being considered. Commission for Community Colleges The scoping meetings will consist of Resource areas that will be addressed and Junior Colleges (WASC ACCJC), and an informal, open-house session with include, but are not limited to, clarifies the scope of review to be informational stations staffed by Navy biological resources (including marine conducted at the meeting for the representatives. Meeting details will be mammals and threatened and Northwest Commission on Colleges and announced in local newspapers. endangered species), sediments and Universities (MWCCU) and WASC Additional information on the public water quality, air quality, noise, cultural ACCJC. Further, this notice adds an item scoping meetings will be available on resources, socioeconomic resources, and to the agenda. The notice of this meeting the EIS/OEIS Web page located at: public health and safety. is required under Section 10(a)(2) of the http://www.hstteis.com. The scoping process will be used to Federal Advisory Committee Act identify community concerns and local (FACA) and Section 114(d)(1)(B) of the FOR FURTHER INFORMATION CONTACT: issues to be addressed in the EIS/OEIS. Nora Macariola-See, Naval Facilities Higher Education Act of 1965 (HEA), as Federal agencies, state agencies, local amended. Engineering Command, Pacific. agencies, Native American Indian Tribes DATES: Attention: HSTT EIS/OEIS, 258 and Nations, Native Hawaiian The NACIQI meeting will be Makalapa Drive, Suite 100, Pearl Organizations, the public, and held on December 16, 17, and 18, 2015, Harbor, HI 96860–3134. 808–472–1402. interested persons are encouraged to from 8:00 a.m. to 5:30 p.m., at the Hilton Alexandria Old Town, 1767 King Street, SUPPLEMENTARY INFORMATION: The provide comments to the Navy to Alexandria, VA 22314. Navy’s lead action proponent is identify specific issues or topics of Commander, United States Pacific Fleet. environmental concern that the FOR FURTHER INFORMATION CONTACT: Additional action proponents include commenter believes the Navy should Jennifer Hong, Executive Director/ Naval Sea Systems Command consider. All comments provided orally Designated Federal Official, NACIQI, (NAVSEA), Naval Air Systems or in writing at the scoping meetings U.S. Department of Education, 1990 K Command (NAVAIR), Space and Naval will receive the same consideration Street NW., Room 8073, Washington, Warfare Systems Command (SPAWAR), during EIS/OEIS preparation. DC 20006–8129, telephone: (202) 502– and the Office of Naval Research (ONR). Written comments must be 7696; fax: (202) 502–7874, or email: The Proposed Action is to conduct postmarked no later than January 12, [email protected]. 2016 to ensure they are considered in military readiness activities in the HSTT SUPPLEMENTARY INFORMATION: the development of the EIS/OEIS and be Study Area. These training and testing Meeting Agenda Correction: A activities are generally consistent with mailed to: Naval Facilities Engineering Command, Pacific, 258 Makalapa Drive, correction to current and requested those analyzed in the HSTT EIS/OEIS scopes of recognition for the Western completed in August 2013 and are Suite 100, Pearl Harbor, HI 96860–3134, Attention: HSTT EIS/OEIS Project Association of Schools and Colleges, representative of training and testing Accrediting Commission for Community that the Navy has been conducting in Manager. Comments also can be submitted electronically by January 12, and Junior Colleges (WASC ACCJC); the HSTT Study Area for decades. clarification regarding the scope of The HSTT EIS/OEIS Study Area 2016 via the project Web site at http://www.hstteis.com. review at the meeting for the Northwest includes the HRC, the SOCAL Range Commission on Colleges and Complex, in-water areas of SSTC, and Dated: November 5, 2015. Universities (NWCCU) and WASC San Diego Bay. It also includes the N.A. Hagerty-Ford, ACCJC; and addition of an agenda item. transit corridor between the HRC and Commander, Judge Advocate General's Corps, Below is the requested and current the SOCAL Range Complex, as well as U.S. Navy, Federal Register Liaison Officer. scopes of recognition for WASC ACCJC, the Temporary Operating Area north [FR Doc. 2015–28748 Filed 11–10–15; 8:45 am] scheduled for review during the and west of the HRC. Analysis will BILLING CODE 3810–FF–P December 2015 meeting: include in-water areas and activities, including pierside locations and Compliance Report harbors. DEPARTMENT OF EDUCATION Current Scope of Recognition: The Pursuant to 40 CFR 1501.6, the Navy accreditation and preaccreditation will invite the National Marine National Advisory Committee on (‘‘Candidate for Accreditation’’) of Fisheries Service to be a cooperating Institutional Quality and Integrity community and other colleges with a agency in preparation of the EIS/OEIS. Meeting; Update and Correction primarily pre-baccalaureate mission The purpose of the Proposed Action AGENCY: National Advisory Committee located in California, Hawaii, the United is to maintain a ready force, which is on Institutional Quality and Integrity States territories of Guam and American needed to ensure that the Navy can meet (NACIQI), U.S. Department of Samoa, the Republic of Palau, the its mission to maintain, train, and equip Education. Federated States of Micronesia, the combat-ready naval forces capable of ACTION: Announcement of the time and Commonwealth of the Northern Mariana winning wars, deterring aggression, and location of the NACIQI meeting; and a Islands, and the Republic of the maintaining freedom of the seas, correction to the agenda. Marshall Islands, which offer consistent with Congressional direction certificates, associate degrees, and the in section 5062 of Title 10 of the U.S. SUMMARY: This meeting notice is an first baccalaureate degree by means of a Code. update to the previous notice published substantive change review offered by The HSTT Phase III EIS/OEIS will in the Federal Register (176 FR 54774) institutions that are already accredited consider a No Action Alternative and on September 11, 2015, and sets forth by the agency, and such programs action alternatives that account for the time and location for the December offered via distance education and levels of training and testing activities 16, 17, and 18, 2015 NACIQI meeting. correspondence education at these beginning in December 2018 as This notice also provides a correction to colleges. This recognition also extends necessary to meet future readiness the current and requested scopes of to the Committee on Substantive Change requirements. Refurbishment of existing recognition for the Western Association of the Commission, for decisions on

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substantive changes, and the Appeals be considered at the December 2015 date. Although we will attempt to meet Panel. meeting for WASC ACCJC: 34 CFR a request received after that date, we Requested Scope of Recognition: The 602.12(b); 602.16(a)(1)(i); may not be able to make available the accreditation and preaccreditation 602.16(a)(1)(ii); 602.16(a)(1)(iii); requested auxiliary aid or service (‘‘Candidate for Accreditation’’) of 602.17(a); 602.17(f); 602.18(e); because of insufficient time to arrange community and other colleges in 602.19(b); 602.20(a); 602.20(b); it. California, Hawaii, the United States 602.21(c); 602.25(c); and 602.26(b). Electronic Access to this Document: territories of Guam and American Public comments (written and oral) The official version of this document is Samoa, the Republic of Palau, the for NWCCU and WASC ACCJC must be the document published in the Federal Federated States of Micronesia, the confined to the criteria for recognition Register. Free Internet access to the Commonwealth of the Northern listed above. official edition of the Federal Register Marianas, and the Republic of the 3. Scope of Review at the December and the Code of Federal Regulations is Marshall Islands, which have as a 2015 Meeting for Agencies Other Than available via the Federal Digital System primary mission the granting of NWCCU and WASC ACCJC at: www.gpo.gov/fdsys. At this site you associate degrees, but which may also can view this document, as well as all award certificates and other credentials, Public comments (written and oral) other documents of this Department including bachelor’s degrees, where the for all other agencies listed on the published in the Federal Register, in provision of such credentials is within December agenda for consideration of text or Adobe Portable Document the institution’s mission and, if compliance reports must relate to issues Format (PDF). To use PDF, you must applicable, is authorized by their identified in the senior Department have Adobe Acrobat Reader, which is governmental authorities, and the official’s letter that requested the report. available free at the site. accreditation of such programs offered Public comments (written and oral) You may also access documents of the for agencies listed on the December via distance education and Department published in the Federal agenda for consideration for initial or correspondence education at these Register by using the article search renewal of recognition must relate to the colleges. This recognition also extends feature at: www.federalregister.gov. agency’s compliance with the Criteria to the Committee on Substantive Change Specifically, through the advanced for the Recognition of Accrediting of the Commission, for decisions on search feature at this site, you can limit Agencies [34 CFR 602], the Criteria and substantive changes, and the Appeals your search to documents published by Procedures for Recognition of State Panel. the Department. Agencies for the Approval of Public Delegation of Authority: The Secretary Clarification Regarding Scope of Postsecondary Vocational Education [34 of Education has delegated authority to Review CFR 603], and the Criteria and Jamienne S. Studley, Deputy Under Decisions letters issued in January Procedures for Recognition of State Secretary, to perform the functions and 2014 by the senior Department official Agencies for Approval of Nurse duties of the Assistant Secretary for on recognition matters are posted on the Education, as appropriate. Postsecondary Education. Department’s Web site at: https:// Addition of Agenda Item: On Wednesday, December 16, 2015, the Authority: Section 114 of the HEA of 1965, opeweb.ed.gov/aslweb/index.cfm. as amended, 20 U.S.C. 1011c. NWCCU and WASC ACCJC timely NACIQI will receive a briefing to appealed to the Secretary from several continue their discussion from the June Jamienne S. Studley, of the findings contained in the senior 25–26, 2015 meeting regarding how to Deputy Under Secretary. Department official’s January 2014 frame the NACIQI’s policy agenda to [FR Doc. 2015–28746 Filed 11–10–15; 8:45 am] decision letters to those agencies. inform the agency recognition process BILLING CODE 4000–01–P and to develop broader perspectives 1. NWCCU (Compliance Report) about how accrediting agencies consider The agency appealed five of the ten data about student outcomes. The DEPARTMENT OF ENERGY findings outlined in the senior briefing and attendant discussion will Department official’s January 2014 commence prior to the review of Federal Energy Regulatory decision letter. agencies on the agenda, and will resume Commission The agency prevailed on appeal on after the NACIQI has completed its three of the five issues. As a review of agencies. [Docket No. ER16–255–000] consequence of the appeal, only the Access to Records of the Meeting: The East Coast Power & Gas of New following five remaining findings will Department will post the official report Jersey, LLC; Supplemental Notice That be considered at the December 2015 of the meeting on the NACIQI Web site Initial Market-Based Rate Filing meeting for NWCCU: 34 CFR 90 days after the meeting. Pursuant to Includes Request for Blanket Section 602.15(a)(5); 602.16(a)(1)(ix); 602.20(b); the FACA, the public may also inspect 204 Authorization 602.23(c); and 602.26(d). The the materials at 1990 K Street NW., Secretary’s December 2014 appeal Washington, DC, by emailing This is a supplemental notice in the decision may be found here: http:// [email protected] or by calling above-referenced proceeding East Coast oha.ed.gov/secretaryindex.html (202) 219–7067 to schedule an Power & Gas of New Jersey, LLC’s appointment. application for market-based rate 2. WASC ACCJC (Compliance Report) Reasonable Accommodations: The authority, with an accompanying rate The agency appealed two of the 15 meeting site is accessible to individuals tariff, noting that such application findings outlined in the senior with disabilities. If you will need an includes a request for blanket Department official’s January 2014 auxiliary aid or service to participate in authorization, under 18 CFR part 34, of decision letter. The appeal remains the meeting (e.g., interpreting service, future issuances of securities and pending. Because those two findings assistive listening device, or materials in assumptions of liability. remain on appeal, only the other 13 an alternate format), notify the contact Any person desiring to intervene or to findings addressed in the senior person listed in this notice at least two protest should file with the Federal Department official’s decision letter will weeks before the scheduled meeting Energy Regulatory Commission, 888

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First Street NE., Washington, DC 20426, DEPARTMENT OF ENERGY Docket No. EL15–71, People of the State in accordance with Rules 211 and 214 of Illinois v. Midcontinent of the Commission’s Rules of Practice Federal Energy Regulatory Independent System Operator, Inc. and Procedure (18 CFR 385.211 and Commission Docket No. EL15–72, Southwestern 385.214). Anyone filing a motion to Notice of Staff Attendance at the Electric Cooperative, Inc. v. intervene or protest must serve a copy Illinois Commerce Commission’s Midcontinent Independent System of that document on the Applicant. ‘‘Planning For The Future’’ Policy Operator, Inc. Notice is hereby given that the Session; Focus on 2015–2016 Winter Docket No. EL15–82, Illinois Industrial deadline for filing protests with regard Preparedness and Resource Adequacy Energy Consumers v. Midcontinent to the applicant’s request for blanket in the Ameren Illinois Footprint Independent System Operator, Inc. authorization, under 18 CFR part 34, of The Federal Energy Regulatory The meeting is open to the public. future issuances of securities and Commission (Commission) hereby gives assumptions of liability, is November For more information, contact Patrick notice that members of its staff may Clarey, Office of Energy Market 24, 2015. attend the above meeting of the Illinois Regulation, Federal Energy Regulatory The Commission encourages Commerce Commission (ICC). Their Commission at (317) 249–5937 or electronic submission of protests and attendance is part of the Commission’s [email protected]. interventions in lieu of paper, using the ongoing outreach efforts. Dated: November 4, 2015. FERC Online links at http:// The meeting will be held on Nathaniel J. Davis, Sr., www.ferc.gov. To facilitate electronic November 19, 2015 from 10:00 a.m. to service, persons with Internet access 3:00 p.m. at in the Main Hearing Room Deputy Secretary. who will eFile a document and/or be at the ICC’s Chicago office, 160 North [FR Doc. 2015–28642 Filed 11–10–15; 8:45 am] listed as a contact for an intervenor LaSalle, Suite C–800, Chicago, IL 60601. BILLING CODE 6717–01–P must create and validate an The discussions may address matters at issue in the following proceedings: eRegistration account using the DEPARTMENT OF ENERGY eRegistration link. Select the eFiling Docket No. ER11–4081, Midwest link to log on and submit the Independent System Operator, Inc. Federal Energy Regulatory Docket No. EL12–54, Viridity Energy, intervention or protests. Commission Inc. v. PJM Interconnection, L.L.C. Persons unable to file electronically Docket No. ER13–535, PJM should submit an original and 5 copies Interconnection, L.L.C. [Docket No. CP15–89–000] of the intervention or protest to the Docket No. ER13–2108, PJM Federal Energy Regulatory Commission, Interconnection, L.L.C. Transcontinental Gas Pipe Line 888 First Street NE., Washington, DC Docket No. ER14–504, PJM Company, LL; Notice of Availability of 20426. Interconnection, L.L.C. the Environmental Assessment for the Docket No. ER14–822, PJM Proposed Garden State Expansion The filings in the above-referenced Interconnection, L.L.C. Project proceeding are accessible in the Docket Nos. ER14–1461 and EL14–48, Commission’s eLibrary system by PJM Interconnection, L.L.C. The staff of the Federal Energy clicking on the appropriate link in the Docket No. ER14–2940, PJM Regulatory Commission (FERC or above list. They are also available for Interconnection, L.L.C. Commission) has prepared an electronic review in the Commission’s Docket No. ER15–135, PJM environmental assessment (EA) for the Public Reference Room in Washington, Interconnection, L.L.C. Garden State Expansion Project, DC. There is an eSubscription link on Docket Nos. ER15–623 and EL15–29, proposed by Transcontinental Gas Pipe the Web site that enables subscribers to PJM Interconnection, L.L.C. Line Company, LLC (Transco) in the receive email notification when a Docket No. EL14–20, Independent above-referenced docket. Transco document is added to a subscribed Market Monitor for PJM v. PJM requests authorization to construct and docket(s). For assistance with any FERC Interconnection, L.L.C. operate a new compressor station and a Online service, please email Docket Nos. EL14–94 and EL14–36, new meter and regulating station in [email protected], or call FirstEnergy Solutions Corp. and PJM Burlington County, New Jersey and Interconnection, L.L.C. (866) 208–3676 (toll free). For TTY, call construct and modify an existing Docket No. EL14–55, FirstEnergy (202) 502–8659. compressor station and related Service Company v. PJM appurtenant facilities in Mercer County, Dated: November 4, 2015. Interconnection, L.L.C. New Jersey. Docket No. EL15–41, Essential Power Nathaniel J. Davis, Sr., The EA assesses the potential Rock Springs, L.L.C. et al. v. PJM Deputy Secretary. environmental effects of the Interconnection, L.L.C. [FR Doc. 2015–28640 Filed 11–10–15; 8:45 am] construction and operation of the Docket No. EL15–46, Champion Energy Garden State Expansion Project in BILLING CODE 6717–01–P Marketing L.L.C. v. PJM accordance with the requirements of the Interconnection, L.L.C. Docket No. EL15–80, Advanced Energy National Environmental Policy Act Management Alliance Coalition v. (NEPA). The FERC staff concludes that PJM Interconnection, L.L.C. approval of the proposed project, with Docket No. EL15–83, National appropriate mitigating measures, would Resources Defense Council, et al., v. not constitute a major federal action PJM Interconnection, L.L.C. significantly affecting the quality of the Docket No. EL15–70, Public Citizen, Inc. human environment. v. Midcontinent Independent System The proposed Garden State Expansion Operator, Inc. Project includes the following facilities:

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Phase 1 (Targeted In-Service Date of For your convenience, there are three please contact FERC Online Support at November 1, 2016) methods you can use to file your [email protected] or toll free • Chesterfield Meter and Regulating comments to the Commission. In all at (866) 208–3676, or for TTY, contact (M&R) Station, Burlington County, New instances, please reference the project (202) 502–8659. The eLibrary link also Jersey—new meter and regulating docket number (CP15–89–000) with provides access to the texts of formal station near milepost (MP) 15.2 on your submission. The Commission documents issued by the Commission, Transco’s Trenton-Woodbury Lateral; encourages electronic filing of such as orders, notices, and • Compressor Station 205 (Station comments and has expert staff available rulemakings. 205), Mercer County, New Jersey— to assist you at (202) 502–8258 or In addition, the Commission offers a Uprate Unit 3 existing motor to 25,000 [email protected]. free service called eSubscription which horsepower (hp) and related minor (1) You can file your comments allows you to keep track of all formal ancillary modifications; and electronically using the eComment issuances and submittals in specific • Valves and tie-in piping extending feature on the Commission’s Web site dockets. This can reduce the amount of from Trenton-Woodbury Lateral to (www.ferc.gov) under the link to time you spend researching proceedings Chesterfield M&R and the future Documents and Filings. This is an easy by automatically providing you with location of Compressor Station 203 method for submitting brief, text-only notification of these filings, document (Station 203). comments on a project; summaries, and direct links to the (2) You can also file your comments documents. Go to www.ferc.gov/docs- Phase 2 (Targeted In-Service Date of electronically using the eFiling feature filing/esubscription.asp. August 1, 2017) on the Commission’s Web site Dated: November 4, 2015. • Station 205, Mercer County, New (www.ferc.gov) under the link to Jersey—Units 1 and 2: Replace existing Documents and Filings. With eFiling, Nathaniel J. Davis, Sr., compressors and uprate electric motors you can provide comments in a variety Deputy Secretary. each to 16,000 hp, including minor of formats by attaching them as a file [FR Doc. 2015–28633 Filed 11–10–15; 8:45 am] ancillary modifications; with your submission. New eFiling BILLING CODE 6717–01–P • Station 203, Burlington County, users must first create an account by New Jersey—new compressor Station clicking on ‘‘eRegister.’’ You must select consisting of a single 30,500 hp electric the type of filing you are making. If you DEPARTMENT OF ENERGY motor driven unit near MP15.2 on the are filing a comment on a particular Trenton-Woodbury Lateral; project, please select ‘‘Comment on a Federal Energy Regulatory • Electrical Substation, Burlington Filing’’; or Commission County, New Jersey—new electrical (3) You can file a paper copy of your [Docket No. ER16–256–000] substation to power Station 203; and comments by mailing them to the • Automate 15-inch block valve J736 following address: Kimberly D. Bose, CEP&G LLC; Supplemental Notice That located on the Trenton-Woodbury Secretary, Federal Energy Regulatory Initial Market-Based Rate Filing Lateral, Burlington County, New Jersey. Commission, 888 First Street NE., Room Includes Request for Blanket Section The FERC staff mailed copies of the 1A, Washington, DC 20426. 204 Authorization EA to federal, state, and local Any person seeking to become a party government representatives and to the proceeding must file a motion to This is a supplemental notice in the agencies; elected officials; intervene pursuant to Rule 214 of the above-referenced proceeding CEP&G environmental and public interest Commission’s Rules of Practice and LLC’s application for market-based rate groups; Native American tribes; Procedures (18 CFR 385.214).1 Only authority, with an accompanying rate potentially affected landowners and intervenors have the right to seek tariff, noting that such application other interested individuals and groups; rehearing of the Commission’s decision. includes a request for blanket newspapers and libraries in the project The Commission grants affected authorization, under 18 CFR part 34, of area; and parties to this proceeding. In landowners and others with future issuances of securities and addition, the EA is available for public environmental concerns intervenor assumptions of liability. viewing on the FERC’s Web site status upon showing good cause by Any person desiring to intervene or to (www.ferc.gov) using the eLibrary link. stating that they have a clear and direct protest should file with the Federal A limited number of copies of the EA interest in this proceeding which no Energy Regulatory Commission, 888 are available for distribution and public other party can adequately represent. First Street NE., Washington, DC 20426, inspection at: Federal Energy Regulatory Simply filing environmental comments in accordance with Rules 211 and 214 Commission, Public Reference Room, will not give you intervenor status, but of the Commission’s Rules of Practice 888 First Street NE., Room 2A, you do not need intervenor status to and Procedure (18 CFR 385.211 and Washington, DC 20426, (202) 502–8371. have your comments considered. 385.214). Anyone filing a motion to Any person wishing to comment on Additional information about the intervene or protest must serve a copy the EA may do so. Your comments project is available from the of that document on the Applicant. should focus on the potential Commission’s Office of External Affairs, Notice is hereby given that the environmental effects, reasonable at (866) 208–FERC, or on the FERC Web deadline for filing protests with regard alternatives, and measures to avoid or site (www.ferc.gov) using the eLibrary to the applicant’s request for blanket lessen environmental impacts. The more link. Click on the eLibrary link, click on authorization, under 18 CFR part 34, of specific your comments, the more useful ‘‘General Search,’’ and enter the docket future issuances of securities and they will be. To ensure that the number excluding the last three digits in assumptions of liability, is November Commission has the opportunity to the Docket Number field (i.e., CP15–89). 24, 2015. consider your comments prior to Be sure you have selected an The Commission encourages making its decision on this project, it is appropriate date range. For assistance, electronic submission of protests and important that we receive your interventions in lieu of paper, using the comments in Washington, DC on or 1 See the previous discussion on the methods for FERC Online links at http:// before December 4, 2015. filing comments. www.ferc.gov. To facilitate electronic

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service, persons with Internet access Applicants: OCI Alamo 7 LLC. Accession Number: 20151104–5144. who will eFile a document and/or be Description: OCI Alamo 7 LLC Self- Comments Due: 5 p.m. ET 11/25/15. listed as a contact for an intervenor Certification of EWG. The filings are accessible in the must create and validate an Filed Date: 11/4/15. Commission’s eLibrary system by eRegistration account using the Accession Number: 20151104–5099. clicking on the links or querying the eRegistration link. Select the eFiling Comments Due: 5 p.m. ET 11/25/15. docket number. link to log on and submit the Docket Numbers: EG16–18–000. Any person desiring to intervene or intervention or protests. Applicants: OCI Solar TRE LLC. protest in any of the above proceedings Persons unable to file electronically Description: OCI Solar TRE LLC must file in accordance with Rules 211 should submit an original and 5 copies Notice Self-Certification of EWG. and 214 of the Commission’s of the intervention or protest to the Filed Date: 11/4/15. Regulations (18 CFR 385.211 and Federal Energy Regulatory Commission, Accession Number: 20151104–5100. 385.214) on or before 5:00 p.m. Eastern 888 First Street NE., Washington, DC Comments Due: 5 p.m. ET 11/25/15. time on the specified comment date. 20426. Take notice that the Commission Protests may be considered, but The filings in the above-referenced received the following electric rate intervention is necessary to become a proceeding are accessible in the filings: party to the proceeding. Commission’s eLibrary system by eFiling is encouraged. More detailed Docket Numbers: ER15–2668–000. clicking on the appropriate link in the information relating to filing Applicants: Land of the Sky MT, LLC. above list. They are also available for requirements, interventions, protests, Description: Supplement to electronic review in the Commission’s service, and qualifying facilities filings September 17, 2015 Land of the Sky Public Reference Room in Washington, can be found at: http://www.ferc.gov/ MT, LLC tariff filing. DC. There is an eSubscription link on docs-filing/efiling/filing-req.pdf. For Filed Date: 11/2/15. the Web site that enables subscribers to other information, call (866) 208–3676 receive email notification when a Accession Number: 20151102–5300. Comments Due: 5 p.m. ET 11/12/15. (toll free). For TTY, call (202) 502–8659. document is added to a subscribed Dated: November 4, 2015. docket(s). For assistance with any FERC Docket Numbers: ER16–121–000; Nathaniel J. Davis, Sr., Online service, please email EL16–6–001. [email protected]. or call Applicants: PJM Interconnection, Deputy Secretary. (866) 208–3676 (toll free). For TTY, call L.L.C. [FR Doc. 2015–28632 Filed 11–10–15; 8:45 am] (202) 502–8659. Description: Errata to the EL16–6–000 BILLING CODE 6717–01–P Filing to Correct the Proposed Effective Dated: November 4, 2015. Date to 6/1/16 to be effective 6/1/2016. Nathaniel J. Davis, Sr., Filed Date: 10/30/15. DEPARTMENT OF ENERGY Deputy Secretary. Accession Number: 20151030–5391. [FR Doc. 2015–28641 Filed 11–10–15; 8:45 am] Comments Due: 5 p.m. ET 11/9/15. Federal Energy Regulatory Commission BILLING CODE 6717–01–P Docket Numbers: ER16–259–000. Applicants: C.P. Crane LLC. [Docket No. ER16–160–000] Description: Initial rate filing: DEPARTMENT OF ENERGY Reactive Rate Schedule FERC No. 2 to New-Indy Ontario LLC; Supplemental be effective 1/3/2016. Notice That Initial Market-Based Rate Federal Energy Regulatory Filing Includes Request for Blanket Commission Filed Date: 11/4/15. Accession Number: 20151104–5122. Section 204 Authorization Comments Due: 5 p.m. ET 11/25/15. Combined Notice of Filings #2 This is a supplemental notice in the Docket Numbers: ER16–260–000. above-referenced proceeding New-Indy Take notice that the Commission Applicants: DTE East China, LLC. received the following electric corporate Ontario LLC’s application for market- Description: Tariff Cancellation: based rate authority, with an filings: Cancellation of East China Tariff No 4 Docket Numbers: EC15–209–000. accompanying rate tariff, noting that and 5 to be effective 11/4/2015. such application includes a request for Applicants: CPV Sentinel, LLC. Filed Date: 11/4/15. Description: Clarification to blanket authorization, under 18 CFR Accession Number: 20151104–5126. part 34, of future issuances of securities September 23, 2015 Application for Comments Due: 5 p.m. ET 11/25/15. Authorization Under Section 203 of the and assumptions of liability. Docket Numbers: ER16–261–000. Federal Power Act and Request for Any person desiring to intervene or to Applicants: PJM Interconnection, Expedited Action and Shortened protest should file with the Federal L.L.C., Commonwealth Edison Comment Period of CPV Sentinel, LLC. Energy Regulatory Commission, 888 Filed Date: 11/3/15. Company. First Street NE., Washington, DC 20426, Accession Number: 20151103–5229. Description: § 205(d) Rate Filing: in accordance with Rules 211 and 214 Comments Due: 5 p.m. ET 11/13/15. ComEd submits Attach. M–2 to of the Commission’s Rules of Practice Take notice that the Commission incorporate provisions being removed in and Procedure (18 CFR 385.211 and received the following exempt Attach. W to be effective 1/4/2016. 385.214). Anyone filing a motion to wholesale generator filings: Filed Date: 11/4/15. intervene or protest must serve a copy Docket Numbers: EG16–16–000. Accession Number: 20151104–5128. of that document on the Applicant. Applicants: OCI Alamo 6 LLC. Comments Due: 5 p.m. ET 11/25/15. Notice is hereby given that the Description: OCI Alamo 6 LLC Self- Docket Numbers: ER16–262–000. deadline for filing protests with regard Certification of EWG Status. Applicants: Uniper Global to the applicant’s request for blanket Filed Date: 11/4/15. Commodities North America LLC. authorization, under 18 CFR part 34, of Accession Number: 20151104–5096. Description: § 205(d) Rate Filing: 2016 future issuances of securities and Comments Due: 5 p.m. ET 11/25/15. normal to be effective 1/1/2016. assumptions of liability, is November Docket Numbers: EG16–17–000. Filed Date: 11/4/15. 24, 2015.

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The Commission encourages and Procedure (18 CFR 385.211 and Street, Williamsville, New York 14221, electronic submission of protests and 385.214). Anyone filing a motion to filed an amendment to their application interventions in lieu of paper, using the intervene or protest must serve a copy in Docket Number CP15–115–000, FERC Online links at http:// of that document on the Applicant. pursuant to sections 7(b) and 7(c) of the www.ferc.gov. To facilitate electronic Notice is hereby given that the Natural Gas Act (NGA) and Part 157 of service, persons with Internet access deadline for filing protests with regard the Commission’s Regulations, for a who will eFile a document and/or be to the applicant’s request for blanket certificate of public convenience and listed as a contact for an intervenor authorization, under 18 CFR part 34, of necessity to construct and operate the must create and validate an future issuances of securities and Northern Access 2016 Project (the eRegistration account using the assumptions of liability, is November ‘‘Project’’), and authorization to eRegistration link. Select the eFiling 24, 2015. abandon and acquire certain related link to log on and submit the The Commission encourages facilities. The Project will be located in intervention or protests. electronic submission of protests and McKean County, Pennsylvania and Persons unable to file electronically interventions in lieu of paper, using the Alleghany, Cattaraugus, Erie and should submit an original and 5 copies FERC Online links at http:// Niagara Counties, New York. The filing of the intervention or protest to the www.ferc.gov. To facilitate electronic may be viewed on the web at http:// Federal Energy Regulatory Commission, service, persons with Internet access www.ferc.gov using the ‘‘eLibrary’’ link. 888 First Street NE., Washington, DC who will eFile a document and/or be Enter the docket number excluding the 20426. listed as a contact for an intervenor last three digits in the docket number The filings in the above-referenced must create and validate an field to access the document. For proceeding are accessible in the eRegistration account using the assistance, contact FERC at Commission’s eLibrary system by eRegistration link. Select the eFiling [email protected] or call clicking on the appropriate link in the link to log on and submit the toll-free, (886) 208–3676 or TYY, (202) above list. They are also available for intervention or protests. 502–8659. electronic review in the Commission’s Persons unable to file electronically Any questions regarding this Public Reference Room in Washington, should submit an original and 5 copies application should be directed to DC. There is an eSubscription link on of the intervention or protest to the Kenneth E. Webster, Attorney for the Web site that enables subscribers to Federal Energy Regulatory Commission, National Fuel and Empire, 6363 Main receive email notification when a 888 First Street NE., Washington, DC Street, Williamsville, New York 14221, document is added to a subscribed 20426. or call at (716) 857–7067. docket(s). For assistance with any FERC The filings in the above-referenced Specifically, National Fuel requests Online service, please email proceeding are accessible in the authorization: (i) To construct 96.49 miles of 24-inch diameter pipeline; (ii) [email protected], or call Commission’s eLibrary system by to add 5,350 horsepower (hp) of (866) 208–3676 (toll free). For TTY, call clicking on the appropriate link in the compression at the Porterville, New (202) 502–8659. above list. They are also available for York compressor station; (iii) to electronic review in the Commission’s Dated: November 4, 2015. construct an interconnect meter and Public Reference Room in Washington, Nathaniel J. Davis, Sr., regulation (M&R) station with DC. There is an eSubscription link on Deputy Secretary. Tennessee Gas Pipeline Company, the Web site that enables subscribers to L.L.C.’s 200 Line; (iv) to construct an [FR Doc. 2015–28636 Filed 11–10–15; 8:45 am] receive email notification when a M&R station and tie-in in Hinsdale, New BILLING CODE 6717–01–P document is added to a subscribed York; (v) to construct an interconnection docket(s). For assistance with any FERC with NFG Midstream Clermont, L.L.C.; Online service, please email DEPARTMENT OF ENERGY (vi) to construct a new tie-in; (vii) to [email protected]. or call construct a pressure reduction station; Federal Energy Regulatory (866) 208–3676 (toll free). For TTY, call (viii) to abandon, via sale to Empire, Commission (202) 502–8659. 1.08 miles of National Fuel’s existing Dated: November 4, 2015. [Docket No. ER16–161–000] Line XM–10 pipeline and certain other Nathaniel J. Davis, Sr., existing facilities; (ix) to charge an New-Indy Oxnard LLC; Supplemental Deputy Secretary. initial incremental firm recourse rate for Notice That Initial Market-Based Rate [FR Doc. 2015–28637 Filed 11–10–15; 8:45 am] the Project; and (x) for a limited waiver Filing Includes Request for Blanket BILLING CODE 6717–01–P of General Terms and Conditions Section 204 Authorization Section 31.1 of National Fuel’s tariff to permit the Project’s Foundation Shipper This is a supplemental notice in the DEPARTMENT OF ENERGY to shift its primary delivery point for a above-referenced proceeding New-Indy portion of the Project’s incremental Oxnard LLC’s application for market- Federal Energy Regulatory capacity more than ninety days after its based rate authority, with an Commission initial request. National Fuel proposes accompanying rate tariff, noting that to provide 497,000 dekatherms per day such application includes a request for [Docket Nos. CP15–115–001; CP15–115– of new firm natural gas transportation 000] blanket authorization, under 18 CFR capacity. part 34, of future issuances of securities National Fuel Gas Supply Corporation Empire requests authorization to: (i) and assumptions of liability. Empire Pipeline, Inc.; Notice of Construct a new 22,214 hp compressor Any person desiring to intervene or to Amendment to Application station in Pendleton, New York; (ii) protest should file with the Federal construct and operate approximately Energy Regulatory Commission, 888 Take notice that on November 2, 0.90 miles of 16-inch pipeline; (iii) First Street NE., Washington, DC 20426, 2015, National Fuel Gas Supply construct and operate approximately in accordance with Rules 211 and 214 Corporation (National Fuel) and Empire 1.17 miles of 24-inch pipeline; (iv) of the Commission’s Rules of Practice Pipeline, Inc. (Empire), 6363 Main construct a new dehydration facility; (v)

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construct two new tie-ins; and (vi) comments in support of or in opposition In its prior notice request filed on July acquire from National Fuel the to this project. The Commission will 27, 2015 (in Docket No. CP15–537–000) aforementioned 1.08 miles of Line XM– consider these comments in and noticed on August 6, 2015,1 DBM 10. Empire proposes to provide 350,000 determining the appropriate action to be Pipeline, LLC (DBM Pipeline) proposed dekatherms per day of new firm natural taken, but the filing of a comment alone to construct and operate approximately gas transportation capacity. will not serve to make the filer a party 9 miles of 20-inch-diameter pipeline in National Fuel and Empire request to the proceeding. The Commission’s Reeves and Culberson Counties, Texas, authorization to abandon their jointly rules require that persons filing and Eddy County, New Mexico owned meter station along Line XM–10 comments in opposition to the project (Project). Protestor protested the prior in Pendleton, New York. The total cost provide copies of their protests only to notice request filed under the provisions of the Project would be approximately the party or parties directly involved in of Part 157, subpart F, of the $376,670,388 (National Fuel) and the protest. Commission’s regulations, because DBM $78,710,359 (Empire). Persons who wish to comment only Pipeline did not file in its application or Pursuant to section 157.9 of the on the environmental review of this supplemental filings, the Bureau of Commission’s rules, 18 CFR 157.9, project should submit an original and Land Management comments on the within 90 days of this Notice the two copies of their comments to the Project and did not provide adequate Commission staff will either: Complete Secretary of the Commission. avoidance plans to have no effect on its environmental assessment (EA) and Environmental commenters will be historic properties. In addition DBM place it into the Commission’s public placed on the Commission’s Pipeline did not provide complete record (eLibrary) for this proceeding, or environmental mailing list, will receive responses to the FERC Environmental issue a Notice of Schedule for copies of the environmental documents, Data Request dated September 23, 2015. Environmental Review. If a Notice of and will be notified of meetings Protestor notes that on November 3, Schedule for Environmental Review is associated with the Commission’s 2015, DBM Pipeline filed a data issued, it will indicate, among other environmental review process. response with comments from the Texas milestones, the anticipated date for the Environmental commenters will not be and New Mexico State Historic Commission staff’s issuance of the final required to serve copies of filed Preservation Officers (SHPOs), dated environmental impact statement (FEIS) documents on all other parties. June 23, 2015 and October 27, 2015 or EA for this proposal. The filing of the However, the non-party commenters respectively, stating that the Project EA in the Commission’s public record will not receive copies of all documents would either have no effect on or would for this proceeding or the issuance of a filed by other parties or issued by the avoid historic properties. DBM Pipeline Notice of Schedule will serve to notify Commission (except for the mailing of also filed an avoidance plan for three federal and state agencies of the timing environmental documents issued by the cultural resources in New Mexico. for the completion of all necessary Commission) and will not have the right Additionally, the BLM agreed with the reviews, and the subsequent need to to seek court review of the avoidance plan and stated the Project complete all federal authorizations Commission’s final order. would have no effect on historic within 90 days of the date of issuance Motions to intervene, protests and properties in a letter dated November 2, of the Commission staff’s FEIS or EA. 2015. FERC staff agrees with the Texas There are two ways to become comments may be filed electronically involved in the Commission’s review of via the internet in lieu of paper; see, 18 and New Mexico SHPOs and finds the this project. First, any person wishing to CFR 385.2001(a)(1)(iii) and the avoidance plan acceptable. Finally, obtain legal status by becoming a party instructions on the Commission’s Web DBM Pipeline submitted complete to the proceedings for this project site under the ‘‘e-Filing’’ link. The responses to the FERC Environmental should, on or before the comment date Commission strongly encourages Data Request dated September 23, 2015. stated below, file with the Federal electronic filings. Thus, Protestor’s environmental Energy Regulatory Commission, 888 Comment Date: 5:00 p.m. Eastern concern has been satisfied. Accordingly, First Street NE., Washington, DC 20426, Time on November 25, 2015. Protestor hereby withdraws its Protest to a motion to intervene in accordance Dated: November 4, 2015. the Proposed Blanket Certificate Activity filed in the instant docket on with the requirements of the Nathaniel J. Davis, Sr., October 2, 2015. Commission’s Rules of Practice and Deputy Secretary. Dated: November 4, 2015. Procedure (18 CFR 385.214 or 385.211) [FR Doc. 2015–28634 Filed 11–10–15; 8:45 am] and the Regulations under the NGA (18 Nathaniel J. Davis, Sr., BILLING CODE 6717–01–P CFR 157.10). A person obtaining party Deputy Secretary. status will be placed on the service list [FR Doc. 2015–28635 Filed 11–10–15; 8:45 am] maintained by the Secretary of the DEPARTMENT OF ENERGY BILLING CODE 6717–01–P Commission and will receive copies of all documents filed by the applicant and Federal Energy Regulatory by all other parties. A party must submit Commission DEPARTMENT OF ENERGY 5 copies of filings made with the Commission and must mail a copy to [Docket No. CP15–537–000] Federal Energy Regulatory the applicant and to every other party in Commission the proceeding. Only parties to the DBM Pipeline, LLC; Notice of proceeding can ask for court review of Withdrawal of Staff Protest to Combined Notice of Filings #1 Commission orders in the proceeding. Proposed Blanket Certificate Activity Take notice that the Commission However, a person does not have to received the following electric corporate intervene in order to have comments Commission staff (Protestor) hereby filings: considered. The second way to withdraws its Protest to the Proposed participate is by filing with the Blanket Certificate Activity filed in the 1 Notice of the request was published in the Secretary of the Commission, as soon as above-referenced proceeding on October Federal Register on August 13, 2015 (80 Fed. Reg. possible, an original and two copies of 2, 2015. 48520).

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Docket Numbers: EC16–26–000. Comments Due: 5 p.m. ET 11/24/15. docs-filing/efiling/filing-req.pdf. For Applicants: Waverly Wind Farm LLC. Docket Numbers: ER16–254–000. other information, call (866) 208–3676 Description: Application for Applicants: Southwest Power Pool, (toll free). For TTY, call (202) 502–8659. Authorization for Disposition of Inc. Dated: November 4, 2015. Jurisdictional Facilities and Request for Description: § 205(d) Rate Filing: Nathaniel J. Davis, Sr., Expedited Action of Waverly Wind Ministerial Filing of Non-Substantive Deputy Secretary. Farm LLC. Membership Agreement Revisions to be [FR Doc. 2015–28631 Filed 11–10–15; 8:45 am] Filed Date: 11/3/15. effective 10/1/2015. Accession Number: 20151103–5227. Filed Date: 11/3/15. BILLING CODE 6717–01–P Comments Due: 5 p.m. ET 11/24/15. Accession Number: 20151103–5199. Docket Numbers: EC16–27–000. Comments Due: 5 p.m. ET 11/24/15. DEPARTMENT OF ENERGY Applicants: Carousel Wind Farm, Docket Numbers: ER16–255–000. LLC. Applicants: East Coast Power & Gas of Federal Energy Regulatory Description: Application for New Jersey, LL. Commission Authorization Under Section 203 of the Description: Baseline eTariff Filing: Federal Power Act and Request for ECP&G NJ Market Based Rate Tariff to Combined Notice of Filings Expedited Action of Carousel Wind be effective 1/1/2016. Take notice that the Commission has Farm, LLC. Filed Date: 11/3/15. Filed Date: 11/3/15. received the following Natural Gas Accession Number: 20151103–5201. Pipeline Rate and Refund Report filings: Accession Number: 20151103–5247. Comments Due: 5 p.m. ET 11/24/15. Comments Due: 5 p.m. ET 11/24/15. Filings Instituting Proceedings Docket Numbers: ER16–256–000. Take notice that the Commission Applicants: CEP&G LLC. Docket Numbers: RP16–165–000. received the following electric rate Description: Baseline eTariff Filing: Applicants: Alliance Pipeline L.P. filings: CEP&G LLC Market Based Rate Tariff to Description: § 4(d) Rate Filing: Docket Numbers: ER14–2529–004. be effective 1/1/2016. Resubmit Oct 15–31 2015 Auction to be Applicants: Pacific Gas and Electric Filed Date: 11/3/15. effective 10/15/2015. Company. Accession Number: 20151103–5202. Filed Date: 11/3/15. Description: Compliance filing: eTariff Comments Due: 5 p.m. ET 11/24/15. Accession Number: 20151103–5001. Comments Due: 5 p.m. ET 11/16/15. Migration Compliance Filing for TO16 Docket Numbers: ER16–257–000. Settlement to be effective 7/23/2015. Applicants: Southern California Docket Numbers: RP16–166–000. Filed Date: 10/28/15. Edison Company. Applicants: Ozark Gas Transmission, Accession Number: 20151028–5216. Description: § 205(d) Rate Filing: L.L.C. Description: § 4(d) Rate Filing: Comments Due: 5 p.m. ET 11/18/15. Amendment of LGIA, Service Munich Re Trading Negotiated Rate eff Docket Numbers: ER15–1687–003. Agreement No. 171 to be effective 1/3/ 12–1–2015 to be effective 12/1/2015. Applicants: Blue Cube Operations 2016. Filed Date: 11/3/15. LLC. Filed Date: 11/3/15. Description: Notice of Change in Accession Number: 20151103–5061. Accession Number: 20151103–5205. Comments Due: 5 p.m. ET 11/16/15. Status of Blue Cube Operations LLC. Comments Due: 5 p.m. ET 11/24/15. Filed Date: 11/3/15. Docket Numbers: RP16–167–000. Docket Numbers: ER16–258–000. Applicants: Algonquin Gas Accession Number: 20151103–5264. Applicants: Southern California Comments Due: 5 p.m. ET 11/24/15. Transmission, LLC. Edison Company. Description: § 4(d) Rate Filing: ConEd Docket Numbers: ER16–251–000. Description: § 205(d) Rate Filing: Ramapo Releases for 11–3–2015 to be Applicants: AEP Generation True-Up SGIA and Distribution Service effective 11/3/2015. Resources Inc. Agmt Golden Springs to be effective 1/ Filed Date: 11/3/15. Description: § 205(d) Rate Filing: 4/2016. Accession Number: 20151103–5066. Mitchell Plant Concurrence RS 303 Filed Date: 11/4/15. Comments Due: 5 p.m. ET 11/16/15. Cancellation to be effective 1/31/2015. Accession Number: 20151104–5001. Docket Numbers: RP16–169–000. Filed Date: 11/3/15. Comments Due: 5 p.m. ET 11/25/15. Applicants: Gulf South Pipeline Accession Number: 20151103–5189. The filings are accessible in the Company, LP. Comments Due: 5 p.m. ET 11/24/15. Commission’s eLibrary system by Description: § 4(d) Rate Filing: Rate Docket Numbers: ER16–252–000. clicking on the links or querying the Case Settlement Amendments Filing 2- Applicants: Kentucky Power docket number. resubmission to be effective 11/1/2015. Company. Any person desiring to intervene or Filed Date: 11/3/15. Description: § 205(d) Rate Filing: protest in any of the above proceedings Accession Number: 20151103–5203. Mitchell Agreement Cancellation to be must file in accordance with Rules 211 Comments Due: 5 p.m. ET 11/16/15. effective 1/31/2015. and 214 of the Commission’s Docket Numbers: RP16–170–000. Filed Date: 11/3/15. Regulations (18 CFR 385.211 and Applicants: Rockies Express Pipeline Accession Number: 20151103–5192. 385.214) on or before 5:00 p.m. Eastern LLC. Comments Due: 5 p.m. ET 11/24/15. time on the specified comment date. Description: § 4(d) Rate Filing: Neg Docket Numbers: ER16–253–000. Protests may be considered, but Rate 2015–11–04 ConocoPhillips to be Applicants: AEP Generation intervention is necessary to become a effective 11/4/2015. Resources Inc. party to the proceeding. Filed Date: 11/4/15. Description: § 205(d) Rate Filing: AEP eFiling is encouraged. More detailed Accession Number: 20151104–5002. GR MBR Tariff Mitchell Cleanup Filing information relating to filing Comments Due: 5 p.m. ET 11/16/15. to be effective 1/31/2015. requirements, interventions, protests, Docket Numbers: RP16–171–000. Filed Date: 11/3/15. service, and qualifying facilities filings Applicants: Texas Gas Transmission, Accession Number: 20151103–5193. can be found at: http://www.ferc.gov/ LLC.

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Description: § 4(d) Rate Filing: Neg authorization, under 18 CFR part 34, of governments. This notice solicits Rate Agmt Filing (Tenaska 35178) to be future issuances of securities and nominations for eight to twelve (8–12) effective 11/1/2015. assumptions of liability, is November anticipated vacancies. To maintain the Filed Date: 11/4/15. 24, 2015. representation outlined by the charter, Accession Number: 20151104–5062. The Commission encourages nominees will be selected to represent: Comments Due: 5 p.m. ET 11/16/15. electronic submission of protests and large cities, moderate-sized cities, small The filings are accessible in the interventions in lieu of paper, using the communities, and townships (under Commission’s eLibrary system by FERC Online links at http:// 10,000); county-elected officials-urban, clicking on the links or querying the www.ferc.gov. To facilitate electronic suburban and rural; city elected and docket number. service, persons with Internet access appointed officials (city council Any person desiring to intervene or who will eFile a document and/or be members, city managers); state elected protest in any of the above proceedings listed as a contact for an intervenor and appointed officials (state must file in accordance with Rules 211 must create and validate an representatives, public health, and 214 of the Commission’s eRegistration account using the agricultural and state environmental Regulations (18 CFR 385.211 and eRegistration link. Select the eFiling commissioners); and tribal elected and § 385.214) on or before 5:00 p.m. Eastern link to log on and submit the appointed officials (chair, president, time on the specified comment date. intervention or protests. natural resources directors). Vacancies Protests may be considered, but Persons unable to file electronically are anticipated to be filled by March intervention is necessary to become a should submit an original and 5 copies 2016. Sources in addition to this party to the proceeding. of the intervention or protest to the Federal Register publication may be eFiling is encouraged. More detailed Federal Energy Regulatory Commission, utilized in the solicitation of nominees. information relating to filing 888 First Street NE., Washington, DC DATES: Nominations should be requirements, interventions, protests, 20426. submitted at least by December 14, service, and qualifying facilities filings The filings in the above-referenced 2015. can be found at: http://www.ferc.gov/ proceeding are accessible in the ADDRESSES: Submit nominations docs-filing/efiling/filing-req.pdf. For Commission’s eLibrary system by electronically with the subject line other information, call (866) 208–3676 clicking on the appropriate link in the ‘‘LGAC Membership 2016’’ to (toll free). For TTY, call (202) 502–8659. above list. They are also available for [email protected]. You may also electronic review in the Commission’s Dated: November 04, 2015. submit nominations by mail to: Frances Public Reference Room in Washington, Nathaniel J. Davis, Sr., Eargle, LGAC Designated Federal DC. There is an eSubscription link on Officer, Office of Congressional and Deputy Secretary. the Web site that enables subscribers to [FR Doc. 2015–28643 Filed 11–10–15; 8:45 am] Intergovernmental Relations (OCIR), receive email notification when a U.S. Environmental Protection Agency, BILLING CODE 6717–01–P document is added to a subscribed 1200 Pennsylvania Avenue NW., docket(s). For assistance with any FERC (MC1301A), Washington, DC 20460. Online service, please email DEPARTMENT OF ENERGY Non-electronic submissions must follow [email protected], or call the same format and contain the same Federal Energy Regulatory (866) 208–3676 (toll free). For TTY, call information. (202) 502–8659. Commission FOR FURTHER INFORMATION CONTACT: Dated: November 4, 2015. Frances Eargle, Designated Federal [Docket No. ER16–182–000] Nathaniel J. Davis, Sr., Officer for the LGAC, U.S. EPA; Cameron Ridge II, LLC; Supplemental Deputy Secretary. telephone (202) 564–3115; email: Notice That Initial Market-Based Rate [FR Doc. 2015–28639 Filed 11–10–15; 8:45 am] [email protected]. Filing Includes Request for Blanket BILLING CODE 6717–01–P SUPPLEMENTARY INFORMATION: The LGAC Section 204 Authorization is a federal advisory committee chartered under the Federal Advisory This is a supplemental notice in the ENVIRONMENTAL PROTECTION Committee Act (FACA), Public Law 92– above-referenced proceeding Cameron AGENCY 463. EPA established the LGAC in 1993 Ridge II, LLC’s application for market- to provide independent advice to the based rate authority, with an [FRL 9937–00–OA] EPA Administrator on a broad range of accompanying rate tariff, noting that public health and environmental issues Local Government Advisory such application includes a request for affecting local governments. The LGAC Committee: Request for Nominations blanket authorization, under 18 CFR conducts business in accordance with part 34, of future issuances of securities AGENCY: Environmental Protection the Federal Advisory Committee Act and assumptions of liability. Agency (EPA). (FACA) (5 U.S.C. App2) and related Any person desiring to intervene or to ACTION: Notice of request for regulations. protest should file with the Federal nominations. The Committee consists of Energy Regulatory Commission, 888 approximately 30 members (including a First Street NE., Washington, DC 20426, SUMMARY: The U.S. Environmental Chairperson) appointed by the EPA’s in accordance with Rules 211 and 214 Protection Agency (EPA) invites Administrator. Members serve as non- of the Commission’s Rules of Practice nominations from a diverse range of federal stakeholders representing: Large and Procedure (18 CFR 385.211 and qualified candidates to be considered cities, moderate-sized cities, small 385.214). Anyone filing a motion to for appointment to its Local communities, and townships (under intervene or protest must serve a copy Government Advisory Committee 10,000); county-elected officials-urban, of that document on the Applicant. (LGAC). The LGAC is chartered to suburban and rural; city elected and Notice is hereby given that the provide advice to the EPA appointed officials (city council deadline for filing protests with regard Administrator on a broad range of members, city managers); state elected to the applicant’s request for blanket environmental issues affecting local and appointed officials (state

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representatives, state environmental and • Willingness to commit time to the Commission (FCC or Commission) public health commissioners); and tribal committee and demonstrated ability to invites the general public and other elected and appointed officials (chair, work constructively and effectively on Federal agencies to take this president, natural resources directors). committees. opportunity to comment on the Members are appointed for one or two How to submit nominations: Any following information collections. (1–2) year terms, and eligible for interested person or organization may Comments are requested concerning: reappointment. nominate qualified persons to be Whether the proposed collection of The LGAC usually meets two or three considered for appointment to this information is necessary for the proper times a year. Additionally, members advisory committee. Individuals may performance of the functions of the may be asked to participate in self-nominate. Nominations can be Commission, including whether the teleconference meetings or serve on a submitted in electronic format information shall have practical utility; subcommittee and workgroups to (preferred) or in hard copy format (see the accuracy of the Commission’s develop recommendations, advice ADDRESSES section above). To be burden estimate; ways to enhance the letters and reports to address specific considered, all nominations should quality, utility, and clarity of the policy issues. The average workload for include: information collected; ways to minimize members is approximately 3–6 hours • Current contact information for the the burden of the collection of per month. Honoraria or compensation nominee, including the nominee’s information on the respondents, for your services is not authorized, name, organization (and position within including the use of automated however, you may receive travel and per that organization), current business collection techniques or other forms of diem allowances where appropriate and address, email address, and daytime information technology; and ways to according to applicable federal travel telephone number; further reduce the information regulations. • A brief statement describing the collection burden on small business Nominations: The EPA values and nominee’s interest in serving on the concerns with fewer than 25 employees. welcomes diversity. In an effort to LGAC; and The FCC may not conduct or sponsor • obtain nominations of diverse A resume and short biography a collection of information unless it candidates, the agency encourages describing the professional and displays a currently valid OMB control nominations of women and men from educational qualifications of the number. No person shall be subject to racially, ethnically, and socio- nominee, including a list of relevant any penalty for failing to comply with economically diverse communities. All activities, and any current or previous a collection of information subject to the nominations will be fully considered, service on advisory committees; and PRA that does not display a valid OMB but applicants need to be aware of the Letter(s) of recommendation from a control number. specific representation sought as third party supporting the nomination. DATES: outlined in the Summary above. In Letter(s) should describe how the Written PRA comments should addition, EPA is seeking nominees with nominee’s experience and knowledge be submitted on or before January 11, demonstrated local leadership in will bring value to the work of the 2016. If you anticipate that you will be community sustainability and LGAC. submitting comments, but find it sustainable development; public health Other sources, in addition to this difficult to do so within the period of and health disparities; air and water Federal Register notice, may be utilized time allowed by this notice, you should quality issues; climate change and in the solicitation of nominees. To help advise the contact listed below as soon climate resiliency; green jobs and the EPA in evaluating the effectiveness as possible. economic initiatives; and energy and of its outreach efforts, please tell us how ADDRESSES: Direct all PRA comments to environmental financing. you learned of this opportunity. Cathy Williams, FCC, via email PRA@ Other criteria used to evaluate fcc.gov and to [email protected]. nominees will include: Dated: November 3, 2015. FOR FURTHER INFORMATION CONTACT: • The background and experience Frances Eargle, For that would help members contribute to Designated Federal Officer. Local Government additional information about the the diversity of perspectives on the Advisory Committee. information collection, contact Cathy committee (e.g., geographic, economic, [FR Doc. 2015–28759 Filed 11–10–15; 8:45 am] Williams at (202) 418–2918. social, cultural, educational BILLING CODE 6560–50–P SUPPLEMENTARY INFORMATION: background, professional affiliations, OMB Control No.: 3060–0928. and other considerations); Title: FCC Form 2100, Application for • Demonstrated experience as elected FEDERAL COMMUNICATIONS Media Bureau Audio and Video Service and/or appointed official for a local, COMMISSION Authorization, Schedule F (Formerly state or tribal government; FCC 302–CA); 47 CFR 73.3572(h) and 47 • [OMB 3060–0928] Demonstrated experience working CFR 73.3700(b). with officials from other governments or Information Collection Being Reviewed Form No.: FCC Form 2100, Schedule other levels of government (e.g., other by the Federal Communications F. local governments, federal agencies); Commission • Excellent interpersonal and Type of Review: Revision of a currently approved information consensus-building skills; AGENCY: Federal Communications collection. • Ability to volunteer time to attend Commission. Respondents: Business or other for- meetings 2–3 times a year, participate in ACTION: Notice and request for profit entities; Not for profit institutions; teleconference meetings, attend comments. listening sessions with the State, local or Tribal Government. Administrator or other senior-level EPA SUMMARY: As part of its continuing effort Number of Respondents and officials, develop policy to reduce paperwork burdens, and as Responses: 955 respondents and 955 recommendations to the Administrator required by the Paperwork Reduction responses. and prepare reports and advice letters; Act (PRA) of 1995 (44 U.S.C. 3501– Estimated Time per Response: 2 and 3520), the Federal Communications hours.

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Frequency of Response: One-time information is necessary for the proper Needs and Uses: Section 90.607 reporting requirement and on occasion performance of the functions of the requires the affected applicants to reporting requirement. Commission, including whether the submit a list of any radio facilities they Obligation to Respond: Required to information shall have practical utility; hold within 40 miles of the base station obtain or retain benefits. Statutory the accuracy of the Commission’s transmitter site being applied for. authority for this collection of burden estimate; ways to enhance the This information is used to determine information is contained in Sections quality, utility, and clarity of the if an applicant’s proposed system is 154(i), 307, 308, 309, and 319 of the information collected; ways to minimize necessary in light of communications Communications Act of 1934, as the burden of the collection of facilities it already owns. Such a amended, the Community Broadcasters information on the respondents, determination helps the Commission to Protection Act of 1999, and the Middle including the use of automated equitably distribute limited spectrum Class Tax Relief and Job Creation Act of collection techniques or other forms of and prevents spectrum warehousing. 2012. information technology; and ways to Federal Communications Commission. further reduce the information Total Annual Burden: 1,910 hours. Marlene H. Dortch, Annual Cost Burden: $300,825. collection burden on small business Privacy Act Impact Assessment: No concerns with fewer than 25 employees. Secretary, Office of the Secretary. impact(s). The FCC may not conduct or sponsor [FR Doc. 2015–28638 Filed 11–10–15; 8:45 am] Nature and Extent of Confidentiality: a collection of information unless it BILLING CODE 6712–01–P There is no need for confidentiality with displays a currently valid OMB control this collection of information. number. No person shall be subject to FEDERAL COMMUNICATIONS Needs and Uses: The collection is any penalty for failing to comply with COMMISSION being made to the Office of Management a collection of information subject to the (OMB) for the approval of information PRA that does not display a valid OMB [OMB 3060–0837] collection requirements contained in the control number. Commission’s Incentive Auction Order, DATES: Written PRA comments should Information Collection Being Reviewed FCC 14–50, which adopted rules for be submitted on or before January 11, by the Federal Communications holding an Incentive Auction, as 2016. If you anticipate that you will be Commission submitting comments, but find it required by the Middle Class Tax Relief AGENCY: Federal Communications difficult to do so within the period of and Job Creation Act of 2012 (Spectrum Commission. Act). The information gathered in this time allowed by this notice, you should ACTION: collection will be used by Class A advise the contact listed below as soon Notice and request for stations seeking a license to cover their as possible. comments. authorized construction permit facilities ADDRESSES: Direct all PRA comments to SUMMARY: As part of its continuing effort and Class A stations entering into a Cathy Williams, FCC, via email PRA@ to reduce paperwork burdens, and as channel sharing agreement. fcc.gov and to [email protected]. required by the Paperwork Reduction Federal Communications Commission. FOR FURTHER INFORMATION CONTACT: For Act (PRA) of 1995 (44 U.S.C. 3501– Marlene H. Dortch, additional information about the 3520), the Federal Communications Secretary, Office of the Secretary. information collection, contact Cathy Commission (FCC or Commission) Williams at (202) 418–2918. [FR Doc. 2015–28629 Filed 11–10–15; 8:45 am] invites the general public and other SUPPLEMENTARY INFORMATION: Federal agencies to take this BILLING CODE 6212–01–P OMB Control Number: 3060–0295. opportunity to comment on the Title: Section 90.607, Supplemental following information collections. FEDERAL COMMUNICATIONS Information to be Furnished by Comments are requested concerning: COMMISSION Applicants For Facilities Under Subpart Whether the proposed collection of S. information is necessary for the proper [OMB 3060–0295] Form Number: N/A. performance of the functions of the Type of Review: Extension of a Commission, including whether the Information Collection Being Reviewed currently approved collection. by the Federal Communications information shall have practical utility; Respondents: Business or other for- the accuracy of the Commission’s Commission Under Delegated profit entities, not-for-profit institutions Authority burden estimate; ways to enhance the and state, local or tribal government. quality, utility, and clarity of the Number of Respondents and AGENCY: Federal Communications information collected; ways to minimize Responses: 243 respondents; 243 Commission. the burden of the collection of responses. information on the respondents, ACTION: Notice and request for Estimated Time per Response: .25 including the use of automated comments. hours. Frequency of Response: One time collection techniques or other forms of SUMMARY: As part of its continuing effort reporting requirement. information technology; and ways to to reduce paperwork burdens, and as Obligation To Respond: Required to further reduce the information required by the Paperwork Reduction obtain or retain benefits. Statutory collection burden on small business Act (PRA) of 1995 (44 U.S.C. 3501– authority for this information collection concerns with fewer than 25 employees. 3520), the Federal Communications is contained in 47 U.S.C. 308(b). The FCC may not conduct or sponsor Commission (FCC or Commission) Total Annual Burden: 61 hours. a collection of information unless it invites the general public and other Total Annual Cost: No cost. displays a currently valid OMB control Federal agencies to take this Privacy Impact Assessment: No number. No person shall be subject to opportunity to comment on the impact(s). any penalty for failing to comply with following information collections. Nature and Extent of Confidentiality: a collection of information subject to the Comments are requested concerning: There is no need for confidentiality with PRA that does not display a valid OMB whether the proposed collection of this collection of information. control number.

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DATES: Written PRA comments should Act). The information gathered in this number. No person shall be subject to be submitted on or before January 11, collection will be used to allow full- any penalty for failing to comply with 2016. If you anticipate that you will be power television broadcast stations to a collection of information subject to the submitting comments, but find it file a license to cover an authorized PRA that does not display a valid OMB difficult to do so within the period of construction permit once facilities have control number. time allowed by this notice, you should been constructed. In addition, full- DATES: Written PRA comments should advise the contact listed below as soon power television broadcast stations that be submitted on or before January 11, as possible. enter into channel sharing agreements 2016. If you anticipate that you will be ADDRESSES: Direct all PRA comments to following the Commission’s Incentive submitting comments, but find it Cathy Williams, FCC, via email PRA@ Auction will use FCC Form 2100, difficult to do so within the period of fcc.gov and to [email protected]. Schedule B to file an application for a time allowed by this notice, you should FOR FURTHER INFORMATION CONTACT: For license for the shared channel sharing, advise the contact listed below as soon additional information about the and will allow a full-power station, as possible. information collection, contact Cathy upon termination of its channel sharing ADDRESSES: Direct all PRA comments to Williams at (202) 418–2918. agreement, to file an application to Cathy Williams, FCC, via email PRA@ change its license to non-shared status SUPPLEMENTARY INFORMATION: fcc.gov and to [email protected]. using FCC Form 2100, Schedule B. OMB Control No.: 3060–0837. FOR FURTHER INFORMATION CONTACT: For Title: FCC Form 2100, Application for Federal Communications Commission. additional information about the Media Bureau Audio and Video Service Marlene H. Dortch, information collection, contact Cathy Authorization, Schedule B (Former FCC Secretary, Office of the Secretary. Williams at (202) 418–2918. Form 302–DTV). [FR Doc. 2015–28628 Filed 11–10–15; 8:45 am] SUPPLEMENTARY INFORMATION: Form No.: FCC Form 2100, Schedule BILLING CODE 6712–01–P OMB Control No.: 3060–0386. B. Title: Special Temporary Type of Review: Revision of a Authorization (STA) Requests; currently approved information FEDERAL COMMUNICATIONS Notifications; and Informal Filings; collection. COMMISSION Sections 1.5, 73.1615, 73.1635, 73.1740 Respondents: Business or other for- [OMB 3060–0386] and 73.3598; CDBS Informal Forms; profit entities; Not for profit institutions. Section 74.788; Low Power Television, Number of Respondents and Information Collection Being Reviewed TV Translator and Class A Television Responses: 955 respondents and 955 by the Federal Communications Digital Transition Notifications; Section responses. Commission 73.3700(b)(5), Post Auction Licensing; Estimated Time per Response: 2 Section 73.3700(f), Service Rule Waiver; hours. AGENCY: Federal Communications FCC Form 337. Frequency of Response: One-time Commission. Form No.: FCC Form 337. reporting requirement and on occasion ACTION: Notice and request for Type of Review: Revision of a reporting requirement. comments. currently information collection. Obligation to Respond: Required to Respondents: Business or other for- obtain or retain benefits. The statutory SUMMARY: As part of its continuing effort profit entities; Not for profit institutions; authority for this collection is contained to reduce paperwork burdens, and as State, local or Tribal government. in Sections 154(i), 307, 308, 309, and required by the Paperwork Reduction Number of Respondents and 319 of the Communications Act of 1934, Act (PRA) of 1995 (44 U.S.C. 3501– Responses: 6,609 respondents and 6,609 as amended; the Community 3520), the Federal Communications responses. Broadcasters Protection Act of 1999, Commission (FCC or Commission) Estimated Time per Response: .50–4.0 Public Law 106–113, 113 Stat. invites the general public and other hours. Appendix I at pp. 1501A- 594–1501A– Federal agencies to take this Frequency of Response: One-time 598 (1999) (codified at 47 U.S.C. 336(f)); opportunity to comment on the reporting requirement and on occasion and the Middle Class Tax Relief and Job following information collections. reporting requirement. Creation Act of 2012, Public Law 112– Comments are requested concerning: Obligation to Respond: Required to 96, §§ 6402 (codified at 47 U.S.C. Whether the proposed collection of obtain or retain benefits. The statutory 309(j)(8)(G)), 6403 (codified at 47 U.S.C. information is necessary for the proper authority for this collection is contained 1452), 126 Stat. 156 (2012) (Spectrum performance of the functions of the in 47 U.S.C. 151, 154(i), 157 and 309(j) Act). Commission, including whether the as amended; Middle Class Tax Relief Total Annual Burden: 1,910 hours. information shall have practical utility; and Job Creation Act of 2012, Public Annual Cost Burden: $460,070.00. the accuracy of the Commission’s Law 112–96, §§ 6402 (codified at 47 Privacy Act Impact Assessment: No burden estimate; ways to enhance the U.S.C. 309(j)(8)(G)), 6403 (codified at 47 impact(s). quality, utility, and clarity of the U.S.C. 1452), 126 Stat. 156 (2012) Nature and Extent of Confidentiality: information collected; ways to minimize (Spectrum Act); and Sections 1, 4(i) and There is no need for confidentiality with the burden of the collection of (j), 7, 301, 302, 303, 307, 308, 309, 312, this collection of information. information on the respondents, 316, 318, 319, 324, 325, 336, and 337 of Needs and Uses: The collection is including the use of automated the Communications Act of 1934, as being made to the Office of Management collection techniques or other forms of amended. (OMB) for the approval of information information technology; and ways to Total Annual Burden: 5,475 hours. collection requirements contained in the further reduce the information Annual Cost Burden: $2,156,510. Commission’s Incentive Auction Order, collection burden on small business Privacy Act Impact Assessment: No FCC 14–50, which adopted rules for concerns with fewer than 25 employees. impact(s). holding an Incentive Auction, as The FCC may not conduct or sponsor Nature and Extent of Confidentiality: required by the Middle Class Tax Relief a collection of information unless it There is no need for confidentiality with and Job Creation Act of 2012 (Spectrum displays a currently valid OMB control this collection of information.

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Needs and Uses: The collection is The FCC may not conduct or sponsor Needs and Uses: The collection is being made to the Office of Management a collection of information unless it being made to the Office of Management (OMB) for the approval of information displays a currently valid OMB control (OMB) for the approval of information collection requirements contained in the number. No person shall be subject to collection requirements contained in the Commission’s Incentive Auction Order, any penalty for failing to comply with Commission’s Incentive Auction Order, FCC 14–50, which adopted rules for a collection of information subject to the FCC 14–50, which adopted rules for holding an Incentive Auction, as PRA that does not display a valid OMB holding an Incentive Auction, as required by the Middle Class Tax Relief control number. required by the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum DATES: Written PRA comments should and Job Creation Act of 2012 (Spectrum Act). The information gathered in this be submitted on or before January 11, Act). The information gathered in this collection will be used to allow 2016. If you anticipate that you will be collection will be used allow Class A television broadcast stations to request submitting comments, but find it television stations to make changes in special temporary authority (STA) to difficult to do so within the period of their authorized facilities. Specifically, operate, seek an extension of time to time allowed by this notice, you should Class A stations assigned to a new complete construction, request a waiver advise the contact listed below as soon of the Commission’s service rules as possible. channel following the Incentive Auction must file a minor change application on following the Incentive Auction, and ADDRESSES: Direct all PRA comments to make other informal requests and Cathy Williams, FCC, via email PRA@ FCC Form 2100, Schedule E following submissions. fcc.gov and to [email protected]. release of the Channel Reassignment Public Notice. Under certain Federal Communications Commission. FOR FURTHER INFORMATION CONTACT: For additional information about the circumstances, licensees of stations Marlene H. Dortch, reassigned to a new channel within Secretary, Office of the Secretary. information collection, contact Cathy Williams at (202) 418–2918. their existing band to propose [FR Doc. 2015–28630 Filed 11–10–15; 8:45 am] SUPPLEMENTARY INFORMATION: transmission facilities in their BILLING CODE 6712–01–P OMB Control No.: 3060–0932. construction permit applications that Title: FCC Form 2100, Application for will extend their coverage contours. In addition, there will be a priority FEDERAL COMMUNICATIONS Media Bureau Audio and Video Service COMMISSION Authorization, Schedule E (Former FCC processing window for licensees of Form 301–CA); 47 CFR Sections reassigned stations, UHF-to-VHF 73.3700(b)(1)(i)-(v) and (vii),(b)(2)(i) and stations, or High-VHF-to-Low-VHF [OMB 3060–0932] (ii); 47 CFR Section 74.793(d). stations that, for reasons beyond their Form No.: FCC Form 2100, Schedule Information Collection Being Reviewed control, are unable to construct facilities E (Application for Media Bureau Audio by the Federal Communications that meet the technical parameters and Video Service Authorization) Commission specified in the Channel Reassignment (Former FCC Form 301–CA). Public Notice, or the permissible AGENCY: Federal Communications Type of Review: Revision of a contour coverage variance from those currently approved information Commission. technical parameters specified in collection. ACTION: Notice and request for Respondents: Business or other for- section 73.3700(b)(1)(ii) or (iii). Channel comments. profit entities; Not for profit institutions; sharee stations file a minor change application for a construction permit for SUMMARY: As part of its continuing effort State, Local or Tribal Government. Number of Respondents and the channel on which the channel to reduce paperwork burdens, and as sharer operates at least sixty (60) days required by the Paperwork Reduction Responses: 725 respondents and 725 prior to the date by which it must Act (PRA) of 1995 (44 U.S.C. 3501– responses. Estimated Time per Response: 2.25 terminate operations on its pre-auction 3520), the Federal Communications hours–6 hours (for a total of 8.25 hours). channel and must include a copy of the Commission (FCC or Commission) Frequency of Response: One-time channel sharing agreement. In addition, invites the general public and other reporting requirement; On occasion Federal agencies to take this subject to limitations set out in the reporting requirement; Third party rules, a Class A licensee of a reassigned opportunity to comment on the disclosure requirement; Recordkeeping following information collections. station, a UHF-to-VHF station, or a requirement. High-VHF-to-Low-VHF station may file Comments are requested concerning: Obligation to Respond: Required to a minor change application for a whether the proposed collection of obtain or retain benefits. The statutory construction permit on FCC Form 2100 information is necessary for the proper authority for this collection is contained Schedule E during a filing window to be performance of the functions of the in 47 U.S.C. 151, 154(i), 157 and 309(j) Commission, including whether the as amended; Middle Class Tax Relief announced by the Media Bureau by information shall have practical utility; and Job Creation Act of 2012, Public public notice, in order to request a the accuracy of the Commission’s Law 112–96, §§ 6402 (codified at 47 change in the technical parameters burden estimate; ways to enhance the U.S.C. 309(j)(8)(G)), 6403 (codified at 47 specified in the Channel Reassignment quality, utility, and clarity of the U.S.C. 1452), 126 Stat. 156 (2012) Public Notice with respect to height information collected; ways to minimize (Spectrum Act) and the Community above average terrain (HAAT), effective the burden of the collection of Broadcasters Protection Act of 1999. radiated power (ERP), or transmitter information on the respondents, Total Annual Burden: 5,981 hours. location that would be considered a including the use of automated Annual Cost Burden: $3,949,550. minor change under sections collection techniques or other forms of Privacy Act Impact Assessment: No 73.3572(a)(1), (2) or 74.787(b). FCC information technology; and ways to impact(s). Form 2100, Schedule E is also being further reduce the information Nature and Extent of Confidentiality: modified to accommodate new channel collection burden on small business There is no need for confidentiality with sharing provisions. concerns with fewer than 25 employees. this collection of information.

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Federal Communications Commission. Washington, DC 20554. In addition, the program.3 It also described the basis for Marlene H. Dortch, complete text is available on the FCC’s initiating the debarment proceeding Secretary, Office of the Secretary. Web site at http://www.fcc.gov. against Icon, the applicable debarment [FR Doc. 2015–28627 Filed 11–10–15; 8:45 am] Federal Communications Commission. procedures, and the effect of debarment. As discussed in the Notice of BILLING CODE 6712–01–P Jeffrey J. Gee, Suspension, on June 12, 2014, Icon was Chief, Investigations and Hearings Division, convicted of making a false statement in Enforcement Bureau. FEDERAL COMMUNICATIONS violation of 18 U.S.C. 1002(a)(2), in COMMISSION October 13, 2015 connection with fraudulent claims DA 15–1160 against the federal Lifeline telephone [DA 15–1160] program (Lifeline program).4 Icon SENT VIA CERTIFIED MAIL, RETURN participated in the Lifeline program Notice of Debarment; Federal Lifeline RECEIPT REQUESTED 5 Universal Service Support Mechanism from July 2011 until September 2013. Mr. Wes Yui Chew Specifically, Icon pled guilty to AGENCY: Federal Communications President knowingly making a false statement to Commission. Icon Telecom, Inc. the Universal Service Administrative ACTION: Notice. c/o Daniel G. Webber, Jr. Company 6 through its submission of 58 Ryan Whaley Coldiron Shandy PLLC fabricated customer recertification SUMMARY: The Enforcement Bureau 119 N. Robinson Avenue, Suite 900 forms, which included fictitious (Bureau) gives notice of Icon Telecom, Oklahoma City, OK 73102 signatures, in response to an audit Inc.’s (Icon) debarment from the federal Re: Notice of Debarment, File No. EB– request.7 Pursuant to section 54.8(c) of Lifeline universal service support IHD–15–00019108 the Commission’s rules, Icon’s mechanism (Lifeline program) for a Dear Mr. Chew: conviction of criminal conduct in period of three years. During this The Federal Communications connection with the Lifeline program is debarment period, Icon is prohibited Commission (Commission) hereby the basis for this debarment.8 from participating in activities notifies Icon Telecom, Inc. (Icon) that, In accordance with the Commission’s associated with or related to the Lifeline pursuant to section 54.8 of the debarment rules, Icon was required to program, including the receipt of funds Commission’s rules, Icon is prohibited file with the Commission any or discounted services through the from participating in activities opposition to the suspension or its Lifeline program, or consulting with, associated with or related to the federal scope, or to the proposed debarment or assisting, or advising applicants or low-income support mechanism its scope, no later than 30 calendar days service providers regarding the Lifeline (Lifeline program) for three years from from either the date of Icon’s receipt of program. either the date of Icon’s receipt of this the Notice of Suspension or of its DATES: Debarment commences on the Notice of Debarment or of its publication in the Federal Register, date Icon receives the debarment letter publication in the Federal Register, whichever date occurred first.9 The or November 12, 2015, whichever comes whichever comes first (Debarment Commission received no opposition first, for a period of three years. Date).1 from Icon.10 FOR FURTHER INFORMATION CONTACT: On May 26, 2015, the Commission’s Celia Lewis, Paralegal Specialist, Enforcement Bureau (Bureau) sent Icon 3 47 CFR 54.8(a)(1) and (d). Federal Communications Commission, a notice of suspension and initiation of 4 Any further reference in this letter to ‘‘your conviction’’ refers to your guilty plea and Enforcement Bureau, Investigations and debarment proceeding (Notice of subsequent sentencing in United States v. Icon Hearings Division, Room 4–A422, 445 Suspension) that was published in the Telecom, Criminal Docket No. 5:14-cr–00170–D, 12th Street SW., Washington, DC 20554. Federal Register on July 9, 2015.2 The Plea Agreement (W.D. Okla. filed June 12, 2014) Celia Lewis may be contacted by phone Notice of Suspension suspended Icon (Plea Agreement). See also Lifeline & Link Up Reform & Modernization, WC Docket No. 11–42, CC at (202) 418–7456 or email at from participating in any activities Docket No. 96–45, WC Docket No. 03–109, Report [email protected]. If Ms. Lewis is associated with or related to the Lifeline and Order and Further Notice of Proposed unavailable, you may contact Mr. Kalun program, including receiving funds or Rulemaking, 27 FCC Rcd 6656 (2012) (Lifeline Lee, Deputy Chief, Investigations and discounted services through the Lifeline Reform Order). 5 Hearings Division, by telephone at (202) United States v. Icon Telecom, Criminal Docket program, or consulting with, assisting, No. 5:14-cr–00170–D, Information at 4 (W.D. Okla. 418–0796 and by email at Kalun.Lee@ or advising applicants or service filed June 3, 2014) (Information). fcc.gov. providers regarding the Lifeline 6 The Universal Service Administrative Company SUPPLEMENTARY INFORMATION: (USAC) is an independent, not-for-profit The corporation designated by the Commission as the Bureau debars Icon for a period of three 1 47 CFR 54.8 (e) and (g); 47 CFR 0.111 (delegating to the Bureau authority to resolve administrator of the Lifeline program. See About years pursuant to 47 CFR 54.8 and universal service suspension and debarment USAC, http://www.usac.org/about/. 0.111(a)(14). Icon’s conviction for proceedings). In 2007, the Commission extended 7 Information at 8; Plea Agreement at 2; see also making a false statement in violation of the debarment rules to apply to all federal universal United States Attorney’s Office, Western District of Oklahoma, Press Release, Icon Telecom and Its 18 U.S.C. 1002(a)(2), in connection with service support mechanisms, including the Lifeline program. See Comprehensive Review of the Owner Plead Guilty And Agree To Forfeit More fraudulent claims against the Lifeline Universal Service Fund Management, Than $27 Million In Connection With Federal program is the basis for this debarment. Administration, & Oversight, Report and Order, 22 Wireless Telephone Subsidy Program, June 12, Attached is the Notice of Debarment, FCC Rcd 16372, 16410–12 (2007) (Program 2014, available at http://www.justice.gov/usao- wdok/pr/icon-telecom-and-its-owner-plead-guilty- DA 15–1160, which was mailed to Icon Management Order) (renumbering section 54.521 of the universal service debarment rules as section and-agree-forfeit-more-27-million-connection. and released on October 13, 2015. The 54.8 and amending paragraphs (a)(1), (a)(5), (c), (d), 8 47 CFR 54.8(c). complete text of the Notice of (e)(2)(i), (e)(3), (e)(4), and (g)). 9 Id. § 54.8 (e)(3) through (4). Any opposition had Debarment is available for public 2 Letter from Jeffrey J. Gee, Chief, Investigations to be filed no later than July 15, 2015. inspection and copying during regular and Hearings Division, FCC Enforcement Bureau, to 10 On May 27, 2015, Icon responded to the Notice Wes Yui Chew, President, Icon Telecom, Inc., of Suspension stating that it had relinquished its business hours at the FCC Reference notice of suspension and initiation of debarment eligible telecommunications carrier (ETC) Information Center, Portal II, 445 12th proceeding, 30 FCC Rcd 4993 (Enf. Bur. 2015); 80 designation in September of 2013. See Email from Street SW., Room CY–A257, FR 39429–01 (July 9, 2015). George M. Makohin, Counsel for Icon Telecom, Inc.,

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For the foregoing reasons, Icon is FOR FURTHER INFORMATION CONTACT: FEDERAL MARITIME COMMISSION debarred from involvement with the Cathy Williams, Office of the Managing Lifeline program for three years from the Director, at (202) 418–2918, or email: Notice of Agreements Filed Debarment Date.11 During this [email protected]. The Commission hereby gives notice debarment period, Icon is excluded SUPPLEMENTARY INFORMATION: of the filing of the following agreements from participating in any activities OMB Control Number: 3060–0647. under the Shipping Act of 1984. associated with or related to the Lifeline OMB Approval Date: September 25, Interested parties may submit comments program, including the receipt of funds 2015. on the agreements to the Secretary, or discounted services through the OMB Expiration Date: September 30, Federal Maritime Commission, Lifeline program, or consulting with, 2018. assisting, or advising applicants or Title: Annual Cable Price Survey and Washington, DC 20573, within twelve service providers regarding the Lifeline Supplemental Questions, FCC Form days of the date this notice appears in program.12 333. the Federal Register. Copies of the Form Number: FCC Form 333. agreements are available through the Sincerely yours, Respondents: Business or other for- Commission’s Web site (www.fmc.gov) Jeffrey J. Gee profit entities; State, local or Tribal or by contacting the Office of Chief, Investigations and Hearings Division, Government. Agreements at (202)–523–5793 or Enforcement Bureau Number of Respondents and [email protected]. cc: Johnnay Schrieber, Universal Service Responses: 776 respondents and 776 Agreement No.: 011539–020. Administrative Company (via email) responses. Title: HLAG/NYK/MSC Vessel Rashann Duvall, Universal Service Estimated Time per Response: 7 Sharing Agreement. Administrative Company (via email) hours. Chris M. Stevens, United States Attorney’s Parties: Companhia Libra de Office, Western District of Oklahoma (via Frequency of Response: Annual Navegacao; Compania Libra de email) reporting requirement. Navegacion Uruguay S.A.; Hapag-Lloyd Scott E. Williams, United States Attorney’s Total Annual Burden: 5,432 hours. AG; Nippon Yusen Kaisha; and MSC Office, Western District of Oklahoma (via Total Annual Cost: None. Mediterranean Shipping Company SA. Obligation to Respond: Mandatory. email) Filing Party: Wayne R. Rohde, Esq.; The statutory authority for this [FR Doc. 2015–28736 Filed 11–10–15; 8:45 am] Cozen O’Connor, 1200 19th Street NW., information collection is in Sections 4(i) BILLING CODE 6712–01–P Washington, DC 20036. and 623(k) of the Communications Act Synopsis: The Amendment would of 1934, as amended. Nature and Extent of Confidentiality: delete CLNU as a party to the FEDERAL COMMUNICATIONS agreement, and revise the Applicable COMMISSION If individual respondents to this survey wish to request confidential treatment of Law, Arbitration and Force Majeure [OMB 3060–0647] any data provided in connection with provisions of the agreement. this survey, they can do so upon written Agreement No.: 012369. Information Collection Approved by request, in accordance with Sections Title: Crowley/Zim Space Charter the Office of Management and Budget 0.457 and 0.459 of the Commission’s Agreement. (OMB) rules. To request confidential treatment Parties: Crowley Caribbean Services, LLC and Zim Integrated Shipping AGENCY: Federal Communications of their data, respondents must describe Services, Ltd. Commission. the specific information they wish to Filing Party: Wayne R. Rohde, Esq.; ACTION: Notice. protect and provide an explanation of why such confidential treatment is Cozen O’Conner; 1200 19th Street NW., SUMMARY: The Federal Communications appropriate. If a respondent submits a Washington, DC 20036. Commission (FCC) has received Office request for confidentiality, the Synopsis: The Agreement authorizes of Management and Budget (OMB) Commission will review it and make a Crowley to charter space to Zim in the approval for a revision of a currently determination. trade between Port Everglades, FL and approved public information collection Privacy Impact Assessment: No Kingston, Jamaica. pursuant to the Paperwork Reduction impact(s). Agreement No.: 012370. Act of 1995 (44 U.S.C. 3501–3520). An Needs and Uses: The Cable Television Title: Volkswagen Konzernlogistik agency may not conduct or sponsor a Consumer Protection and Competition GmbH & Co. OHG/Hyundai Glovis Co., collection of information unless it Act of 1992 (‘‘Cable Act’’) requires the Ltd. Soace Charter Agreement. displays a currently valid OMB control Commission to publish annually a Parties: Volkswagen Konzernlogistik number, and no person is required to report on average rates for basic cable GmbH & Co. OHG and Hyundai Glovis respond to a collection of information service, cable programming service, and Co., Ltd. unless it displays a currently valid equipment. The report must compare Filing Party: Wayne R. Rohde, Esq.; control number. Comments concerning the prices charged by cable operators Cozen O’Conner; 1200 19th Street NW., the accuracy of the burden estimates subject to effective competition and Washington, DC 20036. and any suggestions for reducing the those that are not subject to effective Synopsis: The Agreement authorizes burden should be directed to the person competition. The Annual Cable Industry the parties to charter space to/from one listed in the FOR FURTHER INFORMATION Price Survey is intended to collect the another in the trade between Germany CONTACT section below. data needed to prepare that report. The and the U.S. West Coast. data from these questions are needed to By Order of the Federal Maritime to Celia Lewis, Paralegal Specialist, Investigations complete this report. Commission. and Hearings Division, FCC Enforcement Bureau (May 27, 2015, 16:32 EDT). Icon did not oppose its Federal Communications Commission. Dated: November 6, 2015. suspension from the Lifeline program or the Marlene H. Dortch, Rachel E. Dickon, Commission’s debarment proceeding against the Secretary, Office of the Secretary. Assistant Secretary. company. Id. 11 47 CFR 54.8(g). [FR Doc. 2015–28626 Filed 11–10–15; 8:45 am] [FR Doc. 2015–28738 Filed 11–10–15; 8:45 am] 12 47 CFR 54.8(a)(1), (d), and (g). BILLING CODE 6712–01–P BILLING CODE 6730–01–P

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FEDERAL RESERVE SYSTEM hours and Notice of frivolous disputes theft. In addition, the FACT Act to consumers, 142,792 hours. provided consumers with the right to Agency Information Collection Estimated average hours per response: obtain a copy of their consumer report Activities: Announcement of Board Negative information notice: 15 annually without cost. Improving Approval Under Delegated Authority minutes; Affiliate marketing: Notices to consumers’ access to their credit report and Submission to OMB consumers, 18 hours and Consumer is intended to help increase the response, 5 minutes; Red flags: 37 AGENCY: accuracy of data in the consumer Board of Governors of the hours; Address discrepancies: 4 hours; Federal Reserve System. reporting system. Risk-based pricing: Notice to Since 2011, the Consumer Financial SUMMARY: Notice is hereby given of the consumers, 5 hours; Furnisher duties: Protection Bureau has been responsible final approval of a proposed information Policies and procedures, 40 hours and for issuing most FCRA regulations. The collection by the Board of Governors of Notice of frivolous disputes to Federal Reserve retained rule-writing the Federal Reserve System (Board) consumers, 14 minutes. authority for certain provisions of the under OMB delegated authority. Board- Number of respondents: Negative FCRA applicable to motor vehicle approved collections of information are information notice: 1,500 financial dealers and provisions of the FCRA that incorporated into the official OMB institutions; Affiliate marketing: Notices require identity theft prevention inventory of currently approved to consumers, 1,402 financial programs, regulate the disposal of collections of information. Copies of the institutions and 1,282,000 Consumer consumer information, and require card Paperwork Reduction Act Submission, response; Red flags: 2,024 financial issuers to validate consumers’ supporting statements and approved institutions; Address discrepancies: notifications of changes of address. collection of information instrument(s) 1,500 financial institutions; Risk-based Current Actions: On August 11, 2015, are placed into OMB’s public docket pricing: Notice to consumers, 1,500 the Federal Reserve published a notice files. The Federal Reserve may not financial institutions; Furnisher duties: in the Federal Register (80 FR 48104) conduct or sponsor, and the respondent Policies and procedures, 1,500 financial requesting public comment for 60 days is not required to respond to, an institutions and 611,966, Notice of on the extension, without revision, of information collection that has been frivolous disputes to consumers. extended, revised, or implemented on or General description of report: This the Recordkeeping and Disclosure after October 1, 1995, unless it displays information collection is mandatory Requirements Associated with the a currently valid OMB control number. pursuant to Dodd-Frank Wall Street Regulations Implementing the Fair Credit Reporting Act (Regulation V) . FOR FURTHER INFORMATION CONTACT: Reform and Consumer Protection Act The comment period for this notice Federal Reserve Board Acting Clearance (12 U.S.C. 5519) and the Fair Credit expired on October 13, 2015. The Officer—Nuha Elmaghrabi—Office of Reporting Act (FCRA) (15 U.S.C. 1681m, Federal Reserve did not receive any the Chief Data Officer, Board of 1681w, and 1681s). Because the notices comments. The information collection Governors of the Federal Reserve and disclosures required are not will be extended for three years, without System, Washington, DC 20551 (202) provided to the Federal Reserve, and all revision, as proposed. 452–3829. Telecommunications records thereof are maintained at state Device for the Deaf (TDD) users may member banks, no issue of Board of Governors of the Federal Reserve contact (202) 263–4869, Board of confidentiality arises under the System, November 5, 2015. Governors of the Federal Reserve Freedom of Information Act. Robert deV. Frierson, System, Washington, DC 20551. Abstract: The FCRA was enacted in Secretary of the Board. OMB Desk Officer—Shagufta Ahmed— 1970 based on a Congressional finding [FR Doc. 2015–28653 Filed 11–10–15; 8:45 am] that the banking system is dependent on Office of Information and Regulatory BILLING CODE 6210–01–P Affairs, Office of Management and fair and accurate credit reporting.1 The Budget, New Executive Office FCRA was enacted to ensure consumer Building, Room 10235, 725 17th reporting agencies exercise their FEDERAL RESERVE SYSTEM Street NW., Washington, DC 20503. responsibilities with fairness, Final approval under OMB delegated impartiality, and a respect for the Formations of, Acquisitions by, and authority of the extension for three consumer’s right to privacy. The FCRA Mergers of Savings and Loan Holding years, without revision, of the following requires consumer reporting agencies to Companies; Correction adopt reasonable procedures that are report: This notice corrects a notice (FR Doc. Report title: Recordkeeping and fair and equitable to the consumer with 2015–28261) published on page 68540 Disclosure Requirements Associated regard to the confidentiality, accuracy, of the issue for Thursday, November 5, with the Regulations Implementing the relevancy, and proper utilization of 2015. Fair Credit Reporting Act (Regulation consumer information. Under the Federal Reserve Bank of V). Congress substantially amended the Agency form number: Reg V. FCRA upon the passage of the Fair and Atlanta, the entry for Oculina Banc OMB control number: 7100–0308. Accurate Credit Transactions Act of Corp, Vero Beach, Florida, is revised to Frequency: On occasion. 2003 (FACT Act).2 The FACT Act read as follows: Reporters: Financial institutions and created many new responsibilities for A. Federal Reserve Bank of Atlanta consumers. consumer reporting agencies and users (Chapelle Davis, Assistant Vice Estimated annual reporting hours: of consumer reports. It contained many President) 1000 Peachtree Street NE., Negative information notice: 375 hours; new consumer disclosure requirements, Atlanta, Georgia 30309: Affiliate marketing: Notices to as well as provisions to address identity 1. Oculina Banc Corp, Vero Beach, consumers, 25,236 hours and Consumer Florida; proposes to merge with its response, 106,833 hours; Red flags: 1 The FCRA is one part of the Consumer Credit parent company, Colonial Banc Corp, 74,888 hours; Address discrepancies: Protection Act which also includes the Truth in Vero Beach, Florida. Oculina Banc Corp Lending Act, Equal Credit Opportunity Act, and 6,000 hours; Risk-based pricing: Notice Fair Debt Collection Practices Act. 15 U.S.C. 1601 will survive the merger. Colonial Banc to consumers, 90,000 hours; Furnisher et seq. Corp and Oculina Banc Corp control duties: Policies and procedures, 60,000 2 Public Law 108–159, 117 Stat. 1952. Oculina Bank, Fort Pierce, Florida.

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Comments on this application must 225), and all other applicable statutes loan holding company, including the be received by November 30, 2015. and regulations to become a bank companies listed below. Board of Governors of the Federal Reserve holding company and/or to acquire the The applications listed below, as well System, November 6, 2015. assets or the ownership of, control of, or as other related filings required by the Michael J. Lewandowski, the power to vote shares of a bank or Board, are available for immediate inspection at the Federal Reserve Bank Associate Secretary of the Board. bank holding company and all of the banks and nonbanking companies indicated. The application also will be [FR Doc. 2015–28721 Filed 11–10–15; 8:45 am] owned by the bank holding company, available for inspection at the offices of BILLING CODE 6210–01–P including the companies listed below. the Board of Governors. Interested The applications listed below, as well persons may express their views in as other related filings required by the writing on the standards enumerated in FEDERAL RESERVE SYSTEM Board, are available for immediate the HOLA (12 U.S.C. 1467a(e)). If the Change in Bank Control Notices; inspection at the Federal Reserve Bank proposal also involves the acquisition of Acquisitions of Shares of a Bank or indicated. The applications will also be a nonbanking company, the review also Bank Holding Company available for inspection at the offices of includes whether the acquisition of the the Board of Governors. Interested nonbanking company complies with the The notificants listed below have persons may express their views in standards in section 10(c)(4)(B) of the applied under the Change in Bank writing on the standards enumerated in HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless Control Act (12 U.S.C. 1817(j)) and the BHC Act (12 U.S.C. 1842(c)). If the otherwise noted, nonbanking activities § 225.41 of the Board’s Regulation Y (12 proposal also involves the acquisition of will be conducted throughout the CFR 225.41) to acquire shares of a bank a nonbanking company, the review also United States. or bank holding company. The factors includes whether the acquisition of the Unless otherwise noted, comments that are considered in acting on the nonbanking company complies with the regarding each of these applications notices are set forth in paragraph 7 of standards in section 4 of the BHC Act must be received at the Reserve Bank the Act (12 U.S.C. 1817(j)(7)). (12 U.S.C. 1843). Unless otherwise indicated or the offices of the Board of The notices are available for noted, nonbanking activities will be Governors not later than December 7, immediate inspection at the Federal conducted throughout the United States. 2015. Reserve Bank indicated. The notices Unless otherwise noted, comments A. Federal Reserve Bank of Boston also will be available for inspection at regarding each of these applications (Prabal Chakrabarti, Senior Vice the offices of the Board of Governors. must be received at the Reserve Bank President) 600 Atlantic Avenue, Boston, Interested persons may express their indicated or the offices of the Board of Massachusetts 02210–2204: views in writing to the Reserve Bank Governors not later than December 7, 1. Radius Investment Corp., and indicated for that notice or to the offices 2015. Radius Merger Sub, Inc., both in Boston, of the Board of Governors. Comments A. Federal Reserve Bank of Atlanta Massachusetts; to become savings and must be received not later than (Chapelle Davis, Assistant Vice loan holding companies by acquiring November 27, 2015. President) 1000 Peachtree Street NE., Radius Bancorp, Inc., and thereby A. Federal Reserve Bank of Chicago Atlanta, Georgia 30309: indirectly acquiring Radius Bank, both (Colette A. Fried, Assistant Vice 1. Ameris Bancorp, Moultrie, Georgia; in Boston, Massachusetts. President) 230 South LaSalle Street, to merge with Jacksonville Bancorp, Board of Governors of the Federal Reserve Chicago, Illinois 60690–1414: Inc., and thereby indirectly acquire The System, November 6, 2015. 1. AB Anderson Family Trust, Oneida, Jacksonville Bank, both of Jacksonville, Michael J. Lewandowski, Illinois, and John W. Anderson, Florida. Associate Secretary of the Board. Galesburg, Illinois, individually and as Board of Governors of the Federal Reserve [FR Doc. 2015–28722 Filed 11–10–15; 8:45 am] trustee of the AB Anderson Family System, November 6, 2015. BILLING CODE 6210–01–P Trust, together as a group acting in Michael J. Lewandowski, concert with Ann Mustard, Dulles, Associate Secretary of the Board. Virginia, and B. Susan Hill, Galesburg, [FR Doc. 2015–28719 Filed 11–10–15; 8:45 am] FEDERAL RETIREMENT THRIFT Illinois; to retain voting shares of BILLING CODE 6210–01–P INVESTMENT BOARD Anderson Bancorp, Inc., and indirectly retain voting shares of Anderson State Senior Executive Service Performance Bank, both in Oneida, Illinois. FEDERAL RESERVE SYSTEM Review Board Board of Governors of the Federal Reserve System, November 6, 2015. Formations of, Acquisitions by, and AGENCY: Federal Retirement Thrift Michael J. Lewandowski, Mergers of Savings and Loan Holding Investment Board. ACTION: Associate Secretary of the Board. Companies Notice. [FR Doc. 2015–28720 Filed 11–10–15; 8:45 am] The companies listed in this notice SUMMARY: This notice announces the BILLING CODE 6210–01–P have applied to the Board for approval, appointment of the members of the pursuant to the Home Owners’ Loan Act Senior Executive Service Performance (12 U.S.C. 1461 et seq.) (HOLA), Review Boards for the Federal FEDERAL RESERVE SYSTEM Regulation LL (12 CFR part 238), and Retirement Thrift Investment Board. Regulation MM (12 CFR part 239), and The purpose of the Performance Review Formations of, Acquisitions by, and Boards is to make written Mergers of Bank Holding Companies all other applicable statutes and regulations to become a savings and recommendations on annual summary The companies listed in this notice loan holding company and/or to acquire ratings and awards to the appointing have applied to the Board for approval, the assets or the ownership of, control authorities on the performance of senior pursuant to the Bank Holding Company of, or the power to vote shares of a executives. Act of 1956 (12 U.S.C. 1841 et seq.) savings association and nonbanking DATES: This notice is effective (BHC Act), Regulation Y (12 CFR part companies owned by the savings and November 6, 2015.

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FOR FURTHER INFORMATION CONTACT: relating to the State Plan for writing to the Administration for Kelly Powell, HR Specialist, at 202– Independent Living (SPIL). Community Living, Administration on 942–1681. DATES: Submit written or electronic Disabilities, Independent Living SUPPLEMENTARY INFORMATION: Title 5, comments on the collection of Administration. The five core services U.S. Code, 4314(c)(4), requires that the information by January 11, 2016. are: Advocacy, information and referral, appointment of Performance Review ADDRESSES: Submit electronic independent living skills training, peer Board members be published in the comments on the collection of counseling, and transition services. Federal Register before Board service information to: veronica.hogan@ WIOA included three prongs to the 5th commences. The following persons will acl.hhs.gov. Submit written comments core service: • serve on the Federal Retirement Thrift on the collection of information to Facilitating the transition of Investment Board’s Performance Review Administration for Community, individuals with significant disabilities Boards which will review initial Independent Living Administration, 550 from nursing homes and other summary ratings to ensure the ratings 12th Street Southwest, PCP Building, institutions to home and community- are consistent with established Room 5044, Washington, DC 20202, based residences, with the requisite performance requirements, reflect attention Veronica Hogan. supports and services; • meaningful distinctions among senior FOR FURTHER INFORMATION CONTACT: Provide assistance to individuals executives based on their relative Veronica Hogan, Grant Management with significant disabilities who are at performance and organizational results Specialist, (202) 245–7378 or by email risk of entering institutions so that the and provide recommendations for [email protected]. individuals may remain in the ratings, awards, and pay adjustments in community, and SUPPLEMENTARY INFORMATION: Under the • a fair and equitable manner: James PRA (44 U.S.C. 3501–3520), Federal Facilitate the transition of youth Petrick, Renee Wilder, and Karen agencies must obtain approval from the who are individuals with significant Vaughn Peck. Office of Management and Budget disabilities, who were eligible for individualized education programs Megan Grumbine, (OMB) for each collection of information they conduct or sponsor. under section 614(d) of the Individuals Deputy General Counsel, Federal Retirement with Disabilities Act (20 U.S.C. Thrift Investment Board. ‘‘Collection of information’’ is defined in 44 U.S.C. 3502(3) and 5 CFR 1414(d)), and who have completed their [FR Doc. 2015–28735 Filed 11–10–15; 8:45 am] 1320.3(c) and includes agency request secondary education or otherwise left BILLING CODE 6760–01–P or requirements that members of the school, to postsecondary life. public submit reports, keep records, or ACL estimates the burden of this provide information to a third party. collection of information as follows: 56 DEPARTMENT OF HEALTH AND Section 3506(c)(2)(A) of the PRA (44 SPIL respond annually which should be HUMAN SERVICES U.S.C. 3506(c)(2)(A)) requires Federal an average burden of 60 hours for each agencies to provide a 60-day notice in grantee. The aggregate hour burden for Administration for Community Living the Federal Register concerning each all grantees is an estimated 3,360 hours (56 grantees × 60 hours each). These Agency Information Collection proposed collection of information, including each proposed extension of an estimated hours include the time Activities; Proposed Collection; required for reading, studying and Comment Request; Extension State existing collection of information, before submitting the collection to OMB planning for the new SPIL; conducting Plan for Independent Living (SPIL) required public hearings; gathering and Public Law (105–220) for the State for approval. To comply with this requirement, ACL/ILA is publishing reviewing pertinent information; Independent Living (SILS) and Centers completing the SPIL assurances and for Independent Living (CIL) Program notice of the proposed collection of information set forth in this document. narrative sections; reviewing draft and Authorized by Title VII, Chapter 1, of final versions of the completed SPIL; the, as Amended by the Workforce With respect to the following collection of information, ACL/ILA invites and submission of the final SPIL to Innovation and Opportunity Act (WIOA, ACL. Pub. L. 113–128) [Rehabilitation Act] comments on: (1) Whether the proposed collection of information is necessary Dated: November 5, 2015. AGENCY: Center for Independent Living for the proper performance of ACL/ Kathy Greenlee, Administration, Administration for ILA’s functions, including whether the Administrator and Assistant Secretary for Community Living (ACL), HHS. information will have practical utility; Aging. ACTION: Notice. (2) the accuracy of ACL/ILA estimate of [FR Doc. 2015–28745 Filed 11–10–15; 8:45 am] the burden of the proposed collection of BILLING CODE 4154–01–P SUMMARY: The Administration for information, including the validity of Community Living (ACL), Independent the methodology and assumptions used; Living Administration is announcing an (3) ways to enhance the quality, utility, DEPARTMENT OF HEALTH AND opportunity for public comment on the and clarity of the information to be HUMAN SERVICES proposed collection of certain collected; and (4) ways to minimize the information. Under the Paperwork burden of the collection of information Administration for Community Living Reduction Act of 1995 (the PRA), on respondents, including through the Federal agencies are required to publish use of automated collection techniques Agency Information Collection notice in the Federal Register when appropriate, and other forms of Activities; Proposed Collection; concerning each proposed collection of information technology. Comment Request; Semi-Annual and information, including each proposed The Independent Living Program is Final Reporting Requirements for extension of an existing collection of required by federal statute and Discretionary Grant Programs information, and to allow 60 days for regulation requires the collection of this AGENCY: Administration for Community public comment in response to the information every three years. The Living, HHS. notice. This notice solicits comments on three-year period for the next SPIL is FY ACTION: Notice. the information collection requirements 2018–2020. The SPIL provided in

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SUMMARY: The Administration for proposed collection of information, This notice announces a forthcoming Community Living (ACL) is announcing including the validity of the meeting of a public advisory committee an opportunity for public comment on methodology and assumptions used; (3) of the Food and Drug Administration the proposed collection of certain ways to enhance the quality, utility, and (FDA). The meeting will be open to the information by the agency. Under the clarity of the information to be public. Paperwork Reduction Act of 1995 (the collected; and (4) ways to minimize the Name of Committee: Endocrinologic PRA), Federal agencies are required to burden of the collection of information and Metabolic Drugs Advisory publish notice in the Federal Register on respondents, including through the Committee. concerning each proposed collection of use of automated collection techniques General Function of the Committee: information, including each proposed when appropriate, and other forms of To provide advice and extension of an existing collection of information technology. recommendations to the Agency on information, and to allow 60 days for The Administration for Community FDA’s regulatory issues. public comment in response to the Living (ACL) plans to continue an Date and Time: The meeting will be notice. This notice solicits comments on existing approved collection of held on December 14, 2015, from 8 a.m. the information collection requirements information for semi-annual and final to 5 p.m. relating to the continuation of an reports pursuant to the requirements of Location: FDA White Oak Campus, existing collection for Performance its discretionary grant programs. 10903 New Hampshire Ave., Bldg. 31 Progress Reports previously approved Through its discretionary grant Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993–0002. for discretionary grants funded by the programs, ACL supports projects for the Answers to commonly asked questions U.S. Administration for Community purpose of developing and testing new including information regarding special Living (ACL). knowledge and program innovations accommodations due to a disability, DATES: Submit written or electronic with the potential for contributing to the visitor parking, and transportation may comments on the collection of independence, well-being, and health of be accessed at: http://www.fda.gov/ information by January 11, 2016. older adults, people with disabilities AdvisoryCommittees/ ADDRESSES: across the lifespan, and their families Submit electronic AboutAdvisoryCommittees/ and caregivers. Deliverables required by comments on the collection of ucm408555.htm. information to: lori.stalbaum@ ACL of all grantees are semi-annual and Contact Person: Stephanie L. acl.hhs.gov. Submit written comments final reports, as provided for in the Begansky, Center for Drug Evaluation on the collection of information to Lori Department of Health and Human and Research, Food and Drug Stalbaum, Administration on Services regulations, 45 CFR part 74, Administration, 10903 New Hampshire Community Living, Washington, DC Section 74.51. These grantee Ave., Bldg. 31, Rm. 2417, Silver Spring, 20201 or by fax to Lori Stalbaum at 202– performance reporting requirements can MD 20993–0002, (301) 796–9001, FAX: 357–3469. be found on AoA’s Web site at http:// _ (301) 847–8533, [email protected], FOR FURTHER INFORMATION CONTACT: Lori www.acl.gov/Funding Opportunities/ or FDA Advisory Committee _ Stalbaum at 202–357–3452 or Grantee Info/Reporting.aspx. ACL Information Line, 1–800–741–8138 [email protected]. estimates the burden of this collection (301–443–0572 in the Washington, DC SUPPLEMENTARY INFORMATION: Under the of information as follows: Frequency: area). A notice in the Federal Register PRA (44 U.S.C. 3501–3520), Federal Semi-annually with the Final report about last minute modifications that agencies must obtain approval from the taking the place of the semi-annual impact a previously announced Office of Management and Budget report at the end of the final year of the advisory committee meeting cannot (OMB) for each collection of grant. Respondents: States, public always be published quickly enough to information they conduct or sponsor. agencies, private nonprofit agencies, provide timely notice. Therefore, you ‘‘Collection of information’’ is defined institutions of higher education, and should always check the Agency’s Web in 44 U.S.C. 3502(3) and 5 CFR organizations including tribal site at http://www.fda.gov/ 1320.3(c) and includes agency request organizations. Estimated Number of AdvisoryCommittees/default.htm and or requirements that members of the Responses: 600. Total Estimated Burden scroll down to the appropriate advisory public submit reports, keep records, or Hours: 12,000. committee meeting link, or call the provide information to a third party. Dated: November 5, 2015. advisory committee information line to Section 3506(c)(2)(A) of the PRA (44 Kathy Greenlee, learn about possible modifications U.S.C. 3506(c)(2)(A)) requires Federal Administrator and Assistant Secretary for before coming to the meeting. agencies to provide a 60-day notice in Aging. Agenda: The committee will discuss the Federal Register concerning each [FR Doc. 2015–28744 Filed 11–10–15; 8:45 am] the results of the IMProved Reduction of Outcomes: Vytorin Efficacy proposed collection of information, BILLING CODE 4154–01–P including each proposed extension of an International Trial (IMPROVE–IT). existing collection of information, IMPROVE–IT was a clinical trial that before submitting the collection to OMB DEPARTMENT OF HEALTH AND studied the effect of ezetimibe/ for approval. To comply with this HUMAN SERVICES simvastatin compared with simvastatin requirement, ACL is publishing notice on the occurrence of cardiovascular of the proposed collection of Food and Drug Administration events in patients with recent acute information set forth in this document. coronary syndrome. The results from With respect to the following collection [Docket No. FDA–2015–N–0001] this trial have been submitted to support of information, ACL invites comments supplemental new drug applications on: (1) Whether the proposed collection Endocrinologic and Metabolic Drugs 21445/S–038 and 21687/S–054, ZETIA of information is necessary for the Advisory Committee; Notice of Meeting (ezetimibe) and VYTORIN (ezetimibe/ proper performance of ACL’s functions, AGENCY: Food and Drug Administration, simvastatin) tablets, respectively, by including whether the information will HHS. MSD International GmbH. The proposed have practical utility; (2) the accuracy of indication for ZETIA (in combination ACTION: Notice. ACL’s estimate of the burden of the with a statin) and VYTORIN is to reduce

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the risk of cardiovascular events in Notice of this meeting is given under DEPARTMENT OF HEALTH AND patients with coronary heart disease. the Federal Advisory Committee Act (5 HUMAN SERVICES FDA intends to make background U.S.C. app. 2). material available to the public no later National Institutes of Health than 2 business days before the meeting. Dated: November 2, 2015. If FDA is unable to post the background Jill Hartzler Warner, National Heart, Lung, and Blood material on its Web site prior to the Associate Commissioner for Special Medical Institute; Notice of Closed Meeting Programs. meeting, the background material will Pursuant to section 10(d) of the be made publicly available at the [FR Doc. 2015–28672 Filed 11–10–15; 8:45 am] Federal Advisory Committee Act, as location of the advisory committee BILLING CODE 4164–01–P amended (5 U.S.C. App.), notice is meeting, and the background material hereby given of the following meeting. will be posted on FDA’s Web site after The meeting will be closed to the the meeting. Background material is DEPARTMENT OF HEALTH AND public in accordance with the available at http://www.fda.gov/ HUMAN SERVICES provisions set forth in sections AdvisoryCommittees/Calendar/ 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., default.htm. Scroll down to the National Institutes of Health as amended. The grant applications and appropriate advisory committee meeting the discussions could disclose link. National Heart, Lung, and Blood Procedure: Interested persons may Institute; Notice of Closed Meeting confidential trade secrets or commercial present data, information, or views, property such as patentable material, orally or in writing, on issues pending Pursuant to section 10(d) of the and personal information concerning before the committee. Written Federal Advisory Committee Act, as individuals associated with the grant submissions may be made to the contact amended (5 U.S.C. App.), notice is applications, the disclosure of which person on or before November 30, 2015. hereby given of the following meeting. would constitute a clearly unwarranted invasion of personal privacy. Oral presentations from the public will The meeting will be closed to the be scheduled between approximately public in accordance with the Name of Committee: National Heart, Lung, and Blood Institute Special Emphasis Panel; 12:45 p.m. and 1:45 p.m. Those provisions set forth in sections individuals interested in making formal NHLBI T32 Institutional Training Grants. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., oral presentations should notify the Date: December 10, 2015. as amended. The grant applications and contact person and submit a brief Time: 9:00 a.m. to 11:00 a.m. the discussions could disclose Agenda: To review and evaluate grant statement of the general nature of the confidential trade secrets or commercial applications. evidence or arguments they wish to property such as patentable material, Place: National Institutes of Health, Suite present, the names and addresses of 7189, 6701 Rockledge Drive, Bethesda, MD proposed participants, and an and personal information concerning individuals associated with the grant 20892, (Telephone Conference Call). indication of the approximate time Contact Person: Stephanie L. Constant, requested to make their presentation on applications, the disclosure of which Ph.D., Scientific Review Officer, Office of or before November 19, 2015. Time would constitute a clearly unwarranted Scientific Review/DERA, National Heart, allotted for each presentation may be invasion of personal privacy. Lung, and Blood Institute, 6701 Rockledge limited. If the number of registrants Name of Committee: National Heart, Lung, Drive, Room 7189, Bethesda, MD 20892, 301– 443–8784, [email protected]. requesting to speak is greater than can and Blood Institute Special Emphasis Panel be reasonably accommodated during the Short-term Research Education to Increase (Catalogue of Federal Domestic Assistance scheduled open public hearing session, Diversity. Program Nos. 93.233, National Center for Sleep Disorders Research; 93.837, Heart and FDA may conduct a lottery to determine Date: December 7, 2015. Vascular Diseases Research; 93.838, Lung the speakers for the scheduled open Time: 10:00 a.m. to 12:00 p.m. Diseases Research; 93.839, Blood Diseases public hearing session. The contact Agenda: To review and evaluate grant and Resources Research, National Institutes person will notify interested persons applications. of Health, HHS) regarding their request to speak by Place: National Institutes of Health, Suite Dated: November 5, 2015. November 20, 2015. 7189, 6701 Rockledge Drive, Bethesda, MD Persons attending FDA’s advisory 20892, (Telephone Conference Call). Michelle Trout, committee meetings are advised that the Contact Person: Stephanie L Constant, Program Analyst, Office of Federal Advisory Agency is not responsible for providing Ph.D., Scientific Review Officer, Office of Committee Policy. access to electrical outlets. Scientific Review/DERA, National Heart, [FR Doc. 2015–28661 Filed 11–10–15; 8:45 am] FDA welcomes the attendance of the Lung, and Blood Institute, 6701 Rockledge BILLING CODE 4140–01–P public at its advisory committee Drive, Room 7189, Bethesda, MD 20892, 301– meetings and will make every effort to 443–8784, [email protected]. accommodate persons with disabilities. (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND If you require accommodations due to a Program Nos. 93.233, National Center for HUMAN SERVICES disability, please contact Stephanie L. Sleep Disorders Research; 93.837, Heart and National Institutes of Health Begansky at least 7 days in advance of Vascular Diseases Research; 93.838, Lung the meeting. Diseases Research; 93.839, Blood Diseases Center for Scientific Review; Notice of FDA is committed to the orderly and Resources Research, National Institutes Closed Meetings conduct of its advisory committee of Health, HHS) meetings. Please visit our Web site at Pursuant to section 10(d) of the Dated: November 5, 2015. http://www.fda.gov/ Federal Advisory Committee Act, as AdvisoryCommittees/ Michelle Trout, amended (5 U.S.C. App.), notice is AboutAdvisoryCommittees/ Program Analyst, Office of Federal Advisory hereby given of the following meetings. ucm111462.htm for procedures on Committee Policy. The meetings will be closed to the public conduct during advisory [FR Doc. 2015–28650 Filed 11–10–15; 8:45 am] public in accordance with the committee meetings. BILLING CODE 4140–01–P provisions set forth in sections

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552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Health, 6701 Rockledge Drive, Room 4118, DEPARTMENT OF HEALTH AND as amended. The grant applications and MSC 7814, Bethesda, MD 20892, 301–408– HUMAN SERVICES the discussions could disclose 9694, [email protected]. confidential trade secrets or commercial Name of Committee: Center for Scientific National Institutes of Health property such as patentable material, Review Special Emphasis Panel Member Conflict: Cell Biology. and personal information concerning National Heart, Lung, And Blood Date: December 7, 2015. Institute; Notice of Closed Meeting individuals associated with the grant Time: 12:00 p.m. to 3:00 p.m. applications, the disclosure of which Agenda: To review and evaluate grant Pursuant to section 10(d) of the would constitute a clearly unwarranted applications. Federal Advisory Committee Act, as invasion of personal privacy. Agenda: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892, amended (5 U.S.C. App.), notice is Name of Committee: Center for Scientific (Telephone Conference Call). hereby given of the following meeting. Review Special Emphasis Panel Myalgic Contact Person: Janet M Larkin, Ph.D., The meeting will be closed to the Encephalomyelitis/Chronic Fatigue Scientific Review Officer, Center for public in accordance with the Syndrome. Scientific Review, National Institutes of provisions set forth in sections Date: December 2, 2015. Health, 6701 Rockledge Drive, Room 1102, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 1:00 p.m. to 4:00 p.m. MSC 7840, Bethesda, MD 20892, 301–806– as amended. The grant applications and Agenda: To review and evaluate grant 2765, [email protected]. applications. the discussions could disclose (Catalogue of Federal Domestic Assistance Contact Person: National Institutes of confidential trade secrets or commercial Program Nos. 93.306, Comparative Medicine; Health, 6701 Rockledge Drive, Bethesda, MD property such as patentable material, 93.333, Clinical Research, 93.306, 93.333, 20892, (Telephone Conference Call). 93.337, 93.393–93.396, 93.837–93.844, and personal information concerning Contact Person: M. Catherine Bennett, 93.846–93.878, 93.892, 93.893, National individuals associated with the grant Ph.D., Scientific Review Officer, Center for Institutes of Health, HHS) applications, the disclosure of which Scientific Review, National Institutes of would constitute a clearly unwarranted Health, 6701 Rockledge Drive, Room 5182, Dated: November 5, 2015. invasion of personal privacy. MSC 7846, Bethesda, MD 20892, 301–435– Carolyn Baum, 1766, [email protected]. Program Analyst, Office of Federal Advisory Name of Committee: National Heart, Lung, Name of Committee: Center for Scientific Committee Policy. and Blood Institute Special Emphasis Panel—R13 Conference Grant Application Review Special Emphasis Panel, RFA Panel: [FR Doc. 2015–28655 Filed 11–10–15; 8:45 am] Animal/Biological Resource Facilities. Review. Date: December 2, 2015. BILLING CODE 4140–01–P Date: December 9, 2015. Time: 1:00 p.m. to 2:00 p.m. Time: 9:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant Agenda: To review and evaluate grant applications. DEPARTMENT OF HEALTH AND applications. Place: National Institutes of Health, 6701 HUMAN SERVICES Place: National Institutes of Health, Room Rockledge Drive, Bethesda, MD 20892, 7178, 6701 Rockledge Drive, Bethesda, MD (Virtual Meeting). National Institutes of Health 20892 (Internet Assisted Meeting/ Contact Person: Andrea B. Kelly, Ph.D., Teleconference). Scientific Review Officer, Center for National Cancer Institute; Notice of Contact Person: William J. Johnson, Ph.D., Scientific Review, National Institutes of Charter Renewal Scientific Review Officer, Office of Scientific Health, 6701 Rockledge Drive, Room 3182, Review/DERA, National Heart, Lung, and MSC 7770, Bethesda, MD 20892, (301) 455– In accordance with Title 41 of the Blood Institute, 6701 Rockledge Drive, Room 1761, [email protected]. U.S. Code of Federal Regulations, 7178, Bethesda, MD 20892–7924, 301–435– 0725, [email protected]. Name of Committee: Center for Scientific Section 102–3.65(a), notice is hereby Review Special Emphasis Panel Program given that the Charter for the National (Catalogue of Federal Domestic Assistance Project: Early-life Exposures and Cancer Institute Board of Scientific Program Nos. 93.233, National Center for Sleep Disorders Research; 93.837, Heart and Development. Advisors was renewed for an additional Date: December 4–8, 2015. Vascular Diseases Research; 93.838, Lung two-year period on October 8, 2015. Diseases Research; 93.839, Blood Diseases Time: 11:00 a.m. to 7:00 p.m. It is determined that the National Agenda: To review and evaluate grant and Resources Research, National Institutes Cancer Institute Board of Scientific of Health, HHS) applications. Advisors is in the public interest in Place: National Institutes of Health, 6701 Dated: November 5, 2015. connection with the performance of Rockledge Drive, Bethesda, MD 20892, Michelle Trout, (Virtual Meeting). duties imposed on the National Cancer Institute and National Institutes of Program Analyst, Office of Federal Advisory Contact Person: Andrea B. Kelly, Ph.D., Committee Policy. Scientific Review Officer, Center for Health by law, and that these duties can Scientific Review, National Institutes of best be performed through the advice [FR Doc. 2015–28659 Filed 11–10–15; 8:45 am] Health, 6701 Rockledge Drive, Room 3182, and counsel of this group. BILLING CODE 4140–01–P MSC 7770, Bethesda, MD 20892, (301) 455– Inquiries may be directed to Jennifer 1761, [email protected]. Spaeth, Director, Office of Federal DEPARTMENT OF HEALTH AND Name of Committee: Center for Scientific Advisory Committee Policy, Office of HUMAN SERVICES Review Special Emphasis Panel Member the Director, National Institutes of Conflict: Bioengineering Sciences Health, 6701 Democracy Boulevard, Biocomputational and Modeling 4. National Institutes of Health Date: December 4, 2015. Suite 1000, Bethesda, Maryland 20892 Time: 2:00 p.m. to 3:00 p.m. (Mail code 4875), Telephone (301) 496– National Heart, Lung, and Blood Agenda: To review and evaluate grant 2123, or [email protected]. Institute; Notice of Closed Meeting applications. Dated: November 3, 2015. Pursuant to section 10(d) of the Place: National Institutes of Health, 6701 Jennifer S. Spaeth, Rockledge Drive, Bethesda, MD 20892, Federal Advisory Committee Act, as (Telephone Conference Call). Director, Office of Federal Advisory amended (5 U.S.C. App.), notice is Contact Person: Joseph Thomas Peterson, Committee Policy. hereby given of the following meeting. Ph.D., Scientific Review Officer, Center for [FR Doc. 2015–28592 Filed 11–10–15; 8:45 am] The meeting will be closed to the Scientific Review, National Institutes of BILLING CODE 4140–01–P public in accordance with the

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provisions set forth in sections Date: November 23, 2015. (Catalogue of Federal Domestic Assistance 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 8:00 a.m. to 5:30 p.m. Program Nos. 93.233, National Center for as amended. The grant applications and Agenda: To review and evaluate grant Sleep Disorders Research; 93.837, Heart and the discussions could disclose applications. Vascular Diseases Research; 93.838, Lung Place: Crystal Gateway Marriott, 1700 confidential trade secrets or commercial Diseases Research; 93.839, Blood Diseases Jefferson Davis Highway, Arlington, VA and Resources Research, National Institutes property such as patentable material, 22202. of Health, HHS) and personal information concerning Contact Person: William J Johnson, Ph.D., individuals associated with the grant Scientific Review Officer, Office of Scientific Dated: November 5, 2015. applications, the disclosure of which Review/DERA, National Heart, Lung, and Michelle Trout, would constitute a clearly unwarranted Blood Institute, 6701 Rockledge Drive, Room Program Analyst, Office of Federal Advisory invasion of personal privacy. 7178, Bethesda, MD 20892, 301–435–0725, Committee Policy. [email protected]. [FR Doc. 2015–28656 Filed 11–10–15; 8:45 am] Name of Committee: Heart, Lung, and This notice is being published less than 15 BILLING CODE 4140–01–P Blood Initial Review Group, Heart, Lung, and days prior to the meeting due to the timing Blood Program Project Review Committee. limitations imposed by the review and Date: December 4, 2015. funding cycle. Time: 8:00 a.m. to 2:00 p.m. DEPARTMENT OF HEALTH AND (Catalogue of Federal Domestic Assistance Agenda: To review and evaluate grant HUMAN SERVICES applications. Program Nos. 93.233, National Center for Sleep Disorders Research; 93.837, Heart and Place: Hyatt Regency Bethesda, One National Institutes of Health Bethesda Metro Center, 7400 Wisconsin Vascular Diseases Research; 93.838, Lung Diseases Research; 93.839, Blood Diseases Avenue, Bethesda, MD 20814. National Heart, Lung, and Blood Contact Person: Jeffrey H Hurst, Ph.D., and Resources Research, National Institutes Scientific Review Officer, Office of Scientific of Health, HHS) Institute; Notice of Closed Meeting Review/DERA, National Heart, Lung, and Dated: November 5, 2015. Blood Institute, National Institutes of Health, Pursuant to section 10(d) of the Michelle Trout, 6701 Rockledge Drive, Room 7208, Bethesda, Federal Advisory Committee Act, as MD 20892, 301–435–0303, hurstj@ Program Analyst, Office of Federal Advisory amended (5 U.S.C. App.), notice is nhlbi.nih.gov. Committee Policy. hereby given of the following meeting. [FR Doc. 2015–28652 Filed 11–10–15; 8:45 am] (Catalogue of Federal Domestic Assistance The meeting will be closed to the Program Nos. 93.233, National Center for BILLING CODE 4140–01–P Sleep Disorders Research; 93.837, Heart and public in accordance with the Vascular Diseases Research; 93.838, Lung provisions set forth in section Diseases Research; 93.839, Blood Diseases DEPARTMENT OF HEALTH AND 552b(c)(6), Title 5 U.S.C., as amended. and Resources Research, National Institutes HUMAN SERVICES The grant applications and the of Health, HHS) discussions could disclose confidential Dated: November 5, 2015. National Institutes of Health trade secrets or commercial property Michelle Trout, such as patentable material, and National Heart, Lung, and Blood Program Analyst, Office of Federal Advisory personal information concerning Committee Policy. Institute; Notice of Closed Meeting individuals associated with the grant applications, the disclosure of which [FR Doc. 2015–28660 Filed 11–10–15; 8:45 am] Pursuant to section 10(d) of the would constitute a clearly unwarranted BILLING CODE 4140–01–P Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is invasion of personal privacy. hereby given of the following meeting. Name of Committee: National Heart, Lung, DEPARTMENT OF HEALTH AND The meeting will be closed to the and Blood Institute Special Emphasis Panel HUMAN SERVICES public in accordance with the NHLBI CLTR SEP Review. provisions set forth in sections Date: December 1, 2015. National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 3:00 p.m. to 4:00 p.m. as amended. The contract proposals and Agenda: To review and evaluate grant National Heart, Lung, and Blood applications. the discussions could disclose Institute; Notice of Closed Meeting Place: National Institutes of Health, 6701 confidential trade secrets or commercial Rockledge Drive, Bethesda, MD 20892, Pursuant to section 10(d) of the property such as patentable material, (Telephone Conference Call). Federal Advisory Committee Act, as and personal information concerning Contact Person: Chang Sook Kim, Ph.D., amended (5 U.S.C. App.), notice is individuals associated with the contract Scientific Review Officer, Office of Scientific hereby given of the following meeting. proposals, the disclosure of which Review/DERA, National Heart, Lung, and The meeting will be closed to the would constitute a clearly unwarranted Blood Institute, 6701 Rockledge Drive, Room public in accordance with the invasion of personal privacy. 7188, Bethesda, MD 20892–7924, 301–435– 0287, [email protected]. provisions set forth in sections Name of Committee: National Heart, Lung, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., and Blood Institute Special Emphasis Panel, (Catalogue of Federal Domestic Assistance as amended. The grant applications and NHLBI Vascular Innovations 2. Program Nos. 93.233, National Center for the discussions could disclose Date: December 7–8, 2015. Sleep Disorders Research; 93.837, Heart and confidential trade secrets or commercial Time: 8:00 a.m. to 5:00 p.m. Vascular Diseases Research; 93.838, Lung property such as patentable material, Agenda: To review and evaluate contract Diseases Research; 93.839, Blood Diseases and Resources Research, National Institutes and personal information concerning proposals. of Health, HHS) individuals associated with the grant Place: The William F. Bolger Center, 9600 Newbridge Drive, Potomac, MD 20854. applications, the disclosure of which Dated: November 5, 2015. would constitute a clearly unwarranted Contact Person: Charles Joyce, Ph.D., Michelle Trout, Scientific Review Officer, Office of Scientific Program Analyst, Office of Federal Advisory invasion of personal privacy. Review/DERA, National Heart, Lung, and Committee Policy. Name of Committee: National Heart, Lung, Blood Institute, 6701 Rockledge Drive, Room and Blood Institute Special Emphasis Panel, 7196, Bethesda, MD 20892–7924, 301–435– [FR Doc. 2015–28658 Filed 11–10–15; 8:45 am] Translational Programs in Lung Diseases. 0288, [email protected]. BILLING CODE 4140–01–P

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DEPARTMENT OF HEALTH AND 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Institute of Environmental Health Sciences HUMAN SERVICES as amended. The grant applications and Epidemiology. the discussions could disclose Date: December 3–4, 2015. National Institutes of Health confidential trade secrets or commercial Time: 8:30 a.m. to 5:00 p.m. Agenda: To review and evaluate contract property such as patentable material, proposals. National Heart, Lung, and Blood and personal information concerning Institute; Notice of Closed Meeting Place: Hilton Garden Inn Durham individuals associated with the grant Southpoint 7007 Fayetteville Road, Durham, Pursuant to section 10(d) of the applications, the disclosure of which NC 27713. Federal Advisory Committee Act, as would constitute a clearly unwarranted Contact Person: RoseAnne M. McGee, amended (5 U.S.C. App.), notice is invasion of personal privacy. Associate Scientific Review Officer Scientific Review Branch, Division of Extramural Name of Committee: National Heart, Lung, hereby given of the following meeting. Research and Training Nat. Institute of and Blood Institute Special Emphasis Panel; The meeting will be closed to the Environmental Health Sciences, P.O. Box NHLBI Program Project Special Emphasis public in accordance with the 12233, MD EC–30 Research Triangle Park, Panel. provisions set forth in sections NC 27709 (919) 541–0752 mcgee1@ Date: November 30, 2015. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 8:00 a.m. to 10:30 a.m. niehs.nih.gov. as amended. The grant applications and Agenda: To review and evaluate grant Name of Committee: National Institute of the discussions could disclose applications. Environmental Health Sciences Special confidential trade secrets or commercial Place: National Institutes of Health, 6701 Emphasis Panel Review of Conferences with property such as patentable material, Rockledge Drive, Room 7206, Bethesda, MD an Environmental Health Sciences Focus and personal information concerning 20892, (Telephone Conference Call). Date: December 7, 2015. individuals associated with the grant Contact Person: Shelley S. Sehnert, Ph.D., Time: 1:00 p.m. to 4:00 p.m. Agenda: To review and evaluate grant applications, the disclosure of which Scientific Review Officer, Office of Scientific Review/DERA, National Heart, Lung, and applications. would constitute a clearly unwarranted Blood Institute, 6701 Rockledge Drive, Room Place: NIEHS, Keystone Building Suite invasion of personal privacy. 7206, Bethesda, MD 20892–7924, 301–435– 3118, 530 Davis Drive Research Triangle Name of Committee: Heart, Lung, and 0303, [email protected]. Park, NC 27709 (Telephone Conference Call). Blood Initial Review Group; NHLBI (Catalogue of Federal Domestic Assistance Contact Person: Sally Eckert-Tilotta, Ph.D., Institutional Training Mechanism Review Program Nos. 93.233, National Center for Scientific Review Administrator, Nat. Committee. Sleep Disorders Research; 93.837, Heart and Institute of Environmental Health Sciences Date: December 11, 2015. Vascular Diseases Research; 93.838, Lung Office of Program Operations, Scientific Time: 8:00 a.m. to 5:00 p.m. Diseases Research; 93.839, Blood Diseases Review Branch, P.O. Box 12233 MD EC–30 Agenda: To review and evaluate grant and Resources Research, National Institutes Research Triangle Park, NC 27709 (919) 541– applications. of Health, HHS) 1446 [email protected]. Place: National Institutes of Health, 6701 Dated: November 5, 2015. (Catalogue of Federal Domestic Assistance Rockledge Drive, Bethesda, MD 20892. Program Nos. 93.115, Biometry and Risk Michelle Trout, Contact Person: Charles Joyce, Ph.D., Estimation—Health Risks from Scientific Review Officer, Office of Scientific Program Analyst, Office of Federal Advisory Environmental Exposures; 93.142, NIEHS Review/DERA, National Heart, Lung, and Committee Policy. Hazardous Waste Worker Health and Safety Blood Institute, 6701 Rockledge Drive, Room [FR Doc. 2015–28651 Filed 11–10–15; 8:45 am] Training; 93.143, NIEHS Superfund 7196, Bethesda, MD 20892–7924, 301–435– BILLING CODE 4140–01–P Hazardous Substances—Basic Research and 0288, [email protected]. Education; 93.894, Resources and Manpower (Catalogue of Federal Domestic Assistance Development in the Environmental Health Program Nos. 93.233, National Center for DEPARTMENT OF HEALTH AND Sciences; 93.113, Biological Response to Sleep Disorders Research; 93.837, Heart and HUMAN SERVICES Environmental Health Hazards; 93.114, Vascular Diseases Research; 93.838, Lung Applied Toxicological Research and Testing, Diseases Research; 93.839, Blood Diseases National Institutes of Health National Institutes of Health, HHS) and Resources Research, National Institutes Dated: November 5, 2015. of Health, HHS) National Institute of Environmental Carolyn Baum, Health Sciences; Notice of Closed Dated: November 5, 2015. Program Analyst, Office of Federal Advisory Michelle Trout, Meetings Committee Policy. Program Analyst, Office of Federal Advisory Pursuant to section 10(d) of the [FR Doc. 2015–28654 Filed 11–10–15; 8:45 am] Committee Policy. Federal Advisory Committee Act, as BILLING CODE 4140–01–P [FR Doc. 2015–28657 Filed 11–10–15; 8:45 am] amended (5 U.S.C. App.), notice is BILLING CODE 4140–01–P hereby given of the following meetings. The meetings will be closed to the DEPARTMENT OF HOMELAND public in accordance with the SECURITY DEPARTMENT OF HEALTH AND provisions set forth in sections HUMAN SERVICES 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., [Docket No. DHS–2015–0070] as amended. The contract proposals and Infrastructure Protection Gateway National Institutes of Health the discussions could disclose Facility Surveys National Heart, Lung, and Blood confidential trade secrets or commercial Institute; Notice of Closed Meeting property such as patentable material, AGENCY: National Protection and and personal information concerning Programs Directorate, DHS. Pursuant to section 10(d) of the individuals associated with the contract ACTION: 60-day notice and request for Federal Advisory Committee Act, as proposals, the disclosure of which comments; Existing collection in use amended (5 U.S.C. App.), notice is would constitute a clearly unwarranted without an OMB Control Number: hereby given of the following meeting. invasion of personal privacy. 1670—NEW. The meeting will be closed to the Name of Committee: National Institute of public in accordance with the Environmental Health Sciences Special SUMMARY: The Department of Homeland provisions set forth in sections Emphasis Panel Support for the National Security (DHS), National Protection and

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Programs Directorate (NPPD), Office of 1. Evaluate whether the proposed DEPARTMENT OF HOMELAND Infrastructure Protection (IP), collection of information is necessary SECURITY Infrastructure Information Collection for the proper performance of the Division (IICD), Infrastructure functions of the agency, including U.S. Citizenship and Immigration Protection Gateway Program will submit whether the information will have Services the following Information Collection practical utility; [OMB Control Number 1615–NEW] Request to the Office of Management 2. Evaluate the accuracy of the and Budget (OMB) for review and Agency Information Collection agency’s estimate of the burden of the clearance in accordance with the Activities: AABB Accredited proposed collection of information, Paperwork Reduction Act of 1995 (Pub. Laboratory Testing; Rapid DNA including the validity of the L. 104–13, 44 U.S.C. Chapter 35). Prototype Accelerated Nuclear DNA DATES: Comments are encouraged and methodology and assumptions used; Equipment (ANDE) by NetBio; Rapid will be accepted until January 11, 2016. 3. Enhance the quality, utility, and DNA Prototype RapidHIT200 by This process is conducted in accordance clarity of the information to be IntegenX; Form G–1294, DNA with 5 CFR 1320.1. collected; and Collection Consent Form (Laboratory ADDRESSES: Written comments and 4. Minimize the burden of the Test) and Form G–1295, DNA questions about this Information collection of information on those who Collection Consent Form (Rapid Test); Collection Request should be forwarded are to respond, including through the New Collection to DHS/NPPD/IP/IICD, 245 Murray Lane use of appropriate automated, AGENCY: U.S. Citizenship and SW., Mail Stop 0602, Arlington, VA electronic, mechanical, or other 20598–0602. Emailed requests should Immigration Services, Department of technological collection techniques or go to Kimberly Sass, Kimberly.Sass@ Homeland Security. other forms of information technology, hq.dhs.gov. Written comments should ACTION: 30-Day notice. reach the contact person listed no later e.g., permitting electronic submissions SUMMARY: The Department of Homeland than January 11, 2016. Comments must of responses. Security (DHS), U.S. Citizenship and be identified by ‘‘DHS–2015–0070’’and Analysis Immigration Services (USCIS) will be may be submitted by one of the submitting the following information following methods: Agency: Department of Homeland • Federal eRulemaking Portal: http:// Security, National Protection and collection request to the Office of Management and Budget (OMB) for www.regulations.gov. Programs Directorate, Office of review and clearance in accordance • Email: Include the docket number Infrastructure Protection, Infrastructure with the Paperwork Reduction Act of in the subject line of the message. Information Collection Division, Instructions: All submissions received 1995. The information collection notice Infrastructure Protection Gateway was previously published in the Federal must include the words ‘‘Department of Program. Homeland Security’’ and the docket Register on July 8, 2014, at 79 FR 38558, number for this action. Comments Title: Infrastructure Protection (IP) allowing for a 60-day public comment received will be posted without Gateway Facility Surveys. period. USCIS did not receive any alteration at http://www.regulations.gov, OMB Number: 1670—NEW. comments in connection with the 60- day notice. including any personal information Frequency: Annually, quarterly, and DATES: The purpose of this notice is to provided. monthly. SUPPLEMENTARY INFORMATION: allow an additional 30 days for public Under the Affected Public: Chief Information direction of Homeland Security comments. Comments are encouraged Officers, Chief Information Security Presidential Directive-7 (HSPD–7) and will be accepted until December 14, Officers, Chief Technology Officers, and (2003), DHS/NPPD/IP has developed the 2015. This process is conducted in Federal and State, Local, Tribal and IP Gateway—a centrally managed accordance with 5 CFR 1320.10. repository of infrastructure capabilities Territorial communities involved in the ADDRESSES: Written comments and/or allowing the Critical Infrastructure (CI) protection of CI. suggestions regarding the item(s) community to work in conjunction with Number of Respondents: 2,915 contained in this notice, especially each other toward the same goals. This respondents (estimate). regarding the estimated public burden and associated response time, must be collection involves the standardized Estimated Time per Respondent: 7.5 directed to the OMB USCIS Desk Officer recording, via a series of web-based hours. forms, of a significant amount of via email at oira_submission@ information assembled during voluntary Total Burden Hours: 21,863 annual omb.eop.gov. Comments may also be physical facility review surveys. The burden hours. submitted via fax at (202) 395–5806 survey is used to analyze risks and Total Burden Cost (capital/startup): (This is not a toll-free number). All vulnerabilities to a facility and how they $0. submissions received must include the agency name and the OMB Control can mitigate risks and vulnerabilities. Total Recordkeeping Burden: $0. Questions focus on whether specific sets Number 1615–NEW. of controls and operational best Total Burden Cost (operating/ You may wish to consider limiting the practices are planned, defined, maintaining): $1,168,795.98 (estimate). amount of personal information that you implemented, measured, managed, and Dated: October 30, 2015. provide in any voluntary submission you make. For additional information assessed on a regular basis across all Scott Libby, aspects of facility use and operation. please read the Privacy Act notice that Deputy Chief Information Officer, National Surveys are usually completed by is available via the link in the footer of Protection and Programs Directorate, http://www.regulations.gov. government personnel, but can be Department of Homeland Security. performed by individual site owners as FOR FURTHER INFORMATION CONTACT: [FR Doc. 2015–28679 Filed 11–10–15; 8:45 am] well. OMB is particularly interested in USCIS, Office of Policy and Strategy, comments that: BILLING CODE 9110–9P–P Regulatory Coordination Division, Laura

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Dawkins, Chief, 20 Massachusetts abstract: Primary: Individuals or DEPARTMENT OF THE INTERIOR Avenue NW., Washington, DC 20529– households. Overseas applicants for 2140, Telephone number (202) 272– refugee status filing through the USCIS Fish and Wildlife Service 8377 (This is not a toll-free number. Form I–590 (OMB Control Number [FWS–R2–ES–2015–N194; Comments are not accepted via 1615–0068) that have a spouse and/or FXES11130200000–167–FF02ENEH00] telephone message). Please note contact child(ren) must meet all requirements of information provided here is solely for Immigration and Nationality Act Draft Screening Form and Draft Low- questions regarding this notice. It is not § 207(c)(2) and have the necessary Effect Habitat Conservation Plan for for individual case status inquiries. burden of proof to establish the the San Rafael Ranch; Santa Cruz Applicants seeking information about relationship(s). In the case of a parent- County, AZ the status of their individual cases can child relationship, there is often a check Case Status Online, available at AGENCY: Fish and Wildlife Service, degree of difficulty in establishing this Interior. the USCIS Web site at http:// for refugee populations that often lack ACTION: Notice of availability; request www.uscis.gov, or call the USCIS reliable documentation. USCIS is for comments. National Customer Service Center at seeking to allow I–590 applicants to (800) 375–5283; TTY (800) 767–1833. provide DNA testing results through an SUMMARY: We, the U.S. Fish and SUPPLEMENTARY INFORMATION: AABB accredited laboratory, and in Wildlife Service (Service), make Comments coordination with the USCIS overseas available the draft National You may access the information office, to provide effective and credible Environmental Policy Act (NEPA) collection instrument with instructions, evidence of this parent-child screening form and draft San Rafael or additional information by visiting the relationship. USCIS is also seeking to Ranch low-effect habitat conservation Federal eRulemaking Portal site at: conduct simultaneous Rapid DNA plan (dHCP). The San Rafael Cattle http://www.regulations.gov and enter testing as a pilot to make a Company (applicant) has applied to the USCIS–2014 -0002 in the search box. determination if the Rapid DNA Service for an incidental take permit Written comments and suggestions from machines provide a valid alternative to (ITP, TE12133A–0) under the the public and affected agencies should traditional DNA testing. USCIS will be Endangered Species Act of 1973, as address one or more of the following collecting samples for traditional DNA amended (Act). If approved, the ITP four points: testing through an AABB accredited would be in force for a period of 30 (1) Evaluate whether the proposed laboratory in conjunction with the years, and would authorize incidental collection of information is necessary Rapid DNA pilot to test the validity of take of three species currently listed for the proper performance of the the results obtained during the pilot. under the Act, and one species that may functions of the agency, including The collection of DNA, regardless of become listed under the Act. The whether the information will have process employed, is strictly voluntary proposed incidental take would occur as practical utility; and refusal to provide a sample does not a result of specified actions conducted (2) Evaluate the accuracy of the adversely impact an applicant’s I–590 under the authority of the San Rafael agency’s estimate of the burden of the application. Cattle Company. proposed collection of information, This is the second notice regarding including the validity of the (5) An estimate of the total number of the dHCP. An earlier notice of methodology and assumptions used; respondents and the amount of time Availability was published on July 22, (3) Enhance the quality, utility, and estimated for an average respondent to 2010 (75 FR 35504). After that notice clarity of the information to be respond: 60 respondents for the was published, processing of the permit collected; and Applicant Initiated AABB accredited lab application was suspended by mutual (4) Minimize the burden of the DNA Testing with an estimate hour agreement of the San Rafael Cattle collection of information on those who burden of 6 hours per response. 250 Company and the Service. are to respond, including through the respondents for the standard DNA DATES: To ensure consideration, written use of appropriate automated, process (form G–1294) with an estimate comments must be received or electronic, mechanical, or other of .217 hour burden per response. 250 postmarked on or before December 14, technological collection techniques or respondents for the Rapid DNA process 2015. Any comments that we receive other forms of information technology, (Form G–1295) with an estimate of .217 after the closing date may not be e.g., permitting electronic submission of hour burden per response. considered. responses. (6) An estimate of the total public ADDRESSES: Availability of Documents: Overview of This Information burden (in hours) associated with the The draft NEPA screening form and Collection collection: The total estimated hour draft San Rafael Ranch low-effect (1) Type of Information Collection burden per response is 470 hours. habitat conservation plan (dHCP) are Request: New Collection. (7) An estimate of the total public available by the following methods: (2) Title of the Form/Collection: burden (in cost) associated with the • Internet: Documents are available AABB accredited laboratory testing; collection: The total estimated cost to on the Internet at the Service’s Web site, Rapid DNA prototype Accelerated the public is $14,700. at http://www.fws.gov/southwest/es/ Nuclear DNA Equipment (ANDE) by arizona/. Dated: November 5, 2015. NetBio; Rapid DNA prototype • U.S. Mail: A limited number of CD– RapidHIT200 by IntegenX. Laura Dawkins, ROM and printed copies of both (3) Agency form number, if any, and Chief, Regulatory Coordination Division, documents are available, by request, the applicable component of the DHS Office of Policy and Strategy, U.S. Citizenship from Mr. Steve Spangle, Field sponsoring the collection: G–1294, G– and Immigration Services, Department of Supervisor, Arizona Ecological Services 1295; USCIS. Homeland Security. Field Office, 2321 West Royal Palm (4) Affected public who will be asked [FR Doc. 2015–28701 Filed 11–10–15; 8:45 am] Road, Suite 103, Phoenix, AZ 85021– or required to respond, as well as a brief BILLING CODE 9111–97–P 4951; telephone: 602–242–0210; fax:

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602–242–2513. Please note that your well as actual incidental take of covered have improved range and habitat request is in reference to the San Rafael animals. Plant species may be included conditions on private lands within the Ranch dHCP (TE–12133A–0). on an ITP in recognition of the San Rafael Valley of Santa Cruz County, • In-Person: Copies of both conservation benefits provided to them Arizona. These improved habitat documents are also available for public under an HCP. conditions provide opportunities for inspection and review at the following If approved, the ITP would authorize conservation actions that may enhance locations, by written request and incidental take of five listed species, the status and distribution of covered appointment only, 8 a.m. to 4:30 p.m.: including Sonoran tiger salamander species on the San Rafael Ranch. The • U.S. Fish and Wildlife Service, 500 (Ambystoma mavortium [=tigrinum] applicant would like to continue ranch Gold Avenue SW., Room 6034, stebbinsi), Gila chub (Gila intermedia), management activities while working northern Mexican gartersnake Albuquerque, NM 87102. with agencies to conduct conservation • (Thamnophis eques megalops), Canelo U.S. Fish and Wildlife Service, actions on the San Rafael Ranch, such Arizona Ecological Services Field Hills ladies’-tresses (Spiranthes delitescens), and Huachuca water umbel as introduction of covered species or Office, 2321 West Royal Palm Road, other species not covered, and removal Suite 103, Phoenix, AZ 85021–4951; (Lilaeopsis schaffneriana ssp. recurva), of aquatic invasive species. The covered telephone: 602–242–0210; fax: 602– as well as a species that may become ranch management activities would 242–2513. listed under the Act in the future, and consist of watering cattle in stock tanks The ITP application is available by Huachuca springsnail (Pyrgulopsis mail from the Regional Director, U.S. thompsoni). and cattle grazing all habitats, including Fish and Wildlife Service, P.O. Box Also occurring on the Ranch is the herding cattle within and between 1306, Room 6034, Albuquerque, NM endangered Gila topminnow pastures; maintenance of stock ponds, 87103, Attn: Environmental Review (Poeciliopsis o. occidentalis) and wells, waterlines, fences, roads, and Division. potentially, the threatened Chiricahua utility lines supporting these facilities; Comment submission: We request that leopard frog (Lithobates chiricahuensis). and brush and invasive plant you send comments only by one of the Both species are covered under safe management to reduce shrub invasion of methods described below. Comments harbor agreements held by the Arizona upland grasslands. All of these activities submitted by any other means may not Game and Fish Department. have short-term impacts on species and be considered. Please note that your The proposed incidental take would their habitats, and incidental take of request is in reference to the San Rafael occur as a result of ranch management some covered species may occur. Ranch dHCP (TE–12133A–0). activities on 18,440 acres of the San However, a long-term benefit is • Electronically: Send comments to Rafael Ranch and 3,560 acres of grazing anticipated for the watershed and [email protected]. preference on the Arizona State Parks, habitats of the covered species. In • By hard copy: Submit comments by San Rafael State Natural Area addition, the applicant proposes actions (consistent with lease terms) in Santa U.S. mail or hand-delivery to: U.S. Fish to minimize the impacts of the activities Cruz County, Arizona. The applicant and Wildlife Service, Arizona Ecological and assist in recovery of covered has completed a dHCP as part of the Services Field Office, 2321 West Royal species. These actions are also proposed application package, as required by the Palm Road, Suite 103, Phoenix, AZ to be covered by the associated section 85021–4951; telephone: 602–242–0210. Act. A categorical exclusion for an HCP is 10(a)(1)(B) permit. FOR FURTHER INFORMATION CONTACT: based on the following three criteria: (1) The biological goal of the San Rafael Doug Duncan, Arizona Ecological Implementation of the proposed plan Ranch HCP is to provide long-term Services Field Office—Tucson Sub- would result in minor or negligible protection for multiple species of Office, 201 N. Bonita Avenue, Suite 141, effects on federally-listed, proposed, concern and key natural communities Tucson, AZ 85745; telephone (520/670– and candidate species and their through maintenance or improvement of 6150; extension 236); or by email habitats; (2) implementation of the the habitat conditions and ecosystem ([email protected]). proposed HCP would result in minor or functions necessary for their survival, SUPPLEMENTARY INFORMATION: We negligible effects on other and to ensure that any incidental take of announce that: environmental values or resources; and listed species will not appreciably (1) We have gathered the information (3) impacts of the HCP, considered reduce the likelihood of the survival necessary to determine the impacts to together with the impacts of other past, and recovery of those species in the the human environment under NEPA present, and reasonably foreseeable wild. related to the potential issuance of an similarly situated projects, would not ITP to the applicant; and result, over time, in cumulative effects Public Availability of Comments (2) The applicant has developed a to environmental values or resources Written comments we receive become dHCP as part of the application for an that would be considered significant. part of the public record associated with ITP, which describes the measures the Based upon the preliminary this action. Before including your applicant has agreed to take to minimize determination made in our draft NEPA and mitigate the effects of incidental screening document, we believe this address, phone number, email address, take of covered species to the maximum action qualifies as a categorical or other personal identifying extent practicable, pursuant to section exclusion. We will consider public information in your comment, you 10(a)(1)(B) of the Act. comments when making the final should be aware that the entire Take of listed plant species is not determination on whether to prepare an comment—including your personal defined in the Act, although the Act additional NEPA document on the identifying information—may be made does identify several prohibitions. proposed action. publicly available at any time. While However, because covered species in you can ask us in your comment to the dHCP include both plants and Background withhold your personal identifying animals, in the following discussion we Since purchasing the San Rafael information from public review, we use the term ‘‘incidental take’’ when Ranch in 2000, the applicant has been cannot guarantee that we will be able to discussing impacts to covered plants, as implementing grazing practices that do so.

