Vol. 81 Monday, No. 191 October 3, 2016
Pages 67901–68288
OFFICE OF THE FEDERAL REGISTER
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Contents Federal Register Vol. 81, No. 191
Monday, October 3, 2016
Air Force Department Economic Development Administration NOTICES PROPOSED RULES Meetings: Revolving Loan Fund Program Changes and General Air University Board of Visitors, 67998 Updates to PWEDA Regulations, 68186–68213 Software and Documentation for Licensing, 67998 Education Department Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Guidance: Designation as Eligible Institution under Title III and NIOSH List of Antineoplastic and Other Hazardous Drugs Title V Programs and to Request Waiver of Non- in Healthcare Settings 2016, 68019 Federal Cost Share Reimbursement, 68002–68003 Interest Rates for Federal Student Loans Made under Civil Rights Commission William D. Ford Federal Direct Loan Program, 68003– NOTICES 68005 Meetings: Variable Interest Rates of Federal Student Loans Made Indiana Advisory Committee, 67956–67957 under Federal Family Education Loan Program, 68000– Minnesota Advisory Committee, 67956 68002
Coast Guard Energy Department RULES See Federal Energy Regulatory Commission Safety Zones: PROPOSED RULES 100th Ore Dock Anniversary Celebration, Chequamegon Loan Guarantees for Projects That Employ Innovative Bay, Ashland, WI, 67913–67915 Technologies, 67924–67937 Allegheny River, Ohio River, Monongahela River, Environmental Protection Agency Pittsburgh, PA, 67911–67913 RULES Diving Operations, Delaware River, Philadelphia, PA, Air Quality State Implementation Plans; Approvals and 67909–67911 Promulgations: Dredging, Shark River, NJ, 67906–67909 Missouri; Greenhouse Gas Tailoring Rule and Non- substantive Definition and Language Changes, Commerce Department 67915–67917 See Economic Development Administration Wyoming; Designated Facilities and Pollutants; Control of See Foreign-Trade Zones Board Emissions from Existing Hospital/Medical/Infectious See International Trade Administration Waste Incinerator Units, Plan Revision, 67918–67920 See National Oceanic and Atmospheric Administration Tolerance Exemptions: See Patent and Trademark Office Bacillus mycoides isolate J, 67920–67922 NOTICES Treatment of Data Influenced by Exceptional Events, Agency Information Collection Activities; Proposals, 68216–68282 Submissions, and Approvals, 67957–67959 PROPOSED RULES Performance Review Board Memberships: Air Quality State Implementation Plans; Approvals and Departmental, 67959 Promulgations: Office of the Secretary, 67959–67960 Missouri; Greenhouse Gas Tailoring Rule and Non- substantive Definition and Language Changes, 67954 Copyright Office, Library of Congress Wyoming; Revision to Control of Emissions from Existing PROPOSED RULES Hospital/Medical/Infectious Waste Incinerator Units, Technical Amendments, 67940–67954 67954–67955 Prevention of Significant Deterioration and Title V Corporation for National and Community Service Greenhouse Gas Permitting Regulations: Establishment of a Significant Emissions Rate for NOTICES Greenhouse Gas Emissions under the Prevention of Meetings; Sunshine Act, 67997–67998 Significant Deterioration Program; Revisions, 68110– 68147 Defense Department NOTICES See Air Force Department Cancellation of Pesticides for Non-Payment of Year 2016 NOTICES Registration Maintenance Fees, 68013–68016 Charter Renewals: Pesticide Product Registrations: Vietnam War Commemoration Advisory Committee, New Active Ingredients, 68012–68013 67999–68000 TRICARE: Federal Aviation Administration Two-Year Extension of Co-Pay Waiver at Captain James RULES A. Lovell Federal Health Care Center Demonstration Airworthiness Directives: Project, 67998–67999 Airbus Helicopters, 67904–67906
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PROPOSED RULES Changes in Bank Control: Airworthiness Directives: Acquisitions of Shares of a Bank or Bank Holding Airbus Airplanes, 67937–67939 Company, 68017 Formations of, Acquisitions by, and Mergers of Bank Federal Communications Commission Holding Companies, 68017 RULES Lifeline and Link Up Reform and Modernization, Telecommunications Carriers Eligible for Universal Federal Transit Administration Service Support, Connect America Fund, 67922–67923 NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 68102–68104 Submissions, and Approvals, 68016–68017 Federal Emergency Management Agency Fish and Wildlife Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals: Community Rating System Program; Application Federal Fish and Wildlife Permits, Applications, and Worksheets and Commentary, 68023–68024 Reports: Native Endangered and Threatened Species, 68029–68031 Federal Energy Regulatory Commission NOTICES Combined Filings, 68010–68012 Foreign Assets Control Office Environmental Assessments; Availability, etc.: NOTICES Columbia Gas Transmission, LLC, Central Virginia Blocking or Unblocking of Persons and Properties, 68106 Connector Project, 68008–68010 GB Energy Park, LLC, 68006–68007 Foreign-Trade Zones Board Initial Market-Based Rate Filings Including Requests for NOTICES Blanket Section 204 Authorizations: Production Activities; Authorizations: Cimarron Bend Wind Project I, LLC, 68006 Deere and Co., Subzone 133F (Construction and Forestry City Point Energy Center, LLC, 68005–68006 Equipment), Dubuque, IA; Foreign-Trade Zone 133, Grant Plains Wind, LLC, 68010–68011 Quad-Cities, Iowa/Illinois, 67960 Nicolis, LLC, 68007 Tropico, LLC, 68007 Petitions for Enforcement: Health and Human Services Department Windham Solar, LLC and Allco Finance, Ltd., 68008 See Centers for Disease Control and Prevention Refund Effective Dates: See National Institutes of Health Talen Energy Marketing, LLC, Montour, LLC, Bayonne See Substance Abuse and Mental Health Services Plant Holding, LLC, et al., 68005 Administration Federal Highway Administration NOTICES Homeland Security Department Environmental Impact Statements; Availability, etc.: See Coast Guard North-South Corridor Study; Interstate 10 to U.S. See Federal Emergency Management Agency Highway 60, Pinal County, AZ, 68095–68096 See U.S. Customs and Border Protection NOTICES Federal Motor Carrier Safety Administration Requests to Submit Invoices for Over-Age Firm-Fixed-Price NOTICES Contracts, 68024 Qualifications of Drivers; Exemption Applications: Hearing, 68096–68098 Housing and Urban Development Department Vision, 68098–68100 NOTICES Federal Railroad Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Applications for Approvals of Discontinuances or Utility Allowance Adjustments for Rental Assistance, Modifications of Railroad Signal Systems: 68024–68025 Union Pacific Railroad Co., 68100 Orders of Succession: Petitions for Waivers of Compliance: Office of Policy Development and Research, 68025–68026 BNSF Railway Co., 68101 Privacy Act; Computer Matching Program, 68026–68028 CSX Transportation, 68101–68102 Railworthiness Directives: Interior Department Certain Railroad Tank Cars Equipped with Bottom Outlet See Fish and Wildlife Service Valve Assembly and Constructed by American See National Park Service Railcar Industries and ACF Industries, 68100–68101 Federal Reserve System Internal Revenue Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 68018–68019 Submissions, and Approvals, 68106–68107
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International Trade Administration National Institutes of Health NOTICES NOTICES Antidumping or Countervailing Duty Investigations, Orders, Challenges: or Reviews: Antimicrobial Resistance Rapid, Point-of-Need Diagnostic Certain Hot-Rolled Steel Flat Products from Australia, Test; Requirements and Registration Announcements; Brazil, Japan, Republic of Korea, Netherlands, Correction, 68020–68021 Republic of Turkey, and United Kingdom, 67962– Meetings: 67967 National Cancer Institute, 68019–68020 Certain Hot-Rolled Steel Flat Products from Brazil and National Institute of Allergy and Infectious Diseases, Republic of Korea, 67960–67962 68021 Initiation of Five-Year (Sunset) Review, 67967–67968 National Institute on Aging, 68020 Opportunity to Request Administrative Review, 67968– 67970 National Oceanic and Atmospheric Administration NOTICES International Trade Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 67984–67985 Antidumping or Countervailing Duty Investigations, Orders, Meetings: or Reviews: New England Fishery Management Council, 67970– Artists’ Canvas from China; Institution of a Five-Year 67971, 67983–67984 Review, 68049–68052 Pacific Fishery Management Council, 67983 Pure Magnesium from China; Institution of a Five-Year South Atlantic Fishery Management Council, 67982– Review, 68046–68049 67983 Appointment of Individuals to Serve as Members of the Permits: Performance Review Board, 68052 Marine Mammals; File No. 17845, 67997 Marine Mammals; File No. 20481, 67983 Justice Department Takes of Marine Mammals Incidental to Specified NOTICES Activities: Proposed Consent Decrees under Clean Water Act, 68061– Pier Construction and Support Facilities Project, Port 68062 Angeles, WA, 67985–67997 Senior Executive Service Standing Performance Review U.S. Air Force 86 Fighter Weapons Squadron Long Range Boards Membership, 68052–68061 Strike Weapon Systems Evaluation Program, Pacific Missile Range Facility, Kauai, HI, 67971–67982 Labor Department See Mine Safety and Health Administration National Park Service See Veterans Employment and Training Service NOTICES NOTICES Inventory Completions: List of Products Requiring Federal Contractor Certification Indiana University, Bloomington, IN, 68033–68034 as to Forced or Indentured Child Labor Pursuant; Peabody Museum of Archaeology and Ethnology, Harvard Approval, 68062–68064 University, Cambridge, MA, 68031–68032, 68035– 68046 Library of Congress University of Pennsylvania Museum of Archaeology and See Copyright Office, Library of Congress Anthropology, Philadelphia, PA, 68039–68040 Repatriations of Cultural Items: Maritime Administration Phoebe A. Hearst Museum of Anthropology, University of NOTICES California, Berkeley, Berkeley, CA, 68034–68035 Requests for Applications: Maritime Security Program Operating Agreements, National Science Foundation 68104–68105 NOTICES Meetings; Sunshine Act, 68066 Mine Safety and Health Administration NOTICES Nuclear Regulatory Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Meetings; Sunshine Act, 68066–68067 Slope and Shaft Sinking Plans, 68064–68065 Patent and Trademark Office National Aeronautics and Space Administration PROPOSED RULES NOTICES Setting and Adjusting Patent Fees, FY 2017, 68150–68183 Charter Renewals: International Space Station Advisory Committee, 68065– Postal Service 68066 NOTICES Privacy Act; Systems of Records, 68067 National Endowment for the Arts Product Changes: NOTICES Priority Mail and First-Class Package Service Negotiated Meetings: Service Agreement, 68067–68068 National Council on the Arts, 68066 Priority Mail Express and Priority Mail Negotiated Service, 68068 National Foundation on the Arts and the Humanities Priority Mail Express Negotiated Service Agreement, See National Endowment for the Arts 68068
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Presidential Documents Transportation Department PROCLAMATIONS See Federal Aviation Administration Special Observances: See Federal Highway Administration Death of Shimon Peres (Proc. 9504), 68283–68285 See Federal Motor Carrier Safety Administration National Arts and Humanities Month (Proc. 9505), See Federal Railroad Administration 68287–68288 See Federal Transit Administration See Maritime Administration Securities and Exchange Commission PROPOSED RULES NOTICES Nondiscrimination on the Basis of Disability in Air Travel: Agency Information Collection Activities; Proposals, Negotiated Rulemaking Committee Meeting, 67939–67940 Submissions, and Approvals, 68068–68069, 68078– NOTICES 68079, 68087 Meetings: Applications: Global Positioning System Adjacent Band Compatibility Foreside ETF Trust, et al., 68079–68080 Assessment Workshop V, 68105–68106 Meetings; Sunshine Act, 68081 Self-Regulatory Organizations; Proposed Rule Changes: Treasury Department BOX Options Exchange, LLC, 68069–68071 See Foreign Assets Control Office Chicago Board Options Exchange, Inc., 68071–68074 See Internal Revenue Service Investors Exchange, LLC, 68081–68083 LCH SA, 68074–68078 Miami International Securities Exchange, LLC, 68084– U.S. Customs and Border Protection 68086 NOTICES New York Stock Exchange, LLC, 68083–68084 Automated Commercial Environments: NYSE Arca, Inc., 68078, 68086 Sole CBP-Authorized Electronic Data Interchange System NYSE MKT, LLC, 68086–68087 for Processing Electronic Drawback and Duty Deferral Entry and Entry Summary Filings, 68023 Small Business Administration RULES Veterans Employment and Training Service Acquisition Process: NOTICES Task and Delivery Order Contracts, Bundling, Meetings: Consolidation, 67901 Advisory Committee on Veterans’ Employment, Training Disaster Assistance Loan Program: and Employer Outreach, 68065 Disaster Loan Mitigation, Contractor Malfeasance and Secured Threshold, 67901–67904 NOTICES Disaster Declarations: Separate Parts In This Issue Wisconsin, 68087–68088 Part II Social Security Administration Environmental Protection Agency, 68110–68147 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 68088–68093 Part III Commerce Department, Patent and Trademark Office, State Department 68150–68183 NOTICES Culturally Significant Objects Imported for Exhibition: Part IV Matisse and Diebenkorn, 68093 Commerce Department, Economic Development Administration, 68186–68213 Substance Abuse and Mental Health Services Administration Part V NOTICES Environmental Protection Agency, 68216–68282 Certified Laboratories and Instrumented Initial Testing Facilities: Part VI List of Facilities that Meet Minimum Standards to Engage Presidential Documents, 68283–68285, 68287–68288 in Urine Drug Testing for Federal Agencies, 68021– 68023
Surface Transportation Board Reader Aids NOTICES Consult the Reader Aids section at the end of this issue for Discontinuance of Service Exemptions: phone numbers, online resources, finding aids, and notice Florida Northern Railroad Co., Inc., Marion County, FL, of recently enacted public laws. 68093–68094 To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/ Susquehanna River Basin Commission accounts/USGPOOFR/subscriber/new, enter your e-mail NOTICES address, then follow the instructions to join, leave, or Commission Actions, 68094–68095 manage your subscription.
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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: 9504...... 68285 9505...... 68287 10 CFR Proposed Rules: 609...... 67924 13 CFR 121...... 67091 123...... 67091 Proposed Rules: 300...... 68186 301...... 68186 302...... 68186 303...... 68186 304...... 68186 305...... 68186 307...... 68186 309...... 68186 314...... 68186 14 CFR 39...... 67904 Proposed Rules: 39...... 67937 382...... 67939 33 CFR 165 (4 documents) ...... 67906, 67909, 67911, 67913 37 CFR Proposed Rules: 1...... 68150 41...... 68150 42...... 68150 201...... 67940 202...... 67940 203...... 67940 204...... 67940 205...... 67940 210...... 67940 211...... 67940 212...... 67940 253...... 67940 255...... 67940 258...... 67940 260...... 67940 261...... 67940 262...... 67940 263...... 67940 270...... 67940 40 CFR 50...... 68216 51...... 68216 52...... 67915 62...... 67918 70...... 67915 180...... 67920 Proposed Rules: 51...... 68110 52 (2 documents) ...... 67954, 68110 60...... 68110 62...... 67954 70 (2 documents) ...... 67954, 68110 71...... 68110 47 CFR 54...... 67922
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Rules and Regulations Federal Register Vol. 81, No. 191
Monday, October 3, 2016
This section of the FEDERAL REGISTER size determination in connection with a statutory authority and remove an contains regulatory documents having general concern that is otherwise eligible for obsolete reference in part 123. applicability and legal effect, most of which program certification.’’ However, the DATES: This rule is effective on October are keyed to and codified in the Code of amendment could not be implemented 3, 2016. Federal Regulations, which is published under because at that point the words to be 50 titles pursuant to 44 U.S.C. 1510. FOR FURTHER INFORMATION CONTACT: Eric removed did not exist in § 121.404(b). Wall, Office of Disaster Assistance, 409 The Code of Federal Regulations is sold by Therefore, SBA is removing that 3rd St. SW., Washington, DC 20416, the Superintendent of Documents. Prices of instruction from the final rule published (202) 205–6739. new books are listed in the first FEDERAL on October 2, 2013. SUPPLEMENTARY INFORMATION: REGISTER issue of each week. In the FR Rule Doc. No. 2016–22064 in the issue of October 2, 2013, I. Background beginning on page 61113, make the Section 7(b) of the Small Business SMALL BUSINESS ADMINISTRATION following correction: Act, 15 U.S.C. 636(b), authorizes SBA to On page 61131, first column, remove make direct loans to homeowners, 13 CFR Part 121 amendatory instruction number 4c. renters, businesses, and non-profit RIN 3245–AG20 Dated: September 21, 2016. organizations that have been adversely A. John Shoraka, affected by a disaster. After a declared Acquisition Process: Task and disaster, SBA makes loans of up to Delivery Order Contracts, Bundling, Associate Administrator for Government Contracting and Business Development. $200,000 to homeowners and renters Consolidation (plus up to $40,000 for personal [FR Doc. 2016–23478 Filed 9–30–16; 8:45 am] property) and loans of up to $2 million AGENCY: U.S. Small Business BILLING CODE 8025–01–P Administration. to businesses of all sizes and non-profit organizations to assist with any ACTION: Final rule; correction. SMALL BUSINESS ADMINISTRATION uninsured and otherwise SUMMARY: The U.S. Small Business uncompensated physical losses Administration (SBA) is correcting a 13 CFR Part 123 sustained during the disaster. In final rule that appeared in the Federal addition to loans for the repair or replacement of damaged physical Register on October 2, 2013. The rule, RIN 3245–AG78 which described how supply property, SBA also offers working procurements should be classified, Disaster Assistance Loan Program; capital loans, known as Economic Injury mistakenly attempted to amend a Disaster Loan Mitigation, Contractor Disaster Loans (EIDLs), to small regulation by removing words that did Malfeasance and Secured Threshold businesses, small agricultural not exist in the particular paragraph. cooperatives, and most private non- This notice corrects that rule document AGENCY: U.S. Small Business profit organizations that have suffered by removing the instruction. Administration. economic injury caused by a disaster. ACTION: The maximum loan amount is $2 DATES: Effective October 3, 2016. Final rule. million for physical and economic FOR FURTHER INFORMATION CONTACT: SUMMARY: On April 6, 2016, the U.S. injuries combined. SBA may waive this Michael McLaughlin, Office of Policy, Small Business Administration (SBA) $2 million limit if a business is a major Planning & Liaison, U.S. Small Business published in the Federal Register a source of employment. Administration, 409 Third Street SW., proposed rule to amend its disaster loan The Recovery Improvements for Small Washington, DC 20416; 202–205–5353; program regulations in response to Entities After Disaster Act of 2015, [email protected]. changes made to the Small Business Act Public Law 114–88, 129 Stat. 686 SUPPLEMENTARY INFORMATION: On June (the Act) by the Recovery Improvements (November 25, 2015), amended certain 28, 2013, SBA published a rule in the for Small Entities After Disaster Act of terms and conditions of SBA’s Disaster Federal Register at 78 FR 38811 that 2015 (the RISE Act). SBA received no Assistance program. SBA published a amended § 121.404(b) by removing ‘‘and comments on its proposed rule; proposed rule in the Federal Register on the date of certification by SBA’’ and therefore SBA adopts the proposed rule April 6, 2016 (81 FR 19934), to address adding in its place ‘‘and, where without change. The first change three of those statutory amendments, as applicable, the date the SBA program expands the definition of a mitigating set out in sections 1102 (safe rooms), office requests a formal size measure to include the construction of 2102 (three year temporary increase in determination in connection with a a safe room or similar storm shelter unsecured loan limits), and 2107 concern that otherwise appears eligible designed to protect property and (contractor malfeasance) of the RISE for program certification.’’ The final rule occupants. The second change allows Act, as well as to make several minor published on October 2, 2013, (78 FR for an increase of the unsecured technical amendments to the program 61113) intended to amend 13 CFR threshold for physical damage loans for regulations to ensure consistency 121.404(b) by removing ‘‘date of non-major disasters. The third change between the program’s regulatory and certification by SBA’’ and adding in its allows SBA to increase loan amounts to statutory authorities. The comment place ‘‘date the Director of the Division address contractor malfeasance. In period for the proposed rule ended on of Program Certification and Eligibility addition, SBA is making several June 6, 2016, and SBA received no or the Associate Administrator for technical corrections to conform certain comments. As discussed below, this Business Development requests a formal regulatory provisions to existing final rule implements those statutory
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and technical amendments without when a contractor or other person disaster victims, enabling them to change. engages in malfeasance in connection replace property damaged or destroyed with repairs to, rehabilitation of, or in declared disasters. It also offers such II. Changes Made as a Result of the replacement of property for which SBA loans to affected small businesses and RISE Act made a disaster loan and the non-profits to help them recover from Section 1102 of the RISE Act, Use of malfeasance results in substantial economic injury caused by such Physical Damage Disaster Loans to economic damage or substantial risks to disasters. The changes in this final rule Construct Safe Rooms, expanded the health or safety. SBA proposed to revise will not require members of the public definition of mitigation to include 13 CFR 123.18, 123.20, and 123.105 to to adjust their behavior. Rather, the ‘‘construction of a safe room or similar include details on what constitutes changes will benefit the public by storm shelter designed to protect malfeasance, provide guidance on when increasing the unsecured threshold for property and occupants from tornadoes borrowers are eligible to apply for loan all disaster loans, allowing SBA to or other natural disasters, if such safe increases due to malfeasance, and allow provide supplemental assistance for room or similar storm shelter is home loan borrowers to increase their malfeasance by a contractor or other constructed in accordance with loans up to an additional $200,000 for person, and expanding available uses of applicable standards issued by the malfeasance. For business loans, the mitigation funds to include safe rooms Federal Emergency Management total maximum loan amount, including and storm shelters. Agency.’’ This change allows SBA to any increase for malfeasance, remains In light of the urgent need to assist include a safe room or storm shelter as $2,000,000. The final rule adopts the disaster victims, SBA finds that there is a mitigating measure; therefore, SBA is proposed revisions to 13 CFR 123.18, good cause for making this rule effective amending 13 CFR 123.21 to reflect this 123.20, and 123.105 without change. immediately instead of observing the change in the definition of a mitigation The changes made as a result of the 30-day period between publication and measure. Increases for mitigation RISE Act apply to all eligible recipients effective date. purposes are only available when the of SBA disaster loans for disasters Compliance with Executive Orders mitigation protects or mitigates against declared on or after the effective date of 12866, 12988, 13132, and 13563 and the damage from the same type of the RISE Act, November 25, 2015. occurrence as the declared disaster. Paperwork Reduction Act (44 U.S.C. Ch. Revised § 123.21 also clarifies that a III. Technical Corrections 35) and the Regulatory Flexibility Act (5 mitigation measure is something done In addition to the changes made as a U.S.C. 601–612): for the purpose of protecting property result of the RISE Act, SBA is also Executive Order 12866 (real and personal) and occupants. In making several technical corrections. In addition, safe rooms and storm shelters the proposed rule, SBA proposed to The Office of Management and Budget are now included in the examples of change the phrase ‘‘sudden physical (OMB) has determined that this rule mitigation measures. The final rule event’’ to ‘‘sudden event’’ in 13 CFR does not constitute a significant adopts the proposed revisions to 13 CFR 123.2 to conform the regulation to SBA’s regulatory action under Executive Order 123.21 without change. statutory definition of ‘‘disaster’’ in 15 12866. This is not a major rule under Section 2102 of the RISE Act, U.S.C. 632(k). SBA also proposed to the Congressional Review Act, 5 U.S.C. Collateral Requirements for Disaster revise 13 CFR 123.3 to remove the 800. Loans, increased SBA’s unsecured loan reference to ‘‘emergency’’ declarations Executive Order 12988 limits for all disaster loans for a period in 123.3(a)(1) in order to conform the of three years. Therefore, SBA proposed regulations to SBA’s statutory authority. This action meets applicable to amend 13 CFR 123.11 to reflect a SBA proposed this change to clarify that standards set forth in sections 3(a) and $25,000 unsecured threshold for all SBA disaster assistance is not 3(b)(2) of Executive Order 12988, Civil disaster declarations. In accordance automatically authorized when the Justice Reform, to minimize litigation, with the RISE Act, after November 25, President declares an emergency; such eliminate ambiguity, and reduce 2018, the unsecured limit for physical assistance may be available, however, if burden. This action does not have damage loans for non-major disasters SBA declares a disaster under its own preemptive effect. The final rule will will revert back to $14,000, unless authority. Finally, SBA proposed to have retroactive effect to the enactment Congress makes the increase permanent. revise 13 CFR 123.13(a) to remove the date of the statutory amendments. The final rule adopts the proposed reference to an expired OMB control Sections 1102 (Safe Rooms), 2102 (3 revision to 13 CFR 123.11 without number. These proposed technical year temporary increase in unsecured change. corrections are all adopted without loan limits) and 2107 (Contractor Section 2107 of the RISE Act, change in the final rule. Malfeasance) of the RISE Act amended Contractor Malfeasance, expanded the Small Business Act effective SBA’s ability to provide disaster IV. Justification for Immediate Effective November 25, 2015. The regulatory assistance by expressly allowing for Date changes made as a result of the RISE Act supplemental assistance for malfeasance The APA requires that ‘‘publication or will apply to disasters declared on or by a contractor or other person and service of a substantive rule shall be after November 25, 2015. defining what constitutes malfeasance. made not less than 30 days before its Executive Order 13132 Prior to implementation of the RISE Act, effective date, except as . . . otherwise SBA provided assistance only for provided by the agency for good cause For the purposes of Executive Order malfeasance by contractors, not found and published with the rule.’’ 5 13132, this rule will not have malfeasance by any ‘‘other person’’ in U.S.C. 553(d)(3). The purpose of this substantial direct effects on the States, connection with the loan, and did not provision is to provide interested and on the relationship between the national allow for increases in the loan amount affected members of the public government and the States, or the beyond the regulatory limit of $200,000 sufficient time to adjust their behavior distribution of power and for repair or replacement of damaged before the rule takes effect. responsibilities among the various property. The RISE Act gave SBA SBA’s Disaster Assistance Program levels of government. Therefore, SBA authority to increase a disaster loan offers low interest, fixed rate loans to determined that this rule has no
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federalism implications warranting List of Subjects in 13 CFR Part 123 § 123.18 Can I request an increase in the preparation of a federalism assessment. amount of a physical disaster loan? Disaster assistance, Loan programs— (a) Generally, SBA will consider your Executive Order 13563 business, Reporting and recordkeeping request for an increase in your loan if requirements, Small businesses. Executive Order 13563 reaffirms the you can show that the eligible cost of principles of Executive Order 12866 For reasons stated in the preamble, repair or replacement of damages while calling for improvements in the the U.S. Small Business Administration increased because of events occurring nation’s regulatory system to promote amends 13 CFR part 123 as follows: after the loan approval that were beyond predictability, to reduce uncertainty, your control. * * * PART 123—DISASTER LOAN and to use the best, most innovative, (b) For all disasters occurring on or PROGRAM and least burdensome tools for after November 25, 2015, you may also achieving regulatory ends. The request an increase in your loan if you ■ 1. The authority citation for part 123 executive order directs agencies to suffered substantial economic damage is revised to read as follows: consider regulatory approaches that or substantial risks to health or safety as reduce burdens and maintain flexibility Authority: 15 U.S.C. 632, 634(b)(6), 636(b), a result of malfeasance in connection and freedom of choice for the public 636(d), 657n; and Pub. L. 102–395, 106 Stat. with the repair or replacement of real where these approaches are relevant, 1828, 1864. property or business machinery and feasible, and consistent with regulatory ■ 2. Amend § 123.2 by revising the equipment for which SBA made a objectives. Executive Order 13563 seventh sentence to read as follows: disaster loan. See § 123.105 for limits on emphasizes further that regulations home loan amounts and § 123.202 for § 123.2 What are disaster loans and limits on business loan amounts. must be based on the best available disaster declarations? science and that the rulemaking process Malfeasance may include, but is not must allow for public participation and * * * Sudden events that cause limited to, nonperformance of all or any an open exchange of ideas. We substantial economic injury may be portion of the work for which a developed this rule in a manner disasters even if they do not cause contractor was paid, work that does not consistent with these requirements and physical damage to a victim’s meet acceptable standards, or use of afforded the public 60 days to property. * * * substandard materials. participate and provide comments. No ■ 3. Amend § 123.3 by revising ■ 7. Amend § 123.20 by redesignating comments were received. paragraph (a)(1) to read as follows: the undesignated text as paragraph (a) and adding paragraph (b) to read as Paperwork Reduction Act (44 U.S.C. Ch. § 123.3 How are disaster declarations follows: 35) made? § 123.20 How long do I have to request an For purpose of the Paperwork (a) * * * (1) The President declares a Major increase in the amount of a physical Reduction Act, 44 U.S.C. Ch. 35, SBA disaster loan or an economic injury loan? has determined that this rule will not Disaster and authorizes Federal Assistance, including individual (a) * * * impose any new reporting or (b) For physical disaster loan recordkeeping requirements. assistance (Assistance to Individuals and Households Program). increases requested under § 123.18(b) as Regulatory Flexibility Act (5 U.S.C. 601– a result of malfeasance, the request must * * * * * 612) be received not later than two years after ■ 4. Amend § 123.11 by revising the date of final disbursement. The Regulatory Flexibility Act (RFA), paragraph (a)(2) to read as follows: ■ 8. Amend § 123.21 by revising the first 5 U.S.C. 601, requires administrative and third sentences to read as follows: agencies to consider the effect of their § 123.11 Does SBA require collateral for actions on small entities, including any of its disaster loans? § 123.21 What is a mitigation measure? small businesses. According to the RFA, (a) * * * A mitigation measure is something when an agency issues a rule, the (2) Physical disaster home and done for the purpose of protecting agency must prepare an analysis to physical disaster business loans. property and occupants against disaster determine whether the impact of the Generally, SBA will not require that you related damage. * * * Examples of rule will have a significant economic pledge collateral to secure a physical mitigation measures include building impact on a substantial number of small disaster home or physical disaster retaining walls, sea walls, grading and entities. However, the RFA allows an business loan of $25,000 or less. This contouring land, elevating flood prone agency to certify a rule in lieu of authority expires on November 25, structures, relocating utilities, preparing an analysis if the rulemaking 2018, unless extended by statute. constructing a safe room or similar is not expected to have a significant * * * * * storm shelter (if such safe room or economic impact on a substantial similar storm shelter is constructed in number of small entities. § 123.13 [Amended] accordance with applicable standards While this rule will affect all future ■ 5. Amend § 123.13 by removing the issued by the Federal Emergency applicants for disaster assistance, some parenthetical phrase ‘‘(OMB Approval Management Agency), or retrofitting of which would be small entities, it does No. 3245–0122.)’’ from paragraph (a). structures to protect against high winds, not impose any requirements on small earthquakes, flood, wildfires, or other ■ 6. Amend § 123.18 by: entities. It streamlines SBA’s processes physical disasters. * * * ■ a. Redesignating the undesignated text in order to enable the Agency to provide ■ 9. Amend § 123.105 by: as paragraph (a); disaster assistance more quickly and ■ a. Revising paragraph (a) introductory ■ efficiently to small entities. SBA is not b. Revising the first sentence of the text; a small entity. As such, SBA certifies redesignated paragraph (a); and ■ b. Removing the word ‘‘and’’ from that this rule does not have a significant ■ c. Adding paragraph (b). paragraph (a)(3); economic impact on a substantial The revisions and additions read as ■ c. Revising paragraph (a)(4); and number of small entities. follows: ■ d. Adding paragraph (a)(5).
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The revisions and additions read as • Federal eRulemaking Docket: Go to comments, data, or views. We also follows: http://www.regulations.gov. Follow the invite comments relating to the online instructions for sending your economic, environmental, energy, or § 123.105 How much can I borrow with a comments electronically. federalism impacts that resulted from home disaster loan and what limits apply on • use of funds and repayment terms? Fax: 202–493–2251. adopting this AD. The most helpful • Mail: Send comments to the U.S. comments reference a specific portion of (a) There are limits on how much Department of Transportation, Docket the AD, explain the reason for any money you can borrow for particular Operations, M–30, West Building recommended change, and include purposes: Ground Floor, Room W12–140, 1200 supporting data. To ensure the docket * * * * * New Jersey Avenue SE., Washington, does not contain duplicate comments, (4) 20 percent of the verified loss (not DC 20590–0001. commenters should send only one copy including refinancing or malfeasance), • Hand Delivery: Deliver to the of written comments, or if comments are before deduction of compensation from ‘‘Mail’’ address between 9 a.m. and 5 filed electronically, commenters should other sources, up to a maximum of p.m., Monday through Friday, except submit them only one time. We will file $200,000 for post-disaster mitigation Federal holidays. in the docket all comments that we (see § 123.107); and receive, as well as a report summarizing Examining the AD Docket (5) $200,000 for eligible malfeasance, each substantive public contact with pursuant to § 123.18. You may examine the AD docket on FAA personnel concerning this * * * * * the Internet at http:// rulemaking during the comment period. www.regulations.gov by searching for We will consider all the comments we Dated: September 22, 2016. and locating Docket No. FAA–2016– receive and may conduct additional Maria Contreras-Sweet, 9168; or in person at the Docket rulemaking based on those comments. Administrator . Operations Office between 9 a.m. and 5 Discussion [FR Doc. 2016–23733 Filed 9–30–16; 8:45 am] p.m., Monday through Friday, except BILLING CODE 8025–01–P Federal holidays. The AD docket On April 13, 2016, EASA, which is contains this AD, the European Aviation the Technical Agent for the Member Safety Agency (EASA) AD, any States of the European Union, issued DEPARTMENT OF TRANSPORTATION incorporated by reference service EASA Emergency AD No. 2016–0073–E information, the economic evaluation, (AD 2016–0073–E) to correct an unsafe Federal Aviation Administration any comments received, and other condition for Airbus Helicopters Model information. The street address for the SA341G and SA342J helicopters with a 14 CFR Part 39 Docket Operations Office (telephone crosstube part number (P/N) 800–647–5527) is in the ADDRESSES 341A415201.00 or P/N 341A415201.01. [Docket No. FAA–2016–9168; Directorate section. Comments will be available in EASA advises that two reported failures Identifier 2016–SW–028–AD; Amendment of a crosstube have occurred during 39–18670; AD 2016–20–04] the AD docket shortly after receipt. For service information identified in maintenance and towing operations, RIN 2120–AA64 this final rule, contact Airbus resulting in the helicopters dropping or Helicopters, 2701 N. Forum Drive, tipping over. EASA further states that Airworthiness Directives; Airbus Grand Prairie, TX 75052; telephone excessive hardness of the crosstube Helicopters (972) 641–0000 or (800) 232–0323; fax material, combined with inter-granular corrosion initiation, may have affected AGENCY: Federal Aviation (972) 641–3775; or at http:// the structural integrity of the crosstube. Administration (FAA), Department of www.airbushelicopters.com/techpub. EASA advises that this condition could Transportation (DOT). You may review the referenced service information at the FAA, Office of the lead to failure of the crosstube and ACTION: Final rule; request for dropping or tipping over of the comments. Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N–321, helicopter. To address this unsafe SUMMARY: We are adopting a new Fort Worth, TX 76177. It is also condition, EASA AD 2016–0073–E airworthiness directive (AD) for Airbus available on the Internet at http:// requires identifying the affected Helicopters Model SA341G and SA342J. www.regulations.gov by searching for crosstubes, implementing a temporary This AD prohibits autorotation training and locating Docket No. FAA–2016– prohibition of autorotation training flights until the hardness of the landing 9168. flights on affected helicopters by amending the RFM and installing a gear rear crosstube (crosstube) is FOR FURTHER INFORMATION CONTACT: Matt inspected. This AD is prompted by two placard, inspecting the hardness of each Fuller, Senior Aviation Safety Engineer, affected crosstube, and replacing any reports of crosstubes failing during Safety Management Group, Rotorcraft ground handling. These actions are crosstubes that do not meet the hardness Directorate, FAA, 10101 Hillwood criteria. intended to prevent failure of a Pkwy, Fort Worth, TX 76177; telephone crosstube, which could result in (817) 222–5110; email matthew.fuller@ FAA’s Determination dropping or tipping of the helicopter. faa.gov. These helicopters have been approved DATES: This AD becomes effective SUPPLEMENTARY INFORMATION: by the aviation authority of France and October 18, 2016. are approved for operation in the United The Director of the Federal Register Comments Invited States. Pursuant to our bilateral approved the incorporation by reference This AD is a final rule that involves agreement with France, EASA, its of a certain document listed in this AD requirements affecting flight safety, and technical representative, has notified us as of October 18, 2016. we did not provide you with notice and of the unsafe condition described in the We must receive comments on this an opportunity to provide your EASA AD. We are issuing this AD AD by December 2, 2016. comments prior to it becoming effective. because we evaluated all information ADDRESSES: You may send comments by However, we invite you to participate in provided by EASA and determined the any of the following methods: this rulemaking by submitting written unsafe condition exists and is likely to
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exist or develop on other helicopters of U.S. fleet. Inspecting a crosstube will responsibilities among the various these same type designs. require about 8 work-hours, and the levels of government. required materials cost is minimal, for a For the reasons discussed, I certify Related Service Information Under 1 cost per helicopter of $680 and a total that this AD: CFR Part 51 cost of $11,560 to the U.S. fleet. 1. Is not a ‘‘significant regulatory Airbus Helicopters has issued Alert If required, replacing a crosstube will action’’ under Executive Order 12866; Service Bulletin (ASB) No. SA341/2– require 8 work-hours, and required parts 2. Is not a ‘‘significant rule’’ under 32.08, Revision 0, dated March 24, 2016 will cost $11,952, for a total cost of DOT Regulatory Policies and Procedures (ASB 32.08), which specifies removing $12,632 per helicopter. (44 FR 11034, February 26, 1979); the crosstube, checking its hardness, FAA’s Justification and Determination 3. Will not affect intrastate aviation in and replacing the crosstube if it fails the of the Effective Date Alaska to the extent that it justifies hardness test. ASB 32.08 also specifies making a regulatory distinction; and prohibiting autorotation training flights Providing an opportunity for public 4. Will not have a significant by installing a placard on the comments prior to adopting these AD economic impact, positive or negative, instrument panel. requirements would delay on a substantial number of small entities This service information is reasonably implementing the safety actions needed under the criteria of the Regulatory available because the interested parties to correct this known unsafe condition. Flexibility Act. have access to it through their normal Therefore, we find that the risk to the We prepared an economic evaluation course of business or by the means flying public justifies waiving notice of the estimated costs to comply with identified in the ADDRESSES section. and comment prior to the adoption of this AD and placed it in the AD docket. this rule because certain operations Other Related Service Information must be prohibited before further flight List of Subjects in 14 CFR Part 39 We also reviewed Aerospatiale (now until the required corrective actions are Air transportation, Aircraft, Aviation Airbus Helicopters) Flight Manuals SA accomplished. Those corrective actions safety, Incorporation by reference, 341G, Issue 2, dated December 1974, must then be accomplished within 25 Safety. and SA 342J, Issue 1, dated April 27, hours TIS, a short time interval for these 1976. These manuals provide various model helicopters. Adoption of the Amendment procedures, limitations, and Since an unsafe condition exists that Accordingly, under the authority performance and loading information. requires the immediate adoption of this delegated to me by the Administrator, AD, we determined that notice and AD Requirements the FAA amends 14 CFR part 39 as opportunity for public comment before follows: This AD requires, before further flight, issuing this AD are impracticable and prohibiting autorotation training flights that good cause exists for making this PART 39—AIRWORTHINESS by amending the RFM and installing a amendment effective in less than 30 DIRECTIVES limitation placard on the instrument days. panel. ■ 1. The authority citation for part 39 Authority for This Rulemaking This AD also requires, within 25 continues to read as follows: hours time-in-service (TIS), applying a Title 49 of the United States Code Authority: 49 U.S.C. 106(g), 40113, 44701. solution to the crosstube to determine specifies the FAA’s authority to issue whether the metal is coated and rules on aviation safety. Subtitle I, § 39.13 [Amended] removing all coating within a specific section 106, describes the authority of ■ 2. The FAA amends § 39.13 by adding area. Once there is no coating, this AD the FAA Administrator. ‘‘Subtitle VII: the following new airworthiness requires inspecting the hardness of the Aviation Programs,’’ describes in more directive (AD): crosstube and replacing the crosstube if detail the scope of the Agency’s it does not meet the hardness criteria. authority. 2016–20–04 Airbus Helicopters: After determining the crosstube meets We are issuing this rulemaking under Amendment 39–18670; Docket No. the hardness criteria, the placard and the authority described in ‘‘Subtitle VII, FAA–2016–9168; Directorate Identifier 2016–SW–028–AD. RFM amendment prohibiting Part A, Subpart III, Section 44701: autorotation training flights may be General requirements.’’ Under that (a) Applicability removed. section, Congress charges the FAA with This AD applies to Airbus Helicopters promoting safe flight of civil aircraft in Model SA 341G and Model SA 342J Differences Between This AD and the air commerce by prescribing regulations helicopters with a landing gear rear crosstube EASA AD for practices, methods, and procedures (crosstube) part number 341A415201.00 or EASA requires the hardness the Administrator finds necessary for 341A415201.01, certificated in any category. inspection to be completed within six safety in air commerce. This regulation (b) Unsafe Condition months, while we require the hardness is within the scope of that authority This AD defines the unsafe condition as inspection to be completed within 25 because it addresses an unsafe condition incorrect hardness of the crosstube, which hours TIS. that is likely to exist or develop on could result in failure of the crosstube and products identified in this rulemaking Costs of Compliance subsequent dropping or tipping of the action. helicopter. We estimate that this AD affects 17 helicopters of U.S. Registry. Regulatory Findings (c) Effective Date We estimate that operators may incur We determined that this AD will not This AD becomes effective October 18, the following costs in order to comply have federalism implications under 2016. with this AD. At an average labor rate Executive Order 13132. This AD will (d) Compliance of $85 per hour, amending the RFM and not have a substantial direct effect on You are responsible for performing each installing a placard will require about the States, on the relationship between action required by this AD within the 0.5 work-hour, for a cost per helicopter the national Government and the States, specified compliance time unless it has of $43, and a total cost of $731 to the or on the distribution of power and already been accomplished prior to that time.
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(e) Required Actions Hillwood Pkwy, Room 6N–321, Fort Worth, SUMMARY: The Coast Guard is extending (1) Before further flight: TX 76177. the effective period for the temporary (i) Amend the rotorcraft flight manual (2) The subject of this AD is addressed in safety zone on a portion of Shark River, (RFM) by inserting a copy of this AD or by European Aviation Safety Agency (EASA) in Neptune City, NJ. That temporary Emergency AD No. 2016–0073–E, dated April making pen-and-ink changes in Section 1, regulation was set to expire September Limitations, by adding the following: 13, 2016. You may view the EASA AD on the Internet at http://www.regulations.gov by 30, 2016. Extending the effective period AUTOROTATION TRAINING FLIGHTS ARE for this safety zone provides continued PROHIBITED. searching for and locating it in Docket No. (ii) Install a placard on the instrument FAA–2016–9168. and uninterrupted protection for the dredge operations and for the safety of panel in full view of the pilots that states the (h) Subject following: AUTOROTATION TRAINING life on navigable waters during dredging FLIGHTS ARE PROHIBITED. Joint Aircraft Service Component (JASC) operations. Code: 3213 Main Landing Gear Strut/Axel/ (2) Within 25 hours time-in-service: DATES: This rule is effective September (i) Inspect the crosstube to determine Truck. 30, 2016. Effective September 30, 2016, whether the metal is coated. Make a copper (i) Material Incorporated by Reference sulfate solution by following the the effective period for § 165.T05–0824, Accomplishment Instructions, paragraph (1) The Director of the Federal Register added at 81 FR 59484, August 30, 2016, 3.B.2.b.1., of Airbus Helicopters Alert Service approved the incorporation by reference of effective from September 1, 2016, Bulletin (ASB) No. SA341/342–32.08, the service information listed in this through September 30, 2016, is Revision 0, dated March 24, 2016 (ASB paragraph under 5 U.S.C. 552(a) and 1 CFR extended through October 31, 2016. 32.08). Apply 2 to 3 drops of the solution to part 51. ADDRESSES: Area Z in Figure 1 of ASB 32.08 and wait 10 (2) You must use this service information To view documents to 15 seconds. If a dark mark appears as as applicable to do the actions required by mentioned in this preamble as being shown in Area 2 of Figure 3 of ASB 32.08, this AD, unless the AD specifies otherwise. available in the docket, go to, type there is no metal coating. If a light mark (i) Airbus Helicopters Alert Service USCG–2016–0824 in the ‘‘SEARCH’’ appears as shown in Area 4 of Figure 3 of Bulletin No. SA341/342–32.08, Revision 0, box and click ‘‘SEARCH.’’ Click on ASB 32.08, remove all metal coating in Area dated March 24, 2016. Open Docket Folder on the line (ii) Reserved. Z of Figure 1 of ASB 32.08. associated with this rule. (ii) Inspect the hardness of the crosstube by (3) For Airbus Helicopters service using the criteria in the table under information identified in this final rule, FOR FURTHER INFORMATION CONTACT: If Paragraph 3.B.2.c. of ASB 32.08. If the contact Airbus Helicopters, 2701 N. Forum you have questions about this rule, call hardness is not within the value range in the Drive, Grand Prairie, TX 75052; telephone or email Marine Science Technician table, before further flight, replace the (972) 641–0000 or (800) 232–0323; fax (972) First Class Tom Simkins, U.S. Coast crosstube. If the hardness is within the value 641–3775; or at http:// Guard, Sector Delaware Bay, Waterways range in the table, apply corrosion protectant www.airbushelicopters.com/techpub. Management Division, Coast Guard; to Area Z in Figure 1 of ASB 32.08. (4) You may view this service information at FAA, Office of the Regional Counsel, telephone (215) 271–4889, email (iii) Remove the RFM limitation and the [email protected]. instrument panel placard required by Southwest Region, 10101 Hillwood Pkwy, paragraphs (e)(1)(i) and (e)(1)(ii) of this AD. Room 6N–321, Fort Worth, TX 76177. For SUPPLEMENTARY INFORMATION: information on the availability of this (f) Alternative Methods of Compliance material at the FAA, call (817) 222–5110. I. Table of Abbreviations (AMOCs) (5) You may view this service information CFR Code of Federal Regulations (1) The Manager, Safety Management that is incorporated by reference at the DHS Department of Homeland Security Group, FAA, may approve AMOCs for this National Archives and Records FR Federal Register AD. Send your proposal to: Matt Fuller, Administration (NARA). For information on NPRM Notice of proposed rulemaking Senior Aviation Safety Engineer, Safety the availability of this material at NARA, call § Section Management Group, Rotorcraft Directorate, (202) 741–6030, or go to: http:// U.S.C. United States Code FAA, 10101 Hillwood Pkwy, Fort Worth, TX www.archives.gov/federal-register/cfr/ibr- COTP Captain of the Port 76177; telephone (817) 222–5110; email 9- locations.html. II. Background Information and [email protected]. Issued in Fort Worth, Texas, on September (2) For operations conducted under a 14 16, 2016. Regulatory History CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that Scott A. Horn, Efforts to dredge the Shark River have you notify your principal inspector, or Acting Manager, Rotorcraft Directorate, been underway for well over a decade. lacking a principal inspector, the manager of Aircraft Certification Service. After Superstorm Sandy the need to the local flight standards district office or [FR Doc. 2016–23347 Filed 9–30–16; 8:45 am] dredge the river increased significantly certificate holding district office, before BILLING CODE 4910–13–P due to sediment deposited by the storm, operating any aircraft complying with this which impeded navigation within those AD through an AMOC. channels. Funding issues and concerns (g) Additional Information DEPARTMENT OF HOMELAND over dewatering locations (locations to (1) Aerospatiale (now Airbus Helicopters) SECURITY dry the dredged materials) have Flight Manuals SA 341G, Issue 2, dated historically stalled the progress of this December 1974, and SA 342J, Issue 1, dated Coast Guard project. April 27, 1976, which are not incorporated Mobile Dredging and Pumping Co. by reference, contain additional information 33 CFR Part 165 have been awarded the contract to about the subject of this proposed rule. For restore the state channels to allow safe [Docket Number USCG–2016–0824] service information identified in this passage for recreational and commercial proposed rule, contact Airbus Helicopters, RIN 1625–AA00 traffic. The project requires dredging 2701 N. Forum Drive, Grand Prairie, TX approximately 102,000 cubic yards of 75052; telephone (972) 641–0000 or (800) Safety Zone; Dredging, Shark River, NJ 232–0323; fax (972) 641–3775; or at http:// sediment comprised of sand and silt. www.airbushelicopters.com/techpub. You AGENCY: Coast Guard, DHS. The sediment will be hydraulically dredged and piped via a secure welded may review the referenced service ACTION: Temporary final rule; change of pipeline to the selected dewatering information at the FAA, Office of the effective period. Regional Counsel, Southwest Region, 10101 locations.
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The purpose of this rule is to promote Dredging and Pumping Co. Additionally times is prohibited. These coordinates maritime safety and protect vessels from the New Jersey Department of are based on the World Geodetic System the hazards of dredge piping and dredge Transportation, Office of Marine 1984 (WGS 84) horizontal datum operations. The rule will temporarily Resources, will be conducting outreach reference. restrict vessel traffic from transiting a to the local community. Notification of The channel will be open from portion of the Shark River while the safety zone and waterway October 1, 2016, through October 31, dredging operations are being restrictions will be made by the COTP 2016, each week from 9 p.m. to 9 a.m., conducted in the main navigational via marine safety broadcast using VHF– Monday through Thursday. Vessels may channel. FM channel 16 and through the Local transit freely during these times, and The Coast Guard is issuing this Notice to Mariners. vessels are requested to contact the temporary rule without prior notice and dredge via VHF–FM channel 13 or 16 to III. Legal Authority and Need for Rule opportunity to comment pursuant to make satisfactory passing arrangement authority under section 4(a) of the The Coast Guard is issuing this rule and maintain a safe speed when Administrative Procedure Act (APA) (5 under authority in 33 U.S.C. 1231. The transiting the main navigational U.S.C. 553(b)). This provision Captain of the Port, Delaware Bay has channel. authorizes an agency to issue a rule determined that potential hazards are without prior notice and opportunity to associated with dredge piping and V. Regulatory Analyses comment when the agency for good dredge operations from October 1, 2016, We developed this rule after cause finds that those procedures are through October 31, 2016. The rule is considering numerous statutes and ‘‘impracticable, unnecessary, or contrary necessary to promote maritime safety Executive order related to rulemaking. to the public interest.’’ Under 5 U.S.C. and protect vessels from the hazards of Below we summarize our analyses 553(b)(B), the Coast Guard finds that dredge piping and dredge operations. based on a number of these statutes and good cause exists for not publishing a The rule will have an impact to Executive orders, and we discuss First notice of proposed rulemaking (NPRM) vessels transiting through the Shark Amendment rights of protestors. with respect to this rule because the River main navigational channel, from A. Regulatory Planning and Review final details for this event, specifying latitude 40°10′53.2579″ N., longitude the need for the dredging operation to 074°01′52.6231″ W., bounded by the Executive Orders 12866 and 13563 continue from October 1, 2016 through eastern side of the channel and the direct agencies to assess the costs and October 31, 2016, were not received by western side of the channel, north, to benefits of available regulatory the Coast Guard until September 15, latitude 40°11′21.0139″ N., longitude alternatives and, if regulation is 2016. It is impracticable to publish an 074°01′53.1749″ W. as vessels will be necessary, to select regulatory NPRM because we must establish this unable to transit the main navigational approaches that maximize net benefits. safety zone October 1, 2016. Failing to channel during times when dredging Executive Order 13563 emphasizes the extend the effective dates for this rule operations are being conducted. This importance of quantifying both costs pending completion of notice and restriction is necessary to ensure the and benefits, of reducing costs, of comment rulemaking is impracticable safety of life and protect vessel from harmonizing rules, and of promoting and contrary to the public interest dredge piping and dredge operations. flexibility. This rule has not been designated a ‘‘significant regulatory because it would cause a gap in the IV. Discussion of the Rule ability to enforce the needed safety action,’’ under Executive Order 12866. zone. The dredge and dredge piping are On September 1, 2016, dredging Accordingly, it has not been reviewed positioned in the main navigational began on a portion of the Shark River in by the Office of Management and channel in order for the dredging Neptune City, NJ. The Captain of the Budget. company to complete the proper Port, Delaware Bay, determined that the This finding is based on the limited dredging of the main navigational hazards associated with dredge piping size of the zone and duration of the channel. Allowing this event to and dredge operations in the main safety zone. Although the main continue without a safety zone in place navigational channel created the need navigational channel of this portion of would expose mariners and the public for a safety zone to ensure safety of the Shark River will be closed for to unnecessary dangers associated with vessels transiting this portion and for periods of time throughout the dredging dredge piping and dredge operations. workers engaged in dredge piping and operation, there are designated times Therefore, it is imperative that the safety dredging operations of the Shark River. where the channel will be open for zone restricting traffic in this portion of The safety zone closed the main vessel traffic and traffic will be able to the Shark River, in Neptune City, NJ navigational channel on all the flow freely. Vessels will only be affected remain in place. navigable waters on the Shark River 84-hours weekly, from 9 a.m. to 9 p.m. We are issuing this rule, and under 5 from latitude 40°10′53.2579″ N., Monday through Thursday, during U.S.C. 553(d)(3), the Coast Guard finds longitude 074°01′52.6231″ W., bounded October 2016. The safety zone and that good cause exists for making it by the eastern side of the channel and channel closure will be well publicized effective less than 30 days after the western side of the channel, north, to allow mariners to make alternative publication in the Federal Register for to latitude 40°11′21.0139″ N., longitude plans for transiting the affected area. the reasons stated above. The Coast 074°01′53.1749″ W.; during times of Guard expects that there will be an dredging. Dredging for the main B. Impact on Small Entities impact to vessel traffic during times navigational channel was scheduled The Regulatory Flexibility Act of when the navigational channel is from September 1, 2016, through 1980, 5 U.S.C. 601–612, as amended, restricted. However, there will be times September 30, 2016, from 9 a.m. to 9 requires Federal agencies to consider throughout the project where vessel p.m. Monday through Thursday. The the potential impact of regulations on traffic is not restricted and traffic will be Coast Guard is extending the effective small entities during rulemaking. The able to freely flow through the main period for the temporary safety zone term ‘‘small entities’’ comprises small navigational channel. Furthermore, through October 31, 2016. Entry into, businesses, not-for-profit organizations notification of the waterway restrictions transiting, or anchoring within this that are independently owned and will be made by the contractor, Mobile portion of Shark River during these operated and are not dominant in their
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fields, and governmental jurisdictions Also, this rule does not have tribal Protesters are asked to contact the with populations of less than 50,000. implications under Executive Order person listed in the FOR FURTHER The Coast Guard certifies under 5 U.S.C. 13175, Consultation and Coordination INFORMATION CONTACT section to 605(b) that this rule will not have a with Indian Tribal Governments, coordinate protest activities so that your significant economic impact on a because it does not have a substantial message can be received without substantial number of small entities. direct effect on one or more Indian jeopardizing the safety or security of It is expected that there will be some tribes, on the relationship between the people, places or vessels. disruption to the maritime community. Federal Government and Indian tribes, Before the effective period, the Coast or on the distribution of power and List of Subjects in 33 CFR Part 165 Guard, Mobile Dredging and Pumping responsibilities between the Federal Harbors, Marine safety, Navigation Co., and New Jersey Department of Government and Indian tribes. If you (water), Reporting and recordkeeping Transportation’s Office of Marine believe this rule has implications for requirements, Security measures, Resources will issue maritime federalism or Indian tribes, please Waterways. advisories, widely available to users of contact the person listed in the FOR For the reasons discussed in the the Shark River, describing times and FURTHER INFORMATION CONTACT section preamble, the Coast Guard amends 33 dates of waterway closures and above. openings. CFR part 165 as set forth below and Under section 213(a) of the Small E. Unfunded Mandates Reform Act extends the effective period for Business Regulatory Enforcement The Unfunded Mandates Reform Act § 165.T05–0824 from September 30, Fairness Act of 1996 (Pub. L. 104–121), of 1995 (2 U.S.C. 1531–1538) requires 2016, through October 31, 2016. Federal agencies to assess the effects of we want to assist small entities in PART 165—REGULATED NAVIGATION their discretionary regulatory actions. In understanding this rule. If the rule AREAS AND LIMITED ACCESS AREAS would affect your small business, particular, the Act addresses actions organization, or governmental that may result in the expenditure by a ■ 1. The authority citation for part 165 jurisdiction and you have questions State, local, or tribal government, in the continues to read as follows: concerning its provisions or options for aggregate, or by the private sector of compliance, please contact the person $100,000,000 (adjusted for inflation) or Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; FOR FURTHER INFORMATION more in any one year. Though this rule listed in the Department of Homeland Security Delegation CONTACT section. will not result in such an expenditure, No. 0170.1. Small businesses may send comments we do discuss the effects of this rule on the actions of Federal employees elsewhere in this preamble. ■ 2. Effective September 30, 2016, revise who enforce, or otherwise determine § 165.T05–0824 to read as follows: F. Environment compliance with, Federal regulations to We have analyzed this rule under § 165.T05–0824 Safety Zone, Dredging; the Small Business and Agriculture Shark River, NJ. Regulatory Enforcement Ombudsman Department of Homeland Security (a) Regulated areas. The following and the Regional Small Business Management Directive 023–01 and areas are safety zone: All waters from Regulatory Fairness Boards. The Commandant Instruction M16475.lD, latitude 40°10′53.2579″ N., longitude Ombudsman evaluates these actions which guide the Coast Guard in 074°01′52.6231″ W., bounded by the annually and rates each agency’s complying with the National eastern side of the channel and the responsiveness to small business. If you Environmental Policy Act of 1969 (42 western side of the channel, north, to wish to comment on actions by U.S.C. 4321–4370f), and have latitude 40°11′21.0139″ N., longitude employees of the Coast Guard, call 1– determined that this action is one of a 074°01′53.1749″ W., in the Shark River, 888–REG–FAIR (1–888–734–3247). The category of actions that do not in Neptune City, NJ. These coordinates Coast Guard will not retaliate against individually or cumulatively have a are based on the World Geodetic System small entities that question or complain significant effect on the human 1984 (WGS 84) horizontal datum about this rule or any policy or action environment. This rule involves a safety reference. of the Coast Guard. zone encompassing all the waters from latitude 40°10′53.2579″ N., longitude (b) Regulations. The general safety C. Collection of Information 074°01′52.6231″ W., bounded by the zone regulations in § 165.23 apply to the This rule will not call for a new eastern side of the channel and the safety zone created by this temporary collection of information under the western side of the channel, north, to section. Paperwork Reduction Act of 1995 (44 latitude 40°11′21.0139″ N., longitude (1) All vessels and persons are U.S.C. 3501–3520). 074°01′53.1749″ W., in the Shark River, prohibited from entering into or moving in Neptune City, NJ. It is categorically within the safety zone described in D. Federalism and Indian Tribal excluded from further review under paragraph (a) of this section while it is Governments paragraph 34(g) of Figure 2–1 of the subject to enforcement, unless A rule has implications for federalism Commandant Instruction. An authorized by the Captain of the Port, under Executive Order 13132, environmental analysis checklist Delaware Bay, or by his designated Federalism, if it has a substantial direct supporting this determination and a representative. effect on the States, on the relationship Categorical Exclusion Determination are (2) Persons or vessels seeking to enter between the national government and available in the docket where indicated or pass through the safety zone must the States, or on the distribution of under ADDRESSES. We seek any contact the Captain of the Port, power and responsibilities among the comments or information that may lead Delaware Bay, or his designated various levels of government. We have to the discovery of a significant representative to seek permission to analyzed this rule under that Order and environmental impact from this rule. transit the area. The Captain of the Port, have determined that it is consistent Delaware Bay can be contacted at with the fundamental federalism G. Protest Activities telephone number 215–271–4807 or on principles and preemption requirements The Coast Guard respects the First Marine Band Radio VHF Channel 16 described in Executive Order 13132. Amendment rights of protesters. (156.8 MHz).
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(3) Vessels may freely transit this safety of personnel involved in diving would be contrary to public interest portion of the Shark River from 9 p.m. operations. because immediate action is needed to to 9 a.m. Monday through Thursday. DATES: This rule is effective from 7 a.m. respond to the potential safety hazards Vessels are requested to contact the through 11 a.m. on October 3, 2016. associated with diving operations. dredge via VHF–FM channel 13 or 16 to ADDRESSES: To view documents III. Legal Authority and Need for Rule make satisfactory passing arrangement mentioned in this preamble as being and maintain a safe speed when The legal basis for the rule is provided available in the docket, go to http:// transiting the main navigational channel by 33 U.S.C. 1231. On October 3, 2016, www.regulations.gov, type USCG–2016– during times of channel openings. diving operations will be conducted 0899 in the ‘‘SEARCH’’ box and click (5) This section applies to all vessels from the Penn’s Landing pier. Due to the ‘‘SEARCH.’’ Click on Open Docket except those engaged in the following proximity of the pier to the navigable Folder on the line associated with this operations: enforcing laws, servicing channel, and the diving operations, rule. aids to navigation and emergency vessel traffic will be restricted from response vessels. FOR FURTHER INFORMATION CONTACT: If entering the safety zone during the (c) Definitions. As used in this you have questions on this rule, call or designated date and time, which section: email MST1 Thomas Simkins, Sector accounts for staging as well as the actual Captain of the Port Delaware Bay Delaware Bay Waterways Management diving operations. This rule is required means the Commander, U.S. Coast Division, U.S. Coast Guard; telephone in order to safely facilitate diving Guard Sector Delaware Bay, 215–271–4889, email Tom.J.Simkins@ operations and protect both life and Philadelphia, PA. uscg.mil. property on the navigable waterways of Designated representative means any SUPPLEMENTARY INFORMATION: the Delaware River. Coast Guard commissioned, warrant, or IV. Discussion of the Rule petty officer who has been authorized I. Table of Abbreviations by the Captain of the Port Delaware Bay CFR Code of Federal Regulations To mitigate the risks associated with to assist in enforcing the safety zone DHS Department of Homeland Security necessary diving operations, the Captain described in paragraph (a) of this FR Federal Register of the Port, Delaware Bay is establishing section. NPRM Notice of proposed rulemaking a temporary safety zone in the vicinity (d) Enforcement. The U.S. Coast § Section of the diving site. The safety zone will Guard may be assisted by Federal, State U.S.C. United States Code encompass all waters of Delaware River, and local agencies in the patrol and II. Background Information and adjacent to Penn’s Landing, enforcement of the zone. Regulatory History Philadelphia, PA, bounded from (e) Enforcement periods. This section shoreline to shoreline, bounded on the The Coast Guard is issuing this south by a line running east to west will be enforced weekly from 9 a.m. to temporary rule without prior notice and 9 p.m. Monday through Thursday, from points along the shoreline at opportunity to comment pursuant to ° ′ ″ through October 31, 2016. latitude 39 56 31.2 N., longitude authority under section 4(a) of the 075°08′28.1″ W.; thence to latitude Dated: September 27, 2016. Administrative Procedure Act (APA) (5 39°56′29.1″ N., longitude 075°07′56.5″ Benjamin A. Cooper, U.S.C. 553(b)). This provision W., and bounded on the north by the Captain, U.S. Coast Guard, Captain of the authorizes an agency to issue a rule Benjamin Franklin Bridge. The safety Port Delaware Bay. without prior notice and opportunity to zone will be effective and enforced from [FR Doc. 2016–23711 Filed 9–30–16; 8:45 am] comment when the agency for good 7 a.m. through 11 p.m. on Monday, BILLING CODE 9110–04–P cause finds that those procedures are October 3, 2016. Entry into, transiting, ‘‘impracticable, unnecessary, or contrary or anchoring within the safety zone is to the public interest.’’ Under 5 U.S.C. prohibited unless authorized by the DEPARTMENT OF HOMELAND 553(b)(B), the Coast Guard finds that Captain of the Port, Delaware Bay, or his SECURITY good cause exists for not publishing a on-scene representative. The Captain of notice of proposed rulemaking (NPRM) Coast Guard the Port, Delaware Bay, or his on-scene with respect to this rule because a safety representative may be contacted via zone is needed to ensure safety of life VHF channel 16. 33 CFR Part 165 and property for those vessels involved [Docket Number USCG–2016–0899] in the diving operations and those V. Regulatory Analyses persons transiting the Delaware River. We developed this rule after RIN 1625–AA00 In this case, waiting for a comment considering numerous statutes and Safety Zone; Diving Operations, period to run would be contrary to the Executive order related to rulemaking. Delaware River, Philadelphia, PA public interest of protecting life and Below we summarize our analyses property. In addition, publishing an based on a number of these statutes and AGENCY: Coast Guard, DHS. NPRM is impracticable as the requestors Executive orders, and we discuss First ACTION: Temporary final rule. did not provide sufficient notice to the Amendment rights of protestors. Coast Guard relating to the expected SUMMARY: The Coast Guard is date of the diving operations. Therefore, A. Regulatory Planning and Review establishing a temporary safety zone on delay in taking action is both Executive Orders 12866 and 13563 the Delaware River in Philadelphia, PA, impracticable and contrary to public direct agencies to assess the costs and on October 3, 2016, from 7 a.m. through interest. benefits of available regulatory 11 a.m. During the period of We are issuing this rule, and under 5 alternatives and, if regulation is enforcement, the safety zone will U.S.C. 553(d)(3), the Coast Guard finds necessary, to select regulatory restrict vessel traffic on the waters of the that good cause exists for making it approaches that maximize net benefits. Delaware River, adjacent to Penn’s effective less than 30 days after Executive Order 13563 emphasizes the Landing, Philadelphia, PA. The safety publication in the Federal Register. importance of quantifying both costs zone is intended to provide for the Delaying the effective date of this rule and benefits, of reducing costs, of
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harmonizing rules, and of promoting wish to comment on actions by U.S.C. 4321–4370f), and have flexibility. This rule has not been employees of the Coast Guard, call 1– determined that this action is one of a designated a ‘‘significant regulatory 888–REG–FAIR (1–888–734–3247). The category of actions that do not action,’’ under Executive Order 12866. Coast Guard will not retaliate against individually or cumulatively have a Accordingly, it has not been reviewed small entities that question or complain significant effect on the human by the Office of Management and about this rule or any policy or action environment. This rule involves Budget. of the Coast Guard. establishing a temporary safety zone This regulatory action determination lasting four hours that will prohibit C. Collection of Information is based on the size, location, duration, entry into a portion of the Delaware and time-of-year of the safety zone. This This rule will not call for a new River. It is categorically excluded from safety zone will impact the waters collection of information under the further review under paragraph 34(g) of affected by this rule from 7 a.m. through Paperwork Reduction Act of 1995 (44 Figure 2–1 of the Commandant 11 a.m. on October 3, 2016, during a U.S.C. 3501–3520). Instruction. An environmental analysis time of year when vessel traffic is D. Federalism and Indian Tribal checklist supporting this determination normally low. In addition, notifications Governments and a Categorical Exclusion will be made to the maritime Determination are available in the community via marine information A rule has implications for federalism docket where indicated under broadcasts so mariners may adjust their under Executive Order 13132, ADDRESSES. We seek any comments or plans accordingly. Such notifications Federalism, if it has a substantial direct information that may lead to the will be updated as necessary, to keep effect on the States, on the relationship discovery of a significant environmental the maritime community informed of between the national government and impact from this rule. the status of the safety zone. the States, or on the distribution of power and responsibilities among the G. Protest Activities B. Impact on Small Entities various levels of government. We have The Coast Guard respects the First The Regulatory Flexibility Act of analyzed this rule under that Order and Amendment rights of protesters. 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent Protesters are asked to contact the requires Federal agencies to consider with the fundamental federalism person listed in the FOR FURTHER the potential impact of regulations on principles and preemption requirements INFORMATION CONTACT section to small entities during rulemaking. The described in Executive Order 13132. coordinate protest activities so that your term ‘‘small entities’’ comprises small Also, this rule does not have tribal message can be received without businesses, not-for-profit organizations implications under Executive Order jeopardizing the safety or security of that are independently owned and 13175, Consultation and Coordination people, places or vessels. operated and are not dominant in their with Indian Tribal Governments, fields, and governmental jurisdictions because it does not have a substantial List of Subjects in 33 CFR Part 165 with populations of less than 50,000. direct effect on one or more Indian Harbors, Marine safety, Navigation The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the (water), Reporting and recordkeeping 605(b) that this rule will not have a Federal Government and Indian tribes, requirements, Security measures, significant economic impact on a or on the distribution of power and Waterways. substantial number of small entities. responsibilities between the Federal For the reasons discussed in the While some owners or operators of Government and Indian tribes. If you preamble, the Coast Guard amends 33 vessels intending to transit the safety believe this rule has implications for CFR part 165 as follows: zone may be small entities, for the federalism or Indian tribes, please reasons stated in section V.A above, this contact the person listed in the FOR PART 165—REGULATED NAVIGATION rule will not have a significant FURTHER INFORMATION CONTACT section AREAS AND LIMITED ACCESS AREAS economic impact on any vessel owner above. or operator. ■ 1. The authority citation for part 165 Under section 213(a) of the Small E. Unfunded Mandates Reform Act continues to read as follows: Business Regulatory Enforcement The Unfunded Mandates Reform Act Authority: 33 U.S.C. 1231; 50 U.S.C. 191; Fairness Act of 1996 (Pub. L. 104–121), of 1995 (2 U.S.C. 1531–1538) requires 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; we want to assist small entities in Federal agencies to assess the effects of Department of Homeland Security Delegation understanding this rule. If the rule their discretionary regulatory actions. In No. 0170.1. would affect your small business, particular, the Act addresses actions ■ 2. Add § 165.T05–0899 to read as organization, or governmental that may result in the expenditure by a follows: jurisdiction and you have questions State, local, or tribal government, in the concerning its provisions or options for aggregate, or by the private sector of § 165.T05–0899 Safety Zone; Diving compliance, please contact the person $100,000,000 (adjusted for inflation) or Operations, Delaware River, Philadelphia, listed in the FOR FURTHER INFORMATION more in any one year. Though this rule PA. CONTACT section. will not result in such an expenditure, (a) Regulated area. The following area Small businesses may send comments we do discuss the effects of this rule is a safety zone: All waters of Delaware on the actions of Federal employees elsewhere in this preamble. River, adjacent to Penn’s Landing, who enforce, or otherwise determine Philadelphia, PA, bounded from compliance with, Federal regulations to F. Environment shoreline to shoreline, bounded on the the Small Business and Agriculture We have analyzed this rule under south by a line running east to west Regulatory Enforcement Ombudsman Department of Homeland Security from points along the shoreline at and the Regional Small Business Management Directive 023–01 and latitude 39°56′31.2″ N., longitude Regulatory Fairness Boards. The Commandant Instruction M16475.lD, 075°08′28.1″ W.; thence to latitude Ombudsman evaluates these actions which guide the Coast Guard in 39°56′29.1″ N., longitude 075°07′56.5″ annually and rates each agency’s complying with the National W., and bounded on the north by the responsiveness to small business. If you Environmental Policy Act of 1969 (42 Benjamin Franklin Bridge.
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(b) Regulations. The general safety DEPARTMENT OF HOMELAND 553(b)(B), the Coast Guard finds that zone regulations found in § 165.23 SECURITY good cause exists for not publishing a apply to the safety zone created by this notice of proposed rulemaking (NPRM) temporary section, § 165.T05–0899. Coast Guard with respect to this rule because the event sponsor submitted event (1) All vessels and persons are 33 CFR Part 165 application on September 21, 2016. prohibited from entering into or moving [Docket Number USCG–2016–0912] After receiving and fully reviewing the within the safety zone described in event information, circumstances, and paragraph (a) of this section while it is RIN 1625–AA00 exact location, the Coast Guard subject to enforcement, unless determined that delaying this authorized by the Captain of the Port, Safety Zone; Allegheny River, Ohio regulation’s effective date for comment Delaware Bay, or by his designated River, Monongahela River, Pittsburgh, would be contrary to the public interest representative. PA since a safety zone is necessary to (2) Persons or vessels seeking to enter AGENCY: Coast Guard, DHS. protect personnel, vessels, and the marine environment from potential or pass through the safety zone must ACTION: Temporary final rule. contact the Captain of the Port, hazards created from a barge-based Delaware Bay, or his designated SUMMARY: The Coast Guard is fireworks display on the navigable representative to seek permission to establishing a temporary safety zone for waterway. It would be impracticable to transit the area. The Captain of the Port, the University of Pittsburgh Fireworks complete the full NPRM process for this Delaware Bay can be contacted at show, Pittsburgh, PA. The safety zone is safety zone because it needs to be telephone number 215–271–4807 or on needed to protect personnel, vessels, established by October 1, 2016. The fireworks display has been advertised Marine Band Radio VHF Channel 16 and the marine environment from and the local community has prepared (156.8 MHz). potential hazards created from a barge- based fireworks display. Entry of vessels for the event. (3) The Coast Guard vessels enforcing or persons into this zone is prohibited We are issuing this rule, and under 5 this safety zone can be contacted on unless specifically authorized by the U.S.C. 553(d)(3), the Coast Guard finds VHF–FM marine band radio channel 16 Captain of the Port Pittsburgh. that good cause exists for making it (156.8 MHZ). Upon being hailed by a DATES: This rule is effective from 10 effective less than 30 days after U.S. Coast Guard vessel, or other p.m. until 11:30 p.m. on October 1, publication in the Federal Register. Federal, State, or local agency vessel 2016. Delaying this rule would be contrary to operating under the authority of the public interest of ensuring the safety of ADDRESSES: COTP Delaware Bay, by siren, radio, To view documents spectators and vessels during the event. mentioned in this preamble as being flashing light, or other means, the Immediate action is necessary to available in the docket, go to http:// operator of a vessel shall proceed as prevent possible loss of life and www.regulations.gov, type USCG–2016– property during the hazards created by directed. The COTP Delaware Bay and 0912 in the ‘‘SEARCH’’ box and click his designated representatives can be a barge-based fireworks display near ‘‘SEARCH.’’ Click on Open Docket and over the navigable waterway. contacted at telephone number 215– Folder on the line associated with this 271–4807. rule. III. Legal Authority and Need for Rule (c) Definitions. As used in this FOR FURTHER INFORMATION CONTACT: If The Coast Guard is issuing this rule section: you have questions on this rule, call or under authority in 33 U.S.C. 1231. The Captain of the Port Delaware Bay email Petty Officer Charles Morris, Captain of the Port Pittsburgh (COTP) means the Commander, U.S. Coast Marine Safety Unit Pittsburgh, U.S. has determined that a safety zone is Guard Sector Delaware Bay, Coast Guard; at telephone 412–221– needed on October 1, 2016. This rule is Philadelphia, PA. 0807, email [email protected]. needed to protect personnel, vessels, SUPPLEMENTARY INFORMATION: and the marine environment from Designated representative means any potential hazards created from a barge- Coast Guard commissioned, warrant, or I. Table of Abbreviations based fireworks display. petty officer who has been authorized CFR Code of Federal Regulations IV. Discussion of the Rule by the Captain of the Port Delaware Bay DHS Department of Homeland Security to assist in enforcing the safety zone FR Federal Register This rule establishes a safety zone described in paragraph (a) of this NPRM Notice of proposed rulemaking from 10 p.m. to 11:30 p.m. on October section. § Section 1, 2016. The safety zone will cover all U.S.C. United States Code navigable waters on the Allegheny River (d) Enforcement. The U.S. Coast mile 0.0–0.25, Ohio River mile 0.0–0.1, Guard may be assisted by Federal, State II. Background Information and Regulatory History Monongahela River mile 0.0–0.1. The and local agencies in the patrol and duration of the safety zone is intended enforcement of the zone. The Coast Guard is issuing this to protect personnel, vessels, and the (e) Enforcement period. This section temporary rule without prior notice and marine environment from potential will be enforced from 7 a.m. through 11 opportunity to comment pursuant to hazards created from a barge-based a.m. on October 3, 2016. authority under section 4(a) of the firework display. No vessel or person Administrative Procedure Act (APA) (5 will be permitted to enter the safety Benjamin A. Cooper, U.S.C. 553(b)). This provision zone without obtaining permission from Captain, U.S. Coast Guard, Captain of the authorizes an agency to issue a rule the COTP or a designated Port Delaware Bay. without prior notice and opportunity to representative. [FR Doc. 2016–23782 Filed 9–30–16; 8:45 am] comment when the agency for good V. Regulatory Analyses BILLING CODE 9110–04–P cause finds that those procedures are ‘‘impracticable, unnecessary, or contrary We developed this rule after to the public interest.’’ Under 5 U.S.C. considering numerous statutes and
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Executive orders related to rulemaking. compliance, please contact the person $100,000,000 (adjusted for inflation) or Below we summarize our analyses listed in the FOR FURTHER INFORMATION more in any one year. Though this rule based on a number of these statutes and CONTACT section. will not result in such expenditure, we Executive orders, and we discuss First Small businesses may send comments do discuss the effects of this rule Amendment rights of protestors. on the actions of Federal employees elsewhere in this preamble. who enforce, or otherwise determine A. Regulatory Planning and Review compliance with, Federal regulations to F. Environment Executive Orders 12866 and 13563 the Small Business and Agriculture We have analyzed this rule under direct agencies to assess the costs and Regulatory Enforcement Ombudsman Department of Homeland Security benefits of available regulatory and the Regional Small Business Management Directive 023–01 and alternatives and, if regulation is Regulatory Fairness Boards. The Commandant Instruction M16475.lD, necessary, to select regulatory Ombudsman evaluates these actions which guide the Coast Guard in approaches that maximize net benefits. annually and rates each agency’s complying with the National Executive Order 13563 emphasizes the responsiveness to small business. If you Environmental Policy Act of 1969 (42 importance of quantifying both costs wish to comment on actions by U.S.C. 4321–4370f), and have and benefits, of reducing costs, of employees of the Coast Guard, call 1– determined that this action is one of a harmonizing rules, and of promoting 888–REG–FAIR (1–888–734–3247). The category of actions that do not flexibility. This rule has not been Coast Guard will not retaliate against individually or cumulatively have a designated a ‘‘significant regulatory small entities that question or complain significant effect on the human action,’’ under Executive Order 12866. about this rule or any policy or action environment. This rule involves a safety Accordingly, it has not been reviewed of the Coast Guard. zone lasting one hour that will prohibit by the Office of Management and C. Collection of Information entry to the Allegheny River mile 0.0– Budget. 0.25, Ohio River mile 0.0–0.1, This regulatory action determination This rule will not call for a new Monongahela River mile 0.0–0.1 during is based on the size, location, and collection of information under the the barge-based firework event. It is duration of the safety zone. This safety Paperwork Reduction Act of 1995 (44 categorically excluded from further zone impacts a small portion of the U.S.C. 3501–3520). review under paragraph 34 (g) of Figure waterway for a limited duration of one 2–1 of the Commandant Instruction. An hour in the evening. Vessel traffic will D. Federalism and Indian Tribal Governments environmental analysis checklist be informed about the safety zone supporting this determination and a A rule has implications for federalism through local notices to mariners. Categorical Exclusion Determination are under Executive Order 13132, Moreover, the Coast Guard will issue available in the docket where indicated Federalism, if it has a substantial direct broadcast notices to mariners via VHF– under ADDRESSES. We seek any effect on the States, on the relationship FM marine channel 16 about the zone comments or information that may lead between the national government and and the rule allows vessels to seek to the discovery of a significant the States, or on the distribution of permission to transit the zone. environmental impact from this rule. power and responsibilities among the B. Impact on Small Entities various levels of government. We have G. Protest Activities The Regulatory Flexibility Act of analyzed this rule under that Order and The Coast Guard respects the First 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent Amendment rights of protesters. requires Federal agencies to consider with the fundamental federalism Protesters are asked to contact the the potential impact of regulations on principles and preemption requirements person listed in the FOR FURTHER small entities during rulemaking. The described in Executive Order 13132. INFORMATION CONTACT section to term ‘‘small entities’’ comprises small Also, this rule does not have tribal coordinate protest activities so that your businesses, not-for-profit organizations implications under Executive Order message can be received without that are independently owned and 13175, Consultation and Coordination jeopardizing the safety or security of operated and are not dominant in their with Indian Tribal Governments, people, places or vessels. fields, and governmental jurisdictions because it does not have a substantial with populations of less than 50,000. direct effect on one or more Indian List of Subjects in 33 CFR Part 165 The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the Harbors, Marine safety, Navigation 605(b) that this rule will not have a Federal Government and Indian tribes, (water), Reporting and recordkeeping significant economic impact on a or on the distribution of power and requirements, Security measures, substantial number of small entities. responsibilities between the Federal Waterways. While some owners or operators of Government and Indian tribes. If you vessels intending to transit the safety believe this rule has implications for For the reasons discussed in the zone may be small entities, for the federalism or Indian tribes, please preamble, the Coast Guard amends 33 reasons stated in section V.A. above, contact the person listed in the FOR CFR part 165 as follows: this rule will not have a significant FURTHER INFORMATION CONTACT section PART 165—REGULATED NAVIGATION economic impact on any vessel owner above. or operator. AREAS AND LIMITED ACCESS AREAS E. Unfunded Mandates Reform Act Under section 213(a) of the Small ■ Business Regulatory Enforcement The Unfunded Mandates Reform Act 1. The authority citation for part 165 Fairness Act of 1996 (Pub. L. 104–121), of 1995 (2 U.S.C. 1531–1538) requires continues to read as follows: we want to assist small entities in Federal agencies to assess the effects of Authority: 33 U.S.C. 1231; 50 U.S.C. 191; understanding this rule. If the rule their discretionary regulatory actions. In 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; would affect your small business, particular, the Act addresses actions Department of Homeland Security Delegation organization, or governmental that may result in the expenditure by a No. 0170.1. jurisdiction and you have questions State, local, or tribal government, in the ■ 2. Add § 165.T08–0912 to read as concerning its provisions or options for aggregate, or by the private sector of follows:
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§ 165.T08–0912 Safety Zone; Allegheny Dock Anniversary Celebration publication in the Federal Register. River, Ohio River and Monogahela River, Fireworks Display. This safety zone is Delaying the effective date of this rule Pittsburgh, PA. necessary to protect spectators from the would be contrary to public interest as (a) Location. The following area is a hazards associated with the fireworks it would inhibit the Coast Guard’s safety zone: Pittsburgh Steelers display. ability to protect spectator and vessels Fireworks; Allegheny River mile 0.0– DATES: This rule is effective from 6:30 from the hazards associated with the 0.25, Ohio River mile 0.0–0.1, p.m. through 7:30 p.m. on October 1, event. Monongahela River mile 0.0–0.1, 2016. Pittsburgh, PA III. Legal Authority and Need for Rule (b) Enforcement. This safety zone ADDRESSES: To view documents The Coast Guard is issuing this rule described in (a) above will be enforced mentioned in this preamble as being under authority in 33 U.S.C. 1231. The from 10 p.m. until 11:30 p.m. on available in the docket, go to http:// Captain of the Port Duluth (COTP) has October 1, 2016. www.regulations.gov, type USCG–2016– determined that potential hazards (c) Regulations. (1) In accordance with 0918 in the ‘‘SEARCH’’ box and click associated with fireworks displays the general regulations in § 165.23 of ‘‘SEARCH.’’ Click on Open Docket starting after 6:30 p.m. on October 1, this part, entry into this zone is Folder on the line associated with this 2016 will be a safety concern for anyone prohibited unless authorized by the rule. within a 420-foot radius of the launch Captain of the Port Pittsburgh (COTP) or FOR FURTHER INFORMATION CONTACT: If site. The likely combination of a designated representative. you have questions on this rule, call or recreational vessels, darkness (2) Persons or vessels requiring entry email Lieutenant Junior Grade John punctuated by bright flashes of light, into or passage through the zone must Mack, Waterways management, MSU and fireworks debris falling into the request permission from the COTP or a Duluth, Coast Guard; telephone 218– water presents risks of collisions which designated representative. The COTP 725–3818, email [email protected]. could result in serious injuries or representative may be contacted at 412– SUPPLEMENTARY INFORMATION: fatalities. This rule is needed to protect 221–0807. personnel, vessels, and the marine (3) All persons and vessels shall I. Table of Abbreviations environment in the navigable waters comply with the instructions of the CFR Code of Federal Regulations within the safety zone during the COTP or their designated representative. DHS Department of Homeland Security fireworks display. Designated COTP representatives FR Federal Register IV. Discussion of the Rule include United States Coast Guard NPRM Notice of proposed rulemaking commissioned, warrant, and petty § Section This rule establishes a safety zone officers. U.S.C. United States Code from 6:30 p.m. through 7:30 p.m. (d) Information broadcasts. The COTP II. Background Information and October 1, 2016. The safety zone will or a designated representative will Regulatory History cover all navigable waters within an inform the public through broadcast area bounded by a circle with a 420-foot The Coast Guard is issuing this notices to mariners of the enforcement radius of the fireworks display temporary rule without prior notice and period for the safety zone as well as any launching site located in Ashland, WI at opportunity to comment pursuant to changes in the dates and times of coordinates 46°36′02″ N., 090°52′49″ W. authority under section 4(a) of the enforcement. The duration of the zone is intended to Administrative Procedure Act (APA) (5 protect personnel, vessels, and the L. McClain, Jr., U.S.C. 553(b)). This provision marine environment in these navigable Commander, U.S. Coast Guard, Captain of authorizes an agency to issue a rule waters during the fireworks display. No the Port Pittsburgh. without prior notice and opportunity to vessel or person will be permitted to [FR Doc. 2016–23783 Filed 9–30–16; 8:45 am] comment when the agency for good enter the safety zone without obtaining BILLING CODE 9110–04–P cause finds that those procedures are permission from the COTP or a ‘‘impracticable, unnecessary, or contrary designated representative. to the public interest.’’ Under 5 U.S.C. DEPARTMENT OF HOMELAND 553(b)(B), the Coast Guard finds that V. Regulatory Analyses SECURITY good cause exists for not publishing a We developed this rule after notice of proposed rulemaking (NPRM) considering numerous statutes and Coast Guard with respect to this rule because doing Executive order related to rulemaking. so would be impracticable and contrary Below we summarize our analyses 33 CFR Part 165 to the public interest. The event sponsor based on a number of these statutes and [Docket Number USCG–2016–0918] notified the Coast Guard on September Executive orders, and we discuss First 26, 2016 that the fireworks display will Amendment rights of protestors. RIN 1625–AA00 be held on October 1, 2016, accordingly A. Regulatory Planning and Review Safety Zone; 100th Ore Dock there is insufficient time to Executive Orders 12866 and 13563 Anniversary Celebration; accommodate the comment period. direct agencies to assess the costs and Chequamegon Bay, Ashland, WI Thus, delaying the effective date of this rule to wait for the comment period to benefits of available regulatory AGENCY: Coast Guard, DHS. run would be both impracticable and alternatives and, if regulation is ACTION: Temporary final rule. contrary to public interest because it necessary, to select regulatory would inhibit the Coast Guard’s ability approaches that maximize net benefits. SUMMARY: The Coast Guard is to protect spectators and vessels from Executive Order 13563 emphasizes the establishing a safety zone within the hazards associated with the event. importance of quantifying both costs Chequamegon Bay in Ashland, WI. This We are issuing this rule, and under 5 and benefits, of reducing costs, of safety zone is intended to restrict U.S.C. 553(d)(3), the Coast Guard finds harmonizing rules, and of promoting vessels from specified waters in that good cause exists for making it flexibility. This rule has not been Chequamegon Bay during the 100th Ore effective less than 30 days after designated a ‘‘significant regulatory
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action,’’ under Executive Order 12866. small entities that question or complain significant effect on the human Accordingly, it has not been reviewed about this rule or any policy or action environment. This rule involves a safety by the Office of Management and of the Coast Guard. zone lasting no more than 1 hour that Budget. will prohibit entry within a 420-foot C. Collection of Information This regulatory action determination radius from where a fireworks display is based on the size, location, duration, This rule will not call for a new will be conducted. It is categorically and time-of-year of the safety zone. collection of information under the excluded from further review under Vessel traffic will be able to safely Paperwork Reduction Act of 1995 (44 paragraph 34(g) of Figure 2–1 of the transit around this safety zone which U.S.C. 3501–3520). Commandant Instruction. An will impact a small designated area of D. Federalism and Indian Tribal environmental analysis checklist Superior Bay in Superior, WI for 1 hour Governments supporting this determination and a and during a time of year when Categorical Exclusion Determination are commercial vessel traffic is normally A rule has implications for federalism available in the docket where indicated low. Moreover, the Coast Guard will under Executive Order 13132, under ADDRESSES. We seek any issue Broadcast Notice to Mariners via Federalism, if it has a substantial direct comments or information that may lead VHF–FM marine channel 16 about the effect on the States, on the relationship to the discovery of a significant zone and the rule allows vessels to seek between the national government and environmental impact from this rule. permission to enter the zone. the States, or on the distribution of power and responsibilities among the G. Protest Activities B. Impact on Small Entities various levels of government. We have The Coast Guard respects the First The Regulatory Flexibility Act of analyzed this rule under that Order and Amendment rights of protesters. 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent Protesters are asked to contact the requires Federal agencies to consider with the fundamental federalism person listed in the FOR FURTHER the potential impact of regulations on principles and preemption requirements INFORMATION CONTACT section to small entities during rulemaking. The described in Executive Order 13132. coordinate protest activities so that your term ‘‘small entities’’ comprises small Also, this rule does not have tribal message can be received without businesses, not-for-profit organizations implications under Executive Order jeopardizing the safety or security of that are independently owned and 13175, Consultation and Coordination people, places or vessels. operated and are not dominant in their with Indian Tribal Governments, fields, and governmental jurisdictions because it does not have a substantial List of Subjects in 33 CFR Part 165 with populations of less than 50,000. direct effect on one or more Indian Harbors, Marine safety, Navigation The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the (water), Reporting and record keeping 605(b) that this rule will not have a Federal Government and Indian tribes, requirements, Security measures, significant economic impact on a or on the distribution of power and Waterways. substantial number of small entities. responsibilities between the Federal For the reasons discussed in the While some owners or operators of Government and Indian tribes. If you preamble, the Coast Guard amends 33 vessels intending to transit the safety believe this rule has implications for CFR part 165 as follows: zone may be small entities, for the federalism or Indian tribes, please reasons stated in section V.A above, this contact the person listed in the FOR PART 165—REGULATED NAVIGATION rule will not have a significant FURTHER INFORMATION CONTACT section AREAS AND LIMITED ACCESS AREAS economic impact on any vessel owner above. or operator. ■ 1. The authority citation for Part 165 Under section 213(a) of the Small E. Unfunded Mandates Reform Act continues to read as follows: Business Regulatory Enforcement The Unfunded Mandates Reform Act Authority: 33 U.S.C. 1231; 50 U.S.C. 191; Fairness Act of 1996 (Pub. L. 104–121), of 1995 (2 U.S.C. 1531–1538) requires 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; we want to assist small entities in Federal agencies to assess the effects of Department of Homeland Security Delegation understanding this rule. If the rule their discretionary regulatory actions. In No. 0170.1. would affect your small business, particular, the Act addresses actions ■ 2. Add § 165.T09–0918 to read as organization, or governmental that may result in the expenditure by a follows: jurisdiction and you have questions State, local, or tribal government, in the concerning its provisions or options for aggregate, or by the private sector of § 165.T09–0834 Safety zone; 100th Ore compliance, please contact the person $100,000,000 (adjusted for inflation) or Dock Anniversary Celebration Fireworks listed in the FOR FURTHER INFORMATION more in any one year. Though this rule Display, Chequamegon Bay, Ashland, WI. CONTACT section. will not result in such an expenditure, (a) Location. All waters of Small businesses may send comments we do discuss the effects of this rule Chequamegon Bay within an area on the actions of Federal employees elsewhere in this preamble. bounded by a circle with a 420-foot who enforce, or otherwise determine radius at position 46°36′02″ N., compliance with, Federal regulations to F. Environment 090°52′49″ W. the Small Business and Agriculture We have analyzed this rule under (b) Effective period. This safety zone Regulatory Enforcement Ombudsman Department of Homeland Security is effective from 6:30 p.m. through 7:30 and the Regional Small Business Management Directive 023–01 and p.m. on October 1, 2016. Regulatory Fairness Boards. The Commandant Instruction M16475.lD, (c) Regulations. Ombudsman evaluates these actions which guide the Coast Guard in (1) In accordance with the general annually and rates each agency’s complying with the National regulations in § 165.23 of this part, entry responsiveness to small business. If you Environmental Policy Act of 1969 (42 into, transiting, or anchoring within this wish to comment on actions by U.S.C. 4321–4370f), and have safety zone is prohibited unless employees of the Coast Guard, call 1– determined that this action is one of a authorized by the Captain of the Port 888–REG–FAIR (1–888–734–3247). The category of actions that do not Duluth, or his designated on-scene Coast Guard will not retaliate against individually or cumulatively have a representative.
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(2) This safety zone is closed to all DATES: This direct final rule will be incorporate Federal permitting vessel traffic, except as may be effective December 2, 2016, without requirements to address new permitted by the Captain of the Port further notice, unless EPA receives construction projects that emit 100,000 Duluth or his designated on-scene adverse comment by November 2, 2016. tons per year or more of greenhouse representative. If EPA receives adverse comment, we gases, as well as clarifying some rule (3) The ‘‘on-scene representative’’ of will publish a timely withdrawal of the text. the Captain of the Port is any Coast direct final rule in the Federal Register In the third request dated August 31, Guard commissioned, warrant, or petty informing the public that the rule will 2012, the State of Missouri asked that officer who has been designated by the not take effect. EPA amend the SIP to include recently Captain of the Port to act on his behalf. ADDRESSES: Submit your comments, promulgated revisions to the state rule The on-scene representative of the identified by Docket ID No. EPA–R07– 10 CSR 10–6.065 in order to defer for a Captain of the Port will be aboard either OAR–2016–0529, to http:// period of three years the application of a Coast Guard or Coast Guard Auxiliary www.regulations.gov. Follow the online Title V permitting to carbon dioxide vessel. The Captain of the Port or his instructions for submitting comments. emissions from biogenic sources. In designated on-scene representative may Once submitted, comments cannot be addition to the biogenic deferral be contacted via VHF Channel 16. edited or removed from Regulations.gov. language, Missouri included non- (4) Vessel operators desiring to enter EPA may publish any comment received substantive edits and minor or operate within the safety zone shall to its public docket. Do not submit administrative rule revisions in this contact the Captain of the Port Duluth electronically any information you submission. For example, Missouri or his on-scene representative to obtain consider to be Confidential Business relabeled 10 CSR 10–6.065(3)(A)5 to 10 permission to do so. Vessel operators Information (CBI) or other information CSR 10–6.065(3)(B), and reworded the given permission to enter or operate in whose disclosure is restricted by statute. following in that same subsection ‘‘40 the safety zone must comply with all Multimedia submissions (audio, video, CFR part 63, subpart EEE’’ to ‘‘40 CFR directions given to them by the Captain etc.) must be accompanied by a written 63, subpart EEE.’’ of the Port Duluth or his on-scene comment. The written comment is On July 14, 2016, the State of representative. considered the official comment and Missouri modified the 2011 and 2012 Dated: September 27, 2016. should include discussion of all points requests in a letter to EPA. The letter E.E. Williams, you wish to make. EPA will generally addresses the court directed revisions to Commander, U.S. Coast Guard, Captain of not consider comments or comment EPA’s GHG permitting provisions. the Port Duluth. contents located outside of the primary Specifically, in the July 14, 2016, letter, [FR Doc. 2016–23712 Filed 9–30–16; 8:45 am] submission (i.e., on the web, cloud, or Missouri identified regulatory language BILLING CODE 9110–04–P other file sharing system). For of the earlier submittals that it was additional submission methods, the full withdrawing its request to EPA to EPA public comment policy, approve into the SIP and notified EPA ENVIRONMENTAL PROTECTION information about CBI or multimedia that the state will update its rules in the AGENCY submissions, and general guidance on future to remove those provisions. The making effective comments, please visit State explained that these changes to 40 CFR Parts 52 and 70 http://www2.epa.gov/dockets/ their earlier submittals are a result of [EPA–R07–OAR–2016–0529; FRL–9953–34– commenting-epa-dockets. court decisions by the Supreme Court Region 7] FOR FURTHER INFORMATION CONTACT: (Utility Air Regulatory Group v. EPA, Larry Gonzalez at (913) 551–7041, or by June 23, 2014) and the U.S. Court of Approval of Missouri’s Air Quality email at [email protected]. Appeals for the District of Columbia Implementation Plans and Operating SUPPLEMENTARY INFORMATION: (Coalition for Responsible Regulation, Permits Program; Greenhouse Gas Throughout this document ‘‘we,’’ ‘‘us,’’ Inc. et al. v. EPA, April 10, 2015), in Tailoring Rule and Non-Substantive and ‘‘our’’ refer to EPA. This section which the courts vacated certain Definition and Language Changes provides additional information by permitting requirements that were included in Missouri’s August 8, 2011, AGENCY: Environmental Protection addressing the following: submission. In the July 2016 submittal, Agency (EPA). I. What is being addressed in this document? the state clarified this earlier request to ACTION: II. Have the requirements for approval of a Direct final rule. EPA as follows: SIP revision been met? SUMMARY: Environmental Protection III. What action is EPA taking? (1) Missouri requested that in 10 CSR Agency (EPA) is taking direct final 10–6.060(8)(A), not include as part of action to approve revisions to the I. What is being addressed in this the Missouri SIP the phrase ‘‘including Missouri State Implementation Plan document? the revision published at 75 FR 31606– (SIP) and the 40 CFR part 70 operating EPA is approving revisions to the 07 (effective August 2, 2010).’’ Instead permits program. EPA is approving Missouri SIP and Operating Permits subsection (8)(A) will read ‘‘. . . revisions to two Missouri rule(s) Program requested from four separate promulgated as of July 1, 2009 are entitled, ‘‘Construction Permits requests. In the first request dated hereby incorporated . . .’’ Required,’’ and ‘‘Operating Permits.’’ August 8, 2011, the State of Missouri (2) Missouri requested that in 10 CSR This approval action is consistent with asked that EPA amend the SIP and the 10–6.6065(2)(A)2., not include the the July 12, 2013, U.S. Court of Appeals state’s operating permits program to words ‘‘Except that:’’ and do not include for the District of Columbia and the June include rule revisions that incorporate the subparagraphs (2)(A)2.A. and 23, 2014, U.S. Supreme Court actions Federal permitting requirements for (2)(A)2.B. as part of the Missouri SIP. regarding Greenhouse Gas Prevention of greenhouse gas emissions under state In addition, Missouri requested that Significant Deterioration and Title V rule 10 CSR 10–6.065. EPA only include into the Missouri SIP Permitting. This action makes non- In the second request, also dated the non-substantive wording substantive changes to definitions, and August 8, 2011, the State of Missouri clarifications submitted on August 31, language clarifications. asked that EPA amend the SIP to 2012, without the biogenic deferral
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wording revisions because the biogenic next update to the SIP compilation.1 methods, under Executive Order 12898 deferrals had expired. EPA has made, and will continue to (59 FR 7629, February 16, 1994). These requested and remaining make, these documents generally The SIP is not approved to apply on revisions to Missouri’s earlier submittals available electronically through any Indian reservation land or in any are consistent with the changes in www.regulations.gov and at the other area where EPA or an Indian tribe Federal permitting requirements that appropriate EPA office (see the has demonstrated that a tribe has were necessitated by the two earlier ADDRESSES section of this preamble for jurisdiction. In those areas of Indian mentioned court decisions. These more information). country, the rule does not have tribal changes will make Missouri’s GHG Statutory and Executive Order Reviews implications and will not impose permitting requirements included in the substantial direct costs on tribal SIP consistent with current Federal Under the CAA, the Administrator is governments or preempt tribal law as requirements. required to approve a SIP submission specified by Executive Order 13175 (65 II. Have the requirements for approval that complies with the provisions of the FR 67249, November 9, 2000). of a SIP revision been met? Act and applicable Federal regulations. The Congressional Review Act, 5 42 U.S.C. 7410(k); 40 CFR 52.02(a). U.S.C. 801 et seq., as added by the Small The state submissions have met the Thus, in reviewing SIP submissions, public notice requirements of SIP Business Regulatory Enforcement EPA’s role is to approve state choices, Fairness Act of 1996, generally provides submissions in accordance with 40 CFR provided that they meet the criteria of 51.102. The submissions also satisfy the that before a rule may take effect, the the CAA. Accordingly, this action agency promulgating the rule must completeness criteria of 40 CFR part merely approves state law as meeting appendix V. In addition, the revisions submit a rule report, which includes a Federal requirements and does not copy of the rule, to each House of the meet the substantive SIP requirements impose additional requirements beyond of the CAA, including section 110 and Congress and to the Comptroller General those imposed by state law. For that of the United States. EPA will submit a implementing regulations. reason, this action: • report containing this action and other III. What action is EPA taking? Is not a significant regulatory action required information to the U.S. Senate, subject to review by the Office of EPA is approving the request to the U.S. House of Representatives, and Management and Budget under amend the Missouri SIP and operating the Comptroller General of the United Executive Orders 12866 (58 FR 51735, permits program by approving the States prior to publication of the rule in October 4, 1993) and 13563 (76 FR 3821, State’s request to amend 10 CSR 10– the Federal Register. A major rule January 21, 2011); 6.060, and 10 CSR 10–6.065 to align the cannot take effect until 60 days after it • Does not impose an information State’s rule with EPA’s GHG Tailoring is published in the Federal Register. collection burden under the provisions rule, streamline the public notice This action is not a ‘‘major rule’’ as of the Paperwork Reduction Act (44 procedures to align them with similar defined by 5 U.S.C. 804(2). U.S.C. 3501 et seq.); procedures in the EPA rules, and allows • Is certified as not having a Under section 307(b)(1) of the CAA, the flexibility to publish notices on the significant economic impact on a petitions for judicial review of this internet. substantial number of small entities action must be filed in the United States We are processing this action as a Court of Appeals for the appropriate direct final action because the revisions under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); circuit by December 2, 2016. Filing a make routine changes to the existing petition for reconsideration by the • Does not contain any unfunded rules which are noncontroversial. Administrator of this final rule does not mandate or significantly or uniquely Therefore, we do not anticipate any affect the finality of this action for the affect small governments, as described adverse comments. Please note that if purposes of judicial review nor does it in the Unfunded Mandates Reform Act EPA receives adverse comment on part extend the time within which a petition of 1995 (Pub. L. 104–4); of this rule and if that part can be for judicial review may be filed, and • Does not have Federalism severed from the remainder of the rule, shall not postpone the effectiveness of implications as specified in Executive EPA may adopt as final those parts of such rule or action. This action may not Order 13132 (64 FR 43255, August 10, the rule that are not the subject of an be challenged later in proceedings to 1999); adverse comment. enforce its requirements. (See section • Is not an economically significant 307(b)(2).) Incorporation by Reference regulatory action based on health or In this rule, EPA is finalizing safety risks subject to Executive Order List of Subjects 13045 (62 FR 19885, April 23, 1997); regulatory text that includes 40 CFR Part 52 incorporation by reference. In • Is not a significant regulatory action accordance with requirements of 1 CFR subject to Executive Order 13211 (66 FR Environmental protection, Air 51.5, EPA is finalizing the incorporation 28355, May 22, 2001); pollution control, Carbon monoxide, by reference of the Missouri Regulations • Is not subject to requirements of Incorporation by reference, described in the direct final Section 12(d) of the National Intergovernmental relations, Lead, amendments to 40 CFR part 52 set forth Technology Transfer and Advancement Nitrogen dioxide, Ozone, Particulate below. Therefore, these materials have Act of 1995 (15 U.S.C. 272 note) because matter, Reporting and recordkeeping been approved by EPA for inclusion in application of those requirements would requirements, Sulfur oxides, Volatile the State implementation plan, have be inconsistent with the CAA; and organic compounds. • Does not provide EPA with the been incorporated by reference by EPA 40 CFR Part 70 into that plan, are fully Federally discretionary authority to address, as enforceable under sections 110 and 113 appropriate, disproportionate human Environmental protection, of the CAA as of the effective date of the health or environmental effects, using Administrative practice and procedure, final rulemaking of EPA’s approval, and practicable and legally permissible Air pollution control, Intergovernmental will be incorporated by reference by the relations, Operating permits, Reporting Director of the Federal Register in the 1 62 FR 27968 (May 22, 1997). and recordkeeping requirements.
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Dated: September 21, 2016. PART 52—APPROVAL AND Subpart AA—Missouri Mark Hague, PROMULGATION OF ■ Regional Administrator, Region 7. IMPLEMENTATION PLANS 2. Section 52.1320(c) is amended by revising entries 10 CSR 10–6.060 and 10 For the reasons stated in the ■ 1. The authority citation for part 52 CSR 10–6.065 under subheading preamble, EPA amends 40 CFR parts 52 continues to read as follows: ‘‘Chapter 6’’ to read as follows: and 70 as set forth below: Authority: 42 U.S.C. 7401 et seq. § 52.1320 Identification of plan. * * * * * (c) * * *
EPA-APPROVED MISSOURI REGULATIONS
State EPA Missouri Title effective approval Explanation citation date date
Missouri Department of Natural Resources
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Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri
10–6.060 ...... Construction Permits 08/30/11 10/3/16 [Insert Fed- Provisions of the 2010 PM2.5 PSD—Increments, SILs and Required. eral Register cita- SMCs rule (75 FR 64865, October 20, 2010) relating to SILs tion]. and SMCs that were affected by the January 22, 2013 U.S. Court of Appeals decision are not SIP approved. Provisions of the 2002 NSR reform rule relating to the Clean Unit Exemption, Pollution Control Projects, and exemption from recordkeeping provisions for certain sources using the actual-to-projected-actual emissions projections test are not SIP approved. In addition, we have not approved Missouri’s rule incorporating EPA’s 2007 revision of the definition of ‘‘chemical processing plants’’ (the ‘‘Ethanol Rule,’’ 72 FR 24060 (May 1, 2007) or EPA’s 2008 ‘‘fugitive emissions rule,’’ 73 FR 77882 (Decem- ber 19, 2008). Although exemptions previously listed in 10 CSR 10–6.060 have been transferred to 10 CSR 10–6.061, the Federally- approved SIP continues to include the following exemption, ‘‘Livestock and livestock handling systems from which the only potential contaminant is odorous gas.’’ Section 9, pertaining to hazardous air pollutants, is not SIP ap- proved. EPA is not approving in subsection (8)(A) the phrase ‘‘including the revision published at 75 FR 31606–07 (effective August 2, 2010).’’
******* 10–6.065 ...... Operating Permits ... 08/30/11 10/3/16 [Insert Fed- EPA has not approved Section (4) as part of the SIP. eral Register cita- EPA is not approving in paragraph (2)(A)2 the words, ‘‘except tion]. that’’ and is not approving subparagraphs (2)(A)2.A. and (2)(A)2.B.
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* * * * * Appendix A to Part 70—Approval subparagraphs (2) (A)2.A. and (2)(A)2.B. This Status of State and Local Operating approval is effective December 2, 2016. PART 70—STATE OPERATING PERMIT Permits Programs * * * * * PROGRAMS [FR Doc. 2016–23599 Filed 9–30–16; 8:45 am] * * * * * ■ BILLING CODE 6560–50–P 3. The authority citation for part 70 Missouri continues to read as follows: * * * * * Authority: 42 U.S.C. 7401, et seq. (ff) The Missouri Department of Natural Resources submitted revisions to CSR on ■ 4. Appendix A to part 70 is amended April 28, 2011. We are approving this rule by adding paragraph (ff) under Missouri except for Section (4) which relates to the to read as follows: State Basic Operating permits, and we are not approving in paragraph (2)(A)2 the words, ‘‘except that’’ and are not approving
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ENVIRONMENTAL PROTECTION official comment and should include disclosed except in accordance with AGENCY discussion of all points you wish to procedures set forth in 40 CFR part 2. make. The EPA will generally not B. Tips for preparing your comments. 40 CFR Part 62 consider comments or comment When submitting comments, remember contents located outside of the primary to: [EPA–R08–OAR–2016–0197; FRL–9953–13– • Region 8] submission (i.e., on the web, cloud, or Identify the rulemaking by docket other file sharing system). For number and other identifying Approval and Promulgation of State additional submission methods, the full information (subject heading, Federal Plans for Designated Facilities and EPA public comment policy, Register volume, date, and page Pollutants, State of Wyoming; Control information about CBI or multimedia number); of Emissions From Existing Hospital/ submissions, and general guidance on • Follow directions and organize your Medical/Infectious Waste Incinerator making effective comments, please visit comments; Units, Plan Revision • Explain why you agree or disagree; http://www2.epa.gov/dockets/ • commenting-epa-dockets. Suggest alternatives and substitute AGENCY: Environmental Protection language for your requested changes; Agency (EPA). FOR FURTHER INFORMATION CONTACT: • Describe any assumptions and ACTION: Direct final rule. Kendra Morrison, Air Program, U.S. provide any technical information and/ Environmental Protection Agency, or data that you used; SUMMARY: The Environmental Protection Region 8, 1595 Wynkoop Street, Denver, • If you estimate potential costs or Agency (EPA) is taking direct final Colorado 80202–1129, (303) 312–6145, burdens, explain how you arrived at action to approve a revision to the [email protected]. your estimate in sufficient detail to Wyoming hospital/medical/infectious SUPPLEMENTARY INFORMATION: allow for it to be reproduced; waste incinerator (HMIWI) Section • Provide specific examples to I. Why is EPA using a direct final rule? 111(d)/129 plan (the ‘‘plan’’). The plan illustrate your concerns, and suggest was submitted to the EPA to fulfill The EPA is publishing this rule alternatives; requirements of the Clean Air Act (CAA) without prior proposal because we view • Explain your views as clearly as and to implement and enforce the this as a noncontroversial amendment possible, avoiding the use of profanity emissions guidelines (EG) for existing and anticipate no adverse comments. or personal threats; and, hospital/medical/infectious waste However, in the ‘‘Proposed Rules’’ incinerators (HMIWI). The plan section of today’s Federal Register III. Background establishes emission limits; operator publication, we are publishing a The EPA’s statutory authority for the training and qualification requirements; separate document that will serve as the regulation of new and existing solid performance testing, monitoring, and proposal to approve the revision if waste incineration units is outlined in inspection requirements; and adverse comments are received on this the CAA sections 111 and 129. Section requirements for a waste management direct final rule. We will not institute a 129 of the CAA is specific to solid waste plan and reporting and recordkeeping second comment period on this action. combustion, and requires the EPA to requirements for existing hospital/ Any parties interested in commenting establish performance standards for medical/infectious waste incinerator must do so at this time. For further each category of solid waste units as specified in the October 6, information about commenting on this incineration units. Section 111 of the 2009, amendments to the federal EG and rule, see the ADDRESSES section of this Act gives EPA the statutory authority to New Source Performance Standards document. promulgate NSPS, applicable to new (NSPS), 40 CFR part 60, subparts Ce and If the EPA receives adverse comment, units, and/or EG for existing units. EG Ec, respectively. we will publish a timely withdrawal in are implemented and enforced through DATES: This direct final rule is effective the Federal Register informing the either an EPA-approved state plan or a on December 2, 2016 without further public that this direct final will not take promulgated federal plan. Section notice, unless the EPA receives adverse effect. We would address all public 129(b)(2) requires states to submit to the written comments by November 2, 2016. comments in any subsequent final rule EPA for approval state plans that If adverse comments are received, the based on the proposed rule. implement and enforce the promulgated EPA will publish a timely withdrawal of EG. Section 129(b)(3) requires the EPA the direct final rule in the Federal II. What should I consider as I prepare to promulgate a federal plan (FP) within Register informing the public that the my comments for the EPA? two years from the date on which the rule will not take effect. A. Submitting Confidential Business EG, or amendment, was promulgated. ADDRESSES: Submit your comments, Information (CBI). Do not submit CBI to The FP is applicable to any affected identified by Docket ID No. EPA–R08– EPA through http://www.regulations.gov facility if the state has failed to receive OAR–2016–0197 at http:// or email. Clearly mark the part or all of the EPA approval of the state plan, or www.regulations.gov. Follow the online the information that you claim to be revision. The FP acts as an enforcement instructions for submitting comments. CBI. For CBI information on a disk or place holder until the state submits and Once submitted, comments cannot be CD ROM that you mail to the EPA, mark receives the EPA approval of its plan. edited or removed from Regulations.gov. the outside of the disk or CD ROM as State plan submittals must be consistent The EPA may publish any comment CBI and then identify electronically with the relevant emissions guidelines, received to its public docket. Do not within the disk or CD ROM the specific in this instance 40 CFR part 60, subpart submit electronically any information information that is claimed as CBI. In Ce, and the requirements of 40 CFR part you consider to be Confidential addition to one complete version of the 60, subpart B and part 62, subpart A. Business Information (CBI) or other comment that includes information Section 129 of the CAA regulates the information whose disclosure is claimed as CBI, a copy of the comment following substances or mixtures: restricted by statute. Multimedia that does not contain the information Organics (dioxins/furans), carbon submissions (audio, video, etc.) must be claimed as CBI must be submitted for monoxide, metals (cadmium, lead, and accompanied by a written comment. inclusion in the public docket. mercury), acid gases (hydrogen chloride, The written comment is considered the Information so marked will not be sulfur dioxide, and nitrogen oxides) and
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particulate matter (which includes This approval is based on the EPA’s of the Paperwork Reduction Act (44 opacity). The initial Wyoming plan for review of the plan, discussed above. U.S.C. 3501 et seq.); HMIWI units was approved by the EPA This plan revision approval does not • Is certified as not having a on August 21, 2000 (65 FR 38732). The negate or void any of the initial August significant economic impact in a plan approval is codified in 40 CFR part 21, 2000 plan approval requirements, substantial number of small entities 62, subpart ZZ. On May 13, 2015, the including compliance dates for any under the Regulatory Flexibility Act (5 Wyoming Department of Environmental affected facility. The scope of this plan U.S.C. 601 et seq.); Quality (DEQ) submitted to the EPA a revision approval is limited to the • Does not contain any unfunded revised Section 111(d)/129 plan for provisions of 40 CFR parts 60 and 62 for mandate or significantly or uniquely HMIWI units. The DEQ made minor existing HMIWI units, as referenced in affect small governments, as described edits to the plan at the request of the the EG, subpart Ce, and the related in the Unfunded Mandates Reform Act EPA and the DEQ revised and of 1995 (Pub. L. 104–4); NSPS, subpart Ec, as amended. • resubmitted its submission to the EPA The EPA is publishing this rule Does not have federalism on November 24, 2015. The submitted without prior proposal because we view implications as specified in Executive plan revision was in response to the this as a noncontroversial amendment Order 13132 (64 FR 43255, August 10, October 6, 2009 amendments to federal and anticipate no adverse comments. 1999); • Is not an economically significant EG and NSPS requirements for HMIWI However, in the Proposed Rules section regulatory action based on health or units, 40 CFR part 60, subparts Ce and of today’s Federal Register publication, safety risks subject to Executive Order Ec, respectively (74 FR 51367). This we are publishing a separate document rulemaking action will supersede the 13045(62 FR 19885, April 23, 1997); that will serve as the proposal to • Is not a significant regulatory action EPA’s August 21, 2000 (65 FR 38732) approve the revision if adverse approval of Wyoming’s initial plan. subject to Executive Order 13211 (66 FR comments are filed. This rule will be 28355, May 22, 2001); IV. Summary of Wyoming’s HMIWI effective December 2, 2016 without • Is not subject to requirements of Plan Revision further notice unless we receive adverse Section 12(d) of the National comments by November 2, 2016. If we The EPA has reviewed the Wyoming Technology Transfer and Advancement receive adverse comments, we will HMIWI plan revision submittal in the Act of 1995 (15 U.S.C. 272 note)because publish a timely withdrawal in the context of the requirements of 40 CFR application of those requirements would Federal Register informing the public part 60, subparts B and Ce, as amended, be inconsistent with the Clean Air Act; that the rule will not take effect. We will and part 62, subpart A. The plan and address all public comments in a contained (1) a demonstration of • Does not provide the EPA with the Wyoming’s legal authority to implement subsequent final rule based on the discretionary authority to address, as the plan; (2) identification and a copy of proposed rule. We will not institute a appropriate, disproportionate human the state’s adoption of Subpart Ce into second comment period on this action. health or environmental effects, using rule Wyoming Air Quality Standards Any parties interested in commenting practicable and legally permissible and Regulations (WAQSR) Chapter 4, must do so at this time. Please note that methods, under Executive Order 12898 Section 5, and Chapter 5 as the if we receive adverse comment on an (59 FR 7629, February 16, 1994). mechanism to enforce the emissions amendment, paragraph, or section of The state plan is not approved to guidelines; (3) an inventory of one this rule and if that provision may be apply on any Indian reservation land or known designated facility and an severed from the remainder of the rule, in any other area where EPA or an inventory of its air emissions; (4) we may adopt as final those provisions Indian tribe has demonstrated that a emission limits that are as protective as of the rule that are not the subject of an tribe has jurisdiction. In those areas of the emissions guidelines; (5) a final adverse comment. Indian Country, the rule does not have compliance date no later than October 6, VI. Statutory and Executive Orders tribal implications and will not impose 2014; (6) testing, monitoring, inspection, Review substantial direct costs on tribal operator training and qualification, governments or preempt tribal law as waste management plan, and Under the Clean Air Act, the specified by Executive Order 13175 (65 recordkeeping and reporting Administrator is required to approve a FR 67249, November 9, 2000). requirements for the designated Section 111(d)/129 plan submission that The Congressional Review Act, 5 facilities; (7) documentation of public complies with the provisions of the Act U.S.C. 801 et seq, as added by the Small hearing(s) on the plan; (8) provisions to and applicable federal regulations 42 Business Regulatory Enforcement submit annual state progress reports to U.S.C. 7410(k); 40 CFR 52.02(a). Thus, Fairness Act of 1996, generally provides the EPA; and (9) a commitment to the in reviewing Section 111(d)/129 plan that before a rule may take effect, the EPA that all Title V operating permits, submissions, the EPA’s role is to agency promulgating the rule must modifications, and renewals for approve state actions, provided that submit a rule report, which includes a designated facilities will specify all they meet the criteria of the Clean Air copy of the rule, to each House of the applicable state requirements and 40 Act. Accordingly, this direct final action Congress and to the Comptroller General CFR part 62, subpart ZZ. The submitted merely approves some state law as of the United States. The EPA will plan revision meets all requirements of meeting federal requirements and does submit a report containing this rule and 40 CFR part 60, subparts B and Ce, as not impose additional requirements other required information to the U.S. amended, and part 62, subpart A. beyond those imposed by state law. For Senate, the U.S. House of that reason, this action: Representatives, and the Comptroller V. What action is the EPA taking today? • Is not a ‘‘significant regulatory General of the United States prior to The EPA is approving the Wyoming action’’ subject to review by the Office publication of the rule in the Federal HMIWI Section 111(d)/129 plan of Management and Budget under Register. A major rule cannot take effect revision that reflects amendments made Executive Order 12866 (58 FR 51735, until 60 days after it is published in the to 40 CFR part 60, subparts Ce and Ec. October 4, 1993); Federal Register. This action is not a Therefore, the EPA is amending 40 CFR • Does not impose an information ‘‘major rule’’ as defined by 5 U.S.C. part 62, subpart ZZ to reflect this action. collection burden under the provisions 804(2).
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Under section 307(b)(1) of the Clean § 62.12611 Identification of sources. available at http://www.regulations.gov Air Act, petitions for judicial review of The plan applies to each individual or at the Office of Pesticide Programs this action must be filed in the United hospital/medical/infectious waste Regulatory Public Docket (OPP Docket) States Court of Appeals for the incinerator: in the Environmental Protection Agency appropriate circuit by December 2, (a) For which construction was Docket Center (EPA/DC), West William 2016. Filing a petition for commenced on or before June 20, 1996, Jefferson Clinton Bldg., Rm. 3334, 1301 reconsideration by the Administrator of or for which modification was Constitution Ave. NW., Washington, DC this final rule does not affect the finality commenced on or before March 16, 20460–0001. The Public Reading Room of this action for the purposes of judicial 1998. is open from 8:30 a.m. to 4:30 p.m., review nor does it extend the time (b) For which construction was Monday through Friday, excluding legal within which a petition for judicial commenced after June 20, 1996 but no holidays. The telephone number for the review may be filed, and shall not later than December 1, 2008, or for Public Reading Room is (202) 566–1744, postpone the effectiveness of such rule which modification is commenced after and the telephone number for the OPP or action. Parties with objections to this March 16, 1998 but no later than April Docket is (703) 305–5805. Please review direct final rule are encouraged to file a 6, 2010. the visitor instructions and additional comment in response to the parallel ■ 4. Section 62.12612 is revised to read information about the docket available notice of proposed rulemaking for this as follows: at http://www.epa.gov/dockets. action published in the proposed rules FOR FURTHER INFORMATION CONTACT: section of today’s Federal Register, § 62.12612 Effective date. Robert McNally, Biopesticides and rather than file an immediate petition The effective date of the plan for Pollution Prevention Division (7511P), for judicial review of this direct final hospital/medical/infectious waste Office of Pesticide Programs, rule, so that the EPA can withdraw this incinerators is December 2, 2016. Environmental Protection Agency, 1200 direct final rule and address the Editorial Note: This document was Pennsylvania Ave. NW., Washington, comment in the proposed rulemaking. received for publication by the Office of the DC 20460–0001; main telephone This action may not be challenged later Federal Register on September 26, 2016. number: (703) 305–7090; email address: in proceedings to enforce its [FR Doc. 2016–23584 Filed 9–30–16; 8:45 am] [email protected]. requirements. (See section 307(b)(2).) BILLING CODE 6560–50–P SUPPLEMENTARY INFORMATION: List of Subjects in 40 CFR Part 62 I. General Information Environmental protection, Air ENVIRONMENTAL PROTECTION A. Does this action apply to me? pollution control, Solid waste AGENCY You may be potentially affected by incineration, Hospital/medical/ this action if you are an agricultural infectious waste incineration. 40 CFR Part 180 producer, food manufacturer, or Authority: 42 U.S.C. 7401 et seq. [EPA–HQ–OPP–2014–0920; FRL–9947–92] pesticide manufacturer. The following Dated: May 17, 2016. list of North American Industrial Bacillus Mycoides Isolate J; Exemption Classification System (NAICS) codes is Shaun L. McGrath, From the Requirement of a Tolerance Regional Administrator, Region 8. not intended to be exhaustive, but rather AGENCY: Environmental Protection provides a guide to help readers 40 CFR part 62, subpart ZZ, is Agency (EPA). determine whether this document amended as follows: applies to them. Potentially affected ACTION: Final rule. entities may include: PART 62—APPROVAL AND • SUMMARY: This regulation establishes an Crop production (NAICS code 111). PROMULGATION OF STATE PLANS • exemption from the requirement of a Animal production (NAICS code FOR DESIGNATED FACILITIES AND tolerance for residues of Bacillus 112). POLLUTANTS • mycoides isolate J in or on all Food manufacturing (NAICS code agricultural commodities when used in 311). ■ • 1. The authority citation for part 62 accordance with label directions and Pesticide manufacturing (NAICS continues to read as follows: good agricultural practices. Certis USA code 32532). Authority: 42 U.S.C. 7401 et seq. LLC submitted a petition to EPA under B. How can I get electronic access to the Federal Food, Drug, and Cosmetic other related information? Subpart ZZ—Wyoming Act (FFDCA), requesting an exemption You may access a frequently updated from the requirement of a tolerance. electronic version of 40 CFR part 180 ■ 2. Section 62.12610 is revised to read This regulation eliminates the need to through the Government Printing as follows: establish a maximum permissible level Office’s e-CFR site at http:// for residues of Bacillus mycoides isolate § 62.12610 Identification of plan. www.ecfr.gov/cgi-bin/text- J under FFDCA. Section 111(d)/129 Plan for Hospital/ idx?&c=ecfr&tpl=/ecfrbrowse/Title40/ DATES: This regulation is effective 40tab_02.tpl. Medical/Infectious Waste Incinerators October 3, 2016. Objections and and the associated State regulation, requests for hearings must be received C. How can I file an objection or hearing Chapter 4, Section 5, and Chapter 5 of on or before December 2, 2016, and request? the Wyoming Air Quality Standards and must be filed in accordance with the Under FFDCA section 408(g), 21 Regulations, submitted by the State on instructions provided in 40 CFR part U.S.C. 346a(g), any person may file an September 7, 1999 and November 9, 178 (see also Unit I.C. of the objection to any aspect of this regulation 1999, and as amended on May 13, 2015 SUPPLEMENTARY INFORMATION). and may also request a hearing on those and November 24, 2015. ADDRESSES: The docket for this action, objections. You must file your objection ■ 3. Section 62.12611 is revised to read identified by docket identification (ID) or request a hearing on this regulation as follows: number EPA–HQ–OPP–2014–0920, is in accordance with the instructions
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provided in 40 CFR part 178. To ensure In addition, the Agency is removing mycoides isolate J. Therefore, an proper receipt by EPA, you must the existing paragraph contained in exemption from the requirement of a identify docket ID number EPA–HQ– section 180.1269 because that tolerance is established for residues of OPP–2014–0920 in the subject line on exemption from the requirement of a Bacillus mycoides isolate J in or on all the first page of your submission. All tolerance for Bacillus mycoides isolate J agricultural commodities when used in objections and requests for a hearing residues has expired. accordance with label directions and must be in writing, and must be good agricultural practices. III. Final Rule received by the Hearing Clerk on or B. Analytical Enforcement Methodology before December 2, 2016. Addresses for A. EPA’s Safety Determination An analytical method is not required mail and hand delivery of objections Section 408(c)(2)(A)(i) of FFDCA and hearing requests are provided in 40 for enforcement purposes for the allows EPA to establish an exemption reasons contained in the May 9, 2016, CFR 178.25(b). from the requirement for a tolerance (the In addition to filing an objection or document entitled ‘‘Federal Food, Drug, legal limit for a pesticide chemical hearing request with the Hearing Clerk and Cosmetic Act (FFDCA) residue in or on a food) only if EPA as described in 40 CFR part 178, please Considerations for Bacillus mycoides determines that the exemption is ‘‘safe.’’ submit a copy of the filing (excluding isolate J’’ and because EPA is Section 408(c)(2)(A)(ii) of FFDCA any Confidential Business Information establishing an exemption from the defines ‘‘safe’’ to mean that ‘‘there is a (CBI)) for inclusion in the public docket. requirement of a tolerance without any reasonable certainty that no harm will Information not marked confidential numerical limitation. result from aggregate exposure to the pursuant to 40 CFR part 2 may be pesticide chemical residue, including IV. Statutory and Executive Order disclosed publicly by EPA without prior Reviews notice. Submit the non-CBI copy of your all anticipated dietary exposures and all objection or hearing request, identified other exposures for which there is This action establishes a tolerance by docket ID number EPA–HQ–OPP– reliable information.’’ This includes exemption under FFDCA section 408(d) 2014–0920, by one of the following exposure through drinking water and in in response to a petition submitted to methods: residential settings but does not include EPA. The Office of Management and • Federal eRulemaking Portal: http:// occupational exposure. Pursuant to Budget (OMB) has exempted these types www.regulations.gov. Follow the online FFDCA section 408(c)(2)(B), in of actions from review under Executive instructions for submitting comments. establishing or maintaining in effect an Order 12866, entitled ‘‘Regulatory Do not submit electronically any exemption from the requirement of a Planning and Review’’ (58 FR 51735, information you consider to be CBI or tolerance, EPA must take into account October 4, 1993). Because this action other information whose disclosure is the factors set forth in FFDCA section has been exempted from review under restricted by statute. 408(b)(2)(C), which require EPA to give Executive Order 12866, this action is • Mail: OPP Docket, Environmental special consideration to exposure of not subject to Executive Order 13211, Protection Agency Docket Center (EPA/ infants and children to the pesticide entitled ‘‘Actions Concerning DC), (28221T), 1200 Pennsylvania Ave. chemical residue in establishing a Regulations That Significantly Affect NW., Washington, DC 20460–0001. tolerance or tolerance exemption, and to Energy Supply, Distribution, or Use’’ (66 • Hand Delivery: To make special ‘‘ensure that there is a reasonable FR 28355, May 22, 2001), or Executive arrangements for hand delivery or certainty that no harm will result to Order 13045, entitled ‘‘Protection of delivery of boxed information, please infants and children from aggregate Children from Environmental Health follow the instructions at http:// exposure to the pesticide chemical Risks and Safety Risks’’ (62 FR 19885, www.epa.gov/dockets/contacts.html. residue . . . .’’ Additionally, FFDCA April 23, 1997). This action does not Additional instructions on commenting section 408(b)(2)(D) requires that EPA contain any information collections or visiting the docket, along with more consider ‘‘available information subject to OMB approval under the information about dockets generally, is concerning the cumulative effects of [a Paperwork Reduction Act (PRA), 44 available at http://www.epa.gov/ particular pesticide’s] . . . residues and U.S.C. 3501 et seq., nor does it require dockets. other substances that have a common any special considerations under mechanism of toxicity.’’ Executive Order 12898, entitled II. Background EPA evaluated the available toxicity ‘‘Federal Actions to Address In the Federal Register of January 28, and exposure data on Bacillus mycoides Environmental Justice in Minority 2015 (80 FR 4525) (FRL–9921–55), EPA isolate J and considered its validity, Populations and Low-Income issued a document pursuant to FFDCA completeness, and reliability, as well as Populations’’ (59 FR 7629, February 16, section 408(d)(3), 21 U.S.C. 346a(d)(3), the relationship of this information to 1994). announcing the filing of a pesticide human risk. A full explanation of the Since tolerances and exemptions that tolerance petition (PP 4F8252) by Certis data upon which EPA relied and its risk are established on the basis of a petition USA LLC, 9145 Guilford Rd., Suite 175, assessment based on that data can be under FFDCA section 408(d), such as Columbia, MD 21046. The petition found within the May 9, 2016, the tolerance exemption in this action, requested that 40 CFR part 180 be document entitled ‘‘Federal Food, Drug, do not require the issuance of a amended by establishing an exemption and Cosmetic Act (FFDCA) proposed rule, the requirements of the from the requirement of a tolerance for Considerations for Bacillus mycoides Regulatory Flexibility Act (RFA) (5 residues of Bacillus mycoides isolate J, isolate J.’’ This document, as well as U.S.C. 601 et seq.) do not apply. in or on all agricultural commodities. other relevant information, is available This action directly regulates growers, That document referenced a summary of in the docket for this action as described food processors, food handlers, and food the petition prepared by the petitioner under ADDRESSES. Based upon its retailers, not States or tribes. As a result, Certis USA LLC, which is available in evaluation, EPA concludes that there is this action does not alter the the docket via http:// a reasonable certainty that no harm will relationships or distribution of power www.regulations.gov. There were no result to the U.S. population, including and responsibilities established by comments received in response to the infants and children, from aggregate Congress in the preemption provisions notice of filing. exposure to residues of Bacillus of FFDCA section 408(n)(4). As such,
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EPA has determined that this action will all agricultural commodities when used September 20, 2016, OMB approved, for not have a substantial direct effect on in accordance with label directions and a period of three years, the information States or tribal governments, on the good agricultural practices. collection requirements contained in the relationship between the national [FR Doc. 2016–23608 Filed 9–30–16; 8:45 am] Commission’s Order, FCC 16–38, government and the States or tribal BILLING CODE 6560–50–P published at 81 FR 33025, May 24, governments, or on the distribution of 2016. The OMB Control Number is power and responsibilities among the 3060–0819. The Commission publishes various levels of government or between FEDERAL COMMUNICATIONS this notice as an announcement of the the Federal Government and Indian COMMISSION effective date rules requiring OMB tribes. Thus, EPA has determined that approval. If you have any comments on Executive Order 13132, entitled 47 CFR Part 54 the burden estimates listed below, or ‘‘Federalism’’ (64 FR 43255, August 10, how the Commission can improve the 1999), and Executive Order 13175, [WC Docket Nos. 11–42, 09–197 and 10– collections and reduce any burdens 90; FCC 16–38] entitled ‘‘Consultation and Coordination caused thereby, please contact Nicole with Indian Tribal Governments’’ (65 FR Lifeline and Link Up Reform and Ongele, Federal Communications 67249, November 9, 2000), do not apply Modernization, Telecommunications Commission, Room 1–A620, 445 12th to this action. In addition, this action Carriers Eligible for Universal Service Street SW., Washington, DC 20554. does not impose any enforceable duty or Support, Connect America Fund Please include the OMB Control contain any unfunded mandate as Number, 3060–0819, in your described under Title II of the Unfunded AGENCY: Federal Communications correspondence. The Commission will Mandates Reform Act (UMRA) (2 U.S.C. Commission. also accept your comments via email at 1501 et seq.). ACTION: Final rule; announcement of [email protected]. This action does not involve any effective date. To request material in accessible technical standards that would require formation for people with disabilities EPA’s consideration of voluntary SUMMARY: In this document, the Federal (Braille, large print, electronic files, consensus standards pursuant to section Communications Commission audio format), send an email to fcc504@ 12(d) of the National Technology (Commission) announces that the Office fcc.gov or call the Consumer and Transfer and Advancement Act of Management and Budget (OMB) has Governmental Affairs Bureau at (202) (NTTAA) (15 U.S.C. 272 note). approved, for a period of three years, the 418–0530 (voice), (202) 418–0432 information collection requirements (TTY). V. Congressional Review Act associated with certain of the provision Pursuant to the Congressional Review of the rules adopted as part of the Synopsis Act (5 U.S.C. 801 et seq.), EPA will Commission’s Third Further Notice of As required by the Paperwork submit a report containing this rule and Proposed Rulemaking, Order on Reduction Act of 1995 (44 U.S.C. 3507), other required information to the U.S. Reconsideration, and Further Report the FCC is notifying the public that it Senate, the U.S. House of and Order, (Lifeline Third Reform received OMB approval on September Representatives, and the Comptroller Order). This notice is consistent with 20, 2016, for the information collection General of the United States prior to the Lifeline Third Reform Order, which requirements contained in the publication of the rule in the Federal stated that the Commission would Commission’s rules in 47 CFR part 54. Register. This action is not a ‘‘major publish a document in the Federal Under 5 CFR part 1320, an agency rule’’ as defined by 5 U.S.C. 804(2). Register announcing OMB approval and may not conduct or sponsor a collection the effective date of those rules. of information unless it displays a List of Subjects in 40 CFR Part 180 DATES: The rule amendments to 47 CFR current, valid OMB Control Number. Environmental protection, 54.202(a)(6), (d), and (e), and 54.205(c) No person shall be subject to any Administrative practice and procedure, published at 81 FR 33025, May 24, penalty for failing to comply with a Agricultural commodities, Pesticides 2016, will become effective October 3, collection of information subject to the and pests, Reporting and recordkeeping 2016. The rule amendments to 47 CFR Paperwork Reduction Act that does not requirements. 54.101, 54.401(a)(2), (b), (c), (f), display a current, valid OMB Control Dated: September 15, 2016. 54.403(a), 54.405(e)(1), (e)(3) through Number. The OMB Control Number is Yu-Ting Guilaran, (e)(5), 54.407(a), (c)(2), (d), 54.408, 3060–0819. The foregoing notice is required by Acting Director, Office of Pesticide Programs. 54.409(a)(2), 54.410(b) through (e), (g) through (h), 54.411, 54.416(a)(3), the Paperwork Reduction Act of 1995, Therefore, 40 CFR chapter I is 54.420(b), and 54.422(b)(3) will become Public Law 104–13, October 1, 1995, amended as follows: effective December 2, 2016 . The rule and 44 U.S.C. 3507. The total annual reporting burdens PART 180—[AMENDED] amendments to 47 CFR 54.410(f) will become effective January 1, 2017. and costs for the respondents are as ■ 1. The authority citation for part 180 The rule amendments to 47 CFR follows: OMB Control Number: 3060–0819. continues to read as follows: 54.400(l) are applicable October 3, 2016. The rule amendments to 47 CFR OMB Approval Date: 9/20/2016. Authority: 21 U.S.C. 321(q), 346a and 371. OMB Expiration Date: 9/30/2019. 54.400(f), (j), and (m) through (o) are Title: Lifeline and Link Up Reform ■ 2. Revise § 180.1269 to read as applicable December 2, 2016. follows: and Modernization, FOR FURTHER INFORMATION CONTACT: Telecommunications Carriers Eligible § 180.1269 Bacillus mycoides isolate J; Christian Hoefly, Wireline Competition for Universal Service Support, Connect exemption from the requirement of a Bureau, Telecommunications Access America Fund. tolerance. Policy Division at (202) 418–3607 or at Form Number: FCC Forms 497, 481 & An exemption from the requirement [email protected]. 555. of a tolerance is established for residues SUPPLEMENTARY INFORMATION: This Type of Review: Revision of a of Bacillus mycoides isolate J in or on document announces that, on currently approved collection.
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Respondents: Individuals or there are impacts under the Privacy Act. information collection, the Commission households and business or other for- The FCC’s system of records notice seeks to revise the information profit. (SORN), FCC/WCB–1, ‘‘Lifeline collection to comply with the Number of Respondents and Program.’’ The Commission will use the Commission’s new rules, adopted in the Responses: 21,162,260 respondents; information contained in FCC/WCB–1 Lifeline Third Reform Order, regarding 23,956,240 responses. to cover the personally identifiable phasing out support for mobile voice Estimated Time per Response: 0.0167 information (PII) that is required as part over the next six years, requiring hours–250 hours. of the Lifeline Program (‘‘Lifeline’’). As Eligible Telecommunications Carriers Frequency of Response: Annual and required by the Privacy Act of 1974, as (ETCs) to certify compliance with the on occasion reporting requirements and amended, 5 U.S.C. 552a, the new minimum service requirements, third party disclosure requirement. Commission also published a SORN, creating a new ETC designation for Obligation To Respond: Required to FCC/WCB–1 ‘‘Lifeline Program’’ in the Lifeline Broadband Providers (LBPs), obtain or retain benefits. Statutory Federal Register on December 6, 2013 updating the obligations to advertise authority is contained in Section 1 (78 FR 73535). Lifeline offerings, modifying the non- through 4, 201 through 205, 254, 303(r) Also, respondents may request and 403 of the Communications Act of usage de-enrollment requirements materials or information submitted to 1934, as amended, 47 U.S.C. 151 within the program, moving to rolling the Commission or to the Universal through 154, 201 through 205, 254, annual subscriber recertification, and Service Administrative Company 303(r) and 403, and section 706 of the streamlining the first-year ETC audit (USAC or Administrator) be withheld Telecommunications Act of 1996, 47 requirements. Also, the Commission from public inspection under 47 CFR U.S.C. 1302. seeks to update the number of Total Annual Burden: 13,484,412 0.459 of the FCC’s rules. We note that respondents for all the existing hours. USAC must preserve the confidentiality information collection requirements, Total Annual Cost: $937,500. of all data obtained from respondents; thus increasing the total burden hours Privacy Act Impact Assessment: Yes. must not use the data except for for some requirements and decreasing The Commission completed a Privacy purposes of administering the universal the total burden hours for other Impact Assessment (PIA) for some of the service programs; and must not disclose requirements. Finally, the Commission information collection requirements data in company-specific form unless seeks to revise the FCC Forms 555, 497, contain in this collection. The PIA was directed to do so by the Commission. and 481 to incorporate the new published in the Federal Register at 78 Needs and Uses: On April 27, 2016, Commission rules and modify the FR 73535 on December 6, 2013. The PIA the Commission released the Lifeline filings for FCC Forms 555 and 497 to may be reviewed at: http://www.fcc.gov/ Third Reform Order modernizing its include detailed field descriptions. _ _ omd/privacyact/Privacy Impact low-income universal service support Federal Communications Commission. Assessment.html. mechanisms. This revised information Nature and Extent of Confidentiality: collection addresses requirements to Marlene H. Dortch, Some of the requirements contained in carry out the programs to which the Secretary, Office of Secretary. this information collection does affect Commission committed itself in the [FR Doc. 2016–23450 Filed 9–30–16; 8:45 am] individuals or households, and thus, Lifeline Third Reform Order. Under this BILLING CODE 6712–01–P
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Proposed Rules Federal Register Vol. 81, No. 191
Monday, October 3, 2016
This section of the FEDERAL REGISTER 0121. Please submit one signed original and provide a more workable contains notices to the public of the proposed paper copy. interpretation of certain statutory issuance of rules and regulations. The This notice of proposed rulemaking provisions in light of DOE’s experience purpose of these notices is to give interested and any comments that DOE receives with operation of the Title XVII persons an opportunity to participate in the will be made available on the program. rule making prior to the adoption of the final regulations.gov Web site at: http:// rules. www.regulations.gov. You also may II. Discussion of Proposed Rule obtain copies of comments by Section 1702(a) of Title XVII directs DEPARTMENT OF ENERGY contacting Mr. Westergard using the the Secretary to make guarantees on the information below. terms and conditions determined by the 10 CFR Part 609 FOR FURTHER INFORMATION CONTACT: Secretary, after consultation with the Mark S. Westergard, Loan Programs Secretary of the Treasury, and in RIN 1901–AB38 Office, 1000 Independence Avenue SW., accordance with the prescriptions set Washington, DC 20585–0121, (202) 287– forth in section 1702. This provision Loan Guarantees for Projects That 5621, email: authorizes the Secretary to establish the Employ Innovative Technologies LPO.ProposedRuleComments@ loan guarantee program and to hq.doe.gov. determine the terms and conditions of AGENCY: Loan Programs Office, SUPPLEMENTARY INFORMATION: individual loan guarantees, after Department of Energy. consultation with the Secretary of ACTION: Notice of proposed rulemaking. I. Introduction and Background Treasury, subject to the limitations in II. Discussion of Proposed Rule paragraphs (b) through (k) of section III. Public Comment Procedures SUMMARY: The Department of Energy 1702. Pursuant to direction provided in (DOE) proposes to amend the IV. Regulatory Review V. Approval of the Office of the Secretary Public Law 110–5 (Feb. 15, 2007) DOE regulations implementing the loan promulgated regulations to implement guarantee provisions in Title XVII of the I. Introduction and Background Title XVII which are currently found at Energy Policy Act of 2005 (Title XVII or Section 1703 (section 1703) 10 CFR part 609 (the ‘‘Title XVII Rule’’). the Act). The proposal is intended to authorizes the Secretary of Energy See 74 FR 63544 (Dec. 4, 2009). (The increase clarity and transparency, (Secretary) to make loan guarantees for proposed rule was issued on Aug 7, reduce paperwork, and provide a more projects that avoid, reduce, or sequester 2009 (74 FR 39569).) The Title XVII workable interpretation of certain air pollutants or anthropogenic Rule addresses matters such as (1) the statutory provisions in light of DOE’s emissions of greenhouse gases. Such manner in which proposed projects are experience with the Title XVII program. projects must also employ new or vetted, (2) precisely which project costs DATES: Comments on this proposed rule significantly improved technologies as are eligible for financing, (3) the must be postmarked no later than compared to commercial technologies in adequacy and character of equity capital November 2, 2016. service in the United States at the time required from sponsors, and (4) what ADDRESSES: You may submit comments, the guarantee is issued. The two types of co-financing and subordination identified by RIN 1901–AB38, using any principal goals of section 1703 are to arrangements would be acceptable to of the following methods: encourage commercial use in the United DOE. Similarly, in implementing the • Federal eRulemaking Portal: http:// States of new or significantly improved Secretary’s general authority under www.regulations.gov. Follow the energy related technologies and to section 1702(a) and the Title XVII Rule, instructions for submitting comments. achieve substantial environmental the Loan Programs Office has adopted • Email: benefits. Section 1703 also identifies ten extensive credit, loan monitoring and LPO.ProposedRuleComments@ categories of technologies and projects risk monitoring policies and procedures, hq.doe.gov. Include RIN 1901–AB38 in that are potentially eligible for loan detailed conditional commitment letters the subject line of the email. Please guarantees. Commercial use of these and term sheets, and loan guarantee include the full body of your comments technologies is expected to help sustain agreements to carry out the purposes of in the text of the message or as an and promote economic growth, produce Title XVII. attachment. a more stable and secure energy supply In this rulemaking, DOE proposes • Postal Mail: Mark A. McCall, and economy for the United States, and amendments to the regulations at 10 Executive Director, Loan Programs improve the environment. CFR part 609 based on its experience in Office, 1000 Independence Avenue SW., As a result of experience gained implementing the loan guarantee Washington, DC 20585–0121. Please implementing the loan guarantee program. The proposed changes address submit one signed original paper copy. program authorized by section 1703, topics such as the exchange of Due to potential delays in DOE’s receipt and information received from program information with potential applicants and processing of mail sent through the participants, including applicants, and the solicitation process, the pre- U.S. Postal Service, we encourage borrowers, sponsors, and lenders, as application process, the restriction of a respondents to submit comments well as various energy industry groups, project to a single location, and the electronically to ensure timely receipt. DOE proposes to amend the existing imposition of a risk-based fee. These • Hand Delivery/Courier: Mark A. regulations as described in Section II of issues are described in the paragraphs McCall, Executive Director, Loan this proposed rule. The proposal is that follow. Programs Office, 1000 Independence intended to provide increased clarity For the past several years, the DOE Avenue SW., Washington, DC 20585– and transparency, reduce paperwork, Loan Programs Office has increased
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communication with interested to charge the required fee in two parts, conditions of the Title XVII loan members of the public regarding the making it more economical for smaller guarantee program. Office, its programs, and solicitations. businesses to apply. By allowing DOE to A number of other changes have been DOE has prepared and distributed a engage in an initial review of project included to increase clarity and number of presentations explaining the proposals, the two-part application transparency. Among those changes are: application process and the types of process would reduce the paperwork Definitions have been clarified, projects that may be eligible under its burden for applicants whose projects are shortened where possible, and added; solicitations. The Executive Director of not ready to move forward into Part II. specific references to the Cargo the Loan Programs Office has Although there is no statutory Preference Act and the Davis Bacon Act participated in numerous public requirement that all parts of a project be have been added; an introductory discussions regarding the program. DOE located at a single location, DOE’s section on how the rule is to be has also increased communication by solicitations have provided that interpreted has been added; and various regular, broadly distributed email generally, a Project is restricted to one provisions of the existing rule have been communications to thousands of location within the United States but re-organized to more-appropriate places recipients that have expressed an that DOE, in its discretion, could in the rule. In a number of places, interest in keeping up with consider an application for a project references to the statutory requirement developments in the Loan Programs using a particular technology that is that DOE consult with the Secretary of Office. Contacts by potential applicants proposed to be situated in more than the Treasury previously included in regarding the program have significantly one location in the United States if Title XVII Rule have been removed. increased as a result of these efforts. multiple locations are integral Those references were removed solely Nevertheless, the proposed rule components of a unitary plan, necessary because they were unnecessary for includes changes intended to clarify the to the viability of the Project, and at consideration by applicants and circumstances under which potential least one of the locations is identified in potential applicants. DOE’s statutory applicants may communicate with DOE the application. Applicants and obligation to consult with the Secretary prior to submitting an application. DOE potential applicants found this of the Treasury under Section 1702(a) of expects that the proposed changes requirement of DOE’s solicitations Title XVII remains unchanged, and no would increase transparency and result difficult to understand. Additionally, change is intended in the existing in more applications by qualified this requirement inhibits an applicant’s consultation arrangements between the applicants with respect to potential ability to propose certain types of Secretary of Energy and the Secretary of eligible projects. distributed energy facilities. DOE the Treasury. The provisions of the existing rule reconsidered the need for such a III. Public Comment Procedures relating to Pre-Applications have caused requirement and proposes a revised considerable confusion among potential definition of Eligible Project that would Interested persons are invited to applicants and applicants. In this explicitly state that a project may be participate in this proceeding by proposed rule, DOE proposes to located at two or more locations in the submitting data, views, or arguments. eliminate the existing pre-application United States if the project is comprised Written comments should be submitted process and codify procedures that of installations or facilities employing a to the address, and in the form, divide the application into two parts. single New or Significantly Improved indicated in the ADDRESSES section of The Part I submission would provide Technology that is deployed pursuant to this notice of proposed rulemaking. To DOE with a description of the project or an integrated and comprehensive help DOE review the comments, facility, technical information, business plan. interested persons are asked to refer to background information on DOE also proposes to include in the specific proposed rule provisions, if management, financing strategy, and rule provisions for the use of Risk-Based possible. progress to date of critical path Charges. DOE, working in conjunction If you submit information that you schedules. These schedules would with the Federal Financing Bank believe to be exempt by law from public include items such as obtaining licenses (‘‘FFB’’), has developed a program disclosure, you should submit one or regulatory permits and approvals, site under which borrowers for certain types complete copy, as well as one copy from preparation and long lead-time of transactions pay a ‘‘credit-based which the information claimed to be procurements, and would be used as a interest rate spread’’ in addition to exempt by law from public disclosure basis for determining the eligibility of interest otherwise payable on loans that has been deleted. DOE is responsible for the project and the project’s readiness to are issued by FFB. Use of interest rate the final determination with regard to proceed. Applicants whose Part I spreads or other charges based upon the disclosure or nondisclosure of the application is sufficient to indicate, on creditworthiness or specific risks arising information and for treating it a preliminary basis, the eligibility of the from individual transactions are accordingly under the DOE Freedom of project and that it is ready to proceed commonplace in private-sector Information Act regulations at 10 CFR would be invited to submit Part II of the commercial loan transactions, including 1004.11. application. The Part II submission private-sector project finance loan would involve substantially more, and transactions. Such spreads or other IV. Regulatory Review substantially more detailed, information charges are also used by other federal A. Executive Order 12866 than is required for the Part I credit programs comparable to the Title submission. The proposed process of XVII loan guarantee program, such as This proposed rule has been requiring a two-part application is those administered by the Overseas determined to be a significant regulatory designed, in part, to enable DOE to Private Investment Corporation and the action under Executive Order 12866, screen interested projects and provide Export-Import Bank of the United ‘‘Regulatory Planning and Review,’’ 58 an early indication of projects’ States. Use of Risk-Based Charges is FR 51735 (October 4, 1993). eligibility for a loan guarantee under permitted pursuant to the grant of Accordingly, this action was subject to this program. The two-part application authority to the Secretary in Section review under that Executive Order by process would additionally allow DOE 1702(a) to determine the terms and the Office of Information and Regulatory
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Affairs (OIRA) of the Office of data needed, and completing and ‘‘Federal private sector mandate’’ for Management and Budget (OMB). reviewing the collection of information. requirements that are a condition of All responses are expected to be Federal assistance or a duty arising from B. National Environmental Policy Act collected electronically. participation in a voluntary program. DOE has determined that this DOE invites public comment on: (1) The Act does not apply to this proposed rule is covered under the Whether the proposed information rulemaking. Categorical Exclusion found in the collection requirements are necessary DOE’s National Environmental Policy for the performance of DOE’s functions, F. Treasury and General Government Act regulations at paragraph A.5 of including whether the information will Appropriations Act, 1999 appendix A to subpart D, 10 CFR part have practical utility; (2) the accuracy of Section 654 of the Treasury and 1021, which applies to rulemaking that DOE’s estimates of the burden of the General Government Appropriations amends an existing rule or regulation proposed information collection Act, 1999 (Pub. L. 105–277) requires which does not change the requirements; (3) ways to enhance the Federal agencies to issue a Family environmental effect of the rule or quality, utility, and clarity of the Policymaking Assessment for any regulation being amended. information to be collected; and (4) proposed rule that may affect family well-being. The proposed rule would C. Regulatory Flexibility Act ways to minimize the burden of the information collection requirements on not have any impact on the autonomy The Regulatory Flexibility Act (5 respondents. Comments should be or integrity of the family as an U.S.C. 601 et seq.) requires preparation addressed to the Department of Energy institution. Accordingly, DOE has of an initial regulatory flexibility Desk Officer, Office of Information and concluded that it is not necessary to analysis for any rule that by law must Regulatory Affairs, OMB, 725 17th prepare a Family Policymaking be proposed for public comment, unless Street NW., Washington, DC 20503. Assessment. the agency certifies that the rule, if Persons submitting comments to OMB G. Executive Order 13132 promulgated, will not have a significant also are requested to send a copy to the economic impact on a substantial contact person at the address given in Executive Order 13132, ‘‘Federalism,’’ number of small entities. As required by the ADDRESSES section of this notice of 64 FR 43255 (August 4, 1999) imposes Executive Order 13272, ‘‘Proper proposed rulemaking. Interested certain requirements on agencies Consideration of Small Entities in persons may obtain a copy of the DOE’s formulating and implementing policies Agency Rulemaking,’’ 67 FR 53461 Paperwork Reduction Act Submission to or regulations that preempt State law or (August 16, 2002), DOE published OMB from the contact person named in that have federalism implications. procedures and policies on February 19, this notice of proposed rulemaking. Agencies are required to examine the 2003, to ensure that the potential Notwithstanding any other provision of constitutional and statutory authority impacts of its rules on small entities are law, a person is not required to respond supporting any action that would limit properly considered during the to a collection of information unless it the policymaking discretion of the rulemaking process (68 FR 7990). DOE displays a currently valid OMB control States and carefully assess the necessity has made its procedures and policies number. for such actions. DOE has examined this available on the Office of General proposed rule and has determined that Counsel’s Web site: http:// E. Unfunded Mandates Reform Act of it would not preempt State law and www.energy.gov/gc/downloads/ 1995 would not have a substantial direct executive-order-13272-consideration- The Unfunded Mandates Reform Act effect on the States, on the relationship small-entities-agency-rulemaking. of 1995 (Act) (Pub. L. 104–4) generally between the national government and DOE is not obliged to prepare a requires Federal agencies to examine the States, or on the distribution of regulatory flexibility analysis for this closely the impacts of regulatory actions power and responsibilities among the rulemaking because there is not a on State, local, and tribal governments. various levels of government. No further requirement to publish a general notice The term ‘‘Federal mandate’’ is action is required by Executive Order of proposed rulemaking for rules related defined in the Act to mean a Federal 13132. to loans under the Administrative intergovernmental mandate or a Federal H. Executive Order 12988 Procedure Act (5 U.S.C. 553(a)(2)). private sector mandate. Although the proposed rule would impose certain With respect to the review of existing D. Paperwork Reduction Act requirements on non-Federal regulations and the promulgation of Information collection requirements governmental and private sector new regulations, section 3(a) of for the DOE regulations at 10 CFR part applicants for loan guarantees, the Act’s Executive Order 12988, ‘‘Civil Justice 609 were previously approved by OMB definitions of the terms ‘‘Federal Reform,’’ 61 FR 4729 (February 7, 1996), pursuant to the Paperwork Reduction intergovernmental mandate’’ and imposes on Executive agencies the Act of 1995 (44 U.S.C. 3501 et seq.) and ‘‘Federal private sector mandate’’ general duty to adhere to the following the procedure implementing that Act (5 exclude among other things, any requirements: (1) Eliminate drafting CFR 1320.1 et seq.) under OMB Control provision in legislation, statute, or errors and ambiguity; (2) write Number 1910–5134. This proposed rule regulation that is a condition of Federal regulations to minimize litigation; and contains revised information collection assistance or a duty arising from (3) provide a clear legal standard for requirements subject to approval by participation in a voluntary program. affected conduct rather than a general OMB. DOE has submitted the proposed The proposed rule would establish standard and promote simplification revised collection of information to requirements that persons voluntarily and burden reduction. With regard to OMB for approval. Public reporting seeking loan guarantees for projects that the review required by section 3(a), burden for the revised requirements in would use certain new and improved section 3(b) of Executive Order 12988 this proposed rule is estimated to energy technologies must satisfy as a specifically requires that Executive average 130 hours per response, condition of a Federal loan guarantee. agencies make every reasonable effort to including the time for reviewing Thus, the proposed rule falls under the ensure that the regulation: (1) Clearly instructions, searching existing data exceptions in the definitions of ‘‘Federal specifies the preemptive effect, if any; sources, gathering and maintaining the intergovernmental mandate’’ and (2) clearly specifies any effect on
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existing Federal law or regulation; (3) This regulatory action would not have a § 609.1 Purpose and scope. provides a clear legal standard for significant adverse effect on the supply, (a) This part sets forth the policies affected conduct while promoting distribution, or use of energy and has and procedures that DOE uses for simplification and burden reduction; (4) not been designated by OIRA as a receiving, evaluating, and approving specifies the retroactive effect, if any; (5) significant energy action, and is applications for loan guarantees to adequately defines key terms; and (6) therefore not a significant energy action. support Eligible Projects under section addresses other important issues Accordingly, DOE has not prepared a 1703 of the Energy Policy Act of 2005 affecting clarity and general Statement of Energy Effects. (Act). draftsmanship under any guidelines (b) This part applies to all K. Executive Order 12630 issued by the Attorney General. Section Applications, Conditional 3(c) of Executive Order 12988 requires The Department has determined, Commitments, and Loan Guarantee Executive agencies to review regulations under Executive Order 12630, Agreements. in light of applicable standards in ‘‘Governmental Actions and Interference (c) Part 1024 of chapter X of title 10 section 3(a) and section 3(b) to with Constitutionally Protected Property of the Code of Federal Regulations determine whether they are met or it is Rights,’’ 53 FR 8859 (March 18, 1988), (PROCEDURES FOR FINANCIAL unreasonable to meet one or more of that this rulemaking would not result in ASSISTANCE APPEALS) shall not them. DOE has completed the required any takings which might require apply to actions taken under this part. review and determined that, to the compensation under the Fifth § 609.2 Definitions and interpretation. extent permitted by law, the proposed Amendment to the United States (a) Definitions. When used in this part rule meets the relevant standards of Constitution. Executive Order 12988. the following words have the following V. Approval of the Office of the meanings. I. Treasury and General Government Secretary Act means Title XVII of the Energy Appropriations Act, 2001 Policy Act of 2005 (42 U.S.C. 16511– The Treasury and General The Secretary of Energy has approved 16514), as amended. Government Appropriations Act, 2001 publication of this notice of proposed Administrative cost of issuing a loan (44 U.S.C. 3516 note) provides for rulemaking. guarantee means the total of all agencies to review most disseminations List of Subjects in 10 CFR Part 609 administrative expenses that DOE of information to the public under incurs during: guidelines established by each agency Administrative practice and (1) The evaluation of an Application pursuant to general guidelines issued by procedure, Energy, Loan programs, and for a loan guarantee; OMB. Reporting and recordkeeping (2) The negotiation and offer of a OMB’s guidelines were published at requirements. Term Sheet; 67 FR 8452 (February 22, 2002), and Issued in Washington, DC, on September (3) The negotiation of a Loan DOE’s guidelines were published at 67 21, 2016. Guarantee Agreement and related FR 62446 (October 7, 2002). DOE has Mark A. McCall, documents, including the issuance of a reviewed this proposed rule under the Executive Director, Loan Programs Office. Guarantee; and OMB and DOE guidelines and has (4) The servicing and monitoring of a concluded that it is consistent with For the reasons stated in the Loan Guarantee Agreement, including applicable policies in those guidelines. preamble, DOE proposes to revise part during the construction, startup, J. Executive Order 13211 609 of chapter II of title 10 of the Code commissioning, shakedown, and of Federal Regulations to read as operational phases of an Eligible Project. Executive Order 13211, ‘‘Actions follows: Applicant means a Person, including Concerning Regulations That a prospective Borrower or Project Significantly Affect Energy Supply, PART 609—LOAN GUARANTEES FOR Sponsor, that submits an Application to Distribution, or Use,’’ 66 FR 28355 (May PROJECTS THAT EMPLOY DOE. 22, 2001) requires Federal agencies to INNOVATIVE TECHNOLOGIES Application means a written prepare and submit to the OMB, a submission of materials responsive to a Statement of Energy Effects for any Sec. Solicitation that satisfies § 609.4 of this 609.1 Purpose and scope. proposed significant energy action. A part. ‘‘significant energy action’’ is defined as 609.2 Definitions and interpretation. 609.3 Solicitations. Application fee means the fee or fees any action by an agency that 609.4 Submission of applications. required to be paid by an Applicant in promulgated or is expected to lead to 609.5 Programmatic, technical and financial connection with submission of an promulgation of a final rule, and that: evaluation of applications. Application and specified in a (1) Is a significant regulatory action 609.6 Term sheets and conditional Solicitation. The Application Fee does under Executive Order 12866, or any commitments. not include the Credit Subsidy Cost. successor order; and (2) is likely to have 609.7 Closing on the loan guarantee Attorney General means the Attorney a significant adverse effect on the agreement. General of the United States. supply, distribution, or use of energy, or 609.8 Loan guarantee agreement. Borrower means any Person that (3) is designated by the Administrator of 609.9 Lender servicing requirements. 609.10 Project costs. enters into a Loan Guarantee Agreement OIRA as a significant energy action. For 609.11 Fees and charges. with DOE and issues Guaranteed any proposed significant energy action, 609.12 Full faith and credit and Obligations. the agency must give a detailed incontestability. Cargo preference act means the Cargo statement of any adverse effects on 609.13 Default, demand, payment, and Preference Act of 1954, 46 U.S.C 55305, energy supply, distribution, or use foreclosure on collateral. as amended. should the proposal be implemented, 609.14 Preservation of collateral. Commercial technology means a and of reasonable alternatives to the 609.15 Audits and access to records. technology in general use in the action and their expected benefits on 609.16 Deviations. commercial marketplace in the United energy supply, distribution, and use. Authority: 42 U.S.C. 7254, 16511–16514. States at the time the Term Sheet is
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offered by DOE. A technology is in contract or participation in a non- Guarantee means the undertaking of general use if it is being used in three procurement activity (under a set of the United States of America, acting or more facilities that are in commercial uniform regulations implemented for through the Secretary pursuant to Title operation in the United States for the numerous agencies, such as DOE, at 2 XVII of the Energy Policy Act of 2005, same general purpose as the proposed CFR part 180); to pay in accordance with the terms project, and has been used in each such (ii) Not delinquent on any Federal thereof, principal and interest of a facility for a period of at least five years. debt or loan; Guaranteed Obligation. The five-year period for each facility (iii) Legally authorized and Guaranteed obligation means any shall start on the in-service date of the empowered to enter into loan guarantee loan or other debt obligation of the facility employing that particular transactions authorized by the Act and Borrower for an Eligible Project for technology or, in the case of a retrofit of these regulations; which DOE guarantees all or any part of a facility to employ a particular (iv) Able to demonstrate experience in the payment of principal and interest technology, the date the facility resumes originating and servicing loans for under a Loan Guarantee Agreement commercial operation following commercial projects similar in size and entered into pursuant to the Act. completion and testing of the retrofit. scope to the Eligible Project, or able to Holder means any Person that holds a For purposes of this section, facilities procure such experience through promissory made by the Borrower that are in commercial operation contracts acceptable to DOE; and evidencing the Guaranteed Obligation include projects that have been the (v) Able to demonstrate experience as (or his designee or agent). recipients of a loan guarantee from DOE the lead lender or underwriter by Intercreditor agreement means any under this part. presenting evidence of its participation agreement or instrument (or amendment Conditional commitment means a in large commercial projects or energy- or modification thereof) among DOE and Term Sheet offered by DOE and related projects or other relevant one or more other Persons providing accepted by the offeree of the Term experience, or able to procure such financing or other credit arrangements Sheet, all in accordance with § 609.6(c) experience through contracts acceptable to the Borrower or an Eligible Project) or of this part; provided, that the Secretary to DOE; or that otherwise provides for rights of may terminate a Conditional (2) The Federal Financing Bank. DOE in respect of a Borrower or in Commitment for any reason at any time Eligible project means a project that: respect of an Eligible Project, in each prior to the execution of the Loan (1) Is located in the United States at case in form and substance satisfactory Guarantee Agreement; and provided, one location, except that the project may to DOE. further, that the Secretary may not be located at two or more locations in Loan agreement means a written delegate this authority to terminate a the United States if the project is agreement between a Borrower and an Conditional Commitment. comprised of installations or facilities Eligible Lender containing the terms Contracting officer means the employing a single New or Significantly and conditions under which the Eligible Secretary of Energy or a DOE official Improved Technology that is deployed Lender will make a loan or loans to the authorized by the Secretary to enter pursuant to an integrated and Borrower for an Eligible Project. into, administer or terminate DOE Loan comprehensive business plan. An Loan guarantee agreement means a Guarantee Agreements and related Eligible Project in more than one written agreement that, when entered contracts on behalf of DOE. location is a single Eligible Project; into by DOE and a Borrower, and, if Credit subsidy cost has the same (2) Deploys a New or Significantly applicable, an Eligible Lender, meaning as ‘‘cost of a loan guarantee’’ in Improved Technology; and establishes the obligation of DOE to section 502(5)(C) of the Federal Credit (3) Satisfies all applicable guarantee the payment of all or a Reform Act of 1990, which is the net requirements of section 1703 of the Act, portion of the principal of, and interest present value, at the time the Loan the applicable Solicitation, and this on, specified Guaranteed Obligations, Guarantee Agreement is executed, of the part. subject to the terms and conditions Equity means cash contributed to the following estimated cash flows, specified in the Loan Guarantee permanent capital stock (or equivalent) discounted to the point of disbursement: Agreement. (1) Payments by the Government to of the Borrower or the Eligible Project New or significantly improved cover defaults and delinquencies, by the shareholders or other owners of technology means a technology, or a interest subsidies, or other payments; the Borrower or the Eligible Project. defined suite of technologies, concerned less Equity does not include proceeds from with the production, consumption, or (2) Payments to the Government the non-guaranteed portion of a transportation of energy and that is not including origination and other fees, Guaranteed Obligation, proceeds from a Commercial Technology, and that has penalties, and recoveries; including the any other non-guaranteed loan or either: effects of changes in loan or debt terms obligation, or the value of any (1) Only recently been developed, resulting from the exercise by the government assistance or support. discovered, or learned; or Borrower, Eligible Lender or other Facility fee means the fee, to be paid (2) Involves or constitutes one or more Holder of an option included in the in the amount and in the manner meaningful and important Loan Guarantee Agreement. provided in the Term Sheet, to cover the improvements in productivity or value, Davis-Bacon act means the statute Administrative Cost of Issuing a Loan in comparison to Commercial referenced in section 1702(k) of the Act. Guarantee for the period from the Technologies in use in the United States DOE means the United States Borrower’s acceptance of the Term at the time the Term Sheet is issued. Department of Energy. Sheet through issuance of the OMB means the Office of Management Eligible lender means either: Guarantee. and Budget in the Executive Office of (1) Any Person formed for the purpose Federal financing bank means an the President. of, or engaged in the business of, instrumentality of the United States Person means any natural person or lending money that, as determined by government created by the Federal any legally constituted entity, including DOE in each case, is: Financing Bank Act of 1973, under the a state or local government, tribe, (i) Not debarred or suspended from general supervision of the Secretary of corporation, company, voluntary participation in a Federal government the Treasury. association, partnership, limited
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liability company, joint venture, and amendment, supplement or general terms to specific proposals. trust. modification of such law, and all DOE’s responses to questions from Project costs mean those costs, regulations, rulings, and other laws potential Applicants and DOE’s including escalation and contingencies, promulgated thereunder. statements to potential Applicants are that are to be expended or accrued by (5) References to information or pre-decisional and preliminary in a Borrower and are necessary, documents required or allowed to be nature. Any such responses and reasonable, customary and directly submitted to DOE mean information or statements are subject in their entirety related to the design, engineering, documents that are marked as provided to any final action by DOE with respect financing, construction, startup, in 10 CFR 600.15(b). A document or to an Application submitted in commissioning and shakedown of an information that is not marked as accordance with § 609.4 of this part. Eligible Project, as specified in provided in 10 CFR 600.15(b) will not § 609.4 Submission of applications. § 609.10(a) of this part. Project Costs do be considered as having been submitted not include costs for the items set forth to or received by DOE. (a) In response to a Solicitation, an in § 609.10(b) of this part. (6) A reference to a Person includes Applicant must meet all requirements Project sponsor means any Person that such Person’s successors and permitted and provide all information specified in assumes substantial responsibility for assigns. this part and the Solicitation in the the development, financing, and (7) The words ‘‘include,’’ ‘‘includes’’ manner and on or before the date structuring of an Eligible Project and, if and ‘‘including’’ are not limiting and specified therein. DOE may direct that not the Applicant, owns or controls, by mean include, includes and including Applications be submitted in more than itself and/or through individuals in ‘‘without limitation’’ and ‘‘without one part; provided, that the parts of common or affiliated business entities, a limitation by specification.’’ such Application, taken as a whole, five percent or greater interest in the (8) The words ‘‘hereof,’’ ‘‘herein’’ and satisfy the requirements of § 609.4(c) proposed Eligible Project, the Borrower ‘‘hereunder’’ and words of similar and this part. In such event, subsequent or the Applicant. import refer this part as a whole and not parts of an Application may be filed Risk-based charge means a charge to any particular provision of this part. only after DOE invites an Applicant to that, together with the principal and make an additional submission. The interest on the guaranteed loan, or at § 609.3 Solicitations. initial part of an Application may be such other times as DOE may determine, (a) DOE may invite the submission of used by DOE to determine the is payable on specified dates during the Applications for loan guarantees for likelihood that the project proposed by term of a Guaranteed Obligation. Eligible Projects pursuant to a an Applicant will be an Eligible Project, Secretary means the Secretary of Solicitation. and to evaluate such project’s readiness Energy or a duly authorized designee or (b) Each Solicitation must include, at to proceed. If there have been any successor in interest. a minimum, the following information: material amendments, modifications or Solicitation means an announcement (1) The dollar amount of loan additions made to the information that DOE is accepting Applications that guarantee authority potentially being previously submitted by an Applicant, is widely disseminated to the public on made available by DOE in that the Applicant shall provide a detailed the DOE Web site or otherwise, and Solicitation; description thereof, including any which satisfies the requirements of (2) The place and deadline for changes in the proposed project’s § 609.3(b) of this part. submission of Applications; financing structure or other terms, Term sheet means a written offer for (3) The name and address of the DOE promptly upon request by DOE. Where the issuance of a loan guarantee, representative whom a potential DOE has directed that an Application be executed by the Secretary (or a DOE Applicant may contact to receive further submitted in parts, DOE may provide for official authorized by the Secretary to information and a copy of the payment of the Application Fee in parts. execute such offer), delivered to the Solicitation; (b) An Applicant may submit only offeree, that sets forth the detailed terms (4) The form, format, and page limits one Application for one proposed and conditions under which DOE and applicable to the Application; project using a particular technology. the Applicant will execute a Loan (5) The amount of the Application Fee An Applicant may not submit an Guarantee Agreement. and any other fees that will be required; Application or Applications for United States means the several (6) The programmatic, technical, multiple Eligible Projects using the States, the District of Columbia, the financial and other factors that DOE will same technology. An Applicant may Commonwealth of Puerto Rico, the use to evaluate response submissions, submit Applications for multiple Virgin Islands, Guam, American Samoa and their relative weightings in that proposed projects using different and any territory or possession of the evaluation; and technologies. For purposes of this United States of America. (7) Such other information as DOE paragraph, the term Applicant shall (b) Interpretations. This part shall be may deem appropriate. include the Project Sponsor and any interpreted using the following (c) Using procedures as may be subsidiaries or affiliates of the Project guidelines. announced by DOE a potential Sponsor. (1) The word ‘‘discretion’’ when used Applicant may request a meeting with (c) An Application must include, at a with reference to DOE, including the DOE to discuss its potential minimum, the following information Secretary, means ‘‘sole discretion.’’ Application. At its discretion, DOE may and materials: (2) Defined terms in the singular shall meet with a potential Applicant, either (1) A completed Application form include the plural and vice versa, and in person or electronically, to discuss its signed by an individual with full the masculine, feminine or neuter potential Application. DOE may provide authority to bind the Applicant, gender shall include all genders. a potential Applicant with a preliminary including the commitments and (3) The word ‘‘or’’ is not exclusive. response regarding whether its proposed representations made in each part of the (4) References to laws by name or Application may constitute an Eligible Application; popular name are references to the Project. DOE is not permitted to design (2) The applicable Application Fee; version of such law appearing in the an Eligible Project for an Applicant, but (3) A description of how and to what United States Code and include any may respond, in its discretion, in measurable extent the proposed project
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avoids, reduces, or sequesters air relevant economics justifying the commissioning and operations, and pollutants and/or anthropogenic analysis, and copies of maintenance; emissions of greenhouse gases, (i) Any contracts for the sale of such (21) A credit history of the Applicant including how to measure and verify products or the provision of such and each Project Sponsor; those effects; services, or (22) A preliminary credit assessment (4) A description of the nature and (ii) Any other assurance of the for the proposed project without a loan scope of the proposed project, revenues to be generated from sale of guarantee from a nationally recognized including: such products or provision of such rating agency for projects where the (i) Key project milestones; services; estimated total Project Costs exceed $25 (ii) Location or locations of the (14) A detailed description of the million. For proposed projects where proposed project; overall financial plan for the proposed the total estimated Project Costs are $25 (iii) Identification and commercial project, including all sources and uses million or less and where conditions feasibility of the New or Significantly of funding, equity and debt, and the justify, in the sole discretion of the Improved Technology to be deployed; liability of parties associated with the Secretary, DOE may require such an (iv) How the Applicant intends to proposed project over the term of the assessment; deploy such New or Significantly Loan Guarantee Agreement; (23) A list showing the status of and Improved Technology in the proposed (15) A copy of all material estimated completion date of project; and agreements, whether entered into or Applicant’s required applications for (v) How the Applicant intends to proposed, relevant to the investment, federal, state, and local permits, assure, to the extent possible, the further design, engineering, financing, authorizations or approvals to site, commercial availability of the New or construction, startup commissioning, construct, and operate the proposed Significantly Improved Technology in shakedown, operations and project; (24) A report containing an analysis of the United States. maintenance of the proposed project; the potential environmental impacts of (5) An explanation of how the (16) A copy of the financial closing the proposed project that will enable proposed project qualifies as a project checklist for the equity and debt to the DOE to— within the category or categories of extent available; (i) Assess whether the proposed projects referred to in the Solicitation; (17) The Applicant’s business plan on project will comply with all applicable (6) A detailed estimate of the total which the proposed project is based and environmental requirements; and Project Costs together with a description Applicant’s financial model with (ii) Undertake and complete any of the methodology and assumptions respect to the proposed project for the necessary reviews under the National used; proposed term of the Guaranteed Environmental Policy Act of 1969; (7) A detailed description of the Obligations, including, as applicable, (25) A listing and description of the engineering and design contractor(s), pro forma income statements, balance assets of or to be utilized for the benefit construction contractor(s), and sheets, and cash flows. All such of the proposed project, and of any other equipment supplier(s); information and data must include asset that will serve as collateral (8) The construction schedules for the assumptions made in their preparation pledged in respect of the Guaranteed proposed project, including major and the range of revenue, operating cost, Obligations, including appropriate data activity and cost milestones; and credit assumptions considered; as to the value of such assets and the (9) A description of the material terms (18) Financial statements for the three useful life of any physical assets. With and conditions of the development and immediately preceding fiscal years of respect to real property assets listed, an construction contracts to include the the Applicant (or such shorter period as appraisal that is consistent with the performance guarantees, performance the Applicant has been in existence) ‘‘Uniform Standards of Professional bonds, liquidated damages provisions, that have been audited by an Appraisal Practice,’’ promulgated by the and equipment warranties; independent certified public accounting Appraisal Standards Board of the (10) A detailed description of the firm, including all associated Appraisal Foundation, and performed operations and maintenance provider(s), certifications, notes and letters to by licensed or certified appraisers, is the plant operating plan, estimated management, as well as interim required; staffing requirements, parts inventory, financial statements and notes for the (26) An analysis demonstrating that, major maintenance schedule, estimated current fiscal year for the Applicant and at the time of the Application, there is annual downtime, and performance all other Persons the credit of which is a reasonable prospect that Borrower will guarantees and related liquidated material to the success of the be able to repay the Guaranteed damage provisions, if any; transactions described in the Obligations (including interest) (11) A description of the management Application; according to their terms, and a complete plan of operations to be employed in (19) A copy of all legal opinions, and description of the operational and carrying out the proposed project, and other material reports, analyses, and financial assumptions and information concerning the management reviews related to the proposed project methodologies on which this experience of each officer or key person that have been delivered prior to demonstration is based; and associated with the proposed project; submission of any part of the (27) If proposed project assets or (12) A detailed description of the Application; facilities are or will be jointly owned by proposed project decommissioning, (20) An independent engineering the Applicant and one or more other deconstruction, and disposal plan, and report prepared by an engineer with Persons or entities, each of which owns the anticipated costs associated experience in the industry and an undivided ownership interest in therewith; familiarity with similar projects. The such proposed project assets or (13) An analysis of the market for any report should address the proposed facilities, a description of the product (including but not limited to project’s siting and permitting Applicant’s rights and obligations in electricity and chemicals) to be arrangements, engineering and design, respect of its undivided ownership produced by, or services to be provided contractual requirements, interest in such proposed project assets by, the proposed project, including environmental compliance, testing, or facilities.
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(d) During the Application evaluation deployed in other commercial projects or credit arrangements, are reasonable process pursuant to § 609.5 of this part, in the United States, or is not or will not relative to the nature and scope of the DOE may request additional be available for further commercial use proposed project; information, potentially including a in the United States; (ii) The total amount and nature of the preliminary credit rating or credit (3) The Person proposed to issue the Project Costs and the extent to which assessment, with respect to the loan or purchase other debt obligations Project Costs are to be funded by proposed project. constituting the Guaranteed Obligations Guaranteed Obligations; and (e) DOE will not consider any part of is not an Eligible Lender; (iii) The feasibility of the proposed any Application or the Application as a (4) The proposed project is for project and likelihood that it will whole complete unless the Application demonstration, research, or produce sufficient revenues to service Fee (or the required portion of the development; its debt obligations over the life of the Application Fee related to a particular (5) Significant Equity for the proposed loan guarantee and assure timely part of the Application) has been paid. project will not be provided by the date repayment of Guaranteed Obligations; An Application Fee paid in connection of issuance of the Guaranteed (5) The likelihood that the proposed with one Application is not transferable Obligations, or such later time as DOE project will be ready for full commercial to another Application. Except in the in its discretion may determine; or operations in the time frame stated in discretion of DOE, no portion of the (6) The proposed project does not the Application; Application Fee is refundable; present a reasonable prospect of (6) The amount of Equity committed (f) DOE has no obligation to evaluate repayment of the Guaranteed and to be committed to the proposed an Application that is not complete, and Obligations. project by the Borrower, the Project may proceed with such evaluation, or a (b) If an Application has not been Sponsor, and other Persons; partial evaluation, only in its discretion. denied pursuant to § 609.5(a), DOE will (7) Whether there is sufficient (g) Unless an Applicant requests an evaluate the proposed Project based on evidence that the Borrower will extension and such an extension is the criteria set forth in the Act, any diligently implement the proposed granted by DOE in its discretion, an applicable Solicitation and the project, including initiating and Application may be rejected if it is not following: completing the proposed project in a complete within four years from the (1) To what measurable extent the timely manner; date of submission (or date of proposed project avoids, reduces, or (8) Whether and to what extent the submission of the first part thereof, in sequesters air pollutants or Applicant will rely upon other Federal the case of Applications made in more anthropogenic emissions of greenhouses and non-Federal Government assistance than one part). gases, or contributes to the avoidance, such as grants, tax credits, or other loan (h) Upon making a determination to reduction or sequestration of air guarantees to support the financing, engage independent consultants or pollutants or anthropogenic emissions construction, and operation of the outside counsel with respect to an of greenhouse gases; proposed project and how such Application, DOE will proceed to (2) To what extent the technology to assistance will impact the proposed evaluate and process such Application be deployed in the proposed project— project; only following execution by an (i) Is ready to be deployed (9) The levels of safeguards provided Applicant or Project Sponsor, as commercially in the United States, can to the Federal Government in the event appropriate, of an agreement satisfactory be replicated, yields a commercially of default through collateral, warranties, to DOE to pay the fees and expenses viable product or service in the use and other assurance of repayment charged by the independent consultants proposed in the proposed project, has described in the Application, including and outside legal counsel. potential to be deployed in other the nature of any anticipated commercial projects in the United intercreditor arrangements; § 609.5 Programmatic, technical and States, and is or will be available for (10) The Applicant’s, or the relevant financial evaluation of applications. further commercial use in the United contractor’s, capacity and expertise to (a) In reviewing completed States; and operate the proposed project Applications, and in prioritizing and (ii) Constitutes an important successfully, based on factors such as selecting those as to which a Term Sheet improvement in technology, as financial soundness, management should be offered, DOE will apply the compared to available Commercial organization, and the nature and extent criteria set forth in the Act, any Technologies, used to avoid, reduce or of corporate and individual experience; applicable Solicitation, and this part. sequester air pollutants or (11) The ability of the proposed Applications will be considered in a anthropogenic emissions of greenhouse Borrower to ensure that the proposed competitive process, i.e. each gases; project will comply with all applicable Application will be evaluated against (3) To what extent the Applicant has laws and regulations, including all other Applications responsive to the a plan to advance or assist in the applicable environmental statutes and Solicitation. .DOE may compare an advancement of that technology into the regulations; Application to Applications related to commercial marketplace in the United (12) The levels of market, regulatory, other projects that DOE reasonably States; legal, financial, technological, and other believes may become the subject of an (4) The extent to which the level of risks associated with the proposed Application. Applications will be proposed support in the Application is project and their appropriateness for a denied if: consistent with a reasonable prospect of loan guarantee provided by DOE; (1) The proposed project is not an repayment of the Guaranteed (13) Whether the Application contains Eligible Project; Obligations by considering, among other sufficient information, including a (2) The applicable technology is not factors: detailed description of the nature and ready to be deployed commercially in (i) The extent to which the requested scope of the proposed project and the the United States, cannot yield a amount of the loan guarantee, the nature, scope, and risk coverage of the commercially viable product or service requested amount of Guaranteed loan guarantee sought to enable DOE to in the use proposed in the Application, Obligations and, if applicable, the perform a thorough assessment of the does not have the potential to be expected amount of any other financing proposed project; and
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(14) Such other criteria that DOE respect of an Eligible Project, change (7) DOE has determined the principal deems relevant in evaluating the merits from those described in the Conditional amount of the Guaranteed Obligations of an Application. Commitment, the Applicant shall expected to be issued in respect of the (c) After DOE completes its review promptly provide updated financing Eligible Project, as estimated at the time and evaluation of a proposed project information in writing to DOE. All such of issuance, will not exceed 80 percent pursuant to § 609.5(b) and this part, updated information shall be deemed to of the Project Costs of the Eligible DOE will notify the Applicant in writing be information submitted in connection Project; of its determination whether to proceed with an Application and shall be subject (8) All conditions precedent specified with due diligence and negotiation of a to § 609.4(b). Based on such updated in the Conditional Commitment are Term Sheet in accordance with § 609.6 information, DOE may take one or more either satisfied or waived by the of this part. DOE will proceed only if it of the following actions: Contracting Officer and all other determines that the proposed project is (1) Determine that such changes are applicable contractual, statutory, and highly qualified and suitable for a not material to the Borrower, the regulatory requirements have been Guarantee. Upon written confirmation Eligible Project or DOE; satisfied or waived by the Contracting from the Applicant that it desires to (2) Amend the Conditional Officer. If the counterparty to the proceed, DOE and the Applicant will Commitment accordingly; Conditional Commitment has not commence negotiations. (3) Postpone the expected closing date satisfied all such terms and conditions (d) A determination by DOE not to of the associated Loan Guarantee on or prior to the closing date of the proceed with a proposed project Agreement; or Loan Guarantee Agreement, the following evaluation pursuant to (4) Terminate the Conditional Secretary may, in his discretion, set a § 609.5(b) shall be final and non- Commitment. new closing date, or terminate the appealable, but shall not prejudice the § 609.7 Closing on the loan guarantee Conditional Commitment; and Applicant or other affected Persons from agreement. (9) Where the total Project Costs for an applying for a Guarantee in respect of a (a) Subsequent to entering into a Eligible Project are projected to exceed different proposed project pursuant to Conditional Commitment with an $25 million, the Applicant must provide another, separate Application. Applicant, DOE, after consultation with a credit rating from a nationally the Applicant, will set a closing date for recognized rating agency reflecting the § 609.6 Term sheets and conditional revised Conditional Commitment for the commitments. execution of a Loan Guarantee project without a Federal guarantee. (a) DOE, after negotiation of a Term Agreement. (b) Prior to or on the closing date of Where total Project Costs are projected Sheet with an Applicant, may offer such a Loan Guarantee Agreement, DOE will to be $25 million or less, the Secretary Term Sheet to an Applicant or such ensure that: may, on a case-by-case basis, require a other Person that is an affiliate of the (1) One of the following has occurred: credit rating. If a credit rating is Applicant and that is acceptable to DOE. (i) An appropriation for the Credit required, an updated rating must be DOE’s offer of a Term Sheet shall be in Subsidy Cost has been made; provided to the Secretary not later than writing and signed by the Contracting (ii) The Secretary has received from 30 days prior to closing. Officer. DOE’s negotiation of a Term the Borrower payment in full for the Sheet imposes no obligation on the Credit Subsidy Cost and deposited the § 609.8 Loan guarantee agreement. Secretary to offer a Term Sheet to the payment into the Treasury; or (a) Only a Loan Guarantee Agreement Applicant. (iii) A combination of one or more executed by the Contracting Officer can (b) DOE shall terminate its appropriations under paragraph (b)(1)(i) obligate DOE to issue a Guarantee in negotiations of a Term Sheet if it has not of this section and one or more respect of Guaranteed Obligations. offered a Term Sheet in respect of an payments from the Borrower under (b) DOE is not bound by oral Eligible Project within four years after paragraph (b)(1)(ii) of this section has representations. the date of the written notification set been made that is equal to the Credit (c) Each Loan Guarantee Agreement forth in § 609.5(c) of this part, unless Subsidy Cost; shall contain the following requirements extended in writing in the discretion of (2) Pursuant to section 1702(h) of the and conditions, and shall not be the Contracting Officer. Act, DOE has received from the executed until the Contracting Officer (c) If and when the offeree specified Applicant the remainder of the Facility determines that the following in a Term Sheet satisfies all terms and Fee referred to in § 609.11(b) of this requirements and conditions are conditions for acceptance of the Term part; satisfied: Sheet, including written acceptance (3) OMB has reviewed and approved (1) The Federal Financing Bank shall thereof and payment of all fees specified DOE’s calculation of the Credit Subsidy be the only Eligible Lender in in § 609.11(f) and therein to be paid at Cost of the Guarantee; transactions where DOE guarantees 100 or prior to acceptance of the Term (4) The Department of the Treasury percent (but not less than 100 percent) Sheet, the Term Sheet shall become a has been consulted as to the terms and of the principal and interest of the Conditional Commitment. Each conditions of the Loan Guarantee Guaranteed Obligations issued under a Conditional Commitment shall include Agreement; Loan Guarantee Agreement. an expiration date no more than two (5) The Loan Guarantee Agreement (i) Where DOE guarantees more than years from the date it is issued, unless and related documents contain all terms 90 percent of the Guaranteed Obligation, extended in writing in the discretion of and conditions DOE deems reasonable the guaranteed portion cannot be the Contracting Officer. When and if all and necessary to protect the interest of separated from or ‘‘stripped’’ from the of the terms and conditions specified in the United States; non-guaranteed portion of the the Conditional Commitment have been (6) Each holder of the Guaranteed Guaranteed Obligation if the loan is met, DOE and the Applicant may enter Obligations is an Eligible Lender, and participated, syndicated or otherwise into a Loan Guarantee Agreement. the servicer of the Guaranteed resold in the secondary market; and (d) If, subsequent to execution of a Obligations meets the servicing (ii) Where DOE guarantees 90 percent Conditional Commitment, the financing performance requirements of § 609.9(b) or less of the Guaranteed Obligation, the arrangements of the Borrower, or in of this part; guaranteed portion may be separated
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from or ‘‘stripped’’ from the non- of this part, and otherwise to carry out (i) Monitor the performance by the guaranteed portion of the Guaranteed the Eligible Project; Borrower of its obligations under the Obligation, if the loan is participated, (6) There shall be a reasonable Loan Guarantee Agreement, and syndicated or otherwise resold in the prospect of repayment by the Borrower (ii) Performance of the Eligible secondary debt market; of the principal of and interest on the Project; (2) The Borrower shall be obligated to Guaranteed Obligations and all of its (14) DOE and Borrower have reached make full repayment of the principal other debt obligations; an agreement regarding the information and interest on the Guaranteed (7) The Borrower shall pledge that will be made available to DOE and Obligations and other debt of a collateral or surety determined by DOE the information that will be made Borrower over a period of up to the to be necessary to secure the repayment publicly available; lesser of 30 years or 90 percent of the of the Guaranteed Obligations. Such (15) The Borrower shall have filed projected useful life of the Eligible collateral or security may include applications for or obtained any Project’s major physical assets, as Eligible Project assets and assets not required regulatory approvals for the calculated in accordance with U.S. related to the Eligible Project; Eligible Project and is in compliance, or generally accepted accounting (8) The Loan Guarantee Agreement promptly will be in compliance, where principles and practices. The non- and related documents shall include appropriate, with all Federal, state, and guaranteed portion (if any) of any detailed terms and conditions that DOE local regulatory requirements; Guaranteed Obligations must be repaid deems necessary and appropriate to (16) The Borrower shall have no pro rata, and on the same amortization protect the interests of the United States delinquent Federal debt; schedule, with the guaranteed portion. in the case of default, including (17) The Project Sponsors have made ensuring availability of all relevant or will make a significant Equity (3) If any financing or credit intellectual property rights, technical investment in the Borrower or the arrangement of the Borrower or relating data including software, and technology Eligible Project, and will maintain to the Eligible Project, other than the necessary for DOE or any Person or control of the Borrower or the Eligible Guaranteed Obligations, has an entity selected by DOE, to complete, Project as agreed in the LGA; and amortization period shorter than that of operate, convey, and dispose of the (18) The Loan Guarantee Agreement the Guaranteed Obligations, DOE shall defaulted Borrower or the Eligible and related agreements shall include have determined that the resulting Project; such other terms and conditions as DOE financing structure allocates to DOE a (9) The Guaranteed Obligations shall deems necessary or appropriate to reasonably proportionate share of the not be subordinate to other financing. protect the interests of the United default risk, in light of: Guaranteed Obligations are not States. (i) DOE’s share of the total debt subordinate to other financing if the lien (d) The Loan Guarantee Agreement financing of the Borrower, on property securing the Guaranteed shall provide that, in the event of a (ii) Risk allocation among the credit Obligations, together with liens that are default by the Borrower: providers to the Borrower, and pari passu with such lien, if any, take (1) Interest on the Guaranteed (iii) Internal and external credit priority or precedence over other Obligations shall accrue at the rate enhancements. charges or encumbrances upon the same stated in the Loan Guarantee Agreement (4) Consistent with the requirements property and must be satisfied before or the Loan Agreement, until DOE of section 149(b) of the Internal Revenue such other charges are entitled to makes full payment of the defaulted Code, the Guaranteed Obligations shall participate in proceeds of the property’s Guaranteed Obligations and, except not finance, directly, indirectly, or sale. In DOE’s discretion, Guaranteed when such Guaranteed Obligations are through effective subordination within Obligations may share a lien position funded through the Federal Financing the meaning of section II.A of OMB with other financing; Bank, DOE shall not be required to pay Circular No. A–129 (January 2013), tax- (10) There is satisfactory evidence any premium, default penalties, or exempt debt obligations. Guaranteed that the Borrower will diligently pursue prepayment penalties; and Obligations and any tax-exempt debt the Eligible Project and is willing, (2) The holder of collateral pledged in obligations payable directly or competent, and capable of performing respect of the Guaranteed Obligations indirectly from the revenues of the its obligations under the Loan Guarantee shall be obligated to take such actions Borrower or other resources of the Agreement and the loan documentation as DOE may reasonably require to Borrower must be repaid using separate, relating to its other debt obligations; provide for the care, preservation, dedicated revenue streams or other (11) The Borrower shall have paid all protection, and maintenance of such separate sources of repayment, and must fees and expenses due to DOE or the collateral so as to enable the United be separately collateralized. The terms U.S. Government, including such States to achieve maximum recovery. of the Guaranteed Obligations, such as, amount of the Credit Subsidy Cost as (e)(1) An Eligible Lender or other for example, grace periods, repayment may be due and payable from the Holder may sell, assign or transfer a schedules, and availability of deferrals, Borrower pursuant to the Conditional Guaranteed Obligation to another must not create effective subordination. Commitment, upon execution of the Eligible Lender that meets the The Guaranteed Obligations shall not be Loan Guarantee Agreement; requirements of § 609.9 of this part. used as collateral to secure tax-exempt (12) The Borrower, any Eligible Such latter Eligible Lender shall be debt obligations or guarantee loans Lender, and each other relevant party required to assume all servicing, funded by tax-exempt debt obligations; shall take, and be obligated to continue monitoring and reporting requirements (5) The principal amount of the to take, those actions necessary to as provided in the Loan Guarantee Guaranteed Obligations, when perfect and maintain liens on collateral Agreement. Any transfer of the combined with funds from other sources pledged in respect of the Guaranteed servicing, monitoring, and reporting committed and available to the Obligations; functions shall be subject to the prior Borrower, shall be sufficient to pay for (13) DOE or its representatives shall written approval of DOE. expected Project Costs (including have access to the offices of the (2) The Secretary, or the Secretary’s adequate contingency amounts), the Borrower and the Eligible Project site at designee or contractual agent, for the applicable items specified in § 609.10(b) all reasonable times in order to— purpose of identifying Holders with the
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right to receive payment under the the Guaranteed Obligations and the (12) Other necessary and reasonable Guaranteed Obligations, shall include in Eligible Project, and promptly notifying costs. the Loan Guarantee Agreement or DOE if it becomes aware of any (b) Project Costs do not include: related documents a procedure for problems or irregularities concerning (1) Fees and commissions charged to tracking and identifying Holders of the Eligible Project or the ability of the Borrower, including finder’s fees, for Guaranteed Obligations. Any Borrower to make payment on the obtaining Federal or other funds; contractual agent approved by the Guaranteed Obligations or its other debt (2) Parent corporation or other Secretary to perform this function may obligations. affiliated entity’s general and transfer or assign this responsibility administrative expenses, and non- only with the Secretary’s prior written § 609.10 Project costs. Eligible Project related parent approval. (a) Project Costs include: corporation or affiliated entity (f) Each Loan Guarantee Agreement (1) Costs of acquisition, lease, or assessments, including organizational shall require the Borrower to make rental of real property, including expenses; representations and warranties, agree to engineering fees, surveys, title (3) Goodwill, franchise, trade, or covenants, and satisfy conditions insurance, recording fees, and legal fees brand name costs; precedent to closing and to each incurred in connection with land (4) Dividends and profit sharing to disbursement that, in each case, relate to acquisition, lease or rental, site stockholders, employees, and officers; its compliance with the Davis-Bacon improvements, site restoration, access (5) Research, development, and Act and the Cargo Preference Act. roads, and fencing; demonstration costs of readying an (g) The Applicant, the Borrower or the (2) Costs of engineering, architectural, innovative technology for employment Project Sponsor must estimate, legal and bond fees, and insurance paid in a commercial project; calculate, record, and provide to DOE in connection with construction of the (6) Costs that are excessive or are not any time DOE requests such information facility; directly required to carry out the and at the times provided in the Loan (3) Costs of equipment purchases, Eligible Project, as determined by DOE; Guarantee Agreement all costs incurred including a reasonable reserve of spare (7) Expenses incurred after startup, in the design, engineering, financing, parts to the extent required; commissioning, and shakedown before construction, startup, commissioning (4) Costs to provide facilities and the facility, or, in DOE’s discretion, any and shakedown of the Eligible Project in services related to safety and portion of the facility, has been placed accordance with generally accepted environmental protection; in service; accounting principles and practices. (5) Costs of financial, legal, and other (8) Borrower-paid Credit Subsidy professional services, including services Costs, the Administrative Cost of Issuing § 609.9 Lender servicing requirements. necessary to obtain required licenses a Loan Guarantee, and any other fee (a) When reviewing and evaluating a and permits and to prepare collected by DOE; and proposed Eligible Project, all Eligible environmental reports and data; (9) Operating costs. Lenders (other than the Federal (6) Costs of issuing Eligible Project Financing Bank) shall at all times debt, such as fees, transaction, and costs § 609.11 Fees and charges. exercise the level of care and diligence referred to in § 609.10(a)(5), and other (a) Unless explicitly authorized by that a reasonable and prudent lender customary charges imposed by Eligible statute, no funds obtained from the would exercise when reviewing, Lenders; Federal Government, or from a loan or evaluating and disbursing a loan made (7) Costs of necessary and appropriate other instrument guaranteed by the by it without a Federal guarantee. insurance and bonds of all types Federal Government, may be used to (b) Loan servicing duties shall be including letters of credit and any pay for the Credit Subsidy Cost, the performed by an Eligible Lender, DOE, collateral required therefor; Application Fee, the Facility Fee, the or another qualified loan servicer (8) Costs of design, engineering, Guarantee Fee, the maintenance fee and approved by DOE. When performing its startup, commissioning and shakedown; any other fees charged by or paid to servicing duties, the loan servicer shall (9) Costs of obtaining licenses to DOE relating to the Act or any at all times exercise the level of care and intellectual property necessary to Guarantee thereunder. diligence that a reasonable and prudent design, construct, and operate the (b) DOE may charge Applicants a non- lender would exercise when servicing a Eligible Project; refundable Facility Fee, with a portion loan made without a Federal guarantee, (10) To the extent being payable on or prior to the date on including: (i) Required by the Loan Guarantee which the Applicant executes the (1) During the construction period, Agreement and Commitment Letter and the remainder monitoring the satisfaction of all of the (ii) Not intended or available for any being payable on or prior to the closing conditions precedent to all loan cost referred to in § 609.10(b), date for the Loan Guarantee Agreement. disbursements, as provided in the Loan costs of funding any reserve fund, (c) In order to encourage and Guarantee Agreement, Loan Agreement including without limitation, a debt supplement private lending activity or related documents; service reserve, a maintenance reserve, DOE may collect from Borrowers for (2) During the operational phase, and a contingency reserve for cost deposit in the United States Treasury a monitoring and servicing the overruns during construction; provided non-refundable Risk-Based Charge Guaranteed Obligations and collection that proceeds of a Guaranteed Loan which, together with the interest rate on of the outstanding principal and deposited to any reserve fund shall not the Guaranteed Obligation that LPO accrued interest as well as undertaking be removed from such fund except to determines to be appropriate, will take to ensure that the collateral package pay Project Costs, to pay principal of the into account the prevailing rate of securing the Guaranteed Obligations Guaranteed Loan, or otherwise to be interest in the private sector for similar remains uncompromised; and used as provided in the Loan Guarantee loans and risks. The Risk-Based Charge (3) Until the Guaranteed Obligation Agreement; shall be paid at such times and in such has been repaid, providing annual or (11) Capitalized interest necessary to manner as may be determined by DOE, more frequent financial and other meet market requirements and other but no less frequently than once each reports on the status and condition of carrying costs during construction; and year, commencing with payment of a
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pro-rated payment on the date the Guarantee Agreement shall be solely for demand for payment complies in all Guarantee is issued. The amount of the the benefit of DOE (and such other respects with the terms of the applicable Risk-Based Charge will be specified in creditors as DOE may agree in writing). Guarantee. Interest shall accrue to the the Loan Guarantee Agreement. DOE may require, in its discretion, the Holder at the rate stated in the (d) DOE may collect a maintenance payment of an advance retainer to such promissory note evidencing the fee to cover DOE’s administrative independent consultants or outside Guaranteed Obligation, without giving expenses, other than extraordinary legal counsel as security for the effect to the Borrower’s default in expenses, incurred in servicing and collection of the fees and expenses making a required payment of principal monitoring a Loan Guarantee charged by the independent consultants or interest on the applicable Guarantee Agreement. The maintenance fee shall and outside legal counsel. In the event Obligation or any other default by the accrue from the date of execution of the an Applicant, Borrower or Project Borrower, until the Guaranteed Loan Guarantee Agreement through the Sponsor fails to comply with the Obligation has been fully paid by DOE. date of payment in full of the related provisions of such payment agreement, Payment by the Secretary on the Guaranteed Obligations. If DOE DOE in its discretion, may stop work on applicable Guarantee does not change determines to collect a maintenance fee, or terminate an Application, a Borrower’s obligations under the it shall be paid by the Borrower each Conditional Commitment or a Loan promissory note evidencing the year (or portion thereof) in advance in Guarantee Agreement, or may take such Guaranteed Obligation, Loan Guarantee the amount specified in the applicable other remedial measures in its Agreement, Loan Agreement or related Loan Guarantee Agreement. discretion as it deems appropriate. documents, including an obligation to (e) In the event a Borrower or an (h) DOE shall not be financially liable pay default interest. Eligible Project experiences difficulty under any circumstances to any (c) Following payment by the relating to technical, financial, or legal independent consultant or outside Secretary pursuant to the applicable matters or other events (e.g., engineering counsel for services rendered in Guarantee, upon demand by DOE, the failure or financial workouts), the connection with an Application, Holder shall transfer and assign to the Borrower shall be liable as follows: Conditional Commitment or Loan Secretary (or his designee or agent) the (1) If such difficulty requires DOE to Guarantee Agreement except to the promissory note evidencing the incur time or expenses beyond those extent DOE has previously entered into Guaranteed Obligation, all rights and customarily expended to monitor and an express written agreement to pay for interests of the Holder in the administer performing loans, DOE may such services. Guaranteed Obligation, and all rights collect an extraordinary expenses fee and interests of the Holder in respect of from the Borrower that will reimburse § 609.12 Full faith and credit and the Guaranteed Obligation, except to the DOE for such time and expenses, as incontestability. extent that the Secretary determines that determined by DOE; and The full faith and credit of the United such promissory note or any of such (2) For all fees and expenses of DOE’s States is pledged to the payment of rights and interests shall not be independent consultants and outside principal and interest of Guaranteed transferred and assigned to the counsel, to the extent that such fees and Obligations pursuant to Guarantees Secretary. Such transfer and assignment expenses are elected to be paid by DOE issued in accordance with the Act and shall include, without limitation, all of notwithstanding the provisions of this Part. The issuance by DOE of a the liens, security and collateral rights paragraphs (f) and (g) of this section. Guarantee shall be conclusive evidence of the Holder (or his designee or agent) (f) Each Applicant, Borrower or that it has been properly obtained; that in respect of the Guaranteed Obligation. Project Sponsor, as applicable, shall be the underlying loan qualified for such (d) Following payment by the responsible for the payment of all fees Guarantee; and that, but for fraud or Secretary pursuant to a Guarantee or and expenses charged by DOE’s material misrepresentation by the other default of a Guaranteed independent consultants and outside Holder, such Guarantee shall be legal, Obligation, the Secretary is authorized legal counsel in connection with an valid, binding and enforceable against to protect and foreclose on the Application, Conditional Commitment DOE in accordance with its terms. collateral, take action to recover costs or Loan Guarantee Agreement, as incurred by, and all amounts owed to, applicable. Upon making a § 609.13 Default, demand, payment, and the United States as a result of the determination to engage independent foreclosure on collateral. defaulted Guarantee Obligation, and consultants or outside counsel with (a) If a Borrower defaults in making a take such other action necessary or respect to an Application, DOE will required payment of principal or appropriate to protect the interests of proceed to evaluate and process such interest on a Guaranteed Obligation and the United States. In respect of any such Application only following execution by such default has not been cured within authorized actions that involve a an Applicant or Project Sponsor, as the applicable grace period, the Holder judicial proceeding or other judicial appropriate, of an agreement satisfactory may make written demand for payment action, the Secretary shall act through to DOE to pay the fees and expenses upon the Secretary in accordance with the Attorney General. The foregoing charged by the independent consultants the terms of the applicable Guarantee. If provisions of this paragraph shall not and outside legal counsel. Appropriate a Borrower defaults in making a relieve the Secretary from its obligations provisions regarding payment of such required payment of principal or pursuant to any applicable Intercreditor fees and expenses shall also be included interest on a Guaranteed Obligation and Agreement. Nothing in this paragraph in each Term Sheet and Loan Guaranty such default has not been cured within shall limit the Secretary from exercising Agreement or, upon a determination by the applicable grace period, the any rights or remedies pursuant to the DOE, in other appropriate agreements. Secretary shall notify the Attorney terms of the Loan Guarantee Agreement. (g) Notwithstanding payment by General. (e) The cash proceeds received as a Applicant, Borrower or Project Sponsor, (b) Subject to the terms of the result of any foreclosure on the all services rendered by an independent applicable Guarantee, the Secretary collateral or other action, shall be consultant or outside legal counsel to shall make payment within 60 days after distributed in accordance with the Loan DOE in connection with an Application, receipt of written demand for payment Guarantee Agreement (subject to any Conditional Commitment or Loan from the Holder, provided that the applicable Intercreditor Agreement).
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(f) The Loan Guarantee Agreement deficiencies due under the Guaranteed Bank where loans are funded by the shall provide that cash proceeds Obligation, the Secretary may take such Federal Financing Bank or other Holder received by the Secretary (or his action as he determines to be or other party servicing the Guaranteed designee or agent) as a result of any appropriate under the circumstances. Obligations, as applicable, and the foreclosure on the collateral or other (i) Nothing in this part precludes, nor Borrower, shall keep such records action shall be applied in the following shall any provision of this part be concerning the Eligible Project as are order of priority: construed to preclude, the Secretary necessary, including the Application, (1) Toward the pro rata payment of from purchasing any collateral or Term Sheet, Conditional Commitment, any costs and expenses (including Holder’s or other person’s interest in the Loan Guarantee Agreement, Credit unpaid fees, fees and expenses of Eligible Project upon foreclosure of the Agreement, mortgage, note, counsel, contractors and agents, and collateral. disbursement requests and supporting liabilities and advances made or (j) Nothing in this part precludes, nor documentation, financial statements, incurred) of the Secretary, the Attorney shall any provision of this part be audit reports of independent accounting General, the Holder, a collateral agent or construed to preclude, forbearance by firms, lists of all Eligible Project assets other responsible person of any of them any Holder with the consent of the and non-Eligible Project assets pledged (solely in their individual capacities as Secretary for the benefit of the Borrower in respect of the Guaranteed such and not on behalf of or for the and the United States. Obligations, all off-take and other benefit of their principals), incurred in (k) The Holder and the Secretary may revenue producing agreements, connection with any authorized action agree to a formal or informal plan of documentation for all Eligible Project following payment by the Secretary reorganization in respect of the indebtedness, income tax returns, pursuant to a Guarantee or other default Borrower, to include a restructuring of technology agreements, documentation of a Guaranteed Obligation, or as the Guaranteed Obligation and other for all permits and regulatory approvals otherwise permitted under the Loan applicable debt of the Borrower on such and all other documents and records Agreement or Loan Guarantee terms and conditions as the Secretary relating to the Borrower or the Eligible Agreement. determines are in the best interest of the Project, as determined by the Secretary, (2) To pay all accrued and unpaid fees United States. to facilitate an effective audit and due and payable to the Secretary, the § 609.14 Preservation of collateral. performance evaluation of the Eligible Attorney General, the Holder, a Project; and collateral agent or other responsible (a) If the Secretary exercises his right (b) The Secretary and the Comptroller person of any of them on a pro rata basis under the Loan Guarantee Agreement to General, or their duly authorized in respect of the Guaranteed Obligation; require the holder of pledged collateral representatives, shall have access, for (3) To pay all accrued and unpaid to take such actions as the Secretary the purpose of audit and examination, interest due and payable to the (subject to any applicable Intercreditor to any pertinent books, documents, Secretary, the Attorney General, the Agreement) may reasonably require to papers and records of the Borrower, Holder, a collateral agent or other provide for the care, preservation, Eligible Lender or DOE or other Holder responsible person of any of them on a protection, and maintenance of such or other party servicing the Guaranteed pro rata basis in respect of the collateral so as to enable the United Obligation, as applicable. Such Guaranteed Obligation; States to achieve maximum recovery inspection may be made during regular (4) To pay all unpaid principal of the from the collateral, the Secretary shall, office hours of the Borrower, Eligible Guaranteed Obligation; subject to compliance with the Lender or DOE or other Holder, or other (5) To pay all other obligations of the Antideficiency Act, 31 U.S.C. 1341 et party servicing the Eligible Project and Borrower under the Loan Guarantee seq., reimburse the holder of such the Guaranteed Obligations, as Agreement, the Loan Agreement and collateral for reasonable and appropriate applicable, or at any other time related documents that are remaining expenses incurred in taking actions mutually convenient. after giving effect to the preceding required by the Secretary (unless provisions and are then due and otherwise provided in applicable § 609.16 Deviations. payable; and agreements). Except as provided in (a) To the extent that the requirements (6) To pay to the Borrower, or its § 609.13, no party may waive or under this part are not specified by the successors and assigns, or as a court of relinquish, without the consent of the Act or other applicable statutes, DOE competent jurisdiction may direct, any Secretary, any such collateral to which may authorize deviations from the cash proceeds then remaining following the United States would be subrogated requirements of this part upon: the application of all payment described upon payment under the Loan (1) Either (A) receipt from the above. Guarantee Agreement. Applicant, Borrower or Project Sponsor, (g) No action taken by the Holder or (b) In the event of a default, the as applicable, of— its agent or designee in respect of any Secretary may enter into such contracts (i) A written request that the Secretary collateral will affect the rights of any as he determines are required or deviate from one or more requirements, person, including the Secretary, having appropriate, taking into account the and an interest in the Guaranteed term of any applicable Intercreditor (ii) A supporting statement briefly Obligations or other debt obligations, to Agreement, to care for, preserve, protect describing one or more justifications for pursue, jointly or severally, legal action or maintain collateral pledged in respect such deviation, or against the Borrower or other liable of Guaranteed Obligations. The cost of (iii)(B) a determination by the persons, for any amounts owing in such contracts may be charged to the Secretary in his discretion to undertake respect of the Guaranteed Obligation or Borrower. a deviation; other applicable debt obligations. (2) A finding by the Secretary that (h) In the event that the Secretary § 609.15 Audits and access to records. such deviation supports program considers it necessary or desirable to Each Loan Guarantee Agreement and objectives and the special circumstances protect or further the interest of the related documents shall provide that: stated in the request make such United States in connection exercise of (a) The Eligible Lender, or DOE in deviation clearly in the best interest of rights as a lien holder or recovery of conjunction with the Federal Financing the Government; and
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(3) If the waiver would constitute a • Fax: 202–493–2251. Discussion substantial change in the financial terms • Mail: U.S. Department of The European Aviation Safety Agency of the Loan Guarantee Agreement and Transportation, Docket Operations, M– (EASA), which is the Technical Agent related documents, consultation by DOE 30, West Building Ground Floor, Room for the Member States of the European with OMB and the Secretary of the W12–140, 1200 New Jersey Avenue SE., Union, has issued EASA AD 2016–0107, Treasury. Washington, DC 20590. dated June 7, 2016, to correct an unsafe (b) If a deviation under this section • Hand Delivery: Deliver to Mail condition for certain Airbus Model results in an increase in the applicable address above between 9 a.m. and 5 A330–200 Freighter, –200 and –300 Credit Subsidy Cost, such increase shall p.m., Monday through Friday, except series airplanes; and Airbus Model be funded either by additional fees paid Federal holidays. A340–200, –300, –500, and –600 series by or on behalf of the Borrower or, if an For service information identified in airplanes. The MCAI states: appropriation is available by means of this NPRM, contact Airbus SAS, an appropriations act. The Secretary has Some events of depressurisation of Airworthiness Office—EAL, 1 Rond discretion to determine how the cost of hydraulic reservoirs have been reported, due Point Maurice Bellonte, 31707 Blagnac to air leakage from the HR PRV [hydraulic a deviation is funded. Cedex, France; telephone: +33 5 61 93 reservoir pressure relief valve]. The results of [FR Doc. 2016–23268 Filed 9–30–16; 8:45 am] 36 96; fax: +33 5 61 93 45 80; email: the investigations revealed that the air BILLING CODE 6450–01–P [email protected]; leakage was due to the extrusion of the O- ring seal from the HR PRV. This may have Internet: http://www.airbus.com. happened during HR maintenance, testing or Examining the AD Docket during flight, if HR over-filling was DEPARTMENT OF TRANSPORTATION performed, as a result of which hydraulic You may examine the AD docket on fluid could pass through the PRV, causing Federal Aviation Administration the Internet at http:// [the] PRV seal to migrate from its nominal www.regulations.gov by searching for position, leading to loss of HR pressurisation. 14 CFR Part 39 and locating Docket No. FAA–2016– This condition, if not detected and corrected, could lead to the loss of one or [Docket No. FAA–2016–9117; Directorate 9117; or in person at the Docket more hydraulic systems, possibly resulting in Identifier 2016–NM–095–AD] Management Facility between 9 a.m. loss of control of the aeroplane. RIN 2120–AA64 and 5 p.m., Monday through Friday, Prompted by these findings, Airbus issued except Federal holidays. The AD docket Alert Operators Transmission (AOT) Airworthiness Directives; Airbus contains this proposed AD, the A29L005–16 [dated January 28, 2016] to Airplanes regulatory evaluation, any comments provide inspection instructions. received, and other information. The For the reasons described above, this AGENCY: Federal Aviation street address for the Docket Operations [EASA] AD requires repetitive inspections of Administration (FAA), DOT. office (telephone: 800–647–5527) is in the HR fluid level of each hydraulic circuit ACTION: Notice of proposed rulemaking and, depending on findings, accomplishment the ADDRESSES section. Comments will of applicable corrective action(s). This (NPRM). be available in the AD docket shortly [EASA] AD also requires actions when after receipt. SUMMARY: We propose to adopt a new maintenance action is accomplished on airworthiness directive (AD) for certain FOR FURTHER INFORMATION CONTACT: hydraulic reservoirs. Vladimir Ulyanov, Aerospace Engineer, This [EASA] AD is considered as interim A330–200 Freighter, –200 and –300 action and further [EASA] AD action may series airplanes; and Airbus Model International Branch, ANM–116, follow. A340–200, –300, –500, and –600 series Transport Airplane Directorate, FAA, airplanes. This proposed AD was 1601 Lind Avenue SW., Renton, WA Required actions include repetitive prompted by reports of certain 98057–3356; telephone: 425–227–1138; inspection of the hydraulic fluid levels hydraulic reservoirs (HRs) becoming fax: 425–227–1149. and nitrogen gas pressure in the HR for each hydraulic circuit, and if necessary, depressurized due to air leakage from SUPPLEMENTARY INFORMATION: the HR pressure relief valve (PRV). This adjustment of the fluid level(s) and proposed AD would require repetitive Comments Invited nitrogen pressure in affected HRs. You may examine the MCAI in the AD inspections of the hydraulic fluid levels We invite you to send any written and nitrogen gas pressure in the HR for docket on the Internet at http:// relevant data, views, or arguments about www.regulations.gov by searching for each hydraulic circuit, and if necessary, this proposed AD. Send your comments adjustment of the fluid level(s) and and locating Docket No. FAA–2016– to an address listed under the 9117. nitrogen pressure in affected HRs. We ADDRESSES section. Include ‘‘Docket No. are proposing this AD to detect and FAA–2016–9117; Directorate Identifier Related Service Information Under 1 correct air leakage from the HR PRV, 2016–NM–095–AD’’ at the beginning of CFR Part 51 which could lead to the loss of one or your comments. We specifically invite We reviewed Airbus Alert Operators more hydraulic systems, with the comments on the overall regulatory, Transmission (AOT) A29L005–16, possible result of loss of control of the economic, environmental, and energy Revision 01, dated June 28, 2016. This airplane. aspects of this proposed AD. We will service information describes DATES: We must receive comments on consider all comments received by the procedures for inspecting hydraulic this proposed AD by November 17, closing date and may amend this fluid levels and nitrogen gas pressure in 2016. proposed AD based on those comments. certain HRs, and adjustment of the fluid ADDRESSES: You may send comments, We will post all comments we level(s) and nitrogen pressure in using the procedures found in 14 CFR receive, without change, to http:// affected HRs. This service information is 11.43 and 11.45, by any of the following www.regulations.gov, including any reasonably available because the methods: personal information you provide. We interested parties have access to it • Federal eRulemaking Portal: Go to will also post a report summarizing each through their normal course of business http://www.regulations.gov. Follow the substantive verbal contact we receive or by the means identified in the instructions for submitting comments. about this proposed AD. ADDRESSES section.
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FAA’s Determination and Requirements Design Authority, we have been notified develop on other products of these same of This Proposed AD of the unsafe condition described in the type designs. MCAI and service information Costs of Compliance This product has been approved by referenced above. We are proposing this the aviation authority of another AD because we evaluated all pertinent We estimate that this proposed AD country, and is approved for operation information and determined an unsafe affects 101 airplanes of U.S. registry. in the United States. Pursuant to our condition exists and is likely to exist or We estimate the following costs to bilateral agreement with the State of comply with this proposed AD:
ESTIMATED COSTS
Cost per Cost on U.S. Action Labor cost Parts cost product operators
Inspection ...... 1 work-hour × $85 per hour = $85 per inspection cycle ...... $0 $85 per inspection $8,585 per inspec- cycle. tion cycle.
We estimate the following costs to do required based on the results of the determining the number of airplanes any necessary servicing that would be proposed inspection. We have no way of that might need this servicing:
ON-CONDITION COSTS
Cost per Action Labor cost Parts cost product
Adding or Removing Hydraulic Fluid or Nitrogen Gas ...... 1 work-hour × $85 per hour = $85 $0 $85
Authority for This Rulemaking 2. Is not a ‘‘significant rule’’ under the (c) Applicability Title 49 of the United States Code DOT Regulatory Policies and Procedures This AD applies to Airbus Model A330– specifies the FAA’s authority to issue (44 FR 11034, February 26, 1979); 201, –202, –203, –223, –223F, –243, –243F, 3. Will not affect intrastate aviation in rules on aviation safety. Subtitle I, –301, –302, –303, –321, –322, –323, –341, Alaska; and –342 and –343 airplanes, and Airbus A340– section 106, describes the authority of 4. Will not have a significant 211, –212, –213, –311, –312, –313, –541, and the FAA Administrator. ‘‘Subtitle VII: economic impact, positive or negative, –642 airplanes, certificated in any category, Aviation Programs,’’ describes in more on a substantial number of small entities all airplanes that are fitted with a hydraulic detail the scope of the Agency’s under the criteria of the Regulatory reservoir (HR) pressure relief valve (PRV) authority. Flexibility Act. part number 42F0026 installed on We are issuing this rulemaking under TECHSPACE HR having part number the authority described in ‘‘Subtitle VII, List of Subjects in 14 CFR Part 39 42F1005, 42F1203, 42F1304, 42F1412, Part A, Subpart III, Section 44701: Air transportation, Aircraft, Aviation 42F1512, or 42F1607. General requirements.’’ Under that safety, Incorporation by reference, (d) Subject section, Congress charges the FAA with Safety. promoting safe flight of civil aircraft in Air Transport Association (ATA) of America Code 29, Hydraulic power. air commerce by prescribing regulations The Proposed Amendment for practices, methods, and procedures Accordingly, under the authority (e) Reason the Administrator finds necessary for delegated to me by the Administrator, This AD was prompted by reports of safety in air commerce. This regulation the FAA proposes to amend 14 CFR part certain hydraulic reservoirs (HRs) becoming is within the scope of that authority 39 as follows: depressurized due to air leakage from the HR because it addresses an unsafe condition pressure relief valve (PRV). We are issuing that is likely to exist or develop on PART 39—AIRWORTHINESS this AD to detect and correct air leakage from products identified in this rulemaking DIRECTIVES the HR PRV, which could lead to the loss of action. one or more hydraulic systems, with the ■ 1. The authority citation for part 39 possible result of loss of control of the Regulatory Findings continues to read as follows: airplane. We determined that this proposed AD Authority: 49 U.S.C. 106(g), 40113, 44701. (f) Compliance would not have federalism implications § 39.13 [Amended] Comply with this AD within the under Executive Order 13132. This compliance times specified, unless already ■ proposed AD would not have a 2. The FAA amends § 39.13 by adding done. substantial direct effect on the States, on the following new airworthiness directive (AD): (g) Inspect Fluid Level and Nitrogen the relationship between the national Pressure in Hydraulic Reservoir Government and the States, or on the Airbus: Docket No. FAA–2016–9117; distribution of power and Directorate Identifier 2016–NM–095–AD. Within the compliance time defined in table 1 to paragraph (g) of this AD, as responsibilities among the various (a) Comments Due Date applicable, inspect the HR fluid level and levels of government. We must receive comments by November nitrogen pressure of each hydraulic circuit in For the reasons discussed above, I 17, 2016. accordance with the instructions of certify this proposed regulation: paragraph 4.2.2.1 of Airbus Alert Operators 1. Is not a ‘‘significant regulatory (b) Affected ADs Transmission (AOT) A29L005–16, Revision action’’ under Executive Order 12866; None. 01, dated June 28, 2016. Repeat the
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inspection thereafter at intervals not to Branch, ANM–116, Transport Airplane DEPARTMENT OF TRANSPORTATION exceed 1,600 flight hours. Directorate, FAA, has the authority to approve AMOCs for this AD, if requested Office of the Secretary TABLE 1 TO PARAGRAPH (g) OF THIS using the procedures found in 14 CFR 39.19. AD—INITIAL INSPECTION COMPLI- In accordance with 14 CFR 39.19, send your 14 CFR Part 382 request to your principal inspector or local ANCE TIME [Docket No. DOT–OST–2015–0246] Flight Standards District Office, as Compliance Time (A or B, whichever appropriate. If sending information directly RIN 2105–AE12 occurs later) to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, Nondiscrimination on the Basis of A ...... Before accumulating 1,600 flight International Branch, ANM–116, Transport Disability in Air Travel: Negotiated hours since first flight of the air- Airplane Directorate, FAA, 1601 Lind Rulemaking Committee Sixth Meeting plane. Avenue SW., Renton, WA 98057–3356; B ...... Within 1,000 flight hours or 3 AGENCY: Office of the Secretary, telephone: 425–227–1138; fax: 425–227– months, whichever occurs first Department of Transportation. 1149. Information may be emailed to: 9- after the effective date of this ACTION: Notice of sixth public meeting AD. [email protected]. Before using any approved AMOC, notify of advisory committee. your appropriate principal inspector, or (h) Corrective Action SUMMARY: This notice announces the lacking a principal inspector, the manager of If, during any inspection required by the local flight standards district office/ sixth meeting of the Advisory paragraph (g) of this AD, any unacceptable Committee on Accessible Air pressure or fluid level is identified, before certificate holding district office. (2) Contacting the Manufacturer: For any Transportation (ACCESS Advisory further flight, do the actions in paragraphs Committee). (h)(1) and (h)(2) of this AD, as applicable, for requirement in this AD to obtain corrective each unacceptable pressure or fluid level that actions from a manufacturer, the action must DATES: The sixth meeting of the is discovered. Accomplishment of these be accomplished using a method approved ACCESS Advisory Committee will be actions on an airplane does not constitute by the Manager, International Branch, ANM– held on October 12–14, 2016, from 9:00 terminating action for the repetitive 116, Transport Airplane Directorate, FAA; or a.m. to 5:00 p.m., Eastern Daylight inspections as required by paragraph (g) of the European Aviation Safety Agency this AD for that airplane. Time. (EASA); or Airbus’s EASA Design (1) Add or remove hydraulic fluid, as ADDRESSES: The meeting will be held at applicable, in accordance with the Organization Approval (DOA). If approved by the DOA, the approval must include the the Hilton Arlington, 950 N. Stafford St., instructions of paragraph 4.2.2.2 of Airbus Arlington, VA 22203. Attendance is Alert Operators Transmission (AOT) DOA-authorized signature. A29L005–16, Revision 01, dated June 28, open to the public up to the room’s 2016. (m) Related Information capacity of 150 attendees. Since space is (2) Add or remove nitrogen gas, as (1) Refer to Mandatory Continuing limited, any member of the general applicable, in accordance with the Airworthiness Information (MCAI) EASA AD public who plans to attend this meeting instructions of paragraph 4.2.2.2 of Airbus 2016–0107, dated June 7, 2016, for related must notify the registration contact Alert Operators Transmission (AOT) information. This MCAI may be found in the identified below no later than October 5, A29L005–16, Revision 01, dated June 28, AD docket on the Internet at http:// 2016. 2016. www.regulations.gov by searching for and FOR FURTHER INFORMATION CONTACT: To (i) Servicing Hydraulic Reservoir locating Docket No. FAA–2016–9117. register to attend the meeting, please Concurrent with the initial inspection (2) For service information identified in contact Kyle Ilgenfritz (kilgenfritz@ specified in paragraph (g) of this AD, revise this AD, contact Airbus SAS, Airworthiness linkvisum.com; 703–442–4575 the maintenance or inspection program, as Office—EAL, 1 Rond Point Maurice Bellonte, extension 128). For other information, applicable, to incorporate the hydraulic 31707 Blagnac Cedex, France; telephone: +33 please contact Livaughn Chapman or reservoir servicing actions specified in 5 61 93 36 96; fax: +33 5 61 93 45 80; email: paragraph 4.2.2.2 of Airbus Alert Operators Vinh Nguyen, Office of the Aviation [email protected]; Transmission (AOT) A29L005–16, Revision Enforcement and Proceedings, U.S. 01, dated June 28, 2016. Internet: http://www.airbus.com. You may Department of Transportation, by email view this service information at the FAA, (j) No Alternative Actions and Intervals at [email protected] or Transport Airplane Directorate, 1601 Lind [email protected] or by telephone at After accomplishing the revision required Avenue SW., Renton, WA. For information 202–366–9342. by paragraph (i) of this AD, no alternative on the availability of this material at the actions (e.g., inspections) and intervals may FAA, call 425–227–1221. SUPPLEMENTARY INFORMATION: be used unless the actions and intervals are approved as an alternative method of Issued in Renton, Washington, on I. Sixth Public Meeting of the ACCESS compliance (AMOC) in accordance with the September 26, 2016. Committee procedures specified in paragraph (l)(1) of Dionne Palermo, The sixth meeting of the ACCESS this AD. Acting Manager, Transport Airplane Advisory Committee will be held on (k) Credit for Previous Actions Directorate, Aircraft Certification Service. October 12–14, 2016, from 9:00 a.m. to This paragraph provides credit for actions [FR Doc. 2016–23786 Filed 9–30–16; 8:45 am] 5:00 p.m., Eastern Daylight Time. The meeting will be held at the Hilton required by paragraphs (g) and (h) of this AD, BILLING CODE 4910–13–P if those actions were performed before the Arlington, 950 N. Stafford St., effective date of this AD using Airbus Alert Arlington, VA 22203. At the meeting, Operators Transmission (AOT) A29L005–16, the ACCESS Advisory Committee will dated January 28, 2016. continue to address whether to require (l) Other FAA AD Provisions accessible inflight entertainment (IFE) The following provisions also apply to this and strengthen accessibility AD: requirements for other in-flight (1) Alternative Methods of Compliance communications, whether to require an (AMOCs): The Manager, International accessible lavatory on new single-aisle
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aircraft over a certain size, and whether click the link to ‘‘Open Docket Folder’’ LIBRARY OF CONGRESS to amend the definition of ‘‘service and choose the document to review. If animals’’ that may accompany you do not have access to the Internet, U.S. Copyright Office passengers with a disability on a flight. you may view the docket online by We expect to negotiate and vote on visiting the Docket Management Facility 37 CFR Parts 201, 202, 203, 204, 205, proposals to amend the Department’s in Room W12–140 on the ground floor 210, 211, 212, 253, 255, 258, 260, 261, disability regulation regarding one or of the DOT West Building, 1200 New 262, 263, and 270 more of these issues. Prior to the Jersey Avenue SE., Washington, DC [Docket No. 2016–5] meeting, the agenda will be available on 20590, between 9 a.m. and 5 p.m., E.T., the ACCESS Advisory Committee’s Web Monday through Friday, except Federal Copyright Office Technical site, www.transportation.gov/access- holidays. Amendments advisory-committee. Information on how to access advisory committee IV. ACCESS Advisory Committee AGENCY: U.S. Copyright Office, Library documents via the FDMC is contained Charter of Congress. in Section III, below. ACTION: Notice of proposed rulemaking. The meeting will be open to the The ACCESS Advisory Committee is public. Attendance will be limited by established by charter in accordance SUMMARY: The U.S. Copyright Office is the size of the meeting room (maximum with the Federal Advisory Committee proposing to amend its regulations 150 attendees). Because space is limited, Act (FACA), 5 U.S.C. App. 2. Secretary governing registration, recordation, we ask that any member of the public of Transportation Anthony Foxx licensing, and other services that the Office provides. The amendments will who plans to attend the meeting notify approved the ACCESS Advisory improve the quality of the Office’s the registration contact, Kyle Ilgenfritz Committee charter on April 6, 2016. The regulations by updating cross-references ([email protected]; 703–442– committee’s charter sets forth policies 4575 extension 128) at Linkvisum, no to the Copyright Act and the Office’s for the operation of the advisory regulations, replacing outdated later than October 5, 2016. At the committee and is available on the discretion of the facilitator and the terminology, reflecting structural Department’s Web site at Committee and time permitting, changes to the Office and its senior www.transportation.gov/office-general- members of the public are invited to management, eliminating expired or counsel/negotiated-regulations/charter. contribute to the discussion and provide obsolete provisions, and correcting oral comments. V. Privacy Act nonsubstantive errors. While these amendments are intended to be II. Submitting Written Comments In accordance with 5 U.S.C. 553(c), technical in nature, out of an abundance Members of the public may submit DOT solicits comments from the public of caution, the Office is publishing the written comments on the topics to be to better inform its rulemaking process. proposed regulations for public considered during the meeting by DOT posts these comments, without comment. October 6, 2016, to FDMC, Docket edit, including any personal information DATES: Written comments must be Number DOT–OST–2015–0246. You the commenter provides, to received no later than 11:59 p.m. may submit your comments and www.regulations.gov, as described in Eastern Time on November 2, 2016. material online or by fax, mail, or hand the system of records notice (DOT/ALL– ADDRESSES: The Copyright Office is delivery, but please use only one of 14 FDMS), which can be reviewed at using the regulations.gov system for the these means. DOT recommends that you www.dot.gov/privacy. submission and posting of public include your name and a mailing comments in this proceeding. All address, an email address, or a phone VI. Federal Advisory Committee Act comments are therefore to be submitted number in the body of your document electronically through regulations.gov. so that DOT can contact you if there are Notice of this meeting is being provided in accordance with the Federal Specific instructions for submitting questions regarding your submission. comments are available on the To submit your comment online, go to Advisory Committee Act and the Copyright Office Web site at http:// http://www.regulations.gov, put the General Services Administration copyright.gov/rulemaking/ docket number, DOT–OST–2015–0246, regulations covering management of 2016technicalamendments/index.html. in the keyword box, and click ‘‘Search.’’ Federal advisory committees. See 41 If electronic submission of comments is When the new screen appears, click on CFR part 102–3. not feasible, please contact the Office the ‘‘Comment Now!’’ button and type Issued under the authority of delegation in using the contact information below for your comment into the text box on the 49 CFR 1.27(n). special instructions. following screen. Choose whether you are submitting your comment as an Dated: September 27, 2016. FOR FURTHER INFORMATION CONTACT: individual or on behalf of a third party Molly J. Moran, Sarang V. Damle, General Counsel and and then submit. If you submit your Acting General Counsel. Associate Register of Copyrights, sdam@ comments by mail or hand delivery, [FR Doc. 2016–23834 Filed 9–30–16; 8:45 am] loc.gov; Regan A. Smith, Associate submit them in an unbound format, no General Counsel, [email protected]; or Erik BILLING CODE 4910–9X–P Bertin, Deputy Director of Registration larger than 81⁄2 by 11 inches, suitable for copying and electronic filing. Policy and Practice, [email protected]. Each person can be reached by III. Viewing Comments and Documents telephone at 202–707–8040. To view comments and any SUPPLEMENTARY INFORMATION: The U.S. documents mentioned in this preamble Copyright Office (the ‘‘Office’’) is as being available in the docket, go to proposing to make a series of technical www.regulations.gov. Enter the docket amendments (the proposed ‘‘Rule’’) that number, DOT–OST–2015–0246, in the address certain inconsistencies and keyword box, and click ‘‘Search.’’ Next, inaccuracies in parts 201, 202, 203, 204,
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205, 210, 211, 212 and subchapter B of Additionally, when referring to the Regulations. By way of example, the title 37 of the Code of Federal Office’s Web site, the proposed rule proposed rule corrects a cross-reference Regulations. Specifically, the proposed replaces the term ‘‘homepage’’ with the relating to the deposit requirements for rule makes technical changes to term ‘‘Web site.’’ certain sculptural works to make clear regulations governing registration, In the interest of consistency, the the Office’s practice of allowing recordation, and licensing. These proposed rule also removes the initials applicants, under certain circumstances, changes include the removal of expired ‘‘U.S.’’ from certain provisions that refer to submit a single copy of a board game or obsolete provisions that no longer to the ‘‘U.S. Copyright Office.’’ Finally, (rather than two copies) instead of a serve any purpose, such as regulations the proposed rule clarifies that checks, photograph, as set forth in 37 CFR issued under the now-defunct Copyright money orders, or other fees submitted to 202.20(c)(2)(i)(G) and (c)(2)(xi)(B). Arbitration Royalty Panel system. It also the Office should be made payable to V. Updated Terminology proposes technical changes to the the ‘‘U.S. Copyright Office,’’ rather than regulations for submitting requests the ‘‘Register of Copyrights.’’ See, e.g., The proposed rule reflects a number under the Freedom of Information Act 37 CFR 201.6, 201.33(e)(2)(i), of changes in terminology. These and the Privacy Act, the procedures for 201.39(g)(3)(i). changes replace outdated terms that are serving legal process on the Office, and no longer used by the Office, but they the regulations governing the Office’s II. Compendium of U.S. Copyright do not represent a substantive change in general operations. Office Practices policy. For example, the Office now While the amendments are self- The Compendium of U.S. Copyright uses the term ‘‘applicant’’ when explanatory, for convenience, the Office Office Practices, Third Edition, referring to a person who submits an has summarized them in seven published in December 2014, is the application for registration, and uses the categories below. administrative manual of the Register of term ‘‘remitter’’ when referring to a Copyrights concerning the statutory person who submits a document for I. Reorganization of the U.S. Copyright recordation. The proposed rule adds Office duties of the Copyright Office under title 17 of the United States Code. It these terms where they are missing from The Register of Copyrights has serves as both a technical manual for the the regulations. The proposed rule also reorganized the administrative divisions Office’s staff and a guidebook for replaces the term ‘‘certificate of record’’ of the Office in the last few years. The authors, copyright licensees, with ‘‘certificate of recordation,’’ Register appointed a Chief Information practitioners, scholars, the courts, and ‘‘Visual Arts Regulatory Statements’’ Officer (‘‘CIO’’) to serve as her primary members of the general public.1 The with ‘‘Visual Arts Registry Statements,’’ advisor on information technology, and proposed rule clarifies the means for ‘‘vessel hulls’’ with ‘‘vessel designs,’’ a Director of the Copyright Technology viewing and obtaining copies of the and ‘‘restored works’’ to ‘‘restored Office, who supervises the day-to-day Third Edition, as well as prior editions copyright.’’ It also removes references to maintenance of the Office’s registration of the Compendium, set forth in 37 CFR information provided ‘‘on the and recordation systems. 201.2(b)(7). application’’ for deposit accounts and The Register also divided the former the term ‘‘preregistration.’’ Finally, the Information and Records Division into III. Grammatical Amendments proposed rule updates the name of Form the Office of Public Records and The proposed rule corrects errors in SC from ‘‘Statement of Account for Repositories (‘‘PRR’’) and Office of spelling, capitalization, punctuation, Secondary Transmissions by Satellite Public Information and Education spacing, and numbering, and addresses Carriers to Home Viewers’’ in (‘‘PIE’’). PRR, headed by an expert in inconsistencies in the use of § 201.11(d)(2) to ‘‘Statement of Account public administration, includes the abbreviations, symbols, time periods, for Secondary Transmissions by Recordation Section, the Records and italics. For example, the proposed Satellite Carriers of Distant Television Management Section, and the Records rule revises 37 CFR 201.4 to reflect that Signals.’’ Research and Certification Section. PIE registrations issued under the 1909 Act VI. Improved Readability and Style is headed by an Associate Register of may contain a prefix consisting of one Copyrights and includes the or two letters (e.g., E, EU, F, G, K, etc.) Consistent with the Office’s Publications Section and the Copyright as opposed to ‘‘a two- or three-letter longstanding policy,2 the proposed rule Information Section. prefix,’’ and corrects the word ‘‘or’’ to replaces gender-specific references with The proposed rule reflects these ‘‘of’’ in the definition of ‘‘official gender-neutral references. The proposed developments by updating § 203.3 by certification.’’ rule also improves readability by providing titles of the Office’s senior renumbering certain provisions, by management and updated descriptions IV. Updated Citations and Cross- rewriting awkward phrases or for each division within the Office, References to the Copyright Act and the paragraphs, and by deleting redundant including the Office of the Register, the Code of Federal Regulations provisions that repeat what is stated Office of the General Counsel, the Office The proposed rule adopts the elsewhere in the same provision. For of Policy and International Affairs, the appropriate format for citing or cross- example, the Office’s regulations Office of Registration Policy and referencing other provisions of the Code governing Freedom of Information Act Practice, the Office of Public Records of Federal Regulations, as recommended policies in § 203.4(f) and (g) were and Repositories, the Office of Public by the Federal Register Document rewritten without substantive change to Information and Education, the Office of Drafting Handbook. It also reserves improve readability. In all cases, these the Chief Information Officer, and the §§ 201.15, 205.6 through 205.10, and changes are intended to clarify the Office of the Chief of Operations (which 205.14 through 205.20 for future use. includes the Receipt Analysis and In addition, the proposed rule revises 2 Arthur Levine, Memories of Barbara Ringer, Control Division, the Copyright erroneous cross-references to the Copyright Notices, Apr. 2009, at 3, 6 (noting that Acquisitions Division, and the Congress used male and female pronouns in the Copyright Act and the Code of Federal Copyright Act of 1976 at the request of Register of Licensing Division). It also provides Copyrights Barbara Ringer), available at http:// updated mailing addresses as set forth 1 See The Compendium of U.S. Copyright Office www.copyright.gov/docs/barabara-ringer-special- in 37 CFR 201.1(b)(2) and (c). Practices, 79 FR 78911 (Dec. 31, 2014). edition-2009-04.pdf.
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existing regulations, but do not URAA) 7 and describes the correct Accordingly, the Office is removing represent a substantive change in procedure for registering a restored obsolete CARP regulations, while policy. work. retaining parts 254 and 256 which Recordation of Notices of Intent to contain information related to coin- VII. Expired or Obsolete Provisions Enforce a Restored Work Under the operated phonorecord players and the The Office has identified a number of URAA. The proposed rule clarifies 37 cable compulsory license, respectively. provisions that have expired or have CFR 201.33 and 201.34, which explain However, the Office notes that these become obsolete. Because these that a list of parties that filed a Notice legacy rates and regulations will remain provisions no longer serve any purpose, of Intent to Enforce 8 a restored work accessible via past editions of the Code the Office is removing them from its under the URAA is available on the of Federal Regulations for any who may regulations. Office’s Web site, by removing outdated have need to consult them. In addition, Effective Date of Registration for instructions for logging onto the Office’s legacy regulations are available on the Registrations Issued in 1991. The Web site or for obtaining access to these Government Publishing Office’s Federal Copyright Fees and Technical records through terminals located in the Digital System (‘‘FDsys’’) at Amendments Act of 1989 increased the Office and reflecting reliance upon www.gpo.gov/fdsys. filing fee for registering a claim to email addresses rather than ‘‘telefax Statements of Account covering copyright from $10 to $20.3 The number[s].’’ compulsory licenses for secondary proposed rule eliminates a provision in Recordation of Voluntary Agreements transmissions by cable systems. The § 202.4 establishing a procedure for Between Copyright Owners and Public Office is removing the portions of assigning an effective date of Broadcasters. In accordance with § 201.17(i) that relate to filings covering registration for claims received between statutory changes that removed the prior the accounting periods in 1983 that January 3, 1991 and December 31, 1991 section 118(b)(2) from the Copyright were affected by the 1982 cable rate 14 that were submitted with an insufficient Act,9 and gave the Copyright Royalty adjustment, as the Office does not filing fee, as these dates have passed. Judges rather than the Register of expect to receive any additional filings Registration of Mask Works. The Copyrights authority over the statutory covering these accounting periods. proposed rule removes language in license in section 118,10 the Office is Similarly, the Office is removing § 211.4(b)(1) specifying that January 7, removing the obsolete regulatory § 201.17(m)(2)(iii), which applies only 1985 will be the effective date of provision at 37 CFR 201.9 relating to to statements for the 1978–1 accounting registration for applications to register recordation of voluntary agreements period, along with certain other mask works received before that date 4 between copyright owners and public references to pre-1978 activities in because any such applications have broadcasting entities 11 from the 201.17(e) and (f). Verification of a Statement of been processed by now. regulations. Account for secondary transmissions Recordation of Statements of Intent to IBM–PC Compatible Disks for Recording Documents Pertaining to made by cable systems and satellite Enforce Filed Under the North carriers. Effective November 18, 2014, American Free Trade Agreement. Computer Shareware. The Office is updating its administrative procedure in the Office implemented § 201.16, which Because the deadline for filing a sets forth procedures by which a ‘‘Statement of Intent’’ to reclaim 37 CFR 201.26(d)(4)for recording documents pertaining to computer copyright owner may audit a statement copyright protection for certain motion of account filed with the Office under pictures fixed or published in Canada or shareware to no longer indicate that 15 they be submitted on both paper and 17 U.S.C. 111(d)(1) or 119(b)(1). This Mexico that fell into the public domain regulation includes a provision in the United States due to a lack of a diskette; they will now be accepted without a diskette. The Office has outlining a procedure in the event the copyright notice under NAFTA expired Office received a notice of intent to on December 31, 1994,5 and because the recorded less than two dozen shareware documents since the final rule was audit a statement of account prior to the provision that authorized the Office to effective date of the section. See 37 CFR record these types of statements has adopted. Copyright Arbitration Royalty Panel 201.16(c)(7). Because the Office did not been removed from the statute, the in fact receive any notice of intent to proposed rule removes the Rules and Procedures. Subchapter B contains various regulations relating to audit prior to the effective date of the corresponding provision at 37 CFR section, that provision is now obsolete 201.31 from the regulations.6 the former Copyright Arbitration Royalty Panel or ‘‘CARP,’’ including and may be removed. Registration of Restored Works. The Statements of Account for digital legacy royalty rates for past accounting proposed rule removes outdated audio recording devices or media. periods, which certain regulations were language in § 201.31 related to a Section 201.28(c)(3) includes provisions phased out by the Copyright Royalty procedure for registering foreign works that solely concern Statements of and Distribution Reform Act of 2004.12 that were restored to copyright Account filed for the period covering The successor entity to the CARP, the protection under section 104A of the October 28, 1992 through the end of the Copyright Royalty Board, has issued its Copyright Act (as amended by the first accounting year for importers/ own set of rules and procedures.13 manufacturers of digital audio recording 3 Public Law 101–318, 104 Stat. 287, 287 (1990). devices. Because the Office does not 7 See Restoration of Certain Berne Works and 4 See Mask Work Protection; Implementation of WTO Works, 60 FR 50414 (Sept. 29, 1995); 17 expect to receive any additional filings the Semiconductor Chip Protection Act of 1984, 50 U.S.C. 104A(e). covering this accounting period, the FR 263 (Jan. 3, 1985); Mask Work Protection; 8 Implementation of the Semiconductor Chip 17 U.S.C. 104A(e). Office is removing this language. Protection Act of 1984, 50 FR 26714 (June 28, 1985). 9 Public Law 106–44, 113 Stat. 221, 222 (1999). 5 See Public Law 103–182, 107 Stat. 2057, 2115 10 Public Law 108–419, 118 Stat. 2341, 2365–67 14 See Adjustment of the Royalty Rate for Cable (codified as 17 U.S.C. 104A (1993)); Public Law (2004). Systems; Federal Communications Commission’s 103–465, 108 Stat. 4809, 4976–81 (1994). 11 See Filing of Agreements Between Copyright Deregulation of the Cable Industry, 47 FR 52146 6 See Procedures for Copyright Restoration of Owners and Public Broadcasting Entities, 42 FR (Nov. 19, 1982). Certain Motion Pictures and their Contents in 16776 (Mar. 30, 1977). 15 See Verification of Statements of Account Accordance With the North American Free Trade 12 See Public Law 108–419, 118 Stat. 2341 (2004). Submitted by Cable Operators and Satellite Carriers, Agreement, 59 FR 58789 (Nov. 15, 1994). 13 See 37 CFR ch. III. 79 FR 68623 (Nov. 18, 2014).
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Forms on Copyright Office Web site. 37 CFR Part 255 ■ c. In paragraph (b)(3)(i)(C), remove The proposed rule updates § 201.28 to Copyright, Music, Recordings. ‘‘the remitter’’ and add in its place ‘‘the reflect that forms relating to various applicant or remitter’’. statutory licenses are available on the 37 CFR Part 258 ■ d. Redesignate the introductory text of Copyright Office Web site and removes Copyright, Satellite, Rates. paragraph (b)(4) as paragraph (b)(4)(i), references addressing requests by mail redesignate paragraphs (b)(4)(i) and (ii) or facsimile. 37 CFR Parts 260 through 263 as paragraphs (b)(4)(i)(A) and (B), and Telegrams and Cablegrams. The Copyright, Digital audio designate the undesignated text existing regulations in §§ 201.13 and transmissions, Performance right, Sound preceding paragraph (b)(5) as paragraph 201.22 allow copyright owners to serve recordings. (b)(4)(ii). certain types of notices required under ■ e. In newly redesignated paragraph sections 110(4)(B)(iii) 16 and 411(c) 17 by 37 CFR Part 270 (b)(4)(i), remove the phrase ‘‘that were telegram or cablegram. The proposed Copyright, Sound recordings. submitted within the twelve month rule updates these regulations to remove period immediately preceding the Proposed Regulations references to these obsolete forms of request for access’’. communication and instead allow for For the reasons set forth in the ■ f. In newly redesignated paragraph service of notices by email or fax. preamble, the U.S. Copyright Office (b)(4)(ii), remove ‘‘Copyright Inspection of U.S. Copyright Office proposes amending 37 CFR parts 201, Information’’ and add in its place Records. The proposed rule removes 202, 203, 204, 205, 210, 211, 212, 253, ‘‘Records Research and Certification’’. § 201.2(b)(4)’s requirement that requests 255, 258, 260, 261, 262, 263, and 270 as ■ g. Revise paragraph (b)(7). to inspect a pending application, follows: ■ h. In paragraph (d)(1)(iv), remove deposit for a pending application,18 or ‘‘Certifications’’ and add in its place a document submitted for recordation19 PART 201—GENERAL PROVISIONS ‘‘Certification’’. The revision reads as follows: be limited to materials submitted within ■ 1. Revise the authority citation for part twelve months prior to the request, 201 to read as follows: § 201.2 Information given by the Copyright given that the processing time for a Office. paper application may be longer than Authority: 17 U.S.C. 702. * * * * * that in some cases. § 201.1 [Amended] (b) * * * Refunds. The proposed rule removes ■ 2. Amend § 201.1 as follows: (7) The Register of Copyrights has the reference to postage stamps in 37 ■ a. In paragraph (a), remove ‘‘on-site issued an administrative manual known CFR 201.6(c)(1) because in practice, the deliveries from commercial and private as the Compendium of U.S. Copyright Office has never used this method of couriers’’ and add in its place ‘‘direct Office Practices, Third Edition. The payment in issuing refunds. deliveries from commercial couriers and Compendium explains many of the List of Subjects messengers’’. practices and procedures concerning the ■ b. In paragraph (b)(2), remove Office’s mandate and statutory duties 37 CFR Part 201 ‘‘20559’’ and add in its place ‘‘20559– under title 17 of the United States Code. Copyright, General provisions. 6000’’, remove the term ‘‘Hull’’ from the It is both a technical manual for the ‘‘Type of submission’’ column of the Copyright Office’s staff, as well as a 37 CFR Part 202 table, and remove the term ‘‘AD’’ from guidebook for authors, copyright Copyright, Preregistration and the ‘‘Code’’ column of the table and add licensees, practitioners, scholars, the registration of claims to copyright. in its place the term ‘‘CAD/AD’’. courts, and members of the general ■ 37 CFR Part 203 c. In paragraph (c)(1), remove public. The Third Edition and prior ‘‘Information and Records Division’’ and editions of the Compendium may be Freedom of information. add in its place ‘‘Office of Public viewed, downloaded, or printed from 37 CFR Part 204 Information and Education’’. the Office’s Web site. They are also ■ d. In paragraph (c)(2), remove available for public inspection and Privacy. ‘‘Sections’’ and add in its place copying in the Records Research and 37 CFR Part 205 ‘‘sections’’. Certification Section. ■ e. In paragraph (c)(4), remove ‘‘hull’’ * * * * * Legal processes. and add in its place ‘‘design’’. 37 CFR Part 210 ■ f. In paragraph (c)(5), remove § 201.3 [Amended] ‘‘Records Research and Certification,’’ ■ 4. Amend § 201.3 as follows: Copyright, Phonorecords, Recordings. and add in its place ‘‘Records Research ■ a. In paragraph (c)(3), remove 37 CFR Part 211 and Certification Section,’’. ‘‘predominately’’ and add in its place ■ g. In paragraphs (c)(6) and (c)(7), ‘‘predominantly’’. Mask work. remove ‘‘Section’’ and add in its place ■ b. In paragraph (c)(9), remove the 37 CFR Part 212 ‘‘section’’. period from the end of the first line and ■ Design, Vessel hulls, Registration. h. In paragraph (c)(7), remove ‘‘Ave.’’ add in its place a colon and remove and add in its place ‘‘Avenue’’. ‘‘$130’’ and add in its place ‘‘130’’. 37 CFR Part 253 ■ 3. Amend § 201.2 as follows: ■ c. In paragraph (c)(11), remove ‘‘hull’’ ■ Copyright, Public broadcasting a. In paragraph (b)(1), remove and add in its place ‘‘design’’. ■ entities, Radio, Television. ‘‘Certifications and Documents Section’’ d. In the heading of paragraph (d), and add in its place ‘‘Records Research remove ‘‘Service Fees’’ and add in its
16 and Certification Section’’. place ‘‘service fees’’. 17 U.S.C. 110(4)(B)(ii) and (iii). ■ ■ 17 17 U.S.C. 411(c)(1). b. In paragraph (b)(3) introductory e. In paragraph (d)(6), remove the 18 37 CFR 201.2(b)(4)(i). text, remove ‘‘Information and Records period from the end of the term 19 See Office Organization and Procedures in Division’’ and add in its place ‘‘Office ‘‘Variable’’ in the ‘‘Fees ($)’’ column of Providing Information, 50 FR 30169 (July 24, 1985). of Public Information and Education’’. the table.
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■ f. In table heading of paragraph (e), § 201.8 [Amended] ■ m. In paragraph (f)(1) introductory remove ‘‘division’’ and add in its place ■ 9. Amend § 201.8 as follows: text, remove ‘‘paragraph (2) of this ‘‘Division’’. ■ a. In paragraphs (c)(1) introductory paragraph (f)’’ and add in its place text paragraph and (c)(1)(i), remove ‘‘paragraph (f)(2) of this section’’. § 201.4 [Amended] ‘‘claimant’’ and add in its place ■ n. In paragraph (f)(1)(ii), remove ■ 5. Amend § 201.4 as follows: ■ ‘‘applicant’’ each place it appears. ‘‘first-class’’ and add in its place ‘‘first a. In the introductory text of ■ b. In paragraph (d), remove class’’. paragraph (a)(1), remove ‘‘, as amended ‘‘certificate or registration’’ and add in ■ o. In paragraph (f)(3), remove ‘‘record’’ by Public Law 94–553’’. its place ‘‘certificate of registration’’. ■ b. In paragraph (a)(2), remove ‘‘, as and add in its place ‘‘recordation’’. ■ c. In paragraphs (f)(2) and (3), remove ■ amended by Public Law 94–553’’. p. In paragraph (f)(4), remove ‘‘section ■ c. In paragraph (a)(3)(ii), remove ‘‘or’’ ‘‘mail’’ and add in its place ‘‘Mail’’. 203(a)(3) or section 304(c)(3), as ■ d. In paragraph (g), remove ‘‘one of the and add in its place ‘‘of’’. applicable, of title 17, United States ■ d. In paragraph (c)(4)(ii)(D)(4), remove addresses specified in § 201.1’’ and add Code’’ and add in its place ‘‘17 U.S.C. ‘‘a two- or three-letter’’ and add in its in its place ‘‘the address specified in 203(a)(3) or 304(c)(3), whichever place ‘‘a one-, two-, or three-letter’’. § 201.1(c)(1)’’. applies’’ and remove ‘‘§ 201.4(c)(3)’’ and ■ e. In paragraph (c)(4)(iii), add a period § 201.9 [Removed and reserved] add in its place ‘‘§ 201.4’’. after ‘‘Public Catalog’’ and remove ‘‘and ■ q. In paragraph (f)(7), remove ■ 10. Remove and reserve § 201.9. the remitter’’ and add in its place ‘‘The ‘‘§ 201.1’’ and add in its place remitter’’. § 201.10 [Amended] ‘‘§ 201.1(c)(2)’’. ■ f. In paragraph (e), remove ‘‘record’’ ■ 11. Amend § 201.10 as follows: § 201.11 [Amended] and add in its place ‘‘recordation’’. ■ a. In the introductory text, remove ■ 12. Amend § 201.11 as follows: ‘‘sections 203, 304(c) and 304(d) of title § 201.5 [Amended] ■ a. In paragraph (a), remove ‘‘section ■ 6. Amend § 201.5 as follows: 17, of the United States Code’’ and add in its place ‘‘17 U.S.C. 203, 304(c), and 119(b)(1) and Section 122(a) of title 17 ■ a. In paragraphs (a)(1) introductory of the United States Code, as amended text, (a)(1)(i)(A) and (a)(1)(ii), remove ‘‘, 304(d)’’. ■ b. In paragraphs (b)(1) introductory by Public Law 111–175’’ and add in its as amended by Public Law 94–553’’. place ‘‘17 U.S.C. 119(b)(1), as amended ■ text, remove ‘‘sections 304(c) and 304(d) b. In paragraph (b)(2)(i), remove the by Public Law 111–175’’, remove ‘‘that’’ semicolon from the end and add in its of title 17, U.S.C.,’’ and add in its place ‘‘17 U.S.C. 304(c) and 304(d)’’. and add in its place ‘‘for’’, and add the place a period. term ‘‘to’’ after the phrase ‘‘private home ■ c. In paragraph (b)(2)(iii)(B), remove ‘‘; ■ c. In paragraph (b)(1)(vii)(B), remove ‘‘section 304 of title 17, U.S.C.,’’ and viewing’’. and’’ and add in its place a period. ■ add in its place ‘‘17 U.S.C. 304’’. b. In paragraph (b)(1), remove ‘‘and’’ § 201.6 [Amended] ■ d. In paragraph (b)(2) introductory and add in its place ‘‘and’’, remove ■ 7. Amend § 201.6 as follows: text, remove ‘‘section 203 of title 17, ‘‘Section 119(d) of title 17 of the United ■ a. In paragraph (a), remove ‘‘Register U.S.C.,’’ and add in its place ’’ 17 U.S.C. States Code, as amended by Public Law of Copyrights’’ from the first sentence 203’’. 111–175’’ and add in its place ‘‘17 and add in its place ‘‘U.S. Copyright ■ e. In paragraph (b)(2)(vii)(B), remove U.S.C. 119(d), as amended by Public Office’’. ‘‘section 203 of title 17, U.S.C.’’ and add Law 111–175’’. ■ b. In paragraph (b)(3), remove the last in its place ‘‘17 U.S.C. 203’’. ■ c. In paragraph (c)(1), remove ‘‘section sentence. ■ f. In paragraph (c)(2), remove ‘‘section 119(b)(1)(B) and (c)(3) of title 17’’ and ■ c. In paragraph (c)(1), remove ‘‘hulls’’ 304(c) or section 304(d), whichever add in its place ‘‘17 U.S.C. 119(b)(1)(B)’’ from the first sentence and add in its applies, of title 17, U.S.C.’’ and add in and remove ‘‘not later than’’ and add in place ‘‘designs’’. its place ‘‘17 U.S.C. 304(c) or 304(d), its place ‘‘no later than’’ each place it ■ d. In paragraphs (c)(1) and (2), remove whichever applies’’. appears. the phrase ‘‘, and refunds of less than $2 ■ g. In paragraph (c)(3), remove ‘‘section ■ d. In paragraph (d)(1), remove the may be made in postage stamps’’. 203 of title 17, U.S.C.’’ and add in its term ‘‘U.S.’’, and remove ‘‘free upon ■ e. In paragraph (c)(3), remove the place ‘‘17 U.S.C. 203’’. request. Requests may be mailed to the comma after the term ‘‘Records’’ in the ■ h. In paragraph (d)(2), remove address specified in § 201.1’’ and add in last sentence. ‘‘section 203, section 304(c) or section its place ‘‘free from the Copyright Office ■ f. In paragraph (d), remove 304(d) of title 17, U.S.C.’’ and add in its Web site’’. ‘‘transferred for the’’ and add in its place ‘‘17 U.S.C. 203, 304(c), or 304(d)’’. ■ e. In paragraph (d)(2), remove place ‘‘transferred for use in the’’. ■ i. In paragraph (d)(4), remove ‘‘section ‘‘Statement of Account for Secondary § 201.7 [Amended] 203, section 304(c), or section 304(d) of Transmissions by Satellite Carriers to ■ 8. Amend § 201.7 as follows: title 17, U.S.C.’’ and add in its place ‘‘17 Home Viewers’’ and add in its place ■ a. In paragraph (c)(1), remove ‘‘de U.S.C. 203, 304(c), or 304(d)’’. ‘‘Form SC (Statement of Account for minimis’’ from the first sentence and ■ j. In paragraph (e)(1), remove ‘‘section Secondary Transmissions by Satellite add in its place ‘‘insufficiently creative’’ 203, section 304(c), or section 304(d) of Carriers of Distant Television Signals)’’. and remove ‘‘not in accordance with title 17, U.S.C.’’ and add in its place ‘‘17 ■ f. In paragraphs (e)(6) and (7), remove title 17 U.S.C., Chapters 1 through 8’’ U.S.C. 203, section 304(c), or section ‘‘§ 258.3’’ and add in its place ‘‘§ 386.2’’. from the last sentence and add in its 304(d)’’. ■ g. In paragraph (h)(3)(i), remove the place ‘‘not in accordance with U.S. ■ k. In paragraph (d)(1), remove ‘‘first- second sentence and add in its place copyright law’’. class’’ and add in its place ‘‘first class’’. ‘‘Telephone or similar unsigned ■ b. In paragraph (c)(2), remove ■ l. In paragraph (d)(3), remove requests that meet these conditions may ‘‘remitter’’ and add in its place ‘‘reasonable investigation’’ and add in be permitted, where a follow-up written ‘‘applicant’’. its place ‘‘reasonable investigation’’ and request detailing the same information ■ c. In paragraph (d), remove ‘‘remitter’’ remove ’’ ‘‘reasonable investigation’’ ’’ is received by the Copyright Office from the first sentence and add in its and add in its place ‘‘reasonable within fourteen days after the required place ‘‘applicant’’. investigation’’. thirty-day period.’’.
