Vol. 81 Thursday, No. 92 May 12, 2016

Pages 29471–29760

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 81, No. 92

Thursday, May 12, 2016

Agriculture Department See National Oceanic and Atmospheric Administration See Animal and Plant Health Inspection Service See Commodity Credit Corporation Commodity Credit Corporation See Forest Service RULES See Rural Utilities Service Environmental Quality Incentives Program, 29471–29483 NOTICES Meetings: Comptroller of the Currency National Agricultural Research, Extension, Education, NOTICES and Economics Advisory Board, 29522 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Air Force Department Municipal Securities Dealers and Government Securities NOTICES Brokers and Dealers—Registration and Withdrawal, Meetings: 29621 Scientific Advisory Board, 29551 Consumer Product Safety Commission Animal and Plant Health Inspection Service NOTICES NOTICES Meetings; Sunshine Act, 29551 Environmental Assessments; Availability, etc.: Field Testing of a Vaccine for use Against Infectious Defense Department Laryngotracheitis, Marek’s Disease, and Newcastle See Air Force Department Disease, 29522–29523 PROPOSED RULES Permit for Distribution and Sale for Emergency Use of a Federal Acquisition Regulations: Classical Swine Fever Virus Vaccine, Live Pestivirus Administrative Cost to Issue and Administer a Contract, Vector, 29523–29524 29514–29515 Evaluation of the Fever Tick Status of the State of Chihuahua, Excluding the Municipalities of Guadalupe Drug Enforcement Administration y Calvo and Morelos, 29524–29525 RULES Schedules of Controlled Substances: Antitrust Division Placement of Brivaracetam into Schedule V, 29487–29492 NOTICES Temporary Placement of Butyryl Fentanyl and Beta– Changes Under the National Cooperative Research and Hydroxythiofentanyl into Schedule I, 29492–29496 Production Act: Cooperative Research Group on CHEDE–VII, 29577 Education Department Bureau of Consumer Financial Protection NOTICES NOTICES Agency Information Collection Activities; Proposals, Fair Lending Report, April 2016, 29533–29550 Submissions, and Approvals: Evaluation of the ESSA Title I, Part D, Neglected or Centers for Disease Control and Prevention Delinquent Programs, 29552–29553 NOTICES National Student Loan Data System, 29552 Agency Information Collection Activities; Proposals, Study of Digital Learning Resources for Instructing Submissions, and Approvals, 29566–29567 English Learner Students, 29551–29552 Meetings: Disease, Disability, and Injury Prevention and Control Employee Benefits Security Administration Special Emphasis Panel; Teleconference, 29565– NOTICES 29566 Proposed Exemptions: World Trade Center Health Program Scientific/Technical Certain Prohibited Transaction Restrictions, 29696–29718 Advisory Committee, 29567–29568 Energy Department Coast Guard See Federal Energy Regulatory Commission RULES Drawbridge Operations: Environmental Protection Agency Sacramento River, Sacramento, CA, 29496 RULES Security Zones: Air Quality State Implementation Plans; Approvals and Port of New York, Moving Security Zone; Canadian Naval Promulgations: Vessels, 29496–29498 California; San Joaquin Valley; Contingency Measures for Portland Rose Festival on Willamette River, 29498 the 1997 PM2.5 Standards; Withdrawal of Approval and Disapproval, 29498–29501 Commerce Department See Foreign-Trade Zones Board Equal Employment Opportunity Commission See Industry and Security Bureau NOTICES See International Trade Administration Meetings; Sunshine Act, 29563

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Federal Aviation Administration Formations of, Acquisitions by, and Mergers of Bank PROPOSED RULES Holding Companies, 29565 Airworthiness Directives: ATR—GIE Avions de Transport Regional Airplanes, Fish and Wildlife Service 29511–29514 NOTICES The Boeing Company Airplanes, 29505–29511 Environmental Impact Statements; Availability, etc.: Regulatory Relief; Aviation Training Devices: Lower Klamath, Clear Lake, Tule Lake, Upper Klamath, Pilot Certification, Training, and Pilot Schools; and Other and Bear Valley National Wildlife Refuges, Klamath Provisions, 29720–29759 County, OR; Siskiyou and Modoc Counties, CA: Draft NOTICES Comprehensive Conservation Plan; Correction, Aviation Rulemaking Advisory Committee—New Task, 29575–29576 29609–29611 Proposed Revisions to the U.S. Fish and Wildlife Service Mitigation Policy, 29574–29575 Federal Communications Commission NOTICES Foreign-Trade Zones Board Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 29564 Proposed Production Activities: Foreign-Trade Zone 125—LionsHead Specialty Tire and Federal Energy Regulatory Commission Wheel, LLC, South Bend, IN, 29527–29528 NOTICES Agency Information Collection Activities; Proposals, Forest Service Submissions, and Approvals, 29561–29563 NOTICES Alleged Violations: Requests for Nominations: Saracen Energy Midwest, LP, 29559 Secure Rural Schools Resource Advisory Committees, Applications: Indiana Michigan Power Co., 29560 29525–29527 Authorizations for Continued Project Operations: General Services Administration Turlock Irrigation District; Modesto Irrigation District, 29553 PROPOSED RULES Combined Filings, 29560–29561 Federal Acquisition Regulations: Compliance Filings: Administrative Cost to Issue and Administer a Contract, San Diego Gas & Electric Co. v. Sellers of Energy and 29514–29515 Ancillary Services Into Markets Operated by the Geological Survey California Independent System Operator Corp. and the California Power Exchange, 29556–29557 NOTICES Environmental Assessments; Availability, etc.: Exclusive Licenses, 29576 Columbia Gas Transmission, LLC, 29554–29556 Health and Human Services Department Erie Boulevard Hydropower, LP and Saint Regis Mohawk See Centers for Disease Control and Prevention Tribe, 29557 Environmental Impact Statements; Availability, etc.: See Substance Abuse and Mental Health Services Transcontinental Gas Pipe Line Co., LLC; Atlantic Administration NOTICES Sunrise Project, 29557–29558 Meetings: Hydroelectric Applications: National Vaccine Advisory Committee, 29568–29569 Utah Board of Water Resources, 29559 Physical Activity Guidelines Advisory Committee, Meetings: Algonquin Gas Transmission, LLC; Technical Conference, Secretary’s Advisory Committee on National Health 29553–29554 Promotion and Disease Prevention Objectives; Re- Preliminary Permit Applications: Establishment, 29569–29570 Black Mountain Hydro, LLC, 29563 Homeland Security Department Green Canyon Energy, LLC, 29554 See Coast Guard Federal Motor Carrier Safety Administration See U.S. Customs and Border Protection NOTICES Meetings; Sunshine Act, 29611 Industry and Security Bureau RULES Federal Railroad Administration Removal of Short Supply License Requirements on Exports NOTICES of Crude Oil, 29483–29487 Petitions for Waivers of Compliance, 29611–29612 Railroad Signal Systems: Interior Department Applications for Approval of Discontinuance or See Fish and Wildlife Service Modification, 29612–29613 See Geological Survey See Surface Mining Reclamation and Enforcement Office Federal Reserve System NOTICES International Trade Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals; Correction, 29565 Antidumping or Countervailing Duty Investigations, Orders, Changes in Bank Control: or Reviews: Acquisitions of Shares of a Bank or Bank Holding Certain Frozen Warmwater Shrimp from the People’s Company, 29564–29565 Republic of China, 29530–29531

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Drawn Stainless Steel Sinks from the People’s Republic PROPOSED RULES of China, 29528–29530 Endangered and Threatened Wildlife: Large Residential Washers from the People’s Republic of 90-Day Finding on a Petition to List the Taiwanese China, 29531–29532 Humpback Dolphin, 29515–29521 NOTICES Judicial Conference of the United States Meetings: NOTICES Gulf of Mexico Fishery Management Council, 29532– Meetings: 29533 Committee on Rules of Practice and Procedure, 29577 Mid-Atlantic Fishery Management Council, 29533 National Science Foundation Justice Department NOTICES See Antitrust Division Meetings: See Drug Enforcement Administration Committee on Equal Opportunities in Science and NOTICES Engineering, 29581 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Nuclear Regulatory Commission Assessing the Potential Monetized Benefits of Captioning NOTICES Web Content for Individuals Who Are Deaf or Hard Environmental Assessment and Finding of No Significant of Hearing, 29577–29578 Impact: GE Hitachi Nuclear Energy, Vallecitos Nuclear Center, Labor Department 29581–29584 See Employee Benefits Security Administration See Occupational Safety and Health Administration Occupational Safety and Health Administration NOTICES RULES Agency Information Collection Activities; Proposals, Tracking of Workplace Injuries and Illnesses, 29624–29694 Submissions, and Approvals: Department of Labor Generic Solution for Site Visits for Pipeline and Hazardous Materials Safety Administration Research Purposes, 29578–29579 NOTICES Occupational Code Assignment, 29579–29580 Hazardous Materials: Actions on Special Permit Applications, 29619–29620 Maritime Administration Applications for Special Permits, 29618–29619 NOTICES Delayed Applications, 29617–29618 Requests for Administrative Waivers of the Coastwise Trade Laws: Rural Utilities Service Vessel HAPPY TIME, 29613 NOTICES Vessel OFF CAY, 29614 Agency Information Collection Activities; Proposals, Vessel ORION, 29615–29616 Submissions, and Approvals, 29527 Vessel PALADIN, 29615 Vessel SEAS THE MOMENT, 29613–29614 Saint Lawrence Seaway Development Corporation Vessel TIGRESS, 29614–29615 NOTICES Meetings: National Aeronautics and Space Administration Advisory Board, 29620–29621 PROPOSED RULES Securities and Exchange Commission Federal Acquisition Regulations: NOTICES Administrative Cost to Issue and Administer a Contract, Exemptions: 29514–29515 IndexIQ ETF Trust; IQ Enhanced Core Bond U.S. ETF; IQ Enhanced Core Plus Bond U.S. ETF; et al., 29588– National Endowment for the Arts 29590 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Meetings: Bats EDGX Exchange, Inc., 29598–29600 Arts Advisory Panel, 29580–29581 BOX Options Exchange, LLC, 29584–29587 Miami International Securities Exchange, LLC, 29603– National Foundation on the Arts and the Humanities 29606 See National Endowment for the Arts NASDAQ Stock Market, LLC, 29590–29598 New York Stock Exchange LLC; NYSE Arca, Inc.; NYSE National Highway Traffic Safety Administration MKT LLC, 29600–29603 NOTICES Petitions for Decision: Social Security Administration Nonconforming Model Year 2012 Jeep Wrangler NOTICES Multipurpose Passenger Vehicles Manufactured for Privacy Act; Computer Matching Program, 29606–29607 the Mexican Market Are Eligible for Importation, 29616–29617 State Department NOTICES National Oceanic and Atmospheric Administration Delegations of Authority: RULES Assistant Secretary of State for Educational and Cultural Atlantic Highly Migratory Species: Affairs to the Deputy Assistant Secretary for Policy Atlantic Bluefin Tuna Fisheries, 29501–29504 and Evaluation, 29608

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Inspector General for the U.S. Department of State, U.S. Customs and Border Protection 29608–29609 NOTICES Designation of the Department of State Representative to Agency Information Collection Activities; Proposals, the Administrative Conference of the United States, Submissions, and Approvals: 29608 Delivery Ticket, 29572 Environmental Impact Statements; Availability, etc.: Commercial Gaugers and Laboratories; Accreditations and Presidential Permit Application Review, Otay Mesa Approvals: Conveyance and Disinfection System Project, San AmSpec Services, LLC, 29574 Diego County, CA, 29607–29608 Saybolt LP, 29573–29574 Meetings: Substance Abuse and Mental Health Services U.S. Customs and Border Protection User Fee Advisory Administration Committee, 29572–29573

NOTICES Agency Information Collection Activities; Proposals, Separate Parts In This Issue Submissions, and Approvals, 29570–29571

Surface Mining Reclamation and Enforcement Office Part II NOTICES Labor Department, Occupational Safety and Health Agency Information Collection Activities; Proposals, Administration, 29624–29694 Submissions, and Approvals, 29576–29577 Part III Surface Transportation Board Labor Department, Employee Benefits Security NOTICES Administration, 29696–29718 Abandonment Exemptions: Norfolk Southern Railway Co., Hamilton County, OH, Part IV 29609 Transportation Department, Federal Aviation Administration, 29720–29759 Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration Reader Aids See Maritime Administration Consult the Reader Aids section at the end of this issue for See National Highway Traffic Safety Administration phone numbers, online resources, finding aids, and notice See Pipeline and Hazardous Materials Safety of recently enacted public laws. Administration To subscribe to the Federal Register Table of Contents See Saint Lawrence Seaway Development Corporation LISTSERV electronic mailing list, go to http:// listserv.access.gpo.gov and select Online mailing list Treasury Department archives, FEDREGTOC-L, Join or leave the list (or change See Comptroller of the Currency settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

7 CFR 1466...... 29471 14 CFR Proposed Rules: 39 (3 documents) ...... 29505, 29508, 29511 61...... 29720 63...... 29720 91...... 29720 121...... 29720 135...... 29720 141...... 29720 15 CFR 730...... 29483 740...... 29483 742...... 29483 744...... 29483 746...... 29483 754...... 29483 762...... 29483 772...... 29483 774...... 29483 21 CFR 1308 (2 documents) ...... 29487, 29492 29 CFR 1902...... 29624 1904...... 29624 33 CFR 117...... 29496 165 (2 documents) ...... 29496, 29498 40 CFR 52...... 29498 48 CFR Proposed Rules: 14...... 29514 52...... 29514 50 CFR 635...... 29501 Proposed Rules: 223...... 29515 224...... 29515

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Rules and Regulations Federal Register Vol. 81, No. 92

Thursday, May 12, 2016

This section of the FEDERAL REGISTER Background conservation practices for each fiscal contains regulatory documents having general year (FY) from 2014 to 2018; The 2014 Act reauthorized and applicability and legal effect, most of which • Replacing the rolling 6-year amended EQIP. EQIP is implemented are keyed to and codified in the Code of payment limitation with an established under the general supervision and Federal Regulations, which is published under payment limitation for FY 2014 to FY 50 titles pursuant to 44 U.S.C. 1510. direction of the Chief of NRCS, who is 2018; a Vice President of CCC. • Requiring Conservation Innovation The Code of Federal Regulations is sold by Through EQIP, NRCS incentivizes the Superintendent of Documents. Prices of Grants (CIG) to report no later than Dec new books are listed in the first FEDERAL agricultural producers to conserve and 31, 2014, and every 2 years thereafter; REGISTER issue of each week. enhance soil, water, air, plants, animals • Establishing a $450,000 payment (including wildlife), energy, and related limitation and eliminating payment natural resources on their land. In limit waiver authority. DEPARTMENT OF AGRICULTURE particular NRCS provides technical and • Modifying the special rule for financial assistance to implement foregone income payments for certain Commodity Credit Corporation conservation practices in a manner that associated management practices and promotes agricultural production, forest resource concern priorities; 7 CFR Part 1466 management, and environmental quality • Revising availability of advance as compatible goals; optimize payments to up to 50 percent for eligible [Docket No. NRCS–2014–0007] conservation benefits; and help historically underserved participants to agricultural producers meet Federal, purchase material or contract services State, and local environmental RIN 0578–AA62 instead of the previous 30 percent; requirements. Conservation benefits are • Providing flexibility for repayment Environmental Quality Incentives reflected in the differences between of advance payment if payments are not Program (EQIP) anticipated effects of treatment in expended within 90 days; comparison to existing or benchmark • Identifying EQIP as a contributing AGENCIES: Natural Resources conditions. Differences may be program authorized to accomplish the Conservation Service (NRCS) and the expressed by narrative, quantitative, purposes of the Regional Conservation Commodity Credit Corporation (CCC), visual, or other means. Estimated or Partnership Program (RCPP) (Subtitle I U.S. Department of Agriculture (USDA). projected impacts are used as a basis for of Title XII of the Food Security Act of ACTION: Interim rule adopted as final making informed conservation decisions 1985, as amended) (Seven percent of with changes. by applicants and NRCS to help EQIP’s funding is transferred to determine which projects to approve for facilitate implementation of RCPP); and SUMMARY: An interim rule, with request EQIP assistance. • for comments, was published on Adding provisions to target Eligible lands include cropland, assistance to veteran farmers and December 12, 2014, to implement grassland, rangeland, pasture, wetlands, changes to EQIP that were either ranchers. nonindustrial private forest land, and In addition to updating the EQIP required by the Agricultural Act of 2014 other land on which agricultural or (the 2014 Act) or required to implement regulation to reflect changes made by forest-related products or livestock are the 2014 Act, the following administrative streamlining produced and natural resource concerns improvements and clarifications. This administrative changes in the EQIP may be addressed. Participation in the interim rule were made: document provides background on the program is voluntary. • final rule, issues the final rule to make Incorporating nonindustrial private On December 12, 2014, the EQIP forest owners and Indian Tribes where permanent these changes, responds to interim final rule with request for comments, and makes further appropriate; comments was published in the Federal • Making reference to Tribal adjustments in response to some of the Register (79 FR 73953) that amended comments received. Conservation Advisory Councils when the EQIP regulations at 7 CFR part 1466 appropriate; DATES: Effective Date: This rule is to implement changes made by the 2014 • Clarifying the issues where State effective May 12, 2016. Act. The changes made to the EQIP Technical Committees and Tribal FOR FURTHER INFORMATION CONTACT: regulation by the interim rule include: Conservation Advisory Councils Mark Rose, Director, Financial • Eliminating the requirement that provide input; Assistance Programs Division, U.S. the program contract remain in place for • Adjusting definitions to conform to Department of Agriculture, Natural a minimum of 1 year after the last definitions in other NRCS and USDA Resources Conservation Service, Post practice is implemented, but keeping regulations; Office Box 2890, Washington, DC the requirement that the contract term • Clarifying definitions and 20013–2890; telephone: (202) 720–1845; not exceed 10 years; requirements for development of fax: (202) 720–4265. Persons with • Consolidating elements of the Comprehensive Nutrient Management disabilities who require alternate means Wildlife Habitat Incentive Program Plans (CNMP) associated with Animal for communication (Braille, large print, (WHIP) in light of the 2014 Act Feeding Operations (AFO); audio tape, etc.) should contact the repealing the WHIP authority and • Clarifying outreach activities and USDA TARGET Center at: (202) 720– incorporating its purposes into EQIP; adding language that NRCS will ensure 2600 (voice and TDD). • Targeting at least five percent of outreach is provided so as to not limit SUPPLEMENTARY INFORMATION: available EQIP funds for wildlife-related producer participation because of size

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or type of operation, or production funding. Additionally, NRCS received changes were made to the regulation in system, including specialty crop and 34 comments that were general in response to the recommendation that organic production; nature, most of which expressed the regulatory waiver authority be • For irrigation and water support for the program or how the extended to all EQIP contracts. management practices, allowing an program has benefitted particular NRCS coordinates with Indian Tribes exception to the requirement that land operations. The topics that generated to ensure that program opportunities are has to have been irrigated 2 of the the greatest response include the available on Tribal lands to Tribal previous 5 years. The Chief may grant irrigation history requirement waiver, members. NRCS currently identifies this a waiver where there was a loss of wildlife funding, and funding for animal coordination with Indian Tribes, access to water due to circumstances feeding operations. including with the Tribal Conservation beyond the producer’s control; Advisory Council (TCAC), the State 1. Acreage Cap • Changing the contract limitation to Technical Committee, and local working correspond with the new payment Comment: NRCS received one groups, in § 1466.2 and throughout the limitation and clarify that such comment recommending that NRCS regulation. limitations do not apply to Indian establish a maximum acreage cap for NRCS policy related to coordination Tribes; EQIP contracts. with Indian Tribes and Tribal members • Revising the rule to clarify when NRCS Response: NRCS implements is found at Part 405 of Title 410 of the payment rates may be reduced as a EQIP in a size-neutral way. The EQIP NRCS General Manual. In its policy, result of NRCS entering into a formal statute provides a payment limitation NRCS identifies that an Indian Tribe agreement with a partner who provides and the regulation further provides for may designate a TCAC to provide input payments to producers participating a contract limitation. NRCS does not on NRCS programs and the conservation under general EQIP implementation, i.e. believe any further limitations are needs of the Tribe and Tribal producers. outside of RCPP; necessary to ensure broad participation The TCAC may: • Revising and adding definitions to on farms and ranches of all sizes. No • Be an existing Tribal committee or reflect EQIP authority to encourage changes were made in response to this department, including a Tribal development of wildlife habitat; comment. conservation district; • Clarifying terminology and • 2. Administration Consist of an association of member procedures associated with the Tribes that provide direct consultation development of payment schedules Comment: NRCS received nine to NRCS at the State, regional, and documenting practice payment rates; comments related to Administration, national levels; or • Simplifying language throughout to § 1466.2, most of which were from • Include a Tribal designee (or improve the regulation’s readability; Conservation Districts. The commenters designees) from a State Association of and requested that there be waiver authority Tribal Conservation Districts that • Removing provisions in the rule for EQIP regulatory provisions for all represents them and participates as part that relate solely to internal agency EQIP implementation, and not limited of the TCAC. administrative procedures that do not to RCPP implementation. Several of the Since coordination with Indian Tribes impact any rights or responsibilities of comments recommended that NRCS is established as part of the regulation participants in the program; provide greater emphasis to local and NRCS policy, no change was made working groups, identifying that local Summary of EQIP Comments to the EQIP regulation in response to work groups were removed from the this comment. The interim final rule had a 60-day State Technical Committee final rule in comment period ending February 10, 2009. One of the comments also 3. Advanced Payments 2015. There were received 65 timely requested that coordination with Indian Comment: NRCS received seven submitted responses to the rule, Tribes be incorporated into the comments expressing approval for the constituting 331 comments. This final Administration section. additional flexibility available for rule responds to comments received NRCS Response: Local working advanced payments. during the public comment period and groups remain an integral component of NRCS Response: NRCS appreciates incorporates changes as appropriate. In the operations of the State Technical the positive feedback. The additional this preamble, the comments have been Committee. They were fully flexibility for advanced payments is organized alphabetically by topic. The incorporated into the State Technical provided to assist historically topics include: Acreage cap, Committee final rule and operating underserved producers meet their administration, advanced payments, procedures. The comments about local responsibilities under the EQIP contract. allocations, comprehensive nutrient working groups do not relate to EQIP No changes were necessitated by the management plan, conservation activity implementation directly, or to the EQIP comments expressed by the plans, conservation innovation grants, final rule, and therefore no changes respondents. conservation plan, conservation were made. practices, contract length, contract NRCS limits the ability to waive EQIP 4. Allocations violation and terminations, definitions, regulatory provisions to the authority Comment: NRCS received five EQIP plan of operations, forestry provided by statute under RCPP, and comments requesting more transparency funding, fund management, grouping believes that it is not appropriate to in the method used to allocate EQIP and selecting applications, irrigation extend such waiver authority further. resources between States. These history, national priorities, payment With its review of project-wide comments recommended against the use limitations, program requirements, considerations, RCPP provides a of the 2011 State Resource Assessment regional conservation partnership structured format for consideration of (SRA). program, regional conservationist waiver requests that helps ensure NRCS Response: The SRA process has approval, regulatory certifications, waivers are not granted in an arbitrary been improved significantly since 2011 Transparency Act requirements, fashion. This safeguard is not available and now allows States to leverage technical service providers, veteran for consideration of waiver requests national, State, and local data to present farmer or ranchers, and wildlife during a general EQIP sign-up. No funding needs and demand in a flexible

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and transparent manner. At the national undertake an environmental analysis of with the Certification Agreement the level, this process enables NRCS to the effects of providing EQIP assistance TSP entered into with NRCS at the time focus funding on the highest priority to CAFOs. NRCS has and will continue of Certification. Therefore, on a project- resource needs across all States. The to conduct an environmental evaluation by-project basis, when CAP 142 on resulting annual allocation reflects before providing EQIP financial forested lands identifies the use of State-demonstrated need and available assistance to any producer to ensure complex forestry conservation practice funding. In addition, NRCS maintains EQIP financial assistance does not result standards, such as Forest Stand the flexibility to adjust annual in significant adverse impacts to the Improvement (FSI), the plan must be allocations in order to address emerging quality of the human environment. The approved by a TSP that also has been issues. For example, in FY 2014, NRCS environmental evaluation is used to aid certified as having the requisite forestry was able to send several States severely NRCS in compliance with the National technical skills. Other CAP 142 wildlife impacted by drought an additional $20 Environmental Policy Act (NEPA) and habitat management plans may not million above their annual allocation in helps NRCS determine the need for an include forestry practices as order to provide critical assistance to environmental analysis (EA) or complicated as FSI. Depending on the the impacted producers. environmental impact statement (EIS) geographic location and the particular when the impacts of the proposed practices being planned and 5. Animal Feeding Operations action do not fall within a categorical implemented, NRCS maintains the Comment: NRCS received nine exclusion or have not already been flexibility to determine when CAP 142 comments expressing concern about addressed in the EQIP programmatic projects on forested lands need to be using EQIP funds for new or expanding EA. approved by TSPs who also have been Confined Animal Feeding Operations certified for particular forestry 6. Comprehensive Nutrient Management (CAFOs). Some comments conservation practices. As a result, no Plan (CNMP) recommended that NRCS require a changes were made in response to this CAFO applicant to complete a CNMP as Comment: NRCS received three comment. a prerequisite to receiving any EQIP comments recommending that funds to build a waste storage or participants develop a CNMP prior to 8. Conservation Innovation Grants (CIG) treatment facility. Other comments funding waste storage practices. Comment: NRCS received six recommended that NRCS undertake a NRCS Response: The EQIP regulation comments concerning CIG, three of full environmental review of the impact at § 1466.7, EQIP Plan of Operations, which were recommendations. In of EQIP CAFO funding. requires a CNMP to be implemented if particular, one commenter NRCS Response: Section 1240E(a)(3) an EQIP plan of operations includes an recommended that the NRCS State of the Food Security Act of 1985 (1985 animal waste storage on an AFO. This Conservationist, in consultation with Act), as amended, authorizes payments requirement is further mirrored in the State Technical Committee, should for AFOs provided the producer submits § 1466.21, Contract Requirements, to be able to identify other resource a plan of operations that provides for state that a CNMP will be implemented concerns for State CIG projects and not development and implementation of a when an EQIP contracts includes an be limited to either the national CNMP. In the interim rule, NRCS animal waste facility on an AFO. No resource concerns or a subset of those revised the definition for AFO and changes were made to the EQIP concerns. Another commenter CNMP, and revised § 1466.7, EQIP Plan regulations in response to these recommended that NRCS aggressively of Operations, to clarify that if an EQIP comments. promote the on-farm research and plan of operations includes an animal development option, including a special waste storage or treatment facility to be 7. Conservation Activity Plans focus on and significant funding for implemented on an AFO, the Comment: NRCS received one projects of this nature in each year’s CIG participant must agree to develop and comment, disagreeing with the NRCS announcement of program funding implement a CNMP by the end of the technical policy determination that (APF). A third commenter contract period. This requirement is Conservation Activity Plan (CAP) 142 recommended that NRCS continue to further mirrored at § 1466.21, Contract on forest land must be approved by a publish the APF in the Federal Register. Requirements, to state that a CNMP Technical Service Provider (TSP) NRCS Response: The EQIP regulation should be implemented when an EQIP certified for forestry planning. currently allows flexibility for NRCS to contract includes an animal waste NRCS Response: Section 1240E of the implement State-level CIGs, with facility on an AFO. NRCS currently EQIP statute requires that EQIP resource priorities identified by the provides EQIP assistance for existing payments for a practice related to forest State Conservationist in consultation and expanding CAFO’s in accordance land must be consistent with the with the State Technical Committee. In with statutory regulations that require provisions of a ‘‘forest management plan particular, funding availability, EQIP to provide assistance in situations that is approved by the Secretary.’’ This application, and submission where resource concerns currently requirement was incorporated into the information for State competition are exists. EQIP interim rule at 7 CFR 1466.7(e). announced through public notice As provided by statute and rule, CAP 142 is a wildlife habitat (Grants.gov) separately from the NRCS already requires development of management plan. Under the TSP national notice. The State a CNMP as a condition to implement provisions at 7 CFR part 652, a TSP Conservationist determines the State waste facility practices. Since some hired by a program participant may component categories to be offered practices must be implemented prior to utilize the services of another TSP to annually. The regulation already others, it is infeasible to require full provide specific technical services or addresses the comment regarding State implementation of a CNMP as a expertise needed by the participant. identification of CIG priorities and no precondition for EQIP assistance for However, it remains the responsibility changes are needed. applicable practices. of the TSP hired by the participant to For the first time the 2014 Act As identified above and in the ensure that any technical services included language to allow CIG to fund regulatory certifications, two provided to them meets NRCS standards on-farm research and development of respondents recommended that NRCS and specifications, and are consistent technologies and approaches, and this

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authority was incorporated into the recommendations. A couple of the practices in an expedited manner. NRCS EQIP regulation. NRCS now provides commenters recommended that NRCS identified that the purpose of this support through CIG to on-farm allow treatment to be done on the ranking criterion was to further conservation research, pilot projects, highest priority soils or ecological sites statutory intent and to ensure timely and field demonstrations of promising within a Conservation Management and effective conservation approaches or technologies. CIG Unit, without making the rest of the improvements. NRCS continues to applications should demonstrate the use land unit ineligible for future support the policy behind this of innovative approaches and treatments. One commenter regulation. NRCS implements this technologies to leverage the Federal recommended a review and expansion regulatory provision during the ranking investment in environmental of available conservation practices to process for applicants that indicate a enhancement and protection, in better serve historically underserved, willingness to implement all conjunction with agricultural veteran, organic, small farmer, and other conservation practices within 3 years. production. NRCS appreciates the diverse producers. One commenter While the statute authorizes contracts comment recommending vigorous recommended adding to the regulation can be for up to 10 years in duration, support for these efforts, but no further the requirement that financial assistance NRCS implements this criterion for change is needed to the regulation in only be made for conservation practices those funding pools where the nature order for NRCS to provide such support. that address the Priority Natural and type of the resource concern to be NRCS supports the broad Resource Concerns identified in the addressed and practices applied do not dissemination of the public EQIP Plan of Operations. One require longer term conservation announcement of national CIG commenter recommended that NRCS treatment, such as with applications for competition. The CIG APF contains annually consult with the State fish and exclusion fences or other applications guidance on how to apply for the grants wildlife agencies and the U.S. Fish and with comparatively low application competition. NRCS, at one time, used Wildlife Service (FWS). costs. Additionally, NRCS recognizes the Federal Register for CIG NRCS Response: NRCS policy that this criterion may not be announcements, but removed the authorizes repeated implementation of appropriate to implement in funding requirement in the interim rule in order conservation practices on land where pools set aside for historically to speed up and simplify the process of the subsequent implementation of the underserved or limited resource making funding announcements. CIG practice will significantly improve the producers, or in cases where opportunities are now advertised level of treatment addressing a resource infrastructure construction is necessary, through the NRCS Web site and concern. EQIP assistance is provided to as financially these producers or Grants.gov. No changes were made in the highest priority applications based projects may need a longer response to this recommendation given upon the ranking criteria developed in implementation schedule. the wide availability of notice about the consultation with the State Technical 12. Contract Violation and Terminations CIG APF through other avenues. Committees. FWS and State fish and wildlife agencies are members of the Comment: NRCS received seven 9. Conservation Plan NRCS State Technical Committee and comments opposed to the removal of the Comment: NRCS received one therefore do not need to be identified specific reference to conservation comment recommending that a separately in the EQIP regulation. NRCS districts in EQIP contract termination comprehensive conservation plan continually reviews its conservation decisions. should be required prior to obtaining practices and whether NRCS assistance NRCS Response: The EQIP interim assistance. is able to address the resource concerns rule removed the provision at 7 CFR NRCS Response: NRCS supports and that the diversity of producers may 1466.26 which identified that NRCS believes that comprehensive have. No changes were needed in may consult with conservation districts conservation planning is a valuable response to these comments. in EQIP contract termination decisions. conservation tool for producers, but NRCS removed this section due to the does not agree it should make EQIP 11. Contract Length limitations on the disclosure of certain assistance contingent upon an applicant Comment: NRCS received one types of information provided by an having obtained a comprehensive comment recommending that the agricultural producer under Section conservation plan. Section 1240F of the maximum contract length be reduced 1619 of the Food, Conservation, and EQIP statute requires NRCS to assist from 10 years to 5 years. Energy Act of 2008 (2008 Act). NRCS producers by ‘‘providing payments for NRCS Response: Section 1240B of the will continue to work closely with its developing and implementing 1 or more EQIP statute allows an EQIP contract to conservation district partners in the practices, as appropriate’’ and have a 10-year duration. Congress has implementation of EQIP and its other ‘‘providing the producer with consistently retained this contract term conservation programs. No changes information and training to aid in in statute, recognizing the need for were made in response to these implementation of the plan.’’ Given that variation in contract duration. NRCS comments. the statute provides the flexibility for believes it must provide the flexibility The EQIP contract violation NRCS to provide EQIP assistance to authorized under the statute and that provisions (7 CFR 1466.25) address implement only one practice, NRCS there are situations where circumstances in which a participant believes that the intent is for the implementation of conservation violates their EQIP contract by losing planning to be similarly flexible to meet practices over a longer contract period control of the land under contract. the current conservation needs of its is needed to address the resource NRCS may allow a participant to participants. No changes were made in concern. Therefore, no changes were transfer the EQIP contract rights to an response to this comment. made to the regulation in response to eligible producer provided the this comment. participant notifies NRCS of the loss of 10. Conservation Practices In addition, a ranking criterion was control within the time specified in the Comment: NRCS received seven added at 7 CFR 1466.20(b) to provide contract, NRCS determines that the new comments regarding conservation priority to applicants who indicate a producer is eligible to participate in the practices, six of which were willingness to complete all conservation program, and the transfer of the contract

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rights does not interfere with meeting operations be approved by NRCS or a 16. Fund Management program objectives. certified TSP, and these comments do Comment: NRCS received one Given that the new producer is not a not require any changes be made to the recommendation that it dedicate a party to the EQIP contract until NRCS EQIP regulation. The EQIP plan of specific amount of EQIP funding for approves the contract transfer and adds operations is intended to inform specific categories (cover crops, CAFOs, the new producer to the contract, a new producers what practices are included etc.) to avoid situations where NRCS producer may not be aware they are not in the contract, the payment rate for the and producers are unsure of the level of eligible for payment until the contract practice, and when the practice must be funding available. The commenter transfer has been approved by NRCS. In installed. Information related to the expressed that this creates situations particular, any practices that a new resource concerns being addressed are where producers scramble to get their producer implements prior to NRCS included in the conservation plan paperwork submitted to meet deadlines approval of the contract transfer is not folder, the environmental evaluation eligible for payment because they are only to learn later that they will not be documentation (NRCS–CPA–52), and not a program participant at the time of funded. implementation. Changes to 7 CFR are the basis for many of the program NRCS Response: NRCS identifies the 1466.25 clarify a participant’s ranking criteria. As such, it is not resource concerns that will receive responsibility to notify NRCS about any necessary to duplicate this information priority through the posting of its loss of control of land, the timing of in the EQIP Plan of Operations. No ranking criteria and associated when a new producer must be changes were made in response to these application deadlines, including special identified, the timing of when a new comments. announcements of initiative funding. NRCS believes that this provides producer becomes eligible for payment, 15. Forestry Funding and the circumstances when partial or producers with information necessary to know what activities will receive full termination of the contract may be Comment: NRCS received one funding priority. EQIP is only able to appropriate. These changes do not affect comment to the EQIP interim rule, fund about 37 percent of the eligible the substance of the EQIP regulatory and recommending that at least 5 percent of applications it receives. No changes policy framework regarding land EQIP funds be dedicated to forestry transfers. were made in response to these practices. comments. 13. Definitions NRCS Response: Greater than 5 17. Grouping and Ranking Applications Comment: NRCS received 27 percent of EQIP funds have been comments related to the definitions dedicated to forestry practices following Comment: NRCS received 15 found at 7 CFR 1466.3 of the EQIP the increased emphasis upon providing comments about ranking and 5 interim rule. Amongst these comments, assistance to non-industrial private comments about grouping applications. there were a few comments regarding forestlands since the 2008 Act. No The ranking recommendations included changes are needed in order to meet the that NRCS should: how historic use areas by Indian Tribes • respondent’s recommendations. Have no ranking; should be considered as areas of an • agricultural operation. However, NRCS notes that two of its Streamline the application process NRCS Response: Most of the and ranking; regulatory provisions may inadvertently • comments were from the same hinder participation by forest Not prioritize applications based respondent, and related to suggested landowners. Namely, §§ 1466.7(e) and upon a producer’s ability to expedite edits to the wildlife definitions. NRCS 1466.21(b)(3)(v) require that if an EQIP practice implementation; • Prioritize grass-based systems over recognizes the unique status that Tribal plan of operations includes AFOs; lands and treaties have and will work conservation practices that address • Encourage transition to more with Tribal entities to ensure that forest-land-related resource concerns, sustainable practices; agricultural operations are properly the participant must develop and • Prioritize greenhouse gas reduction delineated. These comments did not implement a forest management plan by require any changes to the regulation. and carbon sequestration; and the end of the contract period. Often, a • Include consistency with Tribal law 14. EQIP Plan of Operations forestry management plan extends as well as State law related to irrigation beyond 10 years and thus beyond the Comment: NRCS received 11 practice provisions. maximum duration of an EQIP contract. comments related to 7 CFR 1466.7, EQIP As to the grouping of applications, Plan of Operations. The comments As such, it may not be feasible for a one commenter felt that beginning related to CNMPs have been discussed forestry landowner to implement fully farmers and ranchers received too much above. Other comments recommended the forestry management plan during emphasis. One commenter felt that there that the regulation specify that all the EQIP contract term. Unlike a CNMP were too many funding pools, while conservation practices in the EQIP plan that covers a specific type of operation another recommended that States with of operations must be approved by with practices that can be more at-risk species have more funding pools. NRCS or an NRCS-approved TSP with immediately implemented, a forestry One commenter recommended that appropriate job approval authority in management plan deals with managing operations compete against operations accordance with the applicable NRCS a landscape which may require several of similar sizes, while another Conservation Practice Standards in the years for the forest to respond to a commenter recommended prohibiting Field Office Technical Guide. Some treatment before another can be applied. separate funding pools for CAFOs and comments also recommended that the Therefore, the provisions at §§ 1466.7(e) instead encourage grazing plans for EQIP plan of operations identify the and 1466.21(b)(3)(v) are modified to livestock. specific resource concerns to be require a participant to implement NRCS Response: NRCS accepts EQIP addressed, which currently is not conservation practices consistent with applications on a continuous basis, but included. an approved forest management plan if establishes application ‘‘cut-off’’ or NRCS Response: NRCS currently the EQIP plan of operations addresses submission deadline dates for requires that the EQIP plan of forest-land-related resource concerns. evaluation and ranking of eligible

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applications. Depending upon annual 18. Irrigation History program policy at Title 440 funding levels, NRCS will allocate Comment: NRCS received 73 Conservation Programs Manual, Part specific amounts of EQIP funding to comments related to the irrigation 515, Section 515.52, reflecting all meet legislative requirements, address history requirement and the criteria that criteria in the preamble of the EQIP rule certain national priorities, and also NRCS should consider for waiving it. except for the acreage limitation. NRCS make funds available for NRCS State The following summarizes the general believes that the criteria incorporated Conservationists to help address content of these comments, into policy ensure that program resource priorities identified by State recommending: participants will be able to obtain access Technical Committees. These priorities • Support for the new waiver to EQIP to address resource concerns in are then incorporated into ranking provision; a manner that does not adversely affect criteria, based upon the factors • The requirements for the waiver be available water supplies. NRCS will identified in statute and in § 1466.20 of less restrictive; continue to evaluate the utility of these the EQIP rule. In response to the request • That Indian Tribes be exempt from criteria as it reviews actual waiver to streamline the application and the irrigation history requirement requests and may make adjustments ranking process, for many years NRCS altogether, or at least not subject to the based upon the experience obtained has utilized screening factors as part of agricultural history waiver criterion, from actual implementation of the its evaluation and ranking of priority provided the Tribe has a secured legal waiver provision. projects. To clarify that these screening water right; 19. National Priorities • The irrigation history requirement factors are part of the ranking process, Comment: NRCS received one be completely removed; slight adjustments have been made in comment on national priorities, § 1466.20(b) to identify how these • All producers, not just limited resource or socially disadvantaged recommending broadening national screening factors are used as part of the priority related to threatened and evaluation and selection of projects. producers, be eligible for a waiver; and • Specific recommendations related endangered species under the In evaluating EQIP applications, to the waiver criteria, such as: Endangered Species Act. NRCS strives to obtain input from Æ Removing the proposed acreage NRCS Response: As identified in the Tribes, States, and other affected limit; EQIP regulation, the national priority is constituents through seeking advice Æ Removing the exclusion of land not limited to Federally-listed from the State Technical Committees, that has been subject to a water threatened and endangered species, but TCACs, and local working groups. For shortage; identifies the promotion of habitat water conservation or irrigation-related Æ Prohibiting waivers on native conservation for ‘‘at-risk’’ species practices, TCACs routinely have the prairie and grasslands with no prior habitat conservation. ‘‘At-risk’’ species opportunity to identify issues, including cropping history; include any plant or animal listed as those that raise concerns related to Æ Clarifying the types of practices threatened or endangered; proposed or a Tribal laws, in order to advise NRCS on that are considered irrigation practices; candidate for listing under the more effective ways to deliver programs Æ Clarifying whether the acreage Endangered Species Act; a species listed and on the application process. While limitation is per operation or per year; as threatened or endangered under State not explicitly stated in the regulation, and law or Tribal law on Tribal land; State NRCS believes that this advisory Æ Considering impacts to wildlife or Tribal land species of conservation process with State Technical when implementing irrigation practices. concern; or other plant or animal Committees and TCACs is considerate NRCS Response: NRCS proposed species or community, as determined by of and consistent with applicable State several criteria and requested public the State Conservationist, with advice and Tribal laws. comments on the criteria that will be from the State Technical Committee or used to determine whether to waive the TCAC, that has undergone, or is likely Additionally, in its ranking, NRCS irrigation history requirement, including to undergo, population decline and may groups applications to the greatest whether: become imperiled without direct extent possible by similar crop, forestry, • The waiver provision should be intervention. No changes were made in or livestock operations for evaluation limited to applicants who are limited response to this recommendation. purposes or otherwise evaluating each resource or socially disadvantaged 20. Outreach Activities application relative to other producers (including Indian Tribal applications of similar agricultural producers). Beginning farmers and Comment: NRCS received six operations. NRCS establishes a funding ranchers were excluded from this comments on outreach, five of which pool for beginning farmer and ranchers consideration; expressed approval for NRCS’ current in accordance with statutory set-aside • The irrigation practices are efforts with respect to historically requirements. Subaccounts may also be necessary for the adoption of a underserved producers and developed to address a specific resource sustainable agricultural production recommending that NRCS maintain and concern, geographic area, or type of method, such as the adoption of cover expand outreach to these producers. agricultural operation, such as crops to improve the soil condition; One commenter recommended addressing habitat needs of at-risk • The land has been in active increasing participation among forestry species. However, to promote efficient agriculture (cropped, hayed, or grazed) landowners. and timely delivery of program for 4 of the last 6 years; NRCS Response: NRCS will continue assistance, NRCS policy encourages • The waiver would adversely impact to expand its outreach to historically States to limit creating subaccounts in limited surface or groundwater supplies; underserved producers. ProTracts to the minimum number and NRCS is working in coordination with needed to effectively rank and approve • An acreage limitation should be other USDA and Federal agencies to applications. EQIP policy currently applied, such as 50 acres per producer ensure that we are consistent with our addresses the respondents concerns or 200 acres per Tribe. outreach approach to serve historically regarding grouping applications and no In order to implement the waiver underserved producers in rural and changes were made to the regulation. provision, NRCS developed and issued urban areas. NRCS is collaborating and