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Authority 30. Please register by contacting Lucia longer authorized by state law to handle We provide this notice under section Foulkes at the Federal Geographic Data controlled substances.’’ Exceptions at 1. 10(c) of the Act (16 U.S.C. 1531 et seq.) Committee (703–648–4142, lfoulkes@ Noting that the language of section and its implementing regulations (50 usgs.gov). Comments may also be 824(a)(3) authorizes the suspension or CFR 17.22) and NEPA (42 U.S.C. 4371 submitted to the NGAC in writing. revocation of a registration where a et seq.) and its implementing DATES: The meeting will be held on registrant ‘‘is no longer authorized by regulations (40 CFR 1506.6). December 4, 2015, from 12:30 p.m. to State law to engage in the 3:30 p.m. EST. manufacturing, distribution or Dated: November 5, 2015. FOR FURTHER INFORMATION CONTACT: dispensing of controlled substances,’’ Joy E. Nicholopoulos, John Mahoney, U.S. Geological Survey (206– Respondent argues that the ALJ lumped Acting Regional Director, Southwest Region, 220–4621). together ‘‘[t]he words ‘manufacturing, U.S. Fish and Wildlife Service. distribution or dispensing’’’ and that SUPPLEMENTARY INFORMATION: [FR Doc. 2015–28794 Filed 11–10–15; 8:45 am] Meetings this ‘‘violates the strict requirement for of the National Geospatial Advisory BILLING CODE 4333–15–P strict statutory construction.’’ Id. Committee are open to the public. Apparently, because the ALJ used the Additional information about the NGAC word ‘‘handle’’ rather than ‘‘dispense’’ DEPARTMENT OF THE INTERIOR and the meeting are available at to describe the authority Respondent no www.fgdc.gov/ngac. longer holds by virtue of the suspension Geological Survey Kenneth Shaffer, of her medical license, Respondent [GX16EE000101100] Deputy Executive Director, Federal believes that the Agency lacks authority Geographic Data Committee. to revoke her registration. Announcement of National Geospatial [FR Doc. 2015–28730 Filed 11–10–15; 8:45 am] It is true that the Controlled Advisory Committee Meeting Substances Act does not use the word BILLING CODE 4338–11–P ‘‘handle’’ in describing the activities AGENCY: U.S. Geological Survey, that various categories of registrants are Department of the Interior. authorized to engage in pursuant to ACTION: Notice of meeting. DEPARTMENT OF JUSTICE their registrations. Rather, the term is part of the Agency’s vernacular. SUMMARY: Drug Enforcement Administration The National Geospatial Notwithstanding the language used by Advisory Committee (NGAC) will meet [Docket No. 15–21; the ALJ, the Agency possesses authority on December 4, 2015, from 12:30 p.m. to revoke Respondent’s registration to 3:30 p.m. EST. The meeting will be Christina B. Paylan, M.D.; Decision and because the record establishes that she held via web conference and Order lacks authority to dispense controlled teleconference. substances in Florida, the State in The NGAC, which is composed of On July 1, 2015, Administrative Law Judge Christopher B. McNeil issued the which she is registered with DEA. representatives from governmental, Specifically, the evidence shows that on private sector, non-profit, and academic attached Recommended Decision. Therein, the ALJ found it undisputed October 28, 2014, the Florida organizations, has been established to Department of Health ordered the advise the Chair of the Federal that Respondent’s medical license has been suspended by the Florida emergency suspension of Respondent’s Geographic Data Committee on license ‘‘to practice as a medical doctor’’ management of Federal geospatial Department of Health, and that therefore, she ‘‘is not authorized to after she was convicted in state court of programs, the development of the two felony offenses, including, inter handle controlled substances in the National Spatial Data Infrastructure, and alia, ‘‘obtaining a controlled substance State of Florida.’’ R.D. 6. Because the implementation of Office of by fraud.’’ In re Emergency Suspension Respondent is no longer a ‘‘practitioner’’ Management and Budget (OMB) of the License of Christina B. Paylan, within the meaning of the Controlled Circular A–16. Topics to be addressed at M.D., 1–2 (Fla. Dept. of Health Oct. 28, Substances Act, the ALJ granted the the meeting include: 2014) (No. 2014–12284). Respondent Government’s Motion for Summary —FGDC Update therefore lacks authority under Florida Disposition and recommended that her —NGAC Subcommittee Reports law to dispense controlled substances registration be revoked 1 and that any —Review of NGAC Papers within the meaning of the CSA. See Fla. —Planning for 2016 NGAC Activities pending application to renew or modify Stat. § 458.305(3) (defining the ‘‘practice Members of the public who wish to her registration be denied. Id. of medicine’’ as ‘‘the diagnosis, attend the meeting must register in Respondent filed Exceptions to the treatment, operation, or prescription for advance. Please register by contacting Decision and the Government filed a any human disease, pain, injury, Lucia Foulkes at the Federal Geographic Response to Respondent’s Exceptions. deformity, or other physical or mental Data Committee (703–648–4142, Thereafter, the record was forwarded to condition’’); id. § 458.305(4) (defining [email protected]). Meeting me for final agency action. ‘‘physician’’ as ‘‘a person who is registrations are due by November 30, Having considered the record in its licensed to practice medicine in this 2015. Meeting information (Web entirety, I have decided to adopt the state’’); § 456.065(2)(d)(1) (prohibiting conference and teleconference ALJ’s factual finding, his conclusions of the unlicensed practice of ‘‘a health care instructions) will be provided to law, and recommended order. A profession without an active, valid . . . registrants prior to the meeting. While discussion of Respondent’s Exceptions license to practice that professional’’ the meeting will be open to the public, follows. which ‘‘includes practicing on a attendance may be limited due to web Respondent’s first exception is based suspended . . . license’’). conference and teleconference capacity. on the ALJ’s finding that she is ‘‘no Respondent further argues that The meeting will include an because she ‘‘is not a dispensing 1 According to the registration records of this opportunity for public comment. Agency, of which I take official notice, see 5 U.S.C. practitioner’’ as defined by Florida law, Attendees wishing to provide public 556(e), Respondent’s registration does not expire she is outside of the scope of section comment should register by November until March 31, 2016. 824(a)(3). Exceptions at 5. Respondent

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explains that under Florida law and n.8 (citing cases). Rather, her challenges ORDER GRANTING THE regulation, a dispensing practitioner ‘‘is to either her conviction or the GOVERNMENT’S MOTION FOR one who acts as a pharmacy and sells suspension order must be litigated in SUMMARY DISPOSITION AND medications . . . to patients’’ and that the forums provided by the State. FINDINGS OF FACT, CONCLUSIONS she ‘‘is not registered as a dispensing Tiwari, 76 FR at 71606. Moreover, the OF LAW, AND RECOMMENDED practitioner . . . because she does not only evidence that is relevant in DECISION OF THE ADMINISTRATIVE sell medications to patients out of her determining whether Respondent’s LAW JUDGE office.’’ Id. registration should be revoked is Christopher B. McNeil, Be that as it may, the CSA defines whether she ‘‘is no longer authorized by Administrative Law Judge. On April 29, ‘‘[t]he term ‘dispense’ [to] mean[] to State law to engage in the . . . 2015, the Deputy Assistant deliver a controlled substance to an Administrator of the Drug Enforcement ultimate user . . . by, or pursuant to the dispensing of controlled substances.’’ 21 Administration issued an Order to Show lawful order of, a practitioner, including U.S.C. 824(a)(3). Because it undisputed the prescribing and administering of a that Respondent is no longer authorized Cause as to why the DEA should not controlled substance.’’ 21 U.S.C. 802(10) under Florida law to dispense revoke DEA Certificate of Registration (emphasis added). Because the term controlled substances, she no longer (COR) Number BP7179496 issued to ‘‘dispense’’ is not limited to direct meets the statutory definition of a Christina Paylan, M.D., the Respondent dispensing but includes prescribing and practitioner. See id. § 802(21) (‘‘The in this matter. The Order seeks to revoke administering, section 824(a)(3) term ‘practitioner’ means a physician Respondent’s registration pursuant to 21 authorizes the revocation of her . . . or other person licensed, registered, U.S.C. §§ 824(a)(3) and 823(f)(4), and to registration based on her lack of or otherwise permitted, by the United deny any pending applications for authority under Florida law to practice States or the jurisdiction in which [s]he renewal or modification of such registration, and deny any applications medicine.2 practices . . . to distribute, dispense, for any new DEA registrations pursuant Respondent also argues that revoking . . . [or] administer . . . a controlled to 21 U.S.C. § 823(f). As grounds for her registration would be arbitrary and substances in the course of professional capricious because the ALJ ignored revocation, the Deputy Assistant practice . . . .’’); id. § 823(f) (‘‘The Administrator alleges that Respondent relevant evidence. Exceptions at 4. Attorney General shall register According to Respondent, the relevant is without authority to handle practitioners . . . to dispense . . . evidence is that in her criminal case controlled substances in Florida, the controlled substances .... if the (which was the basis of the State state in which Dr. Paylan is registered Board’s action), she ‘‘was not tried as a applicant is authorized to dispense . . . with the DEA. As further grounds for doctor, but rather as a layperson’’ and controlled substances under the laws of revocation, the Deputy Assistant that ‘‘[t]he only fraud’’ proved by the the State in which [s]he practices’’). Administrator alleges that Dr. Paylan State was that she ‘‘did not receive Accordingly, I adopt the ALJ’s has been convicted of felonies related to permission from CM in order to write a recommended order and will revoke controlled substances and that her prescription to order drugs for an Respondent’s registration and deny any continued registration is inconsistent upcoming surgical procedure.’’ Id.; see pending applications to renew or with the public interest. also id. at 5–6 (arguing that state modify her registration. 3 On May 8, 2015, the DEA’s Office of prosecutor committed ‘‘prosecutorial Administrative Law Judges received a Order misconduct’’ in her criminal trial when notice that Dr. Paylan was served with he/she ‘‘argued that a doctor is not a Pursuant to the authority vested in me the Order to Show Cause on May 6, doctor’’). by 21 U.S.C. 824(a)(3) and 823(f), as 2015. On May 28, 2015, the DEA’s Office of The ALJ properly rejected this well as 28 CFR 0.100(b), I order that argument as it is a collateral attack on Administrative Law Judges received DEA Certificate of Registration her state court conviction and the State Respondent’s written request for a BP7179496, issued to Christina Paylan, Board’s suspension order which cannot hearing, dated May 28, 2015. be litigated in a proceeding brought M.D., be, and it hereby is, revoked. I Thereafter, on June 1, 2015, this under section 304 of the CSA. See further order that any pending Office issued an Order for Briefing on Kamal Tiwari, 76 FR 71604, 71606 application of Christina Paylan, M.D., to Allegations Concerning Respondent’s (2011) (citing cases); see also R.D. at 4 renew or modify DEA Certificate of Lack of State Authority. In the Order, I Registration BP7179496, be, and it required the Government to submit 2 Respondent also disputes whether she ‘‘is no hereby is, denied. This order is effective evidence and arguments to support the longer authorized by State law to engage in the . . . December 14, 2015. allegation that Respondent lacks state dispensing of controlled substances.’’ Exceptions at authority to handle controlled 2. Respondent argues that ‘‘[t]here is no language Dated: November 2, 2015. substances and, if appropriate, file a in the Emergency Suspension Order issued by the Chuck Rosenberg, Florida Board of Medicine or any other evidence motion for summary disposition no later . . . that [she] is ‘no longer authorized by state law Acting Administrator. than 2:00 p.m. Eastern Daylight Time to handle controlled substances.’ ’’ Id. She further (EDT) on June 15, 2015. Also in my June argues that she still has her medical license. Id. at Brian Bayly, Esq., for the Government. 1, 2015 Order, I allowed the Respondent 2–3. Christina M. Paylan, pro se, for the While Respondent may still hold a medical to file a response to the Government’s license, it is undisputed that the Board of Medicine Respondent. motion for summary disposition no later has suspended it. Accordingly, she is no longer than 2:00 p.m. EDT on June 29, 2015. authorized to practice medicine and prescribe 3 Respondent also argues that I should issue a writ On June 3, 2015, the Government controlled substances. While Respondent further of error coram nobis to correct the error committed asserts that the Board has yet to provide her with timely filed its Motion for Summary by the state court when it allowed the prosecutor ‘‘a full hearing,’’ id. at 3, the ALJ properly rejected Disposition, along with its Brief in to present her to the jury ‘‘as a layperson, [and] not this contention. See R.D. at n.13 (citing cases Support of the Order to Show Cause holding that revocation is warranted even where a as a doctor.’’ Exceptions at 7. This, however, is just practitioner’s state authority has been summarily another variation of her collateral attack on the state Allegation That Respondent Lacks State suspended and the State has yet to provide a court proceeding, and in any event, Congress has Authority to Handle Controlled hearing). not granted such authority to DEA. Substances. In its filings, the

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Government averred that on October 28, § 823(f), only a ‘‘practitioner’’ may Florida Department of Health Order of 2014, the State of Florida Department of receive a DEA registration. Under 21 Emergency Suspension. Similarly, a Health issued an Order of Emergency U.S.C. § 802(21), a ‘‘practitioner’’ must DEA agent’s purported inaction in Suspension of License (Suspension be ‘‘licensed, registered, or otherwise pursuing Dr. Paylan for an alleged crime Order) of Dr. Paylan’s medical license.4 permitted, by the United States or the does not carry any preclusive weight Based on this event, the Government jurisdiction in which he practices or because it is not an issue that has been argues that under applicable DEA does research, to distribute [or] dispense litigated. Therefore, collateral estoppel precedent Respondent’s DEA COR . . . controlled substance[s.]’’ Given this is inapplicable to Dr. Paylan’s should be revoked. statutory language, the DEA aforementioned claim. Thus, Dr. On June 29, 2015, the Respondent Administrator does not have the Paylan’s collateral estoppel argument timely filed her response, entitled authority under the Controlled fails. Affidavit of Christina Paylan, MD in Substances Act to maintain a As for her res judicata claim, Dr. Support of Her Response to the practitioner’s registration if that Paylan argues that the DEA had Government’s Summary Disposition practitioner is not authorized to knowledge of, but did not take action (Response). Dr. Paylan attached to her dispense controlled substances.7 on, the event that Dr. Paylan was Response a 187-page brief (Brief) that In her Response and Brief, Dr. Paylan convicted of in State court.12 Dr. Paylan included exhibits in support of her counters the Government’s assertions represents that the Florida State position. In her Brief, Dr. Paylan relies arguing that collateral estoppel/res Administrative Law Judge assigned to upon three legal arguments. First, Dr. judicata should apply to this the DOH v. Paylan Case No:15–0429 Paylan argues that collateral estoppel/ proceeding, and requests that I ‘‘fashion issued an initial order recognizing the res judicata is applicable to this an order that is something other than presence of res judicata as an issue proceeding. Next, Dr. Paylan avers that revocation, and more like a temporary applicable to the administrative she received ineffective assistance from suspension and/or abeyance until these proceeding.13 But in this proceeding, Dr. counsel in her criminal trial which state issues of res judicata are fully Paylan herself notes ‘‘the absence of a formed the basis of the State Medical addressed before the ALJ in Tallahassee, formal proceeding by the DEA such as Board’s emergency order suspending Dr. and/or until a decision of the State convening of this forum may preclude Paylan’s license to practice medicine in Appellate Court is rendered reversing the argument of res judicata.’’ 14 the State of Florida. Last, Dr. Paylan the conviction.’’ 8 Dr. Paylan alleges that In this instance, the DEA is not states that due to prosecutorial the Board’s Order of Emergency relitigating a claim that was previously misconduct, it was not her who was Suspension determination was based on heard, and it is not bringing a claim that convicted in her criminal trial. Dr. Paylan’s conviction in a State could have been litigated in a prior DEA Notably, nowhere in her brief does Dr. criminal trial for the same conduct she proceeding in accordance with the Paylan claim that she has state authority was previously exonerated of before the doctrine of res judicata.15 Rather, the to handle controlled substances—the Board.9 Dr. Paylan thus avers that res event that served as the catalyst for the threshold issue in this matter. To the judicata should have applied in the Government’s Order to Show Cause in contrary, Dr. Paylan’s arguments center Board’s emergency suspension orders. this proceeding was the State of Florida on the alleged factual background of her Dr. Paylan also argues that ‘‘if the local Department of Health Order of criminal conviction, and fail to DEA agent found Dr. Paylan to have Emergency Suspension of License. But contradict the basis upon which the engaged in no wrongdoing at the time of the present proceeding has been Government seeks summary disposition the transaction, then Dr. Paylan, is at a convened for the purpose of in this proceeding. Respondent has minimum, entitled to a collateral determining whether the Administrator therefore failed to rebut the substantial estoppel argument now.’’ 10 should revoke the Respondent’s DEA issue raised by the Government. This Agency has held ‘‘that a Certificate of Registration pursuant to 21 The Government asserts that registrant cannot collaterally attack the U.S.C. 824(a)(3) and 823(f)(4), and Respondent’s DEA Certificate of results of a state criminal or whether the Administrator should deny Registration must be revoked because administrative proceeding in a any pending applications for renewal or Respondent does not have a medical proceeding under section 304 of the modification of such registration, and license issued by the state in which she CSA.’’ 11 Thus, in this proceeding, Dr. any applications for new DEA practices.5 This assertion is significant Paylan is precluded from attacking the registrations pursuant to 21 U.S.C. because DEA precedent holds that a results of both the Circuit Court of the 823(f). Absent the existence in this practitioner’s DEA Certificate of Thirteenth Judicial Circuit in and for present proceeding of a claim that has Registration for controlled substances Hillsborough County, Florida, and the been previously litigated, or a claim that must be summarily revoked if the could have been litigated in a prior applicant is not authorized to handle Abraham A. Chaplan, M.D., 57 FR 55280 (1992); proceeding, the doctrine of res judicata See also Bio Diagnosis Int'l, 78 FR 39327, 39331 controlled substances in the state in (2013) (distinguishing distributor applicants from is inapplicable here. which she maintains her DEA other ‘‘practitioners’’ in the context of summary Dr. Paylan’s second and third registration.6 Pursuant to 21 U.S.C. disposition analysis). arguments, that she experienced 7 See Abraham A. Chaplan, M.D., 57 FR 55,280, ineffective assistance of counsel in her 4 Gov’t Mot. For Summary Disp. at 2 & 55,280 (1992), and cases cited therein. In Chaplan, state criminal proceeding, and that her DEA Administrator Robert C. Bonner adopts the Attachment 1 (State of Florida Department of conviction was purportedly a person Health Order of Emergency Suspension of License). ALJ’s opinion that ‘‘the DEA lacks statutory power 5 Id. to register a practitioner unless the practitioner who was presented to the jury as a non- holds state authority to handle controlled 6 See 21 U.S.C. 802(21), 823(f), 824(a)(3); see also doctor, i.e. not Dr. Paylan, fail because substances.’’ Id. House of Medicine, 79 FR 4959, 4961 (2014); these arguments do not relate to the 8 Deanwood Pharmacy, 68 FR 41662 (2003); Wayne Resp. Br. at 12. issue of whether Dr. Paylan currently D. Longmore, M.D., 77 FR 67,669 (2012); Alan H. 9 Resp. Br. at 7–8. Olefsky, M.D., 72 FR 42,127 (2007); Layfe Robert 10 Resp. Br. at 10. 12 Anthony, M.D., 67 FR 15,811 (2002); George 11 Sunil Bhasin, M.D., 72 FR 5,082, 5,083 (2007); Resp. Br. at 10. Thomas, PA±C, 64 FR 15811 (1999); Shahid Musud see also Shahid Musud Siddiqui, 61 FR 14818, 13 Resp. Br. at 8. Siddiqui, M.D., 61 Fed. Reg 14818–02 (1996); 14,818–19 (1996); and Robert A. Leslie, 60 FR 14 Resp. Br. at 9. Michael D. Lawton, M.D., 59 FR 17792 (1994); 14,004, 14,005 (1995). 15 OTSC at 1.

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has authority to handle controlled further find that the Respondent has additional tax credit by Section 3303 of substances in the State of Florida. For failed to dispute this assertion. the IRC. Both certifications list all 53 this reason, Dr. Paylan’s second and Accordingly, I GRANT the jurisdictions. third claims fall outside the scope of Government’s Motion for Summary this proceeding as well. Disposition. Sincerely, Last, while I am mindful of Dr. Upon this finding, I ORDER that this THOMAS E. PEREZ Paylan’s request for a temporary case be forwarded to the Administrator suspension or abeyance of these for final disposition and I recommended Enclosures proceedings, the DEA has consistently that Respondent’s DEA Certificate of UNITED STATES DEPARTMENT OF summarily revoked DEA certificates of Registration should be REVOKED and LABOR registration based on state medical any pending application for the renewal board temporary suspension orders, and or modification of the same should be OFFICE OF THE SECRETARY it has previously denied staying its DENIED. WASHINGTON, DC proceedings pending the outcome of a Dated: July 1, 2015 CERTIFICATION OF STATES TO THE Respondent’s appeal of his state s/Christopher B. McNeil licensing authority’s suspension of his SECRETARY OF THE TREASURY Administrative Law Judge license.16 PURSUANT TO SECTION 3304(c) OF As detailed above, only a [FR Doc. 2015–28727 Filed 11–10–15; 8:45 am] THE INTERNAL REVENUE CODE OF ‘‘practitioner’’ may receive a DEA BILLING CODE 4410–09–P 1986 registration.17 Finding that Dr. Paylan is currently without license to practice as In accordance with the provisions of a medical doctor, and thus is not DEPARTMENT OF LABOR Section 3304(c) of the Internal Revenue authorized to handle controlled Code of 1986 (26 U.S.C. 3304(c)), I substances in the State of Florida, I Employment and Training hereby certify the following named cannot and will not recommend that Administration states to the Secretary of the Treasury these proceedings be held in abeyance, for the 12-month period ending on Federal-State Unemployment or that Respondent’s registration be October 31, 2015, in regard to the Compensation Program: Certifications suspended. I will instead recommend for 2015 Under the Federal unemployment compensation laws of her registration be revoked. Unemployment Tax Act those states, which heretofore have been Order Granting the Government’s approved under the Federal AGENCY: Motion for Summary Disposition and Employment and Training Unemployment Tax Act: Recommendation Administration ACTION: Notice. Alabama Louisiana I find there is no genuine dispute Alaska Maine regarding whether Respondent is a SUMMARY: The Secretary of Labor signed Arizona Maryland ‘‘practitioner’’ as that term is defined by the annual certifications under the Arkansas Massachusetts 21 U.S.C. 802(21), and that based on the Federal Unemployment Tax Act, 26 California Michigan record the Government has established, U.S.C. 3301 et seq., thereby enabling Colorado Minnesota by at least a preponderance of the employers who make contributions to Connecticut Mississippi evidence, that Respondent is not a state unemployment funds to obtain Delaware Missouri practitioner and is not authorized to certain credits against their liability for District of Columbia Montana dispense controlled substances in the the federal unemployment tax. By letter, Florida Nebraska state in which she seeks to practice with the certifications were transmitted to the Georgia Nevada a DEA Certificate of Registration. I Secretary of the Treasury. The letter and Hawaii New Hamsphire certifications are printed below. Idaho New Jersey 16 See Steven I. Topel, M.D., 58 FR Signed in Washington, DC, October 31, Illinois New Mexico 37,509(1993)(revoking Respondent’s COR based on Indiana New York a temporary suspension order issued by the 2015. Kentucky Board of Medical Licensure); see also Portia Wu, Iowa North Carolina Kansas North Dakota Carmencita E. Fallora, M.D., 60 FR 47,967, 47,968 Assistant Secretary, Employment and (1995) (rejecting Respondent’s argument that DEA Training Administration. Kentucky Ohio did not have legal authority under 21 U.S.C. October 31, 2015 Oklahoma Utah 824(a)(3) to summarily revoke her DEA registration Oregon Vermont based on a state medical board’s temporary The Honorable Jacob J. Lew, suspension order; See also Gary Alfred Shearer, Secretary of the Treasury, Pennsylvania Virginia M.D., 78 FR 19,009, 19,012 (2013) (holding that Department of the Treasury, Puerto Rico Virgin Islands ‘‘[r]evocation of the DEA certificate is warranted 1500 Pennsylvania Avenue NW., Rhode Island Washington even where a practitioner’s state authority has been South Carolina West Virginia summarily suspended and the state has yet to Washington, DC 20220. provide the practitioner with a hearing to challenge Dear Secretary Lew: South Dakota Wisconsin the state action at which he may ultimately Tennessee Wyoming prevail.’’ Id.) Transmitted herewith are an original Texas 17 In James L. Hooper, 76 FR 71, 371, 71,372 and one copy of the certifications of the (2011), the Administrator held that ‘‘the controlling states and their unemployment This certification is for the maximum question is not whether a practitioner’s license to compensation laws for the 12-month normal credit allowable under Section practice medicine in the state is suspended or revoked; rather, it is whether the Respondent is period ending on October 31, 2015. The 3302(a) of the Code. currently authorized to handle controlled first certification is required with substances in the state’’ and ‘‘even where a respect to the normal federal Signed at Washington, DC, on October practitioner’s state license has been suspended for unemployment tax credit by Section 31, 2015. a period of certain duration, the practitioner no lllllllllllllllllll longer meets the statutory definition of a 3304 of the Internal Revenue Code of practitioner.’’ Id. (citing Anne Lazar Thorn, M.D, 62 1986 (IRC), and the second certification THOMAS E. PEREZ FR 12,847, 12,848 (1997). is required with respect to the

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UNITED STATES DEPARTMENT OF DEPARTMENT OF LABOR statisticians, economists, analysts, and LABOR other data producers and users from Bureau of Labor Statistics countries all over the world. Each OFFICE OF THE SECRETARY seminar is designed to strengthen the WASHINGTON, DC Proposed Collection, Comment participants’ ability to collect and Request analyze economic and labor statistics. CERTIFICATION OF STATE UNEMPLOYMENT COMPENSATION ACTION: Notice. II. Current Action LAWS TO THE SECRETARY OF THE SUMMARY: The Department of Labor, as Office of Management and Budget TREASURY PURSUANT TO SECTION part of its continuing effort to reduce clearance is being sought for the 3303(b)(1) OF THE INTERNAL paperwork and respondent burden, proposed extension of the International REVENUE CODE OF 1986 conducts a pre-clearance consultation Training Application. Continuing the program to provide the general public existing collection will allow the BLS to In accordance with the provisions of and Federal agencies with an continue to conduct international paragraph (1) of Section 3303(b) of the opportunity to comment on proposed seminars. No questions have been added Internal Revenue Code of 1986 (26 and/or continuing collections of or deleted on the form since the last U.S.C. 3303(b)(1)), I hereby certify the information in accordance with the Office of Management and Budget unemployment compensation laws of Paperwork Reduction Act of 1995 approval in 2013. the following named states, which (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This III. Desired Focus of Comments heretofore have been certified pursuant program helps to ensure that requested to paragraph (3) of Section 3303(b) of data can be provided in the desired The Bureau of Labor Statistics is the Code, to the Secretary of the format, reporting burden (time and particularly interested in comments that: Treasury for the 12-month period financial resources) is minimized, • ending on October 31, 2015: collection instruments are clearly Evaluate whether the proposed understood, and the impact of collection collection of information is necessary for the proper performance of the Alabama Louisiana requirements on respondents can be functions of the agency, including Alaska Maine properly assessed. The Bureau of Labor Arizona Maryland Statistics (BLS) is soliciting comments whether the information will have Arkansas Massachusetts concerning the proposed extension of practical utility. • Evaluate the accuracy of the California Michigan the ‘‘International Training agency’s estimate of the burden of the Colorado Minnesota Application.’’ A copy of the proposed proposed collection of information, Connecticut Mississippi information collection request (ICR) can including the validity of the Delaware Missouri be obtained by contacting the individual District of Columbia Montana methodology and assumptions used. listed below in the Addresses section of • Enhance the quality, utility, and Florida Nebraska this notice. Georgia Nevada clarity of the information to be DATES: Written comments must be collected. Hawaii New Hamsphire submitted to the office listed in the • Idaho New Jersey Minimize the burden of the Addresses section of this notice on or collection of information on those who Illinois New Mexico before January 11, 2016. Indiana New York are to respond, including through the ADDRESSES: Iowa North Carolina Send comments to Erin use of appropriate automated, Kansas North Dakota Good, BLS Clearance Officer, Division electronic, mechanical, or other Kentucky Ohio of Management Systems, Bureau of technological collection techniques or Oklahoma Utah Labor Statistics, Room 4080, 2 other forms of information technology, Oregon Vermont Massachusetts Avenue NE., e.g., permitting electronic submissions Pennsylvania Virginia Washington, DC 20212. Written of responses. Puerto Rico Virgin Islands comments also may be transmitted by Type of Review: Extension. Rhode Island Washington fax to 202–691–5111 (this is not a toll Agency: Bureau of Labor Statistics. Title: International Training South Carolina West Virginia free number). South Dakota Wisconsin FOR FURTHER INFORMATION CONTACT: Erin Application. Good, BLS Clearance Officer, at 202– OMB Number: 1220–0179. Tennessee Wyoming Affected Public: Individuals or Texas 691–7763 (this is not a toll free number). (See Addresses section.) households. This certification is for the maximum Total Respondents: 100. SUPPLEMENTARY INFORMATION: Frequency: On occasion. additional credit allowable under I. Background Total Responses: 100. Section 3302(b) of the Code, subject to Average Time per Response: 20 the limitations of Section 3302(c) of the The BLS is one of the largest labor minutes. Code. statistics organizations in the world and Estimated Total Burden Hours: 34 Signed at Washington, DC, on October has provided international training hours. 31, 2015. since 1945. Each year, the BLS Division Total Burden Cost (capital/startup): of International Technical Cooperation $0. lllllllllllllllllll (DITC) conducts seminars of 1 to 2 Total Burden Cost (operating/ THOMAS E. PEREZ weeks duration at its training facilities maintenance): $0. [FR Doc. 2015–28710 Filed 11–10–15; 8:45 am] in Washington, DC In addition to the Comments submitted in response to annual international seminars, DITC this notice will be summarized and/or BILLING CODE 4510–30–P provides technical assistance upon included in the request for Office of request and organizes visits to the BLS Management and Budget approval of the for many international visitors each information collection request; they also year. The seminars bring together will become a matter of public record.

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Signed at Washington, DC, this 6th day of number of information collection various information collection November 2015. requirements found in sections of 29 (paperwork) requirements in its safety Kimberly Hill, CFR parts 1910, 1915, and 1926, and and health standards pertaining to Chief, Division of Management Systems, regulations on Safety and Health On-site general industry, shipyard employment, Bureau of Labor Statistics. Consultation Agreements, and the construction industry (i.e., 29 [FR Doc. 2015–28707 Filed 11–10–15; 8:45 am] Recordkeeping and Reporting CFR parts 1910, 1915, and 1926), and BILLING CODE 4510–24–P Occupational Injuries and Illnesses, and regulations containing Occupational Occupational Safety and Health Act Safety and Health On-site Consultation Variances. OSHA sought approval of Agreements, Recordkeeping and DEPARTMENT OF LABOR these requirements under the Paperwork Reporting, Occupational Injuries and Reduction Act (PRA), and, as required Illnesses, Occupational Safety and Occupational Safety and Health by that Act, is announcing the approval Administration Health State Plans, and Occupational numbers and expiration dates for these Safety and Health Act Variances. In Agency Information Collection requirements. these Federal Register announcements, Activities: Announcement of the Office DATES: This notice is effective the Agency provided 60-day comment of Management and Budget Control November 12, 2015. periods for the public to respond to Numbers Under the Paperwork FOR FURTHER INFORMATION CONTACT: OSHA’s burden hour and cost estimates. Reduction Act Theda Kenney or Todd Owen, In accord with the PRA (44 U.S.C. Directorate of Standards and Guidance, AGENCY: Occupational Safety and Health 3501–3520), OMB approved these Occupational Safety and Health Administration (OSHA), Labor. information collection requirements. Administration, U.S. Department of The table below provides the following ACTION: Notice; announcement of the Labor, Room N–3609, 200 Constitution Office of Management and Budget’s information for each of these Avenue NW., Washington, DC 20210, information collection requirements (OMB) approval of information telephone: (202) 693–2222. collection requirements. approved by OMB: The title of the SUPPLEMENTARY INFORMATION: In a series Federal Register notice; the Federal SUMMARY: The Occupational Safety and of Federal Register notices, the Agency Register reference (date, volume, and Health Administration announces that announced its requests to OMB to renew leading page); OMB’s Control Number; OMB extended its approval for a its current extensions of approvals for and the new expiration date.

Date of Federal Register publication, Federal Reg- OMB control Expiration Title of the information collection request ister reference, and OSHA docket No. No. date

13 Carcinogens Standard (29 CFR 1910.1003, April 27, 2015, 80 FR 23301, Docket No. OSHA 1218–0085 08/31/2018 1915.1003, and 1926.1103). 2011–08600. Acrylonitrile Standard (29 CFR 1910.1045) ...... November 13, 2014, 79 FR 67463, Docket No. OSHA 1218–0126 06/30/2018 2011–0195. Asbestos in Construction Standard (29 CFR May 21, 2015, 80 FR 29344, Docket No. OSHA 1218–0134 08/31/2018 1926.1101). 2012–0009. Blasting Operations and the use of Explosives (29 June 11, 2015, 80 FR 33294, Docket No. OSHA 1218–0217 10/31/2018 CFR part 1926, subpart U). 2011–0747. Bloodborne Pathogens Standard (29 CFR 1910.1030) October 7, 2014, 79 FR 60503, Docket No. OSHA 1218–0180 06/30/2018 2010–0047. Cadmium in Construction (29 CFR 1926.1127)...... May 21, 2015, 80 FR 29346, Docket No. OSHA 1218–0186 10/31/2018 2012–0004. Coke Oven Emissions (29 CFR 1910.1029) ...... September 9, 2014, 79 FR 53450, Docket No. OSHA 1218–0128 05/31/2018 2011–0181. Confined Spaces in Construction (29 CFR part 1926, October 22, 2014, 79 FR 63174, Docket No. OSHA 1218–0258 05/31/2018 subpart AA). 2011–0034. Cotton Dust (29 CFR 1910.1043) ...... November 13, 2014, 79 FR 67462, Docket No. OSHA 1218–0061 05/31/2018 2011–0194. Electrical Standards for Construction (29 CFR part October 31, 2014, 79 FR 64838, Docket No. OSHA 1218–0130 06/30/2018 1926, subpart K) and for General Industry (29 CFR 2011–0187. part 1910, subpart S). Forging Machines (29 CFR 1910.218)...... June 30, 2014, 79 FR 36832, Docket No. OSHA 1218–0228 03/31/2018 2011–0064. General Provisions and Confined and Enclosed October 22, 2014, 79 FR 63171, Docket No. OSHA 1218–0011 03/31/2018 Spaces and Other Dangerous Atmospheres in 2011–0034. Shipyard Employment (29 CFR part 1915). Grain Handling Facilities (29 CFR 1910.272) ...... February 7, 2014, 79 FR 7479, Docket No. OSHA 1218–0206 10/31/2017 2011–0028. Mechanical Power Press (29 CFR 1910.217(e)(1))..... April 29, 2015, 80 FR 23820, Docket No. OSHA 1218–0229 10/31/2017 2012–0017. Methylene Chloride (29 CFR 1910.1052) ...... December 4, 2014, 79 FR 72030, Docket No. OSHA 1218–0179 06/30/2018 2011–0060. Occupational Safety and Health On-site Consultation March 30, 2015, 80 FR 16700, Docket No. OSHA 1218–0110 06/30/2018 Agreements (29 CFR part 1908). 2011–0125. Permit-Required Confined Spaces (29 CFR 1910.146) April 27, 2015, 80 FR 23297, Docket No. OSHA 1218–0203 08/31/2018 2011–0858. Recordkeeping and Reporting Occupational Injuries February 20, 2014, 79 FR 9768, Docket No. OSHA 1218–0176 01/31/2018 and Illnesses (29 CFR part 1904). 2010–0055. Reports of Injuries to Employees Operating Mechan- April 29, 2015, 80 FR 23820, Docket No. OSHA 1218–0070 10/31/2018 ical Power Presses (29 CFR 1910.217(g)). 2012–0017.

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Date of Federal Register publication, Federal Reg- OMB control Expiration Title of the information collection request ister reference, and OSHA docket No. No. date

Respiratory Protection Standard (29 CFR 1910.134).. July 10, 2014, 79 FR 39412, Docket No. OSHA 1218–0099 03/31/2018 2011–0027. Servicing Multi-Piece and Single Piece Rim Wheels October 7, 2014, 79 FR 60502, Docket No. OSHA 1218–0219 06/30/2018 (29 CFR 1910.177). 2011–0189. Shipyard Employment Standards (29 CFR part 1915) November 13, 2014, 79 FR 67465, Docket No. OSHA 1218–0220 06/30/2018 2011–0190. Slings Standard (29 CFR 1910.184) ...... October 22, 2014, 79 FR 63172, Docket No. OSHA 1218–0223 06/30/2018 2011–0063. Telecommunications Standard (29 CFR 1910.268) ..... September 25, 2015, 79 FR 57584, No. OSHA 2010– 1218–0225 06/30/2018 0057. Variance Regulations (29 CFR 1905.10, 1905.11 and August 20, 2014, 79 FR 49342, Docket No. OSHA 1218–0265 06/30/2018 1905.12). 2009–0024. Vehicle-Mounted Elevating and Rotating Work Plat- September 25, 2014, 79 FR 57583, Docket No. 1218–0230 06/30/2018 forms Standard (29 CFR 1910.67). OSHA 2011–0185. Vertical Tandem Lifts for Marine Terminals (29 CFR October 9, 2014, 79 FR 61101, Docket No. OSHA 1218–0260 06/30/2018 part 1917). 2011–0066. Vinyl Chloride Standard ...... December 4, 2014, 79 FR 72301, Docket No. OSHA 1218–0010 06/30/2018 2011–0196.

In accordance with 5 CFR 1320.5(b), person but wish to listen to the public accommodations due to disability in an agency cannot conduct, sponsor, or proceedings may do so by following the order to attend the meeting in person or require a response to a collection of telephone call-in directions provided telephonically should contact Katherine information unless the collection below. Ward, at (202) 295–1500 or FR_ _ displays a valid OMB control number CALL-IN DIRECTIONS FOR OPEN SESSIONS: NOTICE [email protected], at least and the agency informs respondents that • Call toll-free number: 1–866–451– 2 business days in advance of the they need not respond to the collection 4981; meeting. If a request is made without of information unless it displays a valid • When prompted, enter the advance notice, LSC will make every OMB control number. following numeric pass code: effort to accommodate the request but cannot guarantee that all requests can be Authority and Signature 5907707348 • When connected to the call, please fulfilled. David Michaels, Ph.D., MPH, immediately ‘‘MUTE’’ your telephone. Dated: November 9, 2015. Assistant Secretary of Labor for Members of the public are asked to Katherine Ward, Occupational Safety and Health, keep their telephones muted to directed the preparation of this notice. Executive Assistant to the Vice President for eliminate background noises. To avoid Legal Affairs and General Counsel. The authority for this notice is 44 U.S.C. disrupting the meeting, please refrain 3506 et seq. and Secretary of Labor’s [FR Doc. 2015–28819 Filed 11–9–15; 4:15 pm] from placing the call on hold if doing so BILLING CODE 7050–01–P Order No. 1–2012 (77 FR 3912). will trigger recorded music or other Signed at Washington, DC, on November 6, sound. From time to time, the Chair may 2015. solicit comments from the public. NATIONAL SCIENCE FOUNDATION David Michaels, STATUS OF MEETING: Open. Assistant Secretary of Labor for Occupational MATTERS TO BE CONSIDERED: Notice of Permit Applications Received Safety and Health. 1. Approval of agenda Under the Antarctic Conservation Act [FR Doc. 2015–28762 Filed 11–10–15; 8:45 am] 2. Consider and act on the Board of of 1978 BILLING CODE 4510–26–P Directors’ transmittal to accompany the AGENCY: National Science Foundation. Inspector General’s Semiannual Report ACTION: Notice of permit applications to Congress for the period of April 1, LEGAL SERVICES CORPORATION received under the Antarctic 2015 through October 31, 2015 Conservation Act of 1978, Public Law 3. Public comment 95–541. Sunshine Act Meeting 4. Consider and act on other business AGENCY: Legal Services Corporation. 5. Consider and act on adjournment of SUMMARY: The National Science ACTION: Meeting Notice. meeting. Foundation (NSF) is required to publish CONTACT PERSON FOR INFORMATION: a notice of permit applications received DATE AND TIME: The Legal Services Katherine Ward, Executive Assistant to to conduct activities regulated under the Corporation’s Board of Directors will the Vice President & General Counsel, at Antarctic Conservation Act of 1978. meet telephonically on November 17, (202) 295–1500. Questions may be sent NSF has published regulations under 2015. The meeting will commence at by electronic mail to FR_NOTICE_ the Antarctic Conservation Act at Title 2:15 p.m., EST, and will continue until [email protected]. 45 Part 671 of the Code of Federal the conclusion of the Committee’s ACCESSIBILITY: LSC complies with the Regulations. This is the required notice agenda. Americans with Disabilities Act and of permit applications received. This LOCATION: John N. Erlenborn Section 504 of the 1973 Rehabilitation notice replaces one published on Nov. Conference Room, Legal Services Act. Upon request, meeting notices and 5, 2015 that was missing information on Corporation Headquarters, 3333 K Street materials will be made available in the permit number and applicant’s NW., Washington, DC 20007. alternative formats to accommodate name. PUBLIC OBSERVATION: Members of the individuals with disabilities. DATES: Interested parties are invited to public who are unable to attend in Individuals needing other submit written data, comments, or

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views with respect to this permit Dates • NRC's Agencywide Documents application by December 14, 2015. This January 16, 2015–February 6, 2016. Access and Management System application may be inspected by (ADAMS): You may obtain publicly- interested parties at the Permit Office, Nadene G. Kennedy, available documents online in the address below. Polar Coordination Specialist, Division of ADAMS Public Documents collection at Polar Programs. ADDRESSES: Comments should be http://www.nrc.gov/reading-rm/ addressed to Permit Office, Room 755, [FR Doc. 2015–28737 Filed 11–10–15; 8:45 am] adams.html. To begin the search, select Division of Polar Programs, National BILLING CODE 7555–01–P ‘‘ADAMS Public Documents'' and then Science Foundation, 4201 Wilson select ‘‘Begin Web-based ADAMS Boulevard, Arlington, Virginia 22230. Search.’’ For problems with ADAMS, NUCLEAR REGULATORY please contact the NRC’s Public FOR FURTHER INFORMATION CONTACT: COMMISSION Document Room (PDR) reference staff at Nature McGinn, ACA Permit Officer, at 1–800–397–4209, 301–415–4737, or by the above address or ACApermits@ [Docket Nos. 52–012 and 52–013; NRC– email to [email protected]. nsf.gov or (703) 292–7149. 2008–0091] • NRC's PDR: You may examine and SUPPLEMENTARY INFORMATION: The In the Matter of Nuclear Innovation purchase copies of public documents at National Science Foundation, as North America LLC, Combined the NRC’s PDR, Room O1–F21, One directed by the Antarctic Conservation Licenses for South Texas Project, White Flint North, 11555 Rockville Act of 1978 (Pub. L. 95–541), as Units 3 and 4; Notice of Hearing; Pike, Rockville, Maryland 20852. amended by the Antarctic Science, Correction Tourism and Conservation Act of 1996, FOR FURTHER INFORMATION CONTACT: has developed regulations for the AGENCY: Nuclear Regulatory Glenn Ellmers, Office of the Secretary, establishment of a permit system for Commission. U.S. Nuclear Regulatory Commission, various activities in Antarctica and ACTION: Notice of hearing; correction. Washington, DC 20555–0001, telephone: designation of certain animals and 301–415–0442; email: Glenn.Ellmers@ SUMMARY: The U.S. Nuclear Regulatory certain geographic areas a requiring nrc.gov. Commission (NRC) is correcting a notice special protection. The regulations that was published in the Federal SUPPLEMENTARY INFORMATION: In the FR establish such a permit system to Register (FR) on October 13, 2015, on October 13, 2015, in FR Doc. 2015– designate Antarctic Specially Protected regarding an evidentiary session to be 25892 on page 61492, in the third Areas. held on November 19, 2015, to receive column, in the first sentence of the Application Details testimony and exhibits in the DATES section, correct ‘‘8:30 a.m.’’ to uncontested portion of this proceeding read ‘‘9:00 a.m.’’ In the same notice, on Permit Application: 2016±020 regarding the application of Nuclear page 61493, in the first column under 1. Applicant: Laura K.O. Smith, Owner/ Innovation North America LLC, for the ‘‘Evidentiary Uncontested Hearing’’ Operator, Quixote Expeditions, 1498 combined licenses to construct and heading, correct ‘‘8:30 a.m.’’ to read Paradise Point Rd., Oakland, MD operate two additional units (Units 3 ‘‘9:00 a.m.’’ 21550. and 4) at the South Texas Project Dated at Rockville, Maryland, this 5th day Electric Generating Station site in of November, 2015. Activity for Which Permit Is Requested Matagorda County near Bay City, Texas. For the Nuclear Regulatory Commission. A small expedition would use a This action corrects the start time of the Annette L. Vietti-Cook, reinforced ketch rigged sailing yacht to hearing. Secretary of the Commission. transit from Ushuaia, Chile, to the DATES: The correction is effective [FR Doc. 2015–28767 Filed 11–10–15; 8:45 am] Antarctic Peninsula region and back. November 12, 2015. The hearing for the BILLING CODE 7590–01–P Activities to be conducted include: combined operating license for South Passenger landings, hiking, Texas Project Generating Station will be photography, wildlife viewing, and held on November 19, 2015, beginning NUCLEAR REGULATORY possible station visits. Designated at 9:00 a.m. Eastern Time, at the COMMISSION pollutants that would be generated Commission’s headquarters in during the trip include air emissions, Rockville, Maryland. The hearing on Advisory Committee on Reactor waste water (urine, grey-water) and these issues will continue on Safeguards (ACRS); Meeting of the solid waste (food waste, human solid subsequent days, if necessary. ACRS Subcommittee on Digital I&C; waste, and packaging materials). Human ADDRESSES: Please refer to Docket ID Cancellation of the November 19, 2015, waste and grey water would be disposed NRC–2008–0091 when contacting the ACRS Subcommittee Meeting of in offshore waters, complying with NRC about the availability of the provisions of Article 5 of Annex III information regarding this document. The ACRS Subcommittee meeting on and Article 6 of Annex IV of MARPOL You may obtain publicly-available Digital I&C scheduled for November 19, Protocol and the Convention. All other information related to this document 2015, 1:00 p.m. until 5:00 p.m., has been wastes would be kept for proper using any of the following methods: cancelled. disposal in Ushuaia at the end of the • Federal Rulemaking Web site: Go to The notice of this meeting was expedition. Seawater samples would be http://www.regulations.gov and search previously published in the Federal collected for studies on microplastics. for Docket ID NRC–2008–0091. Address Register on Wednesday, October 21, questions about NRC dockets to Carol 2015, (80 FR 63846). Location Gallagher; telephone: 301–415–3463; Information regarding this meeting Antarctic Peninsula region, including email: [email protected]. For can be obtained by contacting Christina Deception Island, Foyn Harbor, Paradise technical questions, contact the Antonescu, Designated Federal Official Bay, Port Lockroy, Vernadsky, Hovgard individual listed in the FOR FURTHER (DFO) (Telephone 301–415–6792 or Island, Hero Inlet/Anvers Island, and INFORMATION CONTACT section of this Email: [email protected]) Melchior Islands. document. between 7:30 a.m. and 5:15 p.m. (EST)).

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Dated: November 3, 2015. The Commission invites comments on Table of Contents Mark L. Banks, whether the Postal Service’s filing is I. Introduction Chief, Technical Support Branch, Advisory consistent with 39 U.S.C. 3632, 3633, or II. Notice of Filings Committee on Reactor Safeguards. 3642, 39 CFR part 3015, and 39 CFR III. Ordering Paragraphs [FR Doc. 2015–28591 Filed 11–10–15; 8:45 am] part 3020, subpart B. Comments are due I. Introduction BILLING CODE 7590–01–P no later than November 13, 2015. The public portions of the filing can be On November 4, 2015, the Postal accessed via the Commission’s Web site Service filed notice that it has agreed to POSTAL REGULATORY COMMISSION (http://www.prc.gov). an Amendment to the existing Parcel The Commission appoints Curtis E. Select & Parcel Return Service Contract [Docket No. CP2016–16; Order No. 2805] Kidd to serve as Public Representative 5 negotiated service agreement New Postal Product in this docket. approved in this docket.1 In support of III. Ordering Paragraphs its Notice, the Postal Service includes a AGENCY: Postal Regulatory Commission. redacted copy of the Amendment and a ACTION: Notice. It is ordered: certification of compliance with 39 1. The Commission establishes Docket U.S.C. 3633(a), as required by 39 CFR SUMMARY: The Commission is noticing a No. CP2016–16 for consideration of the 3015.5. recent Postal Service filing concerning matters raised by the Postal Service’s The Postal Service also filed the an additional Global Expedited Package Notice. unredacted Amendment and supporting Services 3 negotiated service agreement. 2. Pursuant to 39 U.S.C. 505, Curtis E. financial information under seal. The This notice informs the public of the Kidd is appointed to serve as an officer Postal Service seeks to incorporate by filing, invites public comment, and of the Commission to represent the reference the Application for Non- takes other administrative steps. interests of the general public in this Public Treatment originally filed in this DATES: Comments are due: November proceeding (Public Representative). docket for the protection of information 13, 2015. 3. Comments are due no later than that it has filed under seal. Notice at 1. ADDRESSES: Submit comments November 13, 2015. The Amendment seeks to adjust the electronically via the Commission’s 4. The Secretary shall arrange for prices listed in Table 2 of Section I.I.3, Filing Online system at http:// publication of this order in the Federal as contemplated by the terms of the www.prc.gov. Those who cannot submit Register. original contract. comments electronically should contact By the Commission. The Postal Service intends for the the person identified in the FOR FURTHER Stacy L. Ruble, Amendment to become effective one INFORMATION CONTACT section by Secretary. business day after the date that the telephone for advice on filing Commission completes its review of the [FR Doc. 2015–28734 Filed 11–10–15; 8:45 am] alternatives. Notice. Id. The Postal Service asserts BILLING CODE 7710–FW–P FOR FURTHER INFORMATION CONTACT: that the Amendment will not impair the David A. Trissell, General Counsel, at ability of the contract to comply with 39 202–789–6820. POSTAL REGULATORY COMMISSION U.S.C. 3633. Id. Attachment B at 1. SUPPLEMENTARY INFORMATION: [Docket No. CP2014–1; Order No. 2804] II. Notice of Filings Table of Contents The Commission invites comments on Amendment to Postal Product I. Introduction whether the changes presented in the II. Notice of Commission Action AGENCY: Postal Regulatory Commission. Postal Service’s Notice are consistent III. Ordering Paragraphs with the policies of 39 U.S.C. 3632, ACTION: Notice. I. Introduction 3633, or 3642, 39 CFR 3015.5, and 39 SUMMARY: The Commission is noticing a CFR part 3020, subpart B. Comments are On November 5, 2015, the Postal due no later than November 12, 2015. Service filed notice that it has entered recent Postal Service filing concerning an amendment to Parcel Select & Parcel The public portions of these filings can into an additional Global Expedited be accessed via the Commission’s Web Package Services 3 (GEPS 3) negotiated Return Service Contract 5 negotiated 1 service agreement. This notice informs site (http://www.prc.gov). service agreement (Agreement). The Commission appoints Jennaca D. To support its Notice, the Postal the public of the filing, invites public Upperman to represent the interests of Service filed a copy of the Agreement, comment, and takes other the general public (Public a copy of the Governors’ Decision administrative steps. Representative) in this docket. authorizing the product, a certification DATES: Comments are due: November of compliance with 39 U.S.C. 3633(a), 12, 2015. III. Ordering Paragraphs and an application for non-public ADDRESSES: Submit comments It is ordered: treatment of certain materials. It also electronically via the Commission’s 1. The Commission reopens Docket filed supporting financial workpapers. Filing Online system at http:// No. CP2014–1 for consideration of II. Notice of Commission Action www.prc.gov. Those who cannot submit matters raised by the Postal Service’s comments electronically should contact The Commission establishes Docket Notice. the person identified in the FOR FURTHER 2. Pursuant to 39 U.S.C. 505, the No. CP2016–16 for consideration of INFORMATION CONTACT section by matters raised by the Notice. Commission appoints Jennaca D. telephone for advice on filing Upperman to serve as an officer of the alternatives. 1 Notice of United States Postal Service of Filing Commission (Public Representative) to a Functionally Equivalent Global Expedited FOR FURTHER INFORMATION CONTACT: Package Services 3 Negotiated Service Agreement David A. Trissell, General Counsel, at 1 Notice of United States Postal Service of Change and Application for Non-Public Treatment of in Prices Pursuant to Amendment to Parcel Select Materials Filed Under Seal, November 5, 2015 202–789–6820. and Parcel Return Service Contract 5, November 4, (Notice). SUPPLEMENTARY INFORMATION: 2015 (Notice).

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represent the interests of the general Regulation Systems Compliance and SCI, the Exchange is proposing to public in this proceeding. Integrity (‘‘Regulation SCI’’).5 require certain Members to participate 3. Comments are due no later than The text of the proposed rule change in testing of the operation of the November 12, 2015. is available on the Exchange’s Web site Exchange’s BC/DR Plans. 4. The Secretary shall arrange for at http:// With respect to an SCI entity’s BC/DR publication of this order in the Federal nasdaqomxbx.cchwallstreet.com, at the Plans, including its backup systems, Register. principal office of the Exchange, and at paragraph (a) of Rule 1004 of Regulation the Commission’s Public Reference SCI requires each SCI entity to: By the Commission. Room. ‘‘[e]stablish standards for the Stacy L. Ruble, designation of those members or II. Self-Regulatory Organization’s Secretary. participants that the SCI entity Statement of the Purpose of, and [FR Doc. 2015–28703 Filed 11–10–15; 8:45 am] reasonably determines are, taken as a Statutory Basis for, the Proposed Rule BILLING CODE 7710–FW–P whole, the minimum necessary for the Change maintenance of fair and orderly markets In its filing with the Commission, the in the event of the activation of such Exchange included statements plans.’’ 7 Paragraph (b) of Rule 1004 of SECURITIES AND EXCHANGE concerning the purpose of and basis for Regulation SCI further requires each SCI COMMISSION the proposed rule change and discussed entity to ‘‘[d]esignate members or any comments it received on the participants pursuant to the standards [Release No. 34–76371; File No. SR–BX– proposed rule change. The text of these established in paragraph (a) of [Rule 2015–065] statements may be examined at the 1004] and require participation by such places specified in Item IV below. The designated members or participants in Self-Regulatory Organizations; Exchange has prepared summaries, set NASDAQ OMX BX, Inc.; Notice of Filing scheduled functional and performance forth in sections A, B, and C below, of testing of the operation of such plans, in and Immediate Effectiveness of the most significant aspects of such the manner and frequency specified by Proposed Rule Change To Adopt statements. the SCI entity, provided that such Business Continuity and Disaster A. Self-Regulatory Organization's frequency shall not be less than once Recovery Plans Testing Requirements 8 Statement of the Purpose of, and every 12 months.’’ In order to comply November 5, 2015. Statutory Basis for, the Proposed Rule with Rule 1004 of Regulation SCI, the Pursuant to Section 19(b)(1) of the Change Exchange proposes to adopt new Rule Securities Exchange Act of 1934 1170, which incorporates the 1. Purpose (‘‘Act’’),1 and Rule 19b–4 thereunder,2 requirements of Rule 1004 of Regulation notice is hereby given that on October The Exchange is proposing to adopt SCI as part of the Exchange’s rules, and 30, 2015, NASDAQ OMX BX, Inc. (‘‘BX’’ new Rule 1170 to implement the BC/DR sets forth the notice, selection criteria or ‘‘Exchange’’) filed with the Securities Plans requirements of Rule 1004 of and obligations of Members and and Exchange Commission (‘‘SEC’’ or Regulation SCI. As adopted by the Participants with respect to BC/DR ‘‘Commission’’) the proposed rule Commission, Regulation SCI applies to Plans testing. change as described in Items I and II, certain self-regulatory organizations BX proposes to adopt Rule 1170(a), below, which Items have been prepared (including the Exchange), alternative which will set forth the Exchange’s by the Exchange. The Commission is trading systems (‘‘ATSs’’), plan obligations with respect to the selection publishing this notice to solicit processors, and exempt clearing of Members and Participants for testing. comments on the proposed rule change agencies (collectively, ‘‘SCI entities’’), Specifically, the rule will require BX to ‘‘[e]stablish standards for the from interested persons. and will require these SCI entities to comply with requirements with respect designation of those Members and I. Self-Regulatory Organization’s to the automated systems central to the Options Participants that the Exchange Statement of the Terms of Substance of performance of their regulated activities. reasonably determines are, taken as a the Proposed Rule Change Among the requirements of Regulation whole, the minimum necessary for the The Exchange proposes to adopt SCI is Rule 1001(a)(2)(v), which requires maintenance of fair and orderly markets business continuity and disaster the Exchange and other SCI entities to in the event of the activation of such recovery plans (‘‘BC/DR Plans’’) testing maintain ‘‘[b]usiness continuity and plans.’’ The proposed new rule further requirements for certain Exchange disaster recovery plans that include provides that ‘‘[s]uch standards may Members 3 and BX Options Market maintaining backup and recovery include volume-based and/or market (‘‘BOM’’) Options Participants 4 capabilities sufficiently resilient and share-based criteria, and may be (‘‘Participants’’) in connection with geographically diverse and that are adjusted from time to time by the reasonably designed to achieve next Exchange.’’ Lastly, the proposed new rule will require BX to provide public 1 15 U.S.C. 78s(b)(1). business day resumption of trading and 2 17 CFR 240.19b–4. two-hour resumption of critical SCI notice of the standards that it adopts. 3 The term ‘‘Member’’ is defined as ‘‘any systems following a wide-scale BX is proposing to adopt Rule registered broker or dealer that has been admitted disruption.’’ 6 The Exchange has put 1170(b), which will set forth the to membership in the Exchange.’’ See Exchange extensive time and resources toward obligations of BX and its Members and Rule 0120(i). Participants with respect to testing. 4 planning for system failures and already The term ‘‘Options Participant’’ is defined as a Specifically, the rule will require BX to category of BX Member that is authorized to maintains robust BC/DR Plans ‘‘transact business on BX Options via the Trading consistent with the Rule. As set forth ‘‘designate Members and Options System. Options Participants may trade options for below, in connection with Regulation Participants pursuant to the standards their own proprietary accounts or, if authorized to established in paragraph (a) of this rule do so under applicable law, and consistent with and require participation by such these BX Options Rules and with applicable law 5 See Securities Exchange Act Release No. 73639 and SEC rules and regulations, may conduct (November 19, 2014), 79 FR 72252 (December 5, business on behalf of Customers.’’ See BOM Option 2014) (‘‘SCI Adopting Release’’). 7 17 CFR 242.1004(a). Rules, Chapter II, Section 1(a). 6 17 CFR 242.1001(a)(2)(v). 8 17 CFR 242.1004(b).

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designated Members and Options the Exchange and BOM over four authority, and legal responsibility, Participants in scheduled functional calendar months (‘‘Measurement under Section 6 of the Exchange Act, to and performance testing of the operation Period’’) as mandatory testing Members adopt and enforce rules (including rules of such plans, in the manner and and Participants, respectively.11 to comply with Regulation SCI’s frequency specified by the Exchange, Specifically, the Measurement Period requirements relating to BC/DR testing) provided that such frequency shall not will be the four calendar months of applicable to their members or be less than once every 12 months.’’ trading immediately prior to the participants that are designed to, among Moreover, the rule will require BX to Exchange’s announcement of the next other things, foster cooperation and provide at least six months prior notice BC/DR Plans test date. The coordination with persons engaged in to Members and Participants that are Measurement Period will always begin regulating, clearing, settling, processing designated for mandatory testing. Lastly, at a point after the Exchange announces information with respect to, and the rule will provide notice that the criteria to be used in the next BC/ facilitating transactions in securities, to participation in testing is a condition of DR Plans test. By way of example, if on remove impediments to and perfect the membership for Members and October 6, 2017 the Exchange mechanism of a free and open market Participants that are designated for announced the BC/DR Plans test and a national market system, and, in testing. selection criteria and on March 2, 2018 general, to protect investors and the The Exchange encourages all the Exchange announced a BC/DR Plans public interest.’’ 15 The Exchange Members and Participants to connect to test date of September 8, 2018, the believes that this proposal is consistent the Exchange’s backup systems and to Measurement Period used to select with such authority and legal participate in testing of such systems; 9 Members and Participants subject to responsibility. however, certain Members and mandatory testing would be November B. Self-Regulatory Organization's Participants will be obligated to 2017 through February 2018. Members Statement on Burden on Competition participate in BC/DR Plans testing. In and Participants not obligated to adopting new Rule 1170, the Exchange participate that wish to participate in The Exchange does not believe that will require mandatory participation in this test must inform the Exchange no the proposed rule change will result in BC/DR Plans testing by those Members later than September 1, 2018.12 any burden on competition that is not and Participants that the Exchange necessary or appropriate in furtherance reasonably determines are, taken as 2. Statutory Basis of the purposes of the Act, as amended. whole, the minimum necessary for the The Exchange believes that the To the contrary, the proposal is not a maintenance of fair and orderly markets proposed rule change is consistent with competitive proposal but rather is in the event of the activation of such Section 6 of the Act,13 in general, and necessary for the Exchange’s plans on the Exchange and BOM, further the objectives of Section 6(b)(5) compliance with Regulation SCI. respectively. The Exchange believes that of the Act,14 in particular, in that it is using overall participation on its C. Self-Regulatory Organization's designed to prevent fraudulent and Statement on Comments on the markets (by volume and/or market manipulative acts and practices, to share) as a measure to select Members Proposed Rule Change Received From promote just and equitable principles of Members, Participants, or Others and Participants for mandatory trade, to foster cooperation and participation in BC/DR Plans testing is coordination with persons engaged in No written comments were either a reasonable means by which it can regulating, clearing, settling, processing solicited or received. determine which Members and information with respect to, and III. Date of Effectiveness of the Participants are necessary for the facilitating transactions in securities, to maintenance of fair and orderly markets Proposed Rule Change and Timing for remove impediments to and perfect the Commission Action in the event of the activation of such mechanism of a free and open market 10 The Exchange has filed the proposed plans. For each BC/DR Plans test and a national market system, and, in rule change pursuant to Section cycle, the Exchange will select the top general, to protect investors and the 19(b)(3)(A) of the Act 16 and Rule 19b– five Members on the Exchange and the public interest; and are not designed to 4(f)(6)(iii) thereunder.17 Because the top five Participants on BOM based on permit unfair discrimination between proposed rule change does not: (i) BX’s measure of overall participation on customers, issuers, brokers, or dealers. Significantly affect the protection of each of those markets. All notices The proposal will ensure that the concerning BC/DR Plans testing will be investors or the public interest; (ii) Members and Participants necessary to posted on the Exchange’s Web site. impose any significant burden on ensure the maintenance of fair and The Exchange is proposing to initially competition; and (iii) become operative orderly markets are properly designated select Members and Participants with prior to 30 days from the date on which consistent with Rule 1004 of Regulation the highest levels of trading volume on it was filed, or such shorter time as the SCI. Specifically, the proposal will Commission may designate, if adopt clear and objective criteria with 9 In this regard, BX will allow any Member or consistent with the protection of respect to the designation of Members Participant to participate in the testing of the investors and the public interest, the Exchange’s BC/DR Plans, which is consistent with and Participants that are required to proposed rule change has become the Plan. See SCI Adopting Release, supra note 5 participate in the testing of the effective pursuant to Section 19(b)(3)(A) at 72350. BX will provide instructions on how a Exchange’s BC/DR Plans, as well as Member or Participant must inform BX of its of the Act and Rule 19b–4(f)(6)(iii) appropriate notification regarding such interest in participating in an upcoming BC/DR thereunder.18 A proposed rule change Plans test via the announcement of the test date. A designation. As set forth in the SCI Member or Participant must provide BX notice of Adopting Release, ‘‘SROs have the its interest to participate at least a week prior to the 15 See SCI Adopting Release, supra note 5 at test date and must have the appropriate connection 72350. for testing in place. 11 The Exchange may change the total number of 16 15 U.S.C. 78s(b)(3)(A)(iii). 10 BX will provide notice of the specific selection Members and Participants selected from time to 17 17 CFR 240.19b–4(f)(6). criteria and measurement period in a notice to time. 18 In addition, Rule 19b–4(f)(6) requires a self- Members and Participants. The initial selection 12 See note 9. regulatory organization to give the Commission criteria and measurement period will be announced 13 15 U.S.C. 78f. written notice of its intent to file the proposed rule no later than November 3, 2015. 14 15 U.S.C. 78f(b)(5). Continued

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filed under Rule 19b–4(f)(6)(iii) 19 and Exchange Commission, 100 F Street Act and rule 22c–1 under the Act, under normally does not become operative NE., Washington, DC 20549–1090. sections 6(c) and 17(b) of the Act for an prior to 30 days after the date of the All submissions should refer to File exemption from sections 17(a)(1) and filing. However, pursuant to Rule 19b– Number SR–BX–2015–065. This file 17(a)(2) of the Act, and under section 4(f)(6)(iii),20 the Commission may number should be included on the 12(d)(1)(J) of the Act for an exemption designate a shorter time if such action subject line if email is used. To help the from sections 12(d)(1)(A) and is consistent with the protection of Commission process and review your 12(d)(1)(B) of the Act. investors and the public interest. comments more efficiently, please use The Exchange has asked the only one method. The Commission will SUMMARY OF APPLICATION: Applicants Commission to waive the 30-day post all comments on the Commission’s request an order that would permit (a) operative delay so that the proposal may Internet Web site (http://www.sec.gov/ series of certain open-end management become operative immediately upon rules/sro.shtml). investment companies to issue shares filing. The Commission believes that Copies of the submission, all (‘‘Shares’’) redeemable in large waiving the 30-day operative delay is subsequent amendments, all written aggregations only (‘‘Creation Units’’); (b) consistent with the protection of statements with respect to the proposed secondary market transactions in Shares investors and the public interest as it rule change that are filed with the to occur at negotiated market prices will allow the Exchange to incorporate Commission, and all written rather than at net asset value (‘‘NAV’’); changes required under Regulation SCI, communications relating to the (c) certain series to pay redemption such as establishing standards for proposed rule change between the proceeds, under certain circumstances, designating BC/DR participants, prior to Commission and any person, other than more than seven days after the tender of the November 3, 2015 compliance date. those that may be withheld from the Creation Units for redemption; (d) Accordingly, the Commission public in accordance with the certain affiliated persons of the series to designates the proposed rule change to provisions of 5 U.S.C. 552, will be deposit securities into, and receive 21 be operative upon filing. available for Web site viewing and securities from, the series in connection At any time within 60 days of the printing in the Commission’s Public with the purchase and redemption of filing of the proposed rule change, the Reference Room, 100 F Street NE., Creation Units; (e) certain registered Commission summarily may Washington, DC 20549, on official management investment companies and temporarily suspend such rule change if business days between the hours of unit investment trusts outside of the it appears to the Commission that such 10:00 a.m. and 3:00 p.m. Copies of the same group of investment companies as action is necessary or appropriate in the filing also will be available for the series to acquire Shares; and (f) public interest, for the protection of inspection and copying at the principal certain series to perform creations and investors, or otherwise in furtherance of office of the Exchange. All comments redemptions of Creation Units in-kind the purposes of the Act. If the received will be posted without change; in a master-feeder structure. Commission takes such action, the the Commission does not edit personal APPLICANTS: Legg Mason Partners Fund Commission shall institute proceedings identifying information from Advisor, LLC (‘‘Initial Adviser’’), Legg to determine whether the proposed rule submissions. You should submit only Mason ETF Equity Trust (‘‘Trust’’) and should be approved or disapproved. information that you wish to make Legg Mason Investor Services, LLC IV. Solicitation of Comments available publicly. All submissions (‘‘LMIS’’). FILING DATES: The application was filed Interested persons are invited to should refer to File Number SR–BX– on June 17, 2015, and amended on submit written data, views, and 2015–065 and should be submitted on September 11, 2015 and October 27, arguments concerning the foregoing, or before December 3, 2015. 2015. including whether the proposed rule For the Commission, by the Division of change is consistent with the Act. Trading and Markets, pursuant to delegated HEARING OR NOTIFICATION OF HEARING: Comments may be submitted by any of authority.22 An order granting the requested relief the following methods: Robert W. Errett, will be issued unless the Commission Deputy Secretary. orders a hearing. Interested persons may Electronic Comments [FR Doc. 2015–28688 Filed 11–10–15; 8:45 am] request a hearing by writing to the • Commission’s Secretary and serving Use the Commission’s Internet BILLING CODE 8011–01–P comment form (http://www.sec.gov/ applicants with a copy of the request, rules/sro.shtml); or personally or by mail. Hearing requests • Send an email to rule- SECURITIES AND EXCHANGE should be received by the Commission [email protected]. Please include File COMMISSION by 5:30 p.m. on November 30, 2015, and Number SR–BX–2015–065 on the should be accompanied by proof of subject line. [Investment Company Act Release No. service on applicants, in the form of an 31895; File No. 812–14491] affidavit or, for lawyers, a certificate of Paper Comments Legg Mason Partners Fund Advisor, service. Pursuant to rule 0–5 under the • Send paper comments in triplicate LLC, et al.; Notice of Application Act, hearing requests should state the to Brent J. Fields, Secretary, Securities nature of the writer’s interest, any facts November 5, 2015. bearing upon the desirability of a change at least five business days prior to the date AGENCY: Securities and Exchange hearing on the matter, the reason for the of filing of the proposed rule change, or such request, and the issues contested. shorter time as designated by the Commission. The Commission (‘‘Commission’’). Exchange has satisfied this requirement. ACTION: Notice of an application for an Persons who wish to be notified of a 19 17 CFR 240.19b–4(f)(6). order under section 6(c) of the hearing may request notification by 20 17 CFR 240.19b–4(f)(6)(iii). Investment Company Act of 1940 (the writing to the Commission’s Secretary. 21 For purposes only of waiving the 30-day ‘‘Act’’) for an exemption from sections ADDRESSES: The Commission: Secretary, operative delay, the Commission has also considered the proposed rule’s impact on 2(a)(32), 5(a)(1), 22(d), and 22(e) of the U.S. Securities and Exchange efficiency, competition, and capital formation. See Commission, 100 F Street NE., 15 U.S.C. 78c(f). 22 17 CFR 200.30–3(a)(12). Washington, DC 20549–1090;

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Applicants: The Initial Adviser and the future (‘‘Future Funds’’), each of which markets. Other Funds will be based on Trust, 620 Eighth Avenue, New York, will operate as an exchanged-traded Underlying Indexes that will be NY 10018; LMIS, 100 International fund (‘‘ETF’’) and will track a specified comprised of foreign and domestic, or Drive, Baltimore, MD 21202. index comprised of domestic and/or solely foreign, equity and/or fixed FOR FURTHER INFORMATION CONTACT: foreign equity and/or fixed income income securities (‘‘Foreign Funds’’). Robert Shapiro, Senior Counsel at (202) securities (each, an ‘‘Underlying 7. Applicants represent that each 551–7758, or Mary Kay Frech, Branch Index’’). Any Future Fund will (a) be Fund, or its respective Master Fund, Chief, at (202) 551–6821 (Division of advised by the Initial Adviser, or an will invest at least 80% of its assets Investment Management, Chief entity controlling, controlled by, or (excluding securities lending collateral) Counsel’s Office). under common control with the Initial in the component securities of its Adviser (each, an ‘‘Adviser’’) and (b) respective Underlying Index SUPPLEMENTARY INFORMATION: The comply with the terms and conditions (‘‘Component Securities’’) and TBA following is a summary of the of the application. The Initial Fund and Transactions 3, and in the case of application. The complete application Future Funds, together, are the Foreign Funds, Component Securities may be obtained via the Commission’s ‘‘Funds.’’ 1 and Depositary Receipts 4 representing Web site by searching for the file 5. Applicants state that a Fund may Component Securities. Each Fund, or its number, or for an applicant using the operate as a feeder fund in a master- respective Master Fund, may also invest Company name box, at http:// feeder structure (‘‘Feeder Fund’’). up to 20% of its assets in certain index www.sec.gov/search/search.htm or by Applicants request that the order permit futures, options, options on index calling (202) 551–8090. a Feeder Fund to acquire shares of futures, swap contracts or other Applicants’ Representations another registered investment company derivatives, as related to its respective in the same group of investment Underlying Index and its Component 1. The Trust is a Maryland statutory companies having substantially the Securities, cash and cash equivalents, trust and is, or will be, prior to the same investment objectives as the other investment companies, as well as commencement of operations of the Feeder Fund (‘‘Master Fund’’) beyond in securities and other instruments not Initial Fund (as defined below), the limitations in section 12(d)(1)(A) of included in its Underlying Index but registered with the Commission as an the Act and permit the Master Fund, which the Adviser believes will help the open-end management investment and any principal underwriter for the Fund track its Underlying Index. A company and will offer multiple series. Master Fund, to sell shares of the Master Fund may also engage in short sales in 2. The Initial Adviser will be the Fund to the Feeder Fund beyond the accordance with its investment investment adviser to the Initial Fund limitations in section 12(d)(1)(B) of the objective. (defined below). The Initial Adviser is Act (‘‘Master-Feeder Relief’’). 8. The Trust may issue Funds that registered as an investment adviser Applicants may structure certain Feeder seek to track Underlying Indexes under the Investment Advisers Act of Funds to generate economies of scale constructed using 130/30 investment 1940 (the ‘‘Advisers Act’’). Any other and incur lower overhead costs.2 There strategies (‘‘130/30 Funds’’) or other Adviser (defined below) will also be would be no ability by Fund long/short investment strategies (‘‘Long/ registered as an investment adviser shareholders to exchange Shares of Short Funds’’). Each Long/Short Fund under the Advisers Act. The Adviser Feeder Funds for shares of another will establish (i) exposures equal to may enter into sub-advisory agreements feeder series of the Master Fund. approximately 100% of the long with one or more investment advisers to 6. Each Fund, or its respective Master positions specified by the Long/Short act as sub-advisers (each, a ‘‘Sub- Fund, will hold certain securities, Index 5 and (ii) exposures equal to Adviser’’) to particular Funds, or their currencies, other assets and other approximately 100% of the short respective Master Funds (defined investment positions (‘‘Portfolio positions specified by the Long/Short below). Any Sub-Adviser will either be Holdings’’) selected to correspond Index. Each 130/30 Fund will include registered under the Advisers Act or generally to the performance of its strategies that: (i) Establish long will not be required to register Underlying Index. Certain of the Funds thereunder. will be based on Underlying Indexes 3 A ‘‘to-be-announced transaction’’ or ‘‘TBA 3. The Trust will enter into a that will be comprised of equity and/or Transaction’’ is a method of trading mortgage- distribution agreement with one or more backed securities. In a TBA Transaction, the buyer fixed income securities issued by one or and seller agree upon general trade parameters such distributors, including LMIS. Each more of the following categories of as agency, settlement date, par amount and price. distributor will act as distributor and issuers: (i) Domestic issuers and (ii) The actual pools delivered generally are determined principal underwriter (‘‘Distributor’’) of non-domestic issuers meeting the two days prior to settlement date. 4 one or more of the Funds. Each requirements for trading in U.S. Depositary receipts representing foreign Distributor will be a broker-dealer securities (‘‘Depositary Receipts’’) include American Depositary Receipts and Global registered under the Securities 1 All existing entities that intend to rely on the Depositary Receipts. The Funds, or their respective Exchange Act of 1934 (the ‘‘Exchange requested order have been named as applicants. Master Funds, may invest in Depositary Receipts Act’’). The Distributor of any Fund may Any other existing or future entity that representing foreign securities in which they seek be an affiliated person or an affiliated subsequently relies on the order will comply with to invest. Depositary Receipts are typically issued the terms and conditions of the order. A Fund of by a financial institution (a ‘‘depositary bank’’) and person of an affiliated person of that Funds (as defined below) may rely on the order evidence ownership interests in a security or a pool Fund’s Adviser and/or Sub-Adviser(s). only to invest in Funds and not in any other of securities that have been deposited with the No Distributor will be affiliated with registered investment company. depositary bank. A Fund, or its respective Master any Exchange (defined below). 2 Operating in a master-feeder structure could Fund, will not invest in any Depositary Receipts also impose costs on a Feeder Fund and reduce its that the Adviser or any Sub-Adviser deems to be 4. Applicants request that the order tax efficiency. The Feeder Fund’s board of directors illiquid or for which pricing information is not apply to the initial series of the Trust or trustees will consider any such potential readily available. No affiliated person of a Fund, the described in the application (‘‘Initial disadvantages against the benefits of economies of Adviser or any Sub-Adviser will serve as the Fund’’), and any additional series of the scale and other benefits of operating within a depositary bank for any Depositary Receipts held by master-feeder structure. In a master-feeder a Fund, or its respective Master Fund. Trust, and any other open-end structure, the Master Fund—rather than the Feeder 5 Underlying Indexes that include both long and management investment company or Fund—would generally invest its portfolio in short positions in securities are referred to as series thereof, that may be created in the compliance with the requested order. ‘‘Long/Short Indexes.’’

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positions in securities so that total long Person’’), or an affiliated person of an quantities of the Portfolio Holdings that exposure represents approximately Affiliated Person (a ‘‘Second-Tier will form the basis for the Fund’s 130% of such Fund’s net assets; and (ii) Affiliate’’), of the Trust or a Fund, of an calculation of its NAV at the end of the simultaneously establish short positions Adviser, of any Sub-Adviser to or Business Day. Applicants believe that in other securities so that total short promoter of a Fund, or of the Distributor requiring Self-Indexing Funds to exposure represents approximately 30% (each, an ‘‘Affiliated Index Provider’’) 8 maintain full portfolio transparency will of such Fund’s net assets, as specified will serve as the Index Provider. In the provide an additional effective by the underlying Long/Short Index. case of Self-Indexing Funds, an mechanism for addressing any such Each Business Day (defined below), Affiliated Index Provider will create a potential conflicts of interest. each Long/Short Fund and 130/30 Fund proprietary, rules-based methodology to will provide full portfolio transparency create Underlying Indexes (each an 13. In addition, applicants do not on the Fund’s publicly available Web ‘‘Affiliated Index’’).9 Except with believe the potential for conflicts of site (‘‘Web site’’) by making available respect to the Self-Indexing Funds, no interest raised by the Adviser’s use of the Fund’s, or its respective Master Index Provider is or will be an Affiliated the Underlying Indexes in connection Fund’s, Portfolio Holdings before the Person, or a Second-Tier Affiliate, of the with the management of the Self commencement of trading of Shares on Trust or a Fund, of the Adviser, of any Indexing Funds and the Affiliated the Listing Exchange (defined below).6 Sub-Adviser to or promoter of a Fund, Accounts will be substantially different The information provided on the Web or of the Distributor. from the potential conflicts presented by site will be formatted to be reader- 11. Applicants recognize that Self- an adviser managing two or more friendly. Indexing Funds could raise concerns registered funds. Both the Act and the 9. A Fund will utilize either a regarding the ability of the Affiliated Advisers Act contain various replication or representative sampling Index Provider to manipulate the protections to address conflicts of strategy to track its Underlying Index. A Underlying Index to the benefit or interest where an adviser is managing Fund using a replication strategy will detriment of the Self-Indexing Fund. two or more registered funds and these invest in the Component Securities of Applicants further recognize the protections will also help address these its Underlying Index in the same potential for conflicts that may arise conflicts with respect to the Self- approximate proportions as in such with respect to the personal trading Indexing Funds. Underlying Index. A Fund using a activity of personnel of the Affiliated 14. Each Adviser and any Sub- representative sampling strategy will Index Provider who have knowledge of Adviser has adopted or will adopt, hold some, but not necessarily all, of the changes to an Underlying Index prior to pursuant to rule 206(4)–7 under the Component Securities of its Underlying the time that information is publicly Advisers Act, written policies and Index. Applicants state that a Fund disseminated. procedures designed to prevent using a representative sampling strategy 12. Applicants propose that each day violations of the Advisers Act and the will not be expected to track the that a Fund is open for business, rules thereunder. These include policies performance of its Underlying Index including any day that a Fund is and procedures designed to minimize with the same degree of accuracy as required to be open under section 22(e) potential conflicts of interest among the would an investment vehicle that of the Act (a ‘‘Business Day’’), each Self- Self-Indexing Funds and the Affiliated invested in every Component Security Indexing Fund will post on its Web site, Accounts, such as cross trading policies, of the Underlying Index with the same before commencement of trading of as well as those designed to ensure the weighting as the Underlying Index. Shares on a national securities exchange equitable allocation of portfolio Applicants expect that each Fund, or its as defined in section 2(a)(26) of the Act respective Master Fund, will have an (an ‘‘Exchange’’) on which such Fund’s transactions and brokerage annual tracking error relative to the Shares are primarily listed (‘‘Listing commissions. In addition, the Initial performance of its Underlying Index of Exchange’’), the identities and Adviser has adopted policies and less than 5%. procedures as required under section 10. The Funds will be entitled to use 8 In the event that an Adviser or Sub-Adviser 204A of the Advisers Act, which are their Underlying Indexes pursuant to serves as the Affiliated Index Provider for a Self- reasonably designed in light of the either a licensing agreement with the Indexing Fund, the terms ‘‘Affiliated Index nature of its business to prevent the Provider’’ or ‘‘Index Provider,’’ with respect to that misuse, in violation of the Advisers Act entity that compiles, creates, sponsors Self-Indexing Fund, will be limited to the or maintains an Underlying Index (each, employees of the applicable Adviser or Sub-Adviser or the Exchange Act or the rules an ‘‘Index Provider’’) or a sub-licensing that are responsible for creating, compiling and thereunder, of material non-public arrangement with the Adviser, which maintaining the relevant Underlying Index. information by the Initial Adviser or has or will have a licensing agreement 9 The Affiliated Indexes may be made available to associated persons (‘‘Inside Information registered investment companies, as well as 7 with such Index Provider. A ‘‘Self- separately managed accounts of institutional Policy’’). Any other Adviser and/or Sub- Indexing Fund’’ is a Fund for which an investors and privately offered funds that are not Adviser will be required to adopt and affiliated person, as defined in section deemed to be ‘‘investment companies’’ in reliance maintain a similar Inside Information 2(a)(3) of the Act (an ‘‘Affiliated on section 3(c)(1) or 3(c)(7) of the Act for which the Policy. In accordance with the Code of Adviser acts as adviser or subadviser (‘‘Affiliated 10 Accounts’’) as well as other such registered Ethics and Inside Information Policy 6 Under accounting procedures followed by each investment companies, separately managed of each Adviser and Sub-Advisers, Fund, trades made on the prior Business Day (‘‘T’’) accounts and privately offered funds for which it personnel of those entities with will be booked and reflected in NAV on the current does not act either as adviser or subadviser knowledge about the composition of a Business Day (T+1). Accordingly, the Funds will be (‘‘Unaffiliated Accounts’’). The Affiliated Accounts able to disclose at the beginning of the Business Day and the Unaffiliated Accounts, like the Funds, the portfolio that will form the basis for the NAV would seek to track the performance of one or more 10 The Initial Adviser has also adopted (and any calculation at the end of the Business Day. Underlying Index(es) by investing in the other Adviser has adopted or will adopt) a code of 7 The licenses for the Self-Indexing Funds will constituents of such Underlying Indexes or a ethics pursuant to rule 17j–1 under the Act and rule specifically state that the Affiliated Index Provider representative sample of such constituents of the 204A–1 under the Advisers Act, which contains (or in case of a sub-licensing agreement, the Underlying Index. Consistent with the relief provisions reasonably necessary to prevent Access Adviser) must provide the use of the Underlying requested from section 17(a), the Affiliated Persons (as defined in rule 17j–1) from engaging in Indexes and related intellectual property at no cost Accounts will not engage in Creation Unit any conduct prohibited in rule 17j–1 (‘‘Code of to the Trust and the Self-Indexing Funds. transactions with a Fund. Ethics’’).

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Portfolio Deposit 11 will be prohibited Day, the names and quantities of the 17. Purchases and redemptions of from disclosing such information to any instruments that constitute the Deposit Creation Units may be made in whole or other person, except as authorized in Instruments and the names and in part on a cash basis, rather than in the course of their employment, until quantities of the instruments that kind, solely under the following such information is made public. In constitute the Redemption Instruments circumstances: (a) To the extent there is addition, an Index Provider will not will be identical, unless the Fund is a Cash Amount; (b) if, on a given provide any information relating to Rebalancing (as defined below). In Business Day, the Fund announces changes to an Underlying Index’s addition, the Deposit Instruments and before the open of trading that all methodology for the inclusion of the Redemption Instruments will each purchases, all redemptions or all component securities, the inclusion or correspond pro rata to the positions in purchases and redemptions on that day exclusion of specific component the Fund’s portfolio (including cash will be made entirely in cash; (c) if, securities, or methodology for the positions) 13 except: (a) In the case of upon receiving a purchase or calculation or the return of component bonds, for minor differences when it is redemption order from an Authorized securities, in advance of a public impossible to break up bonds beyond Participant (defined below), the Fund announcement of such changes by the certain minimum sizes needed for determines to require the purchase or Index Provider. The Adviser will also transfer and settlement; (b) for minor redemption, as applicable, to be made include under Item 10.C. of Part 2 of its differences when rounding is necessary entirely in cash; 18 (d) if, on a given Form ADV a discussion of its to eliminate fractional shares or lots that Business Day, the Fund requires all relationship to any Affiliated Index are not tradeable round lots; 14 (c) TBA Authorized Participants purchasing or Provider and any material conflicts of Transactions, short positions, redeeming Shares on that day to deposit interest resulting therefrom, regardless derivatives and other positions that or receive (as applicable) cash in lieu of of whether the Affiliated Index Provider cannot be transferred in kind 15 will be some or all of the Deposit Instruments is a type of affiliate specified in Item 10. excluded from the Deposit Instruments or Redemption Instruments, 15. To the extent the Self-Indexing and the Redemption Instruments; 16 (d) respectively, solely because: (i) Such Funds transact with an Affiliated Person to the extent the Fund determines, on a instruments are not eligible for transfer of the Adviser or Sub-Adviser, such given Business Day, to use a through either the NSCC or DTC transactions will comply with the Act, representative sampling of the Fund’s (defined below); or (ii) in the case of the rules thereunder and the terms and portfolio; 17 or (e) for temporary periods, Foreign Funds holding non-U.S. conditions of the requested order. In to effect changes in the Fund’s portfolio investments, such instruments are not this regard, each Self-Indexing Fund’s as a result of the rebalancing of its eligible for trading due to local trading board of directors or trustees (‘‘Board’’) Underlying Index (any such change, a restrictions, local restrictions on will periodically review the Self- ‘‘Rebalancing’’). If there is a difference securities transfers or other similar Indexing Fund’s use of an Affiliated between the NAV attributable to a circumstances; or (e) if the Fund permits Index Provider. Subject to the approval Creation Unit and the aggregate market an Authorized Participant to deposit or of the Self-Indexing Fund’s Board, the value of the Deposit Instruments or receive (as applicable) cash in lieu of Adviser, Affiliated Persons of the Redemption Instruments exchanged for some or all of the Deposit Instruments Adviser (‘‘Adviser Affiliates’’) and the Creation Unit, the party conveying or Redemption Instruments, Affiliated Persons of any Sub-Adviser instruments with the lower value will respectively, solely because: (i) Such (‘‘Sub-Adviser Affiliates’’) may be also pay to the other an amount in cash instruments are, in the case of the authorized to provide custody, fund equal to that difference (the ‘‘Cash purchase of a Creation Unit, not accounting and administration and Amount’’). available in sufficient quantity; (ii) such transfer agency services to the Self- instruments are not eligible for trading Indexing Funds. Any services provided and satisfying redemptions with Redemption by an Authorized Participant or the by the Adviser, Adviser Affiliates, Sub- Instruments, including that the Deposit Instruments investor on whose behalf the Adviser and Sub-Adviser Affiliates will and Redemption Instruments are sold in Authorized Participant is acting; or (iii) be performed in accordance with the transactions that would be exempt from registration a holder of Shares of a Foreign Fund provisions of the Act, the rules under under the Securities Act of 1933 (‘‘Securities Act’’). In accepting Deposit Instruments and satisfying holding non-U.S. investments would be the Act and any relevant guidelines redemptions with Redemption Instruments that are subject to unfavorable income tax from the staff of the Commission. restricted securities eligible for resale pursuant to 16. The Shares of each Fund will be rule 144A under the Securities Act, the Funds will treatment if the holder receives 19 purchased and redeemed in Creation comply with the conditions of rule 144A. redemption proceeds in kind. Units and generally on an in-kind basis. 13 The portfolio used for this purpose will be the same portfolio used to calculate the Fund’s NAV for Except where the purchase or 18 In determining whether a particular Fund will the Business Day. sell or redeem Creation Units entirely on a cash or redemption will include cash under the 14 A tradeable round lot for a security will be the in-kind basis (whether for a given day or a given limited circumstances specified below, standard unit of trading in that particular type of order), the key consideration will be the benefit that purchasers will be required to purchase security in its primary market. would accrue to the Fund and its investors. For Creation Units by making an in-kind 15 This includes instruments that can be instance, in bond transactions, the Adviser may be deposit of specified instruments transferred in kind only with the consent of the able to obtain better execution than Share original counterparty to the extent the Fund does purchasers because of the Adviser’s size, experience (‘‘Deposit Instruments’’), and not intend to seek such consents. and potentially stronger relationships in the fixed shareholders redeeming their Shares 16 Because these instruments will be excluded income markets. Purchases of Creation Units either will receive an in-kind transfer of from the Deposit Instruments and the Redemption on an all cash basis or in-kind are expected to be specified instruments (‘‘Redemption Instruments, their value will be reflected in the neutral to the Funds from a tax perspective. In 12 determination of the Cash Amount (as defined contrast, cash redemptions typically require selling Instruments’’). On any given Business below). portfolio holdings, which may result in adverse tax 17 A Fund may only use sampling for this purpose consequences for the remaining Fund shareholders 11 The instruments and cash that the purchaser is if the sample: (i) Is designed to generate that would not occur with an in-kind redemption. required to deliver in exchange for the Creation performance that is highly correlated to the As a result, tax consideration may warrant in-kind Units it is purchasing is referred to as the ‘‘Portfolio performance of the Fund’s portfolio; (ii) consists redemptions. Deposit.’’ entirely of instruments that are already included in 19 A ‘‘custom order’’ is any purchase or 12 The Funds must comply with the federal the Fund’s portfolio; and (iii) is the same for all redemption of Shares made in whole or in part on securities laws in accepting Deposit Instruments Authorized Participants on a given Business Day. a cash basis in reliance on clause (e)(i) or (e)(ii).

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18. Creation Units will consist of Fund.20 In all cases, such Transaction created by the option continually to specified large aggregations of Shares, Fees will be limited in accordance with purchase or redeem Shares in Creation e.g., at least 25,000 Shares, and it is requirements of the Commission Units, which should help prevent expected that the initial price of a applicable to management investment Shares from trading at a material Creation Unit will range from $1 million companies offering redeemable discount or premium in relation to their to $10 million. All orders to purchase securities. Since the Transaction Fees NAV. Creation Units must be placed with the are intended to defray the transaction 23. Shares will not be individually Distributor by or through an expenses as well as to prevent possible redeemable, and owners of Shares may ‘‘Authorized Participant’’ which is shareholder dilution resulting from the acquire those Shares from the Fund, or either (1) a ‘‘Participating Party,’’ i.e., a purchase or redemption of Creation tender such Shares for redemption to the Fund, in Creation Units only. To broker-dealer or other participant in the Units, the Transaction Fees will be redeem, an investor must accumulate Continuous Net Settlement System of borne only by such purchasers or redeemers.21 The Distributor will be enough Shares to constitute a Creation the NSCC, a clearing agency registered responsible for delivering the Fund’s Unit. Redemption requests must be with the Commission, or (2) a prospectus to those persons acquiring placed through an Authorized participant in The Depository Trust Shares in Creation Units and for Participant. A redeeming investor may Company (‘‘DTC’’) (‘‘DTC Participant’’), maintaining records of both the orders pay a Transaction Fee, calculated in the which, in either case, has signed a placed with it and the confirmations of same manner as a Transaction Fee participant agreement with the acceptance furnished by it. In addition, payable in connection with purchases of Distributor. The Distributor will be the Distributor will maintain a record of Creation Units. responsible for transmitting the orders the instructions given to the applicable 24. Neither the Trust nor any Fund to the Funds and will furnish to those Fund to implement the delivery of its will be advertised or marketed or placing such orders confirmation that Shares. otherwise held out as a traditional open- the orders have been accepted, but 21. Shares of each Fund will be listed end investment company or a ‘‘mutual applicants state that the Distributor may and traded individually on an fund.’’ Instead, each Fund will be reject any order which is not submitted Exchange. It is expected that one or marketed as an ‘‘ETF.’’ All marketing in proper form. more member firms of an Exchange will materials that describe the features or 19. Each Business Day, before the be designated to act as a market maker method of obtaining, buying or selling open of trading on the Listing Exchange, (each, a ‘‘Market Maker’’) and maintain Creation Units, or Shares traded on an each Fund will cause to be published a market for Shares trading on the Exchange, or refer to redeemability, will through the NSCC the names and Exchange. Prices of Shares trading on an prominently disclose that Shares are not quantities of the instruments comprising Exchange will be based on the current individually redeemable and will disclose that the owners of Shares may the Deposit Instruments and the bid/offer market. Transactions involving acquire those Shares from the Fund or Redemption Instruments, as well as the the sale of Shares on an Exchange will be subject to customary brokerage tender such Shares for redemption to estimated Cash Amount (if any), for that commissions and charges. the Fund in Creation Units only. The day. The list of Deposit Instruments and 22. Applicants expect that purchasers Funds will provide copies of their Redemption Instruments will apply of Creation Units will include annual and semi-annual shareholder until a new list is announced on the institutional investors and arbitrageurs. reports to DTC Participants for following Business Day, and there will Market Makers, acting in their roles to distribution to beneficial owners of be no intra-day changes to the list provide a fair and orderly secondary Shares. except to correct errors in the published market for the Shares, may from time to Applicants’ Legal Analysis list. Each Listing Exchange or other time find it appropriate to purchase or major market data provider will redeem Creation Units. Applicants 1. Applicants request an order under disseminate, every 15 seconds during expect that secondary market section 6(c) of the Act for an exemption regular Exchange trading hours, through purchasers of Shares will include both from sections 2(a)(32), 5(a)(1), 22(d), and the facilities of the Consolidated Tape institutional and retail investors.22 The 22(e) of the Act and rule 22c–1 under Association or other widely price at which Shares trade will be the Act, under section 12(d)(1)(J) of the disseminated means, an amount for disciplined by arbitrage opportunities Act for an exemption from sections each Fund stated on a per individual 12(d)(1)(A) and (B) of the Act, and Share basis representing the sum of (i) 20 Applicants are not requesting relief from under sections 6(c) and 17(b) of the Act the estimated Cash Amount and (ii) the section 18 of the Act. Accordingly, a Master Fund for an exemption from sections 17(a)(1) current value of the Deposit may require a Transaction Fee payment to cover and 17(a)(2) of the Act. expenses related to purchases or redemptions of the Instruments. Master Fund’s shares by a Feeder Fund only if it 2. Section 6(c) of the Act provides that the Commission may exempt any 20. Transaction expenses, including requires the same payment for equivalent purchases or redemptions by any other feeder fund. Thus, for person, security or transaction, or any operational processing and brokerage example, a Master Fund may require payment of a class of persons, securities or costs, will be incurred by a Fund when Transaction Fee by a Feeder Fund for transactions for 20,000 or more shares so long as it requires transactions, from any provision of the investors purchase or redeem Creation Act, if and to the extent that such Units in-kind and such costs have the payment of the same Transaction Fee by all feeder funds for transactions involving 20,000 or more exemption is necessary or appropriate potential to dilute the interests of the shares. in the public interest and consistent Fund’s existing shareholders. Each 21 Where a Fund permits an in-kind purchaser to with the protection of investors and the substitute cash-in-lieu of depositing one or more of Fund will impose purchase or purposes fairly intended by the policy redemption transaction fees the requisite Deposit Instruments, the purchaser may be assessed a higher Transaction Fee to cover and provisions of the Act. Section 17(b) (‘‘Transaction Fees’’) in connection with the cost of purchasing such Deposit Instruments. of the Act authorizes the Commission to effecting such purchases or redemptions 22 Shares will be registered in book-entry form exempt a proposed transaction from of Creation Units. With respect to only. DTC or its nominee will be the record or section 17(a) of the Act if evidence Feeder Funds, the Transaction Fee registered owner of all outstanding Shares. Beneficial ownership of Shares will be shown on establishes that the terms of the would be paid indirectly to the Master the records of DTC or the DTC Participants. transaction, including the consideration

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to be paid or received, are reasonable will not comply with section 22(d) of Instruments to redeeming investors, and fair and do not involve the Act and rule 22c–1 under the Act. coupled with local market holiday overreaching on the part of any person Applicants request an exemption under schedules, may require a delivery concerned, and the proposed section 6(c) from these provisions. process of up to fifteen (15) calendar transaction is consistent with the 5. Applicants assert that the concerns days.24 Accordingly, with respect to policies of the registered investment sought to be addressed by section 22(d) Foreign Funds only, applicants hereby company and the general provisions of of the Act and rule 22c–1 under the Act request relief under section 6(c) from the Act. Section 12(d)(1)(J) of the Act with respect to pricing are equally the requirement imposed by section provides that the Commission may satisfied by the proposed method of 22(e) to allow Foreign Funds to pay exempt any person, security, or pricing Shares. Applicants maintain that redemption proceeds within fifteen (15) transaction, or any class or classes of while there is little legislative history calendar days following the tender of persons, securities or transactions, from regarding section 22(d), its provisions, Creation Units for redemption.25 any provisions of section 12(d)(1) if the as well as those of rule 22c–1, appear to 8. Applicants believe that Congress exemption is consistent with the public have been designed to (a) prevent adopted section 22(e) to prevent interest and the protection of investors. dilution caused by certain riskless- unreasonable, undisclosed or trading schemes by principal unforeseen delays in the actual payment Sections 5(a)(1) and 2(a)(32) of the Act underwriters and contract dealers, (b) of redemption proceeds. Applicants 3. Section 5(a)(1) of the Act defines an prevent unjust discrimination or propose that allowing redemption ‘‘open-end company’’ as a management preferential treatment among buyers, payments for Creation Units of a Foreign investment company that is offering for and (c) ensure an orderly distribution of Fund to be made within fifteen calendar sale or has outstanding any redeemable investment company shares by days would not be inconsistent with the security of which it is the issuer. eliminating price competition from spirit and intent of section 22(e). Section 2(a)(32) of the Act defines a dealers offering shares at less than the Applicants suggest that a redemption redeemable security as any security, published sales price and repurchasing payment occurring within fifteen other than short-term paper, under the shares at more than the published calendar days following a redemption terms of which the owner, upon its redemption price. request would adequately afford presentation to the issuer, is entitled to 6. Applicants believe that none of investor protection. receive approximately a proportionate these purposes will be thwarted by 9. Applicants are not seeking relief share of the issuer’s current net assets, permitting Shares to trade in the from section 22(e) with respect to or the cash equivalent. Because Shares secondary market at negotiated prices. Foreign Funds, or their respective will not be individually redeemable, Applicants state that (a) secondary Master Funds, that do not effect applicants request an order that would market trading in Shares does not creations and redemptions of Creation permit the Funds to register as open-end involve a Fund as a party and will not Units in-kind.26 result in dilution of an investment in management investment companies and Section 12(d)(1) issue Shares that are redeemable in Shares, and (b) to the extent different 10. Section 12(d)(1)(A) of the Act Creation Units only.23 Applicants state prices exist during a given trading day, prohibits a registered investment that investors may purchase Shares in or from day to day, such variances occur company from acquiring securities of an Creation Units and redeem Creation as a result of third-party market forces, investment company if such securities Units from each Fund. Applicants such as supply and demand. Therefore, represent more than 3% of the total further state that because Creation Units applicants assert that secondary market outstanding voting stock of the acquired may always be purchased and redeemed transactions in Shares will not lead to discrimination or preferential treatment company, more than 5% of the total at NAV, the price of Shares on the among purchasers. Finally, applicants assets of the acquiring company, or, secondary market should not vary contend that the price at which Shares together with the securities of any other materially from NAV. trade will be disciplined by arbitrage investment companies, more than 10% Section 22(d) of the Act and Rule 22c± opportunities created by the option of the total assets of the acquiring 1 Under the Act continually to purchase or redeem company. Section 12(d)(1)(B) of the Act 4. Section 22(d) of the Act, among Shares in Creation Units, which should prohibits a registered open-end other things, prohibits a dealer from help prevent Shares from trading at a investment company, its principal selling a redeemable security that is material discount or premium in underwriter and any other broker-dealer currently being offered to the public by relation to their NAV. from knowingly selling the investment or through an underwriter, except at a Section 22(e) company’s shares to another investment company if the sale will cause the current public offering price described 7. Section 22(e) of the Act generally in the prospectus. Rule 22c–1 under the acquiring company to own more than prohibits a registered investment 3% of the acquired company’s voting Act generally requires that a dealer company from suspending the right of selling, redeeming or repurchasing a stock, or if the sale will cause more than redemption or postponing the date of 10% of the acquired company’s voting redeemable security do so only at a payment of redemption proceeds for price based on its NAV. Applicants state more than seven days after the tender of 24 that secondary market trading in Shares Applicants state that certain countries in which a security for redemption. Applicants a Fund may invest have historically had settlement will take place at negotiated prices, not state that settlement of redemptions for periods of up to fifteen (15) calendar days. at a current offering price described in Foreign Funds will be contingent not 25 Applicants acknowledge that no relief obtained from the requirements of section 22(e) will affect a Fund’s prospectus, and not at a price only on the settlement cycle of the based on NAV. Thus, purchases and any obligations applicants may otherwise have United States market, but also on under rule 15c6–1 under the Exchange Act sales of Shares in the secondary market current delivery cycles in local markets requiring that most securities transactions be settled for the underlying foreign securities within three business days of the trade date. 23 The Master Funds will not require relief from 26 In addition, the requested exemption from sections 2(a)(32) and 5(a)(1) because the Master held by a Foreign Fund. Applicants section 22(e) would only apply to in-kind Funds will issue individually redeemable state that the delivery cycles currently redemptions by the Feeder Funds and would not securities. practicable for transferring Redemption apply to in-kind redemptions by other feeder funds.

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stock to be owned by investment Adviser or Sponsor, and any investment provided under the advisory contract of companies generally. company and any issuer that would be any Fund, or its respective Master Fund, 11. Applicants request an exemption an investment company but for sections in which the Investing Management to permit registered management 3(c)(1) or 3(c)(7) of the Act that is Company may invest. In addition, under investment companies and unit advised or sponsored by a Fund of condition B.5, a Fund of Funds Adviser, investment trusts (‘‘UITs’’) that are not Funds Adviser or Sponsor, or any or a Fund of Funds’ trustee or Sponsor, advised or sponsored by the Adviser person controlling, controlled by, or as applicable, will waive fees otherwise and are not part of the same ‘‘group of under common control with a Fund of payable to it by the Fund of Funds in investment companies,’’ as defined in Funds Adviser or Sponsor (‘‘Fund of an amount at least equal to any section 12(d)(1)(G)(ii) of the Act as the Funds Advisory Group’’) from compensation (including fees received Funds (such management investment controlling (individually or in the pursuant to any plan adopted by a companies are referred to as ‘‘Investing aggregate) a Fund within the meaning of Fund, or its respective Master Fund, Management Companies,’’ such UITs section 2(a)(9) of the Act. The same under rule 12b–1 under the Act) are referred to as ‘‘Investing Trusts,’’ prohibition would apply to any Fund of received from a Fund by the Fund of and Investing Management Companies Funds Sub-Adviser, any person Funds Adviser, trustee or Sponsor or an and Investing Trusts are collectively controlling, controlled by or under affiliated person of the Fund of Funds referred to as ‘‘Funds of Funds’’), to common control with the Fund of Adviser, trustee or Sponsor, other than acquire Shares beyond the limits of Funds Sub-Adviser, and any investment any advisory fees paid to the Fund of section 12(d)(1)(A) of the Act; and the company or issuer that would be an Funds Adviser, trustee or Sponsor or its Funds, and any principal underwriter investment company but for sections affiliated person by a Fund, in for the Funds, and/or any Broker 3(c)(1) or 3(c)(7) of the Act (or portion connection with the investment by the registered under the Exchange Act, to of such investment company or issuer) Fund of Funds in the Fund. Applicants sell Shares to Funds of Funds beyond advised or sponsored by the Fund of state that any sales charges and/or the limits of section 12(d)(1)(B) of the Funds Sub-Adviser or any person service fees charged with respect to Act. controlling, controlled by or under shares of a Fund of Funds will not 12. Each Investing Management common control with the Fund of exceed the limits applicable to a fund of Company will be advised by an Funds Sub-Adviser (‘‘Fund of Funds funds as set forth in NASD Conduct investment adviser within the meaning Sub-Advisory Group’’). Rule 2830.28 of section 2(a)(20)(A) of the Act (the 15. Applicants propose other conditions to limit the potential for 17. Applicants submit that the ‘‘Fund of Funds Adviser’’) and may be proposed arrangement will not create an sub-advised by investment advisers undue influence over the Funds, including that no Fund of Funds or overly complex fund structure. within the meaning of section Applicants note that no Fund, nor its 2(a)(20)(B) of the Act (each a ‘‘Fund of Fund of Funds Affiliate (except to the extent it is acting in its capacity as an respective Master Fund, will acquire Funds Sub-Adviser’’). Any investment securities of any investment company or adviser to an Investing Management investment adviser to a Fund) will cause a Fund to purchase a security in an company relying on section 3(c)(1) or Company will be registered under the 3(c)(7) of the Act in excess of the limits Advisers Act. Each Investing Trust will offering of securities during the existence of an underwriting or selling contained in section 12(d)(1)(A) of the be sponsored by a sponsor (‘‘Sponsor’’). Act, except to the extent permitted by 13. Applicants submit that the syndicate of which a principal underwriter is an Underwriting Affiliate exemptive relief from the Commission proposed conditions to the requested permitting the Fund, or its respective relief adequately address the concerns (‘‘Affiliated Underwriting’’). An ‘‘Underwriting Affiliate’’ is a principal Master Fund, to purchase shares of underlying the limits in sections other investment companies for short- 12(d)(1)(A) and (B), which include underwriter in any underwriting or selling syndicate that is an officer, term cash management purposes or concerns about undue influence by a pursuant to the Master-Feeder Relief. To fund of funds over underlying funds, director, member of an advisory board, Fund of Funds Adviser, Fund of Funds ensure a Fund of Funds is aware of the excessive layering of fees and overly terms and conditions of the requested complex fund structures. Applicants Sub-Adviser, employee or Sponsor of the Fund of Funds, or a person of which order, the Fund of Funds will enter into believe that the requested exemption is an agreement with the Fund (‘‘FOF consistent with the public interest and any such officer, director, member of an advisory board, Fund of Funds Adviser Participation Agreement’’). The FOF the protection of investors. Participation Agreement will include an 14. Applicants believe that neither a or Fund of Funds Sub-Adviser, employee or Sponsor is an affiliated acknowledgement from the Fund of Fund of Funds nor a Fund of Funds Funds that it may rely on the order only Affiliate would be able to exert undue person (except that any person whose relationship to the Fund is covered by to invest in the Funds and not in any influence over a Fund.27 To limit the section 10(f) of the Act is not an other investment company. control that a Fund of Funds may have Underwriting Affiliate). over a Fund, applicants propose a 18. Applicants also note that a Fund 16. Applicants do not believe that the may choose to reject a direct purchase condition prohibiting a Fund of Funds proposed arrangement will involve Adviser or Sponsor, any person of Shares in Creation Units by a Fund excessive layering of fees. The board of of Funds. To the extent that a Fund of controlling, controlled by, or under directors or trustees of any Investing common control with a Fund of Funds Funds purchases Shares in the Management Company, including a secondary market, a Fund would still majority of the directors or trustees who 27 A ‘‘Fund of Funds Affiliate’’ is a Fund of Funds retain its ability to reject any initial Adviser, Fund of Funds Sub-Adviser, Sponsor, are not ‘‘interested persons’’ within the investment by a Fund of Funds in promoter, and principal underwriter of a Fund of meaning of section 2(a)(19) of the Act excess of the limits of section Funds, and any person controlling, controlled by, (‘‘disinterested directors or trustees’’), 12(d)(1)(A) by declining to enter into a or under common control with any of those entities. will find that the advisory fees charged A ‘‘Fund Affiliate’’ is an investment adviser, promoter, or principal underwriter of a Fund and under the contract are based on services 28 Any references to NASD Conduct Rule 2830 any person controlling, controlled by or under provided that will be in addition to, include any successor or replacement FINRA rule common control with any of these entities. rather than duplicative of, services to NASD Conduct Rule 2830.

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FOF Participation Agreement with the controlled by or under common control valued pursuant to verifiable objective Fund of Funds. with the Adviser and hence affiliated standards. The method of valuing 19. Applicants also are seeking the persons of each other. In addition, the Portfolio Holdings held by a Fund is Master-Feeder Relief to permit the Funds may be deemed to be under identical to that used for calculating Feeder Funds to perform creations and common control with any other ‘‘in-kind’’ purchase or redemption redemptions of Shares in-kind in a registered investment company (or values and therefore creates no master-feeder structure. Applicants series thereof) advised by an Adviser or opportunity for affiliated persons or assert that this structure is substantially an entity controlling, controlled by or Second-Tier Affiliates of applicants to identical to traditional master-feeder under common control with an Adviser effect a transaction detrimental to the structures permitted pursuant to the (an ‘‘Affiliated Fund’’). Any investor, other holders of Shares of that Fund. exception provided in section including Market Makers, owning 5% or Similarly, applicants submit that, by 12(d)(1)(E) of the Act. Section holding in excess of 25% of the Trust or using the same standards for valuing 12(d)(1)(E) provides that the percentage such Funds, may be deemed affiliated Portfolio Holdings held by a Fund as are limitations of section 12(d)(1)(A) and (B) persons of the Trust or such Funds. In used for calculating ‘‘in-kind’’ shall not apply to a security issued by addition, an investor could own 5% or redemptions or purchases, the Fund an investment company (in this case, more, or in excess of 25% of the will ensure that its NAV will not be the shares of the applicable Master outstanding shares of one or more adversely affected by such securities Fund) if, among other things, that Affiliated Funds making that investor a transactions. Applicants also note that security is the only investment security Second-Tier Affiliate of the Funds. the ability to take deposits and make held by the investing investment 21. Applicants request an exemption redemptions ‘‘in-kind’’ will help each company (in this case, the Feeder from sections 17(a)(1) and 17(a)(2) of the Fund to track closely its Underlying Fund). Applicants believe the proposed Act pursuant to sections 6(c) and 17(b) Index and therefore aid in achieving the master-feeder structure complies with of the Act to permit persons that are Fund’s objectives. section 12(d)(1)(E) because each Feeder Affiliated Persons of the Funds, or 23. Applicants also seek relief under Fund will hold only investment Second-Tier Affiliates of the Funds, sections 6(c) and 17(b) from section securities issued by its corresponding solely by virtue of one or more of the 17(a) to permit a Fund that is an Master Fund; however, the Feeder following: (a) Holding 5% or more, or in affiliated person, or an affiliated person Funds may receive securities other than excess of 25%, of the outstanding of an affiliated person, of a Fund of securities of its corresponding Master Shares of one or more Funds; (b) an Funds to sell its Shares to and redeem Fund if a Feeder Fund accepts an in- affiliation with a person with an its Shares from a Fund of Funds, and to kind creation. To the extent that a ownership interest described in (a); or engage in the accompanying in-kind Feeder Fund may be deemed to be (c) holding 5% or more, or more than transactions with the Fund of Funds.29 holding both shares of the Master Fund 25%, of the shares of one or more Applicants state that the terms of the and other securities, applicants request Affiliated Funds, to effectuate purchases transactions are fair and reasonable and relief from section 12(d)(1)(A) and (B). and redemptions ‘‘in-kind.’’ do not involve overreaching. Applicants The Feeder Funds would operate in 22. Applicants assert that no useful note that any consideration paid by a compliance with all other provisions of purpose would be served by prohibiting Fund of Funds for the purchase or section 12(d)(1)(E). such affiliated persons from making ‘‘in- redemption of Shares directly from a kind’’ purchases or ‘‘in-kind’’ Fund will be based on the NAV of the Sections 17(a)(1) and (2) of the Act redemptions of Shares of a Fund in Fund.30 Applicants believe that any 20. Sections 17(a)(1) and (2) of the Act Creation Units. Both the deposit proposed transactions directly between generally prohibit an affiliated person of procedures for ‘‘in-kind’’ purchases of the Funds and Funds of Funds will be a registered investment company, or an Creation Units and the redemption consistent with the policies of each affiliated person of such a person, from procedures for ‘‘in-kind’’ redemptions of selling any security to or purchasing any Creation Units will be effected in 29 Although applicants believe that most Funds of security from the company. Section exactly the same manner for all Funds will purchase Shares in the secondary 2(a)(3) of the Act defines ‘‘affiliated market and will not purchase Creation Units purchases and redemptions, regardless directly from a Fund, a Fund of Funds might seek person’’ of another person to include (a) of size or number. There will be no to transact in Creation Units directly with a Fund any person directly or indirectly discrimination between purchasers or that is an affiliated person of a Fund of Funds. To owning, controlling or holding with redeemers. Deposit Instruments and the extent that purchases and sales of Shares occur power to vote 5% or more of the in the secondary market and not through principal Redemption Instruments for each Fund transactions directly between a Fund of Funds and outstanding voting securities of the will be valued in the identical manner a Fund, relief from section 17(a) would not be other person, (b) any person 5% or more as those Portfolio Holdings currently necessary. However, the requested relief would of whose outstanding voting securities held by such Fund and the valuation of apply to direct sales of Shares in Creation Units by are directly or indirectly owned, a Fund to a Fund of Funds and redemptions of the Deposit Instruments and those Shares. Applicants are not seeking relief from controlled or held with the power to Redemption Instruments will be made section 17(a) for, and the requested relief will not vote by the other person, and (c) any in an identical manner regardless of the apply to, transactions where a Fund could be person directly or indirectly controlling, identity of the purchaser or redeemer. deemed an affiliated person, or an affiliated person controlled by or under common control of an affiliated person of a Fund of Funds because Applicants do not believe that ‘‘in-kind’’ an Adviser or an entity controlling, controlled by with the other person. Section 2(a)(9) of purchases and redemptions will result or under common control with an Adviser provides the Act defines ‘‘control’’ as the power in abusive self-dealing or overreaching, investment advisory services to that Fund of Funds. to exercise a controlling influence over but rather assert that such procedures 30 Applicants acknowledge that the receipt of the management or policies of a will be implemented consistently with compensation by (a) an affiliated person of a Fund of Funds, or an affiliated person of such person, for company, and provides that a control each Fund’s objectives and with the the purchase by the Fund of Funds of Shares of a relationship will be presumed where general purposes of the Act. Applicants Fund or (b) an affiliated person of a Fund, or an one person owns more than 25% of a believe that ‘‘in-kind’’ purchases and affiliated person of such person, for the sale by the company’s voting securities. The Funds redemptions will be made on terms Fund of its Shares to a Fund of Funds, may be prohibited by section 17(e)(1) of the Act. The FOF may be deemed to be controlled by the reasonable to applicants and any Participation Agreement also will include this Adviser or an entity controlling, affiliated persons because they will be acknowledgment.

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Fund of Funds. The purchase of 2. As long as a Fund operates in respect to a Fund, or its respective Creation Units by a Fund of Funds reliance on the requested order, Shares Master Fund, for which the Fund of directly from a Fund will be of such Fund will be listed on an Funds’ Sub-Adviser or a person accomplished in accordance with the Exchange. controlling, controlled by or under investment restrictions of any such 3. Neither the Trust nor any Fund will common control with the Fund of Fund of Funds and will be consistent be advertised or marketed as an open- Funds’ Sub-Adviser acts as the with the investment policies set forth in end investment company or a mutual investment adviser within the meaning the Fund of Funds’ registration fund. Any advertising material that of section 2(a)(20)(A) of the Act. statement. Applicants also state that the describes the purchase or sale of 2. No Fund of Funds or Fund of proposed transactions are consistent Creation Units or refers to redeemability Funds Affiliate will cause any existing with the general purposes of the Act and will prominently disclose that Shares or potential investment by the Fund of are appropriate in the public interest. are not individually redeemable and Funds in a Fund to influence the terms 24. To the extent that a Fund operates that owners of Shares may acquire those of any services or transactions between in a master-feeder structure, applicants Shares from the Fund and tender those the Fund of Funds or Fund of Funds also request relief permitting the Feeder Shares for redemption to a Fund in Affiliate and the Fund, or its respective Funds to engage in in-kind creations Creation Units only. Master Fund, or a Fund Affiliate. and redemptions with the applicable 4. The Web site, which is and will be 3. The board of directors or trustees of Master Fund. Applicants state that the publicly accessible at no charge, will an Investing Management Company, customary section 17(a)(1) and 17(a)(2) contain, on a per Share basis for each including a majority of the disinterested relief would not be sufficient to permit Fund, the prior Business Day’s NAV and directors or trustees, will adopt such transactions because the Feeder the market closing price or the midpoint procedures reasonably designed to Funds and the applicable Master Fund of the bid/ask spread at the time of the ensure that the Fund of Funds Adviser could also be affiliated by virtue of calculation of such NAV (‘‘Bid/Ask and Fund of Funds Sub-Adviser are having the same investment adviser. Price’’), and a calculation of the conducting the investment program of However, applicants believe that in- premium or discount of the market the Investing Management Company kind creations and redemptions closing price or Bid/Ask Price against without taking into account any between a Feeder Fund and a Master such NAV. consideration received by the Investing Fund advised by the same investment 5. Each Self-Indexing Fund, Long/ Management Company or a Fund of adviser do not involve ‘‘overreaching’’ Short Fund and 130/30 Fund will post Funds Affiliate from a Fund, or its by an affiliated person. Such on the Web site on each Business Day, respective Master Fund, or Fund transactions will occur only at the before commencement of trading of Affiliate in connection with any services Feeder Fund’s proportionate share of Shares on the Exchange, the Fund’s, or or transactions. the Master Fund’s net assets, and the its respective Master Fund’s, Portfolio 4. Once an investment by a Fund of distributed securities will be valued in Holdings. Funds in the securities of a Fund the same manner as they are valued for 6. No Adviser or any Sub-Adviser, exceeds the limits in section the purposes of calculating the directly or indirectly, will cause any 12(d)(1)(A)(i) of the Act, the Board of applicable Master Fund’s NAV. Further, Authorized Participant (or any investor the Fund, or its respective Master Fund, all such transactions will be effected on whose behalf an Authorized including a majority of the directors or with respect to pre-determined Participant may transact with the Fund) trustees who are not ‘‘interested securities and on the same terms with to acquire any Deposit Instrument for a persons’’ within the meaning of section respect to all investors. Finally, such Fund, or its respective Master Fund, 2(a)(19) of the Act (‘‘non-interested transaction would only occur as a result through a transaction in which the Board members’’), will determine that of, and to effectuate, a creation or Fund, or its respective Master Fund, any consideration paid by the Fund, or redemption transaction between the could not engage directly. its respective Master Fund, to the Fund of Funds or a Fund of Funds Affiliate Feeder Fund and a third-party investor. B. Section 12(d)(1) Relief Applicants believe that the terms of the in connection with any services or proposed transactions are reasonable 1. The members of a Fund of Funds’ transactions: (i) Is fair and reasonable in and fair and do not involve Advisory Group will not control relation to the nature and quality of the overreaching on the part of any person (individually or in the aggregate) a services and benefits received by the concerned, the proposed transactions Fund, or its respective Master Fund, Fund, or its respective Master Fund; (ii) are consistent with the policy of each within the meaning of section 2(a)(9) of is within the range of consideration that Fund and will be consistent with the the Act. The members of a Fund of the Fund would be required to pay to investment objectives and policies of Funds’ Sub-Advisory Group will not another unaffiliated entity in connection each Fund of Funds, and the proposed control (individually or in the aggregate) with the same services or transactions; transactions are consistent with the a Fund, or its respective Master Fund, and (iii) does not involve overreaching general purposes of the Act. within the meaning of section 2(a)(9) of on the part of any person concerned. the Act. If, as a result of a decrease in This condition does not apply with Applicants’ Conditions the outstanding voting securities of a respect to any services or transactions Applicants agree that any order of the Fund, the Fund of Funds’ Advisory between a Fund, or its respective Master Commission granting the requested Group or the Fund of Funds’ Sub- Fund, and its investment adviser(s), or relief will be subject to the following Advisory Group, each in the aggregate, any person controlling, controlled by or conditions: becomes a holder of more than 25 under common control with such percent of the outstanding voting investment adviser(s). A. ETF Relief securities of a Fund, it will vote its 5. The Fund of Funds Adviser, or 1. The requested relief will expire on Shares of the Fund in the same trustee or Sponsor of an Investing Trust, the effective date of any Commission proportion as the vote of all other as applicable, will waive fees otherwise rule under the Act that provides relief holders of the Fund’s Shares. This payable to it by the Fund of Funds in permitting the operation of index-based condition does not apply to the Fund of an amount at least equal to any ETFs. Funds’ Sub-Advisory Group with compensation (including fees received

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pursuant to any plan adopted by a securities purchased during a the investment and for a period of not Fund, or its respective Master Fund, comparable period of time in less than six years thereafter, the first under rule 12b–l under the Act) underwritings other than Affiliated two years in an easily accessible place. received from a Fund, or its respective Underwritings or to a benchmark such 10. Before approving any advisory Master Fund, by the Fund of Funds as a comparable market index; and (iii) contract under section 15 of the Act, the Adviser, or trustee or Sponsor of the whether the amount of securities board of directors or trustees of each Investing Trust, or an affiliated person purchased by the Fund, or its respective of the Fund of Funds Adviser, or trustee Master Fund, in Affiliated Investing Management Company, or Sponsor of the Investing Trust, other Underwritings and the amount including a majority of the disinterested than any advisory fees paid to the Fund purchased directly from an directors or trustees, will find that the of Funds Adviser, trustee or Sponsor of Underwriting Affiliate have changed advisory fees charged under such an Investing Trust, or its affiliated significantly from prior years. The contract are based on services provided person by the Fund, or its respective Board will take any appropriate actions that will be in addition to, rather than Master Fund, in connection with the based on its review, including, if duplicative of, the services provided investment by the Fund of Funds in the appropriate, the institution of under the advisory contract(s) of any Fund. Any Fund of Funds Sub-Adviser procedures designed to ensure that Fund, or its respective Master Fund, in will waive fees otherwise payable to the purchases of securities in Affiliated which the Investing Management Fund of Funds Sub-Adviser, directly or Underwritings are in the best interest of Company may invest. These findings indirectly, by the Investing Management shareholders of the Fund. and their basis will be fully recorded in Company in an amount at least equal to 8. Each Fund, or its respective Master the minute books of the appropriate any compensation received from a Fund, will maintain and preserve Investing Management Company. Fund, or its respective Master Fund, by permanently in an easily accessible the Fund of Funds Sub-Adviser, or an place a written copy of the procedures 11. Any sales charges and/or service affiliated person of the Fund of Funds described in the preceding condition, fees charged with respect to shares of a Sub-Adviser, other than any advisory and any modifications to such Fund of Funds will not exceed the fees paid to the Fund of Funds Sub- procedures, and will maintain and limits applicable to a fund of funds as Adviser or its affiliated person by the preserve for a period of not less than six set forth in NASD Conduct Rule 2830. Fund, or its respective Master Fund, in years from the end of the fiscal year in 12. No Fund, or its respective Master connection with the investment by the which any purchase in an Affiliated Fund, will acquire securities of an Investing Management Company in the Underwriting occurred, the first two investment company or company Fund made at the direction of the Fund years in an easily accessible place, a relying on section 3(c)(1) or 3(c)(7) of of Funds Sub-Adviser. In the event that written record of each purchase of the Act in excess of the limits contained the Fund of Funds Sub-Adviser waives securities in Affiliated Underwritings in section 12(d)(1)(A) of the Act, except once an investment by a Fund of Funds fees, the benefit of the waiver will be to the extent (i) the Fund, or its passed through to the Investing in the securities of the Fund exceeds the respective Master Fund, acquires Management Company. limit of section 12(d)(1)(A)(i) of the Act, 6. No Fund of Funds or Fund of setting forth from whom the securities securities of another investment Funds Affiliate (except to the extent it were acquired, the identity of the company pursuant to exemptive relief is acting in its capacity as an investment underwriting syndicate’s members, the from the Commission permitting the adviser to a Fund) will cause a Fund, or terms of the purchase, and the Fund, or its respective Master Fund, to its respective Master Fund, to purchase information or materials upon which acquire securities of one or more a security in any Affiliated the Board’s determinations were made. investment companies for short-term Underwriting. 9. Before investing in a Fund in cash management purposes or (ii) the 7. The Board of a Fund, or its excess of the limit in section Fund acquires securities of the Master respective Master Fund, including a 12(d)(1)(A), a Fund of Funds and the Fund pursuant to the Master–Feeder majority of the non-interested Board Trust will execute a FOF Participation Relief. members, will adopt procedures Agreement stating without limitation For the Commission, by the Division of reasonably designed to monitor any that their respective boards of directors Investment Management, under delegated purchases of securities by the Fund, or or trustees and their investment authority. its respective Master Fund, in an advisers, or trustee and Sponsor, as Affiliated Underwriting, once an applicable, understand the terms and Robert W. Errett, investment by a Fund of Funds in the conditions of the order, and agree to Deputy Secretary. securities of the Fund exceeds the limit fulfill their responsibilities under the [FR Doc. 2015–28695 Filed 11–10–15; 8:45 am] of section 12(d)(1)(A)(i) of the Act, order. At the time of its investment in BILLING CODE 8011–01–P including any purchases made directly Shares of a Fund in excess of the limit from an Underwriting Affiliate. The in section 12(d)(1)(A)(i), a Fund of Board will review these purchases Funds will notify the Fund of the periodically, but no less frequently than investment. At such time, the Fund of annually, to determine whether the Funds will also transmit to the Fund a purchases were influenced by the list of the names of each Fund of Funds investment by the Fund of Funds in the Affiliate and Underwriting Affiliate. The Fund. The Board will consider, among Fund of Funds will notify the Fund of other things: (i) Whether the purchases any changes to the list of the names as were consistent with the investment soon as reasonably practicable after a objectives and policies of the Fund, or change occurs. The Fund and the Fund its respective Master Fund; (ii) how the of Funds will maintain and preserve a performance of securities purchased in copy of the order, the FOF Participation an Affiliated Underwriting compares to Agreement, and the list with any the performance of comparable updated information for the duration of

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SECURITIES AND EXCHANGE A. Self-Regulatory Organization's paragraph (a) of [Rule 1004] and require COMMISSION Statement of the Purpose of, and participation by such designated Statutory Basis for, the Proposed Rule members or participants in scheduled [Release No. 34–76367; File No. SR–BOX– Change functional and performance testing of the operation of such plans, in the 2015–35] 1. Purpose manner and frequency specified by the Self-Regulatory Organizations; BOX The Exchange proposes to adopt BOX SCI entity, provided that such frequency Options Exchange LLC; Notice of Rule 2100 (Mandatory Participation in shall not be less than once every 12 Filing and Immediate Effectiveness of Testing of Backup Systems) to establish months.’’ 5 In order to comply with Rule business continuity and disaster a Proposed Rule Change To Adopt 1004 of Regulation SCI, the Exchange recovery plans (‘‘BC/DR plans’’) testing Business Continuity and Disaster proposes to adopt Rule 2100, governing requirements for certain Options Recovery Plans (‘‘BC/DR plans’’) mandatory participation in testing of Participants in connection with Testing Requirements for Certain Exchange backup systems, as described Regulation SCI. Options Participants in Connection below. As adopted by the Commission, First, in paragraph (a) of Rule 2100, With Regulation Systems Compliance Regulation SCI applies to certain self- the Exchange proposes to include and Integrity (‘‘Regulation SCI’’) regulatory organizations (including the language from paragraph (a) of Rule November 5, 2015. Exchange), alternative trading systems 1004 of Regulation SCI to summarize (‘‘ATSs’’), plan processors, and exempt the Exchange’s obligation pursuant to Pursuant to Section 19(b)(1) of the clearing agencies (collectively, ‘‘SCI such rule. Specifically, the Exchange Securities Exchange Act of 1934 entities’’), and will require these SCI proposes to state that ‘‘[p]ursuant to 1 2 (‘‘Act’’), and Rule 19b–4 thereunder, entities to comply with requirements Regulation SCI and with respect to the notice is hereby given that on October with respect to the automated systems Exchange’s business continuity and 26, 2015, BOX Options Exchange LLC central to the performance of their disaster recovery plans, including its (the ‘‘Exchange’’) filed with the regulated activities. Among the backup systems, the Exchange is Securities and Exchange Commission requirements of Regulation SCI is Rule required to establish standards for the (‘‘Commission’’) the proposed rule 1001(a)(2)(v), which requires the designation of Members that the change as described in Items I and II Exchange and other SCI entities to Exchange reasonably determines are, below, which Items have been prepared maintain ‘‘[b]usiness continuity and taken as a whole, the minimum by the self-regulatory organization. The disaster recovery plans that include necessary for the maintenance of fair Commission is publishing this notice to maintaining backup and recovery and orderly markets in the event of the solicit comments on the proposed rule capabilities sufficiently resilient and activation of such plans.’’ The Exchange from interested persons. geographically diverse and that are further proposes that paragraph (a) reasonably designed to achieve next indicate that the ‘‘Exchange has I. Self-Regulatory Organization’s business day resumption of trading and established standards and will designate Statement of the Terms of Substance of two-hour resumption of critical SCI Participants according to those the Proposed Rule Change systems following a wide-scale standards’’ as set forth in the proposed 3 The Exchange proposes to adopt disruption.’’ The Exchange takes pride Rule. In addition, the Exchange business continuity and disaster in the reliability and availability of its proposes to make clear that all Members recovery plans (‘‘BC/DR plans’’) testing systems. Historically, Exchange systems are permitted to connect to the requirements for certain Options have been up and available more than Exchange’s backup systems as well as to 99.9% of the time; yet as a precaution, Participants in connection with participate in testing of such systems. the Exchange has put extensive time Regulation SCI. The text of the proposed Proposed paragraph (a) is consistent and resources toward planning for rule change is available from the with the Commission’s adoption of system failures and already maintains principal office of the Exchange, at the Regulation SCI, which encouraged ‘‘SCI robust BC/DR plans consistent with the Commission’s Public Reference Room entities to permit non-designated Rule. As set forth below, in connection and also on the Exchange’s Internet Web members or participants to participate with Regulation SCI, the Exchange is site at http://boxexchange.com. in the testing of the SCI entity’s BC/DR proposing to require certain Members to plans if they request to do so.’’ 6 II. Self-Regulatory Organization’s participate in testing of the operation of Second, in paragraph (b) of Rule 2100, Statement of the Purpose of, and the Exchange’s BC/DR plans. the Exchange proposes to specify that it Statutory Basis for, the Proposed Rule With respect to an SCI entity’s BC/DR shall designate those BOX Participants Change plans, including its backup systems, that the Exchange reasonably paragraph (a) of Rule 1004 of Regulation determines are, taken as a whole, the In its filing with the Commission, the SCI requires each SCI entity to: minimum necessary for the self-regulatory organization included ‘‘[e]stablish standards for the maintenance of fair and orderly markets statements concerning the purpose of, designation of those members or in the event of the activation of the and basis for, the proposed rule change participants that the SCI entity Exchange’s business continuity and and discussed any comments it received reasonably determines are, taken as a disaster recovery plans (‘‘Designated on the proposed rule change. The text whole, the minimum necessary for the BCP/DR Participants’’). Designated BCP/ of these statements may be examined at maintenance of fair and orderly markets DR Participants will be identified based the places specified in Item IV below. in the event of the activation of such on criteria determined by the Exchange The self-regulatory organization has plans.’’ 4 Paragraph (b) of Rule 1004 and announced via Regulatory Circular, prepared summaries, set forth in further requires each SCI entity to which may include the amount of Sections A, B, and C below, of the most ‘‘[d]esignate members or participants volume transacted by the Participant in significant aspects of such statements. pursuant to the standards established in 5 17 CFR 242.1004(b). 1 15 U.S.C. 78s(b)(1). 3 17 CFR 242.1001(a)(2)(v). 6 See SCI Adopting Release, supra note 4[sic] at 2 17 CFR 240.19b–4. 4 17 CFR 242.1004(a). 72350.