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§ 201.12 [Amended] ■ g. Revise paragraph (c)(1). (i) If the cable system maintains its ■ 13. Amend § 201.12 as follows: ■ h. In paragraph (d)(1), remove the revenue accounts on an accrual basis, ■ a. In paragraph (a), remove ‘‘section term ‘‘U.S.’’, and remove ‘‘upon request. gross receipts for any accounting period 111(e)(2) of title 17 of the United States Requests may be mailed to the address includes all such amounts accrued for Code as amended by Public Law 94– specified in § 201.1’’ and add in its secondary transmission service 553’’ and add in its place ‘‘17 U.S.C. place ‘‘from the Copyright Office Web furnished during that period, regardless 111(e)(2)’’. site’’. of when accrued: ■ b. In paragraph (b), remove ‘‘§ 201.3’’ ■ i. In paragraph (e)(5)(iii), add a period (A) Less the amount of any bad debts and add in its place ‘‘§ 201.3(e)’’. to the end of the sentence. actually written-off during that ■ c. In paragraph (c), remove ‘‘record’’ ■ j. Revise paragraph (e)(7) accounting period; ■ from the last sentence and add in its k. Revise paragraph (f)(3). (B) Plus the amount of any previously ■ place ‘‘recordation’’. l. Remove paragraph (i)(1)(vi). written-off bad debts for secondary ■ m. Revise paragraph (i)(3). ■ transmission service which were § 201.13 [Amended] n. Remove paragraphs (i)(4) and (5). actually recovered during that ■ o. Redesignate paragraphs (i)(6) ■ 14. Amend § 201.13 as follows: accounting period. through (10) as paragraphs (i)(4) through ■ a. In paragraph (a), remove ‘‘section (ii) If the cable system maintains its 110(4) of title 17 of the United States (8), respectively. ■ p. In paragraph (m)(2)(i), remove revenue accounts on a cash basis, gross Code as amended by Public Law 94– ‘‘incomplete;’’ and add in its place receipts of any accounting period 553’’ and add in its place ‘‘17 U.S.C. ‘‘incomplete; or’’. includes all such amounts actually 110(4)’’. ■ q. In paragraph (m)(2)(ii), remove received by the cable system during that ■ b. In paragraph (d)(3), remove ‘‘a ‘‘low; or’’ and add in its place ‘‘low.’’. accounting period. telegram’’ and add in its place ‘‘an ■ r. Remove paragraph (m)(2)(iii). * * * * * email, fax,’’ and remove ‘‘said paragraph ■ s. In paragraph (m)(4)(i), remove the (f) * * * (e)’’ and add in its place ‘‘paragraph (e) second sentence and add in its place (3) In computing the DSE of a primary of this section’’. ‘‘Telephone or similar unsigned transmitter in a particular case of ■ c. In paragraph (e)(2)(iii), remove requests that meet these conditions may carriage on or after July 1, 1981, the ‘‘Telegram, cablegram,’’ and add in its be permitted, where a follow-up written cable system may make no prorated place ‘‘Email, fax,’’. request detailing the same information adjustments other than those specified § 201.14 [Amended] is received by the Copyright Office in 17 U.S.C. 111(f)(5)(B), and which within fourteen days after the required remain in force under that provision. ■ 15. Amend § 201.14 as follows: Two prorated adjustments, as prescribed ■ a. In paragraphs (a)(1) and (2), remove sixty-day period.’’ ■ t. Remove paragraph (m)(4)(iii)(C). in that section, are permitted under ‘‘as amended by Public Law 94–553’’. ■ u. In paragraph (m)(4)(iv)(A), remove certain conditions where: ■ b. In paragraph (c)(2), remove ‘‘8’’ and the phrase ‘‘(except those filed under (i) A station is carried on a part-time add in its place ‘‘eight’’. paragraph (m)(2)(iii) of this section)’’. basis where full-time carriage is not § 201.15 [Reserved] ■ v. In paragraph (m)(4)(iv)(B), remove possible because the cable system lacks the comma after the phrase ‘‘this ■ 16. Add and reserve § 201.15. the activated channel capacity to paragraph (m)’’. retransmit on a full-time basis all signals § 201.16 [Amended] The revisions read as follows: which it is authorized to carry; and ■ 17. Amend § 201.16 by removing § 201.17 Statements of Account covering (ii) A station is carried on a paragraph (c)(7). compulsory licenses for secondary ‘‘substitute’’ basis under rules, ■ 18. Amend § 201.17 as follows: transmissions by cable systems. regulations, or authorizations of the FCC ■ a. In paragraph (a), remove * * * * * in effect on October 19, 1976 (as defined ‘‘Coypright’’ and add in its place (c) * * * in 17 U.S.C. 111(f)(5)(B)(ii)), which ‘‘Copyright’’ and remove ‘‘section (1) Statements of Account shall cover permitted a cable system, at its election, 111(d)(2) of title 17 of the United States semiannual accounting periods of to omit the retransmission of a Code’’ and add in its place ‘‘17 U.S.C. January 1 through June 30, and July 1 particular program and substitute 111(d)(1)’’. through December 31, and shall be another program in its place. ■ b. In paragraph (b)(1), remove ‘‘Gross deposited in the Copyright Office, * * * * * receipts for the’’ and add in its place together with the total royalty fee for (i) * * * ‘‘Gross receipts for the’’. such accounting periods as prescribed (3) It shall be presumed that the ■ c. In paragraph (b)(2), remove by 17 U.S.C. 111(d)(1)(B) through (F), by 3.75% rate of 37 CFR 308.2(c) applies to ‘‘§ 201.17 of’’ each place it appears and no later than the immediately following DSEs accruing from newly added remove ‘‘section, shall be’’ and add in August 29, if the Statement of Account distant signals, carried for the first time its place ‘‘section shall be’’. covers the January 1 through June 30 by a cable system after June 24, 1981. ■ d. In paragraph (b)(5), remove accounting period, and by no later than The presumption of this section can be ‘‘Section 111(f) of title 17 of the United the immediately following March 1, if rebutted in whole or in part: States Code, as amended by Public Law the Statement of Account covers the (i) By actual carriage of a particular 94–553, Public Law 103–369, and July 1 through December 31 accounting distant signal prior to June 25, 1981, as Public Law 111–175’’ and add in its period. reported in Statements of Account duly place ‘‘17 U.S.C. 111(f), as amended by (e) * * * filed with the Copyright Office (‘‘actual Public Laws 94–553, 103–369, and 111– (7) The designation ‘‘Gross Receipts’’, carriage’’), unless the prior carriage was 175’’. followed by the gross amount paid to not permitted by the FCC; or ■ e. In paragraph (b)(7), remove the cable system by subscribers for the (ii) By carriage of no more than the ‘‘translator station is,’’ and add in its basic service of providing secondary number of distant signals which was or place ‘‘translator station is’’. transmissions of primary broadcast would have been allotted to the cable ■ f. In paragraph (b)(9), remove ‘‘FCC’’, transmissions during the period covered system under the FCC’s quota for ’’ and add in its place ‘‘FCC,’’ ’’. by the Statement of Account. importation of network and
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nonspecialty independent stations (47 § 201.26 [Amended] ■ d. In paragraph (d)(3)(ii)(G), remove CFR 76.59(b), 76.61 (b) and (c), and ■ 23. Amend § 201.26 as follows: ‘‘Telefax number’’ and add in its place 76.63, referring to 76.61 (b) and (c), in ■ a. In paragraph (b), remove ‘‘Email address’’. effect on June 24, 1981). ‘‘Definitions–’’and add in its place ■ e. In paragraph (e)(2)(i), remove * * * * * ‘‘Definitions. ’’. ‘‘Register of Copyrights’’ and add in its ■ b. In paragraph (d), remove place ‘‘U.S. Copyright Office’’. § 201.18 [Amended] ‘‘Documents–’’ and add in its place ■ f. In paragraph (e)(2)(ii), remove ■ 19. Amend 201.18 as follows: ‘‘documents. ’’. ‘‘U.S.’’ from each place it appears in the ■ a. In paragraph (a)(2), remove ‘‘his’’ ■ c. Remove paragraph (d)(4). paragraph heading and the paragraph ■ and add in its place ‘‘the’’. d. In paragraph (f), remove ‘‘record’’ body, and remove ‘‘§ 201.1’’ from the ■ b. In paragraph (a)(4) introductory from the second sentence and add in its last sentence and add in its place text, remove ‘‘subparagraphs (ii) and place ‘‘recordation’’. ‘‘§ 201.1(b)’’. (iii)’’ and add in its place ‘‘paragraphs § 201.27 [Amended] ■ g. In paragraph (e)(2)(iii), remove (a)(4)(ii) and (iii) of this section’’, and in ■ ‘‘VISA, MasterCard and American paragraphs (a)(4)(i) and (ii), remove 24. Amend § 201.27(b)(3) by removing the comma following the term Express’’ from the first sentence and add ‘‘that that’’ and add in its place ‘‘that’’ ‘‘cassette’’. in its place ‘‘most major credit cards’’. each place it appears. ■ h. Revise paragraph (f). ■ c. In paragraph (a)(5), remove the § 201.28 [Amended] The revision reads as follow: phrase ‘‘copyright owner,’’ and add in ■ 25. Amend § 201.28 as follows: its place the phrase ’’ ‘‘copyright ■ a. In paragraph (c)(3), remove the third § 201.33 Procedures for filing Notices of owner,’’ ’’. and fourth sentences. Intent to Enforce a restored copyright under ■ d. In paragraph (b), remove ■ b. In paragraph (d)(1), remove ‘‘from the Uruguay Round Agreements Act. ‘‘paragraph (a)(4)’’ and add in its place the Licensing Division, Library of * * * * * ‘‘paragraph (a)(6)’’, and remove Congress’’ and add in its place ‘‘free (f) Public access. Notices of Intent to ‘‘§ 210.11(e)’’ and add in its place from the Copyright Office Web site’’, Enforce filed with the Copyright Office ‘‘§ 210.16(g)’’. remove ‘‘Forms and other information are available for public inspection and ■ e. In paragraph (f)(3), remove the may be requested from the Licensing copying in the Records Research and phrase ‘‘filed by being’’ from the fourth Division by facsimile transmission Certification Section. Some of the sentence. (FAX), but copies’’ and add in its place information contained in these records ■ f. In paragraph (f)(4), remove ‘‘Copies’’ and remove ‘‘FAX’’ and add in is available on the Office’s Web site, ‘‘paragraph (a)(4)’’ and add in its place its place ‘‘fax’’. including the title of the work or a brief ‘‘paragraph (b)’’ each place it appears. ■ c. In paragraph (e)(5), remove description if the work is untitled and § 201.22 [Amended] ‘‘facsimile (FAX)’’ and add in its place the name of the copyright owner or ‘‘fax’’. owner of an exclusive right. ■ 20. Amend § 201.22 as follows: ■ d. In paragraph (j)(3)(i), remove the ■ * * * * * a. In paragraphs (a)(1) and (c)(1)(i), third sentence and add in its place remove ‘‘411(b)’’ and add in its place ‘‘Telephone or similar unsigned Appendix A to § 201.33 [Amended] ‘‘411(c)’’. requests that meet these conditions may ■ 29. Amend Appendix A to § 201.33 by ■ b. In paragraph (d)(3), remove ‘‘a be permitted, where a follow-up written removing ‘‘Telefax’’ from item 13 and telegram’’ and add in its place ‘‘an request detailing the same information adding in its place ‘‘Fax’’. email, fax,’’. is received by the Copyright Office ■ ■ c. In paragraph (e)(1), remove 30. Amend § 201.34 as follows: within 14 days after the required 60-day ■ a. In paragraph (d)(3)(viii)(D), remove ‘‘411(b)(1)’’ and add in its place period.’’. ‘‘411(c)(1)’’. ‘‘telefax’’ and add in its place ‘‘fax’’. ■ ■ d. In paragraph (e)(2)(iii), remove § 201.29 [Amended] b. In paragraph (e), italicize ‘‘Fee—’’ ‘‘Telegram, cablegram,’’ and add in its ■ in the paragraph heading. 26. Amend § 201.29 as follows: ■ place ‘‘Email, fax,’’. ■ a. In paragraph (e), remove the term c. Revise paragraph (f). ‘‘5’’ and add in its place the term ‘‘five’’. The revision reads as follows: § 201.23 [Amended] ■ b. In paragraph (h)(1), remove the § 201.34 Procedures for filing Correction ■ 21. Amend § 201.23 as follows: parentheses from the around the phrase ■ Notices of Intent to Enforce a Copyright a. In paragraph (a), remove ‘‘, as ‘‘of the manufacturing party or Restored under the Uruguay Rounds amended by Pub. L. 94–553, 90 Stat. importing party’’. Agreement Act. 2541, effective January 1, 1978’’ and ■ c. In paragraph (h)(2), remove * * * * * remove the phrase ‘‘, as amended by ‘‘telefax’’ and add in its place ‘‘fax’’. (f) Public access. Correction Notices of Pub. L. 94–553’’. ■ d. In paragraph (h)(6), remove the Intent to Enforce filed with the ■ b. In paragraph (b), remove ‘‘Provided, term ‘‘(AHRA)’’. That:’’ and add in its place ‘‘provided Copyright Office are available for public that:’’. § 201.31 [Removed and reserved] inspection and copying in the Records ■ c. In paragraphs (b)(1) through (3), ■ 27. Remove and reserve § 201.31. Research and Certification Section. remove the phrase ‘‘, as amended by ■ 28. Amend § 201.33 as follows: * * * * * Pub. L. 94–553’’ wherever it appears. ■ a. In paragraph (a), remove ‘‘automated database, which can be § 201.38 [Amended] § 201.25 [Amended] accessed over the Internet’’ from the last ■ 31. Amend § 201.38 in paragraph (e) ■ 22. Amend § 201.25 as follows: sentence and add in its place ‘‘Web by removing ‘‘§ 201.1’’ from the first ■ a. In paragraph (c)(1), remove site’’. sentence and adding in its place ‘‘Regulatory’’ from the first sentence and ■ b. In paragraph (b)(2)(iii), remove the ‘‘§ 201.1(c)(3)’’ and by removing the add in its place ‘‘Registry’’. phrase ‘‘the new’’ each place it appears. sentence ‘‘If mailed, the Interim ■ b. In paragraph (e), remove ‘‘record’’ ■ c. In paragraph (b)(3)(iii)(A), remove Designation should be addressed to: from the second sentence and add in its ‘‘United States’’ and add in its place Copyright GC/I&R, PO Box 70400, place ‘‘recordation’’. ‘‘U.S.’’. Washington, DC 20024.’’.
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§ 201.39 [Amended] ■ h. In paragraph (b)(8)(i), remove the ■ k. In newly redesignated paragraph ■ 32. Amend § 201.39 as follows: phrase ‘‘, as amended by Public Law 94– (c)(3)(vi), remove ‘‘telefax’’ and add in ■ a. In paragraph (g)(1), italicize the 553’’. its place ‘‘fax’’. ■ l. In paragraph (d), remove paragraph heading ‘‘Method of filing.’’. § 202.4 [Removed and reserved] ■ b. In paragraph (g)(3)(i), remove ‘‘copyrights’’ and add in its place ■ 36. Remove and reserve § 202.4. ‘‘Register of Copyrights’’ and add in its ‘‘works’’. place ‘‘U.S. Copyright Office’’. § 202.5 [Amended] The revision reads as follows: ■ c. In paragraph (g)(3)(ii), remove ■ 37. Amend § 202.5 as follows: § 202.12 Restored copyrights. ■ ‘‘U.S.’’ from each place it appears in the a. In paragraph (a), remove the term * * * * * paragraph heading and the paragraph ‘‘hull’’. (c) Registration—(1) Application. ■ body and remove ‘‘§ 201.1’’ and add in b. In paragraph (b)(2), remove Applications for registration for single its place ‘‘§ 201.1(b)’’. ‘‘§ 201.3(d)(3)(i)’’ and add in its place works restored to copyright protection ‘‘§ 201.3(d)’’. under the URAA should be made on PART 202—PREREGISTRATION AND ■ c. In paragraph (b)(3), remove Form GATT. Copies of this form may be REGISTRATION OF CLAIMS TO ‘‘Registration Program written notice’’ obtained from the Office’s Web site or COPYRIGHT and add in its place ‘‘written notice by contacting the Public Information from the Registration Program’’ and ■ Office at (202) 707–3000. Applicants 33. The authority citation for part 202 remove the term ‘‘initial’’. continues to read as follows: ■ d. In paragraph (c)(2), remove should submit the completed Authority: 17 U.S.C. 408(f), 702. ‘‘§ 201.3(d)(3)(ii)’’ and add in its place application with the appropriate filing ‘‘§ 201.3(d)’’. fee and deposit copies and materials § 202.2 [Amended] ■ e. In paragraph (d)(1), remove required by paragraph (c)(3) of this ■ 34. Amend § 202.2 as follows: ‘‘§ 201.1’’ and add in its place section in the same package by mail. ■ a. In paragraph (b)(2), remove ‘‘his’’ ‘‘§ 201.1(c)(4)’’. * * * * * and add in its place ‘‘the producer’s’’. ■ f. In paragraph (e), remove ‘‘wavier’’ § 202.16 [Amended] ■ b. In paragraph (b)(5), remove ‘‘his from the paragraph heading and add in ■ name’’ and add in its place ‘‘that its place ‘‘waiver’’. 39. Amend § 202.16 as follows: ■ person’s name’’. ■ 38. Amend § 202.12 as follows: a. In paragraph (a), remove ‘‘Section ■ c. Redesignate paragraphs (b)(6)(i) ■ a. In paragraph (b)(1), italicize the 408(f) of 17 U.S.C.’’ and add in its place through (iii) as paragraphs (b)(6)(i)(A) terms ‘‘restored work’’ and ‘‘source ‘‘17 U.S.C. 408(f).’’. ■ b. Revise paragraph (c)(3). through (C), respectively, redesignate country’’, and remove the term ‘‘the ■ c. In paragraph(c)(5)(ii)(A), italicize the introductory text of paragraph (b)(6) URAA’’ and add in its place the phrase the paragraph heading ‘‘Copyright as (b)(6)(i), and designate the ‘‘17 U.S.C. 104(A)(g)(6) and (8)’’. Office deposit account.’’ undesignated text preceding paragraph ■ b. Revise paragraph (c)(1). ■ ■ d. In paragraph (c)(5)(ii)(B), italicize (b)(7) as (b)(6)(ii). c. Remove paragraph (c)(2). ■ d. Redesignate paragraphs (c)(3) and the paragraph heading ‘‘Credit cards, ■ d. In newly redesignated paragraph (4) as paragraphs (c)(2) and (3), debit cards and electronic funds (b)(6)(i)(C), remove ‘‘Provided, however, respectively. transfer.’’ That’’ and add in its place ‘‘Provided, ■ e. In newly redesignated paragraph ■ e. In paragraph (c)(5)(ii)(C), italicize however, that’’ and remove ‘‘three (c)(2)(ii)(A), remove ‘‘Register of the paragraph heading ‘‘No refunds.’’ foregoing types of cases’’ and add in its Copyrights’’ and add in its place ‘‘U.S. ■ f. Revise paragraph (c)(6)(i) and place ‘‘three types of cases described in Copyright Office’’. paragraphs (c)(6)(iii) through (v). paragraphs (b)(6)(i)(A) through (C) of ■ f. In newly redesignated paragraph ■ h. In paragraph (c)(6)(vi), remove the this section’’. (c)(2)(ii)(B), remove ‘‘U.S.’’ from each last sentence and add in its place ‘‘The § 202.3 [Amended] place it appears in the paragraph description may also explain the general ■ heading and the paragraph body. presentation (e.g., the lighting, 35. Amend § 202.3 as follows: ■ ■ g. In newly redesignated paragraph background scenery, positioning of a. In paragraph (a)(1), remove the (c)(2)(ii)(C), remove ‘‘URAA’’ and add in elements of the subject matter as it is phrase ‘‘, as amended by Public Law 94– its place ‘‘GATT’’ and remove ‘‘VISA, seen in the photographs), and should 553’’. MasterCard, and American Express’’ provide any locations and events, if ■ b. In paragraph (b)(1)(v), italicize the and add in its place ‘‘most major credit applicable, associated with the paragraph heading ‘‘Class SE: Serials.’’. cards’’. photographs.’’ ■ c. In paragraph (b)(2)(i)(A), remove ’’ ■ h. In newly redesignated paragraph ■ i. Revise paragraph (c)(10). [www.copyright.gov]’’ and add in its (c)(3)(i), remove ‘‘the amended section ■ j. In paragraph (c)(11), remove place ‘‘(www.copyright.gov)’’. 104A’’ and add in its place ‘‘17 U.S.C. ‘‘Information and Records Division’’ and ■ d. In paragraph (b)(2)(i)(D), remove 104A’’ and remove ‘‘paragraphs (c)(4) add in its place ‘‘Office of Public the phrase ‘‘a remitter’’ and add in its (ii)’’ and add in its place ‘‘paragraphs Information and Education’’. place the phrase ‘‘an applicant’’. (c)(3)(ii)’’. ■ k. Revise paragraph (c)(12). ■ e. In paragraph (b)(2)(ii)(C), remove ■ i. In newly redesignated paragraph The revisions read as follows: ‘‘the type of authorship that (c)(3)(iv), remove ‘‘paragraph (c)(4)(i)’’ predominates’’ from the fourth sentence and add in its place ‘‘paragraph § 202.16 Preregistration of copyrights. and add in its place ‘‘the predominant (c)(3)(i)’’. * * * * * type of authorship’’. ■ j. In newly redesignated paragraph (c) * * * ■ f. In paragraph (b)(2)(ii)(D), remove ’’ (c)(3)(v), remove ‘‘may seek an (3) Application. An application for [www.copyright.gov]’’ and add in its alternative deposit under special relief preregistration must be submitted place ‘‘(www.copyright.gov)’’. (37 CFR 202.20(d))’’ and add in its place electronically on the Copyright Office ■ g. In paragraph (b)(6)(v), remove ‘‘may submit an alternative deposit Web site at: http://www.copyright.gov. ‘‘under 408(c)(1) of title 17’’ and add in under a grant of special relief under * * * * * its place ‘‘under 17 U.S.C 408(c)(1)’’. § 202.20(d)’’. (6) * * *
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(i) For motion pictures, the if any, and the general setting and ■ h. In paragraph (e)(3), remove ‘‘for identifying description should include surrounding found in the game. Registration Program’’ and add in its the following information to the extent * * * * * place ‘‘of Copyrights and Director of the known at the time of filing: The subject (10) Notification of preregistration. Office of Registration Policy and matter, a summary or outline, the Upon completion of the preregistration, Practice’’. director, the primary actors, the the Copyright Office will email an ■ i. In paragraph (f)(1), remove ‘‘on the principal location of filming, and any official notification of the application’’ and remove ‘‘of these other information that would assist in preregistration to the person who regulations’’. identifying the particular work being submitted the application. The revisions read as follows: preregistered. * * * * * § 202.19 Deposit of published copies or * * * * * (12) Public record of preregistration. phonorecords for the Library of Congress. The preregistration record also will be (iii) For musical compositions, the * * * * * made available to the public on the identifying description should include (b) * * * Copyright Office Web site at: http:// (2) A complete copy includes all the following information to the extent www.copyright.gov. known at the time of filing: The subject elements comprising the unit of matter of the lyrics, if any; the genre of * * * * * publication of the best edition of the work, including elements that, if the work (e.g., classical, pop, musical § 202.17 [Amended] considered separately, would not be comedy, soft rock, heavy metal, gospel, ■ 40. Amend § 202.17 as follows: copyrightable subject matter or would rap, hip-hop, blues, jazz); the performer, ■ a. In paragraph (b)(1), remove ‘‘[as’’ otherwise be exempt from the principal recording location, record and add in its place ‘‘(as’’ and remove mandatory deposit requirement under label, motion picture, or other ‘‘(C)]’’ and add in its place ‘‘(C))’’. paragraph (c) of this section. information relating to any sound ■ b. In paragraph (c)(2), remove (i) In the case of sound recordings, a recordings or motion pictures that are ‘‘409(11),’’ and add in its place ‘‘complete’’ phonorecord includes the being prepared for commercial ‘‘409(10),’’. phonorecord, together with any printed ■ distribution and will include the c. In the heading to paragraph (e), or other visually perceptible material musical composition; and any other remove ‘‘Section’’ and add in its place published with such phonorecord (such detail or characteristic that may assist in ‘‘section’’. ■ as textual or pictorial matter appearing identifying the particular musical d. In paragraph (e)(2), remove on record sleeves or album covers, or composition. ‘‘name[s]’’ and add in its place embodied in leaflets or booklets ‘‘name(s)’’ each place it appears, remove (iv) For literary works in book form, included in a sleeve, album, or other ‘‘claimant[s]’’ and add in its place the identifying description should container). ‘‘claimant(s)’’ each place it appears, and (ii) In the case of a musical include to the extent known at the time remove ‘‘sixty-seven year’’ and add in of filing: The genre of the book (e.g., composition published in copies only, its place ‘‘67-year’’. or in both copies and phonorecords: biography, novel, history, etc.), and ■ e. In paragraph (e)(3), remove ‘‘(b)(4)’’ should include a brief summary of the (A) If the only publication of copies and add in its place ‘‘(b)(3)’’. in the United States took place by the work including, the subject matter (e.g., ■ f. In paragraph (f)(2), remove a biography of President Bush, a history rental, lease, or lending of a full score ‘‘(f)(1)(i)’’ and add in its place ‘‘(f)(1)’’. and parts, a full score is a ‘‘complete’’ of the war in Iraq, a fantasy novel); a ■ g. In paragraph (g)(1), remove ‘‘U.S. copy; and description (where applicable) of the Copyright Office homepage at http:// plot, primary characters, events, or other (B) If the only publication of copies in www.copyright.gov’’ from the second the United States took place by the key elements of the content of the work; sentence and add in its place rental, lease, or lending of a conductor’s and any other salient characteristics of ‘‘Copyright Office Web site at: http:// score and parts, a conductor’s score is the book (e.g., whether it is a later www.copyright.gov’’, remove ‘‘Request.’’ a ‘‘complete’’ copy. edition or revision of a previous work, and add in its place ‘‘request.’’, and (iii) In the case of a motion picture, a as well as any other detail which may remove ‘‘§ 201.1’’ and add in its place copy is ‘‘complete’’ if the reproduction assist in identifying the literary work in ‘‘§ 201.1(b)’’. ■ of all of the visual and aural elements book form). h. In paragraph (h)(3)(vii), remove comprising the copyrightable subject (v) For computer programs (including ‘‘[effective’’ and add in its place matter in the work is clean, undamaged, videogames), the identifying description ‘‘(effective’’ and remove ‘‘1988]’’ and undeteriorated, and free of splices, and should include to the extent known at add in its place ‘‘1988)’’. ■ if the copy itself and its physical the time of filing: The nature, purpose 41. Amend § 202.19 as follows: ■ a. In paragraph (a), remove ‘‘, as housing are free of any defects that and function of the computer program, amended by Public Law 94–553’’ and would interfere with the performance of including the programming language in remove ‘‘of these regulations’’. the work or that would cause which it is written and any particular ■ b. Revise paragraph (b)(2). mechanical, visual, or audible defects or organization or structure in which the ■ c. In paragraph (b)(4), remove distortions. program has been created; the form in ‘‘§ 202.19(c)(5) of this regulation’’ and (iv) In the case of an electronic work which it is expected to be published add in its place ‘‘paragraph (c)(5) of this published in the United States and (e.g., as an online-only product; whether section’’. available only online, a copy is there have been previous versions and ■ d. In paragraphs (c)(5) and ‘‘complete’’ if it includes all elements identification of such previous (d)(2)(iii)(B), and (d)(2)(iv), remove ‘‘of constituting the work in its published versions); the identities of persons these regulations’’ wherever it occurs. form, i.e., the complete work as involved in the creation of the computer ■ e. Revise paragraph (d)(2)(iv). published, including metadata and program; and, if the work is a ■ f. In paragraph (d)(2)(vi), remove the formatting codes otherwise exempt from videogame, also the subject matter of the comma after the term ‘‘kits’’. mandatory deposit. videogame and the overall object, goal, ■ g. In paragraph (e)(1)(iv), remove the * * * * * or purpose of the game, its characters, phrase ‘‘of these regulations’’. (d) * * *
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(2) * * * add footnote 7 after the second ■ a. In paragraph (a), remove ‘‘and to’’ (iv) In any case where an individual sentence. Designate the undesignated from the first sentence and add in its author is the owner of copyright in a text after paragraph (c)(2)(xviii)(B)(4) as place ‘‘and’’ and remove the phrase ‘‘of published pictorial or graphic work and: the text to footnote 7 with a superscript these regulations’’. (A) Less than five copies of the work ‘‘7’’ preceding the text. ■ b. In paragraph (g)(1)(i), remove ‘‘and have been published; or ■ q. In paragraphs (d)(1)(iv) and (d)(3), description’’ and add in its place ‘‘and (B) The work has been published and remove ‘‘of these regulations’’ each a description’’. sold or offered for sale in a limited place it appears. ■ c. In paragraph (h), remove the phrase edition consisting of no more than three ■ r. In paragraph (d)(3), remove ‘‘for ‘‘of these regulations’’. hundred numbered copies, the deposit Registration Program of the Copyright § 202.22 [Amended] of one complete copy of the best edition Office’’ and add in its place ‘‘of ■ of the work or, alternatively, the deposit Copyrights and Director of the Office of 44. Amend § 202.22 in paragraph of photographs or other identifying Registration Policy and Practice’’. (f)(1)(i) by removing the phrase ‘‘not material in compliance with § 202.21, ■ s. In paragraph (e), remove ‘‘section later than’’ and adding in its place the will suffice in lieu of the two copies 407 of title 17 and § 202.19 of these phrase ‘‘no later than’’. required by paragraph (d)(1) of this regulations’’ and add in its place ‘‘17 § 202.23 [Amended] U.S.C. 407 and § 202.19’’, remove ‘‘of section. ■ 45. Amend § 202.23 as follows: * * * * * claim’’ and add in its place ‘‘of a claim’’, ■ a. In paragraph (a)(1), remove ■ 42. Amend § 202.20 as follows: and remove the phrase ‘‘on the ‘‘708(a)(11)’’ and add in its place ■ a. In paragraph (a), remove ‘‘, as application’’. ‘‘708(a)’’. The revision reads as follows: amended by Public Law 94–553’’ and ■ b. In paragraph (b)(2), remove ‘‘Chief, remove ‘‘of these regulations’’. § 202.20 Deposit of copies and Information and Records Division of the ■ b. In paragraph (b)(1), remove ‘‘The’’ phonorecords for copyright registration. Copyright Office,’’ add in its place and add in its place ‘‘The’’. * * * * * ‘‘Director of the Office of Public Records ■ c. In paragraph (b)(2)(ii), remove (b) * * * and Repositories at the address ‘‘(b)(2) (iv)’’ and add in its place (2) * * * specified in § 201.1(b)(1) of this ‘‘(b)(2)(iv)’’. (iii) Works submitted for registration chapter,’’, and remove ‘‘(i)’’ and ‘‘(ii)’’. ■ d. Revise paragraph (b)(2)(iii). in digital formats. A ‘‘complete’’ ■ c. In paragraph (c)(2), remove the ■ e. In paragraph (b)(2)(v), remove electronically filed work is one which is word ‘‘of’’ after ‘‘§ 202.20’’. ‘‘§ 202.19(b)(2) of these regulations;’’ embodied in a digital file which ■ d. In paragraph (e)(1), remove and add in its place ‘‘§ 202.19(b)(2)(i).’’. contains: ‘‘708(a)(11)’’ and add in its place ■ f. In paragraph (b)(2)(vi)(B), remove (A) If the work is unpublished, all ‘‘708(a)’’ and add ‘‘of this chapter’’ after the term ‘‘copy;’’ and add in its place authorship elements for which ‘‘§ 201.3(d)’’. the term ‘‘copy.’’. registration is sought; and ■ e. In paragraph (e)(2), add ‘‘of this ■ g. In paragraph (b)(6), remove (B) If the work is published solely in chapter’’ after ‘‘§ 201.3(d)’’ and remove ‘‘§ 202.20’’ and add in its place an electronic format, all elements ‘‘Register of Copyrights’’ and add in its ‘‘section’’ and remove the term ‘‘as’’. constituting the work in its published place ‘‘U.S. Copyright Office’’. ■ h. In paragraph (c)(2)(i)(G), remove form, i.e., the complete work as § 202.24 [Amended] ‘‘(c)(2)(xi)(B)(5)’’ and add in its place published, including metadata and ‘‘(c)(2)(xi)(B)’’. ■ 46. Amend § 202.24 as follows: authorship for which registration is not ■ ■ i. In paragraphs (c)(2)(ii), (c)(2)(iii)(B), sought. Publication in an electronic only a. In paragraphs (a)(1), (c)(1), and (c)(2)(iv), and (c)(2)(v), remove the format requires submission of the digital (c)(2) by removing ‘‘of these phrase ‘‘of these regulations’’ each place file(s) in exact first-publication form and regulations’’. ■ b. In paragraph (d)(1)(i) by removing it appears. content. ■ j. In paragraph (c)(2)(vii)(A)(2), (C) For works submitted ‘‘section 407(d) of Title 17’’ and adding remove ‘‘units, entire’’ and add in its electronically, any of the following file in its place ‘‘17 U.S.C. 407(d)’’. place ‘‘units, the entire’’ and remove formats are acceptable for registration: Appendix B to Part 202 [Amended] ‘‘proportinately’’ and add in its place PDF, TXT, WPD, DOC, TIF, SVG, JPG, ■ 47 Amend Appendix B to Part 202 as ‘‘proportionately’’. XML, HTML, WAV, and MPEG family follows: ■ k. In paragraphs (c)(2)(viii)(A) and of formats, including MP3. This list of ■ a. In the introductory text, designate (c)(2)(x), remove the phrase ‘‘of these file formats is non-exhaustive and it the five undesignated paragraphs as a., regulations’’ each place it appears. may change, or be added to periodically. b., c., d., and e., respectively. ■ l. In paragraph (c)(2)(xi)(A), remove Changes will be noted in the list of ■ b. In paragraph III.A., add a colon to ‘‘of these regulations’’ and add in its acceptable formats on the Copyright the end of the term ‘‘Film’’ and add place ‘‘of this chapter’’. Office Web site. periods to the ends of paragraphs ■ m. In paragraphs (c)(2)(xii) and (D) Contact with the registration III.A.1. through III.A.4. (c)(2)(xiii), remove the phrase ‘‘of these applicant may be necessary if the ■ c. In paragraph III.B., add a colon to regulations’’ each place it appears. Copyright Office cannot access, view, or the end of the words ‘‘Video Formats’’ ■ n. In paragraph (c)(2)(xvi), remove examine the content of any particular and add periods to the ends of ‘‘the deposit phonorecord’’ and add in digital file that has been submitted for paragraphs III.B.1. through III.B.4. its place ‘‘the phonorecord’’. the registration of a work. For purposes ■ d. In paragraph VI.A.1., remove ■ o. In paragraph (c)(2)(xviii)(A), add of 17 U.S.C. 410(d), a deposit has not ‘‘Vocal music:’’ and add in its place footnote 6 after the first sentence, and been received in the Copyright Office ‘‘Vocal music:’’. designate the undesignated text after until a copy that can be reviewed by the ■ e. In paragraph VI.A.1.a., remove paragraph (c)(2)(xviii)(A)(4) as the text Office is received. ‘‘accompaniment—’’ and add in its to footnote 6 with a superscript ‘‘6’’ * * * * * place ‘‘accompaniment:’’. preceding the text. ■ f. In paragraph VI.A.2., remove ■ p. In paragraph (c)(2)(xviii)(B), remove § 202.21 [Amended] ‘‘Instrumental music:’’ and add in its the phrase ‘‘of these regulations’’ and ■ 43. Amend § 202.21 as follows: place ‘‘Instrumental music:’’.
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■ g. In paragraph VIII.A., add a colon to Register on core business functions and liaises with the Department of Justice, the end of the word ‘‘Programs’’. coordinates and directs the day-to-day other federal departments, and the legal ■ h. In paragraph VIII.A.3., remove operations of the Copyright Office. The community on a wide range of copyright ‘‘Format:’’ and add in its place Office of the COO supervises financial matters including litigation and the ‘‘Format:’’. controls, budget, human capital, administration of title 17 of the U.S.C. ■ i. In paragraph VIII.B.4., remove statutory royalty investments, The General Counsel also has primary ‘‘Format’’ and add in its place mandatory deposits and acquisitions, responsibility for the formulation and ‘‘Format:’’. contracts, and strategic planning promulgation of regulations and the ■ j. In paragraph IX.A., add a colon to functions. This Office interacts with adoption of legal positions governing the end of the word ‘‘Serials’’. every other senior management office policy matters and the practices of the ■ k. In paragraph IX.A.1., add a colon to that reports to the Register and Copyright Office. the end of the word ‘‘Format’’. frequently coordinates and assesses (d) The Office of Policy and institutional projects. The COO chairs International Affairs is headed by the PART 203—FREEDOM OF the Copyright Office’s operations Associate Register of Copyrights and INFORMATION ACT: POLICIES AND committee. The following divisions fall Director of Policy and International PROCEDURES under the oversight of the COO: Affairs, who is an expert copyright (1) The Receipt Analysis and Control attorney and one of four legal advisors ■ 48. The authority citation for part 203 Division is responsible for sorting, to the Register. This Office assists the continues to read as follows: analyzing, and scanning incoming mail; Register with critical policy functions of Authority: 17 U.S.C. 702, 5 U.S.C. 552, as creating initial records; labeling the Copyright Office, including amended. materials; and searching, assembling, domestic and international policy ■ 49. Revise § 203.2 to read as follows: and dispatching electronic and analyses, legislative support, and trade hardcopy materials and deposits to the negotiations. Policy and International § 203.2 Authority and functions. appropriate service areas. The Division Affairs represents the Copyright Office The administration of the copyright is responsible for operating the at meetings of government officials law was entrusted to the Library of Copyright Office’s central print room, concerned with the international Congress by an act of Congress in 1870, mail functions, and temporary storage. aspects of intellectual property and the Copyright Office has been a The Division also processes all protection, and provides regular support separate department of the Library since incoming fees and maintains accounts, to Congress and its committees on 1897. The statutory functions of the related records, and reports involving statutory amendments and construction. Copyright Office are contained in and fees received. (e) The Office of Registration Policy carried out in accordance with the (2) The Licensing Division and Practice is headed by the Associate Copyright Act. administers certain statutory licenses set Register of Copyrights and Director of ■ 50. Amend § 203.3 as follows: forth in the Copyright Act. The Division Registration Policy and Practice, who is ■ a. Revise paragraphs (a) through (d). collects royalty payments and examines an expert copyright attorney and one of ■ b. Redesignate paragraphs (e) through statements of account for the cable four legal advisors to the Register. This (g) as paragraphs (i) through (k), statutory license (17 U.S.C. 111), the Office administers the U.S. copyright respectively. satellite statutory license for registration system and advises the ■ c. Add new paragraphs (e) through (g). retransmission of distant television Register of Copyrights on questions of ■ d. Revise paragraph (h). broadcast stations (17 U.S.C. 119), and registration policy and related ■ e. In newly redesignated paragraph (j), the statutory license for digital audio regulations and interpretations of remove ‘‘Avenue, SE, Washington, DC’’ recording technology (17 U.S.C. chapter copyright law. This Office has three and add in its place ‘‘Avenue SE., 10). The Division also accepts and divisions: Literary, Performing Arts, and Washington, DC’’. records documents associated with the Visual Arts. It also has a number of ■ f. Add paragraph (l). use of the mechanical statutory license specialized sections, for example, in the The revisions and additions read as (17 U.S.C. 115). area of motion pictures. This Office follows: (3) The Copyright Acquisitions executes major sections of the Division administers the mandatory Compendium of Copyright Office § 203.3 Organization. deposit requirements of the Copyright Practices, particularly with respect to (a) The Office of the Register of Act, acting as an intermediary between the examination of claims and related Copyrights has overall responsibility for copyright owners of certain published principles of law. the Copyright Office and its statutory works and the acquisitions staff in the (f) The Office of Public Information mandate, specifically: For legal Library of Congress. 17 U.S.C. 407. This and Education is headed by the interpretation of the copyright law; Office creates and updates records for Associate Register for Public administering the provisions of title 17 the copies received by the Copyright Information and Education, who is an of the U.S.C.; promulgating copyright Office; demands particular works or expert copyright attorney and one of regulations; advising Congress and other particular formats of works as necessary; four legal advisors to the Register. This government officials on domestic and and administers deposit agreements Office informs and helps carry out the international copyright policy and other between the Library and copyright work of the Register and the Copyright intellectual property issues; determining owners. Office in providing authoritative personnel and other resource (c) The Office of the General Counsel information about the copyright law to requirements for the Office; organizing is headed by the General Counsel and the public and establishing educational strategic and annual program planning; Associate Register of Copyrights, who is programs. The Office publishes the and preparing budget estimates for an expert copyright attorney and one of copyright law and other provisions of inclusion in the budget of the Library of four legal advisors to the Register. This title 17 of the U.S.C.; maintains a robust Congress and U.S. Government. Office assists the Register in carrying and accurate public Web site; creates (b) The Office of the Chief of out critical work of the Copyright Office and distributes a variety of circulars, Operations is headed by the Chief of regarding the legal interpretation of the information sheets, and newsletters, Operations (‘‘COO’’), who advises the copyright law. The General Counsel including NewsNet; responds to public
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inquiries regarding provisions of the regulations, as well as final regulations General Counsel or his or her delegate law, explaining registration policies, are also available on the Office’s Web within 20 working days. If, on appeal, procedures, and other copyright-related site. The address for the Office’s Web the denial is upheld in whole or in part, topics upon request; plans and executes site is www.copyright.gov. the written determination will include a variety of educational activities; and the basis for the appeal denial and will engages in outreach with various § 203.4 [Amended] also contain a notification of the copyright community stakeholders. ■ 51. Amend § 203.4 as follows: provisions for judicial review and the (g) The Office of Public Records and ■ a. In paragraph (c), remove ‘‘Avenue, names of the persons who participated Repositories is headed by the Director, SE’’ and add in its place ‘‘Avenue SE.’’. in the determination. ■ b. In paragraph (d), remove from the who is an expert in public * * * * * administration and one of the Register’s second sentence ‘‘, Information and top business advisors. This Office is Publications Section, Information and § 203.6 [Amended] responsible for carrying out major Reference Division, Copyright Office, ■ 52. Amend § 203.6 as follows: provisions of title 17 of the U.S.C., Library of Congress, Washington, DC ■ a. In paragraph (a), remove including establishing records policies; 20559–6000,’’ and add in its place ‘‘at ‘‘themseleves’’ from the last sentence ensuring the storage and security of the address specified in § 201.1(c)(1) of and add in its place ‘‘themselves’’. copyright deposits, both analog and this chapter’’, remove ‘‘Avenue, SE,’’ ■ b. In paragraph (e), digital; recording licenses and transfers and add in its place ‘‘Avenue SE.,’’ and ■ 1. Form the first sentence, remove of copyright ownership; preserving, remove in the last sentence ‘‘Office ‘‘amoun t’’ and add in its place maintaining, and servicing copyright- response’’ and add in its place ‘‘Office’s ‘‘amount’’, remove ‘‘praticable’’ and add related records; researching and response’’. in its place ‘‘practicable’’, remove ‘‘his ■ providing certified and non-certified c. Revise paragraphs (f) and (g). ■ willingness’’ and add in its place ‘‘a reproductions of copyright deposits; and d. In paragraph (i)(2), remove ‘‘ten willingness’’, (10)’’ and add in its place ‘‘10’’. maintaining the official records of the ■ 2. From the last sentence, remove The revisions read as follows: Copyright Office. Additionally, the ‘‘offer him’’ and add in its place ‘‘offer Office engages regularly in discussions § 203.4 Methods of operation. the requester’’, remove ‘‘his request’’ with leaders in the private and public * * * * * and add in its place ‘‘the request’’, and sectors regarding issues of metadata, (f) The Office will respond to all remove the ‘‘his needs’’ and add in its interoperability, data management, and properly marked mailed requests and all place ‘‘the requester’s needs’’. open government. personally delivered written requests for PART 204—PRIVACY ACT: POLICIES (h) The Office of the Chief records within 20 working days of AND PROCEDURES Information Officer is headed by the receipt by the Supervisory Copyright Chief Information Officer (‘‘CIO’’), who Information Specialist. If it is ■ 53. The authority citation continues to is the Register’s top advisor on the determined that an extension of time read as follows: development and implementation of greater than 10 working days is Authority: 17 U.S.C. 702, 5 U.S.C. 552(a). technology policy and infrastructure. necessary to respond to a request due to The Office of the CIO provides strategic unusual circumstances, as defined in § 204.4 [Amended] leadership and direction for necessary paragraph (h) of this section, the ■ planning, design, development, and 54. Amend § 204.4 as follows: Supervisory Copyright Information ■ a. In paragraph (a), remove ‘‘Copyright implementation of the Copyright Specialist shall so notify the requester Office’s automated initiatives. The Information Section, Copyright GC/I&R, and give the requester the opportunity P.O. Box 70400,, Washington, DC Office of the CIO is a liaison to the to: central technology office of the Library 20024’’ and add in its place ‘‘U.S. (1) Limit the scope of the request so Copyright Office, P.O. Box 70400, of Congress, which administers the that it may be processed within 20 Copyright Office’s networks and Washington, DC 20024–0400’’. working days, or ■ b. In paragraph (b), remove ‘‘Office’’ communications. The CIO also (2) Arrange with the Office an supervises the Copyright Technology and add in its place ‘‘Office’s’’. alternative time frame for processing the ■ Office. The Copyright Technology Office c. In paragraph (d), remove ‘‘Records’’ request or a modified request. and add in its place ‘‘records’’. maintains certain Copyright Office (g) If a request is denied, the written enterprise-wide IT systems for notification will include the basis for § 204.5 [Amended] registration, recordation, public records the denial, names of all individuals who ■ 55. Amend § 204.5 as follows: management and access, and related participated in the determination, and ■ a. In paragraph (a), remove ‘‘Copyright public services, as well as certain procedures available to appeal the Information Section, Copyright GC/I&R’’ internal and external help-desk determination. If a requester wishes to and add in its place ‘‘U.S. Copyright functions. appeal a denial of some or all of his or Office’’, remove ‘‘20024’’ and add in its * * * * * her request for information, he or she place ‘‘20024–0400’’, and remove the (l) The U.S. Copyright Office makes must make an appeal in writing within phrase ‘‘Avenue, SE’’ and add in its certain documents and records available 30 calendar days of the date of the place the phrase ‘‘Avenue SE.’’. to the public in electronic format Office’s denial. The request should be ■ b. In paragraph (b), remove ‘‘Office’’ pursuant to 5 U.S.C. 552(a)(2). directed to the General Counsel of the and add in its place ‘‘Office’s’’. Copyright Office records in machine- United States Copyright Office at the readable form cataloged from January 1, address specified in § 201.1(c)(1) of this § 204.7 [Amended] 1978, to the present, including chapter. The appeal should be clearly ■ 56. Amend § 204.7 as follows: information regarding registrations and labeled ‘‘Freedom of Information Act ■ a. In paragraph (a), remove ‘‘Copyright recorded documents, are available on Appeal.’’ The appeal shall include a Information Section, Copyright GC/I&R’’ the Office’s Web site. Frequently statement explaining the basis for the and add in its place ‘‘U.S. Copyright requested Copyright Office circulars, appeal. Determinations of appeals will Office’’, remove ‘‘20024’’ and add in its announcements, recently proposed be set forth in writing and signed by the place ‘‘20024–0400’’ and remove
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‘‘Avenue, SE’’ and add in its place Document means any record or paper ■ b. In paragraph (b), remove the comma ‘‘Avenue SE.’’. held by the Copyright Office, including, after ‘‘Avenue’’. ■ b. In paragraph (b), remove ‘‘for Office without limitation, official letters, response’’ and add in its place ‘‘for the deposits, recordations, registrations, §§ 205.6 through 205.10 [Reserved] Office’s response’’, remove ‘‘section publications, or other material ■ 61. Add and reserve §§ 205.6 through 408(d) of Public Law 94–553’’ and add submitted in connection with a claim 205.10 to subpart A. in its place ‘‘17 U.S.C. 408(d)’’ and for registration of a copyrighted work. remove ‘‘, the Office response’’ and add Employee means any current or § 205.11 [Amended] in its place ‘‘, the Office’s response’’. former officer or employee of the ■ 62. Amend § 205.11 in paragraph (a) ■ Copyright Office, as well as any 57. Revise § 204.8 to read as follows: by removing ‘‘Office response’’ from the individual subject to the jurisdiction, fourth sentence and adding in its place § 204.8 Appeal of refusal to correct or supervision, or control of the Copyright amend an individual’s record. Office. ‘‘the Office’s response’’. (a) An individual who disagrees with General Counsel, unless otherwise § 205.13 [Amended] a refusal of the Copyright Office to specified, means the General Counsel amend his or her record may request a and Associate Register of Copyrights or ■ 63. Amend § 205.13 by removing ‘‘, review of the denial. The individual his or her designee. GC/I&R, P.O. Box 70400, Washington, should submit a written appeal to the Legal proceeding means any pretrial, DC 20024–0400’’ and adding in its place General Counsel of the United States trial, and post-trial stages of existing or ‘‘at the address specified in § 201.1(c)(1) Copyright Office at the address specified reasonably anticipated judicial or of this chapter’’ and by removing the in § 201.1(c)(1) of this chapter. Appeals, administrative actions, hearings, comma after ‘‘Avenue’’. and the envelopes containing them, investigations, or similar proceedings §§ 205.14 through 205.20 [Reserved] should be plainly marked ‘‘Privacy Act before courts, commissions, boards or Appeal.’’ Failure to so mark the appeal other tribunals, foreign or domestic. ■ 64. Add and reserve §§ 205.14 through may delay the General Counsel’s This phrase includes all phases of 205.20 to subpart B. response. An appeal should contain a discovery as well as responses to formal copy of the request for amendment or or informal requests by attorneys or § 205.22 [Amended] correction and a copy of the record others involved in legal proceedings. ■ 65. Amend § 205.22 as follows: alleged to be untimely, inaccurate, This phrase also includes state court ■ incomplete, or irrelevant. proceedings (including grand jury a. In paragraph (a)(2), remove ‘‘(e.g., (b) The General Counsel will issue a proceedings) and any other state or local 37 CFR, Chapter II; Compendium II, written decision granting or denying the legislative and administrative Compendium of Copyright Office appeal within 30 working days after proceedings. Practices’’ and add in its place ‘‘(e.g., 37 receipt of the appeal unless, after Office means the Copyright Office, CFR, Chapter II; Compendium of U.S. showing good cause, the General including any division, section, or Copyright Office Practices, Third Counsel extends the 30-day period. If operating unit within the Copyright Edition’’, and remove ‘‘Copyright the appeal is granted, the requested Office. General Counsel’’ and add in its place amendment or correction will be made Official business means the ‘‘General Counsel of the Copyright promptly. If the appeal is denied, in authorized business of the Copyright Office’’. whole or in part, the General Counsel’s Office. ■ b. In paragraph (b), remove ‘‘Counsel, decision will set forth reasons for the Testimony means a statement in any no’’ and add in its place ‘‘Counsel of the denial. Additionally, the decision will form, including a personal appearance Copyright Office, no’’ and remove advise the requester that he or she has before a court or other legal tribunal, an ‘‘Copyright General Counsel’’ and add the right to file with the Copyright interview, a deposition, an affidavit or Office a concise statement of his or her in its place ‘‘General Counsel of the declaration under penalty of perjury Copyright Office’’. reasons for disagreeing with the refusal pursuant to 28 U.S.C. 1746, a to amend the record and that such telephonic, televised, or videotaped ■ c. In paragraph (c), remove ‘‘Copyright statement will be attached to the statement or any response given during Office General Counsel’’ and add in its requester’s record and included in any discovery or similar proceeding, which place ‘‘General Counsel of the Copyright future disclosure of such record. If the response would involve more than the Office’’ and remove ‘‘Copyright General requester is dissatisfied with the production of documents, including a Counsel’’ and add in its place ‘‘General agency’s final determination, the declaration under 35 U.S.C. 25 or a Counsel’’. individual may bring a civil action declaration under penalty of perjury ■ d. In paragraph (f), remove the colon against the Office in the appropriate pursuant to 28 U.S.C. 1746. from the end of the paragraph heading, United States district court. United States means the Federal add in its place a period, and wrap up Government, its departments and PART 205—LEGAL PROCESSES the next paragraph (f)(1). agencies, individuals acting on behalf of ■ 58. The authority citation for part 205 the Federal Government, and parties to § 205.23 [Amended] the extent they are represented by the continues to read as follows: ■ 66. Amend § 205.23 as follows: United States. Authority: 17 U.S.C. 702. ■ a. Redesignate paragraph (b)(4) as ■ 59. Revise § 205.1 to read as follows: § 205.2 [Amended] paragraph (c). ■ 60. Amend § 205.2 as follows: ■ § 205.1 Definitions. b. In newly redesignated paragraph ■ a. In paragraph (a), remove ‘‘, (c), remove ‘‘these limitations’’ and add For the purpose of this part: Copyright GC/I&R, P.O. Box 70400, in its place ‘‘the limitations set forth in Demand means an order, subpoena or Washington, DC 20024–0400’’ and add paragraph (b) of this section’’ and any other request for documents or in its place ‘‘at the address specified in remove ‘‘of this part’’. testimony for use in a legal proceeding. § 201.1(c)(1) of this chapter’’.
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PART 210—COMPULSORY LICENSE original mask work elements fixed in a information maintained under a claim FOR MAKING AND DISTRIBUTING semiconductor chip product at the time of trade secrecy blocked out, provided PHYSICAL AND DIGITAL that product was first commercially that the portions remaining are greater PHONORECORDS FOR exploited and in which the owner or than those which are blocked out. NONDRAMATIC MUSICAL WORKS owners of the mask work is or are the (ii) The identifying portions shall be same. accompanied by a single photograph of ■ 67. The authority citation for part 210 the top or other visible layers of the continues to read as follows: * * * * * ■ 74. Amend § 211.5 as follows: mask work fixed in a semiconductor Authority: 17 U.S.C. 115, 702. ■ a. In paragraph (b), remove ‘‘of these chip product in which the sensitive information maintained under a claim § 210.15 [Amended] regulations’’ and in paragraph (b)(2)(i), remove the space between ‘‘(b)(1)’’ and of trade secrecy has been blocked out, ■ 68. Amend § 210.15 introductory text ‘‘(i)’’. provided that the blocked out portions by removing the term ‘‘Permanently’’ ■ b. Revise paragraphs (c)(1) and (2). do not exceed the remaining portions. and adding in its place the term ■ c. In paragraph (d), remove * * * * * ‘‘permanently’’. ‘‘granted.,’’ and add in its place § 210.17 [Amended] ‘‘granted.’’ and remove ‘‘for Registration PART 212—PROTECTION OF VESSEL ■ 69. Amend § 210.17 as follows: Program, Library of Congress, Copyright DESIGNS ■ a. In paragraph (d)(3)(ix), remove Office—RPO, 101 Independence Avenue, SE, Washington, DC 20559– ■ 75. The authority citation for part 212 ‘‘Compact’’ and add in its place continues to read as follows: ‘‘compact’’ and remove ‘‘Limited’’ and 6200,’’ and add in its place ‘‘of add in its place ‘‘limited’’. Copyrights and Director of Registration Authority: 17 U.S.C. chapter 13. Policy and Practice, P.O. Box 70400, ■ b. In paragraph (h), remove ‘‘6’’ from ■ 76. Revise the part heading as set forth Washington, DC 20024–0400,’’. the second sentence and add in its place above. ‘‘six’’. § 211.5 Deposit of identifying material. ■ 77. In part 212 remove the terms ‘‘hull’’ and ‘‘hulls’’ each place they PART 211—MASK WORK * * * * * appear. PROTECTION (c) * * * (1) Mask works commercially § 212.1 [Amended] ■ 70. The authority citation for part 211 exploited. For commercially exploited ■ is revised to read as follows: mask works no more than two layers of 78. Amend § 212.1 by removing ‘‘vessel’’ and adding in its place Authority: 17 U.S.C. 702, 908. each five or more layers in the work. In lieu of the visually perceptible ‘‘vessels’’. § 211.1 [Amended] representations required under § 212.2 [Amended] ■ 71. Amend § 211.1 in paragraph (a), paragraph (b)(1) of this section, ■ 79. Amend § 212.2 by removing by removing ‘‘shall be addressed to: identifying portions of the withheld ‘‘vessel’’ and adding in its place Library of Congress, Department MW, material must be submitted. For these ‘‘vessels’’. Washington, DC 20540’’ and adding in purposes, ‘‘identifying portions’’ shall its place ‘‘should be sent to the address mean: § 212.3 [Amended] specified in § 201.1(b) of this chapter’’. (i) A printout of the mask work design ■ ■ 80. Amend § 212.3 in paragraph (h) 73. Amend § 211.4 by revising data pertaining to each withheld layer, introductory text by removing ‘‘6’’ and paragraph (b)(1), the introductory text of reproduced in microform; or adding in its place ‘‘six’’. paragraph (d), and paragraph (d)(2) to (ii) Visually perceptible read as follows: representations in accordance with § 212.4 [Amended] paragraph (b)(1)(i), (ii), or (iii) of this ■ 81. In paragraph (a)(2), add ‘‘hull’’ § 211.4 Registration of claims of section with those portions containing protection in mask works. after ‘‘vessel’’. sensitive information maintained under * * * * * a claim of trade secrecy blocked out, § 212.5 [Amended] (b) * * * provided that the portions remaining are ■ 82. Amend § 212.5 as follows: (1) For purposes of registration of greater than those which are blocked ■ mask work claims, the Register of a. In paragraphs (a) through (c), out. remove ‘‘of a vessel’’ and add in its Copyrights has designated ‘‘Form MW’’ (2) Mask work not commercially to be used for all applications. Copies of place ‘‘of a vessel design’’. exploited. (i) For mask works not ■ the form are available free from the b. In paragraph (d), remove ‘‘to: Dept. commercially exploited falling under D–VH, Vessel Hull Registration, P.O. Copyright Office Web site or upon paragraph (b)(2)(i) of this section, any request to the Copyright Information Box 71380, Washington, DC 20024– layer may be withheld. In lieu of the 1380’’ and add in its place ‘‘to the Section, U.S. Copyright Office, Library visually perceptible representations of Congress, Washington, DC 20559– address specified in § 201.1(b)(2) of this required under paragraph (b)(2) of this chapter’’. 6000. section, ‘‘identifying portions’’ shall * * * * * mean: § 212.6 [Amended] (d) Registration as a single work. (A) A printout of the mask work ■ 83. Amend § 212.6 by removing Subject to the exception specified in design data pertaining to each withheld ‘‘design protection of vessel’’ and paragraph (c)(2) of this section, for layer, reproduced in microform, in adding in its place ‘‘the protection of purposes of registration on a single which sensitive information maintained vessel designs’’. application and upon payment of a under a claim of trade secrecy has been single fee, the following shall be blocked out or stripped; or § 212.8 [Amended] considered a single work: (B) Visually perceptible ■ 84. Amend § 212.8 as follows: * * * * * representations in accordance with ■ a. In paragraph (c)(1)(iv), remove (2) In the case of a mask work that has paragraph (b)(2)(i) of this section with ‘‘designers of the vessel’’ and add in its been commercially exploited: All those portions containing sensitive place ‘‘designers of the vessel design’’.
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■ b. In paragraph (c)(2), remove ‘‘he’’ submissions (audio, video, etc.) must be relations, Operating permits, Reporting and add in its place ‘‘the’’ and remove accompanied by a written comment. and recordkeeping requirements. the comma after ‘‘Avenue’’. The written comment is considered the Dated: September 21, 2016. official comment and should include Mark Hague, PARTS 253, 255, 258, 260–263, and discussion of all points you wish to Regional Administrator, Region 7. 270—[REMOVED AND RESERVED] make. The EPA will generally not [FR Doc. 2016–23601 Filed 9–30–16; 8:45 am] ■ consider comments or comment 85. Remove and reserve parts 253, BILLING CODE 6560–50–P 255, 258, 260, 261, 262, 263, and 270. contents located outside of the primary submission (i.e. on the web, cloud, or Dated: August 23, 2016. other file sharing system). For ENVIRONMENTAL PROTECTION Sarang V. Damle, additional submission methods, the full AGENCY General Counsel and Associate Register of EPA public comment policy, Copyrights, U.S. Copyright Office. information about CBI or multimedia 40 CFR Part 62 [FR Doc. 2016–20495 Filed 9–30–16; 8:45 am] submissions, and general guidance on BILLING CODE 1410–30–P making effective comments, please visit [EPA–R08–OAR–2016–0197; FRL–9953–11– http://www2.epa.gov/dockets/ Region 8] commenting-epa-dockets. Approval and Promulgation of State ENVIRONMENTAL PROTECTION FOR FURTHER INFORMATION CONTACT: Air Quality Plans for Designated AGENCY Larry Gonzalez, Environmental Facilities and Pollutants; State of Protection Agency, Air Planning and Wyoming; Control of Emissions From 40 CFR Parts 52 and 70 Development Branch, 11201 Renner Existing Hospital/Medical/Infectious [EPA–R07–OAR–2016–0529; FRL–9953–33– Boulevard, Lenexa, Kansas 66219 at Waste Incinerator Units, Plan Revision Region 7] (913) 551–7041, or by email at [email protected]. AGENCY: Environmental Protection Approval of Missouri’s Air Quality Agency (EPA). SUPPLEMENTARY INFORMATION: This ACTION: Proposed rule. Implementation Plans and Operating document proposes to take action to Permits Program; Greenhouse Gas approve revisions to the Missouri Title SUMMARY: The Environmental Protection Tailoring Rule and Non-Substantive V Operating Permits Program and the Agency (EPA) proposes to approve a Definition and Language Changes Missouri SIP. We have published a revision to the Wyoming hospital/ AGENCY: Environmental Protection direct final rule approving the State’s medical/infectious waste incinerator Agency (EPA). SIP revision(s) in the ‘‘Rules and (HMIWI) Section 111(d)/129 plan (the Regulations’’ section of this Federal ACTION: Proposed rule. ‘‘plan’’). The revision contains a Register, because we view this as a modified state rule for solid waste SUMMARY: Environmental Protection noncontroversial action and anticipate combustion that was updated as a result Agency (EPA) is proposing to approve no relevant adverse comment. We have of the October 6, 2009, amendments to revisions to the Missouri State explained our reasons for this action in federal emission guidelines (EG) and Implementation Plan (SIP) and the 40 the preamble to the direct final rule. If New Source Performance Standards CFR part 70 operating permits program. we receive no adverse comment, we will (NSPS), 40 CFR part 60, subparts Ce and EPA is proposing to approve revisions not take further action on this proposed Ec, respectively. This revision and to two Missouri rule(s) entitled, rule. If we receive adverse comment, we approval action relate only to HMIWI ‘‘Construction Permits Required,’’ and will withdraw the direct final rule and units. it will not take effect. We would address ‘‘Operating Permits.’’ This proposed DATES: Written comments must be action is consistent with the July 12, all public comments in any subsequent received on or before November 2, 2016. final rule based on this proposed rule. 2013, U.S. Court of Appeals for the ADDRESSES: Submit your comments, We do not intend to institute a second District of Columbia and the June 23, identified by Docket ID No. EPA–R08– comment period on this action. Any 2014, U.S. Supreme Court actions OAR–2016–0377, at http:// parties interested in commenting must regarding Greenhouse Gas Prevention of www.regulations.gov. Follow the online do so at this time. For further Significant Deterioration and Title V instructions for submitting comments. information, please see the information Permitting. This action makes non- Once submitted, comments cannot be provided in the ADDRESSES section of substantive changes to definitions, and edited or removed from Regulations.gov. this document. language clarifications. The EPA may publish any comment DATES: Comments must be received by List of Subjects received to its public docket. Do not November 2, 2016. submit electronically any information 40 CFR Part 52 ADDRESSES: Submit your comments, you consider to be Confidential identified by Docket ID No. EPA–R07– Environmental protection, Air Business Information (CBI) or other OAR–2016–0529, http:// pollution control, Carbon monoxide, information whose disclosure is www.regulations.gov. Follow the online Incorporation by reference, restricted by statute. Multimedia instructions for submitting comments. Intergovernmental relations, Lead, submissions (audio, video, etc.,) must be Once submitted, comments cannot be Nitrogen dioxide, Ozone, Particulate accompanied by a written comment. edited or removed from Regulations.gov. matter, Reporting and recordkeeping The written comment is considered the The EPA may publish any comment requirements, Sulfur oxides, Volatile official comment and should include received to its public docket. Do not organic compounds. discussion of all points you wish to submit electronically any information make. The EPA will generally not 40 CFR Part 70 you consider to be Confidential consider comments or comment Business Information (CBI) or other Environmental protection, contents located outside of the primary information whose disclosure is Administrative practice and procedure, submission (i.e., on the web, cloud, or restricted by statute. Multimedia Air pollution control, Intergovernmental other file sharing system). For
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additional submission methods, the full noncontroversial SIP revision and that provision may be severed from the EPA public comment policy, anticipates no adverse comments. A remainder of the rule, the EPA may information about CBI or multimedia detailed rationale for the approval is set adopt as final those provisions of the submissions, and general guidance on forth in the preamble to the direct final rule that are not the subject of an making effective comments, please visit rule. If the EPA receives no adverse adverse comment. See the information http://www2.epa.gov/dockets/ comments, the EPA will not take further provided in the Direct Final action of commenting-epa-dockets. action on this proposed rule. If the EPA the same title which is located in the FOR FURTHER INFORMATION CONTACT: receives adverse comments, the EPA Rules and Regulations Section of this Kendra Morrison, Air Program, U.S. will withdraw the direct final rule and Federal Register. Environmental Protection Agency, it will not take effect. The EPA will Authority: 42 U.S.C. 7401 et seq. Region 8, 1595 Wynkoop Street, Denver, address all public comments in a Dated: May 17, 2016. Colorado 80202–1129, (303) 312–6145, subsequent final rule based on this Shaun L. McGrath, [email protected]. proposed rule. The EPA will not Regional Administrator, Region 8. SUPPLEMENTARY INFORMATION: In the institute a second comment period on ‘‘Rules and Regulations’’ section of this this action. Any parties interested in Editorial Note: This document was Federal Register, the EPA is approving commenting must do so at this time. received for publication by the Office of the Wyoming’s HMIWI plan revision as a Please note that if the EPA receives Federal Register on September 26, 2016. direct final rule without prior proposal adverse comment on an amendment, [FR Doc. 2016–23586 Filed 9–30–16; 8:45 am] because the agency views this as a paragraph, or section of this rule and if BILLING CODE 6560–50–P
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Notices Federal Register Vol. 81, No. 191
Monday, October 3, 2016
This section of the FEDERAL REGISTER according to their wireless plan. The COMMISSION ON CIVIL RIGHTS contains documents other than rules or Commission will not refund any proposed rules that are applicable to the incurred charges. Callers will incur no Notice of Public Meeting of the Indiana public. Notices of hearings and investigations, charge for calls they initiate over land- Advisory Committee for a Meeting for committee meetings, agency decisions and line connections to the toll-free Final Review and Approval of the rulings, delegations of authority, filing of Committee’s Report on Civil Rights petitions and applications and agency telephone number. Persons with hearing statements of organization and functions are impairments may also follow the and the School to Prison Pipeline in examples of documents appearing in this proceedings by first calling the Federal the State section. Relay Service at 1–800–977–8339 and AGENCY: U.S. Commission on Civil providing the Service with the Rights. conference call number and conference COMMISSION ON CIVIL RIGHTS ACTION: Announcement of meeting. ID number. Notice of Public Meeting of the Members of the public are also SUMMARY: Notice is hereby given, Minnesota Advisory Committee for entitled to submit written comments; pursuant to the provisions of the rules Review and Discussion of a Project the comments must be received in the and regulations of the U.S. Commission Proposal To Study Civil Rights and regional office within 30 days following on Civil Rights (Commission) and the Police Relations in Minnesota the meeting. Written comments may be Federal Advisory Committee Act that the Indiana Advisory Committee AGENCY: U.S. Commission on Civil mailed to the Regional Programs Unit Office, U.S. Commission on Civil Rights, (Committee) will hold a meeting on Rights. Tuesday, November 15, 2016, at 4:00 ACTION: Announcement of meeting. 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the p.m. EST for the purpose of discussing a draft report regarding the school to SUMMARY: Notice is hereby given, Commission at (312) 353–8324, or prison pipeline in the state. pursuant to the provisions of the rules emailed to Carolyn Allen at callen@ and regulations of the U.S. Commission usccr.gov. Persons who desire DATES: The meeting will be held on on Civil Rights (Commission) and the additional information may contact the Tuesday, November 15, 2016, at 4:00 Federal Advisory Committee Act that Regional Programs Unit at (312) 353– p.m. EST the Minnesota Advisory Committee 8311. PUBLIC CALL INFORMATION: Dial: 888– (Committee) will hold a meeting on Records generated from this meeting 455–2265, Conference ID: 3309385 Monday, October 31, 2016, at 1:00 p.m. may be inspected and reproduced at the FOR FURTHER INFORMATION CONTACT: CDT for the purpose of reviewing and Melissa Wojnaroski, DFO, at discussing a project proposal to study Regional Programs Unit Office, as they become available, both before and after [email protected] or 312–353– civil rights and police relations in 8311 Minnesota. the meeting. Records of the meeting will be available via www.facadatabase.gov SUPPLEMENTARY INFORMATION: Members DATES: The meeting will be held on under the Commission on Civil Rights, Monday, October 31, 2016, at 1:00 p.m. of the public can listen to the Minnesota Advisory Committee link CDT. discussion. This meeting is available to (http://www.facadatabase.gov/ the public through the following toll- PUBLIC CALL INFORMATION: Dial: 877– committee/meetings.aspx?cid=256). free call-in number: 888–455–2265, 857–6161, Conference ID: 6681139 Persons interested in the work of this conference ID: 3309385. Any interested FOR FURTHER INFORMATION CONTACT: Committee are directed to the member of the public may call this Melissa Wojnaroski, DFO, at Commission’s Web site, http:// number and listen to the meeting. An [email protected] or 312–353– www.usccr.gov, or may contact the open comment period will be provided 8311. Regional Programs Unit at the above to allow members of the public to make SUPPLEMENTARY INFORMATION: Members email or street address. a statement as time allows. The of the public can listen to the conference call operator will ask callers discussion. This meeting is available to Agenda to identify themselves, the organization the public through the following toll- they are affiliated with (if any), and an Welcome and Introductions free call-in number: 877–857–6161, email address prior to placing callers conference ID: 6681139. Any interested Discussion of project proposal: Civil into the conference room. Callers can member of the public may call this Rights and Police Relations in expect to incur regular charges for calls number and listen to the meeting. An Minnesota they initiate over wireless lines, open comment period will be provided Public Comment according to their wireless plan. The to allow members of the public to make Commission will not refund any a statement as time allows. The Future Plans and Actions incurred charges. Callers will incur no conference call operator will ask callers Adjournment charge for calls they initiate over land- to identify themselves, the organization Dated: September 27, 2016. line connections to the toll-free they are affiliated with (if any), and an telephone number. Persons with hearing David Mussatt, email address prior to placing callers impairments may also follow the into the conference room. Callers can Chief, Regional Programs Unit. proceedings by first calling the Federal expect to incur regular charges for calls [FR Doc. 2016–23730 Filed 9–30–16; 8:45 am] Relay Service at 1–800–977–8339 and they initiate over wireless lines, BILLING CODE P providing the Service with the
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conference call number and conference (Committee) will hold a meeting on committee/meetings.aspx?cid=247). ID number. Wednesday, October 19, 2016, at Persons interested in the work of this Members of the public are also 2:00pm EDT for the purpose of Committee are directed to the entitled to submit written comments; discussing a draft report regarding the Commission’s Web site, http:// the comments must be received in the school to prison pipeline in the state. www.usccr.gov, or may contact the regional office one week prior to the DATES: The meeting will be held on Regional Programs Unit Office at the start of the meeting, by Tuesday Wednesday, October 19, 2016, at 2:00 above email or street address. November 8, 2016. Written comments p.m. EDT. Agenda may be mailed to the Regional Programs Public call information: Dial: 888– Unit Office, U.S. Commission on Civil 455–2265, Conference ID: 3309385. Welcome and Introductions Rights, 55 W. Monroe St., Suite 410, FOR FURTHER INFORMATION CONTACT: Discussion Draft Report: Civil Rights Chicago, IL 60615. They may also be Melissa Wojnaroski, DFO, at and the School to Prison Pipeline in faxed to the Commission at (312) 353– [email protected] or 312–353– Indiana 8324, or emailed to Carolyn Allen at 8311. Public Comment [email protected]. Persons who desire Future Plans and Actions SUPPLEMENTARY INFORMATION: Members Adjournment additional information may contact the of the public can listen to the Regional Programs Unit Office at (312) discussion. This meeting is available to Dated: September 27, 2016. 353–8311. the public through the following toll- David Mussatt, Records generated from this meeting free call-in number: 888–455–2265, Chief, Regional Programs Unit. may be inspected and reproduced at the conference ID: 3309385. Any interested Regional Programs Unit Office, as they [FR Doc. 2016–23728 Filed 9–30–16; 8:45 am] member of the public may call this become available, both before and after BILLING CODE 6335–01–P number and listen to the meeting. An the meeting. Records of the meeting will open comment period will be provided be available via www.facadatabase.gov to allow members of the public to make under the Commission on Civil Rights, DEPARTMENT OF COMMERCE a statement as time allows. The Indiana Advisory Committee link conference call operator will ask callers (http://www.facadatabase.gov/ Submission for OMB Review; to identify themselves, the organization committee/meetings.aspx?cid=247). Comment Request they are affiliated with (if any), and an Persons interested in the work of this email address prior to placing callers The Department of Commerce will Committee are directed to the into the conference room. Callers can submit to the Office of Management and Commission’s Web site, http:// expect to incur regular charges for calls Budget (OMB) for clearance the www.usccr.gov, or may contact the they initiate over wireless lines, following proposal for collection of Regional Programs Unit Office at the according to their wireless plan. The information under the provisions of the above email or street address. Commission will not refund any Paperwork Reduction Act (44 U.S.C. Agenda incurred charges. Callers will incur no chapter 35). Agency: U.S. Census Bureau. Welcome and Introductions charge for calls they initiate over land- Title: American Community Survey Civil Rights Report, Final Review and line connections to the toll-free (ACS) Methods Panel, Online Approval telephone number. Persons with hearing Civil Rights and the School to Prison impairments may also follow the Communications Improving Survey Pipeline in Indiana proceedings by first calling the Federal Response Campaign. Public Comment Relay Service at 1–800–977–8339 and OMB Control Number: 0607–0936. Future Plans and Actions providing the Service with the Form Number(s): ACS–1, ACS–1 Adjournment conference call number and conference (Spanish), ACS CATI, ACS CAPI, ACS ID number. Internet. Dated: September 27, 2016. Members of the public are also Type of Request: Nonsubstantive David Mussatt, entitled to submit written comments; Change Request. Chief, Regional Programs Unit. the comments must be received in the Number of Respondents: None. [FR Doc. 2016–23729 Filed 9–30–16; 8:45 am] regional office within 30 days following Average Hours per Response: None. BILLING CODE 6335–01–P the meeting. Written comments may be Burden Hours: No additional burden mailed to the Regional Programs Unit hours are requested under this Office, U.S. Commission on Civil Rights, nonsubstantive change request. COMMISSION ON CIVIL RIGHTS 55 W. Monroe St., Suite 410, Chicago, Needs and Uses: The American IL 60615. They may also be faxed to the Community Survey collects detailed Notice of Public Meeting of the Indiana Commission at (312) 353–8324, or socioeconomic data from about 3.5 Advisory Committee for a Meeting To emailed to Carolyn Allen at callen@ million households in the United States Discuss an Updated Draft Report on usccr.gov. Persons who desire and 36,000 in Puerto Rico each year. Civil Rights and the School to Prison additional information may contact the The ACS also collects detailed Pipeline in the State Regional Programs Unit Office at (312) socioeconomic data from about 195,000 AGENCY: U.S. Commission on Civil 353–8311. residents living in Group Quarter (GQ) Rights. Records generated from this meeting facilities. An ongoing data collection ACTION: Announcement of meeting. may be inspected and reproduced at the effort with an annual sample of this Regional Programs Unit Office, as they magnitude requires that the ACS SUMMARY: Notice is hereby given, become available, both before and after continue research, testing, and pursuant to the provisions of the rules the meeting. Records of the meeting will evaluations aimed at improving data and regulations of the U.S. Commission be available via www.facadatabase.gov quality, achieving survey cost on Civil Rights (Commission) and the under the Commission on Civil Rights, efficiencies, and improving ACS Federal Advisory Committee Act that Indiana Advisory Committee link questionnaire content and related data the Indiana Advisory Committee (http://www.facadatabase.gov/ collection materials. The ACS Methods
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Panel is a research program that is companies and organizations every day. into 24 groups of approximately 12,000 designed to address and respond to We will place video, display banners, addresses each. Each group, called a issues and survey needs. In line with and paid social media advertisements. methods panel group, within a monthly the Census Bureau’s goal to increase Linked households will be served ads sample is representative of the full survey response rates through shortly before they receive a mailed monthly sample. Each monthly sample communications, the Census Bureau survey questionnaire and during the is a representative subsample of the seeks to launch a pilot of a targeted ACS data collection process. Ads will entire annual sample and is digital advertising campaign. During the not directly call on recipients to representative of the sampling frame. 2000 and 2010 decennial enumerations, complete the ACS or any particular The test will include two months of the Census Bureau saw an uptick of survey, nor will they mention any production sample (aiming for January ACS response rates.1 A year-over-year survey by name. Rather they will be and February 2017). We will choose increase of 6.4 percentage points was designed to create positive associations eight randomly selected methods panel observed in the Savannah, GA media with the Census Bureau’s work groups per month for each of the two market during the 2015 Census Site generally and make the case for the experimental treatments; the remaining Test.2 importance of completing a Census eight methods panel groups will be the Outside of decennial years, traditional Bureau questionnaire if selected. When control. Over the two production broad-based advertising methods are an advertisement is clicked, the user months, each treatment will use 16 cost-prohibitive because of the relatively will be directed to a Census.gov web methods panel groups, or a mail out small sample size for most Census landing page featuring general sample of roughly 192,000 addresses, Bureau surveys compared to the general information about the value of the which will be used for linking to population. With the advent of digital Census Bureau’s work and a link to the establish eligibility for micro targeted advertising tactics, however, the Census ‘‘Are You in a Survey?’’ page.3 digital advertising. We estimate that Bureau now has the potential The purpose of this test is to study the approximately 31 percent of the opportunity to cost-effectively deliver impact of these changes on self-response mailable addresses will be eligible for promotional messages to individual behavior and assess any potential digital advertising, which is households within a survey sample. The savings overall or with subgroups. The approximately 30,000 addresses for each ACS offers a large enough national advertisements will include a mix of of the two experimental treatments per sample to field a test of such tactics and online video, banner display ads, and month. determine whether they lift response paid social media content on both We will compare the Internet return rates. If digital advertisements desktop and mobile devices. They will rates at the cut date for the replacement encourage recipients to respond to a be displayed around the web on various mailing, the Internet, mail, and self- survey early in the process of data Web sites targeted to linked households response return rates before the start of collection, including responding online, in the treatment groups. Ad serving will Computer Assisted Telephone then the Census Bureau will save money be optimized based on audience reach Interviewing (CATI), and the Internet, on costly follow-up efforts to collect and user engagement with the ads mail, self-response, and CATI return data from nonrespondents, including (measured in terms of video and click rates prior to the start of Computer sending Census Bureau interviewers to metrics). The optimal media mix will be Assisted Personal Interviewing (CAPI). respondents’ households in person. applied evenly across both treatments. We will compare the self-response and Offsetting data-collection costs in this We will prioritize rich media CAPI return rates as well as the overall way would ultimately save taxpayers placements including video and social response rates when all data collection money. Findings from this pilot video over standard placements such as activities end. Additionally, the overall campaign will have applications across banner display, with the goal to response rate will be calculated for all the range of the Census Bureau’s maximize video advertising to tell a sample addresses. For each comparison, collection efforts as advertisements will compelling story to raise awareness of we will use a = 0.1 and a two-tailed test not be survey-specific and will focus on the Census Bureau’s work. so that we can measure the impact on the value of the Census Bureau’s work This pilot will include two the evaluation measure in either in general. experimental treatments (a high-spend direction with 80 percent power. Based We propose to execute the pilot group and a low-spend group) as well as on previous year’s data for the January campaign aiming to using the January a control group. Households in the high- and February panels we calculated and February 2017 ACS production spend group will receive roughly twice effective sample sizes. We assumed an samples. We will deliver targeted digital the number of advertisement exposures Undeliverable as Addressed (UAA) rate advertisements to a panel of in-sample as households in the low-spend of 18.0 percent (these addresses may be residents that can be linked by treatment group, though the channel advertised to, but will be removed from household address to digital profiles mix and content of the advertisements self-response analysis because they do (including cookies and/or device ID) by will remain the same between the two not have an opportunity to respond), a a third-party data vendor. This groups. The Control group will not self-response rate of 57.5 percent for all technique is an emerging standard in receive any advertisements. three groups, a CATI response rate of 25 online advertising, in line with the To field this test, we plan to use ACS percent, and a CAPI response rate of 85 advertising households receive from production (clearance number: 0607– percent. We expect to be able to detect 0810, expires 06/30/2018). Thus, there self-response differences between the 1 Chesnut, J. & M. Davis. (2011). ‘‘Evaluation of is no increase in burden from this test high- and low-spend treatment panel of the ACS Mail Materials and Mailing Strategy during 0.8 percentage points, and between a the 2010 Census.’’ American Community Survey since the treatment will result in Research and Evaluation Program. U.S. Census approximately the same burden estimate treatment panel and the control on the Bureau. per interview (40 minutes). The ACS order of 0.8 percentage points. 2 Walejko, G. et al. (2015). ‘‘Modeling the Effect sample design consists of randomly Additional metrics of interest include of Diverse Communication Strategies on Decennial overall costs and response rates by Census Test Response Rates.’’ Presentation. 2015 assigning each monthly sample panel Federal Committee on Statistical Methodology subgroups. Research Conference. December 2nd, 2015. 3 See https://www.census.gov/programs-surveys/ Affected Public: Individuals or Washington, DC. are-you-in-a-survey.html. households.
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Frequency: One-time test as part of (DOC), announces the appointment of Board is responsible for (1) reviewing the monthly American Community those individuals who have been performance appraisals and ratings of Survey. selected to serve as members of the Senior Executive Service (SES) and Respondent’s Obligation: Mandatory. Departmental Performance Review Senior Level (SL) members and (2) Legal Authority: Title 13, United Board. The Performance Review Board making recommendations to the States Code, Sections 141, 193, and 221. is responsible for (1) reviewing appointing authority on other This information collection request performance appraisals and ratings of performance management issues, such may be viewed at www.reginfo.gov. Senior Executive Service (SES) members as pay adjustments, bonuses and Follow the instructions to view and (2) making recommendations to the Presidential Rank Awards. The Department of Commerce collections appointing authority on other appointment of these members to the currently under review by OMB. performance management issues, such Performance Review Board will be for a Written comments and as pay adjustments, bonuses and period of twenty-four (24) months. recommendations for the proposed Presidential Rank Awards. The DATES: The period of appointment for information collection should be sent appointment of these members to the those individuals selected for the Office within 30 days of publication of this Performance Review Board will be for a of the Secretary Performance Review notice to [email protected]. period of twenty-four (24) months. Board begins on October 3, 2016. gov or fax to (202) 395–5806. The name, position title, and type of FOR FURTHER INFORMATION CONTACT: Sheleen Dumas, appointment of each member of the Nancy Osborn, U.S. Department of Performance Review Board are set forth PRA Departmental Lead, Office of the Chief Commerce, Office of Human Resources Information Officer. below: Management, Office of Executive [FR Doc. 2016–23821 Filed 9–30–16; 8:45 am] 1. Jon Alexander, Deputy Director, Resources, 14th and Constitution Financial Management Systems, Avenue NW., Room 51010, Washington, BILLING CODE 3510–07–P Career SES DC 20230, at (202) 482–5815. 2. Dennis Alvord, Senior Advisor for SUPPLEMENTARY INFORMATION: In DEPARTMENT OF COMMERCE Policy and Program Integration, accordance with 5 U.S.C. 4314(c)(4), the Career SES Office of the Secretary, Department of Membership of the Departmental 3. Stephen Burke, Chief Financial Commerce (DOC), announces the Performance Review Board Officer and Director for appointment of those individuals who Administration, Career SES have been selected to serve as members AGENCY: Department of Commerce. 4. Kathleen James, Chief Administrative of the Office of the Secretary ACTION: Notice of membership on the Officer, Career SES Performance Review Board. The Departmental Performance Review 5. Lauren Leonard, Director of the Office Performance Review Board is Board. of White House Liaison and Senior responsible for (1) reviewing Advisor to the Secretary, Noncareer SUMMARY: In accordance with statutes performance appraisals and ratings of SES Senior Executive Service (SES) and on ratings for performance appraisals, 6. Holly Vineyard, Deputy Assistant the Department of Commerce (DOC), Senior Level (SL) members and (2) Secretary for Global Markets, Career making recommendations to the announces the appointment of those SES individuals who have been selected to appointing authority on other serve as members of the Departmental Dated: September 20, 2016. performance management issues, such Performance Review Board. The Denise A. Yaag, as pay adjustments, bonuses and Performance Review Board is Director, Office of Executive Resources, Office Presidential Rank Awards. The responsible for reviewing performance of Human Resources Management, Office of appointment of these members to the appraisals and ratings of Senior the Secretary/Office of the CFO/ASA, Performance Review Board will be for a Department of Commerce. Executive Service (SES) members and period of twenty-four (24) months. making recommendations to the [FR Doc. 2016–23659 Filed 9–30–16; 8:45 am] DATES: The period of appointment for appointing authority on other BILLING CODE 3510–25–P those individuals selected for the Office performance management issues, such of the Secretary Performance Review as pay adjustments, bonuses and Board begins on October 3, 2016. The DEPARTMENT OF COMMERCE Presidential Rank Awards. The name, position title, and type of appointment of each member of the appointment of these members to the Office of the Secretary Performance Review Board will be for a Performance Review Board are set forth period of twenty-four (24) months. Membership of the Performance below: DATES: The period of appointment for Review Board for the Office of the 1. Gordon Alston, Director, Financial those individuals selected for the Secretary Reporting and Internal Controls, Departmental Performance Review Career SES AGENCY: Office of the Secretary, Board begins on October 3, 2016. 2. Paige Atkins, Associate Administrator Department of Commerce. for Spectrum Management, Career FOR FURTHER INFORMATION CONTACT: ACTION: Notice of membership on the SES Nancy Osborn, U.S. Department of Office of the Secretary Performance 3. Kurt Bersani, Deputy Chief Financial Commerce, Office of Human Resources Review Board. and Administrative Officer, Career Management, Office of Executive SES Resources, 14th and Constitution SUMMARY: In accordance with 5 U.S.C. 4. Theodore LeCompte, Deputy Chief of Avenue NW., Room 51010, Washington, 4314(c)(4), the Office of the Secretary, Staff and Senior Advisor to the DC 20230, at (202) 482–5815. Department of Commerce (DOC), Secretary, Noncareer SES SUPPLEMENTARY INFORMATION: In announces the appointment of those 5. Lauren Leonard, Director of the Office accordance with Ratings for individuals who have been selected to of White House Liaison and Senior Performance Appraisals, 5 U.S.C. serve as members of the Performance Advisor to the Secretary, Noncareer 4314(c)(4), the Department of Commerce Review Board. The Performance Review SES
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6. Catrina Purvis, Chief Privacy Officer International Trade Commission (ITC), exists, as defined by section 705(e) of and Director of Open Government, the Department is issuing countervailing the Act and 19 CFR 351.224(f).3 See Career SES duty (CVD) orders on certain hot-rolled ‘‘Amendment to the Korea Final 7. Rodney Turk, Director of Cyber steel flat products (hot-rolled steel) from Determination’’ section below for Security and Chief Information Brazil and the Republic of Korea further discussion. Security Officer, Career SES (Korea). In addition, the Department is On September 26, 2016, the ITC Dated: September 20, 2016. amending its final affirmative notified the Department of its final determination with respect to Korea to determinations that an industry in the Denise A. Yaag, correct the rate assigned to POSCO. United States is materially injured by Director, Office of Executive Resources, Office DATES: Effective October 3, 2016. reason of subsidized imports of subject of Human Resources Management, Office of merchandise from Brazil and Korea, the Secretary/Office of the CFO/ASA, FOR FURTHER INFORMATION CONTACT: Department of Commerce. Sergio Balbontin at (202) 482–6478 within the meaning of section 705(b)(1)(A)(i) of the Act and that [FR Doc. 2016–23655 Filed 9–30–16; 8:45 am] (Brazil); and Katie Marksberry at (202) critical circumstances do not exist with BILLING CODE 3510–25–P 482–7906 (Korea); AD/CVD Operations, Enforcement and Compliance, respect to imports of subject 4 International Trade Administration, merchandise from Brazil. DEPARTMENT OF COMMERCE U.S. Department of Commerce, 1401 Scope of the Orders Constitution Avenue NW., Washington, The products covered by these orders Foreign-Trade Zones Board DC 20230. are certain hot-rolled steel flat products. [B–40–2016] SUPPLEMENTARY INFORMATION: For a complete description of the scope Background of the orders, see Appendix I. Foreign-Trade Zone (FTZ) 133—Quad- Cities, Iowa/Illinois; Authorization of In accordance with section 705(a) of Amendment to the Korea CVD Final Production Activity; Deere & Company, the Tariff Act of 1930, as amended (the Determination Subzone 133F, (Construction and Act), and 19 CFR 351.210(c), on August As discussed above, after analyzing Forestry Equipment), Dubuque, Iowa 4, 2016, the Department made final the comments received from Hyundai determinations that countervailable Steel and POSCO, we determined, in On May 26, 2016, Deere & Company subsidies are being provided to accordance with section 705(e) of the submitted a notification of proposed producers and exporters of hot-rolled Act and 19 CFR 351.224(f), that we 1 production activity to the Foreign-Trade steel from Brazil and Korea. Pursuant made a ministerial error with regard to Zones (FTZ) Board for its facility within to section 705(d) of the Act, the certain calculations in the Korea CVD Subzone 133F, in Dubuque, Iowa. Department published the affirmative Final Determination with respect to The notification was processed in final determinations on August 12, POSCO. This amended final CVD 2 accordance with the regulations of the 2016. determination corrects these errors and FTZ Board (15 CFR part 400), including On August 12, 2016, Hyundai Steel revises the ad valorem subsidy rate for notice in the Federal Register inviting and POSCO timely filed ministerial POSCO to 58.68 percent (from 57.04 public comment (81 FR 39890, June 20, error comments, alleging that the percent).5 There is no change to the ‘‘all 2016). The FTZ Board has determined Department made errors in the final others’’ rate because POSCO’s rate was that no further review of the activity is determination of the CVD investigation determined entirely under section 776 warranted at this time. The production of hot-rolled steel from Korea. On of the Act, and therefore, excluded from activity described in the notification is August 17, 2016, Nucor Corporation the ‘‘all others’’ rate calculation. authorized, subject to the FTZ Act and (Petitioner) filed rebuttal comments. We the Board’s regulations, including analyzed the allegations submitted by Countervailing Duty Orders Section 400.14. Hyundai Steel and POSCO, and In accordance with sections determined that one ministerial error Dated: September 23, 2016. 705(b)(1)(A)(i), and 705(d) of the Act, Andrew McGilvray, the ITC has notified the Department of 1 Pursuant to section 735(c)(2) of the Act, we have its final determinations that the industry Executive Secretary. terminated the countervailing duty investigation of in the United States producing hot- [FR Doc. 2016–23827 Filed 9–30–16; 8:45 am] hot-rolled steel from Turkey because the ITC found imports subsidized by the government of Turkey to rolled steel is materially injured by BILLING CODE 3510–DS–P be negligible, see Letter to Christian Marsh, Deputy reason of subsidized imports of hot- Assistant Secretary of Commerce for Enforcement rolled steel from Brazil and Korea, and and Compliance, from Irving Williamson, Chairman DEPARTMENT OF COMMERCE of the U.S. International Trade Commission, that critical circumstances do not exist regarding antidumping and countervailing duty with respect to imports of subject International Trade Administration investigations concerning imports of certain hot- merchandise from Brazil.6 Therefore, in rolled steel flat products from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the [C–351–846, C–580–884] 3 United Kingdom (Investigation Nos. 701–TA–545– See Department Memorandum regarding 547 and 731–TA–1291–1297 (September 26, 2016) ‘‘Countervailing Duty Investigation: Certain Hot- Certain Hot-Rolled Steel Flat Products (ITC Letter). Rolled Steel Flat Products from the Republic of From Brazil and the Republic of Korea: 2 See Countervailing Duty Investigation of Certain Korea: Response to Ministerial Error Comments Amended Final Affirmative Hot-Rolled Steel Flat Products from Brazil: Final filed by Hyundai Steel Co., Ltd. and POSCO,’’ dated Countervailing Duty Determinations Affirmative Determination, and Final August 23, 2016 (Korea Ministerial Error Decision Determination of Critical Circumstances, in Part, 81 Memorandum). and Countervailing Duty Orders 4 FR 53416 (August 12, 2016) (Brazil CVD Final See ITC Letter. 5 See Korea Ministerial Error Decision AGENCY: Determination); Countervailing Duty Investigation Enforcement and Compliance, of Certain Hot-Rolled Steel Flat Products from the Memorandum. See also Department Memorandum International Trade Administration, Republic of Korea: Final Affirmative Determination, regarding ‘‘Countervailing Duty Investigation of Department of Commerce. 81 FR 53439 (August 12, 2016) (Korea CVD Final Certain Hot-Rolled Steel Flat Products from the Republic of Korea: Amended Final Determination SUMMARY: Determination); Countervailing Duty Investigation Based on affirmative final of Certain Hot-Rolled Steel Flat Products From the Calculation Memorandum for POSCO,’’ dated determinations by the Department of Republic of Turkey: Final Affirmative August 23, 2016. Commerce (the Department) and the Determination, 81 FR 53433 (August 12, 2016). 6 See ITC Letter.
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accordance with section 705(c)(2) of the published the Korea CVD Final section 706(a) of the Act. Interested Act, we are publishing these CVD Determination in the Federal Register. parties can find a list of countervailing orders. duty orders currently in effect at http:// Suspension of Liquidation enforcement.trade.gov/stats/ Brazil In accordance with section 706 of the iastats1.html. As a result of the ITC’s final Act, we will direct CBP to reinstitute the These orders are issued and published determinations, in accordance with suspension of liquidation of hot-rolled in accordance with section 706(a) of the section 706(a) of the Act, the steel from Brazil effective on the date of Act and 19 CFR 351.211(b). Department will direct U.S. Customs publication of the ITC’s notice of final Dated: September 27, 2016. and Border Protection (CBP) to assess, determinations in the Federal Register, Paul Piquado, upon further instruction by the and to continue the suspension of Department, countervailing duties on liquidation of hot-rolled steel from Assistant Secretary for Enforcement and Compliance. unliquidated entries of hot-rolled steel Korea, effective on the date of from Brazil entered, or withdrawn from publication of the Department’s notice Appendix I warehouse, for consumption on or after of final determination in the Federal The products covered by this order are January 15, 2016, the date on which the Register. We will also direct CBP to certain hot-rolled, flat-rolled steel products, Department published its preliminary assess, upon further instruction by the with or without patterns in relief, and affirmative countervailing duty Department, pursuant to section whether or not annealed, painted, varnished, determinations in the Federal Register,7 706(a)(1) of the Act, countervailing or coated with plastics or other non-metallic and before May 14, 2016, the date on duties for each entry of the subject substances. The products covered do not which the Department instructed CBP to merchandise in an amount based on the include those that are clad, plated, or coated discontinue the suspension of net countervailable subsidy rates for the with metal. The products covered include liquidation in accordance with section subject merchandise. coils that have a width or other lateral 703(d) of the Act. Section 703(d) of the measurement (‘‘width’’) of 12.7 mm or Act states that the suspension of Critical Circumstances greater, regardless of thickness, and regardless of form of coil (e.g., in liquidation pursuant to a preliminary With regard to the ITC’s negative successively superimposed layers, spirally determination may not remain in effect critical circumstances determination on oscillating, etc.). The products covered also for more than four months. Therefore, imports of hot-rolled steel from Brazil, include products not in coils (e.g., in straight entries of hot-rolled steel from Brazil we will instruct CBP to lift suspension lengths) of a thickness of less than 4.75 mm made on or after May 14, 2016, and and to refund any cash deposits made and a width that is 12.7 mm or greater and prior to the date of publication of the to secure the payment of estimated that measures at least 10 times the thickness. ITC’s final determination in the Federal countervailing duties with respect to The products described above may be Register, are not liable for assessment of entries of the subject merchandise rectangular, square, circular, or other shape countervailing duties due to the entered, or withdrawn from warehouse and include products of either rectangular or Department’s discontinuation, effective non-rectangular cross-section where such for consumption on or after October 17, cross-section is achieve subsequent to the May 14, 2016, of the suspension of 2015 (i.e., 90 days prior to the date of rolling process, i.e., products which have liquidation. the publication of the CVD Preliminary been ‘‘worked after rolling’’ (e.g., products Korea Determination), but before January 15, which have been beveled or rounded at the 2016 (i.e., the date of publication of the edges). For purposes of the width and Because the Department’s preliminary CVD Preliminary Determination). thickness requirements referenced above: determination in the Korea CVD On or after the date of publication of (1) Where the nominal and actual investigation was negative, we did not the ITC’s final injury determinations in measurements vary, a product is within the instruct CBP to suspend liquidation the Federal Register, CBP must require, scope if application of either the nominal or with regard to entries of hot-rolled steel at the same time as importers would actual measurement would place it within 8 the scope based on the definitions set forth from Korea. The Department’s final normally deposit estimated duties on determination was affirmative, and above unless the resulting measurement this merchandise, a cash deposit equal makes the product covered by the existing therefore, we directed CBP to suspend to the rates noted below: 10 11 9 antidumping or countervailing duty liquidation. Therefore, with regard to orders on Certain Cut-To-Length Carbon- Korea, we will direct CBP to assess, Subsidy Quality Steel Plate Products From the upon further instruction by the Exporter/proucer from Brazil rate Republic of Korea (A–580–836; C–580–837), Department, countervailing duties on (percent) and unliquidated entries of hot-rolled steel (2) where the width and thickness vary for Companhia Siderurgica Nacional entered, or withdrawn from warehouse, a specific product (e.g., the thickness of (CSN) ...... 11.30 certain products with non-rectangular cross- for consumption on or after August 12, Usinas Siderurgicas de Minas section, the width of certain products with 2016, the date on which the Department Gerais S.A. (Usiminas) ...... 11.09 non-rectangular shape, etc.), the All Others ...... 11.20 measurement at its greatest width or 7 See Countervailing Duty Investigation of Certain Cold-Rolled Steel Flat Products from Brazil: thickness applies. Preliminary Affirmative Determination and Subsidy Alignment of Final Determination With Final Exporter/proucer from Korea rate 10 See Notice of Amendment of Final Antidumping Duty Determination, 81 FR 2168 (percent) Determinations of Sales at Less Than Fair Value (January 15, 2016) (Brazil CVD Preliminary and Antidumping Duty Orders: Certain Cut-To- Determination). POSCO ...... 58.68 Length Carbon-Quality Steel Plate Products From 8 See Countervailing Duty Investigation of Certain Hyundai Steel Co., Ltd ...... 3.89 France, India, Indonesia, Italy, Japan and the Hot-Rolled Steel Flat Products from the Republic of All Others ...... 3.89 Republic of Korea, 65 FR 6585 (February 10, 2000). Korea: Preliminary Negative Determination and 11 See Notice of Amended Final Determinations: Alignment of Final Determination With Final Certain Cut-to-Length Carbon-Quality Steel Plate Antidumping Duty Determination, 81 FR 2172 Notifications to Interested Parties From India and the Republic of Korea; and Notice (January 15, 2016) (Korea CVD Preliminary This notice constitutes the CVD of Countervailing Duty Orders: Certain Cut-To- Determination). Length Carbon-Quality Steel Plate From France, 9 See Korea CVD Final Determination, 81 FR at orders with respect to hot-rolled steel India, Indonesia, Italy, and the Republic of Korea, 53440. from Brazil and Korea, pursuant to 65 FR 6587 (February 10, 2000).
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Steel products included in the scope of this • Ball bearing steels; 13 DEPARTMENT OF COMMERCE order are products in which: (1) Iron • Tool steels; 14 and predominates, by weight, over each of the • Silico-manganese steels; 15 International Trade Administration other contained elements; (2) the carbon The products subject to this order are content is 2 percent or less, by weight; and currently classified in the Harmonized Tariff (3) none of the elements listed below exceeds [A–602–809, A–351–845, A–588–874, A–580– Schedule of the United States (‘‘HTSUS’’) the quantity, by weight, respectively 883, A–421–813, A–489–826, A–412–825] under item numbers: 7208.10.1500, indicated: 7208.10.3000, 7208.10.6000, 7208.25.3000, • 2.50 percent of manganese, or Certain Hot-Rolled Steel Flat Products 7208.25.6000, 7208.26.0030, 7208.26.0060, • 3.30 percent of silicon, or From Australia, Brazil, Japan, the • 1.50 percent of copper, or 7208.27.0030, 7208.27.0060, 7208.36.0030, Republic of Korea, the Netherlands, • 1.50 percent of aluminum, or 7208.36.0060, 7208.37.0030, 7208.37.0060, the Republic of Turkey, and the United • 1.25 percent of chromium, or 7208.38.0015, 7208.38.0030, 7208.38.0090, Kingdom: Amended Final Affirmative • 0.30 percent of cobalt, or 7208.39.0015, 7208.39.0030, 7208.39.0090, Antidumping Determinations for • 0.40 percent of lead, or 7208.40.6030, 7208.40.6060, 7208.53.0000, Australia, the Republic of Korea, and • 2.00 percent of nickel, or 7208.54.0000, 7208.90.0000, 7210.70.3000, • the Republic of Turkey and 0.30 percent of tungsten, or 7211.14.0030, 7211.14.0090, 7211.19.1500, Antidumping Duty Orders • 0.80 percent of molybdenum, or 7211.19.2000, 7211.19.3000, 7211.19.4500, • 0.10 percent of niobium, or 7211.19.6000, 7211.19.7530, 7211.19.7560, • AGENCY: Enforcement and Compliance, 0.30 percent of vanadium, or 7211.19.7590, 7225.11.0000, 7225.19.0000, • 0.30 percent of zirconium. International Trade Administration, 7225.30.3050, 7225.30.7000, 7225.40.7000, Department of Commerce. Unless specifically excluded, products are 7225.99.0090, 7226.11.1000, 7226.11.9030, included in this scope regardless of levels of 7226.11.9060, 7226.19.1000, 7226.19.9000, SUMMARY: Based on affirmative final boron and titanium. 7226.91.5000, 7226.91.7000, and determinations by the Department of For example, specifically included in this 7226.91.8000. The products subject to the Commerce (the Department) and the scope are vacuum degassed, fully stabilized International Trade Commission (the (commonly referred to as interstitial-free (IF)) order may also enter under the following steels, high strength low alloy (HSLA) steels, HTSUS numbers: 7210.90.9000, ITC), the Department is issuing the substrate for motor lamination steels, 7211.90.0000, 7212.40.1000, 7212.40.5000, antidumping duty orders on certain hot- Advanced High Strength Steels (AHSS), and 7212.50.0000, 7214.91.0015, 7214.91.0060, rolled steel flat products (hot-rolled Ultra High Strength Steels (UHSS). IF steels 7214.91.0090, 7214.99.0060, 7214.99.0075, steel) from Australia, Brazil, Japan, the are recognized as low carbon steels with 7214.99.0090, 7215.90.5000, 7226.99.0180, Republic of Korea, the Netherlands, the micro-alloying levels of elements such as and 7228.60.6000. Republic of Turkey, and the United titanium and/or niobium added to stabilize The HTSUS subheadings above are Kingdom. In addition, the Department is carbon and nitrogen elements. HSLA steels provided for convenience and U.S. Customs amending its final determinations of are recognized as steels with micro-alloying purposes only. The written description of the levels of elements such as chromium, copper, sales at less-than-fair-value (LTFV) from niobium, titanium, vanadium, and scope of the order is dispositive. Australia, the Republic of Korea, and molybdenum. The substrate for motor [FR Doc. 2016–23835 Filed 9–30–16; 8:45 am] the Republic of Turkey, as a result of lamination steels contains micro-alloying BILLING CODE 3510–DS–P ministerial errors. levels of elements such as silicon and DATES: aluminum. AHSS and UHSS are considered Effective October 3, 2016. rolling or other minor rolling operations after the high tensile strength and high elongation FOR FURTHER INFORMATION CONTACT hot-rolling process for purposes of surface finish, : steels, although AHSS and UHSS are covered flatness, shape control, or gauge control do not Frances Veith at (202) 482–4295 whether or not they are high tensile strength constitute cold-rolling sufficient to meet this (Australia); Peter Zukowski at (202) or high elongation steels. exclusion. 482–0189 (Brazil); Myrna Lobo at (202) Subject merchandise includes hot-rolled 13 Ball bearing steels are defined as steels which 482–2371 (Japan); Matthew Renkey at steel that has been further processed in a contain, in addition to iron, each of the following third country, including but not limited to elements by weight in the amount specified: (i) Not (202) 482–2312 (the Republic of Korea pickling, oiling, levelling, annealing, less than 0.95 nor more than 1.13 percent of carbon; (Korea)); Dmitry Vladimirov at (202) tempering, temper rolling, skin passing, (ii) not less than 0.22 nor more than 0.48 percent 482–0665, (the Netherlands); Toni Page painting, varnishing, trimming, cutting, of manganese; (iii) none, or not more than 0.03 at (202) 482–1398 (the Republic of punching, and/or slitting, or any other percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor Turkey (Turkey)); and Catherine Cartsos processing that would not otherwise remove more than 0.37 percent of silicon; (vi) not less than at (202) 482–1757 (the United the merchandise from the scope of the orders 1.25 nor more than 1.65 percent of chromium; (vii) Kingdom), AD/CVD Operations, if performed in the country of manufacture none, or not more than 0.28 percent of nickel; (viii) Enforcement and Compliance, U.S. of the hot-rolled steel. none, or not more than 0.38 percent of copper; and All products that meet the written physical (ix) none, or not more than 0.09 percent of Department of Commerce, 1401 description, and in which the chemistry molybdenum. Constitution Avenue NW., Washington, quantities do not exceed any one of the noted 14 Tool steels are defined as steels which contain DC 20230. element levels listed above, are within the the following combinations of elements in the SUPPLEMENTARY INFORMATION: scope of these orders unless specifically quantity by weight respectively indicated: (i) More excluded. The following products are outside than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon Background of and/or specifically excluded from the and 1.25 percent or more but less than 10.5 percent scope of this order: chromium; or (iii) not less than 0.85 percent carbon In accordance with sections 735(a) • Universal mill plates (i.e., hot-rolled, and 1 percent to 1.8 percent, inclusive, manganese; and 777(i)(1) of the Tariff Act of 1930, flat-rolled products not in coils that have or (iv) 0.9 percent to 1.2 percent, inclusive, as amended (the Act), and 19 CFR been rolled on four faces or in a closed box chromium and 0.9 percent to 1.4 percent, inclusive, 351.210(c), on August 4, 2016, the pass, of a width exceeding 150 mm but not molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) Department made affirmative final exceeding 1250 mm, of a thickness not less determinations in the LTFV than 4.0 mm, and without patterns in relief); not less than 0.5 percent carbon and not less than • 5.5 percent tungsten. investigations of certain hot-rolled steel Products that have been cold-rolled 15 12 Silico-manganese steel is defined as steels flat from Australia, Brazil, Japan, Korea, (cold-reduced) after hot-rolling; containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than the Netherlands, Turkey, and the United 12 For purposes of this scope exclusion, rolling 1.9 percent of manganese, and (iii) 0.6 percent or Kingdom. Pursuant to section 735(d) of operations such as a skin pass, levelling, temper more but not more than 2.3 percent of silicon. the Act, the Department published the
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affirmative final determinations on Determinations’’ sections below for Amendment to Korea Final August 12, 2016. 1 further discussion. Determination On August 15, 2016, Petitioners 2 On September 26, 2016, the ITC The Department reviewed the record alleged that the Department made notified the Department of its and agrees that the error referenced in ministerial errors in the Australia affirmative determination that an Petitioners’ allegation with respect to Final.3 A ministerial error is defined as industry in the United States is POSCO constitutes a ministerial error an error in addition, subtraction, or materially injured within the meaning within the meaning of section 735(e) of other arithmetic function, clerical error of section 735(b)(1)(A)(i) of the Act, by the Act and 19 CFR 351.224(f), whereas resulting from inaccurate copying, reason of LTFV imports of hot-rolled neither the errors alleged by Hyundai duplication, or the like, and any other steel from Australia, Brazil, Japan, Steel Company, nor the error alleged by similar type of unintentional error Korea, the Netherlands, Turkey, and the Petitioners with respect to Hyundai 12 which the Secretary considers United Kingdom and of its Steel Company, are ministerial errors. ministerial.4 On August 10, 2016, determination that critical Specifically, the programming code used in POSCO’s final margin Petitioners and Hyundai Steel Company circumstances do not exist with respect calculation program did not correctly alleged that the Department made to imports of hot-rolled steel from Brazil and Japan.8 implement certain revised indirect ministerial errors in the Korea Final. On selling expense figures.13 Additionally, August 15, 2016, POSCO submitted Scope of the Orders we find that the alleged errors regarding rebuttal comments to Petitioners’ our final Hyundai Steel Company allegation, and Petitioners submitted The product covered by these orders margin calculation are methodological, rebuttal comments to Hyundai Steel is hot-rolled steel from Australia, Brazil, rather than ministerial, in nature.14 Company’s allegation.5 On August 11 Japan, Korea, the Netherlands, Turkey, Pursuant to 19 CFR 351.224(e), the and 12, 2016, mandatory respondent and the United Kingdom. For a Department is amending the Korea Final Colakoglu Metalurji A.S. and its complete description of the scope of to reflect the correction of the affiliates (collectively Colakoglu),6 and these orders, see Appendix I. ministerial error in POSCO’s final Petitioners 7 alleged that the Department Amendment to Australia Final margin calculation described above. made ministerial errors in the Turkey Determination Based on our correction, POSCO’s Final. See ‘‘Amendment to the Australia weighted-average dumping margin Final Determination,’’ ‘‘Amendment to As discussed above, the Department increased from 3.89 percent to 4.61 the Korea Final Determination,’’ and reviewed the record and agrees that the percent. Because the Korean ‘‘all- ‘‘Amendment to the Turkey Final two errors referenced in Petitioners’ others’’ rate is based in part on POSCO’s allegation constitute ministerial errors dumping margin, the correction noted 1 See Certain Hot-Rolled Steel Flat Products From within the meaning of section 735(e) of above also increases the all-others rate Australia: Final Determination of Sales at Less the Act and 19 CFR 351.224(f).9 determined in the Korea Final to 6.05 Than Fair Value, 81 FR 53406 (August 12, 2016) percent.15 (‘‘Australia Final’’); Certain Hot-Rolled Steel Flat Specifically, the Department neglected Products From Brazil: Final Determination of Sales to fully adjust BlueScope Steel Ltd.’s Amendment to Turkey Final at Less Than Fair Value and Final Affirmative normal value for processing revenue Determination Determination of Critical Circumstances, in Part, 81 and freight revenue.10 Pursuant to 19 FR 53426 (August 12, 2016) (‘‘Brazil Final’’); The Department reviewed the record CFR 351.224(e), the Department is Certain Hot-Rolled Steel Flat Products From Japan: and agrees that the error referenced in amending the Australia Final to reflect Final Determination of Sales at Less Than Fair Colakoglu’s allegation and the errors Value and Final Affirmative Determination of the correction of the ministerial errors referenced in Petitioners’ allegation Critical Circumstances, 81 FR 53409 (August 12, described above. Based on our 2016) (‘‘Japan Final’’); Certain Hot-Rolled Steel Flat constitute ministerial errors within the Products From the Republic of Korea: Final correction, BlueScope Steel Ltd.’s meaning of section 735(e) of the Act and Determination of Sales at Less Than Fair Value, 81 weighted-average dumping margin 19 CFR 351.224(f).16 Specifically, the FR 53419 (August 12, 2016) (‘‘Korea Final’’); increased from 29.37 percent to 29.58 Department utilized the incorrect Certain Hot-Rolled Steel Flat Products From the percent. Because the Australian ‘‘all- Netherlands: Final Determination of Sales at Less denominator in its calculation of Than Fair Value and Negative Final Determination others’’ rate is based solely on Colakoglu’s indirect selling expenses of Critical Circumstances, 81 FR 53421 (August 12, BlueScope Steel Ltd.’s dumping margin, ratio.17 Pursuant to 19 CFR 351.224(e), 2016) (‘‘Netherlands Final’’); Certain Hot-Rolled the corrections noted above also the Department is amending the Turkey Steel Flat Products From the Republic of Turkey: increase the all-others rate determined Final Determination of Sales at Less Than Fair Final to reflect the correction of the 11 Value, 81 FR 53428 (August 12, 2016) (‘‘Turkey in the Australia Final to 29.58 percent. ministerial error described above. Based Final’’); Certain Hot-Rolled Steel Flat Products From the United Kingdom: Final Determination of 8 See Letter to Christian Marsh, Deputy Assistant 12 See Memorandum to Christian Marsh, Deputy Sales at Less Than Fair Value, 81 FR 53436, Secretary of Commerce for Enforcement and Assistant Secretary for Antidumping and (August 12, 2016) (‘‘United Kingdom Final’’). Compliance, from Irving Williamson, Chairman of Countervailing Duty Operations regarding, 2 United States Steel Corporation (U.S. Steel) the U.S. International Trade Commission, regarding ‘‘Antidumping Duty Investigation of Certain Hot- submitted comments on behalf of petitioners, i.e., antidumping and countervailing duty investigations Rolled Steel Flat Products from Korea: Allegation of AK Steel Corporation, ArcelorMittal USA LLC, concerning imports of certain hot-rolled steel flat Ministerial Errors in the Final Determination,’’ Nucor Corporation, SSAB Enterprises, LLC, Steel products from Australia, Brazil, Japan, Korea, the (September 23, 2016). Dynamics, Inc., and United States Steel Corporation Netherlands, Turkey, and the United Kingdom 13 Id. (collectively ‘‘Petitioners’’). (Investigation Nos. 701–TA–545–547 and 731–TA– 14 Id. 3 See Letter to the Secretary of Commerce from 1291–1297 (September 26, 2016) (ITC Letter). 15 Id. U.S. Steel, dated August 15, 2016. 9 See Memorandum to Christian Marsh, Deputy 16 See Memorandum to Christian Marsh, Deputy 4 See section 735(e) of the Act and 19 CFR Assistant Secretary for Antidumping and Assistant Secretary for Antidumping and 351.224(f). Countervailing Duty Operations regarding, Countervailing Duty Operations regarding, 5 See Letter to the Secretary of Commerce from ‘‘Antidumping Duty Investigation of Certain Hot- ‘‘Antidumping Duty Investigation of Certain Hot- POSCO, dated August 15, 2016. Rolled Steel Flat Products from Australia: Rolled Steel Flat Products from the Republic of 6 See Letter to the Secretary of Commerce from Allegation of Ministerial Errors in the Final Turkey: Allegation of Ministerial Errors in the Final Colakoglu, dated August 11, 2016. Determination,’’ (September 16, 2016). Determination,’’ (September 27, 2016) (Turkey 7 See Letter to the Secretary of Commerce from 10 Id. Ministerial Error Memorandum). Petitioners, dated August 12, 2016. 11 Id. 17 Id.
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on our correction, Colakoglu’s weighted- injuring a U.S. industry, unliquidated CBP to continue to suspend liquidation average dumping margin decreased from entries of such merchandise from these on all relevant entries of hot-rolled steel 7.15 percent to 6.77 percent.18 In countries, entered or withdrawn from from Australia, Brazil, Japan, Korea, the reference to the ministerial errors warehouse for consumption, are subject Netherlands, Turkey, and the United alleged by Petitioners, the Department to the assessment of antidumping Kingdom. These instructions inadvertently omitted direct credit duties. suspending liquidation will remain in expenses from the calculation of Ereg˘li effect until further notice. Australia, Brazil, Japan, Korea, the Demir ve C¸elik Fabrikalari T.A.S¸. and its We will also instruct CBP to require Netherlands, Turkey, and the United Affiliates (collectively Erdemir) cash deposits equal to the amounts as Kingdom comparison market gross unit price indicated below. Accordingly, effective adjustment.19 The Department also In accordance with section 736(a)(1) on the date of publication of the ITC’s erred in inputting raw data into the of the Act, the Department will direct final affirmative injury determination, comparison market program to account U.S. Customs and Border Protection CBP will require, at the same time as for the control numbers that were sold (CBP) to assess, upon further instruction importers would normally deposit but not produced during the POI for by the Department, antidumping duties estimated duties on this subject Erdemir.20 Finally, the Department equal to the amount by which the merchandise, a cash deposit equal to the incorrectly applied the export subsidy normal value of the merchandise estimated weighted-average dumping adjustment to the U.S. net price for exceeds the export price (or constructed margins listed below.29 The ‘‘all others’’ Erdemir.21 Pursuant to 19 CFR export price) of the merchandise, for all rate applies to all producers or exporters 351.224(e), the Department is amending relevant entries of hot-rolled steel from not specifically listed, as appropriate. the Turkey Final to reflect the correction Australia, Brazil, Japan, Korea, the For the purpose of determining cash of the ministerial errors described Netherlands, Turkey, and the United deposit rates, the estimated weighted- above. However, because the ITC found Kingdom. Antidumping duties will be average dumping margins for imports of imports subsidized by the government assessed on unliquidated entries of hot- subject merchandise from Brazil and of Turkey to be negligible,22 thereby rolled steel products from Australia, Korea have been adjusted, as resulting in the termination of the Brazil, Japan, Korea, the Netherlands, appropriate, for export subsidies found companion countervailing duty Turkey, and the United Kingdom in the final determinations of the investigation of hot-rolled steel from entered, or withdrawn from warehouse, companion countervailing duty Turkey,23 we are further amending the for consumption on or after March 22, investigations of this merchandise Turkey Final to eliminate any 2016, the date of publication of the imported from Brazil and Korea.30 For adjustment to cash deposit rates for preliminary determination, 28 but will Turkey, as noted above, because of the export subsidies.24 Based on our not include entries occurring after the ITC’s finding of negligible subsidized corrections, Erdemir’s weighted-average expiration of the provisional measures imports, we have not made any dumping margin increased from 3.66 period and before publication of the adjustment to cash deposit rates for percent to 4.15 percent.25 Because the ITC’s final injury determination as export subsidies for imports of subject Turkish ‘‘all-others’’ rate is based on further described below. merchandise from Turkey.31 Colakoglu’s and Erdemir’s dumping Suspension of Liquidation Provisional Measures margins, the corrections noted above also increases the all-others rate In accordance with section Section 733(d) of the Act states that determined in the Turkey Final to 6.41 735(c)(1)(B) of the Act, we will instruct instructions issued pursuant to an percent.26 affirmative preliminary determination 28 See Certain Hot-Rolled Steel Flat Products from may not remain in effect for more than Antidumping Duty Orders Australia: Preliminary Determination of Sales at four months, except where exporters Less Than Fair Value and Postponement of Final In accordance with sections Determination, 81 FR 15241 (March 22, 2016) representing a significant proportion of 735(b)(1)(A)(i) and 735(d) of the Act, the (‘‘Australia Prelim’’); Certain Hot-Rolled Steel Flat exports of the subject merchandise ITC has notified the Department of its Products From Brazil: Affirmative Preliminary request the Department to extend that Determination of Sales at Less Than Fair Value, four-month period to no more than six final determinations that an industry in Postponement of Final Determination and the United States is materially injured Extension of Provisional Measures, 81 FR 15235 months. At the request of exporters that by reason of the LTFV imports of certain (March 22, 2016) (Brazil Prelim); Certain Hot-Rolled account for a significant proportion of hot-rolled steel from Australia, Brazil, Steel Flat Products from Japan: Preliminary hot-rolled steel from Australia, Brazil, Determination of Sales at Less Than Fair Value and Japan, Korea, the Netherlands, Turkey, Japan, Korea, the Netherlands, Turkey, Postponement of Final Determination, 81 FR 15222 27 and the United Kingdom. Therefore, (March 22, 2016) (Japan Prelim); Certain Hot-Rolled and the United Kingdom, the in accordance with section 735(c)(2) of Steel Flat Products from the Republic of Korea: Department extended the four-month the Act, we are publishing these Affirmative Preliminary Determination of Sales at period to six months in each case.32 In Less than Fair Value and Postponement of Final the underlying investigations, the antidumping duty orders. Because the Determination, 81 FR 15228 (March 22, 2016) ITC determined that imports of hot- (Korea Prelim); Certain Hot-Rolled Steel Flat Department published the preliminary rolled steel from Australia, Brazil, Products from the Netherlands: Affirmative determinations on March 22, 2016. Japan, Korea, the Netherlands, Turkey, Preliminary Determination of Sales at Less Than Therefore, the extended period, Fair Value, Postponement of Final Determination beginning on the date of publication of and the United Kingdom are materially and Extension of Provisional Measures, 81 FR 15225 (March 22, 2016) (Netherlands Prelim); the preliminary determination, ended 18 Id. Certain Hot-Rolled Steel Flat Products From the on September 17, 2016. Furthermore, 19 Id. Republic of Turkey: Affirmative Preliminary section 737(b) of the Act states that 20 Id. Determination of Sales at Less Than Fair Value and 21 Postponement of Final Determination, 81 FR 15231 Id. 29 See section 736(a)(3) of the Act. 22 See ITC Letter. (March 22, 2016) (Turkey Prelim); and Certain Hot- Rolled Steel Flat Products From the United 30 See Brazil Final and Korea Final. 23 See section 735(c)(2) of the Act. Kingdom: Affirmative Preliminary Determination of 31 See ITC Letter; see also Turkey Ministerial 24 See Turkey Ministerial Error Memorandum. Sales at Less Than Fair Value, Postponement of Error Memorandum. 25 Id. Final Determination and Extension of Provisional 32 See Australia Prelim, Brazil Prelim, Japan 26 Id. Measures, 81 FR 15244 (March 22, 2016) (United Prelim, Korea Prelim, Netherlands Prelim, Turkey 27 See ITC Letter. Kingdom Prelim). Prelim, and United Kingdom Prelim.
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definitive duties are to begin on the date the day preceding the date of estimated antidumping duties with of publication of the ITC’s final injury publication of the ITC’s final injury respect to entries of hot-rolled steel from determination. determination in the Federal Register. Brazil and Japan entered, or withdrawn Therefore, in accordance with section Suspension of liquidation will resume from warehouse, for consumption on or 733(d) of the Act and our practice,33 we on the date of publication of the ITC’s after December 23, 2015 (i.e., 90 days will instruct CBP to terminate the final determination in the Federal prior to the date of publication of the suspension of liquidation and to Register. preliminary determinations), but before liquidate, without regard to March 22, 2016 (i.e., the date of Critical Circumstances antidumping duties, unliquidated publication of the preliminary entries of hot-rolled steel from With regard to the ITC’s negative determinations). Australia, Brazil, Japan, Korea, the critical circumstances determination on Estimated Weighted-Average Dumping Netherlands, Turkey, and the United imports of hot-rolled steel from Brazil Margins Kingdom entered, or withdrawn from and Japan, we will instruct CBP to lift warehouse, for consumption after suspension and to refund any cash The weighted-average antidumping September 17, 2016, until and through deposits made to secure the payment of duty margin percentages are as follows:
Weighted- average Cash-deposit Exporter/producer margin rate (%) (%)
Australia
BlueScope Steel Ltd...... 29.58 ...... All Others ...... 29.58 ......
Brazil 34
Companhia Siderurgica Nacional ...... 33.14 29.07 Usinas Siderurgicas de Minas Gerais ...... 34.28 30.51 All Others ...... 33.14 29.07
Japan
JFE Steel Corporation ...... 7.51 ...... Nippon Steel & Sumitomo Metal Corporation ...... 4.99 ...... All Others ...... 5.58 ......
Korea 35
Hyundai Steel Company ...... 9.49 9.49 POSCO ...... 4.61 0.00 All Others ...... 6.05 6.05
Netherlands
Tata Steel Ijmuiden B.V ...... 3.73 ...... All Others ...... 3.73 ......
Turkey
Colakoglu Metalurji A.S./Colakoglu Dis Ticaret A.S ...... 6.77 ...... Eregùli Demir ve C¸ elik Fabrikalar( T.A.S¸ /Iskenderun Demir ve C¸ elik T.A.S¸ ...... 4.15 ...... All Others ...... 6.41 ......
United Kingdom
Tata Steel U.K. Ltd ...... 33.06 ...... All Others ...... 33.06 ......
33 See, e.g., Certain Corrosion-Resistant Steel Amended Final Affirmative Antidumping Antidumping Duty Orders, 81 FR 48390 (July 25, Products From India, Italy, the People’s Republic of Determination for India and Taiwan, and 2016). China, the Republic of Korea and Taiwan:
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This notice constitutes the Republic of Korea (A–580–836; C–580–837), rolled on four faces or in a closed box pass, antidumping duty orders with respect to and of a width exceeding 150 mm but not hot-rolled steel from Australia, Brazil, (2) where the width and thickness vary for exceeding 1250 mm, of a thickness not less a specific product (e.g., the thickness of than 4.0 mm, and without patterns in Japan, Korea, the Netherlands, Turkey, certain products with non-rectangular cross- relief); and the United Kingdom pursuant to section, the width of certain products with • Products that have been cold-rolled (cold- section 736(a) of the Act. Interested non-rectangular shape, etc.), the reduced) after hot-rolling; 38 parties can find a list of antidumping measurement at its greatest width or • Ball bearing steels; 39 duty orders currently in effect at http:// thickness applies. • Tool steels; 40 and enforcement.trade.gov/stats/ Steel products included in the scope of • Silico-manganese steels; 41 iastats1.html. these orders are products in which: (1) Iron The products covered by these orders are These orders are published in predominates, by weight, over each of the currently classified in the Harmonized Tariff accordance with section 736(a) of the other contained elements; (2) the carbon Schedule of the United States (HTSUS) under content is 2 percent or less, by weight; and Act and 19 CFR 351.211(b). item numbers: 7208.10.1500, 7208.10.3000, (3) none of the elements listed below exceeds 7208.10.6000, 7208.25.3000, 7208.25.6000, Dated: September 27, 2016. the quantity, by weight, respectively 7208.26.0030, 7208.26.0060, 7208.27.0030, Paul Piquado, indicated: 7208.27.0060, 7208.36.0030, 7208.36.0060, Assistant Secretary for Enforcement and • 2.50 percent of manganese, or 7208.37.0030, 7208.37.0060, 7208.38.0015, Compliance. • 3.30 percent of silicon, or 7208.38.0030, 7208.38.0090, 7208.39.0015, • 1.50 percent of copper, or 7208.39.0030, 7208.39.0090, 7208.40.6030, Appendix I • 1.50 percent of aluminum, or 7208.40.6060, 7208.53.0000, 7208.54.0000, • 7208.90.0000, 7210.70.3000, 7211.14.0030, Scope of the Orders 1.25 percent of chromium, or • 0.30 percent of cobalt, or 7211.14.0090, 7211.19.1500, 7211.19.2000, The products covered by these orders are • 0.40 percent of lead, or 7211.19.3000, 7211.19.4500, 7211.19.6000, certain hot-rolled, flat-rolled steel products, • 2.00 percent of nickel, or 7211.19.7530, 7211.19.7560, 7211.19.7590, with or without patterns in relief, and • 0.30 percent of tungsten, or 7225.11.0000, 7225.19.0000, 7225.30.3050, whether or not annealed, painted, varnished, • 0.80 percent of molybdenum, or 7225.30.7000, 7225.40.7000, 7225.99.0090, or coated with plastics or other non-metallic • 0.10 percent of niobium, or 7226.11.1000, 7226.11.9030, 7226.11.9060, substances. The products covered do not • 0.30 percent of vanadium, or 7226.19.1000, 7226.19.9000, 7226.91.5000, include those that are clad, plated, or coated • 0.30 percent of zirconium. 7226.91.7000, and 7226.91.8000. The with metal. The products covered include Unless specifically excluded, products are products covered by these orders may also coils that have a width or other lateral included in these scopes regardless of levels enter under the following HTSUS numbers: measurement (‘‘width’’) of 12.7 mm or 7210.90.9000, 7211.90.0000, 7212.40.1000, greater, regardless of thickness, and of boron and titanium. For example, specifically included in these 7212.40.5000, 7212.50.0000, 7214.91.0015, regardless of form of coil (e.g., in 7214.91.0060, 7214.91.0090, 7214.99.0060, successively superimposed layers, spirally scopes are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) 7214.99.0075, 7214.99.0090, 7215.90.5000, oscillating, etc.). The products covered also 7226.99.0180, and 7228.60.6000. include products not in coils (e.g., in straight steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, The HTSUS subheadings above are lengths) of a thickness of less than 4.75 mm provided for convenience and U.S. Customs and a width that is 12.7 mm or greater and Advanced High Strength Steels (AHSS), and that measures at least 10 times the thickness. Ultra High Strength Steels (UHSS). IF steels 38 For purposes of this scope exclusion, rolling The products described above may be are recognized as low carbon steels with micro-alloying levels of elements such as operations such as a skin pass, levelling, temper rectangular, square, circular, or other shape rolling or other minor rolling operations after the and include products of either rectangular or titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels hot-rolling process for purposes of surface finish, non-rectangular cross-section where such flatness, shape control, or gauge control do not cross-section is achieve subsequent to the are recognized as steels with micro-alloying constitute cold-rolling sufficient to meet this rolling process, i.e., products which have levels of elements such as chromium, copper, exclusion. been ‘‘worked after rolling’’ (e.g., products niobium, titanium, vanadium, and 39 Ball bearing steels are defined as steels which which have been beveled or rounded at the molybdenum. The substrate for motor contain, in addition to iron, each of the following edges). For purposes of the width and lamination steels contains micro-alloying elements by weight in the amount specified: (i) Not thickness requirements referenced above: levels of elements such as silicon and less than 0.95 nor more than 1.13 percent of carbon; (1) Where the nominal and actual aluminum. AHSS and UHSS are considered (ii) not less than 0.22 nor more than 0.48 percent high tensile strength and high elongation of manganese; (iii) none, or not more than 0.03 measurements vary, a product is within the percent of sulfur; (iv) none, or not more than 0.03 scope if application of either the nominal or steels, although AHSS and UHSS are covered whether or not they are high tensile strength percent of phosphorus; (v) not less than 0.18 nor actual measurement would place it within more than 0.37 percent of silicon; (vi) not less than the scope based on the definitions set forth or high elongation steels. 1.25 nor more than 1.65 percent of chromium; (vii) above unless the resulting measurement Subject merchandise includes hot-rolled none, or not more than 0.28 percent of nickel; (viii) makes the product covered by the existing steel that has been further processed in a none, or not more than 0.38 percent of copper; and antidumping 36 or countervailing duty 37 third country, including but not limited to (ix) none, or not more than 0.09 percent of orders on Certain Cut-To-Length Carbon- pickling, oiling, levelling, annealing, molybdenum. Quality Steel Plate Products From the tempering, temper rolling, skin passing, 40 Tool steels are defined as steels which contain painting, varnishing, trimming, cutting, the following combinations of elements in the punching, and/or slitting, or any other quantity by weight respectively indicated: (i) More 34 The cash deposit rates are adjusted to account than 1.2 percent carbon and more than 10.5 percent for the applicable export subsidy rates. processing that would not otherwise remove the merchandise from the scope of these chromium; or (ii) not less than 0.3 percent carbon 35 Id. and 1.25 percent or more but less than 10.5 percent 36 Notice of Amendment of Final Determinations orders if performed in the country of chromium; or (iii) not less than 0.85 percent carbon of Sales at Less Than Fair Value and Antidumping manufacture of the hot-rolled steel. and 1 percent to 1.8 percent, inclusive, manganese; Duty Orders: Certain Cut-To-Length Carbon-Quality All products that meet the written physical or (iv) 0.9 percent to 1.2 percent, inclusive, Steel Plate Products From France, India, Indonesia, description, and in which the chemistry chromium and 0.9 percent to 1.4 percent, inclusive, Italy, Japan and the Republic of Korea, 65 FR 6585 quantities do not exceed any one of the noted molybdenum; or (v) not less than 0.5 percent carbon (February 10, 2000). element levels listed above, are within the and not less than 3.5 percent molybdenum; or (vi) 37 Notice of Amended Final Determinations: scope of these orders unless specifically not less than 0.5 percent carbon and not less than Certain Cut-to-Length Carbon-Quality Steel Plate excluded. The following products are outside 5.5 percent tungsten. 41 From India and the Republic of Korea; and Notice of and/or specifically excluded from the Silico-manganese steel is defined as steels of Countervailing Duty Orders: Certain Cut-To- scope of these orders: containing by weight: (i) Not more than 0.7 percent Length Carbon-Quality Steel Plate From France, of carbon; (ii) 0.5 percent or more but not more than India, Indonesia, Italy, and the Republic of Korea, • Universal mill plates (i.e., hot-rolled, flat- 1.9 percent of manganese, and (iii) 0.6 percent or 65 FR 6587 (February 10, 2000). rolled products not in coils that have been more but not more than 2.3 percent of silicon.
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purposes only. The written description of the (‘‘the Commission’’) is publishing Year (‘‘Sunset’’) Reviews of scope of these orders is dispositive. concurrently with this notice its notice Antidumping and Countervailing Duty [FR Doc. 2016–23836 Filed 9–30–16; 8:45 a.m.] of Institution of Five-Year Review which Orders, 63 FR 13516 (March 20, 1998) BILLING CODE 3510–DS–P covers the same order(s). and 70 FR 62061 (October 28, 2005). DATES: Effective on October 1, 2016. Guidance on methodological or FOR FURTHER INFORMATION CONTACT: The analytical issues relevant to the DEPARTMENT OF COMMERCE Department official identified in the Department’s conduct of Sunset International Trade Administration Initiation of Review section below at Reviews is set forth in Antidumping AD/CVD Operations, Enforcement and Proceedings: Calculation of the Initiation of Five-Year (‘‘Sunset’’) Compliance, International Trade Weighted-Average Dumping Margin and Review Administration, U.S. Department of Assessment Rate in Certain Commerce, 14th Street and Constitution Antidumping Duty Proceedings; Final AGENCY: Enforcement and Compliance, Avenue NW., Washington, DC 20230. International Trade Administration, Modification, 77 FR 8101 (February 14, For information from the Commission 2012). Department of Commerce. contact Mary Messer, Office of SUMMARY: In accordance with the Tariff Investigations, U.S. International Trade Initiation of Review Act of 1930, as amended (‘‘the Act’’), the Commission at (202) 205–3193. Department of Commerce (‘‘the SUPPLEMENTARY INFORMATION: In accordance with 19 CFR Department’’) is automatically initiating 351.218(c), we are initiating Sunset the five-year review (‘‘Sunset Review’’) Background Reviews of the following antidumping of the antidumping and countervailing The Department’s procedures for the and countervailing duty order(s): duty (‘‘AD/CVD’’) order(s) listed below. conduct of Sunset Reviews are set forth The International Trade Commission in its Procedures for Conducting Five-
DOC case No. ITC case No. Country Product Department contact
AÐ570Ð899 ...... 731ÐTAÐ1091 PRC Artist Canvas (2nd Review) ...... David Goldberger, (202) 482Ð4136. AÐ570Ð832 ...... 731ÐTAÐ696 PRC Pure Magnesium (4th Review) ...... David Goldberger, (202) 482Ð4136.
Filing Information representatives in these segments.3 The submitting factual information in these formats for the revised certifications are segments.5 As a courtesy, we are making provided at the end of the Final Rule. information related to sunset Letters of Appearance and The Department intends to reject factual Administrative Protective Orders proceedings, including copies of the submissions if the submitting party does pertinent statute and Department’s not comply with the revised Pursuant to 19 CFR 351.103(d), the regulations, the Department’s schedule certification requirements. Department will maintain and make for Sunset Reviews, a listing of past available a public service list for these revocations and continuations, and On April 10, 2013, the Department proceedings. Parties wishing to current service lists, available to the modified two regulations related to AD/ participate in any of these five-year public on the Department’s Web site at CVD proceedings: the definition of reviews must file letters of appearance the following address: ‘‘http:// factual information (19 CFR as discussed at 19 CFR 351.103(d)). To enforcement.trade.gov/sunset/.’’ All 351.102(b)(21)), and the time limits for facilitate the timely preparation of the submissions in these Sunset Reviews the submission of factual information public service list, it is requested that 4 must be filed in accordance with the (19 CFR 351.301). Parties are advised to those seeking recognition as interested Department’s regulations regarding review the final rule, available at http:// parties to a proceeding submit an entry format, translation, and service of enforcement.trade.gov/frn/2013/ of appearance within 10 days of the documents. These rules, including 1304frn/2013-08227.txt, prior to publication of the Notice of Initiation. Because deadlines in Sunset Reviews electronic filing requirements via submitting factual information in these can be very short, we urge interested Enforcement and Compliance’s segments. To the extent that other regulations govern the submission of parties who want access to proprietary Antidumping and Countervailing Duty information under administrative Centralized Electronic Service System factual information in a segment (such as 19 CFR 351.218), these time limits protective order (‘‘APO’’) to file an APO (‘‘ACCESS’’), can be found at 19 CFR application immediately following 351.303.1 will continue to be applied. Parties are also advised to review the final rule publication in the Federal Register of This notice serves as a reminder that this notice of initiation. The concerning the extension of time limits any party submitting factual information Department’s regulations on submission for submissions in AD/CVD in an AD/CVD proceeding must certify of proprietary information and proceedings, available at http:// to the accuracy and completeness of that eligibility to receive access to business enforcement.trade.gov/frn/2013/ information.2 Parties are hereby proprietary information under APO can 1309frn/2013-22853.txt, prior to reminded that revised certification be found at 19 CFR 351.304–306. requirements are in effect for company/ 3 See Certification of Factual Information To Information Required From Interested government officials as well as their Import Administration During Antidumping and Parties Countervailing Duty Proceedings, 78 FR 42678 (July Domestic interested parties, as 1 See also Antidumping and Countervailing Duty 17, 2013) (‘‘Final Rule’’) (amending 19 CFR Proceedings: Electronic Filing Procedures; 351.303(g)). defined in section 771(9)(C), (D), (E), (F), Administrative Protective Order Procedures, 76 FR 4 See Definition of Factual Information and Time 39263 (July 6, 2011). Limits for Submission of Factual Information: Final 5 See Extension of Time Limits, 78 FR 57790 2 See section 782(b) of the Act. Rule, 78 FR 21246 (April 10, 2013). (September 20, 2013).
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and (G) of the Act and 19 CFR Operations, Customs Liaison Unit, substantial amount of detailed 351.102(b), wishing to participate in a Enforcement and Compliance, information and analysis, which often Sunset Review must respond not later International Trade Administration, require follow-up questions and than 15 days after the date of U.S. Department of Commerce, 14th analysis. Accordingly, the Department publication in the Federal Register of Street and Constitution Avenue NW., will not conduct collapsing analyses at this notice of initiation by filing a notice Washington, DC 20230, telephone: (202) the respondent selection phase of this of intent to participate. The required 482–4735. review and will not collapse companies contents of the notice of intent to SUPPLEMENTARY INFORMATION: at the respondent selection phase unless participate are set forth at 19 CFR there has been a determination to 351.218(d)(1)(ii). In accordance with the Background collapse certain companies in a Department’s regulations, if we do not Each year during the anniversary previous segment of this antidumping receive a notice of intent to participate month of the publication of an proceeding (i.e., investigation, from at least one domestic interested antidumping or countervailing duty administrative review, new shipper party by the 15-day deadline, the order, finding, or suspended review or changed circumstances Department will automatically revoke investigation, an interested party, as review). For any company subject to this the order without further review.6 defined in section 771(9) of the Tariff review, if the Department determined, If we receive an order-specific notice Act of 1930, as amended (‘‘the Act’’), or continued to treat, that company as of intent to participate from a domestic may request, in accordance with 19 CFR collapsed with others, the Department interested party, the Department’s 351.213, that the Department of will assume that such companies regulations provide that all parties Commerce (‘‘the Department’’) conduct continue to operate in the same manner wishing to participate in a Sunset an administrative review of that and will collapse them for respondent Review must file complete substantive antidumping or countervailing duty selection purposes. Otherwise, the responses not later than 30 days after order, finding, or suspended Department will not collapse companies the date of publication in the Federal investigation. for purposes of respondent selection. Register of this notice of initiation. The All deadlines for the submission of Parties are requested to (a) identify required contents of a substantive comments or actions by the Department which companies subject to review response, on an order-specific basis, are discussed below refer to the number of previously were collapsed, and (b) set forth at 19 CFR 351.218(d)(3). Note calendar days from the applicable provide a citation to the proceeding in that certain information requirements starting date. which they were collapsed. Further, if differ for respondent and domestic Respondent Selection companies are requested to complete parties. Also, note that the Department’s the Quantity and Value Questionnaire information requirements are distinct In the event the Department limits the for purposes of respondent selection, in from the Commission’s information number of respondents for individual general each company must report requirements. Consult the Department’s examination for administrative reviews volume and value data separately for regulations for information regarding initiated pursuant to requests made for itself. Parties should not include data the Department’s conduct of Sunset the orders identified below, the for any other party, even if they believe Reviews. Consult the Department’s Department intends to select they should be treated as a single entity regulations at 19 CFR part 351 for respondents based on U.S. Customs and with that other party. If a company was definitions of terms and for other Border Protection (‘‘CBP’’) data for U.S. collapsed with another company or general information concerning imports during the period of review. We companies in the most recently antidumping and countervailing duty intend to release the CBP data under completed segment of this proceeding proceedings at the Department. Administrative Protective Order where the Department considered This notice of initiation is being (‘‘APO’’) to all parties having an APO collapsing that entity, complete quantity published in accordance with section within five days of publication of the and value data for that collapsed entity 751(c) of the Act and 19 CFR 351.218(c). initiation notice and to make our must be submitted. decision regarding respondent selection Dated: September 22, 2016. within 21 days of publication of the Deadline for Withdrawal of Request for Christian Marsh, initiation Federal Register notice. Administrative Review Deputy Assistant Secretary for Antidumping Therefore, we encourage all parties Pursuant to 19 CFR 351.213(d)(1), a and Countervailing Duty Operations. interested in commenting on respondent party that requests a review may [FR Doc. 2016–23828 Filed 9–30–16; 8:45 am] selection to submit their APO withdraw that request within 90 days of BILLING CODE 3510–DS–P applications on the date of publication the date of publication of the notice of of the initiation notice, or as soon initiation of the requested review. The thereafter as possible. The Department regulation provides that the Department DEPARTMENT OF COMMERCE invites comments regarding the CBP may extend this time if it is reasonable to do so. In order to provide parties International Trade Administration data and respondent selection within five days of placement of the CBP data additional certainty with respect to Antidumping or Countervailing Duty on the record of the review. when the Department will exercise its Order, Finding, or Suspended In the event the Department decides discretion to extend this 90-day Investigation; Opportunity To Request it is necessary to limit individual deadline, interested parties are advised Administrative Review examination of respondents and that, with regard to reviews requested conduct respondent selection under on the basis of anniversary months on AGENCY: Enforcement and Compliance, section 777A(c)(2) of the Act: or after October 2016, the Department International Trade Administration, In general, the Department finds that does not intend to extend the 90-day Department of Commerce. determinations concerning whether deadline unless the requestor FOR FURTHER INFORMATION CONTACT: particular companies should be demonstrates that an extraordinary Brenda E. Waters, Office of AD/CVD ‘‘collapsed’’ (i.e., treated as a single circumstance prevented it from entity for purposes of calculating submitting a timely withdrawal request. 6 See 19 CFR 351.218(d)(1)(iii). antidumping duty rates) require a Determinations by the Department to
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extend the 90-day deadline will be parties will be aware of the manner in administrative review of the following made on a case-by-case basis. which the Department intends to orders, findings, or suspended The Department is providing this exercise its discretion in the future. investigations, with anniversary dates in notice on its Web site, as well as in its Opportunity To Request a Review: Not October for the following periods: ‘‘Opportunity to Request Administrative later than the last day of October 2016,1 Review’’ notices, so that interested interested parties may request
Period of review
Antidumping Duty Proceedings Period of Review Brazil: Carbon and Certain Alloy Steel Wire Rod, AÐ351Ð832 ...... 10/1/15Ð9/30/16 Indonesia: Carbon and Certain Alloy Steel Wire Rod, AÐ560Ð815 ...... 10/1/15Ð9/30/16 Italy: Pressure Sensitive Plastic Tape, AÐ475Ð059 ...... 10/1/15Ð9/30/16 Mexico: Carbon and Certain Alloy Steel Wire Rod, AÐ201Ð830 ...... 10/1/15Ð9/30/16 Moldova: Carbon and Certain Alloy Steel Wire Rod, AÐ841Ð805 ...... 10/1/15Ð9/30/16 The People’s Republic of China: Barium Carbonate, A–570–880 ...... 10/1/15Ð9/30/16 The People’s Republic of China: Barium Chloride, A–570–007 ...... 10/1/15Ð9/30/16 The People’s Republic of China: Boltless Steel Shelving Units Prepackaged for Sale, A–570–018 ...... 4/1/15Ð9/30/16 The People’s Republic of China: Electrolytic Manganese Dioxide, A–570- 919 ...... 10/1/15Ð9/30/16 The People’s Republic of China: Helical Spring Lock Washers, A–570–822 ...... 10/1/15Ð9/30/16 The People’s Republic of China: Polyvinyl Alcohol, A–570–879 ...... 10/1/15Ð9/30/16 The People’s Republic of China: Steel Wire Garment Hangers, A–570–918 ...... 10/1/15Ð9/30/16 Trindad And Tobago: Carbon and Certain Alloy Steel Wire Rod, AÐ274Ð804 ...... 10/1/15Ð9/30/16 Countervailing Duty Proceedings Brazil: Carbon and Certain Alloy Steel Wire Rod, CÐ351Ð833 ...... 1/1/15Ð12/31/15 Iran: Roasted In Shell Pistachios, CÐ507Ð601 ...... 1/1/15Ð12/31/15 The People’s Republic of China: Boltless Steel Shelving Units Prepackaged for Sale, C–570–019 ...... 1/30/15Ð12/31/15 Suspension Agreements Russia: Uranium, AÐ821Ð802 ...... 10/1/15Ð9/30/16
In accordance with 19 CFR review of that party absent new in Department Practice for Respondent 351.213(b), an interested party as information as to the party’s location. Selection in Antidumping Duty defined by section 771(9) of the Act may Moreover, if the interested party who Proceedings and Conditional Review of request in writing that the Secretary files a request for review is unable to the Nonmarket Economy Entity in NME conduct an administrative review. For locate the producer or exporter for Antidumping Duty Proceedings, 78 FR both antidumping and countervailing which it requested the review, the 65963 (November 4, 2013), the duty reviews, the interested party must interested party must provide an Department clarified its practice with specify the individual producers or explanation of the attempts it made to regard to the conditional review of the exporters covered by an antidumping locate the producer or exporter at the non-market economy (NME) entity in finding or an antidumping or same time it files its request for review, administrative reviews of antidumping countervailing duty order or suspension in order for the Secretary to determine duty orders. The Department will no agreement for which it is requesting a if the interested party’s attempts were longer consider the NME entity as an review. In addition, a domestic reasonable, pursuant to 19 CFR exporter conditionally subject to interested party or an interested party 351.303(f)(3)(ii). administrative reviews. Accordingly, described in section 771(9)(B) of the Act As explained in Antidumping and the NME entity will not be under review must state why it desires the Secretary Countervailing Duty Proceedings: unless the Department specifically to review those particular producers or Assessment of Antidumping Duties, 68 receives a request for, or self-initiates, a exporters. If the interested party intends FR 23954 (May 6, 2003), and Non- review of the NME entity.3 In for the Secretary to review sales of Market Economy Antidumping administrative reviews of antidumping merchandise by an exporter (or a Proceedings: Assessment of duty orders on merchandise from NME producer if that producer also exports Antidumping Duties, 76 FR 65694 countries where a review of the NME merchandise from other suppliers) (October 24, 2011) the Department entity has not been initiated, but where which was produced in more than one clarified its practice with respect to the an individual exporter for which a country of origin and each country of collection of final antidumping duties review was initiated does not qualify for origin is subject to a separate order, then on imports of merchandise where a separate rate, the Department will the interested party must state intermediate firms are involved. The issue a final decision indicating that the specifically, on an order-by-order basis, public should be aware of this company in question is part of the NME which exporter(s) the request is clarification in determining whether to entity. However, in that situation, intended to cover. request an administrative review of because no review of the NME entity Note that, for any party the merchandise subject to antidumping was conducted, the NME entity’s entries Department was unable to locate in findings and orders.2 were not subject to the review and the prior segments, the Department will not Further, as explained in Antidumping rate for the NME entity is not subject to accept a request for an administrative Proceedings: Announcement of Change change as a result of that review
1 Or the next business day, if the deadline falls 2 See also the Enforcement and Compliance Web entries from exporters comprising the entity, and to on a weekend, federal holiday or any other day site at http://trade.gov/enforcement/. the extent possible, include the names of such when the Department is closed. 3 In accordance with 19 CFR 351.213(b)(1), parties exporters in their request. should specify that they are requesting a review of
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(although the rate for the individual DEPARTMENT OF COMMERCE Special Accommodations exporter may change as a function of the This meeting is physically accessible National Oceanic and Atmospheric finding that the exporter is part of the to people with disabilities. Requests for Administration NME entity). sign language interpretation or other Following initiation of an RIN 0648–XE917 auxiliary aids should be directed to antidumping administrative review Thomas A. Nies, Executive Director, at when there is no review requested of the New England Fishery Management (978) 465–0492, at least 5 days prior to NME entity, the Department will Council; Public Meeting the meeting date. instruct CBP to liquidate entries for all exporters not named in the initiation AGENCY: National Marine Fisheries Authority: 16 U.S.C. 1801 et seq. notice, including those that were Service (NMFS), National Oceanic and Dated: September 28, 2016. suspended at the NME entity rate. Atmospheric Administration (NOAA), Tracey L. Thompson, Commerce. All requests must be filed Acting Deputy Director, Office of Sustainable electronically in Enforcement and ACTION: Notice; public meeting. Fisheries, National Marine Fisheries Service. Compliance’s Antidumping and [FR Doc. 2016–23799 Filed 9–30–16; 8:45 am] Countervailing Duty Centralized SUMMARY: The New England Fishery Electronic Service System (‘‘ACCESS’’) Management Council (Council) is BILLING CODE 3510–22–P on Enforcement and Compliance’s scheduling a joint public meeting of its ACCESS Web site at http:// Monkfish Committee to consider actions DEPARTMENT OF COMMERCE access.trade.gov.4 Further, in affecting New England fisheries in the accordance with 19 CFR 351.303(f)(l)(i), exclusive economic zone (EEZ). National Oceanic and Atmospheric a copy of each request must be served Recommendations from this group will Administration on the petitioner and each exporter or be brought to the full Council for formal producer specified in the request. consideration and action, if appropriate. RIN 0648–XE919 The Department will publish in the DATES: This meeting will be held on New England Fishery Management Federal Register a notice of ‘‘Initiation Tuesday, October 18, 2016 at 9:30 a.m. of Administrative Review of Council; Public Meeting ADDRESSES: The meeting will be held at Antidumping or Countervailing Duty the Hilton Garden Inn, One Thurber AGENCY: National Marine Fisheries Order, Finding, or Suspended Street, Warwick, RI 02886; telephone: Service (NMFS), National Oceanic and Investigation’’ for requests received by (401) 734–9600. Atmospheric Administration (NOAA), the last day of October 2016. If the Council address: New England Commerce. Department does not receive, by the last Fishery Management Council, 50 Water ACTION: Notice; public meeting. day of October 2016, a request for Street, Mill 2, Newburyport, MA 01950. review of entries covered by an order, SUMMARY: The New England Fishery FOR FURTHER INFORMATION CONTACT: finding, or suspended investigation Management Council (Council) is listed in this notice and for the period Thomas A. Nies, Executive Director, scheduling a public meeting of its Skate identified above, the Department will New England Fishery Management Committee to consider actions affecting instruct CBP to assess antidumping or Council; telephone: (978) 465–0492. New England fisheries in the exclusive countervailing duties on those entries at SUPPLEMENTARY INFORMATION: economic zone (EEZ). a rate equal to the cash deposit of (or Agenda Recommendations from this group will bond for) estimated antidumping or be brought to the full Council for formal countervailing duties required on those The Monkfish Committee will receive consideration and action, if appropriate. an update on Plan Development Team entries at the time of entry, or DATES: This meeting will be held on (PDT) analysis on Days-at-sea (DAS) withdrawal from warehouse, for Wednesday, October 19, 2016 at 9:30 allocation and trip limits. The will also consumption and to continue to collect a.m. the cash deposit previously ordered. receive an overview from the Monkfish For the first administrative review of PDT on draft alternatives and impacts ADDRESSES: The meeting will be held at any order, there will be no assessment for Framework 10 regarding the Hilton Garden Hotel, One Thurber of antidumping or countervailing duties specifications for FY 2017–19 and DAS Street, Warwick, RI 02886; telephone: on entries of subject merchandise allocation and/or possession limit (401) 734–9600. entered, or withdrawn from warehouse, alternatives. The Committee will select Council address: New England for consumption during the relevant preferred alternatives for Framework 10 Fishery Management Council, 50 Water provisional-measures ‘‘gap’’ period of as well as review and discuss 5 year Street, Mill 2, Newburyport, MA 01950. the order, if such a gap period is research priorities for monkfish. The FOR FURTHER INFORMATION CONTACT: applicable to the period of review. will discuss other business, as Thomas A. Nies, Executive Director, This notice is not required by statute necessary. New England Fishery Management but is published as a service to the Although non-emergency issues not Council; telephone: (978) 465–0492. international trading community. contained in this agenda may come SUPPLEMENTARY INFORMATION: Dated: September 22, 2016. before this group for discussion, those issues may not be the subject of formal Agenda Christian Marsh, action during this meeting. Action will The Committee will review and Deputy Assistant Secretary for Antidumping be restricted to those issues specifically discuss the draft scoping document for and Countervailing Duty Operations. listed in this notice and any issues the upcoming limited access [FR Doc. 2016–23829 Filed 9–30–16; 8:45 am] arising after publication of this notice amendment to the Northeast Skate BILLING CODE 3510–DS–P that require emergency action under Complex Fishery Management Plan. section 305(c) of the Magnuson-Stevens They will also develop 4 See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Act, provided the public has been recommendations for 2017 Council Administrative Protective Order Procedures, 76 FR notified of the Council’s intent to take priorities as well as review and discuss 39263 (July 6, 2011). final action to address the emergency. 5 year research priorities for skates.
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Other business will be discussed. The Background completion of the application, the Committee will also have a closed Sections 101(a)(5)(A) and (D) of the planned LRS WSEP training activities session to review Advisory Panel MMPA (16 U.S.C. 1361 et seq.) direct were pushed back to October 2016. applications for 2018–20 and make the Secretary of Commerce to allow, 86 FWS proposes actions that include recommendations for approval to the upon request, the incidental, but not LRS WSEP test missions of the Joint Air- Council’s Executive committee. intentional, taking of small numbers of To-Surface Stand-off Missile (JASSM) and the Small Diameter Bomb-I/II (SDB– Special Accommodations marine mammals of a species or population stock, by U.S. citizens who I/II) including detonations at the water This meeting is physically accessible engage in a specified activity (other than surface. These activities qualify as to people with disabilities. Requests for commercial fishing) within a specified military readiness activities under the sign language interpretation or other geographical region if certain findings MMPA. auxiliary aids should be directed to The following aspects of the planned are made and either regulations are Thomas A. Nies, Executive Director, at LRS WSEP training activities have the issued or, if the taking is limited to (978) 465–0492, at least 5 days prior to potential to take marine mammals: harassment, a notice of a proposed the meeting date. Munition strikes and detonation effects authorization is provided to the public (overpressure and acoustic Authority: 16 U.S.C. 1801 et seq. for review. components). Take, by Level B An authorization for incidental Dated: September 28, 2016. harassment of individuals of dwarf takings for marine mammals shall be Tracey L. Thompson, sperm whale, pygmy sperm whale, granted if NMFS finds that the taking Acting Deputy Director, Office of Sustainable Fraser’s dolphin, and minke whale will have a negligible impact on the Fisheries, National Marine Fisheries Service. could potentially result from the species or stock(s), will not have an [FR Doc. 2016–23814 Filed 9–30–16; 8:45 am] specified activity. Additionally, 86 FWS unmitigable adverse impact on the BILLING CODE 3510–22–P has requested authorization for Level A availability of the species or stock(s) for Harassment of one individual dwarf subsistence uses (where relevant), and if sperm whale. 86 FWS’s LRS WSEP the permissible methods of taking and DEPARTMENT OF COMMERCE training activities may potentially requirements pertaining to the impact marine mammals at or near the National Oceanic and Atmospheric mitigation, monitoring, and reporting of water surface. In the absence of Administration such taking are set forth. NMFS has mitigation, marine mammals could defined ‘‘negligible impact’’ in 50 CFR potentially be injured or killed by RIN 0648–XE675 216.103 as ‘‘an impact resulting from exploding and non-exploding the specified activity that cannot be projectiles, falling debris, or ingestion of Takes of Marine Mammals Incidental to reasonably expected to, and is not military expended materials. However, Specified Activities; Taking Marine reasonably likely to, adversely affect the based on analyses provided in 86 FWS’s Mammals Incidental to the U.S. Air species or stock through effects on 2016 application, 2016 Environmental Force 86 Fighter Weapons Squadron annual rates of recruitment or survival.’’ Assessment (EA), and for reasons Conducting Long Range Strike The NDAA of 2004 (Public Law 108– discussed later in this document, we do Weapon Systems Evaluation Program 136) removed the ‘‘small numbers’’ and not anticipate that 86 FWS’s LRS WSEP at the Pacific Missile Range Facility at ‘‘specified geographical region’’ activities would result in any serious Kauai, Hawaii limitations indicated earlier and injury or mortality to marine mammals. AGENCY: National Marine Fisheries amended the definition of harassment as Service (NMFS), National Oceanic and it applies to a ‘‘military readiness Description of the Specified Activity activity’’ to read as follows (Section Atmospheric Administration (NOAA), Overview Commerce. 3(18)(B) of the MMPA): (i) any act that injures or has the significant potential to 86 FWS plans to conduct an air-to- ACTION: Notice; issuance of an incidental injure a marine mammal or marine surface mission in the BSURE area of harassment authorization. mammal stock in the wild (Level A the PMRF. The LRS WSEP test objective is to conduct operational evaluations of SUMMARY: In accordance with the Harassment); or (ii) any act that disturbs regulations implementing the Marine or is likely to disturb a marine mammal long range strike weapons and other Mammal Protection Act (MMPA), or marine mammal stock in the wild by munitions as part of LRS WSEP notification is hereby given that we have causing disruption of natural behavioral operations to properly train units to issued an incidental harassment patterns, including, but not limited to, execute requirements within Designed authorization (IHA) to the U.S. Air migration, surfacing, nursing, breeding, Operational Capability Statements, Force 86 Fighter Weapons Squadron (86 feeding, or sheltering, to a point where which describe units’ real-world FWS) to incidentally harass marine such behavioral patterns are abandoned operational expectations in a time of mammals during Long Range Strike or significantly altered (Level B war. Due to threats to national security, Weapons System Evaluation Program Harassment). increased missions involving air-to- surface activities have been directed by (LRS WSEP) activities in the Barking Summary of Request Sands Underwater Range Extension the Department of Defense (DoD). (BSURE) area of the Pacific Missile On May 12, 2016, NMFS received an Accordingly, the U.S. Air Force needs to Range Facility (PMRF) at Kauai, Hawaii. application from 86 FWS for the taking conduct operational evaluations of all of marine mammals, by harassment, phases of long range strike weapons DATES: This authorization is effective incidental to the LRS WSEP within the within the U.S. Navy’s Hawaii Range from October 1, 2016, through PMRF in Kauai, Hawaii from September Complex (HRC). The actions will fulfill November 30, 2016. 1, 2016 through August 31, 2017. 86 the Air Force’s requirement to evaluate FOR FURTHER INFORMATION CONTACT: FWS submitted a revised version of the full-scale maneuvers for such weapons, Laura McCue, Office of Protected renewal request on June 9, 2016 and including scoring capabilities under Resources, NMFS, (301) 427–8401. June 20, 2016, which we considered operationally realistic scenarios. LRS SUPPLEMENTARY INFORMATION: adequate and complete. After WSEP objectives are to evaluate air-to-
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surface and maritime weapon has not changed between the notice of PMRF. Chase aircraft may be used to employment data, evaluate tactics, proposed authorization and this final evaluate weapon release and to track techniques, and procedures in an notice announcing the issuance of the weapons. Flight operations and operationally realistic environment, and authorization. weapons delivery would be in accordance with published Air Force to determine the impact of tactics, Detailed Description of Activities techniques, and procedures on combat directives and weapon operational Air Force training. The munitions The LRS WSEP training missions, release parameters, as well as all associated with the planned activities classified as military readiness applicable Navy safety regulations and are not part of a typical unit’s training activities, refer to the deployment of live criteria established specifically for allocations, and prior to attending a (containing explosive charges) missiles PMRF. Aircraft supporting LSR WSEP WSEP evaluation, most pilots and from aircraft toward the water surface. missions would primarily operate at weapon systems officers have only The actions include air-to-surface test high altitudes—only flying below 3,000 dropped weapons in simulators or used missions of the JASSM and the SDB–I/ feet (914.1 m) for a limited time as the aircraft’s simulation mode. Without II including detonations at the water needed for escorting non-military WSEP operations, pilots would be using surface. vessels outside the hazard area or for these weapons for the first time in Aircraft used for munition releases monitoring the area for protected marine combat. On average, half of the would include bombers and fighter species (e.g., marine mammals, sea participants in each unit drop an actual aircraft. Additional airborne assets, such turtles). Protected marine species aerial weapon for the first time during a WSEP as the P–3 Orion or the P–8 Poseidon, surveys would be temporary and would evaluation. Consequently, WSEP is a would be used to relay telemetry (TM) focus on an area surrounding the military readiness activity and is the last and flight termination system (FTS) weapon impact point on the water. Post- opportunity for squadrons to receive streams between the weapon and mission surveys would focus on the area operational training and evaluations ground stations. Other support aircraft down current of the weapon impact before they deploy. would be associated with range location. Range clearance procedures for clearance activities before and during each mission would cover a much larger Dates and Duration the mission and with air-to-air refueling area for human safety. Weapon release 86 FWS plans to schedule the LRS operations. All weapon delivery aircraft parameters would be conducted as WSEP training missions over one day in would originate from an out base and fly approved by PMRF Range Safety. Daily October 2016. The planned missions into military-controlled airspace prior to mission briefs would specify planned would occur on a weekday during employment. Due to long transit times release conditions for each mission. daytime hours only, with all missions between the out base and mission Aircraft and weapons would be tracked occurring in one day. This IHA is valid location, air-to-air refueling may be for time, space, and position from October 1, 2016 through November conducted in either W–188 or W–189. information. The 86 FWS test director 30, 2016. Bombers, such as the B–1, would would coordinate with the PMRF Range deliver the weapons, conduct air-to-air Specified Geographic Region Safety Officer, Operations Conductor, refueling, and return to their originating Range Facility Control Officer, and other The specific planned impact area is base as part of one sortie. However, applicable mission control personnel for approximately 44 nautical miles (nm) when fighter aircraft are used, the aircraft control, range clearance, and (81 kilometers (km)) offshore of Kauai, distance and corresponding transit time mission safety. Hawaii, in a water depth of about 15,240 to the various potential originating bases feet (ft) (4,645 meters (m)) (see Figure 2– would make return flights after each NMFS provided detailed descriptions 2 of 86 FWS’s application). All activities mission day impractical. In these cases, of the components of the planned will take place within the PMRF, which the aircraft would temporarily (less than mission activities in a previous notice is located in Hawaii off the western one week) park overnight at Hickam Air for the proposed authorization (81 FR shores of the island of Kauai and Force Base (HAFB) and would return to 44277) (July 7, 2016). The information includes broad ocean areas to the north, their home base at the conclusion of has not changed between the notice of south, and west (see Figure 2–1 of 86 each mission set. The LRS WSEP proposed authorization and this final FWS’s application). Within the PMRF, missions scheduled for 2016 are notice announcing the issuance of the activities would occur in the BSURE planned to occur in one day. authorization. area, which lies in Warning Area 188 Approximately 10 Air Force personnel Initial phases of the LRS WSEP (W–188). would be on temporary duty to support operational evaluations are planned for NMFS provided detailed descriptions the mission. October 2016 and would consist of of the activity area in a previous notice Aircraft flight maneuver operations releasing only one live JASSM/JASSM– for the proposed authorization (81 FR and weapon release would be ER and up to eight SDB-Is in military 44277) (July 7, 2016). The information conducted in W–188A boundaries of controlled airspace (Table 1).
TABLE 1—SUMMARY OF PROPOSED TESTING AT PMRF IN 2016
Net explosive Annual total Munition Fusing option weight Detonation scenario number of (lb) munitions
JASSM/JASSMÐER ...... Live/Instantaneous ...... 300 Surface ...... 1 SDBÐI ...... Live/Instantaneous ...... 37 Surface ...... 8 ER = Extended Range; JASSM = Joint Air-to-Surface Stand-off Missile; lb = pounds; SDB = Small Diameter Bomb.
A typical mission day would consist crew briefings, weather checks, clearing monitoring efforts, and other military of pre-mission checks, safety review, airspace, range clearance, mitigations/ protocols prior to launch of weapons.
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Potential delays could be the result of Following is the comment from the Response: NMFS made the multiple factors including, but not Commission and NMFS’ response and information available to the public limited to: Adverse weather conditions the comment received from a private during our 30-day public comment leading to unsafe take-off, landing, and citizen and NMFS’ response. period by publishing the proposed IHA aircraft operations, inability to clear the Comment 1: The Commission in the Federal Register on July 7, 2016 range of non-mission vessels or aircraft, recommends that NMFS and the Air (81 FR 44277) and by posting all of the mechanical issues with mission aircraft Force assess practicable ways to documents to our Web site. In addition, or munitions, or presence of protected supplement the Air Force’s mitigation the USAF posted their draft EA in The species in the impact area. If the and monitoring measures with PAM Garden Island and Honolulu Star mission is cancelled due to any of these, (passive acoustic monitoring), including Advertiser newspapers, as well as other one back-up day has also been obtaining access to the Navy’s places, describing the action and the scheduled as a contingency. These hydrophone array data at PMRF. potential impacts of the action on the Response: NMFS agrees that the use standard operating procedures are environment. A 30-day public comment of PAM would be beneficial for usually done in the morning, and live period was available for public input. range time may begin in late morning monitoring and mitigation for mission once all checks are complete and activities. For this one-day mission, Description of Marine Mammals in the approval is granted from range control. NMFS considered the use of PAM for Area of the Specified Activity The range would be closed to the public mitigation and monitoring but, due to for a maximum of four hours per timing and logistical constraints, the use There are 25 marine mammal species mission day. of PAM will not be required. For any with potential or confirmed occurrence future actions by the applicant in this in the activity area; however, not all of Comments and Responses area, the use of PAM for mitigation or these species occur in this region during A notice of NMFS’ proposal to issue monitoring purposes will be considered. the project timeframe. Table 2 lists and an Authorization to 86 FWS published Comment 2: One private citizen summarizes key information regarding in the Federal Register on July 7, 2016 requested notice of this military training stock status and abundance of these (81 FR 44277). During the 30-day public exercise to be posted in the Kauai species. Please see NMFS’ 2015 Stock comment period, NMFS received newspaper to help generate adequate Assessment Reports (SAR), available at comments from the Marine Mammal public awareness and facilitate a www.nmfs.noaa.gov/pr/sars for more Commission (Commission) and one healthy amount of discussion on this detailed accounts of these stocks’ status relevant comment from a private citizen. IHA prior to commencing activities. and abundance.
TABLE 2—MARINE MAMMALS THAT COULD OCCUR IN THE BSURE AREA
ESA/MMPA Stock abundance (CV, status; 3 Species Stock strategic (Y/ Nmin, most recent PBR Occurrence in BSURE area abundance survey) 2 N) 1
Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)
Family: Balaenopteridae
Humpback whale Central North Pacific ...... E/D; Y 10,103 (0.300; 7,890; 83 Seasonal; throughout (Megaptera 2006). known breeding grounds novaeangliae) 4. during winter and spring (most common Novem- ber through April). Blue Whale (Balaenoptera Central North Pacific ...... E/D; Y 81 (1.14; 38; 2010) ...... 0.1 Seasonal; infrequent winter musculus). migrant; few sightings, mainly fall and winter; considered rare. Fin whale (Balaenoptera Hawaii ...... E/D; Y 58 (1.12; 27; 2010) ...... 0.1 Seasonal, mainly fall and physalus). winter; considered rare. Sei whale (Balaenoptera Hawaii ...... E/D; Y 178 (0.90; 93; 2010) ...... 0.2 Rare; limited sightings of borealis). seasonal migrants that feed at higher latitudes. Bryde’s whale Hawaii ...... -; N 798 (0.28; 633; 2010) ...... 6.3 Uncommon; distributed (Balaenoptera brydei/ throughout the Hawaiian edeni). EEZ. Minke whale (Balaenoptera Hawaii ...... -; N n/a (n/a; n/a; 2010) ...... Undet. Regular but seasonal (Oc- acutorostrata). toberÐApril).
Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family: Physeteridae
Sperm whale (Physeter Hawaii ...... E/D; Y 3,354 (0.34; 2,539; 2010) .. 10.2 Widely distributed year macrocephalus). round; more likely in waters > 1,000 m depth, most often > 2,000 m.
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TABLE 2—MARINE MAMMALS THAT COULD OCCUR IN THE BSURE AREA—Continued
ESA/MMPA status; Stock abundance (CV, PBR 3 Occurrence in BSURE area Species Stock strategic (Y/ Nmin, most recent abundance survey) 2 N) 1
Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family: Kogiidae
Pygmy sperm whale (Kogia Hawaii ...... -; N n/a (n/a; n/a; 2010) ...... Undet. Widely distributed year breviceps). round; more likely in waters > 1,000 m depth. Dwarf sperm whale (Kogia Hawaii ...... -; N n/a (n/a; n/a; 2010) ...... Undet. Widely distributed year sima). round; more likely in waters > 500 m depth.
Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family delphinidae
Killer whale (Orcinus orca) Hawaii ...... -; N 101 (1.00; 50; 2010) ...... 1 Uncommon; infrequent sightings. False killer whale Hawaii Pelagic ...... -; N 1,540 (0.66; 928; 2010) ..... 9.3 Regular. (Pseudorca crassidens). NWHI Stock ...... -; N 617 (1.11; 290; 2010) ...... 2.3 Regular. Pygmy killer whale (Feresa Hawaii ...... -; N 3,433 (0.52; 2,274; 2010) .. 23 Year-round resident. attenuata). Short-finned pilot whale Hawaii ...... -; N 12,422 (0.43; 8,872; 2010) 70 Commonly observed (Globicephala around Main Hawaiian macrorhynchus). Islands and North- western Hawaiian Is- lands. Melon headed whale Hawaii Islands stock ...... -; N 5,794 (0.20; 4,904; 2010) .. 4 Regular. (Peponocephala electra). Bottlenose dolphin Hawaii pelagic ...... -; N 5,950 (0.59; 3,755; 2010) .. 38 Common in deep offshore (Tursiops truncatus). waters. Pantropical spotted dolphin Hawaii pelagic ...... -; N 15,917 (0.40; 11,508; 115 Common; primary occur- (Stenella attenuata). 2010). rence between 100 and 4,000 m depth. Striped dolphin (Stenella Hawaii ...... -; N 20,650 (0.36; 15,391; 154 Occurs regularly year coeruleoala). 2010). round but infrequent sighting during survey. Spinner dolphin (Stenella Hawaii pelagic ...... -; N n/a (n/a; n/a; 2010) ...... Undet. Common year-round in off- longirostris). shore waters. Rough-toothed dolphins Hawaii stock ...... -; N 6,288 (0.39; 4,581; 2010) .. 46 Common throughout the (Steno bredanensis). Main Hawaiian Islands and Hawaiian Islands EEZ. Fraser’s dolphin Hawaii ...... -; N 16,992 (0.66; 10,241; 102 Tropical species only re- (Lagenodelphis hosei). 2010). cently documented within Hawaiian Islands EEZ (2002 survey). Risso’s dolphin (Grampus Hawaii ...... -; N 7,256 (0.41; 5,207; 2010) .. 42 Previously considered rare griseus). but multiple sightings in Hawaiian Islands EEZ during various surveys conducted from 2002Ð 2012.
Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family: Ziphiidae
Cuvier’s beaked whale Hawaii ...... -; N 1,941 (n/a; 1,142; 2010) .... 11.4 Year-round occurrence but (Ziphius cavirostris). difficult to detect due to diving behavior. Blainville’s beaked whale Hawaii ...... -; N 2,338 (1.13; 1,088; 2010) .. 11 Year-round occurrence but (Mesoplodon densirostris). difficult to detect due to diving behavior. Longman’s beaked whale Hawaii ...... -; N 4,571 (0.65; 2,773; 2010) .. 28 Considered rare; however, (Indopacetus pacificus). multiple sightings during 2010 survey.
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TABLE 2—MARINE MAMMALS THAT COULD OCCUR IN THE BSURE AREA—Continued
ESA/MMPA status; Stock abundance (CV, PBR 3 Occurrence in BSURE area Species Stock strategic (Y/ Nmin, most recent abundance survey) 2 N) 1
Order—Carnivora—Superfamily Pinnipedia (seals, sea lions)
Family: Phocidae
Hawaiian monk seal Hawaii ...... E/D; Y 1,112 (n/a; 1,088; 2013) .... Undet. Predominantly occur at (Neomonachus Northwestern Hawaiian schauinslandi). Islands; approximately 138 individuals in Main Hawaiian Islands. 1 ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality ex- ceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any spe- cies or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented here are from the 2015 Pacific SARs, except humpback whales—see comment 4. 3 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be re- moved from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). 4 Values for humpback whales are from the 2015 Alaska SAR.
Of these 25 species, five are listed as seasonal and only occur in these waters calculate take. Because of this, two endangered under the ESA and as later in the winter (blue whale, fin additional species were included in take depleted throughout its range under the whale, sei whale, killer whale); some are exposures. Species descriptions for MMPA. These are: Blue whale, fin rare in the area or unlikely to be these three species are provided below. whale, sei whale, sperm whale, and the impacted due to small density estimates Hawaiian monk seal. Humpback whales (Longman’s beaked whale, Bryde’s Fraser’s dolphin were listed as endangered under the whale, false killer whale, pygmy killer Fraser’s dolphin are distributed ESA in 1973. NMFS evaluated the status whale, short-finned pilot whale, melon- worldwide in tropical waters (Caretta et of this population, and on September 8, headed whale, bottlenose dolphin, al., 2011). Very little is known about 2016, NMFS divided the globally listed pantropical spotted dolphin, striped this species, which was first humpback whale into 14 distinct dolphin, spinner dolphin, rough- documented within Hawaiian waters in population segment (DPS), removed the toothed dolphin, Risso’s dolphin, 2002. There is a single stock in Hawaii current species-level listing, and in its Cuvier’s beaked whale, Blainville’s with a current population estimate of place listed four DPSs as endangered beaked whale, and Hawaiian monk 16,992 animals and PBR at 102 animals and one DPS as threatened (81 FR seal). Because these 19 species are 62259). The remaining nine DPSs were unlikely to occur within the BSURE area (Caretta et al., 2016). Current population not listed because it was determined based on modeling predictions, 86 FWS trends are not available for this species. that they are not threatened or has not requested, and NMFS will not This species is not listed under the endangered under the ESA. The issue take authorizations for them. Endangered Species Act (ESA), and is Hawaiian DPS of humpback whales, Thus, NMFS does not consider these not considered strategic or designated as which would be present in the action species further in this notice. depleted under the Marine Mammal area, were not listed under the ESA in We have reviewed 86 FWS’s species Protection Act (MMPA) (Caretta et al., NMFS final rule. descriptions, including life history 2016). The biggest threat to the species Of the 25 species that may occur in information, distribution, regional is fishery-related injuries (Caretta et al., Hawaiian waters, only certain stocks distribution, diving behavior, and 2011). occur in the impact area, while others acoustics and hearing, for accuracy and Minke whale are island-associated or do not occur at completeness. We refer the reader to the depths of the impact area (e.g. false Sections Three and Four of 86 FWS’s Minke whales are found worldwide in killer whale insular stock, island- application rather than reprinting the deep waters. There are three stocks in associated stocks of bottlenose, spinner, information here. Please also refer to the Pacific: The Hawaiian stock, the and spotted dolphins). Only five species NMFS’ Web site (www.nmfs.noaa.gov/ California/Oregon/Washington stock, are considered likely to be in the impact pr/species/mammals) for generalized and the Alaskan stock. Only the area during the one day of project species accounts. We provided Hawaiian stock is affected by the project activities. This number has increased additional information for two of the activities. Minke whales occur from the proposed IHA based on marine mammals (dwarf and pygmy seasonally in Hawaiian waters changes to the project dates. Dates have sperm whales) with potential for (October–April). Current abundance moved back to October (from occurrence in the area of the specified estimates, PBR, and population trends September), and the use of fall densities activity in our Federal Register notice of for this stock are unknown. This stock are now used. The species now modeled proposed authorization (81 FR 44277) is not listed under the ESA, nor are they to have take exposures include dwarf (July 7, 2016). Since that publication, considered strategic, or designated as sperm whale, pygmy sperm whale, the dates for the LRS WSEP activities depleted under the MMPA. One of the Fraser’s dolphin, minke whale, and changed to later in the year; therefore, suggested habitat concerns for this stock humpback whale. Other species are different densities were used to is the increasing levels of anthropogenic
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noise in the world’s oceans (Caretta et by exposing them to overpressure and and impact on the effectiveness of the al., 2014). acoustic components generated by live military readiness activity. ordnance detonation at or near the NMFS and 86 FWS have worked to Humpback whale surface of the water. Exposure to energy identify potential practicable and Humpback whales are found or pressure resulting from these effective mitigation measures, which worldwide in all ocean basins. In detonations could result in Level A include a careful balancing of the likely winter, most humpback whales occur in harassment (physical injury and benefit of any particular measure to the the subtropical and tropical waters of permanent threshold shift, or PTS) and marine mammals with the likely effect the Northern and Southern Level B harassment (temporary of that measure on personnel safety, Hemispheres. These wintering grounds threshold shift, or TTS and behavioral practicality of implementation, and are used for mating, giving birth, and disturbances). Based on modeled impact on the ‘‘military-readiness nursing new calves. Humpback whales predictions, LRS WSEP activities are not activity.’’ We refer the reader to Section migrate nearly 3,000 mi (4,830 km) from expected to result in serious injury or 11 of 86 FWS’s application for more their summer foraging grounds to these mortality. detailed information on the planned wintering grounds in Hawaii away. The NMFS provided detailed information mitigation measures which are also average date of the first sighting of on these potential effects in the notice described below. humpback whales in Hawaii is of the proposed Authorization (81 FR Visual Aerial Surveys: For the LRS approximately the first week in October, 44277) (July 7, 2016). The information WSEP activities, mitigation procedures with whales seen earlier and earlier in presented in that notice has not consist of visual aerial surveys of the the past five years (E. Lyman, personal changed. impact area for the presence of communication, August 2016). protected marine species (including Humpback whales were listed as Anticipated Effects on Habitat marine mammals). During aerial endangered under the Endangered Detonations of live ordnance would observation, Navy test range personnel Species Conservation Act (ESCA) in result in temporary changes to the water may survey the area from an S–61N June 1970. In 1973, the ESA replaced environment. An explosion on the helicopter or C–62 aircraft that is based the ESCA, and continued to list surface of the water from these weapons at the PMRF land facility (typically humpbacks as endangered. Because the could send a shock wave and blast noise when missions are located relatively recent rule by NMFS did not consider through the water, release gaseous by- close to shore). Alternatively, when the Hawaii DPS of humpbacks to be products, create an oscillating bubble, missions are located farther offshore, threatened or endangered under the and cause a plume of water to shoot up surveys may be conducted from mission ESA, this DPS is not listed under the from the water surface. However, these aircraft (typically jet aircraft such as F– ESA. The current abundance estimate effects would be temporary and not 15E, F–16, or F–22) or a U.S. Coast for this DPS is 11,398 individuals and expected to last more than a few Guard C–130 aircraft. its population trend estimate is 5.5–6 seconds. Similarly, 86 FWS does not Protected species surveys will begin percent (81 FR 62259). expect any long-term impacts with within one hour of weapon release and regard to hazardous constituents to as close to the impact time as feasible, Potential Effects of the Specified occur. 86 FWS considered the given human safety requirements. Activity on Marine Mammals and Their introduction of fuel, debris, ordnance, Survey personnel must depart the Habitat and chemical materials into the water human hazard zone before weapon This section of the notice of the column within its EA and determined release, in accordance with Navy safety proposed Authorization (81 FR 44277) the potential effects of each to be standards. Personnel conduct aerial (July 7, 2016) included a summary and insignificant. NMFS provided a surveys within an area defined by an discussion of the ways that components summary of the analyses in the notice approximately 2-nm (3,704 m) radius (e.g., munition strikes and detonation for the proposed Authorization (81 FR around the impact point, with surveys effects) of the specified activity, 44277) (July 7, 2016). The information typically flown in a star pattern. This including mitigation, may impact presented in that notice has not survey distance is consistent with marine mammals and their habitat. The changed. requirements already in place for Estimated Take by Incidental similar actions at PMRF. Observers Harassment section later in this Mitigation would consist of aircrew operating the document will include a quantitative In order to issue an incidental take C–26, S–61N, and C–130 aircraft from analysis of the number of individuals authorization under section 101(a)(5)(D) PMRF and the Coast Guard. These that we expect 86 FWS to take during of the MMPA, NMFS must set forth the aircrew are trained and have had prior this activity. The Negligible Impact permissible methods of taking pursuant experience conducting aerial marine Analysis section will include the to such activity, and other means of mammal surveys and have provided analysis of how this specific activity effecting the least practicable adverse similar support for other missions at would impact marine mammals, and impact on such species or stock and its PMRF. Aerial surveys are typically will consider the content of this section, habitat, paying particular attention to conducted at an altitude of about 200 the Estimated Take by Incidental rookeries, mating grounds, and areas of feet (61 m), but altitude may vary Harassment section and the Mitigation similar significance, and the availability somewhat depending on sea state and section to draw conclusions regarding of such species or stock for taking for atmospheric conditions. The C–26 and the likely impacts of these activities on certain subsistence uses (where other aircraft would generally be the reproductive success or survivorship relevant). operated at a slightly higher altitude of individuals and from that on the The NDAA of 2004 amended the than the S–61N helicopter. If adverse affected marine mammal populations or MMPA as it relates to military-readiness weather conditions preclude the ability stocks. activities and the incidental take for aircraft to safely operate, missions In summary, the LRS WSEP training authorization process such that ‘‘least would either be delayed until the exercises proposed for taking of marine practicable adverse impact’’ shall weather clears or cancelled for the day. mammals under an Authorization have include consideration of personnel For 2016 LRS WSEP missions, one day the potential to take marine mammals safety, practicality of implementation, has been designated as a weather back-
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up day. The observers will be provided We have carefully evaluated 86 FWS’s effective implementation of the with the GPS location of the impact proposed mitigation measures in the mitigation. area. Once the aircraft reaches the context of ensuring that we prescribe Based on our evaluation of 86 FWS’s impact area, pre-mission surveys the means of effecting the least proposed measures, as well as other typically last for 30 minutes, depending practicable impact on the affected measures that may be relevant to the on the survey pattern. The fixed-wing marine mammal species and stocks and specified activity, we have determined aircraft are faster than the helicopter; their habitat. Our evaluation of potential that the mitigation measures, including and, therefore, protected species may be measures included consideration of the visual aerial surveys and mission delays more difficult to spot. However, to following factors in relation to one if protected species are observed in the compensate for the difference in speed, another: impact area, provide the means of the aircraft may fly the survey pattern • The manner in which, and the effecting the least practicable impact on multiple times. degree to which, the successful marine mammal species or stocks and If a protected species is observed in implementation of the measure is their habitat, paying particular attention the impact area, weapon release would expected to minimize adverse impacts to rookeries, mating grounds, and areas be delayed until one of the following to marine mammals; of similar significance (while also conditions is met: (1) The animal is • The proven or likely efficacy of the considering personnel safety, observed exiting the impact area; (2) the specific measure to minimize adverse practicality of implementation, and the animal is thought to have exited the impacts as planned; and impact of effectiveness of the military impact area based on its course and • The practicability of the measure readiness activity). speed; or (3) the impact area has been for applicant implementation. Monitoring and Reporting clear of any additional sightings for a Any mitigation measure(s) prescribed period of 30 minutes. All weapons will by NMFS should be able to accomplish, In order to issue an Authorization for be tracked and their water entry points have a reasonable likelihood of an activity, section 101(a)(5)(D) of the will be documented. accomplishing (based on current MMPA states that we must set forth ‘‘requirements pertaining to the Post-mission surveys would begin science), or contribute to the monitoring and reporting of such immediately after the mission is accomplishment of one or more of the taking.’’ The MMPA implementing complete and the Range Safety Officer general goals listed here: regulations at 50 CFR 216.104(a)(13) declares the human safety area is 1. Avoidance or minimization of indicate that requests for an reopened. Approximate transit time injury or death of marine mammals authorization must include the from the perimeter of the human safety wherever possible (goals 2, 3, and 4 may suggested means of accomplishing the area to the weapon impact area would contribute to this goal). necessary monitoring and reporting that depend on the size of the human safety 2. A reduction in the numbers of will result in increased knowledge of area and vary between aircraft but is marine mammals (total number or the species and our expectations of the expected to be less than 30 minutes. number at biologically important time level of taking or impacts on Post-mission surveys would be or location) exposed to stimuli expected populations of marine mammals present conducted by the same aircraft and to result in incidental take (this goal may contribute to 1, above, or to in the action area. aircrew that conducted the pre-mission 86 FWS submitted measures for reducing takes by behavioral harassment surveys and would follow the same marine mammal monitoring and only). patterns as pre-mission surveys but reporting in their IHA application. Any 3. A reduction in the number of times would focus on the area down current monitoring requirement we prescribe (total number or number at biologically of the weapon impact area to determine should improve our understanding of important time or location) individuals if protected species were affected by the one or more of the following: mission (observation of dead or injured would be exposed to stimuli that we • Occurrence of marine mammal animals). If physical injury or mortality expect to result in the take of marine species in action area (e.g., presence, occurs to a protected species due to LRS mammals (this goal may contribute to 1, abundance, distribution, density). WSEP missions, NMFS would be above, or to reducing harassment takes • Nature, scope, or context of likely notified immediately. only). marine mammal exposure to potential Based on the ranges presented in 4. A reduction in the intensity of stressors/impacts (individual or Table 5 and factoring operational exposures (either total number or cumulative, acute or chronic), through limitations (e.g. fuel constraints) number at biologically important time better understanding of: (1) Action or associated with the mission, 86 FWS or location) to training exercises that we environment (e.g., source estimates that during pre-mission expect to result in the take of marine characterization, propagation, ambient surveys, the planned monitoring area mammals (this goal may contribute to 1, noise); (2) Affected species (e.g., life would be approximately 2 nm (3,704 m) above, or to reducing the severity of history, dive patterns); (3) Co- from the target area radius around the harassment takes only). occurrence of marine mammal species impact point, with surveys typically 5. Avoidance or minimization of with the action; or (4) Biological or flown in a star pattern, which is adverse effects to marine mammal behavioral context of exposure (e.g., age, consistent with requirements already in habitat, paying special attention to the calving or feeding areas). place for similar actions at PMRF and food base, activities that block or limit • Individual responses to acute encompasses the entire TTS threshold passage to or from biologically stressors, or impacts of chronic ranges (sound exposure level, or SEL) important areas, permanent destruction exposures (behavioral or physiological). for mid-frequency cetaceans, half of the of habitat, or temporary destruction/ • How anticipated responses to PTS SEL range for high-frequency disturbance of habitat during a stressors impact either: (1) Long-term cetaceans, the entire PTS ranges for low- biologically important time. fitness and survival of an individual; or frequency cetaceans, and half of the TTS 6. For monitoring directly related to (2) Population, species, or stock. range for LF cetaceans. Given mitigation—an increase in the • Effects on marine mammal habitat operational constraints, surveying these probability of detecting marine and resultant impacts to marine larger areas would not be feasible. mammals, thus allowing for more mammals.
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• Mitigation and monitoring from exposure to explosive detonations. Level A and Level B harassment. The effectiveness. In this section, we will relate the extremely short duration of the activity NMFS will include the following potential effects to marine mammals (essentially three instantaneous events measures in the LRS WSEP from detonation of explosives to the within a day) and the robust monitoring Authorization. They are: MMPA regulatory definitions of Level A and mitigation measures we proposed (1) 86 FWS will track the use of the and Level B harassment. This section minimize the likelihood that Level A PMRF for mission activities and will also quantify the effects that might harassment will occur. In short, protected species observations, through occur from the planned military although the new thresholds were not the use of mission reporting forms. readiness activities in PMRF BSURE used in the calculation of take, we (2) 86 FWS will submit a summary area. believe that the existing analysis, report of marine mammal observations 86 FWS thresholds used for onset of mitigation, and authorization and LRS WSEP activities to the NMFS temporary threshold shift (TTS; Level B adequately address the likely effects and Pacific Islands Regional Office (PIRO) Harassment) and onset of permanent protective measures. and the Office of Protected Resources 90 threshold shift (PTS; Level A days after expiration of the current Harassment) are consistent with the Level B Harassment Authorization. This report must include thresholds outlined in the Navy’s report Of the potential effects described the following information: (i) Date and titled, ‘‘Criteria and Thresholds for U.S. earlier in this document, the following time of each LRS WSEP exercise; (ii) a Navy Acoustic and Explosive Effects are the types of effects that fall into the complete description of the pre-exercise Analysis Technical Report,’’ which the Level B harassment category: and post-exercise activities related to Navy coordinated with NMFS. The Behavioral Harassment—Behavioral mitigating and monitoring the effects of report is available on the internet at: disturbance that rises to the level LRS WSEP exercises on marine mammal http://nwtteis.com/Portals/NWTT/ described in the above definition, when populations; (iii) an accounting of the DraftEIS2014/SupportingDocs/NWTT_ resulting from exposures to non- munitions use; and (iv) results of the NMSDD_Technical_Report_23_ impulsive or impulsive sound, is Level LRS WSEP exercise monitoring, January%202014_reduced.pdf B harassment. Some of the lower level including number of marine mammals In August 2016, NMFS released its physiological stress responses discussed (by species) that may have been Technical Guidance for Assessing the earlier would also likely co-occur with harassed due to presence within the Effects of Anthropogenic Sound on the predicted harassments, although activity zone. Marine Mammal Hearing, which these responses are more difficult to (3) 86 FWS will monitor for marine established new thresholds for detect and fewer data exist relating mammals in the proposed action area. If predicting auditory injury, which these responses to specific received 86 FWS personnel observe or detect any equates to Level A harassment under the levels of sound. When predicting Level dead or injured marine mammals prior MMPA. In the August 4, 2016, Federal B harassment based on estimated to testing, or detects any injured or dead Register Notice announcing the behavioral responses, those takes may marine mammal during live fire Guidance (81 FR 51694), NMFS have a stress-related physiological exercises, 86 FWS must cease explained the approach it would take component. operations and submit a report to NMFS during a transition period, wherein we Temporary Threshold Shift—As within 24 hours. balance the need to consider this new discussed in the proposed Federal (4) 86 FWS must immediately report best available science with the fact that Register notice (81 FR 44277) (July 7, any unauthorized takes of marine some applicants have already 2016), TTS can affect how an animal mammals (i.e., serious injury or committed time and resources to the behaves in response to the environment, mortality) to NMFS and to the development of acoustic analyses based including conspecifics, predators, and respective Pacific Islands Region on our previous thresholds and have prey. NMFS classifies TTS (when stranding network representative. 86 constraints that preclude the resulting from exposure to explosives FWS must cease operations and submit recalculation of take estimates, as well and other impulsive sources) as Level B a report to NMFS within 24 hours. consideration of where the agency is in harassment, not Level A harassment the decision-making pipeline. In that (injury). Estimated Numbers of Marine Notice, we included a non-exhaustive Mammals Taken by Harassment list of factors that would inform the Level A Harassment The NDAA amended the definition of most appropriate approach for Of the potential effects that were harassment as it applies to a ‘‘military considering the new guidance, described earlier, the following are the readiness activity’’ to read as follows including: How far in the MMPA types of effects that fall into the Level (Section 3(18)(B) of the MMPA): (i) Any process the applicant has progressed; A Harassment category: act that injures or has the significant the scope of the effects; when the Permanent Threshold Shift—PTS potential to injure a marine mammal or authorization is needed; the cost and (resulting from exposure to explosive marine mammal stock in the wild (Level complexity of the analysis; and the detonations) is irreversible and NMFS A Harassment); or (ii) any act that degree to which the Guidance is considers this to be an injury. disturbs or is likely to disturb a marine expected to affect our analysis. Gastrointestinal (GI) Tract Injury—GI mammal or marine mammal stock in the In this case, the Air Force has tract injury includes contusions and wild by causing disruption of natural requested an authorization for a one-day lacerations from blast exposures, behavioral patterns, including, but not activity that would include one particularly in air-containing regions of limited to, migration, surfacing, nursing, explosive release and two explosive the tract. breeding, feeding, or sheltering, to a bursts of four munitions timed a few Slight Lung Injury—These injuries point where such behavioral patterns seconds apart and occur in October. Our may include slight blast injuries to the are abandoned or significantly altered analysis in the proposed IHA for this lungs but would be survivable. (Level B Harassment). action (81 FR 44277) (July 7, 2016) NMFS previously described the includes the consideration of, and we Mortality physiological responses, and behavioral proposed to authorize, takes of small Mortality may include injuries that responses that could potentially result numbers of marine mammals by both lead to mortality including primary
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(moderate to severe) blast injuries and mortality to one percent of exposed Authorization when addressing noise barotrauma. Thresholds are based on the animals (Finneran and Jenkins, 2012). impacts from explosives. level of impact that would cause Table 4 outlines the explosive extensive lung injury resulting in thresholds used by NMFS for this
86 FWS completed acoustic modeling frequency, duration, temporal pattern, from detonations were obtained from to determine the distances to NMFS’s and amplitude) and pressure at a given Finneran and Jenkins (2012) and explosive thresholds from their location. Criteria are the resulting types include mortality, injurious harassment explosive ordnance, which was then of possible impact and include (Level A), and non-injurious harassment used with each species’ density to mortality, injury, and harassment. A (Level B). In some cases, separate determine number of exposure threshold is the level of pressure or thresholds have been developed for estimates. Below is a summary of those noise above which the impact criteria different species groups or functional modeling efforts. are reached. hearing groups. Functional hearing Standard impulsive and acoustic The zone of influence is defined as groups included in the analysis are low- metrics were used for the analysis of frequency cetaceans, mid-frequency the area or volume of ocean in which underwater energy and pressure waves marine mammals could be exposed to cetaceans, high-frequency cetaceans, in this document. Several different and Phocid pinnipeds. various pressure or acoustic energy metrics are important for understanding levels caused by exploding ordnance. risk assessment analysis of impacts to The maximum estimated range, or Refer to Appendix A of 86 FWS’s marine mammals: SPL is the ratio of the radius, from the detonation point to application for a description of the absolute sound pressure to a reference which the various thresholds extend for method used to calculate impact areas level, SEL is measure of sound intensity all munitions planned to be released in for explosives. The pressure and energy and duration, and positive impulse is a 24-hour time period was calculated for levels considered to be of concern are the time integral of the pressure over the each species based on explosive defined in terms of metrics, criteria, and initial positive phase of an arrival. acoustic characteristics, sound thresholds. A metric is a technical The criteria and thresholds used to propagation, and sound transmission standard of measurement that describes estimate potential pressure and acoustic loss in the Study Area, which the acoustic environment (e.g., impacts to marine mammals resulting incorporates water depth, sediment
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type, wind speed, bathymetry, and time period. The population would eliminate this, the acoustic model temperature/salinity profiles (Table 5). refresh after 24 hours. In this case, only results were rounded to the nearest The ranges were used to calculate the one mission day is planned for 2016, whole animal to obtain the exposure total area (circle) of the zones of and therefore, only one event is estimates from 2016 missions. influence for each criterion/threshold. modeled that would impact the same Furthermore, to eliminate ‘‘double- To eliminate ‘‘double-counting’’ of population of animals. Details of the counting’’ of animals, exposure results animals, impact areas from higher acoustic modeling method are provided from higher impact categories (e.g., impact categories (e.g., mortality) were in Appendix A of the application. mortality) were subtracted from lower subtracted from areas associated with The resulting total number of marine impact categories (e.g., Level A lower impact categories (e.g., Level A mammals potentially exposed to the harassment). For impact categories with harassment). The estimated number of various levels of thresholds is shown in multiple criteria and/or thresholds (e.g., marine mammals potentially exposed to Table 7. An animal is considered three criteria and four thresholds the various impact thresholds was then ‘‘exposed’’ to a sound if the received associated with Level A harassment), calculated as the product of the adjusted sound level at the animal’s location is numbers in the table are based on the impact area, animal density, and above the background ambient acoustic threshold resulting in the greatest number of events. Since the model level within a similar frequency band. number of exposures. These exposure accumulates the energy from all The exposure calculations from the estimates do not take into account the detonations within a 24-hour timeframe, model output resulted in decimal required mitigation and monitoring it is assumed that the same population values, suggesting in most cases that a measures, which may decrease the of animals is being impacted within that fraction of an animal was exposed. To potential for impacts.
TABLE 5—DISTANCES (M) TO EXPLOSIVE THRESHOLDS FROM 86 FWS’S EXPLOSIVE ORDNANCE
Level A harassment 2 Level B harassment
1 GI tract PTS TTS Behavioral Species Mortality Slight lung injury injury Applicable Applicable Applicable Applicable Applicable 237 dB SPL SEL* SPL* SEL* SPL* SEL*
Humpback Whale...... 38 81 165 2,161 330 6,565 597 13,163 Blue Whale...... 28 59 165 2,161 330 6,565 597 13,163 Fin Whale...... 28 62 165 2,161 330 6,565 597 13,163 Sei Whale...... 38 83 165 2,161 330 6,565 597 13,163 Bryde’s Whale...... 38 81 165 2,161 330 6,565 597 13,163 Minke Whale...... 55 118 165 2,161 330 6,565 597 13,163 Sperm Whale...... 33 72 165 753 330 3,198 597 4,206 Pygmy Sperm Whale ...... 105 206 165 6,565 3,450 20,570 6,565 57,109 Dwarf Sperm Whale ...... 121 232 165 6,565 3,450 20,570 6,565 57,109 Killer Whale...... 59 126 165 753 330 3,198 597 4,206 False Killer Whale ...... 72 153 165 753 330 3,198 597 4,206 Pygmy Killer Whale ...... 147 277 165 753 330 3,198 597 4,206 Short-finned Pilot Whale .. 91 186 165 753 330 3,198 597 4,206 Melon-headed Whale...... 121 228 165 753 330 3,198 597 4,206 Bottlenose Dolphin...... 121 232 165 753 330 3,198 597 4,206 Pantropical Spotted Dol- phin ...... 147 277 165 753 330 3,198 597 4,206 Striped Dolphin...... 147 277 165 753 330 3,198 597 4,206 Spinner Dolphin...... 147 277 165 753 330 3,198 597 4,206 Rough-toothed Dolphin.... 121 232 165 753 330 3,198 597 4,206 Fraser’s Dolphin...... 110 216 165 753 330 3,198 597 4,206 Risso’s Dolphin...... 85 175 165 753 330 3,198 597 4,206 Cuvier’s Beaked Whale ... 51 110 165 753 330 3,198 597 4,206 Blainville’s Beaked Whale 79 166 165 753 330 3,198 597 4,206 Longman’s Beaked Whale 52 113 165 753 330 3,198 597 4,206 Hawaiian Monk Seal ...... 135 256 165 1,452 1,107 3,871 1,881 6,565 1 Based on Goertner (1982) 2 Based on Richmond et al. (1973) * Based on the applicable Functional Hearing Group
Density Estimation TABLE 6—MARINE MAMMAL FALL DEN- TABLE 6—MARINE MAMMAL FALL DEN- SITY ESTIMATES WITHIN 86 FWS’S SITY ESTIMATES WITHIN 86 FWS’S Density estimates for marine PMRF PMRF—Continued mammals were derived from the Navy’s draft 2016 Technical Report of Marine Species Density Species Density Species Density Database (NMSDD). (animals/km 2) (animals/km 2) NMFS refers the reader to Section 3 of 86 FWS’s application for detailed Humpback Whale ...... 0.0211 Minke Whale ...... 0.00423 information on all equations used to Blue Whale ...... 0.00005 Sperm Whale ...... 0.00156 calculate densities; also presented in Fin Whale ...... 0.00006 Pygmy sperm whale ...... 0.00291 Sei Whale ...... 0.00016 Dwarf sperm whale ...... 0.00714 Table 6. Bryde’s Whale ...... 0.00010 Killer Whale ...... 0.00006
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TABLE 6—MARINE MAMMAL FALL DEN- TABLE 6—MARINE MAMMAL FALL DEN- Take Estimation SITY ESTIMATES WITHIN 86 FWS’S SITY ESTIMATES WITHIN 86 FWS’S Table 7 indicates the modeled PMRF—Continued PMRF—Continued potential for lethality, injury, and non- injurious harassment (including Density Density behavioral harassment) to marine Species 2 Species 2 (animals/km ) (animals/km ) mammals in the absence of mitigation False Killer Whale (insular) .. 0.00050 Rough-toothed Dolphin ...... 0.00470 measures. All other species had zero False Killer Whale (NWHI, Fraser’s Dolphin ...... 0.02100 takes modeled for each category. 86 pelagic) ...... 0.00071 Risso’s Dolphin ...... 0.00470 FWS and NMFS estimate that one Pygmy Killer Whale ...... 0.00440 Cuvier’s Beaked Whale ...... 0.00030 marine mammal species could be Short-finned Pilot Whale ...... 0.00919 Blainville’s Beaked Whale .... 0.00086 exposed to injurious Level A Melon-headed Whale ...... 0.00200 Longman’s Beaked Whale ... 0.00310 harassment noise levels (187 dB SEL) Bottlenose Dolphin ...... 0.00316 Hawaiian Monk Seal ...... 0.00003 and five species could be exposed to Pantropical Spotted Dolphin 0.00623 Level B harassment (TTS and Striped Dolphin ...... 0.00335 Behavioral) noise levels in the absence Spinner Dolphin ...... 0.00204 of mitigation measures.
TABLE 7—MODELED NUMBER OF MARINE MAMMALS POTENTIALLY AFFECTED BY LRS WSEP OPERATIONS
Level A har- Level B har- Level B har- Species Mortality assment assment assment (PTS only) (TTS) (Behavioral)
Dwarf sperm whale ...... 0 1 9 64 Pygmy sperm whale ...... 0 0 3 26 Fraser’s dolphin ...... 0 0 1 0 Minke whale ...... 0 0 1 2 Humpback whale ...... 0 0 3 9 TOTAL ...... 0 1 17 101
Based on the mortality exposure enough information on which to base an • Impacts on habitat affecting rates of estimates calculated by the acoustic impact determination. In addition to recruitment/survival; and model, zero marine mammals are considering estimates of the number of • The effectiveness of monitoring and expected to be affected by pressure marine mammals that might be ‘‘taken’’ mitigation measures to reduce the levels associated with mortality or through behavioral harassment, we number or severity of incidental take. serious injury. Zero marine mammals consider other factors, such as the likely For reasons stated previously in this are expected to be exposed to pressure nature of any responses (e.g., intensity, document, including modeling levels associated with slight lung injury duration), the context of any responses predictions that estimated no serious or gastrointestinal tract injury. (e.g., critical reproductive time or injury or death for any species, the use NMFS considers PTS to fall under the location, migration), as well as the of mitigation measures, and the short injury category (Level A Harassment). number and nature of estimated Level A duration of the activities, 86 FWS’s There are different degrees of PTS harassment takes, the number of specified activities are not likely to ranging from slight/mild to moderate estimated mortalities, and effects on cause long-term behavioral disturbance, and from severe to profound. Profound habitat. serious injury, or death. The takes from PTS or the complete loss of the ability To avoid repetition, the discussion Level B harassment would be due to to hear in one or both ears is commonly below applies to all the species listed in behavioral disturbance and TTS. The referred to as deafness. In the case of Table 7 for which we propose to takes from Level A harassment would be authorizing Level A harassment, NMFS authorize incidental take for 86 FWS’s due to PTS. We anticipate that any PTS has estimated that one dwarf sperm activities. incurred would be in the form of only whale could experience permanent In making a negligible impact a small degree of PTS and not total threshold shifts of hearing sensitivity determination, we consider: deafness. (PTS). While animals may be impacted in • The number of anticipated injuries, the immediate vicinity of the activity, serious injuries, or mortalities; Negligible Impact Analysis and because of the short duration of the • Determinations The number, nature, and intensity, actual individual explosions themselves NMFS has defined ‘‘negligible and duration of Level B harassment; (versus continual sound source impact’’ in 50 CFR 216.103 as ‘‘. . . an • The context in which the takes operation) combined with the short impact resulting from the specified occur (e.g., impacts to areas of duration of the LRS WSEP operations, activity that cannot be reasonably significance, impacts to local NMFS has determined that there will expected to, and is not reasonably likely populations, and cumulative impacts not be a substantial impact on marine to, adversely affect the species or stock when taking into account successive/ mammals or on the normal functioning through effects on annual rates of contemporaneous actions when added of the nearshore or offshore waters off recruitment or survival.’’ A negligible to baseline data); Kauai and its ecosystems. We do not impact finding is based on the lack of • The status of stock or species of expect that the planned activity would likely adverse effects on annual rates of marine mammals (i.e., depleted, not impact rates of recruitment or survival recruitment or survival (i.e., population- depleted, decreasing, increasing, stable, of marine mammals since we do not level effects). An estimate of the number impact relative to the size of the expect mortality (which would remove of Level B harassment takes alone is not population); individuals from the population) or
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serious injury to occur. In addition, the these activities will not have a 1. NMFS Stock Assessment planned activity would not occur in significant effect on the human Prioritization tool application to areas (and/or times) of significance for environment and signed a Finding of No selected South Atlantic stocks. the marine mammal populations Significant Impact (FONSI) in 2. Receive an update on Southeast potentially affected by the exercises September 2016. Data, Assessment and Review (SEDAR) (e.g., feeding or resting areas, activities. reproductive areas), and the activities Authorization 3. Receive an update on 2015 would only occur in a small part of their As a result of these determinations, Landings, Annual Catch Limits (ACLs), overall range, so the impact of any NMFS has issued an IHA to 86 FWS for Acceptable Biological Catches (ABCs) potential temporary displacement conducting LRS WSEP activities, for a and Accountability Measures (AMs). would be negligible and animals would period of one year from the date of 4. Discuss modifications to the ABC be expected to return to the area after issuance, provided the previously Control Rule. the cessations of activities. Although the mentioned mitigation, monitoring, and 5. Further consider the SEDAR stock planned activity could result in Level A reporting requirements are incorporated. assessment update and fishing level (PTS only) and Level B (behavioral recommendations for Golden Tilefish. Dated: September 27, 2016. 6. Review Snapper Grouper disturbance and TTS) harassment of Donna S. Wieting, marine mammals, the level of Amendment 43, including Red Snapper Director, Office of Protected Resources, reference points, consider fishing level harassment is not anticipated to impact National Marine Fisheries Service. rates of recruitment or survival of recommendations, and reliability of marine mammals because the number of [FR Doc. 2016–23725 Filed 9–30–16; 8:45 am] NOAA Fisheries’ Marine Recreational exposed animals is expected to be low BILLING CODE 3510–22–P Information Program estimates. 7. Review a study on Black Sea Bass due to the short-term (i.e., four hours a commercial pot mesh size. day or less on one day) and site-specific DEPARTMENT OF COMMERCE 8. Review the draft Council nature of the activity. We do not management analysis review process. anticipate that the effects would be National Oceanic and Atmospheric 9. Consider fishing level detrimental to rates of recruitment and Administration recommendations for Spiny Lobster. survival because we do not expect 10. Review Snapper Grouper serious or extended behavioral RIN 0648–XE923 Amendment 41 for Mutton Snapper. responses that would result in energetic 11. Discuss proposed topics for the effects at the level to impact fitness. Fisheries of the South Atlantic; South next National SSC meeting. Based on the analysis contained Atlantic Fishery Management Council; 12. Receive an update on the herein of the likely effects of the Public Meeting Council’s work plan and current specified activity on marine mammals AGENCY: National Marine Fisheries amendments. and their habitat, and taking into 13. Discuss revisions to the SSC Service (NMFS), National Oceanic and consideration the implementation of the Public Comment Policy. Atmospheric Administration (NOAA), mitigation and monitoring measures, Although non-emergency issues not Commerce. and the short duration of the activities, contained in this agenda may come NMFS finds that 86 FWS’s LRS WSEP ACTION: Notice of a public meeting. before this group for discussion, those issues may not be the subject of formal operations will result in the incidental SUMMARY: The South Atlantic Fishery action during this meeting. Action will take of marine mammals, by Level A Management Council (Council) will be restricted to those issues specifically and Level B harassment, and that the hold a meeting of its Scientific and identified in this notice and any issues taking from the LRS WSEP exercises Statistical Committee (SSC). will have a negligible impact on the arising after publication of this notice affected species or stocks. DATES: The SSC will meet 1:30 p.m. to that require emergency action under 5:30 p.m., Tuesday, October 18, 2016; section 305(c) of the Magnuson-Stevens Impact on Availability of Affected 8:30 a.m. to 5:30 p.m., Wednesday, Fishery Conservation and Management Species or Stock for Taking for October 19, 2016; and 8:30 a.m. to 3 Act, provided the public has been Subsistence Uses p.m., Thursday, October 20, 2016. notified of the intent to take final action There are no relevant subsistence uses ADDRESSES: The meeting will be held at to address the emergency. of marine mammals implicated by this the Charleston Marriott Hotel, 170 Written comment on SSC agenda action. Therefore, NMFS has Lockwood Blvd., Charleston, SC 29403; topics is to be distributed to the determined that the total taking of phone: (843) 723–3000 or (800) 968– Committee through the Council office. affected species or stocks would not 3569. Written comment to be considered by have an unmitigable adverse impact on Council address: South Atlantic the SSC shall be provided to the Council the availability of such species or stocks Fishery Management Council, 4055 office no later than one week prior to an for taking for subsistence purposes. Faber Place Drive, Suite 201, N. SSC meeting. The deadline for Charleston, SC 29405. submission of written comment is 12 Endangered Species Act (ESA) FOR FURTHER INFORMATION CONTACT: Kim p.m. Tuesday, October 11, 2016. Two No marine mammal species listed Iverson, Public Information Officer, opportunities for comment on agenda under the ESA are expected to be 4055 Faber Place Drive, Suite 201, North items will be provided during the SSC affected by these activities. Therefore, Charleston, SC 29405; phone: (843) 571– meeting and noted on the agenda. The NMFS has determined that a section 7 4366 or toll free (866) SAFMC–10; fax: first will be at the beginning of the consultation under the ESA is not (843) 769–4520; email: kim.iverson@ meeting, and the second near the required. safmc.net. conclusion, when the SSC reviews its recommendations. National Environmental Policy Act SUPPLEMENTARY INFORMATION: The (NEPA) following agenda items will be Special Accommodations NMFS prepared an EA in accordance addressed by the SSC during this This meeting is accessible to people with the NEPA. NMFS determined that meeting: with disabilities. Requests for auxiliary
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aids should be directed to the SAFMC subject of formal action during the above-named applicant. The requested office (see ADDRESSES) at least 10 meeting. Action will be restricted to permit has been issued under the business days prior to the meeting. those issues specifically listed in this authority of the Marine Mammal Note: The times and sequence document and any issues arising after Protection Act of 1972, as amended (16 specified in this agenda are subject to publication of this document that U.S.C. 1361 et seq.) and the regulations change. require emergency action under section governing the taking and importing of Authority: 16 U.S.C. 1801 et seq. 305(c) of the Magnuson-Stevens Fishery marine mammals (50 CFR part 216). Conservation and Management Act, Permit No. 20481 authorizes filming Dated: September 28, 2016. provided the public has been notified of California sea lions along the California Tracey L. Thompson, the intent to take final action to address coast and offshore from Point An˜ o Acting Deputy Director, Office of Sustainable the emergency. Nuevo south to the Channel Islands. Up Fisheries, National Marine Fisheries Service. to 1000 California sea lions may be Special Accommodations [FR Doc. 2016–23802 Filed 9–30–16; 8:45 am] approached for filming from land, BILLING CODE 3510–22–P The meeting is physically accessible vessel, and underwater (snorkelers or to people with disabilities. Requests for scuba divers). In addition, up to1000 sign language interpretation or other long-beaked common dolphins DEPARTMENT OF COMMERCE auxiliary aids should be directed to Mr. (Delphinus capensis) and 1000 short- Kris Kleinschmidt at (503) 820–2425 at beaked common dolphins (D. delphis) National Oceanic and Atmospheric least 10 business days prior to the may be incidentally harassed and filmed Administration meeting date. during operations. The permit expires RIN 0648–XE920 Authority: 16 U.S.C. 1801 et seq. on August 31, 2017. In compliance with the National Dated: September 28, 2016. Pacific Fishery Management Council; Environmental Policy Act of 1969 (42 Public Meeting Tracey L. Thompson, U.S.C. 4321 et seq.), a final Acting Deputy Director, Office of Sustainable determination has been made that the AGENCY: National Marine Fisheries Fisheries, National Marine Fisheries Service. activity proposed is categorically Service (NMFS), National Oceanic and [FR Doc. 2016–23801 Filed 9–30–16; 8:45 am] excluded from the requirement to Atmospheric Administration (NOAA), BILLING CODE 3510–22–P prepare an environmental assessment or Commerce. environmental impact statement. ACTION: Notice; public meeting. DEPARTMENT OF COMMERCE Dated: September 27, 2016. SUMMARY: The Pacific Fishery Julia Harrison, Management Council’s (Council) National Oceanic and Atmospheric Chief, Permits and Conservation Division, Salmon Subcommittee of the Scientific Administration Office of Protected Resources, National Marine Fisheries Service. and Statistical Committee will hold a RIN 0648–XE664 joint methodology review meeting with [FR Doc. 2016–23723 Filed 9–30–16; 8:45 am] the Salmon Technical Team. Marine Mammals; File No. 20481 BILLING CODE 3510–22–P DATES: The meeting will be held on AGENCY: National Marine Fisheries Tuesday, October 18, 2016, from 1 p.m. Service (NMFS), National Oceanic and until business for the day is complete. DEPARTMENT OF COMMERCE Atmospheric Administration (NOAA), ADDRESSES: The meeting will be held in Commerce. National Oceanic and Atmospheric the Large Conference Room of the ACTION: Notice; issuance of permit. Administration Pacific Council. RIN 0648–XE918 Council address: Pacific Council, SUMMARY: Notice is hereby given that a 7700 NE Ambassador Place, Suite 101, permit has been issued to the British New England Fishery Management Portland, OR 97220–1384. Broadcasting Company (BBC) Natural Council; Public Meeting FOR FURTHER INFORMATION CONTACT: Mr. History Unit, 23 Whiteladies Road, Mike Burner, Pacific Council; (503) Bristol BS8 2LR, United Kingdom, AGENCY: National Marine Fisheries 820–2414. commercial and educational Service (NMFS), National Oceanic and SUPPLEMENTARY INFORMATION: The photography on California sea lions Atmospheric Administration (NOAA), purpose of the methodology review (Zalophus californianus). Commerce. meeting is to discuss and review ADDRESSES: The permit and related ACTION: Notice; public meeting. proposed changes to analytical methods documents are available for review SUMMARY: The New England Fishery used in salmon management. upon written request or by appointment Management Council (Council) is Recommendations from the in the Permits and Conservation scheduling a public meeting of its methodology review meeting will be Division, Office of Protected Resources, Scientific & Statistical Committee to presented at the November 13–21, 2016 NMFS, 1315 East-West Highway, Room consider actions affecting New England Council meeting in Garden Grove, CA 13705, Silver Spring, MD 20910; phone fisheries in the exclusive economic zone where the Council is scheduled to take (301) 427–8401; fax (301) 713–0376. (EEZ). Recommendations from this final action on the proposals. One topic, FOR FURTHER INFORMATION CONTACT: Rosa group will be brought to the full Council a forecast model for Sacramento River Gonza´lez or Jennifer Skidmore, (301) for formal consideration and action, if winter Chinook, was adopted by the 427–8401. appropriate. Council at their September 12–20, 2016 SUPPLEMENTARY INFORMATION: On July meeting in Boise, ID for consideration at 25, 2016, notice was published in the DATES: This meeting will be held on the methodology review meeting. Federal Register (81 FR 48394) that a Tuesday, October 18, 2016, beginning at Although non-emergency issues not request for a permit to commercial and 9 a.m. contained in the meeting agenda may be educational photography on California ADDRESSES: The meeting will be held at discussed, those issues may not be the sea lions had been submitted by the the Hilton Garden Inn, Boston Logan,
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100 Boardman Street, Boston, MA DEPARTMENT OF COMMERCE for subsistence uses (where relevant). 02128; phone: (617) 567–6789. The National Marine Fisheries Service National Oceanic and Atmospheric Council address: New England (NMFS) also must set forth the Administration Fishery Management Council, 50 Water permissible methods of taking; other means of effecting the least practicable Street, Mill 2, Newburyport, MA 01950. Proposed Information Collection; adverse impact on the species or stock FOR FURTHER INFORMATION CONTACT: Comment Request; Applications and and its habitat (mitigation); and Thomas A. Nies, Executive Director, Reporting Requirements for the requirements pertaining to the Incidental Take of Marine Mammals by New England Fishery Management monitoring and reporting of such taking. Specified Activities (Other Than Council; telephone: (978) 465–0492. Issuance of an incidental take Commercial Fishing Operations) Under authorization (Authorization) under SUPPLEMENTARY INFORMATION: the Marine Mammal Protection Act section 101(a)(5)(A) or 101(a)(5)(D) of Agenda AGENCY: National Oceanic and the MMPA requires three sets of Atmospheric Administration (NOAA), information collection: (1) A complete The committee will review Commerce. application for an Authorization, as set forth in our implementing regulations at information provided by the Council’s ACTION: Notice. Scallop Plan Development Team (PDT) 50 CFR 216.104, which provides the and recommend the overfishing levels SUMMARY: The Department of information necessary for us to make the (OFLs) and acceptable biological catches Commerce, as part of its continuing necessary statutory determinations, (ABCs) for Atlantic sea scallops for effort to reduce paperwork and including estimates of take and an fishing years 2016 and 2017. They will respondent burden, invites the general assessment of impacts on the affected species and stocks; (2) information discuss other issues related to public and other Federal agencies to relating to required monitoring; and (3) improving control rules and ABC comment on proposed and/or continuing information collections, as information related to required recommendations for groundfish and required by the Paperwork Reduction reporting. These collections of other stocks, including ecosystem Act of 1995. information enable us to: (1) Evaluate information, how to deal with DATES: Written comments must be the proposed activity’s impact on information from multiple stock submitted on or before December 2, marine mammals; (2) arrive at the assessment models and other 2016. appropriate determinations required by information. Other business will be the MMPA and other applicable laws discussed as needed. ADDRESSES: Direct all written comments prior to issuing the authorization; and to Jennifer Jessup, Departmental Although non-emergency issues not (3) monitor impacts of activities for Paperwork Clearance Officer, which we have issued Authorizations to contained in this agenda may come Department of Commerce, Room 6616, before this group for discussion, those determine if our predictions regarding 14th and Constitution Avenue NW., impacts on marine mammals remain issues may not be the subject of formal Washington, DC 20230 (or via the action during this meeting. Action will valid. Internet at [email protected]). On August 4, 2016, NMFS published be restricted to those issues specifically FOR FURTHER INFORMATION CONTACT: a Federal Register Notice (81 FR 51694) listed in this notice and any issues Requests for additional information or notifying the public of its new arising after publication of this notice copies of the information collection Technical Guidance for Assessing the that require emergency action under instrument and instructions should be Effects of Anthropogenic Sound on section 305(c) of the Magnuson-Stevens directed to Dale Youngkin, (301) 427– Marine Mammal Hearing (Guidance). Act, provided the public has been 8401 or [email protected]. This guidance established new notified of the Council’s intent to take SUPPLEMENTARY INFORMATION: thresholds for predicting auditory final action to address the emergency. injury, which equates to Level A I. Abstract harassment (a type of take) under the Special Accommodations This request is for an extension of a MMPA. In that Federal Register Notice This meeting is physically accessible currently approved information we stated that we would consider the to people with disabilities. Requests for collection. effect of the Guidance, specifically The Marine Mammal Protection Act sign language interpretation or other whether a revision in the burden hour of 1972 (MMPA; 16 U.S.C. 1361 et seq.) auxiliary aids should be directed to estimates is appropriate, and invite prohibits the ‘‘take’’ of marine mammals Thomas A. Nies, Executive Director, at public comment on its assessment. unless otherwise authorized or Although NMFS has updated the (978) 465–0492, at least 5 days prior to exempted by law. Among the provisions acoustic thresholds and these changes the meeting date. that allow for lawful take of marine may necessitate new methodologies for Authority: 16 U.S.C. 1801 et seq. mammals, sections 101(a)(5)(A) and (D) calculating impacts, NMFS does not Dated: September 28, 2016. of the MMPA direct the Secretary of anticipate that the new guidance will Commerce to allow, upon request, the substantially add to the overall burden Tracey L. Thompson, incidental, but not intentional, taking of to applicants for incidental take Acting Deputy Director, Office of Sustainable small numbers of marine mammals by authorizations. This is due to the fact Fisheries, National Marine Fisheries Service. U.S. citizens who engage in a specified that, recognizing that action proponents [FR Doc. 2016–23800 Filed 9–30–16; 8:45 am] activity (other than commercial fishing), have varying abilities to model and BILLING CODE 3510–22–P within a specified geographical region estimate exposure, and that the new if, after notice and opportunity for guidance may be more complex than public comment, we find that the taking some action proponents are able to will have a negligible impact on the incorporate, NMFS provided an affected species or stock(s) and will not alternative methodology with an have an unmitigable adverse impact on associated spreadsheet for use as an aid. the availability of the species or stock(s) Action proponents already using more
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complex modeling capabilities would use of automated collection techniques of problems accessing these documents, simply modify their modeling efforts or other forms of information please call the contact listed above (see using the new criteria, and action technology. FOR FURTHER INFORMATION CONTACT). proponents without the ability to do Comments submitted in response to Background more complex modeling may opt to use this notice will be summarized and/or the alternative methodology included in the request for OMB Sections 101(a)(5)(A) and (D) of the spreadsheet. Therefore, the estimated approval of this information collection; MMPA (16 U.S.C. 1361 et seq.) direct time per response is not affected by the they also will become a matter of public the Secretary of Commerce to allow, guidance. record. upon request by U.S. citizens who engage in a specified activity (other than Dated: September 27, 2016. II. Method of Collection commercial fishing) within a specified Sarah Brabson, Respondents have a choice of area, the incidental, but not intentional, submitting either electronic or paper NOAA PRA Clearance Officer. taking of small numbers of marine forms. Methods of submittal include [FR Doc. 2016–23743 Filed 9–30–16; 8:45 am] mammals, providing that certain email, mail, overnight delivery service, BILLING CODE 3510–22–P findings are made and the necessary and/or facsimile transmissions. prescriptions are established. The incidental taking of small III. Data DEPARTMENT OF COMMERCE numbers of marine mammals may be OMB Control Number: 0648–0151. allowed only if NMFS (through Form Number: None. National Oceanic and Atmospheric authority delegated by the Secretary) Type of Review: Regular submission Administration finds that the total taking by the (extension of a currently approved RIN 0648–XE297 specified activity during the specified information collection). time period will (i) have a negligible Affected Public: Not-for-profit Takes of Marine Mammals Incidental to impact on the species or stock(s) and (ii) institutions; state, local, or tribal Specified Activities; Taking Marine not have an unmitigable adverse impact governments; businesses or other for- Mammals Incidental to a Pier on the availability of the species or profit organizations. Construction and Support Facilities stock(s) for subsistence uses (where Estimated Number of Respondents: Project, Port Angeles, WA relevant). Further, the permissible 95. methods of taking and requirements Estimated Time per Response: 255 AGENCY: National Marine Fisheries pertaining to the mitigation, monitoring hours for an Incidental Harassment Service (NMFS), National Oceanic and and reporting of such taking must be set Authorization (IHA) application; 11 Atmospheric Administration (NOAA), forth, either in specific regulations or in hours for an IHA interim report (if Commerce. an authorization. applicable); 115 hours for an IHA draft ACTION: Notice; issuance of an incidental The allowance of such incidental annual report; 14 hours for an IHA final harassment authorization. taking under section 101(a)(5)(A), by annual report (if applicable); 1,100 harassment, serious injury, death, or a SUMMARY: In accordance with the hours for the initial preparation of an combination thereof, requires that regulations implementing the Marine regulations be established. application for new regulations; 70 Mammal Protection Act (MMPA) as hours for an annual Letter of Subsequently, a Letter of Authorization amended, notification is hereby given may be issued pursuant to the Authorization (LOA) application; 220 that we have issued an incidental hours for an LOA draft annual report; 65 prescriptions established in such harassment authorization (IHA) to the regulations, providing that the level of hours for a LOA final annual report (if U.S. Navy (Navy) to incidentally harass applicable); 625 hours for a LOA draft taking will be consistent with the marine mammals during construction findings made for the total taking comprehensive report; and 300 hours activities associated with the Pier for an LOA final comprehensive report. allowable under the specific regulations. Construction and Support Facilities Under section 101(a)(5)(D), NMFS may Response times will vary for the public Project at Port Angeles, WA. based upon the complexity of the authorize such incidental taking by requested action. DATES: This authorization is effective harassment only, for periods of not more Estimated Total Annual Burden from November 1, 2016 to October 31, than one year, pursuant to requirements Hours: 14,109. 2017. and conditions contained within an Estimated Total Annual Cost to FOR FURTHER INFORMATION CONTACT: IHA. The establishment of prescriptions Public: $360 in recordkeeping/reporting Laura McCue, Office of Protected through either specific regulations or an costs and $0 in capital costs. Resources, NMFS, (301) 427–8401. authorization requires notice and SUPPLEMENTARY INFORMATION: opportunity for public comment. IV. Request for Comments NMFS has defined ‘‘negligible Comments are invited on: (a) Whether Availability impact’’ in 50 CFR 216.103 as ‘‘. . . an the proposed collection of information An electronic copy of the Navy’s impact resulting from the specified is necessary for the proper performance application and supporting documents, activity that cannot be reasonably of the functions of the agency, including as well as a list of the references cited expected to, and is not reasonably likely whether the information shall have in this document, may be obtained by to, adversely affect the species or stock practical utility; (b) the accuracy of the visiting the Internet at: through effects on annual rates of agency’s estimate of the burden www.nmfs.noaa.gov/pr/permits/ recruitment or survival.’’ Except with (including hours and cost) of the incidental.htm. A memorandum respect to certain activities not pertinent proposed collection of information; (c) describing our adoption of the Navy’s here, section 3(18) of the MMPA defines ways to enhance the quality, utility, and Environmental Assessment (2016) and ‘‘harassment’’ as: ‘‘. . . any act of clarity of the information to be our associated Finding of No Significant pursuit, torment, or annoyance which (i) collected; and (d) ways to minimize the Impact, prepared pursuant to the has the potential to injure a marine burden of the collection of information National Environmental Policy Act, are mammal or marine mammal stock in the on respondents, including through the also available at the same site. In case wild; or (ii) has the potential to disturb
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a marine mammal or marine mammal the need to consider this new best waters of northern Washington by stock in the wild by causing disruption available science with the fact that some establishing a Transit Protection System of behavioral patterns, including, but applicants have already committed time (TPS) that relies on the use of multiple not limited to, migration, breathing, and resources to the development of escort vessels. The purpose of the Pier nursing, breeding, feeding, or analyses based on our previous and Support Facilities for TPS project is sheltering.’’ The former is termed Level thresholds and have constraints that to provide a staging location for TPS A harassment and the latter is termed preclude the recalculation of take vessels and crews that escort incoming Level B harassment. estimates, as well as consideration of and outgoing SSBNs between dive/ surface points in the Strait of Juan de Summary of Request where the action is in the agency’s decision-making pipeline. In that Fuca and Naval Base (NAVBASE) Kitsap On September 11, 2015, we received Notice, we included a non-exhaustive Bangor. a request from the Navy for list of factors that would inform the Specific activities that can be authorization to take marine mammals most appropriate approach for expected to result in the incidental incidental to pile driving associated considering the new Guidance, taking of marine mammals are limited to with the construction of a pier and including: the scope of effects; how far the driving of steel piles used for support facilities at the U.S. Coast in the process the applicant has installation of the trestle/fixed pier/ Guard (USCG) Air Station/Sector Field progressed; when the authorization is floating docks, and the removal of Office Port Angeles (AIRSTA/SFO Port needed; the cost and complexity of the temporary indicator piles. Angeles), located in Port Angeles Harbor analysis; and the degree to which the Vibratory pile driving is the preferred on the Ediz Hook peninsula, Port guidance is expected to affect our method for production piles and would Angeles. The Navy submitted a revised analysis. be the initial starting point for each version of the request on February 19, In this case, the Navy initially installation; however, impact pile 2016, which we deemed adequate and submitted a request for authorization on driving methods may be necessary complete on February 22, 2016. September 11, 2015, followed by an based on substrate conditions. Once a The Navy will initiate this multi-year adequate and complete request pile hits ‘‘refusal,’’ which is where hard project, lasting up to 18 months, determination on February 22, 2016. solid or dense substrate (e.g., gravel, involving impact and vibratory pile The Navy requires issuance of the boulders) prevents further pile driving conducted within the approved authorization in order to ensure that this movement by vibratory methods, impact in-water work windows. In water work critical national security infrastructure pile driving is used to drive the pile to is expected to begin on November 1, project is able to meet its necessary start depth. 2016 in order to minimize impacts to an date. The Guidance indicates that there All piles will be driven with a Atlantic Salmon net pen farm located in vibratory hammer for their initial is a greater likelihood of auditory injury close proximity to the project area. In embedment depths, while select piles for Phocid pinnipeds (i.e., harbor seals) water work will conclude on February may be finished with an impact hammer and for high-frequency cetaceans (i.e., 15, 2017, and begin again from July 16 for proofing, as necessary. There will be harbor porpoise) than was considered in to October 31, 2017. If in-water work no concurrent pile driving or multiple our notice of proposed authorization. In will extend beyond the effective dates of hammers operating simultaneously. order to address this increased the IHA, a second IHA application will Proofing involves striking a driven pile likelihood, we increased the shutdown be submitted by the Navy. with an impact hammer to verify that it zones required for harbor seals to 100 m The use of both vibratory and impact provides the required load-bearing and for harbor porpoise to 150 m. With pile driving is expected to produce capacity, as indicated by the number of these changes, and in addition to other underwater sound at levels that have the hammer blows per foot of pile required mitigation measures, the Navy potential to result in behavioral advancement. Sound attenuation has a robust monitoring and mitigation harassment of marine mammals. Take, measures (i.e., bubble curtain) would be program that we believe is effective in by Level B Harassment, may impact used during all impact hammer minimizing impacts to the affected individuals of five species of marine operations. mammals (harbor porpoise (Phocoena species or stocks. phocoena), harbor seal (Phoca vitulina), In addition, to account for the Dates and Duration Northern elephant seal (Mirounga potential that not all harbor seals may Under the action, in-water angustirostris), Steller sea lion be observed, we authorize the taking by construction is anticipated to begin in (Eumatopias jubatus), and California sea Level A harassment of one harbor seal 2016 and require two in-water work lion (Zalophus californianus)). As the per day of projected construction window seasons. The allowable season next paragraph explains, we have also activity. In this analysis, we considered for in-water work, including pile determined based on the best available the potential for small numbers of driving, at AIRSTA/SFO Port Angeles is information that there also may be a harbor seals to incur auditory injury and November 1, 2016 through February 15, small number of take by Level A found that it would not impact our 2017, and July 16, 2017 through October Harassment of harbor seals. preliminary determinations. In 31, 2017, a window established by the On August 4, 2016, NMFS released its summary, we have considered the new Washington Department of Fish and Technical Guidance for Assessing the Guidance and believe that the Wildlife in coordination with NMFS Effects of Anthropogenic Sound on likelihood of injury is adequately and the U.S. Fish and Wildlife Service Marine Mammal Hearing (Guidance). addressed in the analysis contained (USFWS) to protect juvenile salmon This new guidance established new herein and appropriate protective (Oncorhynchus spp.) and bull trout thresholds for predicting auditory measures are in place in the IHA. (Salvelinus confluentus). Overall, a injury, which equates to Level A Description of the Specified Activity maximum of 75 days of pile driving are harassment under the MMPA. In the anticipated within these in-water work August 4, 2016, Federal Register Notice Overview windows. All in-water construction (81 FR 51694), NMFS explained the The Navy has increased security for activities will occur during daylight approach it would take during a in-transit Fleet Ballistic Missile hours (sunrise to sunset) except from transition period, wherein we balance Submarines (SSBNs) in inland marine July 16 to September 23 when impact
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pile driving/removal will only occur fixed pier via a catwalk, and will be TABLE 1—SUMMARY OF PILES RE- starting 2 hours after sunrise and ending supported by 87 steel piles and result in QUIRED FOR PIER CONSTRUCTION— 2 hours before sunset, to protect 10,025 ft2 (931 m2) of permanent Continued foraging marbled murrelets (an overwater coverage. The floating docks [in total] Endangered Species Act (ESA)-listed including brows will be supported by 21 2 bird under the jurisdiction of USFWS) steel piles and result in 5,380 ft (500 Feature Quantity and size during nesting season (April1- m2) of permanent overwater coverage. September 23). Other construction (not The trestle will provide vehicle and Floating docks ...... 24-in: 3. in-water) may occur between 7 a.m. and pedestrian access to the pier and convey 30-in: 6. 10 p.m., year-round. utilities to the pier. It will be installed 36-in: 12. between +7 ft (2 m) MLLW and ¥45 ft Maximum pile driving 75 days (under one- Specific Geographic Region (¥14 m) MLLW. The trestle will be duration. year IHA). AIRSTA/SFO Port Angeles is located approximately 355 feet long (108 m) * Pile installation would include the installa- in the Strait of Juan de Fuca, long and 24 feet (7 m) wide and tion and removal of 80 temporary indicator approximately 62 miles (100 km) east of constructed of precast concrete. The piles, installation of 60 permanent sheet piles, Cape Flattery, and 63 miles (102 km) trestle will be designed to support a 50 and installation of 144 permanent steel piles. northwest of Seattle, Washington on the pound per square foot (psf) (244 Pile installation will utilize vibratory Olympic Peninsula (see Figure 1–1 in kilograms (kg) per square m) live load or pile drivers to the greatest extent the Navy’s application). The Strait of a utility trailer with a total load of 3,000 possible, and the Navy anticipates that Juan de Fuca is a wide waterway pounds (1,360 kg), and will be most piles will be able to be vibratory stretching from the Pacific Ocean to the supported by 36 steel piles and result in driven to within several feet of the Salish Sea. The strait is 95 miles (153 2 2 10,060 ft (935 m ) of permanent required depth. Pile drivability is, to a km) long, 15.5 miles (25 km) wide, and overwater coverage. large degree, a function of soil has depths ranging from 180 m to 250 For the entire project, pile installation conditions and the type of pile hammer. m on the pacific coast and 55 m at the will include the installation and Most piles should be able to be driven sill. Please see Section 2 of the Navy’s removal of 80 temporary indicator piles, with a vibratory hammer to proper application for detailed information installation of 60 permanent sheet piles, embedment depth. However, difficulties about the specific geographic region, and installation of 144 permanent steel during pile driving may be encountered including physical and oceanographic piles (Table 1). The indicator piles are as a result of obstructions, such as rocks characteristics. required to determine if required or boulders, which may exist Detailed Description of Activities bearing capacities will be achieved with throughout the project area. If difficult the production piles, and to assess driving conditions occur, increased The purpose of the Pier and Support whether the correct vibratory and usage of an impact hammer will occur. Facilities for TPS project (the project) is impact hammers are being used. The to provide a staging location for TPS process will be to vibrate the piles to Pile production rates are dependent vessels and crews that escort incoming within 5 ft (1.5 m) of the target upon required embedment depths, the and outgoing SSBNs between dive/ embedment depth required for the potential for encountering difficult surface points in the Strait of Juan de project, let the piles rest in place for a driving conditions, and the ability to Fuca and Naval Base (NAVBASE) Kitsap day, and then impact drive the piles the drive multiple piles without a need to Bangor. The Navy has increased security final 5 ft (1.5 m). If the indicator piles relocate the driving rig. If difficult for in-transit Fleet Ballistic Missile cannot be successfully vibrated in, then subsurface driving conditions (e.g., Submarines (SSBNs) in inland marine a larger hammer will be used for the cobble/boulder zones) are encountered waters of northern Washington by production piles. The impact driving that cause refusal with the vibratory establishing a Transit Protection System will also provide an indication of equipment, it may be necessary to use (TPS) that relies on the use of multiple bearing capacity via proofing. Each an impact hammer to drive some piles escort vessels. Construction of the pier indicator pile would then be vibratory for the remaining portion of their and support facilities is grouped into extracted (removed) using a vibratory required depth. The worst-case scenario three broad categories: (1) Site Work hammer. is that a pile would be driven for its Activities (2) Construction of Upland A maximum of 75 days of pile driving entire length using an impact hammer. Facilities (Alert Forces Facility (AFF) may occur. Table 1 summarizes the Given the uncertainty regarding the and Ready Service Armory (RSA)), and number and nature of piles required for types and quantities of boulders or (3) Construction of Trestle/Fixed Pier/ the entire project. cobbles that may be encountered, and Floating Docks. the depth at which they may be The trestle, fixed pier, and floating TABLE 1—SUMMARY OF PILES encountered, the number of strikes docks will result in a permanent REQUIRED FOR PIER CONSTRUCTION necessary to drive a pile its entire length increase in overwater coverage of 25,465 would vary. All piles driven or struck [in total] square feet (ft2) (2,366 square meters with an impact hammer would be 2 2 2 (m )). An estimated 745 ft (69 m ) of Feature Quantity and size surrounded by a bubble curtain over the benthic seafloor will be displaced from full water column to minimize in-water the installation of the 144 permanent Total number of in- Up to 284.* sound. Pile production rate (number of steel piles. The fixed pier will lie water piles. piles driven per day) is affected by approximately 354 ft (108 m) offshore at Indicator temporary ... 24-in: 80. many factors: Size, type (vertical versus water depths between ¥40 ft (¥12 m) Sheet pile wall ...... PZC13 Steel sheet angled), and location of piles; weather; and ¥63 ft (19 m) mean lower low piles: 60. number of driver rigs operating; Trestle ...... 18-in: 16. water (MLLW). It will be constructed of 24-in: 12. equipment reliability; geotechnical precast concrete and be approximately 36-in: 8. (subsurface) conditions; and work 160 feet long and 42 feet wide (49 m by Fixed pier piles ...... 24-in: 28. stoppages for security or environmental 13 m). The fixed pier will have two 30-in: 49. reasons (such as presence of marine mooring dolphins that connect to the 36-in: 10. mammals).
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Comments and Responses porpoise (Phocoena phocoena), harbor occurrence in the project area during the We published a notice of receipt of seal (Phoca vitulina), Northern elephant period of validity for this IHA. the Navy’s application and proposed seal (Mirounga angustirostris), Steller We have reviewed the Navy’s detailed IHA in the Federal Register on April 4, sea lion (Eumatopias jubatus), and species descriptions, including life 2016 (81 FR 19326). We received one California sea lion (Zalophus history information, for accuracy and comment, a letter from the Marine californianus). Harbor seals occur year completeness and refer the reader to Mammal Commission concurring with round throughout the nearshore inland Sections 3 and 4 of the Navy’s NMFS’s preliminary findings. waters of Washington. Harbor seals are application instead of reprinting the Comment: The Commission expected to occur year round in Port information here. Please also refer to recommends the issuance of the IHA, Angeles Harbor, with a nearby haul-out NMFS’ Web site (www.nmfs.noaa.gov/ subject to the inclusion of the proposed site on a log boom located pr/species/mammals) for generalized mitigation, monitoring, and reporting approximately 1.7 miles (2.7 km) west species accounts and to the Navy’s measures. of the project site and another haul-out Marine Resource Assessment for the Response: We appreciate the site 1.3 miles (2.1 km) south of the Pacific Northwest, which documents Commission’s concurrence with our project. Steller sea lions and California and describes the marine resources that findings and appreciate their input and sea lions may occur in the area, but occur in Navy operating areas of the support. We look forward to working there are no site-specific surveys on Pacific Northwest, including Strait of with them on similar issues in the these species. Harbor porpoises and Juan de Fuca (DoN, 2006). The future. Northern elephant seal are rare through document is publicly available at the project area. The Dall’s porpoise www.navfac.navy.mil/products_and_ Description of Marine Mammals in the (Phocoenoides dalli dalli), humpback services/ev/products_and_services/ Area of the Specified Activity whale (Megaptera novaeangliae), minke marine_resources/marine_resource_ There are eleven marine mammal whale (Balaenoptera acutorostrata), assessments.html (accessed February 1, species with recorded occurrence in the gray whale (Eschrichtius robustus), 2016). We provided additional Strait of Juan de Fuca (Table 2), Pacific white-sided dolphin information for marine mammals with including seven cetaceans and four (Lagenorhynchus obliquidens), and potential for occurrence in the area of pinnipeds. Of these eleven species, only killer whales (Orcinus orca) are the specified activity in our Federal five are expected to have a reasonable extremely rare in Port Angeles Harbor, Register notice of proposed potential to be in the vicinity of the and we do not believe there is a authorization (April 4, 2016; 81 FR project site. These species are harbor reasonable likelihood of their 19326).
TABLE 2—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF AIRSTA/SFO PORT ANGELES
ESA/MMPA Stock abundance (CV, Relative occurrence in status; 3 Species Stock strategic Nmin, most recent PBR Strait of Juan de Fuca; abundance survey) 2 season of occurrence (Y/N) 1
Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Phocoenidae (porpoises)
Harbor porpoise ...... Washington inland waters 5 -; N 10,682 (0.38; 7,841; 2003) 63 Possible regular presence in the Strait of Juan de Fuca, but unlikely near PAH; year-round. Dall’s porpoise ...... CA/OR/WA ...... -; N 42,000 (0.33; 32,106; 257 Rare. 2008).
Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Delphinidae (dolphins)
Pacific white-sided dolphin CA/OR/WA ...... -; N 26,930 (0.28; 21,406; 171 Rare. 2008). Killer whale ...... West coast transient ...... -; N 243 (n/a; 243; 2009) ...... 2.4 Unlikely. Southern resident ...... E; S 78 (n/a; 78; 2014) ...... 0.14
Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Balaenopteridae
Humpback whale ...... CA/OR/WA ...... E; S 1,918 (0.03; 1,855; 2011) .. 11 Unlikely. Minke whale ...... CA/OR/WA ...... -; N 478 (1.36; 202; 2008) ...... 2 Unlikely.
Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Eschrichtiidae
Gray whale ...... Eastern N. Pacific ...... -; N 20,990 (0.05; 20,125; 624 Unlikely. 2011).
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TABLE 2—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF AIRSTA/SFO PORT ANGELES—Continued
ESA/MMPA Relative occurrence in status; Stock abundance (CV, , most recent PBR 3 Strait of Juan de Fuca; Species Stock strategic Nmin abundance survey) 2 season of occurrence (Y/N) 1
Order Carnivora—Superfamily Pinnipedia
Family Otariidae (eared seals and sea lions)
California sea lion ...... U.S...... -; N 296,750 (n/a; 153,337; 9,200 Seasonal/common; Fall to 2011). late spring (Aug to Jun). Steller sea lion ...... Eastern U.S...... -; S 60,131- 74,448 (n/a; 1,645 7 Seasonal/occasional; Fall 36,551; 2013) 6. to late spring (Sep to May).
Family Phocidae (earless seals)
Harbor seal 8 ...... Washington inland waters 5 -; N 11,036 (0.15; n/a; 1999) .... n/a Common; Year-round resi- dent. Northern elephant seal ...... California breeding stock ... -; N 179,000 (n/a; 81,368; 4,882 Seasonal/rare: Spring to 2010). late fall (Apr to Nov). 1 ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality ex- ceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any spe- cies or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge of the specie’s (or similar species’) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore. 3 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be re- moved from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). 4 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All values presented here are from the draft 2015 SARs (www.nmfs.noaa.gov/pr/sars/draft.htm) except harbor seals. See com- ment 8. 5 Abundance estimates for these stocks are greater than eight years old and are therefore not considered current. PBR is considered undeter- mined for these stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates and PBR values, as these represent the best available information for use in this document. 6 Best abundance is calculated as the product of pup counts and a factor based on the birth rate, sex and age structure, and growth rate of the population. A range is presented because the extrapolation factor varies depending on the vital rate parameter resulting in the growth rate (i.e., high fecundity or low juvenile mortality). 7 PBR is calculated for the U.S. portion of the stock only (excluding animals in British Columbia) and assumes that the stock is not within its OSP. If we assume that the stock is within its OSP, PBR for the U.S. portion increases to 2,069. 8 Values for harbor seal presented here are from the 2013 SAR.
Potential Effects of the Specified practical spreading loss to estimate Mitigation Monitoring and Shutdown for Activity on Marine Mammals and Their zones of influence (ZOI; see Estimated Pile Driving Habitat Take by Incidental Harassment); these values were used to develop mitigation The following measures will apply to Our Federal Register notice of the Navy’s mitigation through shutdown measures for pile driving activities at proposed authorization (April 4, 2016; and disturbance zones: 81 FR 19326) provides a general Port Angeles harbor. The ZOIs background on sound relevant to the effectively represent the mitigation zone Shutdown Zone—For all pile driving specified activity as well as a detailed that will be established around each pile activities, the Navy will establish a description of marine mammal hearing to prevent Level A harassment to marine shutdown zone intended to contain the and of the potential effects of these mammals, while providing estimates of area in which injury may occur. The construction activities on marine the areas within which Level B purpose of a shutdown zone is to define an area within which shutdown of mammals and their habitat. harassment might occur. In addition to activity will occur upon sighting of a the specific measures described later in Mitigation marine mammal (or in anticipation of an this section, the Navy will conduct In order to issue an IHA under section animal entering the defined area), thus briefings between construction 101(a)(5)(D) of the MMPA, NMFS must preventing injury of marine mammals. set forth the permissible methods of supervisors and crews, marine mammal During impact pile driving, the Navy taking pursuant to such activity, and monitoring team, and Navy staff prior to will implement a minimum shutdown other means of effecting the least the start of all pile driving activity, and zone of 10 m radius for all marine practicable impact on such species or when new personnel join the work, in mammals around all pile driving stock and its habitat, paying particular order to explain responsibilities, activity. Additionally, the Navy will attention to rookeries, mating grounds, communication procedures, marine implement a 100 m shutdown for harbor and areas of similar significance, and on mammal monitoring protocol, and seals and a 150 m shutdown for harbor the availability of such species or stock operational procedures. porpoises. These additional shutdown for taking for certain subsistence uses. zones were added to prevent injury Measurements from similar pile based off of NMFS’s new acoustic driving events were coupled with guidance. During vibratory driving, the
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shutdown zone will be 10 m distance Monitoring Protocols—Monitoring construction sound of marine mammals from the source for all animals. These will be conducted before, during, and observed within a defined shutdown precautionary measures are intended to after pile driving activities. In addition, zone; and marine mammal behavior; further reduce any possibility of observers shall record all incidents of and acoustic injury, as well as to account for marine mammal occurrence, regardless • Ability to communicate orally, by any undue reduction in the modeled of distance from activity, and shall radio or in person, with project zones stemming from the assumption of document any behavioral reactions in personnel to provide real-time 8 dB attenuation from use of a bubble concert with distance from piles being information on marine mammals curtain (see discussion later in this driven. Observations made outside the observed in the area as necessary. section). shutdown zone will not result in (2) Prior to the start of pile driving Disturbance Zone—Disturbance zones shutdown; that pile segment would be activity, the shutdown zone will be are the areas in which SPLs equal or completed without cessation, unless the monitored for fifteen minutes to ensure exceed 160 and 120 dB rms (for pulsed animal approaches or enters the that it is clear of marine mammals. Pile and non-pulsed continuous sound, shutdown zone, at which point all pile driving will only commence once respectively). Disturbance zones provide driving activities will be halted. observers have declared the shutdown utility for monitoring conducted for Monitoring will take place from fifteen zone clear of marine mammals; animals mitigation purposes (i.e., shutdown minutes prior to initiation through will be allowed to remain in the zone monitoring) by establishing thirty minutes post-completion of pile shutdown zone (i.e., must leave of their monitoring protocols for areas adjacent driving activities. Pile driving activities own volition) and their behavior will be to the shutdown zones. Monitoring of include the time to remove a single pile monitored and documented. The disturbance zones enables observers to or series of piles, as long as the time shutdown zone may only be declared be aware of and communicate the elapsed between uses of the pile driving clear, and pile driving started, when the presence of marine mammals in the equipment is no more than thirty entire shutdown zone is visible (i.e., project area but outside the shutdown minutes. Please see the Marine Mammal when not obscured by dark, rain, fog, zone and thus prepare for potential Monitoring Plan (available at etc.). In addition, if such conditions shutdowns of activity. However, the www.nmfs.noaa.gov/pr/permits/ should arise during impact pile driving primary purpose of disturbance zone incidental.htm), developed by the Navy that is already underway, the activity monitoring is for documenting incidents with our approval, for full details of the will be halted. of Level B harassment; disturbance zone monitoring protocols. (3) If a marine mammal approaches or monitoring is discussed in greater detail The following additional measures enters the shutdown zone during the later (see Monitoring and Reporting). apply to visual monitoring: course of pile driving operations, Nominal radial distances for (1) Monitoring will be conducted by activity will be halted and delayed until disturbance zones are shown in Table 3. qualified observers, who will be placed either the animal has voluntarily left Given the size of the disturbance zone at the best vantage point(s) practicable and been visually confirmed beyond the for vibratory pile driving, it is to monitor for marine mammals and shutdown zone or fifteen minutes have impossible to guarantee that all animals implement shutdown/delay procedures passed without re-detection of the will be observed or to make when applicable by calling for the animal. Monitoring will be conducted comprehensive observations of fine- shutdown to the hammer operator. throughout the time required to drive a scale behavioral reactions to sound, and Qualified observers are trained pile. only a portion of the zone will be biologists, with the following minimum Sound Attenuation Devices monitored. qualifications: In order to document observed • Visual acuity in both eyes Sound levels can be greatly reduced incidents of harassment, monitors (correction is permissible) sufficient for during impact pile driving using sound record all marine mammal observations, discernment of moving targets at the attenuation devices. There are several regardless of location. The observer’s water’s surface with ability to estimate types of sound attenuation devices location, as well as the location of the target size and distance; use of including bubble curtains, cofferdams, pile being driven, is known from a GPS. binoculars may be necessary to correctly and isolation casings (also called The location of the animal is estimated identify the target; temporary noise attenuation piles as a distance from the observer, which • Experience and ability to conduct (TNAP)), and cushion blocks. The Navy is then compared to the location from field observations and collect data proposes to use bubble curtains, which the pile. The received level may be according to assigned protocols (this create a column of air bubbles rising estimated on the basis of past or may include academic experience); around a pile from the substrate to the subsequent acoustic monitoring. It may • Experience or training in the field water surface. The air bubbles absorb then be determined whether the animal identification of marine mammals, and scatter sound waves emanating was exposed to sound levels including the identification of from the pile, thereby reducing the constituting incidental harassment in behaviors; sound energy. Bubble curtains may be post-processing of observational data, • Sufficient training, orientation, or confined or unconfined. The use of a and a precise accounting of observed experience with the construction confined or unconfined bubble curtain incidents of harassment created. operation to provide for personal safety will be determined by the Navy’s Therefore, although the predicted during observations; contractor based on the activity distances to behavioral harassment • Writing skills sufficient to prepare a location’s conditions; however, an thresholds are useful for estimating report of observations including but not unconfined bubble curtain is the likely harassment for purposes of authorizing limited to the number and species of the design that will be used. Our levels of incidental take, actual take may marine mammals observed; dates and Federal Register notice of proposed be determined in part through the use times when in-water construction authorization (April 4, 2016; 81 FR of empirical data. That information may activities were conducted; dates and 19326) provides a general background then be used to extrapolate observed times when in-water construction on bubble curtains. takes to reach an approximate activities were suspended to avoid To avoid loss of attenuation from understanding of actual total takes. potential incidental injury from design and implementation errors, the
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Navy has required specific bubble We have carefully evaluated the provide the means of effecting the least curtain design specifications, including Navy’s proposed mitigation measures practicable impact on marine mammal testing requirements for air pressure and and considered their effectiveness in species or stocks and their habitat, flow prior to initial impact hammer use, past implementation to determine paying particular attention to rookeries, and a requirement for placement on the whether they are likely to effect the least mating grounds, and areas of similar substrate. Bubble curtains shall be used practicable impact on the affected significance. during all impact pile driving. The marine mammal species and stocks and device will distribute air bubbles their habitat. Our evaluation of potential Monitoring and Reporting around 100 percent of the piling measures included consideration of the In order to issue an IHA for an perimeter for the full depth of the water following factors in relation to one activity, section 101(a)(5)(D) of the column, and the lowest bubble ring another: (1) The manner in which, and MMPA states that NMFS must set forth shall be in contact with the mudline for the degree to which, the successful ‘‘requirements pertaining to the the full circumference of the ring. We implementation of the measure is monitoring and reporting of such considered eight dB as potentially the expected to minimize adverse impacts taking’’. The MMPA implementing best estimate of average SPL (rms) to marine mammals, (2) the proven or regulations at 50 CFR 216.104 (a)(13) reduction, assuming appropriate likely efficacy of the specific measure to indicate that requests for incidental take deployment and no problems with the minimize adverse impacts as planned; authorizations must include the equipment. Therefore, an eight dB and (3) the practicability of the measure suggested means of accomplishing the reduction was used in the Navy’s for applicant implementation. necessary monitoring and reporting that analysis of pile driving noise in the Any mitigation measure(s) we will result in increased knowledge of environmental analyses. prescribe should be able to accomplish, the species and of the level of taking or have a reasonable likelihood of Timing Restrictions impacts on populations of marine accomplishing (based on current mammals that are expected to be In Port Angeles Harbor, designated science), or contribute to the present in the action area. timing restrictions exist for pile driving accomplishment of one or more of the activities to avoid in-water work when Any monitoring requirement we general goals listed below: prescribe should accomplish one or salmonids and other spawning forage (1) Avoidance or minimization of more of the following general goals: fish are likely to be present. In-water serious injury or death of marine work will be conducted between mammals wherever possible (goals 2, 3, 1. An increase in the probability of November 1, 2016–February 15, 2017, and 4 may contribute to this goal). detecting marine mammals, both within and July 16–October 31, 2017. All in- (2) A reduction in the number (total defined zones of effect (thus allowing water construction activities will occur number or number at biologically for more effective implementation of the during daylight hours (sunrise to sunset) important time or location) of mitigation) and in general to generate except from July 16 to September 23 individual marine mammals exposed to more data to contribute to the analyses when impact pile driving/removal will stimuli expected to result in incidental mentioned below; only occur starting 2 hours after sunrise take (this goal may contribute to 1, 2. An increase in our understanding and ending 2 hours before sunset, to above, or to reducing takes by of how many marine mammals are protect foraging marbled murrelets behavioral harassment only). likely to be exposed to stimuli that we during nesting season (April 1– (3) A reduction in the number (total associate with specific adverse effects, September 23). Other construction (not number or number at biologically such as behavioral harassment or in-water) may occur between 7 a.m. and important time or location) of times any hearing threshold shifts; 10 p.m., year-round. individual marine mammal would be 3. An increase in our understanding Soft Start exposed to stimuli expected to result in of how marine mammals respond to incidental take (this goal may contribute stimuli expected to result in incidental The use of a soft-start procedure is to 1, above, or to reducing takes by take and how anticipated adverse effects believed to provide additional behavioral harassment only). on individuals may impact the protection to marine mammals by (4) A reduction in the intensity of population, stock, or species warning or providing a chance to leave exposure to stimuli expected to result in (specifically through effects on annual the area prior to the hammer operating incidental take (this goal may contribute rates of recruitment or survival) through at full capacity. to 1, above, or to reducing the severity any of the following methods: For impact driving, soft start will be of behavioral harassment only). • Behavioral observations in the required, and contractors will provide (5) Avoidance or minimization of an initial set of strikes from the impact presence of stimuli compared to adverse effects to marine mammal observations in the absence of stimuli hammer at reduced energy, followed by habitat, paying particular attention to a thirty-second waiting period, then two (need to be able to accurately predict the prey base, blockage or limitation of pertinent information, e.g., received subsequent reduced energy strike sets. passage to or from biologically The reduced energy of an individual level, distance from source); important areas, permanent destruction • hammer cannot be quantified because of of habitat, or temporary disturbance of Physiological measurements in the variation in individual drivers. The habitat during a biologically important presence of stimuli compared to actual number of strikes at reduced time. observations in the absence of stimuli energy will vary because operating the (6) For monitoring directly related to (need to be able to accurately predict hammer at less than full power results mitigation, an increase in the pertinent information, e.g., received in ‘‘bouncing’’ of the hammer as it probability of detecting marine level, distance from source); • strikes the pile, resulting in multiple mammals, thus allowing for more Distribution and/or abundance ‘‘strikes.’’ Soft start for impact driving effective implementation of the comparisons in times or areas with will be required at the beginning of each mitigation. concentrated stimuli versus times or day’s pile driving work and at any time Based on our evaluation of the Navy’s areas without stimuli; following a cessation of impact pile proposed measures, we have 4. An increased knowledge of the driving of thirty minutes or longer. determined that the mitigation measures affected species; or
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5. An increase in our understanding record detailed information about any wild (Level A harassment); or (ii) has of the effectiveness of certain mitigation implementation of shutdowns, the potential to disturb a marine and monitoring measures. including the distance of animals to the mammal or marine mammal stock in the The Navy submitted a marine pile and description of specific actions wild by causing disruption of behavioral mammal monitoring plan as part of the that ensued and resulting behavior of patterns, including, but not limited to, IHA application for this project. It can the animal, if any. In addition, the Navy migration, breathing, nursing, breeding, be found on the Internet at will attempt to distinguish between the feeding, or sheltering (Level B www.nmfs.noaa.gov/pr/permits/ number of individual animals taken and harassment).’’ incidental.htm. the number of incidents of take. We All anticipated takes would be by Level A and Level B harassment Visual Marine Mammal Observations require that, at a minimum, the following information be collected on resulting from vibratory and impact pile The Navy will collect sighting data the sighting forms: driving and involving temporary and behavioral responses to • Date and time that monitored changes in behavior (Level B) and construction for marine mammal activity begins or ends; permanent threshold shift (PTS) (Level species observed in the region of • Construction activities occurring A). activity during the period of activity. All during each observation period; Low level responses to sound (e.g., observers will be trained in marine • Weather parameters (e.g., percent short-term avoidance of an area, short- mammal identification and behaviors cover, visibility); term changes in locomotion or and are required to have no other • Water conditions (e.g., sea state, vocalization) are less likely to result in construction-related tasks while tide state); fitness effects on individuals that would conducting monitoring. The Navy will • Species, numbers, and, if possible, ultimately affect the stock or the species monitor the shutdown zone and sex and age class of marine mammals; as a whole. However, if a sound source disturbance zone before, during, and • Description of any observable displaces marine mammals from an after pile driving, with observers located marine mammal behavior patterns, important feeding or breeding area for a at the best practicable vantage points. including bearing and direction of travel prolonged period, impacts on individual Based on our requirements, the Marine and distance from pile driving activity; animals could potentially be significant Mammal Monitoring Plan will • Distance from pile driving activities and could potentially translate to effects implement the following procedures for to marine mammals and distance from on annual rates of recruitment or pile driving: the marine mammals to the observation survival (e.g., Lusseau and Bejder, 2007; • A minimum of three Marine point; Weilgart, 2007). Specific understanding Mammal Observers (protected species • Locations of all marine mammal of the activity and the effected species observers (PSOs)) will be present during observations; and are necessary to predict the severity of both impact and vibratory pile driving/ • Other human activity in the area. impacts and the likelihood of fitness impacts, however, we start with the removal and would be located at the Reporting best vantage point(s) in order to estimated number of takes, properly see the entire shutdown zone A draft report will be submitted understanding that additional analysis and as much of the disturbance zone as within ninety calendar days of the is needed to understand what those possible. completion of the in-water work takes mean. Given the many • During all observation periods, window or sixty days prior to the uncertainties in predicting the quantity observers will use binoculars and the requested date of issuance of any future and types of impacts of sound on naked eye to search continuously for IHA for projects at the same location, marine mammals, it is common practice marine mammals. whichever comes first.. The report will to estimate how many animals are likely • If the shutdown zones are obscured include marine mammal observations to be present within a particular by fog or poor lighting conditions, pile pre-activity, during-activity, and post- distance of a given activity, or exposed driving at that location will not be activity during pile driving days, and to a particular level of sound, taking the initiated until that zone is visible. will also provide descriptions of any duration of the activity into Should such conditions arise while problems encountered in deploying consideration. This practice provides a impact driving is underway, the activity sound attenuating devices, any good sense of the number of instances will be halted. behavioral responses to construction of take, but potentially overestimates the • The shutdown and disturbance activities by marine mammals and a numbers of individual marine mammals zones around the pile will be monitored complete description of all mitigation taken. In particular, for stationary for the presence of marine mammals shutdowns and the results of those activities, it is more likely that some before, during, and after any pile driving actions and an extrapolated total take smaller number of individuals may or removal activity. estimate based on the number of marine accrue a number of incidences of Individuals implementing the mammals observed during the course of harassment per individual than for each monitoring protocol will assess its construction. A final report must be incidence to accrue to a new individual, effectiveness using an adaptive submitted within thirty days following especially if those individuals display approach. Monitoring biologists will use resolution of comments on the draft some degree of residency or site fidelity their best professional judgment report. and the impetus to use the site (e.g., throughout implementation and seek because of foraging opportunities) is Estimated Take by Incidental improvements to these methods when stronger than the deterrence presented Harassment deemed appropriate. Any modifications by the harassing activity. to protocol will be coordinated between Except with respect to certain The project area is not believed to be NMFS and the Navy. activities not pertinent here, section particularly important habitat for 3(18) of the MMPA defines marine mammals, nor is it considered Data Collection ‘‘harassment’’ as: ‘‘. . . any act of an area frequented by marine mammals. We require that observers use pursuit, torment, or annoyance which (i) Therefore, behavioral disturbances and approved data forms. Among other has the potential to injure a marine PTS that could result from pieces of information, the Navy will mammal or marine mammal stock in the anthropogenic sound associated with
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these activities are expected to affect proposed authorization (April 4, 2016; Although radial distance and area only a relatively small number of 81 FR 19326). All calculated distances associated with the zone ensonified to individual marine mammals, although to and the total area encompassed by the 160 dB (the behavioral harassment those effects could be recurring over the marine mammal sound thresholds are threshold for pulsed sounds, such as life of the project if the same individuals provided in Table 3. NMFS’s new those produced by impact driving) are remain in the project vicinity. acoustic guidance established new presented in Table 3, this zone would be The Navy has requested authorization thresholds for predicting auditory injury subsumed by the 120-dB zone produced for the incidental taking of small (Level A Harassment). The Guidance by vibratory driving. Thus, behavioral numbers of Steller sea lions, California indicates that there is a greater harassment of marine mammals sea lions, harbor seals, Northern likelihood of auditory injury for Phocid associated with impact driving is not elephant seals, and harbor porpoises in pinnipeds (i.e., harbor seals) and for considered further here. Since the 160- Port Angeles Harbor that may result high-frequency cetaceans (i.e., harbor dB threshold and the 120-dB threshold from pile driving during construction porpoise) than was considered in our both indicate behavioral harassment, activities associated with the pier notice of proposed authorization. In pile driving effects in the two zones are construction and support facilities order to address this increased equivalent. Although not considered as project. We described applicable sound likelihood, we increased the shutdown a likely construction scenario, if only thresholds for determining effects to zones required for harbor seals to 100 m the impact driver was operated on a marine mammals before describing the and for harbor porpoise to 150 m. In given day incidental take on that day information used in estimating the addition, to account for the potential would likely be lower because the area sound fields, the available marine that not all harbor seals may be ensonified to levels producing Level B mammal density or abundance observed, we authorize the taking by harassment would be smaller (although information, and the method of Level A harassment of one harbor seal actual take would be determined by the estimating potential incidents of take in per day of projected construction numbers of marine mammals in the area detail in our Federal Register notice of activity. on that day).
TABLE 3—CALCULATED DISTANCE(S) TO AND AREA ENCOMPASSED BY UNDERWATER MARINE MAMMAL SOUND THRESHOLDS DURING PILE INSTALLATION
Threshold Steel pile size Distance Area (inch) (m) (km 2)
Impact driving, disturbance (160 dB) ...... 24 464 0.43 30 631 0.75 36 398 0.33 Vibratory driving, disturbance (120 dB) ...... 24 6,310 20.4 30-inch 13,594 29.9 36 13,594 29.9
Port Angeles Harbor does not California see lions, and use local divided by the area of Port Angeles represent open water, or free field, abundance data for harbor seals. For Harbor. conditions. Therefore, sounds would species without a predictable Description of Take Calculation attenuate as they encounter land masses occurrence, like the harbor porpoise and or bends in the canal. As a result, the Northern elephant seal, estimates are The take calculations presented here calculated distance and areas of impact based on historical likelihood of rely on the best data currently available for the 120-dB threshold cannot actually encounter. Please see Appendix A of the for marine mammal populations in the be attained at the project area. See Navy’s application for more information Port Angeles Harbor. The formula was Figure 6–1 of the Navy’s application for on the NMSDD information. developed for calculating take due to a depiction of the size of areas in which pile driving activity and applied to each each underwater sound threshold is For all species, the most appropriate group-specific sound impact threshold. predicted to occur at the project area information available was used to The formula is founded on the following due to pile driving. estimate the number of potential assumptions: incidences of take. For harbor porpoise • All marine mammal individuals Marine Mammal Densities and Northern elephant seals, this potentially available are assumed to be The Navy has developed, with input involved reviewing historical present within the relevant area, and occurrence and numbers, as well as thus incidentally taken; from regional marine mammal experts, • estimates of marine mammal densities group size to develop a realistic estimate An individual can only be taken of potential exposure. For Steller sea once during a 24-h period; in Washington inland waters for the • Navy Marine Species Density Database lion and California sea lions, this There were will be 75 total days of (NMSDD). A technical report (Hanser et involved NMSDD data. For harbor seals, in-water activity and the largest ZOI this involved site-specific data from equals 29.9 km2; al., 2015) describes methodologies and • available information used to derive published literature describing harbor Exposures to sound levels above the these densities, which are generally seal research conducted in Washington relevant thresholds equate to take, as considered the best available and Oregon, including counts from defined by the MMPA. The calculation for marine mammal information for Washington inland haul-outs near Port Angeles Harbor takes is estimated by: waters, except where specific local (WDFW, 2015). Therefore, density was abundance information is available. calculated as the maximum number of Exposure estimate = (n * ZOI) * days of Here, we rely on NMSDD density individuals expected to be present at a total activity information for the Steller sea lions and given time (Houghton et al., 2015) Where:
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n = density estimate used for each species/ population, species, or stocks would different individuals may enter and exit season remain stable. the water. Therefore, an instantaneous ZOI = sound threshold ZOI area; the area California Sea Lion—The California estimate of animals in the water at a encompassed by all locations where the sea lion is most common in the Strait of given time may not produce an accurate SPLs equal or exceed the threshold being Juan de Fuca from fall to late spring. assessment of the number of individuals evaluated California sea lion haul-outs are greater that enter the water over the daily n * ZOI produces an estimate of the than 30 miles (48 km) away. Animals duration of the activity. However, no abundance of animals that could be could be exposed when traveling, data exist regarding fine-scale harbor present in the area for exposure, and is resting, or foraging. Primarily only male seal movements within the project area rounded to the nearest whole number California sea lions migrate through the on time durations of less than a day, before multiplying by days of total Strait of Juan de Fuca (Jeffries et al., thus precluding an assessment of activity. 2000). Based on the NMSDD data ingress or egress of different animals The ZOI impact area is the estimated showing that 0.676 California sea lions through the action area. As such, it is range of impact to the sound criteria. per km2 may be present intermittently impossible, given available data, to The relevant distances specified in in the ZOI, 1,500 exposures were determine exactly what number of Table 3 were used to calculate ZOIs estimated for this species. These individuals may potentially be exposed around each pile. The ZOI impact area exposures would be a temporary to underwater sound. took into consideration the possible behavioral harassment. It is assumed A typical pile driving day (in terms of affected area of Port Angeles harbor that this number would include the actual time spent driving) is from the pile driving site furthest from multiple behavioral harassments of the somewhat shorter than may be assumed shore with attenuation due to land same individual(s). (i.e., 8–15 hours) as a representative pile shadowing from bends in the shoreline. Steller Sea Lion—Steller sea lions driving day based on daylight hours. Because of the close proximity of some occur seasonally in the Strait of Juan de Construction scheduling and notional of the piles to the shore, the narrowness Fuca from September through May. production rates in concert with typical of the harbor at the project area, and the Steller sea lion haul-outs are 13 miles delays mean that hammers are active for maximum fetch, the ZOIs for each (21 km) away. Based on the NMSDD only some fraction of time on pile data showing that 0.935 Steller sea lion driving ‘‘days.’’ threshold are not necessarily spherical 2 and may be truncated. per km may be present intermittently Harbor seals are not likely to have a in the ZOI, 2,100 exposures were uniform distribution as is assumed While pile driving can occur any day estimated for this species. These through use of a density estimate, but throughout the in-water work window, exposures would be a temporary are likely to be relatively concentrated and the analysis is conducted on a per behavioral harassment. It is assumed near areas of interest such as the haul- day basis, only a fraction of that time that this number would include outs or foraging areas. The estimated (typically a matter of hours on any given multiple behavioral harassments of the 160 harbor seals is the maximum day) is actually spent pile driving. same individual(s). number of animals at haul-outs outside Acoustic monitoring has demonstrated Harbor Seal—Harbor seals are present of the airborne Level B behavioral that Level B harassment zones for year round with haul-outs in Port harassment zone; the number of vibratory pile driving are likely to be Angeles Harbor. Prior Navy IHAs have exposures to individual harbor seals smaller than the zones estimated successfully used density-based foraging in the underwater behavioral through modeling based on measured estimates; however, in this case, density harassment zone would likely be much source levels and practical spreading estimates were not appropriate because lower. loss. Also of note is the fact that the there is a haul-out nearby on a log boom This tells us that (1) there are likely effectiveness of mitigation measures in approximately 1.7 miles (2.7 km) west to be significantly fewer harbor seals in reducing takes is typically not of the project site that was last surveyed the majority of the action area than the quantified in the take estimation in March 2013 and had a total count of take estimate suggests; and (2) pile process. See Table 4 for total estimated 73 harbor seals (WDFW 2015). Another driving actually occurs over a limited incidents of take. haul-out site is 1.3 miles (2.1 km) south timeframe on any given day (i.e., less Harbor Porpoise—In Washington of the project but is across the harbor total time per day than would be inland waters, harbor porpoises are that was last surveyed in July 2010 and assumed based on daylight hours and most abundant in the Strait of Juan de had a total count of 87 harbor seals non-continuously), reducing the amount Fuca, San Juan Island area, and (WDFW 2015). Density was calculated of time over which new individuals Admiralty Inlet. Although harbor as the maximum number of individuals might enter the action area within a porpoise occur year round in the Strait expected to be present at a given time given day. These factors lead us to of Juan de Fuca, harbor porpoises are a (160 animals), times the number of days believe that the approximate number of rare occurrence in Port Angeles Harbor, of pile activity. Based on the seals that may be found in the action and density-based analysis does not assumption that there could be 160 area (160) is more representative of the adequately account for their unique harbors seals hauled out in proximity to number of animals exposed than the temporal and spatial distributions. the ZOI, 12,000 exposures were number of Level B Harassment takes Estimates are based on historical estimated for this stock over 75 days of requested for this species, and only likelihood of encounter. Based on the construction. Additionally, to account represents 1.5 percent of the most recent assumption that 3 harbor porpoise may for the potential that all harbor seals estimate of this stock of harbor seals. be present intermittently in the ZOI may not be observed in an area that may Moreover, because the Navy is typically (Hall, 2004), a total of 225 harbor incur PTS, we authorize the taking by unable to determine from field porpoise exposures were estimated over Level A harassment of one harbor seal observations whether the same or 75 days of construction. These per day of projected construction different individuals are being exposed, exposures would be a temporary activity for a total of 75 Level A takes. each observation is recorded as a new behavioral harassment and would not We recognize that over the course of take, although an individual impact the long-term health of the day, while the proportion of animals theoretically would only be considered individuals; the viability of the in the water may not vary significantly, as taken once in a given day.