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working cooperatively with a variety of outreach efforts. NRCS will consider the removal, while four recommended that community-based organizations to recommendations regarding its payment NRCS re-institute the requirement. ensure all customers receive high schedules in its fiscal year 2016 and NRCS Response: The requirement quality service and the information future payment schedule development concerning the approval of contracts by necessary to fully participate in all of its efforts. Section 1466.23(b)(4) of the the Regional Conservationist has been programs and services. For example, EQIP regulation requires NRCS to adjust removed from the regulation as it is an most recently, NRCS initiated a major program payment percentages to a internal administrative matter. NRCS partnership project in Alabama, North participant when NRCS enters into a bases its internal review requirements in Carolina, and South Carolina to assist formal agreement with partners who a manner that balances ensuring African American forest landowners in also provide financial support to the financial integrity with administrative adopting and applying sustainable forest participant to help implement program efficiency. NRCS adjusts these management practices to improve the initiatives. This adjustment ensures requirements based upon findings from value of their forestlands. Due to the coordination of conservation investment its quality assurance reviews. No success of this partnership, NRCS is under formal partnership agreements to changes were made to the regulation in looking to expand this project into encourage the voluntary adoption of response to these recommendations. Arkansas, Georgia, Mississippi, Virginia, practices and not as a windfall to 25. Regulatory Certifications and Indian Country. producers. This adjustment does not apply to situations where NRCS and Comment: NRCS received 13 21. Payment Limitations other conservation organizations are comments related to various regulatory Comment: NRCS received eight independently providing assistance to a certifications that appeared in the comments concerning payment producer. preamble of the interim rule. Namely, limitations, five of which five commenters stated that consultation recommending a separate payment 23. Regional Conservation Partnership was required under Executive Order limitation lower than the current Program (RCPP) 13175 since they believe that EQIP imposes substantial costs on Tribal statutory levels. Comment: NRCS received three governments associated with NRCS Response: Section 1240G of the comments on RCPP. The commenters EQIP statute specifies a $450,000 environmental and cultural resource recommended that RCPP requirements compliance; three comments stated that payment limitation for persons and legal be subject to public comment, that entities. The EQIP statute does not Executive Order 13132 required NRCS NRCS explain the contribution to coordinate with Conservation provide authority to mandate a lower requirement under RCPP, and identify payment limitation. No changes were Districts, as well as other State and local in the EQIP regulation that EQIP is a governments, prior to publishing the made to the regulation in response to covered program under RCPP. this comment. EQIP interim rule; and five commenters NRCS Response: NRCS has held stated NRCS failed to meet the 22. Program Requirements numerous stakeholder meetings across requirements of Executive Order 13563 Comment: NRCS received 13 the country to obtain input concerning to improve coordination across agencies comments regarding various program RCPP procedures and requirements, and to reduce costs and simplify rules. requirements, 11 of which made specific incorporates this feedback into the APF. NRCS Response: NRCS met its recommendations including: The RCPP statute requires partners to responsibilities under Executive Orders • Higher payment rates for contribute a significant portion of the 13175, 13132, and 13563. Section 5 of historically underserved producers with overall costs of the project. This Executive Order 13175 provides that an one commenter expressing disagreement contribution of resources is reflected in agency should not promulgate any for higher payment rates, while another the partnership agreement entered into regulation that imposes substantial commenter expressed support for between NRCS and a partner. The direct compliance costs on Tribal veteran farmers or ranchers receiving a overall cost includes all direct and governments that is not required by higher payment rate; indirect costs associated with statute unless funds necessary to pay • Payment schedule scenarios, with implementation, from NRCS and the direct costs incurred by the Tribal two commenters recommending that partner(s). Partners may include funds government or the Tribe in complying payment scenarios be published on they have received from other Federal with the regulation are provided by the NRCS State Web sites, one commenter sources as part of their contribution to Federal government; or alternatively, recommending that NRCS address the project, provided they submit a the agency, prior to the formal disparities between small or large written commitment from the Federal promulgation of the regulation, operations of payments for management agency confirming such funds can be consulted with Tribal officials early in practices that are based on number of used in conjunction with NRCS funds. the process of developing the proposed acres, while another commenter NRCS provides greater priority to regulation. recommending that NRCS have applicants that are able to contribute at While Indian Tribes and their additional organic production scenarios; least 50 percent of the resources needed members are eligible to participate in and to implement a project. A minor change EQIP, such participation is voluntary • Initiatives, with the commenter has been made to the EQIP final rule to and does not mandate compliance costs requesting clarification about when clarify that EQIP is a covered program on the part of the Tribe. Additionally, in NRCS may reduce the level of EQIP under RCPP. response to the 2014 Act enactment, NRCS developed and implemented an assistance provided due to a 24. Regional Conservationist Approval contribution by a partnering entity. outreach plan to obtain meaningful NRCS Response: NRCS will continue Comment: NRCS received seven input from Indian Tribes regarding all to encourage enrollment by historically comments on the removal of the NRCS conservation programs, including underserved producers through requirement that the Regional EQIP. NRCS consultation policies statutory tools such as higher payment Conservationist approve contracts related to Executive Order 13175 are rates and funding pool set asides, and obligating funds over $150,000. Three currently contained in the NRCS programmatic policy emphasis and respondents expressed support for the General Manual (GM) at 410 GM Part

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405, 180 GM Parts 401 and 404, and 420 27. Technical Service Providers (TSPs) standards that are utilized to benefit GM Part 401. For ongoing NRCS Comment: NRCS received one wildlife. No changes were made to the program activities, NRCS State comment expressing approval for the regulation in response to these Conservationists have primary utilization of TSPs. comments. responsibility for engaging with Indian NRCS Response: NRCS appreciates Regulatory Certifications Tribes and ensuring that NRCS’ Tribal the comment and will continue to consultation responsibilities have been encourage the utilization of TSPs in the Executive Order 12866 and 13563 met. implementation of EQIP. No changes Executive Order 12866, ‘‘Regulatory Executive Order 13132 governs how Planning and Review,’’ and Executive agencies should develop policies that were necessitated by this comment. Order 13563, ‘‘Improving Regulation have federalism implications. Under 28. Veteran Farmer or Ranchers and Regulatory Review,’’ directs Executive Order 13132, ‘‘policies that Comment: NRCS received five agencies to assess all costs and benefits have federalism implications’’ refers to comments expressing support for the of available regulatory alternatives and, regulations that have substantial direct priority provided to veteran farmers and effects on the States, on the relationship if regulation is necessary, to select ranchers. between the national government and regulatory approaches that maximize NRCS Response: NRCS appreciates the States, or on the distribution of net benefits (including potential the comment and will continue to power and responsibilities among the economic, environmental, public health encourage participation in EQIP by various levels of government. EQIP is a and safety effects, distributive impacts, voluntary program to provide assistance veteran farmers or ranchers. No changes and equity). Executive Order 13563 to producers of eligible lands. As stated were necessitated by this comment. emphasizes the importance of quantifying both costs and benefits, of in the EQIP interim rule preamble, EQIP 29. Wildlife Funding does not have a substantial direct effect reducing costs, of harmonizing rules, Comment: NRCS received 16 on States, the relationship between the and of promoting flexibility. OMB comments expressing concern that 5 Federal government and the States, or designated this final rule a significant percent was the minimum funding the distribution of power and regulatory action. The administrative available for wildlife-focused activities responsibilities. record is available for public inspection Section 2 of Executive Order 13563 and that wildlife is not being partitioned at NRCS National Headquarters located requires that regulations be adopted clearly to demonstrate an additive at 1400 Independence Avenue through a process that involves public effect. Some commenters recommended Southwest, South Building, Room 5831, participation, and to the extent feasible that wildlife funding be tracked based Washington, DC 20250–2890. Pursuant and consistent with law, the open on ranking of resource concerns and not to Executive Order 12866, NRCS exchange of information and by targeting specific practices. Others conducted an economic analysis of the perspectives among State, local, and recommended that only those 16 potential impacts associated with this Tribal officials, experts in relevant conservation practice standards that program. A summary of the economic disciplines, affected stakeholders in the have fish and wildlife as a primary analysis can be found at the end of the private sector, and the public as a purpose should be used to track the regulatory certifications section of this whole. Section 1246 of the 1985 Act wildlife fund requirement. preamble, and a copy of the analysis is requires publication of the EQIP NRCS Response: The 2014 Act available upon request from the Director regulation as an interim rule with an repealed WHIP and incorporated its of NRCS’ Financial Assistance Programs opportunity for public comment. The purposes into EQIP. Under the 2014 Division or electronically at: http:// EQIP interim rule published on Act, at least 5 percent of EQIP assistance www.nrcs.usda.gov/programs/eqip/ December 12, 2014, included a 60-day must be targeted towards conservation under the EQIP Rules and Notices with public comment period, during which practices with a specific purpose related Supporting Documents title. to wildlife habitat. Since this is an the comments regarding Executive Regulatory Flexibility Act Order 13563 were received by NRCS. administrative requirement, NRCS did not include it in the EQIP regulation, The Regulatory Flexibility Act (5 26. Transparency Act Requirements but discussed in the preamble of the U.S.C. 601–612) (RFA) generally Comment: NRCS received five interim rule how it will meet the requires an agency to prepare a comments expressing concern about the requirement. In particular, NRCS regulatory flexibility analysis of any rule applicability of the Federal Funding identified that it will track its subject to notice and comment Accountability and Transparency Act compliance with this requirement by rulemaking requirements under the (Transparency Act) requirements to identifying those conservation practices Administrative Procedure Act or any EQIP contracts and the impact failure to where wildlife habitat is the primary other statute. NRCS did not prepare a comply with these requirements have purpose. Out of more than 160 existing regulatory flexibility analysis for this upon agricultural producers. conservation practice standards, 16 have rule because NRCS is not required by 5 NRCS Response: The Office of wildlife habitat as a primary purpose, in U.S.C. 553, or any other provision of Management and Budget (OMB) addition to approximately 45 standards law, to publish a notice of proposed regulations at 2 CFR parts 25 and 170 that are often used to benefit wildlife. rulemaking with respect to the subject implement the Transparency Act and The preamble also identified that in matter of this rule. Regardless, NRCS are government-wide requirements. The certain situations, such as wildlife- has determined that this action, while Transparency Act regulations apply to focused initiatives, other practices may mostly affecting small entities, will not awards of financial assistance to non- also be tracked where the practices are have a significant economic impact on Federal entities. EQIP assistance is designed to achieve specific wildlife a substantial number of these small financial assistance, thus the objectives. entities. NRCS made this determination Transparency Act requirements apply to Given the statutory language, it is based on the fact that this regulation is its implementation of awards to non- appropriate to track both the 16 incentive-based, and therefore only Federal entities. No changes were made wildlife-specific practices and, in impacts those who participate in response to these comments. wildlife-focused initiatives, the 45 voluntarily in the program. Small entity

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applicants will not be affected to a requirements related to soil and water EQIP funds for beginning farmers or greater extent than large entity quality—and the fact that in the Farm ranchers, as well as prioritizing veterans applicants. Security and Rural Investment Act of that are socially disadvantaged farmers 2002, Congress removed the restriction or ranchers and beginning farmer or Congressional Review Act on providing financial assistance to ranchers is expected to increase Section 1246(c) of the 1985 Act, as large confined livestock operations to participation among these groups. amended by section 2608 of the 2014 construct animal waste management The Civil Rights Impact Analysis Act, enables the Secretary of Agriculture facilities and required NRCS to direct 60 indicates that producers who are to use the authority granted in section percent of its EQIP assistance to members of the protected groups have 808(2) of Title 5 of the United States livestock producers. NRCS has, and will participated in NRCS conservation Code to forego the Congressional continue to conduct an environmental programs at the same rates as other Review Act’s 60-day Congressional evaluation before providing EQIP producers. Extrapolating from historical review, which delays the effective date financial assistance to any producer to participation data, it is reasonable to of major regulations, if the agency finds determine the need for an EA or EIS. conclude that EQIP will continue to be that there is a good cause to do so. NRCS regulations in 7 CFR part 652 administered in a nondiscriminatory NRCS hereby determines that it has define the environmental evaluation as manner. Outreach and communication good cause to do so in order to meet the the part of the NRCS planning process strategies are in place to ensure all Congressional intent to have the that inventories and estimates the producers are provided the same conservation programs, authorized or potential effects on the human information, enabling them to make amended under Title 7 of the 1985 Act, environment of alternative solutions to informed compliance decisions in effect as soon as possible. NRCS also resource problems. The environmental regarding the use of their lands that will determined it has good cause to forgo evaluation is used to determine the need affect their participation in USDA delaying the effective date given the for an EA or EIS, and aids in the programs. Therefore, this final rule critical need to let agricultural consideration of alternatives and in the portends no adverse civil rights producers know what programmatic identification of available resources implications for women, minorities, and changes are being made so that they can when an EA or EIS is not required (7 persons with disabilities. make financial plans accordingly prior CFR 650.4(c)). to planting season. For these reasons, NRCS will also use the environmental Paperwork Reduction Act this rule is effective upon publication in evaluation to evaluate the Section 1246 of the 1985 Act, as the Federal Register. environmental effects of specific amended by the 2014 Act, requires that Environmental Analysis requests to grant irrigation waivers. It is implementation of programs authorized not possible to meaningfully analyze the by Title 7 of the 1985 Act be made NRCS prepared a programmatic EA in effects of these waivers at a national without regard to the Paperwork association with the EQIP rulemaking to level because of site-specific factors. Reduction Act of 1995 (44 U.S.C. 3501 aid in its compliance with NEPA when NRCS would have to speculate as to the et seq.). Therefore, NRCS is not expending EQIP funds in implementing types of requests that might be received reporting recordkeeping or estimated site-specific actions (40 CFR 1501.3(b)). and granted, and NEPA does not require paperwork burden associated with this As a result of the analysis, the Chief of analysis of speculative actions. As a final rule. NRCS determined that there will not be result, the programmatic EA prepared to Government Paperwork Elimination Act a significant impact to the human identify the effects of the EQIP rule does environment as a result of the changes not analyze the effects of waiver NRCS is committed to compliance implemented by this rule; therefore, an requests. with the Government Paperwork EIS was not required (40 CFR 1508.13). A copy of the EA and FONSI may be Elimination Act and the Freedom to E- Only one comment was received on the obtained from the following Web site: File Act, which require government EA. The commenter expressed that EQIP http://www.nrcs.usda.gov/ea. A hard agencies, in general, to provide the has not allowed for seed producers to copy may also be obtained in any of the public the option of submitting adequately respond to programs that are following ways: (1) Send an email to information or transacting business announced after the seed production [email protected] with electronically to the maximum extent season and requested communication ‘‘Request for EA’’ in the subject line, or possible. To better accommodate public improvements. This comment did not (2) mail a written request to: National access, NRCS has developed an online provide new information that is relevant Environmental Coordinator, Natural application and information system for to environmental concerns or that bears Resources Conservation Service, public use. on the proposed action or its impacts Ecological Sciences Division, Post Executive Order 13175 that warrants supplementing or revising Office Box 2890, Washington, DC the EQIP EA and Finding of No 20013–2890. This final rule has been reviewed in Significant Impact. accordance with the requirements of Two additional letters were received Civil Rights Impact Analysis Executive Order 13175, Consultation providing comments on the interim NRCS conservation programs apply to and Coordination with Indian Tribal final rule recommending that NRCS all persons equally regardless of their Governments. Executive Order 13175 undertake an EA of the effects of race, color, national origin, gender, sex, requires Federal agencies to consult and providing EQIP assistance to CAFOs. or disability status. Through its Civil coordinate with Tribes on a NRCS considered this input and Rights Impact Analysis, NRCS government-to-government basis on determined it lacks discretion on determined that the final rule discloses policies that have Tribal implications, whether to provide assistance to no disproportionately adverse impacts including regulations, legislative existing or expanding CAFOs. NRCS for minorities, women, or persons with comments or proposed legislation, and made this determination based on its disabilities. The national target of other policy statements or actions that review of the EQIP legislative history, setting aside 5 percent of EQIP funds for may have substantial direct effects on the purposes of EQIP—which include socially disadvantaged farmers or one or more Indian Tribes, the assisting producers to meet regulatory ranchers, and an additional 5 percent of relationship between the Federal

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government and Indian Tribes, or the determined that the final rule conforms part of EQIP financial assistance distribution of power and with the Federalism principles set out contracts. responsibilities between the Federal in this Executive Order, would not Regulatory Impact Analysis—Executive government and Indian Tribes. NRCS impose any compliance costs on the Summary has assessed the impact of this final rule States, and would not have substantial on Indian Tribes and determined that direct effects on the States, on the Pursuant to Executive Order 12866, Tribal consultation under Executive relationship between the Federal Regulatory Planning and Review, NRCS Order 13175 does not apply. However, government and the States, or on the has conducted a Regulatory Impact NRCS believes that consultation with distribution of power and Analysis (RIA) of EQIP as pursuant to Tribes is critical to ensuring that the responsibilities among the various the changes of the 2014 Act. On program is administered in a fair and levels of government. Therefore, NRCS December 12, 2014, an interim rule and equitable manner. Therefore, NRCS has concludes that this final rule does not an accompanying RIA, with request for reviewed letters and comments have Federalism implications. comments, was published which submitted by and on behalf of Tribes implemented changes to EQIP during the public comment period Federal Crop Insurance Reform and necessitated by the enactment of the leading to an additional public Department of Agriculture 2014 Act or required to implement presentation and information gathering Reorganization Act of 1994 administrative clarifications and on the final rule with Tribes, Tribal Pursuant to section 304 of the Federal streamlining improvements. NRCS representatives, and Tribal members on Crop Insurance Reform Act of 1994 received 331 comments from 65 December 7th in Las Vegas, Nevada. (Pub. L. 103–354), USDA has estimated respondents to the interim rule. NRCS NRCS made several changes to the final that this regulation will not have an received no comments on the RIA. The rule to address concerns raised by annual impact on the economy of final rule makes permanent the changes Tribes and Tribal representatives $100,000,000 in 1994 dollars, and proposed in the interim rule along with throughout the NRCS outreach and therefore, is not a major regulation. As some minor adjustments based on collaboration process. NRCS developed such, a risk analysis was not conducted. public comments. NRCS determined and implemented an outreach and that these minor adjustments would not collaboration plan to use while Executive Order 13211 significantly alter the RIA. In considering alternatives for developing its policy regarding the 2014 This rule is not a significant implementing EQIP, USDA followed the Act. If a Tribe requests consultation, regulatory action subject to Executive legislative intent to maximize beneficial NRCS will work at the appropriate local, Order 13211, Energy Effects. State, or national level, including with conservation impacts, address natural the USDA Office of Tribal Relations, to Registration and Reporting resource concerns, establish an open ensure meaningful consultation is Requirements of the Federal Funding participatory process, and provide provided where changes, additions, and and Transparency Act of 2006 flexible assistance to producers who apply appropriate conservation modifications identified herein are not OMB published two regulations, expressly mandated by Congress. measures to comply with Federal, State, codified at 2 CFR part 25 and 2 CFR part and Tribal environmental requirements. Unfunded Mandates Reform Act of 1995 170, to assist agencies and recipients of Because EQIP is a voluntary program, Federal financial assistance in Title 2 of the Unfunded Mandates the program will not impose any complying with the Federal Funding Reform Act of 1995 (UMRA) (2 U.S.C. obligation or burden upon agricultural Accountability and Transparency Act of 1531–1538) requires Federal agencies to producers who choose not to 2006 (FFATA) (Pub. L. 109–282, as assess the effects of their regulatory participate. amended). Both regulations have actions on State, local, and Tribal EQIP has been authorized by the implementation requirements effective governments or the private sector of Congress in the 2014 Farm Bill at $8 as of October 1, 2010. $100 million or more in any 1 year. billion over the 5-year period beginning When such a statement is needed for a The regulations at 2 CFR part 25 in FY 2014 and proceeding through rule, section 205 of UMRA requires require, with some exceptions, 2018, with annual amounts of $1.35 agencies to prepare a written statement, recipients of Federal financial assistance billion in FY 2014, $1.60 billion in FY including a cost benefit assessment, for to apply for and receive a Dun and 2015, $1.65 billion in FY 2016, $1.65 proposed and final rules with ‘‘Federal Bradstreet Universal Numbering billion in FY 2017, and $1.75 billion in mandates’’ that may result in such Systems (DUNS) number and register in FY 2018. EQIP and WHIP had been expenditures for State, local, or Tribal the Central Contractor Registry (CCR). previously authorized under the 2008 governments, in the aggregate, or to the The regulations at 2 CFR part 170 Act with annual amounts of $1.32 private sector. UMRA generally requires establish new requirements for Federal billion for FY 2008, $1.37 billion in FY agencies to consider alternatives and financial assistance applicants, 2009, $1.55 billion in FY 2010, $1.66 adopt the more cost effective or least recipients, and sub-recipients. The billion in FY 2011, and $1.75 billion in burdensome alternative that achieves regulation provides standard wording FY 2012 to FY 2013. Despite this the objectives of the rule. that each agency must include in its authorization, EQIP and WHIP received This rule contains no Federal awarding of financial assistance that only $7.75 billion in funding from FY mandates, as defined under Title 2 of requires recipients to report information 2008 through FY 2013. Funds received UMRA, for State, local, and Tribal about first-tier sub-awards and annually over this period were $1.09 governments or the private sector. executive compensation under those billion in FY 2008, $1.15 billion in FY Therefore, a statement under section awards. 2009, $1.27 billion in FY 2010, $1.32 202 of UMRA is not required. The regulations at 2 CFR part 25 and billion in FY 2011, $1.45 billion in FY 2 CFR part 170 apply to EQIP financial 2012, and $1.47 billion in FY 2013. Executive Order 13132 assistance provided to entities and, Since the enactment of the 2014 Act NRCS has considered this final rule in therefore, these registration and EQIP received $1.35 billion, the full accordance with Executive Order 13132, reporting requirements will continue to amount authorized in FY 2014, but only issued August 4, 1999, and has include in the requisite provisions as $1.347 billion in FY 2015 rather the

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$1.60 billion authorized by the 2014 other uses. Wind erosion control through FY 2013 by 24 percent on an Act. practices improve air quality and some annualized basis to $1.6 billion per year. The 1985 Act, as amended by the practices increase carbon in the soil From FY 2008 through FY 2013, the 2014 Act, makes several changes to profile. Wildlife habitat conservation authorized level for EQIP and WHIP was EQIP. The changes include practices increase wildlife habitat, a total of $9.585 billion, but annual consolidating elements of the former enhance scenic value, and provide restrictions on EQIP and WHIP WHIP into EQIP, expanding opportunities for recreation. A obligations enacted in the annual participation among military veteran definition of ‘‘habitat development’’ was appropriations bills resulted in the farmers or ranchers, requiring that funds added and adopted to encompass the actual authority being $7.748 billion, for provided in advance that are not conservation practices that support the an annualized amount of $1.291 billion. expended during the 90-day period wildlife habitat activities authorized by In contrast, the authorized level for beginning on the date of receipt of funds section 1240B(g) of the 2014 Act. The EQIP under the 2014 Act for FY 2014 be returned, establishing an overall term, as originally defined in the WHIP through FY 2018 is $8 billion, for an payment limitation over FY 2014 regulation, is added to EQIP at section annualized amount of $1.6 billion (this through FY 2018 of $450,000, providing 1466.3, ‘‘Definitions.’’ The definition, assumes future funding caps are set at that EQIP funding authorized by the consistent with EQIP authority to assist the authorized amounts). Actual 2014 Act remains available until with implementation of conservation authority for EQIP funding in FY 2014 expended, and requiring that at least 5 practices that include the specific of $1.350 billion matched the amount percent of available EQIP funds to be technical purpose of habitat authorized in the 2014 Act while targeted for wildlife conservation development, provides for the restrictions limited actual EQIP funding practices for each fiscal year from 2014 conservation of wildlife species. in FY 2015 to $1.347 million. These to 2018. This 5 percent for wildlife Other impacts of conservation changes reduce the authorized level of habitat practices is based upon the total practices may accrue to the producer. spending for EQIP for FY 2014 through EQIP funding allocated as financial Examples of these impacts include the FY 2018 to $7.747 million. assistance available nationally for maintenance of the long-term Additionally, the 2014 Act changed the producer contracts. Based upon productivity of the land, improved period of availability for EQIP funding historical expenditures of wildlife- irrigation efficiency, improved grazing from 1-year to no-year funding, which related practices in both WHIP and productivity, more efficient crop use of means the funds remain available until EQIP, and with emphasis to prioritize animal waste and fertilizer, and expended. Thus, any unobligated funding applications that address increased profits from energy balance at the end of a fiscal year could wildlife resource concerns, the agency conservation. be available for obligation in the anticipates that the actual funding Most of this rule’s impacts consist of subsequent year. It is estimated that the associated with developing wildlife transfer payments from the Federal conservation practices implemented practices through EQIP will exceed the government to producers. While those with this funding will continue to 5 percent national target. In FY 2014, transfers create incentives that very contribute to reductions of water and about 6.5 percent of EQIP funds ($60.8 likely cause changes in the way society wind erosion on cropland, pasture, and million) were devoted to wildlife uses its resources, we lack data with rangeland; reduce nutrient losses to conservation practices. Seven percent of which to quantify the resulting social streams, rivers, lakes, and estuaries; EQIP funds are available for eligible costs or benefits. Given the existing increase wildlife habitat; and provide RCPP contracts. Additional explanation limitation and lack of data, NRCS will other private and public environmental regarding funding pools and EQIP investigate ways to quantify the benefits. It is also expected that program priorities is provided in the incremental benefits obtained from this continued implementation of practices Background section of the preamble. program. Despite the limitations on our which treat and manage animal waste EQIP technical assistance and ability to quantify and estimate the through EQIP will directly contribute to financial assistance facilitates the value of social costs or benefits from the improvements in water quality and adoption of conservation practices that implementation of conservation associated improvements in air quality address natural resource concerns. practices, EQIP, as amended under the from, for example, reduction in Those practices improve on-site 2014 Act, is expected to positively affect emissions such as methane. NRCS resource conditions and produce offsite natural resources and mitigate estimates that the cost,1 from both environmental benefits for the public. environmental degradation. Results public and private sources, of Water erosion conservation practices from the national Conservation Effects implementing the conservation reduce the flow of pollutants off of Assessment Project conducted by NRCS practices with EQIP funding will be fields, thus improving freshwater and demonstrate that implementation of the $11,519 million dollars (FY 2014 marine water quality, including types of conservation practices funded through FY 2018). Cost estimates are protecting fish habitat, enhancing under EQIP reduce sediment and presented in Table 1 below. aquatic recreation opportunities, and nutrient loss from agricultural fields and reducing sedimentation of reservoirs, improve water quality nationwide. 1 The 2014 Act increases EQIP funding Public costs include total TA and FA funds streams, and drainage channels. More outlined in the Congressional Budget Office’s (CBO) efficient irrigation practices conserve over the amount provided by Congress scoring of the 2014 Act. Private costs are out-of- scarce water, making it available for for both EQIP and WHIP from FY 2008 pocket costs paid voluntarily by participants.

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TABLE 1—PROJECTED TECHNICAL ASSISTANCE AND TRANSFER PAYMENTS, AS AUTHORIZED, FY 2014–FY 2018 a

NRCS technical Transfer Public costs Private costs Total costs assistance payment

million $ million $ million $ million $ million $

FY 2014 b ...... $368.0 $982.0 $1,350.0 $654.6 $2,004.6 FY 2015 b ...... 360.0 987.0 1,347.0 657.9 2,004.9 FY 2016 ...... 445.5 1,204.5 1,650.0 803.6 2,453.6 FY 2017 ...... 445.5 1,204.5 1,650.0 803.6 2,453.6 FY 2018 ...... 472.5 1,277.5 1,750.0 852.2 2,602.2

Total ...... 2,090.5 5,655.5 7,747.0 3,779.2 11,518.9 a Based on a historical average participant cost of 40 percent and a historical average technical assistance share of 27 percent. b FY 2014 and FY 2015 represent actual funds received.

Conclusions Authority: 15 U.S.C. 714b and 714c; 16 § 1466.20 Application for contracts and U.S.C. 3839aa–3839–8. selecting applications. Program features of EQIP, except for * * * * * the increase in wildlife focus, remains ■ 2. Amend § 1466.2 by revising (b) In selecting EQIP applications, essentially unchanged from the 2008 paragraph (c) to read as follows: NRCS, with advice from the State Act. The increased funding over the § 1466.2 Administration. Technical Committee, Tribal period of FY 2014 through FY 2018 will Conservation Advisory Council, or local * * * * * increase the amount of conservation working group, may establish ranking applied by agricultural producers, (c) No delegation in the pools to address a specific resource support continued improvement in the administration of this part to lower concern, geographic area, or agricultural natural resource base (i.e. soil, water, organizational levels will preclude the operation type or develop an evaluation air, and wildlife), and mitigate Chief from making any determinations process to prioritize and rank agriculture’s potentially adverse effects under this part, re-delegating to other applications for funding that address on the environment. The statutory organizational levels, or from reversing national, State, and local priority requirement that at least 5 percent of or modifying any determination made resource concerns, taking into account available EQIP funding be targeted to under this part. Since EQIP is a covered the following guidelines: practices that address wildlife habitat program under the Regional (1) NRCS will select applications for will be met by focusing a portion of the Conservation Partnership Program funding based on applicant eligibility, funding on applications that address (RCPP), the Chief may modify or waive fund availability, and the NRCS wildlife resource concerns. a discretionary provision of this part evaluation process. NRCS will rank Overall, the conservation effects with respect to contracts entered into applications according to the following resulting from transferring $5.7 billion under RCPP if the Chief determines that factors related to conservation benefits to producers and providing $2.1 billion such an adjustment is necessary to to address identified resource concerns in technical assistance from FY 2014 achieve the purposes of EQIP. through implementation of conservation through FY 2018 will be reflected in Consistent with section 1271C(c)(3) of practices: nine primary resource categories and the Food Security Act of 1985, the Chief * * * * * lead to improvements in cropland and may also waive the applicability of the (5) The evaluation process will grazing land productivity, water quality, Adjusted Gross Income (AGI) limitation determine the order in which air quality, water use efficiency, energy in section 1001D(b)(2) of the Food applications will be selected for use efficiency, carbon sequestration and Security Act of 1985 for program funding. To improve administrative wildlife habitat. participants if the Chief determines that efficiency, NRCS may use screening the waiver is necessary to fulfill RCPP List of Subjects in 7 CFR Part 1466 factors as part of its evaluation process objectives. that may include sorting applications Agricultural operations, Animal * * * * * into high, medium, or low priority. If feeding operations, Conservation ■ 3. Amend § 1466.7 by revising screening factors are used to designate payments, Conservation practices, paragraph (e) to read as follows: a higher priority for ranking, all eligible Contract, Forestry management, Natural applications with a higher priority and resources, Payment rates, Soil and water § 1466.7 EQIP plan of operations. that address an eligible resource conservation, Soil quality, Water quality * * * * * concern are ranked and considered for and water conservation, Wildlife. (e) If an EQIP plan of operations funding before ranking or considering Accordingly, the interim rule addresses forest land related resource for funding applications that are a lower amending 7 CFR part 1466, which was concerns, the participant must priority. The approving authority for published at 79 FR 73953 on December implement conservation practices EQIP contracts will be NRCS. 12, 2014, is adopted as a final rule with consistent with an approved forest * * * * * the following changes: management plan. ■ 5. Amend § 1466.21 by revising paragraph (b)(3)(v) to read as follows: PART 1466—ENVIRONMENTAL * * * * * QUALITY INCENTIVES PROGRAM ■ 4. Amend § 1466.20 by revising § 1466.21 Contract requirements. paragraphs (b) introductory text, (b)(1) * * * * * ■ 1. The authority citation for part 1466 introductory text, and (b)(5) to read as (b) * * * continues to read as follows: follows: (3) * * *

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(v) Implement conservation practices Signed this 26th day of April, 2016, in 14th Street & Pennsylvania Avenue consistent with an approved forest Washington, DC. NW., Room 2705, Washington, DC management plan when the EQIP plan Jason A. Weller, 20230. of operations includes forest-related Vice President, Commodity Credit FOR FURTHER INFORMATION CONTACT: practices that address resource concerns Corporation, and Chief, Natural Resources Eileen Albanese, Director, Office of Conservation Service. on NIPF, National Security and Technology * * * * * [FR Doc. 2016–10161 Filed 5–11–16; 8:45 am] Transfer Controls, Bureau of Industry BILLING CODE 3410–16–P ■ 6. Amend § 1466.25 by revising and Security, Telephone: (202) 482– paragraphs (b) through (d), 0092, Email: eileen.albanese@ redesignating paragraph (e) as paragraph bis.doc.gov. DEPARTMENT OF COMMERCE (f), and adding a new paragraph (e) to SUPPLEMENTARY INFORMATION: The read as follows: Bureau of Industry and Security Bureau of Industry and Security (BIS) is amending the Export Administration § 1466.25 Contract modifications and Regulations (EAR) to comply with the transfers of land. 15 CFR Parts 730, 740, 742, 744, 746, 754, 762, 772, and 774 requirements of Division O, Title 1, * * * * * Section 101 of Public Law 114–113 (the (b) Within the time specified in the [Docket No. 160302175– 6175– 01] Consolidated Appropriations Act, 2016) contract, the participant must provide RIN 0694–AG83 concerning exports of crude oil from the NRCS with written notice regarding any United States. These provisions repeal voluntary or involuntary loss of control Removal of Short Supply License Section 103 of the Energy Policy and of any acreage under the EQIP contract, Requirements on Exports of Crude Oil Conservation Act (formerly, 42 U.S.C. which includes changes in a 6212), which required that the President AGENCY: participant’s ownership structure or Bureau of Industry and promulgate a rule prohibiting the export corporate form. Failure to provide Security, Commerce. of crude oil, and mandate, instead, that timely notice will result in termination ACTION: Final rule. ‘‘notwithstanding any other provision of of the entire contract. SUMMARY: The Bureau of Industry and law, except as provided in subsections (c) Unless NRCS approves a transfer Security (BIS) publishes this final rule (c) and (d) . . . no official of the Federal of contract rights under this paragraph to amend the Export Administration Government shall impose or enforce any (c), a participant losing control of any Regulations (EAR) to remove the short restriction on the export of crude oil.’’ acreage will constitute a violation of the supply license requirements that, prior Consistent with this requirement, this EQIP contract and NRCS will terminate to the entry into force of the final rule amends part 754 of the EAR the contract and require a participant to ‘‘Consolidated Appropriations Act, by removing and reserving § 754.2, refund all or a portion of any financial 2016’’ on December 18, 2015, applied to which described the short supply assistance provided. NRCS may approve exports of crude oil from the United license requirements and licensing a transfer of the contract if: States. Specifically, this rule removes policies that applied to exports of crude (1) NRCS receives written notice that the Commerce Control List (CCL) entry oil from the United States to all destinations. This rule also amends the identifies the new producer who will and the corresponding short supply Commerce Control List (CCL) in take control of the acreage, as required provisions in the EAR that required a Supplement No. 1 to part 774 of the in paragraph (d) of this section; license from BIS to export crude oil EAR by removing Export Control (2) The new producer meets program from the United States. This rule also Classification Number (ECCN) 1C981, eligibility requirements within a amends certain other EAR provisions to which controlled crude petroleum, reasonable time frame, as specified in reflect the removal of these short supply including reconstituted crude the EQIP contract; license requirements. The changes made petroleum, tar sands and crude shale oil (3) The new producer agrees to by this rule are intended to bring the listed in Supplement No. 1 to part 754 assume the rights and responsibilities provisions of the EAR into full of the EAR (Crude Petroleum and for the acreage under the contract; and compliance with the act, which Petroleum Products). In addition, this (4) NRCS determines that the mandates that, apart from certain rule moves the definition of ‘‘crude oil,’’ purposes of the program will continue exemptions specified therein, ‘‘no which previously appeared in § 754.2(a) to be met despite the original official of the Federal Government shall of the EAR, to § 772.1 (Definitions of participant’s losing control of all or a impose or enforce any restriction on the terms as used in the Export portion of the land under contract. export of crude oil.’’ Consistent with the Administration Regulations (EAR)), exceptions in the act, exports of crude (d) Until NRCS approves the transfer because it continues to have relevance oil continue to require authorization of contract rights, the new producer is with respect to the end-user/end-use from BIS to embargoed or sanctioned not a participant in the program and requirements in part 744 of the EAR and countries or persons and to persons may not receive payment for the embargoes and other special subject to a denial of export privileges. conservation activities commenced controls in part 746 of the EAR. The prior to approval of the contract DATES: This rule is effective May 12, scope of this definition remains transfer. 2016. unchanged. (e) NRCS may not approve a contract ADDRESSES: Send comments regarding The effect of the changes described transfer and may terminate the contract this collection of information, including above is to remove the short supply in its entirety if NRCS determines that suggestions for reducing the burden, to license requirements previously the loss of control is voluntary, the new Jasmeet Seehra, Office of Management applicable to crude oil, as controlled producer is not eligible or willing to and Budget (OMB), by email to Jasmeet_ under ECCN 1C981, thereby making assume responsibilities under the [email protected], or by fax to crude oil an EAR99 item (i.e., subject to contract, or the purposes of the program (202) 395–7285; and to the Regulatory the EAR, as described in § 734.3(a), but cannot be met. Policy Division, Bureau of Industry and no longer listed on the CCL). As such, * * * * * Security, Department of Commerce, crude oil exports will now be treated

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similarly to exports of petroleum 30 U.S.C. 185(u), and 43 U.S.C. 1354 Security, Department of Commerce, as products listed in Supplement No. 1 to from parts 730, 754, and 774 of the EAR. indicated in the ADDRESSES section of part 754 that have not been produced or Although the Export Administration this rule. derived from the Naval Petroleum Act expired on August 20, 2001, the 3. This rule does not contain policies Reserves (NPR) or become available for President, through Executive Order with Federalism implications as that export as a result of an exchange of any 13222 of August 17, 2001, 3 CFR, 2001 term is defined in Executive Order NPR produced or derived commodities Comp., p. 783 (2002), as amended by 13132. (such petroleum products are not Executive Order 13637 of March 8, 4. The provisions of the controlled under ECCN 1C980, 1C982, 2013, 78 FR 16129 (March 13, 2013), Administrative Procedure Act (APA) (5 1C983, or 1C984 on the CCL, but are and as extended by the Notice of August U.S.C. 553) requiring notice of proposed designated as EAR99 items, instead). As 7, 2015 (80 FR 48233 (Aug. 11, 2015)), rulemaking and the opportunity for an EAR99 item, crude oil remains has continued the Export public participation are waived for good subject to the EAR, as described in Administration Regulations in effect cause, because they are ‘‘unnecessary’’ § 734.3(a) of the EAR, and exports of under the International Emergency and ‘‘contrary to the public interest.’’ crude oil continue to require Economic Powers Act (50 U.S.C. 1701 et (See 5 U.S.C. 553(b)(B)). This rule brings authorization from BIS to embargoed or seq.). BIS continues to carry out the the Export Administration Regulations sanctioned countries or persons and to provisions of the Export Administration (EAR) into conformity with the persons subject to a denial of export Act, as appropriate and to the extent Congressional mandate in Division O, privileges, as described in parts 744, permitted by law, pursuant to Executive Title 1, Section 101 of Public Law 114– 746, and 764 of the EAR. The Order 13222 as amended by Executive 113, which states that ‘‘notwithstanding continuance of these EAR controls is Order 13637. any other provision of law, except as provided in subsections (c) and (d) . . . consistent with the exemptions stated in Rulemaking Requirements Division O, Title 1, Section 101, no official of the Federal Government 1. Executive Orders 13563 and 12866 subsections (c) and (d) of Public Law shall impose or enforce any restrictions direct agencies to assess all costs and 114–113. on the export of crude oil.’’ A delay of benefits of available regulatory this rulemaking to allow for notice and This final rule also amends certain alternatives and, if regulation is public comment would be other provisions in the EAR to reflect necessary, to select regulatory ‘‘unnecessary,’’ within the context of the the removal of the short supply license approaches that maximize net benefits APA, because continuance of the requirements on crude oil. Specifically, (including potential economic, controls in § 754.2 of the EAR would be this rule makes additional amendments environmental, public health and safety contrary to the explicit mandate in to part 754 by removing and reserving effects, distributive impacts, and Public Law 114–113 against the paragraph (b)(1)(i) in § 754.1 and by equity). Executive Order 13563 imposition or enforcement of any removing and reserving Supplement No. emphasizes the importance of restriction on the export of crude oil by 3 to part 754 (Statutory Provisions quantifying both costs and benefits, of an official of the Federal Government. Dealing with Exports of Crude Oil). This reducing costs, of harmonizing rules, Under such circumstances, the public rule also removes references to § 754.2 and of promoting flexibility. This rule interest would not be served by from Supplement No. 1 to part 730 and has been designated a ‘‘significant soliciting comments on the removal of § 762.2(b)(39). In addition, this rule regulatory action,’’ although not these controls. A delay of this amends § 740.15 (License Exception economically significant, under section rulemaking to allow for notice and AVS) by removing the parenthetical 3(f) of Executive Order 12866. public comment also would be reference to § 754.2 from § 740.15(b)(3) Accordingly, the rule has been reviewed ‘‘contrary to the public interest,’’ within and by removing the Note to paragraph by the Office of Management and the context of the APA, because (c)(3), which also referenced § 754.2. Budget. continuance of the controls in § 754.2 of This rule also removes references to 2. Notwithstanding any other the EAR would result in unnecessary ECCN 1C981 from § 742.1(b)(1) and provision of law, no person is required confusion due to the obvious § 746.7(a)(1) of the EAR. In § 744.7 to respond to, nor shall any person be contradiction between the short supply (Restrictions on Certain Exports to and subject to a penalty for failure to comply license requirements for crude oil, as for the use of Certain Foreign Vessels or with, a collection of information subject described in § 754.2 of the EAR prior to Aircraft), paragraphs (b)(3)(i) and (ii) are to the requirements of the Paperwork the publication of this rule, and the revised to remove the exclusions that Reduction Act of 1995 (44 U.S.C. 3501 Congressional mandate in Public Law previously applied to crude oil and et seq.) (PRA), unless that collection of 114–113, which prohibits such license blends of crude oil with other petroleum information displays a currently valid requirements. Furthermore, the products, because such items were Office of Management and Budget confusion resulting from any delay to subject to the short supply controls (OMB) Control Number. This rule allow for notice and comment would be described in § 754.2 of the EAR. contains a collection of information contrary to the public interest, as stated Finally, this rule removes authority subject to the requirements of the PRA. in Public Law 114–113, which is ‘‘to citations for statutory provisions dealing This collection has been approved by promote the efficient exploration, with restrictions on the exports of crude OMB under Control Number 0694–0088 production, storage, supply, marketing, oil, which no longer provide BIS with (Multi-Purpose Application), which pricing, and regulation of energy enforcement authority, based on carries a burden hour estimate of 58 resources, including fossil fuels.’’ Division O, Title 1, Section 101, minutes to prepare and submit form Specifically, the obvious contradiction subsection (b) of Public Law 114–113, BIS–748. Send comments regarding this between the requirements previously which prohibits officials of the Federal burden estimate or any other aspect of described in § 754.2 of the EAR and the Government from imposing or enforcing this collection of information, including mandate in Public Law 114–113 might any restriction on the export of crude oil suggestions for reducing the burden, to discourage some persons from pursuing ‘‘notwithstanding any other provision of Jasmeet Seehra, Office of Management crude oil export opportunities, thereby law.’’ Specifically, this rule removes the and Budget, and to the Regulatory resulting in significant economic losses authority citations to 30 U.S.C. 185(s), Policy Division, Bureau of Industry and due to lost sales. At best, the confusion

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caused by this contradiction likely List of Subjects PART 730—[AMENDED] would result in unnecessary delays, 15 CFR Part 730 which also can involve significant ■ 1. The authority citation for part 730 economic costs. Administrative practice and is revised to read as follows: The provision of the Administrative procedure, Advisory committees, Procedure Act (APA) (5 U.S.C. 553) Exports, Reporting and recordkeeping Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. requiring a 30-day delay in effectiveness requirements, Strategic and critical 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 2151 note; is also waived for good cause. (5 U.S.C. materials. 553(d)(3)). The amendments to the EAR 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 contained in this final rule are required 15 CFR Part 740 U.S.C. 2139a; 15 U.S.C. 1824a; 50 U.S.C. to make the EAR conform to the 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; Administrative practice and E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., Congressional mandate in Public Law procedure, Exports, Reporting and p. 114; E.O. 12002, 42 FR 35623, 3 CFR, 1977 114–113, which states that ‘‘except as recordkeeping requirements. Comp., p. 133; E.O. 12058, 43 FR 20947, 3 provided in subsections (c) and (d) . . . 15 CFR Part 742 CFR, 1978 Comp., p. 179; E.O. 12214, 45 FR no official of the Federal Government 29783, 3 CFR, 1980 Comp., p. 256; E.O. shall impose or enforce any restrictions Administrative practice and 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. on the export of crude oil.’’ A delay of procedure, Chemicals, Exports, Foreign 608; E.O. 12854, 58 FR 36587, 3 CFR, 1993 this rulemaking to allow for a 30-day trade, Reporting and recordkeeping Comp., p. 179; E.O. 12918, 59 FR 28205, 3 delay in effectiveness would be requirements. CFR, 1994 Comp., p. 899; E.O. 12938, 59 FR ‘‘unnecessary,’’ within the context of the 59099, 3 CFR, 1994 Comp., p. 950; E.O. APA, because continuance of the 15 CFR Part 744 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. controls in § 754.2 of the EAR would be Exports, Foreign trade, Reporting and 356; E.O. 12981, 60 FR 62981, 3 CFR, 1995 contrary to the explicit mandate in recordkeeping requirements. Comp., p. 419; E.O. 13020, 61 FR 54079, 3 Public Law 114–113 and, as such, CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR would not serve the public interest. A 15 CFR Part 746 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. delay of this rulemaking to allow for a Exports, Reporting and recordkeeping 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 30-day delay in effectiveness, also requirements. would be ‘‘contrary to the public Comp., p. 783; E.O. 13224, 66 FR 49079, 3 interest,’’ within the context of the APA, 15 CFR Part 754 CFR, 2001 Comp., p. 786; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., p 168; E.O. because such a delay would result in Agricultural commodities, Exports, unnecessary confusion caused by the 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. Forests and forest products, Horses, 223; Notice of May 6, 2015, 80 FR 26815 contradiction between the EAR’s short Petroleum, Reporting and recordkeeping supply license requirements for crude (May 8, 2015); Notice of August 7, 2015, 80 requirements. oil and the Congressional mandate in FR 48233 (August 11, 2015); Notice of Public Law 114–113, as described 15 CFR Part 762 September 18, 2015, 80 FR 57281 (September 22, 2015); Notice of November 12, 2015, 80 above. In addition, any delay to allow Administrative practice and FR 70667 (November 13, 2015); Notice of for notice and comment would be procedure, Business and industry, January 20, 2016, 81 FR 3937 (January 22, contrary to the public interest, as stated Confidential business information, 2016). in Public Law 114–113 and reiterated Exports, Reporting and recordkeeping above. Supplement No. 1 to Part 730— Further, no other law requires that a requirements. [Amended] notice of proposed rulemaking and an 15 CFR Part 772 opportunity for public comment be ■ 2. Supplement No. 1 to part 730 is given for this final rule. Because a Exports. amended by revising the entries for notice of proposed rulemaking and an 15 CFR Part 774 Collection number ‘‘0694–0137’’ and opportunity for public comment are not Collection number ‘‘0607–0152’’ to read required to be given for this rule under Exports, Reporting and recordkeeping as follows: the Administrative Procedure Act or by requirements. Supplement No. 1 to Part 730— any other law, the analytical For the reasons stated in the Information Collection Requirements requirements of the Regulatory preamble, parts 730, 740, 742, 744, 746, Under the Paperwork Reduction Act: Flexibility Act (5 U.S.C. 601 et seq.) are 754, 762, 772, and 774 of the Export OMB Control Numbers not applicable. Therefore, this Administration Regulations (15 CFR regulation is issued in final form. parts 730–774) are amended as follows: * * * * *

Collection No. Title Reference in the EAR

******* 0694–0137 ...... License Exceptions and Exclusions ...... § 734.4, Supplement No. 2 to part 734, §§ 740.3(d), 740.4(c), 740.9(a)(2)(viii)(B), 740.9(c), 740.13(e), 740.12(b)(7), 740.17, 740.18, Supp. No. 2 to part 740, §§ 742.15, 743.1, 743.3, 754.4, 762.2(b) and Supplement No. 1 to part 774. 0607–0152 ...... Automated Export System (AES) Pro- §§ 740.1(d), 740.3(a)(3), 754.4(c), 758.1, 758.2, and 758.3 of the EAR. gram.