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a class or on the Exchange in general, ‘‘Act’’),7 in general, and Section 6(b)(5) C. Self-Regulatory Organization's operational capacity, trading of the Act,8 in particular, in that it is Statement on Comments on the experience, and historical contribution designed to prevent fraudulent and Proposed Rule Change Received From to fair and orderly markets on the manipulative acts and practices, to Members, Participants, or Others Exchange. Designated BCP/DR promote just and equitable principles of The Exchange has neither solicited Participants will participate in trade, to foster cooperation and nor received comments on the proposed functional and performance testing in coordination with persons engaged in rule change. the manner and frequency specified by facilitating transactions in securities, to the Exchange, which shall not be less remove impediments to and perfect the III. Date of Effectiveness of the than once every 12 months. mechanism of a free and open market Proposed Rule Change and Timing for The Exchange notes that it encourages and a national market system, and, in Commission Action all Participants to connect to the general to protect investors and the The Exchange has filed the proposed Exchange’s backup systems and to public interest. In particular, the rule change pursuant to Section participate in testing of such systems. In proposal will ensure that the 19(b)(3)(A) of the Act 11 and Rule 19b– fact, the Exchange provides connectivity Participants necessary to ensure the 4(f)(6)(iii) thereunder.12 Because the free of charge to all Participants that maintenance of a fair an orderly market proposed rule change does not: (i) connect to Exchange backup systems in are properly designated consistent with Significantly affect the protection of order to help reduce the economic Rule 1004 of Regulation SCI. investors or the public interest; (ii) burden of maintaining connectivity to Specifically, the proposal will adopt impose any significant burden on Exchange backup systems. However, in criteria with respect to the designation competition; and (iii) become operative adopting the requirements of Rule of Participants that are required to prior to 30 days from the date on which 2100(b) the Exchange intends to subject participate in the testing of the it was filed, or such shorter time as the to the Rule only those Participants that Exchange’s BC/DR plans, as well as Commission may designate, if the Exchange believes are necessary to appropriate notification regarding such consistent with the protection of maintain fair and orderly markets at the designation. As set forth in the SCI investors and the public interest, the Exchange. Adopting Release, ‘‘SROs have the proposed rule change has become In addition to paragraphs (a) and (b) authority, and legal responsibility, effective pursuant to Section 19(b)(3)(A) described above, the Exchange also under Section 6 of the Exchange Act, to of the Act and Rule 19b–4(f)(6)(iii) proposes to adopt Interpretive Material adopt and enforce rules (including rules thereunder.13 A proposed rule change IM–2100–1, which would provide to comply with Regulation SCI’s filed under Rule 19b–4(f)(6)(iii) 14 additional detail regarding the notice requirements relating to BC/DR testing) normally does not become operative that will be provided to Participants that applicable to their members or prior to 30 days after the date of the have been designated pursuant to participants that are designed to, among filing. However, pursuant to Rule 19b– subparagraph (b). As proposed, IM– other things, foster cooperation and 4(f)(6)(iii),15 the Commission may 2100–1 would state that Designated coordination with persons engaged in designate a shorter time if such action BCP/DR Participants will be identified regulating, clearing, settling, processing is consistent with the protection of based on criteria determined by the information with respect to, and investors and the public interest. Exchange, consistent with proposed facilitating transactions in securities, to The Exchange has asked the paragraph (b)(1), and announced via remove impediments to and perfect the Commission to waive the 30-day Regulatory Circular. Any changes to the mechanism of a free and open market operative delay so that the proposal may standards by which a market participant and a national market system, and, in become operative immediately upon might be determined to be a Designated general, to protect investors and the filing. The Commission believes that BCP/DR Participant would be applied public interest.’’ 9 The Exchange waiving the 30-day operative delay is prospectively with reasonable advance believes that this proposal is consistent consistent with the protection of notice as announced via Regulatory with such authority and legal investors and the public interest as it Circular. The Exchange would first responsibility. will allow the Exchange to incorporate announce the criteria by which market changes required under Regulation SCI, B. Self-Regulatory Organization's such as establishing standards for participants would be determined to be Statement on Burden on Competition Designated BCP/DR Participants by designating BC/DR participants, prior to November 3, 2015. The Exchange The Exchange does not believe that the November 3, 2015 compliance date. believes the proposed notice the proposed rule change will impose Accordingly, the Commission requirements are necessary to provide any burden on competition not designates the proposed rule change to 16 Participants with proper advance notice necessary or appropriate in furtherance be operative upon filing. in the event they become subject to of the purposes of the Act. In this regard proposed Rule 2100(b). The proposed and as indicated above, the Exchange 2015), 80 FR 65263 (October 20, 2015) (SR–CBOE– timeframes would also provide 2015–088). notes that the proposal is not a 11 15 U.S.C. 78s(b)(3)(A)(iii). Participants with adequate time to competitive proposal but rather is 12 17 CFR 240.19b–4(f)(6). become compliant with such Rule due necessary for the Exchange’s 13 In addition, Rule 19b–4(f)(6) requires a self- to the necessary infrastructure changes compliance with Regulation SCI, and is regulatory organization to give the Commission it may take to connect to the Exchange’s also consistent with a recent filings written notice of its intent to file the proposed rule change at least five business days prior to the date backup systems for a Participant that is 10 submitted by BATS and the CBOE. of filing of the proposed rule change, or such not already connected. shorter time as designated by the Commission. The 7 2. Statutory Basis 15 U.S.C. 78f(b). Exchange has satisfied this requirement. 8 15 U.S.C. 78f(b)(5). 14 17 CFR 240.19b–4(f)(6). The Exchange believes that the 9 See SCI Adopting Release, supra note 4 at 15 17 CFR 240.19b–4(f)(6)(iii). proposal is consistent with the 72350. 16 For purposes only of waiving the 30-day 10 See Securities Exchange Act Release Nos. operative delay, the Commission has also requirements of Section 6(b) of the 76162 (October 15, 2015), 80 FR 63849 (October 21, considered the proposed rule’s impact on Securities Exchange Act of 1934 (the 2015) (SR–BATS–2015–86); 76203 (October 20, Continued

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At any time within 60 days of the received will be posted without change; request a hearing by writing to the filing of the proposed rule change, the the Commission does not edit personal Commission’s Secretary and serving Commission summarily may identifying information from applicants with a copy of the request, temporarily suspend such rule change if submissions. You should submit only personally or by mail. Hearing requests it appears to the Commission that such information that you wish to make should be received by the Commission action is necessary or appropriate in the available publicly. All submissions by 5:30 p.m. on December 1, 2015, and public interest, for the protection of should refer to File Number SR–BOX– should be accompanied by proof of investors, or otherwise in furtherance of 2015–35 and should be submitted on or service on applicants, in the form of an the purposes of the Act. If the before December 3, 2015. affidavit or, for lawyers, a certificate of Commission takes such action, the For the Commission, by the Division of service. Pursuant to rule 0–5 under the Commission shall institute proceedings Trading and Markets, pursuant to delegated Act, hearing requests should state the to determine whether the proposed rule authority.17 nature of the writer’s interest, any facts should be approved or disapproved. Robert W. Errett, bearing upon the desirability of a hearing on the matter, the reason for the IV. Solicitation of Comments Deputy Secretary. [FR Doc. 2015–28687 Filed 11–10–15; 8:45 am] request, and the issues contested. Interested persons are invited to BILLING CODE 8011–01–P Persons who wish to be notified of a submit written data, views and hearing may request notification by arguments concerning the foregoing, writing to the Commission’s Secretary. including whether the proposed rule SECURITIES AND EXCHANGE ADDRESSES: Brent J. Fields, Secretary, change is consistent with the Act. COMMISSION U.S. Securities and Exchange Comments may be submitted by any of Commission, 100 F Street NE., the following methods: [Investment Company Act Release No. 31897; 812–14507] Washington, DC 20549–1090. Electronic Comments Applicants, 1599 Post Road East, • Use the Commission’s Internet Good Hill Partners LP and Good Hill Westport, CT 06880. comment form (http://www.sec.gov/ ETF Trust; Notice of Application FOR FURTHER INFORMATION CONTACT: Kay- Mario Vobis, Senior Counsel, at (202) rules/sro.shtml); or November 6, 2015. • 551–6728, or Mary Kay Frech, Branch Send an email to rule-comments@ AGENCY: Securities and Exchange Chief, at (202) 551–6821 (Division of sec.gov. Please include File Number SR– Commission (‘‘Commission’’). BOX–2015–35 on the subject line. Investment Management, Chief ACTION: Notice of an application for an Counsel’s Office). Paper Comments order under section 6(c) of the SUPPLEMENTARY INFORMATION: Investment Company Act of 1940 The • Send paper comments in triplicate following is a summary of the to Brent J. Fields, Secretary, Securities (‘‘Act’’) for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the application. The complete application and Exchange Commission, 100 F Street may be obtained via the Commission’s NE., Washington, DC 20549–1090. Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an Web site by searching for the file All submissions should refer to File exemption from sections 17(a)(1) and number, or for an applicant using the Number SR–BOX–2015–35. This file (a)(2) of the Act. Company name box, at http:// number should be included on the www.sec.gov/search/search.htm or by subject line if email is used. To help the APPLICANTS: Good Hill Partners LP calling (202) 551–8090. Commission process and review your (‘‘Good Hill Partners’’) and Good Hill Applicants’ Representations comments more efficiently, please use ETF Trust (the ‘‘Trust’’). only one method. 1. The Trust, a business trust SUMMARY OF APPLICATION: Applicants The Commission will post all organized under the laws of request an order that permits: (a) Series comments on the Commission’s Internet Massachusetts, intends to register with of certain open-end management Web site (http://www.sec.gov/rules/ the Commission as an open-end investment companies to issue shares sro.shtml). Copies of the submission, all management investment company. The (‘‘Shares’’) redeemable in large subsequent amendments, all written applicants are requesting relief not only aggregations only (‘‘Creation Units’’); (b) statements with respect to the proposed for the Trust and its initial series, Good secondary market transactions in Shares rule change that are filed with the Hill Short Duration Actively Managed to occur at negotiated market prices; (c) Commission, and all written ETF (‘‘Initial Fund’’), but also with certain series to pay redemption communications relating to the respect to future series of the Trust, and proceeds, under certain circumstances, proposed rule change between the to any registered open-end management more than seven days from the tender of Commission and any person, other than investment companies or series thereof Shares for redemption; and (d) certain those that may be withheld from the that may be created in the future and affiliated persons of the series to deposit public in accordance with the that utilizes active management securities into, and receive securities provisions of 5 U.S.C. 552, will be investment strategies (‘‘Future Funds’’ from, the series in connection with the available for Web site viewing and and collectively with the Initial Fund, purchase and redemption of Creation printing in the Commission’s Public the ‘‘Funds’’).1 Funds may invest in Units. Reference Room, on official business equity securities or fixed income days between the hours of 10:00 a.m. FILING DATES: The application was filed securities traded in the U.S. or non-U.S. and 3:00 p.m., located at 100 F Street on June 30, 2015 and amended on markets or a combination of equity and NE., Washington, DC 20549. Copies of October 16, 2015. such filing also will be available for HEARING OR NOTIFICATION OF HEARING: 1 All entities that currently intend to rely on the inspection and copying at the principal An order granting the requested relief requested order are named as applicants and any will be issued unless the Commission Fund that currently intends to rely on the requested office of the Exchange. All comments order is identified in the application. Any other orders a hearing. Interested persons may entity that relies on the requested order in the efficiency, competition, and capital formation. See future will comply with the terms and conditions 15 U.S.C. 78c(f). 17 17 CFR 200.30–3(a)(12). of the application.

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fixed income securities, including ‘‘to- each Fund Sub-Adviser will be Day,7 the names and quantities of the be-announced transactions’’ (‘‘TBA registered under the Advisers Act or not instruments that constitute the Deposit Transactions’’) 2 and depositary receipts subject to such registration. Instruments and the names and (‘‘Depositary Receipts’’).3 The securities, 3. The Trust will enter into a quantities of the instruments that other assets, and other positions in distribution agreement with one or more constitute the Redemption Instruments which a Fund invests are its ‘‘Portfolio distributors (‘‘Distributor’’). Each will be identical, and these instruments Positions.’’ 4 The Trust currently expects Distributor will be registered under the may be referred to, in the case of either that the Initial Fund’s investment Securities Exchange Act of 1934, as a purchase or redemption, as the objective will be to seek total return by amended (the ‘‘Exchange Act’’), and will ‘‘Creation Basket.’’ In addition, the investing, under normal market act as Distributor and principal Creation Basket will correspond pro rata conditions, at least 80% of its net assets underwriter of the Funds. No to the positions in a Fund’s portfolio Distributor will be affiliated with the in a portfolio of short duration fixed (including cash positions),8 except: (a) income securities. Listing Exchange. The Distributor of any In the case of bonds, for minor 2. Each Fund will (a) be advised by Fund may be an ‘‘affiliated person’’ or differences when it is impossible to Good Hill Partners or an entity an affiliated person of an affiliated controlling, controlled by or under person of the Fund’s Adviser or Fund break up bonds beyond certain common control with Good Hill Sub-Adviser. minimum sizes needed for transfer and Partners (each such entity and any 4. Shares of each Fund will be settlement; (b) for minor differences successor thereto, an ‘‘Adviser’’) 5 and purchased from the Trust only in large when rounding is necessary to eliminate (b) comply with the terms and aggregations of a specified number fractional shares or lots that are not conditions stated in the application. referred to as ‘‘Creation Units.’’ Creation tradeable round lots; 9 or (c) TBA Good Hill Partners is a Delaware limited Units may be purchased through orders Transactions, short positions, and other partnership and is registered as an placed with the Distributor by or positions that cannot be transferred in investment adviser under the through an ‘‘Authorized Participant’’ kind 10 will be excluded from the Investment Advisers Act of 1940 (the which is either (a) a broker-dealer or Creation Basket.11 If there is a difference ‘‘Advisers Act’’). Any other Adviser to other participant in the Continuous Net between the net asset value (‘‘NAV’’) a Fund will be registered under the Settlement (‘‘CNS’’) System of the attributable to a Creation Unit and the Advisers Act. The Adviser may retain National Securities Clearing Corporation aggregate market value of the Creation sub-advisers (each, a ‘‘Fund Sub- (‘‘NSCC’’), a clearing agency that is Basket exchanged for the Creation Unit, Adviser’’) in connection with the Funds; registered with the Commission, or (b) the party conveying instruments with a participant (‘‘DTC Participant’’) in the the lower value will also pay to the 2 A TBA Transaction is a method of trading Depository Trust Company (‘‘DTC’’), other an amount in cash equal to that mortgage-backed securities. In a TBA Transaction, the buyer and seller agree on general trade and which in either case has executed difference (the ‘‘Balancing Amount’’). a participant agreement with the parameters such as agency, settlement date, par 6. Purchases and redemptions of amount and price. The actual pools delivered Distributor with respect to the creation Creation Units may be made in whole or generally are determined two days prior to the and redemption of Creation Units. settlement date. in part on a cash basis, rather than in Purchases and redemptions of the 3 Depositary Receipts include American Funds’ Creation Units will be processed kind, solely under the following Depositary Receipts (‘‘ADRs’’) and Global circumstances: (a) To the extent there is Depositary Receipts (‘‘GDRs’’). With respect to either through an enhanced clearing ADRs, the depositary is typically a U.S. financial process available to DTC Participants a Balancing Amount, as described institution and the underlying securities are issued that are also participants in the CNS above; (b) if, on a given Business Day, by a foreign issuer. The ADR is registered under the a Fund announces before the open of Securities Act of 1933 (‘‘Securities Act’’) on Form system of the NSCC (the ‘‘NSCC F–6. ADR trades occur either on a national Process’’) or through a manual clearing trading that all purchases, all securities exchange as defined in section 2(a)(26) of process that is available to all DTC redemptions or all purchases and the Act (‘‘Listing Exchange’’) or off-exchange. redemptions on that day will be made Financial Industry Regulatory Authority Rule 6620 Participants (the ‘‘DTC Process’’). requires all off-exchange transactions in ADRs to be 5. In order to keep costs low and entirely in cash; (c) if, upon receiving a reported within 90 seconds and ADR trade reports permit each Fund to be as fully invested purchase or redemption order from an to be disseminated on a real-time basis. With as possible, Shares will be purchased Authorized Participant, a Fund respect to GDRs, the depositary may be a foreign or determines to require the purchase or a U.S. entity, and the underlying securities may and redeemed in Creation Units and have a foreign or a U.S. issuer. All GDRs are generally on an in-kind basis. redemption, as applicable, to be made sponsored and trade on a foreign exchange. No Accordingly, except where the purchase affiliated persons of applicants, any Adviser (as or redemption will include cash under Redemption Instruments that are restricted defined below), Fund Sub-Adviser (as defined the limited circumstances specified securities eligible for resale pursuant to Rule 144A below), or Fund will serve as the depositary for any under the Securities Act, the Funds will comply Depositary Receipts held by a Fund. A Fund will below, purchasers will be required to with the conditions of Rule 144A. not invest in any Depositary Receipts that the purchase Creation Units by making an 7 Each Fund will sell and redeem Creation Units Adviser (or, if applicable, the Fund Sub-Adviser) in-kind deposit of specified instruments on any day the Fund is open, including as required deems to be illiquid or for which pricing information is not readily available. (‘‘Deposit Instruments’’), and by section 22(e) of the Act (each, a ‘‘Business Day’’). 8 4 If a Fund invests in derivatives: (a) The Fund’s shareholders redeeming their Shares The portfolio used for this purpose will be the board of trustees periodically will review and will receive an in-kind transfer of same portfolio used to calculate the Fund’s NAV for approve (i) the Fund’s use of derivatives and (ii) that Business Day. specified instruments (‘‘Redemption 9 A tradeable round lot for a security will be the how the Fund’s investment adviser assesses and 6 manages risk with respect to the Fund’s use of Instruments’’). On any given Business standard unit of trading in that particular type of derivatives; and (b) the Fund’s disclosure of its use security in its primary market. of derivatives in its offering documents and 6 The Funds must comply with the federal 10 This includes instruments that can be periodic reports will be consistent with relevant securities laws in accepting Deposit Instruments transferred in kind only with the consent of the Commission and staff guidance. and satisfying redemptions with Redemption original counterparty to the extent the Fund does 5 For the purposes of the requested order, a Instruments, including that the Deposit Instruments not intend to seek such consents. ‘‘successor’’ is limited to an entity or entities that and Redemption Instruments are sold in 11 Because these instruments will be excluded result from a reorganization into another transactions that would be exempt from registration from the Creation Basket, their value will be jurisdiction or a change in the type of business under the Securities Act. In accepting Deposit reflected in the determination of the Balancing organization. Instruments and satisfying redemptions with Amount (defined below).

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entirely in cash; 12 (d) if, on a given estimated NAV, which will be the value institutional investors and retail Business Day, a Fund requires all of the Fund’s Portfolio Positions, on a investors.16 Applicants state that Authorized Participants purchasing or per Share basis. because the market price of Creation redeeming Shares on that day to deposit 8. An investor purchasing or Units will be disciplined by arbitrage or receive (as applicable) cash in lieu of redeeming a Creation Unit will be opportunities, investors should be able some or all of the Deposit Instruments charged a fee (‘‘Transaction Fee’’) to to sell Shares in the secondary market or Redemption Instruments, protect continuing shareholders of the at prices that do not vary materially respectively, solely because: (i) Such Funds from the dilutive costs associated from their NAV. instruments are not eligible for transfer with the purchase and redemption of 11. Neither the Trust nor any Fund through either the NSCC Process or DTC Creation Units.14 The Distributor will will be advertised or marketed as a Process; or (ii) in the case of Funds deliver a confirmation and Fund conventional open-end investment holding non-U.S. investments (‘‘Global prospectus (‘‘Prospectus’’) to the company or mutual fund. Instead, each Funds’’), such instruments are not purchaser. In addition, the Distributor Fund will be marketed as an ‘‘actively- eligible for trading due to local trading will maintain records of both the orders managed exchange-traded fund.’’ Any restrictions, local restrictions on placed with it and the confirmations of advertising material that describes the securities transfers or other similar acceptance furnished by it. features of obtaining, buying or selling circumstances; or (e) if a Fund permits 9. Beneficial owners of Shares may Creation Units, or buying or selling an Authorized Participant to deposit or sell their Shares in the secondary Shares on the Listing Exchange, or receive (as applicable) cash in lieu of market. Shares will be listed on a where there is reference to some or all of the Deposit Instruments Listing Exchange and traded in the redeemability, will prominently or Redemption Instruments, secondary market in the same manner as disclose that Shares are not individually respectively, solely because: (i) Such other equity securities. Applicants state redeemable and that owners of Shares instruments are, in the case of the that it is expected that one or more may acquire Shares from a Fund and purchase of a Creation Unit, not specialists or market makers tender those Shares for redemption to a available in sufficient quantity; (ii) such (collectively, ‘‘Exchange Market Fund in Creation Units only. instruments are not eligible for trading Makers’’) will be assigned for the Shares 12. The Funds’ Web site, which will by an Authorized Participant or the of each Fund. The price of Shares be publicly available prior to the public investor on whose behalf the trading on the Listing Exchange will be offering of Shares, will include, or will Authorized Participant is acting; or (iii) based on a current bid/offer market. include links to, each Fund’s current a holder of Shares of a Fund holding Transactions involving the sale of Prospectus which may be downloaded. non-U.S. investments would be subject Shares on the Listing Exchange will be That Web site, which will be publicly to unfavorable income tax treatment if subject to customary brokerage available at no charge, will also contain, the holder receives redemption commissions and charges. on a per Share basis for each Fund, the 13 proceeds in kind. 10. Applicants expect that purchasers prior Business Day’s NAV and the 7. Each Business Day, before the open of Creation Units will include market closing price or the mid-point of of trading on the Listing Exchange, each arbitrageurs and that Exchange Market the bid/ask spread at the time of Fund will cause to be published through Makers, acting in their unique role to calculation of such NAV (the ‘‘Bid/Ask the NSCC the names and quantities of provide a fair and orderly secondary Price’’), and a calculation of the the instruments comprising the Creation market for Shares, also may purchase premium or discount of the market Basket, as well as the estimated Creation Units for use in their own closing price or Bid/Ask Price against Balancing Amount (if any), for that day. such NAV. On each Business Day, market making activities.15 Applicants The published Creation Basket will before commencement of trading in expect that secondary market apply until a new Creation Basket is Shares on the Listing Exchange, each purchasers of Shares will include both announced on the following Business Fund will also disclose on its Web site Day, and there will be no intra-day 14 Where a Fund permits an in-kind purchaser to the identities and quantities of its changes to the Creation Basket except to deposit cash in lieu of depositing one or more Portfolio Positions held by the Fund correct errors in the published Creation Deposit Instruments, the purchaser may be assessed that will form the basis for the Fund’s Basket. The Listing Exchange or a major a higher Transaction Fee to offset the cost to the calculation of NAV at the end of the market data vendor will disseminate Fund of buying those particular Deposit 17 Instruments. In all cases, such Transaction Fees will Business Day. every 15 seconds throughout the trading be limited in accordance with requirements of the Applicants’ Legal Analysis day an amount representing the Fund’s Commission applicable to open-end management investment companies offering redeemable 1. Applicants request an order under 12 In determining whether a particular Fund will securities. section 6(c) of the Act for an exemption sell or redeem Creation Units entirely on a cash or 15 If Shares are listed on The NASDAQ Stock from sections 2(a)(32), 5(a)(1), 22(d) and in-kind basis (whether for a given day or a given Market LLC (‘‘Nasdaq’’) or a similar electronic order), the key consideration will be the benefit that Listing Exchange (including NYSE Arca), one or 22(e) of the Act and rule 22c–1 under would accrue to the Fund and its investors. For more member firms of that Listing Exchange will the Act, and under sections 6(c) and instance, in bond transactions, the Adviser may be act as Exchange Market Maker and maintain a 17(b) of the Act for an exemption from able to obtain better execution than Share market for Shares trading on that Listing Exchange. sections 17(a)(1) and (a)(2) of the Act. purchasers because of the Adviser’s size, experience On Nasdaq, no particular Exchange Market Maker and potentially stronger relationships in the fixed would be contractually obligated to make a market income markets. Purchases of Creation Units either in Shares. However, the listing requirements on 16 Shares will be registered in book-entry form on an all cash basis or in kind are expected to be Nasdaq, for example, stipulate that at least two only. DTC or its nominee will be the record or neutral to the Funds from a tax perspective. In Exchange Market Makers must be registered in registered owner of all outstanding Shares. DTC or contrast, cash redemptions typically require selling Shares to maintain a listing. In addition, on Nasdaq DTC Participants will maintain records of beneficial portfolio holdings, which may result in adverse tax and NYSE Arca, registered Exchange Market Makers ownership of Shares. consequences for the remaining Fund shareholders are required to make a continuous two-sided market 17 Under accounting procedures followed by the that would not occur with an in-kind redemption. or subject themselves to regulatory sanctions. No Funds, trades made on the prior Business Day (‘‘T’’) As a result, tax considerations may warrant in-kind Exchange Market Maker will be an affiliated person will be booked and reflected in NAV on the current redemptions. or an affiliated person of an affiliated person, of the Business Day (‘‘T+1’’). Accordingly, the Funds will 13 A ‘‘custom order’’ is any purchase or Funds, except within the meaning of section be able to disclose at the beginning of the Business redemption of Shares made in whole or in part on 2(a)(3)(A) or (C) of the Act due solely to ownership Day the portfolio that will form the basis for the a cash basis in reliance on clause (e)(i) or (e)(ii). of Shares as discussed below. NAV calculation at the end of the Business Day.

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2. Section 6(c) of the Act provides that negotiated prices, rather than at the delivery process of up to 15 calendar the Commission may exempt any current offering price described in the days. Applicants therefore request relief person, security or transaction, or any Fund’s Prospectus. Thus, purchases and from section 22(e) in order for each class of persons, securities or sales of Shares in the secondary market Global Fund to provide payment or transactions, from any provision of the will not comply with section 22(d) of satisfaction of redemptions within the Act, if and to the extent that such the Act and rule 22c–1 under the Act. maximum number of calendar days exemption is necessary or appropriate Applicants request an exemption under required for such payment or in the public interest and consistent section 6(c) from these provisions. satisfaction in the principal local with the protection of investors and the 5. Applicants assert that the concerns market(s) where transactions in its purposes fairly intended by the policy sought to be addressed by section 22(d) Portfolio Positions customarily clear and provisions of the Act. Section 17(b) of the Act and rule 22c–1 under the Act and settle, but in any event, within a of the Act authorizes the Commission to with respect to pricing are equally period not to exceed fifteen calendar exempt a proposed transaction from satisfied by the proposed method of days.18 section 17(a) of the Act if evidence pricing Shares. Applicants maintain that 8. Applicants submit that Congress establishes that the terms of the while there is little legislative history adopted section 22(e) to prevent proposed transaction, including the regarding section 22(d), its provisions, unreasonable, undisclosed or consideration to be paid or received, are as well as those of rule 22c–1, appear to unforeseen delays in the actual payment reasonable and fair and do not involve have been intended (a) to prevent of redemption proceeds. Applicants overreaching on the part of any person dilution caused by certain riskless- state that allowing redemption concerned, and the proposed trading schemes by principal payments for Creation Units of a Global transaction is consistent with the underwriters and contract dealers, (b) to Fund to be made within 15 calendar policies of the registered investment prevent unjust discrimination or days would not be inconsistent with the company and the general provisions of preferential treatment among buyers, spirit and intent of section 22(e).19 the Act. and (c) to ensure an orderly distribution Applicants state that each Global Fund’s of shares by eliminating price Sections 5(a)(1) and 2(a)(32) of the Act statement of additional information competition from brokers offering shares (‘‘SAI’’) will disclose those local 3. Section 5(a)(1) of the Act defines an at less than the published sales price holidays (over the period of at least one ‘‘open-end company’’ as a management and repurchasing shares at more than year following the date of the SAI), if investment company that is offering for the published redemption price. any, that are expected to prevent the sale or has outstanding any redeemable 6. Applicants state that (a) secondary delivery of redemption proceeds in security of which it is the issuer. market transactions in Shares would not seven calendar days and the maximum Section 2(a)(32) of the Act defines a cause dilution for owners of such Shares number of days, up to 15 calendar days, redeemable security as any security, because such transactions do not needed to deliver the proceeds for that other than short-term paper, under the involve the Trust or Funds as parties, Global Fund. Applicants are not seeking terms of which the holder, upon its and (b) to the extent different prices relief from section 22(e) with respect to presentation to the issuer, is entitled to exist during a given trading day, or from Global Funds that do not effect receive approximately a proportionate day to day, such variances occur as a redemptions of Creation Units in kind. share of the issuer’s current net assets, result of third-party market forces, such or the cash equivalent. Applicants as supply and demand. Therefore, Sections 17(a)(1) and (2) of the Act request an order to permit the Trust to applicants assert that secondary market 9. Section 17(a)(1) and (2) of the Act register as an open-end management transactions in Shares will not lead to generally prohibit an affiliated person of investment company and redeem Shares discrimination or preferential treatment a registered investment company, or an in Creation Units only. Applicants state among purchasers. Finally, applicants affiliated person of such a person that each investor is entitled to purchase contend that the proposed distribution (‘‘second tier affiliate’’), from selling any or redeem Creation Units rather than system will be orderly because arbitrage security to or purchasing any security trade the individual Shares in the activity will ensure that the difference from the company. Section 2(a)(3) of the secondary market. Applicants further between the market price of Shares and Act defines ‘‘affiliated person’’ to state that because of the arbitrage their NAV remains immaterial. include any person directly or indirectly possibilities created by the Section 22(e) owning, controlling, or holding with redeemability of Creation Units, it is power to vote 5% or more of the expected that the market price of an 7. Section 22(e) of the Act generally prohibits a registered investment outstanding voting securities of the individual Share will not vary other person and any person directly or materially from its NAV. company from suspending the right of redemption or postponing the date of indirectly controlling, controlled by, or Section 22(d) of the Act and Rule 22c± payment of redemption proceeds for under common control with, the other 1 under the Act more than seven days after the tender of person. Section 2(a)(9) of the Act defines ‘‘control’’ of a fund as ‘‘the 4. Section 22(d) of the Act, among a security for redemption. Applicants power to exercise a controlling other things, prohibits a dealer from observe that the settlement of influence over the management or selling a redeemable security, which is redemptions of Creation Units of Global policies’’ of the fund and provides that currently being offered to the public by Funds will be contingent not only on a control relationship will be presumed or through a principal underwriter, the settlement cycle of the U.S. except at a current public offering price securities markets but also on the 18 Applicants acknowledge that no relief obtained described in the prospectus. Rule 22c– delivery cycles in foreign markets in from the requirements of section 22(e) will affect 1 under the Act generally requires that which those Funds invest. Applicants any obligations that they may otherwise have under a dealer selling, redeeming, or assert that, under certain circumstances, rule 15c6–1 under the Exchange Act, which repurchasing a redeemable security do the delivery cycles for transferring requires that most securities transactions be settled within three business days of the trade date. so only at a price based on its NAV. Portfolio Positions to redeeming 19 Certain countries in which a Global Fund may Applicants state that secondary market investors, coupled with local market invest have historically had settlement periods of trading in Shares will take place at holiday schedules, may require a up to 15 calendar days.

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where one person owns more than 25% end investment company or a mutual sections 6(c) and 17(b) of the Act for an of another person’s voting securities. fund. Any advertising material that exemption from sections 17(a)(1) and The Funds may be deemed to be describes the purchase or sale of 17(a)(2) of the Act, and under section controlled by an Adviser and hence Creation Units or refers to redeemability 12(d)(1)(J) for an exemption from affiliated persons of each other. In will prominently disclose that the sections 12(d)(1)(A) and 12(d)(1)(B) of addition, the Funds may be deemed to Shares are not individually redeemable the Act. be under common control with any and that owners of the Shares may other registered investment company (or acquire those Shares from the Fund and Summary of Application: Applicants series thereof) advised by an Adviser (an tender those Shares for redemption to request an order that would permit (a) ‘‘Affiliated Fund’’). the Fund in Creation Units only. series of certain open-end management 10. Applicants request an exemption 3. The Web site for the Funds, which investment companies to issue shares from section 17(a) under sections 6(c) is and will be publicly accessible at no (‘‘Shares’’) redeemable in large and 17(b) to permit in-kind purchases charge, will contain on a per Share aggregations only (‘‘Creation Units’’); (b) and redemptions of Creation Units from basis, for each Fund, the prior Business secondary market transactions in Shares to be effected at negotiated market the Funds by persons that are affiliated Day’s NAV and the market closing price prices rather than at net asset value persons or second tier affiliates of the or Bid/Ask Price, and a calculation of (‘‘NAV’’); (c) certain series to pay Funds solely by virtue of one or more the premium or discount of the market redemption proceeds, under certain of the following: (a) Holding 5% or closing price or Bid/Ask Price against circumstances, more than seven days more, or more than 25%, of the such NAV. after the tender of Shares for outstanding Shares of one or more 4. On each Business Day, before redemption; (d) certain affiliated Funds; (b) an affiliation with a person commencement of trading in Shares on persons of the series to deposit with an ownership interest described in the Listing Exchange, the Fund will securities into, and receive securities (a); or (c) holding 5% or more, or more disclose on its Web site the identities from, the series in connection with the than 25%, of the shares of one or more and quantities of the Portfolio Positions purchase and redemption of Creation Affiliated Funds. held by the Fund that will form the Units; (e) certain registered management 11. Applicants assert that no useful basis for the Fund’s calculation of NAV purpose would be served by prohibiting investment companies and unit at the end of the Business Day. investment trusts outside of the same the affiliated persons described above 5. The Adviser or any Fund Sub- group of investment companies as the from making in-kind purchases or in- Adviser, directly or indirectly, will not kind redemptions of Shares of a Fund in series to acquire Shares; and (f) certain cause any Authorized Participant (or series to perform creations and Creation Units. Both the deposit any investor on whose behalf an procedures for in-kind purchases of redemptions of Creation Units in-kind Authorized Participant may transact in a master-feeder structure. Creation Units and the redemption with the Fund) to acquire any Deposit procedures for in-kind redemptions will Applicants: Pointbreak Advisers LLC Instrument for the Fund through a (formerly, BetaClone Advisers LLC) (the be effected in exactly the same manner transaction in which the Fund could not for all purchases and redemptions. The ‘‘Initial Adviser’’), Pointbreak ETF Trust engage directly. (formerly, BetaClone ETF Trust) (the valuation of the Deposit Instruments 6. The requested relief to permit ETF and Redemption Instruments will be ‘‘Trust’’), and ALPS Distributors, Inc. operations will expire on the effective (the ‘‘Initial Distributor’’). made in the same manner, and in the date of any Commission rule under the same manner as the Fund’s Portfolio Filing Dates: The application was Act that provides relief permitting the filed on June 29, 2015, and amended on Positions, regardless of the identity of operation of actively managed the purchaser or redeemer. Except with October 15, 2015. exchange-traded funds. Hearing or Notification of Hearing: An respect to cash determined in order granting the requested relief will accordance with the procedures For the Commission, by the Division of Investment Management, under delegated be issued unless the Commission orders described in section I.G.1. of the authority. a hearing. Interested persons may application, Deposit Instruments and Brent J. Fields, request a hearing by writing to the Redemption Instruments will be the Commission’s Secretary and serving same for all purchasers and redeemers. Secretary. applicants with a copy of the request, Therefore, applicants state that the in- [FR Doc. 2015–28796 Filed 11–10–15; 8:45 am] personally or by mail. Hearing requests kind purchases and redemptions will BILLING CODE 8011–01–P should be received by the Commission afford no opportunity for the specified by 5:30 p.m. on November 30, 2015, and affiliated persons of a Fund to effect a should be accompanied by proof of transaction detrimental to other holders SECURITIES AND EXCHANGE service on applicants, in the form of an of Shares of that Fund. Applicants do COMMISSION affidavit, or for lawyers, a certificate of not believe that in-kind purchases and [Investment Company Act Release No. service. Pursuant to rule 0–5 under the redemptions will result in abusive self- 31894; File No. 812–14499] Act, hearing requests should state the dealing or overreaching of the Fund. Pointbreak Advisers LLC, et al.; Notice nature of the writer’s interest, any facts Applicant’s Conditions of Application bearing upon the desirability of a Applicants agree that any order of the hearing on the matter, the reason for the Commission granting the requested November 5, 2015. request, and the issues contested. relief will be subject to the following AGENCY: Securities and Exchange Persons who wish to be notified of a conditions: Commission (‘‘Commission’’). hearing may request notification by 1. As long as the Funds operate in ACTION: Notice of an application for an writing to the Commission’s Secretary. reliance on the requested order, the order under section 6(c) of the ADDRESSES: The Commission: Secretary, Shares of the Funds will be listed on a Investment Company Act of 1940 (the U.S. Securities and Exchange Listing Exchange. ‘‘Act’’) for an exemption from sections Commission, 100 F Street NE., 2. Neither the Trust nor any Fund will 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Washington, DC 20549–1090; be advertised or marketed as an open- Act and rule 22c–1 under the Act, under Applicants: The Initial Adviser and the

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Trust, P.O. Box 347312, San Francisco, the Initial Adviser or an entity 7. Applicants represent that each CA 94134; The Distributor, 1290 controlling, controlled by, or under Fund, or its respective Master Fund, Broadway, Suite 1100, Denver, CO common control with the Initial Adviser will invest at least 80% of its assets, 80203. (each, an ‘‘Adviser’’) and (b) comply exclusive of collateral held from FOR FURTHER INFORMATION CONTACT: Kyle with the terms and conditions of the securities lending, in the component R. Ahlgren, Senior Counsel at (202) application. The Initial Funds and securities of its respective Underlying Future Funds, together, are the Index (‘‘Component Securities’’) and 551–6857, or Holly L. Hunter-Ceci, 1 3 Branch Chief, at (202) 551–6825 ‘‘Funds.’’ TBA Transactions, and in the case of 5. Applicants state that a Fund may (Division of Investment Management, Foreign Funds, Component Securities operate as a feeder fund in a master- 4 Chief Counsel’s Office). and Depositary Receipts representing feeder structure (‘‘Feeder Fund’’). Component Securities. Each Fund, or its SUPPLEMENTARY INFORMATION: The Applicants request that the order permit respective Master Fund, may also invest following is a summary of the a Feeder Fund to acquire shares of up to 20% of its assets in certain index application. The complete application another registered investment company futures, options, options on index may be obtained via the Commission’s in the same group of investment futures, swap contracts or other Web site by searching for the file companies having substantially the derivatives, as related to its respective number, or for an applicant using the same investment objectives as the Underlying Index and its Component Company name box, at http:// Feeder Fund (‘‘Master Fund’’) beyond Securities, cash and cash equivalents, www.sec.gov/search/search.htm or by the limitations in section 12(d)(1)(A) of other investment companies, as well as calling (202) 551–8090. the Act and permit the Master Fund, in securities and other instruments not Applicants’ Representations and any principal underwriter for the included in its Underlying Index but Master Fund, to sell shares of the Master which the applicable Adviser believes 1. The Trust is organized as a Fund to the Feeder Fund beyond the will help the Fund, or its respective Delaware statutory trust. The Trust is limitations in section 12(d)(1)(B) of the Master Fund, track its Underlying registered under the Act as a series Act (‘‘Master-Feeder Relief’’). Index. A Fund may also engage in short open-end management investment Applicants may structure certain Feeder sales in accordance with its investment company. Funds to generate economies of scale objective. 2. The Initial Adviser is registered and incur lower overhead costs.2 There 8. Future Funds may seek to track with the Commission as an investment would be no ability by Fund Underlying Indexes constructed using adviser under the Investment Advisers shareholders to exchange Shares of 130/30 investment strategies (‘‘130/30 Act of 1940 (the ‘‘Advisers Act’’) and Feeder Funds for shares of another Funds’’) or other long/short investment will be the investment adviser to feeder series of the Master Fund. strategies (‘‘Long/Short Funds’’). Each Pointbreak Buyback Index Fund (the 6. Each Fund, or its respective Master Long/Short Fund will establish (i) ‘‘Initial Fund’’). Any other Adviser Fund, will hold certain securities, Exposures equal to approximately 100% (defined below) will also be registered currencies, other assets and other of the long positions specified by the as an investment adviser under the investment positions (‘‘Portfolio Long/Short Index 5 and (ii) exposures Advisers Act. Each Adviser may enter Holdings’’) selected to correspond equal to approximately 100% of the into sub-advisory agreements with one generally to the performance of its short positions specified by the Long/ or more investment advisers to act as Underlying Index. Certain of the Funds Short Index. Each 130/30 Fund will sub-advisers to particular Funds, or will be based on Underlying Indexes establish: (i) Exposures to long positions their respective Master Funds, (each, a which will be comprised of equity and/ in Component Securities equal in value ‘‘Sub-Adviser’’). Any Sub-Adviser will or fixed income securities issued by one to approximately 130% of total net either be registered under the Advisers or more of the following categories of assets; and (ii) exposures to short Act or will not be required to register issuers: (i) Domestic issuers and (ii) positions in Component Securities equal thereunder. non-domestic issuers meeting the 3. The distributor for the Initial Funds requirements for trading in U.S. 3 A ‘‘to-be-announced transaction’’ or ‘‘TBA will act as distributor and principal markets. Other Funds will be based on Transaction’’ is a method of trading mortgage- underwriter of one or more of the Underlying Indexes that will be backed securities. In a TBA Transaction, the buyer Funds. The distributor of any Fund may comprised solely of foreign and and seller agree upon general trade parameters such as agency, settlement date, par amount and price. be an affiliated person, as defined in domestic or solely foreign equity and/or The actual pools delivered generally are determined section 2(a)(3) of the Act (‘‘Affiliated fixed income securities (‘‘Foreign two days prior to settlement date. Person’’), or an affiliated person of an Funds’’). 4 Depositary receipts representing foreign Affiliated Person (‘‘Second-Tier securities (‘‘Depositary Receipts’’) include American Depositary Receipts and Global Affiliate’’), of that Fund’s Adviser and/ 1 Applicants represent that all existing entities Depositary Receipts. The Funds, or their respective or Sub-Advisers. No distributor will be that intend to rely on the requested order have been named as applicants, and that any other existing or Master Funds, may invest in Depositary Receipts affiliated with any Exchange (defined future entity that subsequently relies on the order representing foreign securities in which they seek below). will comply with the terms and conditions of the to invest. Depositary Receipts are typically issued 4. Applicants request that the order order. Applicants acknowledge that a Fund of by a financial institution (a ‘‘depositary bank’’) and evidence ownership interests in a security or a pool apply to the Initial Fund and any Funds (as defined below) may rely on the order only to invest in Funds and not in any other of securities that have been deposited with the additional series of the Trust, and any registered investment company. depositary bank. Applicants represent that a Fund, other open-end management investment 2 Applicants acknowledge that operating in a or its respective Master Fund, will not invest in any company or series thereof, that may be master-feeder structure could also impose costs on Depositary Receipts that the Adviser or any Sub- Adviser deems to be illiquid or for which pricing created in the future that operate as an a Feeder Fund and reduce its tax efficiency. Applicants represent that the Feeder Fund’s Board information is not readily available, and that no exchanged-traded fund (‘‘ETF’’) and that will consider any such potential disadvantages affiliated person of a Fund, the Adviser or any Sub- track a specified index comprised of against the benefits of economies of scale and other Adviser will serve as the depositary bank for any domestic or foreign equity and/or fixed benefits of operating within a master-feeder Depositary Receipts held by a Fund, or its respective Master Fund. income securities (each, an ‘‘Underlying structure. In a master-feeder structure, the Master Fund—rather than the Feeder Fund—would 5 Underlying Indexes that include both long and Index’’) (together, the ‘‘Future Funds’’). generally invest its portfolio in compliance with the short positions in securities are referred to as Any Future Fund will (a) be advised by requested order. ‘‘Long/Short Indexes.’’

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in value to approximately 30% of total ‘‘Self-Indexing Fund’’ is a Fund for will form the basis for the Self-Indexing net assets. At the end of each Business which an Affiliated Person, or a Second- Fund’s calculation of NAV at the end of Day, the applicable Adviser for each Tier Affiliate, of the Trust or a Fund, of the Business Day. Applicants believe Long/Short Fund and 130/30 Fund will the Advisers, of any Sub-Adviser to or that requiring Self-Indexing Funds, and provide full portfolio transparency on promoter of a Fund, or of the Distributor their respective Master Funds, to its Web site (‘‘Web site’’) by making (each, an ‘‘Affiliated Index Provider’’) maintain full portfolio transparency will available the identities and quantities of will serve as the Index Provider. In the provide an effective alternative the Portfolio Holdings. In addition, with case of Self-Indexing Funds, an mechanism for addressing any such respect to each Self-Indexing Fund Affiliated Index Provider will create a potential conflicts of interest. (defined below), Long/Short Fund and proprietary, rules-based methodology to 13. Applicants do not believe the 130/30 Fund, the Web site will contain, create Underlying Indexes (each an potential for conflicts of interest raised each Business Day before the ‘‘Affiliated Index’’).8 Except with by an Adviser’s use of the Underlying commencement of trading of Shares on respect to the Self-Indexing Funds, no Indexes in connection with the the Exchange (defined below),6 the Index Provider is or will be an Affiliated management of the Self-Indexing Funds, identities and quantities of the portfolio Person, or a Second-Tier Affiliate, of the their respective Master Funds, and the securities and other assets held by each Trust or a Fund, of an Adviser, of any Affiliated Accounts will be substantially such Fund, or its respective Master Sub-Adviser to or promoter of a Fund, different from the potential conflicts Fund, that will form the basis for such or of the Distributor. presented by an adviser managing two Fund’s calculation of NAV at the end of 11. Applicants recognize that Self- or more registered funds. Applicants the Business Day. The information Indexing Funds could raise concerns contend that both the Act and the provided on the Web site will be regarding the potential ability of the Advisers Act contain various formatted to be reader-friendly. Affiliated Index Provider to manipulate protections to address conflicts of 9. A Fund, or its respective Master the Underlying Index to the benefit or interest where an adviser is managing Fund, will utilize either a replication or detriment of the Self-Indexing Fund. two or more registered funds and these representative sampling strategy to track Applicants further recognize the protections will also help address these its Underlying Index. A Fund, or its potential for conflicts that may arise conflicts with respect to the Self- 9 respective Master Fund, using a with respect to the personal trading Indexing Funds. replication strategy will invest in the activity of personnel of the Affiliated 14. Each Adviser and any Sub- Component Securities in its Underlying Index Provider who may have access to Adviser has adopted or will adopt, Index in the same approximate or knowledge of changes to an pursuant to Rule 206(4)–7 under the proportions as in such Underlying Underlying Index’s composition Advisers Act, written policies and Index. A Fund, or its respective Master methodology or the constituent procedures designed to prevent violations of the Advisers Act and the Fund, using a representative sampling securities in an Underlying Index prior rules thereunder. These include policies strategy will hold some, but not to the time that information is publicly and procedures designed to minimize necessarily all of the Component disseminated. potential conflicts of interest among the Securities in its Underlying Index. 12. Applicants propose that each day Self-Indexing Funds, their respective Applicants state that a Fund, or its that the NYSE, the national securities Master Funds, and the Affiliated respective Master Fund, using a exchange (as defined in section 2(a)(26) Accounts, such as cross trading policies, representative sampling strategy will of the Act) (an ‘‘Exchange’’) on which as well as those designed to ensure the not be expected to track the the Fund’s Shares are primarily listed equitable allocation of portfolio performance of its Underlying Index (‘‘Listing Exchange’’) are open for transactions and brokerage with the same degree of accuracy as business, including any day that a Self- Indexing Fund is required to be open commissions. In addition, the Initial would an investment vehicle that Adviser has adopted policies and invested in every Component Security under section 22(e) of the Act (a ‘‘Business Day’’), each Self-Indexing procedures as required under section of the Underlying Index with the same 204A of the Advisers Act, which are weighting as the Underlying Index. Fund will post on its Web site, before commencement of trading of Shares on reasonably designed in light of the Applicants expect that the returns of nature of its business to prevent the each Fund will have an annual tracking the Listing Exchange, the identities and quantities of the Portfolio Holdings that misuse, in violation of the Advisers Act error of less than 5% relative to its or the Exchange Act or the rules Underlying Index. Adviser) must provide the use of the Underlying thereunder, of material non-public 10. Each Fund will be entitled to use Indexes and related intellectual property at no cost information by the Adviser or an its Underlying Index pursuant to either to the Trust and the Self-Indexing Funds. associated person (‘‘Inside Information a licensing agreement with the entity 8 The Affiliated Indexes may be made available to Policy’’). Any other Adviser and/or Sub- that compiles, creates, sponsors or registered investment companies, as well as separately managed accounts of institutional Adviser will be required to adopt and maintains an Underlying Index (each, investors and privately offered funds that are not maintain a similar Inside Information an ‘‘Index Provider’’) or a sub-licensing deemed to be ‘‘investment companies’’ in reliance Policy. In accordance with the Code of arrangement with the applicable on section 3(c)(1) or 3(c)(7) of the Act for which the Ethics 10 and Inside Information Policy Adviser, which will have a licensing Adviser acts as adviser or subadviser (‘‘Affiliated of each Adviser and Sub-Adviser, 7 Accounts’’) as well other such registered investment agreement with such Index Provider. A companies, separately managed accounts and privately offered funds for which it does not act 9 In this regard, applicants cite Rule 17j–1 under 6 Under accounting procedures followed by each either as adviser or subadviser (‘‘Unaffiliated the Act and Section 204A under the Advisers Act Fund, trades made on the prior Business Day (‘‘T’’) Accounts’’). The Affiliated Accounts and the and Rules 204A–1 and 206(4)–7 under the Advisers will be booked and reflected in NAV on the current Unaffiliated Accounts, like the Funds, would seek Act. Business Day (T+1). Accordingly, the Funds will be to track the performance of one or more Underlying 10 Applicants represent that each Adviser has also able to disclose at the beginning of the Business Day Index(es) by investing in the constituents of such adopted or will adopt a code of ethics pursuant to the portfolio that will form the basis for the NAV Underlying Indexes or a representative sample of Rule 17j-1 under the Act and Rule 204A–1 under calculation at the end of the Business Day. such constituents of the Underlying Index. the Advisers Act, which contains provisions 7 The licenses for the Self-Indexing Funds will Consistent with the relief requested from section reasonably necessary to prevent Access Persons (as specifically state that the Affiliated Index Provider 17(a), the Affiliated Accounts will not engage in defined in Rule 17j-1) from engaging in any conduct (or in case of a sub-licensing agreement, the Creation Unit transactions with a Fund. prohibited in Rule 17j-1 (‘‘Code of Ethics’’).

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personnel of those entities with will receive an in-kind transfer of Redemption Instruments exchanged for knowledge about the composition of the specified instruments (‘‘Redemption the Creation Unit, the party conveying Portfolio Deposit 11 will be prohibited Instruments’’).12 On any given Business instruments with the lower value will from disclosing such information to any Day, the names and quantities of the also pay to the other an amount in cash other person, except as authorized in instruments that constitute the Deposit equal to that difference (the ‘‘Cash the course of their employment, until Instruments and the names and Amount’’). such information is made public. In quantities of the instruments that 17. Purchases and redemptions of addition, an Index Provider will not constitute the Redemption Instruments Creation Units may be made in whole or provide any information relating to will be identical, unless the Fund is in part on a cash basis, rather than in changes to an Underlying Index’s Rebalancing (as defined below). In kind, solely under the following methodology for the inclusion of addition, the Deposit Instruments and circumstances: (a) To the extent there is component securities, the inclusion or the Redemption Instruments will each a Cash Amount; (b) if, on a given exclusion of specific component correspond pro rata to the positions in Business Day, the Fund announces securities, or methodology for the the Fund’s portfolio (including cash before the open of trading that all calculation or the return of component positions) 13 except: (a) In the case of purchases, all redemptions or all securities, in advance of a public bonds, for minor differences when it is purchases and redemptions on that day announcement of such changes by the impossible to break up bonds beyond will be made entirely in cash; (c) if, Index Provider. If the requested order is certain minimum sizes needed for upon receiving a purchase or granted, the Adviser will include under transfer and settlement; (b) for minor redemption order from an Authorized Item 10.C. of Part 2 of its Form ADV a differences when rounding is necessary Participant, the Fund determines to discussion of its relationship to any to eliminate fractional shares or lots that require the purchase or redemption, as Affiliated Index Provider and any are not tradeable round lots; 14 (c) TBA applicable, to be made entirely in material conflicts of interest resulting Transactions, short positions, cash; 18 (d) if, on a given Business Day, therefrom, regardless of whether the derivatives and other positions that the Fund requires all Authorized Affiliated Index Provider is a type of cannot be transferred in kind 15 will be Participants purchasing or redeeming affiliate specified in Item 10. excluded from the Deposit Instruments Shares on that day to deposit or receive 15. To the extent the Self-Indexing and the Redemption Instruments; 16 (d) (as applicable) cash in lieu of some or Funds or their respective Master Funds to the extent the Fund determines, on a all of the Deposit Instruments or transact with an Affiliated Person of an given Business Day, to use a Redemption Instruments, respectively, Adviser or Sub-Adviser, such representative sampling of the Fund’s solely because: (i) Such instruments are transactions will comply with the Act, portfolio; 17 or (e) for temporary periods, not eligible for transfer through either the rules thereunder and the terms and to effect changes in the Fund’s portfolio the NSCC or DTC (defined below); or (ii) conditions of the requested order. In as a result of the rebalancing of its in the case of Foreign Funds holding this regard, each Self-Indexing Fund’s Underlying Index (any such change, a non-U.S. investments, such instruments board of directors or trustees (‘‘Board’’) ‘‘Rebalancing’’). If there is a difference are not eligible for trading due to local will periodically review the Self- between the NAV attributable to a trading restrictions, local restrictions on Indexing Fund’s use of an Affiliated Creation Unit and the aggregate market securities transfers or other similar Index Provider. Subject to the approval value of the Deposit Instruments or circumstances; or (e) if the Fund permits of the Self-Indexing Fund’s Board, an an Authorized Participant to deposit or Adviser, Affiliated Persons of the 12 Applicants acknowledge that the Funds must receive (as applicable) cash in lieu of Adviser (‘‘Adviser Affiliates’’) and comply with the federal securities laws in accepting some or all of the Deposit Instruments Deposit Instruments and satisfying redemptions or Redemption Instruments, Affiliated Persons of any Sub-Adviser with Redemption Instruments, including that the (‘‘Sub-Adviser Affiliates’’) may be Deposit Instruments and Redemption Instruments respectively, solely because: (i) Such authorized to provide custody, fund are sold in transactions that would be exempt from instruments are, in the case of the accounting and administration and registration under the Securities Act of 1933 purchase of a Creation Unit, not (‘‘Securities Act’’). Applicants further acknowledge available in sufficient quantity; (ii) such transfer agency services to the Self- that in accepting Deposit Instruments and satisfying Indexing Funds. Any services provided redemptions with Redemption Instruments that are instruments are not eligible for trading by an Adviser, Adviser Affiliates, Sub- restricted securities eligible for resale pursuant to by an Authorized Participant or the Adviser and Sub-Adviser Affiliates will rule 144A under the Securities Act, the Funds will investor on whose behalf the comply with the conditions of rule 144A. Authorized Participant is acting; or (iii) be performed in accordance with the 13 The portfolio used for this purpose will be the provisions of the Act, the rules under same portfolio used to calculate the Fund’s NAV for a holder of Shares of a Foreign Fund the Act and any relevant guidelines the Business Day. holding non-U.S. investments would be from the staff of the Commission. 14 A tradeable round lot for a security will be the subject to unfavorable income tax 16. The Shares of each Fund will be standard unit of trading in that particular type of security in its primary market. purchased and redeemed in Creation 18 In determining whether a particular Fund will 15 This includes instruments that can be sell or redeem Creation Units entirely on a cash or Units and generally on an in-kind basis. transferred in kind only with the consent of the in-kind basis (whether for a given day or a given Except where the purchase or original counterparty to the extent the Fund does order), the key consideration will be the benefit that redemption will include cash under the not intend to seek such consents. would accrue to the Fund and its investors. For limited circumstances specified below, 16 Because these instruments will be excluded instance, in bond transactions, the Adviser may be from the Deposit Instruments and the Redemption able to obtain better execution than Share purchasers will be required to purchase Instruments, their value will be reflected in the purchasers because of the Adviser’s size, experience Creation Units by making an in-kind determination of the Cash Amount (as defined and potentially stronger relationships in the fixed deposit of specified instruments below). income markets. Purchases of Creation Units either (‘‘Deposit Instruments’’), and 17 A Fund may only use sampling for this purpose on an all cash basis or in-kind are expected to be if the sample: (i) Is designed to generate neutral to the Funds from a tax perspective. In shareholders redeeming their Shares performance that is highly correlated to the contrast, cash redemptions typically require selling performance of the Fund’s portfolio; (ii) consists portfolio holdings, which may result in adverse tax 11 The instruments and cash that the purchaser is entirely of instruments that are already included in consequences for the remaining Fund shareholders required to deliver in exchange for the Creation the Fund’s portfolio; and (iii) is the same for all that would not occur with an in-kind redemption. Units it is purchasing is referred to as the ‘‘Portfolio Authorized Participants (as defined below) on a As a result, tax consideration may warrant in-kind Deposit.’’ given Business Day. redemptions.

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treatment if the holder receives Fund’s existing shareholders. Each market purchasers of Shares will redemption proceeds in kind.19 Fund will impose purchase or include both institutional and retail 18. Creation Units will consist of redemption transaction fees investors.22 The price at which Shares specified large aggregations of Shares, (‘‘Transaction Fees’’) in connection with trade will be disciplined by arbitrage e.g., at least 20,000 Shares, and it is effecting such purchases or redemptions opportunities created by the option expected that the initial price of a of Creation Units. With respect to continually to purchase or redeem Creation Unit will range from $1 million Feeder Funds, the Transaction Fee Shares in Creation Units, which should to $10 million, and that the initial would be paid indirectly to the Master help prevent Shares from trading at a trading price per individual Share of Fund.20 In all cases, such Transaction material discount or premium in each Fund will fall in the range of $15 Fees will be limited in accordance with relation to their NAV. to $100. All orders to purchase Shares requirements of the Commission 23. Shares are not individually of a Fund in Creation Units must be applicable to management investment redeemable; owners of Shares may placed with the Distributor by or companies offering redeemable acquire those Shares from the Fund, or through an ‘‘Authorized Participant’’ securities. Since the Transaction Fees tender such Shares for redemption to which is either (1) a ‘‘Participating are intended to defray the transaction the Fund in Creation Units only. To Party,’’ i.e., a broker-dealer or other expenses as well as to prevent possible redeem through the applicable Fund, an participant in the Continuous Net shareholder dilution resulting from the investor must accumulate enough Settlement System of the National purchase or redemption of Creation Shares to constitute a Creation Unit. Securities Clearing Corporation Units, the Transaction Fees will be Redemption requests must be placed by (‘‘NSCC’’), a clearing agency registered borne only by such purchasers or or through an Authorized Participant. A with the Commission, or (2) a redeemers.21 The Distributor will be redeeming investor will pay a participant in The Depository Trust responsible for delivering the Fund’s Transaction Fee, calculated in the same Company (‘‘DTC’’) (‘‘DTC Participant’’), prospectus to those persons purchasing manner as a Transaction Fee payable in which, in either case, will sign a Shares in Creation Units and for connection with purchases of Creation ‘‘Participant Agreement’’ with the maintaining records of both the orders Units. Distributor. The Distributor will be placed with it and the confirmations of 24. Neither the Trust nor any of its responsible for transmitting the orders acceptance furnished by it. In addition, individual Funds will be advertised or to the Funds and will furnish to those the Distributor will maintain a record of marketed or otherwise ‘‘held out’’ as a placing such orders confirmation that the instructions given to the applicable traditional open-end investment the orders have been accepted, but Fund to implement the delivery of its company or a ‘‘mutual fund.’’ Instead, applicants state that the Distributor may Shares. each such Fund will be marketed as an reject any order which is not submitted 21. Shares of each Fund will be listed ‘‘ETF.’’ All marketing materials that in proper form. and traded individually on an describe the features or method of 19. Each Business Day, before the Exchange. It is expected that one or obtaining, buying or selling Creation open of trading on the Listing Exchange, more member firms of an Exchange will Units, or Shares traded on an Exchange, each Fund will cause to be published be designated to act as market makers or refer to redeemability, will through the NSCC the names and (each, a ‘‘Market Maker’’) and maintain prominently disclose that Shares are not quantities of the instruments comprising a market for Shares trading on the individually redeemable and will the Deposit Instruments and the Exchange. The price of Shares trading disclose that the owners of Shares may Redemption Instruments, as well as the on an Exchange will be based on a acquire those Shares from the Fund or estimated Cash Amount (if any), for that current bid/offer market. Transactions tender such Shares for redemption to day. The list of Deposit Instruments and involving the sale of Shares on an the Fund in Creation Units only. The Redemption Instruments will apply Exchange will be subject to customary Funds will provide copies of their until a new list is announced on the brokerage commissions and charges. annual and semi-annual shareholder following Business Day, and there will 22. Applicants expect that purchasers reports to DTC Participants for be no intra-day changes to the list of Creation Units will include, among distribution to shareholders. except to correct errors in the published others, institutional investors and Applicants’ Legal Analysis list. Each Listing Exchange or other arbitrageurs. Market Makers, acting in 1. Applicants request an order under major market data provider will their roles to provide a fair and orderly section 6(c) of the Act for an exemption disseminate, every 15 seconds during secondary market for the Shares, may from sections 2(a)(32), 5(a)(1), 22(d), and regular Exchange trading hours, through from time to time find it appropriate to 22(e) of the Act and rule 22c–1 under the facilities of the Consolidated Tape purchase or redeem Creation Units. Applicants expect that secondary the Act, under section 12(d)(1)(J) of the Association or other widely Act for an exemption from sections disseminated means, an amount for 20 Applicants are not requesting relief from 12(d)(1)(A) and (B) of the Act, and each Fund stated on a per individual under sections 6(c) and 17(b) of the Act Share basis representing the sum of (i) section 18 of the Act. Accordingly, a Master Fund may require a Transaction Fee payment to cover for an exemption from sections 17(a)(1) the estimated Cash Amount and (ii) the expenses related to purchases or redemptions of the and 17(a)(2) of the Act. current value of the Deposit Master Fund’s shares by a Feeder Fund only if it 2. Section 6(c) of the Act provides that requires the same payment for equivalent purchases Instruments. the Commission may exempt any 20. Transaction expenses, including or redemptions by any other feeder fund. Thus, for example, a Master Fund may require payment of a person, security or transaction, or any operational processing and brokerage Transaction Fee by a Feeder Fund for transactions class of persons, securities or costs, will be incurred by a Fund when for 20,000 or more shares so long as it requires transactions, from any provision of the payment of the same Transaction Fee by all feeder investors purchase or redeem Creation Act, if and to the extent that such Units in-kind and such costs have the funds for transactions involving 20,000 or more shares. potential to dilute the interests of the 21 Where a Fund permits an ‘‘in-kind’’ purchaser 22 Shares will be registered in book-entry form to substitute cash in lieu of depositing one or more only. DTC or its nominee will be the record or 19 A ‘‘custom order’’ is any purchase or of the requisite Deposit Instruments, the purchaser registered owner of all outstanding Shares. redemption of Shares made in whole or in part on may be assessed a higher Transaction Fee to cover Beneficial ownership of Shares will be shown on a cash basis in reliance on clause (e)(i) or (e)(ii). the cost of purchasing such Deposit Instruments. the records of DTC or the DTC Participants.

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exemption is necessary or appropriate Act generally requires that a dealer a security for redemption. Applicants in the public interest and consistent selling, redeeming or repurchasing a state that settlement of redemptions for with the protection of investors and the redeemable security do so only at a Foreign Funds will be contingent not purposes fairly intended by the policy price based on its NAV. Applicants state only on the settlement cycle of the and provisions of the Act. Section 17(b) that secondary market trading in Shares United States market, but also on of the Act authorizes the Commission to will take place at negotiated prices, not current delivery cycles in local markets exempt a proposed transaction from at a current offering price described in for the underlying foreign securities section 17(a) of the Act if evidence a Fund’s prospectus, and not at a price held by a Foreign Fund. Applicants establishes that the terms of the based on NAV. Thus, purchases and state that the delivery cycles currently transaction, including the consideration sales of Shares in the secondary market practicable for transferring Redemption to be paid or received, are reasonable will not comply with section 22(d) of Instruments to redeeming investors, and fair and do not involve the Act and rule 22c–1 under the Act. coupled with local market holiday overreaching on the part of any person Applicants request an exemption under schedules, may require a delivery concerned, and the proposed section 6(c) from these provisions. process of up to fifteen (15) calendar transaction is consistent with the 5. Applicants assert that the concerns days.24 Accordingly, with respect to policies of the registered investment sought to be addressed by section 22(d) Foreign Funds only, applicants hereby company and the general provisions of of the Act and rule 22c–1 under the Act request relief under section 6(c) from the Act. Section 12(d)(1)(J) of the Act with respect to pricing are equally the requirement imposed by section provides that the Commission may satisfied by the proposed method of 22(e) to allow Foreign Funds to pay exempt any person, security, or pricing Shares. Applicants maintain that redemption proceeds within fifteen (15) transaction, or any class or classes of while there is little legislative history calendar days following the tender of persons, securities or transactions, from regarding section 22(d), its provisions, Creation Units for redemption.25 any provisions of section 12(d)(1) if the as well as those of rule 22c–1, appear to 8. Applicants believe that Congress exemption is consistent with the public have been designed to (a) prevent adopted section 22(e) to prevent interest and the protection of investors. dilution caused by certain riskless- unreasonable, undisclosed or trading schemes by principal unforeseen delays in the actual payment Sections 5(a)(1) and 2(a)(32) of the Act underwriters and contract dealers, (b) of redemption proceeds. Applicants 3. Section 5(a)(1) of the Act defines an prevent unjust discrimination or propose that allowing redemption ‘‘open-end company’’ as a management preferential treatment among buyers, payments for Creation Units of a Foreign investment company that is offering for and (c) ensure an orderly distribution of Fund to be made within fifteen calendar sale or has outstanding any redeemable investment company shares by days would not be inconsistent with the security of which it is the issuer. eliminating price competition from spirit and intent of section 22(e). Section 2(a)(32) of the Act defines a dealers offering shares at less than the Applicants suggest that a redemption redeemable security as any security, published sales price and repurchasing payment occurring within fifteen other than short-term paper, under the shares at more than the published calendar days following a redemption terms of which the owner, upon its redemption price. request would adequately afford presentation to the issuer, is entitled to 6. Applicants believe that none of investor protection. receive approximately a proportionate these purposes will be thwarted by 9. Applicants are not seeking relief share of the issuer’s current net assets, permitting Shares to trade in the from section 22(e) with respect to or the cash equivalent. Because Shares secondary market at negotiated prices. Foreign Funds that do not effect will not be individually redeemable, Applicants state that (a) secondary creations and redemptions of Creation applicants request an order that would market trading in Shares does not Units in-kind.26 involve a Fund as a party and will not permit the Funds to register as open-end result in dilution of an investment in Section 12(d)(1) management investment companies and Shares, and (b) to the extent different issue Shares that are redeemable in 10. Section 12(d)(1)(A) of the Act prices exist during a given trading day, prohibits a registered investment Creation Units only.23 Applicants state or from day to day, such variances occur company from acquiring securities of an that investors may purchase Shares in as a result of third-party market forces, investment company if such securities Creation Units and redeem Creation such as supply and demand. Therefore, represent more than 3% of the total Units from each Fund. Applicants applicants assert that secondary market outstanding voting stock of the acquired further state that because Creation Units transactions in Shares will not lead to company, more than 5% of the total may always be purchased and redeemed discrimination or preferential treatment assets of the acquiring company, or, at NAV, the price of Shares on the among purchasers. Finally, applicants together with the securities of any other secondary market should not vary contend that the price at which Shares investment companies, more than 10% materially from NAV. trade will be disciplined by arbitrage of the total assets of the acquiring Section 22(d) of the Act and Rule 22c± opportunities created by the option company. Section 12(d)(1)(B) of the Act 1 Under the Act continually to purchase or redeem prohibits a registered open-end 4. Section 22(d) of the Act, among Shares in Creation Units, which should help prevent Shares from trading at a 24 Certain countries in which a Fund may invest other things, prohibits a dealer from have historically had settlement periods of up to selling a redeemable security that is material discount or premium in relation to their NAV. fifteen (15) calendar days. currently being offered to the public by 25 Applicants acknowledge that no relief obtained or through an underwriter, except at a Section 22(e) from the requirements of section 22(e) will affect current public offering price described any obligations applicants may otherwise have 7. Section 22(e) of the Act generally under rule 15c6–1 under the Exchange Act in the prospectus. Rule 22c–1 under the prohibits a registered investment requiring that most securities transactions be settled company from suspending the right of within three business days of the trade date. 23 The Master Funds will not require relief from 26 In addition, the requested exemption from sections 2(a)(32) and 5(a)(1) because the Master redemption or postponing the date of section 22(e) would only apply to in-kind Funds will issue individually redeemable payment of redemption proceeds for redemptions by the Feeder Funds and would not securities. more than seven days after the tender of apply to in-kind redemptions by other feeder funds.

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investment company, its principal control that a Fund of Funds may have directors or trustees of any Investing underwriter and any other broker-dealer over a Fund, applicants propose a Management Company, including a from knowingly selling the investment condition prohibiting a Fund of Funds majority of the directors or trustees who company’s shares to another investment Adviser or Sponsor, any person are not ‘‘interested persons’’ within the company if the sale will cause the controlling, controlled by, or under meaning of section 2(a)(19) of the Act acquiring company to own more than common control with a Fund of Funds (‘‘disinterested directors or trustees’’), 3% of the acquired company’s voting Adviser or Sponsor, and any investment will find that the advisory fees charged stock, or if the sale will cause more than company and any issuer that would be under the contract are based on services 10% of the acquired company’s voting an investment company but for sections provided that will be in addition to, stock to be owned by investment 3(c)(1) or 3(c)(7) of the Act that is rather than duplicative of, services companies generally. advised or sponsored by a Fund of provided under the advisory contract of 11. Applicants request an exemption Funds Adviser or Sponsor, or any any Fund, or its respective Master Fund, to permit registered management person controlling, controlled by, or in which the Investing Management investment companies and unit under common control with a Fund of Company may invest. In addition, under investment trusts (‘‘UITs’’) that are not Funds Adviser or Sponsor (‘‘Fund of condition B.5., a Fund of Funds advised or sponsored by the Advisers Funds’ Advisory Group’’) from Adviser, or a Fund of Funds’ trustee or and are not part of the same ‘‘group of controlling (individually or in the Sponsor, as applicable, will waive fees investment companies,’’ as defined in aggregate) a Fund within the meaning of otherwise payable to it by the Fund of section 12(d)(1)(G)(ii) of the Act as the section 2(a)(9) of the Act. The same Funds in an amount at least equal to any Funds (such management investment prohibition would apply to any Fund of compensation (including fees received companies are referred to as ‘‘Investing Funds Sub-Adviser, any person pursuant to any plan adopted by a Management Companies,’’ such UITs controlling, controlled by or under Fund, or its respective Master Fund, are referred to as ‘‘Investing Trusts,’’ common control with the Fund of under rule 12b–1 under the Act) and Investing Management Companies Funds Sub-Adviser, and any investment received from a Fund by the Fund of and Investing Trusts are collectively company or issuer that would be an Funds Adviser, trustee or Sponsor or an referred to as ‘‘Funds of Funds’’), to investment company but for sections affiliated person of the Fund of Funds acquire Shares beyond the limits of 3(c)(1) or 3(c)(7) of the Act (or portion Adviser, trustee or Sponsor, other than section 12(d)(1)(A) of the Act; and the of such investment company or issuer) any advisory fees paid to the Fund of Funds, and any principal underwriter advised or sponsored by the Fund of Funds Adviser, trustee or Sponsor or its for the Funds, and/or any Broker Funds Sub-Adviser or any person affiliated person by a Fund, in registered under the Exchange Act, to controlling, controlled by or under connection with the investment by the sell Shares to Funds of Funds beyond common control with the Fund of the limits of section 12(d)(1)(B) of the Fund of Funds in the Fund. Applicants Funds Sub-Adviser (‘‘Fund of Funds’ state that any sales charges and/or Act. Sub-Advisory Group’’). 12. Each Investing Management service fees charged with respect to 15. Applicants propose other shares of a Fund of Funds will not Company will be advised by an conditions to limit the potential for investment adviser within the meaning exceed the limits applicable to a fund of undue influence over the Funds, funds as set forth in NASD Conduct of section 2(a)(20)(A) of the Act (the including that no Fund of Funds or Rule 2830.28 ‘‘Fund of Funds Adviser’’) and may be Fund of Funds Affiliate (except to the sub-advised by investment advisers extent it is acting in its capacity as an 17. Applicants submit that the within the meaning of section investment adviser to a Fund) will cause proposed arrangement will not create an 2(a)(20)(B) of the Act (each a ‘‘Fund of a Fund to purchase a security in an overly complex fund structure. Funds Sub-Adviser’’). Any investment offering of securities during the Applicants note that no Fund, nor its adviser to an Investing Management existence of an underwriting or selling respective Master Fund, will acquire Company will be registered under the syndicate of which a principal securities of any investment company or Advisers Act. Each Investing Trust will underwriter is an Underwriting Affiliate company relying on section 3(c)(1) or be sponsored by a sponsor (‘‘Sponsor’’). (‘‘Affiliated Underwriting’’). An 3(c)(7) of the Act in excess of the limits 13. Applicants submit that the ‘‘Underwriting Affiliate’’ is a principal contained in section 12(d)(1)(A) of the proposed conditions to the requested underwriter in any underwriting or Act, except to the extent permitted by relief adequately address the concerns selling syndicate that is an officer, exemptive relief from the Commission underlying the limits in sections director, member of an advisory board, permitting the Fund, or its respective 12(d)(1)(A) and (B), which include Fund of Funds Adviser, Fund of Funds Master Fund, to purchase shares of concerns about undue influence by a Sub-Adviser, employee or Sponsor of other investment companies for short- fund of funds over underlying funds, the Fund of Funds, or a person of which term cash management purposes or excessive layering of fees and overly any such officer, director, member of an pursuant to the Master-Feeder Relief. To complex fund structures. Applicants advisory board, Fund of Funds Adviser ensure a Fund of Funds is aware of the believe that the requested exemption is or Fund of Funds Sub-Adviser, terms and conditions of the requested consistent with the public interest and employee or Sponsor is an affiliated order, the Fund of Funds will enter into the protection of investors. person (except that any person whose an agreement with the Fund (‘‘FOF 14. Applicants believe that neither a relationship to the Fund is covered by Participation Agreement’’). The FOF Fund of Funds nor a Fund of Funds section 10(f) of the Act is not an Participation Agreement will include an Affiliate would be able to exert undue acknowledgement from the Fund of 27 Underwriting Affiliate). influence over a Fund. To limit the 16. Applicants do not believe that the Funds that it may rely on the order only proposed arrangement will involve to invest in the Funds and not in any 27 A ‘‘Fund of Funds Affiliate’’ is a Fund of Funds other investment company. Adviser, Fund of Funds Sub-Adviser, Sponsor, excessive layering of fees. The board of promoter, and principal underwriter of a Fund of Funds, and any person controlling, controlled by, promoter, or principal underwriter of a Fund and 28 Any references to NASD Conduct Rule 2830 or under common control with any of those entities. any person controlling, controlled by or under include any successor or replacement FINRA rule A ‘‘Fund Affiliate’’ is an investment adviser, common control with any of these entities. to NASD Conduct Rule 2830.

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18. Applicants also note that a Fund common control with the other person. Applicants do not believe that ‘‘in-kind’’ may choose to reject a direct purchase Section 2(a)(9) of the Act defines purchases and redemptions will result of Shares in Creation Units by a Fund ‘‘control’’ as the power to exercise a in abusive self-dealing or overreaching, of Funds. To the extent that a Fund of controlling influence over the but rather assert that such procedures Funds purchases Shares in the management or policies of a company, will be implemented consistently with secondary market, a Fund would still and provides that a control relationship each Fund’s objectives and with the retain its ability to reject any initial will be presumed where one person general purposes of the Act. Applicants investment by a Fund of Funds in owns more than 25% of a company’s believe that ‘‘in-kind’’ purchases and excess of the limits of section voting securities. The Funds may be redemptions will be made on terms 12(d)(1)(A) by declining to enter into a deemed to be controlled by an Adviser reasonable to applicants and any FOF Participation Agreement with the or an entity controlling, controlled by or affiliated persons because they will be Fund of Funds. under common control with an Adviser valued pursuant to verifiable objective 19. Applicants also are seeking the and hence affiliated persons of each standards. The method of valuing Master-Feeder Relief to permit the other. In addition, the Funds may be Portfolio Holdings held by a Fund is Feeder Funds to perform creations and deemed to be under common control identical to that used for calculating redemptions of Shares in-kind in a with any other registered investment ‘‘in-kind’’ purchase or redemption master-feeder structure. Applicants company (or series thereof) advised by values and therefore creates no assert that this structure is substantially an Adviser or an entity controlling, opportunity for affiliated persons or identical to traditional master-feeder controlled by or under common control Second-Tier Affiliates of applicants to structures permitted pursuant to the with an Adviser (an ‘‘Affiliated Fund’’). effect a transaction detrimental to the exception provided in section Any investor, including Market Makers, other holders of Shares of that Fund. 12(d)(1)(E) of the Act. Section owning 5% or holding in excess of 25% Similarly, applicants submit that, by 12(d)(1)(E) provides that the percentage of the Trust or such Funds, may be using the same standards for valuing limitations of section 12(d)(1)(A) and (B) deemed affiliated persons of the Trust or Portfolio Holdings held by a Fund as are shall not apply to a security issued by such Funds. In addition, an investor used for calculating ‘‘in-kind’’ an investment company (in this case, could own 5% or more, or in excess of redemptions or purchases, the Fund the shares of the applicable Master 25% of the outstanding shares of one or will ensure that its NAV will not be Fund) if, among other things, that more Affiliated Funds making that adversely affected by such securities security is the only investment security investor a Second-Tier Affiliate of the transactions. Applicants also note that held by the investing investment Funds. the ability to take deposits and make company (in this case, the Feeder 21. Applicants request an exemption redemptions ‘‘in-kind’’ will help each Fund). Applicants believe the proposed from sections 17(a)(1) and 17(a)(2) of the Fund to track closely its Underlying master-feeder structure complies with Act pursuant to sections 6(c) and 17(b) Index and therefore aid in achieving the section 12(d)(1)(E) because each Feeder of the Act to permit persons that are Fund’s objectives. Fund will hold only investment Affiliated Persons of the Funds, or 23. Applicants also seek relief under securities issued by its corresponding Second-Tier Affiliates of the Funds, sections 6(c) and 17(b) from section Master Fund; however, the Feeder solely by virtue of one or more of the 17(a) to permit a Fund that is an Funds may receive securities other than following: (a) Holding 5% or more, or in affiliated person, or an affiliated person securities of its corresponding Master excess of 25%, of the outstanding Fund if a Feeder Fund accepts an in- Shares of one or more Funds; (b) an of an affiliated person, of a Fund of kind creation. To the extent that a affiliation with a person with an Funds to sell its Shares to and redeem Feeder Fund may be deemed to be ownership interest described in (a); or its Shares from a Fund of Funds, and to engage in the accompanying in-kind holding both shares of the Master Fund (c) holding 5% or more, or more than 29 and other securities, applicants request 25%, of the shares of one or more transactions with the Fund of Funds. relief from section 12(d)(1)(A) and (B). Affiliated Funds, to effectuate purchases Applicants state that the terms of the The Feeder Funds would operate in and redemptions ‘‘in-kind.’’ transactions are fair and reasonable and compliance with all other provisions of 22. Applicants assert that no useful do not involve overreaching. Applicants section 12(d)(1)(E). purpose would be served by prohibiting note that any consideration paid by a such affiliated persons from making ‘‘in- Fund of Funds for the purchase or Sections 17(a)(1) and 17(a)(2) of the Act kind’’ purchases or ‘‘in-kind’’ redemption of Shares directly from a 20. Sections 17(a)(1) and 17(a)(2) of redemptions of Shares of a Fund in Fund will be based on the NAV of the the Act generally prohibit an affiliated Creation Units. Both the deposit person of a registered investment procedures for ‘‘in-kind’’ purchases of 29 Although applicants believe that most Funds of company, or an affiliated person of such Creation Units and the redemption Funds will purchase Shares in the secondary market and will not purchase Creation Units a person, from selling any security to or procedures for ‘‘in-kind’’ redemptions of directly from a Fund, a Fund of Funds might seek purchasing any security from the Creation Units will be effected in to transact in Creation Units directly with a Fund company. Section 2(a)(3) of the Act exactly the same manner for all that is an affiliated person of a Fund of Funds. To defines ‘‘affiliated person’’ of another purchases and redemptions, regardless the extent that purchases and sales of Shares occur in the secondary market and not through principal person to include (a) any person directly of size or number. There will be no transactions directly between a Fund of Funds and or indirectly owning, controlling or discrimination between purchasers or a Fund, relief from section 17(a) would not be holding with power to vote 5% or more redeemers. Deposit Instruments and necessary. However, the requested relief would of the outstanding voting securities of Redemption Instruments for each Fund apply to direct sales of Shares in Creation Units by a Fund to a Fund of Funds and redemptions of the other person, (b) any person 5% or will be valued in the identical manner those Shares. Applicants are not seeking relief from more of whose outstanding voting as those Portfolio Holdings currently section 17(a) for, and the requested relief will not securities are directly or indirectly held by such Fund and the valuation of apply to, transactions where a Fund could be owned, controlled or held with the the Deposit Instruments and deemed an affiliated person, or an affiliated person of an affiliated person of a Fund of Funds because power to vote by the other person, and Redemption Instruments will be made an Adviser or an entity controlling, controlled by (c) any person directly or indirectly in an identical manner regardless of the or under common control with an Adviser provides controlling, controlled by or under identity of the purchaser or redeemer. investment advisory services to that Fund of Funds.

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Fund.30 Applicants believe that any transactions are consistent with the within the meaning of section 2(a)(9) of proposed transactions directly between general purposes of the Act. the Act. The members of a Fund of Funds’ Sub-Advisory Group will not the Funds and Funds of Funds will be Applicants’ Conditions consistent with the policies of each control (individually or in the aggregate) Fund of Funds. The purchase of Applicants agree that any order of the a Fund, or its respective Master Fund, Creation Units by a Fund of Funds Commission granting the requested within the meaning of section 2(a)(9) of directly from a Fund will be relief will be subject to the following the Act. If, as a result of a decrease in accomplished in accordance with the conditions: the outstanding voting securities of a investment restrictions of any such A. ETF Relief Fund, the Fund of Funds’ Advisory Fund of Funds and will be consistent Group or the Fund of Funds’ Sub- 1. The requested relief, other than the with the investment policies set forth in Advisory Group, each in the aggregate, section 12(d)(1) Relief and the section the Fund of Funds’ registration becomes a holder of more than 25 17 relief related to a master-feeder statement. Applicants also state that the percent of the outstanding voting structure, will expire on the effective proposed transactions are consistent securities of a Fund, it will vote its date of any Commission rule under the with the general purposes of the Act and Shares of the Fund in the same Act that provides relief permitting the are appropriate in the public interest. proportion as the vote of all other operation of index-based ETFs. holders of the Fund’s Shares. This 24. To the extent that a Fund operates 2. As long as a Fund operates in condition does not apply to the Fund of in a master-feeder structure, applicants reliance on the requested order, the Funds’ Sub-Advisory Group with also request relief permitting the Feeder Shares of such Fund will be listed on an respect to a Fund, or its respective Funds to engage in in-kind creations Exchange. Master Fund, for which the Fund of and redemptions with the applicable 3. Neither the Trust nor any Fund will Funds’ Sub-Adviser or a person Master Fund. Applicants state that the be advertised or marketed as an open- controlling, controlled by or under customary section 17(a)(1) and 17(a)(2) end investment company or a mutual common control with the Fund of relief would not be sufficient to permit fund. Any advertising material that Funds’ Sub-Adviser acts as the such transactions because the Feeder describes the purchase or sale of investment adviser within the meaning Funds and the applicable Master Fund Creation Units or refers to redeemability of section 2(a)(20)(A) of the Act. could also be affiliated by virtue of will prominently disclose that Shares 2. No Fund of Funds or Fund of having the same investment adviser. are not individually redeemable and Funds Affiliate will cause any existing However, applicants believe that in- that owners of Shares may acquire those or potential investment by the Fund of kind creations and redemptions Shares from the Fund and tender those Funds in a Fund to influence the terms between a Feeder Fund and a Master Shares for redemption to a Fund in of any services or transactions between Fund advised by the same investment Creation Units only. the Fund of Funds or Fund of Funds adviser do not involve ‘‘overreaching’’ 4. Each Fund’s Web site, which is and Affiliate and the Fund, or its respective by an affiliated person. Such will be publicly accessible at no charge, Master Fund, or a Fund Affiliate. transactions will occur only at the will contain, on a per Share basis for the 3. The board of directors or trustees of Feeder Fund’s proportionate share of Fund, the prior Business Day’s NAV and an Investing Management Company, the Master Fund’s net assets, and the the market closing price or the midpoint including a majority of the disinterested distributed securities will be valued in of the bid/ask spread at the time of the directors or trustees, will adopt the same manner as they are valued for calculation of such NAV (‘‘Bid/Ask procedures reasonably designed to the purposes of calculating the Price’’), and a calculation of the ensure that the Fund of Funds Adviser applicable Master Fund’s NAV. Further, premium or discount of the market and Fund of Funds Sub-Adviser are all such transactions will be effected closing price or Bid/Ask Price against conducting the investment program of with respect to pre-determined such NAV. the Investing Management Company securities and on the same terms with 5. Each Self-Indexing, Long/Short and without taking into account any respect to all investors. Finally, such 130/30 Fund will post on its Web site consideration received by the Investing transaction would only occur as a result on each Business Day, before Management Company or a Fund of of, and to effectuate, a creation or commencement of trading of Shares on Funds Affiliate from a Fund, or its redemption transaction between the the Exchange, the Fund’s, or its respective Master Fund, or Fund Feeder Fund and a third-party investor. respective Master Fund’s, Portfolio Affiliate in connection with any services or transactions. Applicants believe that the terms of the Holdings. 6. Neither Adviser nor any Sub- 4. Once an investment by a Fund of proposed transactions are reasonable Adviser to a Self-Indexing Fund, Funds in the securities of a Fund and fair and do not involve directly or indirectly, will cause any exceeds the limits in section overreaching on the part of any person Authorized Participant (or any investor 12(d)(1)(A)(i) of the Act, the Board of concerned, the proposed transactions on whose behalf an Authorized the Fund, or its respective Master Fund, are consistent with the policy of each Participant may transact with the Self- including a majority of the directors or Fund and will be consistent with the Indexing Fund) to acquire any Deposit trustees who are not ‘‘interested investment objectives and policies of Instrument for a Self-Indexing Fund, or persons’’ within the meaning of section each Fund of Funds, and the proposed its respective Master Fund, through a 2(a)(19) of the Act (‘‘non-interested transaction in which the Self-Indexing Board members’’), will determine that 30 Applicants acknowledge that the receipt of Fund, or its respective Master Fund, any consideration paid by the Fund, or compensation by (a) an affiliated person of a Fund its respective Master Fund, to the Fund of Funds, or an affiliated person of such person, for could not engage directly. the purchase by the Fund of Funds of Shares of a of Funds or a Fund of Funds Affiliate Fund or (b) an affiliated person of a Fund, or an B. Section 12(d)(1) Relief in connection with any services or affiliated person of such person, for the sale by the 1. The members of a Fund of Funds’ transactions: (i) Is fair and reasonable in Fund of its Shares to a Fund of Funds, may be Advisory Group will not control relation to the nature and quality of the prohibited by section 17(e)(1) of the Act. The FOF Participation Agreement also will include this (individually or in the aggregate) a services and benefits received by the acknowledgment. Fund, or its respective Master Fund, Fund, or its respective Master Fund; (ii)

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is within the range of consideration that Underwriting, once an investment by a conditions of the order, and agree to the Fund would be required to pay to Fund of Funds in the securities of the fulfill their responsibilities under the another unaffiliated entity in connection Fund exceeds the limit of section order. At the time of its investment in with the same services or transactions; 12(d)(1)(A)(i) of the Act, including any Shares of a Fund in excess of the limit and (iii) does not involve overreaching purchases made directly from an in section 12(d)(1)(A)(i), a Fund of on the part of any person concerned. Underwriting Affiliate. The Board will Funds will notify the Fund of the This condition does not apply with review these purchases periodically, but investment. At such time, the Fund of respect to any services or transactions no less frequently than annually, to Funds will also transmit to the Fund a between a Fund, or its respective Master determine whether the purchases were list of the names of each Fund of Funds Fund, and its investment adviser(s), or influenced by the investment by the Affiliate and Underwriting Affiliate. The any person controlling, controlled by or Fund of Funds in the Fund. The Board Fund of Funds will notify the Fund of under common control with such will consider, among other things: (i) any changes to the list of the names as investment adviser(s). Whether the purchases were consistent soon as reasonably practicable after a 5. The Fund of Funds Adviser, or with the investment objectives and change occurs. The Fund and the Fund trustee or Sponsor of an Investing Trust, policies of the Fund, or its respective of Funds will maintain and preserve a as applicable, will waive fees otherwise Master Fund; (ii) how the performance copy of the order, the FOF Participation payable to it by the Fund of Funds in of securities purchased in an Affiliated Agreement, and the list with any an amount at least equal to any Underwriting compares to the updated information for the duration of compensation (including fees received performance of comparable securities the investment and for a period of not pursuant to any plan adopted by a purchased during a comparable period less than six years thereafter, the first Fund, or its respective Master Fund, of time in underwritings other than two years in an easily accessible place. under rule 12b–l under the Act) Affiliated Underwritings or to a 10. Before approving any advisory received from a Fund, or its respective benchmark such as a comparable market contract under section 15 of the Act, the Master Fund, by the Fund of Funds index; and (iii) whether the amount of board of directors or trustees of each Adviser, or trustee or Sponsor of the securities purchased by the Fund, or its Investing Management Company Investing Trust, or an affiliated person respective Master Fund, in Affiliated including a majority of the disinterested of the Fund of Funds Adviser, or trustee Underwritings and the amount directors or trustees, will find that the or Sponsor of the Investing Trust, other purchased directly from an advisory fees charged under such than any advisory fees paid to the Fund Underwriting Affiliate have changed contract are based on services provided of Funds Adviser, trustee or Sponsor of significantly from prior years. The that will be in addition to, rather than an Investing Trust, or its affiliated Board will take any appropriate actions duplicative of, the services provided person by the Fund, or its respective based on its review, including, if under the advisory contract(s) of any Master Fund, in connection with the appropriate, the institution of Fund, or its respective Master Fund, in investment by the Fund of Funds in the procedures designed to ensure that which the Investing Management Fund. Any Fund of Funds Sub-Adviser purchases of securities in Affiliated Company may invest. These findings will waive fees otherwise payable to the Underwritings are in the best interest of and their basis will be fully recorded in Fund of Funds Sub-Adviser, directly or shareholders of the Fund. the minute books of the appropriate indirectly, by the Investing Management 8. Each Fund, or its respective Master Investing Management Company. Company in an amount at least equal to Fund, will maintain and preserve 11. Any sales charges and/or service any compensation received from a permanently in an easily accessible fees charged with respect to shares of a Fund, or its respective Master Fund, by place a written copy of the procedures Fund of Funds will not exceed the the Fund of Funds Sub-Adviser, or an described in the preceding condition, limits applicable to a fund of funds as affiliated person of the Fund of Funds and any modifications to such set forth in NASD Conduct Rule 2830. Sub-Adviser, other than any advisory procedures, and will maintain and 12. No Fund, or its respective Master fees paid to the Fund of Funds Sub- preserve for a period of not less than six Fund, will acquire securities of any Adviser or its affiliated person by the years from the end of the fiscal year in other investment company or company Fund, or its respective Master Fund, in which any purchase in an Affiliated relying on section 3(c)(1) or 3(c)(7) of connection with the investment by the Underwriting occurred, the first two the Act in excess of the limits contained Investing Management Company in the years in an easily accessible place, a in section 12(d)(1)(A) of the Act, except Fund made at the direction of the Fund written record of each purchase of to the extent (i) the Fund, or its of Funds Sub-Adviser. In the event that securities in Affiliated Underwritings respective Master Fund, acquires the Fund of Funds Sub-Adviser waives once an investment by a Fund of Funds securities of another investment fees, the benefit of the waiver will be in the securities of the Fund exceeds the company pursuant to exemptive relief passed through to the Investing limit of section 12(d)(1)(A)(i) of the Act, from the Commission permitting the Management Company. setting forth from whom the securities Fund, or its respective Master Fund, to 6. No Fund of Funds or Fund of were acquired, the identity of the acquire securities of one or more Funds Affiliate (except to the extent it underwriting syndicate’s members, the investment companies for short-term is acting in its capacity as an investment terms of the purchase, and the cash management purposes or (ii) the adviser to a Fund) will cause a Fund, or information or materials upon which Fund acquires securities of the Master its respective Master Fund, to purchase the Board’s determinations were made. Fund pursuant to the Master-Feeder a security in any Affiliated 9. Before investing in a Fund in Relief. Underwriting. excess of the limit in section 7. The Board of a Fund, or its 12(d)(1)(A), a Fund of Funds and the For the Commission, by the Division of respective Master Fund, including a Trust will execute a FOF Participation Investment Management, under delegated majority of the non-interested Board Agreement stating without limitation authority. members, will adopt procedures that their respective boards of directors Robert W. Errett, reasonably designed to monitor any or trustees and their investment Deputy Secretary. purchases of securities by a Fund, or its advisers, or trustee and Sponsor, as [FR Doc. 2015–28677 Filed 11–10–15; 8:45 am] respective Master Fund, in an Affiliated applicable, understand the terms and BILLING CODE 8011–01–P

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SECURITIES AND EXCHANGE Rule 8312 governs the information customer claims’’ from BrokerCheck and COMMISSION that FINRA releases to the public to expand the information available to through BrokerCheck. Pursuant to this the public through BrokerCheck to [Release No. 34–76359; File No. SR–FINRA– rule, most of the information that include more comprehensive CRD 2015–032] FINRA releases through BrokerCheck is disclosure information that is currently Self-Regulatory Organizations; made available the day after it is filed available through some state legacy CRD 6 Financial Industry Regulatory with the CRD system. Rule 8312(d)(5), systems.12 Another commenter noted Authority, Inc.; Order Approving a however, prohibits FINRA from that releasing information sooner Proposed Rule Change To Amend releasing Form U5 information for 15 protects the public and reduces the FINRA Rule 8312 (FINRA BrokerCheck days following the filing of such chance that an investor might deal with Disclosure) To Reduce the Waiting information. According to FINRA, this a broker who has been terminated. 13 15-day waiting period was established Period for the Release of Information IV. Discussion and Commission Reported on Form U5 to give brokers on whose behalf the Form U5 was submitted an opportunity Findings November 5, 2015. to comment on the disclosure event After careful review of the proposed either through a Form U4, or by rule change and the comment letters, I. Introduction submitting a comment directly to the Commission finds that the proposed On September 14, 2015, the Financial FINRA to be included on BrokerCheck.7 rule change is consistent with the Industry Regulatory Authority, Inc. FINRA has proposed to shorten this requirements of the Act and the rules (‘‘FINRA’’) filed with the Securities and 15-day waiting period for the release of and regulations thereunder that are Exchange Commission (‘‘SEC’’ or Form U5 disclosure information. applicable to a national securities ‘‘Commission’’), pursuant to Section Specifically, the proposed rule change association.14 Specifically, the 19(b)(1) of the Securities Exchange Act will amend Rule 8312(d)(5) to provide Commission finds that the proposed of 1934 (‘‘Act’’) 1 and Rule 19b–4 that FINRA shall not release events rule change is consistent with Section thereunder,2 a proposed rule change to reported on Section 7 of Form U5 (other 15A(b)(6) of the Act,15 which requires, amend FINRA Rule 8312 (FINRA than ‘‘Internal Review Disclosure’’ among other things, that FINRA’s rules BrokerCheck Disclosure) to reduce the events) for three business days after be designed to prevent fraudulent and 15-day waiting period for the release of FINRA’s processing 8 of the filing.9 manipulative acts and practices, to information reported on Form U5 However, if an event is reported on promote just and equitable principles of (Uniform Termination Notice for Form U5 and the same event is trade, and, in general, to protect Securities Industry Registration) thereafter reported on Form U4 before investors and the public interest. through BrokerCheck. The proposed the three-business-day period expires, The proposed rule change, by rule change was published for comment FINRA will release the Forms U4 and reducing the waiting period for the in the Federal Register on October 1, U5 information simultaneously upon release of Form U5 information through 2015.3 The Commission received two processing; this three-business-day BrokerCheck, is designed to enhance comment letters on the proposed rule period may be shortened.10 investor protection by allowing change.4 This order approves the III. Comment Letters investors to more quickly access disclosure information reported on proposed rule change. 11 Commenters support the proposal. Form U5 through BrokerCheck and II. Description of the Proposed Rule One commenter, while supporting the limiting the time period during which Change proposed rule change, believes that an incomplete picture of a broker’s BrokerCheck provides the public with FINRA needs to go further to ‘‘address disclosure history may be displayed in information on the professional and correct the present system that BrokerCheck. In addition, by providing background, business practices, and allows for the routine expungement of for the simultaneous release of Forms conduct of FINRA members and their U4 and U5 information on BrokerCheck for Securities Industry Registration); Form U6 associated persons. The information that (Uniform Disciplinary Action Reporting Form); before the three-business day waiting FINRA releases through BrokerCheck is Form BD (Uniform Application for Broker-Dealer period in the case where the same derived from the Central Registration Registration); and Form BDW (Uniform Request for disclosure event is reported on both Depository (‘‘CRD’’), the securities Broker-Dealer Withdrawal). forms, the proposed rule should help to 6 industry online registration and See Notice, supra note 3, at 59216. reduce investor uncertainty and 7 See Securities Exchange Act Release No. 55127 licensing database. FINRA member (January 18, 2007), 72 FR 3455 (January 25, 2007) confusion regarding the same disclosure firms, their associated persons and (Order Approving File No. SR–NASD–2003–168). event; namely, a broker’s termination regulators report information to the CRD 8 FINRA states that, for purposes of the proposed from his prior firm. system via the uniform registration rule change, a Form U5 will be considered The Commission believes that 5 processed once the Disclosure Reporting Page, forms. which contains the details about a disclosure event, BrokerCheck is an important tool for has been reviewed by FINRA staff. FINRA states investors to use to help them make 1 15 U.S.C. 78s(b)(1). that most Forms U5 that contain disclosure informed choices about the individuals 2 17 CFR 240.19b–4. information are processed within two days of being and firms with which they conduct 3 See Securities Exchange Act Release No. 75988 filed with the CRD system. See Notice, supra note business.16 The Commission believes (September 25, 2015), 80 FR 59215 (‘‘Notice’’). 3, at 59216, n.7. 4 See Letter from Joseph C. Peiffer, President, 9 For example, if disclosure information on Form 12 Public Investors Arbitration Bar Association, dated U5 is processed on Monday, FINRA would release See PIABA Letter at 2. October 19, 2015 (‘‘PIABA Letter’’) and Letter from that information via BrokerCheck on Thursday. 13 See Hammond Letter. Denise M. Hammond, Law Student, Barry 10 For example, if FINRA processes a disclosure 14 In approving this proposed rule change, the University, dated October 22, 2014 (‘‘Hammond event reported on Form U5 on Monday, and on Commission has considered the proposed rule’s Letter’’). Tuesday processes a Form U4 filed by a broker impact on efficiency, competition, and capital 5 FINRA discloses through BrokerCheck reporting that event, the Form U5 information formation. See 15 U.S.C. 78c(f). information that is reported on the following would be made publicly available in BrokerCheck 15 15 U.S.C. 78o–3(b)(6). uniform registration forms: Form U4 (Uniform on Wednesday, which is the same day that the 16 The Commission encourages investors to Application for Securities Industry Registration or Form U4 information would be released. utilize all sources of information, including the Transfer); Form U5 (Uniform Termination Notice 11 See PIABA Letter at 1 and Hammond Letter. databases of state regulators, as well as legal search

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that reducing the waiting period for the exemption from sections 18(c) and 18(i) Applicants’ Representations release of Form U5 disclosure of the Act, under sections 6(c) and 1. The Fund is a Delaware statutory information through BrokerCheck, and 23(c)(3) of the Act for an exemption trust that is registered under the Act as releasing Form U4 and Form U5 from rule 23c–3 under the Act, and for a non-diversified, closed-end information regarding the same an order pursuant to section 17(d) of the management investment company. The disclosure event simultaneously on Act and rule 17d–1 under the Act. Fund’s investment objective is to seek BrokerCheck before the end of the total return through a combination of waiting period, will limit the time SUMMARY OF APPLICATION: Applicants long-term capital appreciation and period during which an incomplete request an order to permit certain income generation. picture of a broker’s disclosure history registered closed-end management 2. The Adviser is a Delaware limited may be displayed in BrokerCheck and investment companies to issue multiple liability company and is registered as an should help to reduce investor classes of shares and to impose asset- investment adviser under the confusion regarding the reason for a based distribution fees and early Investment Advisers Act of 1940. The broker’s termination. The Commission withdrawal charges (‘‘EWCs’’). Adviser serves as investment adviser to notes that brokers on whose behalf a the Fund. Form U5 is submitted will continue to APPLICANTS: Wildermuth Endowment 3. The applicants seek an order to have an opportunity to comment on the Strategy Fund (the ‘‘Fund’’) and permit the Fund to issue multiple reported disclosure event either through Wildermuth Advisory, LLC (the classes of shares, each having its own a Form U4 or by submitting a broker ‘‘Adviser’’). fee and expense structure, and to comment directly to FINRA for FILING DATES: The application was filed impose asset-based distribution fees and inclusion in BrokerCheck. on August 13, 2015. EWCs. The Commission appreciates FINRA’s 4. Applicants request that the order efforts to enhance BrokerCheck and HEARING OR NOTIFICATION OF HEARING: also apply to any continuously-offered encourages FINRA to continue An order granting the requested relief registered closed-end management improving it and to consider the will be issued unless the Commission investment company that has been suggestions made regarding the orders a hearing. Interested persons may previously organized or that may be expungement of customer claims from request a hearing by writing to the organized in the future for which the BrokerCheck and expanding the Commission’s Secretary and serving Adviser or any entity controlling, information made available to the applicants with a copy of the request, controlled by, or under common control public through BrokerCheck.17 personally or by mail. Hearing requests with the Adviser, or any successor in should be received by the Commission 1 V. Conclusion interest to any such entity, acts as by 5:30 p.m. on November 30, 2015, and investment adviser and which operates It is therefore ordered, pursuant to should be accompanied by proof of as an interval fund pursuant to rule 18 Section 19(b)(2) of the Act, that the service on the applicants, in the form of 23c–3 under the Act or provides proposed rule change (SR–FINRA– an affidavit, or, for lawyers, a certificate periodic liquidity with respect to its 2015–032), be, and hereby is, approved. of service. Pursuant to rule 0–5 under shares pursuant to rule 13e–4 under the For the Commission, by the Division of the Act, hearing requests should state Securities Exchange Act of 1934 Trading and Markets, pursuant to delegated the nature of the writer’s interest, any (‘‘Exchange Act’’) (each, a ‘‘Future authority.19 facts bearing upon the desirability of a Fund’’ and together with the Fund, the Robert W. Errett, hearing on the matter, the reason for the ‘‘Funds’’).2 Deputy Secretary. request, and the issues contested. 5. The Fund is currently making a [FR Doc. 2015–28680 Filed 11–10–15; 8:45 am] Persons who wish to be notified of a continuous public offering of its BILLING CODE 8011–01–P hearing may request notification by common shares. Applicants state that writing to the Commission’s Secretary. additional offerings by any Fund relying ADDRESSES: Secretary, U.S. Securities on the order may be on a private SECURITIES AND EXCHANGE and Exchange Commission, 100 F Street placement or public offering basis. COMMISSION NE., Washington, DC 20549–1090; Shares of the Funds will not be listed on [Investment Company Act Release No. Applicants: Wildermuth Endowment any securities exchange, nor quoted on 31896; File No. 812–14534] Strategy Fund and Wildermuth any quotation medium. The Funds do Advisory, LLC, c/o David J. Baum, Esq. not expect there to be a secondary Wildermuth Endowment Strategy Fund Alston & Bird, LLC, 950 F Street NW., trading market for their shares. 6. If the requested relief is granted, the and Wildermuth Advisory, LLC; Notice Washington, DC 20004. of Application Fund intends to redesignate its common FOR FURTHER INFORMATION CONTACT: shares as ‘‘Class A Shares’’ and to November 5, 2015. Kaitlin C. Bottock, Senior Counsel, at continuously offer ‘‘Class C Shares’’, AGENCY: Securities and Exchange (202) 551–8658, or Daniele Marchesani, and may also offer additional classes of Commission (‘‘Commission’’). Branch Chief, at (202) 551–6821 shares in the future. Because of the ACTION: Notice of an application under (Division of Investment Management, different distribution fees, services and section 6(c) of the Investment Company Chief Counsel’s Office). any other class expenses that may be Act of 1940 (the ‘‘Act’’) for an attributable to the Class A Shares and SUPPLEMENTARY INFORMATION: The following is a summary of the engines and records searches to conduct a thorough 1 A successor in interest is limited to an entity search of any associated person or firm with which application. The complete application that results from a reorganization into another they are considering doing business. See also may be obtained via the Commission’s jurisdiction or a change in the type of business Securities Exchange Act Release No. 62476 (July 8, Web site by searching for the file organization. 2010), 75 FR 41254 (July 15, 2010) (SR–FINRA– number, or for an applicant using the 2 Any Fund relying on this relief in the future will 2010–012). do so in a manner consistent with the terms and 17 See supra note 12 and accompanying text. Company name box, at http:// conditions of the application. Applicants represent 18 15 U.S.C. 78s(b)(2). www.sec.gov/search/search.htm or by that each entity presently intending to rely on the 19 17 CFR 200.30–3(a)(12). calling (202) 551–8090. requested relief is listed as an applicant.

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Class C Shares, the net income loads in its prospectus.5 In addition, Act may offer its shareholders an attributable to, and the dividends applicants will comply with applicable exchange feature under which the payable on, each class of shares may enhanced fee disclosure requirements shareholders of the Fund may, in differ from each other. for fund of funds, including registered connection with the Fund’s periodic 7. Applicants state that, from time to funds of hedge funds.6 repurchase offers, exchange their shares time, the Fund may create additional 10. Each of the Funds will comply of the Fund for shares of the same class classes of shares, the terms of which with any requirements that the of (i) registered open-end investment may differ from the Class A and Class Commission or FINRA may adopt companies or (ii) other registered C Shares in the following respects: (i) regarding disclosure at the point of sale closed-end investment companies that The amount of fees permitted by and in transaction confirmations about comply with rule 23c–3 under the Act different distribution plans or different the costs and conflicts of interest arising and continuously offer their shares at service fee arrangements; (ii) voting out of the distribution of open-end net asset value, that are in the Fund’s rights with respect to a distribution plan investment company shares, and group of investment companies of a class; (iii) different class regarding prospectus disclosure of sales (collectively, ‘‘Other Funds’’). Shares of designations; (iv) the impact of any class loads and revenue sharing a Fund operating pursuant to rule 23c– expenses directly attributable to a arrangements, as if those requirements 3 that are exchanged for shares of Other particular class of shares allocated on a applied to the Fund. In addition, each Funds will be included as part of the class basis as described in the Fund will contractually require that any amount of the repurchase offer amount application; (v) any differences in distributor of the Fund’s shares comply for such Fund as specified in rule 23c– dividends and net asset value resulting with such requirements in connection 3 under the Act. Any exchange option from differences in fees under a with the distribution of such Fund’s will comply with rule 11a–3 under the distribution plan or in class expenses; shares. Act, as if the Fund were an open-end (vi) any EWC or other sales load 11. Each Fund will allocate all investment company subject to rule structure; and (vii) exchange or expenses incurred by it among the 11a–3. In complying with rule 11a–3, conversion privileges of the classes as various classes of shares based on the each Fund will treat an EWC as if it permitted under the Act. net assets of the Fund attributable to were a contingent deferred sales load 8. Applicants state that the Fund has each class, except that the net asset (‘‘CDSL’’). adopted a fundamental policy to value and expenses of each class will Applicants’ Legal Analysis repurchase a specified percentage of its reflect distribution fees, service fees, shares (no less than 5%) at net asset and any other incremental expenses of Multiple Classes of Shares that class. Expenses of the Fund value on a quarterly basis. Such 1. Section 18(c) of the Act provides, repurchase offers will be conducted allocated to a particular class of shares will be borne on a pro rata basis by each in relevant part, that a closed-end pursuant to rule 23c–3 under the Act. outstanding share of that class. investment company may not issue or Each of the other Funds will likewise Applicants state that each Fund will sell any senior security if, immediately adopt fundamental investment policies comply with the provisions of rule 18f– thereafter, the company has outstanding in compliance with rule 23c–3 and 3 under the Act as if it were an open- more than one class of senior security. make quarterly repurchase offers to its end investment company. Applicants state that the creation of shareholders or provide periodic 12. Applicants state that each Fund multiple classes of shares of the Funds liquidity with respect to its shares may impose an EWC on shares may be prohibited by section 18(c), as pursuant to rule 13e–4 under the submitted for repurchase that have been a class may have priority over another 3 Exchange Act. Any repurchase offers held less than a specified period and class as to payment of dividends made by the Funds will be made to all may waive the EWC for certain because shareholders of different classes holders of shares of each such Fund. categories of shareholders or would pay different fees and expenses. 9. Applicants represent that any asset- transactions to be established from time 2. Section 18(i) of the Act provides based service and distribution fees for to time. Applicants state that each of the that each share of stock issued by a each class of shares will comply with Funds will apply the EWC (and any registered management investment the provisions of NASD Rule 2830(d) waivers or scheduled variations of the company will be a voting stock and 4 (‘‘NASD Sales Charge Rule’’). EWC) uniformly to all shareholders in a have equal voting rights with every Applicants also represent that each given class and consistently with the other outstanding voting stock. Fund will disclose in its prospectus the requirements of rule 22d–1 under the Applicants state that multiple classes of fees, expenses and other characteristics Act as if the Funds were open-end shares of the Funds may violate section of each class of shares offered for sale investment companies. 18(i) of the Act because each class by the prospectus, as is required for 13. Each Fund operating as an interval would be entitled to exclusive voting open-end multiple class funds under fund pursuant to rule 23c–3 under the rights with respect to matters solely Form N–1A. As is required for open-end related to that class. funds, each Fund will disclose its 5 See Shareholder Reports and Quarterly Portfolio 3. Section 6(c) of the Act provides that expenses in shareholder reports, and Disclosure of Registered Management Investment the Commission may exempt any describe any arrangements that result in Companies, Investment Company Act Release No. 26372 (Feb. 27, 2004) (adopting release) (requiring person, security or transaction or any breakpoints in or elimination of sales open-end investment companies to disclose fund class or classes of persons, securities or expenses in shareholder reports); and Disclosure of transactions from any provision of the 3 Applicants submit that rule 23c–3 and Breakpoint Discounts by Mutual Funds, Investment Act, or from any rule or regulation Regulation M under the Exchange Act permit an Company Act Release No. 26464 (June 7, 2004) interval fund to make repurchase offers to (adopting release) (requiring open-end investment under the Act, if and to the extent such repurchase its shares while engaging in a companies to provide prospectus disclosure of exemption is necessary or appropriate continuous offering of its shares pursuant to Rule certain sales load information). in the public interest and consistent 415 under the Securities Act of 1933. 6 Fund of Funds Investments, Investment with the protection of investors and the 4 Any reference to the NASD Sales Charge Rule Company Act Rel. Nos. 26198 (Oct. 1, 2003) includes any successor or replacement rule that (proposing release) and 27399 (Jun. 20, 2006) purposes fairly intended by the policy may be adopted by the Financial Industry (adopting release). See also Rules 12d1–1, et seq. of and provisions of the Act. Applicants Regulatory Authority (‘‘FINRA’’). the Act. request an exemption under section 6(c)

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from sections 18(c) and 18(i) to permit impose EWCs on shares of the Funds of its shares through asset-based the Funds to issue multiple classes of submitted for repurchase that have been distribution fees. shares. held for less than a specified period. For the reasons stated above, 4. Applicants submit that the 5. Applicants state that the EWCs they applicants submit that the exemptions proposed allocation of expenses relating intend to impose are functionally requested under section 6(c) are to distribution and voting rights among similar to CDSLs imposed by open-end necessary and appropriate in the public multiple classes is equitable and will investment companies under rule 6c–10 interest and are consistent with the not discriminate against any group or under the Act. Rule 6c–10 permits open- protection of investors and the purposes class of shareholders. Applicants submit end investment companies to impose fairly intended by the policy and that the proposed arrangements would CDSLs, subject to certain conditions. provisions of the Act. Applicants further permit a Fund to facilitate the Applicants note that rule 6c–10 is submit that the relief requested distribution of its shares and provide grounded in policy considerations pursuant to section 23(c)(3) will be investors with a broader choice of supporting the employment of CDSLs consistent with the protection of shareholder services. Applicants assert where there are adequate safeguards for investors and will insure that applicants that the proposed closed-end the investor and state that the same do not unfairly discriminate against any investment company multiple class policy considerations support holders of the class of securities to be structure does not raise the concerns imposition of EWCs in the interval fund purchased. Finally, applicants state that underlying section 18 of the Act to any context. In addition, applicants state the Funds’ imposition of asset-based greater degree than open-end that EWCs may be necessary for the distribution fees is consistent with the investment companies’ multiple class distributor to recover distribution costs. provisions, policies and purposes of the structures that are permitted by rule Applicants represent that any EWC Act and does not involve participation 18f–3 under the Act. Applicants state imposed by the Funds will comply with on a basis different from or less that each Fund will comply with the rule 6c–10 under the Act as if the rule advantageous than that of other provisions of rule 18f–3 as if it were an were applicable to closed-end participants. open-end investment company. investment companies. The Funds will Applicants’ Condition Early Withdrawal Charges disclose EWCs in accordance with the Applicants agree that any order 1. Section 23(c) of the Act provides, requirements of Form N–1A concerning CDSLs. granting the requested relief will be in relevant part, that no registered subject to the following condition: closed-end investment company shall Asset-Based Distribution Fees Each Fund relying on the order will purchase securities of which it is the 1. Section 17(d) of the Act and rule comply with the provisions of rules 6c– issuer, except: (a) On a securities 10, 12b–1, 17d–3, 18f–3, 22d–1, and, exchange or other open market; (b) 17d–1 under the Act prohibit an affiliated person of a registered where applicable, 11a–3 under the Act, pursuant to tenders, after reasonable as amended from time to time, as if opportunity to submit tenders given to investment company, or an affiliated person of such person, acting as those rules applied to closed-end all holders of securities of the class to management investment companies, be purchased; or (c) under other principal, from participating in or effecting any transaction in connection and will comply with the NASD Sales circumstances as the Commission may Charge Rule, as amended from time to permit by rules and regulations or with any joint enterprise or joint arrangement in which the investment time, as if that rule applied to all closed- orders for the protection of investors. end management investment 2. Rule 23c–3 under the Act permits company participates unless the companies. a registered closed-end investment Commission issues an order permitting company (an ‘‘interval fund’’) to make the transaction. In reviewing For the Commission, by the Division of repurchase offers of between five and applications submitted under section Investment Management, under delegated twenty-five percent of its outstanding 17(d) and rule 17d–1, the Commission authority. shares at net asset value at periodic considers whether the participation of Robert W. Errett, intervals pursuant to a fundamental the investment company in a joint Deputy Secretary. policy of the interval fund. Rule 23c– enterprise or joint arrangement is [FR Doc. 2015–28696 Filed 11–10–15; 8:45 am] 3(b)(1) under the Act permits an interval consistent with the provisions, policies BILLING CODE 8011–01–P fund to deduct from repurchase and purposes of the Act, and the extent proceeds only a repurchase fee, not to to which the participation is on a basis exceed two percent of the proceeds, that different from or less advantageous than SECURITIES AND EXCHANGE is paid to the interval fund and is that of other participants. COMMISSION reasonably intended to compensate the 2. Rule 17d–3 under the Act provides [Investment Company Act Release No. fund for expenses directly related to the an exemption from section 17(d) and 31893; 812–14531] repurchase. rule 17d–1 to permit open-end 3. Section 23(c)(3) provides that the investment companies to enter into Forum Funds and Exceed Advisory Commission may issue an order that distribution arrangements pursuant to LLC; Notice of Application would permit a closed-end investment rule 12b–1 under the Act. Applicants company to repurchase its shares in request an order under section 17(d) and November 5, 2015. circumstances in which the repurchase rule 17d–1 under the Act to the extent AGENCY: Securities and Exchange is made in a manner or on a basis that necessary to permit the Fund to impose Commission (‘‘Commission’’). does not unfairly discriminate against asset-based distribution fees. Applicants ACTION: Notice of an application under any holders of the class or classes of have agreed to comply with rules 12b– section 6(c) of the Investment Company securities to be purchased. 1 and 17d–3 as if those rules applied to Act of 1940 (‘‘Act’’) for an exemption 4. Applicants request relief under closed-end investment companies, from section 15(a) of the Act and rule section 6(c), discussed above, and which they believe will resolve any 18f–2 under the Act, as well as from section 23(c)(3) from rule 23c–3 to the concerns that might arise in connection certain disclosure requirements in rule extent necessary for the Funds to with a Fund financing the distribution 20a-1 under the Act, Item 19(a)(3) of

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Form N-1A, Items 22(c)(1)(ii), may be obtained via the Commission’s (‘‘Sub-Advisory Agreements’’) and 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Web site by searching for the file materially amend existing Sub-Advisory Schedule 14A under the Securities number, or an applicant using the Agreements without obtaining the Exchange Act of 1934, and Sections 6– Company name box, at http:// shareholder approval required under 07(2)(a), (b), and (c) of Regulation S–X www.sec.gov/search/search.htm or by section 15(a) of the Act and rule 18f–2 (‘‘Disclosure Requirements’’). The calling (202) 551–8090. under the Act.3 Applicants also seek an requested exemption would permit an Summary of the Application exemption from the Disclosure investment adviser to hire and replace Requirements to permit a Subadvised certain sub-advisers without 1. The Adviser serves as the investment adviser to certain series of Series to disclose (as both a dollar shareholder approval and grant relief amount and a percentage of the from the Disclosure Requirements as the Trust (the ‘‘Series’’) pursuant to an Subadvised Series’ net assets): (a) The they relate to fees paid to the sub- investment advisory agreement with the advisers. Trust (the ‘‘Advisory Agreement’’).1 The aggregate fees paid to the Adviser and Adviser provides the Subadvised Series any Wholly-Owned Sub-Advisers; (b) APPLICANTS: Forum Funds (the with continuous and comprehensive the aggregate fees paid to Non-Affiliated ‘‘Trust’’), a Delaware statutory trust investment management services subject Sub-Advisers; and (c) the fee paid to registered under the Act as an open-end to the supervision of, and policies each Affiliated Sub-Adviser management investment company with established by, each Subadvised Series’ (collectively, ‘‘Aggregate Fee multiple series, and Exceed Advisory board of trustees (‘‘Board’’). The Disclosure’’). LLC (the ‘‘Adviser’’), a Delaware limited Advisory Agreement permits the 3. Applicants agree that any order liability company registered as an Adviser, subject to the approval of the granting the requested relief will be investment adviser under the Board, to delegate to one or more Sub- subject to the terms and conditions Investment Advisers Act of 1940 Advisers the responsibility to provide stated in the application. Such terms (together, the Trust and Adviser are the day-to-day portfolio investment and conditions provide for, among other ‘‘Applicants’’). management for all or a portion of the safeguards, appropriate disclosure to FILING DATES: The application was filed assets of each Subadvised Series, subject Subadvised Series’ shareholders and on August 11, 2015, and amended on to the supervision and direction of the October 8, 2015. Adviser.2 The Adviser will continue to notification about sub-advisory changes and enhanced Board oversight to protect HEARING OR NOTIFICATION OF HEARING: have overall responsibility for the the interests of the Subadvised Series’ An order granting the application will management and investment of the be issued unless the Commission orders assets of each Subadvised Series. The shareholders. a hearing. Interested persons may Adviser will hire, evaluate, allocate 4. Section 6(c) of the Act provides that request a hearing by writing to the assets to and oversee the Sub-Advisers, the Commission may exempt any Commission’s Secretary and serving including determining whether a Sub- person, security, or transaction or any applicants with a copy of the request, Adviser should be terminated, at all class or classes of persons, securities, or personally or by mail. Hearing requests times subject to the authority of the transactions from any provisions of the should be received by the Commission Board. Act, or any rule thereunder, if such by 5:30 p.m. on November 30, 2015, and 2. Applicants request an exemption to relief is necessary or appropriate in the permit the Adviser, subject to Board should be accompanied by proof of public interest and consistent with the approval, to hire Sub-Advisers pursuant service on the applicants, in the form of protection of investors and purposes to investment sub-advisory agreements an affidavit or, for lawyers, a certificate fairly intended by the policy and of service. Pursuant to rule 0–5 under provisions of the Act. Applicants the Act, hearing requests should state 1 Applicants request relief with respect to the named Applicants, any future Series of the Trust believe that the requested relief meets the nature of the writer’s interest, any and any other registered open-end management this standard because, as further facts bearing upon the desirability of a company or series thereof that intends to rely on the explained in the application, the requested order in the future and that: (a) Is advised hearing on the matter, the reason for the Advisory Agreements will remain request, and the issues contested. by the Adviser or its successor or by any entity controlling, controlled by, or under common subject to shareholder approval, while Persons who wish to be notified of a control with the Adviser or its successor (included the role of the Sub-Advisers is hearing may request notification by in the term ‘‘Adviser’’); (b) uses the multi-manager writing to the Commission’s Secretary. structure described in the application; and (c) substantially equivalent to that of complies with the terms and conditions of the individual portfolio managers, so that ADDRESSES: Secretary, U.S. Securities application (each, a ‘‘Subadvised Series’’). For requiring shareholder approval of Sub- and Exchange Commission, 100 F Street purposes of the requested order, ‘‘successor’’ is Advisory Agreements would impose NE., Washington, DC 20549–1090. limited to an entity that results from a Applicants: Zachary R. Tackett, Esq., reorganization into another jurisdiction or a change unnecessary delays and expenses on the Forum Funds, Three Canal Plaza, Suite in the type of business organization. Subadvised Series. Applicants believe 2 A ‘‘Sub-Adviser’’ for a Series is (1) an indirect that the requested relief from the 600, Portland, ME 04101, and Joseph or direct ‘‘wholly owned subsidiary’’ (as such term Halpern, Exceed Advisory LLC, 28 West is defined in section 2(a)(43) the Act) of the Adviser Disclosure Requirements meets this 44th Street, 16th Floor, New York, NY for that Series, or (2) a sister company of the standard because it will improve the 10036. Adviser for that Series that is an indirect or direct Adviser’s ability to negotiate fees paid wholly owned subsidiary of the same company that, FOR FURTHER INFORMATION CONTACT: indirectly or directly, wholly owns the Adviser to the Sub-Advisers that are more Courtney S. Thornton, Senior Counsel, (each of (1) and (2) a ‘‘Wholly-Owned Sub-Adviser’’ advantageous for the Subadvised Series. at (202) 551–6812, or Mary Kay Frech, and collectively, the ‘‘Wholly-Owned Sub- Advisers’’), or (3) an investment sub-adviser for that 3 The requested relief will not extend to any sub- Branch Chief, at (202) 551–6821 Series that is not an ‘‘affiliated person’’ (as such adviser, other than a Wholly-Owned Sub-Adviser, (Division of Investment Management, term is defined in section 2(a)(3) of the Act) of the Chief Counsel’s Office). Series or the Adviser, except to the extent that an who is an affiliated person, as defined in section 2(a)(3) of the Act, of the Subadvised Series or the SUPPLEMENTARY INFORMATION: affiliation arises solely because the sub-adviser The serves as a sub-adviser to one or more Series (each Adviser, other than by reason of serving as a sub- following is a summary of the a ‘‘Non-Affiliated Sub-Adviser’’ and collectively, adviser to one or more of the Subadvised Series application. The complete application the ‘‘Non-Affiliated Sub-Advisers’’). (‘‘Affiliated Sub-Adviser’’).

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For the Commission, by the Division of these services. The text of the proposed vendor to provide a wireless connection Investment Management, under delegated rule change is available on the to the Third Party Data through wireless authority. Exchange’s Web site at www.nyse.com, connections from the Exchange access Robert W. Errett, at the principal office of the Exchange, centers in Secaucus and Carteret, New Deputy Secretary. and at the Commission’s Public Jersey, to its data center in Mahwah, [FR Doc. 2015–28694 Filed 11–10–15; 8:45 am] Reference Room. New Jersey, through a series of towers 6 BILLING CODE 8011–01–P II. Self-Regulatory Organization’s equipped with wireless equipment. Statement of the Purpose of, and The wireless connectivity would be an Statutory Basis for, the Proposed Rule optional offering, offering an alternative SECURITIES AND EXCHANGE Change method for connectivity to the Third COMMISSION Party Data. In its filing with the Commission, the [Release No. 34–76374; File No. SR–NYSE– self-regulatory organization included A User that chooses this optional 2015–52] statements concerning the purpose of, service would be able to receive data feeds from NASDAQ and BATS Self-Regulatory Organizations; New and basis for, the proposed rule change and discussed any comments it received Exchange, Inc. over a wireless York Stock Exchange LLC; Notice of connection. To receive Third Party Data, Filing of Proposed Rule Change to the on the proposed rule change. The text of those statements may be examined at the User would enter into a contract Co-Location Services Offered by the with the relevant third party market, Exchange (the Offering of a Wireless the places specified in Item IV below. which would charge the User the Connection To Allow Users To Receive The Exchange has prepared summaries, applicable market data fees for the Third Market Data Feeds From Third Party set forth in sections A, B, and C below, Party Data. The Exchange would charge Markets) and To Reflect Changes to of the most significant parts of such the User fees for the wireless connection the Exchange’s Price List Related to statements. for the Third Party Data.7 These Services A. Self-Regulatory Organization's Statement of the Purpose of, and A User would be charged a $5,000 November 5, 2015. Statutory Basis for, the Proposed Rule non-recurring initial charge for each 1 Pursuant to Section 19(b)(1) of the Change wireless connection and a monthly Securities Exchange Act of 1934 (the recurring charge (‘‘MRC’’) that would ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 1. Purpose vary depending upon the feed that the notice is hereby given that, on October The Exchange proposes to change the User opts to receive. If a User purchased 23, 2015, New York Stock Exchange co-location 4 services offered by the two wireless connections, it would pay LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed Exchange to include a means for Users two non-recurring initial charges. The with the Securities and Exchange to receive market data feeds from third Exchange proposes to waive the first Commission (the ‘‘Commission’’) the party markets (the ‘‘Third Party Data’’) month’s MRC, to allow Users to test the proposed rule change as described in through a wireless connection.5 In receipt of the feed(s) for a month before Items I, II, and III below, which Items addition, this proposed rule change incurring any MRCs. have been prepared by the self- reflects changes to the Exchange’s Price The Exchange proposes that the regulatory organization. The List related to these co-location services. wireless connections would include the Commission is publishing this notice to The Exchange proposes to offer the use of one port for connectivity to the solicit comments on the proposed rule wireless connection to provide Users Third Party Data. A User will only change from interested persons. with an alternative means of connectivity for Third Party Data. require one port to connect to the Third I. Self-Regulatory Organization’s Wireless connections involve beaming Party Data, irrespective of how many of Statement of the Terms of Substance of signals through the air between the five wireless connections it orders. the Proposed Rule Change antennas that are within sight of one If a User that has more than one wireless The Exchange proposes to change the connection wishes to use more than one another. Because the signals travel a 8 co-location services offered by the straight, unimpeded line, and because port to connect to the Third Party Data, Exchange to include a means for co- light waves travel faster through air than the Exchange proposes to make such located Users to receive market data through glass (fiber optics), wireless additional ports available for a monthly feeds from third party markets through messages have lower latency than fee per port of $3,000. a wireless connection. In addition, the messages travelling through fiber optics. The Exchange proposes to revise its proposed rule change reflects changes to Under the proposed rule change, the Price List to reflect fees related to these the Exchange’s Price List related to Exchange would utilize a network connections and ports, as follows:

1 15 U.S.C. 78s(b)(1). from the Exchange. See Securities Exchange Act 119) (approving a proposed rule change to establish 2 15 U.S.C. 78a. Release No. 76008 (September 29, 2015), 80 FR a new optional wireless connectivity for collocated 3 17 CFR 240.19b–4. 60190 (October 5, 2015) (SR–NYSE–2015–40). As clients). 4 The Exchange initially filed rule changes specified in the Price List, a User that incurs co- 7 A User would only receive the Third Party Data relating to its co-location services with the location fees for a particular co-location service for which it had entered into a contract. For Securities and Exchange Commission pursuant thereto would not be subject to co-location example, a User that contracted with NASDAQ for (‘‘Commission’’) in 2010. See Securities Exchange fees for the same co-location service charged by the the NASDAQ Totalview-ITCH data feed but did not Act Release No. 62960 (September 21, 2010), 75 FR Exchange’s affiliates NYSE MKT LLC and NYSE contract to receive any other Third Party Data 59310 (September 27, 2010) (SR–NYSE–2010–56). Arca, Inc. See Securities Exchange Act Release No. would receive only the NASDAQ Totalview-ITCH The Exchange operates a data center in Mahwah, 70206 (August 15, 2013), 78 FR 51765 (August 21, data feed through its wireless connection. New Jersey (the ‘‘data center’’) from which it 2013) (SR–NYSE–2013–59). 8 For example, a User with two wireless provides co-location services to Users. 6 The NASDAQ Stock Market LLC (‘‘NASDAQ’’) connections for Third Party Data may opt to 5 For purposes of the Exchange’s co-location offers a similar wireless service. See Securities purchase an additional port in order to route the services, a ‘‘User’’ means any market participant Exchange Act Release No. 68735 (January 25, 2013), options and equity data it receives to different that requests to receive co-location services directly 78 FR 6842 (January 31, 2013) (SR–NASDAQ–2012– cabinets.

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Description Amount of charge

Wireless connection of BATS Pitch BZX Gig shaped data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $6,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of DirectEdge EDGX Gig shaped data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $6,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of NASDAQ Totalview-ITCH data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $8,500. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of NASDAQ BX Totalview-ITCH data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $6,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of NASDAQ Totalview-ITCH and BX Totalview- $5,000 per connection initial charge plus monthly charge per connec- ITCH data. tion of $12,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Port for wireless connection ...... $3,000 monthly charge per port, excluding first port.

There is limited bandwidth available Sponsored Participant or an agent fraudulent and manipulative acts and on the wireless connection for data thereof (e.g., a service bureau providing practices, to promote just and equitable feeds from third parties, and so the order entry services); (ii) use of the co- principles of trade, to foster cooperation Exchange has opted to offer only the location services proposed herein would and coordination with persons engaged Third Party Data, which are data feeds be completely voluntary and available in regulating, clearing, settling, that are in high demand from Users. The to all Users on a non-discriminatory processing information with respect to, wireless network offered by the basis; 11 and (iii) a User would only and facilitating transactions in Exchange, although constrained by incur one charge for the particular co- securities, to remove impediments to, bandwidth with respect to the number location service described herein, and perfect the mechanisms of, a free of feeds it can carry, can be made regardless of whether the User connects and open market and a national market available to an unlimited number of only to the Exchange or to the Exchange system and, in general, to protect Users. and one or both of its affiliates.12 investors and the public interest and The Exchange proposes to offer the The proposed change is not otherwise because it is not designed to permit wireless connection to provide Users intended to address any other issues unfair discrimination between with an alternative means of relating to co-location services and/or customers, issuers, brokers, or dealers. connectivity for Third Party Data. related fees, and the Exchange is not The Exchange believes that the Currently, Users can receive Third Party aware of any problems that Users would proposed services are not designed to Data from wireless networks offered by have in complying with the proposed permit unfair discrimination between third party vendors.9 Users can also change. customers, issuers, brokers, or dealers receive Third Party Data through other 2. Statutory Basis because the wireless connection for methods, including, for example, from Third Party Data would provide Users another User, through a The Exchange believes that the with an alternative means of telecommunications provider, or over proposed rule change is consistent with connectivity for Third Party Data. Users the internet protocol (‘‘IP’’) network.10 Section 6(b) of the Act,13 in general, and that do not opt to utilize the Exchange’s The wireless connection to the Third furthers the objectives of Sections proposed wireless connections would Party Data is expected to be available no 6(b)(5) of the Act,14 in particular, still be able to obtain Third Party Data later than March 1, 2016. The Exchange because it is designed to prevent through other methods, including, for will announce the date that the wireless example, from wireless networks offered connection to the Third Party Data will 11 As is currently the case, Users that receive co- by third party vendors, another User, be available through a customer notice. location services from the Exchange will not receive any means of access to the Exchange’s trading and through a telecommunications provider, As is the case with all Exchange co- execution systems that is separate from, or superior or over the IP network. Users that opt location arrangements, (i) neither a User to, that of other Users. In this regard, all orders sent to use wireless connections for Third nor any of the User’s customers would to the Exchange enter the Exchange’s trading and Party Data would not receive Third be permitted to submit orders directly to execution systems through the same order gateway, regardless of whether the sender is co-located in the Party Data that is not available to all the Exchange unless such User or data center or not. In addition, co-located Users do Users, as all market participants that customer is a member organization, a not receive any market data or data service product contract with the relevant third party that is not available to all Users, although Users that market for the Third Party Data may 9 receive co-location services normally would expect Currently, at least four third party vendors offer receive it. Users wireless network connections using wireless reduced latencies in sending orders to, and equipment installed on towers and buildings near receiving market data from, the Exchange. The Exchange believes that this the data center. 12 See SR–NYSE–2013–59, supra note 5 at 51766. removes impediments to, and perfects 10 The IP network is a local area network available The Exchange’s affiliates have also submitted the mechanisms of, a free and open in the data center. See Securities Exchange Act substantially the same proposed rule change to market and a national market system Release No. 74222 (February 6, 2015), 80 FR 7888 propose the changes described herein. See SR– (February 12, 2015) (SR–NYSE–2015–05) (notice of NYSEMKT–2015–85 and SR–NYSEArca–2015–99. and, in general, protects investors and filing and immediate effectiveness of proposed rule 13 15 U.S.C. 78f(b). the public interest because it would change to include IP network connections). 14 15 U.S.C. 78f(b)(5). provide Users with choices with respect

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to the form and optimal latency of the equal basis (i.e., the same products and connections would be able to obtain connectivity they use to receive Third services are available to all Users). All Third Party Data through other methods, Party Data, allowing a User that opts to Users that voluntarily select wireless including, for example, from another receive Third Party Data to select the connections and ports would be charged User, through a telecommunications connectivity and number of ports that the same amount for the same services provider, or over the IP network. In this better suit its needs, helping it tailor its and would have their first month MRC way, the proposed changes would data center operations to the for wireless connections waived. enhance competition by helping Users requirements of its business operations. For the reasons above, the proposed tailor their connectivity for Third Party The Exchange also believes that the changes do not unfairly discriminate Data to the needs of their business proposed rule change is consistent with between or among market participants operations by allowing them to select Section 6(b)(4) of the Act,15 in that are otherwise capable of satisfying the form and optimal latency of the particular, because it provides for the any applicable co-location fees, connectivity they use to receive Third equitable allocation of reasonable dues, requirements, terms and conditions Party Data that best suits their needs, fees, and other charges among its established from time to time by the helping them tailor their data center members, issuers and other persons Exchange. operations to the requirements of their using its facilities and does not unfairly Finally, the Exchange believes that it business operations. discriminate between customers, is subject to significant competitive The proposed wireless connection to forces, as described below in the issuers, brokers or dealers. the Third Party Data would traverse Overall, the Exchange believes that Exchange’s statement regarding the wireless connections through a series of the proposed change is reasonable burden on competition. towers equipped with wireless because the Exchange proposes to offer For these reasons, the Exchange equipment, including a pole on the wireless connection for Third Party Data believes that the proposal is consistent grounds of the data center. The described herein as a convenience to with the Act. proposed wireless network would have Users, but in doing so would incur B. Self-Regulatory Organization's exclusive rights to operate wireless certain costs, including costs related to Statement on Burden on Competition equipment on the data center pole. The the data center facility, hardware and Exchange will not sell rights to third equipment and costs related to In accordance with Section 6(b)(8) of personnel required for initial the Act,16 the Exchange believes that the parties to operate wireless equipment on installation and monitoring, support proposed rule change will not impose the pole, due to space limitations, and maintenance of such services. The any burden on competition that is not security concerns, and the interference costs associated with the wireless necessary or appropriate in furtherance that would arise between equipment connections are incrementally higher of the purposes of the Act because, in placed too closely together. In addition than fiber optics-based solutions due to addition to the proposed services being to space issues, there are contractual the expense of the wireless equipment, completely voluntary, they are available restrictions on the use of the roof that cost of installation and testing and to all Users on an equal basis (i.e. the the Exchange has determined would not ongoing maintenance of the network. same products and services are available be met if it offered space on the roof for The Exchange believes that the to all Users). third party wireless equipment. proposed pricing for the wireless The Exchange believes that allowing Moreover, access to the pole or roof is connection for Third Party Data is Users to receive Third Party Data not required for third parties to establish reasonable because it allows Users to through a wireless connection will not wireless networks that can compete select the Third Party Data connectivity impose any burden on competition that with the Exchange’s proposed service, option and number of ports that better is not necessary or appropriate in as witnessed by the existing wireless suit their needs. The fees also reflect the furtherance of the purposes of the Act networks currently serving Users. Based benefit received by Users in terms of because such access will satisfy User on the information available to it, the lower latency over the fiber optics demand for additional options for Exchange believes that its proposed option. The Exchange believes that the connectivity for Third Party Data. wireless connection would provide data proposed waiver of the first month’s Currently, Users can receive Third Party at the same or similar speed, and at the MRC is reasonable as it would allow Data from wireless networks offered by same or similar cost, as its proposed Users to test the receipt of the feed(s) for third party vendors. Based on the wireless connection, thereby enhancing a month before incurring any monthly information available to it, the Exchange competition.17 recurring fees and may act as an believes that its proposed wireless Finally, the Exchange notes that it incentive to Users to utilize the new connection would provide data at the operates in a highly competitive market service. same or similar speed and at the same in which market participants can The Exchange believes that the or similar cost as the existing wireless readily favor competing venues if they proposed change is equitable and not networks. Accordingly, the proposed deem fee levels at a particular venue to unfairly discriminatory because it will wireless connection for Third Party Data be excessive. In such an environment, result in fees being charged only to would provide Users with an additional the Exchange must continually review, Users that voluntarily select to receive wireless connectivity option, thereby and consider adjusting, its services and the corresponding services and because enhancing competition. related fees and credits to remain those services will be available to all The Exchange notes that the proposed competitive with other exchanges. For Users. Furthermore, the Exchange wireless connection would compete not the reasons described above, the believes that the services and fees just with other wireless connections, but Exchange believes that the proposed proposed herein are not unfairly also with fiber optic networks, which discriminatory and are equitably may be more attractive to some Users as 17 The Exchange notes that the distance of a allocated because, in addition to the they are more reliable and less wireless network provider’s wireless equipment services being completely voluntary, susceptible to weather conditions. Users from the User is only one factor in determining overall latency. Other factors include the number of they are available to all Users on an that do not opt to utilize wireless repeaters in the route, the number of switches the data has to travel through, and the millimeter wave 15 15 U.S.C. 78f(b)(4). 16 15 U.S.C. 78f(b)(8). and switch technology used.