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Northern elephant seal—Northern following years: 2000, 2002, 2004, 2005, their unique temporal and spatial elephant seals are rare visitors to the and 2006 (WDFW 2015). Elephant seals distributions; therefore, estimates are Strait of Juan de Fuca. However, are primarily present during spring and based on historical likelihood of individuals, primarily juveniles, have summer months. If a northern elephant encounter. Based on the assumption been known to sporadically haul out to seal was in the ZOI, it would likely be that one elephant seal may be present molt on Dungeness Spit about 12 miles a solitary juvenile. Northern elephant intermittently in the ZOI, 75 exposures (19 km) from Port Angeles. One seals are a rare occurrence in Port were calculated for this species. These elephant seal was observed hauled-out Angeles Harbor, and density-based exposures would be a temporary at Dungeness Spit in each of the analysis does not adequately account for behavioral harassment.
TABLE 4—NUMBER OF POTENTIAL INCIDENTAL INSTANCES OF TAKE OF MARINE MAMMALS WITHIN VARIOUS ACOUSTIC THRESHOLD ZONES
Underwater Species Density % of stock Level A Level B (120 dB) 1
California sea lion ...... 0.676 animal/sq. km * ...... 0 1,500 0.5 Steller sea lion ...... 0.935 animals/sq. km* ...... 0 2,100 4 Harbor seal ...... 160 2 ...... 75 4 12,000/160 100/1.5 Northern elephant seal ...... 1 3 ...... 0 75 0.04 Harbor porpoise ...... 3 3 ...... 0 225 2 * For species with associated density, density was multiplied by largest ZOI (i.e., 29.9 km2). The resulting value was rounded to the nearest whole number and multiplied by the 75 days of activity. For species with abundance only, that value was multiplied directly by the 75 days of ac- tivity. We assume for reasons described earlier that no takes would result from airborne noise. 1 The 160-dB acoustic harassment zone associated with impact pile driving would always be subsumed by the 120-dB harassment zone pro- duced by vibratory driving. Therefore, takes are not calculated separately for the two zones. 2 For this species, site-specific data was used from published literature describing research conducted in Washington and Oregon, including counts from haul-outs near Port Angeles Harbor. Therefore, density was calculated as the maximum number of individuals expected to be present at a given time. 3 Figures presented are abundance numbers, not density, and are calculated as the average of average daily maximum numbers per month (see Section 6.6 in application). Abundance numbers are rounded to the nearest whole number for take estimation. 4 The maximum number of harbor seal anticipated to be in the vicinity to be exposed to the sound levels is 160 animals based on counts from the two nearby haul out sites. This small number of individuals is expected to be the same animals exposed repeatedly, instead of new individ- uals being exposed each day. These animals, to which any incidental take would accrue, represent 1.5 percent of the most recent estimate of the stock abundance from the 2013 SAR.
Analyses and Preliminary in Table 4, given that the anticipated potential for these outcomes is Determinations effects of this activity on these different minimized through the construction marine mammal stocks are expected to Negligible Impact Analysis method and the implementation of the be similar. There is no information planned mitigation measures. NMFS has defined ‘‘negligible about the nature or severity of the Specifically, vibratory hammers will be impact’’ in 50 CFR 216.103 as ‘‘. . . an impacts, or the size, status, or structure the primary method of installation, and impact resulting from the specified of any of these species or stocks that this activity does not have significant activity that cannot be reasonably would lead to a different analysis for potential to cause serious injury to expected to, and is not reasonably likely this activity. marine mammals due to the relatively to, adversely affect the species or stock Pile driving activities associated with low source levels produced and the lack through effects on annual rates of the pier construction project, as of potentially injurious source recruitment or survival.’’ A negligible outlined previously, have the potential characteristics. Impact pile driving to disturb or displace marine mammals. impact finding is based on the lack of produces short, sharp pulses with likely adverse effects on annual rates of Specifically, the specified activities may higher peak levels and much sharper recruitment or survival (i.e., population- result in take, in the form of Level A rise time to reach those peaks. When level effects). An estimate of the number (PTS) and Level B harassment impact driving is necessary, required of Level A and Level B harassment takes (behavioral disturbance), from measures (use of a sound attenuation alone is not enough information on underwater sounds generated from pile which to base an impact determination. driving. Potential takes could occur if system, which reduces overall source In addition to considering estimates of individuals of these species are present levels as well as dampening the sharp, the number of marine mammals that in the ensonified zone when pile potentially injurious peaks, and might be ‘‘taken’’ through behavioral driving is happening, which is likely to implementation of shutdown zones) harassment, we consider other factors, occur because (1) harbor seals are significantly reduce any possibility of such as the likely nature of any frequently observed in Port Angeles serious injury. Given sufficient ‘‘notice’’ responses (e.g., intensity, duration), the harbor in two known haul-out locations; through use of soft start, marine context of any responses (e.g., critical or (2) cetaceans or pinnipeds transit the mammals are expected to move away reproductive time or location, outer edges of the larger Level B from a sound source that is annoying migration), as well as the number and harassment zone outside of the harbor. prior to it becoming potentially nature of estimated Level A harassment No serious injury or mortality is injurious. The likelihood that marine takes, the number of estimated anticipated given the methods of mammal detection ability by trained mortalities, and effects on habitat. To installation and measures designed to observers is high under the avoid repetition, the discussion of our minimize the possibility of serious environmental conditions described for analyses applies to all the species listed injury to marine mammals. The Port Angeles harbor further enables the
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implementation of shutdowns to avoid project area; and (6) the presumed counts from the two nearby haul out serious injury or mortality. efficacy of the planned mitigation sites, 160 harbor seals could potentially Effects on individuals that are taken measures in reducing the effects of the be in the vicinity to be exposed to the by Level B harassment, on the basis of specified activity to the level of least sound levels. This small number of reports in the literature, will likely be practicable impact. In addition, none of individuals is expected to be the same limited to reactions such as increased these stocks are listed under the ESA or animals exposed repeatedly, instead of swimming speeds, increased surfacing designated as depleted under the new individuals being exposed each time, or decreased foraging (if such MMPA. In combination, we believe that day. These animals, to which any activity were occurring). Most likely, these factors, as well as the available incidental take would accrue, represent individuals will simply move away body of evidence from other similar 1.5 percent of the most recent estimate from the sound source and be activities, including those conducted in of the stock abundance from the 2013 temporarily displaced from the areas of nearby locations, demonstrate that the SAR. It is estimated that one individual pile driving, although even this reaction potential effects of the specified activity harbor seal per day may be exposed to has been observed primarily only in will have only short-term effects on sound levels that may incur PTS. This association with impact pile driving. individuals. The specified activity is not represents only 0.68% of the stock Repeated exposures of individuals to expected to impact rates of recruitment abundance. levels of sound that may cause Level B or survival and will therefore not result As summarized here, the estimated harassment are unlikely to result in in population-level impacts. Based on numbers of potential incidents of disruption of foraging behavior. Thus, the analysis contained herein of the harassment for these species are likely even repeated Level B harassment of likely effects of the specified activity on much higher than will realistically some small subset of the overall stock is marine mammals and their habitat, and occur. This is because (1) we use the unlikely to result in any significant taking into consideration the maximum possible number of days (75) realized decrease in fitness to those implementation of the planned in estimating take, despite the fact that individuals, and thus would not result monitoring and mitigation measures, we multiple delays and work stoppages are in any adverse impact to the stock as a find that the total marine mammal take likely to result in a lower number of whole. Level B harassment will be from Navy’s pier construction activities actual pile driving days; and (2) sea lion reduced to the level of least practicable will have a negligible impact on the estimates rely on the averaged impact through use of mitigation affected marine mammal species or maximum daily abundances per month, measures described herein and, if sound stocks. rather than simply an overall average produced by project activities is Small Numbers Analysis which would provide a much lower sufficiently disturbing, animals are abundance figure. In addition, potential likely to simply avoid the project area The numbers of animals authorized to efficacy of mitigation measures in terms while the activity is occurring. be taken for harbor porpoise, Northern of reduction in numbers and/or Effects on individuals that are taken elephant seal, and Steller and California intensity of incidents of take has not by Level A harassment would be in the sea lions would be considered small been quantified. Therefore, these form of PTS. In this analysis, we relative to the relevant stocks or estimated take numbers are likely to be considered the potential for small populations (less than one percent for overestimates of individuals. Based on numbers of harbor seals to incur Northern elephant seal and California the analysis contained herein of the auditory injury and found that it would sea lion, less than four percent for likely effects of the specified activity on not impact our determinations. Steller sea lion, and less than two marine mammals and their habitat, and For pinnipeds, no rookeries are percent for harbor porpoise) even if each taking into consideration the present in the project area, but there are estimated taking occurred to a new implementation of the mitigation and two haul-outs within 2.5 mi (4 km) of individual—an extremely unlikely monitoring measures, we find that small the project site. However, the project scenario. For pinnipeds occurring in the numbers of marine mammals will be area is not known to provide foraging nearshore areas, there will almost taken relative to the populations of the habitat of any special importance (other certainly be some overlap in individuals affected species or stocks. than is afforded by the known migration present day-to-day. Further, for the of salmonids). No cetaceans are pinniped species, these takes could Impact on Availability of Affected expected within the harbor. potentially occur only within some Species for Taking for Subsistence Uses In summary, this negligible impact small portion of the overall regional There are no relevant subsistence uses analysis is founded on the following stock. For example, of the estimated of marine mammals implicated by this factors: (1) The possibility of serious 296,750 California sea lions, only action. Therefore, we have determined injury or mortality may reasonably be certain adult and subadult males— that the total taking of affected species considered discountable; (2) the believed to number approximately or stocks would not have an unmitigable anticipated incidences of Level B 3,000–5,000 by Jeffries et al. (2000)— adverse impact on the availability of harassment consist of, at worst, travel north during the non-breeding such species or stocks for taking for temporary modifications in behavior season. That number has almost subsistence purposes. and the anticipated incidences of Level certainly increased with the population A harassment would be in the form of of California sea lions—the 2000 SAR Endangered Species Act PTS to a small number of only one for California sea lions reported an No marine mammal species listed species; (3) the absence of any major estimated population size of 204,000– under the ESA are expected to be rookeries and only a few haul-out areas 214,000 animals—but likely remains a affected by these activities. Therefore, near or adjacent to the project site; (4) relatively small portion of the overall we have determined that a section 7 the absence of cetaceans within the population. consultation under the ESA is not harbor and generally sporadic For harbor seals, takes are likely to required. occurrence outside of the ensonified occur only within some portion of the area; (5) the absence of any other known population, rather than to animals from National Environmental Policy Act areas or features of special significance the Washington inland waters stock as In compliance with the NEPA of 1969 for foraging or reproduction within the a whole. It is estimated that, based on (42 U.S.C. 4321 et seq.), as implemented
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by the regulations published by the Protected Species home page, https:// targeted for active playback, but Council on Environmental Quality apps.nmfs.noaa.gov, and then selecting incidental harassment to additional (CEQ; 40 CFR parts 1500–1508), the File No. 17845 from the list of available species may occur including bottlenose Navy prepared an Environmental applications. dolphins (Tursiops truncatus), spinner Assessment (EA) for this project. NMFS These documents are also available dolphins (Stenella longirostris), false made the Navy’s EA available to the upon written request or by appointment killer whales (Pseudorca crassidens), public for review and comment, in in the Permits and Conservation melon headed whales (Peponocephala relation to its suitability for adoption by Division, Office of Protected Resources, electra), and short-finned pilot whales NMFS in order to assess the impacts to NMFS, 1315 East-West Highway, Room (Globicephala macrorhynchus). the human environment of issuance of 13705, Silver Spring, MD 20910; phone In compliance with the National an IHA to the Navy. Also in compliance (301) 427–8401; fax (301) 713–0376. Environmental Policy Act of 1969 (42 with NEPA and the CEQ regulations, as Written comments on this application U.S.C. 4321 et seq.), an initial well as NOAA Administrative Order should be submitted to the Chief, determination has been made that the 216–6, NMFS has reviewed the Navy’s Permits and Conservation Division, at activity proposed is categorically EA, determined it to be sufficient, and the address listed above. Comments may excluded from the requirement to adopted that EA and signed a Finding also be submitted by facsimile to (301) prepare an environmental assessment or of No Significant Impact (FONSI) in 713–0376, or by email to environmental impact statement. September 2016. [email protected]. Please Concurrent with the publication of include the File No. in the subject line this notice in the Federal Register, Authorization of the email comment. NMFS is forwarding copies of this As a result of these determinations, Those individuals requesting a public application to the Marine Mammal we have issued an IHA to the Navy for hearing should submit a written request Commission and its Committee of conducting the described pier and to the Chief, Permits and Conservation Scientific Advisors. support facilities for the transit Division at the address listed above. The Dated: September 27, 2016. protection system U.S. Coast Guard Air request should set forth the specific Julia Harrison, Station/Sector Field Office Port Angeles, reasons why a hearing on this Washington from November 1, 2016 Chief, Permits and Conservation Division, application would be appropriate. Office of Protected Resources, National through February 15, 2017, and July 16 FOR FURTHER INFORMATION CONTACT: Marine Fisheries Service. through October 31, 2017 provided the Shasta McClenahan or Carrie Hubard, [FR Doc. 2016–23724 Filed 9–30–16; 8:45 am] previously mentioned mitigation, (301) 427–8401. BILLING CODE 3510–22–P monitoring, and reporting requirements SUPPLEMENTARY INFORMATION: The are incorporated. subject amendment to Permit No. 17845 Dated: September 27, 2016. is requested under the authority of the CORPORATION FOR NATIONAL AND Donna S. Wieting, Marine Mammal Protection Act of 1972, COMMUNITY SERVICE Director, Office of Protected Resources, as amended (16 U.S.C. 1361 et seq.), the National Marine Fisheries Service. regulations governing the taking and Sunshine Act Meeting importing of marine mammals (50 CFR [FR Doc. 2016–23726 Filed 9–30–16; 8:45 am] The National Civilian Community BILLING CODE 3510–22–P part 216), the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et Corps Advisory Board gives notice of seq.), and the regulations governing the the following meeting: DEPARTMENT OF COMMERCE taking, importing, and exporting of Date and Time: Tuesday, October 18, endangered and threatened species (50 2016, 2:00 p.m.–3:30 p.m. (CT). National Oceanic and Atmospheric CFR 222–226). Place: Main Conference Room, Administration Permit No. 17845, issued on January AmeriCorps NCCC Southern Region Campus, 2715 Confederate Avenue, RIN 0648–XC599 25, 2014 (79 FR 5382), authorizes the permit holder to conduct Level A and B Vicksburg, MS 39180. Call-In Information: This meeting is harassment of humpback whales Marine Mammals; File No. 17845 available to the public through the (Megaptera novaeangliae) during photo- following toll-free call-in number: 888– AGENCY: National Marine Fisheries identification, behavioral follows, and 324–9650 conference call access code Service (NMFS), National Oceanic and surface and underwater observations in number 2943297. Pete McRoberts will Atmospheric Administration (NOAA), Hawaii, Alaska, and California. Nine be the lead on the call. Any interested Commerce. other cetacean species may be studied member of the public may call this ACTION: Notice; receipt of application for opportunistically and two species of number and listen to the meeting. permit amendment. pinnipeds may be incidentally harassed. Callers can expect to incur charges for The permit expires on January 31, 2019. calls they initiate over wireless lines, SUMMARY: Notice is hereby given that The permit holder is requesting the and the Corporation will not refund any Rachel Cartwright, Ph.D., Keiki Kohola permit be amended to authorize Level B incurred charges. Callers will incur no Project, 4945 Coral Way, Oxnard, CA playbacks for humpback whales to charge for calls they initiate over land- 93035, has applied for an amendment to estimate their hearing range using line connections to the toll-free Scientific Research Permit No. 17845. behavioral observation audiometry. The telephone number. Replays are DATES: Written, telefaxed, or email sounds will be presented to a maximum generally available one hour after a call comments must be received on or before of 300 humpback whales and their ends. The toll-free phone number for the November 9, 2016. behavioral responses will be measured replay is 888–566–0571. The end replay ADDRESSES: The application and related through visual and acoustic recordings date: November 17, 2016, 10:59 p.m. documents are available for review by including an unmanned aerial system. (CT). selecting ‘‘Records Open for Public The research will take place from Status: Open. Comment’’ from the ‘‘Features’’ box on January through April, annually, in the Applications and Permits for Hawaii. Only humpback whales will be Matters To Be Considered
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I. Meeting Convenes configuration or measured geometries of wishing to provide input to the Air II. Approval of Minutes manufactured components. This would University Board of Visitors’ should III. Directors Report include almost all fields related to submit a written statement in IV. Program Updates engineering including mechanical, accordance with 41 CFR 102–3.140(c) V. Public Comment biomedical, aeronautical, and aerospace and section 10(a)(3) of the Federal Accommodations: Anyone who needs engineering disciplines. These fields Advisory Committee Act and the an interpreter or other accommodations base their design processes on procedures described in this paragraph. should notify the Corporation’s contact computational meshes, whether they be Written statements can be submitted to person by 5:00 p.m. Friday, October 7, finite element structural and heat the Designated Federal Officer at the 2016. transfer models or computational fluid address detailed below at any time. Contact Person for More Information: dynamics predictions. The computer Statements being submitted in response Matthew Payne, NCCC, Corporation for graphs industry also relies heavily on to the agenda mentioned in this notice National and Community Service, 3rd updating tessellated surfaces to new must be received by the Designated Floor, Room 3241D, 250 E St. SW., locations and would also benefit from Federal Officer at the address listed Washington, DC 20525. Phone 202–606– use of this software. below at least ten calendar days prior to 6907. Fax 202–606–3465. TTY: 800– the meeting which is the subject of this 833–3722. Email address: mpayne@ Henry Williams, notice. Written statements received after cns.gov. Acting Air Force Federal Register Liaison this date may not be provided to or Officer. Dated: September 28, 2016. considered by the Air University Board [FR Doc. 2016–23776 Filed 9–30–16; 8:45 am] Jeremy Joseph, of Visitors until its next meeting. The BILLING CODE 5001–10–P Designated Federal Officer will review General Counsel. all timely submissions with the Air [FR Doc. 2016–23962 Filed 9–29–16; 4:15 pm] University Board of Visitors’ Board BILLING CODE 6050–28–P DEPARTMENT OF DEFENSE Chairperson and ensure they are Department of the Air Force provided to members of the Board before the meeting that is the subject of DEPARTMENT OF DEFENSE Air University Board of Visitors this notice. Additionally, public Meeting attendance at the AU/BOV meeting shall Department of the Air Force be accommodated on a first-come, first- AGENCY: Air University, Department of served basis up to the reasonable and Notice of Availability of Software and the Air Force, Department of Defense. safe capacity of the meeting room. Any Documentation for Licensing ACTION: Notice of meeting of the Air member of the public wishing to attend AGENCY: Air Force Research Laboratory, University Board of Visitors. this meeting should contact the Department of the Air Force. Designated Federal Officer listed below SUMMARY: Under the provisions of the at least ten calendar days prior to the ACTION: Availability of MESHMORPH Federal Advisory Committee Act of software and documentation for meeting for information on base entry 1972 (5 U.S.C., Appendix, as amended), procedures. licensing. the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and FOR FURTHER INFORMATION CONTACT: Ms. SUMMARY: Pursuant to the provisions of Lisa Arnold, Designated Federal Officer, Section 801 of Public Law 113–66 (2014 41 CFR 102–3.150, the Department of Defense announces that the Air Air University Headquarters, 55 LeMay National Defense Authorization Act); Plaza South, Maxwell Air Force Base, the Department of the Air Force University Board of Visitors’ fall meeting will take place on Monday, Alabama 36112–6335, telephone (334) announces the availability of 953–2989. MESHMORPH software and related November 14th, 2016, from documentation for Automated approximately 8:00 a.m. to Henry Williams, Computational Mesh Metamorphosis, approximately 5:00 p.m. and Tuesday, Acting Air Force Federal Register Officer. which automatically updates an existing November 15th, 2016, from [FR Doc. 2016–23777 Filed 9–30–16; 8:45 am] approximately 7:30 a.m. to source mesh of three dimensional points BILLING CODE 5001–10–P and connectivities to a target mesh approximately 3:00 p.m. The meeting generated from a three dimensional will be held at the Headquarters Air coordinate measurement system or University, in the Commander’s DEPARTMENT OF DEFENSE computer aided design system. Conference Room, Building 800, on Maxwell Air Force Base, Alabama. The Office of the Secretary ADDRESSES: Licensing interests should purpose of this meeting is to provide be sent to: Air Force Research independent advice and Notice of Two-Year Extension of Laboratory, Aerospace Systems recommendations on matters pertaining TRICARE Co-Pay Waiver at Captain Directorate, AFRL/RQOB, 2130 8th to the educational, doctrinal, and James A. Lovell Federal Health Care Street, Wright-Patterson AFB, OH research policies and activities of Air Center Demonstration Project 45433; Facsimile: (937) 255–6788. University. Specific to this agenda AGENCY: Office of the Secretary, FOR FURTHER INFORMATION CONTACT: Air includes topics relating to AU’s policy Department of Defense. Force Research Laboratory, Aerospace and organizational structure, Systems Directorate, AFRL/RQOB, 2130 ACTION: Notice of two-year extension of transformation updates, and a faculty TRICARE Co-Pay Waiver at Captain 8th Street, Wright-Patterson AFB, OH senate out-brief and BOV ethics and 45433; Facsimile: (937) 255–6788. James A. Lovell Federal Health Care membership review. Center Demonstration Project. SUPPLEMENTARY INFORMATION: Pursuant to 5 U.S.C. 552b, as MESHMORPH Software is applicable to amended, and 41 CFR 102–3.155 all SUMMARY: This notice is to advise any field where a computational mesh sessions of the Air University Board of interested parties of a two-year needs to be modified to match new Visitors’ meetings’ will be open to the extension of a demonstration project target geometries, such as a new design public. Any member of the public entitled ‘‘TRICARE Co-Pay Waiver at
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Captain James A. Lovell Federal Health extensions to the TRICARE co-pay obtained at http:// Care Center (FHCC) Demonstration waiver demonstration project beyond www.facadatabase.gov/. The Committee Project.’’ The original waiver notice was FY17. provides the Secretary of Defense and published on September 27, 2010 (75 FR In order to allow seamless the Deputy Secretary of Defense 59237–59238). continuation of services to DoD independent advice and DATES: Effective Date: This two-year beneficiaries at FHCC, the TRICARE co- recommendations on the DoD program extension will be effective from October pay waiver is extended through to commemorate the 50th Anniversary 1, 2016 to September 30, 2018. September 30, 2018. This waiver applies of the Vietnam War. The Committee FOR FURTHER INFORMATION CONTACT: Mr. to all inpatient, outpatient, and ancillary shall be composed of no more than 20 Michael Bouchard, Director, DoD/VA services, and all outpatient prescription members who represent Vietnam Program Coordination Office, Defense drugs provided at FHCC. This waiver is Veterans, their families, and the Health Agency, Telephone 703–275– consistent with current policies and American public. Members who are not 6300. procedures followed at all military full-time or permanent part-time Federal treatment facilities. According to an officers or employees are appointed as SUPPLEMENTARY INFORMATION: Independent Government Cost Estimate experts or consultants pursuant to 5 A. Background (IGCE), the estimated two-year impact U.S.C. 3109 to serve as special for the co-pay waiver in FY2017 and For additional information on the government employee members. FY2018 is $246,499. TRICARE co-pay waiver demonstration Members who are full-time or at the Captain James A. Lovell Federal C. Evaluation permanent part-time Federal officers or employees are appointed pursuant to 41 Health Care Center (FHCC) An independent evaluation was CFR 102–3.130(a) to serve as regular demonstration project, please see 75 FR performed and determined that without government employee members. Each 59237–59238. Under this this waiver, DoD beneficiary utilization member is appointed to provide advice demonstration, there would be no of the FHCC in North Chicago would on behalf of the Government on the deductibles, cost shares, or co-pays for have significantly decreased. Since DoD basis of their best judgment without eligible beneficiaries seeking care at the and VA have recommended to Congress representing any particular point of FHCC, under the authority of 10 U.S.C. to continue the demonstration project, a view and in a manner that is free from 1092(a)(1)(B). The original permanent solution regarding DoD conflict of interest. Except for demonstration notice explained that the beneficiary co-pays is expected to be in reimbursement of official Committee- co-pay waiver demonstration would be place for FY18 and will ensure that DoD related travel and per diem, members used to determine if increased beneficiaries are not levied cost shares, serve without compensation. The DoD, utilization at FHCC actually occurred as as FHCC represents the former Naval as necessary and consistent with the a result of eliminated co-payments, Hospital Great Lakes. which would in turn influence Committee’s mission and DoD policies decisions regarding financial integration Dated: September 28, 2016. and procedures, may establish at future Department of Defense (DoD)/ Aaron Siegel, subcommittees, task forces, or working Department of Veterans Affairs (VA) Alternate OSD Federal Register Liaison groups to support the Committee, and models of this nature. A report on the Officer, Department of Defense. all subcommittees must operate under demonstration project concluded that [FR Doc. 2016–23819 Filed 9–30–16; 8:45 am] the provisions of FACA and the utilization increased at FHCC during the BILLING CODE 5001–06–P Government in the Sunshine Act. time of the co-pay waiver demonstration Subcommittees will not work project. Admission and encounter independently of the Committee and utilization data from 2010 to 2014 DEPARTMENT OF DEFENSE must report all recommendations and shows that DoD utilization of FHCC advice solely to the Committee for full Office of the Secretary increased by 10,295. This demonstration deliberation and discussion. is integral to the success of the Charter Renewal of Department of Subcommittees, task forces, or working integration effort at FHCC; without it, Defense Federal Advisory Committees groups have no authority to make FHCC would see a marked reduction in decisions and recommendations, DoD beneficiaries. AGENCY: Department of Defense. verbally or in writing, on behalf of the ACTION: Renewal of Federal Advisory Committee. No subcommittee or any of B. Description of Extension of Committee. its members can update or report, Demonstration Project verbally or in writing, directly to the Under this demonstration, DoD has SUMMARY: The Department of Defense DoD or any Federal officers or waived TRICARE co-payments for DoD (DoD) is publishing this notice to employees. The Committee’s DFO, beneficiaries seen at the FHCC. The announce that it is renewing the charter pursuant to DoD policy, must be a full- National Defense Authorization Act for the Vietnam War Commemoration time or permanent part-time DoD (NDAA) for fiscal year (FY) 2010 Advisory Committee (‘‘the Committee’’). employee, and must be in attendance for Section 1701 requires a report to FOR FURTHER INFORMATION CONTACT: Jim the duration of each and every Congress evaluating the exercise of Freeman, Advisory Committee Committee/subcommittee meeting. The authorities in that title at FHCC. That Management Officer for the Department public or interested organizations may report was delivered on July 26, 2016, of Defense, 703–692–5952. submit written statements to the and recommends continuation of the SUPPLEMENTARY INFORMATION: This Committee membership about the FHCC demonstration project. If committee’s charter is being renewed in Committee’s mission and functions. Congress agrees, it is likely Congress accordance with the Federal Advisory Such statements may be submitted at will clarify that access to care under Committee Act (FACA) of 1972 (5 any time or in response to the stated section 1705 should apply to the entire U.S.C., Appendix, as amended) and 41 agenda of planned Committee meetings. joint facility and not be limited to the CFR 102–3.50(d). The charter and All written statements must be DoD assets within the facility. If so, that contact information for the Committee’s submitted to the Committee’s DFO who will negate the requirement for further Designated Federal Officer (DFO) can be will ensure the written statements are
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provided to the membership for their SUPPLEMENTARY INFORMATION: Section Subsidized and Unsubsidized Stafford consideration. 427A of the HEA, provides formulas for Loans first disbursed on or after October Dated: September 28, 2016. determining the interest rates charged to 1, 1992, and before July 1, 2006; Federal borrowers on loans made under the Aaron Siegel, PLUS Loans first disbursed on or after Federal Family Education Loan (FFEL) July 1, 1998, and before July 1, 2006; Alternate OSD Federal Register Liaison Program, including Federal Subsidized Officer, Department of Defense. and Federal Consolidation Loans for and Unsubsidized Stafford Loans, which the Federal Consolidation Loan [FR Doc. 2016–23822 Filed 9–30–16; 8:45 am] Federal PLUS Loans, and Federal application was received on or after BILLING CODE 5001–06–P Consolidation Loans. November 13, 1997, and before October The FFEL Program includes loans 1, 1998. In each case, the calculated rate with variable interest rates and loans is capped by a maximum interest rate. DEPARTMENT OF EDUCATION with fixed interest rates. Most loans The bond equivalent rate of the 91-day made under the FFEL Program before Treasury bills auctioned on May 31, Annual Notice of Variable Interest July 1, 2006, have variable interest rates 2016, which is used to calculate the Rates of Federal Student Loans Made that change each year. In most cases, the interest rates on these loans, is 0.345 Under the Federal Family Education variable interest rate formula that rounded up to 0.35 percent. Loan Program Prior to July 1, 2010 applies to a particular loan depends on For Federal PLUS loans first the date of the first disbursement of the disbursed before July 1, 1998, the AGENCY: Federal Student Aid, loan. The variable rates are determined Department of Education. interest rate is based on the weekly annually and are effective for each 12- average of the one-year constant ACTION: Notice. month period beginning July 1 of one maturity Treasury yield, as published by year and ending June 30 of the following the Board of Governors of the Federal Catalog of Federal Domestic Assistance year. Reserve System on the last day of the (CFDA) Number: 84.032. Under section 427A(l) of the HEA, calendar week ending on or before June SUMMARY: In accordance with section FFEL Program loans first disbursed on 26 of each year, plus a statutory add-on 427A of the Higher Education Act of or after July 1, 2006, and before July 1, percentage. The calculated rate is 1965, as amended, (HEA), 20 U.S.C. 2010, have a fixed interest rate. The capped by a maximum interest rate. The 1077a, the Chief Operating Officer for Chief Operating Officer is discontinuing weekly average of the one-year constant Federal Student Aid announces the providing the fixed interest rates for maturity Treasury yield published on variable interest rates for the period July FFEL Program loans first disbursed on June 27, 2016, which is used to 1, 2016, through June 30, 2017, for or after July 1, 2006 and before July 1, calculate the interest rate on these loans, certain loans made under the Federal 2010. Interest rates for these loans may is 0.55 percent. be found in a Federal Register notice Family Education Loan (FFEL) Program. This notice includes three charts published on September 15, 2015 (80 FR The Chief Operating Officer takes this containing specific information on the 55342). action to give notice of FFEL Program calculation of variable interest rates for Federal Consolidation Loans made loan variable interest rates to the public. loans made under the FFEL Program: prior to November 13, 1997, and on or DATES: This notice is effective October after October 1, 1998, have a fixed Chart 1 contains information on the 3, 2016. interest rate that is based on the interest rates for Federal Subsidized and FOR FURTHER INFORMATION CONTACT: weighted average of the loans that are Unsubsidized Stafford Loans that were Rene Tiongquico, U.S. Department of consolidated. made as fixed-rate loans, but were Education, 830 First Street NE., 11th Interest rates for Federal subsequently converted to variable-rate Floor, Washington, DC 20202. Consolidation Loans made between loans. Telephone: (202) 377–4270 or by email: November 13, 1997 and September 30, Chart 2 contains information on the [email protected]. 1998 are provided in Chart 3. interest rates for variable-rate Federal If you use a telecommunications FFEL variable interest rates are based Subsidized and Unsubsidized Stafford device for the deaf (TDD) or a text on formulas that use the bond Loans. telephone (TTY), call the Federal Relay equivalent rate of the 91-day Treasury Chart 3 contains information on the Service (FRS), toll free, at 1–800–877– bills auctioned at the final auction held interest rates for variable-rate Federal 8339. before June 1 of each year plus a PLUS Loans, certain Federal Individuals with disabilities can statutorily established add-on. These Consolidation Loans, and Consolidation obtain this document in an accessible formulas apply to: All Federal Loans that include loans made by the format (e.g., braille, large print, Subsidized and Unsubsidized Stafford U.S. Department of Health and Human audiotape, or compact disc) on request Loans first disbursed before October 1, Services under subpart I of part A of to the contact person listed under FOR 1992, that have been converted to title VII of the Public Health Service FURTHER INFORMATION CONTACT. variable rate loans; all Federal Act.
CHART 1—‘‘CONVERTED’’ VARIABLE-RATE FEDERAL SUBSIDIZED AND UNSUBSIDIZED STAFFORD LOANS INTEREST RATES IN EFFECT FOR THE PERIOD 7/1/2016 THROUGH 6/30/2017
Cohort Max. rate 91-Day T-bill Margin Total rate First disbursed on First disbursed Original fixed interest rate (%) rate (%) (%) or after before (%)
7/1/1988 ...... 7/23/1992 8.00%, increasing to 10.00% ...... 10.00 0.35 3.25 3.60 7/23/1992 ...... 10/1/1992 8.00%, increasing to 10.00% ...... 10.00 0.35 3.25 3.60 7/23/1992 ...... 7/1/1994 7.00% ...... 7.00 0.35 3.10 3.45 7/23/1992 ...... 7/1/1994 8.00% ...... 8.00 0.35 3.10 3.45 7/23/1992 ...... 7/1/1994 9.00% ...... 9.00 0.35 3.10 3.45
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CHART 1—‘‘CONVERTED’’ VARIABLE-RATE FEDERAL SUBSIDIZED AND UNSUBSIDIZED STAFFORD LOANS INTEREST RATES IN EFFECT FOR THE PERIOD 7/1/2016 THROUGH 6/30/2017—Continued
Cohort Max. rate 91-Day T-bill Margin Total rate First disbursed on First disbursed Original fixed interest rate (%) rate (%) (%) or after before (%)
7/23/1992 ...... 7/1/1994 8.00%, increasing to 10.00% ...... 10.00 0.35 3.10 3.45 Note: The FFEL Program loans represented by the second row of the chart were only made to ‘‘new borrowers’’ on or after July 23, 1992. Whether the FFEL Program loans represented by the third through sixth rows of the chart were made to a specific borrower depends on the in- terest rate on the borrower’s existing loans (see the ‘Original Fixed Interest Rate’ column in Chart 1) at the time the borrower received the loan(s) on or after July 23, 1992 and prior to July 1, 1994.
In Charts 2 and 3, a dagger following of enrollment for which the loan was ‘‘beginning on or after’’ the date in the a date in a cohort field indicates that the intended either ‘‘ending before’’ or cohort field. trigger for the rate to apply is a period
CHART 2—VARIABLE-RATE FEDERAL SUBSIDIZED AND UNSUBSIDIZED STAFFORD LOANS INTEREST RATES IN EFFECT FOR THE PERIOD 7/1/2016 THROUGH 6/30/2017
Cohort Margin Total rate Max. rate 91-Day T-bill In-school, In-school, First disbursed on or First disbursed (%) rate grace, All other grace, All other after before (%) deferment periods deferment periods (%) (%) (%) (%)
10/1/1992 ...... 7/1/1994 9.00 0.35 3.10 3.10 3.45 3.45 7/1/1994 ...... 7/1/1994 † 9.00 0.35 3.10 3.10 3.45 3.45 7/1/1994 ...... 7/1/1995 8.25 0.35 3.10 3.10 3.45 3.45 7/1/1995 ...... 7/1/1998 8.25 0.35 2.50 3.10 2.85 3.45 7/1/1998 ...... 7/1/2006 8.25 0.35 1.70 2.30 2.05 2.65 Note: The FFEL Program loans represented in the first row in Chart 2 were only made to ‘‘new borrowers’’ on or after October 1, 1992. The FFEL Program loans represented in the second row in Chart 2 were only made to ‘‘new borrowers’’ on or after July 1, 1994. The FFEL Program loans represented in the third row in Chart 2 must—in addition to having been first disbursed on or after July 1, 1994, and before July 1, 1995— have been made for a period of enrollment that began on or included July 1, 1994.
CHART 3—VARIABLE-RATE FEDERAL PLUS, SLS, AND CONSOLIDATION LOANS INTEREST RATES IN EFFECT FOR THE PERIOD 7/1/2016 THROUGH 6/30/2017
Cohort Index rate Max. rate 1-Year Margin Total rate Loan type First First (%) 91-Day constant (%) (%) disbursed disbursed T-bill rate treasury on or after before (%) maturity
PLUS and SLS ...... 10/1/1992 12.00 ...... 0.55 3.25 3.80 SLS ...... 10/1/1992 † 7/1/1994 11.00 ...... 0.55 3.10 3.65 PLUS ...... 10/1/1992 7/1/1994 10.00 ...... 0.55 3.10 3.65 PLUS ...... 7/1/1994 7/1/1998 9.00 ...... 0.55 3.10 3.65 PLUS ...... 7/1/1998 7/1/2006 9.00 0.35 ...... 3.10 3.45 Average of the bond equivalent Application Application Max. rate 91-Day T-bill rates of Margin Total rate Loan type received on received (%) rate the 91-Day (%) (%) or after before (%) T-bill for the quarter prior to July 1
Consolidation ...... 11/13/1997 10/1/1998 8.25 0.35 ...... 3.10 3.45 HHS Portion of Consoli- dation ...... 11/13/1997 ...... 0.27 3.00 3.27
The last row in Chart 3 refers to title VII of the Public Health Service Electronic Access to This Document: portions of Federal Consolidation Loans Act. The official version of this document is attributable to loans made by the U.S. Note: No new loans have been made the document published in the Federal Department of Health and Human under the FFEL Program since June 30, Register. Free Internet access to the Services under subpart I of part A of 2010. official edition of the Federal Register and the Code of Federal Regulations is
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available via the Federal Digital System accepted. Written requests for to apply for funding under Title III, Part at: www.gpo.gov/fdsys. At this site you information or comments submitted by A and Title V of the Higher Education can view this document, as well as all postal mail or delivery should be Act of 1965, as amended. An institution other documents of this Department addressed to the Director of the must apply to the Secretary to be published in the Federal Register, in Information Collection Clearance designated as an eligible institution. The text or Adobe Portable Document Division, U.S. Department of Education, programs authorized include the Format (PDF). To use PDF you must 400 Maryland Avenue SW., LBJ, Room Strengthening Institutions, Alaskan have Adobe Acrobat Reader, which is 2E–347, Washington, DC 20202–4537. Native and Native Hawaiian-Serving available free at the site. FOR FURTHER INFORMATION CONTACT: For Institutions, Asian-American and Native You may also access documents of the specific questions related to collection American Pacific Islander-Serving Department published in the Federal activities, please contact Jason Cottrell, Institutions, Native American Serving Register by using the article search 202–453–7530. Institutions, Hispanic-Serving feature at: www.federalregister.gov. SUPPLEMENTARY INFORMATION: The Institutions, Hispanic-Serving Specifically, through the advanced Department of Education (ED), in Institutions (Science, Technology, search feature at this site, you can limit accordance with the Paperwork Engineering and Math and Articulation), your search to documents published by Reduction Act of 1995 (PRA) (44 U.S.C. Promoting Postbaccalaureate the Department. 3506(c)(2)(A)), provides the general Opportunities for Hispanic Americans, Program Authority: 20 U.S.C. 1071 et seq. public and Federal agencies with an and Predominantly Black Institutions Dated: September 27, 2016. opportunity to comment on proposed, Programs. These programs award James W. Runcie, revised, and continuing collections of discretionary grants to eligible information. This helps the Department Chief Operating Officer, Federal Student Aid. institutions of higher education so that assess the impact of its information [FR Doc. 2016–23766 Filed 9–30–16; 8:45 am] they might increase their self- collection requirements and minimize sufficiency by improving academic BILLING CODE 4000–01–P the public’s reporting burden. It also programs, institutional management and helps the public understand the fiscal stability. DEPARTMENT OF EDUCATION Department’s information collection requirements and provide the requested This collection of information is [Docket No.: ED–2016–ICCD–0103] data in the desired format. ED is gathered electronically by the soliciting comments on the proposed Department for the purpose of Agency Information Collection information collection request (ICR) that determining an institution’s eligibility Activities; Submission to the Office of is described below. The Department of to participate in the Title III and Title Management and Budget for Review Education is especially interested in V programs based on its enrollment of and Approval; Comment Request; public comment addressing the needy students and low average Designation as an Eligible Institution following issues: (1) Is this collection educational and general (E&G) Under the Title III and Title V Programs necessary to the proper functions of the expenditures per full-time equivalent and To Request a Waiver of the Non- Department; (2) will this information be undergraduate student. This collection Federal Cost Share Reimbursement processed and used in a timely manner; also allows an institution to request a (1894–0001) (3) is the estimate of burden accurate; waiver of certain non-Federal cost-share (4) how might the Department enhance requirements under Federal Work-Study AGENCY: Office of Postsecondary the quality, utility, and clarity of the Program, Federal Supplemental Education (OPE), Department of information to be collected; and (5) how Educational Opportunity Grant, Student Education (ED). might the Department minimize the Support Services Program and the ACTION: Notice. burden of this collection on the Undergraduate International Studies respondents, including through the use and Foreign Language Program. SUMMARY: In accordance with the of information technology. Please note The collection is paired with a Paperwork Reduction Act of 1995 (44 that written comments received in U.S.C. chapter 3501 et seq.), ED is computational exercise that results in response to this notice will be the simultaneous publication of an proposing an extension of an existing considered public records. information collection. Eligibility Matrix, a listing of Title of Collection: Designation As An postsecondary institutions potentially DATES: Interested persons are invited to Eligible Institution Under the Title III submit comments on or before eligible to apply for grants in the and Title V Programs and to Request A Institutional Service grant programs. November 2, 2016. Waiver of the Non-Federal Cost Share Criteria derived from applicable Reimbursement (1894–0001). ADDRESSES: To access and review all the legislation and regulations are applied OMB Control Number: 1840–0103. documents related to the information to enrollment and financial data from Type of Review: An extension of an collection listed in this notice, please Department sources to determine the existing information collection. use http://www.regulations.gov by eligibility of each institution for each Respondents/Affected Public: State, searching the Docket ID number ED– program. Only those institutions that 2016–ICCD–0103. Comments submitted Local, and Tribal Governments; Private either do not meet the financial criteria in response to this notice should be Sector. or do not appear in the eligibility matrix submitted electronically through the Total Estimated Number of Annual need to go through the application Federal eRulemaking Portal at http:// Responses: 250. process. www.regulations.gov by selecting the Total Estimated Number of Annual Docket ID number or via postal mail, Burden Hours: 1,750. The results of the application process commercial delivery, or hand delivery. Abstract: This collection of are a determination of eligibility for Please note that comments submitted by information is necessary in order for the grant application and waiver, and fax or email and those submitted after Secretary of Education to designate an updated information on institutional the comment period will not be institution of higher education eligible eligibility which is added to the EM.
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Dated: September 28, 2016. Floor, Washington, DC 20202. loan depends on the date of the first Kate Mullan, Telephone: (202) 377–4270 or by email: disbursement of the loan or, for some Acting Director, Information Collection [email protected]. Direct Consolidation Loans, the date the Clearance Division, Office of the Chief Privacy If you use a telecommunications application for the loan was received. Officer, Office of Management. device for the deaf (TDD) or a text The variable rates are determined [FR Doc. 2016–23775 Filed 9–30–16; 8:45 am] telephone (TTY), call the Federal Relay annually and are effective for each 12- BILLING CODE 4000–01–P Service (FRS), toll free, at 1–800–877– month period beginning July 1 of one 8339. year and ending June 30 of the following Individuals with disabilities can year. DEPARTMENT OF EDUCATION obtain this document in an accessible Except for Direct PLUS Loans that format (e.g., Braille, large print, were first disbursed before July 1, 1998, Annual Notice of Interest Rates for audiotape, or compact disc) on request the variable interest rates for most types Federal Student Loans Made Under the to the contact person listed under FOR of Direct Loans are based on formulas William D. Ford Federal Direct Loan FURTHER INFORMATION CONTACT. that use the bond equivalent rates of the Program Prior to July 1, 2013 SUPPLEMENTARY INFORMATION: Section 91-day Treasury bills auctioned at the AGENCY: Federal Student Aid, 455(b) of the Higher Education Act of final auction held before June 1 of each 1965, as amended (HEA) (20 U.S.C. Department of Education. year, plus a statutory add-on percentage. 1087e(b)), specifies the interest rates ACTION: Notice. In each case, the calculated rate is charged to borrowers for Federal Direct capped by a maximum interest rate. The Subsidized Stafford/Ford Loans (Direct Catalog of Federal Domestic Assistance bond equivalent rate of the 91-day Subsidized Loans), Federal Direct (CFDA) Number: 84.268. Treasury bills auctioned on May 31, Unsubsidized Stafford/Ford Loans 2016, which is used to calculate the DATES: This notice is effective October (Direct Unsubsidized Loans), Federal interest rates on these loans, is 0.345, 3, 2016. Direct PLUS Loans (Direct PLUS Loans), rounded up to 0.35 percent. SUMMARY: In accordance with section and Federal Direct Consolidation Loans 455(b)(10) of the Higher Education Act (Direct Consolidation Loans), The interest rate for Direct PLUS of 1965, as amended, (HEA), (20 U.S.C. collectively referred to as ‘‘Direct Loans that were first disbursed on or 1087e(b)(10)) the Chief Operating Loans.’’ The interest rates for Direct after July 1, 1994, and before July 1, Officer for Federal Student Aid Loans may be variable or fixed. 1998, is based on the weekly average of announces the interest rates for loans the one-year constant maturity Treasury made under the William D. Ford Federal Variable-Rate Direct Loans yield, as published by the Board of Direct Loan (Direct Loan) Program prior Direct Subsidized Loans, Direct Governors of the Federal Reserve to July 1, 2013. For loans that have a Unsubsidized Loans, and Direct PLUS System on the last day of the calendar variable interest rate, the rates Loans that were first disbursed before week ending on or before June 26 of announced in this notice are in effect for July 1, 2006, and Direct Consolidation each year, plus a statutory add-on the period July 1, 2016 through June 30, Loans for which the application was percentage. The calculated rate is 2017. The Chief Operating Officer takes received before February 1, 1999, have capped by a maximum interest rate. The this action to give notice of Direct Loan variable interest rates that are weekly average of the one-year constant interest rates to the public. determined each year in accordance maturity Treasury yield published on FOR FURTHER INFORMATION CONTACT: with formulas specified in section June 27, 2016, which is used to Rene Tiongquico, U.S. Department of 455(b) of the HEA. The variable interest calculate the interest rate on these loans, Education, 830 First Street NE., 11th rate formula that applies to a particular is 0.55 percent.
CHARTS 1 THROUGH 4 IN THIS NOTICE SHOW THE INTEREST RATES FOR VARIABLE-RATE DIRECT LOANS THAT ARE IN EFFECT FOR THE PERIOD JULY 1, 2016 THROUGH JUNE 30, 2017
Cohort Index rate Margin Total rate Maximum rate In-school, First disbursed on First disbursed (%) 91-Day In-school, All other grace, All other or after before T-Bill rate grace, periods deferment periods (%) deferment (%) (%) (%)
7/1/1994 ...... 7/1/1995 ...... 8.25 0.35 3.10 3.10 3.45 3.45 7/1/1995 ...... 7/1/1998 ...... 8.25 0.35 2.50 3.10 2.85 3.45 7/1/1998 ...... 7/1/2006 ...... 8.25 0.35 1.70 2.30 2.05 2.65
CHART 2—VARIABLE-RATE DIRECT PLUS LOANS INTEREST RATES IN EFFECT FOR THE PERIOD 7/1/2016 THROUGH 6/30/ 2017
Cohort Index rate Maximum rate 1-Year constant Margin Total rate First disbursed on First disbursed (%) 91-Day T-Bill rate treasury maturity (%) (%) or after before (%) (%)
7/1/1994 ...... 7/1/1998 ...... 9.00 ...... 0.55 3.10 3.65 7/1/1998 ...... 7/1/2006 ...... 9.00 0.35 ...... 3.10 3.45
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CHART 3—VARIABLE-RATE DIRECT SUBSIDIZED AND DIRECT UNSUBSIDIZED CONSOLIDATION LOANS INTEREST RATES IN EFFECT FOR THE PERIOD 7/1/2016 THROUGH 6/30/2017
Cohort Index rate Margin Total rate Maxmum In-school, In-school, rate 91-Day grace, All other grace, All other First disbursed on or after First disbursed before (%) T-Bill rate deferment periods deferment periods (%) (%) (%) (%) (%)
7/1/1994 ...... 7/1/1995 ...... 8.25 0.35 3.10 3.10 3.45 3.45 7/1/1995 ...... 7/1/1998 ...... 8.25 0.35 2.50 3.10 2.85 3.45 7/1/1998 ...... 10/1/1998 ...... 8.25 0.35 1.70 2.30 2.05 2.65
First disbursed on or Application received after before
10/1/1998 ...... 10/1/1998 ...... 8.25 0.35 1.70 2.30 2.05 2.65%
Application received on or Application received after before
10/1/1998 ...... 2/1/1999 ...... 8.25 0.35 2.30 2.30 2.65 2.65
CHART 4—VARIABLE-RATE DIRECT PLUS CONSOLIDATION LOANS INTEREST RATES IN EFFECT FOR THE PERIOD 7/1/2016 THROUGH 6/30/2017
Cohort Index rate Margin Total rate Maximum 1-Year rate 91-Day constant In-school, All other In-school, All other First disbursed on or after First disbursed before (%) T-Bill rate treasury grace, periods race, periods (%) maturity deferment (%) deferment (%) (%) (%) (%)
7/1/1994 ...... 7/1/1998 ...... 9.00 ...... 0.55 3.10 3.10 3.65 3.65 7/1/1998 ...... 10/1/1998 ...... 9.00 0.35 ...... 3.10 3.10 3.45 3.45
First disbursed on or after Application received before
10/1/1998 ...... 10/1/1998 ...... 9.00 0.35 ...... 3.10 3.10 3.45 3.45
Application received Application received on or after before
10/1/1998 ...... 2/1/1999 ...... 8.25 0.35 ...... 2.30 2.30 2.65 2.65
Fixed-Rate Direct Loans 2006 and before July 1, 2013 have the weighted average of the loans that various fixed interest rates that are are consolidated, rounded up to the Direct Subsidized Loans, Direct specified in section 455(b)(7) of the nearest higher 1⁄8 of one percent, but the Unsubsidized Loans, and Direct PLUS HEA. These fixed rates are shown in rate may not exceed 8.25 percent. Loans first disbursed on or after July 1, Chart 5. Chart 5 shows the fixed interest rates 2006 and before July 1, 2013, and Direct Direct Consolidation Loans for which Consolidation Loans for which the the application was received on or after for Direct Subsidized Loans, Direct application was received on or after February 1, 1999 and before July 1, 2013 Unsubsidized Loans, and Direct PLUS February 1, 1999, have fixed interest have a fixed interest rate that is Loans first disbursed before July 1, rates. determined in accordance with sections 2013, and for Direct Consolidation Direct Subsidized Loans, Direct 455(b)(6)(D) and 455(b)(7)(C) of the Loans for which the application was Unsubsidized Loans, and Direct PLUS HEA. The fixed interest rate for these received on or after February 1, 1999 Loans first disbursed on or after July 1, Direct Consolidation Loans is equal to and before July 1, 2013.
CHART 5—FIXED-RATE DIRECT SUBSIDIZED, DIRECT UNSUBSIDIZED, DIRECT PLUS LOANS, AND DIRECT CONSOLIDATION LOANS FIRST DISBURSED ONORAFTER 7/1/2006 AND BEFORE 7/1/2013
Rate Loan type Student grade level First disbursed on or after First disbursed before (%)
Subsidized ...... Undergraduates ...... 7/1/2006 ...... 7/1/2008 ...... 6.80 Subsidized ...... Undergraduates ...... 7/1/2008 ...... 7/1/2009 ...... 6.00 Subsidized ...... Undergraduates ...... 7/1/2009 ...... 7/1/2010 ...... 5.60 Subsidized ...... Undergraduates ...... 7/1/2010 ...... 7/1/2011 ...... 4.50 Subsidized ...... Undergraduates ...... 7/1/2011 ...... 7/1/2013 ...... 3.40 Subsidized ...... Graduate/Professional Stu- 7/1/2006 ...... 7/1/2012 ...... 6.80 dents. Unsubsidized ...... All ...... 7/1/2006 ...... 7/1/2013 ...... 6.80
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CHART 5—FIXED-RATE DIRECT SUBSIDIZED, DIRECT UNSUBSIDIZED, DIRECT PLUS LOANS, AND DIRECT CONSOLIDATION LOANS FIRST DISBURSED ONORAFTER 7/1/2006 AND BEFORE 7/1/2013—Continued
Rate Loan type Student grade level First disbursed on or after First disbursed before (%)
PLUS ...... Parents and Graduate/Pro- 7/1/2006 ...... 7/1/2013 ...... 7.90 fessionals.
Application received on or Application received before after
Consolidation ...... N/A ...... 2/1/1999 ...... 7/1/2013 ...... Weighted average of rates on the loans being con- solidated, rounded to nearest higher 1⁄8 of 1 percent, not to exceed 8.25% 7/1/2013 ...... Weighted average of rates on the loans being con- solidated, rounded to nearest higher 1⁄8 of 1 percent
Note: Interest rates for Direct Subsidized Dated: September 27, 2016. The refund effective date in Docket Loans, Direct Unsubsidized Loans, and Direct James W. Runcie, No. EL16–116–000, established PLUS Loans first disbursed on or after July Chief Operating Officer, Federal Student Aid. pursuant to section 206(b) of the FPA, 1, 2013 and before July 1, 2016 are published will be the date of publication of this in earlier Federal Register notices, as [FR Doc. 2016–23767 Filed 9–30–16; 8:45 am] follows: BILLING CODE 4000–01–P notice in the Federal Register. Any interested person desiring to be • For loans first disbursed on or after heard in Docket No. EL16–116–000 July 1, 2013, and prior to July 1, 2014, must file a notice of intervention or see 78 FR 59011. DEPARTMENT OF ENERGY motion to intervene, as appropriate, with the Federal Energy Regulatory • For loans first disbursed on or after Federal Energy Regulatory Commission, 888 First Street NE., July 1, 2014, and prior to July 1, 2015, Commission Washington, DC 20426, in accordance see 79 FR 37301. [Docket No. EL16–116–000] with Rule 214 of the Commission’s • For loans first disbursed on or after Rules of Practice and Procedure, 18 CFR July 1, 2015, and prior to July 1, 2016, Notice of Institution of Section 206 385.214 (2016), within 21 days of the see 80 FR 42488. Proceeding and Refund Effective Date date of issuance of the order. • For loans first disbursed on or after Kimberly D. Bose, July 1, 2016, and prior to July 1, 2017, Talen Energy Marketing, LLC, Montour, Secretary. see 81 FR 38159. LLC, Bayonne Plant Holding, L.L.C., Camden Plant Holdings, L.L.C., Elmwood Park Power, [FR Doc. 2016–23816 Filed 9–30–16; 8:45 am] Electronic Access to This Document: LLC, Newark Bay Cogeneration Partnership, BILLING CODE 6717–01–P The official version of this document is L.P., Lower Mount Bethel Energy, LLC, York the document published in the Federal Generation Company LLC, Pedricktown Register. Free Internet access to the Cogeneration Company LP, H.A. Wagner DEPARTMENT OF ENERGY official edition of the Federal Register LLC, Brandon Shores LLC, Chief Conemaugh Power, LLC, Chief Keystone Power, LLC and the Code of Federal Regulations is Federal Energy Regulatory available via the Federal Digital System On September 27, 2016, the Commission at: www.gpo.gov/fdsys. At this site you Commission issued an order in Docket [Docket No. ER16–2654–000] can view this document, as well as all No. EL16–116–000, pursuant to section other documents of this Department 206 of the Federal Power Act (FPA), 16 City Point Energy Center, LLC; published in the Federal Register, in U.S.C. 824e (2012), instituting an Supplemental Notice That Initial text or Adobe Portable Document investigation into the justness and Market-Based Rate Filing Includes Format (PDF). To use PDF you must reasonableness of the Talen Entities’,1 Request for Blanket Section 204 have Adobe Acrobat Reader, which is Chief Keystone Power, LLC’s, and Chief Authorization available free at the site. Conemaugh Power, LLC’s Reactive Service revenue requirements. Talen This is a supplemental notice in the You may also access documents of the above-referenced proceeding of City Department published in the Federal Energy Marketing, LLC et al., 156 FERC ¶ 61,231 (2016). Point Energy Center, LLC’s application Register by using the article search for market-based rate authority, with an feature at: www.federalregister.gov. accompanying rate tariff, noting that Specifically, through the advanced 1 Talen Energy Marketing, LLC, Montour, LLC (Montour), Bayonne Plant Holding, L.L.C., Camden such application includes a request for search feature at this site, you can limit Plant Holding, L.L.C., Elmwood Park Power, LLC, blanket authorization, under 18 CFR your search to documents published by Newark Bay Cogeneration Partnership, L.P., Lower part 34, of future issuances of securities the Department. Mount Bethel Energy, LLC, York Generation Company LLC, Pedricktown Cogeneration Company and assumptions of liability. Program Authority: 20 U.S.C. 1087 et LP, H.A. Wagner LLC, Brandon Shores LLC Any person desiring to intervene or to seq. (collectively, Talen Entities). protest should file with the Federal
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Energy Regulatory Commission, 888 DEPARTMENT OF ENERGY docket(s). For assistance with any FERC First Street NE., Washington, DC 20426, Online service, please email in accordance with Rules 211 and 214 Federal Energy Regulatory [email protected]. or call of the Commission’s Rules of Practice Commission (866) 208–3676 (toll free). For TTY, call and Procedure (18 CFR 385.211 and [Docket No. ER16–2653–000] (202) 502–8659. 385.214). Anyone filing a motion to Dated: September 27, 2016. intervene or protest must serve a copy Cimarron Bend Wind Project I, LLC; Nathaniel J. Davis, Sr., Supplemental Notice That Initial of that document on the Applicant. Deputy Secretary. Market-Based Rate Filing Includes Notice is hereby given that the Request for Blanket Section 204 [FR Doc. 2016–23847 Filed 9–30–16; 8:45 am] deadline for filing protests with regard Authorization BILLING CODE 6717–01–P to the applicant’s request for blanket authorization, under 18 CFR part 34, of This is a supplemental notice in the future issuances of securities and above-referenced proceeding of DEPARTMENT OF ENERGY assumptions of liability, is October 17, Cimarron Bend Wind Project I, LLC’s Federal Energy Regulatory 2016. application for market-based rate authority, with an accompanying rate Commission The Commission encourages tariff, noting that such application [Project No. 13642–003] electronic submission of protests and includes a request for blanket interventions in lieu of paper, using the authorization, under 18 CFR part 34, of GB Energy Park, LLC; Notice of FERC Online links at http:// future issuances of securities and Availability of Environmental www.ferc.gov. To facilitate electronic assumptions of liability. Assessment service, persons with Internet access Any person desiring to intervene or to who will eFile a document and/or be protest should file with the Federal In accordance with the National listed as a contact for an intervenor Energy Regulatory Commission, 888 Environmental Policy Act of 1969 and must create and validate an First Street NE., Washington, DC 20426, the Federal Energy Regulatory eRegistration account using the in accordance with Rules 211 and 214 Commission’s (Commission) eRegistration link. Select the eFiling of the Commission’s Rules of Practice regulations, 18 CFR part 380, the Office link to log on and submit the and Procedure (18 CFR 385.211 and of Energy Projects has reviewed the application for an original license for intervention or protests. 385.214). Anyone filing a motion to intervene or protest must serve a copy the proposed 400-megawatt Gordon Persons unable to file electronically of that document on the Applicant. Butte Pumped Storage Project, which should submit an original and 5 copies Notice is hereby given that the would be located approximately 3 miles of the intervention or protest to the deadline for filing protests with regard west of the town of Martinsdale in Federal Energy Regulatory Commission, to the applicant’s request for blanket Meagher County, Montana, and has 888 First Street NE., Washington, DC authorization, under 18 CFR part 34, of prepared an Environmental Assessment 20426. future issuances of securities and (EA) for the project. The project would The filings in the above-referenced assumptions of liability, is October 17, not occupy any federal lands. proceeding are accessible in the 2016. The EA contains staff’s analysis of the Commission’s eLibrary system by The Commission encourages potential environmental impacts of clicking on the appropriate link in the electronic submission of protests and construction and operation of the project and concludes that licensing the above list. They are also available for interventions in lieu of paper, using the project, with appropriate environmental electronic review in the Commission’s FERC Online links at http:// measures, would not constitute a major Public Reference Room in Washington, www.ferc.gov. To facilitate electronic federal action that would significantly DC. There is an eSubscription link on service, persons with Internet access who will eFile a document and/or be affect the quality of the human the Web site that enables subscribers to listed as a contact for an intervenor environment. Based on a review of the receive email notification when a must create and validate an comments received in response to the document is added to a subscribed eRegistration account using the issuance of this EA, the Commission docket(s). For assistance with any FERC eRegistration link. Select the eFiling may issue a final EA. Online service, please email link to log on and submit the A copy of the EA is available for [email protected]. or call intervention or protests. review at the Commission in the Public (866) 208–3676 (toll free). For TTY, call Persons unable to file electronically Reference Room or may be viewed on (202) 502–8659. should submit an original and 5 copies the Commission’s Web site at http:// Dated: September 27, 2016. of the intervention or protest to the www.ferc.gov using the ‘‘eLibrary’’ link. Enter the docket number excluding the Nathaniel J. Davis, Sr., Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC last three digits in the docket number Deputy Secretary. 20426. field to access documents. For [FR Doc. 2016–23848 Filed 9–30–16; 8:45 am] The filings in the above-referenced assistance, contact FERC Online BILLING CODE 6717–01–P proceeding are accessible in the Support at FERCOnlineSupport@ Commission’s eLibrary system by ferc.gov, (866) 208–3676 (toll free), or clicking on the appropriate link in the (202) 502–8659 (TTY). above list. They are also available for You may also register online at http:// electronic review in the Commission’s www.ferc.gov/docs-filing/ Public Reference Room in Washington, esubscription.asp to be notified via DC. There is an eSubscription link on email of new filings and issuances the Web site that enables subscribers to related to this or other pending projects. receive email notification when a For assistance, contact FERC Online document is added to a subscribed Support.
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Any comments should be filed within authorization, under 18 CFR part 34, of authorization, under 18 CFR part 34, of 30 days from the date of this notice. future issuances of securities and future issuances of securities and The Commission strongly encourages assumptions of liability, is October 17, assumptions of liability. electronic filing. Please file comments 2016. Any person desiring to intervene or to using the Commission’s eFiling system The Commission encourages protest should file with the Federal at http://www.ferc.gov/docs-filing/ electronic submission of protests and Energy Regulatory Commission, 888 interventions in lieu of paper, using the efiling.asp. Commenters can submit First Street NE., Washington, DC 20426, brief comments up to 6,000 characters, FERC Online links at http:// in accordance with Rules 211 and 214 without prior registration, using the www.ferc.gov. To facilitate electronic of the Commission’s Rules of Practice eComment system at http:// service, persons with Internet access and Procedure (18 CFR 385.211 and www.ferc.gov/docs-filing/ who will eFile a document and/or be 385.214). Anyone filing a motion to ecomment.asp. You must include your listed as a contact for an intervenor intervene or protest must serve a copy name and contact information at the end must create and validate an of that document on the Applicant. of your comments. For assistance, eRegistration account using the please contact FERC Online Support. In eRegistration link. Select the eFiling Notice is hereby given that the lieu of electronic filing, please send a link to log on and submit the deadline for filing protests with regard paper copy to: Secretary, Federal Energy intervention or protests. to the applicant’s request for blanket Regulatory Commission, 888 First Street Persons unable to file electronically authorization, under 18 CFR part 34, of NE., Washington, DC 20426. The first should submit an original and 5 copies future issuances of securities and page of any filing should include docket of the intervention or protest to the assumptions of liability, is October 17, number P–13642–003. Federal Energy Regulatory Commission, 2016. For further information, contact Mike 888 First Street NE., Washington, DC The Commission encourages Tust at (202) 502–6522. 20426. electronic submission of protests and Dated: September 27, 2016. The filings in the above-referenced interventions in lieu of paper, using the proceeding are accessible in the Kimberly D. Bose, FERC Online links at http:// Commission’s eLibrary system by Secretary. www.ferc.gov. To facilitate electronic clicking on the appropriate link in the service, persons with Internet access [FR Doc. 2016–23817 Filed 9–30–16; 8:45 am] above list. They are also available for BILLING CODE 6717–01–P who will eFile a document and/or be electronic review in the Commission’s listed as a contact for an intervenor Public Reference Room in Washington, must create and validate an DC. There is an eSubscription link on DEPARTMENT OF ENERGY eRegistration account using the the Web site that enables subscribers to eRegistration link. Select the eFiling receive email notification when a Federal Energy Regulatory link to log on and submit the document is added to a subscribed Commission intervention or protests. docket(s). For assistance with any FERC [Docket No. ER16–2501–000] Online service, please email Persons unable to file electronically [email protected]. or call should submit an original and 5 copies Nicolis, LLC; Supplemental Notice That (866) 208–3676 (toll free). For TTY, call of the intervention or protest to the Initial Market-Based Rate Filing (202) 502–8659. Federal Energy Regulatory Commission, Includes Request for Blanket Section 888 First Street NE., Washington, DC Dated: September 27, 2016. 204 Authorization 20426. Nathaniel J. Davis, Sr., This is a supplemental notice in the Deputy Secretary. The filings in the above-referenced above-referenced proceeding of Nicolis, [FR Doc. 2016–23845 Filed 9–30–16; 8:45 am] proceeding are accessible in the LLC’s application for market-based rate Commission’s eLibrary system by BILLING CODE 6717–01–P authority, with an accompanying rate clicking on the appropriate link in the tariff, noting that such application above list. They are also available for includes a request for blanket DEPARTMENT OF ENERGY electronic review in the Commission’s authorization, under 18 CFR part 34, of Public Reference Room in Washington, future issuances of securities and Federal Energy Regulatory DC. There is an eSubscription link on assumptions of liability. Commission the Web site that enables subscribers to Any person desiring to intervene or to receive email notification when a protest should file with the Federal [Docket No. ER16–2502–000] document is added to a subscribed Energy Regulatory Commission, 888 Tropico, LLC; Supplemental Notice docket(s). For assistance with any FERC First Street NE., Washington, DC 20426, That Initial Market-Based Rate Filing Online service, please email in accordance with Rules 211 and 214 Includes Request for Blanket Section [email protected]. or call of the Commission’s Rules of Practice 204 Authorization (866) 208–3676 (toll free). For TTY, call and Procedure (18 CFR 385.211 and (202) 502–8659. This is a supplemental notice in the 385.214). Anyone filing a motion to Dated: September 27, 2016. intervene or protest must serve a copy above-referenced proceeding of Tropico, of that document on the Applicant. LLC’s application for market-based rate Nathaniel J. Davis, Sr., Notice is hereby given that the authority, with an accompanying rate Deputy Secretary. deadline for filing protests with regard tariff, noting that such application [FR Doc. 2016–23846 Filed 9–30–16; 8:45 am] to the applicant’s request for blanket includes a request for blanket BILLING CODE 6717–01–P
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DEPARTMENT OF ENERGY Comment Date: 5:00 p.m. Eastern If you are a landowner receiving this Time on October 17, 2016. notice, a pipeline company Federal Energy Regulatory Dated: September 27, 2016. representative may contact you about Commission Kimberly D. Bose, the acquisition of an easement to construct, operate, and maintain the [Docket Nos. EL16–115–000; QF16–362– Secretary. 002; QF16–363–002; QF16–364–002; QF16– proposed facilities. The company would [FR Doc. 2016–23815 Filed 9–30–16; 8:45 am] 365–002; QF16–366–002; QF16–367–002; seek to negotiate a mutually acceptable QF16–368–002; QF16–369–002; QF16–370– BILLING CODE 6717–01–P agreement. However, if the Commission 002; QF16–371–002; QF16–372–002; QF16– approves the project, that approval 373–002; QF16–374–002; QF16–375–002; conveys with it the right of eminent DEPARTMENT OF ENERGY QF16–376–002; QF16–377–002; QF16–378– domain. Therefore, if easement 002; QF16–379–002; QF16–380–002; QF16– 381–002; QF16–382–002; QF16–383–002; Federal Energy Regulatory negotiations fail to produce an QF16–384–002; QF16–385–002; QF16–386– Commission agreement, the pipeline company could 002; QF16–387–002] initiate condemnation proceedings [Docket No. CP16–493–000] where compensation would be Windham Solar LLC; Allco Finance determined in accordance with state Limited; Windham Solar LLC; Notice of Columbia Gas Transmission, LLC.; law. Notice of Intent To Prepare an Amendment of Petition for Columbia provided landowners with Enforcement Environmental Assessment for the Proposed Central Virginia Connector a fact sheet prepared by the FERC Take notice that on September 26, Project and Request for Comments on entitled ‘‘An Interstate Natural Gas 2016, Windham Solar LLC filed an Environmental Issues Facility On My Land? What Do I Need amendment to the September 12, 2016 To Know?’’ This fact sheet addresses a filed petition for enforcement pursuant The staff of the Federal Energy number of typically asked questions, to section 210 of Public Utility Regulatory Commission (FERC or including the use of eminent domain Regulatory Policies Act of 1978 Commission) will prepare an and how to participate in the (PURPA), 16 U.S.C. 824a–3. environmental assessment (EA) that will Commission’s proceedings. It is also Any person desiring to intervene or to discuss the environmental impacts of available for viewing on the FERC Web protest this filing must file in the Central Virginia Connector Project site (www.ferc.gov). involving construction and operation of accordance with Rules 211 and 214 of Public Participation the Commission’s Rules of Practice and facilities by Columbia Gas Procedure (18 CFR 385.211, 385.214). Transmission, L.L.C. (Columbia) in For your convenience, there are three Protests will be considered by the Louisa and Goochland Counties, methods you can use to submit your Commission in determining the Virginia. The Commission will use this comments to the Commission. The appropriate action to be taken, but will EA in its decision-making process to Commission encourages electronic filing not serve to make protestants parties to determine whether the project is in the of comments and has expert staff the proceeding. Any person wishing to public convenience and necessity. available to assist you at (202) 502–8258 become a party must file a notice of This notice announces the opening of or [email protected]. Please carefully intervention or motion to intervene, as the scoping process the Commission follow these instructions so that your appropriate. Such notices, motions, or will use to gather input from the public comments are properly recorded. and interested agencies on the project. protests must be filed on or before the (1) You can file your comments You can make a difference by providing comment date. On or before the electronically using the eComment us with your specific comments or comment date, it is not necessary to feature on the Commission’s Web site concerns about the project. Your serve motions to intervene or protests (www.ferc.gov) under the link to comments should focus on the potential on persons other than the Applicant. Documents and Filings. This is an easy environmental effects, reasonable The Commission encourages method for submitting brief, text-only alternatives, and measures to avoid or electronic submission of protests and comments on a project; interventions in lieu of paper using the lessen environmental impacts. Your ‘‘eFiling’’ link at http://www.ferc.gov. input will help the Commission staff (2) You can file your comments Persons unable to file electronically determine what issues they need to electronically by using the eFiling should submit an original and 5 copies evaluate in the EA. To ensure that your feature on the Commission’s Web site of the protest or intervention to the comments are timely and properly (www.ferc.gov) under the link to Federal Energy Regulatory Commission, recorded, please send your comments so Documents and Filings. With eFiling, 888 First Street NE., Washington, DC that the Commission receives them in you can provide comments in a variety 20426. Washington, DC on or before October of formats by attaching them as a file This filing is accessible on-line at 27, 2016. with your submission. New eFiling http://www.ferc.gov, using the If you sent comments on this project users must first create an account by ‘‘eLibrary’’ link and is available for to the Commission before the opening of clicking on ‘‘eRegister.’’ If you are filing review in the Commission’s Public this docket on August 12, 2016, you will a comment on a particular project, Reference Room in Washington, DC. need to file those comments in Docket please select ‘‘Comment on a Filing’’ as There is an ‘‘eSubscription’’ link on the No. CP16–493–000 to ensure they are the filing type; or Web site that enables subscribers to considered as part of this proceeding. (3) You can file a paper copy of your receive email notification when a This notice is being sent to the comments by mailing them to the document is added to a subscribed Commission’s current environmental following address. Be sure to reference docket(s). For assistance with any FERC mailing list for this project. State and the project docket number (CP16–493– Online service, please email local government representatives should 000) with your submission: Kimberly D. [email protected], or call notify their constituents of this Bose, Secretary, Federal Energy (866) 208–3676 (toll free). For TTY, call proposed project and encourage them to Regulatory Commission, 888 First Street (202) 502–8659. comment on their areas of concern. NE., Room 1A, Washington, DC 20426.
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Summary of the Proposed Project In the EA we will discuss impacts that project-specific Area of Potential Effects Columbia proposes to replace three could occur as a result of the (APE) in consultation with the SHPO as Solar Saturn units with one Solar construction and operation of the the project develops. On natural gas Centaur 50 unit at the existing Louisa proposed project under these general facility projects, the APE at a minimum headings: encompasses all areas subject to ground Compressor Station, convert the • replaced units to standby, increase the geology and soils; disturbance (examples include • land use; construction right-of-way, contractor/ certificated horsepower (HP) at the • water resources, fisheries, and pipe storage yards, compressor stations, Louisa Compressor Station from 4,050 wetlands; and access roads). Our EA for this HP to 6,130 HP, install pipe and valve • cultural resources; project will document our findings on modifications to make the existing point • vegetation and wildlife; the impacts on historic properties and of delivery between Columbia’s • air quality and noise; summarize the status of consultations Mainline VM–108 and VM–109 at • endangered and threatened species; under section 106. Boswell’s Tavern Compressor Station bi- • public safety; and directional, install a new point of • cumulative impacts. Environmental Mailing List delivery meter station adjacent to We will also evaluate reasonable The environmental mailing list Columbia’s Goochland Compressor alternatives to the proposed project or includes federal, state, and local Station, and install other appurtenant portions of the project, and make government representatives and facilities. recommendations on how to lessen or agencies; elected officials; The Central Virginia Connector avoid impacts on the various resource environmental and public interest Project is in Louisa and Goochland areas. groups; Native American Tribes; other Counties, Virginia and would provide The EA will present our independent interested parties; and local libraries 45,000 cubic feet per day of natural gas analysis of the issues. The EA will be and newspapers. This list also includes on its system and modernize available in the public record through all affected landowners (as defined in compression at the Louisa Compressor eLibrary. Depending on the comments the Commission’s regulations) who are Station. received during the scoping process, we potential right-of-way grantors, whose The general location of the project may also publish and distribute the EA property may be used temporarily for facilities is shown in appendix 1.1 to the public for an allotted comment project purposes, or who own homes Land Requirements for Construction period. We will consider all comments within certain distances of aboveground on the EA before making our facilities, and anyone who submits Construction of the proposed facilities recommendations to the Commission. comments on the project. We will would temporarily disturb about 13.3 To ensure we have the opportunity to update the environmental mailing list as acres of land. Following construction, consider and address your comments, the analysis proceeds to ensure that we Columbia Gas would maintain about 0.9 please carefully follow the instructions send the information related to this acre for permanent operation of the in the Public Participation section, environmental review to all individuals, project’s facilities; the remaining beginning on page 2. organizations, and government entities acreage would be restored and revert to With this notice, we are asking interested in and/or potentially affected former uses. agencies with jurisdiction by law and/ by the proposed project. The EA Process or special expertise with respect to the If we publish and distribute the EA, environmental issues of this project to copies of the EA will be sent to the The National Environmental Policy formally cooperate with us in the environmental mailing list for public Act (NEPA) requires the Commission to preparation of the EA.3 Agencies that review and comment. If you would take into account the environmental would like to request cooperating prefer to receive a paper copy of the impacts that could result from an action agency status should follow the document instead of the CD version or whenever it considers the issuance of a instructions for filing comments would like to remove your name from Certificate of Public Convenience and provided under the Public Participation the mailing list, please return the 2 Necessity. NEPA also requires us to section of this notice. attached Information Request (appendix discover and address concerns the 2). public may have about proposals. This Consultations Under Section 106 of the process is referred to as ‘‘scoping.’’ The National Historic Preservation Act Becoming an Intervenor main goal of the scoping process is to In accordance with the Advisory In addition to involvement in the EA focus the analysis in the EA on the Council on Historic Preservation’s scoping process, you may want to important environmental issues. By this implementing regulations for section become an ‘‘intervenor’’ which is an notice, the Commission requests public 106 of the National Historic official party to the Commission’s comments on the scope of the issues to Preservation Act, we are using this proceeding. Intervenors play a more address in the EA. We will consider all notice to initiate consultation with the formal role in the process and are able filed comments during the preparation applicable State Historic Preservation to file briefs, appear at hearings, and be of the EA. Office (SHPO), and to solicit their views heard by the courts if they choose to and those of other government agencies, appeal the Commission’s final ruling. 1 The appendices referenced in this notice would interested Indian tribes, and the public An intervenor formally participates in not appear in the Federal Register. Copies of on the project’s potential effects on the proceeding by filing a request to appendices were sent to all those receiving this historic properties.4 We will define the intervene. Instructions for becoming an notice in the mail and are available at www.ferc.gov intervenor are in the ‘‘Document-less using the link called ‘‘eLibrary’’ or from the Commission’s Public Reference Room, 888 First 3 The Council on Environmental Quality Intervention Guide’’ under the ‘‘e-filing’’ Street NE., Washington, DC 20426, or call (202) regulations addressing cooperating agency link on the Commission’s Web site. 502–8371. For instructions on connecting to responsibilities are at Title 40, Code of Federal eLibrary, refer to the last page of this notice. Regulations, Part 1501.6. historic properties as any prehistoric or historic 2 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the 4 The Advisory Council on Historic Preservation’s district, site, building, structure, or object included environmental staff of the Commission’s Office of regulations are at Title 36, Code of Federal in or eligible for inclusion in the National Register Energy Projects. Regulations, Part 800. Those regulations define of Historic Places.
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Motions to intervene are more fully Accession Number: 20160926–5285. Description: § 205(d) Rate Filing: described at http://www.ferc.gov/ Comments Due: 5 p.m. ET 10/17/16. 20160927_SAP Production Clean Up to resources/guides/how-to/intervene.asp. Take notice that the Commission be effective 1/1/2016. Filed Date: 9/27/16. Additional Information received the following electric rate filings: Accession Number: 20160927–5112. Additional information about the Docket Numbers: ER10–2302–006. Comments Due: 5 p.m. ET 10/18/16. project is available from the Applicants: Public Service Company Docket Numbers: ER16–2674–000. Commission’s Office of External Affairs, of New Mexico. Applicants: Public Service Company at (866) 208–FERC, or on the FERC Web Description: Supplement to December of Colorado. site at www.ferc.gov using the 29, 2015 Public Service Company of Description: § 205(d) Rate Filing: ‘‘eLibrary’’ link. Click on the eLibrary New Mexico submits Triennial Market 20160927_SAP Production Formula link, click on ‘‘General Search’’ and Power Update. [CD being filed under Rate to be effective 4/16/2016. enter the docket number, excluding the separate cover]. Filed Date: 9/27/16. last three digits in the Docket Number Filed Date: 9/27/16. Accession Number: 20160927–5113. field (i.e., CP16–493). Be sure you have Accession Number: 20160927–5084. Comments Due: 5 p.m. ET 10/18/16. selected an appropriate date range. For Comments Due: 5 p.m. ET 10/18/16. Docket Numbers: ER16–2675–000. assistance, please contact FERC Online Docket Numbers: ER10–2633–027; Applicants: AltaGas Pomona Energy Support at [email protected] ER10–2570–027; ER10–2717–027; Storage Inc. or toll free at (866) 208–3676, or for ER10–3140–027; ER13–55–017. Description: Baseline eTariff Filing: TTY, contact (202) 502–8659. The Applicants: Birchwood Power AltaGas Pomona Energy Storage Inc. eLibrary link also provides access to the Partners, L.P., Shady Hills Power MBR Tariff to be effective 10/1/2016. texts of formal documents issued by the Company, L.L.C., EFS Parlin Holdings, Filed Date: 9/27/16. Commission, such as orders, notices, LLC, Inland Empire Energy Center, LLC, Accession Number: 20160927–5137. and rulemakings. Homer City Generation, L.P. Comments Due: 5 p.m. ET 10/18/16. In addition, the Commission offers a Description: Notice of Non-Material The filings are accessible in the free service called eSubscription which Change in Status of the GE Companies. Commission’s eLibrary system by allows you to keep track of all formal Filed Date: 9/26/16. clicking on the links or querying the issuances and submittals in specific Accession Number: 20160926–5219. docket number. dockets. This can reduce the amount of Comments Due: 5 p.m. ET 10/17/16. Any person desiring to intervene or time you spend researching proceedings Docket Numbers: ER16–2669–000. protest in any of the above proceedings by automatically providing you with Applicants: Consumers Energy must file in accordance with Rules 211 notification of these filings, document Company. and 214 of the Commission’s summaries, and direct links to the Description: Initial rate filing: Regulations (18 CFR 385.211 and documents. Go to www.ferc.gov/docs- Blackstart Service to be effective 10/1/ 385.214) on or before 5:00 p.m. Eastern filing/esubscription.asp. 2016. time on the specified comment date. Finally, public meetings or site visits Filed Date: 9/26/16. Protests may be considered, but would be posted on the Commission’s Accession Number: 20160926–5214. intervention is necessary to become a calendar located at www.ferc.gov/ Comments Due: 5 p.m. ET 10/17/16. party to the proceeding. EventCalendar/EventsList.aspx along Docket Numbers: ER16–2670–000. eFiling is encouraged. More detailed with other related information. Applicants: Orange and Rockland information relating to filing Dated: September 27, 2016. Utilities, Inc. requirements, interventions, protests, Kimberly D. Bose, Description: Tariff Cancellation: service, and qualifying facilities filings Secretary. Cancellation of Tariff Identifier ER16– can be found at: http://www.ferc.gov/ [FR Doc. 2016–23818 Filed 9–30–16; 8:45 am] 896 to be effective 12/31/9998. docs-filing/efiling/filing-req.pdf. For BILLING CODE 6717–01–P Filed Date: 9/26/16. other information, call (866) 208–3676 Accession Number: 20160926–5216. (toll free). For TTY, call (202) 502–8659. Comments Due: 5 p.m. ET 10/17/16. Dated: September 27, 2016. DEPARTMENT OF ENERGY Docket Numbers: ER16–2671–000. Nathaniel J. Davis, Sr., Applicants: FirstEnergy Solutions Deputy Secretary. Federal Energy Regulatory Corp. Commission Description: § 205(d) Rate Filing: [FR Doc. 2016–23844 Filed 9–30–16; 8:45 am] Normal filing 2016 to be effective 11/26/ BILLING CODE 6717–01–P Combined Notice of Filings #1 2015. Take notice that the Commission Filed Date: 9/27/16. DEPARTMENT OF ENERGY received the following electric corporate Accession Number: 20160927–5072. filings: Comments Due: 5 p.m. ET 10/18/16. Federal Energy Regulatory Docket Numbers: EC16–192–000. Docket Numbers: ER16–2672–000. Commission Applicants: Boulder Solar II, LLC, Applicants: Georgia Power Company. [Docket No. ER16–2659–000] Avangrid Renewables, LLC. Description: § 205(d) Rate Filing: Description: Joint Application of Amendment of Georgia Power Company Grant Plains Wind, LLC; Supplemental Boulder Solar II, LLC, et. al. for Rate Schedule No. 850 to be effective Notice That Initial Market-Based Rate Authorization of Transaction Under 11/1/2016. Filing Includes Request for Blanket Filed Date: 9/27/16. Section 203 of the FPA, and Requests Section 204 Authorization for Shortened Comment Period, Accession Number: 20160927–5098. Expedited Action, Waivers of Filing Comments Due: 5 p.m. ET 10/18/16. This is a supplemental notice in the Requirements and Confidential Docket Numbers: ER16–2673–000. above-referenced proceeding of Grant Treatment. Applicants: Public Service Company Plains Wind, LLC’s application for Filed Date: 9/26/16. of Colorado. market-based rate authority, with an
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accompanying rate tariff, noting that DEPARTMENT OF ENERGY Filed Date: 9/23/16. such application includes a request for Accession Number: 20160923–5320. blanket authorization, under 18 CFR Federal Energy Regulatory Comments Due: 5 p.m. ET 10/14/16. part 34, of future issuances of securities Commission Docket Numbers: ER16–2661–000. and assumptions of liability. Applicants: Pacific Gas and Electric Combined Notice of Filings #1 Any person desiring to intervene or to Company. protest should file with the Federal Take notice that the Commission Description: § 205(d) Rate Filing: Bay Energy Regulatory Commission, 888 received the following electric corporate Area Rapid Transit District Interconnection Agreement (SA 323) to First Street NE., Washington, DC 20426, filings: be effective 1/1/2017. in accordance with Rules 211 and 214 Docket Numbers: EC16–189–000. Filed Date: 9/23/16. of the Commission’s Rules of Practice Applicants: American Transmission Company LLC. Accession Number: 20160923–5321. and Procedure 18 CFR 385.211 and Comments Due: 5 p.m. ET 10/14/16. 385.214). Anyone filing a motion to Description: Application of American Docket Numbers: ER16–2662–000. intervene or protest must serve a copy Transmission Company LLC for Applicants: Midcontinent of that document on the Applicant. Authority to Acquire Certain Facilities Under Section 203 of the FPA. Independent System Operator, Inc. Notice is hereby given that the Filed Date: 9/23/16. Description: Annual Calculation of deadline for filing protests with regard Accession Number: 20160923–5371. the Cost of New Entry value (‘‘CONE’’) to the applicant’s request for blanket Comments Due: 5 p.m. ET 10/14/16. for each Local Resource Zone (‘‘LRZ’’) authorization, under 18 CFR part 34, of Docket Numbers: EC16–190–000. in the MISO Region of Midcontinent future issuances of securities and Applicants: James River Genco, LLC, Independent System Operator, Inc. assumptions of liability, is October 17, City Point Energy Center, LLC. Filed Date: 9/23/16. 2016. Description: Application for Accession Number: 20160923–5380. Comments Due: 5 p.m. ET 10/14/16. The Commission encourages Authorization Under Section 203 of the electronic submission of protests and Federal Power Act and Request for Docket Numbers: ER16–2663–000. interventions in lieu of paper, using the Expedited Action of James River Genco, Applicants: Alterna Springerville FERC Online links at http:// LLC, et al. LLC. Description: Tariff Cancellation: www.ferc.gov. To facilitate electronic Filed Date: 9/23/16. Accession Number: 20160923–5372. cancellation filing to be effective 9/26/ service, persons with Internet access Comments Due: 5 p.m. ET 10/14/16. 2016. who will eFile a document and/or be Take notice that the Commission Filed Date: 9/26/16. listed as a contact for an intervenor Accession Number: 20160926–5138. must create and validate an received the following electric rate filings: Comments Due: 5 p.m. ET 10/17/16. eRegistration account using the Docket Numbers: ER16–2664–000. eRegistration link. Select the eFiling Docket Numbers: ER16–1335–002. Applicants: PJM Interconnection, Applicants: LDVF1 TEP LLC. link to log on and submit the Description: Tariff Cancellation: intervention or protests. L.L.C. Description: Compliance filing: cancellation filing to be effective 9/26/ Persons unable to file electronically Compliance filing to 8/26/2016 order in 2016. should submit an original and 5 copies Docket No. ER16–1335–000, –001 to be Filed Date: 9/26/16. of the intervention or protest to the effective 8/26/2016. Accession Number: 20160926–5139. Federal Energy Regulatory Commission, Filed Date: 9/26/16. Comments Due: 5 p.m. ET 10/17/16. 888 First Street NE., Washington, DC Accession Number: 20160926–5212. Docket Numbers: ER16–2665–000. 20426. Comments Due: 5 p.m. ET 10/17/16. Applicants: NRG Power Midwest LP. The filings in the above-referenced Docket Numbers: ER16–2659–000. Description: § 205(d) Rate Filing: proceeding are accessible in the Applicants: Grant Plains Wind, LLC. Revised Rate Schedule and Request for Commission’s eLibrary system by Description: Baseline eTariff Filing: Consolidation to be effective 11/1/2016. clicking on the appropriate link in the Application for MBR Authority and Filed Date: 9/26/16. above list. They are also available for Initial Baseline Tariff Filing of Grant Accession Number: 20160926–5143. Comments Due: 5 p.m. ET 10/17/16. electronic review in the Commission’s Plains to be effective 11/1/2016. Public Reference Room in Washington, Filed Date: 9/23/16. Docket Numbers: ER16–2667–000. DC. There is an eSubscription link on Accession Number: 20160923–5319. Applicants: Deerfield Wind Energy, Comments Due: 5 p.m. ET 10/14/16. the Web site that enables subscribers to LLC. receive email notification when a Docket Numbers: ER16–2659–001. Description: Baseline eTariff Filing: Application for Market Based Rate to be document is added to a subscribed Applicants: Grant Plains Wind, LLC. effective 10/7/2016. docket(s). For assistance with any FERC Description: Tariff Amendment: Amendment of Application and Initial Filed Date: 9/26/16. Online service, please email Tariff Baseline Filing of Grant Plains Accession Number: 20160926–5150. [email protected]. or call Wind to be effective 11/1/2016. Comments Due: 5 p.m. ET 10/17/16. (866) 208–3676 (toll free). For TTY, call Filed Date: 9/23/16. Docket Numbers: ER16–2667–001. (202) 502–8659. Accession Number: 20160923–5333. Applicants: Deerfield Wind Energy, Dated: September 27, 2016. Comments Due: 5 p.m. ET 10/14/16. LLC. Nathaniel J. Davis, Sr., Docket Numbers: ER16–2660–000. Description: Tariff Amendment: Deputy Secretary. Applicants: Southwest Power Pool, Amendment to Application for MBR to [FR Doc. 2016–23849 Filed 9–30–16; 8:45 am] Inc. be effective 10/7/2016. Description: § 205(d) Rate Filing: Filed Date: 9/26/16. BILLING CODE 6717–01–P Schedule 1–A Tariff Administration Accession Number: 20160926–5213. Charge to be effective 1/1/2017. Comments Due: 5 p.m. ET 10/17/16.
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Docket Numbers: ER16–2668–000. of receipt and opportunity to comment regulations.gov or email. Clearly mark Applicants: Arizona Public Service on these applications. the part or all of the information that Company. DATES: Comments must be received on you claim to be CBI. For CBI Description: § 205(d) Rate Filing: Rate or before November 2, 2016. information in a disk or CD–ROM that you mail to EPA, mark the outside of the Schedule No. 217, Exhibit B’s to be ADDRESSES: Submit your comments, effective 11/26/2016. identified by docket identification (ID) disk or CD–ROM as CBI and then Filed Date: 9/26/16. number and the file symbol of interest identify electronically within the disk or CD–ROM the specific information that Accession Number: 20160926–5184. as shown in the body of this document, is claimed as CBI. In addition to one Comments Due: 5 p.m. ET 10/17/16. by one of the following methods: complete version of the comment that Take notice that the Commission • Federal eRulemaking Portal: http:// includes information claimed as CBI, a received the following public utility www.regulations.gov. Follow the online copy of the comment that does not holding company filings: instructions for submitting comments. contain the information claimed as CBI Docket Numbers: PH16–14–000. Do not submit electronically any must be submitted for inclusion in the Applicants: UGI Corporation. information you consider to be public docket. Information so marked Description: UGI Corporation submits Confidential Business Information (CBI) will not be disclosed except in or other information whose disclosure is FERC 65–B Waiver Notification, et al. accordance with procedures set forth in Filed Date: 9/23/16. restricted by statute. • 40 CFR part 2. Accession Number: 20160923–5379. Mail: OPP Docket, Environmental 2. Tips for preparing your comments. Comments Due: 5 p.m. ET 10/14/16. Protection Agency Docket Center (EPA/ When preparing and submitting your The filings are accessible in the DC), (28221T), 1200 Pennsylvania Ave. comments, see the commenting tips at Commission’s eLibrary system by NW., Washington, DC 20460–0001. • http://www.epa.gov/dockets/ clicking on the links or querying the Hand Delivery: To make special comments.html. docket number. arrangements for hand delivery or Any person desiring to intervene or delivery of boxed information, please II. Registration Applications protest in any of the above proceedings follow the instructions at http:// EPA has received applications to must file in accordance with Rules 211 www.epa.gov/dockets/contacts.html. register pesticide products containing and 214 of the Commission’s Additional instructions on active ingredients not included in any Regulations (18 CFR 385.211 and commenting or visiting the docket, currently registered pesticide products. 385.214) on or before 5:00 p.m. Eastern along with more information about Pursuant to the provisions of FIFRA time on the specified comment date. dockets generally, is available at http:// section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA Protests may be considered, but www.epa.gov/dockets. is hereby providing notice of receipt and intervention is necessary to become a FOR FURTHER INFORMATION CONTACT: opportunity to comment on these party to the proceeding. Michael L. Goodis, Acting Director, applications. Notice of receipt of these eFiling is encouraged. More detailed Registration Division (7505P), Office of applications does not imply a decision information relating to filing Pesticide Programs, Environmental by the Agency on these applications. requirements, interventions, protests, Protection Agency, 1200 Pennsylvania 1. EPA Registration Number: 100– service, and qualifying facilities filings Ave. NW., Washington, DC 20460–0001; RANA. Docket ID number: EPA–HQ– can be found at: http://www.ferc.gov/ main telephone number: (703) 305– OPP- 2015–0775. Applicant: Syngenta docs-filing/efiling/filing-req.pdf. For 7090; email address: RDFRNotices@ Crop Protection LLC, 410 Swing Road, other information, call (866) 208–3676 epa.gov. P.O. Box 18300, Greensboro, NC 27419– 8300. Active ingredients: (toll free). For TTY, call (202) 502–8659. SUPPLEMENTARY INFORMATION: Pydiflumetofen and fludioxonil. Dated: September 26, 2016. I. General Information Product type: Fungicide. Proposed use: Nathaniel J. Davis, Sr., New terrestrial non-food use on Deputy Secretary. A. Does this action apply to me? ornamental plants. Contact: RD. [FR Doc. 2016–23843 Filed 9–30–16; 8:45 am] You may be potentially affected by 2. EPA Registration Number: 100– BILLING CODE 6717–01–P this action if you are an agricultural RANE. Docket ID number: EPA–HQ– producer, food manufacturer, or OPP- 2015–0775. Applicant: Syngenta pesticide manufacturer. The following Crop Protection LLC, 410 Swing Road, ENVIRONMENTAL PROTECTION list of North American Industrial P.O. Box 18300, Greensboro, NC 27419– AGENCY Classification System (NAICS) codes is 8300. Active ingredient: Pydiflumetofen not intended to be exhaustive, but rather and difenoconazole. Product type: [EPA–HQ–OPP–2015–0021; FRL–9952–20] provides a guide to help readers Fungicide. Proposed use: New food uses Pesticide Product Registration; determine whether this document on cucurbit vegetables (Crop Group 9), Receipt of Applications for New Active applies to them. Potentially affected dried shelled peas and beans (Crop Ingredients entities may include: Subgroup 6C), fruiting vegetables (Crop • Crop production (NAICS code 111). Group 8–10), grapes, potato, rapeseed AGENCY: Environmental Protection • Animal production (NAICS code (Crop Subgroup 20A), soybean, tomato, Agency (EPA). 112). and tuberous and corm vegetables (Crop ACTION: Notice. • Food manufacturing (NAICS code Subgroup 1C). Contact: RD. 311). 3. EPA Registration Number: 100– SUMMARY: EPA has received applications • Pesticide manufacturing (NAICS RANI. Docket ID number: EPA–HQ– to register pesticide products containing code 32532). OPP- 2015–0775. Applicant: Syngenta active ingredients not included in any Crop Protection LLC, 410 Swing Road, currently registered pesticide products. B. What should I consider as I prepare P.O. Box 18300, Greensboro, NC 27419– Pursuant to the Federal Insecticide, my comments for EPA? 8300. Active ingredient: Fungicide, and Rodenticide Act 1. Submitting CBI. Do not submit this Pydiflumetofen. Product type: (FIFRA), EPA is hereby providing notice information to EPA through Fungicide. Proposed use: New terrestrial
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non-food use on ornamental plants. terrestrial non-food uses on golf course SUMMARY: Under the Federal Insecticide, Contact: RD. turf and ornamental plants. Contact: RD. Fungicide, and Rodenticide Act 4. EPA Registration Number: 100– 8. EPA Registration Number: 100– (FIFRA), the payment of an annual RANG. Docket ID number: EPA–HQ– RANR. Docket ID number: EPA–HQ– maintenance fee is required to keep OPP- 2015–0775. Applicant: Syngenta OPP- 2015–0775. Applicant: Syngenta pesticide registrations in effect. The fee Crop Protection LLC, 410 Swing Road, Crop Protection LLC, 410 Swing Road, due last January 15, 2016, has gone P.O. Box 18300, Greensboro, NC 27419– P.O. Box 18300, Greensboro, NC 27419– unpaid for 314 registrations. If the fee is 8300. Active ingredient: Pydiflumetofen 8300. Active ingredient: not paid, the EPA Administrator may and fludioxonil. Product type: Pydiflumetofen. Product type: cancel these registrations by order and Fungicide. Proposed use: New food uses fungicide. Proposed use: New food uses without a hearing; orders to cancel these on cucurbit vegetables (Crop Group 9), on cereals (rye, triticale, barley, wheat, registrations have been issued. dried shelled beans (except cowpeas), and oats), corn (field, popcorn, sweet, FOR FURTHER INFORMATION CONTACT: fruiting vegetables (Crop Group 8–10), and seed corn), cucurbit vegetables Mick Yanchulis, Information grape and small fruit vine climbing (Crop Group 9), dried shelled peas and Technology and Resources Management subgroup (Crop Subgroup 13–07F, beans (Crop Subgroup 6C), fruiting Division (7502P), Office of Pesticide except fuzzy kiwifruit), leaf petiole vegetables (Crop Group 8–10), grape and Programs, Environmental Protection vegetables (Crop Subgroup 22B), leafy small fruit vine climbing subgroup Agency, 1200 Pennsylvania Ave. NW., green vegetables (Crop Subgroup 4– (Crop Subgroup 13–07F, except fuzzy Washington, DC 20460–0001; telephone 16A), potato, tuberous and corm kiwifruit), leaf petiole vegetables (Crop number: (703) 347–0237; email address: vegetables (Crop Subgroup 1C). Contact: Subgroup 22B), leafy green vegetables [email protected]. RD. (Crop Subgroup 4–16A), peanuts, Product-specific status inquiries may 5. EPA Registration Number: 100– potato, quinoa, rapeseed (Crop be made by calling toll-free, 1–800–444– RANL. Docket ID number: EPA–HQ– Subgroup 20A), soybean, tuberous and 7255. OPP- 2015–0775. Applicant: Syngenta corm vegetables (Crop Subgroup 1C). SUPPLEMENTARY INFORMATION: Crop Protection LLC, 410 Swing Road, Contact: RD. P.O. Box 18300, Greensboro, NC 27419– 9. EPA Registration Number: 100– I. General Information 8300. Active ingredient: RANT. Docket ID number: EPA–HQ– A. Does this action apply to me? Pydiflumetofen, azoxystrobin, and OPP- 2015–0775. Applicant: Syngenta propiconzaole. Product type: Fungicide. This action is directed to the public Crop Protection LLC, 410 Swing Road, Proposed use: New food uses on cereals in general. Although this action may be P.O. Box 18300, Greensboro, NC 27419– (rye, triticale, barley, wheat, and oats), of particular interest to persons who 8300. Active ingredient: corn (field, popcorn, sweet, and seed produce or use pesticides, the Agency Pydiflumetofen, azoxystrobin, and corn), dried shelled beans, peanuts, has not attempted to describe all the propiconzaole. Product type: Fungicide. quinoa, rapeseed (Crop Subgroup 20A), specific entities that may be affected by Proposed use: New terrestrial non-food and soybean. Contact: RD. this action. 6. EPA Registration Number: 100– use on ornamental plants. Contact: RD. RANN. Docket ID number: EPA–HQ– 10. EPA Registration Number: 100– B. How can I get copies of this document OPP- 2015–0775. Applicant: Syngenta RANU. Docket ID number: EPA–HQ– and other related information? Crop Protection LLC, 410 Swing Road, OPP- 2015–0775. Applicant: Syngenta The docket for this action, identified P.O. Box 18300, Greensboro, NC 27419– Crop Protection LLC, 410 Swing Road, by docket identification (ID) number 8300. Active ingredient: P.O. Box 18300, Greensboro, NC 27419– EPA–HQ–OPP–2016–0548, is available Pydiflumetofen. Product type: 8300. Active ingredient: at http://www.regulations.gov or at the Fungicide. Proposed use: New terrestrial Pydiflumetofen, azoxystrobin, and Office of Pesticide Programs Regulatory non-food use on golf course turf. propiconzaole. Product type: Fungicide. Public Docket (OPP Docket) in the Contact: RD. Proposed use: New terrestrial non-food Environmental Protection Agency 7. EPA Registration Number: 100– use on golf course turf. Contact: RD. Docket Center (EPA/DC), West William RANO. Docket ID number: EPA–HQ– Authority: 7 U.S.C. 136 et seq. Jefferson Clinton Bldg., Rm. 3334, 1301 OPP- 2015–0775. Applicant: Syngenta Dated: September 22, 2016. Constitution Ave. NW., Washington, DC Crop Protection LLC, 410 Swing Road, Michael Goodis, 20460–0001. The Public Reading Room P.O. Box 18300, Greensboro, NC 27419– is open from 8:30 a.m. to 4:30 p.m., 8300. Active ingredient: Acting Director, Registration Division, Office of Pesticide Programs. Monday through Friday, excluding legal Pydiflumetofen. Product type: holidays. The telephone number for the [FR Doc. 2016–23841 Filed 9–30–16; 8:45 am] Fungicide. Proposed use: New food uses Public Reading Room is (202) 566–1744, on cereals (rye and triticale; barley, BILLING CODE 6560–50–P and the telephone number for the OPP wheat, and oats—forage, hay, seed, and Docket is (703) 305–5805. Please review straw), corn (field, popcorn, sweet, and the visitor instructions and additional seed corn), cucurbit vegetables (Crop ENVIRONMENTAL PROTECTION AGENCY information about the docket available Group 9), dried shelled peas and beans at http://www.epa.gov/dockets. (Crop Subgroup 6C), fruiting vegetables Complete lists of registrations (Crop Group 8–10), grape and small fruit [EPA–HQ–OPP–2016–0548; FRL–9952–54] canceled for non-payment of the vine climbing subgroup (Crop Subgroup Cancellation of Pesticides for Non- maintenance fee are also available for 13–07F, except fuzzy kiwifruit), leaf reference in the OPP Docket. petiole vegetables (Crop Subgroup 22B), Payment of Year 2016 Registration leafy green vegetables (Crop Subgroup Maintenance Fees; Summary of Orders II. Background 4–16A), pea hay and vine, peanuts Issued Section 4(i)(5) of FIFRA (7 U.S.C. (peanut hay), potato, quinoa, rapeseed AGENCY: Environmental Protection 136a–1(i)(5)) requires that all pesticide (Crop Subgroup 20A), soybean (forage, Agency (EPA). registrants pay an annual registration hay, hulls, and seed), tuberous and corm maintenance fee, due by January 15 of ACTION: Notice. vegetables (Crop Subgroup 1C). New each year, to keep their registrations in
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effect. This requirement applies to all restrictions on sale, distribution, or use TABLE 2—FIFRA SECTION 3 REG- registrations granted under FIFRA of the products have already been ISTRATIONS CANCELLED FOR NON- section 3 (7 U.S.C. 136a) as well as those imposed, through special reviews or PAYMENT OF 2016 MAINTENANCE granted under FIFRA section 24(c) (7 other Agency actions. These general FEE—Continued U.S.C. 136v(c)) to meet special local provisions for disposition of stocks needs. Registrations for which the fee is should serve in most cases to cushion Registration No. Product name not paid are subject to cancellation by the impact of these cancellations while order and without a hearing. 000769Ð00589 ...... R & M Lawn Spray Con- the market adjusts. centrate #2. Under FIFRA, the EPA Administrator III. Listing of Registrations Canceled for 000769Ð00856 ...... Pratt Wettable Sulfur Dust or may reduce or waive maintenance fees Spray. for minor agricultural use pesticides Non-Payment 000769Ð00945 ...... Liquid Edger & Spot Weed. when it is determined that the fee Table 1 of this unit lists all of the 000769Ð00972 ...... Security Brand 50% Sevin Wet- table. would be likely to cause significant FIFRA section 24(c) registrations, and 000769Ð00980 ...... Allpro Bifen LP. impact on the availability of the Table 2 of this unit lists all of the FIFRA 000773Ð00088 ...... Safecide Brand IC. pesticide for the use. section 3 registrations which were 000829Ð00202 ...... SAÐ50 Brand Thuricide HPC. In fiscal year 2016, maintenance fees canceled for non-payment of the 2016 000875Ð00194 ...... Divosan Quat-Klenz. 001022Ð00592 ...... Secure. were collected in one billing cycle. In maintenance fee. These registrations 001043Ð00019 ...... Staphene Disinfectant Spray late October of 2015, all holders of have been canceled by order and and Deodorizer. either FIFRA section 3 registrations or without hearing. Cancellation orders 001043Ð00077 ...... Powder Keg. FIFRA section 24(c) registrations were were sent to affected registrants via 001157Ð00052 ...... IGR 1% Liquid Methoprene. 001475Ð00165 ...... IMS Moth Balls. sent lists of their active registrations, certified mail in the past several days. 001475Ð00166 ...... IMS Moth Blocks. along with forms and instructions for The Agency is unlikely to rescind 001475Ð00167 ...... IMS Moth Cake. responding. They were asked to identify cancellation of any particular 001475Ð00168 ...... IMS Moth Crystals. which of their registrations they wished registration unless the cancellation 001769Ð00283 ...... Flash. 001769Ð00370 ...... PÐOÐW Plus. to maintain in effect, and to calculate resulted from Agency error. 003095Ð00024 ...... Pic Ant Control Systems. and remit the appropriate maintenance 003095Ð00027 ...... Pic XÐ100% Deet. fees. Most responses were received by TABLE 1—FIFRA SECTION 24(c) REG- 003377Ð00029 ...... Sanibrom 45 Biocide. the statutory deadline of January 15. A 003377Ð00063 ...... SBS 1021 Biocide. ISTRATIONS CANCELLED FOR NON- 003377Ð00071 ...... Xtrabrom 111T Biocide. notice of intent to cancel was sent in PAYMENT OF 2016 MAINTENANCE 003573Ð00091 ...... Homer. April of 2016 to companies who did not FEE 004313Ð00041 ...... Pine II Pine Odor Disinfectant. respond and to companies who 004313Ð00093 ...... Ocide Plus. responded, but paid for less than all of SLN No. Product name 004972Ð00030 ...... Super Hi-Kil Formula One. 005736Ð00061 ...... HDC V2 1:64. their registrations. Since mailing the 005736Ð00104 ...... Hospital Disinfectant Cleaner. notices of intent to cancel, EPA has CAÐ15Ð0004 ...... Hasachlor. CAÐ77Ð0058 ...... Pic-Brom 50. 005736Ð00105 ...... Liquid Disinfectant Cleaner. maintained a toll-free inquiry number CAÐ97Ð0016 ...... Methyl Bromide 98%. 005736Ð00106 ...... Foaming Aerosol Disinfectant through which the questions of affected FLÐ06Ð0009 ...... MBC Soil Fumigant. Cleaner. registrants have been answered. HIÐ03Ð0008 ...... PPG Calcium Hypochlorite 005785Ð00057 ...... Bromicide. In fiscal year 2016, the Agency has Tablets. 005785Ð00063 ...... IWT BCDMH Tablets. MNÐ14Ð0003 ...... Earthtec. 005785Ð00065 ...... IWT BCDMH Granules. waived the fee for 304 minor PRÐ03Ð0002 ...... BVA Spray 15. 005785Ð00100 ...... 501 BT. agricultural use registrations at the 005785Ð00105 ...... Dihalo. request of the registrants. Maintenance 005785Ð00106 ...... Dihalo Granular. TABLE 2—FIFRA SECTION 3 REG- 005785Ð00107 ...... Dihalo Granular. fees have been paid for about 15,921 005785Ð00108 ...... Dihalo Tablets. FIFRA section 3 registrations, or about ISTRATIONS CANCELLED FOR NON- 005887Ð00161 ...... Black Leaf Sulfur Dust. 96% of the registrations on file in PAYMENT OF 2016 MAINTENANCE 005887Ð00179 ...... Black Leaf Mole & Gopher Kill- October 2015. Fees have been paid for FEE er Pelleted Bait. about 1,901 FIFRA section 24(c) 006198Ð00011 ...... QÐIV. Registration No. Product name 006383Ð00001 ...... Ferret Rodenticide. registrations, or about 87% of the total 006458Ð00005 ...... Rotenone Resin for Manufac- on file in October 2015. Cancellations 000099Ð00130 ...... Great Outdoors Insect Repel- turing Use Only. for non-payment of the maintenance fee lent Lotion. 006458Ð00006 ...... Cube Powder. affect about 307 FIFRA section 3 000192Ð00188 ...... Dexol Dormant & Summer Oil 007405Ð00039 ...... Chemi-Cap Germicidal Multi- Spray II. Purpose Cleaner. registrations and about 7 FIFRA section 000192Ð00193 ...... Dexol Predator Roach Powder 007546Ð00026 ...... Liquid Disinfectant Cleaner. 24(c) registrations. with Boric Acid. 007546Ð00027 ...... Hospital Disinfectant Cleaner. The cancellation orders generally 000192Ð00205 ...... Dexol Gopher Killer Pellets 2. 007546Ð00028 ...... Foaming Aerosol Disinfectant permit registrants to continue to sell and 000192Ð00219 ...... Dexol Lawn Insect Bifen 0.1%. Cleaner. 007698Ð00007 ...... Hubbard One To One Rol Min- distribute existing stocks of the canceled 000192Ð00220 ...... Bifen Nursery Insecticide Gran- ules. eral. products until January 15, 2017, 1 year 000211Ð00040 ...... Q4.5Ð5.0 PBÐ4.5. 007726Ð00024 ...... Klor 300 Chlorine Base Sani- after the date on which the fee was due. 000211Ð00050 ...... Q5.5Ð5.5 NPBÐ2.5HW. tizer. Existing stocks already in the hands of 000266Ð20002 ...... Sodium Hypochlorite Solu- 008155Ð00012 ...... Sanitizer Virucidal Husky 803 tions—10%. S/V Disinfectant. dealers or users, however, can generally 000278Ð00050 ...... Sanygen Granular Chlorinating 008155Ð00017 ...... Carpet Sanitizer Husky C/S be distributed, sold, or used legally until Compound. Carpet Extraction Con- they are exhausted. Existing stocks are 000397Ð00006 ...... Steri-Dri Fumigant. centrate. defined as those stocks of a registered 000572Ð00005 ...... Rockland Penn-O-Pine Pine 008155Ð00019 ...... New Power Husky 315 N/P Disinfectant. Bowl Cleaner. pesticide product which are currently in 000572Ð00350 ...... Rockland Indoor/Outdoor In- 008155Ð00022 ...... Husky 805 C/D. the United States and which have been sect Spray. 008155Ð00023 ...... Husky 806 H/D/N. packaged, labeled, and released for 000769Ð00574 ...... Suregard Brand Sevin 80S 008155Ð00024 ...... Husky 800 N/D. shipment prior to the effective date of Carbaryl Insecticide. 008848Ð00063 ...... Black Jack Jet Action Crawling 000769Ð00586 ...... R & M Floral & Vegetable Insect Spray. the cancellation order. Spray #2. 008848Ð00071 ...... Black Jack DÐ200 Insect Killer. The exceptions to these general rules 000769Ð00587 ...... R & M Floral & Vegetable 008848Ð00076 ...... Landlord’s Multipurpose 0.5% are cases where more stringent Spray Concentrate. Liquid Formula.
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TABLE 2—FIFRA SECTION 3 REG- TABLE 2—FIFRA SECTION 3 REG- TABLE 2—FIFRA SECTION 3 REG- ISTRATIONS CANCELLED FOR NON- ISTRATIONS CANCELLED FOR NON- ISTRATIONS CANCELLED FOR NON- PAYMENT OF 2016 MAINTENANCE PAYMENT OF 2016 MAINTENANCE PAYMENT OF 2016 MAINTENANCE FEE—Continued FEE—Continued FEE—Continued
Registration No. Product name Registration No. Product name Registration No. Product name
008848Ð00080 ...... Landlord’s Oil Base Crawling 056336Ð00013 ...... Checkmate CM 180/1ÐP Dis- 083991Ð00002 ...... Fungaflor Seed. Insect Killer. penser. 084398Ð00001 ...... CZL Oxidize 7.5. 009198Ð00065 ...... The Anderson’s Crabgrass 056336Ð00054 ...... Checkmate SPM Dispenser. 084542Ð00002 ...... Cupron Cupric Oxide. Preventer with 4.7% 056336Ð00061 ...... Checkmate CM Primo. 084542Ð00006 ...... Cupron 2% Anti-Dustmite Fi- Tupersan. 057538Ð00021 ...... N-Large 20 SP. bers and Fabrics. 009198Ð00149 ...... The Anderson’s Easy Weed ’n 057538Ð00022 ...... N-Large 40 SP. 084542Ð00014 ...... Cupron Water System. Green. 057538Ð00023 ...... N-Large 10 SP. 084699Ð00002 ...... Bavicbrom Tablet for Manufac- 009198Ð00183 ...... The Anderson’s Golf Products 058044Ð00003 ...... Consan Triple Action 20. turing Use Only. FF II 14Ð3Ð3 with PCNB 058639Ð00005 ...... Car-Mac Insecticidal Die-No- 084699Ð00004 ...... Bavicbrom Powder for Manu- Fungicide. Mite Strip. facturing Use Only. 009198Ð00205 ...... The Anderson’s Golf Products 059638Ð00002 ...... MBÐIS01.5. 084886Ð00003 ...... AAT Consumer Weed & Feed Turf Enhancer 2SC. 060061Ð00089 ...... Woodlife Milltreat Type F VM & 01. 009198Ð00209 ...... The Anderson’s Fertilizer Plus P. 084930Ð00001 ...... ARC-Camba 4 DMA. Preemergent Weed Control. 061468Ð00010 ...... Creosote Coal Tar Solution. 084930Ð00002 ...... ARC-Imida 4#. 009198Ð00215 ...... The Anderson’s Fertilizer with 061468Ð00011 ...... Creosote Oil. 084930Ð00003 ...... ARC-Mepiquat Chloride 4.2%. 0.25% Paclobutrazol. 064962Ð00004 ...... ETÐ20. 084930Ð00004 ...... ARC-Bifenicide 25EC. 009198Ð00217 ...... The Anderson’s Fertilizer with 065864Ð00001 ...... SMÐ9. 084930Ð00005 ...... ARC-Imida 600 ST. 0.039% Bifenthrin Insecti- 066243Ð00003 ...... Quik Control. 084930Ð00006 ...... ARC-Clethodim #2. cide. 067517Ð00009 ...... IÐO Concentrate. 084930Ð00007 ...... ARC-Chlor 4# AG. 009198Ð00233 ...... The Anderson’s GC Bicarb In- 067517Ð00033 ...... Residual Livestock and Poultry 084930Ð00009 ...... AGC-Camba + 2,4-D DMA. secticide + Fertilizer. Insecticide. 084930Ð00010 ...... ARC-Gly Plus. 009198Ð00239 ...... The Anderson’s 0.077% 067517Ð00044 ...... Hard Hitter Cattle Pour-On In- 084930Ð00011 ...... ARC-Imida 2#. Bifenthrin + 0.155% secticide. 084930Ð00013 ...... ARC-Teb 3.6 Flowable Fun- Imidacloprid Granular Insect. 067517Ð00048 ...... Canine Shampoo. gicide. 009743Ð00007 ...... Skasol Microbiocide No. H. 067517Ð00052 ...... 5.7% Insecticide. 084930Ð00014 ...... ARC-Met 60. 009886Ð00002 ...... Unipine 85. 067517Ð00055 ...... Permethrin Water-Base Spray. 084930Ð00015 ...... ARC-Lamcy 2. 009886Ð00004 ...... Unipine 80. 067517Ð00058 ...... Insecticide Shampoo for Ani- 084930Ð00016 ...... ARC-Gly 53.8% Herbicide. 009886Ð00010 ...... Unipine 60. mals. 084930Ð00017 ...... ARC Chlormet Herbicide. 009886Ð00012 ...... Uniclean 30/60. 067517Ð00059 ...... IGR Flea and Insect Spray. 084930Ð00018 ...... ARC SU 50/25 Herbicide. 009886Ð00016 ...... Uniclean 19.9/60. 067517Ð00078 ...... Tick and Mosquito Permethrin 084930Ð00019 ...... ARCÐSU 25/25 Herbicide. 009886Ð00017 ...... Uniclean 19.9/85. Repellent. 084930Ð00020 ...... ARC SU 40/10 Herbicide. 010707Ð00037 ...... BPC 68955. 067517Ð00082 ...... Rabon Dust for Dogs and Cats. 084930Ð00021 ...... ARC SU TBN 75 Herbicide. 010897Ð00033 ...... One Inch Chlorinating Tablets 070627Ð00010 ...... Johnson’s Forward Cleaner. 084930Ð00022 ...... ARC SU TFS 75 Herbicide. 070627Ð00021 ...... Virex II/128. Repack. 084930Ð00024 ...... ARCÐATZ 4L Herbicide. 070627Ð00055 ...... Closure Central 25. 010897Ð00034 ...... 3 Inch Chlorinating Tablets. 084930Ð00025 ...... ARC-Metolachlor. 070791Ð00002 ...... Envirotru. 011668Ð00010 ...... T & R Brand Pine Disinfectant. 084930Ð00026 ...... ARCÐ2,4-D Amine 4. 070791Ð00003 ...... Geotru. 011668Ð00013 ...... EL Pinol 60. 084930Ð00027 ...... ARCÐDGCA Herbicide. 070791Ð00004 ...... Eco Tru Revised. 011694Ð00088 ...... Do It All Germicidal Foaming 084930Ð00028 ...... ARCÐLVÐ4. 070852Ð00006 ...... AGC 0.05 AG. Cleaner. 084930Ð00029 ...... ARCÐTDZ SC Cotton Defoliant. 071407Ð00002 ...... Chlorine Grape Guard. 011694Ð00113 ...... Scrubs. 084930Ð00030 ...... ARC Abamectin 0.15 EC Insec- 071838Ð00001 ...... ATÐ5. 012017Ð00003 ...... Aquaphenate. 072083Ð00002 ...... Halosource Bleach. ticide. 013283Ð00032 ...... Rainbow ETOC(R) 0.135% 072112Ð00005 ...... Mainsail WDG. 084930Ð00031 ...... ARC-Ethephon 6 Plant Growth Wasp & Hornet Spray. 072112Ð00006 ...... Mainsail 6.0 F. Regulator. 013283Ð00033 ...... Rainbow ETOC(R) 0.15% 072159Ð00003 ...... Chlorosel Pro DF Fungicide. 084930Ð00032 ...... ARC-Lamcy 13 EC Insecticide. Wasp & Hornet Spray. 072642Ð00009 ...... Assurity Cat. 084930Ð00033 ...... ARC-Fomesafen. 013283Ð00035 ...... Rainbow ETOC(R) 0.186% 072804Ð00002 ...... Doktor Doom House & Garden 084930Ð00034 ...... ARCÐTFAN 4.5FL Fungicide. Wasp & Hornet Spray. Insect Killer. 084930Ð00035 ...... ARC-Trazine 4L Herbicide. 013808Ð00007 ...... Compound 1080 Livestock Pro- 073314Ð00009 ...... Chromo Bio-Insecticide TGAI. 085583Ð00001 ...... DBNPA Technical. tection Collar. 073314Ð00010 ...... Chromo Bio-Insecticide EP. 085678Ð00012 ...... Captan 50 WP. 015136Ð00010 ...... Med-Chem Germicidal Solu- 073314Ð00012 ...... Quelzor WP. 085678Ð00016 ...... Acephate Technical. tion. 073479Ð00001 ...... Paramount Aerosol PTB. 085678Ð00025 ...... Diuron 80 WDG. 015300Ð00008 ...... Chemtreat CLÐ200. 073637Ð00005 ...... Cycloate 6ÐE Selective Herbi- 085678Ð00026 ...... Acephate 97DF. 017545Ð00009 ...... Treflan E.C. Weed and Grass cide. 085678Ð00029 ...... Acephate 90WDG. Preventer. 073667Ð00007 ...... MB 2001 XG. 086089Ð00001 ...... The Pool Clor. 024061Ð00001 ...... Technical Piperonyl Butoxide. 073754Ð00001 ...... 2,4-D Acid Technical. 086089Ð00002 ...... The Pool Clor Plus. 036739Ð20001 ...... Sinco Super Shok. 073754Ð00002 ...... Growell 2,4-D 2-Ethylhexyl 086110Ð00001 ...... Superclear T100. 037256Ð00001 ...... Protect ’n Shield Antimicrobial. Ester Technical. 086130Ð00003 ...... FCBÐ13. 041550Ð00001 ...... R.P.S. Humidifier Bacteria- 074075Ð00002 ...... Intace Fungicide BÐ350. 086130Ð00005 ...... FCBÐ15. Algae Treatment. 074395Ð00001 ...... Materia PTB Technical 086130Ð00006 ...... Flowchem FCBÐ16. 044891Ð00018 ...... Bio-Boostactivator. Pheromone. 086145Ð00002 ...... Magnolia Algaecide 60% Con- 046622Ð00001 ...... Micro-Biocide; SFÐ54. 074681Ð00006 ...... Copper Shield SCX. centrated. 047033Ð00012 ...... AQBÐ004 Microbiocide. 075341Ð00004 ...... Patox-Lite. 086145Ð00003 ...... Magnolia Brominating Tablets. 047362Ð00003 ...... Seabright Roach Bait. 080967Ð00012 ...... Revolution G N Go Herbicide. 086244Ð00001 ...... BA-Kil. 048482Ð00007 ...... Cal Hypo Giant Tabs. 081002Ð00002 ...... Chlorine Free Splashes Sani- 086363Ð00002 ...... Dicamba 4 DMA. 049620Ð00012 ...... Peroxy-Blend PB33 S/D. tizer. 086363Ð00003 ...... KT Chlorpyrifos 4E. 049827Ð00002 ...... Pine Glo. 081002Ð00003 ...... Splashes Too Swimming Pool 086363Ð00004 ...... Glyphosate 41. 051219Ð00001 ...... Refresh. Sanitizer. 086363Ð00005 ...... Tebucon 3.6 Flowable Fun- 051219Ð00003 ...... Actabs. 081882Ð00001 ...... Triangle Brand Copper Sulfate gicide. 051219Ð00004 ...... Actabs XX. Powder. 086363Ð00006 ...... Dicamba 2,4-D DMA. 052134Ð00001 ...... Chlorine Liquified Gas Under 081882Ð00002 ...... Triangle Brand Copper Sulfate 086363Ð00008 ...... Imidacloprid 2FL. Pressure. Crystal. 086363Ð00009 ...... Lambda-Cyhalothrin 13% EC 053735Ð00015 ...... King Brom. 081882Ð00003 ...... Triangle Brand Copper Sulfate Insecticide. 054998Ð00002 ...... Granular Stabilized Con- Pentahydrate Mup. 086363Ð00010 ...... Thiofan8 4.0. centrated Dry Granular 082074Ð00003 ...... Mycotrol O. 086363Ð00013 ...... KT Fomesafen 2SL. Chlorinating Product. 082571Ð00001 ...... Csc Wettable or Dusting Sulfur. 086363Ð00015 ...... KT Ethofumesate 4SC. 054998Ð00005 ...... Algaecide. 083525Ð00006 ...... Absolute Chlor 65 (Calcium Hy- 086363Ð00017 ...... KT Oxyflo 4SC. 055070Ð00002 ...... Carpet—Guard. pochlorite). 086363Ð00018 ...... KT Oxyflo 2EC.
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TABLE 2—FIFRA SECTION 3 REG- which have been packaged, labeled, and further reduce the information ISTRATIONS CANCELLED FOR NON- released for shipment prior to the collection burden on small business PAYMENT OF 2016 MAINTENANCE effective date of the cancellation order. concerns with fewer than 25 employees. FEE—Continued Unless the provisions of an earlier order The FCC may not conduct or sponsor a apply, existing stocks already in the collection of information unless it Registration No. Product name hands of dealers or users can be displays a currently valid control distributed, sold, or used legally until number. No person shall be subject to 086363Ð00019 ...... KT Propanil 80DF. 086363Ð00020 ...... KT Propanil 4SC. they are exhausted, provided that such any penalty for failing to comply with 086363Ð00021 ...... KT CTL 720 Fungicide. further sale and use comply with the a collection of information subject to the 086794Ð00001 ...... Newagco Glyphosate Tech- EPA-approved label and labeling of the PRA that does not display a valid Office nical. affected product. Exception to these of Management and Budget (OMB) 086794Ð00002 ...... Newagco Glyphosate Fully Loaded 41 Plus. general rules will be made in specific control number. 086794Ð00003 ...... Newagco Glyphosate 62% cases when more stringent restrictions DATES: Written PRA comments should MUP. on sale, distribution, or use of the be submitted on or before December 2, 086794Ð00004 ...... Mpower Clodinafop-Propargyl products or their ingredients have Technical. 2016. If you anticipate that you will be 086794Ð00006 ...... Mpower Clodinafop Herbicide. already been imposed, as in a special submitting comments, but find it 087273Ð00002 ...... Pro Chlor Tabs. review action, or where the Agency has difficult to do so within the period of 087687Ð00001 ...... Eco-Clad Part A. identified significant potential risk time allowed by this notice, you should 087722Ð00003 ...... Bactiblock 101 RP1.47. 087722Ð00004 ...... Bactiblock 101 S1.19. concerns associated with a particular advise the contact listed below as soon 087722Ð00005 ...... Bactiblock 920 B4. chemical. as possible. 087800Ð00001 ...... Teking 101M. Authority: 7 U.S.C. 136 et seq. ADDRESSES: Direct all PRA comments to 087800Ð00002 ...... Teking 101E. 087800Ð00003 ...... Teking 102. Dated: September 19, 2016. Nicole Ongele, FCC, via email 088089Ð00003 ...... Peridox with the Electrostatic Delores Barber, [email protected] and to Decontamination System. [email protected]. 088402Ð00001 ...... Splash Chlor Bleach. Director, Information Technology and 088407Ð00001 ...... Hydro Stick AOS 7017. Resources Management Division, Office of FOR FURTHER INFORMATION CONTACT: For 088622Ð00001 ...... T.O.P.S. System. Pesticide Programs. additional information about the 088665Ð00001 ...... Bugz-No-More Insecticide. [FR Doc. 2016–23850 Filed 9–30–16; 8:45 am] 088691Ð00001 ...... Clear Bath Algae Inhibitor. information collection, contact Nicole 089016Ð00001 ...... LAG 1. BILLING CODE 6560–50–P Ongele at (202) 418–2991. 089016Ð00006 ...... LAG 6. SUPPLEMENTARY INFORMATION: 089094Ð00001 ...... Multi-Purpose Cleaner Spray. OMB Control Number: 3060–XXXX. 089094Ð00005 ...... Floor Liquid. 089897Ð00002 ...... Ultrazapxtendapak Grapes. FEDERAL COMMUNICATIONS Title: Receiving Written Consent for 090334Ð00001 ...... Xensation Cover AM1. COMMISSION Communication with Base Stations in 090960Ð00001 ...... Fly Away IGR Pro. Canada; Issuing Written Consent to [OMB 3060–XXXX] 090963Ð00001 ...... Nipacide MX. Licensees from Canada for 091097Ð00001 ...... Mpower Metolachlor II. 091097Ð00002 ...... Mpower 2,4-D 4 Amine. Information Collection Being Reviewed Communication with Base Stations in 091097Ð00003 ...... Mpower 2,4-D 6 Ester. by the Federal Communications the U.S.; Description of Interoperable 091097Ð00004 ...... Mpower Lambda. Commission Communications with Licensees from 091097Ð00005 ...... Mpower Clethodim. Canada. 091097Ð00006 ...... Mpower Bentazon. AGENCY: 091097Ð00007 ...... Mpower Dicamba DMA. Federal Communications Form Number: N/A. 091097Ð00008 ...... Mpower Tebuconazole. Commission. Type of Review: New collection. 091097Ð00009 ...... Mpower Propiconazole. ACTION: Notice and request for Respondents: State, local, or tribal 091097Ð00010 ...... Mpower Azoxystrobin. comments. governments. 091145Ð00001 ...... Vex-Trol 30Ð30 ULV Mosquito Number of Respondents and Adulticide. SUMMARY: 091145Ð00002 ...... Vex-Trol 31Ð67 ULV Mosquito As part of its continuing effort Responses: 3,224 respondents; 3,224 Adulticide. to reduce paperwork burdens, and as responses. 091145Ð00003 ...... Vex-Trol 4Ð4 ULV Mosquito required by the Paperwork Reduction Estimated Time per Response: 0.5 Adulticide. Act (PRA) of 1995 (44 U.S.C. 3501– hours–1 hour. 091145Ð00006 ...... Vex-Trol UL 4Ð8. 091145Ð00007 ...... Aqua Vex-Trol 30Ð30 ULV 3520), the Federal Communications Frequency of Response: On occasion Mosquito Adulticide. Commission (FCC or the Commission) reporting requirement. 091234Ð00001 ...... Synag T-Methyl 4.5F. invites the general public and other Obligation to Respond: Written 091234Ð00005 ...... S105.1 Bifenthrin FC. Federal agencies to take this consent from the licensee of a base 091795Ð00003 ...... Blue Shield BQ Algaecide. 091795Ð00006 ...... Blue Shield Jumbo Slo-Pokes. opportunity to comment on the station repeater is required before first 091795Ð00007 ...... Blue Shield Slo-Tabs. following information collection. responders from the other country can 091795Ð00008 ...... Blue Shield P.D.Q. Tabs. Comments are requested concerning: begin communicating with that base 091795Ð00009 ...... Blue Shield Econo Shock. Whether the proposed collection of stations repeater. Applicants are advised information is necessary for the proper to include a description of how they IV. Provisions for Disposition of performance of the functions of the intend to interoperate with licensees Existing Stocks Commission, including whether the from Canada when filing applications to The effective date of cancellation will information shall have practical utility; operate under any of the scenarios be the date of the cancellation order. the accuracy of the Commission’s described in Public Notice DA 16–739 The orders effecting these requested burden estimate; ways to enhance the in order to ensure that the application cancellations will generally permit a quality, utility, and clarity of the is not inadvertently rejected by Canada. registrant to sell or distribute existing information collected; ways to minimize Statutory authority for these collections stocks until January 15, 2017, 1 year the burden of the collection of are contained in 47 U.S.C. 151, 154, 301, after the date on which the fee was due. information on the respondents, 303, 307, 308, 309, 310, 316, 319, Existing stocks are those stocks of including the use of automated 325(b), 332, 336(f), 338, 339, 340, 399b, registered pesticide products which are collection techniques or other forms of 403, 534, 535, 1404, 1452, and 1454 of currently in the United States and information technology; and ways to the Communications Act of 1934.
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Total Annual Burden: 5,642 hours. the risk of an inadvertent rejection by FEDERAL RESERVE SYSTEM Total Annual Cost: None. ISED. Privacy Impact Assessment: No Federal Communications Commission. Change in Bank Control Notices; impact(s). Gloria J. Miles, Acquisitions of Shares of a Bank or Nature and Extent of Confidentiality: Bank Holding Company Applicants who include a description of Federal Register Liaison Officer. Office of the how they intend to interoperate with Secretary. [FR Doc. 2016–23746 Filed 9–30–16; 8:45 am] The notificants listed below have licensees from Canada need not include applied under the Change in Bank BILLING CODE 6712–01–P any confidential information with their Control Act (12 U.S.C. 1817(j)) and description. Nonetheless, there is a need § 225.41 of the Board’s Regulation Y (12 for confidentiality with respect to all CFR 225.41) to acquire shares of a bank applications filed with the Commission FEDERAL RESERVE SYSTEM or bank holding company. The factors through its Universal Licensing System that are considered in acting on the (ULS). Although ULS stores all Formations of, Acquisitions by, and notices are set forth in paragraph 7 of information pertaining to the individual Mergers of Bank Holding Companies the Act (12 U.S.C. 1817(j)(7)). license via an FCC Registration Number The companies listed in this notice (FRN), confidential information is have applied to the Board for approval, The notices are available for accessible only by persons or entities pursuant to the Bank Holding Company immediate inspection at the Federal that hold the password for each account, Act of 1956 (12 U.S.C. 1841 et seq.) Reserve Bank indicated. The notices and the Commission’s licensing staff. (BHC Act), Regulation Y (12 CFR part also will be available for inspection at Information on private land mobile 225), and all other applicable statutes the offices of the Board of Governors. radio licensees is maintained in the and regulations to become a bank Interested persons may express their Commission’s system of records, FCC/ holding company and/or to acquire the views in writing to the Reserve Bank WTB–1, ‘‘Wireless Services Licensing assets or the ownership of, control of, or indicated for that notice or to the offices Records.’’ The licensee records will be the power to vote shares of a bank or of the Board of Governors. Comments publicly available and routinely used in bank holding company and all of the must be received not later than October accordance with subsection (b) of the banks and nonbanking companies 18, 2016. Privacy Act. TIN Numbers and material owned by the bank holding company, A. Federal Reserve Bank of which is afforded confidential treatment including the companies listed below. Minneapolis (Jacquelyn K. Brunmeier, pursuant to a request made under 47 The applications listed below, as well Assistant Vice President) 90 Hennepin CFR 0.459 will not be available for as other related filings required by the Avenue, Minneapolis, Minnesota Public inspection. Any personally Board, are available for immediate 55480–0291: identifiable information (PII) that inspection at the Federal Reserve Bank individual applicants provide is covered 1. John R. Rice, Brookings, South indicated. The applications will also be Dakota, and Mary D. Rice, Boston, by a system of records, FCC/WTB–1, available for inspection at the offices of Massachusetts; individually and as a ‘‘Wireless Services Licensing Records,’’ the Board of Governors. Interested group acting concert, to retain shares of and these and all other records may be persons may express their views in Citizens State Bank of Arlington, disclosed pursuant to the Routine Uses writing on the standards enumerated in as stated in this system of records Arlington, South Dakota. the BHC Act (12 U.S.C. 1842(c)). If the notice. proposal also involves the acquisition of B. Federal Reserve Bank of New York Needs and Uses: This collection will (Ivan Hurwitz, Vice President) 33 be submitted as a new collection after a nonbanking company, the review also includes whether the acquisition of the Liberty Street, New York, New York this 60-day comment period to the 10045–0001. Comments can also be sent Office of Management and Budget nonbanking company complies with the standards in section 4 of the BHC Act electronically to (OMB) in order to obtain the full three- [email protected]: year clearance. The purpose of requiring (12 U.S.C. 1843). Unless otherwise an agency to issue written consent noted, nonbanking activities will be 1. Lawrence B. Seidman, Wayne, New before allowing first responders from conducted throughout the United States. Jersey; Seidman and Associates, LLC; Unless otherwise noted, comments the other country to communicate with Seidman Investment Partnership, LP; its base station repeater ensures to that regarding each of these applications Seidman Investment Partnership II, LP; the licensee of that base stations must be received at the Reserve Bank Seidman Investment Partnership III, LP, repeater (host licensee) maintains indicated or the offices of the Board of all of Parsippany, New Jersey; LSBK06– control and is responsible for its Governors not later than October 28, 08, LLC, Palm Beach, Florida; Broad operation at all times. The host licensee 2016. Park Investors, LLC; Chewy Gooey A. Federal Reserve Bank of can use the written consent to ensure Cookies, LP, both of West Orange, New Minneapolis (Jacquelyn K. Brunmeier, that first responders from the other Jersey; CBPS, LLC, New York, New Assistant Vice President) 90 Hennepin country understand the proper York; and 2514 Multi-Strategy Fund LP, Avenue, Minneapolis, Minnesota procedures and protocols before they Tampa, Florida; to increase their 55480–0291: ownership of the shares of MSB begin communicating with its base 1. Currie Bancorporation, Inc., Currie, Financial Corp, Millington, New Jersey, station repeater. Furthermore, when Minnesota; to acquire 100 percent of reviewing applications filed by border First State Bank of Okabena, Okabena, and thereby acquire shares of Millington area licensees, Commission staff will Minnesota. Bank, Millington, New Jersey. use any description of how an applicant Board of Governors of the Federal Reserve Board of Governors of the Federal Reserve intends to interoperate with licensees System, September 28, 2016. from Canada, including copies of any System, September 28, 2016. written agreements, in order to Michele Taylor Fennell, Michele Taylor Fennell, coordinate the application with Assistant Secretary of the Board. Assistant Secretary of the Board. Innovation, Science and Economic [FR Doc. 2016–23824 Filed 9–30–16; 8:45 am] [FR Doc. 2016–23825 Filed 9–30–16; 8:45 am] Development Canada (ISED) and reduce BILLING CODE 6210–01–P BILLING CODE 6210–01–P
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FEDERAL RESERVE SYSTEM contact information. Public comments At the end of the comment period, the may also be viewed electronically or in comments and recommendations Proposed Agency Information paper form in Room 3515, 1801 K Street received will be analyzed to determine Collection Activities; Comment (between 18th and 19th Streets NW.), the extent to which the Federal Reserve Request Washington, DC 20006 between 9:00 should modify the proposed revisions a.m. and 5:00 p.m. on weekdays. prior to giving final approval. AGENCY: Board of Governors of the Additionally, commenters may send a Federal Reserve System. copy of their comments to the OMB Proposal To Approve Under OMB ACTION: Notice for comment regarding Desk Officer—Shagufta Ahmed—Office Delegated Authority the Extension for the Federal Reserve proposal to extend of Information and Regulatory Affairs, Three Years, Without Revision, of the without revision, the clearance under Office of Management and Budget, New Following Reports the Paperwork Reduction Act for the Executive Office Building, Room 10235, 1. Report title: Intermittent Survey of following information collection 725 17th Street NW., Washington, DC Business. activity. 20503 or by fax to (202) 395–6974. Agency form number: FR 1374. OMB control number: 7100–0302. SUMMARY: The Board of Governors of the FOR FURTHER INFORMATION CONTACT: A copy of the PRA OMB submission, Frequency: On occasion. Federal Reserve System (Board or Respondents: Businesses and state Federal Reserve) invites comment on including the proposed reporting form and instructions, supporting statement, and local governments. proposals to extend without revision, Estimated number of respondents: the Intermittent Survey of Businesses and other documentation will be placed into OMB’s public docket files, once 2,410. (FR 1374), and the Domestic Finance Estimated average hours per response: Company Report of Consolidated Assets approved. These documents will also be made available on the Federal Reserve 15 minutes. and Liabilities (FR 2248). Estimated annual burden hours: 1,825 Board’s public Web site at: http:// On June 15, 1984, the Office of hours. Management and Budget (OMB) www.federalreserve.gov/apps/ General Description of Report: The delegated to the Board authority under reportforms/review.aspx or may be survey data are used by the Federal requested from the agency clearance the Paperwork Reduction Act (PRA) to Reserve to gather information officer, whose name appears below. approve of and assign OMB control specifically tailored to the Federal Federal Reserve Board Clearance numbers to collection of information Officer—Nuha Elmaghrabi—Office of Reserve’s policy and operational requests and requirements conducted or the Chief Data Officer, Board of responsibilities. There are two parts to sponsored by the Board. In exercising Governors of the Federal Reserve this event-generated survey. First, under this delegated authority, the Board is System, Washington, DC 20551 (202) the guidance of Federal Reserve directed to take every reasonable step to 452–3829. Telecommunications Device economists, the Federal Reserve Banks solicit comment. In determining for the Deaf (TDD) users may contact survey business contacts as economic whether to approve a collection of (202) 263–4869, Board of Governors of developments warrant. Currently, there information, the Board will consider all the Federal Reserve System, are approximately 2,400 business comments received from the public and Washington, DC 20551. respondents for each survey (about 200 other agencies. per Reserve Bank); occasionally state SUPPLEMENTARY INFORMATION: DATES: Comments must be submitted on and local government officials are or before December 2, 2016. Request for Comment on Information called, in which case there are far fewer ADDRESSES: You may submit comments, Collection Proposals respondents. It is necessary to conduct identified by FR 1374 or FR 2248, by The Board invites public comment on these surveys to provide timely any of the following methods: the following information collection, information to the members of the Board • Agency Web site: http:// which is being reviewed under and to the presidents of the Reserve www.federalreserve.gov. Follow the authority delegated by the OMB under Banks. Usually, these surveys are instructions for submitting comments at the PRA. Comments are invited on the conducted by Reserve Bank economists http://www.federalreserve.gov/apps/ following: telephoning or emailing purchasing foia/proposedregs.aspx . a. Whether the proposed collection of managers, economists, or other • Federal eRulemaking Portal: http:// information is necessary for the proper knowledgeable individuals at selected, www.regulations.gov. Follow the performance of the Federal Reserve’s relevant businesses. Reserve Bank staff instructions for submitting comments. functions; including whether the may also use online survey tools to • Email: regs.comments@ information has practical utility; collect responses to the survey. The federalreserve.gov. Include OMB b. The accuracy of the Federal frequency and content of the questions, number in the subject line of the Reserve’s estimate of the burden of the as well as the entities contacted, vary message. proposed information collection, depending on developments in the • FAX: (202) 452–3819 or (202) 452– including the validity of the economy. Second, economists at the 3102. methodology and assumptions used; Board survey business contacts by • Mail: Robert deV. Frierson, c. Ways to enhance the quality, telephone, inquiring about current Secretary, Board of Governors of the utility, and clarity of the information to business conditions. Board economists Federal Reserve System, 20th Street and be collected; conduct these surveys as economic Constitution Avenue NW., Washington, d. Ways to minimize the burden of conditions require, with approximately DC 20551. information collection on respondents, ten respondents for each survey. All public comments are available including through the use of automated Legal authorization and from the Board’s Web site at http:// collection techniques or other forms of confidentiality: The Board’s Legal www.federalreserve.gov/apps/foia/ information technology; and Division has determined that the Board proposedregs.aspx as submitted, unless e. Estimates of capital or startup costs is authorized to collect this information modified for technical reasons. and costs of operation, maintenance, under sections 2A and 12A of the Accordingly, your comments will not be and purchase of services to provide Federal Reserve Act (12 U.S.C. 225a and edited to remove any identifying or information. 263) and that respondent participation
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in the survey is voluntary. Although the Board of Governors of the Federal Reserve The meetings will be closed to the names of the participating entities might System, September 28, 2016. public in accordance with the be disclosed in the summary memo and Robert deV. Frierson, provisions set forth in sections the memo might contain information Secretary of the Board. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., provided to the Board for internal use [FR Doc. 2016–23781 Filed 9–30–16; 8:45 am] as amended. The grant applications and only, exemption 4 of the Freedom of BILLING CODE 6210–01–P the discussions could disclose Information Act (5 U.S.C. 552(b)(4)) may confidential trade secrets or commercial exempt this information from disclosure property such as patentable material, and personal information concerning to the public. However, if the DEPARTMENT OF HEALTH AND individuals associated with the grant information collected on the FR 1374 HUMAN SERVICES does not meet these standards for applications, the disclosure of which confidentiality (for example if the Centers for Disease Control and would constitute a clearly unwarranted information collected is already public), Prevention invasion of personal privacy. it would not be granted confidential Name of Committee: National Cancer treatment. [CDC–2015–0034, Docket Number NIOSH Institute Special Emphasis Panel; NCI 233–A] Provocative Questions—PQ2. 2. Report title: Domestic Finance Date: October 20, 2016. Company Report of Consolidated Assets NIOSH List of Antineoplastic and Other Time: 12:00 p.m. to 5:00 p.m. and Liabilities. Hazardous Drugs in Healthcare Agenda: To review and evaluate grant Agency form number: FR 2248. Settings 2016 applications. Place: National Cancer Institute, Shady OMB control number: 7100–0005. AGENCY: National Institute for Grove, 9609 Medical Center Drive, Room Frequency: Monthly, quarterly, and Occupational Safety and Health 6W030, Rockville, MD 20850, (Telephone semi-annually. (NIOSH), Centers for Disease Control Conference Call). and Prevention (CDC), Department of Contact Person: Zhiqiang Zou, MD, Ph.D., Respondents: Domestic finance Health and Human Services (HHS). Scientific Review Officer, Special Review companies and mortgage companies. Branch, Division of Extramural Activities, ACTION: Notice of issuance of final Estimated number of respondents: National Cancer Institute, 9609 Medical guidance publication. Center Drive, Room 7W242, Rockville, MD 450. 20892–9750, 240–276–6372, zouzhiq@ Estimated average hours per response: SUMMARY: The National Institute for mail.nih.gov. Occupational Safety and Health Monthly, 20 minutes; Quarterly, 30 Name of Committee: National Cancer minutes; Addendum, 10 minutes. (NIOSH) of the Centers for Disease Control and Prevention (CDC), Institute Special Emphasis Panel; Estimated annual burden hours: 750 announces the availability of the Regional Centers of Research, hours. following publication: NIOSH List of Excellence in Non-Communicable General Description of Report: The FR Antineoplastic and Other Hazardous Diseases in Low and Middle Income 2248 is collected monthly as of the last Drugs in Healthcare Settings 2016 Countries. calendar day of the month from a [2016–161]. Date: October 25, 2016. Time: 8:00 a.m. to 5:00 p.m. stratified sample of finance companies. ADDRESSES: This document may be Each monthly report collects balance obtained at the following link: http:// Agenda: To review and evaluate grant sheet data on major categories of www.cdc.gov/niosh/docs/2016-161/. applications. Place: Hyatt Regency Bethesda, One consumer and business credit FOR FURTHER INFORMATION CONTACT: Bethesda Metro Center, 7400 Wisconsin receivables and on major short-term Barbara A. MacKenzie, NIOSH Division liabilities. For quarter-end months Avenue, Bethesda, MD 20814. of Applied Research and Technology, Contact Person: Shamala K. Srinivas, (March, June, September, and 1090 Tusculum Avenue, MS C–26, December), additional asset and liability Ph.D., Scientific Review Officer, Office Cincinnati, OH 45226. 513–533–8132 of Referral, Review and Program items are collected to provide a full (not a toll free number), bmackenzie@ balance sheet. A supplemental section Coordination, Division of Extramural cdc.gov. Activities, National Cancer Institute, collects data on securitized assets. The Dated: September 27, 2016. 9609 Medical Center Drive, Room data are used to construct universe Frank Hearl, 7W530, Rockville, MD 20892–9750, estimates of finance company holdings, 240–276–5856, [email protected] which are published in the monthly Chief of Staff, National Institute for Occupational Safety and Health, Centers for Name of Committee: National Cancer statistical releases Finance Companies Disease Control and Prevention. Institute Special Emphasis Panel; (G.20) and Consumer Credit (G.19), in [FR Doc. 2016–23719 Filed 9–30–16; 8:45 am] Innovative Molecular Analysis the quarterly statistical release Flow of BILLING CODE 4163–19–P Technologies (IMAT). Funds Accounts of the United States Date: October 27–28, 2016. (Z.1), and in the Federal Reserve Time: 8:00 a.m. to 6:00 p.m. Bulletin (Tables 1.51, 1.52, and 1.55). DEPARTMENT OF HEALTH AND Agenda: To review and evaluate grant Legal authorization and HUMAN SERVICES applications. confidentiality: The Board’s Legal Place: Doubletree Hotel Bethesda, Division has determined that the FR National Institutes of Health 8120 Wisconsin Avenue, Bethesda, MD 2248 is authorized by law pursuant to National Cancer Institute; Notice of 20814. Section 2A of the Federal Reserve Act, Closed Meetings Contact Person: Reed A. Graves, 12 U.S.C. 225a). The obligation to Ph.D., Scientific Review Officer, respond is voluntary. Individual Pursuant to section 10(d) of the Research and Technology and Contract respondent data are confidential under Federal Advisory Committee Act, as Review Branch, Division of Extramural section (b)(4) of the Freedom of amended (5 U.S.C. App.), notice is Activities, National Cancer Institute, Information Act (5 U.S.C. 552(b)(4)). hereby given of the following meetings. 9609 Medical Center Drive, Room
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7W264, Rockville, MD 20892–9750, Contact Person: Yisong Wang, Ph.D., Name of Committee: National Institute on 240–276–6384, [email protected]. Scientific Review Officer, Special Aging Special Emphasis Panel; Multi–Omics Name of Committee: National Cancer Review Branch, Division of Extramural in Osteoporosis. Activities, National Cancer Institute, Date: October 25, 2016. Institute Special Emphasis Panel; NCI Time: 1:00 p.m. to 5:00 p.m. Provocative Questions—PQ4. 9609 Medical Center Drive, Room Agenda: To review and evaluate grant Date: November 3, 2016. 7W240, Rockville, MD 20892–9750, applications. Time: 12:00 p.m. to 3:00 p.m. 240–276–7157, [email protected]. Place: National Institute on Aging, Agenda: To review and evaluate grant Name of Committee: National Cancer Gateway Building, 2W200, 7201 Wisconsin applications. Institute Special Emphasis Panel; Avenue, Bethesda, MD 20892, (Telephone Place: National Cancer Institute, Provocative Questions in Cancer with Conference Call). Shady Grove, 9609 Medical Center an Underlying HIV Infection. Contact Person: Nijaguna Prasad, MS, Drive, Room 7W032/034, Rockville, MD Date: November 16, 2016. Ph.D., Scientific Review Officer, Scientific 20850, (Telephone Conference Call). Time: 11:00 a.m. to 4:00 p.m. Review Branch, National Institute of Aging, Contact Person: Zhiqiang Zou, MD, Agenda: To review and evaluate grant National Institutes of Health, Bethesda, MD Ph.D., Scientific Review Officer, Special applications. 20892, 301–496–9667, nijaguna.prasad@ nih.gov. Review Branch, Division of Extramural Place: National Cancer Institute, Activities, National Cancer Institute, Shady Grove, 9609 Medical Center (Catalogue of Federal Domestic Assistance Program Nos. 93.866, Aging Research, 9609 Medical Center Drive, Room Drive, Room 4E030, Rockville, MD National Institutes of Health, HHS) 7W242, Rockville, MD 20892–9750, 20850, (Telephone Conference Call). 240–276–6372, [email protected]. Contact Person: Clifford W. Dated: September 27, 2016. Name of Committee: National Cancer Schweinfest, Ph.D., Scientific Review Melanie J. Gray, Institute Special Emphasis Panel; Officer, Special Review Branch, Program Analyst, Office of Federal Advisory Fundamental Mechanisms of Affective Division of Extramural Activities, Committee Policy. and Decisional Process in Cancer National Cancer Institute, 9609 Medical [FR Doc. 2016–23735 Filed 9–30–16; 8:45 am] Control. Center Drive, Room 7W108, Rockville, BILLING CODE 4140–01–P Date: November 4, 2016. MD 20892–9750, 240–276–6343, Time: 11:00 a.m. to 4:00 p.m. [email protected]. Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND applications. Program Nos. 93.392, Cancer Construction; HUMAN SERVICES Place: National Cancer Institute, 93.393, Cancer Cause and Prevention Shady Grove, 9609 Medical Center Research; 93.394, Cancer Detection and National Institutes of Health Drive, Room 2W910, Rockville, MD Diagnosis Research; 93.395, Cancer 20850, (Telephone Conference Call). Treatment Research; 93.396, Cancer Biology Notice of Correction for Contact Person: Thomas A. Winters, Research; 93.397, Cancer Centers Support; Announcement of Requirements and 93.398, Cancer Research Manpower; 93.399, Ph.D., Scientific Review Officer, Special Registration for ‘‘Antimicrobial Cancer Control, National Institutes of Health, Resistance Rapid, Point-of-Need Review Branch, Division of Extramural HHS) Activities, National Cancer Institute, Diagnostic Test’’ Challenge 9609 Medical Center Drive, Room Dated: September 27, 2016. Melanie J. Gray, The National Institutes of Health 7W112, Rockville, MD 20892–9750, (NIH) is correcting a notice previously 240–276–6386, [email protected]. Program Analyst, Office of Federal Advisory Committee Policy. published in the Federal Register on Name of Committee: National Cancer September 8, 2016 (81 FR 62150), titled Institute Special Emphasis Panel; NCI [FR Doc. 2016–23734 Filed 9–30–16; 8:45 am] BILLING CODE 4140–01–P ‘‘Announcement of Requirements and Provocative Questions—PQ6. Registration for ‘Antimicrobial Date: November 4, 2016. Resistance Rapid, Point-of-Need Time: 12:00 p.m. to 4:00 p.m. Diagnostic Test’ Challenge.’’ The notice Agenda: To review and evaluate grant DEPARTMENT OF HEALTH AND announced the Antimicrobial Resistance applications. HUMAN SERVICES Place: National Cancer Institute, Rapid, Point-of-Need challenge National Institutes of Health Shady Grove, 9609 Medical Center competition that may result in the Drive, Room 6W034, Rockville, MD awarding of $20 million dollars for the National Institute on Aging; Notice of successful development of new, 20850, (Telephone Conference Call). Closed Meeting Contact Person: Zhiqiang Zou, MD, innovative, accurate, and cost-effective Ph.D., Scientific Review Officer, Special Pursuant to section 10(d) of the in vitro diagnostic tests that would Review Branch, Division of Extramural Federal Advisory Committee Act, as rapidly inform clinical treatment Activities, National Cancer Institute, amended (5 U.S.C. App.), notice is decisions and be of significant clinical 9609 Medical Center Drive, Room hereby given of the following meeting. and public health utility to combat the 7W242, Rockville, MD 20892–9750, The meeting will be closed to the development and spread of antibiotic 240–276–6372, [email protected]. public in accordance with the resistant bacteria and improve antibiotic stewardship. Name of Committee: National Cancer provisions set forth in sections Institute Special Emphasis Panel; NCI 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., The NIH is correcting and clarifying Provocative Questions—PQ8. as amended. The grant applications and several components of the Challenge Date: November 10, 2016. the discussions could disclose competition including: Time: 12:00 p.m. to 5:00 p.m. confidential trade secrets or commercial (1) The letter of intent must be Agenda: To review and evaluate grant property such as patentable material, submitted by December 23, 2016, for all applications. and personal information concerning ‘‘Solvers’’ planning to submit for the Place: National Cancer Institute, individuals associated with the grant Step 1 (Theoretical) stage of the Shady Grove, 9609 Medical Center applications, the disclosure of which competition. The September 8, 2016 Drive, Room 7W032/034, Rockville, MD would constitute a clearly unwarranted announcement incorrectly stated that 20850, (Telephone Conference Call). invasion of personal privacy. the letter of intent prior to Step 1 was
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required but a specific due date was not 496–2229 or by email DEPARTMENT OF HEALTH AND stated. [email protected]. HUMAN SERVICES (2) Any Appendix submitted for Step Dated: September 27, 2016. 1 of the Challenge competition must be Substance Abuse and Mental Health limited to 5 pages or less in length. If Lawrence A. Tabak, Services Administration a longer Appendix is submitted, only Deputy Director, National Institutes of Health. the first 5 pages will be considered by [FR Doc. 2016–23854 Filed 9–30–16; 8:45 am] Current List of HHS-Certified the Technical Evaluation Panel and the BILLING CODE 4140–01–P Laboratories and Instrumented Initial Judging Panel. The September 8, 2016, Testing Facilities Which Meet Minimum announcement incorrectly stated that Standards To Engage in Urine Drug there was no page length for the DEPARTMENT OF HEALTH AND Testing for Federal Agencies Appendix material. HUMAN SERVICES AGENCY: Substance Abuse and Mental (3) Submissions for Step 1 of the Health Services Administration, HHS Challenge competition received after the National Institutes of Health deadline of January 9, 2017, at 11:59 ACTION: Notice. p.m. ET will be disqualified and not National Institute of Allergy and SUMMARY: The Department of Health and evaluated by the Technical Evaluation Infectious Diseases; Notice of Closed Human Services (HHS) notifies federal Panel or Judging Panel. Meeting (4) Solvers may submit corrections or agencies of the laboratories and additional materials in support of their Pursuant to section 10(d) of the Instrumented Initial Testing Facilities Step 1 submissions so long as the NIH Federal Advisory Committee Act, as (IITF) currently certified to meet the standards of the Mandatory Guidelines receives the materials by the deadline of amended (5 U.S.C. App.), notice is for Federal Workplace Drug Testing January 9, 2017, at 11:59 p.m. ET. hereby given of the following meeting. Corrections or additional materials for Programs (Mandatory Guidelines). The The meeting will be closed to the Step 1 will not be accepted or evaluated Mandatory Guidelines were first public in accordance with the by the Technical Evaluation Panel or published in the Federal Register on provisions set forth in sections Judging Panel if they are received after April 11, 1988 (53 FR 11970), and January 9, 2017 at 11:59 p.m. ET. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., subsequently revised in the Federal (5) The NIH will perform an initial as amended. The grant applications and Register on June 9, 1994 (59 FR 29908); review of all submissions to ensure they the discussions could disclose September 30, 1997 (62 FR 51118); are complete and within the scope of confidential trade secrets or commercial April 13, 2004 (69 FR 19644); November the Challenge competition. Submissions property such as patentable material, 25, 2008 (73 FR 71858); December 10, that are incomplete will be and personal information concerning 2008 (73 FR 75122); and on April 30, administratively disqualified and will individuals associated with the grant 2010 (75 FR 22809). not be evaluated by the Technical applications, the disclosure of which A notice listing all currently HHS- Evaluation Panel or the Judging Panel. would constitute a clearly unwarranted certified laboratories and IITFs is (6) The NIH and Assistant Secretary invasion of personal privacy. published in the Federal Register for Preparedness and Response/ during the first week of each month. If Name of Committee: National Institute of Biomedical Advanced Research and any laboratory or IITF certification is Allergy and Infectious Diseases Special Development Authority may determine suspended or revoked, the laboratory or Emphasis Panel; NIAID Clinical Trial that based on the number of IITF will be omitted from subsequent Planning Grant (R34) and NIAID Investigator lists until such time as it is restored to submissions received for Step 1 that less Initiated Program Project Applications (P01). competitive submissions will not be full certification under the Mandatory Date: October 28, 2016. Guidelines. discussed by the Technical Evaluation Time: 8:00 a.m. to 3:00 p.m. If any laboratory or IITF has Panel during the Panel’s meeting. Agenda: To review and evaluate grant withdrawn from the HHS National (7) The ‘‘Solver’’ needs to address the applications. NIH Human Subjects Protections and Place: National Institutes of Health, 5601 Laboratory Certification Program (NLCP) Inclusion of Women, Children, and Fishers Lane, Rockville, MD 20892, during the past month, it will be listed Minorities policies in their submissions (Telephone Conference Call). at the end and will be omitted from the for Step 1 of this competition. Contact Person: Zhuqing (Charlie) Li, monthly listing thereafter. (8) Members of the Technical Ph.D., Scientific Review Officer, Scientific This notice is also available on the Evaluation Panel are not eligible to Review Program, Division of Extramural Internet at http://www.samhsa.gov/ participate in or contribute to any Activities, Room # 3G41B, National Institutes workplace. proposal for Step 2 and Step 3 of the of Health/NIAID, 5601 Fishers Lane, FOR FURTHER INFORMATION CONTACT: Challenge competition. MSC9823 Bethesda, MD 20892–9823, (240) Giselle Hersh, Division of Workplace (9) Any Solver is eligible for Step 2 of 669–5068, [email protected]. this Challenge competition. For Programs, SAMHSA/CSAP, 5600 example, if a Step 1 ‘‘Solver’’ is not (Catalogue of Federal Domestic Assistance Fishers Lane, Room 16N03A, Rockville, Program Nos. 93.855, Allergy, Immunology, identified as a semifinalist, he/she may Maryland 20857; 240–276–2600 (voice). and Transplantation Research; 93.856, still submit for Step 2 of this SUPPLEMENTARY INFORMATION: The Microbiology and Infectious Diseases competition and those who did not Mandatory Guidelines were initially Research, National Institutes of Health, HHS) submit a Step 1 proposal may still developed in accordance with Executive submit a proposal for Step 2. Dated: September 27, 2016. Order 12564 and section 503 of Public (10) All submissions for Step 1, 2, and Natasha M. Copeland, Law 100–71. The ‘‘Mandatory 3 must be in English. Program Analyst, Office of Federal Advisory Guidelines for Federal Workplace Drug For further information about the Committee Policy. Testing Programs,’’ as amended in the Antimicrobial Resistance Diagnostic [FR Doc. 2016–23736 Filed 9–30–16; 8:45 am] revisions listed above, requires strict Challenge competition, please contact standards that laboratories and IITFs Robert W. Eisinger, Ph.D., NIH, 301– BILLING CODE 4140–01–P must meet in order to conduct drug and
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specimen validity tests on urine 679–1630, (Formerly: Gamma- Pathology Associates Medical specimens for federal agencies. Dynacare Medical Laboratories). Laboratories, 110 West Cliff Dr., To become certified, an applicant ElSohly Laboratories, Inc., 5 Industrial Spokane, WA 99204, 509–755–8991/ laboratory or IITF must undergo three Park Drive, Oxford, MS 38655, 662– 800–541–7891x7. rounds of performance testing plus an 236–2609. Phamatech, Inc., 15175 Innovation on-site inspection. To maintain that Fortes Laboratories, Inc., 25749 SW Drive, San Diego, CA 92128, 888– certification, a laboratory or IITF must Canyon Creek Road, Suite 600, 635–5840. participate in a quarterly performance Wilsonville, OR 97070, 503–486– Quest Diagnostics Incorporated, 1777 testing program plus undergo periodic, 1023. Montreal Circle, Tucker, GA 30084, on-site inspections. Laboratory Corporation of America 800–729–6432, (Formerly: SmithKline Laboratories and IITFs in the Holdings, 7207 N. Gessner Road, Beecham Clinical Laboratories; applicant stage of certification are not to Houston, TX 77040, 713–856–8288/ SmithKline Bio-Science Laboratories). be considered as meeting the minimum 800–800–2387. Quest Diagnostics Incorporated, 400 requirements described in the HHS Laboratory Corporation of America Egypt Road, Norristown, PA 19403, Mandatory Guidelines. A HHS-certified Holdings, 69 First Ave., Raritan, NJ 610–631–4600/877–642–2216, laboratory or IITF must have its letter of 08869, 908–526–2400/800–437–4986, (Formerly: SmithKline Beecham certification from HHS/SAMHSA (Formerly: Roche Biomedical Clinical Laboratories; SmithKline Bio- (formerly: HHS/NIDA), which attests Laboratories, Inc.). Science Laboratories). that it has met minimum standards. Laboratory Corporation of America Quest Diagnostics Incorporated, 8401 In accordance with the Mandatory Holdings, 1904 Alexander Drive, Fallbrook Ave., West Hills, CA 91304, Guidelines dated November 25, 2008 Research Triangle Park, NC 27709, 818–737–6370, (Formerly: SmithKline (73 FR 71858), the following HHS- 919–572–6900/800–833–3984, Beecham Clinical Laboratories). certified laboratories and IITFs meet the (Formerly: LabCorp Occupational Redwood Toxicology Laboratory, minimum standards to conduct drug Testing Services, Inc., CompuChem 3700650 Westwind Blvd., Santa Rosa, and specimen validity tests on urine Laboratories, Inc.; CompuChem CA 95403, 800–255–2159. specimens: Laboratories, Inc., A Subsidiary of Southwest Laboratories, 4625 E. Cotton Roche Biomedical Laboratory; Roche Center Boulevard, Suite 177, Phoenix, HHS-Certified Instrumented Initial CompuChem Laboratories, Inc., A Testing Facilities AZ 85040, 602–438–8507/800–279– Member of the Roche Group). 0027. Dynacare, 6628 50th Street NW., Laboratory Corporation of America STERLING Reference Laboratories, 2617 Edmonton, AB Canada T6B 2N7, 780– Holdings, 1120 Main Street, East L Street, Tacoma, Washington 784–1190, (Formerly: Gamma- Southaven, MS 38671 866–827–8042/ 98421, 800–442–0438. Dynacare Medical Laboratories). 800–233–6339, (Formerly: LabCorp US Army Forensic Toxicology Drug Occupational Testing Services, Inc.; HHS-Certified Laboratories Testing Laboratory, 2490 Wilson St., MedExpress/National Laboratory Fort George G. Meade, MD 20755– ACM Medical Laboratory, Inc., 160 Center). 5235, 301–677–7085, Testing for Elmgrove Park, Rochester, NY 14624, LabOne, Inc. d/b/a Quest Diagnostics, Department of Defense (DoD) 585–429–2264. 10101 Renner Blvd., Lenexa, KS Employees Only. Aegis Analytical Laboratories, Inc., 345 66219, 913–888–3927/800–873–8845, Hill Ave., Nashville, TN 37210, 615– (Formerly: Quest Diagnostics * The Standards Council of Canada 255–2400, (Formerly: Aegis Sciences Incorporated; LabOne, Inc.; Center for (SCC) voted to end its Laboratory Corporation, Aegis Analytical Laboratory Services, a Division of Accreditation Program for Substance Laboratories, Inc., Aegis Analytical LabOne, Inc.). Abuse (LAPSA) effective May 12, 1998. Laboratories). MedTox Laboratories, Inc., 402 W. Laboratories certified through that Alere Toxicology Services, 1111 Newton County Road D, St. Paul, MN 55112, program were accredited to conduct St., Gretna, LA 70053, 504–361–8989/ 651–636–7466/800–832–3244. forensic urine drug testing as required 800–433–3823, (Formerly: Kroll MetroLab-Legacy Laboratory Services, by U.S. Department of Transportation Laboratory Specialists, Inc., 1225 NE 2nd Ave., Portland, OR (DOT) regulations. As of that date, the Laboratory Specialists, Inc.). 97232, 503–413–5295/800–950–5295. certification of those accredited Alere Toxicology Services, 450 Minneapolis Veterans Affairs Medical Canadian laboratories will continue Southlake Blvd., Richmond, VA Center, Forensic Toxicology under DOT authority. The responsibility 23236, 804–378–9130, (Formerly: Laboratory, 1 Veterans Drive, for conducting quarterly performance Kroll Laboratory Specialists, Inc., Minneapolis, MN 55417, 612–725– testing plus periodic on-site inspections Scientific Testing Laboratories, Inc.; 2088, Testing for Veterans Affairs of those LAPSA-accredited laboratories Kroll Scientific Testing Laboratories, (VA) Employees Only. was transferred to the U.S. HHS, with Inc.). National Toxicology Laboratories, Inc., the HHS’ NLCP contractor continuing to Baptist Medical Center-Toxicology 1100 California Ave., Bakersfield, CA have an active role in the performance Laboratory, 11401 I–30, Little Rock, 93304, 661–322–4250/800–350–3515. testing and laboratory inspection AR 72209–7056, 501–202–2783, One Source Toxicology Laboratory, Inc., processes. Other Canadian laboratories (Formerly: Forensic Toxicology 1213 Genoa-Red Bluff, Pasadena, TX wishing to be considered for the NLCP Laboratory Baptist Medical Center). 77504, 888–747–3774, (Formerly: may apply directly to the NLCP Clinical Reference Laboratory, Inc., 8433 University of Texas Medical Branch, contractor just as U.S. laboratories do. Quivira Road, Lenexa, KS 66215– Clinical Chemistry Division; UTMB Upon finding a Canadian laboratory to 2802, 800–445–6917. Pathology-Toxicology Laboratory). be qualified, HHS will recommend that DrugScan, Inc., 200 Precision Road, Pacific Toxicology Laboratories, 9348 DOT certify the laboratory (Federal Suite 200, Horsham, PA 19044, 800– DeSoto Ave., Chatsworth, CA 91311, Register, July 16, 1996) as meeting the 235–4890. 800–328–6942, (Formerly: Centinela minimum standards of the Mandatory Dynacare *, 245 Pall Mall Street, Hospital Airport Toxicology Guidelines published in the Federal London, ONT, Canada N6A 1P4, 519– Laboratory). Register on April 30, 2010 (75 FR
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22809). After receiving DOT SUPPLEMENTARY INFORMATION: On August DEPARTMENT OF HOMELAND certification, the laboratory will be 30, 2016, U.S. Customs and Border SECURITY included in the monthly list of HHS- Protection (CBP) published a notice in certified laboratories and participate in the Federal Register (81 FR 59644) Federal Emergency Management the NLCP certification maintenance announcing plans to make the Agency program. Automated Commercial Environment (ACE) the sole electronic data [Docket ID: FEMA–2016–0017; OMB No. Charles LoDico, 1660–0022] Chemist. interchange (EDI) system authorized by [FR Doc. 2016–23796 Filed 9–30–16; 8:45 am] the Commissioner of U.S. Customs and Agency Information Collection Border Protection (CBP) for processing BILLING CODE 4160–20–P Activities: Submission for OMB electronic drawback and duty deferral Review; Comment Request; entry and entry summary filings, Community Rating System (CRS) effective on October 1, 2016. The Program—Application Worksheets and DEPARTMENT OF HOMELAND document also announced that, on Commentary SECURITY October 1, 2016, the Automated Commercial System (ACS) would no AGENCY: Federal Emergency U.S. Customs and Border Protection longer be a CBP-authorized EDI system Management Agency, DHS. for purposes of processing these ACTION: Notice. Delay of Effective Date for the electronic filings. Finally, the notice Automated Commercial Environment SUMMARY: The Federal Emergency announced a name change for the ACE (ACE) Becoming the Sole CBP- Management Agency (FEMA) will Authorized Electronic Data filing code for duty deferral and the submit the information collection Interchange (EDI) System for creation of a new ACE filing code for all abstracted below to the Office of Processing Electronic Drawback and electronic drawback filings, replacing Management and Budget for review and Duty Deferral Entry and Entry the six distinct drawback codes clearance in accordance with the Summary Filings previously filed in ACS. requirements of the Paperwork CBP has been assessing stakeholder Reduction Act of 1995. The submission AGENCY: U.S. Customs and Border readiness for the mandatory transition will describe the nature of the Protection, Department of Homeland of post-release capabilities in ACE, information collection, the categories of Security. including the transition of electronic respondents, the estimated burden (i.e., ACTION: Delay of effective date. drawback and duty deferral entry and the time, effort and resources used by respondents to respond) and cost, and SUMMARY: On August 30, 2016, U.S. entry summary filings from ACS to ACE. CBP has determined that industry the actual data collection instruments Customs and Border Protection (CBP) FEMA will use. published a notice in the Federal partners need additional time to prepare Register announcing plans to make the for the transition to electronic post- DATES: Comments must be submitted on Automated Commercial Environment release capabilities in ACE. or before November 2, 2016. (ACE) the sole electronic data Accordingly, the effective date for all ADDRESSES: Submit written comments interchange (EDI) system authorized by that was announced in the August 30, on the proposed information collection the Commissioner of U.S. Customs and 2016 Federal Register notice, including to the Office of Information and Border Protection (CBP) for processing the transition to ACE as the sole CBP- Regulatory Affairs, Office of electronic drawback and duty deferral authorized EDI system for electronic Management and Budget. Comments entry and entry summary filings. The drawback and duty deferral entry and should be addressed to the Desk Officer changes announced in that notice were entry summary filings, is delayed until for the Department of Homeland to have been effective on October 1, further notice. CBP will publish a Security, Federal Emergency 2016. This notice announces that the subsequent notice announcing the Management Agency, and sent via electronic mail to oira.submission@ effective date for the transition to ACE effective date. as the sole CBP-authorized EDI system omb.eop.gov. Dated: September 28, 2016. for electronic drawback and duty FOR FURTHER INFORMATION CONTACT: Bill deferral entry and entry summary filings Kevin K. McAleenan, Lesser, Program Specialist, Federal is delayed until further notice. Deputy Commissioner, U.S. Customs and Insurance and Mitigation DATES: The effective date is delayed Border Protection. Administration, (202) 646–2807. You until further notice: CBP will publish a [FR Doc. 2016–23833 Filed 9–30–16; 8:45 am] may contact the Records Management subsequent notice announcing the BILLING CODE 9111–14–P Division for copies of the proposed effective date when ACE will be the sole collection of information at email CBP-authorized EDI system for address: FEMA-Information-Collections- processing electronic drawback and [email protected]. duty deferral entry and entry summary SUPPLEMENTARY INFORMATION: This filings, and ACS will no longer be a proposed information collection CBP-authorized EDI system for purposes previously published in the Federal of processing these filings. Register on July 14, 2016, at 81 FR FOR FURTHER INFORMATION CONTACT: 45517, with a 60 day public comment Questions related to this notice may be period. No comments were received. emailed to [email protected] with The purpose of this notice is to notify the subject line identifier reading ‘‘ACS the public that FEMA will submit the to ACE Drawback and Duty Deferral information collection abstracted below Entry and Entry Summary Filings to the Office of Management and Budget transition’’. for review and clearance.
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Collection of Information Dated: September 22, 2016. management practices. The procedures Title: Community Rating System Richard W. Mattison, DHS developed to significantly reduce (CRS) Program—Application Records Management Program Chief, Mission the number of expired contracts with Worksheets and Commentary. Support, Federal Emergency Management unliquidated funds will enable DHS to Type of Information Collection: Agency, Department of Homeland Security. expeditiously close these actions. DHS Extension, without change, of a [FR Doc. 2016–23820 Filed 9–30–16; 8:45 am] developed the procedures using risk- currently approved information BILLING CODE 9111–52–P based management principles by first collection. identifying and classifying open, OMB Number: 1660–0022. expired contracts as low-risk based on FEMA Forms: FEMA Form 086–0–35, DEPARTMENT OF HOMELAND the following criteria: (i) The contract is Community Rating System Application SECURITY firm-fixed-price; (ii) the contract expired Letter and Quick Check; FEMA Form and the additional time allowed for 086–0–35A, Community Annual Request To Submit Invoices for Over- contract file closeout under Federal Recertifications, and FEMA Form 086– Age Firm-Fixed-Price Contracts Acquisition Regulation (FAR) 4.804–1(a) 0–35B, Environmental and Historic AGENCY: Office of the Chief Procurement has elapsed; and (iii) the contract had Preservation Certifications. Officer, DHS. no invoice or payment activity within Abstract: The CRS Application Letter ACTION: Notice. the past 12 months. & Quick Check, the CRS certification Notwithstanding DHS’s intention to forms, and accompanying guidance are SUMMARY: The Department of Homeland expeditiously closeout the actions used by communities that participate in Security (DHS) currently has contracts identified at the aforementioned list, the National Flood Insurance Program’s that are considered over-age, as the contractors’ rights are protected under (NFIP) Community Rating System period of performance or final delivery 41 U.S.C. chapter 71 Contract Disputes (CRS). The CRS is a voluntary program date of these actions has expired and the (commonly known as the Contract where flood insurance costs are reduced time allowed for contract file closeout Disputes Act of 1978), which establishes in communities that implement has elapsed. To clear the backlog of procedures for filing claims against practices, such as building codes and over-age contracts, DHS developed Federal Government contracts. Normal public awareness activities, which are procedures that would enable the contract file retention requirements will considered to reduce the risks of Agency to closeout these elapsed apply after closeouts (See FAR 4.805, flooding and promote the purchase of actions in an efficient and cost effective Storage, handling, and disposal of flood insurance. manner. These procedures required the contract files.) This notice will also be Affected Public: State, local, or Tribal Agency to identify those expired published to FedBizOpps. government. contracts that could more easily be Dated: September 8, 2016. Number of Respondents: 1,579. closed-out based on certain criteria that Soraya Correa, Number of Responses: 1,579. would deem them low-risk, such as Chief Procurement Officer. Estimated Total Annual Burden firm-fixed-price contracts containing no Chip Fulghum, Hours: 41,936 hours. outstanding issues and no invoice or Estimated Cost: The estimated annual Deputy Under Secretary for Management and payment activity within the past year. Chief Financial Officer. cost to respondents for the hour burden These contracts are listed at https:// is $2,442,795.30. There are no annual dhs.gov/publication/low-risk-closeout. [FR Doc. 2016–22118 Filed 9–30–16; 8:45 am] costs to respondents’ operations and To facilitate the closeout of these BILLING CODE 9110–9B–P maintenance costs for technical actions, DHS requests that contractors services. There are no annual start-up or with contracts identified on this list capital costs. The cost to the Federal submit any outstanding invoices to the DEPARTMENT OF HOUSING AND Government is $5,425,600.00. cognizant DHS Component contracting URBAN DEVELOPMENT Comments activities within 60 days after the [Docket No. FR–5913–N–28] publication of this notice. Comments may be submitted as 60-Day Notice of Proposed Information indicated in the ADDRESSES caption DATES: For the contract actions listed at https://dhs.gov/publication/low-risk- Collection: Utility Allowance above. Comments are solicited to (a) Adjustments for Rental Assistance evaluate whether the proposed data closeout, submit all outstanding collection is necessary for the proper invoices to the cognizant DHS AGENCY: Office of the Assistant performance of the agency, including Component contracting activities on or Secretary for Housing—Federal Housing whether the information shall have before December 2, 2016. Commissioner, HUD. practical utility; (b) evaluate the ADDRESSES: Go to https://dhs.gov/ ACTION: Notice. accuracy of the agency’s estimate of the publication/low-risk-closeout for burden of the proposed collection of guidance on where to submit invoices. SUMMARY: HUD is seeking approval from information, including the validity of FOR FURTHER INFORMATION CONTACT: Eric the Office of Management and Budget the methodology and assumptions used; Cho, Office of the Chief Procurement (OMB) for the information collection (c) enhance the quality, utility, and Officer, Department of Homeland described below. In accordance with the clarity of the information to be Security, 245 Murray Lane SW., Paperwork Reduction Act, HUD is collected; and (d) minimize the burden Building 410, Washington, DC 20528, requesting comment from all interested of the collection of information on those telephone: 202–447–0271; email: parties on the proposed collection of who are to respond, including through [email protected]. information. The purpose of this notice is to allow for 60 days of public the use of appropriate automated, SUPPLEMENTARY INFORMATION: DHS’s electronic, mechanical, or other contract closeout backlog not only poses comment. technological collection techniques or a significant burden to various DATES: Comments Due Date: December other forms of information technology, acquisition and financial systems, but it 2, 2016. e.g., permitting electronic submission of also impedes DHS’s on-going efforts to ADDRESSES: Interested persons are responses. strengthen and modernize its financial invited to submit comments regarding
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this proposal. Comments should refer to (1) Whether the proposed collection free Federal Relay Service at 1–800– the proposal by name and/or OMB of information is necessary for the 877–8339. Control Number and should be sent to: proper performance of the functions of SUPPLEMENTARY INFORMATION: The Colette Pollard, Reports Management the agency, including whether the Assistant Secretary for Policy Officer, QDAM, Department of Housing information will have practical utility; Development and Research is issuing and Urban Development, 451 7th Street (2) The accuracy of the agency’s this Order of Succession of officials SW., Room 4176, Washington, DC estimate of the burden of the proposed authorized to perform the duties and 20410–5000; telephone 202–402–3400 collection of information; functions of the Office of the Assistant (this is not a toll-free number) or email (3) Ways to enhance the quality, Secretary when, by reason of absence, at [email protected] for a copy of utility, and clarity of the information to disability, or vacancy in office, the the proposed forms or other available be collected; and Assistant Secretary is not available to information. Persons with hearing or (4) Ways to minimize the burden of exercise the powers or perform the speech impairments may access this the collection of information on those duties of the Office. This Order of number through TTY by calling the toll- who are to respond; including through Succession is subject to the provisions free Federal Relay Service at (800) 877– the use of appropriate automated of the Vacancy Reform Act of 1998 (5 8339. collection techniques or other forms of U.S.C. 3345–3349d). This publication FOR FURTHER INFORMATION CONTACT: information technology, e.g., permitting supersedes all prior Orders of Harry Messner, Program Analyst, Office electronic submission of responses. Succession for the Office of Policy of Asset Management and Portfolio HUD encourages interested parties to Development and Research, including Oversight, Department of Housing and submit comment in response to these the Order of Succession published on Urban Development, 451 7th Street SW., questions. May 18, 2012 (77 FR 29848). Washington, DC 20410; email Authority: Section 3507 of the Paperwork Accordingly, the Assistant Secretary [email protected] or telephone Reduction Act of 1995, 44 U.S.C. Chapter 35. for Policy Development and Research designates the following Order of 202–402–2626. This is not a toll-free Dated: September 8, 2016. Succession: number. Persons with hearing or speech Genger Charles, impairments may access this number General Deputy Assistant Secretary for Section A. Order of Succession through TTY by calling the toll-free Housing—Deputy Federal Housing Subject to the provision of the Federal Relay Service at (800) 877–8339. Commissioner. Copies of available documents Vacancy Reform Act of 1998, during any [FR Doc. 2016–23852 Filed 9–30–16; 8:45 am] submitted to OMB may be obtained period when, by reason of absence, BILLING CODE 4210–67–P from Ms. Pollard. disability, or vacancy in office, the Assistant Secretary for Policy SUPPLEMENTARY INFORMATION: This Development and Research is not notice informs the public that HUD is DEPARTMENT OF HOUSING AND available to exercise the powers or seeking approval from OMB for the URBAN DEVELOPMENT perform the duties of the Office of the information collection described in Assistant Secretary for Policy [Docket No. FR–5970–D–01] Section A. Development and Research, the A. Overview of Information Collection Order of Succession for the Office of following officials within the Office of Policy Development and Research are Title of Information Collection: Utility Policy Development and Research hereby designated to exercise the Allowance Adjustments for Rental AGENCY: Office of the Assistant powers and perform the duties of the Assistance. Secretary for Policy Development and Office, including the authority to waive OMB Approval Number: 2502–0352. Research, HUD. regulations: Type of Request: Extension of ACTION: Notice of order of succession. (1) Deputy Assistant Secretary for currently approved collection. Policy Development; Form Number: None. SUMMARY: In this notice, the Assistant (2) General Deputy Assistant Description of the Need for the Secretary for Policy Development and Secretary; Information and Proposed Use: Research designates the Order of (3) Deputy Assistant Secretary for Multifamily project owners are required Succession for the Office of Assistant Research, Evaluation, and Monitoring; to advise the Secretary of the need for Secretary for Policy Development and (4) Deputy Assistant Secretary for and request approval of a new utility Research. This Order of Succession Economic Affairs. allowance for tenants. supersedes all prior Orders of These officials shall perform the Respondents: (projects with tenant Succession for the Office of Policy and functions and duties of the Office in the paid utilities): Development, including the Order of order specified herein, and no official Estimated Number of Respondents: Succession published on May 18, 2012. shall serve unless all the other officials, 5,644. DATES: Effective Date: September 28, whose position titles precede his or hers Estimated Number of Responses: 2016. in this order, are unable to act by reason 1,524. of absence, disability, or vacancy in Frequency of Response: Various. FOR FURTHER INFORMATION CONTACT: office. No individual who is serving in Average Hours per Response: 0.5 Matthew Ammon, General Deputy an office listed below in an acting hours. Assistant Secretary, Office of Policy capacity may act as Assistant Secretary Total Estimated Burden: 762. Development and Research, Department for Policy Development and Research of Housing and Urban Development, pursuant to this Order of Succession. B. Solicitation of Public Comment 451 7th Street SW., Room 8228, This notice is soliciting comments Washington, DC 20410–6000, telephone Section B. Authority Superseded from members of the public and affected (202) 402–4337. (This is not a toll-free This Order of Succession supersedes parties concerning the collection of number.) Persons with hearing- or all prior Orders of Succession for the information described in Section A on speech-impairments may access this Office of Policy Development and the following: number through TTY by calling the toll- Research, including the Order of
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Succession published on May 18, 2012 Affairs; or 30 days after HUD publishes inaccurate rental assistance, and may (77 FR 29848). notice of the computer matching provide indicators for potential Authority: Section 7(d) of the Department program in the Federal Register, unless administrative or legal actions. The of Housing and Urban Development Act, 42 changes to the matching program are matching program will be carried out to U.S.C. 3535(d). required due to public comments or by detect inappropriate or inaccurate rental Congressional or by Office of assistance under sections 221(d)(3), Dated: September 28, 2016. Management and Budget objections. 221(d)(5), and 236 of the National Katherine M. O’Regan, Any public comment must be received Housing Act, the United States Housing Assistant Secretary for Policy Development before the effective comment due date. Act of 1937, section 101 of the Housing and Research. Comments Due Date: November 2, and Community Development Act of [FR Doc. 2016–23855 Filed 9–30–16; 8:45 am] 2016. 1965, section 202 of the Housing Act of BILLING CODE 4210–67–P ADDRESSES: Interested persons are 1959, section 811 of the Cranston- invited to submit comments regarding Gonzalez National Affordable Housing this notice to the Rules Docket Clerk, Act, the Native American Housing DEPARTMENT OF HOUSING AND Assistance and Self-Determination Act URBAN DEVELOPMENT Office of General Counsel, Department of Housing and Urban Development, of 1996, and the Quality Housing and [Docket No. FR–5921–N–16] 451 Seventh Street SW., Room 10276, Work Responsibility Act (QHWRA) of Washington, DC 20410–0500. 1998. On March 11, 2009, Section 239 Privacy Act of 1974; Notice of a Communications should refer to the of HUD’s 2009 Appropriations Act Computer Matching Program Between above docket number and title. modified Section 904 of the Stewart B. the Department of Housing and Urban Comments sent by facsimile are not McKinney Act of 1988, as amended, to Development (HUD) and the Social acceptable. A copy of each include the Disaster Housing Assistance Security Administration (SSA): communication submitted will be program (DHAP) as a covered HUD Matching Tenant Data in Assisted available for public inspection and rental assistance program in HUD Housing Programs copying between 8:00 a.m. and 5:00 computer matching activities. The computer matching program will also AGENCY: Office of Administration, HUD. p.m. weekdays at the above address. FOR FURTHER INFORMATION CONTACT: For provide for the verification of social ACTION: Notice of a computer matching security numbers (SSNs) of tenants program between HUD and SSA. Privacy Act inquires: Office of Administration, Office of the Executive participating in covered rental SUMMARY: Pursuant to the Computer Secretariat, contact Helen Goff Foster, assistance programs. This notice Matching and Privacy Protection Act of Executive Secretary/Senior Agency provides an overview of computer 1988, as amended, and the Office of Official for Privacy, Department of matching for HUD’s rental assistance Management and Budget’s (OMB) Housing and Urban Development, 451 programs. Specifically, the notice Guidance on the statute (5 U.S.C. 552a, Seventh Street SW., Room 6100, describes HUD’s program for computer as amended), HUD is notifying the Washington, DC 20410, telephone matching of its tenant data to SSA’s public of its intent to execute a new number (202) 402–6836. For program death data, Social Security (SS) and computer matching program with SSA, information: Office of Public and Indian Supplemental Security Income (SSI) benefits data. for a recurring matching program with Housing: Real Estate Assessment Center, The Computer Matching and Privacy HUD’s Office of Public and Indian contact Victoria Alston, Department of Protection Act (CMPPA) of 1988, an Housing (PIH) and Office of Housing. Housing and Urban Development, 451 amendment to the Privacy Act of 1974 The most recent renewal of the current Seventh Street SW., Room PCFL1, (5 U.S.C. 552a), OMB’s guidance on this matching agreement expires on Washington, DC 20410, telephone statute entitled ‘‘Final Guidance November 7, 2016. HUD will obtain number (202) 475–7993; Office of Interpreting the Provisions of Public SSA data and make the results available Housing, contact Danielle Garcia, Law 100–503, the CMPPA of 1988’’ to (1) program administrators such as Director of the Housing Oversight (OMB Guidance), and OMB Circular No. public housing agencies (PHAs) and Division, Department of Housing and A–130 requires publication of notices of private owners and management agents Urban Development, 451 Seventh Street, computer matching programs. Appendix (O/As) (collectively referred to as POAs) SW., Room 6134, Washington, DC I to OMB’s Revision of Circular No. A– to enable them to verify the accuracy of 20410, telephone number (202) 402– 130 (November 28, 2000), ‘‘Transmittal income reported by the tenants 2768. (These are not toll free telephone Memorandum No. 4, Management of (participants) of HUD rental assistance numbers). A telecommunications device Federal Information Resources,’’ programs and (2) contract for hearing-and speech-impaired prescribes Federal agency administrators (CAs) overseeing and individuals (TTY) is available at (800) responsibilities for maintaining records monitoring O/A operations as well as 877–8339. (Federal Relay Service). about individuals. In compliance with independent public auditors (IPAs) that SUPPLEMENTARY INFORMATION: This the CMPPA and Appendix I to OMB audit both PHAs and O/As. notice supersedes a similar notice Circular No. A–130, copies of this notice DATES: Effective Date: The effective date published in the Federal Register (FR) are being provided to the Committee on of this agreement, and the date the on September 14, 2011, at 76 FR 56781. Government Reform and Oversight of match may begin is the later of the Administrators of HUD rental assistance the House of Representatives, the following dates: 40 days after HUD files programs rely upon the accuracy of Committee of Homeland Security and a report of the subject matching program tenant-reported income to determine Governmental Affairs of the Senate, and with the Committee on Oversight and participant eligibility for and level of, OMB’s Office of Information and Government Reform of the House of rental assistance. The computer Regulatory Affairs. Representatives, the Committee on matching program may provide Homeland Security and Governmental indicators of potential tenant I. Authority Affairs of the Senate, and the Office of unreported or under-reported income, This matching program is being Management and Budget’s (OMB), which will require additional conducted pursuant to the Privacy Act Office of Information and Regulatory verification to identify inappropriate or of 1974 (5 U.S.C 552a); 542(b) of the
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1998 Appropriations Act (Pub. L. 105– 4. Presidential Memorandum on complete and accurate. HUD’s various 65); section 904 of the Stewart B. Finding and Recapturing Improper assisted housing programs, McKinney Homeless Assistance Payments (March 10, 2010); administered through POAs, require Amendments Act of 1988 (42 U.S.C. 5. Reducing Improper Payments and that participants meet certain income 3544); section 165 of the Housing and Eliminating Waste in Federal Programs and other criteria to be eligible for rental Community Development Act of 1987 (Executive Order 13520, November assistance. In addition, tenants generally (42 U.S.C. 3543); the National Housing 2009); are required to report the amounts and Act (12 U.S.C. 1701–1750g); the United 6. Improper Payments Information sources of their income at least States Housing Act of 1937 (42 U.S.C. Act of 2002 (Pub. L. 107–300); and annually. However, under the QHWRA 1437–1437z); section 101 of the Housing 7. Office of Management and Budget of 1998, PHAs must offer public housing and Community Development Act of M–03–13, Improper Payments tenants the option to pay a flat rent, or 1965 (12 U.S.C. 1701s); the Native Information Act of 2002 Implementation an income-based rent annually. Those American Housing Assistance and Self- Guide. tenants who select a flat rent will be required to recertify income at least Determination Act of 1996 (25 U.S.C. II. Covered Programs 4101 et seq.); and the QHWRA Act of every three years. In addition, the 1998 (42 U.S.C. 1437a(f)). The Housing This notice of computer matching Changes to the Admissions and and Community Development Act of program applies to the following rental Occupancy Final Rule (March 29, 2000; 1987 authorizes HUD to require assistance programs: 65 FR 16692) specified that household participants of HUD rental housing A. Disaster Housing Assistance Program composition must be recertified assistance programs to disclose their (DHAP) annually for tenants who select a flat social security numbers (SSNs) to HUD B. Public Housing rent or income-based rent. as a condition of continuing (or initial) C. Section 8 Housing Choice Voucher Other objectives of this computer eligibility for participation in the (HCV) matching program include: (1) programs. The QHWRA of 1998, section D. Project-Based Voucher Increasing the availability of rental 508(d), 42 U.S.C. 1437a(f) authorizes the E. Section 8 Moderate Rehabilitation assistance to individuals who meet the Secretary of HUD to require disclosure F. Project-based Section 8 requirements of the rental assistance by the tenant to the PHA of income 1. New Construction programs; (2) after removal of personal information received by the tenant from 2. State Agency Financed identifiers, conducting analyses of the HUD as part of the income verification 3. Substantial Rehabilitation Social Security death data and benefit procedures of HUD. The QHWRA was 4. Section 202/8 information, and income reporting of amended by Public Law 106–74, which 5. Rural Housing Services Section program participants; and (3) measure extended the disclosure requirements to 515/8 improper payments due to under- participants in section 8, section 202, 6. Loan Management Set-Aside reporting of income and/or overpayment and section 811 assistance programs. (LMSA) of subsidy on behalf of deceased 7. Property Disposition Set-Aside The participants are required to disclose program participants. (PDSA) the HUD-provided income information G. Section 101 Rent Supplement III. Program Description to owners responsible for determining H. Section 202/162 Project Assistance HUD will disclose to SSA only tenant the participant’s eligibility or level of Contract (PAC) personal identifiers, i.e., full name, benefits. I. Section 202 Project Rental Assistance Social Security number, and date of The Refinement of Income and Rent Contract (PRAC) birth. SSA will match the HUD- Determination Requirements in Public J. Section 811 Project Rental Assistance provided personal identifiers to and Assisted Housing Programs: Contract (PRAC) personal identifiers included in their Implementation of the Enterprise K. Section 236 Rental Assistance various systems of records identified in Income Verification (EIV) System— Program Section IV of this notice. SSA will Amendments; Final Rule published at L. Section 221(d)(3) Below Market validate HUD-provided personal 74 FR 68924 on December 29, 2009, Interest Rate (BMIR) identifiers and provide income data to requires program administrators to use Note: This notice does not apply to the HUD only for individuals with matched HUD’s EIV system to verify tenant Low Income Housing Tax Credit personal identifiers. SSA will also income information during mandatory (LIHTC) or the Rural Housing provide the date of death or indication reexaminations or recertifications of Services Section 515 without of death for any program participant family composition and income; and Section 8 programs. whose HUD-supplied personal reduce administrative and subsidy identifiers are successfully matched payment errors in accordance with HUD III. Objectives To Be Met by the Matching Program against SSA databases. For any administrative guidance (24 CFR 5.233). individual whose personal identifiers This computer matching program also HUD’s primary objective in do not match the personal identifiers in assists HUD in complying with the implementing the computer matching the SSA database, SSA will provide following federal laws, requirements, program is to verify the income of HUD with an error message, which will and guidance related to identifying and individuals participating in the rental describe the reason(s) for no match (i.e. reducing improper payments: assistance programs identified in incorrect date of birth or surname, or 1. Improper Payments Elimination Section II above, to determine the invalid Social Security number). The and Recovery Act of 2010 (IPERA) (Pub. appropriate level of rental assistance, SSA-provided data will be made L. 111–204); and to detect, deter, reduce and correct available to POAs in HUD’s EIV system. 2. Presidential Memorandum on fraud and abuse in rental housing Enhancing Payment Accuracy Through assistance programs. In meeting this A. Income Verification a ‘‘Do Not Pay List’’ (June 18, 2010); objective, HUD also is carrying out its Any match (i.e., a ‘‘hit’’) will be 3. Office of Management and Budget responsibility under 42 U.S.C. 1437f(K) further reviewed by HUD, the POAs, or M–10–13, Issuance of Part III to OMB to ensure that income data provided to the HUD Office of Inspector General Circular A–123, Appendix C; POAs by household members is (OIG) to determine whether the income
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reported by tenants to the program staff, or the HUD OIG verify, should be HUD data will also be matched to the administrator is correct and complies referred for full investigation and SSA’s Master Files of Social Security with HUD and program administrator appropriate civil and/or criminal Number Holders, and SSN Applications requirements. Specifically, current or proceedings. (60–0058) for the purpose of validating prior SS and SSI benefit information With respect to SSA-provided error SSNs of participants of HUD rental and other data will be sought directly messages regarding HUD-provided assistance programs to identify from tenants. For public housing and tenant, and matched personal noncompliance with program eligibility Section 8 tenant-based HCV programs, identifiers, the POAs’ administrator/ requirements. HUD will compare tenant tenants will be required to provide agent will confirm its file and system SSNs provided by POAs to reveal PHAs with original SSA benefit documentation to confirm accuracy of duplicate SSNs and potential duplicate verification letters dated within the last data elements, and make any necessary rental assistance. 60 days for comparison to computer corrections. If there is no error in the matching results for accuracy. For documentation, the POAs’ V. Period of the Match multifamily housing programs, tenants administrators/agents will notify the The computer matching program will must provide O/As with SSA benefit individual of the error and request that become effective and the matching may the individual contact the SSA to verification letters dated within the last commence after the respective Data correct any SSA data errors. POAs 120 days. For SS and SSI benefit Integrity Boards (DIBs) of both agencies administrators/agents cannot correct information for prior years, the tenant approve and sign the computer such errors. may be required to provide POAs with matching agreement, and after, the later an original benefit history document IV. Records To Be Matched of the following: (1) 40 days after report from SSA if there is a dispute regarding of the matching program is sent to historical income information obtained SSA will conduct the matching of tenant SSNs and additional identifiers Congress and OMB; (2) at least 30 days through the computer matching after publication of this notice in the program. (surnames and dates of birth) to tenant data that HUD supplies from its systems Federal Register, unless comments are B. Administrative or Legal Actions of records known as the Tenant Rental received, which would result in a Regarding all the matching described Assistance Certification System contrary determination. The computer in this notice, POAs will take (TRACS), a component of HUD’s Tenant matching program will be conducted appropriate action in consultation with Housing Assistance and Contract according to the computer matching tenants to: (1) Resolve income Verification Data System (HUD/H–11), agreement between HUD and SSA. The disparities between tenant-reported and and the Inventory Management System computer matching agreement for the SSA-reported data; and (2) Use correct (IMS), formerly known as the Public and planned matches will terminate either income amounts in determining rental Indian Housing Information Center when the purpose of the computer assistance. (PIC) (HUD/PIH.01). The notice for these matching program is accomplished, or POAs must compute the rent in full systems was published at 62 FR 11909 18 months from the effective date of the compliance with all applicable statutes, on March 13, 1997, and 77 FR 22337 on computer matching agreement. The regulations and administrator policies. April 13, 2012, respectively. Program agreement may be renewed for one 12- POAs must ensure that they use the administrators utilize the form HUD– month period, with the mutual correct income and correctly compute 50058 module within the PIC system agreement of all involved parties, if the the rent. In order to protect any and the form HUD–50059 module following conditions are met: (1) Within individual whose records are used in within the TRACS to provide HUD with three months of the expiration date, all this matching program, POAs may not the tenant data. DIBs review the agreement, find that the suspend, terminate, reduce, or make a SSA will match the tenant records program will be conducted without final denial of any rental assistance to included in HUD/H–11 and HUD/PIH– change, and find a continued favorable any tenant, or take other adverse action 4 to their systems of records known as examination of benefit/cost results; and against the tenant as a result of SSA’s Master Files of Social Security (2) All parties certify that the program information produced by this matching Number Holders, and SSN Applications has been conducted in compliance with program until: (a) The tenant has (60–0058), published at 75 FR 82121 on the computer matching agreement. received notice from the POA of its December 29, 2010; Master Beneficiary The agreement may be terminated, findings and has been informed of the Record (60–0090), published at 71 FR prior to accomplishment of the opportunity to contest such findings; (b) 1826 on January 11, 2006; and computer matching purpose or 18 The POA has independently verified the Supplemental Security Income Record months from the effective date of the information; and (c) either the notice and Special Veterans Benefits (60– computer matching agreement period provided in applicable 0103), published at 71 FR 1830 on (whichever comes first), by the mutual regulations of the program, or 30 days, January 11, 2006. HUD will place the agreement of all involved parties within whichever is later, has expired. resulting matched data into its 30 days of written notice. ‘‘Independently verified’’ in item (b) Enterprise Income Verification (EIV) Authority: 5 U.S.C. 552a, 88 Stat. 1896; 42 means the specific information relating system (HUD/PIH–5). The notice for this U.S.C. 3535(d). to the tenant that is used as a basis for system was initially published at 70 FR an adverse action has been investigated 41780 on July 20, 2005, and last Dated: September 27, 2016. and confirmed by the POA. (5 U.S.C. amended on September 1, 2009 (74 FR Helen Goff Foster, 552a). As such, POAs must resolve 45235). The tenant records (one record Executive Secretary/Senior Agency Official income discrepancies in consultation for each family member) include these for Privacy. with tenants. Additionally, serious data elements: full name, SSN, and date [FR Doc. 2016–23856 Filed 9–30–16; 8:45 am] violations, which POAs, HUD Program of birth. BILLING CODE 4210–67–P
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DEPARTMENT OF THE INTERIOR Service regulations implementing contribute to the recovery of listed these statutes and treaties are in chapter species on non-Federal lands, Fish and Wildlife Service I, subchapter B of title 50 of the Code participating property owners receive [FWS–HQ–ES–2016–N169; FF09E00000 167 of Federal Regulations. These formal assurances from the Service that FXES11130900000] regulations stipulate general and if they fulfill the conditions of the SHA, specific requirements that when met the Service will not require any Proposed Information Collection; allow us to issue permits to authorize additional or different management Federal Fish and Wildlife Permits, activities that are otherwise prohibited. activities by the participants without Applications, and Reports—Native This IC includes the following permit their consent. In addition, at the end of Endangered and Threatened Species application forms and the reporting the agreement period, participants may requirements: return the enrolled property to the AGENCY: Fish and Wildlife Service, baseline conditions that existed at the Applications Interior. beginning of the SHA. If an SHA is ACTION: Notice; request for comments. • FWS Form 3–200–54 (Enhancement feasible, the landowner and the Service of Survival Permits Associated with will: SUMMARY: We (U.S. Fish and Wildlife Safe Harbor Agreements and Candidate (1) Work together to compile Service) will ask the Office of Conservation Agreements with information about the land, including a Management and Budget (OMB) to Assurances). map, the current management, and the approve the information collection (IC) • FWS Form 3–200–55 (Scientific management needs of the species and/ described below. As required by the Purposes, Enhancement of Propagation or habitat. Paperwork Reduction Act of 1995 and or Survival Permits (i.e., Recovery (2) Determine the baseline condition as part of our continuing efforts to Permits), and Interstate Commerce of the property for the species—the reduce paperwork and respondent Permits). number and location of individuals, a burden, we invite the general public and • FWS Form 3–200–56 (Incidental habitat assessment, or a combination of other Federal agencies to take this Take Permits Associated with a Habitat the two. opportunity to comment on this IC. This Conservation Plan). (3) Identify voluntary actions that IC is scheduled to expire on January 31, would provide a net conservation Agreement Plans 2017. We may not conduct or sponsor benefit for the species. They also and a person is not required to respond We are seeking OMB approval for determine the duration of the SHA, to a collection of information unless it reporting associated with the following allowing enough time to achieve the displays a currently valid OMB control agreements/plans: desired benefit. • number. Habitat Conservation Plan (4) Develop a draft SHA that specifies (application form 3–200–56). A habitat DATES: To ensure that we are able to management actions that will provide a conservation plan (HCP) is a planning consider your comments on this IC, we net conservation benefit to the species. document that is required as part of an must receive them by December 2, 2016. The draft plan should describe the application for an incidental take current and anticipated management of ADDRESSES: Send your comments on the permit. It describes the anticipated the property (farming, ranching, timber IC to the Information Collection effects of the proposed taking, how Clearance Officer, U.S. Fish and management, etc.). It should also those impacts will be minimized or address the monitoring needed to Wildlife Service, MS BPHC, 5275 mitigated, and how the HCP is to be Leesburg Pike, Falls Church, VA 22041– determine if the prescribed management _ funded. Section 10 of the Endangered actually benefits the species and/or its 3803 (mail); or tina [email protected] Species Act (ESA) and its implementing (email). Please include ‘‘1018–0094’’ in habitat. regulations define the contents of HCPs. • Candidate Conservation Agreement the subject line of your comments. During development of an HCP, the with Assurances (application form 3– FOR FURTHER INFORMATION CONTACT: To Service may request that the applicant 200–54). A candidate conservation request additional information about provide information such as the agreement with assurances (CCAA) this IC, contact Tina Campbell at following: Contact information, project encourages conservation actions for _ tina [email protected] (email) or 703– description, site maps, GIS data, species that are candidates for listing as 358–2676 (telephone). You may review photographs, species and habitat survey threatened or endangered, or are likely the currently approved IC requirements results, training requirements, analysis to become candidates. The CCAA at www.reginfo.gov. of the potential project impacts to listed standard is to provide a net SUPPLEMENTARY INFORMATION: species, and annual reporting conservation benefit to the covered requirements outlined in the permit or I. Abstract species and the enrolled property. Non- HCP. Federal property owners receive We use the information we collect on • Safe Harbor Agreement (application assurances that if they fulfill the permit applications to determine the form 3–200–54). A safe harbor conditions of the CCAA, the Service eligibility of applicants for permits agreement (SHA) is a voluntary will not require any additional or requested in accordance with various agreement involving private or other different land management activities by Federal wildlife conservation laws, non-Federal property owners whose the participants without their consent. including: actions contribute to the recovery of • Endangered Species Act (16 U.S.C. species listed as threatened or Permit Conditions 1531 et seq.). endangered under the ESA. The When reviewing materials for the • Migratory Bird Treaty Act (16 agreement is between cooperating non- renewal of OMB Control No. 1018–0094, U.S.C. 703 et seq.). Federal property owners and the U.S. we discovered that some of our permit • Lacey Act (16 U.S.C. 3371 et seq.). Fish and Wildlife Service or the conditions contain information • Bald and Golden Eagle Protection National Oceanic and Atmospheric collection requirements that need OMB Act (16 U.S.C. 668). Administration, which is responsible for approval. We will request that OMB • Marine Mammal Protection Act (16 most listed marine and anadromous fish approve the following additional U.S.C. 1374). species. In exchange for actions that requirements such as:
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• Notification of injury or mortality. If including but not limited to reporting • Narrative responses: (1) Explaining an incidental injury or mortality occurs requirements as the Secretary deems reasons and objectives for taking the to a listed species not authorized under necessary for determining whether such species; (2) addressing data collection permits issued in accordance with terms and conditions are being methods and analysis procedures; (3) section 10 of the ESA, the permittee complied with.’’ In order to simplify summarizing results of the data must immediately cease authorized reporting and review of reporting, the collected; and (4) specifically providing, activities in the project area where the Service has developed new at a minimum, application of the results species/activities are occurring and standardized report forms. to the recovery of the species. notify the appropriate project leader. • For sea turtles, the quarterly reports • New Report Forms Field Data Forms. If applicable, are to inform the Service’s Sea Turtle permittees must provide the appropriate We are seeking OMB approval for Coordinator of the releasable status of reporting associated with the following project leader with copies of all field the sea turtle(s) currently undergoing report forms: data forms with positive or negative rehabilitation at that facility. The non- survey results, including, if applicable, Use of these new forms is not mandatory, but the same information release form is primarily to inform the copies of quadrangle maps and copies of Service’s Sea Turtle Coordinator of the any aerial photos used in surveying or must be submitted either electronically or by a paper copy. We will use the disposition (alive and healthy or dead reconnaissance. Photos and maps must and necropsied) of the non-releasable clearly delineate all areas covered information collected via reports to track activities conducted that affect sea turtle(s) being held at that facility. during each survey. • For bats, information collected also • Approval for Activities. Permittees endangered or threatened species. These includes habitat condition and may be required to request approval reports provide data to support recovery equipment used. from the appropriate Service Field and to help revise recovery priorities of listed species. Supervisor for the State in which an • II. Data activity is proposed prior to conducting FWS Form 3–202–5b (ESA any activities. The request must be in Recovery Permits: Region 3 Bat OMB Control Number: 1018–0094. writing and include full descriptions of Reporting Spreadsheet). Title: Federal Fish and Wildlife • FWS Form 3–202–55c (ESA proposed project, survey sites, purpose Permit Applications and Reports— Recovery Permits: Region 4 Bat and need of proposed project, and a Native Endangered and Threatened Reporting Spreadsheet). Species, 50 CFR 13 and 17. copy of any contract that the work will • FWS Form 3–202–55d (ESA Service Form Numbers: 3–200–54, 3– fulfill. When performing surveys, a copy Recovery Permits: Region 5 Bat of the concurrence letter must be carried Reporting Spreadsheet). 200–55, 3–200–56, 3–202–55b, 3–202– while conducting authorized activities. • FWS Form 3–202–55e (ESA 55c, 3–202–55d, 3–202–55e, 3–202–55f, The permit is not valid without Recovery Permits: Region 6 Bat and 3–202–55g. applicable concurrence letter(s) for Reporting Spreadsheet). Type of Request: Revision of a activities along with any required State • FWS Form 3–202–55f (Non- currently approved collection. permits. Releasable Sea Turtle Annual Report). • Affected Public: Individuals/ Report of Incidental Take. If actions • FWS Form 3–202–55g (Sea Turtle households, businesses, State and local result in incidental take of ESA-listed Rehabilitation Quarterly Report Form). agencies, private organizations, and species or other species (e.g., bald The Service may request that the scientific and research institutions. eagles, migratory birds) not covered by permittee provide information such as: Respondent’s Obligation: Required to the permit, the permittee must report • Permittee contact information. this take to the Service. • Species data (species; where and obtain or retain a benefit. As described in section 10 of the ESA, when activity occurred; critical habitat Estimated Number of Respondents: permits issued under this section ‘‘shall unit name, if applicable; life stage; sex; 2,913. contain such terms and conditions as age; activity; whether take is intentional Frequency of Collection: On occasion the Secretary [of the Department of the or incidental; project/report reference for application forms and notifications; Interior] deems necessary or appropriate number; and recovery action number). annually or quarterly for reports.
Completion Total annual time per Total annual Requirement responses response burden hours (hours)
SHA/CCAA
Application (3Ð200Ð54) ...... 37 3 111 Safe Harbor Agreement ...... 17 30 510 Candidate Conservation Agreement with Assurances ...... 20 30 600 Amendments ...... 2 2 4 Annual report ...... 64 8 512 Notifications (incidental take, change in landowner, and dead, sick, or injured member of cov- ered species) ...... 2 1 2
RECOVERY/INTERSTATE COMMERCE
Application (3–200–55) ...... 400 2 800 Amendments ...... 170 1 170 Request to Revise List of Authorized Individuals ...... 30 .5 15 Annual Report ...... 1,300 2 2,600 Annual Report—FWS Form 3–202–55b (Region 3 Bat Reporting Spreadsheet) ...... 100 2 200 Annual Report—FWS Form 3–202–55c (Region 4 Bat Reporting Spreadsheet) ...... 10 2 20
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Completion Total annual time per Total annual Requirement responses response burden hours (hours)
Annual Report—FWS Form 3–202–55d (Region 5 Bat Reporting Spreadsheet) ...... 10 2 20 Annual Report—FWS Form 3–202–55e (Region 6 Bat Reporting Spreadsheet) ...... 10 2 20 Annual Report—FWS Form 3–202–55f—Non-Releasable Sea Turtle Annual Report ...... 20 .5 10 Quarterly Report—FWS Form 3–202–55g—Sea Turtle Rehabilitation Quarterly Report Form 20 .5 10 Notifications (Escape of wildlife, injury or mortality of covered species) ...... 1 1 1
HCP
Application (3–200–56) ...... 50 8 400 Annual report ...... 600 10 6,000 Habitat Conservation Plan ...... 50 2,080 104,000
Total ...... 2913 ...... 116,005
Estimated Annual Nonhour Burden DEPARTMENT OF THE INTERIOR University, 11 Divinity Avenue, Cost: $45,250 for fees associated with Cambridge, MA 02138, telephone (617) permit applications and amendments. National Park Service 496–3702, email pcapone@ fas.harvard.edu. III. Comments [NPS–WASO–NAGPRA–22017; PPWOCRADN0–PCU00RP14.R50000] SUPPLEMENTARY INFORMATION: Notice is We invite comments concerning this here given in accordance with the information collection on: Notice of Inventory Completion: Native American Graves Protection and Peabody Museum of Archaeology and Repatriation Act (NAGPRA), 25 U.S.C. • Whether or not the collection of Ethnology, Harvard University, 3003, of the completion of an inventory information is necessary, including Cambridge, MA of human remains under the control of whether or not the information will AGENCY: National Park Service, Interior. the Peabody Museum of Archaeology have practical utility; and Ethnology, Harvard University, ACTION: Notice. • The accuracy of our estimate of the Cambridge, MA. The human remains burden for this collection of SUMMARY: The Peabody Museum of were removed from Washtenaw County, information; Archaeology and Ethnology has MI. This notice is published as part of the • Ways to enhance the quality, utility, completed an inventory of human National Park Service’s administrative and clarity of the information to be remains in consultation with the responsibilities under NAGPRA, 25 collected; and appropriate Indian tribes or Native U.S.C. 3003(d)(3) and 43 CFR 10.11(d). • Hawaiian organizations, and has Ways to minimize the burden of the determined that there is no cultural The determinations in this notice are collection of information on affiliation between the human remains the sole responsibility of the museum, respondents. and any present-day Indian tribes or institution, or Federal agency that has Comments that you submit in Native Hawaiian organizations. control of the Native American human response to this notice are a matter of Representatives of any Indian tribe or remains. The National Park Service is public record. We will include or Native Hawaiian organization not not responsible for the determinations summarize each comment in our request identified in this notice that wish to in this notice. to OMB to approve this IC. Before request transfer of control of these Consultation human remains should submit a written including your address, phone number, A detailed assessment of the human request to the Peabody Museum of email address, or other personal remains was made by the Peabody Archaeology and Ethnology. If no identifying information in your Museum of Archaeology and Ethnology additional requestors come forward, comment, you should be aware that professional staff in consultation with transfer of control of the human remains your entire comment, including your representatives of Bay Mills Indian to the Indian tribes or Native Hawaiian personal identifying information, may Community, Michigan; Grand Traverse organizations stated in this notice may be made publicly available at any time. Band of Ottawa and Chippewa Indians, proceed. While you can ask us in your comment Michigan; Hannahville Indian to withhold your personal identifying DATES: Representatives of any Indian Community, Michigan; Keweenaw Bay information from public review, we tribe or Native Hawaiian organization Indian Community, Michigan; Lac cannot guarantee that we will be able to not identified in this notice that wish to Vieux Desert Band of Lake Superior request transfer of control of these do so. Chippewa Indians of Michigan; Little human remains should submit a written River Band of Ottawa Indians, Tina A. Campbell, request with information in support of Michigan; Little Traverse Bay Bands of Chief, Division of Policy, Performance, and the request to the Peabody Museum of Odawa Indians, Michigan; Match-e-be- Management Programs, U.S. Fish and Wildlife Archaeology and Ethnology at the nash-she-wish Band of Pottawatomi Service. address in this notice by November 2, Indians of Michigan; Nottawaseppi [FR Doc. 2016–23769 Filed 9–30–16; 8:45 am] 2016. Huron Band of the Potawatomi, BILLING CODE 4333–15–P ADDRESSES: Patricia Capone, Museum Michigan (previously listed as the Curator and Director of Research and Huron Potawatomi, Inc.); Pokagon Band Repatriation, Peabody Museum of of Potawatomi Indians, Michigan and Archaeology and Ethnology, Harvard Indiana; Saginaw Chippewa Indian
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Tribe of Michigan; and Sault Ste. Marie to as ‘‘The Invited and Consulted Vieux Desert Band of Lake Superior Tribe of Chippewa Indians, Michigan. Tribes’’). Chippewa Indians of Michigan; Leech Additional requests for consultation Lake Band of the Minnesota Chippewa History and Description of the Remains were sent to the Absentee-Shawnee Tribe, Minnesota; Little River Band of Tribe of Indians of Oklahoma; Bad River In 1900, human remains representing, Ottawa Indians, Michigan; Little Band of the Lake Superior Tribe of at minimum, 1 individual were removed Traverse Bay Bands of Odawa Indians, Chippewa Indians of the Bad River from a mound three miles east of Ann Michigan; Match-e-be-nash-she-wish Reservation, Wisconsin; Bois Forte Band Arbor, on a bluff north of the Huron Band of Pottawatomi Indians of (Nett Lake) of the Minnesota Chippewa River in Washtenaw County, MI, by W. Michigan; Mille Lacs Band of the Tribe, Minnesota; Chippewa Cree B. Hinsdale. The Peabody Museum Minnesota Chippewa Tribe, Minnesota; Indians of the Rocky Boy’s Reservation, likely purchased these human remains Nottawaseppi Huron Band of the Montana (previously listed as the in 1908, presumably from Hinsdale. No Potawatomi, Michigan (previously listed Chippewa-Cree Indians of the Rocky known individuals were identified. as the Huron Potawatomi, Inc.); Ottawa Boy’s Reservation, Montana); Citizen Determinations Made by the Peabody Tribe of Oklahoma; Pokagon Band of Potawatomi Nation, Oklahoma; Museum of Archaeology and Ethnology Potawatomi Indians, Michigan and Delaware Nation, Oklahoma; Delaware Indiana; Prairie Band of Potawatomi Tribe of Indians; Fond du Lac Band of Officials of the Peabody Museum of Nation, Kansas; Red Cliff Band of Lake the Minnesota Chippewa Tribe, Archaeology and Ethnology have Superior Chippewa Indians of Minnesota; Forest County Potawatomi determined that: Wisconsin; Red Lake Band of Chippewa Community, Wisconsin; Grand Portage • Pursuant to 25 U.S.C. 3001(9), the Indians, Minnesota; Saginaw Chippewa Band of the Minnesota Chippewa Tribe, human remains described in this notice Indian Tribe of Michigan; Sault Ste. Minnesota; Ho-Chunk Nation of are Native American based on Marie Tribe of Chippewa Indians, Wisconsin; Kickapoo Traditional Tribe archeological contexts, museum records, Michigan; Sokaogon Chippewa of Texas; Kickapoo Tribe of Indians of and osteological evidence. Community, Wisconsin; St. Croix the Kickapoo Reservation in Kansas; • Pursuant to 25 U.S.C. 3001(9), the Chippewa Indians of Wisconsin; Turtle Kickapoo Tribe of Oklahoma; Lac human remains described in this notice Mountain Band of Chippewa Indians of Courte Oreilles Band of Lake Superior represent the physical remains of one North Dakota; White Earth Band of Chippewa Indians of Wisconsin; Lac du individual of Native American ancestry. Minnesota Chippewa Tribe, Minnesota; Flambeau Band of Lake Superior • Pursuant to 25 U.S.C. 3001(2), a Wyandotte Nation, Oklahoma Chippewa Indians of the Lac du relationship of shared group identity (hereinafter referred to as ‘‘The Flambeau Reservation of Wisconsin; cannot be reasonably traced between the Aboriginal Land Tribes’’). Leech Lake Band of the Minnesota Native American human remains and • Pursuant to 43 CFR 10.11(c)(1), the Chippewa Tribe, Minnesota; any present-day Indian tribe. disposition of the human remains may Menominee Indian Tribe of Wisconsin; • According to final judgments of the be to The Aboriginal Land Tribes. Miami Tribe of Oklahoma; Mille Lacs Indian Claims Commission or the Court Band of the Minnesota Chippewa Tribe, of Federal Claims, Treaties, Acts of Additional Requestors and Disposition Minnesota; Oneida Nation (previously Congress, or Executive Orders, the land Representatives of any Indian tribe or listed as the Oneida Tribe of Indians of from which the Native American human Native Hawaiian organization not Wisconsin); Ottawa Tribe of Oklahoma; remains were removed is the aboriginal identified in this notice that wish to Peoria Tribe of Indians of Oklahoma; land of the Bad River Band of the Lake request transfer of control of these Prairie Band Potawatomi Nation Superior Tribe of Chippewa Indians of human remains should submit a written (previously listed as the Prairie Band of the Bad River Reservation, Wisconsin; request with information in support of Potawatomi Nation, Kansas); Red Cliff Bay Mills Indian Community, Michigan; the request to Patricia Capone, Museum Band of Lake Superior Chippewa Bois Forte Band (Nett Lake) of the Curator and Director of Research and Indians of Wisconsin; Red Lake Band of Minnesota Chippewa Tribe, Minnesota; Repatriation, Peabody Museum of Chippewa Indians, Minnesota; Sac & Chippewa Cree Indians of the Rocky Archaeology and Ethnology, Harvard Fox Nation of Missouri in Kansas and Boy’s Reservation, Montana (previously University, 11 Divinity Avenue, Nebraska; Sac & Fox Nation, Oklahoma; listed as the Chippewa-Cree Indians of Cambridge, MA 02138, telephone (617) Sac & Fox Tribe of the Mississippi in the Rocky Boy’s Reservation, Montana); 496–3702, email pcapone@ Iowa; Seneca Nation of Indians Citizen Potawatomi Nation, Oklahoma; fas.harvard.edu by November 2, 2016. (previously listed as the Seneca Nation Fond du Lac Band of the Minnesota After that date, if no additional of Indians, New York); Seneca-Cayuga Chippewa Tribe, Minnesota; Forest requestors have come forward, transfer Nation (previously listed as the Seneca- County Potawatomi Community, of control of the human remains to The Cayuga Tribe of Oklahoma); Shawnee Wisconsin; Grand Portage Band of the Aboriginal Land Tribes may proceed. Tribe; Sokaogon Chippewa Community, Minnesota Chippewa Tribe, Minnesota; The Peabody Museum of Archaeology Wisconsin; St. Croix Chippewa Indians Grand Traverse Band of Ottawa and and Ethnology is responsible for of Wisconsin; Stockbridge Munsee Chippewa Indians, Michigan; notifying The Invited and Consulted Community, Wisconsin; Tonawanda Hannahville Indian Community, Tribes that this notice has been Band of Seneca (previously listed as the Michigan; Keweenaw Bay Indian published. Tonawanda Band of Seneca of New Community, Michigan; Lac Courte York); Turtle Mountain Band of Oreilles Band of Lake Superior Dated: September 19, 2016. Chippewa Indians of North Dakota; Chippewa Indians of Wisconsin; Lac du Melanie O’Brien, White Earth Band of Minnesota Flambeau Band of Lake Superior Manager, National NAGPRA Program. Chippewa Tribe, Minnesota; and the Chippewa Indians of the Lac du [FR Doc. 2016–23812 Filed 9–30–16; 8:45 am] Wyandotte Nation (hereinafter referred Flambeau Reservation of Wisconsin; Lac BILLING CODE 4312–52–P
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DEPARTMENT OF THE INTERIOR this notice are the sole responsibility of In 1947, human remains representing, the museum, institution, or Federal at minimum, two individuals were National Park Service agency that has control of the Native removed from Mimbres River in an [NPS–WASO–NAGPRA– American human remains and unknown county, NM. The human 21946;PPWOCRADN0–PCU00RP14.R50000] associated funerary objects. The remains were gifted to Indiana National Park Service is not responsible University by CP Hogeboom as part of Notice of Inventory Completion: for the determinations in this notice. a larger donated collection. Notes infer Indiana University, Bloomington, IN Consultation that the human remains are from a location within the Mimbres Valley in AGENCY: National Park Service, Interior. A detailed assessment of the human southwestern New Mexico. Within the ACTION: Notice. remains was made by Indiana Mimbres Valley, the primary cultural University professional staff in group was the Mogollon, which SUMMARY: The Department of consultation with representatives of the emerged from a Desert Archaic Anthropology at Indiana University has Hopi Tribe of Arizona; Pueblo of tradition. Contemporary Puebloan completed an inventory of human Acoma, New Mexico; Pueblo of Jemez, groups claim affiliation with the remains and associated funerary objects, New Mexico; Pueblo of Picuris, New Mogollon culture, which is in consultation with the appropriate Mexico; Pueblo of Pojoaque, New characterized by the use of sophisticated Indian tribes or Native Hawaiian Mexico; Pueblo of San Felipe, New pottery types, the use of kivas for organizations, and has determined that Mexico; Pueblo of San Ildefonso, New religious and social purposes, and the there is a cultural affiliation between the Mexico; Pueblo of Santa Ana, New construction of cliff dwellings. No human remains and associated funerary Mexico; Pueblo of Santa Clara, New known individuals were identified. objects and present-day Indian tribes or Mexico; Pueblo of Tesuque, New There are no associated funerary objects. Native Hawaiian organizations. Lineal Mexico; Ysleta del Sur Pueblo On an unknown date, human remains descendants or representatives of any (previously listed as the Ysleta del Sur representing, at minimum, two Indian tribe or Native Hawaiian Pueblo of Texas); and Zuni Tribe of the individuals were removed from the New organization not identified in this notice Zuni Reservation, New Mexico. The Mexico Pueblo site in an unknown that wish to request transfer of control following tribes were contacted but did county, NM. The human remains were of these human remains and associated not participate in consultations: Kewa part of a collection donated to the funerary objects should submit a written Pueblo, New Mexico (previously listed request to the Indiana University as the Pueblo of Santo Domingo); Navajo Department of Anthropology at Indiana NAGPRA Office. If no additional Nation, Arizona, New Mexico, & Utah; University on an unknown date by Mrs. requestors come forward, transfer of Ohkay Owingeh, New Mexico George Ball of Cleveland, Ohio. No control of the human remains and (previously listed as the Pueblo of San known individuals were identified. associated funerary objects to the lineal Juan); Pueblo of Cochiti, New Mexico; There are no associated funerary objects. descendants, Indian tribes, or Native Pueblo of Isleta, New Mexico; Pueblo of Evidence demonstrating cultural Hawaiian organizations stated in this Laguna, New Mexico; Pueblo of Nambe, continuity between Ancestral Puebloan notice may proceed. New Mexico; Pueblo of Sandia, New and modern day Puebloan tribes includes geographical, archaeological, DATES: Lineal descendants or Mexico; Pueblo of Taos, New Mexico; historical, architectural, and oral representatives of any Indian tribe or and Pueblo of Zia, New Mexico. traditions. These descendants are Native Hawaiian organization not History and Description of the Remains members of the present day tribes of the identified in this notice that wish to Hopi Tribe of Arizona ; Kewa Pueblo, request transfer of control of these In 1963, human remains representing, New Mexico (previously listed as the human remains and associated funerary at minimum, two individuals were Pueblo of Santo Domingo); Ohkay objects should submit a written request removed from Cottonwood Gulch in Owingeh, New Mexico (previously with information in support of the McKinley County, NM. The human remains were uncovered between the listed as the Pueblo of San Juan); Pueblo request to the Indiana University towns of Thoreau and Gallup during the of Acoma, New Mexico; Pueblo of NAGPRA Office at the address in this 1963 Prairie Trek sponsored by the Cochiti, New Mexico; Pueblo of Isleta, notice by November 2, 2016. Indianapolis Children’s Museum. The New Mexico; Pueblo of Jemez, New ADDRESSES: Dr. Jayne-Leigh Thomas, human remains were transferred to Mexico; Pueblo of Laguna, New Mexico; NAGPRA Director, Indiana University, Indiana University in 1985. No known Pueblo of Nambe, New Mexico; Pueblo NAGPRA Office, Student Building 318, individuals were identified. The 23 of Picuris, New Mexico; Pueblo of 701 East Kirkwood Avenue, associated funerary objects are 20 Pojoaque, New Mexico; Pueblo of Bloomington, IN 47405, telephone (812) pottery sherds and 3 dog bones. Notes Sandia, New Mexico; Pueblo of San 856–5315, email thomajay@ indicate that Cottonwood Gulch is Felipe, New Mexico; Pueblo of San indiana.edu. affiliated with Puebloan culture and that Ildefonso, New Mexico; Pueblo of Santa SUPPLEMENTARY INFORMATION: Notice is it is assigned to the Anasazi III cultural Ana, New Mexico; Pueblo of Santa here given in accordance with the phase. The more recently utilized term Clara, New Mexico; Pueblo of Taos, Native American Graves Protection and for Anasazi is Ancestral Puebloan. New Mexico; Pueblo of Tesuque, New Repatriation Act (NAGPRA), 25 U.S.C. Ancestral Puebloan culture spread from Mexico; Pueblo of Zia, New Mexico; 3003, of the completion of an inventory the Four Corners region to areas of Ysleta del Sur Pueblo (previously listed of human remains and associated northwestern New Mexico, northern as the Ysleta del Sur Pueblo of Texas); funerary objects under the control of the Arizona, southwestern Colorado and and Zuni Tribe of the Zuni Reservation, Department of Anthropology at Indiana southeastern Utah. Major Puebloan New Mexico. University, Bloomington, Indiana. cultural periods are marked by Determinations Made by the {Museum This notice is published as part of the territorial expansions and the or Federal Agency} National Park Service’s administrative development of multi-room structures responsibilities under NAGPRA, 25 along the edges of canyons or on mesa Officials of Indiana University have U.S.C. 3003(d)(3). The determinations in tops. determined that:
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• Pursuant to 25 U.S.C. 3001(9), the Mexico; Pueblo of Pojoaque, New submit a written request to the Phoebe human remains described in this notice Mexico; Pueblo of Sandia, New Mexico; A. Hearst Museum of Anthropology. If represent the physical remains of six Pueblo of San Felipe, New Mexico; no additional claimants come forward, individuals of Native American Pueblo of San Ildefonso, New Mexico; transfer of control of the cultural items ancestry. Pueblo of Santa Ana, New Mexico; to the lineal descendants, Indian tribes, • Pursuant to 25 U.S.C. 3001(3)(A), Pueblo of Santa Clara, New Mexico; or Native Hawaiian organizations stated the 23 objects described in this notice Pueblo of Taos, New Mexico; Pueblo of in this notice may proceed. are reasonably believed to have been Tesuque, New Mexico; Pueblo of Zia, DATES: Lineal descendants or placed with or near individual human New Mexico; Ysleta del Sur Pueblo representatives of any Indian tribe or remains at the time of death or later as (previously listed as the Ysleta del Sur Native Hawaiian organization not part of the death rite or ceremony. Pueblo of Texas); and Zuni Tribe of the • Pursuant to 25 U.S.C. 3001(2), there identified in this notice that wish to Zuni Reservation, New Mexico. claim these cultural items should is a relationship of shared group Indiana University is responsible for submit a written request with identity that can be reasonably traced notifying the Hopi Tribe of Arizona; information in support of the claim to between the Native American human Kewa Pueblo, New Mexico (previously the Phoebe A. Hearst Museum of remains and associated funerary objects listed as the Pueblo of Santo Domingo); and Hopi Tribe of Arizona; Kewa Navajo Nation, Arizona, New Mexico, & Anthropology at the address in this Pueblo, New Mexico (previously listed Utah; Ohkay Owingeh, New Mexico notice by November 2, 2016. as the Pueblo of Santo Domingo); Ohkay (previously listed as the Pueblo of San ADDRESSES: Jordan Jacobs, Phoebe A. Owingeh, New Mexico (previously Juan); Pueblo of Acoma, New Mexico; Hearst Museum of Anthropology, 103 listed as the Pueblo of San Juan); Pueblo Pueblo of Cochiti, New Mexico; Pueblo Kroeber Hall, University of California, of Acoma, New Mexico; Pueblo of of Isleta, New Mexico; Pueblo of Jemez, Berkeley, Berkeley, CA 94720–3712, Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Laguna, New telephone (510) 643–8230, email New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Nambe, New Mexico; [email protected]. Mexico; Pueblo of Laguna, New Mexico; Pueblo of Picuris, New Mexico; Pueblo SUPPLEMENTARY INFORMATION: Notice is Pueblo of Nambe, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of here given in accordance with the of Picuris, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of San Native American Graves Protection and Pojoaque, New Mexico; Pueblo of Felipe, New Mexico; Pueblo of San Repatriation Act (NAGPRA), 25 U.S.C. Sandia, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Santa 3005, of the intent to repatriate cultural Felipe, New Mexico; Pueblo of San Ana, New Mexico; Pueblo of Santa items under the control of the Phoebe A. Ildefonso, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, Hearst Museum of Anthropology, Ana, New Mexico; Pueblo of Santa New Mexico; Pueblo of Tesuque, New University of California, Berkeley, Clara, New Mexico; Pueblo of Taos, Mexico; Pueblo of Zia, New Mexico; Berkeley, CA, that meet the definition of New Mexico; Pueblo of Tesuque, New Ysleta del Sur Pueblo (previously listed cultural item under 25 U.S.C. 3001. Mexico; Pueblo of Zia, New Mexico; as the Ysleta del Sur Pueblo of Texas); This notice is published as part of the Ysleta del Sur Pueblo (previously listed and Zuni Tribe of the Zuni Reservation, National Park Service’s administrative as the Ysleta del Sur Pueblo of Texas); New Mexico. responsibilities under NAGPRA, 25 and Zuni Tribe of the Zuni Reservation, Dated: September 13, 2016. New Mexico. U.S.C. 3003(d)(3). The determinations in Melanie O’Brien, this notice are the sole responsibility of Additional Requestors and Disposition Manager, National NAGPRA Program. the museum, institution, or Federal Lineal descendants or representatives [FR Doc. 2016–23804 Filed 9–30–16; 8:45 am] agency that has control of the Native of any Indian tribe or Native Hawaiian BILLING CODE 4312–52–P American cultural items. The National organization not identified in this notice Park Service is not responsible for the that wish to request transfer of control determinations in this notice. DEPARTMENT OF THE INTERIOR of these human remains and associated History and Description of the Cultural funerary objects should submit a written National Park Service Items request with information in support of the request to Dr. Jayne-Leigh Thomas, [NPS–WASO–NAGPRA–21980; In 1913, three cultural items were NAGPRA Director, Indiana University, PPWOCRADN0–PCU00RP14.R50000] removed from a location near Korbel, NAGPRA Office, Student Building 318, Humboldt County, CA. The 3 cultural 701 East Kirkwood Avenue, Notice of Intent To Repatriate Cultural items are 2 sharpened hazel wood sticks Bloomington, IN 47405, telephone (812) Items: Phoebe A. Hearst Museum of (31 and 20 centimeters in length 856–5315, email thomajay@ Anthropology, University of California, respectively) and 1 sharpened, forked indiana.edu, by November 2, 2016. Berkeley, Berkeley, CA sprig of redwood (29 centimeters in After that date, if no additional AGENCY: National Park Service, Interior. length). These cultural items were removed from a redwood tree by L.L. requestors have come forward, transfer ACTION: Notice. of control of the human remains and Loud while conducting ethnological associated funerary objects to Hopi SUMMARY: The University of California, research for the University of California. Tribe of Arizona; Kewa Pueblo, New in consultation with the appropriate Evidence presented by the consulting Mexico (previously listed as the Pueblo Indian tribes or Native Hawaiian Indian tribes and ethnographic sources of Santo Domingo); Ohkay Owingeh, organizations, has determined that the support the use of the tree and the New Mexico (previously listed as the cultural items listed in this notice meet cultural items to mark the boundary Pueblo of San Juan); Pueblo of Acoma, the definition of cultural item under 25 between Wiyot and Chilula territories. New Mexico; Pueblo of Cochiti, New U.S.C. 3001. Lineal descendants or The cultural affiliation of the three Mexico; Pueblo of Isleta, New Mexico; representatives of any Indian tribe or cultural items is to the Wiyot, Whilkut, Pueblo of Jemez, New Mexico; Pueblo of Native Hawaiian organization not and Chilula as indicated by museum Laguna, New Mexico; Pueblo of Nambe, identified in this notice that wish to records, ethnographic sources, and New Mexico; Pueblo of Picuris, New claim these cultural items should consultation with tribal representatives.
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Determinations Made by the University DEPARTMENT OF THE INTERIOR U.S.C. 3003(d)(3) and 43 CFR 10.11(d). of California The determinations in this notice are National Park Service the sole responsibility of the museum, Officials of the University of [NPS–WASO–NAGPRA–22016; institution, or Federal agency that has California have determined that: PPWOCRADN0–PCU00RP14.R50000] control of the Native American human • Pursuant to 25 U.S.C. 3001, the 3 remains. The National Park Service is cultural items described above meet the Notice of Inventory Completion: not responsible for the determinations definition of cultural item and are Peabody Museum of Archaeology and in this notice. subject to repatriation under NAGPRA. Ethnology, Harvard University, Consultation Cambridge, MA • Pursuant to 25 U.S.C. 3001(2), there A detailed assessment of the human is a relationship of shared group AGENCY: National Park Service, Interior. remains was made by the Peabody identity that can be reasonably traced ACTION: Notice. Museum of Archaeology and Ethnology between the 3 cultural items and the professional staff in consultation with Bear River Band of the Rohnerville SUMMARY: The Peabody Museum of representatives of Bay Mills Indian Rancheria, California; Blue Lake Archaeology and Ethnology has Community, Michigan; Grand Traverse Rancheria, California; Cher-Ae Heights completed an inventory of human Band of Ottawa and Chippewa Indians, Indian Community of the Trinidad remains in consultation with the Michigan; Hannahville Indian appropriate Indian tribes or Native Rancheria, California; Hoopa Valley Community, Michigan; Keweenaw Bay Hawaiian organizations, and has Tribe, California; and Wiyot Tribe, Indian Community, Michigan; Lac determined that there is no cultural Vieux Desert Band of Lake Superior California (previously listed as the Table affiliation between the human remains Bluff Reservation-Wiyot Tribe). Chippewa Indians of Michigan; Little and any present-day Indian tribes or River Band of Ottawa Indians, Additional Requestors and Disposition Native Hawaiian organizations. Michigan; Little Traverse Bay Bands of Representatives of any Indian tribe or Odawa Indians, Michigan; Match-e-be- Lineal descendants or representatives Native Hawaiian organization not nash-she-wish Band of Pottawatomi of any Indian tribe or Native Hawaiian identified in this notice that wish to Indians of Michigan; Nottawaseppi organization not identified in this notice request transfer of control of these Huron Band of the Potawatomi, that wish to claim these cultural items human remains should submit a written Michigan (previously listed as the should submit a written request with request to the Peabody Museum of Huron Potawatomi, Inc.); Pokagon Band information in support of the claim to Archaeology and Ethnology. If no of Potawatomi Indians, Michigan and Jordan Jacobs, Phoebe A. Hearst additional requestors come forward, Indiana; Saginaw Chippewa Indian Museum of Anthropology, 103 Kroeber transfer of control of the human remains Tribe of Michigan; and Sault Ste. Marie Hall, University of California, Berkeley, to the Indian tribes or Native Hawaiian Tribe of Chippewa Indians, Michigan. Berkeley, CA 94720–3712, telephone organizations stated in this notice may Additional requests for consultation (510) 643–8230, email PAHMA- proceed. were sent to the Absentee-Shawnee [email protected] by DATES: Representatives of any Indian Tribe of Indians of Oklahoma; Bad River November 2, 2016. After that date, if no tribe or Native Hawaiian organization Band of the Lake Superior Tribe of additional claimants have come not identified in this notice that wish to Chippewa Indians of the Bad River forward, transfer of control of the request transfer of control of these Reservation, Wisconsin; Bois Forte Band (Nett Lake) of the Minnesota Chippewa cultural items to the Bear River Band of human remains should submit a written Tribe, Minnesota; Chippewa Cree the Rohnerville Rancheria, California; request with information in support of Indians of the Rocky Boy’s Reservation, Blue Lake Rancheria, California; Cher- the request to the Peabody Museum of Archaeology and Ethnology at the Montana (previously listed as the Ae Heights Indian Community of the address in this notice by November 2, Chippewa-Cree Indians of the Rocky Trinidad Rancheria, California; Hoopa 2016. Boy’s Reservation, Montana); Citizen Valley Tribe, California; and Wiyot Potawatomi Nation, Oklahoma; ADDRESSES: Patricia Capone, Museum Tribe, California (previously listed as Delaware Nation, Oklahoma; Delaware the Table Bluff Reservation-Wiyot Curator and Director of Research and Tribe of Indians; Fond du Lac Band of Tribe), may proceed. Repatriation, Peabody Museum of the Minnesota Chippewa Tribe, Archaeology and Ethnology, Harvard The Phoebe A. Hearst Museum of Minnesota; Forest County Potawatomi University, 11 Divinity Avenue, Community, Wisconsin; Grand Portage Anthropology is responsible for Cambridge, MA 02138, telephone (617) notifying the Bear River Band of the Band of the Minnesota Chippewa Tribe, 496–3702, email pcapone@ Minnesota; Ho-Chunk Nation of Rohnerville Rancheria, California; Blue fas.harvard.edu. Lake Rancheria, California; Cher-Ae Wisconsin; Kickapoo Traditional Tribe SUPPLEMENTARY INFORMATION: Notice is of Texas; Kickapoo Tribe of Indians of Heights Indian Community of the here given in accordance with the the Kickapoo Reservation in Kansas; Trinidad Rancheria, California; Hoopa Native American Graves Protection and Kickapoo Tribe of Oklahoma; Lac Valley Tribe, California; and Wiyot Repatriation Act (NAGPRA), 25 U.S.C. Courte Oreilles Band of Lake Superior Tribe, California (previously listed as 3003, of the completion of an inventory Chippewa Indians of Wisconsin; Lac du the Table Bluff Reservation-Wiyot of human remains under the control of Flambeau Band of Lake Superior Tribe), that this notice has been the Peabody Museum of Archaeology Chippewa Indians of the Lac du published. and Ethnology, Harvard University, Flambeau Reservation of Wisconsin; Dated: September 14, 2016. Cambridge, MA. The human remains Leech Lake Band of the Minnesota Melanie O’Brien, were removed from an unknown Chippewa Tribe, Minnesota; location in Michigan. Menominee Indian Tribe of Wisconsin; Manager, National NAGPRA Program. This notice is published as part of the Miami Tribe of Oklahoma; Mille Lacs [FR Doc. 2016–23805 Filed 9–30–16; 8:45 am] National Park Service’s administrative Band of the Minnesota Chippewa Tribe, BILLING CODE 4312–52–P responsibilities under NAGPRA, 25 Minnesota; Oneida Nation (previously
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listed as the Oneida Tribe of Indians of Additional Requestors and Disposition DATES: Representatives of any Indian Wisconsin); Ottawa Tribe of Oklahoma; Representatives of any Indian tribe or tribe or Native Hawaiian organization Peoria Tribe of Indians of Oklahoma; Native Hawaiian organization not not identified in this notice that wish to Prairie Band Potawatomi Nation identified in this notice that wish to request transfer of control of these (previously listed as the Prairie Band of request transfer of control of these human remains should submit a written Potawatomi Nation, Kansas); Red Cliff human remains should submit a written request with information in support of Band of Lake Superior Chippewa request with information in support of the request to the Peabody Museum of Indians of Wisconsin; Red Lake Band of the request to Patricia Capone, Museum Archaeology and Ethnology at the Chippewa Indians, Minnesota; Sac & Curator and Director of Research and address in this notice by November 2, Fox Nation of Missouri in Kansas and Repatriation, Peabody Museum of 2016. Nebraska; Sac & Fox Nation, Oklahoma; Archaeology and Ethnology, Harvard ADDRESSES: Patricia Capone, Museum Sac & Fox Tribe of the Mississippi in University, 11 Divinity Avenue, Curator and Director of Research and Iowa; Seneca Nation of Indians Cambridge, MA 02138, telephone (617) Repatriation, Peabody Museum of (previously listed as the Seneca Nation 496–3702, email pcapone@ Archaeology and Ethnology, Harvard of Indians, New York); Seneca-Cayuga fas.harvard.edu by November 2, 2016. University, 11 Divinity Avenue, Nation (previously listed as the Seneca- After that date, if no additional Cambridge, MA 02138, telephone (617) Cayuga Tribe of Oklahoma); Shawnee requestors have come forward, transfer 496–3702, email pcapone@ Tribe; Sokaogon Chippewa Community, of control of the human remains to The fas.harvard.edu. Wisconsin; St. Croix Chippewa Indians Invited and Consulted Tribes may SUPPLEMENTARY INFORMATION: Notice is of Wisconsin; Stockbridge Munsee proceed. here given in accordance with the Community, Wisconsin; Tonawanda The Peabody Museum of Archaeology Native American Graves Protection and Band of Seneca (previously listed as the and Ethnology is responsible for Repatriation Act (NAGPRA), 25 U.S.C. Tonawanda Band of Seneca of New notifying The Invited and Consulted 3003, of the completion of an inventory York); Turtle Mountain Band of Tribes that this notice has been of human remains under the control of Chippewa Indians of North Dakota; published. the Peabody Museum of Archaeology White Earth Band of Minnesota and Ethnology, Harvard University, Chippewa Tribe, Minnesota; and the Dated: September 19, 2016. Cambridge, MA. The human remains Wyandotte Nation (hereinafter referred Melanie O’Brien, Manager, National NAGPRA Program. were removed from Alpena County, MI. to as ‘‘The Invited and Consulted This notice is published as part of the Tribes’’). [FR Doc. 2016–23811 Filed 9–30–16; 8:45 am] National Park Service’s administrative History and Description of the Remains BILLING CODE 4312–52–P responsibilities under NAGPRA, 25 At an unknown time, human remains U.S.C. 3003(d)(3) and 43 CFR 10.11(d). representing, at minimum, 1 individual DEPARTMENT OF THE INTERIOR The determinations in this notice are were removed an unknown location in the sole responsibility of the museum, Michigan. The circumstances of National Park Service institution, or Federal agency that has control of the Native American human acquisition are unknown. No known [NPS–WASO–NAGPRA–21981: individuals were identified. remains. The National Park Service is PPWOCRADN0–PCU00RP14.R50000] not responsible for the determinations Determinations Made by the Peabody Notice of Inventory Completion: in this notice. Museum of Archaeology and Ethnology Peabody Museum of Archaeology and Consultation Officials of the Peabody Museum of Ethnology, Harvard University, A detailed assessment of the human Archaeology and Ethnology have Cambridge, MA determined that: remains was made by the Peabody • Pursuant to 25 U.S.C. 3001(9), the AGENCY: National Park Service, Interior. Museum of Archaeology and Ethnology human remains described in this notice ACTION: Notice. professional staff in consultation with are Native American based on museum representatives of Bay Mills Indian context. SUMMARY: The Peabody Museum of Community, Michigan; Grand Traverse • Pursuant to 25 U.S.C. 3001(9), the Archaeology and Ethnology has Band of Ottawa and Chippewa Indians, human remains described in this notice completed an inventory of human Michigan; Hannahville Indian represent the physical remains of one remains in consultation with the Community, Michigan; Keweenaw Bay individuals of Native American appropriate Indian tribes or Native Indian Community, Michigan; Lac ancestry. Hawaiian organizations, and has Vieux Desert Band of Lake Superior • Pursuant to 25 U.S.C. 3001(2), a determined that there is no cultural Chippewa Indians of Michigan; Little relationship of shared group identity affiliation between the human remains River Band of Ottawa Indians, cannot be reasonably traced between the and any present-day Indian tribes or Michigan; Little Traverse Bay Bands of Native American human remains and Native Hawaiian organizations. Odawa Indians, Michigan; Match-e-be- any present-day Indian tribe. Representatives of any Indian tribe or nash-she-wish Band of Pottawatomi • According to final judgments of the Native Hawaiian organization not Indians of Michigan; Nottawaseppi Indian Claims Commission or the Court identified in this notice that wish to Huron Band of the Potawatomi, of Federal Claims, Treaties, Acts of request transfer of control of these Michigan (previously listed as the Congress, or Executive Orders, the land human remains should submit a written Huron Potawatomi, Inc.); Pokagon Band from which the Native American human request to the Peabody Museum of of Potawatomi Indians, Michigan and remains were removed is the aboriginal Archaeology and Ethnology. If no Indiana; Saginaw Chippewa Indian land of The Invited and Consulted additional requestors come forward, Tribe of Michigan; and Sault Ste. Marie Tribes. transfer of control of the human remains Tribe of Chippewa Indians, Michigan. • Pursuant to 43 CFR 10.11(c)(1), the to the Indian tribes or Native Hawaiian Additional requests for consultation disposition of the human remains may organizations stated in this notice may were sent to the Absentee-Shawnee be to The Invited and Consulted Tribes. proceed. Tribe of Indians of Oklahoma; Bad River
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Band of the Lake Superior Tribe of They were donated by Stephen Mountain Band of Chippewa Indians of Chippewa Indians of the Bad River Salisbury in the same year. No known North Dakota; White Earth Band of Reservation, Wisconsin; Bois Forte Band individuals were identified. Minnesota Chippewa Tribe, Minnesota (Nett Lake) of the Minnesota Chippewa (hereinafter referred to as ‘‘The Determinations Made by the Peabody Tribe, Minnesota; Chippewa Cree Aboriginal Land Tribes’’). Museum of Archaeology and Ethnology Indians of the Rocky Boy’s Reservation, • Pursuant to 43 CFR 10.11(c)(1), the Montana (previously listed as the Officials of the Peabody Museum of disposition of the human remains may Chippewa-Cree Indians of the Rocky Archaeology and Ethnology have be to The Aboriginal Land Tribes. Boy’s Reservation, Montana); Citizen determined that: • Additional Requestors and Disposition Potawatomi Nation, Oklahoma; Pursuant to 25 U.S.C. 3001(9), the Delaware Nation, Oklahoma; Delaware human remains described in this notice Representatives of any Indian tribe or Tribe of Indians; Fond du Lac Band of are Native American based on Native Hawaiian organization not the Minnesota Chippewa Tribe, osteological examination, museum identified in this notice that wish to Minnesota; Forest County Potawatomi records, and/or archeological context. request transfer of control of these • Community, Wisconsin; Grand Portage Pursuant to 25 U.S.C. 3001(9), the human remains should submit a written Band of the Minnesota Chippewa Tribe, human remains described in this notice request with information in support of Minnesota; Ho-Chunk Nation of represent the physical remains of 32 the request to Patricia Capone, Museum Wisconsin; Kickapoo Traditional Tribe individuals of Native American Curator and Director of Research and ancestry. Repatriation, Peabody Museum of of Texas; Kickapoo Tribe of Indians of • the Kickapoo Reservation in Kansas; Pursuant to 25 U.S.C. 3001(2), a Archaeology and Ethnology, Harvard Kickapoo Tribe of Oklahoma; Lac relationship of shared group identity University, 11 Divinity Avenue, Courte Oreilles Band of Lake Superior cannot be reasonably traced between the Cambridge, MA 02138, telephone (617) Chippewa Indians of Wisconsin; Lac du Native American human remains and 496–3702, email pcapone@ Flambeau Band of Lake Superior any present-day Indian tribe. fas.harvard.edu by November 2, 2016. • According to final judgments of the Chippewa Indians of the Lac du After that date, if no additional Indian Claims Commission or the Court Flambeau Reservation of Wisconsin; requestors have come forward, transfer of Federal Claims, Treaties, Acts of Leech Lake Band of the Minnesota of control of the human remains to The Congress, or Executive Orders, the land Chippewa Tribe, Minnesota; Aboriginal Land Tribes may proceed. from which the Native American human Menominee Indian Tribe of Wisconsin; The Peabody Museum of Archaeology remains were removed is the aboriginal Miami Tribe of Oklahoma; Mille Lacs and Ethnology is responsible for land of the Bad River Band of the Lake Band of the Minnesota Chippewa Tribe, notifying The Invited and Consulted Superior Tribe of Chippewa Indians of Minnesota; Oneida Nation (previously Tribes that this notice has been the Bad River Reservation, Wisconsin; listed as the Oneida Tribe of Indians of published. Bay Mills Indian Community, Michigan; Wisconsin); Ottawa Tribe of Oklahoma; Bois Forte Band (Nett Lake) of the Dated: September 19, 2016. Peoria Tribe of Indians of Oklahoma; Minnesota Chippewa Tribe, Minnesota; Melanie O’Brien, Prairie Band Potawatomi Nation Manager, National NAGPRA Program. (previously listed as the Prairie Band of Chippewa Cree Indians of the Rocky Potawatomi Nation, Kansas); Red Cliff Boy’s Reservation, Montana (previously [FR Doc. 2016–23806 Filed 9–30–16; 8:45 am] Band of Lake Superior Chippewa listed as the Chippewa-Cree Indians of BILLING CODE 4312–52–P Indians of Wisconsin; Red Lake Band of the Rocky Boy’s Reservation, Montana); Fond du Lac Band of the Minnesota Chippewa Indians, Minnesota; Sac & DEPARTMENT OF THE INTERIOR Fox Nation of Missouri in Kansas and Chippewa Tribe, Minnesota; Grand Portage Band of the Minnesota Nebraska; Sac & Fox Nation, Oklahoma; National Park Service Sac & Fox Tribe of the Mississippi in Chippewa Tribe, Minnesota; Grand Iowa; Seneca Nation of Indians Traverse Band of Ottawa and Chippewa [NPS–WASO–NAGPRA–22015; (previously listed as the Seneca Nation Indians, Michigan; Keweenaw Bay PPWOCRADN0–PCU00RP14.R50000] of Indians, New York); Seneca-Cayuga Indian Community, Michigan; Lac Courte Oreilles Band of Lake Superior Notice of Inventory Completion: Nation (previously listed as the Seneca- Peabody Museum of Archaeology and Cayuga Tribe of Oklahoma); Shawnee Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Ethnology, Harvard University, Tribe; Sokaogon Chippewa Community, Cambridge, MA Wisconsin; St. Croix Chippewa Indians Chippewa Indians of the Lac du of Wisconsin; Stockbridge Munsee Flambeau Reservation of Wisconsin; Lac AGENCY: National Park Service, Interior. Community, Wisconsin; Tonawanda Vieux Desert Band of Lake Superior ACTION: Notice. Band of Seneca (previously listed as the Chippewa Indians of Michigan; Leech Tonawanda Band of Seneca of New Lake Band of the Minnesota Chippewa SUMMARY: The Peabody Museum of York); Turtle Mountain Band of Tribe, Minnesota; Little River Band of Archaeology and Ethnology has Chippewa Indians of North Dakota; Ottawa Indians, Michigan; Little completed an inventory of human White Earth Band of Minnesota Traverse Bay Bands of Odawa Indians, remains in consultation with the Chippewa Tribe, Minnesota; and the Michigan; Mille Lacs Band of the appropriate Indian tribes or Native Wyandotte Nation (hereinafter referred Minnesota Chippewa Tribe, Minnesota; Hawaiian organizations, and has to as ‘‘The Invited and Consulted Ottawa Tribe of Oklahoma; Red Cliff determined that there is no cultural Tribes’’). Band of Lake Superior Chippewa affiliation between the human remains Indians of Wisconsin; Red Lake Band of and any present-day Indian tribes or History and Description of the Remains Chippewa Indians, Minnesota; Saginaw Native Hawaiian organizations. In 1882, human remains representing, Chippewa Indian Tribe of Michigan; Representatives of any Indian tribe or at minimum, 32 individuals were Sault Ste. Marie Tribe of Chippewa Native Hawaiian organization not removed from the Devil River Mound Indians, Michigan; Sokaogon Chippewa identified in this notice that wish to Group (Michigan State Site #20AL1) in Community, Wisconsin; St. Croix request transfer of control of these Alpena County, MI, by Henry Gilman. Chippewa Indians of Wisconsin; Turtle human remains should submit a written
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request to the Peabody Museum of of Potawatomi Indians, Michigan and to as ‘‘The Invited and Consulted Archaeology and Ethnology. If no Indiana; Saginaw Chippewa Indian Tribes’’). additional requestors come forward, Tribe of Michigan; and Sault Ste. Marie History and Description of the Remains transfer of control of the human remains Tribe of Chippewa Indians, Michigan. to the Indian tribes or Native Hawaiian Additional requests for consultation In 1872, human remains representing, organizations stated in this notice may were sent to the Absentee-Shawnee at minimum, 14 individual were proceed. Tribe of Indians of Oklahoma; Bad River removed from the St. Claire Mound DATES: Representatives of any Indian Band of the Lake Superior Tribe of Group, in St. Claire County, MI, by tribe or Native Hawaiian organization Chippewa Indians of the Bad River Henry Gilman as part of a Peabody not identified in this notice that wish to Reservation, Wisconsin; Bois Forte Band Museum expedition. No known request transfer of control of these (Nett Lake) of the Minnesota Chippewa individuals were identified. At an unknown time, human remains human remains should submit a written Tribe, Minnesota; Chippewa Cree representing, at minimum, 5 individuals request with information in support of Indians of the Rocky Boy’s Reservation, were removed from the St. Claire the request to the Peabody Museum of Montana (previously listed as the Archaeology and Ethnology at the Mound Group, in St. Claire County, MI, Chippewa-Cree Indians of the Rocky by Henry Gilman. They were donated by address in this notice by November 2, Boy’s Reservation, Montana); Citizen 2016. Mr. Gilman in 1873. No known Potawatomi Nation, Oklahoma; individuals were identified. ADDRESSES: Patricia Capone, Museum Delaware Nation, Oklahoma; Delaware Curator and Director of Research and Tribe of Indians; Fond du Lac Band of Determinations Made by the Peabody Repatriation, Peabody Museum of the Minnesota Chippewa Tribe, Museum of Archaeology and Ethnology Archaeology and Ethnology, Harvard Minnesota; Forest County Potawatomi Officials of the Peabody Museum of University, 11 Divinity Avenue, Community, Wisconsin; Grand Portage Archaeology and Ethnology have Cambridge, MA 02138, telephone (617) Band of the Minnesota Chippewa Tribe, determined that: 496–3702, email pcapone@ Minnesota; Ho-Chunk Nation of • Pursuant to 25 U.S.C. 3001(9), the fas.harvard.edu. Wisconsin; Kickapoo Traditional Tribe human remains described in this notice SUPPLEMENTARY INFORMATION: Notice is of Texas; Kickapoo Tribe of Indians of are Native American based on here given in accordance with the the Kickapoo Reservation in Kansas; archeological contexts, museum records, Native American Graves Protection and Kickapoo Tribe of Oklahoma; Lac and/or osteological evidence. Repatriation Act (NAGPRA), 25 U.S.C. Courte Oreilles Band of Lake Superior • Pursuant to 25 U.S.C. 3001(9), the 3003, of the completion of an inventory Chippewa Indians of Wisconsin; Lac du human remains described in this notice of human remains under the control of Flambeau Band of Lake Superior represent the physical remains of 19 the Peabody Museum of Archaeology Chippewa Indians of the Lac du individuals of Native American and Ethnology, Harvard University, ancestry. Flambeau Reservation of Wisconsin; • Cambridge, MA. The human remains Leech Lake Band of the Minnesota Pursuant to 25 U.S.C. 3001(2), a were removed from St. Clair County, MI. Chippewa Tribe, Minnesota; relationship of shared group identity This notice is published as part of the Menominee Indian Tribe of Wisconsin; cannot be reasonably traced between the Native American human remains and National Park Service’s administrative Miami Tribe of Oklahoma; Mille Lacs responsibilities under NAGPRA, 25 any present-day Indian tribe. Band of the Minnesota Chippewa Tribe, • U.S.C. 3003(d)(3) and 43 CFR 10.11(d). According to final judgments of the Minnesota; Oneida Nation (previously Indian Claims Commission or the Court The determinations in this notice are listed as the Oneida Tribe of Indians of the sole responsibility of the museum, of Federal Claims, Treaties, Acts of Wisconsin); Ottawa Tribe of Oklahoma; Congress, or Executive Orders, the land institution, or Federal agency that has Peoria Tribe of Indians of Oklahoma; control of the Native American human from which the Native American human Prairie Band Potawatomi Nation remains were removed is the aboriginal remains. The National Park Service is (previously listed as the Prairie Band of not responsible for the determinations land of the Bad River Band of the Lake Potawatomi Nation, Kansas); Red Cliff in this notice. Superior Tribe of Chippewa Indians of Band of Lake Superior Chippewa the Bad River Reservation, Wisconsin; Consultation Indians of Wisconsin; Red Lake Band of Bay Mills Indian Community, Michigan; A detailed assessment of the human Chippewa Indians, Minnesota; Sac & Bois Forte Band (Nett Lake) of the remains was made by the Peabody Fox Nation of Missouri in Kansas and Minnesota Chippewa Tribe, Minnesota; Museum of Archaeology and Ethnology Nebraska; Sac & Fox Nation, Oklahoma; Chippewa Cree Indians of the Rocky professional staff in consultation with Sac & Fox Tribe of the Mississippi in Boy’s Reservation, Montana (previously representatives of Bay Mills Indian Iowa; Seneca Nation of Indians listed as the Chippewa-Cree Indians of Community, Michigan; Grand Traverse (previously listed as the Seneca Nation the Rocky Boy’s Reservation, Montana); Band of Ottawa and Chippewa Indians, of New York); Seneca-Cayuga Nation Citizen Potawatomi Nation, Oklahoma; Michigan; Hannahville Indian (previously listed as the Seneca-Cayuga Fond du Lac Band of the Minnesota Community, Michigan; Keweenaw Bay Tribe of Oklahoma); Shawnee Tribe; Chippewa Tribe, Minnesota; Forest Indian Community, Michigan; Lac Sokaogon Chippewa Community, County Potawatomi Community, Vieux Desert Band of Lake Superior Wisconsin; St. Croix Chippewa Indians Wisconsin; Grand Portage Band of the Chippewa Indians of Michigan; Little of Wisconsin; Stockbridge Munsee Minnesota Chippewa Tribe, Minnesota; River Band of Ottawa Indians, Community, Wisconsin; Tonawanda Grand Traverse Band of Ottawa and Michigan; Little Traverse Bay Bands of Band of Seneca (previously listed as the Chippewa Indians, Michigan; Odawa Indians, Michigan; Match-e-be- Tonawanda Band of Seneca Indians of Hannahville Indian Community, nash-she-wish Band of Pottawatomi New York); Turtle Mountain Band of Michigan; Keweenaw Bay Indian Indians of Michigan; Nottawaseppi Chippewa Indians of North Dakota; Community, Michigan; Lac Courte Huron Band of the Potawatomi, White Earth Band of Minnesota Oreilles Band of Lake Superior Michigan (previously listed as the Chippewa Tribe, Minnesota; and the Chippewa Indians of Wisconsin; Lac du Huron Potawatomi, Inc.); Pokagon Band Wyandotte Nation (hereinafter referred Flambeau Band of Lake Superior
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Chippewa Indians of the Lac du DEPARTMENT OF THE INTERIOR this notice are the sole responsibility of Flambeau Reservation of Wisconsin; Lac the museum, institution, or Federal Vieux Desert Band of Lake Superior National Park Service agency that has control of the Native Chippewa Indians of Michigan; Leech [NPS–WASO–NAGPRA–22006; American human remains. The National Lake Band of the Minnesota Chippewa PPWOCRADN0–PCU00RP14.R50000] Park Service is not responsible for the Tribe, Minnesota; Little River Band of determinations in this notice. Ottawa Indians, Michigan; Little Notice of Inventory Completion: Consultation Traverse Bay Bands of Odawa Indians, University of Pennsylvania Museum of Michigan; Match-e-be-nash-she-wish Archaeology and Anthropology, A detailed assessment of the human Band of Pottawatomi Indians of Philadelphia, PA remains was made by the University of Michigan; Mille Lacs Band of the Pennsylvania Museum of Archaeology Minnesota Chippewa Tribe, Minnesota; AGENCY: National Park Service, Interior. and Anthropology professional staff in Nottawaseppi Huron Band of the ACTION: Notice. consultation with representatives of the Potawatomi, Michigan (previously listed Citizen Potawatomi Nation, Oklahoma; as the Huron Potawatomi, Inc.); Ottawa SUMMARY: The University of Forest County Potawatomi Community, Tribe of Oklahoma; Pokagon Band of Pennsylvania Museum of Archaeology Wisconsin; Prairie Band of Potawatomi Potawatomi Indians, Michigan and and Anthropology has completed an Nation (previously listed as Prairie Band Indiana; Prairie Band Potawatomi inventory of human remains, in of Potawatomi Nation, Kansas); Pokagon Nation (previously listed as the Prairie consultation with the appropriate Band of Potawatomi Indians, Michigan Band of Potawatomi Nation, Kansas); Indian tribes or Native Hawaiian and Indiana; and with the Michigan Red Cliff Band of Lake Superior organizations, and has determined that Anishinabek Cultural Preservation & Chippewa Indians of Wisconsin; Red there is a cultural affiliation between the Repatriation Alliance, a non-federally Lake Band of Chippewa Indians, human remains and present-day Indian recognized entity, representing the Minnesota; Saginaw Chippewa Indian tribes or Native Hawaiian organizations. following federally recognized tribes: Tribe of Michigan; Sault Ste. Marie Lineal descendants or representatives of Bay Mills Indian Community, Michigan; Tribe of Chippewa Indians, Michigan; any Indian tribe or Native Hawaiian Grand Traverse Band of Ottawa and Sokaogon Chippewa Community, organization not identified in this notice Chippewa Indians, Michigan; Wisconsin; St. Croix Chippewa Indians that wish to request transfer of control Hannahville Indian Community, of Wisconsin; Turtle Mountain Band of of these human remains should submit Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Chippewa Indians of North Dakota; a written request to the University of Band of Lake Superior Chippewa White Earth Band of Minnesota Pennsylvania Museum of Archaeology Indians of Michigan; Little River Band Chippewa Tribe, Minnesota; and the and Anthropology. If no additional of Ottawa Indians, Michigan; Little Wyandotte Nation (hereinafter referred requestors come forward, transfer of Traverse Bay Bands of Odawa Indians, to as ‘‘The Aboriginal Land Tribes’’). control of the human remains to the Michigan; Match-e-be-nash-she-wish • lineal descendants, Indian tribes, or Pursuant to 43 CFR 10.11(c)(1), the Native Hawaiian organizations stated in Band of Pottawatomi Indians of disposition of the human remains may this notice may proceed. Michigan; Nottawaseppi Huron Band of be to The Aboriginal Land Tribes. DATES: Lineal descendants or the Potawatomi, Michigan (previously Additional Requestors and Disposition representatives of any Indian tribe or listed as the Huron Potawatomi, Inc.); Native Hawaiian organization not Saginaw Chippewa Indian Tribe of Representatives of any Indian tribe or identified in this notice that wish to Michigan; and the Sault Ste. Marie Tribe Native Hawaiian organization not request transfer of control of these of Chippewa Indians, Michigan. identified in this notice that wish to human remains should submit a written request transfer of control of these History and Description of the Remains request with information in support of human remains should submit a written At an unknown date prior to 1839, the request to the University of request with information in support of human remains representing, at Pennsylvania Museum of Archaeology the request to Patricia Capone, Museum minimum, one individuals (UPM#: 97– and Anthropology at the address in this Curator and Director of Research and 606–657) were obtained by Dr. Joseph notice by November 2, 2016. Repatriation, Peabody Museum of Walker, of the United States Army, from Archaeology and Ethnology, Harvard ADDRESSES: Dr. Julian Siggers, Director, an unknown location in Michigan while University, 11 Divinity Avenue, University of Pennsylvania Museum of he was stationed there (Morton 1839: Cambridge, MA 02138, telephone (617) Archaeology and Anthropology, 186). Dr. Walker subsequently sent the 496–3702, email pcapone@ Philadelphia, PA 19104, telephone (215) remains to Dr. Samuel G. Morton for fas.harvard.edu by November 2, 2016. 898–4050. inclusion in his collection of human After that date, if no additional SUPPLEMENTARY INFORMATION: Notice is crania from around the world. The requestors have come forward, transfer here given in accordance with the human remains are represented by a of control of the human remains to The Native American Graves Protection and cranium and mandible) of a single male Aboriginal Land Tribes may proceed. Repatriation Act (NAGPRA), 25 U.S.C. individual 30–40 years of age. The The Peabody Museum of Archaeology 3003, of the completion of an inventory condition of the remains suggests they and Ethnology is responsible for of human remains under the control of were not buried. No known individuals notifying The Invited and Consulted the University of Pennsylvania Museum were identified. No associated funerary Tribes that this notice has been of Archaeology and Anthropology, objects are present. published. Philadelphia, PA. The human remains At an unknown date prior to 1840, were removed from unknown locations human remains representing, at Dated: September 19, 2016. in Michigan. minimum, one individual (UPM#: 97– Melanie O’Brien, This notice is published as part of the 606–737) was obtained from an Manager, National NAGPRA Program. National Park Service’s administrative unknown site in Michigan by Col. John [FR Doc. 2016–23810 Filed 9–30–16; 8:45 am] responsibilities under NAGPRA, 25 James Abert. The remains were BILLING CODE 4312–52–P U.S.C. 3003(d)(3). The determinations in subsequently transferred to Dr. Samuel
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Morton in Philadelphia for inclusion in Prairie Band of Potawatomi Nation of Chippewa Indians, Michigan that this his collection of human crania from (previously listed as Prairie Band of notice has been published. around the world. The human remains Potawatomi Nation, Kansas); Pokagon Dated: September 19, 2016. are those of a single male individual Band of Potawatomi Indians, Michigan Melanie O’Brien, estimated to be 60+ years old and are and Indiana. Manager, National NAGPRA Program. represented by a cranium. The Additional Requestors and Disposition condition of the remains suggests they [FR Doc. 2016–23803 Filed 9–30–16; 8:45 am] were not buried. No known individuals Lineal descendants or representatives BILLING CODE 4312–52–P were identified. No associated funerary of any Indian tribe or Native Hawaiian objects are present. organization not identified in this notice DEPARTMENT OF THE INTERIOR At this time, the Academy of Natural that wish to request transfer of control { Sciences of Philadelphia provided of these human remains and associated National Park Service storage space for much of Dr. Morton’s funerary objects} should submit a collections, including these human written request with information in [NPS–WASO–NAGPRA–22013; remains, until his death in 1851. In support of the request to Dr. Julian PPWOCRADN0–PCU00RP14.R50000] 1853, Dr. Morton’s collection, including Siggers, University of Pennsylvania Notice of Inventory Completion: all of the remains described above, were Museum of Archaeology and Peabody Museum of Archaeology and purchased from Dr. Morton’s Estate and Anthropology, 3260 South Street, Ethnology, Harvard University, formally presented to the Academy of Philadelphia, PA 19104, telephone (215) Cambridge, MA Natural Sciences. In 1966, Dr. Morton’s 898–4050, by November 2, 2016. After collection was loaned to the University that date, if no additional requestors AGENCY: National Park Service, Interior. of Pennsylvania Museum of have come forward, transfer of control ACTION: Notice. Archaeology and Anthropology. In of the human remains to the Citizen 1997, the collection was formally gifted Potawatomi Nation, Oklahoma; Forest SUMMARY: The Peabody Museum of to the University of Pennsylvania County Potawatomi Community, Archaeology and Ethnology has Museum of Archaeology and Wisconsin; Hannahville Indian completed an inventory of human Anthropology. Community, Michigan; Match-e-be- remains in consultation with the Museum documentation, collector nash-she-wish Band of Pottawatomi appropriate Indian tribes or Native records and anthropological literature Indians of Michigan; Nottawaseppi Hawaiian organizations, and has indicate that the two sets of human Huron Band of the Potawatomi, determined that there is no cultural remains date to the Historic Period. The Michigan (previously listed as the affiliation between the human remains human remains have been identified as Huron Potawatomi, Inc.); Prairie Band and any present-day Indian tribes or Native American based on the specific of Potawatomi Nation (previously listed Native Hawaiian organizations. cultural and geographic attributions in as Prairie Band of Potawatomi Nation, Representatives of any Indian tribe or the museum records. Collector’s Kansas; Pokagon Band of Potawatomi Native Hawaiian organization not records, museum documentation and Indians, Michigan and Indiana may identified in this notice that wish to published historical sources identify the proceed. request transfer of control of these human remains above as Potawatomi. The University of Pennsylvania human remains should submit a written Scholarly ethno-historic and Museum of Archaeology and request to the Peabody Museum of anthropological publications and land Anthropology is responsible for Archaeology and Ethnology. If no cession records indicate that the notifying the Citizen Potawatomi additional requestors come forward, geographic location is consistent with Nation, Oklahoma; Forest County transfer of control of the human remains the known historical territory of the Potawatomi Community, Wisconsin; to the Indian tribes or Native Hawaiian Potawatomi. Prairie Band of Potawatomi Nation organizations stated in this notice may (previously listed as Prairie Band of proceed. Determinations made by the {Museum Potawatomi Nation, Kansas); Pokagon DATES: Representatives of any Indian or Federal Agency} Band of Potawatomi Indians, Michigan tribe or Native Hawaiian organization Officials of the University of and Indiana; and the Michigan not identified in this notice that wish to Pennsylvania Museum of Archaeology Anishinabek Cultural Preservation & request transfer of control of these and Anthropology have determined Repatriation Alliance, a non-federally human remains should submit a written that: recognized entity, representing the request with information in support of • Pursuant to 25 U.S.C. 3001(9), the following federally recognized tribes: the request to the Peabody Museum of human remains described in this notice Bay Mills Indian Community, Michigan; Archaeology and Ethnology at the represent the physical remains of two Grand Traverse Band of Ottawa and address in this notice by November 2, individuals of Native American Chippewa Indians, Michigan; 2016. ancestry. Hannahville Indian Community, • Pursuant to 25 U.S.C. 3001(2), there Michigan; Keweenaw Bay Indian ADDRESSES: Patricia Capone, Museum is a relationship of shared group Community, Michigan; Lac Vieux Desert Curator and Director of Research and identity that can be reasonably traced Band of Lake Superior Chippewa Repatriation, Peabody Museum of between the Native American human Indians of Michigan; Little River Band Archaeology and Ethnology, Harvard remains and the Citizen Potawatomi of Ottawa Indians, Michigan; Little University, 11 Divinity Avenue, Nation, Oklahoma; Forest County Traverse Bay Bands of Odawa Indians, Cambridge, MA 02138, telephone (617) Potawatomi Community, Wisconsin; Michigan; Match-e-be-nash-she-wish 496–3702, email pcapone@ Hannahville Indian Community, Band of Pottawatomi Indians of fas.harvard.edu. Michigan; Match-e-be-nash-she-wish Michigan; Nottawaseppi Huron Band of SUPPLEMENTARY INFORMATION: Notice is Band of Pottawatomi Indians of the Potawatomi, Michigan (previously here given in accordance with the Michigan; Nottawaseppi Huron Band of listed as the Huron Potawatomi, Inc.); Native American Graves Protection and the Potawatomi, Michigan (previously Saginaw Chippewa Indian Tribe of Repatriation Act (NAGPRA), 25 U.S.C. listed as the Huron Potawatomi, Inc.); Michigan; and the Sault Ste. Marie Tribe 3003, of the completion of an inventory
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of human remains under the control of Chippewa Indians of the Lac du Native American human remains and the Peabody Museum of Archaeology Flambeau Reservation of Wisconsin; any present-day Indian tribe. and Ethnology, Harvard University, Leech Lake Band of the Minnesota • According to final judgments of the Cambridge, MA. The human remains Chippewa Tribe, Minnesota; Indian Claims Commission or the Court were removed from Kent County, MI. Menominee Indian Tribe of Wisconsin; of Federal Claims, Treaties, Acts of This notice is published as part of the Miami Tribe of Oklahoma; Mille Lacs Congress, or Executive Orders, the land National Park Service’s administrative Band of the Minnesota Chippewa Tribe, from which the Native American human responsibilities under NAGPRA, 25 Minnesota; Oneida Nation (previously remains were removed is the aboriginal U.S.C. 3003(d)(3) and 43 CFR 10.11(d). listed as the Oneida Tribe of Indians of land of the Bad River Band of the Lake The determinations in this notice are Wisconsin); Ottawa Tribe of Oklahoma; Superior Tribe of Chippewa Indians of the sole responsibility of the museum, Peoria Tribe of Indians of Oklahoma; the Bad River Reservation, Wisconsin; institution, or Federal agency that has Prairie Band Potawatomi Nation Bay Mills Indian Community, Michigan; control of the Native American human (previously listed as the Prairie Band of Bois Forte Band (Nett Lake) of the remains The National Park Service is Potawatomi Nation, Kansas); Red Cliff Minnesota Chippewa Tribe, Minnesota; not responsible for the determinations Band of Lake Superior Chippewa Chippewa Cree Indians of the Rocky in this notice. Indians of Wisconsin; Red Lake Band of Boy’s Reservation, Montana (previously listed as the Chippewa-Cree Indians of Consultation Chippewa Indians, Minnesota; Sac & Fox Nation of Missouri in Kansas and the Rocky Boy’s Reservation, Montana); A detailed assessment of the human Nebraska; Sac & Fox Nation, Oklahoma; Citizen Potawatomi Nation, Oklahoma; remains was made by the Peabody Sac & Fox Tribe of the Mississippi in Fond du Lac Band of the Minnesota Museum of Archaeology and Ethnology Iowa; Seneca Nation of Indians Chippewa Tribe, Minnesota; Forest professional staff in consultation with (previously listed as the Seneca Nation County Potawatomi Community, representatives of Bay Mills Indian of New York); Seneca-Cayuga Nation Wisconsin; Grand Portage Band of the Community, Michigan; Grand Traverse (previously listed as the Seneca-Cayuga Minnesota Chippewa Tribe, Minnesota; Band of Ottawa and Chippewa Indians, Tribe of Oklahoma); Shawnee Tribe; Grand Traverse Band of Ottawa and Michigan; Hannahville Indian Sokaogon Chippewa Community, Chippewa Indians, Michigan; Community, Michigan; Keweenaw Bay Wisconsin; St. Croix Chippewa Indians Hannahville Indian Community, Indian Community, Michigan; Lac of Wisconsin; Stockbridge Munsee Michigan; Keweenaw Bay Indian Vieux Desert Band of Lake Superior Community, Wisconsin; Tonawanda Community, Michigan; Lac Courte Chippewa Indians of Michigan; Little Band of Seneca (previously listed as the Oreilles Band of Lake Superior River Band of Ottawa Indians, Tonawanda Band of Seneca Indians of Chippewa Indians of Wisconsin; Lac du Michigan; Little Traverse Bay Bands of New York); Turtle Mountain Band of Flambeau Band of Lake Superior Odawa Indians, Michigan; Match-e-be- Chippewa Indians of North Dakota; Chippewa Indians of the Lac du nash-she-wish Band of Pottawatomi White Earth Band of Minnesota Flambeau Reservation of Wisconsin; Lac Indians of Michigan; Nottawaseppi Chippewa Tribe, Minnesota; and the Vieux Desert Band of Lake Superior Huron Band of the Potawatomi, Wyandotte Nation (hereinafter referred Chippewa Indians of Michigan; Leech Michigan (previously listed as the to as ‘‘The Invited and Consulted Lake Band of the Minnesota Chippewa Huron Potawatomi, Inc.); Pokagon Band Tribes’’). Tribe, Minnesota; Little River Band of of Potawatomi Indians, Michigan and Ottawa Indians, Michigan; Little Indiana; Saginaw Chippewa Indian History and Description of the Remains Traverse Bay Bands of Odawa Indians, Tribe of Michigan; and Sault Ste. Marie In 1885, human remains representing, Michigan; Match-e-be-nash-she-wish Tribe of Chippewa Indians, Michigan. at minimum, 2 individuals were Band of Pottawatomi Indians of Additional requests for consultation removed from the Court Street Mound Michigan; Mille Lacs Band of the were sent to the Absentee-Shawnee in Kent County, MI, by employees of Minnesota Chippewa Tribe, Minnesota; Tribe of Indians of Oklahoma; Bad River Shiver, Weatherly & Company while Nottawaseppi Huron Band of the Band of the Lake Superior Tribe of digging for a waterline under Court Potawatomi, Michigan (previously listed Chippewa Indians of the Bad River Street. The remains were collected by as the Huron Potawatomi, Inc.); Ottawa Reservation, Wisconsin; Bois Forte Band W.L. Coffinberry who donated them to Tribe of Oklahoma; Pokagon Band of (Nett Lake) of the Minnesota Chippewa the Peabody Museum in the same year. Potawatomi Indians, Michigan and Tribe, Minnesota; Chippewa Cree No known individuals were identified. Indiana; Prairie Band Potawatomi Indians of the Rocky Boy’s Reservation, Nation (previously listed as the Prairie Montana (previously listed as the Determinations Made by the Peabody Band of Potawatomi Nation, Kansas); Chippewa-Cree Indians of the Rocky Museum of Archaeology and Ethnology Red Cliff Band of Lake Superior Boy’s Reservation, Montana); Citizen Officials of the Peabody Museum of Chippewa Indians of Wisconsin; Red Potawatomi Nation, Oklahoma; Archaeology and Ethnology have Lake Band of Chippewa Indians, Delaware Nation, Oklahoma; Delaware determined that: Minnesota; Saginaw Chippewa Indian Tribe of Indians; Fond du Lac Band of • Pursuant to 25 U.S.C. 3001(9), the Tribe of Michigan; Sault Ste. Marie the Minnesota Chippewa Tribe, human remains described in this notice Tribe of Chippewa Indians, Michigan; Minnesota; Forest County Potawatomi are Native American based on Sokaogon Chippewa Community, Community, Wisconsin; Grand Portage osteological examination and Wisconsin; St. Croix Chippewa Indians Band of the Minnesota Chippewa Tribe, archeological context. of Wisconsin; Turtle Mountain Band of Minnesota; Ho-Chunk Nation of • Pursuant to 25 U.S.C. 3001(9), the Chippewa Indians of North Dakota; Wisconsin; Kickapoo Traditional Tribe human remains described in this notice White Earth Band of Minnesota of Texas; Kickapoo Tribe of Indians of represent the physical remains of 2 Chippewa Tribe, Minnesota (hereinafter the Kickapoo Reservation in Kansas; individuals of Native American referred to as ‘‘The Aboriginal Land Kickapoo Tribe of Oklahoma; Lac ancestry. Tribes’’). Courte Oreilles Band of Lake Superior • Pursuant to 25 U.S.C. 3001(2), a • Pursuant to 43 CFR 10.11(c)(1), the Chippewa Indians of Wisconsin; Lac du relationship of shared group identity disposition of the human remains may Flambeau Band of Lake Superior cannot be reasonably traced between the be to The Aboriginal Land Tribes.