PART 740—[AMENDED] Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. Comp., p. 783; Notice of August 7, 2015, 80 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. FR 48233 (August 11, 2015). 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. ■ 3. The authority citation for part 740 ■ 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 4. Section 740.15 is amended by continues to read as follows: revising paragraph (b)(3) introductory

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text and by removing the note to § 744.7 Restrictions on certain exports to Supplement No. 1 to Part 754—Crude paragraph (c)(3). and for the use of certain foreign vessels Petroleum and Petroleum Products or aircraft. The revision reads as follows: This Supplement provides relevant * * * * * Schedule B numbers and commodity § 740.15 Aircraft, vessels, and spacecraft (b) * * * (AVS). (3) * * * descriptions for crude oil (EAR99) and (i) Fuel, including crude oil, for petroleum products other than crude * * * * * oil that are controlled by ECCN 1C980, (b) * * * petroleum products other than crude oil that are of non-Naval Petroleum 1C982, 1C983, or 1C984. * * * (3) Ship and plane stores. Usual and Reserves origin or derivation (see * * * * * reasonable kinds and quantities of the § 754.3 of the EAR), and blends of crude following commodities may be exported Supplement No. 3 to Part 754— oil with such petroleum products; [Removed and Reserved] for use or consumption on board an (ii) Deck, engine, and steward aircraft or vessel of any registry during department stores, provisions, and ■ 15. Supplement No. 3 to part 754 is the outgoing and immediate return supplies for both port and voyage removed and reserved. flight or voyage. requirements, provided that any * * * * * petroleum products other than crude oil PART 762—[AMENDED] which are listed in Supplement No. 1 to ■ 16. The authority citation for part 762 PART 742—[AMENDED] part 754 of the EAR are of non-Naval continues to read as follows: Petroleum Reserves origin or derivation ■ 5. The authority citation for part 742 (see § 754.3 of the EAR); Authority: 50 U.S.C. 4601 et seq.; 50 continues to read as follows: U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, * * * * * Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 3 CFR, 2001 Comp., p. 783; Notice of August 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. PART 746—[AMENDED] 7, 2015, 80 FR 48233 (August 11, 2015). 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; § 762.2 [Amended] Sec. 1503, Pub. L. 108–11, 117 Stat. 559; E.O. ■ 9. The authority citation for part 746 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. continues to read as follows: ■ 17. Section 762.2 is amended by 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 removing and reserving paragraph Comp., p. 608; E.O. 12938, 59 FR 59099, 3 Authority: 50 U.S.C. 4601 et seq.; 50 (b)(39). CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR U.S.C. 1701 et seq.; 22 U.S.C. 287c; Sec 1503, 58767, 3 CFR, 1996 Comp., p. 228; E.O. Pub. L. 108–11, 117 Stat. 559; 22 U.S.C. 6004; PART 772—[AMENDED] 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 783; Presidential Determination 2003–23, 68 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. ■ 18. The authority citation for part 772 614; E.O. 12918, 59 FR 28205, 3 CFR, 1994 FR 26459, 3 CFR, 2004 Comp., p. 320; Notice continues to read as follows: of August 7, 2015, 80 FR 48233 (August 11, Comp., p. 899; E.O. 13222, 66 FR 44025, 3 2015); Notice of November 12, 2015, 80 FR CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR Authority: 50 U.S.C. 4601 et seq.; 50 70667 (November 13, 2015). 26751, 3 CFR, 2004 Comp., p 168; U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, Presidential Determination 2003–23, 68 FR 3 CFR, 2001 Comp., p. 783; Notice of August § 742.1 [Amended] 26459, 3 CFR, 2004 Comp., p. 320; 7, 2015, 80 FR 48233 (August 11, 2015). Presidential Determination 2007–7, 72 FR ■ 19. Section 772.1 is amended by ■ 6. In § 742.1, remove the phrase 1899, 3 CFR, 2006 Comp., p. 325; Notice of ‘‘1C981 (Crude petroleum, including May 6, 2015, 80 FR 26815 (May 8, 2015); adding in alphabetical order a definition reconstituted crude petroleum, tar Notice of August 7, 2015, 80 FR 48233 for crude oil to read as follows: sands, and crude shale oil);’’ where it (August 11, 2015). § 772.1 Definitions of terms as used in the appears in the second sentence of § 746.7 [Amended] Export Administration Regulations (EAR). paragraph (b)(1). ■ 10. In § 746.7, remove ‘‘1C981,’’ where * * * * * Crude oil. A mixture of hydrocarbons PART 744—[AMENDED] it appears in paragraph (a)(1). that existed in liquid phase in ■ PART 754—[AMENDED] underground reservoirs, remains liquid 7. The authority citation for part 744 at atmospheric pressure (after passing continues to read as follows: ■ 11. The authority citation for part 754 through surface separating facilities), Authority: 50 U.S.C. 4601 et seq.; 50 is revised to read as follows: and has not been processed through a U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; crude oil distillation tower. Crude oil 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. includes reconstituted crude petroleum, U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, lease condensate, and liquid 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 7430(e); 15 U.S.C. 1824a; E.O. 11912, 41 FR 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 15825, 3 CFR, 1976 Comp., p. 114; E.O. hydrocarbons produced from tar sands, FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. gilsonite, and oil shale. Drip gases are 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 also included, but topped crude oil, 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 (August 11, 2015). residual oil, and other finished and Comp., p. 228; E.O. 13099, 63 FR 45167, 3 § 754.1 [Amended] unfinished oils are excluded. CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR * * * * * 44025, 3 CFR, 2001 Comp., p. 783; E.O. ■ 12. Section 754.1 is amended by 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. removing and reserving paragraph PART 774—[AMENDED] 786; Notice of August 7, 2015, 80 FR 48233 (b)(1)(i). (August 11, 2015); Notice of September 18, ■ § 754.2 [Removed] 20. The authority citation for part 774 2015, 80 FR 57281 (September 22, 2015); is revised to read as follows: Notice of November 12, 2015, 80 FR 70667 ■ 13. Section 754.2 is removed and Authority: 50 U.S.C. 4601 et seq.; 50 (November 13, 2015); Notice of January 20, reserved. 2016, 81 FR 3937 (January 22, 2016). U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. ■ 14. In Supplement No. 1 to part 754, 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et ■ 8. In § 744.7, revise paragraphs revise the first sentence in the seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15 (b)(3)(i) and (ii) to read as follows: introductory text to read as follows: U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201

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et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR opportunity for a hearing or to Administration (DEA) for public 58767, 3 CFR, 1996 Comp., p. 228; E.O. participate in a hearing must be inspection online at http:// 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. received on or before June 13, 2016. www.regulations.gov. Such information 783; Notice of August 7, 2015, 80 FR 48233 includes personal identifying (August 11, 2015). ADDRESSES: To ensure proper handling of comments, please reference ‘‘Docket information (such as your name, Supplement No. 1 to Part 774— No. DEA–435’’ on all correspondence, address, etc.) voluntarily submitted by [Amended] including any attachments. the commenter. The Freedom of • Electronic comments: The Drug Information Act (FOIA) applies to all ■ 21. In Supplement No. 1 to Part 774 Enforcement Administration encourages comments received. If you want to (the Commerce Control List), ECCN that all comments be submitted submit personal identifying information 1C981 is removed. electronically through the Federal (such as your name, address, etc.) as Dated: May 5, 2016. eRulemaking Portal, which provides the part of your comment, but do not want Eric L. Hirschhorn, ability to type short comments directly it to be made publicly available, you Under Secretary for Industry and Security. into the comment field on the Web page must include the phrase ‘‘PERSONAL [FR Doc. 2016–11047 Filed 5–11–16; 8:45 am] or attach a file for lengthier comments. IDENTIFYING INFORMATION’’ in the first paragraph of your comment. You BILLING CODE 3510–33–P Please go to http://www.regulations.gov and follow the online instructions at must also place all of the personal that site for submitting comments. Upon identifying information you do not want made publicly available in the first DEPARTMENT OF JUSTICE completion of your submission, you will receive a Comment Tracking Number for paragraph of your comment and identify Drug Enforcement Administration your comment. Please be aware that what information you want redacted. submitted comments are not If you want to submit confidential business information as part of your 21 CFR Part 1308 instantaneously available for public view on Regulations.gov. If you have comment, but do not want it to be made [Docket No. DEA–435] received a Comment Tracking Number, publicly available, you must include the phrase ‘‘CONFIDENTIAL BUSINESS Schedules of Controlled Substances: your comment has been successfully submitted and there is no need to INFORMATION’’ in the first paragraph Placement of Brivaracetam Into of your comment. You must also Schedule V resubmit the same comment. • Paper comments: Paper comments prominently identify the confidential business information to be redacted AGENCY: Drug Enforcement that duplicate the electronic submission Administration, Department of Justice. are not necessary and are discouraged. within the comment. Comments containing personal Should you wish to mail a paper ACTION: Interim final rule, with request identifying information and confidential comment in lieu of an electronic for comments. business information identified as comment, it should be sent via regular directed above will generally be made SUMMARY: The Drug Enforcement or express mail to: Drug Enforcement publicly available in redacted form. If a Administration is placing the substance Administration, Attn: DEA Federal comment has so much confidential brivaracetam ((2S)-2-[(4R)-2-oxo-4- Register Representative/ODW, 8701 business information or personal propylpyrrolidin-1-yl] butanamide) Morrissette Drive, Springfield, VA identifying information that it cannot be (also referred to as BRV; UCB–34714; 22152. effectively redacted, all or part of that Briviact) (including its salts) into • Hearing requests: All requests for comment may not be made publicly schedule V of the Controlled Substances hearing and waivers of participation available. Comments posted to http:// Act. This scheduling action is pursuant must be sent to: Drug Enforcement www.regulations.gov may include any to the Controlled Substances Act, as Administration, Attn: Administrator, personal identifying information (such revised by the Improving Regulatory 8701 Morrissette Drive, Springfield, as name, address, and phone number) Transparency for New Medical Virginia 22152. All requests for hearing included in the text of your electronic Therapies Act which was signed into and waivers of participation should also submission that is not identified as law on November 25, 2015. be sent to: (1) Drug Enforcement directed above as confidential. DATES: The effective date of this Administration, Attn: Hearing Clerk/LJ, An electronic copy of this document rulemaking is May 12, 2016. Interested 8701 Morrissette Drive, Springfield, and supplemental information, persons may file written comments on Virginia 22152; and (2) Drug including the complete Department of this rulemaking in accordance with 21 Enforcement Administration, Attn: DEA Health and Human Services and Drug CFR 1308.43(g). Electronic comments Federal Register Representative/ODW, Enforcement Administration eight-factor must be submitted, and written 8701 Morrissette Drive, Springfield, analyses, to this interim final rule are comments must be postmarked, on or Virginia 22152. available at http://www.regulations.gov before June 13, 2016. Commenters FOR FURTHER INFORMATION CONTACT: for easy reference. should be aware that the electronic Barbara J. Boockholdt, Office of Federal Docket Management System Diversion Control, Drug Enforcement Request for Hearing, Notice of will not accept comments after 11:59 Administration; Mailing Address: 8701 Appearance at Hearing, or Waiver of p.m. Eastern Time on the last day of the Morrissette Drive, Springfield, Virginia Participation in Hearing comment period. 22152; Telephone: (202) 598–6812. Pursuant to 21 U.S.C. 811(a), this Interested persons, defined at 21 CFR SUPPLEMENTARY INFORMATION: action is a formal rulemaking ‘‘on the 1300.01 as those ‘‘adversely affected or record after opportunity for a hearing.’’ aggrieved by any rule or proposed rule Posting of Public Comments Such proceedings are conducted issuable pursuant to section 201 of the Please note that all comments pursuant to the provisions of the Act (21 U.S.C. 811),’’ may file a request received are considered part of the Administrative Procedure Act (APA), 5 for hearing or waiver of hearing public record. They will, unless U.S.C. 551–559. 21 CFR 1308.41– pursuant to 21 CFR 1308.44. Requests reasonable cause is given, be made 1308.45; 21 CFR part 1316, subpart D. for hearing and waivers of an available by the Drug Enforcement In accordance with 21 CFR 1308.44(a)–

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(c), requests for a hearing, notices of treatment in the United States, and the within 90 days, issue an interim final appearance, and waivers of an degree of dependence the substance rule controlling the drug in accordance opportunity for a hearing or to may cause. 21 U.S.C. 812. The initial with such subsections and 21 U.S.C. participate in a hearing may be schedules of controlled substances 812(b) using the specified procedures. submitted only by interested persons, established by Congress are found at 21 For purposes of calculating the 90 days, defined as those ‘‘adversely affected or U.S.C. 812(c), and the current list of all Public Law 114–89 states that such date aggrieved by any rule or proposed rule scheduled substances is published at 21 shall be the later of the date on which issuable pursuant to section 201 of the CFR part 1308. the Attorney General receives the Act (21 U.S.C. 811).’’ 21 CFR 1300.01. Pursuant to 21 U.S.C. 811(a)(1), the scientific and medical evaluation and Requests for a hearing and notices of Attorney General may, by rule, ‘‘add to the scheduling recommendation from such a schedule or transfer between participation must conform to the the Secretary in accordance with such schedules any drug or other requirements of 21 CFR 1308.44(a) or subsection (b), or the date on which the (b), as applicable, and include a substance if he * * * finds that such Attorney General receives notification statement of the interest of the person in drug or other substance has a potential from the Secretary that the Secretary has the proceeding and the objections or for abuse, and * * * makes with respect approved an application under section issues, if any, concerning which the to such drug or other substance the person desires to be heard. Any waiver findings prescribed by subsection (b) of 505(c), 512, or 571 of the Federal Food, of an opportunity for a hearing must section 812 of this title for the schedule Drug, and Cosmetic Act or section conform to the requirements of 21 CFR in which such drug is to be placed 351(a) of the Public Health Service Act, 1308.44(c) including a written statement * * *’’ The Attorney General has or indexed a drug under section 572 of regarding the interested person’s delegated this scheduling authority the Federal Food, Drug, and Cosmetic position on the matters of fact and law under 21 U.S.C. 811 to the Act, with respect to the drug described involved in any hearing. Administrator of the DEA. 28 CFR in paragraph (1). Public Law 114–89 Please note that pursuant to 21 U.S.C. 0.100. further stipulates that a rule issued by 811(a), the purpose and subject matter The CSA provides that scheduling of the Attorney General under paragraph of the hearing are restricted to ‘‘(A) any drug or other substance may be (1) becomes immediately effective as an find[ing] that such drug or other initiated by the Attorney General (1) on interim final rule without requiring the substance has a potential for abuse, and her own motion; (2) at the request of the Attorney General to demonstrate good (B) mak[ing] with respect to such drug Secretary of Health and Human Services cause and requires that the interim final or other substance the findings (HHS); or (3) on the petition of any rule give interested persons the prescribed by subsection (b) of section interested party. 21 U.S.C. 811(a). This opportunity to comment and to request 812 of this title for the schedule in action imposes the regulatory controls a hearing. After the conclusion of such which such drug is to be placed. * * *’’ and administrative, civil, and criminal proceedings, the Attorney General must Requests for a hearing and waivers of sanctions of schedule V controlled issue a final rule in accordance with the participation in the hearing should be substances for any person who handles scheduling criteria of subsections 21 submitted to DEA using the address or proposes to handle BRV. U.S.C. 811(b), (c), and (d) of this section information provided above. The Improving Regulatory and 21 U.S.C. 812(b). Transparency for New Medical Legal Authority Therapies Act (Pub. L. 114–89) was Background The DEA implements and enforces signed into law on November 25, 2015. titles II and III of the Comprehensive This law amended 21 U.S.C. 811 and Brivaracetam ((2S)-2-[(4R)-2-oxo-4- Drug Abuse Prevention and Control Act states that in cases where a new drug is propylpyrrolidin-1-yl] butanamide) of 1970, as amended. 21 U.S.C. 801–971. (1) approved by the Department of (also referred to as BRV; UCB–34714; Titles II and III are referred to as the Health and Human Services (HHS) and Briviact) is a new molecular entity with ‘‘Controlled Substances Act’’ and the (2) HHS recommends control in CSA central nervous system (CNS) ‘‘Controlled Substances Import and schedule II–V, DEA shall issue an depressant properties. BRV is known to Export Act,’’ respectively, and are interim final rule scheduling the drug, be a high affinity ligand for the synaptic collectively referred to as the within 90 days. vesicle protein, SV2A, which is found ‘‘Controlled Substances Act’’ or the The law further states that the 90-day on excitatory synapses in the brain. On ‘‘CSA’’ for the purpose of this action. timeframe starts the later of (1) the date November 22, 2014, UCB Inc. (Sponsor) The DEA publishes the implementing DEA receives the HHS scientific and submitted three New Drug Applications regulations for these statutes in title 21 medical evaluation/scheduling (NDAs) to the U.S. Food and Drug of the Code of Federal Regulations recommendation or (2) the date DEA Administration (FDA) for the tablet, (CFR), chapter II. The CSA and its receives notice of drug approval by oral, and intravenous formulations of implementing regulations are designed HHS. In addition, the law specifies that BRV. The FDA accepted the NDA filings to prevent, detect, and eliminate the the rulemaking shall become for BRV on January 21, 2015. diversion of controlled substances and immediately effective as an interim final On March 28, 2016 the DEA received listed chemicals into the illicit market rule without requiring the DEA to notification that HHS/FDA approved while providing for the legitimate demonstrate good cause therefor. BRV as an add-on treatment to other medical, scientific, research, and Specifically, Public Law 114–89 medications to treat partial onset industrial needs of the United States. revised section 201 of the CSA (21 seizures in patients age 16 years and Controlled substances have the potential U.S.C. 811) by inserting after subsection older with epilepsy. for abuse and dependence and are (i) a new paragraph (j), which requires controlled to protect the public health that with respect to a drug referred to in Determination to Schedule BRV and safety. subsection (f), if the Secretary Under the CSA, controlled substances recommends that the Attorney General Pursuant to 21 U.S.C. 811(a)(1), are classified into one of five schedules control the drug in schedule II, III, IV, proceedings to add a drug or substance based upon their potential for abuse, or V pursuant to subsections (a) and (b), to those controlled under the CSA may their currently accepted medical use in the Attorney General is required to, be initiated by request of the Secretary

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of the HHS.1 On September 8, 2015, the action to lacasamide and ezogabine, BRV, there was an increase of drug HHS provided the DEA with a scientific which are both schedule V CNS likability, feeling of a high, and taking and medical evaluation document depressant anti-epileptics (AEDs). Based the drug again in comparison to prepared by the FDA entitled ‘‘Basis for on data submitted by the Sponsor in placebo. The HHS mentioned that the Recommendation to Place their NDAs, the HHS indicated that individuals who took BRV had fewer Brivaracetam in Schedule V of the administration of BRV in mice, rats, and sedative, euphoric, stimulant, dizziness, Controlled Substances Act.’’ Pursuant to dogs resulted in CNS depressant effects, and overall negative subjective effects 21 U.S.C. 811(b), this document including decreased locomotor activity compared to ALP. contained an eight-factor analysis of the and reactivity, motor incoordination, 3. The State of Current Scientific abuse potential of BRV as a new drug, and ataxia. Knowledge Regarding Brivaracetam: along with the HHS’ recommendation to BRV is not self-administered in The chemical name for brivaracetam is control BRV under schedule V of the animals and, unlike schedule IV (2S)-2-[(4R)-2-oxo-4-propylpyrrolidin-1- CSA. benzodiazepines and the schedule III yl] butanamide. Other names include In response, in December 2015, the AED perampanel, lacks pentobarbital- BRV and UCB–34714. The Chemical DEA reviewed the scientific and like (schedule II) discriminative Abstract Services number (CAS #) of medical evaluation and scheduling stimulus and reinforcing effects (HHS BRV is: 357336–20–0. BRV is a racetam recommendation provided by the HHS, review, 2015). In humans, BRV is most derivative.3 As the HHS noted, BRV along with all other relevant data, and similar to the schedule V AEDs does not have structural similarities to completed its own eight-factor review lacosamide, ezogabine, and pregabalin any other scheduled AED or to any document pursuant to 21 U.S.C. 811(c). in producing positive subjective effects major classes of abused sedative drugs The DEA concluded that BRV met the without producing sedation and with noted euphoric effects. Chemical 21 U.S.C. 812(b)(5) criteria for withdrawal following drug synthesis of BRV is considered highly placement in schedule V of the CSA. discontinuation that is observed with complex and includes several steps, Subsequently, on March 28, 2016, the schedule IV benzodiazepines. Based on reagents and specialized equipment. DEA received notification that HHS/ this collective evidence, the HHS BRV is readily soluble in water at up FDA approved three NDAs for BRV (see concluded that BRV has an abuse to 700 mg/mL. In an in vitro oral tablet Background section). potential that is most similar to AEDs in dissolution evaluation, BRV oral tablets Pursuant to the provisions of the schedule V. were placed in a buffer (pH 6.4) for 16 Improving Regulatory Transparency for 2. Scientific Evidence of the Drug’s hours. Approximately 86–96% of BRV New Medical Therapies Act (Pub. L. Pharmacological Effects, if Known: BRV was released after 16 hours in the buffer; 114–89), and based on the HHS selectively binds with high affinity to 14–30% of BRV was released following recommendation, NDA approvals by synaptic vesicle protein 2A (SV2A). It 1 hour and 40–66% BRV was released HHS/FDA, and DEA’s determination, produces reverse inhibition caused by after 4 hours. DEA is issuing this interim final rule to negative modulators of gamma Following oral ingestion, BRV is schedule brivaracetam ((2S)-2-[(4R)-2- aminobutyric acid (GABA) and glycine rapidly and completely absorbed. In oxo-4-propylpyrrolidin-1-yl] and inhibits sodium (Na+) channels. healthy young males, the half-life of butanamide) (including its salts) as a These sites appear to underlie BRV was determined to be controlled substance under the CSA. pharmacological activity of BRV. approximately 9 hours. According to the Included below is a brief summary of In rats, BRV at high doses partially HHS, the half-life of BRV is decreased each factor as analyzed by the HHS and generalizes to the schedule IV to 6 hours when a repeated oral dose of the DEA, and as considered by the DEA benzodiazepine chlordiazepoxide. BRV, 800 mg/day BRV is administered. The in its scheduling action. Please note that across a wide range of doses, neither HHS noted that BRV binds weakly to both the DEA and HHS analyses are initiates nor maintains self- plasma proteins and is extensively available in their entirety under administration in rats trained to self- metabolized through several pathways. ‘‘Supporting Documents’’ in the public administer cocaine. Human studies have Clearance through the kidneys docket for this interim final rule at reported that healthy individuals may represents 5–10% of the total clearance http://www.regulations.gov, under experience euphoria, sedation, and a and only 3–7% of the parent compound Docket Number ‘‘DEA–435.’’ Full drunken-like feeling following BRV (BRV) was detected in the urine. The analysis of, and citations to, the administration. When treatment- three main metabolites of BRV were information referenced in the summary emergent adverse events (TEAEs) 2 were detected in urine and according to the may also be found in the supporting and pooled across several clinical BRV HHS, these metabolites are relatively related material. studies, the most common TEAEs were inactive. One BRV metabolite was 1. The Drug’s Actual or Relative dizziness and sedative-related events characterized as having a potency that Potential for Abuse: BRV is a new such as fatigue, extreme drowsiness, was 20 times less than BRV, and this chemical entity and has not been and extreme weakness. In a human metabolite was not detected in human marketed in the United States or in any abuse potential study, the oral abuse plasma and represented less than 3% of other country; information on actual potential, safety, tolerability, and the dose in urine. abuse of BRV is not available. The HHS pharmacokinetics of BRV (50 mg, 200 4. Its History and Current Pattern of characterized BRV as related in its mg, and 1000 mg) were compared to 1.5 Abuse: As noted by the HHS, and 3.0 mg of the schedule IV CNS information on the history and current 1 As set forth in a memorandum of understanding depressant alprazolam (ALP) and pattern of abuse of BRV is not available entered into by the HHS, the FDA, and the National Institute on Drug Abuse (NIDA), the FDA acts as the placebo. When surveyed, for all doses of since this drug is currently not marketed lead agency within the HHS in carrying out the in any country. A review of the animal Secretary’s scheduling responsibilities under the 2 Treatment-emergent adverse event (TEAE): An and human data indicates that BRV has CSA, with the concurrence of the NIDA. 50 FR event or unexpected medical occurrence (e.g. an abuse potential similar to other 9518, Mar. 8, 1985. The Secretary of the HHS has adverse event) which first appears during treatment delegated to the Assistant Secretary for Health of with a drug or substance. TEAEs are typically schedule V AEDs. If BRV were to be the HHS the authority to make domestic drug absent prior to the onset of treatment or would have scheduling recommendations. 58 FR 35460, July 1, been exacerbated relative to pre-treatment 3 Racetams are a class of drugs that have a 1993. conditions. pyrrolidoline center.

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approved for medical use, the HHS Clinical studies have reported Requirements for Handling indicated that BRV would be abused for individuals experiencing increasing Brivaracetam its euphoric properties and other abuse- euphoria with increasing doses of BRV. BRV is subject to the CSA’s schedule related TEAEs that were reported in Tolerance does not appear to develop V regulatory controls and human clinical studies. Based on the with respect to BRV treatment on administrative, civil, and criminal available information, the HHS epileptic seizure reduction. sanctions applicable to the manufacture, concluded that the history and pattern 8. Whether the Substance is an distribution, reverse distribution, of abuse of BRV will be similar to other Immediate Precursor of a Substance dispensing, importing, exporting, schedule V CNS depressants. Already Controlled under the CSA: BRV research, and conduct of instructional 5. The Scope, Duration, and is not an immediate precursor of any activities and chemical analysis with, Significance of Abuse: As noted by the controlled substance. and possession involving schedule V HHS, information on the scope, Conclusion: After considering the duration, and significance of abuse of substances, including the following: scientific and medical evaluation 1. Registration. Any person who BRV is not available since this drug is conducted by the HHS, the HHS’ handles (manufactures, distributes, currently not marketed in any country. recommendation, and its own eight- Results from animal and human studies reverse distributes, dispenses, imports, factor analysis, the DEA has determined exports, engages in research, or suggest that there is abuse potential that these facts and all relevant data associated with BRV and if marketed in conducts instructional activities or constitute substantial evidence of a chemical analysis with, or possesses) the United States, it is likely that BRV potential for abuse of BRV. As such, the will be abused similar to other AEDs BRV, or who desires to handle BRV, DEA hereby schedules BRV as a must be registered with the DEA to that are CNS depressants. The HHS controlled substance under the CSA. stated that it is unlikely that epileptic conduct such activities pursuant to 21 individuals (the population expected to Determination of Appropriate Schedule U.S.C. 822, 823, 957, and 958 and in accordance with 21 CFR parts 1301 and take this drug) will abuse BRV. The The CSA outlines the findings HHS concluded that based on abuse 1312. Any person who currently required to place a drug or other handles BRV, and is not registered with potential similarities between BRV and substance in any particular schedule (I, other schedule V AEDs, it is likely that the DEA, must submit an application for II, III, IV, or V). 21 U.S.C. 812(b). After registration and may not continue to the scope, duration, and significance of consideration of the analysis and abuse of BRV will be similar to these handle BRV, unless the DEA has recommendation of the Assistant approved that application for compounds. Secretary for Health of the HHS and 6. What, if any, Risk There is to the registration, pursuant to 21 U.S.C. 822, review of all available data, the Acting Public Health: The HHS characterized 823, 957, and 958, and in accordance Administrator of the DEA, pursuant to BRV’s drug abuse potential to be similar with 21 CFR parts 1301 and 1312. 21 U.S.C. 812(b)(5), finds that: to schedule V AEDs. As such, the public 2. Disposal of stocks. Any person who health risk with BRV will also be similar 1. BRV has a low potential for abuse does not desire or is not able to obtain to other schedule V AEDs. The HHS relative to the drugs or other substances a schedule V registration must surrender noted that if BRV were approved for in schedule IV. The overall abuse all quantities of currently held BRV, or medical use, it would be abused for its potential of BRV is comparable to may transfer all quantities of currently rewarding properties. In healthy schedule V controlled substances such held BRV to a person registered with the volunteers administered 600 mg or as ezogabalin, pregabalin, and DEA in accordance with 21 CFR part higher of BRV, cognitive and motor lacosamide; 1317, in additional to all other impairment and sedation were 2. With FDA’s approval of the new applicable federal, state, local, and tribal observed. It is unknown how BRV drug applications, BRV has a currently laws. would interact in combination with accepted medical use in the United 3. Security. BRV is subject to schedule other CNS depressants and if the States as adjunctive treatment of partial III–V security requirements and must be sedative effects would be additive or onset seizures in epileptic individuals handled and stored pursuant to 21 even a lethal combination. In an ages 16 and older; and U.S.C. 821, 823, and 871(b), and in interaction study with BRV and 3. Human and animal studies accordance with 21 CFR 1301.71– intravenous ethanol in healthy demonstrate that BRV has limited 1301.93. individuals, it was determined that BRV psychological dependence and does not 4. Labeling and Packaging. All labels, enhanced the effects of ethanol. appear to have physical dependence. labeling, and packaging for commercial 7. Its Psychic or Physiological There was no evidence of physical containers of BRV must comply with 21 Dependence Liability: BRV has limited dependence associated with BRV in U.S.C. 825 and 958(e), and be in psychological dependence and does not human and animal studies since there accordance with 21 CFR part 1302. appear to have physical dependence. have been no reports of withdrawal 5. Inventory. Every DEA registrant When rats were administered BRV for syndromes or other physical who possesses any quantity of BRV 30 days, no signs of physical dependence effects. Based on these data, must take an inventory of BRV on hand, dependence were noted in comparison abuse of BRV may lead to limited pursuant to 21 U.S.C. 827 and 958, and to the schedule IV comparator, psychological dependence similar to in accordance with 21 CFR 1304.03, chlordiazepoxide. Similarly, in human schedule V AEDs but less than that of 1304.04, and 1304.11. clinical studies with healthy volunteers, drugs in schedule IV. Any person who becomes registered there were no reports or adverse events Based on these findings, the Acting with the DEA must take an initial that noted physical dependence or a Administrator of the DEA concludes inventory of all stocks of controlled withdrawal syndrome associated with that brivaracetam ((2S)-2-[(4R)-2-oxo-4- substances (including BRV) on hand on BRV use. The low potential for physical propylpyrrolidin-1-yl] butanamide) the date the registrant first engages in dependence observed with BRV is (also referred to as BRV; UCB–34714; the handling of controlled substances, consistent with other schedule V AEDs. Briviact), including its salts, warrants pursuant to 21 U.S.C. 827 and 958, and There is limited evidence for control in schedule V of the CSA. 21 in accordance with 21 CFR 1304.03, psychological dependence with BRV. U.S.C. 812(b)(5). 1304.04, and 1304.11.

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After the initial inventory, every DEA principles reaffirmed in Executive Order private sector, of $100,000,000 or more registrant must take a new inventory of 13563. (adjusted for inflation) in any one year.’’ all stocks of controlled substances Therefore, neither a Small Government Executive Order 12988, Civil Justice (including BRV) on hand every two Agency Plan nor any other action is Reform years, pursuant to 21 U.S.C. 827 and required under UMRA of 1995. 958, and in accordance with 21 CFR This regulation meets the applicable Paperwork Reduction Act of 1995 1304.03, 1304.04, and 1304.11. standards set forth in sections 3(a) and 6. Records and Reports. Every DEA 3(b)(2) of Executive Order 12988 to This action does not impose a new registrant must maintain records and eliminate drafting errors and ambiguity, collection of information requirement submit reports for BRV, or products minimize litigation, provide a clear legal under the Paperwork Reduction Act of containing BRV, pursuant to 21 U.S.C. standard for affected conduct, and 1995. 44 U.S.C. 3501–3521. This action 827 and 958(e), and in accordance with promote simplification and burden would not impose recordkeeping or 21 CFR parts 1304, 1312, and 1317. reduction. reporting requirements on State or local 7. Prescriptions. All prescriptions for Executive Order 13132, Federalism governments, individuals, businesses, or BRV or products containing BRV must organizations. An agency may not comply with 21 U.S.C. 829, and be This rulemaking does not have conduct or sponsor, and a person is not issued in accordance with 21 CFR parts federalism implications warranting the required to respond to, a collection of 1306 and 1311, subpart C. application of Executive Order 13132. information unless it displays a 8. Importation and Exportation. All The rule does not have substantial currently valid OMB control number. importation and exportation of BRV direct effects on the States, on the must be in compliance with 21 U.S.C. relationship between the national Congressional Review Act government and the States, or on the 952, 953, 957, and 958, and in This rule is not a major rule as distribution of power and accordance with 21 CFR part 1312. defined by section 804 of the Small responsibilities among the various 9. Liability. Any activity involving Business Regulatory Enforcement levels of government. BRV not authorized by, or in violation Fairness Act of 1996 (Congressional of, the CSA or its implementing Executive Order 13175, Consultation Review Act (CRA)). This rule will not regulations, is unlawful, and may and Coordination With Indian Tribal result in: An annual effect on the subject the person to administrative, Governments economy of $100,000,000 or more; a civil, and/or criminal sanctions. This rule does not have tribal major increase in costs or prices for Regulatory Analyses implications warranting the application consumers, individual industries, Federal, State, or local government Administrative Procedure Act of Executive Order 13175. It does not have substantial direct effects on one or agencies, or geographic regions; or Public Law 114–89 was signed into more Indian tribes, on the relationship significant adverse effects on law, amending 21 U.S.C. 811. This between the Federal government and competition, employment, investment, amendment provides that in cases Indian tribes, or on the distribution of productivity, innovation, or on the where a new drug is (1) approved by the power and responsibilities between the ability of U.S.-based companies to Department of Health and Human Federal government and Indian tribes. compete with foreign based companies Services (HHS) and (2) HHS in domestic and export markets. recommends control in CSA schedule Regulatory Flexibility Act However, pursuant to the CRA, the DEA II–V, the DEA shall issue an interim In accordance with 5 U.S.C. 603(a), has submitted a copy of this interim final rule scheduling the drug within 90 ‘‘[w]henever an agency is required by [5 final rule to both Houses of Congress days. Additionally, the law specifies U.S.C. 553], or any other law, to publish and to the Comptroller General. that the rulemaking shall become general notice of proposed rulemaking List of Subjects in 21 CFR Part 1308 immediately effective as an interim final for any proposed rule, or publishes a rule without requiring the DEA to notice of proposed rulemaking for an Administrative practice and demonstrate good cause. Therefore, the interpretive rule involving the internal procedure, Drug traffic control, DEA has determined that the notice and revenue laws of the United States, the Reporting and recordkeeping comment requirements of section 553 of agency shall prepare and make available requirements. the APA, 5 U.S.C. 553, do not apply to for public comment an initial regulatory For the reasons set out above, the DEA this scheduling action. flexibility analysis.’’ As noted in the amends 21 CFR part 1308: above discussion regarding applicability Executive Orders 12866, Regulatory of the Administrative Procedure Act, the Planning and Review, and 13563, PART 1308—SCHEDULES OF DEA has determined that the notice and Improving Regulation and Regulatory CONTROLLED SUBSTANCES comment requirements of section 553 of Review the APA, 5 U.S.C. 553, do not apply to ■ 1. The authority citation for 21 CFR In accordance with Public Law 114– this scheduling action. Consequently, part 1308 continues to read as follows: 89, this scheduling action is subject to the RFA does not apply to this interim formal rulemaking procedures Authority: 21 U.S.C. 811, 812, 871(b), final rule. unless otherwise noted. performed ‘‘on the record after opportunity for a hearing,’’ which are Unfunded Mandates Reform Act of 1995 ■ 2. Amend § 1308.15 by redesignating conducted pursuant to the provisions of In accordance with the Unfunded paragraphs (e)(1) through (e)(3) as 5 U.S.C. 556 and 557. The CSA sets Mandates Reform Act (UMRA) of 1995, paragraphs (e)(2) through (e)(4) and forth the procedures and criteria for 2 U.S.C. 1501 et seq., the DEA has adding new paragraph (e)(1) to read as scheduling a drug or other substance. determined and certifies that this action follows: Such actions are exempt from review by would not result in any Federal the Office of Management and Budget mandate that may result ‘‘in the § 1308.15 Schedule V. (OMB) pursuant to section 3(d)(1) of expenditure by State, local, and tribal * * * * * Executive Order 12866 and the governments, in the aggregate, or by the (e) * * *

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(1) Brivaracetam ((2S)-2-[(4R)-2- FOR FURTHER INFORMATION CONTACT: substance under section 505 of the oxo-4-propylpyrrolidin-1-yl] Barbara J. Boockholdt, Office of Federal Food, Drug, and Cosmetic Act butanamide) (also referred to as Diversion Control, Drug Enforcement (FDCA), 21 U.S.C. 355. 21 U.S.C. BRV; UCB–34714; Briviact) (in- Administration; Mailing Address: 8701 811(h)(1). The Attorney General has cluding its salts) ...... 2710 Morrissette Drive, Springfield, Virginia delegated her scheduling authority * * * * * 22152; Telephone: (202) 598–6812. under 21 U.S.C. 811 to the SUPPLEMENTARY INFORMATION: Administrator of the DEA. 28 CFR Dated: May 6, 2016. 0.100. Chuck Rosenberg, Legal Authority Background Acting Administrator. The Drug Enforcement [FR Doc. 2016–11245 Filed 5–11–16; 8:45 am] Administration (DEA) implements and Section 201(h)(4) of the CSA, 21 BILLING CODE 4410–09–P enforces titles II and III of the U.S.C. 811(h)(4), requires the Comprehensive Drug Abuse Prevention Administrator to notify the Secretary of and Control Act of 1970, as amended. 21 the Department of Health and Human DEPARTMENT OF JUSTICE U.S.C. 801–971. Titles II and III are Services (HHS) of his intention to referred to as the ‘‘Controlled temporarily place a substance into Drug Enforcement Administration Substances Act’’ and the ‘‘Controlled schedule I of the CSA.1 The Substances Import and Export Act,’’ Administrator transmitted the notice of 21 CFR Part 1308 respectively, and are collectively intent to place butyryl fentanyl and referred to as the ‘‘Controlled beta-hydroxythiofentanyl into schedule [Docket No. DEA–434F] Substances Act’’ or the ‘‘CSA’’ for the I on a temporary basis to the Assistant purpose of this action. The DEA Secretary by letter dated December 21, Schedules of Controlled Substances: publishes the implementing regulations 2015. The Assistant Secretary Temporary Placement of Butyryl for these statutes in title 21 of the Code responded to this notice by letter dated Fentanyl and Beta-Hydroxythiofentanyl of Federal Regulations (CFR), chapter II. January 13, 2016, and advised that Into Schedule I The CSA and its implementing based on review by the Food and Drug AGENCY: Drug Enforcement regulations are designed to prevent, Administration (FDA), there are Administration, Department of Justice. detect, and eliminate the diversion of currently no investigational new drug applications or approved new drug ACTION: Final order. controlled substances and listed chemicals into the illicit market while applications for butryl fentanyl or beta- SUMMARY: The Administrator of the Drug ensuring an adequate supply is available hydroxythiofentanyl. The Assistant Enforcement Administration is issuing for the legitimate medical, scientific, Secretary also stated that the HHS has this final order to temporarily schedule research, and industrial needs of the no objection to the temporary placement the synthetic opioids, N-(1- United States. Controlled substances of butryl fentanyl or beta- phenethylpiperidin-4-yl)-N- have the potential for abuse and hydroxythiofentanyl into schedule I of phenylbutyramide, also known as N-(1- dependence and are controlled to the CSA. The DEA has taken into phenethylpiperidin-4-yl)-N- protect the public health and safety. consideration the Assistant Secretary’s phenylbutanamide, (butyryl fentanyl) Under the CSA, every controlled comments as required by 21 U.S.C. and N-[1-[2-hydroxy-2-(thiophen-2- substance is classified into one of five 811(h)(4). Neither butryl fentanyl nor yl)ethyl]piperidin-4-yl]-N- schedules based upon its potential for beta-hydroxythiofentanyl is currently phenylpropionamide, also known as N- abuse, its currently accepted medical listed in any schedule under the CSA, [1-[2-hydroxy-2-(2-thienyl)ethyl]-4- use in treatment in the United States, and no exemptions or approvals are in piperidinyl]-N-phenylpropanamide, and the degree of dependence the drug effect for butryl fentanyl or beta- (beta-hydroxythiofentanyl), and their or other substance may cause. 21 U.S.C. hydroxythiofentanyl under section 505 isomers, esters, ethers, salts and salts of 812. The initial schedules of controlled of the FDCA, 21 U.S.C. 355. The DEA isomers, esters and ethers, into schedule substances established by Congress are has found that the control of butryl I pursuant to the temporary scheduling found at 21 U.S.C. 812(c), and the fentanyl and beta-hydroxythiofentanyl provisions of the Controlled Substances current list of all scheduled substances in schedule I on a temporary basis is Act. This action is based on a finding by is published at 21 CFR part 1308. necessary to avoid an imminent hazard Section 201 of the CSA, 21 U.S.C. 811, to public safety, and as required by 21 the Administrator that the placement of provides the Attorney General with the U.S.C. 811(h)(1)(A), a notice of intent to butyryl fentanyl and beta- authority to temporarily place a temporarily schedule butryl fentanyl hydroxythiofentanyl into schedule I of substance into schedule I of the CSA for and beta-hydroxythiofentanyl was the Controlled Substances Act is two years without regard to the published in the Federal Register on necessary to avoid an imminent hazard requirements of 21 U.S.C. 811(b) if she March 23, 2016. 81 FR 15485. to the public safety. As a result of this finds that such action is necessary to To find that placing a substance order, the regulatory controls and avoid an imminent hazard to the public temporarily into schedule I of the CSA administrative, civil, and criminal safety. 21 U.S.C. 811(h)(1). In addition, is necessary to avoid an imminent sanctions applicable to schedule I if proceedings to control a substance are hazard to the public safety, the controlled substances will be imposed initiated under 21 U.S.C. 811(a)(1), the on persons who handle (manufacture, Attorney General may extend the 1 As discussed in a memorandum of distribute, reverse distribute, import, temporary scheduling for up to one understanding entered into by the Food and Drug export, engage in research, conduct Administration (FDA) and the National Institute on year. 21 U.S.C. 811(h)(2). Drug Abuse (NIDA), the FDA acts as the lead agency instructional activities or chemical Where the necessary findings are analysis, or possess), or propose to within the HHS in carrying out the Secretary’s made, a substance may be temporarily scheduling responsibilities under the CSA, with the handle, butyryl fentanyl and beta- scheduled if it is not listed in any other concurrence of NIDA. 50 FR 9518, Mar. 8, 1985. hydroxythiofentanyl. The Secretary of the HHS has delegated to the schedule under section 202 of the CSA, Assistant Secretary for Health of the HHS the DATES: This final order is effective on 21 U.S.C. 812, or if there is no authority to make domestic drug scheduling May 12, 2016. exemption or approval in effect for the recommendations. 58 FR 35460, July 1, 1993.