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rule change reflects this competitive those that may be withheld from the I. Self-Regulatory Organization’s environment. public in accordance with the Statement of the Terms of the Substance provisions of 5 U.S.C. 552, will be of the Proposed Rule Change C. Self-Regulatory Organization's available for Web site viewing and Statement on Comments on the The Exchange proposes to change its printing in the Commission’s Public Proposed Rule Change Received From rules to provide that the co-location Reference Room, 100 F Street NE., Members, Participants, or Others services offered by the Exchange Washington, DC 20549, on official include 40 gigabit (‘‘Gb’’) internet No written comments were solicited business days between the hours of protocol (‘‘IP’’) network connections in or received with respect to the proposed 10:00 a.m. and 3:00 p.m. Copies of the the Exchange’s data center. The rule change. filing also will be available for Exchange proposes to amend the NYSE III. Date of Effectiveness of the inspection and copying at the principal MKT Equities Price List (‘‘Price List’’) Proposed Rule Change and Timing for office of the Exchange. All comments and the NYSE Amex Options Fee Commission Action received will be posted without change; Schedule (‘‘Fee Schedule’’) to the Commission does not edit personal Within 45 days of the date of implement fees for the new service. identifying information from The text of the proposed rule change publication of this notice in the Federal submissions. You should submit only Register or up to 90 days (i) as the is available on the Exchange’s Web site information that you wish to make at www.nyse.com, at the principal office Commission may designate if it finds available publicly. All submissions such longer period to be appropriate of the Exchange, and at the should refer to File Number SR–NYSE– Commission’s Public Reference Room. and publishes its reasons for so finding 2015–52 and should be submitted on or or (ii) as to which the self-regulatory before December 3, 2015. II. Self-Regulatory Organization’s organization consents, the Commission Statement of the Purpose of, and For the Commission, by the Division of will: Statutory Basis for, the Proposed Rule (A) By order approve or disapprove Trading and Markets, pursuant to delegated authority.18 Change the proposed rule change, or (B) institute proceedings to determine Robert W. Errett, In its filing with the Commission, the whether the proposed rule change Deputy Secretary. self-regulatory organization included should be disapproved. [FR Doc. 2015–28691 Filed 11–10–15; 8:45 am] statements concerning the purpose of, BILLING CODE 8011–01–P and basis for, the proposed rule change IV. Solicitation of Comments and discussed any comments it received Interested persons are invited to on the proposed rule change. The text submit written data, views, and SECURITIES AND EXCHANGE of those statements may be examined at arguments concerning the foregoing, COMMISSION the places specified in Item IV below. including whether the proposed rule The Exchange has prepared summaries, change is consistent with the Act. [Release No. 34–76373; File No. SR– set forth in sections A, B, and C below, NYSEMKT–2015–90] Comments may be submitted by any of of the most significant parts of such the following methods: Self-Regulatory Organizations; NYSE statements. Electronic Comments MKT LLC; Notice of Filing and A. Self-Regulatory Organization's Immediate Effectiveness of Proposed Statement of the Purpose of, and • Use the Commission’s Internet Rule Change To Provide That the Co- Statutory Basis for, the Proposed Rule comment form (http://www.sec.gov/ Location Services Offered by the Change rules/sro.shtml); or Exchange Include 40 Gigabit Internet • Send an email to rule-comments@ Protocol Network Connections in the 1. Purpose sec.gov. Please include File Number SR± Exchange’s Data Center and To Amend The Exchange proposes to change its NYSE±2015±52 on the subject line. the NYSE MKT Equities Price List and rules to provide that the co-location 4 Paper Comments the NYSE Amex Options Fee Schedule services offered by the Exchange • Send paper comments in triplicate To Implement Fees for the New Service include 40 Gb IP network connections to Brent J. Fields, Secretary, Securities in the Exchange’s data center. The November 5, 2015. Exchange proposes to amend the Price and Exchange Commission, 100 F Street Pursuant to Section 19(b)(1) 1 of the NE., Washington, DC 20549–1090. List and the Fee Schedule to implement Securities Exchange Act of 1934 (the fees for the new service. All submissions should refer to File ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 Currently, the Exchange’s co-location Number SR–NYSE–2015–52. This file notice is hereby given that on October services offer Users 5 access to two local number should be included on the 28, 2015, NYSE MKT LLC (the subject line if email is used. To help the ‘‘Exchange’’ or ‘‘NYSE MKT’’) filed with 4 The Exchange initially filed rule changes Commission process and review your the Securities and Exchange relating to its co-location services with the comments more efficiently, please use Commission (the ‘‘Commission’’) the Securities and Exchange Commission only one method. The Commission will (‘‘Commission’’) in 2010. See Securities Exchange proposed rule change as described in Act Release No. 62961 (September 21, 2010), 75 FR post all comments on the Commission’s Items I, II, and III below, which Items 59299 (September 27, 2010) (SR–NYSEAmex–2010– Internet Web site (http://www.sec.gov/ have been prepared by the self- 80) (the ‘‘Original Co-location Filing’’). The rules/sro.shtml). Copies of the regulatory organization. The Exchange operates a data center in Mahwah, New submission, all subsequent Jersey (the ‘‘data center’’) from which it provides Commission is publishing this notice to co-location services to Users. amendments, all written statements solicit comments on the proposed rule 5 For purposes of the Exchange’s co-location with respect to the proposed rule change from interested persons. services, a ‘‘User’’ means any market participant change that are filed with the that requests to receive co-location services directly from the Exchange. See Securities Exchange Act Commission, and all written 18 17 CFR 200.30–3(a)(12). Release No. 76009 (September 29, 2015), 80 FR communications relating to the 1 15 U.S.C. 78s(b)(1). 60213 (October 5, 2015) (SR–NYSEMKT–2015–67). proposed rule change between the 2 15 U.S.C. 78a. As specified in the Price List and the Fee Schedule, Commission and any person, other than 3 17 CFR 240.19b–4. a User that incurs co-location fees for a particular

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area networks available in the data transmission of data between Users and would provide a User more choices center: The IP network and the the Exchange for the IP Network than regarding the bandwidth of its IP Liquidity Center Network (‘‘LCN’’).6 IP for the LCN. The IP network provides network connections, allowing it to network access is currently available in Users that do not need the lower latency select the option that best corresponds 1 and 10 Gb capacities. The Exchange of the LCN with a less costly data center to its needs and is most cost-effective for also offers 1, 10, and 40 Gb LCN network option. Having another data that User. network access and LCN 10 Gb LX center network also provides Users with The 40 Gb IP network connection is network access.7 the option to create redundancy in their expected to be available no later than The IP network and LCN provide infrastructure. April 15, 2016. The Exchange will Users with access to the Exchange’s The proposed rule change would announce the date that the 40 Gb IP trading and execution systems and to allow Users to purchase 40 Gb IP network connection will be available the Exchange’s proprietary market data network connections in the data center. through a customer notice. products. The IP network also provides The offering of a 40 Gb IP network The Exchange proposes to establish Users with access to away market data connection in addition to the existing 1 the following fees for 40 Gb IP network products. There is greater latency in the and 10 Gb IP network connections connections:

Type of service Description Amount of charge

IP Network Access ...... 40 Gb circuit ...... $10,000 per connection initial charge plus $17,000 monthly per connection.

By comparison, the 1 Gb IP network 2. Statutory Basis Users that require lower latency levels connection costs $2,500 per connection may utilize LCN connections. initial charge plus $2,500 monthly per The Exchange believes that the The Exchange believes that the connection and the 10 Gb IP network proposed rule change is consistent with proposed service would remove connection costs $10,000 per Section 6(b) of the Act,10 in general, and impediments to, and perfect the connection initial charge plus $10,000 furthers the objectives of Sections mechanisms of, a free and open market monthly per connection. The 40 Gb LCN 6(b)(5) of the Act,11 in particular, and a national market system and, in circuit costs $15,000 per connection because it is designed to prevent general, protect investors and the public initial charge plus $20,000 monthly per fraudulent and manipulative acts and interest because the offering of a 40 Gb connection. practices, to promote just and equitable IP network connection in addition to the As is the case with all Exchange co- principles of trade, to foster cooperation existing 1 and 10 Gb IP network location arrangements, (i) neither a User and coordination with persons engaged connections would provide a User more nor any of the User’s customers would in regulating, clearing, settling, choices regarding the bandwidth of its be permitted to submit orders directly to processing information with respect to, IP network connections, allowing it to the Exchange unless such User or and facilitating transactions in select the option that best corresponds customer is a member organization, a securities, to remove impediments to, to its needs and is most cost-effective for Sponsored Participant or an agent and perfect the mechanisms of, a free that User. thereof (e.g., a service bureau providing and open market and a national market The Exchange also believes that the order entry services); (ii) use of the co- system and, in general, to protect proposed rule change is consistent with 12 location services proposed herein would investors and the public interest and Section 6(b)(4) of the Act, in be completely voluntary and available because it is not designed to permit particular, because it provides for the to all Users on a non-discriminatory unfair discrimination between equitable allocation of reasonable dues, 8 fees, and other charges among its basis; and (iii) a User would only incur customers, issuers, brokers, or dealers. one charge for the particular co-location member organizations, issuers and other service described herein, regardless of The Exchange believes that the persons using its facilities and does not whether the User connects only to the proposed 40 Gb IP network connection unfairly discriminate between Exchange or to the Exchange and one or is not designed to permit unfair customers, issuers, brokers or dealers. both of its affiliates.9 discrimination between customers, Overall, the Exchange believes that The proposed change is not otherwise issuers, brokers, or dealers because it the proposed fees for the proposed 40 intended to address any other issues would make a service available to Users Gb IP network connection are relating to co-location services and/or that require the increased IP network reasonable because the Exchange related fees, and the Exchange is not bandwidth, but Users that do not proposes to offer the service as a aware of any problems that Users would require the increased bandwidth could convenience to Users, but in doing so have in complying with the proposed continue to request an existing lower- will incur certain costs, including costs change. bandwidth IP network connection. related to the data center facility,

co-location service pursuant thereto would not be 7 See Original Co-location Filing, at 59299 and data center or not. In addition, co-located Users do subject to co-location fees for the same co-location Securities Exchange Act Release No. 70886 not receive any market data or data service product service charged by the Exchange’s affiliates New (November 15, 2013), 78 FR 69904 (November 21, that is not available to all Users, although Users that York Stock Exchange LLC and NYSE Arca, Inc. See 2013) (SR–NYSEMKT–2013–92) (notice of filing receive co-location services normally would expect Securities Exchange Act Release No. 70176 (August and immediate effectiveness of proposed rule reduced latencies in sending orders to, and 13, 2013), 78 FR 50471 (August 19, 2013) (SR– change to include LCN 10 Gb LX connection). receiving market data from, the Exchange. NYSEMKT–2013–67). 8 As is currently the case, Users that receive co- 9 See SR–NYSEMKT–2013–67, supra note 5 at 6 See Original Co-location Filing, at 59299 and location services from the Exchange will not receive 50471. The Exchange’s affiliates have also Securities Exchange Act Release No. 74220 any means of access to the Exchange’s trading and submitted the same proposed rule change to propose the changes described herein. See SR– (February 6, 2015), 80 FR 7894 (February 12, 2015) execution systems that is separate from, or superior NYSE–2015–54 and SR–NYSEArca–2015–105. (SR–NYSEMKT–2015–08) (notice of filing and to, that of other Users. In this regard, all orders sent 10 15 U.S.C. 78f(b). immediate effectiveness of proposed rule change to to the Exchange enter the Exchange’s trading and 11 include IP network connections). execution systems through the same order gateway, 15 U.S.C. 78f(b)(5). regardless of whether the sender is co-located in the 12 15 U.S.C. 78f(b)(4).

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hardware and equipment and costs be charged the same amount for the the Exchange must continually review, related to personnel required for initial service. and consider adjusting, its services and installation and ongoing monitoring, For the reasons above, the proposed related fees and credits to remain support and maintenance of such change would not unfairly discriminate competitive with other exchanges. For service. between or among market participants the reasons described above, the The Exchange further believes that the that are otherwise capable of satisfying Exchange believes that the proposed proposed change is reasonable because any applicable co-location fees, rule change reflects this competitive the proposed fees directly relate to the requirements, terms and conditions environment. level of services provided by the established from time to time by the C. Self-Regulatory Organization's Exchange and, in turn, received by the Exchange. User. In this regard, the fees proposed Finally, the Exchange believes that it Statement on Comments on the for 40 Gb IP network connections are is subject to significant competitive Proposed Rule Change Received From higher than, for example, the fees for 10 forces, as described below in the Members, Participants, or Others Exchange’s statement regarding the Gb IP network connections because No written comments were solicited costs for the initial purchase and burden on competition. For these reasons, the Exchange or received with respect to the proposed ongoing maintenance of the 40 IP rule change. network connections are generally believes that the proposal is consistent higher than those of the lower- with the Act. III. Date of Effectiveness of the bandwidth connections. However, these B. Self-Regulatory Organization's Proposed Rule Change and Timing for costs are not anticipated to be four times Statement on Burden on Competition Commission Action higher than the existing 10 Gb IP In accordance with Section 6(b)(8) of The Exchange has filed the proposed network connection. The Exchange 13 therefore notes that while the proposed the Act, the Exchange believes that the rule change pursuant to Section 15 bandwidth of the 40 Gb IP network proposed rule change will not impose 19(b)(3)(A)(iii) of the Act and Rule 16 connection is four times greater than the any burden on competition that is not 19b–4(f)(6) thereunder. Because the existing 10 Gb IP connection, the necessary or appropriate in furtherance proposed rule change does not: (i) proposed fees for the 40 Gb IP network of the purposes of the Act because, in Significantly affect the protection of connection are significantly less than addition to the proposed service being investors or the public interest; (ii) four times the fees for the 10 Gb IP completely voluntary, it will be impose any significant burden on connection. Specifically, the proposed available to all Users on an equal basis competition; and (iii) become operative initial charge of $10,000 is the same as (i.e. the same products and services are prior to 30 days from the date on which the initial charge for the existing 10 Gb available to all Users). it was filed, or such shorter time as the The Exchange believes that allowing IP network connection and the proposed Commission may designate, if Users to purchase 40 Gb IP network monthly recurring charge of $17,000 is consistent with the protection of connections will not impose any burden less than double the $10,000 monthly investors and the public interest, the on competition that is not necessary or charge for the existing 10 Gb IP network proposed rule change has become appropriate in furtherance of the connection. The Exchange believes that effective pursuant to Section 19(b)(3)(A) purposes of the Act because such this supports a finding that the of the Act and Rule 19b–4(f)(6)(iii) service will be available to Users that proposed pricing is reasonable because thereunder. require the increased IP network the Exchange anticipates realizing bandwidth, but Users that do not A proposed rule change filed under efficiencies as customers adopt higher- 17 require the increased bandwidth could Rule 19b–4(f)(6) normally does not bandwidth connections, and, in turn, continue to request an existing lower- become operative prior to 30 days after reflecting such efficiencies in the bandwidth IP network connection. The the date of the filing. However, pursuant pricing for such connections. 18 offering of a 40 Gb IP network to Rule 19b4(f)(6)(iii), the Commission As with fees for existing co-location connection in addition to the existing 1 may designate a shorter time if such services, the fees proposed herein and 10 Gb IP network connections action is consistent with the protection would be charged only to those Users would provide a User more choices of investors and the public interest. that voluntarily select the 40 Gb IP regarding the bandwidth of its IP At any time within 60 days of the network connection, which would be network connections, allowing it to filing of such proposed rule change, the available to all Users. Accordingly, the select the option that best corresponds Commission summarily may Exchange believes that the proposed to its needs and is most cost-effective for temporarily suspend such rule change if change is equitable and not unfairly that User. In addition, the Exchange it appears to the Commission that such discriminatory because it will result in believes that the proposed change will action is necessary or appropriate in the fees being charged only to Users that enhance competition, in that The public interest, for the protection of voluntarily select to receive the NASDAQ Stock Market LLC investors, or otherwise in furtherance of corresponding services and because (‘‘NASDAQ’’) similarly makes a 40 Gb the purposes of the Act. If the those services will be available to all fiber connection available to users of its Commission takes such action, the Users. Furthermore, the Exchange co-location facilities.14 Commission shall institute proceedings believes that the services and fees Finally, the Exchange notes that it under Section 19(b)(2)(B) 19 of the Act to proposed herein are not unfairly operates in a highly competitive market determine whether the proposed rule discriminatory and are equitably in which market participants can change should be approved or allocated because, in addition to the readily favor competing venues if they disapproved. services being completely voluntary, deem fee levels at a particular venue to they are available to all Users on an be excessive. In such an environment, 15 15 U.S.C. 78s(b)(3)(A)(iii). equal basis (i.e., the same products and 16 17 CFR 240.19b–4(f)(6). services are available to all Users). All 13 15 U.S.C. 78f(b)(8). 17 17 CFR 240.19b–4(f)(6). Users that voluntarily select the 14 See NASDAQ Rule 7034 for a description of 18 17 CFR 240.19b–4(f)(6)(iii). proposed 40 Gb IP network service will NASDAQ’s co-location services. 19 15 U.S.C. 78s(b)(2)(B).

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IV. Solicitation of Comments For the Commission, by the Division of II. Self-Regulatory Organization’s Trading and Markets, pursuant to delegated Statement of the Purpose of, and Interested persons are invited to authority.20 Statutory Basis for, the Proposed Rule submit written data, views, and Robert W. Errett, Change arguments concerning the foregoing, Deputy Secretary. In its filing with the Commission, the including whether the proposed rule [FR Doc. 2015–28690 Filed 11–10–15; 8:45 am] self-regulatory organization included change is consistent with the Act. BILLING CODE 8011–01–P statements concerning the purpose of, Comments may be submitted by any of and basis for, the proposed rule change the following methods: and discussed any comments it received Electronic Comments SECURITIES AND EXCHANGE on the proposed rule change. The text COMMISSION of those statements may be examined at • Use the Commission’s Internet the places specified in Item IV below. comment form (http://www.sec.gov/ [Release No. 34–76369; File No. SR–NYSE– The Exchange has prepared summaries, rules/sro.shtml); or 2015–54] set forth in sections A, B, and C below, • Send an email to rule- of the most significant parts of such [email protected]. Please include File Self-Regulatory Organizations; New statements. No. SR–NYSEMKT–2015–90 on the York Stock Exchange LLC; Notice of A. Self-Regulatory Organization's subject line. Filing and Immediate Effectiveness of Statement of the Purpose of, and Proposed Rule Change To Provide Statutory Basis for, the Proposed Rule Paper Comments That the Co-Location Services Offered Change • by the Exchange Include 40 Gigabit Send paper comments in triplicate 1. Purpose to Secretary, Securities and Exchange Internet Protocol Network Connections The Exchange proposes to change its Commission, 100 F Street NE., in the Exchange’s Data Center and To rules to provide that the co-location 4 Washington, DC 20549–1090. Amend the Exchange’s Price List To Implement Fees for the New Service services offered by the Exchange All submissions should refer to File No. include 40 Gb IP network connections SR–NYSEMKT–2015–90. This file November 5, 2015. in the Exchange’s data center. The number should be included on the Pursuant to Section 19(b)(1) 1 of the Exchange proposes to amend the Price subject line if email is used. To help the Securities Exchange Act of 1934 (the List to implement fees for the new Commission process and review your ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 service. comments more efficiently, please use Currently, the Exchange’s co-location notice is hereby given that on October 5 only one method. The Commission will services offer Users access to two local 28, 2015, New York Stock Exchange area networks available in the data post all comments on the Commission’s LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed Internet Web site (http://www.sec.gov/ center: the IP network and the Liquidity with the Securities and Exchange Center Network (‘‘LCN’’).6 IP network rules/sro.shtml). Copies of the Commission (the ‘‘Commission’’) the access is currently available in 1 and 10 submission, all subsequent proposed rule change as described in Gb capacities. The Exchange also offers amendments, all written statements Items I, II, and III below, which Items 1, 10, and 40 Gb LCN network access with respect to the proposed rule have been prepared by the self- and LCN 10 Gb LX network access.7 change that are filed with the regulatory organization. The Commission, and all written Commission is publishing this notice to 4 The Exchange initially filed rule changes communications relating to the solicit comments on the proposed rule relating to its co-location services with the proposed rule change between the Securities and Exchange Commission change from interested persons. (‘‘Commission’’) in 2010. See Securities Exchange Commission and any person, other than Act Release No. 62960 (September 21, 2010), 75 FR those that may be withheld from the I. Self-Regulatory Organization’s 59310 (September 27, 2010) (SR–NYSE–2010–56) public in accordance with the Statement of the Terms of the Substance (the ‘‘Original Co-location Filing’’). The Exchange of the Proposed Rule Change operates a data center in Mahwah, New Jersey (the provisions of 5 U.S.C. 552, will be ‘‘data center’’) from which it provides co-location available for Web site viewing and The Exchange proposes to provide services to Users. 5 printing in the Commission’s Public that the co-location services offered by For purposes of the Exchange’s co-location Reference Room, 100 F Street NE., services, a ‘‘User’’ means any market participant the Exchange include 40 gigabit (‘‘Gb’’) that requests to receive co-location services directly Washington, DC 20549 on official internet protocol (‘‘IP’’) network from the Exchange. See Securities Exchange Act business days between the hours of connections in the Exchange’s data Release No. 76008 (September 29, 2015), 80 FR 60190 (October 5, 2015) (SR–NYSE–2015–40). As 10:00 a.m. and 3:00 p.m. Copies of such center. The Exchange proposes to filing also will be available for specified in the Price List, a User that incurs co- amend the Exchange’s Price List (‘‘Price location fees for a particular co-location service inspection and copying at the principal List’’) to implement fees for the new pursuant thereto would not be subject to co-location office of the Exchange. All comments service. The text of the proposed rule fees for the same co-location service charged by the received will be posted without change; Exchange’s affiliates NYSE MKT LLC and NYSE change is available on the Exchange’s Arca, Inc. See Securities Exchange Act Release No. the Commission does not edit personal Web site at www.nyse.com, at the 70206 (August 15, 2013), 78 FR 51765 (August 21, identifying information from principal office of the Exchange, and at 2013) (SR–NYSE–2013–59). 6 See Original Co-location Filing, at 59311 and submissions. You should submit only the Commission’s Public Reference information that you wish to make Securities Exchange Act Release No. 74222 Room. (February 6, 2015), 80 FR 7888 (February 12, 2015) available publicly. All submissions (SR–NYSE–2015–05) (notice of filing and should refer to File No. SR–NYSEMKT– immediate effectiveness of proposed rule change to include IP network connections). 2015–90, and should be submitted on or 20 17 CFR 200.30–3(a)(12). 7 See Original Co-location Filing, at 59311 and 1 15 U.S.C.78s(b)(1). before December 3, 2015. Securities Exchange Act Release No. 70888 2 15 U.S.C. 78a. (November 15, 2013), 78 FR 69907 (November 21, 3 17 CFR 240.19b–4. Continued

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The IP network and LCN provide center network also provides Users with to its needs and is most cost-effective for Users with access to the Exchange’s the option to create redundancy in their that User. trading and execution systems and to infrastructure. The 40 Gb IP network connection is The proposed rule change would the Exchange’s proprietary market data expected to be available no later than products. The IP network also provides allow Users to purchase 40 Gb IP April 15, 2016. The Exchange will Users with access to away market data network connections in the data center. announce the date that the 40 Gb IP products. There is greater latency in the The offering of a 40 Gb IP network transmission of data between Users and connection in addition to the existing 1 network connection will be available the Exchange for the IP Network than and 10 Gb IP network connections through a customer notice. for the LCN. The IP network provides would provide a User more choices The Exchange proposes to establish Users that do not need the lower latency regarding the bandwidth of its IP the following fees for 40 Gb IP network of the LCN with a less costly data center network connections, allowing it to connections: network option. Having another data select the option that best corresponds

Type of service Description Amount of charge

IP Network Access ...... 40 Gb circuit ...... $10,000 per connection initial charge plus $17,000 monthly per connection.

By comparison, the 1 Gb IP network 6(b)(5) of the Act,11 in particular, IP network connections, allowing it to connection costs $2,500 per connection because it is designed to prevent select the option that best corresponds initial charge plus $2,500 monthly per fraudulent and manipulative acts and to its needs and is most cost-effective for connection and the 10 Gb IP network practices, to promote just and equitable that User. connection costs $10,000 per principles of trade, to foster cooperation The Exchange also believes that the connection initial charge plus $10,000 and coordination with persons engaged proposed rule change is consistent with monthly per connection. The 40 Gb LCN in regulating, clearing, settling, Section 6(b)(4) of the Act,12 in circuit costs $15,000 per connection processing information with respect to, particular, because it provides for the initial charge plus $20,000 monthly per and facilitating transactions in equitable allocation of reasonable dues, connection. securities, to remove impediments to, fees, and other charges among its As is the case with all Exchange co- and perfect the mechanisms of, a free members, issuers and other persons location arrangements, (i) neither a User and open market and a national market using its facilities and does not unfairly nor any of the User’s customers would system and, in general, to protect discriminate between customers, be permitted to submit orders directly to investors and the public interest and issuers, brokers or dealers. the Exchange unless such User or because it is not designed to permit Overall, the Exchange believes that customer is a member organization, a unfair discrimination between the proposed fees for the proposed 40 Sponsored Participant or an agent customers, issuers, brokers, or dealers. Gb IP network connection are thereof (e.g., a service bureau providing The Exchange believes that the reasonable because the Exchange order entry services); (ii) use of the co- proposed 40 Gb IP network connection proposes to offer the service as a location services proposed herein would is not designed to permit unfair convenience to Users, but in doing so be completely voluntary and available discrimination between customers, will incur certain costs, including costs to all Users on a non-discriminatory issuers, brokers, or dealers because it related to the data center facility, basis; 8 and (iii) a User would only incur would make a service available to Users hardware and equipment and costs one charge for the particular co-location that require the increased IP network related to personnel required for initial service described herein, regardless of bandwidth, but Users that do not installation and ongoing monitoring, whether the User connects only to the require the increased bandwidth could support and maintenance of such Exchange or to the Exchange and one or continue to request an existing lower- service. both of its affiliates.9 bandwidth IP network connection. The Exchange further believes that the The proposed change is not otherwise Users that require lower latency levels proposed change is reasonable because intended to address any other issues may utilize LCN connections. the proposed fees directly relate to the relating to co-location services and/or The Exchange believes that the level of services provided by the related fees, and the Exchange is not proposed service would remove Exchange and, in turn, received by the aware of any problems that Users would impediments to, and perfect the User. In this regard, the fees proposed have in complying with the proposed mechanisms of, a free and open market for 40 Gb IP network connections are change. and a national market system and, in higher than, for example, the fees for 10 general, protect investors and the public Gb IP network connections because 2. Statutory Basis interest because the offering of a 40 Gb costs for the initial purchase and The Exchange believes that the IP network connection in addition to the ongoing maintenance of the 40 IP proposed rule change is consistent with existing 1 and 10 Gb IP network network connections are generally Section 6(b) of the Act,10 in general, and connections would provide a User more higher than those of the lower- furthers the objectives of Sections choices regarding the bandwidth of its bandwidth connections. However, these

2013) (SR–NYSE–2013–73) (notice of filing and to the Exchange enter the Exchange’s trading and 9 See SR–NYSE–2013–59, supra note 5 at 51766. immediate effectiveness of proposed rule change to execution systems through the same order gateway, The Exchange’s affiliates have also submitted the include LCN 10 Gb LX connection). regardless of whether the sender is co-located in the same proposed rule change to propose the changes 8 As is currently the case, Users that receive co- data center or not. In addition, co-located Users do described herein. See SR–NYSEMKT–2015–90 and not receive any market data or data service product location services from the Exchange will not receive SR–NYSEArca–2015–105. that is not available to all Users, although Users that 10 any means of access to the Exchange’s trading and receive co-location services normally would expect 15 U.S.C. 78f(b). execution systems that is separate from, or superior reduced latencies in sending orders to, and 11 15 U.S.C. 78f(b)(5). to, that of other Users. In this regard, all orders sent receiving market data from, the Exchange. 12 15 U.S.C. 78f(b)(4).

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costs are not anticipated to be four times B. Self-Regulatory Organization's III. Date of Effectiveness of the higher than the existing 10 Gb IP Statement on Burden on Competition Proposed Rule Change and Timing for network connection. The Exchange Commission Action therefore notes that while the proposed In accordance with Section 6(b)(8) of bandwidth of the 40 Gb IP network the Act,13 the Exchange believes that the The Exchange has filed the proposed connection is four times greater than the proposed rule change will not impose rule change pursuant to Section 15 existing 10 Gb IP connection, the any burden on competition that is not 19(b)(3)(A)(iii) of the Act and Rule 16 proposed fees for the 40 Gb IP network necessary or appropriate in furtherance 19b–4(f)(6) thereunder. Because the connection are significantly less than of the purposes of the Act because, in proposed rule change does not: (i) four times the fees for the 10 Gb IP addition to the proposed service being Significantly affect the protection of connection. Specifically, the proposed completely voluntary, it will be investors or the public interest; (ii) initial charge of $10,000 is the same as available to all Users on an equal basis impose any significant burden on the initial charge for the existing 10 Gb (i.e. the same products and services are competition; and (iii) become operative IP network connection and the proposed available to all Users). prior to 30 days from the date on which monthly recurring charge of $17,000 is it was filed, or such shorter time as the The Exchange believes that allowing Commission may designate, if less than double the $10,000 monthly Users to purchase 40 Gb IP network charge for the existing 10 Gb IP network consistent with the protection of connections will not impose any burden investors and the public interest, the connection. The Exchange believes that on competition that is not necessary or this supports a finding that the proposed rule change has become appropriate in furtherance of the effective pursuant to Section 19(b)(3)(A) proposed pricing is reasonable because purposes of the Act because such the Exchange anticipates realizing of the Act and Rule 19b–4(f)(6)(iii) service will be available to Users that thereunder. efficiencies as customers adopt higher- require the increased IP network bandwidth connections, and, in turn, A proposed rule change filed under bandwidth, but Users that do not Rule 19b–4(f)(6) 17 normally does not reflecting such efficiencies in the require the increased bandwidth could pricing for such connections. become operative prior to 30 days after continue to request an existing lower- the date of the filing. However, pursuant As with fees for existing co-location bandwidth IP network connection. The 18 services, the fees proposed herein to Rule 19b4(f)(6)(iii), the Commission offering of a 40 Gb IP network may designate a shorter time if such would be charged only to those Users connection in addition to the existing 1 that voluntarily select the 40 Gb IP action is consistent with the protection and 10 Gb IP network connections of investors and the public interest. network connection, which would be would provide a User more choices available to all Users. Accordingly, the regarding the bandwidth of its IP At any time within 60 days of the Exchange believes that the proposed network connections, allowing it to filing of such proposed rule change, the Commission summarily may change is equitable and not unfairly select the option that best corresponds temporarily suspend such rule change if discriminatory because it will result in to its needs and is most cost-effective for it appears to the Commission that such fees being charged only to Users that that User. In addition, the Exchange action is necessary or appropriate in the voluntarily select to receive the believes that the proposed change will public interest, for the protection of corresponding services and because enhance competition, in that The investors, or otherwise in furtherance of those services will be available to all NASDAQ Stock Market LLC the purposes of the Act. If the Users. Furthermore, the Exchange (‘‘NASDAQ’’) similarly makes a 40 Gb Commission takes such action, the believes that the services and fees fiber connection available to users of its Commission shall institute proceedings proposed herein are not unfairly co-location facilities.14 discriminatory and are equitably under Section 19(b)(2)(B) 19 of the Act to allocated because, in addition to the Finally, the Exchange notes that it determine whether the proposed rule services being completely voluntary, operates in a highly competitive market change should be approved or they are available to all Users on an in which market participants can disapproved. readily favor competing venues if they equal basis (i.e., the same products and IV. Solicitation of Comments services are available to all Users). All deem fee levels at a particular venue to Users that voluntarily select the be excessive. In such an environment, Interested persons are invited to proposed 40 Gb IP network service will the Exchange must continually review, submit written data, views, and be charged the same amount for the and consider adjusting, its services and arguments concerning the foregoing, service. related fees and credits to remain including whether the proposed rule competitive with other exchanges. For For the reasons above, the proposed change is consistent with the Act. the reasons described above, the change would not unfairly discriminate Comments may be submitted by any of Exchange believes that the proposed between or among market participants the following methods: rule change reflects this competitive that are otherwise capable of satisfying Electronic Comments any applicable co-location fees, environment. • requirements, terms and conditions C. Self-Regulatory Organization's Use the Commission’s Internet established from time to time by the Statement on Comments on the comment form (http://www.sec.gov/ Exchange. Proposed Rule Change Received From rules/sro.shtml); or • Finally, the Exchange believes that it Members, Participants, or Others Send an email to rule-comments@ is subject to significant competitive sec.gov. Please include File No. SR– forces, as described below in the No written comments were solicited NYSE–2015–54 on the subject line. Exchange’s statement regarding the or received with respect to the proposed burden on competition. rule change. 15 15 U.S.C. 78s(b)(3)(A)(iii). 16 17 CFR 240.19b–4(f)(6). For these reasons, the Exchange 13 15 U.S.C. 78f(b)(8). 17 17 CFR 240.19b–4(f)(6). believes that the proposal is consistent 14 See NASDAQ Rule 7034 for a description of 18 17 CFR 240.19b–4(f)(6)(iii). with the Act. NASDAQ’s co-location services. 19 15 U.S.C. 78s(b)(2)(B).

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Paper Comments SECURITIES AND EXCHANGE forth in sections A, B, and C below, of the most significant aspects of such • COMMISSION Send paper comments in triplicate statements. to Secretary, Securities and Exchange [Release No. 34–76365; File No. SR– Commission, 100 F Street NE., NASDAQ–2015–130] A. Self-Regulatory Organization's Washington, DC 20549–1090. Statement of the Purpose of, and Self-Regulatory Organizations; The Statutory Basis for, the Proposed Rule All submissions should refer to File No. NASDAQ Stock Market LLC; Notice of Change SR–NYSE–2015–54. This file number Filing and Immediate Effectiveness of 1. Purpose should be included on the subject line Proposed Rule Change To Modify if email is used. To help the Chapter XV, Entitled ‘‘Options The Exchange proposes the following Commission process and review your Pricing,’’ at Section 2 Governing change to the NOM transaction fees set comments more efficiently, please use Pricing for NASDAQ Members forth at Chapter XV, Section 2 for only one method. The Commission will executing and routing standardized November 5, 2015. equity and index options under the post all comments on the Commission’s Pursuant to Section 19(b)(1) of the Penny Pilot 3 Options program. Internet Web site (http://www.sec.gov/ Securities Exchange Act of 1934 The proposed change is as follows: rules/sro.shtml). Copies of the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Fees for Removing Liquidity in Penny submission, all subsequent notice is hereby given that on October Pilot Options: the Exchange proposes to: amendments, all written statements 29, 2015, The NASDAQ Stock Market 1. Increase the Non-NOM Market with respect to the proposed rule LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed Maker4 fee from $0.50 to $0.55 per change that are filed with the with the Securities and Exchange Commission, and all written Commission (‘‘SEC’’ or ‘‘Commission’’) 3 The Penny Pilot was established in March 2008 communications relating to the the proposed rule change as described and has since been expanded and extended through June 30, 2016. See Securities Exchange Act Release proposed rule change between the in Items I, II, and III, below, which Items Nos. 57579 (March 28, 2008), 73 FR 18587 (April Commission and any person, other than have been prepared by the Exchange. 4, 2008) (SR–NASDAQ–2008–026) (notice of filing those that may be withheld from the The Commission is publishing this and immediate effectiveness establishing Penny notice to solicit comments on the Pilot); 60874 (October 23, 2009), 74 FR 56682 public in accordance with the (November 2, 2009) (SR–NASDAQ–2009–091) provisions of 5 U.S.C. 552, will be proposed rule change from interested (notice of filing and immediate effectiveness available for Web site viewing and persons. expanding and extending Penny Pilot); 60965 (November 9, 2009), 74 FR 59292 (November 17, printing in the Commission’s Public I. Self-Regulatory Organization’s 2009) (SR–NASDAQ–2009–097) (notice of filing Reference Room, 100 F Street NE., Statement of the Terms of Substance of and immediate effectiveness adding seventy-five Washington, DC 20549 on official the Proposed Rule Change classes to Penny Pilot); 61455 (February 1, 2010), 75 FR 6239 (February 8, 2010) (SR–NASDAQ– business days between the hours of The Exchange proposes to amend the 2010–013) (notice of filing and immediate 10:00 a.m. and 3:00 p.m. Copies of such Exchange’s transaction fees at Chapter effectiveness adding seventy-five classes to Penny filing also will be available for XV, Section 2 entitled ‘‘NASDAQ Pilot); 62029 (May 4, 2010), 75 FR 25895 (May 10, inspection and copying at the principal 2010) (SR–NASDAQ–2010–053) (notice of filing Options Market—Fees and Rebates,’’ and immediate effectiveness adding seventy-five office of the Exchange. All comments which governs pricing for NASDAQ classes to Penny Pilot); 65969 (December 15, 2011), received will be posted without change; members using the NASDAQ Options 76 FR 79268 (December 21, 2011) (SR–NASDAQ– the Commission does not edit personal Market (‘‘NOM’’), NASDAQ’s facility for 2011–169) (notice of filing and immediate effectiveness extension and replacement of Penny identifying information from executing and routing standardized Pilot); 67325 (June 29, 2012), 77 FR 40127 (July 6, submissions. You should submit only equity and index options. 2012) (SR–NASDAQ–2012–075) (notice of filing information that you wish to make While these amendments are effective and immediate effectiveness and extension and upon filing, the Exchange has replacement of Penny Pilot through December 31, available publicly. All submissions 2012); 68519 (December 21, 2012), 78 FR 136 should refer to File No. SR–NYSE– designated the proposed amendments to (January 2, 2013) (SR–NASDAQ–2012–143) (notice 2015–54, and should be submitted on or be operative on November 2, 2015. of filing and immediate effectiveness and extension before December 3, 2015. The text of the proposed rule change and replacement of Penny Pilot through June 30, is available on the Exchange’s Web site 2013); 69787 (June 18, 2013), 78 FR 37858 (June 24, For the Commission, by the Division of at http://nasdaq.cchwallstreet.com, at 2013) (SR–NASDAQ–2013–082) (notice of filing Trading and Markets, pursuant to delegated and immediate effectiveness and extension and the principal office of the Exchange, and replacement of Penny Pilot through December 31, 20 authority. at the Commission’s Public Reference 2013); 71105 (December 17, 2013), 78 FR 77530 Robert W. Errett, Room. (December 23, 2013) (SR–NASDAQ–2013–154) (notice of filing and immediate effectiveness and Deputy Secretary. II. Self-Regulatory Organization’s extension and replacement of Penny Pilot through [FR Doc. 2015–28693 Filed 11–10–15; 8:45 am] Statement of the Purpose of, and June 30, 2014); 79 FR 31151 (May 23, 2014), 79 FR 31151 (May 30, 2014) (SR–NASDAQ–2014–056) BILLING CODE 8011–01–P Statutory Basis for, the Proposed Rule (notice of filing and immediate effectiveness and Change extension and replacement of Penny Pilot through December 31, 2014); 73686 (December 2, 2014), 79 In its filing with the Commission, the FR 71477 (November 25, 2014) (SR–NASDAQ– Exchange included statements 2014–115) (notice of filing and immediate concerning the purpose of and basis for effectiveness and extension and replacement of the proposed rule change and discussed Penny Pilot through June 30, 2015) and 75283 (June 24, 2015), 80 FR 37347 (June 30, 2015) (SR– any comments it received on the NASDAQ–2015–063) (Notice of Filing and proposed rule change. The text of these Immediate Effectiveness of a Proposed Rule Change statements may be examined at the Relating to Extension of the Exchange’s Penny Pilot places specified in Item IV below. The Program and Replacement of Penny Pilot Issues That Have Been Delisted.) See also NOM Rules, Exchange has prepared summaries, set Chapter VI, Section 5. 4 The term ‘‘NOM Market Maker’’ or (‘‘M’’) is a 1 15 U.S.C. 78s(b)(1). Participant that has registered as a Market Maker on 20 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. NOM pursuant to Chapter VII, Section 2, and must

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contract for options overlying iShares 2. Statutory Basis lower transaction fee for NOM Market MSCI Emerging Markets (‘‘EEM’’), SPDR NASDAQ believes that the proposed Makers as compared to Non-NOM Gold Shares (‘‘GLD’’), iShares Russell rule change is consistent with the Market Makers should incent market 2000 ETF (‘‘IWM’’), PowerShares QQQ provisions of Section 6 of the Act,6 in participants and market makers on other (‘‘QQQ’’), and SPDR S&P 500 (‘‘SPY’’). general, and with Section 6(b)(4) and exchanges to register as NOM Market 2. This rule change is based on a rule 6(b)(5) of the Act,7 in particular, in that Makers, which will enhance the quality change by Miami International it provides for the equitable allocation of quoting and increase the volume of Securities Exchange LLC (‘‘MIAX’’) and of reasonable dues, fees and other contracts traded in options listed on is a competitive response to increase charges among members and issuers and NOM. To the extent that this purpose is fees in similar manner as MIAX only other persons using any facility or achieved, all the Exchange’s market with respect to Non-NOM Market Maker participants should benefit from the system which NASDAQ operates or pricing in certain symbols, as described improved market liquidity. Enhanced controls, and is not designed to permit above. market quality and increased unfair discrimination between This rule change is described in transaction volume that results from the greater detail below. customers, issuers, brokers, or dealers. Non-NOM Market Maker Fee for increase in NOM Market Maker activity on the Exchange will benefit all market Non-NOM Market Maker Fee for Removing Liquidity in Penny Pilot participants and improve competition Removing Liquidity in Penny Pilot Options Options The Exchange’s proposal to increase on the Exchange. The Exchange believes that the Non-NOM Market Maker Fee for The Exchange proposes, beginning establishing different pricing for options Removing Liquidity in Penny Pilot November 2, 2015, to increase the Non- overlying EEM, GLD, IWM, QQQ, and Options for options overlying EEM, NOM Market Maker Fee for Removing SPY options as compared to other GLD, IWM, QQQ, and SPY from $0.50 Liquidity in Penny Pilot Options from Penny Pilot Options is reasonable, $0.50 to $0.55 per contract for options to $0.55 per contract is reasonable to equitable, and not unfairly overlying EEM, GLD, IWM, QQQ, and provide lower fees to NOM Market discriminatory because EEM, GLD, SPY. The Exchange notes that the Fees Makers as compared to Non-NOM IWM, and SPY options are more liquid for Removing Liquidity for other Market Makers to encourage market options as compared to other Penny Participants in Penny Pilot Options will participants to become members and Pilot Options and the Exchange wants to remain the same.5 Also, Non-NOM register as NOM Market Makers. This incentivize market participants to Market Maker Fee for Removing rule change is also similar to current become members and register as NOM 8 Liquidity in Penny Pilot Options in all MIAX pricing. Market Makers versus otherwise other Penny Pilot Option symbols, The Exchange’s proposal to increase sending orders to the Exchange as a except EEM, GLD, IWM, QQQ, and SPY, the Non-NOM Market Maker Fee for Non-NOM Market Maker. will remain the same. Removing Liquidity in Penny Pilot The Exchange believes that this Options for options overlying EEM, B. Self-Regulatory Organization's incentive will encourage Non-NOM GLD, IWM, QQQ, and SPY from $0.50 Statement on Burden on Competition Market Makers to transact a greater to $0.55 per contract is equitable and The Exchange does not believe that number of orders on the Exchange. not unfairly discriminatory because the the proposed rule change will impose The purpose of the proposed rule increase applies equally to all Non- any burden on competition not change is to increase the Non-NOM NOM Market Makers. In addition, necessary or appropriate in furtherance Market Maker Fee For Removing maintaining a higher transaction fee for of the purposes of the Act. The proposal Liquidity in Penny Pilot Options for Non-NOM Market Makers versus NOM is designed to maintain lower NOM options overlying EEM, GLD, IWM, Market Markers is equitable and not Market Maker transaction fees for QQQ, and SPY, so that the transaction unfairly discriminatory because NOM options overlying EEM, GLD, IWM, fees for NOM Market Makers in options Market Markers on the Exchange have QQQ, and SPY as compared to Non- overlying EEM, GLD, IWM, QQQ, and enhanced quoting obligations that are NOM Market Makers. To the extent that SPY remain lower as compared to Non- not applicable to Non-NOM Market there is additional competitive burden NOM Market Makers. The Exchange Makers.9 on Non-NOM Market Makers, the proposes to add a new note ‘‘2’’ to In addition, charging non-members Exchange believes that this is Chapter XV, Section (2)(1) which states, higher transaction fees is a common appropriate because charging non- ‘‘The Exchange will assess Non-NOM practice amongst exchanges because members higher transaction fees is a Market Makers a $0.55 per contract Fee members are subject to other fees and common practice amongst exchanges for Removing Liquidity in Penny Pilot dues associated with their membership and members are subject to other fees Options in the following symbols: EEM, to the Exchange that do not apply to and dues associated with their GLD, IWM, QQQ, and SPY.’’ The non-members. The proposed membership to the Exchange that do not Exchange notes that maintaining this fee differentiation as between Non-NOM apply to non-members. The proposed differential encourages market Market Makers, NOM Market Makers, differentiation as between Non-NOM participants to become members and and other market participants Market Makers, NOM Market Makers, register as NOM Market Makers versus recognizes the differing contributions and other market participants otherwise sending orders to the made to the liquidity and trading recognizes the differing contributions Exchange as a an away market maker. environment on the Exchange by these made to the liquidity and trading market participants. Maintaining a environment on the Exchange by these also remain in good standing pursuant to Chapter market participants. VII, Section 4. In order to receive NOM Market 6 Maker pricing in all securities, the Participant must 15 U.S.C. 78f. Maintaining a lower transaction fee be registered as a NOM Market Maker in at least one 7 15 U.S.C. 78f(b)(4) and (5). for NOM Market Makers should incent security. 8 See MIAX Options Fee Schedule. market participants and market makers 9 5 Customers, Professionals, Firms, NOM Market See NOM Rules at Chapter VII, Section 6. On a on other exchanges to register as NOM Makers and Broker-Dealers will continue to be daily basis, a NOM Market Maker must make assessed a $0.50 per contract Fee for Removing markets consistent with the applicable quoting Market Makers on the Exchange, which Liquidity in Penny Pilot Options. requirements on a continuous basis. will enhance the quality of quoting and

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increase the volume of contracts traded Paper Comments SECURITIES AND EXCHANGE in options listed on NOM. To the extent • COMMISSION that this purpose is achieved, all the Send paper comments in triplicate to Brent J. Fields, Secretary, Securities [Release No. 34–76363; File No. SR– Exchange’s market participants should NASDAQ–2015–127] benefit from the improved market and Exchange Commission, 100 F Street liquidity. Enhanced market quality and NE., Washington, DC 20549–1090. Self-Regulatory Organizations; The increased transaction volume that All submissions should refer to File NASDAQ Stock Market LLC; Notice of results from the anticipated increase in Number SR±NASDAQ±2015±130. This Filing and Immediate Effectiveness of order flow directed to the Exchange will file number should be included on the Proposed Rule Change To Modify benefit all market participants and subject line if email is used. To help the Chapter XV, Entitled ‘‘Options improve competition on the Exchange. Commission process and review your Pricing,’’ at Section 2 Governing The Exchange notes that it operates in comments more efficiently, please use Pricing for NASDAQ Members a highly competitive market in which only one method. The Commission will market participants can readily favor November 5, 2015. competing venues if they deem fee post all comments on the Commission’s Pursuant to Section 19(b)(1) of the levels at a particular venue to be Internet Web site (http://www.sec.gov/ Securities Exchange Act of 1934 excessive. In such an environment, the rules/sro.shtml). Copies of the (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Exchange must continually adjust its submission, all subsequent notice is hereby given that on October fees to remain competitive with other amendments, all written statements 23, 2015, The NASDAQ Stock Market exchanges and to attract order flow. The with respect to the proposed rule LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed Exchange believes that the proposal change that are filed with the with the Securities and Exchange reflects this competitive environment. Commission, and all written Commission (‘‘SEC’’ or ‘‘Commission’’) communications relating to the the proposed rule change as described C. Self-Regulatory Organization's proposed rule change between the in Items I, II, and III below, which Items Statement on Comments on the Commission and any person, other than have been prepared by the Exchange. Proposed Rule Change Received From those that may be withheld from the The Commission is publishing this Members, Participants, or Others public in accordance with the notice to solicit comments on the No written comments were either provisions of 5 U.S.C. 552, will be proposed rule change from interested solicited or received. available for Web site viewing and persons. III. Date of Effectiveness of the printing in the Commission’s Public I. Self-Regulatory Organization’s Proposed Rule Change and Timing for Reference Room, 100 F Street, NE., Statement of the Terms of Substance of Commission Action Washington, DC 20549, on official the Proposed Rule Change business days between the hours of The foregoing rule change has become The Exchange proposes to amend the 10:00 a.m. and 3:00 p.m. Copies of the Exchange’s transaction fees at Chapter effective pursuant to Section filing also will be available for 19(b)(3)(A)(ii) of the Act.10 XV, Section 2 entitled ‘‘NASDAQ inspection and copying at the principal Options Market—Fees and Rebates,’’ At any time within 60 days of the office of the Exchange. All comments filing of the proposed rule change, the which governs pricing for NASDAQ received will be posted without change; Commission summarily may members using the NASDAQ Options the Commission does not edit personal temporarily suspend such rule change if Market (‘‘NOM’’), NASDAQ’s facility for it appears to the Commission that such identifying information from executing and routing standardized action is: (i) Necessary or appropriate in submissions. You should submit only equity and index options. While these amendments are effective the public interest; (ii) for the protection information that you wish to make upon filing, the Exchange has of investors; or (iii) otherwise in available publicly. All submissions designated the proposed amendments to furtherance of the purposes of the Act. should refer to File Number SR± NASDAQ±2015±130 and should be be operative on November 2, 2015. If the Commission takes such action, the The text of the proposed rule change Commission shall institute proceedings submitted on or before December 3, 2015. is available on the Exchange’s Web site to determine whether the proposed rule at http://nasdaq.cchwallstreet.com, at should be approved or disapproved. For the Commission, by the Division of the principal office of the Exchange, and IV. Solicitation of Comments Trading and Markets, pursuant to delegated at the Commission’s Public Reference authority.11 Room. Interested persons are invited to Robert W. Errett, submit written data, views, and II. Self-Regulatory Organization’s arguments concerning the foregoing, Deputy Secretary. Statement of the Purpose of, and including whether the proposed rule [FR Doc. 2015–28685 Filed 11–10–15; 8:45 am] Statutory Basis for, the Proposed Rule change is consistent with the Act. BILLING CODE 8011–01–P Change Comments may be submitted by any of In its filing with the Commission, the the following methods: Exchange included statements Electronic Comments concerning the purpose of and basis for the proposed rule change and discussed • Use the Commission’s Internet any comments it received on the comment form (http://www.sec.gov/ proposed rule change. The text of these rules/sro.shtml); or statements may be examined at the • Send an email to rule-comments@ places specified in Item IV below. The sec.gov. Please include File Number SR– Exchange has prepared summaries, set NASDAQ–2015–130 on the subject line. 1 15 U.S.C. 78s(b)(1). 10 15 U.S.C. 78s(b)(3)(A)(ii). 11 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.

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forth in sections A, B, and C below, of 2. Removes the Fees for Removing Exchange believes that these fee the most significant aspects of such liquidity in SPY,4 which will be reductions will benefit market statements. equivalent to other Fees for Removing participants and encourage them to send Liquidity in Penny Pilot Options. greater order flow to NOM. A. Self-Regulatory Organization's 3. Renumber current note ‘‘3’’ as note Statement of the Purpose of, and The Exchange also proposes to ‘‘1’’ in Chapter XX [sic], Section 2(1). remove the current fees listed in Statutory Basis for, the Proposed Rule Rebate to Add Liquidity in Penny Pilot Change Chapter XV, Section 2(1) for executions Options: the Exchange proposes to in SPY, as these fees will now be the 1. Purpose 1. Remove note ‘‘d’’ of Chapter XV, same fees assessed for all other Penny Section 2(1) because this incentive to The Exchange proposes the following Pilot Options and are simply redundant reduce certain Fees for Removing two changes to the NOM transaction with the proposed changes herein. Liquidity in Penny Pilot Options is no fees set forth at Chapter XV, Section 2 Specifically, the fees assessed for longer relevant as those fees are being for executing and routing standardized executions in SPY will remain $0.48 per reduced herein. contact for Customer and $0.50 per equity and index options under the 2. Amend note ‘‘e’’ of Chapter XV, Penny Pilot 3 and Non-Penny Pilot contract for all other Participants, the Section 2(1) to reduce one of the same fees proposed herein for all other options program. incentives being offered to Participants The proposed changes are as follows: Penny Pilot Options. that qualify for Tier 8 of the Customer Fees for Removing Liquidity in Penny The Exchange also proposes to and Professional Penny Pilot Options Pilot Options: the Exchange proposes to: renumber current note ‘‘3’’ as note ‘‘1’’ Rebates to Add Liquidity and amend 1. Decrease fees from $0.54 to $0.50 in Chapter XX [sic], Section 2(1) as qualifications for the rebate to ‘‘in a per contract for all Participant categories notes ‘‘1’’ and ‘‘2’’ were previously other than Customer, which remains at month.’’ 3. Renumber current note ‘‘e’’ as note eliminated. $0.48. ‘‘c’’ in Chapter XV, Section 2(1). Change 2—Rebate To Add Liquidity in

3 Each specific change is described in Penny Pilot Options The Penny Pilot was established in March 2008 greater detail below. and has since been expanded and extended through The Exchange is proposing to remove June 30, 2016. See Securities Exchange Act Release Nos. 57579 (March 28, 2008), 73 FR 18587 (April Change 1—Fees for Removing Liquidity note ‘‘d’’ of Chapter XV, Section 2(1) 4, 2008) (SR–NASDAQ–2008–026) (notice of filing in Penny Pilot Options because this incentive to reduce certain and immediate effectiveness establishing Penny Fees for Removing Liquidity in Penny Pilot); 60874 (October 23, 2009), 74 FR 56682 The Exchange proposes, beginning (November 2, 2009) (SR–NASDAQ–2009–091) November 2, 2015, to decrease from Pilot Options is no longer relevant as (notice of filing and immediate effectiveness $0.54 to $0.50 per contract the Fees for those fees are being reduced. Note ‘‘d’’ expanding and extending Penny Pilot); 60965 Removing Liquidity in Penny Pilot currently states: (November 9, 2009), 74 FR 59292 (November 17, 2009) (SR–NASDAQ–2009–097) (notice of filing Options for all Participant categories Participants that qualify for Customer or 5 and immediate effectiveness adding seventy-five other than Customer, which will Professional Rebate to Add Liquidity Tier 8 classes to Penny Pilot); 61455 (February 1, 2010), remain unchanged at $0.48. This will in a given month will be assessed a 75 FR 6239 (February 8, 2010) (SR–NASDAQ– represent a decrease of $0.04 per Professional, Firm, Non-NOM Market Maker, 2010–013) (notice of filing and immediate contract of liquidity removed in the NOM Market Maker or Broker-Dealer Fee for effectiveness adding seventy-five classes to Penny Removing Liquidity in Penny Pilot Options Pilot); 62029 (May 4, 2010), 75 FR 25895 (May 10, Professional,6 Firm,7 NOM Market of $0.50 per contract 2010) (SR–NASDAQ–2010–053) (notice of filing Maker,8 Non-NOM Market Maker,9 and and immediate effectiveness adding seventy-five Broker Dealer 10 categories. The The Exchange’s proposal in Change 1 classes to Penny Pilot); 65969 (December 15, 2011), 76 FR 79268 (December 21, 2011) (SR–NASDAQ– would reduce the Fees for Removing 4 ® ® 2011–169) (notice of filing and immediate SPDR S&P 500 ETF Trust. Liquidity in Penny Pilot Options for effectiveness [sic] extension and replacement of 5 The term ‘‘Customer’’ applies to any transaction Professionals, Firms, NOM Market Penny Pilot); 67325 (June 29, 2012), 77 FR 40127 that is identified by a Participant for clearing in the Makers, Non-NOM Market Makers, and (July 6, 2012) (SR–NASDAQ–2012–075) (notice of Customer range at The Options Clearing filing and immediate effectiveness and extension Corporation (‘‘OCC’’) which is not for the account Broker Dealers to $0.50 per contract. and replacement of Penny Pilot through December of [sic] broker or dealer or for the account of a This incentive would no longer be 31, 2012); 68519 (December 21, 2012), 78 FR 136 ‘‘Professional’’ (as that term is defined in Chapter relevant and the Exchange is therefore (January 2, 2013) (SR–NASDAQ–2012–143) (notice I, Section 1(a)(48)). 6 proposing to remove note ‘‘d.’’ of filing and immediate effectiveness and extension The term ‘‘Professional’’ means any person or and replacement of Penny Pilot through June 30, entity that (i) is not a broker or dealer in securities, The Exchange also proposes to amend 2013); 69787 (June 18, 2013), 78 FR 37858 (June 24, and (ii) places more than 390 orders in listed note ‘‘e’’ of Chapter XV, Section 2(1) to 2013) (SR–NASDAQ–2013–082) (notice of filing options per day on average during a calendar month reduce one of the incentives being and immediate effectiveness and extension and for its own beneficial account(s) pursuant to replacement of Penny Pilot through December 31, Chapter I, Section 1(a)(48). All Professional orders offered to Participants that qualify for 2013); 71105 (December 17, 2013), 78 FR 77530 shall be appropriately marked by Participants. Tier 8 of the Customer and Professional (December 23, 2013) (SR–NASDAQ–2013–154) 7 The term ‘‘Firm’’ or (‘‘F’’) applies to any Penny Pilot Options Rebates to Add (notice of filing and immediate effectiveness and transaction that is identified by a Participant for Liquidity.11 Note ‘‘e’’ currently states: extension and replacement of Penny Pilot through clearing in the Firm range at OCC. June 30, 2014); 79 FR 31151 [sic] (May 23, 2014), 8 The term ‘‘NOM Market Maker’’ or (‘‘M’’) is a 79 FR 31151 (May 30, 2014) (SR–NASDAQ–2014– Participant that has registered as a Market Maker on other transaction fees applicable within a particular 056) (notice of filing and immediate effectiveness NOM pursuant to Chapter VII, Section 2, and must category. and extension and replacement of Penny Pilot also remain in good standing pursuant to Chapter 11 Participant adds Customer, Professional, Firm, through December 31, 2014); 73686 (December 2, VII, Section 4. In order to receive NOM Market Non-NOM Market Maker and/or Broker-Dealer 2014), 79 FR 71477 (November 25, 2014) (SR– Maker pricing in all securities, the Participant must liquidity in Penny Pilot Options and/or Non-Penny NASDAQ–2014–115) (notice of filing and be registered as a NOM Market Maker in at least one Pilot Options above 0.75% or more of total industry immediate effectiveness and extension and security. customer equity and ETF option ADV contracts per replacement of Penny Pilot through June 30, 2015) 9 The term ‘‘Non-NOM Market Maker’’ or (‘‘O’’) is day in a month or Participant adds (1) Customer and 75283 (June 24, 2015), 80 FR 37347 (June 30, a registered market maker on another options and/or Professional liquidity in Penny Pilot Options 2015) (SR–NASDAQ–2015–063) (Notice of Filing exchange that is not a NOM Market Maker. A Non- and/or Non-Penny Pilot Options of 30,000 or more and Immediate Effectiveness of a Proposed Rule NOM Market Maker must append the proper Non- contracts per day in a month, (2) the Participant has Change Relating to Extension of the Exchange’s NOM Market Maker designation to orders routed to certified for the Investor Support Program set forth Penny Pilot Program and Replacement of Penny NOM. in Rule 7014, and (3) the Participant qualifies for Pilot Issues That Have Been Delisted.) See also 10 The term ‘‘Broker-Dealer’’ or (‘‘B’’) applies to rebates under the Qualified Market Maker (‘‘QMM’’) NOM Rules, Chapter VI, Section 5. any transaction which is not subject to any of the Program set forth in Rule 7014.

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e Participants that [sic] add Customer, facilities during a month in equity securities, Removing Liquidity of $0.50 per Professional, Firm, Non-NOM Market Maker excluding executed orders with a size of less contract. Customers would be assessed and/or Broker-Dealer liquidity in Penny Pilot than one round lot. For purposes of the lowest Penny Pilot Options Fee for Options and/or Non-Penny Pilot Options of calculating Consolidated Volume and the Removing Liquidity of $0.48 per 1.15% or more of total industry customer extent of an equity member’s trading activity, equity and ETF option ADV contracts per day expressed as a percentage of or ratio to contract. Customer order flow enhances in a month will receive an additional $0.02 Consolidated Volume, the date of the annual liquidity on the Exchange for the benefit per contract Penny Pilot Options Customer reconstitution of the Russell Investments of all market participants and benefits Rebate to Add Liquidity for each transaction Indexes shall be excluded from both total all market participants by providing which adds liquidity in Penny Pilot Options Consolidated Volume and the member’s more trading opportunities, which in that month; or (2) add Customer, trading activity. attracts market makers. An increase in Professional, Firm, Non-NOM Market Maker the activity of these market participants and/or Broker-Dealer liquidity in Penny Pilot The Exchange proposes to reduce this incentive from $0.05 to $0.03 per in turn facilitates tighter spreads, which Options and/or Non-Penny Pilot Options of may cause an additional corresponding 1.40% or more of total industry customer contract and amend the time period of equity and ETF option ADV contracts per day October 22, 2015 through October 30, increase in order flow from other market in a month will receive an additional $0.05 2015 to ‘‘in a month.’’ The Exchange participants. per contract Penny Pilot Options Customer filed a mid-month amendment for The elimination of the SPY Fees for Rebate to Add Liquidity for each transaction October 2015 which necessitated this Removing Liquidity in Penny Pilot which adds liquidity in Penny Pilot Options rule text. This text is not necessary Options is reasonable because these fees in that month; or (3) (a) add Customer, will be the same as the Fees for Professional, Firm, Non-NOM Market Maker going forward and will revert to the 12 Removing Liquidity in Penny Pilot and/or Broker-Dealer liquidity in Penny Pilot standard ‘‘in a month.’’ The Exchange believes that despite the decrease, this Options for all other Penny Pilot Options and/or Non-Penny Pilot Options Options. The pricing would be incentive will continue to encourage above 0.85% of total industry customer redundant. equity and ETF option ADV contracts per day market participants to send additional The elimination of the SPY Fees for from October 22, 2015 through October 30, order flow to achieve this incentive. Removing Liquidity in Penny Pilot 2015 and (b) has added liquidity in all The Exchange also proposes to Options is equitable and not unfairly securities through one or more of its Nasdaq renumber current note ‘‘e’’ as note ‘‘c’’ discriminatory because the Exchange Market Center MPIDs that represent 1.00% or in Chapter XV, Section 2(1) as note ‘‘c’’ more of Consolidated Volume from October would uniformly assess all non- was previously eliminated. 22, 2015 through October 30, 2015 will Customers a SPY Penny Pilot Options receive an additional $0.05 per contract 2. Statutory Basis Fee for Removing Liquidity of $0.50 per Penny Pilot Options Customer Rebate to Add NASDAQ believes that the proposed contract, as is the case today and Liquidity for each transaction which adds Customers would continue to be liquidity in Penny Pilot Options from rule change is consistent with the October 22, 2015 through October 30, 2015. provisions of Section 6 of the Act,13 in assessed the lowest Penny Pilot Options Consolidated Volume shall mean the total general, and with Section 6(b)(4) and Fee for Removing Liquidity of $0.48 per consolidated volume reported to all 6(b)(5) of the Act,14 in particular, in that contract. Customer order flow enhances consolidated transaction reporting plans by it provides for the equitable allocation liquidity on the Exchange for the benefit all exchanges and trade reporting facilities of reasonable dues, fees and other of all market participants and benefits during a month in equity securities, charges among members and issuers and all market participants by providing excluding executed orders with a size of less more trading opportunities, which than one round lot. For purposes of other persons using any facility or system which NASDAQ operates or attracts market makers. calculating Consolidated Volume and the The Exchange’s proposal to renumber extent of an equity member’s trading activity, controls, and is not designed to permit expressed as a percentage of or ratio to unfair discrimination between current note ‘‘3’’ as note ‘‘1’’ in Chapter Consolidated Volume, the date of the annual customers, issuers, brokers, or dealers. XX [sic], Section 2(1) is reasonable, reconstitution of the Russell Investments equitable and not unfairly Indexes shall be excluded from both total Change 1—Fees for Removing Liquidity discriminatory because it will add order Consolidated Volume and the member’s in Penny Pilot Options to the pricing schedule. trading activity. Decreasing the Fees for Removing Change 2—Rebate To Add Liquidity in Specifically, the Exchange is Liquidity in Penny Pilot Options from Penny Pilot Options amending the third incentive in note $0.54 to $0.50 per contract for all ‘‘e’’ which currently states: Participant categories other than The Exchange’s proposal to remove Customer is reasonable because the note ‘‘d’’ of Chapter XV, Section 2(1) is (a) add Customer, Professional, Firm, Non- reasonable because this incentive to NOM Market Maker and/or Broker-Dealer lower fees should encourage these participants to send additional order reduce certain Fees for Removing liquidity in Penny Pilot Options and/or Non- Liquidity in Penny Pilot Options is no Penny Pilot Options above 0.85% of total flow to the Exchange and the additional industry customer equity and ETF option order flow should benefit all market longer relevant as those fees are being ADV contracts per day from October 22, 2015 participants. reduced in this proposal. through October 30, 2015 and (b) has added Decreasing the Fees for Removing The Exchange’s proposal to remove liquidity in all securities through one or more Liquidity in Penny Pilot Options from note ‘‘d’’ of Chapter XV, Section 2(1) is of its Nasdaq Market Center MPIDs that $0.54 to $0.50 per contract for all equitable and not unfairly represent 1.00% or more of Consolidated Participant categories other than discriminatory because this incentive to Volume from October 22, 2015 through Customer is equitable and not unfairly reduce Fees for Removing Liquidity in October 30, 2015 will receive an additional Penny Pilot Options will not be offered $0.05 per contract Penny Pilot Options discriminatory because the Exchange would uniformly assess all non- to any Participant. Customer Rebate to Add Liquidity for each The Exchange’s proposal to amend transaction which adds liquidity in Penny Customers a Penny Pilot Options Fee for Pilot Options from October 22, 2015 through note ‘‘e’’ of Chapter XV, Section 2(1) to October 30, 2015. Consolidated Volume shall 12 This incentive will apply monthly going reduce one of the incentives being mean the total consolidated volume reported forward. offered to Participants that qualify for to all consolidated transaction reporting 13 15 U.S.C. 78f. Tier 8 of the Customer and Professional plans by all exchanges and trade reporting 14 15 U.S.C. 78f(b)(4) and (5). Penny Pilot Options Rebates to Add

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Liquidity from an additional $0.05 per set forth in Rule 7014 and qualification provided they qualify for Tier 8 and add contract incentive to $0.03 per contract in the QMM Program.19 These two options and equity volume as specified is reasonable because, despite the programs are equity programs which in the new note ‘‘e’’ criteria,20 is reduction in the incentive being offered, require participation in the form of equitable and not unfairly the opportunity to earn a higher rebate adding liquidity. The concept of discriminatory because market of $0.51 15 per contract, provided the participating in the equities market as a participants today may qualify for a qualifications are met, will incentivize means to qualify for an options rebate comparable or a higher rebate through Participants to transact an even greater exists today. The Exchange’s proposal alternative means that does not require number of qualifying Customer and/or would require Participants to add participation in NOM. Professional volume, which liquidity liquidity in all securities through one or The Exchange’s proposal to amend will benefit other market participants by more of its Nasdaq Market Center the time period of October 22, 2015 providing them the opportunity to MPIDS that represent 1.00% or more of through October 30, 2015 to ‘‘in a interact with that liquidity. The Consolidated Volume during the month. month’’ is reasonable because unlike Exchange’s proposal to permit Consolidated Volume shall mean the last month when the the [sic] Exchange Participants to obtain a higher rebate of total consolidated volume reported to filed a mid-month amendment for $0.51 per contract, provided they all consolidated transaction reporting October 2015, the amended language is qualify for the Tier 8 rebate and the new plans by all exchanges and trade intended to capture the entire month criteria of note ‘‘e’’ 16 by adding volume reporting facilities during a month in going forward. in a month, which includes the addition equity securities, excluding executed The Exchange’s proposal to amend of options and equity volume, is orders with a size of less than one round the time period of October 22, 2015 reasonable because the Exchange is lot. For purposes of calculating through October 30, 2015 to ‘‘in a encouraging market participants to send Consolidated Volume and the extent of month’’ is equitable and not unfairly order flow to both the options and an equity member’s trading activity, discriminatory because the note ‘‘e’’ equity markets to receive the rebate. expressed as a percentage of or ratio to qualifications would be uniformly Incentivizing Participants to add Consolidated Volume, the date of the calculated for a month for all options liquidity through the payment annual reconstitution of the Russell Participants. of an additional rebate is not novel and Investments Indexes shall be excluded The Exchange’s proposal to renumber exists today.17 Today, the Customer and from both total Consolidated Volume current note ‘‘e’’ as note ‘‘c’’ in Chapter Professional Penny Pilot Options Rebate and the member’s trading activity. XX [sic], Section 2(1) is reasonable, to Add Liquidity Tier 8 includes, as part The Exchange’s proposal to amend equitable and not unfairly of the qualifying criteria, a certification note ‘‘e’’ of Chapter XV, Section 2(1) to discriminatory because it will add order for the Investor Support Program 18 as reduce one of the incentives being to the pricing schedule. offered to Participants that qualify for B. Self-Regulatory Organization's 15 Tier 8 pays a rebate of $0.48 per contract and Tier 8 of the Customer and Professional Statement on Burden on Competition the additional rebate proposed for note ‘‘e’’ (new Penny Pilot Options Rebates to Add note ‘‘c’’) would be a $0.03 per contract rebate for Liquidity from an additional $0.05 per The Exchange does not believe that a total of $0.51 per contract. the proposed rule change will impose 16 contract incentive to $0.03 per contract The note ‘‘e’’ incentive being amended requires any inter-market burden on competition Participants to (a) add Customer, Professional, Firm, is equitable and not unfairly Non-NOM Market Maker and/or Broker-Dealer discriminatory because all Participants not necessary or appropriate in liquidity in Penny Pilot Options and/or Non-Penny may qualify for Tier 8 and the furtherance of the purposes of the Act. Pilot Options above 0.85% of total industry The Exchange operates in a highly customer equity and ETF option ADV contracts per additional note ‘‘e’’ incentive. day in a month and (b) add liquidity in all Qualifying Participants will be competitive market in which many securities through one or more of its Nasdaq Market uniformly paid the rebate provided the sophisticated and knowledgeable Center MPIDs that represent 1.00% or more of requirements are met in a month. The market participants can readily and do Consolidated Volume in a month in order to receive send order flow to competing exchanges an additional $0.03 per contract Penny Pilot Exchange’s proposal to permit Options Customer Rebate to Add Liquidity. This is Participants to receive an additional if they deem fee levels or rebate the incentive as proposed in this rule change. $0.03 per contract rebate in addition to incentives at a particular exchange to be 17 Note ‘‘e’’ provides two other opportunities, the Tier 8 rebate of $0.48 per contract, excessive or inadequate. Additionally, aside from the incentive which is being amended, new competitors have entered the to earn a higher rebate. Participants that add Customer, Professional, Firm, Non-NOM Market Release Nos. 63414 (December 2, 2010), 75 FR market and still others are reportedly Maker and/or Broker-Dealer liquidity in Penny Pilot 76505 (December 8, 2010) (NASDAQ–2010–153) entering the market shortly. These Options and/or Non- Penny Pilot Options of 1.15% (notice of filing and immediate effectiveness); and market forces ensure that the Exchange’s or more of total industry customer equity and ETF 63628 (January 3, 2011), 76 FR 1201 (January 7, fees and rebates remain competitive option ADV contracts per day in a month receive 2011) (NASDAQ–2010–154) (notice of filing and an additional $0.02 per contract Penny Pilot immediate effectiveness). with the fee structures at other trading Options Customer Rebate to Add Liquidity for each 19 A QMM is a NASDAQ member that makes a platforms. In that sense, the Exchange’s transaction which adds liquidity in Penny Pilot significant contribution to market quality by proposal is actually pro-competitive Options in that month; or Participants may add providing liquidity at the national best bid and offer because the Exchange is simply Customer, Professional, Firm, Non-NOM Market (‘‘NBBO’’) in a large number of stocks for a responding to competition by adjusting Maker and/or Broker-Dealer liquidity in Penny Pilot significant portion of the day. In addition, the Options and/or Non-Penny Pilot Options of 1.40% NASDAQ equity member must avoid imposing the rebates and fees in order to remain or more of total industry customer equity and ETF burdens on NASDAQ and its market participants competitive in the current environment. option ADV contracts per day in a month to receive that may be associated with excessive rates of entry Decreasing the Fees for Removing an additional $0.05 per contract Penny Pilot of orders away from the inside and/or order Liquidity in Penny Pilot Options from Options Customer Rebate to Add Liquidity for each cancellation. The designation ‘‘QMM’’ reflects the transaction which adds liquidity in Penny Pilot QMM’s commitment to provide meaningful and $0.54 to $0.50 per contract for all Options in that month. consistent support to market quality and price Participant categories other than 18 For a detailed description of the Investor discovery by extensive quoting at the NBBO in a Customer does not create an intra- Support Program or ISP, see Securities Exchange large number of securities. In return for its market undue burden on competition Act Release No. 63270 (November 8, 2010), 75 FR contributions, certain financial benefits are 69489 (November 12, 2010) (NASDAQ–2010–141) provided to a QMM with respect to a particular because all Participants would be (notice of filing and immediate effectiveness) (the MPID (a ‘‘QMM MPID’’), as described under Rule ‘‘ISP Filing’’). See also Securities Exchange Act 7014(e). 20 See note 16.

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assessed the same fee, except it appears to the Commission that such NASDAQ–2015–127, and should be Customers. Customer order flow is action is: (i) Necessary or appropriate in submitted on or before December 3, unique in that it enhances liquidity on the public interest; (ii) for the protection 2015. the Exchange for the benefit of all of investors; or (iii) otherwise in For the Commission, by the Division of market participants and benefits all furtherance of the purposes of the Act. Trading and Markets, pursuant to delegated market participants by providing more If the Commission takes such action, the authority.22 trading opportunities, which attracts Commission shall institute proceedings Robert W. Errett, market makers. to determine whether the proposed rule Deputy Secretary. The elimination of the SPY Fees for should be approved or disapproved. [FR Doc. 2015–28683 Filed 11–10–15; 8:45 am] Removing Liquidity in Penny Pilot IV. Solicitation of Comments BILLING CODE 8011–01–P Options does not create an intra-market undue burden on competition because Interested persons are invited to all Penny Pilot Options will be assessed submit written data, views, and arguments concerning the foregoing, SECURITIES AND EXCHANGE the same [sic] as the Fees for Removing COMMISSION Liquidity. including whether the proposed rule The Exchange’s proposal to remove change is consistent with the Act. [Release No. 34–76370; File No. SR–Phlx– note ‘‘d’’ of Chapter XV, Section 2(1) Comments may be submitted by any of 2015–90] does not create an intra-market undue the following methods: burden on competition because this Self-Regulatory Organizations; Electronic Comments NASDAQ OMX PHLX LLC; Notice of incentive to reduce certain Fees for • Removing Liquidity in Penny Pilot Use the Commission’s Internet Filing and Immediate Effectiveness of Options is no longer relevant as those comment form (http://www.sec.gov/ Proposed Rule Change To Adopt rules/sro.shtml); or Business Continuity and Disaster fees are being reduced in this proposal. • The Exchange’s proposal to amend Send an email to rule-comments@ Recovery Plans Testing Requirements note ‘‘e’’ of Chapter XV, Section 2(1) to sec.gov. Please include File Number SR– NASDAQ–2015–127 on the subject line. November 5, 2015. reduce one of the incentives being Pursuant to Section 19(b)(1) of the offered to Participants that qualify for Paper Comments Securities Exchange Act of 1934 Tier 8 of the Customer and Professional • Send paper comments in triplicate (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Penny Pilot Options Rebates to Add to Brent J. Fields, Secretary, Securities notice is hereby given that on November Liquidity from an additional $0.05 per and Exchange Commission, 100 F Street 2, 2015, NASDAQ OMX PHLX LLC contract incentive to $0.03 per contract NE., Washington, DC 20549–1090. (‘‘Phlx’’ or ‘‘Exchange’’) filed with the does not create an intra-market undue All submissions should refer to File Securities and Exchange Commission burden on competition because all Number SR–NASDAQ–2015–127. This (‘‘SEC’’ or ‘‘Commission’’) the proposed Participants may qualify for Tier 8 and file number should be included on the rule change as described in Items I and the additional incentive. subject line if email is used. To help the II, below, which Items have been The Exchange’s proposal to amend Commission process and review your prepared by the Exchange. The the time period of October 22, 2015 comments more efficiently, please use Commission is publishing this notice to through October 30, 2015 to ‘‘in a only one method. The Commission will solicit comments on the proposed rule month’’ does not create an intra-market post all comments on the Commission’s change from interested persons. undue burden on competition because Internet Web site (http://www.sec.gov/ the amended language is intended to I. Self-Regulatory Organization’s rules/sro.shtml). Copies of the capture the entire month going forward Statement of the Terms of Substance of submission, all subsequent and was previously intended to reflect the Proposed Rule Change amendments, all written statements the effectiveness of a prior rule change. The Exchange proposes to adopt The remaining renumbering changes with respect to the proposed rule business continuity and disaster do not create an intra-market undue change that are filed with the recovery plans (‘‘BC/DR Plans’’) testing burden on competition because the Commission, and all written requirements for certain Exchange amendments are non-substantive in communications relating to the Member Organizations 3 and PSX nature. proposed rule change between the Commission and any person, other than Participants 4 (‘‘Participants’’) in C. Self-Regulatory Organization's those that may be withheld from the Statement on Comments on the public in accordance with the 22 17 CFR 200.30–3(a)(12). Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be 1 15 U.S.C. 78s(b)(1). 2 Members, Participants, or Others available for Web site viewing and 17 CFR 240.19b–4. 3 The term ‘‘Member Organization’’ is defined as No written comments were either printing in the Commission’s Public ‘‘a corporation, partnership (general or limited), solicited or received. Reference Room, 100 F Street NE., limited liability partnership, limited liability Washington, DC 20549 on official company, business trust or similar organization, III. Date of Effectiveness of the business days between the hours of transacting business as a broker or a dealer in Proposed Rule Change and Timing for securities and which has the status of a member 10:00 a.m. and 3:00 p.m. Copies of such organization by virtue of (i) admission to Commission Action filing also will be available for membership given to it by the Membership The foregoing rule change has become inspection and copying at the principal Department pursuant to the provisions of Rules office of the Exchange. All comments 900.1 or 900.2 or the By-Laws or (ii) the transitional effective pursuant to Section rules adopted by the Exchange pursuant to Section 21 19(b)(3)(A)(ii) of the Act. received will be posted without change; 6–4 of the By-Laws. References herein to officer or At any time within 60 days of the the Commission does not edit personal partner, when used in the context of a member filing of the proposed rule change, the identifying information from organization, shall include any person holding a Commission summarily may submissions. You should submit only similar position in any organization other than a corporation or partnership that has the status of a temporarily suspend such rule change if information that you wish to make member organization.’’ See Exchange Rule 1(o). available publicly. All submissions 4 The term ‘‘PSX Participant’’ or ‘‘Participant’’ is 21 15 U.S.C. 78s(b)(3)(A)(ii). should refer to File Number SR– defined as ‘‘an entity that fulfills the obligations

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connection with Regulation Systems maintain ‘‘[b]usiness continuity and and orderly markets in the event of the Compliance and Integrity (‘‘Regulation disaster recovery plans that include activation of such plans.’’ The proposed SCI’’).5 maintaining backup and recovery new rule further provides that ‘‘[s]uch The text of the proposed rule change capabilities sufficiently resilient and standards may include volume-based is available on the Exchange’s Web site geographically diverse and that are and/or market share-based criteria, and at http:// reasonably designed to achieve next may be adjusted from time to time by nasdaqomxphlx.cchwallstreet.com/, at business day resumption of trading and the Exchange.’’ Lastly, the proposed the principal office of the Exchange, and two-hour resumption of critical SCI new rule will require the Exchange to at the Commission’s Public Reference systems following a wide-scale provide public notice of the standards Room. disruption.’’ 6 The Exchange has put that it adopts. extensive time and resources toward The Exchange is proposing to adopt II. Self-Regulatory Organization’s planning for system failures and already Rule 926(b), which will set forth the Statement of the Purpose of, and maintains robust BC/DR Plans obligations of the Exchange and its Statutory Basis for, the Proposed Rule consistent with the Rule. As set forth Members Organizations and Participants Change below, in connection with Regulation with respect to testing. Specifically, the In its filing with the Commission, the SCI, the Exchange is proposing to rule will require the Exchange to Exchange included statements require certain Member Organizations ‘‘designate Members Organizations and concerning the purpose of and basis for and Participants to participate in testing PSX Participants pursuant to the the proposed rule change and discussed of the operation of the Exchange’s BC/ standards established in paragraph (a) of any comments it received on the DR Plans. this rule and require participation by proposed rule change. The text of these With respect to an SCI entity’s BC/DR such designated Members Organizations statements may be examined at the Plans, including its backup systems, and PSX Participants in scheduled places specified in Item IV below. The paragraph (a) of Rule 1004 of Regulation functional and performance testing of Exchange has prepared summaries, set SCI requires each SCI entity to: the operation of such plans, in the forth in sections A, B, and C below, of ‘‘[e]stablish standards for the manner and frequency specified by the the most significant aspects of such designation of those members or Exchange, provided that such frequency statements. participants that the SCI entity shall not be less than once every 12 reasonably determines are, taken as a months.’’ Moreover, the rule will A. Self-Regulatory Organization's whole, the minimum necessary for the Statement of the Purpose of, and require the Exchange to provide at least maintenance of fair and orderly markets six months prior notice to Members Statutory Basis for, the Proposed Rule in the event of the activation of such Change Organizations and Participants that are plans.’’ 7 Paragraph (b) of Rule 1004 of designated for mandatory testing. Lastly, 1. Purpose Regulation SCI further requires each SCI the rule will provide notice that entity to ‘‘[d]esignate members or participation in testing is a condition of The Exchange is proposing to adopt participants pursuant to the standards new Rule 926 to implement the BC/DR membership for Members Organizations established in paragraph (a) of [Rule and Participants that are designated for Plans requirements of Rule 1004 of 1004] and require participation by such Regulation SCI. As adopted by the testing. designated members or participants in The Exchange encourages all Member Commission, Regulation SCI applies to scheduled functional and performance certain self-regulatory organizations Organizations and Participants to testing of the operation of such plans, in connect to the Exchange’s backup (including the Exchange), alternative the manner and frequency specified by trading systems (‘‘ATSs’’), plan systems and to participate in testing of the SCI entity, provided that such 9 processors, and exempt clearing such systems; however, certain frequency shall not be less than once Member Organizations and Participants agencies (collectively, ‘‘SCI entities’’), every 12 months.’’ 8 In order to comply and will require these SCI entities to will be obligated to participate in BC/DR with Rule 1004 of Regulation SCI, the Plans testing. In adopting new Rule 926, comply with requirements with respect Exchange proposes to adopt new Rule to the automated systems central to the the Exchange will require mandatory 926, which incorporates the participation in BC/DR Plans testing by performance of their regulated activities. requirements of Rule 1004 of Regulation Among the requirements of Regulation those Member Organizations and SCI as part of the Exchange’s rules, and Participants that the Exchange SCI is Rule 1001(a)(2)(v), which requires sets forth the notice, selection criteria the Exchange and other SCI entities to reasonably determines are, taken as a and obligations of Member whole, the minimum necessary for the Organizations and Participants with contained in Rule 3211 regarding participation in maintenance of fair and orderly markets the System, and includes: (1) ‘Equities ECNs,’ respect to BC/DR Plans testing. in the event of the activation of such which are member organizations that meet all of the The Exchange proposes to adopt Rule plans on the Exchange and PSX, requirements of Rule 3223, and that participate in 926(a), which will set forth the respectively. The Exchange believes that the System with respect to one or more System Exchange’s obligations with respect to using overall participation on its Securities; (2) ‘PSX Market Makers’ or ‘Market the selection of Members Organizations Makers’, member organizations that are registered as PSX Market Makers for purposes of participation and Participants for testing. Specifically, 9 In this regard, the Exchange will allow any in the System on a fully automated basis with the rule will require the Exchange to Member Organization or Participant to participate respect to one or more System securities; and (3) ‘‘[e]stablish standards for the in the testing of the Exchange’s BC/DR Plans, which ‘Order Entry Firms,’ which are member designation of those Members is consistent with the Plan. See SCI Adopting organizations that are registered for the purposes of Release, supra note 5 at 72350. The Exchange will entering orders in System Securities into the Organizations and Participants that the provide instructions on how a Member System. This term shall also include any Electronic Exchange reasonably determines are, Organization and Participant must inform the Communications Network or Alternative Trading taken as a whole, the minimum Exchange of its interest in participating in an System (as such terms are defined in Regulation necessary for the maintenance of fair upcoming BC/DR Plans test via the announcement NMS) that fails to meet all the requirements of Rule of the test date. A Member Organization or 3223.’’ See PSX Rule 3301(c). Participant must provide the Exchange notice of its 5 See Securities Exchange Act Release No. 73639 6 17 CFR 242.1001(a)(2)(v). interest to participate at least a week prior to the (November 19, 2014), 79 FR 72252 (December 5, 7 17 CFR 242.1004(a). test date and must have the appropriate connection 2014) (‘‘SCI Adopting Release’’). 8 17 CFR 242.1004(b). for testing in place.

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markets (by volume and/or market manipulative acts and practices, to C. Self-Regulatory Organization's share) as a measure to select Member promote just and equitable principles of Statement on Comments on the Organizations and Participants for trade, to foster cooperation and Proposed Rule Change Received From mandatory participation in BC/DR Plans coordination with persons engaged in Members, Participants, or Others testing is a reasonable means by which regulating, clearing, settling, processing No written comments were either it can determine which Member information with respect to, and solicited or received. Organizations and Participants are facilitating transactions in securities, to III. Date of Effectiveness of the necessary for the maintenance of fair remove impediments to and perfect the Proposed Rule Change and Timing for and orderly markets in the event of the mechanism of a free and open market activation of such plans.10 For each BC/ Commission Action and a national market system, and, in DR Plans test cycle, the Exchange will general, to protect investors and the The Exchange has filed the proposed select the top ten Member Organizations public interest; and are not designed to rule change pursuant to Section on the Exchange and the top five 16 permit unfair discrimination between 19(b)(3)(A) of the Act and Rule 19b– Participants on PSX based on the 4(f)(6)(iii) thereunder.17 Because the customers, issuers, brokers, or dealers. Exchange’s measure of overall proposed rule change does not: (i) participation on each of those markets. The proposal will ensure that the Significantly affect the protection of All notices concerning BC/DR Plans Member Organizations and Participants investors or the public interest; (ii) testing will be posted on the Exchange’s necessary to ensure the maintenance of impose any significant burden on Web site. fair and orderly markets are properly competition; and (iii) become operative The Exchange is proposing to initially designated consistent with Rule 1004 of prior to 30 days from the date on which select Member Organizations and Regulation SCI. Specifically, the it was filed, or such shorter time as the Participants with the highest levels of proposal will adopt clear and objective Commission may designate, if trading volume on the Exchange and criteria with respect to the designation consistent with the protection of PSX over four calendar months of Member Organizations and investors and the public interest, the (‘‘Measurement Period’’) as mandatory Participants that are required to proposed rule change has become testing Member Organizations and participate in the testing of the effective pursuant to Section 19(b)(3)(A) 11 Participants, respectively. Exchange’s BC/DR Plans, as well as of the Act and Rule 19b–4(f)(6)(iii) Specifically, the Measurement Period appropriate notification regarding such thereunder.18 A proposed rule change will be the four calendar months of designation. As set forth in the SCI filed under Rule 19b–4(f)(6)(iii) 19 trading immediately prior to the Adopting Release, ‘‘SROs have the normally does not become operative Exchange’s announcement of the next prior to 30 days after the date of the BC/DR Plans test date. The authority, and legal responsibility, under Section 6 of the Exchange Act, to filing. However, pursuant to Rule 19b– Measurement Period will always begin 20 adopt and enforce rules (including rules 4(f)(6)(iii), the Commission may at a point after the Exchange announces designate a shorter time if such action the criteria to be used in the next BC/ to comply with Regulation SCI’s requirements relating to BC/DR testing) is consistent with the protection of DR Plans test. By way of example, if on investors and the public interest. applicable to their members or October 6, 2017 the Exchange The Exchange has asked the announced the BC/DR Plans test participants that are designed to, among Commission to waive the 30-day selection criteria and on March 2, 2018 other things, foster cooperation and operative delay so that the proposal may the Exchange announced a BC/DR Plans coordination with persons engaged in become operative immediately upon test date of September 8, 2018, the regulating, clearing, settling, processing filing. The Commission believes that Measurement Period used to select information with respect to, and waiving the 30-day operative delay is Member Organizations and Participants facilitating transactions in securities, to consistent with the protection of subject to mandatory testing would be remove impediments to and perfect the investors and the public interest as it November 2017 through February 2018. mechanism of a free and open market will allow the Exchange to incorporate Members Organizations and Participants and a national market system, and, in changes required under Regulation SCI, not obligated to participate that wish to general, to protect investors and the such as establishing standards for participate in this test must inform the public interest.’’ 15 The Exchange designating BC/DR participants, prior to Exchange no later than September 1, the November 3, 2015 compliance date. 12 believes that this proposal is consistent 2018. with such authority and legal Accordingly, the Commission 2. Statutory Basis responsibility. designates the proposed rule change to 21 The Exchange believes that the be operative upon filing. B. Self-Regulatory Organization's At any time within 60 days of the proposed rule change is consistent with Statement on Burden on Competition filing of the proposed rule change, the Section 6 of the Act,13 in general, and

further the objectives of Section 6(b)(5) The Exchange does not believe that 16 14 15 U.S.C. 78s(b)(3)(A)(iii). of the Act, in particular, in that it is the proposed rule change will result in 17 17 CFR 240.19b–4(f)(6). designed to prevent fraudulent and any burden on competition that is not 18 In addition, Rule 19b–4(f)(6) requires a self- necessary or appropriate in furtherance regulatory organization to give the Commission 10 The Exchange will provide notice of the of the purposes of the Act, as amended. written notice of its intent to file the proposed rule specific selection criteria and measurement period change at least five business days prior to the date in a notice to Member Organizations and To the contrary, the proposal is not a of filing of the proposed rule change, or such Participants. The initial selection criteria and competitive proposal but rather is shorter time as designated by the Commission. The measurement period will be announced no later necessary for the Exchange’s Exchange has satisfied this requirement. than November 3, 2015. 19 compliance with Regulation SCI. 17 CFR 240.19b–4(f)(6). 11 The Exchange may change the total number of 20 17 CFR 240.19b–4(f)(6)(iii). Member Organizations and Participants selected 21 For purposes only of waiving the 30-day from time to time. operative delay, the Commission has also 12 See note 9. considered the proposed rule’s impact on 13 15 U.S.C. 78f. 15 See SCI Adopting Release, supra note 5 at efficiency, competition, and capital formation. See 14 15 U.S.C. 78f(b)(5). 72350. 15 U.S.C. 78c(f).

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Commission summarily may information that you wish to make (the ‘‘Equities Fee Schedule’’ and, temporarily suspend such rule change if available publicly. together with the Options Fee Schedule, it appears to the Commission that such All submissions should refer to File the ‘‘Fee Schedules’’) to implement fees action is necessary or appropriate in the Number SR–Phlx–2015–90 and should for the new service. The text of the public interest, for the protection of be submitted on or before December 3, proposed rule change is available on the investors, or otherwise in furtherance of 2015. Exchange’s Web site at www.nyse.com, the purposes of the Act. If the For the Commission, by the Division of at the principal office of the Exchange, Commission takes such action, the Trading and Markets, pursuant to delegated and at the Commission’s Public Commission shall institute proceedings authority.22 Reference Room. to determine whether the proposed rule Robert W. Errett, II. Self-Regulatory Organization’s should be approved or disapproved. Deputy Secretary. Statement of the Purpose of, and IV. Solicitation of Comments [FR Doc. 2015–28698 Filed 11–10–15; 8:45 am] Statutory Basis for, the Proposed Rule BILLING CODE 8011–01–P Change Interested persons are invited to submit written data, views, and In its filing with the Commission, the arguments concerning the foregoing, SECURITIES AND EXCHANGE self-regulatory organization included including whether the proposed rule COMMISSION statements concerning the purpose of, change is consistent with the Act. and basis for, the proposed rule change [Release No. 34–76372; File No. SR– and discussed any comments it received Comments may be submitted by any of NYSEARCA–2015–105] the following methods: on the proposed rule change. The text of those statements may be examined at Self-Regulatory Organizations; NYSE Electronic Comments the places specified in Item IV below. Arca, Inc.; Notice of Filing and The Exchange has prepared summaries, • Use the Commission’s Internet Immediate Effectiveness of Proposed set forth in sections A, B, and C below, comment form (http://www.sec.gov/ Rule Change To Provide That the Co- of the most significant parts of such rules/sro.shtml); or Location Services Offered by the statements. • Send an email to rule-comments@ Exchange Include 40 Gigabit Internet sec.gov. Please include File Number SR– Protocol Network Connections in the A. Self-Regulatory Organization's Phlx–2015–90 on the subject line. Exchange’s Data Center and To Amend Statement of the Purpose of, and Paper Comments the Exchange’s Price List To Statutory Basis for, the Proposed Rule Implement Fees for the New Services Change • Send paper comments in triplicate to Brent J. Fields, Secretary, Securities November 5, 2015. 1. Purpose and Exchange Commission, 100 F Street Pursuant to Section 19(b)(1) 1 of the The Exchange proposes to change its NE., Washington, DC 20549–1090. Securities Exchange Act of 1934 (the rules to provide that the co-location 4 2 3 All submissions should refer to File ‘‘Act’’) and Rule 19b–4 thereunder, services offered by the Exchange Number SR–Phlx–2015–90. This file notice is hereby given that, on October include 40 Gb IP network connections number should be included on the 28, 2015, NYSE Arca, Inc. (the in the Exchange’s data center. The subject line if email is used. To help the ‘‘Exchange’’ or ‘‘NYSE Arca’’) filed with Exchange proposes to amend the Fee Commission process and review your the Securities and Exchange Schedules to implement fees for the comments more efficiently, please use Commission (the ‘‘Commission’’) the new service effective. Currently, the Exchange’s co-location only one method. The Commission will proposed rule change as described in services offer Users 5 access to two local post all comments on the Commission’s Items I, II, and III below, which Items area networks available in the data Internet Web site (http://www.sec.gov/ have been prepared by the self- center: The IP network and the rules/sro.shtml). regulatory organization. The Liquidity Center Network (‘‘LCN’’).6 IP Copies of the submission, all Commission is publishing this notice to subsequent amendments, all written solicit comments on the proposed rule change from interested persons. 4 The Exchange initially filed rule changes statements with respect to the proposed relating to its co-location services with the rule change that are filed with the I. Self-Regulatory Organization’s Securities and Exchange Commission Commission, and all written Statement of the Terms of the Substance (‘‘Commission’’) in 2010. See Securities Exchange Act Release No. 63275 (November 8, 2010), 75 FR communications relating to the of the Proposed Rule Change 70048 (November 16, 2010) (SR–NYSEArca–2010– proposed rule change between the The Exchange proposes to change its 100) (the ‘‘Original Co-location Filing’’). The Commission and any person, other than rules to provide that the co-location Exchange operates a data center in Mahwah, New those that may be withheld from the Jersey (the ‘‘data center’’) from which it provides services offered by the Exchange co-location services to Users. public in accordance with the include 40 gigabit (‘‘Gb’’) Internet 5 For purposes of the Exchange’s co-location provisions of 5 U.S.C. 552, will be protocol (‘‘IP’’) network connections in services, a ‘‘User’’ means any market participant available for Web site viewing and the Exchange’s data center. The that requests to receive co-location services directly printing in the Commission’s Public from the Exchange. See Securities Exchange Act Exchange proposes to amend the NYSE Release No. 76010 (September 29, 2015), 80 FR Reference Room, 100 F Street NE., Arca Options Fee Schedule (the 60197 (October 5, 2015) (SR–NYSEArca–2015–82). Washington, DC 20549, on official ‘‘Options Fee Schedule’’) and, through As specified in the Fee Schedules, a User that business days between the hours of its wholly owned subsidiary NYSE Arca incurs co-location fees for a particular co-location 10:00 a.m. and 3:00 p.m. Copies of the service pursuant thereto would not be subject to co- Equities, Inc. (‘‘NYSE Arca Equities’’), location fees for the same co-location service filing also will be available for the NYSE Arca Equities Schedule of charged by the Exchange’s affiliates New York inspection and copying at the principal Fees and Charges for Exchange Services Stock Exchange LLC and NYSE MKT LLC. See office of the Exchange. All comments Securities Exchange Act Release No. 70173 (August received will be posted without change; 13, 2013), 78 FR 50459 (August 19, 2013) (SR– 22 17 CFR 200.30–3(a)(12). NYSEArca–2013–80). the Commission does not edit personal 1 15 U.S.C. 78s(b)(1). 6 See Original Co-location Filing, at 70049 and identifying information from 2 15 U.S.C. 78a. Securities Exchange Act Release No. 74219 submissions. You should submit only 3 17 CFR 240.19b–4. Continued

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network access is currently available in for the LCN. The IP network provides regarding the bandwidth of its IP 1 and 10 Gb capacities. The Exchange Users that do not need the lower latency network connections, allowing it to also offers 1, 10, and 40 Gb LCN of the LCN with a less costly data center select the option that best corresponds network access and LCN 10 Gb LX network option. Having another data to its needs and is most cost-effective for network access.7 center network also provides Users with that User. The IP network and LCN provide the option to create redundancy in their The 40 Gb IP network connection is Users with access to the Exchange’s infrastructure. expected to be available no later than trading and execution systems and to The proposed rule change would April 15, 2016. The Exchange will the Exchange’s proprietary market data allow Users to purchase 40 Gb IP announce the date that the 40 Gb IP products. The IP network also provides network connections in the data center. network connection will be available Users with access to away market data The offering of a 40 Gb IP network through a customer notice. products. There is greater latency in the connection in addition to the existing 1 The Exchange proposes to establish transmission of data between Users and and 10 Gb IP network connections the following fees for 40 Gb IP network the Exchange for the IP Network than would provide a User more choices connections:

Type of service Description Amount of charge

IP Network Access ...... 40 Gb circuit ...... $10,000 per connection initial charge plus $17,000 monthly per con- nection.

By comparison, the 1 Gb IP network 2. Statutory Basis The Exchange believes that the connection costs $2,500 per connection proposed service would remove The Exchange believes that the initial charge plus $2,500 monthly per impediments to, and perfect the proposed rule change is consistent with connection and the 10 Gb IP network mechanisms of, a free and open market Section 6(b) of the Act,10 in general, and connection costs $10,000 per and a national market system and, in furthers the objectives of Sections connection initial charge plus $10,000 general, protect investors and the public 6(b)(5) of the Act,11 in particular, monthly per connection. The 40 Gb LCN interest because the offering of a 40 Gb because it is designed to prevent circuit costs $15,000 per connection IP network connection in addition to the fraudulent and manipulative acts and initial charge plus $20,000 monthly per existing 1 and 10 Gb IP network practices, to promote just and equitable connection. connections would provide a User more principles of trade, to foster cooperation As is the case with all Exchange co- choices regarding the bandwidth of its and coordination with persons engaged IP network connections, allowing it to location arrangements, (i) neither a User in regulating, clearing, settling, nor any of the User’s customers would select the option that best corresponds processing information with respect to, to its needs and is most cost-effective for be permitted to submit orders directly to and facilitating transactions in that User. the Exchange unless such User or securities, to remove impediments to, The Exchange also believes that the customer is a member organization, a and perfect the mechanisms of, a free proposed rule change is consistent with Sponsored Participant or an agent and open market and a national market Section 6(b)(4) of the Act,12 in thereof (e.g., a service bureau providing system and, in general, to protect particular, because it provides for the order entry services); (ii) use of the co- investors and the public interest and equitable allocation of reasonable dues, location services proposed herein would because it is not designed to permit fees, and other charges among its be completely voluntary and available unfair discrimination between member organizations, issuers and other to all Users on a non-discriminatory customers, issuers, brokers, or dealers. 8 persons using its facilities and does not basis; and (iii) a User would only incur The Exchange believes that the unfairly discriminate between one charge for the particular co-location proposed 40 Gb IP network connection customers, issuers, brokers or dealers. service described herein, regardless of is not designed to permit unfair Overall, the Exchange believes that whether the User connects only to the discrimination between customers, the proposed fees for the proposed 40 Exchange or to the Exchange and one or issuers, brokers, or dealers because it Gb IP network connection are 9 both of its affiliates. would make a service available to Users reasonable because the Exchange The proposed change is not otherwise that require the increased IP network proposes to offer the service as a intended to address any other issues bandwidth, but Users that do not convenience to Users, but in doing so relating to co-location services and/or require the increased bandwidth could will incur certain costs, including costs related fees, and the Exchange is not continue to request an existing lower- related to the data center facility, aware of any problems that Users would bandwidth IP network connection. hardware and equipment and costs have in complying with the proposed Users that require lower latency levels related to personnel required for initial change. may utilize LCN connections. installation and ongoing monitoring,

(February 6, 2015), 80 FR 7899 (February 12, 2015) 8 As is currently the case, Users that receive co- receive co-location services normally would expect (SR–NYSEArca–2015–03) (notice of filing and location services from the Exchange will not receive reduced latencies in sending orders to, and immediate effectiveness of proposed rule change to any means of access to the Exchange’s trading and receiving market data from, the Exchange. include IP network connections). execution systems that is separate from, or superior 9 See SR–NYSEArca–2013–80, supra note 5 at 7 See Original Co-location Filing, at 70050 and to, that of other Users. In this regard, all orders sent 50459. The Exchange’s affiliates have also submitted the same proposed rule change to Securities Exchange Act Release No. 70887 to the Exchange enter the Exchange’s trading and propose the changes described herein. See SR– (November 15, 2013), 78 FR 69897 (November 21, execution systems through the same order gateway, NYSE–2015–54 and SR–NYSEMKT–2015–90. 2013) (SR–NYSEArca–2013–123) (notice of filing regardless of whether the sender is co-located in the data center or not. In addition, co-located Users do 10 15 U.S.C. 78f(b). and immediate effectiveness of proposed rule not receive any market data or data service product 11 15 U.S.C. 78f(b)(5). change to include LCN 10 Gb LX connection). that is not available to all Users, although Users that 12 15 U.S.C. 78f(b)(4).

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support and maintenance of such between or among market participants the reasons described above, the service. that are otherwise capable of satisfying Exchange believes that the proposed The Exchange further believes that the any applicable co-location fees, rule change reflects this competitive proposed change is reasonable because requirements, terms and conditions environment. the proposed fees directly relate to the established from time to time by the C. Self-Regulatory Organization's level of services provided by the Exchange. Exchange and, in turn, received by the Finally, the Exchange believes that it Statement on Comments on the User. In this regard, the fees proposed is subject to significant competitive Proposed Rule Change Received From for 40 Gb IP network connections are forces, as described below in the Members, Participants, or Others higher than, for example, the fees for 10 Exchange’s statement regarding the No written comments were solicited Gb IP network connections because burden on competition. or received with respect to the proposed costs for the initial purchase and For these reasons, the Exchange rule change. ongoing maintenance of the 40 IP believes that the proposal is consistent III. Date of Effectiveness of the network connections are generally with the Act. higher than those of the lower- Proposed Rule Change and Timing for bandwidth connections. However, these B. Self-Regulatory Organization's Commission Action costs are not anticipated to be four times Statement on Burden on Competition The Exchange has filed the proposed higher than the existing 10 Gb IP In accordance with Section 6(b)(8) of rule change pursuant to Section network connection. The Exchange the Act,13 the Exchange believes that the 19(b)(3)(A)(iii) of the Act 15 and Rule therefore notes that while the proposed proposed rule change will not impose 19b–4(f)(6) thereunder.16 Because the bandwidth of the 40 Gb IP network any burden on competition that is not proposed rule change does not: (i) connection is four times greater than the necessary or appropriate in furtherance Significantly affect the protection of existing 10 Gb IP connection, the of the purposes of the Act because, in investors or the public interest; (ii) proposed fees for the 40 Gb IP network addition to the proposed service being impose any significant burden on connection are significantly less than completely voluntary, it will be competition; and (iii) become operative four times the fees for the 10 Gb IP available to all Users on an equal basis prior to 30 days from the date on which connection. Specifically, the proposed (i.e. the same products and services are it was filed, or such shorter time as the initial charge of $10,000 is the same as available to all Users). Commission may designate, if the initial charge for the existing 10 Gb The Exchange believes that allowing consistent with the protection of IP network connection and the proposed Users to purchase 40 Gb IP network investors and the public interest, the monthly recurring charge of $17,000 is connections will not impose any burden proposed rule change has become less than double the $10,000 monthly on competition that is not necessary or effective pursuant to Section 19(b)(3)(A) charge for the existing 10 Gb IP network appropriate in furtherance of the of the Act and Rule 19b–4(f)(6)(iii) connection. The Exchange believes that purposes of the Act because such thereunder. this supports a finding that the service will be available to Users that A proposed rule change filed under proposed pricing is reasonable because require the increased IP network Rule 19b–4(f)(6) 17 normally does not the Exchange anticipates realizing bandwidth, but Users that do not become operative prior to 30 days after efficiencies as customers adopt higher- require the increased bandwidth could the date of the filing. However, pursuant bandwidth connections, and, in turn, continue to request an existing lower- to Rule 19b4(f)(6)(iii),18 the Commission reflecting such efficiencies in the bandwidth IP network connection. The may designate a shorter time if such pricing for such connections. offering of a 40 Gb IP network action is consistent with the protection As with fees for existing co-location connection in addition to the existing 1 of investors and the public interest. services, the fees proposed herein and 10 Gb IP network connections At any time within 60 days of the would be charged only to those Users would provide a User more choices filing of such proposed rule change, the that voluntarily select the 40 Gb IP regarding the bandwidth of its IP Commission summarily may network connection, which would be network connections, allowing it to temporarily suspend such rule change if available to all Users. Accordingly, the select the option that best corresponds it appears to the Commission that such Exchange believes that the proposed to its needs and is most cost-effective for action is necessary or appropriate in the change is equitable and not unfairly that User. In addition, the Exchange public interest, for the protection of discriminatory because it will result in believes that the proposed change will investors, or otherwise in furtherance of fees being charged only to Users that enhance competition, in that The the purposes of the Act. If the voluntarily select to receive the NASDAQ Stock Market LLC Commission takes such action, the corresponding services and because (‘‘NASDAQ’’) similarly makes a 40 Gb Commission shall institute proceedings those services will be available to all fiber connection available to users of its under Section 19(b)(2)(B) 19 of the Act to Users. Furthermore, the Exchange 14 co-location facilities. determine whether the proposed rule believes that the services and fees Finally, the Exchange notes that it change should be approved or proposed herein are not unfairly operates in a highly competitive market disapproved. discriminatory and are equitably in which market participants can allocated because, in addition to the readily favor competing venues if they IV. Solicitation of Comments services being completely voluntary, deem fee levels at a particular venue to Interested persons are invited to they are available to all Users on an be excessive. In such an environment, submit written data, views, and equal basis (i.e., the same products and the Exchange must continually review, arguments concerning the foregoing, services are available to all Users). All and consider adjusting, its services and including whether the proposed rule Users that voluntarily select the related fees and credits to remain proposed 40 Gb IP network service will competitive with other exchanges. For 15 15 U.S.C. 78s(b)(3)(A)(iii). be charged the same amount for the 16 17 CFR 240.19b–4(f)(6). service. 13 15 U.S.C. 78f(b)(8). 17 17 CFR 240.19b–4(f)(6). For the reasons above, the proposed 14 See NASDAQ Rule 7034 for a description of 18 17 CFR 240.19b–4(f)(6)(iii). change would not unfairly discriminate NASDAQ’s co-location services. 19 15 U.S.C. 78s(b)(2)(B).

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change is consistent with the Act. SECURITIES AND EXCHANGE and C below, of the most significant Comments may be submitted by any of COMMISSION aspects of such statements. the following methods: A. Self-Regulatory Organization's Electronic Comments [Release No. 34–76360; File No. SR–FINRA– Statement of the Purpose of, and 2015–046] • Statutory Basis for, the Proposed Rule Use the Commission’s Internet Change comment form (http://www.sec.gov/ Self-Regulatory Organizations; rules/sro.shtml); or Financial Industry Regulatory 1. Purpose • Send an email to rule-comments@ Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Regulation SCI was adopted by the sec.gov. Please include File No. SR– Commission on November 19, 2014, NYSEARCA–2015–105 on the subject Rule Change Relating to Mandatory Participation in Business Continuity with the objective of strengthening the line. technology infrastructure of the U.S. and Disaster Recovery Testing Under 4 Paper Comments Regulation SCI securities markets. The regulation applies to ‘‘SCI entities,’’ which • Send paper comments in triplicate November 5, 2015. includes FINRA, the national securities to Secretary, Securities and Exchange Pursuant to Section 19(b)(1) of the exchanges and equity alternative trading Commission, 100 F Street NE., Securities Exchange Act of 1934 systems (‘‘ATSs’’) that meet specified Washington, DC 20549–1090. (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 volume thresholds.5 One topic of All submissions should refer to File No. notice is hereby given that on October several Regulation SCI rule SR–NYSEARCA–2015–105. This file 30, 2015, Financial Industry Regulatory requirements is BC/DR testing. number should be included on the Authority, Inc. (‘‘FINRA’’) filed with the Rule 1004 of SEC Regulation SCI subject line if email is used. To help the Securities and Exchange Commission requires FINRA, as an SCI entity, to do Commission process and review your (‘‘SEC’’ or ‘‘Commission’’) the proposed the following with respect to its BC/DR comments more efficiently, please use rule change as described in Items I and plan: (1) Establish standards to only one method. The Commission will II below, which Items have been designate the members that FINRA post all comments on the Commission’s prepared by FINRA. FINRA has reasonably determines are, taken as a Internet Web site (http://www.sec.gov/ designated the proposed rule change as whole, the minimum necessary for the rules/sro.shtml). Copies of the constituting a ‘‘non-controversial’’ rule maintenance of fair and orderly markets submission, all subsequent change under paragraph (f)(6) of Rule in the event of the activation of its BC/ amendments, all written statements 19b–4 under the Act,3 which renders DR plan; (2) designate members with respect to the proposed rule the proposal effective upon receipt of pursuant to its established standards change that are filed with the this filing by the Commission. The and require them to participate in Commission, and all written Commission is publishing this notice to scheduled functional and performance communications relating to the solicit comments on the proposed rule testing of the operation of FINRA’s BC/ proposed rule change between the change from interested persons. DR plan, in the manner and frequency specified by FINRA, provided the Commission and any person, other than I. Self-Regulatory Organization’s those that may be withheld from the frequency is no less than once every 12 Statement of the Terms of Substance of months; and (3) coordinate the testing of public in accordance with the the Proposed Rule Change provisions of 5 U.S.C. 552, will be FINRA’s BC/DR plan on an industry- or available for Web site viewing and FINRA is proposing to adopt FINRA sector-wide basis with other SCI printing in the Commission’s Public Rule 4380 related to mandatory entities. Reference Room, 100 F Street NE., participation in business continuity and Consistent with Regulation SCI, Washington, DC 20549 on official disaster recovery (‘‘BC/DR’’) testing FINRA proposes to adopt Rule 4380 to business days between the hours of under Regulation Systems Compliance establish authority to designate 10:00 a.m. and 3:00 p.m. Copies of such and Integrity (‘‘Regulation SCI’’). members for mandatory participation in filing also will be available for The text of the proposed rule change its BC/DR testing. As noted in proposed inspection and copying at the principal is available on FINRA’s Web site at Rule 4380(a), FINRA will designate office of the Exchange. All comments http://www.finra.org, at the principal members according to established received will be posted without change; office of FINRA and at the criteria that are designed to ensure the Commission does not edit personal Commission’s Public Reference Room. participation by those members that identifying information from FINRA reasonably determines are, taken II. Self-Regulatory Organization’s as a whole, the minimum necessary for submissions. You should submit only Statement of the Purpose of, and information that you wish to make the maintenance of fair and orderly Statutory Basis for, the Proposed Rule markets in the event of the activation of available publicly. All submissions Change should refer to File No. SR– its BC/DR plan. As further noted in NYSEARCA–2015–105, and should be In its filing with the Commission, proposed Rule 4380(a), FINRA’s criteria submitted on or before December 3, FINRA included statements concerning will consider volume of activity on a 2015. the purpose of and basis for the FINRA market system over a specified proposed rule change and discussed any period of time.6 FINRA will For the Commission, by the Division of comments it received on the proposed communicate to members its criteria for Trading and Markets, pursuant to delegated designation under this Rule, and any authority.20 rule change. The text of these statements may be examined at the places specified Robert W. Errett, in Item IV below. FINRA has prepared 4 See Securities Exchange Act Release No. 73639 Deputy Secretary. summaries, set forth in sections A, B, (November 19, 2014), 79 FR 72252, 72254 [FR Doc. 2015–28689 Filed 11–10–15; 8:45 am] (December 5, 2014) (‘‘SCI Adopting Release’’). 5 Rule 1000 of SEC Regulation SCI. BILLING CODE 8011–01–P 1 15 U.S.C. 78s(b)(1). 6 Volume-based criteria may contemplate quoting, 2 17 CFR 240.19b–4. trading, or reportable order events, depending on 20 17 CFR 200.30–3(a)(12). 3 17 CFR 240.19b–4(f)(6). the type of activity conducted on a FINRA system.

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changes to such criteria, on a providers, like service bureaus that is intended to carry out the prospective basis 7 by Regulatory Notice. transmit information to FINRA systems requirements imposed by Regulation Proposed Rule 4380(b) would reiterate on behalf of FINRA members, may also SCI with respect to FINRA’s BC/DR several important points from wish to ensure their ability to function testing. When the Commission adopted Regulation SCI with respect to BC/DR in FINRA’s backup environment, even the mandatory backup testing plan testing. Specifically, the rule though the service providers are not requirements of Regulation SCI, the would note that Regulation SCI requires themselves FINRA members subject to Commission recognized that the BC/DR testing to include functional and Rule 4380. FINRA will encourage any requirements could have some cost performance testing, rather than simple such market participant to consider impact on designated firms. It connectivity testing, and that such voluntary participation in FINRA’s BC/ concluded, however, that such costs testing must occur at least once per 12 DR test, consistent with Commission were justified by the need for SCI months.8 Proposed Rule 4380(b) would guidance.11 entities to prepare for the possibility of further state that FINRA will notify FINRA has filed the proposed rule wide-scale disruptions in the securities members that are designated to change for immediate effectiveness. markets.14 participate in the BC/DR test at least 90 FINRA will announce its criteria for FINRA recognizes that the criteria it days prior to the scheduled testing designated members for mandatory test announces in its Regulatory Notice may date.9 participation in a Regulatory Notice by impose costs, particularly on those Finally, proposed Rule 4380(c) would November 3, 2015, the general members designated pursuant to the state the obligations of member firms compliance date for Regulation SCI. established criteria. However, the that are designated for mandatory FINRA anticipates that the first BC/DR Commission noted its belief that the participation in BC/DR testing. As noted test that will include designated costs of this requirement could be in the rule, designated members would members’ mandatory participation will mitigated by the fact that designated be required to fulfill, within the time occur in October, 2016. members are likely to be larger firms frames established by FINRA, certain 2. Statutory Basis with greater resources.15 Consistent testing requirements that FINRA with the Commission’s guidance, FINRA believes that the proposed rule determines are necessary and FINRA expects that its criteria will change is consistent with the provisions appropriate. These requirements could mitigate costs by designating larger of Section 15A(b)(6) of the Act,12 which include, for example, bringing up their firms that have greater resources, and requires that FINRA rules must be systems on the designated testing day likely have experience with the current designed to, among other things, foster and processing test scripts to simulate SIFMA-facilitated industry test, and cooperation and coordination with trading activity. Designated members therefore are more likely to have persons engaged in regulating, clearing, may also be required to satisfy related existing connections to FINRA’s backup reporting requirements, for example, settling, processing information with respect to, and facilitating transactions systems. Moreover, other firms who may reporting the member’s testing results, anticipate some competitive advantage so that FINRA may evaluate the efficacy in securities, to remove impediments to and perfect the mechanism of a free and to participating in the SCI testing are not of the test and, correspondingly, its BC/ precluded from doing so by this rule, DR plan.10 open market and a national market system, and, in general, to protect further mitigating any competitive FINRA recognizes that there may be effects of the rule. additional market participants that wish investors and the public interest. to participate on a voluntary basis in FINRA believes that the proposal, C. Self-Regulatory Organization's which would authorize FINRA to FINRA’s annual BC/DR test, beyond Statement on Comments on the compel participation by certain those that are designated under Rule Proposed Rule Change Received From designated members in FINRA’s BC/DR 4380. For example, certain system Members, Participants, or Others testing, is consistent with these participants may wish to test their provisions of the Act for the reasons Written comments were neither backup capabilities even if they do not articulated by the Commission when it solicited nor received. exceed the system’s threshold cutoff. adopted Regulation SCI. As the Additionally, third party service III. Date of Effectiveness of the Commission stated, ‘‘unless there is Proposed Rule Change and Timing for effective participation by certain of its 7 For example, should FINRA change its volume- Commission Action members or participants in the testing of based criteria, or the specified period of time over The Exchange has filed the proposed which such volume is measured (i.e., the look-back [BC/DR] plans, the objective of ensuring period), it would not apply any of those changes rule change pursuant to Section resilient and available markets in 16 retroactively. Instead, it would only apply such general, and the maintenance of fair and 19(b)(3)(A)(iii) of the Act and Rule changes, after notice, to the next testing cycle with 17 orderly markets in particular, would not 19b–4(f)(6) thereunder. Because the a full look-back period. proposed rule change does not: (i) 8 be achieved.’’ 13 See SCI Adopting Release, 79 FR at 72351–52. Significantly affect the protection of 9 FINRA believes, based on preliminary discussions among SCI entities that the yearly B. Self-Regulatory Organization's investors or the public interest; (ii) testing contemplated by this proposal would likely Statement on Burden on Competition impose any significant burden on take the place of the current industry test facilitated FINRA does not believe that the competition; and (iii) become operative by the Securities Industry and Financial Markets prior to 30 days from the date on which Association (‘‘SIFMA’’) each October. This would proposed rule change will result in any be consistent with Commission guidance— burden on competition that is not Regulation SCI recognized that the existing SIFMA necessary or appropriate in furtherance 14 See SCI Adopting Release, 79 FR at 72348–49. The Commission explained that the designation of test could provide a foundation for the regulation’s of the purposes of the Act. The proposal mandatory testing requirements. See SCI Adopting larger firms may result in minimal or relatively Release, 79 FR at 72349. modest administrative costs because such firms are 10 FINRA anticipates that compliance with this 11 See SCI Adopting Release, 79 FR at 72351 likely to already have established connectivity to proposal would be enforced consistent with n.1170 (encouraging SCI entities to permit backup sites and to monitor and maintain such existing FINRA rules and practice, and that a voluntary participation). connectivity. See id., 79 FR at 72341. designated firm’s failure to participate in mandatory 12 15 U.S.C. 78o–3(b)(6). 15 See SCI Adopting Release, 79 FR at 72351. testing could result in possible sanctions, including 13 SCI Adopting Release, 79 FR at 72351 (internal 16 15 U.S.C. 78s(b)(3)(A)(iii). fines, under FINRA Rule 8310. citations omitted). 17 17 CFR 240.19b–4(f)(6).

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it was filed, or such shorter time as the Paper Comments SECURITIES AND EXCHANGE Commission may designate, if • COMMISSION consistent with the protection of Send paper comments in triplicate to Brent J. Fields, Secretary, Securities [Release No. 34–76362; File No. SR– investors and the public interest, the NYSEArca–2015–73] proposed rule change has become and Exchange Commission, 100 F Street effective pursuant to Section 19(b)(3)(A) NE., Washington, DC 20549–1090. Self-Regulatory Organizations; NYSE of the Act and Rule 19b–4(f)(6)(iii) All submissions should refer to File Arca, Inc.; Notice of Designation of a thereunder. A proposed rule change Number SR–FINRA–2015–046. This file Longer Period for Commission Action filed under Rule 19b–4(f)(6) 18 normally number should be included on the on a Proposed Rule Change, as does not become operative prior to 30 Modified by Amendments No. 1 and 3, days after the date of the filing. subject line if email is used. To help the Commission process and review your Relating to Listing and Trading of However, pursuant to Rule 19b– Shares of the Guggenheim Total comments more efficiently, please use 4(f)(6)(iii),19 the Commission may Return Bond ETF Under NYSE Arca only one method. The Commission will designate a shorter time if such action Equities Rule 8.600 is consistent with the protection of post all comments on the Commission’s investors and the public interest. Internet Web site (http://www.sec.gov/ November 5, 2015. The Exchange has asked the rules/sro.shtml). Copies of the On September 1, 2015, NYSE Arca, Commission to waive the 30-day submission, all subsequent Inc. (‘‘Exchange’’) filed with the operative delay so that the proposal may amendments, all written statements Securities and Exchange Commission become operative immediately upon with respect to the proposed rule (‘‘Commission’’), pursuant to Section filing. The Commission believes that change that are filed with the 19(b)(1) of the Securities Exchange Act waiving the 30-day operative delay is Commission, and all written of 1934 (‘‘Act’’) 1 and Rule 19b–4 2 consistent with the protection of communications relating to the thereunder, a proposed rule change to investors and the public interest as it proposed rule change between the list and trade shares (‘‘Shares’’) of the will allow the Exchange to incorporate Commission and any person, other than Guggenheim Total Return Bond ETF (‘‘Fund’’). On September 15, 2015, the changes required under Regulation SCI, those that may be withheld from the Exchange submitted Amendment No. 1 such as establishing standards for public in accordance with the to the proposal. The proposed rule designating BC/DR participants, prior to provisions of 5 U.S.C. 552, will be the November 3, 2015 compliance date. change, as modified by Amendment No. available for Web site viewing and 1, was published for comment in the Accordingly, the Commission printing in the Commission’s Public designates the proposed rule change to Federal Register on September 22, Reference Room, 100 F Street NE., be operative upon filing.20 2015.3 On September 22, 2015, the At any time within 60 days of the Washington, DC 20549, on official Exchange submitted Amendment No. 3 filing of the proposed rule change, the business days between the hours of 10 to the proposed rule change.4 The Commission summarily may a.m. and 3 p.m. Copies of such filing Commission received no comment temporarily suspend such rule change if also will be available for inspection and letters on the proposed rule change, as it appears to the Commission that such copying at the principal office of modified by Amendment No. 1. action is necessary or appropriate in the FINRA. All comments received will be Section 19(b)(2) of the Act 5 provides public interest, for the protection of posted without change; the Commission that, within 45 days of the publication investors, or otherwise in furtherance of does not edit personal identifying of notice of the filing of a proposed rule the purposes of the Act. If the information from submissions. You change, or within such longer period up Commission takes such action, the should submit only information that to 90 days as the Commission may Commission shall institute proceedings you wish to make available publicly. All designate if it finds such longer period to determine whether the proposed rule submissions should refer to File to be appropriate and publishes its should be approved or disapproved. Number SR–FINRA–2015–046 and reasons for so finding or as to which the self-regulatory organization consents, IV. Solicitation of Comments should be submitted on or before December 3, 2015. the Commission shall either approve the Interested persons are invited to proposed rule change, disapprove the submit written data, views and For the Commission, by the Division of proposed rule change, or institute arguments concerning the foregoing, Trading and Markets, pursuant to delegated proceedings to determine whether the including whether the proposed rule authority.21 proposed rule change should be change is consistent with the Act. Robert W. Errett, disapproved. The Commission is Comments may be submitted by any of Deputy Secretary. extending this 45-day time period. the following methods: [FR Doc. 2015–28681 Filed 11–10–15; 8:45 am] The Commission finds that it is appropriate to designate a longer period BILLING CODE 8011–01–P Electronic Comments within which to take action on the • Use the Commission’s Internet comment form (http://www.sec.gov/ 1 15 U.S.C. 78s(b)(1). rules/sro.shtml); or 2 17 CFR 240.19b–4. • Send an email to rule-comments@ 3 See Securities Exchange Act Release No. 75930 sec.gov. Please include File Number SR– (September 16, 2015), 80 FR 57251. FINRA–2015–046 on the subject line. 4 On September 21, 2015, the Exchange submitted and withdrew Amendment No. 2 to the proposal. In Amendment No. 3, the Exchange clarified certain 18 17 CFR 240.19b–4(f)(6). representations regarding the availability of 19 17 CFR 240.19b–4(f)(6)(iii). quotation, last sale, and pricing information for the 20 For purposes only of waiving the 30-day Shares and the instruments in which the Fund may operative delay, the Commission has also invest. Amendment No. 3 is available at http:// considered the proposed rule’s impact on www.sec.gov/comments/sr-nysearca-2015-73/ efficiency, competition, and capital formation. See nysearca201573-2.pdf. 15 U.S.C. 78c(f). 21 17 CFR 200.30–3(a)(12). 5 15 U.S.C. 78s(b)(2).

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proposed rule change so that it has connection with Regulation Systems disruption.’’ 6 The Exchange has put sufficient time to consider the proposed Compliance and Integrity (‘‘Regulation extensive time and resources toward rule change. Accordingly, the SCI’’).5 planning for system failures and already Commission, pursuant to Section The text of the proposed rule change maintains robust BC/DR Plans 19(b)(2) of the Act,6 designates is available on the Exchange’s Web site consistent with the Rule. As set forth December 21, 2015, as the date by at http://nasdaq.cchwallstreet.com, at below, in connection with Regulation which the Commission should either the principal office of the Exchange, and SCI, the Exchange is proposing to approve or disapprove or institute at the Commission’s Public Reference require certain Members to participate proceedings to determine whether to Room. in testing of the operation of the disapprove the proposed rule change Exchange’s BC/DR Plans. II. Self-Regulatory Organization’s (File Number SR–NYSEArca–2015–73), With respect to an SCI entity’s BC/DR Statement of the Purpose of, and as modified by Amendments No. 1 and Plans, including its backup systems, Statutory Basis for, the Proposed Rule 3. paragraph (a) of Rule 1004 of Regulation Change For the Commission, by the Division of SCI requires each SCI entity to: Trading and Markets, pursuant to delegated In its filing with the Commission, the ‘‘[e]stablish standards for the authority.7 Exchange included statements designation of those members or Robert W. Errett, concerning the purpose of and basis for participants that the SCI entity Deputy Secretary. the proposed rule change and discussed reasonably determines are, taken as a any comments it received on the whole, the minimum necessary for the [FR Doc. 2015–28682 Filed 11–10–15; 8:45 am] proposed rule change. The text of these maintenance of fair and orderly markets BILLING CODE 8011–01–P statements may be examined at the in the event of the activation of such places specified in Item IV below. The plans.’’ 7 Paragraph (b) of Rule 1004 of SECURITIES AND EXCHANGE Exchange has prepared summaries, set Regulation SCI further requires each SCI COMMISSION forth in sections A, B, and C below, of entity to ‘‘[d]esignate members or the most significant aspects of such participants pursuant to the standards [Release No. 34–76368; File No. SR– statements. established in paragraph (a) of [Rule NASDAQ–2015–134] 1004] and require participation by such A. Self-Regulatory Organization's designated members or participants in Self-Regulatory Organizations; The Statement of the Purpose of, and scheduled functional and performance NASDAQ Stock Market LLC; Notice of Statutory Basis for, the Proposed Rule testing of the operation of such plans, in Filing and Immediate Effectiveness of Change the manner and frequency specified by Proposed Rule Change To Adopt the SCI entity, provided that such Business Continuity and Disaster 1. Purpose frequency shall not be less than once Nasdaq is proposing to adopt new Recovery Plans Testing Requirements every 12 months.’’ 8 In order to comply Rule 1170 to implement the BC/DR with Rule 1004 of Regulation SCI, the November 5, 2015. Plans requirements of Rule 1004 of Pursuant to Section 19(b)(1) of the Exchange proposes to adopt new Rule Regulation SCI. As adopted by the 1170, which incorporates the Securities Exchange Act of 1934 Commission, Regulation SCI applies to (‘‘Act’’),1 and Rule 19b–4 thereunder,2 requirements of Rule 1004 of Regulation certain self-regulatory organizations SCI as part of the Exchange’s rules, and notice is hereby given that on November (including the Exchange), alternative 2, 2015, The NASDAQ Stock Market sets forth the notice, selection criteria trading systems (‘‘ATSs’’), plan and obligations of Members and LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed processors, and exempt clearing with the Securities and Exchange Participants with respect to BC/DR agencies (collectively, ‘‘SCI entities’’), Plans testing. Nasdaq proposes to adopt Commission (‘‘SEC’’ or ‘‘Commission’’) and will require these SCI entities to the proposed rule change as described Rule 1170(a), which will set forth the comply with requirements with respect Exchange’s obligations with respect to in Items I and II, below, which Items to the automated systems central to the have been prepared by the Exchange. the selection of Members and performance of their regulated activities. Participants for testing. Specifically, the The Commission is publishing this Among the requirements of Regulation notice to solicit comments on the rule will require Nasdaq to ‘‘[e]stablish SCI is Rule 1001(a)(2)(v), which requires standards for the designation of those proposed rule change from interested the Exchange and other SCI entities to persons. Members and Options Participants that maintain ‘‘[b]usiness continuity and Nasdaq reasonably determines are, I. Self-Regulatory Organization’s disaster recovery plans that include taken as a whole, the minimum Statement of the Terms of Substance of maintaining backup and recovery necessary for the maintenance of fair the Proposed Rule Change capabilities sufficiently resilient and and orderly markets in the event of the geographically diverse and that are The Exchange proposes to adopt activation of such plans.’’ The proposed reasonably designed to achieve next business continuity and disaster new rule further provides that ‘‘[s]uch business day resumption of trading and recovery plans (‘‘BC/DR Plans’’) testing standards may include volume-based two-hour resumption of critical SCI requirements applicable to Exchange and/or market share-based criteria, and systems following a wide-scale Members 3 and Options Participants 4 in may be adjusted from time to time by Nasdaq.’’ Lastly, the proposed new rule ‘‘transact business on NOM via the Trading System. 6 Id. Options Participants may trade options for their will require Nasdaq to provide public 7 17 CFR 200.30–3(a)(31). own proprietary accounts or, if authorized to do so notice of the standards that it adopts. 1 15 U.S.C. 78s(b)(1). under applicable law, and consistent with these Nasdaq is proposing to adopt Rule 2 17 CFR 240.19b–4. NOM Rules and with applicable law and SEC rules 1170(b), which will set forth the 3 The term ‘‘Member’’ is defined as ‘‘any and regulations, may conduct business on behalf of obligations of Nasdaq and its Members registered broker or dealer that has been admitted Customers.’’ See NOM Option Rules, Chapter II, to membership in Nasdaq.’’ See Exchange Rule Section 1(a). 0120(i). 5 See Securities Exchange Act Release No. 73639 6 17 CFR 242.1001(a)(2)(v). 4 The term ‘‘Options Participant’’ is defined as a (November 19, 2014), 79 FR 72252 (December 5, 7 17 CFR 242.1004(a). category of Nasdaq Member that is authorized to 2014) (‘‘SCI Adopting Release’’). 8 17 CFR 242.1004(b).

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and Participants with respect to testing. participation on each of those markets. adopt clear and objective criteria with Specifically, the rule will require The Exchange will provide notice of a respect to the designation of Members Nasdaq to ‘‘designate Members and Members’ and Participants’ selection at and Participants that are required to Options Participants pursuant to the least six months prior to the next BC/ participate in the testing of the standards established in paragraph (a) of DR Plans test date. All notices Exchange’s BC/DR Plans, as well as this rule and require participation by concerning BC/DR Plans testing will be appropriate notification regarding such such designated Members and Options posted on Nasdaq’s Web site. designation. As set forth in the SCI Participants in scheduled functional The Exchange is proposing to initially Adopting Release, ‘‘SROs have the and performance testing of the operation select Members and Participants with authority, and legal responsibility, of such plans, in the manner and the highest levels of trading volume on under Section 6 of the Exchange Act, to frequency specified by Nasdaq, Nasdaq and NOM over four calendar adopt and enforce rules (including rules provided that such frequency shall not months (‘‘Measurement Period’’) as to comply with Regulation SCI’s be less than once every 12 months.’’ mandatory testing Members and requirements relating to BC/DR testing) Moreover, the rule will require Nasdaq Participants, respectively.11 applicable to their members or to provide at least six months prior Specifically, the Measurement Period participants that are designed to, among notice to Members and Participants that will be the four calendar months of other things, foster cooperation and are designated for mandatory testing. trading immediately prior to Nasdaq’s coordination with persons engaged in Lastly, the rule will provide notice that announcement of the next BC/DR Plans regulating, clearing, settling, processing participation in testing is a condition of test date. The Measurement Period will information with respect to, and membership for Members and always begin at a point after Nasdaq facilitating transactions in securities, to Participants that are designated for announces the criteria to be used in the remove impediments to and perfect the testing. next BC/DR Plans test. By way of mechanism of a free and open market The Exchange encourages all example, if on October 6, 2017 Nasdaq and a national market system, and, in Members and Participants to connect to announced the BC/DR Plans test general, to protect investors and the the Exchange’s backup systems and to selection criteria and on March 2, 2018 public interest.’’ 15 The Exchange 9 participate in testing of such systems; Nasdaq announced a BC/DR Plans test believes that this proposal is consistent however, certain Members and date of September 8, 2018, the with such authority and legal Participants will be obligated to Measurement Period used to select responsibility. participate in BC/DR Plans testing. In Members and Participants subject to adopting new Rule 1170, the Exchange mandatory testing would be November B. Self-Regulatory Organization's will require mandatory participation in 2017 through February 2018. Members Statement on Burden on Competition BC/DR Plans testing by those Members and Participants not obligated to The Exchange does not believe that and Participants that the Exchange participate that wish to participate in the proposed rule change will result in reasonably determines are, taken as a this test must inform Nasdaq no later any burden on competition that is not whole, the minimum necessary for the than September 1, 2018.12 necessary or appropriate in furtherance maintenance of fair and orderly markets of the purposes of the Act, as amended. 2. Statutory Basis in the event of the activation of such To the contrary, the proposal is not a plans on the Exchange and NOM, The Exchange believes that the competitive proposal but rather is respectively. The Exchange believes that proposed rule change is consistent with necessary for the Exchange’s using overall participation on its Section 6 of the Act,13 in general, and compliance with Regulation SCI. markets (by volume and/or market further the objectives of Section 6(b)(5) share) as a measure to select Members of the Act,14 in particular, in that it is C. Self-Regulatory Organization's and Participants for mandatory designed to prevent fraudulent and Statement on Comments on the participation in BC/DR Plans testing is manipulative acts and practices, to Proposed Rule Change Received From a reasonable means by which it can promote just and equitable principles of Members, Participants, or Others determine which Members and trade, to foster cooperation and No written comments were either Participants are necessary for the coordination with persons engaged in solicited or received. maintenance of fair and orderly markets regulating, clearing, settling, processing in the event of the activation of such information with respect to, and III. Date of Effectiveness of the 10 plans. For each BC/DR Plans test facilitating transactions in securities, to Proposed Rule Change and Timing for cycle, Nasdaq will select the top ten remove impediments to and perfect the Commission Action Members on the Exchange and the top mechanism of a free and open market The Exchange has filed the proposed five Participants on NOM based on and a national market system, and, in rule change pursuant to Section Nasdaq’s measure of overall general, to protect investors and the 19(b)(3)(A) of the Act 16 and Rule 19b– public interest; and are not designed to 4(f)(6)(iii) thereunder.17 Because the 9 In this regard, Nasdaq will allow any Member proposed rule change does not: (i) or Participant to participate in the testing of the permit unfair discrimination between Exchange’s BC/DR Plans, which is consistent with customers, issuers, brokers, or dealers. Significantly affect the protection of the Plan. See SCI Adopting Release, supra note 5 The proposal will ensure that the investors or the public interest; (ii) at 72350. Nasdaq will provide instructions on how Members and Participants necessary to impose any significant burden on a Member and Participant must inform Nasdaq of its interest in participating in an upcoming BC/DR ensure the maintenance of fair and competition; and (iii) become operative Plans test via the announcement of the test date. A orderly markets are properly designated prior to 30 days from the date on which Member or Participant must provide Nasdaq notice consistent with Rule 1004 of Regulation it was filed, or such shorter time as the of its interest to participate at least a week prior to SCI. Specifically, the proposal will Commission may designate, if the test date and must have the appropriate connection for testing in place. consistent with the protection of 11 10 Nasdaq will provide notice of the specific Nasdaq may change the total number of selection criteria and measurement period in a Members selected from time to time. 15 See SCI Adopting Release, supra note 5 at notice to Members and Participants. The initial 12 See note 9. 72350. selection criteria and measurement period will be 13 15 U.S.C. 78f. 16 15 U.S.C. 78s(b)(3)(A)(iii). announced no later than November 3, 2015. 14 15 U.S.C. 78f(b)(5). 17 17 CFR 240.19b–4(f)(6).

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investors and the public interest, the • Send an email to rule- SECURITIES AND EXCHANGE proposed rule change has become [email protected]. Please include File COMMISSION effective pursuant to Section 19(b)(3)(A) Number SR±NASDAQ±2015±134 on the [Release No. 34–76366; File No. SR– of the Act and Rule 19b–4(f)(6)(iii) subject line. NYSEMKT–2015–85] thereunder.18 A proposed rule change 19 Paper Comments filed under Rule 19b–4(f)(6)(iii) Self-Regulatory Organizations; NYSE normally does not become operative • Send paper comments in triplicate MKT LLC; Notice of Filing of Proposed prior to 30 days after the date of the to Brent J. Fields, Secretary, Securities Rule Change to the Co-Location filing. However, pursuant to Rule 19b– and Exchange Commission, 100 F Street Services Offered by the Exchange (the 4(f)(6)(iii),20 the Commission may NE., Washington, DC 20549–1090. Offering of a Wireless Connection To designate a shorter time if such action Allow Users To Receive Market Data is consistent with the protection of All submissions should refer to File Feeds From Third Party Markets) and investors and the public interest. Number SR–NASDAQ–2015–134. This To Reflect Changes to the NYSE MKT The Exchange has asked the file number should be included on the Equities Price List and the NYSE Amex Commission to waive the 30-day subject line if email is used. To help the Options Fee Schedule Related to operative delay so that the proposal may Commission process and review your These Services become operative immediately upon comments more efficiently, please use November 5, 2015. filing. The Commission believes that only one method. The Commission will Pursuant to Section 19(b)(1) 1 of the waiving the 30-day operative delay is post all comments on the Commission’s consistent with the protection of Securities Exchange Act of 1934 (the Internet Web site (http://www.sec.gov/ investors and the public interest as it ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 rules/sro.shtml). will allow the Exchange to incorporate notice is hereby given that, on October changes required under Regulation SCI, Copies of the submission, all 23, 2015, NYSE MKT LLC (the such as establishing standards for subsequent amendments, all written ‘‘Exchange’’ or ‘‘NYSE MKT’’) filed with designating BC/DR participants, prior to statements with respect to the proposed the Securities and Exchange the November 3, 2015 compliance date. rule change that are filed with the Commission (the ‘‘Commission’’) the Accordingly, the Commission Commission, and all written proposed rule change as described in designates the proposed rule change to communications relating to the Items I, II, and III below, which Items be operative upon filing.21 proposed rule change between the have been prepared by the self- At any time within 60 days of the Commission and any person, other than regulatory organization. The filing of the proposed rule change, the those that may be withheld from the Commission is publishing this notice to Commission summarily may public in accordance with the solicit comments on the proposed rule temporarily suspend such rule change if provisions of 5 U.S.C. 552, will be change from interested persons. it appears to the Commission that such available for Web site viewing and I. Self-Regulatory Organization’s action is necessary or appropriate in the printing in the Commission’s Public Statement of the Terms of Substance of public interest, for the protection of Reference Room, 100 F Street NE., the Proposed Rule Change investors, or otherwise in furtherance of Washington, DC 20549, on official the purposes of the Act. If the The Exchange proposes to change the business days between the hours of Commission takes such action, the co-location services offered by the 10:00 a.m. and 3:00 p.m. Copies of the Commission shall institute proceedings Exchange to include a means for co- to determine whether the proposed rule filing also will be available for located Users to receive market data should be approved or disapproved. inspection and copying at the principal feeds from third party markets through office of the Exchange. All comments a wireless connection. In addition, the IV. Solicitation of Comments received will be posted without change; proposed rule change reflects changes to Interested persons are invited to the Commission does not edit personal the NYSE MKT Equities Price List submit written data, views, and identifying information from (‘‘Price List’’) and the NYSE Amex arguments concerning the foregoing, submissions. You should submit only Options Fee Schedule (‘‘Fee Schedule’’) including whether the proposed rule information that you wish to make related to these services. The text of the change is consistent with the Act. available publicly. All submissions proposed rule change is available on the Comments may be submitted by any of should refer to File Number SR± Exchange’s Web site at www.nyse.com, the following methods: NASDAQ±2015±134 and should be at the principal office of the Exchange, and at the Commission’s Public Electronic Comments submitted on or before December 3, 2015. Reference Room. • Use the Commission’s Internet comment form (http://www.sec.gov/ For the Commission, by the Division of II. Self-Regulatory Organization’s rules/sro.shtml); or Trading and Markets, pursuant to delegated Statement of the Purpose of, and authority.22 Statutory Basis for, the Proposed Rule 18 In addition, Rule 19b–4(f)(6) requires a self- Robert W. Errett, Change regulatory organization to give the Commission Deputy Secretary. In its filing with the Commission, the written notice of its intent to file the proposed rule self-regulatory organization included change at least five business days prior to the date [FR Doc. 2015–28697 Filed 11–10–15; 8:45 am] statements concerning the purpose of, of filing of the proposed rule change, or such BILLING CODE 8011–01–P shorter time as designated by the Commission. The and basis for, the proposed rule change Exchange has satisfied this requirement. and discussed any comments it received 19 17 CFR 240.19b–4(f)(6). on the proposed rule change. The text 20 17 CFR 240.19b–4(f)(6)(iii). of those statements may be examined at 21 For purposes only of waiving the 30-day operative delay, the Commission has also considered the proposed rule’s impact on 1 15 U.S.C. 78s(b)(1). efficiency, competition, and capital formation. See 2 15 U.S.C. 78a. 15 U.S.C. 78c(f). 22 17 CFR 200.30–3(a)(12). 3 17 CFR 240.19b–4.