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Additional Requestors and Disposition DATES: Representatives of any Indian Tribe of Indians of Oklahoma; Bad River Representatives of any Indian tribe or tribe or Native Hawaiian organization Band of the Lake Superior Tribe of Native Hawaiian organization not not identified in this notice that wish to Chippewa Indians of the Bad River identified in this notice that wish to request transfer of control of these Reservation, Wisconsin; Bois Forte Band request transfer of control of these human remains should submit a written (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Chippewa Cree human remains should submit a written request with information in support of the request to the Peabody Museum of Indians of the Rocky Boy’s Reservation, request with information in support of Archaeology and Ethnology at the Montana (previously listed as the the request to Patricia Capone, Museum address in this notice by November 2, Chippewa-Cree Indians of the Rocky Curator and Director of Research and 2016. Boy’s Reservation, Montana); Citizen Repatriation, Peabody Museum of Potawatomi Nation, Oklahoma; Archaeology and Ethnology, Harvard ADDRESSES: Patricia Capone, Museum Delaware Nation, Oklahoma; Delaware University, 11 Divinity Avenue, Curator and Director of Research and Tribe of Indians; Fond du Lac Band of Cambridge, MA 02138, telephone (617) Repatriation, Peabody Museum of the Minnesota Chippewa Tribe, 496–3702, email pcapone@ Archaeology and Ethnology, Harvard Minnesota; Forest County Potawatomi fas.harvard.edu by November 2, 2016. University, 11 Divinity Avenue, Cambridge, MA 02138, telephone (617) Community, Wisconsin; Grand Portage After that date, if no additional Band of the Minnesota Chippewa Tribe, requestors have come forward, transfer 496–3702, email pcapone@ fas.harvard.edu. Minnesota; Ho-Chunk Nation of of control of the human remains to The Wisconsin; Kickapoo Traditional Tribe Aboriginal Land Tribes may proceed. SUPPLEMENTARY INFORMATION: Notice is of Texas; Kickapoo Tribe of Indians of The Peabody Museum of Archaeology here given in accordance with the the Kickapoo Reservation in Kansas; and Ethnology is responsible for Native American Graves Protection and Kickapoo Tribe of Oklahoma; Lac notifying The Invited and Consulted Repatriation Act (NAGPRA), 25 U.S.C. Courte Oreilles Band of Lake Superior Tribes that this notice has been 3003, of the completion of an inventory Chippewa Indians of Wisconsin; Lac du published. of human remains under the control of Flambeau Band of Lake Superior Dated: September 19, 2016. the Peabody Museum of Archaeology Chippewa Indians of the Lac du Melanie O’Brien, and Ethnology, Harvard University, Flambeau Reservation of Wisconsin; Manager, National NAGPRA Program. Cambridge, MA. The human remains Leech Lake Band of the Minnesota were removed from Newaygo County, Chippewa Tribe, Minnesota; [FR Doc. 2016–23808 Filed 9–30–16; 8:45 am] MI. BILLING CODE 4312–52–P Menominee Indian Tribe of Wisconsin; This notice is published as part of the Miami Tribe of Oklahoma; Mille Lacs National Park Service’s administrative Band of the Minnesota Chippewa Tribe, responsibilities under NAGPRA, 25 DEPARTMENT OF THE INTERIOR Minnesota; Oneida Nation (previously U.S.C. 3003(d)(3) and 43 CFR 10.11(d). listed as the Oneida Tribe of Indians of National Park Service The determinations in this notice are Wisconsin); Ottawa Tribe of Oklahoma; the sole responsibility of the museum, Peoria Tribe of Indians of Oklahoma; institution, or Federal agency that has Prairie Band Potawatomi Nation [NPS–WASO–NAGPRA–22014: control of the Native American human PPWOCRADN0–PCU00RP14.R50000] (previously listed as the Prairie Band of remains. The National Park Service is Potawatomi Nation, Kansas); Red Cliff Notice of Inventory Completion: not responsible for the determinations Band of Lake Superior Chippewa Peabody Museum of Archaeology and in this notice. Indians of Wisconsin; Red Lake Band of Ethnology, Harvard University, Consultation Chippewa Indians, Minnesota; Sac & Cambridge, MA Fox Nation of Missouri in Kansas and A detailed assessment of the human Nebraska; Sac & Fox Nation, Oklahoma; AGENCY: National Park Service, Interior. remains was made by the Peabody Sac & Fox Tribe of the Mississippi in ACTION: Notice. Museum of Archaeology and Ethnology Iowa; Seneca Nation of Indians professional staff in consultation with (previously listed as the Seneca Nation SUMMARY: The Peabody Museum of representatives of Bay Mills Indian of New York); Seneca-Cayuga Nation Archaeology and Ethnology has Community, Michigan; Grand Traverse (previously listed as the Seneca-Cayuga completed an inventory of human Band of Ottawa and Chippewa Indians, Tribe of Oklahoma); Shawnee Tribe; remains in consultation with the Michigan; Hannahville Indian Sokaogon Chippewa Community, appropriate Indian tribes or Native Community, Michigan; Keweenaw Bay Wisconsin; St. Croix Chippewa Indians Hawaiian organizations, and has Indian Community, Michigan; Lac of Wisconsin; Stockbridge Munsee determined that there is no cultural Vieux Desert Band of Lake Superior Community, Wisconsin; Tonawanda affiliation between the human remains Chippewa Indians of Michigan; Little Band of Seneca (previously listed as the and any present-day Indian tribes or River Band of Ottawa Indians, Tonawanda Band of Seneca Indians of Native Hawaiian organizations. Michigan; Little Traverse Bay Bands of New York); Turtle Mountain Band of Representatives of any Indian tribe or Odawa Indians, Michigan; Match-e-be- Chippewa Indians of North Dakota; Native Hawaiian organization not nash-she-wish Band of Pottawatomi White Earth Band of Minnesota identified in this notice that wish to Indians of Michigan; Nottawaseppi Chippewa Tribe, Minnesota; and the request transfer of control of these Huron Band of the Potawatomi, Wyandotte Nation (hereinafter referred human remains should submit a written Michigan (previously listed as the to as ‘‘The Invited and Consulted request to the Peabody Museum of Huron Potawatomi, Inc.); Pokagon Band Tribes’’). Archaeology and Ethnology. If no of Potawatomi Indians, Michigan and additional requestors come forward, Indiana; Saginaw Chippewa Indian History and Description of the Remains transfer of control of the human remains Tribe of Michigan; and Sault Ste. Marie Between 1888 and 1916, human to the Indian tribes or Native Hawaiian Tribe of Chippewa Indians, Michigan. remains representing, at minimum, 1 organizations stated in this notice may Additional requests for consultation individual were removed from Fremont proceed. were sent to the Absentee-Shawnee in Newaygo County, MI, by Theodore
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Jewett Eastman. They were donated to Chippewa Indians of Wisconsin; Turtle human remains should submit a written the Peabody Museum by Mrs. Henry H. Mountain Band of Chippewa Indians of request to the Peabody Museum of Richardson in 1938. No known North Dakota; White Earth Band of Archaeology and Ethnology. If no individuals were identified. Minnesota Chippewa Tribe, Minnesota additional requestors come forward, (hereinafter referred to as ‘‘The transfer of control of the human remains Determinations Made by the Peabody Aboriginal Land Tribes’’). to the Indian tribes or Native Hawaiian Museum of Archaeology and Ethnology • Pursuant to 43 CFR 10.11(c)(1), the organizations stated in this notice may Officials of the Peabody Museum of disposition of the human remains may proceed. Archaeology and Ethnology have be to The Aboriginal Land Tribes. DATES: Representatives of any Indian determined that: • Additional Requestors and Disposition tribe or Native Hawaiian organization Pursuant to 25 U.S.C. 3001(9), the not identified in this notice that wish to human remains described in this notice Representatives of any Indian tribe or request transfer of control of these are Native American based on Native Hawaiian organization not human remains should submit a written archeological contexts, museum records, identified in this notice that wish to request with information in support of and osteological evidence. request transfer of control of these • the request to the Peabody Museum of Pursuant to 25 U.S.C. 3001(9), the human remains should submit a written Archaeology and Ethnology at the human remains described in this notice request with information in support of address in this notice by November 2, represent the physical remains of 1 the request to Patricia Capone, Museum 2016. individuals of Native American Curator and Director of Research and ADDRESSES: ancestry. Repatriation, Peabody Museum of Patricia Capone, Museum • Pursuant to 25 U.S.C. 3001(2), a Archaeology and Ethnology, Harvard Curator and Director of Research and relationship of shared group identity University, 11 Divinity Avenue, Repatriation, Peabody Museum of cannot be reasonably traced between the Cambridge, MA 02138, telephone (617) Archaeology and Ethnology, Harvard University, 11 Divinity Avenue, Native American human remains and 496–3702, email pcapone@ Cambridge, MA 02138, telephone (617) any present-day Indian tribe. fas.harvard.edu by November 2, 2016. • 496–3702, email pcapone@ According to final judgments of the After that date, if no additional fas.harvard.edu. Indian Claims Commission or the Court requestors have come forward, transfer of Federal Claims, Treaties, Acts of of control of the human remains to The SUPPLEMENTARY INFORMATION: Notice is Congress, or Executive Orders, the land Aboriginal Land Tribes may proceed. here given in accordance with the from which the Native American human The Peabody Museum of Archaeology Native American Graves Protection and remains were removed is the aboriginal and Ethnology is responsible for Repatriation Act (NAGPRA), 25 U.S.C. land of the Bad River Band of the Lake notifying The Invited and Consulted 3003, of the completion of an inventory Superior Tribe of Chippewa Indians of Tribes that this notice has been of human remains under the control of the Bad River Reservation, Wisconsin; published. the Peabody Museum of Archaeology Bay Mills Indian Community, Michigan; Dated: September 19, 2016. and Ethnology, Harvard University, Bois Forte Band (Nett Lake) of the Cambridge, MA. The human remains Melanie O’Brien, Minnesota Chippewa Tribe, Minnesota; were removed from Berrien County, MI. Chippewa Cree Indians of the Rocky Manager, National NAGPRA Program. This notice is published as part of the Boy’s Reservation, Montana (previously [FR Doc. 2016–23809 Filed 9–30–16; 8:45 am] National Park Service’s administrative listed as the Chippewa-Cree Indians of BILLING CODE 4312–52–P responsibilities under NAGPRA, 25 the Rocky Boy’s Reservation, Montana); U.S.C. 3003(d)(3) and 43 CFR 10.11(d). Fond du Lac Band of the Minnesota The determinations in this notice are Chippewa Tribe, Minnesota; Grand DEPARTMENT OF THE INTERIOR the sole responsibility of the museum, Portage Band of the Minnesota National Park Service institution, or Federal agency that has Chippewa Tribe, Minnesota; Grand control of the Native American human Traverse Band of Ottawa and Chippewa [NPS–WASO–NAGPRA–22012; remains. The National Park Service is Indians, Michigan; Keweenaw Bay PPWOCRADN0–PCU00RP14.R50000] not responsible for the determinations Indian Community, Michigan; Lac in this notice. Courte Oreilles Band of Lake Superior Notice of Inventory Completion: Chippewa Indians of Wisconsin; Lac du Peabody Museum of Archaeology and Consultation Flambeau Band of Lake Superior Ethnology, Harvard University, A detailed assessment of the human Chippewa Indians of the Lac du Cambridge, MA remains was made by the Peabody Flambeau Reservation of Wisconsin; Lac AGENCY: National Park Service, Interior. Museum of Archaeology and Ethnology Vieux Desert Band of Lake Superior ACTION: Notice. professional staff in consultation with Chippewa Indians of Michigan; Leech representatives of Bay Mills Indian Lake Band of the Minnesota Chippewa SUMMARY: The Peabody Museum of Community, Michigan; Grand Traverse Tribe, Minnesota; Little River Band of Archaeology and Ethnology has Band of Ottawa and Chippewa Indians, Ottawa Indians, Michigan; Little completed an inventory of human Michigan; Hannahville Indian Traverse Bay Bands of Odawa Indians, remains, in consultation with the Community, Michigan; Keweenaw Bay Michigan; Mille Lacs Band of the appropriate Indian tribes or Native Indian Community, Michigan; Lac Minnesota Chippewa Tribe, Minnesota; Hawaiian organizations, and has Vieux Desert Band of Lake Superior Ottawa Tribe of Oklahoma; Red Cliff determined that there is no cultural Chippewa Indians of Michigan; Little Band of Lake Superior Chippewa affiliation between the human remains River Band of Ottawa Indians, Indians of Wisconsin; Red Lake Band of and any present-day Indian tribes or Michigan; Little Traverse Bay Bands of Chippewa Indians, Minnesota; Saginaw Native Hawaiian organizations. Odawa Indians, Michigan; Match-e-be- Chippewa Indian Tribe of Michigan; Representatives of any Indian tribe or nash-she-wish Band of Pottawatomi Sault Ste. Marie Tribe of Chippewa Native Hawaiian organization not Indians of Michigan; Nottawaseppi Indians, Michigan; Sokaogon Chippewa identified in this notice that wish to Huron Band of the Potawatomi, Community, Wisconsin; St. Croix request transfer of control of these Michigan (previously listed as the
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Huron Potawatomi, Inc.); Pokagon Band Wyandotte Nation (hereinafter referred Lake Band of the Minnesota Chippewa of Potawatomi Indians, Michigan and to as ‘‘The Invited and Consulted Tribe, Minnesota; Little River Band of Indiana; Saginaw Chippewa Indian Tribes’’). Ottawa Indians, Michigan; Little Tribe of Michigan; and Sault Ste. Marie History and Description of the Remains Traverse Bay Bands of Odawa Indians, Tribe of Chippewa Indians, Michigan. Michigan; Match-e-be-nash-she-wish Additional requests for consultation In 1941, human remains representing, Band of Pottawatomi Indians of were sent to the Absentee-Shawnee at minimum, 15 individuals were Michigan; Mille Lacs Band of the Tribe of Indians of Oklahoma; Bad River removed from the Moccasin Bluff site in Minnesota Chippewa Tribe, Minnesota; Band of the Lake Superior Tribe of Berrien County, MI, by John Birdsell. Nottawaseppi Huron Band of the Chippewa Indians of the Bad River They were donated by Mr. Birdsell in Potawatomi, Michigan (previously listed Reservation, Wisconsin; Bois Forte Band the same year. No known individuals as the Huron Potawatomi, Inc.); Ottawa (Nett Lake) of the Minnesota Chippewa were identified. Tribe of Oklahoma; Pokagon Band of Tribe, Minnesota; Chippewa Cree Determinations Made by the Peabody Potawatomi Indians, Michigan and Indians of the Rocky Boy’s Reservation, Museum of Archaeology and Ethnology Montana (previously listed as the Indiana; Prairie Band Potawatomi Chippewa-Cree Indians of the Rocky Officials of the Peabody Museum of Nation (previously listed as the Prairie Boy’s Reservation, Montana); Citizen Archaeology and Ethnology have Band of Potawatomi Nation, Kansas); Potawatomi Nation, Oklahoma; determined that: Red Cliff Band of Lake Superior Delaware Nation, Oklahoma; Delaware • Pursuant to 25 U.S.C. 3001(9), the Chippewa Indians of Wisconsin; Red Tribe of Indians; Fond du Lac Band of human remains described in this notice Lake Band of Chippewa Indians, the Minnesota Chippewa Tribe, are Native American based on Minnesota; Saginaw Chippewa Indian Minnesota; Forest County Potawatomi osteological examination, museum Tribe of Michigan; Sault Ste. Marie Community, Wisconsin; Grand Portage records, and/or archeological context. Tribe of Chippewa Indians, Michigan; Band of the Minnesota Chippewa Tribe, • Pursuant to 25 U.S.C. 3001(9), the Sokaogon Chippewa Community, Minnesota; Ho-Chunk Nation of human remains described in this notice Wisconsin; St. Croix Chippewa Indians Wisconsin; Kickapoo Traditional Tribe represent the physical remains of 15 of Wisconsin; Turtle Mountain Band of of Texas; Kickapoo Tribe of Indians of individuals of Native American Chippewa Indians of North Dakota; the Kickapoo Reservation in Kansas; ancestry. White Earth Band of Minnesota Kickapoo Tribe of Oklahoma; Lac • Pursuant to 25 U.S.C. 3001(2), a Chippewa Tribe, Minnesota (hereinafter Courte Oreilles Band of Lake Superior relationship of shared group identity referred to as ‘‘The Aboriginal Land Chippewa Indians of Wisconsin; Lac du cannot be reasonably traced between the Tribes’’). Flambeau Band of Lake Superior Native American human remains and • Pursuant to 43 CFR 10.11(c)(1), the Chippewa Indians of the Lac du any present-day Indian tribe. Flambeau Reservation of Wisconsin; • According to final judgments of the disposition of the human remains may Leech Lake Band of the Minnesota Indian Claims Commission or the Court be to The Aboriginal Land Tribes. Chippewa Tribe, Minnesota; of Federal Claims, Treaties, Acts of Additional Requestors and Disposition Menominee Indian Tribe of Wisconsin; Congress, or Executive Orders, the land Miami Tribe of Oklahoma; Mille Lacs from which the Native American human Representatives of any Indian tribe or Band of the Minnesota Chippewa Tribe, remains were removed is the aboriginal Native Hawaiian organization not Minnesota; Oneida Nation (previously land of the Bad River Band of the Lake identified in this notice that wish to listed as the Oneida Tribe of Indians of Superior Tribe of Chippewa Indians of request transfer of control of these Wisconsin); Ottawa Tribe of Oklahoma; the Bad River Reservation, Wisconsin; human remains should submit a written Peoria Tribe of Indians of Oklahoma; Bay Mills Indian Community, Michigan; request with information in support of Prairie Band Potawatomi Nation Bois Forte Band (Nett Lake) of the the request to Patricia Capone, Museum (previously listed as the Prairie Band of Minnesota Chippewa Tribe, Minnesota; Curator and Director of Research and Potawatomi Nation, Kansas); Red Cliff Chippewa Cree Indians of the Rocky Repatriation, Peabody Museum of Band of Lake Superior Chippewa Boy’s Reservation, Montana (previously Archaeology and Ethnology, Harvard Indians of Wisconsin; Red Lake Band of listed as the Chippewa-Cree Indians of University, 11 Divinity Avenue, Chippewa Indians, Minnesota; Sac & the Rocky Boy’s Reservation, Montana); Cambridge, MA 02138, telephone (617) Fox Nation of Missouri in Kansas and Citizen Potawatomi Nation, Oklahoma; 496–3702, email pcapone@ Nebraska; Sac & Fox Nation, Oklahoma; Fond du Lac Band of the Minnesota fas.harvard.edu by November 2, 2016. Sac & Fox Tribe of the Mississippi in Chippewa Tribe, Minnesota; Forest After that date, if no additional Iowa; Seneca Nation of Indians County Potawatomi Community, requestors have come forward, transfer (previously listed as the Seneca Nation Wisconsin; Grand Portage Band of the of control of the human remains to The of New York); Seneca-Cayuga Nation Minnesota Chippewa Tribe, Minnesota; Aboriginal Land Tribes may proceed. (previously listed as the Seneca-Cayuga Grand Traverse Band of Ottawa and Tribe of Oklahoma); Shawnee Tribe; Chippewa Indians, Michigan; The Peabody Museum of Archaeology Sokaogon Chippewa Community, Hannahville Indian Community, and Ethnology is responsible for Wisconsin; St. Croix Chippewa Indians Michigan; Keweenaw Bay Indian notifying The Invited and Consulted of Wisconsin; Stockbridge Munsee Community, Michigan; Lac Courte Tribes that this notice has been Community, Wisconsin; Tonawanda Oreilles Band of Lake Superior published. Band of Seneca (previously listed as the Chippewa Indians of Wisconsin; Lac du Dated: September 19, 2016. Tonawanda Band of Seneca Indians of Flambeau Band of Lake Superior New York); Turtle Mountain Band of Chippewa Indians of the Lac du Melanie O’Brien, Chippewa Indians of North Dakota; Flambeau Reservation of Wisconsin; Lac Manager, National NAGPRA Program. White Earth Band of Minnesota Vieux Desert Band of Lake Superior [FR Doc. 2016–23807 Filed 9–30–16; 8:45 am] Chippewa Tribe, Minnesota; and the Chippewa Indians of Michigan; Leech BILLING CODE 4312–52–P
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DEPARTMENT OF THE INTERIOR The determinations in this notice are Wisconsin); Ottawa Tribe of Oklahoma; the sole responsibility of the museum, Peoria Tribe of Indians of Oklahoma; National Park Service institution, or Federal agency that has Prairie Band Potawatomi Nation [NPS–WASO–NAGPRA–22018; control of the Native American human (previously listed as the Prairie Band of PPWOCRADN0–PCU00RP14.R50000] remains. The National Park Service is Potawatomi Nation, Kansas); Red Cliff not responsible for the determinations Band of Lake Superior Chippewa Notice of Inventory Completion: in this notice. Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Sac & Peabody Museum of Archaeology and Consultation Ethnology, Harvard University, Fox Nation of Missouri in Kansas and Cambridge, MA A detailed assessment of the human Nebraska; Sac & Fox Nation, Oklahoma; remains was made by the Peabody Sac & Fox Tribe of the Mississippi in AGENCY: National Park Service, Interior. Museum of Archaeology and Ethnology Iowa; Seneca Nation of Indians ACTION: Notice. professional staff in consultation with (previously listed as the Seneca Nation representatives of Bay Mills Indian of Indians, New York); Seneca-Cayuga SUMMARY: The Peabody Museum of Community, Michigan; Grand Traverse Nation (previously listed as the Seneca- Archaeology and Ethnology has Band of Ottawa and Chippewa Indians, Cayuga Tribe of Oklahoma); Shawnee completed an inventory of human Michigan; Hannahville Indian Tribe; Sokaogon Chippewa Community, remains in consultation with the Community, Michigan; Keweenaw Bay Wisconsin; St. Croix Chippewa Indians appropriate Indian tribes or Native Indian Community, Michigan; Lac of Wisconsin; Stockbridge Munsee Hawaiian organizations, and has Vieux Desert Band of Lake Superior Community, Wisconsin; Tonawanda determined that there is no cultural Chippewa Indians of Michigan; Little Band of Seneca (previously listed as the affiliation between the human remains River Band of Ottawa Indians, Tonawanda Band of Seneca of New and any present-day Indian tribes or Michigan; Little Traverse Bay Bands of York); Turtle Mountain Band of Native Hawaiian organizations. Odawa Indians, Michigan; Match-e-be- Chippewa Indians of North Dakota; Representatives of any Indian tribe or nash-she-wish Band of Pottawatomi White Earth Band of Minnesota Native Hawaiian organization not Indians of Michigan; Nottawaseppi Chippewa Tribe, Minnesota; and the identified in this notice that wish to Huron Band of the Potawatomi, Wyandotte Nation (hereinafter referred request transfer of control of these Michigan (previously listed as the to as ‘‘The Invited and Consulted human remains should submit a written Huron Potawatomi, Inc.); Pokagon Band Tribes’’). request to the Peabody Museum of of Potawatomi Indians, Michigan and Archaeology and Ethnology. If no Indiana; Saginaw Chippewa Indian History and Description of the Remains additional requestors come forward, Tribe of Michigan; and Sault Ste. Marie At an unknown date, human remains transfer of control of the human remains Tribe of Chippewa Indians, Michigan. representing, at minimum, 6 individuals to the Indian tribes or Native Hawaiian Additional requests for consultation were removed from the River Rouge organizations stated in this notice may were sent to the Absentee-Shawnee Mound Group in Wayne County, MI by proceed. Tribe of Indians of Oklahoma; Bad River Henry Gilman. They were donated to DATES: Representatives of any Indian Band of the Lake Superior Tribe of the Peabody Museum by Mr. Gilman in tribe or Native Hawaiian organization Chippewa Indians of the Bad River 1869. No known individuals were not identified in this notice that wish to Reservation, Wisconsin; Bois Forte Band identified. request transfer of control of these (Nett Lake) of the Minnesota Chippewa At an unknown date, human remains human remains should submit a written Tribe, Minnesota; Chippewa Cree representing, at minimum, 1 individual request with information in support of Indians of the Rocky Boy’s Reservation, were removed from the River Rouge the request to the Peabody Museum of Montana (previously listed as the Mound Group in Wayne County, MI by Archaeology and Ethnology at the Chippewa-Cree Indians of the Rocky a Mr. Arbogast. They were donated to address in this notice by November 2, Boy’s Reservation, Montana); Citizen the Peabody Museum by Henry Gilman 2016. Potawatomi Nation, Oklahoma; in 1869. No known individuals were Delaware Nation, Oklahoma; Delaware identified. ADDRESSES: Patricia Capone, Museum Tribe of Indians; Fond du Lac Band of At an unknown date, human remains Curator and Director of Research and the Minnesota Chippewa Tribe, representing, at minimum, 11 Repatriation, Peabody Museum of Minnesota; Forest County Potawatomi individuals were removed from the Archaeology and Ethnology, Harvard Community, Wisconsin; Grand Portage River Rouge Mound Group in Wayne University, 11 Divinity Avenue, Band of the Minnesota Chippewa Tribe, County, MI by Henry Gilman. They Cambridge, MA 02138, telephone (617) Minnesota; Ho-Chunk Nation of were purchased from an unknown 496–3702, email pcapone@ Wisconsin; Kickapoo Traditional Tribe individual in 1872. No known fas.harvard.edu. of Texas; Kickapoo Tribe of Indians of individuals were identified. SUPPLEMENTARY INFORMATION: Notice is the Kickapoo Reservation in Kansas; At an unknown date, human remains here given in accordance with the Kickapoo Tribe of Oklahoma; Lac representing, at minimum, 8 individuals Native American Graves Protection and Courte Oreilles Band of Lake Superior were removed from the River Rouge Repatriation Act (NAGPRA), 25 U.S.C. Chippewa Indians of Wisconsin; Lac du Mound Group in Wayne County, MI by 3003, of the completion of an inventory Flambeau Band of Lake Superior a Henry Gilman. They were donated to of human remains under the control of Chippewa Indians of the Lac du the Peabody Museum by Mr. Gilman in the Peabody Museum of Archaeology Flambeau Reservation of Wisconsin; 1873. No known individuals were and Ethnology, Harvard University, Leech Lake Band of the Minnesota identified. Cambridge, MA. The human remains Chippewa Tribe, Minnesota; At an unknown date, human remains were removed from Wayne County, MI. Menominee Indian Tribe of Wisconsin; representing, at minimum, 1 individual This notice is published as part of the Miami Tribe of Oklahoma; Mille Lacs were removed from the River Rouge National Park Service’s administrative Band of the Minnesota Chippewa Tribe, Mound Group in Wayne County, MI by responsibilities under NAGPRA, 25 Minnesota; Oneida Nation (previously an unknown individual. They were U.S.C. 3003(d)(3) and 43 CFR 10.11(d). listed as the Oneida Tribe of Indians of donated to the Peabody Museum by
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Bela Hubbard in 1885. No known Potawatomi Indians, Michigan and whether revocation of the antidumping individuals were identified. Indiana; Prairie Band of Potawatomi duty order on pure magnesium from Nation, Kansas; Red Cliff Band of Lake China would be likely to lead to Determinations Made by the Peabody Superior Chippewa Indians of continuation or recurrence of material Museum of Archaeology and Ethnology Wisconsin; Red Lake Band of Chippewa injury. Pursuant to the Act, interested Officials of the Peabody Museum of Indians, Minnesota; Saginaw Chippewa parties are requested to respond to this Archaeology and Ethnology have Indian Tribe of Michigan; Sault Ste. notice by submitting the information determined that: Marie Tribe of Chippewa Indians, specified below to the Commission. • Pursuant to 25 U.S.C. 3001(9), the Michigan; Sokaogon Chippewa DATES: Effective October 3, 2016. To be human remains described in this notice Community, Wisconsin; St. Croix assured of consideration, the deadline are Native American based on Chippewa Indians of Wisconsin; Turtle for responses is November 2, 2016. osteological examination, museum Mountain Band of Chippewa Indians of Comments on the adequacy of responses records, and/or archeological context. North Dakota; White Earth Band of may be filed with the Commission • Pursuant to 25 U.S.C. 3001(9), the Minnesota Chippewa Tribe, Minnesota; December 15, 2016. human remains described in this notice and Wyandotte Nation, Oklahoma represent the physical remains of 27 FOR FURTHER INFORMATION CONTACT: (hereinafter referred to as ‘‘The individuals of Native American Mary Messer (202–205–3193), Office of Aboriginal Land Tribes’’). Investigations, U.S. International Trade ancestry. • Pursuant to 43 CFR 10.11(c)(1), the • Pursuant to 25 U.S.C. 3001(2), a Commission, 500 E Street SW., disposition of the human remains may relationship of shared group identity Washington, DC 20436. Hearing- be The Aboriginal Land Tribes. cannot be reasonably traced between the impaired persons can obtain Native American human remains and Additional Requestors and Disposition information on this matter by contacting the Commission’s TDD terminal on 202– any present-day Indian tribe. Representatives of any Indian tribe or • According to final judgments of the 205–1810. Persons with mobility Native Hawaiian organization not Indian Claims Commission or the Court impairments who will need special identified in this notice that wish to of Federal Claims, Treaties, Acts of assistance in gaining access to the request transfer of control of these Congress, or Executive Orders, the land Commission should contact the Office from which the Native American human human remains should submit a written of the Secretary at 202–205–2000. remains were removed is the aboriginal request with information in support of General information concerning the land of the Bad River Band of the Lake the request to Patricia Capone, Museum Commission may also be obtained by Superior Tribe of Chippewa Indians of Curator and Director of Research and accessing its internet server (https:// the Bad River Reservation, Wisconsin; Repatriation, Peabody Museum of www.usitc.gov). The public record for Bay Mills Indian Community, Michigan; Archaeology and Ethnology, Harvard this proceeding may be viewed on the Bois Forte Band (Nett Lake) of the University, 11 Divinity Avenue, Commission’s electronic docket (EDIS) Minnesota Chippewa Tribe, Minnesota; Cambridge, MA 02138, telephone (617) at https://edis.usitc.gov. 496–3702, email pcapone@ Chippewa Cree Indians of the Rocky SUPPLEMENTARY INFORMATION: Boy’s Reservation, Montana (previously fas.harvard.edu by November 2, 2016. Background.—On May 12, 1995, the listed as the Chippewa-Cree Indians of After that date, if no additional Department of Commerce issued an the Rocky Boy’s Reservation, Montana); requestors have come forward, transfer antidumping duty order on imports of Citizen Potawatomi Nation, Oklahoma; of control of the human remains to The pure magnesium from China (60 FR Fond du Lac Band of the Minnesota Aboriginal Land Tribes may proceed. 25691). Following first five-year reviews Chippewa Tribe, Minnesota; Forest The Peabody Museum of Archaeology by Commerce and the Commission, County Potawatomi Community, and Ethnology is responsible for effective October 27, 2000, Commerce Wisconsin; Grand Portage Band of the notifying The Invited and Consulted issued a continuation of the Minnesota Chippewa Tribe, Minnesota; Tribes that this notice has been antidumping duty order on imports of Grand Traverse Band of Ottawa and published. pure magnesium from China (65 FR Chippewa Indians, Michigan; Dated: September 19, 2016. 64422). Following second five-year Hannahville Indian Community, Melanie O’Brien, reviews by Commerce and the Michigan; Keweenaw Bay Indian Manager, National NAGPRA Program. Commission, effective July 10, 2006, Community, Michigan; Lac Courte [FR Doc. 2016–23813 Filed 9–30–16; 8:45 am] Commerce issued a continuation of the Oreilles Band of Lake Superior BILLING CODE 4312–52–P antidumping duty order on imports of Chippewa Indians of Wisconsin; Lac du pure magnesium from China (71 FR Flambeau Band of Lake Superior 38860). Following the third five-year Chippewa Indians of the Lac du INTERNATIONAL TRADE reviews by Commerce and the Flambeau Reservation of Wisconsin; Lac COMMISSION Commission, effective November 22, Vieux Desert Band of Lake Superior 2011, Commerce issued a continuation Chippewa Indians of Michigan; Leech [Investigation No. 731–TA–696 (Fourth of the antidumping duty order on Lake Band of the Minnesota Chippewa Review)] imports of pure magnesium from China Tribe, Minnesota; Little River Band of (76 FR 72172). The Commission is now Pure Magnesium From China; Ottawa Indians, Michigan; Little conducting a fourth review pursuant to Institution of a Five-Year Review Traverse Bay Bands of Odawa Indians; section 751(c) of the Act, as amended Match-E-Be-Nash-She-Wish Band of AGENCY: United States International (19 U.S.C. 1675(c)), to determine Pottawatomi Indians of Michigan; Mille Trade Commission. whether revocation of the order would Lacs Band of the Minnesota Chippewa ACTION: Notice. be likely to lead to continuation or Tribe, Minnesota; Nottawaseppi Huron recurrence of material injury to the Band of the Potawatomi, Michigan SUMMARY: The Commission hereby gives domestic industry within a reasonably (previously listed as the Huron notice that it has instituted a review foreseeable time. Provisions concerning Potawatomi, Inc.); Ottawa Tribe of pursuant to the Tariff Act of 1930 (‘‘the the conduct of this proceeding may be Oklahoma; Pokagon Band of Act’’), as amended, to determine found in the Commission’s Rules of
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Practice and Procedure at 19 CFR parts off-spec pure magnesium 1 and (2) pure importing the Subject Merchandise into 201, subparts A and B and 19 CFR part and alloy magnesium, including the United States from a foreign 207, subparts A and F. The Commission primary and secondary magnesium, and manufacturer or through its selling will assess the adequacy of interested magnesium in ingot and granular form. agent. party responses to this notice of (4) The Domestic Industry is the U.S. Participation in the proceeding and institution to determine whether to producers as a whole of the Domestic public service list.—Persons, including conduct a full review or an expedited Like Product, or those producers whose industrial users of the Subject review. The Commission’s collective output of the Domestic Like Merchandise and, if the merchandise is determination in any expedited review Product constitutes a major proportion sold at the retail level, representative will be based on the facts available, of the total domestic production of the consumer organizations, wishing to which may include information product. In the original determination participate in the proceeding as parties provided in response to this notice. and the first five-year review must file an entry of appearance with Definitions.—The following determination, the Commission defined the Secretary to the Commission, as provided in section 201.11(b)(4) of the definitions apply to this review: the Domestic Industry as consisting of all domestic producers of pure Commission’s rules, no later than 21 (1) Subject Merchandise is the class or magnesium. In the second five-year days after publication of this notice in kind of merchandise that is within the review, those Commissioners who the Federal Register. The Secretary will scope of the five-year review, as defined defined the Domestic Like Product as maintain a public service list containing by the Department of Commerce. including pure and alloy magnesium the names and addresses of all persons, (2) The Subject Country in this review defined the Domestic Industry as or their representatives, who are parties is China. consisting of the domestic producers of to the proceeding. (3) The Domestic Like Product is the pure and alloy magnesium, including Former Commission employees who domestically produced product or primary and secondary magnesium, and are seeking to appear in Commission products which are like, or in the magnesium in ingot and granular form, five-year reviews are advised that they absence of like, most similar in including grinders. Those may appear in a review even if they characteristics and uses with, the Commissioners who found pure and participated personally and Subject Merchandise. In the original alloy magnesium to be separate substantially in the corresponding determinations underlying this review, Domestic Like Products defined the underlying original investigation or an the Commission found pure and alloy Domestic Industry producing pure earlier review of the same underlying magnesium to be separate Domestic Like magnesium as consisting of the sole investigation. The Commission’s Products. In the first five-year review of domestic producer of pure magnesium designated agency ethics official has this order, the Commission continued to at that time, U.S. Magnesium. In the advised that a five-year review is not the same particular matter as the underlying define the Domestic Like Product as third five-year review of this order, the original investigation, and a five-year pure magnesium. In the second five-year Commission defined the Domestic review is not the same particular matter review of this order, the Commission Industry as consisting of all domestic as an earlier review of the same was evenly divided on the question of producers of pure and alloy magnesium, underlying investigation for purposes of whether pure and alloy magnesium including primary and secondary 18 U.S.C. 207, the post employment were one or two Domestic Like magnesium, and magnesium in ingot statute for Federal employees, and Products. The three Commissioners that and granular form.2 For purposes of Commission rule 201.15(b) (19 CFR found a single Domestic Like Product responding to the items in this notice, 201.15(b)), 79 FR 3246 (Jan. 17, 2014), also found that primary and secondary please provide the requested information separately for the following 73 FR 24609 (May 5, 2008). magnesium, and cast and granular Consequently, former employees are not magnesium, were part of a single two Domestic Industry definitions: (1) All producers of pure magnesium ingot, required to seek Commission approval domestic like product, i.e., they to appear in a review under Commission expanded the domestic like product to including off-spec pure magnesium and (2) all producers of pure and alloy rule 19 CFR 201.15, even if the encompass secondary magnesium and corresponding underlying original granular magnesium. For the other three magnesium, including primary and secondary magnesium, and magnesium investigation or an earlier review of the Commissioners that found two Domestic same underlying investigation was Like Products, the question of whether in ingot and granular form. (5) An Importer is any person or firm pending when they were Commission to include secondary magnesium in the employees. For further ethics advice on like product affected only the alloy engaged, either directly or through a parent company or subsidiary, in this matter, contact Carol McCue magnesium like product, and they Verratti, Deputy Agency Ethics Official, expanded that Domestic Like Product to at 202–205–3088. include secondary magnesium but 1 Off-spec pure magnesium is magnesium containing between 50 percent and 99.8 percent Limited disclosure of business declined to expand the Domestic Like primary magnesium, by weight, that does not proprietary information (BPI) under an Product to encompass granular conform to ASTM specifications for alloy administrative protective order (APO) magnesium. In the third five-year magnesium. Off-spec pure magnesium is pure and APO service list.—Pursuant to review of this order, the Commission primary magnesium containing magnesium scrap, secondary magnesium, oxidized magnesium, or section 207.7(a) of the Commission’s defined the Domestic Like Product as impurities (whether or not intentionally added) that rules, the Secretary will make BPI consisting of pure and alloy magnesium, cause the primary magnesium content to fall below submitted in this proceeding available including primary and secondary 99.8 percent by weight. It generally does not to authorized applicants under the APO magnesium and cast and granular contain, individually or in combination, 1.5 percent or more, by weight, of the following alloying issued in the proceeding, provided that magnesium. For purposes of responding elements: aluminum, manganese, zinc, silicon, the application is made no later than 21 to the items in this notice, please thorium, zirconium, and rare earths. days after publication of this notice in provide the requested information 2 At that time, 10 producers of the Domestic Like the Federal Register. Authorized separately for the following two Product were identified: U.S. Magnesium, MagPro, AMACOR, MagReTech, Rossborough, ESM Group, applicants must represent interested Domestic Like Product definitions: (1) Hart Metals, Reade Advanced Materials, Meridian parties, as defined in 19 U.S.C. 1677(9), All pure magnesium ingot, including Technologies, and Spartan. who are parties to the proceeding. A
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separate service list will be maintained No response to this request for association, identify the firms in which by the Secretary for those parties information is required if a currently your workers are employed or which are authorized to receive BPI under the valid Office of Management and Budget members of your association. APO. (OMB) number is not displayed; the (3) A statement indicating whether Certification.—Pursuant to section OMB number is 3117 0016/USITC No. your firm/entity is willing to participate 207.3 of the Commission’s rules, any 16–5–368, expiration date June 30, in this proceeding by providing person submitting information to the 2017. Public reporting burden for the information requested by the Commission in connection with this request is estimated to average 15 hours Commission. proceeding must certify that the per response. Please send comments (4) A statement of the likely effects of information is accurate and complete to regarding the accuracy of this burden the revocation of the antidumping duty the best of the submitter’s knowledge. In estimate to the Office of Investigations, order on the Domestic Industry in making the certification, the submitter U.S. International Trade Commission, general and/or your firm/entity will acknowledge that information 500 E Street SW., Washington, DC specifically. In your response, please submitted in response to this request for 20436. discuss the various factors specified in information and throughout this Inability to provide requested section 752(a) of the Act (19 U.S.C. proceeding or other proceeding may be information.—Pursuant to section 1675a(a)) including the likely volume of disclosed to and used: (i) By the 207.61(c) of the Commission’s rules, any subject imports, likely price effects of Commission, its employees and Offices, interested party that cannot furnish the subject imports, and likely impact of and contract personnel (a) for information requested by this notice in imports of Subject Merchandise on the developing or maintaining the records the requested form and manner shall Domestic Industry. of this or a related proceeding, or (b) in notify the Commission at the earliest (5) A list of all known and currently internal investigations, audits, reviews, possible time, provide a full explanation operating U.S. producers of the and evaluations relating to the of why it cannot provide the requested Domestic Like Product. Identify any programs, personnel, and operations of information, and indicate alternative known related parties and the nature of the Commission including under 5 forms in which it can provide the relationship as defined in section U.S.C. Appendix 3; or (ii) by U.S. equivalent information. If an interested 771(4)(B) of the Act (19 U.S.C. government employees and contract party does not provide this notification 1677(4)(B)). (6) A list of all known and currently personnel, solely for cybersecurity (or the Commission finds the explanation provided in the notification operating U.S. importers of the Subject purposes. All contract personnel will inadequate) and fails to provide a Merchandise and producers of the sign appropriate nondisclosure complete response to this notice, the Subject Merchandise in the Subject agreements. Commission may take an adverse Country that currently export or have Written submissions.—Pursuant to inference against the party pursuant to exported Subject Merchandise to the section 207.61 of the Commission’s section 776(b) of the Act (19 U.S.C. United States or other countries after rules, each interested party response to 1677e(b)) in making its determination in 2010. this notice must provide the information the review. (7) A list of 3–5 leading purchasers in specified below. The deadline for filing Information to be Provided in the U.S. market for the Domestic Like such responses is November 2, 2016. Response to This Notice of Institution: Product and the Subject Merchandise Pursuant to section 207.62(b) of the Please provide the requested (including street address, World Wide Commission’s rules, eligible parties (as information separately for each of the Web address, and the name, telephone specified in Commission rule following Domestic Like Product, number, fax number, and Email address 207.62(b)(1)) may also file comments definitions: (1) All pure magnesium of a responsible official at each firm). concerning the adequacy of responses to ingot, including off-spec pure (8) A list of known sources of the notice of institution and whether the magnesium and (2) pure and alloy information on national or regional Commission should conduct an magnesium, including primary and prices for the Domestic Like Product or expedited or full review. The deadline secondary magnesium, and magnesium the Subject Merchandise in the U.S. or for filing such comments is December in ingot and granular form. As used other markets. 15, 2016. All written submissions must below, the term ‘‘firm’’ includes any (9) If you are a U.S. producer of the conform with the provisions of section related firms. Domestic Like Product, provide the 201.8 of the Commission’s rules; any (1) The name and address of your firm following information on your firm’s submissions that contain BPI must also or entity (including World Wide Web operations on that product during conform with the requirements of address) and name, telephone number, calendar year 2015, except as noted sections 201.6, 207.3, and 207.7 of the fax number, and Email address of the (report quantity data in metric tons and Commission’s rules. The Commission’s certifying official. value data in U.S. dollars, f.o.b. plant). Handbook on E-Filing, available on the (2) A statement indicating whether If you are a union/worker group or Commission’s Web site at https:// your firm/entity is an interested party trade/business association, provide the edis.usitc.gov, elaborates upon the under 19 U.S.C. 1677(9) and if so, how, information, on an aggregate basis, for Commission’s rules with respect to including whether your firm/entity is a the firms in which your workers are electronic filing. Also, in accordance U.S. producer of the Domestic Like employed/which are members of your with sections 201.16(c) and 207.3 of the Product, a U.S. union or worker group, association. Commission’s rules, each document a U.S. importer of the Subject (a) Production (quantity) and, if filed by a party to the proceeding must Merchandise, a foreign producer or known, an estimate of the percentage of be served on all other parties to the exporter of the Subject Merchandise, a total U.S. production of the Domestic proceeding (as identified by either the U.S. or foreign trade or business Like Product accounted for by your public or APO service list as association (a majority of whose firm’s(s’) production; appropriate), and a certificate of service members are interested parties under (b) Capacity (quantity) of your firm to must accompany the document (if you the statute), or another interested party produce the Domestic Like Product (i.e., are not a party to the proceeding you do (including an explanation). If you are a the level of production that your not need to serve your response). union/worker group or trade/business establishment(s) could reasonably have
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expected to attain during the year, the information, on an aggregate basis, pursuant to section 207.61 of the assuming normal operating conditions for the firms which are members of your Commission’s rules. (using equipment and machinery in association. By order of the Commission. place and ready to operate), normal (a) Production (quantity) and, if Issued: September 27, 2016. operating levels (hours per week/weeks known, an estimate of the percentage of Katherine M. Hiner, per year), time for downtime, total production of Subject Merchandise Acting Supervisory Attorney. maintenance, repair, and cleanup, and a in the Subject Country accounted for by [FR Doc. 2016–23717 Filed 9–30–16; 8:45 am] typical or representative product mix); your firm’s(s’) production; (c) the quantity and value of U.S. (b) Capacity (quantity) of your firm(s) BILLING CODE 7020–02–P commercial shipments of the Domestic to produce the Subject Merchandise in Like Product produced in your U.S. the Subject Country (i.e., the level of plant(s); INTERNATIONAL TRADE production that your establishment(s) COMMISSION (d) the quantity and value of U.S. could reasonably have expected to internal consumption/company attain during the year, assuming normal [Investigation No. 731–TA–1091 (Second transfers of the Domestic Like Product operating conditions (using equipment Review)] produced in your U.S. plant(s); and and machinery in place and ready to Artists’ Canvas From China; Institution (e) the value of (i) net sales, (ii) cost operate), normal operating levels (hours of a Five-Year Review of goods sold (COGS), (iii) gross profit, per week/weeks per year), time for (iv) selling, general and administrative downtime, maintenance, repair, and AGENCY: United States International (SG&A) expenses, and (v) operating cleanup, and a typical or representative Trade Commission. income of the Domestic Like Product product mix); and produced in your U.S. plant(s) (include ACTION: Notice. (c) the quantity and value of your both U.S. and export commercial sales, firm’s(s’) exports to the United States of SUMMARY: The Commission hereby gives internal consumption, and company Subject Merchandise and, if known, an notice that it has instituted a review transfers) for your most recently estimate of the percentage of total pursuant to the Tariff Act of 1930 (‘‘the completed fiscal year (identify the date exports to the United States of Subject Act’’), as amended, to determine on which your fiscal year ends). Merchandise from the Subject Country whether revocation of the antidumping (10) If you are a U.S. importer or a accounted for by your firm’s(s’) exports. duty order on artists’ canvas from China trade/business association of U.S. (12) Identify significant changes, if would be likely to lead to continuation importers of the Subject Merchandise or recurrence of material injury. from the Subject Country, provide the any, in the supply and demand conditions or business cycle for the Pursuant to the Act, interested parties following information on your firm’s(s’) are requested to respond to this notice operations on that product during Domestic Like Product that have occurred in the United States or in the by submitting the information specified calendar year 2015 (report quantity data below to the Commission. in metric tons and value data in U.S. market for the Subject Merchandise in DATES: Effective October 3, 2016. To be dollars). If you are a trade/business the Subject Country after 2010, and assured of consideration, the deadline association, provide the information, on significant changes, if any, that are for responses is November 2, 2016. an aggregate basis, for the firms which likely to occur within a reasonably Comments on the adequacy of responses are members of your association. foreseeable time. Supply conditions to (a) The quantity and value (landed, consider include technology; may be filed with the Commission duty-paid but not including production methods; development December 15, 2016. antidumping duties) of U.S. imports efforts; ability to increase production FOR FURTHER INFORMATION CONTACT: and, if known, an estimate of the (including the shift of production Mary Messer (202–205–3193), Office of percentage of total U.S. imports of facilities used for other products and the Investigations, U.S. International Trade Subject Merchandise from the Subject use, cost, or availability of major inputs Commission, 500 E Street SW., Country accounted for by your firm’s(s’) into production); and factors related to Washington, DC 20436. Hearing- imports; the ability to shift supply among impaired persons can obtain (b) the quantity and value (f.o.b. U.S. different national markets (including information on this matter by contacting port, including antidumping duties) of barriers to importation in foreign the Commission’s TDD terminal on 202– U.S. commercial shipments of Subject markets or changes in market demand 205–1810. Persons with mobility Merchandise imported from the Subject abroad). Demand conditions to consider impairments who will need special Country; and include end uses and applications; the assistance in gaining access to the (c) the quantity and value (f.o.b. U.S. existence and availability of substitute Commission should contact the Office port, including antidumping duties) of products; and the level of competition of the Secretary at 202–205–2000. U.S. internal consumption/company among the Domestic Like Product General information concerning the transfers of Subject Merchandise produced in the United States, Subject Commission may also be obtained by imported from the Subject Country. Merchandise produced in the Subject accessing its internet server (https:// (11) If you are a producer, an exporter, Country, and such merchandise from www.usitc.gov). The public record for or a trade/business association of other countries. this proceeding may be viewed on the producers or exporters of the Subject (13) (OPTIONAL) A statement of Commission’s electronic docket (EDIS) Merchandise in the Subject Country, whether you agree with the above at https://edis.usitc.gov. provide the following information on definitions of the Domestic Like Product SUPPLEMENTARY INFORMATION: your firm’s(s’) operations on that and Domestic Industry; if you disagree Background.—On June 1, 2006, the product during calendar year 2015 with either or both of these definitions, Department of Commerce issued an (report quantity data in metric tons and please explain why and provide antidumping duty order on imports of value data in U.S. dollars, landed and alternative definitions. artists’ canvas from China (71 FR duty-paid at the U.S. port but not Authority: This proceeding is being 31154). Following the first five-year including antidumping duties). If you conducted under authority of title VII of the reviews by Commerce and the are a trade/business association, provide Tariff Act of 1930; this notice is published Commission, effective November 9,
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2011, Commerce issued a continuation manufacturer or through its selling authorized to receive BPI under the of the antidumping duty order on agent. APO. imports of artists’ canvas from China (76 Participation in the proceeding and Certification.—Pursuant to section FR 69704). The Commission is now public service list.—Persons, including 207.3 of the Commission’s rules, any conducting a second review pursuant to industrial users of the Subject person submitting information to the section 751(c) of the Act, as amended Merchandise and, if the merchandise is Commission in connection with this (19 U.S.C. 1675(c)), to determine sold at the retail level, representative proceeding must certify that the whether revocation of the order would consumer organizations, wishing to information is accurate and complete to be likely to lead to continuation or participate in the proceeding as parties the best of the submitter’s knowledge. In recurrence of material injury to the must file an entry of appearance with making the certification, the submitter domestic industry within a reasonably the Secretary to the Commission, as will acknowledge that information foreseeable time. Provisions concerning provided in section 201.11(b)(4) of the submitted in response to this request for the conduct of this proceeding may be Commission’s rules, no later than 21 information and throughout this found in the Commission’s Rules of days after publication of this notice in proceeding or other proceeding may be Practice and Procedure at 19 CFR parts the Federal Register. The Secretary will disclosed to and used: (i) By the 201, subparts A and B and 19 CFR part maintain a public service list containing Commission, its employees and Offices, 207, subparts A and F. The Commission the names and addresses of all persons, and contract personnel (a) for will assess the adequacy of interested or their representatives, who are parties developing or maintaining the records party responses to this notice of to the proceeding. of this or a related proceeding, or (b) in institution to determine whether to Former Commission employees who internal investigations, audits, reviews, conduct a full review or an expedited are seeking to appear in Commission and evaluations relating to the review. The Commission’s five-year reviews are advised that they programs, personnel, and operations of determination in any expedited review may appear in a review even if they the Commission including under 5 will be based on the facts available, participated personally and U.S.C. Appendix 3; or (ii) by U.S. which may include information substantially in the corresponding government employees and contract provided in response to this notice. underlying original investigation or an personnel, solely for cybersecurity Definitions.—The following earlier review of the same underlying purposes. All contract personnel will investigation. The Commission’s definitions apply to this review: sign appropriate nondisclosure designated agency ethics official has (1) Subject Merchandise is the class or agreements. advised that a five-year review is not the Written submissions.—Pursuant to kind of merchandise that is within the same particular matter as the underlying section 207.61 of the Commission’s scope of the five-year review, as defined original investigation, and a five-year rules, each interested party response to by the Department of Commerce. review is not the same particular matter this notice must provide the information (2) The Subject Country in this review as an earlier review of the same specified below. The deadline for filing is China. underlying investigation for purposes of such responses is November 2, 2016. (3) The Domestic Like Product is the 18 U.S.C. 207, the post employment Pursuant to section 207.62(b) of the domestically produced product or statute for Federal employees, and Commission’s rules, eligible parties (as products which are like, or in the Commission rule 201.15(b) (19 CFR specified in Commission rule absence of like, most similar in 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 207.62(b)(1)) may also file comments characteristics and uses with, the 73 FR 24609 (May 5, 2008). concerning the adequacy of responses to Subject Merchandise. In its original Consequently, former employees are not the notice of institution and whether the determination and its expedited first required to seek Commission approval Commission should conduct an five-year review determination, the to appear in a review under Commission expedited or full review. The deadline Commission found a single Domestic rule 19 CFR 201.15, even if the for filing such comments is December Like Product, all artists’ canvas, co- corresponding underlying original 15, 2016. All written submissions must extensive with Commerce’s scope investigation or an earlier review of the conform with the provisions of section definition. same underlying investigation was 201.8 of the Commission’s rules; any (4) The Domestic Industry is the U.S. pending when they were Commission submissions that contain BPI must also producers as a whole of the Domestic employees. For further ethics advice on conform with the requirements of Like Product, or those producers whose this matter, contact Carol McCue sections 201.6, 207.3, and 207.7 of the collective output of the Domestic Like Verratti, Deputy Agency Ethics Official, Commission’s rules. The Commission’s Product constitutes a major proportion at 202–205–3088. Handbook on E-Filing, available on the of the total domestic production of the Limited disclosure of business Commission’s Web site at https:// product. In its original determination proprietary information (BPI) under an edis.usitc.gov, elaborates upon the and its expedited first five-year review administrative protective order (APO) Commission’s rules with respect to determination, the Commission defined and APO service list.—Pursuant to electronic filing. Also, in accordance the Domestic Industry as all U.S. section 207.7(a) of the Commission’s with sections 201.16(c) and 207.3 of the producers of artists’ canvas, that is, the rules, the Secretary will make BPI Commission’s rules, each document producers of bulk canvas and non-print submitted in this proceeding available filed by a party to the proceeding must converters. Certain Commissioners to authorized applicants under the APO be served on all other parties to the defined the Domestic Industry issued in the proceeding, provided that proceeding (as identified by either the differently in the original determination the application is made no later than 21 public or APO service list as and the first five-year review days after publication of this notice in appropriate), and a certificate of service determination. the Federal Register. Authorized must accompany the document (if you (5) An Importer is any person or firm applicants must represent interested are not a party to the proceeding you do engaged, either directly or through a parties, as defined in 19 U.S.C. 1677(9), not need to serve your response). parent company or subsidiary, in who are parties to the proceeding. A No response to this request for importing the Subject Merchandise into separate service list will be maintained information is required if a currently the United States from a foreign by the Secretary for those parties valid Office of Management and Budget
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(OMB) number is not displayed; the specifically. In your response, please (d) the quantity and value of U.S. OMB number is 3117 0016/USITC No. discuss the various factors specified in internal consumption/company 16–5–367, expiration date June 30, section 752(a) of the Act (19 U.S.C. transfers of the Domestic Like Product 2017. Public reporting burden for the 1675a(a)) including the likely volume of produced in your U.S. plant(s); and request is estimated to average 15 hours subject imports, likely price effects of (e) the value of (i) net sales, (ii) cost per response. Please send comments subject imports, and likely impact of of goods sold (COGS), (iii) gross profit, regarding the accuracy of this burden imports of Subject Merchandise on the (iv) selling, general and administrative estimate to the Office of Investigations, Domestic Industry. (SG&A) expenses, and (v) operating U.S. International Trade Commission, (5) A list of all known and currently income of the Domestic Like Product 500 E Street SW., Washington, DC operating U.S. producers of the produced in your U.S. plant(s) (include 20436. Domestic Like Product. Identify any both U.S. and export commercial sales, Inability to provide requested known related parties and the nature of internal consumption, and company information.—Pursuant to section the relationship as defined in section transfers) for your most recently 207.61(c) of the Commission’s rules, any 771(4)(B) of the Act (19 U.S.C. completed fiscal year (identify the date interested party that cannot furnish the 1677(4)(B)). on which your fiscal year ends). information requested by this notice in (6) A list of all known and currently (10) If you are a U.S. importer or a the requested form and manner shall operating U.S. importers of the Subject trade/business association of U.S. notify the Commission at the earliest Merchandise and producers of the importers of the Subject Merchandise possible time, provide a full explanation Subject Merchandise in the Subject from the Subject Country, provide the of why it cannot provide the requested Country that currently export or have following information on your firm’s(s’) information, and indicate alternative exported Subject Merchandise to the operations on that product during forms in which it can provide United States or other countries after calendar year 2015 (report quantity data equivalent information. If an interested 2010. in square meters and value data in U.S. party does not provide this notification (7) A list of 3–5 leading purchasers in dollars). If you are a trade/business (or the Commission finds the the U.S. market for the Domestic Like association, provide the information, on explanation provided in the notification Product and the Subject Merchandise an aggregate basis, for the firms which inadequate) and fails to provide a (including street address, World Wide are members of your association. complete response to this notice, the Web address, and the name, telephone (a) The quantity and value (landed, Commission may take an adverse number, fax number, and Email address duty-paid but not including inference against the party pursuant to of a responsible official at each firm). antidumping duties) of U.S. imports section 776(b) of the Act (19 U.S.C. (8) A list of known sources of and, if known, an estimate of the 1677e(b)) in making its determination in information on national or regional percentage of total U.S. imports of the review. prices for the Domestic Like Product or Subject Merchandise from the Subject Information to be Provided in the Subject Merchandise in the U.S. or Country accounted for by your firm’s(s’) Response to This Notice of Institution: other markets. imports; As used below, the term ‘‘firm’’ includes (9) If you are a U.S. producer of the (b) the quantity and value (f.o.b. U.S. any related firms. Domestic Like Product, provide the port, including antidumping duties) of (1) The name and address of your firm following information on your firm’s U.S. commercial shipments of Subject or entity (including World Wide Web operations on that product during Merchandise imported from the Subject address) and name, telephone number, calendar year 2015, except as noted Country; and fax number, and Email address of the (report quantity data in square meters (c) the quantity and value (f.o.b. U.S. certifying official. and value data in U.S. dollars, f.o.b. port, including antidumping duties) of (2) A statement indicating whether plant). If you are a union/worker group U.S. internal consumption/company your firm/entity is an interested party or trade/business association, provide transfers of Subject Merchandise under 19 U.S.C. 1677(9) and if so, how, the information, on an aggregate basis, imported from the Subject Country. including whether your firm/entity is a for the firms in which your workers are (11) If you are a producer, an exporter, U.S. producer of the Domestic Like employed/which are members of your or a trade/business association of Product, a U.S. union or worker group, association. producers or exporters of the Subject a U.S. importer of the Subject (a) Production (quantity) and, if Merchandise in the Subject Country, Merchandise, a foreign producer or known, an estimate of the percentage of provide the following information on exporter of the Subject Merchandise, a total U.S. production of the Domestic your firm’s(s’) operations on that U.S. or foreign trade or business Like Product accounted for by your product during calendar year 2015 association (a majority of whose firm’s(s’) production; (report quantity data in square meters members are interested parties under (b) Capacity (quantity) of your firm to and value data in U.S. dollars, landed the statute), or another interested party produce the Domestic Like Product (i.e., and duty-paid at the U.S. port but not (including an explanation). If you are a the level of production that your including antidumping duties). If you union/worker group or trade/business establishment(s) could reasonably have are a trade/business association, provide association, identify the firms in which expected to attain during the year, the information, on an aggregate basis, your workers are employed or which are assuming normal operating conditions for the firms which are members of your members of your association. (using equipment and machinery in association. (3) A statement indicating whether place and ready to operate), normal (a) Production (quantity) and, if your firm/entity is willing to participate operating levels (hours per week/weeks known, an estimate of the percentage of in this proceeding by providing per year), time for downtime, total production of Subject Merchandise information requested by the maintenance, repair, and cleanup, and a in the Subject Country accounted for by Commission. typical or representative product mix); your firm’s(s’) production; (4) A statement of the likely effects of (c) the quantity and value of U.S. (b) Capacity (quantity) of your firm(s) the revocation of the antidumping duty commercial shipments of the Domestic to produce the Subject Merchandise in order on the Domestic Industry in Like Product produced in your U.S. the Subject Country (i.e., the level of general and/or your firm/entity plant(s); production that your establishment(s)
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could reasonably have expected to please explain why and provide U.S. International Trade Commission attain during the year, assuming normal alternative definitions. (202) 205–2651. operating conditions (using equipment Authority: This proceeding is being AUTHORITY: This notice is published in and machinery in place and ready to conducted under authority of title VII of the the Federal Register pursuant to the operate), normal operating levels (hours Tariff Act of 1930; this notice is published requirement of 5 U.S.C. 4314(c)(4). per week/weeks per year), time for pursuant to section 207.61 of the Hearing impaired individuals are downtime, maintenance, repair, and Commission’s rules. advised that information on this matter cleanup, and a typical or representative By order of the Commission. can be obtained by contacting our TDD product mix); and Issued: September 27, 2016. terminal on (202) 205–1810. (c) the quantity and value of your Katherine M. Hiner, By order of the Commission. firm’s(s’) exports to the United States of Acting Supervisory Attorney. Issued: September 27, 2016. Subject Merchandise and, if known, an estimate of the percentage of total [FR Doc. 2016–23718 Filed 9–30–16; 8:45 am] Katherine M. Hiner, exports to the United States of Subject BILLING CODE 7020–02–P Acting Supervisory Attorney. Merchandise from the Subject Country [FR Doc. 2016–23716 Filed 9–30–16; 8:45 am] accounted for by your firm’s(s’) exports. INTERNATIONAL TRADE BILLING CODE 7020–02–P (12) Identify significant changes, if COMMISSION any, in the supply and demand conditions or business cycle for the Notice of Appointment of Individuals DEPARTMENT OF JUSTICE Domestic Like Product that have To Serve as Members of the occurred in the United States or in the Performance Review Board Membership of the Senior Executive market for the Subject Merchandise in Service Standing Performance Review the Subject Country after 2010, and AGENCY: United States International Boards significant changes, if any, that are Trade Commission. AGENCY: Department of Justice. likely to occur within a reasonably ACTION: Appointment of Individuals to foreseeable time. Supply conditions to Serve as Members of Performance ACTION: Notice of Department of consider include technology; Review Board. Justice’s standing members of the Senior production methods; development Executive Service Performance Review efforts; ability to increase production DATES: Effective Date: September 22, Boards. (including the shift of production 2016. SUMMARY: The Chairman of the U.S. SUMMARY: Pursuant to the requirements facilities used for other products and the of 5 U.S.C. 4314(c)(4), the Department of use, cost, or availability of major inputs International Trade Commission has appointed the following individuals to Justice announces the membership of its into production); and factors related to 2016 Senior Executive Service (SES) the ability to shift supply among serve on the Commission’s Performance Review Board (PRB): Standing Performance Review Boards different national markets (including (PRBs). The purpose of a PRB is to barriers to importation in foreign Chair of the PRB: Vice Chairman David S. Johanson provide fair and impartial review of SES markets or changes in market demand performance appraisals, bonus abroad). Demand conditions to consider Vice-Chair of the PRB: Commissioner Dean A. Pinkert recommendations and pay adjustments. include end uses and applications; the The PRBs will make recommendations existence and availability of substitute Member—Kirit Amin Member—John Ascienzo regarding the final performance ratings products; and the level of competition Member—Michael Anderson to be assigned, SES bonuses and/or pay among the Domestic Like Product Member—Dominic Bianchi adjustments to be awarded. produced in the United States, Subject Member—Jonathan Coleman FOR FURTHER INFORMATION CONTACT: Merchandise produced in the Subject Member—Catherine DeFilippo Country, and such merchandise from Tammy Shelton, Acting Director, Member—James Holbein Human Resources, Justice Management other countries. Member—Margaret Macdonald Division, Department of Justice, (13) (OPTIONAL) A statement of Member—Stephen A. McLaughlin Washington, DC 20530; (202) 514–4350. whether you agree with the above Member—William Powers definitions of the Domestic Like Product Member—Lyn M. Schlitt Lee J. Lofthus, and Domestic Industry; if you disagree FOR FURTHER INFORMATION CONTACT: Eric Assistant Attorney General for with either or both of these definitions, Mozie, Director of Human Resources, Administration.
2016 FEDERAL REGISTER
Name Position title
Office of the Attorney General—OAG
WERNER, SHARON ...... CHIEF OF STAFF AND COUNSELOR TO THE ATTORNEY GENERAL. POKORNY, CAROLYN ...... DEPUTY CHIEF OF STAFF AND COUNSELOR TO THE ATTORNEY GENERAL. FRANKLIN, SHIRLETHIA ...... DEPUTY CHIEF OF STAFF AND COUNSELOR TO THE ATTORNEY GENERAL. HERWIG, PAIGE ...... COUNSELOR TO THE ATTORNEY GENERAL. CADOGAN, JAMES ...... COUNSELOR TO THE ATTORNEY GENERAL.
Office of the Deputy Attorney General—ODAG
AXELROD, MATTHEW ...... PRINCIPAL ASSOCIATE DEPUTY ATTORNEY GENERAL. CHILDS, HEATHER ...... COUNSELOR TO THE DEPUTY ATTORNEY GENERAL. CONLEY, DANIELLE ...... ASSOCIATE DEPUTY ATTORNEY GENERAL. JAIN, SAMIR ...... ASSOCIATE DEPUTY ATTORNEY GENERAL.
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2016 FEDERAL REGISTER—Continued
Name Position title
GAUHAR, TASHINA ...... ASSOCIATE DEPUTY ATTORNEY GENERAL. URIARTE, CARLOS ...... ASSOCIATE DEPUTY ATTORNEY GENERAL. BROWN, CRYSTAL ...... ASSOCIATE DEPUTY ATTORNEY GENERAL. PROBER, RAPHAEL ...... ASSOCIATE DEPUTY ATTORNEY GENERAL. BROWN LEE, ERIKA ...... CHIEF PRIVACY AND CIVIL LIBERTIES OFFICER. WINN, PETER ...... DIRECTOR, OFFICE OF PRIVACY AND CIVIL LIBERTIES. GEISE, JOHN ...... CHIEF, PROFESSIONAL MISCONDUCT REVIEW UNIT. GOLDSMITH, ANDREW ...... NATIONAL CRIMINAL DISCOVERY COORDINATOR. STEINBERG, JILL ...... ASSOCIATE DEPUTY ATTORNEY GENERAL AND NATIONAL COORDINATOR FOR CHILD EXPLOI- TATION PREVENTION AND INTERDICTION AND SENIOR COUNSEL. STEELE, BRETTE ...... DEPUTY DIRECTOR, COUNTERING VIOLENT EXTREMISM TASK FORCE (CVETF).
Office of the Associate Attorney General—OASG
BAER, WILLIAM ...... PRINCIPAL DEPUTY ASSOCIATE ATTORNEY GENERAL. COX, JAMES ...... DEPUTY ASSOCIATE ATTORNEY GENERAL. SCARLETT, PHILIPPA ...... DEPUTY ASSOCIATE ATTORNEY GENERAL. CASEY, CHRISTOPHER ...... DEPUTY ASSOCIATE ATTORNEY GENERAL. GUZMAN, JAVIER ...... DEPUTY ASSOCIATE ATTORNEY GENERAL. AGUILAR, RITA ...... DEPUTY ASSOCIATE ATTORNEY GENERAL. FOSTER, LISA ...... DIRECTOR, ACCESS TO JUSTICE.
Office of the Solicitor General—OSG
GERSHENGORN, IAN ...... PRINCIPAL DEPUTY SOLICITOR GENERAL. GORNSTEIN, IRVING ...... COUNSELOR TO THE SOLICITOR GENERAL. DREEBEN, MICHAEL R ...... DEPUTY SOLICITOR GENERAL. KNEEDLER, EDWIN S ...... DEPUTY SOLICITOR GENERAL. STEWART, MALCOLM L ...... DEPUTY SOLICITOR GENERAL.
Antitrust Division—ATR
HESSE, RENATA ...... PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL. ROSE, NANCY ...... DEPUTY ASSISTANT ATTORNEY GENERAL. ARTEAGA, JUAN ...... DEPUTY ASSISTANT ATTORNEY GENERAL. PFAFFENROTH, SONIA ...... DEPUTY ASSISTANT ATTORNEY GENERAL. SALLET, JONATHAN ...... DEPUTY ASSISTANT ATTORNEY GENERAL. SNYDER, BRENT C ...... DEPUTY ASSISTANT ATTORNEY GENERAL. ARMINGTON, ELIZABETH J ...... CHIEF, ECONOMIC REGULATORY SECTION. BRINK, PATRICIA A ...... DIRECTOR OF CIVIL ENFORCEMENT. COHEN, SCOTT ...... EXECUTIVE OFFICER. DRENNAN, RONALD ...... CHIEF, COMPETITION POLICY SECTION. FAMILANT, NORMAN ...... CHIEF, ECONOMIC LITIGATION SECTION. FOUNTAIN, DOROTHY ...... SENIOR COUNSEL AND DIRECTOR OF RISK MANAGEMENT. GREER, TRACY ...... ATTORNEY ADVISOR. HAND, EDWARD T ...... CHIEF, FOREIGN COMMERCE SECTION. HOLLAND, CAROLINE ...... CHIEF COUNSEL FOR COMPETITION POLICY AND INTERGOVERNMENTAL RELATIONS. LIMARZI, KRISTEN ...... CHIEF, APPELLATE SECTION. MUCCHETTI, PETER J ...... CHIEF, LITIGATION I SECTION. MAJURE, WILLIAM ROBERT ...... DIRECTOR OF ECONOMICS. MARTINO, JEFFREY ...... CHIEF, NEW YORK FIELD OFFICE. PETRIZZI, MARIBETH ...... CHIEF, LITIGATION II SECTION. PHELAN, LISA M ...... CHIEF, NATIONAL CRIMINAL ENFORCEMENT SECTION. POTTER, ROBERT A ...... CHIEF, LEGAL POLICY SECTION. PRICE JR., MARVIN N ...... DIRECTOR OF CRIMINAL ENFORCEMENT. SCHEELE, SCOTT A ...... CHIEF, TELECOMMUNICATIONS AND MEDIA ENFORCEMENT SECTION. SIEGEL, MARC ...... CHIEF COUNSEL, SAN FRANCISCO FIELD OFFICE. STRIMEL, MARY ...... CHIEF, WASHINGTON CRIMINAL II SECTION. VONDRAK, FRANK ...... CHIEF, CHICAGO FIELD OFFICE. WERDEN, GREGORY J ...... ECONOMIST ADVISOR.
Bureau of Alcohol, Tobacco, Firearms, and Explosives—ATF
BRANDON, THOMAS E ...... DEPUTY DIRECTOR. TURK, RONALD B ...... SPECIAL ASSISTANT TO THE DIRECTOR. SMITH, CHARLES B ...... EXECUTIVE ASSISTANT TO THE DIRECTOR. GLEYSTEEN, MICHAEL P ...... ASSISTANT DIRECTOR, FIELD OPERATIONS (PROGRAMS). KUMOR, DANIEL ...... DEPUTY ASSISTANT DIRECTOR, FIELD OPERATIONS. DIXIE, WAYNE ...... DEPUTY ASSISTANT DIRECTOR, FIELD OPERATIONS—EAST. LOMBARDO, REGINA ...... DEPUTY ASSISTANT DIRECTOR, FIELD OPERATIONS—CENTRAL. MCMULLEN, WILLIAM ...... DEPUTY ASSISTANT DIRECTOR, FIELD OPERATIONS—WEST. SWEETOW, SCOTT ...... DEPUTY DIRECTOR, TEDAC.
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2016 FEDERAL REGISTER—Continued
Name Position title
RICHARDSON, MARVIN ...... ASSISTANT DIRECTOR, ENFORCEMENT PROGRAM SERVICES. CZARNOPYS, GREGORY P ...... DEPUTY ASSISTANT DIRECTOR, FORENSIC SERVICES. BEASLEY, ROGER ...... ASSISTANT DIRECTOR, SCIENCE AND TECHNOLOGY/CIO. MCDERMOND, JAMES E ...... ASSISTANT DIRECTOR, OFFICE OF STRATEGIC INTELLIGENCE AND INFORMATION. KING, MELVIN ...... ASSISTANT DIRECTOR, OFFICE OF PROFESSIONAL RESPONSIBILITY AND SECURITY OPER- ATIONS. REID, DELANO ...... DEPUTY ASSISTANT DIRECTOR, OFFICE OF PROFESSIONAL RESPONSIBILITY AND SECURITY OPERATIONS. MICHALIC, VIVIAN B ...... ASSISTANT DIRECTOR, MANAGEMENT. RIEHL, JOSEPH ...... DEPUTY ASSISTANT DIRECTOR, MANAGEMENT. GRAHAM, ANDREW R ...... DEPUTY ASSISTANT DIRECTOR, INDUSTRY OPERATIONS. GROSS, CHARLES R ...... CHIEF COUNSEL. ROESSNER, JOEL ...... DEPUTY CHIEF COUNSEL. EPSTEIN, ERIC ...... ATTORNEY ADVISOR. MCDANIEL, MASON ...... CHIEF TECHNOLOGY OFFICER. GILBERT, CURTIS ...... DEPUTY ASSISTANT DIRECTOR, ENFORCEMENT PROGRAM AND SERVICES. CHITTUM, THOMAS ...... CHIEF, SPECIAL OPERATIONS DIVISION. DURASTANTI, JOHN ...... DEPUTY ASSISTANT DIRECTOR, OFFICE OF STRATEGIC INTELLIGENCE AND INFORMATION. SHAEFER, CHRISTOPHER ...... ASSISTANT DIRECTOR, OFFICE OF PUBLIC AND GOVERNMENTAL AFFAIRS. MILANOWSKI, JAMES ...... DEPUTY ASSISTANT DIRECTOR, OFFICE OF PUBLIC AND GOVERNMENTAL AFFAIRS. BOYKIN, LISA...... DEPUTY ASSISTANT DIRECTOR, HUMAN RESOURCES AND PROFESSIONAL DEVELOPMENT (HUMAN RESOURCES). LOWREY, STUART ...... DEPUTY ASSISTANT DIRECTOR, HUMAN RESOURCES AND PROFESSIONAL DEVELOPMENT. VIDOLI, MARINO ...... ASSISTANT DIRECTOR, HUMAN RESOURCES AND PROFESSIONAL DEVELOPMENT. GOLD, VICTORIA ...... DEPUTY ASSISTANT DIRECTOR, IT/CIO. ROBINSON, DONALD ...... SPECIAL AGENT IN CHARGE, NATIONAL CENTER FOR EXPLOSIVES TRAINING AND RESEARCH (NCETR). WALKER, CARL ...... SPECIAL AGENT IN CHARGE, ATLANTA. HYMAN, CHRISTOPHER ...... SPECIAL AGENT IN CHARGE, CHARLOTTE. MAGEE, JEFFREY ...... SPECIAL AGENT IN CHARGE, CHICAGO. TEMPLE, WILLIAM ...... SPECIAL AGENT IN CHARGE, DALLAS. CROKE, KENNETH ...... SPECIAL AGENT IN CHARGE, DENVER. SHOEMAKER, STEPHANIE ...... SPECIAL AGENT IN CHARGE, DETROIT. ELDER, ROBERT L ...... SPECIAL AGENT IN CHARGE, HOUSTON. FULTON, JEFFREY ...... SPECIAL AGENT IN CHARGE, KANSAS CITY. HARDEN, ERIC ...... SPECIAL AGENT IN CHARGE, LOS ANGELES. COOPER, JOHN ...... SPECIAL AGENT IN CHARGE, LOUISVILLE. CANINO, CARLOS ...... SPECIAL AGENT IN CHARGE, MIAMI. GERIDO, STEVE ...... SPECIAL AGENT IN CHARGE, NASHVILLE. HESTER-DAVIS, CONSTANCE D SPECIAL AGENT IN CHARGE, NEW ORLEANS. BELSKY, GEORGE ...... SPECIAL AGENT IN CHARGE, NEWARK. REBADI, ESSAM ...... SPECIAL AGENT IN CHARGE, PHILADELPHIA. ATTEBERRY, THOMAS ...... SPECIAL AGENT IN CHARGE, PHOENIX. SNYDER, JILL A ...... SPECIAL AGENT IN CHARGE, SAN FRANCISCO. DAWSON, DOUGLAS ...... SPECIAL AGENT IN CHARGE, SEATTLE. MODZELEWSKI, JAMES ...... SPECIAL AGENT IN CHARGE, ST PAUL. MCCRARY, DARYL ...... SPECIAL AGENT IN CHARGE, TAMPA. BOXLER, MICHAEL B ...... SPECIAL AGENT IN CHARGE, WASHINGTON, DC.
Bureau of Prisons—BOP
KANE, THOMAS R ...... DEPUTY DIRECTOR. JOSLIN, DANIEL M ...... ASSISTANT DIRECTOR, HUMAN RESOURCES MANAGEMENT DIVISION. GRIFFITH, CRISTINA L ...... SENIOR DEPUTY ASSISTANT DIRECTOR, HUMAN RESOURCES MANAGEMENT DIVISION. SIMPSON, GARY M ...... CHIEF EXECUTIVE OFFICER, INDUSTRIES, EDUCATION AND VOCATIONAL TRAINING DIVISION. SIBAL, PHILIP ...... SENIOR DEPUTY ASSISTANT DIRECTOR, INDUSTRIES, EDUCATION AND VOCATIONAL TRAINING DIVISION. YEICH, KENNETH ...... SENIOR DEPUTY ASSISTANT DIRECTOR, INDUSTRIES, EDUCATION AND VOCATIONAL TRAINING DIVISION. GROSS, BRADLEY T ...... ASSISTANT DIRECTOR, ADMINISTRATION DIVISION. BURNS, LONERYL C ...... SENIOR DEPUTY ASSISTANT DIRECTOR, ADMINISTRATION DIVISION. AYERS, NANCY ...... CHIEF, OFFICE OF PUBLIC AFFAIRS. GARRETT, JUDITH ...... ASSISTANT DIRECTOR, INFORMATION, POLICY AND PUBLIC AFFAIRS DIVISION. HURWITZ, HUGH J ...... SENIOR DEPUTY ASSISTANT DIRECTOR, INFORMATION, POLICY AND PUBLIC AFFAIRS DIVISION. THOMPSON, SONYA ...... SENIOR DEPUTY ASSISTANT DIRECTOR, INFORMATION, POLICY AND PUBLIC AFFAIRS DIVISION. SCHULT, DEBORAH ...... ASSISTANT DIRECTOR, HEALTH SERVICES DIVISION. HYLE, KENNETH ...... SENIOR DEPUTY GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL. KENNEY, KATHLEEN M ...... ASSISTANT DIRECTOR, OFFICE OF GENERAL COUNSEL. KENDALL, PAUL F ...... SENIOR COUNSEL, OFFICE OF GENERAL COUNSEL. RODGERS, RONALD L ...... SENIOR COUNSEL, OFFICE OF GENERAL COUNSEL. WILLS, JAMES C ...... SENIOR DEPUTY COUNSEL, OFFICE OF GENERAL COUNSEL. COSBY, JIMMY L ...... DIRECTOR, NATIONAL INSTITUTE OF CORRECTIONS.
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2016 FEDERAL REGISTER—Continued
Name Position title
BROWN JR., ROBERT M ...... SENIOR DEPUTY DIRECTOR, NATIONAL INSTITUTE OF CORRECTIONS. DUNBAR, ANGELA P ...... ASSISTANT DIRECTOR, CORRECTIONAL PROGRAMS DIVISION. FEATHER, MARION M ...... ASSISTANT DIRECTOR, RE-ENTRY SERVICES DIVISION. BUTTERFIELD, PATTI ...... SENIOR DEPUTY ASSISTANT DIRECTOR, RE-ENTRY SERVICES DIVISION. CARAWAY, JOHN ...... REGIONAL DIRECTOR, MIDDLE ATLANTIC REGION. QUINTANA, FRANCISCO J ...... WARDEN, FMC, LEXINGTON, KY. BUTLER, SANDRA M ...... WARDEN FCI, MANCHESTER, KY. ORMOND, JOHNATHAN R ...... WARDEN, USP, MCCREARY, KY. STEWART, TIMOTHY S ...... WARDEN, FCI, CUMBERLAND, MD. HOLLAND, JAMES C ...... COMPLEX WARDENÐFMC, FCC, BUTNER, NC. MORA, STEVE B ...... ASSISTANT DIRECTOR, PROGRAM REVIEW DIVISION. LAYER, PAUL M ...... SENIOR DEPUTY ASSISTANT DIRECTOR, PROGRAM REVIEW DIVISION. BATTS, MYRON T ...... WARDEN FCI, MEMPHIS, TN. RATLEDGE, CHARLES R ...... WARDEN, USP, LEE COUNTY, VA. WILSON, ERIC D ...... COMPLEX WARDEN, FCC, PETERSBURG, VA. SAAD, JENNIFER S ...... WARDEN, FCI, GILMER, WV. YOUNG, DAVID L ...... WARDEN, FCI, BECKLEY, WV. COAKLEY, JOSEPH D ...... WARDEN, USP, HAZELTON, WV. REVELL, SARA M ...... REGIONAL DIRECTOR, NORTH CENTRAL REGION. MOORHEAD, JOSEPH W ...... WARDEN, USP, FCC, FLORENCE, CO. FOX, JACK W ...... COMPLEX WARDEN-ADX, FCC, FLORENCE, CO. BAIRD, MAUREEN P ...... WARDEN, USP, MARION, IL. KRUEGER, JEFFREY E ...... WARDEN, FCI, PEKIN, IL. HUDSON JR., DONALD J ...... WARDEN, FCI, THOMSON, IL. DANIELS, CHARLES A ...... COMPLEX WARDENÐUSP, FCC, TERRE HAUTE, IN. LARIVA, LEANN ...... WARDEN, FMC, ROCHESTER, MN. SANDERS, LINDA L ...... WARDEN USMCFP, SPRINGFIELD, MO. CARVAJAL, MICHAEL D ...... REGIONAL DIRECTOR, NORTHEAST REGION. GRONDOLSKY, JEFF F ...... WARDEN, FMC, DEVENS, MA. TATUM, ESKER L ...... WARDEN, MCC, NEW YORK, NY. KIRBY, MARK A ...... WARDEN, FCI, FAIRTON, NJ. ODDO, LEONARD ...... COMPLEX WARDENÐUSP, FCC, ALLENWOOD, PA. BALTAZAR JR., JUAN ...... WARDEN, USP, CANAAN, PA. EBBERT, DAVID W ...... WARDEN USP, LEWISBURG, PA. RECKTENWALD, MONICA L ...... WARDEN, FCI, MCKEAN, PA. PERDUE, RUSSELL A ...... WARDEN, FCI, SCHUYLKILL, PA. KELLER, JEFFREY A ...... REGIONAL DIRECTOR, SOUTH CENTRAL REGION. RIVERA, CARLOS V ...... COMPLEX WARDEN, FCC, FOREST CITY, AR. FOX, JOHN B ...... WARDEN, FTC, OKLAHOMA CITY, OK. LARA, FRANCISCO J ...... COMPLEX WARDEN-USP, FCC, BEAUMONT, TX. UPTON, JODY R ...... WARDEN, FMC, CARSWELL, TX. HANSON, RALPH ...... WARDEN, FCI, THREE RIVERS, TX. CHANDLER, RODNEY W ...... WARDEN, FCI, FORT WORTH, TX. MARBERRY, HELEN J ...... REGIONAL DIRECTOR, SOUTHEAST REGION. CLAY, BECKY ...... WARDEN, FCI, TALLADEGA, AL. JARVIS, TAMYRA ...... COMPLEX WARDENÐUSP2, FCC, COLEMAN, FL. LOCKETT, CHARLES L ...... WARDENÐUSP, COLEMAN 1, COLEMAN, FL. ENGLISH, NICOLE ...... WARDEN, FCI MARIANNA, FL. CHEATHAM, ROY C ...... WARDEN, FDC, MIAMI, FL. DREW, DARLENE ...... WARDEN, USP, ATLANTA, GA. FLOURNOY JR., JOHN V ...... WARDEN, FCI, JESUP, GA. MARTIN, MARK S ...... COMPLEX WARDEN, FCC, YAZOO CITY, MS. BRAGG, M. TRAVIS ...... WARDEN, FCI, BENNETTSVILLE, SC. MOSLEY, BONITA S ...... WARDEN, FCI, EDGEFIELD, SC. MEEKS, BOBBY L ...... WARDEN FCI, WILLIAMSBURG, SC. VAZQUEZ, NORBAL ...... WARDEN MDC, GUAYNABO, PUERTO RICO. MITCHELL, MARY M ...... REGIONAL DIRECTOR, WESTERN REGION. TRACY, KATHRYN M ...... WARDEN, FCI, PHOENIX, AZ. SHARTLE, JOHN T ...... COMPLEX WARDENÐUSP, FCC, TUSCON, AZ. LANGFORD, STEPHEN A ...... COMPLEX WARDEN FCC, LOMPOC, CA. SHINN, DAVID C ...... COMPLEX WARDEN, FCC, VICTORVILLE, CA. MATEVOUSIAN, ANDRE V ...... WARDEN, USP, ATWATER, CA. ZUNIGA, RAFAEL ...... WARDEN, FCI, MENDOTA, CA. IVES, RICHARD B ...... WARDEN FCI, SHERIDAN, OR.
Civil Division—CIV
MIZER, BENJAMIN C ...... PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL. BRINKMANN, BETH S ...... DEPUTY ASSISTANT ATTORNEY GENERAL. FRESCO, LEON ...... DEPUTY ASSISTANT ATTORNEY GENERAL. BRACEY, KALI ...... DEPUTY ASSISTANT ATTORNEY GENERAL. LEVINE, SARAH ...... DEPUTY ASSISTANT ATTORNEY GENERAL.
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2016 FEDERAL REGISTER—Continued
Name Position title
OLIN, JONATHAN F ...... DEPUTY ASSISTANT ATTORNEY GENERAL. ANDERSON, DANIEL R ...... DEPUTY DIRECTOR, COMMERCIAL LITIGATION BRANCH. ZWICK, KENNETH L ...... SENIOR ADVISOR. FLENTJE, AUGUST ...... SPECIAL COUNSEL. GRIFFITHS, JOHN R ...... BRANCH DIRECTOR, FEDERAL PROGRAMS. BRANDA, JOYCE R ...... DIRECTOR, COMMERCIAL LITIGATION BRANCH. COPPOLINO, ANTHONY J ...... DEPUTY BRANCH DIRECTOR. DAVIDSON, JEANNE E ...... DIRECTOR, COMMERCIAL LITIGATION BRANCH. FARGO, JOHN J ...... DIRECTOR, IP, COMMERCIAL LITIGATION BRANCH. BENSON, BARRY F ...... DIRECTOR, AVIATION AND ADMIRALTY SECTION. BHATTACHARYA, RUPA ...... DIRECTOR, CONSTITUTIONAL AND SPECIALIZED TORT LITIGATION SECTION. GLYNN, JOHN PATRICK ...... DIRECTOR, ENVIRONMENTAL TORT LITIGATION SECTION. EMERSON, CATHERINE V ...... DIRECTOR, OFFICE OF MANAGEMENT PROGRAMS. PEREZ, LUIS E ...... DEPUTY DIRECTOR, (OPS), OFFICE OF IMMIGRATION LITIGATION, DISTRICT COURT. PEACHEY, WILLIAM C ...... DIRECTOR, OFFICE OF IMMIGRATION LITIGATION, DISTRICT COURT. GRANSTON, MICHAEL D ...... DEPUTY DIRECTOR, COMMERCIAL LITIGATION BRANCH. MANHARDT, KIRK ...... DEPUTY DIRECTOR, COMMERCIAL LITIGATION BRANCH, CORPORATE AND FINANCIAL LITIGA- TION. DINTZER, KENNETH ...... DEPUTY DIRECTOR, COMMERCIAL LITIGATION BRANCH, NATIONAL COURTS. SNEE, BRYANT G ...... DEPUTY DIRECTOR, COMMERCIAL LITIGATION BRANCH, NATIONAL COURTS. YAVELBERG, JAMIE ANN ...... DEPUTY DIRECTOR, COMMERCIAL LITIGATION BRANCH, FRAUD SECTION. HAUSKEN, GARY L ...... SENIOR PATENT ATTORNEY. HUNT, JOSEPH H ...... BRANCH DIRECTOR. SHAPIRO, ELIZABETH J ...... DEPUTY BRANCH DIRECTOR. COLLETTE, MATTHEW ...... DEPUTY DIRECTOR, APPELLATE STAFF. KIRSCHMAN JR., ROBERT E ...... DIRECTOR, COMMERCIAL LITIGATION BRANCH. LETTER, DOUGLAS ...... DIRECTOR, APPELLATE STAFF. RAAB, MICHAEL ...... APPELLATE LITIGATION COUNSEL. STERN, MARK B ...... APPELLATE LITIGATION COUNSEL. TOUHEY, JR., JAMES ...... DIRECTOR, FEDERAL TORT CLAIMS ACT SECTION. LIEBER, SHEILA M ...... DEPUTY BRANCH DIRECTOR. MOLINA, JR., ERNESTO ...... DEPUTY DIRECTOR, OFFICE OF IMMIGRATION LITIGATION, APPELLATE SECTION. MARTIN, DANA ...... DEPUTY DIRECTOR, APPELLATE BRANCH. MCCONNELL, DAVID M ...... DIRECTOR, OFFICE OF IMMIGRATION LITIGATION, APPELLATE SECTION. MCINTOSH, SCOTT R ...... SENIOR LEVEL APELLATE COUNSEL. O’MALLEY, BARBARA B ...... SPECIAL LITIGATION COUNSEL, AVIATION AND ADMIRALTY SECTION. RICKETTS, JENNIFER D ...... BRANCH DIRECTOR. BLUME, MICHAEL ...... DIRECTOR, CONSUMER PROTECTION BRANCH. FURMAN, JILL ...... DEPUTY DIRECTOR, CONSUMER PROTECTION BRANCH. KISOR, COLIN ...... SENIOR TRIAL ATTORNEY, OFFICE OF IMMIGRATION LITIGATION. FREEMAN, MARK ...... SENIOR LEVEL TRIAL ATTORNEY, OFFICE OF IMMIGRATION LITIGATION, APPELLATE SECTION. KEENER, DONALD ...... SENIOR LEVEL TRIAL ATTORNEY, OFFICE OF IMMIGRATION LITIGATION, APPELLATE SECTION. D’ALESSIO, JR., C.S ...... SENIOR LEVEL TRIAL ATTORNEY, CONSTITUTIONAL SECTION. LINDEMANN, MICHAEL P ...... SENIOR TRIAL ATTORNEY (NATIONAL SECURITY). QUINN, MICHAEL J ...... SENIOR TRIAL ATTORNEY. GILLIGAN, JAMES J ...... SPECIAL LITIGATION COUNSEL. HARVEY, RUTH A ...... DIRECTOR, COMMERCIAL LITIGATION BRANCH, CORPORATE AND FINANCIAL LITIGATION. LATOUR, MICHELLE ...... DEPUTY DIRECTOR, OFFICE OF IMMIGRATION LITIGATION, APPELLATE SECTION. LANGSAM, STEFANIE ...... INTERIM ADMINISTRATOR FOR FUNDS, 9/11 VICTIM COMPENSATION FUND.
Civil Rights Division—CRT
GUPTA, VANITA ...... PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL. MOOSSY, ROBERT J ...... DEPUTY ASSISTANT ATTORNEY GENERAL. FRIEL, GREGORY ...... DEPUTY ASSISTANT ATTORNEY GENERAL. HILL, EVE LYNNE ...... DEPUTY ASSISTANT ATTORNEY GENERAL. LEVITT, JUSTIN ...... DEPUTY ASSISTANT ATTORNEY GENERAL. HOWE, SUSAN E ...... EXECUTIVE OFFICER. GINSBURG, JESSICA A ...... COUNSEL TO THE ASSISTANT ATTORNEY GENERAL. KENNEBREW, DELORA ...... CHIEF, EMPLOYMENT LITIGATION SECTION. MAJEED, SAMEENA S ...... CHIEF, HOUSING AND CIVIL ENFORCEMENT SECTION. JANG, DEEANA L ...... CHIEF, FEDERAL COORDINATION AND COMPLIANCE SECTION. HERREN JR., THOMAS C ...... CHIEF, VOTING SECTION. WERTZ, REBECCA ...... PRINCIPAL DEPUTY CHIEF, VOTING SECTION. FLYNN, DIANA KATHERINE ...... CHIEF, APPELLATE SECTION. MCGOWAN, SHARON M ...... PRINCIPAL DEPUTY CHIEF, APPELLATE SECTION. BOND, REBECCA B ...... CHIEF, DISABILITY RIGHTS SECTION. EMBRY, DIANA ...... CHIEF, EMPLOYMENT COUNSEL. FORAN, SHEILA ...... SPECIAL LEGAL COUNSEL. BLUMBERG, MARK ...... SPECIAL LEGAL COUNSEL. RUISANCHEZ, ALBERTO ...... DEPUTY SPECIAL COUNSEL FOR IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES. PRESTON, JUDITH L ...... PRINCIPAL DEPUTY CHIEF, SPECIAL LITIGATION SECTION.
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2016 FEDERAL REGISTER—Continued
Name Position title
RAISH, ANNE ...... PRINCIPAL DEPUTY CHIEF, DISABILITY RIGHTS SECTION. WOODARD, KAREN ...... PRINCIPAL DEPUTY CHIEF, EMPLOYMENT LITIGATION SECTION. ROSENBAUM, STEVEN H ...... CHIEF, HOUSING AND CIVIL ENFORCEMENT SECTION.
Criminal Division—CRM
BITKOWER, DAVID ...... PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL. & CHIEF OF STAFF. BLANCO, KENNETH A ...... DEPUTY ASSISTANT ATTORNEY GENERAL. SUH, SUNG-HEE ...... DEPUTY ASSISTANT ATTORNEY GENERAL. SWARTZ, BRUCE CARLTON ...... DEPUTY ASSISTANT ATTORNEY GENERAL. AINSWORTH, PETER J ...... SENIOR COUNSEL, OFFICE OF OVERSEAS PROSECUTORIAL DEVELOPMENT ASSISTANCE AND TRAINING. CARROLL, OVIE ...... DIRECTOR, CYBERCRIME LABORATORY, COMPUTER CRIME AND INTELLECTUAL PROPERTY SECTION. ARY, VAUGHN ...... DIRECTOR, OFFICE OF INTERNATIONAL AFFAIRS. CONNOR, DEBORAH L ...... DEPUTY CHIEF, ASSET FORFEITURE AND MONEY LAUNDERING SECTION. CARWILE, P. KEVIN ...... CHIEF, CAPITAL CASE UNIT. DAY, M. KENDALL ...... CHIEF, ASSET FORFEITURE AND MONEY LAUNDERING SECTION. DOWNING, RICHARD W ...... DEPUTY CHIEF, COMPUTER CRIME AND INTELLECTUAL PROPERTY SECTION. EHRENSTAMM, FAYE ...... DIRECTOR, OPDAT. GOODMAN, NINA ...... SENIOR COUNSEL FOR APPEALS. GROCKI, STEVEN J ...... CHIEF, CHILD EXPLOITATION AND OBSCENITY SECTION. HODGE, JENNIFER A.H ...... DEPUTY DIRECTOR, OFFICE OF ENFORCEMENT OPERATIONS. HULSER, RAYMOND ...... CHIEF, PUBLIC INTEGRITY SECTION. JAFFE, DAVID ...... DEPUTY CHIEF, ORGANIZED CRIME AND GANG SECTION. JONES, JOSEPH M ...... SENIOR COUNSEL FOR INTERNATIONAL DEVELOPMENT AND TRAINING. KING, DAMON A ...... DEPUTY CHIEF, CHILD EXPLOITATION AND OBSCENITY SECTION. LYNCH JR., JOHN T ...... CHIEF, COMPUTER CRIME, AND INTELLECTUAL PROPERTY SECTION. MCHENRY, TERESA L ...... CHIEF, HUMAN RIGHTS AND SPECIAL PROSECUTIONS SECTION MELTON, TRACY ...... EXECUTIVE OFFICER. O’BRIEN, PAUL M ...... DIRECTOR, OFFICE OF ENFORCEMENT OPERATIONS. OLMSTED, MICHAEL ...... SENIOR JUSTICE FOR THE EUROPEAN UNION AND INTERNATIONAL CRIMINAL MATTERS. PAINTER, CHRISTOPHER M ...... SENIOR COUNSEL FOR CYBERCRIME. POPE, AMY ...... COUNSELOR TO THE ASSISTANT ATTORNEY GENERAL. RAABE, WAYNE C ...... DEPUTY CHIEF, NARCOTIC AND DANGEROUS DRUG SECTION. RODRIGUEZ, MARY D ...... DEPUTY DIRECTOR, OFFICE OF INTERNATIONAL AFFAIRS. ROSENBAUM, ELI M ...... DIRECTOR, HUMAN RIGHTS ENFORCEMENT STRATEGY AND POLICY. STEMLER, PATTY MERKAMP ...... CHIEF, APPELLATE SECTION. TIROL, ANNALOU ...... DEPUTY CHIEF, PUBLIC INTEGRITY SECTION. TRUSTY, JAMES ...... CHIEF, ORGANIZED CRIME AND GANG SECTION. WEISSMANN, ANDREW ...... CHIEF, FRAUD SECTION. WROBLEWSKI, JONATHAN J ...... DIRECTOR, OFFICE OF POLICY AND LEGISLATION. WYATT, ARTHUR G ...... CHIEF, NARCOTIC AND DANGEROUS DRUG SECTION. WYDERKO, JOSEPH ...... DEPUTY CHIEF, APPELLATE SECTION.
Environmental and Natural Resources Division—ENRD
HIRSCH, SAMUEL ...... PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL. JONES, LISA ...... DEPUTY ASSISTANT ATTORNEY GENERAL. WILLIAMS, JEAN E ...... DEPUTY ASSISTANT ATTORNEY GENERAL. GELBER, BRUCE S ...... DEPUTY ASSISTANT ATTORNEY GENERAL. ALEXANDER, S. CRAIG ...... CHIEF, INDIAN RESOURCES SECTION. BARSKY, SETH ...... CHIEF, WILDLIFE AND MARINE RESOURCES. COLLIER, ANDREW ...... EXECUTIVE OFFICER. DOUGLAS, NATHANIEL ...... DEPUTY SECTION CHIEF, ENVIRONMENTAL ENFORCEMENT SECTION. FERGUSON, CYNTHIA ...... SENIOR LITIGATOR, ENVIRONMENTAL JUSTICE. GETTE, JAMES ...... DEPUTY CHIEF, NATURAL RESOURCES SECTION. GOLDFRANK, ANDREW M ...... CHIEF, LAND ACQUISITION SECTION. GRISHAW, LETITIA J ...... CHIEF, ENVIRONMENTAL DEFENSE SECTION. HARRIS, DEBORAH ...... CHIEF, ENVIRONMENTAL CRIMES SECTION. HOANG, ANTHONY P ...... SENIOR LITIGATION COUNSEL, NATURAL RESOURCES. KILBOURNE, JAMES C ...... CHIEF, APPELLATE SECTION. MAHAN, ELLEN M ...... DEPUTY CHIEF, ENVIRONMENTAL ENFORCEMENT SECTION. MARIANI, THOMAS ...... CHIEF, ENVIRONMENTAL ENFORCEMENT SECTION. MERGEN, ANDREW ...... DEPUTY CHIEF, APPELLATE SECTION. PASSARELLI, EDWARD ...... DEPUTY CHIEF, NATURAL RESOURCES SECTION. POUX, JOSEPH ...... DEPUTY CHIEF, ENVIRONMENTAL CRIMES SECTION. RUSSELL, LISA L ...... CHIEF, NATURAL RESOURCES SECTION. HIMMELCHOCH, SARAH ...... SENIOR ATTORNEY FOR E-DISCOVERY. SHILTON, DAVID ...... SENIOR LITIGATION COUNSEL. SINGER, FRANK ...... SENIOR LITIGATION COUNSEL. STEWART, HOWARD P ...... SENIOR LITIGATION COUNSEL.
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2016 FEDERAL REGISTER—Continued
Name Position title
TENENBAUM, ALAN S ...... SENIOR LITIGATION COUNSEL. VADEN, CHRISTOPHER S ...... DEPUTY CHIEF, ENVIRONMENTAL DEFENSE SECTION. WARDZINSKI, KAREN M ...... CHIEF, LAW AND POLICY SECTION.
Executive Office for Immigration Review—EOIR
OSUNA, JUAN P ...... DIRECTOR. KOCUR, ANA ...... DEPUTY DIRECTOR. ADKINS-BLANCH, CHARLES K .... VICE CHAIRMAN, BOARD OF IMMIGRATION APPEALS. CLARK, MOLLY K ...... ATTORNEY EXAMINER. COLE, PATRICIA A ...... ATTORNEY EXAMINER. CREPPY, MICHAEL ...... ATTORNEY EXAMINER. MANN, ANA ...... ATTORNEY EXAMINER. ESPENOZA, CECELIA MARIE ...... SENIOR ASSOCIATE GENERAL COUNSEL. GRANT, EDWARD R ...... ATTORNEY EXAMINER. GREER, ANNE J ...... ATTORNEY EXAMINER. GUENDELSBERGER, JOHN W ..... ATTORNEY EXAMINER. JORDAN, WYEVETRA ...... ASSISTANT DIRECTOR FOR ADMINISTRATION. KING, JEAN ...... GENERAL COUNSEL. LIEBOWITZ, ELLEN ...... ATTORNEY EXAMINER. MALPHRUS, GARRY D ...... ATTORNEY EXAMINER. MCGOINGS, MICHAEL ...... DEPUTY CHIEF, IMMIGRATION JUDGE. MULLANE, HUGH G ...... ATTORNEY EXAMINER. NEAL, DAVID ...... CHAIRMAN, BOARD OF IMMIGRATION APPEALS. O’CONNOR, BLAIR ...... ATTORNEY EXAMINER. PAULEY, ROGER ANDREW ...... ATTORNEY EXAMINER. SCHMIDT, PAUL W ...... SENIOR IMMIGRATION JUDGE. STUTMAN, ROBIN M ...... CHIEF ADMINISTRATIVE HEARING OFFICER. WENDTLAND, LINDA S ...... ATTORNEY EXAMINER.
Executive Office for Organized Crime Drug Enforcement Task Forces—OCDETF
OHR, BRUCE G ...... DIRECTOR. PADDEN, THOMAS W ...... DEPUTY DIRECTOR, OCDETF. KELLY, THOMAS J ...... DIRECTOR, FUSION CENTER.
Executive Office for U.S. Attorneys—EOUSA
WILKINSON, ROBERT ‘‘MONTY’’ .. DIRECTOR. BELL, SUZANNE L ...... DEPUTY DIRECTOR. SUDDES, PAUL ...... CHIEF FINANCIAL OFFICER. FLESHMAN, JAMES MARK ...... CHIEF INFORMATION OFFICER. CHANDLER, CAMERON G ...... ASSOCIATE DIRECTOR, OFFICE OF LEGAL EDUCATION. FLINN, SHAWN ...... CHIEF HUMAN RESOURCES OFFICER. MACKLIN, JAMES ...... GENERAL COUNSEL. SMITH, DAVID L ...... COUNSEL FOR LEGAL INITIATIVES. VILLEGAS, DANIEL A ...... COUNSEL, LEGAL PROGAMS AND POLICY. WONG, NORMAN Y ...... DEPUTY DIRECTOR AND COUNSEL TO THE DIRECTOR.
Executive Office for U.S. Trustees—EOUST
WHITE III, CLIFFORD J ...... DIRECTOR. ELLIOTT, RAMONA D ...... DEPUTY DIRECTOR, GENERAL COUNSEL. WINDSOR, DEIDRE ...... DEPUTY DIRECTOR, MANAGEMENT.
Justice Management Division—JMD
LOFTHUS, LEE J ...... ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION. SANTANGELO, MARI BARR ...... DEPUTY ASSISTANT ATTORNEY GENERAL FOR HUMAN RESOURCES AND ADMINISTRATION (CHCO). ALLEN, MICHAEL H ...... DEPUTY ASSISTANT ATTORNEY GENERAL FOR POLICY, MANAGEMENT, AND PLANNING, AND CHIEF OF STAFF. LAURIA JOLENE A ...... DEPUTY ASSISTANT ATTORNEY GENERAL/CONTROLLER. KLIMAVICZ, JOSEPH ...... DEPUTY ASSISTANT ATTORNEY GENERAL FOR INFORMATION RECOURCES MANAGEMENT AND CHIEF INFORMATION OFFICER. GARY, ARTHUR ...... GENERAL COUNSEL. ALVAREZ, CHRISTOPHER C ...... DIRECTOR, FINANCE STAFF. DEELEY, KEVIN ...... DEPUTY CHIEF INFORMATION OFFICER. FRONE, JAMILA ...... DIRECTOR, OFFICE OF ATTORNEY RECRUITMENT AND MANAGEMENT. DUNLAP, JAMES L ...... DIRECTOR, SECURITY AND EMERGENCY PLANNING STAFF. SNELL, ROBERT ...... DIRECTOR, FACILITIES AND ADMINISTRATIVE SERVICES STAFF. FELDT, DENNIS G ...... DIRECTOR, LIBRARY STAFF. RAYMOND, JOHN ...... DIRECTOR, IT POLICY AND PLANNING STAFF.
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2016 FEDERAL REGISTER—Continued
Name Position title
SELWESKI, MARK L ...... DIRECTOR, PROCUREMENT SERVICES STAFF. DAUPHIN, DENNIS E ...... DIRECTOR, DEBT COLLECTION MANAGEMENT STAFF. ARNOLD, KENNETH ...... DIRECTOR, ASSET FORFEITURE MANAGEMENT STAFF. FUNSTON, ROBIN S ...... DIRECTOR, BUDGET STAFF. KLEPPINGER, ERIC D ...... DEPUTY DIRECTOR, BUDGET STAFF, OPERATIONS AND FUNDS CONTROL. ROGERS, MELINDA ...... DIRECTOR, CYBERSECURITY SERVICES STAFF. MCCRAE, DANIEL ...... DIRECTOR, SERVICE DELIVERY STAFF. ZIMMER, DAWN ...... DEPUTY DIRECTOR, SERVICE DELIVERY STAFF. BEWTRA, ANEET K ...... CHIEF TECHNOLOGY OFFICER. RODGERS, JANICE M ...... DIRECTOR, DEPARTMENTAL ETHICS OFFICE. TOSCANO JR., RICHARD A ...... DIRECTOR, EQUAL EMPLOYMENT OPPORTUNITY STAFF. MCCONKEY, MILTON ...... SENIOR ADVISOR. COOK, TERENCE L ...... SENIOR ADVISOR. ROPER, MATTHEW ...... SENIOR ADVISOR FOR FINANCIAL MANAGEMENT INFORMATION TECHNOLOGY.
National Security Division—NSD
MCCORD, MARY ...... PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL AND CHIEF OF STAFF. WIEGMANN, JOHN B ...... DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LAW AND POLICY. TOSCAS, GEORGE Z ...... DEPUTY ASSISTANT ATTORNEY GENERAL (COUNTERESPIONAGE-COUNTERTERRORISM). BRADLEY, MARK A ...... DIRECTOR, FOIA AND DECLASSIFICATION PROGRAM. JAYARAM, SANCHITHA ...... CHIEF, FOREIGN INVESTMENT REVIEW STAFF. DUNNE, STEVEN M ...... CHIEF, APPELLATE UNIT. EVANS, STUART ...... DEPUTY CHIEF, OPERATIONS SECTION. JENKINS, MARK A ...... EXECUTIVE OFFICER. WEINSHEIMER, G. BRADLEY ...... DIRECTOR OF RISK MANAGEMENT AND COUNSELOR. KEEGAN, MICHAEL ...... DEPUTY CHIEF, COUNTERTERRORISM SECTION. KENNEDY, J. LIONEL ...... SPECIAL COUNSEL FOR NATIONAL SECURITY. MULLANEY, MICHAEL J ...... CHIEF, COUNTERTERRORISM SECTION. O’CONNOR, KEVIN ...... CHIEF, OVERSIGHT SECTION. SANZ-REXACH, GABRIEL ...... CHIEF, OPERATIONS SECTION. HARDEE, CHRISTOPHER ...... CHIEF, POLICY-OFFICE OF LAW AND POLICY. LAUFMAN, DAVID ...... CHIEF, COUNTERINTELLIGENCE, EXPORT CONTROL AND ECONOMIC ESPIONAGE.
Office of Community Oriented Policing Services—COPS
DAVIS, RONALD L ...... DIRECTOR. BROWN-CUTLAR, SHANETTA ..... SENIOR ADVISOR TO THE DIRECTOR. WRAY, NOBLE ...... SENIOR ADVISOR.
Office of Information Policy—OIP
PUSTAY, MELANIE ANN ...... DIRECTOR.
Office of the Inspector General—OIG
STORCH, ROBERT ...... DEPUTY INSPECTOR GENERAL. MALMSTROM, JASON R ...... ASSISTANT INSPECTOR GENERAL FOR AUDIT. BLIER, WILLIAM M ...... GENERAL COUNSEL. BECKHARD, DANIEL C ...... ASSISTANT INSPECTOR GENERAL FOR OVERSIGHT AND REVIEW. O’NEILL, MICHAEL SEAN ...... DEPUTY ASSISTANT INSPECTOR GENERAL FOR OVERSIGHT AND REVIEW. PELLETIER, NINA S ...... ASSISTANT INSPECTOR GENERAL FOR EVALUATION AND INSPECTIONS. HAYES, MARK L ...... DEPUTY ASSISTANT INSPECTOR GENERAL FOR AUDIT. JOHNSON, ERIC A ...... ASSISTANT INSPECTOR GENERAL INVESTIGATIONS. PETERS, GREGORY T ...... ASSISTANT INSPECTOR GENERAL FOR MANAGEMENT AND PLANNING. LOWELL, CYNTHIA ...... DEPUTY ASSISTANT INSPECTOR GENERAL FOR MANAGEMENT AND PLANNING. LERNER, JAY ...... SENIOR COUNSEL TO THE INSPECTOR GENERAL. MITZELFELD, JAMES A ...... COUNSEL TO THE INSPECTOR GENERAL. RATON, MITCH ...... CHIEF INNOVATION OFFICER. SUMNER, PATRICIA ...... SENIOR COUNSEL TO THE ASSISTANT INSPECTOR GENERAL FOR OVERSIGHT AND REVIEW.
Office of Justice Programs—OJP
MCGARRY, BETH ...... PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL. HENNEBERG, MAUREEN A ...... DEPUTY ASSISTANT ATTORNEY GENERAL OPERATIONS MANAGEMENT. GARRY, EILEEN M ...... DEPUTY DIRECTOR FOR PLANNING, BUREAU OF JUSTICE ASSISTANCE. TRAUTMAN, TRACEY ...... DEPUTY DIRECTOR FOR PROGRAMS, BUREAU OF JUSTICE ASSISTANCE. FEUCHT, THOMAS E ...... EXECUTIVE SCIENCE ADVISOR, NATIONAL INSTITUTE OF JUSTICE. SPIVAK, HOWARD ...... PRINCIPAL DEPUTY DIRECTOR, NATIONAL INSTITUTE OF JUSTICE. MARTIN, RALPH ...... DIRECTOR, OFFICE OF AUDIT, ASSESSMENT, AND MANAGEMENT. MERKLE, PHILIP ...... DIRECTOR, OFFICE OF ADMINISTRATION. MADAN, RAFAEL A ...... GENERAL COUNSEL. MAHONEY, KRISTEN ...... DEPUTY DIRECTOR, POLICY MANAGEMENT, BUREAU OF JUSTICE ASSISTANCE.
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2016 FEDERAL REGISTER—Continued
Name Position title
ROBERTS, MARILYN M ...... DEPUTY DIRECTOR, OFFICE FOR VICTIMS OF CRIME. MULROW, JERI ...... DIRECTOR, BUREAU OF JUSTICE STATISTICS. SOLOMON, AMY ...... DIRECTOR FOR POLICY. MCGRATH, BRIAN ...... CHIEF INFORMATION OFFICER. BENDA, BONNIE LEIGH ...... CHIEF FINANCIAL OFFICER. ATSATT, MARILYNN B ...... DEPUTY CHIEF FINANCIAL OFFICER. BECK, ALLEN J ...... SENIOR STATISTICIAN. DE BACA, LOUIS ...... SMART COORDINATOR. DARDEN, SILAS ...... DIRECTOR, OFFICE OF COMMUNICATIONS. JONES, CHYRL ...... DEPUTY ADMINISTRATOR FOR PROGRAMS, OJJDP.
Office of Legal Counsel—OLC
THOMPSON, KARL ...... PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL. KOFFSKY, DANIEL L ...... DEPUTY ASSISTANT ATTORNEY GENERAL. BOYNTON, BRIAN ...... DEPUTY ASSISTANT ATTORNEY GENERAL. BIES, JOHN ...... DEPUTY ASSISTANT ATTORNEY GENERAL. MCKENZIE, TROY A ...... DEPUTY ASSISTANT ATTORNEY GENERAL. COLBORN, PAUL P ...... SPECIAL COUNSEL. HART, ROSEMARY A ...... SPECIAL COUNSEL. SINGDAHLSEN, JEFFREY P ...... SENIOR COUNSEL.
Office of Legal Policy—OLP
JONES, KEVIN ROBERT ...... DEPUTY ASSISTANT ATTORNEY GENERAL. THIEMANN, ROBYN L ...... DEPUTY ASSISTANT ATTORNEY GENERAL. ZUBRENSKY, MICHAEL ...... DEPUTY ASSISTANT ATTORNEY GENERAL. KARP, DAVID J ...... SENIOR COUNSEL. JACOBS, JOANNA ...... SENIOR COUNSEL FOR ALTERNATIVE DISPUTE RESOLUTION.
Office of Legislative Affairs—OLA
LOSICK, ERIC ...... DEPUTY ASSISTANT ATTORNEY GENERAL. O’BRIEN, ALICIA ...... DEPUTY ASSISTANT ATTORNEY GENERAL. WILLIAMS, ELLIOT ...... DEPUTY ASSISTANT ATTORNEY GENERAL. BURTON, M. FAITH ...... SPECIAL COUNSEL.
Office of Professional Responsibility—OPR
ASHTON, ROBIN ...... COUNSEL FOR PROFESSIONAL RESPONSIBILITY. RAGSDALE, JEFFREY ...... DEPUTY COUNSEL ON PROFESSIONAL RESPONSIBILITY. BIRNEY, WILLIAM ...... SENIOR ASSOCIATE COUNSEL. HURLEY, RAYMOND ...... SENIOR ASSOCIATE COUNSEL.
Office of Public Affairs—PAO
NEWMAN, MELANIE ...... DIRECTOR.
Office on Violence Against Women—OVW
HANSON, BEATRICE ...... PRINCIPAL DEPUTY DIRECTOR.
Professional Responsibility Advisory Office—PRAO
LUDWIG, STACY ...... DIRECTOR.
Tax Division—TAX
CIRAOLO, CAROLINE ...... DEPUTY ASSISTANT ATTORNEY GENERAL. ERBSEN, DIANA ...... DEPUTY ASSISTANT ATTORNEY GENERAL. HUBBERT, DAVID A ...... DEPUTY ASSISTANT ATTORNEY GENERAL. BRUFFY, ROBERT ...... EXECUTIVE OFFICER. BALLWEG, MITCHELL ...... COUNSELOR TO THE DEPUTY ASSISTANT ATTORNEY GENERAL FOR STRATEGIC TAX ENFORCE- MENT. WSZALEK, LARRY ...... CHIEF, CRIMINAL ENFORCEMENT SECTION, WESTERN REGION. DALY, MARK ...... SENIOR TRIAL ATTORNEY. DAVIS, NANETTE ...... SENIOR TRIAL ATTORNEY. DONOHUE, DENNIS M ...... SENIOR LITIGATION COUNSEL. PINCUS, DAVID ...... CHIEF, COURT OF FEDERAL CLAIMS SECTION. GOLDBERG, STUART ...... SENIOR COUNSELOR TO THE ASSISTANT ATTORNEY GENERAL. HAGLEY, JUDITH ...... SENIOR TRIAL ATTORNEY. HARTT III, GROVER ...... CHIEF, CIVIL TRIAL SECTION SOUTHWESTERN REGION. IHLO, JENNIFER ...... SENIOR TRIAL ATTORNEY.
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2016 FEDERAL REGISTER—Continued
Name Position title
CLARKE, RUSSELL SCOTT ...... CHIEF, CIVIL TRIAL SECTION, CENTRAL REGION. JOHNSON, CORY ...... SENIOR TRIAL ATTORNEY. KEARNS, MICHAEL J ...... CHIEF, CIVIL TRIAL SECTION, SOUTHERN REGION. LARSON, KARI ...... SENIOR TRIAL ATTORNEY. LINDQUIST III, JOHN A ...... SENIOR TRIAL ATTORNEY. MELAND, DEBORAH ...... CHIEF, CIVIL TRIAL SECTION EASTERN REGION. REID, ANN C ...... CHIEF, OFFICE OF REVIEW. MULLARKEY, DANIEL P ...... CHIEF, CIVIL TRIAL SECTION, NORTHERN REGION. PAGUNI, ROSEMARY E ...... CHIEF, CRIMINAL ENFORCEMENT SECTION, NORTHERN REGION. ROTHENBERG, GILBERT S ...... CHIEF, APPELLATE SECTION. CLARK, THOMAS J ...... DEPUTY CHIEF, APPELLATE SECTION. SALAD, BRUCE M ...... CHIEF, CRIMINAL ENFORCEMENT SECTION, SOUTHERN REGION. SAWYER, THOMAS ...... SENIOR TRIAL ATTORNEY. SERGI, JOSEPH A ...... SENIOR TRIAL ATTORNEY. SHATZ, EILEEN M ...... SPECIAL LITIGATION COUNSEL. SMITH, COREY J ...... SENIOR TRIAL ATTORNEY. STEHLIK, NOREENE C ...... SENIOR TRIAL ATTORNEY. SULLIVAN, JOHN ...... SENIOR TRIAL ATTORNEY. WEAVER, JAMES E ...... SENIOR TRIAL ATTORNEY. WARD, RICHARD ...... CHIEF, CIVIL TRIAL SECTION WESTERN REGION.
U.S. Marshals Service—USMS
HARLOW, DAVID ...... DEPUTY DIRECTOR. AUERBACH, GERALD ...... GENERAL COUNSEL. BROWN, SHANNON B ...... ASSISTANT DIRECTOR, JPATS. MOHAN, KATHERINE T ...... ASSISTANT DIRECTOR, HUMAN RESOURCES. SGROI, THOMAS J ...... ASSISTANT DIRECTOR, MANAGEMENT SUPPORT. DRISCOLL, DERRICK ...... ASSISTANT DIRECTOR, INVESTIGATIVE OPERATIONS. MATHIAS, KARL ...... ASSISTANT DIRECTOR FOR INFORMATION TECHNOLOGY. BOLEN, JOHN O’DONALD ...... SSISTANT DIRECTOR, JUDICIAL SECURITY. EDWARDS, SOPHIA ...... DIRECTOR, BUSINESS STRATEGY AND NTEGRATION. PROUT, MICHAEL ...... ASSISTANT DIRECTOR, WITNESS SECURITY. MUSEL, DAVID F ...... ASSOCIATE DIRECTOR, ADMINISTRATION. SNELSON, WILLIAM D ...... ASSOCIATE DIRECTOR, OPERATIONS. VIRTUE, TIMOTHY ...... ASSISTANT DIRECTOR, ASSET FORFEITURE. DESOUSA, NEIL K ...... ASSISTANT DIRECTOR, TACTICAL OPERATIONS. O’BRIEN-ROGAN, CAROLE ...... PROCUREMENT EXECUTIVE, FINANCIAL SERVICES. O’BRIEN, HOLLEY ...... CHIEF, FINANCIAL OFFICER, FINANCIAL SERVICES.
[FR Doc. 2016–23780 Filed 9–30–16; 8:45 am] the United States from one of Kirby’s oil $4,900,000.00 for the alleged violation. BILLING CODE 4410–CH–P barges operating in the Houston Ship In addition to payment of the penalty, Channel. the Consent Decree requires Kirby to The Complaint alleges that the spill perform corrective measures across its DEPARTMENT OF JUSTICE occurred on March 22, 2014, when a entire fleet of vessels, including Kirby tow boat, the Miss Susan, was Notice of Lodging of Proposed providing new and enhanced pushing two 300-foot oil barges in the navigational equipment and training Consent Decree Under The Clean ‘‘Texas City Y’’ area of the Houston Ship Water Act and implementing improved operational Channel in fog conditions. Despite practices. Kirby also agrees to waive any On September 27, 2016, the detecting the nearby presence of a 585- limits on its liability under the Oil Department of Justice lodged a proposed foot bulk cargo ship, the Summer Wind, Pollution Act related to the oil spill Consent Decree with the United States traveling up the Houston Ship Channel, incident at issue in this case. District Court for the Southern District Kirby’s tow boat and barges tried to of Texas in the lawsuit entitled United cross the Channel in front of the cargo The publication of this notice opens States v. Kirby Inland Marine, L.P., Civil ship. As a result, Kirby’s lead oil barge a period for public comment on the Action No. 3:16–cv–269. was struck by the cargo ship and proposed Consent Decree. Comments The Complaint in this Clean Water approximately 4,000 barrels of heavy should be addressed to the Assistant Act case was filed against Kirby Inland marine fuel oil spilled out of the barge Attorney General, Environment and Marine concurrently with the lodging of into the waterway. From there, oil Natural Resources Division, and should the proposed Consent Decree. The flowed out of the channel and spread refer to United States v. Kirby Inland Complaint alleges that Kirby is civilly down the Texas coastline. A full Marine, L.P., D.J. Ref. No. 90–5–1–1– liable for violation of Section 311 of the assessment of the injuries caused by the 11096. All comments must be submitted Clean Water Act (‘‘CWA’’), 33 U.S.C. spill to marine and terrestrial natural no later than thirty (30) days after the 1321. The Complaint seeks civil resources is ongoing and will be publication date of this notice. penalties and injunctive relief for the addressed separately. Comments may be submitted either by discharge of harmful quantities of Under the proposed Consent Decree, email or by mail: marine fuel oil into navigable waters of Kirby will pay a civil penalty of
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To submit establishing more than isolated industry. Based on the findings of the comments: Send them to: incidents of forced or indentured child survey, the CEPC stated that while there labor in the production of carpets in are cases of child labor, there is no By email ...... pubcomment-ees.enrd@ India. With this final determination, the evidence of forced child labor in the usdoj.gov. current EO List remains in place. The production or manufacture of this good. By mail ...... Assistant Attorney General, list identifies products, by country of However, the CEPC survey methodology U.S. DOJ—ENRD, P.O. Box 7611, Washington, DC origin, which the Departments have a had sampling and questionnaire design 20044Ð7611. reasonable basis to believe might have limitations that affected its ability to been mined, produced, or manufactured capture forced labor or collect data on During the public comment period, by forced or indentured child labor. a representative sample of the carpet the proposed Consent Decree may be Under a final rule by the Federal industry. examined and downloaded at this Acquisition Regulatory Council, The two other comments received did Justice Department Web site: https:// published January 18, 2001, which also not provide enough specificity on the www.justice.gov/enrd/consent-decrees. implements Executive Order No. 13126, conditions or prevalence of children’s We will provide a paper copy of the federal contractors who supply products work in order to be able to make a final proposed Consent Decree upon written on the EO List are required to certify, determination that forced or indentured request and payment of reproduction among other things, that they have made child labor in India’s carpet industry is costs. Please mail your request and a good faith effort to determine whether occurring in more than isolated payment to: Consent Decree Library, forced or indentured child labor was incidents. GoodWeave submitted a U.S. DOJ—ENRD, P.O. Box 7611, used to produce those products and comment in support of including carpets produced in India on the EO Washington, DC 20044–7611. that, on the basis of those efforts, the List, along with two newspaper articles Please enclose a check or money order contractor is unaware of any such use of reporting two rescue operations during for $6.25 (25 cents per page child labor. See 66 FR 5346, 5347; 48 which children were removed from reproduction cost) payable to the United CFR 22.1502(c). carpet production facilities where they States Treasury. SUPPLEMENTARY INFORMATION: were forced to work. However, Thomas P. Carroll, I. Initial Determination GoodWeave’s submission did not Assistant Section Chief, Environmental On December 2, 2014, the discuss the prevalence of forced child Enforcement Section, Environment and Departments published a Notice of labor in carpet production; rather, it Natural Resources Division. Initial Determination in the Federal only discussed the prevalence of child [FR Doc. 2016–23738 Filed 9–30–16; 8:45 am] Register proposing to add carpets from labor within the industry. While the BILLING CODE 4410–15–P India to the List of Products Requiring newspaper articles do discuss forced Federal Contractor Certification as to child labor, they do not demonstrate Forced or Indentured Child Labor (EO that forced child labor is prevalent in DEPARTMENT OF LABOR List). 79 FR 71448. The Departments the industry. issued the initial determination because Siddharth Kara, a Harvard University Office of the Secretary of Labor they had a reasonable basis to believe researcher and faculty member, also that there was forced or indentured submitted a public comment in support Notice of Final Determination child labor in the production of carpets of adding Indian carpets to the EO List. Regarding the Proposed Revision of from India in more than isolated Kara cited the findings of his research the List of Products Requiring Federal incidents. This initial determination can study, which was one of the sources Contractor Certification as to Forced be accessed on the Internet at https:// cited by the Departments in making or Indentured Child Labor Pursuant to federalregister.gov/a/2014-27624. their initial determination. Even though Executive Order 13126 Kara’s submission stated that his II. Public Comment Period research found a significant prevalence AGENCY: Bureau of International Labor When the initial determination was of forced labor and child labor in India’s Affairs issued, the public was invited to submit carpet industry, neither the comment ACTION: Notice of final determination. comments until January 30, 2015 on nor the study itself specifically whether carpets from India should be addresses the prevalence of forced child SUMMARY: This notice announces a final added to the EO List, as well as any labor in the industry. While Kara determination that carpets from India other issues related to the fair and clarified in a separate correspondence will not be added to the List of Products effective implementation of Executive that all children categorized as engaged Requiring Federal Contractor Order No. 13126. During the public in child labor were in fact engaged in Certification as to Forced or Indentured comment period, three comments were forced labor as defined by international Child Labor (EO List) required by submitted. Those comments are standards, the Departments were not Executive Order No. 13126 available for public viewing at http:// able to determine whether child labor (‘‘Prohibition of Acquisition of Products www.regulations.gov (reference Docket victims discussed in Kara’s research Produced by Forced or Indentured Child ID No. DOL–2014–0004). study were exposed to specific Labor’’). The Departments of Labor, During this comment period, the indicators of forced labor, as defined by State, and Homeland Security comments received called into question international standards. (collectively, the Departments) proposed whether all the criteria required for adding carpets from India to the EO List adding a good to the EO List had been III. Gathering, Receipt, and Analysis of in a Notice of Initial Determination in met. One of the three comments was Additional Information the Federal Register on December 2, from the Carpet Export Promotion In light of the inconsistency in the 2014. 79 FR 71448. After a thorough Council (CEPC), which opposed the information received during the initial review of the information available and addition of carpets from India to the EO public comment period, the comments received, the Departments List. The CEPC’s submission included a Departments gathered and received have determined that there is not survey it had commissioned in 2104 on twenty additional comments on forced sufficient evidence at this time labor practices in the Indian carpet child labor in India’s carpet industry.
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The information gathered and received a representative sample of the carpet The initial determination, the can be found at http:// industry. extension of request for public www.regulations.gov (reference Docket During the trip to India, DOL officials comments, and the public comments ID No. DOL–2014–0004). also traveled to carpet production can also be obtained from: Office of This information received did not facilities with non-governmental Child Labor, Forced Labor, and Human provide sufficient evidence that there organizations and to others that Trafficking (OCFT), Bureau of are more than isolated incidents of participate in a CEPC monitoring International Labor Affairs, Room S– forced child labor in India’s carpet program. During those visits, the DOL 5317, U.S. Department of Labor, 200 industry. Department of Labor (DOL) officials observed industry practices and Constitution Avenue NW., Washington, officials interviewed several did not uncover any specific evidence of DC 20210; telephone: (202) 693–4843; international and Indian non- forced child labor in India’s carpet fax: (202) 693–4830. governmental organizations about industry. forced child labor in the carpet industry VI. Background IV. Extended Public Comment Period following the initial determination, The first EO List was published on including during a visit to India in May On June 17, 2016, DOL reopened and January 18, 2001. 66 FR 5353. The EO 2015. While some of these entities extended the period for public List was subsequently revised on July stated that there is forced child labor in comments until July 15, 2016, to allow 20, 2010, 75 FR 42164; on May 31, 2011, this industry, they were unable to the public to view and comment on all 76 FR 31365; on April 3, 2012, 77 FR provide specific information on the information submitted or gathered since 20051; and on July 23, 2013, 78 FR number of children involved. One stated the initial determination, and to 44158. that such practices occurred, but that comment generally on whether carpets Executive Order 13126, which was the prevalence had decreased. However, from India should be added to the EO published in the Federal Register on this assessment was not based on a List. 81 FR 39714. DOL received one June 16, 1999, 64 FR 32383, declared reliable data collection exercise and the comment during the extended public that it was ‘‘the policy of the United commenter was not able to provide comment period. The comment was States Government . . . that the information about the prevalence of submitted by the CEPC and explained executive agencies shall take forced child labor that may remain in why carpets from India should not be appropriate actions to enforce the laws the sector. added to the EO List. The comment is prohibiting the manufacture or DOL also collected several articles available for public viewing at http:// importation of goods, wares, articles, from local Indian newspapers reporting www.regulations.gov (reference Docket and merchandise mined, produced or on the rescue of children from hidden ID No. DOL–2014–0004). manufactured wholly or in part by forced or indentured child labor.’’ carpet production facilities where they V. Final Determination were making carpets and unable to Pursuant to Executive Order 13126, and leave. While these newspaper articles The Departments have carefully following public notice and comment, provide evidence that forced child labor reviewed, analyzed, and considered the DOL published in the January 18, 2001, occurs in the production of carpets, they evidence available in determining Federal Register a list of products, do not demonstrate that forced child whether to add carpets from India to the identified by their country of origin, that labor is occurring in more than isolated EO List. In so doing, the Departments DOL, in consultation and cooperation incidents. These types of incidents have considered and weighed the factors with DOS and the Department of the been reported infrequently in local identified in the Procedural Guidelines Treasury (relevant responsibilities now newspapers, have involved a small for the Maintenance of the List of within DHS), had a reasonable basis to number of children, and have been Products Requiring Federal Contractor believe might have been mined, limited to one administrative district Certification as to Forced or Indentured produced or manufactured by forced or within India. Child Labor (available at http:// indentured child labor. 66 FR 5353. Following the initial determination webapps.dol.gov/FederalRegister/ Pursuant to Section 3 of Executive and during the May 2015 trip to India, PdfDisplay.aspx?DocId=18024), Order 13126, the Federal Acquisition the Government of India and the CEPC including the nature of information Regulatory Council published a final submitted additional comments and met presented, the source of information, the rule in the Federal Register on January with DOL officials explaining why date of the information, the extent of 18, 2001, providing, amongst other carpets produced in India should not be corroboration of the information by requirements, that federal contractors added to the EO List. The CEPC also appropriate sources, whether the who supply products that appear on the submitted an additional study it had information involved more than isolated EO List must certify to the contracting commissioned in 2015 in which incidents, and whether recent and officer that the contractor, or, in the case children working in the carpet industry credible efforts are being made to of an incorporated contractor, a were interviewed. The study concluded address forced or indentured child labor responsible official of the contractor, that there were no instances of forced in the country and industry. 66 FR 5352. has made a good faith effort to child labor among the children The Departments therefore conclude determine whether forced or indentured interviewed because there was no that the available evidence at this time child labor was used to mine, produce, restriction on ability to leave does not meet the criteria required to or manufacture any product furnished employment, nor any underpayment of add this product to the EO List. While under the contract and that, on the basis minimum wage. Based on the findings there is evidence of forced child labor of those efforts, the contractor is of this study, the CEPC maintained that in the industry, there is not sufficient unaware of any such use of child labor. there is no evidence of forced child evidence at this time demonstrating that 48 CFR Subpart 22.15. labor in the production or manufacture children are subject to forced labor in DOL also published on January 18, of this good. However, the survey circumstances that represent more than 2001, ‘‘Procedural Guidelines for the methodology of this study also had isolated incidents. We will continue to Maintenance of the List of Products sampling and questionnaire design monitor this situation and gather Requiring Federal Contractor limitations that affected its ability to information through our ongoing Certification as to Forced or Indentured capture forced labor or collect data on research process. Child Labor’’ (‘‘Procedural Guidelines’’),
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which provide for maintaining, requirements on respondents can be shaft, and whether all or part of the reviewing, and, as appropriate, revising properly assessed. Currently, the Mine work will be performed by a contractor; the EO List. 66 FR 5351. The Procedural Safety and Health Administration the elevation, depth and dimensions of Guidelines provide that the EO List may (MSHA) is soliciting comments on the the slope or shaft; the location and be revised either through consideration information collection for Slope and elevation of the coalbed; the general of submissions by individuals or on the Shaft Sinking Plans, 30 CFR 77.1900 characteristics of the strata through initiative of DOL, DOS and DHS. In (pertains to surface work areas of which the slope or shaft will be either event, when proposing to revise underground coal mines). developed; the type of equipment which the EO List, DOL must publish in the DATES: All comments must be received the operator proposes to use; the system Federal Register a notice of initial on or before December 2, 2016. of ventilation to be used; and safeguards determination, which includes any ADDRESSES: Comments concerning the for the prevention of caving during proposed alteration to the EO List. DOL, information collection requirements of excavation. DOS and DHS consider all public this notice may be sent by any of the II. Desired Focus of Comments comments prior to the publication of a methods listed below. final determination of a revised EO List. • Federal E-Rulemaking Portal: MSHA is soliciting comments concerning the proposed information III. Definitions http://www.regulations.gov. Follow the on-line instructions for submitting collection related to Slope and Shaft Under Section 6(c) of EO 13126: comments for docket number MSHA– Sinking Plans, 30 CFR 77.1900 (pertains ‘‘Forced or indentured child labor’’ 2016–0034. to surface work areas of underground means all work or service— • Regular Mail: Send comments to coal mines). MSHA is particularly (1) Exacted from any person under the USDOL–MSHA, Office of Standards, interested in comments that: • age of 18 under the menace of any Regulations, and Variances, 201 12th Evaluate whether the collection of penalty for its nonperformance and for Street South, Suite 4E401, Arlington, VA information is necessary for the proper which the worker does not offer himself 22202–5452. performance of the functions of the voluntarily; or • Hand Delivery: USDOL-Mine Safety agency, including whether the (2) Performed by any person under and Health Administration, 201 12th information has practical utility; • the age of 18 pursuant to a contract the Street South, Suite 4E401, Arlington, VA Evaluate the accuracy of MSHA’s enforcement of which can be 22202–5452. Sign in at the receptionist’s estimate of the burden of the collection accomplished by process or penalties. desk on the 4th floor via the East of information, including the validity of Signed at Washington, DC, this 22th day of elevator. the methodology and assumptions used; September, 2016. • Suggest methods to enhance the FOR FURTHER INFORMATION CONTACT: Carol Pier, quality, utility, and clarity of the Sheila McConnell, Director, Office of information to be collected; and Deputy Undersecretary for International Standards, Regulations, and Variances, • Affairs. Minimize the burden of the MSHA, at [FR Doc. 2016–23500 Filed 9–30–16; 8:45 am] collection of information on those who [email protected] are to respond, including through the BILLING CODE 4510–28–P (email); 202–693–9440 (voice); or 202– use of appropriate automated, 693–9441 (facsimile). electronic, mechanical, or other DEPARTMENT OF LABOR SUPPLEMENTARY INFORMATION: technological collection techniques or I. Background other forms of information technology, Mine Safety and Health Administration e.g., permitting electronic submission of Section 103(h) of the Federal Mine responses. [OMB Control No. 1219–0019] Safety and Health Act of 1977 (Mine The information collection request Act), 30 U.S.C. 813(h), authorizes Proposed Extension of Information will be available on http:// MSHA to collect information necessary www.regulations.gov. MSHA cautions Collection; Slope and Shaft Sinking to carry out its duty in protecting the Plans, 30 CFR 77.1900 (Pertains to the commenter against providing any safety and health of miners. information in the submission that Surface Work Areas of Underground Title 30 CFR 77.1900 requires Coal Mines) should not be publicly disclosed. Full underground coal mine operators to comments, including personal AGENCY: Mine Safety and Health submit for approval a plan that will information provided, will be made Administration, Labor. provide for the safety of workmen in available on www.regulations.gov and ACTION: Request for public comments. each slope or shaft that is commenced www.reginfo.gov. or extended from the surface to the The public may also examine publicly SUMMARY: The Department of Labor, as underground coal mine. Each slope or available documents at USDOL-Mine part of its continuing effort to reduce shaft sinking operation is unique in that Safety and Health Administration, 20 paperwork and respondent burden, each operator uses different methods 12th South, Suite 4E401, Arlington, VA conducts a pre-clearance consultation and equipment and encounters different 22202–5452. Sign in at the receptionist’s program to provide the general public geological strata which make it desk on the 4th floor via the East and Federal agencies with an impossible for a single set of regulations elevator. opportunity to comment on proposed to ensure the safety of the miners under Questions about the information collections of information in accordance all circumstances. This makes an collection requirements may be directed with the Paperwork Reduction Act of individual slope or shaft sinking plan to the person listed in the FOR FURTHER 1995, 44 U.S.C. 3506(c)(2)(A). This necessary. The plan must be consistent INFORMATION section of this notice. program helps to assure that requested with prudent engineering design. Plans data can be provided in the desired include the name and location of the III. Current Actions format, reporting burden (time and mine; name and address of the mine This request for collection of financial resources) is minimized, operator; a description of the information contains provisions for collection instruments are clearly construction work and methods to be Slope and Shaft Sinking Plans, 30 CFR understood, and the impact of collection used in construction of the slope or 77.1900 (pertains to surface work areas
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of underground coal mines). MSHA has the requested accommodations cannot and training needs of veterans; updated the data with respect to the be guaranteed. The meeting site is determining the extent to which the number of respondents, responses, accessible to individuals with programs and activities of the U.S. burden hours, and burden costs disabilities. This Notice also describes Department of Labor meet these needs; supporting this information collection the functions of the ACVETEO. Notice assisting to conduct outreach to request. of this meeting is required under employers seeking to hire veterans; Type of Review: Extension, without Section 10(a)(2) of the Federal Advisory making recommendations to the change, of a currently approved Committee Act. This document is Secretary, through the Assistant collection. intended to notify the general public. Secretary for VETS, with respect to Agency: Mine Safety and Health DATE AND TIME: Wednesday, October 26, outreach activities and employment and Administration. 2016 beginning at 9:00 a.m. and ending training needs of Veterans; and carrying OMB Number: 1219–0019. at approximately 3:00 p.m. (EST). out such other activities necessary to Affected Public: Business or other for- ADDRESSES: The meeting will take place make required reports and profit. at the U.S. Department of Labor, Frances recommendations. The ACVETEO meets Number of Respondents: 27. Perkins Building, 200 Constitution at least quarterly. Frequency: On occasion. Number of Responses: 80. Avenue NW., Washington, DC 20210, Agenda Annual Burden Hours: 1,600 hours. Conference Room N–4437 A & B. Members of the public are encouraged 9:00 a.m. Welcome and remarks, Annual Respondent or Recordkeeper Michael Michaud, Assistant Cost: $60. to arrive early to allow for security clearance into the Frances Perkins Secretary for Veterans Employment Comments submitted in response to and Training Service this notice will be summarized and Building. Security Instructions: Meeting 9:15 a.m. Administrative Business, included in the request for Office of Mika Cross, Designated Federal Management and Budget approval of the participants should use the visitors’ entrance to access the Frances Perkins Official information collection request; they will 9:20 a.m. Transition and Training also become a matter of public record. Building, one block north of Constitution Avenue at 3rd and C Subcommittee Briefing and Sheila McConnell, Streets NW. For security purposes Discussion on Fiscal Year 2016 Certifying Officer. meeting participants must: recommendations 10:20 a.m. Barriers to Employment [FR Doc. 2016–23768 Filed 9–30–16; 8:45 am] 1. Present a valid photo ID to receive Subcommittee Briefing and BILLING CODE 4510–43–P a visitor badge. 2. Know the name of the event being Discussion on Fiscal Year 2016 attended: The meeting event is the recommendations DEPARTMENT OF LABOR Advisory Committee on Veterans’ 11:20 p.m. Break Employment, Training and Employer 11:30 p.m. Direct Services Veterans’ Employment and Training Outreach (ACVETEO). Subcommittee briefing and Service 3. Visitor badges are issued by the discussion on Fiscal Year 2016 security officer at the Visitor Entrance recommendations Advisory Committee on Veterans’ located at 3rd and C Streets NW. When 12:30 p.m. Lunch Employment, Training and Employer receiving a visitor badge, the security 1:30 p.m. Committee finalize Outreach (ACVETEO): Meeting officer will retain the visitor’s photo ID recommendations for the Fiscal Year 2016 Annual Report to AGENCY: Veterans’ Employment and until the visitor badge is returned to the security desk. Congress Training Service (VETS), Department of 2:45 p.m. Break Labor. 4. Laptops and other electronic devices may be inspected and logged for 2:45 p.m. Public Forum, Mika Cross, ACTION: Notice of open meeting. identification purposes. Designated Federal Official SUMMARY: This notice sets forth the 5. Due to limited parking options, 3:00 p.m. Adjourn schedule and proposed agenda of a Metro’s Judiciary Square station is the Signed in Washington, DC, this 26th forthcoming meeting of the ACVETEO. easiest way to access the Frances day of September, 2016. The ACVETEO will discuss the DOL Perkins Building. Teresa W. Gerton, core programs and services that assist Notice of Intent To Attend the Meeting: All meeting participants are Deputy Assistant Secretary for Policy, veterans seeking employment and raise Veterans’ Employment and Training Service. employer awareness as to the being asked to submit a notice of intent to attend by Wednesday, October 19, [FR Doc. 2016–23721 Filed 9–30–16; 8:45 am] advantages of hiring veterans. There BILLING CODE 4510–79–P will be an opportunity for individuals or 2016, via email to Mr. Gregory Green at organizations to address the committee. [email protected], subject line ‘‘October 2016 ACVETEO Meeting.’’ Any individual or organization that NATIONAL AERONAUTICS AND FOR FURTHER INFORMATION CONTACT: Mr. wishes to do so should contact Mr. SPACE ADMINISTRATION Gregory Green at 202–693–4734. Gregory Green, Assistant Designated Individuals who will need Federal Official for the ACVETEO, (202) [Notice: (16–070)] accommodations for a disability in order 693–4734. to attend the meeting (e.g., interpreting SUPPLEMENTARY INFORMATION: The International Space Station Advisory services, assistive listening devices, ACVETEO is a Congressionally Committee; Charter Renewal and/or materials in alternative format) mandated advisory committee AGENCY: National Aeronautics and should notify the Advisory Committee authorized under Title 38, U.S. Code, Space Administration (NASA). no later than Wednesday, October 19, Section 4110 and subject to the Federal ACTION: Notice of renewal of charter of 2016 by contacting Mr. Gregory Green at Advisory Committee Act, 5 U.S.C. App. the International Space Station 202–693–4734. Requests made after this 2, as amended. The ACVETEO is Advisory Committee. date will be reviewed, but availability of responsible for: Assessing employment
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SUMMARY: Pursuant to sections 14(b)(1) There also will be the following NATIONAL SCIENCE FOUNDATION and 9(c) of the Federal Advisory presentations (times are approximate): Committee Act (Pub. L. 92–463), and from 9:30 a.m. to 10:00 a.m.— Sunshine Act Meeting; National after consultation with the Committee Presentation on the New Museum Science Board Management Secretariat, General innovation incubator programs (Lisa The National Science Board’s Services Administration, the NASA Phillips, Director of the New Museum); Committee on Programs and Plans Administrator has determined that the from 10:00 a.m. to 10:30 a.m.— (CPP), pursuant to NSF regulations (45 renewal of the charter of the Presentation on NEXUS of Engineering CFR part 614), the National Science International Space Station Advisory and the Arts at the University of Iowa Foundation Act, as amended (42 U.S.C. Committee is in the public interest in (Deanne Wortman, Director of NEXUS 1862n–5), and the Government in the connection with the performance of Engineering and Art); from 10:30 a.m.– Sunshine Act (5 U.S.C. 552b), hereby duties imposed on NASA by law. The 11:00 a.m.—Presentation on therapeutic gives notice of the scheduling of a renewed charter is for a one-year period music for the aging population (Dan teleconference for the transaction of ending September 30, 2017. Cohen, Founder and Executive Director National Science Board business, as FOR FURTHER INFORMATION CONTACT: Mr. of Music & Memory); from 11:00 a.m.- follows: Patrick Finley, Executive Secretary, 11:30 a.m.—Presentation on the DATE AND TIME: International Space Station Advisory Wednesday, October 5, Founding of Kickstarter (Yancey Committee, Office of International and 2016 from 11 a.m. to 12:00 p.m. EDT. Strickler, Co-Founder and CEO of Interagency Relations, NASA SUBJECT MATTER: (1) Committee Chair’s Headquarters, Washington, DC 20546; Kickstarter). From 11:30–11:45 a.m. Opening Remarks; (2) Discussion of phone (202) 358–5684; email there will be concluding remarks from Facility Roles and Responsibilities; and [email protected]. the Chairman and announcement of (3) Future CPP Activities. voting results. The meeting will adjourn STATUS: Open. Patricia D. Rausch, at 11:45 a.m. This meeting will be held by Advisory Committee Management Officer, The meeting also will be webcast. To teleconference at the National Science National Aeronautics and Space Foundation, 4201Wilson Blvd., Administration. register to watch the webcasting of this Arlington, VA 22230. A public audio [FR Doc. 2016–23871 Filed 9–30–16; 8:45 am] open session, go to: https:// www.arts.gov/event/2016/national- stream will be available for this meeting. BILLING CODE 7510–13–P council-arts-october-2016-public- Request the link by contacting meeting. [email protected] at least 24 hours prior to the teleconference. Please NATIONAL FOUNDATION ON THE If, in the course of the open session refer to the National Science Board Web ARTS AND THE HUMANITIES discussion, it becomes necessary for the site for additional information and Council to discuss non-public schedule updates (time, place, subject National Endowment for the Arts commercial or financial information of matter or status of meeting) which may intrinsic value, the Council will go into National Council on the Arts 189th be found at http://www.nsf.gov/nsb/ closed session pursuant to subsection Meeting notices/. The point of contact for this (c)(4) of the Government in the meeting is Elise Lipkowitz, 4201Wilson AGENCY: National Endowment for the Sunshine Act, 5 U.S.C. 552b, and in Blvd., Arlington, VA 22230. Telephone: Arts, National Foundation on the Arts accordance with the February 15, 2012 (703) 292–7000. and Humanities. determination of the Chairman. Chris Blair, ACTION: Notice of meeting, Additionally, discussion concerning purely personal information about Executive Assistant to the NSB Office. SUMMARY: Pursuant to section 10 (a) (2) individuals, such as personal [FR Doc. 2016–23927 Filed 9–29–16; 11:15 am] of the Federal Advisory Committee Act biographical and salary data or medical BILLING CODE 7555–01–P (Pub. L. 92–463), as amended, notice is information, may be conducted by the hereby given that a meeting of the National Council on the Arts will be Council in closed session in accordance with subsection (c)(6) of 5 U.S.C. 552b. NUCLEAR REGULATORY held in Conference Rooms A & B at COMMISSION Constitution Center, 400 7th St. SW., Any interested persons may attend, as Washington, DC 20506. Agenda times observers, Council discussions and [NRC–2016–0001] are approximate. reviews that are open to the public. If DATES: Friday, October 28, 2016 from you need special accommodations due Sunshine Act Meeting 9:00 a.m. to 11:45 a.m. to a disability, please contact the Office DATE: October 3, 10, 17, 24, 31, of Accessibility, National Endowment FOR FURTHER INFORMATION CONTACT: November 7, 2016. Office of Public Affairs, National for the Arts, 1100 Pennsylvania Avenue PLACE: Commissioners’ Conference Endowment for the Arts, Washington, NW., Washington, DC 20506, 202/682– Room, 11555 Rockville Pike, Rockville, DC 20506, at 202/682–5570. 5733, Voice/T.T.Y. 202/682–5496, at Maryland. SUPPLEMENTARY INFORMATION: The least seven (7) days prior to the meeting. STATUS: Public and Closed. meeting, on October 28th in Conference Dated: September 28, 2016. Rooms A & B, from 9:30 a.m. to 11:45 Kathy Plowitz-Worden, Week of October 3, 2016 a.m., will be open to the public on a space available basis. The tentative Panel Coordinator, Office of Guidelines and Wednesday, October 5, 2016 Panel Operations. agenda is as follows: The meeting will 9:00 a.m. Hearing on Combined begin at 9:00 a.m. with opening remarks [FR Doc. 2016–23842 Filed 9–30–16; 8:45 am] Licenses for William States Lee III and voting on recommendations for BILLING CODE 7537–01–P Nuclear Station, Units 1 and 2: funding and rejection and guidelines, Section 189a. of the Atomic Energy followed by updates from the Chairman. Act Proceeding (Public Meeting);
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(Contact: Brian Hughes: 301–415– at: http://www.nrc.gov/public-involve/ changed or eliminated, we will provide 6582) public-meetings/schedule.html. notice of that action, and publish a This meeting will be webcast live at * * * * * description of the revised SOR for the Web address—http://www.nrc.gov/. The NRC provides reasonable further comment. accommodation to individuals with Thursday, October 6, 2016 FOR FURTHER INFORMATION CONTACT: disabilities where appropriate. If you Janine Castorina, Chief Privacy Officer, 10:00 a.m. Meeting with Advisory need a reasonable accommodation to Privacy and Records Office, United Committee on Reactor Safeguards participate in these public meetings, or States Postal Service, 475 L’Enfant Plaza (ACRS) (Public Meeting); (Contact: need this meeting notice or the SW., Room 1P830, Washington, DC Mark Banks: 301–415–3718) transcript or other information from the 20260–0004, telephone 202–268–3069, This meeting will be webcast live at public meetings in another format (e.g., or [email protected]. braille, large print), please notify the Web address—http://www.nrc.gov/. SUPPLEMENTARY INFORMATION: On August Week of October 10, 2016—Tentative Kimberly Meyer, NRC Disability 25, 2016, the Postal Service published There are no meetings scheduled for Program Manager, at 301–287–0739, by the week of October 10, 2016. notice of its intent to establish a new videophone at 240–428–3217, or by system of records to support an Week of October 17, 2016—Tentative email at Kimberly.Meyer-Chambers@ expansion of its Informed DeliveryTM nrc.gov. Determinations on requests for Tuesday, October 18, 2016 service (81 FR 58542). (Informed reasonable accommodation will be DeliveryTM is a digital service that 9:30 a.m. Strategic Programmatic made on a case-by-case basis. allows enrolled users to receive an Overview of the Decommissioning * * * * * email notification that contains and Low-Level Waste and Spent Members of the public may request to grayscale images of the outside of their Fuel Storage and Transportation receive this information electronically. letter-sized mailpieces processed by Business Lines (Public Meeting); If you would like to be added to the USPS automation equipment prior to (Contact: Janelle Jessie: 301–415– distribution, please contact the Nuclear delivery. This service is offered at no 6775) Regulatory Commission, Office of the cost to the consumer.) In response to This meeting will be webcast live at Secretary, Washington, DC 20555 (301– this notice, we received comments that the Web address—http://www.nrc.gov/. 415–1969), or email generally supported the concept of the [email protected] or Thursday, October 20, 2016 new SOR, but expressed desire for more [email protected]. specific information regarding the types 9:30 a.m. Strategic Programmatic Dated:September 28, 2016. of data to be collected by the system, Overview of the New Reactors Denise L. McGovern, and the potential uses (or abuses) of that Business Line (Public Meeting); Policy Coordinator, Office of the Secretary. information. (Contact: Donna Williams: 301– [FR Doc. 2016–23919 Filed 9–29–16; 11:15 am] 415–1322) Stanley F. Mires, BILLING CODE 7590–01–P This meeting will be webcast live at Attorney, Federal Compliance. the Web address—http://www.nrc.gov/. [FR Doc. 2016–23756 Filed 9–30–16; 8:45 am] BILLING CODE 7710–12–P Week of October 24, 2016—Tentative POSTAL SERVICE Thursday, October 27, 2016 Privacy Act of 1974; System of POSTAL SERVICE 10:00 a.m. Program Review of Part 37 Records of Title 10 of the Code of Federal AGENCY: Postal Service®. Product Change—Priority Mail and Regulations (10 CFR part 37) for the ACTION: Notice of establishment of new First-Class Package Service Protection of Risk-Significant Negotiated Service Agreement Quantities of Radioactive Material system of records; suspension of (Public Meeting); (Contact: George implementation date. AGENCY: Postal ServiceTM. Smith: 301–415–7201) SUMMARY: The United States Postal ACTION: Notice. This meeting will be webcast live at Service® (Postal Service) is temporarily the Web address—http://www.nrc.gov/. delaying the implementation date for SUMMARY: The Postal Service gives notice of filing a request with the Postal Week of October 31, 2016—Tentative establishing a new Customer Privacy Act System of Records (SOR) to support Regulatory Commission to add a Friday, November 4, 2016 the Informed DeliveryTM service. This domestic shipping services contract to delay will enable the Postal Service to the list of Negotiated Service 10:00 a.m. Briefing on Security Issues Agreements in the Mail Classification (Closed Ex. 1) review and evaluate public comments, and determine if substantive changes to Schedule’s Competitive Products List. Week of November 7, 2016—Tentative the proposed system are advisable or DATES: Effective date: October 3, 2016. There are no meetings scheduled for necessary. FOR FURTHER INFORMATION CONTACT: the week of November 7, 2016. DATES: This system was previously Elizabeth A. Reed, 202–268–3179. * * * * * scheduled to become effective on SUPPLEMENTARY INFORMATION: The The schedule for Commission September 26, 2016. In view of United States Postal Service® hereby meetings is subject to change on short comments received in advance of that gives notice that, pursuant to 39 U.S.C. notice. For more information or to verify date, the Postal Service has determined 3642 and 3632(b)(3), on September 27, the status of meetings, contact Denise that it would be appropriate to delay the 2016, it filed with the Postal Regulatory McGovern at 301–415–0681 or via email implementation of the SOR in its Commission a Request of the United at [email protected]. entirety while we consider what, if any, States Postal Service to Add Priority * * * * * substantive changes may be required. If Mail & First-Class Package Service The NRC Commission Meeting the Postal Service determines that Contract 33 to Competitive Product List. Schedule can be found on the Internet certain portions of this SOR should be Documents are available at
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www.prc.gov, Docket Nos. MC2016–210, States Postal Service to Add Priority on the existing collection of information CP2016–299. Mail Express & Priority Mail Contract 36 provided for in Regulation S–AM (17 to Competitive Product List. Documents CFR part 248, subpart B), under the Fair Stanley F. Mires, are available at www.prc.gov, Docket Credit Reporting Act (15 U.S.C. 1681 et Attorney, Federal Compliance. Nos. MC2016–207, CP2016–296. seq.) (‘‘FCRA’’), the Securities Exchange [FR Doc. 2016–23757 Filed 9–30–16; 8:45 am] Act of 1934 (15 U.S.C. 78a et seq.), the Stanley F. Mires, BILLING CODE 7710–12–P Investment Company Act of 1940 (15 Attorney, Federal Compliance. U.S.C. 80a–1 et seq.), and the [FR Doc. 2016–23745 Filed 9–30–16; 8:45 am] Investment Advisers Act of 1940 (15 POSTAL SERVICE BILLING CODE 7710–12–P U.S.C. 80b–1 et seq.). The Commission plans to submit this existing collection Product Change—Priority Mail Express of information to the Office of Negotiated Service Agreement POSTAL SERVICE Management and Budget (‘‘OMB’’) for AGENCY: TM extension and approval. Postal Service . Product Change—Priority Mail and ACTION: Notice. Regulation S–AM implements the First-Class Package Service requirements of Section 624 of the SUMMARY: The Postal Service gives Negotiated Service Agreement FCRA (15 U.S.C. 1681s–3) with respect notice of filing a request with the Postal AGENCY: Postal ServiceTM. to investment advisers and transfer Regulatory Commission to add a agents registered with the Commission, ACTION: Notice. domestic shipping services contract to as well as brokers, dealers and the list of Negotiated Service SUMMARY: The Postal Service gives investment companies (collectively, Agreements in the Mail Classification notice of filing a request with the Postal ‘‘Covered Persons’’). Section 624 and Schedule’s Competitive Products List. Regulatory Commission to add a Regulation S–AM limit a Covered DATES: Effective date: October 3, 2016. domestic shipping services contract to Person’s use of certain consumer FOR FURTHER INFORMATION CONTACT: the list of Negotiated Service financial information received from an Elizabeth A. Reed, 202–268–3179. Agreements in the Mail Classification affiliate to solicit a consumer for marketing purposes, unless the SUPPLEMENTARY INFORMATION: The Schedule’s Competitive Products List. ® consumer has been given notice and a United States Postal Service hereby DATES: Effective date: October 3, 2016. reasonable opportunity and a reasonable gives notice that, pursuant to 39 U.S.C. FOR FURTHER INFORMATION CONTACT: 3642 and 3632(b)(3), on September 27, and simple method to opt out of such Elizabeth A. Reed, 202–268–3179. solicitations. Regulation S–AM 2016, it filed with the Postal Regulatory SUPPLEMENTARY INFORMATION: The potentially applies to all of the Commission a Request of the United ® United States Postal Service hereby approximately 32,061 Covered Persons States Postal Service to Add Priority gives notice that, pursuant to 39 U.S.C. registered with the Commission, Mail Express Contract 42 to Competitive 3642 and 3632(b)(3), on September 27, although only approximately 17,954 of Product List. Documents are available at 2016, it filed with the Postal Regulatory them have one or more corporate www.prc.gov, Docket Nos. MC2016–208, Commission a Request of the United affiliates, and the regulation requires CP2016–297. States Postal Service to Add Priority only approximately 3,206 to provide Stanley F. Mires, Mail & First-Class Package Service consumers with an affiliate marketing Attorney, Federal Compliance. Contract 32 to Competitive Product List. notice and an opt-out opportunity. [FR Doc. 2016–23744 Filed 9–30–16; 8:45 am] Documents are available at The Commission staff estimates that www.prc.gov, Docket Nos. MC2016–209, there are approximately 17,954 Covered BILLING CODE 7710–12–P CP2016–298. Persons having one or more affiliates, and that they each spend an average of Stanley F. Mires, POSTAL SERVICE 0.20 hours per year to review affiliate Attorney, Federal Compliance. marketing practices, for, collectively, an Product Change—Priority Mail Express [FR Doc. 2016–23742 Filed 9–30–16; 8:45 am] estimated annual time burden of 3,591 and Priority Mail Negotiated Service BILLING CODE 7710–12–P hours at an annual internal staff cost of Agreement approximately $1,798,991. The staff also estimates that approximately 3,206 TM AGENCY: Postal Service . SECURITIES AND EXCHANGE Covered Persons provide notice and opt- ACTION: Notice. COMMISSION out opportunities to consumers, and that they each spend an average of 7.6 SUMMARY: The Postal Service gives Proposed Collection; Comment hours per year creating notices, notice of filing a request with the Postal Request providing notices and opt-out Regulatory Commission to add a opportunities, monitoring the opt-out domestic shipping services contract to Upon Written Request, Copies Available notice process, making and updating the list of Negotiated Service From: Securities and Exchange records of opt-out elections, and Agreements in the Mail Classification Commission, Office of FOIA Services, addressing consumer questions and Schedule’s Competitive Products List. 100 F Street NE., Washington, DC 20549–2736 concerns about opt-out notices, for, DATES: Effective date: October 3, 2016. collectively, an estimated annual time FOR FURTHER INFORMATION CONTACT: Extension: burden of 24,366 hours at an annual Elizabeth A. Reed, 202–268–3179. Regulation S–AM; SEC File No. 270–548, internal staff cost of approximately SUPPLEMENTARY INFORMATION: The OMB Control No. 3235–0609. $4,489,806. Thus, the staff estimates United States Postal Service® hereby Notice is hereby given that, pursuant that the collection of information gives notice that, pursuant to 39 U.S.C. to the Paperwork Reduction Act of 1995 requires a total of approximately 17,954 3642 and 3632(b)(3), on September 27, (‘‘PRA’’) (44 U.S.C. 3501 et seq.), the respondents to incur an estimated 2016, it filed with the Postal Regulatory Securities and Exchange Commission annual time burden of a total of 27,957 Commission a Request of the United (‘‘Commission’’) is soliciting comments hours at a total annual internal cost of
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compliance of approximately Section 17(a)(1) of the Exchange Act Officer, Securities and Exchange $6,288,897. provides that broker-dealers registered Commission, c/o Remi Pavlik-Simon, Written comments are invited on: (a) with the Commission must make and 100 F Street NE., Washington, DC 20549 Whether the proposed collection of keep records, furnish copies of the or by sending an email to: PRA_ information is necessary for the proper records, and make and disseminate [email protected]. Comments must be performance of the functions of the reports as the Commission, by rule, submitted within 30 days of this notice. Commission, including whether the prescribes. Pursuant to this authority, Dated: September 27, 2016. information shall have practical utility; the Commission adopted Rule 17a–5 (17 Robert W. Errett, CFR 240.17a–5), which is one of the (b) the accuracy of the Commission’s Deputy Secretary. primary financial and operational estimates of the burden of the proposed [FR Doc. 2016–23758 Filed 9–30–16; 8:45 am] collection of information; (c) ways to reporting rules for broker-dealers.1 BILLING CODE 8011–01–P enhance the quality, utility, and clarity Paragraph (a)(5) of Rule 17a–5 requires of the information collected; and (d) every broker-dealer registered with the Commission to file Form Custody (17 ways to minimize the burden of the SECURITIES AND EXCHANGE CFR 249.639) with its designated collection of information on COMMISSION respondents, including through the use examining authority (‘‘DEA’’) within 17 of automated collection techniques or business days after the end of each [Release No. 34–78946; File No. SR–BOX– 2016–45] other forms of information technology. calendar quarter and within 17 business days after the date selected for the Consideration will be given to Self-Regulatory Organizations; BOX comments and suggestions submitted in broker-dealer’s annual report if that date is not the end of a calendar quarter. Options Exchange LLC; Notice of writing within 60 days of this Filing of Proposed Rule Change To publication. Form Custody is designed to elicit information about whether a broker- Amend the Treatment of Quotes To An agency may not conduct or dealer maintains custody of customer Provide That All Quotes on BOX Are sponsor, and a person is not required to and non-customer assets, and, if so, how Liquidity Adding Only respond to, a collection of information such assets are maintained. September 27, 2016. under the PRA unless it displays a There are approximately 4,113 broker- currently valid OMB control number. Pursuant to Section 19(b)(1) of the dealers registered with the Commission. Securities Exchange Act of 1934 Please direct your written comments Based on staff experience, the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 to: Pamela Dyson, Director/Chief Commission estimates that, on average, notice is hereby given that on Information Officer, Securities and it would take a broker-dealer September 13, 2016, BOX Options Exchange Commission, c/o Remi Pavlik- approximately 12 hours to complete and Exchange LLC (the ‘‘Exchange’’) filed Simon, 100 F Street NE., Washington, file Form Custody, for an annual with the Securities and Exchange DC 20549, or send an email to: industry-wide reporting burden of Commission (‘‘Commission’’) the [email protected]. 2 approximately 197,424 hours. proposed rule change as described in Dated: September 27, 2016. Assuming an average cost per hour of Items I, II, and III below, which Items Robert W. Errett, approximately $291for a compliance have been prepared by the self- Deputy Secretary. manager, the total internal cost of regulatory organization. The compliance for the respondents is Commission is publishing this notice to [FR Doc. 2016–23762 Filed 9–30–16; 8:45 am] approximately $57,450,384 per year.3 BILLING CODE 8011–01–P solicit comments on the proposed rule An agency may not conduct or from interested persons. sponsor, and a person is not required to respond to, a collection of information I. Self-Regulatory Organization’s SECURITIES AND EXCHANGE under the PRA unless it displays a Statement of the Terms of Substance of COMMISSION currently valid OMB control number. the Proposed Rule Change Submission for OMB Review; The public may view background The Exchange proposes to amend Comment Request documentation for this information Rule 8050 to amend the treatment of collection at the following Web site: quotes to provide that all quotes on BOX Upon Written Request, Copies Available www.reginfo.gov. Comments should be are liquidity adding only. The text of the From: Securities and Exchange directed to (i) Desk Officer for the proposed rule change is available from Commission, Office of FOIA Services, Securities and Exchange Commission, the principal office of the Exchange, at 100 F Street NE., Washington, DC Office of Information and Regulatory the Commission’s Public Reference 20549–2736. Affairs, Office of Management and Room and also on the Exchange’s Budget, Room 10102, New Executive Extension: Form Custody Internet Web site at http:// Office Building, Washington, DC 20503 boxexchange.com. SEC File No. 270–643, OMB Control No. _ 3235–0691 or by sending an email to: Shagufta [email protected]; and (ii) Pamela II. Self-Regulatory Organization’s Notice is hereby given that pursuant Dyson, Director/Chief Information Statement of the Purpose of, and to the Paperwork Reduction Act of 1995 Statutory Basis for, the Proposed Rule (44 U.S.C. 3501 et seq.) (‘‘PRA’’), the 1 Rule 17a–5 is subject to a separate PRA filing Change Securities and Exchange Commission (OMB Control Number 3235–0123). In its filing with the Commission, the (‘‘Commission’’) has submitted to the 2 4,113 brokers-dealers × 4 times per year × 12 hours = 197,424 hours. self-regulatory organization included Office of Management and Budget 3 197,424 hours times $291 per hour = statements concerning the purpose of, (‘‘OMB’’) a request for approval of the 57,450,384. $291 per hour for a compliance and basis for, the proposed rule change extension of the previously approved manager is from SIFMA’s Management & and discussed any comments it received collection of information provided for in Professional Earnings in the Securities Industry on the proposed rule change. The text 2013, modified by Commission staff for an 1800- Form Custody (17 CFR 249.639) under hour work-year, multiplied by 5.35 to account for the Securities Exchange Act of 1934 (15 bonuses, firm size, employee benefits, and 1 15 U.S.C. 78s(b)(1). U.S.C. 78a et seq.) (‘‘Exchange Act’’). overhead, and adjusted for inflation. 2 17 CFR 240.19b–4.
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of these statements may be examined at the market.8 This proposal will benefit quotes after they interact with the PIP the places specified in Item IV below. market participants as it has the Order. The self-regulatory organization has potential to provide for more robust The Exchange will provide prepared summaries, set forth in quoting on the Exchange. The Exchange Participants with notice, via Information Sections A, B, and C below, of the most notes that Market Makers will still be Circular, about the implementation date significant aspects of such statements. able to execute against resting orders of this proposed change. and quotes on the BOX Book. A. Self-Regulatory Organization’s 2. Statutory Basis Statement of the Purpose of, and Specifically, a Market Maker can still Statutory Basis for, the Proposed Rule submit an order to execute against The Exchange believes that its 9 Change resting liquidity on the BOX Book. proposal is consistent with Section 6(b) Additionally, Market Makers will still of the Act 11 in general, and furthers the 1. Purpose be permitted to submit orders in and out objectives of Section 6(b)(5) of the Act 12 of their appointed classes. This will in particular, in that it is designed to The Exchange proposes to amend the promote just and equitable principles of treatment of incoming quotes to BOX so provide Market Makers with the ability to take liquidity on BOX. trade, to remove impediments to and that they are only accepted if they are perfect the mechanism of a free and 3 The proposed rule change also liquidity adding. Specifically, the open market and a national market Exchange is proposing that all quotes amends the treatment of incoming system, and, in general to protect and quote updates after the opening that quotes after they interact with the Price investors and the public interest. are submitted by Market Makers on the Improvement Period (‘‘PIP’’). Currently, In particular, the proposed change Exchange will only be accepted by the when an incoming quote is on the same will better align market making on BOX Trading Host 4 if they will add liquidity 10 side as a PIP Order, it may cause the with its intended purpose of providing to the BOX Book.5 PIP to end early, if, at the time of liquidity to the market. A Market Maker Currently, on the Exchange, an submission, the price of the incoming that is submitting quotes is doing so to incoming quote from a Market Maker quote satisfies certain criteria outlined create a market, not take a market. As can take liquidity. Specifically, an in Rule 7150(i). Under the proposal, the such, the Exchange believes that the incoming quote that is executable incoming quote will continue to cause proposed change will add value to against an interest on the BOX Book, the PIP to end early if the conditions of market making on BOX, which will whether it is a resting order or quote, Rule 7150(i) exist. However, after the benefit investors and the public, and will execute against such interest. The PIP is concluded, if the incoming quote therefore, the Exchange believes that the Exchange is now proposing that if an would execute against resting orders or proposed change will remove incoming quote or quote update is quotes on the BOX Book, it will be impediments to and perfect the marketable because it would execute rejected. Additionally, when an mechanism of a free and open market against a resting order or quote on the incoming quote on the opposite side of and a national market system. The BOX Book, it will be rejected. The the PIP Order is received such that it Exchange believes that if a Market Exchange will not reject incoming would cause an execution to occur prior Maker’s quote takes liquidity against the quotes during the opening of the to the end of the PIP, the incoming BOX Book, it was unintentional. If the market.6 Therefore, all quotes accepted quote shall be immediately executed Market Maker wanted to take the order by the Trading Host after the opening pursuant to Rule 7150(j). In order for the or quote on the BOX Book, he would do will be liquidity adding only. As is the incoming quote on the opposite side of so with an order, not a quote. As such, case today, rejected quotes will not be the PIP Order to execute against the PIP the Exchange believes that the proposed considered when determining a Market Order, the conditions of Rule 7150(j) rule change will remove impediments to Maker’s quoting obligations.7 must be met. Under the proposal, any and perfect the mechanism of a free and The Exchange believes that this remaining balance of the incoming open market and a national market proposed change will strengthen the quote that did not execute against the system. The Exchange notes that Market market at BOX and better align market PIP Order, and that would execute Makers will still be permitted to submit making activity with its intended against a resting order or quote on the orders in and out of their appointed purpose, which is to provide liquidity to BOX Book, will be rejected. The classes. This will provide Market Exchange is not proposing to change the Makers with the ability to take liquidity 3 See proposed IM–8050–3 to Rule 8050. interaction of an incoming quote with a on BOX. Lastly, Market Makers will still 4 The term ‘‘Trading Host’’ means the automated PIP Order; the Exchange is simply be subject to the obligations detailed in trading system used by BOX for the trading of clarifying how the proposal will affect BOX Rules 8040 and 8050. The options contracts. See Rule 100(a)(66). Exchange believes that the proposed 5 The term ‘‘Central Order Book’’ or ‘‘BOX Book’’ means the electronic book of orders on each single 8 The concept of having liquidity adding only changes have no material impact on a option series maintained by the BOX Trading Host. mechanisms available for market participants is not Market Maker’s obligations pursuant to See Rule 100(a)(10). a new one; other exchanges currently offer liquidity BOX Rules 8040 and 8050. 6 Transactions occurring on the opening are adding only order types. See International The Exchange believes that the deemed to neither add nor remove liquidity and Securities Exchange, LLC (‘‘ISE’’) Rule 715(n) and therefore are exempt from the liquidity fees and NYSE Arca Options, Inc. (‘‘NYSE Arca’’) Rule proposed change will protect investors credits on the Exchange. See Section II.C. of the 6.62(t). and the public interest by providing a BOX Fee Schedule. 9 Market Makers will have one interface to submit more robust market. The Exchange 7 On a daily basis, a Market Maker must, during quotes to BOX and another interface they can believes that the proposed rule change regular market hours, make markets and enter into utilize for submitting orders. any resulting transactions consistent with the 10 Options Participants, both Order Flow will lead to enhanced liquidity on the applicable quoting requirements, such that on a Providers and Market Makers, executing agency Exchange, which in turn will benefit daily basis a Market Maker must post valid quotes orders may designate Market Orders and marketable and protect investors and the public at least sixty percent (60%) of the time that the limit Customer Orders for price improvement and interest through the potential for greater classes are open for trading. These obligations apply submission to the PIP. Customer Orders designated to all of the Market Maker’s appointed classes for the PIP (‘‘PIP Orders’’) shall be submitted to collectively, rather than on a class-by-class basis. BOX with a matching contra order equal to the full 11 15 U.S.C. 78f(b). See Rule 8050(e). See also Rule 8040. size of the PIP Order. See Rule 7150. 12 15 U.S.C. 78f(b)(5).
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volume of orders and executions on advantage over other Participants. The comments more efficiently, please use BOX. Exchange notes that although it does not only one method. The Commission will The Exchange notes that a Market have liquidity adding orders, post all comments on the Commission’s Maker’s obligation to provide Participants can easily add liquidity by Internet Web site (http://www.sec.gov/ continuous two-sided quotes on a daily submitting orders as they currently do rules/sro.shtml). Copies of the basis is not diminished by the proposed today. The Exchange also notes that submission, all subsequent change. A Market Maker will still be other exchanges already have liquidity amendments, all written statements required to provide continuous two- adding only mechanisms for market with respect to the proposed rule sided quotes on a daily basis and quotes participants; 14 therefore, the Exchange change that are filed with the will still expire at the end of the day. does not believe this proposal imposes Commission, and all written Even though rejected quotes will not be an undue burden on inter-market communications relating to the considered when determining a Market competition. proposed rule change between the Maker’s quoting obligations, due to the Commission and any person, other than C. Self-Regulatory Organization’s fact that a Market Maker’s quote very those that may be withheld from the Statement on Comments on the rarely ever takes liquidity on BOX,13 the public in accordance with the Proposed Rule Change Received From Exchange believes that the proposed provisions of 5 U.S.C. 552, will be Members, Participants, or Others rule change will not have a material available for Web site viewing and effect on a Market Maker’s quoting The Exchange has neither solicited printing in the Commission’s Public ability or a Market Maker’s quoting nor received comments on the proposed Reference Room, 100 F Street NE., requirements outlined in BOX Rule rule change. Washington, DC 20549, on official business days between the hours of 8050. Lastly, the Exchange notes that III. Date of Effectiveness of the Market Makers will still be able to send 10:00 a.m. and 3:00 p.m. Copies of such Proposed Rule Change and Timing for filing will also be available for orders in and out of classes to which Commission Action they are appointed. inspection and copying at the principal Within 45 days of the date of office of the Exchange. All comments B. Self-Regulatory Organization’s publication of this notice in the Federal received will be posted without change; Statement on Burden on Competition Register or within such longer period (i) the Commission does not edit personal The Exchange does not believe that as the Commission may designate up to identifying information from the proposed rule change will impose 90 days of such date if it finds such submissions. You should submit only any burden on competition not longer period to be appropriate and information that you wish to make necessary or appropriate in furtherance publishes its reasons for so finding or available publicly. All submissions of the purposes of the Act. BOX believes (ii) as to which the self-regulatory should refer to File Number SR–BOX– the proposal will add value to market organization consents, the Commission 2016–45 and should be submitted on or making on BOX. The Exchange does not will: before October 24, 2016. believe the proposal will impose a (A) By order approve or disapprove For the Commission, by the Division of burden on competition among the the proposed rule change, or Trading and Markets, pursuant to delegated options exchanges because of vigorous (B) institute proceedings to determine authority.15 competition for order flow among the whether the proposed rule change Robert W. Errett, options exchanges. The Exchange should be disapproved. Deputy Secretary. competes with many other options IV. Solicitation of Comments [FR Doc. 2016–23749 Filed 9–30–16; 8:45 am] exchanges. In this highly competitive BILLING CODE 8011–01–P market, market participants can easily Interested persons are invited to and readily direct order flow to submit written data, views, and competing venues. The proposal does arguments concerning the foregoing, SECURITIES AND EXCHANGE not impose an undue burden on including whether the proposed rule COMMISSION intramarket competition because the change is consistent with the Act. Comments may be submitted by any of [Release No. 34–78954; File No. SR–CBOE– proposed change will apply to all 2016–069] Market Makers on BOX. The Exchange the following methods: does not believe that the proposed Electronic Comments Self-Regulatory Organizations; restriction on Market Maker quotes will • Use the Commission’s Internet Chicago Board Options Exchange, impose an undue burden on Market comment form (http://www.sec.gov/ Incorporated; Notice of Filing and Makers because they will continue to be rules/sro.shtml); or Immediate Effectiveness of a Proposed permitted to submit orders which can • Send an email to rule-comments@ Rule To Amend the Nonstandard take liquidity. The Exchange does not sec.gov. Please include File Number SR– Expirations Pilot Program To Permit believe that the proposed rule change BOX–2016–45 on the subject line. New Series To Be Added Up to and will provide Market Makers with any Including on the Expiration Date Paper Comments September 27, 2016. 13 It is the Exchange’s understanding that • Send paper comments in triplicate generally when a Market Maker’s quote takes Pursuant to Section 19(b)(1) of the liquidity, it was done unintentionally. Specifically, to Secretary, Securities and Exchange Securities Exchange Act of 1934 (the it occurs when the price of the underlying security Commission, 100 F Street NE., ‘‘Act’’),1 and Rule 19b–4 thereunder,2 updates, but the Market Maker did not update the Washington, DC 20549–1090. incoming quote to reflect the new price of the notice is hereby given that on underlying security. When Market Makers wish to All submissions should refer to File September 16, 2016, Chicago Board take liquidity they do so by sending an order to the Number SR–BOX–2016–45. This file Options Exchange, Incorporated (the Exchange, not a quote. When a Market Maker sends number should be included on the ‘‘Exchange’’ or ‘‘CBOE’’) filed with the a quote to the Exchange it is done as part of a bulk subject line if email is used. To help the quote message with numerous other quotes and quote updates; this is why it is more efficient for Commission process and review your 15 17 CFR 200.30–3(a)(12). a Market Maker to use an order when it is looking 1 15 U.S.C. 78s(b)(1). to take liquidity. 14 See supra note 8. 2 17 CFR 240.19b–4.
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Securities and Exchange Commission listed under the STOs Program, which listed to expire on the next five Fridays (the ‘‘Commission’’) the proposed rule is an industry-wide program.5 This that are business days (excluding third change as described in Items I, II, and proposal seeks to align CBOE’s listing Fridays and days on which Quarterly III below, which Items have been ability under the two Programs. Option Series expire) and new series of prepared by the Exchange. The In July 2005, the Commission STOs may be added up to and including Exchange filed the proposal as a ‘‘non- approved a CBOE rule filing to establish on their last trading day or expiration controversial’’ proposed rule change the STOs Program on a pilot basis.6 date (as applicable).10 pursuant to Section 19(b)(3)(A)(iii) of When it was adopted, the STOs Program Due to the same expiration style the Act 3 and Rule 19b–4(f)(6) permitted CBOE to list series in an restriction for STOs on broad-based thereunder.4 The Commission is approved class (i.e., stock, ETP or index) indexes, CBOE submitted a proposal in publishing this notice to solicit on any Friday to expire at the close of 2009 to establish a pilot program under comments on the proposed rule change business on the next Friday that is a which CBOE is permitted to list P.M.- from interested persons. business day (excluding third Fridays).7 settled options on broad-based indexes Importantly, under the Program then that expire on (a) any Friday of the I. Self-Regulatory Organization’s and now, STOs are settled in the same month, other than the third Friday-of- Statement of the Terms of Substance of manner as monthly (standard) the-month, and (b) the last trading day the Proposed Rule Change expiration series in the same class. For of the month.11 This pilot program is CBOE proposes to align CBOE’s example, if the monthly option contract currently named the ‘‘Nonstandard listing ability under the Nonstandard for a particular class is A.M.-settled, as Expirations Pilot Program’’ and Expirations Pilot Program with CBOE’s most index options are, STOs for that expirations listed under this Program listing ability under the Short Term class are also A.M.-settled. This means compete with expirations listed under Option Series (‘‘STOs’’) Program (which that the last trading day for A.M.-settled the industry wide STOs Program.12 is an industry-wide program). index STOs is on the business day prior Unlike new series listed under the Specifically, CBOE proposes to permit to their expiration day (Thursday) and STOs Program, the listing of new series new series to be added up to and the exercise settlement value is based on under the Nonstandard Expirations Pilot including on the expiration date for the reported level of the index Program is treated the same as standard expirations listed under the calculated using opening prices of the options on the same underlying index Nonstandard Expirations Pilot Program. index components on the expiration (other than being P.M.-settled).13 The text of the proposed rule change is day.8 A.M.-settled index STOs and Specifically, Rule 24.9.01(c) governs the available on the Exchange’s Web site P.M.-settled index STOs expire at the listing of new series under the (http://www.cboe.com/AboutCBOE/ close of business on their expiration Nonstandard Expirations Pilot Program CBOELegalRegulatoryHome.aspx), at dates. and that Rule provides, in relevant part, the Exchange’s Office of the Secretary, The STOs Program was made that new series of index options may be and at the Commission. permanent 9 and has been expanded added up to the fifth business day prior several times so that currently, among to expiration. As a result, classes traded II. Self-Regulatory Organization’s other things, STOs expirations may be under the Nonstandard Expirations Pilot Statement of the Purpose of, and Program are competitively Statutory Basis for, the Proposed Rule 5 The STOs Program is set forth in Rule 5.5(d) disadvantaged to classes traded under Change (which governs the STOs Program for stock and the STOs Program. This is because new In its filing with the Commission, the exchange-traded product (‘‘ETP’’) option classes) and Rule 24.9(a)(2)(A) (which governs the STOs series of STOs may be added past the Exchange included statements Program for index option classes). The last trading time that they may be added for concerning the purpose of and basis for day and expiration date for an options class are Nonstandard Expirations. Additionally, the proposed rule change and discussed generally determined by its exercise-settlement Rule 24.9.01 permits new series to be any comments it received on the style. For P.M.-settled contracts, the last trading day and expiration date occur on the same business day. added up to and including on the last proposed rule change. The text of these For A.M.-settled contracts, the last trading is on the trading day for other index options that statements may be examined at the business day before the expiration date. Because the expire on a weekly basis (i.e., VIX places specified in Item IV below. The expirations listed under the Nonstandard options and VXST options, which are Exchange has prepared summaries, set Expirations Pilot Program are P.M.-settled, the last both classes that have weekly trading and expiration date for these expirations forth in sections A, B, and C below, of 14 occur on the same business day. expirations). the most significant aspects of such 6 See Securities Exchange Act Release No. 52011 statements. (July 12, 2005), 70 FR 41451 (July 19, 2005) (order 10 See Securities Exchange Act Release No. 71005 approving SR–CBOE–2004–63). (December 6, 2013), 78 FR 75395 (December 11, A. Self-Regulatory Organization’s 7 Similar versions of the STOs Program have been 2013) (order approving SR–CBOE–2013–096). Statement of the Purpose of, and adopted by the majority, if not all, of the other 11 See Securities Exchange Act Release No. 62911 Statutory Basis for, the Proposed Rule options exchanges, see e.g., BOX IM–5050–6 to Rule (September 14, 2010), 75 FR 57539 (September 21, Change 5050 (Short Term Option Series Program) and ISE 2010) (order approving SR–CBOE–2009–075). Rule 504.02 (Short Term Option Series Program), 12 See Securities Exchange Act Release Nos. 1. Purpose MIAX Rule 404.02 (Short Term Option Series 76909 (January 14, 2016), 81 FR 3512 (January 21, Program). 2016) (order approving SR–CBOE–2015–106) and CBOE proposes to permit new series 8 The last trading day and expiration date are the 78531 (August 10, 2016), 81 FR 54643 (August 16, to be added up to and including on the same day (Friday) for P.M.-settled index STOs and 2016) (order approving SR–CBOE–2016–046). expiration date for expirations listed the exercise settlement value is based on the 13 For standard stock and ETP options, new series under the Nonstandard Expirations Pilot reported level of the index calculated using the last may generally be added until the beginning of the reported prices of the index components on the month in which the option contract will expire Due Program. The Exchange states that the expiration date. CBOE currently lists P.M.-settled to unusual market conditions, the Exchange, in its ability to list new series up to and index STOs on the S&P 100 Index (OEX which has discretion, may add new series of options on an including on their last trading day or American-style exercise and XEO which has individual stock until the close of trading on the expiration date (as applicable) is European-style exercise). These index STOs are second business day prior to expirations. See Rule currently permitted for expirations P.M.-settled because monthly (standard) expiration 5.5.04. series in OEX and XEO are P.M.-settled. 14 VIX and VXST are A.M.-settled index options 9 See Securities Exchange Act Release No. 59824 and do not trade on their expiration date. Because 3 15 U.S.C. 78s(b)(3)(A)(iii). (April 27, 2009), 74 FR 20518 (May 4, 2009) (order series listed under the Nonstandard Expirations 4 17 CFR 240.19b–4(f)(6). approving SR–CBOE–2009–018). Pilot Program are P.M.-settled and trade throughout
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Accordingly, the Exchange seeks to on the expiration date for these B. impose any significant burden on align CBOE’s listing ability under the competing products. The Exchange competition; and Nonstandard Expirations Pilot Program notes that the ability to list series up to C. become operative for 30 days from with CBOE’s listing ability under the and including on expiration for P.M.- the date on which it was filed, or such STOs Program and with other index settled STOs (and their last trading day shorter time as the Commission may options that expire on a weekly basis. for A.M.-settled STOs and weekly VIX designate, it has become effective Specifically, the Exchange proposes to and VXST options) already exists. As a pursuant to Section 19(b)(3)(A) of the amend Rule 24.9(e)(1) and Rule result, permitting new series listed Act 17 and Rule 19b–4(f)(6) 18 24.9(e)(2) to expressly permit the under the Nonstandard Expirations Pilot thereunder. At any time within 60 days addition of new series up to and Program to be added up to and of the filing of the proposed rule change, including on the expiration date for including on their expiration date is not the Commission summarily may series listed under the Nonstandard a new or novel proposal. temporarily suspend such rule change if Expirations Pilot Program. As with Finally, the Exchange is proposing to it appears to the Commission that such intraday series added under the STOs make two technical changes to the text action is necessary or appropriate in the Program, The Options Clearing of Rule 5.5(d). One proposed change is public interest, for the protection of Corporation (‘‘OCC’’) has the ability to grammatical and the other deletes a investors, or otherwise in furtherance of accommodate same day series adds repetitive word. These changes would the purposes of the Act. If the under the Nonstandard Expirations Pilot benefit investors because CBOE’s Commission takes such action, the Program. Rulebook would read correctly. Commission will institute proceedings The Exchange is proposing to correct to determine whether the proposed rule two typographical errors in Rule B. Self-Regulatory Organization’s change should be approved or 24.9(e)(1). This proposed change is a Statement on Burden on Competition disapproved. cleanup change and is non-substantive. CBOE does not believe that the IV. Solicitation of Comments 2. Statutory Basis proposed rule change would impose any burden on competition that is not Interested persons are invited to The Exchange believes the proposed necessary or appropriate in furtherance submit written data, views, and rule change is consistent with the Act of the purposes of the Act. The arguments concerning the foregoing, and the rules and regulations Exchange notes that new series are including whether the proposed rule thereunder applicable to the Exchange permitted to be added up to and change is consistent with the Act. and, in particular, the requirements of including on their last trading day or Comments may be submitted by any of 15 Section 6(b) of the Act. Specifically, expiration date (as applicable) for series the following methods: the Exchange believes the proposed rule listed under the STOs Program and on Electronic Comments change is consistent with the Section their last trading day for certain weekly • 6(b)(5) 16 requirements that the rules of Use the Commission’s Internet expiring index options. As a result, comment form (http://www.sec.gov/ an exchange be designed to prevent permitting new series to be added up to fraudulent and manipulative acts and rules/sro.shtml); or and including on the expiration date for • Send an email to rule-comments@ practices, to promote just and equitable Nonstandard Expirations is not a new or principles of trade, to foster cooperation sec.gov. Please include File Number SR– novel proposal. Additionally, the CBOE–2016–069 on the subject line. and coordination with persons engaged current rule change is being proposed to in regulating, clearing, settling, allow Nonstandard Expirations to Paper Comments processing information with respect to, compete (both intra and inter-market) • Send paper comments in triplicate and facilitating transactions in with series listed under the STOs to Brent J. Fields, Secretary, Securities securities, to remove impediments to program. CBOE believes this proposed and Exchange Commission, 100 F Street and perfect the mechanism of a free and rule change is necessary to ensure fair NE., Washington, DC 20549–1090. open market and a national market competition among the options All submissions should refer to File system, and, in general, to protect exchanges. Also, the Exchange does not investors and the public interest. Number SR–CBOE–2016–069. This file believe the proposal would impose any number should be included on the In particular, because expirations burden on intramarket competition, as listed under the Nonstandard subject line if email is used. To help the all market participants would be treated Commission process and review your Expirations Pilot Program compete with in the same manner and would have expirations listed under the STOs comments more efficiently, please use more tools for trading if CBOE has the only one method. The Commission will Program (both intra and inter-market), same listing ability in both programs. the Exchange believes that is necessary post all comments on the Commission’s for competitive reasons (both intra and C. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ inter-market) to have the same series Statement on Comments on the rules/sro.shtml). Copies of the listing abilities under each Program. Proposed Rule Change Received From submission, all subsequent Market participants would also benefit Members, Participants, or Others amendments, all written statements from this proposal because they would with respect to the proposed rule The Exchange neither solicited nor change that are filed with the be able to request and receive strikes in received comments on the proposed competing products up to and including Commission, and all written rule change. communications relating to the the day on their expiration date, the Exchange is III. Date of Effectiveness of the proposed rule change between the seeking to permit new series in Nonstandard Proposed Rule Change and Timing for Commission and any person, other than Expirations to be added up to and including on Commission Action those that may be withheld from the their expiration date (which is their last trading public in accordance with the day, too). This proposed change tracks the Because the foregoing proposed rule Exchange’s listing ability for P.M.-settled series provisions of 5 U.S.C. 552, will be listed under the industry-wide STOs Program. change does not: 15 15 U.S.C. 78f(b). A. Significantly affect the protection 17 15 U.S.C. 78s(b)(3)(A). 16 15 U.S.C. 78f(b)(5). of investors or the public interest; 18 17 CFR 240.19b–4(f)(6).
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available for Web site viewing and 22(c)(2)(iii) 6 with respect to its annual European Union pursuant to the printing in the Commission’s Public audited financial statements; and (iv) European Market Infrastructure Reference Room, 100 F Street NE., Rule 17a–22 7 with respect to Regulation (‘‘EMIR’’) and also is Washington, DC 20549 on official requirements to provide the registered with the CFTC as a business days between the hours of Commission with physical copies of derivatives clearing organization 10:00 a.m. and 3:00 p.m. Copies of the certain materials.8 The Commission is (‘‘DCO’’) to provide clearing services for filing also will be available for publishing this notice to solicit broad-based index CDS to U.S. members inspection and copying at the principal comments from interested persons and their customers.13 office of the Exchange. All comments regarding LCH SA’s Form CA–1 and LCH SA offers clearing services for received will be posted without change; Request for Exemptive Relief.9 The derivatives, exchange-traded futures and the Commission does not edit personal Commission will consider any options, cash equities and fixed income identifying information from comments it receives in making its and energy instruments through three submissions. You should submit only determination of whether to grant LCH lines of CCP services: EquityClear, information that you wish to make SA’s application for registration as a CommodityClear, and RepoClear.14 available publicly. All submissions clearing agency and Request for These services constitute LCH SA’s should refer to File Number SR–CBOE– Exemptive Relief. ‘‘non-U.S. business’’ in that they operate 2016–069 and should be submitted on entirely outside the United States and II. LCH SA Form CA–1 Application or before October 24, 2016. do not have any U.S. clearing members. For the Commission, by the Division of LCH SA’s Form CA–1 application and LCH SA’s CDS clearing services are Trading and Markets, pursuant to delegated accompanying exhibits contain located in the CDSClear business unit. authority.19 information regarding LCH SA and its While all clearing services are provided 10 Robert W. Errett, CDSClear operations. Set forth below from within the same legal entity, Deputy Secretary. is a summary of certain aspects of LCH CDSClear is ‘‘ring-fenced’’ as it has its SA’s Form CA–1 application. own rulebook, policies and procedures, [FR Doc. 2016–23755 Filed 9–30–16; 8:45 am] risk management framework, risk BILLING CODE 8011–01–P A. Overview of LCH SA management personnel, default fund, LCH SA maintains its principal office waterfall, default management process, in Paris, France and is a wholly-owned SECURITIES AND EXCHANGE operations department, and certain subsidiary of LCH.Clearnet Group 15 COMMISSION information technology resources. Limited (‘‘LCH Group’’), a limited Registration with the Commission as a [Release No. 34–78941; File No. 600–36] company incorporated under the laws of clearing agency would permit LCH SA England and Wales.11 LCH Group is to offer single-name CDS clearing Self-Regulatory Organizations; LCH majority owned by the London Stock services to U.S. persons through its SA; Notice of Filing of Application for Exchange Group plc (‘‘LSEG’’). In its CDSClear business unit. LCH SA Registration as a Clearing Agency and home jurisdiction, LCH SA is the only currently offers index CDS and single- Request for Exemptive Relief CCP in France and is regulated as a bank name CDS clearing services to non-U.S. September 27, 2016. and a CCP under French law by the persons in Europe and is authorized to Autorite´ des Marche´s Financiers, offer index CDS clearing services to U.S. I. Introduction Autorite´ de Controˆle Prudentiel et de clearing members and their customers On July 5, 2016, Banque Centrale de Re´solution, and Banque de France.12 In under its DCO registration. Compensation, which conducts addition, LCH SA is a CCP authorized business under the name LCH SA (‘‘LCH to offer clearing services in the B. LCH SA Membership Standards and SA’’) filed with the Securities and Enforcement of Rules Exchange Commission (‘‘Commission’’) 6 17 CFR 240.17Ad–22(c)(2) and 17 CFR 1. Membership Standards a Form CA–1 seeking registration as a 240.17Ad–22(c)(2)(iii). 7 LCH SA has established requirements clearing agency under Section 17A of 17 CFR 240.17a–22. 8 See Letter from Christophe He´mon, CEO, LCH concerning membership. These 1 the Securities Exchange Act of 1934 SA, to Brent J. Fields, Secretary, Securities and requirements are used to accept, deny, 2 (‘‘Act’’) and Rule 17Ab2–1 thereunder. Exchange Commission (August 9, 2016) (hereinafter or condition any person’s participation ‘‘Request for Exemptive Relief’’). Specifically, LCH SA is seeking to in LCH SA’s clearing services as a provide central counterparty (‘‘CCP’’) 9 The descriptions set forth in this notice regarding the structure and operations of LCH SA member and include standards for services for U.S. persons for security- have been derived from information contained in financial responsibility, operational based swaps, in particular single-name LCH SA’s Form CA–1 application. The application capacity, business experience, and credit default swaps (‘‘CDS’’), through and exhibits thereto for which LCH SA has not creditworthiness.16 Members must its CDSClear business unit. LCH SA also requested confidential treatment are available on the Commission’s Web site at www.sec.gov/rules/ comply with these requirements on an is seeking exemptive relief (i) from other.shtml. ongoing basis.17 3 Sections 5 and 6 of the Act with 10 Schedule A to LCH SA’s Form CA–1 includes With respect to financial respect to its end-of-day pricing process; a description of the risk management procedures responsibility, LCH SA’s rulebook 4 (ii) from Section 19(b) of the Act and utilized by LCH SA. Exhibit A contains information contains net capital requirements that, Rule 19b–4 thereunder 5 with respect to about the ownership and governance structure of LCH SA. Exhibit B contains a list of LCH SA’s among other things, establish minimum filing certain proposed rule changes officers and senior managers of LCH SA and the net capital requirements for members relating to its non-U.S. business; (iii) CDSClear business unit. Exhibit C includes a that may be scalable based on the risk from Rules 17Ad–22(c)(2) and 17Ad– narrative and graphic descriptions of LCH SA’s organizational structure. Exhibit E includes copies of the CDS Clearing rulebook, procedures and 13 Id. 19 17 CFR 200.30–3(a)(12). articles of association. Exhibit J provides a 14 See generally, LCH SA Form CA–1, Exhibit C. 1 15 U.S.C. 78q–1. description of CDSClear’s services and functions. 15 See generally, LCH SA Form CA–1, Exhibit C. 2 17 CFR 240.17Ab2–1(a). 11 See LCH SA Form CA–1, Exhibit A at 1. 16 See generally, LCH SA Form CA–1, Exhibit E– 3 15 U.S.C. 78e and 78f. 12 See generally, LCH SA Form CA–1, Exhibit J– 4 (LCH SA CDS Rule Book) Section 2.2.1. 4 15 U.S.C. 78s(b). 3 (LCH SA CDSClear Service Description) Section 17 See generally, LCH SA Form CA–1, Exhibit E– 5 17 CFR 240.19b–4. 2.3. 4 (LCH SA CDS Rule Book) Section 2.2.2.
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the members introduce to LCH SA. fines or public censure.22 LCH SA also SA management has put in place Regarding operational capacity and may suspend or terminate the adequate internal control systems and business experience requirements, a membership in certain circumstances assisting the board in reviewing LCH member must be able to demonstrate such as upon a member’s material SA’s audited financial statements, that it has sufficient expertise in breaches of its obligations, upon regulatory compliance, risk governance clearing activities, that its systems and suspension or termination of a framework, internal control operations are sufficiently reliable and member’s membership in another environment and information security capable of supporting the performance clearing house, or upon the occurrence and business continuity plans.26 LCH of the member in meeting its obligations of an event that materially impacts the SA also has established a risk committee (including having sufficient facilities, member’s ability to meet its obligations to consider LCH SA’s risk appetite, equipment, personnel, hardware and under relevant membership tolerance and strategy. The risk software systems), and that it has agreements.23 committee reviews on an annual basis appropriate banking arrangements.18 To LCH SA also has established pre- LCH SA’s operational risk policy and assess a member’s creditworthiness, defined procedures for the disciplining regularly reviews reports prepared by LCH SA uses an internal credit scoring of members and for affording a member LCH SA’s risk management framework to determine the member’s or a person with respect to the CDSClear department.27 Representatives of credit risk based on financial and services the opportunity to dispute a members and customers are directly qualitative factors.19 decision by LCH SA to discipline the represented on the Risk Committee.28 LCH SA imposes several monitoring member or to deny, prohibit, or limit the In addition to these internal and reporting obligations on its person’s access to the CDSClear governance structures, LCH SA also has members to ensure ongoing compliance services. These disciplinary proceedings a process for considering external views with its membership obligations. LCH set forth procedures regarding regarding certain aspects of its CDSClear SA monitors on an ongoing basis certain investigations of a member by LCH SA, service. Specifically, when considering indicators of its members, including which require LCH SA to send a written a material change to the CDSClear CDS spreads, long-term credit ratings, notice to the member regarding the service, LCH SA engages certain banks and equity returns. Each member is details of the investigation and an (some of which are members), which required to notify LCH SA in writing of opportunity for the member to object. also bear part of the cost of developing material changes to itself or its Following an investigation, LCH SA and operating CDSClear, in a operations, such as changes in the direct must provide a written report of its consultative process where such banks or indirect controlling ownership, findings to the member and, where LCH may provide recommendations to LCH reduction in capital of more than 10%, SA has determined to impose SA. Ultimately, LCH SA maintains the occurrence of insolvency disciplinary proceedings, form a authority for operating CDSClear, and proceedings, the default of any of the disciplinary committee and provide the may choose to not implement any member’s clients, and any change to the member the opportunity to respond to recommendations.29 member’s systems or operations that the report. The disciplinary committee materially impact the member’s ability is required to provide the member with D. Safeguarding of Securities and Funds to meet its obligations as a member. notice of its decision and any sanctions 1. Margin Furthermore, members are required to imposed. Members are permitted to LCH SA employs a risk-based margin provide to LCH SA audited financial dispute the decision and imposition of methodology specific to its CDSClear statements on an annual basis, as well sanctions, and to submit such dispute to 24 service to calculate its exposures to as interim financial statements during arbitration or litigation, as applicable. CDSClear members and to set initial the course of the year.20 C. Governance margin requirements.30 Specifically, 2. Capacity To Enforce Rules and LCH SA is governed by its board of LCH SA uses a Value at Risk (‘‘VaR’’) Discipline Members directors, which determines LCH SA’s model to calculate member margin LCH SA has established rules to business strategies and oversees requirements sufficient to cover losses monitor for members’ breaches of its implementation of those strategies. The under normal market conditions with a rules, enforce its rules, and discipline Terms of Reference of LCH SA’s Board 99.7% confidence interval. The margin members. Additionally, as noted above, of Directors require the board to be model takes into account a variety of CDSClear members are required to composed of between 3 and 18 risks, including changes to credit notify LCH SA of certain breaches members, and must include a non- spreads, recovery rates, and interest relating to financial or operational executive chair; executive directors; rates. In addition to its initial margin capacity, and are required to submit to independent non-executive members; at requirements, to manage the risk of inspections and audits by LCH SA.21 In least one director representing LSEG; price fluctuations occurring in a the event that a member breaches its and a director nominated by a user of member’s open position, LCH SA and 25 obligations, LCH SA may impose certain LCH SA. members are required to make cash risk-reducing measures, including LCH SA has an audit committee payments to meet a variation margin restricting a member’s ability to submit tasked with determining whether LCH additional transactions for clearing, or 26 See generally, LCH SA Form CA–1, Exhibit A– 22 See generally, LCH SA Form CA–1, Exhibit E– 5 (LCH SA Terms of Reference of the Audit impose disciplinary sanctions, such as 4 (LCH SA Rulebook) Section 2.4.1; and Exhibit E– Committee of the Board of Directors) Section 1. 6.8 (LCH SA CDS Clearing Proceedings, Section 8: 27 See generally, LCH SA Form CA–1, Exhibit A– 18 See generally, LCH SA Form CA–1, Exhibit E– Disciplinary Proceedings) Section 8.4. 4 (LCH SA Terms of Reference of the Risk 4 (LCH SA CDS Rule Book) Section 2.2.1. 23 See generally, LCH SA Form CA–1, Exhibit E– Committee of the Board of Directors). 19 See generally, LCH SA Form CA–1, Exhibit E– 4 (LCH SA Rulebook) Section 2.4.1.1. 28 See generally, Exhibit A–2 (LCH SA Terms of 4 (LCH SA CDS Rule Book) Section 2.2.4.1. 24 See generally, LCH SA Form CA–1, Exhibit E– Reference of the Risk Committee of the Board of 20 See generally, LCH SA Form CA–1, Schedule 6.8 (LCH SA CDS Clearing Procedures, Section 8: Director) Section 1.1. A at 9; See also Exhibit E–4 (LCH SA CDS Rule Disciplinary Proceedings). 29 See generally, LCH SA Form CA–1, Exhibit A Book) Sections 2.3.1 and 2.3.2. 25 See generally, LCH SA Form CA–1, Exhibit A; 30 See generally, LCH SA Form CA–1, Exhibit H– 21 See generally LCH SA Form CA–1, Exhibit E– and Exhibit A.2 (LCH SA Terms of Reference of the 1 (LCH SA Audited Financial Statements for the 4 (LCH SA CDS Clearing Rule Book) Section 2.3.3. Board of Directors) Section 1. Year Ended 31 December 2015) at 18.
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requirement.31 LCH SA performs an basis.37 LCH SA’s Risk Committee Under the default waterfall, the independent model validation annually. reviews results of stress testing related defaulting member’s initial margin, In addition to margin requirements to the CDSClear default fund on at least variation margin and additional margins derived from its model, LCH SA a quarterly basis.38 are first used to cover losses. If these imposes margin requirements on 3. Investment and Liquidity Risk resources are insufficient to cover the members to address position Management losses, the defaulting member’s default concentrations, wrong way risk, and fund contribution is applied. To the illiquid positions. LCH SA also requires To appropriately manage cash extent that losses are still not covered, additional margin from members with collateral posted by members to satisfy LCH SA would use a portion of its own lower credit standing.32 margin and default fund requirements, capital (in the amount established in the LCH SA has an investment risk policy CDSClear default waterfall pursuant to LCH SA requires each member to post that is designed to ensure that collateral the CDSClear rulebook) to cover collateral to satisfy its margin is invested securely. LCH SA’s policies remaining losses. If losses exceed the requirement to allow LCH SA to manage require investments be made with financial resources used up to this its risk exposure. LCH SA limits the counterparties that meet certain point, LCH SA may then access the collateral that is eligible to cash and minimum credit standards (based on default fund contributions of non- securities with low credit, liquidity, and LCH SA’s internal credit assessment).39 defaulting members and also may market risk, and applies haircuts to LCH SA monitors and measures impose additional default fund collateral posted in the form of liquidity resources and requirements for contribution assessments against non- 33 securities. the entity as a whole, and calculates its defaulting members. If pre-funded 2. Default Fund liquidity needs daily. In addition to the resources and assessments are cash collateral it holds and its capital as insufficient to cover losses within a five Apart from its initial and variation immediate liquidity resources, during business-day period, LCH SA may margin requirements, LCH SA has liquidity stress events, LCH SA also can impose, on a pro rata basis, reductions established a mutualized default fund access French central bank liquidity in daily settlement payments owed to exclusively for the CDSClear service and through the Banque de France and also non-defaulting members (‘‘variation keeps it separate from the default funds maintains other secured financing margin haircutting’’), subject to certain for LCH SA’s other services.34 The facilities.40 limits. The entire default management default fund is only available for use to 4. Default Management Process process, including the use of variation cover losses as a result of, and margin haircutting, is intended to be following, an event of default with To manage losses incurred in the completed within five business days respect to a member. LCH SA sizes the event of a member default, LCH SA’s following the declaration of a default.44 default fund to cover the theoretical default management process sets forth At any time during the default losses associated with the default of the the steps LCH SA would take in the management process, if LCH SA 41 largest two members in extreme but event of such an occurrence. Upon the determines that it would not have plausible market conditions plus an declaration of an event of default, LCH sufficient resources to meet obligations additional buffer.35 Each clearing SA’s default management process begins arising from the default auction or member is required to contribute to the to minimize losses and disruption by auctions in accordance with its default attempting to hedge against market risk default fund in an amount that is the waterfall, LCH SA must early terminate and transfer client positions to non- greater of the clearing member’s all open contracts and proceed to wind defaulting members, and to dispose of proportionate share of the total default down the CDSClear service pursuant to the defaulting member’s portfolio fund based on the margin requirements the terms set forth in its Rulebook.45 through a competitive auction process related to positions held in the within the five-business-day default E. Business Continuity CDSClear service, or the minimum management process period.42 Default Ö 36 contribution of 10 million. LCH SA losses resulting from a CDSClear LCH SA maintains a business calibrates its default fund, and member member’s default can be covered only continuity plan as a part of the LCH default fund requirements, on a monthly by using the financial resources Group’s business continuity model, collected for CDSClear pursuant to the which is designed to recover core 31 See generally, LCH SA Form CA–1, Exhibit H– default waterfall.43 clearing services within a two-hour 1 (LCH SA Audited Financial Statements for the period following a point of failure and Year Ended 31 December 2015) at 18; See also, LCH to enable LCH SA to perform end-of-day SA Form CA–1, Exhibit E–4 (CDS Clearing Rule 37 See generally, LCH SA Form CA–1, Exhibit J– Book) Section 4.2.5; and Exhibit E–6 (LCH.Clearnet 3 (LCH SA CDSClear Service Description) Section settlement of transactions on the same SA CDS Clearing Procedures, Section 2—Margin 11.1. business day. The business continuity and Price Alignment Interest). 38 See generally, Exhibit A–4 (LCH SA Terms of plan includes policies and procedures 32 See generally, LCH SA Form CA–1, Exhibit H– Reference of the Risk Committee of the Board of regarding threat assessment and 1 (LCH SA Audited Financial Statements for the Directors) Section 9.1. Year Ended 31 December 2015) at 18; and Exhibit 39 See generally, LCA SA Form CA–1, Exhibit H– monitoring, and anticipated responses J–3 (CDSClear Service Description) Section 9.1. 1 (LCH SA Audited Financial Statements for the in the event that such threats 33 See generally, LCH SA Form CA–1, Exhibit E– Year Ended 31 December 2015) at 20. materialize, including the switching 4 (CDS Clearing Rule Book) Sections 4.2.6.3 and 40 See generally, LCH SA Form CA–1, Exhibit H– over to alternative systems and 4.2.6.4; See also, LCH SA Form CA–1, Exhibit E– 1 (LCH SA Audited Financial Statements for the 46 6.3 (LCH SA CDS Clearing Procedures Section 3— Year Ended 31 December 2015) at 23–24. secondary sites. Collateral and Cash Payment) Section 3.9. 41 See generally, LCH SA Form CA–1, Exhibit E– 34 See generally, LCH SA Form CA–1, Exhibit E– 4 (LCH SA CDS Clearing Rule Book, Appendix 1 44 See generally, LCH SA Form CA–1, Exhibit J– 4 (LCH SA CDS Clearing Rule Book) Article 4.4.1.1. ‘‘CDS Default Management Process’’). 3 (CDSClear Service Description) Section 11.2. 35 See generally, LCH SA Form CA–1, Exhibit E– 42 See generally, LCH SA Form CA–1, Schedule 45 See Generally, LCH SA Form CA–1, Exhibit E– 4 (LCH SA CDS Clearing Rule Book) Sections A at 10–11; see also Exhibit E–4 (LCH SA CDS 4 (LCH SA CDS Clearing Rule Book) Appendix 1, 4.4.1.1 and 4.4.1.2. Clearing Rule Book) Appendix 1, Section 2.1. Clause 2.1.4 and 8.1. 36 See generally, LCH SA Form CA–1, Exhibit E– 43 See generally, LCH SA Form CA–1, Exhibit E– 46 See generally, LCH SA Form CA–1, Exhibit K– 4 (LCH SA CDS Clearing Rule Book) Article 4.4.1.3. 4 (LCH SA CDS Clearing Rule Book) Section 4.4.1. 2 (Group Business Continuity Management Policy).
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F. Fee Structure of the Act and Rule 19b–4 thereunder with International Standards on LCH SA charges transaction fees with respect to filing certain proposed Auditing (‘‘ISA’’). Additionally, under linked to products and annual rule changes that (i) primarily affect its French law, LCH SA states that it is membership fees, which are generally clearing operations with respect to the required to maintain two statutory non-U.S. business and (ii) do not auditing firms that jointly sign the usage-based and apply equally to all 57 members using LCH SA’s CDSClear significantly affect any CDSClear annual audited accounts. LCH SA operations or any rights or obligations of service. LCH SA also imposes annual represents that, because it would be LCH SA with respect to the CDSClear account structure fees for individually required upon being registered with the services or persons using such segregated accounts and omnibus Commission as a clearing agency to services.52 LCH SA states that the rule segregated accounts.47 have its 2014 and 2015 annual financial filing requirements under Section 19(b) statements audited in accordance with III. Requests for Exemptive Relief of the Act and Rule 19b–4 thereunder Public Company Accounting Oversight do not adequately consider A. Exemptive Relief From Sections 5 Board standards, its 2014 and 2015 circumstances in which a foreign and 6 of the Act financial records would need to be re- clearing agency that is registered with analyzed (including reviewing past LCH SA requests exemptive relief the CFTC for the purposes of clearing judgments regarding accounting from the requirements of Sections 5 and index CDS (which are swaps) and with figures), and that re-opening its audit 6 of the Act with respect to its ‘‘forced the Commission for the purpose of files in such a manner would present trade’’ mechanism that is used in the clearing single-name CDS (which are practical, and potentially legal calculation of mark-to-market prices for security-based swaps). Specifically, challenges as well as impose material open positions in cleared single-name such foreign clearing agencies may have burdens on LCH SA, its staff and CDS and exemptive relief for each of its completely offshore businesses that auditors, to complete such work prior to CDSClear members from the provide clearing services to non-U.S. the end of this calendar year.58 LCH SA requirements of Section 5 of the Act persons outside of the United States that states that such challenges would be with respect to their participation in the would not otherwise implicate the further exacerbated if the relief ‘‘forced trade’’ mechanism.48 LCH SA Commission’s registration requirements requested were to be granted only with represents that, as part of its clearing under the Act (nor those of the CFTC respect to LCH SA’s 2014 financial and risk management processes for under the Commodity Exchange Act).53 statements, as auditing its 2015 single-name CDS, it would compute the As a condition of this requested relief, financial statements in isolation would end-of-day settlement price for each LCH SA has represented that it would cause auditors to use unaudited 2014 contract in which any of its members provide notice of its non-U.S. business figures in their auditing report for the has a cleared position, based on off- rule changes to Commission staff once 2015 financial statements.59 market prices submitted by its members duly approved by its national competent and use those prices to establish a daily authorities in lieu of filing such changes D. Exemptive Relief From Rule 17a–22 mark on which to base margin under Section 19(b) and Rule 19b–4. LCH SA requests exemptive relief calculations. To promote the integrity of from the requirements of Rule 17a–22 to these price submissions, LCH SA would C. Exemptive Relief From Rules 17Ad– file with the Commission certain employ a ‘‘forced trade’’ mechanism 22(c)(2) and 17Ad–22(c)(2)(iii) materials made available to its pursuant to which its members would LCH SA requests exemptive relief participants regarding LCH SA’s non- be required to execute CDS trades based from the requirements of Rule 17Ad– U.S. business units where such on their price submissions.49 22(c)(2) and Rule 17Ad–22(c)(2)(iii) materials (i) primarily affect LCH SA’s LCH SA states that, absent an with respect to its financial statements clearing operations with respect to the exemption, this activity would cause for fiscal years 2014 and 2015.54 LCH non-U.S. business lines, and (ii) do not LCH SA’s ‘‘forced trade’’ mechanism to SA represents that pursuant to the significantly affect any CDSClear meet the criteria of Rule 3b–16 under listing rules to which its indirect parent operations or any rights or obligations of the Act 50 and, as a result, would require company LSEG is subject LCH SA is not LCH SA with respect to its CDSClear it to either register with the Commission permitted to publish its own financial services or persons using the CDSClear as a national securities exchange under statements prior to the publication of services.60 Additionally, LCH SA Sections 5 and 6 of the Act or obtain an LSEG’s financial statements.55 Given the requests relief from the requirement of exemption from registration. scope of LSEG’s business activities, LCH Rule 17a–22 to file physical copies with Additionally, any member that is a SA represents that it is unlikely that respect to materials primarily broker or dealer would not be permitted LSEG would be able to publish its concerning its CDSClear services. LCH to use any facility of an exchange or to financial statements within 60 days of SA requests instead, that it be permitted effect any transaction in a security, or to the end of its fiscal year, nor would LCH to provide the Commission with report any such transaction, unless the SA have control over when such electronic submissions for such exchange were registered as a national financial statements would ultimately materials.61 securities exchange or an exemption be published.56 IV. Solicitation of Comments were available.51 In addition, LCH SA represents that it currently prepares its financial Interested persons are invited to B. Exemptive Relief From Section 19(b) statements in accordance with submit written data, views, and of the Act and Rule 19b–4 Thereunder International Financial Reporting arguments concerning LCH SA’s Form LCH SA requests exemptive relief Standards (‘‘IFRS’’) and its financial CA–1 and Request for Exemptive Relief. from the requirements of Section 19(b) statements are audited in accordance The Commission requests comment
47 See generally LCH SA Form CA–1, Exhibit Q. 52 See Request for Exemptive Relief at 2–3. 57 See Request for Exemptive Relief at 14. 48 See Request for Exemptive Relief, at 2. 53 See Request for Exemptive Relief at 5–12. 58 Id. 49 See Request for Exemptive Relief, at 3–4. 54 See Request for Exemptive Relief at 4. 59 Id. 50 17 CFR 240.3b–16. 55 See Request for Exemptive Relief at 15. 60 See Request for Exemptive Relief at 15–16. 51 See Request for Exemptive Relief at 4. 56 Id. 61 Id.
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regarding whether granting the Request By the Commission. proposed rule change, disapprove the for Exemptive Relief is appropriate, Robert W. Errett, proposed rule change, or institute whether the conditions required for Deputy Secretary. proceedings to determine whether the granting such relief, as set forth in the [FR Doc. 2016–23747 Filed 9–30–16; 8:45 am] proposed rule change should be Request for Exemptive Relief, are BILLING CODE 8011–01–P disapproved. The 45th day after appropriate, and whether any other publication of the notice for this conditions should be required. In proposed rule change is September 29, particular, the Commission requests SECURITIES AND EXCHANGE 2016. The Commission is extending this comment concerning the COMMISSION 45-day time period. The Commission appropriateness of granting exemptive finds that it is appropriate to designate relief under Section 19(b) and Rule 19b– [Release No. 34–78949; File No. SR– a longer period within which to take NYSEArca-2016–107] 4 thereunder as described above, in action on the proposed rule change so connection with LCH SA’s non-U.S. Self-Regulatory Organizations; NYSE that it has sufficient time to consider the business. Comments may be submitted Arca, Inc.; Notice of Designation of a proposed rule change, as modified by by any of the following methods: Longer Period for Commission Action Amendment No. 1 thereto. on Proposed Rule Change, as Modified Accordingly, the Commission, Electronic Comments 6 by Amendment No. 1, Relating to pursuant to Section 19(b)(2) of the Act, • Use the Commission’s Internet Listing and Trading of Shares of designates November 13, 2016, as the comment form (http://www.sec.gov/ Cumberland Municipal Bond ETF date by which the Commission shall rules/sro.shtml) or Under NYSE Arca Equities Rule 8.600 either approve or disapprove or institute • Send an email to rule-comments@ proceedings to determine whether to sec.gov. Please include File Number September 27, 2016. disapprove the proposed rule change 600–36 on the subject line. On July 26, 2016, NYSE Arca, Inc. (File Number SR–NYSEArca–2016– filed with the Securities and Exchange 107), as modified by Amendment No. 1 Paper Comments Commission (‘‘Commission’’), pursuant thereto. • Send paper comments in triplicate to Section 19(b)(1) of the Securities For the Commission, by the Division of to Secretary, Securities and Exchange Exchange Act of 1934 (‘‘Act’’) 1 and Rule Trading and Markets, pursuant to delegated Commission, 100 F Street NE., 19b–4 thereunder,2 a proposed rule authority.7 Washington, DC 20549–1090. change to list and trade shares of the Robert W. Errett, All submissions should refer to File Cumberland Municipal Bond ETF Deputy Secretary. (‘‘Fund’’) under NYSE Arca Equities Number 600–36. This file number [FR Doc. 2016–23750 Filed 9–30–16; 8:45 am] Rule 8.600. The proposed rule change should be included on the subject line BILLING CODE 8011–01–P if email is used. To help the was published for comment in the Commission process and review your Federal Register on August 15, 2016.3 comments more efficiently, please use On September 15, 2016, the Exchange SECURITIES AND EXCHANGE only one method of submission. The filed Amendment No. 1 to the proposed COMMISSION Commission will post all comments on rule change.4 The Commission has received no comment letters on the [SEC File No. 270–68, OMB Control No. the Commission’s internet Web site 3235–0074] (http://www.sec.gov/rules/sro.shtml). proposed rule change, as modified by Copies of the Form CA–1 and the Amendment No. 1 thereto. Proposed Collection; Comment Section 19(b)(2) of the Act 5 provides Request for Exemptive Relief, all Request subsequent amendments, all written that, within 45 days of the publication statements with respect to LCH SA’s of notice of the filing of a proposed rule Upon Written Request Copies Available Form CA–1 and the Request for change, or within such longer period up From: Securities and Exchange Exemptive Relief that are filed with the to 90 days as the Commission may Commission, Office of FOIA Services, Commission, and all written designate if it finds such longer period 100 F Street NE., Washington, DC communications relating to the Form to be appropriate and publishes its 20549–2736 CA–1and the Request for Exemptive reasons for so finding or as to which the Extension: Relief between the Commission and any self-regulatory organization consents, Regulation C the Commission shall either approve the person, other than those that may be Notice is hereby given that, pursuant withheld from the public in accordance to the Paperwork Reduction Act of 1995 with the provisions of 5 U.S.C. 552, will 1 15 U.S.C. 78s(b)(1). 2 (44 U.S.C. 3501 et seq.), the Securities be available for Web site viewing and 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 78523 and Exchange Commission printing in the Commission’s Public (Aug. 9, 2016), 81 FR 54155. (‘‘Commission’’) is soliciting comments Reference Room, 100 F Street NE., 4 In Amendment No. 1, which amended and on the collection of information Washington, DC 20549, on official replaced the proposed rule change in its entirety, summarized below. The Commission business days between the hours of the Exchange: (1) Described additional diversification requirements that would apply to plans to submit this existing collection 10:00 a.m. and 3:00 p.m. the Fund’s holdings in municipal bonds; (2) of information to the Office of All comments received will be posted clarified the Fund’s holdings in non-exchange- Management and Budget for extension without change; the Commission does traded investment company securities; and (3) and approval. not edit personal identifying corrected certain references to the regular trading session of the Exchange. Amendment No. 1 to the Regulation C (17 CFR 230.400 through information from submissions. You proposed rule change is available at: https:// 230.498) under the Securities Act of should submit only information that www.sec.gov/comments/sr-nysearca-2016–107/ 1933 (15 U.S.C. 77a et seq.) provides you wish to make available publicly. All nysearca2016107–1.pdf. Because Amendment No. 1 standard instructions for persons filing submissions should refer to File to the proposed rule change does not materially alter the substance of the proposed rule change or registration statements under the Number 600–36 and should be raise unique or novel regulatory issues, Amendment submitted on or before November 2, No. 1 is not subject to notice and comment. 6 Id. 2016. 5 15 U.S.C. 78s(b)(2). 7 17 CFR 200.30–3(a)(31).
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Securities Act. The information sections 12(d)(1)(A) and 12(d)(1)(B) of hearing on the matter, the reason for the collected is intended to ensure the the Act. The requested order would request, and the issues contested. adequacy of information available to permit (a) index-based series of certain Persons who wish to be notified of a investors. Regulation C is assigned one open-end management investment hearing may request notification by burden hour for administrative companies (‘‘Funds’’) to issue shares writing to the Commission’s Secretary. convenience because the regulation redeemable in large aggregations only ADDRESSES: Secretary, Securities and simply prescribes the disclosure that (‘‘Creation Units’’); (b) secondary market Exchange Commission, 100 F Street NE., must appear in other filings under the transactions in Fund shares to occur at Washington, DC 20549–1090; federal securities laws. negotiated market prices rather than at Applicants: Three Canal Plaza, Suite Written comments are invited on: (a) net asset value (‘‘NAV’’); (c) certain 100, Portland, ME 04101. Whether this proposed collection of Funds to pay redemption proceeds, FOR FURTHER INFORMATION CONTACT: information is necessary for the proper under certain circumstances, more than Courtney S. Thornton, Senior Counsel at performance of the functions of the seven days after the tender of shares for (202) 551–6812, or David J. Marcinkus, agency, including whether the redemption; (d) certain affiliated Branch Chief, at (202) 551–6821 information will have practical utility; persons of a Fund to deposit securities (Division of Investment Management, (b) the accuracy of the agency’s estimate into, and receive securities from, the Chief Counsel’s Office). of the burden imposed by the collection Fund in connection with the purchase SUPPLEMENTARY INFORMATION: The of information; (c) ways to enhance the and redemption of Creation Units; (e) following is a summary of the quality, utility, and clarity of the certain registered management application. The complete application information collected; and (d) ways to investment companies and unit may be obtained via the Commission’s minimize the burden of the collection of investment trusts outside of the same Web site by searching for the file information on respondents, including group of investment companies as the number, or for an applicant using the through the use of automated collection Funds (‘‘Funds of Funds’’) to acquire Company name box, at http:// techniques or other forms of information shares of the Funds; and (f) certain www.sec.gov/search/search.htm or by technology. Consideration will be given Funds (‘‘Feeder Funds’’) to create and calling (202) 551–8090. to comments and suggestions submitted redeem Creation Units in-kind in a in writing within 60 days of this master-feeder structure.1 Summary of the Application publication. 1. Applicants request an order that An agency may not conduct or APPLICANTS: Foreside Advisor Services, would allow Funds to operate as index sponsor, and a person is not required to LLC (the ‘‘Initial Adviser’’), a limited exchange traded funds (‘‘ETFs’’).2 Fund respond to, a collection of information liability company organized under the shares will be purchased and redeemed unless it displays a currently valid laws of the state of Delaware and at their NAV in Creation Units only. All control number. registered as an investment adviser orders to purchase Creation Units and Please direct your written comment to under the Act, Foreside ETF Trust (the all redemption requests will be placed Pamela Dyson, Director/Chief ‘‘Trust’’), a Delaware statutory trust by or through an ‘‘Authorized Information Officer, Securities and registered under the Act as an open-end Participant,’’ which will have signed a Exchange Commission, c/o Remi Pavlik- management investment company with participant agreement with the Simon, 100 F Street NE., Washington, multiple series, and Foreside Fund _ Distributor. Shares will be listed and DC 20549 or send an email to: PRA Services, LLC (the ‘‘Distributor’’), a traded individually on a national [email protected]. Delaware limited liability company and securities exchange, where share prices Dated: September 27, 2016. broker-dealer registered under the will be based on the current bid/offer Robert W. Errett, Securities Exchange Act of 1934 market. Any order granting the (‘‘Exchange Act’’). Deputy Secretary. requested relief would be subject to the FILING DATES: The application was filed [FR Doc. 2016–23761 Filed 9–30–16; 8:45 am] terms and conditions stated in the on June 6, 2016, and amended on BILLING CODE 8011–01–P application. August 5, 2016 and September 22, 2016. 2. Each Fund will hold investment HEARING OR NOTIFICATION OF HEARING: An positions selected to correspond SECURITIES AND EXCHANGE order granting the requested relief will generally to the performance of an COMMISSION be issued unless the Commission orders Underlying Index. In the case of self- a hearing. Interested persons may indexing Funds (‘‘Self-Indexing [Investment Company Act Release No. request a hearing by writing to the Funds’’), an affiliated person, as defined 32284; 812–14660] Commission’s Secretary and serving 2 Foreside ETF Trust, et al.; Notice of applicants with a copy of the request, Applicants request that the order apply to the personally or by mail. Hearing requests initial series of the Trust, currently expected to be Application Foreside Diversified Miners Index ETF, and any should be received by the Commission additional series of the Trust, and any other open- September 26, 2016. by 5:30 p.m. on October 21, 2016, and end management investment company or series AGENCY: Securities and Exchange should be accompanied by proof of thereof, that may be created in the future (each, Commission (‘‘Commission’’). service on applicants, in the form of an included in the term ‘‘Fund’’), each of which will operate as an ETF and will track a specified index ACTION: Notice of an application for an affidavit, or for lawyers, a certificate of comprised of domestic or foreign equity and/or order under section 6(c) of the service. Pursuant to rule 0–5 under the fixed income securities (each, an ‘‘Underlying Investment Company Act of 1940 (the Act, hearing requests should state the Index’’). Any Fund will (a) be advised by the Initial nature of the writer’s interest, any facts Adviser or an entity controlling, controlled by, or ‘‘Act’’) for an exemption from sections under common control with the Initial Adviser 2(a)(32), 5(a)(1), 22(d), and 22(e) of the bearing upon the desirability of a (each such entity or any successor thereto, an Act and rule 22c–1 under the Act, under ‘‘Adviser’’) and (b) comply with the terms and sections 6(c) and 17(b) of the Act for an 1 The requested order would supersede a prior conditions of the application. The term order permitting the offering of ETFs. Foreside ‘‘successor,’’ as applied to each Adviser, means an exemption from sections 17(a)(1) and Advisor Services, LLC, et al., Investment Company entity that results from a reorganization into 17(a)(2) of the Act, and under section Act Release Nos. 30284 (Nov. 29, 2012) (notice) and another jurisdiction or change in the type of 12(d)(1)(J) for an exemption from 30318 (Dec. 27, 2012) (order). business organization.
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in section 2(a)(3) of the Act (‘‘Affiliated 6. With respect to Funds that effect The purchase of Creation Units by a Person’’), or an affiliated person of an creations and redemptions of Creation Fund of Funds directly from a Fund will Affiliated Person (‘‘Second-Tier Units in kind and that are based on be accomplished in accordance with the Affiliate’’), of the Trust or a Fund, of the certain Underlying Indexes that include policies of the Fund of Funds and will Adviser, of any sub-adviser to or foreign securities, applicants request be based on the NAVs of the Funds. promoter of a Fund, or of the Distributor relief from the requirement imposed by 9. Applicants also request relief to will compile, create, sponsor or section 22(e) in order to allow such permit a Feeder Fund to acquire shares maintain the Underlying Index.3 Funds to pay redemption proceeds 3. Shares will be purchased and within fifteen calendar days following of another registered investment redeemed in Creation Units and the tender of Creation Units for company managed by the Adviser generally on an in-kind basis. Except redemption. Applicants assert that the having substantially the same where the purchase or redemption will requested relief would not be investment objectives as the Feeder include cash under the limited inconsistent with the spirit and intent of Fund (‘‘Master Fund’’) beyond the circumstances specified in the section 22(e) to prevent unreasonable, limitations in section 12(d)(1)(A) and application, purchasers will be required undisclosed or unforeseen delays in the permit the Master Fund, and any to purchase Creation Units by actual payment of redemption proceeds. principal underwriter for the Master depositing specified instruments 7. Applicants request an exemption to Fund, to sell shares of the Master Fund (‘‘Deposit Instruments’’), and permit Funds of Funds to acquire Fund to the Feeder Fund beyond the shareholders redeeming their shares shares beyond the limits of section limitations in section 12(d)(1)(B). will receive specified instruments 12(d)(1)(A) of the Act; and the Funds, 10. Section 6(c) of the Act permits the (‘‘Redemption Instruments’’). The and any principal underwriter for the Commission to exempt any persons or Deposit Instruments and the Funds, and/or any broker or dealer transactions from any provision of the Redemption Instruments will each registered under the Exchange Act, to Act if such exemption is necessary or correspond pro rata to the positions in sell shares to Funds of Funds beyond appropriate in the public interest and the Fund’s portfolio (including cash the limits of section 12(d)(1)(B) of the consistent with the protection of positions) except as specified in the Act. The application’s terms and application. conditions are designed to, among other investors and the purposes fairly 4. Because shares will not be things, help prevent any potential (i) intended by the policy and provisions of individually redeemable, applicants undue influence over a Fund through the Act. Section 12(d)(1)(J) of the Act request an exemption from section control or voting power, or in provides that the Commission may 5(a)(1) and section 2(a)(32) of the Act connection with certain services, exempt any person, security, or that would permit the Funds to register transactions, and underwritings, (ii) transaction, or any class or classes of as open-end management investment excessive layering of fees, and (iii) persons, securities, or transactions, from companies and issue shares that are overly complex fund structures, which any provision of section 12(d)(1) if the redeemable in Creation Units only. are the concerns underlying the limits exemption is consistent with the public 5. Applicants also request an in sections 12(d)(1)(A) and (B) of the interest and the protection of investors. exemption from section 22(d) of the Act Act. Section 17(b) of the Act authorizes the and rule 22c–1 under the Act as 8. Applicants request an exemption Commission to grant an order secondary market trading in shares will from sections 17(a)(1) and 17(a)(2) of the permitting a transaction otherwise take place at negotiated prices, not at a Act to permit persons that are Affiliated prohibited by section 17(a) if it finds current offering price described in a Persons, or Second Tier Affiliates, of the that (a) the terms of the proposed Fund’s prospectus, and not at a price Funds, solely by virtue of certain transaction are fair and reasonable and based on NAV. Applicants state that (a) ownership interests, to effectuate do not involve overreaching on the part secondary market trading in shares does purchases and redemptions in-kind. The of any person concerned; (b) the not involve a Fund as a party and will deposit procedures for in-kind proposed transaction is consistent with not result in dilution of an investment purchases of Creation Units and the the policies of each registered in shares, and (b) to the extent different redemption procedures for in-kind investment company involved; and (c) prices exist during a given trading day, redemptions of Creation Units will be the proposed transaction is consistent or from day to day, such variances occur the same for all purchases and with the general purposes of the Act. as a result of third-party market forces, redemptions and Deposit Instruments such as supply and demand. Therefore, and Redemption Instruments will be For the Commission, by the Division of applicants assert that secondary market valued in the same manner as those Investment Management, under delegated transactions in shares will not lead to investment positions currently held by authority. discrimination or preferential treatment the Funds. Applicants also seek relief Robert W. Errett, among purchasers. Finally, applicants from the prohibitions on affiliated Deputy Secretary. represent that share market prices will transactions in section 17(a) to permit a Action as set forth or recommended herein be disciplined by arbitrage Fund to sell its shares to and redeem its Approved pursuant to authority delegated by opportunities, which should prevent shares from a Fund of Funds, and to the Commission under Public Law 87–592. shares from trading at a material engage in the accompanying in-kind For: Division of Investment Management discount or premium from NAV. transactions with the Fund of Funds.4 By: lllllllllllllllllll 3 Each Self-Indexing Fund will post on its Web 4 The requested relief would apply to direct sales [David J. Marcinkus] site the identities and quantities of the investment of shares in Creation Units by a Fund to a Fund of [FR Doc. 2016–23759 Filed 9–30–16; 8:45 am] positions that will form the basis for the Fund’s Funds and redemptions of those shares. Applicants, calculation of its NAV as of a specified time as set moreover, are not seeking relief from section 17(a) BILLING CODE 8011–01–P forth in each Fund’s prospectus. Applicants believe for, and the requested relief will not apply to, that requiring Self-Indexing Funds to maintain full transactions where a Fund could be deemed an portfolio transparency will help address, together Affiliated Person, or a Second-Tier Affiliate, of a with other protections, conflicts of interest with Fund of Funds because an Adviser or an entity with an Adviser provides investment advisory respect to such Funds. controlling, controlled by or under common control services to that Fund of Funds.
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SECURITIES AND EXCHANGE Exchange LLC (‘‘IEX’’ or the A. Self-Regulatory Organization’s COMMISSION ‘‘Exchange’’) filed with the Securities Statement of the Purpose of, and and Exchange Commission (the Statutory Basis for, the Proposed Rule Sunshine Act Meeting ‘‘Commission’’) the proposed rule Change Notice is hereby given, pursuant to change as described in Items I and II 1. Purpose below, which Items have been prepared the provisions of the Government in the Rule 11.380, entitled Risk by the self-regulatory organization. The Sunshine Act, Public Law 94–409, that Management, describes the optional Commission is publishing this notice to the Securities and Exchange ARC mechanism that is designed to Commission Advisory Committee on solicit comments on the proposed rule assist IEX clearing firms 8 in their risk Small and Emerging Companies will change from interested persons. management efforts. IEX does not charge hold a public meeting on Wednesday, I. Self-Regulatory Organization’s a fee for use of ARC. As described in the October 5, 2016, in Multi-Purpose Room rule, ARC can be configured to provide LL–006 at the Commission’s Statement of the Terms of Substance of the Proposed Rule Change trading limits based on the gross headquarters, 100 F Street NE., notional exposure for matched and Washington, DC. Pursuant to the provisions of Section routed trades for a clearing firm’s broker The meeting will begin at 9:30 a.m. 19(b)(1) under the Securities Exchange correspondent across MPIDs, by MPID, (EDT) and will be open to the public. Act of 1934 (‘‘Act’’),4 and Rule 19b–4 by FIX session or in combination, per Seating will be on a first-come, first- thereunder,5 Investors Exchange LLC clearing firm relationship. As specified served basis. Doors will open at 9:00 (‘‘IEX’’ or ‘‘Exchange’’) is filing with the in the rule, ARCs are elected, and the a.m. Visitors will be subject to security Securities and Exchange Commission upper value of any limits is set by the checks. The meeting will be webcast on clearing firm of a Member. Once the the Commission’s Web site at (‘‘Commission’’) a proposed rule change to amend Rule 11.380 to provide that gross notional exposure, as elected and www.sec.gov. configured, has exceeded the pre- the Aggregate Risk Controls (‘‘ARC’’) On September 15, 2016, the determined limit, IEX will reject new mechanism is available to any IEX Commission published notice of the orders and cancel all open orders for the Committee meeting (Release No. 33– Member as well as to clearing firms for applicable MPID(s) and/or FIX session 10208), indicating that the meeting is their broker correspondent IEX Member specified. As specified in paragraph open to the public and inviting the firms, and to specify the manner in (a)(3)(A) of Rule 11.380, gross notional public to submit written comments to which Members shall contact IEX to exposure is calculated as the absolute the Committee. This Sunshine Act arrange to utilize the ARC mechanism. sum of the notional value of all buy and notice is being issued because a majority The Exchange has designated this rule sell trades (i.e., equal to the value of of the Commission may attend the change as non-controversial under executed buys plus the absolute value of meeting. Section 19(b)(3)(A) of the Act 6 and executed long sells plus the absolute The agenda for the meeting includes provided the Commission with the value of executed short sells). There is matters relating to rules and regulations notice required by Rule 19b–4(f)(6)(iii) no netting of buys and sales in the same affecting small and emerging companies thereunder.7 symbol or across symbols. Gross under the federal securities laws. notional exposure resets for each new For further information, please The text of the proposed rule change is available at the Exchange’s Web site trading day. contact Brent J. Fields from the Office of IEX proposes to revise the rule to at www.iextrading.com, at the principal the Secretary at (202) 551–5400. provide that ARC is optionally available office of the Exchange, and at the Dated: September 28, 2016. to any Member as well as to clearing Commission’s Public Reference Room. Brent J. Fields, firms for their broker correspondent IEX Secretary. II. Self-Regulatory Organization’s Member firms. This change will serve to [FR Doc. 2016–23910 Filed 9–29–16; 11:15 am] Statement of the Purpose of, and clarify that ARC may be used by a BILLING CODE 8011–01–P Statutory Basis for, the Proposed Rule clearing firm Member for its own Change trading on IEX as well as for its correspondent firm customers that are SECURITIES AND EXCHANGE In its filing with the Commission, the IEX Members. Because a Member that is COMMISSION self-regulatory organization included self-clearing technically has a ‘‘clearing statements concerning the purpose of firm relationship’’ with itself, the [Release No. 34–78945; File No. SR–IEX– Exchange believes that the rule already 2016–15] and basis for the proposed rule change and discussed any comments it received provides that ARC may be used by a Self-Regulatory Organizations: on the proposed rule change. The text clearing firm Member for its own Investors Exchange LLC; Notice of of these statement may be examined at trading on IEX. In addition, IEX Filing and Immediate Effectiveness of the places specified in Item IV below. proposes to amend Rule 11.380 to Proposed Rule Change Related to The self-regulatory organization has provide that ARC is available to any Optional Risk Management Controls prepared summaries, set forth in Member. Thus, as proposed, ARC may Sections A, B, and C below, of the most be elected by a Member for its own September 27, 2016. significant aspects of such statements. trading on IEX (whether or not such Pursuant to Section 19(b)(1) 1 of the Member is self-clearing) as well as by a Securities Exchange Act of 1934 (the clearing firm Member for its ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 notice is hereby given that, on 8 As described in Rule 11.250(a), a clearing firm September 22, 2016, the Investors is an IEX Member that is a member of a registered 4 15 U.S.C. 78s(b)(1). clearing agency. Pursuant to IEX Rule 2.160(c)(4) an IEX Member must be a member of a registered 1 5 17 CFR 240.19b–4. 15 U.S.C. 78s(b)(1). clearing agency or clear transactions executed on 2 15 U.S.C. 78a. 6 15 U.S.C. 78s(b)(3)(A). the Exchange through another Member that is a 3 17 CFR 240.19b–4. 7 17 CFR 240.19b–4(f)(6)(iii). member of a registered clearing agency.
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correspondent firm customers that are continue to provide ARC to Members to their members, with functionality IEX Members.9 In addition, IEX without charge. similar to ARC.12 proposes to add new text to provide that In addition, the Exchange believes 2. Statutory Basis ARC limits may be increased or that the proposal is consistent with just decreased on an intra-day basis by a IEX believes that the proposed rule and equitable principles of trade Member or the clearing firm of a change is consistent with the provisions because ARC is available to all IEX Member, as applicable. Further, IEX of Sections 6(b) 10 of the Act in general, Members without charge. proposes to make several and furthers the objectives of Section 11 B. Self-Regulatory Organization’s nonsubstantive changes to 6(b)(5) of the Act, in particular, in that Statement on Burden on Competition subparagraphs (a)(2) and (3) of the rule it is designed to prevent fraudulent and text to simplify and streamline such manipulative acts and practices, to IEX does not believe that the provisions, including replacing GNE as promote just and equitable principles of proposed rule change will result in any a defined term within the rule text with trade, to remove impediments to and burden on competition that is not references simply to ‘‘gross notional perfect the mechanism of a free and necessary or appropriate in furtherance exposure’’ throughout. Finally, IEX open market and a national market of the purposes of the Act. The proposal proposes to add new paragraph (b) to system, and, in general, to protect is designed to clarify and expand the Rule 11.380 to provide that Members investors and the public interest, by availability of the optional ARC risk shall contact IEX Market Operations to clarifying and enhancing the risk management mechanism as described in arrange to utilize the ARC mechanism. management protections available to the Purpose section. The Exchange is Accordingly, IEX proposes to make the Exchange members. The Exchange not proposing to charge any fee for use following revisions to the rule: believes that the proposed rule change of ARC, which as proposed, is available 1. References in paragraph (a) to the supports these objectives because it is to all Members without charge. The term ‘‘Clearing Firms’’ will be replaced designed to enable all IEX Members to Exchange does not believe the proposed with ‘‘Members’’. manage and limit their own trading rule change will impose any intermarket 2. Paragraph (a)(1) will be revised to exposure on IEX, in addition to enabling burden on competition because other 13 state that ARCs are elected by a Member clearing firms to monitor their exchanges offer similar functionality. or the clearing firm of a Member. correspondent firm customer and their The Exchange also does not believe that 3. Paragraphs (a)(2) and (3) will be own trading exposure, including by the proposal will impose an intramarket revised to combine the provisions, intra-day increases or decreases in the burden on competition because it is replace the defined term GNE with limits. available to all Members and provides a Further, the Exchange believes that references to ‘‘gross notional exposure’’ mechanism to enable IEX Members to the proposed rule change is consistent throughout, and state that gross notional manage their risk by preventing trading with the protection of investors and the exposure accumulates the notional that is erroneous or exceeds a Member’s public interest because it provides a values for a Member or a clearing firm’s financial resources, thereby contributing mechanism to enable IEX Members to broker correspondent. to the stability of the equities markets. manage their risk by preventing trading 4. New paragraph (b) will be added to Accordingly, this proposal will have no that is erroneous or exceeds a Member’s impact on competition. specify that Members shall contact IEX financial resources, and thereby Market Operations at marketops@ contributing to the stability of the C. Self-Regulatory Organization’s iextrading.com to arrange to utilize equities markets. Statement on Comments on the ARC. The Exchange also believes that the Proposed Rule Change Received From IEX believes that making ARC aspects of the proposed rule change that Members, Participants, or Others available to all Members as an optional clarify that ARC is available to clearing Written comments were neither service will enhance the risk firms for their own trading on IEX is solicited nor received. management tools available to IEX consistent with the protection of Members. The Exchange notes, investors and the public interest III. Date of Effectiveness of the however, that use of ARC by a Member because it will eliminate any confusion Proposed Rule Change and Timing for does not automatically constitute in this regard among IEX Members. Commission Action compliance with IEX rules or SEC rules, In addition, the Exchange believes The Exchange has designated this rule nor does it replace Member-managed that the nonsubstantive changes to filing as non-controversial under risk management solutions. The subparagraphs (a)(2) and (3) of the rule Section 19(b)(3)(A) 14 of the Act and Exchange does not propose to require text to simplify and streamline such Rule 19b–4(f)(6) 15 thereunder. Because Members to use ARC, and Members may provisions are consistent with the the proposed rule change does not: (i) use any other appropriate risk- protection of investors and the public Significantly affect the protection of management tool or service instead of, interest because such changes will investors or the public interest; (ii) or in combination with, ARC. The enhance the readability of the relevant impose any significant burden on Exchange will not provide preferential rule provisions. competition; and (iii) become operative treatment to Members using ARC, nor Finally, the Exchange believes that for 30 days from the date on which it will the use of ARC impact a Member’s adding rule text to specify how IEX was filed, or such shorter time as the use of IEX other than when it results in Members shall contact IEX Market Commission may designate if consistent orders being rejected or cancelled Operations to arrange to utilize the ARC pursuant to ARC. In addition, IEX will mechanism will provide greater clarity 12 See, for example, Nasdaq Stock Market LLC and eliminate any confusion in this Rules 6100–6120; Securities Exchange Act Release 9 In the case of a Member that is subject to ARC regard. No. 68330 (November 30, 2012), 77 FR 72894 limits set by its clearing firm, the Member will be (December 6, 2012) (File No. SR–BATS–2012–045 The Exchange notes that most other concerning Bats BZX Exchange, Inc. (formerly advised of such limits by IEX. In the event a exchanges offer risk management tools Member that is subject to ARC limits set by its BATS Exchange, Inc.) Risk Management Tool). clearing firm also elects to set ARC limits for its 13 See, supra note 12. own trading, the Exchange will apply both such 10 15 U.S.C. 78f. 14 15 U.S.C. 78s(b)(3)(A). limits with a lower limit(s) being applicable. 11 15 U.S.C. 78f(b)(5). 15 17 CFR 240.19b–4(f)(6).