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Administrator is required to consider were temporarily controlled 2 in 1985– including butyryl fentanyl and beta- three of the eight factors set forth in 1987 under schedule I of the CSA after hydroxythiofentanyl, parallels that of section 201(c) of the CSA, 21 U.S.C. finding that they posed an imminent heroin and prescription opioid 811(c): The substance’s history and hazard to public safety and were analgesics. Seizures of butyryl fentanyl current pattern of abuse; the scope, subsequently permanently placed in have been encountered in tablet and duration and significance of abuse; and schedule I of the CSA. On July 17, 2015, powder form. Butyryl fentanyl was what, if any, risk there is to the public acetyl fentanyl was temporarily identified on bottle caps and spoons and health. 21 U.S.C. 811(h)(3). controlled under schedule I of the CSA residue was detected within glassine Consideration of these factors includes after a finding by the Administrator that bags, on digital scales, and on sifters actual abuse, diversion from legitimate it posed an imminent hazard to public which demonstrates the abuse of this channels, and clandestine importation, safety. 80 FR 42381. substance as a replacement for heroin or manufacture, or distribution. 21 U.S.C. Prior to October 1, 2014, the System other opioids, either knowingly or 811(h)(3). to Retrieve Information from Drug unknowingly. Butyryl fentanyl has been Evidence (STRIDE) collected the results encountered as a single substance as A substance meeting the statutory of drug evidence analyzed at DEA well as in combination with other illicit requirements for temporary scheduling laboratories and reflected evidence substances, such as acetyl fentanyl, may only be placed into schedule I. 21 submitted by the DEA, other federal law heroin, cocaine, or methamphetamine. U.S.C. 811(h)(1). Substances in schedule enforcement agencies, and some local Like butyryl fentanyl, beta- I are those that have a high potential for law enforcement agencies. STRIDE data hydroxythiofentanyl has been abuse, no currently accepted medical were queried through September 30, encountered in both tablet and powder use in treatment in the United States, 2014, by date submitted to federal form. Both butyryl fentanyl and beta- and a lack of accepted safety for use forensic laboratories. Since October 1, hydroxythiofentanyl have caused fatal under medical supervision. 21 U.S.C. 2014, STARLiMS (a web-based, overdoses, in which intravenous routes 812(b)(1). Available data and commercial laboratory information of administration are documented. information for butryl fentanyl and beta- management system) has replaced hydroxythiofentanyl, summarized STRIDE as the DEA laboratory drug Factor 5. Scope, Duration and below, indicate that these synthetic evidence data system of record. DEA Significance of Abuse opioids have a high potential for abuse, laboratory data submitted after The DEA is currently aware of at least no currently accepted medical use in September 30, 2014, are reposited in 40 confirmed fatalities associated with treatment in the United States, and a STARLiMS. Data from STRIDE and butyryl fentanyl and 7 confirmed lack of accepted safety for use under STARLiMS were queried on December fatalities associated with beta- medical supervision. The DEA’s three- 21, 2015. The National Forensic hydroxythiofentanyl. The information factor analysis, and the Assistant Laboratory Information System (NFLIS) on these deaths occurring in 2015 was Secretary’s January 13, 2016, letter, are is a program of the DEA that collects collected from toxicology and medical available in their entirety under the tab drug identification results from drug examiner reports and was reported from ‘‘Supporting Documents’’ of the public cases analyzed by other federal, state, four states—Florida (7, beta- docket of this action at and local forensic laboratories. NFLIS hydroxythiofentanyl), Maryland (1, www.regulations.gov under FDMS reports from other federal, state, and butyryl fentanyl), New York (38, butyryl Docket ID: DEA–2016–0005 (Docket local forensic laboratories were queried fentanyl), and Oregon (1, butyryl Number DEA–434). on December 22, 2015.3 fentanyl). STRIDE, STARLiMS, and The first laboratory submission of NFLIS have a total of 88 drug reports in Factor 4. History and Current Pattern of butyryl fentanyl was recorded in Kansas which butyryl fentanyl was identified in Abuse in March 2014 according to NFLIS. drug exhibits submitted in 2014 and STRIDE, STARLiMS, and NFLIS 2015 from California, Connecticut, Clandestinely produced substances registered seven reports containing Florida, Illinois, Indiana, Kansas, structurally related to the schedule II butyryl fentanyl in 2014 in Illinois, Minnesota, North Dakota, New York, opioid analgesic fentanyl were Kansas, Minnesota, and Pennsylvania; Ohio, Oregon, Pennsylvania, Tennessee, trafficked and abused on the West Coast 81 reports of butyryl fentanyl were Virginia, and Wisconsin. STARLiMS in the late 1970s and 1980s. These recorded in 2015 in California, has a total of three drug reports in clandestinely produced fentanyl-like Connecticut, Florida, Indiana, North which beta-hydroxythiofentanyl was substances were commonly known as Dakota, New York, Ohio, Oregon, identified in drug exhibits submitted in designer drugs, and recently there has Tennessee, Virginia, and Wisconsin. A 2015 from Florida. It is likely that the been a reemergence in the trafficking total of three reports of beta- prevalence of butyryl fentanyl and beta- and abuse of designer drug substances, hydroxythiofentanyl were recorded by hydroxythiofentanyl in opioid including fentanyl-like substances. STARLiMS, all of which were reported analgesic-related emergency room Alpha-methylfentanyl, the first fentanyl in 2015 from Florida. As of December admissions and deaths is underreported analogue identified in California, was 22, 2015, beta-hydroxythiofentanyl had as standard immunoassays cannot placed into schedule I of the CSA in not been reported in NFLIS; however, differentiate these substances from September 1981. 46 FR 46799. this substance was identified in June fentanyl. Following the control of alpha- 2015 by a forensic laboratory in Oregon. The population likely to abuse butyryl methylfentanyl, the DEA identified Evidence also suggests that the fentanyl and beta-hydroxythiofentanyl several other fentanyl analogues (3- pattern of abuse of fentanyl analogues, overlaps with the populations abusing methylthiofentanyl, acetyl-alpha- prescription opioid analgesics and methylfentanyl, beta-hydroxy-3- 2 50 FR 43698, 51 FR 42834, 50 FR 11690, 51 FR heroin. This is evidenced by the routes methylfentanyl, alpha- 15474, and 51 FR 4722. [The temporary scheduling of administration and drug use history methylthiofentanyl, thiofentanyl, beta- of para-fluorofentanyl was extended in 1987, at 52 documented in butyryl fentanyl and hydroxyfentanyl, para-fluorofentanyl, FR 7270. 3 Data are still being reported for September– beta-hydroxythiofentanyl fatal overdose and 3-methylfentanyl) in submissions to November 2015 due to normal lag time for cases. Because abusers of these fentanyl forensic laboratories. These substances laboratories to report to NFLIS. analogues are likely to obtain these

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substances through illicit sources, the hydroxythiofentanyl pose an imminent determination. Final decisions that identity, purity, and quantity is hazard to the public safety. The DEA is conclude the permanent scheduling uncertain and inconsistent, thus posing not aware of any currently accepted process of formal rulemaking are subject significant adverse health risks to medical uses for these substances in the to judicial review. 21 U.S.C. 877. abusers of butyryl fentanyl and beta- United States. A substance meeting the Temporary scheduling orders are not hydroxythiofentanyl. Individuals who statutory requirements for temporary subject to judicial review. 21 U.S.C. initiate (i.e., use an illicit drug for the scheduling, 21 U.S.C. 811(h)(1), may 811(h)(6). first time) butyryl fentanyl or beta- only be placed into schedule I. hydroxythiofentanyl abuse are likely to Substances in schedule I are those that Requirements for Handling be at risk of developing substance use have a high potential for abuse, no Upon the effective date of this final disorder, overdose, and death similar to currently accepted medical use in order, butyryl fentanyl and beta- that of other opioid analgesics (e.g., treatment in the United States, and a hydroxythiofentanyl will become fentanyl, morphine, etc.). lack of accepted safety for use under subject to the regulatory controls and medical supervision. Available data and Factor 6. What, if Any, Risk There Is to administrative, civil, and criminal information for butyryl fentanyl and the Public Health sanctions applicable to the manufacture, beta-hydroxythiofentanyl indicate that distribution, reverse distribution, Butyryl fentanyl and beta- these substances have a high potential importation, exportation, engagement in hydroxythiofentanyl exhibit for abuse, no currently accepted medical research, and conduct of instructional pharmacological profiles similar to that use in treatment in the United States, activities or chemical analysis with, and of fentanyl and other mu-opioid and a lack of accepted safety for use possession of schedule I controlled receptor agonists. Due to limited under medical supervision. As required substances including the following: scientific data, their potency and by section 201(h)(4) of the CSA, 21 1. Registration. Any person who toxicity are not known; however, the U.S.C. 811(h)(4), the Administrator, handles (manufactures, distributes, toxic effects of both butyryl fentanyl and through a letter dated December 21, reverse distributes, imports, exports, beta-hydroxythiofentanyl in humans are 2015, notified the Assistant Secretary of engages in research, or conducts demonstrated by overdose fatalities the DEA’s intention to temporarily place instructional activities or chemical involving these substances. Abusers of these substances into schedule I. analysis with, or possesses), or who these fentanyl analogues may not know desires to handle, butyryl fentanyl and the origin, identity, or purity of these Conclusion beta-hydroxythiofentanyl must be substances, thus posing significant In accordance with the provisions of registered with the DEA to conduct such adverse health risks when compared to section 201(h) of the CSA, 21 U.S.C. activities pursuant to 21 U.S.C. 822, abuse of pharmaceutical preparations of 811(h), the Administrator considered 823, 957, and 958 and in accordance opioid analgesics, such as morphine and available data and information, herein with 21 CFR parts 1301 and 1312, as of oxycodone. sets forth the grounds for his Based on the documented case reports determination that it is necessary to May 12, 2016. Any person who of overdose fatalities, the abuse of temporarily schedule butyryl fentanyl currently handles butyryl fentanyl and butyryl fentanyl and beta- and beta-hydroxythiofentanyl into beta-hydroxythiofentanyl, and is not hydroxythiofentanyl leads to the same schedule I of the CSA, and finds that registered with the DEA, must submit an qualitative public health risks as heroin, placement of these synthetic opioids application for registration and may not fentanyl and other opioid analgesic into schedule I of the CSA is necessary continue to handle butyryl fentanyl or substances. The public health risks to avoid an imminent hazard to the beta-hydroxythiofentanyl as of May 12, attendant to the abuse of heroin and public safety. Because the Administrator 2016, unless the DEA has approved that opioid analgesics are well established hereby finds it necessary to temporarily application for registration pursuant to and have resulted in large numbers of place these synthetic opioids into 21 U.S.C. 822, 823, 957, 958, and in drug treatment admissions, emergency schedule I to avoid an imminent hazard accordance with 21 CFR parts 1301 and department visits, and fatal overdoses. to the public safety, this final order 1312. Retail sales of schedule I Butyryl fentanyl and beta- temporarily scheduling butyryl fentanyl controlled substances to the general hydroxythiofentanyl have been and beta-hydroxythiofentanyl will be public are not allowed under the CSA. associated with numerous fatalities. At effective on the date of publication in Possession of any quantity of this least 40 confirmed overdose deaths the Federal Register, and will be in substance in a manner not authorized by involving butyryl fentanyl abuse have effect for a period of two years, with a the CSA on or after May 12, 2016 is been reported in Maryland (1), New possible extension of one additional unlawful and those in possession of any York (38), and Oregon (1) in 2015. At year, pending completion of the regular quantity of this substance may be least seven confirmed overdose fatalities (permanent) scheduling process. 21 subject to prosecution pursuant to the involving beta-hydroxythiofentanyl U.S.C. 811(h)(1) and (2). CSA. have been reported in Florida in 2015. The CSA sets forth specific criteria for 2. Disposal of stocks. Any person who This indicates that both butyryl fentanyl scheduling a drug or other substance. does not desire or is not able to obtain and beta-hydroxythiofentanyl pose an Permanent scheduling actions in a schedule I registration to handle imminent hazard to the public safety. accordance with 21 U.S.C. 811(a) are butyryl fentanyl and beta- subject to formal rulemaking procedures hydroxythiofentanyl, must surrender all Finding of Necessity of Schedule I done ‘‘on the record after opportunity quantities of currently held butyryl Placement To Avoid Imminent Hazard for a hearing’’ conducted pursuant to fentanyl and beta-hydroxythiofentanyl. to Public Safety the provisions of 5 U.S.C. 556 and 557. 3. Security. Butyryl fentanyl and beta- In accordance with 21 U.S.C. 21 U.S.C. 811. The permanent hydroxythiofentanyl are subject to 811(h)(3), based on the data and scheduling process of formal schedule I security requirements and information summarized above, the rulemaking affords interested parties must be handled and stored pursuant to continued uncontrolled manufacture, with appropriate process and the 21 U.S.C. 821, 823, 871(b), and in distribution, importation, exportation, government with any additional accordance with 21 CFR 1301.71– and abuse of butyryl fentanyl and beta- relevant information needed to make a 1301.93, as of May 12, 2016.

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4. Labeling and packaging. All labels, 11. Liability. Any activity involving government and the States, or on the labeling, and packaging for commercial butyryl fentanyl and beta- distribution of power and containers of butyryl fentanyl and beta- hydroxythiofentanyl not authorized by, responsibilities among the various hydroxythiofentanyl must be in or in violation of the CSA, occurring as levels of government. Therefore, in compliance with 21 U.S.C. 825, 958(e), of May 12, 2016, is unlawful, and may accordance with Executive Order 13132 and be in accordance with 21 CFR part subject the person to administrative, (Federalism) it is determined that this 1302. Current DEA registrants shall have civil, and/or criminal sanctions. action does not have sufficient 30 calendar days from May 12, 2016, to federalism implications to warrant the Regulatory Matters comply with all labeling and packaging preparation of a Federalism Assessment. requirements. Section 201(h) of the CSA, 21 U.S.C. As noted above, this action is an 5. Inventory. Every DEA registrant 811(h), provides for an expedited order, not a rule. Accordingly, the who possesses any quantity of butyryl temporary scheduling action where Congressional Review Act (CRA) is fentanyl and beta-hydroxythiofentanyl such action is necessary to avoid an inapplicable, as it applies only to rules. on the effective date of this order must imminent hazard to the public safety. However, if this were a rule, pursuant take an inventory of all stocks of this As provided in this subsection, the to the Congressional Review Act, ‘‘any substance on hand, pursuant to 21 Attorney General may, by order, rule for which an agency for good cause U.S.C. 827 and 958, and in accordance schedule a substance in schedule I on a finds that notice and public procedure with 21 CFR 1304.03, 1304.04, and temporary basis. Such an order may not thereon are impracticable, unnecessary, 1304.11. Current DEA registrants shall be issued before the expiration of 30 or contrary to the public interest, shall have 30 calendar days from the effective days from (1) the publication of a notice take effect at such time as the federal date of this order to be in compliance in the Federal Register of the intention agency promulgating the rule with all inventory requirements. After to issue such order and the grounds determines.’’ 5 U.S.C. 808(2). It is in the the initial inventory, every DEA upon which such order is to be issued, public interest to schedule these registrant must take an inventory of all and (2) the date that notice of the substances immediately because they controlled substances (including butyryl proposed temporary scheduling order is pose a public health risk. This fentanyl and beta-hydroxythiofentanyl) transmitted to the Assistant Secretary. temporary scheduling action is taken on hand on a biennial basis, pursuant to 21 U.S.C. 811(h)(1). pursuant to 21 U.S.C. 811(h), which is 21 U.S.C. 827 and 958, and in Inasmuch as section 201(h) of the specifically designed to enable the DEA accordance with 21 CFR 1304.03, CSA directs that temporary scheduling to act in an expeditious manner to avoid 1304.04, and 1304.11. actions be issued by order and sets forth an imminent hazard to the public safety. 6. Records. All DEA registrants must the procedures by which such orders are 21 U.S.C. 811(h) exempts the temporary maintain records with respect to butyryl to be issued, the DEA believes that the scheduling order from standard notice fentanyl and beta-hydroxythiofentanyl notice and comment requirements of the and comment rulemaking procedures to pursuant to 21 U.S.C. 827 and 958, and Administrative Procedure Act (APA) at ensure that the process moves swiftly. in accordance with 21 CFR parts 1304, 5 U.S.C. 553, do not apply to this For the same reasons that underlie 21 and 1312, 1317 and § 1307.11. Current temporary scheduling action. In the U.S.C. 811(h), that is, the DEA’s need to DEA registrants authorized to handle alternative, even assuming that this move quickly to place these substances butyryl fentanyl and beta- action might be subject to 5 U.S.C. 553, into schedule I because they pose an hydroxythiofentanyl shall have 30 the Administrator finds that there is imminent hazard to public safety, it calendar days from the effective date of good cause to forgo the notice and would be contrary to the public interest this order to be in compliance with all comment requirements of 5 U.S.C. 553, to delay implementation of the recordkeeping requirements. as any further delays in the process for temporary scheduling order. Therefore, 7. Reports. All DEA registrants who issuance of temporary scheduling orders this order shall take effect immediately manufacture or distribute butyryl would be impracticable and contrary to upon its publication. The DEA has fentanyl and beta-hydroxythiofentanyl the public interest in view of the submitted a copy of this final order to must submit reports pursuant to 21 manifest urgency to avoid an imminent both Houses of Congress and to the U.S.C. 827 and in accordance with 21 hazard to the public safety. Comptroller General, although such CFR parts 1304, and 1312 as of May 12, Further, the DEA believes that this filing is not required under the Small 2016. temporary scheduling action is not a Business Regulatory Enforcement 8. Order Forms. All DEA registrants ‘‘rule’’ as defined by 5 U.S.C. 601(2), Fairness Act of 1996 (Congressional who distribute butyryl fentanyl and and, accordingly, is not subject to the Review Act), 5 U.S.C. 801–808 because, beta-hydroxythiofentanyl must comply requirements of the Regulatory as noted above, this action is an order, with order form requirements pursuant Flexibility Act. The requirements for the not a rule. to 21 U.S.C. 828 and in accordance with preparation of an initial regulatory 21 CFR part 1305 as of May 12, 2016. flexibility analysis in 5 U.S.C. 603(a) are List of Subjects in 21 CFR Part 1308 9. Importation and Exportation. All not applicable where, as here, the DEA Administrative practice and importation and exportation of butyryl is not required by the APA or any other procedure, Drug traffic control, fentanyl and beta-hydroxythiofentanyl law to publish a general notice of Reporting and recordkeeping must be in compliance with 21 U.S.C. proposed rulemaking. requirements. 952, 953, 957, 958, and in accordance Additionally, this action is not a For the reasons set out above, the DEA with 21 CFR part 1312 as of May 12, significant regulatory action as defined amends 21 CFR part 1308 as follows: 2016. by Executive Order 12866 (Regulatory 10. Quota. Only DEA registered Planning and Review), section 3(f), and, PART 1308—SCHEDULES OF manufacturers may manufacture butyryl accordingly, this action has not been CONTROLLED SUBSTANCES fentanyl and beta-hydroxythiofentanyl reviewed by the Office of Management in accordance with a quota assigned and Budget (OMB). ■ 1. The authority citation for part 1308 pursuant to 21 U.S.C. 826 and in This action will not have substantial continues to read as follows: accordance with 21 CFR part 1303 as of direct effects on the States, on the Authority: 21 U.S.C. 811, 812, 871(b), May 12, 2016. relationship between the national unless otherwise noted.

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■ 2. Amend § 1308.11 by adding mile 59.0, over Sacramento River, at protect the vessels and their respective paragraphs (h)(26) and (27) to read as Sacramento, CA. The vertical lift bridge crews from potential security threats. follows: navigation span provides a vertical Entry of vessels or persons into this clearance of 30 feet above Mean High zone is prohibited unless specifically § 1308.11 Schedule I. Water in the closed-to-navigation authorized by the Captain of the Port * * * * * position. The draw operates as required New York. (h) * * * by 33 CFR 117.189(a). Navigation on the DATES: This rule is effective from May (26) N-(1-phenethylpiperidin-4-yl)- waterway is commercial and 25, 2016 through May 31, 2016. N-phenylbutyramide, its isomers, recreational. ADDRESSES: To view documents esters, ethers, salts and salts of The drawspan will be secured in the isomers, esters and ethers (Other mentioned in this preamble as being closed-to-navigation position from 7:30 available in the docket, go to http:// names: Butyryl fentanyl) ...... (9822) a.m. to 11 a.m. on May 15, 2016, to (27) N-[1-[2-hydroxy-2-(thiophen-2- www.regulations.gov, type USCG–2016– yl)ethyl]piperidin-4-yl]-N- allow the community to participate in 0215 in the ‘‘SEARCH’’ box and click phenylpropionamide, its iso- the Capital City Classic Run. This ‘‘SEARCH.’’ Click on Open Docket mers, esters, ethers, salts and temporary deviation has been Folder on the line associated with this salts of isomers, esters and ethers coordinated with the waterway users. rule. (Other names: beta- No objections to the proposed FOR FURTHER INFORMATION CONTACT: If hydroxythiofentanyl) ...... (9836) temporary deviation were raised. you have questions on this rule, call or Vessels able to pass through the Dated: May 6, 2016. email MST1 R. J. Sampert, Waterways bridge in the closed position may do so Management Division, U.S. Coast Chuck Rosenberg, at any time. The bridge will be able to Acting Administrator. Guard; telephone 718–354–4197, email open for emergencies and there is no [email protected]. [FR Doc. 2016–11219 Filed 5–11–16; 8:45 am] immediate alternate route for vessels to SUPPLEMENTARY INFORMATION: BILLING CODE 4410–09–P pass. The Coast Guard will also inform the users of the waterways through our I. Table of Abbreviations Local and Broadcast Notices to Mariners DEPARTMENT OF HOMELAND of the change in operating schedule for CFR Code of Federal Regulations SECURITY the bridge so that vessels can arrange DHS Department of Homeland Security FR Federal Register their transits to minimize any impact Coast Guard NPRM Notice of proposed rulemaking caused by the temporary deviation. § Section In accordance with 33 CFR 117.35(e), U.S.C. United States Code 33 CFR Part 117 the drawbridge must return to its regular [Docket No. USCG–2016–0348] operating schedule immediately at the II. Background Information and end of the effective period of this Regulatory History Drawbridge Operation Regulation; temporary deviation. This deviation The Coast Guard is issuing this Sacramento River, Sacramento, CA from the operating regulations is temporary rule without prior notice and authorized under 33 CFR 117.35. AGENCY: Coast Guard, DHS. opportunity to comment pursuant to Dated: May 3, 2016. authority under section 4(a) of the ACTION: Notice of deviation from drawbridge regulation. D.H. Sulouff, Administrative Procedure Act (APA) (5 District Bridge Chief, Eleventh Coast Guard U.S.C. 553(b)). This provision SUMMARY: The Coast Guard has issued a District. authorizes an agency to issue a rule temporary deviation from the operating [FR Doc. 2016–11266 Filed 5–11–16; 8:45 am] without prior notice and opportunity to schedule that governs the Tower BILLING CODE 9110–04–P comment when the agency for good Drawbridge across the Sacramento cause finds that those procedures are River, mile 59.0, at Sacramento, CA. The ‘‘impracticable, unnecessary, or contrary deviation is necessary to allow the DEPARTMENT OF HOMELAND to the public interest.’’ Under 5 U.S.C. community to participate in the Capital SECURITY 553(b)(B), the Coast Guard finds that City Classic Run. This deviation allows good cause exists for not publishing a the bridge to remain in the closed-to- Coast Guard NPRM with respect to this rule because navigation position during the deviation the specifics associated with the entry period. 33 CFR Part 165 and transit of the foreign naval vessels DATES: This deviation is effective from [Docket Number USCG–2016–0215] in the harbor were not received in time 7:30 a.m. to 11 a.m. on May 15, 2016. to publish an NPRM. Publishing an RIN 1625–AA87 NPRM and delaying the effective date of ADDRESSES: The docket for this this rule to await public comments deviation, [USCG–2016–0348] is Security Zone; Port of New York, would be impracticable and contrary to available at http://www.regulations.gov. Moving Security Zone; Canadian Naval the public interest since it would inhibit FOR FURTHER INFORMATION CONTACT: Vessels If the Coast Guard’s ability to fulfill its you have questions on this temporary AGENCY: Coast Guard, DHS. statutory missions to protect and secure deviation, call or email David H. ACTION: Temporary final rule. the ports and waterways of the United Sulouff, Chief, Bridge Section, Eleventh States. Coast Guard District; telephone 510– SUMMARY: The Coast Guard is Under 5 U.S.C. 553(d)(3), the Coast 437–3516, email David.H.Sulouff@ establishing a temporary moving Guard finds that good cause exists for uscg.mil. security zone around all Canadian Naval making it effective less than 30 days SUPPLEMENTARY INFORMATION: California Ships in the New York Harbor, New after publication in the Federal Department of Transportation has York, NY. The moving security zone Register. Delaying the effective date of requested a temporary change to the will extend 100 yards on all sides of the this rule would be contrary to public operation of the Tower Drawbridge, ships. The security zone is needed to interest because immediate action is

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needed to respond to the potential Guard will issue Broadcast Notice to D. Federalism and Indian Tribal security threats associated with having Mariners via VHF–FM marine channel Governments a foreign nation’s Naval Vessels in U.S. 16 about the zone and the rule allows A rule has implications for federalism Waters. vessels to seek permission to enter the under Executive Order 13132, III. Legal Authority and Need for Rule zone. Federalism, if it has a substantial direct The Coast Guard is issuing this rule B. Impact on Small Entities effect on the States, on the relationship under the authority in 33 U.S.C. 1231. between the national government and The Captain of the Port of New York The Regulatory Flexibility Act of the States, or on the distribution of (COTP) has determined that potential 1980, 5 U.S.C. 601–612, as amended, power and responsibilities among the security risks associated with Canadian requires Federal agencies to consider various levels of government. We have Naval Vessels in the Port of New York the potential impact of regulations on analyzed this rule under that Order and will be a security concern for vessels small entities during rulemaking. The have determined that it is consistent within a 100-yard radius of all Canadian term ‘‘small entities’’ comprises small with the fundamental federalism Naval Vessels. This rule is needed to businesses, not-for-profit organizations principles and preemption requirements protect the vessels and their respective that are independently owned and described in Executive Order 13132. crew in the navigable waters within the operated and are not dominant in their Also, this rule does not have tribal security zone while the vessels are fields, and governmental jurisdictions implications under Executive Order, within New York Harbor. with populations of less than 50,000. Consultation and Coordination with The Coast Guard certifies under 5 U.S.C. Indian Tribal Governments, because it IV. Discussion of the Rule 605(b) that this rule will not have a does not have a substantial direct effect This rule establishes a security zone significant economic impact on a on one or more Indian tribes, on the from May 25, 2016 through May 31, substantial number of small entities. relationship between the Federal 2016. The security zone will cover all Government and Indian tribes, or on the While some owners or operators of navigable waters within 100 yards of all distribution of power and vessels intending to transit the safety Canadian Naval Vessels. The duration of responsibilities between the Federal the zone is intended to protect the zone may be small entities, for the Government and Indian tribes. If you vessels and their respective crews in the reasons stated in section V.A above, this believe this rule has implications for navigable waters while in port and rule will not have a significant federalism or Indian tribes, please while transiting New York Harbor. No economic impact on any vessel owner contact the person listed in the FOR vessel or person will be permitted to or operator. FURTHER INFORMATION CONTACT section enter the security zone without Under section 213(a) of the Small above. obtaining permission from the COTP or Business Regulatory Enforcement E. Unfunded Mandates Reform Act a designated representative. Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in The Unfunded Mandates Reform Act V. Regulatory Analyses of 1995 (2 U.S.C. 1531–1538) requires understanding this rule. If the rule Federal agencies to assess the effects of We developed this rule after would affect your small business, their discretionary regulatory actions. In considering numerous statutes and organization, or governmental executive orders (E.O.s) related to particular, the Act addresses actions jurisdiction and you have questions that may result in the expenditure by a rulemaking. Below we summarize our concerning its provisions or options for analyses based on a number of these State, local, or tribal government, in the compliance, please contact the person statutes and E.O.s, and we discuss First aggregate, or by the private sector of listed in the FOR FURTHER INFORMATION Amendment rights of protestors. $100,000,000 (adjusted for inflation) or CONTACT section. more in any one year. Though this rule A. Regulatory Planning and Review Small businesses may send comments will not result in such an expenditure, Executive Orders 12866 and 13563 on the actions of Federal employees we do discuss the effects of this rule direct agencies to assess the costs and who enforce, or otherwise determine elsewhere in this preamble. benefits of available regulatory compliance with, Federal regulations to F. Environment alternatives and, if regulation is the Small Business and Agriculture necessary, to select regulatory Regulatory Enforcement Ombudsman We have analyzed this rule under approaches that maximize net benefits. and the Regional Small Business Department of Homeland Security Executive Order 13563 emphasizes the Regulatory Fairness Boards. The Management Directive 023–01 and importance of quantifying both costs Ombudsman evaluates these actions Commandant Instruction M16475.lD, and benefits, of reducing costs, of annually and rates each agency’s which guide the Coast Guard in harmonizing rules, and of promoting responsiveness to small business. If you complying with the National flexibility. This rule has not been wish to comment on actions by Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have designated a ‘‘significant regulatory employees of the Coast Guard, call 1– determined that this action is one of a action,’’ under Executive Order 12866. 888–REG–FAIR (1–888–734–3247). The category of actions that do not Accordingly, it has not been reviewed Coast Guard will not retaliate against by the Office of Management and individually or cumulatively have a small entities that question or complain Budget. significant effect on the human This regulatory action determination about this rule or any policy or action environment. This rule involves a is based on the size, location, duration, of the Coast Guard. security zone lasting less than seven and time-of-year of the safety zone. C. Collection of Information days that will prohibit entry within 100 Vessel traffic will be able to safely yards of the Canadian Naval Vessels. It transit around this security zone which This rule will not call for a new is categorically excluded from further will impact a small designated area of collection of information under the review under paragraph 34(g) of Figure the Port of New York South side of Pier Paperwork Reduction Act of 1995 (44 2–1 of the Commandant Instruction. An 92 for 7 days. Moreover, the Coast U.S.C. 3501–3520). environmental analysis checklist

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supporting this determination and a representative via VHF channel 16 or by security of vessels participating in the Categorical Exclusion Determination are phone at (718) 354–4353 (Sector New 2016 Portland Rose Festival on the available in the docket where indicated York Command Center). Those in the Willamette River during the event. under ADDRESSES. We seek any security zone must comply with all Under the provisions of 33 CFR comments or information that may lead lawful orders or directions given to 165.1312 and 33 CFR 165 subpart D, no to the discovery of a significant them by the COTP or the COTP’s person or vessel may enter or remain in environmental impact from this rule. designated representative. the security zone, consisting of all (d) Enforcement period. This section waters of the Willamette River, from G. Protest Activities will be enforced from May 25, 2016 surface to bottom, encompassed by the The Coast Guard respects the First through May 31, 2016, unless Hawthorne and Steel Bridges, without Amendment rights of protesters. terminated sooner by the COTP. permission from the Sector Columbia Protesters are asked to contact the Dated: April 12, 2016. River Captain of the Port. Persons or person listed in the FOR FURTHER M.H. Day, vessels wishing to enter the security INFORMATION CONTACT section to zone may request permission to do so coordinate protest activities so that your Captain, U.S. Coast Guard, Captain of the Port, New York. from the on scene Captain of the Port message can be received without representative via VHF Channel 16 or [FR Doc. 2016–11251 Filed 5–11–16; 8:45 am] jeopardizing the safety or security of 13. The Coast Guard may be assisted by people, places or vessels. BILLING CODE 9110–04–P other Federal, State, or local List of Subjects in 33 CFR Part 165 enforcement agencies in enforcing this regulation. Harbors, Marine safety, Navigation DEPARTMENT OF HOMELAND SECURITY This notice of enforcement is issued (water), Reporting and recordkeeping under authority 33 CFR 165.1312 and 5 requirements, Security measures, Coast Guard U.S.C. 552 (a). In addition to this notice Waterways. of enforcement in the Federal Register, For the reasons discussed in the 33 CFR Part 165 the Coast Guard plans to provide preamble, the Coast Guard amends 33 notification of this enforcement period CFR part 165 as follows: [Docket No. USCG–2016–0304] via the Local Notice to Mariners and marine information broadcasts. PART 165—REGULATED NAVIGATION Security Zone; Portland Rose Festival AREAS AND LIMITED ACCESS AREAS on Willamette River Dated: April 12, 2016. D. F. Berliner, AGENCY: Coast Guard, DHS. ■ 1. The authority citation for part 165 Captain, U.S. Coast Guard, Acting Captain continues to read as follows: ACTION: Notice of enforcement of of the Port, Sector Columbia River. regulation. Authority: 33 U.S.C. 1231; 50 U.S.C. 191; [FR Doc. 2016–11231 Filed 5–11–16; 8:45 am] 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; SUMMARY: The Coast Guard will enforce BILLING CODE 9110–04–P Department of Homeland Security Delegation the security zone for the Portland Rose No. 0170.1. Festival on the Willamette River in ■ 2. Add § 165.T01–0215 to read as Portland, OR from 11 a.m. on June 9, ENVIRONMENTAL PROTECTION follows: 2016, through noon on June 13, 2016. AGENCY This action is necessary to ensure the § 165.T01–0215 Security Zone; Port of New security of vessels participating in the 40 CFR Part 52 York, moving Security Zone; Canadian Naval Vessels. 2016 Portland Rose Festival on the [EPA–R09–OAR–2013–0534; FRL–9946–29– Willamette River during the event. Our Region 9] (a) Location. The following area is a regulation for the Security Zone security zone: All waters within a 100 Portland Rose Festival on Willamette Withdrawal of Approval and yard radius of Canadian Naval Vessels, River identifies the regulated area. Disapproval of Air Quality from surface to bottom while transiting During the enforcement period, no Implementation Plans; California; San from Ambrose Channel to Pier 92 within person or vessel may enter or remain in Joaquin Valley; Contingency Measures the Port of New York, while moored at the security zone without permission for the 1997 PM2.5 Standards Pier 92 and upon departure transiting from the Sector Columbia River Captain AGENCY: Environmental Protection back to Ambrose Channel. of the Port. (b) Definitions. As used in this Agency (EPA). DATES: The regulations in 33 CFR section, designated representative ACTION: Final rule. means a Coast Guard Patrol 165.1312 will be enforced from 11 a.m. Commander, including a Coast Guard on June 9, 2016, through noon on June SUMMARY: The Environmental Protection coxswain, petty officer, or other officer 13, 2016. Agency (EPA) is withdrawing a May 22, operating a Coast Guard vessel and a FOR FURTHER INFORMATION CONTACT: If 2014 final action approving a state Federal, State, and local officer you have questions about this notice of implementation plan (SIP) revision designated by or assisting the Captain of enforcement, call or email Mr. Kenneth submitted by the State of California the Port New York (COTP) in the Lawrenson, Waterways Management under the Clean Air Act (CAA) to enforcement of the security zone. Division, MSU Portland, Oregon, U.S. address contingency measure (c) Regulations. (1) Under the general Coast Guard; telephone 503–240–9319, requirements for the 1997 annual and security zone regulations in subpart D of email [email protected]. 24-hour national ambient air quality this part, you may not enter the security SUPPLEMENTARY INFORMATION: The Coast standards (NAAQS) for fine particulate zone described in paragraph (a) of this Guard will enforce the security zone for matter (PM2.5) in the San Joaquin Valley. section unless authorized by the COTP the Portland Rose Festival detailed in 33 Simultaneously, EPA is disapproving or the COTP’s designated representative. CFR 165.1312 from 11 a.m. on June 9, this SIP submission. These final actions (2) To seek permission to enter, 2016, through noon on June 13, 2016. are in response to a decision issued by contact the COTP or the COTP’s This action is necessary to ensure the the U.S. Court of Appeals for the Ninth

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Circuit (Committee for a Better Arvin v. EPA-approved SIP in order to meet SIP Comment: Earthjustice argues that EPA, 786 F.3d 1169 (9th Cir. 2015)) requirements (Committee for a Better EPA has no legal basis for proposing to remanding EPA’s approval of a related Arvin v. EPA, 786 F.3d 1169 (9th Cir. determine that the disapproval of the SIP submission and rejecting EPA’s 2015)), which was a necessary basis for 2013 Contingency Measure Submittal rationale for approving plan the May 22, 2014 final rule. EPA’s May would not start a mandatory sanctions submissions that rely on California 22, 2014, approval of the 2013 clock or FIP clock. According to mobile source control measures to meet Contingency Measure Submittal Earthjustice, section 179(a)(2) of the SIP requirements such as contingency likewise relied on the same California Clean Air Act provides that sanctions measures, which was a necessary basis mobile source control measures. ‘‘shall apply’’ if EPA disapproves a for the May 22, 2014 final rule. Finally, EPA proposed to determine that the submission based on its failure to meet EPA is issuing a protective finding for disapproval of the 2013 Contingency one or more CAA requirements transportation conformity Measure Submittal would not start a applicable to nonattainment areas, and determinations for the disapproval. mandatory sanctions clock or Federal section 110(c) provides that EPA ‘‘shall DATES: This rule is effective June 13, implementation plan (FIP) clock promulgate a Federal implementation 2016. because the specific type of contingency plan at any time within 2 years after [EPA] . . . disapproves a State ADDRESSES: The EPA has established measure at issue in that submittal was no longer a required attainment plan implementation plan in whole or in part docket number EPA–R09–OAR–2013– . . . .’’ Earthjustice asserts that 0534 for this action. Generally, element for the San Joaquin Valley (SJV) area. The California Air Resources contingency measures under CAA documents in the docket for this action section 172(c)(9) are required elements are available electronically at http:// Board (CARB) had submitted the 2013 Contingency Measure Submittal to for all attainment plans for www.regulations.gov or in hard copy at nonattainment areas and must provide EPA Region IX, 75 Hawthorne Street, address the contingency measure requirement in CAA section 172(c)(9) as for the implementation of specific San Francisco, California 94015–3901. measures that will be undertaken if the While all documents in the docket are applied to the 2008 PM2.5 Plan, which provided for attainment of the 1997 area fails to attain, regardless of the listed at http://www.regulations.gov, applicable attainment date. Although some information may be publicly PM2.5 NAAQS in the SJV by April 5, 2015, the latest permissible attainment EPA has some flexibility to establish a available only at the hard copy location schedule for submitting a plan meeting (e.g., copyrighted material, large maps), date for this area under subpart 1 of part D, title I of the Act. EPA stated in the the requirements of section 172(c), and some may not be publicly available according to Earthjustice, that schedule in either location (e.g., CBI). To inspect proposed rule that, as a consequence of EPA’s March 27, 2015 reclassification of may not be extended beyond three years the hard copy materials, please schedule from the date of the nonattainment the SJV area from ‘‘Moderate’’ to an appointment during normal business designation, a date that has passed for ‘‘Serious’’ nonattainment for the 1997 hours with the contact listed in the FOR the San Joaquin Valley. Earthjustice PM NAAQS, the specific requirement FURTHER INFORMATION CONTACT section. 2.5 argues that the contingency measure for contingency measures for failure to FOR FURTHER INFORMATION CONTACT: requirement was not a ‘‘Moderate area’’ attain as a Moderate area plan Doris Lo, EPA Region IX, (415) 972– requirement and is not reset or requirement had been eliminated and 3959, [email protected]. eliminated with reclassification under superseded by different planning subpart 4, and that although SUPPLEMENTARY INFORMATION: obligations under subpart 4 of part D, reclassification as a ‘‘Serious area’’ may Throughout this document, ‘‘we,’’ ‘‘us’’ title I of the Act.2 Because the State had and ‘‘our’’ refer to EPA. affect the tonnage of reductions that submitted the 2013 Contingency must be achieved, it does not eliminate Table of Contents Measure Submittal to address a the section 172(c)(9) requirement that contingency measure requirement for the District was required to meet years I. Proposed Action failure to attain by a statutory II. Public Comments and EPA Responses ago. For all of these reasons, Earthjustice III. Final Action attainment date that no longer applied argues that the disapproval of this IV. Statutory and Executive Order Reviews to the area (April 5, 2015), EPA submittal triggers a sanctions clock proposed to find that this SIP submittal I. Proposed Action under CAA section 179 and a FIP clock no longer addressed an applicable under section 110(c). On August 17, 2015, EPA proposed to requirement of part D, title I of the Act, Response: Upon further consideration withdraw its May 22, 2014 final action and that the disapproval of it therefore of these issues, EPA agrees with the approving California’s July 3, 2013 would not trigger sanctions. For the commenter that the disapproval of the submission to address contingency same reason, EPA proposed to find that 2013 Contingency Measure Submittal measure requirements for the 1997 disapproval of the submission would triggers a mandatory sanctions clock annual and 24-hour PM2.5 NAAQS in not create any deficiency in a under CAA section 179 and a FIP clock the San Joaquin Valley (2013 mandatory component of the SIP for the under section 110(c). Contingency Measure Submittal).1 area and, therefore, would not trigger Section 179(a) of the Act provides Simultaneously, EPA proposed to the obligation on EPA to promulgate a that, for any SIP revision required under disapprove this SIP submission. These FIP under section 110(c) of the Act.3 part D of title I of the Act or required proposed actions were in response to a II. Public Comments and EPA in response to a finding of substantial decision issued by the U.S. Court of Responses inadequacy as described in section Appeals for the Ninth Circuit remanding 110(k), if EPA disapproves a submission EPA’s approval of a related SIP EPA received one comment on the for a nonattainment area based on the submission and rejecting EPA’s proposed action, submitted by state’s failure to meet one or more of the rationale for approving SIP submissions Earthjustice. EPA summarizes and CAA requirements applicable to the that rely on California mobile source responds to the comment below. area, mandatory sanctions under section control measures not actually part of the 179(b) shall apply. The 2013 2 Id. at 49192. Contingency Measure Submittal was a 1 80 FR 49190 (August 17, 2015). 3 Id. plan revision required under part D of

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title I of the Act for the purposes of and annual standards, respectively, and under 40 CFR 93.120(a)(3) to the implementing the 1997 PM2.5 NAAQS in EPA has proposed to grant these disapproval of the contingency the SJV PM2.5 nonattainment area. As requests for extension of the attainment measures. Without a protective finding, explained in the proposed action, EPA date.5 If EPA takes final action to extend the final disapproval would result in a is disapproving the 2013 Contingency the Serious area attainment date for the conformity freeze, under which only Measure Submittal based on the failure 1997 PM2.5 NAAQS in the SJV, the State projects in the first four years of the to meet the contingency measure will be obligated to adopt and submit most recent conforming Regional requirement in CAA section 172(c)(9) contingency measures to be Transportation Plan and Transportation for the area—i.e., because of the reliance implemented if the SJV area fails to Improvement Programs can proceed. on California waiver measures that EPA make reasonable further progress or to During a freeze, no new RTPs, TIPs or has not approved into the California attain the 1997 PM2.5 NAAQS by the RTP/TIP amendments can be found to SIP. This disapproval triggers a extended attainment date(s) approved conform.7 Under this protective finding, mandatory sanctions clock under by EPA in that action. We encourage the the final disapproval of the contingency section 179. State and District to consult with EPA measures does not result in a Section 110(c) of the Act states that during their development of a corrective transportation conformity freeze in the EPA ‘‘shall promulgate a Federal SIP submission to ensure that it fully San Joaquin Valley PM2.5 nonattainment implementation plan at any time within satisfies the section 172(c)(9) area. 2 years after the Administrator—. . . (B) contingency measure requirement for IV. Statutory and Executive Order disapproves a State implementation the 1997 PM2.5 NAAQS in the SJV area plan submission in whole or in part,’’ and thereby corrects the current Reviews unless the State corrects the deficiency deficiency in the SIP. Additional information about these and EPA approves the plan or plan III. Final Action statutes and Executive Orders can be revision before promulgating such FIP. found at http://www2.epa.gov/laws- As a consequence of our disapproval of EPA is withdrawing its May 22, 2014 regulations/laws-and-executive-orders. the 2013 Contingency Measure final action approving the 2013 Submittal, the California SIP does not Contingency Measure Submittal. A. Executive Order 12866: Regulatory contain any contingency measures to be Simultaneously, under section 110(k)(3) Planning and Review and Executive triggered if the SJV area fails to attain of the Act, EPA is disapproving this SIP Order 13563: Improving Regulation and the 1997 PM2.5 NAAQS by the Serious submission for failure to satisfy the Regulatory Review requirements of CAA section 172(c)(9). area attainment date, which is currently This action is not a significant Under section 179(a) of the CAA, a December 31, 2015. Because this regulatory action and was therefore not final disapproval of a submittal that disapproval creates a deficiency in the submitted to the Office of Management addresses a requirement of part D of title SIP, the disapproval triggers the and Budget (OMB) for review. obligation on EPA to promulgate a FIP I of the CAA or is required in response under section 110(c), unless the State to a finding of substantial inadequacy as B. Paperwork Reduction Act (PRA) submits and EPA approves a SIP described in CAA section 110(k)(5) (SIP This action does not impose an revision correcting the deficiency Call), triggers a sanction clock under information collection burden under the within two years of the disapproval. CAA section 179(b) that runs from the As explained in the proposed action, effective date of the final action. The PRA, because this SIP disapproval does contingency measures for failure to first sanction, the offset sanction in CAA not in-and-of itself create any new attain by the Moderate area attainment section 179(b)(2), will apply in the SJV information collection burdens, but simply disapproves certain State date are no longer required in the SJV PM nonattainment area 18 months 2.5 requirements for inclusion in the SIP. as the requirement for such measures after June 13, 2016. The second has been superseded by the requirement sanction, highway funding sanctions in C. Regulatory Flexibility Act (RFA) for contingency measures as part of a CAA section 179(b)(1), will apply in the I certify that this action will not have Serious area plan for the 1997 PM2.5 area six months after the offset sanction NAAQS in this area.4 Thus, the State is is imposed. Neither sanction will be a significant economic impact on a no longer required to adopt contingency imposed under the CAA if California substantial number of small entities measures for failure to attain by April 5, submits and we approve, prior to the under the RFA. This action will not 2015. Because the SJV area is currently implementation of the sanctions, a SIP impose any requirements on small classified as a Serious nonattainment submission that corrects the deficiencies entities. This SIP disapproval does not in-and-of itself create any new area for the 1997 PM2.5 NAAQS, identified in this final action. however, the State must satisfy the In addition to the sanctions, CAA requirements but simply disapproves contingency measure requirement in section 110(c)(1) provides that EPA certain State requirements for inclusion section 172(c)(9) as applied to a Serious must promulgate a federal in the SIP. area attainment plan to provide for implementation plan (FIP) addressing D. Unfunded Mandates Reform Act attainment of the 1997 PM2.5 NAAQS in the deficiency at any time within two (UMRA) the SJV no later than the applicable years after June 13, 2016, the effective attainment date, which is currently date of this rule, unless the state makes This action does not contain any December 31, 2015. a SIP submission to correct the unfunded mandate as described in California submitted a Serious area deficiency and EPA approves such UMRA, 2 U.S.C. 1531–1538, and does plan for the 1997 PM2.5 NAAQS in the submission before promulgating a FIP. not significantly or uniquely affect small SJV on June 25, 2015, together with Because we previously approved the governments. This action disapproves requests for extension of the Serious RFP and attainment demonstrations and pre-existing requirements under State or area attainment date under CAA section the motor vehicle emissions budgets,6 local law, and imposes no new 188(e) to December 31, 2018 and we are issuing a protective finding requirements. Accordingly, no December 31, 2020 for the 1997 24-hour additional costs to State, local, or tribal 5 81 FR 6936 at 6938 (February 9, 2016). 4 Id. at 49192 (August 17, 2015). 6 76 FR 69896 (November 9, 2011). 7 40 CFR 93.120(a)(2).