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the places specified in Item IV below. light waves travel faster through air than A User would be charged a $5,000 The Exchange has prepared summaries, through glass (fiber optics), wireless non-recurring initial charge for each set forth in sections A, B, and C below, messages have lower latency than wireless connection and a monthly of the most significant parts of such messages travelling through fiber optics. recurring charge (‘‘MRC’’) that would statements. Under the proposed rule change, the vary depending upon the feed that the A. Self-Regulatory Organization's Exchange would utilize a network User opts to receive. If a User purchased Statement of the Purpose of, and vendor to provide a wireless connection two wireless connections, it would pay Statutory Basis for, the Proposed Rule to the Third Party Data through wireless two non-recurring initial charges. The Change connections from the Exchange access Exchange proposes to waive the first month’s MRC, to allow Users to test the 1. Purpose centers in Secaucus and Carteret, New Jersey, to its data center in Mahwah, receipt of the feed(s) for a month before The Exchange proposes to change the New Jersey, through a series of towers incurring any MRCs. 4 co-location services offered by the equipped with wireless equipment.6 The Exchange proposes that the Exchange to include a means for Users The wireless connectivity would be an wireless connections would include the to receive market data feeds from third optional offering, offering an alternative use of one port for connectivity to the party markets (the ‘‘Third Party Data’’) 5 method for connectivity to the Third Third Party Data. A User will only through a wireless connection. In Party Data. require one port to connect to the Third addition, this proposed rule change A User that chooses this optional Party Data, irrespective of how many of reflects changes to the Price List and the the five wireless connections it orders. Fee Schedule related to these co- service would be able to receive data If a User that has more than one wireless location services. feeds from NASDAQ and BATS Exchange, Inc. over a wireless connection wishes to use more than one The Exchange proposes to offer the 8 wireless connection to provide Users connection. To receive Third Party Data, port to connect to the Third Party Data, with an alternative means of the User would enter into a contract the Exchange proposes to make such connectivity for Third Party Data. with the relevant third party market, additional ports available for a monthly Wireless connections involve beaming which would charge the User the fee per port of $3,000. signals through the air between applicable market data fees for the Third The Exchange proposes to revise its antennas that are within sight of one Party Data. The Exchange would charge Price List and the Fee Schedule to another. Because the signals travel a the User fees for the wireless connection reflect fees related to these connections straight, unimpeded line, and because for the Third Party Data.7 and ports, as follows:

Description Amount of charge

Wireless connection of BATS Pitch BZX Gig shaped data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $6,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of DirectEdge EDGX Gig shaped data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $6,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of NASDAQ Totalview-ITCH data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $8,500. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of NASDAQ BX Totalview-ITCH data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $6,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of NASDAQ Totalview-ITCH and BX Totalview- $5,000 per connection initial charge plus monthly charge per connec- ITCH data. tion of $12,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Port for wireless connection ...... $3,000 monthly charge per port, excluding first port.

4 The Exchange initially filed rule changes As specified in the Price List and the Fee Schedule, a new optional wireless connectivity for collocated relating to its co-location services with the a User that incurs co-location fees for a particular clients). Securities and Exchange Commission co-location service pursuant thereto would not be 7 A User would only receive the Third Party Data (‘‘Commission’’) in 2010. See Securities Exchange subject to co-location fees for the same co-location for which it had entered into a contract. For Act Release No. 62961 (September 21, 2010), 75 FR service charged by the Exchange’s affiliates New example, a User that contracted with NASDAQ for 59299 (September 27, 2010) (SR–NYSEAmex–2010– York Stock Exchange LLC and NYSE Arca, Inc. See the NASDAQ Totalview-ITCH data feed but did not 80). The Exchange operates a data center in Securities Exchange Act Release No. 70176 (August Mahwah, New Jersey (the ‘‘data center’’) from contract to receive any other Third Party Data which it provides co-location services to Users. 13, 2013), 78 FR 50471 (August 19, 2013) (SR– would receive only the NASDAQ Totalview-ITCH NYSEMKT–2013–67). 5 For purposes of the Exchange’s co-location data feed through its wireless connection. services, a ‘‘User’’ means any market participant 6 The NASDAQ Stock Market LLC (‘‘NASDAQ’’) 8 For example, a User with two wireless that requests to receive co-location services directly offers a similar wireless service. See Securities connections for Third Party Data may opt to from the Exchange. See Securities Exchange Act Exchange Act Release No. 68735 (January 25, 2013), purchase an additional port in order to route the Release No. 76009 (September 29, 2015), 80 FR 78 FR 6842 (January 31, 2013) (SR–NASDAQ–2012– options and equity data it receives to different 60213 (October 5, 2015) (SR–NYSEMKT–2015–67). 119) (approving a proposed rule change to establish cabinets.

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There is limited bandwidth available only to the Exchange or to the Exchange provide Users with choices with respect on the wireless connection for data and one or both of its affiliates.12 to the form and optimal latency of the feeds from third parties, and so the The proposed change is not otherwise connectivity they use to receive Third Exchange has opted to offer only the intended to address any other issues Party Data, allowing a User that opts to Third Party Data, which are data feeds relating to co-location services and/or receive Third Party Data to select the that are in high demand from Users. The related fees, and the Exchange is not connectivity and number of ports that wireless network offered by the aware of any problems that Users would better suit its needs, helping it tailor its Exchange, although constrained by have in complying with the proposed data center operations to the bandwidth with respect to the number change. requirements of its business operations. The Exchange also believes that the of feeds it can carry, can be made 2. Statutory Basis available to an unlimited number of proposed rule change is consistent with Users. The Exchange believes that the Section 6(b)(4) of the Act,15 in proposed rule change is consistent with The Exchange proposes to offer the particular, because it provides for the Section 6(b) of the Act,13 in general, and equitable allocation of reasonable dues, wireless connection to provide Users furthers the objectives of Sections with an alternative means of fees, and other charges among its 6(b)(5) of the Act,14 in particular, member organizations, issuers and other connectivity for Third Party Data. because it is designed to prevent persons using its facilities and does not Currently, Users can receive Third Party fraudulent and manipulative acts and unfairly discriminate between Data from wireless networks offered by practices, to promote just and equitable 9 customers, issuers, brokers or dealers. third party vendors. Users can also principles of trade, to foster cooperation Overall, the Exchange believes that receive Third Party Data through other and coordination with persons engaged the proposed change is reasonable methods, including, for example, from in regulating, clearing, settling, because the Exchange proposes to offer another User, through a processing information with respect to, wireless connection for Third Party Data telecommunications provider, or over and facilitating transactions in described herein as a convenience to 10 the internet protocol (‘‘IP’’) network. securities, to remove impediments to, Users, but in doing so would incur The wireless connection to the Third and perfect the mechanisms of, a free certain costs, including costs related to Party Data is expected to be available no and open market and a national market the data center facility, hardware and later than March 1, 2016. The Exchange system and, in general, to protect equipment and costs related to will announce the date that the wireless investors and the public interest and personnel required for initial connection to the Third Party Data will because it is not designed to permit installation and monitoring, support be available through a customer notice. unfair discrimination between and maintenance of such services. The As is the case with all Exchange co- customers, issuers, brokers, or dealers. costs associated with the wireless location arrangements, (i) neither a User The Exchange believes that the connections are incrementally higher nor any of the User’s customers would proposed services are not designed to than fiber optics-based solutions due to be permitted to submit orders directly to permit unfair discrimination between the expense of the wireless equipment, the Exchange unless such User or customers, issuers, brokers, or dealers cost of installation and testing and customer is a member organization, a because the wireless connection for ongoing maintenance of the network. Sponsored Participant or an agent Third Party Data would provide Users The Exchange believes that the thereof (e.g., a service bureau providing with an alternative means of proposed pricing for the wireless order entry services); (ii) use of the co- connectivity for Third Party Data. Users connection for Third Party Data is location services proposed herein would that do not opt to utilize the Exchange’s reasonable because it allows Users to be completely voluntary and available proposed wireless connections would select the Third Party Data connectivity to all Users on a non-discriminatory still be able to obtain Third Party Data option and number of ports that better basis; 11 and (iii) a User would only through other methods, including, for suit their needs. The fees also reflect the incur one charge for the particular co- example, from wireless networks offered benefit received by Users in terms of location service described herein, by third party vendors, another User, lower latency over the fiber optics regardless of whether the User connects through a telecommunications provider, option. The Exchange believes that the or over the IP network. Users that opt proposed waiver of the first month’s MRC is reasonable as it would allow 9 Currently, at least four third party vendors offer to use wireless connections for Third Users wireless network connections using wireless Party Data would not receive Third Users to test the receipt of the feed(s) for equipment installed on towers and buildings near Party Data that is not available to all a month before incurring any monthly the data center. Users, as all market participants that recurring fees and may act as an 10 The IP network is a local area network available incentive to Users to utilize the new in the data center. See Securities Exchange Act contract with the relevant third party Release No. 74220 (February 6, 2015), 80 FR 7894 market for the Third Party Data may service. (February 12, 2015) (SR–NYSEMKT–2015–08) receive it. The Exchange believes that the (notice of filing and immediate effectiveness of The Exchange believes that this proposed change is equitable and not proposed rule change to include IP network removes impediments to, and perfects unfairly discriminatory because it will connections). result in fees being charged only to 11 As is currently the case, Users that receive co- the mechanisms of, a free and open location services from the Exchange will not receive market and a national market system Users that voluntarily select to receive any means of access to the Exchange’s trading and and, in general, protects investors and the corresponding services and because execution systems that is separate from, or superior the public interest because it would those services will be available to all to, that of other Users. In this regard, all orders sent Users. Furthermore, the Exchange to the Exchange enter the Exchange’s trading and execution systems through the same order gateway, 12 See SR–NYSEMKT–2013–67, supra note 5 at believes that the services and fees regardless of whether the sender is co-located in the 50471. The Exchange’s affiliates have also proposed herein are not unfairly data center or not. In addition, co-located Users do submitted substantially the same proposed rule discriminatory and are equitably not receive any market data or data service product change to propose the changes described herein. allocated because, in addition to the that is not available to all Users, although Users that See SR–NYSE–2015–52 and SR–NYSEArca–2015– receive co-location services normally would expect 99. services being completely voluntary, reduced latencies in sending orders to, and 13 15 U.S.C. 78f(b). receiving market data from, the Exchange. 14 15 U.S.C. 78f(b)(5). 15 15 U.S.C. 78f(b)(4).

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they are available to all Users on an that do not opt to utilize wireless rule change reflects this competitive equal basis (i.e., the same products and connections would be able to obtain environment. services are available to all Users). All Third Party Data through other methods, C. Self-Regulatory Organization's Users that voluntarily select wireless including, for example, from another Statement on Comments on the connections and ports would be charged User, through a telecommunications Proposed Rule Change Received From the same amount for the same services provider, or over the IP network. In this and would have their first month MRC way, the proposed changes would Members, Participants, or Others for wireless connections waived. enhance competition by helping Users No written comments were solicited For the reasons above, the proposed tailor their connectivity for Third Party or received with respect to the proposed changes do not unfairly discriminate Data to the needs of their business rule change. between or among market participants operations by allowing them to select III. Date of Effectiveness of the that are otherwise capable of satisfying the form and optimal latency of the Proposed Rule Change and Timing for any applicable co-location fees, connectivity they use to receive Third Commission Action requirements, terms and conditions Party Data that best suits their needs, established from time to time by the helping them tailor their data center Within 45 days of the date of Exchange. operations to the requirements of their publication of this notice in the Federal Finally, the Exchange believes that it business operations. Register or up to 90 days (i) as the is subject to significant competitive The proposed wireless connection to Commission may designate if it finds forces, as described below in the the Third Party Data would traverse such longer period to be appropriate Exchange’s statement regarding the wireless connections through a series of and publishes its reasons for so finding burden on competition. towers equipped with wireless or (ii) as to which the self-regulatory For these reasons, the Exchange equipment, including a pole on the organization consents, the Commission believes that the proposal is consistent grounds of the data center. The will: with the Act. proposed wireless network would have (A) by order approve or disapprove the proposed rule change, or B. Self-Regulatory Organization's exclusive rights to operate wireless (B) institute proceedings to determine Statement on Burden on Competition equipment on the data center pole. The Exchange will not sell rights to third whether the proposed rule change In accordance with Section 6(b)(8) of parties to operate wireless equipment on should be disapproved. the Act,16 the Exchange believes that the the pole, due to space limitations, IV. Solicitation of Comments proposed rule change will not impose security concerns, and the interference any burden on competition that is not that would arise between equipment Interested persons are invited to necessary or appropriate in furtherance placed too closely together. In addition submit written data, views, and of the purposes of the Act because, in to space issues, there are contractual arguments concerning the foregoing, addition to the proposed services being restrictions on the use of the roof that including whether the proposed rule completely voluntary, they are available the Exchange has determined would not change is consistent with the Act. to all Users on an equal basis (i.e. the be met if it offered space on the roof for Comments may be submitted by any of same products and services are available third party wireless equipment. the following methods: to all Users). Moreover, access to the pole or roof is Electronic Comments The Exchange believes that allowing not required for third parties to establish • Users to receive Third Party Data wireless networks that can compete Use the Commission’s Internet through a wireless connection will not with the Exchange’s proposed service, comment form (http://www.sec.gov/ impose any burden on competition that rules/sro.shtml); or as witnessed by the existing wireless • is not necessary or appropriate in networks currently serving Users. Based Send an email to rule- furtherance of the purposes of the Act on the information available to it, the [email protected]. Please include File because such access will satisfy User Exchange believes that its proposed Number SR–NYSEMKT–2015–85 on the demand for additional options for wireless connection would provide data subject line. connectivity for Third Party Data. at the same or similar speed, and at the Paper Comments Currently, Users can receive Third Party same or similar cost, as its proposed • Send paper comments in triplicate Data from wireless networks offered by wireless connection, thereby enhancing to Brent J. Fields, Secretary, Securities third party vendors. Based on the competition.17 information available to it, the Exchange Finally, the Exchange notes that it and Exchange Commission, 100 F Street believes that its proposed wireless operates in a highly competitive market NE., Washington, DC 20549–1090. connection would provide data at the in which market participants can All submissions should refer to File same or similar speed and at the same readily favor competing venues if they Number SR–NYSEMKT–2015–85. This or similar cost as the existing wireless deem fee levels at a particular venue to file number should be included on the networks. Accordingly, the proposed be excessive. In such an environment, subject line if email is used. To help the wireless connection for Third Party Data the Exchange must continually review, Commission process and review your would provide Users with an additional and consider adjusting, its services and comments more efficiently, please use wireless connectivity option, thereby related fees and credits to remain only one method. The Commission will enhancing competition. competitive with other exchanges. For post all comments on the Commission’s The Exchange notes that the proposed the reasons described above, the Internet Web site (http://www.sec.gov/ wireless connection would compete not Exchange believes that the proposed rules/sro.shtml). Copies of the just with other wireless connections, but submission, all subsequent also with fiber optic networks, which 17 The Exchange notes that the distance of a amendments, all written statements may be more attractive to some Users as wireless network provider’s wireless equipment with respect to the proposed rule they are more reliable and less from the User is only one factor in determining change that are filed with the overall latency. Other factors include the number of susceptible to weather conditions. Users repeaters in the route, the number of switches the Commission, and all written data has to travel through, and the millimeter wave communications relating to the 16 15 U.S.C. 78f(b)(8). and switch technology used. proposed rule change between the

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Commission and any person, other than solicit comments on the proposed rule addition, this proposed rule change those that may be withheld from the change from interested persons. reflects changes to the Fee Schedules public in accordance with the related to these co-location services. I. Self-Regulatory Organization’s provisions of 5 U.S.C. 552, will be The Exchange proposes to offer the Statement of the Terms of Substance of available for Web site viewing and wireless connection to provide Users the Proposed Rule Change printing in the Commission’s Public with an alternative means of Reference Room, 100 F Street NE., The Exchange proposes to change the connectivity for Third Party Data. Washington, DC 20549, on official co-location services offered by the Wireless connections involve beaming business days between the hours of Exchange to include a means for co- signals through the air between 10:00 a.m. and 3:00 p.m. Copies of the located Users to receive market data antennas that are within sight of one filing also will be available for feeds from third party markets through another. Because the signals travel a inspection and copying at the principal a wireless connection. In addition, the straight, unimpeded line, and because office of the Exchange. All comments proposed rule change reflects changes to light waves travel faster through air than received will be posted without change; the NYSE MKT Equities Price List through glass (fiber optics), wireless the Commission does not edit personal (‘‘Price List’’) and the NYSE Amex messages have lower latency than identifying information from Options Fee Schedule (‘‘Fee Schedule’’) messages travelling through fiber optics. submissions. You should submit only related to these services. The text of the Under the proposed rule change, the information that you wish to make proposed rule change is available on the Exchange would utilize a network available publicly. All submissions Exchange’s Web site at www.nyse.com, vendor to provide a wireless connection should refer to File Number SR– at the principal office of the Exchange, to the Third Party Data through wireless NYSEMKT–2015–85 and should be and at the Commission’s Public connections from the Exchange access submitted on or before December 3, Reference Room. centers in Secaucus and Carteret, New 2015. Jersey, to its data center in Mahwah, II. Self-Regulatory Organization’s New Jersey, through a series of towers For the Commission, by the Division of Statement of the Purpose of, and equipped with wireless equipment.6 Trading and Markets, pursuant to delegated Statutory Basis for, the Proposed Rule The wireless connectivity would be an authority.18 Change optional offering, offering an alternative Robert W. Errett, In its filing with the Commission, the method for connectivity to the Third Deputy Secretary. self-regulatory organization included Party Data. [FR Doc. 2015–28686 Filed 11–10–15; 8:45 am] statements concerning the purpose of, A User that chooses this optional BILLING CODE 8011–01–P and basis for, the proposed rule change service would be able to receive data and discussed any comments it received feeds from NASDAQ and BATS on the proposed rule change. The text Exchange, Inc. over a wireless SECURITIES AND EXCHANGE of those statements may be examined at connection. To receive Third Party Data, COMMISSION the places specified in Item IV below. the User would enter into a contract with the relevant third party market, [Release No. 34–76364; File No. SR– The Exchange has prepared summaries, NYSEArca–2015–99] set forth in sections A, B, and C below, which would charge the User the of the most significant parts of such applicable market data fees for the Third Self-Regulatory Organizations; NYSE statements. Party Data. The Exchange would charge Arca, Inc.; Notice of Filing of Proposed the User fees for the wireless connection A. Self-Regulatory Organization's Rule Change to the Co-Location for the Third Party Data.7 Statement of the Purpose of, and Services Offered by the Exchange (the A User would be charged a $5,000 Statutory Basis for, the Proposed Rule Offering of a Wireless Connection To non-recurring initial charge for each Change Allow Users To Receive Market Data wireless connection and a monthly Feeds From Third Party Markets) and 1. Purpose recurring charge (‘‘MRC’’) that would vary depending upon the feed that the To Reflect Changes to the NYSE Arca The Exchange proposes to change the User opts to receive. If a User purchased Options Fee Schedule and the NYSE co-location 4 services offered by the two wireless connections, it would pay Arca Equities Schedule of Fees and Exchange to include a means for Users Charges Related to These Services two non-recurring initial charges. The to receive market data feeds from third Exchange proposes to waive the first November 5, 2015. party markets (the ‘‘Third Party Data’’) 5 month’s MRC, to allow Users to test the Pursuant to Section 19(b)(1) 1 of the through a wireless connection. In receipt of the feed(s) for a month before

Securities Exchange Act of 1934 (the 4 incurring any MRCs. 2 3 The Exchange initially filed rule changes ‘‘Act’’) and Rule 19b–4 thereunder, relating to its co-location services with the notice is hereby given that, on October Securities and Exchange Commission Stock Exchange LLC and NYSE MKT LLC. See 23, 2015, NYSE Arca, Inc. (the (‘‘Commission’’) in 2010. See Securities Exchange Securities Exchange Act Release No. 70173 (August ‘‘Exchange’’ or ‘‘NYSE Arca’’) filed with Act Release No. 63275 (November 8, 2010), 75 FR 13, 2013), 78 FR 50459 (August 19, 2013) (SR– 70048 (November 16, 2010) (SR–NYSEArca–2010– NYSEArca–2013–80). the Securities and Exchange 100). The Exchange operates a data center in 6 The NASDAQ Stock Market LLC (‘‘NASDAQ’’) Commission (the ‘‘Commission’’) the Mahwah, New Jersey (the ‘‘data center’’) from offers a similar wireless service. See Securities proposed rule change as described in which it provides co-location services to Users. Exchange Act Release No. 68735 (January 25, 2013), Items I, II, and III below, which Items 5 For purposes of the Exchange’s co-location 78 FR 6842 (January 31, 2013) (SR–NASDAQ–2012– services, a ‘‘User’’ means any market participant 119) (approving a proposed rule change to establish have been prepared by the self- that requests to receive co-location services directly a new optional wireless connectivity for collocated regulatory organization. The from the Exchange. See Securities Exchange Act clients). Commission is publishing this notice to Release No. 76010 (September 29, 2015), 80 FR 7 A User would only receive the Third Party Data 60197 (October 5, 2015) (SR–NYSEArca–2015–82). for which it had entered into a contract. For As specified in the Fee Schedules, a User that example, a User that contracted with NASDAQ for 18 17 CFR 200.30–3(a)(12). incurs co-location fees for a particular co-location the NASDAQ Totalview-ITCH data feed but did not 1 15 U.S.C.78s(b)(1). service pursuant thereto would not be subject to co- contract to receive any other Third Party Data 2 15 U.S.C. 78a. location fees for the same co-location service would receive only the NASDAQ Totalview-ITCH 3 17 CFR 240.19b–4. charged by the Exchange’s affiliates New York data feed through its wireless connection.

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The Exchange proposes that the the five wireless connections it orders. additional ports available for a monthly wireless connections would include the If a User that has more than one wireless fee per port of $3,000. use of one port for connectivity to the connection wishes to use more than one The Exchange proposes to revise the Third Party Data. A User will only port to connect to the Third Party Data,8 Fee Schedules to reflect fees related to require one port to connect to the Third the Exchange proposes to make such these connections and ports, as follows: Party Data, irrespective of how many of

Description Amount of charge

Wireless connection of BATS Pitch BZX Gig shaped data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $6,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of DirectEdge EDGX Gig shaped data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $6,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of NASDAQ Totalview-ITCH data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $8,500. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of NASDAQ BX Totalview-ITCH data ...... $5,000 per connection initial charge plus monthly charge per connec- tion of $6,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Wireless connection of NASDAQ Totalview-ITCH and BX Totalview- $5,000 per connection initial charge plus monthly charge per connec- ITCH data. tion of $12,000. Fees are subject to a 30-day testing period, during which the monthly charge per connection is waived. Port for wireless connection ...... $3,000 monthly charge per port, excluding first port.

There is limited bandwidth available The wireless connection to the Third The proposed change is not otherwise on the wireless connection for data Party Data is expected to be available no intended to address any other issues feeds from third parties, and so the later than March 1, 2016. The Exchange relating to co-location services and/or Exchange has opted to offer only the will announce the date that the wireless related fees, and the Exchange is not Third Party Data, which are data feeds connection to the Third Party Data will aware of any problems that Users would that are in high demand from Users. The be available through a customer notice. have in complying with the proposed change. wireless network offered by the As is the case with all Exchange co- Exchange, although constrained by location arrangements, (i) neither a User 2. Statutory Basis bandwidth with respect to the number nor any of the User’s customers would of feeds it can carry, can be made be permitted to submit orders directly to The Exchange believes that the available to an unlimited number of the Exchange unless such User or proposed rule change is consistent with Section 6(b) of the Act,13 in general, and Users. customer is a member organization, a furthers the objectives of Sections The Exchange proposes to offer the Sponsored Participant or an agent 6(b)(5) of the Act,14 in particular, wireless connection to provide Users thereof (e.g., a service bureau providing because it is designed to prevent with an alternative means of order entry services); (ii) use of the co- fraudulent and manipulative acts and connectivity for Third Party Data. location services proposed herein would practices, to promote just and equitable Currently, Users can receive Third Party be completely voluntary and available principles of trade, to foster cooperation Data from wireless networks offered by to all Users on a non-discriminatory and coordination with persons engaged third party vendors.9 Users can also basis; 11 and (iii) a User would only in regulating, clearing, settling, receive Third Party Data through other incur one charge for the particular co- processing information with respect to, methods, including, for example, from location service described herein, and facilitating transactions in another User, through a regardless of whether the User connects securities, to remove impediments to, telecommunications provider, or over only to the Exchange or to the Exchange and perfect the mechanisms of, a free the internet protocol (‘‘IP’’) network.10 and one or both of its affiliates.12 and open market and a national market

8 For example, a User with two wireless (notice of filing and immediate effectiveness of that is not available to all Users, although Users that connections for Third Party Data may opt to proposed rule change to include IP network receive co-location services normally would expect purchase an additional port in order to route the connections). reduced latencies in sending orders to, and options and equity data it receives to different 11 As is currently the case, Users that receive co- receiving market data from, the Exchange. cabinets. location services from the Exchange will not receive 12 See SR–NYSEArca–2013–80, supra note 5 at 9 Currently, at least four third party vendors offer any means of access to the Exchange’s trading and 50459. The Exchange’s affiliates have also Users wireless network connections using wireless execution systems that is separate from, or superior submitted substantially the same proposed rule equipment installed on towers and buildings near to, that of other Users. In this regard, all orders sent change to propose the changes described herein. the data center. to the Exchange enter the Exchange’s trading and See SR–NYSE–2015–52 and SR–NYSEMKT–2015– 10 The IP network is a local area network available execution systems through the same order gateway, in the data center. See Securities Exchange Act regardless of whether the sender is co-located in the 85. Release No. 74219 (February 6, 2015), 80 FR 7899 data center or not. In addition, co-located Users do 13 15 U.S.C. 78f(b). (February 12, 2015) (SR–NYSEArca–2015–03) not receive any market data or data service product 14 15 U.S.C. 78f(b)(5).

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system and, in general, to protect than fiber optics-based solutions due to addition to the proposed services being investors and the public interest and the expense of the wireless equipment, completely voluntary, they are available because it is not designed to permit cost of installation and testing and to all Users on an equal basis (i.e. the unfair discrimination between ongoing maintenance of the network. same products and services are available customers, issuers, brokers, or dealers. The Exchange believes that the to all Users). The Exchange believes that the proposed pricing for the wireless The Exchange believes that allowing proposed services are not designed to connection for Third Party Data is Users to receive Third Party Data permit unfair discrimination between reasonable because it allows Users to through a wireless connection will not customers, issuers, brokers, or dealers select the Third Party Data connectivity impose any burden on competition that because the wireless connection for option and number of ports that better is not necessary or appropriate in Third Party Data would provide Users suit their needs. The fees also reflect the furtherance of the purposes of the Act with an alternative means of benefit received by Users in terms of because such access will satisfy User connectivity for Third Party Data. Users lower latency over the fiber optics demand for additional options for that do not opt to utilize the Exchange’s option. The Exchange believes that the connectivity for Third Party Data. proposed wireless connections would proposed waiver of the first month’s Currently, Users can receive Third Party still be able to obtain Third Party Data MRC is reasonable as it would allow Data from wireless networks offered by through other methods, including, for Users to test the receipt of the feed(s) for third party vendors. Based on the example, from wireless networks offered a month before incurring any monthly information available to it, the Exchange by third party vendors, another User, recurring fees and may act as an believes that its proposed wireless through a telecommunications provider, incentive to Users to utilize the new connection would provide data at the or over the IP network. Users that opt service. same or similar speed and at the same to use wireless connections for Third The Exchange believes that the or similar cost as the existing wireless Party Data would not receive Third proposed change is equitable and not networks. Accordingly, the proposed Party Data that is not available to all unfairly discriminatory because it will wireless connection for Third Party Data Users, as all market participants that result in fees being charged only to would provide Users with an additional contract with the relevant third party Users that voluntarily select to receive wireless connectivity option, thereby market for the Third Party Data may the corresponding services and because enhancing competition. receive it. those services will be available to all The Exchange notes that the proposed The Exchange believes that this Users. Furthermore, the Exchange wireless connection would compete not removes impediments to, and perfects believes that the services and fees just with other wireless connections, but the mechanisms of, a free and open proposed herein are not unfairly also with fiber optic networks, which market and a national market system discriminatory and are equitably may be more attractive to some Users as and, in general, protects investors and allocated because, in addition to the they are more reliable and less the public interest because it would services being completely voluntary, susceptible to weather conditions. Users provide Users with choices with respect they are available to all Users on an that do not opt to utilize wireless to the form and optimal latency of the equal basis (i.e., the same products and connections would be able to obtain connectivity they use to receive Third services are available to all Users). All Third Party Data through other methods, Party Data, allowing a User that opts to Users that voluntarily select wireless including, for example, from another receive Third Party Data to select the connections and ports would be charged User, through a telecommunications connectivity and number of ports that the same amount for the same services provider, or over the IP network. In this better suit its needs, helping it tailor its and would have their first month MRC way, the proposed changes would data center operations to the for wireless connections waived. enhance competition by helping Users requirements of its business operations. For the reasons above, the proposed tailor their connectivity for Third Party The Exchange also believes that the changes do not unfairly discriminate Data to the needs of their business proposed rule change is consistent with between or among market participants operations by allowing them to select Section 6(b)(4) of the Act,15 in that are otherwise capable of satisfying the form and optimal latency of the particular, because it provides for the any applicable co-location fees, connectivity they use to receive Third equitable allocation of reasonable dues, requirements, terms and conditions Party Data that best suits their needs, fees, and other charges among its established from time to time by the helping them tailor their data center member organizations, issuers and other Exchange. operations to the requirements of their persons using its facilities and does not Finally, the Exchange believes that it business operations. unfairly discriminate between is subject to significant competitive The proposed wireless connection to customers, issuers, brokers or dealers. forces, as described below in the the Third Party Data would traverse Overall, the Exchange believes that Exchange’s statement regarding the wireless connections through a series of the proposed change is reasonable burden on competition. towers equipped with wireless because the Exchange proposes to offer For these reasons, the Exchange equipment, including a pole on the wireless connection for Third Party Data believes that the proposal is consistent grounds of the data center. The described herein as a convenience to with the Act. proposed wireless network would have Users, but in doing so would incur exclusive rights to operate wireless certain costs, including costs related to B. Self-Regulatory Organization's equipment on the data center pole. The the data center facility, hardware and Statement on Burden on Competition Exchange will not sell rights to third equipment and costs related to In accordance with Section 6(b)(8) of parties to operate wireless equipment on personnel required for initial the Act,16 the Exchange believes that the the pole, due to space limitations, installation and monitoring, support proposed rule change will not impose security concerns, and the interference and maintenance of such services. The any burden on competition that is not that would arise between equipment costs associated with the wireless necessary or appropriate in furtherance placed too closely together. In addition connections are incrementally higher of the purposes of the Act because, in to space issues, there are contractual restrictions on the use of the roof that 15 15 U.S.C. 78f(b)(4). 16 15 U.S.C. 78f(b)(8). the Exchange has determined would not

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be met if it offered space on the roof for Comments may be submitted by any of SECURITIES AND EXCHANGE third party wireless equipment. the following methods: COMMISSION Moreover, access to the pole or roof is Electronic Comments not required for third parties to establish [Release No. 34–76375; File No. SR–BX– wireless networks that can compete • Use the Commission’s Internet 2015–64] with the Exchange’s proposed service, comment form (http://www.sec.gov/ Self-Regulatory Organizations; as witnessed by the existing wireless rules/sro.shtml); or networks currently serving Users. Based NASDAQ OMX BX, Inc.; Notice of Filing • on the information available to it, the Send an email to rule-comments@ and Immediate Effectiveness of Exchange believes that its proposed sec.gov. Please include File Number SR– Proposed Rule Change Related to wireless connection would provide data NYSEArca–2015–99 on the subject line. Price Improving and Post-Only Orders at the same or similar speed, and at the Paper Comments November 5, 2015. same or similar cost, as its proposed Pursuant to Section 19(b)(1) of the wireless connection, thereby enhancing • Send paper comments in triplicate Securities Exchange Act of 1934 competition.17 to Brent J. Fields, Secretary, Securities (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Finally, the Exchange notes that it and Exchange Commission, 100 F Street notice is hereby given that on October operates in a highly competitive market NE., Washington, DC 20549–1090. 30, 2015, NASDAQ OMX BX, Inc. (‘‘BX’’ in which market participants can or ‘‘Exchange’’) filed with the Securities readily favor competing venues if they All submissions should refer to File and Exchange Commission (‘‘SEC’’ or deem fee levels at a particular venue to Number SR±NYSEArca±2015±99. This ‘‘Commission’’) the proposed rule be excessive. In such an environment, file number should be included on the change as described in Items I and II the Exchange must continually review, subject line if email is used. To help the below, which Items have been prepared and consider adjusting, its services and Commission process and review your by the Exchange. The Commission is related fees and credits to remain comments more efficiently, please use publishing this notice to solicit competitive with other exchanges. For only one method. The Commission will comments on the proposed rule change the reasons described above, the post all comments on the Commission’s from interested persons. Exchange believes that the proposed Internet Web site (http://www.sec.gov/ rule change reflects this competitive rules/sro.shtml). Copies of the I. Self-Regulatory Organization’s environment. submission, all subsequent Statement of the Terms of the Substance amendments, all written statements of the Proposed Rule Change C. Self-Regulatory Organization's with respect to the proposed rule The Exchange proposes to remove a Statement on Comments on the change that are filed with the ‘‘Price Improving Order’’ and a ‘‘Post- Proposed Rule Change Received From Commission, and all written Only Order’’ as eligible order types for Members, Participants, or Others communications relating to the entry into the automated system for No written comments were solicited proposed rule change between the order execution and trade reporting or received with respect to the proposed Commission and any person, other than owned and operated by BX (‘‘System’’). rule change. those that may be withheld from the The Exchange requests that the public in accordance with the III. Date of Effectiveness of the Commission waive the 30-day operative provisions of 5 U.S.C. 552, will be Proposed Rule Change and Timing for delay period contained in Exchange Act available for Web site viewing and Commission Action Rule 19b–4(f)(6)(iii).3 printing in the Commission’s Public The text of the proposed rule change Within 45 days of the date of Reference Room, 100 F Street NE., publication of this notice in the Federal is available on the Exchange’s Web site Washington, DC 20549, on official at http:// Register or up to 90 days (i) as the business days between the hours of Commission may designate if it finds nasdaqomxbx.cchwallstreet.com/, at the 10:00 a.m. and 3:00 p.m. Copies of the principal office of the Exchange, and at such longer period to be appropriate filing also will be available for and publishes its reasons for so finding the Commission’s Public Reference inspection and copying at the principal Room. or (ii) as to which the self-regulatory office of the Exchange. All comments organization consents, the Commission received will be posted without change; II. Self-Regulatory Organization’s will: the Commission does not edit personal Statement of the Purpose of, and (A) By order approve or disapprove identifying information from Statutory Basis for, the Proposed Rule the proposed rule change, or submissions. You should submit only Change (B) institute proceedings to determine information that you wish to make whether the proposed rule change In its filing with the Commission, the available publicly. All submissions should be disapproved. Exchange included statements should refer to File Number SR– concerning the purpose of and basis for IV. Solicitation of Comments NYSEArca–2015–99 and should be the proposed rule change and discussed Interested persons are invited to submitted on or before December 3, any comments it received on the submit written data, views, and 2015. proposed rule change. The text of these arguments concerning the foregoing, For the Commission, by the Division of statements may be examined at the including whether the proposed rule Trading and Markets, pursuant to delegated places specified in Item IV below. The change is consistent with the Act. authority.18 Exchange has prepared summaries, set Robert W. Errett, forth in sections A, B, and C below, of 17 The Exchange notes that the distance of a the most significant aspects of such Deputy Secretary. wireless network provider’s wireless equipment statements. from the User is only one factor in determining [FR Doc. 2015–28684 Filed 11–10–15; 8:45 am] overall latency. Other factors include the number of BILLING CODE 8011–01–P repeaters in the route, the number of switches the 1 15 U.S.C. 78s(b)(1). data has to travel through, and the millimeter wave 2 17 CFR 240.19b–4. and switch technology used. 18 17 CFR 200.30–3(a)(12). 3 17 CFR 240.19b–4(f)(6)(iii).

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A. Self-Regulatory Organization's Orders are displayed in the System. The Exchange proposes to remove the Statement of the Purpose of, and Finally, the Exchange proposes to definition of a Post-Only Order from the Statutory Basis for, the Proposed Rule amend Chapter VII, Section 12, entitled list of order types that are acceptable on Change ‘‘Order Exposure Requirements’’ to BX in Chapter VI, Section I, entitled remove the reference to the exposure ‘‘Definitions.’’ The Exchange proposes 1. Purpose time for Price Improving Orders. to amend Chapter VI, Section 6, entitled The Exchange is seeking to remove Today, Price Improving Orders on BX ‘‘Acceptance of Quotes and Orders’’ to references to ‘‘Price Improving Orders’’ represent less than 1.5% of the BX remove Post-Only Orders as an in the Rulebook. Specifically, the volume. The Exchange is removing this acceptable order type. Finally, the Exchange is seeking to amend the order type in connection with its recent Exchange proposes to amend Chapter following sections of the Rulebook: filing of a price improving auction VI, Section 9, entitled ‘‘Price Chapter III, Section 4, entitled (PRISM).4 This proposed auction Improvement Auction (‘‘PRISM’’)’’ to ‘‘Prevention of the Misuse of Material mechanism will offer participants an remove an explanation on the manner in Nonpublic Information;’’ Chapter VI, alternative means of entering price which Post-Only Orders will interact in Section 1, entitled ‘‘Definitions,’’ improving interest. the auction process. Section 6, entitled ‘‘Acceptance of The Exchange believes that PRISM Today, the Exchange transacts a small Quotes and Orders’’ and Section 7, 5 should promote and foster competition number of Post-Only Orders on BX. entitled ‘‘Entry and Display of Orders;’’ and provide more options contracts The Exchange adopted the Post-Only and Chapter VII, Section 12, entitled with the opportunity for price Order to encourage displayed liquidity ‘‘Order Exposure Requirements.’’ and offer BX market participants greater The Exchange is also seeking to improvement. As a result of the increased opportunities for price flexibility to post liquidity on BX. remove references to ‘‘Post-Only Participants are not utilizing this order Orders’’ in the Rulebook. Specifically, improvement, the Exchange believes that participants will use PRISM to type very frequently. As previously the Exchange is seeking to amend the mentioned, the Exchange is removing following sections in the Rulebook: increase the number of Public Customer orders that are provided with the the Price-Improving Order in Chapter VI, Section 1, entitled connection with its recent filing of a opportunity to receive price ‘‘Definitions,’’ Section 6, entitled price improving auction (PRISM).6 This improvement over the NBBO. ‘‘Acceptance of Quotes and Orders’’ and proposed auction mechanism will offer Section 9 entitled ‘‘Price Improvement Post-Only Orders participants a new means of entering Auction (‘‘PRISM’’).’’ price improving interest. Aside from Post-Only Orders are orders that will Each order type will be explained in Price-Improving Orders, the Post-Only not remove liquidity from the System. more detail below. Order is the only other non-displayed Post-Only Orders are to be ranked and order type currently on BX. At this time, Price Improving Orders executed on the Exchange or cancelled, the Exchange proposes to also remove as appropriate, without routing away to Price Improving Orders are orders to the Post-Only Order from BX which another market. Post-Only Orders are buy or sell an option at a specified price would result in all remaining order evaluated at the time of entry with at an increment smaller than the types on BX being displayed similar to respect to locking or crossing other minimum price variation in the NASDAQ OMX PHLX LLC (‘‘Phlx’’) orders as follows: (i) If a Post-Only security. Today, Price Improving Orders order types. may be entered in increments as small Order would lock or cross an order on This proposed rule change would as one cent and are available for display the System, the order will be re-priced remove Price Improving Orders and at the minimum price variation to $.01 below the current low offer (for Post-Only Orders as acceptable order (‘‘MPV’’) in that security and shall be bids) or above the current best bid (for types for orders or quotes entered into rounded up for sell orders and rounded offers) and displayed by the System at BX’s System for all market participants. down for buy orders. Without this order one minimum price increment below type, market participants would not be the current low offer (for bids) or above 2. Statutory Basis able to submit orders or quotes priced the current best bid (for offers); and (ii) The Exchange believes that its between the MPV; those orders or if a Post-Only Order would not lock or proposal is consistent with Section 6(b) quotes would be rejected. cross an order on the System but would of the Act 7 in general, and furthers the The Exchange proposes to amend lock or cross the NBBO as reflected in objectives of Section 6(b)(5) of the Act 8 Chapter III, Section 4, entitled the protected quotation of another in particular, in that it is designed to ‘‘Prevention of the Misuse of Material market center, the order will be handled promote just and equitable principles of Nonpublic Information’’ to remove Price pursuant to Chapter VI, Section trade, to remove impediments to and Improving Orders as an example of an 7(b)(3)(C). Participants may choose to perfect the mechanism of a free and order type that would be violative of have their Post-Only Orders returned open market and a national market this rule. The Exchange proposes to whenever the order would lock or cross system, and, in general to protect remove the definition of a Price the NBBO or be placed on the book at investors and the public interest, by Improving Order from the list of order a price other than its limit price. Post- removing Price Improving and Post- types that are acceptable on BX in Only Orders received prior to the Only Orders as acceptable order types Chapter VI, Section I, entitled opening cross or after market close will for all market participants. be rejected. Post-Only Orders may not ‘‘Definitions.’’ The Exchange proposes Price-Improving Orders to amend Chapter VI, Section 6, entitled have a time-in-force designation of Good ‘‘Acceptance of Quotes and Orders’’ to Til Cancelled or Immediate or Cancel. With the removal of Price Improving remove Price Improving Orders as an Orders, market participants would not acceptable order type. The Exchange 4 See Securities Exchange Act Release No. 76301 5 proposes to amend Chapter VI, Section (October 29, 2015) (SR–BX–2015–032) (Order The Exchange transacted on 90 Post-Only Granting Accelerated Approval of a Proposed Rule Orders from July through September 2015. 7, entitled ‘‘Entry and Display of Change, as Modified by Amendment Nos. 1 and 2, 6 See note 4. Orders’’ to remove language describing to Adopt a New Price Improvement Auction, BX 7 15 U.S.C. 78f(b). the manner in which Price Improving PRISM) (not yet published) [sic]. 8 15 U.S.C. 78f(b)(5).

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be able to submit orders or quotes that despite the removal of the because the proposed rule change priced between the MPV; those orders availability and use of Post-Only Orders, would thereby remove Price Improving would be rejected. Other options the Exchange will remain competitive. Orders and Post-Only Orders as exchanges currently do not offer a Today, Post-Only Orders are not acceptable order types for orders enters similar order type.9 The Exchange displayed at their limit price, and into BX’s System for all market believes that the removal of the Price Participants are unable to ascertain the participants. Improving Order does not otherwise BX BBO with certainty. The removal of the Post-Only order type will result in C. Self-Regulatory Organization's create an impediment to a free and open Statement on Comments on the market. The Exchange believes this greater transparency. With the removal of both the Price-Improving order type Proposed Rule Change Received From proposed amendment is non- Members, Participants, or Others controversial. By not accepting Price and Post-Only order type, the remaining Improving Orders, BX’s true BBO will order types will be displayed. No written comments were either be transparent. All orders will be The Exchange’s removal of Price solicited or received. Improving and Post-Only Orders will disseminated at the prices and sizes III. Date of Effectiveness of the reduce the complexity surrounding the submitted by market participants at the Proposed Rule Change and Timing for 10 repricing of such non-displayed order time of entry into the System. The Commission Action Exchange believes that market types within the auction mechanism. Because the foregoing proposed rule participants will continue to quote at The Exchange’s proposal would result change does not: (i) Significantly affect their best prices and the market will be in all orders being displayed on BX and the protection of investors or the public more transparent. The Exchange believe the elimination of non-displayed order types. Notwithstanding the foregoing, interest; (ii) impose any significant that despite the removal of the burden on competition; and (iii) become availability and use of Price Improving the BBO shall be the Best Bid or Best Offer on BX. The BBO is repriced and operative for 30 days after the date of Orders, the Exchange will remain the filing, or such shorter time as the competitive. displayed in accordance with BX Rules at Chapter VI, Section 7(C). Commission may designate, it has Today, Price Improving Orders are not become effective pursuant to 19(b)(3)(A) displayed at their limit price, and B. Self-Regulatory Organization's of the Act 14 and Rule 19b–4(f)(6) 15 Participants are unable to ascertain the Statement on Burden on Competition thereunder. BX BBO with certainty. The removal of The Exchange does not believe that A proposed rule change filed the Price Improving order type will the proposed rule change will impose pursuant to Rule 19b–4(f)(6) under the result in greater transparency. In any burden on competition not Act 16 normally does not become addition, BX recently received approval necessary or appropriate in furtherance operative for 30 days after the date of its for a new auction mechanism, PRISM, of the purposes of the Act. The filing. However, Rule 19b–4(f)(6)(iii) 17 which offers Participants an alternative Exchange does not believe that the permits the Commission to designate a means of entering price improving proposal to remove Price Improving shorter time if such action is consistent 11 interest. Orders as an acceptable Order type with the protection of investors and the Post-Only Orders creates an undue burden on inter- public interest. The Exchange has asked market competition because despite the the Commission to waive the 30-day With the removal of Post-Only Orders, removal of Price Improving Orders, BX operative delay so that the filing can be market participants would not be able to will remain competitive. By not operative prior to the implementation of submit orders or quotes priced between accepting Price Improving Orders, BX’s BX PRISM. The Exchange states that it the MPV; those orders would be true BBO will be more transparent. intends to launch the newly approved rejected. Other options exchanges Orders will be disseminated at the BX PRISM auction without the ability to currently do not offer a similar order prices and sizes submitted by market enter either of these order types. The type.12 The Exchange believes that the participants at the time of entry into the Exchange further states that BX PRISM removal of the Post-Only Order does not System. Market participants would not will benefit from the transparency of the otherwise create an impediment to a be able to submit orders or quotes orders entered into the auction. The free and open market. The Exchange priced between the MPV. Exchange also states that the removal of believes this proposed amendment is The Exchange does not believe that Post-Only Orders and Price-Improving non-controversial. By not accepting the proposal to remove Post-Only Orders will reduce complexity Post-Only Orders, BX’s true BBO will be Orders as an acceptable order type surrounding the repricing of such non- transparent. All orders will be creates an undue burden on inter- displayed order types within BX PRISM. disseminated at the prices and sizes market competition because despite the The Commission believes that waiver of submitted by market participants at the removal of Post-Only Orders, BX will the 30-day operative delay is 13 time of entry into the System. The remain competitive. Similarly, by not appropriate so that Post-Only Order and Exchange believes that market accepting Post-Only Orders, BX’s true Price-Improving Orders may be removed participants will continue to quote at BBO will be more transparent. Orders as order types on the Exchange prior to their best prices and the market will be will be disseminated at the prices and the implementation of BX PRISM. Based more transparent. The Exchange believe sizes submitted by market participants on the foregoing, the Commission

9 at the time of entry into the System. See Phlx and BOX Options Exchange LLC, Market participants would not be able to 14 15 U.S.C. 78s(b)(3)(A). which do not have a similar type of price improving 15 17 CFR 240.19b–4(f)(6). As required under Rule order. submit orders or quotes priced between 19b–4(f)(6)(iii), the Exchange provided the 10 If this results in a price which locks or crosses the MPV with the removal of this order Commission with written notice of its intent to file an away market, then it will be repriced in type. the proposed rule change, along with a brief accordance with BX Rules at Chapter VI, Section The Exchange does not believe that description and the text of the proposed rule 7(C). change, at least five business days prior to the date 11 See note 4. the proposal to remove Price Improving of filing of the proposed rule change, or such 12 See Phlx and BOX Options Exchange LLC, Orders and Post-Only Orders as shorter time as designated by the Commission. which do not have a similar type of post-only order. acceptable order types creates an undue 16 17 CFR 240.19b–4(f)(6). 13 See note 10. burden on intra-market competition 17 17 CFR 240.19b–4(f)(6)(iii).

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believes that the waiver of the operative printing in the Commission’s Public Use of Up to 0.3500 mgd; Approval delay is consistent with the protection Reference Room, 100 F Street NE., Date: September 11, 2015. of investors and the public interest.18 Washington, DC 20549 on official Approvals By Rule Issued Under 18 The Commission hereby grants the business days between the hours of CFR 806.22(f) waiver and designates the proposal 10:00 a.m. and 3:00 p.m. Copies of such operative upon filing. filing also will be available for 1. Anadarko E&P Onshore, LLC, Pad ID: At any time within 60 days of the inspection and copying at the principal Don J Davis Pad A, ABR– filing of the proposed rule change, the office of the Exchange. All comments 201008028.R1, Gamble Township, Commission summarily may received will be posted without change; Lycoming County, Pa.; temporarily suspend such rule change if the Commission does not edit personal Consumptive Use of Up to 3.0000 it appears to the Commission that such identifying information from mgd; Approval Date: September 3, action is necessary or appropriate in the submissions. You should submit only 2015. public interest, for the protection of information that you wish to make 2. Chesapeake Appalachia, LLC, Pad ID: investors, or otherwise in furtherance of available publicly. All submissions Decker Farms, ABR–201009037.R1, the purposes of the Act. If the should refer to File No. SR–BX–2015– Rush Township, Susquehanna Commission takes such action, the 64, and should be submitted on or County, Pa.; Consumptive Use of Commission shall institute proceedings before December 3, 2015. Up to 7.5000 mgd; Approval Date: to determine whether the proposed rule September 3, 2015. should be approved or disapproved. For the Commission, by the Division of 3. Chesapeake Appalachia, LLC, Pad ID: Trading and Markets, pursuant to delegated Rocks, ABR–201101003.R1, IV. Solicitation of Comments authority.19 Overton Township, Bradford Robert W. Errett, Interested persons are invited to County, Pa.; Consumptive Use of submit written data, views, and Deputy Secretary. Up to 7.5000 mgd; Approval Date: arguments concerning the foregoing, [FR Doc. 2015–28692 Filed 11–10–15; 8:45 am] September 3, 2015. including whether the proposed rule BILLING CODE 8011–01–P 4. Chesapeake Appalachia, LLC, Pad ID: change is consistent with the Act. Aukema, ABR–201101013.R1, Comments may be submitted by any of Meshoppen Township, Wyoming the following methods: SUSQUEHANNA RIVER BASIN County, Pa.; Consumptive Use of Electronic Comments COMMISSION Up to 7.5000 mgd; Approval Date: September 3, 2015. • Use the Commission’s Internet Projects Approved for Consumptive 5. Chesapeake Appalachia, LLC, Pad ID: comment form (http://www.sec.gov/ Fausto, ABR–201101015.R1, rules/sro.shtml); or Uses of Water • Litchfield Township, Bradford Send an email to rule-comments@ AGENCY: Susquehanna River Basin County, Pa.; Consumptive Use of sec.gov. Please include File No. SR–BX– Commission. Up to 7.5000 mgd; Approval Date: 2015–64 on the subject line. ACTION: Notice. September 3, 2015. Paper Comments 6. Chesapeake Appalachia, LLC, Pad ID: SUMMARY: This notice lists the projects Bo, ABR–201101016.R1, Tuscarora • Send paper comments in triplicate approved by rule by the Susquehanna Township, Bradford County, Pa.; to Secretary, Securities and Exchange River Basin Commission during the Consumptive Use of Up to 7.5000 Commission, 100 F Street NE., period set forth in DATES. Washington, DC 20549–1090. mgd; Approval Date: September 3, DATES: September 1–30, 2015. 2015. All submissions should refer to File No. ADDRESSES: Susquehanna River Basin 7. Chesapeake Appalachia, LLC, Pad ID: SR–BX–2015–64. This file number Struble, ABR–201101017.R1, should be included on the subject line Commission, 4423 North Front Street, Harrisburg, PA 17110–1788. Litchfield Township, Bradford if email is used. To help the County, Pa.; Consumptive Use of FOR FURTHER INFORMATION CONTACT: Commission process and review your Up to 7.5000 mgd; Approval Date: comments more efficiently, please use Jason E. Oyler, General Counsel, September 3, 2015. only one method. The Commission will telephone: (717) 238–0423, ext. 1312; 8. Chesapeake Appalachia, LLC, Pad ID: post all comments on the Commission’s fax: (717) 238–2436; email: joyler@ DJ, ABR–201101021.R1, Wysox Internet Web site (http://www.sec.gov/ srbc.net. Regular mail inquiries may be Township, Bradford County, Pa.; rules/sro.shtml). Copies of the sent to the above address. Consumptive Use of Up to 7.5000 submission, all subsequent SUPPLEMENTARY INFORMATION: This mgd; Approval Date: September 3, amendments, all written statements notice lists the projects, described 2015. with respect to the proposed rule below, receiving approval for the 9. Chief Oil & Gas, LLC, Pad ID: change that are filed with the consumptive use of water pursuant to Dacheux Drilling Pad #1, ABR– Commission, and all written the Commission’s approval by rule 201101014.R1, Cherry Township, communications relating to the process set forth in 18 CFR 806.22(e) Sullivan County, Pa.; Consumptive proposed rule change between the and (f) for the time period specified Use of Up to 2.0000 mgd; Approval Commission and any person, other than above: Date: September 3, 2015. those that may be withheld from the 10. Chief Oil & Gas, LLC, Pad ID: public in accordance with the Approvals By Rule Issued Under 18 CFR 806.22(e) Andrus Drilling Pad #1, ABR– provisions of 5 U.S.C. 552, will be 201101023.R1, Granville Township, available for Web site viewing and 1. Downs Racing, LP dba Mohegan Sun Bradford County, Pa.; Consumptive Pocono, Mohegan Sun Pocono, Use of Up to 2.0000 mgd; Approval 18 For purposes only of waiving the 30-day ABR–201509001, Plains Township, Date: September 3, 2015. operative delay, the Commission has also Luzerne County, Pa.; Consumptive considered the proposed rule’s impact on 11. EOG Resources, Inc., Pad ID: efficiency, competition, and capital formation. See KINGSLEY 2H, ABR–20100692.R1, 15 U.S.C. 78c(f). 19 17 CFR 200.30–3(a)(12). Springfield Township, Bradford

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County, Pa.; Consumptive Use of 23. SWEPI LP, Pad ID: Thomas 503, Up to 2.0000 mgd; Approval Date: Up to 4.9990 mgd; Approval Date: ABR–201007050.R1, Sullivan and September 8, 2015. September 3, 2015. Rutland Townships, Tioga County, 34. Chesapeake Appalachia, LLC, Pad 12. EOG Resources, Inc., Pad ID: Pa.; Consumptive Use of Up to ID: Wasyl, ABR–201101002.R1, KINGSLEY 3H, ABR–20100698.R1, 4.0000 mgd; Approval Date: Ulster Township, Bradford County, Springfield Township, Bradford September 3, 2015. Pa.; Consumptive Use of Up to County, Pa.; Consumptive Use of 24. SWEPI LP, Pad ID: Swingle 725, 7.5000 mgd; Approval Date: Up to 4.9990 mgd; Approval Date: ABR–201007129.R1, Canton September 8, 2015. September 3, 2015. Township, Bradford County, Pa.; 35. Chesapeake Appalachia, LLC, Pad 13. EXCO Resources (PA), LLC, Pad ID: Consumptive Use of Up to 4.0000 ID: Beech Flats, ABR– Kensinger Unit Drilling Pad #1, mgd; Approval Date: September 3, 201101012.R1, West Branch and ABR–20090922.R1, Penn 2015. Pike Townships, Potter County, Pa.; Township, Lycoming County, Pa.; 25. Anadarko E&P Onshore, LLC, Pad Consumptive Use of Up to 7.5000 Consumptive Use of Up to 5.0000 ID: Jack L Hipple Pad A, ABR– mgd; Approval Date: September 8, mgd; Approval Date: September 3, 201008021.R1, Gamble Township, 2015. 2015. Lycoming County, Pa.; 36. Chesapeake Appalachia, LLC, Pad 14. Seneca Resources Corporation, Pad Consumptive Use of Up to 3.0000 ID: Bustin Homestead, ABR– ID: DCNR Tract 001 1H, ABR– mgd; Approval Date: September 8, 201101025.R1, Sheshequin 201008142.R1, Sweden Township, 2015. Township, Bradford County, Pa.; Potter County, Pa.; Consumptive 26. Anadarko E&P Onshore, LLC, Pad Consumptive Use of Up to 7.5000 Use of Up to 4.0000 mgd; Approval ID: Thomas E Smith Pad A, ABR– mgd; Approval Date: September 8, Date: September 3, 2015. 201008057.R1, Gamble Township, 2015. 15. SWN Production Company LLC, Pad Lycoming County, Pa.; 37. Chesapeake Appalachia, LLC, Pad ID: Loomis Well No. 2H, ABR– Consumptive Use of Up to 3.0000 ID: Beeman, ABR–201101028.R1, 20100504.R1, Rush Township, mgd; Approval Date: September 8, Litchfield Township, Bradford Susquehanna County, Pa.; 2015. County, Pa.; Consumptive Use of Consumptive Use of Up to 4.0000 27. Anadarko E&P Onshore, LLC, Pad Up to 7.5000 mgd; Approval Date: mgd; Approval Date: September 3, ID: George E Hagemeyer Pad A, September 8, 2015. 2015. ABR–201008077.R1, Gamble 38. SWEPI LP, Pad ID: Sorensen 876, 16. SWEPI LP, Pad ID: Synnestvedt 878, Township, Lycoming County, Pa.; ABR–201007021.R1, Osceola ABR–201007009.R1, Osceola Consumptive Use of Up to 3.0000 Township, Tioga County, Pa.; Township, Tioga County, Pa.; mgd; Approval Date: September 8, Consumptive Use of Up to 4.0000 Consumptive Use of Up to 4.0000 2015. mgd; Approval Date: September 8, mgd; Approval Date: September 3, 28. Anadarko E&P Onshore, LLC, Pad 2015. 2015. ID: Nevin L Smith Pad A, ABR– 39. SWEPI LP, Pad ID: Westerbaan 723, 17. SWEPI LP, Pad ID: Matz 824, ABR– 201008115.R1, Gamble Township, ABR–201007038.R1, Union 201007010.R1, Chatham Township, Lycoming County, Pa.; Township, Tioga County, Pa.; Tioga County, Pa.; Consumptive Consumptive Use of Up to 3.0000 Consumptive Use of Up to 4.0000 Use of Up to 4.0000 mgd; Approval mgd; Approval Date: September 8, mgd; Approval Date: September 8, Date: September 3, 2015. 2015. 2015. 18. SWEPI LP, Pad ID: Cochran 705, 29. Anadarko E&P Onshore, LLC, Pad 40. SWEPI LP, Pad ID: State 822, ABR– ABR–201007012.R1, Union ID: Kenneth T Schriner Pad A, 201007040.R1, Gaines Township, Township, Tioga County, Pa.; ABR–201009107.R1, Gamble Tioga County, Pa.; Consumptive Consumptive Use of Up to 4.0000 Township, Lycoming County, Pa.; Use of Up to 4.9900 mgd; Approval mgd; Approval Date: September 3, Consumptive Use of Up to 3.0000 Date: September 8, 2015. 2015. mgd; Approval Date: September 8, 41. SWEPI LP, Pad ID: Taft 851, ABR– 19. SWEPI LP, Pad ID: Frost 573, ABR– 2015. 201007047.R1, Middlebury 201007013.R1, Covington 30. Carrizo (Marcellus), LLC, Pad ID: Township, Tioga County, Pa.; Township, Tioga County, Pa.; Shaskas South, ABR–201011022.R1, Consumptive Use of Up to 4.0000 Consumptive Use of Up to 4.0000 Jessup Township, Susquehanna mgd; Approval Date: September 8, mgd; Approval Date: September 3, County, Pa.; Consumptive Use of 2015. 2015. Up to 2.1000 mgd; Approval Date: 42. SWEPI LP, Pad ID: Baldwin 881, 20. SWEPI LP, Pad ID: Murdock 862, September 8, 2015. ABR–201007068.R1, Farmington ABR–201007015.R1, Deerfield 31. Carrizo (Marcellus), LLC, Pad ID: Township, Tioga County, Pa.; Township, Tioga County, Pa.; Bonnice 2, ABR–201011023.R1, Consumptive Use of Up to 4.0000 Consumptive Use of Up to 4.0000 Jessup Township, Susquehanna mgd; Approval Date: September 8, mgd; Approval Date: September 3, County, Pa.; Consumptive Use of 2015. 2015. Up to 2.1000 mgd; Approval Date: 43. Tenaska Resources, LLC, Pad ID: 21. SWEPI LP, Pad ID: Taylor 718, ABR– September 8, 2015. Sylvester 1H, ABR–20100155.R1, 201007016.R1, Liberty Township, 32. Chesapeake Appalachia, LLC, Pad Brookfield Township, Tioga Tioga County, Pa.; Consumptive ID: Gerbino #1, ABR–20090710.R1, County, Pa.; Consumptive Use of Use of Up to 4.0000 mgd; Approval Ridgebury Township, Bradford Up to 1.0000 mgd; Approval Date: Date: September 3, 2015. County, Pa.; Consumptive Use of September 8, 2015. 22. SWEPI LP, Pad ID: Wesneski 724, Up to 2.0000 mgd; Approval Date: 44. Tenaska Resources, LLC, Pad ID: ABR–201007017.R1, Union September 8, 2015. NorthFork 1H, ABR–20100158.R1, Township, Tioga County, Pa.; 33. Chesapeake Appalachia, LLC, Pad Brookfield Township, Tioga Consumptive Use of Up to 4.0000 ID: Warren #1, ABR–20090711.R1, County, Pa.; Consumptive Use of mgd; Approval Date: September 3, Ridgebury Township, Bradford Up to 1.0000 mgd; Approval Date: 2015. County, Pa.; Consumptive Use of September 8, 2015.

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45. Tenaska Resources, LLC, Pad ID: Susquehanna County, Pa.; 67. Anadarko E&P Onshore, LLC, Pad Austinburg 1H, ABR–20100313.R1, Consumptive Use of Up to 0.7000 ID: Plants Evergreen Farm Pad A, Brookfield Township, Tioga mgd; Approval Date: September 17, ABR–201009003.R1, Cascade County, Pa.; Consumptive Use of 2015. Township, Lycoming County, Pa.; Up to 1.0000 mgd; Approval Date: 57. Cabot Oil & Gas Corporation, Pad ID: Consumptive Use of Up to 3.0000 September 8, 2015. Costello P1, ABR–20080707.R1, mgd; Approval Date: September 28, 46. EOG Resources, Inc., Pad ID: Olsyn Dimock Township, Susquehanna 2015. 1H, ABR–201509004, Springfield County, Pa.; Consumptive Use of 68. Anadarko E&P Onshore, LLC, Pad Township, Bradford County, Pa.; Up to 0.9000 mgd; Approval Date: ID: COP Tr 685 Pad C, ABR– Consumptive Use of Up to 5.0000 September 17, 2015. 201009013.R1, Cummings mgd; Approval Date: September 17, 58. Cabot Oil & Gas Corporation, Pad ID: Township, Lycoming County, Pa.; 2015. Black P1, ABR–20080708.R1, Consumptive Use of Up to 3.0000 47. EOG Resources, Inc., Pad ID: Pichler Springville Township, mgd; Approval Date: September 28, 1H, ABR–201509003, Jay Susquehanna County, Pa.; 2015. Township, Elk County, Pa.; Consumptive Use of Up to 3.5000 69. Anadarko E&P Onshore, LLC, Pad Consumptive Use of Up to 5.0000 mgd; Approval Date: September 17, ID: COP Tr 290 Pad A, ABR– mgd; Approval Date: September 17, 2015. 201009043.R1, McHenry Township, 2015. 59. Cabot Oil & Gas Corporation, Pad ID: Lycoming County, Pa.; 48. EOG Resources, Inc., Pad ID: PHC Ely P3, ABR–20080709.R1, Dimock Consumptive Use of Up to 4.0000 2H, ABR–201509002, Lawrence Township, Susquehanna County, mgd; Approval Date: September 28, Township, Clearfield County, Pa.; Pa.; Consumptive Use of Up to 2015. Consumptive Use of Up to 5.0000 3.5000 mgd; Approval Date: 70. Anadarko E&P Onshore, LLC, Pad mgd; Approval Date: September 17, September 17, 2015. ID: COP Tr 289 Pad E, ABR– 2015. 60. Cabot Oil & Gas Corporation, Pad ID: 201009048.R1, McHenry Township, 49. SWEPI LP, Pad ID: Maneval 296, Ely P2, ABR–20080722.R1, Dimock Lycoming County, Pa.; ABR–201007056.R1, Delmar Township, Susquehanna County, Consumptive Use of Up to 3.0000 Township, Tioga County, Pa.; Pa.; Consumptive Use of Up to mgd; Approval Date: September 28, Consumptive Use of Up to 4.0000 0.9000 mgd; Approval Date: 2015. mgd; Approval Date: September 17, September 17, 2015. 71. Anadarko E&P Onshore, LLC, Pad 2015. 61. Cabot Oil & Gas Corporation, Pad ID: ID: COP Tr 731 Pad A, ABR– 50. SWEPI LP, Pad ID: Reese 289, ABR– Lewis P2, ABR–20080802.R1, 201009057.R1, Cummings 201007057.R1, Charleston Dimock Township, Susquehanna Township, Lycoming County, Pa.; Township, Tioga County, Pa.; County, Pa.; Consumptive Use of Consumptive Use of Up to 3.0000 Consumptive Use of Up to 4.0000 Up to 0.9000 mgd; Approval Date: mgd; Approval Date: September 28, mgd; Approval Date: September 17, September 17, 2015. 2015. 2015. 72. Anadarko E&P Onshore, LLC, Pad 62. Cabot Oil & Gas Corporation, Pad ID: 51. SWEPI LP, Pad ID: Harsell 883, ID: Gayla D Loch Pad A, ABR– Lewis P1, ABR–20080803.R1, ABR–201007066.R1, Nelson 201009083.R1, Cogan House Dimock Township, Susquehanna Township, Tioga County, Pa.; Township, Lycoming County, Pa.; County, Pa.; Consumptive Use of Consumptive Use of Up to 4.0000 Consumptive Use of Up to 3.0000 Up to 0.9000 mgd; Approval Date: mgd; Approval Date: September 17, mgd; Approval Date: September 28, September 17, 2015. 2015. 2015. 52. SWEPI LP, Pad ID: Wood 874, ABR– 63. Cabot Oil & Gas Corporation, Pad ID: 73. Chesapeake Appalachia, LLC, Pad 201007069.R1, Deerfield Township, Costello P2, ABR–20080804.R1, ID: Meng, ABR–201101005.R1, Tioga County, Pa.; Consumptive Dimock Township, Susquehanna Albany Township, Bradford Use of Up to 4.0000 mgd; Approval County, Pa.; Consumptive Use of County, Pa.; Consumptive Use of Date: September 17, 2015. Up to 0.9000 mgd; Approval Date: Up to 7.5000 mgd; Approval Date: 53. SWEPI LP, Pad ID: Sawyer 376, September 17, 2015. September 28, 2015. ABR–201007061.R1, Union 64. Anadarko E&P Onshore, LLC, Pad 74. Chesapeake Appalachia, LLC, Pad Township, Tioga County, Pa.; ID: Wallis Run HC Pad A, ABR– ID: VRGC, ABR–201101022.R1, Consumptive Use of Up to 4.0000 201008078.R1, Cascade Township, Wilmot Township, Bradford mgd; Approval Date: September 17, Lycoming County, Pa.; County, Pa.; Consumptive Use of 2015. Consumptive Use of Up to 3.0000 Up to 7.5000 mgd; Approval Date: 54. SWEPI LP, Pad ID: Cleveland 616, mgd; Approval Date: September 28, September 28, 2015. ABR–201007089.R1, Delmar 2015. 75. Chesapeake Appalachia, LLC, Pad Township, Tioga County, Pa.; 65. Anadarko E&P Onshore, LLC, Pad ID: Walker, ABR–201101030.R1, Consumptive Use of Up to 4.0000 ID: Michael R Fulkerson Pad A, Wilmot Township, Bradford mgd; Approval Date: September 17, ABR–201008116.R1, Cogan House County, Pa.; Consumptive Use of 2015. Township, Lycoming County, Pa.; Up to 7.5000 mgd; Approval Date: 55. Cabot Oil & Gas Corporation, Pad ID: Consumptive Use of Up to 3.0000 September 28, 2015. Teel P4, ABR–20080701.R1, mgd; Approval Date: September 28, 76. SWEPI LP, Pad ID: Gee 848V, ABR– Springville Township, 2015. 201007093.R1, Middlebury Susquehanna County, Pa.; 66. Anadarko E&P Onshore, LLC, Pad Township, Tioga County, Pa.; Consumptive Use of Up to 0.7000 ID: Frank L Hartley Pad A, ABR– Consumptive Use of Up to 4.0000 mgd; Approval Date: September 17, 201008144.R1, Cogan House mgd; Approval Date: September 28, 2015. Township, Lycoming County, Pa.; 2015. 56. Cabot Oil & Gas Corporation, Pad ID: Consumptive Use of Up to 3.0000 77. Talisman Energy USA Inc., Pad ID: Teel P3, ABR–20080702.R1, mgd; Approval Date: September 28, 02 100 Detweiler R, ABR– Springville Township, 2015. 201008023.R1, Covington

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Township, Tioga County, Pa.; protection of FAR Part 77 surfaces and Issued in Atlanta, Georgia on November 5, Consumptive Use of Up to 6.0000 compatible land use which would 2015. mgd; Approval Date: September 29, continue to be protected with deed Larry F. Clark, 2015. restrictions required in the transfer of Manager, Atlanta Airports District Office 78. Talisman Energy USA Inc., Pad ID: land ownership. Southern Region. 02 203 DCNR 594, ABR– [FR Doc. 2015–28786 Filed 11–10–15; 8:45 am] DATES: Comments must be received on 201008042.R1, Liberty Township, BILLING CODE 4910–13–P Tioga County, Pa.; Consumptive or before December 14, 2015. Use of Up to 6.0000 mgd; Approval ADDRESSES: Documents are available for Date: September 29, 2015. review by prior appointment at the DEPARTMENT OF TRANSPORTATION 79. Talisman Energy USA Inc., Pad ID: following location: Atlanta Airports Carpenter 03 023, ABR– Federal Motor Carrier Safety District Office, Attn: Rob Rau, South Administration 201008141.R1, Columbia Carolina Planner, 1701 Columbia Ave., Township, Bradford County, Pa.; Suite 220, College Park, Georgia 30337– [Docket No. FMCSA–2015–0072] Consumptive Use of Up to 6.0000 2747, Telephone: (404) 305–6748. mgd; Approval Date: September 29, Qualification of Drivers; Exemption 2015. Comments on this notice may be Applications; Vision 80. Talisman Energy USA Inc., Pad ID: mailed or delivered in triplicate to the AGENCY: Federal Motor Carrier Safety DCNR 587 02 003, ABR– FAA at the following address: Atlanta Administration (FMCSA), DOT. 201008069.R1, Ward Township, Airports District Office, Attn: Rob Rau, Tioga County, Pa.; Consumptive South Carolina Planner, 1701 Columbia ACTION: Notice of applications for Use of Up to 6.0000 mgd; Approval Ave., Suite 220, College Park, Georgia exemptions; request for comments. Date: September 29, 2015. 30337–2747. SUMMARY: FMCSA announces receipt of 81. Talisman Energy USA Inc., Pad ID: In addition, one copy of any applications from 40 individuals for DCNR 587 02 019, ABR– comments submitted to the FAA must exemption from the vision requirement 201008072.R1, Ward Township, be mailed or delivered to Dan Mann, in the Federal Motor Carrier Safety Tioga County, Pa.; Consumptive A.A.E., Executive Director, Richland- Regulations. They are unable to meet Use of Up to 6.0000 mgd; Approval Lexington Airport District at the the vision requirement in one eye for Date: September 29, 2015. various reasons. The exemptions will 82. Talisman Energy USA Inc., Pad ID: following address: Columbia Metropolitan Airport, 125 A Summer enable these individuals to operate Roy 03 062, ABR–201008089.R1, commercial motor vehicles (CMVs) in Wells Township, Bradford County, Lake Drive, West Columbia, South Carolina 29170. interstate commerce without meeting Pa.; Consumptive Use of Up to the prescribed vision requirement in 6.0000 mgd; Approval Date: FOR FURTHER INFORMATION CONTACT: Rob one eye. If granted, the exemptions September 29, 2015. Rau, South Carolina Planner, Atlanta would enable these individuals to Authority: Pub. L. 91–575, 84 Stat. 1509 Airports District Office, 1701 Columbia qualify as drivers of commercial motor et seq., 18 CFR parts 806, 807, and 808. Ave., Suite 220, College Park, Georgia vehicles (CMVs) in interstate commerce. Dated: November 6, 2015. 30337–2747, (404) 305–6748. The DATES: Comments must be received on Stephanie L. Richardson application may be reviewed in person or before December 14, 2015. All Secretary to the Commission. at this same location. comments will be investigated by FMCSA. The exemptions will be issued [FR Doc. 2015–28726 Filed 11–10–15; 8:45 am] SUPPLEMENTARY INFORMATION: The FAA the day after the comment period closes. BILLING CODE 7040–01–P is reviewing a request by the Richland- ADDRESSES: You may submit comments Lexington Airport District to release bearing the Federal Docket Management 51.5 of surplus property at the Columbia System (FDMS) Docket No. FMCSA– DEPARTMENT OF TRANSPORTATION Metropolitan Airport. This singular 2015–0072 using any of the following parcel was originally conveyed to the Federal Aviation Administration methods: County of Lexington on April 7, 1947 • Federal eRulemaking Portal: Go to Notice of Opportunity for Public under the powers and authority http://www.regulations.gov. Follow the Comment on Surplus Property Release contained in the provisions of the on-line instructions for submitting at Columbia Metropolitan Airport, Surplus Property Act of 1944 and comments. Columbia, South Carolina. subsequently transferred to the • Mail: Docket Management Facility; Richland-Lextington Airport District on U.S. Department of Transportation, 1200 AGENCY: Federal Aviation July 12, 1962. Currently, this surplus New Jersey Avenue SE., West Building Administration (FAA), DOT. property is located within the Columbia Ground Floor, Room W12–140, ACTION: Notice. Metropolitan Airport Foreign Trade Washington, DC 20590–0001. • Zone #124. Hand Delivery: West Building SUMMARY: Under the provisions of Title Ground Floor, Room W12–140, 1200 Any person may inspect the request 49, U.S.C. Section 47151(d), notice is New Jersey Avenue SE., Washington, being given that the Federal Aviation in person at the FAA office listed above DC, between 9 a.m. and 5 p.m., Monday Administration (FAA) is considering a under FOR FURTHER INFORMATION through Friday, except Federal request from the Richland-Lexington CONTACT. Holidays. Airport District to waive the In addition, any person may, upon • Fax: 1–202–493–2251. requirement that 51.5 acres of surplus request, inspect the request, notice and Instructions: Each submission must property, located at the Columbia other documents germane to the request include the Agency name and the Metropolitan Airport be used for in person at the Columbia Metropolitan docket numbers for this notice. Note aeronautical purposes. Currently, Airport. that all comments received will be ownership of the property provides for posted without change to http://

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www.regulations.gov, including any II. Qualifications of Applicants acuity in his right eye is no light personal information provided. Please perception, and in his left eye, 20/15. W. Adams see the Privacy Act heading below for Following an examination in 2014, his further information. Mr. Adams, 57, has had a prosthetic ophthalmologist stated, ‘‘Mr. Barrows Docket: For access to the docket to left eye since childhood. The visual only has a left eye and has been read background documents or acuity in his right eye is 20/20, and in monocular since 1961. In my opinion, comments, go to http:// his left eye, no light perception. he is safe to continue operating a www.regulations.gov at any time or Following an examination in 2015, his commercial vehicle.’’ Mr. Barrows Room W12–140 on the ground level of optometrist stated, ‘‘If commercial reported that he has driven straight the West Building, 1200 New Jersey drivers are allowed to drive trucks for 30 years, accumulating 97,500 Avenue SE., Washington, DC, between 9 monocularly. His right has adequate miles, and tractor-trailer combinations a.m. and 5 p.m., Monday through acuity/color/side vision as any 60 year for 1.5 years, accumulating 30,000 Friday, except Federal holidays. The old eye is expected as normal for age miles. He holds a Class A Commercial FDMS is available 24 hours each day, group.’’ Mr. Adams reported that he has Driver’s License (CDL) from Oregon. His 365 days each year. If you want driven straight trucks for 9 years, driving record for the last 3 years shows acknowledgment that we received your accumulating 144,000 miles, tractor- no crashes and no convictions for comments, please include a self- trailer combinations for 13 years, moving violations in a CMV. accumulating 1.69 million miles, and addressed, stamped envelope or Steven A. Blinco postcard or print the acknowledgement buses for 1 year, accumulating 5,000 miles. He holds an operator’s license Mr. Blinco, 60, has complete loss of page that appears after submitting vision in his right eye due to a traumatic comments on-line. from Tennessee. His driving record for the last 3 years shows no crashes and no incident in 1985. The visual acuity in Privacy Act: In accordance with 5 convictions for moving violations in a his right eye is no light perception, and U.S.C. 553(c), DOT solicits comments CMV. in his left eye, 20/20. Following an from the public to better inform its examination in 2015, his optometrist rulemaking process. DOT posts these David R. Alford stated, ‘‘The patient has sufficient vision comments, without edit, including any Mr. Alford, 52, has had amblyopia in to perform the driving tasks required to personal information the commenter his right eye since childhood. The operate commercial vehicle.’’ Mr. Blinco provides, to www.regulations.gov, as visual acuity in his right eye is 20/80, reported that he has driven straight described in the system of records and in his left eye, 20/20. Following an trucks for 40 years, accumulating notice (DOT/ALL–14 FDMS), which can examination in 2015, his optometrist 800,000 miles, and tractor-trailer be reviewed at www.dot.gov/privacy. stated, ‘‘Based on my visual assessment combinations for 40 years, accumulating FOR FURTHER INFORMATION CONTACT: Mr. Alford has sufficient vision to 3.2 million miles. He holds a Class A Christine A. Hydock, Chief, Medical perform the driving tasks required to CDL from Montana. His driving record Programs Division, (202) 366–4001, operate a commercial vehicle.’’ Mr. for the last 3 years shows no crashes and [email protected], FMCSA, Alford reported that he has driven no convictions for moving violations in Department of Transportation, 1200 straight trucks for 15 years, a CMV. accumulating 72,000 miles. He holds an New Jersey Avenue SE., Room W64– Charles W. Bradley 113, Washington, DC 20590–0001. operator’s license from Utah. His Office hours are 8:30 a.m. to 5 p.m., e.t., driving record for the last 3 years shows Mr. Bradley, 53, has had a macular Monday through Friday, except Federal no crashes and no convictions for toxoplasmosis scar in his right eye since holidays. If you have questions moving violations in a CMV. birth. The visual acuity in his right eye is light perception, and in his left eye, regarding viewing or submitting Randy S. Asher material to the docket, contact Docket 20/20. Following an examination in Services, telephone (202) 366–9826. Mr. Asher, 59, has had aphakia in his 2015, his optometrist stated, ‘‘It is my right eye since childhood. The visual opinion that Mr. Bradley has sufficient SUPPLEMENTARY INFORMATION: acuity in his right eye is counting vision to safely perform the driving I. Background fingers, and in his left eye, 20/20. tasks required to operate a commercial Following an examination in 2015, his vehicle.’’ Mr. Bradley reported that he Under 49 U.S.C. 31136(e) and 31315, ophthalmologist stated, ‘‘That said, if has driven straight trucks for 27 years, FMCSA may grant an exemption from his vision, visual fields, and color vision accumulating 54,000 miles. He holds an the Federal Motor Carrier Safety tests as documented meet the criteria set operator’s license from South Carolina. Regulations for a 2-year period if it finds forth by those with direct knowledge of His driving record for the last 3 years ‘‘such exemption would likely achieve a commercial vehicle operational visual shows no crashes and no convictions for level of safety that is equivalent to or requirements, then he would seem to moving violations in a CMV. greater than the level that would be have sufficient vision to perform the Ricky A. Bray achieved absent such exemption.’’ driving tasks required to operate a FMCSA can renew exemptions at the commercial vehicle.’’ Mr. Asher Mr. Bray, 61, has a prosthetic right end of each 2-year period. The 40 reported that he has driven straight eye due to a traumatic incident in 1974. individuals listed in this notice have trucks for 30 years, accumulating The visual acuity in his right eye is no each requested such an exemption from 900,000 miles. He holds an operator’s light perception, and in his left eye, 20/ the vision requirement in 49 CFR license from Nebraska. His driving 20. Following an examination in 2015, 391.41(b)(10), which applies to drivers record for the last 3 years shows no his optometrist stated, ‘‘It is my opinion, of CMVs in interstate commerce. crashes and no convictions for moving based on the minimum requirements, Accordingly, the Agency will evaluate violations in a CMV. Ricky Bray has sufficient vision to the qualifications of each applicant to operate a commercial vehicle.’’ Mr. Bray determine whether granting an Steven W. Barrows reported that he has driven straight exemption will achieve the required Mr. Barrows, 67, has had a prosthetic trucks for 15 years, accumulating 1.88 level of safety mandated by statute. right eye since childhood. The visual million miles. He holds an operator’s

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license from Arkansas. His driving visual acuity in his right eye is 20/400, Michael D. Judy record for the last 3 years shows no and in his left eye, 20/20. Following an Mr. Judy, 55, has had amblyopia in crashes and no convictions for moving examination in 2014, his optometrist his left eye since childhood. The visual violations in a CMV. stated, ‘‘In my opinion, I believe he is acuity in his right eye is 20/20, and in able to function well in his duties of Ryan M. Coelho his left eye, 20/60. Following an driving a truck. He has sufficient vision examination in 2015, his optometrist Mr. Coelho, 37, has had strabismic to perform these duties.’’ Mr. Fries stated, ‘‘Mr. Judy is amblyopic in his left amblyopia in his right eye since reported that he has driven straight eye, but in my professional opinion I see childhood. The visual acuity in his right trucks for 10 years, accumulating 25,000 no reason he cannot drive a commercial eye is 20/100, and in his left eye, 20/20. miles, and tractor-trailer combinations vehicle, especially in light of the fact he Following an examination in 2015, his for 5 years, accumulating 137,500 miles. has proven he can do so with a 16 year optometrist stated, ‘‘The above findings He holds a Class A CDL from driving history with no accidents on his reveal no significant visual difficulties Pennsylvania. His driving record for the record.’’ Mr. Judy reported that he has that will hinder Ryan’s ability to last 3 years shows no crashes and no driven straight trucks for 16 years, perform all driving tasks required to convictions for moving violations in a accumulating 480,000 miles. He holds a operate a commercial vehicle.’’ Mr. CMV. Class A CDL from Kansas. His driving Coelho reported that he has driven Kerrie K. Furbish record for the last 3 years shows no straight trucks for 19 years, crashes and no convictions for moving Ms. Furbish, 43, has had a retinal accumulating 665,000 miles. He holds violations in a CMV. an operator’s license from Rhode Island. detachment in her right eye since 1997. His driving record for the last 3 years The visual acuity in her right eye is Karen L. Kelly shows no crashes and no convictions for counting fingers, and in her left eye, 20/ Ms. Kelly, 44, has had optic atrophy moving violations in a CMV. 20. Following an examination in 2015, in her left eye since birth. The visual her optometrist stated, ‘‘In summary, it Travis R. Cook acuity in her right eye is 20/20, and in is my opinion that Kerrie Furbish has her left eye, 20/400. Following an Mr. Cook, 44, has had amblyopia in sufficient vision (in the left eye) to examination in 2015, her his right eye since birth. The visual perform the driving tasks required to ophthalmologist stated, ‘‘I certify that acuity in his right eye is 20/400, and in operate a commercial vehicle.’’ Ms. Karen Kelly has sufficient vision to his left eye, 20/20. Following an Furbish reported that she has driven perform the driving tasks required to examination in 2015, his optometrist buses for 6 years, accumulating 2,880 operate a commercial vehicle.’’ Ms. stated, ‘‘I believe that Mr. Cook has miles. She holds a Class C CDL from Kelly reported that she has driven sufficient vision to perform the driving Maine. Her driving record for the last 3 straight trucks for 20 years, tasks required to operate a commercial years shows no crashes and no accumulating 100,000 miles. She holds vehicle.’’ Mr. Cook reported that he has convictions for moving violations in a an operator’s license from Delaware. Her driven straight trucks for 9 years, CMV. driving record for the last 3 years shows accumulating 450 miles. He holds a Jerry W. Gibson no crashes and no convictions for Class B CDL from Kansas. His driving moving violations in a CMV. record for the last 3 years shows no Mr. Gibson, 70, has had amblyopia in crashes and no convictions for moving his left eye since childhood. The visual Joel H. Kohagen violations in a CMV. acuity in his right eye is 20/20, and in Mr. Kohagen, 57, has had amblyopia his left eye, 20/400. Following an in his left eye since childhood. The Larry P. Davis examination in 2015, his optometrist visual acuity in his right eye is 20/20, Mr. Davis, 68, has a phthisical cornea stated, ‘‘Mr. Gibson meets all and in his left eye, 20/200. Following an in his left eye due to a traumatic requirements of vision to perform and examination in 2015, his optometrist incident in 2010. The visual acuity in operate a commercial vehicle.’’ Mr. stated, ‘‘I [sic] my medical opinion, Joel his right eye is 20/20, and in his left eye, Gibson reported that he has driven has sufficient vision to perform the light perception. Following an tractor-trailer combinations for 51 years, driving tasks required to operate a examination in 2015, his accumulating 6.63 million miles. He commercial vehicle.’’ Mr. Kohagen ophthalmologist stated, ‘‘In my opinion, holds a Class A CDL from Texas. His reported that he has driven straight Larry has excellent vision in his right driving record for the last 3 years shows trucks for 38 years, accumulating 1.41 eye and unfortunately because of an on no crashes and no convictions for million miles, and tractor-trailer the job trauma has lost all useful vision moving violations in a CMV. combinations for 10 years, accumulating in his left eye. Larry has a 50-year Trevor H. Hilton 40,000 miles. He holds a Class A CDL history of commercial driving and 5 from Iowa. His driving record for the years of commercial driving since his Mr. Hilton, 24, has had amblyopia in last 3 years shows 1 crash, for which he trauma, and has been accident free in his left eye since childhood. The visual was not cited and to which he did not the at time [sic].’’ Mr. Davis reported acuity in his right eye is 20/20, and in contribute, and no convictions for that he has driven straight trucks for 50 his left eye, 20/100. Following an moving violations in a CMV. years, accumulating 1.5 million miles, examination in 2015, his optometrist Kelly K. Kremer and tractor-trailer combinations for 40 stated, ‘‘Patient has sufficient corrected years, accumulating 200,000 miles. He vision to perform the driving tasks Mr. Kremer, 58, has a prosthetic left holds a Class A CDL from Missouri. His required to operate a commercial eye due to a traumatic incident in 1995. driving record for the last 3 years shows vehicle.’’ Mr. Hilton reported that he The visual acuity in his right eye is 20/ no crashes and no convictions for has driven tractor-trailer combinations 20, and in his left eye, no light moving violations in a CMV. for 3 years, accumulating 90,000 miles. perception. Following an examination He holds a Class AM CDL from Illinois. in 2015, his optometrist stated, ‘‘In my Donald S. Fries His driving record for the last 3 years medical opinion Mr. Kremer continues Mr. Fries, 43, has had amblyopia in shows no crashes and no convictions for to have sufficient vision to perform the his right eye since childhood. The moving violations in a CMV. driving tasks required to operate a

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commercial vehicle.’’ Mr. Kremer Arthur J. McClintic accumulating 1 million miles. He holds reported that he has driven straight Mr. McClintic, 30, has had refractive a Class B CDL from Georgia. His driving trucks for 2 years, accumulating 100,000 amblyopia in his left eye since birth. record for the last 3 years shows no miles, and tractor-trailer combinations The visual acuity in his right eye is 20/ crashes and no convictions for moving for 38 years, accumulating 4.75 million 20, and in his left eye, 20/60. Following violations in a CMV. miles. He holds a Class A CDL from an examination in 2015, his optometrist Tobias G. Olsen Oregon. His driving record for the last stated, ‘‘In my opinion Arthur McClintic 3 years shows no crashes and no has sufficient vision to perform the Mr. Olsen, 23, has had chronic optic convictions for moving violations in a driving tasks required to operate a neuropathy in his left eye since CMV. commercial vehicle.’’ Mr. McClintic childhood. The visual acuity in his right Edward R. Lockhart reported that he has driven straight eye is 20/20, and in his left eye, light trucks for 5 years, accumulating 102,000 perception. Following an examination Mr. Lockhart, 46, has a prosthetic left miles, and tractor-trailer combinations in 2015, his ophthalmologist stated, eye due to a traumatic incident in 1990. for 5 years, accumulating 15,000 miles. ‘‘The patient has sufficient vision to The visual acuity in his right eye is 20/ He holds a chauffer’s license from perform the driving tasks required to 20, and in his left eye, no light Michigan. His driving record for the last operate a commercial vehicle.’’ Mr. perception. Following an examination 3 years shows no crashes and no Olsen reported that he has driven in 2015, his optometrist stated, ‘‘In my convictions for moving violations in a straight trucks for 10 years, opinion, although he has is monocular CMV. accumulating 180,000 miles, tractor- [sic], these tests show Mr. Lockhart has Dale A. McCoy trailer combinations for 6 years, sufficient vision to perform his driving accumulating 60,000 miles. He holds a Mr. McCoy, 53, has had amblyopia in tasks involved in operating a Class D license from New York. His his left eye since birth. The visual acuity commercial vehicle.’’ Mr. Lockhart driving record for the last 3 years shows reported that he has driven tractor- in his right eye is 20/15, and in his left eye, 20/70. Following an examination in no crashes and no convictions for trailer combinations for 23 years, moving violations in a CMV. accumulating 575,000 miles. He holds 2015, his optometrist stated, ‘‘In my an operator’s license from Mississippi. opinion, Dale McCoy has sufficient Elroy Perkins His driving record for the last 3 years vision to perform the driving tasks shows no crashes and no convictions for required to operate a commercial Mr. Perkins, 65, has complete loss of moving violations in a CMV. vehicle.’’ Mr. McCoy reported that he vision in his left eye due to a traumatic has driven straight trucks for 12 years, incident in 1980. The visual acuity in Joshua L. Marasek accumulating 306,000 miles. He holds a his right eye is 20/20, and in his left eye, Mr. Marasek, 34, has had amblyopia Class A CDL from Maine. His driving no light perception. Following an in his right eye since childhood. The record for the last 3 years shows no examination in 2015, his visual acuity in his right eye is HM, and crashes and no convictions for moving ophthalmologist stated, ‘‘Certifies that in his left eye, 20/20. Following an violations in a CMV. in his/her medical opinion, you have examination in 2015, his Gregory G. Miller sufficient vision to perform the driving ophthalmologist stated, ‘‘Josh Marasek tasks required to operate a commercial Mr. Miller, 51, has complete loss of has sufficient vision to perform the vehicle . . . Patient has excellent vision vision in his right eye due to a traumatic out of right eye only, and is able to driving tasks required to operate a incident in childhood. The visual acuity commercial vehicle.’’ Mr. Marasek perform driving tasks.’’ Mr. Perkins in his right eye is no light perception, reported that he has driven straight reported that he has driven straight and in his left eye, 20/25. Following an trucks for 11 years, accumulating 55,000 trucks for 11 years, accumulating examination in 2015, his 297,000 miles. He holds an operator’s miles, and tractor-trailer combinations ophthalmologist stated, ‘‘I believe he for 11 years, accumulating 1.1 million license from Mississippi. His driving has sufficient vision to perform driving record for the last 3 years shows no miles. He holds a Class AM CDL from tasks required to operate a commercial Texas. His driving record for the last 3 crashes and no convictions for moving vehicle.’’ Mr. Miller reported that he has violations in a CMV. years shows no crashes and no driven tractor-trailer combinations for convictions for moving violations in a 33 years, accumulating 2.15 million Roy C. Rogers CMV. miles. He holds a Class A CDL from Rodolfo Martinez, Jr. Ohio. His driving record for the last 3 Mr. Rogers, 50, has a prosthetic right years shows no crashes and no eye due to a traumatic incident in Mr. Martinez, 62, has had a macular convictions for moving violations in a childhood. The visual acuity in his right scar in his right eye since 2009. The CMV. eye is no light perception, and in his left visual acuity in his right eye is 20/100, eye, 20/20. Following an examination in and in his left eye, 20/40. Following an Zack E. Minielly 2015, his optometrist stated, ‘‘In my examination in 2014, his optometrist Mr. Minielly, 58, has optic nerve medical opinion Mr. Rogers has stated, ‘‘In my opinion, Mr. Martinez atrophy in his left eye due to a traumatic sufficient vision to perform the driving has sufficient vision to perform the incident in childhood. The visual acuity task required to operate a commercial driving tasks required to operate a in his right eye is 20/20, and in his left vehicle.’’ Mr. Rogers reported that he commercial vehicle.’’ Mr. Martinez eye, hand motion. Following an has driven straight trucks for 28 years, reported that he has driven straight examination in 2015, his optometrist accumulating 308,000 miles, and trucks for 12 years, accumulating 12,000 stated, ‘‘Old optic nerve atrophy tractor-trailer combinations for 24 years, miles. He holds a Class A CDL from secondary to blunt trauma @ 14 years accumulating 360,000 miles. He holds a Texas. His driving record for the last 3 old . . . In my professional Opinion Class A CDL from West Virginia. His years shows no crashes and no [sic] Mr. Minielly has the ability to have driving record for the last 3 years shows convictions for moving violations in a a CDL.’’ Mr. Minielly reported that he no crashes and no convictions for CMV. has driven straight trucks for 20 years, moving violations in a CMV.

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Michael P. Rydzinski Robert G. Seils from North Carolina. His driving record Mr. Rydzinski, 55, has had amblyopia Mr. Seils, 62, has a corneal scar in his for the last 3 years shows no crashes and and a color deficiency in his left eye left eye due to a traumatic incident in no convictions for moving violations in since birth. The visual acuity in his childhood. The visual acuity in his right a CMV. right eye is 20/20, and in his left eye, eye is 20/20, and in his left eye, 20/200. Paul J. Vines Following an examination in 2015, his 20/80. Following an examination in Mr. Vines, 49, has had amblyopia in optometrist stated, ‘‘He has had a 2015, his ophthalmologist stated, his left eye since childhood. The visual longstanding decrease in his left eye due ‘‘Because Mr. Rydzinski was born with acuity in his right eye is 20/30, and in to a corneal scar at age 3 . . . I feel that these two conditions, I do believe he has his left eye, 20/200. Following an made accommodations to drive a he is safe to operate a commercial vehicle.’’ Mr. Seils reported that he has examination in 2015, his optometrist commercial vehicle safely and would be stated, ‘‘Mr. Vines has shown sufficient able to see a traffic light signal and be driven straight trucks for 30 years, accumulating 936,000 miles, and vision for operating a commercial able to determine which is red, green, vehicle. In my medical opinion, he has and yellow.’’ Mr. Rydzinski reported tractor-trailer combinations for 30 years, accumulating 936,000 miles. He holds a sufficient vision to perform the driving that he has driven straight trucks for 14 tasks.’’ Mr. Vines reported that he has years, accumulating 182,000 miles. He Class AM CDL from New York. His driving record for the last 3 years shows driven straight trucks for 22 years, holds a chauffer’s license from accumulating 220,000 miles, and Michigan. His driving record for the last no crashes and no convictions for moving violations in a CMV. tractor-trailer combinations for 12 years, 3 years shows no crashes and no accumulating 120,000 miles. He holds convictions for moving violations in a Randall C. Stephens an operator’s license from Alabama. His CMV. Mr. Stephens, 26, has had amblyopia driving record for the last 3 years shows Dale L. Schneider in his right eye since childhood. The no crashes and no convictions for moving violations in a CMV. Mr. Schneider, 51, has a corneal scar visual acuity in his right eye is 20/60, in his right eye due to a traumatic and in his left eye, 20/20. Following an Hany A. Wagieh examination in 2015, his optometrist incident in childhood. The visual acuity Mr. Wagieh, 40, has had amblyopia in in his right eye is no light perception, stated, ‘‘I believe Randall Stephens has sufficient vision for driving a his right eye since birth. The visual and in his left eye, 20/15. Following an acuity in his right eye is 20/80, and in examination in 2015, his optometrist commercial vehicle.’’ Mr. Stephens reported that he has driven tractor- his left eye, 20/20. Following an stated, ‘‘In my opinion, I would examination in 2015, his consider his vision to be sufficient to trailer combinations for 3 years, accumulating 75,000 miles. He holds an ophthalmologist stated, ‘‘In my medical continue operating commercial operator’s license from Tennessee. His opinion, the patient has sufficient vision vehicles.’’ Mr. Schneider reported that driving record for the last 3 years shows to perform the driving tasks required to he has driven straight trucks for 4 years, no crashes and no convictions for operate a commercial vehicle.’’ Mr. accumulating 1,600 miles, and tractor- moving violations in a CMV. Wagieh reported that he has driven trailer combinations for 10 years, buses for 8 years, accumulating 368,000 accumulating 16,000 miles. He holds a Dale L. Stewart miles. He holds an operator’s license Class A CDL from Iowa. His driving Mr. Stewart, 56, has had amblyopia from New Jersey. His driving record for record for the last 3 years shows no secondary to exotropia in his left eye the last 3 years shows no crashes and no crashes and no convictions for moving since childhood. The visual acuity in convictions for moving violations in a violations in a CMV. his right eye is 20/20, and in his left eye, CMV. 20/70. Following an examination in Keith R. Seabaugh Charles W. Williamson 2015, his optometrist stated, ‘‘I believe Mr. Seabaugh, 60, has a prosthetic this patient has sufficient vision to Mr. Williamson, 74, has had right eye due to a traumatic incident in operate a commercial vehicle on major amblyopia in his right eye since 1983. The visual acuity in his right eye interstates and road ways.’’ Mr. Stewart childhood. The visual acuity in his right is no light perception, and in his left reported that he has driven tractor- eye is 20/100, and in his left eye, 20/25. eye, 20/20. Following an examination in trailer combinations for 38 years, Following an examination in 2015, his 2015, his optometrist stated, ‘‘In my accumulating 3.99 million miles. He optometrist stated, ‘‘Mr. Williamson opinion that [sic] Mr. Keith Seabaugh’s holds a Class CA CDL from Michigan. should have adequate visual acuity to visual deficiency is stable, and he has His driving record for the last 3 years meet the requirements for a CDL.’’ Mr. sufficient vision to perform the driving shows no crashes and one conviction for Williamson reported that he has driven tasks required to operate a commercial a moving violation in a CMV; he was straight trucks for 2 years, accumulating motor vehicle, and that this condition cited for improper lane use. 200,000 miles, and tractor-trailer will not adversely affect his ability to combinations for 50 years, accumulating Warren S. Supulski operate a commercial motor vehicle 5.75 million miles. He holds a Class A safely as long as visual correction is Mr. Supulski, 57, has had amblyopia CDL from Oklahoma. His driving record worn.’’ Mr. Seabaugh reported that he in his left eye since childhood. The for the last 3 years shows no crashes and has driven straight trucks for 14 years, visual acuity in his right eye is 20/20, no convictions for moving violations in accumulating 210,000 miles, tractor- and in his left eye, 20/200. Following an a CMV. trailer combinations for 1 year, examination in 2015, his optometrist accumulating 11,000 miles, and buses stated, ‘‘It is my opinion that Warren Gregory A. Woodward for 3 months, accumulating 7,500 miles. has sufficient vision to preform [sic] the Mr. Woodward, 65, has a prosthetic He holds an operator’s license from driving task required to operate a left eye due to a traumatic incident in Missouri. His driving record for the last commercial vehicle.’’ Mr. Supulski 1980. The visual acuity in his right eye 3 years shows no crashes and no reported that he has driven straight is 20/20, and in his left eye, no light convictions for moving violations in a trucks for 22 years, accumulating perception. Following an examination CMV. 220,000 miles. He holds a Class B CDL in 2015, his optometrist stated, ‘‘In my

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medical opinion, Mr. Woodward’s facility, please enclose a stamped, self- would enable these individuals who vision is sufficient for the vision addressed postcard or envelope. have had one or more seizures and are required to operate a commercial FMCSA will consider all comments taking anti-seizure medication to vehicle.’’ Mr. Woodward reported that and material received during the operate CMVs for up to 2 years in he has driven tractor-trailer comment period and may change this interstate commerce. combinations for 31 years, accumulating notice based on your comments. DATES: Comments must be received on 3.19 million miles. He holds a Class A Viewing Comments and Documents or before December 14, 2015. CDL from Oregon. His driving record for ADDRESSES: You may submit comments the last 3 years shows no crashes and no To view comments, as well as documents mentioned in this preamble bearing the Federal Docket Management convictions for moving violations in a System (FDMS) Docket ID FMCSA– CMV. as being available in the docket, go to http://www.regulations.gov and insert 2015–0119 using any of the following Alton R. Young III methods: the docket number FMCSA–2015–0072 • in the ‘‘Keyword’’ box and click Federal eRulemaking Portal: Go to Mr. Young, 47, has complete loss of www.regulations.gov. Follow the on-line vision in his right eye due to a traumatic ‘‘Search.’’ Next, click ‘‘Open Docket Folder’’ button and choose the instructions for submitting comments. incident in childhood. The visual acuity • Mail: Docket Management Facility; in his right eye is counting fingers, and document listed to review. If you do not have access to the Internet, you may U.S. Department of Transportation, 1200 in his left eye, 20/20. Following an New Jersey Avenue SE., West Building examination in 2015, his optometrist view the docket online by visiting the Docket Management Facility in Room Ground Floor, Room W12–140, stated, ‘‘I feel his vision is adequate to W12–140 on the ground floor of the Washington, DC 20590–0001. drive a commercial vehicle.’’ Mr. Young • DOT West Building, 1200 New Jersey Hand Delivery or Courier: West reported that he has driven tractor- Avenue SE., Washington, DC 20590, Building Ground Floor, Room W12–140, trailer combinations for 8 years, between 9 a.m. and 5 p.m., e.t., Monday 1200 New Jersey Avenue SE., accumulating 832,000 miles. He holds a through Friday, except Federal holidays. Washington, DC between 9 a.m. and 5 Class A CDL from Mississippi. His p.m., Monday through Friday, except driving record for the last 3 years shows Dated: November 5, 2015 Federal Holidays. no crashes and no convictions for Larry W. Minor, • Fax: 1–202–493–2251. moving violations in a CMV. Associate Administrator for Policy. Each submission must include the III. Public Participation and Request for [FR Doc. 2015–28741 Filed 11–10–15; 8:45 am] Agency name and the docket ID for this Comments BILLING CODE 4910–EX–P Notice. Note that DOT posts all comments received without change to FMCSA encourages you to participate www.regulations.gov, including any by submitting comments and related DEPARTMENT OF TRANSPORTATION personal information included in a materials. comment. Please see the Privacy Act Federal Motor Carrier Safety Submitting Comments heading below. Administration Docket: For access to the docket to If you submit a comment, please [Docket No. FMCSA–2015–0119] read background documents or include the docket number for this comments, go to www.regulations.gov, notice, indicate the specific section of Qualification of Drivers; Exemption at any time or Room W12–140 on the this document to which each comment Applications; Epilepsy and Seizure ground level of the West Building, 1200 applies, and provide a reason for each Disorders New Jersey Avenue SE., Washington, suggestion or recommendation. You AGENCY: Federal Motor Carrier Safety DC between 9 a.m. and 5 p.m., Monday may submit your comments and Administration (FMCSA), DOT. through Friday, except Federal holidays. material online or by fax, mail, or hand The FDMS is available 24 hours each ACTION: Notice of applications for delivery, but please use only one of day, 365 days each year. If you want exemptions; request for comments. these means. FMCSA recommends that acknowledgment that we received your you include your name and a mailing SUMMARY: FMCSA announces receipt of comments, please include a self- address, an email address, or a phone applications from 13 individuals for an addressed, stamped envelope or number in the body of your document exemption from the prohibition against postcard or print the acknowledgement so the Agency can contact you if it has persons with a clinical diagnosis of page that appears after submitting questions regarding your submission. epilepsy or any other condition that is comments on-line. To submit your comment online, go to likely to cause a loss of consciousness Privacy Act: In accordance with 5 http://www.regulations.gov and put the or any loss of ability to operate a U.S.C. 553(c), DOT solicits comments docket number FMCSA–2015–0072 in commercial motor vehicle (CMV) in from the public to better inform its the ‘‘Keyword’’ box, and click ‘‘Search. interstate commerce. The regulation and rulemaking process. DOT posts these When the new screen appears, click on the associated advisory criteria comments, without edit, including any ‘‘Comment Now!’’ button and type your published in the Code of Federal personal information the commenter comment into the text box in the Regulations as the ‘‘Instructions for provides, to www.regulations.gov, as following screen. Choose whether you Performing and Recording Physical described in the system records notice are submitting your comment as an Examinations’’ have resulted in (DOT/ALL–14 FDMS), which can be individual or on behalf of a third party numerous drivers being prohibited from reviewed at www.dot.gov/privacy. and then submit. If you submit your operating CMVs in interstate commerce FOR FURTHER INFORMATION CONTACT: comments by mail or hand delivery, based on the fact that they have had one Christine A. Hydock, Chief, Medical submit them in an unbound format, no or more seizures and are taking anti- Programs Division, (202) 366–4001, or larger than 81⁄2 by 11 inches, suitable for seizure medication, rather than an via email at [email protected], or copying and electronic filing. If you individual analysis of their by letter to FMCSA, Room W64–113, submit comments by mail and would circumstances by a qualified medical Department of Transportation, 1200 like to know that they reached the examiner. If granted, the exemptions New Jersey Avenue SE., Washington,

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DC 20590–0001. Office hours are from may be qualified to operate a CMV in physician states that he is supportive of 8:30 a.m. to 5 p.m., Monday through interstate commerce. Interstate drivers Mr. Beaver receiving an exemption. Friday, except Federal holidays. with a history of a single unprovoked Daniel Gerald Bretz, Jr. SUPPLEMENTARY INFORMATION: seizure may be qualified to drive a CMV in interstate commerce if seizure-free Mr. Bretz is a 40 year-old driver in Background and off anti-seizure medication for a 5- Pennsylvania. He has a history of a Under 49 U.S.C. 31315 and 31136(e), year period or more. seizure disorder and has remained FMCSA may grant an exemption for up seizure free since 2011. He takes anti- to a 2-year period if it finds ‘‘such Submitting Comments seizure medication with the dosage and exemption would likely achieve a level You may submit your comments and frequency remaining the same since that of safety that is equivalent to or greater material online or by fax, mail, or hand time. If granted the exemption, he than the level that would be achieved delivery, but please use only one of would like to drive a CMV. His absent such exemption.’’ The statutes these means. FMCSA recommends that physician states that he is supportive of allow the Agency to renew exemptions you include your name and a mailing Mr. Bretz receiving an exemption. at the end of the 2-year period. The 13 address, an email address, or a phone Kenneth Lee Brown individuals listed in this notice have number in the body of your document requested an exemption from the so that FMCSA can contact you if there Mr. Brown is a 63 year-old class A epilepsy prohibition in 49 CFR are questions regarding your CDL holder in Wyoming. He has a 391.41(b)(8), which applies to drivers submission. To submit your comment history of seizure prior to a meningioma who operate CMVs as defined in 49 CFR online, go to http://www.regulations.gov resection in 2003. He takes anti-seizure 390.5, in interstate commerce. Section and in the search box insert the docket medication with the dosage and 391.41(b)(8) states that a person is number ‘‘FMCSA–2015–0119’’ and click frequency remaining the same since that physically qualified to drive a CMV if the search button. When the new screen time. If granted the exemption, he that person has no established medical appears, click on the blue ‘‘Comment would like to drive a CMV. His history or clinical diagnosis of epilepsy Now!’’ button on the right hand side of physician states that he is supportive of or any other condition which is likely the page. On the new page, enter Mr. Brown receiving an exemption. to cause the loss of consciousness or any information required including the Douglas Ray Burkhardt loss of ability to control a CMV. specific section of this document to FMCSA provides medical advisory which each comment applies, and Mr. Burkhardt is a 54 year-old class B criteria for use by medical examiners in provide a reason for each suggestion or CDL holder in South Dakota. He has a determining whether drivers with recommendation. If you submit your history of a seizure disorder and has certain medical conditions should be comments by mail or hand delivery, remained seizure free since 1991. He certified to operate CMVs in intrastate submit them in an unbound format, no takes anti-seizure medication with the commerce. The advisory criteria larger than 81⁄2 by 11 inches, suitable for dosage and frequency remaining the indicate that if an individual has had a copying and electronic filing. If you same since September 2013. If granted sudden episode of a non-epileptic submit comments by mail and would the exemption, he would like to drive a seizure or loss of consciousness of like to know that they reached the CMV. His physician states that he is unknown cause that did not require facility, please enclose a stamped, self- supportive of Mr. Burkhardt receiving anti-seizure medication, the decision addressed postcard or envelope. an exemption. whether that person’s condition is likely We will consider all comments and Patrick P. Griffis, Sr. to cause the loss of consciousness or material received during the comment loss of ability to control a CMV should period and may change this proposed Mr. Griffis is a 60 year-old driver in be made on an individual basis by the rule based on your comments. FMCSA Mississippi. He has a history of two medical examiner in consultation with may issue a final rule at any time after seizures and has remained seizure free the treating physician. Before the close of the comment period. since February 2015. He takes anti- certification is considered, it is seizure medication with the dosage and suggested that a 6-month waiting period Viewing Comments and Documents frequency remaining the same since that elapse from the time of the episode. To view comments, as well as any time. If granted the exemption, he Following the waiting period, it is documents mentioned in this preamble, would like to drive a CMV. His suggested that the individual have a To submit your comment online, go to physician states that he is supportive of complete neurological examination. If http://www.regulations.gov and in the Mr. Griffis receiving an exemption. the results of the examination are search box insert the docket number Curtis Alan Hartman negative and anti-seizure medication is ‘‘FMCSA–2015–0119’’ and click Mr. Hartman is a 50 year-old class B not required, then the driver may be ‘‘Search.’’ Next, click ‘‘Open Docket CDL holder in Maryland. He has a qualified. Folder’’ and you will find all documents In those individual cases where a history of epilepsy and has remained and comments related to the proposed driver had a seizure or an episode of seizure free since 1997. He takes anti- rulemaking. loss of consciousness that resulted from seizure medication with the dosage and a known medical condition (e.g., drug Summary of Applications frequency remaining the same since reaction, high temperature, acute 2002. If granted the exemption, he Christopher Wayne Beaver infectious disease, dehydration, or acute would like to drive a CMV. His metabolic disturbance), certification Mr. Beaver is a 45 year-old driver in physician states that he is supportive of should be deferred until the driver has Pennsylvania. He has a history of a Mr. Hartman receiving an exemption. recovered fully from that condition, has single seizure and has remained seizure Wendell Frank Headley, Jr. no existing residual complications, and free since April 2014. He takes anti- is not taking anti-seizure medication. seizure medication with the dosage and Mr. Headley is a 31 year-old driver in Drivers who have a history of frequency remaining the same since July Missouri. He has a history of a seizure epilepsy/seizures, off anti-seizure 2014. If granted the exemption, he disorder and has remained seizure free medication and seizure-free for 10 years, would like to drive a CMV. His since 2007. He takes anti-seizure

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medication with the dosage and Thomas B. Vivirito • Hand Delivery: West Building frequency remaining the same since Mr. Vivirito is a 31 year-old class B Ground Floor, Room W12–140, 1200 2010. If granted the exemption, he CDL holder in Pennsylvania. He has a New Jersey Avenue SE., Washington, would like to drive a CMV. His history of a single unprovoked seizure DC, between 9 a.m. and 5 p.m., Monday physician states that he is supportive of in 2008. He takes anti-seizure through Friday, except Federal Mr. Headley receiving an exemption. medication with the dosage and Holidays. • Fax: 1–202–493–2251. Gregory L. Hrutkay frequency remaining the same since that time. If granted the exemption, he Instructions: Each submission must Mr. Hrutkay is a 66 year-old class A would like to drive a CMV. His include the Agency name and the CDL holder in driver in Pennsylvania. physician states that he is supportive of docket numbers for this notice. Note He has a history of a seizure disorder Mr. Vivirito receiving an exemption. that all comments received will be and has remained seizure free since posted without change to http:// 2005. He takes anti-seizure medication Request for Comments www.regulations.gov, including any with the dosage and frequency In accordance with 49 U.S.C. 31315 personal information provided. Please remaining the same since that time. If and 31136(e), FMCSA requests public see the Privacy Act heading below for granted the exemption, he would like to comment from all interested persons on further information. drive a CMV. His physician states that the exemption applications described in Docket: For access to the docket to he is supportive of Mr. Hrutkay this notice. We will consider all read background documents or receiving an exemption. comments received before the close of comments, go to http:// business on the closing date indicated www.regulations.gov at any time or Trever Bryant Jacobson earlier in the notice. Room W12–140 on the ground level of the West Building, 1200 New Jersey Mr. Jacobson is a 33 year-old driver in Issued on: November 5, 2015. Avenue SE., Washington, DC, between 9 North Dakota. He has a history of a Larry W. Minor, a.m. and 5 p.m., Monday through single seizure prior to benign brain Associate Administrator for Policy. Friday, except Federal holidays. The tumor removal in 2012. He takes anti- [FR Doc. 2015–28739 Filed 11–10–15; 8:45 am] Federal Docket Management System seizure medication with the dosage and BILLING CODE 4910–EX–P (FDMS) is available 24 hours each day, frequency remaining the same since that 365 days each year. If you want time. If granted the exemption, he acknowledgment that we received your would like to drive a CMV. His DEPARTMENT OF TRANSPORTATION comments, please include a self- physician states that he is supportive of addressed, stamped envelope or Mr. Jacobson receiving an exemption. Federal Motor Carrier Safety Administration postcard or print the acknowledgement Michael William Ketchum, Sr. page that appears after submitting [Docket No. FMCSA–2015–0336] comments on-line. Mr. Ketchum is a 60 year-old driver Privacy Act: In accordance with 5 in Michigan. He has a history of a single Qualification of Drivers; Exemption U.S.C. 553(c), DOT solicits comments seizure in 1972. He takes anti-seizure Applications; Diabetes Mellitus from the public to better inform its medication with the dosage and AGENCY: Federal Motor Carrier Safety rulemaking process. DOT posts these frequency remaining the same since Administration (FMCSA). comments, without edit, including any 2004. If granted the exemption, he ACTION: personal information the commenter would like to drive a CMV. His Notice of applications for exemptions; request for comments. provides, to www.regulations.gov, as physician states that he is supportive of described in the system of records Mr. Ketchum receiving an exemption. SUMMARY: FMCSA announces receipt of notice (DOT/ALL–14 FDMS), which can Marion Franklin Legg, Jr. applications from 54 individuals for be reviewed at www.dot.gov/privacy. exemption from the prohibition against FOR FURTHER INFORMATION CONTACT: Mr. Legg is a 60 year-old driver in persons with insulin-treated diabetes Christine A. Hydock, Chief, Medical Maryland. He has a history of a single mellitus (ITDM) operating commercial Programs Division, (202) 366–4001, unprovoked seizure in October 2011. He motor vehicles (CMVs) in interstate [email protected], FMCSA, takes anti-seizure medication with the commerce. If granted, the exemptions Department of Transportation, 1200 dosage and frequency remaining the would enable these individuals with New Jersey Avenue SE., Room W64– same since that time. If granted the ITDM to operate CMVs in interstate 113, Washington, DC 20590–0001. exemption, he would like to drive a commerce. Office hours are 8:30 a.m. to 5 p.m., e.t., CMV. His physician states that he is DATES: Comments must be received on Monday through Friday, except Federal supportive of Mr. Legg receiving an or before December 14, 2015. holidays. exemption. ADDRESSES: You may submit comments SUPPLEMENTARY INFORMATION: bearing the Federal Docket Management Alvin Clarence Strite I. Background System (FDMS) Docket No. FMCSA– Mr. Strite is a 55 year-old class A CDL 2015–0336 using any of the following Under 49 U.S.C. 31136(e) and 31315, holder in Pennsylvania. He has a history methods: FMCSA may grant an exemption from of a seizure disorder and has remained • Federal eRulemaking Portal: Go to the Federal Motor Carrier Safety seizure free since 2007. He takes anti- http://www.regulations.gov. Follow the Regulations for a 2-year period if it finds seizure medication with the dosage and on-line instructions for submitting ‘‘such exemption would likely achieve a frequency remaining the same since comments. level of safety that is equivalent to or September 2013. If granted the • Mail: Docket Management Facility; greater than the level that would be exemption, he would like to drive a U.S. Department of Transportation, 1200 achieved absent such exemption.’’ The CMV. His physician states that he is New Jersey Avenue SE., West Building statute also allows the Agency to renew supportive of Mr. Strite receiving an Ground Floor, Room W12–140, exemptions at the end of the 2-year exemption. Washington, DC 20590–0001. period. The 54 individuals listed in this

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notice have recently requested such an past 12 months and no recurrent (2 or resulting in impaired cognitive function exemption from the diabetes prohibition more) severe hypoglycemic episodes in that occurred without warning in the in 49 CFR 391.41(b)(3), which applies to the last 5 years. His endocrinologist past 12 months and no recurrent (2 or drivers of CMVs in interstate commerce. certifies that Mr. Bloemker understands more) severe hypoglycemic episodes in Accordingly, the Agency will evaluate diabetes management and monitoring, the last 5 years. His endocrinologist the qualifications of each applicant to has stable control of his diabetes using certifies that Mr. Bush understands determine whether granting the insulin, and is able to drive a CMV diabetes management and monitoring, exemption will achieve the required safely. Mr. Bloemker meets the has stable control of his diabetes using level of safety mandated by statute. requirements of the vision standard at insulin, and is able to drive a CMV 49 CFR 391.41(b)(10). His safely. Mr. Bush meets the requirements II. Qualifications of Applicants ophthalmologist examined him in 2015 of the vision standard at 49 CFR Ramon Becerra and certified that he does not have 391.41(b)(10). His optometrist examined diabetic retinopathy. He holds an him in 2015 and certified that he does Mr. Becerra, 44, has had ITDM since operator’s license from Ohio. not have diabetic retinopathy. He holds 2015. His endocrinologist examined him a Class A CDL from Illinois. in 2015 and certified that he has had no Billy J. Bookout severe hypoglycemic reactions resulting Mr. Bookout, 23, has had ITDM since Gene D. Carey, Jr. in loss of consciousness, requiring the 1995. His endocrinologist examined him Mr. Carey, 44, has had ITDM since assistance of another person, or in 2015 and certified that he has had no 2014. His endocrinologist examined him resulting in impaired cognitive function severe hypoglycemic reactions resulting in 2015 and certified that he has had no that occurred without warning in the in loss of consciousness, requiring the severe hypoglycemic reactions resulting past 12 months and no recurrent (2 or assistance of another person, or in loss of consciousness, requiring the more) severe hypoglycemic episodes in resulting in impaired cognitive function assistance of another person, or the last 5 years. His endocrinologist that occurred without warning in the resulting in impaired cognitive function certifies that Mr. Becerra understands past 12 months and no recurrent (2 or that occurred without warning in the diabetes management and monitoring, more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or has stable control of his diabetes using the last 5 years. His endocrinologist more) severe hypoglycemic episodes in insulin, and is able to drive a CMV certifies that Mr. Bookout understands the last 5 years. His endocrinologist safely. Mr. Becerra meets the diabetes management and monitoring, certifies that Mr. Carey understands requirements of the vision standard at has stable control of his diabetes using diabetes management and monitoring, 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV has stable control of his diabetes using examined him in 2015 and certified that safely. Mr. Bookout meets the insulin, and is able to drive a CMV he does not have diabetic retinopathy. requirements of the vision standard at safely. Mr. Carey meets the He holds an operator’s license from 49 CFR 391.41(b)(10). His requirements of the vision standard at Indiana. ophthalmologist examined him in 2015 49 CFR 391.41(b)(10). His optometrist Harry L. Blakely and certified that he does not have examined him in 2015 and certified that diabetic retinopathy. He holds an he does not have diabetic retinopathy. Mr. Blakely, 52, has had ITDM since operator’s license from Oklahoma. He holds a Class A CDL from 2015. His endocrinologist examined him Pennsylvania. in 2015 and certified that he has had no David M. Brady severe hypoglycemic reactions resulting Mr. Brady, 46, has had ITDM since James C. Decker in loss of consciousness, requiring the 2013. His endocrinologist examined him Mr. Decker, 66, has had ITDM since assistance of another person, or in 2015 and certified that he has had no 2014. His endocrinologist examined him resulting in impaired cognitive function severe hypoglycemic reactions resulting in 2015 and certified that he has had no that occurred without warning in the in loss of consciousness, requiring the severe hypoglycemic reactions resulting past 12 months and no recurrent (2 or assistance of another person, or in loss of consciousness, requiring the more) severe hypoglycemic episodes in resulting in impaired cognitive function assistance of another person, or the last 5 years. His endocrinologist that occurred without warning in the resulting in impaired cognitive function certifies that Mr. Blakely understands past 12 months and no recurrent (2 or that occurred without warning in the diabetes management and monitoring, more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or has stable control of his diabetes using the last 5 years. His endocrinologist more) severe hypoglycemic episodes in insulin, and is able to drive a CMV certifies that Mr. Brady understands the last 5 years. His endocrinologist safely. Mr. Blakely meets the diabetes management and monitoring, certifies that Mr. Decker understands requirements of the vision standard at has stable control of his diabetes using diabetes management and monitoring, 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV has stable control of his diabetes using examined him in 2015 and certified that safely. Mr. Brady meets the insulin, and is able to drive a CMV he does not have diabetic retinopathy. requirements of the vision standard at safely. Mr. Decker meets the He holds a Class A CDL from 49 CFR 391.41(b)(10). His optometrist requirements of the vision standard at Minnesota. examined him in 2015 and certified that 49 CFR 391.41(b)(10). His Steven J. Bloemker he does not have diabetic retinopathy. ophthalmologist examined him in 2015 He holds a Class A CDL from Nebraska. and certified that he does not have Mr. Bloemker, 55, has had ITDM since diabetic retinopathy. He holds a Class A William G. Bush 2012. His endocrinologist examined him CDL from California. in 2015 and certified that he has had no Mr. Bush, 62, has had ITDM since severe hypoglycemic reactions resulting 2015. His endocrinologist examined him Richard D. Doherty in loss of consciousness, requiring the in 2015 and certified that he has had no Mr. Doherty, 54, has had ITDM since assistance of another person, or severe hypoglycemic reactions resulting 1974. His endocrinologist examined him resulting in impaired cognitive function in loss of consciousness, requiring the in 2015 and certified that he has had no that occurred without warning in the assistance of another person, or severe hypoglycemic reactions resulting

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in loss of consciousness, requiring the in 2015 and certified that he has had no David F. Goehring assistance of another person, or severe hypoglycemic reactions resulting Mr. Goehring, 57, has had ITDM since resulting in impaired cognitive function in loss of consciousness, requiring the 2015. His endocrinologist examined him that occurred without warning in the assistance of another person, or in 2015 and certified that he has had no past 12 months and no recurrent (2 or resulting in impaired cognitive function severe hypoglycemic reactions resulting more) severe hypoglycemic episodes in that occurred without warning in the in loss of consciousness, requiring the the last 5 years. His endocrinologist past 12 months and no recurrent (2 or assistance of another person, or certifies that Mr. Doherty understands more) severe hypoglycemic episodes in resulting in impaired cognitive function diabetes management and monitoring, the last 5 years. His endocrinologist that occurred without warning in the has stable control of his diabetes using certifies that Mr. Forrister understands past 12 months and no recurrent (2 or insulin, and is able to drive a CMV diabetes management and monitoring, more) severe hypoglycemic episodes in safely. Mr. Doherty meets the has stable control of his diabetes using the last 5 years. His endocrinologist requirements of the vision standard at insulin, and is able to drive a CMV certifies that Mr. Goehring understands 49 CFR 391.41(b)(10). His safely. Mr. Forrister meets the diabetes management and monitoring, ophthalmologist examined him in 2015 requirements of the vision standard at has stable control of his diabetes using and certified that he has stable 49 CFR 391.41(b)(10). His optometrist nonproliferative diabetic retinopathy. examined him in 2015 and certified that insulin, and is able to drive a CMV He holds a Class B CDL from he does not have diabetic retinopathy. safely. Mr. Goehring meets the Massachusetts. He holds a chauffeur’s license from requirements of the vision standard at Michigan. 49 CFR 391.41(b)(10). His Richard N. Dunn ophthalmologist examined him in 2015 Mr. Dunn, 57, has had ITDM since Ronald J. Gasper and certified that he has stable 2014. His endocrinologist examined him Mr. Gasper, 55, has had ITDM since proliferative diabetic retinopathy. He in 2015 and certified that he has had no 2012. His endocrinologist examined him holds a Class A CDL from Wisconsin. severe hypoglycemic reactions resulting in 2015 and certified that he has had no Robert J. Golding in loss of consciousness, requiring the severe hypoglycemic reactions resulting assistance of another person, or in loss of consciousness, requiring the Mr. Golding, 47, has had ITDM since resulting in impaired cognitive function assistance of another person, or 2015. His endocrinologist examined him that occurred without warning in the resulting in impaired cognitive function in 2015 and certified that he has had no past 12 months and no recurrent (2 or that occurred without warning in the severe hypoglycemic reactions resulting more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or in loss of consciousness, requiring the the last 5 years. His endocrinologist more) severe hypoglycemic episodes in assistance of another person, or certifies that Mr. Dunn understands the last 5 years. His endocrinologist resulting in impaired cognitive function diabetes management and monitoring, certifies that Mr. Gasper understands that occurred without warning in the has stable control of his diabetes using diabetes management and monitoring, past 12 months and no recurrent (2 or insulin, and is able to drive a CMV has stable control of his diabetes using more) severe hypoglycemic episodes in safely. Mr. Dunn meets the requirements insulin, and is able to drive a CMV the last 5 years. His endocrinologist of the vision standard at 49 CFR safely. Mr. Gasper meets the certifies that Mr. Golding understands 391.41(b)(10). His ophthalmologist requirements of the vision standard at diabetes management and monitoring, examined him in 2015 and certified that 49 CFR 391.41(b)(10). His has stable control of his diabetes using he does not have diabetic retinopathy. ophthalmologist examined him in 2015 insulin, and is able to drive a CMV He holds a Class B CDL from Kansas. and certified that he has stable safely. Mr. Golding meets the nonproliferative diabetic retinopathy. requirements of the vision standard at Thomas C. Eklund He holds a Class A CDL from South 49 CFR 391.41(b)(10). His Mr. Eklund, 65, has had ITDM since Dakota. ophthalmologist examined him in 2015 2015. His endocrinologist examined him and certified that he does not have Jeremy J. Giesbrecht in 2015 and certified that he has had no diabetic retinopathy. He holds a Class A severe hypoglycemic reactions resulting Mr. Giesbrecht, 40, has had ITDM CDL from Maine. since 2014. His endocrinologist in loss of consciousness, requiring the Ethan T. Heideman assistance of another person, or examined him in 2015 and certified that resulting in impaired cognitive function he has had no severe hypoglycemic Mr. Heideman, 23, has had ITDM that occurred without warning in the reactions resulting in loss of since 2006. His endocrinologist past 12 months and no recurrent (2 or consciousness, requiring the assistance examined him in 2015 and certified that more) severe hypoglycemic episodes in of another person, or resulting in he has had no severe hypoglycemic the last 5 years. His endocrinologist impaired cognitive function that reactions resulting in loss of certifies that Mr. Eklund understands occurred without warning in the past 12 consciousness, requiring the assistance diabetes management and monitoring, months and no recurrent (2 or more) of another person, or resulting in has stable control of his diabetes using severe hypoglycemic episodes in the impaired cognitive function that insulin, and is able to drive a CMV last 5 years. His endocrinologist certifies occurred without warning in the past 12 safely. Mr. Eklund meets the that Mr. Giesbrecht understands months and no recurrent (2 or more) requirements of the vision standard at diabetes management and monitoring, severe hypoglycemic episodes in the 49 CFR 391.41(b)(10). His optometrist has stable control of his diabetes using last 5 years. His endocrinologist certifies examined him in 2015 and certified that insulin, and is able to drive a CMV that Mr. Heideman understands diabetes he does not have diabetic retinopathy. safely. Mr. Giesbrecht meets the management and monitoring, has stable He holds a Class A CDL from Oregon. requirements of the vision standard at control of his diabetes using insulin, 49 CFR 391.41(b)(10). His optometrist and is able to drive a CMV safely. Mr. Rodney L. Forrister, Jr. examined him in 2015 and certified that Heideman meets the requirements of the Mr. Forrister, 30, has had ITDM since he does not have diabetic retinopathy. vision standard at 49 CFR 391.41(b)(10). 1995. His endocrinologist examined him He holds a Class A CDL from Indiana. His optometrist examined him in 2015

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and certified that he does not have of the vision standard at 49 CFR safely. Mr. Kerr meets the requirements diabetic retinopathy. He holds a Class A 391.41(b)(10). His optometrist examined of the vision standard at 49 CFR CDL from Minnesota. him in 2015 and certified that he does 391.41(b)(10). His optometrist examined not have diabetic retinopathy. He holds him in 2015 and certified that he does Benjamin R. Hickerson a chauffeur’s license from Michigan. not have diabetic retinopathy. He holds Mr. Hickerson, 33, has had ITDM an operator’s license from Kentucky. since 2014. His endocrinologist David T. Issler examined him in 2015 and certified that Mr. Issler, 50, has had ITDM since Mark C. Kucharski he has had no severe hypoglycemic 1996. His endocrinologist examined him Mr. Kucharski, 38, has had ITDM reactions resulting in loss of in 2015 and certified that he has had no since 1989. His endocrinologist consciousness, requiring the assistance severe hypoglycemic reactions resulting examined him in 2015 and certified that of another person, or resulting in in loss of consciousness, requiring the he has had no severe hypoglycemic impaired cognitive function that assistance of another person, or reactions resulting in loss of occurred without warning in the past 12 resulting in impaired cognitive function consciousness, requiring the assistance months and no recurrent (2 or more) that occurred without warning in the of another person, or resulting in severe hypoglycemic episodes in the past 12 months and no recurrent (2 or impaired cognitive function that last 5 years. His endocrinologist certifies more) severe hypoglycemic episodes in occurred without warning in the past 12 that Mr. Hickerson understands diabetes the last 5 years. His endocrinologist months and no recurrent (2 or more) management and monitoring, has stable certifies that Mr. Issler understands severe hypoglycemic episodes in the control of his diabetes using insulin, diabetes management and monitoring, last 5 years. His endocrinologist certifies and is able to drive a CMV safely. Mr. has stable control of his diabetes using that Mr. Kucharski understands diabetes Hickerson meets the requirements of the insulin, and is able to drive a CMV management and monitoring, has stable vision standard at 49 CFR 391.41(b)(10). safely. Mr. Issler meets the requirements control of his diabetes using insulin, His optometrist examined him in 2015 of the vision standard at 49 CFR and is able to drive a CMV safely. Mr. and certified that he does not have 391.41(b)(10). His optometrist examined Kucharski meets the requirements of the diabetic retinopathy. He holds an him in 2015 and certified that he does vision standard at 49 CFR 391.41(b)(10). operator’s license from California. not have diabetic retinopathy. He holds His ophthalmologist examined him in an operator’s license from New York. 2015 and certified that he has stable Timothy J. Hrinak nonproliferative diabetic retinopathy. Todd D. Jacquin Mr. Hrinak, 31, has had ITDM since He holds an operator’s license from 1994. His endocrinologist examined him Mr. Jacquin, 54, has had ITDM since Colorado. in 2015 and certified that he has had no 2000. His endocrinologist examined him severe hypoglycemic reactions resulting in 2015 and certified that he has had no Philip M. LaPierre in loss of consciousness, requiring the severe hypoglycemic reactions resulting Mr. LaPierre, 49, has had ITDM since assistance of another person, or in loss of consciousness, requiring the 1977. His endocrinologist examined him resulting in impaired cognitive function assistance of another person, or in 2015 and certified that he has had no that occurred without warning in the resulting in impaired cognitive function severe hypoglycemic reactions resulting past 12 months and no recurrent (2 or that occurred without warning in the in loss of consciousness, requiring the more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or assistance of another person, or the last 5 years. His endocrinologist more) severe hypoglycemic episodes in resulting in impaired cognitive function certifies that Mr. Hrinak understands the last 5 years. His endocrinologist that occurred without warning in the diabetes management and monitoring, certifies that Mr. Jacquin understands past 12 months and no recurrent (2 or has stable control of his diabetes using diabetes management and monitoring, more) severe hypoglycemic episodes in insulin, and is able to drive a CMV has stable control of his diabetes using the last 5 years. His endocrinologist safely. Mr. Hrinak meets the insulin, and is able to drive a CMV certifies that Mr. LaPierre understands requirements of the vision standard at safely. Mr. Jacquin meets the diabetes management and monitoring, 49 CFR 391.41(b)(10). His optometrist requirements of the vision standard at has stable control of his diabetes using examined him in 2015 and certified that 49 CFR 391.41(b)(10). His insulin, and is able to drive a CMV he does not have diabetic retinopathy. ophthalmologist examined him in 2015 safely. Mr. LaPierre meets the He holds an operator’s license from and certified that he does not have requirements of the vision standard at Pennsylvania. diabetic retinopathy. He holds an 49 CFR 391.41(b)(10). His optometrist operator’s license from North Carolina. examined him in 2015 and certified that Kevin M. Hunt he does not have diabetic retinopathy. Bruce E. Kerr Mr. Hunt, 31, has had ITDM since He holds a Class B CDL from Maine. 2015. His endocrinologist examined him Mr. Kerr, 59, has had ITDM since in 2015 and certified that he has had no 2013. His endocrinologist examined him Mary J. Martin severe hypoglycemic reactions resulting in 2015 and certified that he has had no Ms. Martin, 48, has had ITDM since in loss of consciousness, requiring the severe hypoglycemic reactions resulting 2014. Her endocrinologist examined her assistance of another person, or in loss of consciousness, requiring the in 2015 and certified that she has had resulting in impaired cognitive function assistance of another person, or no severe hypoglycemic reactions that occurred without warning in the resulting in impaired cognitive function resulting in loss of consciousness, past 12 months and no recurrent (2 or that occurred without warning in the requiring the assistance of another more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or person, or resulting in impaired the last 5 years. His endocrinologist more) severe hypoglycemic episodes in cognitive function that occurred without certifies that Mr. Hunt understands the last 5 years. His endocrinologist warning in the past 12 months and no diabetes management and monitoring, certifies that Mr. Kerr understands recurrent (2 or more) severe has stable control of his diabetes using diabetes management and monitoring, hypoglycemic episodes in the last 5 insulin, and is able to drive a CMV has stable control of his diabetes using years. Her endocrinologist certifies that safely. Mr. Hunt meets the requirements insulin, and is able to drive a CMV Ms. Martin understands diabetes

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management and monitoring has stable more) severe hypoglycemic episodes in assistance of another person, or control of her diabetes using insulin, the last 5 years. His endocrinologist resulting in impaired cognitive function and is able to drive a CMV safely. Ms. certifies that Mr. Morel understands that occurred without warning in the Martin meets the requirements of the diabetes management and monitoring, past 12 months and no recurrent (2 or vision standard at 49 CFR 391.41(b)(10). has stable control of his diabetes using more) severe hypoglycemic episodes in Her ophthalmologist examined her in insulin, and is able to drive a CMV the last 5 years. His endocrinologist 2015 and certified that she has stable safely. Mr. Morel meets the certifies that Mr. Pearce understands nonproliferative diabetic retinopathy. requirements of the vision standard at diabetes management and monitoring, She holds a Class B CDL from 49 CFR 391.41(b)(10). His optometrist has stable control of his diabetes using Pennsylvania. examined him in 2015 and certified that insulin, and is able to drive a CMV he does not have diabetic retinopathy. safely. Mr. Pearce meets the Peter J. Meier He holds a Class B CDL from New requirements of the vision standard at Mr. Meier, 43, has had ITDM since Hampshire. 49 CFR 391.41(b)(10). His optometrist 2012. His endocrinologist examined him examined him in 2015 and certified that Marvin K. Mosley in 2015 and certified that he has had no he does not have diabetic retinopathy. severe hypoglycemic reactions resulting Mr. Mosley, 49, has had ITDM since He holds an operator’s license from New in loss of consciousness, requiring the 2011. His endocrinologist examined him Mexico. assistance of another person, or in 2015 and certified that he has had no resulting in impaired cognitive function severe hypoglycemic reactions resulting George W. Pottle, IV that occurred without warning in the in loss of consciousness, requiring the Mr. Pottle, 55, has had ITDM since past 12 months and no recurrent (2 or assistance of another person, or 2013. His endocrinologist examined him more) severe hypoglycemic episodes in resulting in impaired cognitive function in 2015 and certified that he has had no the last 5 years. His endocrinologist that occurred without warning in the severe hypoglycemic reactions resulting certifies that Mr. Meier understands past 12 months and no recurrent (2 or in loss of consciousness, requiring the diabetes management and monitoring, more) severe hypoglycemic episodes in assistance of another person, or has stable control of his diabetes using the last 5 years. His endocrinologist resulting in impaired cognitive function insulin, and is able to drive a CMV certifies that Mr. Mosley understands that occurred without warning in the safely. Mr. Meier meets the diabetes management and monitoring, past 12 months and no recurrent (2 or requirements of the vision standard at has stable control of his diabetes using more) severe hypoglycemic episodes in 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV the last 5 years. His endocrinologist examined him in 2015 and certified that safely. Mr. Mosley meets the certifies that Mr. Pottle understands he does not have diabetic retinopathy. requirements of the vision standard at diabetes management and monitoring, He holds a Class A CDL from 49 CFR 391.41(b)(10). His optometrist has stable control of his diabetes using Washington. examined him in 2015 and certified that insulin, and is able to drive a CMV he does not have diabetic retinopathy. safely. Mr. Pottle meets the Terry J. Miller He holds an operator’s license from requirements of the vision standard at Mr. Miller, 59, has had ITDM since South Carolina. 49 CFR 391.41(b)(10). His 2015. His endocrinologist examined him ophthalmologist examined him in 2015 Eric Nieves, Jr. in 2015 and certified that he has had no and certified that he does not have severe hypoglycemic reactions resulting Mr. Nieves, 44, has had ITDM since diabetic retinopathy. He holds an in loss of consciousness, requiring the 2015. His endocrinologist examined him operator’s license from Maine. assistance of another person, or in 2015 and certified that he has had no resulting in impaired cognitive function severe hypoglycemic reactions resulting Kenneth A. Prine that occurred without warning in the in loss of consciousness, requiring the Mr. Prine, 57, has had ITDM since past 12 months and no recurrent (2 or assistance of another person, or 2002. His endocrinologist examined him more) severe hypoglycemic episodes in resulting in impaired cognitive function in 2015 and certified that he has had no the last 5 years. His endocrinologist that occurred without warning in the severe hypoglycemic reactions resulting certifies that Mr. Miller understands past 12 months and no recurrent (2 or in loss of consciousness, requiring the diabetes management and monitoring, more) severe hypoglycemic episodes in assistance of another person, or has stable control of his diabetes using the last 5 years. His endocrinologist resulting in impaired cognitive function insulin, and is able to drive a CMV certifies that Mr. Nieves understands that occurred without warning in the safely. Mr. Miller meets the diabetes management and monitoring, past 12 months and no recurrent (2 or requirements of the vision standard at has stable control of his diabetes using more) severe hypoglycemic episodes in 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV the last 5 years. His endocrinologist examined him in 2015 and certified that safely. Mr. Nieves meets the certifies that Mr. Prine understands he does not have diabetic retinopathy. requirements of the vision standard at diabetes management and monitoring, He holds a Class A CDL from 49 CFR 391.41(b)(10). His has stable control of his diabetes using Wisconsin. ophthalmologist examined him in 2015 insulin, and is able to drive a CMV and certified that he has stable safely. Mr. Prine meets the requirements Michael E. Morel nonproliferative diabetic retinopathy. of the vision standard at 49 CFR Mr. Morel, 59, has had ITDM since He holds an operator’s license from New 391.41(b)(10). His optometrist examined 2014. His endocrinologist examined him York. him in 2015 and certified that he does in 2015 and certified that he has had no not have diabetic retinopathy. He holds Jerry D. Pearce severe hypoglycemic reactions resulting a Class A CDL from Washington. in loss of consciousness, requiring the Mr. Pearce, 37, has had ITDM since assistance of another person, or 2012. His endocrinologist examined him Charles R. Ratcliff, Jr. resulting in impaired cognitive function in 2015 and certified that he has had no Mr. Ratcliff, 59, has had ITDM since that occurred without warning in the severe hypoglycemic reactions resulting 2012. His endocrinologist examined him past 12 months and no recurrent (2 or in loss of consciousness, requiring the in 2015 and certified that he has had no

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severe hypoglycemic reactions resulting in 2015 and certified that he has had no Scott J. Schmidt in loss of consciousness, requiring the severe hypoglycemic reactions resulting Mr. Schmidt, 49, has had ITDM since assistance of another person, or in loss of consciousness, requiring the 2015. His endocrinologist examined him resulting in impaired cognitive function assistance of another person, or in 2015 and certified that he has had no that occurred without warning in the resulting in impaired cognitive function severe hypoglycemic reactions resulting past 12 months and no recurrent (2 or that occurred without warning in the in loss of consciousness, requiring the more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or assistance of another person, or the last 5 years. His endocrinologist more) severe hypoglycemic episodes in resulting in impaired cognitive function certifies that Mr. Ratcliff understands the last 5 years. His endocrinologist that occurred without warning in the diabetes management and monitoring, certifies that Mr. Sanchez understands past 12 months and no recurrent (2 or has stable control of his diabetes using diabetes management and monitoring, more) severe hypoglycemic episodes in insulin, and is able to drive a CMV has stable control of his diabetes using the last 5 years. His endocrinologist safely. Mr. Ratcliff meets the insulin, and is able to drive a CMV certifies that Mr. Schmidt understands requirements of the vision standard at safely. Mr. Sanchez meets the diabetes management and monitoring, 49 CFR 391.41(b)(10). His optometrist requirements of the vision standard at has stable control of his diabetes using examined him in 2015 and certified that 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV he does not have diabetic retinopathy. examined him in 2015 and certified that He holds a Class A CDL from Virginia. safely. Mr. Schmidt meets the he does not have diabetic retinopathy. requirements of the vision standard at Joseph B. Ribitzki He holds a Class B CDL from California. 49 CFR 391.41(b)(10). His optometrist Mr. Ribitzki, 38, has had ITDM since Guido J. Scarafoni examined him in 2015 and certified that 2015. His endocrinologist examined him he does not have diabetic retinopathy. Mr. Scarafoni, 67, has had ITDM since in 2015 and certified that he has had no He holds a Class B CDL from Nebraska. 2009. His endocrinologist examined him severe hypoglycemic reactions resulting in 2015 and certified that he has had no Lori A. Shaffnit in loss of consciousness, requiring the severe hypoglycemic reactions resulting assistance of another person, or Ms. Shaffnit, 55, has had ITDM since in loss of consciousness, requiring the resulting in impaired cognitive function 2014. Her endocrinologist examined her assistance of another person, or that occurred without warning in the in 2015 and certified that she has had resulting in impaired cognitive function past 12 months and no recurrent (2 or no severe hypoglycemic reactions that occurred without warning in the more) severe hypoglycemic episodes in resulting in loss of consciousness, past 12 months and no recurrent (2 or the last 5 years. His endocrinologist requiring the assistance of another more) severe hypoglycemic episodes in certifies that Mr. Ribitzki understands person, or resulting in impaired the last 5 years. His endocrinologist diabetes management and monitoring, cognitive function that occurred without certifies that Mr. Scarafoni understands has stable control of his diabetes using warning in the past 12 months and no diabetes management and monitoring, insulin, and is able to drive a CMV recurrent (2 or more) severe has stable control of his diabetes using safely. Mr. Ribitzki meets the hypoglycemic episodes in the last 5 insulin, and is able to drive a CMV requirements of the vision standard at years. Her endocrinologist certifies that safely. Mr. Scarafoni meets the 49 CFR 391.41(b)(10). His Ms. Shaffnit understands diabetes requirements of the vision standard at ophthalmologist examined him in 2015 management and monitoring has stable 49 CFR 391.41(b)(10). His and certified that he does not have control of her diabetes using insulin, ophthalmologist examined him in 2015 diabetic retinopathy. He holds a Class A and is able to drive a CMV safely. Ms. and certified that he does not have CDL from Arkansas. Shaffnit meets the requirements of the diabetic retinopathy. He holds a Class B vision standard at 49 CFR 391.41(b)(10). Roger D. Richey CDL from Massachusetts. Her ophthalmologist examined her in Mr. Richey, 57, has had ITDM since Jeffrey M. Schleisman 2015 and certified that she does not 2015. His endocrinologist examined him have diabetic retinopathy. She holds a in 2015 and certified that he has had no Mr. Schleisman, 29, has had ITDM Class B CDL from Iowa. since 1992. His endocrinologist severe hypoglycemic reactions resulting Sanampreet Singh in loss of consciousness, requiring the examined him in 2015 and certified that assistance of another person, or he has had no severe hypoglycemic Mr. Singh, 22, has had ITDM since resulting in impaired cognitive function reactions resulting in loss of 2008. His endocrinologist examined him that occurred without warning in the consciousness, requiring the assistance in 2015 and certified that he has had no past 12 months and no recurrent (2 or of another person, or resulting in severe hypoglycemic reactions resulting more) severe hypoglycemic episodes in impaired cognitive function that in loss of consciousness, requiring the the last 5 years. His endocrinologist occurred without warning in the past 12 assistance of another person, or certifies that Mr. Richey understands months and no recurrent (2 or more) resulting in impaired cognitive function diabetes management and monitoring, severe hypoglycemic episodes in the that occurred without warning in the has stable control of his diabetes using last 5 years. His endocrinologist certifies past 12 months and no recurrent (2 or insulin, and is able to drive a CMV that Mr. Schleisman understands more) severe hypoglycemic episodes in safely. Mr. Richey meets the diabetes management and monitoring, the last 5 years. His endocrinologist requirements of the vision standard at has stable control of his diabetes using certifies that Mr. Singh understands 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV diabetes management and monitoring, examined him in 2015 and certified that safely. Mr. Schleisman meets the has stable control of his diabetes using he does not have diabetic retinopathy. requirements of the vision standard at insulin, and is able to drive a CMV He holds a Class A CDL from Indiana. 49 CFR 391.41(b)(10). His safely. Mr. Singh meets the ophthalmologist examined him in 2015 requirements of the vision standard at Michael G. Sanchez and certified that he has stable 49 CFR 391.41(b)(10). His optometrist Mr. Sanchez, 42, has had ITDM since proliferative diabetic retinopathy. He examined him in 2015 and certified that 2014. His endocrinologist examined him holds a Class A CDL from Iowa. he does not have diabetic retinopathy.