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with the protection of investors and the under Section 19(b)(2)(B) 20 of the Act to For the Commission, by the Division of public interest, it has become effective determine whether the proposed rule Trading and Markets, pursuant to delegated pursuant to Section 19(b)(3)(A) of the change should be approved or authority.21 Act and Rule 19b–4(f)(6) thereunder.16 disapproved. Robert W. Errett, Deputy Secretary. A proposed rule change filed under IV. Solicitation of Comments Rule 19b–4(f)(6) 17 normally does not [FR Doc. 2016–23748 Filed 9–30–16; 8:45 am] become operative prior to 30 days after Interested persons are invited to BILLING CODE 8011–01–P the date of the filing. However, pursuant submit written data, views and to Rule 19b–4(f)(6)(iii),18 the arguments concerning the foregoing, Commission may designate a shorter including whether the proposed rule SECURITIES AND EXCHANGE time if such action is consistent with the change is consistent with the Act. COMMISSION Comments may be submitted by any of protection of investors and the public [Release No. 34–78953; File No. SR–NYSE– interest. The Exchange has asked the the following methods: 2016–11] Commission to waive the 30-day Electronic Comments Self-Regulatory Organizations; New operative delay to make ARC risk • management protections immediately Use the Commission’s Internet York Stock Exchange LLC; Notice of available to all Members. While IEX has comment form (http://www.sec.gov/ Withdrawal of a Proposed Change, as rules/sro.shtml); or Modified by Amendment Nos. 1 and 2, proposed certain clarifying changes to • Rule 11.380 that do not materially alter Send an email to rule-comments@ Establishing Fees Relating to End the scope of the rule, the primary sec.gov. Please include File Number SR– Users and Amending the Definition of material change extends the rule beyond IEX–2016–15 on the subject line. ‘‘Affiliate,’’ as Well as Amending the clearing brokers and makes the ARC Paper Comments NYSE Price List To Reflect the Changes optionally available to any Member. IEX • has represented above that, if an IEX Send paper comments in triplicate September 27, 2016. Member elects to use the ARC, IEX will to Secretary, Securities and Exchange inform that Member if its clearing firm Commission, 100 F Street NE., On April 4, 2016, New York Stock also set ARC limits for the Member, in Washington, DC 20549–1090. Exchange LLC (the ‘‘Exchange’’ or which case IEX would apply the lower All submissions should refer to File ‘‘NYSE’’) filed with the Securities and limit. The Commission believes that Number SR–IEX–2016–15. This file Exchange Commission (‘‘Commission’’), extending the ARC functionality to all number should be included on the pursuant to Section 19(b)(1) of the subject line if email is used. To help the Securities Exchange Act of 1934 Members will provide them with an 1 2 additional tool that can be used as part Commission process and review your (‘‘Act’’) and Rule 19b-4 thereunder, a of a Member’s approach to risk comments more efficiently, please use proposed rule change to amend the co- management, which may promote the only one method. The Commission will location section of the NYSE Price List maintenance of fair and orderly markets. post all comments on the Commission’s to establish fees relating to end users of For this reason, the Commission Internet Web site (http://www.sec.gov/ certain co-location Users in the believes that waiver of the operative rules/sro.shtml). Copies of the Exchange’s data center and to amend delay is consistent with the protection submission, all subsequent the definition of ‘‘Affiliate.’’ The of investors and the public interest. amendments, all written statements Commission published the proposed with respect to the proposed rule rule change for comment in the Federal Accordingly, the Commission hereby 3 waives the operative delay and change that are filed with the Register on April 22, 2016. On April designates the proposed rule change Commission, and all written 29, 2016, the Exchange filed Amendment No. 1 to the proposed rule operative upon filing.19 communications relating to the proposed rule change between the change.4 The Commission received two At any time within 60 days of the Commission and any person, other than comment letters on the proposed rule filing of the proposed rule change, the 5 those that may be withheld from the change. On June 8, 2016, the Commission summarily may public in accordance with the Commission extended the time period temporarily suspend such rule change if provisions of 5 U.S.C. 552, will be within which to approve the proposed it appears to the Commission that such available for Web site viewing and rule change, disapprove the proposed action is necessary or appropriate in the printing in the Commission’s Public public interest, for the protection of 21 Reference Room, 100 F Street NE., 17 CFR 200.30–3(a)(12). investors, or otherwise in furtherance of 1 Washington, DC 20549, on official 15 U.S.C. 78s(b)(1). the purposes of the Act. If the 2 17 CFR 240.19b–4. business days between the hours of Commission takes such action, the 3 See Securities Exchange Act Release No. 34– 10:00 a.m. and 3:00 p.m. Copies of the Commission shall institute proceedings 77642 (April 18, 2016), 81 FR 23786 (‘‘Notice’’). filing also will be available for 4 Amendment No. 1 made technical changes inspection and copying at the principal relating to the General Notes numbering and 16 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– office of the Exchange. All comments references in the Co-location section of the Price 4(f)(6) requires a self-regulatory organization to give List. Amendment No. 1 is available on the the Commission written notice of its intent to file received will be posted without change; Commission’s Web site at https://www.sec.gov/ the proposed rule change at least five business days the Commission does not edit personal comments/sr-nyse-2016-11/nyse201611-1.pdf. prior to the date of filing of the proposed rule identifying information from 5 See Letter from Michael Friedman, General change, or such shorter time as designated by the submissions. You should submit only Counsel and Chief Compliance Officer, Trillium, to Commission. The Exchange has satisfied this Brent J. Fields, Secretary, Securities and Exchange requirement. information that you wish to make Commission, dated May 13, 2016 (‘‘Friedman 17 17 CFR 240.19b–4(f)(6). available publicly. All submissions Letter’’), and Letter from Eero Pikat to Brent J. 18 17 CFR 240.19b–4(f)(6)(iii). should refer to File Number SR–IEX– Fields, Secretary, Securities and Exchange 19 For purposes only of waiving the 30-day 2016–15 and should be submitted on or Commission, dated, May 13, 2016 (‘‘Pikat Letter’’) operative delay, the Commission has also before October 24, 2016. (together, the ‘‘Comment Letters,’’). considered the proposed rule’s impact on In response to the Comment Letters, the NYSE efficiency, competition, and capital formation. See submitted a response (‘‘Response Letter’’) and filed 15 U.S.C. 78c(f). 20 15 U.S.C. 78s(b)(2)(B). Amendment No. 2.
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rule change, or institute proceedings to comments on the proposed rule change Service MEI Ports 5 per matching engine determine whether to approve or from interested persons. to which they connect. The Exchange disapprove the proposed rule change to currently assesses the following MEI I. Self-Regulatory Organization’s July 21, 2016.6 On June 24, 2016, the Port fees: (i) $5,000 for Market Maker Statement of the Terms of Substance of Exchange submitted a Response Letter Assignments in up to 5 option classes or the Proposed Rule Change and filed Amendment No. 2 to the up to 10% of option classes by volume; proposed rule change. 7 On July 27, The Exchange is filing a proposal to (ii) $10,000 for Market Maker 2016, the Commission instituted amend the MIAX Options Fee Schedule Assignments in up to 10 option classes proceedings pursuant to Exchange Act (the ‘‘Fee Schedule’’). While changes to or up to 20% of option classes by Section 19(b)(2)(B) to determine the Fee Schedule pursuant to this volume; (iii) $14,000 for Market Maker whether to approve or disapprove the proposal are effective upon filing, the Assignments in up to 40 option classes proposed rule change, as modified by Exchange has designated these changes or up to 35% of option classes by Amendment Nos. 1 and 2.8 The to be operative on October 1, 2016. volume; (iv) $17,500 for Market Maker Commission received no additional The text of the proposed rule change Assignments in up to 100 option classes comments on the proposed rule change. is available on the Exchange’s Web site or up to 50% of option classes by On September 22, 2016, the Exchange at http://www.miaxoptions.com/filter/ volume; and (v) $20,500.00 for Market withdrew the proposed rule change, as wotitle/rule_filing, at MIAX’s principal Maker Assignments in over 100 option modified by Amendment Nos. 1 and 2. office, and at the Commission’s Public classes or over 50% of option classes by (SR–NYSE–2016–11). Reference Room. volume up to all option classes listed on 6 For the Commission, by the Division of MIAX. In each of the foregoing II. Self-Regulatory Organization’s categories, the stated fee applies if the Trading and Markets, pursuant to delegated Statement of the Purpose of, and authority.9 less of the two applicable measurements Statutory Basis for, the Proposed Rule is met. For example, a Market Maker Robert W. Errett, Change Deputy Secretary. that wishes to make markets in just one symbol would require the two (2) MEI [FR Doc. 2016–23754 Filed 9–30–16; 8:45 am] In its filing with the Commission, the Exchange included statements Ports in a single matching engine; a BILLING CODE 8011–01–P concerning the purpose of and basis for Market Maker wishing to make markets the proposed rule change and discussed in all symbols traded on MIAX would SECURITIES AND EXCHANGE any comments it received on the require the two (2) MEI Ports in each of COMMISSION proposed rule change. The text of these the Exchange’s matching engines. The statements may be examined at the Exchange also currently charges $50 per [Release No. 34–78950; File No. SR–MIAX– places specified in Item IV below. The month for each additional Limited 2016–33] Exchange has prepared summaries, set Service MEI Port per matching engine for Market Makers over and above the Self-Regulatory Organizations; Miami forth in sections A, B, and C below, of two (2) Limited Service MEI Ports per International Securities Exchange LLC; the most significant aspects of such matching engine that are allocated with Notice of Filing and Immediate statements. the Full Service MEI Ports. The Full Effectiveness of Proposed Rule A. Self-Regulatory Organization’s Service MEI Ports, Limited Service MEI Change To Amend Its Fee Schedule Statement of the Purpose of, and Ports, and the additional Limited Statutory Basis for, the Proposed Rule September 27, 2016. Service MEI Ports all include access to Change Pursuant to the provisions of Section MIAX’s primary and secondary data 19(b)(1) of the Securities Exchange Act 1. Purpose centers and its disaster recovery center. 1 The Exchange originally added the of 1934 (‘‘Act’’) and Rule 19b–4 The Exchange proposes to amend the 2 Limited Service MEI Ports to enhance thereunder, notice is hereby given that MIAX Options Fee Schedule (the ‘‘Fee on September 15, 2016, Miami the MEI Port connectivity made Schedule’’) to offer two (2) additional available to Market Makers, and International Securities Exchange LLC Limited Service MIAX Express Interface (‘‘MIAX’’ or ‘‘Exchange’’) filed with the subsequently made additional Limited (‘‘MEI’’) Ports to Market Makers. Service MEI Ports available to Market Securities and Exchange Commission Currently, MIAX assesses monthly (‘‘Commission’’) a proposed rule change Makers.7 Limited Service MEI Ports MEI Port Fees on Market Makers based have been well received by Market as described in Items I, II, and III below, upon the number of MIAX matching which Items have been prepared by the Makers since their addition. The engines 3 used by the Market Maker. Exchange. The Commission is Exchange now proposes to offer to Market Makers are allocated two (2) Full Market Makers the ability to purchase publishing this notice to solicit 4 Service MEI Ports and two (2) Limited an additional two (2) Limited Service 6 See Securities Exchange Act Release No. 34– MEI Ports per matching engine over and 3 A ‘‘matching engine’’ is a part of the MIAX 77976 (June 2, 2016), 81 FR 36981. electronic system that processes options quotes and 7 In Amendment No. 2 the Exchange proposed trades on a symbol-by-symbol basis. Some matching Makers are limited to two Full Service MEI Ports that Rebroadcasting Users and Transmittal Users engines will process option classes with multiple per matching engine. would not be charged for their first two Multicast root symbols, and other matching engines will be 5 Limited Service MEI Ports provide Market End Users and Unicast End Users, respectively, and dedicated to one single option root symbol (for Makers with the ability to send eQuotes and quote offers additional support for the proposal. example, options on SPY will be processed by one purge messages only, but not Market Maker Quotes, Amendment No. 2 was noticed in the Commission’s single matching engine that is dedicated only to to the MIAX System. Limited Service MEI Ports are Order Instituting Proceedings and is also available SPY). A particular root symbol may only be also capable of receiving administrative on the Commission’s Web site at https:// assigned to a single designated matching engine. A information. Market Makers initially receive two www.sec.gov/comments/sr-nyse-2016-11/ particular root symbol may not be assigned to Limited Service MEI Ports per matching engine. nyse201611-4.pdf. multiple matching engines. 6 See MIAX Fee Schedule, Section 5)d)ii). 8 See Securities Exchange Act Release No. 34– 4 Full Service MEI Ports provide Market Makers 7 See Securities Exchange Act Release No. 70137 78387 (July 21, 2016); 81 FR 49300. with the ability to send Market Maker quotes, (August 8, 2013), 78 FR 49586 (August 14, 2013) 9 17 CFR 200.30–3(a)(12). eQuotes, and quote purge messages to the MIAX (SR–MIAX–2013–39); see also Exchange Act 1 15 U.S.C. 78s(b)(1). System. Full Service MEI Ports are also capable of Release No. 70903 (November 20, 2013), 78 FR 228 2 17 CFR 240.19b–4. receiving administrative information. Market (November 26, 2013) (SR–MIAX–2013–52).
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above the current two (2) additional in that it is designed to promote just and Service MEI Ports comports with this Limited Service MEI Ports per matching equitable principles of trade, to remove objective. The Exchange believes that engine that are available for purchase by impediments to and perfect the the proposal will increase competition Market Makers. The Exchange proposes mechanism of a free and open market amongst Market Makers of different to charge the same amount that it and a national market system, and, in sizes and business models by currently charges, $50 per month, for general to protect investors and the encouraging Market Makers to connect each extra Limited Service MEI Port per public interest and is not designed to additional Limited Service Ports to matching engine. The Exchange permit unfair discrimination between independent servers that host their proposes making a corresponding customers, issuers, brokers and dealers. eQuote and purge functionality and change to footnote 31 of the Exchange’s The Exchange believes that its thereby increase such functionality. The Fee Schedule to specify that Market proposal is consistent with Section Exchange notes that it operates in a Makers will now be limited to 6(b)(4) of the Act because only Market highly competitive market in which purchasing four (4) additional Limited Makers that decide that they need the market participants can readily favor Service MEI Ports per matching engine, extra Limited Service MEI Ports will be competing venues if they deem fee for a total of six (6) per matching engine. charged the additional fee. The levels at a particular venue to be All other fees related to MEI Ports shall Exchange further believes that the excessive. In such an environment, the remain unchanged. availability of the additional Limited Exchange must continually adjust its The purpose of this amendment to the Service MEI Ports is equitable and not fees to remain competitive with other Fee Schedule is to provide Market unfairly discriminatory because it exchanges and in order to attract market Makers with greater and improved further enhances Market Makers’ access participants to use its services. The technical flexibility to connect to the MIAX System and consequently Exchange believes that the proposal additional Limited Service MEI Ports to enhances the marketplace by helping reflects this competitive environment independent servers that host their Market Makers to better manage risk, because it increases the Exchange’s fees eQuote and purge functionality. The thus preserving the integrity of the in a manner that continues to encourage Exchange believes that the offering of MIAX markets, all to the benefit of and market participants to register as Market additional ports will help Market protection of investors and the public as Makers on the Exchange, to provide Makers mitigate the risk of using the a whole. liquidity, and to attract order flow. To same server for all of their Market Maker The Exchange also believes that its the extent that this purpose is achieved, quoting activity. By using the additional proposal is consistent with the all the Exchange’s market participants 11 Limited Service MEI Ports for risk objectives of Section 6(b)(5) of the Act should benefit from the improved purposes, Market Makers can place because the additional Limited Service market liquidity. purge functionality on a different server MEI Ports are available to all Market than the Market Maker quoting server Makers and the proposed fees assessable C. Self-Regulatory Organization’s (via the Limited Service MEI Ports), for the additional Limited Service MEI Statement on Comments on the which provides them a failsafe for Ports apply equally to all Market Makers Proposed Rule Change Received From getting out of the market in case they regardless of type, and access to the Members, Participants, or Others have an issue with the quote server. Exchange is offered on terms that are Written comments were neither Market Makers can also use the extra not unfairly discriminatory. The solicited nor received. Limited Service MEI Ports to submit Exchange designed the fee rates in order eQuotes. Since eQuotes are frequently to provide objective criteria for Market III. Date of Effectiveness of the generated by a different algorithm that Makers of different sizes and business Proposed Rule Change and Timing for determines when to respond to an models to be assessed a MEI Port fee Commission Action auction message, the Exchange believes and to have technical connectivity that The foregoing rule change has become that the offering of additional ports will best matches their quoting activity on effective pursuant to Section further enable Market Makers to connect the Exchange and the offering of 19(b)(3)(A)(ii) of the Act,12 and Rule to a different server that processes additional Limited Service MEI Ports 19b-4(f)(2) 13 thereunder. At any time auctions and eQuotes rather than comports with this objective. within 60 days of the filing of the forcing them to use their Market Maker B. Self-Regulatory Organization’s proposed rule change, the Commission Standard quote server as a gateway for Statement on Burden on Competition summarily may temporarily suspend communicating eQuotes to MIAX. such rule change if it appears to the The Exchange does not believe that Commission that such action is 2. Statutory Basis the proposed rule change will result in necessary or appropriate in the public The Exchange believes that its any burden on competition that is not interest, for the protection of investors, proposal to amend its Fee Schedule is necessary or appropriate in furtherance or otherwise in furtherance of the consistent with Section 6(b) of the Act 8 of the purposes of the Act. The purposes of the Act. If the Commission in general, and furthers the objectives of Exchange believes that the proposal takes such action, the Commission shall Section 6(b)(4) of the Act 9 in particular, increases both intermarket and institute proceedings to determine in that it provides for the equitable intramarket competition by enabling whether the proposed rule should be allocation of reasonable dues, fees and Market Makers to enhance their approved or disapproved. other charges among members and connectivity to the Exchange in a issuers and other persons using any manner that is designed to provide IV. Solicitation of Comments facility or system which the Exchange Market Makers of different sizes and Interested persons are invited to operates or controls. The Exchange also business models to be assessed a MEI submit written data, views, and believes the proposal furthers the Port fee and to have technical arguments concerning the foregoing, objectives of Section 6(b)(5) of the Act 10 connectivity that best matches their including whether the proposed rule quoting activity on the Exchange and change is consistent with the Act. 8 15 U.S.C. 78f(b). the offering of additional Limited 9 15 U.S.C. 78f(b)(4). 12 15 U.S.C. 78s(b)(3)(A)(ii). 10 15 U.S.C. 78f(b)(5). 11 15 U.S.C. 78f(b)(5). 13 17 CFR 240.19b–4(f)(2).
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Comments may be submitted by any of SECURITIES AND EXCHANGE Exchange filed Amendment No. 2 to the the following methods: COMMISSION proposed rule change.7 On July 27, 2016, the Commission instituted Electronic Comments [Release No. 34–78952; File No. SR– NYSEArca–2016–19] proceedings pursuant to Exchange Act • Use the Commission’s Internet Section 19(b)(2)(B) to determine comment form (http://www.sec.gov/ Self-Regulatory Organizations; NYSE whether to approve or disapprove the proposed rule change, as modified by rules/sro.shtml); or Arca, Inc.; Notice of Withdrawal of a Amendment Nos. 1 and 2.8 The • Proposed Rule Change, as Modified by Send an email to rule-comments@ Amendment Nos. 1 and 2, To Establish Commission received no comments in sec.gov. Please include File Number SR– Certain End User Fees, Amend the response. MIAX–2016–33 on the subject line. Definition of Affiliate, and Amend the On September 22, 2016, the Exchange withdrew the proposed rule change, as Paper comments Co-Location Section of the Fee Schedule To Reflect the Changes modified by Amendment Nos. 1 and 2. • Send paper comments in triplicate (SR–NYSEArca–2016–19). to Secretary, Securities and Exchange September 27, 2016. For the Commission, by the Division of On April 4, 2016, NYSE Arca, Inc. Commission, 100 F Street NE., Trading and Markets, pursuant to delegated (the ‘‘Exchange’’ or ‘‘NYSE Arca’’) filed 9 Washington, DC 20549–1090. authority. with the Securities and Exchange Robert W. Errett, All submissions should refer to File Commission (‘‘Commission’’), pursuant Deputy Secretary. to Section 19(b)(1) of the Securities Number SR–MIAX–2016–33. This file [FR Doc. 2016–23753 Filed 9–30–16; 8:45 am] Exchange Act of 1934 (‘‘Act’’) 1 and Rule number should be included on the BILLING CODE 8011–01–P subject line if email is used. To help the 19b–4 thereunder,2 a proposed rule Commission process and review your change to amend the co-location section comments more efficiently, please use of the NYSE Arca Equities Schedule of SECURITIES AND EXCHANGE only one method. The Commission will Fees and Charges for Exchange Services COMMISSION post all comments on the Commission’s and the NYSE Arca Options Fee Schedule to establish fees relating to [Release No. 34–78951; File No. SR– Internet Web site (http://www.sec.gov/ end users of certain co-location Users in NYSEMKT–2016–15] rules/sro.shtml). Copies of the the Exchange’s data center and to submission, all subsequent Self-Regulatory Organizations; NYSE amend the definition of ‘‘Affiliate.’’ The MKT LLC; Notice of Withdrawal of a amendments, all written statements Commission published the proposed with respect to the proposed rule Proposed Change, as Modified by rule change for comment in the Federal Amendment Nos. 1 and 2, Establishing change that are filed with the Register on April 22, 2016.3 On April Fees Relating to End Users and Commission, and all written 29, 2016, the Exchange filed Amending the Definition of ‘‘Affiliate,’’ communications relating to the Amendment No. 1 to the proposed rule as Well as Amending the NYSE MKT proposed rule change between the change.4 The Commission received no Equities Price List and the NYSE Amex Commission and any person, other than comments on the proposed rule Options Fee Schedule To Reflect the those that may be withheld from the change.5 On June 8, 2016, the Changes public in accordance with the Commission extended the time period provisions of 5 U.S.C. 552, will be within which to approve the proposed September 27, 2016. available for Web site viewing and rule change, disapprove the proposed On April 4, 2016, NYSE MKT LLC printing in the Commission’s Public rule change, or institute proceedings to (the ‘‘Exchange’’ or ‘‘NYSE MKT’’) filed Reference Room, 100 F Street NE., determine whether to approve or with the Securities and Exchange Washington, DC 20549 on official disapprove the proposed rule change to Commission (‘‘Commission’’), pursuant 6 business days between the hours of July 21, 2016. On June 24, 2016, the to Section 19(b)(1) of the Securities 10:00 a.m. and 3:00 p.m. Copies of the Exchange Act of 1934 (‘‘Act’’) 1 and Rule 1 15 U.S.C. 78s(b)(1). 19b–4 thereunder,2 a proposed rule filing also will be available for 2 17 CFR 240.19b–4. change to amend the co-location section inspection and copying at the principal 3 See Securities Exchange Act Release No. 34– office of the Exchange. All comments 77641 (April 18, 2016), 81 FR 23773 (‘‘Notice’’). of the NYSE MKT Equities Price List received will be posted without change; 4 Amendment No. 1 made technical changes and the NYSE Amex Options Fee the Commission does not edit personal relating to the General Notes numbering and Schedule to establish fees relating to references in the Co-location section of the Fee end users of certain co-location Users in identifying information from Schedules. Amendment No. 1 is available on the submissions. You should submit only Commission’s Web site at https://www.sec.gov/ the Exchange’s data center and to information that you wish to make comments/sr-nysearca-2016-19/nysearca201619- amend the definition of ‘‘Affiliate.’’ The 1.pdf. Commission published the proposed available publicly. All submissions 5 The Commission received two comment letters should refer to File Number SR–MIAX– on a companion filing, NYSE–2016–11 (the ‘‘NYSE 7 In Amendment No. 2 the Exchange proposed 2016–33 and should be submitted on or companion filing’’), filed by the Exchange’s affiliate, the New York Stock Exchange LLC (‘‘NYSE’’). See that Rebroadcasting Users and Transmittal Users before October 24, 2016. Letter from Michael Friedman, General Counsel and would not be charged for their first two Multicast Chief Compliance Officer, Trillium, to Brent J. End Users and Unicast End Users, respectively, and For the Commission, by the Division of offers additional support for the proposal. Trading and Markets, pursuant to delegated Fields, Secretary, Securities and Exchange Commission, dated May 13, 2016 (‘‘Friedman Amendment No. 2 was noticed at part of the 14 authority. Letter’’), and Letter from Eero Pikat to Brent J. Commission’s Order Instituting Proceedings and is also available on the Commission’s Web site at Robert W. Errett, Fields, Secretary, Securities and Exchange Commission, dated, May 13, 2016 (‘‘Pikat Letter’’) https://www.sec.gov/comments/sr-nysearca-2016- Deputy Secretary. (together, the ‘‘Comment Letters,’’). 19/nysearca201619-2.pdf. 8 [FR Doc. 2016–23751 Filed 9–30–16; 8:45 am] In response to the Comment Letters, the NYSE See Securities Exchange Act Release No. 34– submitted a response and filed Amendment No. 2 78388; (July 21, 2016); 81 FR 49332. BILLING CODE 8011–01–P to the NYSE companion filing. 9 17 CFR 200.30–3(a)(12). 6 See Securities Exchange Act Release No. 34– 1 15 U.S.C. 78s(b)(1). 14 17 CFR 200.30–3(a)(12). 77977 (June 2, 2016), 81 FR 36967. 2 17 CFR 240.19b–4.
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rule change for comment in the Federal SECURITIES AND EXCHANGE information will have practical utility; Register on April 22, 2016.3 On April COMMISSION (b) the accuracy of the agency’s estimate 29, 2016, the Exchange filed of burden of the collection of Amendment No. 1 to the proposed rule Proposed Collection; Comment information; (c) ways to enhance the change.4 The Commission received no Request quality, utility, and clarity of the comments on the proposed rule Upon Written Request Copies Available information collected; and (d) ways to 5 change. On June 8, 2016, the From: Securities and Exchange minimize the burden of the collection of Commission extended the time period Commission, Office of FOIA Services, information on respondents, including within which to approve the proposed 100 F Street NE., Washington, DC through the use of automated collection rule change, disapprove the proposed 20549–2736 techniques or other forms of information rule change, or institute proceedings to technology. Consideration will be given determine whether to approve or Extension: to comments and suggestions submitted Regulation 13D and Regulation 13G; disapprove the proposed rule change to Schedule 13D and Schedule 13G, SEC in writing within 60 days of this 6 July 21, 2016. On June 24, 2016, the File No. 270–137, OMB Control No. publication. Exchange filed Amendment No. 2 to the 3235–0145 An agency may not conduct or proposed rule change.7 On July 27, sponsor, and a person is not required to Notice is hereby given that, pursuant 2016, the Commission instituted respond to, a collection of information to the Paperwork Reduction Act of 1995 unless it displays a currently valid proceedings pursuant to Exchange Act (44 U.S.C. 3501 et seq.), the Securities control number. Section 19(b)(2)(B) to determine and Exchange Commission Please direct your written comments whether to approve or disapprove the (‘‘Commission’’) is soliciting comments to Pamela Dyson, Director/Chief proposed rule change, as modified by on the collection of information 8 Information Officer, Securities and Amendment Nos. 1 and 2. The summarized below. The Commission Exchange Commission, c/o Remi Pavlik- Commission received no comments in plans to submit this existing collection Simon, 100 F Street NE., Washington, response. of information to the office of DC 20549. On September 22, 2016, the Exchange Management and Budget for extension withdrew the proposed rule change, as and approval. Dated: September 27, 2016. modified by Amendment Nos. 1 and 2. Schedules 13D and 13G are filed Robert W. Errett, (SR–NYSEMKT–2016–15). pursuant to Sections 13(d) and 13(g) of Deputy Secretary. For the Commission, by the Division of the Securities Exchange Act and [FR Doc. 2016–23760 Filed 9–30–16; 8:45 am] Trading and Markets, pursuant to delegated Regulations 13D and 13G thereunder to BILLING CODE 8011–01–P authority.9 report beneficial ownership of equity Robert W. Errett, securities registered under Section 12 of Deputy Secretary. the Exchange Act. Regulations 13D and SMALL BUSINESS ADMINISTRATION [FR Doc. 2016–23752 Filed 9–30–16; 8:45 am] 13G provide investors, the subject issuers, and market participants with [Disaster Declaration #14869 and #14870] BILLING CODE 8011–01–P information about the accumulation of equity securities that may have the Wisconsin Disaster #WI–00053 3 See Securities Exchange Act Release No. 34– 77640 (April 18, 2016), 81 FR 23780 (‘‘Notice’’). potential to change or influence control AGENCY: U.S. Small Business 4 Amendment No. 1 made technical changes of an issuer. Schedules 13D and 13G are Administration. relating to the General Notes numbering and filed by persons, including small ACTION: Notice references in the Co-location section of the Fee entities, to report their ownership of Schedules. Amendment No. 1 is available at https:// more than 5% of a class of equity www.sec.gov/comments/sr-nysemkt-2016-15/ SUMMARY: This is a notice of an nysemkt201615-1.pdf. securities registered under Section 12. Administrative declaration of a disaster 5 The Commission received two comment letters We estimate that it takes approximately for the State of Wisconsin dated 09/21/ on a companion filing, NYSE–2016–11 (the ‘‘NYSE 14.5 burden hours to prepare a Schedule 2016. companion filing’’), filed by the Exchange’s affiliate, 13D and that it is filed by approximately Incident: Severe Storms and Flash the New York Stock Exchange LLC (‘‘NYSE’’). See Letter from Michael Friedman, General Counsel and 1,508 respondents. In addition, we Flooding. Chief Compliance Officer, Trillium, to Brent J. estimate that 25% of the 14.5 hours per Incident Period: 08/11/2016. Fields, Secretary, Securities and Exchange response (3.625 hours per response) is DATES: Effective Date: 09/21/2016 Commission, dated May 13, 2016 (‘‘Friedman carried internally by the respondent for Letter’’), and Letter from Eero Pikat to Brent J. Physical Loan Application Deadline a total annual reporting burden of 5,467 Date: 11/21/2016. Fields, Secretary, Securities and Exchange × Commission, dated, May 13, 2016 (‘‘Pikat Letter’’) hours (3.625 hours per response 1,508 Economic Injury (EIDL) Loan (together, the ‘‘Comment Letters,’’). responses). Application Deadline Date: 06/21/2017. In response to the Comment Letters, the NYSE We estimate that it takes ADDRESSES: Submit completed loan submitted a response and filed Amendment No. 2 approximately 12.4 burden hours to to the NYSE companion filing. applications to: U.S. Small Business prepare Schedule 13G and that it is filed 6 See Securities Exchange Act Release No. 34– Administration, Processing and by approximately 7,079 respondents. 77978 (June 2, 2016), 81 FR 36966. Disbursement Center, 14925 Kingsport 7 We estimate that 25% of the 12.4 hours In Amendment No. 2 the Exchange proposed Road, Fort Worth, TX 76155. that Rebroadcasting Users and Transmittal Users per response (3.1 hours per response) is would not be charged for their first two Multicast carried internally by the respondent for FOR FURTHER INFORMATION CONTACT: A. End Users and Unicast End Users, respectively, and Escobar, Office of Disaster Assistance, offers additional support for the proposal. a total annual reporting burden of Amendment No. 2 was noticed at part of the 21,945 hours (3.1 hours per response × U.S. Small Business Administration, Commission’s Order Instituting Proceedings and is 7,079 responses). 409 3rd Street, SW., Suite 6050, also available on the Commission’s Web site at Written comments are invited on: (a) Washington, DC 20416. https://www.sec.gov/comments/sr-nysemkt-2016- SUPPLEMENTARY INFORMATION: 15/nysemkt201615-2.pdf. Whether this proposed collection of Notice is 8 See Securities Exchange Act Release No. 34– information is necessary for the proper hereby given that as a result of the 78389; (July 21, 2016); 81 FR 49304. performance of the functions of the Administrator’s disaster declaration, 9 17 CFR 200.30–3(a)(12). agency, including whether the applications for disaster loans may be
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filed at the address listed above or other (Catalog of Federal Domestic Assistance (OMB), Office of Management and locally announced locations. Number 59008). Budget, Attn: Desk Officer for SSA, The following areas have been Dated: September 21, 2016. Fax: 202–395–6974, Email address: _ determined to be adversely affected by Maria Contreras-Sweet, OIRA [email protected]. the disaster: Administrator. (SSA), Social Security Administration, OLCA, Attn: Reports Clearance Primary Counties: Buffalo [FR Doc. 2016–23763 Filed 9–30–16; 8:45 am] BILLING CODE 8025–01–P Director, 3100 West High Rise, 6401 Contiguous Counties: Security Blvd., Baltimore, MD 21235, Wisconsin: Eau Claire, Pepin, Fax: 410–966–2830, Email address: Trempealeau. [email protected]. SOCIAL SECURITY ADMINISTRATION Minnesota: Wabasha, Winona. Or you may submit your comments The Interest Rates are: [Docket No: SSA–2016–0047] online through www.regulations.gov, referencing Docket ID Number [SSA– Agency Information Collection Percent 2016–0047]. Activities: Proposed Request and I. The information collections below Comment Request For Physical Damage: are pending at SSA. SSA will submit Homeowners With Credit Avail- The Social Security Administration them to OMB within 60 days from the able Elsewhere ...... 3.125 date of this notice. To be sure we Homeowners Without Credit (SSA) publishes a list of information Available Elsewhere ...... 1.563 collection packages requiring clearance consider your comments, we must Businesses With Credit Avail- by the Office of Management and receive them no later than December 2, able Elsewhere ...... 6.250 Budget (OMB) in compliance with 2016. Individuals can obtain copies of Businesses Without Credit Public Law 104–13, the Paperwork the collection instruments by writing to Available Elsewhere ...... 4.000 Reduction Act of 1995, effective October the above email address. Non-Profit Organizations With 1, 1995. This notice includes revisions 1. Statement of Agricultural Employer Credit Available Elsewhere ... 2.625 of OMB-approved information (Year Prior to 1988; and 1988 and Non-Profit Organizations With- later)—20 CFR 404.702, 404.802, out Credit Available Else- collections. where ...... 2.625 SSA is soliciting comments on the 404.1056—0960–0036. If agricultural For Economic Injury: accuracy of the agency’s burden workers believe their employers (1) did Businesses & Small Agricultural estimate; the need for the information; not report their wages, or (2) reported Cooperatives Without Credit its practical utility; ways to enhance its incorrect wage amounts, SSA will assist Available Elsewhere ...... 4.000 quality, utility, and clarity; and ways to them in resolving this issue. Non-Profit Organizations With- minimize burden on respondents, Specifically, SSA will send Forms SSA– out Credit Available Else- including the use of automated 1002–F3 or SSA–1003–F3 to the where ...... 2.625 collection techniques or other forms of agricultural employers to collect information technology. Mail, email, or evidence of wages paid. The The number assigned to this disaster fax your comments and respondents are agricultural employers for physical damage is 14869 6 and for recommendations on the information whose workers request wage verification economic injury is 14870 0. collection(s) to the OMB Desk Officer or correction for their earnings records. The States which received an EIDL and SSA Reports Clearance Officer at Type of Request: Revision of an OMB- Declaration # are Wisconsin, Minnesota. the following addresses or fax numbers. approved information collection.
Average Estimated Number of Frequency of burden per total annual Modality of completion respondents response response burden (minutes) (hours)
SSAÐ1002 ...... 7,500 1 30 3,750 SSAÐ1003 ...... 25,000 1 30 12,500
Total ...... 32,500 ...... 16,250
2. Continuing Disability Review the review for continued disability. SSA vocational rehabilitation programs (if Report—20 CFR 404.1589, 416.989— considers adults eligible for payment if any); attempts to work (if any); and the 0960–0072. Sections 221(i), they continue to be unable to do opinions of individuals regarding 1614(a)(3)(H)(ii)(I) and 1633(c)(1) of the substantial gainful activity because of whether their conditions improved. The Social Security Act (Act) requires SSA their impairments; and we consider respondents are Title II or Title XVI to periodically review the cases of Title XVI children eligible for payment disability recipients or their individuals who receive benefits under if they have marked and severe representatives. Title II or Title XVI, based on disability, functional limitations due to their to determine if disability continues. impairments. SSA also uses Form SSA– Type of Request: Revision of an OMB- SSA uses Form SSA–454, Continuing 454 to obtain information on sources of approved information collection. Disability Review Report, to complete medical treatment, participation in
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Average Estimated Number of Frequency of burden per total annual Modality of completion respondents response response burden (minutes) (hours)
SSAÐ454ÐBK (Paper version) ...... 270,500 1 60 270,500 Electronic Disability Collect System ...... 270,500 1 60 270,500
Totals ...... 541,000 ...... 541,000
3. Request for Reconsideration—20 real-time results using a web service certified public accounts (CPAs) CFR 404.907–404.921, 416.1407– application or SSA’s Business Services conduct these reviews to ensure 416.1421, 408.1009, and 418.1325— Online (BSO) application. SSA matches compliance with all the terms and 0960–0760. The Consent Based Social the information against the SSA master conditions of the party’s agreement with Security Number Verification (CBSV) file of SSNs, using SSN, name, date of SSA, including a review of the consent process is a fee-based automated Social birth, and gender code (if available). The forms. CPAs conduct the reviews at the Security number (SSN) verification requesting party retrieves the results file requesting party’s place of business to service available to private businesses from SSA, which indicates only a match ensure the integrity of the process. In and other requesting parties. To use the or no match for each SSN submitted. addition, SSA reserves the right to system, private businesses and Under the CBSV process, the perform unannounced onsite requesting parties must register with requesting party does not submit the inspections of the entire process, SSA and obtain valid consent from SSN consent forms of the number holders to including review of the technical holders prior to verification. We collect SSA. SSA requires each requesting party systems that maintain the data and the information to verify if the to retain a valid consent form for each transaction records. The respondents to submitted name and SSN match the SSN verification request. The requesting the CBSV collection are the information in SSA records. After party retains the consent forms in either participating companies; members of completing a registration process and electronic or paper format. the public who consent to the SSN paying the fee, the requesting party can SSA added a strong audit component verification; and CPAs who provide use the CBSV process to submit a file to ensure the integrity of the CBSV compliance review services. containing the names of number holders process. At the discretion of the agency, Type of Request: Revision of an OMB- who gave valid consent, along with each we require audits (called ‘‘compliance approved information collection. number holder’s accompanying SSN reviews’’) with the requesting party and date of birth (if available) to obtain paying all audit costs. Independent Time Burden
PARTICIPATING COMPANIES
Average Estimated Number of Frequency of burden per total annual Requirement respondents response response burden (minutes) (hours)
Registration process for new participating companies ...... *13 1 120 26 Creation of file with SSN holder identification data; maintaining required documentation/forms ...... 90 **251 60 22,590 Using the system to upload request file, check status, and download results file ...... 90 251 5 1,883 Storing Consent Forms ...... 90 251 60 22,590 Activities related to compliance review ...... 90 251 60 22,590
Total ...... 373 ...... 69,679 * One-time registration process/approximately 13 new participating companies per year. ** Please note there are 251 Federal business days per year on which a requesting party could submit a file.
PARTICIPATING COMPANIES WHO OPT FOR EXTERNAL TESTING ENVIRONMENT (ETE)
Average Estimated Number of Frequency of burden per total annual Requirement respondents response response burden (minutes) (hours)
ETE Registration Process (includes reviewing and completing ETE User Agreement) ...... 20 1 180 60 Web Service Transactions ...... 20 1 50 17 Reporting Issues Encountered on Web service testing (e.g., reports on ap- plication’s reliability) ...... 20 1 50 17 Reporting changes in users’ status (e.g., termination or changes in users’ employment status; changes in duties of authorized users) ...... 20 1 60 20 Cancellation of Agreement ...... 20 1 30 10 Dispute Resolution ...... 20 1 120 40
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PARTICIPATING COMPANIES WHO OPT FOR EXTERNAL TESTING ENVIRONMENT (ETE)—Continued
Average Estimated Number of Frequency of burden per total annual Requirement respondents response response burden (minutes) (hours)
Total ...... 120 ...... 164
PEOPLE WHOSE SSNS SSA WILL VERIFY
Average Estimated Number of Frequency of burden per total annual Requirement respondents response response burden (minutes) (hours)
Reading and signing authorization for SSA to release SSN verification ...... 2,800,000 1 3 140,000 Responding to CPA re-contact ...... 5,750 1 5 479
Total ...... 2,805,750 ...... 140,479
There is one CPA respondent To be sure we consider your comments, party; and (3) took the steps necessary conducting compliance reviews and we must receive them no later than to obtain the right to a hearing. SSA also preparing written reports of findings. November 2, 2016. Individuals can uses the information to determine: (1) The average burden per response is obtain copies of the OMB clearance The individual’s reason(s) for 4,800 minutes for a total burden of 7,200 packages by writing to disagreeing with SSA’s prior hours annually. [email protected]. determinations in the case; (2) if the individual has additional evidence to Cost Burden 1. Request for Hearing by submit; (3) if the individual wants an Administrative Law Judge—20 CFR The public cost burden is dependent oral hearing or a decision on the record; 404.929, 404.933, 416.1429, 404.1433, upon the number of companies and and (4) whether the individual has (or 418.1350, and 42 CFR 405.722—0960– transactions. SSA based the cost wants to appoint) a representative. The 0269. When SSA denies applicants’ or estimates below upon 90 participating respondents are Social Security benefit companies submitting a total 2.8 million beneficiaries’ requests for new or applicants and recipients who want to transactions per year. continuing benefits, the Social Security appeal SSA’s denial of their request for One-Time Per Company Registration Act entitles those applicants or new or continued benefits, and Fee—$5,000. beneficiaries to request a hearing to Medicare Part B recipients who must Estimated Per SSN Transaction Fee— appeal the decision. To request a pay the Medicare Part B Income-Related $1.40.i hearing, individuals complete Form Monthly Adjustment Amount. Estimated Per Company Cost to Store HA–501, the associated Modernized Consent Forms—$300. Claims System (MCS) or Modernized This is a correction notice: SSA II. SSA submitted the information Supplemental Security Income Claims published the incorrect burden collections below to OMB for clearance. System (MSSICS) interview, or the information for this collection at 81 FR Your comments regarding the Internet application (i501). SSA uses the 47845, on 7/22/49. We are correcting information collections would be most information to determine if the this error here. useful if OMB and SSA receive them 30 individual: (1) Filed the request within Type of Request: Revision of an OMB- days from the date of this publication. the prescribed time; (2) is the proper approved information collection.
Average burden Estimated Modality of completion Number of Frequency of per total annual respondents response response burden (minutes) (hours)
HAÐ501; Modernized Claims System (MCS); Modernized Supplemental Se- curity Income Claims System (MSSICS) ...... 10,953 1 10 1,826 I501 (Internet iAppeals) ...... 658,516 1 5 54,876
Totals ...... 669,469 ...... 56,702
2. Request for Reconsideration—20 0960–0622. Individuals use Form SSA– CFR 404.907–404.921, 416.1407– 561–U2, the associated MCS interview, 416.1421, 408.1009, and 418.1325— or the Internet application (i561) to
i The annual costs associated with the transaction total transaction cost for the year would be $1.40 changes and companies have the opportunity to to each company are dependent upon the number × 1,000,000, or $1,400,000. Periodically, SSA will cancel the agreement or continue service using the of SSN transactions SSA submits by the company calculate our costs to provide CBSV services and new transaction fee. on a yearly basis. For example, if a company adjust the fees as needed. SSA notifies companies submits 1 million requests to SSA for the year, its in writing and via Federal Register Notice of any
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initiate a request for reconsideration of (Title VIII); Medicare (Title XVIII); and This is a correction notice: SSA a denied claim. SSA uses the for initial determinations regarding published the incorrect burden information to document the request Medicare Part B income-related information for this collection at 81 FR and to determine an individual’s premium subsidy reductions. The 47845, on 7/22/49. We are correcting eligibility or entitlement to Social respondents are individuals filing for this error here. Security benefits (Title II); SSI payments reconsideration of a denied claim. Type of Request: Revision of an OMB- (Title XVI); Special Veterans Benefits approved information collection.
Average Estimated Number of Frequency of burden per total annual Modality of completion respondents response response burden (minutes) (hours)
SSAÐ561 and Modernized Claims System (MCS) ...... 330,370 1 8 40,049 I561 (Internet iAppeals) ...... 1,161,300 1 5 96,775
Totals ...... 1,491,670 ...... 136,824
3. Request for Accommodation in respondents who want to receive accommodation based on their Communication Method—0960–0777. notices from SSA through a impairment or disability. SSA collects SSA allows disabled or impaired Social communication method other than the this information electronically through Security applicants, beneficiaries, seven methods listed above must either an in-person interview or a recipients, and representative payees to explain their request to us. Those telephone interview during which the choose one of seven alternative methods respondents use Form SSA–9000 to: (1) SSA employee keys in the information of communication they want SSA to use Describe the type of accommodation on our iAccommodate Intranet screens. when we send them benefit notices and they want; (2) disclose their condition The respondents are disabled or other related communications. The necessitating the need for a different impaired Social Security applicants, seven alternative methods we offer are: type of accommodation; and (3) explain beneficiaries, recipients, and (1) Standard print notice by first-class why none of the seven methods representative payees who ask SSA to mail; (2) standard print mail with a described above are sufficient for their send notices and other communications follow-up telephone call; (3) certified needs. SSA uses Form SSA–9000 to in an alternative method besides the mail; (4) Braille; (5) Microsoft Word file determine, based on applicable law and seven modalities we currently offer. on data CD; (6) large print (18-point regulation, whether to grant the Type of Request: Revision of an OMB- font); or (7) audio CD. However, respondents’ requests for an approved information collection.
Average Estimated Number of Frequency of burden per total annual Modality of completion respondents response response burden (minutes) (hours)
SSAÐ9000/iAccommodate ...... 5,000 1 20 1,667
Dated: September 28, 2016. SSA is soliciting comments on the Or you may submit your comments Naomi R. Sipple, accuracy of the agency’s burden online through www.regulations.gov, Reports Clearance Officer, Social Security estimate; the need for the information; referencing Docket ID Number [SSA– Administration. its practical utility; ways to enhance its 2016–0049]. [FR Doc. 2016–23773 Filed 9–30–16; 8:45 am] quality, utility, and clarity; and ways to I. The information collections below BILLING CODE 4191–02–P minimize burden on respondents, are pending at SSA. SSA will submit including the use of automated them to OMB within 60 days from the collection techniques or other forms of date of this notice. To be sure we SOCIAL SECURITY ADMINISTRATION information technology. Mail, email, or consider your comments, we must fax your comments and receive them no later than December 2, [Docket No: SSA–2016–0049] recommendations on the information 2016. Individuals can obtain copies of the collection instruments by writing to collection(s) to the OMB Desk Officer Agency Information Collection the above email address. and SSA Reports Clearance Officer at Activities: Proposed Request and 1. Missing and Discrepant Wage the following addresses or fax numbers. Comment Request Reports Letter and Questionnaire—26 (OMB), Office of Management and CFR 31.6051–2—0960–0432. Each year The Social Security Administration Budget, Attn: Desk Officer for SSA, employers report the wage amounts they (SSA) publishes a list of information Fax: 202–395–6974, Email address: paid their employees to the Internal collection packages requiring clearance [email protected] Revenue Service (IRS) for tax purposes, by the Office of Management and and separately to SSA for retirement Budget (OMB) in compliance with (SSA), Social Security Administration, and disability coverage purposes. Public Law 104–13, the Paperwork OLCA, Attn: Reports Clearance Employers should report the same Reduction Act of 1995, effective October Director, 3100 West High Rise, 6401 figures to both SSA and the IRS; 1, 1995. This notice includes revisions Security Blvd., Baltimore, MD 21235, however, each year some of the and extensions of OMB-approved Fax: 410–966–2830, Email address: employer wage reports SSA receives information collections. [email protected] show wage amounts lower than those
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employers report to the IRS. SSA uses wages. Respondents are employers who Type of Request: Revision of an OMB- Forms SSA–L93–SM, SSA–L94–SM, reported lower wage amounts to SSA approved information collection. SSA–95–SM, and SSA–97–SM to ensure than they reported to the IRS. employees receive full credit for their
Total Average estimated Modality of completion Number of Frequency of burden per total annual responses response response burden (minutes) (hours)
SSAÐ95ÐSM and SSAÐ97ÐSM (and accompanying cover letters SSAÐL93, L94) ...... 360,000 1 30 180,000
2. Incorporation by Reference of Oral We call this the incorporation-by- prescribed form to request a written Findings of Fact and Rationale in reference process. In addition, the record of the decision, the involved Wholly Favorable Written Decisions regulations for this process state that if parties send SSA their contact (Bench Decision Regulation)—20 CFR the involved parties want a record of the information and reference the hearing 404.953 and 416.1453—0960–0694. If an oral decision, they may submit a written for which they would like a record. The administrative law judge (ALJ) makes a request for these records. SSA collects respondents are applicants for Disability wholly favorable oral decision, identifying information under the aegis Insurance Benefits and SSI payments, or including all the findings and rationale of Sections 20 CFR 404.953 and their representatives, to whom SSA gave for the decision for a claimant of Title 416.1453 of the Code of Federal a wholly favorable oral decision under II or Title XVI payments, at an Regulations to determine how to send the regulations cited above. administrative appeals hearing, the ALJ interested individuals written records of sends a Notice of Decision (Form HA– a favorable incorporation-by-reference Type of Request: Extension of an 82), as the records from the oral hearing oral decision made at an administrative OMB-approved information collection. preclude the need for a written decision. review hearing. Since there is no
Total Average estimated Modality of completion Number of Frequency of burden per total annual responses response response burden (minutes) (hours)
HAÐ82 ...... 2,500 1 5 208
3. Request for Waiver of Special SVB occurs, the beneficiary can request repayment. Respondents are SVB Veterans Benefits (SVB) Overpayment a waiver of recovery of the overpayment beneficiaries who have overpayments Recovery or Change in Repayment or a change in the repayment rate. SSA on their Title VIII record and wish to Rate—20 CFR 408.900–408.950—0960– uses the SSA–2032–BK to obtain the file a claim for waiver of recovery or 0698. Title VIII of the Social Security information necessary to establish change in repayment rate. Act (Act) requires SSA to pay a monthly whether the claimant meets the waiver Type of Request: Revision of an OMB- benefit to qualified World War II of recovery provisions of the approved information collection. veterans who reside outside the United overpayment, and to determine the States. When an overpayment in this repayment rate if we do not waive
Total Average estimated Number of Frequency of burden per total Modality of completion responses response response annual (minutes) burden (hours)
SSAÐ2032ÐBK ...... 450 1 120 900
II. SSA submitted the information 1. Travel Expense Reimbursement— Reimbursement procedures require the collections below to OMB for clearance. 20 CFR 404.999(d) and 416.1499— claimant to provide: (1) A list of Your comments regarding the 0960–0434. The Act provides for travel expenses incurred, and (2) receipts of information collections would be most expense reimbursement from Federal such expenses. Federal and state useful if OMB and SSA receive them 30 and State agencies for claimant travel personnel review the listings and days from the date of this publication. incidental to medical examinations, and receipts to verify the reimbursable To be sure we consider your comments, to parties, their representatives, and all amount to the requestor. The we must receive them no later than reasonably necessary witnesses for respondents are claimants for Title II November 2, 2016. Individuals can travel exceeding 75 miles to attend benefits and Title XVI payments, their obtain copies of the OMB clearance medical examinations; reconsideration representatives, and witnesses. packages by writing to interviews; and proceedings before an Type of Request: Extension of an [email protected]. administrative law judge. OMB-approved information collection.
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Average Number of Frequency of burden per Estimated Modality of completion respondents response response annual burden (minute) (hours)
404.99(d) & 416.1499 ...... 60,000 1 10 10,000
2. Disability Report—Child—20 CFR about a child’s condition from treating with medical evidence, forms the 416.912—0960–0577. Sections 223 sources or other medical sources of evidentiary basis upon which SSA (d)(5)(A) and 1631(e)(1) of the Act evidence. The State Disability makes its initial disability evaluation. require Supplemental Security Income Determination Services evaluators use The respondents are claimants seeking (SSI) claimants to furnish medical and this information from Form SSA–3820 SSI childhood disability payments. other evidence to prove they are to develop medical and school Type of Request: Revision of an OMB- disabled. SSA uses Form SSA–3820 to evidence, and to assess the alleged collect various types of information disability. This information, together approved information collection.
Average Number of Frequency of burden per Estimated total Modality of completion respondents response response annual burden (minutes) (hours)
SSAÐ3820 (Paper Form) ...... 279,002 1 90 418,503 Electronic Disability Collection System ...... 1,000 1 120 2,000 i3820 (Internet) ...... 119,464 1 120 238,928
Totals ...... 399,466 ...... 659,431
Dated: September 28, 2016. Museum of Modern Art, San Francisco, verified notice of exemption under 49 Naomi R. Sipple, California, from on or about March 11, CFR pt. 1152 subpart F—Exempt Reports Clearance Officer, Social Security 2017, until on or about May 29, 2017, Abandonments and Discontinuances of Administration. and at possible additional exhibitions or Service to discontinue service over an [FR Doc. 2016–23774 Filed 9–30–16; 8:45 am] venues yet to be determined, is in the approximately 5.3-mile rail line from BILLING CODE 4191–02–P national interest. I have ordered that milepost 756.8 in Lowell, to milepost Public Notice of these Determinations 762.1 in Zuber, in Marion County, Fla. be published in the Federal Register. (the Line).2 The Line traverses U.S. DEPARTMENT OF STATE FOR FURTHER INFORMATION CONTACT: For Postal Service Zip Codes 34482, 32686, further information, including a list of and 34475. [Public Notice: 9744] the imported objects, contact the Office Florida Northern has certified that: (1) No local traffic has moved over the Line Culturally Significant Objects Imported of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. for at least two years; (2) there is no for Exhibition Determinations: overhead traffic to be rerouted over ‘‘Matisse/Diebenkorn’’ Exhibition Department of State (telephone: 202– 632–6471; email: section2459@ other lines; (3) no formal complaint SUMMARY: Notice is hereby given of the state.gov). The mailing address is U.S. filed by a user of rail service on the Line following determinations: Pursuant to Department of State, L/PD, SA–5, Suite (or by a state or local government entity the authority vested in me by the Act of 5H03, Washington, DC 20522–0505. acting on behalf of such user) regarding October 19, 1965 (79 Stat. 985; 22 U.S.C. cessation of service over the Line is 2459), E.O. 12047 of March 27, 1978, the Dated: September 27, 2016. pending either with the Surface Foreign Affairs Reform and Mark Taplin, Transportation Board (Board) or with Restructuring Act of 1998 (112 Stat. Principal Deputy Assistant Secretary, Bureau any U.S. District Court or has been 2681, et seq.; 22 U.S.C. 6501 note, et of Educational and Cultural Affairs, decided in favor of the complainant seq.), Delegation of Authority No. 234 of Department of State. within the two-year period; and (4) the October 1, 1999, Delegation of Authority [FR Doc. 2016–23976 Filed 9–30–16; 8:45 am] requirements at 49 CFR 1105.12 No. 236–3 of August 28, 2000 (and, as BILLING CODE 4710–05–P (newspaper publication) and 49 CFR appropriate, Delegation of Authority No. 1152.50(d)(1) (notice to governmental 257 of April 15, 2003), I hereby agencies) have been met. determine that the objects to be SURFACE TRANSPORTATION BOARD As a condition to this exemption, any employee adversely affected by the included in the exhibition ‘‘Matisse/ [Docket No. AB 507 (Sub-No. 2X)] Diebenkorn,’’ imported from abroad for discontinuance of service shall be temporary exhibition within the United Florida Northern Railroad Company, protected under Oregon Short Line States, are of cultural significance. The Inc.—Discontinuance of Service objects are imported pursuant to loan Pinsly R.R.—Continuance in Control Exemption— Exemption—in Marion County, Fla. Fla. N. R.R., FD 31369 (ICC served Dec. 21, 1988). agreements with the foreign owners or 2 According to Florida Northern, it operates custodians. I also determine that the Florida Northern Railroad Company, 1 ‘‘approximately 88 miles of rail line’’ and exhibition or display of the exhibit Inc. (Florida Northern) has filed a ‘‘commenced operations in 1988 after acquiring two objects at The Baltimore Museum of Art, lines (including a portion of the line over which 1 Florida Northern is a wholly owned subsidiary service is to be discontinued).’’ (Notice of Baltimore, Maryland, from on or about of Pinsly Railroad Company, a noncarrier holding Exemption 2); see also Fla. N. R.R.—Acquis. & October 23, 2016, until on or about company, which also controls three other Class III Operation Exemption—Certain Rail Lines of CSX January 29, 2017, at the San Francisco rail carriers in Florida and Massachusetts. See Transp., Inc., FD 31368 (ICC served Dec. 21, 1988).
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Railroad—Abandonment Portion certain water resources projects; and Groundwater withdrawal of up to 0.180 Goshen Branch Between Firth & took additional actions, as set forth in mgd (30-day average) from Well 3. Ammon, in Bingham & Bonneville the Supplementary Information below. 2. Project Sponsor and Facility: Cabot Counties, Idaho, 360 I.C.C. 91 (1979). To DATES: The business meeting was held Oil & Gas Corporation (Susquehanna address whether this condition on September 8, 2016. Please refer to the River), Great Bend Township, adequately protects affected employees, notice published in 81 FR 64812, Susquehanna County, Pa. Renewal of a petition for partial revocation under September 21, 2016, for additional surface water withdrawal of up to 2.000 49 U.S.C. 10502(d) must be filed. information on the proposed mgd (peak day) (Docket No. 20120904). Provided no formal expression of rulemaking, including public hearing 3. Project Sponsor and Facility: intent to file an offer of financial dates and locations. Comments on the Elizabethtown Area Water Authority, assistance (OFA) to subsidize continued proposed consumptive use mitigation Elizabethtown Borough, Lancaster rail service has been received, this policy may be submitted to the County, Pa. Groundwater withdrawal of exemption will be effective on Commission on or before January 6, up to 0.201 mgd (30-day average) from November 2, 2016, unless stayed 2017. Well 1. 4. Project Sponsor and Facility: pending reconsideration. Petitions to ADDRESSES: Comments may be mailed stay that do not involve environmental Elizabethtown Area Water Authority, to: Jason E. Oyler, Esq., General Mount Joy Township, Lancaster County, issues and formal expressions of intent Counsel, Susquehanna River Basin Pa. Groundwater withdrawal of up to to file an OFA to subsidize continued Commission, 4423 N. Front Street, 3 0.106 mgd (30-day average) from Well 3. rail service under 49 CFR 1152.27(c)(2) Harrisburg, PA 17110–1788, or must be filed by October 13, 2016.4 5. Project Sponsor and Facility: submitted electronically at http:// Elizabethtown Area Water Authority, Petitions to reopen must be filed by www.srbc.net/pubinfo/ October 21, 2016, with the Surface Elizabethtown Borough, Lancaster publicparticipation/ County, Pa. Groundwater withdrawal of Transportation Board, 395 E Street SW., PublicComments.aspx?type=5&cat=20. Washington, DC 20423–0001. up to 0.130 mgd (30-day average) from A copy of any petition filed with the FOR FURTHER INFORMATION CONTACT: Well 4. Board should be sent to Florida Jason E. Oyler, General Counsel, 6. Project Sponsor and Facility: Northern’s representative: Audrey L. telephone: (717) 238–0423, ext. 1312; Elizabethtown Area Water Authority, Brodrick, Fletcher & Sippel LLC, 29 fax: (717) 238–2436; email: joyler@ Mount Joy Township, Lancaster County, North Wacker Drive, Suite 920, Chicago, srbc.net. Regular mail inquiries may be Pa. Groundwater withdrawal of up to IL 60606. sent to the above address. See also 0.187 mgd (30-day average) from Well 8. If the verified notice contains false or Commission Web site at www.srbc.net. 7. Project Sponsor and Facility: misleading information, the exemption SUPPLEMENTARY INFORMATION: In Elizabethtown Area Water Authority, is void ab initio. addition to the actions taken on projects Mount Joy Township, Lancaster County, Board decisions and notices are identified in the summary above and the Pa. Groundwater withdrawal of up to available on our Web site at listings below, the following items were 0.216 mgd (30-day average) from Well 9. ‘‘WWW.STB.GOV.’’ also presented or acted upon at the 8. Project Sponsor and Facility: Geisinger Health System, Mahoning Decided: September 27, 2016. business meeting: (1) rescission of the Commission’s Information Technology Township, Montour County, Pa. By the Board, Rachel D. Campbell, Modification to increase consumptive Director, Office of Proceedings. Services Fee; (2) approval/ratification of a contract and several grants; (3) release water use by an additional 0.319 mgd Tia Delano, of proposed rulemaking to clarify (peak day), for a total consumptive Clearance Clerk. application requirements and standards water use of up to 0.499 mgd (peak day) [FR Doc. 2016–23727 Filed 9–30–16; 8:45 am] for review of projects, amend the rules (Docket No. 19910103). BILLING CODE 4915–01–P dealing with the mitigation of 9. Project Sponsor: Pennsylvania consumptive uses, add a subpart to American Water Company. Project provide for registration of grandfathered Facility: Nittany Water System, Walker SUSQUEHANNA RIVER BASIN projects, and revise requirements Township, Centre County, Pa. COMMISSION dealing with hearings and enforcement Groundwater withdrawal of up to 0.262 actions, and release of a consumptive mgd (30-day average) from Nittany Well Actions Taken at September 8, 2016, use mitigation policy; (4) a report on 1. Meeting delegated settlements with the following 10. Project Sponsor and Facility: project sponsors, pursuant to SRBC Republic Services of Pennsylvania, LLC, AGENCY: Susquehanna River Basin Resolution 2014–15: Lackawanna Windsor and Lower Windsor Commission. Energy Center, in the amount of $2,000; Townships, York County, Pa. Renewal ACTION: Notice. and Troy Borough Municipal Authority, of groundwater withdrawal of up to 0.350 mgd (30-day average) from SUMMARY: As part of its regular business in the amount of $5,000.; 5) approval to meeting held on September 8, 2016, in extend the term of an emergency groundwater remediation wells (Docket Cooperstown, New York, the certificate with Furman Foods, Inc. to No. 19860903). 11. Project Sponsor and Facility: SWN Commission took the following actions: November 30, 2016; and 6) continuance Production Company, LLC, Herrick approved or tabled the applications of of the Show Cause proceeding granted to Montage Mountain Resorts, LP, to the Township, Bradford County, Pa. Groundwater withdrawal of up to 0.101 3 Each OFA must be accompanied by the filing December 2016 Commission meeting. fee, which is currently set at $1,600. See 49 CFR mgd (30-day average) from the Fields 1002.2(f)(25). Project Applications Approved Supply Well. 4 Because this is a discontinue proceeding and The Commission approved the 12. Project Sponsor and Facility: not an abandonment, interim trail use/rail banking following project applications: Talisman Energy USA Inc. and public use conditions are not appropriate. (Susquehanna River), Sheshequin Because there will be an environmental review 1. Project Sponsor and Facility: during abandonment, this discontinuance does not Bloomfield Borough Water Authority, Township, Bradford County, Pa. require an environmental review. Centre Township, Perry County, Pa. Renewal of surface water withdrawal of
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up to 1.500 mgd (peak day) (Docket No. Wyoming County, Pa. Surface water Company, LLC. Project: Atlantic Sunrise 20120912). withdrawal of up to 2.592 mgd (peak (Susquehanna River-2), Montour 13. Project Sponsor and Facility: day). Township, Columbia County, Pa. Transcontinental Gas Pipe Line 23. Project Sponsor and Facility: Application for consumptive water use Company, LLC. Project: Atlantic Sunrise Transcontinental Gas Pipe Line of up to 0.100 mgd (peak day). (Chiques Creek), West Hempfield Company, LLC. Project: Atlantic Sunrise 7. Project Sponsor and Facility: Township, Lancaster County, Pa. (Susquehanna River), Eaton Township, Village of Windsor, Broome County, Surface water withdrawal of up to 2.880 Wyoming County, Pa. Consumptive N.Y. Application for groundwater mgd (peak day). water use of up to 0.100 mgd (peak day). withdrawal of up to 0.380 mgd (30-day 14. Project Sponsor and Facility: 24. Project Sponsor and Facility: average) from Well 2. Transcontinental Gas Pipe Line Transcontinental Gas Pipe Line 8. Project Sponsor and Facility: West Company, LLC. Project: Atlantic Sunrise Company, LLC. Project: Atlantic Sunrise Manchester Township Authority, West (Conestoga River-1), Conestoga (Susquehanna River-1), Montour Manchester Township, York County, Pa. Township, Lancaster County, Pa. Township and Catawissa Borough, Application for groundwater Surface water withdrawal of up to 0.360 Columbia County, Pa. Surface water withdrawal of up to 0.216 mgd (30-day mgd (peak day). withdrawal of up to 0.360 mgd (peak average) from Well 7. 15. Project Sponsor and Facility: day). Transcontinental Gas Pipe Line 25. Project Sponsor and Facility: Project Application Withdrawn by Company, LLC. Project: Atlantic Sunrise Transcontinental Gas Pipe Line Project Sponsor (Conestoga River-1), Conestoga Company, LLC. Project: Atlantic Sunrise The following project sponsor Township, Lancaster County, Pa. (Susquehanna River-1), Montour withdrew its project application: Consumptive water use of up to 0.100 Township and Catawissa Borough, 1. Project Sponsor and Facility: mgd (peak day). Columbia County, Pa. Consumptive Transcontinental Gas Pipe Line 16. Project Sponsor and Facility: water use of up to 0.100 mgd (peak day). Company, LLC. Project: Atlantic Sunrise Transcontinental Gas Pipe Line 26. Project Sponsor and Facility: (Little Fishing Creek), Mount Pleasant Company, LLC. Project: Atlantic Sunrise Transcontinental Gas Pipe Line Township, Columbia County, Pa. (Conestoga River-2), Conestoga Company, LLC. Project: Atlantic Sunrise Application for surface water Township, Lancaster County, Pa. (Swatara Creek), East Hanover withdrawal of up to 2.880 mgd (peak Surface water withdrawal of up to 0.360 Township, Lebanon County, Pa. Surface day). mgd (peak day). water withdrawal of up to 2.880 mgd 17. Project Sponsor and Facility: Authority: Pub.L. 91–575, 84 Stat. 1509 et (peak day). seq., 18 CFR parts 806, 807, and 808. Transcontinental Gas Pipe Line Company, LLC. Project: Atlantic Sunrise Project Applications Tabled Dated: September 27, 2016. (Conestoga River-2), Conestoga The Commission tabled action on the Stephanie L. Richardson, Township, Lancaster County, Pa. following project applications: Secretary to the Commission. Consumptive water use of up to 0.100 1. Project Sponsor: Exelon Generation [FR Doc. 2016–23737 Filed 9–30–16; 8:45 am] mgd (peak day). Company, LLC. Project Facility: Muddy BILLING CODE 7040–01–P 18. Project Sponsor and Facility: Run Pumped Storage Project, Drumore Transcontinental Gas Pipe Line and Martic Townships, Lancaster Company, LLC. Project: Atlantic Sunrise County, Pa. Application for an existing DEPARTMENT OF TRANSPORTATION (Deep Creek), Hegins Township, hydroelectric facility. Schuylkill County, Pa. Surface water 2. Project Sponsor and Facility: Federal Highway Administration withdrawal of up to 2.880 mgd (peak Gilberton Power Company, West day). Mahanoy Township, Schuylkill County, Revise Notice of Intent for an 19. Project Sponsor and Facility: Pa. Application for renewal of Environmental Impact Statement: Transcontinental Gas Pipe Line consumptive water use of up to 1.510 North-South Corridor Study: Interstate Company, LLC. Project: Atlantic Sunrise mgd (peak day) (Docket No. 19851202). 10 to U.S. Highway 60, Pinal County, (Fishing Creek), Sugarloaf Township, 3. Project Sponsor and Facility: Arizona Columbia County, Pa. Surface water Gilberton Power Company, West withdrawal of up to 2.592 mgd (peak Mahanoy Township, Schuylkill County, AGENCY: Federal Highway day). Pa. Application for groundwater Administration (FHWA), United States 20. Project Sponsor and Facility: withdrawal of up to 1.870 mgd (30-day Department of Transportation (USDOT). Transcontinental Gas Pipe Line average) from the Gilberton Mine Pool. ACTION: Revised Notice of Intent (NOI). Company, LLC. Project: Atlantic Sunrise 4. Project Sponsor and Facility: (Pequea Creek), Martic Township, Manbel Devco I, LP, Manheim SUMMARY: A NOI to prepare an Lancaster County, Pa. Surface water Township, Lancaster County, Pa. Environmental Impact Statement (EIS) withdrawal of up to 2.880 mgd (peak Application for groundwater was published in the Federal Register day). withdrawal of up to 4.320 mgd (30-day on September 20, 2010. The FHWA is 21. Project Sponsor and Facility: average) from the Belmont Quarry. issuing this notice to advise the public Transcontinental Gas Pipe Line 5. Project Sponsor and Facility: of a change to the environmental review Company, LLC. Project: Atlantic Sunrise Transcontinental Gas Pipe Line process for the proposed North-South (Roaring Creek), Franklin Township, Company, LLC. Project: Atlantic Sunrise Corridor. The FHWA and the project Columbia County, Pa. Surface water (Susquehanna River-2), Montour sponsor, the Arizona Department of withdrawal of up to 2.880 mgd (peak Township, Columbia County, Pa. Transportation (ADOT), intend to use a day). Application for surface water tiered process in which a Tier 1 EIS will 22. Project Sponsor and Facility: withdrawal of up to 2.880 mgd (peak be prepared to evaluate potential Transcontinental Gas Pipe Line day). corridor alternatives, along with a No- Company, LLC. Project: Atlantic Sunrise 6. Project Sponsor and Facility: Action alternative, for a future project- (Susquehanna River), Eaton Township, Transcontinental Gas Pipe Line specific alignment.
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The proposed tiering approach will the issuance of the original NOI. The Issued on: September 27, 2016. allow FHWA and ADOT to evaluate a FHWA intends to issue a single Final Karla S. Petty, range of potential corridors within the Tier 1 EIS and Record of Decision Arizona Division Administrator, Federal North-South Corridor Study (NSCS) area document pursuant to Fixing America’s Highway Administration. boundaries and to broadly evaluate Surface Transportation Act Section 1311 [FR Doc. 2016–23784 Filed 9–30–16; 8:45 am] social, economic, and environmental requirements, unless FHWA determines BILLING CODE 4910–22–P impacts and mitigation approaches in statutory criteria or practicability the Tier 1 EIS. In addition, the NSCS considerations preclude issuance of a area will be expanded to include an combined document. DEPARTMENT OF TRANSPORTATION adjacent State Route 24 (SR 24) corridor Stakeholder and Public Involvement: study resulting in an updated study area Stakeholder and public outreach will Federal Motor Carrier Safety encompassing the original study area continue throughout this Tier 1 EIS Administration process to provide opportunities for between Interstate 10 (I–10) and U.S. [Docket No. FMCSA–2016–0003] Highway 60 (U.S. 60) and adding the agency and public input on the study. extension of SR 24 from Ironwood Drive A public hearing will be held upon Qualification of Drivers; Exemption to the North-South Corridor in Pinal release of the Tier 1 Draft EIS for public Applications; Hearing County, Arizona. and agency review. The Tier 1 analysis will utilize Alternatives: Corridor alternatives AGENCY: Federal Motor Carrier Safety technical data obtained thus far in the with widths appropriate for the Administration (FMCSA), DOT. environmental review process and evaluation of the full range of potential ACTION: Notice of applications for collect other information as required. If impacts will be developed within the exemption; request for comments. the Record of Decision identifies an updated study area. The Tier 1 EIS will SUMMARY: FMCSA announces receipt of Action (Build) corridor alternative, evaluate a reasonable range of ‘‘Action’’ applications from 26 individuals for an subsequent projects will complete a Tier corridor alternatives and the ‘‘No exemption from the hearing requirement 2 National Environmental Policy Act Action’’ alternative. in the Federal Motor Carrier Safety (NEPA) review where the agencies will Environmental Review Process: The Regulations (FMCSRs) to operate evaluate project-level, site-specific Tier 1 EIS will be developed in commercial motor vehicles (CMV) in impacts, and required mitigation and accordance with Council on interstate commerce. Granting these commitments. Environmental Quality (CEQ) regulations (40 Code of Federal exemptions would enable these hard of FOR FURTHER INFORMATION CONTACT: Regulations [CFR] part 1500 et seq.) hearing and deaf individuals to operate Aryan Lirange, Senior Urban Engineer, implementing NEPA (42 U.S.C. 4321 et CMVs in interstate commerce. Federal Highway Administration, 4000 seq.), and FHWA regulations. The DATES: Comments must be received on N. Central Avenue, Suite 1500, Phoenix, FHWA and ADOT will use a tiered or before November 2, 2016. AZ 85012, Telephone: (602) 382–8973, process, as provided for in 40 CFR ADDRESSES: You may submit comments Email: [email protected]. 1508.28 and in accordance with FHWA bearing the Federal Docket Management SUPPLEMENTARY INFORMATION: On guidance, in the completion of the System (FDMS) Docket No. FMCSA– September 20, 2010, at 75 FR 57327, environmental study. 2016–0003 using any of the following FHWA, in cooperation with ADOT, If the Record of Decision indicates methods: issued an NOI to prepare an EIS on a that FHWA has selected one of the • Federal eRulemaking Portal: Go to proposed 40-mile-long project along a corridor alternatives as the http://www.regulations.gov. Follow the new route located between U.S. 60 on environmentally preferred alternative, online instructions for submitting the north and I–10 on the south, in Pinal the evaluation of a specific highway comments. County, Arizona. The project is alignment within the selected corridor • Mail: Docket Management Facility; considered necessary to achieve a would occur in a subsequent phase of U.S. Department of Transportation, 1200 transportation objective identified in the study. Subsequent Tier 2 New Jersey Avenue SE., West Building Pinal County’s 2008 Regionally assessment(s) would address a proposed Ground Floor, Room W12–140, Significant Routes for Safety and highway alignment to be developed Washington, DC 20590–0001. Mobility. The Study would address within the corridor alternative selected • Hand Delivery: West Building current and future transportation needs in the Tier 1 EIS, and would incorporate Ground Floor, Room W12–140, 1200 in an area that currently exceeds by reference the Tier 1 data, evaluations, New Jersey Avenue SE., Washington, existing road capacity and is expected to and findings. The Tier 2 NEPA DC, between 9 a.m. and 5 p.m., Monday continue to worsen with the projected evaluation(s) would concentrate on site- through Friday, except Federal increase in traffic demand associated specific issues and alternatives relevant Holidays. with regional growth. The project scope to implementing a new highway • Fax: 1–202–493–2251. also incorporates the extension of SR 24 alignment within the selected Tier 1 Instructions: Each submission must from Ironwood Drive to the NSCS alternative corridor, and would identify include the Agency name and the boundary. Information and documents the environmental consequences and docket number(s) for this notice. Note regarding the environmental review measures necessary to mitigate that all comments received will be process will be made available for the environmental impacts at a site-specific posted without change to http:// duration of the Tier 1 EIS process on the level of detail. www.regulations.gov, including any following Web site: https:// (Catalog of Federal Domestic Assistance personal information provided. Please www.azdot.gov/projects/south-central/ Program Number 20.205, Highway Research, see the Privacy Act heading below for north-south-corridor-study. Planning and Construction. The regulations further information. The Tier 1 EIS will use all existing implementing Executive Order 12372 Docket: For access to the docket to data including the NSCS Alternatives regarding intergovernmental consultation on read background documents or Selection Report completed in October Federal programs and activities apply to this comments, go to http:// 2014 and engineering, environmental, program.) www.regulations.gov at any time or and socioeconomic data collected since Authority: 23 U.S.C. 315; U.S.C. 771.123. Room W12–140 on the ground level of
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the West Building, 1200 New Jersey have an average hearing loss in the better ear Joshua Gelona Avenue SE., Washington, DC, between 9 greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid Mr. Gelona, age 25, holds an a.m. and 5 p.m., Monday through operator’s license in Oklahoma. Friday, except Federal holidays. The when the audiometric device is calibrated to American National Standard (formerly ASA William D. Gum FDMS is available 24 hours each day, Standard) Z24.5–1951. 365 days each year. If you want Mr. Gum, age 76, holds an operator’s acknowledgment that we received your This standard was adopted in 1970 license in Texas. comments, please include a self- and was revised in 1971 to allow drivers addressed, stamped envelope or to be qualified under this standard Reginald C. Holmes postcard or print the acknowledgement while wearing a hearing aid, 35 FR Mr. Holmes, age 31, holds an page that appears after submitting 6458, 6463 (April 22, 1970) and 36 FR operator’s license in Arizona. 12857 (July 3, 1971). comments online. Gary D. McBride Privacy Act: In accordance with 5 On February 1, 2013, FMCSA U.S.C. 553(c), DOT solicits comments announced in a Notice of Final Mr. McBride, age 50, holds an from the public to better inform its Disposition titled, Qualification of operator’s license in Florida. rulemaking process. DOT posts these Drivers; Application for Exemptions; Brent D. McCaffery comments, without edit, including any National Association of the Deaf, (78 FR personal information the commenter Mr. McCaffery, age 29, holds an 7479), its decision to grant requests from operator’s license in Iowa. provides, to http://www.regulations.gov 40 individuals for exemptions from the as described in the system of records Agency’s physical qualification Benjoel C. Morton notice (DOT/ALL–14 FDMS), which can standard concerning hearing for Mr. Morton, age 35, holds an be reviewed at http://www.dot.gov/ interstate CMV drivers. Subsequent to operator’s license in Georgia. privacy. the publication February 1, 2013 of the Anthony S. Papa FOR FURTHER INFORMATION CONTACT: Ms. notice, the Agency has published Christine A. Hydock, Chief, Medical additional notices granting requests Mr. Papa, age 51, holds an operator’s Programs Division, (202) 366–4001, from hard of hearing and deaf license in Ohio. individuals for exemptions from the [email protected], FMCSA, Eduardo Pedregal Department of Transportation, 1200 Agency’s physical qualification New Jersey Avenue SE., Room W64– standard concerning hearing for Mr. Pedregal, age 27, holds an 224, Washington, DC 20590–0001. interstate CMV drivers. operator’s license in Texas. Office hours are 8:30 a.m. to 5 p.m., e.t., II. Qualifications of Applicants Charles L. Pitt Monday through Friday, except Federal Mr. Pitt, age 52, holds an operator’s holidays. If you have questions Kay Baden license in Alabama. regarding viewing or submitting Ms. Baden, age 59, holds a class A material to the docket, contact Docket CDL in Oregon. David Y. Pro Services, telephone (202) 366–9826. Mr. Pro, age 55, holds an operator’s SUPPLEMENTARY INFORMATION: Wyatt M. Baldwin license in California. I. Background Mr. Baldwin, age 31, holds an Leonardo Pupo-Tuperet operator’s license in Nevada. Under 49 U.S.C. 31136(e) and 31315, Mr. Pupo-Tuperet, age 26, holds an FMCSA may grant an exemption from Moises Becerra operator’s license in Washington. the FMCSRs for a two-year period if it Mr. Becerra, age 26, holds an finds ‘‘such exemption would likely Edgar J. Ramos operator’s license in Texas. achieve a level of safety that is Mr. Ramos, age 52, holds an equivalent to or greater than the level Matthew R. Burgoyne operator’s license in Illinois. that would be achieved absent such Ronald D. Rumsey exemption.’’ The statute also allows the Mr. Burgoyne, age 29, holds a class A Agency to renew exemptions at the end CDL in Minnesota. Mr. Rumsey, age 53, holds an of the two-year period. Pedro H. Calas operator’s license in Iowa. The 26 individuals listed in this Johnny Seng notice have requested an exemption Mr. Calas, age 30, holds a class A CDL from the hearing requirement in 49 CFR in Florida. Mr. Seng, age 22, holds an operator’s license in Rhode Island. 391.41(b)(11), which applies to drivers David T. Carlson who operate CMVs in interstate Michael J. Sladick commerce. Accordingly, the Agency Mr. Carlson, age 76, holds a class A Mr. Sladick, age 48, holds an will evaluate the qualifications of each CDL in Wisconsin. operator’s license in Ohio. applicant to determine whether granting Marco A. Cisneros the exemption will achieve the required Brian J. Walthall Mr. Cisneros, age 26, holds an level of safety mandated by statute. Mr. Walthall, age 49, holds an operator’s license in California. The physical qualification standard operator’s license in Kansas. for drivers regarding hearing found in Mark B. Cole 49 CFR 391.41(b)(11) states that a Jack Whitewater person is physically qualified to drive a Mr. Cole, age 40, holds an operator’s Mr. Whitewater, age 38, holds an CMV if that person: license in California. operator’s license in Florida. First perceives a forced whispered voice in Filipe S. Fernandez III. Request for Comments the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested Mr. Fernandez, age 49 holds an In accordance with 49 U.S.C. 31136(e) by use of an audiometric device, does not operator’s license in Florida. and 31315, FMCSA requests public
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comment from all interested persons on DEPARTMENT OF TRANSPORTATION provides, to www.regulations.gov, as the exemption petitions described in described in the system of records this notice. We will consider all Federal Motor Carrier Safety notice (DOT/ALL–14 FDMS), which can comments received before the close of Administration be reviewed at www.dot.gov/privacy. business on the closing date indicated [Docket No. FMCSA–2016–0031] II. Background in the dates section of the notice. Qualification of Drivers; Exemption On August 8, 2016, FMCSA published IV. Submitting Comments Applications; Vision a notice of receipt of exemption applications from certain individuals, You may submit your comments and AGENCY: Federal Motor Carrier Safety and requested comments from the material online or by fax, mail, or hand Administration (FMCSA), DOT. public (81 FR 52514). That notice listed delivery, but please use only one of ACTION: Notice of final disposition. 11 applicants’ case histories. The 11 these means. FMCSA recommends that individuals applied for exemptions from you include your name and a mailing SUMMARY: FMCSA announces its the vision requirement in 49 CFR address, an email address, or a phone decision to exempt 11 individuals from 391.41(b)(10), for drivers who operate number in the body of your document the vision requirement in the Federal CMVs in interstate commerce. so that FMCSA can contact you if there Motor Carrier Safety Regulations Under 49 U.S.C. 31136(e) and 31315, are questions regarding your (FMCSRs). They are unable to meet the FMCSA may grant an exemption for a submission. vision requirement in one eye for 2-year period if it finds ‘‘such various reasons. The exemptions will exemption would likely achieve a level To submit your comment online, go to enable these individuals to operate of safety that is equivalent to or greater http://www.regulations.gov and in the commercial motor vehicles (CMVs) in than the level that would be achieved search box insert the docket number interstate commerce without meeting absent such exemption.’’ The statute FMCSA–2016–0003 and click the search the prescribed vision requirement in also allows the Agency to renew button. When the new screen appears, one eye. The Agency has concluded that exemptions at the end of the 2-year click on the blue ‘‘Comment Now!’’ granting these exemptions will provide period. Accordingly, FMCSA has button on the right hand side of the a level of safety that is equivalent to or evaluated the 11 applications on their page. On the new page, enter greater than the level of safety merits and made a determination to information required including the maintained without the exemptions for grant exemptions to each of them. specific section of this document to these CMV drivers. III. Vision and Driving Experience of which each comment applies, and DATES: The exemptions were granted the Applicants provide a reason for each suggestion or September 8, 2016. The exemptions The vision requirement in the recommendation. If you submit your expire on September 8, 2018. FMCSRs provides: comments by mail or hand delivery, FOR FURTHER INFORMATION CONTACT: Ms. submit them in an unbound format, no A person is physically qualified to Christine A. Hydock, Chief, Medical drive a commercial motor vehicle if that larger than 81⁄2 by 11 inches, suitable for Programs Division, (202) 366–4001, person has distant visual acuity of at copying and electronic filing. If you [email protected], FMCSA, least 20/40 (Snellen) in each eye submit comments by mail and would Department of Transportation, 1200 without corrective lenses or visual like to know that they reached the New Jersey Avenue SE., Room W64– acuity separately corrected to 20/40 facility, please enclose a stamped, self- 113, Washington, DC 20590–0001. (Snellen) or better with corrective addressed postcard or envelope. Office hours are 8:30 a.m. to 5 p.m., e.t., lenses, distant binocular acuity of a least We will consider all comments and Monday through Friday, except Federal 20/40 (Snellen) in both eyes with or material received during the comment holidays. If you have questions without corrective lenses, field of vision period. FMCSA may issue a final regarding viewing or submitting of at least 70° in the horizontal meridian determination any time after the close of material to the docket, contact Docket in each eye, and the ability to recognize the comment period. Services, telephone (202) 366–9826. the colors of traffic signals and devices SUPPLEMENTARY INFORMATION: showing red, green, and amber (49 CFR V. Viewing Comments and Documents I. Electronic Access 391.41(b)(10)). FMCSA recognizes that some drivers To view comments, as well as any You may see all the comments online do not meet the vision requirement but documents mentioned in this preamble, through the Federal Document have adapted their driving to go to http://www.regulations.gov and in Management System (FDMS) at http:// accommodate their limitation and the search box insert the docket number www.regulations.gov. demonstrated their ability to drive FMCSA–2016–0003 and click ‘‘Search.’’ Docket: For access to the docket to safely. The 11 exemption applicants Next, click ‘‘Open Docket Folder’’ and read background documents or listed in this notice are in this category. you will find all documents and comments, go to http:// They are unable to meet the vision comments related to this notice. www.regulations.gov and/or Room requirement in one eye for various Issued on: September 21, 2016. W12–140 on the ground level of the reasons, including amblyopia, Coat’s Larry W. Minor, West Building, 1200 New Jersey Avenue retinopathy, corneal scar, exotropia, and SE., Washington, DC, between 9 a.m. refractive amblyopia. In most cases, Associate Administrator for Policy. and 5 p.m., Monday through Friday, their eye conditions were not recently [FR Doc. 2016–23790 Filed 9–30–16; 8:45 am] except Federal holidays. developed. All of the applicants were BILLING CODE 4910–EX–P Privacy Act: In accordance with 5 either born with their vision U.S.C. 553(c), DOT solicits comments impairments or have had them since from the public to better inform its childhood. rulemaking process. DOT posts these Although each applicant has one eye comments, without edit, including any which does not meet the vision personal information the commenter requirement in 49 CFR 391.41(b)(10),
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each has at least 20/40 corrected vision several research studies designed to vision impairment, demonstrating the in the other eye, and in a doctor’s correlate past and future driving likelihood that they have adapted their opinion, has sufficient vision to perform performance. Results of these studies driving skills to accommodate their all the tasks necessary to operate a CMV. support the principle that the best condition. As the applicants’ ample Doctors’ opinions are supported by the predictor of future performance by a driving histories with their vision applicants’ possession of valid driver is his/her past record of crashes deficiencies are good predictors of commercial driver’s licenses (CDLs) or and traffic violations. Copies of the future performance, FMCSA concludes non-CDLs to operate CMVs. Before studies may be found at Docket Number their ability to drive safely can be issuing CDLs, States subject drivers to FMCSA–1998–3637. projected into the future. knowledge and skills tests designed to FMCSA believes it can properly apply We believe that the applicants’ evaluate their qualifications to operate a the principle to monocular drivers, intrastate driving experience and history CMV. because data from the Federal Highway provide an adequate basis for predicting All of these applicants satisfied the Administration’s (FHWA) former waiver their ability to drive safely in interstate testing requirements for their State of study program clearly demonstrate the commerce. Intrastate driving, like residence. By meeting State licensing driving performance of experienced interstate operations, involves requirements, the applicants monocular drivers in the program is substantial driving on highways on the demonstrated their ability to operate a better than that of all CMV drivers interstate system and on other roads CMV, with their limited vision, to the collectively (See 61 FR 13338, 13345, built to interstate standards. Moreover, satisfaction of the State. March 26, 1996). The fact that driving in congested urban areas While possessing a valid CDL or non- experienced monocular drivers exposes the driver to more pedestrian CDL, these 11 drivers have been demonstrated safe driving records in the and vehicular traffic than exists on authorized to drive a CMV in intrastate waiver program supports a conclusion interstate highways. Faster reaction to commerce, even though their vision that other monocular drivers, meeting traffic and traffic signals is generally disqualified them from driving in the same qualifying conditions as those required because distances between interstate commerce. They have driven required by the waiver program, are also them are more compact. These CMVs with their limited vision in likely to have adapted to their vision conditions tax visual capacity and careers ranging for 3 to 34 years. In the deficiency and will continue to operate driver response just as intensely as past three years, two drivers were safely. interstate driving conditions. The involved in crashes and no drivers were The first major research correlating veteran drivers in this proceeding have convicted of moving violations in a past and future performance was done operated CMVs safely under those CMV. in England by Greenwood and Yule in conditions for at least 3 years, most for The qualifications, experience, and 1920. Subsequent studies, building on much longer. Their experience and medical condition of each applicant that model, concluded that crash rates driving records lead us to believe that were stated and discussed in detail in for the same individual exposed to each applicant is capable of operating in the August 8, 2016, notice (81 FR certain risks for two different time interstate commerce as safely as he/she 52514). periods vary only slightly (See Bates has been performing in intrastate and Neyman, University of California commerce. Consequently, FMCSA finds IV. Basis for Exemption Determination Publications in Statistics, April 1952). that exempting these applicants from Under 49 U.S.C. 31136(e) and 31315, Other studies demonstrated theories of the vision requirement in 49 CFR FMCSA may grant an exemption from predicting crash proneness from crash 391.41(b)(10) is likely to achieve a level the vision requirement in 49 CFR history coupled with other factors. of safety equal to that existing without 391.41(b)(10) if the exemption is likely These factors—such as age, sex, the exemption. For this reason, the to achieve an equivalent or greater level geographic location, mileage driven and Agency is granting the exemptions for of safety than would be achieved conviction history—are used every day the 2-year period allowed by 49 U.S.C. without the exemption. Without the by insurance companies and motor 31136(e) and 31315 to the 11 applicants exemption, applicants will continue to vehicle bureaus to predict the listed in the notice of July 12, 2016 (81 be restricted to intrastate driving. With probability of an individual FR 52514). the exemption, applicants can drive in experiencing future crashes (See Weber, We recognize that the vision of an interstate commerce. Thus, our analysis Donald C., ‘‘Accident Rate Potential: An applicant may change and affect his/her focuses on whether an equal or greater Application of Multiple Regression ability to operate a CMV as safely as in level of safety is likely to be achieved by Analysis of a Poisson Process,’’ Journal the past. As a condition of the permitting each of these drivers to drive of American Statistical Association, exemption, therefore, FMCSA will in interstate commerce as opposed to June 1971). A 1964 California Driver impose requirements on the 11 restricting him or her to driving in Record Study prepared by the California individuals consistent with the intrastate commerce. Department of Motor Vehicles grandfathering provisions applied to To evaluate the effect of these concluded that the best overall crash drivers who participated in the exemptions on safety, FMCSA predictor for both concurrent and Agency’s vision waiver program. considered the medical reports about nonconcurrent events is the number of Those requirements are found at 49 the applicants’ vision as well as their single convictions. This study used 3 CFR 391.64(b) and include the driving records and experience with the consecutive years of data, comparing the following: (1) That each individual be vision deficiency. experiences of drivers in the first 2 years physically examined every year (a) by To qualify for an exemption from the with their experiences in the final year. an ophthalmologist or optometrist who vision requirement, FMCSA requires a Applying principles from these attests that the vision in the better eye person to present verifiable evidence studies to the past 3-year record of the continues to meet the requirement in 49 that he/she has driven a commercial 11 applicants, two drivers were CFR 391.41(b)(10) and (b) by a medical vehicle safely with the vision deficiency involved in crashes and no drivers were examiner who attests that the individual for the past 3 years. Recent driving convicted of moving violations in a is otherwise physically qualified under performance is especially important in CMV. All the applicants achieved a 49 CFR 391.41; (2) that each individual evaluating future safety, according to record of safety while driving with their provide a copy of the ophthalmologist’s
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or optometrist’s report to the medical DEPARTMENT OF TRANSPORTATION • Fax: 202–493–2251. examiner at the time of the annual • Mail: Docket Operations Facility, medical examination; and (3) that each Federal Railroad Administration U.S. Department of Transportation, 1200 individual provide a copy of the annual [Docket Number FRA–2016–0094] New Jersey Avenue SE., W12–140, medical certification to the employer for Washington, DC 20590. • retention in the driver’s qualification Notice of Application for Approval of Hand Delivery: 1200 New Jersey file, or keep a copy in his/her driver’s Discontinuance or Modification of a Avenue SE., W12–140, Washington, DC qualification file if he/she is self- Railroad Signal System 20590, between 9 a.m. and 5 p.m., employed. The driver must have a copy Monday through Friday, except Federal of the certification when driving, for In accordance with part 235 of Title Holidays. presentation to a duly authorized 49 of the Code of Federal Regulations Communications received by Federal, State, or local enforcement (CFR) and 49 U.S.C. 20502(a), this November 17, 2016 will be considered official. document provides the public notice by FRA before final action is taken. that by a document dated September 9, Comments received after that date will V. Discussion of Comments 2016, Union Pacific Railroad Company be considered as far as practicable. FMCSA received 12 comments in this (UP) petitioned the Federal Railroad Anyone is able to search the proceeding. Brenda Hood, Shaun Administration (FRA) seeking approval electronic form of any written Bivens, Dana Arredondo, Brad Wright, for the discontinuance or modification communications and comments Felicia Daza, Thomas Hood, John of a signal system. FRA assigned the received into any of our dockets by the Bourne, Sherrilyn Arredondo, Nicholas petition Docket Number FRA–2016– name of the individual submitting the Washington, Ernesto Valdespino, Irene 0094. comment (or signing the document, if Applicant: Union Pacific Railroad Galvan, and an anonymous commenter submitted on behalf of an association, Company, Mr. Kevin D. Hicks, AVP are all in favor of granting Duane Brojer business, labor union, etc.). In Engineering-Design, 1400 Douglas an exemption from the vision standard. accordance with 5 U.S.C. 553(c), DOT Street, Mail Stop 0910, Omaha, NE solicits comments from the public to IV. Conclusion 68179. better inform its processes. DOT posts UP seeks approval of the Based upon its evaluation of the 11 these comments, without edit, including discontinuance of Control Point D120, any personal information the exemption applications, FMCSA Milepost 119.7, on the Chester exempts the following drivers from the commenter provides, to Subdivision, St. Louis Service Unit www.regulations.gov, as described in vision requirement in 49 CFR Division at Thebes, IL. Two crossovers 391.41(b)(10), subject to the the system of records notice (DOT/ALL– and four signals on the main tracks will 14 FDMS), which can be reviewed at requirements cited above (49 CFR be removed and will be replaced with 391.64(b)): www.dot.gov/privacy. See also https:// regenerative repeaters. The reason given www.regulations.gov/privacyNotice for Daniel S. Billig (MN) for the proposed discontinuance is to the privacy notice of regulations.gov. Duane N. Brojer (NM) expedite train movements in the area Robert C. Lauby, Jeffrey D. Davis (NC) and to make the switch renewal portion of a 2017 track project unnecessary. Associate Administrator for Railroad Safety, Paul D. Evenhouse (IL) A copy of the petition, as well as any Chief Safety Officer. Jonathan W. Gibbons (IL) written communications concerning the [FR Doc. 2016–23795 Filed 9–30–16; 8:45 am] Shane J. Graff (MI) petition, is available for review online at BILLING CODE 4910–06–P Brian D. Hoover (IA) www.regulations.gov and in person at Michael A. Kafer (KS) the U.S. Department of Transportation’s DEPARTMENT OF TRANSPORTATION Christopher Robinson (NY) (DOT) Docket Operations Facility, 1200 New Jersey Avenue SE., W12–140, Joshua R. Stanley (OK) Federal Railroad Administration Washington, DC 20590. The Docket Charles F. Tibbetts (SC) Operations Facility is open from 9 a.m. Railworthiness Directive for Certain In accordance with 49 U.S.C. 31136(e) to 5 p.m., Monday through Friday, Railroad Tank Cars Equipped With and 31315, each exemption will be valid except Federal Holidays. Bottom Outlet Valve Assembly and for 2 years unless revoked earlier by Interested parties are invited to Constructed by American Railcar FMCSA. The exemption will be revoked participate in these proceedings by Industries and ACF Industries if: (1) The person fails to comply with submitting written views, data, or the terms and conditions of the comments. FRA does not anticipate AGENCY: Federal Railroad exemption; (2) the exemption has scheduling a public hearing in Administration (FRA) Department of resulted in a lower level of safety than connection with these proceedings since Transportation (DOT). was maintained before it was granted; or the facts do not appear to warrant a ACTION: Notice of issuance and (3) continuation of the exemption would hearing. If any interested party desires availability of Railworthiness Directive. not be consistent with the goals and an opportunity for oral comment, they objectives of 49 U.S.C. 31136 and 31315. should notify FRA, in writing, before SUMMARY: On September 30, 2016, FRA If the exemption is still effective at the the end of the comment period and issued a Railworthiness Directive end of the 2-year period, the person may specify the basis for their request. (Directive or RWD) to all owners of apply to FMCSA for a renewal under All communications concerning these Department of Transportation (DOT) procedures in effect at that time. proceedings should identify the specification 111 general purpose tank appropriate docket number and may be cars. This document announces FRA’s Issued on: September 22, 2016. submitted by any of the following issuance of the RWD and its availability Larry W. Minor, methods: on FRA’s Web site. Associate Administrator for Policy. • Web site: http:// FOR FURTHER INFORMATION CONTACT: [FR Doc. 2016–23789 Filed 9–30–16; 8:45 am] www.regulations.gov. Follow the online Larry Strouse, General Engineer, BILLING CODE 4910–EX–P instructions for submitting comments. Hazardous Materials Division, Office of
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Technical Oversight, FRA, 200 W. flow method (AFM) indicator required • Mail: Docket Operations Facility, Adams Street, Suite 310, Chicago, by 49 CFR 229.29(b) and U.S. Department of Transportation, 1200 Illinois 60606, (312) 353–6203, 232.205(c)(1)(iii) can be safely extended New Jersey Avenue SE., W12–140, [email protected]. to 184 days on locomotives equipped Washington, DC 20590. • SUPPLEMENTARY INFORMATION: FRA with New York Air Brake (NYAB) CCB– Hand Delivery: 1200 New Jersey issued this Directive under 49 CFR II air brake systems. This petition has Avenue SE., Room W12–140, 180.509(b)(4) to all owners of DOT been assigned Docket Number FRA– Washington, DC 20590, between 9 a.m. specification 111 general purpose tank 2016–0086. and 5 p.m., Monday through Friday, cars based on its finding that as a result In the petition for waiver, BNSF states except Federal Holidays. of non-conforming welding practices, that it has been collecting data for 3 Communications received by DOT–111 tank cars built by American years in support of an extended interval November 17, 2016 will be considered Railcar Industries, Inc. (ARI) or ACF of 184 days for calibration of the AFM by FRA before final action is taken. Industries, LLC (ACF) between 2009 and indicator on CCB–II air brake systems, Comments received after that date will 2015 to the ARI or ACF 300 stub sill and it has obtained support for this be considered as far as practicable. design and equipped with a two-piece extension from NYAB. Summaries and Anyone is able to search the cast sump and bottom outlet valve skid analysis of this data and a statement electronic form of any written may be in an unsafe operating condition from NYAB are included as appendices. communications and comments and could result in the release of To validate this assertion, BNSF received into any of our dockets by the hazardous materials. As a result of the proposes to designate a test group of 200 name of the individual submitting the identified non-conforming welding locomotives running on the Southern comment (or signing the document, if practices, these cars may have Transcon route between Kansas City submitted on behalf of an association, substantial weld defects at the sump (Argentine), KS, and Barstow, CA. These business, labor union, etc.). In and BOV skid groove attachment welds, locomotives would be evaluated by a accordance with 5 U.S.C. 553(c), DOT potentially affecting each tank’s ability test waiver team at initial AFM solicits comments from the public to to retain its contents during indicator calibration, after 92 days, and better inform its processes. DOT posts transportation. FRA issued the Directive for locomotives qualified to continue these comments, without edit, including to ensure public safety, ensure the test, at 184 days. To help ensure the any personal information the compliance with the applicable Federal validity of this testing, BNSF has commenter provides, to regulations governing the safe already updated the AFM indicator www.regulations.gov, as described in movement of hazardous materials by calibration training of its mechanical the system of records notice (DOT/ALL– rail, and ensure the railworthiness of the forces and has completed a software 14 FDMS), which can be reviewed at tank cars. The full text of the Directive upgrade on 93 percent of CCB–II www.dot.gov/privacy. See also https:// is available on FRA’s Web site at equipped locomotives to eliminate a www.regulations.gov/privacyNotice for www.fra.gov by searching for RWD No. previous problem with loss of AFM the privacy notice of regulations.gov. 2016–01. calibration data due to dead batteries in Robert C. Lauby, the locomotive computer’s CPU. Issued in Washington, DC, on September Associate Administrator for Railroad Safety, 27, 2016. A copy of the petition, as well as any Chief Safety Officer. written communications concerning the Robert C. Lauby, [FR Doc. 2016–23794 Filed 9–30–16; 8:45 am] petition, is available for review online at Associate Administrator for Railroad Safety BILLING CODE 4910–06–P Chief Safety Officer. www.regulations.gov and in person at the U.S. Department of Transportation’s [FR Doc. 2016–23770 Filed 9–30–16; 8:45 am] (DOT) Docket Operations Facility, 1200 DEPARTMENT OF TRANSPORTATION BILLING CODE 4910–06–P New Jersey Avenue SE., W12–140, Washington, DC 20590. The Docket Federal Railroad Administration DEPARTMENT OF TRANSPORTATION Operations Facility is open from 9 a.m. to 5 p.m., Monday through Friday, [Docket Number FRA–2011–0107] Federal Railroad Administration except Federal Holidays. Petition for Waiver of Compliance Interested parties are invited to [Docket Number FRA–2016–0086] participate in these proceedings by In accordance with part 211 of Title submitting written views, data, or Petition for Waiver of Compliance 49 Code of Federal Regulations (CFR), comments. FRA does not anticipate this document provides the public In accordance with part 211 of Title scheduling a public hearing in notice that by a document dated July 18, 49 Code of Federal Regulations (CFR), connection with these proceedings since 2016, CSX Transportation (CSX) this provides the public notice that by the facts do not appear to warrant a requested that the Federal Railroad a document dated August 19, 2016, hearing. If any interested party desires Administration’s (FRA) Railroad Safety BNSF Railway Company (BNSF) has an opportunity for oral comment, they Board (Board) issue an expansion of the petitioned the Federal Railroad should notify FRA, in writing, before territory allowed for its nonstop Administration (FRA) for a waiver of the end of the comment period and continuous rail testing process. CSX’s compliance from certain provisions of specify the basis for their request. existing waiver in this docket exempts the Federal railroad safety regulations All communications concerning these it from the requirements of 49 CFR contained at 49 CFR part 229, Railroad proceedings should identify the 213.113(a) so that it could implement a Locomotive Safety Standards, and 49 appropriate docket number and may be pilot test process for nonstop CFR part 232, Brake System Safety submitted by any of the following continuous rail testing. The projected Standards for freight and other non- methods: starting date for implementing the passenger trains and equipment; end-of- • Web site: http:// process on the additional territories train devices. Specifically, BNSF seeks www.regulations.gov. Follow the online would be August 14, 2016, and the a test waiver to investigate whether the instructions for submitting comments. waiver process would continue up to 92-day interval for calibration of the air • Fax: 202–493–2251. December 31, 2017. The original
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approved waiver allows CSX to perform tracks 1, 2, and 3); Baltimore Terminal Comments received after that date will the continuous test process on the main Subdivision (Baltimore, MD, to be considered as far as practicable. tracks between Richmond, VA, and Baltimore, MD, MP BAK 89.6–BAK 96.6 Anyone is able to search the Jacksonville, FL; between Albany, NY, tracks 1 and 2); Baltimore Terminal electronic form of any written and Buffalo, NY; and on the C&O Subdivision (Baltimore, MD, to communications and comments Division from Russell, KY, to Newport Halethorpe, MD, MP BAA 0–BAA 6.5 received into any of our dockets by the News, VA. CSX is proposing the testing tracks 1, 2, and 3) Capital Subdivision name of the individual submitting the frequency along the mainline tracks not (Halethorpe, MD, to Hyattsville, MD, comment (or signing the document, if to exceed 62 days. MP BAA 6.6–BAA 33.1 tracks 1 and 2) submitted on behalf of an association, Expanded territory will include: Capital Subdivision (Hyattsville, MD, to business, labor union, etc.). In Chicago Division, Barr Subdivision Washington, DC, MP CFP 113.8–CFP accordance with 5 U.S.C. 553(c), DOT (Gary, IN, to Riverdale, IL, Milepost 121.7 tracks 1 and 2) RF&P Subdivision solicits comments from the public to (MP) DC 0–DC 11.4 tracks 1 and 2); Barr (Richmond, VA, to Washington, DC, MP better inform its processes. DOT posts Subdivision (Portage, IN, to Gary, IN, CFP 5.1–CFP 113.8 tracks 1, 2, 3, and 4); these comments, without edit, including MP BI 236.9–BI 249 tracks 1 and 2); Florence Division Richmond Terminal any personal information the Garrett Subdivision (Auburn, IN, to Subdivision (Richmond, VA, to commenter provides, to Portage, IN, MP BI 124.7–BI 236.9 tracks Richmond, VA, MP CFP 1–5.1 tracks 1 www.regulations.gov, as described in 1, 2, and 3); Garrett East Subdivision and 2); Richmond Terminal Subdivision the system of records notice (DOT/ALL– (Deshler, OH, to Auburn, IN, MP BI (Richmond, VA, to Richmond, VA, MP 14 FDMS), which can be reviewed at 62.8–BI 124.7 tracks 1 and 2); Great ARN 0–ARN 3.6 tracks 1 and 2); North www.dot.gov/privacy. See also https:// Lakes Division, Willard Subdivision End Subdivision (Richmond, VA, to www.regulations.gov/privacyNotice for (Willard, OH, to Deshler, OH, MP BI Rocky Mount, NC, MP A–A 119.9 tracks the privacy notice of regulations.gov. 1 and 2); South End Subdivision (Rocky 4.2–BI 62.8 tracks 1 and 2); Willard Robert C. Lauby, Terminal Subdivision (Willard, OH, to Mount, NC, to Dillon, SC, MP A 119.9– A 262.9 tracks 1 and 2). Associate Administrator for Railroad Safety, Willard, OH, MP BI 0–BI 4.2 1, 2, and Chief Safety Officer. 3); Willard Terminal Subdivision A copy of the petition, as well as any written communications concerning the [FR Doc. 2016–23793 Filed 9–30–16; 8:45 am] (Greenwich, OH, to Willard, OH, MP BG BILLING CODE 4910–06–P 192.9–BG 204 tracks 1, 2, and 3); petition, is available for review online at Greenwich Subdivision (Berea, OH, to www.regulations.gov and in person at the U.S. Department of Transportation’s Greenwich, OH, MP QI 14.4–QI 54.46 DEPARTMENT OF TRANSPORTATION tracks 1 and 2) Cleveland Shortline (DOT) Docket Operations Facility, 1200 Subdivision (Cleveland, OH, to Berea, New Jersey Avenue SE., W12–140, Federal Transit Administration Washington, DC 20590. The Docket OH, MP QDS 0–QDS 23.5 tracks 1 and [FTA Docket No. FTA–2016–0034] 2); Cleveland Terminal Subdivision Operations Facility is open from 9 a.m. to 5 p.m., Monday through Friday, (Euclid, OH, to Cleveland, OH, MP QD Agency Information Collection Activity 171.2–QD 174.83 tracks 1 and 2); Erie except Federal Holidays. Interested parties are invited to Under OMB Review West Subdivision (Derby, NY, to Euclid, participate in these proceedings by OH, MP QD 15.6–QD 171.2 4 tracks 1, AGENCY: Federal Transit Administration, submitting written views, data, or 2, 3, and 4); Albany Division, Buffalo DOT. comments. FRA does not anticipate Terminal Subdivision (Buffalo, NY, to ACTION: Notice of request for comments. scheduling a public hearing in Derby, NY, MP QD 0–QD 15.6 tracks 1, connection with these proceedings since SUMMARY: In compliance with the 2, and 3); Buffalo Terminal Subdivision the facts do not appear to warrant a Paperwork Reduction Act of 1995 (44 (North Chili, NY, to Buffalo, NY, MP QC hearing. If any interested party desires U.S.C. 3501 et seq.), this notice 382.8–QC 437.8 tracks 1, 2, 3, and 4) an opportunity for oral comment, they announces that the Information Rochester Subdivision (Syracuse, NY, to should notify FRA, in writing, before Collection Requirements (ICRs) North Chili, NY, MP QC 296.8–382.8 the end of the comment period and abstracted below have been forwarded tracks 1 and 2) Syracuse Terminal specify the basis for their request. to the Office of Management and Budget Subdivision (Oneida, NY, to Syracuse, All communications concerning these (OMB) for review and comment. The NY, MP QC 263.7–QC 296.8 tracks 1, 2, proceedings should identify the ICRs describe the nature of the and 3); Mohawk Subdivision appropriate docket number and may be information collections and their (Amsterdam, NY, to Oneida, NY, MP QC submitted by any of the following expected burdens. The Federal Register 169.7–QC 263.7 tracks 1 and 2); Selkirk methods: notice with a 60-day comment period Subdivision (Selkirk, NY, to • Web site: http:// soliciting comments on the following Amsterdam, NY, MP QG 13.7–QG 42.47 www.regulations.gov. Follow the online collections of information was tracks 1 and 2); Castleton Subdivision instructions for submitting comments. published on May 9, 2016 (81 FR (Selkirk, NY, to Selkirk, NY, MP QG • Fax: 202–493–2251. 28158). 11.7–QG 13.7 tracks 1 and 2); River • Mail: Docket Operations Facility, Subdivision (North Bergen, NJ, to U.S. Department of Transportation, 1200 DATES: Comments must be submitted on Selkirk, NY, MP QR 1.68–QR 132.6 New Jersey Avenue SE., W12–140, or before November 2, 2016. track 1 and 2); Trenton Subdivision Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Tia (Philadelphia, PA, to Manville NJ, MP • Hand Delivery: 1200 New Jersey Swain, Office of Administration, QA 0–QA 57.33 tracks 1, 2, and 3); Avenue SE., Room W12–140, Management Planning Division, 1200 Baltimore Division Philadelphia Washington, DC 20590, between 9 a.m. New Jersey Avenue SE., Mail Stop Subdivision (Philadelphia, PA, to and 5 p.m., Monday through Friday, TAD–10, Washington, DC 20590 (202) Philadelphia, PA, MP BBF 0–BBF 1.38 except Federal holidays. 366–0354. tracks 1 and 2); Philadelphia Communications received by SUPPLEMENTARY INFORMATION: The Subdivision (Philadelphia, PA, to November 17, 2016 will be considered Paperwork Reduction Act of 1995 Baltimore, MD, MP BAK 0–BAK 89.6 by FRA before final action is taken. (PRA), Public Law 104–13, Section 2,
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109 Stat. 163 (1995) (codified as revised changes or innovations to modify low or DEPARTMENT OF TRANSPORTATION at 44 U.S.C. 3501–3520), and its no emission vehicles or facilities. Federal Transit Administration implementing regulations, 5 CFR part Funding is provided through formula 1320, require Federal agencies to issue allocations and competitive grants. With [FTA Docket No. FTA–2016–0033] two notices seeking public comment on the passing of the FAST Act, two information collection activities before competitive grant programs were added: Agency Information Collection Activity OMB may approve paperwork packages. 5339(b) for bus and bus facility projects Under OMB Review 44 U.S.C. 3506, 3507; 5 CFR 1320.5, and 5339(c) for bus and bus facility 1320.8(d)(1), 1320.12. On May 9, 2016, AGENCY: Federal Transit Administration, projects that support low and zero- DOT. FTA published a 60-day notice (81 FR emission vehicles. Eligible recipients ACTION: Notice of request for comments. 28158) in the Federal Register soliciting include 5307 Direct Recipients, States comments on the ICR that the agency and Federally Recognized Tribes. SUMMARY: was seeking OMB approval. FTA In compliance with the Eligible sub-recipients include those Paperwork Reduction Act of 1995 (44 received no comments after issuing this recipients that that receive a grant under 60-day notice. Accordingly, DOT U.S.C. 3501 et seq.), this notice the formula or discretionary programs announces that the Information announces that these information and may allocate amounts from the collection activities have been re- Collection Requirements (ICRs) grant to sub-recipients that are public abstracted below have been forwarded evaluated and certified under 5 CFR agencies or private nonprofit 1320.5(a) and forwarded to OMB for to the Office of Management and Budget organizations engaged in public (OMB) for review and comment. The review and approval pursuant to 5 CFR transportation. Recipients apply for 1320.12(c). ICRs describe the nature of the grants electronically and FTA collects information collections and their Before OMB decides whether to milestone and financial status reports expected burdens. The Federal Register approve these proposed collections of from designated recipients and states on notice with a 60-day comment period information, it must provide 30 days for a quarterly basis. The information soliciting comments on the following public comment. 44 U.S.C. 3507(b); 5 submitted ensures FTA’s compliance collections of information was CFR 1320.12(d). Federal law requires with applicable federal laws. published on May 9, 2016 (81 FR OMB to approve or disapprove 28157). paperwork packages between 30 and 60 Annual Estimated Total Burden days after the 30 day notice is Hours: 60,650 hours. DATES: Comments must be submitted on published. 44 U.S.C. 3507 (b)–(c); 5 CFR ADDRESSES: All written comments must or before November 2, 2016. 1320.12(d); see also 60 FR 44978, 44983, refer to the docket number that appears FOR FURTHER INFORMATION CONTACT: Tia Aug. 29, 1995. OMB believes that the 30 at the top of this document and be Swain, Office of Administration, day notice informs the regulated submitted to the Office of Information Management Planning Division, 1200 community to file relevant comments and Regulatory Affairs, Office of New Jersey Avenue SE., Mail Stop and affords the agency adequate time to Management and Budget, 725 17th TAD–10, Washington, DC 20590 (202) digest public comments before it Street NW., Washington, DC 20503, 366–0354. renders a decision. 60 FR 44983, Aug. Attention: FTA Desk Officer. SUPPLEMENTARY INFORMATION: The 29, 1995. Therefore, respondents should Alternatively, comments may be sent Paperwork Reduction Act of 1995 submit their respective comments to via email to the Office of Information (PRA), Public Law 104–13, Section 2, OMB within 30 days of publication to and Regulatory Affairs (OIRA), Office of 109 Stat. 163 (1995) (codified as revised best ensure having their full effect. 5 Management and Budget, at the at 44 U.S.C. 3501–3520), and its CFR 1320.12(c); see also 60 FR 44983, following address: implementing regulations, 5 CFR part Aug. 29, 1995. [email protected]. 1320, require Federal agencies to issue The summaries below describe the Comments are Invited On: Whether two notices seeking public comment on nature of the information collection the proposed collection of information information collection activities before requirements (ICRs) and the expected is necessary for the proper performance OMB may approve paperwork packages. burden. The requirements are being of the functions of the Department, 44 U.S.C. 3506, 3507; 5 CFR 1320.5, submitted for clearance by OMB as including whether the information will 1320.8(d)(1), 1320.12. On May 9, 2016, required by the PRA. have practical utility; the accuracy of FTA published a 60-day notice (81 FR Title: 49 U.S.C. Section 5339, Bus and the Department’s estimate of the burden 28157) in the Federal Register soliciting Bus Facilities Program. of the proposed information collection; comments on the ICR that the agency OMB Control Number: 2132–0576. ways to enhance the quality, utility, and was seeking OMB approval. FTA Type of Request: Revision of a clarity of the information to be received no comments after issuing this currently approved information collected; and ways to minimize the 60-day notice. Accordingly, DOT collection. burden of the collection of information announces that these information Abstract: 49 U.S.C. Section 5339, the on respondents, including the use of collection activities have been re- Bus and Bus Facilities Program, was automated collection techniques or evaluated and certified under 5 CFR originally authorized by the Moving other forms of information technology. 1320.5(a) and forwarded to OMB for Ahead for Progress in the 21st Century A comment to OMB is best assured of review and approval pursuant to 5 CFR (MAP–21). The program was having its full effect if OMB receives it 1320.12(c). reauthorized under the Fixing America’s within 30 days of publication of this Before OMB decides whether to Surface Transportation (FAST) Act notice in the Federal Register. approve these proposed collections of Section 3017. This program authorizes information, it must provide 30 days for the Secretary of Transportation to William Hyre, public comment. 44 U.S.C. 3507(b); 5 provide funding to replace, rehabilitate Deputy Associate Administrator for CFR 1320.12(d). Federal law requires and purchase buses and related Administration. OMB to approve or disapprove equipment and to construct bus-related [FR Doc. 2016–23772 Filed 9–30–16; 8:45 am] paperwork packages between 30 and 60 facilities including technological BILLING CODE P days after the 30 day notice is
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published. 44 U.S.C. 3507(b)–(c); 5 CFR Street NW., Washington, DC 20503, applications for vessel enrollment in the 1320.12(d); see also 60 FR 44978, 44983, Attention: FTA Desk Officer. MSP. Aug. 29, 1995. OMB believes that the 30 Alternatively, comments may be sent DATES: Applications for the enrollment day notice informs the regulated via email to the Office of Information of two vessels must be received no later community to file relevant comments and Regulatory Affairs (OIRA), Office of than November 2, 2016. Applications and affords the agency adequate time to Management and Budget, at the should be submitted to the address digest public comments before it following address: oira_submissions@ listed in the ADDRESSES section below. renders a decision. 60 FR 44983, Aug. omb.eop.gov. 29, 1995. Therefore, respondents should Comments are Invited on: Whether ADDRESSES: Application forms and submit their respective comments to the proposed collection of information instructions are available on the OMB within 30 days of publication to is necessary for the proper performance MARAD Web site at http:// best ensure having their full effect. 5 of the functions of the Department, www.marad.dot.gov/ships-and- CFR 1320.12(c); see also 60 FR 44983, including whether the information will shipping/strategic-sealift/maritime- Aug. 29, 1995. have practical utility; the accuracy of security-program-msp/. Applications The summaries below describe the the Department’s estimate of the burden shall be addressed to the Director, Office nature of the information collection of the proposed information collection; of Sealift Support, Maritime requirements (ICRs) and the expected ways to enhance the quality, utility, and Administration, Department of burden. The requirements are being clarity of the information to be Transportation, Maritime submitted for clearance by OMB as collected; and ways to minimize the Administration, 1200 New Jersey required by the PRA. burden of the collection of information Avenue SE., W25–310, Washington, DC Title: 49 U.S.C. Section 5337, the on respondents, including the use of 20590. State of Good Repair Grants Program. automated collection techniques or FOR FURTHER INFORMATION CONTACT: OMB Control Number: 2132–0577. other forms of information technology. William G. McDonald, Director, Office Type of Request: Extension without A comment to OMB is best assured of of Sealift Support, Maritime change of a currently approved having its full effect if OMB receives it Administration, (202) 366–0688. For information collection. within 30 days of publication of this military utility questions, call Mr. Tim Abstract: 49 U.S.C. Section 5337, the notice in the Federal Register. Boemecke, United States Transportation State of Good Repair Grants Program William Hyre, Command (USTRANSCOM), (618) 220– was authorized by Moving Ahead for Deputy Associate Administrator for 1452. Progress in the 21st Century (MAP–21). Administration. It was reauthorized under the Fixing SUPPLEMENTARY INFORMATION: Section [FR Doc. 2016–23771 Filed 9–30–16; 8:45 am] America’s Surface Transportation 53102(a) of Title 46, United States Code, (FAST) Act Section 3015. This program BILLING CODE P directs the Secretary of Transportation authorizes the Secretary of (Secretary), in consultation with the Transportation to make grants to DEPARTMENT OF TRANSPORTATION Secretary of Defense (SecDef), to designated recipients to maintain, establish a fleet of active, commercially- replace, and rehabilitate high intensity Maritime Administration viable, militarily-useful, privately- fixed guideway systems and high owned vessels to meet national defense intensity motorbus systems. Eligible Acceptance of Applications for the and other security requirements. recipients include state and local Award of Two Maritime Security Payments to participating operators are government authorities in urbanized Program Operating Agreements subject to the availability of areas with high intensity fixed appropriations and are limited to the AGENCY: Maritime Administration, guideway systems and/or high intensity following amounts: $3.5 million per Department of Transportation. motorbus systems operating for at least ship for FY 2016, $4.99995 million per ACTION: seven years. Projects are funded at 80 Notice of application period for ship for FY 2017, $5.0 million per ship percent federal with a 20 percent local the Maritime Security Program. for FY 2018 through 2020, $5.233463 match requirement by statute. FTA will SUMMARY: The Maritime Administration million per ship for FY 2021, and $3.7 apportion funds to designated (MARAD) is issuing this request for million per ship for FY 2022 through FY recipients. The designated recipients applications for eligible vessels to enroll 2025. Consistent with the National will then allocate funds as appropriate in two Maritime Security Program Security Requirements section below, to recipients that are public entities in (MSP) Operating Agreements, subject to participating operators are required to the urbanized areas. FTA can make the availability of appropriations, in make their commercial transportation grants to direct recipients after sub- accordance with the provisions of the resources available upon request by allocation of funds. Recipients apply for Maritime Security Act of 2003, Public SecDef during times of war or national grants electronically, and FTA collects Law 108–136, div. C, title XXXV, as emergency. milestone and financial status reports amended by Section 3508 of the Application Criteria from designated recipients on a National Defense Authorization Act for quarterly basis. The information Fiscal Year (FY) 2013, Public Law 112– The NDAA 2013 amended the submitted ensures FTA’s compliance 239 (NDAA 2013). The MSP maintains procedures in 46 U.S.C. 53103(c) for with applicable federal laws. a fleet of active, commercially viable, awarding new MSP Operating Annual Estimated Total Burden militarily useful, privately owned Agreements. Namely, it established a Hours: 9,120 hours. vessels to meet national defense and revised priority system whereby ADDRESSES: All written comments must other security requirements and to applications would first be evaluated on refer to the docket number that appears maintain a United States presence in the basis of vessel type, as determined at the top of this document and be international commercial shipping. This by Department of Defense (DOD) submitted to the Office of Information request for applications provides, requirements, with secondary and Regulatory Affairs, Office of among other things, application criteria consideration then provided to the Management and Budget, 725 17th and a deadline for submitting citizenship status of the applicant.
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Vessel Requirements submit the same vessel(s) for The purpose of this workshop is to Acceptable vessels for these MSP consideration may do so by submitting discuss the results from testing of Operating Agreements must meet the a letter expressing their intention and various categories of GPS/Global requirements of 46 U.S.C. 53102(b) and providing any updated information and Navigation Satellite System (GNSS) 46 CFR 296.11. In addition, the documentation. receivers to include aviation (non- Commander, USTRANSCOM, has Award certified), cellular, general location/ established DOD general evaluation navigation, high precision and MARAD does not guarantee the award networks, timing, and space-based criteria on the military requirements for of MSP Operating Agreements in eligible MSP vessels. Priority receivers. The workshop also will response to applications submitted include a discussion on the consideration, consistent with the under this Notice. In the event that no requirements of 46 U.S.C. 53103(c), will development of use-case scenarios for awards are made or an application is not these categories. be given to applications providing for selected for an award, the applicant will DATES: enrollment of the following vessel types be provided with a written reason why in order of priority: the application was denied, consistent Meeting date/time: October 14, 2016 1. Roll-On/Roll-Off (RO/RO) Vessels. with the requirements of 46 U.S.C. 10 a.m.–4 p.m. (Eastern Daylight Time). 2. Multi-Purpose/Heavy Lift Vessels. 53103(c). Registration deadline: October 11, 3. Geared Container Ships. 2016. Request alternative meeting 4. All other vessel types, which will Protection of Confidential Commercial formats or services by October 7, 2016. be considered after all applications for or Financial Information ADDRESSES: RTCA, Inc., 1150 18th St. the above listed vessels types have been If the application includes NW., Suite 910, Washington, DC 20036. reviewed. For each individual application, the information that the applicant considers Several days leading up to the offered vessel’s class society vessel-type to be a trade secret or confidential workshop, an email containing the designation will serve as the primary commercial or financial information, the agenda, dial-in, and WebEx information factor in determining the priority applicant should do the following: (1) will be provided. category in which the vessel is placed. Note on the front cover that the FOR FURTHER INFORMATION CONTACT: submission ‘‘Contains Confidential Stephen M. Mackey, U.S. Department of National Security Requirements Commercial or Financial Information Transportation, John A. Volpe National Successful applicants will be required (CCFI)’’; (2) mark each affected page Transportation Systems Center, V–345, to enter into an Emergency ‘‘CCFI’’; and (3) highlight or otherwise 55 Broadway, Cambridge, MA 02142, Preparedness Agreement (EPA) denote the CCFI portions. MARAD will [email protected] 617–494– pursuant to 46 U.S.C. 53107. The EPA protect such information from 2753. incorporates the terms of the Voluntary disclosure to the extent allowed under SUPPLEMENTARY INFORMATION: The goal Intermodal Sealift Agreement (VISA), applicable law. In the event MARAD of the GPS Adjacent Band Compatibility available in 79 FR 64462 (October 29, receives a Freedom of Information Act Assessment Study is to evaluate the 2014). (FOIA) request for the information, procedures described in the adjacent radio frequency band power Documentation Department’s FOIA regulation at 49 CFR levels that can be tolerated by GPS/ Vessels must be documented in the 7.29 will be followed. Only information GNSS receivers, and advance the United States under 46 U.S.C. chapter that is ultimately determined to be Department’s understanding of the 121 prior to being eligible for MSP confidential under that procedure will extent to which such power levels payments. Further, proof of U.S. Coast be exempt from disclosure under FOIA. impact devices used for transportation Guard vessel documentation and all safety purposes, among other GPS/ (Authority: 46 U.S.C. 53102 and 53103; 46 GNSS applications. The Department relevant charter and management CFR 296.24; 49 CFR 1.92 and 1.93) obtained input from broad public agreements must be approved by By Order of the Maritime Administrator. MARAD before the vessel will be outreach in development of its GPS Dated: September 28, 2016. eligible to receive MSP payments. If a Adjacent Band Compatibility T. Mitchell Hudson, Jr., vessel being considered is not currently Assessment Test Plan that included four under U.S. documentation, MARAD Secretary, Maritime Administration. public meetings with stakeholders on requires information regarding the time [FR Doc. 2016–23823 Filed 9–30–16; 8:45 am] September 18 and December 4, 2014, line proposed that would bring the BILLING CODE 4910–81–P and March 12 and October 2, 2015, vessel under U.S. Coast Guard public issuance of a draft test plan on documentation. September 9, 2015 (see 80 FR 54368), DEPARTMENT OF TRANSPORTATION and comments received regarding the Vessel Operation test plan. The final test plan was Global Positioning System Adjacent Vessels under MSP Operating published March 9, 2016 (see 81 FR Band Compatibility Assessment Agreements shall be operated 12564) and requested voluntary Workshop V Meeting exclusively in foreign commerce as participation in this Study by any defined in 46 U.S.C. 53101(4) or in AGENCY: Office of the Assistant interested GPS/GNSS device permissible mixed foreign commerce Secretary for Research and Technology manufacturers or other parties whose and domestic trade as provided by 46 (OST–R), Department of Transportation. products incorporate GPS/GNSS U.S.C. 53105(a)(1)(A). ACTION: Notice of meeting. devices. In April 2016, radiated testing of GNSS devices took place in an Prior Applicants SUMMARY: The purpose of this notice is anechoic chamber at the U.S. Army Applicants who previously responded to inform the public that the U.S. Research Laboratory at the White Sands to MARAD’s November 27, 2015, Notice Department of Transportation will host Missile Range (WSMR) facility in New of Application Period for the Maritime its fifth workshop on the Global Mexico. Additional lab testing was Security Program, 80 FR 74209 Positioning System (GPS) Adjacent conducted in July 2016 at Zeta (November 27, 2015), that wish to Band Compatibility Assessment effort. Associates in Fairfax, Virginia and
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MITRE Corporation in Bedford, tel.: 202/622–2490, Assistant Director 3506(c)(2)(A)). Currently, the IRS is Massachusetts (see 81 FR 44408). for Licensing, tel.: 202/622–2480, Office soliciting comments concerning of Foreign Assets Control, or Chief Revenue Procedure 2006–50, Expenses Registration Counsel (Foreign Assets Control), tel.: Paid by Certain Whaling Captains in This workshop is open to the general 202/622–2410, Office of the General Support of Native Alaskan Subsistence public by registration only. For those Counsel, Department of the Treasury Whaling. who would like to attend the workshop, (not toll free numbers). DATES: Written comments should be we request that you register no later SUPPLEMENTARY INFORMATION: received on or before December 2, 2016 than October 11, 2016. Please use the to be assured of consideration. following link to register: https:// Electronic and Facsimile Availability ADDRESSES: Direct all written comments volpecenterevents.webex.com/ The SDN List and additional to Tuawana Pinkston, Internal Revenue volpecenterevents/onstage/ information concerning OFAC sanctions Service, Room 6526, 1111 Constitution g.php?MTID=e856d4f062c520e41d079 programs are available from OFAC’s Avenue NW., Washington, DC 20224. 3b581a9ead82 Web site (www.treasury.gov/ofac). You must include: FOR FURTHER INFORMATION CONTACT: Notice of OFAC Actions Requests for additional information or • Name copies of the revenue procedure should • Organization On September 28, 2016 OFAC be directed to Martha R. Brinson, • Telephone number blocked the property and interests in • Mailing and email addresses property of the following two Internal Revenue Service, Room 6129, • Attendance method (WebEx or on individuals pursuant to E.O. 13413, 1111 Constitution Avenue NW., site) ‘‘Blocking Property of Certain Persons Washington, DC 20224, or through the • Country of citizenship Contributing to the Conflict in the Internet at [email protected]. The U.S. Department of Democratic Republic of the Congo’’: SUPPLEMENTARY INFORMATION: Transportation is committed to 1. KUMBA, Gabriel Amisi (a.k.a. Title: Expenses Paid by Certain providing equal access to this workshop AMISI, Nkumba; a.k.a. ‘‘Tango Fort’’; Whaling Captains in Support of Native for all participants. If you need a.k.a. ‘‘Tango Four’’); DOB 28 May 1964; Alaskan Subsistence Whaling. OMB Number: 1545–2041. alternative formats or services because nationality Congo, Democratic Republic Revenue Procedure Number: Revenue of a disability, please contact Stephen of the; Gender Male; Major General; Procedure 2006–50. Mackey (see FOR FURTHER INFORMATION Commander of the First Defense Zone; Abstract: This revenue procedure CONTACT section) with your request by Former Armed Forces of the Democratic provides the procedures under which close of business October 7, 2016. Republic of the Congo land forces commander (individual) [DRCONGO]. the whaling expenses of an individual Issued in Washington, DC, on September 2. NUMBI, John; DOB 1957; POB recognized by the Alaska Eskimo 26, 2016. Kolwezi, Katanga Province, Democratic Whaling Commission (AEWC) as a Gregory D. Winfree, Republic of the Congo; Gender Male; whaling captain charged with the Assistant Secretary for Research and General; Former National Inspector, responsibility of maintaining and Technology. Congolese National Police (individual) carrying out sanctioned whaling [FR Doc. 2016–23791 Filed 9–30–16; 8:45 am] [DRCONGO]. activities are substantiated for purposes BILLING CODE 4910–9X–P of Internal Revenue Code § 170(n), as Dated: September 28, 2016. enacted by the American Jobs Creation Andrea M. Gacki, Act of 2004 and effective for whaling DEPARTMENT OF THE TREASURY Acting Director, Office of Foreign Assets expenses incurred after December 31, Control. 2004. Public Law 109–357, § 335. Office of Foreign Assets Control [FR Doc. 2016–23831 Filed 9–30–16; 8:45 am] Current Actions: There are no changes BILLING CODE 4810–AL–P being made to the revenue procedure at Sanctions Actions Pursuant to this time. Executive Order 13413 Type of Review: Extension of a DEPARTMENT OF THE TREASURY AGENCY: Office of Foreign Assets currently approved collection. Control, Treasury. Affected Public: Individuals or Internal Revenue Service households. ACTION: Notice. Proposed Collection; Comment Estimated Number of Respondents: SUMMARY: The Treasury Department’s Request for Revenue Procedure 2006– 24. Estimated Time per Respondent: 2 Office of Foreign Assets Control (OFAC) 50 is publishing the names of two hours. individuals whose property and AGENCY: Internal Revenue Service (IRS), Estimated Total Annual Burden interests in property are blocked Treasury. Hours: 48. pursuant to Executive Order (E.O.) ACTION: Notice and request for The following paragraph applies to all 13413, and whose names have been comments. of the collections of information covered added to OFAC’s list of Specially by this notice: SUMMARY: The Department of the An agency may not conduct or Designated Nationals and Blocked Treasury, as part of its continuing effort sponsor, and a person is not required to Persons (SDN List). to reduce paperwork and respondent respond to, a collection of information DATES: OFAC’s actions described in this burden, invites the general public and unless the collection of information notice were effective September 28, other Federal agencies to take this displays a valid OMB control number. 2016. opportunity to comment on proposed Books or records relating to a collection FOR FURTHER INFORMATION CONTACT: and/or continuing information of information must be retained as long Associate Director for Global Targeting, collections, as required by the as their contents may become material tel.: 202/622–2420, Assistant Director Paperwork Reduction Act of 1995, in the administration of any internal for Sanctions Compliance & Evaluation, Public Law 104–13 (44 U.S.C. revenue law. Generally, tax returns and
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tax return information are confidential, agency, including whether the techniques or other forms of information as required by 26 U.S.C. 6103. information shall have practical utility; technology; and (e) estimates of capital Request for Comments: Comments (b) the accuracy of the agency’s estimate or start-up costs and costs of operation, submitted in response to this notice will of the burden of the collection of maintenance, and purchase of services be summarized and/or included in the information; (c) ways to enhance the to provide information. request for OMB approval. All quality, utility, and clarity of the Approved: September 28, 2016. comments will become a matter of information to be collected; (d) ways to Tuawana Pinkston, public record. Comments are invited on: minimize the burden of the collection of (a) Whether the collection of IRS Reports Clearance Officer. information on respondents, including information is necessary for the proper [FR Doc. 2016–23943 Filed 9–29–16; 4:15 pm] through the use of automated collection performance of the functions of the BILLING CODE 4830–01–P
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Part II
Environmental Protection Agency
40 CFR Parts 51, 52, 60, et al. Revisions to the Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas (GHG) Permitting Regulations and Establishment of a Significant Emissions Rate (SER) for GHG Emissions Under the PSD Program; Proposed Rule
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ENVIRONMENTAL PROTECTION The EPA may publish any comment A. What revisions to the PSD and title V AGENCY received to its public docket. Do not GHG permitting regulations is the EPA submit electronically any information proposing with this action? 40 CFR Parts 51, 52, 60, 70 and 71 you consider to be Confidential 1. Revisions to the PSD Regulations 2. Revisions to the PSD PAL Regulations [EPA–HQ–OAR–2015–0355; FRL–9951–79– Business Information (CBI) or other 3. Revisions to State-Specific PSD OAR] information whose disclosure is Regulations restricted by statute. Multimedia 4. Revisions to the Title V Regulations RIN 2060–AS62 submissions (audio, video, etc.) must be 5. Revisions to State-Specific Title V accompanied by a written comment. Regulations Revisions to the Prevention of The written comment is considered the B. What additional regulatory revisions is Significant Deterioration (PSD) and official comment and should include the EPA proposing with this action? Title V Greenhouse Gas (GHG) discussion of all points you wish to V. Establishment of a GHG SER Permitting Regulations and make. The EPA will generally not A. What is the legal basis for establishing Establishment of a Significant a GHG SER? consider comments or comment B. What is the regulatory context for the de Emissions Rate (SER) for GHG contents located outside of the primary Emissions Under the PSD Program minimis exception proposed in this rule? submission (i.e., on the Web, Cloud, or C. Historical Approaches to Establishing a AGENCY: Environmental Protection other file sharing system). For De Minimis Level in the PSD Program Agency (EPA). additional submission methods, the full D. What is the technical basis for the proposed GHG SER? ACTION: Proposed rule. EPA public comment policy, information about CBI or multimedia 1. Summary of Technical Support SUMMARY: The Environmental Protection submissions, and general guidance on Information Agency (EPA) is proposing to revise 2. Review of PSD Permitting and GHG making effective comments, please visit Emission Sources provisions applicable to greenhouse http://www2.epa.gov/dockets/ a. GHG Permitting Under Step 1 of the gases (GHG) in the EPA’s Prevention of commenting-epa-dockets. Tailoring Rule Significant Deterioration (PSD) and title FOR FURTHER INFORMATION CONTACT: b. RBLC Permitting Information V permitting regulations. This action is Questions concerning this proposed rule 3. GHG Emissions Levels for Combustion in response to the June 23, 2014, U.S. should be addressed to Ms. Carrie Units Supreme Court’s decision in Utility Air Wheeler, U.S. Environmental Protection 4. Non-Combustion Related GHG Regulatory Group (UARG) v. EPA and Agency, Office of Air Quality Planning Emissions 5. Potential BACT Techniques Applicable the April 10, 2015, Amended Judgment and Standards, Air Quality Policy by the United States Court of Appeals to GHG Emission Sources Division, (C504–01), Research Triangle a. Energy Efficiency Measures for the District of Columbia Circuit (D.C. Park, NC 27711, telephone number (919) b. Carbon Capture and Storage Circuit) in Coalition for Responsible 541–9771, email at wheeler.carrie@ c. Gas Recovery and Utilization Regulation v. EPA. The proposed PSD epa.gov. d. Leak Detection and Repair Measures and title V revisions involve changes to To request a public hearing or 6. Costs of GHG BACT Review several regulatory definitions in the PSD information pertaining to a public E. Proposed GHG SER and Request for and title V regulations, revisions to the hearing on this proposal, contact Ms. Comment PSD provisions on GHG Plantwide Pamela Long, U.S. Environmental VI. What would be the economic impacts of Applicability Limitations (PALs), and Protection Agency, Office of Air Quality the proposed rule? revisions to other provisions necessary VII. How should state, local and tribal Planning and Standards, Air Quality authorities adopt the regulatory revisions to ensure that neither the PSD nor title Policy Division, (C504–01), Research included in this action? V rules require a source to obtain a Triangle Park, NC 27711; telephone VIII. Environmental Justice Considerations permit solely because the source emits number (919) 541–0641; fax number IX. Statutory and Executive Order Reviews or has the potential to emit (PTE) GHGs (919) 541–5509; email at: long.pam@ A. Executive Order 12866: Regulatory above the applicable thresholds. In epa.gov (preferred method of contact). Planning and Review and Executive addition, the EPA is also proposing a SUPPLEMENTARY INFORMATION: Order 13563: Improving Regulation and significant emissions rate (SER) for Throughout this document wherever Regulatory Review B. Paperwork Reduction Act (PRA) GHGs under the PSD program that ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean would establish an appropriate C. Regulatory Flexibility Act (RFA) the EPA. D. Unfunded Mandates Reform Act threshold level below which Best The information in this (UMRA) Available Control Technology (BACT) is SUPPLEMENTARY INFORMATION section of E. Executive Order 13132: Federalism not required for a source’s GHG this preamble is organized as follows: F. Executive Order 13175: Consultation emissions. I. General Information and Coordination With Indian Tribal DATES: Comments must be received on A. To whom does this action apply? Governments or before December 2, 2016. B. Where To Get a Copy of This Document G. Executive Order 13045: Protection of If anyone contacts us requesting to and Other Related Information Children From Environmental Health C. What acronyms, abbreviations and units Risks and Safety Risks speak at a public hearing by October 13, H. Executive Order 13211: Actions 2016, we will hold a public hearing. are used in this preamble? II. Overview of the Proposed Rule Concerning Regulations That Additional information about the III. Background Significantly Affect Energy Supply, hearing would be published in a A. PSD Program Distribution or Use subsequent Federal Register notice. B. Title V Program I. National Technology Transfer and ADDRESSES: Submit your comments, C. Application of PSD and Title V Advancement Act identified by Docket ID No. EPA–HQ– Programs to GHG Emissions J. Executive Order 12898: Federal Actions To Address Environmental Justice in OAR–2015–0355, at http:// 1. Regulation of the Pollutant GHGs 2. Revisions to PSD and Title V Minority Populations and Low-Income www.regulations.gov. Follow the online Regulations in the Tailoring Rule Populations instructions for submitting comments. 3. Actions After the Tailoring Rule K. Determination Under CAA Section Once submitted, comments cannot be IV. Revisions to the PSD and Title V GHG 307(d) edited or removed from Regulations.gov. Permitting Regulations X. Statutory Authority
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I. General Information industry groups, such as the owners and of potentially affected categories and operators of proposed new and modified entities include: A. To whom does this action apply? major stationary sources. The majority This proposal potentially affects owners and operators of sources in all
Industry group NAICS a
Mining ...... 21. Utilities (electric, natural gas, other systems) ...... 2211, 2212, 2213. Manufacturing (food, beverages, tobacco, textiles, leather) ...... 311, 312, 313, 314, 315, 316. Wood product, paper manufacturing ...... 321, 322. Petroleum and coal products manufacturing ...... 32411, 32412, 32419. Chemical manufacturing ...... 3251, 3252, 3253, 3254, 3255, 3256, 3259. Rubber product manufacturing ...... 3261, 3262. Miscellaneous chemical products ...... 32552, 32592, 32591, 325182, 32551. Nonmetallic mineral product manufacturing ...... 3271, 3272, 3273, 3274, 3279. Primary and fabricated metal manufacturing ...... 3311, 3312, 3313, 3314, 3315, 3321, 3322, 3323, 3324, 3325, 3326, 3327, 3328, 3329. Machinery manufacturing ...... 3331, 3332, 3333, 3334, 3335, 3336, 3339. Computer and electronic products manufacturing ...... 3341, 3342, 3343, 3344, 3345, 4446. Electrical equipment, appliance, and component manufacturing ...... 3351, 3352, 3353, 3359. Transportation equipment manufacturing ...... 3361, 3362, 3363, 3364, 3365, 3366, 3366, 3369. Furniture and related product manufacturing ...... 3371, 3372, 3379. Miscellaneous manufacturing ...... 3391, 3399. Waste management and remediation ...... 5622, 5629. a North American Industry Classification System.
Potentially affected entities also Regulations and Regulatory Actions, at NAAQS National Ambient Air Quality include state, local and tribal permitting http://www.epa.gov/title-v-operating- Standard authorities 1 responsible for permits/current-regulations-and- NESHAP National Emission Standard for implementing the PSD and title V regulatory-actions. A ‘‘track changes’’ Hazardous Air Pollutants NHTSA National Highway Transportation permitting programs. version of the full regulatory text that Safety Administration As noted, the potentially affected incorporates and shows the full context NOX Nitrogen Oxides entities could be in any industry group. of the changes in this proposed action NO2 Nitrogen Dioxide Thus, the earlier table is not intended to is also available in the docket for this NSPS New Source Performance Standard be exhaustive, but rather provides a rulemaking. In addition to the proposal NSR New Source Review guide for readers regarding likely and regulatory text documents, other OMB Office of Management and Budget affected entities. The EPA believes this relevant documents are located in the PAL[s] Plantwide Applicability table lists the most typical types of Limitation[s] docket, including technical support PFC[s] Perfluorocarbons affected entities. Other types of entities documents referenced in this preamble. PM Particulate Matter not listed in the table could also be C. What acronyms, abbreviations and PSD Prevention of Significant Deterioration regulated. To determine if an entity is PTE Potential To Emit regulated by this action, the units are used in this preamble? RACT Reasonably Available Control applicability criteria found in the PSD APA Administrative Procedures Act Technology and title V regulations (and which are AQRV[s] Air Quality Related Value[s] SER Significant Emissions Rate briefly described in Sections III.A and B BACT Best Available Control Technology SF6 Sulfur Hexafluoride of this preamble) should be consulted. CAA or Act Clean Air Act SIP State Implementation Plan SO Sulfur Dioxide CCS Carbon Capture and Sequestration 2 TCEQ Texas Commission on Environmental B. Where To Get a Copy of This CFR Code of Federal Regulations Document and Other Related Quality CH4 Methane Information TIP Tribal Implementation Plan CO Carbon Monoxide Tpy Tons Per Year In addition to being available in the CO2 Carbon Dioxide UARG Utility Air Regulatory Group docket, an electronic copy of this CO2e Carbon Dioxide Equivalent UMRA Unfunded Mandates Reform Act proposal notice will also be available on D.C. Circuit United States Court of Appeals VOC Volatile Organic Compound for the District of Columbia Circuit the World Wide Web. Following II. Overview of the Proposed Rule signature by the EPA Administrator, a EGU Electric Generating Unit copy of this notice will be posted in the EIA Economic Impact Analysis The EPA is proposing revisions to the regulations section of our New Source EPA U.S. Environmental Protection Agency provisions applicable to GHGs in its FIP Federal Implementation Plan Review (NSR) Web site, under PSD and title V permitting regulations FR Federal Register in order to conform those regulations Regulatory Actions, at http:// GHG[s] Greenhouse Gas[es] www.epa.gov/nsr/nsr-regulatory-actions with the U.S. Supreme Court’s decision GHGRP Greenhouse Gas Reporting Program in UARG v. EPA, 134 S.Ct. 2427 (2014), and the title V Web site, under Current GWP Global Warming Potential HP Horsepower and the April 10, 2015, Amended 1 Under the PSD regulations, the entities that HFC[s] Hydrofluorocarbons Judgment by the D.C. Circuit in implement the program are referred to as IC Internal Combustion Coalition for Responsible Regulation v. ‘‘reviewing authorities,’’ while under the title V EPA, Nos. 09–1322, 10–073, 10–1092 program the implementing entities are referred to as ICR Information Collection Request ‘‘permitting authorities.’’ For simplicity, in this LAER Lowest Achievable Emission Rate and 10–1167 (D.C. Cir. April 10, 2015) preamble we refer to both as ‘‘permitting LDAR Leak Detection and Repair (Amended Judgment). Some of these authorities.’’ LDVR Light-Duty Vehicle Rule provisions were promulgated as part of
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the June 3, 2010, regulation titled 19, 2015, rule because the revisions carbon dioxide equivalent (CO2e) ‘‘Prevention of Significant Deterioration proposed in this action amend, rather threshold that currently determines and Title V Greenhouse Gas Tailoring than completely remove, text that whether GHG BACT is required for Rule’’ 2 (hereinafter ‘‘Tailoring Rule’’). remains pertinent to the PSD and title ‘‘anyway sources.’’ 5 134 S.Ct. at 2438 n. The D.C. Circuit Amended Judgment V programs as a whole and their 3. The U.S. Supreme Court also ordered that: (1) The regulations under continued application to GHGs. As a expressly did not address whether review be vacated to the extent they result, these revisions are not 75,000 tpy CO2e necessarily exceeds a require a stationary source to obtain a ministerial in nature and not exempt true de minimis level, holding only that PSD or title V permit solely because the from notice-and-comment rulemaking the EPA must justify its selection of source emits or has the potential to emit procedures under the ‘‘good cause’’ such a level on proper grounds. 134 GHG above the applicable thresholds exception of the APA. Therefore, this S.Ct. at 2449. An ‘‘anyway source’’ in and (2) that the EPA consider whether action gives the public an opportunity this context refers to a facility or any further revisions to its regulations to comment on how the EPA proposes emission source that is otherwise are appropriate in light of UARG v. EPA to revise other parts of its regulations to required to obtain a PSD permit based and, if so, that it undertake to make conform to the Amended Judgment as on its emissions of one or more such revisions. The proposed revisions further explained in Section IV. regulated NSR pollutants other than to the PSD and title V GHG permitting In general, this action proposes GHG. The U.S. Supreme Court limited regulations include changes to certain revisions to the PSD definitions at 40 the scope of the PSD permitting program regulatory definitions and the PSD PAL Code of Federal Regulations (CFR) to ‘‘anyway sources’’ and added that the provisions applicable to GHGs. In sections 51.166 and 52.21 for the EPA may exempt an ‘‘anyway source’’ addition, we are proposing to establish following terms: ‘‘major stationary from the GHG BACT requirement if the a SER for GHGs 3 under the PSD air source,’’ ‘‘major modification,’’ source emits a de minimis amount of permitting program to establish an ‘‘significant,’’ and ‘‘subject to GHGs. 134 S.Ct. at 2449. appropriate threshold level below regulation.’’ This action also proposes to In response to the outcome of the which BACT review is not required for revise the title V definitions at 40 CFR UARG decision, this rulemaking action GHG emissions from a source that is parts 70 and 71 for the terms ‘‘major proposes a GHG SER that represents a required to obtain a PSD permit. stationary source’’ and ‘‘subject to de minimis level of GHG emissions for The EPA published an initial set of regulation.’’ In addition, this action the purposes of determining the revisions in light of the UARG v. EPA proposes to add a definition of applicability of the GHG BACT decision and the D.C. Circuit’s ‘‘greenhouse gases’’ to these PSD and requirement at ‘‘anyway sources,’’ new Amended Judgment on August 19, title V regulations, which contains and modified sources that trigger PSD 2015.4 These revisions removed entire content that was previously part of the permitting obligations on the basis of sections and paragraphs that were definition of ‘‘subject to regulation’’ in their emissions of air pollutants other readily severable from other provisions each set of regulations. The EPA than GHGs. If not for provisions that in the PSD and title V regulations and believes these revisions are appropriate remain in the EPA’s definition of specifically identified in the D.C. to fully implement the Amended ‘‘subject to regulation’’ at this time, any Circuit’s Amended Judgment. These Judgment. We are also proposing to GHG emissions increase at an ‘‘anyway removed provisions required a revise the PSD GHG PAL provisions at source’’ would be considered stationary source to obtain a PSD permit 40 CFR part 52 to reflect the UARG ‘‘significant’’ and thus require a newly solely on the basis of the source’s GHG decision, which stated that sources that constructed major source, or a major emissions and required that the EPA only emit or have the potential to emit modification at an existing major study and consider further phasing-in GHGs above the applicable thresholds source, to undergo PSD BACT review the PSD and title V permitting are no longer required to obtain a PSD for GHGs.6 requirements at lower GHG emissions permit. Furthermore, we are proposing In July 2014, following the UARG thresholds. Because of the nature of the to revise certain provisions under 40 decision, the EPA issued a D.C. Circuit’s Amended Judgment, these CFR part 60, which the EPA wrote to memorandum titled, ‘‘Next Steps and ensure that the existing GHG earlier revisions were ministerial in Preliminary Views on the Application of applicability threshold for the PSD nature and exempt from notice-and- Clean Air Act (CAA) Permitting BACT requirement continues to apply comment rulemaking procedures under Programs to Greenhouse Gases on an interim basis after this pollutant the ‘‘good cause’’ exception of the Following the U.S. Supreme Court’s became regulated under standards set Administrative Procedure Act (APA). Decision in UARG v. EPA’’ (Preliminary In this action, the EPA is proposing a forth in those parts. Finally, we are Views Memo).7 In that memorandum second set of regulatory revisions that proposing to revise a few state-specific PSD or title V permitting provisions 5 we believe are necessary to fully Under existing regulations, a threshold level of that, in general, established permitting 75,000 tpy CO2e is contained in the definition of a implement the UARG decision and D.C. requirements for sources that only emit ‘‘subject to regulation’’ to determine the Circuit Amended Judgment and further or have the potential to emit GHGs applicability of the GHG PSD permitting revisions that are appropriate in light of requirements to ‘‘anyway sources.’’ 40 CFR part above the major source thresholds. We UARG. The revisions proposed in this 51.166(b)(48)(iv); 40 CFR part 52.21(b)(49)(iv). This are proposing the revisions listed in this value was based principally on addressing potential action were not included in the August paragraph in response to the D.C. permitting burdens, but it was not proposed or Circuit’s directive in the Amended promulgated as a permanent GHG SER (75 FR 2 75 FR 31514, June 3, 2010. 31560). 3 In this document, we reserve the abbreviations Judgment. 6 Definition of ‘‘significant,’’ 40 CFR part ‘‘GHG’’ and ‘‘GHGs’’ to refer to the air pollutant In addition, the EPA is proposing to 51.166(b)(23)(ii) and 40 CFR part 52.21(b)(23)(ii). ‘‘greenhouse gases,’’ which is defined as the establish a SER for the pollutant GHGs 7 Next Steps and Preliminary Views on the aggregate of six individual greenhouse gases as under the PSD permitting program in Application of Clean Air Act (CAA) Permitting discussed in Section III C.2 of this preamble. We response to the UARG decision. The Programs to Greenhouse Gases Following the spell out ‘‘greenhouse gas’’ where we refer more Supreme Court’s Decision in UARG v. EPA, broadly to compounds that trap heat in the U.S. Supreme Court recognized that the Memorandum from Janet G. McCabe, Acting atmosphere. EPA did not justify on de minimis Assistant Administrator, Office of Air and 4 80 FR 50199, August 19, 2015. grounds the 75,000 tons per year (tpy) Radiation, and Cynthia Giles, Assistant
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the EPA explained that, among other III. Background pollutants do not include hazardous air things, it would consider whether to pollutants listed under CAA section A. PSD Program promulgate a de minimis level.8 The 112. 40 CFR part 52.21(b)(v). EPA also explained that, with respect to Part C of title I of the CAA contains Construction of a new major new ‘‘anyway sources,’’ we the requirements for the PSD program. stationary source 12 is subject to preliminarily ‘‘intend to continue The primary element of this program is preconstruction review under PSD if the applying the PSD BACT requirements to a preconstruction review and permitting source has the potential to emit any GHG if the source emits or has the requirement for new and modified regulated NSR pollutant in the amount potential to emit 75,000 tpy or more of stationary sources of air pollution of at least 100 or 250 tpy, depending on 9 GHG on a [CO2e] basis.’’ With respect locating in areas meeting a national the source category. The PSD permitting to modified sources, we said that ambient air quality standard (NAAQS) requirements then apply to each initially ‘‘the EPA intends to continue (‘‘attainment’’ areas) and areas for which regulated NSR pollutant that the source applying the PSD BACT requirements to there is insufficient information to would have the potential to emit in GHG if both of the following classify the area as either attainment or ‘‘significant amounts.’’ 40 CFR parts circumstances are present: (1) The nonattainment (‘‘unclassifiable’’ areas). 52.21(j); 52.21(m)(1)(i). PSD does not modification is otherwise subject to PSD Under the CAA, the PSD apply to pollutants for which the area in for a pollutant other than GHG; (2) the preconstruction permitting requirement which the source would be located is a modification results in a GHG emissions applies to any ‘‘major emitting facility’’ nonattainment area (often referred to as increase and a net GHG emissions that commences construction or ‘‘nonattainment pollutants’’) 40 CFR increase equal to or greater than 75,000 undertakes a ‘‘modification.’’ CAA part 52.21(i)(2). The amount of tpy CO2e and greater than zero on a 165(a) and CAA 169(2)(C). The Act emissions of each pollutant that is mass basis.’’ 10 defines the term ‘‘major emitting considered significant is specified in the In this proposed rule, based on our facility’’ as a stationary source that definition of the term ‘‘significant.’’ 40 technical and legal analyses as emits or has the potential to emit any air CFR part 52.21(b)(23)(i). Because these described in Section V of this preamble, pollutant in the amount of at least 100 values are expressed as a rate of we are proposing to establish a 75,000 or 250 tpy, depending on the source emissions in tpy, the EPA often refers to tpy CO2e SER. We propose to determine category. CAA section 169(1). The Act each value as a ‘‘significant emissions that this level represents a de minimis also defines ‘‘modification’’ as any rate’’ or ‘‘SER.’’ For any regulated NSR level of GHG emissions for purposes of physical or operational change that pollutant for which no SER is specified, increases the amount of any air determining whether the GHG BACT any emissions rate is considered pollutant emitted by the source. CAA review should be required as part of an significant. 40 CFR part 52.21(b)(23)(ii). ‘‘anyway source’’ PSD permit. A 75,000 section 111(a)(4). The EPA’s regulations reflect these The PSD program also applies to an tpy CO2e GHG SER, based on our existing major stationary source when technical analysis, represents a level of requirements.11 Under the regulations, PSD applies to any ‘‘major stationary there is a planned ‘‘major modification’’ GHGs, below which there is trivial or no to the source, which is a physical value in conducting a BACT analysis for source’’ that begins actual construction on a new facility or undertakes a ‘‘major change or change in the method of GHGs because we would not expect to operation that would result in both a obtain meaningful GHG reductions from modification’’ in an area designated as attainment or unclassifiable for a significant emissions increase and a requiring application of BACT at all significant net emissions increase of one such sources. In addition, there does not NAAQS. 40 CFR 52.21(a)(2)(i)–(iii). The or more regulated NSR pollutants, other appear to be a basis to set a GHG SER regulations define a ‘‘major stationary than nonattainment pollutants.13 The level above 75,000 tpy CO e based on source’’ as a stationary source that 2 SERs are the measure that is used to our review of the GHG permitting emits, depending on the source determine whether projected emissions experience to date and the fundamental category, at least 100 or 250 tpy, of a increases of regulated NSR pollutants principles for establishing a de minimis ‘‘regulated NSR pollutant.’’ 40 CFR part are significant. exception to a statutory requirement as 52.21(b)(1)(i)(a)–(b). A ‘‘regulated NSR One principal PSD requirement is that described in Section V of this preamble. pollutant’’ is defined as any of the a permit authorizing construction of a Therefore, we are not considering a following: (1) In general, any pollutant new major source or major modification GHG SER level greater than 75,000 tpy subject to a NAAQS, (2) any pollutant CO e. Finally and although our analysis subject to a standard of performance for must contain emissions limitations 2 based on application of the BACT for supports a SER at 75,000 tpy CO2e, we new sources under CAA section 111, (3) are soliciting comments on (and any of a certain type of stratospheric each regulated NSR pollutant. BACT is associated supporting documentation ozone depleting substances, or (4) any pollutant that otherwise is subject to 12 A new major stationary source can be either a for) establishing a GHG SER level below newly constructed facility or a physical change at 75,000 tpy CO2e and at or above 30,000 regulation under the Act. 40 CFR part an existing minor source that would qualify as a tpy CO2e. Based on our current 52.21(b)(50)(i)–(iv). Regulated NSR major stationary source by itself. 40 CFR understanding, we do not believe there 52.21(b)(1)(i)(c). is any basis for a SER level to be 11 The EPA’s PSD regulations are found in two 13 There is a two-step process for determining parts of 40 CFR, part 51 and part 52. The part 52 whether a planned physical or operational change established below 30,000 tpy CO2e, and regulations at 40 CFR 52.21 constitute the federal at an existing major stationary source qualifies as we are not considering SER values PSD program that applies in any state or other area, a major modification that is subject to PSD. First, below this level. such as Indian country, that does not have an the change itself must be projected to result in a approved PSD program in its implementation plan. significant increase in a regulated NSR pollutant. If The part 51 regulations at 40 CFR 51.166 spell out so, the change must also be projected to result in Administrator, Office of Enforcement and the requirements that must be met for the EPA to a significant net emissions increase of that pollutant Compliance Assurance, U.S. EPA, to Regional approve a PSD program into an implementation when other contemporaneous, creditable increases Administrators, July 24, 2014. Available at http:// plan. The language in the regulations is nearly and decreases of that pollutant at the source are www.epa.gov/sites/production/files/2015-12/ identical, with small differences reflecting their taken into account. This process is spelled out at documents/20140724memo.pdf. different purposes. For simplicity, we cite only the 40 CFR 52.21(a)(2)(iv); the definition of ‘‘major 8 Id. at 4. 40 CFR part 52 regulations in this section, but the modification’’ is at 40 CFR 52.21(b)(2) and the 9 Id. at 3. part 51 regulations contain analogous provisions in definition of ‘‘net emissions increase’’ is at 40 CFR 10 Id. at 3. 40 CFR 51.166. 52.21(b)(3).
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determined on a case-by-case basis, for the PSD program in two sections of has interpreted the term ‘‘major source’’ taking into account, among other its regulations—40 CFR part 51.166 and to include stationary sources that emit factors, the energy, environmental, and 52.21. Under 40 CFR part 51.166, which or have a potential to emit (PTE) of 100 economic impacts. 40 CFR part sets out the minimum requirements for tpy or more of any air pollutant subject 52.21(b)(12) and (j). To ensure these obtaining the EPA’s approval of the PSD to regulation, as now reflected in the criteria are satisfied in individual program in a State Implementation Plan regulatory definition of ‘‘major source’’ permitting decisions, the EPA has (SIP), states may develop unique PSD in 40 CFR parts 70.2 and 71.2. 75 FR developed a ‘‘top-down’’ approach for requirements and procedures tailored 31521. In general and under the EPA’s BACT review that the EPA applies and for the air quality needs of each area as longstanding interpretation, a pollutant recommends to state permitting long as the program is at least as is ‘‘subject to regulation’’ for purposes of authorities. This involves a decision stringent as the EPA requirements. title V if it is subject to a CAA process that includes identification of Because a state’s SIP is required to requirement establishing actual control all available control technologies, contain a PSD program, states with PSD of emissions and it is first considered elimination of technically infeasible programs approved under 40 CFR part ‘‘subject to regulation’’ for title V options, ranking of remaining options 51.166 are typically referred to as ‘‘SIP- purposes when such a requirement by control and cost effectiveness, and approved states.’’ Some local air ‘‘takes effect.’’ 15 Title V generally does then selection of BACT. In re Prairie pollution agencies have also developed not add new pollution control State Generating Company, 13 E.A.D. 1, their own PSD programs that have been requirements, but it does require that 13–14 (EAB 2006). Under PSD, once a approved, so typically they are also each permit contain emission source is determined to be major for any referred to as SIP-approved. To date, no limitations and other conditions as are regulated NSR pollutant, a BACT review tribes have developed PSD programs necessary to assure compliance with all is performed for each attainment under Tribal Implementation Plans ‘‘applicable requirements’’ required by pollutant that is projected to increase (TIP). In cases where state, tribal or local the CAA, and it requires that certain over its PSD significance level as a air pollution control agencies do not procedural requirements be followed. result of new construction or a have a SIP-approved or TIP-approved ‘‘Applicable requirements’’ for title V modification project at an existing major PSD program, as applicable, the federal purposes include stationary source source. PSD program at 40 CFR part 52.21 requirements (e.g., New Source In addition to complying with the applies. In these areas, such state, tribal Performance Standards (NSPS), and SIP BACT requirements, the source must or local air pollution control agencies requirements, including PSD). analyze impacts on ambient air quality can be delegated the federal law Procedural requirements include and demonstrate that the construction authority to issue permits on behalf of providing review of permits by the EPA, will not cause or contribute to a the EPA, and those programs are often states, and the public, and requiring violation of any NAAQS or PSD referred to as ‘‘delegated programs.’’ To permit holders to track, report, and increments. However, this requirement date, no tribes have requested annually certify their compliance status is not applicable to GHGs because there delegation of the federal PSD program with respect to their permit are no NAAQS or PSD increments for and, therefore, the EPA is the permitting requirements. GHGs. A permit applicant must also authority in those areas. The EPA is also analyze impacts on soil, vegetation and the permitting authority in all areas C. Application of PSD and Title V visibility. In addition, new sources or where no other entity has requested Programs to GHG Emissions modifications that would impact Class I delegation of the federal program or has 1. Regulation of the Pollutant GHGs requested approval of its own PSD areas (e.g., national parks) may be On April 2, 2007, the U.S. Supreme program under a SIP or a TIP (e.g., subject to additional requirements to Court held that GHGs fit within the Puerto Rico, other U.S. Territories, and protect air quality related values definition of the term ‘‘air pollutant’’ (AQRVs) that have been identified for the jurisdictions of several local agencies in California). under CAA section 302(g). such areas (e.g., visibility). Under PSD, Massachusetts v. EPA, 549 U.S. 497 if a source’s proposed project may B. Title V Program (2007). As a result, the EPA was impact a Class I area, the Federal Land required to determine, under CAA Manager is notified and is responsible Title V of the CAA establishes requirements for an operating permit section 202(a) whether: (1) GHGs from for evaluating a source’s projected new motor vehicles cause or contribute impact on the AQRVs. Because it is not program for major sources of air pollutant emissions and certain other to air pollution which may reasonably possible with current climate change be anticipated to endanger public health modeling to quantify the impacts at sources. CAA section 502. The operating permit requirements under title V are or welfare, or (2) the science is too particular locations attributable to a uncertain to make a reasoned specific GHG source, the EPA considers intended to ensure that sources comply with CAA applicable requirements. decision.16 After issuing a proposal and the reduction of GHG emissions to the receiving comment, the EPA maximum extent achievable under the CAA section 504; 40 CFR parts 70.1(b) and 71.1(b). The title V program is Administrator signed two distinct BACT requirement to be the best findings regarding GHGs under CAA technique to satisfy the additional implemented through regulations contained in 40 CFR part 70 for the section 202(a), which were subsequently impacts analysis and Class I area published in the Federal Register on requirements related to GHGs. PSD and EPA-approved programs implemented by state and local agencies and tribes, December 15, 2009:17 Title V Permitting Guidance for • Endangerment Finding: The 14 and 40 CFR part 71 for the federal Greenhouse Gases at 47–49. Administrator found that the current State or local air pollution control program generally implemented by the agencies issue most PSD permits. The EPA in jurisdictions without a program approved under part 70 (e.g., much of 15 A more detailed definition of the term ‘‘subject EPA establishes the basic requirements to regulation’’ can be found in 40 CFR 70.2 and Indian country). 71.2. 14 U.S. EPA, Document No. EPA–457/B–11–001, The title V program requires major 16 This background is also summarized in the March 2011. http://www2.epa.gov/nsr/new-source- sources and certain other sources to Tailoring Rule. 75 FR 31519. review-policy-and-guidance-document-index. apply for operating permits. The EPA 17 74 FR 66496.
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and projected atmospheric subject to permitting under the source’’ that met or exceeded the GHG concentrations of the mix of six long- longstanding PSD and title V major emissions threshold, the primary lived and directly emitted GHGs are source applicability thresholds. additional requirement, beyond the PSD reasonably anticipated to endanger the Under these circumstances, the EPA permitting requirements already public health and welfare of current and estimated that thousands of sources, applicable to pollutants other than future generations. The six gases are mostly smaller sources that would GHGs, was to determine and implement carbon dioxide (CO2), nitrous oxide otherwise not be subject to PSD BACT for GHGs.20 The EPA explained (N2O), methane (CH4), permitting, would become subject to that the establishment of a significance hydrofluorocarbons (HFCs), PSD review each year, thereby incurring level—which, in effect, is a BACT perfluorocarbons (PFCs) and sulfur the costs of the permit applications and threshold—[wa]s appropriate and . . . hexafluoride (SF6) (referred to as ‘‘well- individualized PSD BACT requirements decided [at that time] to establish this mixed greenhouse gases’’ in the that the PSD provisions require. We also level at 75,000 tpy CO2e. 75 FR 31568. endangerment finding). estimated that millions of new and The EPA also described this value as a • Cause or Contribute Finding: The existing sources, mostly existing ‘‘significance level’’ for convenience Administrator found that the emissions commercial and residential sources that because it was intended to function in of the single air pollutant defined as the had never before been required to obtain a manner similar to the significance aggregate group of six ‘‘well-mixed an air permit, would become subject to levels for other pollutants. 75 FR 31559. greenhouses gases’’ from new motor title V, and would incur the costs of However, the EPA did not add a GHG vehicles and new motor vehicle engines obtaining title V permits. Additionally, value to the definition of ‘‘significant’’ contributes to the GHG air pollution that state and local permitting authorities in the regulations or attempt to threatens public health and welfare. would be burdened by the large number determine a de minimis level for GHGs. These findings did not themselves of these permit applications, which 75 FR 31560. The EPA selected the impose any requirements on industry or would be orders of magnitude greater 75,000 tpy CO2e level for this purpose other entities. However, they triggered a than the current inventory of in Step 1 because it was the same as one requirement for the EPA to issue applications and permits and would that the EPA established for Step 2, standards under CAA section 202(a) vastly exceed the administrative based on a judgment that the ‘‘applicable to’’ emissions of the air resources of the permitting authorities. administrative burdens of addressing pollutant that the EPA found causes or Therefore, to relieve the GHGs in the PSD program would be contributes to the air pollution that overwhelming permitting burdens that manageable using that value as an endangers public health and welfare. would have fallen on permitting applicability level. 75 FR 31568. Accordingly, the EPA and the authorities and sources under the Act in For the title V program under Step 1, Department of Transportation’s National the absence of the EPA action, we no sources were subject to title V Highway Traffic Safety Administration promulgated the Prevention of permitting solely as a result of their (NHTSA) finalized the Light-Duty Significant Deterioration and Title V GHG emissions. Only existing sources Vehicle Rule (LDVR) as a joint rule on Greenhouse Gas Tailoring Rule with, or new sources obtaining, title V May 7, 2010. 75 FR 25324. Consistent (Tailoring Rule).18 This rule limited the permits based on pollutants other than with the Cause or Contribute Finding, scope of permitting requirements that GHGs were required to address GHGs as the LDVR contains standards and other would have otherwise applied under the part of their title V permitting to the regulations applicable to the emissions EPA’s understanding of the CAA by extent necessary to assure compliance of the air pollutant defined as the including applicability criteria with GHG applicable requirements aggregate group of six greenhouse gases: specifically ‘‘tailored’’ for GHGs. These established under other CAA programs. CO , N O, CH , HFCs, PFCs and SF . 40 2 2 4 6 criteria determined which GHG For a Step 1 title V ‘‘anyway source,’’ CFR part 86.1818–12(a). When controls on GHGs in the LDVR emission sources initially became the only additional requirement, beyond took effect, the pollutant GHGs became subject to the PSD and title V programs the already-applicable title V permitting a pollutant ‘‘subject to regulation under when controls of GHG under the LDVR requirements for the pollutants other the Act,’’ and therefore subject to PSD became effective. Thus, the rule than GHGs, was to apply any title V and title V requirements. 75 FR 17004. established a phase-in approach for PSD requirements to its GHG emissions The EPA identified January 2, 2011, as and title V applicability, with the first when it applied for, renewed or revised the date when GHGs first became two steps of the phase-in only its permit. These requirements included subject to regulation and subject to the applicable to the largest emitters of incorporating any GHG applicable stationary source permitting programs GHGs, and also included enforceable requirements (e.g., GHG BACT under the CAA. Id. commitments for the EPA to study and requirements from a PSD permit) and consider further phasing-in the PSD and associated monitoring, recordkeeping 2. Revisions to PSD and Title V title V permitting requirements under and reporting. This also included a Regulations in the Tailoring Rule the Act for sources emitting at lower requirement to identify GHG emissions Prior to promulgation of the LDVR, GHG emissions thresholds. and other information to the extent the EPA recognized that the regulation Under Step 1, which went into effect required under the title V regulations. of GHGs under the PSD and title V on January 2, 2011, only ‘‘anyway Step 2, which went into effect on July programs would radically increase the sources’’ required a PSD permit and 1, 2011, allowed PSD applicability number of sources subject to the were subject to PSD requirements for program at the 100 or 250 tpy major their GHG emissions based on an also had to equal or exceed the statutory thresholds of 100 or 250 tpy on a mass basis. 75 FR 31523, source applicability thresholds provided applicability threshold of 75,000 tpy 19 June 3, 2010. under the CAA. 74 FR 55292. This is CO2e. For a Step 1 PSD ‘‘anyway 20 Shortly after Step 1 went into effect, the EPA primarily because combustion sources issued guidance on permitting, including BACT 18 75 FR 31514, June 3, 2010. emit GHGs (specifically CO2) at levels determinations, for GHGs titled ‘‘PSD and Title V 19 that may be from several hundred times In addition to the applicability thresholds Permitting Guidance for Greenhouse Gases,’’ EPA established in the Tailoring Rule on a CO2e basis, Document No. EPA–457/B–11–001, March 2011. to over 1,000 times the emissions of in order for a source’s GHG emissions to trigger PSD http://www3.epa.gov/nsr/ghgdocs/ghgpermitting other combustion pollutants that are or title V requirements, the quantity of the GHGs guidance.pdf.
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under the Act to extend beyond determined for each compound reflects continue to require that PSD permits, ‘‘anyway sources’’ to new stationary its heat-trapping capacity relative to otherwise required based on emissions sources that emit or have a PTE of CO2. The mass of emissions of a of pollutants other than GHGs 100,000 tpy CO2e or more. Step 2 also constituent compound is multiplied by pollutants, contain limitations on GHG covered modifications at existing major its GWP to determine the emissions in emissions based on the application of stationary sources that emit or have a terms of CO2e. A source’s emissions of BACT. That is, the ruling effectively PTE of 100,000 tpy CO2e or more that all compounds in terms of CO2e are upheld PSD and title V permitting would increase GHG emissions by summed to determine the source’s total requirements for GHG emissions under 75,000 tpy CO2e or more, even though GHG emissions. Step 1 of the Tailoring Rule for ‘‘anyway the modification would not otherwise sources,’’ and invalidated the be subject to PSD based on emissions of 3. Actions After the Tailoring Rule application of PSD and title V any pollutant other than GHGs. A Step After the Tailoring Rule was permitting requirements to Step 2 2 source was required to obtain a PSD completed, in accordance with the sources to the extent that these sources permit, with the associated procedural phase-in process begun in that rule, on triggered permitting requirements solely requirements, but the primary July 12, 2012, the EPA completed a Step because they had GHG emissions above substantive requirement for GHGs was 3 rulemaking. In this rule, the EPA the applicable thresholds. again to determine and implement determined that the Tailoring Rule Step The U.S. Supreme Court also noted BACT. Once PSD was triggered by GHG 1 or Step 2 permitting thresholds did that BACT applied to GHGs under emissions, these Step 2 PSD sources not need to be revised at that time. The provisions in the Tailoring Rule only if also were subject to the applicable PSD EPA also improved the usefulness of a source emits GHGs in excess of 75,000 requirements for any new or increased PALs for GHG emissions by allowing tpy CO2e, but that the EPA had not emissions of regulated NSR pollutants GHG PALs to be established on a CO2e arrived at that number by determining other than GHGs at or above of the basis, in addition to the already- that the impacts of emissions below that applicable SERs. available mass basis.21 The action level were de minimis. 134 S.Ct. at Step 2 also extended the applicability revised the regulations to allow a source 2449. The U.S. Supreme Court of title V beyond ‘‘anyway sources’’ to emitting only GHGs in major amounts recognized that the ‘‘EPA may establish new and existing sources that emitted or (i.e., an existing Step 2 source) to submit an appropriate de minimis threshold had a PTE of 100,000 tpy CO2e or more, an application for a CO2e-based GHG below which BACT is not required for even if the new or existing source would PAL while also maintaining its minor a source’s greenhouse gas emissions,’’ not otherwise be subject to title V based source status.22 but said that the EPA would need to on emissions of any pollutant other than The United States courts also resolved justify such a threshold on proper GHGs. These Step 2 title V sources several challenges to the Tailoring Rule grounds. Id. The U.S. Supreme Court incurred the procedural expenses of and other EPA actions regarding GHGs. had earlier noted that the EPA’s 75,000 obtaining a title V permit, but the On June 26, 2012, the D.C. Circuit CO2e tpy threshold was not an exercise requirement to apply for a permit did upheld in all respects the Endangerment of its authority to establish de minimis not, in itself, trigger any additional Finding, LDVR, Tailoring Rule, and exceptions. 134 S.Ct. at 2438 n. 3. To substantive requirements for control of other actions pertinent to the regulation address this part of the U.S. Supreme GHGs. These permits also incorporated of GHGs under the PSD and title V Court’s decision, the EPA is now any applicable CAA requirements that programs. After an appeal of this case, proposing to exercise that authority. applied to the source for any other air on June 23, 2014, the U.S. Supreme This action proposes a GHG SER, which pollutants. Court issued a decision in UARG v. EPA represents a de minimis exception level, In addition, the Tailoring Rule made addressing only the application of for purposes of determining the clear that the pollutant regulated in the stationary source permitting applicability of the BACT requirement PSD and title V programs was the same requirements to GHGs. in PSD permitting. as the one regulated in the LDVR—the The U.S. Supreme Court held that the To communicate the EPA’s single air pollutant defined as the EPA may not treat GHGs as an air preliminary views on the effect of the aggregate group of the six well-mixed pollutant for the specific purpose of UARG v. EPA decision to the public, on GHGs. 75 FR 31522. To reflect this, the determining whether a source is a major July 24, 2014, the EPA issued the Tailoring Rule adopted a definition of source (or a modification thereof) and previously-described Preliminary Views the term ‘‘greenhouse gases’’ or ‘‘GHGs’’ thus required to obtain a PSD or title V Memo. In that memorandum, the EPA in revisions to the PSD and title V permit. However, the U.S. Supreme explained that, with respect to ‘‘anyway regulations that describes this aggregate Court also said that the EPA could sources,’’ we initially intended ‘‘to air pollutant (as opposed to the continue applying the PSD BACT individual gases). We use a similar 21 Under the EPA’s existing regulations, a PAL is requirements to GHG if the source emits convention regarding GHGs in this an emissions limitation for a single pollutant or has the potential to emit 75,000 tpy 23 preamble, using the abbreviation ‘‘GHG’’ expressed in tpy that is enforceable as a practical or more of GHG on a [CO2e] basis.’’ or ‘‘GHGs’’ to refer to the aggregate air matter and is established source-wide in accordance With respect to modified sources, we pollutant. with specific criteria. 40 CFR 52.21(aa)(2)(v). said that initially ‘‘the EPA intends to Sources may, but are not required to, apply for a In the existing regulations adopted in PAL, and the decision to issue a PAL to particular continue applying the PSD BACT the Tailoring Rule, this aggregate source is at the discretion of the permitting requirements to GHG if both of the pollutant is measured in terms of authority. 77 FR 41060. PALs offer an alternative method for determining major NSR applicability by ‘‘carbon dioxide equivalent’’ or ‘‘CO2e’’ 23 Next Steps and Preliminary Views on the allowing sources to make a change without emissions, which is a metric that allows Application of Clean Air Act (CAA) Permitting triggering PSD review, as long as the source can Programs to Greenhouse Gases Following the all the compounds comprising GHGs to maintain its overall emissions of the PAL pollutant Supreme Court’s Decision in UARG v. EPA, be evaluated on an equivalent basis below the PAL level. Therefore, PALs allow sources Memorandum from Janet G. McCabe, Acting despite the fact that the different to make the changes necessary to respond rapidly Assistant Administrator, Office of Air and to market conditions, while generally assuring the compounds have different heat-trapping Radiation, and Cynthia Giles, Assistant environment is protected from adverse impacts Administrator, Office of Enforcement and capacities. The Global Warming from the change. Id. Compliance Assurance, U.S. EPA, to Regional Potential (GWP) that has been 22 77 FR 41051, July 12, 2012. Administrators, p. 3, July 24, 2014.
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following circumstances are present: (1) the EPA take steps to rescind and/or necessary to implement the Amended The modification is otherwise subject to revise the applicable provisions of the Judgment, are not purely ministerial in PSD for a pollutant other than GHG; (2) CFR as expeditiously as practicable to nature because they amend, rather than the modification results in a GHG reflect the relief granted in the completely remove, text that remains emissions increase and a net GHG Amended Judgment and to consider pertinent to the PSD and title V emissions increase equal to or greater whether any further revisions are programs as a whole and their than 75,000 tpy CO2e and greater than appropriate in light of UARG and, if so, continued application to GHGs. As a zero on a mass basis.’’ Id. at 3. The EPA to undertake such revisions. result, we are addressing them in this based this initial approach on the Consistent with the Amended separate notice-and-comment 75,000 tpy CO2e applicability level that Judgment, on August 12, 2015, the EPA rulemaking to give the public an remained in the EPA’s regulations issued a final rule that removed from opportunity to comment on how the pending further action by the courts. the PSD and title V regulations entire EPA proposes to address those portions However, the EPA also explained that it sections and paragraphs that were of the Amended Judgment. would consider whether to promulgate readily severable from other provisions a de minimis level, which the EPA is IV. Revisions to the PSD and Title V in the PSD and title V regulations and GHG Permitting Regulations now proposing to do in this action. Id. specifically identified in the D.C. at 4. Circuit’s Amended Judgment. These A. What revisions to the PSD and title Because the UARG v. EPA decision removed provisions required a V GHG permitting regulations is the affirmed in part and reversed in part the stationary source to obtain a PSD permit EPA proposing with this action? earlier decision of the D.C. Circuit in solely on the basis of the source’s GHG Coalition for Responsible Regulation v. 1. Revisions to the PSD Regulations emissions and required the EPA to EPA, 684 F.3d 102 (D.C. Cir. 2012), the study and consider further phasing-in of In this action, the EPA is proposing to matter was returned to the D.C. Circuit GHG permitting requirements into the revise certain definitions in the PSD to determine whether particular parts of PSD and title V permitting programs at permitting regulations to fully the regulations adopted by the EPA in lower GHG emissions thresholds. 80 FR implement the Amended Judgment. The the Tailoring Rule should be struck 50199. Because of the nature of the D.C. first revision would add an exemption down (vacated) or left in place with Circuit’s Amended Judgment, these clause to the definitions of ‘‘major instructions that the EPA revise them revisions were ministerial in nature and stationary source’’ and ‘‘major (remanded). On April 10, 2015, the D.C. modification’’ to ensure that the PSD Circuit issued an Amended Judgment, exempt from notice-and-comment rulemaking procedures under the ‘‘good rules do not require a source to obtain which provided a more specific remedy a permit solely because the source emits reflecting the UARG v. EPA U.S. cause’’ exception of the APA. In that rulemaking, we also announced that we or has the potential to emit GHGs above Supreme Court decision. the major source thresholds or In the Amended Judgment, the D.C. intended to further revise the PSD and significance level. In other words, a new Circuit ordered that the EPA regulations title V regulations to fully implement stationary source that emits, or has the under review (including 40 CFR parts the Amended Judgment in a separate potential to emit, 100 or 250 tpy or 51.166(b)(48)(v) and 52.21(b)(49)(v)) be rulemaking, and the present action vacated to the extent they require a initiates that separate rulemaking. This more, as applicable, of any regulated stationary source to obtain a PSD permit action proposes revisions to several NSR pollutant except for GHGs would if GHGs are the only pollutant (i) that regulatory definitions in the PSD and be required to obtain a PSD permit the source emits or has the potential to title V permitting regulations, revisions before it is constructed. Furthermore, a emit above the applicable major source to the PSD GHG PALs and revisions to physical change or change in the thresholds, or (ii) for which there is a other provisions necessary to ensure method of operation at an existing major significant emissions increase from a that neither the PSD nor title V rules source that would result in a significant modification. The D.C. Circuit also require a source to obtain a permit increase in emissions of any regulated ordered that the regulations under solely because the source emits or has NSR pollutant except for GHGs and a review be vacated to the extent they the potential to emit GHGs above the significant net emission increase of that require (i) a stationary source to obtain applicable thresholds. These latter regulated NSR pollutant would be a a title V permit solely because the revisions include revisions to the title V major modification required to obtain a source emits or has the potential to emit regulations that were vacated in the permit. GHGs above the applicable major source Amended Judgment case—those that The EPA is proposing to establish a thresholds and (ii) the EPA to consider require a stationary source to obtain a freestanding definition of the term further phasing-in the GHG permitting title V permit solely because the source ‘‘greenhouse gases’’ in the PSD requirements at lower GHG emission emits or has the potential to emit GHGs regulations at 40 CFR parts thresholds (in particular 40 CFR part above the applicable major source 51.166(b)(31) and 52.21(b)(32) to 52.22 and 40 CFR parts 70.12 and thresholds. They also include revisions facilitate the application of the 71.13). The Court did not vacate the to state-specific GHG PSD or title V exemptions clauses described earlier. provisions implementing Step 1 of the permitting regulations that, in general, Previously, the definition of this Tailoring Rule (in particular, for the the EPA believes are no longer pollutant was located within the PSD program, 40 CFR parts necessary in light of the other proposed definition of the term ‘‘subject to 51.166(b)(48)(iv) and 52.21(b)(49)(iv)).24 revisions in this action and that the EPA regulation’’ and we are now proposing However, the D.C. Circuit ordered that considers no longer appropriate to the to simply move the language that extent that they might have the effect of defined GHGs in this context into an 24 Without these provisions in the definition of establishing federal permitting independent definition for the term ‘‘subject to regulation’’ at this time, any GHG requirements for sources that only emit ‘‘greenhouse gases.’’ This proposed emissions increase would require a newly or have the potential to emit GHGs definition of GHGs does not change the constructed major source, or a major modification meaning of the term; we are proposing at an existing facility, to undergo PSD BACT review above the major source thresholds. for GHGs. 40 CFR 51.166(b)(23)(ii); 40 CFR These additional revisions to the PSD to use the same language as in the 52.21(b)(23)(ii). and title V regulations, although existing regulations.
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In this action we are also proposing to 52.21(b)(49) that codify this Court decision.29 A PAL may be issued simplify the definition of ‘‘subject to interpretation of the term ‘‘subject to for this purpose if all requirements for regulation’’ in other ways. In the regulation’’ that is used elsewhere in the obtaining a GHG PAL are met. As a Tailoring Rule, the EPA placed the GHG PSD regulations. result of our proposed revisions, a GHG applicability thresholds in a new Finally, consistent with deleting most PAL would be established and function definition of the term ‘‘subject to of the remaining parts of the definition in this narrower context in much the regulation’’ in an effort to enable states of ‘‘subject to regulation,’’ we are same way as a PAL for any other with approved PSD programs to rapidly proposing to amend the definition of regulated NSR pollutant. The main apply the Tailoring Rule limitations ‘‘significant’’ to add the proposed value difference will be that a GHG PAL without necessarily having to revise for the GHG SER. With these revisions would not be issued on a mass basis, but state regulations. 75 FR 31580–81. The to the PSD regulations, GHG will only rather on a CO2e basis since the EPA intended to enable states to be subject to BACT review under the regulated pollutant GHGs is the immediately read rules that already PSD permitting requirements at 40 CFR aggregate of six individual gases contained the term ‘‘subject to parts 52.21(j) and 51.166(j) if the source calculated on a CO2e basis. Finally, all regulation’’ in a manner consistent with has been classified as a major stationary PALs must include enforceable the definition of this term adopted by source or a major modification for requirements for the monitoring system the EPA in the Tailoring Rule. Id. at another regulated NSR pollutant first to accurately determine plantwide 31581. However, after the Tailoring and there is a significant net emissions emissions of the PAL pollutant. As Rule, most states concluded that it was increase of the source’s GHGs emissions current monitoring systems do not still necessary to revise their regulations equal to or greater than the GHG SER measure tpy CO2e, we would also like to incorporate the limitations on PSD that is being proposed in this action. to clarify that permitting authorities can applicability reflected in the Tailoring 2. Revisions to the PSD PAL Regulations specify in each individual GHG PAL Rule. Also, experience has shown that permit, much as they already do for this mechanism for implementing the The EPA is proposing a number of GHG PSD permits, the type of mass- GHG applicability thresholds is revisions to the PSD PAL provisions at based monitoring to be carried out for confusing and cumbersome. Thus, the 40 CFR 52.21(aa) to address the UARG each individual gas and require the EPA is proposing to eliminate this decision and Amended Judgment. applicant to perform the applicable mechanism and revert to a more Because a PSD PAL permit is only CO2e calculations. traditional approach of placing the available to an existing major stationary 3. Revisions to State-Specific PSD value that determines applicability of source, and a source is no longer subject Regulations BACT within the definition of the term to PSD solely because of its emissions ‘‘significant.’’ This approach also of GHGs, we are proposing to revise the The EPA is also taking this enables the EPA to eliminate the PSD PAL provisions to remove the opportunity to propose to remove Tailoring Rule Step 1 thresholds in 40 ability for a source that would be elements in a specific SIP-approved CFR parts 51.166(b)(48)(iv) and ‘‘major’’ 27 only for GHGs to obtain a program that are no longer needed as a 52.21(b)(49)(iv) that were not vacated GHG PAL and the ability of a source result of the Amended Judgment. The but that nevertheless, as the U.S. establishing a GHG PAL to retain its EPA is proposing to remove the Supreme Court noted, lacked a de minor NSR status. We are proposing to provisions at 40 CFR 52.2305, which minimis rationale. make refinements to the PSD PAL establish the Federal Implementation The EPA thus is proposing to repeal provisions whereby an existing Plan (FIP) requirements for the issuance all parts of the definitions of ‘‘subject to ‘‘anyway source’’ could still apply for of PSD permits for GHG emissions in regulation’’ except for the first and obtain a GHG PAL, but only for the the state of Texas. paragraph, which simply served to limited purpose of relieving the source On November 10, 2014, the EPA codify our interpretation of the term from having to address the BACT approved the revisions to the Texas PSD ‘‘subject to regulation’’ that was requirement for GHGs when triggering program for GHG emissions which reflected in prior actions. 75 FR 31582. PSD for another NSR pollutant.28 The provided the state of Texas the authority Those prior actions are the following: EPA has previously observed that the to regulate GHGs in the Texas PSD (1) A Memorandum from Administrator PAL provisions may still have relevance program and to issue GHG PSD permits Stephen Johnson titled ‘‘EPA’s for this purpose after the U.S. Supreme to ‘‘anyway sources.’’ 79 FR 66626. Interpretation of Regulations that However, to avoid delays to some Determine Pollutants Covered by 27 Assuming GHGs could still be considered in permit applicants, we retained limited Federal Prevention of Significant defining a source as ‘‘major.’’ The EPA recognizes authority under the Texas GHG PSD FIP Deterioration (PSD) Permit Program’’ 25 they cannot be after the U.S. Supreme Court at 40 CFR part 52.2305 to issue GHG decision. If the proposed changes in this rule are and (2) An action titled Reconsideration enacted, no source will be considered major for PSD permits in certain circumstances. of Interpretation of Regulations That GHGs. We retained the authority to: (1) Issue Determine Pollutants Covered by Clean 28 We are not proposing similar revisions to 40 permits to those permit applicants who Air Act Permitting Programs.26 This CFR 51.166 because the June 29, 2012, final rule elected to continue their permit second action was subsequently that adopted the GHG PAL provisions under 40 CFR 52.21 did not adopt these changes into the existing application with the EPA by May 15, described as the ‘‘Timing Decision’’ in PAL provisions contained in 40 CFR 51.166. 77 FR 2014; (2) issue permits to those permit Court proceedings. The EPA is not 41051. However, nothing in that 2012 action was applicants who did not request a proposing to change or reconsider the intended to restrict states, tribes or local permitting transfer to the Texas Commission on interpretation of its regulations and the authorities from adopting changes into their SIP- approved PAL program to allow for the issuance of Environmental Quality prior to the date CAA reflected in these actions. Thus, PALs on a CO2e basis if they choose to do so. of final permit decision; and (3) we are retaining the first paragraph in Moreover, the revisions we are proposing in this complete the permit action for all GHG the definition ‘‘subject to regulation’’ at action do not preclude a state, local or tribal PSD permits issued by the EPA for 40 CFR parts 51.166(b)(48) and program from applying construction permitting requirements equivalent to the PSD GHG PAL which the time for filing an requirements for Step 2 sources under state law, 25 75 FR 80300, December 31, 2008. although such provisions are no longer approvable 29 79 FR 70095; 80 FR 14062; 80 FR 23245; 80 FR 26 75 FR 17004, April 2, 2010. parts of a PSD or title V program under federal law. 28901.
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administrative appeal had not expired 5. Revisions to State-Specific Title V revised to address these regulatory or all administrative and judicial Regulations revisions, see Section VII of this appeals processes had not been On December 30, 2010, we issued a preamble. completed by November 10, 2014. The final rule that narrowed the EPA’s B. What additional regulatory revisions EPA proposes to find that all three previous approval of state title V is the EPA proposing with this action? circumstances for limited authority to operating permit programs that apply issue GHG PSD permits in Texas have The EPA is also proposing to repeal (or may apply) to GHG-emitting sources provisions in its 40 CFR parts 60 now been satisfied; therefore, we no under 40 CFR part 70, and, in a few longer need to retain the authorities regulations that the EPA considered instances, under 40 CFR part 52. 75 FR advisable to ensure that the 75,000 tpy provided to us in 40 CFR part 52.2305 82254. For most states, title V programs CO2e applicability threshold for the and propose to remove that section. are federally-approved only under 40 For questions on whether federally GHG BACT requirement continued to CFR part 70, but, in some cases, states approved SIPs or TIP would need to be apply on an interim basis after GHGs have chosen to submit their title V revised to address the regulatory became regulated under section 111 of revisions in this proposal, see Section programs as part of their SIPs. The EPA the CAA. These provisions were VII of this preamble. has approved provisions related to the included in the Carbon Pollution operating permit program into the SIP as Emission Guidelines for Existing 4. Revisions to the Title V Regulations codified in 40 CFR part 52 for three Stationary Sources: Electric Generating The EPA is proposing to revise certain states that were addressed in the Units,30 the Standards of Performance definitions in the title V permitting December 2010 rule: Arizona (Pinal for GHG Emissions from New, Modified, regulations at 40 CFR parts 70 and 71 County Air Quality Control District), and Reconstructed Stationary Sources: to fully implement the Amended Minnesota, and Wisconsin. Electric Generating Units,31 and the Judgment. Specifically, we are In that December 2010 final rule, we Standards of Performance for Crude Oil proposing to revise the definition of narrowed our previous approval of and Natural Gas Facilities for which ‘‘major source’’ in 40 CFR parts 70.2 and certain state permitting thresholds for Construction, Modification or 71.2 to clarify that GHGs are no longer GHG emissions so that only sources that Reconstruction Commenced after considered in determining whether a equal or exceed the GHG thresholds September 18, 2015.32 stationary source is a major source and established in the Tailoring Rule would As we explained previously, under 40 thus subject to major source permitting be covered as major sources by the EPA- CFR parts 51.166(b)(49) and requirements under the title V program. approved programs in the affected 52.21(b)(50), we define a ‘‘regulated We are also proposing to remove states. For most of the affected states, NSR pollutant’’ to include, among other paragraphs from the definition of this was accomplished by amending our requirements, ‘‘any pollutant subject to ‘‘subject to regulation’’ to remove those approvals under 40 CFR part 70, a new source standard of performance provisions that incorporated the Appendix A. For Minnesota, and under CAA section 111’’ and ‘‘any Tailoring Rule CO2e applicability Wisconsin, which had title V pollutant that otherwise is subject to thresholds into the title V regulations. applicability provisions that were regulation under the Act.’’ This Those provisions are no longer federally approved under both 40 CFR definition first applied to GHGs in 2011 necessary or appropriate, in light of the part 70 and 40 CFR part 52, we under the fourth part of this definition proposed revisions to the definition of amended our title V program approval because this pollutant was then ‘‘major source’’ in 40 CFR parts 70.2 and in both 40 CFR part 70 and 40 CFR part ‘‘otherwise subject to regulation under 71.2 described immediately above. 52 to ensure that the scope of the the Act’’ in the LDVR. However, because Furthermore, we are proposing to move approved title V program was the EPA chose to include the Tailoring the definition of ‘‘GHGs’’ from the consistent. In Arizona (Pinal County Air Rule thresholds in the definition of the definition of ‘‘subject to regulation’’ to Quality Control District), we amended term ‘‘subject to regulation,’’ some its own definition under the title V our approval under 40 CFR part 52. In question arose as to whether those regulations at both 40 CFR parts 70.2 this proposal, however, we are thresholds would continue to apply and 71.2. By moving this definition, the proposing to remove those provisions after GHGs also became a regulated NSR EPA does not intend to make any from all the applicable state title V pollutant when this pollutant became material changes in how the air operating permit programs except for subject to a standard of performance pollutant GHGs is defined, but rather Arizona (Pinal County Air Quality under section 111. Thus, the EPA intends to clarify that the definition Control District), which we intend to adopted provisions in 40 CFR part 60 applies throughout the title V address in a separate action. For that made clear that promulgation of regulations and that it continues to Minnesota and Wisconsin, we are CAA section 111 requirements for GHGs include a description of CO2e and how proposing to remove the narrowing under these rules would not result in it is calculated. provisions under both 40 CFR parts 52 BACT applying to GHGs at an ‘‘anyway While the EPA is proposing to revise and 70 to ensure consistency. source’’ that increased GHGs by any its title V regulations so that they no We are proposing to remove those amount below 75,000 tpy CO2e. To longer require that a source obtain a title provisions from the applicable title V ensure this was clear, the final V permit solely because it emits or has programs because they no longer seem regulatory text for these rules said that the potential to emit GHGs above major necessary after the UARG decision, the ‘‘the pollutant that is subject to the source thresholds, the agency does not Amended Judgment, and the EPA’s standard promulgated under section 111 read the UARG decision or the actions to implement that decision and of the Act’’ shall be considered to be the Amended Judgment to affect other the Amended Judgment, since a source grounds on which a title V permit may would no longer be required to obtain 30 80 FR 64662, October 23, 2015. On February 9, be required or the applicable a title V permit solely because it emits 2016, the U.S. Supreme Court stayed this rule pending judicial review before the U.S. Court of requirements that must be addressed in or has the potential to emit GHGs above Appeals for the D.C. Circuit and any subsequent title V permits. The proposed revisions the major source threshold. proceedings in the U.S. Supreme Court. are not intended to change the existing For questions regarding whether title 31 80 FR 64510, October 23, 2015. title V requirements in that regard. V program approvals would need to be 32 81 FR 35823, June 3, 2016.
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pollutant that otherwise is ‘‘subject to minimis or one of administrative the application of de minimis principles regulation’’ under the Act as defined necessity’’ Id. at 361. De minimis to BACT. The Court said that a ‘‘de under the respective ‘‘subject to authority is not a mechanism to ‘‘depart minimis exception must be designed regulation’’ definitions under the PSD from the statute, but rather a tool to be with the specific administrative burdens and title V provisions. With the addition used in implementing the legislative and the specific statutory context in of a SER for GHGs, these 40 CFR part design’’ and cannot be used where there mind’’ and then specifically considered 60 provisions are no longer needed to are acknowledged benefits but the the BACT context. Id. at 405. The Court ensure that a BACT applicability agency concludes they ‘‘are exceeded by recognized that de minimis principles threshold remains applicable to GHGs the costs.’’ Id.34 could be used to address ‘‘severe after the regulation of GHGs under As the U.S. Supreme Court noted, the administrative burdens on the EPA, as section 111 of the Act. Thus, we are CAA does not specify how much of a well as severe economic burdens on the proposing to remove the provisions at given regulated pollutant a major source construction of new facilities.’’ 636 F.2d 40 CFR parts 60.5360a(b), 60.5515(b) must emit before it is subject to the at 405. A rational approach to the and 60.5705(b). BACT requirement for that pollutant. application of BACT, the Court 134 S.Ct. 2427 n. 1. The Act requires continued, would consider ‘‘the danger V. Establishment of a GHG SER application of BACT to ‘‘each pollutant posed by increases in’’ emissions and A. What is the legal basis for subject to regulation’’ under the Act but ‘‘the degree of administrative burden establishing a GHG SER? does not address whether the EPA has posed by enforcement at various de minimis threshold levels.’’ Id. In the UARG decision, the U.S. discretion not to apply the BACT requirement to pollutants emitted below At first, there may appear to be an Supreme Court observed that the EPA internal tension in Alabama Power may limit application of the BACT a particular level. CAA section 169(3). The EPA has previously recognized that between the language describing general requirement for GHGs to those parameters for the exercise of de situations where a source has the sources that trigger PSD can emit some pollutants at levels below which minimis exemption authority and the potential to emit ‘‘more than a de BACT discussion. The Court’s minimis amount of greenhouse gases.’’ application of the BACT requirement would be a pointless expenditure of recognition that a de minimis exemption 134 S.Ct. at 2449. The Court also cannot be based simply on a conclusion acknowledged the EPA’s past practice of effort. Accordingly, the EPA’s regulations specify that the BACT that a requirement’s costs outweigh its establishing de minimis levels for other benefits, 636 F.2d at 361, was paired pollutants that determine whether requirement need only be applied to pollutants that: (1) A new major source with explicit acknowledgement that a individual pollutants are subject to the de minimis threshold could be BACT requirement. Id. at 2435 n. 1. In has ‘‘the potential to emit in significant amounts’’ and (2) will increase by a ‘‘net ‘‘rationally designed to alleviate severe both of these parts of its opinion, the administrative burdens.’’ 636 F.2d at U.S. Supreme Court cited the D.C. significant’’ amount as a result of a major modification at an existing major 405. The Court also observed that a Circuit’s decision in Alabama Power Co. rational approach would consider the v. Costle.33 The D.C. Circuit’s opinion in source. 40 CFR parts 51.166(j)(2)–(3) and 52.21(j)(2)–(3). following factors: ‘‘the administrative that case provides the foundational legal burden with respect to each statutory principles upon which the EPA has After acknowledging these existing regulations, the U.S. Supreme Court context;’’ ‘‘whether the de minimis previously established the de minimis threshold should vary depending on the levels in the NSR program that are specifically recognized in UARG that the EPA could establish ‘‘an appropriate specific pollutant and the danger posed known as ‘‘significant emission rates.’’ by increases in its emissions;’’ and ‘‘the In light of the U.S. Supreme Court’s de minimis threshold below which BACT is not required.’’ 134 S.Ct. at degree of administrative burdens posed favorable citation of the Alabama Power by enforcement at various de minimis case, the EPA continues to look to this 2449. Inherent in this aspect of the UARG decision is a judgment by the threshold levels.’’ Id. While the degree case as providing the controlling legal of burden might be viewed as part of a principles for an agency to establish a U.S. Supreme Court that Congress has not been ‘‘extraordinarily rigid’’ with cost-benefit analysis, EPA believes it is de minimis exception to a statutory possible to harmonize these parts of the requirement. respect to application of the PSD BACT requirement to pollutants emitted in Court’s opinion by treating each of these Agencies have inherent authority ‘‘to elements as factors for the Agency to lower amounts. The U.S. Supreme Court overlook circumstances that in context consider in a rational approach to has now recognized, consistent with the may fairly be considered de minimis’’ determining a de minimis threshold. and need not ‘‘apply the literal terms of principles of Alabama Power, that the Considering all the relevant parts of a statute to mandate pointless PSD statutory scheme includes the the Alabama Power opinion, the EPA expenditures of effort.’’ Alabama Power, inherent authority for the EPA to believes that it need not focus solely on 636 F.2d at 360. ‘‘Unless Congress has overlook de minimis levels of pollutant the programmatic advantages of been extraordinarily rigid, there is likely emissions when applying the BACT regulation and disregard a basis for an implication of de minimis requirement in the PSD permitting implementation burdens when authority to provide an exemption when program. establishing a de minimis exception. the burdens of regulation yield a gain of However, the U.S. Supreme Court also Where the record shows that the trivial or no value.’’ Id. at 360–361. emphasized that the EPA must justify its burdens of regulation are high relative Determining when matters are truly de selection of a de minimis threshold ‘‘on to a small gain that is achievable by minimis depends on the particular proper grounds,’’ citing the discussion regulation, the EPA reads Alabama circumstances and the agency bears the at page 405 of Alabama Power. This part Power to allow an agency to consider burden of making the required showing. of the Alabama Power decision consists such gains to be de minimis if the Id. Thus, the de minimis authority is of two paragraphs expressly addressing Agency finds this appropriate after ‘‘tightly bounded by the need to show considering the statutory context, the 34 See also 44 FR 51937, September 5, 1979 (the that the situation is genuinely de EPA proposal to establish SERs stating that it would nature of pollutant, and the danger not be appropriate to base a SER on ‘‘a cost- caused by increases of that pollutant. 33 636 F.2d 323, D.C. Cir. 1979. effectiveness rationale’’). However, where the gains of regulation
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are greater, the EPA reads Alabama modification of an existing major source level of GHGs that the EPA may identify Power to preclude the agency from must result in a significant net as de minimis in the PSD program declining to regulate on the basis of a emissions increase of a regulated NSR context. Furthermore, in this proposed judgment that the costs simply exceed pollutant other than GHGs. If a rule, the EPA is considering the achievable benefits that further the modification triggers PSD on this basis, application of a de minimis level in a regulatory objectives. then the SER proposed in this rule will PSD program context that is narrower In sum, therefore, to justify a de apply to determine whether the PSD than the one the EPA was addressing in minimis exemption by regulation, an permit for that modification must the Tailoring Rule. The SER the EPA agency must show that the benefits of contain a BACT limit for GHGs. But the proposes in this rule will apply only to regulating an activity below the level set SER proposed in this rule will not determine whether BACT applies to forth in the exemption are trivial or of determine whether a modification at an GHGs and not to determine whether a no value. The supporting analysis must existing major source requires a PSD source is required to obtain a PSD consider the regulatory context, permit in the first instance. permit. including the nature of the pollutant This contrasts with the 75,000 tpy In addition, because there is no and the dangers caused by increases in CO2e value the EPA identified as a NAAQS for GHGs, the SER for GHGs that pollutant, the nature and purposes ‘‘significance level’’ in parts of the proposed in this rule will not determine of the regulatory program, the Tailoring Rule. During Step 2 of the whether a PSD permit application is administrative and implementation Tailoring Rule phase-in, this value was required to include an ambient air burdens of, and the gain achieved from, used to determine whether a PSD permit quality analysis for this pollutants. 40 regulating the activities at or below a was required based solely on an CFR parts 51.166(m)(1)(i) and certain level. Based on that analysis, the increase in GHG emissions resulting 52.21(m)(1)(i). In the absence of a agency must make a reasoned judgment from a modification at an existing major NAAQS or PSD increment for GHGs, a whether, in light of the regulatory source that did not increase any other permit applicant need not make an air context, the gains from regulating an pollutants above the significance levels. quality demonstration for GHGs, as activity below the exemption level can In this context, the EPA said that if the required for other pollutants under fairly be characterized as being trivial or agency were to establish a de minimis section 165(a)(3) of the Act and 40 CFR of no value. In developing the SER for level for GHGs, ‘‘that amount could be parts 51.166(k) and 52.21(k) of the GHGs proposed in this action, the EPA 35 below—perhaps even well below—the EPA’s regulations. has considered the factors laid out by Accordingly, in light of the Court the Court in Alabama Power. ‘major emitting facility’ thresholds established in this rulemaking on the direction that an agency consider the B. What is the regulatory context for the grounds of ‘administrative necessity’ particular context for a de minimis de minimis exception proposed in this and other doctrines.’’ 75 FR 31560. exception, the EPA has based the rule? Paraphrasing this statement, the U.S. proposed SER for GHGs on an Supreme Court noted that the ‘‘EPA evaluation of the benefits and burdens The Alabama Power opinion said that of applying the BACT requirement to a ‘‘de minimis exception must be stated . . . that a truly de minimis level might be ‘well below’ 75,000 tons per GHGs when an ‘‘anyway source’’ emits designed with . . . the specific statutory this pollutant at various levels. Under context in mind.’’ Id. at 405. The SER year [CO2e].’’ 134 S. Ct at 2427 n.3. At section 169(3) of the CAA, BACT is an for GHGs that the EPA is proposing in the time of the Tailoring Rule, the EPA emissions limitation based on ‘‘the this rule will apply only in the read the definition of ‘‘major emitting maximum degree of reduction . . . particular context of determining facility’’ in section 169(1) of the CAA to which the permitting authority . . . whether the BACT requirement applies require that the agency apply the 100 or determines is achievable’’ through to GHG emissions from a new source or 250 tpy major source threshold to all application of pollutant control modification that requires a PSD permit regulated pollutants, including GHGs. In technology. CAA section 169(3). Thus, based on emission of pollutants other that light, the EPA believed it would be in assessing the value of regulating GHG than GHGs. difficult for the agency to justify a value Because GHGs are a regulated NSR substantially greater than the statutory emissions under the PSD BACT pollutant under the applicable major source thresholds as a de minimis requirement at sources emitting GHGs at definition, the BACT provisions in 40 or trivial level of emissions. Thus, the various emissions levels, the EPA has CFR parts 51.166(j) and 52.21(j) apply to EPA said that a de minimis level for focused on the degree of emission GHGs when an ‘‘anyway source’’ GHGs could perhaps be ‘‘well below’’ reduction that would be expected to be achieved at individual sources emitting triggers the obligation to obtain a PSD 75,000 tpy CO2e based on its permit. Under the specific terms of 40 understanding at the time that the EPA’s GHGs below the levels under CFR parts 51.166(j)(2)–(3) and de minimis exception authority was consideration. Furthermore, since the 52.21(j)(2)–(3) of the EPA’s regulations, constrained by the Congressional regulation the EPA is proposing will the SER adopted in this rule will determination that it was worth apply across the PSD program as a determine whether the BACT regulating any source emitting more whole, the EPA has also considered the requirement applies to GHGs. than 100 or 250 tpy of a regulated potential for GHG emissions reduction, Because of the U.S. Supreme Court’s pollutant. The U.S. Supreme Court has principally through the characterization decision, the requirement to obtain a since clarified that the EPA cannot of affected sources and units, that one PSD permit does not apply to a source apply the 100 or 250 tpy levels to GHGs, would expect to achieve at ‘‘anyway that emits only GHGs in major amounts. or even consider the pollutant GHGs in sources’’ emitting (or modifications Likewise, the modification of an defining a major source (or modification increasing) GHGs below prospective de existing major source cannot trigger the thereof) that requires a PSD permit. The minimis levels as compared in relation requirement to obtain a PSD permit Court’s reasoning suggests that Congress to the potential for GHG emissions based solely on a significant increase in has not determined that 100 or 250 tpy 35 ‘‘PSD and Title V Permitting Guidance for the amount of GHGs. In order to qualify is a major amount of GHGs. Thus, the Greenhouse Gases,’’ EPA, Office of Air Quality as a major modification under the EPA no longer views the 100 and 250 Planning and Standards, Research Triangle Park, revisions proposed in this rule, a tpy thresholds as a constraint on the NC, EPA–457/B–11–001, pp. 47–48, March 2011.
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reductions expected from the requirement to obtain a PSD permit. The Within this framework, the de population of sources that would be proposed SER is not a level of GHGs minimis levels finalized for each subject to the BACT requirement below which the EPA has concluded pollutant in the 1980 PSD Rule were because they emit GHGs above that there is a de minimis impact on the based on consideration of both level. global climate. Rather, the de minimis environmental impacts and While the dangers caused by increases level proposed in this rule reflects only administrative burden. The in GHGs are relevant under the factors a level of GHG emissions from an Administrator chose to specify de discussed in the preceding section, ‘‘anyway source’’ below which the EPA minimis level cutoffs in terms of since the SER for GHGs will not be used is proposing to find that there would be emissions rate (i.e., tpy). The derivation to determine what sources must apply trivial or no value in applying the BACT of the de minimis levels are described for a PSD permit or whether an ambient requirement to GHGs in the context of in preambles published in the Federal air quality analysis must be conducted preparing a PSD permit. Register and two technical support for GHG, the EPA does not believe it is documents to the 1980 rulemaking.37 In necessary for the Agency to attempt to C. Historical Approaches to Establishing a De Minimis Level in the PSD Program setting the de minimis levels for each identify the specific nature or degree of pollutant, the EPA relied on existing environmental impact predicted from The EPA has previously established ‘‘data on sources permitted under the various levels of GHG emissions from de minimis levels for several pollutants PSD program’’ to predict the ‘‘anyway sources’’ that are required to in the PSD program that are reflected in environmental/air quality impacts obtain a PSD permit. Likewise, EPA the definition of ‘‘significant’’ in associated with regulating emissions does not believe it is necessary for the existing PSD regulations. 40 CFR parts above that level, and a measure of the Agency to try to distinguish specific 51.166(b)(23)(i) and 52.21(b)(23)(i). In number of PSD permitting actions that environmental impacts at a given level this section of the preamble, we discuss might result from a particular de from those expected at other levels. As the approaches the EPA has previously minimis level. 45 FR 52676, 52707. the EPA has noted, climate change used to establish de minimis emissions The EPA assessed the air quality modeling and evaluations of risks and levels. We then examine the extent to impacts of GHG emissions is typically impacts differently for criteria and non- which these approaches can be 38 conducted for changes in emissions that employed to support the development criteria pollutants. For criteria are orders of magnitude larger than the of a de minimis emissions level for pollutants, where there was extensive emissions from individual projects that GHGs. The EPA’s judgment at this time health and welfare documentation based might be analyzed in PSD permit is that the approaches we have on ambient concentration data used in reviews.36 In the context of PSD previously used to establish SERs are setting NAAQS, the EPA based the de permitting, the EPA is continuing to use not workable for the establishment of a minimis emission levels on ambient air the level of GHG emissions from a GHG SER due the unique nature of GHG impacts. For non-criteria pollutants, for stationary source as the more credible emissions. which no ambient air quality standards existed, the EPA based the de minimis and appropriate means for assessing the The EPA first established SERs in emission levels on emission rates potential environmental impact of such 1980 as part of the revised PSD embodied in NSPS and NESHAP, which a source. This aligns with the regulations that the EPA completed are national emission standards Congressional direction in the BACT following the Alabama Power decision. developed under CAA 111 and CAA provision to achieve the maximum 45 FR 52676 (1980 PSD Rule). The 1980 112, respectively. The bases for the de degree of emissions reduction of each PSD Rule included the current approach minimis emissions rates are summarized pollutant. Congress established a for defining ‘‘major’’ modifications, below. separate requirement in the PSD based on the use of SERs to define program to demonstrate that the air ‘‘significant’’ increases in emissions. As For the criteria pollutants (all except quality impact of a source does not discussed previously, a modification carbon monoxide (CO), as discussed cause a violation of air quality must be ‘‘major’’ to trigger the PSD later), the final de minimis levels were standards, but that requirement is not permitting requirement. The EPA based on 2 to 4 percent of the primary applicable to GHGs at this time. determined the level of these SERs NAAQS for the pollutant. 45 FR 52676, Considering this context and following the principles regarding de 52708. To develop these SERs in tpy, Congressional intent that BACT reflect a minimis exceptions that the Court the EPA first established a range of ‘‘degree of reduction’’ that is achievable, provided in Alabama Power. potential air quality ‘‘design values’’ 39 the SER that the EPA proposes to In the preamble to the 1980 PSD Rule, representing percentages of the then- establish for GHGs represents a level of the EPA identified the primary current primary NAAQS and, for GHG emissions below which objectives the Agency sought to meet in particulate matter (PM) and sulfur application of the BACT requirement selecting de minimis values: (1) Provide dioxide (SO2), percentages of the Class would be expected to yield a ‘‘degree of effective Class I area protection, (2) emissions reduction’’ that has trivial or guard against excessive un-reviewed 37 One report is titled ‘‘Impact of Proposed and no value. In this proposed rule, the consumption of the Class II or III PSD Alternative De Minimis Levels for Criteria EPA’s analysis shows that the proposed Pollutants,’’ EPA–450/2–80–072; the other report is increments, and (3) assure meaningful a staff paper titled ‘‘Approach to Developing De SER is de minimis only as applied in the permit reviews. 45 FR 52676, 52706. Minimis Levels for Noncriteria Air Pollutants.’’ particular context of determining ‘‘Meaningful’’ in this context meant that Both papers have a June 1980 publication date. whether application of the BACT there would be a possibility of obtaining 38 ‘‘Criteria pollutants’’ are those pollutants listed by the EPA under CAA section 108 for study and requirement to GHGs would be of value useful air quality information or in reducing GHG emissions from subsequent development of NAAQS under CAA obtaining greater emission reductions as section 109. ‘‘Non-criteria’’ pollutants are other ‘‘anyway sources’’ that trigger the a result of BACT analysis than would be pollutants that are subject to regulation under the expected from otherwise-applicable Act. 36 ‘‘PSD and Title V Permitting Guidance for 39 These ‘‘design values’’ are to be distinguished Greenhouse Gases,’’ EPA, Office of Air Quality state permit or NSPS/national emission from the design values calculated from ambient air Planning and Standards, Research Triangle Park, standards for hazardous air pollutants quality data as part of determining compliance with NC, EPA–457/B–11–001, p. 48, March 2011. (NESHAP) processing. Id. certain of the NAAQS.
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II PSD increments.40 These design NSPS containing a GHG emissions limit which, under any reasonable viewpoint, values were then converted to annual that EPA had finalized as of the date of there would be trivial value in emissions rates in accordance with the our analysis 41 was the rule that limits conducting a GHG BACT review. This EPA modeling procedures using data on CO2 emissions from new electric would impose unreasonable sources permitted under the PSD generating units (EGUs).42 Based on the administrative burdens for program. 45 FR 52676, 52707. Since at modeled emissions profile for the EGU implementation and enforcement. As that time there was only an annual NSPS emissions limit, the ‘‘20 percent discussed previously, after the U.S. NAAQS for nitrogen dioxide (NO2), the of NSPS’’ approach would result in a de Supreme Court’s UARG decision, PSD EPA elected to set the de minimis minimis value of approximately 320,000 review is limited to only ‘‘anyway emissions rate for nitrogen oxides (NOX) tpy CO2e when applied to the standard sources,’’ where emissions of a at the level corresponding to 2 percent for a 600 megawatt natural gas regulated pollutant other than GHGs of the annual NAAQS. Id. For CO, the combined cycle EGU.43 For comparison triggers major stationary source or major emissions rates corresponding to all the purposes, this level of GHG emissions is modification status under PSD. Thus, evaluated percentages of the NAAQS four times greater than the current the GHG BACT requirement will only were in excess of the major stationary interim GHG BACT applicability level apply to such sources. In this context, source threshold of 100 tpy that applies of 75,000 tpy CO2e. As described later the term ‘‘small unit’’ is a relative term to many source categories, so the EPA in Section V.D.1 of this preamble, the because the smallest units or set the SER at 100 tpy. Id. The pollutant 75,000 tpy CO2e permitting level has modifications will be excluded from volatile organic compounds (VOC) is been successfully implemented and is PSD entirely because they do not emit not a criteria pollutant in itself but was, achieving meaningful GHG emission or increase any pollutant in major and is, designated as a precursor to the reductions through BACT review at amounts. Cases where a new major formation of the criteria pollutant ozone larger, industrial GHG emission sources stationary source or a major in the atmosphere. The EPA set the SER and units, some of which would not modification involves combustion units for VOC at the same level as that for have GHG emission increases large with emissions of other pollutants large NOX in recognition of the link between enough to be subject to GHG BACT enough to trigger PSD generally would VOC and NOX emissions in the review at a 320,000 tpy CO2e permitting be associated with large CO2 emission formation of ozone. Id. level. increases as well, and thus would focus For other non-criteria pollutants, the In addition, using the ‘‘model plant’’ GHG BACT review on the larger de minimis emissions rates were approach for establishing a de minimis emitting units. However, in cases where generally based on 20 percent of the level for GHGs is problematic because major stationary source or major NSPS or 10 percent of the NESHAP that GHGs are emitted from such a diverse modification status is triggered by non- imposed limits on their emissions. For group of sources, in terms of both type combustion emissions units, such as example, for sulfuric acid, the SER in and size. Even if NSPS that regulated large VOC emitters, there may be tpy was determined based on 20 percent GHG emissions for source categories collateral GHG emission increases that of a model sulfuric acid production other than EGUs had been available for are very small. In addition, CO2 is plant’s annual emissions using the analysis, the diversity of sources and the emitted in much greater quantities than NSPS-based emission standard. A differences in GHG emissions contribute CO; the CO2 emission factor for natural model plant is considered a typical to eliminate the viability of the ‘‘model gas boilers is 1,400 times that of CO, plant affected by the NSPS. 45 FR plant’’ approach for setting a SER. The meaning that a boiler triggering PSD for 52676, 52709. model plant approach worked for other emissions of 100 tpy CO would emit 44 Since no NAAQS has been set for non-criteria pollutants because there 140,000 tpy CO2. Very small GHGs, the EPA cannot use the approach was a much narrower set of industrial combustion units can emit 100 tpy CO2, based on a percentage of the NAAQS to source categories from which the such as small stationary internal identify a de minimis level for GHGs. In pollutant of interest was emitted in combustion (IC) engines, water heaters, addition, current climate modeling tools quantities of any concern (e.g., fluoride and heating, ventilation and air are not capable of isolating the precise emissions from aluminum production conditioning units. Thus, a 100 tpy GHG correlations between singular, plants). SER may trigger BACT review for very incremental facility-specific GHG Following the approach used for CO small units or modifications. However, emissions changes, ambient CO2 (i.e., applying the major source as will be discussed later in this concentrations, and climate impacts. threshold of 100 tpy as a SER level) preamble, the EPA believes applying the Thus, because of the absence of a would result in a GHG threshold that BACT requirement to such small NAAQS for GHGs and the inherent would exclude only very small combustion units would provide uncertainties and limitations in emissions units. However, it may still emission reductions gains of trivial or modeling climate-related impacts from require GHG BACT for what still can be no value. incremental project-level GHG emission considered relatively small units in In addition, it should be noted that increases, the EPA’s judgment at this terms of GHG emission increases for the SER for CO was set at 100 tpy in time is that an ambient-air quality deference to the statutory definition of impact-based approach is not workable 41 EPA has since completed other standards that ‘‘major stationary source’’ that applies to for setting a GHG SER. contain GHG emission limits, but these were not many source categories, in spite of the Regarding the historical ‘‘20 percent available at the time of our analysis. 42 Final Rulemaking titled ‘‘Standards of fact that the emissions rates of NSPS’’ approach for non-criteria Performance for Greenhouse Gas Emissions from corresponding to all the percentages of pollutants, we believe that this would New Stationary Sources: Electric Utility Generating the NAAQS that were evaluated as result in a GHG SER that would be Units’’ (80 FR 64510, October 23, 2015). potential de minimis levels were in inconsistent with the de minimis 43 ‘‘Regulatory Impact Analysis for the Final Standards of Performance for Greenhouse Gas excess of 100 tpy. As a criteria principles described earlier. The only Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating 44 U.S. EPA, Compilation of Air Pollutant 40 At the time, increments had been established Units.’’ Chapter 5, Table 5–1. EPA–452/R–15–005, Emission Factors, Document No. AP–42, Volume I, only for PM, which at that time was expressed as August 2015, (http://www2.epa.gov/sites/ Chapter 1, Section 1.4 ‘‘Natural Gas Combustion,’’ total suspended particulate (TSP), and SO2. production/files/2015-08/documents/cps-ria.pdf. Tables 1.4.1 and 1.4.2, July 1998.
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pollutant, CO is clearly covered by this informed our decision on the proposed Our review of this permit information statutory major source definition. GHG SER. produced a number of important However, the U.S. Supreme Court made Under the first category of data findings. First, we found that, using a clear in UARG that the major source review, we examined existing PSD 75,000 tpy CO2e applicability level, levels are not applicable to GHG permitting information to determine the BACT review for GHGs was triggered for emissions. Thus, for the reasons types and size of GHG emission units the largest sources of GHGs from a discussed earlier, setting a SER for that are likely to be part of PSD national perspective. This was GHGs need not be limited by the major ‘‘anyway sources.’’ We looked at two evidenced by the fact that the source source thresholds in the same manner sources of permitting information for categories represented in the ‘‘anyway that the EPA viewed it as a limitation this review. First, we looked at GHG sources’’ with PSD permits addressing for CO. permitting information from the EPA GHGs correlated very well with the Regional offices and states as part of the largest GHG-emitting source categories D. What is the technical basis for the EPA’s effort under the phase-in process identified through the EPA’s GHG proposed GHG SER? established in the Tailoring Rule to Reporting Program (GHGRP).46 The 1. Summary of Technical Support collect information on actual permits GHGRP emissions reports are submitted Information issued that included GHG BACT limits. by stationary sources to the EPA on a yearly basis. Almost all of the PSD In this section, we summarize the key This information provided actual, permits since 2011 that contained GHG findings from our data reviews and how historical information on the type of BACT limits were issued to sources in they support our proposed GHG SER emissions units undergoing GHG BACT categories that collectively represent value. Following this summary, review at a 75,000 tpy CO2e permitting over 92 percent of the 2013 reported Sections V.D.2 to V.D.5 of this preamble applicability level. This was the emissions under the GHGRP. These provide more detailed information on effective applicability level for determining whether GHG BACT review GHGRP categories include power plants each of the individual reviews and (66 percent of GHGRP emissions for analyses, the findings from each, and applied to ‘‘anyway sources’’ that were otherwise subject to PSD permitting 2013), petroleum and natural gas references to applicable supporting systems (7 percent), petroleum documents. Section V.E of this preamble based on conventional (non-GHG) pollutants under Step 1 of the Tailoring refineries (5.6 percent), organic and then presents our proposed GHG SER, inorganic chemicals manufacturing (5.5 an overall summary of our findings that Rule. It is also the current effective applicability level for determining if percent), minerals production (3.5 support our propose GHG SER level, percent), metals production (3.4 and a request for comments. GHG BACT review applies to ‘‘anyway 45 percent) and pulp and paper It is important to note that no single sources.’’ The second data source we looked at as part of this permitting manufacturing facilities (1.2 percent). review or analysis by itself constitutes The percentages provided above reflect the basis for the proposed GHG SER review was information from the EPA’s Reasonably Available Control the portion of the total nationally- value of 75,000 tpy CO2e. Instead, we reported GHG emissions, on a CO e based our proposed GHG SER on the Technology (RACT)/BACT/Lowest 2 Achievable Emission Rate (LAER) basis, emitted from facilities in the collective findings from these technical particular source category. The reviews, some quantitative in nature Clearinghouse (RBLC). The RBLC is a voluntary, national reporting database distribution of ‘‘anyway source’’ permits and some qualitative, that sought to containing a GHG BACT limit was evaluate the potential coverage of GHG containing PSD permit information, including permits for which no GHG similar: Power plants made up the sources, and the opportunities for largest percentage (47 percent) followed achieving meaningful GHG emissions BACT review was conducted after GHGs became regulated in 2011. We reviewed by the chemical production sector (20 reductions from the BACT review as percent), the oil and gas sector (10 part of projects at ‘‘anyway sources’’ the RBLC data to further characterize PSD permits in regards to potential percent), metals production (8 percent), under the PSD permitting program. refineries (6 percent), minerals Information obtained from the GHG-emitting sources and to specifically identify the likelihood of production (6 percent) and the pulp and following four categories of data reviews paper industry (3 percent). These same new PSD ‘‘anyway sources’’ emitting (or supports the proposed GHG SER level: categories also contributed over 92 a modified ‘‘anyway source’’ increasing) (1) A review of recent PSD permitting percent of the GHG emissions, based on GHG emissions in an amount less than information for ‘‘anyway sources,’’ CO e, as reported under the EPA’s 75,000 tpy CO e. Such a source would 2 including those subject to GHG BACT 2 GHGRP.47 review since GHGs became subject to not have been subject to GHG BACT This correlation between source regulation in 2011; (2) a calculation of review under Step 1 of the Tailoring categories subject to the GHG BACT the equivalent GHG emissions Rule. Because all of this PSD permitting requirement and the source categories information was from a period when corresponding to a 40 tpy NOX SER contributing the most reported GHG level for different combustion unit types 75,000 tpy CO2e was used as the emissions confirms that at the current effective BACT applicability level for that could be expected to be part of applicability level of 75,000 tpy CO2e, ‘‘anyway sources;’’ (3) an analysis of GHGs, this value serves as a key the categories of sources contributing non-combustion related GHG source reference point throughout each part of the most to national stationary source category emissions data; and (4) a our analysis. GHG emissions are included in the review of control strategies that have population of sources that were subject been or would likely be applied for GHG 45 Next Steps and Preliminary Views on the to the BACT requirement for GHGs. We Application of Clean Air Act (CAA) Permitting BACT reviews. In addition, the EPA Programs to Greenhouse Gases Following the did not see any prominent, high-ranking considered the burdens of applying the Supreme Court’s Decision in UARG v. EPA, GHG BACT requirement to sources Memorandum from Janet G. McCabe, Acting 46 ‘‘A Summary Analysis of the GHG Permitting emitting (or modifications increasing) Assistant Administrator, Office of Air and Experience between 2011 and 2014,’’ prepared by GHGs in relatively small amounts. The Radiation, and Cynthia Giles, Assistant EPA Staff, March 2015. Administrator, Office of Enforcement and 47 2013 GHGRP Overview Report, http:// following paragraphs summarize the key Compliance Assurance, U.S. EPA, to Regional www.epa.gov/sites/production/files/2015-07/ findings from each of these reviews that Administrators, p. 3, July 24, 2014. documents/ghgrp-overview-2013.pdf.
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GHG reporting source categories, in results from fossil fuel-fired combustion represent a complete dataset of PSD terms of their national GHG emissions units.50 permits issued nationally, we believe contributions, that were not included in The fact that combustion units that this relatively small percentage of the ‘‘anyway sources’’ that obtained PSD dominate the reported GHG emissions ‘‘anyway source’’ permits that we permits with GHG BACT limits at the for industrial stationary sources and are identified in the RBLC dataset reflects 75,000 tpy CO2e level. This is one to date the most prevalent units the unlikeliness of a significant number consideration in evaluating whether triggering the requirement to obtain a of ‘‘anyway source’’ PSD permits there is value in applying BACT to PSD permit at these same types of requiring GHG BACT review below a GHGs at sources emitting (or industrial sources is another important 75,000 tpy CO2e SER level. modifications increasing) this pollutant consideration in our development of a Given the nature and number of these GHG SER. The EPA has no reason to permits that we identified, we would below the 75,000 tpy CO e level. Other 2 believe that economic conditions or not expect to add many additional GHG parts of the EPA’s analysis show that the other factors will dramatically alter the BACT reviews nationwide at a GHG SER potential for achieving meaningful GHG nature of industrial activity triggering level below 75,000 tpy CO2e. In reductions from BACT review is highest PSD permitting in the future. Thus, we addition, any additional BACT reviews at the GHG reporting source categories expect that new and modified would likely only be for modifications that are responsible for most of the combustion units of a similar profile of existing major sources. The past national GHG emissions. will continue to make up most of the permitting information shows that any A second key finding from our review potential ‘‘anyway sources’’ and wholly-new ‘‘greenfield facilities’’ of past permitting actions was that the modifications requiring a PSD permit, would be expected to trigger the PSD emissions from large, fossil-fueled regardless of the GHG SER level that BACT requirement at GHG SER level of combustion units were generally the applies to determine whether BACT 75,000 tpy CO2e. Any new major principle cause for ‘‘anyway sources’’ applies to GHGs at such sources stationary source that emits pollutants requiring PSD permits based on A third finding, resulting from our other than GHGs above the major source emissions of pollutants other than review of the RBLC permitting thresholds would be expected to emit GHGs. Across all industry categories, we information, was that very few ‘‘anyway GHGs in amounts of at least 75,000 tpy found that ‘‘anyway sources’’ have been sources’’ obtaining permits experienced CO2e or more. Thus, our technical triggering PSD primarily because of the GHG emission increases less than analysis of past PSD permitting activity addition or modification of combustion 75,000 tpy CO2e. From the RBLC indicates that GHG SER values below units. Most of these projects involved dataset, we identified 20 PSD permits 75,000 tpy CO2e are only potentially meaningful for modification projects some combination of turbines, boilers, issued to ‘‘anyway sources’’ between 2011 and 2014 that included permitted that trigger PSD at existing major process heaters/furnaces, and stationary combustion units that did not contain sources. Modification projects may IC engines that were principally fired BACT limits for GHGs. All of these include both additions of new emissions with either diesel fuel or natural or permits authorized modifications of an units at existing facilities and physical process gas, with smaller numbers of existing major source, and typically changes to existing emissions units that biomass-fueled units. We found that included some type of smaller, ancillary result in increases in emissions. even for a specific sector such as the oil combustion units, such as a flare, an IC The last key finding from our review and gas industry, where there are a engine or process heater. It is possible of PSD permit information was that variety of fugitive emission sources, that each of the projects authorized by applying BACT to GHGs at the 75,000 combustion emissions still dominate the these permits increased GHG emissions tpy CO2e permitting level has been emission profile and are the primary in an amount less than 75,000 tpy CO2e administratively feasible for both driver of PSD applicability for new (but greater than zero tpy). We use the sources and permitting authorities over construction and major modification term ‘‘possible’’ because our analysis is the 4 years it has been in place. The projects. based on emissions unit information EPA’s analysis showed effective and This finding that combustion units available for the permit from the RBLC timely implementation of the BACT dominate the population of PSD permits database, or from individual permit requirement for GHGs. A knowledge that contain GHG BACT limits to date documents in cases where those were base on BACT review and design for is also consistent with the general available. The unit types and/or fuel GHGs at source categories and units composition of the sources in the used suggest the presence of GHG triggering the BACT requirement at the national GHG emissions inventory. emission sources, but without a full site- 75,000 tpy CO2e level has also been developed over this permitting period Nationally, CO2 is the GHG emitted in specific PSD applicability determination prepared specifically for GHGs that will facilitate future permit reviews. the largest quantities from stationary Based on the finding, supported by sources.48 The 2.9 billion metric tons of (accounting for all contemporaneous increases and decreases of GHG our review of past PSD permit actions, CO2 emissions reported by stationary that construction or modification of sources under the EPA’s GHGRP for the emissions), these occurrences should only be considered possible instances combustion units is the dominant form year 2013 represent 91.4 percent of the of activity that triggers the requirement total reported GHGs, in terms of percent where there may have been GHG emission increases. These 20 permits to obtain a PSD permit, our second of total CO2e emissions, from reporting category of data review involved stationary sources in 2013.49 Of the represent 5 percent out of a total of about 400 PSD permits in the RBLC identifying the specific level of reported 2.9 billion metric tons of CO2 increased GHG emissions resulting from emissions, approximately 90 percent dataset occurring over a 4-year period. Although the RBLC dataset is based on the construction or modification of voluntary reporting and, due to combustion units most likely to trigger 48 2013 GHGRP Overview Report, http:// incomplete participation, does not PSD in the future. As discussed earlier, www.epa.gov/sites/production/files/2015-07/ the EPA projects that GHG SER values documents/ghgrp-overview-2013.pdf. 49 2013 GHGRP Overview Report, http:// 50 2013 GHGRP Reporting Dataset, http:// below 75,000 CO2e would only be www.epa.gov/sites/production/files/2015-07/ www.epa.gov/ghgreporting/ghg-reporting-program- meaningful for modifications of existing documents/ghgrp-overview-2013.pdf. data-sets. major sources that trigger PSD review.
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Thus, this portion of our analysis did permitting review showed that most of the EPA’s GHGRP, we identified and not involve wholly new sources, but the IC engines addressed in ‘‘anyway evaluated emissions from GHG-emitting focused instead on projects involving source’’ PSD permits are present for one processes and units associated with the addition of new emissions units at of the following two reasons: (1) As non-combustion related GHG source an existing major source. Since GHG associated equipment (e.g., emergency categories relative to different GHG BACT review can only apply to a backup generator or fire pump engine) emission threshold levels. modification in cases where a pollutant when the source is adding a large One main finding from this evaluation other than GHGs is increased in combustion unit (such as a turbine or was that a high percentage of GHG significant amounts and is thus subject boiler) that is principally responsible for emissions from non-combustion units or to BACT review for that pollutant, we triggering the requirement to obtain a processes triggering PSD would be used the existing PSD NOX SER value of permit; or (2) in multiple-unit covered by the BACT requirement at a 40 tpy to calculate an equivalent level configuration generator sets (e.g., 10 or level of 75,000 tpy CO2e on a PTE basis. of increase in GHG emissions that we more large IC engines linked together for We found that at a 75,000 tpy CO2e PTE- would expect to be associated with the electricity production). Also, in based emission threshold level, non- combustion unit types most likely to be practice, there is a low likelihood that combustion related units and processes part of future modification projects that a PSD project involving the addition of responsible for approximately 89 trigger the requirement to obtain a PSD a single unit, of any type, will just percent of the GHG emissions, on a permit. Using this approach, the GHG exceed the 40 tpy NOX SER level CO2e basis, all the non-combustion equivalency results simply provide an because, in such cases, the permit ‘‘anyway source’’ categories included in approximate measure of the theoretical applicant very often accepts PTE our analysis would be captured, and minimum level of GHG emissions emission limits to avoid triggering PSD thus conceivably subject to GHG BACT increase that could be associated with a if the project’s NOX emission increase is review if the GHG SER was set at a project that adds a particular type of close to the NOX SER level. 75,000 tpy CO2e level. A construction combustion unit that increases NOX by Therefore, while our equivalency project at a municipal waste landfill, for just more than the NOX SER level of 40 analysis resulted in possible theoretical example, can trigger PSD applicability if tpy. We then examined this equivalency occurrences of ‘‘anyway source’’ its increased emissions exceed the PSD level in relation to both the findings projects involving combustion units that SER level of 50 tpy for non-methane from our first technical review (the past may have emissions less than 75,000 tpy organic compounds (NMOC), the actual permitting actions) and our CO2e, we found very few actual PSD- regulated NSR pollutant most fourth technical review, which triggering modification projects that commonly emitted from municipal evaluated the degree of reductions involved adding a single combustion waste landfills. A landfill increasing its found to be achievable in GHG BACT unit that would have total GHG emissions by just over 50 tpy NMOC reviews for these unit types. emissions less than 75,000 tpy CO2e. We would add over 190,000 tpy CO2e of The results of our equivalency found it is much more likely that a PSD- GHG emissions (CH4 expressed on a analysis ranged from 17,529 tpy CO2e permitted project would have NOX CO2e basis), which is well in excess of 51 for certain types of stationary IC emissions well in excess of the 40 tpy 75,000 tpy CO2e. We found significant engines, upwards to 425,665 tpy CO2e NOX SER level due to the addition of GHG emission source coverage at a for large power plant turbines. The multiple combustion units or the sheer 75,000 tpy CO2e level for other average result across unit types was size of the primary unit itself, such as important source categories containing 98,333 tpy CO2e. The analysis a power plant turbine or steam- non-combustion related GHG-emitting confirmed that, for some unit types, generating unit. Such projects will have units and processes, including cement GHG emissions increases would clearly GHG emissions multiple times greater production, nitric acid production, exceed the current 75,000 tpy CO2e than our theoretical equivalency results. refineries, and underground coal mines. level if that unit increased NOX Our third category of data review The non-combustion related units and emissions over the NOX 40 tpy SER looked to identify any additional GHG processes in these categories that emit level. For example, a natural-gas fired emission sources, particularly non- GHGs in amounts greater than 75,000 combustion related units or processes combustion turbine, commonly added tpy CO2e are responsible for over 90 as part of a modification project at that might be part of ‘‘anyway sources’’ percent of the non-combustion related existing power plants, would have GHG PSD modification projects, which could GHG emissions from each of these emissions well in excess of 75,000 tpy potentially be subject to the BACT source categories. CO2e. In projects involving a large requirement for GHGs at applicability Another important finding from our power plant turbine unit such as this, a levels below 75,000 tpy CO2e. Our review of non-combustion sources that single unit can trigger the requirement review of past PSD permits showed that emit GHGs was that there is evidence to obtain a PSD permit. the large majority of PSD permitted that smaller GHG-emitting units that However, for other types of emissions projects that involved GHG emission would not otherwise trigger PSD units that might be added as part of a increases triggered PSD because of the independently can be pulled into PSD PSD triggering modification, we found it addition of combustion units. In when other emissions units are added in necessary to consider the results in light addition, most of these combustion unit the same project. Once the BACT of the actual permitting experience. For projects had GHG emission increases in requirement is applicable to a given example, our analysis showed excess of 75,000 tpy CO2e. Nevertheless, pollutant based on emissions in excess equivalent GHG emissions increases we also assessed the coverage of non- of the significance levels, the BACT below a 20,000 tpy CO2e level for combustion related GHG sources that review covers any associated processes adding a stationary IC engine. In other might trigger PSD to ensure that we did emitting the same pollutants as the main words, an IC engine that just increases not miss meaningful reductions of GHGs units that are the principal reason for NOX emissions by 40 tpy or more could that could be achieved by applying triggering PSD review. Because of the be expected to increase GHGs by less BACT to GHG at modification projects than 20,000 tpy CO2e. However, that increase GHGs in amounts less than 51 Memorandum from H. Ward, EPA/SPPD, to J. addition of a single IC engine is not the 75,000 tpy CO2e level that were used Mangino, EPA/AQPD, re: Methane to NMOC ratio commonly a PSD triggering event. Our in prior permits. Using information from at landfills. June 17, 2014.
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definition of the GHG pollutant as the subject additional non-combustion process heaters and furnaces of the size ‘‘sum-of-six’’ constituent gases, ancillary emissions to the GHG BACT review. If typically seen as part of ‘‘anyway units that emit relatively small amounts these non-combustion units are source’’ PSD projects are custom-built of GHGs other than CO2 could become constructed independently, they will and thus not generally purchased as subject to GHG BACT requirement if a generally not emit regulated NSR ‘‘off-the-shelf’’ items. Thus, these units combustion unit added to the source at pollutants other than GHGs in amounts can be site-designed and constructed in the same time emits GHGs in excess of that are high enough to trigger PSD a way that considers and incorporates a the significance level that the EPA review, or they will not involve GHG combination of energy efficiency promulgates. Based on the actual emissions at all. So establishing a GHG measures.53 The application of BACT experience of permitted sources using a SER lower than 75,000 tpy CO2e would review is thus particularly relevant to 75,000 tpy CO2e level under Step 1 of not likely cause these non-combustion these types of units as it involves case- the Tailoring Rule to determine GHG sources to become subject to the GHG by-case review of technology BACT applicability, we have seen BACT requirement. Non-combustion implementation and cost smaller GHG-emitting units get pulled GHG-emitting processes that are part of considerations. into PSD permits involving larger units a project generally are not brought into If carbon capture and sequestration at oil and gas production, processing the GHG BACT review without the (CCS) is found to be achievable at such and transmission facilities. At these contemporaneous addition of a large industrial boilers, process heaters facilities, projects that have triggered combustion unit that serves as the PSD- and furnaces, the degree of emissions PSD involved addition of a large single triggering event. A GHG SER of 75,000 reductions that could be achieved is or multiple smaller combustion units tpy CO2e would ensure that such significantly increased. Thus, whether (such as large gas compressor turbines projects will be subject to the GHG energy efficiency or more effective and engines that trigger PSD because of BACT requirement. controls are applied, the BACT Our fourth category of data review emissions of NOX or another pollutant requirement would be expected to yield besides GHG). These projects also had looked at the degree of GHG emissions a meaningful degree of GHG emissions reductions that one could expect to associated CH4 leaks from piping, reductions when applied to an achieve by applying energy efficiency valves, and gas storage equipment. The individual source or modification that measures as BACT for GHGs at projects combustion unit(s) involved in such increases GHG emission by 75,000 tpy involving certain types and sizes of projects that triggered PSD had GHG CO2e or more. emission increases exceeding 75,000 tpy combustion units. Although we reviewed a variety of GHG reduction In contrast, when we consider CO2e, and thus subjecting the project to emissions units that emit GHGs in GHG BACT review under previous PSD techniques focused on energy efficiency amounts below 30,000 tpy CO2e, we regulations. In addition to evaluating measures applied to combustion units since, as noted in our review of generally see smaller ‘‘off-the-shelf’’ controls for GHG emission from the type units, such as stationary IC combustion units, the GHG BACT ‘‘anyway source’’ permitting, the addition or modification of combustion engines. The ability to achieve review accompanying these projects additional GHG reductions from such included measures directed at the units is, and likely will continue to be, the principal triggering event for most units is limited or non-existent for fugitive CH4 sources associated with the several reasons. First, implementing the project because the GHG pollutant PSD permits involving GHGs. The EPA’s GHG permitting experience has been efficiency measures generally requires includes both CO and CH gases. By 2 4 that BACT for such sources will usually site-specific design and construction themselves, the CH emissions fell 4 be energy efficiency measures. criteria, more typically associated with below the 75,000 tpy CO e level, and 2 Therefore, in evaluating a possible GHG larger scale projects where these the fugitive sources alone would not SER option, we focused on the measures can be part of unit design and have triggered PSD based on pollutants implementation, effectiveness and value manufacture. Second, ‘‘off-the-shelf’’ other than GHGs. However, based on the of energy efficiency measures at units such as IC engines typically definition of the GHG pollutant, because combustion sources that may be cannot be substantially modified or other emissions units at these sources expected to trigger PSD. tampered with in order to be guaranteed triggered PSD and then also triggered Our main finding from reviewing to meet their certified performance BACT for GHGs based on emission in these energy efficiency measures is that standards. Third, there is little variation, excess of 75,000 tpy CO2e, these the degree of emissions reductions typically within 1 or 2 percentage ancillary units were pulled into the achieved is greater at larger combustion points, in the efficiency of these types overall GHG BACT review. units that would be subject to GHG of engines sold by different vendors. This finding explains in part why we BACT review at or above a 75,000 tpy The market demands that all such did not find evidence of many ‘‘anyway CO2e SER. We found that the maximum engines be highly-efficient across source’’ PSD permits with emission reduction potential from energy vendors, and thus offers little units that emit less than 75,000 tpy efficiency measures is approximately 7 opportunity for GHG reductions from CO2e. Our review of prior ‘‘anyway percent 52 from a baseline industrial the purchase decision. Finally, given the source’’ PSD permitting actions showed boiler configuration. Emissions relatively small capital cost of these that a large majority of PSD permits for reductions on this scale are generally units and the anticipated high cost of projects that would be most likely to only obtainable where site-specific CCS, it is unlikely that CCS will even be involve GHG emission increases are design and construction criteria can be found to be achievable when such a unit triggered by the addition of large part of the combustion unit design and is installed by itself without a much combustion units. In addition, we found manufacture. Large industrial boilers, that most of these larger combustion 53 ‘‘Boiler Efficiency Projects-Development of units would have GHG emission 52 ‘‘Available and Emerging Technologies for Issues Papers for GHG Reduction Project Types: increases in excess of a 75,000 tpy CO2e Reducing Greenhouse Gas Emissions from Boiler Efficiency Projects,’’ Prepared for the Industrial, Commercial, and Institutional Boilers,’’ California Climate Action Registry, January 7, 2009. GHG SER level. Thus, we can anticipate EPA Office of Air Quality Planning and Standards. http://www.climateactionreserve.org/wp-content/ that setting a GHG SER below the 75,000 October 2010. http://www.epa.gov/sites/production/ uploads/2009/03/future-protocol-development_ tpy CO2e level would be unlikely to files/2015-12/documents/iciboilers.pdf. boiler-efficiency.pdf.
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larger combustion unit that will trigger aggressive energy efficiency measures GHG SER option as described in the the PSD BACT requirement. on an additional unit that emits at or sections of this preamble that follow. It is worth recalling the definition of near the current 75,000 tpy CO2e Sections V.D.2 to V.D.5 of this the word ‘‘meaningful,’’ as described permitting threshold, the total amount preamble provide more detail on each of earlier in Section V.C of this preamble of GHG emissions avoided would be the individual technical reviews and where we discuss the historical limited considering the total amount of analyses and the findings obtained from background for de minimis levels under increased GHG emissions from such a each. PSD. In the preamble to its 1980 PSD unit. A 7 percent improvement in a 2. Review of PSD Permitting and GHG rule, the EPA defined ‘‘meaningful’’ baseline boiler unit efficiency could Emission Sources reductions as greater emission reduce a 74,999 tpy CO2e boiler unit’s reductions than one would expect to be GHG emissions by approximately 5,500 Under our first technical review, we achieved from otherwise-applicable tons CO2e per year. Another way to examined existing PSD permitting regulatory requirements such as an view this is that exempting such a information to determine the types and NSPS or NESHAP. 45 FR 52706. The source from the BACT requirement for size of GHG emission sources that are EPA does not expect that BACT review GHGs would result in a marginal likely to be part of PSD ‘‘anyway for IC engines would produce any increase of 5,500 tpy CO2e in GHG sources.’’ We looked at two sources of reductions for GHGs beyond that emissions. The modification would still information for this review. First, we resulting from the NSPS compliance increase GHG emissions by 69,500 tpy looked at GHG permitting information standards that already exist for these CO2e even after applying the most from the EPA Regional offices and states new units. Given the nature of these aggressive energy efficiency measures as part of an effort under the Tailoring units, the EPA and permitting through the BACT requirement. In Rule to collect information on actual authorities have not identified controls reality, the marginal emissions increase PSD permits issued that included GHG at this time that can be added to these from not applying BACT to GHGs at BACT review. Second, we reviewed engines to further reduce their GHG such a source would likely be less than information from the EPA’s RBLC, emissions. Where IC engines have been 5,500 tpy CO2e because that increase is including permits for which no GHG part of ‘‘anyway source’’ PSD projects to based on a PTE scenario.55 BACT review was included. The date, typically in association with a In addition to considering the subsections of this preamble that follow larger turbine or boiler units, the findings from the four categories of describe each review and the key selection of high-efficiency engines that analysis described earlier, we also findings. meet the requirements of the applicable considered the GHGRP’s reporting a. GHG Permitting Under Step 1 of the NSPS has qualified as BACT. Therefore, threshold for GHG emissions, which is Tailoring Rule the value for site-specific GHG BACT 25,000 metric tpy CO2e for most review on projects involving only one or reporting sources, based on actual The main purpose of this analysis was two smaller combustion units of the emissions. Depending on utilization, the to assess and summarize the GHG type that might be implicated at GHG PTE-based emissions can be permitting experience to date for ‘‘anyway sources’’ emitting GHGs at or SER values less than 30,000 tpy CO2e is significantly greater than 25,000 metric above the 75,000 tpy CO e GHG likely to be virtually non-existent. The tpy CO2e. For example, a source actually 2 EPA therefore does not view potential emitting 25,000 tpy CO2e would have a threshold level, the effective GHG emission reductions from the BACT PTE of 50,000 tpy CO2e if it were run permitting level for sources that were requirement at projects that increase at a 50 percent utilization rate over the otherwise subject to PSD permitting for GHG emissions by less than 30,000 tpy course of the year. Also, the reporting conventional non-GHG pollutants under CO2e as meaningful in the context of rule does not require that those facilities Step 1 of the Tailoring Rule. The term setting a de minimis level under PSD. above the reporting threshold take ‘‘anyway sources’’ refers to sources that For modifications at ‘‘anyway measures to control their GHG trigger PSD permitting requirements sources’’ that trigger PSD and increase emissions; rather it only requires that ‘‘anyway’’ based on pollutants other GHG emissions by 30,000 tpy to 75,000 sources monitor and report their than GHGs, regardless of the amount of tpy CO2e, we found that it may be emissions. So while the GHGRP their project-related GHG emissions. We possible to apply energy efficiency illustrates a comparative level of GHG focused on these ‘‘anyway source’’ measures to achieve some reductions in emissions associated with industrial permits since they are the only GHG emissions, but there is reason to type GHG-emitting facilities deemed sources and projects that would question whether the degree of significant for monitoring and reporting potentially be subject to GHG permitting reduction achieved would be purposes, we did not see this threshold following the UARG decision that meaningful. For example, we found that as a directly transferrable GHG metric effectively limited GHG permitting to the current maximum reduction for setting a GHG SER because of the sources and projects that would potential from energy efficiency different end-uses and requirements. otherwise be subject to permitting based measures for combustion units, mainly However, the GHGRP reporting on emissions of pollutants other than at boiler configurations, is around 7 threshold did provide us a quantified GHGs. We did not include in our review percent.54 At smaller combustion units, GHG emission level for a relative frame PSD permitting conducted under Step 2 there are reasons to question whether of reference in evaluating our proposed of the Tailoring Rule since Step 2 this maximum reduction potential could required PSD permits and GHG BACT be achieved. However, assuming this 55 As this summary of our technical review review for sources and modifications percentage of reduction could be demonstrates, our findings are based on an analysis based solely on GHG emission achieved by applying the most of currently available information. The information considered as part of our analysis, such as the increases. Such sources do not trigger average GHG emissions reduction that can be PSD after the UARG decision and 54 ‘‘Available and Emerging Technologies for achieved from the application of energy efficiency subsequent revisions to the EPA’s Reducing Greenhouse Gas Emissions from or the availability of CCS for smaller sources, may regulations, including those proposed in Industrial, Commercial, and Institutional Boilers,’’ change in the future. Thus, after this rule is EPA Office of Air Quality Planning and Standards. finalized, EPA may need to periodically consider if this rule. October 2010. http://www.epa.gov/nsr/ghgdocs/ there are significant changes to the information By analyzing the types of GHG iciboilers.pdf. considered in our analysis. emission units and sources subject to
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GHG BACT review during the past four as part of ‘‘anyway sources’’ permitting natural gas for large stationary IC years, we developed a historical profile actions. engines. There were limited cases of of the source coverage and GHG BACT A 75,000 tpy CO2e level also does not biomass fuel used, principally in the review process at the 75,000 tpy CO2e overlook other significant units. In our pulp and paper sector. The emissions GHG permitting level. Looking at this review of GHG permitting at a variety of from these larger combustion units were historical record, we can better assess to ‘‘anyway sources’’ besides power plants, in most cases the principal cause for what extent the existing 75,000 tpy we found that GHG emissions for units these projects requiring PSD review for CO2e permitting level subjects subject to GHG BACT review were both non-GHG pollutants and GHGs. significant GHG-emitting sources to generally well above the 75,000 tpy Over 90 percent of the permitted BACT review, and whether GHG BACT CO2e threshold. This is because of the activities within the sample of reviewed review at that level yields emission greater level of GHG emissions permits involved combustion units of reductions that were meaningful. associated with large fossil-fuel fired some type, primarily fossil fuel-fired combustion units, such as turbines and For this analysis, we reviewed boilers, turbines, or stationary IC boilers. The addition of these units was engines. summary information on 200 PSD typically the triggering event that permits issued during the 2011–2014 Some permits for these combustion caused the need for a PSD permit for unit projects also included ancillary, timeframe that contained GHG BACT pollutants other than GHGs. It was also requirements after GHGs became a non-combustion related sources of evident from the review that most newly GHGs for which GHG BACT review was regulated NSR pollutant. We constructed facilities (i.e., ‘‘greenfield summarized the characteristics of the conducted. These sources consisted facilities’’ as opposed to modifications principally of fugitive emission releases sources and types of units that have of existing major sources) that obtain been subject to GHG BACT review. of CH4 from natural gas delivery, ‘‘anyway source’’ PSD permits will processing or storage units, and SF Some of the key findings from this generally have GHG emissions well in 6 review are presented here; more details releases from circuit breaker equipment excess of a 75,000 tpy CO2e threshold associated with power plants.60 There on this analysis are included in the based on the cumulative, facility-wide 56 were isolated examples of other non- docket for this proposed rulemaking. total GHG emissions from all emission Based on this review sample, combustion related sources at two points in the facility fence line. chemical production facilities: GHG approximately 90 percent of all the PSD As part of this same analysis, we also emissions from a nitric acid production permits with GHG BACT limits were performed a more detailed review on a process and CO from a CO liquefaction issued to ‘‘anyway sources,’’ 57 with the sample subset of 55 individual ‘‘anyway 2 2 process. These processes were both other 10 percent issued to sources that source’’ permits that included GHG large GHG-emitting processes, emitting were subject to PSD permitting only BACT limits and represented PSD more than 90,000 tpy CO e. because of their GHG emissions (and permits for different source category 2 thus would not be captured at any SER types. Key findings from these sample b. RBLC Permitting Information level because they are not ‘‘anyway permit reviews are summarized here sources’’). with more details of the review For this analysis, we reviewed information on PSD permits contained The importance and contribution of included in the docket for this proposed in the RBLC to understand the types of the power generating sector to GHG rulemaking.59 The source category types non-GHG emission sources that were national emissions cannot be overstated represented by these 55 permits subject to BACT review for other when considering opportunities for included the following: Power plants; pollutants besides GHG but that may GHG reductions and identifying where chemicals production facilities; oil and also be important from a GHG emission there is clear, non-trivial value in gas industry sources; metals and perspective. Since the UARG decision applying BACT review to obtain such mineral production facilities; pulp and limited the scope of the PSD permitting reductions. Power plants are responsible paper production facilities; ethanol program to ‘‘anyway sources,’’ it is for a majority of the country’s total production plants; and a municipal important to understand the types of stationary source GHG emissions, waste combustion facility. sources that are typically part of approximately 66 percent of the We found that the construction ‘‘anyway sources’’ PSD permitted reported 2013 GHG emissions under the projects covered by these PSD permits projects and their potential to emit EPA’s GHGRP.58 Since combustion included at least one, and in most cases GHGs. This analysis differed from our units, such as large gas turbines and multiple, large combustion units, such review of historical GHG permitting steam boilers installed at power plants, as large fossil fuel-fired turbines, data since the RBLC dataset also consistently have GHG emission boilers, process heaters, or furnaces, contains PSD permits that did not increases well in excess of 75,000 tpy along with associated stationary IC contain GHG BACT limits, and thus we CO e, a GHG SER at this level will engines for some facilities (generally as 2 could identify if there were other GHG ensure that permitting authorities backup emergency generators or for emissions sources that could potentially continue to apply GHG BACT review to associated equipment such as pumps be subject to GHG BACT review at the largest and most prevalent GHG and compressors). The GHG emission permitting threshold levels below emission units in the power plant sector levels associated with these sample PSD projects were consistently over 100,000 75,000 tpy CO2e. A detailed report of this analysis is included in the docket 56 tpy CO2e, with many facilities, ‘‘A Summary Analysis of the GHG Permitting 61 Experience between 2011 and 2014.’’ Prepared by particularly greenfield facilities, for this rulemaking. EPA Staff, March 2015. reporting much higher levels. The 57 As discussed previously in Section V.D.1, the principal fuels used in the combustion 60 ‘‘A Summary Analysis of the GHG Permitting ‘‘anyway source’’ permits with GHG BACT limits units were natural gas for boilers, Experience between 2011 and 2014.’’ Prepared by all involved energy-intensive industries, emitting EPA staff, March 2015. furnaces, and turbines and diesel or significant amounts of CO2 from the burning of 61 ‘‘A Summary Review of Recent PSD Permitting fossil fuels in various types of combustion units. Activity for ‘‘Anyway Source’’ Categories and the 58 2013 GHGRP Overview Report, http:// 59 ‘‘A Summary Analysis of the GHG Permitting Potential GHG-Emitting Units and Processes within www.epa.gov/sites/production/files/2015-07/ Experience between 2011 and 2014.’’ Prepared by Those Categories.’’ Prepared by EPA staff, March documents/ghgrp-overview-2013.pdf. EPA staff, March 2015. 2015.
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We began our review of ‘‘anyway facility. Most of the larger combustion oil and gas sector with CH4 emissions. source’’ PSD permits by assessing the units covered by PSD permits were The oil and gas industry is well types of emission units and sources that fueled principally by either natural gas represented in PSD permitting, with the triggered PSD actions for pollutants or process-related gas for industries third highest count of permits between other than GHGs. We then identified (such as petroleum refineries) where 2011 and 2014, and is also the second which of the units would most likely such gas is generated. Some permits also largest emitting industrial sector for emit GHGs. We reviewed detailed included smaller, stationary engines non-combustion related CH4 process level information from over 100 (typically emergency generators or fire emissions.66 We were particularly ‘‘anyway source’’ PSD permits issued in pumps) principally fueled by either interested in understanding the the last 4 years for source categories diesel or natural gas. contribution of combustion units in likely to have some amount of GHG From a sample of about 400 PSD triggering PSD ‘‘anyway’’ at oil and gas emissions.62 permits contained in the RBLC dataset sector facilities, and how this might We examined individual source for the years 2011 to 2014, we identified influence GHG permitting at a proposed category projects as represented in the only 20 PSD permits for modification GHG SER level. RBLC dataset to see if there was projects 64 from the RBLC data set that We found that, for projects subject to evidence of any consistency in the type included combustion units whose PSD in the oil and gas industry, and/or size of combustion units across cumulative GHG emissions would likely combustion units still dominate the key source categories and the extent to not exceed 75,000 tpy CO2e based on GHG emission profile. We examined a which they appear to be the primary their fuel input data. Although we sample of 16 PSD permits issued emissions unit that is installed or recognize that the RBLC dataset does between 2011 and 2015 associated with modified and triggers PSD for pollutants not reflect a complete dataset of the oil and gas sector to determine other than GHGs. To get a representative permitting actions due to its voluntary whether PSD permits in the industry are sample across different source participation and under-reporting, we principally and routinely required due categories, we reviewed permits from a reasonably expect, based on the overall to projects involving combustion units variety of industrial classifications, characteristics of the other PSD permits or if they are sometimes triggered by including potentially important GHG- we reviewed and the type of GHG non-combustion emissions units alone, emitting categories such as metals source categories affected under PSD, and whether such non-combustion units production, chemical manufacturing, that there are a relatively low number of might also be sources of GHG emissions. petroleum refineries, the oil and gas ‘‘anyway source’’ PSD projects with A detailed summary of this review of oil industry, pulp and paper industries, and GHG emissions likely to be less than and gas sector PSD permits is provided waste industries.63 We did not include 75,000 tpy CO2e. in the docket for this proposed power plants in the RBLC sample set we We also found that where non- rulemaking, from which the following reviewed because we knew with a high combustion processes were covered by key findings are taken.67 In all the PSD level of certainty that the PSD permitted a PSD permit, the emissions from these permits that we evaluated for this oil projects for these facilities principally processes principally consisted of PM- and gas sector review, combustion involved very large combustion units, related fugitive emissions, such as dust sources were the primary driver of PSD such as large gas turbines, with GHG from material handling or roads. There applicability for the permitted new levels well in excess of the current were also some specific industries, such source or major modification. Based on 75,000 tpy CO2e threshold. Therefore, as oil and gas processing plants, available emissions data within the these permits would not provide any refineries, chemical production plants permits, we did not find a PSD permit additional insight into the and landfills, where VOC emissions, that did not cover combustion units as characterization of sources that obtained often fugitive in nature, from piping, the primary emitters of PSD pollutants, permits because of pollutants other than pumps and storage tanks, were subject including GHGs. Of the 13 permits for GHGs for purposes of evaluating a to BACT requirements. However, in which GHG emissions were provided or possible GHG SER option. most of these cases there were large could be readily calculated, 12 of the Across the sampled industry combustion units included in the PSD- projects involved GHG emissions greater categories, we found that ‘‘anyway permitted project that appear to be the than 75,000 tpy CO2e, with four of these sources’’ triggered PSD for conventional key source of the emissions of a over 500,000 tpy CO2e. The one project pollutants primarily because of the pollutant other than GHGs that exceed with less than 75,000 tpy CO2e was a addition or modification of combustion the applicable pollutant significance modification project to increase flaring units, such as turbines, boilers, process level, and thus drive the requirement for as a BACT control strategy for VOCs. Of heaters, furnaces, and stationary IC a PSD permit.65 the 10 permit actions with adequate engines. For most facilities, combustion Working from our preliminary finding data to estimate GHG emissions on a units or associated combustion unit- above regarding non-combustion unit basis, combustion emissions related emissions (e.g., flares, exhaust sources, we took a closer look at the accounted for more than 70 percent of gas treatment systems) constituted the extent to which combustion units were GHG emissions in all cases, more than majority of the overall processes for the main component of PSD projects 80 percent in 8 of the 10 cases, and which BACT limits were required for related to a particular source category more than 90 percent in 5 of the 10 pollutants other than GHGs at any given that has significant non-combustion cases. GHG emissions, namely, facilities in the 62 ‘‘A Summary Review of Recent PSD Permitting 66 ‘‘Inventory of U.S. Greenhouse Gas Emissions Activity for ‘‘Anyway Source’’ Categories and the 64 ‘‘List of Permits Identified in RACT/BACT/ and Sinks: 1990–2013,’’ Table ES–2. Document No. Potential GHG-Emitting Units and Processes within LAER Clearinghouse that Likely Have Combustion- EPA 430–R–15–004. April 15, 2015. http:// Those Categories.’’ Prepared by EPA staff, March Related Emissions that are less than 75,000 tpy www.epa.gov/climatechange/ghgemissions/ 2015. CO2e’’. Prepared by EPA Staff, October 2015. usinventoryreport.html. 63 ‘‘A Summary Review of Recent PSD Permitting 65 ‘‘A Summary Review of Recent PSD Permitting 67 ‘‘A Summary Review of Recent PSD Permitting Activity for ‘‘Anyway Source’’ Categories and the Activity for ‘‘Anyway Source’’ Categories and the Activity for ‘‘Anyway Source’’ Categories and the Potential GHG-Emitting Units and Processes within Potential GHG-Emitting Units and Processes within Potential GHG-Emitting Units and Processes within Those Categories.’’ Prepared by EPA staff, March Those Categories.’’ Prepared by EPA staff, March Those Categories.’’ Prepared by EPA staff, March 2015. 2015. 2015.