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governments, or to the private sector, J. Executive Order 12898: Federal (c)(438)(ii)(A)(3), and (c)(438)(ii)(B)(1) of result from this action. Actions To Address Environmental this section and now deleted without Justice in Minority Populations and replacement: ‘‘Quantifying Contingency E. Executive Order 13132: Federalism Low-Income Population Reductions for the 2008 PM2.5 Plan’’ This action does not have federalism The EPA lacks the discretionary (dated June 20, 2013), SJVUAPCD implications. It will not have substantial authority to address environmental Governing Board Resolution No. 13–6– direct effects on the states, on the justice in this rulemaking. 18 (dated June 20, 2013), Electronic mail relationship between the national (dated July 24, 2013) from Samir Sheikh government and the states, or on the K. Congressional Review Act (CRA) to Kerry Drake, and California Air distribution of power and This action is subject to the CRA, and Resources Board Executive Order 13–30 responsibilities among the various the EPA will submit a rule report to (dated June 27, 2013). levels of government. each House of the Congress and to the * * * * * Comptroller General of the United F. Executive Order 13175: Coordination ■ 3. Section 52.237 is amended by States. This action is not a ‘‘major rule’’ With Indian Tribal Governments adding paragraph (a)(8) to read as as defined by 5 U.S.C. 804(2). follows: This action does not have tribal L. Petitions for Judicial Review implications, as specified in Executive § 52.237 Part D disapproval. Order 13175, because the SIP revision Under section 307(b)(1) of the Clean (a) * * * that the EPA is disapproving would not Air Act, petitions for judicial review of (8) The contingency measure portion apply on any Indian reservation land or this action must be filed in the United of the 2008 PM2.5 Plan for attainment of in any other area where the EPA or an States Court of Appeals for the the 1997 PM2.5 standards in the San Indian tribe has demonstrated that a appropriate circuit by July 11, 2016. Joaquin Valley (June 2013). Filing a petition for reconsideration by tribe has jurisdiction, and will not [FR Doc. 2016–11125 Filed 5–11–16; 8:45 am] the Administrator of this final rule does impose substantial direct costs on tribal BILLING CODE 6560–50–P governments or preempt tribal law. not affect the finality of this rule for the Thus, Executive Order 13175 does not purposes of judicial review nor does it apply to this action. extend the time within which a petition for judicial review may be filed, and DEPARTMENT OF COMMERCE G. Executive Order 13045: Protection of shall not postpone the effectiveness of Children From Environmental Health such rule or action. This action may not National Oceanic and Atmospheric Risks and Safety Risks be challenged later in proceedings to Administration enforce its requirements (see section The EPA interprets Executive Order 307(b)(2)). 50 CFR Part 635 13045 as applying only to those regulatory actions that concern List of Subjects in 40 CFR Part 52 [Docket No. 150121066–5717–02] environmental health or safety risks that Environmental protection, Air RIN 0648–XE579 the EPA has reason to believe may pollution control, Incorporation by disproportionately affect children, per reference, Intergovernmental relations, Atlantic Highly Migratory Species; the definition of ‘‘covered regulatory Nitrogen dioxide, Particulate matter, Atlantic Bluefin Tuna Fisheries action’’ in section 2–202 of the Sulfur oxides. Executive Order. This action is not AGENCY: National Marine Fisheries subject to Executive Order 13045 Dated: April 29, 2016. Service (NMFS), National Oceanic and because this SIP disapproval does not Jared Blumenfeld, Atmospheric Administration (NOAA), in-and-of itself create any new Regional Administrator, Region IX. Commerce. regulations, but simply disapproves Part 52, Chapter I, Title 40 of the Code ACTION: Temporary rule; inseason certain State requirements for inclusion of Federal Regulations is amended as General category retention limit in the SIP. follows: adjustment.

H. Executive Order 13211: Actions That PART 52—APPROVAL AND SUMMARY: NMFS is adjusting the Significantly Affect Energy Supply, PROMULGATION OF Atlantic bluefin tuna (BFT) General Distribution, or Use IMPLEMENTATION PLANS category daily retention limit from the This action is not subject to Executive default limit of one large medium or ■ 1. The authority citation for part 52 Order 13211, because it is not a giant BFT to five large medium or giant continues to read as follows: significant regulatory action under BFT for June 1 through August 31, 2016. Executive Order 12866. Authority: 42 U.S.C. 7401 et seq. This action is based on consideration of the regulatory determination criteria I. National Technology Transfer and Subpart F—California regarding inseason adjustments, and Advancement Act (NTTAA) applies to Atlantic Tunas General ■ 2. Section 52.220 is amended by category (commercial) permitted vessels Section 12(d) of the NTTAA directs adding paragraph (c)(438)(ii)(C) to read and Highly Migratory Species (HMS) the EPA to use voluntary consensus as follows: Charter/Headboat category permitted standards in its regulatory activities § 52.220 Identification of plan. vessels when fishing commercially for unless to do so would be inconsistent BFT. with applicable law or otherwise * * * * * impractical. The EPA believes that this (c) * * * DATES: Effective June 1, 2016, through action is not subject to the requirements (438) * * * August 31, 2016. of section 12(d) of the NTTAA because (ii) * * * FOR FURTHER INFORMATION CONTACT: application of those requirements would (C) Previously approved in paragraphs Sarah McLaughlin or Brad McHale, be inconsistent with the CAA. (c)(438)(ii)(A)(1), (c)(438)(ii)(A)(2), 978–281–9260.

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SUPPLEMENTARY INFORMATION: March 31, 2015 (the regulations allow usefulness of information obtained from Regulations implemented under the the General category fishery under the catches in the particular category for authority of the Atlantic Tunas ‘‘January’’ subquota to continue until biological sampling and monitoring of Convention Act (ATCA; 16 U.S.C. 971 et the subquota is reached, or March 31, the status of the stock, biological seq.) and the Magnuson-Stevens Fishery whichever comes first); four large samples collected from BFT landed by Conservation and Management Act medium or giant BFT for the June General category fishermen and (Magnuson-Stevens Act; 16 U.S.C. 1801 through August subquota period (80 FR provided by BFT dealers continue to et seq.) governing the harvest of BFT by 27863, May 15, 2015) as well as for provide NMFS with valuable data for persons and vessels subject to U.S. September 1 through November 27, ongoing scientific studies of BFT age jurisdiction are found at 50 CFR part 2015 (80 FR 51959, August 27, 2015); and growth, migration, and reproductive 635. Section 635.27 subdivides the U.S. and three large medium or giant BFT for status. Additional opportunity to land BFT quota recommended by the November 28 through December 31, BFT would support the collection of a International Commission for the 2015 (80 FR 74997, December 1, 2015). broad range of data for these studies and Conservation of Atlantic Tunas (ICCAT) NMFS adjusted the daily retention limit for stock monitoring purposes. among the various domestic fishing for the 2016 January subquota period Regarding the effects of the categories, per the allocations (which closed March 31) from the adjustment on BFT rebuilding and established in the 2006 Atlantic default level of one large medium or overfishing and the effects of the Consolidated Highly Migratory Species giant BFT to three large medium or giant adjustment on accomplishing the Fishery Management Plan (2006 BFT in the same action as the 24.3-mt objectives of the FMP, as this action Consolidated HMS FMP) (71 FR 58058, transfer from the December 2016 would be taken consistent with the October 2, 2006), as amended by subquota period to the January 2016 previously implemented and analyzed Amendment 7 to the 2006 Consolidated subquota period (80 FR 77264, quotas, it is not expected to negatively HMS FMP (Amendment 7) (79 FR December 14, 2015). impact stock health or otherwise affect 71510, December 2, 2014), and in Under § 635.23(a)(4), NMFS may the stock in ways not previously accordance with implementing increase or decrease the daily retention analyzed, including on rebuilding, regulations. NMFS is required under limit of large medium and giant BFT overfishing, or the objectives of the ATCA and the Magnuson-Stevens Act to over a range of zero to a maximum of FMP. It is also supported by the provide U.S. fishing vessels with a five per vessel based on consideration of Environmental Analysis for the 2011 reasonable opportunity to harvest the the relevant criteria provided under final rule regarding General and ICCAT-recommended quota. § 635.27(a)(8), which are: The Harpoon category management The currently codified baseline U.S. usefulness of information obtained from measures, which increased the General quota is 1,058.9 mt (not including the 25 catches in the particular category for category maximum daily retention limit mt ICCAT allocated to the United States biological sampling and monitoring of from three to five fish (76 FR 74003, to account for bycatch of BFT in pelagic the status of the stock; the catches of the November 30, 2011). longline fisheries in the Northeast particular category quota to date and the Another principal consideration in Distant Gear Restricted Area). Among likelihood of closure of that segment of setting the retention limit is the other things, Amendment 7 revised the the fishery if no adjustment is made; the objective of providing opportunities to allocations to all quota categories, projected ability of the vessels fishing harvest the full General category quota effective January 1, 2015. See under the particular category quota to without exceeding it based on the goals § 635.27(a). The currently codified harvest the additional amount of BFT of the 2006 Consolidated HMS FMP and General category quota is 466.7 mt. Each before the end of the fishing year; the Amendment 7, including to achieve of the General category time periods estimated amounts by which quotas for optimum yield on a continuing basis (‘‘January,’’ June through August, other gear categories of the fishery might and to optimize the ability of all permit September, October through November, be exceeded; effects of the adjustment categories to harvest their full BFT and December) is allocated a portion of on BFT rebuilding and overfishing; quota allocations. This retention limit the annual General category quota. The effects of the adjustment on would be consistent with the quotas codified June through August subquota accomplishing the objectives of the established and analyzed in the BFT is 233.3 mt. FMP; variations in seasonal distribution, quota final rule (80 FR 52198, August abundance, or migration patterns of 28, 2015), and with objectives of the Adjustment of General Category Daily BFT; effects of catch rates in one area 2006 Consolidated HMS FMP and Retention Limit precluding vessels in another area from amendments, and is not expected to Unless changed, the General category having a reasonable opportunity to negatively impact stock health or to daily retention limit starting on June 1 harvest a portion of the category’s quota; affect the stock in ways not already would be the default retention limit of review of dealer reports, daily landing analyzed in those documents. It is also one large medium or giant BFT trends, and the availability of the BFT important that NMFS limit landings to (measuring 73 inches (185 cm) curved on the fishing grounds; optimizing BFT subquotas both to adhere to the fork length (CFL) or greater) per vessel fishing opportunity; accounting for dead FMP quota allocations and to ensure per day/trip (§ 635.23(a)(2)). This discards, facilitating quota monitoring, that landings are as consistent as default retention limit would apply to supporting other fishing monitoring possible with the pattern of fishing General category permitted vessels and programs through quota allocations and/ mortality (e.g., fish caught at each age) to HMS Charter/Headboat category or generation of revenue; and support of that was assumed in the projections of permitted vessels when fishing research through quota allocations and/ stock rebuilding. commercially for BFT. For the 2015 or generation of revenue. Commercial-size BFT are anticipated fishing year, NMFS adjusted the daily NMFS has considered these criteria to migrate to the fishing grounds off the retention limit from the default level of and their applicability to the General northeast U.S. coast by early June. Based one large medium or giant BFT to three category BFT retention limit for June on General category landings rates large medium or giant BFT for the through August 2016. These during the June through August time January subquota period (79 FR 77943, considerations include, but are not period over the last several years, it is December 29, 2014), which closed limited to, the following: Regarding the highly unlikely that the June through

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August subquota will be filled with the A limit lower than five fish could to submit landing reports within 24 default daily retention limit of one BFT result in unused quota being added to hours of a dealer receiving BFT. per vessel, and it may not be filled at a the later portion of the General category General, HMS Charter/Headboat, four-BFT limit if recent patterns of BFT season (i.e., rolling forward to the Harpoon, and Angling category vessel availability and landings rates continue. subsequent subquota time period). owners are required to report the catch During the June–August 2014 period, Increasing the daily retention limit from of all BFT retained or discarded dead, under a four-fish limit, BFT landings the default may mitigate rolling an within 24 hours of the landing(s) or end were approximately 107 mt (49 percent excessive amount of unused quota from of each trip, by accessing of the subquota). In the June–August one subquota time period to the next. hmspermits.noaa.gov. Depending on the 2015 period, under a four-fish limit, Increasing the daily retention limit to level of fishing effort and catch rates of BFT landings were approximately 205 five fish will increase the likelihood that BFT, NMFS may determine that mt (44 percent of the subquota). For the the General category BFT landings will additional adjustment or closure is entire 2015 fishing year, 131.7 percent approach, but not exceed, the annual necessary to ensure available quota is and 95.1 percent of the baseline and quota, as well as increase the not exceeded or to enhance scientific adjusted General category quota was opportunity for catching BFT during the data collection from, and fishing filled, respectively. See below for June through August subquota period. opportunities in, all geographic areas. If description of 2015 quota transfers to Increasing opportunity within each needed, subsequent adjustments will be the General category. subquota period is also important published in the Federal Register. In Despite elevated General category because of the migratory nature and addition, fishermen may call the limits, the vast majority of successful seasonal distribution of BFT. In a Atlantic Tunas Information Line at (978) trips (i.e., General or Charter/Headboat particular geographic region, or waters 281–9260, or access trips on which at least one BFT is accessible from a particular port, the hmspermits.noaa.gov, for updates on landed under General category quota) amount of fishing opportunity for BFT quota monitoring and inseason land only one or two BFT. For instance, may be constrained by the short amount adjustments. of time the BFT are present. the landings data for 2015 show that, Classification under the four-fish limit that applied Based on these considerations, NMFS The Assistant Administrator for June 1 through November 27, the has determined that a five-fish General NMFS (AA) finds that it is impracticable proportion of trips that landed one, two, category retention limit is warranted for the June–August 2016 subquota period. and contrary to the public interest to three, or four BFT was as follows: 76 It would provide a reasonable provide prior notice of, and an percent landed one BFT; 14 percent opportunity to harvest the full U.S. BFT opportunity for public comment on, this landed two BFT; 5 percent landed three quota (including the expected increases action for the following reasons: BFT; and 5 percent landed four BFT. In in available 2016 quota later in the Prior notice is impracticable because the last few years, NMFS has received year), without exceeding it, while the regulations implementing the 2006 some comment that a high daily maintaining an equitable distribution of Consolidated HMS FMP, as amended, retention limit (specifically five fish) is fishing opportunities; help optimize the intended that inseason retention limit needed to optimize General category ability of the General category to harvest adjustments would allow the agency to fishing opportunities and account for its full quota; allow the collection of a respond quickly to the unpredictable seasonal distributions by enabling broad range of data for stock monitoring nature of BFT availability on the fishing vessels to make overnight trips to purposes; and be consistent with the grounds, the migratory nature of this distant fishing grounds. objectives of the 2006 Consolidated species, and the regional variations in NMFS anticipates that some HMS FMP, as amended. Therefore, the BFT fishery. Based on available BFT underharvest of the 2015 adjusted U.S. NMFS increases the General category quotas, fishery performance in recent BFT quota will be carried forward to retention limit from the default limit years, and the availability of BFT on the 2016 to the Reserve category, in (one) to five large medium or giant BFT fishing grounds, responsive adjustment accordance with the regulations per vessel per day/trip, effective June 1, to the General category BFT daily implementing Amendment 7, this 2016, through August 31, 2016. retention limit from the default level is summer (i.e., when complete BFT catch Regardless of the duration of a fishing warranted to allow fishermen to take information for 2015 is available and trip, no more than a single day’s advantage of the availability of fish and finalized). This, in addition to the fact retention limit may be possessed, of quota. For such adjustment to be that any unused General category quota retained, or landed. For example (and practicable, it must occur in a timeframe will roll forward to the next subperiod specific to the June through August that allows fishermen to take advantage within the calendar year, makes it 2016 limit), whether a vessel fishing of it. possible that General category quota under the General category limit takes a Fisheries under the General category will remain available through the end of two-day trip or makes two trips in one daily retention limit will commence on 2016 for December fishery participants, day, the daily limit of five fish may not June 1 and thus prior notice would be even if NMFS sets higher daily retention be exceeded upon landing. This General contrary to the public interest. Delays in limits for the earlier periods. NMFS also category retention limit is effective in all increasing these retention limits would may choose to transfer unused quota areas, except for the Gulf of Mexico, adversely affect those General and from the Reserve or other categories, where NMFS prohibits targeting fishing Charter/Headboat category vessels that inseason, based on consideration of the for BFT, and applies to those vessels would otherwise have an opportunity to determination criteria, as NMFS did for permitted in the General category, as harvest more than the default retention late 2015 (80 FR 68265, November 4, well as to those HMS Charter/Headboat limit of one BFT per day/trip and may 2015; 80 FR 74997, December 1, 2015). permitted vessels fishing commercially result in low catch rates and quota Therefore, NMFS anticipates that for BFT. rollovers. Analysis of available data General category participants in all shows that adjustment to the BFT daily areas and time periods will have Monitoring and Reporting retention limit from the default level opportunities to harvest the General NMFS will continue to monitor the would result in minimal risks of category quota. BFT fishery closely. Dealers are required exceeding the ICCAT-allocated quota.

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With quota available and fish available the impacted sectors to benefit from the good cause under 5 U.S.C. 553(d) to on the grounds, and with no measurable adjustment, and to not preclude fishing waive the 30-day delay in effectiveness. impacts to the stock, it would be opportunities for fishermen in This action is being taken under contrary to the public interest to require geographic areas with access to the §§ 635.23(a)(4) and is exempt from vessels to wait to harvest the fish fishery only during this time period. review under Executive Order 12866. allowed through this action. Therefore, Foregoing opportunities to harvest the Authority: 16 U.S.C. 971 et seq. and 1801 the AA finds good cause under 5 U.S.C. respective quotas may have negative et seq. 553(b)(B) to waive prior notice and the social and economic impacts for U.S. Dated: May 9, 2016. opportunity for public comment. fishermen that depend upon catching Adjustment of the General category Emily H. Menashes, the available quota within the time retention limit needs to be effective June Acting Director, Office of Sustainable periods designated in the 2006 1, 2016, or as soon as possible Fisheries, National Marine Fisheries Service. thereafter, to minimize any unnecessary Consolidated HMS FMP, as amended. [FR Doc. 2016–11230 Filed 5–11–16; 8:45 am] Therefore, the AA finds there is also disruption in fishing patterns, to allow BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 81, No. 92

Thursday, May 12, 2016

This section of the FEDERAL REGISTER • Fax: 202–493–2251. FAA–2016–6670; Directorate Identifier contains notices to the public of the proposed • Mail: U.S. Department of 2016–NM–006–AD’’ at the beginning of issuance of rules and regulations. The Transportation, Docket Operations, M– your comments. We specifically invite purpose of these notices is to give interested 30, West Building Ground Floor, Room comments on the overall regulatory, persons an opportunity to participate in the W12–140, 1200 New Jersey Avenue SE., economic, environmental, and energy rule making prior to the adoption of the final Washington, DC 20590. rules. aspects of this proposed AD. We will • Hand Delivery: Deliver to Mail consider all comments received by the address above between 9 a.m. and 5 closing date and may amend this DEPARTMENT OF TRANSPORTATION p.m., Monday through Friday, except proposed AD because of those Federal holidays. comments. Federal Aviation Administration For service information identified in We will post all comments we this NPRM, contact Boeing Commercial receive, without change, to http:// 14 CFR Part 39 Airplanes, Attention: Data & Services www.regulations.gov, including any Management, P.O. Box 3707, MC 2H–65, personal information you provide. We [Docket No. FAA–2016–6670; Directorate Seattle, WA 98124–2207; telephone will also post a report summarizing each Identifier 2016–NM–006–AD] 206–544–5000, extension 1; fax 206– substantive verbal contact we receive RIN 2120–AA64 766–5680; Internet https:// about this proposed AD. www.myboeingfleet.com. You may view Discussion Airworthiness Directives; The Boeing this referenced service information at Company Airplanes the FAA, Transport Airplane On September 9, 2013, we issued AD 2013–19–04, Amendment 39–17586 (78 AGENCY: Federal Aviation Directorate, 1601 Lind Avenue SW., FR 59801, September 30, 2013) (‘‘AD Administration (FAA), DOT. Renton, WA. For information on the availability of this material at the FAA, 2013–19–04’’), for certain The Boeing ACTION: Notice of proposed rulemaking Company Model 737–600, –700, –700C, (NPRM). call 425–227–1221. It is also available on the Internet at http:// –800, and –900 series airplanes. AD SUMMARY: We propose to supersede www.regulations.gov by searching for 2013–19–04 requires repetitive detailed Airworthiness Directive (AD) 2013–19– and locating Docket No. FAA–2016– and HFEC inspections for cracking of 04, which applies to certain The Boeing 6670. the skin around the eight fasteners Company Model 737–600, –700, –700C, common to the ends of the STA 540 Examining the AD Docket –800, and –900 series airplanes. AD bulkhead chords between stringers S–22 2013–19–04 currently requires You may examine the AD docket on and S–23, left and right sides; related repetitive detailed and high frequency the Internet at http:// investigative actions and corrective eddy current (HFEC) inspections for www.regulations.gov by searching for actions, if necessary; and provides an cracking of the skin around the eight and locating Docket No. FAA–2016– optional terminating modification. AD fasteners common to the ends of the 6670; or in person at the Docket 2013–19–04 resulted from a report of station (STA) 540 bulkhead chords Management Facility between 9 a.m. cracks found in the skin at body STA between stringers S–22 and S–23, left and 5 p.m., Monday through Friday, 540 just below the left side of stringer and right sides; related investigative except Federal holidays. The AD docket S–22 on a Model 737–700 series actions and corrective actions, if contains this proposed AD, the airplane. We issued AD 2013–19–04 to necessary; and provides an optional regulatory evaluation, any comments detect and correct fatigue cracking in terminating modification. Since we received, and other information. The the fuselage skin around the eight issued AD 2013–19–04, we have street address for the Docket Office fasteners securing the STA 540 received reports of additional cracks (phone: 800–647–5527) is in the bulkhead chords, which can result in that are larger and initiated sooner than ADDRESSES section. Comments will be rapid decompression of the cabin. previously predicted. This proposed AD available in the AD docket shortly after Actions Since AD 2013–19–04 Was would reduce the inspection threshold receipt. Issued and repetitive inspection intervals. We FOR FURTHER INFORMATION CONTACT: Since we issued AD 2013–19–04, we are proposing this AD to detect and Alan Pohl, Aerospace Engineer, have received reports of cracks that correct fatigue cracking in the fuselage Airframe Branch, ANM–120S, FAA, initiated sooner and are larger than skin around the eight fasteners securing Seattle Aircraft Certification Office, previously predicted. the STA 540 bulkhead chords. Such 1601 Lind Avenue SW., Renton, WA cracking can result in rapid 98057–3356; phone: 425–917–6450; fax: Related Service Information Under 1 decompression of the cabin. 425–917–6590; email: alan.pohl@ CFR Part 51 DATES: We must receive comments on faa.gov. We reviewed Boeing Special this proposed AD by June 27, 2016. SUPPLEMENTARY INFORMATION: Attention Service Bulletin 737–53– ADDRESSES: You may send comments, 1294, Revision 2, dated December 9, using the procedures found in 14 CFR Comments Invited 2015, which specifies procedures for 11.43 and 11.45, by any of the following We invite you to send any written doing inspections for cracking of the methods: relevant data, views, or arguments about skin around the eight fasteners common • Federal eRulemaking Portal: Go to this proposed AD. Send your comments to the ends of the STA 540 bulkhead http://www.regulations.gov. Follow the to an address listed under the chords between stringers S–22 and S– instructions for submitting comments. ADDRESSES section. Include ‘‘Docket No. 23, left and right sides, repairing cracks,

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and installing a chord splice as a of this proposed AD. This proposed AD Differences Between This Proposed AD preventive modification on crack-free would require accomplishing the and the Service Information skin. This service information is actions specified in the service Boeing Special Attention Service reasonably available because the information described previously, Bulletin 737–53–1294, Revision 2, dated interested parties have access to it except as discussed under ‘‘Differences December 9, 2015, specifies to contact through their normal course of business Between this Proposed AD and the the manufacturer for instructions on or by the means identified in the Service Information.’’ For information how to repair certain conditions, but ADDRESSES section. on the procedures and compliance this proposed AD would require times, see this service information at FAA’s Determination accomplishment of repair methods, http://www.regulations.gov by searching modification deviations, and alteration We are proposing this AD because we for and locating Docket No. FAA–2016– deviations in one of the following ways: evaluated all the relevant information 6670. • In accordance with a method that and determined the unsafe condition The phrase ‘‘related investigative we approve; or described previously is likely to exist or actions’’ is used in this proposed AD. • Using data that meet the develop in other products of the same Related investigative actions are follow- certification basis of the airplane, and type designs. on actions that (1) are related to the that have been approved by the Boeing primary action, and (2) further Proposed AD Requirements Commercial Airplanes Organization investigate the nature of any condition Designation Authorization (ODA) whom Although this proposed AD does not found. Related investigative actions in we have authorized to make those explicitly restate the requirements of AD an AD could include, for example, findings. 2013–19–04, this proposed AD would inspections. retain all of the requirements of AD The phrase ‘‘corrective actions’’ is Costs of Compliance 2013–19–04. Those requirements are used in this proposed AD. Corrective We estimate that this proposed AD referenced in the service information actions correct or address any condition affects 903 airplanes of U.S. registry. We identified previously, which, in turn, is found. Corrective actions in an AD estimate the following costs to comply referenced in paragraphs (g) through (k) could include, for example, repairs. with this proposed AD:

ESTIMATED COSTS

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

Inspection (left and right 12 work-hours × $85 per hour = $1,020 $0 $1,020 per inspection $921,060 per inspection side skins). per inspection cycle. cycle. cycle.

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

ON-CONDITION COSTS

Cost per Action Labor cost Parts cost product

Preventive modification (each side) ...... 7 work-hours × $85 per hour = $595 ...... $894 ...... $1,489. Skin repair (each side) ...... 39 work-hours × $85 per hour = $3,315 ...... Up to $5,635 ..... Up to $8,950.

According to the manufacturer, some ‘‘General requirements.’’ Under that on the distribution of power and of the costs of this proposed AD may be section, Congress charges the FAA with responsibilities among the various covered under warranty, thereby promoting safe flight of civil aircraft in levels of government. reducing the cost impact on affected air commerce by prescribing regulations For the reasons discussed above, I individuals. We do not control warranty for practices, methods, and procedures certify that the proposed regulation: coverage for affected individuals. As a the Administrator finds necessary for result, we have included all costs in our safety in air commerce. This regulation (1) Is not a ‘‘significant regulatory cost estimate. is within the scope of that authority action’’ under Executive Order 12866, because it addresses an unsafe condition Authority for This Rulemaking (2) Is not a ‘‘significant rule’’ under that is likely to exist or develop on the DOT Regulatory Policies and Title 49 of the United States Code products identified in this rulemaking Procedures (44 FR 11034, February 26, specifies the FAA’s authority to issue action. 1979), rules on aviation safety. Subtitle I, Regulatory Findings Section 106, describes the authority of (3) Will not affect intrastate aviation in Alaska, and the FAA Administrator. Subtitle VII, We have determined that this Aviation Programs, describes in more proposed AD would not have federalism (4) Will not have a significant detail the scope of the Agency’s implications under Executive Order economic impact, positive or negative, authority. 13132. This proposed AD would not on a substantial number of small entities We are issuing this rulemaking under have a substantial direct effect on the under the criteria of the Regulatory the authority described in Subtitle VII, States, on the relationship between the Flexibility Act. Part A, Subpart III, Section 44701, national Government and the States, or

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List of Subjects in 14 CFR Part 39 STA 540 bulkhead chords between stringers action: Before further flight, repair using a S–22 and S–23; and do all applicable related method approved in accordance with the Air transportation, Aircraft, Aviation investigative and corrective actions; in procedures specified in paragraph (l) of this safety, Incorporation by reference, accordance with Parts 1, 2, 3, 4, and 5 of the AD. Safety. Accomplishment Instructions of Boeing (4) The access and restoration instructions The Proposed Amendment Special Attention Service Bulletin 737–53– identified in the Accomplishment 1294, Revision 2, dated December 9, 2015, Instructions of Boeing Special Attention Accordingly, under the authority except as required by paragraphs (i)(3) and Service Bulletin 737–53–1294, Revision 2, delegated to me by the Administrator, (i)(4) of this AD. Do all applicable related dated December 9, 2015, are not required by the FAA proposes to amend 14 CFR part investigative and corrective actions before this AD. Operators may perform those actions 39 as follows: further flight. Repeat the detailed and HFEC in accordance with approved maintenance inspections thereafter at the intervals procedures. specified in table 1 of paragraph 1.E., PART 39—AIRWORTHINESS (j) Part 26 Supplemental Inspections Not DIRECTIVES ‘‘Compliance,’’ of Boeing Special Attention Service Bulletin 737–53–1294, Revision 2, Required by This AD ■ 1. The authority citation for part 39 dated December 9, 2015, until the optional Table 2 of paragraph 1.E., ‘‘Compliance,’’ continues to read as follows: preventive modification specified in of Boeing Special Attention Service Bulletin paragraph (h) of this AD is done. 737–53–1294, Revision 2, dated December 9, Authority: 49 U.S.C. 106(g), 40113, 44701. 2015, specifies post-modification (h) Optional Preventive Modification airworthiness limitation inspections in § 39.13 [Amended] Accomplishing the preventive compliance with 14 CFR 25.571(a)(3) at the ■ 2. The FAA amends § 39.13 by modification or repair, including an HFEC modified locations, which support removing Airworthiness Directive (AD) inspection for cracking of the skin and STA compliance with 14 CFR 121.1109(c)(2) or 2013–19–04, Amendment 39–17586 (78 540 bulkhead chords, and all applicable 129.109(b)(2). As airworthiness limitations, FR 59801, September 30, 2013), and repairs, in accordance with paragraph 3.B, these inspections are required by adding the following new AD: Part 2 or Part 4 (left side), and Part 3 or Part maintenance and operational rules. It is 5 (right side), of the Accomplishment therefore unnecessary to mandate them in The Boeing Company: Docket No. FAA– Instructions of Boeing Special Attention this AD. Deviations from these inspections 2016–6670; Directorate Identifier 2016– Service Bulletin 737–53–1294, Revision 2, require FAA approval, but do not require an NM–006–AD. dated December 9, 2015, except as required alternative method of compliance. (a) Comments Due Date by paragraph (i)(2) of this AD, terminates the inspection requirements of paragraph (g) of (k) Credit for Previous Actions The FAA must receive comments on this this AD for the side on which the This paragraph provides credit for the AD action by June 27, 2016. modification is done. actions required by paragraphs (g) and (h) of (b) Affected ADs this AD, if those actions were performed (i) Exceptions to Service Bulletin before the effective date of this AD using This AD replaces AD 2013–19–04, Specifications Boeing Special Attention Service Bulletin Amendment 39–17586 (78 FR 59801, (1) Where paragraph 1.E., ‘‘Compliance,’’ of 737–53–1294, dated March 31, 2011, which September 30, 2013) (‘‘AD 2013–19–04’’). Boeing Special Attention Service Bulletin is not incorporated by reference in this AD; (c) Applicability 737–53–1294, Revision 2, dated December 9, or Boeing Special Attention Service Bulletin 2015, specifies a compliance time ‘‘after the This AD applies to The Boeing Company 737–53–1294, Revision 1, dated June 14, Revision 2 date of this service bulletin,’’ this Model 737–600, –700, –700C, –800, and –900 2013, which is incorporated by reference in series airplanes; certificated in any category; AD requires compliance within the specified AD 2013–19–04. as identified in Boeing Special Attention compliance time after the effective date of this AD. (l) Alternative Methods of Compliance Service Bulletin 737–53–1294, Revision 2, (AMOCs) dated December 9, 2015. (2) For airplanes on which Boeing Business Jet Lower Cabin Altitude Supplemental Type (1) The Manager, Seattle Aircraft (d) Subject Certificate (STC) ST01697SE (http:// Certification Office (ACO), FAA, has the _ _ _ Air Transport Association (ATA) of rgl.faa.gov/Regulatory and Guidance authority to approve AMOCs for this AD, if America Code 53, Fuselage. Library/rgstc.nsf/0/ requested using the procedures found in 14 0812969a86af879b8625766400600105/$FILE/ CFR 39.19. In accordance with 14 CFR 39.19, (e) Unsafe Condition ST01697SE.pdf) (6,500 feet maximum cabin send your request to your principal inspector This AD was prompted by a report of altitude in lieu of 8,000 feet) has been or local Flight Standards District Office, as cracks found in the skin at body station incorporated, the flight-cycle related appropriate. If sending information directly (STA) 540 just below the left side of stringer compliance times for the inspection required to the manager of the ACO, send it to the S–22. We are issuing this AD to detect and by paragraph (g) of this AD are different from attention of the person identified in correct fatigue cracking in the fuselage skin those specified in paragraph 1.E., paragraph (m) of this AD. Information may be around the eight fasteners securing the STA ‘‘Compliance,’’ of Boeing Special Attention emailed to: 9-ANM-Seattle-ACO-AMOC- 540 bulkhead chords, which can result in Service Bulletin 737–53–1294, Revision 2, [email protected]. rapid decompression of the cabin. dated December 9, 2015. All initial (2) Before using any approved AMOC, compliance times specified in total flight notify your appropriate principal inspector, (f) Compliance cycles or flight cycles must be reduced to half or lacking a principal inspector, the manager Comply with this AD within the of those specified in Boeing Special of the local flight standards district office/ compliance times specified, unless already Attention Service Bulletin 737–53–1294, certificate holding district office. done. Revision 2, dated December 9, 2015. All (3) An AMOC that provides an acceptable repetitive interval compliance times level of safety may be used for any repair, (g) Inspection and Corrective Action specified in flight cycles must be reduced to modification, or alteration required by this Except as required by paragraphs (i)(1) and one-quarter of those specified in paragraph AD if it is approved by the Boeing (i)(2) of this AD, at the applicable time 1.E., ‘‘Compliance,’’ of Boeing Special Commercial Airplanes Organization specified in table 1 of paragraph 1.E. Attention Service Bulletin 737–53–1294, Designation Authorization (ODA) that has ‘‘Compliance,’’ of Boeing Special Attention Revision 2, dated December 9, 2015. been authorized by the Manager, Seattle Service Bulletin 737–53–1294, Revision 2, (3) If any cracking is found during any ACO, to make those findings. To be dated December 9, 2015: Do detailed and inspection required by this AD, and Boeing approved, the repair method, modification high frequency eddy current (HFEC) Special Attention Service Bulletin 737–53– deviation, or alteration deviation must meet inspections for cracking of the skin in the 1294, Revision 2, dated December 9, 2015, the certification basis of the airplane, and the area around the eight fasteners securing the specifies to contact Boeing for appropriate approval must specifically refer to this AD.

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(4) AMOCs approved previously for the eddy current (HFEC) inspections for contains this proposed AD, the optional preventive modification installed in cracks around the rivets at the upper regulatory evaluation, any comments accordance with paragraph (h) of AD 2013– fastener row of the skin lap splice of the received, and other information. The 19–04, and AMOCs approved previously for fuselage, and repairing any crack found. street address for the Docket Office repairs for AD 2013–19–04, are approved as AMOCs for the corresponding provisions of Since we issued AD 2006–20–11, an (phone: 800–647–5527) is in the this AD, provided that such modification or evaluation done by the design approval ADDRESSES section. Comments will be repair included installation of the splice holder (DAH) indicated that the fuselage available in the AD docket shortly after plate as specified in Boeing Special Attention skin lap splice is subject to widespread receipt. Service Bulletin 737–53–1294, except as fatigue damage (WFD). This proposed FOR FURTHER INFORMATION CONTACT: Eric provided by paragraph (l)(5) of this AD. AD would no longer allow the detailed Schrieber, Aerospace Engineer, (5) The time-limited repair approved as inspections and would instead require Airframe Branch, ANM–120L, FAA, Los specified in FAA Letter 120S–15–140, dated repetitive external HFEC inspections for Angeles Aircraft Certification Office June 3, 2015, is approved as an AMOC to the cracking of the skin lap splices of the corresponding requirements of this AD. (ACO), 3960 Paramount Boulevard, fuselage, and repair if necessary. We are Lakewood, CA 90712–4137; phone: (m) Related Information proposing this AD to detect and correct 562–627–5348; fax: 562–627–5210; (1) For more information about this AD, fatigue cracking at certain skin lap email: [email protected]. contact Alan Pohl, Aerospace Engineer, splice locations of the fuselage, which SUPPLEMENTARY INFORMATION: Airframe Branch, ANM–120S, FAA, Seattle could result in reduced structural Aircraft Certification Office, 1601 Lind integrity and rapid decompression of Comments Invited Avenue SW., Renton, WA 98057–3356; the airplane. phone: 425–917–6450; fax: 425–917–6590; We invite you to send any written email: [email protected]. DATES: We must receive comments on relevant data, views, or arguments about (2) For service information identified in this proposed AD by June 27, 2016. this proposed AD. Send your comments this AD, contact Boeing Commercial ADDRESSES: You may send comments, to an address listed under the Airplanes, Attention: Data & Services using the procedures found in 14 CFR ADDRESSES section. Include ‘‘Docket No. Management, P.O. Box 3707, MC 2H–65, 11.43 and 11.45, by any of the following FAA–2016–6669; Directorate Identifier Seattle, WA 98124–2207; telephone 206– methods: 2015–NM–191–AD’’ at the beginning of 544–5000, extension 1; fax 206–766–5680; • Federal eRulemaking Portal: Go to your comments. We specifically invite Internet https://www.myboeingfleet.com. You may view this referenced service information http://www.regulations.gov. Follow the comments on the overall regulatory, at the FAA, Transport Airplane Directorate, instructions for submitting comments. economic, environmental, and energy 1601 Lind Avenue SW., Renton, WA. You • Fax: 202–493–2251. aspects of this proposed AD. We will may view this referenced service information • Mail: U.S. Department of consider all comments received by the at the FAA, Transport Airplane Directorate, Transportation, Docket Operations, M– closing date and may amend this 1601 Lind Avenue SW., Renton, WA. For 30, West Building Ground Floor, Room proposed AD because of those information on the availability of this W12–140, 1200 New Jersey Avenue SE., comments. material at the FAA, call 425–227–1221. Washington, DC 20590. We will post all comments we Issued in Renton, Washington, on May 5, • Hand Delivery: Deliver to Mail receive, without change, to http:// 2016. address above between 9 a.m. and 5 www.regulations.gov, including any Michael Kaszycki, p.m., Monday through Friday, except personal information you provide. We Acting Manager, Transport Airplane Federal holidays. will also post a report summarizing each Directorate, Aircraft Certification Service. For service information identified in substantive verbal contact we receive [FR Doc. 2016–11167 Filed 5–11–16; 8:45 am] this NPRM, contact Boeing Commercial about this proposed AD. Airplanes, Attention: Data & Services BILLING CODE 4910–13–P Discussion Management, 3855 Lakewood Boulevard, MC D800–0019, Long Beach, On September 22, 2006, we issued AD DEPARTMENT OF TRANSPORTATION CA 90846–0001; telephone: 206–544– 2006–20–11, Amendment 39–14781 (71 5000, extension 2; fax: 206–766–5683; FR 58485, October 4, 2006) (‘‘AD 2006– Federal Aviation Administration Internet https:// 20–11’’), for certain The Boeing www.myboeingfleet.com. You may view Company Model 757–200, –200CB, and 14 CFR Part 39 this referenced service information at –200PF series airplanes. AD 2006–20– [Docket No. FAA–2016–6669; Directorate the FAA, Transport Airplane 11 requires initial and repetitive Identifier 2015–NM–191–AD] Directorate, 1601 Lind Avenue SW., detailed or HFEC inspections for cracks Renton, WA. For information on the around the rivets at the upper fastener RIN 2120–AA64 availability of this material at the FAA, row of the skin lap splice of the fuselage, and repairing any crack found. Airworthiness Directives; The Boeing call 425–227–1221. It is also available AD 2006–20–11 resulted from reports of Company Airplanes on the Internet at http:// www.regulations.gov by searching for cracking in the fuselage skin of the AGENCY: Federal Aviation and locating Docket No. FAA–2016– crown skin panel. We issued AD 2006– Administration (FAA), DOT. 6669. 20–11 to detect and correct premature fatigue cracking at certain skin lap ACTION: Notice of proposed rulemaking Examining the AD Docket (NPRM). splice locations of the fuselage, and You may examine the AD docket on consequent rapid decompression of the SUMMARY: We propose to supersede the Internet at http:// airplane. Airworthiness Directive (AD) 2006–20– www.regulations.gov by searching for Structural fatigue damage is 11, which applies to certain The Boeing and locating Docket No. FAA–2016– progressive. It begins as minute cracks, Company Model 757–200, –200CB, and 6669; or in person at the Docket and those cracks grow under the action –200PF series airplanes. AD 2006–20– Management Facility between 9 a.m. of repeated stresses. This can happen 11 currently requires initial and and 5 p.m., Monday through Friday, because of normal operational repetitive detailed or high frequency except Federal holidays. The AD docket conditions and design attributes, or

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because of isolated situations or not fly an airplane beyond its LOV, address the identified unsafe condition. incidents such as material defects, poor unless an extended LOV is approved. Only HFEC inspections are adequate to fabrication quality, or corrosion pits, The WFD rule (75 FR 69746, address the identified unsafe condition. dings, or scratches. Fatigue damage can November 15, 2010) does not require Related Service Information Under 1 occur locally, in small areas or identifying and developing maintenance CFR Part 51 structural design details, or globally. actions if the DAHs can show that such Global fatigue damage is general actions are not necessary to prevent We reviewed Boeing Special degradation of large areas of structure WFD before the airplane reaches the Attention Service Bulletin 757–53– with similar structural details and stress LOV. Many LOVs, however, do depend 0090, Revision 1, dated November 19, levels. Multiple-site damage is global on accomplishment of future 2015. The service information describes damage that occurs in a large structural maintenance actions. As stated in the procedures for repetitive external HFEC element such as a single rivet line of a WFD rule, any maintenance actions inspections for cracking of the skin lap lap splice joining two large skin panels. necessary to reach the LOV will be splices of the fuselage. This service Global damage can also occur in mandated by airworthiness directives information is reasonably available multiple elements such as adjacent through separate rulemaking actions. because the interested parties have frames or stringers. Multiple-site- In the context of WFD, this action is access to it through their normal course damage and multiple-element-damage necessary to enable DAHs to propose of business or by the means identified cracks are typically too small initially to LOVs that allow operators the longest in the ADDRESSES section. be reliably detected with normal operational lives for their airplanes, and FAA’s Determination inspection methods. Without still ensure that WFD will not occur. intervention, these cracks will grow, This approach allows for an We are proposing this AD because we and eventually compromise the implementation strategy that provides evaluated all the relevant information structural integrity of the airplane, in a flexibility to DAHs in determining the and determined the unsafe condition condition known as WFD. As an timing of service information described previously is likely to exist or airplane ages, WFD will likely occur, development (with FAA approval), develop in other products of the same and will certainly occur if the airplane while providing operators with certainty type design. is operated long enough without any regarding the LOV applicable to their Proposed AD Requirements intervention. airplanes. We are proposing this AD to detect The FAA’s WFD final rule (75 FR and correct fatigue cracking at certain This proposed AD would require 69746, November 15, 2010) became skin lap splice locations of the fuselage, accomplishing the actions specified in effective on January 14, 2011. The WFD which could result in reduced structural the service information described rule requires certain actions to prevent integrity and rapid decompression of previously. For information on the structural failure due to WFD the airplane. procedures and compliance times, see throughout the operational life of this service information at http:// certain existing transport category Actions Since AD 2006–20–11 Was www.regulations.gov by searching for airplanes and all of these airplanes that Issued and locating Docket No. FAA–2016– will be certificated in the future. For Since issuance of AD 2006–20–11, an 6669. existing and future airplanes subject to evaluation done by the DAH indicated Costs of Compliance the WFD rule, the rule requires that that the fuselage skin lap splice is DAHs establish a limit of validity (LOV) subject to WFD. We estimate that this proposed AD of the engineering data that support the We have determined that the detailed affects 572 airplanes of U.S. registry. structural maintenance program. inspection that is allowed as an option We estimate the following costs to Operators affected by the WFD rule may in AD 2006–20–11, does not adequately comply with this proposed AD:

ESTIMATED COSTS

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

Inspections [retained actions from AD Up to 20 work-hours × $85 per hour = $0 Up to $1,700 per in- Up to $972,400 per 2006–20–11]. up to $1,700 per inspection cycle. spection cycle. inspection cycle. New proposed inspections ...... Up to 20 work-hours × $85 per hour = 0 Up to $1,700 per in- Up to $972,400 per up to $1,700 per inspection cycle. spection cycle. inspection cycle.

We have received no definitive data We are issuing this rulemaking under products identified in this rulemaking that would enable us to provide a cost the authority described in Subtitle VII, action. estimate for the on-condition repairs Part A, Subpart III, Section 44701, Regulatory Findings specified in this proposed AD. ‘‘General requirements.’’ Under that We have determined that this Authority for This Rulemaking section, Congress charges the FAA with promoting safe flight of civil aircraft in proposed AD would not have federalism Title 49 of the United States Code implications under Executive Order air commerce by prescribing regulations specifies the FAA’s authority to issue 13132. This proposed AD would not for practices, methods, and procedures rules on aviation safety. Subtitle I, have a substantial direct effect on the the Administrator finds necessary for Section 106, describes the authority of States, on the relationship between the the FAA Administrator. Subtitle VII, safety in air commerce. This regulation national Government and the States, or Aviation Programs, describes in more is within the scope of that authority on the distribution of power and detail the scope of the Agency’s because it addresses an unsafe condition responsibilities among the various authority. that is likely to exist or develop on levels of government.