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He holds an operator’s license from examined him in 2015 and certified that safely. Mr. Trogdon meets the California. he has stable nonproliferative diabetic requirements of the vision standard at retinopathy. He holds an operator’s 49 CFR 391.41(b)(10). His optometrist Joshua A. Snyder license from Georgia. examined him in 2015 and certified that Mr. Snyder, 31, has had ITDM since he does not have diabetic retinopathy. Leonard Tawahongva 2013. His endocrinologist examined him He holds an operator’s license from in 2015 and certified that he has had no Mr. Tawahongva, 56, has had ITDM Idaho. severe hypoglycemic reactions resulting since 2015. His endocrinologist in loss of consciousness, requiring the examined him in 2015 and certified that Gregory S. Van Hal assistance of another person, or he has had no severe hypoglycemic Mr. Van Hal, 56, has had ITDM since resulting in impaired cognitive function reactions resulting in loss of 1977. His endocrinologist examined him that occurred without warning in the consciousness, requiring the assistance in 2015 and certified that he has had no past 12 months and no recurrent (2 or of another person, or resulting in severe hypoglycemic reactions resulting more) severe hypoglycemic episodes in impaired cognitive function that in loss of consciousness, requiring the the last 5 years. His endocrinologist occurred without warning in the past 12 assistance of another person, or certifies that Mr. Snyder understands months and no recurrent (2 or more) resulting in impaired cognitive function diabetes management and monitoring, severe hypoglycemic episodes in the that occurred without warning in the has stable control of his diabetes using last 5 years. His endocrinologist certifies past 12 months and no recurrent (2 or insulin, and is able to drive a CMV that Mr. Tawahongva understands more) severe hypoglycemic episodes in safely. Mr. Snyder meets the diabetes management and monitoring, the last 5 years. His endocrinologist requirements of the vision standard at has stable control of his diabetes using certifies that Mr. Van Hal understands 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV diabetes management and monitoring, examined him in 2015 and certified that safely. Mr. Tawahongva meets the has stable control of his diabetes using he does not have diabetic retinopathy. requirements of the vision standard at insulin, and is able to drive a CMV He holds a Class A CDL from West 49 CFR 391.41(b)(10). His optometrist safely. Mr. Van Hal meets the Virginia. examined him in 2015 and certified that requirements of the vision standard at he does not have diabetic retinopathy. 49 CFR 391.41(b)(10). His Christophe M. Stephens He holds an operator’s license from ophthalmologist examined him in 2015 Mr. Stephens, 43, has had ITDM since Arizona. and certified that he has stable 2014. His endocrinologist examined him proliferative diabetic retinopathy. He Edward M. Taylor in 2015 and certified that he has had no holds an operator’s license from severe hypoglycemic reactions resulting Mr. Taylor, 65, has had ITDM since Minnesota. in loss of consciousness, requiring the 2014. His endocrinologist examined him assistance of another person, or in 2015 and certified that he has had no Lazario R. Watkins resulting in impaired cognitive function severe hypoglycemic reactions resulting Mr. Watkins, 25, has had ITDM since that occurred without warning in the in loss of consciousness, requiring the 2011. His endocrinologist examined him past 12 months and no recurrent (2 or assistance of another person, or in 2015 and certified that he has had no more) severe hypoglycemic episodes in resulting in impaired cognitive function severe hypoglycemic reactions resulting the last 5 years. His endocrinologist that occurred without warning in the in loss of consciousness, requiring the certifies that Mr. Stephens understands past 12 months and no recurrent (2 or assistance of another person, or diabetes management and monitoring, more) severe hypoglycemic episodes in resulting in impaired cognitive function has stable control of his diabetes using the last 5 years. His endocrinologist that occurred without warning in the insulin, and is able to drive a CMV certifies that Mr. Taylor understands past 12 months and no recurrent (2 or safely. Mr. Stephens meets the diabetes management and monitoring, more) severe hypoglycemic episodes in requirements of the vision standard at has stable control of his diabetes using the last 5 years. His endocrinologist 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV certifies that Mr. Watkins understands examined him in 2015 and certified that safely. Mr. Taylor meets the diabetes management and monitoring, he does not have diabetic retinopathy. requirements of the vision standard at has stable control of his diabetes using He holds a Class A CDL from Tennessee. 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV examined him in 2015 and certified that safely. Mr. Watkins meets the Michael A. Stille he does not have diabetic retinopathy. requirements of the vision standard at Mr. Stille, 52, has had ITDM since He holds a Class A CDL from Nebraska. 49 CFR 391.41(b)(10). His optometrist 1991. His endocrinologist examined him examined him in 2015 and certified that Donald L. Trogdon in 2015 and certified that he has had no he does not have diabetic retinopathy. severe hypoglycemic reactions resulting Mr. Trogdon, 54, has had ITDM since He holds an operator’s license from in loss of consciousness, requiring the 2012. His endocrinologist examined him North Carolina. assistance of another person, or in 2015 and certified that he has had no resulting in impaired cognitive function severe hypoglycemic reactions resulting Eric J. Watson that occurred without warning in the in loss of consciousness, requiring the Mr. Watson, 27, has had ITDM since past 12 months and no recurrent (2 or assistance of another person, or 2014. His endocrinologist examined him more) severe hypoglycemic episodes in resulting in impaired cognitive function in 2015 and certified that he has had no the last 5 years. His endocrinologist that occurred without warning in the severe hypoglycemic reactions resulting certifies that Mr. Stille understands past 12 months and no recurrent (2 or in loss of consciousness, requiring the diabetes management and monitoring, more) severe hypoglycemic episodes in assistance of another person, or has stable control of his diabetes using the last 5 years. His endocrinologist resulting in impaired cognitive function insulin, and is able to drive a CMV certifies that Mr. Trogdon understands that occurred without warning in the safely. Mr. Stille meets the requirements diabetes management and monitoring, past 12 months and no recurrent (2 or of the vision standard at 49 CFR has stable control of his diabetes using more) severe hypoglycemic episodes in 391.41(b)(10). His ophthalmologist insulin, and is able to drive a CMV the last 5 years. His endocrinologist

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certifies that Mr. Watson understands FMCSA notes that section 4129 of the FMCSA–2015–0336 and click the search diabetes management and monitoring, Safe, Accountable, Flexible and button. When the new screen appears, has stable control of his diabetes using Efficient Transportation Equity Act: A click on the blue ‘‘Comment Now!’’ insulin, and is able to drive a CMV Legacy for Users requires the Secretary button on the right hand side of the safely. Mr. Watson meets the to revise its diabetes exemption program page. On the new page, enter requirements of the vision standard at established on September 3, 2003 (68 FR information required including the 49 CFR 391.41(b)(10). His optometrist 52441).1 The revision must provide for specific section of this document to examined him in 2015 and certified that individual assessment of drivers with which each comment applies, and he does not have diabetic retinopathy. diabetes mellitus, and be consistent provide a reason for each suggestion or He holds an operator’s license from New with the criteria described in section recommendation. If you submit your York. 4018 of the Transportation Equity Act comments by mail or hand delivery, for the 21st Century (49 U.S.C. 31305). submit them in an unbound format, no William T. White Section 4129 requires: (1) Elimination larger than 81⁄2 by 11 inches, suitable for Mr. White, 47, has had ITDM since of the requirement for 3 years of copying and electronic filing. If you 2012. His endocrinologist examined him experience operating CMVs while being submit comments by mail and would in 2015 and certified that he has had no treated with insulin; and (2) like to know that they reached the severe hypoglycemic reactions resulting establishment of a specified minimum facility, please enclose a stamped, self- in loss of consciousness, requiring the period of insulin use to demonstrate addressed postcard or envelope. assistance of another person, or stable control of diabetes before being We will consider all comments and resulting in impaired cognitive function allowed to operate a CMV. material received during the comment that occurred without warning in the In response to section 4129, FMCSA period and may change this proposed past 12 months and no recurrent (2 or made immediate revisions to the rule based on your comments. FMCSA more) severe hypoglycemic episodes in diabetes exemption program established may issue a final rule at any time after the last 5 years. His endocrinologist by the September 3, 2003 notice. the close of the comment period. certifies that Mr. White understands FMCSA discontinued use of the 3-year diabetes management and monitoring, driving experience and fulfilled the V. Viewing Comments and Documents has stable control of his diabetes using requirements of section 4129 while To view comments, as well as any insulin, and is able to drive a CMV continuing to ensure that operation of documents mentioned in this preamble, safely. Mr. White meets the CMVs by drivers with ITDM will To submit your comment online, go to requirements of the vision standard at achieve the requisite level of safety http://www.regulations.gov and in the 49 CFR 391.41(b)(10). His optometrist required of all exemptions granted search box insert the docket number examined him in 2015 and certified that under 49 U.S.C. 31136 (e). FMCSA–2015–0336 and click ‘‘Search.’’ he does not have diabetic retinopathy. Section 4129(d) also directed FMCSA Next, click ‘‘Open Docket Folder’’ and He holds a Class A CDL from to ensure that drivers of CMVs with you will find all documents and Washington. ITDM are not held to a higher standard comments related to the proposed than other drivers, with the exception of rulemaking. J. Ryan Wolf limited operating, monitoring and Dated: November 5, 2015. Mr. Wolf, 39, has had ITDM since medical requirements that are deemed Larry W. Minor, 2015. His endocrinologist examined him medically necessary. Associate Administrator for Policy. in 2015 and certified that he has had no The FMCSA concluded that all of the severe hypoglycemic reactions resulting operating, monitoring and medical [FR Doc. 2015–28740 Filed 11–10–15; 8:45 am] in loss of consciousness, requiring the requirements set out in the September 3, BILLING CODE 4910–EX–P assistance of another person, or 2003 notice, except as modified, were in compliance with section 4129(d). resulting in impaired cognitive function DEPARTMENT OF TRANSPORTATION that occurred without warning in the Therefore, all of the requirements set past 12 months and no recurrent (2 or out in the September 3, 2003 notice, Federal Railroad Administration more) severe hypoglycemic episodes in except as modified by the notice in the the last 5 years. His endocrinologist Federal Register on November 8, 2005 [Docket No. FRA–2012–0033] (70 FR 67777), remain in effect. certifies that Mr. Wolf understands Notice of Intent to Grant a Buy America diabetes management and monitoring, IV. Submitting Comments Waiver to the National Railroad has stable control of his diabetes using You may submit your comments and Passenger Corporation (Amtrak) for insulin, and is able to drive a CMV the Use of Eight (8) Non-Domestic safely. Mr. Wolf meets the requirements material online or by fax, mail, or hand delivery, but please use only one of Components in Tier III High-Speed Rail of the vision standard at 49 CFR Trainsets 391.41(b)(10). His ophthalmologist these means. FMCSA recommends that examined him in 2015 and certified that you include your name and a mailing AGENCY: Federal Railroad he does not have diabetic retinopathy. address, an email address, or a phone Administration (FRA), United States He holds an operator’s license from number in the body of your document Department of Transportation (DOT). Indiana. so that FMCSA can contact you if there ACTION: Notice of intent to grant Buy are questions regarding your America waiver. III. Request for Comments submission. In accordance with 49 U.S.C. 31136(e) To submit your comment online, go to SUMMARY: : FRA is issuing this notice to and 31315, FMCSA requests public http://www.regulations.gov and in the advise the public that it intends to grant comment from all interested persons on search box insert the docket number Amtrak a waiver from FRA’s Buy the exemption petitions described in America policy for the use of eight this notice. We will consider all 1 Section 4129(a) refers to the 2003 notice as a components of Tier III high-speed rail ‘‘final rule.’’ However, the 2003 notice did not issue (HSR) trainsets. comments received before the close of a ‘‘final rule’’ but did establish the procedures and business on the closing date indicated standards for issuing exemptions for drivers with DATES: Written comments on FRA’s in the date section of the notice. ITDM. determination to grant Amtrak’s Buy

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America waiver request should be (5) disc brake equipment; (6) tread brake domestic material will increase the cost provided to the FRA on or before equipment/tread cleaners; (7) brake of the overall project by more than 25 November 27, 2015. valves, and (8) parking brake units percent. ADDRESSES: Please submit your (collectively ‘‘Components’’). The total Amtrak seeks a waiver for the comments by one of the following estimated cost of the Components under following components of Tier III high- means, identifying your submissions by this waiver is $108.3 million, or 6.8 speed rail (HSR) trainsets: (1) docket number FRA–2012–0033. All percent of the estimated $1.6 billion Aluminum car body shells (shell electronic submissions must be made to cost for the 28 HSR trainsets and spare structure/frame-end, floor, roof, side); the U.S. Government electronic site at Components Amtrak will purchase. (2) Integrated cab/CEM structure; (3) http://www.regulations.gov. Amtrak is seeking a loan under FRA’s vehicle paint; (4) brake control unit; (5) Commenters should follow the Railroad Rehabilitation & Improvement disc brake equipment; (6) tread brake instructions below for mailed and hand- Financing (RRIF) loan program to equipment/tread cleaners; (7) brake delivered comments: finance its HSR trainset procurement. valves, and (8) parking brake units (1) Web site: http:// FRA believes a waiver is appropriate (Components). For the reasons www.regulations.gov. Follow the because domestically-produced HSR contained in this letter, FRA is granting instructions for submitting comments Components are not currently available Amtrak’s request. on the U.S. Government electronic in the United States, and even if they Although FRA is granting Amtrak’s docket site; could be produced in the United States, request for these eight (8) Components, (2) Fax: (202) 493–2251; they would not be delivered within a Amtrak’s HSR supplier or its contractors (3) Mail: U.S. Department of reasonable time. Although FRA is will manufacture the other 126 HSR Transportation, 1200 New Jersey granting Amtrak’s request for these components, or 94 percent of all Avenue SE., Docket Operations, M–30, Components, Amtrak’s HSR trainset components, in the United States. Room W12–140, Washington, DC supplier must assemble the HSR Amtrak estimates the total cost of the 20590–0001; or trainsets (other than two (2) prototypes Components under this waiver request (4) Hand Delivery: Room W12–140 on under a previous FRA waiver) in the is approximately 6.8 percent of the the first floor of the West Building, 1200 United States using Components and estimated $1.6 billion cost for the 28 New Jersey Avenue SE., Washington, the other 126 HSR components the HSR trainsets and spare Components DC 20590, between 9 a.m. and 5 p.m., supplier or its contractors will Amtrak will purchase. The cost by Monday through Friday, except Federal manufacture in United States. component per trainset is: holidays. The letter granting Amtrak’s request is Instructions: All submissions must Estimated cost quoted below: Component per trainset reference the ‘‘Federal Railroad Bernard F. Reynolds, Vice President— Administration’’ and include docket Procurement & Logistics, National (1) Aluminum car body shells number FRA–2012–0033. Due to Railroad Passenger Corporation, 60 (shell structure/frame-end, security procedures in effect since Massachusetts Ave NE., Washington, DC roof, side) ...... $2,960,000 October 2001, mail received through the 20002. (2) Integrated cab/CEM U.S. Postal Service may be subject to structure ...... $71,000 Re: Request for Waiver of Buy America (3) Vehicle paint ...... $78,000 delays. Parties making submissions Requirement for Components of responsive to this notice should (4) Brake control unit; (5) Next Generation Trainsets disc brake equipment; (6) consider using an express mail firm to Dear Mr. Reynolds: tread brake equipment/ ensure the prompt filing of any This letter is in response to your tread cleaners; (7) brake submissions not filed electronically or request dated November 3, 2014, that valves, and (8) parking by hand. Note that all submissions the Federal Railroad Administration brake units ...... $659,000 received, including any personal (FRA) grant the National Railroad information therein, will be posted Total per Trainset ...... $3,768,000 Passenger Corporation (Amtrak), a without change or alteration to http:// waiver from FRA’s Buy America policy www.regulations.gov. For more In July 2014, Amtrak issued a Request applicable to FRA’s Railroad information, you may review DOT’s for Proposal for its procurement of HSR Rehabilitation & Improvement complete Privacy Act Statement in the trainsets. In October 2014, Amtrak Financing (RRIF) loan program, which Federal Register published on April 11, received technical proposals from follows the requirements of 49 U.S.C. 2000 (65 FR 19477), or visit http:// manufacturers in response to its Request 24405(a). FRA’s Buy America www.regulations.gov. for Proposals. After reviewing the requirement for rolling stock, including proposals, Amtrak determined there FOR FURTHER INFORMATION CONTACT: Mr. HSR trainsets, requires domestic final were seven (7) Components of the John Johnson, Attorney-Advisor, FRA assembly of the trainsets and that all the trainsets’ 134 components that each Office of Chief Counsel, 1200 New components be manufactured in the manufacturer indicated it could not Jersey Avenue SE., Mail Stop 25, United States. source domestically. On November 3, Washington, DC 20590, (202) 493–0078, FRA may waive the Buy America 2014, Amtrak requested from the FRA a [email protected]. requirements if FRA finds that: (A) Buy America waiver for these seven (7) SUPPLEMENTARY INFORMATION: FRA is Applying the requirements would be components and the HSR trainset paint issuing this notice to advise the public inconsistent with the public interest; (B) (discussed in more detail below). that it intends to grant Amtrak a waiver the steel, iron, and goods manufactured Coordinating with FRA, in February from FRA’s Buy America policy for the in the United States are not produced in 2015 Amtrak engaged the Department of use of the following eight components sufficient and reasonably available Commerce’s National Institute of of Tier III high-speed rail (HSR) amounts or are not of a satisfactory Standards and Technology’s Hollings trainsets: (1) Aluminum car body shells quality; (C) rolling stock or power train Manufacturing Extension Partnership (shell structure/frame-end, floor, roof, equipment cannot be bought or (NIST–MEP) to scout for domestic side); (2) Integrated cab/CEM structure; delivered to the United States within a manufacturers of the Components. In its (3) vehicle paint; (4) brake control unit; reasonable time; or (D) including April 2015 report, NIST–MEP did not

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identify any suppliers making the exact timeline addresses current capacity for manufacturers to establish more HSR Components. NIST–MEP did identify a constraints on the Northeast Corridor factories in the United States, strengthen total of 23 potential suppliers that either and increasing demand for passenger the business case for a new domestic make products similar to the rail. Further Amtrak’s timeline meets HSR trainset industry to develop, Components or claim to have the FRA’s goal of establishing Tier III HSR 1 stimulate the domestic supply chain, capability to manufacture the in the United States as soon as possible. and bring new high quality jobs to the Components. FRA asked Amtrak to Amtrak wants the HSR trainsets to be in United States. As a result, FRA investigate whether any of the potential revenue service by 2018. To meet this concludes that none of the NIST–MEP suppliers could manufacture the date, the first body shell deliveries must identified suppliers could design, test, Components. After analyzing the NIST– arrive approximately seventeen (17) manufacture, and deliver the MEP report and Amtrak’s report months after notice to proceed, which is Components to meet Amtrak’s FRA- regarding follow-up discussions with scheduled for February 2016. Final supported timeline, which means they the potential suppliers, FRA finds that assembly and 126 of the 134 trainsets’ cannot deliver the Components within a none of the potential suppliers currently components will be manufactured in the reasonable time. manufacture the Components. United States. FRA believes that Here is a summary of FRA’s analysis FRA supports Amtrak’s required operational Tier III HSR in the United based on Amtrak’s and NIST–MEP’s procurement timeline because the States will increase the attractiveness outreach efforts:

Number of Component potential FRA findings suppliers

(1) Car body Shell ...... 12 • None of the 12 potential suppliers currently manufacture aluminum car body shells for passenger/HSR trains. • After learning more about the requirements of the project, 6 of 12 potential sup- pliers expressed that they are not interested in the opportunity. • For the remaining 6 potential suppliers, FRA found at least one of the following applied to each manufacturer. Æ inexperience working with aluminum. Æ no experience building passenger/HSR aluminum car bodies. Æ no relevant experience manufacturing aluminum car bodies; and/or. Æ have no equipment to manufacture larger extrusions necessary for HSR car body shell. • FRA estimates that it could take car body shell manufacturers a minimum of 18 to 24 months to establish the required facilities and techniques. As a result, FRA finds the remaining 6 potential suppliers not capable of manufacturing the car body shell within a reasonable time. (2) Integrated cab/CEM structure ...... 5 • None of the 5 potential suppliers currently manufacture CEM structures. • 3 of 5 potential suppliers were not interested in the opportunity after learning more about it. • For the remaining 2 potential suppliers, FRA found at least one of the following applied to each manufacturer. Æ no relevant experience manufacturing CEM structures; and/or Æ no experience building passenger/HSR CEM structures or similar relevant expe- rience fabricating aluminum CEM structures. FRA estimates it could take CEM structure manufacturers a minimum of 18 to 24 months to establish the required facilities and techniques. As a result, FRA finds the remaining 2 potential suppliers not capable of manufacturing the CEM struc- ture shell within a reasonable time. (3) Paint ...... 3 • As applied to all 3 potential suppliers. Æ Paint must be applied where car body shells are manufactured to protect against corrosion and oxidation while in transit to the U.S. Æ The requirements, including foreign environmental standards, for the trainsets’ paint would involve at least one year to develop the paint, have it tested and qualified for this particular use, and then exported. As a result, FRA finds that paint cannot be manufactured and delivered in a rea- sonable time. Brake System—(4) Brake Control Unit; 6 • For safety critical items such as the brake system, FRA believes the brake sys- (5) Disc Brake Equipment; (6) Tread tem and its components must be supplied by a single, service-proven supplier. Brake Equipment/Tread Cleaners; (7) Brake Valves, and (8) Parking Brake Units. • None of the 6 potential suppliers currently manufacture brake systems for HSR trains. • 5 of 6 potential suppliers have no experience manufacturing rail brake systems. Æ FRA finds that these 5 potential suppliers cannot supply the brake system. • 1 potential supplier is a major domestic brake system supplier that has experi- ence manufacturing other types of non-HSR passenger rail brake systems. Æ FRA estimates it would take at least two years to deliver a HSR brake system.

1 Tier III HSR trainsets are capable of traveling 220 miles per hour.

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Number of Component potential FRA findings suppliers

Æ FRA finds that the time to design, test, and manufacture a HSR brake system precludes this manufacturer from delivering the system in a reasonable time.

On November 20, 2014, FRA and exported in time to for use on the DEPARTMENT OF TRANSPORTATION published on its Web site public notice car shell components. Office of the Secretary of Amtrak’s waiver request. FRA • The National Institute of Standards received thirteen (13) online comments and Technology’s Hollings [Docket No. DOT–OST–2015–0194] to this notice. Only one of the Manufacturing Extension Partnership commenters identified a domestic (NIST–MEP) did not identify any Fast Track Generic Clearance for the source for any of the Components. The domestic manufacturer currently Collection of Qualitative Feedback on commenter asserted that the potential Agency Service Delivery supplier identified in the table above is producing the Components. a major domestic brake system supplier • Amtrak conducted extensive AGENCY: Office of the Secretary (OST), and is capable of providing the brake outreach with manufacturers NIST–MEP Department of Transportation (DOT). systems. However, as described above, identified as potential future ACTION: Notice and request for FRA has determined that brake systems manufacturers for the non-available comments. are not domestically available for HSR components. FRA agrees with Amtrak’s trainsets nor can the one potential assertion that even if any of the SUMMARY: In accordance with the supplier deliver a brake system within identified manufacturers would attempt Paperwork Reduction Act of 1995, the Department of Transportation’s (DOT) a reasonable time. Of the thirteen (13) to produce the Components Office of the Secretary (OST) announces comments, ten (10) commenters were in domestically, the Components could not favor of granting the waiver and three its plan to submit the Information be bought or produced in the United Collection Request (ICR) described were against granting the waiver. States within a reasonable time. Several of the ten (10) commenters in below to the Office of Management and favor of granting the waiver cited safety Pursuant to 49 U.S.C. 24405(a)(4), Budget (OMB) for its review and as their reason. Many commenters also FRA is publishing notice of its decision approval and invites public comment. asserted that granting the waiver would to grant Amtrak’s waiver request in the Executive Order 12862 directs Federal be necessary to establish HSR in the Federal Register to provide notice of agencies to provide service to the public United States and would lay a such finding and an opportunity for that matches or exceeds the best service foundation for future domestic HSR public comment after which this waiver available in the private sector. In order manufacturing. will become effective. This waiver to work continuously to ensure that our programs are effective and meet our The three commenters opposing the applies only to the HSR trainset customers’ needs, the Department of waiver argued that granting a waiver Components, including spares, for Transportation (DOT) seeks to obtain will lead to more waivers and that Amtrak’s HSR trainset procurement as OMB approval of a generic clearance to manufacturers could produce the HSR identified in its November 3, 2014 collect feedback on our service delivery. trainset components in the United waiver request. Moreover, excluding States. Though domestic production of assembly of prototype trainsets, which DATES: Comments on this notice must be the HSR trainset components for which have been addressed in a separate received by January 11, 2016. a waiver has been requested is waiver, the trainsets must be finally ADDRESSES: Your comments should be theoretically possible, FRA believes assembled in the United States, and all identified by Docket No. DOT–OST– significant safety, capacity, and other components that are not described 2015–0194 and may be submitted technology transfer problems would in this waiver must have been produced through one of the following methods: • result. Moreover, the delays to overcome in the United States or be the subject of Federal eRulemaking Portal: http:// these issues would negatively impact a future waiver. www.regulations.gov. Follow the online the schedules proposed by Amtrak. instructions for submitting comments. Questions about this letter can be • FRA believes a waiver is appropriate Fax: 1–202–493–2251. directed to, John Johnson, Attorney- • because the Components are not Mail or Hand Delivery: Docket Advisor, at [email protected] or manufactured in the United States and Management Facility, U.S. Department 202–493–0078. because domestically-produced of Transportation, 1200 New Jersey Components meeting the specific safety/ Sincerely, Avenue SE., West Building, Room W12– service-proven, technical, design, and 140, Washington, DC 20590, between 9 Sarah Feinberg schedule needs of Amtrak cannot be a.m. and 5 p.m., Monday through delivered within a reasonable time. FRA Administrator Friday, except on Federal holidays. All written comments will be bases its determination on the Sarah L. Inderbitzin, following: available for public inspection on Acting Chief Counsel. • All of Amtrak’s bidders Regulations.gov. [FR Doc. 2015–28708 Filed 11–10–15; 8:45 am] independently indicated in their FOR FURTHER INFORMATION CONTACT: responses to Amtrak’s Request for BILLING CODE 4910–06–P Habib Azarsina, Office of the Chief Proposal that the Components, other Information Officer, Office of the than vehicle paint, could not be sourced Secretary, U.S. Department of domestically. As noted above, the paint Transportation, 1200 New Jersey may be able to be manufactured Avenue SE., Washington, DC 20590, domestically but cannot be produced 202–366–1965 (Voice), 202–366–7870

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(Fax), or [email protected] This type of generic clearance for DATES: Please submit comments by (Email). qualitative information will not be used January 12, 2016. SUPPLEMENTARY INFORMATION: for quantitative information collections ADDRESSES: You may submit comments Title: Fast Track Generic Clearance for that are designed to yield reliably [identified by Docket No. DOT–OST– the Collection of Qualitative Feedback actionable results, such as monitoring 2015–0221] through one of the on Agency Service Delivery. trends over time or documenting following methods: • Abstract: The information collection program performance. Such data uses Federal eRulemaking Portal: Go to activity will garner qualitative customer require more rigorous designs that http://www.regulations.gov. Follow the and stakeholder feedback in an efficient, address: The target population to which online instructions for submitting timely manner, in accordance with the generalizations will be made, the comments. sampling frame, the sample design • Fax: 202–493–2251. Department’s commitment to improving • service delivery. By qualitative feedback (including stratification and clustering), Mail or Hand Delivery: U.S. we mean information that provides the precision requirements or power Department of Transportation, Dockets useful insights on perceptions and calculations that justify the proposed Management Facility, 1200 New Jersey opinions, but are not statistical surveys sample size, the expected response rate, Avenue SE., West Building, Room W12– methods for assessing potential 140, Washington, DC 20590. that yield quantitative results that can • be generalized to the population of nonresponse bias, the protocols for data Agency Web site: http:// study. This feedback will provide collection, and any testing procedures www.regulations.gov. insight into customer or stakeholder that were or will be undertaken prior to FOR FURTHER INFORMATION CONTACT: perceptions, opinions, experiences and fielding the study. Depending on the Michelle Harris, 202–366–1930 ext. expectations, provide an early warning degree of influence the results are likely 62253, Office of Small and of issues with service, or focus attention to have, such collections may still be Disadvantaged Business Utilization, on areas where communication, training eligible for submission for other generic Office ofthe Secretary, U.S. Department or changes in operations might improve mechanisms that are designed to yield of Transportation, 1200 New Jersey delivery of products or services. These quantitative results. Avenue SE., Room W56–444, collections will allow for ongoing, Type of Review: New Washington, DC 20590. Office hours are collaborative and actionable Affected Public: Individuals and from 9:00 a.m. to 5:00p.m., Monday communications between the households, businesses and through Friday, except Federal holidays. Department of Transportation and its organizations, State, Local or Tribal SUPPLEMENTARY INFORMATION: customers and stakeholders. It will also Governments. Title: SBTRC Regional Field Offices allow feedback to contribute directly to Estimated Number of Respondents: Intake Form (DOT F 4500). the improvement of program 6,000. OMB Control Number: 2105–0554. management. Feedback or information Estimated Annual Responses: 2,000. Background: In accordance with collected under this generic clearance Estimated Annual Burden Hours: Public Law 95–507, an amendment to will provide useful information, but it 2,000 hours. the Small Business Act and the Small will not yield data that can be Frequency: One-time requirement. Business Investment Act of 1953, generalized to the overall population. Issued in Washington, DC, on November 3, OSDBU is responsible for the The Department will submit a 2015. implementation and execution of DOT collection for approval under this Patricia Lawton, activities on behalf of small businesses, generic clearance if it meets the DOT Paperwork Reduction Act Clearance in accordance with Section 8, 15 and 31 following conditions: Officer, Office of the Chief Information of the Small Business Act (SBA), as • The collections are voluntary. Officer. amended. The Office of Small and • The collections are low-burden for [FR Doc. 2015–28716 Filed 11–10–15; 8:45 am] Disadvantaged Business Utilization also respondents (based on considerations of BILLING CODE 4910–9X–P administers the provisions of Title 49, of total burden hours, total number of the United States Cole, Section 332, the respondents, or burden-hours per Minority Resource Center (MRC) which respondent) and are low-cost for both DEPARTMENT OF TRANSPORTATION includes the duties of advocacy, the respondents and the Federal outreach, and financial services on Government. Office of the Secretary behalf of small and disadvantaged • The collections are businesses and those certified under noncontroversial and do not raise issues [Docket No. DOT–OST–2015–0221] CFR 49 parts 23 and or 26 as of concern to other Federal agencies. Disadvantaged Business Enterprises • 60-Day Notice of Request for Renewal Any collection is targeted to the of a Previously Approved Collection (DBE). solicitation of opinions from SBTRC’s Regional Field Offices will respondents who have experience with AGENCY: Office of the Secretary (OST), collect information on small businesses, the program or may have experience Department of Transportation which includes Disadvantaged Business with the program in the near future. (Department) or (DOT). Enterprise (DBE), Women-Owned Small • Personally identifiable information ACTION: Notice and requests for Business (WOB), Small Disadvantaged (PII) is collected only to the extent comments. Business (SDB), 8(a), Service Disabled necessary and is not retained. Veteran Owned Business (SDVOB), • Information gathered is intended to SUMMARY: The OSDBU invites public Veteran Owned Small Business (VOSB), be used only internally for general comments about our intention to request HubZone, and types of services they service improvement and program the Office of Management and Budget’s seek from the Regional Field Offices. management purposes and is not (OMB) approval to renew an Services and responsibilities of the intended for release outside of the information collection. The collection Field Offices include business analysis, Department (if released, the Department involves the following form with an general management & technical must indicate the qualitative nature of expiration date of 2/29/2016, and is assistance and training, business the information). presently in use. counseling, outreach services/

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conference participation, short-term enhance the quality, utility and clarity SUPPLEMENTARY INFORMATION: loan and bond assistance. The of the information collection; and (d) Title: Supporting Statement of cumulative data collected will be ways to minimize the burden of the Ownership for Overdue United States analyzed by the OSDBU to determine collection of information on Bearer Securities the effectiveness of services provided, respondents, by the use of electronic including counseling, outreach, and means, including the use of automated OMB Number: 1530–0045 (Previously financial services. Such data will also be collection techniques or other forms of approved as 1535–0102 as a collection analyzed by the OSDBU to determine information technology. The agency will conducted by Department of the agency effectiveness in assisting small summarize and/or include your Treasury/Bureau of the Public Debt.) businesses to enhance their comments in the request for OMB’s Transfer of OMB Control Number: The opportunities to participate in clearance of this information collection. Bureau of Public Debt (BPD) and the government contracts and subcontracts. Authority: The Paperwork Reduction Act Financial Management Service (FMS) We are required to publish this notice of 1995; 44 U.S.C. Chapter 35, as amended; have consolidated to become the Bureau in the Federal Register by the and 49 CFR 1:48. of the Fiscal Service (Fiscal Service). Paperwork Reduction Act of 1995, Issued in Washington, DC, on November 5, Information collection requests Public Law 104–13. 2015. Title: Small Business Transportation previously held separately by BPD and Resource Center Regional Field Office Michelle Harris, FMS will now be identified by a 1530 Intake Form (DOT F 4500). Manager, Regional Assistance Division, Office prefix, designating Fiscal Service. Form Numbers: DOT F 4500. of Small and Disadvantaged, Business Form Numbers: FS Form 1071. Utilization. Type of Review: Renewal of an Abstract: The information is information collection. [FR Doc. 2015–28714 Filed 11–10–15; 8:45 am] requested to establish ownership and The Regional Field Offices Intake BILLING CODE 4910–9X–P Form, (DOT F 4500) is used to enroll support a request for payment. small business clients into the program Current Actions: Revision of a in order to create a viable database of DEPARTMENT OF THE TREASURY previously approved collection. firms that can participate in government Type of Review: Regular. contracts and subcontracts, especially Bureau of the Fiscal Service those projects that are transportation Affected Public: Households and Proposed Collection of Information: related. Each area on the fillable pdf Individuals or Private Sector. Supporting Statement of Ownership form must be filled in electronically by Estimated Number of Respondents: for Overdue United States Bearer the Field Offices and submitted every 800. Securities quarter to OSDBU. The Offices will Estimated Time per Respondent: 15 retain a copy of each Intake Form for ACTION: Notice and request for minutes. their records. The completion of the comments. form is used as a tool for making Estimated Total Annual Burden decisions about the needs of the SUMMARY: The Department of the Hours: 200. business, such as; referral to technical Treasury, as part of its continuing effort Request for Comments: Comments assistance agencies for help, identifying to reduce paperwork and respondent submitted in response to this notice will the type of profession or trade of the burden, invites the general public and be summarized and/or included in the business, the type of certification that other Federal agencies to take this request for OMB approval. All the business holds, length of time in opportunity to comment on a proposed comments will become a matter of business, and location of the firm. This and/or continuing information public record. Comments are invited on: data can assist the Field Offices in collection, as required by the Paperwork (a) Whether the collection of developing a business plan or adjusting Reduction Act of 1995, Public Law 104– information is necessary for the proper their business plan to increase its ability 13 (44 U.S.C. 3506(c)(2)(A)). Currently performance of the functions of the to market its goods and services to the Bureau of the Fiscal Service within agency, including whether the the Department of the Treasury is buyers and potential users of their information shall have practical utility; services. soliciting comments concerning the (b) the accuracy of the agency’s estimate Respondents: SBTRC Regional Field Supporting Statement of Ownership for Offices. Overdue United States Bearer of the burden of the collection of Estimated Number of Respondents: Securities. information; (c) ways to enhance the 100. quality, utility, and clarity of the DATES: Written comments should be Frequency: The information will be information to be collected; (d) ways to received on or before January 11, 2016 collected quarterly. minimize the burden of the collection of Estimated Number of Responses: 100. to be assured of consideration. information on respondents, including Estimated Total Annual Burden on ADDRESSES: Direct all written comments through the use of automated collection Respondents: 600 hours per year. and requests for further information to techniques or other forms of information Public Comments Invited: You are Bureau of the Fiscal Service, Bruce A. technology; and (e) estimates of capital asked to comment on any aspect of this Sharp, 200 Third Street A4–A, or start-up costs and costs of operation, Parkersburg, WV 26106–1328, or information collection, including (a) maintenance, and purchase of services [email protected]. Whether the proposed collection of to provide information. information is necessary for the proper FOR FURTHER INFORMATION CONTACT: performance of the functions of the Requests for additional information or Dated: November 5, 2015. Department, including whether the copies of the form(s) and instructions Bruce A. Sharp, information will have practical utility; should be directed to Ron Lewis; 200 Bureau Clearance Officer. (b) the accuracy of the Department’s Third Street Room 515, Parkersburg, [FR Doc. 2015–28596 Filed 11–10–15; 8:45 am] estimate of the burden of the proposed WV 26106–1328, or ron.lewis@ BILLING CODE 4810–AS–P information collection; (c) ways to fiscal.treasury.gov.

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DEPARTMENT OF THE TREASURY Beirut, Lebanon; Own Building, Main Lebanon [SDGT] (Linked To: ZEAITER, Street, Kfar Kila, Lebanon; DOB 01 Apr Ali). Office of Foreign Assets Control 1961; POB Kafr Kila, Lebanon; Dated: November 5, 2015. nationality Lebanon; Gender Male; John E. Smith, Sanctions Actions Pursuant to Passport RL0962973 (Lebanon) Executive Orders 13224 Acting Director, Office of Foreign Assets (individual) [SDGT] (Linked To: Control. HIZBALLAH). AGENCY: Office of Foreign Assets [FR Doc. 2015–28702 Filed 11–10–15; 8:45 am] 2. CHERRI, Adel Mohamad (a.k.a. Control, Treasury. BILLING CODE 4810–AL–P ACTION: Notice. CHERRI, Adel Mohammad; a.k.a. SHIRRI, ’Adil), Suite 15A, Mingshang SUMMARY: The Treasury Department’s GE Shenganghao Yuan Building, Bao An Office of Foreign Assets Control (OFAC) Nan Road, Luohu District, Shenzhen, DEPARTMENT OF VETERANS is publishing the names of two Guangdong, China; 1/F, Bei Fang AFFAIRS individuals and four entities whose Building, Shennan Zhong Road, Advisory Committee on Former property and interests in property are Shenzhen, Guangdong, China; Flat/ Prisoners of War; Notice of Meeting blocked pursuant to Executive Order Room 1610, Nan Fung Tower, 173 Des 13224 of September 23, 2001, ‘‘Blocking Voeux Road Central, Hong Kong; Cherri The Department of Veterans Affairs Property and Prohibiting Transactions Building, Main Street, Beer Al Salasel, (VA) gives notice under the Federal With Persons Who Commit, Threaten To Kherbet Selem, Nabatieh, Lebanon; DOB Advisory Committee Act, 5 U.S.C., Commit, or Support Terrorism.’’ 03 Oct 1963; POB Beirut, Lebanon; App.2, that the Advisory Committee on DATES: OFAC’s actions described in this Gender Male; Passport RL2566575 Former Prisoners of War (FPOW) will notice are effective on November 5, (Lebanon) expires 03 Jul 2018 meet on January 11–13, 2016. The first 2015. (individual) [SDGT] (Linked To: two meetings will be held on January HIZBALLAH). FOR FURTHER INFORMATION CONTACT: 11–12 from 9:00 a.m. to 4:00 p.m. at the Associate Director for Global Targeting, Entities Audie Murphy VA Medical Center, 7400 tel.: 202/622–2420, Assistant Director Merton Minter BLVD, San Antonio, TX. 3. VATECH SARL (a.k.a. VATECH; for Sanctions Compliance & Evaluation, The third meeting will be held on a.k.a. VATECH LEBANON; a.k.a. tel.: 202/622–2490, Assistant Director January 13 from 9:00 a.m. to 12:00 p.m. VATECH VIDEO AND PRO AUDIO), for Licensing, tel.: 202/622–2480, Office at the Courtyard Marriott, 8585 Marriott P.O. Box 14–5728, Jishi Building, Salim of Foreign Assets Control, or Chief Dr., San Antonio, TX. Slam Street, Mazraa, Beirut, Lebanon; Counsel (Foreign Assets Control), tel.: The purpose of the Committee is to P.O. Box 14–5728, Borj al Salam 202/622–2410, Office of the General advise the Secretary of Veterans Affairs Building, Salim Slam Street, Beirut, Counsel, Department of the Treasury on the administration of benefits under Lebanon; Jaafar Building, Mazraa Street, (not toll free numbers). Title 38, United States Code, for Beirut, Lebanon; Jaafar Building, Veterans who are former prisoners of SUPPLEMENTARY INFORMATION: Moseitbi Street, Beirut, Lebanon; Jaafar war, and to make recommendations on Electronic and Facsimile Availability Building, Salim Slam Street, Mazraa, the needs of such Veterans for Beirut, Lebanon; Jishi Building, Mazraa The SDN List and additional compensation, health care, and Street, Beirut, Lebanon; Web site information concerning OFAC sanctions rehabilitation. www.vatech.com.lb [SDGT] (Linked To: programs are available from OFAC’s The Committee will hear from its SERHAN, Fadi Hussein). Web site (www.treasury.gov/ofac). Chairman. The Committee will also Certain general information pertaining 4. LE–HUA ELECTRONIC FIELD CO. receive briefings by representatives from to OFAC’s sanctions programs is also LIMITED (a.k.a. LE–HUA ELEC F CO. Veterans Benefits Administration and available via facsimile through a 24- LTD), Room B, 5/F, Building 2, Guilong Veterans Health Administration. On hour fax-on-demand service, tel.: 202/ Jiayuan Gui Yuan North Road, Guiyuan Monday, January 11 from 9:00 a.m. to 622–0077. Neighborhood St Office, Luohu District, 11:00 a.m., the Committee will meet in Shenzhen, Guangdong, China; 15th open session. From 11:00 a.m. to 12:00 Notice of OFAC Actions Floor, Ming Shang Ge Building, Bao’an p.m., the Committee will convene a On November 5, 2015, OFAC blocked Street, Luo Hu Area, Shenzhen, closed session in order to protect patient the property and interests in property of Guangdong, China; Flat/Room 1610, privacy as the Committee tours the VA the following two individuals and four Nan Fung Tower, 173 Des Voeux Road Medical Center. 5 U.S.C. 552b(c)(6). In entities pursuant to E.O. 13224, Central, Hong Kong [SDGT] (Linked To: the afternoon from 1:00 p.m. to 4:00 ‘‘Blocking Property and Prohibiting CHERRI, Adel Mohamad). p.m., the Committee will reconvene in Transactions With Persons Who 5. AERO SKYONE CO. LIMITED open session. On Tuesday, January 12, Commit, Threaten To Commit, or (a.k.a. AERO SKY ONE LTD; a.k.a. the Committee will convene in an open Support Terrorism’’: AEROSKYONE CO. LTD), Tianhe Qu, session. At 3:30 p.m., the Committee Tianhe Bei Lu, 255 Hao, 1606 Fang, will host an open public forum and Individuals Guangzhou, China; Room 1501 (340), FPOW panel to gain information from 1. SERHAN, Fadi Hussein (a.k.a. 15/F, SPA Center, 53–55 Lockhart Road, FPOWs about their experiences, issues, SARHAN, Fadi Husayn; a.k.a. SIRHAN, Wan Chai, Hong Kong; Room 1501 and recommendations for health Fadi), Own Building, Kanisat (340), Lockhart, Wan Chai, Hong Kong; benefits and claims processing. Marmkhael, Saliba Street, Corniche, Al- Web site www.aerskyone.com [SDGT] Participation is limited to FPOWs. On Mazraa, Beirut, Lebanon; Jaafar (Linked To: ZEAITER, Ali). January 13, the Committee will convene Building, Mazraa Street, Beirut, 6. LABICO SAL OFFSHORE (a.k.a. in open session. The Committee will Lebanon; Jaafar Building, Mseytbi LABICO SAL (OFF SHORE)), Bou draft the beginning of their 2016 Street, Beirut, Lebanon; Jaafar Building, Ghannam Building, Azhar Street, Kobbe recommendations and decide the Salim Slam Street, Beirut, Lebanon; Doha, Aramoun, Aaley, Lebanon; Labico location of their next meeting in the Jishi Building, Salim Slam Street, Building, Azhar Street, Aramoun, Aaley, spring.

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Former Prisoners of War who wish to Services, Veterans Economic PRA submission describes the nature of speak at the public forum are invited to Community Initiative, Women’s Health the information collection and its submit a 1–2 page summary of their Services, Office of Rural Health, expected cost and burden and includes comments at the end of the meeting for Veterans Health Administration (VHA), the actual data collection instrument. inclusion in the official meeting record. and Homeless Programs. On December DATES: Comments must be submitted on Members of the public may also submit 3, the Committee will receive a briefing or before December 14, 2015. written statements for the Committee’s and update on Office of Diversity & ADDRESSES: Submit written comments review to Mr. Eric Robinson, Designated Inclusion, Ex-Officios Update and hold on the collection of information through Federal Officer, Advisory Committee on an exit briefing with VBA, VHA and www.Regulations.gov, or to Office of Former Prisoners of War, (and Program NCA. The Committee will receive Information and Regulatory Affairs, Analyst Compensation Service), public comments from 10:00 a.m. to Office of Management and Budget, Attn: Department of Veterans Affairs, 810 10:15 a.m. After public comments, the VA Desk Officer; 725 17th St. NW., Vermont Avenue NW., (212), Committee will continue to work on Washington, DC 20503 or sent through Washington, DC 20420, or via email at their report. electronic mail to oira_submission@ [email protected]. Any member of A sign-in sheet for those who want to omb.eop.gov. Please refer to ‘‘OMB the public seeking additional give comments will be available at the Control No. 2900–0002’’ in any information should contact Mr. meeting. Individuals who speak are correspondence. Robinson via email or call (202) 443– invited to submit a 1–2 page summaries 6016. of their comments at the time of the FOR FURTHER INFORMATION CONTACT: Dated: November 6, 2015. meeting for inclusion in the official Crystal Rennie, Enterprise Records Jelessa Burney, meeting record. Members of the public Service (005R1B), Department of Federal Advisory Committee Management may also submit written statements for Veterans Affairs, 810 Vermont Avenue Officer. the Committee’s review to Ms. Juanita NW., Washington, DC 20420, (202) 632– [FR Doc. 2015–28725 Filed 11–10–15; 8:45 am] Mullen, Department of Veterans Affairs, 7492 or email [email protected]. Please refer to ‘‘OMB Control No. 2900– BILLING CODE P Center for Minority Veterans (00M), 810 Vermont Avenue NW., Washington, DC 0002’’ in any correspondence. 20420, or email at SUPPLEMENTARY INFORMATION: DEPARTMENT OF VETERANS [email protected]. Because the Title: Statement of Accredited AFFAIRS meeting will be in a Government Representative in Appealed Case. building, anyone attending must be OMB Control Number: 2900–0002. Advisory Committee on Minority prepared to show a valid photo ID for Type of Review: Extension of a Veterans, Notice of Meeting checking in. Please allow 15 minutes currently approved collection. Abstract: A recognized organization, The Department of Veterans Affairs before the meeting begins for this attorney, agent, or other authorized (VA) gives notice under the Federal process. Any member of the public person representing VA claimants Advisory Committee Act, 5 U.S.C. App. wishing to attend or seeking additional before the Board of Veterans’ Appeals 2 that the Advisory Committee on information should contact Ms. Mullen complete VA Form 646 to provide Minority Veterans will meet on or Ms. Denise Wright at (202) 461–6191 identifying data describing the basis for December 1–3, 2015, at the Department or by fax at (202) 273–7092. their claimant’s disagreement with the of Veterans Affairs, 810 Vermont Dated: November 6, 2015. denial of VA benefits. VA uses the data Avenue NW., Conference Room 230, Jelessa Burney, collected to identify the issues in Washington, DC. On December 1st and Federal Advisory Committee Management dispute and to prepare a decision 2nd, the sessions will begin at 8:00 a.m. Officer. responsive to the claimant’s and end at 5:00 p.m. On December 3rd, [FR Doc. 2015–28724 Filed 11–10–15; 8:45 am] disagreement. the session will reconvene at 8:00 a.m. BILLING CODE P An agency may not conduct or and adjourn at 1:00 p.m. This meeting sponsor, and a person is not required to is open to the public. respond to a collection of information The purposes of the Committee are to: DEPARTMENT OF VETERANS unless it displays a currently valid OMB advise the Secretary on the AFFAIRS administration of VA benefits and control number. The Federal Register services to minority Veterans; assess the [OMB Control No. 2900–0002] Notice with a 60-day comment period needs of minority Veterans; and soliciting comments on this collection Agency Information Collection of information was published at 80 FR evaluate whether VA compensation, (Statement of Accredited medical and rehabilitation services, 48138 on August 7, 2015. Representative in Appealed Case) Affected Public: Individuals or outreach, and other programs are Under OMB Review households. meeting those needs. The Committee Estimated Annual Burden: 50,286. makes recommendations to the AGENCY: Board of Veterans’ Appeals, Estimated Average Burden per Secretary regarding such activities. Department of Veterans Affairs. On December 1, the Committee will Respondent: 1 hour. ACTION: Notice. Frequency of Response: On occasion. receive briefings and updates from the Estimated Number of Respondents: Center for Minority Veterans, Office of SUMMARY: In compliance with the 50,286. Health Equity, National Center for Paperwork Reduction Act (PRA) of 1995 Veterans Analysis, Office of Tribal (44 U.S.C. 3501–3521), this notice By direction of the Secretary. Government Relations (OTGR), MyVA announces that the Board of Veterans’ Kathleen M. Manwell, Initiative, and Veterans Benefits Appeals (BVA), Department of Veterans Program Analyst, VA Privacy Service, Office Administration. On December 2, the Affairs, will submit the collection of of Privacy and Records Management, Committee will receive briefings and information abstracted below to the Department of Veterans Affairs. updates on the National Cemetery Office of Management and Budget [FR Doc. 2015–28615 Filed 11–10–15; 8:45 am] Administration (NCA), Mental Health (OMB) for review and comment. The BILLING CODE 8320–01–P

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Part II

Department of Justice

Drug and Enforcement Administration Perry County Food & Drug Decision and Order; Notice

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DEPARTMENT OF JUSTICE the record, and that he sent his letter ‘‘in drug) to A.R. without a prescription. an abundance of caution due to [his] Stipulation 13. Additional record Drug Enforcement Administration misunderstanding of the purpose of ’’ evidence shows that on nine occasions [Docket No. 15–10] the CALJ’s letter, as he ‘‘did not want between June 18, 2014 and December the fact that [he] had not filed any 29, 2014, Respondent dispensed Perry County Food & Drug Decision exceptions . . . to preclude’’ this Office controlled substances including and Order from ‘‘perform[ing] an independent hydrocodone and oxycodone (also a review of the record and Decision.’’ Id. schedule II drug) to A.R. listing a dentist On May 13, 2015, Chief at 1–2. (Dr. Hambuchen) as the prescriber. GX Administrative Law Judge (CALJ) John J. Taking Respondent’s Counsel at his 4. However, Dr. Hambuchen denied Mulrooney, Jr., issued the attached word, I do not consider the filing knowing A.R. (GX 3) and testified to this Recommended Decision (hereinafter, submitted on July 8, 2015. However, in in the proceeding. Tr. 23. The parties 1 cited as R.D. ). Thereafter, on June 15, reviewing the record, I have considered further stipulated that Dr. Hambuchen 2015, the CALJ forwarded the record to the ‘‘Closing Brief ’’ Respondent’s never issued a prescription for A.R. ALJ this Office for Final Agency Action Counsel submitted on April 27, 2015, Ex. 15, at 4. Each of these acts noting that neither party had filed following the conclusion of the constitutes an outright drug deal in exceptions to the Recommended evidentiary phase of the proceeding. violation of 21 U.S.C. 841(a)(1), which Decision. See 21 CFR 1316.66 Having considered the entire record provides that ‘‘[e]xcept as authorized by (providing a party with the right to file in this matter, I have decided to adopt this subchapter, it shall be unlawful for exceptions to an ALJ’s decision the factual findings of the any person knowingly or intentionally ‘‘[w]ithin twenty days after the date Recommended Decision except as . . . to distribute[ ] or dispense . . . a 2 upon which [it] is served [with] a discussed below. I also adopt but controlled substance[.]’’). See also id. copy’’). modify the CALJ’s legal conclusions as § 842(a)(1) (‘‘It shall be unlawful for any 3 Subsequently, on July 8, 2015, discussed below. Because I agree with person . . . who is subject to the Respondent filed with this Office a the CALJ’s conclusion that Respondent’s requirements of part C to distribute or pleading entitled as its ‘‘Closing Brief.’’ evidence as to its acceptance of dispense a controlled substance in In a letter accompanying the filing, responsibility and remedial measures is violation of section 829 of this title[.]’’); Respondent’s counsel explained that the not persuasive, I further adopt the id. § 829(a).5 Recommended Decision had been CALJ’s Recommendation to the extent (2) A. Dispensing hydrocodone and mailed to his former address and that he that it recommends that I deny any alprazolam to Ms. Samantha Pemberton, had recently changed his address and pending application to renew its who the evidence shows was Chris 4 had ‘‘only recently received’’ the CALJ’s registration. Watson’s girlfriend, on November 19, In this matter Respondent stipulated Recommended Decision. Letter of 2014, without a prescription for either (and other evidence shows) that its Respondent’s Counsel to Acting Deputy drug. Stipulation 19. For the same Pharmacist-in-Charge, Chris Watson, Administrator, DEA (July 8, 2015). reasons as described above, these Upon reviewing the letter, I noted that who is also the son of its owner Tom dispensings also constitute violations of while Respondent’s Counsel had Watson, committed multiple acts 21 U.S.C. 841(a)(1). See also 21 U.S.C. explained that he had only recently resulting in the diversion of controlled 842(a)(1); id. § 829(b).6 received the Recommended Decision substances. These include: B. The evidence also shows that on because it had been mailed to his former (1) Dispensing controlled substances November 19, 2014, Ms. Pemberton was address, his filing was nonetheless including hydrocodone (a schedule II stopped for driving a vehicle without a untimely. Order of the Acting license plate. ALJ Ex. 20, at 9. During a Administrator, at 1 (July 13, 2015). I 2 The United States Supreme Court has explained consensual search of Ms. Pemberton’s therefore directed Respondent’s Counsel my obligations under the Administrative Procedure Act, as well as the role of the ALJ’s recommended purse, a police officer found both Xanax to explain why ‘‘this constitute[d] good decision, in reviewing the record and making (in an unmarked vial) and hydrocodone, cause’’; I also directed Respondent’s factual findings. See Universal Camera Corp. v. and took Ms. Pemberton into custody. Counsel to address why he did not NLRB, 340 U.S. 474, 496 (1951) (‘‘The ‘substantial Id. at 10. During several interviews, Ms. notify the Office of Administrative Law evidence’ standard is not modified in any way when the Board and its examiner disagree.... Pemberton claimed that she had a Judges (OALJ) of his new address, as The findings of the examiner are to be considered prescription for both drugs. Id. She also well set forth the date on which he along with the consistency and inherent probability stated that she had just filled received the decision. Id. of testimony. The significance of his report, of In response, Respondent’s Counsel course, depends largely on the importance of prescriptions for the drugs at explained that he was ‘‘not now credibility in the particular case.’’) (emphasis added). The standard of review of an agency 5 21 U.S.C. 829(a) sets forth the prescription attempting to add exceptions to the decision is also well settled. Accordingly, I decline requirement applicable to the dispensing of a record,’’ that he had previously received to publish the ALJ’s discussion of the substantial schedule II drug. It provides, in relevant part, that: the decision on May 13, 2015, and that evidence test and the standard of review. ‘‘[e]xcept when dispensed directly by a practitioner, he ‘‘had not filed any exceptions to it 3 I do not adopt the ALJ’s statement (at R.D. 49) other than a pharmacist, to an ultimate user, no that ‘‘Regarding Factor 2, in requiring an controlled substance in schedule II, which is a due to [his] understanding that examination of a registrant’s experience in prescription drug . . . may be dispensed without exceptions are not necessary under the dispensing controlled substances, Congress the written prescription of a practitioner, except regulations.’’ Letter of Respondent’s manifested an acknowledgement that . . . the [for] in emergency situations, as prescribed . . . by Counsel to Acting Administrator, at 1 quantitative volume in which an applicant has regulation,’’ allowing for an oral prescription. See engaged in the dispensing of controlled substances also 21 CFR 1306.11(a). (July 14, 2015). Respondent’s Counsel may be [a] significant factor[ ] to be evaluated’’ in 6 21 U.S.C. 829 (b) sets forth the prescription further explained that he had sent his the public interest determination. See JM Pharmacy requirement applicable to the dispensing of a previous letter to the Acting Deputy Group, Inc., d/b/a Farmacia Nueva and Best schedule III or IV drug. It provides that ‘‘[e]xcept Administrator because he had received Pharma Corp., 80 FR 28667, 28667–68 n.2 (2015); for when dispensed directly by a practitioner, other see also Syed Jawed Akhtar-Zaidi, M.D., 80 FR than a pharmacist, to an ultimate user, no a copy of the CALJ’s letter transmitting 42962, 42967–68 (2015). controlled substances in schedule III or IV, which 4 Because I find that Respondent’s registration has is a prescription drug . . . may be dispensed 1 All citations to the Recommended Decision are expired, see infra note 16, I do not adopt the ALJ’s without a written or oral prescription.’’ See also 21 to the slip opinion as issued by the CALJ. recommendation that I revoke its registration. CFR 1306.21(a).

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Respondent and had received them in (3)A. Distributing controlled to place something in his jacket pocket. unmarked bottles; however, she could substances, including one 1,000-count Id. Horton then took the tote and left the not name the prescriber. Id. bottle of hydrocodone 10/325 mg and pharmacy. Id. C. The evidence further shows that two bottles of 100-count methadone 10 D. About ten minutes later, Horton during the course of the police mg methadone, to one Eric Horton, on returned to the pharmacy without the investigation of how Ms. Pemberton had or about January 20, 2015, who was blue tote. Id. A short while later, Chris obtained the controlled substances, arrested following a traffic stop. Watson pulled a stock bottle from a Chris Watson admitted to a Detective Respondent stipulated that each of the shelf and placed it on the counter, after that Pemberton had been in Respondent bottles had Respondent’s pharmacy which Horton walked to the counter, that morning and that he provided the stock stickers on it. Stipulation 21. counted pills, removed several amber drugs without prescriptions. Id. at 11. B. The evidence also includes pill bottles from under the counter and Watson then stated that he had snapshots from Respondent’s proceeded to fill them. Id. After handing ‘‘ ‘loaned’ her some pills . . . ‘because surveillance video camera which show a bottle to Watson, Horton placed one of she was out,’ ’’ but then asserted that that on January 20, 2015, both Chris the bottles in his pocket. Id. Horton then ‘‘we are just waiting on [the doctor’s Watson and Eric Horton were inside the obtained a pharmacy bag and placed office] to call back because that office is pharmacy, in the area where it stored its multiple amber bottles into the bag notoriously slow.’ ’’ Id. However, drugs. GX 36. The evidence shows before leaving the pharmacy. Id. The according to the credited testimony of Watson taking a stock bottle, which video then shows Horton carrying a blue the Detective who interviewed Watson, appears to be of 1,000-count size from tote and leaving the store, followed by Watson gave him ‘‘conflicting the shelves and handing it to Horton, his placing the tote in the bed of his information about the identity of Ms. who then went to a counter and pick-up truck, before driving away. Pemberton’s prescribing physician,’’ proceeded to fill an amber prescription E. Later that evening, Horton was initially stating that it was a Dr. bottle with some of the contents of the arrested by an Arkansas State Trooper Humbard. Id. at 12. While Watson 1,000-count bottle. Id. The evidence on an outstanding warrant following a agreed to provide the Detective with a further shows Horton then placing items traffic stop. During an inventory search copy of the prescriptions, the next day, in a blue tote, after which he proceeded of Horton’s vehicle, the officer found the he faxed over copies of the dispensing to the pharmacy’s shelves, took a stock blue tote along with one 1,000-count labels (but not the actual prescriptions), bottle off a shelf, and showed it to Chris bottle of hydrocodone 10/325 mg, two which indicated that the prescriptions Watson before placing it in a pharmacy 100-count bottles of methadone 10 mg, had been filled on October 9, 2014 (and bag. Id. Thereafter, the evidence shows and one 100-count bottle of oxycodone not November 19, 2014), and the labels Horton going into a back room with the 30. Tr. 83; Stipulation 21; GX 36, at 12. indicated that the prescriber was a pharmacy bag, before returning and then Notably, the oxycodone 30 bottle also different doctor (Dr. Arnold) than placing the pharmacy bag in the tote. Id. had Respondent’s stock sticker on it. GX reported by Watson. Id. Moreover, the C. Horton then went back to another 36, at 12. labels for both drugs showed that no shelf, and returned with another stock F. In addition to the above, refills were authorized. Id. bottle which he showed to Chris Respondent stipulated to Ms. D. The next day, the Detective again Watson. Id. Horton then took out an Pemberton’s testimony that on two called Respondent and spoke with Chris amber prescription bottle before occasions she ‘‘witnessed [Chris Watson seeking the prescriptions. Id. disappearing from the camera frame; Watson] providing stock bottles of After Watson stated that he had faxed however, upon reappearing, Horton did controlled substances to Eric Horton’’ over the labels, the Detective told not have the stock bottle but appeared while attending parties at Watson’s Watson that he needed the home. ALJ Ex. 20, at 9. prescriptions. Id. Watson stated that he false documents and supplying them to law I therefore conclude that the evidence would have one of the pharmacy enforcement to cover his tracks in supplying shows that on multiple occasions, Chris technicians look up the prescriptions Samantha Pemberton with drugs . . . stand[s] out as worthy of separate consideration under Factor Watson (and Respondent) unlawfully and send it to the Detective; later that 5.’’ R.D. at 58. At no point did the Government distributed controlled substances to day, the Detective received a fax which argue that Watson’s actions with respect to the include hydrocodone, methadone, and appeared to list called-in prescriptions. creation and provision of these documents to the oxycodone to Eric Horton.8 See 21 U.S.C. Id. at 13. While the document listed a local police constitute actionable misconduct under factor five, and while Respondent stipulated to the 841(a)(1). prescription for Ms. Pemberton, the date testimony, I conclude that the issue was (4) The evidence also shows that on appeared to be either October 4 or ‘‘incidental’’ to the principal issues in the case. See, or about September 14, 2014, the October 9, 2014 and not November 19, e.g., Yellow Freight System, Inc. v. Martin, 954 F.2d Arkansas State Police arrested one 2014. Id. 353, 358 (6th Cir. 1992) (An ‘‘agency may not base its decision upon an issue the parties tried Joseph Jackson who had been involved E. Subsequently, Ms. Pemberton inadvertently. Implied consent is not established in a motor vehicle accident. Tr. 68–70. provided the Detective with copies of merely because one party introduced evidence According to the unrefuted testimony, two prescriptions; the prescriptions relevant to an unpleaded issue and the opposing local police officers observed a bottle of listed the date of issuance as October 9, party failed to object to its introduction. It must appear that the parties understood the evidence to prescription liquid codeine (with the 2014 and Dr. Arnold as the prescriber. be aimed at the unpleaded issue. Also, evidence label scratched off) in the front seat of Id. However, according to the stipulated introduced at a hearing that is relevant to a pleaded Jackson’s vehicle and the State Trooper testimony of a DEA Task Force Officer issue as well as an unpleaded issue cannot serve to testified that Jackson smelled of who interviewed Dr. Arnold, Arnold give the opposing party fair notice that the new, unpleaded issue is entering the case.’’) (citations marijuana. Tr. 70–71. During a search of ‘‘stated that he had never prescribed any omitted); see also NLRB v. Majestic Weaving Co., controlled substances for Ms. 355 F.2d 854, 861–62 (2d Cir. 1966) (where 8 The State Trooper further testified that he found Pemberton.’’ ALJ Ex. 20, at 19. Thus, Government’s case focuses on other issues and pills in bottles that were mislabeled, as well as pills even the October prescriptions were evidence of uncharged violations is ‘‘at most that were mixed in bottles. Tr. 83. He also found 7 incidental,’’ the incidental issue cannot support a a coke bottle with a lid that could be unscrewed to fraudulent. sanction); 5 U.S.C. 554(b) (‘‘Persons entitled to access a container; inside the container was ‘‘a notice of an agency hearing shall be timely bunch of mixed pills.’’ Id. He also found other coke 7 I decline, however, to adopt the CALJ’s further informed of . . . the matters of fact and law cans with lids that could be unscrewed and used finding that Chris Watson’s actions in ‘‘generating asserted.’’) (emphasis added). to hide drugs. Id. at 84.

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the vehicle, the Officer found a black Watson ‘‘scratched out the letters with provisions of law relating to controlled bag which contained ‘‘a baggie of a pen.’’ Id. substances.’’). marijuana, prescription bottles of drugs, C. On November 19, 2014, the S/A Moreover, I agree with the and two handguns,’’ as well as a 500- returned to Respondent with Government and CALJ that Watson’s count bottle of alprazolam 2 mg which prescriptions for 240 Norco 10/325 mg actions in instructing the S/A, who, in bore Respondent’s stock sticker. Tr. 71; (hydrocodone/apap) and 60 Xanax 2 mg his undercover capacity presented as a Stipulation 22; ALJ Ex. 15, at 16. which he presented to Watson. Id.; see drug-seeking patient, as to how to create Because the evidence further shows that also GX 15, at 1. However, Watson fraudulent prescriptions which were Respondent had not filed a controlled stated that he could not fill the Norco ‘‘more realistic,’’ constitutes conduct substance theft or loss report with DEA prescription because he had run out ‘‘inconsistent with the public interest,’’ ‘‘since at least 2012,’’ I conclude that ‘‘two days earlier’’ and ‘‘would not get regardless of whether it is considered Respondent unlawfully distributed the any more tablets until the first of the under factor two (experience in 500-count bottle of alprazolam 2 mg. month.’’ Id. The S/A then asked Watson dispensing controlled substances) or Stipulation 23; see 21 U.S.C. 841(a)(1). if the DEA number on the prescription factor five (‘‘[s]uch other conduct which (5) Other evidence establishes that ‘‘was correct.’’ Id. at 7. Watson told him may threaten the public health and 10 Chris Watson removed stock bottles of to change the last digit on the number safety’’). 21 U.S.C. 823(f). controlled substances from Respondent. and then ‘‘described how to formulate a (7)A. Other evidence shows that Specifically, one of Respondent’s DEA number.’’ Id. Watson then told the during a search of Chris Watson’s home, employees provided stipulated S/A that ‘‘the prescription . . . looked paper controlled substance testimony that she had seen Chris better than most he sees at the prescriptions for both schedule II drugs Watson remove stock bottles of pharmacy.’’ Id. OxyContin (oxycodone) and hydrocodone and Xanax (alprazolam) The S/A then asked Watson how combination hydrocodone (with acetaminophen), and schedule IV drugs, from Respondent. ALJ Ex. 20, at 20–21. much it would cost to buy a 1,000-count including alprazolam, clonazepam, and Still another employee testified that on bottle of hydrocodone; Watson stated: ‘‘I Soma (carisoprodol), were found in two occasions he witnessed Chris don’t usually do that.’’ Id. After the S/ violation of DEA regulations. ALJ EX. Watson take 1,000 count bottles of A told Watson that he was trying to 15, at 2. More specifically, DEA hydrocodone off the shelf and place make some extra money, Watson replied regulations require that paper them in his backpack. Tr. 278–79. that what the S/A did with the pills prescriptions be maintained at the after the prescriptions had been filled (6) The evidence further shows that registered location. See 21 CFR [was] ‘‘none of his business.’’ Id. Watson on four occasions beginning on 1304.04(h)(2) (‘‘Paper prescriptions for then told the S/A to return to November 7, 2014 and ending on Schedule II controlled substances shall December 4, 2014, a DEA Special Agent Respondent on the first of the month be maintained at the registered location (S/A) made undercover visits to when the pharmacy would be in a separate prescription file.’’); id. Respondent during which he presented resupplied with hydrocodone. Id. § 1304.04(h)(4) (‘‘Paper prescriptions for fictitious controlled substance However, there is no evidence that Schedules III, IV, and V controlled prescriptions to Chris Watson. ALJ Ex. Watson filled the Xanax prescription on substances shall be maintained at the 15, at 5. this date. registered location either in a separate A. On the first occasion, the S/A D. On December 4, 2014, the S/A prescription file for Schedules III, IV, presented prescriptions for 120 Norco presented fictitious prescriptions for and V controlled substances only or in (hydrocodone/acetaminophen) 10/325 240 tablets of hydrocodone 10/325 mg such form that they are readily 9 mg and 60 Xanax (alprazolam) 2 mg. and 60 tablets of alprazolam 2 mg to retrievable from the other prescription at 5–6. According to the S/A, he asked Chris Watson. ALJ EX. 15, at 7. Watson records of the pharmacy.’’). Chris Watson if he ‘‘create[d] the script dispensed the prescriptions to the S/A. B. Still other evidence shows that right?’’; Watson then told the S/A to add Id.; see also GX 29–30. during the execution of a search warrant a certain letter to the DEA number he E. The evidence thus shows that at Respondent, the pharmacy only had had created and to change the last Watson knowingly distributed both number of the prescription ‘‘to create a hydrocodone/acetaminophen (a 10 As found above, Chris Watson clearly knew more realistic-looking prescription.’’ Id. schedule II narcotic) and alprazolam (a that the S/A was presenting fraudulent at 6. Notwithstanding that Watson knew schedule IV benzodiazepine) on two prescriptions when he filled them. In other circumstances, a pharmacist’s counseling of a the two prescriptions were fraudulent, occasions, based on fraudulent person who he knows to be presenting a fraudulent he filled them. Id.; see also GXs 6, 7, 8. prescriptions, for a total of four separate prescription as to how to create ‘‘more realistic’’ B. On November 13, 2014, the S/A acts of unlawful distribution. See 21 prescriptions (i.e., one which would avoid detection returned to Respondent and presented U.S.C. 841(a)(1); see also id. § 843(a)(2) by another pharmacist to whom it was presented) could constitute criminal conduct actionable under prescriptions for both hydrocodone and (‘‘It shall be unlawful for any person factor four even without a conviction. See 21 U.S.C. alprazolam to Chris Watson. ALJ Ex. 15, knowingly or intentionally . . . to use 843(a)(3) (‘‘It shall be unlawful for any person at 6. However, Watson told the S/A that in the course of the . . . distribution[ ] knowingly or intentionally . . . to acquire or obtain he was out of both drugs but would or dispensing of a controlled substance possession of a controlled substance by misrepresentation, fraud, forgery, deception, or have more the next week. Id. The S/A . . . a registration number which is subterfuge[.]’’); 18 U.S.C. 2(a) (‘‘Whoever commits then asked Watson if the letters he had fictitious[.])’’; Cf. 21 CFR 1306.04(a) an offense against the United States or aids, abets, used on the prescriptions for the (‘‘An order purporting to be a counsels, commands, induces or procures its prescriber’s DEA registration number prescription issued not in the usual commission, is punishable as a principal.’’). So too, in other circumstances (i.e., where the person (RF) ‘‘were correct?’’ Id. Watson told course of professional treatment . . . is creating the prescriptions is not an agent for the him to use ‘‘RA’’ instead and wrote the not a prescription within the meaning Government), Watson’s conduct in filling a letters down on a piece of paper. Id. and intent of section 309 (21 U.S.C. 829) prescription, which he knew bore a fictitious After the S/A looked at the paper, and the person knowingly filling such a registration number, could support a charge of conspiracy to use a fictitious registration number in purported prescription, as well as the the course of the distribution or dispensing of a 9 Both prescriptions were written on a single person issuing it, shall be subject to the controlled substance. See 21 U.S.C. 846; id. form. GX 6. penalties provided for violations of the § 843(a)(2).

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‘‘partial invoices’’ for the controlled had served as its PIC from June 1997 the patients’ profiles, the doctors stated substances it purchased in December until January 2012, when he resigned. that they had not written ‘‘any 2014 and January 2015 because Eric Tr. 233, 251. Mr. Swaim further testified prescriptions for those days.’’ Id. Goode Horton ‘‘had removed all of the other that after Chris Watson began working at further testified that there were invoices at PIC Watson’s request in early Respondent as a staff pharmacist (in ‘‘dozens’’ of instances in which he December 2014.’’ ALJ Ex. 20, at 22. July 2011), he noticed that Chris Watson looked for the hard copies of controlled However, under 21 U.S.C. 827(a)(3), ‘‘was not being completely legal on substance prescriptions which were ‘‘every registrant . . . distributing[ ] or some refills’’ and that he saw this over listed on the patient profiles but was dispensing a controlled substance or the course of a month. Id. at 251, 253, unable to find them. Id. at 274–75. substances shall maintain, on a current 263. Mr. Swaim decided that he was not Mr. Goode testified that he told Tom basis, a complete and accurate record of going to remain as the PIC and told Tom Watson that he had ‘‘talked to a couple each such substance received . . . by Watson that he was not going to remain of doctors, and that [he] couldn’t find him.’’ Moreover, under DEA regulations, as the PIC because Chris was ‘‘bending any hard copies for those these records ‘‘must be kept by the the rules’’ and he (Mr. Swaim) did not prescriptions.’’ Id. at 276. According to registrant and be available, for at least ‘‘want to go to jail.’’ Id. at 253. Goode, Watson’s reaction was that the 2 years from the date of such inventory Thereafter, Swaim then completed the prescriptions may have been placed in or records, for inspection and copying drug inventory and Chris Watson the wrong file by the pharmacy by authorized employees of’’ DEA and became Respondent’s PIC. Id. at 254. technicians. Id. at 276–78. Mr. Goode must be kept at the registered location Mr. Swaim, who stayed on as a staff further testified that he discovered that unless ‘‘the registrant has notified the pharmacist with the same hours, further Respondent was missing prescriptions Administration of his intention to keep’’ testified that in September 2014, a and reported this to Tom Watson during the records ‘‘at a central location, rather pharmacy technician (who had worked the first week of his employment than at the registered location.’’ 21 CFR at Respondent for 31 years, see ALJ Ex. (following December 12, 2014). Id. 1304.04(a). Likewise, Respondent could 20, at 21), ‘‘was having a conversation Goode testified that after the not produce its most recent inventory, with Tom [Watson]’’ during which she conversation he asked the pharmacy which apparently had been removed by told Watson that Chris Watson was technicians about the prescriptions and its PIC notwithstanding that a DEA ‘‘giving stuff away.’’ Tr. 256–57. Mr. was told that they ‘‘should be in the regulation requires that the inventory be Swaim joined the conversation and told file.’’ Id.at 278. maintained at the registered location. Tom Watson, ‘‘Tom, he’s handing pills Mr. Goode testified to another ALJ Ex. 20, at 23; see also 21 CFR out the window,’’ and that he was going incident, during which Tom Watson 1304.04(b)(1) (requiring that inventories to give his notice if Watson did not stop was present at Respondent and ‘‘sitting ‘‘be maintained at each registered Chris’s misconduct. Id. at 257. Tom at the desk’’ when Chris Watson took a location’’). Watson replied that he would ‘‘put a 1,000-count bottle of hydrocodone off (8) Finally, the evidence shows that stop to it’’ and to ‘‘trust me.’’ Id. the pharmacy’s shelves and placed it in Respondent would receive shipments of However, when Mr. Swaim returned to his backpack. Id. at 278–80. Mr. Goode controlled substances such as Respondent after several days off, he testified that ‘‘[i]t appeared to’’ him that oxycodone and that the drugs would ‘‘asked the girls [the pharmacy techs] if Tom Watson saw what Chris was doing. ‘‘frequently disappear overnight.’’ ALJ Chris had changed’’ his behavior and Id. at 280. Ex. 20, at 20–21. The evidence also was told ‘‘no.’’ Id. Mr. Swaim then gave Mr. Goode testified to a further shows that ‘‘in either August or October notice and retired. Id. incident, which occurred on January 2, 2013, two 1,000-count bottles of Grant Goode, who was Tom Watson’s 2015. Id. at 282. According to Mr. carisoprodol were stolen’’ from nephew, worked as a staff pharmacist at Goode, one of Respondent’s pharmacy Respondent. Id. at 22. Yet the evidence Respondent from December 12, 2014 technicians brought to his attention also shows that as of January 22, 2015, through February 18, 2015.12 Tr. 271; ‘‘several’’ prescriptions for schedule II Respondent had not filed any theft or 273. Mr. Goode testified that he worked drugs that were ‘‘just made up’’ and loss reports (DEA Form 106) with DEA approximately 25 hours a week during which listed Goode as the dispensing since January 1, 2012.11 ALJ Ex. 20, at December 2014, and that in January, he pharmacist on the label. Id. at 282–83. 17; Tr. 175–76; GX 63. gradually increased his hours until after Mr. Goode testified that Tom Watson While Respondent stipulated to most the middle of January, he was working was at Respondent that morning and so of these acts, this is not the only most of the hours that the pharmacy was Mr. Goode laid out six or eight evidence of misconduct on the part of open. Id. at 271. Mr. Goode testified that prescriptions and told Watson that Respondent’s principals. More when he was not working at while his initials were on the specifically, the evidence shows that on Respondent, Chris Watson was the prescriptions he had not filled any of various occasions, Tom Watson, pharmacist. Id. at 273. them. Id. Tom Watson responded that Respondent’s owner and the father of Mr. Goode testified that while one of the pharmacy technicians (one Chris Watson, was provided information working at Respondent, he received who had worked for him for 31 years) by employees and a business partner phone calls from a couple of doctors ‘‘must be doing that.’’ Id. at 283. Goode that Chris Watson was likely diverting inquiring about whether their patients then told Tom Watson that Chris ‘‘was controlled substances and failed to take had picked up prescriptions written by logging in and printing prescriptions appropriate action. them, and that after he would inform from his laptop.’’ Id. Goode further Mr. Tracy Swaim testified that he had the doctors that the patients had picked testified that Tom Watson did not take worked at Respondent for 26 years and up the prescriptions, the doctors would any action in response to the ask if their patients had filled any other allegation.13 Id. at 284. 11 While Respondent reported a theft incident in prescriptions. Tr. 275. Goode testified August 2013 which involved oxycodone, that when he would tell the doctors 13 In its closing brief, Respondent argues that in hydrocodone, alprazolam, clonazepam, and a proceeding brought to revoke Chis Watson’s bond, phenergan with codeine to the Arkansas Board of about the other prescriptions listed in based on the unsuitability of his third-party Pharmacy on a DEA Form 106, the report was never custodian, a federal magistrate judge found that filed with DEA as required by 21 CFR 1301.74(c). 12 Grant Goode testified that he also worked at ‘‘Mr. [Grant] Goode lacks credibility when testifying Tr. 120. Respondent on November 24, 2014. Tr. 271. Continued

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The Government also elicited Steve Goode further testified that in remember them.’’ Id. at 333–34. As testimony from Steve Goode, who, the summer of 2010, he noticed that one between the testimony of Mr. Swaim between 2001 and 2012, was a business of the stores (Mayflower Food and Drug) and Mr. Watson, the CALJ found Mr. partner of Tom Watson in four ‘‘didn’t have any money in [its] Swaim’s testimony more credible than supermarkets (including Respondent), accounts.’’ Id. at 490. Goode looked into Mr. Watson’s. See R.D. 23, 41. I agree three of which had pharmacies. Id. at the situation and determined that while with the CALJ. 485–86. While Steve Goode testified the pharmacy’s purchases of As for Grant Goode’s testimony that that his responsibilities involved medications ‘‘were up,’’ it ‘‘sales were he told Tom Watson about the issues he managing the grocery side of the stores flat.’’ Id.; see also id. at 491. Of note, found (the missing hard copy and that Tom and Chris Watson oversaw Chris Watson was the Pharmacist in prescriptions, the doctors denying the pharmacies, he would see the daily Charge at the Mayflower store. Id. at having written various prescriptions, and weekly sales reports for the stores. 490. the dispensings which were attributed Id. at 487. Steve Goode further testified Steve Goode told Tom Watson about to him which he did not fill), Watson that its grocery wholesaler (AWG) the issue; Watson’s response was that asserted that ‘‘I haven’t talked to Grant allowed McKesson (the drug distributor ‘‘we would get together and . . . have about any concerns,’’ that Grant ‘‘didn’t used by the stores’ pharmacies) to a talk with Chris.’’ Id. at 491. However, mention a word about anything he talks invoice through it, and thus, even when the conversation did occur, Goode about here,’’ and ‘‘didn’t mention though Steve Goode’s responsibilities was told that he ‘‘needed just to take misconduct . . . about anybody.’’ Id. at were limited to the grocery side of the care of the grocery department [and] 348–49. stores, he could see the pharmacies’ that Chris would take care of the Watson also faulted Grant Goode for purchases on the ‘‘weekly AWG pharmacy department.’’ Id. at 492–93. having called the State Board and the statement.’’ Id. at 487–88. According to At some point, Chris Watson started DEA, testifying that: ‘‘Well, he seems Steve Goode, the daily sales report working at Respondent. Id. at 495. like he’s talked to everybody else. He’s showed the sales of both the grocery According to Steve Goode, in the ‘‘late called the state board. He’s called the side and the pharmacies. Id. spring of 2012’’ he was on vacation DEA, and all this stuff, but he hasn’t when he received a phone call from talked to me about it.’’ Id. at 348.14 Still another employee who told him that in court under oath.’’ Resp. Post-Hrng. Br. 8.; see later, Watson reiterated that Grant also RX 14 (denying motion, reasoning that ‘‘[t]he Chris Watson had allowed a former Goode had ‘‘never come directly to’’ evidence revealed a number of conflicting family employee from the Mayflower pharmacy him about the issues he encountered. Id. dynamics casting considerable doubt upon the to go into Respondent on a Sunday at 351. While Watson maintained that reliability of the witness describing the alleged afternoon when the pharmacy was behavior that the Government presented to Grant Goode also had the same medical disqualify the current third-party custodian’’). closed and fill prescriptions ‘‘for her issue which affected Watson’s memory, Apparently, this was in response to Mr. Goode’s family members and friends.’’ Id. at 496, Tr. 349, the CALJ found that ‘‘Watson’s testimony in the criminal proceeding against Chris 498. When Goode returned from assertion that . . . Grant Goode never Watson that Tom Watson said ‘‘he would like to kill vacation, he spoke with Tom Watson a couple of DEA agents,’’ a statement which he brought concerns about his son’s actions reported to DEA and which prompted the U.S. about the incident and told him that he to his attention is simply not credible.’’ Attorney to file the motion. Tr. 302; see also RX 14. needed to ‘‘get a handle on Chris.’’ Id. R.D. at 41. I agree with the CALJ.15 The CALJ nonetheless found Grant Goode’s at 496. While Tom Watson said that he Mr. Watson further testified that he testimony to be ‘‘sufficiently detailed, plausible, would ‘‘take care of it,’’ Goode testified trusted his son, and that this ‘‘really’’ and internally consistent to be fully credited in this that ‘‘[n]othing happened.’’ Id. However, decision.’’ R.D. 25. The CALJ further explained that shocked him. Tr. 326. When then asked ‘‘[b]ecause the Government did not offer the Goode did not know whether the whether he had any idea that his son purported threat in its case-in-chief, a disposition prescriptions were for controlled ‘‘had a substance abuse issue or was of this case does not require that a credibility issue substances. Id. at 500. diverting,’’ Watson maintained that he on this statement be rendered, and it forms no basis Regarding Mr. Swaim’s testimony as ‘‘had no idea [Chris] had any kind of of this recommended decision.’’ Id. at n.69. to the reason he resigned as Respondent, however, offered the magistrate drug problem.’’ Id. judge’s findings to attack Grant Goode’s credibility Respondent’s PIC, Tom Watson testified When further asked what he would with respect to his testimony that he had brought that ‘‘I remember some of what he have done if he ‘‘had known that [his] his concerns about Chris Watson to Tom Watson’s talked about but I don’t remember all of son had a substance abuse problem or attention and sought to have the CALJ give Goode’s what he talked about.’’ Tr. 326. Watson testimony ‘‘no weight.’’ Resp. Post-Hrng. Br. 8 (‘‘It was diverting controlled substances,’’ is not known if the attention the DEA gave to Mr. then added that he had talked to his son Watson asserted that he would have Goode made him have delusions of grandeur that ‘‘about some things, too, so I was hoping ‘‘[g]ot it stopped,’’ that he would have motivated his testimony, but he did take a keen . . . everything was in good shape.’’ Id. gone ‘‘to the state board,’’ and that he interest in this case when he, unlike other lay Mr. Watson also denied having had a witnesses, was at the hearing every day, even after conversation with his long-standing 14 his testimony had been given. On the other hand, Later, Watson testified that: unlike his reaction to Mr. Swaim’s testimony, Tom pharmacy technician (as Mr. Swaim [F]amily is family. You know, if you’ve got a Watson flatly denied that Mr. Goode ever brought testified) that Chris was diverting drugs. problem go see them about it, and talk about the any concerns about Chris to his attention.’’ Id. at 347. problem. You don’t know you got a problem until (citations omitted)). However, Tom Watson later you at least talk about it. And you know, don’t start However, while Respondent offered the with the state board, don’t start with the DEA and magistrate judge’s finding to impeach Mr. Goode’s acknowledged that Mr. Swaim is ‘‘a all that. Start by calling your uncle or whatever or testimony, I nonetheless adopt the CALJ’s good guy,’’ who had been with him for tell your mom and have her talk to your uncle if credibility finding because in assessing the ‘‘a long time,’’ before attributing the that—you know. credibility of Mr. Goode’s testimony, I am entitled disparity between Mr. Swaim’s Tr. 350. to consider ‘‘the consistency and inherent 15 As for the incidents related by Steve Goode, probability of [his] testimony.’’ Universal Camera testimony and his recollection as being Tom Watson also denied that Steve Goode had ever Corp. v. NLRB, 340 U.S. 474, 496 (1951). Here, the result of ‘‘some health problems.’’ complained about the performance of the consistent with Mr. Goode’s testimony, other Id. at 333. Watson then maintained that Mayflower pharmacy when Chris Watson was witnesses testified that they brought their concerns ‘‘some of the stuff he said I just didn’t working there. Tr. 374–75. Notwithstanding that with Chris Watson to Tom Watson’s attention but there is an ongoing dispute over the proceeds from that the latter ignored them. Accordingly, I find remember like the conversations that he dissolution of their partnership, id. at 505, the CALJ Goode’s testimony credible notwithstanding the said we had. That don’t mean we didn’t found that Steve Goode’s testimony was fully magistrate judge’s finding. have them. It just means that I just don’t credible as do I. R.D. 44.

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‘‘would have halted that immediately.’’ license to engage in drug dealing. Notwithstanding its egregious and Id. at 328. However, shortly thereafter, Notably, in its post-hearing brief, extensive misconduct, Respondent Watson admitted that he did not ‘‘know Respondent does not dispute the nonetheless argues that the denial of its exactly how [he] would have handled evidence of its PIC’s misconduct. Resp. renewal application ‘‘on this ground is it,’’ but that ‘‘at some point’’ the state Post-Hrng. Br. 2. a matter of discretion.’’ Resp. Post- board would have had to ‘‘become Thus, Respondent acknowledges that Hearing Br. 2 (citing Dinorah Drug involved’’ because he had scheduled an ‘‘the Government has met its burden of Store, Inc., 61 FR 15972, 15973 (1996)). inventory for early February and proving its Section 824(a) claim, placing As a statement of the law, that is true. ‘‘would have found out’’ that drugs were the burden on [Respondent] to show However, as set forth in numerous missing.16 Id. at 330. The CALJ did not that despite Chris Watson’s conduct, decisions, where, as here, ‘‘the find Mr. Watson’s testimony on these granting [it] a [Registration] would not Government has proved that a registrant issues credible. R.D. at 41. Nor do I. be contrary to the public interest.’’ Id. at [or applicant] has committed acts Thus, even putting aside the 2010 3. I agree and hold that the evidence inconsistent with the public interest, a incident in which his business partner conclusively establishes that registrant [or applicant] must ‘present complained about the cash shortage at Respondent, through both its PIC and sufficient mitigating evidence to assure the Mayflower store, the evidence owner, has committed numerous acts the Administrator that it can be shows that on multiple occasions, Tom ‘‘inconsistent with the public interest,’’ entrusted with the responsibility carried Watson, Respondent’s owner, was which support both the prior by such a registration.’ ’’ Medicine provided with information that Chris Administrator’s issuance of the Shoppe-Jonesborough, 73 FR 364, 387 Watson was likely engaged in the Immediate Suspension Order, as well as (2008) (quoting Samuel S. Jackson, 72 diversion of controlled substances. the denial of Respondent’s pending FR 23848, 23853 (2007) (quoting Leo R. Notably, in his testimony, Tom Watson application.17 See U.S.C. 823(f); Miller, 53 FR 21931, 21932 (1988))). claimed only that he talked to his son 824(a)(4); 824(d). ‘‘Moreover, because ‘past performance is (although it is unclear which incident the best predictor of future prompted this) and offered no testimony 17 The CALJ found that ‘‘[t]he most recent renewal performance,’ ALRA Labs, Inc. v. DEA, that he took any other measures (other of the Respondent’s registration occurred on February 7, 2012, with a scheduled expiration date 54 F.3d 450, 452 (7th Cir. 1995), [DEA] than to schedule an inventory long after of March 31, 2015.’’ R.D. at 2 n.2. The CALJ then has repeatedly held that where a he had received credible reports of a explained that ‘‘[d]uring a March 19, 2015 status registrant has committed acts problem) to investigate the allegations. conference, the Respondent, through counsel, inconsistent with the public interest, the represented that a renewal application had been This is especially remarkable in light of timely filed, and the Government represented that registrant must accept responsibility for the complaints raised by Mr. Swaim and it will not contest the timeliness of the renewal its actions and demonstrate that it will the pharmacy technician, both of whom application. Thus, the Respondent’s [Registration] not engage in future misconduct.’’ had worked for Mr. Watson for decades. remains in full force and effect.’’ Id. (citing 21 CFR 1301.36(i)). Medicine Shoppe, 73 FR at 387; see also I therefore hold that Mr. Watson’s Here, however, the prior Administrator ordered Jackson, 72 FR at 23853; John H. failure to investigate the allegations that that Respondent’s registration be immediately Kennedy, 71 FR 35705, 35709 (2006); his son and PIC was diverting controlled suspended, thus prohibiting Respondent from substances constitutes ‘‘other conduct exercising the authority granted by its registration. Id. Thus, Respondent’s registration did not ‘‘remain[ ] which may threaten public health and in full force and effect.’’ Thus, where a Registrant, which has been served with an Order to Show Cause, fails to file its safety.’’ 21 U.S.C. 823(f)(5); see also Moreover, according to the Agency’s registration renewal application at least 45 days before the records, of which I take official notice, Respondent Rose Mary Jacinta Lewis, 72 FR 4035, expiration of its registration, the registration expires 4042 (2007) (holding physician liable did not file its renewal application until March 3, 2015. See 5 U.S.C. 556(e); 21 CFR 1316.59(e). absent a showing that the extension of its under factor five for failing to Significantly, at the time Respondent filed its registration is not inconsistent with the public investigate the misuse of her renewal application, it had previously been served health and safety. See Ralph J. Chambers, 79 FR with the Order to Show Cause and Immediate 4962, 4962 (2014). The Agency has also applied the registration; ‘‘every registrant has a duty 45 day rule in cases where a registrant has been to conduct a reasonable investigation Suspension of Registration. By regulation, DEA has set forth the conditions for the continuation of a issued an Immediate Suspension Order, recognizing upon receiving credible information to registration past its expiration date where a that while a timely renewal application may result suspect a theft or diversion has registrant has been served with an Order Show in the extension of a registration, the Immediate Cause. See 21 CFR 1301.36(i); see also 5 U.S.C. Suspension Order precludes the registration from occurred’’ as an investigation ‘‘is remaining in effect. See Paul H. Volkman, 73 FR essential to preventing the continuation 558(c) (‘‘When [a] licensee has made timely and sufficient application for a renewal or a new license 30630, 30641 (2008). However, the Agency has of criminal activity’’). in accordance with agency rules, a license with further held that where an untimely renewal The record in this matter thus reference to an activity of a continuing nature does application has been filed and the Registrant’s establishes that Chris Watson, not expire until the application has been finally Registration has expired, the application remains pending before the Agency. Id. Respondent’s PIC, committed egregious determined by the agency.’’). This regulation provides that: In this matter, I am not bound by the and extensive misconduct which ranged [i]n the event that an applicant for reregistration Government’s agreement not to contest the from regulatory violations to criminal (who is doing business under a registration timeliness of Respondent’s renewal application. acts. In short, Chris Watson used previously granted and not revoked or suspended) Accordingly, I find that Respondent did not file its Respondent’s DEA registration as a has applied for reregistration at least 45 days before renewal application until 28 days before its the date on which the existing registration is due registration expired and was thus untimely. to expire, and the Administrator has issued no Moreover, I further find that because Respondent’s 16 While Mr. Watson testified that an inventory order on the application on the date on which the registration was immediately suspended based on would have determined that Respondent was existing registration is due to expire, the existing the prior Administrator’s finding, which is amply missing drugs, short of doing an audit in which registration of the applicant shall automatically be supported by the record, that its ‘‘continued Respondent’s receipts of controlled drugs were extended and continue in effect until the date on registration during the pendency of these added to the results of a previous inventory and its which the Administrator so issues his/her order. proceedings would constitute an imminent danger dispensings (as well as disposals, thefts or losses) The Administrator may extend any other existing to the public health or safety,’’ ALJ Ex. 1, at 5; and were subtracted, it is not likely that this would have registration under the circumstances contemplated there is no evidence that the prior Administrator uncovered the problem. In any event, given the in this section even though the Applicant failed to found that the extension of its registration would evidence that Mr. Swaim and Ms. Gilbert, his apply for reregistration at least 45 days before not be ‘‘inconsistent with the public health and longstanding pharmacy technician, (not to mention expiration of the existing registration, with or safety,’’ 21 CFR 1301.36(i), its registration has his former business partner), had told Mr. Watson without request by the Applicant, if the expired. However, I also find that Respondent’s about his son’s activities, I am left to wonder why Administrator finds that such extension is not application is before the Agency. See Volkman, 73 the inventory was not scheduled months earlier. inconsistent with the public health and safety. FR at 30641.

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Prince George Daniels, 60 FR 62884, denied that he and Respondent were Turning to the multiple instances in 62887 (1995). See also Hoxie v. DEA, responsible for his son’s misconduct. which the undercover Agent presented 419 F.3d at 483 (‘‘admitting fault’’ is For example, Tom Watson initially clearly fraudulent prescriptions which ‘‘properly consider[ed]’’ by DEA to be testified that ‘‘I didn’t do enough. That Chris Watson filled, Tom Watson an ‘‘important factor[ ]’’ in the public was the problem.’’ Tr. 335. However, testified that he did not accept interest determination). So too, an Watson then amended his testimony, responsibility. Id. at 356. Watson then applicant’s candor during the stating: ‘‘Well, not that I didn’t do explained that ‘‘[w]hoever filled is proceeding is an important enough, I didn’t do it fast enough. I responsible for those prescriptions. I consideration in the public interest would have found out in a week what didn’t fill them.’’ Id. determination. See Hoxie, 419 F.3d at was—you know, where we stood on Tom Watson acknowledged that his 483. everything, so within a week I would son violated federal law when he While a registrant must accept have had to have made a decision on distributed the stock bottles of responsibility and demonstrate that it where I went from there because I controlled substances that were found will not engage in future misconduct in would have known . . . exactly what on Eric Horton and Joseph Jackson order to establish that its registration is we were missing.’’ Id. However, even when they were arrested. Tr. 357. consistent with the public interest, DEA crediting Watson’s testimony that he However, when asked whether he bore has repeatedly held that these are not had scheduled an inventory to be any responsibility for these acts, Watson the only factors that are relevant in conducted in early February (one week testified: ‘‘I don’t think so.’’ Id. at 358. determining the appropriate sanction. after the ISO was served), the evidence Continuing, Watson added: ‘‘Whoever See, e.g., Joseph Gaudio, 74 FR 10083, shows that Watson was told of his son’s filled the prescriptions and whoever 10094 (2009); Southwood misconduct on multiple occasions by give [sic] the medication away, that’s Pharmaceuticals, Inc., 72 FR 36487, three different persons (Mr. Swaim, Ms. who is responsible, I think. They will 36504 (2007). Obviously, the Gilbert, his longstanding pharmacy tech, have to take responsibility for that they egregiousness and extent of a and his former business partner), well registrant’s misconduct are significant do, I mean it’s part of life.’’ Id. factors in determining the appropriate before his nephew Grant Goode also Also, as found above, Mr. Watson’s sanction. See Jacobo Dreszer, 76 FR complained. Watson offered no nephew testified that Tom Watson was 19386, 19387–88 (2011) (explaining that explanation for why he failed to do present on one occasion during which a respondent can ‘‘argue that even anything more that talk to his son in Chris Watson placed a 1,000-count response to the earlier reports he bottle of hydrocodone in his back pack though the Government has made out a 18 prima facie case, his conduct was not so received. and that Tom Watson observed this. egregious as to warrant revocation’’); The record contains other examples of Tom Watson did not address this Volkman, 73 FR at 30644; see also Paul Tom Watson providing equivocal incident either to deny that it had Weir Battershell, 76 FR 44359, 44369 testimony or outright denying occurred or to acknowledge that it had (2010) (imposing six-month suspension, responsibility for Respondent’s various occurred and accept responsibility for noting that the evidence was not limited violations of federal law. For example, his misconducting in failing to to security and recordkeeping violations when asked whether he accepted intervene to prevent his son from found at first inspection and responsibility for the violations diverting the drugs. ‘‘manifested a disturbing pattern of Respondent committed when Chris Still later, when asked whether under indifference on the part of [r]espondent Watson removed the controlled Respondent’s new Policies and to his obligations as a registrant’’); substance prescriptions from the Procedures, Tom Watson could even be Gregory D. Owens, 74 FR 36751, 36757 pharmacy to his house, Tom Watson affiliated with Respondent, Watson n.22 (2009). So too, the Agency can testified that Chris ‘‘failed to provided testified that ‘‘[i]t would right now, yes. consider the need to deter similar acts, [sic] with the law,’’ before adding that The only problem is I have done both with respect to the respondent in while ‘‘[t]he owner have [sic] to take nothing wrong.’’ Tr. 368. Continuing, a particular case and the community of some responsibility . . . this is not— Watson explained that ‘‘[w]hen they registrants. See Gaudio, 74 FR at 10095 that’s not my fault, I don’t think. I think come and took my DEA license, yes, (quoting Southwood, 72 FR at 36504). the pharmacist-in-charge should be that’s a possibility, but I have—I mean, Cf. McCarthy v. SEC, 406 F.3d 179, 188– responsible for that.’’ Tr. 354. I have done nothing wrong. I mean, I 89 (2d Cir. 2005) (upholding SEC’s When then asked whether he was can’t help what other people have done, express adoptions of ‘‘deterrence, both admitting that Respondent failed to but me personally I have done nothing specific and general, as a component in comply with federal law when Chris wrong . . . I might be a little slow to act analyzing the remedial efficacy of Watson distributed controlled substance on some things that’s all I’m guilty of.’’ sanctions’’). without a prescription, Tom Watson Tr. 368. Having considered the relevant replied: ‘‘I don’t think [Respondent] did. Accordingly, I agree with the CALJ’s factors, I conclude that Respondent has I think my son did.’’ Id. at 355. Upon not produced sufficient evidence to findings that Respondent has failed to further questioning as to whether he accept responsibility for its misconduct. show why it can be entrusted with a was accepting responsibility for these new registration. As for whether This alone is sufficient to conclude that violations, Watson explained: ‘‘I accept Respondent has not rebutted the Respondent accepted responsibility for some responsibility because I probably its misconduct, based on the record as Government’s prima facie showing that should have replaced Chris with granting Respondent’s application a whole, I agree with the CALJ’s finding somebody else, but . . . it’s past tense that it ‘‘has not accepted responsibility.’’ ‘‘would be inconsistent with the public so now so I can’t, so I’ll have to take interest.’’ 21 U.S.C. 823(f); see also R.D. at 60. responsibility for that, yes.’’ Id. I acknowledge that Respondent Liddy's Pharmacy, L.L.C., 76 FR 48887, stipulated to many of the allegations. 48897 (2011). Given the egregiousness 18 Even then, short of conducting an audit (of and extent of its misconduct, I need not However, on the whole, Tom Watson’s which an inventory is only a part), it is unlikely that testimony on the issue was equivocal Tom Watson would have discovered the full scope consider whether Respondent has put and unpersuasive as he repeatedly of Respondent’s diversion. forward sufficient evidence of remedial

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measures to support its burden of significant.’’ Resp. Post-Hrng. Br. 12. As for rejecting consideration of production on this issue.19 support for its contention, it relies on community impact evidence in cases Respondent nonetheless argues that it Pettigrew Rexall Drugs, 64 FR 8855, involving prescribing practitioners should be granted a new registration 8860 (1999), a case in which the Agency apply with equal force to pharmacies. because ‘‘[t]he community impact’’ of found that revocation of a pharmacy’s In Gregory Owens, 74 FR 36751, not granting its application ‘‘is registration was justified by the proven 36757 (2009), the Agency explained that misconduct (i.e., dispensing controlled ‘‘whether a practitioner treats patients 19 On the issue of its remedial measures, substances without a physician’s who come from a medically Respondent argued that Tom Watson testified that authorization but for which the patients underserved community or who have if its application is granted, ‘‘he will be more actively involved in its operations’’ to ‘‘ensure its appeared to have medical needs), but limited incomes has no bearing on proper operations, accountability, and viability.’’ then ‘‘recognize[d] that [it was] one of whether he has accepted responsibility Resp. Post-Hrng. Br. 16. However, given the two pharmacies in a relatively poor, and undertaken adequate corrective multiple instances in which Mr. Watson was made measures.’’ The Agency further aware of his son’s misconduct and did nothing medically underserved community, and more than talk to his son, his promise to do better . . . would most likely close if its DEA explained that ‘‘[t]he diversion of in the future rings hollow. registration [was] revoked.’’ However, prescription drugs has become an On this issue, Respondent also presented the the Agency also noted that in addition increasingly serious societal problem, testimony of Glenn Wood, its prospective new to having changed its procedures, there which is particularly significant in Pharmacist in Charge. R.D. at 60. Finding Wood’s testimony unpersuasive, the CALJ explained that: was ‘‘no evidence of any wrongdoing poorer communities whether they are Wood’s testimony concerning all the extra since the events at issue’’ which had located in rural or urban areas,’’ and security measure [sic] he intends to take suffers occurred five or more years before the that ‘‘[t]he residents of this Nation’s from the same fundamental defect that [Tom] proceeding was even initiated (and eight poorer areas are as deserving of Watson’s representations regarding his anticipated increased pharmacy involvement and years before the issuance of the protection from diverters as are the implementation of his Proposed Policy do: both decision). Id. citizens of its wealthier communities.’’ men were present and did nothing when the Based on Pettigrew Rexall Drugs, Id. Respondent’s PIC Chris [Watson], ran wild. These Respondent argues that the community The Agency also noted that there are men are a major part of the problem, not the champions of a solution that can be afforded any impact would be substantial because no workable standards for determining genuine credence. Respondent ‘‘is located in ‘‘a rural and when a practitioner should be entitled Id. underserved area,’’ and that ‘‘[a] large to a reduced sanction based on I do not find adequate support in the record for percentage of [its] patients are community impact evidence. Id. Thus, the CALJ’s assertion that Glenn Wood was ‘‘present in Owens, the Agency rejected the ALJ’s and did nothing when’’ Chris Watson ‘‘ran wild.’’ indigent.’’ Resp. Post-Hrng. Br. 13–14. While Glenn Wood testified that he had done a one- Respondent further argues that without recommendation that the Agency month internship under Chris Watson while he was a registration, Respondent would not be should decline to impose either a in pharmacy school, Tr. 477, 479; and that during viable concern because patients will not suspension or revocation of the the period 2006 through 2007, when he was practitioner’s registration because 10 working at both the Mayflower and Perryville go to two different pharmacies to fill stores, he worked alongside of Chris Watson one their prescriptions and that the only percent of his patients came from day a week, id. 454, 479; there is no evidence that ‘‘other pharmacy in the area’’ ‘‘would underserved counties and a majority of Chris Watson was diverting controlled substances have a monopoly.’’ Id. at 14–15. his patients had limited finances. during this time period, let alone evidence that As the Agency explained: Glenn Wood observed this. While the Agency has now in Thereafter, Wood went to Utah for a brief period multiple cases rejected the contention The ALJ’s reasoning begs the question of before returning to Arkansas and becoming the PIC that community impact is a relevant how many patients from underserved areas at Morrilton Food and Drug for approximately three consideration in assessing whether a would a practitioner have to treat to claim years up until the sale of the pharmacy in 2013. Tr. prescribing practitioner’s registration the benefit of the rule. As for her reliance on 395–96. Here again, there is no evidence that Chris ‘‘would be consistent with the public the fact that a majority of Respondent’s Watson was diverting drugs in this period, let alone patients have limited incomes, determining evidence that Glenn Wood observed this. interest,’’ and the reasoning of these what constitutes a patient with a limited After the sale of Morrilton Food and Drug, Wood decisions calls into question the income or finances (or what percentage of worked for a pharmacy that is not affiliated with the continuing vitality of Pettigrew Rexall Watsons, before agreeing in December 2014 with patients) a practitioner must have [who meet Chris Watson to work several days a week at Drugs even as applied to a pharmacy, the criteria] to claim entitlement to this rule, Respondent. Id. at 396. Wood, however, did not contrary to the discussion in the start work at Respondent until January 28, 2015, the Recommended Decision, R.D. at 60, the the community impact coin’’ and ‘‘that a rule which day after the search warrant and Immediate Agency has not formally overruled the takes into account the impact on the community Suspension Order were served. Id. at 398. case.20 caused by not registering (or de-registering through To be sure, Wood acknowledged that he had met However, the Agency’s reasons a revocation proceeding) a particular practitioner is Eric Horton at a birthday party for Chris Watson’s completely unworkable.’’ Id. (citations omitted). daughter and there were occasions on which Chris 20 Each of the cases cited by the ALJ involved Moreover, the Agency cited only cases involving Watson and Horton would show up at the prescribers. The closest the Agency has come to prescribing practitioners and did not discuss pharmacy. Id. at 464–68. This, however, is too thin overruling Pettigrew Rexall Drugs is Physicians Pettigrew Rexall Drugs. Accordingly, Physicians a reed to support the conclusion that Wood was Pharmacy, L.L.C., 77 FR 47096 (2012). Therein, the Pharmacy cannot be read as overruling Pettigrew ‘‘present and did nothing when [Chris Watson] ran Agency agreed ‘‘with the ALJ’s rejection of the Rexall Drugs. See, e.g., Drug Plastics & Glass Co., wild,’’ R.D. at 60, especially given that there is no Government’s contention that ‘in assessing the Inc., v. NLRB, 44 F.3d 1017, 1022 (D.C. Cir. 1995) evidence that Watson was diverting drugs during public interest, the nature and amount of diversion (‘‘In order to diverge from agency precedent, the this period. Ultimately, because Wood testified of controlled substances in a geographical area is a Board must ‘suppl[y] a reasoned analysis indicating primarily on the issue of whether Respondent has legitimate area of inquiry and concern when that prior policies and standards are being instituted adequate remedial measures, an issue determining whether an applicant should be deliberately changed, not casually ignored.’ ’’) which I need not resolve given Respondent’s failure granted a DEA registration.’ ’’ Id. at 47096 n.2. As (citations omitted); Shaw's Supermarkets, Inc., v. to accept responsibility, I deem it unnecessary to the Agency explained, ‘‘[n]othing in the texts of any NLRB, 884 F.2d 34, 37 (1st Cir. 1989) (quoting consider the issues surrounding the February 25, of the five [public interest] factors set forth in Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. 2015 phone call (nearly one month after the ISO section 823(f) remotely suggests that Congress of Trade, 412 U.S. 800, 808–09 (1973) (plurality op.) was served and the search warrant executed) granted the Agency authority to deny an application (‘‘It is, of course, true that the Board is free to adopt between Wood and Grant Goode regarding the based on its assessment of ‘the nature and amount new rules of decision and that the new rules of law latter’s employment status, or Wood’s involvement of diversion of controlled substances in a can be given retroactive application. Nevertheless in the Redneck Remedy business venture, and geographical area.’ ’’ Id. (quoting Gov. Br. 4). the Board may not depart sub silentio, from its decline to adopt that portion of the Recommended In dicta, the Agency also noted that the usual rules of decision to reach a different, Decision which discusses these issues. R.D. 29–36. Government’s argument is ‘‘simply the other side of unexplained result in a single case.’’)).

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would inject a new level of complexity into search for pharmacies in the Perryville Thus, I conclude that Respondent’s already complex proceedings and take the area (of which I take official notice) evidentiary showing on community Agency far afield of the purpose of the CSA’s show that there are six pharmacies impact is insufficient to rebut the registration provisions, which is to prevent located in Morrilton.21 Tr. 395. Government’s prima facie showing that diversion. Moreover, since Pettigrew Rexall Drugs, granting its application ‘‘would be Id. there has been an increase in the inconsistent with the public interest.’’ Notwithstanding that Respondent availability of legitimate mail order 21 U.S.C. 823(f). Nor do I consider its provided notice that it intended to argue pharmacies. Thus, I reject Respondent’s evidence sufficient to support a lesser that the Agency should consider the suggestion that denying its application sanction than what is warranted on the community impact of denying its will allow the remaining pharmacy to facts of this case. application, the Government does not engage in monopolistic pricing. In short, I agree with the CALJ that the address whether Pettigrew Rexall Drugs Of further note with respect to Mr. misconduct engaged in by both Chris remains viable as precedent. See Wood’s testimony that a large Watson (Respondent’s PIC) and Tom generally Gov. Post-Hrng. Br. percentage of Respondent’s customers Watson (its owner) was egregious. See Accordingly, I address whether are indigent (and presumably less able R.D. at 61. And I further agree with the Respondent has produced sufficient to travel to Morrilton), Respondent CALJ’s conclusion that ‘‘a sanction that evidence to support such a claim. produced no evidence as to the number falls short of [denial] would undermine Respondent’s evidence on the issue of patients it deems to be indigent who the Agency’s legitimate interests in both was limited to the testimony of Mr. are not enrolled in the Arkansas specific and general deterrence.’’ Id. Wood that Perry County is ‘‘an Medicaid program. However, the Accordingly, I will affirm the Order of extremely rural area’’ and that ‘‘[a] large Arkansas Medicaid program covers the Immediate Suspension, as well as order percent of our customers are what I cost of most prescription drugs. See the denial of Respondent’s pending would describe as being indigent Arkansas Dept. of Human Services, application to renew its registration. probably somewhat.’’ Tr. 404. Mr. Wood Arkansas Medicaid, ARKids First & Order further testified that without You—Arkansas Medical Beneficiary Respondent, there would only be one Handbook 56 (Rev. 2010). And Pursuant to the authority vested in me pharmacy in the county which would Respondent produced no evidence that by 21 U.S.C. 823(f) as well as 28 CFR have a monopoly. Id. at 405. Finally, the other Perryville pharmacy does not 0.100(b), I order that the application of Mr. Wood testified that in Arkansas, a accept Medicaid patients.22 Finally, as Perry County Food & Drug for a DEA pharmacist can provide disease state for Respondent’s contention that Certificate of Registration as a retail management and give immunizations. pharmacists in Arkansas can provide pharmacy be, and it hereby is, denied. Id. at 404–05. disease state management and Pursuant to the authority vested in me Mr. Wood’s testimony is too immunizations, it has offered no by 21 U.S.C. 824(a)(4) & (d), as well as insubstantial to support the conclusion evidence that there is a shortage of 28 CFR 0.100(b), I affirm the Order of that a sanction less than denial of its medical professionals in the Perryville Immediate Suspension of DEA application is warranted because of the area who can provide these services.23 Certificate of Registration AP2331851 adverse community impact resulting issued to Perry County Food & Drug. from its inability to dispense controlled 21 Pursuant to 5 U.S.C. 556(e), Respondent may Pursuant to the authority vested in me substances. Notably, Mr. Wood did not show to the contrary, by filing a properly supported by 21 U.S.C. 824(f), I further order that specify the percentage of Respondent’s motion, no later than 15 days from the date of all right, title, and interest in any service of this order, which shall commence on the customers that is indigent, nor the date of mailing. controlled substances seized by the income level he used to support his 22 Because Respondent seeks to rebut the Government during the execution of the conclusion. Government’s prima facie showing, it has the As for the contention that without a burden of production on this issue. misconduct, the Agency ‘‘would [have] again DEA registration, Respondent will lose 23 While I decline to overrule Pettigrew Rexall revoke[d] her registration’’); see also MacKay v. Drugs, I find its reasoning to be problematic as it DEA, 664 F.3d 808, 820 (10th Cir. 2011) (‘‘The DEA many of its customers because they will appears to have given more weight to community may properly consider whether a physician admits not want to go to two pharmacies to fill impact than was warranted by the minimal fault in determining if the physician’s registration their prescriptions, controlled evidence discussed in the decision and set forth no should be revoked.’’) (citation omitted); Chein v. substances constitute only 11 percent of principle for when such evidence could overcome DEA, 533 F.3d 828, 837 (D.C. Cir. 2008) (upholding all prescriptions issued nationally. See other relevant factors. revocation order, noting in part that physician had For example, the decision noted the Agency’s not ‘‘accepted responsibility for his misconduct’’); Electronic Prescriptions for Controlled agreement with the ALJ’s finding that the pharmacy Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. 2005) Substances, 75 FR 16236, 16237 (2010) owner ‘‘did not appear candid or forthright and his (DEA properly considers a registrant’s admission of (Interim Final Rule). This suggests that testimony appeared to be tailored to Respondent’s fault in determining whether registration should be the majority of pharmacy patients do defense in this proceeding.’’ 64 FR at 8858. The revoked). decision also noted the ‘‘[r]espondent’s failure to Since Pettigrew Rexall Drugs, the Agency has also not even fill controlled substance acknowledge or accept responsibility for any made clear that it ‘‘places great weight on a prescriptions. wrongdoing.’’ Id. at 8860. registrant’s/applicant’s candor, both during an Moreover, even if the lack of a Notably, since Pettigrew Rexall Drugs, the Agency investigation and in any subsequent proceeding.’’ registration will eventually render has made clear that where the Government has Robert F. Hunt, 75 FR 49995, 50004 (2010); see also proved that a registrant/applicant has engaged in The Lawsons, Inc., t/a The Medicine Shoppe Respondent financially unviable, I do intentional or knowing diversion, the registrant/ Pharmacy, 72 FR 74334, 74338 (2007) (quoting not find persuasive its contention that applicant must acknowledge its misconduct to Hoxie, 419 F.3d at 483) (‘‘Candor during DEA this will have an adverse community rebut the conclusion that its registration is investigations properly is considered by the DEA to impact. While Respondent maintains inconsistent with the public interest. See Holiday be an important factor when assessing whether a CVS, L.L.C., d/b/a CVS/Pharmacy Nos. 219 and . . . registration is consistent with the public that this will result in the creation of a 5195, 77 FR 62315, 62323 (2012) (revoking interest.’’); Rose Mary Jacinta Lewis, 72 FR at 4042 monopoly because there is only one pharmacy registration notwithstanding that (holding that lying under oath in proceeding to other pharmacy in Perryville, Mr. company had replaced each pharmacy PIC because downplay responsibility supports conclusion that Watson and his partner formerly owned company failed to acknowledge its misconduct); physician ‘‘cannot be entrusted with a Jayam Krishna-Iyer, 74 FR 459, 463 (2009) (holding registration’’). a pharmacy in Morrilton, Arkansas, on remand that had physician not ‘‘acknowledged Thus, were a case to come before me with similar which is only fourteen miles from wrongdoing with respect to both her prescribing to facts to those of Pettigrew Rexall Drugs, I would Perryville, and the results of a Mapquest the undercover operatives, as well as’’ other deny its application and/or revoke its registration.

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Order of Immediate Suspension issued registration with the DEA should be substances as required by 21 CFR to Perry County Food & Drug be, and it revoked pursuant to 21 U.S.C. 824(a). 1301.74(c).31 hereby is, vested in the United States. After carefully considering the 24 The Stipulations of Fact This Order is effective immediately. testimony elicited at the hearing, the The Government and the Respondent, Dated: October 29, 2015. admitted exhibits, the arguments of through counsel, have entered into Chuck Rosenberg, counsel, and the record as a whole, I stipulations 32 regarding the following have set forth my recommended Acting Administrator. matters: findings of fact and conclusions of law Paul A. Dean, Esq., for the (1) The Respondent pharmacy is below. Government. registered with the DEA as a retail M. Darren O'Quinn, Esq., for the The Allegations pharmacy in Schedules II–V under DEA Respondent. COR AP2331851 at 112 Houston RECOMMENDED RULINGS, FINDINGS In the OSC/ISO, the Government Avenue, P.O. Box 327, Perryville, OF FACT, CONCLUSIONS OF LAW, contends that several bases exist upon Arkansas 72126. AND DECISION OF THE which the Agency should revoke the (2) The scheduled expiration date of ADMINISTRATIVE LAW JUDGE Respondent’s COR. The Government DEA COR AP2331851, which has been alleges that revocation of the issued to the Respondent, and is the John J. Mulrooney, II, Chief Respondent’s COR is appropriate subject of these proceedings, is March Administrative Law Judge. On January because the Respondent unlawfully 31, 2015. 26, 2015, the Administrator of the Drug distributed controlled substances in (3) During the time period of August Enforcement Administration (DEA) violation of 21 U.S.C. 841(a) and 21 15, 2014 through January 28, 2015, issued an Order to Show Cause and U.S.C. 842(a). Specifically, the Chris W was the Vice-President and Immediate Suspension of Registration Government contends that from August Controller of the Respondent pharmacy. 25 (OSC/ISO) suspending the DEA 2014 through January 2015, the (4) During the time period of August Certificate of Registration (COR), Respondent (1) ‘‘on several occasions 15, 2014 through January 28, 2015, 26 number AP2331851, of Perry County . . . distributed and dispensed Chris W was the pharmacist-in-charge Food & Drug (Respondent), pursuant to controlled substances to individuals (PIC) of the Respondent pharmacy. 21 U.S.C. 824(d), on the grounds that either without a prescription, as (5) The only registered address for the the Respondent’s continued registration required by 21 U.S.C. 829(a), (b) and 21 Respondent pharmacy under DEA COR constitutes an immediate danger to the CFR 1306.11(a) and 1306.21(a), or AP2331851 is: 112 Houston Avenue, public health and safety. The OSC/ISO pursuant to prescriptions that [the P.O. Box 327, Perryville, Arkansas also proposes to revoke the Respondent’s] pharmacist knew or 72126. Respondent’s COR pursuant to 21 U.S.C. should have known had not been issued (6) Patient D.J.33 had a prescription for 824(a)(4), deny any pending for a legitimate medical purpose in the Xanax, a controlled substance,34 filled at applications for renewal or modification usual course of the practitioner’s the Respondent pharmacy on September of such registration, or deny any professional practice’’ and (2) failed to 17, 2013. The hard copy of this applications for additional DEA ‘‘provide effective controls against theft prescription was discovered at Chris registration, on the grounds that the and diversion of controlled W’s residence during the execution of a Respondent’s continued registration is substances.’’ 28 federal search warrant on January 27, inconsistent with the public interest as 2015. In support of its allegations, the that term is defined in 21 U.S.C. 823(f). (7) Patient J.I. had a prescription for Government asserts that on several On February 6, 2015, the Respondent, Clonazepam, a controlled substance,35 occasions, the Respondent’s pharmacist- through counsel, filed a timely request filled at the Respondent pharmacy on 27 in-charge (PIC) Chris Watson (Chris W) for a hearing. A hearing was September 17, 2013. The hard copy of (1) dispensed controlled substances conducted in this matter on March 31– this prescription was discovered at (hydrocodone and alprazolam) without April 1, 2015, in Little Rock, Arkansas. Chris W’s residence during the a prescription and (2) dispensed The issue ultimately to be adjudicated execution of a federal search warrant on controlled substances (hydrocodone and by the Administrator, with the January 27, 2015. alprazolam) pursuant to prescriptions assistance of this recommended (8) Patient A.Q. had a prescription for that Chris W knew were fictitious or decision, is whether the record as a Hydrocodone, a controlled substance,36 whole establishes by substantial fraudulent.29 Additionally, the evidence that the Respondent’s Government alleges that Chris W 31 Id. at 4. advised an undercover DEA agent on 32 The parties have also entered into stipulations 24 For the same reasons that led the former how to modify a scrip by hand to of credible testimony regarding twenty-three Administrator to conclude that an Immediate ‘‘create a more realistic looking witnesses. All stipulations of fact and testimony are Suspension was warranted, I conclude that the prescription’’ and deliberately ignored set forth in ALJ Ex. 20. public interest necessitates that this Order be 33 Consistent with the terms of the Protective effective immediately. See 21 CFR 1316.67. the agent’s reference to intentional Order issued in this matter (ALJ Ex. 15), initials 25 ALJ Ex. 1. diversion of controlled substances filled have been substituted for patient name identifiers. 30 26 Gov’t Ex. 1. The Respondent was issued DEA at the Respondent. The Government Copies of each of the prescriptions found at Chris COR AP2331851 prior to April 2, 1986. Id. at 1. The also asserts that state law enforcement W’s house were received into evidence. Gov’t Exs. most recent renewal of the Respondent’s discovered the Respondent’s stock 41, 54–63; Tr. 204. registration occurred on February 7, 2012, with a 34 Xanax (alprazolam) is a Schedule IV controlled scheduled expiration date of March 31, 2015. Id. bottles of controlled substances in substance. 21 CFR 1308.14 (2015); Office of During a March 19, 2015 status conference, the vehicles of non-pharmacy personnel, Diversion Control, Benzodiazepines, Drug Respondent, through counsel, represented that a and that the Respondent failed to inform Enforcement Admin. (Jan. 2013), renewal application had been timely filed, and the DEA of the loss or theft of controlled available at http://www.deadiversion.usdoj.gov/ Government represented that it will not contest the drug_chem_info/benzo.pdf. timeliness of the renewal application. Thus, the 35 Clonazepam is a Schedule IV controlled Respondent’s COR remains in full force and effect. 28 ALJ Ex. 1 at 1–3. substance. 21 CFR 1308.14. 21 CFR 1301.36(i) (2015). 29 Id. at 1–2. 36 Hydrocodone is a Schedule II controlled 27 ALJ Ex. 3. 30 Id. at 2–3. substance. 21 CFR 1308.12 (2015).

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filled at the Respondent pharmacy on Agent to use the letters ‘‘RA’’ instead of officer had noticed a bottle of liquid September 17, 2013. The hard copy of ‘‘RF’’ on the DEA registration number of codeine 42 in the front seat of the this prescription was discovered at a prescription that was presented to vehicle. SOT 13(b); Tr. 69–71. Cpl. Chris W’s residence during the Chris W. Whitley started a conversation with execution of a federal search warrant on (17) On November 19, 2014, Chris W Jackson and although Jackson denied January 27, 2015. instructed an undercover DEA Special any drug use, Cpl. Whitley noticed that (9) Patient N.R. had a prescription for Agent to change the last digit of a DEA his speech was slurred and detected the Hydrocodone, a controlled substance, registration number to six on a odor of marijuana. SOT 13(b); Tr. 71. filled at the Respondent pharmacy on prescription that was presented to Chris Cpl. Whitley then secured Jackson in May 25, 2011. The hard copy of this W. handcuffs in a police vehicle, and he prescription was discovered at Chris (18) On November 19, 2014, Chris W and the other officers searched Jackson’s W’s residence during the execution of a instructed an undercover DEA Special car.43 SOT 13(b). The troopers smelled federal search warrant on January 27, Agent on how to create a fictitious DEA marijuana in Jackson’s car and observed 2015. registration number. a bottle of codeine on the seat. SOT (10) Patient M.B. had a prescription (19) On or about November 19, 2014, 13(c). Also discovered during the car 37 for Oxycontin, a controlled substance, Chris W distributed 30 tablets of search was a black bag containing a filled at the Respondent pharmacy on hydrocodone and 30 tablets of Xanax to baggie of marijuana,44 prescription September 17, 2013. The hard copy of Samantha Pemberton without a bottles of drugs, and two handguns. Id. this prescription was discovered at prescription. Jackson denied any knowledge of the Chris W’s residence during the (20) On December 4, 2014, Chris W drugs and told Cpl. Whitley that the execution of a federal search warrant on distributed 240 tablets of hydrocodone weapons were not his. SOT 13(c); Tr. January 27, 2015. 10/325 mg and 60 tablets of alprazolam 74. Cpl. Whitley searched Jackson for (11) Patient DC had a prescription for 2 mg to an undercover DEA Special additional weapons, and discovered Soma, a controlled substance,38 filled at Agent pursuant to a prescription that three large bundles of cash in his the Respondent pharmacy on September Chris W knew or should have known pockets totaling $2,820. SOT 13(c), (d). 16, 2013. The hard copy of this was fraudulent. Among other things, the seized evidence prescription was discovered at Chris (21) The stock bottle of 1,000-count included 74 carisoprodol tablets, 12 W’s residence during the execution of a hydrocodone 10/325 mg and two stock alprazolam bars, one bag of suspected federal search warrant on January 27, 39 bottles of 100-count methadone 10 mg marijuana, one bottle of codeine, and 2015. that were in Eric Horton’s possession at two 500-count stock bottles of (12) Patient D.C. had a prescription the time of Horton’s arrest on or about for Hydrocodone, a controlled alprazolam, one of which bore a sticker January 20, 2015 all had the Respondent 45 substance, filled at the Respondent from the Respondent. SOT 13(d). pharmacy’s stock stickers on them. Interestingly, the materials seized from pharmacy on September 16, 2013. The (22) The stock bottle of 500-count Jackson’s vehicle also contained a hard copy of this prescription was alprazolam 2 mg that was in Joe handwritten note bearing the following discovered at Chris W’s residence Jackson’s possession at the time of Joe phrases: ‘‘no standing out’’; ‘‘your during the execution of a federal search Jackson’s arrest on or about September people go in as a group and if you leave warrant on January 27, 2015. 14, 2014 had the Respondent plz [sic] leave your number’’; ‘‘please (13) On or about August 15, 2014, pharmacy’s stock sticker on it. have A–C in your car’’; ‘‘what to say’’; Chris W dispensed 42 tablets of (23) The Respondent pharmacy has ‘‘you have lower back pain and you take hydrocodone 10/325 mg to one A.R. not filed a theft or loss report with DEA hydrocodone 10.325 four time [sic] a without a prescription. since at least 2012. (14) On November 7, 2014, Chris W day’’; ‘‘xanx [sic] 2 mg twice a day’’; dispensed 120 tablets of hydrocodone The Evidence ‘‘and your last visit to a doctor 2 to 3 10/325 mg and 60 tablets of alprazolam In addition to its reliance on the months ago.’’ Gov’t Ex. 39 at 3. The 2 mg to an undercover DEA Special factual stipulations reached by the seized note bore the obvious hallmarks Agent pursuant to a prescription that parties, supra, the Government of crib notes that were apparently Chris W knew or should have known presented its case through the live and/ contrived to coach others successfully to was fraudulent. or stipulated testimony 40 of twenty-six lie persuasively to obtain controlled (15) On November 7, 2014, Chris W witnesses.41 substances illegally from DEA instructed an undercover DEA Special Arkansas State Trooper Corporal practitioner registrants. Agent to add the letter ‘‘R’’ to the DEA (Cpl.) Richard Whitley testified that he The Government also presented the registration number on a prescription, was on patrol on September 14, 2014 testimony of Dr. Raymond E. and to change the last digit of the when he was dispatched to a one- Hambuchen, D.D.S., a dentist practicing number to seven to create a more vehicle accident where an individual in Conway, Arkansas, and an realistic-looking prescription. named Joseph Jackson was being acquaintance of the Respondent’s (then) (16) On November 13, 2014, Chris W detained for leaving the scene. PIC, Chris W. Dr. Hambuchen testified instructed an undercover DEA Special Stipulation of Testimony (SOT) 13(b); that he has known Chris W for years and Tr. 67–68. Upon his arrival, Cpl. that they occasionally exchanged text 37 Oxycontin (oxycodone) is a Schedule II Whitley was advised that another police controlled substance. Id.; Office of Diversion Control, Oxycodone, Drug Enforcement Admin. 42 Codeine is a Schedule II controlled substance. (Mar. 2014), available at http:// 39 Methadone is a Schedule II controlled 21 CFR 1308.12. www.deadiversion.usdoj.gov/drug_chem_info/ substance. 21 CFR 1308.12. 43 A copy of a photograph of Jackson was received oxycodone/oxycodone.pdf. 40 The parties stipulated to the credibility of the into evidence. Gov’t Ex. 38; Tr. 70–71. 38 Soma (carisoprodol) is a Schedule IV controlled stipulated testimony. ALJ Ex. 20. Where applicable, 44 Marijuana is a Schedule I controlled substance. substance. 21 CFR 1308.14; Office of Diversion individual credibility determinations regarding live 21 CFR 1308.11. Control, Carisoprodol, Drug Enforcement Admin. testimony are set forth in the body of this 45 Photographs of the controlled substances, (March 2014), available at http:// recommended decision. weapons, and note found in Jackson’s car at the www.deadiversion.usdoj.gov/drug_chem_info/ 41 Two of the Government’s witnesses were time of his arrest were received into evidence. Gov’t carisoprodol/carisoprodol.pdf. presented in rebuttal. Ex. 39; Tr. 75–76.

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messages. SOT 1(a).46 On September 29, Chris W.50 Id. On November 7, 2014 Respondent.53 SOT 3(d). SA Mitchell 2014, Dr. Hambuchen exchanged a (Undercover Visit 1), SA Mitchell met stated that he presented the prescription series of text messages with Chris W with Chris W and presented him with to Chris W, who informed him that the wherein Chris W stated that he had a fraudulent prescription for pharmacy was out of hydrocodone and dispensed controlled substances to one hydrocodone and alprazolam. SOT 3(c). benzodiazepines, but that he would A.R. using Dr. Hambuchen’s name as According to SA Mitchell, during this have more during the first of the the prescriber and without a visit, Chris W instructed him to add the following week. Id. SA Mitchell recalled prescription. SOT 1(b); Gov’t Ex. 2; Tr. letter ‘‘R’’ to the DEA registration that Chris W was mumbling, but that 20–21. Dr. Hambuchen testified that he number on the scrip and to change the when SA Mitchell asked Chris W if he ‘‘did the prescription right,’’ Chris W did not know A.R.,47 has never issued last number to a ‘‘7’’ to make the false recommended that he use the letters a prescription for her, and that he wrote document appear more realistic. Id. In SA Mitchell’s estimation, Chris W’s ‘‘RA’’ instead of ‘‘RF,’’ which once a letter to the DEA (Hambuchen Letter), again, in SA Mitchell’s view, tutelage on the subject of making better at the request of DEA personnel, on demonstrated that Chris W was well fraudulent scrips demonstrated that November 12, 2014 memorializing that aware that the scrip was a fake. Id.; Tr. Chris W well knew the presented scrip fact. SOT 1(c); Gov’t Ex. 3; Tr. 22–24. 145–50. When SA Mitchell asked Chris The Government acquired and was fictitious. Id. The Government W again which letters to use, Chris W introduced a patient profile on file at introduced a copy of the fraudulent wrote the letters ‘‘RA’’ down on a piece the Respondent regarding A.R. that lists scrip that SA Mitchell presented to of paper. SOT 3(d). SA Mitchell testified Dr. Hambuchen as having authorized Chris W at the Respondent. Gov’t Ex. 6; that after he looked at what Chris W eleven prescriptions in her name. Gov’t Tr. 106. The scrip, dated November 7, wrote, Chris W scratched out the letters Ex. 4; SOT 20(d), (e); Tr. 185–86. These 2014, is made out for ‘‘Brian Jackson’’ with a pen. Id. eleven prescriptions were dispensed at (the name SA Mitchell used in his On November 19, 2014 (Undercover the Respondent between June and undercover visits) and specifies 120 Visit 3), SA Mitchell returned to the December 2014 48 and included the tablets of Norco and 60 tablets of Xanax. Respondent and attempted to fill controlled substances Hydroco/APAP Gov’t Ex. 6. During Undercover Visit 1, another fictitious prescription for and oxycodone. Gov’t Ex. 4. SA Mitchell was wearing audio and hydrocodone and alprazolam.54 SOT video recording equipment, but due to 3(e). Once again, SA Mitchell DEA Task Force Officer (TFO) Chad an equipment failure,51 nothing was encountered Chris W and handed him Wilson testified that he is currently recorded. SOT 3(c). Chris W filled the another fictitious scrip. Id. Chris W told stationed at the DEA Little Rock District fraudulent prescription and dispensed Mitchell that he ran out of hydrocodone Office (Little Rock DO) and that he the controlled substances to SA tablets two days earlier, and that more received and reviewed the Hambuchen Mitchell.52 Id. were not expected until the first of the Letter. SOT 15(b). After reading the On November 13, 2014 (Undercover month, because his supplier had placed letter, TFO Wilson interviewed Dr. limits on how much he could order. Id.; Visit 2), SA Mitchell attempted to fill Hambuchen, who confirmed its Gov’t Ex. 18 at 1–2. When SA Mitchell another fictitious prescription for contents,49 forwarded him a copy, and asked Chris W if the fictitious DEA hydrocodone and alprazolam at the reiterated that he did not know an A.R. number on the prescription SA Mitchell Id. TFO Wilson generated a report from presented was correct, Chris W the Arkansas prescription monitoring 50 SA Mitchell testified that the patient name he instructed him to change the last digit used on all of his undercover visits was ‘‘Brian program (PMP) on A.R. Id. Jackson.’’ Tr. 154. of the DEA number of the prescription DEA Special Agent (SA) Mark 51 DEA SA Michael Willett testified that he is to a ‘‘6.’’ SOT 3(e). Chris W started Mitchell testified that he is also an agent assigned to the Little Rock DO. SOT 4(a). SA counting, described the methodology in Willett’s area of responsibilities includes technical creating a DEA COR number to the assigned to the Little Rock DO. SOT surveillance issues, and he is familiar with the undercover agent, and volunteered that 3(a). He testified that on four occasions video equipment that was used in SA Mitchell’s the prescription that SA Mitchell just (specifically, November 7, 2014; undercover visits to the Respondent. SOT 4(b). SA Willett explained that the video equipment utilized handed him looked better than most he November 13, 2014; November 19, 2014; during the four undercover visits has an internal sees as the pharmacy.55 Id.; Gov’t Ex. 18 and December 4, 2014), he made battery that needs to be recharged in order for the at 4. Chris W also volunteered that he undercover visits to the Respondent. video recording device to work properly. Id. Although none of the audio/video recordings or believed that multiple law enforcement SOT 3(b). On each occasion, he transcripts made regarding the four undercover agencies were scrutinizing his presented fictitious controlled substance visits were the subject of objection by the pharmacy, but the record contains no prescriptions to the pharmacist on duty, Respondent, it is worth noting that some of the objective indication that he felt tapes contained time/date stamp anomalies. The anomalies were persuasively explained by the particularly inhibited by this revelation. 46 Dr. Hambuchen testified that although he and combined testimony of SA Willett and TFO Wilson. Gov’t Ex. 18 at 2. This crash course in Chris W had ‘‘in the past’’ texted each other a lot SOTs 4, 15. Regarding date/time discrepancies the finer points of creating phony scrips because they were friends, it was unusual in the last encountered in the recording of other undercover reinforced SA Mitchell’s view that Chris few years for him to receive a text message from visits in this case, SA Willett testified that when an Chris W. Tr. 24–25. internal battery has been allowed to go completely W was well aware that the scrip he 47 The record reflects some confusion regarding dead, the device loses track of the actual time. SOT A.R.’s first name; however, it is undisputed that Dr. 4(b). If the device’s battery was not checked prior 53 Audio and video recordings Hambuchen does not know A.R. and did not to use, the recording will reflect whatever time contemporaneously made by SA Mitchell and a prescribe any controlled substances to her. Tr. 23; value is stored in the unit. Id. In SA Willett’s corresponding transcript of Undercover Visit 2 were SOT 1(b), (c); 10(d). opinion, this is what happened with some of the received into evidence. Gov’t Exs. 11–14; Tr. 139– 48 The patient profile report for A.R. submitted by video recording devices operated by SA Mitchell on 40, 145. the Government spans the time period of January some of the undercover visits to the Respondent. Id. 54 Audio and video recordings 2012 through January 2015. Gov’t Ex. 4. Additionally, TFO Wilson provided credible contemporaneously made by SA Mitchell and a 49 DEA SA Thomas Fisher, another agent corroborating testimony. SOT 15(e)–(g). corresponding transcript of Undercover Visit 3 were stationed at the Little Rock DO, testified that he was 52 Photographs of the controlled substances and received into evidence. Gov’t Exs. 16–18, Tr. 141. also present with TFO Wilson during his interview corresponding receipts received by SA Mitchell 55 Chris W told SA Mitchell that his fraudulent of Dr. Hambuchen, and corroborated TFO Wilson’s during Undercover Visit 1 were received into scrip ‘‘looks a lot better than any of the other damn account of the interview. SOT 10(c), (d). evidence. Gov’t Exs. 7–8; Tr. 129, 131. things [he’s] seen.’’ Gov’t Ex. 18 at 3.