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3. GHG Emissions Levels for could then consider the merits, in the ‘‘anyway sources’’ that occurred under Combustion Units context of meeting the de minimis the GHG Tailoring Rule. PM is also a Once we had an understanding of the principles, of aligning GHG BACT combustion pollutant, but it is emitted characteristics of ‘‘anyway source’’ review on similar-sized combustion unit in very small quantities from natural gas permitting actions specially, the projects that would be otherwise units and PM often does not trigger PSD prevalence of combustion units as the requesting PSD review for non-GHG review on its own. Therefore, as a primary GHG-emitting sources in these pollutants. From a theoretical surrogate, PM would not adequately PSD permits based on the permitting standpoint alone, such an alignment capture significant projects involving review described in Section V.D.2 of would optimize the emissions-reduction natural gas fired units, which are this preamble, we then focused on benefits available through the BACT anticipated to comprise a large identifying the level of GHG emissions review process with a marginal increase proportion of future PSD permitted associated with the combustion units in permitting burden program-wide for units. Volatile organic compounds most likely to be part of future PSD- both permitting authorities and sources (VOCs) are emitted from a large variety triggering projects. From our review of (the incremental increase in burden of processes, many of which do not ‘‘anyway source’’ PSD permits, we from the BACT review for an additional involve combustion units or have found that most of the projects involved pollutant). associated CO2 emissions, and therefore some combination of turbines, boilers, We identified NOX as the most is not well suited as the basis for process heaters/furnaces, and stationary appropriate surrogate ‘‘anyway’’ developing a representative, surrogate IC engines.68 Most of the units were pollutant with which to compare the GHG level. either natural gas or diesel-fired, with a GHG emissions level. NOX is commonly Our equivalency analysis used the emitted in significant quantities from ratio of the emission factors of GHG to smaller number of biomass-fueled units. 72 Natural gas-fired units predominated in the types of combustion units that are NOX for each applicable unit type. the larger combustion categories of expected to be covered in most of the The ratio was then used to calculate the turbines and boilers. This finding is future PSD permits. These are new equivalent emissions of GHG, on a PTE) consistent with the projections from the electricity generation, large natural gas basis, for a 40 tpy NOX emission level EPA’s Boiler maximum achievable and diesel-fired turbines, boilers, for each unit type. The GHG-to-NOX control technology (MACT), which process heaters, furnaces, and IC ratio varied based on the unit types, shows over 94 percent of projected engines. We did not consider coal-fired which was expected since the emission industrial boilers and process heaters to units in designing the surrogate analysis factors for NOX, and to a lesser extent be natural gas-fired units.69 because projections of future boiler and CO2, vary among the unit types and In order to estimate the level of GHG process heater units from the EPA’s their control configurations. The emissions that correlated with the type Boiler MACT (78 FR 7138, January 31, underlying emission factors used for the and size of combustion units that are 2013) and EGU NSPS (80 FR 64510, surrogate analysis were selected to best most likely to trigger PSD for ‘‘anyway October 23, 2015) rulemakings show represent the most likely configurations sources,’’ we needed to equate GHG little, if any, new coal-fired capacity as for newly installed units at PSD 71 emissions with those from an part of projected new construction. permitted facilities. appropriate non-GHG pollutant SER that We investigated the possibility of We estimated the following GHG would trigger PSD applicability. From using alternative surrogate pollutants for emissions based on our equivalency our review of permit data, we identified performing the equivalency analysis but analysis. For natural gas-fired turbines, that the combustion units most often found little value in pursuing these the range was 50,346 to 425,655 tpy other options. For various reasons, these occurring in ‘‘anyway sources’’ PSD CO2e, with an average of 186,537 tpy other pollutants did not correlate well permits were commonly triggering PSD CO2e across configurations. For large with estimating equivalent GHG for emissions of NOX. We determined (greater than 100 MMBtu/hr) natural gas that the use of the NO SER would be emissions from the combustion unit boiler/process heaters/furnaces, the X sources that represent the largest a reasonable and appropriate value to range was 34,302 to 63,188 tpy CO2e, proportion of the sources that have been use as the basis for estimating with an average of 48,504 tpy CO2e equivalent GHG emissions associated permitted for GHG. For example, CO is across configurations. For small (less with these ‘‘anyway source’’ combustion not a good surrogate since its emissions than 100 MMBtu/hr) natural gas boilers/ units. A full description of this analysis are typically inversely related to the process heaters/furnaces, the range was amount of CO emitted from is provided in the docket for this 2 48,023 to 150,072 tpy CO2e, with an combustion, the former representing rulemaking.70 average of 98,047 tpy CO2e across The basic premise of this analysis was more incomplete combustion conditions configurations. The resulting to identify a theoretical minimum GHG and the latter more complete equivalency level for GHGs was greater emissions level that equates to the combustion. Also, since the CO SER for the smaller boiler category since the level is relatively high compared to existing NOX SER level (i.e., 40 tpy) for ratio of GHG to NOX in the emission rate different combustion unit types. We other pollutants (100 tpy), equating CO2 was greater; in other words, for the emissions to CO levels would result in small boiler category, each ton of NOX 68 ‘‘A Summary Review of Recent PSD Permitting a GHG SER level well above 100,000 emissions correlated with more tons of Activity for ‘‘Anyway Source’’ Categories and the tpy, which would not adequately GHG emissions than for the large boiler Potential GHG-Emitting Units and Processes within capture significant projects that are Those Categories.’’ Prepared by EPA staff, March category. For biomass boilers, the result otherwise subject to permitting for other was 78,210 tpy CO e based on average 2015. non-GHG combustion pollutants based 2 69 Memorandum from Eastern Research Group, factor for wood residue, including bark Inc. to Brian Shrager, EPA, ‘‘Revised New Unit on our knowledge of GHG permitting for and wet wood. For large (greater than Analysis Industrial, Commercial, and Institutional 500 horsepower (HP)) natural gas-fired Boilers and Process Heaters National Emission 71 Memorandum from Eastern Research Group, Standards for Hazardous Air Pollutants—Major Inc. to Brian Shrager, EPA, ‘‘Revised New Unit stationary IC engines, the result was Source,’’ November 2011. Analysis Industrial, Commercial, and Institutional 70 ‘‘Estimating Equivalent GHG Emissions Levels Boilers and Process Heaters National Emission 72 Estimating Equivalent GHG Emissions Levels based on the PSD NOX SER Value.’’ Prepared by Standards for Hazardous Air Pollutants—Major based on the PSD NOX SER Value.’’ Prepared by EPA staff, September 2015. Source,’’ November 2011. EPA staff, September 2015.
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74 19,000 tpy CO2e. For large (greater than up in one of two ways in ‘‘anyway fermentation and natural gas systems. 750 HP) diesel-fired stationary IC source’’ PSD permits: (1) As associated A landfill project can trigger PSD engines, the result was 17,529 tpy CO2e. equipment (e.g., emergency backup applicability as an ‘‘anyway source’’ if The average result across all ranges and generator or fire pump engine) where its increased emissions exceed the PSD 73 units was 98,333 tpy CO2e. there is a large combustion unit such as SER level of 50 tpy for NMOC, the It is important to note that the levels a turbine or boiler that is principally applicable NSR regulated pollutant for of GHG equivalency shown earlier responsible for triggering the permitting municipal waste landfills. A landfill provide an approximate measure of the action; or (2) in multiple-unit emitting just over 50 tpy NMOC would theoretical minimum level of GHG configuration generator sets (e.g., 10 or emit just over 190,000 tpy of CH4 on a emissions that could be associated with more large IC engines linked together for CO2e basis, well in excess of the current adding a particular type of combustion electricity production). Unlike the 75,000 tpy CO2e GHG permitting 75 unit with emissions that just exceed the addition or modification of a large level. Thus, there is high confidence NOX SER level of 40 tpy. This does not turbine unit where a single unit can that any landfill project exceeding the necessarily mean that applying BACT trigger a PSD action, it is a much less PSD SER level for NMOC will likely for GHGs to projects of a certain size common scenario where a single IC exceed any GHG SER option below this would yield greater than a de minimis engine would be the triggering event for 190,000 tpy CO2e level. benefit. This analysis is simply another We analyzed other source categories data point to inform the identification of a PSD permit since such units generally with significant non-combustion related a SER level for GHGs where the consume much less fuel and generate GHG emissions based on the EPA’s confluence of ‘‘anyway source’’ PSD much lower emissions, non-GHG or national GHG inventory.76 The projects and GHG reduction benefits is GHG, than larger boiler and turbine inventory included source categories meaningful. The equivalent GHG units. with facilities that had a likelihood of emissions level represents emissions Our reviews and analyses to this point triggering PSD based on our review of from a theoretical project that adds a have clearly identified the importance past permits. Unlike landfills, these combustion unit(s) that emits just over of combustion units as both a triggering categories do not have a source-specific, 40 tpy NOX. However, based on what we event for ‘‘anyway source’’ permitting regulated NSR pollutant that can be saw in our review of ‘‘anyway source’’ actions for conventional pollutants and equated with GHG emissions and permits described in Section V.D.2 of also as a critical GHG emission compared to a GHG SER option. The this preamble, the likelihood of such a component of these projects. The next categories we looked at included cement project is not high because, in cases section in this preamble describes our production, glass production, nitric acid where the NOX emission increase is review of non-combustion related GHG production, electronics manufacturing, close to the NOX SER level, and where emission sources, and how they may petroleum refineries, natural gas it is considered a practical operating also contribute to GHG emissions for systems, underground coal mines and condition for the unit involved (such as certain PSD projects associated with industrial wastewater treatment. For smaller units), the applicant very often certain source categories. this effort, we analyzed GHG emissions accepts PTE limits to avoid triggering data for these source categories that PSD at all. 4. Non-Combustion Related GHG were submitted under the GHGRP. A Also, as we have seen in our review Emissions technical support document describing of actual permits, it is more likely that the analysis and results is provided in a PSD-permitted project would have We conducted an additional the docket.77 In the following evaluation to identify any GHG source NOX emissions well in excess of the 40 discussion, we summarize the analysis categories that we might not have tpy NOX SER level, due to the addition and some of our key findings. of multiple combustion units or the identified in our review of permitting For this analysis, we characterized sheer size of the unit itself, such as a activity described in earlier sections of GHG emissions at the unit level where power plant turbine or steam-generating this preamble. We were particularly available (for some categories only unit. In these more typical PSD focused on process-related, GHG- facility level data were available) and scenarios, GHG emissions would be emitting units which could potentially compared these emissions to various multiple times higher than the values be subject to the GHG BACT actual emissions-based thresholds shown earlier. Although our review of requirement at de minimis levels below (50,000 tpy CO2e, 37,500 tpy CO2e, actual samples of PSD permits revealed 75,000 tpy CO2e. Our review of PSD 25,000 tpy CO2e, and 12,500 tpy CO2e) few cases where projects involving these permits issued to date with GHG limits to provide an indication of the units would have GHG emissions just had shown a very small percentage of magnitude of emissions above each above these equivalent NOX SER PSD permits and GHG BACT reviews equivalent levels, these equivalency that have been triggered based 74 ‘‘Inventory of U.S. Greenhouse Gas Emissions levels have value in helping us principally on non-combustion units or and Sinks: 1990–2013,’’ Table ES–2. Document No. EPA 430–R–15–004. April 15, 2015. http:// understand and establish a marker point processes. We wanted to better www3.epa.gov/climatechange/ghgemissions/ for the theoretical minimum level of understand the types and sizes of GHG- usinventoryreport.html. GHG emissions that would be associated emitting units and processes that might 75 Memorandum from H. Ward, EPA/SPPD, to J. with particular unit types. It is also possibly fall into non-combustion Mangino, EPA/AQPD, re: Methane to NMOC ratio useful to look at the results above in source categories to ensure that we did at landfills. June 17, 2014. 76 ‘‘Inventory of U.S. Greenhouse Gas Emissions light of the type of unit involved. As not miss potential non-trivial reductions and Sinks: 1990–2013,’’ Table ES–2. EPA 430–R– shown earlier, stationary IC engines at the proposed GHG SER level. 15–004. April 15, 2015. http://www3.epa.gov/ have an equivalent GHG emission ratio climatechange/ghgemissions/ One category we looked at specifically usinventoryreport.html. below the 30,000 tpy CO2e level. Most was landfills. Municipal waste landfills 77 of these IC engines units typically show Memorandum from T. Parise and S. Edgerton, are important non-combustion, CH4- EC/R Incorporated, to J. Montanez and J. Mangino, emitting sources, and are the third EPA, ‘‘Analysis of Greenhouse Gas Emissions Data 73 ‘‘Estimating Equivalent GHG Emissions Levels largest contributing source category to Collected Under Selected Subparts of the based on the PSD NOX SER Value.’’ Prepared by Greenhouse Gas Reporting Rule,’’ September 30, EPA staff, September 2015 national CH4 emissions behind enteric 2015.
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threshold in the reporting population. categories, such as refineries and required to get a permit, it is still We used actual emissions because that cement production facilities, would also challenging to calculate the emission is the form in which emissions data are likely include combustion units with reductions associated with application submitted under the GHGRP. We substantial associated GHG emissions. of BACT to GHG emissions from a selected the actuals-based thresholds to This would increase the overall GHG particular source. represent possible PTE-based levels if emissions from such projects. The emissions-reduction benefits that one were to assume something less than 5. Potential BACT Techniques may result from the application of 100 percent capacity utilization. For Applicable to GHG Emission Sources BACT can vary widely, depending on example, at a 50 percent utilization rate, the specific configuration of the project a 37,500 tpy CO2e actuals-based level To evaluate the value obtained and source, and the results of the case- equates to a 75,000 tpy CO2e PTE-based through the BACT review process, we specific BACT review. Thus, the level and a 25,000 tpy CO2e actuals- looked at the emission reduction variation in project composition and based level equates to a 50,000 tpy CO2e potential of control techniques that case-specific BACT review not only PTE-based level. Utilization rates can might be considered as BACT for a affects the ability to generate ‘‘typical’’ vary from site to site, and across and particular type of unit/process. The emissions increases and reductions from within industry types, but we believe following section describes the most BACT, but, in turn, also severely the actuals-based thresholds we chose common BACT techniques available for hinders any ability to relate this to for the analysis provide a good reducing GHG emissions from units that health or environmental benefits. representation of the possible range of have been, and will continue to be, part Further complicating the ability to of ‘‘anyway source’’ PSD projects. equivalent PTE CO2e emissions levels. quantify the benefit of BACT is that the Under the CAA and applicable Our non-combustion unit analysis emission reductions would have to be regulations, a PSD permit must contain across all the source categories in the measured from some alternative emissions limitations based on analysis showed a consistent profile of baseline, i.e., what the facility would application of BACT for each regulated a high percentage of GHG emissions have emitted absent the application of associated with a relatively small NSR pollutant. CAA section 165(a)(4); 40 CFR 52.21(j). An analysis of BACT the BACT technique selected through percentage of high-emitting units and the review process. After predicting the facilities. Also, the variation in the for GHGs should be conducted in the same manner as for any other PSD project components subject to BACT amount of total GHG emissions covered review, establishing what the alternative across the analysis thresholds was not regulated pollutant. The CAA and corresponding implementing baseline would have been absent great. Across all categories, this varied application of a BACT technique from 95 percent of GHG emissions at the regulations require that a permitting authority conduct a BACT analysis on a requires specific information about each 12,500 tpy CO2e actuals-based threshold facility site, the source’s development to 88 percent of GHG emissions at the case-by-case basis. The permitting options and what the potential 50,000 tpy CO e actuals-based authority must evaluate the amount of 2 emissions would have been absent threshold. We found that for a number emissions reductions that each available application of BACT. The alternative of the source categories there are emissions-reducing technology or future baseline scenarios for any given particular subcategories of processes or technique would achieve, as well as the facility can vary based on the planned units that are responsible for a majority energy, environmental and economic operations and practices. Thus, it is of the non-combustion related GHG impacts and other costs associated with difficult to project a future project’s PTE emissions. Also, within those particular each technology or technique. Based on level with any specificity within or subcategories there tend to be a this assessment, the permitting across industries. relatively small percentages of large authority must establish a numeric emitting units that are responsible for emissions limitation that reflects the In light of these challenges, we most of those emissions. A summary of maximum degree of reduction focused on the possible GHG control all the source category analyses is achievable for each pollutant subject to techniques that could apply to GHG- provided in the supporting technical BACT through the application of the emitting units/processes that other parts document included in the docket for selected technology or technique. of our analysis indicated would most this rulemaking.78 However, if the permitting authority likely be subject to GHG BACT review Overall, this analysis gave us an determines that technical or economic at ‘‘anyway sources.’’ This review indication of the relative size of limitations on the application of a informed our consideration of the emissions from GHG- emitting processes measurement methodology would make meaningfulness of the GHG BACT and units in some key non-combustion a numerical emissions standard review for units and sources that might related GHG source categories. Our infeasible for one or more pollutants, it be covered at various GHG SER levels. analysis showed that, even when not may establish design, equipment, work Recognizing that larger combustion including direct combustion emissions practices or operational standards to units will likely be the most from these sources and isolating only satisfy the BACT requirement. 40 CFR predominant GHG emission source type the non-combustion related GHG- 52.21(b)(12). at ‘‘anyway source’’ PSD projects, one emitting units or processes, a high One overarching challenge to finding from this review was that energy percentage of GHG emissions would be analyzing GHG emissions-reduction efficiency measures are currently the covered at the current GHG permitting potential is the inherent difficulty in most common BACT strategy for these threshold level of 75,000 tpy CO2e on predicting the specific makeup of new units. In addition, we found that larger PTE basis. Most PSD projects involving construction and modification projects combustion units provide the best sources in these non-combustion that will trigger PSD in general. Another opportunity for achieving GHG challenge is that the BACT control reductions through case-by-case BACT 78 Memorandum from T. Parise and S. Edgerton, requirement is determined on a case-by- review. Sources with small combustion EC/R Incorporated, to J. Montanez and J. Mangino, case basis, based on site-specific factors units or other sources of GHGs provide EPA, ‘‘Analysis of Greenhouse Gas Emissions Data Collected Under Selected Subparts of the at the source in question. Thus, even if limited opportunities for achieving Greenhouse Gas Reporting Rule,’’ September 30, we could roughly predict what sources additional GHG reductions through the 2015. are likely to be subject to PSD and BACT review.
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The sections that follow discuss the actual PSD permits. These procedures involved. Industrial boilers, process most common types of BACT include: 79 heaters and furnaces of the size techniques that have been evaluated • High efficiency burners. typically seen as part of ‘‘anyway through GHG BACT review at ‘‘anyway • Combustion and boiler performance source’’ projects (e.g., greater than 50 sources’’ and implemented by sources optimization. MMBtu/hr heat input rating) are not that obtained permits. These are not • Combustion system generally purchased as an ‘‘off-the- intended to represent every possible instrumentation and controls. shelf’’ item. These units can be site- category of BACT for GHGs but reflect • Air preheat and economizers. designed in a way that enables the techniques most commonly • Turbulators for firetube boilers. consideration and incorporation of a evaluated and applied across a variety • Boiler insulation. combination of the measures shown of ‘‘anyway sources.’’ In specialized • Minimization of air infiltration. earlier. The BACT review is particularly cases, there are unique GHG control • Boiler blowdown heat exchanger. valuable for these types of units as it is techniques available for industry- • Condensate return system. based on case-by-case review of specific processes that emit GHGs, such • Refractory material selection. technology implementation and cost as those that can be implemented at • Minimization of gas-side heat considerations. Manufacturers have nitric acid plants to reduce nitrous transfer surface deposits. models that they can construct based on oxide emissions from the ammonia • Steam line maintenance. the specifications provided by a facility oxidation step. However, based on our In many cases, the impacts of these design engineer. To achieve the desired review of permitting data at ‘‘anyway measures were highly site-specific and performance, the engineer will specify sources’’ and considering the nature of the benefits varied based on the site- the desired design output capacity, units emitting GHGs below 75,000 tons specific configuration and operational steam pressure and/or temperature per year, we expect for the near to conditions of the unit. These measures requirements, and emission thresholds medium term that energy efficiency were typically associated with a GHG that the boiler unit must meet. The measures will continue to be the most emission limit, steam generation rate or design engineer can then provide the predominant GHG BACT mitigation required maximum fueling rate for the project-specific boiler specifications to strategy applicable to ‘‘anyway sources’’ combustion units involved. For most of the boiler manufacturer who will then that increase emissions of GHGs by less these measures, site-specific conditions apply the correctly sized boiler than 75,000 tons per year (on a CO2e and economic variables must be components to its boiler plan and basis). Therefore, the emissions- addressed to determine whether they engineered specifications before reduction achievable with this would be technically and economically running a computer model to estimate technique at sources that have the viable. Also, the absolute benefits for the resulting operational characteristics, potential to emit less than 75,000 tons any given facility or project undergoing including thermal efficiency and 82 per year was an important consideration PSD BACT review will depend on the emissions of the resulting boiler. in developing our proposed GHG SER. relative improvement over some Smaller combustion units, such as baseline unit efficiency that might have smaller industrial and commercial size a. Energy Efficiency Measures been used absent the GHG BACT review boilers and stationary IC engines, are While energy efficiency measures can process. typically purchased ‘‘off the shelf’’ and reduce emissions of all combustion- To give some perspective on the meet manufacturer’s efficiency related pollutants, they are particularly potential benefits of these measures, a standards. Minimum efficiency important for GHGs for two reasons: (1) new natural gas-fired industrial boiler requirements for these boilers are GHG emissions from combustion unit will generally have a baseline mandated to manufacturers by the federal government (U.S. Department of sources (particularly CO2) make up a thermal efficiency in the 82 to 85 large majority of the GHG inventory percent range.80 Implementing a mix of Energy (DOE) and the EPA), and some from the industrial facilities most often the additional measures above, it is states have minimum efficiency subject to PSD permitting; and (2) the possible to obtain thermal efficiencies requirements for boilers that are allowed use of add-on controls to reduce GHG close to 90 percent.81 Thus, looking at to be sold in the market. Stationary IC emissions is expected, for the the difference between the baseline engines that are part of ‘‘anyway foreseeable future, to be a viable BACT efficiency of a new boiler unit and a source’’ PSD projects typically have to option at a only small set of the largest maximum efficiency around 90 percent, meet NSPS requirements for non-GHG GHG emission sources. To date, most we can identify a maximum GHG pollutants, which in many cases form GHG BACT determinations for reduction potential of approximately 7 the basis for the BACT requirement for combustion sources have relied on some percent. those, resulting in purchase decisions combination of energy efficiency In evaluating the value of BACT that include newer, highly-efficient measures. Therefore, it is important to review, it is also helpful to look at the engines that are low-emitters for all consider the implementation, type and size of combustion unit combustion pollutants, including GHGs. effectiveness and value of energy The range in performance efficiency efficiency measures as applied through 79 ‘‘Available and Emerging Technologies for across manufacturers for these new the BACT process to combustion Reducing Greenhouse Gas Emissions from engines is typically within a couple of Industrial, Commercial, and Institutional Boilers,’’ sources that may trigger the GHG BACT percentage points. Office of Air Quality Planning and Standards, EPA. Beyond small differences in requirement at different GHG SER October 2010. http://www.epa.gov/nsr/ghgdocs/ efficiencies between manufacturers and option levels. The following is a iciboilers.pdf. 80 model types, the ability to achieve description of efficiency improvement ‘‘Evaluating Efficiency and Compliance measures that have been applied to Options for Large Industrial Boilers in California’s Changing Local and State Regulatory Environment,’’ 82 ‘‘Boiler Efficiency Projects-Development of industrial combustion units. 2009 ACEEE Summer Study on Energy Efficiency Issues Papers for GHG Reduction Project Types: The EPA has identified a number of in Industry. Boiler Efficiency Projects,’’ Prepared for the energy efficiency measures, many of 81 ‘‘Climate Leaders GHG Offset Protocol: California Climate Action Registry, January 7, 2009. Industrial Boiler Efficiency (Industrial Boiler http://www.climateactionreserve.org/wp-content/ which have been utilized to date to Applications),’’ EPA, Climate Protection uploads/2009/03/future-protocol-development_ satisfy GHG BACT requirements in Partnerships Division, August 2008, Version 1. boiler-efficiency.pdf.
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87 additional GHG reductions at these to as ‘‘partial CCS.’’ For units subject CO2e emissions profile for the sources. smaller ‘‘off-the-shelf’’ type units, to this standard, this NSPS standard sets Flares are used extensively to dispose whether they are small boilers or IC the minimum requirements for a BACT of: (1) Purged and wasted products from engines, is difficult for a couple of emission limit. 42 U.S.C. 7479(3) (‘‘In refineries, (2) unrecoverable gases reasons. First, implementing a number no event shall application of [BACT] emerging with oil from oil wells, (3) of the efficiency measures described result in emissions of any pollutants vented gases from blast furnaces, (4) previously requires site-specific design which will exceed the emissions unused gases from coke ovens, and (5) and construction criteria, more typically allowed by any applicable standard gaseous wastes from chemical associated with larger scale projects established pursuant to section 7411 or industries. Id. From our review of where these measures can be part of 7412 . . .’’). However, a PSD BACT ‘‘anyway source’’ PSD permitting unit design and manufacture. Second, analysis is a case-by-case analysis that activity for these types of industries, ‘‘off-the-shelf’’ units typically cannot be considers several factors before these waste gas streams are usually substantially modified or tampered with determining the ‘‘maximum degree of coincidental to a larger project in order to be guaranteed to meet their reduction’’ that is achievable for a component driving the PSD certified performance standards. Many particular source. In the context of some applicability for the project. As an of the energy efficiency measures PSD permit applications, such as those example, for an iron and steel facility, that predate the October 2015 NSPS or described previously involve significant the addition of a blast furnace would those for other types of sources, CCS has additions and/or modifications to the likely trigger applicability for PSD for a not been selected as BACT because it basic unit, which also may not be number of criteria pollutants, and also was not found to be technically feasible have significant GHG emissions in terms technically or economically viable for or the costs of CCS have made the smaller unit applications. of direct combustion related CO2 application of the technology emissions (large blast furnace units 88 b. Carbon Capture and Storage economically unachievable. CCS is typically will exceed 75,000 tpy CO2e most likely to be a viable BACT emissions). Associated with this furnace For the purposes of the initial step of candidate for projects involving very unit, however, are likely to be off-gas a BACT analysis for GHGs, the EPA large CO2 emission sources that already streams, possibly containing CH4 gas, classifies CCS as an add-on pollution trigger GHG BACT review at the current which also then become subject to control technology that is ‘‘available’’ 75,000 tpy CO2e GHG permitting level. BACT review as part of the overall for facilities emitting CO2 in large CCS technologies may not be project. amounts, including fossil fuel-fired technically feasible or economically A common method for minimizing power plants and industrial facilities achievable for lower emitting stationary emissions from flares is through good with high-purity CO2 streams (e.g., sources—i.e., those below the 75,000 combustion practices. When these waste hydrogen production, ammonia tpy CO2e GHG threshold—and for gas streams are combusted in either a production, natural gas processing, sources that emit CO2 in a dilute flare or a thermal oxidizer, CH4 in the emission stream. ethanol production, ethylene oxide waste gas stream is converted to CO2, production, cement production and iron c. Gas Recovery and Utilization typically at efficiency levels greater than and steel manufacturing).83 CCS is a 96.5 percent.89 Since CO is a GHG with The collection and combustion or 2 promising technology with the potential less radiative force than CH , this utilization of either industrial process 4 for substantially reducing CO2 technique produces a lower overall GHG waste gas or biogas, both streams which emissions. In October 2015, EPA issued emissions increase on a CO e basis. can contain CH , is a GHG BACT control 2 a final NSPS84 for new fossil-fueled 4 Assuming a combustion efficiency of technique that has been required as power plants. The EPA found that a 96.5 percent and CH being the BACT in PSD permits addressing GHG 4 highly efficient supercritical boiler principal GHG of concern in the waste emissions at oil and gas production implementing partial CCS is the Best facilities, refineries, landfills, and gas stream, the combustion process can System of Emission Reduction (BSER) chemical plants. Flares are commonly result in reductions of CO2e emissions for newly constructed steam generating of approximately 86 percent (assumes a 85 used to control VOC emissions as part units. The final NSPS requires that of ‘‘anyway source’’ PSD permits for GWP value of 25 for CH4). newly constructed steam generating projects that include a process that Utilization of process waste gas, EGUs meet an emission standard produces the waste gas emissions that which often can contain CH4, for on-site consistent with the implementation of a must be controlled. Combustion of the energy or off-site sale and use can CCS system capturing less than 30 waste gas stream avoids simply venting provide additional GHG benefits beyond percent of the CO2 emissions from the the VOC emissions to the atmosphere, simply flaring. Like flaring, the 86 plant. This level of control is referred and as described later in this preamble collection and utilization of the waste can also have a beneficial impact on the gas can serve as a BACT control 83 ‘‘PSD and Title V Permitting Guidance for technique that effectively converts CH4 Greenhouse Gases,’’ EPA, Office of Air Quality 87 ‘‘Partial CCS’’ is the implementation of CCS to CO2 through a combustion unit with Planning and Standards, Research Triangle Park, technology to capture only a portion of the CO2 the net benefits realized on a CO2e NC, EPA–457/B–11–001, p. 32, March 2011. emission from a stationary source—typically some emissions basis. In addition, utilization 84 Final Rulemaking titled ‘‘Standards of amount less than 90 percent of the CO2 and often of the gas has the potential to avoid Performance for Greenhouse Gas Emissions from by treating only a portion of the sources emission New Stationary Sources: Electric Utility Generating stream. ‘‘Full CCS’’ is the capture of more than 90 additional GHG emissions associated Units’’ (80 FR 64513, October 23, 2015). percent of the sources CO2—typically accomplished with supplemental on-site fossil-fuel 85 For newly constructed intermediate and by treating the sources entire emission stream. usage. baseload stationary combustion turbines, the final 88 However, this was not always the outcome in For example, at sites such as natural NSPS requires meeting an emission standard PSD permits that pre-date the October 2015 NSPS. consistent with the performance of modern, For example, in November 2014, the EPA issued a gas processing plants, refineries, or at efficient Natural Gas Combined Cycle (NGCC) PSD permit for GHGs for the Nuevo Midstream, technology. LLC—Ramsey Gas Plant in Orla, Reeves County, 89 AP–42, Fifth Edition, Volume I, Chapter 13: 86 EPA Fact Sheet on Carbon Dioxide Capture and Texas that assumes use of partial CCS as BACT to Miscellaneous Sources, Section 13.5 ‘‘Industrial Sequestration, http://www3.epa.gov/climatechange/ capture 35 percent of the CO2 emissions from the Flares,’’ EPA, April 2015. http://www.epa.gov/ttn/ ccs/. Ramsey IV and VI plants amine still vents. chief/ap42/ch13/final/C13S05_4-20-15.pdf.
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other facilities where the collected are deployed are generally CH4 fugitive to include those requirements in the waste gas can be used to fuel on-site losses from associated piping and facility’s title V permit.93 These costs equipment or made available for sale or natural gas delivery networks, or include preparing the permitting other uses, there may be alternatives to equipment leaks at compressor or application, supporting analyses and simply flaring the gas. In addition, the pumps that move natural gas product. various other aspects of the review and on-site use of the collected gas in lieu These sources tend to be most submission of the permit application as of additional fossil-fuel use can also commonly encountered at PSD- it pertains to GHGs. These estimates do lead to a reduction in the facility’s GHG triggering projects involving the oil and not include what can be significant emissions, although GHG emissions gas sector, primarily in the production, additional costs for the GHG BACT from any off-site sale and use of the processing and transmission subsectors. control that is ultimately adopted and collected gas are completely excluded However, anywhere combustion units implemented by the permitted facility from the seller facility’s calculated GHG utilize natural gas as fuel, they can also since BACT, and ultimately the costs, emissions. have associated leaks in the piping can vary from site to site based on site Another example where gas collection network associated with the unit specific factors that are difficult to and utilization has applications for GHG configuration. In both these general predict with any specificity or certainty BACT is landfills, where large amounts cases where LDAR has been selected as in advance. We also estimate it costs the of CH4 gas generated through waste a BACT for GHG emissions dominated permitting authority approximately decomposition can, at properly by CH4, the fugitive CH4 losses have $5,000 for regulatory review and designed sites, be collected through been ancillary to the main GHG processing costs related to the GHG biogas collection wells and used to run emission points in the project, typically BACT review for a PSD modification IC engines or microturbines that a single or combination of large fossil project and the associated title V produce energy for onsite usage or sale fuel combustion units. At all of the revisions costs to include those to the electric grid. As mentioned earlier ‘‘anyway source’’ permits we have requirements in the facility’s title V in Section V.D.4 of this preamble, reviewed that required LDAR as GHG permit. BACT, combustion units triggered the landfills that are subject to PSD E. Proposed GHG SER and Request for BACT requirement for conventional permitting for their NMOC emissions Comment will likely have CH4 emissions well in pollutants as well as GHGs (principally After consideration of several factors, excess of 75,000 tpy CO2e, such that CO2 from combustion). The fugitive CH4 BACT strategies involving gas losses associated with the combustion we are proposing to establish a GHG utilization and recovery may be found unit projects were included in the BACT SER of 75,000 tpy CO2e. Establishing a applicable for both non-GHG and GHG review for the GHG emissions increases de minimis exemption threshold emissions from the landfill. for the project. requires both policy and legal Another application of LDAR has judgments to determine what d. Leak Detection and Repair Measures been in the power plant sector. In this constitutes a ‘‘gain of trivial value’’ and Leak detection and repair (LDAR) sector, fugitive leaks of SF6 gas from ‘‘pointless expenditure of effort.’’ In an systems have been used as GHG BACT ancillary circuit breaker equipment effort to identify an appropriate SER for controls for both fugitive CH4 losses and associated with power plant projects GHGs, we considered the approaches SF6 emission losses from electrical have been subject to GHG BACT review that the EPA has previously used to equipment. Typically, and as previously where the principle PSD-triggering identify de minimis levels for other described in more detail in the summary event involved the installation of pollutants in the PSD program, but we of our review of ‘‘anyway source’’ power-generating combustion units. SF6 have found that a new approach is permits in Section V.D.2 of this is used as an electrical insulator and needed for GHGs. To develop this preamble, these fugitive sources were interrupter in equipment that transmits approach, we have considered the legal associated with a PSD project that and distributes electricity.91 Fugitive basis for establishing de minimis involved a larger stationary source unit emissions of SF6 can escape from gas- exemptions under the D.C. Circuit’s or process, such as combustion unit insulated substations and switchgear Alabama Power opinion and the factors installations at a power plant or a large through seals, especially from older the Court called for the agency to gas or oil production/process unit that equipment. The gas can also be released consider. These include the context in contained associated fugitive release during equipment manufacturing, which a SER for GHGs would apply to points, such as piping or valves. The installation, servicing and disposal. The determine only whether BACT applies GHG reduction potential for LDAR EPA estimates that where consistently to the pollutant GHGs at a source that systems can be highly variable implemented in the power plant sector, triggers PSD based on other pollutant depending on the site-specific design applications of LDAR systems could emissions. Other factors we considered 92 and implementation procedures. The reduce SF6 emissions by 20 percent. are the nature of the pollutant and the dangers caused by increases in that EPA has identified VOC applications for 6. Costs of GHG BACT Review LDAR systems that can achieve VOC pollutant, the nature and purposes of emissions reductions in the 45 to 70 We have estimated that it costs an the regulatory program, the gains percent range for various equipment individual source approximately achieved from regulating GHG $24,000 to undergo GHG BACT review types (since CH4 would typically be part emissions through the PSD program at of the same waste gas stream, these level for a PSD modification project and the or below a certain level, and of reductions in fugitive VOC emissions associated title V permit revision costs administrative and implementation would be expected for fugitive CH4 burdens of regulating at or below such 91 emissions as well).90 The emission ‘‘Inventory of U.S. Greenhouse Gas Emissions levels. We developed findings relevant and Sinks: 1990–2013,’’ Section 4.24. EPA 430–R– to these factors through a four-part sources for CH4 where these methods 15–004. April 15, 2015. http://www3.epa.gov/ climatechange/ghgemissions/ technical analysis of GHG-emitting 90 ‘‘Leak Detection and Repair: A Best Practices usinventoryreport.html. 92 93 Guide.’’ EPA–305–D–07–001. EPA Office of SF6 Emissions Reduction Partnership for Information related to the associated individual Compliance, Office of Enforcement and Compliance Electric Power Systems, http://www3.epa.gov/ and programmatic burden at the proposed GHG SER Assurance, October 2007. highgwp/electricpower-sf6/basic.html. level is provided in Section VI of this preamble.
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sources, PSD permitting information, that there may be value in applying SER level below 75,000 tpy CO2e. Thus, and GHG emissions reduction strategies BACT to GHGs at a lower SER. we propose to conclude that the likely to be considered in a BACT In addition to finding broad coverage burdens of regulation at a GHG SER review for those sources. of sources in the major GHG emissions level between 30,000 and 75,000 tpy Based on all the information obtained source categories using a 75,000 tpy CO2e would yield a gain of trivial or no from the various data reviews and CO2e threshold, we found that the value from both a programmatic and analyses summarized in Section V.D.1 ‘‘anyway source’’ permitting experience individual project-level perspective. of this preamble, taking into account the involving GHG BACT reviews to date For PSD modification projects that factors mentioned previously, we are since GHGs became subject to PSD has increase GHGs by less than 30,000 tpy proposing a SER of 75,000 tpy CO2e for not imposed unreasonable CO2e, we found virtually no value in GHGs. The following discussion administrative and enforcement applying the GHG BACT requirement. describes how each of the key findings burdens. State and local permitting We found through both our equivalency together led to and support our authorities, as well as affected analysis and permitting reviews that proposed GHG SER value of 75,000 tpy industries, have successfully these smaller emitting unit projects will implemented PSD permitting for GHGs typically not qualify as ‘‘anyway CO2e. First, our actual, historical experience at a 75,000 tpy CO2e threshold. source’’ projects by themselves. In Second, our investigation into of GHG BACT reviews occurring at a addition, we found that many smaller ‘‘anyway source’’ PSD permits that did 75,000 tpy CO e level for sources under emissions units will often be pulled into 2 not go through GHG BACT review under Step 1 of the Tailoring Rule provided us the GHG BACT analysis because they the Tailoring Rule Step 1 permitting are ancillary units to a larger valuable insight into the affected level of 75,000 tpy CO2e revealed only combustion unit that emits well above sources and value of GHG BACT review a few cases where a GHG SER level 75,000 tpy CO e; examples include at that permitting level. When 2 below 75,000 tpy CO2e may have emission units such as flares, thermal considered in the context of individual resulted in additional GHG BACT oxidizers, emergency generators, and sources and the collective population of reviews. Considering the limited fugitive emission leaks. Since the types sources subject to PSD, the degree of additional cases where GHG BACT of units adding GHGs in amounts less GHG reductions achievable through review could apply at a GHG SER below than 30,000 tpy CO e would not likely application of GHG controls to new 2 75,000 tpy CO2e and the limited degree trigger PSD at all or would already be sources and modifications that increase of emissions reductions that might be covered because of other changes GHG emissions by more than 75,000 tpy achieved in each case, we propose to occurring at the same time, lowering the CO2e is meaningful, and thus has more conclude that the burdens of subjecting GHG threshold to 30,000 tpy CO2e than ‘‘trivial’’ value. The current 75,000 such projects to case-by-case BACT would subject few, if any, additional tpy CO2e threshold has resulted in the review for GHGs would yield a gain of projects to the GHG BACT requirements. PSD BACT requirement applying to trivial or no value. In cases where a project theoretically GHGs in the vast majority of the actual Our review revealed only a handful of could increase emissions of a pollutant ‘‘anyway source’’ PSD permits covering PSD modification projects on a yearly besides GHGs enough to trigger PSD, the the type of units for which GHG BACT basis nationwide that can be expected to project would involve emission units review would be expected to achieve increase GHG emissions in the range such as IC engines. There is virtually no meaningful emissions reductions. We from 30,000 to 75,000 tpy CO2e. Based value obtained in conducting a GHG also found that the types of GHG on our review of permitting data at BACT review of such a unit. We found sources that have been addressed in ‘‘anyway sources’’ and considering the that ‘‘off-the-shelf’’ combustion units, those GHG BACT reviews represent the nature of units emitting GHGs between such as IC engines, are generally most important industry sectors in these values, we expect for the near to meeting manufacturers’ performance terms of national GHG emissions medium term that energy efficiency and efficiency compliance standards contribution. These include source measures will continue to be the most established by DOE and the EPA for categories such as power plants, predominant GHG BACT mitigation new units with only marginal variations refineries, chemical production strategy that could be applicable to in efficiency ratings on newly facilities, and oil and gas production sources with the potential to emit purchased units. Also, we do not expect sites. While most of the GHG emissions between 30,000 and 75,000 tpy CO2e. At that GHG BACT review for IC engines from these sources, as well as the a project scale, if we were to consider would produce any reductions for GHGs ‘‘anyway source’’ PSD triggering actions, a single hypothetical, combustion- beyond that resulting from the NSPS are related to large, fossil-fueled related project with a GHG emissions compliance standards that already exist combustion units, our investigation into increase of 74,999 tpy CO2e (just under for these new units. Thus, the gain from non-combustion sources also revealed the 75,000 tpy CO2e proposed GHG SER applying BACT to GHG emissions that the most important, non- level) and a maximum energy efficiency would yield a gain of virtually no value combustion related GHG-emitting gain through GHG BACT review of 7 and be a pointless expenditure of effort. sources, such as landfills, cement percent described above, the maximum This is even more apparent when plants, refineries, and nitric acid plants, marginal difference in GHG emissions considered in light of the administrative have process emissions well in excess of that could result from applying BACT to burdens of conducting a case-by-case the 75,000 tpy CO2e level. In summary, GHGs is approximately 5,500 tpy CO2e. BACT analysis for GHGs at such based on information from previous Given the limited number of projects sources. Thus, the EPA is not permitting decisions using the 75,000 expected in this 30,000 to 75,000 tpy considering establishing a GHG SER tpy CO2e applicability level for GHG CO2e range and the limited amount of level below 30,000 tpy CO2e. BACT review at ‘‘anyway sources,’’ we emissions reductions that could We are soliciting comment on the did not see any sources within major theoretically be achieved at each source, extent to which our proposed GHG SER GHG source categories that were from a programmatic perspective, there level of 75,000 tpy CO2e reflects a level ‘‘missing’’ BACT limits for GHGs in is little to be gained in terms of overall below which the burdens of applying permits issued to ‘‘anyway sources,’’ reduction in GHG emissions from the BACT requirement to GHGs would which would have been an indicator applying GHG BACT review at a GHG ‘‘yield a gain of trivial or no value’’ and
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thus would be a ‘‘pointless expenditure have different heat-trapping capacities. considerations of energy, of effort’’ when applied to all of the The GWP that has been determined for environmental, and economic impacts affected units and sources. We are also each compound reflects its heat- into the BACT requirement, we think soliciting comment on whether a value trapping capacity relative to CO2. The that allowing consideration of those between 30,000 and 75,000 tpy CO2e, mass of emissions of a constituent factors across six gases will result in specifically such as 30,000 tpy or 45,000 compound is multiplied by its GWP to decisions that more appropriately tpy CO2e, would better represent a de determine the emissions in terms of account for those impacts at the source. minimis threshold for applying the CO2e. A source’s emissions of all In summary, we see no statutory BACT requirement to GHGs. We compounds in terms of CO2e are requirement or programmatic encourage commenters to consider the summed to determine the source’s total advantages for considering a GHG SER 94 following in submitting comments. GHG emissions. This construct differs value that incorporates a mass-based Comments, arguments, and supporting from other pollutant SERs based solely component; however, we welcome data for a specific GHG SER level other on a mass basis; however, we believe, as comments on whether such a need than 75,000 tpy CO e should identify a we did in the Tailoring Rule, that the 2 exists and how such a component more appropriate level and explain why CO2e metric is consistent with the that specific level would be better. definition of the pollutant as defined in would function for GHG BACT Commenters are encouraged to provide the Administrator’s endangerment and applicability purposes. information as to the likely number and contribution findings regarding GHGs Lastly, we are also requesting any type of new or modified emission (74 FR 66496) and that by incorporating specific comments related to the sources and units that would trigger the GWP values, best addresses the administrative and enforcement burdens PSD and be subject to the GHG BACT relevant environmental endpoint, which associated with implementing GHG requirement at the suggested alternative is the radiative forcing of the GHGs BACT review at the proposed GHG SER GHG SER level. Comments should also emitted. We also see no requirement for level (75,000 tpy CO2e), or at a address what source categories would using a mass-based calculation method suggested alternative GHG SER level. be affected, what types of control for the GHG SER, such as we Due to the relatively short history of technique would be considered in the determined necessary in the Tailoring applying the BACT requirement to GHG BACT review, the expected degree Rule. The determination that a mass- GHGs (as compared to PSD permitting of GHG reductions achievable from such based calculation method was a overall), the limited experience in control techniques, and the anticipated necessary first step under the Tailoring applying BACT to GHGs permitting in burden to permitting authorities and rule was due to the statutory 100 and some sectors, and the overall sources of conducting a BACT analysis 250 tpy levels in the statutory definition uncertainties in predicting exact levels at the specific alternative level. of ‘‘major emitting facility.’’ 95 The SERs of future PSD activity, we solicit any In soliciting comment for a SER are based on EPA’s inherent authority to comments pertaining specifically to the between 30,000 and 75,000 tpy CO2e, identify a de minimis level of GHG we recognize that sources and others in emissions for purposes of determination administrative and programmatic the public may have access to applicability of the statutory BACT burdens associated with the proposed information that is not available to the provisions of the CAA. These provisions GHG SER and applying the BACT Agency and that may inform an in the Act do not include a mass-based review process to GHGs emitted at that appropriate SER level. Therefore, we are emissions applicability threshold. In level or at a suggested alternative level. specifically soliciting comment on and addition, the emissions thresholds in We also solicit comments from all requesting data for areas in our the definition of major stationary source parties, including the regulated technical analysis where commenters that influenced our reasoning in the community and permitting authorities, believe such information will provide Tailoring rule are no longer applicable as well as commenters supporting an support for adjusting our applied to GHGs in light of the U.S. Supreme alternative threshold, as to the assumptions. However, commenters Court’s decision in UARG. administrative and enforcement burdens should keep in mind that the universe In addition to consistency with the of establishing a de minimis threshold at of future PSD permitting is constrained Administrator’s endangerment and the suggested alternative level. by the U.S. Supreme Court’s decision contribution findings, there are limiting the program to ‘‘anyway programmatic and policy advantages to VI. What would be the economic sources’’ and modifications at ‘‘anyway using the ‘‘sum-of-six’’ construct based impacts of the proposed rule? sources.’’ The GHG BACT requirement on CO2e for purposes of the GHG SER The main focus of the Economic is potentially applicable only to sources BACT review. One significant advantage Impact Analysis (EIA) is the cost savings and modifications that would otherwise to this construct is that it allows more to permitting authorities and affected trigger PSD requirements based on flexibility to sources for designing and sources due to ‘‘anyway sources’’ that emissions of pollutants other than implementing control strategies that GHGs. maximize reductions across multiple are below the proposed de minimis GHG We are proposing a GHG SER value GHGs. From a programmatic standpoint, SER not having to go through GHG BACT review. If not for provisions we based on the GHG metric of CO2e, the CO2e metric facilitates permitting representing the single air pollutant authorities’ review and consideration of are proposing to remove in this proposal defined as the aggregate group of the six the combined effect of the six individual and that currently remain in the EPA’s well-mixed greenhouse gases (CO2, N2O, GHGs when sources emit any one or definition of ‘‘subject to regulation’’ at CH4, HFCs, PFCs and SF6). As explained combination of the individual gases. this time, under the present definition earlier, this aggregate pollutant is Also, given that Congress built in of ‘‘significant’’ in the PSD regulations, measured in terms of ‘‘carbon dioxide any GHG emissions increase would equivalent’’ or ‘‘CO2e’’ emissions, which 94 See the accompanying proposed regulatory text require a newly constructed major is a metric that allows all the to this preamble at 40 CFR 51.666 (b)(31) and 40 source of another regulated NSR compounds comprising GHGs to be CFR 52.21(b)(32) for further details on the pollutant, or a major modification at an calculation of CO2e emissions. evaluated on an equivalent basis despite 95 See 75 FR 31531 for background on why this existing facility significantly increasing the fact that the different compounds step was needed in Tailoring Rule. another pollutant, to undergo PSD GHG
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BACT review.96 Therefore, the EIA relative to no GHG SER for state, local, We request comment on what we includes estimated costs relative to a and tribal permitting authorities is described in our Preliminary Views ‘‘no-action’’ scenario where the current estimated at $2,632 per permit for Memo as the ‘‘most efficient and least functioning GHG permitting level of adding GHG requirements to a new burdensome way to accomplish such 75,000 tpy CO2e would no longer be permit, and $504 per permit for revisions to state, [local], or tribal applicable and any increase in GHG revisions to existing permits. At the programs’’ to meet the SIP or TIP 97 emissions at sources otherwise subject proposed GHG SER of 75,000 tpy CO2e, submittal requirements, as applicable. to PSD would trigger the requirement title V program-wide avoided costs for Furthermore, we ask for comments on for a GHG BACT analysis. The proposed permitting authorities totals whether the Administrator should rule would remove the requirement of approximately $20,000 per year. shorten the 3-year time period required conducting the GHG BACT review, as Total annual regulatory cost avoided under 40 CFR part 51.166(a)(6) (and well as the need to include the relative to no GHG SER for sources for section 110(a)(1) of the CAA, to the requirements resulting from this GHG both PSD and title V programs together extent applicable), for each state, or BACT review in a source’s title V amounts to less than $890,000 at the local permitting authority to revise its permit, for sources with GHG emissions proposed 75,000 tpy CO2e GHG SER SIP or TIP (or make a new submission). increases less than the proposed GHG level. Total annual avoided costs for For purposes of the title V program, SER. A summary of the avoided costs permitting authorities for both PSD and 40 CFR part 70.4(a) states in relevant relative to the ‘‘no-action’’ scenario for title V programs together is expected to part that: ‘‘If part 70 is subsequently both PSD and title V programs based on be less than $185,000 at the proposed revised such that the Administrator the proposed 75,000 tpy CO2e GHG SER 75,000 tpy CO2e GHG SER level. This determines that it is necessary to require is described in the following rulemaking does not impose economic a change to an approved State program, paragraphs. Details related to the EIA impacts on any sources or permitting the required revisions to the program are documented in the report titled authorities, but should instead be shall be submitted within 12 months of ‘‘Economic Impact Analysis for viewed as leading to savings for the final changes to part 70 or within Revisions to the Prevention of ‘‘anyway sources’’ and permitting such a period as authorized by the Significant Deterioration and Title V authorities. Because no businesses or Administrator.’’ Since we believe that Greenhouse Gas Permitting Regulations governmental entities are expected to the changes being proposed, once and Establishment of a Significant incur positive costs as a result of this finalized, may require changes to many Emissions Rate for Greenhouse Gas rule, there is not a significant impact on EPA-approved state title V programs, we Emissions Under the Prevention of a substantial number of small entities. also ask for comments on the most Significant Deterioration Program: Because the savings are small and efficient way to accomplish those title V Proposed Rule.’’ This report is available spread among many sources, the market program revisions and what time period in the rulemaking docket. impacts of this rule will be minimal. would be appropriate for those For affected sources, the avoided revisions. VII. How should state, local and tribal permitting cost or savings for PSD Furthermore, SIP revisions for the authorities adopt the regulatory permits is approximately $23,532 per PSD program and revisions to title V revisions included in this action? permit (in 2014 dollars). Total annual programs that still include the Step 2 avoided cost program-wide is under Consistent with the PSD regulations provisions may be needed if any $870,000 for sources that would not for SIP-approved programs at 40 CFR permitting authorities prefer to retain have to go through GHG BACT review. 51.166 and the title V regulations for under state law the construction or State, local and tribal permitting title V program approvals at 40 CFR part operating permit requirements authorities are estimated to expend 70, the EPA expects that many state, equivalent to the PSD and title V $4,400 per permit to conduct a GHG local and tribal permitting authorities permitting requirements for Step 2 BACT review in the context of will amend their respective PSD and sources that are no longer approvable reviewing a PSD permit application for title V permitting regulations and seek parts of a PSD or title V program under a source with GHG emissions in the revisions of their SIPs, TIPs or title V federal law. In the Preliminary View applicable range. Thus, annual savings program approvals, as applicable, to Memo, we stated that ‘‘we do not read for permitting authorities program-wide incorporate (once finalized) the the [UARG v EPA] U.S. Supreme Court are less than $165,000 at a 75,000 tpy regulatory changes consistent with those decision to preclude states from CO2e GHG SER. contained in this proposal. retaining permitting requirements for We anticipate sources subject to title For PSD, 40 CFR part 51.166(a)(6)(i) sources of GHG emissions that apply V will experience avoided regulatory states that ‘‘any state required to revise independently under state law even costs because they will not have to add its implementation plan by reason of an when those requirements are no longer requirements to their title V permit amendment to section [51.166]. . . shall required under federal law’’ 98 and that resulting from a GHG BACT review. adopt and submit such plan revision to Avoided cost is estimated at the Administrator for approval no later 97 Next Steps and Preliminary Views on the approximately $2,470 per permit for than three years after such amendment Application of Clean Air Act (CAA) Permitting is published in the Federal Register.’’ Programs to Greenhouse Gases Following the addressing GHG requirements in a new Supreme Court’s Decision in UARG v. EPA, permit, and $520 per permit for revising Therefore, any implementation plan that Memorandum from Janet G. McCabe, Acting an existing permit to include defines a source or modification as Assistant Administrator, Office of Air and requirements related to a GHG BACT major based solely on GHGs emissions Radiation, and Cynthia Giles, Assistant will require a revision to conform to the Administrator, Office of Enforcement and limit. Total program-wide savings for Compliance Assurance, U.S. EPA, to Regional title V permitting related to the amendments to 40 CFR part 51.166 Administrators, p. 5, July 24, 2014. 98 proposed GHG SER of 75,000 tpy CO2e proposed in this rule. However, states Next Steps and Preliminary Views on the is less than $20,000 dollars per year for may elect not to incorporate a Application of Clean Air Act (CAA) Permitting significant emissions rate for GHGs into Programs to Greenhouse Gases Following the sources. Regulatory cost avoided Supreme Court’s Decision in UARG v. EPA, their program if they wish to apply Memorandum from Janet G. McCabe, Acting 96 Definition of ‘‘significant,’’ 40 CFR BACT to GHGs at sources emitting or Assistant Administrator, Office of Air and 51.166(b)(23)(ii) and 40 CFR 52.21(b)(23)(ii). increasing this pollutant by any amount. Continued
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‘‘similar to state-law construction would be required to conduct a BACT stationary sources of air pollution. permitting requirements, the [UARG v analysis for GHGs. Therefore, this Instead, the regulatory revisions reduce EPA] U.S. Supreme Court decision does proposed action itself does not compel the number of sources that may be not preclude states from continuing to any specific changes to our permitting subject to the PSD and title V program require that certain types of sources public participation requirements nor due to the sources’ GHG emissions. obtain operating permits meeting does it finalize a particular permit Specifically, this proposed action requirements that apply independently action that may affect the fair treatment revises several regulatory provisions under state law.’’ 99 Therefore, state, and meaningful involvement of all under the federal and state-specific PSD local, or tribal programs wishing to people. Rather, it ensures that the and title V regulations and establishes a retain construction or operating permit Coalition Amended Judgment is GHG SER for the PSD program. requirements equivalent to the PSD and implemented and makes clear in the C. Regulatory Flexibility Act (RFA) title V permitting requirements for Step EPA’s PSD regulations that sources are 2 sources as a matter of state, local or no longer required to submit a PSD I certify that this action will not have tribal law should consult with the EPA permit application if GHGs are the only a significant economic impact on a Regional offices on how best to retain pollutant that the sources emits above substantial number of small entities those requirements as appropriate, the applicable major source thresholds under the RFA. In making this while excluding them from the EPA- or that will increase in major amounts determination, the impact of concern is approved SIPs, TIPs or title V due to a modification of an existing any significant adverse economic programs.100 major sources. Similarly, this proposed impact on small entities. An agency may In cases where state, tribal or local air rule clarifies in the EPA’s title V certify that a rule will not have a pollution control agencies incorporate regulations that a source is not required significant economic impact on a the federal regulations by reference or to apply for title V permit solely because substantial number of small entities if do not have an approved SIP or TIP for it emits or has the PTE GHGs above the the rule relieves regulatory burden, has the PSD program or a title V program major source threshold. no net burden or otherwise has a approval for the title V permitting positive economic effect on the small IX. Statutory and Executive Order requirements, the federal PSD program entities subject to the rule. This rule Reviews at 40 CFR 52.21 and the title V program relieves regulatory burden because it at 40 CFR part 71 apply, respectively. A. Executive Order 12866: Regulatory reduces the number of sources that may Therefore, the EPA anticipates that the Planning and Review and Executive be subject to the PSD and title V revisions included in this proposal will Order 13563: Improving Regulation and program due to the sources’ GHG likely apply automatically to these Regulatory Review emissions. We have, therefore, programs once finalized. concluded that this action will relieve This action is a significant regulatory regulatory burden for all directly VIII. Environmental Justice action that was submitted to the Office regulated small entities. Considerations of Management and Budget (OMB) for review because it raises novel legal or D. Unfunded Mandates Reform Act This action proposes certain revisions policy issues. Any changes made in (UMRA) to the PSD and title V GHG permitting response to OMB recommendations This action does not contain an regulations in response to the June 23, have been documented in the docket. unfunded mandate of $100 million or 2014, UARG v. EPA U.S. Supreme Court The EPA prepared an EIA of the more as described in UMRA, 2 U.S.C. decision and the April 10, 2015, potential costs and benefits associated 1531–1538, and does not significantly or Amended Judgment by the D.C. Circuit with this action, which is discussed in uniquely affect small governments. The in Coalition for Responsible Regulation Section VI of this preamble. This EPA expects that many state, local and v. EPA. To comport with these analysis, ‘‘Economic Impact Analysis for tribal permitting authorities will amend decisions, the proposed revisions would the Revisions to the Prevention of their respective PSD and title V ensure that neither PSD nor title V rules Significant Deterioration and Title V permitting regulations and seek require a source to obtain a permit Greenhouse Gas Permitting Regulations revisions of their SIPs, TIPs or title V solely because the source emits or has and Establishment of a Significant program approvals, as applicable, to the PTE GHGs above the applicable Emissions Rate for Greenhouse Gas incorporate, once finalized, the thresholds. It also establishes a SER for Emissions under the Prevention of regulatory changes consistent with those GHGs that would serve to determine Significant Deterioration Program; in this proposed action. This will result when a source otherwise subject to PSD Proposed Rule,’’ is available in the in a small increase in burden to these rulemaking docket. Radiation, and Cynthia Giles, Assistant entities. However, as discussed in Section VI of this preamble, this Administrator, Office of Enforcement and B. Paperwork Reduction Act (PRA) Compliance Assurance, U.S. EPA, to Regional proposed action is expected to result in Administrators, p. 4, July 24, 2014. This action does not impose any new cost savings and an administrative 99 Id. at 5. information collection burden under the burden reduction for permitting 100 As noted previously, while the UARG decision PRA. The OMB has previously approved authorities. We have therefore and the Amended Judgment determined that the EPA may no longer require a source to obtain a title the information collection activities concluded that there are no unfunded V permit solely because it emits or has the potential contained in the existing regulations mandates greater than $100 million or to emit GHGs above major source thresholds, the and has assigned OMB control number any significant or unique effect on small agency does not read the UARG decision or the 2060–0003 for the PSD program and governments. Amended Judgment to affect other grounds on OMB control numbers 2060–0243 and which a title V permit may be required or the E. Executive Order 13132: Federalism applicable requirements that must be addressed in 2060–0336 for the title V part 70 and title V permits. Thus, as explained previously, the part 71 programs, respectively. This action does not have federalism EPA’s proposed revisions are not intended to This action does not impose an implications. It will not have substantial change the existing title V requirements in that direct effects on the states, on the regard and the EPA would not expect proposed information collection burden because it revisions to the EPA-approved programs to change does not impose a new or revised relationship between the national those requirements, either. information collection burden for government and the states or on the
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distribution of power and the EPA has reason to believe may List of Subjects responsibilities among the various disproportionately affect children, per 40 CFR Part 51 levels of government. the definition of ‘‘covered regulatory Environmental protection, F. Executive Order 13175: Consultation action’’ in section 2–202 of the Executive Order. This action is not Administrative practice and procedure, and Coordination With Indian Tribal Air pollution control, Carbon monoxide, Governments subject to Executive Order 13045 because it does not concern an Greenhouse gases, Intergovernmental This action does not have tribal environmental health risk or safety risk. relations, Lead, Nitrogen dioxide, implications, as specified in Executive Ozone, Particulate matter, Reporting Order 13175. The proposed rule would H. Executive Order 13211: Actions and recordkeeping requirements, Sulfur not impose substantial direct Concerning Regulations That oxides, Transportation, Volatile organic compliance costs on Indian tribal Significantly Affect Energy Supply, compounds. governments nor preempt tribal law. Distribution or Use There are no tribal agencies currently 40 CFR Part 52 implementing the PSD program under a This action is not a ‘‘significant Environmental protection, Air tribal implementation plan under 40 energy action’’ because it is not likely to pollution control, Carbon monoxide, CFR part 51.166 or delegation of the have a significant adverse effect on the Greenhouse gases, Intergovernmental federal PSD program at 40 CFR part supply, distribution or use of energy. relations, Lead, Nitrogen dioxide, 52.21. Only two tribes are implementing Further, we have concluded that this Ozone, Particulate matter, Reporting the title V program, one through the rule is not likely to have any adverse and recordkeeping requirements, Sulfur approval of its title V program under 40 energy effects because to the extent that oxides, Volatile organic compounds. CFR part 70 and one through a this action would affect PSD and title V 40 CFR Part 60 delegation agreement under 40 CFR part permit applicants in the energy supply, 71. In addition and as explained Environmental protection, distribution or use sectors, it would previously, this proposed action relieves Administrative practice and procedure, reduce the permitting burden for such regulatory burden because it reduces the Air pollution control, Greenhouse gases, number of sources that may be subject sectors. Intergovernmental relations, Reporting to the PSD and title V program due to I. National Technology Transfer and and recordkeeping requirements. the sources’ GHG emissions. Advancement Act 40 CFR Part 70 Specifically, this action revises several regulatory provisions under the federal This rulemaking does not involve Environmental protection, and state-specific PSD and title V technical standards. Administrative practice and procedure, regulations and establishes a GHG SER Air pollution control, Greenhouse gases, for the PSD program. If the current PSD J. Executive Order 12898: Federal Intergovernmental relations, Reporting GHG permitting level of 75,000 tpy Actions To Address Environmental and recordkeeping requirements. CO e were to not be applicable, as Justice in Minority Populations and 2 40 CFR Part 71 described in the Preliminary Views Low-Income Populations Memo, any increase in GHG emissions Environmental protection, The EPA believes the human health or at sources otherwise subject to PSD Administrative practice and procedure, environmental risk addressed by this would trigger the requirement for a GHG Air pollution control, Greenhouse gases, action will not have potential BACT analysis and thus increase the Reporting and recordkeeping permitting costs and burden for both disproportionately high and adverse requirements. human health or environmental effects permittees (including entities in tribal Dated: August 26, 2016. areas) and permitting authorities on minority, low-income or indigenous populations. The results of this Gina McCarthy, (including any tribal agencies). Tribal Administrator. programs may need to make minor evaluation are contained in Section VIII changes to their title V program of this preamble titled, ‘‘Environmental For the reasons stated in the approvals and their implementing Justice Considerations’’ for this action. preamble, title 40, Chapter I of the Code regulations, as applicable, to of Federal Regulations is proposed to be K. Determination Under CAA Section amended as follows: incorporate, once finalized, the 307(d) regulatory changes being proposed in PART 51—REQUIREMENTS FOR this action. Nevertheless, we expect the Pursuant to CAA 307(d)(1)(J) and PREPARATION, ADOPTION, AND burden of undertaking those revisions to 307(d)(1)(V), the Administrator SUBMITTAL OF IMPLEMENTATION be minimal as compared to the burden determines that this action is subject to PLANS of applying and reviewing the permits the provisions of section 307(d). Section for GHG-emitting sources that would 307(d)(1)(J) provides that the provisions ■ 1. The authority citation for part 51 otherwise be subject to title V program of section 307(d) apply to promulgation continues to read as follows: without the regulatory revisions or revision of regulations under part C Authority: 42 U.S.C. 7401–7671q. included in this proposed action. Thus, of title I of the CAA (relating to PSD and Executive Order 13175 does not apply protection of visibility), and section Subpart I—Review of New Sources and to this action. 307(d)(1)(V) of the CAA provides that Modifications G. Executive Order 13045: Protection of the provisions of section 307(d) apply to ■ 2. Section 51.166 is amended by: Children From Environmental Health such other actions as the Administrator ■ a. Revising paragraphs (b)(1)(i)(a) and Risks and Safety Risks may determine. (b); The EPA interprets Executive Order X. Statutory Authority ■ b. Revising paragraph (b)(2)(i); 13045 as applying only to those ■ c. Revising paragraph (b)(23)(i); regulatory actions that concern The statutory authority for this action ■ d. Adding paragraph (b)(31); and environmental health or safety risks that is 42 U.S.C. 7401–7671q. ■ e. Revising paragraph (b)(48).
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The revisions and addition read as regulated NSR pollutant from the major subpart A of part 98 of this chapter— follows: stationary source. Global Warming Potentials. * * * * * (b) Sum the resultant value for each § 51.166 Prevention of significant gas to compute a tpy CO e. deterioration of air quality. (23) * * * 2 (i) Significant means, in reference to * * * * * * * * * * (b) * * * a net emissions increase or the potential (48) Subject to regulation means, for (1) * * * of a source to emit any of the following any air pollutant, that the pollutant is (i) * * * pollutants, a rate of emissions that subject to either a provision in the Clean (a) Any of the following stationary would equal or exceed any of the Air Act, or a nationally-applicable sources of air pollutants which emits, or following rates: regulation codified by the Administrator in subchapter C of this chapter, that has the potential to emit, 100 tons per Pollutant and Emissions Rate year or more of any regulated NSR requires actual control of the quantity of pollutant (except the pollutant Carbon monoxide: 100 tons per year emissions of that pollutant, and that greenhouse gases as defined in (tpy) such a control requirement has taken paragraph (b)(31) of this section): Fossil Nitrogen oxides: 40 tpy effect and is operative to control, limit fuel-fired steam electric plants of more Sulfur dioxide: 40 tpy or restrict the quantity of emissions of than 250 million British thermal units Particulate matter: 25 tpy of particulate that pollutant released from the per hour heat input, coal cleaning plants matter emissions regulated activity. Pollutants subject to (with thermal dryers), kraft pulp mills, PM10: 15 tpy regulation include, but are not limited Portland cement plants, primary zinc PM2.5: 10 tpy of direct PM2.5 emissions; to, greenhouse gases as defined in smelters, iron and steel mill plants, 40 tpy of sulfur dioxide emissions; 40 paragraph (b)(31) of this section. primary aluminum ore reduction plants tpy of nitrogen oxide emissions unless * * * * * (with thermal dryers), primary copper demonstrated not to be a PM2.5 smelters, municipal incinerators capable precursor under paragraph (b)(49) of PART 52—APPROVAL AND of charging more than 250 tons of refuse this section PROMULGATION OF per day, hydrofluoric, sulfuric, and Ozone: 40 tpy of volatile organic IMPLEMENTATION PLANS nitric acid plants, petroleum refineries, compounds or nitrogen oxides ■ 3. The authority citation for part 52 lime plants, phosphate rock processing Lead: 0.6 tpy continues to read as follows: plants, coke oven batteries, sulfur Fluorides: 3 tpy recovery plants, carbon black plants Sulfuric acid mist: 7 tpy Authority: 42 U.S.C. 7401 et seq. (furnace process), primary lead smelters, Hydrogen sulfide (H2S): 10 tpy Subpart A—General Provisions fuel conversion plants, sintering plants, Total reduced sulfur (including H2S): 10 secondary metal production plants, tpy ■ 4. Section 52.21 is amended by: chemical process plants (which does not Reduced sulfur compounds (including ■ a. Revising paragraphs (b)(1)(i)(a) and include ethanol production facilities H2S): 10 tpy (b); that produce ethanol by natural Greenhouse gases: 75,000 tpy CO2e ■ b. Revising paragraph (b)(2)(i); fermentation included in NAICS codes Municipal waste combustor organics ■ c. Revising paragraph (b)(23)(i); 325193 or 312140), fossil-fuel boilers (or (measured as total tetra- through octa- ■ d. Adding paragraph (b)(32); combinations thereof) totaling more chlorinated dibenzo-p-dioxins and ■ e. Revising paragraph (b)(49); × ¥6 than 250 million British thermal units dibenzofurans): 3.2 10 megagrams ■ f. Revising paragraph (aa)(1); × ¥6 per hour heat input, petroleum storage per year (3.5 10 tons per year) ■ g. Revising paragraphs (aa)(2)(i) and and transfer units with a total storage Municipal waste combustor metals (iii); capacity exceeding 300,000 barrels, (measured as particulate matter): 14 ■ h. Removing paragraph (aa)(2)(iv)(c); taconite ore processing plants, glass megagrams per year (15 tons per year) ■ i. Revising paragraphs (aa)(2)(v), (viii) fiber processing plants, and charcoal Municipal waste combustor acid gases through (xi); production plants; (measured as sulfur dioxide and ■ j. Removing paragraphs (b) Notwithstanding the stationary hydrogen chloride): 36 megagrams per (aa)(2)(xii)through (xv); source size specified in paragraph year (40 tons per year) ■ k. Revising paragraph (aa)(3) (b)(1)(i)(a) of this section, any stationary Municipal solid waste landfill emissions introductory text; source which emits, or has the potential (measured as nonmethane organic ■ l. Removing paragraph (aa)(3)(iv); to emit, 250 tons per year or more of a compounds): 45 megagrams per year ■ m. Revising paragraph (aa)(4)(i) regulated NSR pollutant (except the (50 tons per year) introductory text; pollutant greenhouse gases as defined in * * * * * ■ n. Revising paragraphs (aa)(4)(i)(a), (d) paragraph (b)(31) of this section); or (31) Greenhouse gases (GHGs) means and (g); * * * * * the air pollutant defined in § 86.1818– ■ o. Revising paragraph (aa)(5); (2) * * * 12(a) of this chapter as the aggregate ■ p. Revising paragraph (aa)(6)(i); (i) Major modification means any group of six greenhouse gases: Carbon ■ q. Removing paragraph (aa)(6)(iii); physical change in or change in the dioxide, nitrous oxide, methane, ■ r. Revising paragraph (aa)(7) method of operation of a major hydrofluorocarbons, perfluorocarbons introductory text; stationary source that would result in: A and sulfur hexafluoride. To represent an ■ s. Revising paragraphs (aa)(7)(i), (iii), significant emissions increase (as amount of GHGs emitted, the term tpy (v), (vi) and (vii); defined in paragraph (b)(39) of this CO2 equivalent emissions (CO2e) shall ■ t. Removing paragraph (aa)(7)(xi); section) of a regulated NSR pollutant (as be used and computed as follows: ■ u. Revising paragraph (aa)(8)(ii)(b)(2); defined in paragraph (b)(49) of this (a) Multiply the mass amount of ■ v. Revising paragraph (aa)(9)(i)(a); section) other than the pollutant emissions (tpy), for each of the six ■ w. Revising paragraphs (aa)(9)(iv) and greenhouse gases (as defined in greenhouse gases in the pollutant GHGs, (v); paragraph (b)(31) of this section); and a by the gas’s associated global warming ■ x. Revising paragraphs (aa)(10)(i) and significant net emissions increase of that potential published at Table A–1 to (ii);
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■ y. Revising paragraphs (i) Major modification means any group of six greenhouse gases: Carbon (aa)(10)(iv)(c)(1) and (2); physical change in or change in the dioxide, nitrous oxide, methane, ■ z. Revising paragraph (aa)(11)(i) method of operation of a major hydrofluorocarbons, perfluorocarbons introductory text; stationary source that would result in: A and sulfur hexafluoride. To represent an ■ aa. Revising paragraphs (aa)(11)(i)(a) significant emissions increase (as amount of GHGs emitted, the term tpy and (b); defined in paragraph (b)(40) of this CO2 equivalent emissions (CO2e) shall ■ bb. Revising paragraph (aa)(12)(i)(a); section) of a regulated NSR pollutant (as be used and computed as follows: ■ cc. Revising paragraphs (aa)(14)(i)(b) defined in paragraph (b)(50) of this (a) Multiply the mass amount of and (d); and section) other than the pollutant emissions (tpy), for each of the six ■ dd. Revising paragraph (aa)(14)(ii) greenhouse gases (as defined in greenhouse gases in the pollutant GHGs, introductory text. paragraph (b)(32) of this section); and a by the gas’s associated global warming The revisions and addition read as significant net emissions increase of that potential published at Table A–1 to follows: regulated NSR pollutant from the major subpart A of part 98 of this chapter— stationary source. Global Warming Potentials. § 52.21 Prevention of significant * * * * * (b) Sum the resultant value for each deterioration of air quality. (23) * * * gas to compute a tpy CO2e. * * * * * (i) Significant means, in reference to * * * * * (b) * * * a net emissions increase or the potential (49) Subject to regulation means, for (1) * * * of a source to emit any of the following any air pollutant, that the pollutant is (i) * * * pollutants, a rate of emissions that subject to either a provision in the Clean (a) Any of the following stationary would equal or exceed any of the Air Act, or a nationally-applicable sources of air pollutants which emits, or following rates: regulation codified by the Administrator has the potential to emit, 100 tons per in subchapter C of this chapter, that Pollutant and Emissions Rate year or more of any regulated NSR requires actual control of the quantity of pollutant (except the pollutant Carbon monoxide: 100 tons per year emissions of that pollutant, and that greenhouse gases as defined in (tpy) such a control requirement has taken paragraph (b)(32) of this section): Fossil Nitrogen oxides: 40 tpy effect and is operative to control, limit fuel-fired steam electric plants of more Sulfur dioxide: 40 tpy or restrict the quantity of emissions of than 250 million British thermal units Particulate matter: 25 tpy of particulate that pollutant released from the per hour heat input, coal cleaning plants matter emissions regulated activity. Pollutants subject to (with thermal dryers), kraft pulp mills, PM10: 15 tpy regulation include, but are not limited portland cement plants, primary zinc PM2.5: 10 tpy of direct PM2.5 emissions; to, greenhouse gases as defined in smelters, iron and steel mill plants, 40 tpy of sulfur dioxide emissions; 40 paragraph (b)(32) of this section. primary aluminum ore reduction plants tpy of nitrogen oxide emissions unless * * * * * (with thermal dryers), primary copper demonstrated not to be a PM2.5 (aa) * * * smelters, municipal incinerators capable precursor under paragraph (b)(50) of (1) * * * of charging more than 250 tons of refuse this section (i) The Administrator may approve per day, hydrofluoric, sulfuric, and Ozone: 40 tpy of volatile organic the use of an actuals PAL for any nitric acid plants, petroleum refineries, compounds or nitrogen oxides existing major stationary source if the lime plants, phosphate rock processing Lead: 0.6 tpy PAL meets the requirements in plants, coke oven batteries, sulfur Fluorides: 3 tpy paragraphs (aa)(1) through (15) of this recovery plants, carbon black plants Sulfuric acid mist: 7 tpy section. The term ‘‘PAL’’ shall mean (furnace process), primary lead smelters, Hydrogen sulfide (H2S): 10 tpy ‘‘actuals PAL’’ throughout paragraph fuel conversion plants, sintering plants, Total reduced sulfur (including H2S): 10 (aa) of this section. secondary metal production plants, tpy (ii) Any physical change in or change chemical process plants (which does not Reduced sulfur compounds (including in the method of operation of a major include ethanol production facilities H2S): 10 tpy stationary source that maintains its total that produce ethanol by natural Greenhouse gases: 75,000 tpy CO2e source-wide emissions below the PAL fermentation included in NAICS codes Municipal waste combustor organics level, meets the requirements in 325193 or 312140), fossil-fuel boilers (or (measured as total tetra- through octa- paragraphs (aa)(1) through (15) of this combinations thereof) totaling more chlorinated dibenzo-p-dioxins and section, and complies with the PAL × ¥6 than 250 million British thermal units dibenzofurans): 3.2 10 megagrams permit: × ¥6 per hour heat input, petroleum storage per year (3.5 10 tons per year) (a) Is not a major modification for the and transfer units with a total storage Municipal waste combustor metals PAL pollutant; capacity exceeding 300,000 barrels, (measured as particulate matter): 14 (b) Does not have to be approved taconite ore processing plants, glass megagrams per year (15 tons per year) through the PSD program; and fiber processing plants, and charcoal Municipal waste combustor acid gases (c) Is not subject to the provisions in production plants; (measured as sulfur dioxide and paragraph (r)(4) of this section (b) Notwithstanding the stationary hydrogen chloride): 36 megagrams per (restrictions on relaxing enforceable source size specified in paragraph year (40 tons per year) emission limitations that the major (b)(1)(i)(a) of this section, any stationary Municipal solid waste landfill emissions stationary source used to avoid source which emits, or has the potential (measured as nonmethane organic applicability of the major NSR program). to emit, 250 tons per year or more of a compounds): 45 megagrams per year (iii) Except as provided under regulated NSR pollutant (except the (50 tons per year) paragraph (aa)(1)(ii)(c) of this section, a pollutant greenhouse gases as defined in * * * * * major stationary source shall continue paragraph (b)(32) of this section); or (32) Greenhouse gases (GHGs) means to comply with all applicable Federal or * * * * * the air pollutant defined in § 86.1818– State requirements, emission (2) * * * 12(a) of this chapter as the aggregate limitations, and work practice
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requirements that were established prior the following information to the paragraph (b)(48) of this section) of the to the effective date of the PAL. Administrator for approval: PAL pollutant for each emissions unit at (2) * * * * * * * * the source; plus an amount equal to the (i) Actuals PAL for a major stationary (4) * * * applicable significant level for the PAL source means a PAL based on the (i) The Administrator is allowed to pollutant under paragraph (b)(23) of this baseline actual emissions (as defined in establish a PAL at a major stationary section or under the Act, whichever is paragraph (b)(48) of this section) of all source, provided that at a minimum, the lower. When establishing the actuals emissions units (as defined in paragraph requirements in paragraphs (aa)(4)(i)(a) PAL level, for a PAL pollutant, only one (b)(7) of this section) at the source, that through (g) of this section are met. consecutive 24-month period must be emit or have the potential to emit the (a) The PAL shall impose an annual used to determine the baseline actual PAL pollutant. emission limitation expressed on a mass emissions for all existing emissions basis in tons per year, or expressed in units. However, a different consecutive * * * * * tons per year CO2e for a GHG PAL, that 24-month period may be used for each (iii) Small emissions unit means an is enforceable as a practical matter, for different PAL pollutant. Emissions emissions unit that emits or has the the entire major stationary source. For associated with units that were potential to emit the PAL pollutant in each month during the PAL effective permanently shut down after this 24- an amount less than the significant level period after the first 12 months of month period must be subtracted from for that PAL pollutant, as defined in establishing a PAL, the major stationary the PAL level. The reviewing authority paragraph (b)(23) of this section or in source owner or operator shall show shall specify a reduced PAL level(s) in the Act, whichever is lower. that the sum of the monthly emissions tons per year (or tons per year CO2e for * * * * * from each emissions unit under the PAL a GHG PAL) in the PAL permit to (v) Plantwide applicability limitation for the previous 12 consecutive months become effective on the future (PAL) means an emission limitation is less than the PAL (a 12-month compliance date(s) of any applicable expressed on a mass basis in tons per average, rolled monthly). For each Federal or State regulatory year, or expressed in tons per year CO2e month during the first 11 months from requirement(s) that the reviewing for a GHG emission limitation, for a the PAL effective date, the major authority is aware of prior to issuance pollutant at a major stationary source, stationary source owner or operator of the PAL permit. For instance, if the that is enforceable as a practical matter shall show that the sum of the preceding source owner or operator will be and established source-wide in monthly emissions from the PAL required to reduce emissions from accordance with paragraphs (aa)(1) effective date for each emissions unit industrial boilers in half from baseline through (15) of this section. under the PAL is less than the PAL. emissions of 60 ppm NOX to a new rule * * * * * * * * * * limit of 30 ppm, then the permit shall contain a future effective PAL level that (viii) PAL major modification means, (d) The PAL shall include fugitive is equal to the current PAL level notwithstanding paragraphs (b)(2) and emissions, to the extent quantifiable, reduced by half of the original baseline (b)(3) of this section (the definitions for from all emissions units that emit or emissions of such unit(s). major modification and net emissions have the potential to emit the PAL increase), any physical change in or pollutant at the major stationary source. * * * * * change in the method of operation of the * * * * * (7) Contents of the PAL permit. The PAL source that causes it to emit the (g) The owner or operator of the major PAL permit must contain, at a PAL pollutant at a level equal to or stationary source with a PAL shall minimum, the information in greater than the PAL. comply with the monitoring, paragraphs (aa)(7)(i) through (x) of this recordkeeping, and reporting (ix) PAL permit means the major NSR section. requirements provided in paragraphs permit, the minor NSR permit, or the (i) The PAL pollutant and the (aa)(12) through (14) of this section for State operating permit under a program applicable source-wide emission each emissions unit under the PAL that is approved into the State limitation in tons per year, or in tons through the PAL effective period. Implementation Plan, or the title V per year CO2e for a GHG PAL. permit issued by the Administrator that * * * * * * * * * * establishes a PAL for a major stationary (5) Public participation requirements (iii) Specification in the PAL permit source. for PALs. PALs for existing major that if a major stationary source owner stationary sources shall be established, (x) PAL pollutant means the pollutant or operator applies to renew a PAL in renewed, or increased through a for which a PAL is established at a accordance with paragraph (aa)(10) of procedure that is consistent with major stationary source. this section before the end of the PAL §§ 51.160 and 51.161 of this chapter. effective period, then the PAL shall not (xi) Significant emissions unit means This includes the requirement that the an emissions unit that emits or has the expire at the end of the PAL effective Administrator provide the public with period. It shall remain in effect until a potential to emit a PAL pollutant in an notice of the proposed approval of a amount that is equal to or greater than revised PAL permit is issued by a PAL permit and at least a 30-day period reviewing authority. the significant level (as defined in for submittal of public comment. The paragraph (b)(23) of this section or in Administrator must address all material * * * * * the Act, whichever is lower) for that comments before taking final action on (v) A requirement that, once the PAL PAL pollutant, but less than the amount the permit. expires, the major stationary source is that would qualify the unit as a major (6) * * * subject to the requirements of paragraph emissions unit as defined in paragraph (i) Except as provided in paragraph (aa)(9) of this section. (aa)(2)(iv) of this section. (aa)(6)(ii) and (iii) of this section, the (vi) The calculation procedures that (3) Permit application requirements. plan shall provide that the actuals PAL the major stationary source owner or As part of a permit application level for a major stationary source shall operator shall use to convert the requesting a PAL, the owner or operator be established as the sum of the baseline monitoring system data to monthly of a major stationary source shall submit actual emissions (as defined in emissions and annual emissions based
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on a 12-month rolling total as required level to the public for review and new BACT analysis at the time the by paragraph (aa)(13)(i) of this section. comment. During such public review, application is submitted, unless the (vii) A requirement that the major any person may propose a PAL level for emissions unit is currently required to stationary source owner or operator the source for consideration by the comply with a BACT or LAER monitor all emissions units in Administrator. requirement that was established within accordance with the provisions under (ii) Application deadline. A major the preceding 10 years. In such a case, paragraph (aa)(12) of this section. stationary source owner or operator the assumed control level for that * * * * * shall submit a timely application to the emissions unit shall be equal to the (8) * * * Administrator to request renewal of a level of BACT or LAER with which that (ii) * * * PAL. A timely application is one that is emissions unit must currently comply. (b) *** submitted at least 6 months prior to, but * * * * * (2) Reduce the PAL consistent with not earlier than 18 months from, the (12) * * * any other requirement, that is date of permit expiration. This deadline (i) * * * enforceable as a practical matter, and for application submittal is to ensure (a) Each PAL permit must contain that the State may impose on the major that the permit will not expire before enforceable requirements for the stationary source under the State the permit is renewed. If the owner or monitoring system that accurately Implementation Plan; and operator of a major stationary source determines plantwide emissions of the * * * * * submits a complete application to renew PAL pollutant in terms of mass per unit the PAL within this time period, then (9) *** of time or, in CO2e per unit of time for (i) * * * the PAL shall continue to be effective a GHG PAL. Any monitoring system (a) Within the time frame specified for until the revised permit with the authorized for use in the PAL permit PAL renewals in paragraph (aa)(10)(ii) renewed PAL is issued. must be based on sound science and of this section, the major stationary * * * * * meet generally acceptable scientific source shall submit a proposed (iv) * * * procedures for data quality and allowable emission limitation for each (c) *** manipulation. Additionally, the emissions unit (or each group of (1) If the potential to emit of the major information generated by such system emissions units, if such a distribution is stationary source is less than the PAL, must meet minimum legal requirements more appropriate as decided by the the Administrator shall adjust the PAL for admissibility in a judicial Administrator) by distributing the PAL to a level no greater than the potential proceeding to enforce the PAL permit. to emit of the source; and allowable emissions for the major * * * * * stationary source among each of the (2) The Administrator shall not (14) * * * emissions units that existed under the approve a renewed PAL level higher (i) * * * PAL. If the PAL had not yet been than the current PAL, unless the major adjusted for an applicable requirement stationary source has complied with the (b) Total annual emissions (expressed that became effective during the PAL provisions of paragraph (aa)(11) of this on a mass-basis in tons per year, or effective period, as required under section (increasing a PAL). expressed in tons per year CO2e for a paragraph (aa)(10)(v) of this section, GHG PAL) based on a 12-month rolling * * * * * total for each month in the reporting such distribution shall be made as if the (11) * * * PAL had been adjusted. period recorded pursuant to paragraph (i) The Administrator may increase a (aa)(13)(i) of this section. * * * * * PAL emission limitation only if the (iv) Any physical change or change in major stationary source complies with * * * * * the method of operation at the major the provisions in paragraphs (d) A list of any emissions units stationary source will be subject to (aa)(11)(i)(a) through (d) of this section. modified or added to the major major NSR requirements if such change (a) The owner or operator of the major stationary source during the preceding meets the definition of major stationary source shall submit a 6-month period. modification in paragraph (b)(2) of this complete application to request an * * * * * section. increase in the PAL limit for a PAL (ii) Deviation report. The major (v) The major stationary source owner major modification. Such application stationary source owner or operator or operator shall continue to comply shall identify the emissions unit(s) shall promptly submit reports of any with any State or Federal applicable contributing to the increase in emissions deviations or exceedance of the PAL requirements (BACT, RACT, NSPS, etc.) so as to cause the major stationary requirements, including periods where that may have applied either during the source’s emissions to equal or exceed its no monitoring is available. A report PAL effective period or prior to the PAL PAL. submitted pursuant to § 70.6(a)(3)(iii)(B) effective period except for those (b) As part of this application, the of this chapter shall satisfy this emission limitations that had been major stationary source owner or reporting requirement. The deviation established pursuant to paragraph (r)(4) operator shall demonstrate that the sum reports shall be submitted within the of this section, but were eliminated by of the baseline actual emissions of the time limits prescribed by the applicable the PAL in accordance with the small emissions units, plus the sum of program implementing provisions in paragraph (aa)(1)(ii)(c) of the baseline actual emissions of the § 70.6(a)(3)(iii)(B) of this chapter. The this section. significant and major emissions units reports shall contain the following (10) * * * assuming application of BACT information: (i) The Administrator shall follow the equivalent controls, plus the sum of the * * * * * procedures specified in paragraph allowable emissions of the new or (aa)(5) of this section in approving any modified emissions unit(s) exceeds the Subpart Y—Minnesota request to renew a PAL for a major PAL. The level of control that would stationary source, and shall provide result from BACT equivalent controls on § 52.1233 [Amended] both the proposed PAL level and a each significant or major emissions unit ■ 5. Section 52.1233(b) is removed. written rationale for the proposed PAL shall be determined by conducting a * * * * *
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Subpart SS—Texas of this chapter as the aggregate group of ■ d. Removing paragraph (d) under six greenhouse gases: Carbon dioxide, District of Columbia; § 52.2305 [Amended] nitrous oxide, methane, ■ e. Removing paragraph (c) under ■ 6. Section 52.2305 is removed and hydrofluorocarbons, perfluorocarbons, Georgia; reserved. and sulfur hexafluoride. To represent an ■ f. Removing paragraph (d) under * * * * * amount of GHGs emitted, the term tpy Hawaii; CO2 equivalent emissions (CO2e) shall ■ g. Removing paragraph (c) under Subpart YY—Wisconsin be used and computed as follows: Illinois; ■ § 52.2590 [Amended] (1) Multiply the mass amount of h. Removing and reserving paragraph emissions (tpy), for each of the six (m) under Iowa; ■ 7. Section 52.2590 is removed and greenhouse gases in the pollutant GHGs, ■ i. Removing and reserving paragraph reserved. by the gas’s associated global warming (e) under Kansas; * * * * * potential published at Table A–1 to ■ j. Removing paragraph (c) under subpart A of part 98 of this chapter— Louisiana; PART 60—STANDARDS OF ■ k. Removing paragraph (c) under PERFORMANCE FOR NEW Global Warming Potentials. (2) Sum the resultant value for each Maine; STATIONARY SOURCES ■ gas to compute a tpy CO2e. l. Removing paragraph (d) under ■ 8. The authority citation for part 60 Major source means * * * Maryland; continues to read as follows: (1) * * * ■ m. Removing paragraph (d) under Minnesota; Authority: 42 U.S.C. 7401 et seq. (2) A major stationary source of air pollutants, as defined in section 302 of ■ n. Removing paragraph (c) under Subpart OOOOa-—Standards of the Act, that directly emits, or has the Mississippi; Performance for Crude Oil and Natural potential to emit, 100 tpy or more of any ■ o. Removing and reserving paragraph Gas Facilities for Which Construction, air pollutant subject to regulation except (x) under Missouri; Modification or Reconstruction the pollutant greenhouse gases as ■ p. Removing and reserving paragraph Commenced After September 18, 2015 defined in this section. This definition (k) under Nebraska, City of Omaha; of major stationary source includes any Lincoln Lancaster County Health § 60.5360a [Amended] major source of fugitive emissions of Department; ■ 9. Section 60.5360a is amended by any such pollutant (except the pollutant ■ q. Removing paragraph (d) under removing and reserving paragraph (b). greenhouse gases as defined in this Nevada; ■ section), as determined by rule by the r. Removing paragraph (c) under New Subpart TTTT—Standards of Administrator. The fugitive emissions of Hampshire; Performance for Greenhouse Gas ■ a stationary source shall not be s. Removing paragraph (e) under New Emissions for Electric Generating considered in determining whether it is York; Units ■ a major stationary source for the t. Removing paragraph (d) under Ohio; § 60.5515 [Amended] purposes of section 302(j) of the Act, ■ u. Removing paragraph (c) under ■ 10. Section 60.5515 is amended by unless the source belongs to one of the following categories of stationary Oklahoma; removing and reserving paragraph (b). ■ source: v. Removing and reserving paragraph (c) under Pennsylvania; Subpart UUUU—Emission Guidelines * * * * * ■ w. Removing paragraph (c) under for Greenhouse Gas Emissions and Subject to regulation means, for any Rhode Island; Compliance Times for Electric Utility air pollutant, that the pollutant is ■ x. Removing paragraph (c) under Generating Units subject to either a provision in the Clean South Carolina; Air Act, or a nationally-applicable § 60.5705 [Amended] ■ y. Removing paragraph (c) under regulation codified by the Administrator ■ South Dakota; 11. Section 60.5705 is amended by in subchapter C of this chapter, that removing and reserving paragraph (b). ■ z. Removing paragraph (f) under requires actual control of the quantity of Tennessee; PART 70— STATE OPERATING emissions of that pollutant, and that ■ aa. Removing paragraph (c) under PERMIT PROGRAMS such a control requirement has taken Utah; effect and is operative to control, limit ■ bb. Removing paragraph (c) under ■ 15. The authority citation for part 70 or restrict the quantity of emissions of Vermont; continues to read as follows: that pollutant released from the ■ cc. Removing paragraph (c) under Authority: 42 U.S.C. 7401, et seq. regulated activity. Pollutants subject to Virgin Islands; regulation include, but are not limited ■ 16. Section 70.2 is amended by: ■ dd. Removing paragraph (c) under to, greenhouse gases as defined in this ■ a. Adding in alphabetical order a Virginia; section. definition for ‘‘Greenhouse gases;’’ ■ ee. Removing paragraph (j) under ■ b. Revising the introductory text Appendix A to Part 70—Approval Washington; paragraph (2) for the definition of Status of State and Local Operating ■ ff. Removing paragraph (f) under West ‘‘Major source;’’ and Permits Programs Virginia; and ■ c. Revising the definition of ‘‘Subject ■ gg. Removing paragraph (c) under ■ to regulation’’. 17. Appendix A to Part 70 is amended Wisconsin. The revisions and addition read as by: follows: ■ a. Removing paragraph (d) under PART 71—FEDERAL OPERATING Alabama; PERMIT PROGRAMS § 70.2 Definitions. ■ b. Removing paragraph (jj) under ■ * * * * * California; 18. The authority citation for part 71 Greenhouse gases (GHGs) means the ■ c. Removing paragraph (c) under continues to read as follows: air pollutant defined in § 86.1818–12(a) Colorado; Authority: 42 U.S.C. 7401, et seq.
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■ 19. Section 71.2 is amended by: by the gas’s associated global warming purposes of section 302(j) of the Act, ■ a. Adding in alphabetical order a potential published at Table A–1 to unless the source belongs to one of the definition for ‘‘Greenhouse gases;’’ subpart A of part 98 of this chapter— following categories of stationary ■ b. Revising the introductory text Global Warming Potentials. source: paragraph (2) for the definition of (2) Sum the resultant value for each * * * * * ‘‘Major source;’’ and gas to compute a tpy CO2e. ■ c. Revising the definition of ‘‘Subject Subject to regulation means, for any * * * * * to regulation’’. air pollutant, that the pollutant is Major source means * * * The revisions and addition read as subject to either a provision in the Clean (1) * * * follows: Air Act, or a nationally-applicable (2) A major stationary source of air regulation codified by the Administrator § 71.2 Definitions. pollutants, as defined in section 302 of in subchapter C of this chapter, that the Act, that directly emits, or has the * * * * * requires actual control of the quantity of Greenhouse gases (GHGs) means the potential to emit, 100 tpy or more of any emissions of that pollutant, and that air pollutant defined in § 86.1818–12(a) air pollutant subject to regulation except such a control requirement has taken of this chapter as the aggregate group of the pollutant greenhouse gases as effect and is operative to control, limit six greenhouse gases: Carbon dioxide, defined in this section. This definition or restrict the quantity of emissions of nitrous oxide, methane, of major stationary source includes any that pollutant released from the hydrofluorocarbons, perfluorocarbons major source of fugitive emissions of regulated activity. Pollutants subject to and sulfur hexafluoride. To represent an any such pollutant (except the pollutant regulation include, but are not limited amount of GHGs emitted, the term tpy greenhouse gases as defined in this to, greenhouse gases as defined in this CO2 equivalent emissions (CO2e) shall section), as determined by rule by the be used and computed as follows: Administrator. The fugitive emissions of section. (1) Multiply the mass amount of a stationary source shall not be * * * * * emissions (tpy), for each of the six considered in determining whether it is [FR Doc. 2016–21475 Filed 9–30–16; 8:45 am] greenhouse gases in the pollutant GHGs, a major stationary source for the BILLING CODE 6560–50–P
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Part III
Department of Commerce
Patent and Trademark Office 37 CFR Parts 1, 41, and 42 Setting and Adjusting Patent Fees During Fiscal Year 2017; Proposed Rule
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DEPARTMENT OF COMMERCE ADDRESSES: Comments should be sent fees. Section 10 authority includes by electronic mail message over the flexibility to set individual fees in a way Patent and Trademark Office Internet addressed to: fee.setting@ that furthers key policy factors, while uspto.gov. Comments may also be taking into account the cost of the 37 CFR Parts 1, 41, and 42 submitted by postal mail addressed to: respective services. Section 10 also [Docket No. PTO–P–2015–0056] Mail Stop—Office of the Chief Financial establishes certain procedural Officer, Director of the United States requirements for setting or adjusting fee RIN 0651–AD02 Patent and Trademark Office, P.O. Box regulations, such as public hearings and 1450, Alexandria, VA 22313–1450, input from the Patent Public Advisory Setting and Adjusting Patent Fees marked to the attention of ‘‘Brendan Committee (PPAC) and Congressional During Fiscal Year 2017 Hourigan.’’ Comments may also be sent oversight. AGENCY: United States Patent and by electronic mail message over the Parallel Rulemaking. In tandem with Trademark Office, Department of Internet via the Federal eRulemaking this notice of proposed rulemaking Commerce. Portal at http://www.regulations.gov. (NPRM) for patent related fees, the See the Federal eRulemaking Portal Web Office is undertaking a separate fee ACTION: Notice of proposed rulemaking. site for additional instructions on rulemaking action that proposes to SUMMARY: The United States Patent and providing comments via the Federal adjust trademark related fees titled Trademark Office (Office or USPTO) eRulemaking Portal. Trademark Adjustment Fees (RIN: proposes to set or adjust patent fees as Although comments may be 0651–AD08), published on May 27, authorized by the Leahy-Smith America submitted by postal mail, the Office 2016 (81 FR 33619) and available at Invents Act (Act or AIA). The USPTO is prefers to receive comments by http://www.uspto.gov/about-us/ a business-like operation where external electronic mail message over the performance-and-planning/fee-setting- factors affect the productivity of the Internet, which allows the Office to and-adjusting. workforce and the demand for patent more easily share comments with the B. Summary of Provisions Impacted by products and services. The proposed fee public. Electronic comments are This Action adjustments are needed to provide the preferred to be submitted in plain text, The fee schedule in this rulemaking Office with a sufficient amount of but also may be submitted in portable will recover the aggregate estimated aggregate revenue to recover its document format or a word processing costs of patent operations while aggregate cost of patent operations format. Comments not submitted electronically should be submitted on achieving the Office’s strategic goals as (based on current projections), while detailed in the USPTO 2014–2018 maintaining momentum towards paper in a format that facilitates convenient digital scanning into Strategic Plan (Strategic Plan) that is achieving strategic goals. This available at http://www.uspto.gov/ rulemaking represents the second portable document format. _ _ The comments will be available for about/stratplan/USPTO 2014-2018 iteration of patent fee rulemaking by the _ public inspection via the Office’s Strategic Plan.pdf, as amended by USPTO to set fees under the authority Appendix III of the Budget, available at of the AIA; the first AIA patent fee Internet Web site (http://www.uspto.gov) and at http://www.regulations.gov. http://www.uspto.gov/sites/default/files/ setting rule was published in January documents/fy17pbr.pdf. The Strategic 2013. This current rulemaking is a result Because comments will be made available for public inspection, Plan defines the USPTO’s mission, of the USPTO assessing its costs and vision, and long-term goals and presents fees, as is consistent with federal fee information that the submitter does not desire to make public, such as an the actions the Office will take to realize setting standards. Following a biennial those goals. This fee setting rule review of fees, costs, and revenues that address or phone number, should not be included in the comments. supports the patent-related strategic began in 2015, the Office concluded that goals to optimize patent quality and FOR FURTHER INFORMATION CONTACT: further targeted fee adjustments were timeliness, which includes improving Brendan Hourigan, Director of the Office necessary to continue funding patent patent quality, reducing the backlog of of the Planning and Budget, by operations, enhance patent quality, and unexamined applications and telephone at (571) 272–8966; or Dianne continue to work toward patent decreasing patent application pendency, Buie, Office of Planning and Budget, by pendency goals, strengthen the Office’s and facilitating processing at the Patent telephone at (571) 272–6301. information technology (IT) capability Trial and Appeal Board (PTAB); and and infrastructure, and achieve SUPPLEMENTARY INFORMATION: increasing international efforts to operating reserve targets. Further, in I. Executive Summary improve intellectual property policy, several instances, the fee change protection and enforcement. This proposals offered during the biennial fee A. Purpose of This Action proposed rule also supports the review process were enhanced by the The Office proposes this rule under management goal to achieve availability of cost and workload data section 10 of the AIA (Section 10), organizational excellence, which (e.g., the number of requests for a which authorizes the Director of the includes leveraging IT investments and service) that was not available in 2013. USPTO to set or adjust by rule any securing sustainable funding. The Office As a result, the 205 proposed fee patent fee established, authorized, or intends to issue a final rule on fee adjustments outlined in this proposed charged under title 35 of the United changes in FY 2017 after receipt and rule align directly with the Office’s States Code (U.S.C.) for any services analysis of public comments. strategic goals and four key fee setting performed, or materials furnished, by During a formal process closely tied to policy factors, discussed in detail in the Office. Section 10 prescribes that the annual budget process, the USPTO Part V. fees may be set or adjusted only to management and leadership teams DATES: The Office solicits comments recover the aggregate estimated costs to reviewed and analyzed individual fee from the public on this proposed the Office for processing, activities, changes and new fee proposals to assess rulemaking. Written comments must be services, and materials relating to their alignment with the Office’s received on or before December 2, 2016 patents, including administrative costs strategic goals and fee structure to ensure consideration. of the Office with respect to such patent philosophy, both of which aim to
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provide sufficient financial resources to public comment period, the final rule hosted a ‘‘Quality Summit’’ with the facilitate the effective administration of was published in the Federal Register public to discuss the outlined proposals. the USPTO. Specifically, the Office on January 18, 2013 (78 FR 4212), with By engaging the public on this topic, the assessed how well each proposal most fee changes effective on March 18, Office received more than 1,200 aligned with four key fee setting policy 2013, and the remainder effective on comments on a wide array of possible factors: Foster innovation, align fees January 1, 2014. patent quality initiatives and received with the full cost of products and The Office has made considerable even more feedback from both patent services, set fees to facilitate the progress in reducing backlog and examiners and external stakeholders effective administration of the patent pendency: First action pendency went during the summit. Already the Office and trademark systems, and offer from 21.9 months in FY 2012 to 17.3 has created 11 programs under the application processing options for months in FY 2015; total average umbrella of the EPQI in areas including applicants. pendency was reduced from 32.4 pre-examination and search In this rulemaking, the Office months in FY 2012 to 26.6 months in enhancement, prosecution proposes to set or adjust 205 patent fees FY 2015; and the patent application enhancement, and evaluation for large, small and micro entities (any backlog was reduced from 608,283 in enhancement. The Office held a patent reference herein to ‘‘large entity’’ FY 2012 to 553,221 at the end of FY quality community symposium in April includes all entities other than those 2015. The USPTO was also able to that have established entitlement to complete the opening of three 2016 featuring interactive segments and either a small or micro entity fee additional regional offices in Denver, implementation updates on the EPQI. discount). The fees for small and micro Colorado; San Jose (Silicon Valley), The goal of the symposium was to entity rates are tiered with small entities California; and Dallas, Texas. With a update the public on the USPTO’s at a 50 percent discount and micro regional office already in Detroit, and progress on the 11 programs to improve entities at a 75 percent discount. Small USPTO headquarters in the Washington clarity of the prosecution record, entity fee eligibility is based on the size DC metro area, the Office is better enhance examiner training, improve or certain non-profit status of the equipped to build and maintain a applicant-examiner interactions, and applicant’s business. Micro entity fee flexible, diverse, and engaged workforce redefine ways to capture and measure eligibility is described in Section 10(g) that is prepared to support backlog data about quality. The symposium of the Act. There are also 42 new fees reduction and pendency goals while featured lectures on these topics, an being introduced or replacing one of the better serving the intellectual property interactive workshop demonstration on 14 fees that are being discontinued. community across the nation. how the Master Review Form will be In summary, the routine fees to obtain Similarly, the Office continues its applied (see http://www.uspto.gov/blog/ a patent (i.e., filing, search, efforts toward enhancing patent quality. director/entry/improvements_in_ examination, and issue fees) will As a result of the increased revenue measuring_patent_quality), and a panel increase slightly under this NPRM from the inaugural AIA patent fee discussion with experienced patent relative to the current fee schedule. setting, the Office is better positioned to practitioners about ways applicants can Applicants who meet the definition for increase its quality focus because of contribute to the Agency’s efforts. The small or micro entity discounts will significant reductions in the patent proposed fees will provide sufficient continue to pay a reduced fee for the application backlog and pendency, resources to permit the Office to fees eligible for a discount under improved patent operations and maintain momentum for developing a Section 10(b). Additional information procedures, and more secure funding. new paradigm of patent quality at the describing the proposed fee adjustments High-quality patents enable certainty USPTO. is included in Part V: Individual Fee and clarity of rights, which fuels Likewise, since the last patent fee Rationale section of Supplementary innovation and reduces needless setting effort, the USPTO has made Information in this rulemaking and in litigation. The Office’s commitment to a significant progress on IT tools, like the the ‘‘Table of Patent Fees—Current, renewed and enhanced focus on patent Patents End-to-End (PE2E) suite, a Proposed and Unit Cost’’ (hereinafter quality centers on three pillars: (1) ‘‘Table of Patent Fees’’) available at Excellence in work products; (2) solution that will enable a new way of http://www.uspto.gov/about-us/ excellence in measuring patent quality; processing patent applications using a performance-and-planning/fee-setting- and (3) excellence in customer service. single software platform to manage and-adjusting. The three quality pillars are high examination activities and integrate It is important to recognize the priorities throughout the Office, in with existing systems via user-oriented progress the Office has made since the addition to the existing quality tools that help examiners process first Section 10 patent fee setting effort initiatives set forth by the USPTO-led applications and support analytics and in order to better understand the fee White House Executive Actions on automated processing. See Part III of adjustments the Office is proposing in High-Tech Patent Issues (http:// this rulemaking for more information on this iteration. The USPTO first used the www.uspto.gov/patent/initiatives/uspto- how PE2E will transform the Office. authority provided in Section 10 to set led-executive-actions-high-tech-patent- Other IT efforts are also underway to and adjust patent fees based on the issues). The Office is strengthening repair or replace the USPTO’s aging market factors at the time. That initial work products, processes, services, and infrastructure. The Office is also effort, which began in September 2011, how it measures patent quality at all working to ensure optimal IT service aimed to provide sufficient revenue to stages of the patent process. The delivery to all users in PTAB, including recover the cost of patent operations, recently implemented Enhanced Patent continued development and including improving patent quality, Quality Initiative (EPQI) aims to ensure deployment of the PTAB-End-to-End reducing the patent application backlog, that the Office continues issuing high- (PTAB E2E) IT capabilities, which will decreasing patent application pendency, quality patents well into the future. expand the use of intelligent data to upgrading the patent business IT Stakeholder engagement is a critical support appeal decisions and process capability and infrastructure, and component of the EPQI. Following a inter partes review (IPR) proceedings, implementing a sustainable funding request for public comments on a set of post-grant review (PGR) proceedings, model. After two public hearings and a potential quality proposals, the Office covered business method review
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(CBMR) proceedings, and derivation 2015. In order to continue to provide The qualitative costs and benefits that (DER) proceedings. effective service, the Office must the RIA assesses are: (1) Fee schedule The PTAB will benefit greatly from proactively manage fiscal risks. The design—a measure of how well the fee enhanced system tools even as the Office acutely recognizes that fees schedule aligns to the Office key fee organization has significantly cannot simply increase for every setting policy factors; (2) securing strengthened capacity in recent years. A improvement the Office deems aggregate revenue to cover aggregate major component of the overall patent desirable. Instead, for this rulemaking cost—a measure of whether the process is the work carried out by the effort, the Office focused on prioritizing alternative provides adequate revenue to PTAB. The PTAB received more than spending and gradually building the support the core mission and strategic 4,700 petitions for AIA trial proceedings operating reserve in order to build priorities described in the NPRM and since 2012 and has met every deadline resiliency against financial shocks. At FY 2017 Budget; and (3) aggregate set by Congress for such trials. In the optimal levels, the reserve will allow increased user fee payments—a measure last iteration of patent fee setting, the the Office to operate for three months in of the opportunity cost associated with Office had to estimate both demand the event of interruptions in the ability paying additional fees to the Office. For (e.g., workload) and cost with little data to access collected fees such as during these three costs and benefits, the fee available for the IPRs, PGRs, and a government shutdown or during a schedule proposed in this NPRM offers CBMRs. Now, with three years of period of unanticipated reductions in the highest net benefits. As described historical cost data, the Office has better revenue or increases in operating throughout this document, the proposed insights into the full cost of services and expenses, such as during a domestic or fee schedule maintains the existing can better estimate demand, which global economic crisis, or major balance of below-cost entry fees (e.g., enables the USPTO to align fees more departures from the estimated number filing, search, and examination) and appropriately. This proposed of patent applications received. above cost maintenance fees as one rulemaking will help the PTAB In conclusion, the USPTO has made approach to foster innovation. Further, continue to maintain the appropriate significant strides in realizing the goals as detailed in Part V, the proposed fee level of judicial and administrative set forth in 2011, in part due to the AIA changes are targeted in support of one resources to continue to provide high authority to set fees. In order to or more fee setting policy factors. Lastly, quality and timely decisions for AIA continue building on the progress made the proposed rule secures the aggregate trials, reexamination appeals, and ex over the last several years, and revenue needed to achieve the strategic parte appeals. The USPTO’s goal is to consistent with the USPTO’s biennial priorities encompassed in the meet the statutory timeliness fee review policy, the USPTO proposes rulemaking goals and strategies (see Part requirements for decisions in AIA the fee schedule detailed herein to III). In summary, the benefits of the proceedings and in appeals from re- continue quality initiatives, maintain proposed alternative clearly outweigh examination proceedings. While no progress toward backlog and pendency those of the baseline and the other statutory timeliness requirement exists reduction, continue IT improvements alternatives considered in the RIA. for appeals in regular ex parte for both Patents and PTAB, and promote Table 1 summarizes the RIA results. applications, the Office is committed to the sound fiscal management of the reducing the inventory of appeals by Office while answering stakeholder calls TABLE 1—PROPOSED PATENT FEE hiring to the extent possible, clearing to continue to improve service. The fees SCHEDULE COSTS AND BENEFITS, the oldest cases, and reassigning judges proposed in this rulemaking intend to CUMULATIVE FY 2017–FY 2021 according to greatest need. The proposal make the Office well positioned to includes an increase to the major PTAB deliver on known commitments, and Qualitative Costs and Benefits fees including Filing a Notice of Appeal, address unknown risks in the future. Forwarding an Appeal to the Board, IPR, C. Summary of Costs and Benefits of Costs PGR, and CBMR fees. This Action Aggregate Increase in User Moderate. Lastly, the USPTO has made Fee Payments. significant progress towards financial The proposed rule is significant and Benefits ...... Total. sustainability as a result of the initial results in a need for a Regulatory Impact Secure Aggregate Revenue Significant. AIA fee setting effort, including Analysis (RIA) under Executive Order to Cover Aggregate Costs. building towards a three-month optimal 12866 Regulatory Planning and Review, Fee Schedule Design ...... Significant. operating reserve for patents. As 58 FR 51735 (Oct. 4, 1993). The Office Net Benefit ...... Significant. initially presented in the 2013 patent fee prepared an RIA to analyze the costs Additional details describing the costs setting rule, funding an operating and benefits of the NPRM over a five- and benefits are available in the RIA at reserve as a part of the Office’s regular year period, FY 2017–FY 2021. The RIA http://www.uspto.gov/about-us/ budgetary requirements aligns with the includes a comparison of the proposed USPTO’s strategic priority to sustain fee schedule to the current fee schedule performance-and-planning/fee-setting- long-term operational goals and prevent (baseline) and to two other alternatives. and-adjusting. the USPTO from having to make short- The costs and benefits that the Office II. Legal Framework term crisis-based spending changes that identifies and analyzes in the RIA are A. Leahy-Smith America Invents Act— affect the delivery of the USPTO’s strictly qualitative. Qualitative costs and performance commitments. For benefits have effects that are difficult to Section 10 instance, the USPTO was able to express in either dollar or numerical The Leahy-Smith America Invents Act continue operations during the October values. Monetized costs and benefits, on was enacted into law on September 16, 2013 government-wide shut down by the other hand, have effects that can be 2011. See Public Law 112–29, 125 Stat. using available operating reserves expressed in dollar values. The Office 284. Section 10(a) of the Act authorizes carried over from FY 2013. More did not identify any monetized costs the Director of the Office to set or adjust recently, the operating reserve allowed and benefits of the proposed by rule any patent fee established, the Office to maintain progress on IT rulemaking, but found that the proposed authorized, or charged under title 35, investments when patent filings (and rulemaking had qualitative benefits U.S.C., for any services performed by, or subsequently revenue) decreased in FY exceeding its qualitative costs. materials furnished by, the Office. Fees
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under 35 U.S.C. may be set or adjusted PPAC must make a written report overriding principles behind this only to recover the aggregate estimated available to the public of the comments, strategy are to operate within a cost to the Office for processing, advice, and recommendations of the sustainable funding model to avoid activities, services, and materials related committee regarding the proposed fees disruptions caused by fluctuations in to patents, including administrative before the Office issues any final fees. financial operations, and to continue costs to the Office with respect to such The Office will consider and analyze making strategic improvements, such as patent operations. See 125 Stat. at 316. any comments, advice, or progress on patent quality initiatives, Provided that the fees in the aggregate recommendations received from the continued reduction of the patent achieve overall aggregate cost recovery, PPAC before finally setting or adjusting application backlog and pendency, and the Director may set individual fees fees. modernization of IT systems. under Section 10 at, below, or above Consistent with this framework, on In addition to the overriding their respective cost. Section 10(e) of the October 20, 2015, the Director notified principles outlined above, as discussed Act requires the Director to publish the the PPAC of the Office’s intent to set or earlier in this document, the Office also final fee rule in the Federal Register and adjust patent fees and submitted a assesses alignment with the key fee the Official Gazette of the Patent and preliminary patent fee proposal with setting policy factors. Each factor Trademark Office at least 45 days before supporting materials. The preliminary promotes a particular aspect of the U.S. the final fees become effective. Section patent fee proposal and associated patent system. Fostering innovation is 10(i) terminates the Director’s authority materials are available at http:// an important policy factor to ensure that to set or adjust any fee under Section www.uspto.gov/about-us/performance- access to the U.S. patent system is 10(a) upon the expiration of the seven- and-planning/fee-setting-and-adjusting. without significant barriers to entry, and year period that began on September 16, The PPAC held a public hearing in innovation is incentivized by granting 2011. Alexandria, Virginia, on November 19, inventors certain short-term exclusive rights to stimulate additional inventive B. Small Entity Fee Reduction 2015. Transcripts of the hearing are available for review at http:// activity. Aligning fees with the full cost Section 10(b) of the AIA requires the www.uspto.gov/sites/default/files/ of products and services recognizes that Office to reduce by 50 percent the fees documents/PPAC_Hearing_Transcript_ as a fully fee-funded entity, the Office for small entities that are set or adjusted 20151119.pdf. Members of the public must account for all of its costs even as under Section 10(a) for filing, searching, were invited to the hearing and given it elects to set some fees below, at, or examining, issuing, appealing, and the opportunity to submit written and/ above cost. This factor also recognizes maintaining patent applications and or oral testimony for the PPAC to that some applicants may use particular patents. consider. The PPAC considered such services in a much more costly manner than other applicants (e.g., patent C. Micro Entity Fee Reduction public comments from this hearing and made all comments available to the applications cost more to process when Section 10(g) of the AIA amended public via the Fee Setting Web site, more claims are filed). Facilitating chapter 11 of title 35, U.S.C., to add http://www.uspto.gov/about-us/ effective administration of the patent section 123 concerning micro entities. performance-and-planning/fee-setting- system is important to influence The Act provides that the Office must and-adjusting. The PPAC also provided efficient patent prosecution, resulting in reduce by 75 percent the fees for micro a written report setting forth in detail compact prosecution and reduction in entities for filing, searching, examining, the comments, advice, and the time it takes to obtain a patent. issuing, appealing, and maintaining recommendations of the committee Finally, the Office recognizes that patent patent applications and patents. Micro regarding the preliminary proposed fees. prosecution is not a one-size-fits-all entity fees were implemented through The report regarding the preliminary process and therefore, where feasible, the previous patent fee rule, and the proposed fees was released on February the Office endeavors to fulfill its fourth Office will maintain this 75 percent 29, 2016, and can be found online at policy factor of offering patent micro entity discount for the http://www.uspto.gov/sites/default/files/ processing options to applicants. appropriate fees and proposes to documents/PPAC_Fee%20_Setting_ B. Fee Setting Considerations implement micro entity fees for Report_2016%20%28Final%29.pdf. additional services as appropriate. The balance of this sub-section The Office considered and analyzed all presents the specific fee setting D. Patent Public Advisory Committee comments, advice, and considerations the Office reviewed in Role recommendations received from the developing the proposed patent fee The Secretary of Commerce PPAC before publishing this NPRM. schedule. Specific considerations are: established the PPAC under the Before the final rule is issued, the public (1) Historical costs of patent operations American Inventors Protection Act of will have a 60-day period during which and investments to date in meeting the 1999. 35 U.S.C. 5. The PPAC advises the to provide comments to be considered Office’s strategic goals; (2) projected Under Secretary of Commerce for by the USPTO. costs to meet the Office’s operational Intellectual Property and Director of the III. Rulemaking Goals and Strategies needs and strategic goals; and (3) USPTO on the management, policies, sustainable funding. Additionally, the goals, performance, budget, and user A. Fee Setting Strategy Office carefully considered the fees of patent operations. The overall strategy of this proposed comments, advice, and When adopting fees under Section 10 rulemaking is to establish a fee schedule recommendations offered by the PPAC of the Act, the Director must provide the that generates sufficient multi-year on the Office’s initial fee setting PPAC with the proposed fees at least 45 revenue to recover the aggregate cost to proposal. Collectively, these days prior to publishing the proposed maintain USPTO operations and considerations inform the Office’s fees in the Federal Register. The PPAC accomplish the USPTO’s strategic goals chosen rulemaking strategy. then has at least 30 days within which in accordance with the authority (1) Historical Cost. To ascertain how to deliberate, consider, and comment on granted to the USPTO by AIA Section to best align fees with the full cost of the proposal, as well as hold public 10. A similar strategy guided the initial products and services, the Office hearing(s) on the proposed fees. The AIA patent fee setting in 2013. The considers Activity Based Information.
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Using historical cost data and forecasted 2012 to 17.3 months in FY 2015, total patent operations and threaten the application demands, the Office can average pendency was reduced from Office’s ability to meet its designated align fees to the costs of specific patent 32.4 months in FY 2012 to 26.6 months performance levels (e.g., quality, products and services. The Office has in FY 2015, and the patent application backlog, and pendency). made significant progress towards its backlog was reduced from 608,283 in The USPTO’s annual budget strategic goals for patent quality, FY 2012 to 553,221 at the end of FY delineates prospective spending levels backlog, pendency, and IT system 2015. This proposed rulemaking will (aggregate costs) to execute core mission modernization for several years now. produce revenues adequate to continue activities and strategic initiatives. In the For more information about the Office’s the USPTO’s progress towards attaining FY 2017 President’s Budget, the USPTO performance record and progress its strategic goals for patent backlog and estimated that its aggregate patent towards its strategic goals, see the FY pendency. operating costs for FY 2017, including 2015 Performance and Accountability Similarly, the PTAB manages administrative costs, would be $2.930 Report, available at http:// pendency and inventory for appeals and billion. After evaluating relevant risk www.uspto.gov/sites/default/files/ trials. This proposed rulemaking will factors, the Office determined that a documents/USPTOFY15PAR.pdf. Each help the PTAB to maintain the minimum balance of $300 million in the of the Office’s goals is directly aligned appropriate level of judicial, legal, and operating reserve was adequate for FY to the cost of delivering patent services. administrative staff needed to provide 2016 and FY 2017, which is below the The document entitled USPTO Setting high quality and timely decisions for optimal balance of three months and Adjusting Patent Fees during Fiscal AIA trials, reexamination appeals, and operating expenses, or about $730 ex parte appeals. Year 2017—Activity Based Information million. Based on the proposed fee (b) Information Technology. Revenue and Patent Fee Unit Expense increase contained in the FY 2017 generated from the proposed fee Methodology, available at http:// President’s Budget, the spending www.uspto.gov/about-us/performance- structure will enable the USPTO to continue modernizing its IT architecture requirement would be offset by and-planning/fee-setting-and-adjusting, projected fee collections and other provides detail on the Office’s costing and systems. Some current systems remain obsolete and difficult to income of $3.005 billion and a deposit methodology in addition to the last of $75 million to the patent operating three years of historical cost data. Part maintain, leaving the USPTO vulnerable reserve, leaving a $385 million balance IV of this rulemaking details the Office’s to potential disruptions in patent in the patent operating reserve, or $85 methodology for establishing fees. operations. However, the Office’s efforts million more than the desired minimum Finally, Part V describes the reasoning on PE2E, the large-scale patent IT of $300 million for FY 2017. Because for setting some fees at cost, below cost, improvement program, have already the FY 2017 President’s Budget was or above cost such that the Office delivered value to examiners and submitted prior to the USPTO making recovers the aggregate cost of providing customers alike. One of the PE2E final decisions on the proposed fee services through fees. releases included an automated method (2) Projected Costs. The costs to convert millions of image-based adjustments, the operating reserve projected to meet the Office’s strategic patent application papers into a fully estimate in this NPRM differs from the goals can be found in the FY 2017 automated extensible markup language estimate included in the Budget. Given President’s Budget, which provides (XML), so that images can be tagged that the Office reduced several fees from additional detail about the following with keywords to facilitate searching the initial proposal in response to performance and modernization efforts, during the patent examination process. comments from the PPAC and the among others: (a) Quality, backlog, and PE2E relies on flexible, scalable, modern public, the aggregate revenue collected pendency and (b) modernized IT technology that is optimized to from the proposed fee schedule is lower. systems. eliminate repetitive tasks and support In FY 2017, the proposed fees and other (a) Quality, Backlog, and Pendency. analytics and automated processing. income are projected to collect $2.969 The Office developed the strategic goal Likewise, eCommerce Modernization billion, with $39 million deposited in of optimizing patent quality and (‘‘eMod’’) will improve the electronic the operating reserve, resulting in a timeliness in response to feedback from patent application process by improving balance of $349 million at the end of the the intellectual property community user interfaces, increasing functionality, fiscal year, which is slightly more than and in recognition that a sound, and updating infrastructure—all aimed the minimal level of $300 million for FY efficient, and effective intellectual at enriching the user experience via 2017. An optimal reserve balance of property system is essential for more efficient system integration and three months of operating expenses is technological innovation and for patent expanding system usefulness. Modern projected to be $789 million in FY 2019. holders to reap the benefits of patent IT tools benefit both USPTO employees With the proposed fee increases, the protection. In addition to timeliness of and stakeholders by facilitating the Office projects the actual balance will patent protection, the quality of effective administration of the patent reach $639 million at the end of FY application review is critical to the system through effective application 2019. Without the proposed fee changes, value of an issued patent. Issuance of processing, better examination quality, the Office projects that end of year FY quality patents provides certainty in the and the ability to provide greater 2019 operating reserve balance would market and allows businesses and services via a nationwide workforce. fall below the minimum threshold of innovators to make informed and timely (3) Sustainable Funding. A major $300 million to approximately $264 decisions on product and service component of sustainable funding is the million. With the proposed fee development. Under the proposed creation of a viable patent operating schedule, the Office projects to first action, the Office will continue to reserve that allows for effective reach the optimal operating reserve improve patent quality through the management of the U.S. patent system balance by the end of FY 2020, and FY three quality pillars identified in Part I. and responsiveness to changes in the 2021 would be the first year in which In addition to quality, the USPTO economy, unanticipated production the optimal operating reserve balance continues to focus on backlog and workload, and revenue changes. As a would be in place at the beginning of pendency reduction. First action fee-funded agency, spending levels and the fiscal year. The FY 2021 optimal pendency went from 21.9 months in FY revenue streams create volatility in reserve balance is projected to be $818
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million, and the projected reserve level changing the current fee structure. This path-information-disclosure-statement- entering the fiscal year is $861 million. Part and Part V: Individual Fee qpids) and the After Final Consideration The USPTO will continue to assess Rationale offer this additional Pilot Program 2.0 (AFCP 2.0) (http:// the patent operating reserve balance information. www.uspto.gov/patent/initiatives/after- against its target balance annually, and The PPAC expressed a lack of support final-consideration-pilot-20). at least every two years, the Office will for the proposal to increase Request for Additionally, the Enhanced Patent evaluate whether the target balance Continued Examination (RCE) fees. The Quality Initiative (http:// continues to be sufficient to provide the advisory body questioned whether the www.uspto.gov/patent/initiatives/ funding stability needed by the Office. fees are warranted and suggests instead enhanced-patent-quality-initiative-0) Per the Office’s operating reserve policy, that the USPTO consider ways to reduce will be evaluating and strengthening if the operating reserve balance is the need for RCEs. In response to this work products, processes, and services projected to exceed the optimal level by concern, the USPTO proposes a at all stages of the patent process and 10 percent for two consecutive years, reduction to the fee increases for both a may contribute to reducing the need for the Office will consider fee reductions. first RCE and a second and subsequent RCEs. Under the new fee structure, as in the RCE. The revised proposals include The report noted opposition to the past, the Office will continue to moderate increases that bring the fee proposed increases for excess claim regularly review its operating budgets rates closer to the cost of processing an fees. The PPAC recommends a refund and long-range plans to ensure the RCE, as calculated using the most system in which excess claim fees are returned when claims are cancelled in USPTO uses patent fees prudently. recently available cost data (FY 2015). (4) Comments, Advice, and response to a restriction requirement. Specifically, the first RCE fee rate is Recommendations from the Patent Under this proposal, an applicant would now proposed to increase from $1,200 Public Advisory Committee. In the only incur fees for the claims that are to $1,300 for large entities, a $100 report prepared in accordance with AIA actually examined, not just filed. The increase (8 percent). The initial proposal fee setting authority, the PPAC USPTO appreciates the PPAC’s included a $300 increase for this fee. expressed general support for an suggestion and has committed to The FY 2015 full cost to examine a first increase in fees to sustain quality and undertaking a study to determine the RCE was $2,187. When factoring small fund a sufficient operating reserve for feasibility of such a refund program, and and micro entity rates, first RCE fees the Office. Specifically, the report at present the Office is proposing the stated, ‘‘The PPAC agrees that the Office collected 48.8 percent of the increase for excess claim fees. should set fees to establish an adequate examination cost in FY 2015. The Regarding the proposed change to the revenue stream over a sustained period second and subsequent RCE fee rate is Information Disclosure Statement (IDS) to fund the people and infrastructure now proposed to increase from $1,700 model, the PPAC expressed concern essential for a high quality, low to $1,900 for large entities, a $200 about the negative effects of eliminating pendency examination process, and to increase (12 percent). The initial the certification requirement (under 37 fund its operating reserve.’’ However, proposal included a $300 increase for CFR 1.97 (e)) and noted that the fee the PPAC expressed concerns over some this fee. The FY 2015 full cost to increase may discourage applicants of the individual fee adjustments and examine a second and subsequent RCE from filing promptly when new prior art their potential impacts on patent was $1,540. When factoring small and is discovered. In response to PPAC and applicants and holders. To address micro entity rates, second and public comments, the USPTO these concerns and still generate the subsequent RCE fees collected 100 eliminated the proposed changes to IDS necessary aggregate revenue to meet the percent of the examination cost in FY practice and instead is proposing a Office’s goals, the PPAC suggested 2015. At an aggregate level, first and moderate increase to the IDS submission several alternative fee adjustment second and subsequent RCE fees fee rate. approaches. The USPTO has reviewed collected 62.5 percent of the The report stated that the substantial the report and has amended the initial examination costs for FY 2015. In order increase to the notice of appeal and fee proposal in an effort to address these to approach cost recovery and limit the appeal forwarding fees would likely concerns, where possible, so as to increase to the first RCE fee rate, the result in discouraging patent holders’ remain consistent with the rulemaking Office proposes a slightly larger increase invocation of appeal procedures, which goals. The USPTO has also included for the second and subsequent RCE fee are frequently used out of necessity additional information in this NPRM to rate. Had this fee structure been in place rather than choice. In response, the further address some of the PPAC’s in FY 2015, the Office would have Office notes that even with the proposed concerns. recovered 68.6 percent of RCE costs as increases to the fees, the true cost of ex The PPAC expressed general support opposed to the 62.5 percent that was parte appeals is being significantly for the stated goals and an increase in experienced. While this proposed fee subsidized. That is, in FY 2015, ex parte patent fees but proposed alternative structure will not achieve full cost appeal fees covered approximately 58 approaches for certain fee adjustments. recovery for RCEs, it will bring percent of the cost per appeal. The The report suggested that the USPTO collections closer to cost and therefore proposed fee increase will bring ex could save money by improving quality reduce the subsidy for RCE filings parte appeal fees up to cover and processes to maximize efficiency, currently provided by other patent fees. approximately 72 percent of the cost per thereby offsetting some fee increases. In In addition to the proposed fee appeal. Since the implementation of the general, the PPAC urged the Office to adjustments, the USPTO is committed January 2013 Setting and Adjusting provide more detail and justification for to focusing on initiatives that will Patent Fees Final Rule, the increased ex some of the fee adjustments, including reduce the need for RCEs. Examples of parte appeal fees have enabled the greater transparency in the allocation of initiatives the Office has already PTAB to hire more judges. The PTAB costs and historical aspects of costs, implemented to reduce the need for has made great strides in reducing its better explanations for why certain fees RCEs include the Quick Path appeals inventory, which reached over increased and to what purposes the Information Disclosure Statement 27,000 (in 2012), to under 19,000 (in additional revenue would be used, and (QPIDS) pilot program (http:// April 2016). The proposed increase in any practical implications of not www.uspto.gov/patent/initiatives/quick- fees will help the Board further reduce
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the appeals inventory and improve compliance with the rules governing the these are newly proposed fees. pendency for appeals and trials. The Patent Bar, the advisory body also However, based on historical data, on PTAB is also working to reduce recognizes that some practitioners may average, less than 10 applications per inventory with the implementation of be fully exonerated upon final year contained sequence data that the following two pilot programs: (i) determination. The Office would like to reached the 300 MB file levels of the Expedited Patent Appeal Pilot (EPAP) clarify that pursuant to 37 CFR proposed new fees. Based on previously (see http://www.uspto.gov/patents- 11.60(d)(2), the OED Director is filed applications with lengthy sequence application-process/patent-trial-and- currently authorized to recover listings, the Office determined that some appeal-board/expedited-patent-appeal- expenses from a disciplined practitioner applications disclosed sequence data pilot) and (ii) Small Entity Pilot Program who seeks reinstatement. The purpose that met the length thresholds for being (see http://www.uspto.gov/patents- of listing this fee in 37 CFR 1.21 is included in the sequence listing, but application-process/patent-trial-and- simply to establish a new fee code by that was neither invented by the appeal-board/uspto-announces- which to account for the receipt of these applicants nor claimed. These sequence streamlined-expedited). reimbursements. The fee is only listings often included sequences that The PPAC report specifically imposed on practitioners who seek were available in the prior art, were not expressed support for proposed fee reinstatement after having been essential material, and could have been adjustments for the IPR, PGR, and suspended or excluded. Thus, there described instead, for example, by name CBMR so that the PTAB has adequate should be no concern that a practitioner and a publication or accession resources to accomplish the mission of would be subject to this fee if he or she reference. Claims in such applications the AIA. However, the PPAC questioned has been investigated and cleared or has were frequently directed to the the distribution of the fees between pre- been disciplined but not suspended or manipulation of sequence data rather and post-institution. The Office excluded. than the substance of the sequences appreciates the observation and is The PPAC also suggested that the themselves. Submission of a mega- currently assessing the matter. proposed increases to design fees were sequence listing in these applications The PPAC suggested that it would be excessive. In response, the USPTO has would not have been necessary to sensible for the USPTO to subdivide the reduced the proposed increase to the complete the application if applicants AIA trial fees more finely (‘‘pay as you design issue fee by $200 for large limited the number of sequences that go’’). As the AIA review processes entities from the level that the Office were described in such a way as to be mature and become more certain, it may initially proposed. The proposed large required in a sequence listing. The be appropriate to study the impact and entity design issue fee rate is now $800 proposed fee should encourage feasibility of this proposal. Developing as opposed to $1,000. The minimum applicants to draft their specifications an understanding of the reasons driving required fees to obtain a design patent such that sequence data that is not settlements at various times in these (file/search/examination and issue) are essential material is not required to be proceedings will inform decision proposed to increase slightly beyond included in a sequence listing, which makers as to how and when to best cost recovery for large entities ($1,760 should reduce the need for mega- structure fees. Because fees are intended versus $1,596) to subsidize the sequence listings. A reduced number of to recapture aggregate agency patent substantial number (almost half in FY mega-sequence listings will benefit the costs over time, structuring of the fees 2015) of small and micro entity Office and the public by reducing large will still require recapture of all costs applicants who pay lower fees despite submissions of unnecessary sequences unless the costs of the review similar costs to the Office. Further, and, consequently, the search system proceedings are subsidized by other design patentees do not pay load. The PPAC also requested patent related revenue. The Office maintenance fees, so there is no back- additional information regarding the agrees with the PPAC’s characterization end subsidy to support below-cost front- proposed fee for the late filing of that the proceedings still contain end fees. Overall, design fees are still sequence listings in international significant uncertainties. Once the proposed at rates that are below the applications. This fee is being USPTO has had further experience with Office’s aggregate processing costs even established pursuant to PCT Rule the proceedings to derive conclusions if the large entity design fee rates are 13ter.1(c) and is similar in nature and about settlement and other behaviors, slightly above cost. Therefore, even with proposed fee rate to fees charged by the USPTO will reexamine the the proposed fee increases, design appropriateness of this proposal. application processing costs will other international IP offices. Additional Additionally, the PPAC suggested that continue to be subsidized by non-design information regarding the authority and the Office consider adopting a scaled specific fee revenues. The Office purpose of this rulemaking is available petition fee schedule based on the believes these proposed moderate fee at http://www.wipo.int/pct/en/texts/ petitioner’s annual revenue. However, increases in filing, search, examination, rules/r13ter.htm. the authority to discount fees or to and issue are appropriately aligned to The PPAC also requested additional charge additional fees for certain costs and the policy consideration to information regarding copy fees, in petitioners under the USPTO’s foster innovation. particular those that appeared to be rulemaking authority is limited by the In the case of sequence listing fees, ‘‘very high charges.’’ Currently the fee AIA to providing discounts to the six the report sought more information on schedule includes a catch-all fee of categories under section 10(b). As the the proposed fees to clarify the need for ‘‘Computer Records’’ priced ‘‘at cost.’’ administrative trial fees are outside of the increase. The level of effort The Office proposes to replace this fee the six categories, the trial fees are not associated with the handling of code with five fees that encompass work eligible for discounts. extremely lengthy sequence listings currently performed and charged to this The report proposed a refund system (hereafter referred to as mega-sequence code. The five fee codes proposed to for disciplinary proceeding fees listings) is significant because the replace the ‘‘Computer Records’’ fee are: associated with the Office of Enrollment Office’s systems require extra storage Copy of Patent Grant Single-Page TIFF and Discipline (OED). While the PPAC and special handling for sequence Images (52 week subscription); Copy of recognizes the importance of having an listing files beyond 300 Megabytes (MB). Patent Grant Full-Text W/Embedded effective process for ensuring Actual cost data is not available since Images, Patent Application Publication
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Single-Page TIFF Images, or Patent concerns, and suggestions provided in Step 1: Determine Prospective Aggregate Application Publication Full-Text W/ the report, and keeping in mind the Costs Embedded Images (52 week goals of this rulemaking, the USPTO Calculating prospective aggregate subscription); Copy of Patent elected to reduce several of the fee costs is accomplished primarily through Technology Monitoring Team (PTMT) increases initially proposed to the the annual USPTO budget formulation Patent Bibliographic Extract and Other PPAC. The newly proposed fee structure process. The Budget is a five-year plan DVD (Optical Disc) Products; Copy of will result in lower aggregate revenue (that the Office prepares annually) for U.S. Patent Custom Data Extracts; and than that initially proposed to the carrying out base programs and new Copy of Selected Technology Reports, PPAC. Nevertheless, the fee structure initiatives to implement the strategic Miscellaneous Technology Areas. The proposed herein will ultimately allow goals and objectives. proposed fee codes explicitly state the the USPTO to continue on its path The first activity performed to service and fee to provide customers towards achieving the goals and determine prospective aggregate cost is with clearer information to aid decision objectives laid out in the Strategic Plan. to project the level of demand for patent making. The Office looks forward to receiving products and services. Demand for These specific fees recover the additional comments on this revised products and services depend on many USPTO’s aggregate costs for processing, proposal during the public comment factors, including domestic and global validating, packaging, and shipment of period. economic activity. The USPTO also these products to customers worldwide. takes into account overseas patenting For the copy of Patent Grant Single-Page C. Summary of Rationale and Purpose activities, policies and legislation, and TIFF Images (52 week subscription) of the Proposed Rulemaking known process efficiencies. Because (which the Office proposes to set at The Office estimates that the filing, search, and examination costs are $10,400), for example if a customer proposed patent fee schedule will the largest share of the total patent orders this service, each week the Office produce aggregate revenues to recover operating cost, a primary production will expedite to him or her a package the aggregate costs of the USPTO, workload driver is the number of patent that contains, at a minimum, one Blu- including for the implementation of its application filings (i.e., incoming work ray and one DVD optical disc bearing strategic and management goals, to the Office). The Office looks at the patent grant data for each Tuesday objectives, and initiatives in FY 2017 indicators such as the expected growth in the calendar year via United Parcel and beyond. Using the strategic goals in Real Gross Domestic Product (RGDP), Service. The fee rate covers the cost of (optimizing patent quality and the leading indicator to incoming patent producing and delivering these items for timeliness and providing domestic and applications, to estimate prospective each of the 52 weeks of the year. For the global leadership to improve intellectual workload. RGDP is reported by the other three services proposed at $5,200, property policy, protection, and Bureau of Economic Analysis the expedited weekly packages (one for enforcement worldwide) and the (www.bea.gov) and is forecasted each each Tuesday or Thursday in the management goal of organizational February by the Office of Management calendar year) typically contain either a excellence as a foundation, the and Budget (OMB) (www.omb.gov) in single Blu-ray or DVD optical disc. As proposed rule would provide sufficient the Economic and Budget Analyses an alternative to requesting and paying aggregate revenue to recover the section of the Analytical Perspectives for these weekly services, the USPTO aggregate cost of patent operations, and each January by the Congressional has provided customers the ability to including improving patent quality, Budget Office (CBO) (www.cbo.gov) in download this information at no cost reducing the patent application backlog, the Budget and Economic Outlook. A since June 2010. This information is decreasing patent application pendency, description of the Office’s methodology currently provided in the following upgrading the patent business IT for using RGDP can be found at pages locations: Bulk Data Storage System capability and infrastructure, and 143 and 144 of the FY 2017 President’s (BDSS) available at https:// implementing a sustainable funding Budget (Congressional Justification). bulkdata.uspto.gov since October 2015 model. and Reed Tech Public Data The expected change in the required Dissemination (PDD) available at http:// IV. Fee Setting Methodology production workload must then be patents.reedtech.com since June 2013. The Office carried out three primary compared to the current examination The USPTO left maintenance fees steps in developing the proposed fees: production capacity to determine any untouched in the initial proposal. The Step 1: Determine the prospective required staffing and operating cost PPAC report noted that this was an aggregate costs of patent operations over (e.g., salaries, workload processing ‘‘attractive feature to many stakeholders the five-year period, including the cost contracts, and publication) adjustments. given their already high level, especially of implementing new initiatives to The Office uses a patent pendency at the third stage.’’ The PPAC also achieve strategic goals and objectives. model that estimates patent production commented that there may be an Step 2: Calculate the prospective output based on actual historical data opportunity to decrease the third stage revenue streams derived from the and input assumptions, such as fee and raise the maintenance fees at the individual fee amounts (from Step 3) incoming patent applications and first two stages or second maintenance that will collectively recover the overtime hours. An overview of the fee only as a means to increase revenue. prospective aggregate cost over the five- model, including a description of The USPTO appreciated the input and year period. inputs, outputs, key data relationships, will continue to closely monitor Step 3: Set or adjust individual fee and a simulation tool is available at renewal rates to determine if and when amounts to collectively (through http://www.uspto.gov/patents/stats/ a change to the maintenance fee rates is executing Step 2) recover projected patent_pend_model.jsp. warranted. aggregate cost over the five-year period, The second activity is to calculate the In summary, the USPTO appreciates while furthering key policy factors. aggregate costs to execute the the PPAC’s overall support for an These three steps are iterative and requirements. In developing its Budget, increase in patent fees to meet sufficient interrelated. The following is a the Office first looks at the cost of status funding levels. After careful description of how the USPTO carries quo operations (the base requirements). consideration of the comments, out these three steps. The base requirements are adjusted for
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anticipated pay raises and inflationary page 146 of the Budget), including building the patent operating reserve to increases for the budget year and four $2.009 billion for patent examination sustain operations. out years (detailed calculations and activities; $162 million for IT systems, Because the FY 2017 President’s assumptions for this adjustment can be support, and infrastructure contributing Budget was submitted prior to the found in the FY 2017 President’s to patent operations; $93 million for USPTO making final decisions on the Budget). The Office then estimates the activities related to patent appeals and proposed fee adjustments, the operating prospective cost for expected changes in the AIA inter partes dispute actions; $27 reserve estimate in this NPRM is production workload and new million for activities related to initiatives over the same period of time intellectual property protection, policy, therefore different than the estimate (refer to ‘‘Program Changes by Sub- and enforcement; and $637 million for included in the Budget. A detailed Program’’ sections of the Budget). The general support costs necessary for description of the operating Office reduces cost estimates for patent operations (e.g., rent, utilities, requirements and related aggregate cost completed initiatives and known cost legal, financial, human resources, other is located in the Budget. Table 2 below savings expected over the same five-year administrative services, and Office-wide provides key underlying production horizon. Finally, the Office estimates its IT infrastructure and IT support costs). workload projections and assumptions three-month target operating reserve In addition, the Office transfers $2 from the Budget used to calculate level based on this aggregate cost million to the DOC Inspector General for aggregate cost. Table 3 presents the total calculation for the year to determine if audit support. The Office also estimates budgetary requirements (prospective operating reserve adjustments are collecting $28 million in other income aggregate cost) for FY 2017 through FY necessary. associated with recoveries and 2021 and the estimated collections and The FY 2017 President’s Budget reimbursable agreements (offsets to operating reserve balances that would identifies that, during FY 2017, patent spending) and depositing $75 million result from the proposed adjustments operations will cost $2.928 billion (see during FY 2017 toward the cost of contained in this NPRM.
TABLE 2—PATENT PRODUCTION WORKLOAD PROJECTIONS—FY 2017–FY 2021
Utility, plant, and reissue (UPR) FY 2017 FY 2018 FY 2019 FY 2020 FY 2021
Applications * ...... 594,900 606,800 625,000 650,000 676,000 Growth Rate ...... 1.5% 2.0% 3.0% 4.0% 4.0% Production Units...... 616,200 624,900 628,700 629,300 628,500 Unexamined Patent Application Backlog ...... 434,700 397,400 374,000 374,700 401,600 Examination Capacity** ...... 8,087 8,022 7,937 7,832 7,777 Performance Measures (UPR) Avg. First Action Pendency (Months) ...... 13.7 12.2 10.9 10.3 10.2 Avg. Total Pendency (Months) ...... 22.9 22.1 20.6 19.5 19.1 * In this table, the patent application filing data includes requests for continued examination (RCEs). ** In this table, Examination Capacity is the UPR Examiners On-Board at End-of-Year, as described in the FY 2017 President’s Budget.
TABLE 3—PLANNED OPERATING REQUIREMENTS—FY 2017–FY 2021
Dollars in millions Patent aggregate cost estimate FY 2017 FY 2018 FY 2019 FY 2020 FY 2021
Patent Planned Operating Requirements ...... 2,930 3,114 3,157 3,208 3,272 Less: Planned Patent Fee Collections ...... 2,951 3,260 3,265 3,412 3,599 Less: Other Income ...... 18 18 18 18 18 To (¥)/From (+) Operating Reserve ...... 39 164 127 222 344 EOY Operating Reserve Balance ...... 349 513 639 861 1,206
Step 2: Calculate Prospective Aggregate indicators to calculate or determine indicators include the overall condition Revenue prospective fee workload (e.g., number of the U.S. and global economies, As described in ‘‘Step 1,’’ the of applications and requests for services spending on research and development USPTO’s FY 2017 requirements in the and products), growth, and resulting fee activities, and investments that lead to FY 2017 President’s Budget include the workload volumes (quantities) for the the commercialization of new products aggregate prospective cost of planned five-year planning horizon. Economic and services. The most relevant production, anticipated new initiatives, activity is an important consideration economic indicator that the Office uses and a contribution to the patent when developing workload and revenue is the RGDP, which is the broadest operating reserve required for the Office forecasts for the USPTO’s products and measure of economic activity and is to realize its strategic goals and services because economic conditions anticipated to grow approximately two objectives for the next five years. The affect patenting activity, as most percent for FY 2017 based on OMB and aggregate prospective cost becomes the recently exhibited in the recession of CBO estimates. target aggregate revenue level that the 2009 when incoming workloads and These indicators correlate with patent new fee schedule must generate in a renewal rates declined. application filings, which are a key given year and over the five-year The Office considers economic driver of patent fees. Economic planning horizon. To calculate the activity when developing fee workloads indicators also provide insight into aggregate revenue estimates, the Office and aggregate revenue forecasts for its market conditions and the management first analyzes relevant factors and products and services. Major economic of intellectual property portfolios,
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which influence application processing about-us/performance-and-planning/ considers to inform fee setting is the requests and post-issuance decisions to fee-setting-and-adjusting. historical cost estimates associated with maintain patent protection. When individual fees. The Office’s Activity- Summary developing fee workload forecasts, the Based Information (ABI) provides Office considers other influential factors Patent fees are collected for patent- historical cost for an organization’s including overseas activity, policies and related services and products at activities and outputs by individual fee legislation, court decisions, process different points in time within the using the activity-based costing (ABC) efficiencies, and anticipated applicant patent application examination process methodology. ABC is commonly used behavior. and over the life of the pending patent for fee setting throughout the Federal Anticipated applicant behavior in application and granted patent. Government. Additional information response to fee changes is measured Approximately half of all patent fee about the methodology, including the using an economic principle known as collections are from maintenance fees, cost components related to respective elasticity, which for the purpose of this which subsidize the cost of filing, fees, is available in the document search, and examination activities. action measures how sensitive entitled ‘‘USPTO Setting and Adjusting Changes in application filing levels applicants and patentees are to changes Patent Fees during Fiscal Year 2017— immediately impact current year fee in fee amounts. The higher the elasticity Activity-Based Information and Patent collections, because fewer patent measure (in absolute value), the greater Fee Unit Expense Methodology’’ application filings means the Office the applicant response to the relevant available at http://www.uspto.gov/ collects fewer fees to devote to fee change. If elasticity is low enough about-us/performance-and-planning/ production-related costs, such as (i.e., demand is inelastic or the elasticity fee-setting-and-adjusting. The USPTO additional examining staff and overtime. measure is less than one in absolute provides data for FY 2013–FY 2015 The resulting reduction in production value), a fees increase will lead to only because the Office finds that reviewing activities creates an out-year revenue a relatively small decrease in patent the trend of ABI historical cost impact because less production output information is the most useful way to activities, and overall revenues will still in one year results in fewer issue and increase. Conversely, if elasticity is high inform fee setting. The underlying ABI maintenance fee payments in future data are available for public inspection enough (i.e., demand is elastic or the years. elasticity measure is greater than one in at the USPTO. The USPTO’s five-year estimated When the Office implements a new absolute value), a fee increase will lead aggregate patent fee revenue (see Table process or service, historical ABI data is to a relatively large decrease in 3) is based on the number of patent typically not available. However, the patenting activities such that overall applications it expects to receive for a Office will use the historical cost of a revenues will decrease. When given fiscal year, work it expects to similar process or procedure as a developing fee forecasts, the Office process in a given fiscal year (an starting point to estimate the full cost of accounts for how applicant behavior indicator for workload of patent issue a new activity or service. will change at different fee amounts fees), expected examination and process projected for the various patent services. requests for the fiscal year, and the V. Individual Fee Rationale Additional detail about the Office’s expected number of post-issuance The Office projects that the aggregate elasticity estimates is available in decisions to maintain patent protection revenue generated from the proposed ‘‘USPTO Setting and Adjusting Patent over that same fiscal year. Within the patent fees will recover the prospective Fees during Fiscal Year 2017— iterative process for estimating aggregate aggregate cost of its patent operations Description of Elasticity Estimates,’’ revenue, the Office adjusts individual including contributions to the operating available at http://www.uspto.gov/ fees up or down based on cost and reserve per the strategic goal of about-us/performance-and-planning/ policy decisions (see Step 3: Set Specific implementing a sustainable funding fee-setting-and-adjusting. Fee Amounts), estimates the effective model. As detailed previously, the Aggregate Revenue Estimate Ranges dates of new fee rates, and then PPAC supports this approach, stating multiplies the resulting fees by that it ‘‘agrees that the Office should set When estimating aggregate revenue, appropriate workload volumes to its fees to establish an adequate revenue the USPTO prepares a high and a low calculate a revenue estimate for each stream over a sustained period to fund range of fee collection estimates. This fee. To calculate the aggregate revenue, the people and infrastructure essential range accounts for the inherent the Office assumes that all proposed fee for a high quality, low pendency uncertainty, sensitivity, and volatility of rates will become effective on April 1, examination process, and to fund its predicting fluctuations in the economy 2017. Using these figures, the USPTO operating reserve.’’ It is important to and market environment; interpreting sums the individual fee revenue recognize that each individual proposed policy and process efficiencies; and estimates, and the result is a total fee is not necessarily set equal to the developing fee workload and fee aggregate revenue estimate for a given estimated cost of performing the collection estimates from assumptions. year (see Table 3). activities related to the fee. Instead, as The Office estimates a range for all its described in Part III: Rulemaking Goals major workload categories including Step 3: Set Specific Fee Amounts and Strategies, some of the proposed application filings, extensions of time, Once the Office finalizes the annual fees are set at, above, and below their PTAB fees, maintenance fees, PCT requirements and aggregate prospective unit costs to balance several key fee filings, and trademark filings. costs for a given year during the budget setting policy factors: Fostering Additional detail about the Office’s formulation process, the Office sets innovation, facilitating effective aggregate revenue, including projected specific fee amounts that, together, will administration of the patent system, and workloads by fee, is available in derive the aggregate revenue required to offering patent processing options to ‘‘USPTO Setting and Adjusting Patent recover the estimated aggregate applicants. For example, many of the Fees during Fiscal Year 2017— prospective costs during that time initial filing fees are intentionally set Aggregate Revenue Estimates frame. Calculating individual fees is an below unit cost in order to foster Alternative 1: Proposed Alternative’’ iterative process that encompasses many innovation by removing barriers to entry available at http://www.uspto.gov/ variables. One variable that the USPTO for innovators. To balance the aggregate
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revenue loss of fees set below cost, other today would be the same as the The slight increase in these fees helps fees must be set above cost in areas percentage change for the large entity, the Office to recover higher costs of where it is less likely to reduce and the dollar change would be half or performing such services due to inventorship (e.g., maintenance). The one quarter of the large entity change. increased aggregate cost of doing Office applied a similar rationale to set Therefore, the only time there will be a business. The proposed fee adjustments and adjust patent fees in the 2013 final small or micro entity fee change that in this category are listed in the Table rule, the initial patent fee setting meets the greater than plus or minus 10 of Patent Fees. rulemaking using AIA authority. 78 FR percent or 20 dollars criteria without a B. Fees With Proposed Changes of 4212 (January 18, 2013). similar change for the large entity fee will be for those instances when the Greater Than Plus or Minus 10 Percent For some fees proposed in this NPRM, and 20 Dollars the USPTO does not typically maintain Office is introducing new small and individual historical cost data for the micro entity fees where there was For those fees that are proposed to service provided, such as maintenance previously only a large entity fee. These change by greater than plus or minus 10 fees. Instead, the Office evaluates the types of changes are discussed percent and 20 dollars, the individual policy factors described in Part III to separately. fee rationale discussion is divided into inform fee setting. By setting fees at The Table of Patent Fees includes the three categories, including: (1) New and particular levels, the USPTO aims to: (1) current and proposed fees for large, significant fees; (2) patent enrollment Foster an environment where examiners small, and micro entities as well as unit fees; and (3) fees adjusted and amended can provide and applicants can receive costs for the last three fiscal years. Part to include discounts for small and micro prompt, quality interim and final IV: Discussion of Specific Rules entities. contains a complete listing of fees that decisions; (2) encourage the prompt New and significant fees are further are set or adjusted in the proposed conclusion of prosecuting an divided into subcategories according to patent fee schedule. application, resulting in pendency the function of the fees, including: (a) reduction and the faster dissemination A. Fees With Proposed Changes Less Mega-sequence listing filing; (b) design of patented information; and (3) help Than Plus or Minus 10 Percent or 20 and plant search, examination, and recover costs for activities that strain the Dollars issue; (c) request for continued patent system. examination (RCE); (d) information The Office proposes to adjust slightly disclosure statements; (e) certificate of The rationale for the proposed (i.e., less than plus or minus 10 percent correction; (f) request for ex parte changes are grouped into three major or 20 dollars) several fees not discussed reexamination; (g) appeals; (h) AIA categories, discussed below: (A) Fees in sections B or C below. The Table of trials; (i) PCT- International Stage; and where large entity amounts stayed the Patent Fees demarcates which fees meet (j) reissue patent maintenance rules. same or did not change by greater than the dollar change and percent change As discussed above, for purposes of plus or minus 10 percent or 20 dollars; thresholds and are included for comparing amounts in the individual (B) fees where large entity amounts discussion in Part V. Proposed fees are fee rationale discussion, the Office has changed from the current amount by rounded to the nearest five dollars by included the current fees as the baseline greater than plus or minus 10 percent applying standard arithmetic rules. For and 20 dollars; and (C) fees that are fees that have small and micro entity fee to calculate the dollar change and discontinued or replaced. The purpose reductions, the large entity fee will be percent change for proposed fees. of the categorization is to identify large rounded to the nearest 20 dollars by (1) New and Significant Fees fee changes for the reader and provide applying standard arithmetic rules. The The following fees fall under the an individual fee rationale for such resulting proposed fee amounts will be category of new and significant. A changes. The categorization is based on convenient to patent users and permit discussion of the rationale for each fee changes in large entity fee amounts the Office to set small and micro entity follows. because percentage changes for small fees at whole dollar amounts when and micro entity fees that are in place applying the applicable fee reduction. (a) Mega-Sequence Listing Filing
TABLE 4—MEGA-SEQUENCE LISTING FILING—FEE CHANGES AND UNIT COST
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Submission of sequence listings of 300MB to 800MB ...... new ...... $1,000 +$1,000 n/a n/a ($500) (+$500) (n/a) [$250] [+$250] [n/a] Submission of sequence listings of more than 800 MB ...... new ...... $10,000 +$10,000 n/a n/a ($5,000) (+$5,000) (n/a) [$2,500] [+$2,500] [n/a]
The Office proposes two new fees to sizes 300MB to 800MB and Tier 2 for require extra storage and special manage handling of sequence listings of file sizes greater than 800MB. handling for files beyond 300 MB. The 300 MB or more. Pricing for this fee is The level of effort associated with the Office has not yet collected actual cost divided into two tiers with Tier 1 for file handling of mega-sequence listings is data for sequence listings with file sizes significant, because the Office’s systems of 300 MB or greater. However, based on
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historical data, on average, less than 10 been described instead, for example, by proposed fee should encourage applications per year contained name and a publication or accession applicants to draft their specifications sequence listing files greater than reference. Further, claims such that sequence data that is not 300MB. Based on previously filed accompanying such applications were essential material is not required to be applications with lengthy sequence frequently directed to the manipulation included in a sequence listing. A listings, the Office determined that some of sequence data rather than the reduced number of mega-sequence applications disclosed sequence data substance of the sequences themselves. listings will benefit the Office and the that met the length thresholds for being Submission of a mega-sequence listing public by reducing the strain on Office included in the sequence listing but that in these applications would not have resources, thus facilitating the effective was neither invented by the applicants been necessary to complete the administration of the patent system. nor claimed. Mega-sequence listings, in application if applicants limited the particular, often included sequences number of sequences that were (b) Design and Plant Search, that were available in the prior art, were described in such a way as to be Examination, and Issue not essential material, and could have required in a sequence listing. The
TABLE 5—DESIGN AND PLANT SEARCH, EXAMINATION, AND ISSUE FEES—FEE CHANGES
Current fees Proposed fees Dollar change Percent change Large Large Large FY 2015 Unit Fee description (small) (small) (small) Large cost [micro] [micro] [micro] (small) entity entity entity [micro] entity
Design Search Fee ...... $120 $160 +$40 +33% $397 ($60) ($80) (+$20) (+33%) [$30] [$40] [+$10] [+33%] Plant Search Fee ...... $380 $420 +$40 +11% $1,773 ($190) ($210) (+$20) (+11%) [$95] [$105] [+$10] [+11%] Design Examination Fee ...... $460 $600 +$140 +30% $608 ($230) ($300) (+$70) (+30%) [$115] [$150] [+$35] [+30%] Design Issue Fee ...... $560 $800 +$240 +43% $314 ($280) ($400) (+$120) (+43%) [$140] [$200] [+$60] [+43%] Plant Issue Fee ...... $760 $1,000 +$240 +32% $314 ($380) ($500) (+$120) (+32%) [$190] [$250] [+$60] [+32%]
Design and plant patents are unlike maintenance fees and the fact that the fees with costs by bringing both utility patents in that they do not pay majority of design applicants are small application types closer to aggregate maintenance fees after the patent has and micro entities who are eligible to cost recovery while maintaining some been granted. Under the current utility pay reduced fees, the Office currently subsidization. In an effort to limit cost- fee structure, entry costs (filing, search, does not recover the costs to examine based entry barriers for these and examination fees) are intentionally design and plant patent applications application types, the Office proposes set below the full cost of performing this solely from design and plant application the largest increase, in terms of dollars, service as a means to foster innovation. fees. Instead, these costs are being for the issue fee. Then, the full cost of examination is subsidized by other application types (c) Request for Continued Examination recovered through the payment of issue (e.g., utility) and processes. The (RCE)—First and Second and and maintenance fees. Given the lack of proposed fees would better align the Subsequent Request
TABLE 6—REQUEST FOR CONTINUED EXAMINATION (RCE) FEE CHANGES
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Request for Continued Examination (RCE)—1st Request (see 37 CFR 1.114) ...... $1,200 $1,300 +$100 +8% $2,187 ($600) ($650) (+$50) (+8%) [$300] [$325] [+$25] [+8%] Request for Continued Examination (RCE)—2nd and Sub- sequent Request (see 37 CFR 1.114) ...... $1,700 $1,900 +$200 +12% $1,540 ($850) ($950) (+$100) (+12%) [$425] [$475] [+$50] [+12%]
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The proposed moderate increases to from $1,700 to $1,900 for large entities, filings currently provided by other RCE fees directly support the fee setting a $200 increase (12 percent). The FY patent fees. In addition to the fee policy factor to align fees with costs. 2015 cost to examine a second and adjustments, the USPTO is committed The Office’s proposed increase would subsequent RCE was $1,540. When to focusing on initiatives that will more closely align the fee rates with the factoring filings by small and micro reduce the need for RCEs. Examples of cost of processing RCEs, as calculated entities, second and subsequent RCE initiatives the Office has already using the most recently available cost fees fully collected the complete implemented to reduce the need for data (FY 2015). Specifically, the Office examination cost in FY 2015. When RCEs include the QPIDS pilot program proposes to increase the first RCE fee combined, first and second and (http://www.uspto.gov/patent/ rate from $1,200 to $1,300 for large subsequent RCE fees collected 62.5 initiatives/quick-path-information- entities, a $100 increase (8 percent). The percent of the examination costs. In disclosure-statement-qpids) and the FY 2015 cost to examine a first RCE was order to approach cost recovery and $2,187. When factoring in filings by limit the increase to the first RCE fee AFCP 2.0 (http://www.uspto.gov/patent/ small and micro entities, first RCE fees rate, the Office proposes a slightly larger initiatives/after-final-consideration- collected 48.8 percent of their aggregate increase for the second and subsequent pilot-20). Additionally, the recently examination costs in FY 2015. When RCE fee rate. Had this fee structure been announced Enhanced Patent Quality discussing RCEs, it is helpful to in place in FY 2015, the Office would Initiative (http://www.uspto.gov/patent/ recognize the impact of small entity have recovered 68.6 percent of RCE initiatives/enhanced-patent-quality- discounts on the Office’s costs. costs as opposed to the 62.5 percent that initiative-0) will be evaluating and Specifically, while small and micro was realized. In FY 2015, the Office strengthening work products, processes, entity fee rates are reduced by 50 collected fees for 112,634 first RCEs and and services at all stages of the patent percent and 75 percent respectively, the for 57,931 second and subsequent RCEs. process. cost of processing these actions is not While this fee structure will not reduced accordingly. achieve full cost recovery for RCEs, it (d) Information Disclosure Statements The Office proposes to increase the will bring collections closer to cost and (IDS) second and subsequent RCE fee rate therefore reduce the subsidy for RCE
TABLE 7—IDS—FEE CHANGES AND UNIT COSTS
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Submission of an Information Disclosure Statement ...... $180 $240 +$60 +33% n/a ($90) ($120) (+$30) (+33%) [$45] [$60] [+$15] [+33%]
The Office proposed new procedural Instead, the Office proposes to increase response to the Office’s initial patent fee rules and fee rates for the Information the submission fee from $180 to $240. setting proposal, the Office aims to keep Disclosure Statement practices in its The Office proposes the adjustment in the fee rate low enough to encourage initial proposal to PPAC. Based on the an effort to optimally set the fee to timely filings during the time period feedback received, the Office encourage early submission of an IDS (and under the conditions) when the fee determined not to move forward with when possible. However, based on would be required. the changes to the IDS procedural rules. stakeholder feedback offered in (e) Certificate of Correction Fees
TABLE 8—CERTIFICATE OF CORRECTION FEES—FEE CHANGES AND UNIT COSTS
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Certificate of Correction ...... $100 $150 +$50 +50% $93
The Office proposes to increase the disclosure of needed corrections when of this fee, issue a certificate of fee for a certificate of correction by $50 an error has been identified. Whenever correction, if the correction does not to $150. The Office proposes the a mistake of a clerical or typographical involve such changes in the patent as adjustment in an effort to encourage nature, or of minor character, which was would constitute new matter or would applicants to submit accurate not the fault of the USPTO, appears in require reexamination. information initially, while at the same a patent and a showing has been made time not increasing the rate too much that such mistake occurred in good (f) Request for Ex Parte Reexamination above unit cost recovery to discourage faith, the Director may, upon payment Fees
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TABLE 9—REQUEST FOR EX PARTE REEXAMINATION FEES—FEE CHANGES AND UNIT COSTS
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Ex Parte Reexamination (§ 1.510(a)) Streamlined ...... new $6,000 +$6,000 n/a n/a ($3,000) (+$3,000) [$1,500] [+$1,500]
The Office proposes to establish a printed publication relied upon in the The Office deems conclusions and/or new fee for smaller, streamlined request pursuant to 37 CFR 1.510(b)(3); definitions to be argumentative. For reexamination filings. The streamlined (b) the copy of the entire patent for example, a request that includes 40 filings would reduce the cost to the which reexamination is requested pages of argument and a 41st page that USPTO, allowing the Office to pass on pursuant to 37 CFR 1.510(b)(4); and (c) includes conclusions or definitions the cost savings to applicants. The the certifications required pursuant to would be deemed to be a request having proposed fee would apply to ex parte 37 CFR 1.510(b)(5) and (6). Completed greater than 40 pages. A page that reexamination requests having: (i) 40 forms such as the Request for Ex Parte consists solely of a signature will not be Pages or less; (ii) lines that are double- Reexamination Transmittal Form (PTO/ included in the page limit. The spaced or one-and-a-half spaced; (iii) SB/57) or the information disclosure determination of whether a paper text written in a non-script type font statement form (PTO/SB/08), or their contains argument will be within the such as Arial, Times New Roman, or equivalents, will also be excluded from sole discretion of the Office. Courier; (iv) a font size no smaller than (i) through (v). Claim charts will be Note that micro entity status is only 12 point; (v) margins which conform to considered part of the request and will available to patent owner requesters, not the requirements of 37 CFR be included in the page limit. Any paper to third party requesters. The change is 1.52(a)(1)(ii); and (vi) sufficient clarity containing argument directed to the consistent with the USPTO’s fee setting and contrast to permit direct patentability or unpatentability of the policy factors to align fees to costs, offer reproduction and electronic capture by claims, such as an affidavit or additional processing options, and use of digital imaging and optical declaration, will be included in the page facilitate the effective administration of character recognition. The following limit and subject to the above the patent system, and is also consistent parts of an ex parte reexamination requirements. If only a portion of the with the requirements of 35 U.S.C. 123. request are excluded from (i) through (v) paper contains argument, the entire above: (a) The copies of every patent or paper will be included in the page limit. (g) Appeal Fees
TABLE 10—APPEAL—FEE CHANGES AND UNIT COSTS
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Notice of Appeal ...... $800 $1,000 +$200 +25% $45 ($400) ($500) (+$100) (+25%) [$200] [$250] [+$50] [+25%] Forwarding an Appeal in an Application or Ex parte Reex- amination Proceeding to the Board ...... $2,000 $2,500 +$500 +25% $4,815 ($1000) ($1,250) (+$250) (+25%) [$500] [$625] [+$125] [+25%]
At the current fee rate, the fee paid for 27,000 (in 2012) and has now fallen to Entity Pilot Program. The proposal an ex parte appeal only covers 58 under 19,000 (in April 2016). As of the would allow the Office to better align percent of the Office’s cost for an end of fiscal year 2015, the average fees to costs by reducing the gap appeal. The proposed fee increase will pendency for decided ex parte appeals between the amount paid by an result in ex parte appeal fees covering was 30 months. The Office aspires to appellant and the fully burdened cost of 72 percent of the Office’s cost to reach an appeals pendency goal of 12 reviewing appeals by the Board. The conduct an ex parte appeal. months by the end of FY 2018 and to additional revenue supports continued In the past few years, the Office has further reduce the existing inventory. As improvements to pendency and made great strides in reducing the mentioned in Part III, the PTAB is inventory via enhanced technology. backlog and pendency for ex parte working to reduce inventory via two (h) AIA Trials appeals. Appeal inventory reached over pilot programs, EPAP and the Small
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TABLE 11—AIA TRIALS—FEE CHANGES AND UNIT COSTS
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Inter Partes Review Request Fee—Up to 20 Claims ...... $9,000 $14,000 +$5,000 +56 $22,165 Inter Partes Review Post-Institution Fee—Up to 15 Claims $14,000 $16,500 +$2,500 +18 $12,674 Inter Partes Review Request of Each Claim in Excess of 20 ...... $200 $300 +$100 +50 n/a Inter Partes Post-Institution Request of Each Claim in Ex- cess of 15 ...... $400 $600 +$200 +50 n/a Post-Grant or Covered Business Method Review Request Fee—Up to 20 Claims ...... $12,000 $16,000 +$4,000 +33 $16,213 Post-Grant or Covered Business Method Review Post-In- stitution Fee—Up to 15 Claims ...... $18,000 $22,000 +$4,000 +22 $23,060 Post-Grant or Covered Business Method Review Request of Each Claim in Excess of 20 ...... $250 $375 +$125 +50 n/a Post-Grant or Covered Business Method Review Post-In- stitution Request of Each Claim in Excess of 15 ...... $550 $825 +$275 +50 n/a
The AIA established two new trial due upon the filing of a petition. The institution. This period can be extended proceedings: Inter partes review and USPTO will refund the post-institution for good cause for up to six months from post-grant review. Inter partes review is fee if the IPR proceeding is not the date of one year after instituting the a trial proceeding created by the AIA instituted by the PTAB. review. that allows the Office to review the Post-grant review is a trial proceeding In FY 2015, the PTAB received over patentability of one or more claims in a created by the AIA that allows the 1,900 AIA trial filings and the Office patent only on a ground that could be Office to review the patentability of one expects that number to grow in the raised under 35 U.S.C. 102 or 103, and or more claims in a patent on any coming fiscal years. In order to keep up only on the basis of prior art consisting ground that could be raised under 35 with demand and continue to provide of patents or printed publications. The U.S.C. 282(b)(2) and (b)(3) in effect on high quality decisions within the inter partes review process begins with September 16, 2012. The post-grant statutory time limits, the Office needs to a third party filing a petition. An inter review process begins when a third close the gap between the cost and the partes review may be instituted upon a party files a petition within nine months fees for performing these services. When showing that there is a reasonable of the grant of the patent. A post-grant the fees for these services were initially set, the Office had to estimate what the likelihood that the petitioner would review may be instituted upon a costs would be without the benefit of prevail with respect to at least one claim showing that it is more likely than not historical cost information. Now that the challenged. If the proceeding is that at least one challenged claim is trials have been in place for three fiscal instituted and not dismissed, a final unpatentable or that the petition raises years, the Office has actual historical determination by the Board will be an unsettled legal question that is cost data available to more accurately issued within one year (extendable for important to other patents or patent set these fees and recover costs. good cause by six months). The Office applications. If the trial is instituted and proposes to increase all four separate not dismissed, the Board will issue a (i) Patent Cooperation Treaty (PCT)— fees for inter partes review, which are final determination within one year of International Stage
TABLE 12—PATENT COOPERATION TREATY (PCT)—INTERNATIONAL STAGE—FEE CHANGES AND UNIT COSTS
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Late Furnishing Fee for Providing a Sequence Listing in Re- new ...... $300 +$300 n/a n/a sponse to an Invitation Under PCT Rule 13ter. ($150) (+$150) [$75] [+$75]
The Office proposes a new fee to sequence listing in searchable format Authority (IPEA/US), must issue an encourage timely filing of sequence with the international application or invitation to the applicant to provide listings in international applications as provides a defective sequence listing, the missing or corrected sequence another way to facilitate the effective the United States, acting as International listing. This additional process creates a administration of the patent system. Searching Authority (ISA/US) or as delay in the issuance of the When an applicant does not provide a International Preliminary Examining International Search Report (ISR) or
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International Preliminary Report on require payment of maintenance fees for and other patent enrollment fees. In Patentability (Chapter II). The most each reissue patent, instead of a single addition to the proposed fee rate recent data shows that the ISA/US maintenance fee payment for the group changes, there are five new fees being issues ISRs within 16 months of the of reissue patents. The large majority of proposed in this section. The purpose of priority date for 75 percent of all reissue patents are granted after the first amending the fees in this section is to international applications searched by stage maintenance fee payment has better align fees with actual costs. the ISA/US. However, when the ISA/US already been paid on the initial patent. During the previous patent fee setting issues an invitation to provide a Over the last six years, approximately effort, historical cost information for sequence listing, the ISA/US issues ISRs 150 reissue patents per year would have these activities was not available. Since within 16 months in only 28 percent of been subject to additional fees due to then, the Office has developed cost those international applications. The this proposed rule change. This is a information to more appropriately time limit for issuance of the ISR under significantly higher level than the Office PCT Rule 42 in most circumstances is experienced prior to FY 2010. For propose fee adjustments. No enrollment 16 months from the priority date. This example, between FY 2003 and FY or disciplinary fees have been increased new fee will help compensate the Office 2009, the average was 27 per year. The since 2008, and only two fees were for the extra work associated with Office expects this change in practice to adjusted that year. All other enrollment issuing the invitation and handling the encourage patent owners to prioritize and disciplinary fees were last changed response, while better positioning the which reissue patents they want to much earlier, specifically, between 1991 Office to meet applicable treaty maintain. If an owner wishes to and 2004. In fact, one OED fee has been timeframes. The fee is similar in size maintain all reissue patents in force, he unchanged since 1982. As time passes, and scope to fees charged by other or she may do so by paying the the difference between the fee charged international intellectual property appropriate maintenance fees. For by the Office and the cost to the Office offices. reissue patents that are not maintained, to perform the service increases, subject matter previously covered by the (j) Maintenance Fee Payments—Reissue resulting in greater subsidies by other patent would become available in the Patent Rules patent fees. The increases to these fees public domain to improve upon and will help to close the gap between the For each issued patent, the Office may further foster innovation. fee charged and the cost to perform the grant one or more reissue patents. service. A discussion of the rationale for However, current practice dictates that (2) Office of Enrollment and Discipline each fee change follows. only one maintenance fee is required for Fees and Patent Enrollment Fees all of the possible reissue patents The following proposed fee granted from a single patent. This adjustments are comprised of Office of proposed change of practice would Enrollment and Discipline (OED) fees
TABLE 13—OED AND PATENT ENROLLMENT—FEE CHANGES AND UNIT COSTS
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Application Fee (Non-Refundable) ...... $40 $100 +$60 +150% $225 On Registration to Practice Under § 11.6 ...... $100 $200 +$100 +100% $493 Certificate of Good Standing as an Attorney or Agent, Standard ...... $10 $40 +$30 +300% $39 Certificate of Good Standing as an Attorney or Agent, Suitable for Framing ...... $20 $50 +$30 +150% $49 Review of Decision by the Director of Enrollment and Dis- cipline Under § 11.2(c) ...... $130 $400 +$270 +208% $2,044 Review of Decision of the Director of Enrollment and Dis- cipline Under § 11.2(d) ...... $130 $400 +$270 +208% $1,827 Administrative Reinstatement Fee ...... $100 $200 +$100 +100% $940 On Grant of Limited Recognition Under § 11.9(b) ...... $100 $200 +$100 +100% $493 For USPTO-Assisted Recovery of ID or Reset of Pass- word for the Office of Enrollment and Discipline Informa- tion System ...... new $70 +$70 n/a n/a For USPTO-Assisted Change of Address Within the Office of Enrollment and Discipline Information System ...... new $70 +$70 n/a n/a For USPTO-Administered Review of Registration Exam- ination ...... new $450 +$450 n/a $515
The Office proposes to increase the § 11.9(b) or (c) is currently set at $100, which is still below the historical cost application fee for admission to the and both transactions have the same fee of performing these services. The Office examination for registration to practice code. The Office proposes to separate proposes eliminating the reference to from $40 to $100, about half of the the fee for Registration to Practice from § 11.9(c) in the current provision. The historical cost of this service. the fee for Grant of Limited Recognition Office does not presently impose a fee The fee for registration to practice or and increase the fee for each to $200, for an unregistered individual to for a grant of limited recognition under
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prosecute an international patent The Office proposes to set the fee for cost burden of providing the review application in the manner described in administrative reinstatement at $200. sessions. A private commercial entity § 11.9(c). The Office proposes to use the Reinstatement fees are imposed on currently provides this service to the existing fee code for Registration to practitioners seeking to be reinstated to public at a lower cost than the USPTO. Practice fees and create a new fee code active status. Raising the fee, while still The availability of the private-sector for Grant of Limited Registration. set far below cost recovery, will help option has reduced demand for the The Office is proposing an increase to close the gap between the fee and the USPTO-provided sessions and therefore the fee for the delivery of a certificate cost for performing this service. increased the cost per registrant of of good standing. A practitioner may The Office proposes to create and set USPTO-provided sessions. also request a certificate of good the fee for USPTO-assisted reset of user The Office proposes to set the fee for standing as an attorney or agent that has IDs and passwords for an OED changing a practitioner’s registration been authentically signed by the Information System—Customer status from agent to attorney. The Office Director of OED and crafted for framing. Interface (OEDIS–CI) account at $70. currently charges $100 for this service. The Office proposes to increase the fee The enhancement of the OEDIS–CI was As proposed, the fee would remain for both of these services to cost implemented in FY 2015. With this unchanged; however, 37 CFR recovery, $40 and $50, respectively. enhancement, customers are now able to 1.21(a)(2)(iii) would specifically provide The Office proposes to increase the perform this process on-line as a self- for this fee. fees for petitions to the OED Director service option free of charge. The regarding enrollment or recognition. proposed fee would only be charged if (3) Fees Amended To Include Discounts However, the proposed fees are still it was requested that the USPTO for Small and Micro Entities significantly below cost recovery. Any perform this task instead of the self- petition from any action or requirement service option. Within this section, where new micro of the staff of OED reporting to the OED The Office proposes to create and set entity fees are proposed, it is expected Director shall be taken to the OED the fee for USPTO-assisted roster that an applicant or patent holder would Director accompanied by payment of the maintenance (change of address) in an have paid the current small entity fee fee, proposed at $400. OEDIS–CI account at $70. With the (or large entity in the event there is not The Office proposes to adjust the fees OEDIS–CI enhancement, customers are a small entity fee) and dollar and for a review of OED Director’s decision now able to perform this process on-line percent changes are calculated from the regarding enrollment or recognition. A as a self-service method free of charge. current small entity fee amount (or large party dissatisfied with a final decision The proposed fee would only be entity fee, where applicable). The of the OED Director regarding charged if it was requested that the following table lists fees where new enrollment or recognition may seek USPTO perform this task instead of the small and/or micro entities are review of the decision upon petition to self-service option. provided. Providing these fee reductions the USPTO Director accompanied by The Office proposes to set the fee for for small and micro entity innovators payment of the fee, proposed at $400. a registration examination review will continue the Office’s efforts to This fee is being increased, but is still session at $450. Setting this fee at cost foster innovation across all patent set significantly below cost recovery. recovery relieves the administrative and system users.
TABLE 14—AMENDED FEES TO INCLUDE DISCOUNTS FOR SMALL AND MICRO ENTITIES—FEE CHANGES AND UNIT COSTS
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Petition for the Delayed Payment of the Fee for Maintain- ing a Patent in Force ...... $1,700 $2,000 +$300 +18% $121 ($850) ($1,000) (+$150) (+18%) [$850] [$500] [¥$350] [¥41%] Petition for Revival of an Abandoned Application for a Pat- ent, for the Delayed Payment of the Fee for Issuing Each Patent, or for the Delayed Response by the Pat- ent Owner in any Reexamination Proceeding ...... $1,700 $2,000 +$300 +18% $244 ($850) ($1,000) (+$150) (+18%) [$850] [$500] [¥$350] [¥41%] Petition for the Delayed Submission of a Priority or Benefit Claim ...... $1,700 $2,000 +$300 +18% $244 ($850) ($1,000) (+$150) (+18%) [$850] [$500] [¥$350] [¥41%] Petition to Excuse Applicant’s Failure to Act Within Pre- scribed Time Limits in an International Design Applica- tion ...... $1,700 $2,000 +$300 +18% n/a ($850) ($1,000) (+$150) (+18%) [$850] [$500] [¥$350] [¥41%] Petition to Convert an International Design Application to a Design Application Under 35 U.S.C. Chapter 16 ...... $180 $180 $0 0% n/a ($180) ($90) (¥$90) (¥50%) [$180] [$45] [¥$135] [¥75%]
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TABLE 14—AMENDED FEES TO INCLUDE DISCOUNTS FOR SMALL AND MICRO ENTITIES—FEE CHANGES AND UNIT COSTS—Continued
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Hague International Design Application Fees—Transmittal Fee ...... $120 $120 $0 0% n/a ($120) ($60) (¥$60) ¥50% [$120] [$30] [¥$90] ¥75%
C. Discontinued or Replaced Fees clearly inform customers of costs fees that are being discontinued because upfront, and align with the Office’s new of disuse. The Office does not capture This section describes fees that are historical cost information for these being discontinued and replaced with financial software for which fixed fee proposed discontinued or new fees. new fees. The purpose of this action is rates, not variable (e.g., at cost) are to simplify the fee schedule, more preferred. This section also includes (a) Discontinued and Replaced
TABLE 15—DISCONTINUED FEES WITH NEW FEE REPLACEMENTS
Current fees Proposed fees Dollar change Percent change Fee description Large Large Large Large FY 2015 Unit (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Copy of Patent-Related File Wrapper and Contents of 400 or Fewer Pages, if Provided on Paper ...... $200 discontinue ¥$200 n/a n/a Additional Fee for Each Additional 100 Pages of Patent- Related File Wrapper and (Paper) Contents, or Portion Thereof ...... $40 discontinue ¥$40 n/a n/a Copy Patent File Wrapper, Paper Medium, Any Number of Sheets ...... new $280 +$280 n/a n/a Copy of Patent-Related File Wrapper and Contents if Pro- vided on a Physical Electronic Medium as Specified in 1.19(b)(1)(ii) ...... $55 discontinue ¥$55 n/a n/a Copy of Patent-Related File Wrapper and Contents if Pro- vided Electronically ...... $55 discontinue ¥$55 n/a n/a Additional Fee for Each Continuing Physical Electronic Medium in Single Order of 1.19(b)(1)(ii)(B) ...... $15 discontinue ¥$15 n/a n/a Copy Patent File Wrapper, Electronic Medium, Any Size or Provided Electronically ...... new $55 +$55 n/a n/a Computer Records ...... at cost discontinue at cost n/a n/a Copy of Patent Grant Single-Page TIFF Images (52 week subscription) ...... new $10,400 +$10,400 n/a n/a Copy of Patent Grant Full-Text W/Embedded Images, Pat- ent Application Publication Single-Page TIFF Images, or Patent Application Publication Full-Text W/Embedded Images (52 week subscription) ...... new $5,200 +$5,200 n/a n/a Copy of PTMT Patent Bibliographic Extract and Other DVD (Optical Disc) Products ...... new $50 +$50 n/a n/a Copy of U.S. Patent Custom Data Extracts ...... new $100 +$100 n/a n/a Copy of Selected Technology Reports, Miscellaneous Technology Areas ...... new $30 +$30 n/a n/a Labor Charges for Services, per Hour or Fraction Thereof $40 discontinue ¥$40 n/a n/a Additional Fee for Overnight Delivery ...... new $40 +$40 n/a n/a Additional Fee for Expedited Service ...... new $160 +$160 n/a n/a
There are currently pairs of fees for allow customers to more easily budget Patent Grant Single-Page TIFF Images copying patent-related file wrappers: A and plan expenses for this service. (52 week subscription); Copy of Patent base fee and an excess fee. For both The catch-all fee of ‘‘Computer Grant Full-Text W/Embedded Images, paper copies and electronic copies, Records’’ currently priced ‘‘at cost’’ is Patent Application Publication Single- these pairs are replaced with a single fee being replaced by five fees that Page TIFF Images, or Patent Application irrespective of size. A single fee will encompass the work currently Publication Full-Text W/Embedded performed using this code: Copy of Images (52 week subscription); Copy of
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Patent Technology Monitoring Team expedited weekly packages (one for referenced earlier, BDSS and PDD since (PTMT) Patent Bibliographic Extract each Tuesday in the Calendar Year) via October 2015 and June 2013 and Other DVD (Optical Disc); Copy of United Parcel Service. Each package respectively. U.S. Patent Custom Data Extracts; and contains at a minimum one Blu-ray and Similar to the single fee for copying Copy of Selected Technology Reports, one DVD optical disc. For the other Patent-Related File Wrappers, the Miscellaneous Technology Areas. three services listed for $5,200, the Explicitly stating the service and fee at expedited weekly packages (one for ‘‘Labor Charge’’ per hour with its the start will provide customers clearer each Tuesday or Thursday in the variable charges is replaced with a information to aid decision making. Calendar Year) typically contain either single fee for ‘‘Expedited Service.’’ These specific fees recover the a single Blu-ray or DVD optical disc. As Following the same theme, shorter than USPTO’s costs for processing, an alternative to requesting and paying standard shipping is currently billed validating, packaging, and shipping of for these services, the USPTO has under a catch-all code but will now be these products to customers worldwide. provided customers the ability to replaced with a set fee for ‘‘Overnight For the copy of Patent Grant Single-Page download this information at no cost Delivery.’’ TIFF Images, when a customer orders since June 2010. This information is (b) Discontinued this service, the customer is sent currently provided in the two locations
TABLE 16—DISCONTINUED FEES
Current fees Proposed fees Dollar change Percent change Large Large Large FY 2015 Unit Fee description Large (small) (small) (small) (small) cost [micro] [micro] [micro] [micro] entity entity entity entity
Self-Service Copy Charge, per Page ...... $0.25 discontinue ¥$0.25 n/a n/a Establish Deposit Account ...... $10 discontinue ¥$10 n/a n/a Uncertified Statement Re: Status of Maintenance Fee Payments ...... $10 discontinue ¥$10 n/a n/a Petitions for documents in form other than that provided by this part, or in form other than that generally pro- vided by Director, to be decided in accordance with merits...... at cost discontinue at cost n/a n/a Copy of Patent-Related File Wrapper Contents That Were Submitted and are Stored on Compact Disk or Other Electronic Form (e.g., Compact Disks Stored in Artifact Folder), Other Than as Available in 1.19(b)(1); First Physical Electronic Medium in a Single Order ...... $55 discontinue ¥$55 n/a n/a Additional Fee for Each Continuing Copy of Patent-Re- lated File Wrapper Contents as Specified in 1.19(b)(2)(i)(A) ...... $15 discontinue ¥$15 n/a n/a Copy of Patent-Related File Wrapper Contents That Were Submitted and are Stored on Compact Disk, or Other Electronic Form, Other Than as Available in 1.19(b)(1); if Provided Electronically Other Than on a Physical Electronic Medium, per Order ...... $55 discontinue ¥$55 n/a n/a
To comply with Presidential this online for more than 10 years. The amendments, all proposed fee Executive Order 13681, Improving the fee associated with ‘‘Petitions for discontinuations, and all proposed Security of Consumer Financial documents in form other than that changes to the CFR text. Transactions, current self-service provided by this part, or in form other Title 37 of the Code of Federal copiers will be discontinued and the than that generally provided by Regulations, Parts 1 and 41, are USPTO will enter into a ‘‘No Cost’’ Director, to be decided in accordance proposed to be amended as follows: contract with a vendor who will keep all with merits’’ is also discontinued due to payments collected in exchange for lack of use. Section 1.16: Section 1.16 is amended providing this service. The remaining fees pertaining to by revising paragraphs (a) through (f) The USPTO’s new Financial Manager Patent-Related File Wrapper copies have and (h) through (r) to set forth the system allows users to create their own never been used since their inception application filing, excess claims, search, deposit accounts so the Office proposes many years ago and therefore are being and examination fees for patent to retire the ‘‘Establish Deposit discontinued. applications filed as authorized under Account’’ fee. The fee associated with VI. Discussion of Specific Rules Section 10 of the Act. The changes to ‘‘Uncertified Statement Re Status of the fee amounts indicated in § 1.16 are Maintenance Fee Payments’’ is The following section shows the CFR shown in Table 17. discontinued due to lack of use. proposed fee amendments. The List of Customers have had the ability to do Subjects includes all proposed fee
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TABLE 17—CFR SECTION 1.16 FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.16(a) ...... 1011/2011/3011 Basic Filing Fee—Utility ...... 280 140 70 300 150 75 1.16(a) ...... 4011 ...... Basic Filing Fee—Utility (electronic n/a 70 n/a n/a 75 n/a filing for small entities). 1.16(b) ...... 1012/2012/3012 Basic Filing Fee—Design ...... 180 90 45 200 100 50 1.16(b) ...... 1017/2017/3017 Basic Filing Fee—Design (CPA) .... 180 90 45 200 100 50 1.16(c) ...... 1013/2013/3013 Basic Filing Fee—Plant ...... 180 90 45 200 100 50 1.16(d) ...... 1005/2005/3005 Provisional Application Filing Fee ... 260 130 65 280 140 70 1.16(e) ...... 1014/2014/3014 Basic Filing Fee—Reissue ...... 280 140 70 300 150 75 1.16(e) ...... 1019/2019/3019 Basic Filing Fee—Reissue (CPA) ... 280 140 70 300 150 75 1.16(f) ...... 1051/2051/3051 Surcharge—Late Filing Fee, 140 70 35 160 80 40 Search Fee, Examination Fee, Inventor’s Oath or Declaration, or Application Filed Without at Least One Claim or by Reference. 1.16(h) ...... 1201/2201/3201 Independent Claims in Excess of 420 210 105 460 230 115 Three. 1.16(h) ...... 1204/2204/3204 Reissue Independent Claims in Ex- 420 210 105 460 230 115 cess of Three. 1.16(i) ...... 1202/2202/3202 Claims in Excess of 20 ...... 80 40 20 100 50 25 1.16(i) ...... 1205/2205/3205 Reissue Claims in Excess of 20 ..... 80 40 20 100 50 25 1.16(j) ...... 1203/2203/3203 Multiple Dependent Claim...... 780 390 195 820 410 205 1.16(k) ...... 1111/2111/3111 Utility Search Fee...... 600 300 150 660 330 165 1.16(l) ...... 1112/2112/3112 Design Search Fee ...... 120 60 30 160 80 40 1.16(m) ...... 1113/2113/3113 Plant Search Fee ...... 380 190 95 420 210 105 1.16(n) ...... 1114/2114/3114 Reissue Search Fee...... 600 300 150 660 330 165 1.16(o) ...... 1311/2311/3311 Utility Examination Fee...... 720 360 180 760 380 190 1.16(p) ...... 1312/2312/3312 Design Examination Fee...... 460 230 115 600 300 150 1.16(q) ...... 1313/2313/3313 Plant Examination Fee...... 580 290 145 620 310 155 1.16(r) ...... 1314/2314/3314 Reissue Examination Fee ...... 2,160 1,080 540 2,200 1,100 550
Section 1.17: Section 1.17 is amended fees as authorized under Section 10 of indicated in § 1.17 are shown in Table by revising paragraphs (e), (m), (p), and the Act. The changes to the fee amounts 18. (t) to set forth the application processing TABLE 18—CFR SECTION 1.17 FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.17(e) ...... 1801/2801/3801 Request for Continued Examination 1,200 600 300 1,300 650 325 (RCE) (1st request) (see 37 CFR 1.114). 1.17(e) ...... 1820/2820/3820 Request for Continued Examination 1,700 850 425 1,900 950 475 (RCE) (2nd and subsequent re- quest). 1.17(m) ...... 1453/2453/3453 Petition for revival of an abandoned 1,700 850 850 2,000 1,000 500 application for a patent, for the delayed payment of the fee for issuing each patent, or for the delayed response by the patent owner in any reexamination pro- ceeding. 1.17(m) ...... 1454/2454/3454 Petition for the Delayed Submission 1,700 850 850 2,000 1,000 500 of a Priority or Benefit Claim. 1.17(m) ...... 1784/2784/3784 Petition to Excuse Applicant’s Fail- 1,700 850 850 2,000 1,000 500 ure to Act Within Prescribed Time Limits in an International Design Application. 1.17(m) ...... 1558/2558/3558 Petition for the Delayed Payment of 1,700 850 850 2,000 1,000 500 the Fee for Maintaining a Patent in Force. 1.17(p) ...... 1806/2806/3806 Submission of an Information Dis- 180 90 45 240 120 60 closure Statement. 1.17(t) ...... 1783/2783/3783 Petition to convert an international 180 180 180 180 90 45 design application to a design application under 35 U.S.C. chapter 16.
Section 1.18: Section 1.18 is amended authorized under Section 10 of the Act. indicated in § 1.18 are shown in Table by revising paragraphs (a)(1), (b)(1), and The changes to the fee amounts 19. (c)(1) to set forth the patent issue fees as
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Section 1.18(b)(3) is proposed to be pursuant to Hague Agreement Rule 28 fee due whether paid directly to the amended to provide that the issue fee as of the date of mailing of the notice USPTO or through the International for issuing an international design of allowance (§ 1.311). The proposed Bureau in the event the issue fee application designating the United amendment would facilitate processing changes after the mailing of the notice States, where the issue fee is paid of the issue fee by the International of allowance. through the International Bureau, is the Bureau and would maintain parity in amount established in Swiss currency the treatment of the amount of the issue TABLE 19—CFR SECTION 1.18 FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.18(a)(1) ...... 1501/2501/3501 Utility Issue Fee...... 960 480 240 1,000 500 250 1.18(a)(1) ...... 1511/2511/3511 Reissue Issue Fee...... 960 480 240 1,000 500 250 1.18(b)(1) ...... 1502/2502/3502 Design Issue Fee...... 560 280 140 800 400 200 1.18(c)(1) ...... 1503/2503/3503 Plant Issue Fee ...... 760 380 190 1,000 500 250
Section 1.19: Section 1.19 is amended and (g); and adding (i) through (m) to set Act. The changes to the fee amounts by revising paragraphs (b)(1), (b)(2), and forth the patent document supply fees indicated in § 1.19 are shown in Table (b)(4); removing and reserving (b)(2), (e), as authorized under Section 10 of the 20. TABLE 20—CFR SECTION 1.19 FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.19(b)(1)(i)(A) 8007 ...... Copy of Patent Application as Filed 20 20 20 35 35 35 and (ii)(A). 1.19(b)(1)(i)(B) ...... Copy of Patent File Wrapper, n/a n/a n/a 280 280 280 Paper Medium, Any Number of Sheets. 1.19(b)(1)(ii)(B) ...... Copy Patent File Wrapper, Elec- n/a n/a n/a 55 55 55 tronic Medium, Any Size or Pro- vided Electronically. 1.19(b)(4) ...... 8014 ...... For Assignment Records, Abstract 25 25 25 35 35 35 of Title and Certification, per Pat- ent. 1.19(i) ...... Copy of Patent Grant Single-Page n/a n/a n/a 10,400 10,400 10,400 TIFF Images (52 week subscrip- tion). 1.19(j) ...... Copy of Patent Grant Full-Text W/ n/a n/a n/a 5,200 5,200 5,200 Embedded Images, Patent Appli- cation Publication Single-Page TIFF Images, or Patent Applica- tion Publication Full-Text W/Em- bedded Images (52 week sub- scription). 1.19(k) ...... Copy of PTMT Patent Bibliographic n/a n/a n/a 50 50 50 Extract and Other DVD (Optical Disc) Products. 1.19(l) ...... Copy of U.S. Patent Custom Data n/a n/a n/a 100 100 100 Extracts. 1.19(m) ...... Copy of Selected Technology Re- n/a n/a n/a 30 30 30 ports, Miscellaneous Technology Areas.
Section 1.20: Section 1.20 is amended fees, disclaimer fees, and maintenance The changes to the fee amounts by revising paragraphs (a), (b), (c)(1) fees as authorized under Section 10 of indicated in § 1.20 are shown in Table through (4), and (e) through (g) to set the Act and to provide a new fee for 21. forth the reexamination excess claims streamlined requests for reexamination. TABLE 21—CFR SECTION 1.20 FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.20(a) ...... 1811 ...... Certificate of Correction...... 100 100 100 150 150 150 1.20(b) ...... 1816 ...... Processing Fee for Correcting 130 130 130 150 150 150 Inventorship in a Patent. 1.20(c)(1) ...... Ex Parte Reexamination n/a n/a n/a 6,000 3,000 1,500 (§ 1.510(a)) Streamlined.
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TABLE 21—CFR SECTION 1.20 FEE CHANGES—Continued
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.20(c)(2) ...... 1812/2812/3812 Ex Parte Reexamination 12,000 6,000 3,000 12,000 6,000 3,000 (§ 1.510(a)) Non-Streamlined. 1.20(c)(3) ...... 1821/2821/3821 Reexamination Independent Claims 420 210 105 460 230 115 in Excess of Three and also in Excess of the Number of Such Claims in the Patent Under Re- examination. 1.20(c)(4) ...... 1822/2822/3822 Reexamination Claims in Excess of 80 40 20 100 50 25 20 and Also in Excess of the Number of Claims in the Patent Under Reexamination.
Section 1.21: Section 1.21 is amended (g) and (j); and adding paragraphs (o), Section 10 of the Act. The changes to by revising paragraphs (a), (h)(2), and (p), and (q) to set forth miscellaneous the fee amounts indicated in § 1.21 are (i); removing and reserving paragraphs fees and charges as authorized under shown in Table 22. TABLE 22—CFR SECTION 1.21 FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.21(a)(1)(i) ...... 9001 ...... Application Fee (non-refundable) ... 40 40 40 100 100 100 1.21(a)(1)(ii)(A) ... 9010 ...... For Test Administration by Com- 200 200 200 200 200 200 mercial Entity. 1.21(a)(1)(ii)(B) ... 9011 ...... For Test Administration by the 450 450 450 450 450 450 USPTO. 1.21(a)(1)(iii) ...... For USPTO-Administered Review n/a n/a n/a 450 450 450 of Registration Examination. 1.21(a)(2)(i) ...... 9003 ...... On Registration to Practice Under 100 100 100 200 200 200 § 11.6. 1.21(a)(2)(ii) ...... On Grant of Limited Recognition n/a n/a n/a 200 200 200 under § 11.9(b). 1.21(a)(2)(iii) ...... 9025 ...... On change of registration from 100 100 100 100 100 100 agent to attorney. 1.21(a)(4)(i) ...... 9005 ...... Certificate of Good Standing as an 10 10 10 40 40 40 Attorney or Agent, Standard. 1.21(a)(4)(ii) ...... 9006 ...... Certificate of Good Standing as an 20 20 20 50 50 50 Attorney or Agent, Suitable for Framing. 1.21(a)(5)(i) ...... 9012 ...... Review of Decision by the Director 130 130 130 400 400 400 of Enrollment and Discipline under § 11.2(c). 1.21(a)(5)(ii) ...... 9013 ...... Review of Decision of the Director 130 130 130 400 400 400 of Enrollment and Discipline under § 11.2(d). 1.21(a)(6)(i) ...... For USPTO-Assisted Recovery of n/a n/a n/a 70 70 70 ID or Reset of Password for the Office of Enrollment and Dis- cipline Information System. 1.21(a)(6)(ii) ...... For USPTO-Assisted Change of n/a n/a n/a 70 70 70 Address Within the Office of En- rollment and Discipline Informa- tion System. 1.21(a)(9)(ii) ...... 9004 ...... Administrative Reinstatement Fee.. 100 100 100 200 200 200 1.21(a)(10) ...... 9014 ...... On petition for reinstatement by a 1,600 1,600 1,600 1,600 1,600 1,600 person excluded or suspended on ethical grounds, or excluded on consent from practice before the Office. 1.21(h)(2) ...... 8021 ...... Recording Each Patent Assign- 40 40 40 50 50 50 ment, Agreement or Other Paper, per Property if not Submitted Electronically. 1.21(o)(1) ...... Submission of sequence listings n/a n/a n/a 1,000 1,000 1,000 ranging in size of 300MB to 800MB. 1.21(o)(2) ...... Submission of sequence listings n/a n/a n/a 10,000 10,000 10,000 exceeding 800MB. 1.21(p) ...... Additional Fee for Overnight Deliv- n/a n/a n/a 40 40 40 ery. 1.21(q) ...... Additional Fee for Expedited Serv- n/a n/a n/a 160 160 160 ice.
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Section 1.445: Section 1.445 is sequence listing in response to an changes to the fee amounts indicated in amended by adding paragraph (a)(5) to invitation under PCT Rule 13ter. The § 1.445 are shown in Table 23. set a processing fee for providing a TABLE 23—CFR SECTION 1.445(a)(5) FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.445(a)(5) ...... Late furnishing fee for providing a n/a n/a n/a 300 150 75 sequence listing in response to an invitation under PCT Rule 13ter.
Section 1.482: Section 1.482 is revised providing a sequence listing in response indicated in § 1.482 are shown in Table by changing the title and adding to an invitation under PCT Rule 13ter. 24. paragraph (c) to set a processing fee for The changes to the fee amounts TABLE 24—CFR SECTION 1.482(c) FEE CHANGES
Current fees Proposed fees (dollars) (dollars) CFR section Fee code Description Large Small Micro Large Small Micro
1.482(c) ...... Late furnishing fee for providing a n/a n/a n/a 300 150 75 sequence listing in response to an invitation under PCT Rule 13ter.
Section 1.492: Section 1.492 is claims, search, and examination fees for under Section 10 of the Act. The amended by revising (a) through (f) to international patent applications changes to the fee amounts indicated in set forth the application filing, excess entering the national stage as authorized § 1.492 are shown in Table 25. TABLE 25—CFR SECTION 1.492 FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.492(a) ...... 1631/2631/3631 Basic PCT National Stage Fee ...... 280 140 70 300 150 75 1.492(b)(2) ...... 1641/2641/3641 PCT National Stage Search Fee— 120 60 30 140 70 35 U.S. was the ISA. 1.492(b)(3) ...... 1642/2642/3642 PCT National Stage Search Fee— 480 240 120 520 260 130 Search Report Prepared and Provided to USPTO. 1.492(b)(4) ...... 1632/2632/3632 PCT National Stage Search Fee— 600 300 150 660 330 165 All Other Situations. 1.492(c)(2) ...... 1633/2633/3633 National Stage Examination Fee— 720 360 180 760 380 190 All Other Situations. 1.492(d) ...... 1614/2614/3614 PCT National Stage Claims—Extra 420 210 105 460 230 115 Independent (over three). 1.492(e) ...... 1615/2615/3615 PCT National Stage Claims—Extra 80 40 20 100 50 25 Total (over 20). 1.492(f) ...... 1616/2616/3616 PCT National Stage Claims—Mul- 780 390 195 820 410 205 tiple Dependent.
Section 1.1031: Section 1.1031 is Section 1.1031 is also proposed to be amendment is consistent with the U.S. amended by revising paragraph (a) to set amended by adding paragraph (f) designation fee currently in effect. See forth the international design concerning the designation fee for the ‘‘Individual Fees under the Hague application transmittal fees as United States. As § 1.1031 concerns Agreement,’’ available on the WIPO authorized under Section 10 of the Act. international design application fees, Web site at http://www.wipo.int/hague/ The changes to the fee amounts the Office believes it appropriate to en/fees/individ-fee.html, and § 1.18(b). indicated in § 1.031 are shown in Table include a provision therein regarding 26. the U.S. designation fee. The proposed
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TABLE 26—CFR SECTION 1.1031(a) FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
1.1031(a) ...... 1781/2781/3781 International Design Application 120 120 120 120 60 30 Transmittal Fee.
Section 41.20: Section 41.20 is authorized under Section 10 of the Act. indicated in § 41.20 are shown in Table amended by revising paragraph (b)(1) The changes to the fee amounts 27. and (b)(4) to set forth the appeal fees as TABLE 27—CFR SECTION 41.20 FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
41.20(b)(1) ...... 1401/2401/3401 Notice of Appeal...... 800 400 200 1,000 500 250 41.20(b)(4) ...... 1413/2413/3413 Forwarding an Appeal in an Appli- 2,000 1,000 500 2,500 1,250 625 cation or Ex Parte Reexamina- tion Proceeding to the Board.
Section 42.15: Section 42.15 is and post-grant review or covered the Act. The changes to the fee amounts amended by revising paragraphs (a) and business method patent review of patent indicated in § 42.15 are shown in Table (b) to set forth the inter partes review fees as authorized under Section 10 of 28. TABLE 28—CFR SECTION 42.15 FEE CHANGES
Current fees Proposed fees CFR section Fee code Description (dollars) (dollars) Large Small Micro Large Small Micro
42.15(a)(1) ...... 1406 ...... Inter Partes Review Request Fee .. 9,000 9,000 9,000 14,000 14,000 14,000 42.15(a)(2) ...... 1414 ...... Inter Partes Review Post-Institution 14,000 14,000 14,000 16,500 16,500 16,500 Fee. 42.15(a)(3) ...... 1407 ...... In Addition to the Inter Partes Re- 200 200 200 300 300 300 view Request Fee, for Request- ing Review of Each Claim in Ex- cess of 20. 42.15(a) (4) ...... 1415 ...... In addition to the Inter Partes Post- 400 400 400 600 600 600 Institution Fee, for Requesting Review of Each Claim in Excess of 15. 42.15(b)(1) ...... 1408 ...... Post-Grant or Covered Business 12,000 12,000 12,000 16,000 16,000 16,000 Method Patent Review Request Fee. 42.15(b)(2) ...... 1416 ...... Post-Grant or Covered Business 18,000 18,000 18,000 22,000 22,000 22,000 Method Patent Review Post-Insti- tution Fee. 42.15(b)(3) ...... 1409 ...... In Addition to the Post-Grant or 250 250 250 375 375 375 Covered Business Method Patent Review Request Fee, for Re- questing Review of Each Claim in Excess of 20. 42.15(b)(4) ...... 1417 ...... In Addition to the Post-Grant or 550 550 550 825 825 825 Covered Business Method Patent Review Post-Institution Fee, for Requesting Review of Each Claim in Excess of 15.
VII. Rulemaking Considerations materials furnished, by the Office. account the cost of the respective Section 10 prescribes that fees may be services. Section 10(e) of the AIA sets A. America Invents Act set or adjusted only to recover the forth the general requirements for This rulemaking proposes to set and aggregate estimated costs to the Office rulemakings that set or adjust fees under adjust fees under section 10(a) of the for processing, activities, services, and this authority. In particular, section AIA. Section 10(a) of the AIA authorizes materials relating to patents, including 10(e)(1) requires the Director to publish the Director of the USPTO to set or administrative costs of the Office with in the Federal Register any proposed fee adjust by rule any patent fee respect to such patent fees. Section 10 change under section 10, and include in established, authorized, or charged authority includes flexibility to set such publication the specific rationale under Title 35 of the United States Code individual fees in a way that furthers and purpose for the proposal, including (U.S.C.) for any services performed, or key policy factors, while taking into the possible expectations or benefits
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resulting from the proposed change. For Before the final rule is issued, the public 1. A Description of the Reasons Why the such rulemakings, the AIA requires that will have at least a 45-day period during Action by the Agency Is Being the Office provide a public comment which to provide comments to be Considered period of not less than 45 days. considered by the USPTO. The PPAC advises the Under Section 10 of the Act authorizes the Secretary of Commerce for Intellectual B. Regulatory Flexibility Act Director of the USPTO to set or adjust Property and Director of the USPTO on by rule any patent fee established, The USPTO publishes this Initial the management, policies, goals, authorized, or charged under title 35, Regulatory Flexibility Analysis (IRFA) performance, budget, and user fees of U.S.C., for any services performed, or as required by the Regulatory Flexibility patent operations. When proposing fees materials furnished, by the Office. Act (RFA) (5 U.S.C. 601 et seq.) to under Section 10 of the Act, the Director Section 10 prescribes that patent fees examine the impact on small entities of must provide the PPAC with the may be set or adjusted only to recover the Office’s proposed rule implementing proposed fees at least 45 days prior to the aggregate estimated costs to the changes to patent fees. Under the RFA, publishing the proposed fees in the Office for processing, activities, whenever an agency is required by 5 Federal Register. The PPAC then has at services, and materials relating to least 30 days within which to deliberate, U.S.C. 553 (or any other law) to publish patents, including administrative costs consider, and comment on the proposal, an NPRM, the agency must prepare and to the Office with respect to such patent as well as hold public hearing(s) on the make available for public comment an fees. The proposed fee schedule will proposed fees. The PPAC must make a IRFA, unless the agency certifies under recover the aggregate cost of patent written report available to the public of 5 U.S.C. 605(b) that the proposed rule, operations while facilitating the the comments, advice, and if implemented, will not have a effective administration of the U.S. recommendations of the committee significant impact on a substantial patent system. The reasons why the regarding the proposed fees before the number of small entities. 5 U.S.C. 603, rulemaking is being considered are Office issues any final fees. The Office 605. Given that the proposed fee further discussed in section 6.i below will consider and analyze any schedule is projected to result in $710.8 comments, advice, or recommendations and elsewhere in this IRFA and the million in additional aggregate revenue received from the PPAC before finally NPRM. over the current fee schedule (baseline) setting or adjusting fees. Consistent with this framework, on for the period including FY 2017 to FY 2. The Objectives of, and Legal Basis for, October 20, 2015, the Director notified 2021, the Office acknowledges that the the Proposed Rule fee adjustments proposed will impact the PPAC of the Office’s intent to set or The objective of the proposed rule is adjust patent fees and submitted a all entities seeking patent protection to implement the fee setting provisions preliminary patent fee proposal with and could have a significant impact on of Section 10 of the Act by setting or supporting materials. The preliminary small and micro entities. The $710.8 patent fee proposal and associated million in additional aggregate revenue adjusting patent fees to recover the materials are available at http:// results from an additional $73.2 million aggregate cost of patent operations, www.uspto.gov/about-us/performance- in FY 2017, $150.0 million in FY 2018, including administrative costs, while and-planning/fee-setting-and-adjusting. $155.7 million in FY 2019, $162.4 facilitating the effective administration The PPAC held a public hearing in million in FY 2020, and $169.5 million of the U.S. patent system. Since its Alexandria, Virginia, on November 19, in FY 2021. inception, the Act strengthened the 2015. Transcripts of the hearing are patent system by affording the USPTO While the Office welcomes all available for review at http:// the ‘‘resources it requires to clear the www.uspto.gov/sites/default/files/ comments on this IRFA, it particularly still sizeable backlog of patent documents/PPAC_Hearing_Transcript_ seeks comments describing the type and applications and move forward to 20151119.pdf. Members of the public extent of the impact of the proposed deliver to all American inventors the were invited to the hearing and given patent fees on commenters’ specific first rate service they deserve.’’ H.R. the opportunity to submit written and/ businesses. In describing the impact, the Rep. No. 112–98(I), at 163 (2011). In or oral testimony for the PPAC to Office requests biographic detail about setting and adjusting fees under the Act, consider. The PPAC considered such the impacted businesses or concerns, the Office seeks to secure a sufficient public comments from this hearing and including the size, average annual amount of aggregate revenue to recover made all comments available to the revenue, past patent activity (e.g., the aggregate cost of patent operations, public via the Fee Setting Web site, applications submitted, contested cases including revenue needed to achieve http://www.uspto.gov/about-us/ pursued, maintenance fees paid, patents strategic and operational goals. performance-and-planning/fee-setting- abandoned, etc.), and planned patent Additional information on the Office’s and-adjusting. The PPAC also provided activity of the impacted business or a written report setting forth in detail strategic goals may be found in the concern, where feasible. The Office will Strategic Plan available at http:// the comments, advice, and use this information to further assess the recommendations of the committee www.uspto.gov/sites/default/files/ impact of the proposed rule on small _ _ regarding the preliminary proposed fees. documents/USPTO 2014-2018 entities. Where possible, comments Strategic_Plan.pdf. Additional The report regarding the preliminary should also describe any recommended proposed fees was released on February information on the Office’s goals and alternative methods of setting and 29, 2016, and can be found online at operating requirements may be found in adjusting patent fees that would further http://www.uspto.gov/sites/default/files/ the ‘‘USPTO FY 2017 President’s reduce the impact on small entities. documents/PPAC_Fee%20_Setting_ Budget,’’ available at http:// Report_2016%20%28Final%29.pdf. Items 1–5 below discuss the five items www.uspto.gov/sites/default/files/ The Office considered and analyzed all specified in 5 U.S.C. 603(b)(1)–(5) to be documents/fy17pbr.pdf. The legal basis comments, advice, and addressed in an IRFA. Item 6 below for the proposed rule is Section 10 of recommendations received from the discusses alternatives to this proposal the Act. PPAC before publishing this NPRM. that the Office considered.
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3. A Description of and, Where Feasible, previously established size standard for If a patent applicant self-identifies on an Estimate of the Number of Small entities entitled to pay reduced patent a patent application as qualifying as a Entities to Which the Proposed Rule fees. See 13 CFR 121.802. small entity, or provides certification of Will Apply Unlike SBA’s generally applicable micro entity status for reduced patent small business size standards, the size SBA Size Standard fees under the Office’s alternative size standard for the USPTO is not industry- standard, the Office captures this data in The Small Business Act (SBA) size specific. The Office’s definition of a the Patent Application Location and standards applicable to most analyses small business concern for RFA Monitoring (PALM) database system, conducted to comply with the RFA are purposes is a business or other concern which tracks information on each patent set forth in 13 CFR 121.201. These that: (1) Meets the SBA’s definition of a application submitted to the Office. regulations generally define small ‘‘business concern or concern’’ set forth businesses as those with less than a in 13 CFR 121.105 and (2) meets the size Estimate of Number of Small Entities specified maximum number of standards set forth in 13 CFR 121.802 Affected employees or less than a specified level for the purpose of paying reduced The changes in the proposed rule will of annual receipts for the entity’s patent fees, namely, an entity: (a) Whose apply to any entity, including small and industrial sector or North American number of employees, including micro entities, which pays any patent Industry Classification System (NAICS) affiliates, does not exceed 500 persons fee set forth in the NPRM. The reduced code. As provided by the RFA, and after and (b) which has not assigned, granted, fee rates (50 percent for small entities consulting with the Small Business conveyed, or licensed (and is under no and 75 percent for micro entities) will Administration, the Office formally obligation to do so) any rights in the continue to apply to any small entity adopted an alternate size standard for invention to any person who made it asserting small entity status and to any the purpose of conducting an analysis or and could not be classified as an micro entity certifying micro entity making a certification under the RFA for independent inventor, or to any concern status for filing, searching, examining, patent-related regulations. See Business that would not qualify as a nonprofit issuing, appealing, and maintaining Size Standard for Purposes of United organization or a small business concern patent applications and patents. States Patent and Trademark Office under this definition. See Business Size The Office reviews historical data to Regulatory Flexibility Analysis for Standard for Purposes of United States estimate the percentages of application Patent-Related Regulations, 71 FR Patent and Trademark Office Regulatory filings asserting small entity status. 67109, 67109 (Nov. 20, 2006), 1313 Off. Flexibility Analysis for Patent-Related Table 29 presents a summary of such Gaz. Pat. Office 37, 60 (Dec. 12, 2006). Regulations, 71 FR 67109, 67109 (Nov. small entity filings by type of The Office’s alternate small business 20, 2006), 1313 Off. Gaz. Pat. Office 37, application (utility, reissue, plant, size standard consists of SBA’s 60 (Dec. 12, 2006). design) over the last five years.
TABLE 29—NUMBER OF PATENT APPLICATIONS FILED IN LAST FIVE YEARS *
FY 2015 ** FY 2014 FY 2013 FY 2012 FY 2011 Average ***
Utility All ...... 578,321 579,782 564,007 530,915 504,663 551,538 Small ...... 142,845 133,930 136,490 132,198 127,175 134,528 % Small ...... 24.7 23.1 24.2 24.9 25.2 24.4 Micro ...... 28,916 18,553 7,896 N/A N/A 18,455 % Micro ...... 5.0 3.2 1.4 N/A N/A 3.2 Reissue All ...... 887 1,208 1,074 1,212 1,158 1,108 Small ...... 200 280 229 278 240 245 % Small ...... 22.6 23.2 21.3 22.9 20.7 22.1 Micro ...... 10 24 9 N/A N/A 14 % Micro ...... 1.1 2.0 0.8 N/A N/A 1.3 Plant All ...... 1,119 1,124 1,318 1,181 1,103 1,169 Small ...... 673 581 655 576 257 548 % Small ...... 60.1 51.7 49.7 48.8 23.3 46.7 Micro ...... 4 22 3 N/A N/A 10 % Micro ...... 0.4 2.0 0.2 N/A N/A 0.9 Design All ...... 36,889 36,216 35,065 32,258 30,247 34,135 Small ...... 14,645 14,740 15,814 15,806 14,700 15,141 % Small ...... 39.7 40.7 45.1 49.0 48.6 44.6 Micro ...... 3,910 3,622 1,683 N/A N/A 3,072 % Micro ...... 10.6 10.0 4.8 N/A N/A 8.5 * The patent application filing data in this table includes RCEs. ** FY 2015 application filing data are preliminary and will be finalized in the FY 2016 Performance and Accountability Report (PAR). *** The micro entity average is from FY 2013 to FY 2015. All other averages are for all time periods shown.
Because the percentage of small entity application types in order to estimate will continue for the next five years at filings varies widely between future filing rates by small and micro these average historic rates. application types, the Office has entities. Those average rates appear in The Office forecasts the number of averaged the small entity filing rates the last column of Table 29. The Office projected patent applications (i.e., over the past five years for those estimates that small entity filing rates workload) for the next five years using
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a combination of historical data, micro entities, over the next five fiscal analyzed elasticity at the overall filing economic analysis, and subject matter years by application type. level across all patent applicants expertise. The Office estimates that The Office has undertaken an regardless of entity size and determined utility, plant, and reissue (UPR) patent elasticity analysis to examine if fee that, as none of the proposed fee application filings will grow by 1.5 adjustments may impact small entities changes are large enough to create a percent in FY 2017, 2.0 percent in FY and, in particular, whether increases in sizable change in demand for products 2018, 3.0 percent in FY 2019, and 4.0 fees would result in some such entities and services, elasticity impacts are percent in FY 2020 and FY 2021. The not submitting applications. Elasticity negligible and therefore not included in measures how sensitive patent Office forecasts design patent this iteration of fee adjustments. applications independently of UPR applicants and patentees are to fee Additional information about elasticity applications because they exhibit changes. If elasticity is low enough estimates is available at http:// different behavior. (demand is inelastic), then fee increases Using the estimated filings for the will not reduce patenting activity www.uspto.gov/about-us/performance- next five years, and the average historic enough to negatively impact overall and-planning/fee-setting-and-adjusting rates of small entity filings, Table 30 revenues. If elasticity is high enough in the document entitled ‘‘USPTO presents the Office’s estimates of the (demand is elastic), then increasing fees Setting and Adjusting Patent Fees number of patent application filings by will decrease patenting activity enough during Fiscal Year 2017—Description of all applicants, including small and to decrease revenue. The Office Elasticity Estimates.’’
TABLE 30—ESTIMATED NUMBERS OF PATENT APPLICATIONS IN FY 2017–FY 2021
FY 2017 FY 2018 FY 2019 FY 2020 FY 2021 (Current)
Utility: All...... 592,844 604,711 622,874 647,833 673,788 Reissue: All...... 1,048 1,105 1,166 1,229 1,296 Plant: All ...... 1,008 984 960 938 915 Design: All ...... 41,191 43,614 46,183 48,905 51,791
Total: All...... 636,091 650,414 671,183 698,905 727,791
4. A Description of the Projected 35, United States Code, pertaining to i. Alternative 1: Proposed Alternative— Reporting, Recordkeeping, and Other examining and granting patents. It is Set and Adjust Patent Fees Compliance Requirements of the solely responsible for issuing rules to The alternative proposed herein Proposed Rule, Including an Estimate of comply with Section 10 of the AIA. No secures the Office’s required revenue to the Classes of Small Entities Which Will other Federal, state, or local entity has cover its aggregate costs, while Be Subject to the Requirement and Type jurisdiction over the examination and progressing towards the strategic goals of Professional Skills Necessary for granting of patents. of quality enhancements and patent Preparation of the Report or Record Other countries, however, have their application backlog and pendency If implemented, this rule will not own patent laws, and an entity desiring optimization that will benefit all change the burden of existing reporting a patent in a particular country must applicants, including small and micro and recordkeeping requirements for make an application for patent in that entities, without undue burden to patent payment of fees. The current country, in accordance with the applicants and holders, barriers to entry, requirements for small and micro applicable law. Although the potential or reduced incentives to innovate. This entities will continue to apply. for overlap exists internationally, this alternative maintains small and micro Therefore, the professional skills cannot be avoided except by treaty entity discounts and adds new necessary to file and prosecute an (such as the Paris Convention for the discounts where applicable. Compared application through issue and Protection of Industrial Property, or the to the current patent fee schedule, small maintenance remain unchanged under PCT). Nevertheless, the USPTO believes entities will benefit from the this proposal. This action proposes only that there are no other duplicative or establishment of two new small entity to adjust patent fees and not to set overlapping rules. fee rates, while micro entities will procedures for asserting small entity benefit from the establishment of six status or certifying micro entity status, 6. Description of Any Significant new micro entity fee rates for existing as previously discussed. Alternatives to the Proposed Rules services. Given that most micro entities The full proposed fee schedule (see Which Accomplish the Stated would have paid large or small entity Part VI: Discussion of Specific Rules) is Objectives of Applicable Statutes and fee rates (depending on what was set forth in this NPRM. The proposed Which Minimize Any Significant available), the establishment of micro fee schedule sets or adjusts 205 patent Economic Impact of the Proposed Rules entity fee rates represents significant fees in total. This includes 14 fees that on Small Entities savings to these entities. Further, all will be discontinued and 42 new fees. entities will benefit from the Office’s The USPTO considered several proposal to discontinue 14 fees related 5. Identification, to the Extent alternative approaches to the proposal, to goods and services found to be of Practicable, of All Relevant Federal discussed below, including full cost limited value based on the ability to Rules Which May Duplicate, Overlap, or recovery for individual services, an obtain these services at zero cost or Conflict With the Proposed Rules across the board adjustment to fees, and more efficiently from non-Office The USPTO is the sole agency of the the baseline (status quo). The discussion sources. United States Government responsible here begins with a description of the As discussed throughout this for administering the provisions of title proposal selected for this rulemaking. document, the fee changes proposed in
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this alternative are moderate compared Strategic Plan’s management goal to year period. For the small number of to other alternatives. Given that the achieve organizational excellence, services that have a variable fee, the proposed fee schedule will result in which includes leveraging IT aggregate revenue table does not list a increased aggregate revenue under this investments to better support compact fee. Instead, for those services with an alternative, small and micro entities prosecution and securing sustainable estimated workload, the workload is would pay some higher fees when funding via a sufficient operating listed in dollars rather than units to compared to the current fee schedule reserve. While all of the other develop revenue estimates. Fees without (Alternative 4). However, the fees are alternatives discussed facilitate progress either a fixed fee rate or a workload not as high as those initially proposed toward some of the Office’s goals, the estimate are assumed to provide zero to PPAC. In the current fee proposal, the proposed alternative is the only one that revenue to the Office. Note, this Office decided to slow the growth of the does so in a way that does not impose alternative bases fee rates for FY 2017 operating reserve and lower key fee undue costs on patent applicants and through FY 2021 on FY 2015 historical amounts in response to comments and holders. costs. The Office recognizes that this feedback the PPAC received from The proposed fee schedule for this approach does not account for intellectual property stakeholders and rulemaking, as compared to existing fees inflationary factors that would likely other interested members of the public (labeled Alternative 1—Proposed increase costs and necessitate higher during and following the PPAC fee Alternative—Set and Adjust Patent fees in the out-years. setting hearings during Fall 2015. Fees) is available at http:// It is common practice in the Federal In summary, the fees to obtain a www.uspto.gov/about-us/performance- Government to set individual fees at a patent will increase slightly. For and-planning/fee-setting-and-adjusting, level sufficient to recover the cost of example, fees for both tiers of RCEs will in the document entitled ‘‘USPTO that single service. In fact, official increase slightly, but still less than those Setting and Adjusting Patent Fees guidance on user fees, as cited in OMB initially proposed to PPAC. during Fiscal Year 2017—IRFA Tables.’’ Circular A–25: User Charges, states that Maintenance fee rates will remain Fee changes for small and micro entities user charges (fees) should be sufficient unchanged at all three stages; however, are included in the tables. For the to recover the full cost to the Federal all reissue patents will now be subject comparison between proposed fees and Government of providing the particular to maintenance fee payments if the current fees, as noted above, the service, resource, or good, when the patent owner wishes to maintain them. ‘‘current fees’’ column displays the fees government is acting in its capacity as In an effort to continue reducing the that were in effect as of June 2016. sovereign. inventory of ex parte appeals and help However, the Office asserts that ii. Other Alternatives Considered recapture a portion of the cost of Alternative 2 does not align well with providing these services, fees will In addition to the proposed fee the strategic and policy goals of this increase for both Notice of Appeal and schedule set forth in Alternative 1, rulemaking. Both the current and Appeal Forwarding. Fees will also above, the Office considered several proposed fee schedules are structured to increase for inter partes reviews based other alternative approaches. For each collect more fees at the back-end (i.e. on updated cost data and the need to alternative considered, the Office issue fees and maintenance fees), where provide adequate resources to support calculated proposed fees and proposed the patent owner has the best the Office’s ongoing compliance with revenue derived by each alternative information about a patent’s value, AIA deadlines for these actions. scenario. The proposed fees and their rather than at the front-end (i.e. filing Similarly, fees for both post-grant corresponding revenue tables are fees, search fees, and examination fees), reviews and covered-business-method available at http://www.uspto.gov/ when applicants are most uncertain reviews will increase based on FY 2015 about-us/performance-and-planning/ about the value of their art, even though cost data and resources needed to fee-setting-and-adjusting. Please note, the front-end services are costlier to the sustain compliance with AIA deadlines. only the fees outlined in Alternative 1 Office. This alternative presents Finally, in response to feedback from are proposed in this rulemaking; other significant barriers to those seeking the PPAC and members of the public, scenarios are shown only to patent protection, because if the Office the proposed fee increase for design demonstrate the Office’s analysis of were to immediately shift from the issues is $240, from $560 to $800. Under other options. current front-end/back-end balance to a unit cost recovery structure, front-end the original proposal to the PPAC, the a. Alternative 2: Unit Cost Recovery fee would have increased by $440 to fees would increase significantly, nearly $1,000. The USPTO considered setting most tripling in some cases (e.g., search fees), Adjusting the patent fee schedule as individual large entity fees at the even with small and micro entity fee proposed in this NPRM allows the historical cost of performing the reductions. Office to implement the patent-related activities related to the particular The Office has not attempted to strategic goals and objectives service in FY 2015. This alternative estimate the quantitative elasticity documented in the Strategic Plan. continues existing and offers new small impacts for application filings (e.g., Specifically, this fee setting rule and micro entity discounts where filing, search, and examination fees) or supports the patent-related strategic eligible under AIA authority. Aside maintenance renewals (all stages) due to goals to optimize patent quality and from maintenance fees, fees for which a lack of historical data that could timeliness, which includes improving there is no FY 2015 cost data would be inform such a significant shift in the patent quality, reducing the backlog of set at current rates under this Office’s fee setting methodology. unexamined applications and alternative. The Office no longer collects However, the Office suspects that the decreasing patent application pendency, activity-based information for high costs of entry into the patent and facilitating processing at the Patent maintenance fees, and previous year system could lead to a significant Trial and Appeal Board (PTAB); and unit costs were negligible. Thus, for this decrease in the incentives to invest in increasing international efforts to alternative, maintenance fees are set at innovative activities among all entities improve intellectual property policy, levels sufficient to generate enough and especially for small and micro protection, and enforcement. This revenue to cover the Office’s anticipated entities. Under the current fee schedule, proposed rule also supports the budgetary requirements over the five- maintenance fees subsidize all
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applications, including those aggregate revenue needed to cover requirements under the rule for small applications for which no claims are budgetary requirements. entities; (3) using performance rather allowed. By insisting on unit cost As estimated by the Congressional than design standards; and (4) payment at each point in the application Budget Office, projected CPI rates by exempting small entities from coverage process, the Office is effectively fiscal year are: 2.17 percent in FY 2017, of the rule, or any part thereof. 5 U.S.C. charging high fees for every attempted 2.39 percent in FY 2018, 2.38 percent in 604(c). The USPTO discusses each of patent, meaning those applicants who FY 2019, and 2.42 percent in both FY these specified alternatives or have less information about the 2020 and FY 2021. The Office elected approaches below and describes how patentability of their claims may be less not to apply the estimated cumulative this NPRM is adopting these likely to pursue initial prosecution (e.g., inflationary adjustment (9.96 percent), approaches. filing, search, and examination) or from FY 2017 through FY 2021, because subsequent actions to continue doing so would result in significantly Differing Requirements prosecution (e.g., RCE). The ultimate more fee revenue than needed to meet As discussed above, the changes effect of these changes in behavior are the Office’s core mission and strategic proposed in this rulemaking would likely to stifle innovation. priorities. Under this alternative, nearly every existing fee would be increased continue existing fee discounts for small Similarly, the Office suspects that and micro entities that take into account renewal rates could change as well, and no fees would be discontinued or reduced. Given that all entities (large, the reduced resources available to them given significant fee reductions for as well as offer new discounts when maintenance fees at each of the three small, and micro) would pay applicable under AIA authority. stages. While some innovators and firms unilaterally higher fees, this alternative Specifically, micro entities would may choose to file fewer applications does not adequately support the Office’s continue to pay a 75 percent reduction given the higher front-end costs, others, policy factor to foster innovation for all. in patent fees under this proposal and whose claims are allowed or upheld, The fee schedule for Alternative 3: non-micro, small entities would may seek to fully maximize the benefits Across the Board Adjustment is continue to pay 50 percent of the fee. of obtaining a patent by keeping those available at http://www.uspto.gov/ patents in force for longer than they about-us/performance-and-planning/ This rulemaking sets fee levels but would have previously (i.e., under the fee-setting-and-adjusting, in the does not set or alter procedural status quo). In the aggregate, patents that document entitled ‘‘USPTO Setting and requirements for asserting small or are maintained beyond their useful life Adjusting Patent Fees during Fiscal micro entity status. To pay reduced weaken the intellectual property system Year 2017—IRFA Tables.’’ For the patent fees, small entities must merely by slowing the rate of public comparison between proposed (across assert small entity status to pay reduced accessibility and follow-on inventions, the board) fees and current fees, the patent fees. The small entity may make which is contrary to the Office’s policy ‘‘current fees’’ column displays the fees this assertion by either checking a box factor of fostering innovation. In sum, that are in effect as of June 2016. on the transmittal form, ‘‘Applicant this alternative is inadequate to c. Alternative 4: Baseline (Current Fee claims small entity status,’’ or by paying accomplish the goals and strategies as Schedule) the small entity fee exactly. The process stated in Part III of this rulemaking. The Office considered a no-action to claim micro entity status is similar in The fee schedule for Alternative 2: alternative. This alternative would that eligible entities need only submit a Unit Cost Recovery is available at http:// retain the status quo, meaning that the written certification of their status prior www.uspto.gov/about-us/performance- Office would continue the small and to or at the time a reduced fee is paid. and-planning/fee-setting-and-adjusting, micro entity discounts that Congress This proposed rule does not change any in the document entitled ‘‘USPTO provided in Section 10 of the Act and reporting requirements for any small or Setting and Adjusting Patent Fees maintain fees as of June 2016. micro entity. For both small and micro during Fiscal Year 2017—IRFA Tables.’’ This approach would not provide entities, the burden to establish their For the comparison between proposed sufficient aggregate revenue to status is nominal (making an assertion (unit cost recovery) fees and current accomplish the Office’s rulemaking or submitting a certification) and the fees, the ‘‘current fees’’ column displays goals, as set forth in Part III of this benefit of the fee reductions (50 percent the fees that are in effect as of June 2016. NPRM or the Strategic Plan. IT for small entities and 75 percent for This column is used to calculate dollar improvement, progress on backlog and micro entities) is significant. and percent fee change compared to pendency, and other strategic This proposed rule makes the best use proposed fees. improvement activities would continue, of differing requirements for small and b. Alternative 3: Across the Board but at a slower rate due to funding micro entities. It also makes the best use Adjustment limitations. Likewise, without a fee of the redesigned fee structure, as increase, the USPTO would meet discussed further below. In years past, the USPTO used its slightly less than the minimal operating authority to adjust statutory fees reserve in FY 2017 through FY 2019 and Clarification, Consolidation, or annually according to increases in the only slightly more in FY 2020, with an Simplification of Requirements consumer price index (CPI), which is a increase in FY 2021. commonly used measure of inflation. This rulemaking does not take any Building on this prior approach and iii. Alternatives Specified by the RFA actions beyond setting or adjusting incorporating the additional authority The RFA provides that an agency also patent fees; therefore, there are no under the AIA to set small and micro consider four specified ‘‘alternatives’’ or clarifications, consolidations, or entity fees, Alternative 3 would set fees approaches, namely: (1) Establishing simplifications subject to discussion by applying a one-time 5.0 percent, different compliance or reporting here. across the board inflationary increase to requirements or timetables that take into Performance Standards the baseline (status quo) beginning in account the resources available to small FY 2017. Five percent represents the entities; (2) clarifying, consolidating, or Performance standards do not apply change in revenue needed to achieve the simplifying compliance and reporting to the current rulemaking.
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Exemption for Small and Micro Entities E. Executive Order 13132 (Federalism) P.O. Box 1451, Alexandria, VA 22313– The proposed changes here maintain This rulemaking does not contain 1451, attention Dianne Buie; or by a 50 percent reduction in fees for small policies with federalism implications electronic mail message via the Federal entities and a 75 percent reduction in sufficient to warrant preparation of a eRulemaking Portal. All comments fees for micro entities. The Office Federalism Assessment under Executive submitted directly to the USPTO or considered exempting small and micro Order 13132 (Aug. 4, 1999). provided on the Federal eRulemaking Portal should include the docket entities from paying patent fees, but F. Congressional Review Act determined that the USPTO would lack number (RIN 0651–AD02). statutory authority for this approach. Under the Congressional Review Act Notwithstanding any other provision Section 10(b) of the Act provides that provisions of the Small Business of law, no person is required to respond ‘‘fees set or adjusted under subsection Regulatory Enforcement Fairness Act of to nor shall a person be subject to a (a) for filing, searching, examining, 1996 (5 U.S.C. 801–808), prior to issuing penalty for failure to comply with a issuing, appealing, and maintaining any final rule, the USPTO will submit collection of information subject to the patent applications and patents shall be a report containing the final rule and requirements of the Paperwork reduced by 50 percent [for small other required information to the U.S. Reduction Act unless that collection of entities] and shall be reduced by 75 Senate, the U.S. House of information displays a currently valid percent [for micro entities]’’ (emphasis Representatives, and the Comptroller OMB control number. General of the Government added). Neither the AIA nor any other List of Subjects statute authorizes the USPTO simply to Accountability Office. The changes in exempt small or micro entities, as a this proposed rule are expected to result 37 CFR Part 1 in an annual effect on the economy of class of applicants, from paying patent Administrative practice and $100 million or more, a major increase fees. procedure, Courts, Freedom of in costs or prices, or significant adverse information, Inventions and patents, C. Executive Order 12866 (Regulatory effects on competition, employment, Planning and Review) investment, productivity, innovation, or Reporting and record keeping requirements, Small businesses. This rulemaking has been determined the ability of United States-based to be significant for purposes of enterprises to compete with foreign- 37 CFR Part 41 based enterprises in domestic and Executive Order 12866 (Sept. 30, 1993), Administrative practice and export markets. Therefore, this proposed as amended by Executive Order 13258 procedure, Inventions and patents, rule is expected to result in a ‘‘major (Feb. 26, 2002) and Executive Order Lawyers. 13422 (Jan. 18, 2007). The Office has rule’’ as defined in 5 U.S.C. 804(2). developed a RIA as required for G. Unfunded Mandates Reform Act of 37 CFR Part 42 rulemakings deemed to be significant. 1995 Trial practice before the Patent Trial The complete RIA is available at http:// The changes proposed in this notice and Appeal Board. www.uspto.gov/about-us/performance- do not involve a Federal For the reasons set forth in the and-planning/fee-setting-and-adjusting. intergovernmental mandate that will preamble, 37 CFR parts 1, 41, and 42 are D. Executive Order 13563 (Improving result in the expenditure by state, local, proposed to be amended as follows: Regulation and Regulatory Review) and tribal governments, in the aggregate, of $100 million (as adjusted) or more in PART 1—RULES OF PRACTICE IN The Office has complied with any one year, or a Federal private sector PATENT CASES Executive Order 13563. Specifically, the mandate that will result in the ■ Office has, to the extent feasible and expenditure by the private sector of 1. The authority citation for part 1 applicable: (1) Made a reasoned $100 million (as adjusted) or more in continues to read as follows: determination that the benefits justify any one year, and will not significantly Authority: 35 U.S.C. 2(b)(2), unless the costs of the rule; (2) tailored the rule or uniquely affect small governments. otherwise noted. to impose the least burden on society Therefore, no actions are necessary ■ 2. Section 1.16 is amended by revising consistent with obtaining the regulatory under the provisions of the Unfunded objectives; (3) selected a regulatory paragraphs (a) through (f) and (h) Mandates Reform Act of 1995. See 2 through (r) to read as follows: approach that maximizes net benefits; U.S.C. 1501–1571. (4) specified performance objectives; (5) § 1.16 National application filing, search, identified and assessed available H. Paperwork Reduction Act and examination fees. alternatives; (6) involved the public in This proposed rule involves (a) Basic fee for filing each application an open exchange of information and information collection requirements that under 35 U.S.C. 111 for an original perspectives among experts in relevant are subject to review by the Office of patent, except design, plant, or disciplines, affected stakeholders in the Management and Budget (OMB) under provisional applications: private sector, and the public as a the Paperwork Reduction Act of 1995 whole, and provided on-line access to (44 U.S.C. 3501 et seq.). The collection By a micro entity (§ 1.29(a)) $75.00 the rulemaking docket; (7) attempted to of information involved in this By a small entity (§ 1.27(a)) 150.00 promote coordination, simplification, rulemaking has been reviewed and By a small entity (§ 1.27(a)) and harmonization across government previously approved by OMB under if the application is sub- agencies and identified goals designed control numbers 0651–0016, 0651–0024, mitted in compliance to promote innovation; (8) considered 0651–0031, 0651–0032, 0651–0033, with the Office electronic approaches that reduce burdens and 0651–0059, 0651–0064, and 0651–0069. filing system (§ 1.27(b)(2)) 75.00 maintain flexibility and freedom of You may send comments regarding By other than a small or choice for the public; and (9) ensured the collection of information associated micro entity ...... 300.00 the objectivity of scientific and with this rulemaking, including (b) Basic fee for filing each technological information and suggestions for reducing the burden, to application under 35 U.S.C. 111 for an processes. the Commissioner for Patents, by mail to original design patent:
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application, that contains, or is By other than a small or By a micro entity (§ 1.29(a)) $50.00 amended to contain, a multiple micro entity ...... 2,200.00 By a small entity (§ 1.27(a)) 100.00 dependent claim, per application: * * * * * By other than a small or ■ 3. Section 1.17 is amended by revising micro entity ...... 200.00 By a micro entity (§ 1.29(a)) $205.00 paragraphs (e), (m), (p) and (t) to read as (c) Basic fee for filing each application By a small entity (§ 1.27(a)) 410.00 follows: for an original plant patent: By other than a small or micro entity ...... 820.00 § 1.17 Patent application and reexamination processing fees. By a micro entity (§ 1.29(a)) $50.00 (k) Search fee for each application By a small entity (§ 1.27(a)) 100.00 filed under 35 U.S.C. 111 for an original * * * * * By other than a small or patent, except design, plant, or (e) To request continued examination micro entity ...... 200.00 provisional applications: pursuant to § 1.114: (d) Basic fee for filing each (1) For filing a first request for provisional application: By a micro entity (§ 1.29(a)) $165.00 continued examination pursuant to By a small entity (§ 1.27(a)) 330.00 § 1.114 in an application: By a micro entity (§ 1.29(a)) $70.00 By other than a small or By a small entity (§ 1.27(a)) 140.00 micro entity ...... 660.00 By a micro entity ...... $325.00 By other than a small or By a small entity (§ 1.27(a) 650.00 micro entity ...... 280.00 (l) Search fee for each application By other than a small or under 35 U.S.C. 111 for an original micro entity ...... 1,300.00 (e) Basic fee for filing each application design patent: for the reissue of a patent: (2) For filing a second or subsequent request for continued examination By a micro entity (§ 1.29(a)) $40.00 By a micro entity (§ 1.29(a)) $75.00 By a small entity (§ 1.27(a)) 80.00 pursuant to § 1.114 in an application: By a small entity (§ 1.27(a)) 150.00 By other than a small or By other than a small or micro entity ...... 160.00 By a micro entity ...... $475.00 micro entity ...... 300.00 By a small entity (§ 1.27(a) 950.00 (m) Search fee for each application for (f) Surcharge for filing the basic filing By other than a small or an original plant patent: micro entity ...... 1,900.00 fee, search fee, examination fee, or the inventor’s oath or declaration on a date * * * * * By a micro entity (§ 1.29(a)) $105.00 (m) For filing a petition for the revival later than the filing date of the By a small entity (§ 1.27(a)) 210.00 application, an application that does not By other than a small or of an abandoned application for a contain at least one claim on the filing micro entity ...... 420.00 patent, for the delayed payment of the date of the application, or an fee for issuing each patent, for the application filed by reference to a (n) Search fee for each application for delayed response by the patent owner in previously filed application under the reissue of a patent: any reexamination proceeding, for the § 1.57(a), except provisional delayed payment of the fee for By a micro entity (§ 1.29(a)) $165.00 applications: maintaining a patent in force, for the By a small entity (§ 1.27(a)) 330.00 delayed submission of a priority or By other than a small or By a micro entity (§ 1.29(a)) $40.00 micro entity ...... 660.00 benefit claim, or the extension of the By a small entity (§ 1.27(a)) 80.00 twelve-month (six-month for designs) By other than a small or (o) Examination fee for each period for filing a subsequent micro entity ...... 160.00 application filed under 35 U.S.C. 111 for application (§§ 1.55(c), 1.55(e), 1.78(b), * * * * * an original patent, except design, plant, 1.78(c), 1.78(e), 1.137, 1.378, and (h) In addition to the basic filing fee or provisional applications: 1.452)), or for filing a petition to excuse in an application, other than a applicant’s failure to act within provisional application, for filing or By a micro entity (§ 1.29(a)) $190.00 prescribed time limits in an later presentation at any other time of By a small entity (§ 1.27(a)) 380.00 international design application By other than a small or each claim in independent form in micro entity ...... 760.00 (§ 1.1051): excess of 3: (p) Examination fee for each By a micro entity (§ 1.29(a)) $500.00 By a micro entity (§ 1.29(a)) $115.00 application under 35 U.S.C. 111 for an By a small entity (§ 1.27(a)) 1,000.00 By a small entity (§ 1.27(a)) 230.00 original design patent: By other than a small or By other than a small or micro entity ...... 2,000.00 micro entity ...... 460.00 By a micro entity (§ 1.29(a)) $150.00 * * * * * (i) In addition to the basic filing fee By a small entity (§ 1.27(a)) 300.00 (p) For an information disclosure in an application, other than a By other than a small or statement under § 1.97(c) or (d): micro entity ...... 600.00 provisional application, for filing or later presentation at any other time of (q) Examination fee for each By a micro entity (§ 1.29(a)) $60.00 each claim (whether dependent or application for an original plant patent: By a small entity (§ 1.27(a)) 120.00 independent) in excess of 20 (note that By other than a small or § 1.75(c) indicates how multiple By a micro entity (§ 1.29(a)) $155.00 micro entity ...... 240.00 dependent claims are considered for fee By a small entity (§ 1.27(a)) 310.00 * * * * * calculation purposes): By other than a small or (t) For filing a petition to convert an micro entity ...... 620.00 international design application to a By a micro entity (§ 1.29(a)) $25.00 (r) Examination fee for each design application under 35 U.S.C. By a small entity (§ 1.27(a)) 50.00 application for the reissue of a patent: chapter 16 (§ 1.1052): By other than a small or micro entity ...... 100.00 By a micro entity (§ 1.29(a)) $550.00 By a micro entity (§ 1.29(a)) $45.00 (j) In addition to the basic filing fee in By a small entity (§ 1.27(a)) 1,100.00 By a small entity (§ 1.27(a)) 90.00 an application, other than a provisional
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By other than a small or (D) Individual application documents, micro entity ...... 180.00 other than application as filed, per By a micro entity (§ 1.29(a)) $1,500.00 ■ 4. Section 1.18 is amended by revising document: $25.00 By a small entity (§ 1.27(a)) 3,000.00 paragraphs (a), (b), and (c) to read as (ii) If provided on compact disc or By other than a small or micro entity ...... 6,000.00 follows: other physical electronic medium in single order or if provided electronically (B) The following parts of an ex parte § 1.18 Patent post allowance (including (e.g., by electronic transmission) other reexamination request are excluded issue) fees. than on a physical electronic medium: from paragraphs (c)(1)(A)(i) through (v) (a)(1) Issue fee for issuing each (A) Application as filed: $35.00 of this section: original patent, except a design or plant (B) File wrapper and contents: $55.00 (i) The copies of every patent or patent, or for issuing each reissue (C) [Reserved] printed publication relied upon in the patent: (iii) [Reserved] request pursuant to § 1.510(b)(3); (iv) If provided to a foreign (ii) The copy of the entire patent for By a micro entity (§ 1.29(a)) $250.00 intellectual property office pursuant to which reexamination is requested By a small entity (§ 1.27(a)) 500.00 a bilateral or multilateral agreement (see pursuant to § 1.510(b)(4); and By other than a small or § 1.14(h)): $0.00. (iii) The certifications required micro entity ...... 1,000.00 (2) [Reserved] pursuant to § 1.510(b)(5) and (6). (2) [Reserved] * * * * * (2) For filing a request for ex parte (b)(1) Issue fee for issuing an original (4) For assignment records, abstract of reexamination (§ 1.510(b)) which has design patent: title and certification, per patent: $35.00 sufficient clarity and contrast to permit * * * * * direct reproduction and electronic By a micro entity (§ 1.29(a)) $200.00 (h) Copy of Patent Grant Single-Page capture by use of digital imaging and By a small entity (§ 1.27(a)) 400.00 TIFF Images (52 week subscription): optical character recognition, and which By other than a small or $10,400.00 micro entity ...... 800.00 otherwise does not comply with the (i) Copy of Patent Grant Full-Text W/ provisions of paragraph (c)(1) of this (2) [Reserved] Embedded Images, Patent Application section:: (3) Issue fee for issuing an Publication Single-Page TIFF Images, or international design application Patent Application Publication Full- By a micro entity (§ 1.29) .... $3,000.00 designating the United States, where the Text W/Embedded Images (52 week By a small entity (§ 1.27(a)) 6,000.00 issue fee is paid through the subscription): $5,200.00 By other than a small or International Bureau (Hague Agreement (j) Copy of Patent Technology micro entity ...... 12,000.00 Rule 12(3)(c)) as an alternative to paying Monitoring Team (PTMT) Patent (3) For filing with a request for the issue fee under paragraph (b)(1) of Bibliographic Extract and Other DVD reexamination or later presentation at this section: The amount established in (Optical Disc) Products: $50.00 any other time of each claim in Swiss currency pursuant to Hague (k) Copy of U.S. Patent Custom Data independent form in excess of three and Agreement Rule 28 as of the date of Extracts: $100.00 also in excess of the number of claims mailing of the notice of allowance (l) Copy of Selected Technology in independent form in the patent under (§ 1.311). Reports, Miscellaneous Technology reexamination: (c)(1) Issue fee for issuing an original Areas: $30.00 ■ plant patent: 6. Section 1.20 is amended by revising By a micro entity (§ 1.29(a)) $115.00 paragraphs (a) through (c) and (e) By a small entity (§ 1.27(a)) 230.00 By a micro entity (§ 1.29(a)) $250.00 through (g) to read as follows: By other than a small or By a small entity (§ 1.27(a)) 500.00 micro entity ...... 460.00 By other than a small or § 1.20 Post issuance fees. micro entity ...... 1,000.00 (4) For filing with a request for (a) For providing a certifi- reexamination or later presentation at (2) [Reserved] cate of correction for ap- any other time of each claim (whether * * * * * plicant’s mistake (§ 1.323) $150.00 dependent or independent) in excess of ■ 5. Section 1.19 is amended by revising (b) Processing fee for cor- 20 and also in excess of the number of paragraphs (b)(1), (2), and (4); removing recting inventorship in a claims in the patent under and reserving paragraphs (e) and (g); patent (§ 1.324) ...... 150.00 reexamination (note that § 1.75(c) and adding paragraphs (h) through (l) to (c) In reexamination proceedings: indicates how multiple dependent read as follows: (1)(A) For filing a request for ex parte claims are considered for fee calculation reexamination (§ 1.510(a)) having: purposes): § 1.19 Document supply fees. (i) Forty (40) or fewer pages; * * * * * (ii) Lines that are double-spaced or By a micro entity (§ 1.29(a)) $25.00 (b) * * * one-and-a-half spaced; By a small entity (§ 1.27(a)) 50.00 (1) Copy of a patent application as (iii) Text written in a non-script type By other than a small or filed, or a patent-related file wrapper font such as Arial, Times New Roman, micro entity ...... 100.00 and contents, stored in paper in a paper or Courier; * * * * * file wrapper, in an image format in an (iv) A font size no smaller than 12 (e) For maintaining an original or any image file wrapper, or if color point; reissue patent, except a design or plant documents, stored in paper in an (v) Margins which conform to the patent, based on an application filed on Artifact Folder: requirements of § 1.52(a)(1)(ii); and or after December 12, 1980, in force (i) If provided on paper: (vi) Sufficient clarity and contrast to beyond four years, the fee being due by (A) Application as filed: $35.00 permit direct reproduction and three years and six months after the (B) File wrapper and contents: electronic capture by use of digital original grant: $280.00 imaging and optical character (C) [Reserved] recognition. By a micro entity (§ 1.29(a)) $400.00 By a small entity (§ 1.27(a)) 800.00
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By other than a small or (i) By the Director of Enrollment and (b) Maintenance fees are not required micro entity ...... 1,600.00 Discipline under § 11.2(c) of this for any plant patents or for any design (f) For maintaining an original or any chapter: $400.00 patents. reissue patent, except a design or plant (ii) Of the Director of Enrollment and * * * * * patent, based on an application filed on Discipline under § 11.2(d) of this ■ 9. Section 1.445 is amended by adding or after December 12, 1980, in force chapter: $400.00 paragraph (a)(5) to read as follows: beyond eight years, the fee being due by (6) Recovery/Retrieval of OED Information System Customer Interface § 1.445 International application filing, seven years and six months after the processing and search fees. original grant: account by USPTO: (i) For USPTO-assisted recovery of ID (a) * * * or reset of password: $70.00 (5) Late furnishing fee for providing a By a micro entity (§ 1.29(a)) $900.00 sequence listing in response to an By a small entity (§ 1.27(a)) 1,800.00 (ii) For USPTO-assisted change of By other than a small or address: $70.00 invitation under PCT Rule 13ter: micro entity ...... 3,600.00 (7) and (8) Reserved (9)(i) Delinquency fee: $50.00 By a micro entity (§ 1.29(a)) $75.00 (g) For maintaining an original or any (ii) Administrative reinstatement fee: By a small entity (§ 1.27(a)) 150.00 reissue patent, except a design or plant $200.00 By other than a small or patent, based on an application filed on (10) On application by a person for micro entity ...... 300.00 or after December 12, 1980, in force recognition or registration after * * * * * beyond twelve years, the fee being due disbarment or suspension on ethical ■ 10. Section 1.482 is amended by by eleven years and six months after the grounds, or resignation pending revising the section heading and adding original grant: disciplinary proceedings in any other paragraph (c) to read as follows: jurisdiction; on application by a person By a micro entity (§ 1.29(a)) $1,850.00 § 1.482 International preliminary for recognition or registration who is examination and processing fees. By a small entity (§ 1.27(a)) 3,700.00 asserting rehabilitation from prior By other than a small or conduct that resulted in an adverse * * * * * micro entity ...... 7,400.00 decision in the Office regarding the (c) Late furnishing fee for providing a sequence listing in response to an * * * * * person’s moral character; and on invitation under PCT Rule 13ter: ■ 7. Amend § 1.21 by: application by a person for recognition ■ a. Revising paragraph (a); or registration after being convicted of a ■ b. Removing and reserving paragraph By a micro entity (§ 1.29(a)) $75.00 felony or crime involving moral By a small entity (§ 1.27(a)) 150.00 (g); turpitude or breach of fiduciary duty; on By other than a small or ■ c. Revising paragraph (h) introductory petition for reinstatement by a person micro entity ...... 300.00 text and paragraphs (h)(2) and (i); excluded or suspended on ethical ■ 11. Section 1.492 is amended by ■ d. Removing and reserving paragraph grounds, or excluded on consent from revising paragraphs (a), (b)(2) through (j); and practice before the Office: $1,600.00 (4), (c)(2), and (d) through (f) to read as ■ e. Adding paragraphs (o) through (q). * * * * * follows: The revisions and additions read as (h) For recording each assignment, follows: agreement, or other paper relating to the § 1.492 National stage fees. § 1.21 Miscellaneous fees and charges. property in a patent or application, per * * * * * property: (a) The basic national fee for an * * * * * international application entering the (a) Registration of attorneys and * * * * * (2) If not submitted electronically: national stage under 35 U.S.C. 371: agents: $50.00 (l) For admission to examination for (i) Publication in Official Gazette: For By a micro entity (§ 1.29(a)) $75.00 registration to practice: publication in the Official Gazette of a By a small entity (§ 1.27(a)) 150.00 (i) Application Fee (non-refundable): notice of the availability of an By other than a small or micro entity ...... 300.00 $100.00 application or a patent for licensing or (ii) Registration examination fee. sale: Each application or patent: $25.00 (b) * * * (A) For test administration by (2) If the search fee as set forth in commercial entity: $200.00 * * * * * (o) The submission of very lengthy § 1.445(a)(2) has been paid on the (B) For test administration by the international application to the United USPTO: $450.00 sequence listings (mega-sequence listings) are subject to the following States Patent and Trademark Office as (iii) For USPTO-administered review an International Searching Authority: of registration examination: $450.00 fees: (1) Submission of sequence listings (2) On registration to practice or grant ranging in size from 300MB to 800MB: By a micro entity (§ 1.29(a)) $35.00 of limited recognition: By a small entity (§ 1.27(a)) 70.00 $1,000.00 (i) On registration to practice under By other than a small or (2) Submission of sequence listings § 11.6 of this chapter: $200.00 micro entity ...... 140.00 exceeding 800MB in size: $10,000.00 (ii) On grant of limited recognition (p) Additional Fee for Overnight (3) If an international search report on under § 11.9(b) of this chapter: $200.00 Delivery: $40.00 the international application has been (iii) On change of registration from (q) Additional Fee for Expedited prepared by an International Searching agent to attorney: $100.00 Service: $160.00 Authority other than the United States (3) [Reserved] ■ 8. Section 1.362 is amended by International Searching Authority and is (4) For certificate of good standing as revising paragraph (b) to read as follows: provided, or has been previously an attorney or agent: communicated by the International (i) Standard: $40.00 § 1.362 Time for payment of maintenance Bureau, to the Office: (ii) Suitable for framing: $50.00 fees. (5) For review of decision: * * * * * By a micro entity (§ 1.29(a)) $130.00
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By a small entity (§ 1.27(a)) 260.00 PART 42—TRIAL PRACTICE BEFORE By other than a small or By a micro entity (§ 1.29(a)) $30.00 THE PATENT TRIAL AND APPEAL micro entity ...... 520.00 By a small entity (§ 1.27(a)) 60.00 BOARD (4) In all situations not provided for By other than a small or in paragraph (b)(1), (2), or (3) of this micro entity ...... 120.00 ■ 15. The authority citation for part 42 continues to read as follows: section: * * * * * Authority: 35 U.S.C. 2(b)(2), 6, 21, 23, 41, By a micro entity (§ 1.29(a)) $165.00 (f) The designation fee for the United 135, 311, 312, 316, 321–326; Pub. L. 112–29, By a small entity (§ 1.27(a)) 330.00 States shall consist of: 125 Stat. 284; and Pub. L. 112–274, 126 Stat. By other than a small or (1) A first part established in Swiss 2456. micro entity ...... 660.00 currency pursuant to Hague Rule 28 ■ 16. Section 42.15 is amended by (c) * * * based on the combined amounts of the revising paragraphs (a) and (b) to read (2) In all situations not provided for basic filing fee (§ 1.16(b)), search fee as follows: in paragraph (c)(1) of this section: (§ 1.16(l)), and examination fee (§ 1.16(p)) for a design application. The § 42.15 Fees By a micro entity (§ 1.29(a)) $190.00 first part is payable at the time of filing (a) On filing a petition for inter partes By a small entity (§ 1.27(a)) 380.00 the international design application; review of a patent, payment of the By other than a small or and micro entity ...... 760.00 following fees are due: (2) A second part (issue fee) as (1) Inter Partes Review request fee: (d) In addition to the basic national provided in § 1.18(b). The second part is $14,000.00 fee, for filing or on later presentation at payable within the period specified in a (2) Inter Partes Review Post- any other time of each claim in notice of allowance (§ 1.311). Institution fee: $16,500.00 independent form in excess of 3: (3) In addition to the Inter Partes PART 41—PRACTICE BEFORE THE Review request fee, for requesting By a micro entity (§ 1.29(a)) $115.00 PATENT TRIAL AND APPEAL BOARD review of each claim in excess of 20: By a small entity (§ 1.27(a)) 230.00 $300.00 By other than a small or ■ micro entity ...... 460.00 13. The authority citation for part 41 (4) In addition to the Inter Partes Post- continues to read as follows: Institution request fee, for requesting (e) In addition to the basic national review of each claim in excess of 15: fee, for filing or on later presentation at Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, $600.00 any other time of each claim (whether 23, 32, 41, 134, 135, and Public Law 112–29. (b) On filing a petition for post-grant dependent or independent) in excess of ■ 14. Section 41.20 is amended by review or covered business method 20 (note that § 1.75(c) indicates how revising paragraphs (b)(1) and (4) to read patent review of a patent, payment of multiple dependent claims are as follows: considered for fee calculation purposes): the following fees are due: § 41.20 Fees. (1) Post-Grant or Covered Business Method Patent Review request fee: By a micro entity (§ 1.29(a)) $25.00 * * * * * By a small entity (§ 1.27(a)) 50.00 $16,000.00 By other than a small or (b) * * * (2) Post-Grant or Covered Business micro entity ...... 100.00 (1) For filing a notice of appeal from Method Patent Review Post-Institution (f) In addition to the basic national the examiner to the Patent Trial and fee: $22,000.00 fee, if the application contains, or is Appeal Board: (3) In addition to the Post-Grant or amended to contain, a multiple Covered Business Method Patent dependent claim, per application: By a micro entity (§ 1.29 of Review request fee, for requesting this chapter) ...... $250.00 review of each claim in excess of 20: By a micro entity (§ 1.29(a)) $205.00 By a small entity (§ 1.27(a) $375.00 By a small entity (§ 1.27(a)) 410.00 of this chapter) ...... 500.00 (4) In addition to the Post-Grant or By other than a small or By other than a small or Covered Business Method Patent micro entity ...... 820.00 micro entity ...... 1,000.00 Review Post-Institution fee, for ■ 12. Section 1.1031 is amended by * * * * * requesting review of each claim in revising paragraph (a) and adding (4) In addition to the fee for filing a excess of 15: $825.00 paragraph (f) to read as follows: notice of appeal, for forwarding an * * * * * § 1.1031 International design application appeal in an application or ex parte Dated: September 20, 2016. fees. reexamination proceeding to the Board: Michelle K. Lee, (a) International design applications Under Secretary of Commerce for Intellectual filed through the Office as an office of By a micro entity (§ 1.29(a) Property and Director of the United States of this chapter) ...... $625.00 Patent and Trademark Office. indirect filing are subject to payment of By a small entity (§ 1.27(a) [FR Doc. 2016–23093 Filed 9–30–16; 8:45 am] a transmittal fee (35 U.S.C. 382(b) and of this chapter) ...... 1,250.00 article 4(2)) in the amount of By other than a small or BILLING CODE 3510–16–P micro entity ...... 2,500.00
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Part IV
Department of Commerce
13 CFR Parts 300, 301, 302, et al. Revolving Loan Fund Program Changes and General Updates to PWEDA Regulations; Proposed Rule
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DEPARTMENT OF COMMERCE streamlining the provisions that outline (42 U.S.C. 3149) the RLF program has EDA’s application process, and served as an important pillar of EDA’s Economic Development Administration clarifying EDA’s property management investment programs since the regulations. program’s establishment in 1975. The 13 CFR Parts 300, 301, 302, 303, 304, DATES: Written comments on this NPRM goal of the RLF program is to help 305, 307, 309, and 314 must be submitted by December 2, 2016. communities and regions transform their economies and propel them [Docket No.: 160519444–6444–01] ADDRESSES: Comments on the NPRM towards economic prosperity through may be submitted through any of the RIN 0610–AA69 innovation, entrepreneurship, and following methods: public-private partnerships. Through • Federal eRulemaking Portal: http:// Revolving Loan Fund Program the RLF program, EDA provides grants www.regulations.gov. Follow the Changes and General Updates to to eligible Recipients, which include instructions for submitting comments. PWEDA Regulations State and local governments, political All comments received are a part of the subdivisions, and nonprofit AGENCY: Economic Development public record and will generally be organizations to operate a lending Administration, U.S. Department of posted for public viewing on Commerce. program that offers low-interest loans www.regulations.gov without change. and flexible repayment terms to ACTION: Notice of proposed rulemaking, All personal identifying information businesses that cannot obtain traditional request for public comment. (e.g., name, address, etc.), confidential bank financing and to governmental business information, or otherwise entities for public infrastructure. These SUMMARY: Through this notice of sensitive information submitted proposed rulemaking (‘‘NPRM’’), the loans enable small businesses to expand voluntarily by the sender will be and lead to new employment Economic Development Administration publicly accessible. EDA will accept (‘‘EDA’’), U.S. Department of Commerce opportunities that pay competitive anonymous comments (enter ‘‘N/A’’ in wages and benefits. They also help (‘‘DOC’’), proposes and requests the required fields if you wish to remain comments on updates to the agency’s retain jobs that might otherwise be lost, anonymous). create wealth, and support minority and regulations implementing the Public • Email: [email protected]. women-owned businesses. Works and Economic Development Act Include ‘‘Comments on EDA’s Since the program’s inception, EDA of 1965, as amended (‘‘PWEDA’’). In regulations’’ and Docket No. has funded approximately 800 RLFs particular, through this NPRM EDA is 160519444–6444–01 in the subject line nationwide, investing $550 million in proposing important changes to the of the message. • RLFs that have a combined capital base regulations governing the Revolving Fax: (202) 482–5671. Please of about $813.5 million as of September Loan Fund (‘‘RLF’’) program that are indicate ‘‘Attention: Office of Chief 30, 2015. These funds currently have a intended to reflect current best practices Counsel,’’ ‘‘Comments on EDA’s total of $250 million available for and strengthen EDA’s efforts to evaluate, regulations,’’ and Docket No. lending. EDA-funded RLFs have made monitor, and improve RLF performance 160519444–6444–01 on the cover page. • more than 27,000 loans to American by establishing the Risk Analysis Mail: Office of the Chief Counsel, small businesses and have leveraged System, a risk-based management Economic Development Administration, more than $12 billion non-RLF dollars. framework, to evaluate and manage the U.S. Department of Commerce, 1401 RLF Recipients report that the program RLF program. The proposed Risk Constitution Avenue NW., Suite 72023, has contributed to creating 340,000 jobs Analysis System is modeled on the Washington, DC 20230. Please indicate and retaining 307,000 jobs. Uniform Financial Institutions Rating ‘‘Comments on EDA’s regulations’’ and Each RLF Recipient contributes System, commonly known as the capital Docket No. 160519444–6444–01 on the matching funds in accordance with adequacy, assets, management envelope. EDA’s statutory requirements to capability, earnings, liquidity, and FOR FURTHER INFORMATION CONTACT: capitalize an RLF. As loans made from sensitivity (‘‘CAMELS’’) rating system, Rachel Wallace, Attorney-Advisor, this original pool of EDA and Recipient which has been used since 1979 to Office of the Chief Counsel, Economic funds are repaid, the fund is assess financial institutions on a Development Administration, U.S. replenished and new loans are extended uniform basis and to identify those in Department of Commerce, 1401 to qualified businesses. They can also be need of additional attention. EDA also Constitution Avenue NW., Suite 72023, provided to governmental entities for proposes to reorganize the RLF Washington, DC 20230; telephone: (202) eligible public infrastructure. Each RLF regulations to improve their readability 482–4687. Recipient must develop and maintain an and clarify the requirements that apply SUPPLEMENTARY INFORMATION: RLF Plan to demonstrate how the fund to the distinct phases of an RLF award. fits specific economic development In addition, EDA proposes specific Background on EDA and the RLF goals and how it will adequately changes to RLF requirements to make Program administer the RLF throughout its RLF awards more efficient for EDA leads the Federal economic lifecycle. Because RLF funds currently Recipients to administer and EDA to development agenda by promoting retain their Federal character in monitor. innovation and competitiveness, perpetuity, the RLF Recipient’s In addition, through this NPRM EDA preparing American regions for growth obligation to manage the RLF continues proposes important, but less and success in the worldwide economy. as long as the Federal Interest in the comprehensive updates to other parts of Through strategic investments that RLF exists. its regulations, including revising foster job creation and attract private Since February 1, 2011, EDA has definitions, replacing references to investment, EDA supports development taken a critical and comprehensive look- superseded regulations to reflect the in economically distressed areas of the back at its regulations to reduce burdens promulgation of the Uniform United States. by removing outmoded provisions and Administrative Requirements, Cost Authorized under section 209 of the streamlining and clarifying Principles, and Audit Requirements (2 Public Works and Economic requirements. On December 19, 2014, CFR part 200) (‘‘Uniform Guidance’’), Development Act of 1965 (‘‘PWEDA’’) EDA published a Final Rule (79 FR
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76108) (‘‘2014 Final Rule’’) revising the the reporting period to be based on each • We add language to clarify how RLF agency’s regulations and reflecting the Recipient’s fiscal year end. Income is treated during the agency’s practices and policies in Six comments received from the prior Disbursement Phase. The current administering its economic set of regulatory changes suggested the regulations specify that RLF Income development assistance programs. establishment of an RLF task force to held to reimburse administrative costs EDA’s regulations at 13 CFR part 307 address program issues and improve does not need to be disbursed to draw set out the requirements for awards communications between EDA and additional Grant funds, but do not under EDA’s Economic Adjustment program stakeholders. EDA has address RLF Income not used for Assistance program, through which established such a task force, which is administrative costs. Through this EDA can support a wide-range of represented by personnel from EDA regulatory revision, EDA is clarifying technical assistance, planning, and Headquarters and all six of EDA’s that RLF Income earned during the infrastructure assistance in Regions Regional Offices and has examined Disbursement Phase must be placed in experiencing adverse economic changes ways to address challenges that have the RLF Capital Base and may be used that may occur suddenly or over time. been identified by the OIG, program to reimburse eligible and reasonable The types of assistance that EDA can stakeholders, and EDA management. administrative costs and increase the provide through this program include Overview of Proposed Changes to the RLF Capital Base. However, RLF Income strategy development, infrastructure RLF Program earned during the Disbursement Phase construction, and RLF capitalization. need not be disbursed to support new Subpart A of part 307 details the general Given this greater focus on improving RLF loans, unless otherwise specified in requirements for Economic Adjustment the RLF program and its operations the terms and conditions of the RLF Assistance awards; and subpart B sets through a risk-based management Grant. out requirements specific to the RLF framework, EDA now looks to • Consistent with EDA’s new program. strengthen and clarify its RLF approach to managing RLF Grants, this Through the 2014 Final Rule, EDA regulations. As further detailed in this NPRM proposes expanding the requisite reorganized part 307 to help clarify NPRM, EDA seeks to improve the period during which RLF Income must award requirements and incorporate all agency’s ability to monitor RLF be earned and administrative costs must RLF program requirements under performance and provide targeted be incurred from the same six-month subpart B to part 307. When developing technical assistance through a risk- Reporting Period to the same fiscal year. those regulations, EDA received a based management framework, better We also specify that RLF Recipients number of comments on the RLF organize and clarify the RLF regulations, may not use funds in excess of RLF program, including several and make additional changes designed Income for administrative costs during recommending that EDA set a time limit to clarify and streamline RLF the fiscal year unless directed to do so for releasing the Federal Interest in RLF requirements. Given the important role by EDA and add language advising RLF awards. EDA explained that while some of this program as a driver of small Recipients to keep administrative RLF awards have been operating for a business growth, job creation, and expenses to a minimum to maintain the considerable length of time—some for as economic development, EDA seeks the RLF Capital Base and to specify that the many as three decades—EDA currently public’s input and insight in the percentage of RLF Income used for is not authorized to release its interest regulatory revision process. administrative expenses will be one of in RLF awards; however, EDA continues With these goals in mind, the Part-by- the metrics used in EDA’s Risk Analysis to actively work to obtain the necessary Part Analysis will describe the changes System. In keeping with this program authorities for what is known as ‘‘de- to the RLF program in more detail, but management change, EDA is removing federalization’’ or ‘‘local control.’’ the following provides a high-level the requirement that RLF Recipients Other comments remarked that the overview of these changes. submit an RLF Income and Expense RLF program reporting requirements • EDA proposes important Statement (i.e., Form ED–209I). The were too burdensome. EDA noted that definitional revisions, including adding Risk Analysis System will incentivize the semi-annual reporting requirement a definition for Disbursement phase to RLF Recipients to manage RLF for the RLF program is in place to go along with the existing definition of administrative expenses and maintain address an audit report by the DOC’s Revolving phase so that it is clear which their RLF Capital Base. Office of Inspector General (‘‘OIG’’), requirements apply during the two • This NPRM also proposes language which recommended that EDA phases of an RLF’s lifecycle. We also to describe the process of adding undertake more rigorous oversight of the define the important term RLF Capital Voluntarily Contributed Capital to the RLF program to ensure the financial Base, which is the total value of RLF RLF Capital Base and to clarify that integrity and sustainability of the Grant assets administered by the RLF such capital becomes an irrevocable part program. Because the reporting Recipient and is equal to the amount of of the RLF Capital Base and may not be requirements are designed to address Grant funds used to capitalize (and subsequently withdrawn or separated past program issues and ensure the recapitalize, if applicable) the RLF, plus from the RLF. viability and transparency of the Local Share, plus RLF Income, plus • In response to a request from some program, EDA declined to make Voluntarily Contributed Capital, less existing Recipients, this NPRM proposes wholesale changes at that time but any loan losses and disallowances. broadening the types of investments that expressed its intent to continue to • EDA proposes simplifying the may serve as appropriate leveraging to improve the RLF Recipient reporting language explaining RLF disbursements allow Recipients to use funds from State system to make it more user-friendly. In to clarify that EDA will disburse funds and local lending programs to meet the the current set of regulatory changes, in the amount needed to meet the RLF leveraging requirement. Similar to EDA proposes to move from the semi- Federal share of a new RLF loan. For allowing Federal loans to count as annual reporting requirement to a example, assume an RLF Grant totals leveraging, if the managers of State and frequency (either annual or semi- $500 and has a Local Share requirement local lending programs are willing to annual) that will be determined by each of 50 percent. If the RLF Recipient provide financing to a borrower, EDA Recipient’s score in the Risk Analysis closes on a loan obligation worth $30, believes such financing should count System. In addition, EDA is changing EDA will disburse $15. towards the leveraging requirement.