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For the reasons discussed above, I subject to widespread fatigue damage. We are 0090, Revision 1, dated November 19, 2015. certify that the proposed regulation: issuing this AD to detect and correct fatigue Doing an inspection required by this (1) Is not a ‘‘significant regulatory cracking at certain skin lap splice locations paragraph terminates the inspections required by paragraph (g) of this AD. action’’ under Executive Order 12866, of the fuselage, which could result in reduced structural integrity and rapid (k) Repair for Cracking Found During (2) Is not a ‘‘significant rule’’ under decompression of the airplane. the DOT Regulatory Policies and Inspections Required by Paragraph (j) of Procedures (44 FR 11034, February 26, (f) Compliance This AD 1979), Comply with this AD within the If any cracking is found during any (3) Will not affect intrastate aviation compliance times specified, unless already inspection required by paragraph (j) of this in Alaska, and done. AD, repair before further flight using a method approved in accordance with the (4) Will not have a significant (g) Retained Initial and Repetitive procedures specified in paragraph (m) of this economic impact, positive or negative, Inspections With Terminating Action AD. on a substantial number of small entities This paragraph restates the requirements of (l) Exceptions to Service Information under the criteria of the Regulatory paragraph (f) of AD 2006–20–11, with Flexibility Act. terminating action. Do initial and repetitive (1) Where Boeing Special Attention Service detailed or high frequency eddy current Bulletin 757–53–0090, Revision 1, dated List of Subjects in 14 CFR Part 39 (HFEC) inspections for cracking around the November 19, 2015, specifies a compliance Air transportation, Aircraft, Aviation rivets at the upper fastener row of the skin time ‘‘after the Revision 1 date of this service bulletin,’’ this AD requires compliance safety, Incorporation by reference, lap splice of the fuselage by doing all the actions in accordance with the within the specified compliance time after Safety. Accomplishment Instructions of Boeing the effective date of this AD. The Proposed Amendment Special Attention Service Bulletin 757–53– (2) Although Boeing Special Attention 0090, dated June 2, 2005, except as provided Service Bulletin 757–53–0090, Revision 1, Accordingly, under the authority by paragraphs (h) and (i) of this AD. Do the dated November 19, 2015, specifies to delegated to me by the Administrator, inspections at the applicable times specified contact Boeing for repair instructions, and the FAA proposes to amend 14 CFR part in Paragraph 1.E., ‘‘Compliance,’’ of Boeing specifies that action as ‘‘RC’’ (Required for 39 as follows: Special Attention Service Bulletin 757–53– Compliance), paragraph (k) of this AD 0090, dated June 2, 2005; except where requires repair before further flight using a PART 39—AIRWORTHINESS Boeing Special Attention Service Bulletin method approved in accordance with the DIRECTIVES 757–53–0090, dated June 2, 2005, specifies a procedures specified in paragraph (m) of this compliance time ‘‘after the original release AD. ■ 1. The authority citation for part 39 date of this service bulletin,’’ this AD (m) Alternative Methods of Compliance requires compliance after November 8, 2006 continues to read as follows: (AMOCs) (the effective date of AD 2006–20–11). Authority: 49 U.S.C. 106(g), 40113, 44701. Accomplishing an inspection required by (1) The Manager, Los Angeles Aircraft paragraph (j) of this AD terminates the Certification Office (ACO), FAA, has the § 39.13 [Amended] inspections required by this paragraph. authority to approve AMOCs for this AD, if ■ 2. The FAA amends § 39.13 by requested using the procedures found in 14 (h) Retained Repair With No Changes removing Airworthiness Directive (AD) CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector 2006–20–11, Amendment 39–14781 (71 This paragraph restates the requirements of paragraph (g) of AD 2006–20–11, with no or local Flight Standards District Office, as FR 58485, October 4, 2006), and adding changes. If any crack is found during any appropriate. If sending information directly the following new AD: inspection required by paragraph (g) of this to the manager of the ACO, send it to the The Boeing Company: Docket No. FAA– AD: Before further flight, repair the crack attention of the person identified in 2016–6669; Directorate Identifier 2015– using a method approved in accordance with paragraph (n)(1) of this AD. Information may NM–191–AD. the procedures specified in paragraph (m) of be emailed to: 9-ANM-LAACO-AMOC- this AD. [email protected]. (a) Comments Due Date (2) Before using any approved AMOC, (i) Retained No Reporting Required With No The FAA must receive comments on this notify your appropriate principal inspector, Changes AD action by June 27, 2016. or lacking a principal inspector, the manager This paragraph restates the provision of the local flight standards district office/ (b) Affected ADs specified in paragraph (h) of AD 2006–20–11, certificate holding district office. This AD replaces AD 2006–20–11, with no changes. Although Boeing Special (3) An AMOC that provides an acceptable Amendment 39–14781 (71 FR 58485, October Attention Service Bulletin 757–53–0090, level of safety may be used for any repair, 4, 2006) (‘‘AD 2006–20–11’’). This AD affects dated June 2, 2005, recommends that modification, or alteration required by this AD 2006–11–11, Amendment 39–14615 (71 inspection results be reported to the AD if it is approved by the Boeing FR 30278, May 26, 2006) (‘‘AD 2006–11– manufacturer, this AD does not include that Commercial Airplanes Organization 11’’). requirement. Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles (c) Applicability (j) New Repetitive Inspections ACO, to make those findings. To be approved (c) This AD applies to The Boeing At the applicable time specified in table 1 the repair method, modification deviation, or Company Model 757–200, –200CB, and of paragraph 1.E., ‘‘Compliance,’’ of Boeing alteration deviation must meet the –200PF series airplanes, certificated in any Special Attention Service Bulletin 757–53– certification basis of the airplane and the category, as identified in Boeing Special 0090, Revision 1, dated November 19, 2015, approval must specifically refer to this AD. Attention Service Bulletin 757–53–0090, except as provided by paragraph (l)(1) of this (4) AMOCs approved for AD 2006–20–11, Revision 1, dated November 19, 2015. AD: Do an external high frequency eddy are approved as AMOCs for the current (HFEC) inspection for cracking of the corresponding provisions of paragraphs (g) (d) Subject skin lap splices of the fuselage, in accordance and (j) of this AD. Air Transport Association (ATA) of with the Accomplishment Instructions of (5) Except as required by paragraph (l)(2) America Code 53, Fuselage. Boeing Special Attention Service Bulletin of this AD: For service information that 757–53–0090, Revision 1, dated November contains steps that are labeled as Required (e) Unsafe Condition 19, 2015. Repeat the inspection thereafter at for Compliance (RC), the provisions of This AD was prompted by an evaluation the applicable times specified in table 1 of paragraphs (m)(5)(i) and (m)(5)(ii) apply. done by the design approval holder which paragraph 1.E., ‘‘Compliance,’’ of Boeing (i) The steps labeled as RC, including indicated that the fuselage skin lap splice is Special Attention Service Bulletin 757–53– substeps under an RC step and any figures

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identified in an RC step, must be done to DEPARTMENT OF TRANSPORTATION 30, West Building Ground Floor, Room comply with the AD. An AMOC is required W12–140, 1200 New Jersey Avenue SE., for any deviations to RC steps, including Federal Aviation Administration Washington, DC 20590. substeps and identified figures. • Hand Delivery: U.S. Department of (ii) Steps not labeled as RC may be 14 CFR Part 39 Transportation, Docket Operations, M– deviated from using accepted methods in [Docket No. FAA–2015–0077; Directorate 30, West Building Ground Floor, Room accordance with the operator’s maintenance Identifier 2013–NM–254–AD] W12–140, 1200 New Jersey Avenue SE., or inspection program without obtaining Washington, DC, between 9 a.m. and 5 approval of an AMOC, provided the RC steps, RIN 2120–AA64 p.m., Monday through Friday, except including substeps and identified figures, can Airworthiness Directives; ATR—GIE Federal holidays. still be done as specified, and the airplane For service information identified in can be put back in an airworthy condition. Avions de Transport Re´gional Airplanes this SNPRM, contact ATR—GIE Avions (6) The inspections specified in paragraph de Transport Re´gional, 1, Alle´e Pierre (g) of this AD are approved as an AMOC to AGENCY: Federal Aviation Nadot, 31712 Blagnac Cedex, France; paragraph (h) of AD 2006–11–11 for the Administration (FAA), DOT. telephone +33 (0) 5 62 21 62 21; fax +33 inspections of Significant Structural Items ACTION (SSI) 53–30–07 and 53–60–07 (fuselage lap : Supplemental notice of (0) 5 62 21 67 18; email splices, left and right upper fastener row) proposed rulemaking (NPRM); [email protected]; Internet listed in the May 2003 or June 2005 revision reopening of comment period. http://www.aerochain.com. You may of the Boeing 757 Maintenance Planning Data view this referenced service information SUMMARY: We are revising an earlier at the FAA, Transport Airplane (MPD) Document D622N001–9. This AMOC proposed airworthiness directive (AD) applies only to the common areas identified Directorate, 1601 Lind Avenue SW., for certain ATR—GIE Avions de Renton, WA. For information on the in paragraphs (m)(6)(i) and (m)(6)(ii) of this ´ Transport Regional Model ATR42–500 availability of this material at the FAA, AD. All provisions of AD 2006–11–11 that and Model ATR72–212A airplanes. The are not specifically referenced in the above call 425–227–1221. NPRM proposed to require measuring statements remain fully applicable and must the gap between the Type III Emergency Examining the AD Docket be complied with as specified in AD 2006– 11–11. Operators may revise their FAA- Exit doors and certain overhead stowage You may examine the AD docket on approved maintenance or inspection program compartment fittings; removing certain the Internet at http:// with these alternative inspections for fittings from the overhead stowage www.regulations.gov by searching for common areas. compartments and measuring the gap and locating Docket No. FAA–2015– (i) Common areas inspected before the between the Type III Emergency Exit 0077; or in person at the Docket effective date of this AD in accordance with doors and the overhead stowage Management Facility between 9 a.m. the Accomplishment Instructions of Boeing compartment hooks, if necessary; and and 5 p.m., Monday through Friday, Special Attention Service Bulletin 757–53– re-installing or repairing, as applicable, except Federal holidays. The AD docket 0090, dated June 2, 2005. the Type III Emergency Exit doors. The contains this proposed AD, the (ii) Common areas inspected in accordance NPRM was prompted by a report regulatory evaluation, any comments with the Accomplishment Instructions of indicating that interference occurred received, and other information. The between a Type III Emergency Exit door Boeing Special Attention Service Bulletin street address for the Docket Office and the surrounding passenger cabin 757–53–0090, Revision 1, dated November (telephone: 800–647–5527) is in the 19, 2015. furnishing during a production check. ADDRESSES section. Comments will be This action revises the NPRM by adding (n) Related Information available in the AD docket shortly after new proposed requirements for receipt. (1) For more information about this AD, modifying the overhead stowage contact Eric Schrieber, Aerospace Engineer, compartments. We are proposing this FOR FURTHER INFORMATION CONTACT: Tom Airframe Branch, ANM–120L, FAA, Los supplemental NPRM (SNPRM) to Rodriguez, Aerospace Engineer, Angeles Aircraft Certification Office (ACO), prevent interference between a Type III International Branch, ANM–116, 3960 Paramount Boulevard, Lakewood, CA Emergency Exit door and the overhead Transport Airplane Directorate, FAA, 90712–4137; phone: 562–627–5348; fax: 562– stowage compartment fitting installed 1601 Lind Avenue SW., Renton, WA 627–5210; email: [email protected]. on the rail; which could result in 98057–3356; telephone 425–227–1137; (2) For service information identified in obstructed opening of a Type III fax: 425–227–1149. this AD, contact Boeing Commercial Emergency Exit door during an SUPPLEMENTARY INFORMATION: Airplanes, Attention: Data & Services emergency evacuation. Since these Management, 3855 Lakewood Boulevard, MC Comments Invited D800–0019, Long Beach, CA 90846–0001; actions impose an additional burden We invite you to send any written telephone: 206–544–5000, extension 2; fax: over those proposed in the NPRM, we relevant data, views, or arguments about 206–766–5683; Internet https:// are reopening the comment period to www.myboeingfleet.com. You may view this allow the public the chance to comment this proposed AD. Send your comments referenced service information at the FAA, on these proposed changes. to an address listed under the Transport Airplane Directorate, 1601 Lind DATES: We must receive comments on ADDRESSES section. Include ‘‘Docket No. Avenue SW., Renton, WA. For information this SNPRM by June 27, 2016. FAA–2015–0077; Directorate Identifier on the availability of this material at the ADDRESSES: You may send comments, 2013–NM–254–AD’’ at the beginning of FAA, call 425–227–1221. using the procedures found in 14 CFR your comments. We specifically invite 11.43 and 11.45, by any of the following comments on the overall regulatory, Issued in Renton, Washington, on May 5, economic, environmental, and energy 2016. methods: • Federal eRulemaking Portal: Go to aspects of this proposed AD. We will Michael Kaszycki, http://www.regulations.gov. Follow the consider all comments received by the Acting Manager, Transport Airplane instructions for submitting comments. closing date and may amend this Directorate, Aircraft Certification Service. • Fax: 202–493–2251. proposed AD based on those comments. [FR Doc. 2016–11168 Filed 5–11–16; 8:45 am] • Mail: U.S. Department of We will post all comments we BILLING CODE 4910–13–P Transportation, Docket Operations, M– receive, without change, to http://

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www.regulations.gov, including any 2013–0280] to require a one-time check of the • ATR Service Bulletin ATR72–25– personal information you provide. We gap between the Type III Emergency Exit 1148, dated November 21, 2014, which will also post a report summarizing each door internal skin and a relevant fitting and, describes procedures for modifying the substantive verbal contact we receive depending on findings, the accomplishment overhead stowage compartments. of applicable corrective action(s). That • about this proposed AD. [EASA] AD was considered to be a temporary ATR Service Bulletin ATR72–25– 1149, dated November 21, 2014, which Discussion measure. Since that [EASA] AD was issued, ATR describes procedures for modifying the We issued a notice of proposed developed a design solution to ensure that no overhead stowage compartments. rulemaking (NPRM) to amend 14 CFR interference with surrounding structure This service information is reasonably part 39 by adding an AD that would occurs during opening of an emergency exit. available because the interested parties apply to certain ATR—GIE Avions de ATR Service Bulletins (SB) ATR42–25–0185, have access to it through their normal Transport Re´gional Model ATR42–500 SB ATR42–25–0186, SB ATR72–25–1148 and course of business or by the means SB ATR72–25–1149 were issued to provide and Model ATR72–212A airplanes. The identified in the ADDRESSES section. NPRM published in the Federal the necessary modification instructions for in-service aeroplanes. Comments Register on January 23, 2015 (80 FR For the reason described above, this 3531) (‘‘the NPRM’’). The NPRM was [EASA] AD retains the requirements of EASA We gave the public the opportunity to prompted by a report indicating that AD 2013–0280, which is superseded, and participate in developing this proposed interference occurred between a Type III requires modification of the overhead bin AD. We received no comments on the Emergency Exit door and the attachment adjacent to the Type III NPRM or on the determination of the surrounding passenger cabin furnishing emergency exit doors [The modification cost to the public. during a production check. The NPRM includes removing the hooks and fittings FAA’s Determination and Requirements proposed to require measuring the gap from the lateral rails and re-identifying the of This SNPRM between the Type III Emergency Exit overhead stowage compartments]. doors and certain overhead stowage Required actions include an additional This product has been approved by compartment fittings; removing certain measurement of the gap between the the aviation authority of another fittings from the overhead stowage internal skin and overhead stowage country, and is approved for operation compartments and measuring the gap compartment hooks of both Type III in the United States. Pursuant to our between the Type III Emergency Exit Emergency Exits, if necessary. bilateral agreement with the State of doors and the overhead stowage Corrective actions include re-installing Design Authority, we have been notified compartment hooks, if necessary; and the Type III Emergency Exit doors and of the unsafe condition described in the re-installing or repairing, as applicable, doing a repair. You may examine the MCAI and service information the Type III Emergency Exit doors. MCAI in the AD docket on the Internet referenced above. We are proposing this at http://www.regulations.gov by AD because we evaluated all pertinent Actions Since the NPRM Was Issued searching for and locating Docket No. information and determined an unsafe Since we issued the NPRM, we have FAA–2015–0077. condition exists and is likely to exist or determined that, in order to address the develop on other products of these same identified unsafe condition, additional Related Service Information Under 1 type designs. requirements are needed for modifying CFR Part 51 Certain changes described above the overhead stowage compartments Avions de Transport Re´gional Service expand the scope of the NPRM. As a (including removing the hooks and has issued the following service result, we have determined that it is fittings from the lateral rails) and re- information: necessary to reopen the comment period identifying the overhead stowage • ATR Service Bulletin ATR42 25– to provide additional opportunity for compartments with new part numbers. 0180, dated August 19, 2013, which the public to comment on this SNPRM. The European Aviation Safety Agency describes procedures for, among other Costs of Compliance (EASA), which is the Technical Agent things, removing certain fittings from for the Member States of the European the overhead stowage compartments, We estimate that this SNPRM affects Union, has issued EASA Airworthiness measuring the gap between the Type III 4 airplanes of U.S. registry. Directive 2015–0018, dated February 5, Emergency Exit doors and the overhead We also estimate that it would take 2015 (referred to after this as the stowage compartment hooks, re- about 4 work-hours per product to Mandatory Continuing Airworthiness installing the Type III Emergency Exit comply with the new basic Information, or ‘‘the MCAI’’), to correct doors, and repair. requirements of this SNPRM. The • an unsafe condition on certain ATR— ATR Service Bulletin ATR72 25– average labor rate is $85 per work-hour. GIE Avions de Transport Re´gional 1141, dated August 19, 2013, which Required parts would cost about $0 per Model ATR42–500 and Model ATR72– describes procedures for, among other product. Based on these figures, we 212A airplanes. The MCAI states: things, removing certain fittings from estimate the cost of this SNPRM on U.S. the overhead stowage compartments, operators to be $1,360, or $340, or per Interference between a Type III Emergency Exit door opening and surrounding passenger measuring the gap between the Type III product. cabin furnishing was detected during a Emergency Exit doors and the overhead In addition, we estimate that any production check. stowage compartment hooks, and re- necessary follow-on actions would take Subsequent investigation identified an installing the Type III Emergency Exit about 1 work-hour for a cost of $85 per insufficient gap between the emergency exit doors. product. We have no way of door internal skin structure and the overhead • ATR Service Bulletin ATR42–25– determining the number of aircraft that stowage compartment fitting, installed on the 0185, dated November 21, 2014, which might need these actions. rail, as a cause of the interference. describes procedures for modifying the This condition, if not detected and overhead stowage compartments. Authority for This Rulemaking corrected, could prevent an unobstructed • opening of both Type III Emergency Exit ATR Service Bulletin ATR42–25– Title 49 of the United States Code doors in case of emergency evacuation. 0186, dated November 21, 2014, which specifies the FAA’s authority to issue Prompted by this finding, EASA issued AD describes procedures for modifying the rules on aviation safety. Subtitle I, 2013–0280 [http://ad.easa.europa.eu/ad/ overhead stowage compartments. section 106, describes the authority of

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the FAA Administrator. ‘‘Subtitle VII: (a) Comments Due Date (h) Re-Installation of Type III Emergency Aviation Programs,’’ describes in more We must receive comments by June 27, Exit Doors detail the scope of the Agency’s 2016. During the measurement required by authority. paragraph (g) of this AD, if it is determined We are issuing this rulemaking under (b) Affected ADs that there is a gap equal to or greater than 6 the authority described in ‘‘Subtitle VII, None. mm (0.236 inch): Before further flight, re- Part A, Subpart III, Section 44701: install the LH and RH Type III Emergency (c) Applicability Exit Doors, in accordance with paragraph General requirements.’’ Under that This AD applies to the airplanes, 3.C.(1)(d) of the Accomplishment section, Congress charges the FAA with certificated in any category, identified in Instructions of ATR Service Bulletin ATR42– promoting safe flight of civil aircraft in paragraphs (c)(1) and (c)(2) of this AD. 25–0180, dated August 19, 2013; or ATR air commerce by prescribing regulations (1) ATR—GIE Avions de Transport Service Bulletin ATR72–25–1141, dated for practices, methods, and procedures Re´gional Model ATR42–500 airplanes, all August 19, 2013; as applicable. the Administrator finds necessary for manufacturer serial numbers (MSNs) on (i) Removal of Fitting and Measurement of safety in air commerce. This regulation which ATR Modification 6518 has been Gap Between Door Internal Skin and is within the scope of that authority embodied in production, except those Overhead Stowage Compartment Hooks because it addresses an unsafe condition airplanes on which ATR Modification 7294 has been embodied in production. During the measurement required by that is likely to exist or develop on paragraph (g) of this AD, if it is determined products identified in this rulemaking (2) ATR—GIE Avions de Transport Re´gional Model ATR72–212A airplanes on that there is a gap less than 6 mm (0.236 action. which ATR Modification 6517 has been inch): Before further flight, remove the fitting P/N S2522924620000 (LH fitting) or P/N Regulatory Findings embodied in production, except those airplanes on which ATR Modification 7294 S2522924620100 (RH fitting), and measure We determined that this proposed AD has been embodied in production. the gap between the internal skin of the LH would not have federalism implications and RH Type III Emergency Exit Doors and under Executive Order 13132. This (d) Subject the overhead stowage compartment hooks, in proposed AD would not have a Air Transport Association (ATA) of accordance with the Accomplishment America Code 25, Equipment/furnishings. Instructions of ATR Service Bulletin ATR42– substantial direct effect on the States, on 25–0180, dated August 19, 2013; or ATR72– the relationship between the national (e) Reason 25–1141, dated August 19, 2013; as Government and the States, or on the This AD was prompted by a report applicable. distribution of power and indicating that interference occurred between (1) If, during the measurement required by responsibilities among the various a Type III Emergency Exit door and the paragraph (i) of this AD, it is determined that levels of government. surrounding passenger cabin furnishing there is a gap equal to or greater than 6 mm For the reasons discussed above, I during a production check. We are issuing (0.236 inch): Before further flight, re-install the LH and RH Type III Emergency Exit certify this proposed regulation: this AD to prevent interference between a Doors, in accordance with the 1. Is not a ‘‘significant regulatory Type III Emergency Exit door and the Accomplishment Instructions of ATR Service overhead stowage compartment fitting action’’ under Executive Order 12866; Bulletin ATR42–25–0180, dated August 19, installed on the rail; which could result in 2. Is not a ‘‘significant rule’’ under the 2013; or ATR72–25–1141, dated August 19, DOT Regulatory Policies and Procedures obstructed opening of a Type III Emergency 2013; as applicable. (44 FR 11034, February 26, 1979); Exit door during an emergency evacuation. (2) If, during the measurement required by 3. Will not affect intrastate aviation in (f) Compliance paragraph (i) of this AD, it is determined that there is a gap less than 6 mm (0.236 inch): Alaska; and Comply with this AD within the 4. Will not have a significant Before further flight, repair using a method compliance times specified, unless already approved by the Manager, International economic impact, positive or negative, done. on a substantial number of small entities Branch, ANM–116, Transport Airplane under the criteria of the Regulatory (g) Measurement of Gap Between Type III Directorate, FAA; or the European Aviation Safety Agency (EASA); or ATR—GIE Avions Flexibility Act. Emergency Exit Doors and Certain Overhead Stowage Compartment Fittings de Transport Re´gional’s EASA Design Organization Approval (DOA). List of Subjects in 14 CFR Part 39 For all airplanes, except those airplanes on Air transportation, Aircraft, Aviation which ATR Modification 7152 has been (j) Modification of Overhead Stowage safety, Incorporation by reference, embodied in production and except airplanes Compartments and Re-Identification of Part Safety. having MSN 1002, 1005, 1089, 1094, 1095, Number 1097, 1098, 1099, 1100, 1101, or 1102: Within 4 months after the effective date of The Proposed Amendment Within 2 months after the effective date of this AD: Modify the overhead stowage Accordingly, under the authority this AD, measure the gap between each Type compartments, in accordance with the III Emergency Exit door, left hand (LH) and delegated to me by the Administrator, Accomplishment Instructions of the right hand (RH), and the overhead stowage applicable service information identified in the FAA proposes to amend 14 CFR part compartment fitting installed on the rail, by paragraphs (j)(1) through (j)(4) of this AD. 39 as follows: unlocking and slightly rotating the LH and (1) For airplanes identified in ATR Service RH Type III Emergency Exit doors with the Bulletin ATR42–25–0185, dated November PART 39—AIRWORTHINESS doors remaining on the lower fittings. Use a 21, 2014: ATR Service Bulletin ATR42–25– DIRECTIVES shim gauge 6 millimeters (mm) (0.236 inch) 0185, dated November 21, 2014. thick, to measure the gap between the (2) For airplanes identified in ATR Service ■ 1. The authority citation for part 39 internal skin of the doors and the relevant Bulletin ATR42–25–0186, dated November continues to read as follows: fittings, part number (P/N) S2522924620000 21, 2014: ATR Service Bulletin ATR42–25– Authority: 49 U.S.C. 106(g), 40113, 44701. (LH fitting) and P/N S2522924620100 (RH 0186, dated November 21, 2014. fitting). (3) For airplanes identified in ATR Service § 39.13 [Amended] Note 1 to paragraph (g) of this AD: Bulletin ATR72–25–1148, dated November ■ 2. The FAA amends § 39.13 by adding Illustrations may be found in the applicable 21, 2014: ATR Service Bulletin ATR72–25– the following new airworthiness ATR Illustrated Parts Catalog (IPC) 25–23–02, 1148, dated November 21, 2014. figure 87, item 90/100. (4) For airplanes identified in ATR Service directive (AD): Note 2 to paragraph (g) of this AD: It might Bulletin ATR72–25–1149, dated November Airbus: Docket No. FAA–2015–0077; be necessary to pull on the door blanket to 21, 2014: ATR Service Bulletin ATR72–25– Directorate Identifier 2013–NM–254–AD. correctly see the door internal skin. 1149, dated November 21, 2014.

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(k) Other FAA AD Provisions DEPARTMENT OF DEFENSE schedules, contact the Regulatory The following provisions also apply to this Secretariat Division at 202–501–4755. AD: GENERAL SERVICES Please cite FAR Case 2016–003. (1) Alternative Methods of Compliance ADMINISTRATION SUPPLEMENTARY INFORMATION: (AMOCs): The Manager, International I. Background Branch, ANM–116, Transport Airplane NATIONAL AERONAUTICS AND Directorate, FAA, has the authority to SPACE ADMINISTRATION DoD, GSA, and NASA are proposing approve AMOCs for this AD, if requested to revise the provision of the FAR that using the procedures found in 14 CFR 39.19. 48 CFR Parts 14 and 52 addresses the Government’s cost to award and administer a contract, for the In accordance with 14 CFR 39.19, send your [FAR Case 2016–003; Docket No. 2016– request to your principal inspector or local 0003, Sequence No. 1] purpose of evaluating bids for multiple Flight Standards District Office, as awards. The FAR provision at 52.214– appropriate. If sending information directly RIN 9000–AN21 22, Evaluation of Bids for Multiple to the International Branch, send it to ATTN: Awards, which was issued in March Federal Acquisition Regulation: Tom Rodriguez, Aerospace Engineer, 1990, reflects that $500 is the Administrative Cost To Issue and International Branch, ANM–116, Transport administrative cost to the Government Administer a Contract Airplane Directorate, FAA, 1601 Lind for issuing and administering contracts. Avenue SW., Renton, WA 98057–3356; AGENCY: Department of Defense (DoD), Based on inflation factors and escalating telephone 425–227–1137; fax: 425–227–1149. General Services Administration (GSA), annual Consumer Price Index (CPI) data Information may be emailed to: 9-ANM-116- and the National Aeronautics and Space available, an upward adjustment of $500 [email protected]. Before using Administration (NASA). in the provision to $1,000 is a realistic any approved AMOC, notify your appropriate ACTION: Proposed rule. reflection of the actual cost to the principal inspector, or lacking a principal Government. We used the CPI calculator inspector, the manager of the local flight SUMMARY: DoD, GSA, and NASA are at the following web address, http:// standards district office/certificate holding proposing to amend the Federal data.bls.gov/cgi-bin/cpicalc.pl, to district office. The AMOC approval letter Acquisition Regulation (FAR) to revise calculate the upward adjustment. We must specifically reference this AD. the estimated administrative cost to plugged in the base line year 1990 and (2) Contacting the Manufacturer: For any award and administer a contract, for the $500 and it came up with $907.00, and requirement in this AD to obtain corrective purpose of evaluating bids for multiple we rounded up to $1,000. This cost will actions from a manufacturer, the action must awards. be reviewed periodically and updated as be accomplished using a method approved DATES: Interested parties should submit deemed appropriate. by the Manager, International Branch, ANM– written comments to the Regulatory II. Discussion and Analysis 116, Transport Airplane Directorate, FAA; or Secretariat Division at one of the EASA; or ATR—GIE Avions de Transport addresses shown below on or before Amendments to FAR subparts 14.2 Re´gional’s EASA DOA. If approved by the July 11, 2016 to be considered in the and 52.2 are proposed by this DOA, the approval must include the DOA- formation of the final rule. rulemaking. A monetary adjustment is authorized signature. proposed for FAR 14.201–8, Price ADDRESSES: Submit comments in (l) Related Information Related Factors, and clause 52.214–22, response to FAR case 2016–003 by any Evaluation of Bids for Multiple Awards. (1) Refer to Mandatory Continuing of the following methods: The adjustment from $500 to $1,000 is • Regulations.gov: http:// Airworthiness Information (MCAI) EASA to reflect a realistic estimate of the cost www.regulations.gov. Submit comments Airworthiness Directive 2015–0018, dated to the Government to issue and via the Federal eRulemaking portal by February 5, 2015, for related information. administer a contract. This MCAI may be found in the AD docket searching for ‘‘FAR Case 2016–003’’. on the Internet at http://www.regulations.gov Select the link ‘‘Comment Now’’ that III. Executive Orders 12866 and 13563 by searching for and locating Docket No. corresponds with ‘‘FAR Case 2016– Executive Orders (E.O.s) 12866 and FAA–2015–0077. 003.’’ Follow the instructions provided 13563 direct agencies to assess all costs (2) For service information identified in on the screen. Please include your and benefits of available regulatory this AD, contact ATR—GIE Avions de name, company name (if any), and alternatives and, if regulation is Transport Re´gional, 1, Alle´e Pierre Nadot, ‘‘FAR Case 2016–003’’ on your attached necessary, to select regulatory 31712 Blagnac Cedex, France; telephone +33 document. approaches that maximize net benefits • (0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18; Mail: General Services (including potential economic, email [email protected]; Administration, Regulatory Secretariat environmental, public health and safety Internet http://www.aerochain.com. You may Division (MVCB), ATTN: Ms. Flowers, effects, distributive impacts, and view this referenced service information at 1800 F Street NW., 2nd Floor, equity). E.O. 13563 emphasizes the the FAA, Transport Airplane Directorate, Washington, DC 20405. importance of quantifying both costs 1601 Lind Avenue SW., Renton, WA. For Instructions: Please submit comments and benefits, of reducing costs, of information on the availability of this only and cite FAR Case 2016–003, in all harmonizing rules, and of promoting material at the FAA, call 425–227–1221. correspondence related to this case. All flexibility. This is not a significant Issued in Renton, Washington, on May 4, comments received will be posted regulatory action and, therefore, was not 2016. without change to http:// subject to review under Section 6(b) of Michael Kaszycki, www.regulations.gov, including any E.O. 12866, Regulatory Planning and personal and/or business confidential Review, dated September 30, 1993. This Acting Manager, Transport Airplane information provided. Directorate, Aircraft Certification Service. proposed rule is not a major rule under FOR FURTHER INFORMATION CONTACT: Mr. [FR Doc. 2016–11096 Filed 5–11–16; 8:45 am] 5 U.S.C. 804. Michael O. Jackson, Procurement BILLING CODE 4910–13–P Analyst, at 202–208–4949 for V. Regulatory Flexibility Act clarification of content. For information DoD, GSA, and NASA do not expect pertaining to status or publication this proposed rule to have a significant

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economic impact on a substantial List of Subjects in 48 CFR Parts 14 and DEPARTMENT OF COMMERCE number of small entities within the 52 meaning of the Regulatory Flexibility National Oceanic and Atmospheric Act, 5 U.S.C. 601, et seq. However, an Government procurement. Administration Initial Regulatory Flexibility Analysis William Clark (IRFA) has been performed. The IRFA is 50 CFR Parts 223 and 224 Director, Office of Government-wide summarized as follows: Acquisition Policy, Office of Acquisition [Docket No. 160413329–6329–01] FAR 14.201–8 and 52.214–22, Evaluation Policy, Office of Government-wide Policy. RIN 0648–XE571 of Bids for Multiple Awards, reflect that $500 Therefore, DoD, GSA, and NASA are is the administrative cost to the Government Endangered and Threatened Wildlife; for issuing and administering contracts. The proposing to amend 48 CFR parts 14 90-Day Finding on a Petition To List rule is necessary to reestablish a more and 52, as set forth below: realistic estimate of the cost to award and the Taiwanese Humpback Dolphin as administer a contract, for the purpose of ■ 1. The authority citation for 48 CFR Threatened or Endangered Under the evaluating bids for multiple awards. The parts 14 and 52 continues to read as Endangered Species Act current cost to award and administer a follows: contract has not changed since 1990. AGENCY: National Marine Fisheries The objective of this rule is to revise FAR Authority: 40 U.S.C. 121(c); 10 U.S.C. Service (NMFS), National Oceanic and 14.201–8 and 52.214–22, Evaluation of Bids chapter 137; and 51 U.S.C. 20113. Atmospheric Administration (NOAA), for Multiple Awards, to include an inflation Department of Commerce. adjustment based on Consumer Price Index PART 14—SEALED BIDDING ACTION: 90-day petition finding, request (CPI), http://data.bls.gov/cgi-bin/ for information. cpicalc.pldata, since 1990. The adjustment ■ 2. Amend section 14.201–8 by will change the estimated cost to award and revising the introductory text and SUMMARY: We, NMFS, announce a 90- administer a contract from $500 to $1,000. removing from paragraph (c) the term day finding on a petition to list the According to the Federal Procurement Data ‘‘$500’’ and adding ‘‘$1,000’’ in its Taiwanese humpback dolphin (Sousa System, in Fiscal Year 2015, the Federal place. chinensis taiwanensis) range-wide as Government made approximately 2,019 definitive contract awards to small The revision reads as follows. threatened or endangered under the businesses using sealed bidding procedures Endangered Species Act (ESA). We find and 103 indefinite-delivery contract awards 14.201–8 Price related factors. that the petition and information in our files present substantial scientific or to small businesses using sealed bidding The factors set forth in paragraphs (a) procedures, 12 of which were multiple commercial information indicating that awards. through (e) of this section may be the petitioned action may be warranted DoD, GSA, and NASA do not expect this applicable in evaluation of bids for for the Taiwanese humpback dolphin. rule to have a significant economic impact on award and shall be included in the We will conduct a status review of the a substantial number of small entities within solicitation when applicable (see species to determine if the petitioned the meaning of the Regulatory Flexibility Act, 14.201–5(c)): action is warranted. To ensure that the 5 U.S.C. 601, et seq., because the proposed rule pertains to Government administrative * * * * * status review is comprehensive, we are expenses only. soliciting scientific and commercial There will be no burden on small PART 52—SOLICITATION PROVISIONS information pertaining to the species businesses because this rule change does not AND CONTRACT CLAUSES from any interested party. place any new requirement on small entities. DATES: Information and comments on ■ 3. Amend section 52.214–22 by the subject action must be received by The Regulatory Secretariat Division revising the date of the provision and July 11, 2016. has submitted a copy of the IRFA to the removing from the paragraph the term Chief Counsel for Advocacy of the Small ADDRESSES: You may submit comments, ‘‘$500’’ and adding ‘‘$1,000’’ in its information, or data on this document, Business Administration. A copy of the place. IRFA may be obtained from the identified by the code NOAA–NMFS– Regulatory Secretariat Division. DoD, The revision reads as follows: 2016–0041, by either of the following GSA, and NASA invite comments from methods: 52.214–22 Evaluation of Bids for Multiple • Electronic Submissions: Submit all small business concerns and other Awards. interested parties on the expected electronic public comments via the impact of this rule on small entities. * * * * * Federal eRulemaking Portal. Go to www.regulations.gov/ DoD, GSA, and NASA will also Evaluation of Bids for Multiple Awards #!docketDetail;D=NOAA-NMFS-2016- consider comments from small entities (Date) 0041. Click the ‘‘Comment Now’’ icon, concerning the existing regulations in * * * * * complete the required fields, and enter subparts affected by the rule consistent [FR Doc. 2016–11177 Filed 5–11–16; 8:45 am] or attach your comments. with 5 U.S.C. 610. Interested parties • BILLING CODE 6820–EP–P Mail: Submit written comments to must submit such comments separately Chelsey Young, NMFS Office of and should cite 5 U.S.C. 610 (FAR Case Protected Resources (F/PR3), 1315 East 2016–003), in correspondence. West Highway, Silver Spring, MD VI. Paperwork Reduction Act 20910, USA. Instructions: Comments sent by any This proposed rule does not contain other method, to any other address or any information collection requirements individual, or received after the end of that require the approval of the Office of the comment period, may not be Management and Budget under the considered by NMFS. All comments Paperwork Reduction Act (44 U.S.C. received are a part of the public record chapter 35). and will generally be posted for public

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viewing on www.regulations.gov it is found that substantial scientific or must consider whether the petition: (1) without change. All personal identifying commercial information in a petition Clearly indicates the administrative information (e.g., name, address, etc.), indicates the petitioned action may be measure recommended and gives the confidential business information, or warranted (a ‘‘positive 90-day finding’’), scientific and any common name of the otherwise sensitive information we are required to promptly commence species involved; (2) contains detailed submitted voluntarily by the sender will a review of the status of the species narrative justification for the be publicly accessible. NMFS will concerned, during which we will recommended measure, describing, accept anonymous comments (enter conduct a comprehensive review of the based on available information, past and ‘‘N/A’’ in the required fields if you wish best available scientific and commercial present numbers and distribution of the to remain anonymous). information. In such cases, we conclude species involved and any threats faced Copies of the petition and related the review with a finding as to whether, by the species; (3) provides information materials are available on our Web site in fact, the petitioned action is regarding the status of the species over at http://www.fisheries.noaa.gov/pr/ warranted within 12 months of receipt all or a significant portion of its range; species/mammals/dolphins/indo- of the petition. Because the finding at and (4) is accompanied by appropriate pacific-humpback-dolphin.html. the 12-month stage is based on a more supporting documentation in the form FOR FURTHER INFORMATION CONTACT: thorough review of the available of bibliographic references, reprints of Chelsey Young, Office of Protected information, as compared to the narrow pertinent publications, copies of reports Resources, 301–427–8403. scope of review at the 90-day stage, a or letters from authorities, and maps (50 ‘‘may be warranted’’ finding does not CFR 424.14(b)(2)). SUPPLEMENTARY INFORMATION: prejudge the outcome of the status At the 90-day finding stage, we Background review. evaluate the petitioners’ request based Under the ESA, a listing upon the information in the petition On March 9, 2016, we received a determination may address a species, including its references and the petition from the Animal Welfare which is defined to also include information readily available in our Institute, Center for Biological Diversity subspecies and, for any vertebrate files. We do not conduct additional and WildEarth Guardians to list the species, any DPS that interbreeds when research, and we do not solicit Taiwanese humpback dolphin (S. mature (16 U.S.C. 1532(16)). A joint information from parties outside the chinensis taiwanensis) as threatened or NMFS–U.S. Fish and Wildlife Service agency to help us in evaluating the endangered under the ESA throughout (USFWS) (jointly, ‘‘the Services’’) policy petition. We will accept the petitioners’ its range. This population of humpback clarifies the agencies’ interpretation of sources and characterizations of the dolphin was previously considered for the phrase ‘‘distinct population information presented if they appear to ESA listing as the Eastern Taiwan Strait segment’’ for the purposes of listing, be based on accepted scientific distinct population segment (DPS) of the delisting, and reclassifying a species principles, unless we have specific Indo-Pacific humpback dolphin (Sousa under the ESA (61 FR 4722; February 7, information in our files that indicates chinensis); however, we determined that 1996). A species, subspecies, or DPS is the petition’s information is incorrect, the population was not eligible for ‘‘endangered’’ if it is in danger of unreliable, obsolete, or otherwise listing as a DPS in our 12-month finding extinction throughout all or a significant irrelevant to the requested action. (79 FR 74954; December 16, 2014) portion of its range, and ‘‘threatened’’ if Information that is susceptible to more because it did not meet all the necessary it is likely to become endangered within than one interpretation or that is criteria under the DPS Policy (61 FR the foreseeable future throughout all or contradicted by other available 4722; February 7, 1996). Specifically, a significant portion of its range (ESA information will not be dismissed at the we determined that while the Eastern sections 3(6) and 3(20), respectively, 16 90-day finding stage, so long as it is Taiwan Strait population was U.S.C. 1532(6) and (20)). Pursuant to the reliable and a reasonable person would ‘‘discrete,’’ the population did not ESA and our implementing regulations, conclude it supports the petitioners’ qualify as ‘‘significant.’’ The petition we determine whether a species is assertions. In other words, conclusive asserts that new scientific and threatened or endangered based on any information indicating the species may taxonomic information demonstrates of the following five section 4(a)(1) meet the ESA’s requirements for listing that the Taiwanese humpback dolphin factors: The present or threatened is not required to make a positive 90- is actually a subspecies, and states that destruction, modification, or day finding. We will not conclude that NMFS must reconsider the subspecies curtailment of its habitat or range; a lack of specific information alone for ESA listing. Copies of the petition overutilization for commercial, negates a positive 90-day finding if a are available upon request (see recreational, scientific, or educational reasonable person would conclude that ADDRESSES). purposes; disease or predation; the the unknown information itself suggests ESA Statutory, Regulatory, and Policy inadequacy of existing regulatory an extinction risk of concern for the Provisions and Evaluation Framework mechanisms; and any other natural or species at issue. manmade factors affecting the species’ To make a 90-day finding on a Section 4(b)(3)(A) of the ESA of 1973, continued existence (16 U.S.C. petition to list a species, we evaluate as amended (16 U.S.C. 1531 et seq.), 1533(a)(1), 50 CFR 424.11(c)). whether the petition presents requires, to the maximum extent ESA implementing regulations issued substantial scientific or commercial practicable, that within 90 days of jointly by NMFS and USFWS (50 CFR information indicating the subject receipt of a petition to list a species as 424.14(b)) define ‘‘substantial species may be either threatened or threatened or endangered, the Secretary information’’ in the context of reviewing endangered, as defined by the ESA. of Commerce make a finding on whether a petition to list, delist, or reclassify a First, we evaluate whether the that petition presents substantial species as the amount of information information presented in the petition, scientific or commercial information that would lead a reasonable person to along with the information readily indicating that the petitioned action believe that the measure proposed in the available in our files, indicates that the may be warranted, and to promptly petition may be warranted. In evaluating petitioned entity constitutes a ‘‘species’’ publish such finding in the Federal whether substantial information is eligible for listing under the ESA. Next, Register (16 U.S.C. 1533(b)(3)(A)). When contained in a petition, the Secretary we evaluate whether the information