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presented was fraudulent. SOT 3(e). number of a clinic, and a DEA COR was owned by Chris W, whom she When SA Mitchell asked Chris W for his number. SOT 2(b). described to Officer Edgmon as the cell phone number so that he could On January 12, 2015, the Arkansas pharmacist/owner of the Respondent as ‘‘call you directly [so that] me and you Board of Pharmacy (Arkansas Pharmacy well as her boyfriend.61 SOT 8(b). [could] do business,’’ Chris W took the Board or APB) supplied DI Chupik with Pemberton consented to a search of undercover agent’s cell phone number a compact disc (APB CD) that contained Chris W’s car. A search of her purse instead. Gov’t Ex. 18 at 3. reports that APB personnel prepared in yielded numerous pill bottles, many of A copy of the fraudulent scrip that SA connection with the pharmacy. SOT which were unlabeled.62 SOT 8(c), (d); Mitchell presented to Chris W during 2(e); Tr. 117–19. Included in the Tr. 29–32; Govt. Ex. 19. One of these Undercover Visit 3 was received into materials provided in the APB CD was unlabeled bottles had pills that Officer evidence.56 Gov’t Ex. 6, 15; Tr. 110. This a completed DEA Report of Theft or Edgmon recognized as likely being scrip, dated November 19, 2014, Loss of Controlled Substances (DEA– alprazolam. SOT 8(d). Pemberton’s specified a prescription for 240 tablets 106), signed by Chris W, as the ‘‘Owner/ purse also contained bottles with labels of Norco and 60 tablets of Xanax. Gov’t Pharmacist-in-Charge.’’ 58 SOT 2(e); bearing her name, as well as other Ex. 6. During the course of Undercover Gov’t Ex. 53. The DEA–106 that was labeled bottles containing non- Visit 3, SA Mitchell asked Chris W how filed with the Arkansas Pharmacy Board controlled pills. Id. Officer Edgmon much it would cost to buy a 1,000-count on January 9, 2014 reflects (and subsequently took Pemberton into bottle of hydrocodone. SOT 3(e). Chris purports to report to DEA) that on custody for possession of a controlled W replied, ‘‘I don’t usually do that.’’ Id. August 5, 2013, the Respondent was substance, advised her of her Miranda When the undercover agent told Chris burglarized and that there was a theft of rights (which Pemberton acknowledged W that he was trying to make some extra controlled substances. Gov’t Ex. 53. DI she understood) and then questioned money, Chris W responded that what Chupik testified that a DEA–106 is a her about the pills he found in her the agent does with the pills after the form that, once prepared, must be filed purse. SOT 8(e). Pemberton told Officer prescription is filled is none of his with DEA.59 Tr. 120. On January 22, Edgmon that she had Xanax and business. Id. 2015, based on the information ‘‘hydros’’ (hydrocodone) and claimed On December 4, 2014 (Undercover contained in the DEA–106, DI Chupik that she had prescriptions for these. Id. Visit 4), SA Mitchell returned to the queried the DEA electronic DEA–106 Pemberton was transported to the Respondent, presented another phony Theft or Loss database and discovered Conway Police Department (CPD) for scrip to Chris W, and was dispensed 240 that no DEA–106 forms had been processing, and Officer Edgmon secured tablets of hydrocodone 10/325 mg and submitted to the DEA by the the contraband. Id. 60 tablets of alprazolam 2 mg.57 SOT Respondent in either 2013 or 2014. SOT In addition to corroborating many of 3(f). During Chris W’s interaction with 2(f); Tr. 120–22. Thus, although the the details of her arrest, Samantha SA Mitchell during this visit the two DEA–106 filed by the Respondent with Pemberton testified that she was Chris men discussed a possible handgun sale. the Arkansas Pharmacy Board ordinarily W’s girlfriend, and that it is her Over the course of discussion, the would/should/does indicate that the understanding that he is an owner of the undercover agent volunteered to Chris document had been filed with DEA to Respondent pharmacy. SOT 7(a). W that he was a ‘‘convicted felon.’’ supply DEA with notice of the loss,60 According to Pemberton, prior to the Gov’t Ex. 33 at 8. Chris W told the agent, this was not the case with this traffic stop, Chris W had given her ‘‘I can’t sell [a gun] to you because I purported burglary. controlled substances (specifically, 30 know you’re a convicted felon.’’ Id. Conway Police Officer Matthew hydrocodone 10/325 mg and 30 Xanax Chris W’s reservations concerning the Edgmon testified that on November 19, 2 mg) in unmarked bottles and without undercover agent’s felony conviction 2014, he initiated a traffic stop with a a prescription, and at the time of her revelation did not apparently awaken in white Tahoe that had no license plate. arrest, those medications were still in him any sense of heightened scrutiny SOT 8(b); Tr. 29. After some her possession. SOT 7(b). regarding the wisdom of dispensing conversation with the driver, Samantha CPD narcotics investigator Thomas powerful controlled substances to him. Pemberton, he ascertained that she had Kennedy testified that he interviewed Diversion Investigator (DI) Shelli a suspended driver’s license and that Pemberton at CPD after her arrest on Chupik testified that she is stationed at the (plateless) vehicle she was driving November 19 and that this interview the Little Rock DO. SOT 2(a); Tr. 107. was recorded.63 SOT 9(b); Tr. 33. During According to DI Chupik, it was she who 58 A copy of this DEA–106 was received into the interview, Pemberton stated that: (1) created the four fake controlled evidence. Gov’t Ex. 53; Tr. 119. she received at least some of the substances scrips that SA Mitchell used 59 Former Respondent PIC Terry Swaim testified controlled substances that were in her that the Respondent had a burglary in August of purse from Chris W; (2) she had during his undercover visits to the 2013 that resulted in the theft of approximately two Respondent. Chupik explained that each thousand Soma (carisoprodol) pills and some Xanax prescriptions for the controlled fake prescription contained the (alprazolam), and that both Tom Watson and Chris following fictitious information: a W were aware of the incident. Tr. 259–60. 61 The Government introduced a copy of an doctor’s name, the name and phone 60 DI Chupik clarified that the duty to file a DEA– insurance claim letter issued to ‘‘Jennifer Watson 106 occurs ‘‘pretty much immediately’’ after and Christopher Watson’’ on November 4, 2014, discovery of a theft or loss of controlled substances stating that on October 28, 2014, Pemberton was 56 DI Shelli Chupik, the creator of the fictitious and is not related to the dates when a pharmacy involved in a loss with a vehicle (a ‘‘2013 Infinity’’) scrip, explained that she deliberately included an registrant is required to conduct a biennial on their policy. Gov’t Ex. 27; Tr. 214–18. authorization for an amount of medication that was inventory. Tr. 122–24. Although DI Chupik testified Additionally, Pemberton told Investigator Kennedy inconsistent with the dosage instructions. Tr. 111– that she believed that the DEA–106 must be filed in the course of the interview at CPD that Chris W 13. The discrepancy is highlighted by a text note within seven days (Tr. 124), the DEA regulations was her boyfriend and her pharmacist. Tr. 38. added by DI Chupik on the copy of the exhibit actually provide that a ‘‘registrant shall notify [the 62 Photographs of the controlled substances found received (without objection) into evidence. Id.; local DEA Field Division Office], in writing, of [a] in Pemberton’s car at the time of her November 19, Gov’t Ex. 16. theft or significant loss of any controlled substances 2014 arrest were received into evidence. Gov’t Ex. 57 Audio and video recordings within one business day of discovery of such loss 19; Tr. 31–32. contemporaneously made by SA Mitchell and a or theft [and] shall also complete, and submit to the 63 A recording and corresponding transcript of the corresponding transcript of Undercover Visit 4 were Field Division Office in his area, [a DEA–106] interview of Pemberton conducted by Investigator received into evidence. Gov’t Exs. 31–33; Tr. 142– regarding the loss or theft.’’ 21 CFR 1301.76(b) Kennedy on November 19, 2014 were received into 43, 158–59. (2015). evidence. Gov’t Exs. 25–26; Tr. 36, 38.

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substances in unmarked bottles, and Kennedy did receive a fax (Fax 1) from labels the other day, but Investigator that she had received those controlled the Respondent, but contrary to Chris Kennedy again explained that he still substances from the Respondent where W’s representations on the phone, Fax needed to see the scrip. Id.; Tr. 55–56. her boyfriend, Chris W, was the 1 contained no scrips, but only a copy Chris W then clarified that he did not pharmacist; (3) she had just filled of two prescription labels (i.e., give the scrip to Pemberton because she prescriptions for hydrocodone and pharmacy fill stickers) from the did not want her to try to take it Xanax at the Respondent, and that she Respondent.65 Id.; Tr. 52–53. Further, somewhere else, but that he would have received the controlled substances from not only did Fax 1 contain labels one of his technicians look up the scrip Chris W in unmarked bottles; and (4) instead of scrips, but in Investigator and send it over. SOT 9(i). she was prescribed 30 hydrocodone 10/ Kennedy’s review of those prescription Later in the day, Investigator Kennedy 325 mg and 30 Xanax 2 mg, but was not labels, he determined that the labels did did receive another fax (Fax 2) from the able to name the doctor who prescribed not even correspond to the information Respondent but once again, the fax had the pills. SOT 9(c); Gov’t Ex. 26 at 6– Chris W had provided him during their was not a scrip, but merely a page of 7. phone conversation about the controlled lined paper covered in scribbles, which, Investigator Kennedy telephoned substances he said he had dispensed to based on the investigator’s experience, Chris W during the afternoon of the day Pemberton the previous day. SOT 9(g). appeared to him to be a page from a Pemberton was apprehended and Instead, the labels with Fax 1 reflected notepad customarily used for call-in recorded that conversation.64 SOT 9(d). prescriptions that had been filled on type prescriptions.68 SOT 9(j); Tr. 55, When Investigator Kennedy informed October 9, 2014 (not November 19, 58–59. The Fax 2 notepad page did not Chris W that Pemberton had been 2014), and had been issued for 75 contain any reference to a prescription arrested, Chris W replied that he only alprazolam 2 mg tablets and 75 issued to dispense medication to vaguely knew her. Specifically, Chris W Hydroco/APAP tablets 10/325 mg (not Pemberton on November 19. SOT 9(j). said ‘‘I think I know who she is,’’ and 30 tablets of each drug as Chris W had Instead, the only reference to Pemberton amorphously described her as ‘‘blonde’’ stated during the previous day’s phone on the notepad page appeared in the and ‘‘kinda cute.’’ SOT 9(e). Chris W call). Id. Moreover, the labels stated that upper right-hand corner of the fax, told Investigator Kennedy that he the prescriptions had been issued by a which included a handwritten date that thought he recalled that Pemberton may ‘‘Dr. Arnold’’, not a ‘‘Dr. Humbard.’’ Id. appeared to be either ‘‘10–4–14’’ or ‘‘10– have come into the Respondent that Furthermore, an examination of the 9–14’’; beneath that date appeared to be morning, and he admitted that on or labels that were provided indicated that the name ‘‘Samantha Pemberton,’’ the about November 19 he allowed her to both directed that no refills remained on text ‘‘Xanax 2mg, TID, #75’’, ‘‘Narco 10/ ‘‘borrow’’ some hydrocodone and Xanax the prescriptions. Id. Thus, even on 325’’, some additional writing that without a prescription, and that the their face, the prescriptions supplied by Investigator Kennedy was unable to pharmacy had ‘‘loaned’’ her some pills. Chris W in Fax 1 that were purportedly decipher, and then ‘‘#75’’. Id. The name Id. During the call, Chris W allowed that used for the October 9, 2014 dispensing ‘‘James Arnold’’ is written at the bottom ‘‘we let her borrow a few because she to Pemberton were no longer valid for of the notation. Gov’t Ex. 49. was out,’’ and ‘‘I know we loaned her refilling anything on November 19, 2014 Investigator Kennedy was quite clear some hydrocodone and seemed like and could not have been properly used that he had plainly articulated that he Xanax, maybe 2 mg.’’ Id. When for that purpose. Id. needed to see the scrips. Tr. 57–58. Investigator Kennedy asked Chris W On November 21, three days Investigator Kennedy testified that on how much he had dispensed to following Pemberton’s arrest, January 2, 2015, he called Pemberton Pemberton, he responded, ‘‘I want to say Investigator Kennedy contacted again to remind her that he had still not like 30 of each’’ ‘‘just because she gets Pemberton and notified her that he had received a scrip. SOT 9(k). In response, like 90 at a time.’’ Id. Chris W assured not received scrips for the drugs she she stated that she would try to get the Investigator Kennedy that the pharmacy received on November 19 from the prescription and deliver it to him. Id. was ‘‘just waiting on [the doctor’s office] Respondent.66 SOT 9(h). In response, Four days later, on January 6, 2015, to call back because that office is Pemberton told Kennedy that she Pemberton brought Investigator notoriously slow.’’ Id. believed that Chris W had sent them. Id. Kennedy two scrips, both of which bore Investigator Kennedy made repeated When Investigator Kennedy explained the date October 9, 2014, and a requests to Chris W and Pemberton to that he had not received the scrips, signature from a Dr. James Arnold.69 provide scrips for the 30 hydrocodone Pemberton assured him that she would Tr. 61–63. The Government also pills and 30 Xanax pills that Chris W take care of it. Id. Pemberton called introduced a copy of Pemberton’s admitted he had dispensed to Investigator Kennedy back later in the patient profile from the Respondent, Pemberton on or about November 19, day and told him that Chris W would which indicates that two prescriptions but neither supplied any fax the scrips. Id. Sometime later in the (alprazolam and hydroco/APAP) were documentation. SOT 9(f). Chris W also day, following his phone call with dispensed to Pemberton on October 9, provided Investigator Kennedy with Pemberton, Investigator Kennedy 2014. Gov’t Ex. 24. According to the conflicting information about the telephoned Chris W at the Respondent patient profile, James Arnold, M.D. is identity of Pemberton’s prescribing and recorded the call.67 SOT 9(i). Chris listed as the prescriber for both physician. SOT 9(g). Initially, Chris W W insisted that he had faxed over the prescriptions. Id. told him that the prescribing physician In her testimony, Pemberton indicates was a Dr. Humbard and agreed to fax a 65 A copy of Fax 1 was received into evidence. that on January 6, 2015, approximately copy of the prescription. Id. Gov’t Ex. 48; Tr. 54. two months after her arrest, she did give On November 20, the day following 66 A recording and corresponding transcript of Investigator Kennedy scrips that Investigator Kennedy’s phone call with Pemberton the arrest and phone call, Investigator were received into evidence. Gov’t Exs. 66–67; Tr. corresponded to the controlled 47–50. 64 A recording and corresponding transcript of 67 A recording and corresponding transcript of 68 A copy of Fax 2 was received into evidence. Investigator Kennedy’s November 19, 2014 phone Investigator Kennedy’s phone call with Chris W Gov’t Ex. 49; Tr. 59–60. call with Chris W were received into evidence. were received into evidence. Gov’t Exs. 22–23; Tr. 69 Copies of these scrips were received into Gov’t Exs. 20–21; Tr. 41, 43. 44–46. evidence. Gov’t Exs. 51, 52; Tr. 64–66.

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substances in her possession on the day pharmacy shelf, the bottle disappears anything else illegal in his vehicle, she was arrested. SOT 7(d). The scrips from view, and Horton can be seen Horton gave no response, but an Pemberton gave Investigator Kennedy shoving something into his jacket inventory search of the truck revealed a were dated October 9, 2014 and were pocket and walking out of the blue tote bag that contained a stock issued for 75 tablets of hydrocodone 10/ pharmacy. Id. at 2–6. A camera outside bottle of hydrocodone 77 and two 100- 325 mg and 75 tablets of alprazolam 2 the pharmacy picks up Horton throwing count methadone 10 mg stock bottles.78 mg, and bore the purported signature of something into a dumpster and placing SOT 11(d); Tr. 83–84. Horton also had Dr. James Arnold of the Baptist the aforementioned blue tote 72 into a $1,529 in cash on his person, and the Emergency Medicine Clinic. Id. white pickup truck. Id. at 10. methadone stock bottles seized had the Dr. James Arnold, M.D., testified that Upon Horton’s return to the Respondent’s pharmacy stickers on he is a doctor practicing at the Baptist pharmacy, Chris W can be seen placing them. SOT 11(d), (e). Additionally, Springhill Clinic in North Little Rock, a stock medication bottle on the counter Trooper Growns testified: Arkansas. SOT 22(a). He stated that by for Horton to count out into multiple We found a pair of tennis shoes that also virtue of the fact that he practices in an amber prescription bottles, one of which had another bottle of pills that were mixed emergency room, he does not prescribe he hands to Chris W, and one of which in. We also found a meth pipe and a baggie more than twenty hydrocodone tablets he places in his own pocket. Id. at 7– of stuff that appeared to be meth as well, and at one time. SOT 22(b). Dr. Arnold also 13. Horton then fills a pharmacy bag there was a couple of other [C]oke cans as indicated that he has checked his with the amber prescription bottles and well that you could unscrew the lid and had records and determined that he has not again leaves the pharmacy. Id. at 13. A false compartments in them. treated and does not know a person camera outside the pharmacy captures Tr. 84. named Samantha Pemberton.70 SOT Horton pulling away from the pharmacy DI Inez Davis testified that she is 22(c). On January 7, 2015, Investigator in the white pickup truck. Id. at 11. currently assigned to the Little Rock DO. Kennedy turned over to TFO Wilson the Other photographs depict controlled SOT 12(a); Tr. 213. The certified copy two scrips bearing Dr. Arnold’s name substances that were in the blue tote of the Respondent’s incorporation from that Samantha Pemberton had given upon its subsequent seizure and the State of Arkansas that DI Davis him. SOT 15(c). Both prescriptions had inventory. Id. at 11–13. procured reflects that Chris W is listed stickers on them indicating that they Shortly after Horton departed the among the Respondent pharmacy’s were filled on October 9, 2014, and both Respondent, he was pulled over by officers, and specifically is listed as were marked ‘‘no refills.’’ Id. Arkansas State Trooper First Class vice-president, controller, and board DEA Task Force Officer (TFO) Robert (Trooper) Kevin Growns. Trooper member of the Respondent. Gov’t Ex. Puckett testified that he is a member of Growns testified that when he observed 50; SOT 12(b); Tr. 218–19. the Beebe, Arkansas Police Department, Horton’s white truck change lanes twice On January 27, 2015, a federal search is cross-designated as a DEA TFO, and without the benefit of a turn signal,73 he warrant was executed on the is currently stationed at the Little Rock initiated a traffic stop. SOT 11(b); Tr. Respondent simultaneously with the DO. SOT 5(a); Tr. 91. TFO Puckett 77–78. At the time of the stop, Horton service of the OSC/ISO that initiated reviewed surveillance videos of the handed the trooper Chris W’s driver’s these proceedings (pharmacy search interior and exterior of the Respondent license, eventually explaining that he warrant execution). Little Rock DO that were recorded on January 20, 2015, had the license so he could use Chris Group Supervisor (GS) Lisa Barnhill and testified that he isolated screen W’s credit card. SOT 11(b); Tr. 78–79. testified that during the pharmacy captures from the video. SOT 5(c); Gov’t Horton ultimately did present his own search warrant execution, it was she Ex. 36. Chris W and his friend, Eric driver’s license,74 a run of which who coordinated and supervised the Horton, are depicted in the video through the Arkansas Crime Information search of the pharmacy’s records. SOT footage. The Government introduced the Center (ACIC) database 75 revealed two 14(c). DEA and other law enforcement screen captures of the surveillance outstanding warrants, one of which was personnel associated with the search videos created by TFO Puckett, as well active. SOT 11(c). In response to a were able to locate patient profiles for as TFO Puckett’s written narrative question from Trooper Growns, Horton Eric Horton, Brian Jackson (the describing the actions of Horton and indicated that he was not armed, but undercover identity used by SA Chris W. Tr. 98; Gov’t Ex. 36.71 that there were two pistols in the truck Mitchell), Samantha Pemberton, and According to TFO Puckett’s he was driving. Id.; Tr. 81. Horton was A.R. However, although the vehicle he (unchallenged) account, the surveillance searched for weapons, handcuffed, and was driving on the night of his arrest tapes show Chris W handing Horton a placed into the trooper’s vehicle.76 SOT contained stock bottles of controlled bottle of medication, some of the 11(c). Trooper Growns found two substances adorned with labels from the contents of which Horton pours into an handguns sitting on the rear floorboard Respondent pharmacy, there was no amber prescription bottle. Gov’t Ex. 36 (one of which had a chambered round). patient profile for Joseph Jackson at the at 1–2. Horton can then be seen placing Tr. 83. When asked if there was pharmacy.79 Id. GS Barnhill also related items into a blue tote bag on the floor. that she conducted an audit of Horton then pulls a stock bottle of 72 A blue tote filled with controlled medications Respondent pharmacy records obtained medication from the shelf, shows the was seized from the white pickup truck Horton was during the pharmacy search warrant bottle to Chris W, puts it into a driving at the time of his arrest later that evening. Tr. 83. pharmacy bag, and drops the pharmacy 77 In Trooper Growns’s estimation, it was a ‘‘like bag with some other items into a blue 73 Trooper Growns testified that a traffic citation [a] thousand count bottle of hydrocodone[ ] . . .’’ tote bag. Id. at 2. Horton takes another was issued regarding the failure to signal violation Tr. 83. as well as driving without insurance. Tr. 85. 78 Photographs of the controlled substances found stock medication bottle from a 74 Tr. 79–80. in Horton’s vehicle were received into evidence. 75 In his live testimony, Trooper Growns stated Gov’t Ex. 35; Tr. 87–89. 70 TFO Wilson ascertained from Dr. Arnold that that the license check was initiated through the 79 This testimony is consistent with the he is not Pemberton’s doctor and did not issue the Federal Bureau of Investigation’s National Crime recollection of DI Pamela Lee and DI Davis, who scrips. SOT 15(d). Information Center (NCIC) database. Tr. 79. The were also present. SOTs 20, 12(c), (d). The patient 71 A clearer version of this exhibit was variance is not material. profiles seized that day were received into subsequently substituted in the record with the 76 A copy of Horton’s arrest photograph was evidence. Gov’t Exs. 4, 24, 37; Tr. 187, 188–89, 191– assent of the Respondent. Tr. 387–88. received into evidence. Gov’t Ex. 34; Tr. 86–87. 92; see also SOT 18.

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execution, focusing on varying strengths W’s, Eric Horton, who was also not Like Pharm. Tech. Gilbert, Pharm. Tech. of ‘‘oxycodone, hydrocodone, employed at the pharmacy. SOT 19(f). Burns affirmed that neither Eric Horton alprazolam and generic Dilaudid.’’ 80 Tr. When DI Vazquez-Lopez asked Pharm. nor Joseph Jackson is an employee of 181. According to GS Barnhill, her audit Tech. Wood for the Respondent’s most the Respondent.83 SOT 16(c). She of just those medications yielded a recent physical inventory records, believes that Horton is a friend 84 of ‘‘shortage of close to a quarter million Pharm. Tech. Wood stated that Chris W Chris W’s, and she has seen Horton take pills.’’ Id. Barnhill also testified that the had taken the Respondent’s last bottles of controlled substances off of search she conducted of all of relevant inventory records after a state shelves at the Respondent and place paper and electronic records at the Little inspection the previous year, and that them in his pockets. Id. Pharm. Tech. Rock DO reflects no report of theft or there were no other copies in the Burns further testified that several loss of controlled substances filed with Respondent pharmacy. SOT 19(i). weeks before the pharmacy search DEA by the Respondent between Pharm. Tech. June Gilbert testified warrant execution, Chris W and Horton January 1, 2012 and January 22, 2014. that she has been a pharmacy technician removed a large number of invoices and SOT 14(a), (b); Gov’t Ex. 63; Tr. 161, at the Respondent for approximately hard copies of prescriptions that were 175–76. thirty-one years, and that it has been her previously filled from the pharmacy, but DI Carolina Vazquez-Lopez testified experience that controlled substances she does not know what became of the that she is assigned to the Little Rock frequently disappear from the documents they took. SOT 16(g). DO, that she was present at the Respondent overnight. SOT 17(a), (c). TFO Eli Fowlkes testified that he is a pharmacy search warrant execution, and Pharm. Tech. Gilbert also related that detective with the Benton, Arkansas that, as she was directed to do, she she has seen Chris W repeatedly give Police Department and is cross- gathered all pertinent required DEA out pills without a prescription, and designated as a DEA Task Force Officer records from the Respondent, including that Eric Horton and Joseph Jackson are stationed at the Little Rock DO. SOT DEA Order Form 222s, Controlled not employees of the Respondent. SOT 21(a); Tr. 197–98. TFO Fowlkes testified Substance Ordering System (CSOS) 17(b), (c). that on January 27, 2015, he participated records, purchase invoices, DEA Form Pharm. Tech. Alyssa Burns testified in the execution of a search warrant at 41/Registrants Inventory of Drugs that she has been a pharmacy technician Chris W’s residence (Chris W residence Surrendered, DEA Form 106/Theft or at the Respondent for approximately search warrant execution). SOT 21(b); Loss of Controlled Substances, Power of one year. SOT 16(a). Similar to Pharm. Tr. 199–200. During the search of Chris Attorney, and Inventory Records. SOT Tech. Gilbert’s experience, Pharm. Tech. W’s house, TFO Fowlkes discovered 19(a)–(c). DI Vazquez-Lopez testified Burns testified to her observation that numerous controlled substance scrips, that during the pharmacy search items delivered in medication which he photographed and inventoried warrant execution she was assisted in shipments to the Respondent—mostly into DEA custody. SOT 21(c), (d); Gov’t gathering records by Bettie Wood, a oxycodone—regularly turn up missing Exs. 41, 54–62; Tr. 200–07. pharmacy technician (Pharm. Tech.) the morning after delivery. SOT 16(b). It The Government also presented the employed at the Respondent. SOT 19(d). is Pharm. Tech. Burns’s opinion that testimony of pharmacist Tracy Swaim. DI Vazquez-Lopez testified that Pharm. orders for controlled substances placed Swaim testified that he is currently Tech. Wood told her that the by the Respondent are excessive in light employed as a part-time 85 pharmacist at Respondent only had partial invoices of the number of prescriptions that are the Respondent, but up until October for December 2014 and January 2015 actually filled there. Id. According to 10, 2014, he had worked there as a full- because Chris W’s friend, Eric Horton (a Pharm. Tech. Burns, the Respondent time pharmacist for twenty-six years, non-employee), had removed all of the usually reaches its controlled substance and was the Respondent’s pharmacist- other invoices at Chris W’s request in limit with McKesson—one of its in-charge (PIC) until January of 2012. Tr. early December 2014. SOT 19(e). pharmaceutical suppliers—on the ninth 232–33. DI Vazquez-Lopez asked Pharm. Tech. day of each month.81 Id. Swaim explained that controlled drug Wood whether the Respondent had any Pharm. Tech. Burns also stated that purchases at the Respondent are reported thefts or losses in the last two Chris W has ordered her to fill conducted through the DEA Controlled years. SOT 19(f). Pharm. Tech. Wood prescriptions for hydrocodone, Xanax, Substance Ordering System (CSOS) stated that there had been an incident in Soma, and promethazine cough syrup program, and that a single password, either August or October 2013 when two without a hard copy of a prescription, issued in Swaim’s name, is and has 1,000-count bottles of carisoprodol were and that he once directed her to fill four been used by all Respondent employees stolen. Id. When DI Vazquez-Lopez identical prescriptions for Xanax, who order controlled medications. Tr. asked Pharm. Tech. Wood for a copy of hydrocodone, and Soma for a customer 245–48; see also Tr. 365–66. According the DEA Form 106/Theft or Loss Form, (B.E.) in a single week.82 SOT 16(e). to Swaim, the Respondent purchased she stated that Chris W would have it. Pharm. Tech. Burns has seen Chris W controlled substances from the Id. When DI Vazquez-Lopez asked leave the pharmacy with drugs in his McKesson Drug Company (McKesson), Pharm. Tech. Wood where the backpack, and has actually seen a stock Top Rx, and The Harvard Drug Group. controlled substance prescriptions were bottle of hydrocodone with tablets in Tr. 248; see also Gov’t Exs. 42–47, 68. stored, she explained that the Chris W’s open backpack. SOT 16(f). Swaim explained that prior to the prescriptions were stored in the back commencement of Chris W’s office, but only as far back as April 2014 81 The Government introduced into evidence involvement with the Respondent, because prescriptions prior to 2012 were copies of lists generated by the Respondent’s McKesson was able to provide an lost in a fire, and the balance had been distributors indicating the products sold to the adequate supply to keep up with Respondent between 2013 and 2015. Gov’t Exs. 42– taken away by another friend of Chris 43, 68 (McKesson); 44–45 (Harvard); 46–47 (Top Rx); Tr. 167, 169, 172–73. 83 Long-time Respondent PIC Tracy Swaim also 80 Dilaudid (hydromorphone) is a Schedule II 82 A copy of B.E.’s patient profile at the testified that Jackson was never an employee at the controlled substance. 21 CFR 1308.12; Office of Respondent, as well as copies of prescriptions Respondent. Tr. 235; Gov’t Ex. 38. Diversion Control, Hydromorphone, Drug issued to B.E., were introduced into evidence. Gov’t 84 Samantha Pemberton testified that has seen Enforcement Admin. (July 2013), available at Ex. 65; Tr. 194. B.E.’s patient profile does indicate Chris W supply Horton with controlled substances http://www.deadiversion.usdoj.gov/drug_chem_ that this was the case from January 2–8, 2014. Gov’t at parties at Chris W’s residence. SOT 7(c). info/hydromorphone.pdf. Ex. 65 at 9. 85 Tr. 266.

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demand, but that resort was had to the I just told him I was not going to be unbiased, and is fully credited in this other two suppliers when the amount of pharmacist-in-charge.... I said that I can’t recommended decision. controlled drugs ordered by the sleep at night, and I’m not—I don’t want to The Government also presented the Respondent increased by one-third 86 go to jail over something. And Tom [Watson] testimony of Grant Goode, Tom said don’t worry, nobody’s going to jail. If Watson’s nephew 91 and a former staff and rose to a level exceeding anybody does, I will. McKesson’s quantity limits. Tr. 248–51. pharmacist at the Respondent. Tr. 270– In the course of the hearing, Swaim Tr. 253. Swaim testified that he 71. Goode testified that he started at the was shown photographs of Joseph completed the paperwork and inventory Respondent working one day in Jackson and Eric Horton and affirmed required to hand over PIC control and November 2014 and then for that neither man had ever been an accountability of the pharmacy to Chris approximately two months, starting in employee of the Respondent. Tr. 235– W, and that notwithstanding this mid-December 2014, working on a 36; Gov’t Ex. 38, 34. Swaim testified that diminution in his responsibilities, schedule that increased from about although he did not know Jackson at all, neither his compensation nor his hours twenty-five hours per week to ninety-six he did recognize Horton as a man that were reduced. Tr. 254–55, 266–67. hours per two weeks. Tr. 271. Goode periodically came to the store to pick up Swaim also recounted a conversation recalled that during this time, his cousin cream that the pharmacy regularly he overheard between long-term Chris W would enter the pharmacy for ordered to manufacture Redneck Respondent Pharm. Tech. June Gilbert 88 varying amounts of time, generally less Remedy, a cream produced by a and Watson that occurred in September than twenty-five hours per week, and do company called Matlon, Incorporated of 2014,89 approximately two years and non-pharmacist work. Tr. 273–74. (Matlon).87 Tr. 236–40; see also Gov’t nine months after surrendering his PIC Goode testified that while working at Ex. 69. According to Swaim, although responsibilities. Swaim testified that he the Respondent, he fielded several Horton was not an employee and not a heard Pharm. Tech. Gilbert tell Watson telephonic inquiries from prescribing pharmacist, he was routinely permitted that his son, Chris W, was ‘‘giving physicians that led him to discover that into the restricted pharmacy area, and away’’ medication. Tr. 256–57. In pharmacy patient profiles described he regularly made deliveries of response to what he heard, Swaim told numerous Schedule II controlled prescriptions (including controlled Watson that he (Swaim) ‘‘just can’t take substance dispensing events where no substances) to customers in the this anymore [and that he was] going to hard copy of the scrip was present in the file and where the purported Mayflower area for the Respondent. Tr. give notice . . . if you don’t stop [Chris prescribing doctor had no recollection 237–39. Swaim testified that to his W].’’ Tr. 257. In reply, Tom Watson of authorizing the medication. Tr. 274– knowledge, Horton worked with Chris asked Swaim not to leave and assured 75. According to Goode, when he W in connection with Chris W’s Matlon him that he would ‘‘put a stop to it.’’ Id. examined the pharmacy files, he business. Tr. 236. According to Swaim, ‘‘he looked me in the eye and said ‘trust me,’ and I said discovered other occasions where Swaim also related that the controlled substances had been Respondent was burglarized in August ‘okay, I will.’ ’’ Id.; see also Tr. 265. Swaim testified that four days later, dispensed but no scrip hard copy was of 2013, resulting in the theft of retained. Tr. 275–76. Based on what he approximately two thousand upon ascertaining from the pharmacy staff that, notwithstanding Watson’s discovered, Goode began contacting carisoprodol pills and some Xanax. Tr. prescribing doctors on his own and 259–60. The police were notified, and assurances to the contrary, nothing had changed about the improper manner in discovered ‘‘dozens’’ of cases were both Chris W and the Respondent’s controlled substances were dispensed owner, Tom Watson, were aware of the which (now PIC) Chris W was executing his responsibilities as a pharmacist, he and no hard copy scrip was present. Tr. incident. Tr. 260. 276. Goode testified that when he Swaim explained that since his called Watson and gave two weeks’ 90 brought this issue to the attention of retirement approximately ten to twelve notice. Tr. 257. Swaim’s testimony (which was not Watson, his response was that the scrips years ago, the Respondent’s owner, Tom ‘‘must have been put in the wrong place Watson, would visit the business (which the subject of a stipulation regarding content or credibility) was detailed, in the files. Maybe the girls, maybe the included the Big Star grocery store in technicians misplaced the which the pharmacy was located) internally consistent, plausible, and presented no objective factual basis prescriptions.’’ Tr. 277. Goode kept approximately once a week. Tr. 240–41. checking pharmacy files and made According to Swaim, prior to his upon which to challenge it for bias. Simply put, Swaim has nothing to gain inquiry of the technicians. Tr. 278. retirement, Watson worked two days per Goode also related that on two or lose based on the outcome of this week part-time as a relief pharmacist occasions he observed Chris W take case. The fact that he served the while Swaim served as the full-time thousand-count stock bottles 92 of Respondent for twenty-six years as its PIC. Tr. 241–44. hydrocodone and place them into his PIC and was even hired back after the Swaim testified that in January of backpack. Tr. 278. Further, Goode stated 2012, he informed Watson that his pharmacy search warrant execution, is that on one occasion, Tom Watson was observation of improper controlled powerful evidence that even Watson present and observed Chris W pack the substance refills approved by Watson’s knows that Swaim is a man who can be stock bottle into his backpack. Tr. 280. son, Chris W, sufficiently troubled him trusted. The witness’s testimony Goode testified that he called the that he was resigning as the PIC. Tr. presented as thoughtful, coherent, and Pharmacy Board on December 17, 2014 251–56. Swaim recounted the and related his suspicions regarding 88 conversation in this manner: See SOT 17. diversion as well as some concerns he 89 Tr. 265. Although Swaim initially indicated that the date was in September of 2015 (a date in had about whether Chris W had an 86 Tr. 262–63. the future), he subsequently corrected the date to 87 As discussed in greater detail infra, Matlon is 2014. 91 Tr. 274. a company that is jointly owned and managed by 90 The record does not reflect any other area of 92 Goode testified that this size bottle of Chris W and Glenn Wood, a pharmacist who now contention between Swaim and Watson and in fact, medication was used to contain stock and fill works at the Respondent and previously worked at Watson hired Swaim back to work part-time at the prescriptions, but would never be a quantity that a another pharmacy owned by Tom Watson in Respondent after the pharmacy search warrant would be dispensed to an individual patient. Tr. Mayflower, Arkansas. Gov’t Exs. 69, 70. execution. Tr. 266. 279–80.

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addiction problem. Tr. 281. According Tr. 291–92. Watson did eventually let diversion issue in any pharmacy where to Goode, personnel at the Pharmacy Goode know that Glenn Wood would be he has been employed, and that he has Board advised him that they would be taking his hours. Tr. 290. Watson never been subject to disciplinary dispatching someone to investigate the subsequently telephoned Goode and action. Tr. 393, 424–25, 430, 443; see pharmacy, and that in the meantime, he told him he was ‘‘upset’’ about also SOF 23(b); Gov’t Ex. 12. should ‘‘just stay put.’’ Tr. 282. Goode statements Goode had made to DEA, Wood testified to a relatively lengthy explained that on January 2, 2015, in the and that he felt Goode ‘‘had hung him history of working on and off for the midst of ‘‘staying put,’’ one of the out to dry.’’ Tr. 291. Watsons over the course of his nine Respondent’s pharmacy technicians Goode’s testimony was not the subject years 97 as a pharmacist. When he was brought to his attention forged Schedule of a stipulation regarding content or in school at the University of Arkansas II scrips that had been dispensed with credibility, but the testimony was for Medical Sciences, he completed a Goode’s initials on the label. Tr. 282–83. sufficiently detailed, plausible, and one-month pharmacy internship When Goode showed the forged scrips internally consistent to be fully credited working for Chris W. Tr. 391, 478. After to Watson, the latter suggested that in this decision. Although there were graduating in 2006, Wood worked as a (long-time pharmacy technician) ‘‘June vague references to some unrelated, pharmacist in several Watson-owned [Gilbert] must be doing that.’’ Tr. 283. historical family acrimony that did not pharmacies, rotating between his Goode pressed him on the issue and specifically involve the Watsons, there Mayflower, Morrilton, and Perryville reminded him that his son, Chris W, was no evidence that would support any (the Respondent) pharmacies. Tr. 392– had access to a laptop that allowed him level of bias that impacts on this 94, 453, 475. to log in and print out pharmacy witness’s credibility, and his testimony Wood testified that in 2008 or 2009 he paperwork. Tr. 283. That day, Goode is fully credited in this recommended briefly moved to Utah to accept a faxed copies of the fraudulent scrips to decision. pharmacist position there, but the the Pharmacy Board, and followed up The Respondent called three adventure was short-lived, and he with a phone call to both the Pharmacy witnesses in its case-in-chief: Tom returned to Arkansas. Tr. 395. Upon his Board and DEA. Tr. 284–85. Watson, the pharmacist-majority- return, he resumed employment for On February 5, 2015, several days owner 94 of the Respondent; Glenn Tom Watson as the PIC of his Morrilton after the (January 27) pharmacy search Wood, the pharmacist Watson selected Food and Drug pharmacy (Morrilton) for warrant execution, Goode confronted to succeed his son as the PIC; and three years. Tr. 394–95. When Watson his cousin, Chris W, with his Brenda McCrady,95 an official from the sold the Morrilton pharmacy to a rival suspicions. Tr. 286. By Chris W’s Pharmacy Board, who attested to the chain, Wood spent three years with a demeanor, Goode got the sense that his fact that neither of these professional pharmacy unaffiliated with the cousin had identified him as DEA’s pharmacists has been subject to Watsons. Tr. 396. Wood explained that source, and shortly thereafter, Chris W discipline before that body. in December 2014 he made informed him that he would be Glenn Wood is the pharmacist who arrangements with Chris W to return to substituting Goode with a pharmacist supplanted the hours worked by Grant the Respondent on a part-time basis,98 named Glenn Wood. Tr. 287. Goode also Goode at the Respondent after Grant but that he did not report for work until recalled being approached by Tom Goode registered concerns about the day after the pharmacy search Watson near the end of January 2015 diversion there to the Pharmacy warrant execution. Tr. 396, 398. Wood and told that customers had registered Board,96 and the individual who has testified that although the final complaints about his unwillingness to been selected by the Respondent to paperwork is still pending at the dispense scrips they had presented, and assume the duties of its PIC Pharmacy Board,99 he is currently acting that one customer was even concerned permanently. Tr. 313. Wood testified as the PIC at the Respondent. Tr. 398. that Goode would ‘‘turn [him] into that he has his Pharm. D. degree, has According to Wood, the appropriate DEA.’’ Tr. 288. Goode got the sense that been a licensed pharmacist in Arkansas application was filed at the Pharmacy Watson was disappointed in him for for approximately nine years, and is a Board days prior to the hearing. Tr. 399, declining to fill the scrips as presented. member of the Arkansas Pharmacists 443. Tr. 289. Association. Tr. 391, 393. Wood stated Wood opined that where a pharmacy Pharmacist Glenn Wood and Goode that he has never been aware of a is operating without an involved and communicated by text and phone a few active owner, diversion control days later. Tr. 291–92. When Goode against law enforcement officers on its case-in- responsibility ‘‘starts with the PIC.’’ Tr. asked Wood about his hours for the chief, and in an exercise of commendable candor, 415. Wood testified that he believes that notified the tribunal at the outset of the case that week, Wood related his understanding in proceedings unrelated to this case, a United it would be difficult to discover a PIC that Watson had planned to let Goode States Magistrate Judge had declined to credit this engaging in unethical or illegal behavior know that his services would no longer testimony from Goode. Tr. 11; ALJ Ex. 21. The unless the PIC ‘‘was doing it obviously be required at the pharmacy. Id. The parties acquiesced in official notice (see 5 U.S.C. in front of everyone that worked there.’’ 556(e) (2012)) that this testimony had previously conversation turned somewhat heated, been found unsupported by a United States Id. He stated that because the PIC is in and Goode essentially accused Wood of Magistrate Judge in an unrelated proceeding (Tr. charge of diversion control at a looking the other way in the face of 304), and the order issued by the Magistrate Judge, pharmacy, he doesn’t know a way to misconduct being committed by Chris which denied the Government’s motion to revoke ‘‘safeguard’’ against such behavior Chris W’s bond based on these comments W at the Respondent as well as the purportedly uttered by his sponsor (and father) except by having another employee (for Mayflower pharmacy, where Wood and Watson, was received into evidence. Resp’t Ex. 14; Chris W previously worked together.93 Tr. 306. Because the Government did not offer the 97 Tr. 392. purported threat in its case-in-chief, a disposition 98 Wood testified that he only desired part-time 93 Goode also testified that Tom Watson told him of this case does not require that a credibility issue employment at the Respondent because he wanted that ‘‘he would like to kill a couple of DEA agents.’’ on this statement be rendered, and it forms no basis additional time to pursue a career in professional Tr. 302. Even assuming that Watson could have of this recommended decision. bass fishing. Tr. 397–98. been speaking during a time of some agitation, such 94 Tom Watson testified that he owned fifty-eight 99 Wood had previously been approved by the a statement demonstrates a deplorable and and one half percent of the Respondent. Tr. 314. Arkansas Board as a PIC at Morrilton. Tr. 399. He dangerous lack of judgment on his part. The 95 SOT 23; Gov’t Ex. 12; Tr. 320. testified that he had taken an examination when he Government did not offer this not-too-veiled threat 96 Tr. 281, 291–92. was initially designated as a PIC. Tr. 475.

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example, a pharmacy technician) also reviews the footage at the Respondent. that it’s up for sale and the fact that the signing off on checking drugs in and Tr. 424. owner, Tom Watson, will probably not get conducting an inventory (a measure Wood also explained the role of his DEA registration back . . . I really don’t which he stated he would implement Arkansas’s prescription monitoring feel comfortable, right now, putting my name should the Respondent again dispense down as PIC of this place . . . I’m not even program (PMP), in which pharmacies sure I’ll be here in another month. controlled substances). Tr. 416–18, 448. are required to submit a weekly report Wood testified has reviewed a written to the state to disclose what and how Gov’t Ex. 71 at 3. A subsequent email (unsigned) proposed controlled many controlled substances have been sent by Wood reads: substance policy document (Proposed dispensed at the pharmacy that week.106 [D]o I need to put my name down as PIC Policy) provided to him by Watson, and Tr. 419–20. The database into which to make [the Respondent] compliant? I really represented he would implement its that information is incorporated then don’t want to associate my name with it right provisions if the pharmacy gets its COR permits doctors and pharmacists to now, but I seem to be the only pharmacist back. Tr. 417; Resp’t Ex. 1. Wood search for a particular patient and see they can get to work here for now. I seriously described the Proposed Policy as an that patient’s prescription history to doubt I will be here much longer, however. outline of policies and procedure, a investigate whether a patient has been Id. at 2. ‘‘working document,’’ and stated that he using multiple pharmacies or doctor- Wood also explained that the would recommend that all future PICs shopping. Tr. 420. Wood testified that Respondent is located in an ‘‘extremely be required to review the policy with he does not have a ‘‘magical number’’ of rural’’ area, and that the pharmacy Watson and sign off that they had done how often he checks the PMP when serves a largely indigent population. Tr. so.100 Tr. at 418. Wood proposed the filling a prescription but that such a 404. Wood described the Respondent’s implementation of diversion controls decision relies upon whether customer base as ‘‘extremely loyal’’, and beyond the requirement of the already ‘‘something doesn’t feel right’’ or if a he explained that customers rely upon mandatory biennial inventory,101 such patient shows up multiple times in a pharmacists much as they would rely as a requirement that the PIC personally short period of time with scrips from upon doctors. Id. Wood also stated that insure that all controlled substance different practitioners. Tr. 422–23. because of the small-town nature of the inventory is checked in properly in the Wood stated that he believes that as community, doctors and pharmacists inventory database, and the PIC, he could administer the Proposed have a unique relationship such that maintenance of a ‘‘perpetual inventory’’ Policy should the Respondent retain its doctors ‘‘trust’’ and ‘‘utilize’’ of controlled substances,102 and several COR. Tr. 430. He has been working at pharmacists differently than in other, other measures aimed at increased the Respondent since January 2015 and more cosmopolitan communities, and security and accountability. Tr. 415–19, intends to remain and assume the duties that the Respondent participates in 444. as the PIC, but indicated that he state-authorized ‘‘disease state Wood testified that electronic keypad deferred the submission of his management,’’ counsels patients, and door locks,103 lockable roll-down Pharmacy Board paperwork until April administers immunizations.109 Tr. 430. windows, and a host of pharmacy due to lingering uncertainty as to the According to Wood, although there is security cameras 104 trained on the pharmacy’s future. Tr. 470. Wood another pharmacy in the county, the windows, doors, and cashiers supply allowed that even at the time he grocery store owned by Tom Watson in additional layers of diversion control. accepted the offer to become the next which the Respondent is located is the Tr. 401, 419.105 However, he stated that PIC, he harbored concerns about what only grocery store located in the county. he does not believe anyone watches the the future holds for the pharmacy. Tr. Tr. 404. Wood opined that without the tape in real time or reviews the tape 471. Respondent present, the other pharmacy regularly. Tr. 423–24. He did not know Wood testified that his efforts to allay in the county would have a ‘‘monopoly’’ how long the loop of the tape was or his concerns extended to sending emails on business. Tr. 405. how long the tape preserved the images to the Pharmacy Board.107 Tr. 472. Wood also testified about his before recording over itself. Tr. 423. In However, an examination of the email recollections about his interactions with fact, Wood stated that he never had a exchange 108 between Wood and the pharmacist Grant Goode, which diverge circumstance in which to review any Pharmacy Board reflects a level of significantly from Goode’s account. video monitor tape himself in any urgency that exceeded the impression According to Wood, he met Grant Goode pharmacy where he has ever worked, conveyed by Wood on the witness for the first time upon returning to work and as far as he knows, no one ever stand. In his initial email to the Board at the Respondent, and while the he explained: relationship between the two men was 100 However, in describing the framework created cordial enough at the outset, it by the Proposed Policy, he also stated, ‘‘Common We have not applied for a PIC status sense tells you what you need to be doing in this because of the fact that we’re not sure what culminated in a rather testy telephone regard and what you don’t need to be doing.’’ Tr. direction the store is going in. There’s rumors exchange regarding Goode’s continued 419. employment at the pharmacy. Tr. 425. 101 Tr. 416–17. 106 Wood testified that software developed by By Wood’s account, he and Watson had 102 Wood explained that the institution of a McKesson and used by the Respondent come to the conclusion that there was perpetual inventory would require pharmacy automatically submits these dispensing reports to 110 personnel to count the contents of stock controlled the state. Tr. at 420–21. insufficient business at the pharmacy substance bottles whenever the bottle was nearing 107 As part of the Government’s rebuttal case, it to merit Goode’s continued employment depletion and reconcile the bottle count inventory presented the testimony of John Kirtley, the reflected in the system. Tr. 419. Executive Director of the Pharmacy Board. Tr. at 109 Wood admitted that these services do not 103 Wood conceded that the keypad lock 509. Kirtley testified that he recalled the email involve the dispensing of controlled substances and combination remains the same and that he did not exchange with Wood, and although he was not thus are not dependent on the status of the know whether it was changed after Chris W’s arrest. surprised that a prospective PIC would inquire Respondent’s COR. Tr. 442. Tr. 445. about becoming a PIC in a recently-raided 110 Although Tracy Swaim testified that pharmacy 104 Presumably, this is the same closed-circuit pharmacy, he did recall being surprised that Wood, business had grown by one-third (Tr. 262–63), system that Watson did not know how to access. who had already served as a PIC, was unfamiliar Wood was apparently was not aware of that growth. Tr. 365–67. with the procedural aspects of becoming a PIC. Tr. Tr. 435. He attributed the diminishment in business 105 Photographs depicting the Respondent were 517–19. to the impact of the immediate suspension order. admitted into evidence. Tr. 403; Resp’t Exs. 2–11. 108 Gov’t Ex. 71. Tr. 438.

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there.111 Tr. 426. Wood stated that he suspension order and a former reluctance to tell him about Watson’s communicated the substance of this pharmacist who worked there just told decision, and his explanation to Goode discussion to Goode and suggested that him that the owners were liars and he that his need for full-time pharmacist the two of them share the weekly was fortunate not to be laboring under work obviated the need to have Goode schedule, with Wood working full-time an indictment himself. It is in this employed there at all. In short, Wood’s (three to four days per week) and Goode backdrop that, Wood (an experienced account is less credible than Goode’s, working part-time (two to three days per pharmacist) now claims that he never and Wood’s version of this interaction week).112 Tr. 427. It was Wood’s connected Goode’s statements to any significantly diminishes his credibility. recollection that upon hearing this possible pharmacy misconduct. To put Wood testified that in the disagreeable news, Goode became irate, it mildly, this is implausible and approximately ten years that he has complained that the Watsons had been damages this witness’s credibility. The worked ‘‘on and off’’ for pharmacies lying for years, and even marveled that fact that he did not pursue the matter owned by Tom Watson, including the Wood himself had not yet been indicted further with Goode speaks volumes one-month internship under Chris W based on his experiences with Chris W about his level of professional vigilance, and the two years he worked with Chris at the Watsons’ Mayflower pharmacy.113 and the fact that he testified that he W at the Mayflower pharmacy, he never Tr. 427–29. It is apparent from Wood’s never realized that Goode was referring saw Chris W engage in any strange, testimony that he was offended on to pharmacy misconduct is equally suspicious, or illegal behavior. Tr. 406, behalf of the Watsons. Tr. 427, 429. In telling on the subject of this witness’s 478. He stated that when he heard about his words, it ‘‘struck me as kind of odd credibility. Chris W’s arrest, he assumed that the [that t]he guy was asking me to work for The divergence between Wood’s authorities ‘‘got [Chris W] for putting the Watsons, at the same time bashing recollection of this phone conversation refills on blood pressure meds and them.’’ Tr. 427. Interestingly, offended and the recollection of Grant Goode is diabetes meds,’’ which he describes as as Wood may have been at the striking. Goode was clear that Wood ‘‘about the only thing that [he] ever saw implications of his own culpability and told him that all of his hours at the [Chris W] do’’ and which he had seen that of his employer, the conversation pharmacy were being taken by Wood, other pharmacists do as well. Tr. 406. apparently did not result in any and that it was Wood’s understanding Wood added that when working as a heightened level of suspicion on his that Watson would have told him so relief pharmacist at the Respondent, part that diversion issues could be afoot already. Tr. 291. Wood’s version of the none of the pharmacy technicians ever at the pharmacy where he was working. conversation is internally inconsistent complained to him about missing Tr. 431–34. and illogical. In Wood’s account, when controlled substances or issues with Glenn Wood’s testimony was Goode reached out to him to pin down Chris W, nor did he ever notice missing problematic from a credibility the hours he would be working, this is inventory himself. Tr. 447. Wood standpoint. In fact, the Respondent’s what occurred: testified that upon learning of the position regarding the security and allegations against Chris W, he was integrity to future operations that will So, when I returned [Goode’s] call that shocked, sickened, in disbelief, sad, and evening, I told him, I said, Grant, I hate to follow based on the appointment of be the one to tell you this, you know, I hate angry with Chris W. Tr. 406. He stated Wood as the PIC were actually it because I don’t want to put anybody out that this was not the Chris W that he undermined by Wood’s testimony. of work, I was like there’s not room for both knew from working with him. Tr. 407. Although Wood testified that Goode of us, bud, and I need full-time, but what I’d On the issue of Wood and Chris W raised issues regarding the pharmacy like to happen, I don’t want to work six days working together, Wood’s testimony was and even implied that Wood could have a week. I only want to work three to four also confusing. At one point in his been indicted based on his time working days a week. And I suggested to Grant that testimony, Wood said he ‘‘can’t recall a with Chris W, no sense of professional evening, I said what I’d like to happen is if time when [he and Chris W] ever responsibility as a pharmacist awakened you could work at [the Respondent] two or worked side by side’’ as pharmacists in him even the slightest curiosity as to three days and then find another pharmacy during the same shift. Tr. 451. After that will let you work a couple days there. some significant equivocation, Wood what Goode (a fellow pharmacist that he You know, that would be great. said he barely knew) was talking about. answered the direct question of whether Tr. 427–29. When pressed on the issue, Tr. 426–47; see also Tr. 435–37. Wood’s they worked together this way: testimony about this phone Wood countered that Goode had merely Just on occasion. You know, vacation accused the Watsons of lying, not conversation strengthens Goode’s issues or sickness issues if me or . . . my diversion,114 but in view of the fact that account and weakens his own. If Goode other part-time pharmacist, again I can’t this conversation was occurring two-to- was calling to find out which days he recall an instance, but I’m almost certain that three weeks after the pharmacy search was working, it is reasonable to assume there probably was over the course of three warrant execution, and revelations of he knew already that he was not years in which Chris had come over to misconduct, which, by Wood’s own working all days. If Wood was really relieve us. account, made him ‘‘sick,’’ ‘‘mad,’’ and only telling Goode which days he would Tr. 452. Wood then described how, ‘‘upset,’’ this explanation strains be working, it is illogical that he would because Mondays or the first day of each credulity. Evaluating this conversation ‘‘hate to be the one to tell [him] . . . month could be high traffic times, that in the context of recent events, the because [he does not] want to put pharmacists ‘‘would often double up,’’ Respondent had just been searched and anyone out of work.’’ Tr. 426–27. It but that he could not recall doubling up served with a DEA immediate makes even less sense that Wood, even with Chris W at Morrilton. Tr. 453. by his own recollection, would Since Morrilton was not predicated in 111 Tr. 262–63. remember telling Goode that ‘‘there’s the question, it was only upon follow- 112 According to Wood, Goode wanted to work six just not room for both of us, bud, and up that Wood finally admitted that he days per week at the Respondent. Tr. 436. I need full-time . . . .’’ Tr. 427. Goode’s and Chris W worked together at the 113 Goode’s statements as reported by Wood were testimony that he was essentially Watson’s Mayflower pharmacy once a received for the limited purpose of demonstrating Goode’s state of mind during the conversation, not informed of his own termination during week for two years. Tr. 453–54; see also for the truth of the matters asserted. Tr. 428. this phone call is rendered light-years Tr. 479. This equivocation made even 114 Tr. 434. more credible by Wood’s self-admitted less sense in light of the fact that Wood

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had testified earlier to working together corporation never hired employees, that he should take the matter up with regularly with Chris W. Tr. 392. The ‘‘had no one on the payroll,’’ but Chris W, inasmuch as he is the majority relevance of Wood’s testimony on the occasionally utilized the services of shareholder and the partner charged point is less about how often the two independent contractors (generally with responsibility for handling bills. pharmacists were dispensing in the Wood’s friends) 117 to help mix the Tr. 457. If the business was truly bereft same room that it is about how reluctant product and market it at trade shows. of any potential benefit and awaited Wood was to confirm it. Wood’s Tr. 411–12, 464–65. Chris W procured only its paperwork coup de grace, it is equivocation detracted from the supplies for the product from Watson difficult to imagine why the two credibility of his testimony. family pharmacies. Tr. 463–64. partners would suffer the continued In a similar vein, at one point in his Wood stated that ‘‘the product expense of a Web site. At one point in testimony, Wood indicated that he did worked’’ and that the business was his testimony, Wood said that the not know Eric Horton ‘‘personally.’’ Tr. ‘‘somewhat successful’’ for a few years, enterprise failed only because he 465. Eventually Wood allowed that he but instead of investing time and became distracted with bass fishing and ‘‘know[s] who Eric Horton is’’ because money, he just let the business go. Tr. other interests,119 and at another point, he would encounter him at times with 408–09. In his words, ‘‘[i]t was one of when pressed about the timing of the Chris W. Tr. 466. Then Wood indicated those deals that it grew too fast almost venture’s demise, Wood declared that that he attended ‘‘some birthday and then for whatever reason from there ‘‘the business began dropping off way parties’’ for Chris W’s daughter where it just—I lost interest in it, got burned before last year.’’ Tr. 413. Similarly, Horton was present, and that he out, and—.’’ Tr. 408. Wood testified that Wood testified that he only wanted to sometimes saw Horton ‘‘riding around in the past two years, the business has return to pharmacy work part-time in the truck.’’ Tr. 466–67. When pressed been ‘‘pretty much defunct,’’ for because of his bass fishing and family about what ‘‘riding around in the truck’’ essentially no other reason than Wood’s responsibilities, but testified that he told means, Wood clarified that he would interest in professional bass fishing. Tr. Grant Goode that there was no room for see him in the Watsons’ grocery store 408–10, 454–55. According to his him at the Respondent because ‘‘there’s (which is not really in any truck), and testimony, he has not actively supplied just not room for both of us, bud, and that it was not really that he did not bottles of Redneck Remedy for the past I need full time. . . .’’ Tr. 427. know Horton, but that he did not know year-and-a-half to two years.118 Tr. 412. To the extent that Matlon served no him well. Tr. 466–69. Equivocation on In fact, he testified that he removed the purpose beyond a (successful) profit this point did not enhance Wood’s remaining bottles off the shelf at the venture, it is difficult to reconcile the credibility. Respondent when he began working partners’ decision to kill it so Wood also testified about a separate there again in January 2015. Tr. 440–41, unceremoniously. Wood was unable to business relationship he has maintained 461–63. Thus, the three remaining jars supply an answer that made any sense. with Chris W in a corporation they of the product were removed to shelves Tr. 409–10. Wood stated that he was not started together and named Matlon, in the restricted pharmacy area where in a position to be able to quit his full- Incorporated (Matlon).115 Matlon potential customers or anyone else time position as a pharmacist to devote produced and distributed a product outside Respondent’s pharmacy staff to the business and that his priorities known as ‘‘Redneck Remedy.’’ Tr. 407. could not see it. This was done shortly shifted from marketing the business to Wood stated that shortly after after Wood returned to the pharmacy starting his professional fishing career graduating from pharmacy school, he (the day after the pharmacy search and raising his family. Tr. 409–11. developed a formula for sunburn cream warrant execution), and just after the Despite describing himself as the and began compounding it for sale. Id. diversion allegations surrounding Chris corporation’s hands-on, ‘‘go-to guy’’ According to Wood, Redneck Remedy W came to light. Tr. 441–42, 461–63. (compared to Chris W, whom he was initially sold only to frequent Wood said the remaining cream is ‘‘off described as the ‘‘silent partner’’), Wood pharmacy customers, friends, and of the counter at the point of sale in the was unable to explain how or why the family, but that the success of the pharmacy, and it’s basically just put corporation went from successful to product grew so steadily that after two back out of sight, out of mind.’’ Tr. 441. floundering. Tr. 408. In addressing the years ‘‘it got so big it went from my Wood insisted that Matlon is currently question of what how Matlon’s third bedroom in my home to my worth nothing and still continues to outstanding financial issues would be garage. . . .’’ Tr. 408. Wood recounted exist as a hollow legal entity merely handled, Wood was only able to how he felt that demand for the product because he and Chris W never got unconvincingly offer that he had had swelled sufficiently that he needed around to dissolving it. Tr. 454–55. ‘‘stepped away’’ from the responsibility Much of Wood’s testimony regarding a partner, and enlisted Chris W to of managing the corporation last year Matlon makes no sense. The Redneck supply the business acumen for the and had informed Chris W of that fact. Remedy Web site remains active, and enterprise. Id. Tr. 458–59. Inconsistently, Wood Redneck Remedy was bottled, charges to maintain it continue to conceded that he was the last person to labeled,116 and shelved for retail sale at accrue. Tr. 455–57; Gov’t Ex. 70. Upon file corporate income taxes on the entity learning that Matlon was in arrears in its the Respondent and another (non- in 2013 and anticipates doing so for payments for the Web site account, Watson) pharmacy. Tr. 440–41. Wood 2014. Tr. 459, 465. Confounding matters Wood informed the hosting company maintained that he had scant contact further in this regard, Wood’s email auto with Chris W throughout the course of signature still imbues him with the 117 Wood testified that he was unaware that Chris their Matlon partnership, and the two moniker ‘‘President and CEO of Matlon, W’s friend, Eric Horton, had been enlisted to pick Inc.’’ Tr. 460–61. Wood offered a variety mostly communicated by text message up supplies for the enterprise. Tr. 464, 469. of verbal shrug, citing ‘‘[i]gnorance on and phone calls, especially in recent 118 Wood likewise testified that he anticipated years. Tr. 450. Wood testified that the that the company made $600 in sales in 2014, and [his] part.’’ Tr. 461. Wood indicated that most of that was from friends and family in the he did not know why he continued to early part of the year. Tr. 413. Assuming, as Wood sign all his emails as the president and 115 Wood testified that the name is a combination testified, that each bottle of Redneck Remedy has of the letters starting the first names of their a value of $8 (Tr. 480), Matlon sold approximately CEO of Matlon, and once again stressed respective daughters. Tr. 409. 75 bottles of the cream during this period of alleged 116 Tr. 414. decline. 119 Tr. 408–09, 454–55.

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his self-described status as a poor Oklahoma in 1974, and after working as I talked to Chris [W] about some things, too, businessman (a characterization which a staff pharmacist in a few so I was hoping everything was, I was hoping is belied by the fact that Redneck establishments, opened a grocery store/ everything was in good shape. Remedy made money for Matlon until pharmacy with his brother-in-law, Tr. 326. Watson emphasized that he company operations were abruptly Duane Goode,124 in West Conway, held Swaim in high regard, stating that abandoned). Tr. 461–63. Matlon’s Web Arkansas. Tr. 315–16. Watson and his the two have been together for a long site still lists Wood at its president and father-in-law subsequently built the time and still are. Tr. 333. CEO. SOT 12(g); Gov’t Ex. 70. Respondent in Perryville, operating as Watson was clear that he was Although it would be naı¨ve to part of a grocery store (Big Star ‘‘shocked’’ to learn that his son had an conclude that Matlon is the simply the Perryville), and he later created two addiction problem, and opined that the failed business enterprise described by additional stores in the nearby rural younger Watson’s chronically bloodshot Wood, teasing out its intricacies is communities of Morrilton and eyes were the result of a longstanding likewise a task unrequired to resolve the Mayflower. Tr. 318. He stated that he medical condition. Tr. 236. He offered principal issues in this case. Matlon was has divested himself of all pharmacies that during the 2013–2014 timeframe, a business venture that sold a product with the exception of the Respondent in notwithstanding the fact that he and his whose overhead and production costs the Big Star Perryville grocery store. Tr. son lived ‘‘a little over a quarter of a were amorphous, to say the least. The 321. mile’’ from each other, they only saw materials were purchased and or Watson testified that he retired four each other once every two weeks or so, otherwise obtained by Chris W and years ago, at age sixty-two, and has because their ‘‘paths didn’t cross.’’ Tr. compounded by Wood. Likewise, its encountered Lyme disease and some 327–28. manpower largely came from non- back issues. Tr. 320–21. According to Watson’s position at the hearing employee friends and associates whose Watson, Big Star Perryville was regarding the steps he took based on compensation was almost certainly destroyed by a fire about three years what he was believed and what he was variable and unclear. The business was prior to the hearing and the pharmacy told was less than clear. On the one not driven out of business by lack of was victimized by a burglary while the hand, he indicated that had he learned success so much as it was suppressed by store was located in a temporary that his son, a pharmacist (and later the its owners at about the time that law location. Tr. 323. PIC) at his store, had indications of an enforcement scrutiny focused on Chris Watson explained that after working addiction problem or was engaged in W and the Respondent. Inexplicably, by as a pharmacist at a rival pharmacy suspicious behavior, he would have Wood’s account, the last three bottles of chain, and then his (now closed) referred his son for treatment and Redneck Remedy were removed from Mayflower store, his son Chris W came advised the Pharmacy Board. Tr. 328– retail shelves where they could be sold, to work at the Respondent, and 29, 331. But Watson also testified that and secreted on a shelf within the ‘‘inherited’’ the job of pharmacy PIC he would be unwilling to ‘‘fire enclosed pharmacy spaces away from ‘‘when Tracy [Swaim] quit.’’ Tr. 324–25, somebody ‘cause they tell me so and so potential customers. Tr. 462. While 375–76. Watson also testified that his is doing this or that. . . .’’ Tr. 332. In Matlon was almost certainly structured son Chris W also served as the vice Watson’s words: (and abandoned) in a manner that belies president, controller, and part owner 125 the simplistic explanations tendered by of the business. Tr. 318, 377–78. When It’s hard. I mean, you know, ‘cause I’ve Wood, it is not necessary here to draw asked about Tracy Swaim’s account of talked to [Chris W], well, several times, and he’d usually blame it on something else or, any conclusions in this regard. The why he stepped down as the PIC, the you know, this or that, and I didn’t know principal relevance of Matlon in these elder Watson had this to say: how much was gone. proceedings is that Wood’s implausible Yeah. I—I don’t—I remember some of what Tr. 332. Thus, Watson testified that he testimony regarding its operations [Swaim] talked about but I don’t remember detracts considerably from the all of what he talked about, you know. And would involve the Pharmacy Board and credibility of his testimony. put his son into treatment if he learned Suffice it to say that Wood’s 124 Duane Goode is Grant Goode’s father. Tr. 316. that addiction and/or diversion were 126 presentation was sufficiently 125 Although this testimony is consonant with a occurring, but then conceded that he punctuated with inconsistencies, stipulation of fact regarding Chris W’s ownership actually had been so informed and was that was reached by the parties (SOF 24; Tr. 389), dissuaded from any action by equivocations, and implausibility that is a post-hearing motion by the Respondent sought to cannot be fully credited in this ‘‘correct the record’’ by the addition of an affidavit conversations with his son, who, even recommended decision. Thus, his by Tom Watson’s wife (Teresa Watson) that by his own account, did no more than assertions that he had never had any challenges that assertion. ALJ Ex. 21. The ‘‘usually blame it on something else,’’ or Government validly opposed the Respondent’s ‘‘this or that.’’ Id. Watson even reason to believe that Chris W post-hearing motion to include Mrs. Watson’s demonstrated addiction signs or affidavit. ALJ Ex. 22. Although the Respondent’s acknowledged that he ‘‘didn’t do suspicious activity,120 that no staff motion to include the affidavit was styled as a enough [and] didn’t do it fast enough,’’ member ever brought diversion ‘‘Motion to Correct the Record,’’ it could do no such but asserted that all would have been 121 thing, and was granted only to the extent that Mrs. corrected with a scheduled audit that concerns to his attention, or that he Watson’s affidavit is now included in the record, had never noticed controlled stock and considered in accordance with 21 CFR was scheduled to occur a week after the 127 missing,122 are of limited value here. 1316.58(b) (‘‘Affidavits admitted into evidence shall pharmacy search warrant execution, Respondent’s majority shareholder, be considered in light of the lack of opportunity for and that an inventory was essentially Tom Watson, testified that he is and has cross-examination in determining the weight to be the only real option he had based on attached to statements made therein.’’). ALJ Ex. 23. been a licensed pharmacist for about Inasmuch as the affidavit is inconsistent with the what Swaim told him. Tr. 335–36. forty years,123 that he received his prior stipulation of the parties, and must be However, in view of the fact that he pharmacy degree from the University of considered in light of the absence of cross- (even still) holds Tracy Swaim in high examination, it has been afforded little weight in esteem, and did so at the time Swaim this recommended decision. Additionally, as 120 Tr. 414. explained infra, under current Agency precedent, raised the alarm, it is difficult to 121 Tr. 447–48 Chris W’s status as a part owner of the Respondent 122 Tr. 447. is of negligible significance to a resolution of the 126 Tr. 328. 123 Tr. 352. present case. 127 Tr. 345–46.

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understand how the addition of an pharmacy or Chris W, but subsequently rather exclusively on his son. Tr. 355. inventory to confirm the warning retreated somewhat from that position, The only possible responsibility Watson tendered by a trusted employee would indicating that he had been ill from was willing to acknowledge (albeit have altered his reluctance to act. Stated Lyme Disease, slipped in the bathtub, grudgingly) was not replacing his son as differently, he trusted Swaim and had to take his granddaughter to the the PIC earlier. Id. Specifically, on the Swaim warned him; he had every doctor, and eventually allowed that if issue of Chris W’s wrongful dispensing, reason, based on his decades of there was such a warning from Goode, Watson declared that ‘‘[w]hoever filled experience with Swaim to rely on what that he simply did not remember it. Tr. is responsible for those prescriptions. I he related to him; an inventory would 348–50. In an astonishingly telling didn’t fill them.’’ 134 and regarding the have added nothing to the equation. To statement, Watson related the distaste failure to file a DEA–106 regarding suggest that an inventory that never with which he viewed Goode’s decision medications that were taken from the occurred would have been the final, to alert the authorities without pharmacy, Watson said ‘‘[t]hat should deciding factor in motivating him to act sufficiently vetting his concerns through have been taken care of by the [PIC] is simply not persuasive and Watson family first. In Watson’s own when they [sic] found out they were undermines his credibility. words: missing.’’ Tr. 357. To add to the confusion, at another You know—family is family. You know, if It was clear from the tenor and text of point in his testimony, Watson testified you’ve got a problem go see them about it, his testimony that Watson is strongly that he has actually encountered and talk about the problem. You don’t know possessed of the view that his authority employees using and diverting you got a problem until you at least talk to delegate extends not only to controlled substances, but has never about it. And you know, don’t start with the authority, but also to responsibility. reported any misconduct to the state board, don’t start with the DEA and all Watson explained it in this unequivocal Pharmacy Board in his life. Tr. 344–45. that. Start by calling your uncle or whatever manner: or tell your mom and have her talk to your It is difficult to place credence in his That’s the reason you delegate jobs to testimony that he would refer all uncle if that—you know. But get it there where you can get it in front of you instead people; have somebody that [sic] is diversion issues to the Pharmacy Board of, you know.... Be sure you know what responsible. If I had been the pharmacist-in- when he also says that he has actually you’re talking about before you start that control [sic] I would have taken care of that seen diversion issues in his career and stuff, I mean. myself. I wish now I had of been [sic]. I’ll has never referred anything to the admit that mistake. Pharmacy Board. The two points seem Tr. 350–51. Watson testified that Pharm. Tech. Tr. 358. When asked about the scope of irreconcilable. his theft reporting responsibilities as the Watson’s testimony regarding security June Gilbert has been his friend and employee for over thirty-three years,131 pharmacy owner, Watson tellingly put it measures that have been in place at the this way: pharmacy was also somewhat and has been with him since the first disquieting. He admitted that the entire day he opened the Respondent. Tr. 347. Well, in the long run, yeah, that’s my Even in the face of the (credible) responsibility, but it’s really the staff had access to the controlled responsibility of the store manager, [PIC], and substance ordering password, and testimony of his trusted employee, Tracy Swaim, that Pharm. Tech. all that. I try to delegate authority as much acknowledged that although his as I can because I can’t be there every day. pharmacy had security cameras, he did Gilbert’s direct warning to Watson (in Tr. 362. not know how to access any of the Swaim’s presence) that Chris W was ‘‘giving away’’ medication,132 was the Tom Watson’s testimony was footage to review it. Tr. 365–67. certainly not without its believable Watson also offered a document that tipping point that precipitated his aspects. That said, even apart from the purportedly sets forth a new written set resignation, Watson adamantly obvious reality that Watson has the most of policies and procedures that he maintained that Pharm. Tech. Gilbert at stake at the hearing, there were intends to implement at the Respondent never alerted him to problems at the 133 internal inconsistencies, inconsistencies to address some of the security pharmacy, and that he was not aware with other credible evidence, and shortcomings and reduce the risk of of any complaints from those who implausible aspects that preclude his future diversion (Proposed Policy).128 worked with Chris W at his (former) version of events from being fully Tr. 336–39, 341; Resp’t Ex. 1. pharmacy in Mayflower. Tr. 373–74. credited in this recommended decision. Regrettably, the document was Watson’s consistent point of view The biographical information Watson unsigned,129 and although he testified throughout the proceedings was that the supplied during his testimony as well as that the Proposed Policy had been PIC is the focal point of diversion his subjective estimation (contrary as it circulated to two pharmacy employees control in any pharmacy, and that is to Agency precedent) that delegation and his prospective PIC,130 it was clear diversion occurring by the hand of the of authority can yield immunity from from Watson’s testimony that he did not PIC is a difficult phenomenon to responsibility, are credible. However, know who drafted the document and address. Tr. 332, 336. When pressed on his dual assertions that he was never was not too familiar with its substantive his perception of his own responsibility, warned of pharmacy problems by his contents. Tr. 337–38, 368–71. All in all, the elder Watson steadfastly maintained nephew, Grant Goode, is compromised the Proposed Policy did not add much that he is not accountable for the actions by his alternate position that he just to the discussion of the Respondent’s of his PIC/son, Chris W. Tr. 354–56. may not remember all of Goode’s future. Watson insisted that the blame was not In discussing his nephew, Grant on the Respondent or its owner, but warnings because he fell in a bathtub Goode, Watson initially was and has a history of once contracting unequivocal in his denial that Goode 131 However strong he felt the bonds of his Lyme disease. Tr. 348–50. The veracity had raised any concerns about the friendship were with his long-time employee of Watson’s account is even further Pharm. Tech. Gilbert, they apparently did not diminished by his assertion that he inhibit him from blaming her to Grant Goode for the 128 Gov’t Ex. 1. diversion being perpetrated by his son, Chris W. Tr. could only act upon the concerns 129 Watson offered to sign the document on the 283. expressed by his trusted, long-time PIC witness stand. Tr. 341. 132 Tr. 256–57. 130 Tr. 338–39. 133 Tr. 347. 134 Tr. 356.

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Tracy Swaim once an inventory (that responsibilities did not include the sales were level, but the pharmacy was never occurred) had corroborated it. Tr. management of the pharmacy aspects of buying more drugs.137 335–36. Similarly, Watson’s assertion the businesses, a unified ordering, sales, The upshot of Goode.1’s meeting with that his long-time pharmacy technician and inventory reporting system 136 Watson was that the men agreed to meet and friend June Gilbert never raised linked to all store cash registers gave with Chris W, and did so two weeks pharmacy concerns with him is belied him access to all sales, billing, ordering, later. Tr. 491–92. However, according to by credible testimony of Swaim that he and inventory figures, including Goode.1, his takeaway from the meeting quit when he overheard Pharm. Tech. transactions in the pharmacies. Tr. 487– was that ‘‘it was evident that nothing Gilbert telling Watson that his son was 89. In 2009, Goode.1 had noticed that was going to change.’’ Id. Goode.1 was giving away pills. Tr. 256–57. the Mayflower pharmacy was paying told to mind the grocery side of the Likewise, Watson’s position that if he three full-time pharmacists, one of business and that Chris W would take had received information regarding whom was Chris W, who had eased his care of the pharmacy department. Tr. addiction and diversion he would have actual hours into part-time work (at a 493–93. Goode.1 stated that the conversation devolved into a discussion brought in the Pharmacy Board and full-time salary). Tr. 494. When Goode.1 focused on the personal relationship sought treatment for Chris W is belied raised the issue that this salary output between Goode.1 and the Watsons, and by his subsequent assertions that was not sustainable, Chris W told him although he has encountered diversion he was told that since because Goode.1 that he would ‘‘make it work’’ and that was permitted to use Watson land for over the course of his career, he has Goode.1 should ‘‘take care of grocery.’’ never made such a report to the hunting and a Watson truck for hauling, Tr. 494. Pharmacy Board. Tr. 328, 344–45. that he should mind the grocery side of Even beyond the bathtub and Lyme Goode.1 recounted that overall the the house and let Chris W manage the disease issues, Watson’s assertion that business partnership enterprise had pharmacy end. Tr. 493. Goode.1 his pharmacist/nephew Grant Goode been ‘‘pretty successful’’ in the 2000s, testified that Chris W (who was doing never brought concerns about his son’s but during the summer of 2010 he most of the talking) did not supply any actions to his attention is simply not became aware that a new store the two business-related reason for the drug- credible. Tr. 348–50. Although Watson men had opened in Russellville was sales versus drug-ordering anomaly at expressed exasperation over his struggling financially. During this the Mayflower pharmacy. Tr. 493–95. nephew’s decision to alert the period, Goode.1 and Watson would Goode.1 stated that after the authorities before sufficiently generally see each other about twice a Mayflower store was sold to a large exhausting attempts to resolve issues week, but Goode.1 was sufficiently pharmacy chain,138 Chris W began to through the intercession of family concerned about the Russellville work at some hours at the Respondent members, he raised no issue that operation and some other issues that he at Big Star Perryville. Tr. 495. Goode.1 impacted on Grant Goode’s credibility made arrangements to see Watson at his testified that in late 2012, while he and or that would supply a motive to house. Tr. 489–90. Among other things his wife were on vacation, he received fabricate misconduct. discussed at the meeting, Goode.1 a call from a mid-level multi-store 139 After Watson testified, the testified that he told the elder Watson department manager (T.G.), who told Government presented (in its rebuttal that ‘‘all of a sudden’’ there was no him that Chris W had given a former case) the testimony of Steve Goode money in the Mayflower store bank Mayflower pharmacy technician (C.J.D.) (Goode.1),135 a former employee and accounts, and that when he examined access to the Respondent pharmacy at a business partner of Tom Watson. Tr. the records, pharmacy purchases were time when the Respondent was closed. Tr. 496–99. T.G. told Goode.1 that while 485. Goode.1 testified that he began up, but pharmacy sales were ‘‘flat.’’ Tr. the pharmacy was closed, C.J.D., using working for Tom Watson in 1993 in the 490. Watson, whose son Chris W was the keypad access code to enter the capacity of overall store manager for Big the Mayflower PIC, told Goode.1 that he restricted pharmacy area, prepared and Star Perryville. Tr. 486. He worked in would look at the issue and ‘‘take care that position for approximately six dispensed medications to her friends of it.’’ Tr. 490–91. Goode.1 testified that and family. Although Goode.1 believes years, and then also assumed until the summer of 2010, he had not management responsibilities over that entries were made in the store really paid a lot of attention to computer to reflect the distribution of Watson’s new Mayflower pharmacy/ pharmacy numbers at the Mayflower grocery store for the next year and a the drugs, none of the transactions were store because his primary focus was 140 half. Id. Goode.1 testified that he left rung up on any store cash registers. always the grocery end of the business, Tr. 498. Goode.1 testified that he met Watson’s employ for a year and a half, but that he turned his attention in that but in 2001 rejoined him as a business with Watson about the situation and direction as part of his efforts to warned him that if he didn’t ‘‘get a partner. Id. Goode.1 explained that over ascertain why two stores, Mayflower the course of their ten-year partnership, handle’’ on Chris W, the business would and Russellville, were underperforming. encounter the same problem as the in addition to Big Star Perryville and Tr. 494–95. It was his conclusion that Mayflower, the two men bought several Mayflower pharmacy did. Tr. 496. they had merely underestimated According to Goode.1, Watson said grocery stores, all but one of which demand at Russellville, but the issue at included a pharmacy. Tr. 486–87. Mayflower was different; pharmacy 137 Goode.1 stated that his role in the Goode.1 testified that he had heard rumors of controlled substance discrepancies at the partnership was to oversee the grocery 136 Goode.1 testified that the system was provided Mayflower pharmacy, but as he was not a side of the business, and that he was by the grocery wholesaler, Associated Wholesale pharmacist, he could not verify them. Tr. at 502– responsible for inventory, invoicing, Grocers (AWG). Tr. 487–88. The AWG system 03. sales, and purchases, and had access to accommodated and tracked the ordering of 138 Goode.1 testified that his share of the sale the bank accounts in all of the stores. Tr. pharmaceuticals through McKesson, who at the price (from his 20 percent ownership interest) time was the Respondent’s pharmacy supplier. Tr. totaled approximately $90,000. Tr. at 502. 487. According to Goode.1, although his 488. Goode.1 explained that a unified system 139 Goode.1 testified that the manager, T.G., allowed an overview of all Big Star Perryville supervised bakery and deli operation. Tr. 500. 135 Steve Goode has no relation to Grant Goode, transactions such that he could conduct an 140 Goode.1 did not know whether the and pronounces his (identically-spelled) name examination to determine which aspects of the prescriptions prepared by the former employee differently. Tr. 484. business were doing well or poorly. Tr. 489. were controlled substances. Id.

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‘‘he’d take care of it’’ but nothing upon, and when exercising authority as general deterrence. David A. Ruben, happened. Id. an impartial adjudicator, the Agency M.D., 78 FR 38363, 38364, 38385 (2013). Goode.1 reckoned that Tom Watson may properly give each factor whatever Normal hardships to the registrant, ‘‘was the only one that had any weight it deems appropriate in and even the surrounding community, influence over [Chris W],’’ and that by determining whether a registrant’s which are attendant upon the revocation bringing the issues to Watson’s registration should be revoked. Id.; of a registration, are not a relevant attention, he expected him to ‘‘get David H. Gillis, M.D., 58 FR 37507, consideration. Linda Sue Cheek, M.D., involved in the business’’ and 37508 (1993); see Morall v. DEA, 412 76 FR 66972, 66972–73 (2011); Gregory acknowledge that there was a problem. F.3d 165, 173–74 (D.C. Cir. 2005); Joy's D. Owens, D.D.S., 74 FR 36751, 36757 Tr. 504. His partner’s aspirations Ideas, 70 FR 33195, 33197 (2005); Henry (2009). The Agency’s conclusion that notwithstanding, Watson made no J. Schwarz, Jr., M.D., 54 FR 16422, past performance is the best predictor of discernible effort to intervene. Id. 16424 (1989). Moreover, the Agency is future performance has been sustained Goode.1 and Watson sold the Mayflower ‘‘not required to make findings as to all on review in the courts, Alra Labs., Inc. and Morrilton stores and dissolved their of the factors,’’ Hoxie v. DEA, 419 F.3d v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), partnership in 2012 shortly after the 477, 482 (6th Cir. 2005); Morall, 412 as has the Agency’s consistent policy of C.J.D. incident came to light. Tr. 486. F.3d at 173, and is not required to strongly weighing whether a registrant Goode.1 presented testimony that was discuss consideration of each factor in who has committed acts inconsistent sufficiently even, detailed, plausible, equal detail, or even every factor in any with the public interest has accepted and internally consistent to be afforded given level of detail. Trawick v. DEA, responsibility and demonstrated that he full credibility in these proceedings. 861 F.2d 72, 76 (4th Cir. 1988) (holding or she will not engage in future Goode.1 readily acknowledged that that the Administrator’s obligation to misconduct, Hoxie, 419 F.3d at 483; see dissolution of their partnership was explain the decision rationale may be also Ronald Lynch, M.D., 75 FR 78745, ‘‘not totally amicable’’ because the two satisfied even if only minimal 78754 (2010) (holding that the men still harbor some dispute about the consideration is given to the relevant Respondent’s attempts to minimize financial aspects of the dissolution. Tr. factors and that remand is required only misconduct undermined acceptance of 505. Still, there is nothing about the when it is unclear whether the relevant responsibility); George Mathew, M.D., outcome of these proceedings that factors were considered at all). The 75 FR 66138, 66140, 66145, 66148 would enhance or detract from balancing of the public interest factors (2010); George C. Aycock, M.D., 74 FR Goode.1’s status in their unrelated ‘‘is not a contest in which score is kept; 17529, 17543 (2009); Steven M. monetary dispute, and there was no the Agency is not required to Abbadessa, D.O., 74 FR 10077, 10078 indication of malice or bias in the tenor mechanically count up the factors and (2009); Krishna-Iyer, 74 FR at 463; Med. or his words or demeanor. Watson’s determine how many favor the Shoppe-Jonesborough, 73 FR at 387. former business partner provided Government and how many favor the credible testimony. registrant. Rather, it is an inquiry which [Omitted Material] Any additional facts required for a focuses on protecting the public Factors 1 and 3: The Recommendation resolution of this case are set forth in interest. . . .’’ Jayam Krishna-Iyer, 74 of the Appropriate State Licensing the Analysis portion of this FR 459, 462 (2009). Board or Professional Disciplinary recommended decision. In the adjudication of a revocation of Authority Conviction Record Under The Analysis a DEA COR, the DEA has the burden of Federal or State Laws Relating to the proving that the requirements for Manufacture, Distribution, or Under 21 U.S.C. 824(a)(4), the Agency continued registration are not satisfied. Dispensing of Controlled Substances may revoke the COR of a registrant if the 21 CFR 1301.44(d) (2015). Where the registrant ‘‘has committed such acts as Government has met this burden by Consideration of the evidence of would render [its] registration . . . making a prima facie case for revocation record under Factors 1 and 3 does not inconsistent with the public interest.’’ of a registrant’s DEA COR, the burden of support or undermine the sanction 21 U.S.C. 824(a)(4) (2012). The production then shifts to the registrant sought by the Government in this case. following factors have been provided by to show that, given the totality of the Under Factor 1, the recommendation of Congress in determining ‘‘the public facts and circumstances in the record, state medical licensing authorities is an interest’’: revoking the registrant’s registration important but not dispositive factor in determining whether maintaining a DEA (1) The recommendation of the appropriate would not be appropriate. Med. Shoppe- State licensing board or professional Jonesborough, 73 FR 364, 387 (2008); COR is consistent with the public disciplinary authority. Samuel S. Jackson, D.D.S., 72 FR 23848, interest. Patrick W. Stodola, M.D., 74 FR (2) The [registrant’s] experience in 23853 (2007). Further, ‘‘to rebut the 20727, 20730 (2009); Krishna-Iyer, 74 dispensing, or conducting research with Government’s prima facie case, [the FR at 461. It is beyond argument that respect to controlled substances. beyond the absence of any evidence that (3) The [registrant’s] conviction record Respondent] is required not only to accept responsibility for [the Arkansas state officials have taken any under Federal or State laws relating to the action (or have even considered the manufacture, distribution, or dispensing of established] misconduct, but also to demonstrate what corrective measures matter), the present record contains no controlled substances. recommendation of any kind from any (4) Compliance with applicable State, [have been] undertaken to prevent the Federal, or local laws relating to controlled reoccurrence of similar acts.’’ Jeri licensing or disciplinary authorities in substances. Hassman, M.D., 75 FR 8194, 8236 Arkansas. (5) Such other conduct which may threaten (2010); accord Krishna-Iyer, 74 FR at Regarding the third factor the public health and safety. 464 & n.8. In determining whether and (convictions relating to the manufacture, 21 U.S.C. 823(f) (2012). to what extent a sanction is appropriate, distribution, or dispensing of controlled ‘‘[T]hese factors are considered in the consideration must be given to both the substances), the record in this case does disjunctive.’’ Robert A. Leslie, M.D., 68 egregiousness of the offense established not contain evidence that the FR 15227, 15230 (2003). Any one or a by the Government’s evidence and the Respondent, its owner(s), or any combination of factors may be relied Agency’s interest in both specific and pharmacist or key employee of the

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pharmacy has been convicted 141 of a and relies on intentional diversion regarding [his] ability to responsibly crime related to any of the controlled activity conducted primarily by Chris handle controlled substances in the substance activities designated in the W, the Respondent’s PIC, and the failure future.’’). Similarly, in Cynthia M. CSA. The standard of proof in a on the part of the Respondent to act or Cadet, M.D., the Agency determined criminal case is more stringent than the have safeguards in place to protect the that existing List I precedent 142 standard required at an administrative controlled substances in its care against clarifying that experience related to proceeding, and the elements of both Chris W’s malfeasance. Specifically, the conduct within the scope of the COR federal and state crimes relating to Government argues that based on what sheds light on a practitioner’s controlled substances are not always the Respondent (through its owner, Tom knowledge of applicable rules and coextensive with conduct that is Watson) knew or should have known, regulations would not be applied to relevant to a determination of whether insufficient care was exercised in cases where intentional diversion maintaining registration is within the preventing controlled substance allegations were sustained. 76 FR 19450, public interest. Still, where present, diversion. The Government argues that 19450 n.3 (2011). The Agency’s evidence that a registrant has been the information in the Respondent’s approach in this regard has been convicted of crimes related to controlled possession compelled it to act, and it sustained on review. MacKay, 664 F.3d substances is a factor to be evaluated in failed to do so. Agency precedent has at 819. reaching a determination as to whether consistently held that the registration of There is no question that the the registrant should continue to be a pharmacy may be revoked as the result Respondent has been conducting entrusted with a DEA certificate. The of the unlawful activity of the regulated activity under a DEA-issued probative value of an absence of any pharmacy’s owners, majority COR since 1986 without any indication evidence of criminal prosecution is shareholders, officers, managing on the present record of reported somewhat diminished by the myriad of pharmacist, or other key employee. misconduct that predates the facts that considerations that are factored into a EZRX, LLC, 69 FR 63178, 63181 (1988); gave rise to these proceedings. Gov’t Ex. decision to initiate, pursue, and dispose Plaza Pharmacy, 53 FR 36910 (1988). 1. That said, as discussed in greater detail infra, there is no question that the of criminal proceedings by federal, state, Regarding Factor 2, in requiring an actions of the Respondent’s PIC, for and local prosecution authorities. See examination of a registrant’s experience Robert L. Dougherty, M.D., 76 FR 16823, which the Respondent is accountable, in dispensing controlled substances, 16833 n.13 (2011); Dewey C. MacKay, see EZRX, LLC, 69 FR at 63181; Plaza Congress manifested an M.D., 75 FR 49956, 49973 (2010) Pharmacy, 53 FR at 36910, were plainly acknowledgement that the qualitative (‘‘[W]hile a history of criminal calculated to facilitate intentional manner and the quantitative volume in convictions for offenses involving the diversion. Thus, even if it were which an applicant has engaged in the distribution or dispensing of controlled assumed, arguendo, that the regulated dispensing of controlled substances may substances is a highly relevant activity conducted by the Respondent be significant factors to be evaluated in consideration, there are any number of over the past three decades was reaching a determination as to whether reasons why a registrant may not have exclusively benign, under Agency an applicant should be (or continue to been convicted of such an offense, and precedent, the intentional nature of the be) entrusted with a DEA COR. In some thus, the absence of such a conviction diversion established by the evidence of (but not all) cases, viewing an is of considerably less consequence in record would deprive that assumption registrant’s actions against a backdrop of the public interest inquiry.’’), aff'd, of its ability to mitigate a sanction. how its regulated activities have been MacKay v. DEA, 664 F.3d 808 (10th Cir. In addition to Factor 2 (experience in performed within the scope of its 2011); Ladapo O. Shyngle, M.D., 74 FR dispensing), Factor 4 (compliance with registration can provide a contextual 6056, 6057 n.2 (2009). laws related to controlled substances) is lens to assist in a fair adjudication of Therefore, on the present record, the also germane to a correct resolution of whether continued registration is in the absence of criminal convictions of the the instant case. Regarding Factor 4, to public interest. Agency precedent has Respondent’s owner, pharmacists, or effectuate the dual goals of conquering placed some limitations on the weight key employees (Factor 3), like the drug abuse and controlling both to be accorded to evidence considered absence of any state recommendation legitimate and illegitimate traffic in under this factor. For example, the regarding the Respondent’s COR (Factor controlled substances, ‘‘Congress Agency has taken the position that this 1), militates neither for nor against the devised a closed regulatory system factor can be readily outweighed by acts COR revocation sought by the making it unlawful to manufacture, held to be inconsistent with the public Government. distribute, dispense, or possess any interest, and evidence analyzed under controlled substance except in a manner Factors 2 and 4: The Respondent’s this factor will be afforded scant weight authorized by the CSA.’’ Gonzales v. Experience in Dispensing Controlled by the Agency in the face of proven Raich, 545 U.S. 1, 13 (2005). Under the Substances, and Compliance with allegations of intentional diversion. regulations, ‘‘[t]he responsibility for the Applicable State, Federal, or Local Krishna-Iyer, 74 FR at 463; see also proper prescribing and dispensing of Laws Relating to Controlled Substances Hassman, 75 FR at 8235 (acknowledging controlled substances is upon the Much of the Government’s public- Agency precedential rejection of the prescribing practitioner, but a interest-factors case seeking a COR concept that conduct inconsistent with corresponding responsibility rests with revocation for the Respondent is based the public interest is rendered less so by the pharmacist who fills the on conduct most aptly considered under comparing it with a respondent’s prescription.’’ 21 CFR 1306.04(a) (2015). Factors 2 and 4. The Government alleges legitimate activities that occurred in Under this language, a pharmacist has a substantially higher numbers); Paul J. duty ‘‘to fill only those prescriptions 141 It is undisputed that Chris W has been arrested Cargine, Jr., 63 FR 51592, 51560 (1998) that conform in all respects with the in connection with facts related to this case (Tr. (‘‘[E]ven though the patients at issue are requirements of the [CSA] and DEA 433, 437–38, 445) and equally undisputed that the only a small portion of Respondent’s regulations. . . .’’ Electronic record contains no evidence that anyone associated patient population, his prescribing of with the Respondent (including Chris W) has been convicted in connection with the misconduct controlled substances to these 142 See, e.g., Volusia Wholesale, 69 FR 69409, alleged by the Government. individuals raises serious concerns 69410 (2004).

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Prescriptions for Controlled Substances, Inc., 77 FR 33770, 33771 n.2 (2012) routinely disappear by the following 75 FR 16236, 16266 (2010). (‘‘DEA has long held that it can look morning. SOTs 16(b), (e), 17(c). Staff In short, a pharmacist has a behind a pharmacy’s ownership members have also seen Chris W load ‘‘corresponding responsibility under structure ‘to determine who makes his backpack with controlled Federal law’’ to dispense only lawful decisions concerning the controlled medications and walk out the pharmacy prescriptions. Liddy's Pharmacy, L.L.C., substance business of a pharmacy.’ ’’ door. SOT 16(f). With the assistance of 76 FR 48887, 48895 (2011). ‘‘The (quoting Carriage Apothecary, 52 FR his friend Eric Horton, he has also taken corresponding responsibility to ensure 27599, 27599 (1987)); S & S Pharmacy, large amounts of pharmacy the dispensing of valid prescriptions Inc., 46 FR 13051, 13052 (1981) (holding documentation out of the pharmacy and extends to the pharmacy itself.’’ Holiday that the corporate pharmacy acts secreted it in his home. SOFs 6–12; CVS, L.L.C., d/b/a CVS/Pharmacy Nos. through the agency of its PIC). SOTs 16(g), 19(e), (g), 21. This was done 219 & 5195, 77 FR 62315, 62341 (2012) Knowledge obtained by the pharmacists with the knowledge of the Respondent’s (citing Med. Shoppe-Jonesborough, 73 and other employees acting within the staff and in violation of the regulations, FR at 384; United Prescription Servs., scope of their employment may be which require that the records be Inc., 72 FR 50397, 50407–08 (2007); imputed to the pharmacy itself. See maintained by the pharmacy. 21 CFR EZRX, LLC, 69 FR at 63181; Role of United States v. 7326 Highway 45 N., 1306.15(a)(3) (2015). Authorized Agents in Communicating 965 F.2d 311, 316 (7th Cir. 1992) (‘‘Only Chris W also supplied his girlfriend, Controlled Substance Prescriptions to knowledge obtained by corporate Samantha Pemberton, with controlled Pharmacies, 75 FR 61613, 61617 (Oct. employees acting within the scope of substances in unmarked bottles without 16, 2010); Issuance of Multiple their employment is imputed to the a prescription and created a paper trail Prescriptions for Schedule II Controlled corporation.’’). Agency precedent has at the pharmacy that fraudulently Substances, 72 FR 64921, 69424 (Nov. consistently held that the registration of reflected prescriptions from Dr. James 19, 2007)). Settled Agency precedent a pharmacy may be revoked as the result Arnold, M.D., an emergency room has interpreted this corresponding of the unlawful activity of the physician who never treated Pemberton. responsibility as prohibiting the filling pharmacy’s owners, majority SOTs 7, 22. When, following a traffic of a prescription where the pharmacy, shareholders, officers, managing stop, local police officers attempted to through its pharmacist, ‘‘knows or has pharmacists, or other key employees. ascertain the facts about how Pemberton reason to know’’ that the prescription is Holiday CVS, 77 FR at 62340; EZRX, 69 came into possession of drugs found invalid. E. Main St. Pharmacy, 75 FR FR at 63181; Plaza Pharmacy, 53 FR at with her, Chris W misled them on 66149, 66163 (2010); Bob's Pharmacy & 36911. numerous phone calls and provided Diabetic Supplies, 74 FR 19599, 19601 The evidence of record fabricated documentation that falsely (2009) (citing Med. Shoppe± preponderantly establishes that while created the impression that Dr. Arnold Jonesborough, 73 FR at 381). acting as the Respondent’s PIC, Chris W was her prescriber and that she was The Agency has interpreted this twice 143 dispensed controlled legitimately dispensed the drugs. SOT 9; ‘‘legitimate medical purpose’’ feature of substances to a DEA undercover agent Gov’t Exs. 19, 48, 49; Tr. 52–53. the corresponding responsibility duty on scrips that he knew were bogus. The record also establishes that Chris ‘‘as prohibiting a pharmacist from filling SOFs 14–18, 20; SOT 3. It was clear that W dispensed controlled substances to a prescription for a controlled substance he knew the scrips were fakes because an individual named A.R. with no when he either knows or has reason to he had been actively engaged in prescription whatsoever. SOF 13. Not only did Chris W supply A.R. with know that the prescription was not schooling the undercover agent on how written for a legitimate medical controlled substances, but to cover his to improve his forging skills for future purpose,’’ and has been equally tracks, he reached out by text message scrips. SOFs 14–18, 20; SOT 3; Tr. 146– consistent in its admonishment that to a dentist acquaintance, Dr. Raymond 50. In a palpable display of arrogance ‘‘[w]hen prescriptions are clearly not Hambuchen, who did not know A.R., and disregard for his responsibilities, issued for legitimate medical purposes, and asked Dr. Hambuchen to vouch for Chris W told the undercover agent that a pharmacist may not intentionally his criminality. SOTs 1, 15(b)–(d), 10(d); the agent’s fake scrip ‘‘looks a lot better close his eyes and thereby avoid [actual] Tr. 20–21; Gov’t Exs. 2, 3. Fortunately, than any of the other damn things [he’s] knowledge of the real purpose of the Dr. Hambuchen was not complicit. seen.’’ Gov’t Ex. 18 at 3. He also assured prescription.’’ Sun & Lake Pharmacy, Records seized at the Respondent the undercover agent that what he did Inc., 76 FR 24523, 24530 (2011); Liddy's demonstrate that Chris W fraudulently Pharmacy, 76 FR at 48895; E. Main St. with the drugs after the drugs left his dispensed controlled substances to A.R. Pharmacy, 75 FR at 66163; Lincoln pharmacy was none of his business. eleven times under Dr. Hambuchen’s Pharmacy, 75 FR 65667, 65668 (2010); SOT 3(e). name. SOF 13; SOT 20(d), (e); Gov’t Ex. The evidence of record establishes Bob's Pharmacy, 74 FR at 19601. 4Tr. 185–86. When considering whether a that Chris W engaged in a wild pattern Chris W spent an evening in the pharmacy has violated its corresponding of abusing his authority as a pharmacist restricted area of the Respondent responsibility, the Agency considers while serving as a pharmacist and PIC identifying and assisting his friend, Eric whether the entity, not the pharmacist, at the Respondent. Staff members at the Horton, in liberating copious amounts of can be charged with the requisite pharmacy have been directed by Chris controlled substances from the knowledge. See United Prescription W to dispense controlled substances in pharmacy. A search incident to an arrest Servs., 72 FR at 50407 (finding that the the absence of the requisite scrips and based on a traffic stop of Horton’s truck Respondent pharmacy violated its in the face of blatant red flags of shortly thereafter yielded a virtual corresponding responsibility because diversion, and were aware that large cornucopia of controlled substances ‘‘an entity which voluntarily engages in quantities of controlled substance from the Respondent that Chris W commerce [to] other States is properly shipments delivered to the pharmacy helped him identify, gather, and pack charged with knowledge of the laws up at the pharmacy, none of which had 143 Controlled substances were dispensed to the regarding the practice of medicine in undercover agent by Chris W on November 7, 2014 a label with Horton’s name on it. SOTs those States’’ (emphasis added)); see (Undercover Visit 1) and December 4, 2014 5(c), 11(e), 12(c); Gov’t Ex. 36; Tr. 98. also Pharmboy Ventures Unlimited, (Undercover Visit 4). SOFs 14, 20. Chris W also gave controlled substances

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to Horton at his (Chris W’s) home. SOT pharmacy routinely disappear by the notice and quit. Tr. 257. It would be 7(c). next morning,147 the burglary with difficult to conceive of more sincerely- Joe Jackson, another of Chris W’s controlled substance losses reported to rendered, credible warnings from more friends, was arrested while in the local police,148 and the large trusted employees than those tendered possession of a large quantity of quantities of controlled substances by Tracy Swaim and June Gilbert. Still, controlled substances in Respondent- found in the possession of Horton and Watson was unmoved and left Chris W labeled stock bottles. SOT 13; Gov’t Ex. Jackson (neither of whom were as the Respondent’s PIC. 39. A search of the Respondent’s Respondent employees, and Jackson Tom Watson was also warned of Chris pharmacy records revealed that no was not even a pharmacy customer), the W’s blatant misconduct by his nephew, patient profile was maintained on Respondent has not filed a report of Grant Goode, who briefly worked at the Jackson at the pharmacy; thus, the theft or loss (DEA–106) as required by Respondent as a staff pharmacist. When controlled medications he was the regulations.149 SOT 14(b). That the Goode alerted Watson that dozens of transporting at the time of his traffic staff has noticed that the pharmacy dispensing events lacked hard-copy stop were not legally dispensed to him. regularly runs out of controlled scrips, the owner dismissed it as benign SOTs 14(c), 20(e). medications by the ninth day of each filing errors made by pharmacy staff A search warrant executed at Chris month is clearly evidence that the members. Tr. 277. In view of the fact W’s home yielded, inter alia, hard Respondent was well aware that that Goode was present when Chris W copies of scrips for five patients who controlled medications were routinely loaded medications in his backpack in were dispensed controlled substances at going missing. SOT 16(b). The repeated plain view of his father,150 the elder the Respondent. SOFs 6–12. Under the failure to report the thefts/losses to DEA Watson’s unwillingness to act likely regulations, these documents were constitutes a violation of DEA came as no surprise to Goode. When required to be maintained at the regulations. 21 CFR 1301.76(b). Watson became suspicious that Grant pharmacy. 21 CFR 1306.15(a)(3) (2015). It is likewise beyond argument that Goode had brought his concerns to the There is thus no question that Chris the owner of the Respondent, Tom Pharmacy Board, he had another W was a bad actor, and less question Watson, had unequivocal notice from pharmacist (and business partner of under Agency precedent that because he multiple sources over the course of Chris W) dismiss him from the job. Tr. was a pharmacist, the PIC, the vice several years that his son, Chris W, 291. The reaction of this pharmacist, president, and the controller of the approached the disregard of his Glenn Wood (also a key employee and Respondent, the Respondent is obligations as a pharmacist as if it were supervisory pharmacist), to Goode’s accountable for every bit of Chris W’s an art form. Tracy Swaim worked for concerns was not to elevate the issue or misconduct.144 Holiday CVS, 77 FR at Tom Watson at the Respondent, most of to investigate the allegations; his 62340; EZRX, 69 FR at 63181; Plaza that time as its PIC, for over a quarter response was merely to take offense on Pharmacy, 53 FR at 36911. The seminal of a century. Tr. 232–33. In January of behalf of the Watsons and defend them. question here is not whether a sanction 2012, Swaim told Watson that he was Tr. 427, 429. is authorized (it clearly is), but whether sufficiently troubled by Chris W’s illegal Tom Watson also disregarded the Respondent should be sanctioned. hijinks that he intended to resign as the concerns expressed by his former long- For the reasons that follow, that PIC. Tr. 251–56. Unconsoled by time store manager and partner, Steve question must be answered in the Watson’s assurances, Swaim conducted Goode (Goode.1). While co-owning the affirmative. a close-out inventory, completed the Mayflower store with Watson, Goode.1 Notwithstanding the stunning level of necessary paperwork to step down, and had determined that while Chris W was controlled substance shortages 145 did so. The fact that Swaim’s salary the PIC, pharmacy ordering was going revealed by the DEA audit,146 the remained unaffected and his hours were through the roof while sales were static. awareness by pharmacy staff that not reduced is strong evidence that the Tr. 490–92. When he brought this controlled medications shipped to the demotion was in no way punitive, and concern to Watson’s attention, the two that the long-term PIC was making a men met with Chris W, and Goode.1 144 Although the Respondent has stipulated that powerful statement to his employer. Tr. was essentially told to keep his nose out Chris W is and was a part-owner of the Respondent 254–55, 266–67. Tom Watson’s reaction of the pharmacy side of the house. Tr. (SOF 20), it subsequently sought to challenge the was to effect no discernible change in 493. basis of that stipulation with an affidavit from Chris Goode.1 also informed Watson that W’s mother offered after the hearing was completed. the organization—other than having ALJ Ex. 21. The motion was granted over the Chris W replace Swaim as the Chris W had granted access to the Government’s objection. ALJ Exs. 22, 23. However, Respondent’s PIC. pharmacy to a former employee while inasmuch as Agency precedent does not distinguish Two years and nine months later, the pharmacy was closed and enabled between the responsibility imputed to a Respondent her to dispense medications to her from an owner and the responsibility imputed from when Swaim overheard Pharmacy a managing pharmacist, officer, or other key Technician June Gilbert (a twenty-five- friends and relatives free of charge. Tr. employee, Holiday CVS, 77 FR at 62340; EZRX, 69 year veteran of the Respondent) tell 496–99. Consistent with his custom in FR at 63181; Plaza Pharmacy, 53 FR at 36911, the Watson that Chris W was ‘‘giving away’’ such matters, Watson assured Goode.1 admission of the affidavit (Resp’t Ex. 15), especially that he would take care of the issue and when considered with the diminished weight medication, it was more than Swaim accorded by the regulations, 21 CFR 1316.58(b) could endure, and he warned Watson proceeded to do nothing. Tr. 496–97. (2015), adds virtually nothing to the equation. that he was considering leaving the The partnership between the two men 145 Inasmuch as the shortages based on a DEA pharmacy altogether. Tr. 257. Four days was subsequently dissolved. Id. audit were not noticed in the OSC or the prehearing later, when Swaim learned from the The Respondent also ran afoul of state statements, the audit results, standing alone, cannot controlled substance laws. The form an independent basis for sanction. CBS staff that Chris W’s misconduct had not Wholesale Distribs., 74 FR 36746, 36750 (2009) abated, notwithstanding the fact that Arkansas Uniform Controlled (citing Darrel Risner, D.M.D., 61 FR 728, 730 Swaim had no job prospects and lived Substances Act specifies that no (1996)); see also Roy E. Berkowitz, M.D., 74 FR in a rural area, he gave his two weeks’ controlled substance is to be dispensed 36758, 36759–60 (2009). However, the Government without a prescription issued in did sufficiently notice the Respondent’s failure to file a report of theft or loss of controlled substances. 147 SOTs 16(b), 17(c). compliance with federal laws and ALJ Ex. 1 at 4. 148 SOTs 2(e), 19(f); Tr. 259–60, 323. 146 Tr. 181. 149 21 CFR 1301.76(b) (2015). 150 Tr. 280.

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regulations. Ark. Code Ann. § 5–64–308 procedures.’’ Ark. Admin. Code and safety.152 Agency precedent has (2013). Thus, Chris W’s practice of § 070.00.4–04–00–0010 (2014). generally embraced the principle that dispensing controlled substances Under Arkansas law, ‘‘[t]he permit any conduct that is properly the subject without scrips to his girlfriend, friends, holder and the [PIC] are jointly of Factor 5 must have a nexus to and associates, and his facilitation of a responsible for the security and controlled substances and the former employee’s weekend drug accountability of all controlled drugs underlying purposes of the CSA. Terese, dispensing event to her friends and stored in and/or ordered by a Inc., 76 FR 46843, 46848 (2011); Tony family, clearly violated state laws pharmacy.’’ Ark. Admin. Code T. Bui, M.D., 75 FR 49979, 49989 (2010) related to controlled substances, and (stating that prescribing practices § 070.00.4–04–00–0015 (2014). As such, was passively endured by the related to a non-controlled substance the permit holder is required to Respondent. As discussed supra, the such as human growth hormone may ‘‘provide diversion prevention and Respondent was credibly informed by not provide an independent basis for detection tools appropriate for the numerous sources, was well aware of concluding that a registrant has engaged Chris W’s misconduct, and chose to do particular pharmacy setting and the in conduct which may threaten public nothing. pharmacist in charge shall implement health and safety); cf. Paul Weir When Chris W dispensed controlled and monitor the diversion control and Battershell, N.P., 76 FR 44359, 44368 substances twice to an undercover DEA detection tools provided by the permit n.27 (2011) (noting that although a agent where he knew that the presented holder.’’ Id. Such policies and registrant’s non-compliance with the scrips were fraudulent, he also violated procedures developed by the permit Food, Drug, and Cosmetic Act is not his state ‘‘corresponding responsibility’’ holder and the PIC to prevent and detect relevant under Factor 5, consideration to ensure that the prescribing and diversion may include ‘‘limiting access of such conduct may properly be dispensing of a controlled substance is to by non-pharmacists to controlled considered on the narrow issue of proper. Ark. Admin. Code § 007.07.2–II– drug shipments’’, ‘‘confirming pill count assessing a respondent’s future VIII(B)(1) (2014); see also Ark. Admin. before opening a new bottle of high risk compliance with the CSA). Only Code § 070.00.4–04–00–0009 (2014) drugs’’, and ‘‘tracking pill count on conduct that has ‘‘a nexus to controlled (‘‘Any pharmacist . . . participating in stock bottles.’’ Id. As discussed supra, substances and the underlying purposes the preparation of orders or dispensing Respondent’s lack of any meaningful of the CSA’’ may be considered under of prescriptions . . . is responsible for measures of checks and balances to this factor. Joe W. Morgan, D.O., 78 FR the validity and legality of the order or guard against diversion by a pharmacist, 61961, 61977 (2013); accord Holiday prescription.’’). Prescriptions can only the sharing of the CSOS password, and CVS, 77 FR at 62345. be issued for ‘‘legitimate medical its owner’s obdurate refusal to act on Even the Respondent seems to agree purposes’’ by ‘‘an individual credible warning after warning placed that the depth and breadth of Chris W’s practitioner who is legally authorized to the Respondent in violation of the arrogance and imagination in his prescribe . . . controlled substances in Arkansas security and accountability extended efforts to flout the CSA is the State of Arkansas and who holds a provisions. remarkable by any standard. During his current [DEA COR].’’ Ark. Admin. Code Chris W served as a staff pharmacist enthusiastic campaign of diversion for § 007.07.2–II–VIII. Chris W knew the and PIC at the Respondent. He is the son profit, there were certainly acts he scrips were frauds, and even sought to of the majority owner of the business, committed that were both inside and improve the caliber of the undercover and diverted controlled substances with outside the other public interest factors agent’s future forgeries. Chris W’s considered here. However, there were equal measures of wild abandon and actions as pharmacist and later PIC two ‘‘other conduct’’ undertakings 153 complete impunity. The Respondent violated Arkansas laws and under the that stood out from the rest as deserving knew its pharmacist was violating circumstances, the Respondent is fully of separate consideration: Providing federal and state laws and diverting responsible with knowledge of his advice to the DEA undercover agent on copious amounts of controlled malfeasance. how to improve his scrip forgery substances and elected to take no action. Arkansas regulations delineate a efforts 154 and generating false Consideration of the record evidence number of responsibilities for documents and supplying them to law under Factors 2 and 4 militate supervisory pharmacists; those persons enforcement to cover his tracks in powerfully and conclusively in favor of responsible for supervising pharmacy supplying Samantha Pemberton with personnel are ‘‘responsible for the the COR revocation sought by the drugs. Both stand out as worthy of validity and legality’’ of the Government. separate consideration under Factor prescriptions dispensed and also Factor 5: Such Other Conduct Which 5.155 ‘‘responsible for any shortage of drugs May Threaten the Public Health and There is little doubt that on the classified as controlled substances . . . Safety present record, where the Respondent’s which occurs under their supervision.’’ owner stubbornly ignored every Ark. Admin. Code § 070.00.4–04–00– The fifth statutory public interest warning sign that Chris W, his PIC and 0009 (2014). Likewise, state regulations factor directs consideration of ‘‘[s]uch his son, was essentially on a campaign outline the responsibilities unique to other conduct which may threaten the to abuse his authority and divert drugs those individuals designated as public health and safety.’’ 21 U.S.C. on an unprecedented level, that the pharmacists-in-charge: ‘‘The [PIC] is 823(f)(5) (2012) (emphasis added). To Respondent should be and is wholly responsible for the security and qualify for consideration under this accountable Chris W’s Factor 5 conduct. accountability of all drugs stored in a factor, the evidence must constitute: (1) pharmacy and is responsible for the Conduct 151 (2) not covered by 152 Jacobo Dreszer, 76 FR 19386, 19386 n.3, 19434 validity and legality of all prescriptions application of the other four public (2011); Michael J. Aruta, M.D., 76 FR 19420, 19420 and/or orders upon which drugs are n.3 (2011); Beau Boshers, M.D., 76 FR 19401, 19402 interest factors (3) which has the n.4 (2011). dispensed in a pharmacy. The [PIC] is potential to threaten the public health 153 This is certainly not offered as an exhaustive responsible for ensuring that pharmacy list of all Chris W’s Factor 5-eligible actions. staff has been appropriately trained to 151 See Holloway Distrib., 72 FR 42118, 42126 154 SOFs 15–18, 20; SOT 3; Tr. 146–50. follow the pharmacy’s policies and n.16 (2007). 155 SOT 9(e)–(g); Gov’t Exs. 48, 49.

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Holiday CVS, 77 FR at 62340; EZRX, 69 amount of prudent legal advice could Respondent’s community impact FR at 63181; Plaza Pharmacy, 53 FR at save the Respondent from itself. During argument, even if it were not rendered 36911. There is equally little question his testimony, Tom Watson, the irrelevant by Agency precedent (which that consideration of the record majority owner of the Respondent, it is), is not persuasive on the present evidence under Factor 5 militates doggedly maintained that the record. powerfully in favor of the revocation of responsibility for every bit of That a sanction is authorized does not the Respondent’s COR. horrendous misconduct committed by end the inquiry. In determining whether his son/PIC was his son’s responsibility and to what extent imposing a sanction Recommendation to bear. Tr. 354–56, 358, 362. Watson is appropriate, consideration must be Inasmuch as the Government has obdurately clung to the (false) notion given to both the egregiousness of the preponderantly established that the that delegation of his authority equates offenses established by the Respondent’s PIC engaged in behavior with absolution from his responsibility. Government’s evidence and the that is violative of Federal and state law Tr. 358. He is mistaken, and his position Agency’s interest in both specific and regarding controlled substances in this regard is made even more general deterrence. Ruben, 78 FR at dispensing practices and a pharmacist’s unreasonable by the fact that he has 38364, 38385. As discussed supra, the corresponding responsibility, that the spent years turning a blind eye to conduct of the Respondent, through its Respondent treated the misconduct with warning after warning. Under PIC, and as ignored by its owner, was deliberate indifference, and that the longstanding Agency precedent, stunning. Not only were dangerous Respondent systemically failed to Watson’s failure to accept any level of controlled drugs being doled out to maintain adequate controls to protect responsibility has virtually precluded friends, love interests, and customers, against theft or loss of controlled the Respondent’s ability to avoid a but the apparatus of the Respondent was substances, the Government has sanction in this case. actively employed by Chris W to supplied sufficient evidence to make Inasmuch as the Respondent has not accomplish his misconduct. Chris W out a prima facie case that maintaining accepted responsibility, evidence of used the Respondent’s privileges to the Respondent’s COR would be remedial steps is irrelevant. Hassman, order and store controlled substances as contrary to the requirements of 21 75 FR at 8236. However, even if the if he were running a big-box retailer U.S.C. 823 and 824. As the Government remedial steps offered by the specializing in drug dealing. No amount has sustained its burden to show that Respondent were considered, they of security measures, cameras, the Respondent committed acts would not alter the result. Prospective documents, or safety protocols could inconsistent with the public interest, the PIC Glenn Wood’s testimony concerning defend the public against his father’s burden shifts to the Respondent to show all the extra security measure he intends deliberate indifference. Chris W even that it can be entrusted with a DEA to take 157 suffers from the same once loaned out the store so that a registration. ‘‘[T]o rebut the fundamental defect that Watson’s former employee could mete out drugs Government’s prima facie case, [the representations regarding his to her friends and family. There is no Respondent is] required not only to anticipated increased pharmacy question that a thoughtful consideration accept responsibility for [the involvement 158 and implementation of of the egregiousness of the established established] misconduct, but also to his Proposed Policy 159 do: both men misconduct compels the revocation demonstrate what corrective measures were present and did nothing when the sought by the Government. [have been] undertaken to prevent the Respondent’s PIC, Chris W, ran wild. Regarding the issue of deterrence, reoccurrence of similar acts.’’ Hassman, These men are a major part of the there is no question that a sanction that 75 FR at 8236; Hoxie, 419 F.3d at 483; problem, not the champions of a falls short of revocation would Lynch, 75 FR at 78749 (Respondent’s solution that can be afforded any undermine the Agency’s legitimate attempts to minimize misconduct held genuine credence. interests in both specific and general to undermine acceptance of Although there was no cognizable deterrence. On the issue of specific responsibility); Mathew, 75 FR at 66140, acceptance of responsibility, the deterrence, there is nothing in the 66145, 66148; Aycock, 74 FR at 17543; Respondent took the position that record that lends any support to the Abbadessa, 74 FR at 10078; Krishna- consideration should be given to the fact proposition that Tom Watson’s future Iyer, 74 FR at 463; Med. Shoppe- that its pharmacy serves an behavior will be any different from his Jonesborough, 73 FR at 387. Both prongs underserved, primarily indigent, rural past behavior. Although the Respondent are required, and one is irrelevant community. Resp’t Brf. at 114; Tr. 404, represents that (the retired) Watson without the other. 429–30. Even apart from the potential intends to become more active in the 160 The Government’s prima facie burden irony in concluding that a rural, business in the future, his level of having been met,156 an unequivocal indigent community would garner activity was never the issue. He had his acceptance of responsibility stands as a significant benefit from a COR holder closest associates, managers, business condition precedent for the Respondent who has consistently refused to take partners, employees, pharmacists, and to prevail. Mathew, 75 FR at 66148. This even the smallest step to mitigate his relatives engaged in a consistent chorus feature of the Agency’s interpretation of son’s wholesale diversion of dangerous implicating Chris W as a persistent and its statutory mandate on the exercise of drugs, Agency precedent is clear that criminal diverter, yet Watson was its discretionary function under the CSA normal hardships to the practitioner, unmoved. It strains credulity to think has been sustained on review. MacKay, and even the surrounding community, that the exercise of successfully 664 F.3d at 822. While it is true that the which are attendant upon the denial of defending an ISO at administrative Respondent, through counsel, a registration, are not a relevant proceedings before the DEA will be the commendably entered into an extensive consideration. Cheek, 76 FR at 66972– catalyst of change. There is no reason to and reasonable array of evidentiary and 73; Abbadessa, 74 FR at 10078; Owens, believe that Tom Watson intends to testimonial stipulations in this case, no 74 FR at 36757. Suffice it to say that the manage his pharmacy differently than he has for decades, and every reason to 156 The Respondent concedes that the 157 Tr. 416–19, 444. believe that escaping consequences here Government has met its prima facie burden. Resp’t 158 Resp’t Brf. at 16; Tr. 320, 346–47. Brf. at 2–3. 159 Gov’t Ex. 1. 160 Resp’t Brf. at 16; Tr. 320, 346–47.

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will be as destructive as the impunity would render anything less than a Agency’s interests in deterrence, with which he ignored every warning revocation as an invitation to others in supports the conclusion that the sign that his pharmacy was a mess, and the regulated community to ignore Respondent should not continue to be rendered so at the hands of his son. trouble in their own operations. The entrusted with a registration. Regarding general deterrence, as the inescapable lesson to other COR holders Accordingly, the Respondent’s DEA regulator in this field, the Agency bears would be that delegation of authority COR should be REVOKED, and any the responsibility to deter similar does equate to delegation of pending applications for renewal should misconduct on the part of others for the responsibility. The Agency’s interests in be DENIED. protection of the public at large. Ruben, general deterrence are served best by Dated: May 13, 2015. 78 FR at 38385. The ubiquitous nature revoking the Respondent’s COR. of the drug diversion taking place A balancing of the statutory public John J. Mulrooney, II, within plain sight of the COR holder, interest factors, coupled with Chief Administrative Law Judge. the Respondent’s employees, law consideration of the Respondent’s [FR Doc. 2015–28723 Filed 11–10–15; 8:45 am] enforcement, and the public at large failure to accept responsibility and the BILLING CODE 4410–09–P

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Part III

Department of Homeland Security

Federal Emergency Management Agency 44 CFR Part 206 Factors Considered When Evaluating a Governor’s Request for Individual Assistance for a Major Disaster; Proposed Rule

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DEPARTMENT OF HOMELAND Agency, 500 C Street SW., 8NE, Order 13563, Improving Regulation and SECURITY Washington, DC 20472–3100. Regulatory Review 1. Executive Summary & A–4 Accounting FOR FURTHER INFORMATION CONTACT: Statement Federal Emergency Management Mark Millican, FEMA, Individual Agency 2. Need for Regulatory Action Assistance Division, 500 C Street SW., 3. Affected Population Washington, DC 20472–3100, (phone) 4. Current Baseline and Changes From 44 CFR Part 206 202–212–3221 or (email) FEMA±IA- Proposed Rule [Docket ID FEMA–2014–0005] [email protected]. 5. Impacts to Costs, Benefits, and Transfer SUPPLEMENTARY INFORMATION: Payments RIN 1660–AA83 a. State Costs Table of Contents b. Federal Costs Factors Considered When Evaluating a c. Benefits Governor’s Request for Individual I. Public Participation d. Transfer Payments II. Executive Summary Assistance for a Major Disaster 9. Cumulative Impact of the Proposed Rule A. Purpose of the Regulatory Action 10. Marginal Analysis of the Proposed AGENCY: Federal Emergency 1. The Need for the Regulatory Action and Factors Management Agency, DHS. How the Action Will Meet the Need 11. Regulatory Alternatives 2. Legal Authority ACTION: Notice of proposed rulemaking. a. Voluntary, Faith and Community Based B. Summary of Major Provisions Organizations Resources III. Background b. Maintain the 44 CFR 206.48(b)(6) Table SUMMARY: FEMA proposes to revise its A. The Federal Disaster Declaration regulations to comply with Section 1109 c. Automatically Trigger Contiguous Process Counties and States of the Sandy Recovery Improvement Act 1. Preliminary Damage Assessment (PDA) d. Considering Negative Impact on of 2013 which requires FEMA, in 2. State’s Submission of Its Declaration Businesses cooperation with State, local, and Tribal Request to FEMA e. Linking Individual Assistance Cost emergency management agencies, to 3. FEMA’s Analysis and Recommendation Factor With Public Assistance Cost review, update, and revise through to the President Factor rulemaking the Individual Assistance 4. Approval or Denial of the Declaration f. Use of Factor Thresholds Request g. Homes in Foreclosure factors FEMA uses to measure the 5. Types of Assistance Approved Under the severity, magnitude, and impact of a h. Do Not Include Fiscal Capacity Declaration Request Indicators disaster. B. Sandy Recovery Improvement Act of i. Do Not Include State Resources DATES: Comments must be received on 2013 Indicators or before January 11, 2016. C. FEMA’s Outreach Efforts Required by B. Regulatory Flexibility Act the Sandy Recovery Improvement Act C. Unfunded Mandates Reform Act of 1995 ADDRESSES: You may submit comments, 1. The Role of Voluntary, Faith, and D. National Environmental Policy Act identified by docket ID FEMA–2014– Community Based Organizations During E. Paperwork Reduction Act of 1995 0005, by one of the following methods: Disasters F. Privacy Act Federal eRulemaking Portal: http:// 2. The Correlation Between the Population G. Executive Order 13175, Consultation www.regulations.gov. Follow the Size of a State and Its Capability To and Coordination With Indian Tribal instructions for submitting comments. Recover Governments Mail/Hand Delivery/Courier: 3. Issues With Widespread Damage and H. Executive Order 13132, Federalism Contiguous States I. Executive Order 11988, Floodplain Regulatory Affairs Division, Office of 4. Impact on Businesses Management Chief Counsel, 500 C Street SW., 8NE, 5. Decoupling Individual Assistance J. Executive Order 11990, Protection of Washington, DC 20472–3100. Programs Wetlands Instructions: All submissions received 6. Impacts to Community K. Executive Order 12898, Environmental must include the agency name and 7. Linking Individual Assistance Justice Declarations With Public Assistance docket ID. Regardless of the method L. Congressional Review of Agency Estimated Cost Factor used for submitting comments or Rulemaking material, all submissions will be posted, 8. Thresholds without change, to the Federal 9. Insurance I. Public Participation 10. Homes in Foreclosure e-Rulemaking Portal at http:// 11. Incentives for State Sponsored IA We encourage you to participate in www.regulations.gov, and will include Programs this rulemaking by submitting any personal information you provide. IV. Discussion of the Proposed Rule comments and related materials. We Therefore, submitting this information A. 44 CFR 206.48—Paragraph (b)(1) State will consider all comments and material makes it public. You may wish to read Fiscal Capacity and Resource received during the comment period. the Privacy Act notice that is available Availability If you submit a comment, identify the via the Privacy Notice link on the B. 44 CFR 206.48—Paragraph (b)(2) agency name and the docket ID for this homepage of http:// Uninsured Home and Personal Property rulemaking, indicate the specific section Losses www.regulations.gov. C. 44 CFR 206.48—Paragraph (b)(3) of this document to which each Docket: For access to the docket to Disaster Impacted Population Profile comment applies, and give the reason read background documents or D. 44 CFR 206.48—Paragraph (b)(4) Impact for each comment. You may submit comments received, go to the Federal to Community Infrastructure your comments and material by eRulemaking Portal at http:// E. 44 CFR 206.48—Paragraph (b)(5) electronic means, mail, or delivery to www.regulations.gov, click on Casualties the address under the ADDRESSES ‘‘Advanced Search,’’ then enter F. 44 CFR 206.48—Paragraph (b)(6) section. Please submit your comments ‘‘FEMA–2014–0005’’ in the ‘‘By Docket Disaster Related Unemployment and material by only one means. G. Principal Factors for Evaluating the ID’’ box, then select ‘‘FEMA’’ under ‘‘By Need for the Individuals and Households Regardless of the method used for Agency,’’ and then click ‘‘Search.’’ Program submitting comments or material, all Submitted comments may also be V. Regulatory Analysis submissions will be posted, without inspected at the Office of Chief Counsel, A. Executive Order 12866, Regulatory change, to the Federal e-Rulemaking Federal Emergency Management Planning and Review and Executive Portal at http://www.regulations.gov,

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and will include any personal Recovery Improvement Act of 2013. disaster 1 pursuant to Section 401 of the information you provide. Therefore, Public Law 113–2. Robert T. Stafford Disaster Relief and submitting this information makes it Emergency Assistance Act (Stafford B. Summary of Major Provisions public. You may wish to read the Act). 42 U.S.C. 5170; 44 CFR 206.36(a). Privacy Act notice that is available via FEMA proposed to revise the factors Such a request must be based on a a link on the homepage of found at 44 CFR 206.48 that FEMA uses finding that the disaster is of such www.regulations.gov. to determine whether to recommend severity and magnitude that an effective Viewing comments and documents: provision of Individual Assistance response is beyond the capabilities of For access to the docket to read during a major disaster. The current the State and the affected local background documents or comments factors found at 44 CFR 206.48 for governments and that Federal assistance received, go to the Federal e- Individual Assistance include the is necessary. 42 U.S.C. 5170. Rulemaking Portal at http:// following factors: (1) Concentration of The capacity to respond to a www.regulations.gov. Background Damages, (2) Trauma, (3) Special catastrophe varies from State to State. documents and submitted comments Populations, (4) Voluntary Agency The initial decision on whether may also be inspected at the Office of Assistance, (5) Insurance, and (6) supplemental Federal assistance is Chief Counsel, Federal Emergency Average Amount of Individual necessary for a State responding to and Management Agency, 500 C Street SW., Assistance by State. recovering from a natural disaster lies 8NE, Washington, DC 20472–3100. FEMA is proposing to revise the with each State. The basis for any State II. Executive Summary current factors by providing additional request for a major disaster declaration must be a finding that (1) the situation A. Purpose of the Regulatory Action clarity regarding the considerations FEMA evaluates when making a is of such severity and magnitude that 1. The Need for the Regulatory Action recommendation on whether Individual an effective response is beyond the and How the Action Will Meet the Need Assistance is warranted for a major capacities of the State and affected local governments, and (2) Federal assistance On January 29, 2013, the President disaster declaration. FEMA is proposing to revise 44 CFR 206.48 to include the under the Stafford Act is necessary to signed the Sandy Recovery supplement the efforts and available Improvement Act of 2013 (SRIA) into following factors: (1) State Fiscal Capacity and Resource Availability, (2) resources of the State, local law (Pub. L. 113–2). Section 1109 of governments, disaster relief SRIA requires FEMA in cooperation Uninsured Home and Personal Property Losses, (3) Disaster Impacted Population organizations, and compensations by with State, local, and Tribal emergency insurance for disaster-related losses. 44 management agencies, to review, Profile, (4) Impact to Community Infrastructure, (5) Casualties, and (6) CFR 206.36(b)(1)–(2). update, and revise through rulemaking The President’s declaration may Disaster Related Unemployment. As is the factors found at 44 CFR 206.48 that authorize various types of Federal currently the practice, FEMA will FEMA uses to determine whether to assistance, falling under three main continue to use a myriad of factors and recommend provision of Individual program areas: Public Assistance, data to formulate its recommendations Assistance (IA) during a major disaster. Individual Assistance (IA), and Hazard to the President on major disaster These factors help FEMA measure the Mitigation. Public Assistance provides declarations that authorize IA. No single severity, magnitude, and impact of a supplemental Federal disaster grant data point or factor would determine on disaster. assistance for debris removal, its own FEMA’s ultimate FEMA is proposing this rule to emergency protective measures, and the recommendation nor would any single comply with SRIA and to provide repair, replacement, or restoration of factor necessarily affect the President’s clarity on the IA declaration factors that disaster-damaged, publicly owned ultimate determination of whether a FEMA currently considers in support of facilities and the facilities of certain major disaster declaration authorizing its recommendation to the President on Private Non-Profit organizations. IA is warranted. FEMA purposely whether a major disaster declaration Individual Assistance provides financial declined to be more specific in areas of authorizing IA is warranted. The or direct assistance to individuals and the proposed rule so that FEMA does additional clarity may reduce delays in households who have been injured or not limit Presidential discretion for the declaration process by decreasing whose property has been damaged or declaring a major disaster declaration the back and forth between States and destroyed as a result of a Federally- that authorized Individual Assistance FEMA in the declaration process. FEMA declared disaster, and whose losses are because the parameters for a major is also proposing new factors on Fiscal not covered by insurance or other disaster declaration can change from Capacity and Resource Availability to means. Additionally, a declaration Administration to Administration. provide additional context on potential authorizing Individual Assistance may FEMA wants to ensure that we retain as disaster situations. The proposed rule authorize crisis counseling, disaster case much flexibility as possible so that we would also satisfy the requirements management, disaster unemployment can conform to what the President outlined above in Section 1109 of SRIA. assistance, and disaster legal services. wants in their disaster declaration 2. Legal Authority recommendations. The proposed factors 1 A major disaster is any natural catastrophe FEMA has authority for this proposed would not limit the President’s (including any hurricane, tornado, storm, high rule pursuant to the Robert T. Stafford discretion regarding major disaster water, wind driven water, tidal wave, tsunami, Disaster Relief and Emergency declarations. earthquake, volcanic eruption, landslide, mudslide, Assistance Act (Stafford Act). 42 U.S.C. snowstorm, or drought), or, regardless of cause, any III. Background fire, flood, or explosion, in any part of the United 5121 et seq. Section 401 of the Stafford States, which in the determination of the President Act lays out the procedures for a A. The Federal Disaster Declaration causes damage of sufficient severity and magnitude declaration for FEMA’s major disaster Process to warrant major disaster assistance under this Act assistance programs when a catastrophe to supplement the efforts and available resources of occurs in a State. The specific changes When a catastrophe occurs in a State, States, local governments, and disaster relief the State’s Governor may request a organizations in alleviating the damage, loss, proposed by this NPRM are intended to hardship, or suffering caused thereby. 42 U.S.C. comply with Section 1109 of the Sandy Presidential declaration of a major 5122; 44 CFR 206.2(17).

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The Hazard Mitigation Grant Program 2. State’s Submission of Its Declaration the President with the Governor’s provides grants to States and local Request to FEMA request. 44 CFR 206.37(c). A governments to implement long term During or at the close of the PDA, the recommendation for a major disaster hazard mitigation measures after a major Governor of a State submits the request declaration is based on a finding that disaster declaration. FEMA’s regulations for a major disaster declaration through the situation is or is not of such severity at 44 CFR part 206 Subpart B describe the appropriate FEMA Regional and magnitude as to be beyond the the process leading to a Presidential Administrator. 44 CFR 206.36. The capabilities of the State and its local declaration of a major disaster and the request must be submitted within 30 governments, and must include a actions triggered by such a declaration. days of the occurrence of the incident in determination of whether or not supplemental Federal assistance 2 44 CFR 206.31. order to be considered. 44 CFR under the Stafford Act is necessary and 1. Preliminary Damage Assessment 206.36(a). The basis for the request must appropriate. 44 CFR 206.37(c)(1). In (PDA) be a finding that (1) the situation is of developing a recommendation, FEMA such severity and magnitude that an An initial step in the major disaster considers factors such as the amount effective response is beyond the declaration process is the preliminary and type of damages; the impact of capabilities of the State and affected damage assessment (PDA). The PDA is damages on affected individuals, the local governments, and (2) Federal used to determine the impact and State, and local governments; the assistance under the Stafford Act is magnitude of damage and the resulting available resources of the State and local necessary to supplement the efforts and unmet needs of individuals, businesses, governments, and other disaster relief available resources of the State, local the public sector, and the community as organizations; the extent and type of a whole. 44 CFR 206.33. When the State governments, disaster relief insurance in effect to cover losses; official responsible for disaster organizations, and compensation by assistance available from other Federal operations determines that an event may insurance for disaster-related losses. 44 programs and other sources; imminent be beyond the capabilities of the State CFR 206.36(b)(1)–(2). In addition, the threats to public health and safety; and local government to respond, the request must include: Confirmation that recent disaster history in the State; State will request that the FEMA the Governor has taken appropriate hazard mitigation measures taken by the Regional Administrator perform a joint action under State law and directed the State or local governments, especially FEMA-State PDA. 44 CFR 206.33(a). A execution of the State emergency plan; implementation of measures required as damage assessment team is formed, an estimate of the amount and severity a result of previous major disaster which is composed of at least one of damages and losses stating the impact declarations; and other factors pertinent representative of the Federal of the disaster on the public and private to a given incident. 44 CFR 206.37(c)(1). government and one representative of sectors; information describing the When preparing its recommendation for the State. 44 CFR 206.33(b). A local nature and amount of State and local Individual Assistance in particular, government representative familiar with resources which have been or will be FEMA considers specific factors the extent and location of damage in the committed to alleviate the results of the described in 44 CFR 206.48(b). community is also included if possible. disaster; preliminary estimates of the 44 CFR 206.33(b). Other State and types and amount of supplementary 4. Approval or Denial of the Declaration Federal agencies, and voluntary relief Federal disaster assistance needed Request organizations may also be asked to under the Stafford Act; and certification Upon completion of its participate, as needed. 44 CFR by the Governor that State and local recommendation, FEMA forwards it to 206.33(b). A FEMA official will brief government obligations and the President along with the Governor’s team members on damage criteria, the expenditures for the current disaster request. The Governor’s request may kind of information to be collected for will comply with all applicable cost result in either a Presidential the particular incident, and reporting sharing requirements of the Stafford declaration of a major disaster or an requirements. 44 CFR 206.33(b). Act. 44 CFR 206.36(c)(1)–(5). emergency, or denial of the Governor’s The length of time required to request. 44 CFR 206.38(a). The Governor 3. FEMA’s Analysis and conduct a PDA varies based upon the will be promptly notified by the FEMA Recommendation to the President circumstances of the event. In large Administrator of a declaration by the disasters, a major disaster declaration Upon receipt of the Governor’s President that a major disaster exists, or may be made prior to completing a PDA, request, the FEMA Regional that the Governor’s request does not in which case a damage assessment is Administrator provides written justify the use of the authorities of the conducted following the declaration in acknowledgement of the request. 44 Stafford Act. 44 CFR 206.39. A State order to determine additional program CFR 206.37(a). Based on information may appeal a denial of declaration needs. Damage that is widespread may obtained by the PDA and consultations request within 30 days after the date of take considerably longer to verify than with appropriate State and Federal the letter denying the request. 44 CFR damage in a concentrated area, as there officials and other interested parties, the 206.46(a). is a greater geographic area to assess. FEMA Regional Administrator promptly Certain types of disasters such as prepares a summary of the PDA 2 The supplemental nature of Federal disaster flooding, or disasters affecting remote or findings, analyzes the data, and submits assistance is a longstanding principle of emergency management and disaster response in this country. isolated areas, may slow PDAs down a recommendation to FEMA After any event, the local officials are the first to due to limited accessibility. Depending Headquarters. 44 CFR 206.37(b). This respond, by nature of their proximity to the event on the above circumstances, a PDA can Regional Analysis must include a and knowledge of the area and circumstances. If take anywhere from a day or two to a discussion of State and local resources additional resources are needed, the State then steps in to assist. Once those resources are week or more. On average, a PDA can and capabilities and other assistance overwhelmed, or it is clear that they will be be completed within a week. At the available to meet the major disaster- overwhelmed, the Governor may request a major close of the PDA, FEMA consults with related needs. 44 CFR 206.37(b). disaster declaration. 44 CFR 206.36(a). In the event State officials to discuss findings and Based on all available information, of a declaration, State and local officials continue to lead their respective response and recovery reconcile any differences. 44 CFR the FEMA Administrator formulates a missions, with Federal support provided under the 206.33(c). recommendation which is forwarded to Stafford Act.