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• EDA proposes adopting a Risk proposed revisions to §§ 307.16(c) and and Local Governments, respectively, Analysis System to evaluate and manage 307.17(b). with a reference to the uniform the performance of RLF Recipients, One feature of the move to the administrative requirements cost which would provide Recipients with a Allowable Cash Percentage concept is principles, and audit requirements set set of portfolio management and that EDA will no longer require out in the Uniform Guidance. In operations standards to evaluate their automatic sequestration as a remedy for addition, EDA proposes revising the program and improve performance. failure to satisfy the capital utilization definition of Project by adding a Revised § 307.16 includes language on standard. Given the replacement of the reference to ‘‘or Stevenson-Wydler’’ the proposed system, which will capital utilization standard with the between the reference to ‘‘PWEDA’’ and provide EDA with an internal tool for more flexible Allowable Cash the word ‘‘and’’ to clarify that EDA may assessing the risk of each Recipient’s Percentage and the adoption of a Risk provide Investment Assistance to loan operations and identifying RLF Analysis System, sequestration will be support a Project under Stevenson- Recipients that require additional considered as one of a range of possible Wydler. Please see the explanation of tools used to ensure compliance with monitoring, technical assistance, or the proposed definition of Stevenson- the terms of the RLF Grant and will also other action. EDA’s proposed risk-based Wydler below for more information on be considered in EDA’s Risk Analysis this authority. RLF management framework is modeled System. EDA proposes to revise the definition on the Uniform Financial Institutions • EDA proposes clarifying the use of Recipient by defining separately the Rating System (the CAMELS rating restrictions related to RLF Cash concepts of Co-recipients and system), used by regulators to assess Available for Lending. Specifically, to Subrecipients in EDA’s programs. The financial institutions and to identify address recent concerns EDA has term co-recipient has been used in those in need of extra assistance or encountered in administering the RLF EDA’s regulations for some time, and attention. Additional details on the program, EDA is adding language to adding a reference to the term in the proposed system are provided below make clear that RLF Cash Available for Definitions section is designed to clarify under the Part-by-Part Analysis. The Lending cannot be used as collateral to that when EDA awards Investment technical aspects of this system will be obtain credit or any other type of Assistance to more than one recipient, described in a separate notice that will financing without EDA’s prior written they are known as co-recipients and are be published in the Federal Register at approval, cannot be used to support generally jointly and severally a later time. This notice will provide operations or administration of the RLF responsible for fulfilling the terms of the additional agency guidance regarding Recipient, and cannot be used for any Investment Assistance. We also propose the system and the underlying metrics. purpose that would violate EDA’s to introduce the term Subrecipient as • EDA proposes adopting an property requirements set out in 13 CFR the eligible recipient that receives a part 314. subgrant under 13 CFR part 309. The Allowable Cash Percentage concept to • replace the capital utilization standard. EDA is seeking to restructure the definition of Subrecipient in this NPRM Recognizing that different regions face compliance regulations by creating a is consistent with the definition of very different economic and access to regulation that sets out actions (or Subrecipient set out in the Uniform failures to act) for which EDA may take capital conditions and that a one-size- Guidance at 2 CFR 200.93, which is ‘‘a appropriate compliance actions fits-all capital utilization standard can non-Federal entity that receives a (§ 307.20) and another section listing be difficult for RLF Recipients to meet subaward from a pass-through entity to remedies for noncompliance (§ 307.21). and for EDA to implement, EDA carry out part of a Federal program; but Restructuring the compliance proposes eliminating the capital does not include an individual that is a regulations will help RLF stakeholders utilization standard, which requires beneficiary of such program. A to better understand program subrecipient may also be a recipient of Recipients to provide that at all times at prohibitions and the potential other Federal awards directly from a least 75 percent of their RLF Capital is consequences. Federal awarding agency.’’ Note that the loaned or committed. In place of the Uniform Guidance defines ‘‘Non- capital utilization standard, which is Part-by-Part Analysis of Proposed Federal entity’’ as ‘‘a state, local based on the amount of capital that is Changes government, Indian tribe, institution of loaned out, EDA proposes to assess RLF General higher education (IHE), or nonprofit Recipients on the amount of cash Part 300—General Information organization that carries out a Federal Recipients have on hand available for award as a recipient or subrecipient’’ lending—defined as the Allowable Cash Part 300 of the regulations states and ‘‘Pass-through entity’’ as ‘‘a non- Percentage. Each year, each EDA EDA’s mission and highlights the Federal entity that provides a subaward Regional Office will calculate the policies and practices that EDA employs to a subrecipient to carry out part of a average percentage of RLF Cash in order to attract private capital Federal program.’’ See 2 CFR 200.69 and Available for Lending held by each RLF investments and new and better jobs to 200.74, respectively. Recipient in the region’s RLF portfolio those Regions experiencing substantial In addition, EDA proposes adding a and will notify Recipients by January 1 and persistent economic distress. This definition of Stevenson-Wydler, which each year of the Allowable Cash NPRM proposes several clarifying is the Stevenson-Wydler Technology Percentage to be used during the revisions to the ‘‘Definitions’’ section of Innovation Act of 1980, as amended (15 ensuing year. RLF Recipients will be EDA’s regulations at § 300.3. First, in U.S.C. 3701 et seq.). The America required to manage their repayment and the definition of In-kind contribution(s), Creating Opportunities to Meaningfully lending schedules to provide that at all EDA replaces references to 15 CFR parts Promote Excellence in Technology, times, their amount of RLF Cash 14 and 24, which set out the Uniform Education, and Science (‘‘COMPETES’’) Available for Lending does not exceed Administrative Requirements applicable Act as reauthorized in 2010 (Pub. L. the Allowable Cash Percentage. See the to grants and agreements with 111–358 (January 4, 2011)) amended part-by-part analysis below for an Institutions of Higher Education, Stevenson-Wydler to add several example of how the Allowable Cash Hospitals, Other Non-Profit, and innovation and entrepreneurship- Percentage concept will work and Commercial Organizations and State focused provisions creating EDA offices
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and/or programs, including the Office of to better explain what applicants are Likewise, EDA revises § 301.8 Innovation and Entrepreneurship (15 required to provide to fulfill EDA’s (‘‘Application evaluation criteria’’) to U.S.C. 3720), the loan guarantees for Matching Share requirements. In remove specific evaluation criteria as innovative technologies in addition, EDA proposes adding a currently set out in subsections (a) manufacturing (‘‘ITM’’) program (15 sentence to § 301.5 to clarify that EDA through (f) from the regulation and to U.S.C. 3721), and the Regional retains the discretion to determine specify that program-specific evaluation Innovations Strategies (‘‘RIS’’) program whether Matching Share documentation criteria will be set out in applicable (15 U.S.C. 3722). EDA is proposing to adequately addresses the requirements FFOs. EDA has found that including add a definition of Stevenson-Wydler in of the regulation. specific evaluation criteria in the order to begin incorporating these This NPRM proposes to simplify regulation can be confusing. Providing programs under its regulations and § 301.7(a) (‘‘Investment assistance that EDA will set appropriate evaluation proposes adding references to specific application’’) to state that for all of criteria in FFOs allows EDA additional regulations throughout this part to EDA’s Investment Assistance programs, flexibility to respond to changing reflect that they apply to Stevenson- application submission requirements economic conditions. Wydler. Via a future notice, EDA and evaluation procedures criteria will In § 301.11 (‘‘Infrastructure’’), EDA anticipates publishing proposed be set out in published Federal Funding proposes adding the parenthetical ‘‘(e.g., regulations at 13 CFR part 312 to reflect Opportunity (‘‘FFO’’) announcements. roads, sewers, and water lines)’’ in the requirements specific to Projects funded In 2011, EDA moved to an application second sentence of § 301.11(a) to under Stevenson-Wydler, including and selection process that required a provide several core examples of ‘‘basic eligibility and matching share single application that was economic development assets’’ requirements. competitively evaluated in quarterly referenced in the sentence. funding cycles under its Public Works Part 302—General Terms and Part 301—Eligibility, Investment Rate, and Economic Adjustment Assistance Conditions for Investment Assistance and Application Requirements programs. After evaluating the impact of Part 301 sets forth eligibility criteria, this process on applicants and staff, Part 302 sets forth the general terms the maximum allowable Investment EDA is again adjusting the application and conditions for EDA Investment Rates, and application requirements and selection process under the Public Assistance, including environmental common to all PWEDA-enumerated Works and Economic Adjustment reviews of Projects; relocation assistance programs (and thus excludes Assistance programs to return to a two- and land acquisition requirements; Community Trade Adjustment phase process that requires the inter-governmental review of Projects; Assistance at part 313 and Trade submission of a proposal followed by a and Recipients’ reporting, Adjustment Assistance for Firms complete application. As more fully recordkeeping, post-approval, and civil (‘‘TAAF’’) at part 315). In general, explained in the FY 2016 Economic rights requirements. subpart A of part 301 presents an Development Assistance Programs As noted above under the description overview of EDA’s eligibility (‘‘EDAP’’) FFO, which is available on of changes to part 300, EDA administers requirements; subpart B addresses www.grants.gov, there are no several programs authorized under applicant eligibility; subpart C submission deadlines and proposals and Stevenson-Wydler. EDA proposes addresses Regional economic distress applications are accepted on an ongoing revising § 302.5 (‘‘Relocation assistance level requirements; subpart D sets forth basis. All submissions under the Public and land acquisition policies’’) to add a maximum allowable Investment Rates Works and Economic Adjustment reference to Stevenson-Wydler by and Matching Share requirements; and Assistance programs must proceed adding the phrase ‘‘or any other types of subpart E addresses application through a two-phase review process assistance’’ between ‘‘Investment requirements, as well as the evaluation where the first phase allows applicants Assistance’’ and ‘‘under PWEDA’’ and a criteria used by EDA in selecting to submit a shorter proposal through reference to ‘‘, and Stevenson-Wydler’’ Projects. which EDA can provide an initial between ‘‘Trade Act’’ and ‘‘(States and EDA proposes adding the phrase ‘‘at analysis on whether the applicant’s political subdivisions of States. . . .)’’. its sole discretion’’ to the second project is responsive to the EDAP FFO EDA also corrects a typo by replacing sentence of § 301.2(b) (‘‘Applicant and the second phase allows EDA to the phrase ‘‘nonprofits organizations’’ eligibility’’). § 301.2(b) requires non- evaluate the competitiveness of a with ‘‘nonprofit organizations’’. EDA profit organizations that are applicants complete application against specified revises § 302.6 (‘‘Additional for investment assistance to include in evaluation criteria. Proposals will be requirements; Federal policies and their applications a resolution or letter reviewed by EDA within 30 days of procedures’’), to replace references to 15 from an authorized representative of a receipt; and following the proposal CFR parts 14 and 24 with a reference to political subdivision of a State, review, complete applications will be ‘‘2 CFR part 200, Uniform acknowledging that the applicants are reviewed within 60 days of receipt. Administrative Requirements, Cost acting in cooperation with the officials The application procedures for EDA’s Principles, and Audit Requirements for of that subdivision. The second other programs, including the Planning, Federal Awards’’. In addition, EDA sentence of this paragraph allows EDA Local Technical Assistance, University proposes adjustments to § 302.20 (‘‘Civil to waive this requirement for Projects of Center, and Research and Evaluation rights’’) to clarify that a significant Regional or national scope. programs, will be specified in nondiscrimination requirements apply By adding the phrase, ‘‘at its sole applicable FFOs. To avoid engraining a to any type of assistance provided under discretion,’’ to this second sentence, particular process in a regulation, EDA Stevenson-Wydler. Specifically, in EDA is seeking to clarify that such a simply revises § 301.7(a) to provide that § 302.20(a), EDA adds a reference to ‘‘or waiver is solely at EDA’s discretion. In for EDA Investment Assistance Stevenson-Wydler’’ between the the second sentence of § 301.5 programs, application submission reference to ‘‘PWEDA’’ and the phrase (‘‘Matching share requirements’’), EDA requirements and evaluation procedures ‘‘or by an entity’’, as well as the phrase proposes replacing the word ‘‘show’’ and criteria will be specified in FFOs ‘‘or any other type of assistance under with the phrase ‘‘provide published on the EDA Web site and at Stevenson-Wydler’’ between the documentation to EDA demonstrating’’ www.grants.gov. reference to ‘‘Trade Act’’ and the phrase
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‘‘in accordance with the following unique needs of their respective CEDS. The 2011 NPRM and the 2014 authorities’’. In § 302.20(d) regarding Regions. The CEDS are central to EDA’s Final Rule streamlined the content written assurances of compliance with economic development initiatives, and a requirements of CEDS from a laundry- nondiscrimination requirements, EDA proposed Project must be consistent list of ten detailed items to the following adds a reference to ‘‘and Stevenson- with a relevant CEDS before EDA makes four essential planning elements in Wydler’’ between ‘‘PWEDA’’ and ‘‘all a competitive award under the Public § 303.7(b)(1)(i) through (iv): (a) A Other Parties’’, as well as a reference to Works or Economic Adjustment summary of economic development ‘‘or any other type of assistance under Assistance programs under parts 305 or conditions of the Region; (b) an in-depth Stevenson-Wydler’’ between ‘‘Trade 307. Finally, part 303 sets forth the analysis of the economic and Act’’ and the phrase that begins with requirements for State and Short-Term community strengths, weaknesses, ‘‘must submit to EDA’’. Planning Investments, which can help opportunities and threats; (c) strategies In addition, in § 302.20(a)(2), EDA distressed Regions strategize to create and an implementation plan to build proposes adding a reference to Title IX and retain new and better jobs and upon the Region’s strengths and of the Education Amendments of 1972, respond quickly and effectively to opportunities and resolve or mitigate as amended (20 U.S.C. 1681 et seq.), sudden economic dislocations. the weaknesses and threats facing the which proscribe discrimination on the In this NPRM, EDA proposes minor Region, but should not be inconsistent basis of sex in any education program or clarifications and modifications to the with applicable State and local activity receiving Federal financial Planning program. First, EDA proposes economic development or workforce assistance, whether or not such program to modify § 303.6(b)(1) to replace development strategies; and (d) or activity is offered or sponsored by an ‘‘including’’ with ‘‘which may include’’ performance measures used to evaluate educational institution. Practically to clarify that the CEDS Strategy the Planning Organization’s successful speaking, such discrimination has long Committee has the discretion to development and implementation of the been prohibited under EDA’s programs, determine which parties represent the CEDS. Because EDA has consolidated because various other provisions main economic interests of the Region. required CEDS elements to include prohibit discrimination on this basis, Those parties may include some but not those that are generally considered to be which have been incorporated under the all of the listed entities. Second, as a foundational for a successful planning regulation at § 302.20(a)(2), as have the result of the broad discretion conferred process, EDA wants to emphasize that a DOC’s regulations as 15 CFR part 8a, upon the CEDS Strategy Committee to non-EDA funded CEDS should include which implement Title IX of the determine which parties represent the all elements of an EDA-funded CEDS. Education Amendments of 1972, as main economic interests of the Region, However, in particular circumstances, amended. However, a direct reference to the last sentence of § 303.6(b)(1) is now such as a natural disaster or sudden and Title IX of the Education amendments of superfluous. As such, EDA proposes to severe economic dislocation, EDA will 1972, as amended has been missing, and remove the last sentence and to revise accept a non-EDA funded CEDS that we add that via this NPRM. that section to clarify that Indian Tribes does not include the foundational CEDS and State officials may be represented Part 303—Planning Investments and elements. With this in mind, EDA on the CEDS Strategy Committee, along Comprehensive Economic Development proposes revisions to § 303.7(c)(1), with all other groups listed, when Strategies specifically in the first sentence representative of the economic interests replacing the phrase ‘‘without fulfilling Part 303 sets forth regulations of the region. Third, in accordance with all the requirements of paragraph (b) of governing EDA’s Planning program, § 303.6 (‘‘Partnership Planning and the this section’’ with the phrase ‘‘so long through which the agency provides EDA-funded CEDS process’’), Planning as it includes all of the elements listed assistance to help Eligible Applicants Organizations of EDDs must submit a in paragraph (b) of this section’’ and create strategies or plans to stimulate revised CEDS to EDA at least every five adding the new sentence ‘‘In certain and guide the economic development years as specified under § 303.6(b)(3)(ii). circumstances, EDA may accept a non- efforts of a community or Region. EDA To ensure that participating counties or EDA funded CEDS that does not contain has three distinct types of Planning other areas within the EDD remain all the elements listed in paragraph (b) Investments: (1) Partnership Planning; engaged in the planning process, EDA of this section’’ between the existing (2) State Planning; and (3) Short-Term proposes to require that Planning first and second sentences of this Planning. Through EDA’s Partnership Organizations obtain renewed provision. Planning Investments, the agency commitments to support the economic facilitates the development, development activities of the District Part 304—Economic Development implementation, revision, or from such counties or areas as part of Districts replacement of Comprehensive the five-year renewal. Therefore, we Part 304 on Economic Development Economic Development Strategies propose adding the sentence, ‘‘In Districts, which also may be referred to (‘‘CEDS’’). EDA provides Partnership connection with the submission of a as a ‘‘District’’ or an ‘‘EDD’’ as stated in Planning awards to Planning new or revised CEDS, the Planning § 300.3, sets forth the Regional Organizations (e.g., District Organization must obtain renewed eligibility requirements that must be Organizations) serving as EDA- commitments from participating satisfied in order for EDA to consider a designated Economic Development counties or other areas within the District Organization’s request to Districts (‘‘EDD’’) (as defined in § 300.3) District to support the economic designate a Region as an EDD, including throughout the U.S. The EDDs are development activities of the District,’’ submission of an EDA-approved CEDS, recognized by the State(s) in which they to § 303.6(b)(3)(ii). and the District Organization’s reside as multijurisdictional councils of In addition, in accordance with sub- formation and organizational governments, regional commissions, or section (c)(1) of § 303.7 (‘‘Requirements requirements. This part also contains planning and development centers. The for Comprehensive Economic provisions relating to termination and Partnership Planning awards enable Development Strategies’’), EDA may performance evaluations of District Planning Organizations to manage and accept a non-EDA funded CEDS, even if Organizations. coordinate the development and such a strategy does not contain all In the 2011 NPRM and 2014 Final implementation of CEDS to address the elements required of an EDA-funded Rule, in response to comments that
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organizational requirements applicable Part 306—Training, Research and both public infrastructure and business to District Organizations should be more Technical Assistance lending activities are subject to subpart flexible to allow the groups to focus on Part 306 sets out the requirements for B and that special award conditions effective strategy development and EDA’s Local and National Technical may be used to provide appropriate implementation rather than meeting Assistance and Research Investments. modifications to either type of lending. membership thresholds, EDA revised Local and National Technical While the current regulations state that subsection (c)(2) of § 304.2 (‘‘District Assistance Investments help Recipients RLFs may be used for business and Organizations: Formation, fill the knowledge and information gaps other types of lending, the language we organizational requirements and that may prevent leaders in the public propose to remove created confusion about the applicability of the RLF operations’’), to remove the current and non-profit sectors in economically membership thresholds, but maintain regulations to other types of lending. In distressed Regions from making optimal the requirement that governing bodies addition, in the second sentence of decisions on local economic demonstrate that they are broadly § 307.6, we add the phrase ‘‘EDA- development issues. Through the representative of the principal economic funded’’ between the phrase ‘‘apply to’’ Research program, EDA invests in interests of the Region. However, in and the acronym ‘‘RLFs’’ to clarify that research and technical assistance- making this change, EDA inadvertently the RLF regulations in subpart B to part related Projects to promote used language that can be interpreted to 307 apply to EDA-funded RLFs. competitiveness and innovation in require that all District Organizations In § 307.7 (‘‘Revolving Loan Fund distressed rural and urban Regions. EDA include members from certain sectors; award requirements’’), EDA proposes does not propose any changes to part specifically, the phrase in § 304.2(c)(2) additional language to clarify the that reads ‘‘including the private sector, 306 through this NPRM. compliance obligations for RLF Grants public officials, community leaders, Part 307—Economic Adjustment and update the reference to location of representatives of workforce Assistance Investments the Compliance Supplement, which was development boards, institutions of changed with the promulgation of the Part 307 sets out the requirements for higher education, minority and labor Uniform Guidance. Specifically, in awards under EDA’s Economic groups, and private individuals’’ addition to part 307, RLF Recipients Adjustment Assistance program, which (emphasis on the word ‘‘including’’ must comply with relevant provisions of can provide a wide-range of technical added). EDA proposes replacing the parts 300 through 303, 305, and 314 of assistance, planning, and infrastructure word ‘‘including’’ in this sentence with 13 CFR chapter III, which set forth assistance in Regions experiencing the phrase ‘‘which may include’’ to EDA’s general definitions, general terms adverse economic changes that may indicate that these groups should be and conditions for Investment occur suddenly or over time, including included insofar as they represent Assistance, Planning requirements, strategy development, infrastructure principal economic interests of the Public Works requirements, and Region. Each District Organization must construction, and Revolving Loan Fund property management requirements. continue to demonstrate that its (‘‘RLF’’) capitalization. Subpart A of Therefore, in § 307.7(b), EDA proposes governing body is broadly part 307 details the general adding the phrase ‘‘, as well as relevant representative of the principal economic requirements for Economic Adjustment provisions of parts 300 through 303, interest of the Region and that it has the Assistance awards, and subpart B sets 305, and 314 of this chapter,’’ between capacity to implement the EDA- out requirements specific to the RLF the phrases ‘‘set forth in this part’’ and approved CEDS. program. As noted above in the ‘‘and in the following publications’’. In Overview of Proposed Changes to the addition, in § 307.7(b)(2), we replace the Part 305—Public Works and Economic RLF Program, a focus of this NPRM is reference to ‘‘OMB Circular A–133’’ as Development Investments strengthening and clarifying EDA’s RLF the location of the Compliance Part 305 provides information about regulations to improve the agency’s Supplement with ‘‘, which is Appendix EDA’s Public Works and Economic ability to monitor RLF performance and XI to 2 CFR part 200’’ and with respect Development Investments. Section provide targeted technical assistance to the electronic availability of the 305.1 explains the purpose and scope of through a risk-based management Compliance Supplement, we replace the these Investments and § 305.2 specifies framework and propose changes general reference to the OMB Web site the scope of activities eligible for designed to clarify and streamline RLF with the more specific site where all consideration under a Public Works requirements. Given the important role OMB circulars, including the Investment and sets forth a list of of this program as a driver of small Compliance Supplement, are located. determinations that EDA must reach in business growth, job creation, and In § 307.8 (‘‘Definitions’’), EDA order to award a Public Works economic development, EDA seeks the proposes adding several new definitions Investment. Specific application public’s input and insight in the and revising existing definitions as we requirements are set forth in § 305.3, regulatory revision process. implement the proposed risk-based and § 305.4 provides the requirements Specifically, EDA proposes to clarify framework to manage RLF Grants. for Public Works Investments awarded the language in § 307.6 (‘‘Revolving Specifically, we propose adding new solely for design and engineering work. Loan Funds established for business definitions for the following terms: EDA proposes two minor changes to lending’’) by removing the reference to • Allowable Cash Percentage as ‘‘the Part 305 in this NPRM to reflect the ‘‘business’’ lending in the title to that average percentage of the RLF Capital promulgation of the Uniform Guidance. section, as well as the phrase in the Base maintained as RLF Cash Available Specifically, in sub-section (b) of § 305.6 second sentence of the provision for Lending by RLF Recipients in each (‘‘Allowable methods of procurement for regarding subpart B’s application to EDA regional office’s portfolio of RLF construction services’’) and sub-section ‘‘business lending activities’’ and the Grants over the previous year.’’ This (c) of § 305.8 (‘‘Recipient-furnished phrase ‘‘to accommodate non-business defined concept will serve as a equipment and materials’’), EDA RLF awards’’ regarding the application replacement for the concept of the replaces the references to ‘‘15 CFR parts of special award conditions in the third capital utilization standard, which is 14 or 24, as applicable’’ with a reference sentence of the provision. By removing currently found in § 307.16(c) and to ‘‘2 CFR part 200’’. this language, we seek to clarify that requires RLF Recipients to manage their
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repayment and lending schedules to Voluntarily Contributed Capital, less manage an RLF in accordance with an provide that at all times, at least 75 any loan losses and disallowances. RLF Plan, Prudent Lending Practices, percent of the RLF Capital is loaned or Except as used to pay for eligible and the terms and conditions of the RLF committed. The Allowable Cash reasonable administrative costs Grant, and all applicable policies, laws, Percentage will be defined annually by associated with the RLF’s operations, and regulations.’’ While this term is each EDA Regional Office for that the RLF Capital Base is maintained in used throughout the existing region’s RLF Grants based on the two forms at all times: As RLF Cash regulations, it was not previously previous year’s average percentage of Available for Lending and as defined and EDA thinks it will be useful unloaned and uncommitted cash held outstanding loan principal.’’ Currently, as a defined term. by the region’s portfolio of RLFs. See the the term RLF Capital is used and • Voluntarily Contributed Capital as description of proposed changes to sub- defined as an equation of ‘‘Grant funds ‘‘an RLF Recipient’s voluntary infusion section (c) of § 307.16(c) (‘‘Risk Analysis plus Local Share plus RLF Income, less of additional non-EDA funds into the System’’) and sub-section (b) of § 307.17 any amount used for eligible and RLF Capital Base that is separate from (‘‘Requirements for Revolving Lon Fund reasonable costs necessary to administer and exceeds any Local Share that is Cash Available for Lending’’) below for the RLF and any amount of loan required as a condition of the RLF more information on how the Allowable principal written off.’’ While the current Grant. Voluntarily Contributed Capital Cash Percentage concept will work. regulations define RLF Capital to is an irrevocable addition to the RLF • Disbursement Phase as ‘‘the period apparently comprise all RLF assets, the Capital Base and must be administered of loan activity where Grant funds regulations also refer to the ‘‘capital in accordance with EDA regulations and awarded have not been fully disbursed base of an RLF’’ or the ‘‘RLF Capital policies.’’ EDA proposes adding this to the RLF Recipient.’’ While EDA’s base’’, without defining that concept definition to clarify that, as of the regulations have indicated that (see the current definition of effective date of these regulations, particular requirements apply during Recapitalization Grants at § 307.8 Voluntarily Contributed Capital is an the time period when EDA is disbursing (defining Recapitalization Grants as RLF Recipient’s voluntary infusion of funds to an RLF Recipient, the term has ‘‘additional Grant funds to increase the additional RLF capital that is separate never been defined. EDA proposes capital base of an RLF’’) and the current from and exceeds any Matching Share defining Disbursement phase to clarify regulations at §§ 307.11(a)(1) (requiring that is required as a condition of the the specific requirements that apply the amount of fidelity bond coverage to RLF Grant. This definition is being during this phase of an RLF’s life cycle, be at least ‘‘25 percent of the RLF added to clarify the process for including that RLF Income earned Capital base’’), 307.12(a) (requiring RLF contributing additional capital to an during the Disbursement Phase is not Income to ‘‘be placed into the RLF RLF and to explain how the additional required to be used for new RLF loans, Capital base’’ and providing that RLF capital is treated once added to the RLF unless otherwise specified in the terms Income earned in one period cannot be Capital Base. In particular, once added, and conditions of the RLF Grant. See the ‘‘withdrawn from the RLF Capital base such capital will be considered description of proposed revisions to in a subsequent Reporting Period for irrevocable and will become part of the § 307.11 (‘‘Pre-Disbursement any purpose other than lending without RLF Capital Base. Requirements and Disbursement of the prior written consent of EDA’’), and In addition, we propose revising the Revolving Loan Funds’’) for 307.16 (stating that the usual lending definitions of the following existing requirements applicable to the schedule ‘‘requires that the RLF terms: Disbursement Phase. Recipient lend the entire amount of the • In the existing definition of • Risk Analysis System as ‘‘a set of initial RLF Capital base within three Recapitalization Grants, we propose metrics defined by EDA to evaluate a years of Grant award’’ and allowing replacing the phrase ‘‘capital base of an Recipient’s administration of its RLF different capital utilization rate based RLF’’ within the proposed defined term Grant and that may include but is not on the size of the ‘‘RLF Capital base’’). ‘‘RLF Capital Base’’ for clarity. • limited to capital, assets, management, EDA proposes introducing a definition In the existing definition of earnings, liquidity, strategic results, and of RLF Capital Base so that this Reporting Period, EDA proposes to financial controls.’’ EDA is introducing important concept is clearly defined. change the Reporting Period to align a risk-based management framework • RLF Cash Available for Lending as with each RLF Recipient’s fiscal year that will be used to evaluate a ‘‘the portion of the RLF Capital Base end in order to ensure consistency Recipient’s administration of its RLF that is held in cash and available to between RLF reports using Form ED– Grant and that may include the make loans.’’ As specified in the 209 and annual audit reports by following metrics: Capital, assets, definition of RLF Capital Base, RLF replacing the phrase ‘‘means the period management, earnings, liquidity, assets are maintained in two forms at all from April 1st to September 30th or the strategic results, and financial controls. times: Held by the RLF Recipient as period from October 1st to March 31st’’ This is a new approach based on the cash available for lending and as with the phrase ‘‘is based on the RLF CAMELS rating system used to assess outstanding loan principal. EDA is Recipient’s fiscal year end and is on an financial institutions and to identify proposing this new definition to clarify annual or semi-annual basis as those in need of additional attention. requirements applicable to the part of determined by EDA.’’ EDA will specify See the discussion of proposed revised the RLF Capital Base that is currently an RLF Recipient’s reporting frequency § 307.16 (‘‘Risk Analysis System’’) for unloaned or uncommitted and available as either on an annual or semi-annual more information on EDA’s proposed to make loans. See the discussion of basis, which will be based in part on the risk-based approach to managing RLF proposed revised § 307.17 Recipient’s score under the Risk Grants. (‘‘Requirements for Revolving Loan Analysis System. See also § 307.14(a) • RLF Capital Base as ‘‘the total value Fund Cash Available for Lending’’) for (‘‘Revolving Loan Fund report’’) for of RLF Grant assets administered by the more information on the requirements revisions regarding the frequency of RLF Recipient. It is equal to the amount applicable to RLF Cash Available for reports. of Grant funds used to capitalize (and Lending. • In the definition of RLF Income, we recapitalize, if applicable) the RLF, plus • RLF Recipient as ‘‘the Eligible propose clarifying the language Local Share, plus RLF Income, plus Recipient that receives an RLF Grant to excluding repayments of principal and
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interest earned on excess funds that are pre-disbursement requirements turn-down letter be allowed in the RLF remitted to the U.S. Treasury by noting regarding loan and accounting system Plan. that these are excluded pursuant to documents, to § 307.11(a) titled ‘‘Pre- The provision regarding evidence of § 307.20(h). Therefore, we delete as disbursement requirements’’: (1) The fidelity bond coverage will remain in repetitive the parenthetical ‘‘(excluding requirement that a qualified place in § 307.11(a), but will be re- interest earned on excess funds independent accountant certify as to the lettered as § 307.11(a)(3). In addition, pursuant to § 307.16(c)(2))’’ in the first adequacy of the RLF Recipient’s EDA revises the provision to establish sentence of the definition and correct a accounting system to identify, minimum amount of coverage required citation in the final sentence of the safeguard, and account for the entire as the maximum loan amount allowed definition by replacing the reference to RLF Capital Base, outstanding RLF for the EDA-approved RLF Plan. The ‘‘§ 307.16(c)(2)(i)’’ with a reference to loans, and other RLF operations (as existing regulation allows the minimum ‘‘§ 307.20(h)’’. proposed § 307.11(a)(1)); and (2) the amount of coverage to be equal to the In addition, EDA proposes to better requirement that the Recipient certify greater of the maximum permissible organize the regulations by placing all that the standard loan documents are in loan amount or 25 percent of the RLF pre-disbursement and Disbursement place and have been reviewed by legal Capital base. In practice, the alternative Phase requirements into § 307.11. To counsel (as proposed § 307.11(a)(2)). See approach permitting coverage of at least accomplish this, EDA revises the title of the proposed deletions at § 307.15(b) 25 percent of the RLF Capital Base the section to read ‘‘Pre-Disbursement and appropriate re-lettering of that requires Recipients to regularly change Requirements and Disbursement of provision. the amount of fidelity bond coverage to funds to Revolving Loan Funds’’ from With respect to the certification remain in compliance. Also, the two ‘‘Disbursement of funds to Revolving regarding legal counsel review of alternative approaches to determining Loan Funds’’. The timing language in standard RLF loan documents currently the amount of required coverage are § 307.11(a) that currently reads ‘‘Prior to set out at § 307.15(b)(2), in relocating likely to yield approximately the same any disbursement of EDA funds, RLF the requirement to § 307.15(a)(2), EDA amount. EDA seeks to simplify this Recipients are required to provide in a proposes a revision to require the requirement and reduce the burden on form acceptable to EDA’’ is revised to certification that standard loan Recipients by removing the phrases ‘‘the read ‘‘Within 60 calendar days before documents are adequate and comply greater of’’ and ‘‘, or 25 percent of the the initial disbursement of EDA funds, with the terms and conditions of the RLF Capital base’’ from re-lettered § 307.11(a)(3). the RLF Recipient must provide the RLF Grant, RLF Plan, and applicable following in a form acceptable to EDA’’, We also add language following State and local law to come directly and then we revise the regulations to list § 307.11(a)(3) to clarify that the RLF from the RLF Recipient’s legal counsel the certifications and evidence required Recipient must maintain the adequacy rather than have the Recipient certify as before EDA will make an initial of the RLF’s accounting system and to counsel review. This change will not disbursement of Grant funds. Currently, standard RLF loan documents, as well only streamline this process but also the regulations place different and as records and documentation to ensure that the Recipient’s legal counsel sometimes conflicting timing demonstrate that these requirements are reviewed the standard loan documents requirements on these certifications. met, throughout the RLF’s operation. and verified that those documents are Specifically, under current § 307.11(a), This maintenance language includes a adequate and in compliance with the RLF Recipients must submit evidence of cross-reference to proposed fidelity bond coverage and the applicable requirements. Therefore, in § 307.13(b)(3) where we underscore that independent accountant’s certification rewording this provision, we propose the RLF Recipient must maintain regarding the RLF Recipient’s replacing the phrase ‘‘the Recipient records to document compliance with accounting system, respectively, before shall certify that standard RLF loan these requirements. This NPRM also any disbursement of EDA funds. In documents reasonably necessary or proposes conforming language changes contrast, current § 307.15(b)(1) requires advisable for lending are in place and to incorporate these requirements into a the Recipient to submit the independent that these documents have been list format. Because we are moving the accountant’s certification regarding the reviewed by legal counsel’’ with ‘‘The language regarding the accountant RLF Recipient’s accounting system RLF Recipient’s certification that certification from § 307.15 to § 307.11, within 60 days prior to the initial standard RLF loan documents this NPRM removes the language in disbursement of EDA funds, and current reasonably necessary or advisable for § 307.11(a)(2) that cited to the § 307.15(b)(2) requires the RLF lending are in place and a certification certification required under § 307.15. Recipient’s certification regarding from the RLF Recipient’s legal counsel.’’ Finally, we make a minor change to re- standard loan documents before the In the same section, we also propose lettered § 307.11(a)(1) to reflect the disbursement of any EDA funds). In removing the requirement that a signed promulgation of the Uniform Guidance, practice, while RLF Recipients must bank turn-down letter be included in replacing the reference to ‘‘OMB maintain these standards throughout the each loan package. We propose Circular A–133 requirements’’ with ‘‘the duration of an RLF’s operations, the replacing the requirement that RLF audit requirements set out as subpart F certifications and evidence are only Recipients obtain and borrowers to 2 CFR part 200’’. See proposed required before the initial disbursement provide a signed bank turn-down letter revisions to §§ 307.11(a) and 307.15. of EDA funds. Therefore, EDA is to demonstrate that credit is not In § 307.11(c), we simplify the reconciling the timing of the otherwise available with the more language regarding the amount of Grant requirements and clarifying that these general requirement for evidence fund disbursements. EDA believes that items are required within 60 calendar demonstrating that credit is not the current language is overly days before the initial disbursement of otherwise available on terms and complicated and causes undue EDA funds by revising the language of conditions that permit the completion confusion. The revised language § 307.11(a). or successful operation of the activity to clarifies that EDA will disburse funds in In addition, we propose moving the be financed. This revision allows EDA the amount needed to meet the Federal following two provisions from to remove the requirement that share of a new RLF loan. EDA will § 307.15(b), which currently sets out alternative evidence to a signed bank continue to disburse Grant funds as the
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RLF Recipient closes on loan Local Share is cash. See proposed ‘‘incurred’’ with ‘‘accrued,’’ and, in obligations. For example, assume an revisions to §§ 307.11(f) and 307.17(d). § 307.12(a)(1) and (2), we replace the RLF Grant has a Matching Share In addition, to consolidate all pre- phrase ‘‘six-month Reporting Period’’ requirement of 50 percent. If the RLF disbursement and disbursement with the phrase ‘‘fiscal year of the RLF Recipient closes on a loan obligation requirements into § 307.11, EDA Recipient.’’ In § 307.12(a)(3), we replace worth $30, EDA will disburse $15. proposes relocating the provisions the phrase ‘‘Reporting Period’’ with Therefore, EDA proposes replacing the regarding loan closing and disbursement ‘‘fiscal year.’’ In addition, we make a phrase ‘‘not to exceed the difference, if schedules, as well as time schedule non-substantive change in § 307.12(a)(1) any, between the RLF Capital and the extensions, from § 307.16(a) and (b), to add the phrase ‘‘is earned’’ after amount of a new RLF loan, less the respectively, to § 307.11 and re-lettering ‘‘Such RLF Income’’ to clarify that RLF amount, if any, of the Local Share them as § 307.11(g) and (h), Income is earned by the RLF Recipient required to be disbursed concurrent respectively. We also propose non- as opposed to administrative costs, with Grant funds’’ with the phrase ‘‘be substantive conforming changes to which are incurred by the RLF the amount required to meet the Federal reflect defined terms and correct cross- Recipient. In addition, in § 307.12(a)(3), share requirement of a new RLF loan’’ references because of this we replace the phrase ‘‘RLF Capital in the first sentence of § 307.11(c). reorganization. Specifically, EDA base’’ with the proposed defined term In addition, EDA proposes new replaces the phrase ‘‘initial RLF Capital ‘‘RLF Capital Base.’’ language to § 307.11(c) to clarify how Base’’ with ‘‘RLF Grant’’ in the final Furthermore, under EDA’s current RLF Income is treated during the sentence of re-lettered § 307.11(g)(1) to regulations, an RLF Recipient may use clarify the corpus of funds to which the Disbursement Phase. The current 100 percent of RLF Income incurred in lending schedule applies; replaces the regulations specify that RLF Income a six-month Reporting Period to cover cross-reference to ‘‘§ 307.16(b)’’ in re- held to reimburse administrative costs administrative expenses by submitting lettered § 307.11(g)(2)(iii) with a does not need to be disbursed to draw an RLF Income and Expense Statement reference to ‘‘paragraph (h) of this additional Grant funds, but do not (i.e., Form ED–209I). EDA proposes to section’’ to reflect the reorganization of address RLF Income not used for no longer require the RLF Income and these provisions; corrects a typo by administrative costs. Through this Expense Statement, but to clearly replacing the plural ‘‘requests’’ with a regulatory revision, EDA is clarifying specify that RLF Recipients may not use singular ‘‘request’’ in the last sentence that RLF Income earned during the funds in excess of RLF Income for Disbursement Phase must be placed in of re-lettered § 307.11(h)(1); and breaks re-lettered § 307.11(h)(2) into two administrative costs during the RLF the RLF Capital Base and may be used Recipient’s fiscal year unless directed to to reimburse eligible and reasonable sentences for clarity and emphasis. See proposed revisions to §§ 307.11(g), do so by EDA. While EDA would no administrative costs and increase the 307.11(h), and 307.16(a) and (b). longer require Recipients to submit the RLF Capital Base; however, RLF Income In keeping with EDA’s effort to clarify RLF Income and Expense Statement, earned during the Disbursement Phase the distinct requirements that apply Recipients would continue to account need not be disbursed to support new during the Disbursement and Revolving for their RLF Income and administrative RLF loans, unless otherwise specified in Phases of an RLF, we propose to rename expenses through their regular ED–209 the terms and conditions of the RLF the title of § 307.12 ‘‘Revolving Loan reporting. EDA also proposes language Grant. See proposed revisions to Fund Income requirements during the advising that RLF Recipients are § 307.11(c). Revolving Phase; payments on defaulted expected to keep administrative In addition, EDA proposes a non- and written off Revolving Loan Fund expenses to a minimum to maintain the substantive revision to § 307.11(d) to loans; Voluntarily Contributed Capital’’ RLF Capital Base available for lending capitalize the word ‘‘Grant.’’ to clarify that the provision describes and to specify that the percentage of This NPRM locates all provisions that certain requirements that apply during RLF Income used for administrative set out Local Share requirements in the Revolving Phase of the RLF and expenses will be one of the performance § 307.11(f), which requires re-locating addresses other topics, rather than metrics used in EDA’s Risk Analysis the substance of the provision at solely setting out RLF Income System. Under the proposed Risk § 307.17(d) regarding use of In-Kind requirements. We also add the Analysis System, RLF Recipients will be Contributions to satisfy Local Share introductory phrase ‘‘During the incentivized to manage their expenses requirements. Accordingly, EDA Revolving Phase,’’ to the first sentence in order to maintain their RLF Capital proposes removing current § 307.17(d) of § 307.12(a). In addition, EDA is Base, and EDA will work proactively and re-numbering the regulation providing additional flexibilities in with Recipients to help maintain their accordingly. In revised § 307.11(f), EDA using RLF Income to cover RLF Capital Base and, through the adds the phrase ‘‘, which must be administrative costs. Currently, RLF annual report and audit, to monitor use specifically authorized in the terms and Income earned during one six-month of RLF Income. Given EDA’s proposal to conditions of the RLF Grant and may be Reporting Period must be used to cover move to a risk-based management used to provide technical assistance to administrative costs accrued during that framework and the agency’s efforts to borrowers or for eligible RLF same six-month period. EDA is encourage Recipients to use RLF Income administrative costs,’’ between the term extending the time period during which to maintain the RLF Capital Base, as ‘‘In-Kind Contributions’’ and the phrase RLF Income must be used to cover described above, EDA will no longer ‘‘and cash Local Share’’ in the first accrued administrative costs to a full require the RLF Income and Expense sentence of § 307.11(f)(2). EDA notes fiscal year. Accordingly, EDA proposes Statement, which will reduce the that because the purpose of the RLF revising § 307.12(a) to clarify that RLF reporting burden on Recipients. program is to provide capital to Income earned in one fiscal year of the Accordingly, EDA replaces current borrowers that cannot otherwise access RLF Recipient must be used to cover § 307.12(a)(4), which requires the credit, EDA rarely determines that In- administrative costs accrued during the submission of an RLF Income and Kind Contributions are necessary and same fiscal year, instead of the same six- Expense Statement, with proposed reasonable for accomplishment of the month Reporting Period. Accordingly, language that prohibits RLF Recipients RLF program and, therefore, most RLF in § 307.12(a)(1), we replace the word, from using funds in excess of RLF
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Income for administrative costs in a capital is treated once added to the RLF electronic format, unless EDA approves Recipient’s fiscal year, sets the Capital Base, we also propose adding a a paper submission’’ with ‘‘must expectation that administrative costs provision within the section on pre- complete and submit an RLF report, should be kept to a minimum, and states disbursement and disbursement using Form ED–209 or any successor that the percentage of RLF Income used requirements to specify that when an form, in a format and frequency as for administrative costs will be a metric RLF Recipient wishes to add additional required by EDA.’’ under the Risk Analysis System. See capital to the RLF Capital Base, the To improve the accuracy and quality proposed revisions to § 307.12(a)(4) and Recipient must submit a written request of the information provided during the the deletion of the current provision at that specifies the source of the funds to regular reporting process, EDA proposes § 307.14(c), which sets out the be added. Upon approval by EDA, the requiring that RLF Recipients certify as requirement for the RLF Income and Voluntarily Contributed Capital part of their regular reporting to EDA Expense Statement. becomes an irrevocable part of the RLF that the RLF is operating in accordance In § 307.12(b), which sets out Capital Base and may not be with their RLF Plan and that the compliance guidance for charging costs subsequently withdrawn or separated information being provided is complete against RLF Income, EDA proposes from the RLF. This should help prevent and accurate. In § 307.14(b), we remove revisions to reflect the promulgation of situations when the sources of the adjective ‘‘semi-annual’’ and add the the Uniform Guidance. Specifically, in Voluntarily Contributed Capital phrase ‘‘and that the information revised § 307.12(b)(1), EDA specifies subsequently seek to retrieve the funds provided is complete and accurate.’’ In that for RLF Grants made or that were, in effect, commingled with addition, EDA proposes deleting the recapitalized on or after December 26, the rest of the Capital Base, making it second sentence of § 307.14(b) to clarify 2014, the RLF Recipient must comply difficult—if not impossible—to separate that proposals to modify RLF Plans with the administrative and cost out those additional funds and to cannot be made through the reporting principles set out in 2 CFR part 200. In determine the local and Federal shares. process. Such modifications can only be revised § 307.12(b)(2), EDA specifies See proposed revisions to §§ 307.8 and done by separate notification to EDA as that for RLF Grants awarded before 307.12(d). described in § 307.9(c). Finally, as noted December 26, 2014, unless otherwise EDA proposes to revise RLF reporting previously in this NPRM, because EDA indicated in the terms of the Grant, the requirements to specify that records for proposes to no longer required the RLF Recipient must comply with the administrative expenses must be kept submission of an RLF Income and cost principles set out in 2 CFR parts for three years from the submission date Expense Statement, EDA removes 225 (for State, local, and Indian tribal of the last report that covers the fiscal § 307.14(c) in its entirety. governments); 230 (for non-profit year in which the costs were recorded, EDA proposes clarifying the provision organizations other than institutions of rather than the last semi-annual report permitting the inclusion of a loan loss higher education, hospitals, and other that covers the Reporting Period in reserve in an RLF Recipient’s financial organizations); or 220 (for educational which the costs were incurred. statements, in accordance with institutions), as applicable. EDA Therefore, in § 307.13(b)(2), we propose generally accepted accounting proposes a new § 307.12(b)(3) to specify deleting the phrase ‘‘last semi-annual’’ principles (‘‘GAAP’’) to show the fair that regardless of when an RLF Grant between the phrase ‘‘date of the’’ and market value of an RLF loan portfolio. was awarded or recapitalized, the audit the word ‘‘report’’ and replace the This provision has created confusion on requirements set out as subpart F to 2 defined term ‘‘Reporting Period’’ with the part of some RLF Recipients, who CFR part 200 apply to audits of the RLF ‘‘fiscal year’’. In addition, we propose understood it to mean that the inclusion Recipient for fiscal years beginning on revising § 307.13(a)(3) to specify that, of a loan loss reserve also applied to the or after December 26, 2014, as does the consistent with the requirements of Schedule of Expenditures of Federal Compliance Supplement, as § 307.11(a), for the duration of RLF Awards (‘‘SEFA’’), which is the list of appropriate. operations, Recipients must retain expenditures for each Federal award In § 307.12(c), we propose minor records to demonstrate the adequacy of covered by the Recipient’s financial adjustments to clarify that the the RLF’s accounting system, that statements and must be reviewed as part prioritization of payments on RLF loans standard RLF loan documents are in of the audit process. While GAAP includes payments on both defaulted place, and that sufficient fidelity bond permits the inclusion of a loan loss RLF loans and those that have been coverage is maintained. In addition, the reserve in financial statements, subpart written off, adding the phrase ‘‘and existing requirement to make records F to 2 CFR part 200, which sets out the written off’’ to the heading of § 307.12(c) available for inspection is re-lettered as requirements for handling audits of and the first sentence of the provision new § 307.13(a)(4). See proposed Federal grant programs, specifically between the word ‘‘defaulted’’ and the revisions to § 307.13. prohibits the inclusion of a loan loss phrase ‘‘RLF loan’’. In addition, we This NPRM proposes removing the reserve in the SEFA. As a result, RLF propose revising the cross reference to stipulation that all RLF reports be Recipients that understood the loan loss ‘‘§ 307.20’’ in the provision to submitted to EDA on a semi-annual reserve provision of the RLF regulations ‘‘§ 307.21’’ to reflect the proposed basis, which will permit EDA to to apply to the SEFA ultimately reorganization of the noncompliance establish a reporting frequency (annual provided inaccurate (and undervalued) provisions. See proposed revisions to or semi-annual) based on the objective RLF valuations in the SEFA. EDA hopes § 307.12(c). risk presented by a given RLF, allowing to resolve this confusion by adding a We also propose adding new EDA to more closely monitor RLF sentence to the end of § 307.15(a)(2) that § 307.12(d) to introduce additional program performance and engage with clearly provides that loan loss reserves clarifying language regarding the RLF Recipients to identify and address are non-cash entries only and shall not treatment of the proposed defined term existing and potential challenges. be used to reduce the nominal value of Voluntarily Contributed Capital. As Accordingly, EDA proposes revising the the RLF in the SEFA. In addition, the noted above, in addition to proposing a title of § 307.14 to read ‘‘Revolving Loan current regulations allow a loan loss definition to clarify the process for Fund report’’ and in § 307.14(a), reserve to be recorded to ‘‘show the fair contributing additional capital to an replaces the phrase ‘‘must complete and market value of the RLF’s loan RLF and to explain how the additional submit a semi-annual report in portfolio’’. In the first sentence of
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§ 307.15(a)(2), EDA proposes replacing modeled on the Uniform Financial system for monitoring loan default rates, the phrase ‘‘fair market’’ with ‘‘adjusted Institutions Rating System (the respectively. current’’ to allow a loan loss reserve to ‘‘CAMELS’’ rating system), used by Consistent with EDA’s revisions to its be recorded as a non-cash entry to show regulators to assess financial institutions Definitions section, this NPRM revises the adjusted current value, which will and to identify those in need of extra § 307.17 to incorporate proposed more accurately reflect how RLF assistance or attention. The CAMELS defined terms and better specify EDA’s portfolios are valued. In addition, EDA system produces a composite rating by requirements related to the proposed revises § 307.15(a)(1) to reflect the examining six components: Capital defined term ‘‘RLF Cash Available for promulgation of the Uniform Guidance, adequacy, asset quality, management, Lending.’’ As such, EDA proposes replacing the reference to ‘‘in OMB earnings, liquidity, and sensitivity to revising the title of § 307.17 to read Circular A–133’’ with ‘‘the audit market risk. EDA proposes using factors ‘‘Requirements for Revolving Loan Fund requirements set out as subpart F to 2 that will likely include capital, assets, Cash Available for Lending’’ and CFR part 200’’ and, after the reference management, earnings, liquidity, replacing the term RLF Capital with the proposed defined term RLF Cash to the Compliance Supplement, adding strategic results, and financial controls, Available for Lending in the first the phrase ‘‘which is Appendix XI to 2 and to use the information and data sentence of § 307.17(a) and the heading CFR part 200,’’ to help the reader locate currently required to be submitted by the Supplement. and first sentence of paragraph (c) and Proposed § 307.15(c), which was re- RLF Recipients in regular reporting to paragraph (c)(6)(ii) of § 307.17. In lettered from § 307.15(d) to reflect the assign risk analysis ratings to each RLF. addition, we add the phrase ‘‘shall be relocation of loan and accounting Scores will be assigned for each factor deposited and held in an interest- systems certification requirements to on a numerical scale of one to three, bearing account by the Recipient and’’ § 307.11(a), sets out the requirements for with three being the highest score. The following ‘‘RLF Cash Available for RLF leveraging and enumerates scores will be totaled to determine each Lending shall be’’ in the first sentence investments that qualify as leverage. RLF Recipient’s classification as A, B, or of § 307.17(a) to clarify how RLF Recipients are currently required to C, with an A classification describing Recipients must maintain RLF Cash ensure funding from additional sources the highest performers, B identifying Available for Lending. at a ratio of $2 of additional funding to those who are generally managing their In addition, through this NPRM, EDA every $1 of RLF loans. This applies to program well but who may need some proposes adopting the concept of an the whole RLF portfolio, rather than for assistance on one or more areas, and C Allowable Cash Percentage, which will individual loans, and is effective for the labelling those Recipients that face be considered in the Risk Analysis duration of the RLF. EDA proposes to serious challenges with their programs System, to replace the capital utilization broaden RLF leveraging requirements to and require significant improvement. standard, which requires Recipients to enable Recipients to use funds from Recipients classified as B or C will manage their lending and repayment State and local lending programs, in generally be given a reasonable amount schedules so that at all times at least 75 addition to the non-guaranteed portions of time to become compliant with the percent of their RLF Capital is loaned or and 90 percent of the guaranteed relevant requirements and improve their committed. Noncompliance with the portions of Federal loan programs. score. However, persistent capital utilization standard frequently Similar to allowing Federal loans to noncompliance may result in EDA triggered sequestration as a remedy. count as leveraging, if the managers of undertaking appropriate compliance Although EDA encourages RLF State and local lending programs are actions, including requiring a corrective Recipients to prudently make capital willing to provide financing to a action plan, disallowing Grant funds, or available as much as possible, EDA borrower, EDA believes that such suspending or terminating the RLF recognizes that different regions face financing should count towards the Grant. As such, EDA proposes replacing very different economic and access to leveraging requirement. To better reflect EDA’s current management scheme, capital conditions and that a one-size- the content of this provision, EDA which mainly consists of the capital fits-all capital utilization standard can be difficult for RLF Recipients to meet proposes renaming § 307.15(c) ‘‘RLF utilization standard (see additional and for EDA to implement. To help leveraging’’ and replacing the phrase details on changes to this standard resolve this, EDA proposes to reverse ‘‘private investment’’ with ‘‘additional below) and monitoring loan default investment’’ in § 307.15(c)(1). In the standard on which RLF Recipients rates, with the Risk Analysis System. addition, we propose adding new will be assessed from the amount of Accordingly, through this NPRM we § 307.15(c)(1)(iv) to read ‘‘Loans from capital that is loaned or committed to propose completely revising § 307.16 to other State and local lending programs.’’ the amount of cash Recipients have on As noted throughout the NPRM, EDA name it ‘‘Risk Analysis System’’ and to hand available for lending—defined as proposes adopting a Risk Analysis locate the description of the Risk the Allowable Cash Percentage. System to evaluate and manage the Analysis System in paragraph (a) and its Each year, each EDA Regional Office performance of RLF Recipients to make compliance framework in paragraph (b). will calculate the average percentage of the RLF program more effective and As noted above, this NPRM proposes RLF Cash Available for Lending across efficient. Such an approach is designed relocating current paragraphs (a) and (b) their RLF portfolio and will notify RLF to provide Recipients with a set of of § 307.16, which set out requirements Recipients by January 1 of each year of portfolio management and operations for loan closing and disbursement the Allowable Cash Percentage to be standards to evaluate their RLF program schedules and time schedule used during the ensuing year. RLF and improve performance. It will also extensions, respectively, as proposed Recipients will be required to manage provide EDA with an internal tool for paragraphs (g) and (h) to § 307.11. We their repayment and lending schedules assessing the risk of each Recipient’s also propose removing paragraphs (c) to provide that at all times, their amount loan operations and identifying RLF and (d) of § 307.16, which set out the of RLF Cash Available for Lending does Recipients that require additional capital utilization standard (to be not exceed the Allowable Cash monitoring, technical assistance, or replaced by the proposed concept of the Percentage. For example, assume an other action. This approach to risk- Allowable Cash Percentage, as more EDA Regional Office’s RLF portfolio is based analysis and management is fully explained below) and EDA’s made up of five awards. Based on their
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2015 RLF reports, the percentage of each In addition, to address recent proposes removing the word, ‘‘merged,’’ RLF’s RLF Capital Base that was held as concerns EDA has encountered in from the discussion of additional RLF Cash Available for Lending was as administering the RLF program, we lending areas in the second sentence of follows: propose clearly stating that RLF Cash § 307.18(a)(1) to clarify that merging RLF 1—RLF Capital Base of Available for Lending may not be used RLFs and adding lending areas are two $4,500,000, of which $1,200,000 was to: (1) Serve as collateral to obtain credit different transactions. EDA is also held as RLF Cash Available for Lending; or any other type of financing without clarifying the terminology in RLF 2—RLF Capital Base of EDA’s prior written approval; (2) § 307.18(b)(1) used to describe a $7,600,000, of which $2,800,000 was support operations or administration of consolidated RLF by replacing the word held as RLF Cash Available for Lending; the RLF Recipient; or (3) undertake any ‘‘surviving’’ with the word ‘‘combined’’. RLF 3—RLF Capital Base of activity that would violate the This change is designed to make clearer $1,670,000, of which $630,000 was held requirements found in 13 CFR part 314, the distinction between consolidations, as RLF Cash Available for Lending; including § 314.3 (‘‘Authorized Use of which involve a single RLF Recipient, RLF 4—RLF Capital Base of Property’’) and § 314.4 (‘‘Unauthorized and mergers, which involve multiple $13,872,930, of which $2,974,025 was Use of Property’’). Using RLF funds in RLF Recipients. held as RLF Cash Available for Lending; these ways has long been prohibited by For clarity, this NPRM completely and EDA’s regulations; however, EDA reorganizes the compliance regulations RLF 5—RLF Capital Base of proposes to clearly state these by separating them into one section $5,423,000, of which $900,000 was held prohibitions and add them as new describing what actions are considered as RLF Cash Available for Lending. paragraphs (c)(7), (8), and (9) to noncompliance (§ 307.20 with the Based on these numbers, on January § 307.17. proposed title ‘‘Noncompliance’’) and 1, 2016, the EDA Regional Office would Finally, we propose minor clarifying another section listing remedies for inform all RLF Recipients in the region’s changes to the list of transactions for noncompliance (§ 307.21 with the RLF portfolio that the Allowable Cash which RLF Cash Available for Lending proposed title ‘‘Remedies for Percentage is 26 percent (the sum of may not be used. Specifically, in re- noncompliance’’). This reorganization is RLF Cash Available for Lending for the lettered § 307.17(c)(3), we replace the designed to help all RLF stakeholders 5 RLFs ($8,504,025) divided by the sum sentence ‘‘Provide for borrowers’ understand problematic practices and of the RLF Capital Base for the 5 RLFs required equity contributions under appropriate remedies. See proposed ($33,065,930) and that they must other Federal Agencies’ loan programs’’ revisions to §§ 307.20 and 307.21. In manage their lending and repayment with ‘‘Provide a loan to a borrower for connection with this, we propose schedules throughout 2016 so that at all the purpose of meeting the requirements revising the list of problematic practices times their RLF Cash Available for of equity contributions under another that could result in disallowances of a Lending does not exceed 26 percent. Federal Agency’s loan program’’. In portion of an RLF. EDA proposes to EDA also proposes to revise its addition, in the second sentence of re- remove the following from this list to compliance framework on this issue. As lettered § 307.17(c)(6)(ii), we replace the reflect their incorporation into the Risk noted above, noncompliance with the phrase ‘‘RLF Capital’’ with ‘‘RLF funds’’ Analysis System: (1) Having RLF loans capital utilization standard frequently and the phrase ‘‘reasonable period of that are more than 120 days delinquent; triggered automatic sequestration. Given time, as determined by EDA’’ with and (2) having excess cash sequestered the replacement of the capital ‘‘reasonable time frame approved by for 12 months or longer without an utilization standard with the more EDA’’. As noted above, current EDA-approved extension request. flexible Allowable Cash Percentage and § 307.17(d) is being removed to locate Procedures for dealing with delinquent the adoption of a Risk Analysis System, all provisions regarding In-Kind loans are also covered in Part 2 of the EDA proposes to no longer require Contributions within proposed RLF Plan. With regards to excess automatic sequestration of what is § 307.11(f). sequestered cash, as discussed above, currently referred to as ‘‘excess funds,’’ This NPRM clarifies that EDA can the automatic sequestration of funds is the difference between the actual approve multiple New Lending Area now being addressed by the Risk percentage of RLF Capital loaned and requests with respect to a given RLF. Analysis System and the use of an the capital utilization standard. With Recipients may request changes to their Allowable Cash Percentage. However, this change, noncompliance with the original or approved Lending Areas to EDA does reserve the right to take Allowable Cash Percentage will be address changes within the local appropriate compliance action if an RLF considered in EDA’s Risk Analysis economy or to respond to a burgeoning Recipient holds RLF Cash Available for System and may affect the RLF need. Currently, the regulations state Lending so that it is 50 percent or more Recipient’s ranking in the system. In that once EDA approves a New Lending of the RLF Capital Base without an addition, rather than being applied Area, it remains in place indefinitely. EDA-approved extension request. automatically, sequestration will be EDA is simply adding language to We also clarify the provision considered as one of a range of possible specify that the New Lending Area regarding a Recipient’s duty to tools used to ensure compliance with remains in place until EDA approves a compensate the Federal Government for the terms of the RLF Grant. subsequent request for a New Lending the Federal Share of the RLF Grant in Accordingly, EDA revises § 307.17 (b) Area. In § 307.18(a)(2), we add the the event that the Recipient requests to set out the requirements for the introductory phrase ‘‘Following EDA termination of the Grant. The current Allowable Cash Percentage and re- approval,’’ and replace the concluding regulations state that the Recipient letters existing § 307.17(b), which has phrase ‘‘shall remain in place requesting termination must been revised to set out restrictions on indefinitely following EDA approval’’ compensate the Federal Government for RLF Cash Available for Lending, as with ‘‘shall remain in place until EDA the Federal share of the RLF ‘‘property, § 307.17(c) and existing § 307.17(c), approves a subsequent request for a including the current value of all which provides that EDA may require New Lending Area’’. outstanding RLF loans.’’ EDA seeks to an independent third party to conduct We also propose clarifying language make this regulation clearer and easier a compliance and loan quality review, to distinguish between the addition of to comply with by requiring the as new § 307.17(d). lending areas and mergers of RLFs. EDA Recipient to compensate for the Federal
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share of the RLF Capital Base, including Adjustment Assistance Investments. including clarifying EDA’s requirements the monetary value of all outstanding This section reads similarly to § 309.1. on encumbrances in § 314.6 and loan principal. See proposed revisions However, a Recipient under part 307 streamlining the procedures for the to § 307.21(d). may redistribute Investment funds to release of the Federal Interest in We also remove the provision that another Eligible Recipient in the form of connection with EDA-assisted Property required Recipients, after termination of a grant or to a non-profit and private for- in § 314.10. Through this NPRM, EDA an RLF Grant, to seek EDA approval to profit entity in the form of a loan or proposes minor revisions to further retain and use for other economic other appropriate assistance under clarify terminology and its authority to development activities the RLF subpart B of part 307. release the Federal Interest 20 years Recipients’ share of RLF Income In both §§ 309.1 and 309.2, EDA after the date of the award of Investment generated by the RLF. By removing this proposes language to clarify EDA’s Assistance. provision, EDA is clarifying that practice of requiring the Eligible Specifically, for clarity and to Recipients do not need to seek EDA Recipient under the original award to conform to the proposed changes to the approval to use their share of funds comply with special award conditions RLF program, EDA adds a phrase to returned to them following termination and Subrecipient (in accordance with clarify that Personal Property includes of an RLF. See proposed revisions to the proposed defined term at § 300.3) to the RLF Capital Base, adding the phrase § 307.21(d). provide appropriate certifications of ‘‘, including the RLF Capital Base as compliance with relevant legal defined at § 307.8’’ to the definition of Part 308—Performance Incentives requirements. Accordingly, EDA Personal Property set out at § 314.1. In Part 308 sets out EDA’s performance proposes adding the sentence ‘‘EDA addition, for clarity and to avoid incentives for Recipients. When a may require the Eligible Recipient under repetitive language throughout part 314, Project is constructed under projected the original Investment award to agree we propose adding a definition of cost, EDA may allow the Recipient to to special award conditions and the Project Property. The 2011 NPRM use the excess funds to either increase Subrecipient to provide appropriate introduced the concept of Project the Investment Rate of the Project to the certifications to ensure the Property, but did not define it. maximum percentage allowable under Subrecipient’s compliance with legal Therefore, in the definitions section at § 301.4 for which the Project was requirements’’ to §§ 309.1(a) and § 314.1, this NPRM adds a definition of eligible at the time of the Investment 309.2(b). In addition, we propose adding Project Property to read as follows: award, or further improve the Project language to refer to the proposed ‘‘Project Property means all Property consistent with its purpose. The terms defined term Subrecipient in § 300.3 by that is acquired or improved, in whole for performance awards under EDA’s adding the phrase ‘‘, generally referred or in part, with Investment Assistance Public Works and Economic Adjustment to as a Subrecipient,’’ to the first and is required, as determined by EDA, Assistance programs are set out in sentence of § 309.1(a) and § 309.2(a)(1). for the successful completion and § 308.2 and the terms for performance operation of a Project and/or serves as Part 310—Special Impact Areas awards under EDA’s Planning program the economic justification of a Project. are set out under § 308.3. EDA does not Part 310 implements section 214 of As appropriate to specify the type of propose any changes to part 308. PWEDA (42 U.S.C. 3154), which Property to which they are referring, authorizes the Assistant Secretary to subparts B and C of this part refer to Part 309—Redistributions of Investment waive the CEDS requirements of section Assistance Project Property as ‘Project Real 302 of PWEDA (42 U.S.C. 3162) for a Property’ or ‘Project Personal Part 309 sets out EDA’s policies Project that will fulfill a ‘‘pressing Property’.’’ In addition, this NPRM regarding redistributing grant funds in need’’ of the Region or prominently proposes simplifying the definition of the form of subgrants, loans, or other address or alleviate Regional Real Property to clarify that, in the appropriate assistance. Information with underemployment or unemployment. context of part 314 and for the purposes respect to redistributions of Investment Section 310.1 outlines the process for of EDA Investment Assistance, Real funds for Planning, Public Works, and designating a Region as a Special Impact Property may include Property that is Training, Research, and Technical Area and § 310.2 defines what may be served by the construction of Project Assistance Investments is presented in considered a pressing need. EDA does infrastructure, where such infrastructure § 309.1 (‘‘Redistributions under parts not propose any changes to part 310. is not located on or under the Property. 303, 305, and 306’’). Specifically, Parts 311 and 312 [Reserved] Accordingly, we replace the word § 309.1(a) provides that a Recipient ‘‘improved’’ in the second sentence of under any program governed by parts Part 313—Community Trade the definition with the word ‘‘served’’ 303, 305, and 306 may directly expend Adjustment Assistance and remove the phrase ‘‘that are not the Investment Assistance, or, with Part 313 sets forth regulations to situated on or under the land’’. We also prior EDA approval, redistribute such implement the Trade Adjustment propose putting the exemplar list of funds in the form of a subgrant to Assistance for Communities program infrastructure projects ‘‘such as roads, another Eligible Recipient that qualifies authorized under chapter 4 of title II of sewer, and water lines’’ in parentheses for EDA Investment Assistance under the Trade Act of 1974, as amended (19 and removing the phrase ‘‘, but not the same program part as the Recipient. U.S.C. 2371 et seq.). EDA does not limited to’’ from the exemplar list All subgrants must be subject to the propose any revisions to part 313. because it is unnecessary. Removing same terms and conditions applicable to ‘‘but not limited to’’ is not substantive the Recipient under the original Part 314—Property and does not make the list exclusive. Investment award. Subsection 309.1(b) Part 314 sets forth the rules governing In § 314.2 (‘‘Federal Interest’’), we add stipulates that Investment Assistance Property acquired or improved, in a sentence to the beginning of paragraph received under parts 303 or 305 may not whole or in part, with EDA Investment (a) to set out the general expectation that be redistributed to a for-profit entity. Assistance. As proposed in the 2011 title to Project Property vests upon Section 309.2 (‘‘Redistributions under NPRM and finalized in the 2014 Final acquisition with the Recipient. In part 307’’) addresses redistributions Rule, EDA revised part 314 to make it addition, in the now second sentence of under part 307 for Economic easier to navigate and understand, § 314.2(a), we propose replacing the
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phrase ‘‘Property that is acquired or ‘‘Property’’ to incorporate the newly Assistance. In § 314.5(a), EDA proposes improved, in whole or in part, with defined term Project Property. Finally, adding two new sentences to explain Investment Assistance’’ with the newly in § 314.3(g), which addresses under EDA’s usual practice of relying on a defined term Project Property. For what circumstances EDA can approve certified appraisal prepared by a clarity, we split the sentence regarding an incidental use of Project Property, we licensed appraiser to determine the fair the purpose of the Federal Interest and add the phrase ‘‘undermine the market value of Project Property and how it is secured into two sentences and economic purpose for which the also provide that in certain replace the word ‘‘secures’’ in the now Investment was made’’ between extraordinary circumstances, and at the third sentence with the word ‘‘ensures’’ ‘‘otherwise’’ and ‘‘or adversely’’ to agency’s sole discretion, EDA may rely and also add the phrase ‘‘EDA Project clarify that as well as not adversely on an alternative method to determine requirements, including those related affecting the economic useful life of the the fair market value, such as the to’’ between ‘‘ensures compliance with’’ Property, an approved incidental use of amount of the award of Investment and ‘‘the purpose, scope, and use of a Project Property must not undermine Assistance or the amount paid by a Project’’. With respect to the method by the purpose of the Investment. transferee. EDA recognizes that in which Recipients must secure the In § 314.4 (‘‘Unauthorized Use of certain, very unusual circumstances, Federal Interest, we replace the phrase Property’’), we propose revising the title such as when Property is located in an ‘‘and is often reflected by’’ with the of the regulation to read ‘‘Unauthorized extremely remote location or, for phrase ‘‘The Recipient typically must Use of Project Property’’ to reflect the whatever reasons, there are no buyers secure the Federal Interest through’’. newly defined term ‘‘Project Property’’. for similar Property, it may be In § 314.2(b), we replace the phrase In addition, EDA proposes adding impossible or cost prohibitive to obtain ‘‘Property acquired or improved, in helpful paragraph headings to help the a certified appraisal and wishes to whole or in part, with Investment reader navigate the regulation, adding provide for this situation. Therefore, Assistance’’ with the newly defined the heading ‘‘Compensation of Federal EDA proposes adding the following term Project Property. In addition, to Share upon an Unauthorized Use of sentences to the paragraph: ‘‘EDA may flag that nondiscrimination Project Property’’ to § 314.4(a), rely on a current certified appraisal of requirements continue to apply even if ‘‘Additional Unauthorized Uses of the Project Property prepared by an the Federal Government is compensated Project Property’’ to § 314.4(b), and appraiser licensed in the State where for the Federal Share, we add the phrase ‘‘Recovery of the Federal Share’’ to the Project Property is located to ‘‘except as provided in § 314.10(e)(3) § 314.4(c). In § 314.4(a), this NPRM determine the fair market value. In regarding nondiscrimination proposes minor clarifying changes, extraordinary circumstances and at requirements’’ to the end of § 314.2(b). specifically replacing ‘‘EDA’s interest’’ EDA’s sole discretion, where EDA is In § 314.3 (‘‘Authorized Use of with ‘‘the Federal Interest’’, capitalizing unable to determine the current fair Property’’), we propose revising the title the word ‘‘Government’’ as used in the market value, EDA may use other of the regulation to read ‘‘Authorized term ‘‘Federal Government’’, replacing methods of determining the value of Use of Project Property’’ to reflect the ‘‘Property acquired or improved in Project Property, including the amount newly defined term Project Property. whole or in part with Investment of the award of Investment Assistance or We also break current paragraph (e), Assistance’’ with the newly defined the amount paid by a transferee.’’ In which addresses requirements for term ‘‘Project Property’’, and replacing a addition, EDA adds the word ‘‘Project’’ replacement Personal Property and Real reference to 15 CFR parts 14 or 24 with before ‘‘Property’’ in the first sentence of Property into two separate paragraphs 2 CFR part 200. We make similar the paragraph and the phrase ‘‘or other that address the requirements of the clarifying changes to § 314.4(b), valuation as determined by EDA’’ different types of Property. Accordingly, replacing ‘‘EDA’s interest’’ with ‘‘the between ‘‘fair market value’’ and ‘‘of the we move the sentence that addresses Federal Interest’’ and ‘‘Real Property or Property’’ in the final sentence of the replacement Real Property that is tangible personal property acquired or paragraph. currently the final sentence of § 314.3(e) improved with EDA Investment into new § 314.3(f) and re-number the Assistance’’ with the phrase ‘‘Project In § 314.6 (‘‘Encumbrances’’), this regulation accordingly, re-designating Real Property or tangible Project NPRM proposes revising paragraph (a) current § 314.3(f) as new § 314.3(g). In Personal Property’’. Finally, in to replace the phrase ‘‘Recipient-owned addition, EDA adds helpful paragraph § 314.4(c), in the first sentence we add Property acquired or improved in whole headings to help the reader better the word ‘‘Project’’ before two instances or improved in whole or in part with navigate the section and find of the word ‘‘Property’’, replace ‘‘its Investment Assistance’’ with the newly information more quickly. Accordingly, interest’’ with ‘‘the Federal Interest’’, proposed defined term ‘‘Project we add the heading ‘‘General’’ to and capitalize the word ‘‘Government’’ Property’’. In addition, in the exception § 314.3(a), ‘‘Project Property that is no in ‘‘Federal Government’’. In the final provision to the requirement that there longer needed for Project purposes’’ to sentence of the paragraph, EDA be no encumbrances on Project Property § 314.3(b), ‘‘Real Property for sale or proposes capitalizing ‘‘Government’’ in regarding encumbrances to secure a lease’’ to § 314.3(c), ‘‘Property transfers ‘‘Federal Government’’ and adding a grant or loan made by a governmental and Successor Recipients’’ to § 314.3(d), reference to the ongoing requirement body, EDA proposes adding the phrase ‘‘Replacement Personal Property’’ to that Project Property not be used in ‘‘so long as the Recipient discloses such § 314.3(e), ‘‘Replacement Real Property’’ violation of nondiscrimination an encumbrance in writing as part of its to § 314.3(f), and ‘‘Incidental use of requirements even after the application for Investment Assistance or Project Property’’ to § 314.3(g). compensation of the Federal Share by as soon as practicable after learning of In both § 314.3(a) and (b), we replace adding the phrase ‘‘, except for the the encumbrance’’ to reflect the the phrase ‘‘Property acquired or nondiscrimination requirements set requirement that the Recipient improved, in whole or in part, with forth in § 314.10(d)(3)’’ to the end of the expeditiously disclose any such Investment Assistance’’ with the newly paragraph. encumbrance to EDA. In § 314.6(b)(3) on defined term Project Property and in the Section 314.5 (‘‘Federal Share’’) pre-existing encumbrances, we add the first sentence of both § 314.3(d) and (g), addresses the portion of Project Property phrase ‘‘and disclosed to EDA’’ between we add the word ‘‘Project’’ before attributable to EDA’s Investment ‘‘in place’’ and ‘‘at the time’’ to
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underscore that the Recipient must In § 314.7 (‘‘Title’’), EDA proposes to read ‘‘public roadway or highway’’ disclose pre-existing encumbrances to adding language to paragraph (a) to flag and note that the exception in this EDA and add ‘‘, in its sole discretion,’’ that certain limited exceptions apply to provision is intended to apply to State to underscore that the approval of pre- the title requirement, make the or local government owned roadways or existing encumbrances is at EDA’s provision more readable, and refer highways. discretion. In addition, because pre- directly to the definition of Real In § 314.7(c)(5)(i), which sets out existing encumbrances pose the same Property set out in § 314.1. As such, EDA’s requirements when the purpose risks to Project Property as other types EDA adds the introductory phrase of a Project is to construct facilities to of encumbrances, EDA revises ‘‘Except in those limited circumstances serve Recipient or privately owned Real § 314.6(b)(3) to incorporate certain identified in paragraph (c) of this Property, we propose clarifying syntax requirements from the subparagraphs section’’ to the first sentence. In changes to revise the phrase ‘‘Real setting out requirements for addition, we relocate the temporal Property, including industrial or encumbrances proposed both proximate requirement of when title must be commercial parks, for sale or lease’’ to to and after Project approval: Namely, obtained to the beginning of the read ‘‘Project Real Property, including for EDA to approve a pre-existing sentence by adding ‘‘, at the time industrial or commercial parks, so that encumbrance, in addition to the Investment Assistance is awarded’’ the Recipient or Owner may sell or requirement that EDA determine that between ‘‘in paragraph (c) of this lease’’. In subparagraph (i)(A) of the the requirements of § 314.7(b) are met, section’’ and ‘‘the Recipient’’. For clarity provision, we replace the phrase EDA must determine that the terms and with respect to EDA’s requirements, we ‘‘required for such Project’’ with the conditions of the encumbrance are include a reference to the definition of clarifying phrase ‘‘intended for sale or satisfactory and that there is a Real Property in § 314.1 by adding the lease’’ and add a cross-reference to the reasonable expectation that the clause ‘‘, which, as noted in § 314.1 in appropriate title requirements by adding Recipient will not default on its the definition of ‘Real Property’ the phrase ‘‘in accordance with obligations. EDA renumbers these three includes land that is served by the paragraphs (C), (D), and (E) of this requirements as § 314.6(b)(1)(i), (ii), and construction of Project infrastructure section’’ to the end of the subparagraph. (iii), respectively. (such as roads, sewers, and water lines) In subparagraph (i)(B), EDA replaces With respect to § 314.6(b)(4) and (5), and where the infrastructure contributes ‘‘required for such Project’’ with ‘‘intended for lease’’, and in which set out the requirements for to the value of such land as a specific subparagraph (iii) we capitalize EDA’s approval of encumbrances purpose of the Project’’ to the first ‘‘Owner’’. proposed proximate to Project approval sentence of the paragraph. We also break the requirement that the Recipient Section 314.8 (‘‘Recorded Statement and encumbrances proposed after for Project Real Property’’) sets out maintain title at all times during the Project approval, respectively, while requirements for recording the Federal Estimated Useful Life of the Project into EDA does not propose any changes to Interest in Project Real Property. a separate sentence, which we place as the regulatory text, in the preamble to Throughout the provision we replace the second sentence of the paragraph. the 2011 NPRM and the 2015 Final three instances of ‘‘EDA’s interest’’ with This NPRM proposes replacing the Rule, EDA repeatedly referred to ‘‘the Federal Interest’’ and use the phrase ‘‘Real Property required for a revisions to § 314.6 to clarify the defined term ‘‘Project Real Property’’ as project’’ with the proposed defined term requirements for EDA to subordinate its appropriate, using the term in the ‘‘Project Real Property’’ in both the first interest in Project Property. However, heading of the regulation and replacing and third sentences of § 314.7(a). the regulatory text sets out the ‘‘the Property acquired or improved in requirements for EDA to approve any Throughout paragraph (c) of § 314.7, whole or in part with the EDA Invest type of encumbrance on Project which sets out the exceptions to EDA’s Assistance’’ in paragraph (a), ‘‘Real Property, regardless of the priority of the title requirement, we replace the phrase Property’’ in paragraph (b), and ‘‘Project Federal Interest and whether EDA ‘‘the Real Property required for a Property’’ in paragraph (d). agrees to subordinate or not, and Project’’ with ‘‘Project Real Property’’. In § 314.9 (‘‘Recorded statement for through this preamble, EDA confirms EDA proposes adding the clause ‘‘at the Personal Property’’), EDA revises the that this read is correct. EDA must time Investment Assistance is awarded provision to clarify that the recorded undertake the analyses required under and at all times during the Estimated statement, which is generally a Uniform § 314.6(b) for encumbrances proposed Useful Life of the Project’’ to the Commercial Code Financing Statement on Project Property regardless of introductory sentence at § 314.7(c), add (‘‘Form UCC–1’’), provides notice of the whether EDA’s position in such ‘‘Project’’ before ‘‘Real Property’’ twice Federal Interest in Project Personal Property changes. in § 314.7(c)(1), and capitalize Property, but does not create a lien on In addition, we propose minor style ‘‘Government’’ in ‘‘Federal the Property by inserting the phrase changes to § 314.6(b)(4)(v)(B) and Government’’ in § 314.7(c)(1)(i). In ‘‘provide notice of the Federal Interest (5)(v)(B) to add the phrase ‘‘A Recipient § 314.7(c)(4), which clarifies the in all Project Personal Property by that is a’’ to the beginning of the exception for the title requirement when executing’’ between ‘‘the Recipient subparagraph to maintain the parallel a Project includes construction on a shall’’ and ‘‘a Uniform Commercial nature of the list. In addition, in government-owned roads, EDA Code Financing Statement’’ in the first § 314.5(c), we replace the phrase proposes clarifying changes to replace sentence of the regulation. In addition, ‘‘Recipient-owned Property’’ with the phrase ‘‘public highway’’ with the we use the term ‘‘Project Personal ‘‘Project Property’’. As specified in the more descriptive ‘‘State or local Property’’ appropriately throughout the government-wide grant regulations set government owned roadway or provision, including in the title to the out at 2 CFR part 200 and noted in the highway’’ in the heading, first sentence regulation, inserting ‘‘Project’’ before the proposed revisions to § 314.2(a), Project of § 314.7(c)(4), and first clause of phrase ‘‘Personal Property, acceptable in Property generally vests upon § 314.7(c)(4)(ii)(B). To avoid excessive form and substance to EDA’’ in the first acquisition in the Recipient, and so the wordiness, we maintain the phrase sentence of the regulation, and replacing adjective ‘‘Recipient-owned’’ is ‘‘public highway’’ where it exists in the ‘‘Personal Property acquired or unnecessary. remainder of the provision, but revise it improved as part of the Project’’ with
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‘‘all Project Personal Property’’ in the ‘‘obtain’’ and adding the phrase ‘‘in the award of Investment Assistance’’. In second sentence of the regulation, and Project Property’’ at the end of the addition, to clarify the determinations replace ‘‘EDA’s interest’’ with ‘‘the sentence following the phrase ‘‘of the that EDA will make in this situation, Federal Interest’’ in the first sentence to Federal Interest’’. EDA adds the following concluding the regulation. In paragraph (b), which sets out EDA’s phrase to the paragraph ‘‘if EDA Section 314.10 (‘‘Release of EDA’s procedures for releasing the Federal determines: (1) The Recipient has made Property Interest’’) sets out EDA’s Interest after the expiration of the a good faith effort to fulfill all terms and procedures for releasing the agency’s Estimated Useful Life, we revise the conditions of the of the award of interest in Project Property. This NPRM paragraph heading to read ‘‘Release of Investment Assistance; and (2) The proposes replacing the term ‘‘EDA’s the Federal Interest’’ instead of ‘‘Release economic development benefits as set Property Interest’’ with ‘‘the Federal of Property’’ to more accurately reflect out in the award of Investment Interest’’ in the titles of both subpart D the content of the provision, correct a Assistance have been achieved.’’ As and § 314.10 and throughout § 314.10 typo in the second sentence by adding with paragraph (b), EDA has added a for clarity and consistency. This change the word ‘‘the’’ between ‘‘in writing by’’ sentence to the end of this paragraph does not implicate any substantive and ‘‘Recipient’’, and add a sentence to that provides a necessary cross reference change to the Federal Government’s the end of the paragraph that provides to § 314.10(e), which sets out the undivided equitable reversionary a helpful cross reference to § 314.10(e), limitations and covenants of use that are interest in award property, but is which sets out the limitations and applicable to any release of the Federal covenants of use that are applicable to intended for consistency throughout Interest. any release of the Federal Interest. Finally, in paragraph (e), EDA makes these regulations and with 2 CFR part In paragraph (c), which sets out the needed corrections and clarifications to 200. In addition, in § 314.10(a), EDA EDA’s procedures for releasing the limitations of use and required replaces the phrase ‘‘Property acquired Federal Interest before the expiration of covenants applicable to a release of the or improved with Investment the Estimated Useful Life, which release Federal Interest. When EDA releases its Assistance’’ with ‘‘Project Property’’ for requires compensation of the Federal interest at the expiration of the consistency with the proposed defined Interest, we correct a typo in the Estimated Useful Life under § 314.10(b) term at § 314.1 and its usage throughout paragraph heading by adding the word or releases its interest before the part 314. In addition, EDA proposes ‘‘the’’ between ‘‘prior to’’ and expiration of the Estimated Useful Life removing the portions of paragraph (a) ‘‘expiration’’. In addition, as more fully but after at least 20 years have elapsed that provide background on EDA’s explained in the description of revisions since the award of Investment historical practice for establishing the to paragraph (e) below, we add a clause Assistance under § 314.10(d), two use Estimated Useful Life of specific to clarify that when EDA releases the limitations on Project Property survive Projects. It is accurate that since 1999, Federal Interest after receiving the release: (1) Such Property may not EDA has typically established useful compensation for such interest, EDA has be used for explicitly religious lives of between 15 and 20 years, no further interest in the property, purposes; and (2) such Property may not depending on the nature of the asset. As except for specific nondiscrimination be used in violation of the EDA noted in the 2011 NPRM, the requirements. Accordingly, we add a nondiscrimination requirements set out Economic Development Administration concluding clause to the final sentence in § 302.20. However, in the above two and Appalachian Regional Development of the paragraph to read ‘‘and will have scenarios, if compensation is made to Reform Act of 1998 (Pub. L. 105–393) no further interest in the ownership, EDA of the Federal Interest at the time added section 601(d) to PWEDA (42 use, or Disposition of the Property, of the release or anytime thereafter, the U.S.C. 3211(d)) to allow EDA to release except for the nondiscrimination requirement that Project Property not be its interest in Real or Personal Property requirements set forth in paragraph used for explicitly religious purposes after 20 years. This amendment was (e)(3) of this section.’’ will be extinguished. Similarly, when designed to provide EDA with Paragraph (d) of § 314.10 sets out EDA releases the Federal Interest before additional flexibilities to release its EDA’s procedures for releasing the the expiration of the Estimated Useful interest in Project Property, particularly Federal Interest before the expiration of Life and upon compensation of the as some Projects implicated 40-year the Estimated Useful Life, but at least 20 Federal Interest, the requirement that Estimated Useful Lives, not to mandate years after the award of Investment Project Property not be used for a minimum 20-year useful life for all Assistance, as authorized under section explicitly religious purposes no longer Project Property. Although these 601(d)(2) of PWEDA. This authority is remains. Note that while § 314.10 regulatory provisions provided useful generally applicable when the Estimated currently makes references to background, they were not necessary for Useful Life is long (i.e., 30 or 40 years) ‘‘inherently religious purposes,’’ EDA is the regulation and we believe and when the Recipient has complied proposing changing these references to maintaining this history in the preamble with all terms of the award of ‘‘explicitly religious purposes’’ to be is sufficient. Accordingly, we remove Investment Assistance and the consistent with recent rulemakings by the concluding clause of the second economic development benefits of the nine other Federal agencies sentence and the third sentence of award have been achieved. To clarify implementing Executive Order 13559. paragraph (a) and combine the first and the intent of this paragraph, EDA revises See, e.g., 28 CFR 38.5(a) (Department of second sentence of the paragraph to the heading to read ‘‘Release of the Justice); 81 FR 19358–59. The term read ‘‘As provided in § 314.2 of this Federal Interest before the expiration of ‘‘explicitly religious activities’’ clarifies chapter, the Federal Interest in Project the Estimated Useful Life, but 20 years that the prohibition is against external, Property extends for the duration of the after the award of Investment observable activities, and not directed Estimated Useful Life of the Project, Assistance’’. In addition, we make against the religious motivation an which is determined by EDA at the time additional clarifying changes entity may have in providing services. of Investment award.’’ We also simplify throughout the paragraph. In the first Through this NPRM, EDA proposes the final sentence in paragraph (a), sentence of the paragraph, we replace revisions to subparagraphs (e)(2) and (3) replacing the phrase ‘‘govern the the phrase ‘‘that exceeds 20 years’’ with to make the points above clear. manner of obtaining’’ with the word ‘‘, but where 20 years have elapsed since Specifically, we add a final sentence to
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paragraph (e)(2) clarifying that when where (e)(3) specifies the requirements Congressional Review Act requesting release of the Federal for avoiding any discriminatory use of Interest, the Recipient must disclose the Project Property, we remove two This NPRM is not major under the future intended use of the Real Property. instances of the phrase ‘‘for inherently Congressional Review Act (5 U.S.C. 801 New subparagraph (e)(2)(i) clarifies that religious activities prohibited by et seq.). a Recipient not intending to use the Real applicable Federal law and’’ from the Executive Order No. 13132 Property or tangible Personal Property first and second sentences. EDA for explicitly religious activities will be emphasizes that the differing treatments Executive Order 13132 requires required to execute and record a of the religious use covenant and non- agencies to develop an accountable covenant prohibiting use of the Real discrimination covenant, which has process to ensure ‘‘meaningful and Property for explicitly religious been part of EDA’s regulatory timely input by State and local officials activities. New subparagraph (e)(2)(ii) framework for a number of years, is in in the development of regulatory clarifies the requirements for a our view justified by the fact that policies that have federalism Recipient that intends or foresees the different legal authorities control the implications.’’ ‘‘Policies that have use of Real Property or tangible Personal agency’s obligations in each situation. federalism implications’’ is defined in Property for explicitly religious Part 315—Trade Adjustment Assistance Executive Order 13132 to include activities. In this case, EDA may require for Firms regulations that have ‘‘substantial direct the Recipient to compensate the agency effects on the States, on the relationship Part 315 sets forth regulations to for the Federal Interest to obtain a between the national government and implement the Trade Adjustment release and resulting waiver of the the States, or on the distribution of Assistance for Firms program ‘‘explicitly religious activities’’ power and responsibilities among the authorized under chapters 3 and 5 of prohibition, and recommends that any various levels of government.’’ It has such Recipient contact EDA well in title II of the Trade Act of 1974, as amended (19 U.S.C. 2341 et seq.). EDA been determined that this proposed rule advance of requesting a release. It is does not contain policies that have important to recognize that the structure does not propose any revisions to part 315. federalism implications. now proposed—payment of the Federal Interest excusing the Recipient from Classification Paperwork Reduction Act having to comply with the religious use Prior notice and opportunity for The Paperwork Reduction Act of 1995 prohibition but not excusing continued public comment are not required for (44 U.S.C. 3501 et seq.) (‘‘PRA’’) compliance with the non-discrimination rules concerning public property, loans, requires that a Federal agency consider prohibition—was actually in place grants, benefits, and contracts (5 U.S.C. the impact of paperwork and other before EDA’s most recent Final Rule 553(a)(2)). Because prior notice and an information collection burdens imposed became effective on January 20, 2015. opportunity for public comment are not on the public and, under the provisions As became clear in the past year when required pursuant to 5 U.S.C. 553, or of PRA section 3507(d), obtain approval the agency was confronted with several any other law, the analytical from OMB for each collection of situations involving the religious use requirements of the Regulatory prohibition, the January 20, 2015 Final information it conducts, sponsors, or Flexibility Act (5 U.S.C. 601 et seq.) are requires through regulations. Rule appears to have inadvertently inapplicable. Therefore, a regulatory amended certain language in § 314.10 Notwithstanding any other provision of flexibility analysis has not been law, no person is required to respond to, that created ambiguity and unintended prepared. consequences that necessitates the nor shall any person be subject to a proposed changes. Subparagraph (e)(3) Executive Order No. 12866 and No. penalty for failure to comply with a is revised so that it specifies the 13563 collection of information subject to the requirement that Real Property or This proposed rule was drafted in PRA unless that collection displays a tangible Personal Property not be used accordance with Executive Orders currently valid OMB Control Number. in violation of the nondiscrimination 12866 and 13563. The Office of The following table provides a requirements of § 302.20. Therefore, we Management and Budget (OMB) has complete list of the collections of add the clause ‘‘, including a release determined that this proposed rule is information (and corresponding OMB upon a Recipient’s compensation for the significant for purposes of Executive Control Numbers) set forth in this Federal Share’’ between ‘‘under this Order 12866 and Executive Order proposed rule. These collections of section’’ and ‘‘a Recipient must’’ in the 13563. Accordingly, the rule has information are necessary for the proper first sentence of (e)(3). In addition, undergone interagency review. performance and functions of EDA.
Part or section of this proposed rule Nature of request Form/title/OMB control number
307.14(a) ...... All RLF Recipients must submit reports to EDA in a format designated by ED–209, RLF Report (0610– EDA. 0095). 307.14(b) ...... All Recipients must certify as part of the report that the RLF is operating in ED–209, RLF Report (0610– accordance with the RLF Plan and that the information provided is com- 0095). plete and accurate.
List of Subjects 13 CFR Part 301 administration, Grant programs, Investment rates. 13 CFR Part 300 Applicant and application Distressed region, Financial requirements, Economic distress levels, 13 CFR Part 302 assistance, Headquarters, Regional Eligibility requirements, Grant Civil rights, Conflicts-of-interest, offices. Environmental review, Federal policy
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and procedures, Fees, conditions of the Investment Assistance, significant Regional or national scope Intergovernmental review, Post- each Co-Recipient is jointly and under parts 306 or 307 of this chapter. approval requirements, Pre-approval severally liable for fulfilling the terms of See §§ 306.3(b), 306.6(b), and 307.5(b) of requirements, Project administration, the Investment Assistance. this chapter. Reporting and audit requirements. * * * * * ■ 5. Revise § 301.5 to read as follows: 13 CFR Part 303 In-Kind Contribution(s) means non- § 301.5 Matching share requirements. cash contributions, which may include Award and application requirements, contributions of space, equipment, The required Matching Share of a Comprehensive economic development services and assumptions of debt that Project’s eligible costs may consist of strategy, Planning, Short-term planning are fairly evaluated by EDA and that cash or In-Kind Contributions. In investments, State plans. satisfy applicable Federal Uniform addition, the Eligible Applicant must provide documentation to EDA 13 CFR Part 304 Administrative Requirements and cost principles as set out in 2 CFR part 200. demonstrating that the Matching Share District modification and termination, is committed to the Project, will be Economic development district, * * * * * available as needed and is not or will Organizational requirements, Project means the proposed or not be conditioned or encumbered in Performance evaluations. authorized activity (or activities) the any way that would preclude its use purpose of which fulfills EDA’s mission 13 CFR Part 305 consistent with the requirements of the and program requirements as set forth in Investment Assistance. EDA shall Award and application requirements, PWEDA or Stevenson-Wydler and this determine at its sole discretion whether Economic development, Public works, chapter and which may be funded in the Matching Share documentation Requirements for approved projects. whole or in part by EDA Investment adequately addresses the requirements Assistance. 13 CFR Part 307 of this section. * * * * * ■ 6. Revise paragraph (a) of § 301.7 to Award and application requirements, Recipient means an entity receiving read as follows: Economic adjustment assistance, EDA Investment Assistance, including Income, Liquidation, Merger, Revolving any EDA-approved successor to the § 301.7 Investment Assistance application. loan fund, Pre-loan requirements, entity. (a) For all EDA Investment Assistance Record and reporting requirements, * * * * * programs, including the Public Works, Sales and securitizations, Termination. Stevenson-Wydler, for purposes of Economic Adjustment Assistance, 13 CFR Part 309 EDA, means the Stevenson-Wydler Planning, Local Technical Assistance, Technology Innovation Act of 1980, as Research and National Technical Redistributions of investment amended (15 U.S.C. 3701 et seq.). Assistance, and University Center assistance, Subgrants, Subrecipients. Subrecipient means an Eligible programs, EDA will publish an FFO that 13 CFR Part 314 Recipient that receives a redistribution specifies application submission requirements and evaluation procedures Authorized use, Federal interest, of Investment Assistance in the form of a subgrant, under part 309 of this and criteria. Each FFO will be published Federal share, Property, Property on the EDA Web site and at http:// interest, Release, Title. chapter, from another Eligible Recipient to carry out part of a Federal program. www.grants.gov. All forms required for Regulatory Text * * * * * EDA Investment Assistance may be For the reasons discussed above, EDA obtained electronically from http:// proposes to amend 13 CFR, chapter III PART 301—ELIGIBILITY, INVESTMENT www.grants.gov or from the appropriate as follows: RATE AND APPLICATION regional office. REQUIREMENTS * * * * * PART 300—GENERAL INFORMATION ■ 7. Revise § 301.8 to read as follows: ■ 3. The authority section for part 301 ■ 1. Revise the authority citation of part continues to read as follows: § 301.8 Application evaluation criteria. 300 to read as follows: Authority: 42 U.S.C. 3121; 42 U.S.C. 3141– EDA will screen all applications for Authority: 42 U.S.C. 3121; 42 U.S.C. 3122; 3147; 42 U.S.C. 3149; 42 U.S.C. 3161; 42 the feasibility of the budget presented 42 U.S.C. 3211; 15 U.S.C. 3701; Department U.S.C. 3175; 42 U.S.C. 3192; 42 U.S.C. 3194; and conformance with EDA’s statutory of Commerce Organization Order 10–4. 42 U.S.C. 3211; 42 U.S.C. 3233; Department and regulatory requirements. EDA will ■ 2. Amend § 300.3 by: of Commerce Delegation Order 10–4. assess the economic development needs ■ a. Adding a definition for Co- ■ 4. Revise paragraph (b) of § 301.2 to of the affected Region in which the Recipient in alphabetical order; read as follows: proposed Project will be located (or will ■ service), as well as the capability of the b. Revising the definitions of In-Kind § 301.2 Applicant eligibility. Contribution(s), Project, and Recipient; Eligible Applicant to implement the and * * * * * proposed Project. EDA will also review ■ c. Adding definitions for Stevenson- (b) An Eligible Applicant that is a applications for conformance with Wydler and Sub-Recipient in non-profit organization must include in program-specific evaluation criteria set alphabetical order. its application for Investment out in the applicable FFO. The revisions and additions read as Assistance a resolution passed by (or a ■ 8. Revise the introductory text of follows: letter signed by) an authorized paragraph (a) to § 301.11 to read as representative of a general purpose follows: § 300.3 Definitions. political subdivision of a State, * * * * * acknowledging that it is acting in § 301.11 Infrastructure. Co-Recipient means one of multiple cooperation with officials of such (a) EDA will fund both construction Recipients awarded Investment political subdivision. EDA, at its sole and non-construction infrastructure Assistance under a single award. Unless discretion, may waive this cooperation necessary to meet a Region’s strategic otherwise provided in the terms and requirement for certain Projects of a economic development goals and needs,
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which in turn results in job creation. under Stevenson-Wydler, in accordance (3) * * * This includes infrastructure used to with the following authorities: (ii) The Planning Organization must develop basic economic development * * * * * submit a new or revised CEDS to EDA assets as described in §§ 305.1 and 305.2 (2) 42 U.S.C. 3123 (proscribing at least every five years, unless EDA or of this chapter (e.g., roads, sewers, and discrimination on the basis of sex in the Planning Organization determines water lines), as well as infrastructure Investment Assistance provided under that a new or revised CEDS is required that supports innovation and PWEDA), 42 U.S.C. 6709 (proscribing earlier due to changed circumstances. In entrepreneurship. The following are discrimination on the basis of sex under connection with the submission of a examples of innovation and the Local Public Works Program), Title new or revised CEDS, the Planning entrepreneurship-related infrastructure IX of the Education Amendments of Organization must obtain renewed that support job creation: 1972, as amended (20 U.S.C. 1681 et commitments from participating * * * * * seq.) (proscribing discrimination on the counties or other areas within the basis of sex in any education program or District to support the economic PART 302—GENERAL TERMS AND activity receiving Federal financial development activities of the District. CONDITIONS FOR INVESTMENT assistance, whether or not such program * * * * * ASSISTANCE or activity is offered or sponsored by an ■ 15. Revise paragraph (c)(1) of § 303.7 educational institution), and the to read as follows: ■ 9. Revise the authority citation of part Department’s implementing regulations 302 to read as follows: found at 15 CFR part 8a; § 303.7 Requirements for Comprehensive Economic Development Strategies. Authority: 19 U.S.C. 2341 et seq.; 42 U.S.C. * * * * * 3150; 42 U.S.C. 3152; 42 U.S.C. 3153; 42 (d) All Recipients of Investment * * * * * U.S.C. 3192; 42 U.S.C. 3193; 42 U.S.C. 3194; Assistance under PWEDA and (c) * * * 42 U.S.C. 3211; 42 U.S.C. 3212; 42 U.S.C. Stevenson-Wydler, all Other Parties, (1) In determining the acceptability of 3216; 42 U.S.C. 3218; 42 U.S.C. 3220; 42 and all entities receiving Adjustment a CEDS prepared independently of EDA U.S.C. 5141; 15 U.S.C. 3701; Department of Investment Assistance or oversight for Commerce Delegation Order 10–4. Assistance under the Trade Act or any other type of assistance under Projects under parts 305 and 307 of this ■ 10. Revise § 302.5 to read as follows: Stevenson-Wydler must submit to EDA chapter, EDA may in its discretion determine that the CEDS is acceptable § 302.5 Relocation assistance and land written assurances that they will acquisition policies. comply with applicable laws, EDA so long as it includes all of the elements regulations, Department regulations, listed in paragraph (b) of this section. In Recipients of EDA Investment and such other requirements as may be certain circumstances, EDA may accept Assistance or any other types of applicable, prohibiting discrimination. a non-EDA funded CEDS that does not assistance under PWEDA, the Trade * * * * * contain all the elements listed in Act, and Stevenson-Wydler (States and paragraph (b) of this section. In doing political subdivisions of States and non- PART 303—PLANNING INVESTMENTS so, EDA shall consider the profit organizations, as applicable) are AND COMPREHENSIVE ECONOMIC circumstances surrounding the subject to the Uniform Relocation DEVELOPMENT STRATEGIES application for Investment Assistance, Assistance and Real Property including emergencies or natural Acquisition Policies Act of 1970, as ■ 13. The authority citation for part 303 disasters and the fulfillment of the amended (Pub. L. 91–646; 42 U.S.C. continues to read as follows: requirements of section 302 of PWEDA. 4601 et seq.). See 15 CFR part 11 and Authority: 42 U.S.C. 3143; 42 U.S.C. 3162; * * * * * 49 CFR part 24 for specific compliance 42 U.S.C. 3174; 42 U.S.C. 3211; Department requirements. of Commerce Organization Order 10–4. PART 304—ECONOMIC ■ 11. Revise § 302.6 to read as follows: ■ 14. Revise paragraphs (b)(1) and DEVELOPMENT DISTRICTS (b)(3)(ii) of § 303.6 to read as follows: § 302.6 Additional requirements; Federal ■ 16. The authority citation for part 304 policies and procedures. § 303.6 Partnership Planning and the EDA- continues to read as follows: funded CEDS process. Recipients are subject to all Federal Authority: 42 U.S.C. 3122; 42 U.S.C. 3171; laws and to Federal, Department, and * * * * * 42 U.S.C. 3172; 42 U.S.C. 3196; Department EDA policies, regulations, and (b) * * * of Commerce Organization Order 10–4. procedures applicable to Federal (1) CEDS Strategy Committee. The Planning Organization must appoint a ■ 17. Revise paragraph (c)(2) of § 304.2 financial assistance awards, including 2 to read as follows: CFR part 200, Uniform Administrative Strategy Committee. The Strategy Requirements, Cost Principles, and Committee must represent the main § 304.2 District Organizations: Formation, Audit Requirements for Federal Awards. economic interests of the Region, which organizational requirements and ■ 12. Revise the introductory text to may include Indian tribes, the private operations. paragraph (a) and paragraphs (a)(2) and sector, State and other public officials, * * * * * (d) of § 302.20 to read as follows: community leaders, private individuals, (c) * * * representatives of workforce (2) The District Organization must § 302.20 Civil rights. development boards, institutions of demonstrate that its governing body is (a) Discrimination is prohibited by a higher education, minority and labor broadly representative of the principal Recipient or Other Party (as defined in groups, and others who can contribute economic interests of the Region, which paragraph (b) of this section) with to and benefit from improved economic may include the private sector, public respect to a Project receiving Investment development in the relevant Region. In officials, community leaders, Assistance under PWEDA or Stevenson- addition, the Strategy Committee must representatives of workforce Wydler or by an entity receiving demonstrate the capacity to undertake a development boards, institutions of Adjustment Assistance (as defined in collaborative and effective planning higher education, minority and labor § 315.2 of this chapter) under the Trade process. groups, and private individuals. In Act or any other type of assistance * * * * * addition, the governing body must
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demonstrate the capacity to implement (1) * * * administrative costs associated with the the EDA-approved CEDS. (2) The Compliance Supplement, RLF’s operations, the RLF Capital Base * * * * * which is appendix XI to 2 CFR part 200 is maintained in two forms at all times: and is available on the OMB Web site As RLF Cash Available for Lending and PART 305—PUBLIC WORKS AND at https://www.whitehouse.gov/omb/ as outstanding loan principal. ECONOMIC DEVELOPMENT circulars_default. RLF Cash Available for Lending DISTRICTS ■ 23. Amend § 307.8 as follows: means the portion of the RLF Capital ■ a. Add definitions for Allowable Cash Base that is held in cash and available ■ 17. The authority citation for part 305 Percentage and Disbursement Phase in to make loans. continues to read as follows: alphabetical order; RLF Income means interest earned on Authority: 42 U.S.C. 3211; 42 U.S.C. 3141; ■ b. Revise the definitions of outstanding loan principal and RLF Department of Commerce Organization Order Recapitalization Grants and Reporting accounts holding RLF funds, all fees 10–4. Period; and charges received by the RLF, and ■ 18. Revise paragraph (b) of § 305.6 to ■ c. Add a definition for Risk Analysis other income generated from RLF read as follows: System in alphabetical order; operations. An RLF Recipient may use ■ d. Remove the definition of RLF RLF Income only to capitalize the RLF § 305.6 Allowable methods for Capital; procurement of construction services. for financing activities and to cover ■ e. Add definitions for RLF Capital eligible and reasonable costs necessary * * * * * Base and RLF Cash Available for to administer the RLF, unless otherwise (b) For all procurement methods, the Lending in alphabetical order; provided for in the Grant agreement or Recipient must comply with the ■ f. Revise the definition of RLF Income; approved in writing by EDA. RLF procedures and standards set forth in 2 and Income excludes repayments of CFR part 200. ■ g. Add definitions for RLF Recipient principal and any interest remitted to ■ 19. Revise paragraph (c) of § 305.8 to and Voluntarily Contributed Capital in the U.S. Treasury pursuant to generally read as follows: alphabetical order. accepted accounting principles (GAAP) § 305.8 Recipient-furnished equipment and The additions and revisions read as and § 307.20(h). materials. follows: RLF Recipient means the Eligible * * * * * § 307.8 Definitions. Recipient that receives an RLF Grant to manage an RLF in accordance with an (c) Acquisition of Recipient-furnished * * * * * RLF Plan, Prudent Lending Practices, equipment or materials under this Allowable Cash Percentage means the the terms and conditions of the RLF section also is subject to the average percentage of the RLF Capital Grant, and all applicable policies, laws, requirements of 2 CFR part 200. Base maintained as RLF Cash Available and regulations. for Lending by RLF Recipients in each PART 307—ECONOMIC ADJUSTMENT * * * * * ASSISTANCE INVESTMENTS EDA regional office’s portfolio of RLF Grants over the previous year. Voluntary Contributed Capital means ■ 20. The authority citation of part 307 * * * * * an RLF Recipient’s voluntary infusion of continues to read as follows: Disbursement Phase means the period additional non-EDA funds into the RLF Capital Base that is separate from and Authority: 42 U.S.C. 3211; 42 U.S.C. 3149; of loan activity where Grant funds 42 U.S.C. 3161; 42 U.S.C. 3162; 42 U.S.C. awarded have not been fully disbursed exceeds any Local Share that is required 3233; Department of Commerce Organization to the RLF Recipient. as a condition of the RLF Grant. Order 10–4. Voluntary Contributed Capital is an * * * * * irrevocable addition to the RLF Capital ■ 21. Revise § 307.6 to read as follows: Recapitalization Grants are Base and must be administered in Investments of additional Grant funds to § 307.6 Revolving Loan Funds established accordance with EDA regulations and for lending. increase the RLF Capital Base. policies. Reporting Period, for purposes of this ■ 24. In § 307.11, revise the section Economic Adjustment Assistance subpart B only, is based on the RLF heading and paragraphs (a), (c), (d), and Grants to capitalize or recapitalize RLFs Recipient’s fiscal year end and is on an (f)(2) and add paragraphs (g) and (h) to most commonly fund business lending, annual or semi-annual basis as read as follows: but also may fund public infrastructure determined by EDA. or other authorized lending activities. § 307.11 Pre-disbursement requirements The requirements in this subpart B * * * * * Risk Analysis System refers to a set of and disbursement of funds to Revolving apply to EDA-funded RLFs. Special Loan Funds. award conditions may contain metrics defined by EDA to evaluate a appropriate modifications of these Recipient’s administration of its RLF (a) Pre-disbursement requirements. (1) requirements. Grant and that may include but is not Within 60 calendar days before the ■ 22. Revise the introductory text of limited to capital, assets, management, initial disbursement of EDA funds, the paragraph (b) and paragraph (b)(2) of earnings, liquidity, strategic results, and RLF Recipient must provide the § 307.7 to read as follows: financial controls. following in a form acceptable to EDA: RLF Capital Base means the total (i) A certification from a qualified § 307.7 Revolving Loan Fund award value of RLF Grant assets administered independent accountant who preferably requirements. by the RLF Recipient. It is equal to the has audited the RLF Recipient’s * * * * * amount of Grant funds used to accounting system in accordance with (b) RLF Grants shall comply with the capitalize (and recapitalize, if the audit requirements set out as requirements set forth in this part, as applicable), the RLF, plus Local Share, subpart F to 2 CFR part 200 that such well as relevant provisions of parts 300 plus RLF Income, plus Voluntarily system is adequate to identify, through 303, 305, and 314 of this Contributed Capital, less any loan losses safeguard, and account for the entire chapter and in the following and disallowances. Except as used to RLF Capital Base, outstanding RLF publications: pay for eligible and reasonable loans, and other RLF operations.
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(ii) The RLF Recipient’s certification otherwise specified in the terms and (iii) The current and planned use and that standard RLF loan documents conditions of an RLF Grant. the anticipated benefits of the RLF will reasonably necessary or advisable for (d) Interest-bearing account. All Grant remain consistent with the current lending are in place and a certification funds disbursed by EDA to the RLF CEDS and the RLF Plan; and from the RLF Recipient’s legal counsel Recipient for loan obligations incurred (iv) The proposal of a revised time that the loan documents are adequate but not yet disbursed to an eligible RLF schedule is reasonable. An extension and comply with the terms and borrower must be deposited and held in request must also provide an conditions of the RLF Grant, RLF Plan, an interest-bearing account by the explanation as to why no further delays and applicable State and local law. The Recipient until an RLF loan is made to are anticipated. standard loan documents must include, a borrower. (2) EDA is under no obligation to at a minimum, the following: * * * * * grant a time extension. In the event an (A) Loan application; (f) * * * extension is denied, EDA may de- (B) Loan agreement; (2) When an RLF has a combination obligate all or part of the unused Grant (C) Board of directors’ meeting of In-Kind Contributions, which must be funds and terminate the Grant. ■ minutes approving the RLF loan; specifically authorized in the terms and 25. In § 307.12, revise the section (D) Promissory note; conditions of the RLF Grant and may be heading, paragraphs (a) and (b), and the (E) Security agreement(s); used to provide technical assistance to paragraph heading and introductory text (F) Deed of trust or mortgage (as borrowers or for eligible RLF of paragraph (c), and add paragraph (d) applicable); administrative costs, and cash Local to read as follows: (G) Agreement of prior lien holder (as Share, the cash Local Share and the § 307.12 Revolving Loan Fund Income applicable); and Grant funds will be disbursed requirements during the Revolving Phase; (H) Evidence demonstrating that proportionately as needed for lending payments on defaulted and written off credit is not otherwise available on activities, provided that the last 20 Revolving Loan Fund loans; Voluntarily terms and conditions that permit the percent of the Grant funds may not be Contributed Capital. completion or successful operation of disbursed until all cash Local Share has (a) During the Revolving Phase, RLF the activity to be financed. been expended. The full amount of the Income must be placed into the RLF (iii) Evidence of fidelity bond cash Local Share shall remain for use in Capital Base for the purpose of making coverage for persons authorized to the RLF. loans or paying for eligible and handle funds under the RLF Grant (g) Loan closing and disbursement reasonable administrative costs award in an amount sufficient to protect schedule. (1) RLF loan activity must be associated with the RLF’s operations. the interests of EDA and the RLF. At a sufficient to draw down Grant funds in RLF Income may fund administrative minimum, the amount of coverage shall accordance with the schedule costs, provided: be the maximum loan amount allowed prescribed in the award conditions for (1) Such RLF Income is earned and for in the EDA-approved RLF Plan. loan closings and disbursements to the administrative costs are accrued in (2) The RLF Recipient is required to eligible RLF borrowers. The schedule the same fiscal year of the RLF maintain the adequacy of the RLF’s usually requires that the RLF Recipient Recipient; accounting system and maintain and lend the entire amount of the RLF Grant (2) RLF Income earned, but not used update standard RLF loan documents at within three years of the Grant award. for administrative costs during the same all times during the duration of the (2) If an RLF Recipient fails to meet fiscal year of the RLF Recipient is made RLF’s operation. In addition, the RLF the prescribed lending schedule, EDA available for lending activities; (3) RLF Income shall not be recipient must maintain sufficient may de-obligate the non-disbursed withdrawn from the RLF Capital Base in fidelity bond coverage as described in balance of the RLF Grant. EDA may a subsequent fiscal year for any purpose this subsection for the duration of the allow exceptions where: other than lending without the prior RLF’s operation. The RLF Recipient (i) Closed Loans approved prior to the written consent of EDA; and shall maintain records and schedule deadline will commence and complete disbursements within 45 days (4) An RLF Recipient shall not use documentation to demonstrate the funds in excess of RLF Income for requirements set out in this paragraph of the deadline; (ii) Closed Loans have commenced administrative costs unless directed (a) are maintained for the duration of (but not completed) disbursement otherwise in writing by EDA. In the RLF’s operation. See also obligations prior to the deadline; or accordance with EDA’s RLF Risk § 307.13(b)(3). (iii) EDA has approved a time Analysis System, RLF Recipients are * * * * * schedule extension pursuant to expected to keep administrative costs to (c) Amount of disbursement. The paragraph (h) of this section. a minimum in order to maintain the amount of a disbursement of Grant (h) Time schedule extensions. (1) RLF RLF Capital Base. The percentage of funds shall be the amount required to Recipients shall promptly inform EDA RLF Income used for administrative meet the Federal share requirement of a in writing of any condition that may expenses will be one of the metrics used new RLF loan. RLF Income held during adversely affect their ability to meet the in EDA’s RLF Risk Analysis System to the disbursement phase may be used to prescribed schedule deadlines. RLF evaluate RLF Recipients. See also reimburse eligible administrative costs. Recipients must submit a written § 307.16. RLF Income earned during the request to EDA for continued use of (b) Compliance guidance. When Disbursement Phase must be placed in Grant funds beyond a missed deadline charging costs against RLF Income, RLF the RLF Capital Base and may be used for disbursement of RLF funds. RLF Recipients must comply with applicable to reimburse eligible and reasonable Recipients must provide good reason for Federal Uniform Administrative administrative costs, provide the the delay in their extension request by Requirements, cost principles, and audit requirements of § 307.12(a) and (b) are demonstrating that: requirements as detailed in this met, and increase the RLF Capital Base. (i) The delay was unforeseen or provision and in the terms and RLF Income earned during the beyond the control of the RLF Recipient; conditions of the RLF Grant. Disbursement Phase is not required to (ii) The financial need for the RLF (1) For RLF Grants made on or after be used for new RLF loans, unless still exists; December 26, 2014. For RLFs awarded
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on or after December 26, 2014 or for (2) Retain records of administrative reserve is non-funded and is RLFs that have received one or more expenses incurred for activities and represented by a non-cash entry. Recapitalization Grants on or after equipment relating to the operation of However, loan loss reserves shall not be December 26, 2014, the RLF Recipient the RLF for three years from the actual used to reduce the value of the RLF in must comply with the administrative submission date of the report that covers the Schedule of Expenditures of Federal and cost principles in 2 CFR part 200 the fiscal year in which such costs were Awards (‘‘SEFA’’) required as part of the (‘‘Uniform Administrative claimed. RLF Recipient’s audit requirements Requirements, Cost Principles, and (3) Consistent with § 307.11(a), for the under 2 CFR part 200. Audit Requirements for Federal duration of RLF operations, maintain * * * * * Awards’’). records to demonstrate: (c) RLF leveraging. (1) RLF loans must (2) For RLF Grants made before (i) The adequacy of the RLF’s leverage additional investment of at December 26, 2014. For RLFs awarded accounting system to identify, least two dollars for every one dollar of before December 26, 2014, unless safeguard, and account for the entire such RLF loans. This leveraging otherwise indicated in the terms of the RLF Capital Base, outstanding RLF requirement applies to the RLF portfolio Grant, the RLF Recipient must comply loans, and other RLF operations; as a whole rather than to individual with the following cost principles: (ii) That standard RLF loan loans and is effective for the duration of (i) 2 CFR part 225 (OMB Circular A– documents reasonably necessary or the RLF’s operation. To be classified as 87 for State, local, and Indian tribal advisable for lending are in place; and leveraged, additional investment must governments), (iii) Evidence of fidelity bond be made within 12 months of approval (ii) 2 CFR part 230 (OMB Circular A– coverage for persons authorized to of an RLF loan, as part of the same 122 for non-profit organizations other handle funds under the Grant award in business development project, and may than institutions of higher education, an amount sufficient to protect the include: hospitals or organizations named in interests of EDA and the RLF. (i) Capital invested by the borrower or OMB Circular A–122 as not subject to * * * * * others; such Circular), and ■ 27. Revise § 307.14 to read as follows: (ii) Financing from private entities; (iii) 2 CFR part 220 (OMB Circular A– 21 for educational institutions). § 307.14 Revolving Loan Fund report. (iii) The non-guaranteed portions and 90 percent of the guaranteed portions of (3) For all RLF Grants. For all RLF (a) Frequency of reports. All RLF any Federal loan; or Grants, regardless of when they were Recipients, including those receiving awarded, the audit requirements set out Recapitalization Grants for existing (iv) Loans from other State and local as subpart F to 2 CFR part 200 apply to RLFs, must complete and submit an RLF lending programs. audits of the RLF Recipient fiscal years report, using Form ED–209 or any * * * * * beginning on or after December 26, successor form, in a format and at a ■ 29. Revise § 307.16 to read as follows: 2014. In addition, the Compliance frequency as required by EDA. § 307.16 Risk Analysis System. Supplement, which is appendix XI to 2 (b) Report contents. RLF Recipients CFR part 200, applies as appropriate. must certify as part of the RLF report to (a) EDA shall evaluate and manage (c) Priority of payments on defaulted EDA that the RLF is operating in RLF recipients using a Risk Analysis and written off RLF loans. When an RLF accordance with the applicable RLF System that will focus on such risk Recipient receives proceeds on a Plan and that the information provided factors as: Capital, assets, management, defaulted or written off RLF loan that is is complete and accurate. earnings, liquidity, strategic results, and not subject to liquidation pursuant to ■ 28. Amend § 307.15 as follows: financial controls. Risk analysis ratings § 307.21, such proceeds shall be applied ■ a. Revise paragraph (a); of each RLF Recipient’s RLF program in the following order of priority: ■ b. Remove paragraph (b); shall be conducted at least annually and * * * * * ■ b. Redesignate paragraphs (c) and (d) will be based on the most recently (d) Voluntarily Contributed Capital. as paragraphs (b) and (c), respectively; submitted Form ED–209 RLF report. An RLF Recipient that wishes to inject and (b) An RLF Recipient generally will be additional capital into the RLF Capital ■ c. Revise the paragraph heading of allowed a reasonable period of time to Base to augment the amount of newly redesignated paragraph (c) and achieve compliance with risk factors as resources available to lend must submit paragraph (c)(1). defined by EDA. However, persistent a written request that specifies the The revisions and additions read as noncompliance with these factors and source of the funds to be added. Once follows: their limits as identified through EDA’s an RLF Recipient elects to commit Risk Analysis System over multiple § 307.15 Prudent management of Reporting Periods may result in EDA Voluntarily Contributed Capital and Revolving Loan Funds. upon approval by EDA, the Voluntarily taking appropriate remedies for (a) Accounting principles. (1) RLFs Contributed Capital becomes an noncompliance as detailed in § 307.21. shall operate in accordance with irrevocable part of the RLF Capital Base ■ 30. Revise § 307.17 to read as follows: generally accepted accounting and may not be subsequently principles (‘‘GAAP’’) as in effect in the § 307.17 Requirements for Revolving Loan withdrawn or separated from the RLF. United States and the provisions Fund Cash Available for Lending. ■ 26. Revise § 307.13 as follows: ■ a. Revise paragraph (b)(2); outlined in the audit requirements set (a) General. RLF Cash Available for ■ b. Redesignate paragraph (b)(3) as out as subpart F to 2 CFR part 200 and Lending shall be deposited and held in paragraph (b)(4); and the Compliance Supplement, which is an interest-bearing account by the ■ c. Add new paragraph (b)(3). appendix XI to 2 CFR part 200, as Recipient and used for the purpose of The revisions and additions read as applicable. making RLF loans that are consistent follows: (2) In accordance with GAAP, a loan with an RLF Plan or such other loss reserve may be recorded in the RLF purposes approved by EDA. To ensure § 307.13 Records and retention. Recipient’s financial statements to show that RLF funds are used as intended, * * * * * the adjusted current value of an RLF’s each loan agreement must clearly state (b) * * * loan portfolio, provided this loan loss the purpose of each loan.
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(b) Allowable Cash Percentage. EDA (8) Support operations or Grant, or this subpart, including but not shall notify each RLF recipient by administration of the RLF Recipient; or limited to: January 1 of each year of the Allowable (9) Undertake any activity that would (a) Failing to obtain prior EDA Cash Percentage that is applicable to violate the requirements found in part approval for material changes to the RLF lending during the ensuing calendar 314 of this chapter, including § 314.3 Plan, including provisions for year. During the Revolving Phase, RLF (‘‘Authorized Use of Property’’) and administering the RLF; Recipients must manage their § 314.4 (‘‘Unauthorized Use of (b) Failing to submit an updated RLF repayment and lending schedules so Property’’). Plan to EDA in accordance with that at all times they do not exceed the (d) Compliance and loan quality § 307.9(c); Allowable Cash Percentage. review. To ensure that the RLF recipient (c) Failing to submit timely progress, (c) Restrictions on use of RLF Cash makes eligible RLF loans consistent financial, and audit reports in the Available for Lending. RLF Cash with its RLF Plan or such other format required by the RLF Grant and Available for Lending shall not be used purposes approved by EDA, EDA may § 307.14, including the Form ED–209 to: require an independent third party to RLF report; (1) Acquire an equity position in a conduct a compliance and loan quality (d) Failing to manage the RLF Grant private business; review for the RLF Grant every three in accordance with Prudent Lending Practices, as defined in § 307.8; (2) Subsidize interest payments on an years. The RLF Recipient may undertake (e) Holding RLF Cash Available for existing RLF loan; this review as an administrative cost (3) Provide a loan to a borrower for Lending so that it is 50 percent or more associated with the RLF’s operations of the RLF Capital Base for 24 months the purpose of meeting the requirements provided the requirements set forth in of equity contributions under another without an EDA-approved extension § 307.12 are satisfied. request based on other EDA risk Federal Agency’s loan programs; ■ 31. Revise paragraphs (a)(1) analysis factors or other extenuating (4) Enable borrowers to acquire an introductory text, (a)(2), (b)(1), (b)(1)(i), interest in a business either through the circumstances; and (b)(2)(i) of § 307.18 to read as (f) Making an ineligible loan; purchase of stock or through the follows: acquisition of assets, unless sufficient (g) Failing to disburse the EDA funds justification is provided in the loan § 307.18 Addition of lending areas; in accordance with the time schedule documentation. Sufficient justification consolidation and merger of RLFs. prescribed in the RLF Grant; (h) Failing to sequester funds or remit may include acquiring a business to (a)(1) An RLF Recipient shall make save it from imminent closure or to the interest on EDA’s portion of the loans only within its EDA-approved sequestered funds to the U.S. Treasury, acquire a business to facilitate a lending area, as set forth and defined in as directed by EDA; significant expansion or increase in the RLF Grant and the RLF Plan. An (i) Failing to comply with the audit investment with a significant increase in RLF Recipient may add a lending area requirements set forth in subpart F to 2 jobs. The potential economic benefits (an ‘‘Additional Lending Area’’) to its CFR part 200 and the related must be clearly consistent with the existing lending area to create a new Compliance Supplement, including strategic objectives of the RLF; lending area (the ‘‘New Lending Area’’) reference to the correctly valued EDA (5) Provide RLF loans to a borrower only with EDA’s prior written approval RLF Federal expenditures in the SEFA, for the purpose of investing in interest- and subject to the following provisions timely submission of audit reports to the bearing accounts, certificates of deposit, and conditions: Federal Audit Clearinghouse, and the or any investment unrelated to the RLF; * * * * * inclusion of the RLF program as an or (2) Following EDA approval, the New (6) Refinance existing debt, unless: appropriately audited program; (i) The RLF Recipient sufficiently Lending Area designation shall remain (j) Failing to implement timely demonstrates in the loan documentation in place until EDA approves a resolutions to audit findings or a ‘‘sound economic justification’’ for the subsequent request for a New Lending questioned costs contained in the refinancing (e.g., the refinancing will Area. annual audit, as applicable; (k) Failing to comply with an EDA- support additional capital investment (b) * * * approved corrective action plan to intended to increase business activities). (1) Single RLF Recipient. An RLF remedy persistent noncompliance with For this purpose, reducing the risk of Recipient with more than one EDA- RLF-related findings; loss to an existing lender(s) or lowering funded RLF Grant may consolidate two (l) Failing to comply with the the cost of financing to a borrower shall or more EDA-funded RLFs into one conflicts of interest provisions set forth not, without other indicia, constitute a combined RLF with EDA’s prior written approval and provided: in § 302.17; and sound economic justification; or (m) Making unauthorized use of RLF (ii) RLF Cash Available for Lending (i) It is up-to-date with all reports in Cash Available for Lending in violation will finance the purchase of the rights accordance with § 307.14; * * * * * of § 307.18(c). of a prior lien holder during a ■ 33. Revise § 307.21 to read as follows: foreclosure action which is necessary to (2) * * * preclude a significant loss on an RLF (i) The replacement RLF Recipient is § 307.21 Remedies for noncompliance. loan. RLF funds may be used for this up-to-date with all reports in (a) General. If an RLF Recipient fails purpose only if there is a high accordance with § 307.14; to operate the RLF in accordance with probability of receiving compensation * * * * * the RLF Plan, the terms and conditions from the sale of assets sufficient to cover ■ 32. Revise § 307.20 to read as follows: of the RLF Grant, or this subpart, as an RLF’s costs plus a reasonable portion detailed in § 307.20, as appropriate in of the outstanding RLF loan within a § 307.20 Noncompliance. the circumstances, EDA may require one reasonable time frame approved by EDA EDA will take appropriate compliance or more of the following actions, as following the date of refinancing. actions as detailed in § 307.21 for the appropriate in the circumstances: (7) Serve as collateral to obtain credit RLF Recipient’s failure to operate the (1) Increased reporting requirements; or any other type of financing without RLF in accordance with the RLF Plan, (2) Implementation of a corrective EDA’s prior written approval; the terms and conditions of the RLF action plan;
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(3) A special audit; (4) EDA may allow the RLF Third ensure the Subrecipient’s compliance (4) Sequestration of RLF funds; Party to retain a portion of the RLF with legal requirements. (5) Repayment of ineligible loans or assets, consistent with the agreement * * * * * other costs to the RLF; referenced in paragraph (d)(3) of this ■ 36. Revise paragraphs (a)(1) and (b) of (6) Transfer or merger of the RLF in section, as reasonable compensation for § 309.2 to read as follows: accordance with § 307.18; services rendered in the liquidation; and (7) Suspension of the RLF Grant; or (5) EDA may require additional § 309.2 Redistributions under part 307. (8) Termination of the RLF Grant, in reasonable terms and conditions. (a) * * * whole or in part. (e) Distribution of proceeds. The (1) A subgrant to another Eligible (b) Disallowance of a portion of an proceeds resulting from any liquidation Recipient, generally referred to a RLF Grant, liquidation. If the RLF upon termination shall be distributed in Subrecipient, that qualifies for Recipient engages in certain problematic the following order of priority: Investment Assistance under part 307 of practices, EDA may disallow a (i) First, for any third party this chapter; or corresponding proportion of the Grant liquidation costs; * * * * * or direct the RLF Recipient to transfer (ii) Second, for the payment of EDA’s (b) All redistributions of Investment loans to an RLF Third Party for Federal Share; and Assistance made pursuant to this liquidation. Problematic practices for (iii) Third, if any proceeds remain, to section shall be subject to the same which EDA may disallow a portion of the RLF Recipient. terms and conditions applicable to the an RLF Grant and recover the pro-rata (f) RLF Recipient’s request to Recipient under the original Investment Federal Share (as defined in § 314.5 of terminate. EDA may approve a request Assistance award and must satisfy the this chapter) include the RLF Recipient: from an RLF Recipient to terminate an requirements of PWEDA and of this (1) Holding RLF Cash Available for RLF Grant. The RLF Recipient must chapter. EDA may require the Eligible Lending so that it is 50 percent or more compensate the Federal Government for Recipient under the original Investment of the RLF Capital Base for 24 months the pro rata Federal Share of the RLF Award to agree to special award without an EDA-approved extension Capital Base. conditions and the Subrecipient to request; (g) Upon termination, distribution of provide appropriate certifications to (2) Failing to disburse the EDA funds proceeds shall occur in accordance with ensure the Subrecipient’s compliance in accordance with the time schedule § 307.21(e). with legal requirements. prescribed in the RLF Grant; or (3) Determining that it does not wish PART 309—REDISTRIBUTIONS OF PART 314—PROPERTY to further invest in the RLF or cannot INVESTMENT ASSISTANCE ■ 37. The authority citation for part 314 maintain operations at the degree continues to read as follows: originally contemplated upon receipt of ■ 34. The authority citation of part 309 the RLF Grant and requests that a continues to read as follows: Authority: 42 U.S.C. 3211; Department of portion of the RLF Grant be disallowed, Authority: 42 U.S.C. 3154c; 42 U.S.C. 3211; Commerce Organization Order 10–4. and EDA agrees to the disallowance. Department of Commerce Delegation Order ■ 38. Amend § 314.1 by: (c) Termination or suspension. To 10–4. ■ a. Revising the definition of Personal maintain effective control over and ■ 35. Revise § 309.1(a) to read as Property; accountability of RLF Grant funds and follows: ■ b. Adding the definition of Project assets, EDA shall determine the manner Property in alphabetical order; and and timing of any suspension or § 309.1 Redistributions under parts 303, ■ c. Revising the definition of Real termination action. EDA may require the 305 and 306. Property. RLF Recipient to repay the Federal (a) General. Except as provided in The revisions and additions read as Share in a lump-sum payment or enter paragraph (b) of this section, a Recipient follows: into a Sale, or EDA may agree to enter of Investment Assistance under parts into a repayment agreement with the 303, 305 or 306 of this chapter may § 314.1 Definitions. RLF Recipient for repayment of the directly expend such Investment * * * * * Federal Share. Assistance or, with prior EDA approval, Personal Property means all tangible (d) Termination, liquidation upon may redistribute such Investment and intangible property other than Real termination. When EDA approves the Assistance in the form of a subgrant to Property, including the RLF Capital termination of an RLF Grant, EDA must another Eligible Recipient, generally Base as defined at § 307.8. make all efforts to recover the pro rata referred to as a Subrecipient, that Project Property means all Property Federal Share (as defined in § 314.5 of qualifies for Investment Assistance that is acquired or improved, in whole this chapter). EDA may assign or under the same part of this chapter as or in part, with Investment Assistance transfer assets of the RLF to an RLF the Recipient, to fund required and is required, as determined by EDA, Third Party for liquidation. The components of the scope of work for the successful completion and following terms will govern any approved for the Project. All subgrants operation of a Project and/or serves as liquidation: made pursuant to this section shall be the economic justification of a Project. (1) EDA shall have sole discretion in subject to the same terms and As appropriate to specify the type of choosing the RLF Third Party; conditions applicable to the Recipient Property to which they are referring, (2) The RLF Third Party may be an under the original Investment subparts B and C of this part refer to Eligible Applicant or a for-profit Assistance award and must satisfy the Project Property as ‘‘Project Real organization not otherwise eligible for requirements of PWEDA and of this Property’’ or ‘‘Project Personal Investment Assistance; chapter. EDA may require the Eligible Property’’. (3) EDA may enter into an agreement Recipient under the original Investment * * * * * with the RLF Third Party to liquidate award to agree to special award Real Property means any land, the assets of one or more RLFs or RLF conditions and the Subrecipient to whether raw or improved, and includes Recipients; provide appropriate certifications to structures, fixtures, appurtenances and
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other permanent improvements, authorized by PWEDA and by this or otherwise undermine the economic excluding moveable machinery and chapter. purpose for which the Investment was equipment. Real Property includes land (c) Real Property for sale or lease. made or adversely affect the economic that is served by the construction of Where EDA determines that the useful life of the Property. Eligible Project infrastructure (such as roads, authorized purpose of the Investment Applicants and Recipients should sewers and water lines) where the Assistance is to develop Real Property contact the appropriate regional office infrastructure contributes to the value of to be leased or sold, such sale or lease (whose contact information is available such land as a specific purpose of the is permitted provided it is for Adequate via the Internet at http://www.eda.gov) Project. Consideration and the sale is consistent for guidelines on obtaining approval for * * * * * with the authorized purpose of the incidental use of Property under this ■ 39. Revise § 314.2 to read as follows: Investment Assistance and with all section. applicable Investment Assistance ■ 41. Revise the section heading, § 314.2 Federal Interest. requirements, including paragraph (a), the introductory text of (a) Subject to the obligations and nondiscrimination and environmental paragraph (b) and paragraph (c) of conditions set forth in this part and in compliance. § 314.4 to read as follows: relevant provisions of 2 CFR part 200, (d) Property transfers and Successor Project Property vests upon acquisition Recipients. EDA, in its sole discretion, § 314.4 Unauthorized Use of Project in the recipient (or, if approved by EDA, may approve the transfer of any Project Property. in a Co-recipient or Subrecipient). Property from a Recipient to a Successor (a) Compensation of Federal Share Project Property shall be held in trust by Recipient (or from one Successor upon an Unauthorized Use of Project the Recipient for the benefit of the Recipient to another Successor Property. Except as provided in §§ 314.3 Project for the Estimated Useful Life of Recipient). The Recipient will remain (regarding the authorized use of the Project, during which period EDA responsible for complying with the rules Property) or 314.10 (regarding the retains an undivided equitable of this part and the terms and release of the Federal Interest in certain reversionary interest in the Property (the conditions of the Investment Assistance Property), or as otherwise authorized by ‘‘Federal Interest’’). The Federal Interest for the period in which it is the EDA, the Federal Government must be ensures compliance with EDA Project Recipient. Thereafter, the Successor compensated by the Recipient for the requirements, including those related to Recipient must comply with the rules of Federal Share whenever, during the the purpose, scope, and use of a Project. this part and with the same terms and Estimated Useful Life of the Project, any The Recipient typically must secure the conditions as were applicable to the Project Property is Disposed of, Federal Interest through a recorded lien, Recipient (unless such terms and encumbered, or no longer used for the statement, or other recordable conditions are otherwise amended by purpose of the Project; provided that for instrument setting forth EDA’s Property EDA). The same rules apply to EDA- equipment and supplies, the interest in a Project (e.g., a mortgage, approved transfers of Property between requirements of 2 CFR part 200, covenant, or other statement of EDA’s Successor Recipients. including any supplements or Real Property interest in the case of a (e) Replacement Personal Property. amendments thereto, shall apply. Project involving the acquisition, When acquiring replacement Personal construction, or improvement of a Property of equal or greater value than (b) Additional Unauthorized Uses of building. See § 314.8.). Personal Property originally acquired Project Property. Additionally, prior to (b) When the Federal government is with Investment Assistance, the the release of the Federal Interest, fully compensated for the Federal Share Recipient may, with EDA’s approval, Project Real Property or tangible Project of Project Property, the Federal Interest trade in such Personal Property Personal Property may not be used: is extinguished and the Federal originally acquired or sell the original * * * * * Government has no further interest in Personal Property and use the proceeds for the acquisition of the replacement (c) Recovery of the Federal Share. the Property, except as provided in Where the Disposition, encumbrance, or § 314.10(e)(3) regarding Personal Property; provided that the replacement Personal Property is for use use of any Project Property violates nondiscrimination requirements. paragraphs (a) or (b) of this section, EDA ■ 40. Revise § 314.3 to read as follows: in the Project. The replacement Personal Property is subject to the same may assert the Federal Interest in the § 314.3 Authorized use of Project Property. requirements as the original Personal Project Property to recover the Federal (a) General. During the Estimated Property. Share for the Federal Government and Useful Life of the Project, the Recipient (f) Replacement Real Property. In may take such actions as authorized by or Owner must use any Project Property extraordinary and compelling PWEDA and this chapter, including the only for authorized Project purposes as circumstances, the Assistant Secretary actions provided in §§ 302.3, 302.16, set out in the terms of the Investment may approve the replacement of Real and 307.21 of this chapter. EDA may Assistance. Such Property must not be Property used in a Project. pursue its rights under paragraph (a) of Disposed of or encumbered without (g) Incidental use of Project Property. this section and this paragraph (c) to EDA’s prior written authorization. With EDA’s prior written approval, a recover the Federal Share, plus costs (b) Project Property that is no longer Recipient may undertake an incidental and interest. When the Federal needed for Project purposes. Where use of Project Property that does not Government is fully compensated for EDA and the Recipient determine interfere with the scope of the Project or the Federal Share, the Federal Interest is during the Estimated Useful Life of the the economic purpose for which the extinguished as provided in § 314.2(b), Project that Project Property is longer Investment was made; provided that the and EDA will have no further interest in needed for the original purpose of the Recipient is in compliance with the ownership, use, or Disposition of the Investment Assistance, EDA, in its sole applicable law and the terms and Property, except for the discretion, may approve the use of such conditions of the Investment Assistance, nondiscrimination requirements set Property in other Federal grant and the incidental use of the Property forth in § 314.10(d)(3). programs or in programs that have will not violate the terms and ■ 42. Revise § 314.5(a) to read as purposes consistent with those conditions of the Investment Assistance follows:
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§ 314.5 Federal Share. (5) * * * conditions of the purchase agreement (a) For purposes of this part, ‘‘Federal (v) * * * adequately safeguard the Federal Share’’ means that portion of the current (B) A Recipient that is a non-profit Government’s interest in the Project fair market value of any Project Property organization is financially strong and is Real Property. attributable to EDA’s participation in an established organization with (2) Leasehold interests. EDA may the Project. EDA may rely on a current sufficient organizational life to determine that a long-term leasehold certified appraisal of the Project demonstrate stability over time; interest for a period not less than the Property prepared by an appraiser * * * * * Estimated Useful Life of Project Real licensed in the State where the Project (c) Encumbering Project Property, Property will be acceptable for purposes Property is located to determine the fair other than as permitted in this section, of paragraph (a) of this section if: market value. In extraordinary is an Unauthorized Use of the Property * * * * * circumstances and at EDA’s sole under § 314.4. (4) State or local government owned ■ discretion, where EDA is unable to 44. Revise paragraphs (a), (c) roadway or highway construction. When determine the current fair market value, introductory text, (c)(1), (c)(1)(ii), (c)(2) the Project includes construction on a EDA may use other methods of introductory text, (c)(4) introductory State or local government owned determining the value of Project text, (c)(4)(ii)(B), (c)(4)(iii), (c)(5)(i), and roadway or highway the owner of which Property, including the amount of the (c)(5)(iii) of § 314.7 to read as follows: is not the Recipient, EDA may allow the award of Investment Assistance or the § 314.7 Title. Project to be constructed in whole or in amount paid by a transferee. The (a) General title requirement. Except part in the right-of-way of such public Federal Share shall be the current fair in those limited circumstances roadway or highway, provided that: market value or other valuation as identified in paragraph (c) of this * * * * * determined by EDA of the Property after section, at the time Investment (ii) * * * deducting: Assistance is awarded, the Recipient (B) If at any time during the Estimated * * * * * must hold title to Project Real Property, Useful Life of the Project any or all of ■ 43. Revise paragraphs (a), (b)(3), which, as noted in § 314.1 in the the improvements in the Project within (b)(4)(v)(B), (b)(5)(v)(B), and (c) of definition of ‘‘Real Property’’ includes the State or local government owned § 314.6 to read as follows: land that is served by the construction roadway or highway are relocated for of Project infrastructure (such as roads, any reason pursuant to requirements of § 314.6 Encumbrances. sewers, and water lines) and where the the owner of the public roadway or (a) General. Except as provided in infrastructure contributes to the value of highway, the Recipient shall be paragraph (b) of this section or as such land as a specific purpose of the responsible for accomplishing such otherwise authorized by EDA, Project Project. The Recipient must maintain relocation, including expending the Property must not be used to secure a title to Project Real Property at all times Recipient’s own funds as necessary, so mortgage or deed of trust or in any way during the Estimated Useful Life of the that the Project continues as authorized otherwise encumbered, except to secure Project, except in those limited by the Investment Assistance; and a grant or loan made by a Federal circumstances as provided in paragraph (iii) The Recipient obtains all written Agency or State agency or other public (c) of this section. The Recipient also authorizations (i.e., State or county body participating in the same Project, must furnish evidence, satisfactory in permit(s)) necessary for the Project to be so long as the Recipient discloses such form and substance to EDA, that title to constructed within the public roadway an encumbrance in writing as part of its Project Real Property (other than or highway, copies of which shall be application for Investment Assistance or property of the United States) is vested submitted to EDA. Such authorizations as soon as practicable after learning of in the Recipient and that any easements, shall contain no time limits that EDA the encumbrance. rights-of-way, State or local government determines substantially restrict the use (b) * * * permits, long-term leases, or other items of the public roadway or highway for (3) Pre-existing encumbrances. required for the Project have been or the Project during the Estimated Useful Encumbrances already in place and will be obtained by the Recipient within Life of the Project. disclosed to EDA at the time EDA an acceptable time, as determined by (5) * * * approves the Project where EDA, in its EDA. (i) General. At EDA’s discretion, when sole discretion, determines that: * * * * * an authorized purpose of the Project is (i) The requirements of § 314.7(b) are (c) Exceptions. The following are to construct Recipient-owned facilities met; exceptions to the requirements of to serve Recipient or privately owned (ii) Consistent with paragraphs paragraph (a) of this section that the Project Real Property, including (b)(4)(iv) and (b)(5)(iv) of this section, Recipient hold title to Project Real industrial or commercial parks, so that the terms and conditions of the Property at the time Investment the Recipient or Owner may sell or lease encumbrance are satisfactory; and Assistance is awarded and at all times parcels of the Project Real Property to (iii) Consistent with paragraphs during the Estimated Useful Life of the private parties, such ownership, sale, or (b)(4)(v) and (b)(5)(v), there is a Project. lease, as applicable, is permitted so long reasonable expectation that the (1) Project Real Property acquisition. as: Recipient will not default on its Where the acquisition of Project Real (A) In cases where an authorized obligations. Property is contemplated as part of an purpose of the Project is to sell Project (4) * * * Investment Assistance award, EDA may Real Property, the Recipient or Owner, (v) * * * determine that an agreement for the as applicable, provides evidence (B) A Recipient that is a non-profit Recipient to purchase the Project Real sufficient to EDA that it holds title to organization is financially strong and is Property will be acceptable for purposes the Project Real Property intended for an established organization with of paragraph (a) of this section if: sale or lease prior to the disbursement sufficient organizational life to * * * * * of any portion of the Investment demonstrate stability over time; (ii) EDA, in its sole discretion, Assistance and will retain title until the * * * * * determines that the terms and sale of the Property in accordance with
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paragraphs (c)(5)(i)(C) through (E) of this record in the Real Property records of procedures to obtain a release of the section; the jurisdiction in which the Project Federal Interest in Project Property. (B) In cases where an authorized Real Property is located, all in (b) Release of the Federal Interest purpose of the Project is to lease Project accordance with applicable law. after the expiration of the Estimated Real Property, the Recipient or Owner, * * * * * Useful Life. At the expiration of a as applicable, provides evidence (d) In extraordinary circumstances Project’s Estimated Useful Life and sufficient to EDA that it holds title to and at EDA’s sole discretion, EDA may upon the written request of a recipient, the Project Real Property intended for the Assistant Secretary may release the choose to accept another instrument to lease prior to the disbursement of any Federal Interest in Project Property if protect the Federal Interest in Project portion of the Investment Assistance EDA determines that the Recipient has Real Property, such as an escrow and will retain title for the entire made a good faith effort to fulfill all agreement or letter of credit, provided Estimated Useful Life of the Project; terms and conditions of the Investment that EDA determines such instrument is (C) The Recipient provides adequate Assistance. The determination provided adequate and a recorded statement in assurances that the Project and the for in this paragraph shall be established accord with paragraph (a) of this section development of land and improvements at the time of Recipient’s written request is not reasonably available. The terms on the Recipient or privately owned and shall be based, at least in part, on and provisions of the relevant Project Real Property to be served by or the facts and circumstances provided in that provides the economic justification instrument shall be satisfactory to EDA writing by the Recipient. For a Project for the Project will be completed in EDA’s sole judgment. The costs and in which a Recorded Statement as according to the terms of the Investment fees for escrow services and letters of provided for in §§ 314.8 and 314.9 of Assistance; credit shall be paid by the Recipient. this chapter has been recorded, EDA (D) The sale or lease of any portion of ■ 46. Revise § 314.9 to read as follows: will provide for the release by executing the Project or of Project Real Property § 314.9 Recorded statement for Project an instrument in recordable form. The served by the Project or that provides Personal Property. release will terminate the Investment as the economic justification for the Project of the date of its execution and satisfy during the Project’s Estimated Useful For all Projects which EDA the Recorded Statement. See paragraph Life must be for Adequate Consideration determines involve the acquisition or (e) of this section for limitations and and the terms and conditions of the improvement of significant items of covenants of use that are applicable to Investment Assistance and the Personal Property, including ships, any release of the Federal Interest. purpose(s) of the Project must continue machinery, equipment, removable (c) Release prior to the expiration of to be fulfilled after such sale or lease; fixtures, or structural components of the Estimated Useful Life. If the and buildings, the Recipient shall provide Recipient will no longer use the Project * * * * * notice of the Federal Interest all Project Property in accord with the (iii) Agreement between Recipient and Personal Property by executing a requirements of the terms and Owner. In addition to paragraphs Uniform Commercial Code Financing conditions of the Investment within the (c)(5)(i) and (ii) of this section, when an Statement (Form UCC–1, as provided by time period of the Estimated Useful Life, authorized purpose of the Project is to State law) or other statement of the EDA will determine if such use by the construct facilities to serve privately Federal Interest in the Project Personal Recipient constitutes an Unauthorized owned Real Property, the Recipient and Property, acceptable in form and Use of Property and require the Owner must agree to use the Real substance to EDA, which statement compensation for the Federal Interest as Property improved or benefitted by the must be perfected and placed of record provided in § 314.4 and this section. EDA Investment Assistance only for the in accordance with applicable law, with EDA may release the Federal Interest in authorized purposes of the Project and continuances re-filed as appropriate. connection with such Property only in a manner consistent with the terms Whether or not a statement is required upon receipt of full payment in and conditions of the EDA Investment by EDA to be recorded, the Recipient compensation of the Federal Interest Assistance for the Estimated Useful Life must hold title to all Project Personal and thereafter will have no further of the Project. Property, except as otherwise provided interest in the ownership, use, or in this part. * * * * * Disposition of the Property, except for ■ 45. Revise paragraphs (a), (b), and (d) ■ 47. Revise the section heading and the nondiscrimination requirements set of § 314.8 to read as follows: paragraphs (a) through (d), (e)(2), and forth in paragraph (e)(3) of this section. the introductory text to paragraph (e)(3) (d) Release of the Federal Interest § 314.8 Recorded statement for Real to read as follows: before the expiration of the Estimated Property. Useful Life, but 20 years after the award (a) For all Projects involving the § 314.10 Procedures for release of the of Investment Assistance. In accord with Federal Interest. acquisition, construction, or section 601(d)(2) of PWEDA, upon the improvement of a building, as (a) General. As provided in § 314.2 of request of a Recipient and before the determined by EDA, the Recipient shall this chapter, the Federal Interest in expiration of the Estimated Useful Life execute a lien, covenant, or other Project Property extends for the of a Project, but where 20 years have statement of the Federal Interest in such duration of the Estimated Useful Life of elapsed since the award of Investment Project Real Property. The statement the Project, which is determined by Assistance, EDA may release any Real shall specify the Estimated Useful Life EDA at the time of Investment award. Property or tangible Personal Property of the Project and shall include, but not Upon request of the Recipient, EDA will interest held by EDA, if EDA be limited to, the Disposition, release the Federal Interest in Project determines: encumbrance and Federal Share Property upon expiration of the (1) The Recipient has made a good requirements. The statement shall be Estimated Useful Life as established in faith effort to fulfill all terms and satisfactory in form and substance to the terms and conditions of the conditions of the award of Investment EDA. Investment Assistance and in accord Assistance; and (b) The statement of the Federal with the requirements of this section (2) The economic development Interest must be perfected and placed of and part. This section provides benefits as set out in the award of
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Investment Assistance have been A covenant of use with respect to Real Recipient) for explicitly religious achieved. Property shall be recorded in the activities to contact EDA well in (3) See paragraph (e) of this section jurisdiction where the Real Property is advance of requesting a release pursuant for limitations and covenants of use that located in accordance with § 314.8. A to this section. are applicable to any release of the covenant of use with respect to items of (3) Notwithstanding any release of the Federal Interest. tangible Personal Property shall be Federal Interest under this section, (e) * * * perfected and recorded in accordance including a release upon a Recipient’s (2) In determining whether to release with applicable law, with continuances compensation for the Federal Share, a the Federal Interest, EDA will review re-filed as appropriate. See § 314.9. A Recipient must ensure that Project EDA’s legal authority to release its covenant of use shall (at a minimum) Property is not used in violation of interest, including the Recipient’s prohibit the use of the Real Property or nondiscrimination requirements set performance under and conformance the tangible Personal Property for with the terms and conditions of the explicitly religious activities in forth in § 302.20 of this chapter. Investment Assistance; any use of violation of applicable Federal law. Accordingly, upon the release of the Project Property in violation of § 314.3 (ii) EDA may require a Recipient (or Federal Interest, the Recipient must or § 314.4; and other such factors as its successors in interest) that intends or execute a covenant of use that prohibits EDA deems appropriate. When foresees the use of Real Property or use of Real Property or tangible Personal requesting a release of the Federal tangible Personal Property for explicitly Property for any purpose that would Interest pursuant to this section, the religious activities following the release violate the nondiscrimination Recipient will be required to disclose to of the Federal Interest to compensate requirements set forth in § 302.20 of this EDA the intended future use of the Real EDA for the Federal Share of such chapter. Property or the tangible Personal Property. If such compensation is made, * * * * * no covenant with respect to explicitly Property for which the release is Dated: September 12, 2016. requested. religious activities will be required as a (i) A Recipient not intending to use condition of the release. EDA Roy K.J. Williams, the Real Property or tangible Personal recommends that any Recipient who Assistant Secretary of Commerce for Property for explicitly religious intends or foresees the use of Real Economic Development. activities following EDA’s release will Property or tangible Personal Property [FR Doc. 2016–22287 Filed 9–30–16; 8:45 am] be required to execute a covenant of use. (including by successors of the BILLING CODE 3510–24–P
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Part V
Environmental Protection Agency
40 CFR Parts 50 and 51 Treatment of Data Influenced by Exceptional Events; Final Rule
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ENVIRONMENTAL PROTECTION demonstration submittal process, and 5432, email at [email protected]. AGENCY removing some of the challenges For general information regarding the associated with implementing the Guidance on the Preparation of 40 CFR Parts 50 and 51 Exceptional Events Rule. As part of the Exceptional Events Demonstrations for EPA’s mission to protect public health, Wildfire Events that May Influence [EPA–HQ–OAR–2013–0572, EPA–HQ–OAR– 2015–0229; FRL–9952–89–OAR] this action promulgates new Ozone Concentrations, please contact requirements for mitigation plans for Lev Gabrilovich, U.S. EPA, Office of Air RIN 2060–AS02 areas with known, recurring events. We Quality Planning and Standards, Air are simultaneously using this action to Quality Policy Division, Mail Code Treatment of Data Influenced by provide written notification to those C539–04, Research Triangle Park, NC Exceptional Events states with areas that are initially 27711, telephone (919) 541–1496, email AGENCY: Environmental Protection subject to these new requirements. In at [email protected]. Agency (EPA). addition to finalizing revisions to the SUPPLEMENTARY INFORMATION: Exceptional Events Rule, the EPA is also ACTION: Final rule; notification to states announcing the availability of the final I. General Information with areas subject to mitigation version of the non-binding guidance A. Executive Summary requirements; final guidance. document titled Guidance on the Pursuant to section 319(b) of the CAA, Preparation of Exceptional Events SUMMARY: The Environmental Protection the EPA is taking action to finalize Demonstrations for Wildfire Events that Agency (EPA) is finalizing revisions to revisions to the Exceptional Events Rule May Influence Ozone Concentrations, certain sections within the regulations (codified at 40 CFR 50.1, 50.14 and which applies the rule revisions to that govern the exclusion of event- 51.930), which governs the exclusion of wildfire events that could influence influenced air quality data from certain these event-affected air quality data. The monitored ozone concentrations. regulatory decisions under the Clean Air CAA recognizes that it may not be Act (CAA). The EPA’s mission includes DATES: This final rule is effective on appropriate to use monitoring data preserving and improving the quality of September 30, 2016. influenced by ‘‘exceptional’’ events our nation’s ambient air to protect ADDRESSES: The EPA established Docket collected by the ambient air quality human health and the environment, and ID No. EPA–HQ–OAR–2013–0572 for monitoring network when making the CAA and the EPA’s regulations rely this action. All documents in the docket certain regulatory determinations. When heavily on ambient air quality data. are listed in the http:// ‘‘exceptional’’ events influence However, the CAA also recognizes that www.regulations.gov Web site. Although monitoring data and cause exceedances it may not be appropriate to use the listed in the index, some information is or violations of the NAAQS, air agencies monitoring data influenced by not publicly available, e.g., Confidential can request the exclusion of event- ‘‘exceptional’’ events that are collected Business Information or other influenced data, and the EPA can agree by the ambient air quality monitoring information whose disclosure is to exclude these data, from the data set network when making certain regulatory restricted by statute. Certain other used for certain regulatory decisions. determinations. When ‘‘exceptional’’ material, such as copyrighted material, This section summarizes the purpose events cause exceedances or violations is not placed on the Internet and will be of this regulatory action and its major of the national ambient air quality publicly available only in hard copy. provisions and provides an overview of standards (NAAQS) that subsequently Publicly available docket materials are the associated guidance. After affect certain regulatory decisions, the available electronically in http:// considering the comments received normal planning and regulatory process www.regulations.gov. during the public comment period, we established by the CAA may not be The EPA also established Docket ID are making several changes to the appropriate. This final rule contains No. EPA–HQ–OAR–2015–0229 for the promulgated rule language and/or the definitions, procedural requirements, related guidance document titled preamble, in which we provide non- requirements for air agency Guidance on the Preparation of binding guidance to assist air agencies demonstrations, criteria for the EPA’s Exceptional Events Demonstrations for in implementing the rule. In accordance approval of the exclusion of event- Wildfire Events that May Influence with section 553(d)(3) of the influenced air quality data and Ozone Concentrations. All documents Administrative Procedures Act, good requirements for air agencies to take in the docket are listed in the http:// cause exists to expedite effectiveness of appropriate and reasonable actions to www.regulations.gov Web site. Although this final rule, therefore, we are also protect public health from exceedances listed in the index, some information is establishing the effective date of this or violations of the NAAQS. It reflects not publicly available, e.g., Confidential action to be the date that it is published the experiences of the EPA, state, local Business Information or other in the Federal Register. See 5 U.S.C. and tribal air agencies, federal land information whose disclosure is 553(d)(3). Good cause exists when managers and other stakeholders in restricted by statute. Certain other urgency of conditions are coupled with implementing this program over the material, such as copyrighted material, demonstrated and unavoidable past 10 years. These regulatory is not placed on the Internet and will be limitations in time; primary revisions, the EPA’s commitment to publicly available only in hard copy. consideration is given to the improved communications, our focus on Publicly available docket materials are convenience or necessity of the people decisions with regulatory significance, available electronically in http:// affected. In this circumstance, prompt and the expressed non-binding guidance www.regulations.gov. effectiveness of this final rule will allow in the preamble regarding FOR FURTHER INFORMATION CONTACT: For state governors and tribes, if they wish, recommendations for demonstration general information regarding this rule, to consider the final rule revisions in narrative and analyses to include in please contact Beth Palma, U.S. EPA, advance of submitting recommendations demonstration packages, protect human Office of Air Quality Planning and for area designations for the 2015 Ozone health and the environment while Standards, Air Quality Policy Division, NAAQS, which are due by October 1, providing needed clarity, increasing the Mail Code C539–04, Research Triangle 2016, and which could include the administrative efficiency of Park, NC 27711, telephone (919) 541– consideration of exceptional events. The
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deadline for states and tribes to submit Events Rule language commonly communications and coordination recommendations for area designations referred to as the ‘‘but for’’ criterion and regarding the identification, for the 2015 Ozone NAAQS is a focus instead on the clear causal development and review of these demonstrated and unavoidable time relationship criterion. demonstrations, we are promulgating a limitation. Prompt effectiveness of this With respect to the ‘‘not reasonably regulatory requirement for an initial final rule is in the public interest as it controllable or preventable’’ criterion, notification by the air agency to the EPA will ensure adequate time for states to the EPA is promulgating a provision of a potential exceptional event for develop their exceptional events that enforceable control measures are which the agency is considering demonstrations and time for the public ‘‘reasonable controls’’ with respect to all preparing a demonstration as a to comment on those demonstrations. In anthropogenic sources that have or may preliminary step before submitting a addition, typically rules are effective at have contributed to event-related demonstration. We further establish in least 30 days after publication to emissions if the controls are: (1) rule language that the required provide time for affected parties to Implemented in accordance with an demonstration elements include a adjust their behavior and prepare before attainment or maintenance state narrative conceptual model, or the final rule takes effect. That implementation plan (SIP), a federal narrative, describing the event(s) circumstance does not apply to this implementation plan (FIP) or a tribal causing the exceedance or violation and final rule because this rule does not implementation plan (TIP), (2) if the a discussion of how emissions from the require a behavior change. Rather, this EPA approved the plan within 5 years event(s) led to the exceedance at the final rule revises and provides of the date of an event, and (3) if the affected monitor(s); a demonstration additional clarity with respect to a plan addresses the event-related that the event affected air quality in previously existing opportunity. pollutant and all sources necessary to such a way that there exists a clear We are promulgating language to fulfill the requirements of the CAA for causal relationship between the specific define those regulatory actions that the SIP, FIP or TIP.1 Also for the ‘‘not event and the monitored exceedance or comprise ‘‘determinations by the reasonably controllable or preventable’’ violation supported, in part, by a Administrator with respect to criterion, the EPA is codifying in comparison to historical concentrations; exceedances or violations of the regulatory text that air agencies a demonstration that the event was both [NAAQS].’’ In doing so, we apply the generally have no obligation to not reasonably controllable and not provisions in CAA section 319(b) to a specifically address controls if the event reasonably preventable; and a specific set of regulatory actions (e.g., was due to emissions originating demonstration that the event was a designations). The final rule language outside their jurisdictional (i.e., state or human activity that is unlikely to recur returns to the three core statutory tribal) border. Of course, a submission at a particular location or was a natural elements and implicit concepts of CAA based on emissions originating outside event. Additionally, the rule revisions section 319(b): (1) The event affected air of the submitter’s jurisdictional borders require documentation that the air quality in such a way that there exists must demonstrate that the event also agency conducted a public comment a clear causal relationship between the meets the other exceptional events process. specific event and the monitored criteria. exceedance or violation, (2) the event With respect to the ‘‘human activity Because affected air agencies have was not reasonably controllable or that is unlikely to recur at a particular provided feedback regarding the preventable, and (3) the event was location or was a natural event’’ difficulty associated with meeting the caused by human activity that is criterion, we present options in this regulatory timelines in the 2007 rule unlikely to recur at a particular location preamble that air agencies and the EPA associated with data flagging, initial or was a natural event. We clarify in the can use to determine whether the event descriptions and demonstration preamble the general types of analyses recurrence frequency of an event is submittals, the EPA is promulgating and narrative that the EPA expects to ‘‘unlikely to recur at a particular revisions that remove specific deadlines see in demonstrations to address each of location.’’ We expand on this concept that apply in situations other than these three core statutory elements. We with regulatory language that defines a initial area designations following also clarify how to apply these criteria specific approach to recurrence promulgation of a new or revised in certain scenarios and to certain event frequency applicable to prescribed fire NAAQS. Also associated with types. on wildland. We also clarify in demonstration timing, the EPA is In returning to the first of the three regulatory language that natural events promulgating a provision to terminate core statutory elements (i.e., the event can recur, sometimes frequently, the EPA’s obligation to review a affected air quality in such a way that without affecting the approvability of a demonstration following a 12-month there exists a clear causal relationship demonstration for the identified natural period of inactivity by the air agency. In between the specific event and the event and that we consider reasonably addition, although we are not monitored exceedance or violation), we controlled anthropogenic emissions promulgating timelines in rule language are promulgating regulatory text that sources to play little or no direct role in for the EPA’s response to submitted subsumes the ‘‘affects air quality’’ causing those emissions. demonstrations, we are identifying in element into the ‘‘clear causal The final rule preamble and rule text this preamble the following intended relationship’’ criterion. We are also clarify that air agencies must address all response timelines: A formal response removing from the rule language the of the core statutory elements and to the Initial Notification (see Section requirement for air agencies to provide implicit concepts of CAA section 319(b) IV.G.5 of this preamble) within 60 days, evidence that the event is associated within an exceptional events initial review of an exceptional events with a measured concentration in excess demonstration. To facilitate early demonstration with regulatory of ‘‘normal historical fluctuations significance within 120 days of receipt including background’’ and replacing it 1 If the air agency is required to revise its (see Section IV.G.7 of this preamble), a with a requirement for a comparison of implementation plan as a result of a SIP Call action decision regarding event concurrence/ pursuant to CAA section 110(k)(5), any deference to the event-related concentration to the implementation plan’s enforceable control nonconcurrence within 12 months of historical concentrations. Additionally, measures will be determined on a case-by-case receipt of a complete demonstration (see we are removing the 2007 Exceptional basis. Section IV.G.7 of this preamble), and a
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‘‘deferral letter’’ within 60 days of The Wildfire Guidance provides air satisfying the Exceptional Events Rule receipt of a demonstration that the EPA agencies with information on how to criteria for stratospheric ozone determined during the Initial prepare and submit evidence to meet intrusions. In addition, as we discussed Notification process to not to have the Exceptional Events Rule in the proposal and as discussed in regulatory significance (see Section requirements for monitored ozone more detail in Section IV.C of this IV.G.7 of this preamble). exceedances caused by wildfires. The preamble, we also intend to develop a Among the questions stakeholders document includes example analyses, supplementary guidance document, have raised since promulgation of the conclusion statements, and technical Draft Guidance for Excluding Some 2007 Exceptional Events Rule are those tools that air agencies can use to provide Ambient Pollutant Concentration Data regarding fire-related components that evidence to satisfy the Exceptional from Certain Calculations and Analyses the preamble to the 2007 Exceptional Events Rule criteria. The Wildfire for Purposes Other than Retrospective Events Rule discussed, but did not fully Guidance also identifies wildfire and Determinations of Attainment of the define or clarify. This final action monitor-based characteristics that might NAAQS, to describe the appropriate promulgates in rule language several allow for a simpler and less resource- additional pathways for data exclusion fire-related definitions and the consuming demonstration. The Wildfire for some ‘‘predicted future’’ monitoring conditions under which prescribed fires Guidance is not an EPA rule, and in data applications. Once available, the could qualify as exceptional events, specific cases the EPA may depart from EPA intends to post both draft guidance which include the use of smoke the guidance for reasons that the EPA documents on the exceptional events management programs (SMP) and the will explain at the time of the action. As Web site at http://www2.epa.gov/air- application of basic smoke management noted by commenters, while many of quality-analysis/treatment-data- practices (BSMP). We also discuss that the technical analyses included in the influenced-exceptional-events. document may also be applied to while exceptional events B. Entities Affected by This Rule demonstrations and data exclusions prescribed fire events, the guidance requests must be submitted by the document does not specify how Entities potentially affected directly affected state/tribal agency(ies), or with demonstrations for prescribed fire by this final rule and associated their concurrence, we support and events can address all promulgated rule guidance include all state air agencies encourage federal land managers requirements. The public comment and local air quality agencies to which (FLMs), other federal agencies and air period for the Draft Guidance on the a state has delegated relevant agencies to work collaboratively to Preparation of Exceptional Events responsibilities for air quality prepare and submit exceptional events Demonstrations for Wildfire Events that management, including air quality demonstrations and data exclusion May Influence Ozone Concentrations monitoring and data analysis. Tribal air requests. ran simultaneously with the comment agencies operating ambient air quality period on the proposed rule revisions In keeping with the EPA’s mission to monitors that produce regulatory data and closed on February 3, 2016. The protect public health and after seeking may also be directly affected. Entities EPA received 31 comments on the draft comment on approaches ranging from potentially affected indirectly by this guidance during the public comment retaining the existing ‘‘mitigation’’ rule final rule and related guidance include period. The EPA summarizes and requirements to promulgating new FLMs of Class I areas, other federal discusses these comments in a mitigation-related rule components, we agencies and other entities that operate document that accompanies the final are promulgating in regulatory language ambient air quality monitors and submit guidance document. Both the public the requirement to develop mitigation collected data to the EPA’s Air Quality comments received on the draft System (AQS) database. plans in areas with ‘‘historically guidance and the EPA’s discussion documented’’ or ‘‘known seasonal’’ document are available in the docket at C. Obtaining a Copy of This Document exceptional events. This action http://www.regulations.gov (Docket ID and Other Related Information indicates those areas to which this No. EPA–HQ–OAR–2015–0229). In addition to being available in the requirement newly applies and makes Based on feedback from interested docket, we will post an electronic copy clear that the EPA will not concur with parties on the proposed rule revisions of this Federal Register document and certain exceptional events and the draft Wildfire Guidance, we the final guidance at http:// demonstrations if an air agency has not intend to develop supplementary www2.epa.gov/air-quality-analysis/ submitted the related required guidance to assist air agencies in treatment-data-influenced-exceptional- mitigation plan within 2 years of the addressing the Exceptional Events Rule events. effective date of this action. criteria for prescribed fire on wildland. In addition to finalizing revisions to This guidance will focus on analyses D. Judicial Review the 2007 Exceptional Events Rule, this and supporting documentation Under CAA section 307(b)(1), judicial action simultaneously announces the recommended to show that prescribed review of this final action is available availability of a final non-binding fire events on wildland were unlikely to only by filing a petition for review in guidance document titled Guidance on recur at a particular location and were the United States Court of Appeals for the Preparation of Exceptional Events not reasonably controllable or the District of Columbia Circuit by Demonstrations for Wildfire Events that preventable. We intend to post the draft December 2, 2016. Under CAA section May Influence Ozone Concentrations guidance for prescribed fires and 307(b)(2), the requirements established (Wildfire Guidance), which applies the instructions for providing public by this final rule may not be challenged Exceptional Events Rule Revisions to comment on the exceptional events Web separately in any civil or criminal wildfire events that may influence site at http://www2.epa.gov/air-quality- proceedings brought by the EPA to ozone levels. The EPA prepared this analysis/treatment-data-influenced- enforce the requirements. guidance document to further address exceptional-events shortly after specific stakeholder questions regarding finalizing these rule revisions. E. Organization of this Federal the Exceptional Events Rule and further Also based on feedback from Register Document increase the efficiency of rule interested parties, we intend to develop The information presented in this implementation. supplementary guidance to describe document is organized as follows:
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I. General Information C. Comments and Responses NWS National Weather Service A. Executive Summary VI. Environmental Justice Considerations OAQPS Office of Air Quality Planning and B. Entities Affected by This Rule VII. Statutory and Executive Order Reviews Standards, U.S. EPA C. Obtaining a Copy of This Document and A. Executive Order 12866: Regulatory OMB Office of Management and Budget Other Related Information Planning and Review and Executive Pb Lead D. Judicial Review Order 13563: Improving Regulation and PM Particulate matter E. Organization of this Federal Register Regulatory Review PM10 Particulate matter with a nominal Document B. Paperwork Reduction Act (PRA) mean aerodynamic diameter less than or II. Glossary of Terms and Acronyms C. Regulatory Flexibility Act (RFA) equal to 10 micrometers III. Overview of Exceptional Events Statutory D. Unfunded Mandates Reform Act PM2.5 Particulate matter with a nominal Authority, Regulation and (UMRA) mean aerodynamic diameter less than or Implementation E. Executive Order 13132: Federalism equal to 2.5 micrometers IV. Final Rule Revisions F. Executive Order 13175: Consultation PRA Paperwork Reduction Act A. Applicability of the Exceptional Events and Coordination With Indian Tribal PSD Prevention of significant deterioration Rule: Affected Entities and Pollutants Governments RACM Reasonably available control 1. Summary of Proposal G. Executive Order 13045: Protection of measures 2. Final Rule Children From Environmental Health RACT Reasonably Available Control 3. Comments and Responses and Safety Risks Technology B. Definition and Scope of an Exceptional H. Executive Order 13211: Actions RFA Regulatory Flexibility Act Event Concerning Regulations That SIP State implementation plan 1. Summary of Proposal Significantly Affect Energy Supply, SMP Smoke management program(s) 2. Final Rule Distribution or Use SO2 Sulfur dioxide 3. Comments and Responses I. National Technology Transfer and TAR Tribal Authority Rule C. Ambient Concentration Data and Data Advancement Act TIP Tribal implementation plan Uses Affected by the Exceptional Events J. Executive Order 12898: Federal Actions Tpy Tons per year Rule To Address Environmental Justice in UMRA Unfunded Mandates Reform Act 1. Summary of Proposal Minority Populations and Low-Income USB U.S. background 2. Final Rule Populations USDA U.S. Department of Agriculture 3. Comments and Responses K. Congressional Review Act (CRA) VOC Volatile organic compound or D. Definition and Scope of a Natural Event VIII. Statutory Authority compounds 1. Summary of Proposal II. Glossary of Terms and Acronyms III. Overview of Exceptional Events 2. Final Rule Statutory Authority, Regulation and 3. Comments and Responses The following are abbreviations of E. Technical Criteria for the Exclusion of terms used in the preamble. Implementation Data Affected by Events AQCR Air Quality Control Region The EPA’s mission includes 1. Human Activity Unlikely To Recur at a AQS Air Quality System preserving and improving, when Particular Location or a Natural Event BACM Best Available Control Measures needed, the quality of our nation’s 2. Not Reasonably Controllable or BACT Best Available Control Technology ambient air to protect human health and Preventable BLM Bureau of Land Management the environment as provided by the 3. Clear Causal Relationship Supported by BMP Best management practice(s) CAA. To accomplish this, the EPA a Comparison to Historical BSMP Basic smoke management practices Concentration Data develops the NAAQS for criteria CAA Clean Air Act pollutants and oversees the states’ F. Treatment of Certain Events Under the CASTNET Clean Air Status and Trends Exceptional Events Rule Network programs to improve air quality in areas 1. Transported Pollution CBI Confidential business information where the current air quality is not in 2. Wildland Fires CBSA Core based statistical area attainment with the NAAQS and to 3. Stratospheric Ozone Intrusions CFR Code of Federal Regulations prevent deterioration in areas where the 4. High Wind Dust Events CO Carbon monoxide air quality meets or exceeds the G. Other Aspects of Identifying Exceptional EPA Environmental Protection Agency NAAQS. The EPA then evaluates the Events-Influenced Data and FIP Federal implementation plan Demonstration Submittal and Review status of the ambient air as compared to FLM Federal land manager responsible for these NAAQS using data collected in 1. Aggregation of Events management of a federally owned area that 2. Demonstrations With Respect to has been designated a Class I area as the national ambient air quality Multiple NAAQS for the Same Pollutant codified in 40 CFR part 81, subpart D monitoring network established under 3. Exclusion of Entire 24-hour Value FR Federal Register the authority of section 319(a) of the Versus Partial Adjustment of the 24-Hour LAER Lowest Achievable Emission Rate CAA. Value for Particulate Matter mg/m3 Micrograms per cubic meter Congress recognized that it may not 4. Flagging of Data CH4 Methane be appropriate for the EPA to use certain 5. Initial Notification of Potential Mph Miles per hour monitoring data collected by the Exceptional Event NAAQS National ambient air quality 6. Submission of Demonstrations ambient air quality monitoring network standard or standards and maintained in the EPA’s AQS in 7. Timing of the EPA’s Review of NEAP Natural Events Action Plan Submitted Demonstrations NEI National Emissions Inventory certain regulatory determinations. Thus, 8. Dispute Resolution Mechanisms NH3 Ammonia in 2005, Congress provided the statutory V. Mitigation NO2 Nitrogen dioxide authority for the exclusion of data A. Summary of Proposal NOAA National Oceanic and Atmospheric influenced by ‘‘exceptional events’’ 1. Defining Historically Documented or Administration meeting specific criteria by adding Known Seasonal Events NOV Notice of violation section 319(b) to the CAA. To 2. Mitigation Plan Components NOX Nitric oxides implement this 2005 CAA amendment, 3. Options for Implementing Mitigation NPRM Notice of proposed rulemaking the EPA promulgated the 2007 Plans NPS National Park Service B. Final Rule NRCS Natural Resources Conservation Exceptional Events Rule (72 FR 13560, 1. Defining Historically Documented or Service March 22, 2007). Known Seasonal Events NRDC Natural Resources Defense Council The 2007 Exceptional Events Rule 2. Mitigation Plan Components NWCG National Wildfire Coordinating created a regulatory process codified at 3. Implementing Mitigation Plans Group 40 CFR parts 50 and 51 (sections 50.1,
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50.14 and 51.930). These regulatory rule provisions.5 Regarding the proposed rulemaking (NPRM) on sections, which superseded the EPA’s definition of a natural event, the D.C. November 20, 2015 (80 FR 72840) titled previous guidance on handling data Circuit Court determined that NRDC did ‘‘Treatment of Data Influenced by influenced by events,2 contain not identify its objection during the Exceptional Events’’ (proposed definitions, procedural requirements, rulemaking process and, therefore, did Exceptional Events Rule Revisions) to requirements for air agency not have standing under CAA section address certain substantive issues raised demonstrations, criteria for the EPA’s 307 to challenge the definition. NRDC by state, local and tribal co-regulators approval of the exclusion of event- also challenged the preamble language and other stakeholders and to increase affected air quality data from the data addressing high wind events. Because the administrative efficiency of the set used for regulatory decisions and the EPA did not address the subject high Exceptional Events Rule criteria and requirements for air agencies 3 to take wind preamble language in final rule process. appropriate and reasonable actions to text, the D.C. Circuit Court determined Although the EPA has undertaken this protect public health from exceedances the high wind events section of the 2007 notice-and-comment rulemaking effort or violations of the NAAQS.4 preamble to be a legal nullity. to provide clarity and increase the Shortly after promulgation, the Air agencies affected by the 2007 rule administrative efficiency of the Natural Resources Defense Council also raised questions regarding Exceptional Events Rule demonstration (NRDC) brought a petition for judicial interpretation and implementation. The submittal process, the EPA recognizes review challenging certain aspects of the EPA acknowledges that applying the that developing some exceptional events 2007 rule, including the EPA’s provisions of the 2007 Exceptional demonstrations may still be challenging definition of a natural event and several Events Rule has been a challenging given the case-by-case nature of each statements in the preamble concerning process both for the air agencies event. For this reason, throughout the the types of events that could qualify as developing exceptional events preamble to this final action, we provide being eligible for exclusion under the demonstrations and for the EPA recommendations for language and Regional offices reviewing and acting on analyses to include in demonstration 2 Previous guidance and policy documents that these demonstrations. In response to packages (see, for example, language in either implied or stated the need for special these challenges, in May 2013, after Sections IV.E of this preamble, treatment of data affected by an exceptional event extensive outreach culminating in the Technical Criteria for the Exclusion of include: EPA issuing a Federal Register Notice of Data Affected by Events, and IV.F, (i) Guideline for the Interpretation of Air Quality Availability 6 seeking broad public Standards, U.S. EPA, OAQPS No. 1.2–008, Revised Treatment of Certain Events Under the February 1977. Available from the National Service review, the EPA finalized the Interim Exceptional Events Rule). Additional Center for Environmental Publications through its Exceptional Events Implementation detail regarding specific document search, retrieval and download Guidance and made these documents recommendations is available in the capabilities at https://www.epa.gov/nscep. publicly available on the exceptional (ii) Guideline on the Identification and Use of Air EPA’s guidance documents and on the Quality Data Affected by Exceptional Events (the events Web site at http://www2.epa.gov/ EPA’s exceptional events Web site, Exceptional Events Policy), U.S. EPA, OAQPS, air-quality-analysis/treatment-data- which the EPA will update to 7 EPA–450/4–86–007, July 1986. influenced-exceptional-events. The incorporate the finalized rule changes (iii) Areas Affected by PM–10 Natural Events (the EPA simultaneously acknowledged the concurrently with or shortly after PM10 Natural Events Policy), memorandum from need to consider additional changes Mary D. Nichols, Assistant Administrator for Air promulgating the final rule. The EPA and Radiation, to the EPA Regional offices, May 30, through a notice-and-comment also intends to maintain and update the 1996. Available at http://www.epa.gov/ttn/caaa/t1/ rulemaking effort to revise the 2007 exceptional events submissions table on memoranda/nepol.pdf. Exceptional Events Rule. Informed by its Web site with examples of approved (iv) Interim Air Quality Policy on Wildland and feedback received during the Prescribed Fires, U.S. EPA. April 23, 1998. submissions. These examples may help Available at http://www.epa.gov/ttn/oarpg/t1/ development of the Interim Exceptional air agencies develop demonstration 8 memoranda/firefnl.pdf. Events Implementation Guidance and packages; however, they may not (v) Guideline on Data Handling Conventions for feedback received during listening contain the minimum level of data or the PM NAAQS, U.S. EPA, OAQPS, EPA–454/R– sessions and best practice conference case-specific analyses necessary for all 98–017, December 1998. calls,9 the EPA issued a notice of 3 References to ‘‘air agencies’’ include state, local exceptional events demonstrations of and tribal air agencies responsible for implementing the same event type. The EPA 5 the Exceptional Events Rule. The regulatory text in NRDC v. EPA, 559 F.3d 561 (D.C. Cir. 2009). encourages air agencies to consult with 6 77 FR 39959 (July 6, 2012). the 2007 Exceptional Events Rule often uses ‘‘State’’ their EPA Regional office for further to apply to ‘‘air agencies.’’ In the context of flagging 7 The Interim Exceptional Events Implementation data and preparing and submitting demonstrations, Guidance includes: The Interim Guidance to guidance on specific demonstrations. the role of and options available to air agencies may Implement Requirements for the Treatment of Air also apply to federal land managers of Class I areas Quality Monitoring Data Influenced by Exceptional IV. Final Rule Revisions and other federal agencies managing federal land. Events, the Interim Exceptional Events Rule This final action supersedes the 2007 4 Frequently Asked Questions (the Interim Q&A Per the definition at 40 CFR 50.1(l), an Exceptional Events Rule and all natural exceedance with respect to a national ambient air document), and the Interim Guidance on the quality standard means one occurrence of a Preparation of Demonstrations in Support of events and exceptional events data measured or modeled concentration that exceeds Requests to Exclude Ambient Air Quality Data handling guidance developed prior to the specified concentration level of such standard Affected by High Winds under the Exceptional the 2007 Exceptional Events Rule. This Events Rule (the Interim High Winds Guidance for the averaging period specified by the standard. final action also supersedes the 2013 Violations of a standard are standard-specific and document). are determined by applying the standard-specific 8 See comments in Docket ID No. EPA–HQ–OAR– Interim Exceptional Events procedures for air quality data handling identified 2011–0887. Implementation Guidance until such in the appendices to 40 CFR part 50. For example, 9 The EPA hosted exceptional events listening time as the EPA can revise these per the requirements in 40 CFR part 50, appendix sessions in August and November of 2013 for documents to reflect the revisions N, an exceedance of the 2006 24-hour PM2.5 interested air agencies, FLMs, other federal NAAQS of 35 mg/m3 occurs when the 24-hour agencies, regional planning organizations, non- contained in these Exceptional Events concentration is above 35 mg/m3 on a single day. A governmental organizations and other members of violation of the 2006 24-hour PM2.5 NAAQS occurs the public. The EPA also held conference calls with summary of these implementation ‘‘best practices’’ when the 3-year average of the annual 98th some air agencies between September 2014 and is available at http://www2.epa.gov/air-quality- percentile 24-hour concentrations is above 35 mg/ March 2015 to further discuss exceptional events analysis/treatment-data-influenced-exceptional- m3. implementation processes and practices. A events.
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Rule Revisions. This final action document a process for working collected data to the EPA’s AQS accomplishes the objectives identified together to protect public health and database,12 and emissions from in the proposed Exceptional Events Rule manage air quality during the conduct exceptional events could affect these Revisions by promulgating rule of prescribed fires on wildland. Such same monitors. Third, allowing FLMs to language accompanied by explanation/ discussions must include outreach and prepare and submit demonstrations interpretation in the preamble and/or education regarding general directly to the EPA could expedite the presenting non-binding guidance in the expectations for the selection and exceptional events demonstration preamble. application of appropriate BSMP and development and submittal process. The The public comment period for the goals for advancing strategies and EPA solicited comment on our proposal proposed revisions to the Exceptional increasing adoption and communication to allow FLMs and other federal Events Rule closed on February 3, 2016. of the benefits of appropriate basic agencies to prepare and submit The EPA received 94 unique, timely smoke management practices; exceptional events demonstrations and comments on the proposed rule • Identified intended timelines for data exclusion requests directly to the revisions. The preamble to this final the EPA’s response in this preamble; EPA. In addition, the proposal rule discusses the most significant and explained that the final rule might comments received on the proposal and • Added required regulatory elements modify the provision that provided for how the EPA considered them in for mitigation plans for areas with FLMs and other federal agencies developing the agency’s final revisions known, recurring events. preparing and submitting exceptional to the Exceptional Events Rule. The We discuss all of these changes in events demonstrations and data Response to Comments document that more detail in this preamble. exclusion requests directly to the EPA (see 80 FR 72848). accompanies this final rule provides A. Applicability of the Exceptional more detailed responses to comments. The proposal also reiterated the EPA’s Events Rule: Affected Entities and interpretation that the Exceptional The public comments received on the Pollutants proposal and the EPA’s Response to Events Rule applies to all criteria Comments document are available in 1. Summary of Proposal pollutant NAAQS 13 based on the the docket at http://www.regulations.gov As noted in the proposal, the language in CAA section (Docket ID No. EPA–HQ–OAR–2013– Exceptional Events Rule applies to all 319(b)(3)(B)(iv), which applies to 0572). states, to local air quality agencies to exceedances or violations of ‘‘the As a result of feedback received whom a state has delegated relevant national ambient air quality standards.’’ during the public comment period, we responsibilities for air quality The EPA did not specifically request have changed the proposed regulatory management including air quality comment on this statement. text and/or non-binding guidance in the monitoring and data analysis, and to 2. Final Rule preamble in the following ways: tribal air quality agencies operating • Modified the provision for FLMs The Exceptional Events Rule ambient air quality monitors that continues to apply to all state air and other federal agencies to prepare produce regulatory data. The proposal and submit exceptional events agencies and to local air quality also included new provisions to allow agencies to which a state has delegated demonstrations to include a step for the FLMs and other federal agencies to concurrence of the affected state/tribal relevant responsibilities for air quality prepare and submit exceptional events management, including air quality air agency(ies); demonstrations and data exclusion • Modified the definition of an monitoring and data analysis. The requests directly to the EPA. We exceptional event to more clearly Exceptional Events Rule also continues included these provisions for the address drought conditions; to apply to tribal air quality agencies • Modified the list of regulatory following reasons, which we expressed operating ambient air quality monitors actions included within the scope of the in the proposal. First, the CAA language that produce regulatory data. All Exceptional Events Rule; at section 319(b)(3)(B)(i) provides affected air agencies, including tribal air • Revised the provision for reliance authority for FLMs to initiate and quality agencies, should use the Initial on controls in an EPA-approved SIP to submit such demonstrations and data Notification of Potential Exceptional satisfy the not reasonably controllable or exclusion requests in the language that Event process described in more detail preventable criterion by also including reads, ‘‘the occurrence of an exceptional in Section IV.G.5 of this preamble, to reliance on controls in FIPs and TIPs; event must be demonstrated by reliable, discuss with their EPA Regional office • Modified the required accurate data that is promptly produced the most appropriate approach to demonstration elements to support the and provided by Federal, State, or local implementing the provisions of the clear causal relationship criterion by government agencies.’’ Second, FLMs Exceptional Events Rule. moving the table of analyses from the and other federal agencies may operate 11 rule text to the preamble where it will regulatory monitors and submit 12 For a description of one network of monitoring serve as guidance; sites operated by federal agencies, see the 2014 • Added regulatory text requiring air party with this responsibility. Regardless of the CASTNET (Clean Air Status and Trends Network) terminology, the actions of the party responsible for Annual Network Plan, available at https://www3. agencies, federal land managers and prescribed fire management must conform to and be epa.gov/castnet/docs/CASTNET_Plan_2014_ 10 burn managers to collaborate and consistent with any applicable local, state or federal Final.pdf, which applies to National Park Service laws and regulations, where these laws and (NPS) and Bureau of Land Management (BLM) site 10 Throughout this preamble and the associated regulations exist. managers operating CASTNET monitors. final rule text, we use the terminology ‘‘burn 11 The Ambient Air Quality Surveillance 13 There are NAAQS for carbon monoxide (CO), manager’’ to mean the party responsible for provisions in 40 CFR part 58 include, among other lead (Pb), nitrogen dioxide (NO2), ozone, particle supervising a prescribed fire from ignition through elements, the requirements for monitoring data pollution and sulfur dioxide (SO2). This fire extinguishing and cleanup, or another party in certification and data submittal and archive in AQS. applicability includes the primary and secondary the same organization who represents, supervises or 40 CFR 58.3 provides that these data reporting NAAQS. At present, most of the secondary NAAQS is supervised by said party and can be a requirements specifically apply to state air are identical to the primary NAAQS for the same communications pathway to and from such person. pollution control agencies and any local air pollutant, so there is no distinction in how the Different organizations, states, local agencies and pollution control agency to which the state has Exceptional Events Rule applies. To date, the EPA tribes may use the terms burn manager, burn boss, delegated authority to operate a portion of the has not encountered an exceptional event situation fire manager or another similar term to describe the state’s monitoring network. with respect to a non-identical secondary NAAQS.
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After considering the public accordance with 40 CFR and the requirements related to comments, as explained in subsequent 50.14(a)(1)(ii)(A)(2), which requires that schedules and procedures for paragraphs and the response to a demonstration-specific concurrence demonstration submittal that apply to comments below, we are finalizing a from the air agency accompany each state agencies that operate the affected modified version of our proposal, under submittal. The FLM would include the monitors. Regardless of the approach which FLMs and other federal agencies concurrence with its submission to the selected, the EPA encourages could prepare and submit exceptional EPA. discussions between the FLM and the events demonstrations and data • An air agency could agree, on a affected state/tribal air agency(ies) exclusion requests directly to the EPA if case-by-case basis, to allow an FLM or similar to those described in the Initial the affected state/tribal air agency(ies) other federal agency to develop and Notification of Potential Exceptional concurs.14 Presumably, demonstrations submit a complete demonstration for an Event process (see Section IV.G.5 of this and requests for exclusion prepared and event or events directly to the EPA. preamble) to ensure that the FLM and submitted by FLMs or other federal Under this scenario, the air agency the air agency(ies) share a common agencies would address prescribed fires could notify the EPA during the Initial understanding regarding the potential or wildfires occurring on federally- Notification of Potential Exceptional event, share relevant information and owned and managed land that influence Event process that an FLM will submit data, and understand the timeline for concentrations at regulatory monitors demonstration(s) for a particular flagging data in AQS and submitting the either on federally-owned and managed event(s) or particular types of events, demonstration. A number of areas have land or at state, local, or tribal specifying the event type(s), pollutant(s) established local or regional regulatory monitors. Although the EPA and date(s). An air agency selecting this collaboratives whose goals include is deferring the appropriate mechanism option would need to provide the improving the health of local for concurrence to the affected state or submitting FLM or other federal agency ecosystems (e.g., wildlands), increasing tribal air agency(ies) in accordance with with a case-by-case concurrence, in community resiliency to wildfire, 40 CFR 50.14(a)(1)(ii)(A)(2), the EPA can accordance with 40 CFR communicating air quality and public envision several acceptable approaches, 50.14(a)(1)(ii)(A)(2), which the FLM health impacts and communicating the some of which follow. would include with its submission to results and benefits of prescribed fire • An air agency could provide written the EPA. management and implementation authorization to the FLMs or other • The air agency could ask the FLM programs.16 federal agencies owning land or to prepare the agreed-upon Also related to the entities affected by operating air quality monitoring stations demonstration for submittal to the the Exceptional Events Rule, the to prepare and directly submit affected air agency. The FLM would proposal asserted that, as the single exceptional events demonstrations to then independently prepare the actor responsible for administering air the EPA. Any such authorization must demonstration and submit it to the quality planning and management conform to and be consistent with any affected air agency. The air agency, in activities within its jurisdictional applicable state laws and regulations. turn, could submit the demonstration to boundaries, the state, exclusive of tribal The written authorization (i.e., letter the EPA with a cover letter indicating lands, is ultimately responsible for from the air agency official responsible that the FLM or federal agency prepared submitting exceptional events for preparing demonstrations) would the demonstration, that the affected demonstrations for exceedances that specify the conditions under which the state/tribal air agency agrees with the occur at all regulatory monitoring sites FLM could submit a demonstration content and the affected state/tribal air within the boundary of the state. While directly to the EPA and whether the agency requests that the EPA review and the state can request that FLMs or other FLM could initiate the Initial take action on the submitted federal agencies or local agencies to Notification of Potential Exceptional demonstration. which a state has authorized relevant • Event (either with or without including Another option might consist of the responsibilities develop and submit the affected air agency(ies) in this air agency and the affected FLM exceptional events demonstrations for process). The affected air agency would collaboratively developing events that influence concentrations at submit a copy of the authorization to the demonstrations for submittal by the regulatory monitors operated by these reviewing EPA Regional office either in affected air agency. In this scenario, the entities, the state can always submit advance of the demonstration submittal air agency and the FLM would likely demonstrations for events that meet the and/or with the Initial Notification of agree to a division of responsibilities for requirements of the Exceptional Events Potential Exceptional Event process specific analyses or sections of a Rule for any regulatory monitor within associated with a specific event or demonstration. its jurisdictional bounds, including events. An air agency selecting this If an air agency agrees that FLMs or those operated by FLMs, other federal option would need to provide the other federal agencies may prepare and agencies and delegated local agencies. The state retains the authority to decide submitting FLM or other federal agency submit exceptional events with a case-by-case concurrence in demonstrations and data exclusion requests directly to the EPA, then the quality data, with or without such exclusions, in a final regulatory action. States typically provide an 14 We note that any agency, group or individual FLM-prepared demonstrations must opportunity for public comment by posting draft could submit an exceptional events demonstration. meet all of the provisions in the demonstrations on a Web site. Federal agencies However, the EPA is obligated to consider only Exceptional Events Rule, including the could do the same. those submittals that meet the requirements of this requirement for a public comment 16 See, for example, the Fire Memorandum of final rule and come from authorized agencies (i.e., 15 Understanding (MOU) Partnership, consisting of all states; local air quality agencies to whom a state period on a prepared demonstration multiple state and federal forestry agencies, has delegated relevant responsibilities for air prescribed fire councils and conservation agencies, quality management including air quality 15 A public comment opportunity is important who work collaboratively with air agencies in monitoring and data analysis; tribal air quality prior to submission to the EPA because under the California to resolve issues related to managed fire agencies operating ambient air quality monitors that Exceptional Events Rule, the EPA is not required to and protection of public health. Additional produce regulatory data; and FLMs or other federal provide a public comment opportunity prior to information available at http:// agencies to whom the relevant state has granted concurring or non-concurring with an air agency’s www.sierraforestlegacy.org/CF_ManagingFire/ approval). Further, the EPA cannot take action on request to exclude data. The EPA generally provides FireMOU.php and in comment number EPA–HQ– material submitted by an unauthorized party. a public comment opportunity before using air OAR–2013–0572–0138.
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whether to concur with and forward an and that the protection of air quality and helping states and tribes improve the air exceptional events submittal generated public health may not be a primary quality in those areas that do not meet by another agency. For example, if a objective. Some of these same the NAAQS. The General Conformity state does not concur with the local commenters noted that while the Rule requires that federal agencies work agency’s, FLM’s, other federal agency’s proposed rule language at 40 CFR with state, tribal and local governments or other entity’s exceptional events 50.14(a)(l)(ii)(A)(2) allowed another in nonattainment and maintenance claim, the state can decide not to agency to initiate a request ‘‘only after areas to ensure that federal actions forward the submittal to the EPA even discussing such submittal with the State conform to any applicable SIP, FIP or if the state has authorized the federal or in which the affected monitor is TIP. However, because states and tribes local government agencies (who are also located,’’ ‘‘discussing’’ does not require are ultimately responsible for authorized by the CAA to produce and ‘‘agreement’’ from the state or a administering air quality management provide data) to prepare and submit requirement that the FLM incorporate programs within their borders, which demonstrations directly to the EPA. At the state’s feedback into its submittal. could include addressing air quality and the suggestion of several commenters, These commenters stated that, under the health impacts from wildfire emissions, the EPA is adding regulatory language to proposed requirements, an FLM could the EPA is finalizing a modified version 40 CFR 50.14(a)(1)(ii) to clarify this submit a request to exclude data over of our proposal, under which FLMs and point. Where questions arise, the the objections of the state with primary other federal agencies could prepare and reviewing EPA Regional office can responsibility to regulate air quality, submit exceptional events provide assistance and direction as part which could potentially create legal demonstrations and data exclusion of the Initial Notification of Potential conflicts between agencies. Another requests directly to the EPA with the Exceptional Event process. In addition commenter suggested allowing FLMs to agreement of the affected state/tribal air to requesting that FLMs, other federal submit demonstrations only for agency(ies). We believe that this agencies or delegated local agencies regulatory monitors owned by the FLM approach, which requires the agreement prepare or assist in the preparation of or located on FLM-managed land rather of the affected state/tribal air demonstration analyses, a state can also than for state-owned and operated agency(ies), could encompass all of the request the same of industrial facilities monitors influenced by an event (e.g., alternative approaches noted by operating regulatory monitors fire) on FLM-managed land. Two states commenters representing state, local experiencing event-influenced and one industry association commenter and regional planning organizations. exceedances. The EPA cannot act on suggested following an approach Deferring the approach to achieve demonstrations submitted directly by allowing, on a case-by-case basis, FLMs agreement to the affected air agencies industrial facilities. The authorizing to submit demonstrations and requests provides individual air agencies with state is responsible, at its discretion, for for data exclusion if the affected state/ the flexibility to account for any state/ submitting demonstrations prepared by tribal air agency(ies) agrees and if the tribal-specific authorities that may limit industrial entities. FLM works with the affected state/tribal an agency’s ability to regulate certain Consistent with our proposal, we are air agency(ies) through the types of air quality concerns. Fire plays also promulgating regulatory language at demonstration development and a critical role in restoring resilient 40 CFR 50.14(a)(1)(i) that the submittal process. ecological conditions in our wildlands. Exceptional Events Rule applies to the In addition, the increased use of treatment of data showing exceedances The EPA continues to believe that prescribed fire and managed wildfire or violations of any criteria pollutant allowing FLMs to prepare and submit can reduce the effects of catastrophic NAAQS. AQS retains the capability for demonstrations directly to the EPA wildfire. The EPA strongly encourages air agencies to flag all criteria pollutant could expedite the exceptional events collaboration between the FLMs and data and for the EPA to concur, as demonstration development and other federal agencies and the appropriate, on requests for exclusion. submittal process because, in many appropriate state/tribal air agency(ies) cases, the lands managed and/or owned 3. Comments and Responses during the event identification and by federal entities are not entirely demonstration development process Although three commenters agreed within the jurisdictional boundary of a regardless of who ultimately submits the with the EPA’s proposal to allow FLMs single state or local government and demonstration. and other federal agencies to initiate a because federal entities may either Also concerning the entities affected request for data exclusion if the FLM initiate prescribed fires or fight wildfires by the Exceptional Events Rule, one either operates a regulatory monitor that on lands managed and/or owned by commenter asked for clarification has been affected by an exceptional federal entities. We also recognize that regarding whether industrial facilities event or manages land on which an under the CAA, states, exclusive of operating regulatory monitors can exceptional event occurred that tribal lands, are primarily responsible submit demonstrations directly to the influenced a monitored concentration at for the administration of air quality EPA. Other commenters asked that the a regulatory monitor, the large majority management programs within their EPA clarify whether states and tribes of commenters disagreed with this borders, which includes monitoring and can always submit demonstrations for proposed provision. State and local air analyzing ambient air quality, any monitors within their jurisdictional agencies, as well as several regional submitting monitoring data to the EPA, bounds. These commenters also asked planning organizations, commented that which are then stored in the EPA’s AQS whether the EPA would allow and/or it is inappropriate for the EPA to allow database, and identifying measurements evaluate ‘‘competing’’ demonstrations. agencies that are not directly that may warrant special treatment The EPA notes in the final rule responsible and accountable for under the Exceptional Events Rule. As section of this preamble that while managing and/or assuring air quality to commenters have noted, and as the EPA industrial facilities may operate submit exceptional event recognizes, FLM submittal of regulatory monitors that experience demonstrations or data exclusion exceptional events demonstrations and event-influenced exceedances and, at requests. Several commenters noted that air agency objectives for air quality the request of the state, such facilities FLMs and other federal agencies may management may conflict. Federal land may prepare demonstrations for these have different functions and priorities managers do play an important role in exceedances, the EPA cannot act on
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demonstrations submitted directly by EPA’s implementing regulatory management including air quality industrial facilities. The CAA language language at 40 CFR 50.14(b)(1) says that monitoring and data analysis; and to at section 319(b)(3)(B)(i) reads, ‘‘the the EPA shall exclude data from use in tribal air quality agencies operating occurrence of an exceptional event must determinations of exceedances and ambient air quality monitors that be demonstrated by reliable, accurate NAAQS violations where a state produce regulatory data. Throughout the data that is promptly produced and demonstrates to the EPA’s satisfaction preamble and regulatory language provided by Federal, State, or local that an exceptional event caused a associated with this final action, we use government agencies.’’ Additionally, the specific air pollution concentration in the terminology ‘‘state,’’ ‘‘tribe’’ and ‘‘air CAA language at 319(b)(3)(B)(iv) excess of one or more NAAQS. The agency’’ somewhat interchangeably. requires that the EPA’s implementing language ‘‘where a State demonstrates’’ Footnote 3 in this document clarifies regulations provide that ‘‘there are has historically been interpreted to that references to ‘‘air agencies’’ are criteria and procedures for the Governor mean that only states can initiate the meant to include state, local and tribal of a State to petition the Administration exceptional events process and submit air agencies responsible for to exclude air quality monitoring demonstrations. A state may delegate implementing the Exceptional Events data. . . .’’ Under the CAA, states, the authority for preparing and Rule. The regulatory text in the 2007 exclusive of tribal lands, are primarily submitting demonstrations to local Exceptional Events Rule often uses responsible for the administration of air government agencies that are authorized ‘‘State’’ to apply to ‘‘air agencies.’’ To be quality management programs within by the CAA to produce and provide an affected entity for purposes of this their borders. States can delegate data. In this action, the EPA is rule, the air agency must first operate relevant responsibilities for air quality promulgating regulatory language that one or more ambient air quality management to local agencies, but the authorizes federal agencies to prepare monitors that produce regulatory data. CAA does not provide for delegation of and submit demonstrations if the The provisions of this rule apply these responsibilities to industrial affected state concurs, on a case-by-case uniformly to state and tribal air agencies facilities. Where industrial facilities basis, on the preparation and (and to authorized federal and local operate regulatory monitors, the state is submission of demonstrations by those agencies) that meet this condition. ultimately responsible for ensuring that federal agencies. Submissions by Tribal air quality agencies that operate collected data are uploaded into AQS delegated local agencies and/or state- air quality monitoring networks that and for verifying the accuracy of these concurred demonstrations by federal produce regulatory data that are affected data. Thus, the authorizing state, at its agencies have the effect of a state by emissions from exceptional events discretion, is responsible for submitting ‘‘demonstration.’’ Additionally, the state should consult with the EPA Regional any demonstrations prepared by maintains the ultimate responsibility for office prior to addressing the procedures industrial entities. The EPA has also submitting exceptional events and requirements associated with clarified in the preamble that a state (or demonstrations for events influencing excluding data that have been tribe) can always submit demonstrations concentrations at any regulatory influenced by exceptional events. As we for events that meet the requirements of monitor within its jurisdictional have in the past, the EPA will continue the Exceptional Events Rule for any bounds. to work with tribes in implementing the Two tribal commenters asked the EPA regulatory monitor within its provisions of the Exceptional Events to clarify how the provisions in the jurisdictional bounds, including those Rule, including these rule revisions. operated by FLMs, other federal Exceptional Events Rule apply to tribes. agencies, delegated local agencies, and One of these commenters asked that this We neither solicited nor received industrial facilities. We have added clarification include regulatory text to comment regarding applying the regulatory language to 40 CFR define ‘‘state’’ and ‘‘tribe.’’ The EPA is provisions of the Exceptional Events 50.14(a)(1)(ii) to clarify this point. not adding regulatory text to define Rule to the treatment of data showing Another commenter noted that CAA ‘‘state’’ and ‘‘tribe,’’ but instead intends exceedances or violations of any criteria section 319(b)(3)(B)(i) provides that ‘‘the to apply the definitions set forth in the pollutant NAAQS and we are making no occurrence of an exceptional event must Tribal Authority Rule (TAR) at 40 CFR changes to the rule with respect to this be demonstrated by reliable, accurate 49.2. At 40 CFR 49.2(c), an Indian tribe issue. data that is promptly produced and or tribe is defined as ‘‘any Indian tribe, B. Definition and Scope of an provided by Federal, State, or local band, nation, or other organized group Exceptional Event government agencies.’’ The commenter or community, including any Alaska maintains that this provision allows Native village, which is federally 1. Summary of Proposal federal, state or local government recognized as eligible for the special agencies to produce and provide data, programs and services provided by the The EPA proposed and solicited but not to prepare and submit United States to Indians because of their comment on the following generally demonstrations. status as Indians.’’ Section 40 CFR applicable changes to the 2007 The EPA agrees that the identified 49.2(e) defines a state as ‘‘a State, the Exceptional Events Rule with respect to CAA language grants specific authority District of Columbia, the clarifying what constitutes an to state, federal and local government Commonwealth of Puerto Rico, the exceptional event: agencies to produce and provide data. Virgin Islands, Guam, and American • Revising the definition of The EPA also notes, however, that Samoa and includes the Commonwealth exceptional event by including the nothing in the CAA language at 319 of the Northern Mariana Islands.’’ concept of considering the combined explicitly restricts federal and local We further clarify the applicability to effects of an event and the resulting government agencies from submitting tribes by reiterating the language that emissions. demonstrations if the state agrees. appears in Section IV.A.1 of this • Section 319(b)(3)(B)(iv) of the CAA preamble, which states that the Removing the ‘‘but for’’ element. directs the EPA to develop criteria and Exceptional Events Rule applies to all • Moving the ‘‘clear causal procedures for the ‘‘Governor of a State states; to local air quality agencies to relationship’’ element into the list of to petition the Administrator to exclude whom a state has delegated relevant criteria that explicitly must be met for air quality monitoring data. . . .’’ The responsibilities for air quality data to be excluded.
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• Subsuming the ‘‘affects air quality’’ clear provisions of the CAA. The light of a mandatory clear causal element into the ‘‘clear causal proposal stated the EPA’s belief that relationship showing. The proposal relationship’’ element. Congress intended air agencies to expressed that if an air agency • Removing the requirement to compensate for the effects of high demonstrates that an event has a clear provide evidence that the event is temperature, stagnation and inversions causal relationship to an exceedance or associated with a measured through the development of SIPs. violation of a NAAQS, then the event concentration in excess of ‘‘normal In our November 2015 action, the EPA has certainly affected air quality. historical fluctuations including proposed to rely more directly upon the Finally, the EPA proposed to remove background’’ and replacing it with a statutory requirement at CAA section the requirement for air agencies to requirement for a comparison of the 319(b)(3)(B)(ii) by removing the provide evidence that the event is event-related concentration to historical regulatory requirement at 40 CFR associated with a measured concentrations. 50.14(c)(3)(iv)(D) that ‘‘there would concentration in excess of ‘‘normal The proposal provided a detailed have been no exceedance or violation historical fluctuations including rationale for each of these proposed but for the event’’ (i.e., the ‘‘but for’’ background’’ and replace it with a changes, which we summarize here. criterion). The proposal explained that requirement to compare the event- in the 2007 Exceptional Events Rule, the With respect to revising the definition influenced concentration to historical EPA derived the ‘‘but for’’ criterion from of an exceptional event by including the concentrations. The proposal clarified the language at CAA section combined effects of an event and the that an air agency does not need to 319(b)(3)(B)(ii), which requires ‘‘a clear resulting emissions, the proposal noted prove a specific ‘‘in excess of’’ fact in causal relationship . . . between the that a physical event may or may not developing these comparisons to measured exceedances . . . and the generate emissions and these emissions historical concentrations. The EPA exceptional event to demonstrate that may or may not reach a regulatory proposed these comparisons to support the exceptional event caused a specific monitor and result in an exceedance or the clear causal relationship criterion. air pollution concentration at a The proposal stressed that making violation of a NAAQS. Each of these particular air quality monitoring components (i.e., a physical event that these changes would result in returning location’’ 17 and the requirement that to the following three core statutory generates emissions, transport of event- there be ‘‘criteria and procedures for the generated pollution to a monitor, and an elements of CAA section 319(b) that air Governor of a State to petition the agencies must meet when requesting exceedance or violation at a regulatory Administrator to exclude. . .data that is monitor) is necessary for an event to that the EPA exclude event-related directly due to the exceptional concentrations from regulatory qualify as an exceptional event. The events.’’ 18 Air agencies and the EPA EPA would not consider the physical determinations: have, in some cases, historically • The event affected air quality in event (e.g., a high wind or the wildfire) interpreted the ‘‘but for’’ criterion as such a way that there exists a clear to be an exceptional event unless the implying the need for a strict causal relationship between the specific resulting event-generated pollution (e.g., quantitative analysis of the estimated air event and the monitored exceedance or particulate matter (PM) or ozone) quality impact from the event. To clarify violation, reached and caused an exceedance or the intended approach, the EPA • The event was not reasonably violation at a monitoring location or proposed removing the ‘‘but for’’ controllable or preventable, and locations. regulatory language and focusing on the • The event was a human activity that The EPA elaborated on this concept ‘‘clear causal relationship’’ statutory is unlikely to recur at a particular by providing several examples, one of criterion applied to the specific case, location or was a natural event. which was drought. The proposal stated using a weight of evidence approach. We proposed to include these core that while the CAA definition of an The proposal also modified the statutory elements in the revised exceptional event excludes ‘‘a regulatory language in 40 CFR regulatory definition of an exceptional meteorological event involving high 50.14(c)(3)(iv) to more clearly indicate, event. temperatures or lack of precipitation,’’ consistent with the CAA directive, the the EPA recognizes that high requirement to ‘‘demonstrate’’ versus to 2. Final Rule temperatures and drought conditions merely ‘‘provide evidence’’ that a clear As proposed, and as supported by can contribute to exceedances and causal relationship must exist between numerous commenters, we are violations caused by other exceptional the specific event and the monitored finalizing and incorporating into the events, such as high wind dust events. exceedance. Also consistent with regulatory definition of an exceptional The proposal further noted that if an air Congressional intent and air agencies’ event the following three core statutory agency submits evidence showing that a and the EPA’s experience in elements of CAA section 319(b) that air severe drought that resulted in arid implementing the 2007 Exceptional agencies must meet when requesting conditions (e.g., lower than typical soil Events Rule, the EPA proposed to that the EPA exclude event-related moisture content, decreased vegetation) integrate the phrase ‘‘affected air concentrations from regulatory was combined with an event (e.g., a quality’’ into the clear causal determinations: high wind event) that falls within the relationship criterion. The proposal • The event affected air quality in CAA definition of an exceptional event explained that separately requiring an such a way that there exists a clear and meets all of the requirements, air agency to provide evidence to causal relationship between the specific provisions and criteria in the support a conclusion that an event event and the monitored exceedance or Exceptional Events Rule, then these data ‘‘affects air quality’’ is unnecessary in violation, could be considered eligible for • The event was not reasonably exclusion under the provisions of the 17 The EPA believes that the terminology controllable or preventable, and Exceptional Events Rule. The proposal ‘‘specific air pollution concentration’’ refers to the • The event was a human activity that also stated that high temperatures, identified exceedance or violation rather than a is unlikely to recur at a particular specific increment in the measured concentration, stagnations and inversions alone would which implies quantitative source attribution and a location or was a natural event. not be eligible for exclusion under the supporting quantitative analysis. This section of the final rule preamble Exceptional Events Rule by the very 18 CAA section 319(b)(3)(B)(iv) (emphasis added). focuses on the definition of an
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exceptional event particularly as it definition also clarifies, at the individually. The EPA does not disagree incorporates these three elements. We suggestion of a commenter, our position that in the definition of exceptional discuss additional detail surrounding with respect to ‘‘meteorological events event, the CAA language at section the individual criteria (i.e., clear causal involving high temperatures or lack of 319(b)(1)(A)(i) specifically identifies relationship, not reasonably controllable precipitation’’ (i.e., severe, extreme or ‘‘affects air quality’’ as a defining term. or preventable and human activity/ exceptional drought). We include the CAA section 319 does not, however, natural event) in Section IV.E of this qualifiers ‘‘severe, extreme or provide any indication regarding how preamble, Technical Criteria for the exceptional drought’’ to distinguish an air agency should demonstrate that Exclusion of Data Affected by Events. drought categories from abnormally dry an event ‘‘affects air quality.’’ Rather, While we are incorporating the conditions. In using this language, we the requirements set forth at CAA previously identified elements into the incorporate by reference the conditions section 319(b)(3)(B) indicate that the definition of an exceptional event, after described in the U.S. Drought Monitor EPA’s implementing regulations shall considering the public comments, as available at http:// provide that (i) the occurrence of an discussed more fully in the following droughtmonitor.unl.edu/ and produced exceptional event must be demonstrated paragraphs, we are finalizing the through a partnership between the by reliable, accurate data that are following slightly modified version of National Drought Mitigation Center at promptly produced and provided by our proposed definition of an the University of Nebraska-Lincoln, the federal, state or local government exceptional event: Exceptional event United States Department of Agriculture agencies; (ii) a clear causal relationship means an event(s) and its resulting (USDA) and the National Oceanic and must exist between the measured emissions that affect air quality in such Atmospheric Administration (NOAA). exceedances of a NAAQS and the a way that there exists a clear causal 3. Comments and Responses exceptional event to demonstrate that relationship between the specific the exceptional event caused a specific event(s) and the monitored In considering the three core statutory air pollution concentration at a exceedance(s) or violation(s), is not elements of CAA section 319(b), we note particular air quality monitoring reasonably controllable or preventable, that both the not reasonably controllable location; (iii) there is a public process is an event(s) caused by human activity or preventable criterion and the human for determining whether an event is that is unlikely to recur at a particular activity/natural event criterion are from exceptional; and (iv) there are criteria location or a natural event(s), and is the statutory language defining the term and procedures for the Governor of a determined by the Administrator in ‘‘exceptional event’’ at CAA section state to petition the Administrator to 319(b)(1)(A). The criterion that the event accordance with 40 CFR 50.14 to be an exclude air quality monitoring data that affected air quality in such a way that exceptional event. It does not include are directly due to exceptional events there exists a clear causal relationship air pollution relating to source from use in determinations by the between the specific event and the noncompliance. Stagnation of air Administrator with respect to monitored exceedance or violation masses and meteorological inversions exceedances or violations of the combines the statutory ‘‘affects air do not directly cause pollutant NAAQS. In subsuming the ‘‘affects air quality’’ definitional element at CAA emissions and are not exceptional quality’’ element into the ‘‘clear causal section 319(b)(1)(A) with the ‘‘clear events. Meteorological events involving relationship’’ criterion we are simply causal relationship’’ statutory high temperatures or lack of defining the approach by which an air requirement at CAA section 319(b)(3)(B) precipitation (i.e., severe, extreme or agency must show that the event exceptional drought) also do not and removes the regulatory-only ‘‘but affected air quality. directly cause pollutant emissions and for’’ language. Because this section of are not considered exceptional events. the final rule preamble focuses on the Similarly, the large majority of However, events involving high definition of an exceptional event commenters supported, and three temperatures or lack of precipitation particularly as it incorporates the commenters representing environmental may promote occurrences of particular statutory elements, we address groups opposed, the EPA’s proposal to types of exceptional events, such as comments related to the statutory remove the ‘‘but for’’ criterion. The wildfires or high wind events, which do elements here and discuss the commenters opposing the removal of directly cause emissions. We presented application of each of these elements in the ‘‘but for’’ criterion explain that the this concept in the proposal (see 80 FR Section IV.E of this preamble. EPA correctly acknowledged in the 2007 72848), and the EPA is codifying it in Numerous commenters supported, rule that the ‘‘but for’’ criterion was the final rule to prevent confusion, as and one commenter representing several derived from the following two statutory explained below. environmental groups opposed, the requirements: (1) CAA section After considering the public EPA’s incorporating the ‘‘affects air 319(b)(3)(B)(ii), which requires ‘‘a clear comments received, as discussed as quality’’ criterion into the clear causal causal relationship . . . between the follows, we have included in the revised relationship element. Commenters measured exceedances . . . and the regulatory definition the concept of supporting this approach agreed with exceptional event to demonstrate that ‘‘event’’ or ‘‘events’’ to convey that one the EPA’s position that if an air agency the exceptional event caused a specific or more events and their resulting demonstrates that an event has a clear air pollution concentration at a emissions could be eligible for causal relationship to an exceedance or particular air quality monitoring consideration in the aggregate under the violation of a NAAQS, then the event location’’ and (2) CAA section provisions in 40 CFR 50.14. We have has certainly affected air quality and 319(b)(3)(B)(iv), which requires that the also revised the definitional language to that a submitting air agency does not EPA develop ‘‘criteria and procedures ‘‘monitored exceedance(s) or need to address ‘‘affects air quality’’ as for the Governor of a State to petition violation(s)’’ to indicate that a single a distinct component. The commenter the Administrator to exclude . . . data event can cause multiple NAAQS opposing this approach noted that the that is directly due to the exceptional exceedances or violations either EPA cannot escape the plain language of events.’’ (Emphasis added.) The occurring on the same day at multiple the CAA that ‘‘affects air quality’’ and commenters argue that the EPA’s monitors or occurring at one or more ‘‘clear causal relationship’’ are two proposal to rely more directly upon the monitors on multiple days. The revised requirements and must be addressed ‘‘clear causal relationship’’ statutory
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element effectively ignores the statutory proposal to remove this language and Another commenter suggested that, requirement that excluded data be ‘‘. . . replace it with regulatory text requiring for regulatory clarity, we incorporate directly due to the exceptional events.’’ a comparison of the event-influenced our interpretation of ‘‘meteorological The EPA disagrees with the commenters concentration to historical events involving high temperatures or on this point. While we are finalizing concentrations. We discuss comments lack of precipitation’’ (i.e., drought) into our proposal to remove the ‘‘but for’’ associated with this revision in Section regulatory text. We agree with the regulatory requirement, we are retaining IV.E.3.c of this preamble. commenter and have clarified, through the ‘‘direct causal’’ statutory language in Multiple commenters supported the the regulatory definition of an the regulatory definition of exceptional EPA’s proposal to revise the definition exceptional event, the position that we event. This revised regulatory language, of an exceptional event to include the expressed in the proposal preamble, along with our provided example event and resulting emissions. We have which is that drought alone does not analyses in this preamble (see Section also incorporated the suggestion of one create emissions and therefore does not IV.E.3 of this preamble) and in our commenter to indicate in regulatory meet the definition of an exceptional associated guidance documents, more text, through the plural word ‘‘events,’’ event. Rather, drought can result in arid clearly conveys the strength and that an aggregation of events and their conditions that can combine with or robustness of our intended weight of resulting emissions could be eligible for exacerbate the effects of events that evidence approach 19 and removes some consideration under the provisions in meet the requirements, provisions and of the challenges associated with 40 CFR 50.14. We discuss the criteria of the Exceptional Events implementing a strict ‘‘but for’’ aggregation of events in more detail in Rule.21 Because there may be many demonstration.20 Further, the ‘‘directly Section IV.G.1 of this preamble. We definitions of drought, we also clarify due’’ concept is represented through the believe that this concept also applies to that we are referring to ‘‘severe, extreme totality of the requirements in the exceedances and violations, so we or exceptional drought’’ as defined by revisions to the Exceptional Events Rule extended the use of plural terminology the U.S. Drought Monitor. We are not that we are promulgating, including that to this part of the exceptional events including other drought categories in a demonstration show a ‘‘clear causal definition to more clearly acknowledge this discussion, nor would other relationship’’ between ‘‘an event(s) and that an event may cause multiple drought categories alone be considered its resulting emissions’’ and ‘‘the exceedances (e.g., exceedances at exceptional events. monitored exceedance(s) or multiple monitors or multiple Also related to the definition of an violation(s).’’ exceedances at a single monitor) or exceptional event, one commenter asked Part of promulgating rule text that is violations. the EPA to include within the definition consistent with the core statutory Regarding exceedances and of an event both short-term and long- violations, one commenter asked the element that ‘‘the event affected air term contributors to elevated pollutant EPA to clarify whether values that are quality in such a way that there exists concentrations. The commenter further not themselves exceedances or a clear causal relationship between the asked the EPA to address the violations, but raise the design value specific event and the monitored applicability of the Exceptional Events such that the design value exceeds the exceedance or violation’’ involves Rule to ‘‘background’’ ozone and NAAQS can be considered as removing the regulatory requirement in background pollutant concentrations in exceptional events. The EPA recognizes 40 CFR 50.14(c)(3)(iv)(C) that a state general. The EPA does not agree with that events can make an air must submit evidence that the event is the commenter’s suggestion to add the concentration significantly higher than associated with a measured language or concept of ‘‘short-term and it would have been in the absence of the concentration in excess of normal event contribution and elevate the 3- long-term contributors’’ to the historical fluctuations, including year design value for a NAAQS regulatory definition of an exceptional background. We are finalizing our pollutant. However, the concentration event. The EPA believes that the values used in calculating a violating 3- definition that we are promulgating 19 As we indicated in our November 2015 year design value could be considered could include both short- and long-term proposal and in the preamble to the 2007 contributors provided the contributors Exceptional Events Rule, an air agency’s ‘‘but for’’ for exclusion under the Exceptional analysis does not necessarily need to be precise. Events Rule only if the concentration meet the operative provisions in the Rather, we indicated that the EPA would use a itself is an exceedance or results in a rule. The EPA will review each request holistic ‘‘weight of evidence’’ approach in analyzing violating design value. If the elevated under the Exceptional Events Rule on a submitted demonstration packages. The 2007 case-by-case basis using a weight of preamble further explained that a ‘‘weight of concentration is not itself an exceedance evidence demonstration can present a range of nor does it result in a violating design evidence approach. possible concentrations, which is not as technically value, then the value in question could With respect to addressing rule demanding as justifying a specific adjustment to a not be considered as an exceptional applicability to ‘‘background’’ ozone, measured value.’’ (See 72 FR 13570, March 22, the EPA refers to the recent 2007). event. As we explained in the proposal 20 Since promulgation of the 2007 rule, the ‘‘but and restate here, while not an Implementation of the 2015 Primary for’’ criterion has often been interpreted as implying exceptional event, retaining such data in Ozone NAAQS: Issues Associated with the need for a strict quantitative analysis to show the calculation of a design value can Background Ozone White Paper for a single value, or at least an explicitly bounded Discussion.22 As defined in this white plausible range, of the estimated air quality impact elevate the design value and, for a from the event. As a result, some air agencies began nonattainment area seeking the EPA’s paper, U.S. background (USB) ozone is using burdensome approaches to provide approval of an attainment quantitative analyses in their exceptional events demonstration, make it seem that the 21 Drought can also exacerbate the air quality demonstrations to show that the event in question impact of activities that do not meet the criteria of was a ‘‘but for’’ cause of a NAAQS exceedance or area needs more emissions reduction to the Exceptional Events Rule, such as dust from violation in the sense that without the event, the attain the NAAQS than is actually the vehicular travel on unpaved roads. exceedance or violation would not have occurred. case. Because these data are not 22 Implementation of the 2015 Primary Ozone In many cases, the ‘‘but for’’ role of a single source exceptional events, we do not address NAAQS: Issues Associated with Background Ozone or event is difficult to determine with certainty and White Paper for Discussion, U.S. EPA, December it is more often the case that the impact of exclusion under this rule. We do, 2015. Available at https://www.epa.gov/sites/ emissions from events and other sources cannot be however, discuss this scenario in more production/files/2016-03/documents/whitepaper- separately quantified and distinguished. detail in Section IV.C of this preamble. bgo3-final.pdf.
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any ozone formed from sources or unclassifiable/attainment, The proposal also noted that while processes other than U.S. manmade nonattainment or unclassifiable for a data exclusion associated with the five emissions of nitrogen oxides (NOX), particular NAAQS. Such designations actions in the previously noted bulleted volatile organic compounds (VOC), rely on the existence or lack of a list must follow the provisions in the methane (CH4), and CO.23 USB ozone violation at a monitoring site in or near Exceptional Events Rule, there are other does not include intrastate or interstate the area being designated. actions for which it may be appropriate transport of manmade ozone or ozone • The assignment or re-assignment of to exclude data using mechanisms other precursors. While some sources that a classification category (marginal, than the Exceptional Events Rule. The contribute to USB (e.g., wildfires, moderate, serious, etc.) to a proposal differentiated between these stratospheric intrusions) may be eligible nonattainment area to the extent this is five actions and other actions based on for treatment as exceptional events, based on a comparison of its ‘‘design ‘‘past’’ versus ‘‘predicted’’ exceedances other sources of USB would not meet value’’ to the established framework for and/or violations. The proposal the Exceptional Events Rule criteria. For such classifications. explained that the five identified actions example, routine or long-term • A determination regarding whether involve determinations of whether a international manmade emissions are a nonattainment area has attained a NAAQS exceedance or violation not exceptional events because they are NAAQS by its CAA deadline. occurred at an ambient monitoring site caused by human activity that is likely • A determination that an area has at a particular time in the past. We to recur at a given location; likewise, had only one exceedance in the year characterized these exceedances or routine biogenic VOC emissions are not prior to its deadline and thus qualifies violations as occurring in the ‘‘past’’ exceptional events because they are not for a 1-year attainment date extension, because the process of determining deviations from normal or expected if applicable. whether an actual exceedance or conditions. Thus despite being natural, • A finding of SIP inadequacy leading violation occurred involves reviewing they are not ‘‘events.’’ The EPA provides to a SIP call to the extent the finding the ambient air monitoring data additional information regarding the hinges on a determination that the area collected at monitoring sites over some treatment of certain events under the is violating a NAAQS. historical timeframe (e.g., the data have Exceptional Events Rule in Section IV.F In proposing this language, the EPA already been collected at the monitors, of this preamble. effectively applied the exceptional verified for quality assurance purposes, events process to these related types of submitted to AQS, and used in various C. Ambient Concentration Data and determinations and across the NAAQS, regulatory calculations). In short, the Data Uses Affected by the Exceptional which we believe is an appropriate collected monitoring data provide Events Rule interpretation of the CAA 319(b) phrase evidence that an exceedance or 1. Summary of Proposal ‘‘determinations by the Administrator violation actually happened. This In our November 2015 document, the with respect to exceedances or scenario is different than predicted EPA proposed in regulatory language to violations of national ambient air future NAAQS violations. The proposal interpret the CAA section 319(b) phrase quality standards.’’ For the identified explained that predictions of future ‘‘determinations by the Administrator types of determinations, the EPA NAAQS violation(s) generally involve with respect to exceedances or proposed to exclude event-affected data reviewing the historical ambient violations of national ambient air only if an air agency satisfies the concentration data that are the evident quality standards’’ to encompass procedural (e.g., event identification, focus of CAA section 319(b), estimating determinations of current 24 or historical opportunity for public comment, expected future emissions, and then NAAQS exceedances/violations or non- demonstration submission) and using both of these data sets as inputs exceedances/non-violations and substantive (i.e., clear causal to an air quality modeling tool or other determinations of the air quality ‘‘design relationship, not reasonably controllable analytical approach that extrapolates value’’ at particular receptor sites when or preventable, and human activity not these data to predict a future outcome. made as part of the basis for any of the likely to recur or natural event) While science supports, and the EPA following five types of regulatory requirements of the exceptional events relies on, predictions of future NAAQS actions: 25 process. The proposal also repeated the violations in several parts of the clean • An action to designate or EPA’s previous position that once data air program, such as in the EPA’s redesignate an area as attainment, are excluded under the Exceptional approval of attainment demonstrations Events Rule, these same data also in SIPs, in PSD air permitting programs 23 80 FR 65292 (October 26, 2015). should be excluded from (i) design and in actions to reclassify a moderate 24 The term ‘‘current’’ denotes the determination value estimates and AQS user reports PM10 or PM2.5 nonattainment area to at issue in the current analysis. In actual practice, (unless the AQS user specifically serious,27 the fact that these predicted such determinations are based on historical data indicates that they should be included), future values rely only in part on and thus reflect a past actual condition. historical monitoring data implies that a 25 The proposal noted that when one of these (ii) selecting appropriate background determinations is based on a combination of concentrations for prevention of different standard for data exclusion monitoring data and air quality modeling, the significant deterioration (PSD) air may be appropriate. criterion requiring that there be a clear causal quality analyses and transportation For these reasons, the EPA proposed relationship between the event and a NAAQS requiring that the five types of exceedance or violation will apply to the combined conformity hot spot analyses, and (iii) estimate of air pollution levels rather than on the selecting appropriate ambient data for determinations that involve data directly monitored background air quality data. projecting future year concentrations as exclusion associated with ‘‘past’’ That is, the event would not be required to have part of a modeled attainment exceedances or violations must follow caused an actual exceedance or violation at the 26 the provisions in the Exceptional Events background ambient monitoring site, but rather to demonstration. have made the critical difference in the combined Rule. The EPA also indicated our intent estimate of air pollution levels (background plus 26 See Question 14a in the Interim Exceptional source impact) resulting in a NAAQS exceedance or Events Rule Frequently Asked Questions. U.S. EPA. 27 Projection of future NAAQS exceedances or violation, because the event increased the May 2013. Available at http://www2.epa.gov/sites/ violations do not necessarily play a role in background levels that are added to the air quality production/files/2015-05/documents/eer_qa_doc_5- reclassification of an ozone nonattainment area to modeling output. 10-13_r3.pdf. a higher classification level.
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to develop a supplementary guidance option for using the Exceptional Events future’’ monitoring data applications. document, Draft Guidance for Excluding Rule for other regulatory We have delayed the release of this Some Ambient Pollutant Concentration determinations, we have added the sixth guidance, however, to allow us to Data from Certain Calculations and bullet in the preamble and in the incorporate the content of the final Analyses for Purposes Other than regulatory text to acknowledge that it Exceptional Events Rule revisions. We Retrospective Determinations of may be appropriate to use the intend to post the draft guidance and Attainment of the NAAQS, to describe provisions in the Exceptional Events instructions for providing public the appropriate additional pathways for Rule to exclude data for regulatory comment on the exceptional events Web data exclusion for some ‘‘predicted determinations not specifically site at http://www2.epa.gov/air-quality- future’’ monitoring data applications articulated in the first five bullets. We analysis/treatment-data-influenced- (e.g., predicting future attainment that is expect that air agencies and the exceptional-events shortly after the basis for approval of an attainment appropriate EPA Regional offices will finalizing these rule revisions. As we demonstration in the SIP for a discuss these case-by-case scenarios as noted in the proposal, we intend this nonattainment area, preparing required part of the Initial Notification of guidance to do the following: air quality analyses in an application for Potential Exceptional Event process, • Clarify that data excluded under the a PSD permit or preparing required air described in more detail in Section procedural and substantive provisions quality analysis for the purposes of IV.G.5 of this preamble. of the Exceptional Events Rule will also transportation conformity). Upon further review of the identified be excluded from (i) design value determinations by the Administrator, estimates and AQS user reports (unless 2. Final Rule we also realized that the fourth bullet, the AQS user specifically indicates that After considering the public formerly ‘‘A determination that an area they should be included), (ii) selecting comments we received, as explained has had only one exceedance in the year appropriate background concentrations more fully in the following paragraphs, prior to its deadline and thus qualifies for PSD air quality analyses and we are finalizing language that applies for a 1-year attainment date extension, transportation conformity hot spot the provisions in the Exceptional Events if applicable’’ applies to attainment date analyses, and (iii) selecting appropriate Rule to the treatment of data showing extensions only for PM10 as indicated in ambient data for projecting future year exceedances or violations of any CAA section 188(d)(2) because ‘‘only concentrations as part of a modeled NAAQS for purposes of the following one exceedance’’ is specific to PM10. attainment demonstration. types of regulatory determinations by Attainment date extensions for other • Identify potential pathways for data the Administrator. NAAQS have other CAA conditions. exclusion for determinations based on • An action to designate or Our intent was that this determination ‘‘predicted’’ future NAAQS exceedances redesignate an area as attainment, would apply to attainment date or violations (e.g., PSD, transportation unclassifiable/attainment, extensions for all NAAQS and these conformity). nonattainment or unclassifiable for a NAAQS have CAA conditions other • Identify the scenarios in which the particular NAAQS. Such designations than ‘‘only one exceedance.’’ As a EPA would not exclude data, such as rely on a violation at a monitoring site result, we have revised the language as when setting priority classifications for in or near the area being designated. follows to better convey this concept: emergency plans under 40 CFR 51.150. • The assignment or re-assignment of ‘‘A determination that an area has data The EPA believes that implementing the a classification category (marginal, for the specific NAAQS, which qualify CAA principle at section 319(b)(3)(A) moderate, serious, etc.) to a the area for an attainment date that ‘‘protection of public health is the nonattainment area to the extent this is extension under the CAA provisions for highest priority’’ may necessitate that an based on a comparison of its ‘‘design the applicable pollutant.’’ Using this air agency address in its emergency plan value’’ to the established framework for approach, a state would be required to the appropriate planned response for such classifications. demonstrate that a given area had data any elevated concentration known to be • A determination regarding whether with respect to the statistical form of possible because it has already been a nonattainment area has attained a that particular standard in the calendar observed even if that elevated NAAQS by its CAA deadline. This type year prior to the applicable attainment concentration is associated with an of determination includes ‘‘clean data date for the area (i.e., for the 1997 24- exceptional event. determinations.’’ hour PM10 NAAQS, no more than one 3. Comments and Responses • A determination that an area has exceedance of the 24-hour NAAQS and data for the specific NAAQS that qualify the annual mean concentration of PM10 While the majority of commenters the area for an attainment date in the area for such year is less than or agreed with the EPA’s proposal that the extension under the CAA provisions for equal to the standard level). Revising provisions in the Exceptional Events the applicable pollutant. this language also accounts for potential Rule apply to the enumerated five • A finding of SIP inadequacy leading future revisions to the form and level of actions, many of these same to a SIP call to the extent the finding the NAAQS, data handling provisions commenters urged the EPA not to limit hinges on a determination that the area and regulatory changes to state the scope of the Exceptional Events Rule is violating a NAAQS. implementation plan requirements. to the five actions that we identified in • Other actions on a case-by-case As we indicated in the proposal, we the proposal as comprising basis if determined by the EPA to have still intend to develop a supplementary ‘‘determinations by the Administrator regulatory significance based on guidance document, Draft Guidance for with respect to exceedances or discussions between the air agency and Excluding Some Ambient Pollutant violations of national ambient air the EPA Regional office during the Concentration Data from Certain quality standards.’’ Commenter Initial Notification of Potential Calculations and Analyses for Purposes suggestions ranged from adding a sixth Exceptional Event process. Other than Retrospective element to capture other case-by-case After considering comments from Determinations of Attainment of the actions deemed to be of regulatory multiple state and local air agencies, NAAQS, which will describe the significance to specifically listing other regional planning organizations and appropriate additional pathways for potential actions (that is, they suggested industrial commenters that requested an data exclusion for some ‘‘predicted adding the following to list of
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specifically covered actions: Design that are directly due to an exceptional exceptional events demonstrations and value estimates, PSD background event from use in determinations, air agency requests for data exclusion. determinations, transportation hot spot identify the scope of the word Several commenters asked for analyses, future year projections for ‘‘determinations.’’ Second, identifying additional clarification regarding this modeled attainment determinations, the Exceptional Events Rule as the only terminology, either in preamble or in clean data determinations (which are mechanism by which data may be regulatory text. Several other included within the third bullet excluded from regulatory actions may commenters asked that we use the identifying the types of regulatory result in unintended consequences. As ‘‘more commonly understood’’ determinations by the Administrator we have noted previously, an event may terminology of ‘‘preponderance of the included within the scope of the make a past air concentration evidence.’’ Another commenter objects Exceptional Events Rule), other actions significantly higher than it would have to the use of a weight of evidence that rely on design values, monitoring been in the absence of the event approach noting that it could lead to network plans, etc.). The EPA agrees contribution. If the event-influenced incorrectly granted requests for data that the list of actions identified in the data do not result in an exceedance or exclusion. regulatory text should allow for a case- violation, they are not eligible for While we are not adding language to by-case determination in certain exclusion under the Exceptional Events the regulatory text, we are clarifying in circumstances (e.g., such as when an Rule. CAA section 319(b) is ambiguous this preamble to the final rule that in event is determined during the Initial with respect to how to treat an applying a ‘‘weight of evidence’’ Notification of Potential Exceptional exceptional event that contributed to a approach to reviewing individual Events process to have regulatory past air concentration being higher than exceptional events demonstrations, the significance for an action not otherwise it would have been without the event, EPA believes it is appropriate to identified in the regulatory text) and has but the air concentration did not result consider all relevant evidence and added this language to the final in an exceedance or violation. The qualitatively ‘‘weigh’’ this evidence regulatory text. The EPA believes that EPA’s decision to not apply the based on its relevance to the this language could include any of the Exceptional Events Rule to data that Exceptional Events Rule criterion being specific actions identified by other does not exceed or violate a NAAQS is addressed, the degree of certainty, its commenters. However, as we noted in consistent with how the rule has been persuasiveness, and other the proposal, the CAA does not clearly applied and interpreted and is not considerations appropriate to the apply the statutory criteria of section inconsistent with CAA section 319(b). individual pollutant and the nature and 319(b) to all of the other actions However, we acknowledge that type of event. Courts have found that it identified by the commenters. retaining the event-influenced data is reasonable for the EPA to use a Therefore, under certain circumstances, could have regulatory implications that ‘‘weight of evidence’’ analysis when we believe that it may be appropriate to seem contrary to the purpose of CAA implementing the CAA. See, e.g., Envtl. exclude data for some of the other section 319(b). For example, retaining Def. v. EPA, 369 F.3d 193 (2d Cir. 2004) specific actions. Hence, we are not such data in the calculation of (upholding the EPA’s approval of a identifying these actions in the background concentrations used in air state’s attainment demonstration using regulatory text. Rather, we intend to quality analysis for a PSD permit may photochemical grid modeling and a address them in the additional guidance suggest that there will be a NAAQS weight of evidence analysis) and BCCA previously mentioned and discussed violation after construction of a new Appeal Group v. EPA, 355 F.3d 817 (5th further in the following paragraphs. source and thus could prevent the Cir. 2003) (finding that the EPA’s As indicated, the majority of permitting authority from issuing the conclusion that the weight of evidence commenters agreed with the EPA’s permit.28 approach to approving attainment approach to define those actions that As previously noted, we intend our demonstrations was consistent with the constitute ‘‘determinations by the Draft Guidance for Excluding Some CAA, reasonable and entitled to Administrator.’’ A few other Ambient Pollutant Concentration Data deference). In this context, ‘‘weight’’ commenters, however, indicated that from Certain Calculations and Analyses refers to the relevance of the evidence the EPA cannot narrow the scope of the for Purposes Other than Retrospective to the determination and its technical Exceptional Events Rule nor agree to Determinations of Attainment of the merit, and not to the amount of exclude event-affected data from other NAAQS to describe the appropriate documentation. The language ‘‘weight types of regulatory determinations using additional pathways for data exclusion of evidence’’ is consistent with this another mechanism without first for some ‘‘predicted future’’ monitoring approach and consistent with the undertaking notice-and-comment data applications. Multiple commenters terminology used in other EPA rulemaking. The EPA disagrees with expressed interest in this guidance and regulatory actions. ‘‘Preponderance of this comment. First, neither the CAA called for its quick release. The EPA the evidence’’ conveys many of the language at section 319(b)(3)(B)(iv), recognizes that this guidance is an same concepts as ‘‘weight of evidence,’’ which requires regulations allowing a important supplement to the revisions but because it is a legal term of art, we state to petition the Administrator to to the Exceptional Events Rule that we are not using that term as part of this exclude air quality monitoring data that are promulgating and we will work rulemaking action. The weight of is directly due to exceptional events towards the quick release of this evidence approach is an appropriate from use in determinations by the document. and reasonable approach, which has Administrator with respect to Throughout this preamble and in our been used historically and successfully exceedances or violations of the proposal, we use the term ‘‘weight of under key CAA programs. The national ambient air quality standards, evidence’’ to describe the process by commenter did not present any nor the implementing language in the which we evaluate individual information showing that this approach 2007 Exceptional Events Rule at 40 CFR is more likely to yield ‘‘incorrect’’ 28 If a similar event were to occur after 50.14(a)(1), which allows air agencies to completion of construction, the event-affected data decisions than any other evidentiary request exclusions for data showing could be excluded and thus there would be no approach that might be applicable to exceedances or violations of the NAAQS ‘‘official’’ violation. exceptional events demonstrations.
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D. Definition and Scope of a Natural expecting air agencies to determine the exceedance occurred, then we would Event initial cause of each wildfire of interest consider the human activity to have and classifying it as natural or played little or no direct causal role in 1. Summary of Proposal anthropogenic based on that cause. In causing the event-related exceedance. In the 2007 Exceptional Events Rule, addition, landowners and managers and Rather, in those cases in which the the EPA defined a natural event as an government public safety agencies are anthropogenic source has ‘‘little’’ direct event in which human activity plays strongly motivated to reduce the causal role, we would consider the high little or no direct causal role (see 72 FR frequency and severity of human-caused wind and the emissions arising from the 13580). In our 2015 action, the EPA wildfires. Our proposal further contributing natural sources (in which proposed to revise this definition to explained that if anthropogenic human activity has no role) to cause the include the concept of an event and its emission sources that contribute to the exceedance or violation. Additionally, resulting emissions and to acknowledge event emissions can be reasonably the event would not be natural if all of that natural events can recur. The EPA controllable but reasonable controls the event-related emissions originated also proposed to include language in the were not implemented at the time of the from anthropogenic sources or if regulatory definition to clarify that event, then the event would not be anthropogenic emission sources that anthropogenic emission sources that considered a natural event. contributed to the event-related contribute to the event emissions (and 2. Final Rule emissions could have been reasonably subsequent exceedance or violation) controllable but reasonable controls that are reasonably controlled do not After consideration of the public were not implemented at the time of the play a ‘‘direct’’ role in causing comments and as supported by many event.30 We discuss the concept of emissions. The proposal elaborated on commenters, we are finalizing the reasonable control in more detail in the ‘‘direct causal’’ concept by repeating following definition: ‘‘natural event Section IV.E.2 of this preamble. language that first appeared in the means an event and its resulting preamble to the 2007 Exceptional emissions, which may recur at the same 3. Comments and Responses Events Rule but not in rule text. location, in which human activity plays Commenters providing feedback on In the 2007 rule preamble and the little or no direct causal role. For the natural events section of the November 2015 proposal, the EPA purposes of the definition of a natural proposal generally focused on one of the explained that we generally consider event, anthropogenic sources that are following concepts: The language in the human activity to have played little or reasonably controlled shall be proposed revised definition of natural no direct role in causing an event- considered to not play a direct role in event, those event types considered to related exceedance or violation if causing emissions.’’ In the final be natural events and the concept of anthropogenic emission sources that regulatory definition that we are reasonable controls as it relates to contribute to the exceedance are promulgating, we are adding the contributing anthropogenic emissions. reasonably controlled at the time of the language ‘‘at the same location’’ to more We address in the explanation of the event (see 72 FR 13563–4 and 80 FR clearly indicate that natural events can final rule language in Section IV.D.2 of 72844). This is the case regardless of the recur in the same area or at the same this preamble those comments related to magnitude of emissions generated by location and still be considered as the definition of natural event. We these reasonably controlled exceptional events. The language we are address the types of natural events in anthropogenic sources and regardless of adding in the definition contrasts the this section and we discuss reasonable the relative contribution of these recurrence frequency of natural events controls in Section IV.E.2 of this emissions and emissions arising from with human activities that must be preamble. natural sources in which human activity ‘‘unlikely to recur at a particular Several commenters asked that we has no role.29 location’’ to be considered to be an Thus, the event could be clarify those types of events that could exceptional event (see CAA section considered a natural event by applying be considered natural events eligible for 319(b)(1)(A)(iii)). Although several the reasonable interpretation that the data exclusion under the Exceptional commenters disagreed with our anthropogenic source had ‘‘little’’ direct Events Rule. Commenters specifically approach, and stated that a natural causal role. To further illustrate this asked for clarity regarding earthquakes, event must have no human activity concept, as we have noted previously, lightning and biological emissions. the EPA considers wildfires to be component at all, we are retaining in the regulatory definition the concept that Through our experience implementing natural events even though some the Exceptional Events Rule, we have accidental human actions initiate some we consider reasonably controlled anthropogenic sources to not play a come to realize that it may be helpful to wildfires and, to some degree, prior land think of an event in terms of the source management practices can influence the direct role in causing emissions. We are, however, adding the language ‘‘[f]or of its emissions. If the underlying source frequency and scale of wildfires. The is natural and the generated emissions EPA believes the interpretation that purposes of the definition of a natural event’’ prior to the language influence a regulatory monitor, then the wildfires are natural events best ensuing event (i.e., event and resulting implements the Congressional intent ‘‘anthropogenic sources that are reasonably controlled shall be and is a more appropriate approach than 30 As we clarify in the final rule discussion in considered to not play a direct role in Section IV.F.2.a of this preamble, when considering 29 For example, if an area affected by a high wind causing emissions’’ to clarify that the prevention/control for purposes of exceptional dust event has adequate rules or ordinances for ‘‘direct causal’’ language applies to event categorization, a prescribed fire effectively sources of windblown dust (e.g., rules that establish reasonably controlled anthropogenic becomes like a wildfire when, for example, the restrictions for operating vehicles on unpaved prescribed fire escapes secure containment due to property, rules that control windblown dust sources when considering whether the unforeseen circumstances (e.g., a sudden shift in emissions associated with lands disturbed by event is natural. As we have previously prevailing winds). In these instances, the burn construction, earthwork and land development) and stated, we believe that if reasonable manager would no longer control the path of the the air agency can provide evidence of controls were implemented on fire. Thus, the fact that the initial fire was implementation and enforcement, then the EPA deliberately ignited should not result in the entire would generally consider human activity to have contributing anthropogenic sources at burn (e.g., the duration and extent of the burn) played little or no direct causal role in causing the the time of the event and if, despite needing to follow the rule requirements for monitored exceedance or violation. these efforts and controls, an prescribed fires on wildland.
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emissions) could be considered a demonstrations for various event and approaches for wildland fires, notably ‘‘natural event’’ under the Exceptional pollutant combinations on its Web site prescribed fires on wildland (which we Events Rule. Applying this rationale, as at https://www.epa.gov/air-quality- discuss in Section IV.F.2 of this we expressed in the 2007 rule and the analysis/exceptional-events- preamble), and high wind dust events November 2015 proposal (see 72 FR submissions-table. We will update this (which we discuss in Section IV.F.4 of 13565 and 80 FR 72854–72858), the Web site as additional examples become this preamble). The proposal also EPA generally considers wildfires, available. This section summarizes the clarified that under CAA section 319(b) stratospheric ozone intrusions, volcanic EPA’s proposed revisions, final and a provision of the 2007 Exceptional and seismic (e.g., earthquake) activities, regulatory language and public Events Rule that we did not propose to natural disasters (e.g., hurricanes and comments regarding each of these change, air pollution related to source tornados) and windblown dust from technical criteria. Section IV.G of this noncompliance is not an exceptional natural, undisturbed landscapes to be preamble discusses additional process- event regardless of its frequency. natural events. Natural events, related components of exceptional We proposed, as guidance, to including, but not limited to, those events demonstrations. interpret the unlikely to recur language previously identified, and their as follows. If an event type has not 1. Human Activity Unlikely To Recur at resulting emissions could be considered previously occurred within a given air a Particular Location or a Natural Event under the provisions of the Exceptional quality control region (AQCR) 31 in the Events Rule. Also, as explained in this Because Section IV.D of this preamble 3 years preceding the submittal of an section, events that include emissions addresses the definition of a natural exceptional events demonstration for an from both natural and anthropogenic event and those event types that can be event that has occurred recently, the sources, such as high wind dust events, considered natural events under the EPA will consider this recent event to can be considered natural events only if Exceptional Events Rule, we focus this be a ‘‘first’’ event and will generally reasonable controls have been applied section of the preamble on the ‘‘human consider that event type to be unlikely to the contributing anthropogenic activity unlikely to recur at a particular to recur in the same location.32 sources. Lightning storms occurring location’’ portion of the ‘‘human activity Similarly, if there was one prior event close to a regulatory monitor, such that unlikely to recur at a particular location (for which a demonstration may or may the particular storm notably affects the or a natural event’’ technical criterion. not have been submitted) within the 3 monitor close in time to the storm might In the final rule description section in years preceding the submittal of an qualify as natural events that could also this part of the preamble, we provide exceptional events demonstration for be exceptional events. However, the example conclusory language that air the recent event, that event type would ongoing and delayed aggregate impact of agencies can use in the portion of their also generally be considered unlikely to many lightning storms that are not exceptional events demonstration that recur in the same location. However, if proximate to the monitor is not a addresses this criterion. This example there have been two prior events of a deviation from normal or expected language applies to both human activity similar type within a 3-year period in an conditions and thus would not be an and natural events. AQCR, that would generally indicate the exceptional event. Also, routine a. Summary of Proposal third event, for which the biological emissions (e.g., including, but demonstration is being prepared (or not limited to, emissions from Our proposal stated that according to would be prepared), does not satisfy the vegetation, microbes and/or animals) are both the statutory and regulatory ‘‘human activity that is unlikely to recur not deviations from normal or expected definitions, an exceptional event must at a particular location’’ criterion and, conditions. Thus despite being natural, be ‘‘an event caused by human activity thus, would not qualify as an they are not ‘‘events’’ and would not that is unlikely to recur at a particular exceptional event. The terms ‘‘one prior qualify as exceptional events. As is true location or a natural event’’ (emphasis event’’ and ‘‘two prior events’’ refer to for all exceptional events added, see CAA section 319(b)(1)(A)(iii) events that affect the same AQCR, even determinations, the EPA will consider and 40 CFR 50.1(j)). As we noted in the if they have not affected the same these events, and other event types not discussion of a natural event in Section monitor.33 This proposed guidance is identified here, on a case-by-case basis. IV.D of this preamble, we have come to consistent with the approach taken to realize that it may be helpful to think of recurrence in our Interim High Winds E. Technical Criteria for the Exclusion an event in terms of the source of its of Data Affected by Events Guidance document in which we emissions. If the underlying source is identified non-recurring events as being As described in Section IV.B of this natural and the generated emissions less than one event per year in a given preamble, the EPA is finalizing influence a regulatory monitor, then the area.34 In the Interim High Winds provisions to return to the core statutory ensuing event (i.e., event and resulting elements and implicit concepts of CAA emissions) could be considered a 31 40 CFR part 81, subpart B, Designation of Air section 319(b): That the event affected ‘‘natural event’’ under the Exceptional Quality Control Regions, defines Air Quality air quality in such a way that there Events Rule. Under this particular Control Regions. exists a clear causal relationship criterion, if the underlying source of 32 While we proposed to define event recurrence as occurring in the 3 years preceding the submittal between the specific event and the emissions is anthropogenic, then the of an exceptional events demonstration, the monitored exceedance or violation, the event can only be ‘‘exceptional’’ if the proposal language should have read in the 3 years event was not reasonably controllable or original source is ‘‘unlikely to recur at preceding the event that is the subject of an preventable, and the event was caused a particular location.’’ The proposal exceptional events demonstration. We clarify this 3- by human activity that is unlikely to noted that neither the CAA nor the 2007 year timeframe in the final rule section. 33 The EPA will consider previously flagged recur at a particular location or was a Exceptional Events Rule defined exceedances within AQS with their associated natural event. See, e.g., 42 U.S.C. ‘‘unlikely to recur’’ or ‘‘at a particular descriptions to be ‘‘events’’ regardless of whether 7619(b)(1). All exceptional events location.’’ Therefore, the proposal the EPA has received or acted on event demonstrations, regardless of event type sought to clarify both of these phrases. demonstrations. The EPA also notes that a single event could influence concentrations on multiple or relevant NAAQS, must address each In addition to proposing a generally days. of these technical criteria. The EPA has applicable approach for ‘‘unlikely to 34 See footnote 27 in table 2 of Interim Guidance posted examples of acceptable recur,’’ we also proposed specific on the Preparation of Demonstrations in Support of
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Guidance, we did not define ‘‘area’’ With regard to the frequency, several fall within the bounds of the same other than to differentiate areas by commenters asked the EPA to clarify AQCR. Rather than prescribe an attainment status or jurisdiction (i.e., how the concept of recurrence applies approach to define ‘‘a particular intrastate versus interstate or to a single event spanning multiple location,’’ commenters suggested that international). The EPA solicited days. First, the EPA notes that for the EPA Regional offices and the comment on using an AQCR to define purposes of exceptional events affected air agencies could agree to the the bounds for an area subject to event eligibility, the concept of recurrence bounds of ‘‘a particular location’’ as part recurrence and on whether to only applies to ‘‘human activity of regular, on-going conversations and/ incorporate into rule text the benchmark unlikely to recur at a particular or as part of the Initial Notification of of three events in 3 years. location’’ and not to natural events. Potential Exceptional Event process. Natural events can recur. That said, a Commenters suggested that while an b. Final Rule single event, natural or caused by AQCR might appropriately define ‘‘a As a result of the feedback from human activity, can span multiple days particular location’’ in some areas of the numerous commenters, we are and result in an air agency flagging country, other areas may determine one providing clarifications to the ‘‘unlikely multiple monitor-day values in AQS of the following to be more suitable: to recur at a particular location’’ (i.e., multiple exceedances of a given Counties or other political boundaries, language as guidance in this preamble NAAQS at a single monitor in a single core based statistical areas (CBSAs), and not regulatory text. We note here, as day or multiple NAAQS exceedances at nonattainment or unclassifiable area guidance, the benchmark of three events multiple monitors on multiple days). boundaries (if applicable), a density in 3 years to define recurrence. We The EPA considers a single discrete metric (i.e., number of events per measure the 3-year period backwards event to be one occurrence even if it thousand square miles calculated using from the date of the most recent event extends over more than one day. the radius around the subject monitor), (e.g., for an event occurring on May 1, Applying our benchmark of three events and/or distance to the monitor as 2016, the 3-year period would be May in 3 years, for an area experiencing three indicated by a defined radius from the 1, 2013, through May 1, 2016). As authorized and deliberately set subject monitor. We agree that some of described previously, if there have been structural fires in 2 years, the EPA the commenters’ suggestions may be two prior events of a similar type (i.e., would not consider a third such appropriate in particular cases and we a similar event type generating structural fire in the third year to be an leave it to the EPA Regional offices and 35 emissions of the same pollutant whether exceptional event. Because prescribed to the affected air agencies to consult on flagged or the subject of a fires on wildland eligible for how to characterize ‘‘a particular demonstration) within a 3-year period exceptional events consideration location.’’ As stated previously, all exceptional in ‘‘a particular location,’’ the third involve igniting and managing the fire events demonstrations, regardless of event, for which the demonstration is according to the provisions set forth in event type or relevant NAAQS, must being prepared (or would be prepared), either a Smoke Management Program or address each of the three technical would generally not satisfy the ‘‘human using basic smoke management criteria. We proposed conclusory activity that is unlikely to recur at a practices, we discuss the unique circumstances associated with the language associated with the ‘‘human particular location’’ criterion and, thus, recurrence of prescribed fires on activity that is unlikely to recur at a would not qualify as an exceptional wildland in IV.F.2. particular location or a natural event’’ event. Although under this approach, While we proposed, as guidance, to criterion and repeat it here as part of the the third event essentially confirms that use an AQCR to define the bounds for preamble to the final Exceptional Events the first two events are ‘‘routine,’’ an air an area subject to recurrence, in light of Rule revisions. When addressing this agency would not likely recognize the the comments received and issues criterion as part of an exceptional events routine nature of the first two events raised therein, we agree that using demonstration, the EPA recommends until the third occurrence. Also as noted AQCRs as the only way in which to that the submitting air agency document in our proposal, the EPA will consider define the bounds for an area subject to and discuss the following in a distinct previously flagged exceedances within recurrence is not appropriate. ‘‘human activity/natural event’’ section AQS with their associated descriptions Commenters identified the following of the demonstration: The type/source to be ‘‘events’’ regardless of whether the reasons why an AQCR may not be of event (e.g., a particular type of affected air agency has submitted or the suitable: AQCRs can be antiquated and chemical spill or other industrial EPA has acted on these ‘‘recurring’’ inconsistent with current jurisdictional accident, fire in a particular type of event demonstrations. We also note in boundaries; AQCRs may be too large structure, lightning-ignited wildfire, this final action that the benchmark of (particularly in some areas of the West) etc.), clearly identify whether the event three events in 3 years generally applies for effective analysis of event is natural or was a human activity that regardless of an area’s designation status recurrence; AQCRs could be subdivided is unlikely to recur at a particular with respect to the NAAQS that is the by terrain (e.g., mountains or valleys) location, the resulting emissions (e.g., focus of the event demonstration. The that could affect the transport and/or characterized in terms of the pollutant EPA could grant exceptions to the chemical interactions of pollutants; and magnitude, if applicable/available), benchmark of three events in 3 years pollutant sources and monitors may not and the documented frequency of the benchmark on a case-by-case basis. event in the prior 3 years (or other Several commenters supported, and no 35 A deliberately set structural fire that has been appropriate timeframe as agreed with commenters opposed, this generally authorized by a responsible government agency is the reviewing EPA Regional office).36 applicable approach. clearly not a natural event. We are not offering guidance at this time on whether accidentally set structural fires or arson-set structural fires should 36 The frequency of event recurrence is important Requests to Exclude Ambient Air Quality Data be considered natural or anthropogenic events. We for both natural and anthropogenic events. For Affected by High Winds Under the Exceptional do note, however, that wildfires on wildland anthropogenic events, frequency can determine Events Rule. U.S. EPA. May 2013. Available at initiated by accident or arson are considered natural whether the event satisfies the ‘‘human activity http://www2.epa.gov/sites/production/files/2015- events, and on a case-by-case basis this treatment unlikely to recur at a particular location or a natural 05/documents/exceptevents_highwinds_guide_ for wildfires may bear on the appropriate treatment event’’ criterion. For a natural event, the frequency 130510.pdf. of accidental and arson-set structural fires. Continued
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The air agency should then affirmatively demonstration submittal, that address EPA, and that these changes could state that in characterizing the event, it the event-related pollutant and all ultimately result in an air agency’s has satisfied the ‘‘human activity sources necessary to fulfill the adoption of new control measures, unlikely to recur at a particular location requirements of the CAA for the SIP to which, for exceptional events purposes, or a natural event’’ criterion. be reasonable controls with respect to could constitute ‘‘reasonable’’ controls. all anthropogenic sources that have or Acknowledging that these conversations 2. Not Reasonably Controllable or may have contributed to event-related could inform what the air agency knew Preventable emissions. at the time of the event and thus could As noted in the proposal, because • Air agencies do not need to provide influence a case-specific assessment of CAA section 319(b) does not restrict the case-specific justification to support the the not reasonably controllable or applicability of the not reasonably ‘‘not reasonably controllable or preventable criterion, the EPA solicited controllable or preventable criterion to preventable’’ criterion for emissions- comment on methods to definitively certain types of events, this CAA generating activity that occurs outside of identify the status of communications criterion, and the implementing the boundaries of the state (or tribal and planning efforts (e.g., formal Exceptional Events Rule language, lands) within which the concentration correspondence or other documentation, applies to both events caused by human at issue was monitored. timelines for responding) and whether activity and to natural events. This In addition to the identified revisions, this approach would be more section discusses the criterion in general the proposal also discussed and appropriately addressed through rule terms. We discuss the criterion’s solicited feedback on the role of an EPA- language. specific applicability to fire events on approved SIP in nonattainment, First appearing in the Interim High wildland in Section IV.F.2 of this maintenance, unclassifiable and Winds Guidance, the proposal repeated preamble and to high wind dust events attainment areas; prior communications the suggestion that an air agency could in Section IV.F.4 of this preamble. regarding expectations for reasonable prospectively assess and determine that the controls in place for a particular a. Summary of Proposal controls; prospective agreements regarding assessments of reasonable type of event, or a planned The EPA proposed to codify in controls; and components of a not enhancement of those controls, are regulatory language key aspects of the reasonably controllable or preventable sufficient to meet the not reasonably ‘‘not reasonably controllable or showing within a demonstration. We controllable or preventable criterion, preventable’’ criterion to reduce summarize our proposed positions on and then obtain the EPA’s review and uncertainty for air agencies and other these topics in the following paragraphs. concurrence of this assessment prior to parties. Specifically, we proposed and The proposal stated that while we more events of that type occurring. The solicited comment on the following would defer to the enforceable control proposal expressed the EPA’s belief that revisions to the Exceptional Events Rule measures in attainment plan SIPs this prospective approach would reduce to indicate that: disagreements that might otherwise • applying to maintenance and The not reasonably controllable or nonattainment areas, we would not give occur over later retrospective preventable criterion has two prongs, this same deference to infrastructure assessments. The proposal also solicited comment prevention and control. An air agency SIPs developed for attainment, on recommending as either guidance or must demonstrate that an event was unclassifiable/attainment and rule the following components that an both not reasonably preventable and not unclassifiable areas. We differentiated air agency should include within the reasonably controllable. attainment plan SIPs and infrastructure • not reasonably controllable or An event is not reasonably SIPs by the fact that attainment plan preventable if reasonable measures to preventable showing in a SIPs must include an attainment demonstration: (1) Identify the natural prevent the event were applied at the demonstration and reasonably available time of the event. and anthropogenic sources of emissions • control measures (RACM), best available causing and contributing to the event An event is not reasonably control measures (BACM),37 and other controllable if reasonable measures to 38 emissions, including the contribution requirements, which together from local sources, (2) identify the control the impact of the event on air constitute an assessment of reasonable quality were applied at the time of the relevant SIP or other enforceable control controls. Infrastructure SIPs typically measures in place for these sources and event. rely on maintenance and attainment • The reasonableness of measures is the implementation status of these SIPs to demonstrate compliance with case-specific and is to be evaluated in controls, and (3) provide evidence of the key infrastructure elements. light of information available at the time effective implementation and Therefore, the EPA proposed that the of the event. enforcement of reasonable controls, if underlying SIPs, which would • Air agencies do not need to provide applicable.39 In identifying natural and themselves include the control case-specific justification to support the anthropogenic sources, we clarified that measures, be the relevant SIPs for ‘‘not reasonably controllable or the air agency should assess both exceptional events demonstrations. preventable’’ criterion for remote, large- The proposal also recognized that scale, high-energy and/or sudden high 39 The EPA generally expects evidence that the regulations and an area’s planning wind dust events, such as ‘‘haboobs.’’ controls determined to be reasonable, if any, were status are often evolving and changing, effectively implemented and appropriately • Provided the air agency is not under that these changes can span several enforced. This assessment of local sources should an obligation to revise the SIP, the EPA include a review and description of any known years and involve multiple rounds of would consider (i.e., give deference to) nearby facility upsets or malfunctions that could formal and informal communications have resulted in emissions of the relevant enforceable control measures between the affected air agency and the pollutant(s) that influenced the monitored implemented in accordance with a state measurements on the day(s) of the claimed events. implementation plan, approved by the In the case of a high wind dust event, for example, 37 BACM applies to attainment plans for serious EPA within 5 years of the date of a for the identified potentially contributing local PM10 or PM2.5 areas. sources, the analysis should explain how significant 38 Marginal ozone nonattainment areas are dust emissions occurred despite having reasonable can determine whether a mitigation plan is exceptions because they are not required to submit controls in place (e.g., that controls were necessary (see Section V of this preamble). attainment demonstrations. overwhelmed by high wind), if appropriate.