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indicates that the species faces an criteria used to evaluate species, and Commission (IWC) Scientific Committee extinction risk that is cause for concern; treatment of uncertainty are also not recognize only two species, Sousa this may be indicated in information necessarily the same. Thus, when a chinensis in the Indo-Pacific, and Sousa expressly discussing the species’ status petition cites such classifications, we teuzii in the eastern Atlantic. Most and trends, or in information describing will evaluate the source of information recently, Wang et al. (2015) revised the impacts and threats to the species. We that the classification is based upon in taxonomy of Sousa chinensis and evaluate any information on specific light of the standards on extinction risk concluded that the Taiwanese demographic factors pertinent to and impacts or threats discussed above. humpback dolphin (S. chinensis evaluating extinction risk for the species Species Description and Taxonomy taiwanensis) is a valid subspecies. (e.g., population abundance and trends, Specifically, Wang et al. (2015) productivity, spatial structure, age The petitioned population of dolphin expanded upon a previous study (Wang structure, sex ratio, diversity, current (Sousa chinensis taiwanensis) is thought et al., 2008) regarding the pigmentation and historical range, habitat integrity or to be a subspecies of the Indo-Pacific differences between the Taiwanese fragmentation), and the potential humpback dolphin, Sousa chinensis. humpback dolphin and Indo-Pacific contribution of identified demographic The Indo-Pacific humpback dolphin is a humpback dolphin populations risks to extinction risk for the species. broadly distributed species within the inhabiting the Jiulong River and Pearl We then evaluate the potential links genus Sousa, family Delphinidae, and River estuaries from Hong Kong and between these demographic risks and order Cetacea. It is easy to distinguish Fujian in China. In the 2008 study, the causative impacts and threats from other dolphin species in its range, Wang et al. showed that the identified in section 4(a)(1). as it is characterized by a robust body, pigmentation of the Taiwanese Information presented on impacts or long distinct beak, short dorsal fin atop population is significantly different threats should be specific to the species a wide dorsal hump, and round-tipped from that of other populations within and should reasonably suggest that one broad flippers and flukes (Jefferson and the taxon (Wang et al., 2008); however, or more of these factors may be Karczmarski, 2001). The Taiwanese the study did not examine the degree of operative threats that act or have acted population also has a short dorsal fin differentiation for purposes of on the species to the point that it may with a wide base. However, the base of determining whether subspecies warrant protection under the ESA. the fin measures 5–10 percent of the recognition was warranted. Thus, to Broad statements about generalized body length, and slopes gradually into remedy this oversight, Wang et al. threats to the species, or identification the surface of the body; this differs from (2015) examined the taxonomy of the individuals in the western portion of the of factors that could negatively impact Indo-Pacific humpback dolphin by range, which have a larger hump that a species, do not constitute substantial comparing spotting densities on the comprises ca. 30 percent of body width information indicating that listing may bodies and dorsal fins of these adjacent and forms the base of an even smaller be warranted. We look for information populations and performing a dorsal fin. indicating that not only is the particular discriminant analysis. The study species exposed to a factor, but that the In general, the Indo-Pacific humpback dolphin is medium-sized, with lengths determined that the differentiation in species may be responding in a negative pigmentation patterns revealed nearly fashion; then we assess the potential up to 2.8 m, and weighs approximately 250–280 kg (Ross et al., 1994). They non-overlapping distributions between significance of that negative response. the dolphins from Taiwanese waters Many petitions identify risk form social groups of about 10 animals, and those from the Jiulong River and classifications made by but groups of up to 30 animals have Pearl River estuaries of mainland China nongovernmental organizations, such as been documented (Jefferson et al., (i.e., the nearest known populations). the International Union on the 1993). Conservation of Nature (IUCN), the The petition identifies the Taiwanese The study stated that the Taiwanese American Fisheries Society, or humpback dolphin (Sousa chinensis dolphins were clearly diagnosable from NatureServe, as evidence of extinction taiwanensis) as eligible for listing under those of mainland China under the most risk for a species. Risk classifications by the ESA as a ‘‘subspecies’’ of the Indo- commonly accepted 75 percent rule for other organizations or made under other Pacific humpback dolphin (Sousa subspecies delimitation, with 94 percent Federal or state statutes may be chinensis). The taxonomy of the genus of one group being separable from 99 informative, but such classification Sousa is unresolved and has historically percent of the other. Based on this alone may not provide the rationale for been based on morphology, but genetic information, as well as additional a positive 90-day finding under the analyses have recently been used. evidence of geographical isolation and ESA. For example, as explained by Current taxonomic hypotheses identify behavioral differences, the authors NatureServe, their assessments of a Sousa chinensis as one of two (Jefferson concluded that the Taiwanese species’ conservation status do ‘‘not et al., 2001), three (Rice, 1998), or four humpback dolphin qualifies as a constitute a recommendation by (Mendez et al., 2013) species within the subspecies, and revised the taxonomy of NatureServe for listing under the U.S. genus. Each species is associated with a Sousa chinensis to include two Endangered Species Act’’ because unique geographic range, though the subspecies: The Taiwanese humpback NatureServe assessments ‘‘have species’ defined ranges vary depending dolphin (S. chinensis taiwanensis) and different criteria, evidence on how many species are recognized. the Chinese humpback dolphin (S. requirements, purposes and taxonomic Rice (1998) recognizes Sousa teuzii in chinensis chinensis). As a result of this coverage than government lists of the eastern Atlantic, Sousa plumbea in new information, the Taxonomy endangered and threatened species, and the western Indo-Pacific, and Sousa Committee of the Society for Marine therefore these two types of lists should chinensis in the eastern Indo-Pacific. Mammalogy officially revised its list of not be expected to coincide’’ (http:// Mendez et al. (2013) recently identified marine mammal taxonomy to include www.natureserve.org/prodServices/pdf/ an as-yet unnamed potential new the Taiwanese humpback dolphin as a NatureServeStatusAssessmentsListing- species in waters off of northern subspecies. Dec%202008.pdf). Additionally, species Australia. Currently, the International While pigmentation of the Taiwanese classifications under IUCN and the ESA Union for Conservation of Nature population is significantly different are not equivalent; data standards, (IUCN) and International Whaling from other populations within the taxon

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(Wang et al., 2008; Wang et al., 2015), range of the population extended farther peak calving time may vary whether the pattern is adaptive or has than its current range (Dungan et al., geographically (Jefferson et al., 2012). genetic underpinnings is still uncertain. 2011). Age at sexual maturity is late, estimated In other cetacean species, differences in The Taiwanese humpback dolphin is between 12 and 14 years. pigmentation have been hypothesized to thought to be geographically isolated Analysis of Petition and Information relate to several adaptive responses, from mainland Chinese populations, Readily Available in NMFS Files allowing individuals to hide from with water depth being the primary predators, communicate with factor dictating their separation. The The petition contains information on conspecifics (promoting group Taiwan Strait is 140–200 km wide, and the Taiwanese humpback dolphin, cohesion), and disorient and corral prey consists of large expanses of water 50– including its taxonomy, description, (Caro et al., 2011). However, the 70 m deep (the Wuchi and Kuanyin geographic distribution, habitat, differences in Taiwanese humpback depressions). Despite extensive surveys, population status and trends, and dolphin pigmentation may be a result of Taiwanese humpback dolphins have factors contributing to the species’ a genetic bottleneck from the small size never been observed in water deeper decline. According to the petition, all of this population (less than 100 than 25–30 meters, and thus deep water five causal factors in section 4(a)(1) of individuals) and it’s possible that the is thought to be the specific barrier the ESA are adversely affecting the Taiwanese humpback dolphin limiting exchange with Chinese continued existence of the Taiwanese represents a single social and/or family mainland populations (Jefferson and humpback dolphin: (A) The present or group. Such small populations are more Karczmarski, 2001). The species as a threatened destruction, modification, or heavily influenced by genetic drift than whole experiences limited mobility and curtailment of its habitat or range; (B) large populations (Frankham, 1996). its restriction to shallow, near-shore overutilization for commercial, However, Wang et al. (2015) concluded estuarine habitats is a significant barrier recreational, scientific, or educational that the differences between the to movement (Karczmarski et al., 1997; purposes; (C) disease or predation; (D) Taiwanese dolphins and their nearest Hung and Jefferson, 2004). inadequacy of existing regulatory mechanisms; and (E) other natural or neighbors are not clinal, but are Life History diagnosably different; the characters manmade factors. examined are not those that may be Little is known about the life history In the following sections, we environmentally induced, but instead and reproduction of the Indo-Pacific summarize and evaluate the information are likely a reflection of genetic and humpback dolphin as a species, let presented in the petition and in our files developmental differences. Thus, based alone the Taiwanese humpback dolphin on the status of S. chinensis taiwanensis on the information presented in the as a subspecies. In some cases, and the ESA section 4(a)(1) factors that petition, which provides evidence that comparison of the Taiwanese humpback may be affecting this species’ risk of the Taiwanese humpback dolphin is dolphin with other populations may be global extinction. Based on this indeed a subspecies (i.e., a listable appropriate, but one needs to be evaluation, we determine whether a entity under the ESA), we will proceed cautious about making these reasonable person would conclude that with our evaluation of the information comparisons, as environmental factors an endangered or threatened listing may in the petition to determine whether S. such as food availability and habitat be warranted for the species. status may affect important rates of chinensis taiwanensis (referred Status and Population Trends henceforth as the Taiwanese humpback reproduction and generation time in dolphin) may be warranted for listing different populations. A recent analysis There have been two formal estimates throughout all or a significant portion of of life history patterns for individuals in of abundance for the Taiwanese its range under the ESA. the Pearl River Estuary (PRE) population humpback dolphin. The first is based on of mainland China may offer an surveys conducted between 2002 and Range, Distribution and Movement appropriate proxy for understanding life 2004 using line transects to track and The Taiwanese humpback dolphin history of the Taiwanese humpback count animals, which resulted in an has an extremely small, restricted range, dolphin population. Life history traits of estimated population size of 99 and is distributed throughout only 512 the PRE population are similar to those individuals (coefficient of variation (CV) square km of coastal waters off western of the South African population, = 52 percent, 95 percent confidence Taiwan, from estuarine waters of the suggesting that some general interval = 37–266) (Wang et al., 2007a). Houlong and Jhonggang rivers in the assumptions of productivity can be However, the 2007 international north, to waters of Waishanding Jhou to gathered, even on the genus-level workshop on the conservation and the South (about 170 km linear (Jefferson and Karczmarski, 2001; research needs of the Taiwanese distance), with the main concentration Jefferson et al., 2012). Maximum humpback dolphin population of the population between the Tongsaio longevity for the PRE and South African suggested that the true number of River estuary and Taisi, which populations are 38 and 40 years, individuals may actually be lower than encompasses the estuaries of the Dadu respectively; thus, it can be assumed this estimate (Wang et al., 2007b). A re- and Jhushuei rivers, the two largest river that the Taiwanese humpback dolphin analysis of population abundance systems in western Taiwan (Wang et al., experiences a similar life expectancy. In conducted on data collected between 2007b). Overall, confirmed present general, it is assumed that the 2007 and 2010 used mark-recapture habitat constitutes a narrow region population experiences long calving methods of photo identification, along the coast, which is affected by intervals, between 3 and 5 years permitting higher-precision high human population density and (Jefferson et al., 2012), with gestation measurements. Yearly population extensive industrial development (Ross lasting approximately 10–12 months. It estimates from this study ranged from et al., 2010). Rarely, individuals have has been suggested that weaning may 54 to 74 individuals (CV varied from 4 been sighted and strandings have take up to 2 years, and strong female- percent to 13 percent); these estimates occurred in near-shore habitat to the calf association may last 3–4 years were 25 percent to 45 percent lower north and south of its current confirmed (Karczmarski et al., 1997; Karczmarski, than those from 2002–2004 (Wang et al., habitat; some of these incidents are 1999). Peak calving activity most likely 2012). Jefferson (2000) estimated that viewed as evidence that the historical occurs in the warmer months, but exact mature individuals comprise 60 percent

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of the population. Based on this and their impact on the extinction risk that these dolphins are exposed to toxic proportion, and the largest estimate of of the Taiwanese humpback dolphin. PCBs and are likely negatively affected population size from the most recent The remaining factors discussed in the through ingestion of contaminated prey. study (74 individuals), the Taiwanese petition will be thoroughly evaluated in The Taiwanese humpback dolphin’s humpback dolphin is most likely a comprehensive status review of the exposure to land-based pollution and comprised of less than 45 mature species. other threats is relatively high all along individuals. Destruction, Modification, or the central western coast of Taiwan, Given the extremely small and because these dolphins are thought to isolated nature of the population, even Curtailment of the Species’ Habitat or Range inhabit only a narrow strip of coastal a small number of mortalities could habitat. Further, these dolphins have potentially have significant negative The Taiwanese humpback dolphin not been observed in waters deeper than population-level effects. For the habitat best compares with that of 25–30 m and are typically sighted in Taiwanese humpback dolphin, Wang et populations located off the coast of waters 15 m deep and within 3 km from al. (2012) measured survivorship for the mainland China. Taiwanese humpback shore (Reeves et al., 2008). Given the population, which was used to dolphins are thought to be restricted to restricted coastal range of the Taiwanese determine a mortality rate of 1.5 percent water <30 m deep, and most observed humpback dolphin and the extensive ± ( 0.022) (Wang et al., 2012; Arau´ jo et sightings have occurred in estuarine industrial and agricultural development al., 2014). Carrying capacity for the habitat with significant freshwater input in the region, food web contamination is Taiwanese humpback dolphin has been (Wang et al., 2007a). The input of likely, with sub-lethal and/or estimated at 250 individuals (a freshwater to S. chinensis taiwanensis cumulative toxic effects having the conservative estimate, higher than the habitat is thought to be important in potential to adversely impact small highest point estimate of abundance sustaining estuarine productivity, and populations (Sheehy, 2010). By from Wang (Wang et al., 2012)), as thus supporting the availability of prey measuring PCB concentrations of known extrapolated from the mean density for the dolphin (Jefferson, 2000). Across prey species, Riehl et al. (2011) estimate for the population (Arau´ jo et the Taiwanese humpback dolphin constructed a bioaccumulation model to al., 2014); this estimate suggests that the habitat, bottom substrate consists of soft assess the risk PCBs may be posing to population abundance has been reduced sloping muddy sediment with elevated the Taiwanese humpback dolphins. from historical levels. Additionally, a nutrient inputs primarily influenced by Their results indicated that the recent population viability analysis river deposition (Sheehy, 2010). These Taiwanese humpback dolphins are at nutrient inputs support high primary (PVA) suggests that the population is risk of immunotoxic effects of PCBs over production, which fuels upper trophic declining due to the synergistic effects their lifetime (Riehl et al., 2011). In levels contributing to the dolphin’s of habitat degradation and detrimental addition, surveys of 97 Taiwanese source of food. fishing interactions (Arau´ jo et al., 2014). humpback dolphins conducted from Arau´ jo et al., (2014) modeled The petition states that the Taiwanese humpback dolphin is threatened by 2006 to 2010 showed that 73 percent population trajectory over 100 years had at least one type of skin lesion and using demographic factors combined habitat destruction and modification and lists multiple causes, including that 49 percent of the surveyed dolphins with different levels of mortality were diseased (Yang et al., 2011). In attributed to bycatch, and loss of reduction of freshwater outflows to estuaries, seabed reclamation, coastal another recent study documenting skin carrying capacity due to habitat loss/ conditions of the Taiwanese humpback degradation. The model predicted a development, and pollution (including dolphin, 37 percent of individuals high probability of ongoing population chemical, biological, and noise showed evidence of fungal disease, decline under all scenarios. Ultimately, pollution). Information in our files various lesions, ulcers, and nodules. strong evidence suggests that the indicates that much of the preferred The authors suggest that the high population is small, and rates of decline habitat of the Taiwanese humpback prevalence of compromised skin are high, unsustainable, and potentially dolphin has been altered or may become condition may be linked to high levels even underestimated. Further, it is clear altered. The near-shore marine and of environmental contamination (Yang that loss of only a single individual estuarine environment in Taiwan is et al., 2013). These data suggest the within the population per year would intensively used by humans for fishing, dolphins may have weakened immune substantially reduce population growth sand extraction, land reclamation, rate (Dungan et al., 2011). transportation, and recreation, and is a systems and are consequently more recipient of massive quantities of susceptible to disease. Overall, evidence Analysis of ESA Section 4(a)(1) Factors effluent and runoff (Wang et al., 2007b). suggests that widespread habitat While the petition presents However, we do not have sufficient contamination may be leading to the information on each of the ESA section information to evaluate what effects bioaccumulation of toxins within 4(a)(1) factors, we find that the many of the activities discussed in the Taiwanese humpback dolphin information presented, including petition (e.g., reduced freshwater flows, individuals; these toxins are known to information within our files, regarding seabed reclamation) are having on the compromise marine mammal habitat destruction and overutilization species’ status. For example, while reproduction and immune response, of the species as a result of fisheries several of the rivers in western Taiwan and may be negatively impacting the interactions is substantial enough to have already been dammed or diverted health and viability of the population. make a determination that a reasonable for agricultural, municipal, or other Overall, while we have insufficient person would conclude that this species purposes (Ross et al., 2010), there are no information to evaluate some of the may warrant listing as endangered or data or information in the petition or claims in the petition, we do have threatened based on these two factors our files to indicate how reduced water sufficient information to indicate that alone. As such, we focus our discussion flows to the estuaries are specifically pollution is likely having a negative below on the evidence of habitat impacting the Taiwanese humpback impact on the status of the Taiwanese destruction and overutilization of the dolphins or their prey. humpback dolphin. Thus, we conclude species, and present our evaluation of In terms of pollution, we do have that the information in the petition and the information regarding these factors some information in our files indicating in our files presents substantial

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information that the Taiwanese habitat, corresponding to 32 vessels per impacts from habitat destruction and humpback dolphin may warrant listing km of coastline (Slooten et al., 2013). A overutilization, in and of themselves, as threatened or endangered because of recent progress report by Wang (2013) may be threats impacting the Taiwanese threats to its habitat. reports survey data from 2012 that humpback dolphin to such a degree that documents individuals observed to have raises concern that this species may be Overutilization for Commercial, new injuries since last surveyed. in danger of extinction throughout all or Recreational, Scientific, or Educational Further, in an analysis of stranded a significant portion of its range, or Purposes individuals in the waters off Hong Kong, likely to become so in the foreseeable Information from the petition and in where coastal fishing activity is future. Thus, when we consider the our files suggests that the primary threat comparable to that off the west coast of Taiwanese humpback dolphin across its to the Taiwanese humpback dolphin is Taiwan, the most commonly diagnosed restricted range, based on the available overutilization as a result of commercial causes of death were entanglement in information in the petition and in our fisheries interactions and bycatch- fishing nets and vessel collision files, its status is likely in decline, it related mortality. Bycatch poses a (Jefferson et al., 2006). continues to face numerous impacts to significant threat to small cetaceans in In addition to direct mortality as a its habitat as well as pressure from general, where entanglement in fishing result of entanglement in fisheries gear, fisheries interactions, and it has gear results in widespread injury and indirect effects of fishing activities may significant biological vulnerabilities and mortality (Read et al., 2006). The two also be negatively impacting the demographic risks (i.e., extremely low fishing gear types most hazardous to Taiwanese humpback dolphin. Indirect productivity; declining abundance; small cetaceans are gillnets and trammel effects of fishing include: Depletion of small, isolated population). Therefore, nets, thousands of which are set in prey resources, pollution, noise we find that the information in the coastal waters off western Taiwan disturbance, altered behavioral petition and in our files would lead a (Dungan et al., 2011). Injury due to responses to prey aggregation in fishing reasonable person to conclude that S. entanglement is evident in the gear, and potential changes to social chinensis taiwanensis may warrant Taiwanese humpback dolphin structure arising from the deaths of listing as a threatened or endangered population, identified by characteristic individuals caused by fisheries activity. species throughout all or a significant markings on the body, including In fact, individual Taiwanese humpback portion of its range. constrictive line wraps, and direct dolphins have shown evidence of observation of gear wrapped around the disturbance from all of these effects Petition Finding dolphin (Ross et al., 2010; Slooten et al., (Slooten et al., 2013), and injuries from After reviewing the information 2013). In a study exploring the impact fishing gear and boat collisions can contained in the petition, as well as of fisheries on the Taiwanese humpback compromise the health of individuals information readily available in our dolphin, 59.2 percent of injuries (lethal and their capacity to adjust to other files, and based on the above analysis, and non-lethal) observed were stressors, or cause death (Dungan et al., we conclude the petition presents confirmed to have originated from 2011). substantial scientific information fisheries interactions (Slooten et al., While the petition provides indicating the petitioned action of 2013). Even in non-lethal interactions, insufficient evidence to quantify the listing the Taiwanese humpback injuries sustained due to encounters impact of fishing activities on the dolphin (S. chinensis taiwanensis) as a with fishing gear may lead to mortality population of Taiwanese humpback threatened or endangered species may via immunosuppression, stress, and dolphin, the annual removal of even a be warranted. Therefore, in accordance malnutrition, although these effects are few individuals from such a small with section 4(b)(3)(B) of the ESA and not easily measured (Dungan et al., population due to fisheries interactions NMFS’ implementing regulations (50 2011). In total, one third of 32 photo- can disproportionally reduce population CFR 424.14(b)(3)), we will commence a identified Taiwanese humpback viability and could eventually lead to status review of the species. During the dolphins had scars thought to have been the extinction of the subspecies (Ross et status review, we will determine caused by either collisions with ships or al., 2010; Dungan et al., 2011; Slooten whether the Taiwanese humpback interactions with fishing gear (Wang et et al., 2013). In fact, studies show that dolphin is in danger of extinction al., 2004). Further, while over 30 to ensure viability of the Taiwanese (endangered) or likely to become so percent of the Taiwanese humpback humpback dolphin population, (threatened) throughout all or a dolphin population exhibits evidence of mortality caused by fishing gear must be significant portion of its range. We now fisheries interactions, including reduced to less than one individual initiate this review, and thus, S. wounds, scars, and entanglement (Wang every 7 years (Slooten et al., 2013). chinensis taiwanensis is considered to et al., 2007b; Slooten et al., 2013), this Therefore, based on the information be a candidate species (69 FR 19975; measurement likely underestimates the presented in the petition and in our April 15, 2004). Within 12 months of full extent of the threat, and the files, we conclude that overutilization the receipt of the petition (March 9, prevalence of internal damage from may be a threat negatively impacting the 2017), we will make a finding as to ingestion of fishing gear cannot be Taiwanese humpback dolphin, such whether listing the Taiwanese determined using current survey that it is cause for concern and warrants humpback dolphin as an endangered or methods (Slooten et al., 2013). There are further investigation to see if the species threatened species is warranted as also two unpublished reports of dead, warrants listing as threatened or required by section 4(b)(3)(B) of the stranded Taiwanese humpback dolphins endangered under the ESA. ESA. If listing is found to be warranted, suspected to have died as a result of a While the petition identifies we will publish a proposed rule and fisheries interaction (Ross et al., 2010). numerous other threats to the species, solicit public comments before Thousands of vessels fish with gillnets including diseases, the inadequacy of developing and publishing a final rule. and trammel nets in waters used by existing regulatory mechanisms, and humpback dolphins along the west other natural or manmade factors (e.g., Information Solicited coast of Taiwan. In fact, as of 2009, a climate change and ocean acidification), To ensure that the status review is total of 6,318 motorized fishing vessels we find that the petition and based on the best available scientific were operating inside the dolphins’ information in our files suggests that and commercial data, we are soliciting

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information on whether the Taiwanese planned efforts to protect and restore Authority humpback dolphin is endangered or the species and its habitat; and (7) threatened. Specifically, we are management, regulatory, and The authority for this action is the soliciting information in the following enforcement information. We request Endangered Species Act of 1973, as areas: (1) Historical and current that all information be accompanied by: amended (16 U.S.C. 1531 et seq.). distribution and abundance of the (1) Supporting documentation such as Dated: May 4, 2016. species throughout its range; (2) maps, bibliographic references, or Samuel D. Rauch III, reprints of pertinent publications; and historical and current population Deputy Assistant Administrator for trends; (3) life history and habitat (2) the submitter’s name, address, and any association, institution, or business Regulatory Programs, National Marine requirements; (4) population structure Fisheries Service. that the person represents. information, such as genetics analyses [FR Doc. 2016–11014 Filed 5–11–16; 8:45 am] of the species; (5) past, current and References Cited BILLING CODE 3510–22–P future threats, including any current or A complete list of references is planned activities that may adversely available upon request to the Office of impact the species; (6) ongoing or Protected Resources (see ADDRESSES).

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Notices Federal Register Vol. 81, No. 92

Thursday, May 12, 2016

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: official record of the National contains documents other than rules or Purpose of the Meeting: To provide Agricultural Research, Extension, proposed rules that are applicable to the advice and recommendations on the top Education, and Economics Advisory public. Notices of hearings and investigations, priorities and policies for food and Board and will be kept on file for public committee meetings, agency decisions and agricultural research, education, review in the Research, Education, and rulings, delegations of authority, filing of petitions and applications and agency extension and economics. Economics Advisory Board Office. statements of organization and functions are Tentative Agenda: The agenda can be Done at Washington, DC, this 4th day of examples of documents appearing in this found at https://nareeeab.ree.usda.gov/ May 2016. section. meetings/general-meetings will include Ann M. Bartuska, the following items: • Deputy Under Secretary, Research, Education Discussion and deliberation on the and Economics. DEPARTMENT OF AGRICULTURE draft report of recommendations on the [FR Doc. 2016–11211 Filed 5–11–16; 8:45 am] mandatory annual relevance and BILLING CODE 3410–03–P Office of the Secretary adequacy review of the food safety and human nutrition programs and activities Meeting Notice of the National of the Research, Education, and DEPARTMENT OF AGRICULTURE Agricultural Research, Extension, Economics mission area and to establish Education, and Economics Advisory the relevance and adequacy committee Animal and Plant Health Inspection Board for the 2017 review on responding to Service AGENCY: Research, Education, and climate and energy needs. • Economics, USDA. Discussion on establishing national [Docket No. APHIS–2016–0028] priorities and on reviewing the ACTION: Notice of meeting. mechanism for technology assessment Availability of an Environmental Assessment for Field Testing of a SUMMARY: In accordance with the in USDA. • Vaccine for Use Against Infectious Federal Advisory Committee Act, 5 Updates on the activities of the Laryngotracheitis, Marek’s Disease, U.S.C. App 2, Section 1408 of the Research, Education, and Economics and Newcastle Disease National Agricultural Research, mission area. • Updates from the permanent Extension, and Teaching Policy Act of AGENCY: Animal and Plant Health subcommittees and working groups of 1977 (7 U.S.C. 3123), and the Inspection Service, USDA. the NAREEE Advisory Board, including Agricultural Act of 2014, the United ACTION: Notice of availability. States Department of Agriculture the presentation and deliberation of the (USDA) announces an open meeting of letter of Recommendations of the Citrus SUMMARY: We are advising the public the National Agricultural Research, Disease Subcommittee on the annual that the Animal and Plant Health Extension, Education, and Economics consultation with the National Institute Inspection Service has prepared an Advisory Board. of Food and Agriculture. environmental assessment concerning Public Participation: This meeting is DATES: The National Agricultural authorization to ship for the purpose of open to the public and any interested Research, Extension, Education, and field testing, and then to field test, an individuals wishing to attend. Economics Advisory Board will meet unlicensed Infectious Laryngotracheitis- Opportunity for public comment will be from 8:30 a.m. until 5:00 p.m. EDT on Marek’s Disease-Newcastle Disease offered each day of the meeting. To May 23, 2016, and May 24, 2016. Vaccine, Serotype 3, Live Marek’s attend the meeting and/or make oral Disease Vector. Based on the ADDRESSES: The meeting will be held at statements regarding any items on the the Grand Hyatt Washington, 1000 H environmental assessment, risk analysis agenda, you must contact Shirley and other relevant data, we have Street NW., Washington, DC. Written Morgan-Jordan at 202–720–3684; email: comments from the public may be sent reached a preliminary determination [email protected] at least 5 that field testing this veterinary vaccine to: The National Agricultural Research, business days prior to the meeting. Extension, Education, and Economics will not have a significant impact on the Members of the public will be heard in quality of the human environment. We Advisory Board Office, Room 332A, the order in which they sign up at the Whitten Building, United States are making the documents available to beginning of the meeting. The Chair will the public for review and comment. Department of Agriculture, STOP 0321, conduct the meeting to facilitate the 1400 Independence Avenue SW., orderly conduct of business. Written DATES: We will consider all comments Washington, DC 20250–0321. comments by attendees or other that we receive on or before June 13, FOR FURTHER INFORMATION CONTACT: interested stakeholders will be 2016. Michele Esch, Executive Director, or welcomed for the public record before ADDRESSES: You may submit comments Shirley Morgan-Jordan, Program and up to two weeks following the by either of the following methods: Support Coordinator, National Board meeting (by close of business • Federal eRulemaking Portal: Go to Agricultural Research, Extension, Friday, June 10, 2016). All written http://www.regulations.gov/ Education, and Economics Advisory statements must be sent to Michele #!docketDetail;D=APHIS-2016-0028. Board; telephone: (202) 720–3684; fax: Esch, Designated Federal Officer and • Postal Mail/Commercial Delivery: (202) 720–6199; or email: michele.esch@ Executive Director, at the address listed Send your comment to Docket No. usda.gov or Shirley.Morgan@ above or via email [email protected]. APHIS–2016–0028, Regulatory Analysis ars.usda.gov. All statements will become a part of the and Development, PPD, APHIS, Station

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3A–03.8, 4700 River Road Unit 118, product, an applicant must obtain conclusions of the original EA and the Riverdale, MD 20737–1238. approval from APHIS, as well as obtain issuance of a FONSI, APHIS does not Supporting documents and any APHIS’ authorization to ship the intend to issue a separate EA and FONSI comments we receive on this docket product for field testing. to support the issuance of the product may be viewed at http:// To determine whether to authorize license, and would determine that an www.regulations.gov/ shipment and grant approval for the environmental impact statement need #!docketDetail;D=APHIS-2016-0028 or field testing of the unlicensed product not be prepared. APHIS intends to issue in our reading room, which is located in referenced in this notice, APHIS a veterinary biological product license room 1141 of the USDA South Building, considers the potential effects of this for this vaccine following completion of 14th Street and Independence Avenue product on the safety of animals, public the field test provided no adverse SW., Washington, DC. Normal reading health, and the environment. Based impacts on the human environment are room hours are 8 a.m. to 4:30 p.m., upon a risk analysis provided by the identified and provided the product Monday through Friday, except requester and other relevant data, meets all other requirements for holidays. To be sure someone is there to APHIS has prepared an environmental licensing. assessment (EA) concerning the field help you, please call (202) 7997039 Authority: 21 U.S.C. 151–159. before coming. testing of the following unlicensed veterinary biological product: Done in Washington, DC, this 6th day of FOR FURTHER INFORMATION CONTACT: Dr. May 2016. Donna Malloy, Operational Support Requester: Merck Animal Health, Kevin Shea, Section, Center for Veterinary Biologics, Intervet Inc. Product: Infectious Laryngotracheitis- Policy, Evaluation, and Licensing, VS, Administrator, Animal and Plant Health Marek’s Disease-Newcastle Disease Inspection Service. APHIS, 4700 River Road Unit 148, Vaccine, Serotype 3, Live Marek’s Riverdale, MD 20737–1231; phone (301) [FR Doc. 2016–11148 Filed 5–11–16; 8:45 am] Disease Vector. BILLING CODE 3410–34–P 851–3426, fax (301) 734–4314. Possible Field Test Locations: For information regarding the Arkansas, South Carolina, and Georgia. environmental assessment or the risk The above-mentioned product is a DEPARTMENT OF AGRICULTURE analysis, or to request a copy of the live Marek’s Disease serotype 3 vaccine environmental assessment (as well as virus containing a gene from the Animal and Plant Health Inspection the risk analysis with confidential Newcastle disease virus and two genes Service business information removed), contact from the infectious laryngotracheitis [Docket No. APHIS–2016–0020] Dr. Patricia L. Foley, Risk Manager, virus. The attenuated vaccine is Center for Veterinary Biologics, Policy, intended for use in healthy 18-day-old Availability of an Environmental Evaluation, and Licensing, VS, APHIS, or older embryonated eggs or day-old Assessment for Issuance of a Permit 1920 Dayton Avenue, P.O. Box 844, chickens, as an aid in the prevention of for Distribution and Sale for Ames, IA 50010; phone (515) 337–6100, infectious laryngotracheitis, Marek’s Emergency Use of a Classical Swine fax (515) 337–6120. disease, and Newcastle disease. Fever Virus Vaccine, Live Pestivirus SUPPLEMENTARY INFORMATION: Under the The EA has been prepared in Vector Virus-Serum-Toxin Act (21 U.S.C. 151 accordance with: (1) The National et seq.), the Animal and Plant Health Environmental Policy Act of 1969 AGENCY: Animal and Plant Health Inspection Service (APHIS) is (NEPA), as amended (42 U.S.C. 4321 et Inspection Service, USDA. authorized to promulgate regulations seq.), (2) regulations of the Council on ACTION: Notice of availability. designed to ensure that veterinary Environmental Quality for biological products are pure, safe, implementing the procedural provisions SUMMARY: We are advising the public potent, and efficacious before a of NEPA (40 CFR parts 1500–1508), (3) that the Animal and Plant Health veterinary biological product license USDA regulations implementing NEPA Inspection Service has prepared an may be issued. Veterinary biological (7 CFR part 1b), and (4) APHIS’ NEPA environmental assessment concerning products include viruses, serums, Implementing Procedures (7 CFR part authorization to import under permit, toxins, and analogous products of 372). for distribution and sale for emergency natural or synthetic origin, such as We are publishing this notice to use, a Classical Swine Fever Virus vaccines, antitoxins, or the immunizing inform the public that we will accept Vaccine, Live Pestivirus Vector. The components of microorganisms written comments regarding the EA environmental assessment, which is intended for the diagnosis, treatment, or from interested or affected persons for a based on a risk analysis prepared to prevention of diseases in domestic period of 30 days from the date of this assess the risks associated with the use animals. notice. Unless substantial issues with of this vaccine, examines the potential APHIS issues licenses to qualified adverse environmental impacts are effects that this veterinary vaccine could establishments that produce veterinary raised in response to this notice, APHIS have on the quality of the human biological products and issues permits intends to issue a finding of no environment. Based on the risk analysis to importers of such products. APHIS significant impact (FONSI) based on the and other relevant data, we have also enforces requirements concerning EA and authorize shipment of the above reached a preliminary determination production, packaging, labeling, and product for the initiation of field tests that use of this veterinary vaccine will shipping of these products and sets following the close of the comment not have a significant impact on the standards for the testing of these period for this notice. quality of the human environment, and products. Regulations concerning Because the issues raised by field that an environmental impact statement veterinary biological products are testing and by issuance of a license are need not be prepared. We intend to contained in 9 CFR parts 101 to 124. identical, APHIS has concluded that the authorize shipment of this vaccine A field test is generally necessary to EA that is generated for field testing under permit for distribution and sale satisfy prelicensing requirements for would also be applicable to the for emergency use in the United States veterinary biological products. Prior to proposed licensing action. Provided that following the close of the comment conducting a field test on an unlicensed the field test data support the period for this notice unless new

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substantial issues bearing on the effects APHIS issues licenses to qualified seq.), (2) regulations of the Council on of this action are brought to our establishments that produce veterinary Environmental Quality for attention and provided the product biological products and issues permits implementing the procedural provisions meets all requirements for approval. to importers of such products. APHIS of NEPA (40 CFR parts 1500–1508), (3) DATES: We will consider all comments also enforces requirements concerning USDA regulations implementing NEPA that we receive on or before June 13, production, packaging, labeling, and (7 CFR part 1b), and (4) APHIS’ NEPA 2016. shipping of these products and sets Implementing Procedures (7 CFR part standards for the testing of these 372). ADDRESSES: You may submit comments products. Regulations concerning Unless substantial issues with adverse by either of the following methods: veterinary biological products are environmental impacts are raised in • Federal eRulemaking Portal: Go to contained in 9 CFR parts 101 to 124. response to this notice, APHIS intends http://www.regulations.gov/ Veterinary biological products to issue a finding of no significant #!docketDetail;D=APHIS-2016-0020. meeting the requirements of the impact based on the EA and authorize • Postal Mail/Commercial Delivery: regulations may be considered for the importation under permit of the Send your comment to Docket No. addition to the U.S. National Veterinary above product for distribution and sale APHIS–2016–0020, Regulatory Analysis Stockpile (NVS). The NVS is the for emergency use following the close of and Development, PPD, APHIS, Station nation’s repository of vaccines and other the comment period for this notice, 3A–03.8, 4700 River Road Unit 118, critical veterinary supplies and provided the product meets all other Riverdale, MD 20737–1238. equipment. It exists to augment State requirements for approval. Supporting documents and any and local resources in responding to Authority: 21 U.S.C. 151–159. comments we receive on this docket high-consequence livestock diseases may be viewed at http:// that could potentially devastate U.S. Done in Washington, DC, this 6th day of www.regulations.gov/#!docketDetail; agriculture, seriously affect the May 2016. D=APHIS-2016-0020 or in our reading economy, and threaten public health. Kevin Shea, room, which is located in Room 1141 of The NVS vaccines would be used in Administrator, Animal and Plant Health the USDA South Building, 14th Street APHIS programs or under U.S. Inspection Service. and Independence Avenue SW., Department of Agriculture control or [FR Doc. 2016–11149 Filed 5–11–16; 8:45 am] Washington, DC. Normal reading room supervision. The manufacturer of BILLING CODE 3410–34–P hours are 8 a.m. to 4:30 p.m., Monday Classical Swine Fever Virus Vaccine, through Friday, except holidays. To be Live Pestivirus Vector, has been sure someone is there to help you, awarded a contract to supply the DEPARTMENT OF AGRICULTURE please call (202) 799–7039 before vaccine to the NVS for emergency use coming. in the United States. The addition of Animal and Plant Health Inspection Service FOR FURTHER INFORMATION CONTACT: Dr. this vaccine to the stockpile would not Donna Malloy, Operational Support preclude private development and use [Docket No. APHIS–2015–0042] Section, Center for Veterinary Biologics, of other vaccines meeting the Notice of Availability of an Evaluation Policy, Evaluation, and Licensing, VS, requirements of the Virus-Serum-Toxin of the Fever Tick Status of the State of APHIS, 4700 River Road Unit 148, Act. Chihuahua, Excluding the Riverdale, MD 20737–1231; phone (301) To determine whether to authorize Municipalities of Guadalupe y Calvo 851–3426, fax (301) 734–4314. shipment and grant approval for the use and Morelos For information regarding the of the imported product referenced in this notice, APHIS has considered the environmental assessment or the risk AGENCY: Animal and Plant Health potential effects of this product on the analysis, or to request a copy of the Inspection Service, USDA. safety of animals, public health, and the environmental assessment (as well as ACTION: Notice of availability. the risk analysis with confidential environment. Using a risk analysis and business information removed), contact other relevant data, APHIS has prepared SUMMARY: We are notifying the public Dr. Patricia L. Foley, Risk Manager, an environmental assessment (EA) that we have prepared an evaluation of Center for Veterinary Biologics, Policy, concerning the safety testing of the the State of Chihuahua, excluding the Evaluation, and Licensing, VS, APHIS, following unlicensed veterinary municipalities of Guadalupe y Calvo 1920 Dayton Avenue, P.O. Box 844, biological product: and Morelos, for fever ticks. The Requester: Zoetis, Inc. evaluation concludes that this region is Ames, IA 50010; phone (515) 337–6100, Product: Classical Swine Fever Virus fax (515) 337–6120. free from fever ticks, and that ruminants Vaccine, Live Pestivirus Vector. imported from the area pose a low risk SUPPLEMENTARY INFORMATION: Under the The above-mentioned product is a of exposing ruminants within the Virus-Serum-Toxin Act (21 U.S.C. 151 single-dose 1-mL modified live product United States to fever ticks. We are et seq.), the Animal and Plant Health for emergency vaccination in an making the evaluation available for Inspection Service (APHIS) is outbreak situation. The proposed review and comment. authorized to promulgate regulations indication is intramuscular designed to ensure that veterinary administration to healthy swine 6 weeks DATES: We will consider all comments biological products are pure, safe, of age or older as an aid in preventing that we receive on or before July 11, potent, and efficacious. Veterinary mortality and viremia caused by 2016. biological products include viruses, classical swine fever virus. ADDRESSES: You may submit comments serums, toxins, and analogous products Possible Field Use Locations: Where by either of the following methods: of natural or synthetic origin, such as Federal and State authorities agree on • Federal eRulemaking Portal: Go to vaccines, antitoxins, or the immunizing use. http://www.regulations.gov/ components of microorganisms The EA has been prepared in #!docketDetail;D=APHIS-2015-0042. intended for the diagnosis, treatment, or accordance with: (1) The National • Postal Mail/Commercial Delivery: prevention of diseases in domestic Environmental Policy Act of 1969 Send your comment to Docket No. animals. (NEPA), as amended (42 U.S.C. 4321 et APHIS–2015–0042, Regulatory Analysis

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and Development, PPD, APHIS, Station ADDRESSES above) or by contacting the SUPPLEMENTARY INFORMATION: 3A–03.8, 4700 River Road Unit 118, person listed in this document under Background Riverdale, MD 20737–1238. the heading FOR FURTHER INFORMATION Supporting documents and any CONTACT. After the close of the comment In accordance with the provisions of comments we receive on this docket period, we will notify the public of our FACA, the Secretary of Agriculture is may be viewed at http:// final determination regarding the status seeking nominations for the purpose of www.regulations.gov/ of the State of Chihuahua, excluding the improving collaborative relationships #!docketDetail;D=APHIS-2015-0042 or municipalities of Guadalupe y Calvo among people who use and care for in our reading room, which is located in and Morelos, for fever ticks. National Forests and provide advice and room 1141 of the USDA South Building, Authority: 7 U.S.C. 1622 and 8301–8317; recommendations to the Forest Service 14th Street and Independence Avenue 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 concerning projects and funding SW., Washington, DC. Normal reading CFR 2.22, 2.80, and 371.4. consistent with Title II of the Act. The room hours are 8 a.m. to 4:30 p.m., Done in Washington, DC, this 6th day of duties of SRS RACs include monitoring Monday through Friday, except May 2016. projects, advising the Secretary on the holidays. To be sure someone is there to Kevin Shea, progress and results of monitoring help you, please call (202) 799–7039 Administrator, Animal and Plant Health efforts, and making recommendations to before coming. Inspection Service. the Forest Service for any appropriate changes or adjustments to the projects FOR FURTHER INFORMATION CONTACT: Dr. [FR Doc. 2016–11150 Filed 5–11–16; 8:45 am] being monitored by the SRS RACs. Betzaida Lopez, Senior Staff BILLING CODE 3410–34–P Veterinarian, National Import Export SRS RACs Membership Services, VS, APHIS, 4700 River Road Unit 39, Riverdale, MD 20737; (301) DEPARTMENT OF AGRICULTURE The SRS RACs will be comprised of 851–3300. 15 members approved by the Secretary of Agriculture. SRS RACs membership SUPPLEMENTARY INFORMATION: Forest Service The will be fairly balanced in terms of the regulations in 9 CFR part 93 prohibit or Secure Rural Schools Resource points of view represented and restrict the importation of certain Advisory Committees functions to be performed. The SRS animals, birds, and poultry into the RACs members will serve 4-year terms. AGENCY: Forest Service, USDA. United States to prevent the The SRS RACs shall include introduction of communicable diseases ACTION: Call for Nominations. representation from the following of livestock and poultry. Subpart D of SUMMARY: The United States Department interest areas: part 93 (§§ 93.400 through 93.436, (1) Five persons that— referred to below as the regulations) of Agriculture (USDA) is seeking nominations for the Secure Rural (a) represent organized labor or non- governs the importation of ruminants; timber forest product harvester groups; within the regulations, §§ 93.424 Schools Resource Advisory Committees (SRS RACs) pursuant the Secure Rural (b) represent developed outdoor through 93.429 specifically address the recreation, off-highway vehicle users, or importation of various ruminants from Schools and Community Self- Determination Act (Pub. L. 110–343) commercial recreation activities; Mexico into the United States. (c) represent energy and mineral The regulations in paragraph (b)(1) of (the Act) and the Federal Advisory Committee Act (FACA) (5 U.S.C., App. development, or commercial or § 93.427 contain conditions for the recreational fishing interests; importation of ruminants from regions 2). Additional information on the SRS RACs can be found by visiting SRS (d) represent the commercial timber of Mexico that we consider free from industry; or fever ticks (Boophilus annulatus). RACs Web site at: http:// www.fs.usda.gov/pts/. (e) hold Federal grazing or other land Regions of Mexico that we consider free use permits, or represent nonindustrial DATES: Written nominations must be from fever ticks are listed at http:// private forest land owners, within the www.aphis.usda.gov/wps/portal/aphis/ received by June 27, 2016. Nominations must contain a completed application area for which the committee is ourfocus/importexport. Currently, the organized. State of Sonora is the only region on this packet that includes the nominee’s name, resume, and completed Form (2) Five persons that represent— list. (a) nationally recognized AD–755 (Advisory Committee or Mexico has asked the Animal and environmental organizations; Research and Promotion Background Plant Health Inspection Service to (b) regionally or locally recognized Information). The package must be sent recognize the State of Chihuahua, environmental organizations; to the address below. except the municipalties of Guadalupe y (c) dispersed recreational activities; Calvo and Morelos, as a region free from ADDRESSES: See SUPPLEMENTARY (d) archaeological and historical fever ticks. In response to this request, INFORMATION under Nomination and interests; or we have prepared an evaluation of the Application Information for the address (e) nationally or regionally recognized fever tick status of this region. The of the SRS RAC Regional Coordinators wild horse and burro interest groups, evaluation concludes that the State of accepting nominations. wildlife or hunting organizations, or Chihuahua, excluding the FOR FURTHER INFORMATION CONTACT: watershed associations. municipalities of Guadalupe y Calvo David Bergendorf, Senior Program (3) Five persons that— and Morelos, is free from fever ticks, Specialist, Forest Service Secure Rural (a) hold State elected Office (or and that ruminants imported from the Schools Program, by telephone at (202) designee); region pose a low risk of exposing 205–1468, or by email at dwbergendorf@ (b) hold county or local elected office; ruminants within the United States to fs.fed.us. Individuals who use (c) represent American Indian tribes fever ticks. telecommunication devices for the deaf within or adjacent to the area for which We are making the evaluation (TDD) may call the Federal Information the committee is organized; available for public review and Relay Service (FIRS) at 1–800–877–8339 (d) are school officials or teachers; or comment. The assessment is available between 8 a.m. and 5 p.m., Eastern (e) represent the affected public at on the Regulations.gov Web site (see Standard Time, Monday through Friday. large.