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5. Types of Assistance Approved Under carry out a Disaster Recovery Plan. 42 the Stafford Act. Pursuant to SRIA, this the Declaration Request U.S.C. 5189d. The process involves an rulemaking must be completed by A major disaster declaration will assessment of the survivor’s verified January 29, 2014. Although the include the types of assistance that are disaster caused unmet needs, necessary process to revise the factors is authorized under the declaration, 44 development of a goal oriented plan that not yet complete, FEMA intends to CFR 206.40(a), although other types may outlines the steps necessary to achieve complete this process as expeditiously be authorized later, 44 CFR 206.40(c). recovery, organization and coordination as possible. SRIA also authorized, among other The types of assistance authorized of information on available resources things, the option for Federally under the declaration are based upon that match the disaster caused unmet need, monitoring of progress towards recognized Indian Tribal governments to whether the damage involved and its the recovery plan goals and, when make a request directly to the President effects are of such severity and necessary, client advocacy. for a Federal emergency or major magnitude as to be beyond the response Disaster Legal Services: Disaster Legal disaster declaration. FEMA will capabilities of the State, the affected Services provides legal assistance to low implement this provision of SRIA in a local governments, and other potential income individuals who, prior to or as separate rulemaking. recipients of supplementary Federal a result of the disaster, are unable to assistance. 44 CFR 206.40(a). A major secure legal services adequate to meet C. FEMA's Outreach Efforts Required by disaster declaration may authorize all, their disaster related needs. 44 CFR the Sandy Recovery Improvement Act or only particular types of, 206.164. FEMA, through an agreement Section 1109 of SRIA requires FEMA supplementary Federal assistance with the Young Lawyers Division of the to cooperate with State, local, and Tribal requested by the Governor. 44 CFR American Bar Association, provides free emergency management agencies during 206.40(a). As noted above, when legal help for disaster survivors. the process of reviewing, updating, and evaluating requests for Individual Disaster Unemployment Assistance: revising the factors found at 44 CFR Assistance, FEMA considers the factors Disaster Unemployment Assistance 206.48(b). FEMA conducted outreach under 44 CFR 206.48(b) to determine (DUA) provides unemployment benefits with stakeholders, including meetings whether supplemental Federal and re-employment services to with the National Emergency Managers Individual Assistance is warranted. individuals who have become Association, the International A major disaster declaration unemployed as a result of a major Association of Emergency Managers, the authorizing Individual Assistance may disaster and who are not eligible for National Advisory Council, FEMA include any or all of the following regular State unemployment insurance. regional offices, and Tribal governments programs: 44 CFR 206.141. (hereinafter ‘‘stakeholder group’’). The Individuals and Households Program: stakeholder group had widespread The Individuals and Households B. Sandy Recovery Improvement Act of 2013 participation from individuals involved Program (IHP) provides grants, direct in emergency management at the State, assistance, or both to eligible disaster On January 29, 2013, the President local, and tribal levels. These outreach survivors who have necessary expenses signed the Sandy Recovery efforts were conducted from February and serious needs that they are unable Improvement Act of 2013 (SRIA) into 2013 through May 2013 and consisted of to meet through other means, such as law (Pub. L. 113–2). Section 1109 of in-person conferences and conference insurance. 44 CFR 206.110–120. This SRIA requires FEMA, in cooperation calls. During this outreach, a series of help may be in the form of housing with State, local, and Tribal emergency themes emerged from the members of assistance (including Temporary management agencies, to review, the stakeholder group which are Housing, Repair, Replacement, and update, and revise through rulemaking discussed below. Semi-Permanent or Permanent Housing the factors found at 44 CFR 206.48 that Construction) as well as assistance to FEMA uses to determine whether to 1. The Role of Voluntary, Faith, and meet ‘‘other needs’’ such as medical, recommend provision of Individual Community Based Organizations During dental, child care, funeral, personal Assistance during a major disaster. Disasters property, and transportation costs. These factors help FEMA measure the Many in the stakeholder group felt Crisis Counseling Program: The Crisis severity, magnitude, and impact of a that the consideration of services and Counseling Program (CCP) assists disaster. benefits provided by voluntary, faith- individuals and communities recovering Congress directed FEMA to review, based, and community-based from the effects of a natural or human update, and revise these factors, organizations during a disaster should caused disaster through the provision of including 44 CFR 206.48(b)(2) related to not continue to serve as an indicator for community based outreach and psycho- trauma and the specific conditions or when supplemental Federal assistance educational services. 44 CFR 206.171. losses that contribute to trauma, to is warranted. The stakeholders felt that Supplemental Federal funding for crisis provide more objective criteria for voluntary, faith-based, and community- counseling is available to the State evaluating the need for assistance to based organization involvement may not through two grant mechanism: (1) individuals, to clarify the threshold for be available at the time of a disaster Immediate Services Program, which eligibility, and to speed a declaration of declaration and those organizations do provides funds for up to 60 days of a major disaster or emergency 3 under services immediately following a will apply only to Individual Assistance factors that disaster declaration; and (2) the Regular 3 The factors that FEMA considers to evaluate the FEMA considers when evaluating a Governor’s Services Program, which provides funds need for assistance to individuals under the request for a major disaster declaration. Section 502 Stafford Act are at 44 CFR 206.48. FEMA uses these of the Stafford Act authorizes FEMA to provide IHP for up to nine months following a factors to evaluate a governor’s request for a assistance as part of an emergency declaration. disaster declaration. declaration of a major disaster, not an emergency. FEMA has previously considered some of the Disaster Case Management Program: SRIA Section 1109 states that FEMA must review, factors found at 206.48(b) when considering an The Disaster Case Management Program update, and revise the factors in 44 CFR 206.48(b). emergency declaration request that includes IHP The factors that FEMA uses to evaluate a governor’s assistance. FEMA will continue to consider some of (DCMP) is a program that involves a request for emergency assistance, however, are not the factors, when applicable, at 44 CFR 206.48(b) partnership between a disaster case provided in 44 CFR 206.48(b) or in FEMA’s when evaluating an emergency declaration request manager and a survivor to develop and regulations. Therefore, the scope of this rulemaking that includes IHP assistance.

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not provide funding for the rebuilding assistance information from 1994–1999, respond to the event, in accordance or replacement of houses. FEMA and is based on the previous iteration of with the requirements for a major currently considers, as an Individual the IHP which consisted of two separate disaster declaration in the Stafford Act. Assistance factor, the extent to which programs: (1) The Temporary Housing 4. Impact on Businesses voluntary agencies and State or local Assistance Program and (2) the programs can meet the needs of disaster Individual and Family Grant Program. Multiple members of the stakeholder survivors. 44 CFR 206.48(b)(4). FEMA recognizes that there are many group asked FEMA to consider the Voluntary, faith-based, and community- factors, including population, that impact of an incident on businesses. based organizations are often among the contribute to a State’s capability to They believe that there is a direct first to respond to an event. Following respond to and recover from a disaster. correlation between impacts on a disaster, voluntary, faith-based, and FEMA is proposing several factors, businesses and a community’s ability to community-based organizations discussed below, that will be used in recovery. As discussed below, FEMA is mobilize to provide immediate evaluating State capability. proposing revised IA factors that assistance such as food, clothing, consider the impact to businesses 3. Issues With Widespread Damage and shelter, cleaning supplies, comfort kits, because the impacts of a disaster on Contiguous States first aid, and medical care, as well as businesses may impede a community’s services including coordinating Current 44 CFR 206.48(b)(1) notes that ability to recover. Business losses alone, donations, counseling, home repairs, high concentrations of damages however, will not result in a and rebuilding. FEMA is proposing to generally indicate a greater need for Presidential major disaster declaration continue consideration of the resources Federal assistance than widespread and that authorizes IA because the IA grant made available by such organizations as scattered damages throughout a State. programs do not provide assistance to part of the new ‘‘Resource Availability’’ Stakeholders were concerned that the businesses. Instead, FEMA considers the factor discussed below. FEMA cost of widespread minimal damage effect that business disruptions have on recognizes that the resources provided across counties within a State may not disaster survivors. For example, some by the voluntary, faith-based, and be appropriately considered within the survivors may lose work or become community-based organizations are concentration of damage factor. The unemployed due to a disaster, and may typically not a long term recovery stakeholders wanted greater otherwise be ineligible for standard solution for a disaster affected consideration to widespread events that unemployment insurance benefits, thus community and that these are costly. FEMA recognizes that as a showing an increased need for DUA. organizations’ financial capabilities are practical matter, widespread minimal In addition, the Small Business mostly donor-based and dependent on damage spread across a larger Administration (SBA) has separate the economic climate. FEMA also geographic area, can overwhelm a statutory authority and programs, which believes that information on voluntary, State’s capability to adequately respond may be available to assist businesses faith-based, and community-based to a disaster. Therefore, FEMA is absent a Presidential major disaster organizations is valuable because it can proposing a factor, discussed below, declaration. enhance the picture of disaster needs at that will evaluate the estimated cost of 5. Decoupling Individual Assistance a local, grass roots level and may either assistance for a State. Programs offset the need for, or reveal a need for, In events where disasters cross state supplemental Federal assistance. lines, several emergency managers Several members of the stakeholder recommended that a major disaster group suggested decoupling IA 2. The Correlation Between the declaration in one of the States should programs so that States can request Population Size of a State and Its automatically trigger a major disaster specific IA programs instead of Capability To Recover declaration in the other affected State or receiving a generic major disaster Several members of the stakeholder States. The Stafford Act requires that a declaration that authorizes all IA group discouraged FEMA from making Governor’s request for a major disaster programs. The manner in which IA a correlation between State population declaration is based on a finding that programs are requested and authorized size and the capability of that State to the disaster is of such severity and is outside the scope of this proposed recover. More specifically, multiple magnitude to be beyond the capabilities rulemaking, which is to revise the members of the stakeholder group of the State and affected local factors which FEMA uses to evaluate expressed concern with the table in the governments. 42 U.S.C. 5170(a). FEMA’s the need for IA. However, current FEMA current regulations which provides the major disaster recommendation to the policy and practice already allows average amount of Individual Assistance President is based on this same finding. States to request all IA programs or by State. See 206.48(b)(6). This table of 44 CFR 206.37(c). Each State has specific IA programs, as appropriate, via averages does not set a threshold for different capabilities to respond to, its standardized form, Request for recommending Individual Assistance, recover from, and mitigate the effects of Presidential Disaster Declaration Major but was intended as guidance to States a disaster. Moreover a disaster that Disaster or Emergency, OMB Control and voluntary agencies as they develop crosses state lines may have differing Number 1660–0009. This form allows plans and programs to meet the needs impacts in the affected states. As such, States to ‘‘check off’’ the IA programs of disaster survivors. 44 CFR it is unlikely that every event that they are requesting. 206.48(b)(6). impacts multiple states will necessarily Indeed, there have been recent major In developing this proposed rule, be beyond each affected State’s disaster declarations, which authorized FEMA evaluated the utility of this table. respective capabilities. Therefore, rather Disaster Unemployment Assistance and FEMA determined that the table should than recommending that the President the Crisis Counseling Program, without be removed because it causes confusion automatically declare a disaster for each the other IA programs.4 These programs among States, and may be viewed adjoining State affected by a disaster, incorrectly as a threshold for whether a FEMA proposes to continue to base its 4 For example South Dakota, DR–4155, Severe Winter Storm, Snowstorm, and Flooding, Declared State should request Individual major disaster declaration November 8, 2013 (DUA and CCP), 78 FR 72093; Assistance. In addition, the table is recommendation on the capability of the Colorado, DR–4134, Black Forest Wildfire, Declared based on 1990 Census data, uses affected State and local governments to July 26, 2013 (DUA and CCP), 78 FR 51204;

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meet specific needs in the disaster- evaluate the need for a Public idea of what level of damage and need impacted community that may be Assistance major disaster declaration: the State must have before requesting unrelated to physical disaster damage. Estimated cost of assistance, localized assistance. The stakeholders believed FEMA may consider recommending impacts, insurance coverage, hazard that this would prevent States from authorization of these programs when mitigation, recent multiple disasters, spending the time compiling the data they are needed, even in the absence of and programs of other Federal and requesting a declaration when they authorization of the Individuals and assistance. These factors are focused have not sustained enough damage to Households Program, which is generally almost entirely on the impact of the qualify for a major disaster declaration directly tied to physical disaster event on State, local, and tribal that authorizes IA. damage. governments, as well as certain private Section 320 of the Stafford Act non-profit organizations. Members of prohibits the denial of assistance to a 6. Impacts to Community the stakeholder group specifically geographic area based solely use of an FEMA received comments from the identified the estimated cost of arithmetic formula or a sliding scale stakeholder group suggesting that FEMA assistance factor as an approach that based on income or population. 42 assess the impacts from a disaster to a could be applied to IA. Under this U.S.C. 5163. Although FEMA community as a whole and not just factor, FEMA evaluates the estimated determined that any hard thresholds or consider the damage that occurred to cost of Federal and non-federal public inflexible formula would offend the individual houses and residences to assistance against the statewide principles of Section 320,5 FEMA determine the need for a major disaster population to give a measure of the per believes that a systematic and objective declaration that authorizes IA and the capita impact within the State. 44 CFR approach using standardized factors is specific IA programs required. FEMA is 206.48(a)(1). That factor also establishes important for making informed and considering implementing this a $1 million threshold, based on the consistent recommendations to the recommendation in the proposed factor proposition that even the smallest President as well as enhancing described below entitled, ‘‘Impact to population States have the capability to predictability for a State when they Community Infrastructure.’’ FEMA cover that level of public assistance request IA. As discussed throughout believes that by reporting and infrastructure damage. Under FEMA’s section IV, FEMA is proposing to use examining community impacts instead current regulations, there is no objective data from other Federal of just individual residence impacts, corresponding IA single indicator agencies to inform the overall FEMA and the State will have a better designed to evaluate the total cost of the assessment of the request, but, in understanding of the overall impact of disaster against the capability of a keeping with the principles of Section the disaster on the lives of individuals requesting State. 320 and recognizing that every disaster in the community and which IA FEMA agrees with the comments presents unique circumstances, this data programs would benefit disaster received from emergency managers that alone will not be independently survivors. As discussed in more detail the fiscal capacity of a State should be dispositive of whether FEMA below, significant disruptions to considered, but FEMA does not agree recommends the need for IA. that the Public Assistance per capita important services such as 9. Insurance transportation, schools, child care, indicator measure should be adopted for eldercare, or police services are likely to this purpose. Instead, as discussed Under its current regulations, FEMA impede recovery of that community and below, FEMA proposes to use Total considers the amount of insurance may be indicative of a heightened need Taxable Resources and Gross Domestic coverage when evaluating the need for for Federal assistance. In addition, such Product by State as indicators of a IA. 44 CFR 206.48(b)(5). FEMA received impacts may show a specific need for State’s fiscal capacity. For reasons comments from the stakeholder group certain IA programs. For example, a discussed below, FEMA believes that that said that this insurance coverage community may have relatively low these indicators, calculated by the U.S. factor could be viewed as a penalty for damage impacts to individual Department of Treasury and the U.S. people that have limited insurance or residences but a large amount of the Commerce Department’s Bureau of insurance that does not cover the community’s infrastructure, such as Economic Analysis (BEA), are more specific disaster damage. FEMA does schools or roads, may have been appropriate for the purposes of not agree that the insurance coverage destroyed. Such impacts can be quite evaluating a State’s fiscal capacity and factor penalizes disaster survivors for traumatic to the community and may its capability to meet the needs of maintaining private homeowner’s suggest a need for specific IA programs individuals after an event. In addition to insurance or flood insurance. FEMA’s such as the Crisis Counseling Program, Total Taxable Resources and Gross programs are not loss indemnification but not necessarily the Individuals and Domestic Product by State, FEMA will programs. They do not ensure that an Households Program. This information consider the estimated cost of assistance applicant is returned to their pre- will assist FEMA in determining which and States would also have the ability disaster living condition nor can they IA programs to approve when granting to submit other information relevant to cover all disaster-related losses. FEMA a major disaster declaration. their fiscal capacity. FEMA’s proposal of assistance is not as comprehensive as a fiscal capacity factor is discussed insurance coverage and the amount of 7. Linking Individual Assistance further below. money that an insurance company will Declarations With Public Assistance Estimated Cost Factor 8. Thresholds 5 As noted above, FEMA applies a $1 million Some members of the stakeholder minimum threshold when evaluating requests for Some members of the stakeholder Public Assistance. This is based upon a group suggested aligning the financial group indicated that they would like a determination that even the smallest states can be indicators for IA and Public Assistance specific ‘‘hard’’ threshold that indicates expected to cover that level of damage and that major disaster declarations. Currently, whether a State would be eligible to disaster assistance is intended to be supplemental receive a major disaster declaration in nature. The minimum threshold is not a sliding FEMA uses the following factors to scale or an arithmetic formula, nor is it based on authorizing IA. The stakeholders felt population or income. Rather, it is related directly Colorado, DR–4133, Royal Gorge Wildfire, Declared that if there was an established to the degree of damage only. As such, there is no July 26, 2013 (DUA only), 78 FR 51204. threshold it would give States a clear conflict with section 320 of the Stafford Act.

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provide as a settlement is typically the recovery process. FEMA considered factor listed below; the amount of greater than the dollar amount of this information and has preliminarily information and data provided by each assistance FEMA is legally permitted to concluded that foreclosure data should State is voluntary. However, the failure provide.6 FEMA takes insurance not be specified in our evaluation of a State to provide sufficient evidence coverage into consideration under factors. FEMA’s IA programs do not that supplemental Federal assistance is current 44 CFR 206.48(b)(5) because, provide any form of assistance for necessary may result in a delay or under the Stafford Act, Federal disaster foreclosed homes. Repair assistance is possibly denial of a request for a major assistance cannot duplicate assistance available only for owner-occupied disaster declaration authorizing IA. from any source, including available primary residences. As such, homes As is currently the practice, FEMA insurance proceeds. When evaluating without an owner, or homes owned by will continue to use a myriad of factors this factor, FEMA considers the type of a bank or other creditor would not be and data to formulate its disaster damage when determining eligible for assistance. FEMA recognizes recommendations to the President on whether there is insurance coverage. For that high levels of foreclosure may be major disaster declarations that disaster survivors with insurance that associated with economic difficulties in authorize IA. No single data point or does not cover the specific disaster the affected area that could also factor would determine on its own damage, their losses are considered negatively impact a community’s ability FEMA’s ultimate recommendation nor uninsured. to recover. However, FEMA believes would any single factor necessarily Comments that FEMA received from other factors including poverty level, affect the President’s ultimate the stakeholder group raised additional pre-disaster unemployment, and per determination of whether a major concern with the insurance data that capita personal income will be adequate disaster declaration authorizing IA is FEMA uses because it can be inaccurate indicators of economic health in most warranted. The proposed factors would leading FEMA to under- or over- circumstances. If a State believes that not limit the President’s discretion estimate the actual insurance homes in foreclosure will impact their regarding major disaster declarations. penetration rates 7 within a community. capability to respond to the disaster, FEMA reviewed the current factors and FEMA currently utilizes National Flood then the State may articulate this proposes to revise the current factors as Insurance Program (NFIP) data to concern in the narrative portion of their follows. declaration request. FEMA considers all determine insurance penetration rates A. 44 CFR 206.48ÐParagraph (b)(1) for flood damages and Census data to relevant information provided in a State’s request. 44 CFR 206.48. State Fiscal Capacity and Resource determine homeowners’ insurance Availability coverage percentages. FEMA uses the 11. Incentives for State Sponsored IA FEMA is proposing to add at 44 CFR percentage of owner-occupied homes Programs with a mortgage based on Census data 206.48(b)(1) a factor entitled ‘‘State to determine an insurance penetration FEMA received comments from the Fiscal Capacity and Resource rate. FEMA assumes that a home with stakeholder group stating that FEMA Availability.’’ The factors discussed a mortgage would require home should provide incentives for States to below will be used by FEMA to evaluate insurance coverage. FEMA is pursuing have their own IA programs. a State’s fiscal capacity to respond to a Commenters stated that currently there additional resources beyond NFIP and disaster as well as a State’s available is no consideration by FEMA of the Census data to verify insurance resources that can or have been disasters that are paid for by States and penetration rates in order to have the committed to the disaster recovery that States should not be penalized for most accurate insurance information process. having a program that assists its citizens available. FEMA is requesting that Fiscal Capacity. FEMA is proposing to during the time it takes for PDAs to be stakeholders and the public provide evaluate a State’s fiscal capacity to completed and a major disaster information and suggestions on respond to and recover from a disaster declaration authorized. FEMA agrees potential sources of data for the most in 44 CFR 206.48(b)(1)(i)(A)-(D). As with the comments received from accurate insurance information. FEMA discussed above, major disaster emergency managers that any efforts or will consider suggestions during the declarations are based upon a finding programs to help citizens by a State development of the final rule. that the event is of such severity and should be considered. As discussed magnitude that an effective response is 10. Homes in Foreclosure below in the ‘‘Planning After Prior beyond the capabilities of the State and FEMA received comments from the Disasters’’ factor, FEMA proposes to affected local governments. Economic stakeholder group related to homes in include consideration of any planning conditions of the State and affected foreclosure. Some commenters stated and disaster relief programs a State local governments are clearly relevant to that if an area with a high foreclosure establishes after a prior disaster because such a finding. However, the current rate is affected by a disaster, these States are ultimately responsible for the regulations do not specifically include foreclosed homes without an owner well-being of their citizens and therefore consideration of economic factors that could be a greater burden to the State in should continuously evaluate and could affect a State’s capability to improve their disaster planning and respond to or recover from a disaster. 6 For disasters occurring in Fiscal Year 2016 the relief programs based on lessons learned The proposed data points will help maximum amount of financial assistance provided from previous disasters. FEMA evaluate through independently to an individual or household under section 408 of IV. Discussion of the Proposed Rule calculated data whether a State is the Stafford Act (IHP) with respect to any single financially overwhelmed and unable to emergency or major disaster is $33,000. See 80 FR This rule proposes to implement 62086, Oct. 15, 2015. This amount is adjusted adequately respond to a disaster. annually based on the Consumer Price Index for All Section 1109 of SRIA, which requires In addition, the United States Urban Consumers as calculated by the Department FEMA to revise and update through Government Accountability Office of Labor, Bureau of Labor Statistics. rulemaking the Individual Assistance 7 (GAO) has suggested in multiple Insurance coverage rates and insurance factors that are used to make a major 8 penetration rates are both currently captured in 44 reports that FEMA should incorporate CFR 206.48(b)(5). In the new proposed regulation, disaster recommendation to the both of these insurance rates will be captured at President. States are not required to 8 United States Government Accountability 206.48(b)(2)(vi). provide information on every single Office, FEDERAL DISASTER ASSISTANCE:

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States’ fiscal capacity into its The TTR of the State is an annual previous disaster or a financial considerations for recommendations on estimate of the relative fiscal capacity of downturn. Additionally, if a disaster disaster declarations to the President. a State, calculated by the U.S. had a significant amount of damages The GAO reports have historically Department of Treasury. TTR is defined and impacts, so much so that it could focused on fiscal capacity in FEMA’s as the unduplicated sum of the income have a major impact on the real or Public Assistance (PA) factor criteria, flows produced within a State and the actual TTR, FEMA would likely but changes to the PA criteria are income flows, received by its residents, recommend granting IA, assuming the outside the scope of this proposed rule. which a State could potentially tax. damages were not covered by home, FEMA believes that the same principle Calculation of the TTR is based on the property, or flood insurance and IA applies to IA and PA, in that there is a GDP by State and additional accounting assistance would not duplicate benefits. need to assess a State’s capacity to for resident earnings (wages, salaries, TTR is one data point along with respond and recover from a disaster on proprietor’s income, etc.) from out-of- numerous others and will not on its its own when determining whether a state, and resident dividend and interest own determine FEMA’s major disaster declaration is warranted income, as well as reduction for recommendation. States also have the because Federal assistance is components that are presumed not opportunity, as they have in the past, to supplemental. Each State’s capacity to taxable by States (employee and tell FEMA how their economy is respond and recover varies based on the employer contributions to social impacted by the disaster and previous circumstances of the disaster and the insurance, federal indirect business disasters. The State may also present, State’s resources. taxes, federal civilian enterprises and FEMA will evaluate, the GDP trend FEMA therefore proposes to include surplus/deficit). While TTR does not in addition to simply the TTR data. in 44 CFR 206.48(b)(1)(i)(A)–(C) the consider the actual fiscal choices made Generally, FEMA assumes a State following three factors which will help by the States, it does reflect their with a low TTR may have a lower evaluate a State and local jurisdiction’s potential resources. Increases or threshold for requiring supplemental fiscal capacity: (A) The Total Taxable decreases in TTR could indicate a Federal assistance than a State with a Resources (TTR) of the State,9 (B) the strengthening or declining State higher TTR because its economy may Gross Domestic Product (GDP) by economy for FEMA to consider when not be as resilient against the increased State,10 (C) and the Per Capita Personal making a determination of the State’s financial burdens that are attributed to Income by Local Area. FEMA capacity. In summary, TTR is a flow a large disaster. FEMA assumes anticipates that these data points are concept, a comprehensive measure of all territories with lower GDP may have a readily available so that the State can the income flows a State can potentially relatively lower threshold for requiring discuss the data points in their request tax. TTR data is updated annually with Federal assistance. While a higher TTR for a major disaster declaration. These a two year lag in the data. or GDP are indicative of greater fiscal publicly available data points, The GDP by State is calculated by the capability, FEMA recognizes that there 11 calculated by third-party government BEA. GDP by State estimates are are disasters that are so large or so agencies, will allow FEMA to use measured as the sum of the distributions destructive as to overwhelm even the standardized data to evaluate the by industry and state of the components most fiscally capable States. Per capita personal income by local economic capability of a State to of gross domestic income which is the area is calculated by the BEA,14 and is effectively respond to an event. sum of the costs incurred and incomes earned in the production of GDP. the personal income of the residents of a given area divided by the resident Improved Criteria Needed to Assess a Jurisdiction’s Currently, TTR is only provided for the Capability to Respond and Recover on Its Own, fifty States and the District of population of the area. BEA uses the GAO–12–838, September 2012. Available at: Columbia,12 but not the territories; but Census Bureau’s annual midyear http://www.gao.gov/assets/650/648162.pdf. United GDP by State includes calculations for population estimates when computing States Government Accountability Office, 13 the per capita personal income. FEMA DISASTER ASSISTANCE: Improvement Needed in U.S. territories. FEMA would use GDP Disaster Declaration Criteria and Eligibility by State primarily as an alternative anticipates using per capita personal Assurance Procedures, August 2001. Available at: fiscal capacity measure when the TTR of income by local area as a measure to http://www.gao.gov/assets/240/232622.pdf. an area is unavailable. GDP by State better assess the need for supplemental 9 For a more detailed discussion of the may also be used by a State when their Federal assistance within each local methodology estimating the total taxable resources area. A local area with a relatively low (TTR) of the State, please refer to Dep’t of the TTR is inaccurate due to the two year Treasury, Treasury Methodology for Estimating lag in TTR data. It is possible that a per capita personal income that is Total Taxable Resources (TTR) (last revised Nov. State’s TTR data could be strong or affected by a disaster may have a lower 2002), http://www.treasury.gov/resource-center/ trending upwards when in fact recent threshold for requiring supplemental economic-policy/Documents/nmpubsum.pdf. This Federal assistance. Local governments document is also available in the docket for this events may have caused a significant rulemaking. The data on TTR by State is available drop in the State fiscal capacity that is in areas with low per capita personal at http://www.treasury.gov/resource-center/ not yet reflected. This significant drop income will typically have lower tax economic-policy/taxable-resources/Pages/Total- could be caused by, for instance, a bases and therefore may have fewer Taxable-Resources.aspx. FEMA provides this Web resources available to help local site for reference purposes, the Web site may residents impacted by a disaster, which change based on U.S. Treasury’s future actions, and 11 GDP by State is a component of the TTR FEMA will adjust its use of the Web page and data calculation. may indicate a lower threshold for as necessary. 12 The District of Columbia’s TTR does not requiring supplemental Federal 10 Gross Domestic Product of the State was include income earned by out-of-state commuters. assistance. Per capita personal income formerly referred to as Gross State Product. For a Since the District of Columbia is proscribed by by local area when considered more detailed discussion of the methodology Federal law from taxing the earnings of commuters estimating the Gross Domestic Product of the State, from outside its borders, the U.S. Treasury has holistically with TTR (and when please refer to http://bea.gov/regional/pdf/gsp/ subtracted the earnings of non-residents (commuter GDPState.pdf. This document is also available in income). 14 Data on per capita personal income is available the docket for this rulemaking. An example of GDP 13 GDP by State data is currently available from on the BEA’s ‘‘Local Areas Personal Income & by State is available at http://www.bea.gov/ the BEA for the following territories: Virgin Islands, Employment’’ Table CA1. FEMA may need to newsreleases/regional/gdp_state/gsp_ Guam, American Samoa, and the Commonwealth of update this source if the BEA provides a new table newsrelease.htm; however, FEMA will use updated the Northern Mariana Islands. The U.S. Census for per capita personal income, and it is provided data as new information is published. publishes GDP for Puerto Rico. here for clarification purposes only.

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appropriate GDP by State) will help to individuals under the Stafford Act. 44 a State’s disaster history, both identify areas of concentrated need at CFR 206.48(b)(4). While the current Presidential (public and individual the micro local area and individual level factor’s title is ‘‘Voluntary agency assistance) and gubernatorial disaster in addition to the macro State level. assistance,’’ both State and local declarations, for the previous 24-month FEMA also proposes to include at 44 government programs are included. period. FEMA is particularly interested CFR 206.48(b)(1)(i)(D) a factor entitled FEMA is clarifying the inclusion of in information from a State highlighting ‘‘Other Factors.’’ ‘‘Other Factors’’ is State and local government programs any disasters that have occurred within included to explicitly prompt the State and is also expanding 44 CFR the State’s current budget cycle. FEMA to raise and discuss any other additional 206.48(b)(1)(ii)(A) to include private is proposing this as a factor because factors related to the State’s fiscal sector assistance. FEMA is also multiple disasters in a 24-month period, capacity, i.e., burdens on a State specifying Tribal government assistance, and particularly within one State budget treasury or a State’s inability to collect which was previously considered under cycle, may significantly strain a State funds. This factor will encourage a State local government programs. FEMA is budget and reduce the State’s capability to provide an explanation of a State’s proposing this as a factor because the to adequately respond to and recover fiscal capacity that might not be level of assistance available to disaster from a disaster without supplemental captured or accurately reflected in the survivors from State, Tribal, and local Federal assistance. In addition, pursuant above factors. A State may have an government, NGOs, and the private to FEMA’s regulations, at 44 CFR extraordinary fiscal circumstance that is sector, may offset a need or reveal an 206.48(a)(5), in evaluating the need for not reflected in the above factors and increased need for supplemental assistance under the Public Assistance FEMA encourages the State to discuss assistance. Assistance provided by program, FEMA considers the disaster the circumstances. For example, a State, Tribal, and local government, history of the State for the last 12-month hurricane may cause extensive damage NGOs, and the private sector can period. FEMA is requesting 24 months in a coastal area and negatively impact include but is not limited to Emergency of State disaster history data because it tourism, which in turn, will have a Management Assistance Compact closely aligns with the length of time for negative impact on the tax base and (EMAC) resources, sheltering, housing IA programs. For example, IHP fiscal capacity. programs, feeding, mental health assistance is available for 18 months Resource Availability. FEMA services, child care, elder care, and DCMP is available for 24 months proposes to include at 44 CFR reunification services, clean up kits, from the date of a major disaster 206.48(b)(1)(ii) a factor entitled blankets and cots, financial assistance, declaration. A State with an open ‘‘Resource Availability.’’ Federal and other donations. disaster period that is affected by disaster assistance is supplemental in This factor is an attempt to include another disaster might have various nature. FEMA’s current regulations do the ‘‘Whole Community’’ approach to unique issues related to recovery and not provide for the level of granularity emergency management that reinforces the compounded effects of two disasters and detail for FEMA to fully evaluate the fact that FEMA is only one part of within a short amount of time. Review what and where the resource shortfalls our nation’s emergency management of disaster activity occurring within the are for a community and State that was team; that FEMA must evaluate all of past 24 months will help to capture any affected by a disaster. ‘‘Resource the resources of the collective team in ongoing disaster activity where Availability’’ will be an evaluation of preparing for, protecting against, individuals may still be receiving IHP the disaster assistance resources responding to, recovering from and assistance. If the length of time were available from State, Tribal, and local mitigating against all hazards; and that limited to only 12 months, this factor governments as well as non- collectively we must meet the needs of might not identify that the State governmental organizations and the the entire community in each of these currently has an open major disaster private sector so that FEMA can areas. FEMA fully recognizes that a declaration where individuals are determine where, if any, gaps in government-centric approach to potentially still receiving FEMA IA resources exist. This factor also provides emergency management is not enough assistance. This time period will also for consideration of those circumstances to meet the challenges posed by a align with most State government fiscal that may prevent a State from having catastrophic incident. When the cycles, which are typically one or two sufficient resources to devote to the community is engaged in emergency years. An unanticipated number of disaster recovery process. Supplemental management, it becomes empowered to Federal assistance under the Stafford identify its needs and the existing disasters within a fiscal cycle may Act is not warranted or necessary if a resources that may be used to address contribute to budget shortfalls that may State’s disaster-caused needs can be met them. Collectively, we can determine render a State less able to respond to an by the available resources provided by the best ways to organize and strengthen event. a State, Tribal, local governments, non- community assets, capacities, and FEMA is proposing a new factor, governmental organizations, or the interests. This allows us, as a nation, to ‘‘State Services,’’ at 44 CFR private sector. expand our reach and deliver services 206.48(b)(1)(ii)(C). Under this factor, FEMA is proposing to include at 44 more efficiently and cost effectively to FEMA would evaluate information CFR 206.48(b)(1)(ii)(A)–(D) four factors build, sustain, and improve our regarding any circumstances that that will enable FEMA to fully evaluate capability to prepare for, protect against, prevent a State from having the a State’s available resources post respond to, recover from, and mitigate resources to provide sufficient services disaster: (1) State, Tribal, and local all hazards. The ‘‘Whole Community’’ to its citizens. FEMA strongly believes government, Non-Governmental approach is an ongoing component of that it is important for a State to have Organizations (NGO), and Private Sector the nation’s larger, coordinated effort to pre-identified funding sources or Activity; (2) Cumulative Effect of Recent enhance emergency planning and sufficient disaster relief funds or Disasters; (3) State Services; and (4) strengthen the nation’s overall level of programs that can be utilized to assist Planning After Prior Disasters. preparedness. its citizens after a disaster. A State In current regulations, FEMA FEMA proposes to add a new factor requesting a major disaster declaration evaluates voluntary agency assistance to ‘‘Cumulative Effect of Recent Disasters,’’ should address the reasons why the determine the need for assistance to at 44 CFR 206.48(b)(1)(ii)(B), to evaluate State does not have sufficient funds, or

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why the funding sources are insufficient disaster declaration.15 This proposed from the other data points outlined in to meet the needs of its citizens. factor will more accurately describe the this factor. This data point is important Finally, under the ‘‘Resource information collected and evaluated because it will capture the probable Availability’’ factor, FEMA is proposing during joint PDAs. grant assistance that will be awarded for personal property in addition to grant to consider a State’s ‘‘Planning After The first proposed data point is the cause of damage in a new paragraph 44 assistance for housing. Prior Disasters,’’ at 44 CFR CFR 206.48(b)(2)(i). FEMA is requesting The fifth proposed data point is 206.48(b)(1)(ii)(D). Federal disaster this information in part because it is information on the homeownership rate assistance is supplemental and is not directly relates to insurance coverage. of impacted homes in a new paragraph intended to take the place of State The cause of disaster damage refers to 44 CFR 206.48(b)(2)(v). This factor is an disaster assistance programs. States are the peril that caused the disaster estimated rate of the homeownership of strongly encouraged to develop and damage such as a tornado or wind impacted homes in the disaster-affected continuously improve their own driven rain. Insurance policies typically area. FEMA may provide assistance for disaster assistance programs. For this only cover damage resulting from a real property repair or replacement to factor, States should identify any new specific peril or perils. FEMA is legally homeowners for their primary residence and existing individual assistance prohibited from duplicating insurance and rental assistance to homeowners or programs as well as any improvements proceeds when providing disaster renters; therefore, it is important to to existing individual assistance assistance and must know the level of know homeownership rates in order to programs made as a result of previous insurance coverage and the cause of the estimate probable assistance. disasters. States that continually fail to damage to estimate the potential amount The sixth proposed data point is address limitations or shortfalls of Federal IA available. information on the percentage of identified by FEMA or the State after The second proposed data point is affected households with insurance previous events will receive negative information on the jurisdictions coverage appropriate to the peril in a consideration under this factor. FEMA impacted and the concentration of new paragraph 44 CFR 206.48(b)(2)(vi). is proposing this as a factor because damages in a new paragraph 44 CFR FEMA is requesting this information States are ultimately responsible for the 206.48(b)(2)(ii). FEMA is requesting this because FEMA will consider the well-being of their citizens and therefore information because it will highlight the percentage of affected households with should continuously evaluate and counties within a State that may require insurance coverage as part of the improve their disaster planning and IA as well as whether the damages were evaluation of whether the IHP is relief programs based on lessons learned in one concentrated area of the State or necessary and to assist in determining probable grant assistance. Insurance from previous disasters. widespread. This information will be gathered during the PDA process by appropriate to the peril is, for example, B. 44 CFR 206.48ÐParagraph (b)(2) either the damage assessment teams or if the cause of the damage is wind and Uninsured Home and Personal Property via geographic information system (GIS) the homeowner has homeowner’s Losses data. IA is typically authorized based on insurance, then the homeowner has county or parish jurisdictional insurance appropriate to the peril. If the Under FEMA’s current regulations, boundaries. homeowner has homeowner’s FEMA evaluates the concentration of The third proposed data point is the insurance, but no flood insurance, and damages to individuals. 44 CFR number of homes impacted and degree the cause of the damage is flooding, 206.48(b)(1). FEMA also considers the of damage in a new paragraph 44 CFR then the homeowner does not have amount of insurance coverage pursuant 206.48(b)(2)(iii). Degree of damage refers insurance appropriate to the peril. If a to 44 CFR 206.48(b)(5). FEMA is to the extent of disaster damage and its homeowner has sufficient and proposing to incorporate both of the impact on the habitability of a home. appropriate insurance to the peril, Federal assistance may be limited to current factors, as well as additional FEMA is requesting this information ONA, CCP, DCMP, or DUA programs information collected during the PDA because it illustrates how a community because the Stafford Act prohibits process, into a new factor entitled was affected and what types and the FEMA from duplicating benefits ‘‘Uninsured Home and Personal extent of IA that may be needed for the received from any other source, Property Losses’’ in a new 44 CFR community. This information is including insurance proceeds. The State 206.48(b)(2). As described above in typically given at both the county or should attempt to provide this section (III)(A)(1) of the Background parish jurisdictional level and the State information through the State insurance section, FEMA and the State participate wide level. commissioner or office and other in the joint PDA process, which The fourth proposed data point is the appropriate sources. FEMA will verify includes an examination of the extent of estimated cost of assistance in a new the data using the best analysis methods damage to individual residences. The paragraph 44 CFR 206.48(b)(2)(iv). The available. FEMA currently utilizes PDA data points help to illustrate the estimated cost of assistance is typically extent of damage that a community has National Flood Insurance Program generated by the joint FEMA-State PDA (NFIP) data to determine insurance sustained and help FEMA estimate the and is already currently collected in penetration rates for flood damages and probable grant assistance under the FEMA’s current declarations process. Census data to determine homeowners’ Individuals and Households Program. The estimated cost of damage will help insurance coverage percentages. Since The proposed data points save FEMA FEMA gather information about the cost insurance coverage is not collected time when evaluating a major disaster of a disaster and the potential amount during the Census, the percentage of declaration request because the of FEMA assistance that would be owner-occupied homes with a mortgage requested data has already been awarded. This data point is often is used to determine an insurance evaluated and validated by FEMA determined using information obtained penetration rate, due to assumption that during the joint PDA process. FEMA a home with a mortgage would require 15 currently collects this information via Preliminary Damage Assessment for Individual home insurance coverage. FEMA is the joint PDA process and uses them Assistance Operations Manual (9327.2). Available at: http://www.fema.gov/media-library/assets/ pursuing additional resources beyond when evaluating requests for major documents/29569. NFIP and Census data to verify

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insurance penetration rates in order to data points 17 in making a needed after a disaster. For example, have the most accurate insurance recommendation for IA under a major demographic information revealing a information available. As previously disaster declaration: (1) The percentage large number of low income, mentioned in Section III(C)(9), FEMA is of the population for whom poverty unemployed, or elderly populations in a requesting that stakeholders and the status is determined; (2) the percentage disaster area could indicate a need for public provide information and of the population already receiving supplemental Federal assistance suggestions on potential sources of data government assistance, such as because those populations may not have for the most accurate insurance Supplemental Security Income and a large amount of disposable income or information. FEMA will consider any Supplemental Nutrition Assistance qualify for a Small Business suggestions during the development of Program benefits; (3) the pre-disaster Administration (SBA) disaster loan. the final rule. unemployment rate; (4) the percentage With respect to demographic Finally, the seventh proposed data of the population that is 65 years or information that reveals a large non- point is any other relevant preliminary older; (5) the percentage of the English speaking population, this will damage assessment data in a new population 18 years or younger; (6) the help FEMA to structure their outreach paragraph 44 CFR 206.48(b)(2)(vii). percentage of the population with a efforts to ensure that any messaging FEMA is proposing this factor to disability; and (7) the percentage of the efforts are in the appropriate languages. explicitly prompt the State to discuss population who speak a language other any other damage assessment than English and speak English less D. 44 CFR 206.48ÐParagraph (b)(4) information that was gathered during than ‘‘very well.’’ In addition, FEMA Impact to Community Infrastructure the joint FEMA-State PDA that the State will continue to consider any unique In FEMA’s current regulations, at 44 believes demonstrates that an effective considerations regarding American CFR 206.48(b), FEMA considers the response is beyond the capability of the Indian and Alaskan Native Tribal degree of trauma to a State and to State and affected local governments populations raised in the State’s request communities when evaluating a State’s and that supplemental Federal for a major disaster declaration, even if need for IA. FEMA considers conditions assistance for individuals is appropriate. such considerations are not be reflected in the U.S. Census Bureau data. These that might cause trauma, such as large C. 44 CFR 206.48ÐParagraph (b)(3) data points are readily available so that scale disruption of normal community Disaster Impacted Population Profile the State can discuss the data points in functions and services and emergency In FEMA’s current regulations at 44 its request for a major disaster needs such as extended or widespread CFR 206.48(b)(3), FEMA considers declaration. loss of power or water. 44 CFR special populations in evaluating the The proposed population 206.48(b)(2)(ii) and (iii). SRIA need for assistance to individuals under demographic data points are relevant to specifically identified trauma as a factor the Stafford Act. FEMA proposes to all of FEMA’s IA programs and are a that required clarification as to the expand on this current factor, in the valuable source of information to specific conditions or losses that proposed factor ‘‘Disaster Impacted determine if specific programs are contribute to trauma. FEMA proposes to Population Profile’’ at a revised 44 CFR examine what was previously identified 206.48(b)(3). Currently, in the ‘‘special www.bls.gov/web/laus/laumstrk.htm and http:// as part of the ‘‘trauma’’ factor by www.bls.gov/lau/#cntyaa. Data on county identifying and evaluating several more populations’’ factor FEMA considers populations of ‘‘65 or Older’’ and ‘‘18 or Younger’’ demographic information regarding low data comes from the ACS using the American objective factors which contribute to the income, elderly, or unemployed FactFinder, Advanced Search, Geographies: ‘‘All level of trauma caused by a disaster.18 Counties within the United States,’’ Topics: DP05, The ‘‘Impact to Community populations that are affected by a major 5-year estimates. Data on populations with a disaster because those populations may disability comes from the ACS, American Infrastructure’’ factor at a proposed new have a greater need for assistance. 44 FactFinder, Advanced Search, Geographies: ‘‘All 44 CFR 206.48(b)(4) includes several CFR 206.48(b)(3). FEMA also considers Counties within the United States,’’ Topics: S1810, considerations which relate to the level 3-year estimates. Data on ‘‘percent of population of trauma, as well as considerations that whether a State has any American who speaks English less than very well’’ comes Indian or Alaskan Native Tribal from the ACS, American FactFinder, Advanced shed light on a community’s ability to populations. 44 CFR 206.48(b)(3). Search, Geographies: ‘‘All Counties in the United recover from a disaster. This factor has FEMA is proposing to consider States,’’ Topics: B06007, 5-year estimates. Data on three components: (1) Life-Saving and American Indian and Alaska Native populations Life-Sustaining Services; (2) Essential additional demographic data points comes from the ACS, American FactFinder, related to the disaster impacted Advanced Search, Geographies: ‘‘All Counties Community Services; and (3) community. This information will help within the United States,’’ Topics: DP05, 5-year Transportation Infrastructure and estimates. FEMA may update these sources to Utilities. Significant levels of damage, FEMA to identify the specific issues or account for future improvement and changes in the obstacles that a community may face in U.S. Census, BLS, BEA, and Treasury data disruption, or destruction to any or all their disaster recovery. FEMA will reporting, and the sources are provided here for of these components may hinder the consider the following U.S. Census and example. ability of individuals and families to other Federal agency 16 demographic 17 For definitions related to demographic data make a timely recovery, be indicative of points, please refer to the associated organizations higher levels of trauma, and suggest an Web sites. For example, refer to U.S. Census Small 16 Poverty data comes from the U.S. Census Small Area Income and Poverty Estimates definitions at increased need for supplemental Area Estimate Branch, ‘‘Poverty and Median Income http://www.census.gov/did/www/saipe/methods/ Federal assistance—for example Other Estimates for Counties.’’ Supplemental Nutrition statecounty/20102012county.html for percentage of Needs Assistance, Crisis Counseling Assistance Program data is from the U.S. Census’s the population for whom poverty status is American Community Survey (ACS) using the determined. For a definition of the pre-disaster Program, or Disaster Case Management American FactFinder, Advanced Search, unemployment rate, refer to Bureau of Labor Statics Program. FEMA anticipates information Geographies: ‘‘All Counties within the United at http://www.bls.gov/bls/glossary.htm and search on the three components will be States,’’ Topics: S2201, 5-year estimates. for the term ‘‘unemployment rate’’. The U.S. Census provided by the State. Supplemental Security Income data comes from glossary at http://www.census.gov/glossary and ACS using the American FactFinder, Advanced American Community Survey also provide Search, Geographies: ‘‘All Counties within the definitions related to demographic data points 18 FEMA is also providing additional clarity on United States,’’ Topics: B19056, 5-year estimates. including the following terms: Assistance and what constituted trauma in the Casualties factor The unemployment data at the state and county Subsidies, Age, Disability, Language Spoken at which can be found in the proposed new 44 CFR level are respectively available at http:// Home, and Ability to Speak English. 206.48(b)(5) and is discussed below.

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FEMA is requesting information on an information regarding the impact on indicate a heightened need for activity or disruption that lasts for more essential community services for a supplemental Federal assistance than 72 hours for each of the below period greater than 72 hours in a new because casualties are clearly indicative components. As a general matter paragraph 44 CFR 206.48(b)(4)(ii). of the level of trauma in the affected members of the public should be Essential community services are area. Moreover, each of the proposed prepared to potentially be on their own services that improve the quality of life data points link to one or more types of at least 72 hours after a disaster.19 It for a person in a community but do not assistance under IA programs. The may take FEMA up to 72 hours to assess sustain a person’s life. FEMA is estimated number of missing and mobilize Federal assets to help a requesting information on the impact of individuals can highlight how traumatic State that is overwhelmed by a disaster. the disaster on essential community an event was for a community and In addition, preparing for at least this services such as, but not limited to, indicate a potential need for crisis amount of time will allow emergency schools, social services programs and counseling. This information may also responders to focus on those individuals providers, child care, and eldercare. be an indicator that additional injured requiring more immediate assistance. Information on the impact of the or deceased individuals may be Life-Saving and Life-Sustaining disaster on essential community discovered during the course of the Services. FEMA is proposing that a State services can include, for instance, the disaster recovery. The estimated number provide information regarding the number of schools closed, whether any of injured individuals may also indicate impact of the disaster on life-saving and social service programs or providers a need for crisis counseling as well as life-sustaining services for a period of such as Meals on Wheels were affected medical or dental assistance under the greater than 72 hours in a new by the disaster, and the number of ONA provision of the Individuals and paragraph 44 CFR 206.48(b)(4)(i). FEMA providers of child care or eldercare in Households Program. The estimated is specifically seeking information on the community that closed. Significant number of deceased individuals may services such as, but not limited to, or extended disruptions to these indicate a need for crisis counseling as police, fire/EMS, hospital/medical, services will hinder the affected well as funeral assistance under ONA. sewage, and water treatment services community’s ability to recover from a These proposed data points are typically because prolonged disruption may affect disaster. provided by the State already. the viability of a community and Transportation Infrastructure and necessitate survivor relocation. The Utilities. FEMA is proposing that the F. 44 CFR 206.48ÐParagraph (b)(6) effects of a disaster will increase the State provide information regarding the Disaster Related Unemployment demand for life-saving and life- impact of the disaster on transportation In FEMA’s current regulations, FEMA sustaining services and necessitate a infrastructure and utilities in a new considers whether ‘‘special more robust response. Significant or paragraph 44 CFR 206.48(b)(4)(iii). populations,’’ such as the unemployed, extended disruptions to these services Specifically, FEMA is seeking are affected by the disaster and whether will hinder a community’s ability to information on the number of roads, they may have a greater need for recover from a disaster. bridges, tunnels, and public transit assistance in 44 CFR 206.48(b)(3). As Life-saving services are services that closures and utility outages of water, discussed above, FEMA is proposing to provide an essential community power, sewage, and gas that last longer add a ‘‘Disaster Impacted Population function that, if interrupted, will affect than 72 hours. Transportation Profile’’ factor, which incorporates public health and safety in a infrastructure or utility disruptions can consideration of a number of special community. Some typical examples of render housing uninhabitable or populations, including the percentage of life-saving services data that FEMA is inaccessible for disaster survivors, affect low-income, unemployed, and elderly requesting are whether emergency the delivery of life sustaining individuals within the population. medical services such as ambulances, commodities, provision of emergency In addition, FEMA is proposing a new fire services, police services, or hospital services, ability to shelter in place, and factor, ‘‘Disaster Related services are affected by the disaster. efforts to rebuild. Significant or Unemployment,’’ in a new paragraph 44 Life-sustaining services are services that extended disruptions to this CFR 206.48(b)(6) that will evaluate are required to support life and well- infrastructure will hinder the affected unemployment in a different manner being within a community and are community’s ability to recover from a than FEMA’s current regulations. necessary for the community to function disaster. FEMA’s current regulations are focused as normal. Some typical examples of primarily on those that are unemployed life-sustaining services data that FEMA E. 44 CFR 206.48ÐParagraph (b)(5) prior to the disaster. In this new factor, is requesting are whether any Casualties FEMA will seek to identify individuals community healthcare programs, In FEMA’s current regulations, at 44 that may have lost work or become assistance to homebound individuals CFR 206.48(b)(2)(i), FEMA evaluates the unemployed as a result of the disaster. such as Meals on Wheels, or food degree of trauma to a State and to The Disaster Unemployment providers such as grocery stores or communities, including consideration Assistance program (DUA), operation of restaurants are affected by the disaster. of ‘‘large numbers of injuries and which has been delegated to the Essential Community Services. FEMA deaths.’’ As discussed above, SRIA Department of Labor, 44 CFR 206.141, is proposing that a State provide specifically directed FEMA to clarify the provides unemployment benefits and re- factor related to trauma; the proposed employment services to individuals 19 See the following Web sites as examples: The changes to the Impact to Community who have become unemployed as a FEMA run national public service advertising (PSA) Infrastructure factor, described above, result of a major disaster and who are campaign Web site http://www.ready.gov/build-a- kit; the Texas Division of Emergency Management represent part of this effort. not eligible for regular State Web site http://www.txdps.state.tx.us/dem/ In addition, FEMA is proposing in a unemployment insurance. The types of Preparedness/emerSupplyKits.htm; the San new 44 CFR 206.48(b)(5) that States workers who typically receive such Francisco Department of Emergency Management submit information on the number of assistance are self-employed, service Web site http://www.sf72.org/home; and the New York City Office of Emergency Management Web individuals who are missing, injured, or industry workers, and seasonal workers site http://www.nyc.gov/html/oem/html/get_ deceased due to a disaster. FEMA such as those employed in tourism, prepared/supplies.shtml. believes that this information may fishing, or agriculture industries. In

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order to fully evaluate whether or not G. Principal Factors for Evaluating the the event and to compare that estimated DUA is appropriate, FEMA is requesting Need for the Individuals and need to the fiscal capability of the that a State provide information on the Households Program requesting State. estimated number of disaster survivors FEMA is proposing that the principal FEMA evaluated major disaster who lost work or became unemployed factors it will consider in evaluation of declaration requests including IHP due to a disaster and who do not qualify any major disaster declaration request between January 2008 and July 2013 for standard unemployment insurance. for IHP will be the fiscal capacity of the and determined that the uninsured home and personal property losses’ In addition, FEMA is requesting that requesting State (44 CFR 206.48(b)(1)(i)) estimated cost of assistance was an a State provide information regarding and the uninsured home and personal important factor driving whether a any major employers that are affected in property losses (44 CFR 206.46(b)(2)). major disaster declaration authorizing the area by the disaster because it may As discussed above, major disaster declarations are based upon a finding IHP was declared by the President. highlight an additional need for the that the event is of such severity and FEMA found that 97% of requests community in their recovery efforts. magnitude that effective response and involving estimated costs of assistance When a major employer in a community recovery is beyond the capabilities of that were equal to or greater than $7.5 is affected by a disaster, it can signal to the State and affected local million were granted major disaster FEMA that the community will have a governments. IHP provides grants and declarations authorizing IHP, while only prolonged recovery because a large direct assistance to eligible disaster 6% of requests involving estimated amount of individuals may be out of survivors who have necessary and costs of assistance equal to or less than work and unable to support their own serious needs that they are unable to $1.5 million were granted. Requests recovery efforts. This may further meet through other means. In order to falling between those numbers were indicate need for DUA and other IA determine the need for IHP, it is much more uncertain, with programs. FEMA anticipates that the important to evaluate the total estimated approximately 44% granted, as reflected State will provide this information. need for such assistance resulting from in Table 1.

TABLE 1—ESTIMATED COST OF ASSISTANCE TO DECLARATION DECISION COMPARATIVE

Number of Number of Percentage Dollar amount of estimated costs of disaster disasters of disasters assistance requests declared declared

$7.5 million or more ...... 32 31 97 $1.5 million to $7.5 million ...... 87 38 44 $1.5 million or less ...... 34 2 6 * Based on major disaster declaration requests including IHP between January 2008 and July 2013.

Similarly, FEMA found that the ratio estimated $2,000,000 in IA costs and the consider the circumstances of each of IA Cost to Capacity (ICC),20 which is State’s TTR was $30,000,000,000, FEMA event. Moreover, FEMA recognizes that the estimated cost of IA divided by the divided $30,000,000,000 by $1,000,000 this kind of analysis can help identify State’s TTR in millions, was particularly to get the State’s TTR in millions which trends and ensure consistent indicative of the declaration result is $30,000. FEMA then divided decisionmaking over time, but does not above and below certain levels. FEMA $2,000,000 by $30,000 to get the ratio of always provide the full scope of conducted a review of 153 21 major IA Cost to Capacity (ICC) of 66.7. information necessary for FEMA to disaster declaration requests that Based on the ICC calculation for all make an informed recommendation. included IA that were submitted 153 State requests, there is a general However, FEMA believes that between January 2008 to July 2013 to trend that shows the greater the ICC providing these types of trends and determine if there would be any impact ratio for a major disaster declaration historic data is important to help guide from using TTR in assessing a State’s request that included IA, especially States in their consideration of whether need for a major disaster declaration above 25, the more likely the request or not an event might warrant a major authorizing IA. Each State request would be granted. Additionally, the disaster declaration authorizing IA. The included an estimate of the costs from lower the ICC ratio for a major disaster trends and historical data will also help the damages attributed to the disaster declaration request that included IA, guide State planning with respect to event. FEMA retrieved the TTR per especially below 10, the more likely the what level of IHP damage they should State at the time of each request. For request was denied. Major disaster expect to handle without supplemental each request, FEMA divided the declaration requests for IA with an ICC Federal assistance. This type of estimated cost by the State TTR in greater than 25 were granted 95% of the planning guidance is consistent with the millions. For example, if a State time, while requests with an ICC below original intent behind the table 10 were granted only 7% of the time. currently in 44 CFR 206.48(b)(6). As 20 See the discussion in V. Regulatory Analysis; Requests with ICCs falling in between discussed above, the data in that table A. Executive Order 12866; 5. Impacts to Costs, 10 and 25 were granted approximately eventually became out of date and it no Benefits, and Transfer Payments; d. Transfer half the time. longer has any utility as a planning tool. Payments, for more detailed explanation of ICC and these findings. FEMA is not proposing to use these In order to ensure that the most useful 21 For the analysis on TTR, FEMA excluded numbers as a hard ‘‘threshold’’ or and up to date data and information are disaster declaration requests that did not include a incorporate them into regulation available to States for guidance and request for IA. FEMA also excluded duplicate because there is no one factor required planning purposes, FEMA proposes to requests, U.S. territories’ requests (because there is no TTR data available), requests without summaries to receive a major disaster declaration compile and periodically publish of the PDA data or with insufficient data, and authorizing IA and we want to preserve aggregate PDA data for major disaster requests that involved an expedited decision. the President and FEMA’s discretion to requests, including IHP. Currently,

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FEMA publishes Preliminary Damage the specific factors through guidance and of promoting flexibility. This rule Assessment Reports 22 for every request will allow FEMA to be more nimble in has been designated a ‘‘significant for a major disaster declaration. These adapting to changing circumstances or regulatory action’’ although not reports lay out the PDA data that was changing priorities, while also creating economically significant, under section provided in the Governor’s request and an important transparency benefit for 3(f) of Executive Order 12866. indicate whether or not the request State and local governments. Accordingly, the rule has been reviewed resulted in a declaration. Upon It is important to note that certain by the Office of Management and finalization of new IA declaration disasters may present unique Budget. factors, FEMA intends to continue circumstances which cannot be This proposed rule would impose a anticipated by regulation or policy publishing these reports with new cost burden of $3,752 in the first year guidance, as such States may submit, declaration factors. In addition, FEMA of implementation and $1,609 annually and FEMA may evaluate, all relevant intends to periodically publish the for subsequent years. During the ten information. In addition, FEMA only aggregate data from these reports in a year period following the final rule’s evaluates requests and makes format that will assist States in effective date, the total cost would be recommendations to the President. The evaluating the likelihood of receiving a $18,233 undiscounted. The ten year sole discretion to approve or deny any major disaster declaration for a specific present value total cost would be event and for planning for future events. request for major disaster declaration $15,806 and $13,302 if discounted at By publishing this information in request lies with the President. three and seven percent, respectively. periodic guidance, and not codifying it V. Regulatory Analysis The small annualized cost of the in regulation, FEMA would ensure that proposed rule would be $1,853 at three the data remains timely and useful. A. Executive Order 12866, Regulatory percent and $1,894 at seven percent.23 In addition to publishing PDA data, Planning and Review and Executive FEMA intends to publish guidance that Order 13563, Improving Regulation and Despite the newly identified factors, provides clarity to States on how FEMA Regulatory Review this proposed rule would not change the would utilize the new proposed factors total amount of assistance available to when it evaluates major disaster 1. Executive Summary & A–4 individuals and households because declaration requests that include IA. Accounting Statement much of the proposed rule codifies This guidance will provide additional Executive Orders 13563 and 12866 FEMA’s evolving declarations practice detail regarding analysis of the principal direct agencies to assess the costs and since 1999. FEMA does not anticipate factors as well as other factors identified benefits of available regulatory the two newly proposed factors would in the proposed rule. FEMA intends to alternatives and, if regulation is change the total amount of individual publish the guidance for public necessary, to select regulatory assistance as well, which is discussed in comment to this rulemaking docket, and approaches that maximize net benefits the following sections. Benefits of the FEMA will develop the final rule and (including potential economic, proposed rule include clarifying guidance as a pair taking into environmental, public health and safety FEMA’s existing practices, reducing consideration all comments received on effects, distributive impacts, and processing time for requests due to the NPRM and guidance. Over time, equity). Executive Order 13563 clarifications, and providing States with FEMA may update this guidance as emphasizes the importance of notice of the new factor information necessary. The provision of more quantifying both costs and benefits, of FEMA is proposing to consider as part specific details regarding evaluation of reducing costs, of harmonizing rules, of the IA declarations process.

A–4 ACCOUNTING TABLE

Estimates Units Category Primary Low esti- High esti- Discount Notes estimate mate mate Year dollar rate Period covered

Benefits

Annualized Monetized None None None NA NA NA...... Not Quantified. ($millions/year). Annualized Quantified...... None None None NA NA NA...... Not Quantified.

Qualitative ...... The proposed rule more clearly identifies declaration factors FEMA considers in making its recommendation to the President on a major disaster declaration authorizing IA. It codifies many factors FEMA currently considers but are not specifically identified in 44 CFR 206.48(b). The proposed rule may also result in regulatory efficiencies due to reduced process time and effort (back and forth). In addition, the newly identified factors would pro- vide FEMA additional information on a requesting State’s fiscal capacity and resource availability.

Costs

Annualized Monetized ...... $1,894.0 $0.0 $0.0 2013 7% 10 Years ...... None. $1,853.0 $0.0 $0.0 2013 3% 10 Years.

22 These can be found on FEMA’s Web site at: 23 FEMA includes estimates of discounted present 2003. Available at: http://www.whitehouse.gov/ https://www.fema.gov/preliminary-damage- value costs and annualized costs according to sites/default/files/omb/assets/omb/circulars/a004/ assessment-reports. guidance from OMB Circular A–4. Office of a-4.pdf. Management and Budget, Published September 17,

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A–4 ACCOUNTING TABLE—Continued

Estimates Units Category Primary Low esti- High esti- Discount Notes estimate mate mate Year dollar rate Period covered

Annualized Quantified...... None None None 2013 N/A 10 Years.

Qualitative ...... None.

Transfers

Federal Annualized Mone- None None None NA 7% NA...... None. tized ($millions/year). Other Annualized Monetized None None None NA 7% NA...... None. ($millions/year).

Effects

State, Local, and/or Tribal None None None N/A NA NA...... None. Government.

Small Business ...... FEMA certifies under 5 U.S.C. 605(b) that this proposed rule would not, if promulgated, have a significant economic impact on a substantial number of small entities. Wages ...... None. Growth ...... Not Measured.

2. Need for Regulatory Action and are not included in this proposed FEMA with the proposed information FEMA is proposing this rule to rule. Local governments are also not for major disaster declaration requests, provide clarity on the IA declaration affected by the proposed rule because as appropriate. A marginal analysis factors that FEMA currently considers the disaster related information local table evaluating each of the in support of its recommendation to the governments provide to the State is part considerations is provided later in the President on whether a major disaster of their current disaster response preamble and a more detailed table is declaration authorizing IA is warranted. process to provide situational awareness provided in the rulemaking docket. The additional clarity may reduce and ascertain need for further In addition, as stated previously, delays in the declaration process by assistance. Indian Tribal governments (requesting decreasing back and forth between 4. Current Baseline and Changes From assistance through the State) and local States and FEMA in the declarations Proposed Rule governments currently provide the process. FEMA is also proposing two proposed factor information for their The proposed rule largely codifies local area and affected residents to the new factors on Fiscal Capacity and many considerations that FEMA has Resource Availability to provide State in support of a State’s request and applied for several years under the its determination on whether a request additional context on potential disaster ‘‘other relevant information’’ prong of situations. The proposed rule would for a major disaster declaration the regulation but were not specifically authorizing IA is warranted. Therefore, also satisfy the requirements outlined in identified in FEMA regulations. FEMA Section 1109 of SRIA. FEMA anticipates Indian Tribal reviewed State major disaster governments (requesting assistance 3. Affected Population declaration letters that requested IA for through the State) and local numerous disasters and found that Requests for a Federal major disaster governments will not incur additional States typically included more declaration authorizing IA must come costs by the proposed regulation. information and data than what is from a State’s Governor. 44 CFR FEMA is also proposing to include specifically identified in the current 206.36(a). As such, the proposed rule two new factors: Fiscal Capacity and regulations at 44 CFR 206.48(b).24 As affects the 56 States that are eligible to Resource Availability. Both new factors such, costs for States would be request a Presidential major disaster have small burden increases associated minimally impacted by the proposed declaration authorizing IA. States are with obtaining the additional rule because States currently provide defined in 44 CFR 206.2(a)(22), and information. FEMA considers Fiscal include any State of the United States, Capacity data solely a Federal burden 24 FEMA reviewed a sample of State major the District of Columbia, Puerto Rico, disaster declaration request letters and found that increase since it intends to collect the the Virgin Islands, Guam, American each letter was unique and provided many of the information. Resource Availability Samoa, and the Commonwealth of the data points and information that would be information is considered a State explicitly included under the proposed regulation. Northern Mariana Islands. The information submitted will vary depending on burden increase since States would Although Section 1110 of SRIA the disaster, the scope of damages and the need for provide such information. However, amended the Stafford Act to allow assistance. FEMA does not require every data point FEMA does not anticipate either new Federally recognized Indian Tribal to be submitted to get a declaration. Some requests factor to impact the number of IA will have more data or information, while other governments to submit requests for requests will have less. For instance, in more severe declaration requests received or the emergency or major disaster events to less resilient areas, the States did not need amount of IA assistance provided, and declarations, SRIA charged FEMA to to provide a large amount of information to get a therefore no impact to transfer implement that authority separately by declaration, because it was evident to FEMA and payments. the White House that the individual assistance rulemaking. Thus such declarations needs were outside the capacity of the requesting Fiscal Capacity. FEMA recognizes would be covered by a separate process State. that each State’s capacity to respond

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and recover varies based on the a result of previous disasters. FEMA circumstances of a disaster may not circumstances of the disaster and the intends to include this factor to allow a State to collect all of the State’s resources. FEMA intends to encourage States to continuously information identified within the include the consideration of fiscal evaluate and improve their disaster proposed rule. States would need to capacity data to better evaluate a State’s planning and relief programs based on provide information that supports their ability to adequately respond to a lessons learned from previous disasters. request for a major disaster declaration disaster with or without supplemental On the other hand, States that authorizing IA, but would not have to Federal assistance. The GAO has continually fail to address limitations or address every data point in the suggested in multiple reports that FEMA shortfalls identified after previous proposed rule to be granted the request. should incorporate States’ fiscal events would be a consideration in For example, for a catastrophe of capacity into its considerations for FEMA’s deliberation. Nonetheless, unusual severity and magnitude such recommendations on disaster FEMA does not expect that the that preliminary damage assessments declarations to the President. Though inclusion of this factor would affect the are not necessary to determine the the GAO reports have focused on overall number of major disaster requirement for Federal assistance, including fiscal capacity in FEMA’s PA declarations authorizing IA as this factor States may submit an abbreviated declaration factor criteria, FEMA would be considered with a number of request pursuant to 44 CFR 206.36(d), believes that there is a need to assess a other factors and would not, in which need only contain limited State’s capacity to respond and recover isolation, determine whether a information required by that provision. on its own when determining whether declaration is recommended. The proposed rule is identifying factors, which FEMA would consider in its a major disaster declaration that 5. Impacts to Costs, Benefits, and review of a major disaster declaration authorizes IA is warranted as well. Transfer Payments Furthermore, the GAO supported the request that includes IA when making use of TTR as a measure of a State’s In the following section, FEMA recommendations to the President, but fiscal capacity because it is a discusses the proposed rule’s quantified ultimately the amount of data provided comprehensive estimate of the resources costs for States and the Federal by the State is voluntary. that could potentially be subject to State government, qualitative benefits, and FEMA anticipates information on taxation.25 Therefore, FEMA is why there are no expected impacts to State services and planning after prior proposing to include fiscal capacity as transfer payments. disasters would be addressed in a short an additional factor in its determination. a. State Costs summary in the Governor’s request. To ascertain a State’s fiscal capacity to FEMA program employees who work As stated previously, many of the with declarations estimate that a State respond to a major disaster, FEMA factors listed in the proposed rule have intends to review data on a State’s Total would spend an additional 30 minutes previously been submitted or requested collecting and incorporating Taxable Resources (TTR). The U.S. subsequent to a State request and thus Department of Treasury calculates the information on State services and are estimated to have no new costs. The planning after prior disasters into the TTR of the State, which is used as a two proposed additional factors that measure of a State’s fiscal capacity.26 State’s declaration request. FEMA have not been typically provided or assumes this time would be used to TTR is based on the GDP per State but considered would impose a new cost. makes adjustments for additional, write a paragraph or two on why the FEMA intends to obtain data related to State lacks the resources to provide potentially-taxable income flows like fiscal capacity from publicly accessible sufficient services to its citizens and any capital gains and commuter income. databases and Web sites at no cost to new or existing State individual FEMA acknowledges that TTR does not States. Providing information on State assistance programs or improvements capture a State’s actual tax revenue or services and planning after prior made to State individual assistance expenditures and cannot be viewed as a disasters would impose a new cost on programs as a result of previous financial accounting of a State’s budget. States. In addition, FEMA assumes the disasters. FEMA assumes that a State TTR is instead intended to measure all proposed rule may have an initial would be aware of their own service and income flows a State can potentially tax. implementation cost for States to program capabilities prior to Resource Availability. Relative to familiarize themselves and understand considering whether a request for a State services and planning after prior the new factor data requirements. major disaster declaration that disasters, FEMA encourages States to If a State is unable to provide authorizes IA is warranted. In addition, continuously improve their own information for a particular factor or a State may build upon past requests in disaster assistance programs for their factors, FEMA would evaluate and subsequent requests depending on citizens. States should identify any new provide a recommendation on the whether their program efforts have been individual assistance programs as well State’s need for Federal assistance based ongoing or have changed.27 FEMA as any improvements to existing on the information submitted and data previously estimated that States spend individual assistance programs made as available from other sources, as 33 hours on average to compile, write, appropriate. The only required elements and submit a request for a declaration.28 25 United States Government Accountability of a State’s major disaster declaration Office, FEDERAL DISASTER ASSISTANCE: FEMA assumed the equivalent of a State Improved Criteria Needed to Assess a Jurisdiction’s request appear at 44 CFR 206.36. Government Chief Executive, a senior Capability to Respond and Recover on Its Own, FEMA’s intent, through this proposed GAO–12–838, September 2012, Page 31. Available rule, is to clearly identify the considered 27 FEMA recognizes there may be a level of at: http://www.gao.gov/assets/650/648162.pdf. data points that are previously captured repetition in a State’s request, but FEMA would 26 A 2012 GAO report stated that other Federal under the ‘‘other relevant information’’ prefer to ensure it has up to date information, departments and agencies have used TTR data to including recent efforts from previous disasters, for determine a jurisdiction’s fiscal capacity and the prong of the regulation to inform the the White House and FEMA to consider. extent to which a jurisdiction should be eligible for States’ formulation of their request. In 28 FEMA has provided the supporting statement Federal assistance; specifically the Department of some scenarios, certain pieces of document for the information collection, OMB Health and Human Services’ Substance Abuse and information identified in the proposed Control Number 1660–0009, in the public Mental Health Services Administration’s block rulemaking docket. The supporting statement dated grant program and Community Mental Health rule may be inapplicable or unavailable. February 25, 2013 was the latest supporting Service. In addition, FEMA recognizes that the statement prior to this proposed regulation.

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level government official familiar with Federal disaster assistance exists regulation when reviewing major State emergency assistance programs, without the State providing additional disaster declaration requests. In would prepare the Request for information identified in the proposed addition, FEMA has already begun to Presidential Disaster Declaration Major rule. Thus the proposed rule provides change the way it collects information Disaster or Emergency, FEMA Form the State with the types of requested for major disaster declaration 010–0–13. Per the U.S. Department of data that informs FEMA’s recommendations that did not require Labor Bureau of Labor Statistics, the recommendation and ultimately, the regulatory action. average hourly wage rate for a State President’s determination of a State’s In the past, FEMA would review pre- Government Chief Executive is $54.66 need for a major disaster declaration disaster data about a disaster location. which FEMA multiplied by 1.4 to that authorizes IA. This pre-disaster data provided FEMA account for benefits.29 This results in a To estimate the time for States to information about the disaster location fully loaded State Government Chief understand changes made to the that helped to illustrate the population Executive hourly wage rate of $76.52. regulations, State governments would and area that was impacted by a Between January 2004 and December spend time reading the proposed and disaster. The pre-disaster data came 2013, FEMA received 413 requests for a existing regulations. Based on a sample from Federal sources, such as the major disaster declaration that of FEMA employees who formerly United States Census Bureau and the authorized IA. FEMA divided 413 by worked for State governments, FEMA Bureau of Labor Statistics. Independent ten years to estimate that States would estimates States would spend 30 of the regulation, FEMA had begun a submit an average of 41 requests for minutes (0.5 hours) to familiarize process to streamline how pre-disaster major disaster declarations authorizing themselves and understand the new 31 data is collected and disseminated as IA per year. FEMA multiplied 30 factor data requirements. FEMA well as improving the efficiency and minutes (0.5 hours) by the fully loaded assumes the equivalent of a State speed of the PDA process by using new Government Chief Executive, a senior hourly wage rate of $76.52 and 41 technologies and processes to collect level government official familiar with submissions to get an annual cost of and transmit information faster. $1,569 (0.5 × $76.52 × 41 = $1,568.66). State emergency assistance programs, As noted above, most of the would read the existing and new One of the areas where FEMA would information included in the proposed regulations to understand the changes. incur costs is for the retrieval of fiscal factors is information that was FEMA multiples the fully loaded hourly capacity data from Treasury and BEA. previously captured under the ‘‘other wage rate of a State Government Chief To estimate the additional activity time, relevant information’’ prong of the Executive, calculated above as $76.52, FEMA performed a dry run retrieval and regulation and has been considered, as by 0.5 hours and 56 States, to calculate storage of the relative fiscal capacity appropriate, when evaluating requests an increased State cost of $2,143 ($76.52 data. To retrieve, store, and update for a major disaster declaration that × 0.5 × 56 = $2,142.56). FEMA assumes Treasury’s TTR data (including all State authorized IA. However, FEMA at times State governments would read the data in a single retrieval), FEMA has had to reach back to the State for regulation once in the first year it goes estimates it would take 10 to 15 additional information.30 By clearly into effect and would subsequently refer minutes, and uses the average of this identifying information considered in to supplemental guidance materials, range, 12.5 minutes, for the purposes of the proposed rule, FEMA anticipates such as the Governor’s request template, this analysis. FEMA estimates it would that such delays in the declaration to complete requests. take the equivalent amount of time for process would be diminished. With the FEMA estimates total State costs in the BEA’s GDP per State data, and uses changes in the proposed rule, the the first year to be $3,712. FEMA 12.5 minutes as well. FEMA estimates it regulations would improve clarity estimates State costs in subsequent would take 15 to 30 minutes to retrieve regarding potentially relevant years to be $1,569. BEA per capita personal income data and uses the average of 22.5 minutes. information. States would be b. Federal Costs encouraged to include the fulsome FEMA sums these three time burdens to FEMA anticipates the Federal information in the original request, calculate a total burden of 47.5 minutes government would incur minor which could potentially eliminate and divides by 60 minutes, for an additional costs by the rule because, as follow-up correspondence and speed up estimated increase burden of 0.79 hours noted above, FEMA already considers × the determination of a major disaster ((12.5+12.5+22.5)/60=0.7917). most of these factors under the ‘‘other declaration request. Although FEMA FEMA anticipates this data retrieval relevant information’’ prong of the recognizes that large scale disasters may to take place once annually, and to be not need as much detail or data to completed by a Federal employee in the 31 To estimate the time for States to familiarize DC area at the General Schedule 12, support a major disaster declaration themselves and understand the new factor data request due to the extent of IA damage requirements, FEMA surveyed its own employees Step 1 level, at an hourly wage rate of costs; other disasters may be more who formerly worked for State governments. $36.23.32 FEMA multiplies this wage difficult to determine if a need for Thirteen employees were identified who worked for rate by 1.4 to account for benefits, various States, representing multiple regions, State resulting in a fully loaded wage rate of sizes, and a range in years of service in State 29 U.S. Department of Labor, Bureau of Labor government and FEMA. These employees were $50.72. FEMA multiplies the time per Statistics, Occupational Employment Statistics, asked to read the proposed and existing regulations year, 0.79 hours by the fully loaded May 2013 National Industry-Specific Occupational and answer questions to test their understanding of wage rate of $50.72, to get an annual Employment and Wage Estimates, NAICS code the changes. The employees were also provided a Federal cost increase of $40 (0.79 x 999200, State Government excluding schools and copy of excerpts of this regulatory preamble if they hospitals, and Standard Occupational Classification needed further information to answer the test. (SOC) code 11–1011 for Chief Executive. http:// About 40 percent of the employees referred back to 32 The General Schedule (GS) 12 (Step 1) hourly www.bls.gov/oes/2013/may/naics4_999200.htm. the preamble to answer the questions. It took an wage of $36.23 is taken from the Office of Personnel 30 Historically, FEMA has attempted to cure some average of 17 minutes to read the existing and Management; 2014 General Schedule (GS) salaries of the lack of clarity by providing States with major proposed regulatory text and 11 minutes to answer & wages tables; locality pay tables (Washington- disaster declaration request template letters, which the questions, including referring back to the Baltimore-Northern Virginia, DC–MD–VA–WV– provided a suggested organizational structure for preamble. FEMA rounded 28 minutes (11minutes PA). Retrieved 7/30/14 from http://www.opm.gov/ States to follow when making their request for a +17minutes) to 30 minutes and uses 0.5 hours to policy-data-oversight/pay-leave/salaries-wages/ major disaster declaration. calculate the costs. 2014/general-schedule/.

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$50.72 = $40.07), and ten-year total The following table displays the ten discounted at seven percent) for the Federal increase of $400. year total costs (undiscounted, proposed rule. discounted at three percent, and

TABLE 2—TOTAL COSTS OF THE PROPOSED RULE

State costs Year State initial (providing FEMA costs Undiscounted Annual costs Annual costs review cost information) (retrieving data) annual costs discounted at 3% discounted at 7%

1 ...... $2,143 $1,569 $40 $3,752 $3,643 $3,507 2 ...... 1,569 40 1,609 1,517 1,405 3 ...... 1,569 40 1,609 1,472 1,313 4 ...... 1,569 40 1,609 1,430 1,227 5 ...... 1,569 40 1,609 1,388 1,147 6 ...... 1,569 40 1,609 1,348 1,072 7 ...... 1,569 40 1,609 1,308 1,002 8 ...... 1,569 40 1,609 1,270 936 9 ...... 1,569 40 1,609 1,233 875 10 ...... 1,569 40 1,609 1,197 818

Total ...... 2,143 15,690 400 18,233 15,806 13,302

c. Benefits addition, information considered may affect the overall number of major Benefits of the proposed rule include be available more quickly and provide disaster declarations authorizing IA as clarifying FEMA’s existing practices, a fuller context. Such measures may this factor would be considered with a reducing processing time for requests, also be more objective compared to number of other factors and would not, and providing States with notice of the other perceptions of a State’s capacity to in isolation, determine whether a new factor information FEMA is respond. This would also provide notice declaration is recommended. proposing to consider as part of the IA to States of the new factor information Fiscal Capacity. Although FEMA is declarations process. States have the FEMA would consider. introducing a factor for fiscal capacity, analysis conducted in preparation of ability to assess and determine what d. Transfer Payments information supports a major this proposed rule reveals that FEMA’s declaration request. The proposed rule First, it is important to note that the recommendations and major disaster would identify factors considered in the ultimate determination regarding declarations by the President in the past IA declarations process, including many whether or not to grant a State’s request have a correlation to the fiscal capacity of the requesting State. Historically, factors that FEMA previously for a major disaster declaration resides FEMA captured an aspect of fiscal considered under the ‘‘other relevant with the President. FEMA does not capacity when evaluating the damage information’’ prong of the regulation, anticipate or intend for this proposed caused by each disaster in relation to but are not currently specified in 44 rule to affect the number of major the population of the affected State. CFR 206.48(b). disaster declarations authorizing IA In the past, FEMA may have at times granted each year. As FEMA has States with the highest TTR also tend to had to follow up for additional previously considered the majority of have the highest population. As such, information on major disaster the proposed factors in past declaration major disaster declarations authorizing IA have had a correlation to the fiscal declaration requests to better support requests for individual assistance and capacity of the requesting State. FEMA’s recommendation on a major data used in the proposed new factors FEMA conducted a review of 153 34 disaster declaration authorizing IA. This are correlated to past declaration major disaster declaration requests that regulation would improve clarity on the recommendations, FEMA anticipates this proposed rule would not have an included IA that were submitted factors that FEMA considers when between January 2008 to July 2013 to evaluating the need for a major disaster impact on transfer payments, which are payments from the Federal government determine if there would be any impact declaration authorizing IA. FEMA from using TTR in assessing a State’s expects this to lessen or possibly to States and individuals. FEMA intends the proposed rule to need for a major disaster declaration eliminate the need to go back to the authorizing IA. Each State request 33 identify factors that it would use when States for additional information. included an estimate of the costs from The two newly identified factors making recommendations to the the damages attributed to the disaster President. FEMA already considers the would also provide additional context event. FEMA retrieved the TTR per majority of factors described in the to a State’s circumstances to help inform State at the time of each request. For proposed rule during previous FEMA’s recommendation. FEMA each request, FEMA divided the deliberations on whether to recommend believes the inclusion of fiscal capacity estimated cost of IA by the State TTR in a major disaster declaration authorizing would further inform and strengthen millions. For example, if a State IA to the President. The only data items FEMA’s recommendations to the estimated $2,000,000 in IA costs and the that FEMA has not considered in the President with regard to major disaster State’s TTR was $30,000,000,000, FEMA declarations that authorize IA. In past are the data on (1) State services and planning after prior disasters and 34 For the analysis on TTR, FEMA excluded 33 In making past determinations, FEMA has not (2) the fiscal capacity factor. disaster declaration requests that did not include a tracked the length of time or the number of written State Services and Planning after request for IA. FEMA also excluded duplicate or oral correspondence with the State to retrieve Prior Disasters. As stated previously, requests, U.S. territories’ requests (because there is additional data. Therefore FEMA cannot quantify no TTR data available), requests without summaries the potential savings from the clarifications FEMA does not expect that the of the PDA data or with insufficient data, and provided in the proposed regulation. inclusion of these data items would requests that involved an expedited decision.

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divided $30,000,000,000 by $1,000,000 ratio for a major disaster declaration request was denied. The following table to get the State’s TTR in millions which request that included IA, especially displays the total number of requests is $30,000. FEMA then divided above 25, the more likely the request and the total granted major disaster $2,000,000 by $30,000 to get the ratio of would be granted. Additionally, the declarations based on ICC ratio size as ICC (IA Cost to Capacity) of 66.7. lower the ICC ratio for a major disaster well as the percentage of granted major Based on the ICC calculation for all declaration request that included IA, disaster declaration requests within the 153 State requests, there is a general especially below 10, the more likely the respective ICC group. trend that shows the greater the ICC

TABLE 3—NUMBER OF IA REQUESTS AND GRANTED IA REQUESTS BY ICC RATIO

Percentage of Number of Number of Percentage of approved ICC Ratio requests approved approved requests (2008–2013) requests requests in range (2008–2013) (2008–2013) (2008–2013)

>25 ...... 43 41 57.7% 95% 10–25 ...... 53 26 36.6% 49% <10 ...... 57 4 5.6% 7%

Total ...... 153 71 100%

Based on the above data, there were high IA cost estimates, and though the recommendations regarding major 53 major disaster declaration requests State had a higher than average TTR, the disaster declarations that include IA and that included IA with ICC ratios major disaster declaration authorizing acknowledges that the new data points between 10 and 25; and 26 of these IA was still granted. FEMA recognizes would be utilized in conjunction with requests were declared major disasters that some disasters cause enough several other data points. FEMA would that included IA. Hence, approximately damage to overwhelm even the most continue to use a myriad of factors and half (26/53 = 49 percent) of major prepared and fiscally capable States and data to formulate its recommendations disaster declaration requests with ICC local governments and that disasters to the President on major disaster ratios between 10 and 25 that included may have special circumstances declarations that authorize IA. No single IA were granted. FEMA believes this warranting assistance. data point or factor would singularly approval rate helps illustrate that other FEMA’s intent in this proposed rule is affect FEMA’s recommendation nor to continue to take multiple factors into factors are taken into consideration would each individually affect the when determining FEMA’s consideration in addition to TTR. President’s ultimate determination of recommendation especially in Therefore, fiscal capacity would be whether a major disaster declaration borderline events. more relevant following events where it In addition, based on the above data, is not clear whether or not the State and authorizing IA is warranted. the higher the estimated cost of IA affected local governments are, in fact, 9. Cumulative Impact of the Proposed damages and the lower the State TTR, overwhelmed. Rule the more likely a major disaster Based on the above analysis, FEMA declaration request authorizing IA was concluded that even though fiscal FEMA has reviewed the proposed granted in the past. FEMA did not capacity is a new factor, it would not rule’s impact on States that request a review TTR data when making these have an impact on the overall number Presidential major disaster declaration previous decisions; however there of major disaster declarations granted that authorizes IA. FEMA estimates the appears to be a past trend that decisions each year that authorize IA because cumulative impact of all the factors had an inverse correlation between FEMA previously followed a trend that together will result in a minor burden estimated IA costs and State TTR. This utilized similar economic data and takes increase for States to provide more is likely because past declaration various factors into account. Even information in their requests and for criteria, such as State population, are though FEMA did not collect or factor FEMA to retrieve data for its highly correlated with State TTR. the TTR per State in previous major consideration on requests. The net Furthermore, depictions of States’ disaster declaration recommendations quantified impact is a ten-year total cost economic health, similar to TTR, were that included IA to the President there of $18,233. This cost may be offset by already captured in data from State was a correlation; and FEMA assumes cost savings from efficiencies attributed major disaster declaration requests in that IA declarations will follow a similar to the information FEMA currently the past. For example, the State median trend in the future. iteratively requests from States but are household income and the State TTR FEMA also intends to review data on per capita are highly correlated because per capita personal income by local area not captured in the current regulations. States that have a higher median to ascertain a local government’s fiscal FEMA anticipates no cumulative impact household income also tend to have a capacity. FEMA previously evaluated to average annual transfer payments higher TTR per capita. Thus, FEMA data on median household income per based on the inclusion of all the assumes that the impact of considering county and foresees minimal impact proposed factors. Based on the above TTR in future major disaster declaration from also reviewing per capita personal analysis, FEMA estimates that this recommendations would be minimal income by local area because both data proposed rule is not an economically because FEMA previously considered points are indicators of the economic significant rulemaking because the data that follows the same trend as TTR. circumstances of local areas. proposed rule would impose an Furthermore, there were major Again, FEMA proposes the use of the disaster declaration requests that had fiscal capacity factor in future

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additional average annual burden of less included in the proposed rule. It also assistance available to individuals and than $2,000 35 on the public and FEMA. identifies which factors are new or households. A more detailed table 10. Marginal Analysis of the Proposed previously considered. Activity costs providing additional information is also Factors per year and associated benefits are also included in the rulemaking docket on included. The proposed rule would not www.regulations.gov. The following table provides a change the total amount of Federal breakdown of each IA declaration factor

TABLE 4—IA DECLARATIONS FACTOR MARGINAL ANALYSIS

Factor Status Activity cost per year Benefits

Fiscal Capacity: Total Taxable Re- New ...... $11—FEMA will spend 10–15 minutes Informs States that FEMA may assess sources (TTR) of the State a year retrieving and storing Treas- State’s taxable resources based on 44 CFR § 206.48(b)(1)(i)(A) ury data (including all State data in TTR and may use TTR to depict one retrieval). State economic growth or decline and relative fiscal capacity with com- parably-sized States or the Nation. Fiscal Capacity: Gross Domestic Prod- New ...... $11—FEMA will spend 10–15 minutes Informs States that FEMA may assess uct (GDP) by State a year for retrieving and storing BEA State fiscal capacity with this data 44 CFR § 206.48(b)(1)(i)(B) GDP data (including all State & Ter- point when TTR data is not available ritory data in one retrieval). or if the TTR data is inaccurate due to the 2 year lag in the data update. Fiscal Capacity: Per Capita Personal In- New ...... $19—FEMA will spend 15–30 minutes Provides FEMA the flexibility to use in- come by Local Area a year for retrieving and storing BEA formation on the local fiscal capacity 44 CFR § 206.48(b)(1)(i)(C) Per Capita Personal Income data characteristics to judge IA needs in annually (including data on all local disaster affected areas. areas in one retrieval). Fiscal Capacity: Other Factors New ...... $0—State time will vary and data will Provides FEMA the flexibility to use 44 CFR § 206.48(b)(1)(i)(D) be used on a case-by-case basis as any other data or information on a needed. State or local area’s fiscal capacity to judge disaster needs in affected areas. Resource Availability: State Tribal and Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Local Government Non-Governmental ered. current compliance. lation. Organizations (NGO) and Private Sector Activity 44 CFR § 206.48(b)(1)(ii)(A) Resource Availability: Cumulative Effect Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- of Recent Disasters ered. current compliance. lation. 44 CFR § 206.48(b)(1)(ii)(B) Resource Availability: State Services New ...... $784.5—15 minutes for States to dis- Provides FEMA more information to 44 CFR § 206.48(b)(1)(ii)(C) cuss why the State does not have evaluate the resources States have sufficient funding to provide ade- used. States consider their re- quate State services to its own citi- sources in their request. zens after a major disaster. Resource Availability: Planning After New ...... $784.5—15 minutes for States to dis- Provides FEMA more information to Prior Disasters cuss improvements to their State IA evaluate the State’s resource plan- 44 CFR § 206.48(b)(1)(ii)(D) programs and any disaster planning ning. State’s demonstrate they have that occurred after prior major disas- planned after recent disasters. ters. Uninsured Home and Personal Property Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Losses: The cause of damage ered. current compliance. lation. 44 CFR § 206.48(b)(2)(i) Uninsured Home and Personal Property Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Losses: The jurisdictions impacted ered. current compliance. lation. and concentration of damage 44 CFR § 206.48(b)(2)(ii) Uninsured Home and Personal Property Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Losses: The number of homes im- ered. current compliance. lation. pacted and degree of damage 44 CFR § 206.48(b)(2)(iii) Uninsured Home and Personal Property Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Losses: The estimated cost of assist- ered. current compliance. lation. ance 44 CFR § 206.48(b)(2)(iv) Uninsured Home and Personal Property Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Losses: The homeownership rate of ered. current compliance. lation. impacted homes 44 CFR § 206.48(b)(2)(v) Uninsured Home and Personal Property Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Losses: The percentage of affected ered. current compliance. lation. households with insurance coverage appropriate to the peril 44 CFR § 206.48(b)(2)(vi) Uninsured Home and Personal Property Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Losses: Other relevant preliminary ered. current compliance. lation. damage assessment data 44 CFR § 206.48(b)(2)(vii)

35 FEMA estimated the first year implementation for subsequent years in previous section of this cost of approximately $3,700 and $1,600 annually regulatory analysis.

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TABLE 4—IA DECLARATIONS FACTOR MARGINAL ANALYSIS—Continued

Factor Status Activity cost per year Benefits

Disaster Impacted Population Profile: Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- The percentage of the population for ered. current compliance, data collected in lation. whom poverty status is determined PDA process. 44 CFR § 206.48(b)(3)(i) Disaster Impacted Population Profile: Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- The percentage of the population al- ered. current compliance, data collected in lation. ready receiving government assist- PDA process. ance such as Supplemental Security Income and Supplemental Nutrition Assistance Program benefits 44 C.F.R § 206.48(b)(3)(ii) Disaster Impacted Population Profile: Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- The pre-disaster unemployment rate ered. current compliance, data collected in lation. 44 CFR § 206.48(b)(3)(iii) PDA process. Disaster Impacted Population Profile: Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- The percentage of the population that ered. current compliance, data collected in lation. is 65 years old and older PDA process. 44 CFR § 206.48(b)(3)(iv) Disaster Impacted Population Profile: Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- The percentage of the population 18 ered. current compliance, data collected in lation. years old and younger PDA process. 44 CFR § 206.48(b)(3)(v) Disaster Impacted Population Profile: Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- The percentage of the population with ered. current compliance, data collected in lation a disability PDA process. 44 CFR § 206.48(b)(3)(vi) Disaster Impacted Population Profile: Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- The percentage of the population who ered. current compliance, data collected in lation. speak a language other than English PDA process. and speak English less than ‘‘very well’’ 44 CFR § 206.48(b)(3)(vii) Disaster Impacted Population Profile: Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Any unique considerations regarding ered. current compliance. lation. American Indian and Alaskan Native Tribal populations that may not be re- flected in the U.S. Census Bureau data 44 CFR § 206.48(b)(3)(viii) Impact to Community Infrastructure: Life Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Saving and Life Sustaining Services ered. current compliance. lation. 44 CFR § 206.48(b)(4)(i) Impact to Community Infrastructure: Es- Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- sential Community Services ered. current compliance. lation. 44 CFR § 206.48(b)(4)(ii) Impact to Community Infrastructure: Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- Transportation Infrastructure and Utili- ered. current compliance. lation. ties. 44 CFR § 206.48(b)(4)(iii) Casualties: The number of missing, in- Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- jured, or deceased individuals ered. current compliance. lation. 44 CFR § 206.48(b)(5) Disaster Related Unemployment: The Previously Consid- $0—No change in time burden due to Clarification of current practice in regu- number of disaster survivors who lost ered. current compliance. lation. work or became unemployed due to a disaster and who do not qualify for standard unemployment insurance 44 CFR § 206.48(b)(6) All Factors : All Data Points 6 New & 22 Pre- $3752 in the first year and $1609 in Informs States with the information § 206.48(b) viously Consid- the subsequent annual reoccurring that FEMA considers when deciding ered. costs—Increase time burden due to whether to recommend an IA dec- new factors and time for the State to laration to the President’s Office. read and understand the new regu- lations.

11. Regulatory Alternatives alternative could have an impact on because their availability may be limited economic transfer payments or costs. by their financial circumstances, their FEMA includes the regulatory donors’ economic situations, and the a. Voluntary, Faith and Community alternatives to the proposed rule and the circumstances of their volunteers. Based Organizations Resources reasons for choosing not to use each FEMA recognizes this concern but alternative in the following discussion. FEMA considered removing the believes that information on the The decision on each alternative was information on resources available from activities of these organizations is based on qualitative factors and not on voluntary, faith, and community based valuable because it can enhance the a quantitative analysis of these organizations during disasters from its picture of disaster needs at a local level alternatives. When possible, FEMA list of determining factors. Stakeholders and may offset or reveal a need for acknowledges if the respective suggested removing these organizations supplemental Federal assistance. FEMA

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also recognizes that these organizations declared as a major disaster after an statutory authority and programs, which have limited resources, and considers event that crosses the borders of a may be available to assist businesses this point when determining the need declared State or county. FEMA absent a Presidential major disaster for an IA declaration. FEMA anticipates recognizes that State or county lines do declaration. FEMA did not quantify the there could be impacts on transfer not bind disaster events geographically, impacts of the alternative considering payments due to changes in the number but in considering whether to declare a business losses separately from business of disaster declarations if resources particular area, FEMA must consider the impacts to disaster survivors. available from voluntary, faith, and damages in the area as well as the e. Linking Individual Assistance Cost community based organizations were no capabilities of the jurisdictional Factor With Public Assistance Cost longer considered. If FEMA was to governments. The Stafford Act requires Factor remove this factor from consideration in that a Governor’s request for a major major disaster declaration request for disaster declaration be based on a FEMA considered aligning the IA, it could potentially move transfer finding that the disaster is of such financial indicators for IA and PA major payments in either direction, depending severity and magnitude to be beyond the disaster declarations based on on the situation. For example, if a State capabilities of the State and affected stakeholder recommendations. no longer describes how their voluntary local governments to effectively Currently, FEMA evaluates the need for agencies are overwhelmed, then FEMA respond. 42 U.S.C. 5170(a). Thus, FEMA a Public Assistance major disaster may not be inclined to recommend a is proposing to maintain the declaration by reviewing the estimated major disaster declaration that requirement that each county and State cost of Federal and non-federal public authorizes IA and would decrease must request a major disaster assistance against the statewide transfer payments. On the other hand, declaration after determining that the population to give a measure of the per FEMA could potentially be more disaster damages and impacts are capita impact within the State. 44 CFR inclined to recommend a major disaster beyond the capabilities of the affected 206.48(a)(1). That factor also establishes declaration that authorizes IA without area’s State or local government. FEMA a $1 million threshold, based on the information on the voluntary agencies’ cannot automatically grant a major proposition that even the smallest resources, which could increase transfer disaster declaration based on proximity population States have the capability to payments. to other declared areas without evidence cover that level of public assistance that the disaster damage and impacts are infrastructure damage. Under FEMA’s b. Maintain the 44 CFR 206.48(b)(6) beyond the affected area’s capabilities. current regulations, there is no Table FEMA did not quantify the impacts of corresponding IA single indicator FEMA evaluated the utility of the this alternative but does acknowledge designed to evaluate the total cost of the current 44 CFR 206.48(b)(6) table listing there could be an increase in transfer disaster against the capability of a the average amount of IA based on State payments if FEMA automatically requesting State. size, and determined it causes confusion declared affected counties and States FEMA chose not to use the Public with stakeholders. This table of averages contiguous to a declared State or Assistance per capita indicator measure does not set a threshold for county. FEMA assumed this alternative and instead choose to utilize the fiscal recommending Individual Assistance, would result in transfer payment capacity factor as indicators of a State’s but was intended as guidance to States increases because specifics about fiscal capability to meet the needs of and voluntary agencies as they develop damage information and resource individuals after an event. FEMA plans and programs to meet the needs capabilities of nearby counties would considers multiple factors and does not of disaster survivors. FEMA determined not be considered and less impacted believe a set limit, even based on that the table should be removed counties would likely be provided estimated damages and population, is because it causes confusion among assistance based on geographic location an appropriate indicator due to the States, and may be used incorrectly as rather than need. varying needs and circumstances of a threshold for whether a State should disaster survivors. FEMA did not request Individual Assistance. d. Considering Negative Impact on quantify the impact of this alternative Furthermore, the table has been Businesses but does assume that it could have an interpreted by States to suggest that FEMA considered including the impact on transfer payments due to State population is the main factor or impact of an incident on businesses in changes to the number of major disaster the only factor in determining State affected areas, including business losses declarations that authorize IA. capability or fiscal capacity. In the based on stakeholder recommendations. f. Use of Factor Thresholds proposed rule, FEMA would continue to FEMA is proposing a revised factor that consider various factors when making considers the impact to businesses Some stakeholders indicated that they its recommendation. FEMA did not because the negative impacts to would prefer specific ‘‘hard’’ thresholds quantify the impacts of this alternative employers and employees may affect a that indicate whether a State would be but assumed there would not be community’s ability to recover. Business eligible to receive a major disaster economic impacts from maintaining the losses alone, however, will not result in declaration authorizing IA. The table because other factors are already a Presidential major disaster declaration stakeholders felt that established considered. FEMA has chosen to that authorizes IA because the IA grant thresholds would give States a clear remove the table for clarification programs do not provide assistance to idea of what level of damage and need purposes. businesses. Instead, FEMA considers the the State must have before requesting effect that business disruptions have on assistance. The stakeholders believed c. Automatically Trigger Contiguous disaster survivors. For example, if that this would prevent States from Counties and States disaster survivors lose work or become spending the time compiling the data Based on stakeholder unemployed due to business impacts and requesting a declaration when they recommendations, FEMA considered from a disaster, this information may have not sustained enough damage to whether to include a provision that highlight an increased need for DUA. In qualify for a major disaster declaration would allow contiguous affected addition, the Small Business that authorizes IA. FEMA rejected a counties and States to be automatically Administration (SBA) has separate threshold indicator because it would be

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inconsistent with the principles of and Treasury data. Considering the low not considered small entities under the Section 320. FEMA also decided to not cost and potentially useful information RFA since they have populations of pursue using thresholds because they this factor could provide, FEMA chose more than 50,000.36 Hence, FEMA would be too restrictive, and would not to maintain fiscal capacity information certifies under 5 U.S.C. 605(b) that this be appropriately flexible to assess the in the proposed rule. proposed rule would not, if various scenarios that demonstrate the promulgated, have a significant i. Do Not Include State Resources State’s need for a declaration economic impact on a substantial Indicators authorizing IA. FEMA assumes this number of small entities. alternative could have an impact on FEMA considered the alternative of C. Unfunded Mandates Reform Act of transfer payments due to changes in the not including State resource indicators. 1995 number of declarations and could If this factor was not included, FEMA reduce State costs if they chose not to and the White House’s ability to assess The Unfunded Mandates Reform Act pursue a declaration request for IA. if States have programs suitable to of 1995, 2 U.S.C. 658, 1501–1504, 1531– respond to and recover from the disaster 1536, 1571, pertains to any notice of g. Homes in Foreclosure and if the States have prepared or proposed rulemaking which implements Some stakeholders stated that if an improved their programs after recent any rule that includes a Federal area with a high foreclosure rate is disasters would not be improved. The mandate that may result in the affected by a disaster, then these homes State cost of the proposed rule would expenditure by State, local, and Tribal without an owner would be a greater decrease, approximately $1,570 governments, in the aggregate, or by the burden to the State during the recovery annually for all State’s major disaster private sector, of $100 million (adjusted process. FEMA’s IA programs do not declaration requests that include IA. annually for inflation) or more in any provide any form of assistance for Considering the low cost, approximately one year. If the rulemaking includes a foreclosed homes, and repair assistance $38 per request, and the potentially Federal mandate, the Act requires an is available only for owner-occupied useful information this factor agency to prepare an assessment of the primary residences. FEMA recognizes information could provide, FEMA chose anticipated costs and benefits of the that high levels of foreclosure may be not to use this alternative. Federal mandate. FEMA has determined associated with economic difficulties in that this proposed rule can be excluded B. Regulatory Flexibility Act the affected area which could negatively from this assessment as the proposed impact a community’s ability to recover. Under the Regulatory Flexibility Act rule meets the criteria set forth in 2 If a State believes that homes in (RFA), 5 U.S.C. 601 et seq., as amended U.S.C. 1503(4), which states, ‘‘This foreclosure will impact their capability by the Small Business Regulatory chapter shall not apply to . . . any to respond to the disaster, then the State Enforcement Fairness Act of 1996 (Pub. provision in a proposed or final Federal may articulate this concern in the L. 104–121, 110 Stat. 857), FEMA must regulation that—. . . (4) provides for narrative portion of their declaration consider the impact of this proposed emergency assistance or relief at the request. FEMA considers all relevant regulation on small entities. The term request of any State, local, or tribal information provided in a State’s ‘‘small entities’’ comprises small government or any official of a State, request. See 44 CFR 206.48. However, businesses, not-for-profit organizations local, or tribal government.’’ Therefore, FEMA believes other factors including that are independently owned and no actions are deemed necessary under poverty level, pre-disaster operated and are not dominant in their the provisions of the Unfunded unemployment, and per capita personal fields, and governmental jurisdictions Mandates Reform Act of 1995. income will be adequate indicators of with populations of less than 50,000. economic health, and has chosen to not When the Administrative Procedure Act D. National Environmental Policy Act include home foreclosure rates in the requires an agency to publish a notice Under the National Environmental proposed evaluation factors. of proposed rulemaking under 5 U.S.C. Policy Act of 1969 (NEPA), as amended, 553, the RFA requires a regulatory 42 U.S.C. 42 U.S.C. 4321 et seq., an h. Do Not Include Fiscal Capacity flexibility analysis for both the proposed agency must prepare an environmental Indicators rule and the final rule if the rulemaking assessment or environmental impact FEMA considered the alternative of could ‘‘have a significant economic statement for any rulemaking that not including fiscal capacity indicators. impact on a substantial number of small significantly affects the quality of the This option would leave discretion on entities.’’ The RFA also provides that if human environment. As explained how to assess State capabilities up to a regulatory flexibility analysis is not below, FEMA has determined that this FEMA and the White House without required for this reason, the agency rulemaking does not significantly affect identifying quantified data utilized or must certify in the rulemaking the quality of the human environment encouraging States to provide more document that the rulemaking will not and consequently has not prepared an information on their fiscal capacity. ‘‘have a significant economic impact on environmental assessment or FEMA chose to include the fiscal a substantial number of small entities’’ environmental impact statement. capacity indicators because they and must include a statement providing NEPA implementing regulations provide objective quantified data for the factual basis for such certification. governing FEMA activities at 44 CFR FEMA and the White House to assess This proposed rule provides States 10.8(d)(2)(ii) categorically exclude the the capabilities of a State. The factor with factors FEMA would consider preparation, revision, and adoption of also provides notice to the State on what when making a recommendation on a regulations from the preparation of an will be used to evaluate it and that the major disaster declaration that EA or EIS, where the rule relates to State can provide additional authorizes IA and codifies many factors actions that qualify for categorical information describing their fiscal that are currently considered but are not capabilities. In this alternative, the adequately captured in 44 CFR 36 The District of Columbia, Puerto Rico, the Federal cost of the proposed rule would 206.48(b). This rule will not directly Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands, decrease by a small amount, impact small businesses, small not-for- which are considered States under 44 CFR approximately $40 a year, based on profit organizations, and small 206.2(a)(22), all have populations greater than FEMA no longer having to retrieve BEA governmental jurisdictions. States are 50,000.

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exclusions. Most activities under collection of information displays a regional analysis and recommendation Section 408 and prior Section 411 of the valid control number. will include a discussion of State and Stafford Act pertaining to temporary In this proposed rule, FEMA is local resources and capabilities, and housing and financial assistance are seeking a revision to the already existing other assistance available to meet the categorically excluded from NEPA collection of information, OMB Control disaster related needs. The review under 44 CFR 10.8(d)(2)(xix)(D) Number 1660–0009, because FEMA has Administrator of FEMA provides a and (F). Before undertaking other refined our estimates related to 1660– recommendation to the President and activities that are not categorically 0009. This proposed rule serves as the also provides a copy of the Governor’s excluded (e.g., placement of 60-day comment period for this request. In the event the information manufactured temporary housing units proposed change pursuant to 5 CFR required by law is not contained in the on FEMA-constructed group sites; 1320.12. FEMA invites the general request, the Governor’s request cannot permanent or semi-permanent housing public to comment on the proposed be processed and forwarded to the construction), FEMA follows the collection of information. White House. In the event the procedures set forth in 44 CFR part 10 Collection of Information Governor’s request for a major disaster to assure NEPA compliance. declaration or an emergency declaration Title: The Declaration Process: is not granted, the Governor may appeal In addition, this proposed rule revises Requests for Preliminary Damage the decision. the criteria that FEMA considers when Assessment (PDA), Requests for Affected Public: State, local, or Tribal recommending an area eligible for IA Supplemental Federal Disaster Government. under a major disaster declaration. A Assistance, Appeals, and Requests for Estimated Number of Respondents: Cost Share Adjustments. major disaster declaration 622. Type of information collection: recommendation to the President is falls Estimated Number of Responses: 355. into information and data gathering and Revision of a currently approved collection. Estimated Total Annual Burden reporting efforts in support of Hours: 11,737. emergency and disaster response and OMB Number: 1660–0009. Form Titles and Numbers: FEMA The previously approved Total recovery and hazard mitigation. Annual Burden Hours was 11,715 Therefore, the activity this rule applies Form 010–0–13, Request for Presidential Disaster Declaration Major Disaster or hours. Based on the proposed rule’s to meets FEMA’s Categorical Exclusion minor increase in burden, the new in 44 CFR 10.8(d)(2)(xviii)(E). Because Emergency. Abstract: When a disaster occurs in a estimated Total Annual Burden Hours is no other extraordinary circumstances State, the Governor of the State or the 11,737 hours. This increase of 22 hours have been identified, this rule does not Acting Governor in his/her absence, is attributed to the additional require the preparation of either an EA may request a major disaster declaration information FEMA requests in order to or an EIS as defined by NEPA. or an emergency declaration. The evaluate the need for a major disaster E. Paperwork Reduction Act of 1995 Governor should submit the request to declaration that authorizes IA, the President through the appropriate specifically requesting a narrative As required by the Paperwork Regional Administrator to ensure discussion on improvements to State Reduction Act of 1995 (PRA), Public prompt acknowledgement and services provided to individuals in Law 104–13, 109 Stat. 163, (May 22, processing. The information obtained by response to a disaster. 1995) (44 U.S.C. 3501 et seq.), an agency joint Federal, State, and local Table A.12 provides estimates of may not conduct or sponsor, and a preliminary damage assessments will be annualized cost to respondents for the person is not required to respond to, a analyzed by FEMA regional senior level hour burdens for the collection of collection of information unless the staff. The regional summary and the information. TABLE A.12—ESTIMATED ANNUALIZED BURDEN HOURS AND COSTS 37

Number of Average Total annual Average Total annual Type of respondent Form name/form No. Number of responses per burden per burden hourly wage respondent respondents 38 response 39 respondent (in hours) (in hours) rate cost

State, Local or Tribal Govern- Request for Presidential Dis- 622 .5707 9.062 3,217 $76.52 $246,164.84 ment. aster Declaration Major Disaster or Emergency/ FEMA Form 010–0–13. State, Local or Tribal Govern- Initial Data Gathering for 622 .57 24 8,520 33.10 282,012.00 ment. Governor’s Request/No Form.

Total ...... 622 ...... 11,737 ...... 528,176.84

Estimated Cost: $3,480,709.36. rule in the previous Regulatory Analysis capital costs. The cost to the Federal The estimated annual cost to Section. There are no annual costs to government is unchanged at respondents for the hour burden is respondents operations and $3,038,639.60. $528,176.84. FEMA describes cost maintenance costs for technical increases specifically for the proposed services. There is no annual start-up or

37 Note: Numbers rounded due to rounding in reanalyzed this number to more accurately reflect 39 Note: The ‘‘Avg. Hourly Wage Rate’’ for each ROCIS. the change in the proposed rule. FEMA calculated respondent includes a 1.4 multiplier to reflect a 38 Note: The number of responses per respondent 0.5707 based on the previous supporting fully-loaded wage rate. for entering in Request for Presidential Disaster statement’s total number of response hours, 3,195 Declaration Major Disaster or Emergency/FEMA divided by the number of hours, 9, resulting in 355, Form 010–0–13 has been updated to 0.5707. FEMA and then divided by 622.

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Comments rulemaking does not impact FEMA’s FEMA sought input from State, local Comments may be submitted as collection of PII in the disaster and Tribal stakeholders at the Spring indicated in the ADDRESSES caption declarations process and form and no 2013 NEMA conference. In addition, in above. Comments are solicited to (a) Privacy Impact Assessment or System of conjunction with the effort to initiate evaluate whether the proposed data Records Notice is required at this time. development of Section 1110 of SRIA, FEMA sought input from Tribal and collection is necessary for the proper G. Executive Order 13175, Consultation other stakeholders via a Federal performance of the agency, including and Coordination With Indian Tribal Register notice requesting comments on, whether the information shall have Governments practical utility; (b) evaluate the among other things, the IA criteria that Executive Order 13175, ‘‘Consultation FEMA uses to make recommendations accuracy of the agency’s estimate of the and Coordination with Indian Tribal to the President for major disaster burden of the proposed collection of Governments,’’ 65 FR 67249, November declarations in 44 CFR 206.48(b). 78 FR information, including the validity of 9, 2000, applies to agency regulations 15026, 15028–15029 (March 8, 2013). In the methodology and assumptions used; that have Tribal implications, that is, addition, throughout March and April (c) enhance the quality, utility, and regulations that have substantial direct 2013, FEMA held listening sessions 40 clarity of the information to be effects on one or more Indian tribes, on with tribal leadership, their collected; and (d) minimize the burden the relationship between the Federal organizations and stakeholders to of the collection of information on those Government and Indian Tribes, or on present information regarding FEMA who are to respond, including through the distribution of power and programs, the Stafford Act and its the use of appropriate automated, responsibilities between the Federal amendment, and the declarations electronic, mechanical, or other Government and Indian Tribes. Under process. technological collection techniques or this Executive Order, to the extent FEMA received input that many other forms of information technology, practicable and permitted by law, no members of Tribes do not have e.g., permitting electronic submission of agency shall promulgate any regulation insurance and are not homeowners. responses. that has Tribal implications, that Data regarding whether a home has F. Privacy Act imposes substantial direct compliance insurance and is rented or owned is costs on Indian Tribal governments, and typically gathered during the PDA Under the Privacy Act of 1974, 5 that is not required by statute, unless process. In addition, Tribes were U.S.C. 552a, an agency must determine funds necessary to pay the direct costs concerned with the use of whether implementation of a proposed incurred by the Indian Tribal unemployment data at a county level regulation will result in a system of government or the Tribe in complying because the Tribal unemployment level records. A ‘‘record’’ is any item, with the regulation are provided by the could be much higher. FEMA will collection, or grouping of information Federal Government, or the agency always consider relevant information about an individual that is maintained consults with Tribal officials. when evaluating the requests for a major by an agency, including, but not limited FEMA has reviewed this proposed disaster declaration that authorizes IA. to, his/her education, financial rule under Executive Order 13132 and If the county level unemployment level transactions, medical history, and has determined that this rule does not is inaccurate because Tribal criminal or employment history and have a substantial direct effect on one or unemployment is higher, then FEMA that contains his/her name, or the more Indian tribes, on the relationship encourages Tribes to provide data that is identifying number, symbol, or other between the Federal Government and more accurate to the State or FEMA in identifying particular assigned to the Indian Tribes, or on the distribution of their disaster request. FEMA considered individual, such as a finger or voice power and responsibilities between the this input in the development of this print or a photograph. See 5 U.S.C. Federal Government and Indian Tribes. rule, and welcomes additional 552a(a)(4). A ‘‘system of records’’ is a The disaster assistance granted by a comments on this matter. group of records under the control of an major disaster declaration addressed by agency from which information is this proposed rule is provided to H. Executive Order 13132, Federalism retrieved by the name of the individual individuals and families, and would not Executive Order 13132, ‘‘Federalism,’’ or by some identifying number, symbol, have tribal implications. 64 FR 43255, August 10, 1999, sets forth or other identifying particular assigned Moreover, this rule proposes to revise principles and criteria that agencies to the individual. An agency cannot regulations intended to address a State's must adhere to in formulating and disclose any record which is contained request for an IA declaration. Although implementing policies that have in a system of records except by Section 1110 of SRIA authorizes Indian federalism implications, that is, following specific procedures. Tribal governments to request a regulations that have ‘‘substantial direct FEMA completed a Privacy Threshold declaration directly, SRIA charged effects on the States, on the relationship Analysis for this proposed rule. Any FEMA to implement that authority between the national government and information will be collected in existing separately by rulemaking. Although the States, or on the distribution of FEMA Form 010–0–13 and will still FEMA is currently evaluating tribal power and responsibilities among the only include the Governor’s point of declaration requests using its existing various levels of government.’’ Federal contact and general office phone regulations, FEMA is implementing agencies must closely examine the number as well as other State specific Section 1110 through a separate process, statutory authority supporting any and disaster specific information of a which will involve extensive action that would limit the non-personally-identifiable nature. The consultation with Tribes, issuance of policymaking discretion of the States, information received through the form forthcoming pilot guidance, and and to the extent practicable, must is neither retrieved nor retrievable by eventually, regulations. personally identifiable information (PII). FEMA notes that Section 1109 of 40 Please refer to the following Web site for Any retrieval would be done by SRIA requires FEMA to develop this further information on FEMA’s listening sessions as well FEMA’s consultation efforts: https:// utilizing State specific or disaster rulemaking ‘‘in cooperation with State, www.fema.gov/fema-tribal-affairs/consultation- specific information of a local, and Tribal emergency archive-procedures-request-emergency-or-major- non-identifiable nature. This management agencies.’’ To that end, disaster-declarations.

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consult with State and local officials containing an explanation of why the quality of the wetlands. Among these before implementing any such action. action is proposed to be located in the factors are: Public health, safety, and FEMA has reviewed this proposed floodplain. welfare, including water supply, rule under Executive Order 13132 and The requirements of Executive Order quality, recharge and discharge; has determined that this rule does not 11988 apply in the context of the pollution; flood and storm hazards; and have a substantial direct effects on the provision of Federal financial assistance sediment and erosion; maintenance of States, on the relationship between the relating to, among other things, natural systems, including conservation national government and the States, or construction and property improvement and long term productivity of existing on the distribution of power and activities, as well as conducting Federal flora and fauna, species and habitat responsibilities among the various programs affecting a floodplain(s). The diversity and stability, hydrologic levels of government, and therefore does changes proposed in this rule would not utility, fish, wildlife, timber, and food not have federalism implications as have an effect on floodplain and fiber resources; and other uses of defined by the Executive Order. The management. This proposed rule revises wetlands in the public interest, disaster assistance granted by a major the criteria that FEMA considers when including recreational, scientific, and disaster declaration addressed by this recommending an area eligible for IA cultural uses. proposed rule is provided to individuals under a major disaster declaration. A The requirements of Executive Order and families, and would not have major disaster declaration 11990 apply in the context of the federalism implications. recommendation to the President is an provision of Federal financial assistance administrative action for FEMA’s IA relating to, among other things, I. Executive Orders 11988, Floodplain Program. When FEMA undertakes construction and property improvement Management specific actions in administering IA that activities, as well as conducting Federal Executive Order 11988, ‘‘Floodplain may have effects on floodplain programs affecting land use. The Management,’’ 42 FR 26951, May 24, management (e.g., placement of changes proposed in this rule would not 1977, sets forth that each agency is manufactured housing units on FEMA- have an effect on land use or wetlands. required to provide leadership and take constructed group sites; permanent or This proposed rule revises the criteria action to reduce the risk of flood loss, semi-permanent housing construction), that FEMA considers when to minimize the impact of floods on FEMA follows the procedures set forth recommending an area eligible for IA human safety, health and welfare, and in 44 CFR part 9 to assure compliance under a major disaster declaration. A to restore and preserve the natural and with this Executive Order. This serves major disaster declaration beneficial values served by floodplains as the notice that is required by the EO. recommendation to the President is an in carrying out its responsibilities for (1) administrative action for FEMA’s IA J. Executive Order 11990, Protection of acquiring, managing, and disposing of Program. When FEMA undertakes Wetlands Federal lands and facilities; (2) specific actions in administering IA that providing Federally undertaken, Executive Order 11990, ‘‘Protection of may have such effects (e.g., placement financed, or assisted construction and Wetlands,’’ 42 FR 26961, May 24, 1977, of manufactured housing units on improvements; and (3) conducting sets forth that each agency must provide FEMA-constructed group sites; Federal activities and programs affecting leadership and take action to minimize permanent or semi-permanent housing land use, including but not limited to the destruction, loss or degradation of construction), FEMA follows the water and related land resources wetlands, and to preserve and enhance procedures set forth in 44 CFR part 9 to planning, regulating, and licensing the natural and beneficial values of assure compliance with this Executive activities. In carrying out these wetlands in carrying out the agency’s Order. responsibilities, each agency must responsibilities for (1) acquiring, evaluate the potential effects of any managing, and disposing of Federal K. Executive Order 12898, actions it may take in a floodplain; lands and facilities; and (2) providing Environmental Justice ensure that its planning programs and Federally undertaken, financed, or Under Executive Order 12898, budget requests reflect consideration of assisted construction and ‘‘Federal Actions to Address flood hazards and floodplain improvements; and (3) conducting Environmental Justice in Minority management; and prescribe procedures Federal activities and programs affecting Populations and Low-Income to implement the policies and land use, including but not limited to Populations,’’ 59 FR 7629, February 16, requirements of the Executive Order. water and related land resources 1994, as amended by Executive Order Before promulgating any regulation, planning, regulating, and licensing 12948, 60 FR 6381, February 1, 1995, an agency must determine whether the activities. Each agency, to the extent FEMA incorporates environmental proposed regulations will affect a permitted by law, must avoid justice into its policies and programs. floodplain(s), and if so, the agency must undertaking or providing assistance for The Executive Order requires each consider alternatives to avoid adverse new construction located in wetlands Federal agency to conduct its programs, effects and incompatible development unless the head of the agency finds (1) policies, and activities that substantially in the floodplain(s). If the head of the that there is no practicable alternative to affect human health or the environment agency finds that the only practicable such construction, and (2) that the in a manner that ensures that those alternative consistent with the law and proposed action includes all practicable programs, policies, and activities do not with the policy set forth in Executive measures to minimize harm to wetlands have the effect of excluding persons Order 11988 is to promulgate a which may result from such use. In from participation in programs, denying regulation that affects a floodplain(s), making this finding the head of the persons the benefits of programs, or the agency must, prior to promulgating agency may take into account economic, subjecting persons to discrimination the regulation, design or modify the environmental and other pertinent because of race, color, or national origin. regulation in order to minimize factors. FEMA has incorporated environmental potential harm to or within the In carrying out the activities described justice into its programs, policies, and floodplain, consistent with the agency’s in Executive Order 11990, each agency activities, as well as this proposed floodplain management regulations and must consider factors relevant to a rulemaking. This proposed rulemaking prepare and circulate a notice proposal’s effect on the survival and contains provisions that ensure that

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FEMA’s activities will not have a For the reasons stated in the supplemental Federal assistance than a disproportionately high or adverse effect preamble, the Federal Emergency high TTR. on human health or the environment or Management Agency proposes to amend (B) Gross Domestic Product (GDP) by subject persons to discrimination 44 CFR part 206, subpart B, as follows: State. GDP by State is calculated by the because of race, color, or national origin. Bureau of Economic Analysis. GDP by This proposed rule adds a provision PART 206—FEDERAL DISASTER State may be used as an alternative or specifically related to the demographics ASSISTANCE supplemental evaluation method to of a disaster impacted population. TTR. ■ FEMA is requesting the demographics of 1. The authority citation for part 206 (C) Per capita personal income by a disaster impacted area because the continues to read as follows: local area. Per capita personal income demographics may identify additional Authority: Robert T. Stafford Disaster by local area is calculated by the Bureau needs that require a more robust Relief and Emergency Assistance Act, 42 of Economic Analysis. A low per capita community response and might U.S.C. 5121 through 5207; Homeland personal income by local area may otherwise delay a community’s ability Security Act of 2002, 6 U.S.C. 101 et seq.; indicate a greater need for supplemental Department of Homeland Security Delegation to recover from a disaster. Federal assistance than a high per capita No action that FEMA can anticipate 9001.1; sec. 1105, Pub. L. 113–2, 127 Stat. 43 (42 U.S.C. 5189a note). personal income by local area. under this rule will have a (D) Other factors. Other limits on a ■ 2. Revise § 206.48(b) to read as disproportionately high and adverse State’s treasury or ability to collect follows: human health or environmental effect funds may be considered. on any segment of the population. § 206.48 Factors considered when (ii) Resource availability. Federal L. Congressional Review of Agency evaluating a Governor’s request for a major disaster assistance under the Stafford Rulemaking disaster declaration. Act is intended to be supplemental in Under the Congressional Review of * * * * * nature, and is not a replacement for Agency Rulemaking Act (CRA), 5 U.S.C. (b) Factors for the Individual State emergency relief programs, 801–808, before a rule can take effect, Assistance Program. The following services, and funds. FEMA evaluates the the Federal agency promulgating the factors are used to evaluate the need for availability of resources from State, rule must submit to Congress and to the supplemental Federal assistance to Tribal, and local governments as well as Government Accountability Office individuals under the Stafford Act, as non-governmental organizations and the (GAO) a copy of the rule, a concise Federal assistance may not supplant the private sector. general statement relating to the rule, combined capabilities of a State, Tribal, (A) State, Tribal, and local including whether it is a major rule, the or local government. Federal Individual government; Non-Governmental proposed effective date of the rule, a Assistance, if authorized, is intended to Organizations (NGO); and private sector copy of any cost-benefit analysis, assist eligible individuals and families activity. State, Tribal, and local descriptions of the agency’s actions when State, Tribal, and local government, Non-Governmental under the Regulatory Flexibility Act and government resources and assistance Organizations, and private sector the Unfunded Mandates Reform Act, programs are overwhelmed. State fiscal resources may offset the need for or and any other information or statements capacity (44 CFR 206.48(b)(1)(i)) and reveal an increased need for required by relevant executive orders. uninsured home and personal property supplemental Federal assistance. The FEMA will send this rule to the losses (44 CFR 206.48(b)(2)) are the State may provide information regarding Congress and to GAO pursuant to the principal factors that FEMA will the resources that have been and will be CRA if the rule is finalized. The rule is consider when evaluating the need for committed to meet the needs of disaster not a ‘‘major rule’’ within the meaning supplemental Federal assistance under survivors such as housing programs, of the CRA. It will not have an annual the Individuals and Households resources provided through financial effect on the economy of $100,000,000 Program. If the need for supplemental and in-kind donations, and the or more, it will not result in a major Federal assistance under the Individuals availability of affordable (as determined increase in costs or prices for and Households Program is not clear by the U.S. Department of Urban and consumers, individual industries, from the evaluation of the principal Housing Development’s fair market rent Federal, State, or local government factors, FEMA will turn to the other standards) rental housing within a agencies, or geographic regions, and it factors to determine the level of need. reasonable commuting distance of the will not have significant adverse effects (1) State fiscal capacity and resource impacted area. on competition, employment, availability. FEMA will evaluate the (B) Cumulative effect of recent investment, productivity, innovation, or availability of State resources, and disasters. The cumulative effect of on the ability of United States-based where appropriate, any extraordinary recent disasters may affect the enterprises to compete with foreign- circumstances that contributed to the availability of State, Tribal, local based enterprises in domestic and absence of sufficient resources. government, NGO, and private sector export markets. (i) Fiscal capacity (Principal Factor disaster recovery resources. The State for Individuals and Households should provide information regarding List of Subjects in 44 CFR Part 206GG Program). Fiscal capacity is a State’s the disaster history within the last 24- Administrative practice and potential ability to raise revenue from month period, particularly those procedure, Coastal zone, Community its own sources to respond to and occurring within the current fiscal facilities, Disaster assistance, Fire recover from a disaster. The following cycle, including both Presidential prevention, Grant programs—housing data points are indicators of fiscal (public and individual assistance) and and community development, Housing, capacity. gubernatorial disaster declarations. Insurance, Intergovernmental relations, (A) Total Taxable Resources (TTR) of (C) State services. The State may Loan programs—housing and the State. TTR is the U.S. Department of provide information regarding the community development, Natural Treasury’s annual estimate of the circumstances causing the State to lack resources, Penalties, and Reporting and relative fiscal capacity of a State. A low the resources to provide sufficient recordkeeping requirements. TTR may indicate a greater need for services to its citizens.

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(D) Planning after prior disasters. and Supplemental Nutrition Assistance period greater than 72 hours. Such States are encouraged to develop and Program benefits. services include but are not limited to continuously improve their own (iii) The pre-disaster unemployment schools, social services programs and disaster assistance programs. States rate. providers, child care, and eldercare. (iv) The percentage of the population should identify new and existing (iii) Transportation infrastructure and that is 65 years old and older. individual assistance programs as well utilities. Transportation infrastructure or as improvements to existing individuals (v) The percentage of the population 18 years old and younger. utility disruptions may render housing assistance programs made as a result of uninhabitable or inaccessible. Such previous disasters. A State’s failure to (vi) The percentage of the population with a disability. conditions may also affect the delivery address limitations and shortfalls of life sustaining commodities, identified by FEMA or the State after (vii) The percentage of the population who speak a language other than provision of emergency services, ability previous events will also be considered. to shelter in place, and efforts to (2) Uninsured home and personal English and speak English less than rebuild. The State may provide property losses (Principal Factor for ‘‘very well.’’ (viii) Any unique considerations information regarding the impact on Individuals and Households Program). regarding American Indian and Alaskan transportation infrastructure and Uninsured home and personal property Native Tribal populations raised in the utilities for a period of greater than 72 losses may suggest a need for State’s request for a major disaster hours. supplemental Federal assistance. The declaration that may not be reflected in State may provide the following (5) Casualties. The number of the data points referenced in paragraphs preliminary damage assessment data: individuals who are missing, injured, or (b)(3)(i)–(vii) of this section. (i) The cause of damage. deceased due to a disaster may indicate (4) Impact to community (ii) The jurisdictions impacted and a heightened need for supplemental infrastructure. The following impacts to concentration of damage. Federal disaster assistance. The State (iii) The number of homes impacted a community’s infrastructure may adversely affect a population’s ability to may report the number of missing, and degree of damage. injured, or deceased individuals. (iv) The estimated cost of assistance. safely and securely reside within the (v) The homeownership rate of community. (6) Disaster related unemployment. impacted homes. (i) Lifesaving and life-sustaining The number of disaster survivors who (vi) The percentage of affected services. The effects of a disaster may lost work or became unemployed due to households with sufficient insurance cause disruptions to or increase the a disaster and who do not qualify for coverage appropriate to the peril. demand for lifesaving and life- standard unemployment insurance may (vii) Other relevant preliminary sustaining services, necessitate a more indicate a heightened need for damage assessment data. robust response, and may delay a supplemental Federal assistance. This (3) Disaster impacted population community’s ability to recover from a usually includes the self-employed, profile. The demographics of a disaster disaster. The State may provide service industry workers, and seasonal impacted population may identify information regarding the impact on life workers such as those employed in additional needs that require a more saving and life sustaining services for a tourism, fishing, or agriculture robust community response and delay a period of greater than 72 hours. Such industries. The State may provide an community’s ability to recover from a services include but are not limited to estimate of the number of disaster disaster. FEMA will consider police, fire/EMS, hospital/medical, survivors impacted under this demographics of the impacted sewage, and water treatment services. paragraph as well as information communities for the following data (ii) Essential community services. The regarding major employers affected. effects of a disaster may cause points as reported by the U.S. Census Dated: October 29, 2015. Bureau or other Federal agencies: disruptions to or increase the demand (i) The percentage of the population for essential community services and W. Craig Fugate, for whom poverty status is determined. delay a community’s ability to recover Administrator, Federal Emergency (ii) The percentage of the population from a disaster. The State may provide Management Agency. already receiving government assistance information regarding the impact on [FR Doc. 2015–28570 Filed 11–10–15; 8:45 am] such as Supplemental Security Income essential community services for a BILLING CODE 9111–23–P

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Part IV

The President

Proclamation 9365—World Freedom Day, 2015

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Federal Register Presidential Documents Vol. 80, No. 218

Thursday, November 12, 2015

Title 3— Proclamation 9365 of November 6, 2015

The President World Freedom Day, 2015

By the President of the United States of America

A Proclamation Twenty-six years ago, after nearly three decades of separating family and friends, the Berlin Wall crumbled under the force of popular will—reuniting Germans from East and West and providing hope to all who believed in the power of a people yearning to be free. The fall of the Iron Curtain liberated a continent from the grip of corrupt dictatorships, and its demise marked a victory for democratic rule over forces that had for too long sealed out the fresh air of freedom. On this day, we honor those who braved extreme hardship in pursuit of progress and reunification, and we reaffirm our support for the citizens of the world who still face obstacles to a better, brighter, and more just future. In standing with all those behind the Curtain who felt the urgency of the time and who sought a democracy of their own, the United States recognized our own past: A common struggle for individual rights, security, and human dignity. During a stirring defense of these ideals, it was an American President who famously pledged solidarity with Berliners, and another who issued a bold call to tear down what stood between Germany and the blessings of liberty. As we celebrate our friendship with the German people today, we reflect on our history and look to the future with a shared notion of optimism and opportunity. Through their victory, the people of Berlin inspired the world. Their resolve reminds us that though the scourge of oppression endures, it can never outlast the spirit of a people determined to live free. On this day, let us carry forward the call that echoes through the ages—‘‘Ich bin ein Ber- liner’’—by supporting those who still struggle against tyranny and intoler- ance, and who continue to seek the everlasting light of liberty. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim November 9, 2015, as World Freedom Day. I call upon the people of the United States to observe this day with appropriate ceremonies and activities, reaffirming our dedication to freedom and democracy.

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IN WITNESS WHEREOF, I have hereunto set my hand this sixth day of November, in the year of our Lord two thousand fifteen, and of the Independ- ence of the United States of America the two hundred and fortieth.

[FR Doc. 2015–28912 Filed 11–10–15; 11:15 am] Billing code 3295–F6–P

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Reader Aids Federal Register Vol. 80, No. 218 Thursday, November 12, 2015

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 39 ...... 68429, 68432, 68434, Presidential Documents 2 CFR 68437, 69111, 69113, 69569, 200...... 69111 Executive orders and proclamations 741–6000 69571, 69573, 69838, 69839, The United States Government Manual 741–6000 2300...... 69563 3474...... 67261 69846 71...... 68440, 68442 Other Services Proposed Rules: 97 ...... 68758, 68759, 68761, 741–6020 3474...... 67672 Electronic and on-line services (voice) 68763, 69578 Privacy Act Compilation 741–6064 3 CFR Proposed Rules: Public Laws Update Service (numbers, dates, etc.) 741–6043 Proclamations: 23...... 68281 9354...... 67615 39 ...... 67348, 68284, 68475, ELECTRONIC RESEARCH 9355...... 67617 68477, 69623, 69625, 69896, 9356...... 67619 69898, 69899, 69903 World Wide Web 9357...... 68237 15 CFR 9358...... 68239 Full text of the daily Federal Register, CFR and other publications 9359...... 68241 4...... 68442 is located at: www.fdsys.gov. 9360...... 68413 301...... 68765 Federal Register information and research tools, including Public 9361...... 68415 303...... 68765 Inspection List, indexes, and Code of Federal Regulations are 9362...... 68417 730...... 69588 located at: www.ofr.gov. 9363...... 68419 734...... 69588 9364...... 69835 744...... 69852 E-mail 9365...... 70147 16 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Administrative Orders: an open e-mail service that provides subscribers with a digital Memorandums: 305...... 67285 form of the Federal Register Table of Contents. The digital form Memorandum of Proposed Rules: of the Federal Register Table of Contents includes HTML and November 3, 2015 ...... 68743 305...... 67351 PDF links to the full text of each document. Notices: 1112...... 69144 Notice of November 5, To join or leave, go to http://listserv.access.gpo.gov and select 1231...... 69144 2015 ...... 69561 Online mailing list archives, FEDREGTOC-L, Join or leave the list 17 CFR (or change settings); then follow the instructions. 5 CFR Proposed Rules: PENS (Public Law Electronic Notification Service) is an e-mail Proposed Rules: 230...... 69786 service that notifies subscribers of recently enacted laws. 870...... 69623 300...... 68286 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 7 CFR and select Join or leave the list (or change settings); then follow 18 CFR the instructions. 925...... 68421 157...... 67302 930...... 68424 FEDREGTOC-L and PENS are mailing lists only. We cannot 260...... 67302 944...... 68421 284...... 67302 respond to specific inquiries. Proposed Rules: Reference questions. Send questions and comments about the 920...... 68473 20 CFR Federal Register system to: [email protected] 10 CFR 435...... 69563 The Federal Register staff cannot interpret specific documents or 437...... 69563 73...... 67264 regulations. 431...... 69837 21 CFR CFR Checklist. Effective January 1, 2009, the CFR Checklist no 433...... 68749 866...... 67313 longer appears in the Federal Register. This information can be 851...... 69564 1308...... 69861 found online at http://bookstore.gpo.gov/. Proposed Rules: 170...... 68268 Proposed Rules: 101...... 69905 FEDERAL REGISTER PAGES AND DATE, NOVEMBER 171...... 68268 429 ...... 68274, 69278, 69888 22 CFR 67261–67620...... 2 430...... 68274, 69278 67621–68242...... 3 431...... 69888 41...... 67315, 69588 68243–68420...... 4 12 CFR 24 CFR 68421–68742...... 5 91...... 69864 68743–69110...... 6 Ch. VI...... 67277 600...... 68427 570 ...... 67626, 67634, 69864 69111–69562...... 9 606...... 68427 25 CFR 69563–69836...... 10 611...... 67277 69837–70148...... 12 1003...... 69567 256...... 69589 Proposed Rules: Proposed Rules: 327...... 68780 30...... 69161 14 CFR 26 CFR 25 ...... 67621, 67623, 69567 1...... 68243, 68244

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602...... 68244 385...... 67261 40 CFR 45 CFR Proposed Rules: 396...... 67261 52 ...... 67319, 67335, 67642, Proposed Rules: 1...... 68288, 68794 400...... 67261 67645, 67647, 67652, 68253, 95...... 68290 426...... 67261 68448, 68451, 68453, 68458, 1355...... 68290 29 CFR 460...... 67261 68766, 68768, 69602, 69604, 1356...... 68290 1982...... 69115 491...... 67261 69874, 69876, 69880 Proposed Rules: 535...... 67261 81...... 67652, 68253 29...... 68908 606...... 67261 97...... 69883 46 CFR 30...... 68908 607...... 67261 170...... 67496 515...... 68722 608...... 67261 180 ...... 68257, 68261, 68772 Proposed Rules: 32 CFR 609...... 67261 423...... 67838 401...... 69179 273...... 68158 611...... 67261 Proposed Rules: 403...... 69179 776...... 68388 614...... 67261 52 ...... 67681, 67682, 68481, 404...... 69179 628...... 67261 Proposed Rules: 68484, 68486, 68807, 69172, 636...... 67261 208...... 69166 69627, 69915, 69925 637...... 67261 60...... 68808 47 CFR 33 CFR 642...... 67261 81...... 69173 1...... 67337 643...... 67261 100...... 67635, 69873 82...... 69458 2...... 68471 117 ...... 67316, 68444, 69602 644...... 67261 147...... 69629 73...... 67337, 67344 165 ...... 67317, 67638, 68445 645...... 67261 180...... 68289, 69080 646...... 67261 Proposed Rules: Proposed Rules: 260...... 68490 647...... 67261 1 ...... 67689, 68815, 69630 117...... 67677 261...... 68490, 68491 648...... 67261 4...... 67689 262...... 68490, 68491 34 CFR 650...... 67261 25...... 68815 263...... 68490 74...... 67261 654...... 67261 27...... 69630 264...... 68490 75...... 67261 655...... 67261 73...... 68815 265...... 68490 76...... 67261 661...... 67261 74...... 68815 266...... 68491 77...... 67261 662...... 67261 Ch. I ...... 69630 268...... 68490, 68491 80...... 67261 663...... 67261 270...... 68490 101...... 67261 664...... 67261 273...... 68490, 68491 48 CFR 206...... 67261 682...... 67261 279...... 68490 1817...... 68778 222...... 67261 692...... 67261 1852...... 68778 225...... 67261 694...... 67261 42 CFR 226...... 67261 1100...... 67261 Proposed Rules: 270...... 67261 409...... 68624 722...... 69930 280...... 67261 36 CFR 413...... 68968 729...... 69930 299...... 67261 242...... 68245, 68249 424...... 68624 731...... 69930 300...... 67261 447...... 67576 752...... 69930 303...... 67261 37 CFR 484...... 68624 Proposed Rules: 350...... 67261 Proposed Rules: 50 CFR 361...... 67261 42...... 67680 447...... 67377 363...... 67261 482...... 68126 100...... 68245, 68249 364...... 67261 38 CFR 484...... 68126 300...... 69884 365...... 67261 17...... 68447 485...... 68126 635...... 68265 367...... 67261 Proposed Rules: 648...... 67664 43 CFR 369...... 67261 17...... 68479, 69909 660 ...... 67664, 69138, 69885 370...... 67261 74...... 68795 10...... 68465 665...... 68778 373...... 67261 679...... 67346, 68267 377...... 67261 39 CFR 44 CFR 697...... 69619 380...... 67261 Proposed Rules: Proposed Rules: Proposed Rules: 381...... 67261 3050...... 68480 206...... 70116 648...... 69179

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located at 16105 Swingley H.R. 774/P.L. 114–81 waiver authority regarding Ridge Road in Chesterfield, Illegal, Unreported, and programs of all-inclusive care LIST OF PUBLIC LAWS Missouri, as the ‘‘Sgt. Zachary Unregulated Fishing for the elderly (PACE M. Fisher Post Office’’. (Nov. Enforcement Act of 2015 programs). (Nov. 5, 2015; 129 This is a continuing list of 5, 2015; 129 Stat. 642) (Nov. 5, 2015; 129 Stat. 649) Stat. 674) public bills from the current session of Congress which H.R. 323/P.L. 114–77 H.R. 1442/P.L. 114–82 S. 2162/P.L. 114–86 have become Federal laws. To designate the facility of the To designate the facility of the This list is also available United States Postal Service United States Postal Service Librarian of Congress online at http:// located at 55 Grasso Plaza in located at 90 Cornell Street in Succession Modernization Act www.archives.gov/federal- St. Louis, Missouri, as the Kingston, New York, as the of 2015 (Nov. 5, 2015; 129 register/laws. ‘‘Sgt. Amanda N. Pinson Post ‘‘Staff Sergeant Robert H. Stat. 675) Office’’. (Nov. 5, 2015; 129 Dietz Post Office Building’’. Last List November 4, 2015 The text of laws is not Stat. 643) (Nov. 5, 2015; 129 Stat. 671) published in the Federal H.R. 1884/P.L. 114–83 Register but may be ordered H.R. 324/P.L. 114–78 To designate the facility of the in ‘‘slip law’’ (individual To designate the facility of the United States Postal Service pamphlet) form from the United States Postal Service Public Laws Electronic located at 206 West Superintendent of Documents, located at 11662 Gravois Notification Service Commercial Street in East U.S. Government Publishing Road in St. Louis, Missouri, (PENS) Rochester, New York, as the Office, Washington, DC 20402 as the ‘‘Lt. Daniel P. Riordan ‘‘Officer Daryl R. Pierson (phone, 202–512–1808). The Post Office’’. (Nov. 5, 2015; Memorial Post Office text will also be made 129 Stat. 644) Building’’. (Nov. 5, 2015; 129 PENS is a free electronic mail available on the Internet from H.R. 558/P.L. 114–79 Stat. 672) notification service of newly GPO’s Federal Digital System To designate the facility of the enacted public laws. To (FDsys) at http://www.gpo.gov/ H.R. 3059/P.L. 114–84 United States Postal Service subscribe, go to http:// fdsys. Some laws may not yet To designate the facility of the located at 55 South Pioneer listserv.gsa.gov/archives/ be available. United States Postal Service publaws-l.html Boulevard in Springboro, Ohio, located at 4500 SE 28th as the ‘‘Richard ‘Dick’ H.R. 313/P.L. 114–75 Street, Del City, Oklahoma, as Note: This service is strictly Chenault Post Office Building’’. Wounded Warriors Federal the James Robert Kalsu Post for E-mail notification of new (Nov. 5, 2015; 129 Stat. 645) Leave Act of 2015 (Nov. 5, Office Building. (Nov. 5, 2015; laws. The text of laws is not 2015; 129 Stat. 640) H.R. 623/P.L. 114–80 129 Stat. 673) available through this service. H.R. 322/P.L. 114–76 DHS Social Media S. 1362/P.L. 114–85 PENS cannot respond to To designate the facility of the Improvement Act of 2015 To amend title XI of the specific inquiries sent to this United States Postal Service (Nov. 5, 2015; 129 Stat. 646) Social Security Act to clarify address.

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