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potentially contributing local/in-state with respect to all anthropogenic preventable’’ criterion for large-scale and upwind sources. sources that have or may have and high-energy high wind dust events, contributed to the monitored such as ‘‘haboobs.’’ (We discuss the b. Final Rule exceedance or violation.41 If the characteristics of these events in Section After considering the public appropriate air agency is under an IV.F.4 of this preamble.) comments we received, we are obligation to revise its implementation In addition, we repeat in this final finalizing the following not reasonably plan with respect to the specific action our suggestion that an air agency controllable or preventable elements, all enforceable control measures applicable can prospectively assess and determine of which contain associated regulatory to the exceptional events demonstration that the controls in place for a particular language. due to a SIP call pursuant to CAA type of event, or a planned • The not reasonably controllable or section 110(k)(5), the EPA will evaluate enhancement of those controls, are preventable criterion has two prongs, on a case-by-case basis the control sufficient to meet the not reasonably prevention and control. An air agency measures in place to determine whether controllable or preventable criterion, must demonstrate that an event was emissions were reasonably controlled at and then obtain the EPA’s review and both not reasonably preventable and not the time of the event. concurrence of this assessment prior to reasonably controllable. • When addressing the ‘‘not the occurrence of similar events (i.e., a • An event is not reasonably reasonably controllable or preventable’’ similar event type generating emissions preventable if reasonable measures to criterion within an exceptional events of the same pollutant). This prospective prevent the event were applied at the demonstration, air agencies should: (1) approach would reduce disagreements time of the event. Identify the natural and anthropogenic that might otherwise occur over later • An event is not reasonably sources of emissions causing and retrospective assessments. Although air controllable if reasonable measures to contributing to the monitored agencies have not historically pursued control the impact of the event on air exceedance or violation, including the this option, it is our intent going quality were applied at the time of the contribution from local sources,42 (2) forward to work with any air agency event. identify the relevant SIP, FIP or TIP or expressing an interest in pursuing this • The reasonableness of measures is other enforceable control measures in approach. Air agencies interested in this case-specific and is to be evaluated in place for these sources and the process should contact their reviewing light of information available as of the implementation status of these controls, EPA Regional office. date of the event. and (3) provide evidence of effective c. Comments and Responses • Air agencies do not need to provide implementation and enforcement of case-specific justification to support the reasonable controls, if applicable.43 While some commenters supported ‘‘not reasonably controllable or • Air agencies do not need to provide the EPA’s stated position in the preventable’’ criterion for emissions- case-specific justification to support the proposal that the not reasonably generating activity that occurs outside of ‘‘not reasonably controllable or controllable or preventable criterion the boundaries of the state (or tribal consists of two prongs (i.e., control and lands) within which the concentration 41 Under CAA section 110(c), the EPA is required prevention), other commenters asserted at issue was monitored.40 to issue and enforce a federal implementation plan that the statutory criterion and the if a state fails to develop, adopt and implement an implementing language in the 2007 rule In addition, as a result of commenter adequate SIP. States may also choose to adopt the feedback as explained more fully in federal plan as an alternative to developing their is ‘‘not reasonably controllable or subsequent paragraphs, we are own plan. If a federal plan is implemented in a preventable’’ (emphasis added). promulgating in regulatory text the state, the state may still, at a later date submit a plan Commenters disagreeing with the EPA’s to replace the federal plan either in whole or in position claim that the EPA’s following revised versions of elements part. States may take over the administrative and that we proposed for the not reasonably enforcement aspects of a federal plan rather than interpretation is contrary to the CAA controllable or preventable criterion: leaving it to the EPA. Similarly, under the TAR at and that the EPA lacks authority to • Provided the appropriate federal, 40 CFR 49, tribes can develop their own plans (i.e., contravene the precise statutory tribal implementation plans) to implement the CAA language in the implementing regulatory state or tribal air agency is not under an provisions. Rather than develop their own TIPs, obligation to revise the SIP or FIP or TIP tribes can request that the EPA develop a FIP. language by interpreting the CAA to for an attainment or maintenance area 42 In specifying ‘‘local’’ sources, we mean those mean that an exceptional event must be for the event-related pollutant, the EPA sources that are both within the jurisdiction of the both not reasonably controllable and not state or tribe and that are in the vicinity of or are reasonably preventable. would consider (i.e., give deference to) located upwind of the monitor with the recorded enforceable control measures exceedance or violation. ‘‘Local’’ sources could As previously noted, we maintain that implemented in accordance with such a include, but are not limited to, large point sources the criterion consists of two factors: SIP or FIP or TIP, approved by the EPA (e.g., large industrial sources, electric power plants, Prevention and control and that to airports, etc), nonpoint sources (e.g., residential qualify as an exceptional event, the within 5 years of the date of the event, heating, asphalt paving, etc.), mobile sources (e.g., that address the event-related pollutant both on- and off-road vehicles, construction event must satisfy both factors. CAA and all sources necessary to fulfill the equipment, trains, and vessels), natural sources or section 319(b)(1)(A)(ii) is ambiguous requirements of the CAA for the SIP or biogenic sources (e.g., off-gassing from soil, animals regarding whether ‘‘not reasonably and vegetation). controllable or preventable’’ requires a FIP or TIP to be reasonable controls 43 The EPA recognizes that air agencies have various methods of ensuring source compliance and demonstration to show both criteria, or 40 Under the CAA, the EPA generally considers a various methods of permitting and enforcement. We one or the other. In adopting our state (not including areas of Indian country) to be do not expect nor would all agencies necessarily interpretation, we have applied a valid a single responsible actor. Accordingly, neither the need to have enforcement records for all events. rule of inference known as De Morgan’s EPA nor the 2007 Exceptional Events Rule provides However, agencies should make a general showing special considerations for intrastate scenarios when that they are enforcing controls to a reasonable law, which recognizes that the negation an event in one county affects air quality in another degree (not necessarily on the particular day of the of a disjunction is the conjunction of the county in the same state, assuming that the event event). If an air agency identifies several categories negations. Stated simply, ‘‘not (A or B)’’ occurs on land subject to state authority (versus of anthropogenic sources as significant or likely is the same as ‘‘(not A) and (not B).’’ tribal government authority). The EPA expects contributors to an event, the air agency should also controls appropriate for the designation status of describe in the demonstration the means used to See, e.g., State v. Nelson, 842 NW.2d the county (or portion of the county) in which the determine compliance with reasonable control 433, at 440–41 (Minn. 2014) (finding it emissions originate. requirements for each category. reasonable to apply De Morgan’s law to
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statutory interpretation); Schane v. Int’l control emissions and protect public noted in the proposal, an air agency Bhd. Of Teamsters, 760 F.3d 585, 589– health. Exemptions and exceptions ‘‘caught by surprise’’ by an event of a 92 (7th Cir. 2014) (applying De Morgan’s apply in addition to, rather than in given type (or by an unexpected number law to address a pension plan dispute, place of, reasonable controls. The CAA of such events in a period over which focusing on the context in which the does not allow air agencies to avoid NAAQS compliance is evaluated, ‘‘not . . . or’’ phrase was used). Applied applying reasonable controls to address typically 3 years) should not be to CAA section 319(b)(1)(A)(ii), an emissions simply because other factors expected to have implemented the same exceptional event means an event that is also contribute to those emissions. For controls prior to an event as an air both not reasonably controllable and not example, for a high wind event, agency that has been aware that events reasonably preventable. The legislative applying ‘‘or’’ might suggest that of a certain type occur with regularity history supports this logical reading of because the wind is not preventable, the and cause NAAQS exceedances or the statutory language. Congress agency has no obligation to address violations. The EPA anticipates that provided the following rationale for reasonable controls (e.g., the application nonattainment (or maintenance) areas promulgating the exceptional events of water to stockpiles of wood chips) have technical information needed to provisions: ‘‘Events such as forest fires that could reduce emissions in the case understand those measures that or volcanic eruptions, should not of such an event. For prescribed fire, the constitute reasonable control of influence whether a region is meeting use of ‘‘or’’ could allow an air agency to anthropogenic sources in their its Federal air quality goals.’’ S. Rep. No. argue that a fire is not reasonably jurisdiction for recurring events of the 109–53, at Sec. 1618 (2005) and S. Rep. preventable because of the safety or type(s) that cause or contribute to No. 108–222, at Sec. 1618 (2004). The ecosystem benefits that would be nonattainment (or that did previously). examples used in the legislative foregone if the fire were not applied, so In contrast, the EPA generally does not history—forest fires and volcanic the emissions and air quality impacts expect areas identified as attainment, eruptions—are both not reasonably from the fire do not need to be unclassifiable/attainment or controllable and not reasonably reasonably controlled through the unclassifiable for a NAAQS to have the preventable. application of basic smoke management same understanding or to have adopted This interpretation is also supported practices. Another example of when the same level of event-relevant controls by the intent of CAA section 319(b), applying ‘‘or’’ would be problematic is as areas that are nonattainment (or which identifies the limited a situation in which a developer could maintenance) for the same NAAQS. circumstances in which it is appropriate intentionally set fire to forested land to Also, if an area has been recently to exclude from certain regulatory clear it for development, as that event designated to nonattainment but is still decisions air monitor data clearly would be preventable but possibly not developing its SIP and has not yet caused by an exceptional event controllable; such an event should not reached a deadline to implement balanced with the CAA’s goal of be considered an exceptional event. In controls, the EPA expects the level of protecting human health and the contrast, elsewhere in the preamble to controls that is appropriate for that environment. The language ‘‘not these final rule revisions we explain planning stage.44 reasonably controllable’’ clearly that some events may be neither As noted previously, the EPA implicates controls, as does preventable nor their air quality impacts proposed, and is finalizing in rule ‘‘preventable,’’ since an event may be to be controllable to any degree, such as language, that an air agency does not ‘‘preventable’’ by mitigating the potential increases in SO2 need to provide case-specific conditions under which the event concentrations associated with volcanic justification to support the ‘‘not occurs—i.e., by applying controls. Thus, eruptions, and thus would qualify as reasonably controllable or preventable’’ consideration of the circumstances of exceptional events. criterion for emissions-generating the event and possible application of These final rule revisions present that activity that occurs outside the controls is appropriate in both contexts, what is ‘‘reasonable’’ for purposes of boundaries of the state (or tribal lands) and a separate analysis is required for ‘‘not reasonably controllable or within which the concentration at issue ‘‘not reasonably controllable’’ and ‘‘not preventable’’ should consider the was monitored. While the majority of reasonably preventable.’’ technical knowledge available to the air commenters supported this provision, We note that the commenters who agency at the time of the event. While other commenters noted that it is disagree with the EPA’s interpretation this concept was supported by some inconsistent with the plain language of failed to identify any scenarios or commenters, others maintain that CAA section 319, which requires that an provide any examples of why it is ‘‘controllable’’ is forward looking rather event be not reasonably controllable or problematic for the EPA to require that than backward looking and that air preventable and does not distinguish an exceptional event must be both not agencies should anticipate future events based on the origin of emissions reasonably controllable and not and implement controls and measures associated with the event. reasonably preventable. While some air to account for potential future impacts. A review of the legislative history, agencies that have submitted We agree with the commenters that a and the language of section 319, as well demonstrations have argued that the prospective approach to assessing what as the purpose and intent of the CAA as ‘‘or’’ in this criterion allows them to might constitute ‘‘reasonable controls’’ a whole, reveals that Congress did not choose between showing either could be helpful in some cases, likely intend to deny a downwind state prevention or control of the event- particularly for areas experiencing related emissions, this type of ‘‘or’’ recurring events. Therefore, we have 44 The CAA provides different timeframes for selection is contrary to the emphasis of modified our proposal as it relates to developing and implementing SIPs depending on the NAAQS and the nonattainment area’s CAA section 319(b) on the protection of mitigation for areas experiencing classification (e.g., severity of the nonattainment public health and the exclusion of data historically documented or known problem). The EPA recognizes that within the SIP associated with emissions from seasonal events. We discuss these development and implementation process, some ‘‘exceptional events.’’ The CAA as a concepts in Section V of this preamble. measures may be implemented relatively quickly (e.g., transportation conformity, new source review) whole, and section 319(b) in particular, We disagree, however, with the whereas other programs, such as development or is premised on the idea that states commenters’ forward-looking approach rules for particular source types, can take time and should undertake reasonable actions to as it applies to other situations. As we involve state legislative processes.
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or tribe relief in the form of data emissions originating from a natural, on to attain/maintain these NAAQS. In exclusion within the context of the event-based sources (e.g., wildfire, developing its SIP according to the Exceptional Events Rule for emissions volcanic activity) or from human provisions of CAA section 110(a), a state that state or tribe has no authority to activities unlikely to recur at a must identify and assess those sources control. See, e.g., H.R. Rep. No. 109–203 particular location (e.g., industrial of emissions that are contributing to the (2005) and CAA section 319(b)(1). As explosions) are more likely to qualify as state’s air pollution problem, identify we expressed in the proposal, it is not exceptional events. As we have stated appropriate controls, identify reasonable to expect the downwind air multiple times in this preamble, to contingency measures, address agency (i.e., the state or tribe submitting qualify for data exclusion under the provisions for demonstrating reasonable the demonstration) to have required or provisions of the Exceptional Events further progress, identify permitting persuaded the upwind state, tribe, or Rule, an event must satisfy all of the requirements, and satisfy other foreign country to have implemented technical and administrative requirements. When a nonattainment controls on sources sufficient to limit requirements under the rule. area reaches attainment, it may be event-related air concentrations in the The proposed rule revisions redesignated to maintenance area status downwind state or tribal lands. In fact, contained regulatory language allowing if it has implemented all applicable Congress explicitly addressed interstate air agencies to defer to the control nonattainment area requirements and pollution transport in CAA sections measures included in an attainment or obtains the EPA’s approval for a 110(a)(2)(D)(i) and (ii), which we maintenance SIP, approved by the EPA maintenance plan for a 10-year period. discuss in more detail in Section IV.F.1 within 5 years of the date of a Thus, in both maintenance and of this preamble. There is no evidence demonstration submittal, that addresses nonattainment areas with approved that Congress intended for such efforts the event-related pollutant and attainment plan SIPs, the air agency and to be repeated in the context of contributing sources, to satisfy the the EPA, with input from the public, exceptional events. We note, however, requirement for reasonable controls. will have considered what controls are that we do expect the submitting While the overwhelming majority of necessary and reasonable to provide for (downwind) air agencies to assess commenters, representing state, local, attainment, based on information potential contribution from local/in- regional planning organizations and available at the time of plan state sources within their jurisdiction industry, supported this presumption, a development and approval. Because the and submit evidence and statements few commenters disagreed with this attainment/maintenance SIP supporting the other exceptional events provision noting that the EPA should development process includes the criteria (i.e., clear causal relationship not universally defer to SIP measures, identification and assessment of those and human activity unlikely to recur or but rather should assess the not sources of emissions that are a natural event) in their demonstrations reasonably controllable or preventable contributing to the state’s air pollution for events that originate outside of their criterion on a case-by-case basis. problem, which could include event- jurisdictional bounds. Commenters supporting deference asked related emissions, it is appropriate to the EPA to consider the following rely on the measures in the SIP as Regarding the origin of emissions, revisions: (1) Measure the sufficiency of constituting reasonable controls for several commenters asked that the EPA SIP requirements from the date of the purposes of exceptional events clarify how ‘‘outside of jurisdiction’’ event rather than the date of demonstrations just as it is reasonable to applies to emissions from ocean-going demonstration; (2) include reliance on rely on the measures in the SIP as vessels (e.g., container ships and large measures in FIPs and/or TIPs in constituting reasonable controls for tankers that are regulated by addition to those in SIPs; (3) include emissions sources. We do, however, international treaties) and international reliance on BACMs in air quality agree with the commenters that natural and anthropogenic emissions. permits that are designed to control deference to the control measures in an Although the EPA would consider anthropogenic industrial sources; and attainment or maintenance SIP should emissions from ocean-going vessels (4) expand the reliance to include not be open-ended. We discuss regulated by international treaties as infrastructure SIPs (with or without limitations to this deference in the well as other international emissions Natural Events Action Plans (NEAP) or following paragraphs, including (regardless of whether they are natural other mitigation plans). deference for a limited timeframe (i.e., 5 or anthropogenic in origin) to be We individually address these general years). emissions originating outside of the comments and specific suggestions for As suggested by commenters, we have jurisdiction of the affected air agency revision in the following paragraphs. changed the language in this provision and these emissions would therefore We maintain, as supported by many to be 5 years from the date of the satisfy the not reasonably controllable or commenters and as opposed by a few, ‘‘event’’ rather than the date of preventable criterion, these same that deference to enforceable control ‘‘demonstration submittal’’ as we emissions would only qualify for measures implemented in accordance proposed. We believe that it is treatment under the Exceptional Events with an attainment or maintenance SIP reasonable and appropriate to make this Rule if they also satisfy the clear causal (or FIP or TIP), is appropriate provided change to ensure that the exceptional relationship criterion and the human the timeframe for deference is limited events process is implemented in a activity unlikely to recur at a particular and provided the SIP addresses the manner consistent with the CAA. We location or a natural event criterion. In pollutant and the sources potentially also agree with commenters that ‘‘5 these scenarios, emissions from ships contributing emissions to the years from the date of the event’’ is the regulated by international treaty and exceedance or violation that is the more appropriate time-frame given that international emissions from routine subject of the exceptional events we are promulgating requirements in anthropogenic activity would not satisfy demonstration. SIPs demonstrate that 50.14(b)(8)(i)–(iv), which also rely on the human activity unlikely to recur at the state has the basic air quality the date of the event. a particular location criterion because management program components in As we noted in this preamble, we also they are both routine and occur place to implement a new or revised agree with commenter frequently in the same area (e.g., the NAAQS by identifying the emission recommendations that we defer to port or coastline). International control requirements that state will rely enforceable control measures
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implemented in accordance with an universally satisfy the not reasonably ‘‘normal’’ air quality. Using a 3-year attainment or maintenance SIP, FIP or controllable or preventable criterion, we period of deference might mask (or TIP. We have included these encourage air agencies to identify accentuate) the range of ‘‘normal’’ air implementation plans in the regulatory measures in infrastructure SIPs, NEAPs, quality, while using a 10-year deference text. We agree that FIPs and TIPs mitigation plans, SMP and prospective timeframe could overlook new provide the same level of assessment of assessments of reasonable controls in emissions sources, relevant control control measures during the the collection of controls that they measures and control measure development and approval process as determine constitute ‘‘reasonable’’ technologies, and other changes in the attainment/maintenance SIP process controls for purposes of addressing the affected area that could influence the previously described and that the only not reasonably controllable or approvability of a SIP (or FIP or TIP). difference between these plans lies in preventable criterion. We note that We also note that in establishing a the agency developing the plan and the provisions in these plans could, on a period of deference of 5 years, we are agency to whom the plan applies, case-by-case basis with the proper not implying that in periods longer than neither of which impact whether the showing, satisfy the not reasonably 5 years, the controls in a SIP measures contained in the plans controllable or preventable criterion. automatically become inappropriate or constitute reasonable controls for We are promulgating rule language insufficient. Rather, we are saying that purposes of exceptional events that the timeframe for attainment/ in cases where the SIP was approved demonstrations. For several reasons, maintenance SIP deference is 5 years more than 5 years prior to the date of the event (and the air agency is not however, we do not agree that we from the date of the SIP approval under an obligation to revise the SIP), should universally extend this same measured to the date of an event at because of the passage of time, the SIP deference to BACM or fugitive dust issue. We solicited comment on whether controls should not be presumed to control plans contained in air quality and what other timeframes might be satisfy the not reasonably controllable or permits. First, control measures in air appropriate for this deference. In preventable criterion. In such a case, the quality permits may or may not be EPA- responding to this specific solicitation air agency should complete a case- approved and evaluated using the same for feedback, commenters provided a specific assessment of the rigor as controls in a SIP, FIP or TIP. range of options for SIP deference reasonableness of controls to satisfy the Second, the best available control including 3 years, 5 years, 10 years, not reasonably controllable or measures in an air quality permit apply reliance on the SIP until a new NAAQS to the permit holder and not to all preventable criterion. This case-by-case is adopted or until the EPA disapproves assessment would include the following sources potentially contributing or calls the SIP, and, as previously emissions to a monitored exceedance or components, which we are noted, no reliance on the SIP because promulgating as rule text: (1) Identify violation. While we are not deferring to any such deference is inappropriate. BACM controls in air quality permits, the natural and anthropogenic sources One commenter noted that a deference of emissions causing and contributing to we encourage air agencies to identify timeframe of 3 years is more consistent these measures in the collection of the monitored exceedance or violation, with design value averaging and the including the contribution from local controls that they determine constitute timeframe. We previously suggested in ‘‘reasonable’’ controls for purposes of sources, (2) identify the relevant SIP or the 2013 Interim Exceptional Events other enforceable control measures in addressing the not reasonably Implementation Guidance, and other place for these sources and the controllable or preventable criterion. commenters argued, that 10 years is implementation status of these controls, The EPA disagrees with the consistent with the timeframe for and (3) provide evidence of effective suggestion from a few other commenters maintenance plan updates. The EPA implementation and enforcement of to defer to provisions in infrastructure considered this information and is now reasonable controls, if applicable. As we SIPs to satisfy the not reasonably promulgating, as proposed, a deference identified earlier in this preamble, when controllable or preventable criterion. timeframe of 5 years. After reviewing we specify ‘‘local’’ sources, we mean CAA sections 110(a)(1) and 110(a)(2) feedback received during the comment those sources that are both within the require every state to develop and period, we retain our proposed language jurisdiction of the state or tribe and that submit to the EPA an ‘‘infrastructure that 5 years represents a reasonable are also in the vicinity of or are located SIP’’ for each NAAQS within 3 years of timeframe during which (1) the control upwind of the monitor with the the promulgation of a new or revised measures in a current SIP (or FIP or TIP) recorded exceedance or violation. NAAQS. While infrastructure SIPs address all event-relevant sources of ‘‘Local’’ sources could include, but are address a number of CAA requirements, current importance, (2) the control not limited to, large point sources (e.g., including the requirement to identify measures that were considered by the large industrial sources, electric power emission limits for specific pollutants, air agency and the EPA at the time the plants, airports, etc), nonpoint sources infrastructure SIPs are not required to EPA last approved the SIP (or FIP or (e.g., residential heating, asphalt paving, include attainment or maintenance TIP) are the same measures that are etc.), mobile sources (e.g., both on- and demonstrations and are not required to known and available at the time of a off-road vehicles, construction demonstrate that the controls on more recent event, and (3) the equipment, trains, and vessels), natural particular sources are ‘‘reasonable.’’ conditions in the area have not changed or biogenic sources (e.g., off-gassing Thus, the EPA-approved infrastructure in a way that would affect the from soil, animals and vegetation). SIPs do not necessarily constitute an approvability of the same SIP (or FIP or We identified in the proposal these assessment of those controls that are TIP) if it newly needed the EPA’s three components of a case-by-case reasonable to have in place to address approval. Additionally, as we discuss in assessment of the not reasonably air quality impacts from particular types Section IV.E.3 of this preamble, we controllable or preventable criterion and of events that may become the focus of encourage the use of 5 years of data solicited comment on including these exceptional events demonstrations. As when developing analyses to support components as regulatory language. One with measures in air quality permits, the clear causal relationship criterion commenter supported this suggestion, while we are not deferring to measures because we believe that 5 years of and, as a result, we are promulgating identified in infrastructure SIPs to ambient air data represent the range of associated rule text. Although no
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commenters opposed including the reasonable.47 In addition to the SIP, criterion. To do this, the air agency components as rule text, a number of state rules or local ordinances, air should ask the following questions: (1) commenters asked that we clarify our agencies could also identify control Do the control measures in the current expectations with respect to these measures in individual permits, NEAPs, SIP (or other programs) address all components. We do so here. SMP, other mitigation plans, or USDA/ event-relevant sources of current When identifying the sources of Natural Resources Conservation Service importance? (2) Are the control emissions causing and contributing to (NRCS)-approved Best Management measures that were considered by the the monitored exceedance or violation, Practices (BMPs) (discussed in more air agency and the EPA at the time the detail in Section IV.F.2.b of this the air agency should first discuss the EPA last approved the SIP the same preamble). The air agency may also scope of the analysis with the reviewing measures that are known and available consider recent Reasonably Available EPA Regional office. This scope will be at the time of the more recent event? Control Technology (RACT)/Best determined on a case-by-case basis and (3) Have the conditions in the area Available Control Technology (BACT)/ considering the specifics of the changed in a way that would affect the Lowest Achievable Emission Rate approvability of the same SIP if it newly individual event. For example, if an air (LAER) determinations in the affected agency claims that an event was needed the EPA’s approval? In our view area or in another area with similar an event is ‘‘not reasonably regional in nature, then the area of focus sources or other appropriate measures. controllable’’ if an exceedance or for the not reasonably controllable or This assessment should include a violation occurs even when reasonable preventable criterion would likely be review and description of any known controls were actually in place and any the county or counties involved in the instances of source noncompliance (e.g., ‘‘region.’’ If an affected air agency nearby facility upsets or malfunctions, further control would have been beyond claims that an exceedance or violation failure to comply with applicable rules what was reasonable. As indicated in was caused by an event originating in a such as vacant lot stabilization or these rule revisions, the EPA intends to nearby state, then the air agency would moisture requirements for area sources) consider these aspects when applying include in its assessment the area and that could have resulted in emissions of the concept of ‘‘reasonable controls’’ on the potentially contributing sources the relevant pollutant(s) that influenced anthropogenic sources. located between the subject upwind the monitored measurements on the The EPA notes that there are several source and the affected monitor. Once day(s) of the claimed events. The air instances in which this step-wise the air agency and the EPA determine agency would then identify the approach to addressing the not the appropriate area of analysis, the air implementation status of these controls reasonably controllable or preventable agency should identify, within the area and provide evidence of enforcement. criterion is not necessary. This analysis of analysis, those stationary, mobile (if As we indicated earlier, the EPA is not required when an air agency can applicable) and area sources and any generally expects evidence that the rely on deference to control measures other natural sources that emit the controls determined to be reasonable, if contained in a SIP (or FIP or TIP). It is pollutant or precursors that are the any, were effectively implemented and also not required for exceedances or subject of the demonstration.45 In doing appropriately enforced. violations caused by events whose this, the air agency should include, for After addressing these components emissions are solely from natural ‘‘major’’ point sources,46 the facility and in concluding that they have shown sources (e.g., wildfire; stratospheric name, the distance of the facility to the that reasonable measures to control the ozone intrusions; windblown dust from affected monitor, and emissions in impact of the event on air quality were natural, undisturbed landscapes; large- terms of tons per year (tpy) of the applied at the time of the event and that scale and high-energy high wind dust pollutant in question. Air agencies may the event was therefore not reasonably events, volcanic activity) as identify other point sources and area controllable, the air agency should then demonstrated by satisfying the clear apply the concept that if a set of control sources by category. causal relationship (discussed in more measures should reasonably have been For each source category and/or detail in Section IV.E.3 of this in place for emission sources that individual source, if appropriate, the air preamble). In these cases, after contribute to the event emissions, then agency should identify applicable addressing the clear causal relationship those controls must have been in place control measures in the SIP or in other criterion, the air agency should for the event to satisfy the not state rules or ordinances and provide a affirmatively state that the not reasonably controllable or preventable statement as to why these controls are reasonably controllable or preventable 47 To clarify, the EPA does not need to formally criterion is satisfied by the fact that the 45 A recent emissions inventory could serve as a approve an air agency’s rules and SIP before natural event was of a character that starting point when identifying sources of reasonable controls are officially in place for an could not have been prevented and emissions within a given area of analysis. Air exceptional events determination. These final rule could not have been controlled and that agencies should also consider other sources that revisions and final rule preamble indicate that we potentially contribute to event-related emissions will defer to controls in a SIP/FIP/TIP approved by there were no contributions of event- that may not be the focus of routine annual the EPA within 5 years of the date of the event related emissions from anthropogenic inventories, which are often required by federal, provided the controls are specific to the pollutant sources as demonstrated in the clear state or local rules for only a specific set of sources and contributing anthropogenic sources. Thus, a causal relationship showing. To clarify, or pollutants. SIP/FIP/TIP approved within 5 years of an event 46 The term ‘‘major’’ can vary by pollutant and satisfies reasonable controls, but an area could also once an air agency has satisfied the clear NAAQS and affected air agencies should discuss satisfy the not reasonably controllable or causal relationship criterion and has the expectation during the initial notification of a preventable criterion a number of other ways as shown that the subject exceedance or potential exceptional event process. Generally, discussed in this preamble. We also note that if an violation was caused by an event whose however, we would consider ‘‘major’’ to be the air agency has a record of other controls that are not thresholds used in the initial area designations yet part of a SIP/FIP/TIP (as could be the case for emissions are solely from natural process for the NAAQS in question. For example, an attainment, unclassifiable/attainment or sources, then the not reasonably for PM2.5, major point sources are those whose sum unclassifiable area or for a nonattainment or controllable criterion applies only to of PM precursor emissions (PM2.5 + NOX + SO2 + maintenance area undergoing SIP planning or emissions from natural sources/event VOC + NH3) are greater than 500 tpy based on the revision process) but that are implemented and most recent National Emissions Inventory (NEI) or enforced and not just contemplated, that we would and not to local sources. And, for SIP inventory. consider these controls to be SIP/FIP/TIP controls. natural sources, air agencies can satisfy
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the criterion with a statement similar to our decision should be promulgated in timeframe for enacting these measures that in the following example. rule text, the majority of commenters often depends on the widely-varying Consider, as an example, a indicated that expectations in guidance state/area-specific administrative stratospheric ozone intrusion event. were appropriate. These commenters requirements. In many cases, state and Stratospheric intrusions are by nature suggested that any formal local agencies are prohibited by state not reasonably controllable or communication notifying an air agency law from enacting ‘‘stricter than federal’’ preventable. If an air agency has shown of specific expectations regarding controls unless required by a federal in the clear causal portion of its reasonable controls that should be, but action such as a nonattainment demonstration that ozone transported are not yet, included in the SIP (or FIP designation or SIP call. Therefore, in from the stratospheric ozone intrusion or TIP) would be sufficient to override most circumstances, when a SIP (or FIP overwhelmingly caused each of the the deference to existing SIP (or FIP or or TIP) revision is required, such as identified exceedances, then it has TIP) controls. Commenters noted that when new regulations must be shown these are natural, intrusion such communications, either electronic incorporated or when an area receives a events and controls on anthropogenic or in hard copy, come from an new designation, we think it is sources are irrelevant. The air agency authorized person within the EPA and reasonable that agencies be given time can include the following statements in be transparent and publicly available. to enact appropriate control measures One commenter suggested that the its demonstration: after the need to do so has been ‘‘authorized’’ person be the Regional The analysis shows that ozone transported identified and justification is in place to Administrator. The EPA agrees with via a stratospheric ozone intrusion caused satisfy state laws. However, in some commenters that we would consider as each of the identified exceedances in circumstances, the requirement to revise [Section A] of this demonstration. We sufficient any formal communication conclude that the event identified should be notifying the affected air agency of SIP particular emission control measures in considered a natural, stratospheric ozone (or FIP or TIP) deficiencies with respect an implementation plan might be intrusion event. (An air agency may include to those controls that constitute pursuant to a SIP call under CAA this type of conclusory language in the reasonable controls for the sources and section 110(k)(5), which represents a natural events section of the demonstration.) pollutants that are contained within the determination by the EPA that the The analysis shows that ozone transported control measures in the existing via a stratospheric ozone intrusion caused SIP (or FIP or TIP) and are the subject each of the identified exceedances in of an exceptional events implementation plan are substantially [Section A] of this demonstration. We demonstrations.48 These inadequate. In the proposal, the EPA conclude that the event in question was a communications can be conveyed acknowledged that such SIP calls might stratospheric ozone intrusion event and electronically or in hard copy and come necessitate different treatment and took thereby an unpreventable and uncontrollable from any person within the EPA who is comment on that issue (see 80 FR natural event, and therefore not reasonably authorized to make such decisions. 81878). After fully considering the controllable or preventable. (An air agency Generally, these authorized persons issue, including comments received, we may include this type of conclusory language in the not reasonably controllable or could be branch chiefs, air program have determined that in such cases preventable portion of the demonstration.) managers, air division directors or the involving a SIP call, we do not think it equivalent highest manager who would be reasonable for an air agency to The proposal also discussed and exclusively oversees air programs, or continue to rely on those deficient solicited feedback on the role of prior regional administrators. measures in an exceptional events communications regarding expectations Related to these communications demonstration. Accordingly, we are for reasonable controls. The proposal regarding expectations for reasonable including regulatory text that extends indicated that the EPA would consider controls, the proposal invited comment the deference to emission control communications between the EPA and on whether there should be a grace or measures contained in a SIP that is the air agency when assessing grandfathering period before a SIP (or subject to a revision requirement to the ‘‘reasonableness’’ as part of assessing FIP or TIP) call involving a relevant due date for a required SIP revision. the technical information available to NAAQS that would effectively end the However, the regulatory text also the air agency at the time the event deference that applied prior to the SIP explains that when the control measures occurred and what should reasonably (or FIP or TIP) call. If an event were to applicable to the exceptional events have been in place at the time of the occur during such a grace period, the event for anthropogenic emission demonstration are subject to a SIP call existing SIP (or FIP or TIP) controls under CAA section 110(k)(5), the EPA sources that contribute to the event would still be given the deference. emissions. We noted that because will evaluate on a case-by-case basis the Several commenters supported, and no control measures in place to determine regulations and an area’s planning commenters opposed, incorporating this status are often evolving and changing whether emissions were reasonably concept into regulatory language, noting controlled at the time of the event. and because these changes and iterative that agencies should be given time to discussions often include issues enact appropriate control measures after 3. Clear Causal Relationship Supported regarding appropriate controls, the EPA has identified this need. by a Comparison to Historical including what controls would Commenters also noted that the Concentration Data constitute ‘‘reasonable’’ controls for a. Summary of Proposal exceptional events purposes, we 48 The EPA acknowledges that not all SIP (or FIP solicited comment on what form of or TIP)-related communications would negatively impact deference to the control measures contained The EPA proposed to revise the 2007 communication would be most effective Exceptional Events Rule language in conveying the EPA’s views to the within the SIP (or FIP or TIP). For example, if the EPA issued a letter notifying an air agency that its related to the clear causal relationship affected air agency and whether this existing SIP (or FIP or TIP)-approved controls criterion as follows: approach would be most appropriately appear to meet a new SIP (or FIP or TIP) addressed through guidance or requirement (i.e., BACM for the 2008 Ozone • To move the ‘‘clear causal NAAQS would also be BACM for 2015 Ozone relationship’’ element into the list of regulatory text. Although one NAAQS), this same correspondence could support commenter responding to this specific continued use of those controls as ‘‘reasonable’’ for criteria that explicitly must be met for solicitation for comment indicated that exceptional events purposes. data to be excluded
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• To subsume the ‘‘affects air quality’’ produced similar effects. As with the event is associated with a measured element into the ‘‘clear causal other exceptional events criteria, the concentration in excess of normal relationship’’ element EPA has used a weight of evidence historical fluctuations, including • To remove the ‘‘but for’’ element approach when reviewing analyses to background’’ and replace it with text • To remove the term ‘‘historical support a causal relationship between referring to a comparison to historical fluctuations’’ and replace it with text an event and a monitored exceedance or concentrations. Our intent with the referring to a comparison to historical violation. original language in the 2007 rule was concentrations, Showing that an event and elevated • to require air agencies to present event- To clarify that the comparison to pollutant concentrations occurred influenced concentration data along historical concentrations is not a fact simultaneously may not establish with historical data and to quantify the that must be proven causality. The clear causal relationship • difference, if any, between the event and To clearly identify in regulatory section of an exceptional events language the types of analyses that are the non-event concentrations thus demonstration should include analyses supporting the weight of evidence necessary and sufficient in a showing that the event occurred and demonstration to address the within the clear causal relationship that emissions of the pollutant of determination. We indicated in our comparison to historical interest resulting from the event were concentrations November 2015 proposal that the phrase transported to the monitor(s) recording ‘‘in excess of normal historical As noted in the proposal, CAA section the elevated concentration fluctuations, including background’’ is 319(b)(3)(B)(ii) requires that ‘‘a clear measurement(s). The last three of the vague and provides no additional value causal relationship must exist between bullets, summarized here, relate to to historical concentration comparisons. the measured exceedances of a national analyses associated with demonstrating Rather than use this language, we ambient air quality standard and the that a clear causal relationship exists proposed that every exceptional events exceptional event to demonstrate that between the event-related emissions and submittal must include a demonstration the exceptional event caused a specific the monitored exceedance or violation of a clear causal relationship between air pollution concentration at a (i.e., they relate to the technical the event-related emissions and the particular air quality monitoring treatment of data, which is the subject monitored exceedance or violation as location.’’ The clear causal relationship of this section of the preamble). We supported by a comparison to historical criterion establishes causality between discussed our proposed rationale for the the event and a measured exceedance or first three bullets in Section V.B.1 of concentration data. violation of a NAAQS. If the actual this preamble, Definition and Scope of To support the clear causal effect of the event were small, it may be an Exceptional Event. relationship generally, we proposed very difficult to distinguish the effect of The EPA proposed to remove the example analyses and guidance, shown the event with sufficient confidence regulatory language in the 2007 in Table 1, as being appropriate for most because many other factors could have Exceptional Events Rule that ‘‘[t]he event types.49
TABLE 1—EXAMPLE CLEAR CAUSAL RELATIONSHIP EVIDENCE AND ANALYSES
Example of clear causal relationship evidence Types of analyses/information to support the evidence
Comparison to Historical Concentrations ...... Analyses and statistics showing how the observed event concentration compares to the dis- tribution or time series of historical concentrations of the same pollutant. Occurrence and geographic extent of the event Special weather statements, advisories, news reports, nearby visibility readings, measure- ments from regulatory and non-regulatory (e.g., special purpose, emergency) monitoring sta- tions throughout the affected area, satellite imagery. Transport of emissions related to the event in Wind direction data showing that emissions from sources identified as part of the ‘‘not reason- the direction of the monitor(s) where the ably controllable or preventable’’ demonstration were upwind of the monitor(s) in question, measurements were recorded. satellite imagery, monitoring data showing elevated concentrations of other pollutants ex- pected to be in the event plume. Spatial relationship between the event, sources, Map showing likely source area, wind speed/direction and pollutant concentrations for affected transport of emissions and recorded con- area during the time of the event, trajectory analyses. centrations. Temporal relationship between the event and Hourly time series showing pollutant concentrations at the monitor in question in combination elevated pollutant concentrations at the mon- with wind speed/direction data in the area where the pollutant originated/was entrained or itor in question. transported. Chemical composition and/or size distribution Chemical speciation data from the monitored exceedance(s) and sources, size distribution (for PM2.5 to PM10) of measured pollution that data. links the pollution at the monitor(s) with par- ticular sources or phenomenon. Comparison of event-affected day(s) to specific Comparison of concentration and meteorology to days preceding and following the event, non-event days. comparison to high concentration days in the same season (if any) without events, compari- son to other event days without elevated concentrations (if any), comparison of chemical speciation data.
49 For purposes of summarizing example clear showing, neither of these guidance documents http://www2.epa.gov/sites/production/files/2015- causal relationship analyses in one place, the EPA presented this showing as part of the clear causal 05/documents/exceptevents_highwinds_guide_ has included an entry for the comparison to relationship. See specifically Interim Guidance on 130510.pdf and Interim Exceptional Events Rule historical concentrations showing in Table 1. The the Preparation of Demonstrations in Support of Frequently Asked Questions. U.S. EPA. May 2013. EPA notes that although the Interim High Winds Requests to Exclude Ambient Air Quality Data Available at http://www2.epa.gov/sites/production/ Guidance and the Interim Q&A document discussed Affected by High Winds Under the Exceptional files/2015-05/documents/eer_qa_doc_5-10-13_ the comparison to historical concentrations Events Rule. U.S. EPA. May 2013. Available at r3.pdf.
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We noted that we do not expect nor concentration’’ portion of the clear justify data exclusion must include a would all air agencies necessarily need causal relationship criterion shows how demonstration that the event affected air to include all of the evidence and the event-influenced data compare to quality in such a way that there exists analyses identified in Table 1, but rather other non-event related air quality data. a clear causal relationship between the to use available information to build a To clarify our expectations for the specific event and the monitored weight of evidence showing. The ‘‘comparison to historical exceedance or violation. We are also proposal also noted that the EPA concentrations’’ portion of the clear finalizing a modified version of our expects nonattainment areas to have causal relationship showing, we proposal that the demonstration include more sophisticated air quality proposed the evidence and analyses analyses comparing the claimed event- prediction tools, in some cases these shown in Table 2 as rule text to indicate influenced concentration(s) to tools include photochemical or types of statistics, graphics and concentrations at the same monitoring regression models and modeling explanatory text regarding comparisons site at other times to support the clear experience. Depending on the case-by- to past data. The proposed rule language causal relationship criterion. The case nature of the event, these tools may also indicated that the analyses modification to the language within 40 be beneficial, particularly in situations described in Table 2 are sufficient to CFR 50.14(c)(3)(iv)(C) retains the where the causality between the event satisfy the rule’s requirement regarding statement that the Administrator shall and a measured exceedance of a the comparison to historical not require an air agency to prove a NAAQS is not clearly established with concentration data and that the specific percentile point in the evidence and analyses identified in submitting air agency does not need to distribution of data. We note, in Table 1. prove any specific threshold or ‘‘in response to comments, that ‘‘proving’’ a As we have noted previously, the excess of’’ fact. EPA’s mission includes preserving and As with other evidence in an specific percentile point is different improving, when needed, the quality of exceptional events demonstration than ‘‘determining’’ a specific percentile our nation’s ambient air to protect submittal, the EPA will use a weight of point. Also in response to commenter human health and the environment. The evidence approach in reviewing feedback, we have removed the EPA accomplishes this by developing submitted demonstrations and will regulatory table identifying the specific the NAAQS for criteria pollutants, consider the ‘‘clear causal relationship’’ analyses associated with the comparison evaluating the status of the ambient air information, including the comparison to historical concentrations and as compared to these NAAQS using data to historical concentrations showing, included a revised version of the collected in the national ambient air along with evidence supporting the proposed table (see Table 2) in this quality monitoring network established other Exceptional Events Rule criteria. preamble as guidance. Although the under the authority of section 319(a) of table includes several changes and the CAA, and by overseeing the states’ b. Final Rule clarifications suggested by commenters, programs to improve air quality, as After considering the public we have retained the proposed analysis needed. Thus, ambient air quality data comments as described in the following that involves ‘‘determining’’ the are fundamental to the CAA and the text, many of which supported our percentile ranking of the concentration protection of public health. Data proposed approach, we are finalizing as in question because this assessment exclusions must also be consistent with proposed and revising the regulatory provides perspective for the clear causal the CAA. The ‘‘comparison to historical requirement that the demonstration to showing.
TABLE 2—EVIDENCE AND ANALYSES FOR THE COMPARISON TO HISTORICAL CONCENTRATIONS
Historical concentration evidence Types of analyses/supporting information a
1. Compare the concentrations on the claimed • Provide the data in the form relevant to the standard being considered for data exclusion. event day with past historical data. • Present monthly maximums of the NAAQS relevant metric (e.g., maximum daily 8-hour av- erage ozone or 1-hr SO2) vs presenting monthly or other averaged daily data as this masks high values for the most recent 5-year period that includes the event(s).b • Alternatively, if informative, include separate plots for each year (or season).c • See examples at https://www.epa.gov/sites/production/files/2015-05/documents/ideasfor showingeeevidence.pdf and Question 3 in the Interim Q&A document provides additional de- tail.d 2. Demonstrate spatial and/or temporal varia- • Prepare one or more time series plots showing the concentrations of the pollutant of interest bility of the pollutant of interest in the area. at the affected monitor and nearby monitors. • Compare concentrations on the claimed event day with a narrower set of similar days by in- cluding neighboring days at the same location (e.g., a time series of two to three weeks) and/or other days with similar meteorological conditions (possibly from other years) at the same or nearby locations with similar historical air quality along with a discussion of the me- teorological conditions during the same timeframe.e 3. Determine percentile ranking ...... • Determine 5-year percentile of the data requested for exclusion on a per monitor basis. • Determine the annual ranking of the data requested for exclusion. This assessment may be potentially helpful to show when the non-event concentrations during the year with the ex- clusion request were lower than surrounding years. 4. Plot annual time series to show the range of • Prepare a time series plot covering 12 months (or all months in which the data were col- ‘‘normal’’ values (i.e., Display Interannual Var- lected) overlaying at least 5 years of monitoring data from the event-influenced monitor to iability) f. show how monitored concentrations compare at a given time of year and/or coincide with the subject event. This plot will display the non-event variability over the appropriate sea- sons or number of years. • For annual comparisons, use the daily statistic (e.g., maximum daily 8-hour average, or maximum 1-hour) appropriate for the form of the standard being considered for data exclu- sion.
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TABLE 2—EVIDENCE AND ANALYSES FOR THE COMPARISON TO HISTORICAL CONCENTRATIONS—Continued
Historical concentration evidence Types of analyses/supporting information a
5. Identify all ‘‘high’’ values in all plots ...... • Label ‘‘high’’ data points as being associated with concurred exceptional events, suspected exceptional events, other unusual occurrences, or high pollution days due to normal emis- sions (provide evidence to support the identification when possible). • Include comparisons omitting known or suspected exceptional events points, if applicable. 6. Identify historical trends (optional if this • Describe how pollutant concentrations have decreased over the 5-year window, if applica- trends analysis provides no additional ble. ‘‘weight’’). • Identify and discuss trends due to emission reductions from planning efforts and/or imple- menting emission control strategies. • Identify and discuss trends or other variability due to meteorology or economics of an area. • If appropriate, create a plot to show how a downward trend in pollutant concentrations over the 5-year historical data record obscures the uniqueness of the event-related concentration. 7. Identify diurnal or seasonal patterns ...... • Show how the diurnal or seasonal pattern differs due to the event, if the event causes a change from typical diurnal/seasonal patterns. a While the EPA recommends using 5 years of data in analyses to support the comparison to historical concentrations, we recognize that there may be exceptions to using 5 years of data such as when 5 years of data are not available for a given monitor or in case-by-case analyses such as those for prescribed fire on wildlands. b Section 8.4.2.e of appendix W (proposed revisions at 80 FR 45374, July 29, 2015) recommends using 5 years of adequately representative meteorology data from the National Weather Service (NWS) to ensure that worst-case meteorological conditions are represented. Similarly, for exceptional events purposes, the EPA believes that 5 years of ambient air data, whether seasonal or annual, better represent the range of ‘‘nor- mal’’ air quality than do data from shorter periods. c ‘‘Season’’ can be pollutant and area specific. For example, the EPA defines ozone monitoring seasons in Table D–3 to Appendix D of Part 58: ‘‘Ozone Monitoring Season by State.’’ These seasons include, but may be longer than, an area’s typical photochemical ozone season. For exceptional events purposes, an area may want to include both the typical photochemical ozone season and the ‘‘season’’ in which the event happened (if they are different). Similarly, the ‘‘season’’ for PM may be in the winter (for areas influenced by wood smoke). The general concept behind ‘‘seasonal’’ analyses is to compare the season of anthropogenic pollutant generation to the season in which the event occurred. d Interim Exceptional Events Rule Frequently Asked Questions. U.S. EPA. May 2013. Available at http://www2.epa.gov/sites/production/files/ 2015-05/documents/eer_qa_doc_5-10-13_r3.pdf. e If an air agency compares the concentration on the claimed event day with days with similar meteorological conditions from other years, the agency should provide information regarding any changes in wind patterns or sources of emissions of the pollutant(s) of concern in the area, in- cluding increases or reductions in the emissions inventory, or other known source of emissions information, that could affect the concentration of the pollutant(s) of concern during the exceptional event. If an air agency compares the concentration on the claimed event day to days imme- diately preceding and following the event day, the air agency should discuss and compare the meteorology on those days. f The EPA does not intend to identify a particular historical percentile rank point in the seasonal or annual historical data that plays a critical role in the analysis or conclusion regarding the clear causal relationship.
In summarizing the clear causal background’’ to ‘‘a comparison to Commenters generally supported relationship section of its historical concentrations.’’ Commenters requiring a historical concentrations demonstration, the air agency should supportive of the proposal agreed with showing as part of the clear causal conclude with this type of statement: the EPA’s position that the phrase ‘‘in relationship criterion. Several of these ‘‘On [day/time] an [event type] occurred excess of normal historical fluctuations, commenters suggested that the EPA which generated pollutant X or its including background’’ is vague and include the proposed regulatory table precursors resulting in elevated provides no additional value to identifying these historical concentrations at [monitoring historical concentration comparisons. concentrations analyses as guidance in location(s)]. The monitored [pollutant] Commenters representing the the preamble rather than in regulatory concentrations of [ZZ] were [describe environmental community urged the text. Commenters offering this the comparison to historical EPA to maintain the ‘‘in excess of suggestion stated that because some of concentrations including the percentile normal historical fluctuations, including the identified analyses are required and rank over an annual (seasonal) basis]. background’’ language included in the others are optional, they are not Meteorological conditions were not 2007 rule, arguing that removing this universally applicable and are therefore consistent with historically high language simply because it is unclear best presented as guidance. As indicated concentrations, etc.’’ and ‘‘In addition to effectively weakens clean air in the final rule discussion, the EPA the comparison to historical protections. The EPA does not see this agrees with this approach and is concentrations showing, analyses X, Y change to the rule text as weakening the removing the table from the final rule and Z support Agency A’s position that CAA protections. An analysis of language and retaining it as guidance, the event affected air quality in such a measured concentrations, which with changes, in this preamble. way that there exists a clear causal inherently includes background, and A number of other commenters relationship between the specific event evidence that supports a comparison to provided feedback regarding the details and the monitored exceedance or historical concentrations is still required of the clear causal relationship criterion, violation and thus satisfies the clear to support the demonstration of the particularly asking that we lessen or causal relationship criterion.’’ clear causal criterion for the data remove certain analyses. Although we c. Comments and Responses exclusion request to qualify as an address these comments here and/or in exceptional event. Thus, the the Response to Comments document As indicated previously, numerous ‘‘comparison to historical that accompanies this final rule, we note commenters supported revising the concentrations’’ showing is not less that CAA section 319(b)(3)(B) requires regulatory language from ‘‘event is stringent than the ‘‘in excess of normal the EPA to promulgate regulations, associated with a measured historical fluctuations, including which ‘‘at a minimum’’ provide that concentration in excess of normal background’’ showing because the exceptional events must be historical fluctuations, including technical analysis remains robust. ‘‘demonstrated by reliable, accurate
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data.’’ The requirement for a periods. We recognize, however, that modeled data, which are inherently ‘‘demonstration’’ necessarily imposes some monitors do not have 5 years of predicted or estimated, do not carry the data-driven analyses. data and/or may have periods of invalid same weight under a weight of evidence One commenter requested that the data. The EPA recognizes that there may approach. Additionally, because these EPA eliminate what is now Table 2 in be exceptions to using 5 years of data. monitoring data are readily available this preamble from both rule and One commenter suggested that an and accessible, these analyses are also guidance because the EPA did not appropriate comparison to historical relatively easy to produce. provide an acceptable range of concentrations for prescribed fires may In the same table, commenters asked percentiles or a process/methodology to involve ‘‘visual observations and/or for clarification regarding ‘‘seasonal’’ determine whether the historical modeled impacts based on biomass analyses. In response to this comment, concentrations showing had been consumption or other ecological the EPA has added a new footnote satisfied. In response to this commenter, parameters’’ rather than comparisons clarifying that ‘‘season’’ can be pollutant the EPA notes that comparisons to using 5 years of monitoring data. The and area specific. For example, the EPA historical concentrations help build a commenter explains that while we were defines ozone monitoring ‘‘seasons’’ in weight of evidence showing for the clear not measuring air quality impacts 100 40 CFR part 58, appendix D, Table D– causal relationship criterion and add years ago, current fuel models may be 3, ‘‘Ozone Monitoring Season by State.’’ perspective to other analyses that air used to estimate the area’s fire history These seasons include, but may be agencies may use in their clear causal and, thus, historical concentrations longer than, an area’s typical showing. A demonstration may be less influenced by smoke. The EPA agrees photochemical ozone season. For compelling if some evidence is that the commenter’s comparative exceptional events purposes, an area inconsistent with the description of how analysis for prescribed fire on wildland may want to include both the typical the event caused the exceedance. For could supplement the comparison to photochemical ozone season and the example, if an air agency describes an historical concentrations using ‘‘season’’ in which the event happened event as a regional dust storm or monitoring data as part of the clear (if they are different). Similarly, the wildfire, then the EPA anticipates that causal relationship showing. The EPA ‘‘season’’ for PM may be in the winter most or all monitors within the same acknowledges that current fuel models (for areas influenced by wood smoke). regional scale would be similarly could incorporate a timeframe for The general concept behind ‘‘seasonal’’ affected by the event. That is, the EPA comparison that is longer than 5 years analyses is to compare the season of expects that the demonstration elements and could incorporate contributions anthropogenic pollutant generation to and factors (e.g., clear causal from both prescribed fire and wildfire. the season in which the event occurred. relationship, reasonable controls, We further note that such modeling Continuing with additional requested meteorology, wind speeds) would also could support the clear causal clarifications regarding Table 2, another support the case for a regional event. relationship by showing that a given commenter asked that we clarify the Comparison of concentrations and observed ambient concentration is language ‘‘time horizon.’’ As a result of conditions at other monitors could thus similar to concentrations associated the modifications to this table, we no be very important for the demonstration with past fires.50 Such modeling, of a clear causal relationship. however, is not a substitute for the longer use this term. Another Alternatively, eliminating plausible comparison to historical concentrations commenter asks that we revise the non-event causes may also support a using monitoring data. The title of CAA language in footnote ‘‘e’’ to Table 2, causal relationship between the event section 319(b) is ‘‘Air quality which reads ‘‘. . . the agency should and the elevated concentration. In monitoring data influenced by also verify and provide evidence that response to the commenter’s request to exceptional events.’’ The language at the area has not experienced significant eliminate the showing based on a lack section 319(b)(3)(B)(ii) requires that ‘‘a changes in wind patterns, and that no of information about an acceptable clear causal relationship must exist significant sources in the area have had range of percentiles or a process/ between the measured exceedances of a significant changes in their emissions of methodology to determine whether the national ambient air quality standard the pollutant of concern’’ to ‘‘. . . the criterion has been satisfied, the EPA and the exceptional event to agency should provide information points to language in this section of the demonstrate that the exceptional event regarding any changes in wind patterns preamble and rule text that provides caused a specific air pollution or sources of emissions of the such criteria by indicating that the concentration at a particular air quality pollutant(s) of concern in the area, analyses described in Table 2 are monitoring location.’’ Monitoring data including increases or reductions in the sufficient to satisfy the rule’s are at the core of the rule. Generally, the emissions inventory that could affect requirement regarding the comparison form of most primary NAAQS (carbon the pollutant concentration during the to historical concentration data and that monoxide and lead excluded) relies on exceptional event.’’ The EPA agrees that the submitting air agency does not need 3 years of data. Regulatory the suggested language better conveys to prove any specific threshold or ‘‘in determinations associated with these our intent to require details of any excess of’’ fact (see 40 CFR NAAQS employ data from regulatory changes rather than evidence of lack of 50.14(c)(3)(iv)(C)). monitors. Therefore, if an exceptional changes. We have incorporated the In response to other specific event influences a regulatory monitor commenter’s suggested language with comments regarding the analyses in that produces data, which will be used the following revision into the footnote Table 2, two commenters noted that a for a regulatory decision, 3 years of data in Table 2 of this preamble: ‘‘. . . the comparison involving 5 years of data is will be available. Comparisons of agency should provide information an inappropriate time for the monitored event-influenced data to regarding any changes in wind patterns comparison to historical concentrations. or sources of emissions of the As we note in footnote ‘‘a’’ to Table 2, 50 While this comparison contributes to pollutant(s) of concern in the area, we believe that 5 years of ambient air plausibility, it does not necessarily mean that in the including increases or reductions in the data, whether seasonal or annual, better subject case, the exceedance or violation was not emissions inventory, or other known caused by some other source or factor. The represent the range of ‘‘normal’’ air comparison to actual historical concentrations on source of emissions information, that quality than do data from shorter days not affected by fire can make this point. could affect the concentration of the
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pollutant(s) of concern during the Exceptional Events Rule. We simply be so noted and reported to the exceptional event.’’ repeated these event categories because appropriate control agency. If they In response to a commenter’s request they were specifically identified and constitute a violation, legal remedies are to clarify that the burden on the air discussed in the preamble to the 2007 available to relevant parties. In agency does not change with moving the Exceptional Events Rule and we wanted summary, if a malfunction is caused by ‘‘clear causal relationship’’ element into to acknowledge our continued belief or results in source noncompliance, the list of criteria that explicitly must be that the identified events could be then the resulting emissions cannot be met for data to be excluded, we affirm considered ‘‘exceptional.’’ The AQS considered for exclusion under the that the burden does not increase. In our database contains a more detailed list of Exceptional Events Rule in light of the rule revisions, we have clarified that air other events that may also be identified plain language of CAA section agencies must address all three of the for consideration. The EPA will 319(b)(1)(B)(iii). However, if the core statutory elements and implicit consider other types of events on a case- malfunction was not caused by nor did concepts of CAA section 319(b) (i.e., the by-case basis. it result from source noncompliance event affected air quality in such a way Based on our implementation (e.g., it resulted from an act of nature, that there exists a clear causal experience, our proposal, and such as a lightning strike) AND if the relationship between the specific event commenter feedback, the following resulting emissions caused a NAAQS and the monitored exceedance or sections clarify details for other exceedance or violation AND if it violation, the event was not reasonably potential exceptional events categories: otherwise meets the requirements of the controllable or preventable and the Transported pollution, wildland fires Exceptional Events Rule, then the event was caused by human activity that (including wildfires and prescribed emissions from the malfunction could is unlikely to recur at a particular fires), stratospheric ozone intrusions, be considered for exclusion under the location or was a natural event) in an and high wind dust events. We discuss provisions of 40 CFR 50.14. exceptional events demonstration. Prior each of these event categories in the to these rule revisions, the elements following sections of this preamble. 1. Transported Pollution ‘‘affects air quality,’’ ‘‘not reasonably Several commenters provided controllable or preventable,’’ and feedback on the EPA’s list of identified, We did not propose any new guidance ‘‘human activity unlikely to recur at a but not discussed, potential exceptional or specific regulatory language particular location or a natural event’’ events. One commenter noted that addressing the transported pollution were included in the definition of an fireworks cannot be an exceptional that could be considered for exclusion exceptional event, while the event. This comment is beyond the under the Exceptional Events Rule. requirement at 40 CFR 50.14(c)(3)(iv) scope of this rulemaking because we did Rather, the proposal discussed the that a ‘‘demonstration to justify data not propose to change our consideration provisions within the CAA that provide exclusion shall provide evidence’’ of fireworks under the Exceptional regulatory relief for, or otherwise included addressing the exceptional Events Rule and did not open this issue regulate, transported pollution and events definitional requirements, ‘‘clear for comment (see additional explanation identified the circumstances under causal relationship,’’ ‘‘historical in footnote 51). which air agencies can use these fluctuations’’ and ‘‘but for.’’ Based on Another commenter asked why the provisions. While our focus in this our experience implementing the rule, it EPA added as an explanation for the action is the Exceptional Events Rule is more clear to explicitly include all of ‘‘chemical spills and industrial (CAA section 319(b)), we also discuss the elements in a single place in the accidents’’ event type the following transport under other CAA sections for regulatory language. footnote: ‘‘A malfunction at an context (i.e., 179B (International Transport), 182(h) (Rural Transport F. Treatment of Certain Events Under industrial facility could be considered Areas), 110(a)(2)(D)(i)(I) (Interstate the Exceptional Events Rule to be an exceptional event if it has not resulted in source noncompliance, Transport) and 126 (Interstate The preamble of the November 2015 which is statutorily excluded from Transport)). We are finalizing the proposal stated that air quality data consideration as an exceptional event, language from our proposal with affected by the following event types are see CAA 319(b)(1)(b)(iii), and if it additional clarifications resulting from among those that could meet the otherwise meets the requirements of the commenter feedback as guidance in this definition of an exceptional event and Exceptional Events Rule.’’ While we are preamble. qualify for data exclusion provided all deleting the footnote in this final action, a. Transported Pollution Within the requirements of the rule are met: (1) we note that we added the footnote to Exceptional Events Rule Chemical spills and industrial the proposal to clarify the position accidents, (2) structural fires, (3) stated in previous EPA guidance 52 that terrorist attacks, (4) volcanic and To be considered for data exclusion, limited noncompliance of local sources transported pollution must meet all of seismic activities, (5) natural disasters can be expected from time to time as a and associated cleanup, and (6) the Exceptional Events Rule criteria. 51 result of process upsets or Specifically, transported pollution must fireworks. We did not propose any malfunctioning control equipment. changes to the definition of exceptional be event-related AND be either natural These events are usually classified as or caused by a human activity unlikely event to address these event types nor ‘‘upsets’’ or ‘‘malfunctions’’ as defined did we intend to imply that these are to recur at a particular location (see 40 by the applicable State or local agency CFR 50.14(c)(3)(iv)(E)). Human activities the only event types that could be regulations, or they may be considered considered for data exclusion under the unlikely to recur at a particular location a violation of applicable emission or could include some of the event types opacity limits. If these events are caused 51 Of these noted event types, the regulatory mentioned in the introduction to this language at 40 CFR 50.14 only specifically by upsets or malfunctions, they should section of this preamble, such as addresses fireworks. We did not propose any chemical spills, industrial accidents, or revisions to the exclusion at 40 CFR 50.14(b)(2) for 52 Guideline on the Identification and Use of Air terrorist activities. Routine emissions fireworks that are demonstrated to be significantly Quality Data Affected by Exceptional Events (the integral to traditional national, ethnic or other Exceptional Events Policy), U.S. EPA, OAQPS, generated by and transported from cultural events. EPA–450/4–86–007, July 1986. anthropogenic sources are not
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exceptional events.53 Additionally, when an event in one part of a state, information and analytical methods for transported emissions from natural such as a county or air district, affects each area’s unique situation. sources must be event-related (e.g., air quality in another part of the same As with all exceptional events wildfires, stratospheric ozone intrusion, state, assuming that the event occurs on demonstrations, the EPA will evaluate Saharan dust) versus ongoing on a daily land subject to state authority (versus the information on a case-by-case basis basis to qualify for data exclusion under tribal government authority). For cases based on the facts of a particular the Exceptional Events Rule. Natural involving intrastate transport, the state exceptional event including any emissions that occur every day and or local air agency should evaluate information and arguments presented in contribute to background levels, such as whether contributing event emissions public comments received by the state routine biogenic emissions of ozone from those parts of the state located in its public comment process or by the precursors from vegetation and soils, do between the subject upwind source and EPA in a notice-and-comment not meet the definition of an the affected monitor were not regulatory action that depends on the exceptional event because they are not reasonably controllable or preventable. data exclusion. deviations from normal or expected Section IV.E.2 of this preamble b. Other Transport Mechanisms Within conditions. Despite being natural, they discusses the not reasonably the CAA are not ‘‘events.’’ controllable or preventable criterion in In most cases, of the previously more detail. Because there may be In the following paragraphs, we identified CAA sections, the special considerations regarding air discuss other provisions within the mechanisms in the Exceptional Events agencies’ authority to regulate activity CAA that provide regulatory relief for, Rule provide the most regulatory on federally-owned and managed lands or otherwise regulate, transported flexibility in that air agencies can use (e.g., national parks within the state), pollution and identify the circumstances under which air agencies these provisions to seek relief from states and tribes should discuss with the can use these provisions. designation as a nonattainment area.54 appropriate FLM or other federal agency • CAA section 179B, International Because the Exceptional Events Rule and their EPA Regional office early in Transport—CAA section 179B allows may be used during the initial area the development of an exceptional states to consider in their attainment designations process and may make a events demonstration if they believe demonstrations whether a difference in an attainment versus a that sources on federally-owned and nonattainment area might have met the nonattainment decision, the EPA managed land contributed event-related NAAQS by the attainment date ‘‘but believes that the Exceptional Events emissions to a degree that raises issues for’’ emissions contributing to the area Rule will often be the most appropriate of reasonable control. originating outside the U.S. This mechanism to use when addressing Interstate and international transport provision addresses sources of transported emissions from out-of-state events are different than intrastate emissions originating outside of the U.S. natural events or events due to human events. As noted in Section IV.E.2 of and provides qualifying nonattainment activity that is unlikely to recur at a this preamble and in the final regulatory areas some regulatory relief from particular location. language at 40 CFR 50.14(b)(8)(vii), the otherwise-applicable additional If an air agency determines that the EPA maintains that it is not reasonable planning and control requirements Exceptional Events Rule is the most to expect the downwind air agency (i.e., should the area fail to reach attainment suitable approach to address the state or tribe submitting the by its deadline. It does not provide a contributions from event-related demonstration) to have required or pathway for regulatory relief from transported emissions, then the air persuaded the upwind foreign country, designation as a nonattainment area; agency must consider the source(s) of state or tribe to have implemented rather, CAA section 179B applies emissions contributing to the controls on sources sufficient to limit following the initial area designations exceedance or violation to determine event-related emissions in the process. how to address individual Exceptional downwind state. As with any • CAA section 182(h), Rural Events Rule criteria, specifically the not demonstration, the submitting Transport Areas—CAA section 182(h) reasonably controllable or preventable (downwind) state should identify all authorizes the EPA Administrator to criterion and the human activity natural and anthropogenic contributing determine that certain ozone unlikely to recur or a natural event sources of emissions (both local/in-state nonattainment areas can be treated as criterion. and out-of-state) to show the causal rural transport areas, which provides Under the CAA, the EPA generally connection between an event and the relief from more stringent requirements considers a state (not including areas of monitored exceedance or violation. associated with higher nonattainment Indian country) to be a single Although the downwind state must still area classifications (i.e., ozone responsible actor. Accordingly, neither assess potential contribution from in- classifications above Marginal). Under the EPA nor the 2007 Exceptional state sources as discussed in Section CAA section 182(h), a nonattainment Events Rule provides special IV.E.2 of this preamble, we are area may qualify as a Rural Transport considerations for intrastate scenarios finalizing regulatory language at 40 CFR Area if it does not contain emissions 50.14(b)(8)(vii) that the event-related sources that make a significant 53 An example of routine emissions generated by and transported from anthropogenic sources might emissions that were transported in the contribution to monitored ozone include emissions of ozone precursors or directly downwind state are ‘‘not reasonably concentrations in the area or in other emitted particulate matter (or PM precursors) from controllable or preventable’’ for areas, and if the area does not include one state or foreign country’s power plants purposes of data exclusion. If the event- and is not adjacent to a Metropolitan transported into another state or the U.S. The CAA provides other mechanisms like 179B (for related emissions are international in Statistical Area. Generally, an area international transport) or 110(a)(2)(D) and/or 126 origin and affect monitors in multiple qualifies as a Rural Transport Area (for interstate transport) to address these types of states or regions, the EPA may assist because it does not contribute to its own emissions. affected agencies in identifying or another area’s nonattainment 54 The CAA section 179B (International problem; rather, ozone exceedances are Transport) and CAA section 182(h) (Rural Transport approaches for evaluating the potential Areas) apply following, or concurrent with, the impacts of international transport and due to transported emissions, which initial area designations process. determining the most appropriate could be international, interstate or
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intrastate in origin. The Rural Transport background ozone concentrations and occasionally and thus seem ‘‘event- Area determination can be made during longer duration emissions sources such like.’’ or after the initial area designations and as biogenics, lightning and international 2. Wildland Fires classifications process. transport. We provide some clarification • CAA section 110(a)(2)(D)(i)(I), in this section of the preamble, but also The proposal noted that fires on Interstate Transport—CAA section refer to the discussion in Section IV.B.3, wildland can play an important 110(a)(2)(D)(i)(I) requires states to which discusses rule applicability to ecological role across the nation, develop and implement SIPs to address background ozone. benefiting those plant and animal the interstate transport of emissions Commenters also asked for species that depend upon natural fires from sources within their jurisdiction. clarification regarding assessing ‘‘event- for propagation, habitat restoration and Specifically, this provision requires related emissions that originate outside reproduction. The proposed rule also each state’s SIP to prohibit ‘‘any source of the boundaries of the state within noted the large contribution that or other type of emissions activity which the concentration at issue was wildfire can make to air pollution within the State from emitting any air monitored’’ for purposes of the not (including periodic high PM2.5 and pollutant in amounts which will reasonably controllable or preventable PM10, and VOC and NOX, which are significantly contribute to criterion. As discussed in Section IV.E.2 precursors to PM2.5, PM10 and ozone) nonattainment’’ of any NAAQS in of this preamble, the state or local air and wildfire’s potential threat to public another state, or which will ‘‘interfere agency should evaluate whether safety. The proposal further recognized with maintenance’’ of any NAAQS in contributing event emissions from those that these adverse effects can be another state. When the EPA parts of the state located between the mitigated through management of promulgates or revises a NAAQS, each subject upwind source and the affected wildland vegetation, including planned state is required to submit a SIP monitor were not reasonably prescribed fires and letting some addressing this interstate transport controllable or preventable. wildfires proceed naturally (typically provision as to that NAAQS within 3 Another commenter suggests that those with lower fire intensity and years. The EPA interprets this interstate where meteorological conditions play a severity). transport provision to address pronounced role in transporting extra- The proposal also recognized, anthropogenic sources of emissions jurisdictional emissions, those consistent with the EPA’s past practice, from other states, and not to address emissions would not prevent that both wildfires and prescribed fires, natural sources of emissions. under certain circumstances, can be • CAA section 126, Interstate classification as a natural event. The commenter notes that because recurring considered exceptional events. The Transport—CAA section 126 provides preamble to the 2007 Exceptional states 55 and political subdivisions with natural events may qualify as exceptional events under the Events Rule, however, used unclear or a mechanism to petition the undefined fire-related terminology, Administrator for a finding that ‘‘any Exceptional Events Rule, international event-related emissions, because they making the preparation of some fire- major source or group of stationary related demonstrations particularly sources emits or would emit any air are transported by recurring natural meteorological mechanisms, could also challenging. Recognizing some of these pollution in violation of the prohibition unique challenges associated with fires 56 be exceptional events even if the source of CAA 110(a)(2)(D)(i).’’ Where the on wildland, we proposed a number of EPA grants such a petition, an existing of emissions in another country is anthropogenic. The commenter fire-related revisions to the Exceptional source may operate beyond a 3-month Events Rule for wildfires and prescribed period only if the EPA establishes continued that if the EPA does not 57 consider all international emissions to fires that occur on wildland. emissions limitations and compliance These revisions included proposed be ‘‘natural events,’’ then the data schedules to bring about compliance regulatory language for certain fire- associated with international emissions with CAA section 110(a)(2)(D)(i) as related definitions, clarification and could still qualify for exclusion under expeditiously as practicable, but no later associated regulatory text related to the Exceptional Events Rule in those than 3 years after such finding. Similar using SMP and BSMP to satisfy instances in which the magnitude of to our interpretation for CAA section exceptional events demonstration and transported emissions or the resulting 110(a)(2)(D)(i), the EPA interprets the program implementation elements, and concentrations are ‘‘unusual.’’ As we reference to ‘‘major source or group of new Exceptional Events Rule provisions have noted, over the course of stationary sources’’ in CAA section 126 to specifically address prescribed fire implementing the Exceptional Events to refer to anthropogenic sources of exceptional events issues. We provide Rule, we have come to realize that an emissions from other states. The EPA’s additional detail in the separate sections event needs to be defined by the source interpretation is that this provision is on wildfires (Section IV.F.2.a of this of the emissions. If the underlying not intended to address natural sources preamble) and prescribed fire (Section source is a natural event (e.g., wildfire) of emissions. IV.F.2.b of this preamble). and the emissions influence a regulatory As we implement the changes we are c. Comments and Responses monitor, then it can be considered for promulgating in this regulatory action, Several commenters asked that the exclusion under the Exceptional Events EPA clarify how the provisions in the Rule. If the underlying source is 57 While we proposed, and are finalizing, Exceptional Events Rule apply to anthropogenic then it can only be provisions only for fires that occur predominantly considered under the Exceptional on wildland, we did not intend to restrict wildfires 55 Tribes with treatment as a state authority Events Rule if the emissions from the on other types of land from receiving similar (under the TAR) for CAA section 126 could also use original source is unlikely to recur at a treatment as wildfires on wildland. In addressing this CAA provision. the not reasonably controllable or preventable 56 The text of CAA section 126 codified in the particular location. The meteorological criterion in a demonstration for a wildfire that is United States Code cross references CAA section processes that result in pollutant not on wildland, air agencies should state that 110(a)(2)(D)(ii) instead of section 110(a)(2)(D)(i). transport are ongoing and thus not an available resources were reasonably aimed at The courts have confirmed that this is a scrivener’s event, even though their influence on suppression and avoidance of loss of life and error and the correct cross reference is to section property and that no further efforts to control air 110(a)(2)(D)(i), See Appalachian Power Co. v. EPA, ambient concentrations at a particular emissions from the fire would have been 249 F.3d 1032, 1040–44 (D.C. Cir. 2001). time and location may be observed only reasonable.
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we remain committed to working with The proposed definition for wildland areas of wildland are very remote and federal, state, local, tribal and private considered the types of human rugged, and thus not easily reached and land owners/land managers and state, intervention that could affect whether a traversed. These factors generally limit tribal and local air quality agencies to land is considered a ‘‘wildland’’ and preparation time and on-site resources effectively manage prescribed fire use to stated that the presence of fences to to prevent or control the initiation, reduce the impact of catastrophic limit the movement of grazing animals, duration or extent of a wildfire. Also, by wildfire-related emissions on ozone, or of infrastructure to provide water to their nature, catastrophic wildfires PM10 and PM2.5. grazing animals, would not prevent a typically present some risk of property land area from being wildland. The a. Wildfires damage, ecosystem damage and/or loss proposal further clarified that cultivated of life (of the public or firefighters), Summary of Proposal. The EPA cropland (i.e., a field that is plowed or which is a strong motivation for proposed the following guidance, disked or from which crops are removed appropriate suppression and control clarifications and rule revisions to assist on an annual or more frequent basis) is efforts. The EPA believes that land air agencies preparing exceptional not wildland and land areas on which managers and other fire management events demonstrations for wildfires. nursery stock is grown to marketable entities have the motivation and the best (i) Definition of wildland and wildfire. size (e.g., Christmas tree farms) are information for taking action to The EPA proposed to codify in generally not wildland unless they are reasonably prevent and limit the extent regulatory language the definition of ‘‘wild’’ in terms of a having only limited of wildfires on wildland, thus also ‘‘wildland’’ by using the October 2014 human entrance and intervention for National Wildfire Coordinating Group controlling the resulting emissions. management or removal purposes Therefore, the EPA believes that it is not (NWCG) Glossary of Wildland Fire thereby resulting in a complex Terminology 58 definition that a useful to require air agencies to include ecosystem. The proposed rule indicated in their individual wildfire exceptional wildland is ‘‘an area in which human that managed timberlands 65 could be activity and development is essentially events demonstrations descriptions of considered wildland if they have a prevention and control efforts employed non-existent, except for roads, railroads, complex ecosystem affected by only by burn managers/wildfire responders power lines, and similar transportation limited human entrance and to support a position that such efforts facilities. Structures, if any, are widely intervention. We invited comment on were reasonable. The EPA therefore scattered.’’ As noted in the proposal, incorporating these examples of land 59 proposed in regulatory language a wildland can include forestland, use types into the regulatory definition 60 61 rebuttable presumption that every shrubland, grassland and of wildland. wetlands.62 This proposed definition of We also proposed in regulatory text, wildfire on wildland satisfies the ‘‘not wildland includes lands that are the following definition of ‘‘wildfire,’’ a reasonably controllable or preventable’’ predominantly wildland, such as land ‘‘wildfire is any fire started by an criterion unless evidence in the record in the wildland-urban interface.63 64 unplanned ignition caused by lightning; demonstrates otherwise and that volcanoes; other acts of nature; satisfying this criterion for wildfires on 58 National Wildfire Coordinating Group. unauthorized activity; or accidental, wildland would involve referencing the Glossary of Wildland Fire Terminology, PMS 205. human-caused actions; or a prescribed appropriate regulatory citation in the October 2014. We are retaining our proposed demonstration. The proposal further definition of the wildland although the NWCG has fire that has been declared to be a revised its October 2014 glossary. The October 2015 wildfire. A wildfire that predominantly indicated that in situations in which a glossary, which became available after the occurs on wildland is a natural event.’’ fire manager could have suppressed or November 2015 exceptional events proposal, is (ii) Not reasonably controllable or contained a wildfire but allowed the fire available at http://www.nwcg.gov/glossary-of- to continue burning through an area wildland-fire-terminology. preventable. As proposed and as with 59 Forestland is land on which the vegetation is other natural events, the ‘‘not with a current, in-place land dominated by trees or, if trees are lacking, the land reasonably controllable or preventable’’ management plan calling for restoration shows historic evidence of former forest and has not criterion applies to wildfires. The through natural fire or mimicking the been converted to other uses. Definition available proposed rule articulated that because natural role of fire, that we would at https://globalrangelands.org/glossary. expect the fire manager to employ 60 Shrubland is land on which the vegetation is wildfires on wildland are unplanned, dominated by shrubs. Definition available at fire management agencies generally appropriate BSMP as described in https://globalrangelands.org/glossary/. have either no advanced notice or Section IV.F.2.b of this preamble when 61 Grassland is land on which the vegetation is limited and uncertain notice of wildfire possible. dominated by grasses, grass like plants, and/or forbs. This definition has changed since the EPA ignition and location. In addition, many (iii) Coordinated communications. As proposed the definition of grassland. We are stated in the proposal, regardless of the retaining the proposed definition. The current the wildland and our proposed description of the considerations for wildfires, the EPA Global Rangelands definition is available at https:// wildland-urban interface although the NWCG has globalrangelands.org/glossary. revised its October 2014 glossary. The October 2015 urges land managers and air agencies to 62 Wetlands, as defined in 40 CFR 230.3(t), means glossary, which became available after the coordinate, as appropriate, in those areas that are inundated or saturated by November 2015 exceptional events proposal, is developing plans and appropriate surface or ground water at a frequency and duration available at http://www.nwcg.gov/glossary-of- public communications regarding sufficient to support, and that under normal wildland-fire-terminology. public safety and reducing exposure in circumstances do support, a prevalence of 64 We would generally treat a large prescribed fire vegetation typically adapted for life in saturated soil in a wildland-urban interface area as a prescribed instances where wildfires are potential conditions. Wetlands generally include swamps, fire on wildland, subject to the prescribed fire exceptional events and contribute to marshes, bogs and similar areas. provisions described in this document. We do not exceedances of the NAAQS. 63 The wildland-urban interface is the line, area expect a small prescribed fire in an interface area Coordinated efforts can help air or zone where structures and other human (e.g., a prescribed fire ignited by a single landowner development meet or intermingle with undeveloped on his/her personal property) to generate emissions agencies satisfy the Exceptional Events wildland or vegetative fuels. The term describes an that would raise exceptional events issues. Rule obligation at 40 CFR 51.930 that air area within or adjacent to private and public 65 Timberland is land on which the natural agencies must provide public notice and property where mitigation actions can prevent potential vegetation is forest. It may be managed public education and must provide for damage or loss from wildfire. See, Glossary of primarily for the production and harvest of timber. Wildland Fire Terminology, PMS 205. October Definition available at https://globalrangelands.org/ implementation of reasonable measures 2014. We are retaining our proposed definition of glossary/. to protect public health when an event
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occurs.66 Also, when wildfire impacts which is not intended in this action. be a wildfire’’ from the definition are frequent and significant in a Additionally, when considering the because they disagree with allowing particular area, land managers, land term ‘‘wildland,’’ the word ‘‘wild,’’ by burners to ‘‘declare’’ a prescribed fire to owners, air agencies and communities definition, implies a natural, be a wildfire. Commenters noted that may be able to lessen the impacts of uncultivated or uninhabited region. burn managers might make such a wildfires by working collaboratively to Conversely, ‘‘development’’ implies declaration for reasons other than their take steps to minimize fuel loading in growth, construction and, potentially, unanticipated inability to control the areas vulnerable to fire.67 Fuel load groupings of buildings. Modifying the deliberately ignited fire. We note that minimization steps can consist of both definition as proposed by the the proposed definition of wildfire did prescribed fire and mechanical commenters could be interpreted to not require that the objective be to put treatments, such as using mechanical mean that parcels of land with some out such a fire for it to meet the equipment to reduce accumulated empty space between groupings of definition. When an unplanned fire on understory. buildings (e.g., cultivated and inhabited wildland does not threaten catastrophic Final Rule. We are finalizing, as areas) could be wildland. This is not our consequences (e.g., consequences to proposed, for the reasons discussed in intent. Another commenter suggested public health, safety or property) and our proposal and herein, and as that because ‘‘wild’’ implies minimal when the wildfire is burning on land supported by several commenters, the ongoing ecological impacts from human that would otherwise be identified for following definition of wildland: activity and not an infrequent presence ecosystem management (e.g., fuels ‘‘Wildland means an area in which of humans and their structures that we management through prescribed human activity and development are change the regulatory definition to burning), it may be appropriate to allow essentially non-existent, except for ‘‘wildland means an area where the the fire to continue burning under roads, railroads, power lines, and impact on the ecosystem from human managed conditions. This fire similar transportation facilities. development and agriculture is management scenario was not our Structures, if any, are widely scattered.’’ essentially nonexistent, except for intended focus in proposing the In finalizing this definition, we are widely separated roads, railroads and ‘‘declaration’’ language. Rather, as stated retaining, as guidance, the proposed power lines.’’ While we agree with the in the proposal, ‘‘a prescribed fire that commenter’s perspective regarding very examples of land use types and types of has been declared to be a wildfire’’ limited human impact on the human intervention that are considered refers to specific instances in which the ecosystem, we believe that the wildland (or not) in the preamble of this conditions of a particular prescribed fire definition we are promulgating conveys final rule. Many commenters supported have developed in an unplanned way similar intent and will have the same this approach while others preferred such that its management challenges are incorporating land use types and practical effect. Also related to the definition of essentially the same as if it were a specifically allowable types of wildfire. The federal, state and tribal structures (e.g., fences to limit the wildland, several states asked that we specifically address prescribed fires on wildland fire management community movement of grazing animals) into the uses the terminology ‘‘prescribed fire regulatory definition. We have cultivated cropland and other agricultural lands. As we proposed and declared wildfire’’ to describe the determined that because the presented infrequent and significant instances land use types and clarifications as we are finalizing in this rule, the fire- related provisions apply specifically to when meteorological and/or other regarding allowable structures and fires that occur predominantly on environmental conditions, resource human intervention are only examples, wildland. Air agencies contemplating availability, or other unforeseen and not an all-inclusive list of all lands preparing fire-related exceptional events circumstances lead the burn manager to that could be considered ‘‘wildland,’’ demonstrations for fires not on make such a declaration to protect the guidance is more appropriate for these wildland, should consult with their health and safety of fire management details than rule. We also clarify, at the reviewing EPA Regional office. The EPA staff and the public. For example, if the request of one commenter, that we will review submitted demonstrations prescribed fire has escaped secure would generally consider lands like on a case-by-case basis considering the containment lines and requires state and national parks and wildlife specific merits of each event. suppression along all or part of its refuges (provided they are primarily Comments and Responses. After boundary or if it no longer meets the wild and natural and provided hunting, consideration of the public comments, resource objectives (e.g., smoke impact, if allowed, is limited) to be wildland. we are finalizing a modified version of flame height). It was not our intention We are not including the modifications our proposed definition of wildfire: to allow categorical re-definition of suggested by several commenters that ‘‘Wildfire is any fire started by an some types of prescribed fire to be would change the phrase ‘‘development unplanned ignition caused by lightning; wildfires. Our intent was to clearly is essentially non-existent’’ to volcanoes; other acts of nature; identify those fires that could be ‘‘development is limited in scope.’’ unauthorized activity; or accidental, considered wildfires and those that First, the language ‘‘limited in scope’’ in human-caused actions, or a prescribed would be considered prescribed fires. In the phrase ‘‘development is limited in fire that has developed into a wildfire. doing this, we also identified the scope’’ is subjective and would create A wildfire that predominantly occurs on applicable demonstration requirements additional uncertainty and ambiguity, wildland is a natural event.’’ The final under the Exceptional Events Rule. That revised definition includes ‘‘a is, wildfires and prescribed fires on 66 72 FR 13575 (March 22, 2007). wildland have different requirements 67 prescribed fire that has developed into One example of this collaborative approach is for exceptional events demonstrations the evolving interagency Wildland Fire Air Quality a wildfire’’ instead of the proposed Response Program, which has developed resources language ‘‘a prescribed fire that has been based on the practicality of prevention/ to help address and predict smoke impacts from declared to be a wildfire.’’ control (i.e., the approach to addressing wildfires to reduce public exposure to wildfire Some commenters supported the the not reasonably controllable or smoke. Additional information is available in the preventable criterion) and on the natural docket for this action (see EPA–HQ–OAR–2013– original proposed definition, but others 0572, Wildland Fire Air Quality Response recommended deleting the phrase ‘‘a versus anthropogenic origin of the fire Program). prescribed fire that has been declared to (i.e., the human activity that is unlikely
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to recur or a natural event). When contrary in the record, the generally applicable guidelines to considering prevention/control for Administrator will determine every clarify both ‘‘unlikely to recur’’ and ‘‘at purposes of exceptional event wildfire occurring predominantly on a particular location.’’ In this action, we categorization, a prescribed fire wildland to have met the requirements discussed these guidelines for most effectively becomes like a wildfire . . . regarding the not reasonably events caused by human activity in when, for example, the prescribed fire controllable or preventable criterion.’’ Section IV.E.1 of this preamble, but we escapes secure containment due to also clarified that specific approaches b. Prescribed Fires unforeseen circumstances (e.g., a apply for prescribed fires on wildland, sudden shift in prevailing winds). In The proposal stated, and this final which we discuss here. these instances, the burn manager rule repeats, the EPA’s recognition that Our proposed rule indicated that would no longer control the path of the use of prescribed fire on wildland can when characterizing the ‘‘human fire. Thus, the fact that the initial fire influence the occurrence, severity, activity that is unlikely to recur at a was deliberately ignited should not behavior and effects of catastrophic particular location’’ criterion, a result in the entire burn (e.g., the wildfires and benefit the plant and demonstration for a prescribed fire on duration and extent of the burn) needing animal species that depend upon wildland could use one of two to follow the rule requirements for natural fires for propagation, habitat benchmarks to describe the expected prescribed fires on wildland. Given restoration and reproduction, as well as frequency of prescribed fires on these potential circumstances, we a myriad of ecosystem functions (e.g., wildland: 69 (1) The natural fire return proposed to rely on the burn manager’s carbon sequestration, maintenance of interval as articulated in the 2007 (or another individual familiar with the water supply systems and endangered preamble or (2) the prescribed fire circumstances of the fire) declaration species habitat maintenance). The EPA frequency needed to establish, restore that the prescribed fire has become a formally recognized in the 1998 Interim and/or maintain a sustainable and wildfire. Because many commenters Air Quality Policy on Wildland and resilient wildland ecosystem. The expressed concern with the Prescribed Fires 68 that federal, state, proposal also stated that multi-year land ‘‘declaration’’ language, we have local, tribal and private land owners/ or resource management plans prepared changed the phrase to ‘‘a prescribed fire land managers use prescribed fire on by the land management agency or any that has developed into a wildfire,’’ by wildland to achieve some of these private property owner generally which we mean that has developed in resource benefits, to correct the include documentation of these an unplanned way such that its undesirable conditions created by past established fire intervals. Considering management challenges are essentially wildfire suppression management these two concepts, we proposed rule the same as if it had been initiated by strategies and to reduce the risk of text that considered a demonstration’s an unplanned ignition.’’ We believe that catastrophic wildfires to the public. referencing of a multi-year land or 70 this revised language conveys our Summary of Proposal. The EPA resource management plan (and original intent. In showing that a proposed the following guidance, including either a copy or an internet prescribed fire ‘‘hasdeveloped into a clarifications and rule revisions to assist link to the plan) with a stated objective wildfire,’’ air agencies should include air agencies preparing exceptional to establish, restore and/or maintain a the following documentation when events demonstrations for prescribed sustainable and resilient wildland addressing the ‘‘human activity unlikely fire on wildland. ecosystem and/or to preserve to recur at a particular location or a (i) Definition of a prescribed fire. We endangered or threatened species that also identifies the subject area as a natural event’’ criterion in their proposed to adopt in rule language a candidate for prescribed fire to be demonstration: (1) News reports or modified version of the then-current dispositive evidence that a particular notifications to the public characterizing NWCG-recommended definition of a fire conducted in accordance with such the nature of the fire and (2) the prescribed fire: ‘‘[A]ny fire intentionally a plan satisfies the ‘‘unlikely to recur at demonstration submitter’s explanation ignited by management actions in a particular location’’ criterion. The of the origin and evolution of the fire. accordance with applicable laws, proposal noted that referencing a fire All commenters providing feedback policies and regulations to meet specific land or resource management management plan for tribal or private on the EPA’s proposal to grant a lands that has been reviewed and rebuttable presumption that every objectives.’’ In this definition, ‘‘management’’ refers to the owner or certified by the appropriate fire and/or wildfire on wildland satisfies the ‘‘not resource management professionals and manager of the land area to which reasonably controllable or preventable’’ agreed to and followed by the land prescribed fire is applied. The proposal criterion unless evidence in the record owner/manager can also satisfy the replaced the original NWCG language demonstrates otherwise agreed with the ‘‘unlikely to recur at a particular ‘‘specific objectives’’ with ‘‘specific land EPA’s proposed regulatory language. We location’’ criterion. or resource management objectives.’’ have therefore finalized the provision at (iv) Not reasonably controllable or (ii) Events caused by human activity. 40 CFR 50.14(b)(4) that the preventable. The proposed rule stated We proposed regulatory language stating ‘‘Administrator shall exclude data from that, consistent with current practice that prescribed fires are events caused use in determinations of exceedances and 2007 preamble and rule language, by human activity and, therefore, to be and violations where a State the EPA considers it appropriate for air considered an exceptional event, every demonstrates to the Administrator’s agencies to rely on an in-place and prescribed fire demonstration must satisfaction that emissions from implemented state-certified SMP or on a address the ‘‘human activity unlikely to wildfires caused a specific air pollution burn manager’s use of BSMP that concentration in excess of one or more recur at a particular location’’ criterion. national ambient air quality standard at (iii) Unlikely to recur at a particular 69 The EPA will assess benchmarks for the a particular air quality monitoring location. The proposed rule set forth expected frequency of prescribed fires not on location and otherwise satisfies the wildland on a case-by-case basis. 68 Interim Air Quality Policy on Wildland and 70 These plans could also include fire requirements of this section. Provided Prescribed Fires. U.S. EPA. April 23, 1998. management plans, prescribed fire on wildland the Administrator determines that there Available at http://www.epa.gov/ttn/oarpg/t1/ management plans, landscape management plans or is no compelling evidence to the memoranda/firefnl.pdf. equivalent public planning documents.
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minimize emissions and control for other prescribed fires. The six BSMP controllable or preventable criterion impacts, in lieu of a state-certified SMP, (i.e., evaluating smoke dispersion provided there is no compelling to satisfy the controllability prong of the conditions, monitoring effects on air evidence to the contrary in the record ‘‘not reasonably controllable or quality, recordkeeping/maintaining a when the EPA approves the associated preventable’’ criterion. We also burn or smoke journal, communicating, exceptional events demonstration. The proposed that, provided there is no considering emission reduction proposal provided additional detail compelling evidence to the contrary in techniques, and sharing the airshed) regarding the development of these the record, an air agency could rely came from guidance on BSMP for multi-year land or resource management upon, comply with and reference a prescribed fires provided by the USDA plans. multi-year land or resource management Forest Service and USDA NRCS.71 The The proposal also removed the phrase plan for a wildland area with a stated proposal noted that while the BSMP are ‘‘and must include consideration of objective to establish, restore and/or broadly stated, burn managers use site- development of a SMP’’ from the maintain a sustainable and resilient specific considerations to select the sentence of the existing text of 40 CFR wildland ecosystem and/or to preserve exact actions of each type and apply 50.14(b)(3) that in the 2007 Exceptional endangered or threatened species them to specific burn projects. The EPA Events Rule read, ‘‘If an exceptional through a program of prescribed fire to proposed to accept as evidence of the event occurs using the basic smoke satisfy the preventability prong of the use of BSMP the burn manager’s management practices approach, the ‘‘not reasonably controllable or statement that he or she employed State must undertake a review of its preventable’’ criterion. We provide applicable BSMP for a prescribed fire. approach to ensure public health is further context from our proposed The proposal noted that documentation being protected and must include action in the paragraphs that follow. of evidence could consist of a copy of consideration of development of a Because the 2007 Exceptional Events the routine post-burn report or a letter SMP.’’ Rule used the terms SMP and BSMP prepared by the burn manager. While Final Rule. We are finalizing in without defining them, our proposed the EPA asserted in the proposal that we regulatory language, as proposed and for rule provided clarity. With respect to a would work collaboratively with other the reasons discussed in our proposal SMP, the proposal noted that at a federal agencies to make post-burn and herein, the following definition of minimum, a state-certified SMP would reports available to the air agencies that prescribed fire: A ‘‘prescribed fire is any include provisions for (i) authorization need them, we also encouraged land fire intentionally ignited by to burn, (ii) minimizing air pollutant managers and other organizations management actions in accordance with emissions, (iii) smoke management employing prescribed fire to work with applicable laws, policies, and components of burn plans, (iv) public states and tribes to develop an efficient regulations to meet specific land or education and awareness, (v) process to coordinate fire planning resource management objectives.’’ surveillance and enforcement, and (vi) activities, issue public health advisories, We are also finalizing our proposal program evaluation. We also indicated if needed, and share relevant fire-related that a prescribed fire can satisfy the that ‘‘certification’’ requires that a documentation, including pre-and post- human activity unlikely to recur at a responsible state or delegated local burn reports. particular location criterion if certain agency certify in a letter to the The proposal provided similar detail requirements are met and provided Administrator of the EPA, or a Regional with respect to addressing the there is no compelling evidence to the Administrator, that it has adopted and ‘‘prevention’’ prong of the ‘‘not contrary in the record. Specifically, the is implementing a SMP. We solicited reasonably controllable or preventable’’ air agency must describe the actual burn comment on incorporating these SMP criterion stating that because prescribed frequency, but may rely on either the elements into rule text language. fires are intentionally ignited, clarifying natural fire return interval or the The proposal continued the prescribed fire frequency needed to discussion of SMP by noting that states preventability is particularly relevant. The proposal noted that because both establish, restore and/or maintain a with certified SMP typically have robust sustainable and resilient wildland communications between officials SMP and BSMP generally apply to the planning, execution and follow-up once ecosystem contained in a multi-year concerned with air quality impacts and land or resource management plan 72 officials and members of the public who the decision has been made to ignite a burn, they, therefore, do not specifically with a stated objective to establish, use prescribed fire. These groups restore and/or maintain a sustainable communicate during the development address prevention or deciding not to burn. The proposal stated that an and resilient wildland ecosystem and/or of the SMP, during the day-to-day burn to preserve endangered or threatened authorization process and in the affected agency should conclude a prescribed fire to be not reasonably species through a program of prescribed periodic review and potential revision fire. As we noted in the proposal, the of the SMP. For these reasons, the EPA preventable based on the benefits that would be foregone if the fire were not EPA understands that multi-year plans proposed to accept the testimony of the incorporate factors relevant to air agency submitting the exceptional conducted. We articulated ‘‘forgone benefits’’ as those objectives in a multi- identifying and selecting the areas and events demonstration that the SMP is times under which management will being implemented, provided that prior year fire management plan that establish, restore and/or maintain a to the EPA’s acting on a demonstration, 72 On a case-by-case basis, in the absence of a the record contains no clear evidence to sustainable and resilient wildland multi-year plan, the EPA would also consider a the contrary. ecosystem. The proposed regulatory text prescribed fire on wildland conducted on a fire The proposed rule provided similar intended to rely on the benefits in these return interval established according to scientific plans as satisfying the not reasonably literature to satisfy the not reasonably controllable detail for BSMP by identifying in the or preventable criterion provided the prescribed fire rule text six BSMP as being generally preventable prong of the not reasonably was also conducted with the objective to establish, appropriate, and generally endorsed and restore and/or maintain a sustainable and resilient followed by federal, state and local 71 USDA Forest Service and Natural Resources wildland ecosystem and conducted in compliance Conservation Service, Basic Smoke Management with either a state-certified SMP or BSMP. This agencies and private landowners, for Practices Tech Note, October 2011, http://www. case-by-case approach is similar to the approach exceptional events purposes for nrcs.usda.gov/Internet/FSE_DOCUMENTS/stel currently used under the 2007 Exceptional Events prescribed fires on wildland as well as prdb1046311.pdf. Rule.
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initiate a specific prescribed fire. We is implementing a SMP.74 Past the program. The authorization process also recognize that evaluating the certifications provided to the EPA could, but is not required to, include behavior and results of prior prescribed through this process are sufficient to burn permits or other forms of fires aids in determining the frequency meet the ‘‘certified’’ SMP language in instruction for conducting burns that and need for future prescribed fire in a this final action. An air agency with a consider air quality and the ability of given area. Thus, we acknowledge that current SMP that has not been certified the airshed to disperse emissions. a multi-year plan with a stated objective according to this process could pursue • Minimizing Air Pollutant to establish, restore and/or maintain a certification of its existing SMP. SMPs Emissions—Encourages wildland sustainable and resilient wildland that have been incorporated into a SIP owners/managers to consider and ecosystem and/or to preserve are ‘‘certified.’’ We are retaining Table 3, evaluate alternative treatments to fire, endangered or threatened species may which identifies generally appropriate include general targets for the frequency BSMP, in the regulatory text. To the but if fire is the selected approach to of prescribed fire use and that proposed version of the table, we have follow appropriate emission reduction management may deviate from the added a footnote to indicate that the techniques. general plan due to unexpected listing of BSMP is not intended to be all- • Smoke Management Components of differences between planned and actual inclusive. Burn managers can consider Burn Plans—If the smoke management fire behavior, landscape or ecosystem other appropriate BSMP as they become program requires burn plans, then the characteristics, fuel loading patterns and available due to technological burn plan should include the following weather patterns. As a result, when the advancement or programmatic components: Actions to minimize fire EPA reviews an exceptional events refinement. While not in regulatory text, emissions, approaches to evaluate demonstration for a prescribed fire we also incorporate into this final rule smoke dispersion, public notification conducted under a wildland preamble, as guidance, Table 4, which and exposure reduction procedures, and management plan, we intend to includes example content for a burn air quality monitoring. compare the actual time pattern of report. The preamble to this final rule • Public Education and Awareness— prescribed fires on the land with the identifies burn reports as one example Establishes the criteria for issuing health pattern described in the applicable of documentation that air agencies can multi-year plan in a general way, rather use in their exceptional events advisories when necessary and than treating the multi-year plan as demonstrations for prescribed fires to procedures for notifying potentially containing a specific schedule to which show the implementation of BSMP. affected populations. management must adhere. For example, After incorporating commenter feedback • Surveillance and Enforcement— if the wildland management plan into the descriptions of some of these Includes procedures to ensure identified an approximate 5-year burn components, we are retaining in the compliance with the terms of the SMP. interval, the EPA would not disapprove preamble, as guidance, the following • Program Evaluation—Provides for a demonstration if the burn occurred on components of a certified SMP: 75 • periodic review by interested a 4-year or a 6-year interval, provided, Authorization to Burn—Includes a stakeholders of the SMP effectiveness of course, that the demonstration met all process for authorizing or granting and program revision as necessary. A other Exceptional Events Rule criteria. approval to manage prescribed fires on review of effectiveness should consider Also, as we discussed in more detail in wildland within a region, state or on the role of prescribed fire in meeting the Indian lands and identifies a central the proposal and consistent with our goals in a multi-year or resource recognition of the ecosystem benefits of authority responsible for implementing management plan with a stated prescribed fire, ‘‘sustainable and objective to establish, restore and/or resilient wildland ecosystem’’ could revisions, the EPA has revised the delegation of maintain a sustainable and resilient include maintaining a regenerated forest authority for exceptional events decision making to wildland ecosystem and/or to preserve in a healthy condition able to withstand allow for redelegation from the EPA Regional Administrator to the Regional Air Division Director endangered or threatened species. and/or diminish the effects of or equivalent highest manager who exclusively Effectiveness reviews should also catastrophic wildfire. oversees air programs. If an EPA Regional office consider air quality impacts as well as We are finalizing our proposed elects to pursue redelegation, then a state could any received post-burn reports, which regulatory language that a prescribed ‘‘certify’’ its SMP by sending a letter to the delegated official in the EPA Regional office. may describe implemented contingency fire must be conducted under an 74 The EPA anticipates that any person within an plans due to smoke impacts or use of adopted and implemented certified SMP air agency responsible for submitting exceptional BSMP and recommendations for future or must have used appropriate BSMP to events demonstrations or SIP revisions could also satisfy the controllable prong of the not be responsible for certifying a Smoke Management improvements. SMP procedures for re- reasonably controllable or preventable Program. evaluation should address a frequency 75 The EPA is adapting the language associated criterion. As we indicated in the of review (e.g., every 3 to 5 years, or as with the six basic components of a certifiable SMP needed); participants in the review proposal, ‘‘certification’’ requires that a from the 1998 Interim Air Quality Policy on responsible state or delegated local Wildland and Prescribed Fires. Although states may process (e.g., original program agency certify in a letter to the have developed and implemented a certified SMP developers to include land owners/ that addresses prescribed fire not on wildland, this managers, air quality managers, the Administrator of the EPA, or a Regional regulatory action focuses on the elements of a 73 public, etc.); and program objectives Administrator, that it has adopted and certified SMP as applied to managing smoke from prescribed fires on wildland. In this context, the over the review period (e.g., acres 73 As discussed in more detail in Section IV.G.7 EPA expects burn managers to consider actions and burned, anticipated/desired future acres of this preamble, concurrent with these rule approaches where appropriate. burned, needed modifications).
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TABLE 3—SUMMARY OF BASIC SMOKE MANAGEMENT PRACTICES, BENEFIT ACHIEVED WITH THE BSMP, AND WHEN IT IS APPLIED a
b When the BSMP is applied— Basic smoke management practice Benefit achieved with the BSMP before/during/after the burn
Evaluate Smoke Dispersion Conditions ..... Minimize smoke impacts ...... Before, During, After. Monitor Effects on Air Quality ...... Be aware of where the smoke is going and degree it impacts air Before, During, After. quality. Record-Keeping/Maintain a Burn/Smoke Retain information about the weather, burn and smoke. If air qual- Before, During, After. Journal. ity problems occur, documentation helps analyze and address air regulatory issues. Communication—Public Notification ...... Notify neighbors and those potentially impacted by smoke, espe- Before, During. cially sensitive receptors. Consider Emission Reduction Techniques Reducing emissions through mechanisms such as reducing fuel Before, During, After. loading can reduce downwind impacts. Share the Airshed—Coordination of Area Coordinate multiple burns in the area to manage exposure of the Before, During, After. Burning. public to smoke. a The EPA believes that elements of these BSMP could also be practical and beneficial to apply to wildfires for areas likely to experience re- curring wildfires. b The listing of BSMP in this table is not intended to be all-inclusive. Not all BSMP are appropriate for all burns. Goals for applicability should retain flexibility to allow for onsite variation and site-specific conditions that can be variable on the day of the burn. Burn managers can consider other appropriate BSMP as they become available due to technological advancement or programmatic refinement.
TABLE 4—ELEMENTS THAT MAY BE INCLUDED IN BURN PLANS AND POST-BURN REPORTS FOR PRESCRIBED FIRES SUBMITTED AS EXCEPTIONAL EVENTS
Element Burn plan Post-Burn report
Fire Name a ...... Include ...... Include. Permit number (if appropriate) ...... Include ...... Include. Latitude/longitude and physical description ...... Include ...... Include. Date of burn, ignition time and completion time (duration of Include ...... Include. burn). AQI status on burn day, if available (both in the vicinity of Predicted ...... Actual. the fire and in the affected upwind area). Acres burned ...... Planned ...... Actual (blackened). Description of fuel loading ...... Estimated ...... Actual (tons consumed). Meteorological data (weather conditions, wind speed and di- Predicted conditions (including pre- Actual conditions (including actual dis- rection, dispersion). dicted dispersion). persion). Smoke Impacts ...... Anticipated smoke impacts ...... Observed or reported smoke impacts (include nature, duration, spatial ex- tent and copies of received com- plaints). BSMP actions to reduce impacts ...... Expected BSMP actions ...... Actual BSMP actions. Recommendations for future burns in similar areas ...... Include. Analytics (modeled/actual fire spread, satellite imagery and ...... Include. analysis, webcam/video, PM/ozone concentrations over the course of the fire). a The ‘‘Fire Name’’ should be unique and referenced, to the greatest extent possible, in all exceptional events-related documentation, including the event name in AQS. The fire name could simply consist of the county, state, and date in which the burn occurred (e.g., County X, State Y Prescribed Fire on Date Z) if no other name has been assigned.
Also as proposed, and for the are finalizing our reliance on a multi- encouragement of these collaborative previously summarized reasons, we are year land or resource management plan fire communications. From a holistic removing the phrase ‘‘and must include for a wildland area with a stated perspective, commenters noted that a consideration of development of a SMP’’ objective to establish, restore and/or shared understanding regarding the from the sentence that in 40 CFR maintain a sustainable and resilient goals of a specific prescribed fire helps 50.14(b)(3) of the 2007 Exceptional wildland ecosystem and/or to preserve both air quality and land managers meet Events Rule that read, ‘‘If an exceptional endangered or threatened species their respective air quality objectives event occurs using the basic smoke through a program of prescribed fire. and land and resource management management practices approach, the While our proposal encouraged all objectives. Some state and regional State must undertake a review of its agencies and managers/owners involved planning organization commenters also approach to ensure public health is in land, air quality and fire management responded that it is inappropriate to being protected and must include to communicate and collaborate allow federal land managers, who are consideration of development of a regarding fire use practices in general not directly accountable for managing SMP.’’ and plans for specific prescribed fires air quality, to independently make With respect to the not reasonably with use of BSMP, we did not propose decisions for which air agencies are preventable prong of the not reasonably to require this communication. responsible. As we have noted controllable or preventable criterion, Commenters provided both general and previously in this preamble, federal after considering public comments, we specific feedback related to the EPA’s land managers do play an important role
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in helping states and tribes improve the land managers and burn managers have retrospective review of the prescribed air quality in those areas that do not not discussed and documented a fire event and the employed BSMP to meet the NAAQS. Regardless of whether process that includes outreach and ensure the protection of air quality and the provisions in the General education regarding general public health and progress towards Conformity Rule 76 apply, commenters expectations for the selection and restoring and/or maintaining a specifically asked the EPA to ensure application of appropriate BSMP and sustainable and resilient wildland that burn managers using BSMP consult goals for advancing strategies and ecosystem. Either the air agency or the with the air agency or air agencies increasing adoption and communication burn manager could initiate such a within whose jurisdiction the burn is of the benefits of appropriate BSMP. retrospective review. This regulatory being conducted regarding the selection The initial implementation period is language previously indicated that the and use of BSMP to ensure that those defined as 2 years from the effective ‘‘State must undertake a review of its BSMP are appropriate and address local date of this action. This time will allow approach. . . .’’ The added regulatory air quality and public health issues. air agencies and land managers to text clarifies our intent in using the term Some land managers have offered the develop and incorporate the ‘‘approach.’’ We are also requiring that counter-perspective that pre-burn collaboration process into operational if the prescribed fire becomes the approval on a fire-by-fire basis could management. subject of an exceptional events consume resources from all parties and The EPA expects that the mechanism demonstration, the demonstration must have no practical effect regarding actual under which these discussions are include documentation of the post-burn measures taken before, during or after a conducted and documented could be review. The EPA may be unable to fire. These same land managers also formal, such as a Memorandum of concur on a demonstration that does not articulated that requiring extensive pre- Understanding or an Interagency include documentation of the post-burn burn discussions between burners and Agreement, or it could be a letter review. Together, the regulatory air agencies could have the unintended agreement. Similarly, in indicating that language at 40 CFR 50.14(b)(3)(ii) now result of burners not using BSMP. discussions occur ‘‘periodically,’’ we requires both proactive discussions The EPA must balance the concerns mean that discussions could occur focused on education and outreach raised by the states during the comment annually at the beginning of a burn regarding BSMP and a ‘‘lessons learned’’ period on the NPRM with the concerns season, prior to initiating burns on review of events that occur with the use identified by other federal agencies with identified tracts of land, or on some of BSMP. We note that this required which we have consulted in the other identified frequency. We do not collaborative proactive and development of this action. To effect expect discussions prior to each retrospective approach does not affect this balance, the EPA is incorporating prescribed fire on wildland. The EPA any land manager’s ability to conduct a preamble language and rule text that also expects that discussions will prescribed fire, only whether a requires that air agencies, federal land include outreach and education prescribed fire conducted after the managers and other agencies as regarding general expectations for the effective date of this action is eligible for appropriate, periodically discuss with selection and application of appropriate consideration as an exceptional event. the burn managers operating within BSMP and goals for advancing strategies The mandatory provisions for these their jurisdiction and document the and increasing adoption and required discussions do not apply process by which air agencies and land communication of the benefits of where a burner is operating under a appropriate BSMP and not the initiation managers will work together to protect developed and implemented certified or timing of the prescribed fire (except public health and manage air quality SMP. in those cases where a BSMP specifies Comments and Responses. The EPA impacts during the conduct of certain factors related to the timing). Not received many comments expressing prescribed fires on wildland. Consistent all BSMP are appropriate for all burns. agreement with the EPA’s recognition of with operational protocols within the Goals for applicability should remain the importance of prescribed fire on fire management community, these flexible to allow for onsite variation and wildland and welcoming continued discussions must include outreach and site-specific conditions that can be dialogue among state, tribal and local air education regarding general variable on the day of the burn. Where agencies, the EPA and other federal expectations for the selection and states have an existing, documented agencies to ensure that land managers application of appropriate BSMP and process or program under which air have adequate available tools to manage goals for advancing strategies and agencies, federal land managers, state ecosystem development and restoration increasing adoption and communication fire agencies and other entities engage and manage wildland vegetation, of the benefits of appropriate BSMP. As with burn managers regarding the including use of planned prescribed with other components of this final rule, protection of public health and air fires and letting some wildfires proceed we are not defining the mechanism by quality and general expectations for the naturally, and to ensure that use of these which air agencies and land managers selection, application and benefits of tools is protective of public health and will conduct and document these appropriate BSMP, they may rely upon does not result in unhealthy air. No discussions nor are we prescribing the and reference this process or program commenters disagreed with this full scope of these discussions. Rather, when addressing the not reasonably objective, but, as described in the we are finalizing regulatory text that, controllable or preventable criterion for following paragraphs, some commenters after an initial implementation period, an exceptional events demonstration for provided feedback regarding applying the EPA will not concur with a request a prescribed fire. the specific aspects of prescribed fire on to exclude data that have been Also related to air agency and land wildland to the exceptional events influenced by a prescribed fire on manager collaboration, we have clarified process. wildland if the air agency(ies), federal the regulatory language at 40 CFR Some commenters supported the 50.14(b)(3)(ii)(A) to require that when a proposed definition of prescribed fire, 76 The General Conformity Rule requires that NAAQS exceedance or violation occurs while others offered suggestions for federal agencies work with state, tribal and local governments in nonattainment and maintenance when a prescribed fire is employing an revision. Several commenters areas to ensure that federal actions conform to any appropriate BSMP approach that the air recommended that we include within applicable SIP, FIP or TIP. agency and the burn manager conduct a the regulatory definition the concept
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that prescribed fire on wildland must be As previously noted, after considering additional commenters asked that we conducted using either SMP or BSMP public comments, we are finalizing that clarify how an event spanning multiple principles. While we agree that either a to satisfy the human activity unlikely to days counts towards recurrence. As we SMP or BSMP are required for a recur at a particular location criterion, discuss in Section IV.E.1 of this prescribed fire to be eligible for the air agency may rely on either the preamble, the EPA recognizes that a consideration under the Exceptional natural fire return interval or the single event, natural or caused by Events Rule, as indicated in this prescribed fire frequency needed to human activity (to include prescribed preamble and in the regulatory text at 40 establish, restore and/or maintain a fire events), can span multiple days and CFR 50.14(b)(3)(ii)(A), we have not sustainable and resilient wildland result in an air agency flagging multiple added either SMP or BSMP to the ecosystem contained in a multi-year monitor-day values in AQS (i.e., regulatory definition of a prescribed fire land or resource management plan with multiple exceedances of a given NAAQS because to do so would have the effect a stated objective to establish, restore at a single monitor in a single day or of excluding from the definition of and/or maintain a sustainable and multiple NAAQS exceedances at prescribed fire those deliberately ignited resilient wildland ecosystem and/or to multiple monitors on multiple days). fires that do not use BSMP or SMP. That preserve endangered or threatened The EPA considers a single discrete is, we would not have terminology to species through a program of prescribed event to be one occurrence. define intentionally ignited fires not fire. While a few commenters agreed Commenters also asked for using BSMP or SMP, which the land with the language as proposed, several clarification regarding the development management community refers to as commenters asked for clarification of land and resource management plans. prescribed fires. We believe that regarding recurrence and the Specifically, commenters note that promulgating a regulatory definition development of land management plans. while the description and content of the that is substantively different than the Specifically, commenters asked how the plans identified in the preamble to our common usage would create confusion. recurrence frequency identified in land proposed rule may be appropriate for Moreover, the definition of prescribed management plans as being needed to federal agencies, the description and fire that we are promulgating combined achieve land management goals or content of land and resource with the specific exceptional events defined by the natural fire return management plans was not appropriate provisions for prescribed fire on interval compares to the recurrence for private landowners who burn at the wildland (e.g., the requirement that the frequency generally established for the landscape level. Commenters asked that fire must have been conducted under a human activity unlikely to recur at a we clarify that prescribed fires SMP or have BSMP applied) will particular location criterion. In undertaken by private landowners or on achieve the same goal as the suggested discussing the concept of recurrence in lands managed by multiple parties that revision to the definition of prescribed Section IV.E.1 of this preamble, we note are consistent with their management fire. that the general benchmark for plans be considered under the Another commenter suggested that recurrence (i.e., three events in 3 years) exceptional events process. We disagree the definition of prescribed fire also does not apply to prescribed fires. with the commenters on this point. The include the caveat that that ‘‘applicable Rather than using this general existence of identified objectives in a laws, policies, and regulations’’ (1) benchmark for prescribed fire on state or private management plan may actually exist (2) are enforceable by or wildland, we are promulgating in 40 not be sufficient under the exceptional through delegated authority from the CFR 50.14(b)(3)(iii), that recurrence for events process. Rather, the stated state air quality management entity, and prescribed fires is defined by either the objectives must include those identified (3) are intended to adequately control natural fire return interval or the in this rule. The EPA is promulgating emissions and impacts at all downwind prescribed fire frequency needed to regulatory provisions that describe the locations. We have not incorporated the establish, restore and/or maintain a process and requirements by which commenter’s suggested language. Under sustainable and resilient wildland emissions from prescribed fires on the CAA, states, exclusive of tribal ecosystem contained in a multi-year wildland causing an exceedance or lands, are primarily responsible for the land or resource management plan with violation of a NAAQS can be considered administration of air quality a stated objective to establish, restore for exclusion under the Exceptional management programs within their and/or maintain a sustainable and Events Rule. In finalizing these rule borders. As the responsible entity, states resilient wildland ecosystem and/or to revisions, our intent is to clearly promulgate laws and regulations, where preserve endangered or threatened articulate the components needed to needed, and ensure they are followed species through a program of prescribed satisfy the statutory requirements under and are enforceable (states also develop fire. Thus, the recurrence frequency for CAA section 319(b) and the Exceptional policies, but policies are generally not prescribed fire is specific to the Events Rule. It is not our intent to enforceable). We note that in some ecosystem and resource needs of the exclude specific event types or states, legislation gives the leadership of affected area. Several additional scenarios from consideration. Rather, fire management to a forestry or public commenters requested that we codify the EPA will review each event on a safety agency rather than to an air language allowing either the natural fire case-by-case basis considering the agency. As pointed out by one cycle or the fire frequency needed to merits of each specific case. We commenter, the EPA cannot mandate meet ecological objectives to be defined recognize that addressing the prescribed that states grant air agencies the by scientific literature. We are not fire-related components may be more authority or purview to regulate or codifying the concept that recurrence difficult in some states than others (or enforce public health and safety. We can be defined by scientific literature, more difficult for some land areas can, however, require coordination as a but we are including this clarification in within a state than other land areas condition for the EPA’s approval for the the final rule preamble.77 Two within the same state) because of the exclusion of event-influenced ambient 77 As a general matter, this preamble provides address a given issue. The preamble guidance only data, which is what we have done with non-binding guidance and recommendations for precludes other approaches when the rule language the regulatory language at 40 CFR satisfying specific rule criteria. This does not mean identifies a specific condition as being necessary to 50.14(b)(3)(ii)(A). that these recommendations are the only way to satisfy a given requirement.
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state legislative authority for fire Wildland and Prescribed Fires, we exclusion as an exceptional event. We management or because of the nature recommended that all state-certified do not believe Congress intended this and management/ownership of lands SMP include the six identified ongoing consideration to be a considered to be wildland. We further elements. However, because the requirement under CAA section 319(b). recognize that successfully elements were only recommended We maintain that when air agencies implementing these rule revisions will versus being required, not all states observe NAAQS exceedances or require the coordination, cooperation adopted all six elements. Requiring the violations attributed to a prescribed fire, and compromise of all involved parties, six SMP elements in the rule text could air agencies should consider a wide including federal, state, local, tribal, and result in some states needing to revise range of alternatives including, but not private land owners/land managers; their SMP. Where a state has limited to, the development of a SMP or state, tribal and local air quality incorporated the SMP into a SIP, the more frequent or intensive use of BSMP agencies; and the EPA. effects of including the SMP elements in to minimize smoke impacts. In addition, Commenters provided a similar level the final rule text could include revising we believe that a SMP is most of detailed feedback regarding the not the SIP if the state intends to rely on the appropriate when multiple parties wish reasonably controllable or preventable SMP path to address the controllable to employ prescribed fire at about the criterion. Most commenters agreed with prong of the not reasonably controllable same time in the same airshed, which is the EPA’s now final provision that, to be or preventable criterion. As we note in a more narrow situation than specified considered under the provisions of the this preamble, based on commenter in the sentence we proposed to remove. Exceptional Events Rule, prescribed feedback, we have slightly modified the For these reasons, as supported by fires must be conducted under an descriptions of some of these commenter feedback, we are removing adopted and implemented certified SMP components. For example, several the language from the rule text. or using appropriate BSMP. One commenters noted that the Four states and one national commenter asked that we clarify in rule authorization to burn component organization agreed with our proposal to text that if a certified SMP is in place appears to attempt to require burn include BSMP in rule text. One national for an area, then all prescribed fires permits. We have clarified that while forestry association indicated its conducted in the area must first comply this component must include a process preference to include BSMP in the with the provisions in a SMP. In for authorizing or granting approval to preamble as guidance. As noted, we are response to the commenter’s suggestion, manage prescribed fires on wildland, including the table identifying BSMP in we note in this preamble that if a state this authorization process may or may regulatory text. While not in regulatory has adopted and implemented a not include burn permits.78 Also in text, we are also incorporating into this certified SMP, then a prescribed fire on response to commenter feedback, we final rule, as guidance in the preamble, lands included within the scope of the have clarified the program evaluation Table 4, which includes example SMP should be conducted under the component including ‘‘periodic review’’ content in a burn report. Although one terms of the SMP. We note, however, by interested stakeholders of the SMP commenter asked that this table be that some SMP may allow individual effectiveness and program revision as included in regulatory text, we are not burners to voluntarily adhere to the necessary. doing this because the table provides terms of the SMP. If this is the case, or Several commenters expressed example content of a burn report, which in situations in which a state has support for our proposal to remove the is only a single example of the type of developed, but not implemented, a phrase ‘‘and must include consideration documentation that air agencies can use SMP, then burn managers may use of development of a SMP’’ from the in their exceptional events BSMP to address the provisions of the sentence that in 40 CFR 50.14(b)(3) of demonstrations for prescribed fires to Exceptional Events Rule. States are the 2007 Exceptional Events Rule that show the implementation of BSMP. It is responsible for implementing and read, ‘‘If an exceptional event occurs not our intent to convey as required ensuring conformance with the terms of using the basic smoke management documentation either burn reports or their SMP. practices approach, the State must the identified content. Our proposal solicited comment on undertake a review of its approach to Several commenters supported, and whether to include SMP elements in the ensure public health is being protected no commenters opposed, the final rule revisions as rule text. We and must include consideration of presumption that a prescribed fire received comments supporting retaining development of a SMP.’’ As we noted in should be considered not reasonably the SMP elements in the preamble as the proposal, while the EPA supports preventable based on the benefits that guidance, and we received other states considering the development of a would be foregone if the burn did not comments supporting including the SMP when an event occurs while using take place. As we have noted, we have SMP elements in regulatory language. BSMP, we believe states have had many incorporated this concept into the final As previously noted in this preamble, opportunities to develop SMP since rule preamble and finalized associated we are retaining the SMP elements in 2007. The language in the 2007 rule regulatory text, which allows states to the preamble as guidance. When the effectively requires an ongoing rely on a multi-year land or resource SMP elements were developed for the consideration to develop a SMP every management plan for a wildland area 1998 Interim Air Quality Policy on time a prescribed fire causes a NAAQS with a stated objective to establish, Wildland and Prescribed Fires, the exceedance or violation that merits restore and/or maintain a sustainable language reflected actions consistent and resilient wildland ecosystem and/or with addressing three types of wildland 78 By ‘‘burn permit,’’ we mean a document or to preserve endangered or threatened fire (i.e., wildfire, prescribed fire and communication saying that a particular party may species through a program of prescribed wildland fire use fire). Fire terminology conduct a prescribed fire in a particular area on a particular day or range of days. Acceptable fire to satisfy the preventability prong of now recognizes two types of wildland alternative approaches to burn permits include the not reasonably controllable or fire: Wildfire and prescribed fire. We communicating more broadly where and when preventable criterion. chose not to include provisions in landowners may conduct prescribed fires. However, regulatory text that do not reflect we do not consider a program that authorizes 3. Stratospheric Ozone Intrusions prescribed fire across broad areas throughout an current terminology. Additionally, in entire season with no regard for meteorological or The section of the proposal the 1998 Interim Air Quality Policy on pollution conditions on specific days to be a SMP. addressing exceedances due to
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stratospheric ozone intrusions did not and as specifically suggested by one the western U.S. provided this value is propose any new guidance or specific commenter, we are extending this not contradicted by evidence in the regulatory language. Rather, it provided categorical presumption to satisfying the record when we reviewed a a general (meteorological) description of not reasonably controllable or demonstration. The proposal noted that stratospheric ozone intrusions, preventable criterion to stratospheric if we received specific information indicated that stratospheric ozone ozone intrusion events by promulgating based on relevant studies that suggest a intrusions are purely natural events, and regulatory language at 40 CFR different high wind threshold for an provided general guidance on applying 50.14(b)(6). identified area, the EPA would notify the Exceptional Events Rule criteria the affected air agency so that the 4. High Wind Dust Events when preparing demonstrations for agency may consider basing its stratospheric ozone intrusion events. a. Summary of Proposal demonstration on that threshold value. Because we intend to develop a The EPA proposed as guidance in the The proposal also indicated that the supplementary guidance document, preamble and/or as changes to EPA would consider such information Draft Guidance on the Preparation of regulatory text concepts and language as part of the weight of evidence Exceptional Events Demonstrations for that first appeared in the Interim High analysis for a submitted demonstration. Stratospheric Ozone Intrusions, which Winds Guidance document. These As we had previously articulated in the will apply the final rule provisions to changes included adding regulatory Interim High Winds Guidance, the the development of demonstrations for definitions for high wind dust events proposal stated that air agencies could, stratospheric ozone intrusion events and and a high wind threshold, determining as an alternative to the 25 mph high will include example analyses, the scenarios under which a high wind wind threshold, identify and use an area-specific high wind threshold that is conclusion statements and technical dust event could be considered more representative of local/regional tools that air agencies can use in their ‘‘natural’’ for purposes of the conditions. demonstrations, we are not repeating in Exceptional Events Rule, identifying this final action the language that The proposal explained that we that remote, large-scale, high-energy would use the high wind threshold appeared as guidance in the proposal. and/or sudden high wind dust events, We intend to post the draft guidance concept when assessing the not such as ‘‘haboobs,’’ would generally reasonably controllable or preventable and instructions for providing public satisfy the not reasonably controllable or comment on the exceptional events Web criterion for all high wind dust preventable criterion with streamlined exceptional events demonstrations site at http://www2.epa.gov/air-quality- documentation, and incorporating best analysis/treatment-data-influenced- except for those events in which the management practices (i.e., soil source of the emissions is entirely exceptional-events shortly after conservation management practices) as finalizing these rule revisions. natural (i.e., windblown dust from reasonable controls. We solicited natural undisturbed lands) or where a After consideration of the public comment on all of these concepts and large-scale and high-energy high wind comments, as discussed more fully in discuss each in more detail in the dust event generates emissions that the paragraph that follows, we are following paragraphs. cause an exceedance or violation. In the finalizing a rule provision related to Definition of an Event. Consistent case of a large-scale and high-energy satisfying the not reasonably with the EPA’s proposed revision of the high wind dust event, no assessment of controllable or preventable criteria for regulatory definition of an exceptional reasonable controls is needed to satisfy stratospheric ozone intrusions. While event to include both the event and its the controllability prong of the ‘‘not the not reasonably controllable or associated resulting emissions, the EPA reasonably controllable or preventable’’ preventable criterion applies to natural proposed to define a high wind dust criterion. events, the EPA has stated that air event as an event that includes the high- Large-Scale and High-Energy High agencies generally have no obligation to speed wind and the dust that the wind Wind Dust Events. The EPA proposed specifically address reasonable controls entrains and transports to a monitoring rule language to apply a general if the event was natural. We applied this site. We also proposed, consistent with approach when considering concept when proposing (and, in this the nullified language in the 2007 reasonableness of controls for remote, action, finalizing) a categorical Exceptional Events Rule preamble, the large-scale, high-energy and/or sudden presumption of not reasonably PM10 Natural Events Policy and the high wind dust events, such as controllable for wildfires that would Interim High Winds Guidance, to define ‘‘haboobs’’ in the southwest where involve referencing the appropriate high wind dust events in the rule text sustained wind speeds can exceed 40 regulatory citation in the demonstration. as ‘‘natural events’’ in cases where mph and generate walls of dust several The proposal preamble repeatedly windblown dust is entirely from natural miles wide and more than a mile high. acknowledges that, similar to wildfires, sources or where all significant The proposed rule text provided that if stratospheric ozone events are purely anthropogenic sources of windblown an event met the criteria for a large-scale natural events. The proposal also stated dust have been reasonably controlled. and high-energy event, then it would be in the not reasonably controllable or High Wind Threshold. To facilitate considered not reasonably preventable preventable section that ‘‘In these cases clearer expectations regarding the level or controllable. Therefore, a [volcanic releases of SO2 and of evidence needed to demonstrate not demonstration limited to such event(s) stratospheric ozone intrusions], the air reasonably controllable or preventable, will not need to substantively address agency should affirmatively state that the EPA proposed to codify in rule this criterion. the not reasonably controllable or language the definition of ‘‘high wind Best Management Practices. The EPA preventable criterion is satisfied by the threshold’’ as the minimum threshold solicited comment on whether, as part fact that the natural event was of a wind speed capable of causing of the assessment of local sources and character that could not have been particulate matter emissions from reasonable controls, USDA/NRCS- prevented or controlled and that there natural undisturbed lands in the area approved BMPs constitute sufficient were no contributions of event-related affected by a high wind dust event. The reasonable controls in any or in all high emissions from anthropogenic sources.’’ EPA proposed to accept a threshold of wind event-affected areas and whether As a natural outgrowth of our proposal, a sustained wind of 25 mph for areas in these measures should therefore be
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specifically and categorically identified anthropogenic sources of windblown We also repeat language from the in preamble or rule language as dust have been reasonably controlled.80 proposal that any area-specific high constituting reasonable controls. The While we discuss this concept (and wind threshold should be representative preamble repeated the EPA’s previous related comments and responses) in of conditions (i.e., sustained wind guidance that USDA/NRCS-approved more detail in Section IV.D of this speeds 82) that are capable of BMPs designed to effectively reduce preamble, we note here that this long- overwhelming reasonable controls fugitive dust emissions and prevent soil standing policy was first established in (whether RACM, BACM or other) on loss in agricultural applications could the PM10 Natural Events Policy, which anthropogenic sources and/or causing be included in the collection of controls provided that: emissions from natural undisturbed determined to constitute reasonable areas. The threshold was not intended Ambient PM10 concentrations due to dust controls for wind-blown dust events in raised by unusually high winds will be to represent the minimum wind speed areas in which they have been treated as due to uncontrollable natural at which any level of emissions could implemented.79 Although the EPA has events under the following conditions: (1) occur (e.g., aerodynamic entrainment), addressed the sufficiency of BMPs in The dust originated from nonanthropogenic but rather the wind speed at which decisions on individual exceptional sources, or (2) the dust originated from significant emissions begin to occur due events demonstrations when the BMPs anthropogenic sources controlled with best to reasonable controls on disturbed soil 81 were part of a SIP-approved BACM available control measures (BACM). or the natural wind resistance of determination, we have not previously High Wind Threshold. We are also undisturbed areas becoming addressed whether or not BMPs promulgating, as proposed, that the overwhelmed. We further note that we individually or in some combination definition of a high wind dust threshold included guidance on both threshold with each other constitute sufficient is the minimum threshold wind speed development and determining wind reasonable controls nationally or in any capable of causing particulate matter speeds in the Interim High Winds particular types of areas. emissions from natural undisturbed Guidance.83 While we believe this lands in the area affected by a high wind b. Final Rule guidance is still appropriate with dust event. No commenters opposed respect to determining wind speed After consideration of the public this definition. In concert with this characteristics and developing a wind comments received, and for the reasons definition, we are also finalizing a speed threshold, we intend to revise the discussed in our proposed rule section modified version of our proposed guidance to incorporate the provisions and response to such comments, we are regulatory text that we will accept a of this final action. We note that areas finalizing regulatory language defining threshold of a sustained wind of 25 mph with Natural Events Action Plans that high wind dust events and high wind for areas in the western U.S. provided include a high wind threshold that threshold; determining the scenarios this value is not contradicted by meets the criteria identified in the under which a high wind dust event evidence in the record when we review Interim High Winds Guidance may be could be considered ‘‘natural’’ for a demonstration. Several commenters able to use the previously developed purposes of the Exceptional Events supported this definition either as threshold as an area-specific high wind Rule; identifying that large-scale and proposed or with the clarification that threshold. The proposal also accepted high-energy high wind dust events, such air agencies could develop as an information on different high wind as ‘‘haboobs,’’ would generally satisfy alternative to the 25 mph high wind thresholds for identified areas (see 80 the not reasonably controllable or threshold, their own area-specific high FR 72878). After evaluating comments preventable criterion with streamlined wind threshold that is more advocating that the EPA consider area- documentation; and providing guidance representative of local/regional specific high wind thresholds, the EPA related to incorporating best conditions. Although we included this is codifying this provision in the final management practices (i.e., conservation language in the proposal preamble, we rule. The EPA recognizes, however, that management practices) as reasonable did not include this language in the there are likely to be limited situations controls. proposed regulatory text. We are in those areas in the western U.S.84 Definition of an Event. We are including this language in the final where this threshold applies in which promulgating, as proposed, that a high regulatory text as a result of commenter exceptional events occur at wind speeds wind dust event is an event that feedback. includes the high-speed wind and the 82 Section 6.3.2.2 in the Interim Guidance on the dust that the wind entrains and 80 As identified in Section IV.D of this preamble, Preparation of Demonstrations in Support of transports to a monitoring site. No the EPA will generally consider human activity to Requests to Exclude Ambient Air Quality Data commenters opposed this definition. have played little or no direct role in causing Affected by High Winds Under the Exceptional Also as proposed, we are emissions of the dust generated by high wind for Events Rule. U.S. EPA. May 2013. Available at purposes of the regulatory definition of ‘‘natural http://www2.epa.gov/sites/production/files/2015- promulgating regulatory text that we event’’ if contributing anthropogenic sources of the 05/documents/exceptevents_highwinds_guide_ consider high wind dust events as dust are reasonably controlled, regardless of the 130510.pdf for details on the calculation of ‘‘natural events’’ in cases where amount of dust coming from these reasonably sustained wind speed. Generally, the EPA will windblown dust is solely from natural controlled anthropogenic sources, and thus the accept that high winds could be the cause of a high event could be considered a natural event. In such 24-hour average PM10 or PM2.5 concentration if sources or where all significant cases, the EPA believes that it would generally be there was at least one full hour in which the hourly a reasonable interpretation to find that the average wind speed was above the area-specific 79 Interim Guidance on the Preparation of anthropogenic source had ‘‘little’’ direct causal role. high wind threshold. Demonstrations in Support of Requests to Exclude If anthropogenic sources of windblown dust that are 83 See Appendices A2 and A3 in the Interim Ambient Air Quality Data Affected by High Winds reasonably controllable but that did not have those Guidance on the Preparation of Demonstrations in Under the Exceptional Events Rule. U.S. EPA. May reasonable controls applied at the time of the high Support of Requests to Exclude Ambient Air 2013. Available at http://www2.epa.gov/sites/ wind event have contributed significantly to a Quality Data Affected by High Winds Under the production/files/2015-05/documents/exceptevents_ measured concentration, the event would not be Exceptional Events Rule. U.S. EPA. May 2013. highwinds_guide_130510.pdf and Interim Guidance considered a natural event. Available at http://www2.epa.gov/sites/production/ to Implement Requirements for the Treatment of Air 81 Areas Affected by PM–10 Natural Events (the files/2015-05/documents/exceptevents_highwinds_ _ Quality Monitoring Data Influenced by Exceptional PM10 Natural Events Policy), memorandum from guide 130510.pdf for additional information on the Events. U.S. EPA. May 2013. Available at http:// Mary D. Nichols, Assistant Administrator for Air development of a high wind threshold. www2.epa.gov/sites/production/files/2015-05/ and Radiation, to the EPA Regional offices, May 30, 84 See rule language that we are promulgating at documents/exceptevents_guidememo_130510.pdf. 1996. 40 CFR 50.14(b)(5)(iii).
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less than 25 mph.85 Air agencies should anthropogenic emissions sources are southwest, the Administrator will consult with their EPA Regional office reasonably controlled, it is more likely generally consider a demonstration when developing alternate high wind that human activity plays little or no documenting the nature and extent of thresholds for a particular area. direct role in causing emissions. the event to be sufficient with respect to The EPA will continue to consider an Conversely, if sustained wind speeds the not reasonably controllable criterion area’s high wind threshold when are below the high wind threshold it is of paragraph (c)(3)(iv)(D) of this reviewing demonstrations for events in more likely that human activity does section.’’ We have changed this a nonattainment or maintenance area have a direct role in causing emissions terminology to ‘‘a large-scale and high- where the EPA has approved a SIP, TIP because significant emissions under low energy high wind dust event.’’ We have or FIP within 5 years of the date of the wind conditions only occur if the area removed the phrase ‘‘such as haboobs in event. For a demonstration in such a has been disturbed by human activity the southwest’’ as a result of commenter case, the not reasonably controllable and those sources have not been feedback identifying that ‘‘haboobs’’ criterion hinges only on implementation reasonably controlled. occur in places other than the of the control measures in the SIP, TIP As noted in the proposed rule ‘‘southwest.’’ We agree with the or FIP, not on the content of those preamble and in the Interim High Winds commenter. We removed the descriptive measures. For events with sustained Guidance, as part of an exceptional terms ‘‘remote’’ and ‘‘sudden’’ because wind speeds above the high wind events demonstration for high wind we found that these words do not threshold that occur simultaneously dust events, the EPA expects air effectively change the characteristics of with high monitored PM concentrations, agencies to provide relevant wind data the type of event that we intend to it is very plausible that SIP, TIP or FIP (e.g., wind speed and direction). Wind include as ‘‘a large-scale and high- speed data consist of analyses and controls were being implemented and energy’’ high wind dust event. Thus, statistics showing how the observed the high PM concentrations resulted provided the event meets the identified sustained wind speed compares to the from emissions generated by sources in criteria for a ‘‘large-scale and high- established high wind threshold and the area despite implementation of energy’’ high wind dust event, it could demonstrates a relationship between the those controls. Conversely, for events qualify for case-specific treatment with with sustained wind speeds below the sustained wind speeds and measured PM concentrations at a particular respect to the not reasonably high wind threshold, it becomes more controllable or preventable criterion. plausible that there may be monitoring location. The EPA has noncompliance with control measures recommended that air agencies show Some areas of the country may claim or that anthropogenic sources unrelated these analyses as part of the clear causal that, because of local topography and to the event (e.g., dust from traffic for a relationship criterion discussed in meteorology, each PM exceedance that special event) are contributing to the Section IV.E.3 of this preamble. The occurs in their jurisdiction would exceedance. Therefore, the comparison EPA has encouraged air agencies to qualify as a ‘‘large-scale and high- of sustained wind speeds during an discuss wind direction in the narrative energy’’ high wind dust event. While we event to the high wind threshold will and to present wind direction data acknowledge that large-scale and high- help the EPA Regional offices determine graphically in maps/plots in the clear energy high wind dust events in a what evidence must be included in a causal relationship section of the high particular area may be associated with demonstration. Specifically, it will wind dust events demonstration. meteorological conditions unique to that inform the evidence required for the not The EPA will review any area, we also believe that to qualify for demonstration for a high wind dust reasonably controllable or preventable the specific exclusion at 40 CFR event not meeting the criteria for a criteria, the possibility of 50.14(b)(5)(vi), a large-scale and high- ‘‘large-scale and high-energy’’ described noncompliance, or emissions from non- energy high wind dust event must: Be in the next paragraph on a case-by-case 86 event sources. associated with a dust storm, have Similarly, the high wind threshold basis. In doing so, the EPA will consider sustained wind speeds greater than or also aids in determining whether a high what controls are reasonable in light of equal to 40 mph, have reduced visibility wind dust event that includes emissions an area’s attainment status and equal to or less than 0.5 miles,87 be the associated CAA control requirements, from anthropogenic sources can be focus of a ‘‘Dust Storm Warning’’ issued the frequency, and range of typical high considered a natural event. We have by the NWS (or a similar scientifically- wind dust events known (at the time of clarified that natural events can recur, based government entity) and include the particular event that is the subject of sometimes frequently, and that we NWS (or a similar scientifically-based the demonstration) to occur in the area. government entity) observations of dust consider reasonably controlled Large-Scale and High-Energy High anthropogenic emissions sources to play storms and blowing dust. In addition, Wind Dust Events. Many commenters the event must be associated with little or no direct role in causing supported the EPA’s proposed rule emissions. For high wind dust events, if measured exceedances occurring at language to apply a case-specific multiple monitoring sites over a large sustained wind speeds are above the approach when considering high wind threshold and the geographic area unless the area has only reasonableness of controls for remote, a single PM monitor or if the area has large-scale, high-energy and/or sudden 85 monitors operating on a sampling The default threshold of 25 mph was based on high wind dust events, such as extensive windblown dust emissions research frequency that does not coincide with performed by the Department of Civil and ‘‘haboobs,’’ where sustained wind the timing of the event. Environmental Engineering at the University of speeds can exceed 40 mph and generate Nevada, Las Vegas under contract to the Clark walls of dust several miles wide and County Department of Air Quality and 86 The NWS defines a dust storm as a severe Environmental Management. See Appendix A1 in more than a mile high. As a result, we weather condition characterized by strong winds the Interim Guidance on the Preparation of are finalizing this provision with several and dust-filled air over an extensive area. See Demonstrations in Support of Requests to Exclude clarifying changes to the proposed definition at http://w1.weather.gov/glossary/. Ambient Air Quality Data Affected by High Winds language at 40 CFR 50.14(b)(5)(vi), 87 Many NWS distributed alerts and advisories Under the Exceptional Events Rule. U.S. EPA. May which read, ‘‘For remote, large-scale, include visibility estimates. In addition, many 2013, and Refined PM10 Aeolian Emission Factors airports provide estimates of surface visibility. Air for Native Desert and Disturbed Vacant Land Areas. high-energy and/or sudden high wind agencies may also be able to use nephelometers to Final Report, June 30, 2006. dust events, such as ‘‘haboobs’’ in the determine visibility.
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Best Management Practices. After conditions. As already indicated, we we are not addressing this comment consideration of the public comments, have included this clarification in the here, we note that we discuss the as discussed more fully in this regulatory text. Several of the relationship between BACM or fugitive paragraph, we are finalizing here as commenters suggesting this revision dust control plans and reasonable guidance that, on a source or area- also asked that the regulatory language controls in our comments and responses specific basis, we would accept as include a provision that exceptional section of the not reasonably ‘‘reasonable controls’’ for purposes of events can still occur at wind speeds controllable or preventable portion of satisfying the not reasonably less than 25 mph. We have not included this final action (see Section IV.E.2.c of controllable or preventable criterion for this change as we believe that allowing this preamble). a particular potentially contributing areas to establish their own threshold source, those USDA/NRCS-approved will largely address this potential issue. G. Other Aspects of Identifying BMPs designed to effectively reduce Additionally, as stated in the proposal Exceptional Events-Influenced Data and fugitive dust air emissions and prevent and in this final action, the EPA will Demonstration Submittal and Review soil loss in agricultural applications in review other events on a case-by-case This portion of the proposed rule cases where these measures have been basis considering the merits of each discussed the eight topics identified in incorporated into an EPA-approved SIP, specific case. Still more commenters the following sections, as well as a ninth FIP or TIP or incorporated into state recommended keeping the high wind topic addressing who may submit a laws, regulations or local ordinances threshold as guidance rather than rule demonstration for data exclusion. and where those measures consist of as it is ‘‘overly restrictive.’’ The EPA Because we identify, discuss and controls specific to the pollutant and believes these revisions provide respond to questions regarding those potentially contributing source. sufficient additional flexibility to entities that are allowed to submit a As we discuss in Section IV.E.2.b of address this concern. demonstration in Section IV.A of this this preamble, when addressing the not Another commenter asked that we preamble and because the proposal reasonably controllable or preventable include in this final action language contained no additional items needing criterion within an exceptional events from our Interim High Winds Guidance, clarification, we omit that topic in this demonstration, air agencies should: (1) which stated ‘‘high winds could be the part of the final action. Identify the natural and anthropogenic cause of a high 24-hour average PM10 or sources of emissions causing and PM2.5 concentration if there was at least 1. Aggregation of Events contributing to the monitored one full hour in which the hourly a. Summary of Proposal exceedance or violation, including the average wind speed was above the area- contribution from local sources, (2) specific high wind threshold.’’ We still The EPA proposed and solicited identify the relevant, enforceable believe this is an accurate statement, comment on guidance in the preamble control measures in place for these and we are noting this point in this final and rule text allowing 24-hour sources and the implementation status action. concentrations of any NAAQS pollutant of these controls, and (3) provide As we noted previously, many to be compared to a NAAQS level evidence of effective implementation commenters supported the EPA’s defined for a longer period as part of a and enforcement of reasonable controls, proposed rule language to apply a case- weight of evidence showing for the clear if applicable. For example, applying this specific approach when considering causal relationship with respect to the approach to farm- and operation- reasonableness of controls for large- NAAQS with the longer period and the specific BMPs for a high wind dust scale and high-energy high wind dust NAAQS with the shorter period. This event that occurs during harvest time, events, such as ‘‘haboobs.’’ Another proposed approach allowed for an air agency would identify the commenter noted that haboobs should examining one day at a time. For potentially contributing agricultural not have special treatment under the example, if an event were demonstrated source (e.g., harvesting operations of rule revisions. This same commenter to have caused a 24-hour concentration crop X), identify the relevant BMP (e.g., asked that we define large-scale and of SO2 to exceed the level of the annual baling, which reduced PM emissions high-energy events, which we have SO2 NAAQS, the air agency and the from residue burning and chopping) and done in the discussion of the final rule. EPA would consider this to be a provide evidence of penetration, scale Regarding special treatment of these demonstration that the event caused an and intensity (e.g., baling applied at X types of events, we maintain that some ‘‘exceedance or violation’’ with respect of Y acres). events are of a scale and intensity that to the 24-hour NAAQS and the annual they would have overwhelmed all NAAQS. This would avoid the need to c. Comments and Responses reasonable controls and other efforts to determine if the 1-day effect of the event We noted in the final rule portion of minimize wind-blown dust emissions. was enough to cause the annual average the High Winds Dust Events section of We maintain that such events warrant concentration of SO2 to exceed the level this preamble that we did not receive different treatment under the of the annual SO2 NAAQS. It would also comments related to the definition of Exceptional Events Rule. We do, allow the data from a day to be excluded either high wind dust event or high however, note that air agencies will from calculation of the design value for wind threshold. We further noted in the need to provide evidence that the the 24-hour SO2 NAAQS even if the previous discussion that commenters claimed event satisfied all of the other event did not cause an exceedance of did provide feedback regarding Exceptional Events Rule criteria. the level of the 24-hour SO2 NAAQS. establishing, in rule, a high wind We have incorporated relevant However, such exclusion would be threshold of 25 mph. Several commenter feedback regarding BMP unlikely to be material to compliance commenters supported this definition into our discussion of BMP in the final with the 24-hour SO2 NAAQS if there either as proposed or with the rule section of this action. We note that was no such exceedance of the level of clarification that air agencies could one additional commenter asked that we the 24-hour SO2 NAAQS. develop as an alternative to the 25 mph clarify whether the fugitive dust control The EPA also proposed to allow air high wind threshold, their own area- plans included in approved air quality agencies to aggregate either similar or specific high wind threshold that is permits are or can represent reasonable dissimilar events (e.g., stratospheric more representative of local/regional controls for permitted sources. While ozone intrusion followed by a wildfire
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or two distinct wildfires) that influence same pollutant with a longer averaging hours.90 That is, when considered the same NAAQS but that occur on period as part of the clear causal individually, each event would not different days for the purpose of relationship showing. Using Table Q30– separately need to result in an determining whether their collective 2 in the Interim Q&A document 88 as a exceedance or violation of a given effect has caused an exceedance or guide, this rule revision will allow an NAAQS. The collective effect of the violation. The proposed event air agency to compare a 24-hour aggregated events would, however, need aggregation process would apply only averaging period for PM2.5 to either the to cause an exceedance or violation of for NAAQS with averaging or 24-hour PM2.5 NAAQS or the annual a NAAQS with an averaging or cumulative periods longer than 24 NAAQS. (Note: If air agencies desire to cumulative period longer than 24 hours. hours. Although we proposed this exclude the identified concentration for Also, as part of this aggregation approach to event aggregation, we also both the 24-hour and the annual PM2.5 approach, the air agency must show that indicated that it may be difficult to NAAQS, they need to specifically each identified event separately satisfies implement if the effects of the request exclusion for both NAAQS, each of the three technical rule criteria individual events on their individual assuming regulatory significance for (i.e., human activity/natural event, not days are not fully quantified. We both standards.) Air agencies could also reasonably controllable or preventable, proposed rule text and solicited compare a 24-hour lead measurement to and clear causal relationship). For the comment on this approach. the rolling 3-month averaging period. A clear causal relationship showing, the air agency would need to definitively b. Final Rule number of commenters supported the provision as proposed. One commenter, show that each discrete event After consideration of the public however, indicated that comparing a 24- contributed to the elevated comments, as discussed more fully in hour concentration of any NAAQS concentrations and that, together, the the subsequent section, we are pollutant to the NAAQS for the same cumulative effect of the events caused finalizing, as proposed and as supported pollutant with a longer averaging period the exceedance or violation of a NAAQS by several commenters, rule language is an ‘‘apples to oranges’’ analysis that with an averaging or cumulative period that will allow an air agency to compare could increase uncertainty and decrease longer than 24 hours. We do not intend a 24-hour concentration of any NAAQS the quality of the demonstration. The our approach for event aggregation to pollutant to the NAAQS for the same EPA acknowledges the commenter’s allow for the aggregation of unnamed pollutant with a longer averaging period perspective, but believes that events or events that occur over the as part of a weight of evidence showing clarification is needed regarding the course of an extended timeframe. Two for the clear causal relationship with comparison of measured concentrations commenters urged the EPA to remain respect to the NAAQS with the longer to ambient air quality standards silent on this provision and not include period. As we discussed in the proposal, because, as we have explained, the it in rule language, while several other the EPA’s AQS database houses ambient measurement time frames do not often state, local, tribal and association air quality monitoring and related data. agree with the averaging period of the commenters supported the provision as The data in AQS are maintained as NAAQS. In preparing demonstrations, proposed. To clarify, the final rule text individual reported measurements, air agencies have often asked the EPA also includes a statement that air which can range from 5-minute Regional offices whether such agencies may aggregate events occurring maximum concentrations per hour for comparisons are allowed under the on the same day and compare the SO2, to hourly data for ozone, CO, NO2, cumulative effects to a NAAQS with an SO and some PM measurements, to 24- Exceptional Events Rule, and, if they 2 are, how to present such comparisons in averaging period of 24 hours or less. As hour measurements for lead and other previously noted, for the clear causal PM measurements. Under the 2007 a demonstration. Our preamble discussion about these comparisons and relationship showing, the air agency Exceptional Events Rule, air agencies would need to definitively show that identify individual measurements in our promulgation of associated rule language responds to these comments each discrete event contributed to the AQS and compare these measurements elevated concentrations and that, to the subject NAAQS to determine and provides clarity. We also note that the 2007 rule preamble discussed and together, the cumulative effect of the whether an exceedance or violation events caused the exceedance or allowed this type of comparison for the occurred. When the averaging period for violation of the NAAQS and that each specific case of the PM annual the NAAQS is the same as the 2.5 identified event separately satisfies each NAAQS and the 24-hour PM NAAQS. measurement duration period, this 2.5 of the three technical rule criteria (i.e., We are extending this concept to all comparison is relatively straightforward. human activity/natural event, not similar NAAQS comparisons.89 For example, air agencies and the EPA reasonably controllable or preventable, We are also finalizing regulatory can directly compare 1-hour ozone, 1- and clear causal relationship). language allowing air agencies to hour CO, 1-hour SO2, and 1-hour NO2 We provide a specific approach to measurements to the respective 1-hour aggregate either similar or dissimilar aggregating wildfire-related events that NAAQS. This comparison becomes events (e.g., stratospheric ozone occur in different locations on the same more complicated, however, when there intrusion followed by a wildfire or two day in the Wildfire Guidance, which we is a difference between the pollutant distinct wildfires) that influence the are releasing concurrently with this measurement duration and the same NAAQS but that occur on different action. The aggregation methodology in averaging time of the NAAQS, which is days for the purpose of determining the Wildfire Guidance applies for the case when comparing a 1-hour whether their collective effect has purposes of determining whether a measurement to an 8-hour, 24-hour, 3- caused an exceedance or violation of a given wildfire could use a tiered month or annual NAAQS (or in the case NAAQS with an averaging or of 1-hour ozone, the previously existing cumulative period longer than 24 90 See 80 FR 72882, which proposed allowing NAAQS, which may still apply in event aggregation occurring on different days for certain areas). The provision that we are 88 Interim Exceptional Events Rule Frequently NAAQS with averaging or cumulative periods Asked Questions. U.S. EPA. May 2013. Available at longer than 24 hours. It is not appropriate to finalizing allows an air agency to http://www2.epa.gov/sites/production/files/2015- aggregate the effects of events occurring over more compare a 24-hour concentration of any 05/documents/eer_qa_doc_5-10-13_r3.pdf. than a 24-hour period to a standard that is less than NAAQS pollutant to the NAAQS for the 89 72 FR 13570 (March 22, 2007). or equal to 24 hours.
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approach to satisfy the clear causal data from use in determinations with recommended that flagging all 24 1-hour relationship criterion in a respect to ‘‘exceedances or violations of values is appropriate because flagging demonstration for an ozone standard the national ambient air quality only peak or selected hours could result (i.e., either a 1-hour or an 8-hour standards.’’ These passages do not in the remaining 1-hour values still standard). The current ozone NAAQS clearly say that the EPA must or may meeting the data completeness do not meet the pre-conditions for the allow data to be excluded for the requirements, even though there may be aggregation approach discussed here, purposes of all NAAQS for a given very few remaining 1-hour which requires the averaging or pollutant if the conditions for exclusion measurements, because flagged and cumulative period of the standard to be are satisfied for one of the NAAQS but excluded data do not count against longer than 24 hours. Additionally, use not all of them. Even assuming completeness even though they cannot of the aggregation approach in the arguendo that that the passages permit be used in calculating an average Wildfire Guidance would occur only the EPA to allow such exclusions, we concentration for a 24-hour period. after an exceedance or violation of the believe that we would be undermining Under the rules for data interpretation, relevant ozone NAAQS versus the the public health and welfare purpose of exclusion of only the event-affected 1- aggregation approach that we are the NAAQS if we were to allow such hour concentrations could result in AQS finalizing in rule text that would allow broad exclusion. One public commenter calculating a seemingly valid 24-hour aggregation to determine whether an provided a cogent statement of this fact. concentration that is actually highly exceedance or violation occurred. For The CAA also directs that protection of uncertain because it is based on only a these reasons, the regulatory approach public health is the highest priority. The few hours and thus may be biased to aggregation and the specific approach commenters in favor of broad exclusion relative to the actual 24-hour for wildfires that may influence ozone did not provide a legal or public health concentration or the 24-hour concentrations cannot be interchanged. protection basis for their concentration that would have existed recommendations. Therefore, neither 92 c. Comments and Responses in the absence of the event. The the final rule nor the preamble to the proposal solicited comment on We address any additional comments final rule includes language or guidance codifying this approach in rule text to received on this topic in the Response for the proposed ‘‘approved for one eliminate any regulatory uncertainty. to Comments document found in the NAAQS approved for all NAAQS for the docket for this action. same pollutant’’ concept. b. Final Rule After considering the public 2. Demonstrations With Respect to c. Comments and Responses Multiple NAAQS for the Same Pollutant comments we received, and for the We address any additional comments reasons discussed in our proposed rule a. Summary of Proposal received on this topic in the Response section, we are finalizing regulatory The proposal solicited comment on to Comments document found in the language, supported by a number of whether a successful demonstration docket for this action. commenters, to exclude all 24 1-hour with respect to any NAAQS for a given 3. Exclusion of Entire 24-Hour Value values within a given event-affected day pollutant would suffice to qualify the Versus Partial Adjustment of the 24- for PM2.5 and PM10 data obtained via data in question for exclusion with hour Value for Particulate Matter monitor instruments that provide 1-hour respect to all NAAQS for that pollutant. measurements. We believe that the For example, the ‘‘approved for one a. Summary of Proposal exclusion of all hours in a given event- NAAQS approved for all NAAQS for the Citing Question 29 of the Interim Q&A affected day is appropriate, consistent same pollutant’’ concept would have document, the proposal articulated the with the approach for filter based allowed an air agency to prepare a EPA’s current recommendation that air analyzers, and will eliminate the demonstration for a 1-hour NAAQS and, agencies preparing demonstrations to calculation of uncertain and potentially if concurred, exclude data for both a 1- support requests to exclude PM2.5 and biased daily values for PM2.5 and PM10 hour and an 8-hour NAAQS for the PM10 data obtained via monitor NAAQS. We also agree with three same pollutant. instruments that provide 1-hour commenters who suggested that the EPA measurements should flag all 24 1-hour b. Final Rule modify the programming in AQS to values within a given event-affected day automatically flag all remaining hourly Several commenters supported and consider the effect of the event on values in the 24-hour period if an air promulgating rule text for the proposed the 24-hour average concentration, even agency flags only the event-influenced concept that a successful demonstration if the event did not last all these hours. hours within AQS. The EPA will with respect to any NAAQS for a given If concurred upon, flagging all 1-hour program the identified changes within pollutant would suffice to qualify the values and considering the effect of the AQS. data in question for exclusion with event on the 24-hour average respect to all NAAQS for that pollutant, concentration relative to the level of the c. Comments and Responses but one commenter noted that this 24-hour NAAQS ultimately results in We address any additional comments pathway is unlawful and would allow the same available remaining data for received on this topic in the Response air agencies an easier path to exclude regulatory analysis and calculation as unfavorable data. After considering the would be the case had the 24-hour PM2.5 data exclusion outcome as if the measurement had feedback, we are retaining our current or PM10 measurement data been been made with a 24-hour filter. 92 approach to excluding data on a collected from filter-based (24-hour) The form of the 24-hour PM2.5 NAAQS of 35 mg/m3 is 98th percentile averaged over 3 years. The NAAQS-specific basis with the monitoring instruments.91 We further form of the primary annual PM2.5 NAAQS of 12 mg/ previously identified clarifications for m3 is an annual mean averaged over 3 years. The 91 3 certain measurements and certain Filter based instruments typically record a form of the 24-hour PM10 NAAQS of 150 mg/m is NAAQS. CAA section 319(b)(3)(B)(ii) single value within a 24-hour period while not to be exceeded more than once per year on refers to ‘‘the measured exceedances of continuous monitors typically collect 24 1-hour average over 3 years. Biased concentrations can a national ambient air quality standard’’ measurements. Because AQS can calculate a valid potentially skew the determination of the 98th 24-hour average concentration with as few as 18 percentile and/or the annual mean for PM2.5 and the (emphasis added); CAA section hours, it may be necessary to exclude hours not averages for PM2.5 or PM10 calculated to determine 319(b)(3)(B)(iv) references excluding actually affected by the event to ensure the same compliance with the relevant NAAQS.
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to Comments document found in the concentrations at multiple monitors for identify whether or not the event- docket for this action. multiple days, the air agency has added influenced data results in a violation of initial event descriptions and set flags a 3-year design value. An air agency 4. Flagging of Data on each monitored concentration, may not know that data influenced by a. Summary of Proposal sometimes resulting in hundreds of an exceptional event caused the design The EPA proposed to revise the identical individual entries. The value to become a NAAQS violation ‘‘general’’ schedule language contained proposal noted that ‘‘associating’’ until 3 years after the event occurred. within 40 CFR 50.14(c)(2) by removing monitors with an event defined in time No commenters disagreed with this the timelines associated with initial and space will save resources. proposal. event flagging. We also proposed to The proposal noted that the process of One commenter requested that AQS modify the associated data flagging requesting exclusion for identified data retain the ability to incorporate process within AQS to correspond with would consist of two discrete informational flags in the data the proposed regulatory changes.93 operations: (1) Indicating in a separate identification process. This commenter Specifically, the revisions proposed to communication to the EPA that specific noted that informational flagging has modify the flagging of exceptional event ambient air quality measurements are uses beyond the exceptional events data by defining ‘‘flagging’’ as the affected by a defined event (see Section process. We are retaining informational application of the one- or two-character IV.G.5 of this preamble related to Initial flags in AQS. Notification of Potential Exceptional event type and event description text as c. Comments and Responses described in the following paragraph, Event), and (2) requesting that these We address any additional comments along with a concurrent or subsequent identified ambient air quality received on this topic in the Response request for data exclusion measurements be excluded from to Comments document found in the communicated to the EPA through the regulatory actions according to the docket for this action. Initial Notification of Potential Exceptional Events Rule and/or the Exceptional Event process. EPA’s guidance for other applications of 5. Initial Notification of Potential The proposal noted that because the air quality data. The proposal indicated Exceptional Event flagging of data necessarily begins with that AQS would retain a field to allow a. Summary of Proposal the identification of an event, the EPA the EPA to concur or not concur with proposed to retain, with modifications, a given request for exclusion for one or As part of the best practices for the AQS free-form text field for an more of the data points associated with communications 95 during the initial event description. As is currently a described event, once review of the air exceptional events process and to aid all the practice, we would request that air agency’s request and demonstration is agencies in resource planning and agencies use the ‘‘initial event completed. prioritization, the EPA proposed that air description’’ to identify a unique, real- As noted previously, we proposed to agencies and the EPA engage in regular world event. We proposed to expand remove the ‘‘general’’ flagging schedule communications to identify those data this ‘‘initial event description’’ to in 40 CFR 50.14(c)(2)(iii), which that have been potentially influenced by contain a unique event name; the type requires that air agencies submit R flags an exceptional event, to determine of the event (e.g., high wind dust, and an initial description of the event whether the identified data affect a volcanic eruption, other); a brief by July 1 of the calendar year following regulatory determination, and to discuss description of the event; and, to the the year in which the flagged whether an air agency should develop extent known, the scope of the event in measurement occurred or by the other and submit an exceptional events terms of geography and time (e.g., likely deadlines identified with individual demonstration. The proposal indicated affected area using latitude and NAAQS. The proposal noted that an air that most of these discussions would be longitude and a radius of influence and agency may not know that data between individual air agencies and the beginning day/time and ending day/ influenced by an exceptional event reviewing EPA Regional office, but some time).94 We proposed to simplify the caused a violation of a NAAQS until discussions could involve a group process in AQS to allow the air agency after the initial event flagging deadline discussion between the EPA Regional to associate specific AQS sites and has passed. We proposed to remove the office and all air agencies in the region potentially affected monitors and current language at 40 CFR followed by individual discussions, as specific data points with a given event 50.14(c)(2)(iii) and reserve that section needed. In still other cases, such as as so described. We noted that this number. where large events cross state lines and would enable air agencies and the EPA b. Final Rule when two or more states are pursuing to ‘‘flag’’ or add qualifier codes to exclusion for the same event(s), the EPA As proposed, and as supported by region or regions may initiate selected data in a single step rather than numerous commenters, we are removing adding this information or the necessary discussions with all potentially affected the ‘‘general’’ flagging schedule in 40 states/agencies to assist in coordinating codes on a per entry basis. Historically, CFR 50.14(c)(2)(iii), which requires that when events have influenced the states affected by regional events. air agencies submit request exclusion The EPA referred to these flags and an initial description of the 93 ‘‘Flag’’ is the common terminology for a data communications as the ‘‘Initial qualifier code in the EPA’s AQS. Unless explicitly event by July 1 of the calendar year noted, the process of ‘‘flagging’’ data refers to following the year in which the flagged 95 Between September 2014 and March 2015 the adding Request Exclusion (R) data qualifier codes measurement occurred or by the other EPA held conference calls with some air agencies (R flags) to selected data in AQS. R flags are the deadlines identified with individual to ask about exceptional events implementation only AQS flags that satisfy the 2007 Exceptional concerns and to better understand currently Events Rule requirement for initial data flagging. NAAQS. We are making this change employed exceptional events implementation The current design of the AQS software is such that because flagging data by the previously processes and practices. As a result of these the EPA can act/concur only on an R flag. indicated deadlines can be difficult in discussions, the EPA developed a list of best 94 The EPA is proposing that air agencies select the case of an annual standard where an practices for communication and collaboration the ‘‘type of event’’ from a pre-set list of event between the EPA and air agencies, a summary of types, which would likely consist of those event air agency needs all 12 months of data which is available at http://www2.epa.gov/air- types currently identified by existing Informational to calculate an annual average and then quality-analysis/treatment-data-influenced- and R flags within AQS. needs 3 years of annual averages to exceptional-events.
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Notification of Potential Exceptional person meeting with an attendees list description would include a qualitative Event’’ (Initial Notification) process and and discussion summary or phone description of the event and, at a described the purpose of the Initial conversation with follow-up email) that minimum, briefly describe the air Notification process as initiating ultimately identifies the potential need agency’s current understanding of conversations between an air agency to develop an exceptional events interaction of emissions with the event, and the EPA if not already on-going, or demonstration and communicates key transport and meteorology (e.g., wind engaging in more detailed discussions if information related to the data patterns such as strength, convergence, a process is currently in place, regarding identified for potential exclusion. subsidence, recirculation) and pollutant specific data and whether the identified Where an air agency independently formation in the area. data are ripe for submittal as identifies event-affected data and the • Affected regulatory decision— exceptional events. As stakeholders need to submit an exceptional events provides a description of the regulatory have repeatedly expressed and as the demonstration outside of its regular, on- action or actions potentially affected by EPA acknowledges, the identification of going communications with the EPA data affected by exceptional events and Regional office, the air agency could the claimed event-influenced data and the subsequent preparation, submittal prepare a letter or email communicating the anticipated timing of this action. and review of demonstrations is a its Initial Notification. Generally, the • Proposed target date for resource intensive process both for the EPA anticipates that air agencies would demonstration submittal—identifies the preparing air agency and the reviewing develop and provide an Initial proposed target date by which the air EPA Regional office. Notification as soon as the agency agency would submit a demonstration The proposal also noted that if these identifies event-influenced data that to the reviewing EPA Regional office. data do not have regulatory significance, potentially influence a regulatory • Most recent design value including then engaging in the development and decision or when an agency wants the and excluding the event-affected data— review of an exceptional events EPA’s input on whether or not to the air agency’s assessment of the most 96 demonstration is generally not an prepare a demonstration. The EPA recent design value both with and efficient use of an air agency’s or the further proposed that each Initial without the identified event(s) is helpful EPA’s limited resources. As described in Notification would include the when assessing regulatory significance. the proposal, the Initial Notification following components: The EPA cannot accurately calculate process would focus efforts on the • Unique event name (field in AQS)— this value (and therefore may not be relevant data and provide the EPA with facilitates future communication and able to determine significance) if the air the opportunity to convey to the understanding between the submitting agency has flagged more data than it affected air agency our initial thoughts air agency and the reviewing EPA intends to include in an exceptional regarding the identified event and Regional office, particularly if an air events demonstration. analyses that may or may not be agency has submitted multiple appropriate for inclusion in a exceptional events demonstrations. • Information specific to each demonstration, and, with respect to • Initial event description (field in monitored day—see Table 5 for an regulatory significance, which AQS)—provides a brief narrative of the example of the type of table that could demonstrations the EPA will consider event that could also include maps or be used, which would be developed by for review. graphs similar to what an air agency the submitting air agency and generated The proposal indicated that the Initial might include in the narrative from the initial event description in Notification could include any form of conceptual model discussed in Section AQS (see discussion in Section IV.G.4 of communication (e.g., letter, email, in- IV.G.6 of this preamble; the event this preamble).
The proposal indicated that, after one Notification via letter, email or in- received, any case-specific advice the or more informal phone discussions person meeting with an attendees list EPA may have to offer for the with the air agency, the EPA would and discussion summary. The response preparation of the demonstration, and acknowledge an air agency’s Initial would provide the EPA Regional office’s the target date for demonstration Notification and then formally respond best assessment of the priority 97 that submittal. Where the data are to be used within 90 days of receipt of the Initial can be given to the submission once in initial area designations, the EPA
96 The EPA recognizes that air agencies can makes sense for resource planning or for recurring demonstrations (including clean data findings), immediately identify those events that result in an seasonal events. attainment date extensions, findings of SIP exceedance of a NAAQS with a short averaging time 97 ‘‘Priority’’ refers to those exceptional events inadequacy and other actions on a case-by-case (e.g., 1-hour, 8-hour or 24-hour standards) but may determinations that affect near-term regulatory basis determined to have regulatory significance. need additional time for an annual average decisions. ‘‘Regulatory decisions’’ include findings See discussion in Section IV.B of this preamble for standard. An air agency could also submit an as to whether the area has met the applicable additional detail. annual Initial Notification if annual submittal NAAQS, classification determinations, attainment
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proposed to rely on the documentation exceedances of an applicable national days of receipt of the Initial submission schedule that, at the time of ambient air quality standard as being Notification.101 We discuss the EPA’s the proposal, appeared as Table 1 at 40 due to an exceptional event by creating response timeframes in more detail in CFR 50.14(c)(2)(vi).98 Where the data an initial event description and flagging Section IV.G.7 of this preamble. would influence another near-term the associated data that have been When the EPA promulgated the regulatory decision, the EPA proposed submitted to the AQS database and by revised ozone NAAQS in 2015,102 we to rely on the case-by-case timelines by engaging in the Initial Notification of revised the flagging, initial event which the air agency should submit the Potential Exceptional Event process description and demonstration demonstration. For case-by-case . . . .’’ The EPA solicited comment on submittal deadlines for data influenced demonstrations, the EPA’s the proposed rule text revision (in 40 by exceptional events for use in the recommended date for demonstration CFR 50.14(c)(2)) to require an Initial initial area designations process. We did submittal would consider the nature of Notification of Potential Exceptional not propose any changes to this the event and the anticipated timing of Event, with a provision that the EPA schedule as part of the proposed the regulatory decision, and would could waive the Initial Notification revisions to the Exceptional Events allow time for both an air agency’s requirement on a case-by-case basis. We Rule. However, because we are preparation of the demonstration and also solicited comment on making the finalizing the Initial Notification process the EPA’s review. Additionally, the EPA Initial Notification of Potential in this action, which includes a would request in its response that, if the Exceptional Event a voluntary process. requirement for air agencies to flag data submitting air agency has not already The proposal also included the within AQS, if appropriate, and identified the affected data within AQS, associated revisions to rule text at (ii): characterize the identified event, we are that it undertake this effort according to ‘‘The data shall not be excluded from revising the ‘‘flagging and initial event the process described in Section IV.G.4 determinations with respect to description’’ language in Table 2 to 40 of this preamble. If the data identified exceedances or violations of the CFR 50.14 that we promulgated with the in the Initial Notification do not have national ambient air quality standards ozone NAAQS to read ‘‘Initial regulatory significance as discussed in unless and until, following the State’s Notification.’’ We are not changing the Section IV.B of this preamble, then the submittal of its demonstration pursuant schedules for event-influenced data that EPA would indicate this in its to paragraph (c)(3) of this section and may affect decisions associated with the correspondence back to the air agency the Administrator’s review, the initial area designations process. and would discourage the air agency Administrator notifies the State of its c. Comments and Responses from devoting resources to developing a concurrence by placing a concurrence demonstration because the EPA would flag in the appropriate field for the data Other than the comments related to likely not review or act upon the record in the AQS database.’’ the ‘‘voluntary’’ versus ‘‘required’’ submittal. nature of the Initial Notification process, The proposal further noted that if the b. Final Rule the majority of the remaining comments EPA has acknowledged as part of the In response to our solicitation for on this topic pertained to the content of Initial Notification process that comment, several commenters indicated the Initial Notification and to the identified data have regulatory their desire for a voluntary Initial mechanics of communications between significance (or some other compelling Notification of Exceptional Event the EPA and affected air agencies. Two reason for excluding data), then the air process, while others indicated their state commenters agreed with the agency should proceed with the desire that the Initial Notification proposed content of the Initial development of a technical process be promulgated in rule text as Notification to include: A unique event demonstration that satisfies the a requirement. To provide more name, an initial event description, the requirements in 40 CFR 50.14 and regulatory certainty for all involved affected regulatory decision, a proposed accounts for any case-specific advice parties, we are finalizing the Initial target date for demonstration submittal, from the EPA and additional Notification process as proposed, which the most recent design value (including information in the EPA’s guidance and excluding the event-affected data), 99 includes a requirement for air agencies documents. The proposal specified to engage in communications with the and basic information specific to each that although air agencies could submit EPA once they identify a potential monitored day. Other commenters demonstrations for events that do not event; for air agencies to flag data within indicated that the content of the Initial affect a regulatory action, the EPA AQS, if appropriate; for the EPA to Notification should not be specified. would likely not review or act on such identify a demonstration submittal date While we are not specifying required submittals. that considers the nature of the event content in regulatory language, we are To support the previously and the anticipated timing of the providing example content of an Initial summarized process, the EPA proposed regulatory decision that may be affected Notification in this preamble. We also to revise the language in 40 CFR by the exclusion of the flagged data; and note that individual EPA Regional 50.14(c)(2)(i) as follows: ‘‘A State shall an option for the appropriate EPA offices may implement procedures notify the [EPA] of its intent to request official to waive the Initial Notification within their regions to assist with event exclusion of one or more measured process.100 We also intend to formally 101 As previously indicated, the Initial 98 This table appears as Table 2 at 40 CFR respond (via email or letter) to an air Notification could include any form of 50.14(c)(2)(vi) in the Exceptional Events Rule agency’s Initial Notification within 60 communication (e.g., letter, email, in-person revisions that we are promulgating in this action. meeting with an attendees list and discussion 99 Interim Guidance to Implement Requirements 100 As discussed in Section IV.A.2 of this summary or phone conversation with follow-up for the Treatment of Air Quality Monitoring Data preamble, if an air agency authorizes an FLM or email) that ultimately identifies the potential need Influenced by Exceptional Events. Memorandum other federal agency to prepare and submit to develop an exceptional events demonstration and from Stephen D. Page, U.S. EPA Office of Air exceptional events demonstrations directly to the communicates key information related to the data Quality Planning and Standards, to Regional Air EPA, the air agency should also indicate in this identified for potential exclusion. The EPA’s Directors, Regions I–X. May 10, 2013. Available at authorization whether an FLM can initiate the timeline for formally responding to an agency’s http://www2.epa.gov/sites/production/files/2015- Initial Notification of Potential Exceptional Event Initial Notification is based on the date of receipt 05/documents/exceptevents_guidememo_ process and whether this process would include or of the identified communication. 130510.pdf. exclude the authorizing air agency. 102 80 FR 65292 (October 26, 2015).
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identification, prioritization and the EPA’s review. We believe this agencies have previously expressed processing. process adequately addresses the concern that the timelines for event Regarding communications between commenter’s concerns without the need flagging and demonstration submittal the EPA and affected air agencies, one for regulatory text. are not always appropriate because an commenter encouraged the EPA to air agency may not know that data ensure communication is formalized in 6. Submission of Demonstrations influenced by an exceptional event writing and clarify that the EPA should a. Summary of Proposal caused the design value exceedance 103 initiate conversations regardless of the With respect to the submission of until 3 years after the event occurred. ‘‘completeness’’ of the notification to demonstrations, the EPA proposed to The EPA has previously acknowledged avoid confusion about whether the EPA make the following changes to the that this scenario can and does occur, has received the notification. Another regulatory language in 40 CFR particularly for annual standards and commenter asked that we include 50.14(c)(3): when a regulatory decision is based on regulatory language requiring that the • Remove the general schedule a design value that is averaged over 3 EPA negotiate a timeline for provisions in 40 CFR 50.14(c)(3)(i) for years. demonstration submittal based on the With respect to the public comment submitting demonstrations. available (and sometimes very limited) provisions for a developed • Move the language requiring an air resources of the affected air agency. We demonstration, the EPA proposed to agency to include the comments it interpret this comment to mean that the move the language requiring an air received during the public comment ‘‘negotiation’’ requirement would be a agency to include the comments it period for the subject demonstration requirement for air agency agreement on received during the public comment from 40 CFR 50.14(c)(3)(i) to (v). the timeline for submittal rather than a period for the subject demonstration • Modify the language at 40 CFR consultation on timing. from 40 CFR 50.14(c)(3)(i) to (v) to 50.14(c)(3)(iv) to more clearly identify The EPA agrees with the commenter consolidate the required elements of the the required elements of an exceptional that decisions or specific direction public comment process for exceptional events demonstration to include (1) a provided or agreed to between the EPA events demonstrations within a single narrative conceptual model and (2) Regional office and the affected air regulatory provision. The proposal demonstrations and analyses that agency should be communicated in noted that the language at 40 CFR writing either by letter or email. By address the core statutory technical 50.14(c)(3)(i) requires that ‘‘A State must criteria. decisions or direction, we generally • submit the public comments it received mean decisions regarding whether a Modify the language at 40 CFR along with its demonstration to EPA.’’ potential event has regulatory 50.14(c)(3)(v) to identify that a The ‘‘public comments it received’’ refer significance (including the EPA’s intent demonstration submittal must include to those obtained when the air agency with respect to review), direction (1) documentation that the air agency follows the process outlined in 40 CFR regarding specific event day(s) to pursue conducted a public comment process on 50.14(c)(3)(v), which requires the air and/or information to include in a its draft exceptional events agency to document, and submit with demonstration and decisions related to demonstration that was a minimum of its demonstration, evidence that it target dates for demonstration submittal. 30 days, which could be concurrent followed the public comment process. The EPA also agrees that we should with the EPA’s review, (2) any public Because the public comment process acknowledge receipt, in writing, of any comments received during the public described in the 2007 rule did not submitted written Initial Notification. comment period and (3) an explanation identify a duration for the public We do not, however, agree with the of how the air agency addressed the comment process, the EPA also other commenter’s suggestion to include public comments. proposed to specify a minimum 30-day regulatory language requiring a As described in more detail in the public comment process, which negotiated timeline for demonstration proposed rule, the EPA proposed to provides sufficient time for exchange submittal based on the available remove the provision in 40 CFR between the reviewing public and the resources of the affected air agency. 50.14(c)(3)(i) that requires air agencies air agency. We noted that shorter First, such a regulatory requirement to submit a demonstration ‘‘not later comment periods may not provide would not provide for an outcome than the lesser of 3 years following the necessary time for the public to research should the negotiations between the air end of the calendar quarter in which the the identified event and associated agency and the EPA Region office fail to flagged concentration was recorded or supporting data while longer timeframes reach agreement. Also, an air agency’s 12 months prior to the date that a may not be possible where a near-term failure to meet a regulatory deadline regulatory decision must be made by regulatory decision relies on an could have different consequences than EPA.’’ In place of this language, the EPA exceptional events decision. The an air agency’s failure to meet an EPA- proposed to rely on the documentation proposal stated that in very limited identified target date. As we noted in submission schedule that, at the time of cases where the air agency is relying on the proposal and this preamble, the EPA the proposal, appeared as Table 1 at 40 exceptional events claims as part of a will establish a target date for CFR 50.14(c)(2)(vi) in those cases where near-term regulatory action, such as an demonstration submittal, which the the data are to be used in initial area initial area designation decision for a EPA will communicate in writing, after designations. If the data could influence new or revised NAAQS under a 2-year discussing the specifics of the potential a regulatory determination other than an designation schedule, the public event with the affected air agency and initial area designation, the EPA comment period could be concurrent after considering the nature of the event, proposed to rely on the case-by-case with the EPA’s review provided the the anticipated timing of the regulatory timelines established by the reviewing submitting air agency sends any decision, the target date for EPA Regional office as part of the Initial received public comments and demonstration submittal proposed by Notification of Potential Exceptional the air agency as part of its Initial Event process. As we noted when 103 Responses to Significant First-Round Notification (if provided), and the discussing removing the deadlines Comments on the Draft Guidance Documents on the Implementation of the Exceptional Events Rule, available time for both the air agency’s associated with initial event flagging in U.S. EPA, June 2012. Available in Docket No. EPA– preparation of the demonstration and Section IV.G.4 of this preamble, air HQ–OAR–2011–0887.
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responses to the EPA by a specified concentration was recorded or 12 the air agency addressed the public date. If an air agency receives public months prior to the date that a comments. As indicated in 40 CFR comment disputing the technical regulatory decision must be made by 50.14(c)(3)(v)(A), we have also finalized elements of a demonstration during a EPA,’’ we are not changing the timing of 30 days as the minimum duration for a comment period that runs concurrent the regulatory actions in which the public comment period. with the EPA’s review and these affected data may be used. Many of We are promulgating revisions to the comments result in the air agency’s these deadlines are statutorily submission and required elements of an need to reanalyze or reassess the established and cannot be changed by exceptional events demonstration at 40 validity of a claimed event, a second regulation. Because the EPA is also CFR 50.14(c)(3)(iv), as proposed, for the public comment period may be accountable for these statutory previously stated reasons and as necessary. deadlines, the effect of this now supported by commenters. Regarding The EPA also proposed to revise the finalized exceptional events scheduling the requirement that components of a language at 40 CFR 50.14(c)(3)(iv) so revision is compressing the timeline for demonstration include a narrative that it more clearly identifies the the EPA’s review. conceptual model, one commenter required elements of an exceptional The final rule will provide limited asked that we use the terminology events demonstration. The EPA flexibility regarding the deadline for ‘‘narrative’’ or ‘‘executive summary’’ proposed that each demonstration begin submitting exceptional events rather than ‘‘conceptual model.’’ We with a narrative conceptual model demonstrations that are otherwise due have retained the use of narrative supported by summary tables or maps, October 1, 2016. Given the close conceptual model because we believe which summarizes the event in question proximity of the Federal Register this best conveys our intent, which is and provides context for required publication date of this revised rule the ‘‘story’’ or ‘‘executive summary’’ of statutory technical criteria analyses. The with the demonstration submittal the event that provides an overview of EPA further proposed, consistent with deadline for data influenced by the technical information in the other proposed changes, that an air exceptional events that could be used in demonstration and helps identify agency include in its demonstration to the initial area designation decisions for relevant quantitative information justify data exclusion evidence that the the 2015 Ozone NAAQS, we are critical in satisfying the Exceptional following statutory technical criteria are intentionally adjusting the deadline for Events Rule criteria. In most cases, air satisfied: those demonstrations in Table 2 to agencies will support the discussion in • The event was a human activity that § 50.14 and intend for this deadline to the narrative conceptual model with is unlikely to recur at a particular apply to submissions that would tables and maps. location or was a natural event. otherwise be due October 1, 2016. This • The event was not reasonably rule is being promulgated in advance of c. Comments and Responses controllable or preventable. the October 1, 2016 deadline for the • We address any additional comments The event affected air quality in 2015 Ozone NAAQS designations, received on this topic in the Response such a way that there exists a clear providing stakeholders with sufficient to Comments document found in the causal relationship between the specific notice of this updated submission docket for this action. event and the monitored exceedance or deadline. As set forth in Table 2 to violation (supported in part by the § 50.14, exceptional events 7. Timing of the EPA’s Review of comparison to historical concentrations demonstrations must be submitted to Submitted Demonstrations and other analyses). the EPA on the later of (1) sixty days a. Summary of Proposal The EPA sought comment on the after the effective date of this rule or (2) identified proposed changes to the the date that state and tribal The proposal summarized and language at 40 CFR 50.14(c)(3)(i), (iv) recommendations are due to the clarified some of the EPA’s previous and (v), which more clearly identify the Administrator. Going forward, statements regarding the prioritization required elements of an exceptional exceptional events demonstrations will and submittal of demonstrations, and events demonstration. be due no later than the date that state proposed regulatory language to increase the efficiency of preparing, b. Final Rule and tribal designation recommendations are due to the Administrator. submitting and reviewing exceptional As with our proposal to remove the We received no significant comments events demonstrations. We did not general schedule deadlines associated regarding the proposed revisions propose any changes to regulatory with initial event flagging, the associated with the public comment language pertaining to the timing of the overwhelming majority of commenters process. Therefore, for the previously EPA review process. Rather the proposal supported our proposal to remove the explained reasons, we are finalizing, as discussed processes, expectations and general schedule demonstration proposed, the repositioning of the communications concerns, which are at submittal deadlines contained within 40 requirement that an air agency include the center of timing-related issues. CFR 50.14(c)(3)(i). Therefore, upon any received public comments from 40 The proposal articulated the EPA’s consideration of those comments and CFR 50.14(c)(3)(i) to (v). We are also previously expressed commitment to for the reasons previously explained, we promulgating the revised language at 40 work collaboratively with air agencies are promulgating this provision as CFR 50.14(c)(3)(v) to identify that a as they prepare complete proposed. One commenter expressed demonstration submittal must include demonstrations. As we have previously general support for this concept (1) documentation that the air agency communicated, demonstrated and provided the deadline for demonstration conducted a public comment process on summarized in our best practices for submittals is not extended. In response, its draft exceptional events communications,104 we encourage we note that while the deadline for demonstration that was a minimum of ongoing discussions between the demonstration submittal might be 30 days, which could be concurrent longer than it would have been under with the beginning of the EPA’s initial 104 Best Communication Practices for Preparation of Exceptional Event Demonstrations, U.S. EPA, the previous deadline of ‘‘the lesser of review period, (2) any public comments OAQPS, 2015. Available at http://www2.epa.gov/ 3 years following the end of the received during the public comment air-quality-analysis/treatment-data-influenced- calendar quarter in which the flagged period and (3) an explanation of how exceptional-events.
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reviewing EPA Regional office and the in these cases, the EPA would not respond with the requested information. submitting air agency through the intend to issue a formal notice of The EPA intends to track progress on duration of the exceptional events deferral. If the air agency later decided demonstrations with regulatory process beginning with the Initial to pursue the exceptional events claim significance and this 12-month period Notification of Potential Exceptional after a 12-month period of inactivity, it will ensure air agency accountability for Event. Implementing the approaches may re-initiate the exceptional events its demonstrations and will allow the identified by air agencies has generally process by submitting a new Initial EPA to appropriately prioritize improved the exceptional events Notification of Potential Exceptional resources. Although the EPA anticipates process by improving relationships Event followed by a new demonstration, ongoing discussions with the air agency, between air agencies and the EPA which could simply be revising the if the EPA has not received information Regional office, clarified expectations, original submittal to include the from the air agency in response to the and resulted in decreased instances of additional information previously EPA’s request for additional submissions containing insufficient or requested by the EPA. information, then least a month before unnecessary information. The proposal explained that at the the expiration period, the EPA will The proposal clarified our continued conclusion of the EPA’s review, the EPA remind the air agency in writing (e.g., a efforts to improve the exceptional would make a determination regarding letter or email) of the upcoming events process, in part through the status of a submitted exceptional deadline. The EPA will work with improved communications but also events demonstration. The EPA’s individual air agencies to address those decision could result in concurrence, through regulatory changes and situations where a response is nonconcurrence or deferral.105 workload prioritization. On this last In acting insufficient or where an air agency point, the proposal identified that in on a submitted demonstration covering needs additional time to prepare needed reviewing submitted demonstrations, multiple event days and/or multiple analyses or assemble identified the EPA will generally give priority to flags, the EPA could concur with part of information. If the air agency has not exceptional events determinations that a demonstration and nonconcur or defer responded within this 12-month may affect near-term regulatory other flagged values. If the EPA timeframe, then the EPA’s review of the decisions, such as the EPA’s action on determined that the events addressed in demonstration will terminate. The EPA can provide notification of such SIP submittals, NAAQS designations an exceptional events demonstration are termination by sending written and clean data determinations (see not anticipated to affect any future notification (e.g., a letter or email) to the discussion in Section IV.C of this regulatory decision, the EPA could defer review of these events and notify the affected air agency. preamble). The proposal stated the Although we are not promulgating EPA’s intent to make a decision submitting agency if a subsequent review results in a determination that timelines in rule language for the EPA’s regarding event status expeditiously response to demonstrations, we are following submittal of a complete the events would affect a regulatory decision.106 The proposal stated that identifying here the response timelines demonstration if required by a near-term that we intend to follow during the regulatory action. If during the review formal mechanisms for deferral could include the EPA’s indicating this Initial Notification and demonstration process the EPA identifies the need for review processes. As we stated in additional information to determine decision by letter, by email to a responsible official or during a high- Section IV.G.5.b of this preamble, the whether the exceptional events criteria EPA intends to acknowledge receipt are met, the EPA will notify the level meeting with an attendees list and discussion summary. shortly after receiving an air agency’s submitting air agency and encourage the Initial Notification and then formally agency to provide the supplemental b. Final Rule respond to the Initial Notification information. If the information needed For the previously explained reasons within 60 days. The EPA response will is minor and a natural outgrowth of and as supported by one commenter, the provide the EPA Regional office’s best what was previously submitted, the EPA EPA is finalizing with some clarification assessment of the priority that can be will not require the air agency to to the proposed language, the regulatory given to the submission once received, undergo an additional public notice- provision at 40 CFR 50.14(c)(3)(vi) to any case-specific advice the EPA may and-comment process. However, if the cease review of a demonstration have to offer for the preparation of the needed information is significant, the following a 12-month period of demonstration, and the target date for EPA may request that the air agency re- inactivity by the submitting air agency. demonstration submittal. notice the demonstration before This finalized provision would apply The EPA generally intends to conduct resubmitting it to the EPA, thus when the air agency has submitted a its initial review of an exceptional requiring an additional EPA review demonstration for which the EPA has events demonstration with regulatory following resubmittal. The EPA will requested additional information, as significance within 120 days of receipt. work with air agencies on supplemental indicated in writing by letter or email. This initial review could be extended in timeframes; however, the mandatory The air agency will have 12 months certain circumstances, such as if the timing of the EPA actions may limit the from the date of the EPA’s request to EPA is reviewing a demonstration response time the EPA allows. The EPA concurrent with an air agency’s public proposed to include as rule text a 105 The EPA anticipates a reduced number of comment period. Following this initial requirement for the air agency to submit deferrals and/or nonconcurrences for review, the EPA will generally send a additional information within 12 demonstrations associated with the Initial letter or email to the submitting air months. If additional information is not Notification of Potential Exceptional Event process agency that includes a completeness as discussed in Section IV.G.5 of this preamble received in 12 months, then the EPA because the EPA and the affected air agency would determination and/or a request for would consider the submitted have discussed issues/concerns prior to the EPA’s additional information, a date by which demonstration inactive, and would not decision on a submitted demonstration. the supplemental information should be continue the review or take action. In 106 Routine status calls between the reviewing submitted (if applicable), and an EPA Regional office and air agencies could include effect, an air agency’s lack of response an agenda item to review the status of all submitted indicator of the timing of the EPA’s final within a 12-month period would ‘‘void’’ demonstrations, including those that the EPA has review. The EPA intends to make a the submittal. The proposal stated that deferred. decision regarding event concurrence as
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expeditiously as necessary if required demonstration without adequate review submitted and unprocessed by a near-term regulatory action, but no would not ensure that air agencies are demonstrations that otherwise remain later than 12 months following taking appropriate and reasonable ‘‘open.’’ To request a response for an submittal of a complete demonstration. actions to protect public health from inactive demonstration, we ask that the In addition, if an air agency submits exceedances or violations of the affected air agency contact the a demonstration for an event not NAAQS. Another consequence of reviewing EPA Regional office and discussed in the Initial Notification missing a promulgated deadline could inquire as to the most appropriate next process or that the EPA has determined be the opportunity for an air agency, or, steps. during the Initial Notification process to potentially, another interested party, to Two commenters supported, and not to have regulatory significance (and file a lawsuit. This action is also not several opposed, the EPA’s regulatory there is no other compelling reason for likely to expedite a decision on a given provision to terminate the EPA’s excluding data), then the EPA will demonstration. obligation to review a demonstration ‘‘close out’’ a submitted demonstration While we are not promulgating following a 12-month period of with a ‘‘deferral letter’’ within 60 days timelines in rule language for EPA’s inactivity by the air agency. One of of receipt of the demonstration. action, this preamble identifies the these supporters asked that, to facilitate response timelines that we intend to transparency, that the EPA develop a c. Comments and Responses follow during the Initial Notification publicly-accessible and transparent Numerous commenters asked that the and demonstration review process. tracking system or otherwise provide EPA promulgate deadlines by which the Further, we have finalized provisions status updates. The EPA agrees that a EPA must act on exceptional events that focus on exceptional events national tracking system could be demonstrations. We are accountable for demonstrations that have regulatory valuable. We intend to explore this many statutorily-established deadlines significance, which means that the concept further as we implement these for regulatory action. We also note that demonstrations affect the outcome of a rule revisions. promulgating timelines for action might regulatory action. We are committed to 8. Dispute Resolution Mechanisms not have the intended result of taking action on all submitted expediting the EPA’s action because it demonstrations that have regulatory In the November 2015 proposal, the could force both the air agencies and the significance. EPA discussed currently available EPA to focus their efforts and limited Two commenters expressly supported dispute resolution mechanisms but resources on demonstrations that the EPA’s approach to prioritizing neither proposed any associated ultimately have no regulatory exceptional events demonstrations to regulatory language nor solicited significance. Or, promulgated timelines focus on those that affect regulatory comment on the dispute resolution could cause the EPA to act on determinations. Several other process. Rather, the proposal explained determinations in the order in which commenters indicated their belief that that there is no need for a formal they were received instead of allowing the EPA should act on all submitted dispute resolution mechanism for the EPA to prioritize demonstrations for demonstrations. Regarding acting on all exceptional events for the following nearer-term regulatory actions or demonstrations, we have taken reasons: (1) The existing dispute mandated regulatory actions. numerous steps in this action and resolution mechanisms are sufficient, Establishing regulatory deadlines also otherwise to improve the exceptional (2) the EPA is committed to focusing on implies consequences for missing such events process and we maintain that, communication and collaboration with deadlines. Three commenters have given limited resources, both the air the submitting air agency through the suggested that the EPA’s failure to act agencies’ and the EPA’s efforts should exceptional events demonstration on a submitted demonstration within a focus on the development and review of process, and (3) this final action promulgated timeframe should result in those demonstrations that affect includes useful clarifications that automatic approval of the subject regulatory determinations. Expending should reduce disagreements between demonstration. The EPA’s inaction time and energy on demonstrations that air agencies and the EPA regarding the cannot be assumed to be approval of a will not influence the outcome of a adequacy of demonstrations. demonstration. By statute in CAA regulatory action is generally not an Despite our statement that we were section 319(b), exceptional events must efficient use of resources. As we have not soliciting comment of the topic of satisfy certain definitional and indicated in numerous passages in this dispute resolution, numerous procedural requirements, including a final action, we will consider commenters requested that the EPA determination by the Administrator. exceptional events demonstrations on a promulgate a dispute resolution process. These CAA criteria cannot be presumed case-by-case basis and air agencies will Although commenters specified that the to be satisfied unless the Administrator have an opportunity to state their process be ‘‘judicially appealable,’’ concurs.107 Inaction is not concurrence. position during the Initial Notifications ‘‘include an independent third party Additionally, approval by default is not process. Unless there is a compelling with technical expertise’’ and/or appropriate because it would not ensure reason, we will ‘‘close out’’ those ‘‘involve multiple EPA decision that air agencies and the EPA are demonstrations that we receive, which makers,’’ no commenters provided upholding the principles and were not discussed in the Initial substantive suggestions as to the requirements of CAA section 319(b). Notification process or those which the mechanism by which a dispute Specifically, automatic approval of a EPA has determined during the Initial resolution process could be Notification process do not have implemented. In this action, we are not 107 As discussed in more detail in Section IV.G.7 regulatory significance. promulgating a dispute resolution of this preamble, concurrent with these rule Another commenter asks that the EPA revisions, the EPA has revised the delegation of mechanism. We are, however, restating authority for exceptional events decision making. ‘‘grandfather’’ or otherwise respond to currently available elevation measures These authorities were previously delegated to the those demonstrations that have been and the EPA’s internal mechanisms that EPA Regional Administrators and, under the previously submitted but on which the ensure regional consistency. revised delegation, may be redelegated from the EPA Regional Administrator to the Regional Air EPA has not yet acted. In promulgating As noted in the proposal, several Division Director or equivalent highest manager these final rule revisions, we are taking mechanisms currently exist that air who exclusively oversees air programs. no actions with respect to previously agencies can use at various points in the
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exceptional events process. These EPA’s Office of General Counsel. The part by requiring states to provide notice mechanisms include engaging in early work group typically meets once each of events to the public. dialogue with the reviewing EPA month and discusses technical and The EPA promulgated the Regional office, submitting requests for policy issues regarding exceptional ‘‘mitigation’’ measures 109 at 40 CFR reconsideration to the official who made events, including best practices 51.930 when we finalized the the determination if a request identifies implemented within the regions, new or Exceptional Events Rule in 2007, but we a clear error or if the reviewing EPA evolving tools and technologies to help did not incorporate these measures into Regional office overlooked information identify events and assess their impacts, the criteria and processes by which data submitted by the affected air agency, upcoming regulatory decisions that are excluded from use in regulatory and/or elevating the concern within the could be influenced by event determinations. The provisions at 40 EPA’s chain of command. Additionally, determinations and opportunities for CFR 51.930 require air agencies air agencies can raise any unresolved outreach. In addition, at each meeting, requesting data exclusion to take event-related issues during the regional participants report on the status appropriate and reasonable actions to regulatory process that relies upon the of exceptional events actions in their protect the public health from claimed event-influenced data by respective states. This event report out exceedances or violations of the participating in related public notice- also includes a discussion of new event NAAQS, promptly notify the public and-comment processes and/or types and/or novel policy issues and when the air exceeds or is expected to challenging in an appropriate court the provides an opportunity for regional exceed the NAAQS, and educate the regulatory decision subsequently made and OAQPS review of and input on public regarding steps they can take to based in part on the EPA’s exceptional specific demonstrations. These minimize exposure. These requirements events determination. collaborative reviews are particularly apply whenever an air agency requests The EPA did not specifically identify relevant for new events (such as for the data exclusion, regardless of whether in the proposal some of the internal 2012 Wyoming Stratospheric Ozone the EPA approves the exclusion. steps we have taken to improve our Intrusion).108 Although air agencies submitting ability to act on exceptional events As noted in the proposal, with demonstrations must meet the activities and actions in a timely and exceptional events decisions, the air requirements at 40 CFR 51.930, the efficient manner. First, we have agency has opportunities to elevate provisions do not require air agencies to expanded the number of officials within concerns during two processes: The submit their identified measures to the the EPA who can make exceptional exceptional events determination and EPA or to notify the EPA of the events decisions. While the language of the subsequent regulatory action that measures an air agency plans to take or CAA section 319(b) states that decision relies on the exceptional events has taken. The mitigation measures that making on exceptional events is a decision. the EPA has seen air agencies practicing process undertaken by the V. Mitigation most commonly are those related to the Administrator, our promulgation of the requirement that air agencies ‘‘provide 2007 Exceptional Events Rule was Section 319(b)(3)(A) of the CAA for prompt public notification whenever accompanied by a delegation of identifies five principles that the EPA air quality concentrations exceed or are authority delegating the decision must follow in developing expected to exceed the NAAQS.’’ Often, making for exceptional events from the implementing regulations for these public notifications have included Administrator to the Assistant exceptional events: public health alerts for high wind dust Administrator for Air and to the EPA (i) Protection of public health is the highest events or wildfires. Other aspects of Regional Administrators. However, this priority; mitigation, including implementing delegation did not allow for final (ii) Timely information should be provided appropriate measures to protect public decision making below the EPA to the public in any case in which the air health beyond notification, are also Regional Administrator level. As part of quality is unhealthy; (iii) All ambient air quality data should be important in implementing the CAA this rule revision process, we revised guiding principle that ‘‘each State must the delegation of authority for included in a timely manner in an appropriate federal air quality database that take necessary measures to safeguard exceptional events to allow for is accessible to the public; public health regardless of the source of redelegation from the EPA Regional (iv) Each state must take necessary the air pollution.’’ Administrator to the EPA Regional Air measures to safeguard public health Division Director or equivalent highest regardless of the source of the air pollution; A. Summary of Proposal manager who exclusively oversees air and The proposal identified several programs. If an EPA Regional (v) Air quality data should be carefully possible changes to the mitigation- screened to ensure that events not likely to Administrator elects to pursue related rule components and solicited redelegation, then the EPA Regional Air recur are represented accurately in all monitoring data and analyses. comment on approaches ranging from Division Director (or equivalent retaining the existing rule requirements manager) would make exceptional The regulatory requirements at 40 CFR 51.930 to including several events decisions and the EPA Regional implementing (iii) and (v) of this part of new components. The proposal Administrator would be an additional the statute are found in 40 CFR 50.14 indicated that as a result of commenter resource available within the elevation while the regulatory requirements feedback, we might make no changes, process for an air agency wishing to implementing (i) and (iv) are found in adopt all of the presented components, elevate concerns regarding an 40 CFR 51.930, Mitigation of or adopt some of the described features. exceptional events-related decision. Exceptional Events. Both §§ 50.14(c)(1) The proposal also indicated that, if The proposal also did not explain the and 51.930(a)(1) implement (ii) of this finalized, the identified mitigation role of the EPA’s National Exceptional components, which would be an 108 Events Work Group. This work group Wyoming Department of Environmental obligation for an affected air agency and consists of technical and policy staff Quality, Air Quality Division. Big Piney and Boulder, Wyoming Ozone Standard Exceedance, within the EPA’s Office of Air Quality June 14, 2012. Available at http://www2.epa.gov/ 109 The term ‘‘mitigation’’ does not appear in CAA Planning and Standards (OAQPS), each air-quality-analysis/exceptional-events- section 319(b). It appears in the title but not the text of the EPA’s Regional offices and the submissions-table. of 40 CFR 51.930.
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serve as criteria for the EPA’s approval 2. Mitigation Plan Components proposal, which includes the EPA’s of future exceptional events The proposal also identified and review and a completeness demonstrations, would only apply to solicited comment on the following determination, but not the EPA’s those air agencies with areas subject to three plan components that could be ‘‘approval’’ of the plan content ‘‘historically documented’’ or ‘‘known recommended or required to implement (identified as Option 2 in the proposal), as discussed in the comments and seasonal’’ exceptional events. the mitigation principles found in CAA responses section below. We believe section 319(b)(3)(A): Public notification 1. Defining Historically Documented or this option maximizes the flexibility of and education; steps to identify, study Known Seasonal Events the air agency while providing for the and implement mitigating measures; protection of public health through the and provision for periodic revision of The proposal accepted comment on EPA’s review of the required plan the mitigation plan (to include public whether to define ‘‘historically content and through the required public review of plan elements). Given the documented’’ or ‘‘known seasonal’’ review process. We further believe that identified components, the proposal exceptional events to include events of Option 2, which required the EPA’s solicited comment on appropriate the same type and pollutant (e.g., high approval of mitigation plan content, wind dust/PM or wildfire/ozone) that timelines for submitting a plan. could have the unintended effect of recur on an annual or seasonal basis and 3. Options for Implementing Mitigation imposing additional administrative meet any of the following criteria: An Plans burden (e.g., multiple rounds of review and revision) without corresponding event for which an air agency has Because the 2007 Exceptional Events additional public health and air quality previously submitted exceptional events Rule did not tie the mitigation elements benefit. Other regulatory mechanisms demonstrations; an event that an air at 40 CFR 51.930 to the EPA’s review of are already available to address public agency has previously flagged for exceptional events demonstrations, we health and air quality, as needed (e.g., concurrence in AQS (regardless of proposed and solicited feedback on the SIP revisions or the regulatory action whether the air agency submitted a following options: Option 1 included that is the focus of an event of the type demonstration); or an event that has the EPA’s review for completeness but been the subject of public health alerts that is the subject of the mitigation plan not substantive approval or disapproval, and an exceptional events or published scientific journal articles. while Option 2 included the EPA’s demonstration). We are also adding a The proposal indicated that the EPA approval of the substance of the provision to clarify that, after an initial would not require an air agency to mitigation plan. The proposal noted that implementation period (as discussed in develop a mitigation plan for the first neither option would require a Section V.B.3 of this preamble), the EPA event of a given type (e.g., if an area is mitigation plan to be included in a SIP will not concur with an air agency’s prone to wildfires but has never or to be otherwise federally-enforceable. request to exclude data that have been experienced a high wind dust event, Regarding the submittal of a mitigation influenced by an event of the type that then it would not be expected to plan to the EPA, the EPA proposed that is the subject of a required mitigation develop a mitigation plan for its first air agencies with historically plan if an air agency has not submitted high wind dust event, but it would be documented or known seasonal the related required mitigation plan. expected to develop a mitigation plan exceptional events could submit the The EPA could, however, either for wildfires). A second event of a given mitigation plan to the EPA in advance nonconcur or defer action on a type within a 3-year period would of an event, or submit a mitigation plan demonstration for such event- subject the area to ‘‘having a history’’ along with an exceptional events influenced data. The EPA’s action demonstration. For both options, the and, therefore, needing a mitigation would likely depend on the timing of proposal explained that if the EPA plan.110 This option avoids plan the associated regulatory action. We are otherwise concurred with an development following a one-of-a-kind promulgating this regulatory language exceptional events demonstration for a occurrence.111 In defining ‘‘first’’ and after seeking comment on approaches type of event that is also the subject of ranging from retaining the existing ‘‘second’’ events, the EPA indicated that the mitigation plan, the EPA would only it could consider events that affect the ‘‘mitigation’’ rule requirements to concur with such a demonstration for promulgating new mitigation-related same AQCR, but not necessarily the the relevant event type if a mitigation rule components. same monitor.112 We also solicited plan passed the type of review comment on whether it would be described in the option (i.e., 1. Defining Historically Documented or appropriate to consider a season of completeness review for Option 1 or Known Seasonal Events multiple events of a common type as approval of content for Option 2). We are defining ‘‘historically one of three required seasons, so that a documented’’ or ‘‘known seasonal’’ B. Final Rule mitigation plan would be required only events to include events of the same when an event type persists across In keeping with the EPA’s mission to type and pollutant (e.g., high wind dust/ several years. protect public health and consistent PM or wildfire/ozone) that recur every with the principles included at CAA year, either seasonally or throughout the 110 A 3-year period is measured backwards from section 319(b)(3)(A), and after year. For purposes of identifying the the date of the most recent event. consideration of the public comments, bounds of ‘‘a particular area’’ for those 111 Because the form of the NAAQS varies by we are promulgating new mitigation- areas that are initially subject to the pollutant, it is possible that multiple events in a 3- related regulatory language at 40 CFR requirement to develop a mitigation year period may not cause a NAAQS violation. An air agency that identifies multiple events of the 51.930 requiring the development of plan (as discussed later in this section), same type (e.g., wildfire/ozone) in AQS, but mitigation plans in areas with we are using nonattainment area prepares and submits a demonstration for only one ‘‘historically documented’’ or ‘‘known boundaries or county boundaries for of these events, would trigger the proposed seasonal’’ exceptional events. As part of those areas not in a nonattainment area. requirement to develop a mitigation plan. 112 40 CFR part 81, subpart B, Designation of Air these promulgated requirements, we After these initial areas for which we Quality Control Regions, defines Air Quality have decided to follow the review have identified boundaries, the EPA Control Regions. option identified as Option 1 in the Regional office and the affected air
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agencies should consult regarding how when an event type persists across single season of events in year one, no to characterize ‘‘a particular location.’’ several years. For example, an area may events in year two, and multiple seasons Ultimately, the EPA will determine the not have previously experienced of events in year three. Using the bounds for ‘‘a particular location.’’ wildfires in the past 10 years, but then benchmark of three event-containing Regarding recurrence, we are using experiences multiple wildfires and seasons in 3 years would subject the the benchmark of three events in 3 multiple exceedances in a single area to ‘‘having a history’’ and, years, which applies regardless of an wildfire season. If these multiple therefore, needing a mitigation plan. area’s designation status with respect to wildfires affect the same general The requirements of this section will the NAAQS that could be the focus of geographic area and monitors in a apply regardless of the event/pollutant a potential demonstration for a recurring relatively short period of time (e.g., 2– combination and regardless of whether event and regardless of whether the 3 months), then they could be the event type is the focus of specific event type is the focus of specific considered a single event for purposes recurrence circumstances within this recurrence circumstances within this of developing a mitigation plan and rule for the ‘‘human activity unlikely to rule for the ‘‘human activity unlikely to would not trigger the requirement for a recur at a particular location or a natural recur at a particular location or a natural mitigation plan. Also, for purposes of event’’ criterion. We note, however, a event’’ criterion. We measure the 3-year counting a season towards the limit of demonstration for an event (or event period backwards from the date of the three seasons in 3 years, we mean a season) for which the EPA nonconcurs most recent event. Similar to our season containing one or more events (or previously nonconcurred) will not discussion of recurrence for the ‘‘human for which an air agency has previously count towards recurrence. activity unlikely to recur’’ criterion in submitted exceptional events Applying this framework of three Section IV.E.1 of this preamble, if there demonstrations or a season of events events (or three seasons with multiple have been two prior events of a similar that is the subject of an Initial events of a common type) in a 3-year type (i.e., a similar event type generating Notification of Potential Exceptional period, we identify in Table 6 those emissions of the same pollutant) within Event as discussed in Section IV.G.5 of areas that have experienced recurring a 3-year period in ‘‘a particular this preamble (regardless of whether the events during the timeframe from location,’’ the third event constitutes air agency submitted a January 1, 2013, through December 31, recurrence. While we are using the demonstration).113 Where an area 2015. Per the requirements set forth in benchmark of three events in a 3-year experiences multiple event seasons in a 40 CFR 51.930(b)(1)(ii), we are using period, for purposes of ‘‘historically given year (e.g., a spring season and a this action to provide written notice that documented’’ or ‘‘known seasonal’’ fall season of events), then each season the areas identified in Table 6 need to events, we will treat a season with will count towards the benchmark of submit mitigation plans according to the multiple events as one event such that three recurrences in 3 years. Under this requirements of the rule provisions in a mitigation plan will be required only scenario, an area could experience a 40 CFR 51.930(b).
TABLE 6—AREAS SUBJECT TO THE MITIGATION REQUIREMENTS IN 40 CFR 51.930(B) a
Pollutant AQS AQS Flag description State Nonattainment area, county or city boundary Flag b
Ozone ...... RO Stratospheric Ozone Intrusion.... CO Denver-Boulder-Greeley-Ft. Collins-Loveland, CO Ozone Non- attainment Area Ozone ...... RT Wildfire-U. S...... CO Denver-Boulder-Greeley-Ft. Collins-Loveland, CO Ozone Non- attainment Area Ozone ...... RT Wildfire-U. S...... NV Clark County PM10 ...... RJ High Winds ...... AZ Phoenix, AZ PM10 Nonattainment Area PM10 ...... RJ High Winds ...... AZ Rillito, AZ PM10 Nonattainment Area PM10 ...... RJ High Winds ...... AZ West Pinal, AZ PM10 Nonattainment Area PM10 ...... RJ High Winds ...... AZ Yuma, AZ PM10 Nonattainment Area PM10 ...... RJ High Winds ...... AZ Gila River Indian Community PM10 ...... RJ High Winds ...... AZ Salt River Pima-Maricopa Indian Community PM10 ...... RJ High Winds ...... CA Coso Junction, CA PM10 Nonattainment Area PM10 ...... RJ High Winds ...... CA Imperial Valley, CA PM10 Nonattainment Area PM10 ...... RJ High Winds ...... CA Coachella Valley, CA PM10 Nonattainment Area PM10 ...... RJ High Winds ...... CA San Joaquin Valley PM10 Nonattainment Area PM10 ...... RJ High Winds ...... CA Los Angeles South Coast Air Basin PM10 Nonattainment Area PM10 ...... RJ High Winds ...... CO Alamosa County PM10 ...... RJ High Winds ...... CO Prowers County PM10 ...... RJ High Winds ...... NM Anthony, NM PM10 Nonattainment Area PM10 ...... RJ High Winds ...... NM Luna County PM10 ...... RJ High Winds ...... NV Nye County PM10 ...... RJ High Winds ...... NV Clark County PM10 Nonattainment Area PM10 ...... RJ High Winds ...... WA Wallula PM10 Maintenance Area PM2.5 ...... RA African Dust ...... TX Harris County PM2.5 ...... RJ High Winds ...... TX El Paso County PM2.5 ...... RS Volcanic Eruptions ...... HI Hawaii County PM2.5 ...... RT Wildfire-U. S...... CA Nevada County PM2.5 ...... RT Wildfire-U. S...... CA Sacramento, CA PM2.5 Nonattainment Area
113 Because the Initial Notification of Potential areas, we are defining recurrence as three events or for which an air agency has previously flagged Exceptional Event is a new requirement in this event seasons for which an air agency submitted a events for concurrence in AQS (regardless of action, we cannot use it to define recurrence for demonstration within a 3-year period or three whether the air agency submitted a demonstration). those areas that are initially subject to the events or event seasons in a 3-year period that requirement to develop a mitigation plan. For these resulted in a NAAQS exceedance(s) or violation(s)
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TABLE 6—AREAS SUBJECT TO THE MITIGATION REQUIREMENTS IN 40 CFR 51.930(B) a—Continued
Pollutant AQS AQS Flag description State Nonattainment area, county or city boundary Flag b
PM2.5 ...... RT Wildfire-U. S...... MT Missoula County PM2.5 ...... RT Wildfire-U. S...... MT Ravalli County PM2.5 ...... RT Wildfire-U. S...... NV Carson City (City) PM2.5 ...... RT Wildfire-U. S...... NV Douglas County PM2.5 ...... RT Wildfire-U. S...... NV Washoe County SO2 ...... RS Volcanic Eruptions ...... HI Hawaii County a The areas noted in this table were identified using monitoring data in AQS for the January 1, 2013, through December 31, 2015, timeframe. The EPA downloaded data with request exclusion flags in May 2016, matched these data to exceedance days and then identified those areas with three seasons of events within a 3-year period. b The complete list of AQS qualifier codes and descriptions is available at https://aqs.epa.gov/aqsweb/documents/codetables/qualifiers.html.
An area that appears in Table 6 for affected communities. Air agencies are event-related sources as well as non- multiple NAAQS and/or event types required to include in their mitigation event related sources. For example, could have a single mitigation plan, plans steps to activate public these measures might include provided the plan components and notification and education systems continuously operating control actions address the multiple NAAQS whenever air quality concentrations measures during an extreme event for and events. For example, a few areas exceed or are expected to exceed an identified sources that normally operate have recurring high wind dust events applicable short-term NAAQS.114 If these same controls on an intermittent for both PM10 and PM2.5. These areas possible, air agencies would notify the basis. It could also involve including could develop a single high wind dust public of the actual or anticipated event work practices (e.g., water spray for dust mitigation plan that addresses both at least 48 hours in advance of the event suppression) or contingent limits during PM10 and PM2.5. using methods appropriate to the extreme events on emissions from non- Within 2 years of the effective date of community being served. (The EPA event related sources that, under non- this action, air agencies responsible for recognizes that for some event types, a event periods, have no or less stringent ensuring air quality for the identified 48-hour advance notice may not be emissions limits or work practices. areas shall submit mitigation plans to possible.) Outreach mechanisms could (ii) Methods to minimize public the applicable EPA Regional include: Web site alerts, National exposure to high concentrations of Administrator. After this 2-year Weather Service alerts, telephone or text identified pollutants. timeframe, the EPA will not concur with bulletins, television or radio campaigns (iii) Processes to collect and maintain an air agency’s request to exclude data or other messaging campaigns. Public data pertinent to the event (e.g., to that have been influenced by an event notification and education programs identify the data to be collected, the of the type that is the subject of a should include some or all of the party responsible for collecting and required mitigation plan if an air agency following actions to support the maintaining the data and when, how has not submitted the related required outreach system: Adoption of methods and to whom the data will be reported). mitigation plan. The EPA could, for forecasting/detection, consultation (iv) Mechanisms to consult with other however, either nonconcur or defer with appropriate health department air quality managers in the affected area action on a demonstration for such personnel regarding issuing health regarding the appropriate responses to event-influenced data. The EPA’s action advisories and suggested actions for abate and minimize impacts. would likely depend on the timing of exposure minimization for sensitive Consultation could include the associated regulatory action. As populations (e.g., remain indoors, avoid collaboration between potentially other areas become subject to the vigorous outdoor activity, avoid affected local, state, tribal and federal mitigation requirements identified in exposure to tobacco smoke and other air quality managers and/or emergency this action, the EPA will notify such respiratory irritants and, in extreme response personnel. areas in writing of the need for a cases, evacuation or public sheltering c. Provisions for review and mitigation plan. We discuss the timing procedures). evaluation of the mitigation plan and its associated with implementing a b. Steps to identify, study and implementation and effectiveness by the mitigation plan in more detail in implement mitigating measures, air agency and all interested Section V.B.3 of this preamble. including approaches to address each of stakeholders (e.g., public and private land owners/managers, air quality, 2. Mitigation Plan Components the following: (i) Mandatory or voluntary measures agriculture and forestry agencies, the After considering the public to abate or minimize contributing public). During the initial development comments we received, we are controllable sources of identified of the mitigation plan, this public finalizing the following three required pollutants that are within the review process would follow a process plan components to help implement the jurisdiction of the affected air agency. similar to that required for the public mitigation principles found in CAA An air agency is encouraged to consider review of an exceptional events section 319(b)(3)(A). Unless otherwise full-time or contingent controls on demonstration. That is, to solicit specified, each mitigation plan should feedback from interested parties, an air address actions that would be taken 114 By short-term, we mean NAAQS with agency subject to the mitigation within an air agency’s own jurisdiction averaging times that are 24-hours or less. We do not requirements would conduct a public for events that happen within its own believe it is appropriate to notify the public when comment process on a draft mitigation jurisdiction or within the jurisdiction of the pollutant concentrations exceed or violate a 3- plan for a minimum of 30 days. The air month rolling average or an annual average as these another air agency. violations reflect cumulative effects and in many agency would then submit the public a. Public notification to and education cases the cause of the exceedance or violation is comments received to the EPA with the programs for affected or potentially long past. air agency’s submission of its final
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mitigation plan. With this submission continue to result in elevated pollutant Commenters asked that we allow air and for each public comment received, concentrations above the relevant agencies 2 years from the date that they the air agency would explain the NAAQS, thus showing that the become subject to any mitigation plan changes made to the mitigation plan or combination of the existing SIP and the requirements to develop their mitigation explain why the air agency did not existing mitigation plan does not plan. We note that developing an make any changes to the mitigation effectively safeguard public health, the effective mitigation plan that includes plan. We believe that public feedback air agency should consider whether to the required elements may require input will inherently strengthen the strengthen the mitigation plan. from and coordination with numerous mitigation plans and focus the air In adopting these revisions, it is stakeholders, including, but not limited agency action in the areas most needing possible that all affected air agencies to, air agencies, public health officials, the attention. Air agencies and the may not need to prepare new plans. If local governments, representatives affected public are better suited than the an air agency has developed and serving potentially affected minority EPA to determine effective mitigation implemented a contingency plan under and low-income populations, if measures. 40 CFR part 51, subpart H, Prevention applicable, and the media. Additionally, The EPA expects that once an area of Air Pollution Emergency Episodes, air agencies must make the mitigation becomes subject to these mitigation that meets the requirements of 40 CFR plan available for public comment, and requirements, it will always have a 51.152, and that includes provisions for respond and revise the mitigation plan mitigation plan in effect, although the events that could be considered in response to those comments, as plan would be periodically revised and ‘‘exceptional events’’ under the appropriate. Upon consideration, we evaluated for effectiveness. The process provisions in 40 CFR 50.14, then the believe 2 years is a reasonable amount by which the air agency accomplishes subpart H contingency plan would of time to ensure that air agencies have this periodic review and evaluation of likely satisfy the mitigation adequate time to prepare comprehensive plan effectiveness after the initial requirements. If the identified basic mitigation plans that respond to the development of the plan must also be elements are included and addressed, public health threat presented by identified in the plan. The review and including the element for public historically documented or known evaluation would necessarily include a comment, then other types of existing seasonal events. Therefore, we are public process to solicit feedback from mitigation or contingency plans may incorporating the commenters’ interested stakeholders (e.g., public and satisfy the mitigation plan requirements. suggestion into this preamble and into private land owners/managers, air For example, if an area has developed quality, agriculture and forestry a natural events action plan or a high the final regulatory language. Thus, air agencies, the public). Periodic review wind action plan covering high wind agencies with historically documented could follow a process similar to the one dust events, this plan likely would or known seasonal exceptional events identified for initial plan development. satisfy mitigation elements for high that we are formally identifying in this Although the air agency can determine wind dust events. Smoke management action as being subject to the the review timeframe for a mitigation programs and/or forest management requirements of this section will have 2 plan, we offer the following guidance. plans might also satisfy the mitigation years from the effective date of this For example, within this section of a elements for prescribed fires and action to submit a mitigation plan to mitigation plan, the air agency could wildfires. Most air agencies likely have their applicable EPA Regional office. specify review and revision, if sufficient, established processes that The EPA will process events of the type appropriate, and recertification of the meet the public notification and and pollutant that are the subject of the mitigation plan every 3 years. The air education element, and which can be mitigation plan that occur during this 2- agency could also identify that review, easily adapted or modified to meet the year period following the general revision, and recertification would mitigation elements proposed in this provisions outlined in 40 CFR 50.14. occur after a season of implementing the action. During this interim period, the EPA’s plan, which could result in annual concurrence on demonstrations will not 3. Implementing Mitigation Plans review if events continued to recur with be contingent upon the affected air such a frequency. Or, if the subject The EPA is finalizing implementation agency’s submittal of a mitigation plan event did not recur for 5 years, then provisions that provide for the EPA’s because air agencies should have plan reassessment would follow a review and verification of the mitigation sufficient time to develop their newly longer timeframe. plans’ inclusion of the required required mitigation plans. It is not Because evaluating the effectiveness elements and to ensure that the reasonable to delay acting on of a mitigation plan includes actions development of the mitigation plan demonstration submittals while air and responses from a variety of included a public comment process. We agencies prepare these plans. However, interested stakeholders, the air agency would not formally review the for events of the type subject to the should consider submitting a summary substance of the plan in the sense of mitigation plan requirement that occur and response to the comments received approving the details of the specific after this 2-year window, the EPA’s during the public plan review process to measures and commitments in the plan. action on demonstrations will be the EPA along with the recertification We will, however, review each contingent on the submittal of a statement and/or revised mitigation submitted plan and verify that it mitigation plan that meets the plan. While we are requiring an air includes the required elements. Within requirements of this action. As the EPA agency to submit any received public 60 days of receipt of such a plan, the identifies other areas subject to the comments to the EPA after the air EPA plans to notify the submitting air mitigation requirements in this final agency initially develops a mitigation agency that we have reviewed the rule, we provide such notice to the plan, we are not requiring that the air mitigation plan and verified that it affected air agencies. Notified air agency summarize and submit public contains the required elements. agencies will then have a 2-year period comments for subsequent reviews and Mitigation plans developed under 40 to develop a mitigation plan. During this plan reassessments. CFR 51.930 are not required to be period of development, the EPA’s If the historically documented or included in a SIP or to be otherwise concurrence on demonstrations for known seasonal exceptional events federally-enforceable. events of the type and pollutant that are
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the subject of the mitigation plan will VI. Environmental Justice to OMB recommendations have been not be contingent upon the affected air Considerations documented in the docket. agency’s submittal of a mitigation plan. The Exceptional Events Rule provides B. Paperwork Reduction Act (PRA) All areas subject to these mitigation the criteria by which state, local and This action does not impose any new plan requirements can submit the tribal air agencies identify air quality information collection burden under the mitigation plan to the EPA in advance data they believe have been influenced PRA. OMB has previously approved the of an event, or submit a mitigation plan by exceptional events, which by information collection activities for along with an exceptional events statutory definition are not reasonably ambient air monitoring data and other demonstration. The EPA expects that controllable or preventable. Because it is supporting measurements reporting and mitigation plans developed according to not reasonable to control or prevent recordkeeping activities associated with this section will assist agencies in these events, they can affect all the 40 CFR part 58 Ambient Air Quality satisfying the not reasonably downwind populations including Surveillance rule and has assigned OMB controllable or preventable criterion minority and low-income populations. control number 2060–0084. The discussed in Section IV.E.2 of this For this reason, in adding CAA section information being requested under these preamble. 319(b), Congress identified as a guiding proposed rule revisions is consistent principle in developing regulations, C. Comments and Responses with current requirements related to ‘‘the principle that protection of public information needed to verify the While the majority of commenters health is the highest priority.’’ The authenticity of monitoring data provided feedback indicating their Exceptional Events Rule at 40 CFR 50.14 submitted to the EPA’s AQS database, preference to retain the existing requires air agencies to seek public and to justify exclusion of data that have mitigation requirements in 40 CFR comment on prepared exceptional been flagged as being affected by 51.930 without revision, several other events demonstrations prior to exceptional events. commenters supported the development submitting them to the reviewing EPA C. Regulatory Flexibility Act (RFA) of mitigation plans either for areas with Regional office. The public can also ‘‘historically documented’’ or ‘‘known comment on rulemakings that include I certify that this action will not have seasonal’’ events or all events. Of those decisions related to the exclusion of a significant economic impact on a commenters providing feedback on the event-influenced data. The mitigation of substantial number of small entities EPA’s review of mitigation plans, many exceptional events language at 40 CFR under the RFA. This action will not commenters supported the ‘‘review’’ 51.930 also requires that air agencies impose any requirements on small versus ‘‘approval’’ option. As previously provide public notification and entities. Instead, the rule revisions noted, we have implemented the review education programs related to events. provide the criteria and increase the option, which we proposed as Option 1. To protect all people and efficiency of the process by which state, We believe that Option 1 maximizes the communities, notably minority and low- local and tribal air agencies identify air flexibility of the air agency while income populations, air agencies should quality data they believe have been providing for the protection of public ensure that notifications and education influenced by an exceptional event. The health through the EPA’s review to programs are communicated using the rule revisions also clarify those actions ensure inclusion of required plan language (e.g., English and Spanish) and that state, local and tribal air agencies content and through the required public media (e.g., radio and postings in local should take to protect public health review process. Also consistent with community centers) best suited to the during and following an exceptional commenter feedback, we have identified target audience(s). Furthermore, this event. Because affected air agencies required program components, but have action requires states to develop would have discretion to implement not specified the required content. mitigation plans for recurring event controls on sources that may need to be Rather, it is appropriate to allow air types. Additionally, these revisions to regulated due to anthropogenic agencies to develop mechanisms that the Exceptional Events Rule are being contribution in the area determined to are tailored to their unique situations made as part of a public notice-and- be influenced by an exceptional event, and events. comment rulemaking effort, which the EPA cannot predict the indirect included a public hearing. These effect of the rule on sources that may be Also regarding specific opportunities for public input in the small entities. recommendations on plan content, one rulemaking process, and the resulting commenter did not support public D. Unfunded Mandates Reform Act requirements regarding public input and notification for exceedances of an (UMRA) education ensure that all those residing, annual standard. The EPA agrees with working, attending school or otherwise This action does not contain an the commenter that public notification present in areas affected by exceptional unfunded mandate of $100 million or is not necessary when the pollutant events, regardless of minority and more as described in UMRA, 2 U.S.C. concentrations exceed or violate a 3- economic status, are protected. 1531–1538, and does not significantly or month rolling average or an annual uniquely affect small governments. The average as these exceedances/violations VII. Statutory and Executive Order action imposes no enforceable duty on reflect cumulative effects and in many Reviews any state, local or tribal governments or cases the cause of the exceedance or A. Executive Order 12866: Regulatory the private sector. violation is long past. We have clarified Planning and Review and Executive this point by adding regulatory language E. Executive Order 13132: Federalism Order 13563: Improving Regulation and requiring public notification for This action does not have federalism Regulatory Review exceedances or anticipated exceedances implications. The EPA believes, of short-term NAAQS. We also added This action is a significant regulatory however, that this action may be of regulatory text and a footnote in this action that was submitted to the Office significant interest to states and to local preamble to define ‘‘short-term’’ as a of Management and Budget (OMB) for air quality agencies to whom a state has NAAQS with an averaging time that is review because it raises novel policy delegated relevant responsibilities for less than or equal to 24-hours. issues. Any changes made in response air quality management. Consistent with
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the EPA’s policy to promote because it does not concern an K. Congressional Review Act (CRA) communications between the EPA and environmental health risk or safety risk. This action is subject to the CRA, and state and local governments, the EPA the EPA will submit a rule report to consulted with representatives of state H. Executive Order 13211: Actions Concerning Regulations That each House of the Congress and to the and local governments early in the Comptroller General of the United process of developing this action to Significantly Affect Energy Supply, Distribution or Use States. This action is not a ‘‘major rule’’ permit them to have meaningful and as defined by 5 U.S.C. 804(2). timely input into its development. A This action is not a ‘‘significant summary of the concerns raised during Page 225 of 247—Treatment of Data energy action’’ because it is not likely to that consultation is provided in Section Influenced by Exceptional Events IV of this preamble. have a significant adverse effect on the supply, distribution or use of energy. VIII. Statutory Authority F. Executive Order 13175: Consultation The purpose of this proposed rule is to The statutory authority for this action and Coordination with Indian Tribal provide the criteria, and increase the is provided by 42 U.S.C. 7401, et seq. Governments efficiency of the process, by which state, List of Subjects This action does not have tribal local and tribal air agencies may implications as specified in Executive identify air quality data they believe 40 CFR Part 50 Order 13175. It would not have a have been influenced by an exceptional Environmental protection, Air substantial direct effect on one or more event. The EPA does not expect these pollution control, National parks, Indian tribes. Furthermore, these activities to affect energy suppliers, Wilderness areas. regulation revisions do not affect the distributors or users. relationship or distribution of power 40 CFR Part 51 and responsibilities between the federal I. National Technology Transfer and Environmental protection, Air government and Indian tribes. The CAA Advancement Act pollution control, National parks, and the TAR establish the relationship This rulemaking does not involve Wilderness areas. of the federal government and tribes in Dated: September 16, 2016. characterizing air quality and technical standards. Gina McCarthy, developing plans to attain the NAAQS, J. Executive Order 12898: Federal and these revisions to the regulations do Actions To Address Environmental Administrator. nothing to modify that relationship. Justice in Minority Populations and For the reasons set forth in the Thus, Executive Order 13175 does not Low-Income Populations preamble, parts 50 and 51, title 40, apply to this action. chapter I of the Code of Federal Although Executive Order 13175 does The EPA believes that this action does Regulations are amended as follows: not apply to this action, the EPA held not have disproportionately high and public meetings attended by tribal adverse human health or environmental PART 50—NATIONAL PRIMARY AND representatives and separate meetings effects on minority populations, low- SECONDARY AMBIENT AIR QUALITY with tribal representatives to discuss the income populations and/or indigenous STANDARDS revisions proposed in this action. The peoples, as specified in Executive Order ■ 1. The authority citation for part 50 EPA also provided an opportunity for 12898 (59 FR 7629, February 16, 1994). continues to read as follows: all interested parties to provide oral or The documentation for this decision is written comments on potential concepts contained in the Section VI of the Authority: 42 U.S.C. 7401, et seq. for the EPA to address during the rule preamble titled ‘‘Environmental Justice ■ 2. Amend § 50.1 by: revision process. Summaries of these Considerations.’’ This action provides ■ a. Revising paragraphs (j) and (k). meetings are included in the docket for the criteria and increases the efficiency ■ b. Adding paragraphs (m), (n), (o), (p), this rule. The EPA received comments of the process by which state, local and (q) and (r). on this action from multiple tribal tribal air agencies identify air quality The revisions and additions read as organizations, requesting clarification data they believe have been influenced follows: on how this action includes and by exceptional events, which, by § 50.1 Definitions. protects federal tribal communities. The statutory definition, are not reasonably Exceptional Events Rule addresses these * * * * * controllable or preventable. These (j) Exceptional event means an concerns through the public comment regulatory provisions do, however, process for both the rule revision and event(s) and its resulting emissions that provide information concerning actions the exceptional events demonstrations, affect air quality in such a way that that state, local or tribal air agencies outreach efforts, and notification there exists a clear causal relationship might take to uniformly protect public requirements. between the specific event(s) and the health once the EPA has concurred with monitored exceedance(s) or violation(s), G. Executive Order 13045: Protection of an air agency’s request to exclude data is not reasonably controllable or Children From Environmental Health & influenced by an exceptional event. The preventable, is an event(s) caused by Safety Risks mitigation component of the rule could human activity that is unlikely to recur The EPA interprets Executive Order ultimately provide additional protection at a particular location or a natural 13045 as applying only to those for minority, low income and other event(s), and is determined by the regulatory actions that concern populations located in areas affected by Administrator in accordance with 40 environmental health or safety risks that recurring exceptional events. Therefore, CFR 50.14 to be an exceptional event. It the EPA has reason to believe may the EPA finds that this action would not does not include air pollution relating to disproportionately affect children, per adversely affect the health or safety of source noncompliance. Stagnation of air the definition of ‘‘covered regulatory minority or low-income populations, masses and meteorological inversions action’’ in section 2–202 of the and that it is designed to protect and do not directly cause pollutant Executive Order. This action is not enhance the health and safety of these emissions and are not exceptional subject to Executive Order 13045 and other populations. events. Meteorological events involving
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high temperatures or lack of types of regulatory determinations by expressed as requirements applying to a precipitation (i.e., severe, extreme or the Administrator: State shall, except as noted, be exceptional drought) also do not (A) An action to designate an area, requirements applying to the federal directly cause pollutant emissions and pursuant to Clean Air Act section land manager or other federal agency. are not considered exceptional events. 107(d)(1), or redesignate an area, (C) Provided all provisions in this However, conditions involving high pursuant to Clean Air Act section section are met, the Administrator shall temperatures or lack of precipitation 107(d)(3), for a particular national allow a State to submit demonstrations may promote occurrences of particular ambient air quality standard; for any regulatory monitor within its types of exceptional events, such as (B) The assignment or re-assignment jurisdictional bounds, including those wildfires or high wind events, which do of a classification category to a operated by federal land managers, directly cause emissions. nonattainment area where such other federal agencies and delegated (k) Natural event means an event and classification is based on a comparison local agencies. its resulting emissions, which may recur of pollutant design values, calculated (D) Where multiple agencies within a at the same location, in which human according to the specific data handling state submit demonstrations for events activity plays little or no direct causal procedures in 40 CFR part 50 for each that meet the requirements of the role. For purposes of the definition of a national ambient air quality standard, to Exceptional Events Rule, a State natural event, anthropogenic sources the level of the relevant national submittal shall have primacy for any that are reasonably controlled shall be ambient air quality standard; regulatory monitor within its considered to not play a direct role in (C) A determination regarding jurisdictional bounds. causing emissions. whether a nonattainment area has (2) A demonstration to justify data attained the level of the appropriate exclusion may include any reliable and * * * * * national ambient air quality standard by accurate data, but must specifically (m) Prescribed fire is any fire its specified deadline; address the elements in paragraphs intentionally ignited by management (D) A determination that an area has (c)(3)(iv) and (v) of this section. actions in accordance with applicable data for the specific NAAQS, which (b) Determinations by the laws, policies, and regulations to meet qualify the area for an attainment date Administrator—(1) Generally. The specific land or resource management extension under the CAA provisions for Administrator shall exclude data from objectives. the applicable pollutant; use in determinations of exceedances (n) Wildfire is any fire started by an (E) A determination under Clean Air and violations identified in paragraph unplanned ignition caused by lightning; Act section 110(k)(5), if based on an area (a)(1)(i) of this section where a State volcanoes; other acts of nature; violating a national ambient air quality demonstrates to the Administrator’s unauthorized activity; or accidental, standard, that the state implementation satisfaction that an exceptional event human-caused actions, or a prescribed plan is inadequate under the caused a specific air pollution fire that has developed into a wildfire. requirements of Clean Air Act section concentration at a particular air quality A wildfire that predominantly occurs on 110; and monitoring location and otherwise wildland is a natural event. (F) Other actions on a case-by-case satisfies the requirements of this (o) Wildland means an area in which basis as determined by the section. human activity and development are Administrator. (2) Fireworks displays. The essentially non-existent, except for (ii) A State, federal land manager or Administrator shall exclude data from roads, railroads, power lines, and other federal agency may request the use in determinations of exceedances similar transportation facilities. Administrator to exclude data showing and violations where a State Structures, if any, are widely scattered. exceedances or violations of any demonstrates to the Administrator’s (p) High wind dust event is an event national ambient air quality standard satisfaction that emissions from that includes the high-speed wind and that are directly due to an exceptional fireworks displays caused a specific air the dust that the wind entrains and event from use in determinations pollution concentration in excess of one transports to a monitoring site. identified in paragraph (a)(1)(i) of this or more national ambient air quality (q) High wind threshold is the section by demonstrating to the standards at a particular air quality minimum wind speed capable of Administrator’s satisfaction that such monitoring location and otherwise causing particulate matter emissions event caused a specific air pollution satisfies the requirements of this from natural undisturbed lands in the concentration at a particular air quality section. Such data will be treated in the area affected by a high wind dust event. monitoring location. same manner as exceptional events (r) Federal land manager means, (A) For a federal land manager or under this rule, provided a State consistent with the definition in 40 CFR other federal agency to be eligible to demonstrates that such use of fireworks 51.301, the Secretary of the department initiate such a request for data is significantly integral to traditional with authority over the Federal Class I exclusion, the federal land manager or national, ethnic, or other cultural events area (or the Secretary’s designee) or, other federal agency must: including, but not limited to, July with respect to Roosevelt-Campobello (1) Either operate a regulatory monitor Fourth celebrations that satisfy the International Park, the Chairman of the that has been affected by an exceptional requirements of this section. Roosevelt-Campobello International event or manage land on which an (3) Prescribed fires. (i) The Park Commission. exceptional event occurred that Administrator shall exclude data from ■ 3. Revise § 50.14 to read as follows: influenced a monitored concentration at use in determinations of exceedances a regulatory monitor; and and violations, where a State § 50.14 Treatment of air quality monitoring (2) Initiate such a request only after demonstrates to the Administrator’s data influenced by exceptional events. the State in which the affected monitor satisfaction that emissions from (a) Requirements—(1) Scope. (i) This is located concurs with the federal land prescribed fires caused a specific air section applies to the treatment of data manager’s or other federal agency’s pollution concentration in excess of one showing exceedances or violations of submittal. or more national ambient air quality any national ambient air quality (B) With regard to such a request, all standards at a particular air quality standard for purposes of the following provisions in this section that are monitoring location and otherwise
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satisfies the requirements of this management practices identified in (C) With respect to the requirement section. Table 1 to § 50.14, then: that a prescribed fire be not reasonably (ii) In addressing the requirements set (1) The State, federal land managers, preventable, the State may rely upon forth in paragraph (c)(3)(iv)(D) of this and other entities as appropriate, must and reference a multi-year land or section regarding the not reasonably periodically collaborate with burn resource management plan for a controllable or preventable criterion: managers operating within the wildland area with a stated objective to (A) With respect to the requirement jurisdiction of the State to discuss and establish, restore and/or maintain a that a prescribed fire be not reasonably document the process by which air sustainable and resilient wildland controllable, the State must either agencies and land managers will work ecosystem and/or to preserve together to protect public health and certify to the Administrator that it has endangered or threatened species manage air quality impacts during the adopted and is implementing a smoke through a program of prescribed fire conduct of prescribed fires on wildland. management program or the State must provided that the Administrator Such discussions must include outreach demonstrate that the burn manager and education regarding general determines that there is no compelling employed appropriate basic smoke expectations for the selection and evidence to the contrary in the record management practices identified in application of appropriate basic smoke and the use of prescribed fire in the area Table 1 to § 50.14. Where a burn management practices and goals for has not exceeded the frequency manager employs appropriate basic advancing strategies and increasing indicated in that plan. smoke management practices, the State adoption and communication of the (iii) Provided the Administrator may rely on a statement or other benefits of appropriate basic smoke determines that there is no compelling documentation provided by the burn management practices; evidence to the contrary in the record, manager that he or she employed those (2) The State, federal land managers practices. If an exceedance or violation in addressing the requirements set forth and burn managers shall have an initial in paragraph (c)(3)(iv)(E) of this section of a NAAQS occurs when a prescribed implementation period, defined as being fire is employing an appropriate basic regarding the human activity unlikely to 2 years from September 30, 2016, to recur at a particular location criterion smoke management practices approach, implement the collaboration and the State and the burn manager must for demonstrations involving prescribed outreach effort identified in paragraph fires on wildland, the State must undertake a review of the subject fire, (b)(3)(ii)(B)(1) of this section; and including a review of the basic smoke (3) Except as provided in paragraph describe the actual frequency with management practices applied during (b)(3)(ii)(B)(2) of this section, the which a burn was conducted, but may the subject fire to ensure the protection Administrator shall not place a rely upon and reference an assessment of air quality and public health and concurrence flag in the appropriate field of the natural fire return interval or the progress towards restoring and/or for the data record in the AQS database, prescribed fire frequency needed to maintaining a sustainable and resilient as specified in paragraph (c)(2)(ii) of this establish, restore and/or maintain a wildland ecosystem. If the prescribed section, if the data are associated with sustainable and resilient wildland fire becomes the subject of an a prescribed fire on wildland unless the ecosystem contained in a multi-year exceptional events demonstration, requirements of paragraph land or resource management plan with documentation of the post-burn review (b)(3)(ii)(B)(1) of this section have been a stated objective to establish, restore must accompany the demonstration. met and associated documentation and/or maintain a sustainable and (B) If the State anticipates satisfying accompanies any applicable exceptional resilient wildland ecosystem and/or to the requirements of paragraph events demonstration. The preserve endangered or threatened (c)(3)(iv)(D) of this section by employing Administrator may nonconcur or defer species through a program of prescribed the appropriate basic smoke action on such a demonstration. fire.
TABLE 1 TO § 50.14—SUMMARY OF BASIC SMOKE MANAGEMENT PRACTICES, BENEFIT ACHIEVED WITH THE BSMP, AND WHEN IT IS APPLIEDa
b When the BSMP is applied— Basic Smoke Management Practice Benefit achieved with the BSMP before/during/after the burn
Evaluate Smoke Dispersion Conditions ..... Minimize smoke impacts ...... Before, During, After. Monitor Effects on Air Quality ...... Be aware of where the smoke is going and degree it impacts air Before, During, After. quality. Record-Keeping/Maintain a Burn/Smoke Retain information about the weather, burn and smoke. If air qual- Before, During, After. Journal. ity problems occur, documentation helps analyze and address air regulatory issues.. Communication—Public Notification ...... Notify neighbors and those potentially impacted by smoke, espe- Before, During. cially sensitive receptors. Consider Emission Reduction Techniques Reducing emissions through mechanisms such as reducing fuel Before, During, After. loading can reduce downwind impacts. Share the Airshed—Coordination of Area Coordinate multiple burns in the area to manage exposure of the Before, During, After. Burning. public to smoke. a The EPA believes that elements of these BSMP could also be practical and beneficial to apply to wildfires for areas likely to experience re- curring wildfires. b The listing of BSMP in this table is not intended to be all-inclusive. Not all BSMP are appropriate for all burns. Goals for applicability should retain flexibility to allow for onsite variation and site-specific conditions that can be variable on the day of the burn. Burn managers can consider other appropriate BSMP as they become available due to technological advancement or programmatic refinement.
(4) Wildfires. The Administrator shall of exceedances and violations where a Administrator’s satisfaction that exclude data from use in determinations State demonstrates to the emissions from wildfires caused a
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specific air pollution concentration in (vi) For large-scale and high-energy to a 24-hour NAAQS, a State’s excess of one or more national ambient high wind dust events, the comparison of a 24-hour concentration air quality standard at a particular air Administrator will generally consider a of any national ambient air quality quality monitoring location and demonstration documenting the nature standard pollutant to the level of a otherwise satisfies the requirements of and extent of the event to be sufficient national ambient air quality standard for this section. Provided the Administrator with respect to the not reasonably the same pollutant with a longer determines that there is no compelling controllable criterion of paragraph averaging period. The Administrator evidence to the contrary in the record, (c)(3)(iv)(D) of this section provided the shall also accept as part of a the Administrator will determine every State provides evidence showing that demonstration for the clear causal wildfire occurring predominantly on the event satisfies the following: relationship in paragraph (c)(3)(iv)(B) of wildland to have met the requirements (A) The event is associated with a this section with respect to a NAAQS identified in paragraph (c)(3)(iv)(D) of dust storm and is the focus of a Dust with a longer averaging period, a State’s this section regarding the not reasonably Storm Warning. comparison of a 24-hour concentration controllable or preventable criterion. (B) The event has sustained winds of any national ambient air quality (5) High wind dust events. (i) The that are greater than or equal to 40 miles standard pollutant to the level of the Administrator shall exclude data from per hour. national ambient air quality standard for use in determinations of exceedances (C) The event has reduced visibility the same pollutant with a longer and violations, where a State equal to or less than 0.5 miles. averaging period, without the State demonstrates to the Administrator’s (6) Stratospheric Intrusions. Where a having to demonstrate that the event satisfaction that emissions from a high State demonstrates to the caused the annual average concentration wind dust event caused a specific air Administrator’s satisfaction that of the pollutant to exceed the level of pollution concentration in excess of one emissions from stratospheric intrusions the NAAQS with the longer averaging or more national ambient air quality caused a specific air pollution period. standards at a particular air quality concentration in excess of one or more (iii) Where a State operates a monitoring location and otherwise national ambient air quality standard at continuous analyzer that has been satisfies the requirements of this section a particular air quality monitoring designated as a Federal Equivalent provided that such emissions are from location and otherwise satisfies the Method monitor as defined in 40 CFR high wind dust events. requirements of this section, the 50.1(g) that complies with the (ii) The Administrator will consider Administrator will determine monitoring requirements of 40 CFR part high wind dust events to be natural stratospheric intrusions to have met the 58, Appendix C, and the State believes events in cases where windblown dust requirements identified in paragraph that collected data have been influenced is entirely from natural undisturbed (c)(3)(iv)(D) of this section regarding the by an event, in following the process lands in the area or where all not reasonably controllable or outlined in paragraph (c)(2) of this anthropogenic sources are reasonably preventable criterion and shall exclude section, the State shall create an initial controlled as determined in accordance data from use in determinations of event description and flag the associated with paragraph (b)(8) of this section. exceedances and violations. event-influenced data that have been (iii) The Administrator will accept a (7) Determinations with respect to submitted to the AQS database for the high wind threshold of a sustained wind event aggregation, multiple national affected monitor. Where a State of 25 mph for areas in the States of ambient air quality standards for the demonstrates to the Administrator’s Arizona, California, Colorado, Kansas, same pollutant, and exclusion of 24- satisfaction that such data satisfy the Nebraska, Nevada, New Mexico, North hour values for particulate matter. requirements in paragraph (c)(3)(iv)(B) Dakota, Oklahoma, South Dakota, Texas, (i) Where a State demonstrates to the of this section regarding the clear causal Utah, and Wyoming provided this value Administrator’s satisfaction that for relationship criterion and otherwise is not contradicted by evidence in the national ambient air quality standards satisfy the requirements of this section, record at the time the State submits a with averaging or cumulative periods the Administrator shall agree to exclude demonstration. In lieu of this threshold, less than or equal to 24 hours the all data within the affected calendar States can identify and use an aggregate effect of events occurring on day(s). Administrator-approved alternate area- the same day has caused an exceedance (8) Determinations with respect to the specific high wind threshold that is or violation, the Administrator shall not reasonably controllable or more representative of local or regional determine such collective data to satisfy preventable criterion. (i) The not conditions, if appropriate. the requirements in paragraph reasonably controllable or preventable (iv) In addressing the requirements set (c)(3)(iv)(B) of this section regarding the criterion has two prongs that the State forth in paragraph (c)(3)(iv)(D) of this clear causal relationship criterion. must demonstrate: prevention and section regarding the not reasonably Where a State demonstrates to the control. preventable criterion, the State shall not Administrator’s satisfaction that for (ii) The Administrator shall determine be required to provide a case-specific national ambient air quality standards that an event is not reasonably justification for a high wind dust event. with averaging or cumulative periods preventable if the State shows that (v) With respect to the not reasonably longer than 24 hours the aggregate effect reasonable measures to prevent the controllable criterion of paragraph of events occurring on different days has event were applied at the time of the (c)(3)(iv)(D) of this section, dust controls caused an exceedance or violation, the event. on an anthropogenic source shall be Administrator shall determine such (iii) The Administrator shall considered reasonable in any case in collective data to satisfy the determine that an event is not which the controls render the requirements in paragraph (c)(3)(iv)(B) reasonably controllable if the State anthropogenic source as resistant to of this section regarding the clear causal shows that reasonable measures to high winds as natural undisturbed lands relationship criterion. control the impact of the event on air in the area affected by the high wind (ii) The Administrator shall accept as quality were applied at the time of the dust event. The Administrator may part of a demonstration for the clear event. determine lesser controls reasonable on causal relationship in paragraph (iv) The Administrator shall assess the a case-by-case basis. (c)(3)(iv)(B) of this section with respect reasonableness of available controls for
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anthropogenic sources based on in paragraphs (b)(3)(ii) and (b)(5)(i) whenever an event occurs or is information available as of the date of through (iii) of this section in reasonably anticipated to occur which the event. addressing the requirements set forth in may result in the exceedance of an (v) Except where a State, tribal or paragraph (c)(3)(iv)(D) of this section applicable air quality standard. federal air agency is obligated to revise regarding the not reasonably (ii) [Reserved] its state implementation plan, tribal controllable or preventable criterion, the (2) Initial notification of potential implementation plan, or federal State must include the following exceptional event. (i) A State shall implementation plan, the Administrator components: notify the Administrator of its intent to shall consider enforceable control (A) Identification of the natural and measures implemented in accordance request exclusion of one or more anthropogenic sources of emissions measured exceedances of an applicable with a state implementation plan, tribal causing and contributing to the implementation plan, or federal national ambient air quality standard as monitored exceedance or violation, being due to an exceptional event by implementation plan, approved by the including the contribution from local EPA within 5 years of the date of the creating an initial event description and sources. flagging the associated data that have event, that address the event-related (B) Identification of the relevant state pollutant and all sources necessary to been submitted to the AQS database and implementation plan, tribal by engaging in the Initial Notification of fulfill the requirements of the Clean Air implementation plan, or federal Act for the state implementation plan, Potential Exceptional Event process as implementation plan or other follows: tribal implementation plan, or federal enforceable control measures in place implementation plan to be reasonable for the sources identified in paragraph (A) The State and the appropriate EPA controls with respect to all (b)(8)(vii)(A) of this section and the Regional office shall engage in regular anthropogenic sources that have or may implementation status of these controls. communications to identify those data have contributed to the monitored (C) Evidence of effective that have been potentially influenced by exceedance or violation. implementation and enforcement of the an exceptional event, to determine (vi) Where a State, tribal or federal air measures identified in paragraph whether the identified data may affect a agency is obligated to revise its state (b)(8)(vii)(B) of this section. regulatory determination and to discuss implementation plan, tribal whether the State should develop and (D) The provisions in this paragraph implementation plan, or federal submit an exceptional events shall not apply if the provisions in implementation plan, the deference to demonstration according to the paragraph (b)(4), (b)(5)(vi), or (b)(6) of enforceable control measures identified requirements in this section; this section apply. in paragraph (b)(8)(v) of this section (9) Mitigation plans. (i) Except as (B) For data that may affect an shall remain only until the due date of anticipated regulatory determination or the required state implementation plan, provided for in paragraph (b)(9)(ii) of this section, where a State is subject to where circumstances otherwise compel tribal implementation plan, or federal the Administrator to prioritize the implementation plan revisions. the requirements of 40 CFR 51.930(b), the Administrator shall not place a resulting demonstration, the However, where an air agency is Administrator shall respond to a State’s obligated to revise the enforceable concurrence flag in the appropriate field for the data record in the AQS database, Initial Notification of Potential control measures identified in Exceptional Event with a due date for paragraph (b)(8)(v) of this section in its as specified in paragraph (c)(2)(ii) of this section, if the data are of the type and demonstration submittal that considers implementation plan as a result of an the nature of the event and the action pursuant to Clean Air Act section pollutant that are the focus of the mitigation plan until the State fulfills its anticipated timing of the associated 110(k)(5), the deference, if any, to those regulatory decision; enforceable control measures shall be obligations under the requirements of 40 determined on a case-by-case basis. CFR 51.930(b). The Administrator may (C) The Administrator may waive the (vii) The Administrator shall not nonconcur or defer action on such a Initial Notification of Potential require a State to provide case-specific demonstration. Exceptional Event process on a case-by- justification to support the not (ii) The prohibition on placing a case basis. reasonably controllable or preventable concurrence flag in the appropriate field (ii) The data shall not be excluded criterion for emissions-generating for the data record in the AQS database from determinations with respect to activity that occurs outside of the State’s by the Administrator stated in exceedances or violations of the jurisdictional boundaries within which paragraph (b)(9(i) of this section does national ambient air quality standards the concentration at issue was not apply to data that are included in an unless and until, following the State’s monitored. In the case of a tribe treated exceptional events demonstration that submittal of its demonstration pursuant as a state under 40 CFR 49.2 with is: to paragraph (c)(3) of this section and respect to exceptional events (A) submitted in accordance with the Administrator’s review, the requirements, the tribe’s jurisdictional paragraph (c)(3) of this section that is Administrator notifies the State of its boundaries for purposes of requiring or also of the type and pollutant that is the concurrence by placing a concurrence directly implementing emission controls focus of the mitigation plan, and flag in the appropriate field for the data apply. In the case of a federal land (B) submitted within the 2-year period record in the AQS database. manager or other federal agency allowed for mitigation plan (iii) [Reserved] submitting a demonstration under the development as specified in 40 CFR (iv) [Reserved] requirements of this section, the 51.930(b)(3). jurisdictional boundaries that apply are (c) Schedules and procedures—(1) (v) [Reserved] those of the State or the tribe depending Public notification. (i) In accordance (vi) Table 2 to § 50.14 identifies the on which has jurisdiction over the area with the mitigation requirement at 40 submission process for data that will or where the event has occurred. CFR 51.930(a)(1), all States and, where may influence the initial designation of (viii) In addition to the provisions that applicable, their political subdivisions areas for any new or revised national apply to specific event types identified must notify the public promptly ambient air quality standard.
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TABLE 2 TO § 50.14—SCHEDULE FOR INITIAL NOTIFICATION AND DEMONSTRATION SUBMISSION FOR DATA INFLUENCED BY EXCEPTIONAL EVENTS FOR USE IN INITIAL AREA DESIGNATIONS
Exceptional events/Regulatory action Condition Exceptional events deadline schedule d
(A) Initial Notification deadline for data years 1, 2 If state and tribal initial designation then the Initial Notification deadline will be the July and 3.a. recommendations for a new/revised 1 prior to the recommendation deadline. national ambient air quality stand- ard are due August through Janu- ary, (B) Initial Notification deadline for data years 1, 2 If state and tribal recommendations then the Initial Notification deadline will be the and 3.a. for a new/revised national ambient January 1 prior to the recommendation dead- air quality standard are due Feb- line. ruary through July, (C) Exceptional events demonstration submittal None ...... no later than the later of November 29, 2016 or deadline for data years 1, 2 and 3 a. the date that state and tribal recommendations are due to the Administrator. (D) Initial Notification and exceptional events dem- None ...... by the last day of the month that is 1 year and 7 onstration submittal deadline for data year 4 b months after promulgation of a new/revised na- and, where applicable, data year 5.c. tional ambient air quality standard, unless either paragraph (E) or paragraph (F) applies. (E) Initial Notification and exceptional events dem- If the Administrator follows a 3-year the deadline is 2 years and 7 months after promul- onstration submittal deadline for data year 4 b designation schedule. gation of a new/revised national ambient air and, where applicable, data year 5.c. quality standard. (F) Initial Notification and exceptional events dem- If the Administrator notifies the state/ the deadline is 5 months prior to the date speci- onstration submittal deadline for data year 4 b tribe that it intends to complete the fied for final designations decisions in such Ad- and, where applicable, data year 5.c. initial area designations process ac- ministrator notification. cording to a schedule between 2 and 3 years,. a Where data years 1, 2, and 3 are those years expected to be considered in state and tribal recommendations. b Where data year 4 is the additional year of data that the Administrator may consider when making final area designations for a new/revised national ambient air quality standard under the standard designations schedule. c Where data year 5 is the additional year of data that the Administrator may consider when making final area designations for a new/revised national ambient air quality standard under an extended designations schedule. d The date by which air agencies must certify their ambient air quality monitoring data in AQS is annually on May 1 of the year following the year of data collection as specified in 40 CFR 58.15(a)(2). In some cases, however, air agencies may choose to certify a prior year’s data in ad- vance of May 1 of the following year, particularly if the Administrator has indicated intent to promulgate final designations in the first 8 months of the calendar year. Exceptional events demonstration deadlines for ‘‘early certified’’ data will follow the deadlines for ‘‘year 4’’ and ‘‘year 5’’ data.
(3) Submission of demonstrations. (i) this section. The Administrator shall not (vi) Where the State has submitted a Except as provided under paragraph require a State to prove a specific demonstration according to the (c)(2)(vi) of this section, a State that has percentile point in the distribution of requirements of this section after flagged data as being due to an data; September 30, 2016 and the exceptional event and is requesting (D) A demonstration that the event Administrator has reviewed such exclusion of the affected measurement was both not reasonably controllable demonstration and requested additional data shall, after notice and opportunity and not reasonably preventable; and evidence to support one of the elements for public comment, submit a (E) A demonstration that the event in paragraph (c)(3)(iv) of this section, demonstration to justify data exclusion was a human activity that is unlikely to the State shall have 12 months from the to the Administrator according to the recur at a particular location or was a date of the Administrator’s request to schedule established under paragraph natural event. submit such evidence. At the (c)(2)(i)(B). (v) With the submission of the conclusion of this time, if the State has (ii) [Reserved] demonstration containing the elements not submitted the requested additional (iii) [Reserved] in paragraph (c)(3)(iv) of this section, evidence, the Administrator will notify (iv) The demonstration to justify data the State must: the State in writing that it considers the exclusion must include: (A) Document that the State followed demonstration to be inactive and will (A) A narrative conceptual model that the public comment process and that not pursue additional review of the describes the event(s) causing the the comment period was open for a demonstration. After a 12-month period exceedance or violation and a minimum of 30 days, which could be of inactivity by the State, if a State discussion of how emissions from the concurrent with the beginning of the desires to pursue the inactive event(s) led to the exceedance or Administrator’s initial review period of demonstration, it must reinitiate its violation at the affected monitor(s); the associated demonstration provided request to exclude associated data by (B) A demonstration that the event the State can meet all requirements in following the process beginning with affected air quality in such a way that this paragraph; paragraph (c)(2)(i) of this section. there exists a clear causal relationship (B) Submit the public comments it between the specific event and the received along with its demonstration to PART 51—REQUIREMENTS FOR monitored exceedance or violation; the Administrator; and PREPARATION, ADOPTION, AND (C) Analyses comparing the claimed (C) Address in the submission to the SUBMITTAL OF IMPLEMENTATION event-influenced concentration(s) to Administrator those comments PLANS concentrations at the same monitoring disputing or contradicting factual site at other times to support the evidence provided in the ■ 4. The authority citation for part 51 requirement at paragraph (c)(3)(iv)(B) of demonstration. continues to read as follows:
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Authority: 23 U.S.C. 101; 42 U.S.C. 7401– (B) Three events or event seasons that (A) With the submission of the initial 7671q. are the subject of an initial notification mitigation plan according to the ■ 5. Revise § 51.930 to read as follows: of a potential exceptional event as requirements in paragraph (b)(3) of this defined in 40 CFR 50.14(c)(2) in a 3-year section that contains the elements in § 51.930 Mitigation of Exceptional Events. period regardless of whether the State paragraph (b)(2) of this section, the State (a) A State requesting to exclude air submits a demonstration under the must: quality data due to exceptional events provisions of 40 CFR 50.14. (1) Document that a draft version of must take appropriate and reasonable (ii) The Administrator will provide the mitigation plan was available for actions to protect public health from written notification to States that they public comment for a minimum of 30 exceedances or violations of the are subject to the requirements in days; national ambient air quality standards. paragraph (b) of this section when the At a minimum, the State must: (2) Submit the public comments it (1) Provide for prompt public Administrator becomes aware of received along with its mitigation plan notification whenever air quality applicability. to the Administrator; and concentrations exceed or are expected to (2) Plan components. At a minimum, (3) In its submission to the exceed an applicable ambient air quality each mitigation plan developed under Administrator, for each public comment standard; this paragraph shall contain provisions received, explain the changes made to (2) Provide for public education for the following: the mitigation plan or explain why the concerning actions that individuals may (i) Public notification to and State did not make any changes to the take to reduce exposures to unhealthy education programs for affected or mitigation plan. levels of air quality during and potentially affected communities. Such (B) The State shall specify in its following an exceptional event; and notification and education programs mitigation plan the periodic review and (3) Provide for the implementation of shall apply whenever air quality evaluation process that it intends to appropriate measures to protect public concentrations exceed or are expected to follow for reviews following the initial health from exceedances or violations of exceed a national ambient air quality review identified in paragraph ambient air quality standards caused by standard with an averaging time that is (b)(2)(iii)(A) of this section. exceptional events. less than or equal to 24-hours. (3) Submission of mitigation plans. (b) Development of mitigation plans (ii) Steps to identify, study and All States subject to the provisions of for areas with historically documented implement mitigating measures, paragraph (b) of this section shall, after or known seasonal events—(1) including approaches to address each of notice and opportunity for public Generally. All States having areas with the following: comment identified in paragraph historically documented or known (A) Measures to abate or minimize (b)(2)(iii)(A) of this section, submit a seasonal events shall be required to contributing controllable sources of mitigation plan to the Administrator for develop a mitigation plan with the identified pollutants. review and verification of the plan components identified in paragraph (B) Methods to minimize public components identified in paragraph (b)(2) of this section and submit such exposure to high concentrations of (b)(2) of this section. plan to the Administrator according to identified pollutants. (i) States shall submit their mitigation the requirements in paragraph (b)(3) of (C) Processes to collect and maintain plans within 2 years of being notified this section. that they are subject to the provisions of (i) For purposes of the requirements data pertinent to the event. paragraph (b) of this section. set forth in this section, historically (D) Mechanisms to consult with other documented or known seasonal events air quality managers in the affected area (ii) The Administrator shall review shall include those events of the same regarding the appropriate responses to each mitigation plan developed type and pollutant that recur in a 3-year abate and minimize impacts. according to the requirements in period and meet any of the following: (iii) Provisions for periodic review paragraph (b)(2) of this section and shall (A) Three events or event seasons for and evaluation of the mitigation plan notify the submitting State upon which a State submits a demonstration and its implementation and completion of such review. under the provisions of 40 CFR 50.14 in effectiveness by the State and all [FR Doc. 2016–22983 Filed 9–28–16; 4:15 pm] a 3-year period; or interested stakeholders. BILLING CODE 6560–50–P
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Part VI
The President
Proclamation 9504—Death of Shimon Peres Proclamation 9505—National Arts and Humanities Month, 2016
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Federal Register Presidential Documents Vol. 81, No. 191
Monday, October 3, 2016
Title 3— Proclamation 9504 of September 28, 2016
The President Death of Shimon Peres
By the President of the United States of America
A Proclamation As a mark of respect for the memory of Shimon Peres, former President and Prime Minister of Israel, I hereby order, by the authority vested in me by the Constitution and laws of the United States of America, that the flag of the United States shall be flown at half-staff at the White House and on all public buildings and grounds, at all military posts and naval stations, and on all naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories and posses- sions until sunset, on September 30, 2016. I also direct that the flag shall be flown at half-staff for the same period at all United States embassies, legations, consular offices, and other facilities abroad, including all military facilities and naval vessels and stations. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-eighth day of September, in the year of our Lord two thousand sixteen, and of the Independence of the United States of America the two hundred and forty-first.
[FR Doc. 2016–24038 Filed 9–30–16; 11:15 am] Billing code 3295–F7–P
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Proclamation 9505 of September 28, 2016
National Arts and Humanities Month, 2016
By the President of the United States of America
A Proclamation Throughout history, the arts and humanities have been at the forefront of progress. In diverse mediums and methods—whether through the themes of a novel, the movement of a dancer, or a monologue on a stage—the arts enrich our souls, inspire us to chase our dreams, and challenge us to see things through a different lens. During National Arts and Humanities Month, we celebrate the important role the arts and humanities have played in shaping the American narrative. Our achievements as a society and a culture go hand-in-hand. The arts embody who we are as a people and have long helped drive the success of our country. They provoke thought and encourage our citizenry to reach new heights in creativity and innovation; they lift up our identities, con- necting what is most profound within us to our collective human experiences. In seeking to break down barriers and challenge our assumptions, we must continue promoting and prioritizing the arts and humanities, especially for our young people. In many ways, the arts and humanities reflect our national soul. They are central to who we are as Americans—as dreamers and story- tellers, creators and visionaries. By investing in the arts, we can chart a course for the future in which the threads of our common humanity are bound together with creative empathy and openness. When we engage with the arts, we instill principles that, at their core, make us truer to ourselves. This month, we acknowledge all those who have proudly and passionately dedicated their lives to these diverse, beautiful, and often challenging forms of expression. In our increasingly global economy, we recognize the power of the arts and humanities to connect people around the world. Be it through the pen of a poet, the voice of a singer, or the canvas of a painter, let us continue to harness the unparalleled ways the arts and humanities bring people together. 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 October 2016 as National Arts and Humanities Month. I call upon the people of the United States to observe this month with appropriate ceremonies, activities, and programs to celebrate the arts and the humanities in America.
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IN WITNESS WHEREOF, I have hereunto set my hand this twenty-eighth day of September, in the year of our Lord two thousand sixteen, and of the Independence of the United States of America the two hundred and forty-first.
[FR Doc. 2016–24041 Filed 9–30–16; 11:15 am] Billing code 3295–F7–P
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Reader Aids Federal Register Vol. 81, No. 191 Monday, October 3, 2016
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TABLE OF EFFECTIVE DATES AND TIME PERIODS—OCTOBER 2016
This table is used by the Office of the dates, the day after publication is A new table will be published in the Federal Register to compute certain counted as the first day. first issue of each month. dates, such as effective dates and When a date falls on a weekend or comment deadlines, which appear in holiday, the next Federal business day agency documents. In computing these is used. (See 1 CFR 18.17)
DATE OF FR 15 DAYS AFTER 21 DAYS AFTER 30 DAYS AFTER 35 DAYS AFTER 45 DAYS AFTER 60 DAYS AFTER 90 DAYS AFTER PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION
October 3 Oct 18 Oct 24 Nov 2 Nov 7 Nov 17 Dec 2 Jan 3
October 4 Oct 19 Oct 25 Nov 3 Nov 8 Nov 18 Dec 5 Jan 3
October 5 Oct 20 Oct 26 Nov 4 Nov 9 Nov 21 Dec 5 Jan 3
October 6 Oct 21 Oct 27 Nov 7 Nov 10 Nov 21 Dec 5 Jan 4
October 7 Oct 24 Oct 28 Nov 7 Nov 14 Nov 21 Dec 6 Jan 5
October 11 Oct 26 Nov 1 Nov 10 Nov 15 Nov 25 Dec 12 Jan 9
October 12 Oct 27 Nov 2 Nov 14 Nov 16 Nov 28 Dec 12 Jan 10
October 13 Oct 28 Nov 3 Nov 14 Nov 17 Nov 28 Dec 12 Jan 11
October 14 Oct 31 Nov 4 Nov 14 Nov 18 Nov 28 Dec 13 Jan 12
October 17 Nov 1 Nov 7 Nov 16 Nov 21 Dec 1 Dec 16 Jan 17
October 18 Nov 2 Nov 8 Nov 17 Nov 22 Dec 2 Dec 19 Jan 17
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