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In the event that a vacancy arises, the Missoula, Montana 59807–7669, (406) Pacific Southwest Regional Office— Designated Federal Officer (DFO) may 329–3149. Region V fill the vacancy with a replacement Carol McKenzie, Northern Regional member appointed by the Secretary, if Alpine County RAC, Amador County Coordinator (Idaho), Forest Service, RAC, Butte County RAC, Del Norte an appropriate replacement member is 3815 Schreiber Way, Coeur d’Alene, available. In accordance with the Act, County RAC, El Dorado County RAC, Idaho 83815–8363, (208) 765–7380. members of the SRS RAC shall serve Fresno County RAC, Glenn and Colusa without compensation. SRS RAC Rocky Mountain Regional Office— Counties RAC, Humboldt County RAC, members and replacements may be Region II Kern and Tulare Counties RAC, Lake allowed travel expenses and per diem County RAC, Lassen County RAC, for attendance at committee meetings, Bighorn RAC, Black Hills RAC, Grand Madera County RAC, Mendocino subject to approval of the DFO Mesa Uncompahgre Gunnison (GMUG) County RAC, Modoc County RAC, responsible for administrative support RAC, Medicine Bow-Routt RAC, Pike- Nevada and Placer Counties RAC, to the SRS RAC. San Isabel RAC, Saguache RAC, San Plumas County RAC, Shasta County Juan RAC, Shoshone RAC, Upper Rio RAC, Sierra County RAC, Siskiyou Nomination and Application Grande RAC Information County RAC, Tehama RAC, Trinity County RAC, Tuolumne and Mariposa Jace Ratzlaff, Rocky Mountain The appointment of members to the Counties RAC SRS RACs will be made by the Secretary Regional Coordinator, Forest Service, of Agriculture. The public is invited to 740 Simms Street, Golden, Colorado Marty Dumpis, Pacific Southwest submit nominations for membership on 80401, (719) 469–1254. Regional Coordinator, Forest Service, the SRS RACs, either as a self- Southwestern Regional Office—Region 1323 Club Drive, Vallejo, California nomination or a nomination of any III 94592, (909) 599–1267. qualified and interested person. Any individual or organization may Coconino County RAC, Eastern Arizona Pacific Northwest Regional Office—VI nominate one or more qualified persons RAC, Northern New Mexico RAC, Columbia County RAC, Colville RAC, to represent the interest areas listed Southern Arizona RAC, Southern New Deschutes and Ochoco RAC, Fremont above. To be considered for Mexico RAC, Yavapai RAC and Winema RAC, Hood and Willamette membership, nominees must: RAC, North Gifford Pinchot RAC, North 1. Be a resident of the State in which Mark Chavez, Southwestern Regional Mt. Baker-Snoqualmie RAC, Northeast the SRS RAC has jurisdiction; Coordinator, Forest Service, 333 Oregon Forests RAC, Olympic Peninsula 2. Identify what interest group they Broadway SE., Albuquerque, New RAC, Rogue and Umpqua RAC, Siskiyou would represent and how they are Mexico 87102, (505) 842–3393. qualified to represent that interest (OR) RAC, Siuslaw RAC, Snohomish group; Intermountain Regional Office—Region County RAC, South Gifford Pinchot 3. Provide a cover letter stating why IV RAC, South Mt. Baker-Snoqualmie RAC, Southeast Washington Forest RAC, they want to serve on the SRS RAC and Ashley RAC, Bridger-Teton RAC, Wenatchee-Okanogan RAC what they can contribute; Central Idaho RAC, Dixie RAC, Eastern 4. Provide a resume showing their Idaho RAC, Elko RAC, Fishlake RAC, Amber Sprinkle, Pacific Northwest past experience in working successfully Humboldt (NV) RAC, Lyon-Mineral Regional Office, Forest Service, 595 as part of a group working on forest RAC, Manti-La Sal RAC, South Central management activities; and Northwest Industrial Way, Estacada, Idaho RAC, Southwest Idaho RAC, 5. Complete Form AD–755, Advisory Oregon 97023, (503) 808–2242. Uinta-Wasatch Cache RAC, White Pine- Committee or Research and Promotion Glen Sachet, Pacific Northwest Nye RAC Background Information. The Form AD– Regional Office, Forest Service, 1220 755 may be obtained from the Regional Andy Brunelle, Intermountain Southwest 3rd Avenue, Portland, Coordinators listed below or from the Regional Coordinator (Idaho/Utah), Oregon 97204, (503) 545–6083. following SRS RACs Web site: http:// Forest Service, Federal Building, 324 Kathy Anderson, Pacific Northwest www.fs.usda.gov/main/pts/ 25th Street, Ogden, Utah 84401, (208) Regional Office, Forest Service, 1220 specialprojects/racs. All nominations 344–1770. Southwest 3rd Avenue, Portland, will be vetted by the Agency. Oregon 97204, (503) 545–6083. Nominations and completed Cheva Gabor, Intermountain Regional applications for SRS RACs should be Coordinator (Nevada), Forest Service, 35 Southern Regional Office—Region VIII sent to the appropriate Forest Service College Drive, South Lake Tahoe, Regional Offices listed below: California 96150, (530) 543–2600. Alabama RAC, Cherokee RAC, Daniel Boone RAC, Davy Crockett RAC, Delta- Northern Regional Office—Region I Bienville RAC, DeSoto RAC, Florida Central Montana RAC, Flathead RAC, National Forests RAC, Francis Marion- Gallatin RAC, Idaho Panhandle RAC, Sumter RAC, Holly Springs-Tombigbee Lincoln RAC, Mineral County RAC, RAC, Kisatchie RAC, Ozark-Ouachita Missoula RAC, Missouri River RAC, RAC, Sabine-Angelina RAC, Southwest North Central Idaho RAC, Ravalli RAC, Mississippi RAC, Virginia RAC Sanders RAC, Southern Montana RAC, Southwest Montana RAC, Tri-County Steve Bekkerus, Southern Regional RAC Coordinator, Forest Service, 1720 Peachtree Road, Northwest, Atlanta, Jerry Drury, Northern Regional Georgia 30309, (404) 347–7240. Coordinator (Montana), Forest Service, Federal Building, 200 East Broadway,

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Eastern Regional Office—Region IX minimize the burden of the collection of attention; to plan corrective actions information on those who are to when needed; to budget funds and Allegheny RAC, Chequamegon RAC, respond, including through the use of manpower for needed work; and to Chippewa National Forest RAC, Eleven appropriate automated, electronic, initiate ongoing programs as necessary Point RAC, Gogebic RAC, Hiawatha East mechanical, or other technological to avoid or minimize the need for RAC, Hiawatha West RAC, Huron- collection techniques or other forms of Manistee RAC, Nicolet RAC, Ontonagon ‘‘catch-up’’ programs. information technology. Description of Respondents: Not-for- RAC, Superior RAC, West Virginia RAC Comments regarding this information profit institutions; Business or other for- David Scozzafave, Eastern Regional collection received by June 13, 2016 profit. Coordinator, Forest Service, 626 East will be considered. Written comments Number of Respondents: 208. Wisconsin Avenue, Milwaukee, should be addressed to: Desk Officer for Frequency of Responses: Reporting: Wisconsin 53202, (414) 297–3602. Agriculture, Office of Information and On occasion. Alaska Regional Office—Region X Regulatory Affairs, Office of Total Burden Hours: 832. Management and Budget (OMB), New Juneau RAC, Kenai Peninsula- Executive Office Building, 725 17th Charlene Parker, Anchorage Borough RAC, Ketchikan Street NW., Washington, DC 20502. Departmental Information Collection RAC, Lynn Canal-Icy Strait RAC, Prince Commenters are encouraged to submit Clearance Officer. of Wales Island RAC, Prince William their comments to OMB via email to: [FR Doc. 2016–11139 Filed 5–11–16; 8:45 am] Sound RAC, Sitka RAC, Wrangell- [email protected] or BILLING CODE 3410–15–P Petersburg RAC, Yakutat RAC fax (202) 395–5806 and to Departmental Dawn Heutte, Alaska Regional Clearance Office, USDA, OCIO, Mail Coordinator, Forest Service, 709 West Stop 7602, Washington, DC 20250– DEPARTMENT OF COMMERCE 9th Street, Room 559A, Juneau, Alaska 7602. Copies of the submission(s) may Foreign-Trade Zones Board 99801–1807, (907) 586–7836. be obtained by calling (202) 720–8958. Equal opportunity practices in An agency may not conduct or [B–30–2016] accordance with USDA policies shall be sponsor a collection of information followed in all appointments to the unless the collection of information Foreign-Trade Zone (FTZ) 125—South Panel. To ensure that the displays a currently valid OMB control Bend, Indiana; Notification of recommendations of the Panel have number and the agency informs Proposed Production Activity; taken into account the needs of the potential persons who are to respond to LionsHead Specialty Tire & Wheel, LLC diverse groups served by USDA, the collection of information that such (Wheel Assemblies for Specialty membership will, to the extent persons are not required to respond to Applications); Goshen, Indiana practicable, include individuals with the collection of information unless it LionsHead Specialty Tire & Wheel, demonstrated ability to represent all displays a currently valid OMB control LLC (LionsHead) submitted a racial and ethnic groups, women and number. notification of proposed production men, and persons with disabilities. Rural Utilities Service activity to the FTZ Board for its facility Dated: May 3, 2016. Title: 7 CFR 1730, Review Rating in Goshen, Indiana. The notification Gregory L. Parham, Summary. conforming to the requirements of the Assistant Secretary for Administration. OMB Control Number: 0572–0025. regulations of the FTZ Board (15 CFR [FR Doc. 2016–11165 Filed 5–11–16; 8:45 am] Summary of Collection: The Rural 400.22) was received on May 3, 2016. BILLING CODE 3411–15–P Utilities Service (RUS) manages loan A separate application for usage- programs in accordance with the Rural driven site designation at the LionsHead Electrification Act (RE Act) of 1936, 7 facility will be submitted and will be DEPARTMENT OF AGRICULTURE U.S.C. 901 et seq., as amended. An processed under Section 400.38 of the important part of safeguarding loan FTZ Board’s regulations. The facility is Rural Utility Service security is to see that RUS financed used to produce wheel assemblies for specialty applications, including trailers Submission for OMB Review; facilities are being responsible used, Comment Request adequately operated, and adequately and golf carts. Pursuant to 15 CFR maintained. Future needs have to be 400.14(b), FTZ activity would be limited May 6, 2016. anticipated to ensure that facilities will to the specific foreign-status materials The Department of Agriculture has continue to produce revenue and loans and components and specific finished submitted the following information will be repaid as required by the RUS products described in the submitted collection requirement(s) to Office of mortgage. Regular periodic operations notification (as described below) and Management and Budget (OMB) for and maintenance (O&M) review can subsequently authorized by the FTZ review and clearance under the identify and correct inadequate O&M Board. Paperwork Reduction Act of 1995, practices before they cause extensive Production under FTZ procedures Public Law 104–13. Comments are harm to the system. Inadequate O&M could exempt LionsHead from customs requested regarding (1) whether the practices can result in public safety duty payments on the foreign-status collection of information is necessary hazards, increased power outages for components used in export production. for the proper performance of the consumers, added expense for On its domestic sales, LionsHead would functions of the agency, including emergency maintenance, and premature be able to choose the duty rates during whether the information will have aging of the borrower’s systems, which customs entry procedures that apply to practical utility; (2) the accuracy of the could increase the loan security risk to wheel assemblies for non-agricultural agency’s estimate of burden including RUS. trailers, golf carts, farm feed tenders, the validity of the methodology and Need and Use of the Information: grain wagons, all-terrain vehicles assumptions used; (3) ways to enhance RUS will collect information using form (ATVs), recreational vehicles (RVs), the quality, utility and clarity of the 300 Review Rate Summary to identity handling equipment, forklifts and other information to be collected; (4) ways to items that may be in need of additional types of industrial lifting equipment

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(duty rates–free to 3.1%) for the foreign- Industrial Co., Ltd. (Dongyuan) made Scope of the Order status inputs noted below. Customs sales of the subject merchandise in the The products covered by the order duties also could possibly be deferred or United States at prices below normal include drawn stainless steel sinks. reduced on foreign-status production value (NV). In addition, we Imports of subject merchandise are equipment. preliminarily find that the other currently classified under the The components sourced from abroad mandatory respondents, B&R Industries Harmonized Tariff Schedule of the include: Radial and bias-ply tires for Limited (B&R Industries), Zhongshan United States (HTSUS) subheadings agricultural machinery, forklifts, ATVs, Newecan Enterprise Development 7324.10.0000 and 7324.10.0010. golf carts, lawn and garden equipment, Corporation (Newecan), and Zhongshan Although the HTSUS subheadings are and passenger cars; specialty tire (ST)- Superte Kitchenware Co., Ltd./Superte provided for convenience and customs rated radial and bias-ply tires for invoiced as Foshan Zhaoshun Trade purposes, the written description of the trailers; steel and aluminum wheels for Co., Ltd. (Superte), are part of the PRC- scope of the order is dispositive.3 agricultural machinery, trailers, golf wide entity and will receive the rate of carts, ATVs, forklifts, and lawn and that entity, which is not under review. Tolling of Deadline of Preliminary garden equipment; and, steel and We are also preliminarily granting Results of Review aluminum wheel parts (duty rates range separate rates to Feidong Import and As explained in the memorandum from free to 4%). Export Co., Ltd. (Feidong) and Ningbo from the Acting Assistant Secretary for Public comment is invited from Afa Kitchen and Bath Co., Ltd. (Ningbo Enforcement and Compliance, the interested parties. Submissions shall be Afa),1 which demonstrated eligibility for Department has exercised its discretion addressed to the FTZ Board’s Executive separate rate status, but were not to toll all administrative deadlines due Secretary at the address below. The selected for individual examination. to the recent closure of the Federal closing period for their receipt is June Additionally, we are preliminarily Government. All deadlines in this 21, 2016. including nine companies 2 that failed segment of the proceeding have been A copy of the notification will be to demonstrate their entitlement to a extended by four business days.4 available for public inspection at the separate rate as part of the PRC-wide Methodology Office of the Executive Secretary, entity. Finally, we preliminarily find Foreign-Trade Zones Board, Room that Shenzhen Kehuaxing Industrial The Department is conducting this 21013, U.S. Department of Commerce, Ltd. (Kehuaxing) made no shipments of review in accordance with section 1401 Constitution Avenue NW., subject merchandise during the POR. If 751(a)(1)(B) of the Tariff Act of 1930, as Washington, DC 20230–0002, and in the these preliminary results are adopted in amended (the Act). For the mandatory ‘‘Reading Room’’ section of the FTZ the final results of this review, we will respondent Dongyuan, export prices Board’s Web site, which is accessible instruct U.S. Customs and Border were calculated in accordance with via www.trade.gov/ftz. Protection (CBP) to assess antidumping section 772 of the Act. Because the PRC For further information, contact Diane duties on all appropriate entries. is a non-market economy (NME) within Finver at [email protected] or Interested parties are invited to the meaning of section 771(18) of the (202) 482–1367. comment on these preliminary results. Act, NV was calculated in accordance Dated: May 5, 2016. with section 773(c) of the Act. DATES: Andrew McGilvray, Effective Date: May 12, 2016. For a full description of the Executive Secretary. FOR FURTHER INFORMATION CONTACT: methodology underlying our [FR Doc. 2016–11236 Filed 5–11–16; 8:45 am] Brian C. Smith or Brandon Custard, AD/ conclusions, see the Preliminary BILLING CODE 3510–DS–P CVD Operations, Office II, Enforcement Decision Memorandum. The and Compliance, International Trade Preliminary Decision Memorandum is a Administration, U.S. Department of public document and is on file DEPARTMENT OF COMMERCE Commerce, 1401 Constitution Avenue electronically via Enforcement and NW., Washington, DC 20230; telephone: Compliance’s Antidumping and International Trade Administration (202) 482–1766 and (202) 482–1823, Countervailing Duty Centralized [A–570–983] respectively. Electronic Service System (ACCESS). ACCESS is available to registered users Drawn Stainless Steel Sinks From the SUPPLEMENTARY INFORMATION: at http://access.trade.gov; the People’s Republic of China: Preliminary Decision Memorandum is Preliminary Results of the 1 On March 21, 2016, the Department determined also available to all parties in the Antidumping Duty Administrative that Ningbo Afa is the successor-in-interest to Central Records Unit, Room B8024 of Yuyao Afa Kitchenware Co., Ltd. (Yuyao Afa), and the main Department of Commerce Review and Preliminary Determination stated that Ningbo Afa will be assigned an updated of No Shipments; 2014–2015 cash deposit rate based on the final results of this building. In addition, a complete administrative review. See Notice of Final Results AGENCY: Enforcement and Compliance, of Antidumping Duty Changed Circumstances 3 For a complete description of the Scope of the International Trade Administration, Review: Drawn Stainless Steel Sinks from the Order, see Memorandum from Christian Marsh, Department of Commerce. People’s Republic of China, 81 FR 16138, 16139 Deputy Assistant Secretary for Antidumping and (March 25, 2016). Countervailing Duty Operations, to Paul Piquado, SUMMARY: The Department of Commerce 2 These nine companies are: (1) J&C Industries Assistant Secretary for Enforcement and (Department) is conducting an Enterprise Limited (J&C Industries); (2) Foshan Compliance, ‘‘Decision Memorandum for administrative review of the Shunde MingHao Kitchen Utensils Co., Ltd. Preliminary Results of the Antidumping Duty (MingHao); (3) Franke Asia Sourcing Ltd. (Franke); Administrative Review: Drawn Stainless Steel Sinks antidumping duty order on drawn (4) Grand Hill Work Company (Grand Hill); (5) from the People’s Republic of China,’’ issued stainless steel sinks (drawn sinks) from Hangzhou Heng’s Industries Co., Ltd. (Heng’s concurrently with and hereby adopted by this the People’s Republic of China (PRC), Industries); (6) Jiangmen Hongmao Trading Co., Ltd. notice (Preliminary Decision Memorandum). for the period of review (POR), April 1, (Hongmao); (7) Jiangxi Zoje Kitchen & Bath Industry 4 See Memorandum to the Record from Ron Co., Ltd. (Zoje); (8) Ningbo Oulin Kitchen Utensils Lorentzen, Acting A/S for Enforcement & 2014, through March 31, 2015. We Co., Ltd. (Ningbo Oulin); (9) Shunde Foodstuffs Compliance, ‘‘Tolling of Administrative Deadlines preliminarily find that respondent Import & Export Company Limited of Guangdong As a Result of the Government Closure During Guangdong Dongyuan Kitchenware (Shunde Foodstuffs). Snowstorm Jonas’’ (January 27, 2016).

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version of the Preliminary Decision MingHao, Ningbo Oulin, and Zoje did Any interested party may request a Memorandum can be accessed directly not submit a separate rate application or hearing within 30 days of publication of on Enforcement and Compliance’s Web certification by the deadline established this notice.12 Hearing requests should site at http://www.trade.gov/ in the Initiation Notice, or make a claim contain the following information: (1) enforcement/. The signed Preliminary that they had no exports, sales, or The party’s name, address, and Decision Memorandum and the entries of subject merchandise during telephone number; (2) the number of electronic version of the Preliminary the POR, we preliminarily find that participants; and (3) a list of the issues Decision Memorandum are identical in these companies failed to establish their to be discussed. Oral presentations will content. A list of the topics discussed in entitlement to a separate rate, and be limited to issues raised in the briefs. the Preliminary Decision Memorandum therefore, remain a part of the PRC-wide If a request for a hearing is made, parties is attached as the Appendix to this entity. The rate previously established will be notified of the time and date for notice. for the PRC-wide entity is 76.45 the hearing to be held at the U.S. 8 Preliminary Determination of No percent. This rate is not under review. Department of Commerce, 1401 Shipments The Department preliminarily Constitution Avenue NW., Washington, 13 determines that the following weighted- DC 20230. On June 24, 2015, Kehuaxing Unless otherwise extended, the submitted a timely-filed certification average dumping margins exist for the period April 1, 2014, through March 31, Department intends to issue the final that it had no exports, sales, or entries results of this administrative review, 5 2015: of subject merchandise during the POR. which will include the results of its Additionally, our inquiry to CBP did not Weighted- analysis of issues raised in the case identify any POR entries of Kehuaxing’s average briefs, within 120 days of publication of subject merchandise. Based on the Exporters dumping these preliminary results, pursuant to foregoing, the Department preliminarily margin section 751(a)(3)(A) of the Act. determines that Kehuaxing did not have (%) any reviewable transactions during the Assessment Rates POR. For additional information Guangdong Dongyuan Kitch- enware Industrial Co., Ltd 1.65 Upon issuance of the final results, the regarding this determination, see the Ningbo Afa Kitchen and Bath Department will determine, and CBP Preliminary Decision Memorandum. Co., Ltd * ...... 1.65 shall assess, antidumping duties on all Consistent with our practice in NME Feidong Import and Export appropriate entries covered by this cases, the Department is not rescinding Co., Ltd * ...... 1.65 review.14 The Department intends to this administrative review for issue appropriate assessment Kehuaxing, but intends to complete the * This company demonstrated that it quali- fied for a separate rate in this administrative instructions to CBP 15 days after the review and issue appropriate review. Consistent with the Department’s prac- publication of the final results of this instructions to CBP based on the final tice, we preliminarily assigned this company a review. results of the review.6 rate of 1.65 percent—the rate calculated for the mandatory respondent in this review.9 For Dongyuan, if we continue to Preliminary Results of Review calculate a weighted-average dumping Disclosure and Public Comment margin that is not zero or de minimis Because B&R Industries, Newecan, (i.e., less than 0.5 percent) in the final and Superte withdrew from The Department intends to disclose to results, we will calculate importer- (or participation in the review and did not the parties the calculations performed customer-) specific per-unit duty respond to the Department’s requests for for these preliminary results within five information, the Department assessment rates based on the ratio of days of the date of publication of this the total amount of dumping calculated preliminarily finds these companies to notice in accordance with 19 CFR be part of the PRC-wide entity.7 for the importer’s (or customer’s) 351.224(b). Interested parties may examined sales to the total sales Additionally, because Shunde submit case briefs no later than 30 days Foodstuffs, Franke, Grand Hill, Heng’s quantity associated with those sales, in after the date of publication of these accordance with 19 CFR 351.212(b)(1).15 Industries, Hongmao, J&C Industries, 10 preliminary results of review. The Department will also calculate Rebuttals to case briefs may be filed no (estimated) ad valorem importer- 5 See Letter from Kehuaxing, ‘‘Drawn Stainless later than five days after the written Steel Sinks from People’s Republic of China; A– specific assessment rates with which to 570–983; Certification of No Sales by Shenzhen comments are filed, and all rebuttal assess whether the per-unit assessment Kehuaxing Industrial Ltd.’’ (June 24, 2015). comments must be limited to comments rate is de minimis. We will instruct CBP 6 See Non-Market Economy Antidumping raised in the case briefs.11 Proceedings: Assessment of Antidumping Duties, 76 to assess antidumping duties on all FR 65694, 65694–95 (October 24, 2011) (NME AD appropriate entries covered by this Assessment) and the ‘‘Assessment Rates’’ section, 8 The PRC-wide rate determined in the review when the importer-specific ad below. investigation was 76.53 percent. See Drawn Stainless Steel Sinks from the People’s Republic of valorem assessment rate calculated in 7 See Preliminary Decision Memorandum. the final results of this review is not Pursuant to the Department’s change in practice, China: Amended Final Determination of Sales at the Department no longer considers the NME entity Less Than Fair Value and Antidumping Duty Order, zero or de minimis. Where either as an exporter conditionally subject to 78 FR 21592 (April 11, 2013). This rate was Dongyuan’s ad valorem weighted- administrative reviews. See Antidumping adjusted for export subsidies and estimated average dumping margin is zero or de Proceedings: Announcement of Change in domestic subsidy pass through to determine the Department Practice for Respondent Selection in cash deposit rate (76.45 percent) collected for 12 Antidumping Duty Proceedings and Conditional companies in the PRC-wide entity. See explanation See 19 CFR 351.310(c). Review of the Nonmarket Economy Entity in NME in Drawn Stainless Steel Sinks From the People’s 13 See 19 CFR 351.310(d). Antidumping Duty Proceedings, 78 FR 65963, Republic of China: Investigation, Final 14 See 19 CFR 351.212(b)(1). 65970 (November 4, 2013). Under this practice, the Determination, 78 FR 13019 (February 26, 2013). 15 In these preliminary results, the Department NME entity will not be under review unless a party 9 See Stainless Steel Bar From India: Final Results applied the assessment rate calculation method specifically requests, or the Department self- of the Antidumping Duty Administrative Review, 77 adopted in Antidumping Proceedings: Calculation initiates, a review of the entity. Because no party FR 39467 (July 3, 2012) and accompanying Issues of the Weighted-Average Dumping Margin and requested a review of the entity, the entity is not and Decision Memorandum at 12. Assessment Rate in Certain Antidumping under review and the entity’s rate is not subject to 10 See 19 CFR 351.309(c). Proceedings: Final Modification, 77 FR 8101 change. 11 See 19 CFR 351.309(d). (February 14, 2012).

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minimis, or an importer-(or customer-) proceeding, the cash deposit rate will 2. Results of the Differential Pricing specific ad valorem assessment rate is continue to be the existing exporter- Analysis zero or de minimis,16 we will instruct specific rate; (3) for all PRC exporters of 3. Export Price CBP to liquidate the appropriate entries subject merchandise that have not been 4. VAT without regard to antidumping duties. 5. Normal Value found to be entitled to a separate rate, H. Factor Valuation Methodology For Feidong and Ningbo Afa, the the cash deposit rate will be the rate for I. Adjustment Under Section 777A(f) of the respondents which were not selected for the PRC-wide entity, which is 76.45 Act individual examination in this percent; and (4) for all non-PRC J. Currency Conversion administrative review and which exporters of subject merchandise which V. Conclusion qualified for a separate rate, the have not received their own rate, the [FR Doc. 2016–11249 Filed 5–11–16; 8:45 am] assessment rate will be equal to the rate cash deposit rate will be the rate BILLING CODE 3510–DS–P calculated for the mandatory respondent applicable to the PRC exporter(s) that in this review (i.e., 1.65 percent).17 supplied that non-PRC exporter. These For the final results, if we continue to deposit requirements, when imposed, DEPARTMENT OF COMMERCE treat the non-responding mandatory shall remain in effect until further respondents B&R Industries, Newecan, notice. International Trade Administration and Superte, as part of the PRC-wide entity, we will instruct CBP to apply an Notification to Importers [A–570–893] ad valorem assessment rate of 76.45 This notice also serves as a Certain Frozen Warmwater Shrimp percent to all entries of subject preliminary reminder to importers of From the People’s Republic of China: merchandise during the POR which their responsibility under 19 CFR were produced and/or exported by those Rescission of Antidumping Duty companies. 351.402(f) to file a certificate regarding Administrative Review; 2015–2016 the reimbursement of antidumping and/ The Department announced a AGENCY: Enforcement and Compliance, refinement to its assessment practice in or countervailing duties prior to liquidation of the relevant entries International Trade Administration, NME cases. Pursuant to this refinement Department of Commerce. in practice, for entries that were not during this review period. Failure to SUMMARY: The Department of Commerce reported in the U.S. sales database comply with this requirement could (‘‘the Department’’) is rescinding the submitted by the company individually result in the Secretary’s presumption examined during this review, the that reimbursement of antidumping administrative review of the Department will instruct CBP to and/or countervailing duties occurred antidumping duty order on certain liquidate such entries at the PRC-wide and the subsequent assessment of frozen warmwater shrimp (‘‘shrimp’’) rate. In addition, if we continue to find double antidumping duties. from the People’s Republic of China that Kehuaxing had no shipments of the We are issuing and publishing these (‘‘PRC’’) for the period February 1, 2015 subject merchandise, any suspended preliminary results of review in through January 31, 2016. entries of subject merchandise from accordance with sections 751(a)(l) and DATES: Effective Date: May 12, 2016. Kehuaxing will be liquidated at the 777(i)(l) of the Act and 19 CFR 351.213. FOR FURTHER INFORMATION CONTACT: 18 PRC-wide rate. Dated: May 5, 2016. Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, Cash Deposit Requirements Paul Piquado, International Trade Administration, The following cash deposit Assistant Secretary for Enforcement and Department of Commerce, 14th Street Compliance. requirements will be effective upon and Constitution Avenue NW., publication of the final results of this Appendix—List of Topics Discussed in Washington, DC 20230; telephone: (202) administrative review for all shipments the Preliminary Decision Memorandum 482–2593. of the subject merchandise from the PRC SUPPLEMENTARY INFORMATION: entered, or withdrawn from warehouse, I. Summary for consumption on or after the II. Background Background III. Scope of the Order publication date, as provided for by IV. Discussion of the Methodology On April 7, 2016, based on a timely section 751(a)(2)(C) of the Act: (1) For A. Preliminary Determination of No request for review on behalf of the Ad the companies listed above that have a Shipments Hoc Shrimp Trade Action Committee separate rate, the cash deposit rate will B. Non-Market Economy Country Status (‘‘Petitioner’’) 1 and the American be that rate established in the final C. Separate Rates Determination Shrimp Processors Association results of this review (except, if the rate 1. Absence of De Jure Control (‘‘Domestic Processors’’),2 the is zero or de minimis, then a cash 2. Absence of De Facto Control Department published in the Federal deposit rate of zero will be established 3. Separate Rate for Non-Selected Register a notice of initiation of an for that company); (2) for previously Companies administrative review of the investigated or reviewed PRC and non- D. Companies Preliminarily Considered Part of the PRC-Wide Entity antidumping duty order on shrimp from PRC exporters that received a separate 1. B&R Industries, Newecan, and Superte rate in a prior segment of this 2. Shunde Foodstuffs, Franke, Grand Hill, 1 See Letter to the Secretary of Commerce from Heng’s Industries, Hongmao, J&C the Ad Hoc Shrimp Trade Action Committee 16 See 19 CFR 351.106(c)(2). Industries, MingHao, Ningbo Oulin, and (‘‘AHSTAC’’) ‘‘Certain Frozen Warmwater Shrimp 17 See Drawn Stainless Steel Sinks from the Zoje from the People’s Republic of China: Request for People’s Republic of China: Preliminary Results of E. Surrogate Country Administrative Reviews’’ (February 24, 2016). Antidumping Duty Administrative Review, 80 FR 1. Economic Comparability 2 See Letter to the Secretary of Commerce from 26227, 26228 (May 7, 2015); unchanged in Drawn 2. Significant Producer of Comparable the American Shrimp Processors Association Stainless Steel Sinks From the People’s Republic of Merchandise (‘‘ASPA’’) ‘‘Administrative Review of the China: Final Results of the Antidumping Duty Antidumping Duty Order Covering Frozen Administrative Review; 2012–2014, 80 FR 69644 3. Data Availability Warmwater Shrimp from the People’s Republic of (November 10, 2015). F. Date of Sale China (POR 11: 02/01/15–01/31/16): American 18 For a full discussion of this practice, see NME G. Comparisons to Normal Value Shrimp Processors Association’s Request for an AD Assessment. 1. Determination of Comparison Method Administrative Review’’ (February 29, 2016).

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the PRC covering the period February 1, liquidation of the relevant entries China (PRC).1 The notice of initiation 2015, through January 31, 2016.3 The during this review period. Failure to stated that the Department, in review covers 74 companies. On April comply with this requirement could accordance with section 733(b)(1)(A) of 18, 2016, and April 25, 2016, Petitioner result in the Department’s presumption the Tariff Act of 1930, as amended (the and Domestic Processors withdrew their that reimbursement of the antidumping Act), and 19 CFR 351.205(b)(1), would requests for an administrative review on duties occurred and the subsequent issue its preliminary determination for all companies listed in the Initiation assessment of doubled antidumping this investigation, unless postponed, no Notice.4 No other party requested a duties. later than 140 days after the date of the review of these companies or any other This notice also serves as a final initiation. As explained in the exporters of subject merchandise. reminder to parties subject to memorandum from the Acting Assistant Secretary for Enforcement and Rescission of Review administrative protective order (‘‘APO’’) of their responsibility concerning the Compliance, the Department has Pursuant to 19 CFR 351.213(d)(1), the return or destruction of proprietary exercised its discretion to toll all Department will rescind an information disclosed under APO in administrative deadlines due to the administrative review, in whole or in accordance with 19 CFR 351.305(a)(3), recent closure of the Federal part, if the party that requested the which continues to govern business Government.2 All deadlines in this review withdraws its request within 90 proprietary information in this segment investigation have been extended by days of the publication of the notice of of the proceeding. Timely written four business days.3 The revised initiation of the requested review. In notification of the return or destruction deadline for the preliminary this case, Petitioner and Domestic of APO materials, or conversion to determination of this antidumping duty Processors timely withdrew their 4 judicial protective order, is hereby investigation is currently May 31, 2016. request by the 90-day deadline, and no requested. Failure to comply with the other party requested an administrative Period of Investigation regulations and terms of an APO is a review of the antidumping duty order. The period of investigation is April 1, violation which is subject to sanction. As a result, pursuant to 19 CFR 2015, through September 30, 2015. 351.213(d)(1), we are rescinding the This notice is issued and published in Postponement of Preliminary administrative review of the accordance with sections 751(a)(1) and Determination antidumping order on shrimp from the 777(i)(1) of the Tariff Act of 1930, as PRC for the period February 1, 2015, amended, and 19 CFR 351.213(d)(4). Section 733(c)(1)(A) of the Act through January 31, 2016, in its entirety. Dated: May 4, 2016. permits the Department to postpone the time limit for the preliminary Assessment Christian Marsh, Deputy Assistant Secretary for Antidumping determination if it receives a timely The Department will instruct U.S. and Countervailing Duty Operations. request from the petitioner for Customs and Border Protection (‘‘CBP’’) [FR Doc. 2016–11239 Filed 5–11–16; 8:45 am] postponement. The Department may to assess antidumping duties on all postpone the preliminary determination BILLING CODE 3510–DS–P appropriate entries. Because the under section 733(c)(1) of the Act no Department is rescinding this later than 190 days after the date on administrative review in its entirety, the DEPARTMENT OF COMMERCE which the administering authority entries to which this administrative initiates an investigation. review pertained shall be assessed International Trade Administration On May 2, 2016, Whirlpool antidumping duties at rates equal to the Corporation (the petitioner), made a timely request pursuant to section cash deposit of estimated antidumping [A–570–033] duties required at the time of entry, or 733(c)(1) of the Act, 19 U.S.C. 1673(c)(1) withdrawal from warehouse, for Large Residential Washers From the and 19 CFR 351.205(e) for a 50-day consumption, in accordance with 19 People’s Republic of China: postponement of the preliminary CFR 351.212(c)(1)(i). The Department Postponement of Preliminary determination in this investigation.5 intends to issue appropriate assessment Determination of Antidumping Duty The petitioner stated that a instructions to CBP 15 days after the Investigation postponement is necessary given the publication of this notice in the Federal unprecedented number of factors of Register, if appropriate. AGENCY: Enforcement and Compliance, production that need to be accurately International Trade Administration, classified and valued, and the amount of Notifications Department of Commerce. This notice serves as a final reminder 1 DATES: Effective Date: May 12, 2016. See Large Residential Washers From the to importers of their responsibility People’s Republic of China: Initiation of Less-Than- under 19 CFR 351.402(f)(2) to file a FOR FURTHER INFORMATION CONTACT: Fair-Value Investigation, 81 FR 1398 (January 12, David Goldberger at (202) 482–4136 or 2016). certificate regarding the reimbursement 2 See Memorandum to the Record from Ron of antidumping duties prior to Brian Smith at (202) 482–1766, Office II, Lorentzen, Acting A/S for Enforcement and AD/CVD Operations, Enforcement and Compliance, ‘‘Tolling of Administrative Deadlines 3 See Initiation of Antidumping and Compliance, U.S. Department of As a Result of the Government Closure During Countervailing Duty Administrative Reviews, 81 FR Commerce, 14th Street and Constitution Snowstorm Jonas’’ (January 27, 2016). 3 20324 (April 7, 2016) (‘‘Initiation Notice’’). Avenue NW., Washington, DC 20230. Id. 4 See Letter to the Secretary of Commerce from 4 Where the deadline falls on a weekend/holiday, Petitioner ‘‘Certain Frozen Warmwater Shrimp from SUPPLEMENTARY INFORMATION: the appropriate date is the next business day. the People’s Republic of China: Domestic Because the deadline for the preliminary Producers’ Withdrawal of Review Requests’’ (April Background determination of this antidumping duty 18, 2016); Letter to the Secretary of Commerce from investigation is Monday, May 30, 2016, a federal Domestic Processors ‘‘Administrative Review of On January 5, 2016, the Department of holiday, the appropriate date is the next business Antidumping Duty Order Covering Certain Frozen Commerce (the Department) initiated day, Tuesday, May 31, 2016. Warmwater Shrimp From the People’s Republic of the antidumping duty investigation of 5 See Letter from the petitioner, ‘‘Large China: Withdrawal of Review Request on Behalf of large residential washers (washing Residential Washers from the People’s Republic of the American Shrimp Processors Association’’ China: Petitioner’s Request for Extension of the (April 25, 2016). machines) from the People’s Republic of Preliminary Determination’’ (May 2, 2016).

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time that will be needed for the ADDRESSES: The meeting will be held at Day 2—Thursday, June 2, 2016; 8:30 Department to conduct a complete and the Hilton Westshore Tampa Airport a.m.–5 p.m. thorough analysis. The petitioner Hotel, 2225 N. Lois Avenue, Tampa, FL Standing and Reef Fish SSC Session further stated that a postponement is 33607; telephone: (813) 877–6688. (continued) needed to allow time to address the Council address: Gulf of Mexico various deficiencies in the questionnaire Fishery Management Council, 2203 N. XIII. Review and Approval of Terms of responses submitted in this case. The Lois Avenue, Suite 1100, Tampa, FL Reference petitioner submitted its request more 33607; telephone: (813) 348–1630. a. Gag update assessment than 25 days before the scheduled date FOR FURTHER INFORMATION CONTACT: b. Greater amberjack update of the preliminary determination.6 Steven Atran, Senior Fishery Biologist, assessment For the reasons stated above, and Gulf of Mexico Fishery Management XIV. Review of Research and because there are no compelling reasons Council; [email protected], Operational Cycles for SEDAR to deny the petitioner’s request, the telephone: (813) 348–1630. Stock Assessments XV. Review of SEDAR Assessment Department is postponing the SUPPLEMENTARY INFORMATION: preliminary determination in this Schedule investigation in accordance with section Agenda a. Review of SEDAR schedule as of 733(c)(1)(A) of the Act and 19 CFR April 2016 Day 1—Wednesday, June 1, 2016; 9 b. Council recommendations for 2019 351.205(b)(2) and (e) by 50 days until a.m.–5 p.m. July 19, 2016.7 stock assessments The deadline for the final I. Introductions and Adoption of XVI. Decision Tool for Gray Triggerfish determination will continue to be 75 Agenda Bag Limits, Size Limits, and Closed days after the date of the preliminary II. Selection of SSC representative at Season Analyses determination, unless extended. June, 2016 Council meeting XVII. SEDAR 45 Vermilion Snapper This notice is issued and published standard assessment Standing and Socioeconomic SSC XVIII. Reevaluation of SSC pursuant to section 733(c)(2) of the Act Session and 19 CFR 351.205(f)(1). Recommendation for Hogfish III. Socioeconomic considerations for Equilibrium ABC Dated: May 5, 2016. sector management XIX. OY Exceeding MSY in Some Paul Piquado, a. Reef Fish Amendment 41 (Red Scenarios Assistant Secretary for Enforcement and Snapper Charter for Hire) Compliance. Day 3—Friday, June 2, 2016; 8:30 a.m.– b. Reef Fish Amendment 42 (Reef Fish 12 noon [FR Doc. 2016–11244 Filed 5–11–16; 8:45 am] Headboat Management) BILLING CODE 3510–DS–P IV. Grouper/Tilefish IFQ 5-year Review Standing and Reef Fish Session (Market Power Analysis) (continued) XX. Review of Draft Amendment 44– DEPARTMENT OF COMMERCE Standing, Socioeconomic, and Shrimp SSC Session MSST and MSY Proxies for Reef National Oceanic and Atmospheric Fish Stocks V. Approval of March 8, 2016 Standing XXI. Reef Fish Other Business Administration and Special Shrimp SSC minutes — Meeting Adjourns — RIN 0648–XE617 VI. Shrimp Amendment 17B (OY, MSY, number of permits, permit pool, The Agenda is subject to change, and Gulf of Mexico Fishery Management transit provisions) the latest version along with other Council; Public Meeting a. Review of amendment meeting materials will be posted on the b. Aggregate MSY/OY Working Group Council’s file server. To access the file AGENCY: National Marine Fisheries summary server, the URL is https:// Service (NMFS), National Oceanic and public.gulfcouncil.org:5001/webman/ Atmospheric Administration (NOAA), Standing, Socioeconomic, and Spiny index.cgi, or go to the Council’s Web Commerce. Lobster SSC Session site and click on the FTP link in the ACTION: Notice of a public meeting. VII. Approval of spiny lobster portion of lower left of the Council Web site March 10, 2015 Standing, Special (http://www.gulfcouncil.org). The SUMMARY: The Gulf of Mexico Fishery Shrimp, and Special Spiny Lobster username and password are both Management Council will hold a two SSC minutes ‘‘gulfguest.’’ Click on the ‘‘Library and a half day meeting of its Standing, VIII. Review of 2014/2015 and 2015/ Folder’’, then scroll down to ‘‘SSC Socioeconomic, Shrimp, Spiny Lobster, 2016 (preliminary) Spiny Lobster meeting-2016–06.’’ and Reef Fish Scientific and Statistical Landings The meeting will be webcast over the Committees (SSC). a. Spiny Lobster Review Panel internet. A link to the webcast will be DATES: The meeting will begin at 9 a.m. summary available on the Council’s Web site, on Wednesday, June 1, 2016, and end at b. Spiny Lobster AP summary http://www.gulfcouncil.org. 12 noon on Friday, June 3, 2016. To IX. Other Non-Reef Fish Business Although other non-emergency issues SUPPLEMENTARY not on the agenda may come before the view the agenda, see Standing and Reef Fish SSC Session INFORMATION. Scientific and Statistical Committee for X. Approval of January 5–6, 2016 discussion, in accordance with the 6 See 19 CFR 351.205(e). Standing and Special Reef Fish SSC Magnuson-Stevens Fishery 7 Where the deadline falls on a weekend/holiday, minutes Conservation and Management Act, the appropriate date is the next business day. XI. SSC members serving as Council those issues may not be the subject of Because 190 days after the date on which the state designees formal action during this meeting. administering authority initiated this investigation is Wednesday, July 13, 2016, and all deadlines in XII. Discussion of Methods to Address Actions of the Scientific and Statistical this investigation were extended by four business Recreational Red Snapper ACL Committee will be restricted to those days, the appropriate date is Tuesday, July 19, 2016. Underharvests issues specifically identified in the

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agenda and any issues arising after SUPPLEMENTARY INFORMATION: The the goal was to shine a light on unfair publication of this notice that require Council’s MSB Monitoring Committee and discriminatory practices in the emergency action under Section 305(c) will meet to develop recommendations financial system. The legislation of the Magnuson-Stevens Fishery for future MSB specifications. There specifically tasked the Office of Fair Conservation and Management Act, will be time for public questions and Lending and Equal Opportunity with provided the public has been notified of comments. The Council utilizes the this critical obligation, but our the Council’s intent to take action to Monitoring Committee commitment to finding and eliminating address the emergency. recommendations at each June Council these practices extends throughout the meeting when setting the subsequent Bureau. Indeed, ensuring fair and Special Accommodations years’ MSB specifications. nondiscriminatory access to credit goes This meeting is physically accessible to the core of the Bureau’s mission: to people with disabilities. Requests for Special Accommodations Protecting consumers and promoting sign language interpretation or other This meeting is physically accessible openness in America’s financial auxiliary aids should be directed to to people with disabilities. Requests for markets. Kathy Pereira at the Gulf Council Office sign language interpretation or other The past year has been especially (see ADDRESSES), at least 5 working days auxiliary aid should be directed to M. productive for the Office of Fair prior to the meeting. Jan Saunders, (302) 526–5251, at least 5 Lending. In the mortgage market, they teamed up with the Department of Authority: 16 U.S.C. 1801 et seq. days prior to the meeting date. Dated: May 9, 2016. Justice to resolve the largest redlining Dated: May 9, 2016. case in history against Hudson City Jeffrey N. Lonergan, Jeffrey N. Lonergan, Savings Bank (since acquired by M&T Acting Deputy Director, Office of Sustainable Acting Deputy Director, Office of Sustainable Bank), which will pay nearly $33 Fisheries, National Marine Fisheries Service. Fisheries, National Marine Fisheries Service. million in direct loan subsidies, funding [FR Doc. 2016–11198 Filed 5–11–16; 8:45 am] [FR Doc. 2016–11207 Filed 5–11–16; 8:45 am] for community programs and outreach, BILLING CODE 3510–22–P BILLING CODE 3510–22–P and a civil penalty. In that case, which arose out of a fair lending supervisory review at Hudson City, the Bureau DEPARTMENT OF COMMERCE BUREAU OF CONSUMER FINANCIAL found that Hudson City provided PROTECTION unequal access to credit by structuring National Oceanic and Atmospheric its business to avoid and thus Administration Fair Lending Report of the Consumer discourage access to mortgages for Financial Protection Bureau, April 2016 residents in majority-Black-and- RIN 0648–XE618 AGENCY: Bureau of Consumer Financial Hispanic neighborhoods 1 in New York, Mid-Atlantic Fishery Management Protection. New Jersey, Connecticut, and Council (MAFMC); Public Meeting ACTION: Fair Lending Report of the Pennsylvania. The Office of Fair Consumer Financial Protection Bureau. Lending also resolved a significant AGENCY: National Marine Fisheries discrimination case involving Provident Service (NMFS), National Oceanic and SUMMARY: The Bureau of Consumer Funding Associates based on our Atmospheric Administration (NOAA), Financial Protection (CFPB or Bureau) is finding that over 14,000 African- Commerce. issuing its fourth Fair Lending Report of American and Hispanic borrowers paid ACTION: Notice of public meeting. the Consumer Financial Protection more in mortgage brokers’ fees than did Bureau (Fair Lending Report) to similarly-situated non-Hispanic White SUMMARY: The Mid-Atlantic Fishery Congress. We are committed to ensuring borrowers. The Office also helped revise Management Council’s (Council) fair access to credit and eliminating the Home Mortgage Disclosure Act’s Mackerel-Squid-Butterfish (MSB) discriminatory lending practices. This Regulation C such that mortgage lenders Monitoring Committee will meet via report describes our fair lending will begin collecting a more webinar to develop recommendations activities in prioritization, supervision, comprehensive set of mortgage loan data for future MSB specifications. enforcement, rulemaking, research, starting in 2018, which will allow DATES: The meeting will be held interagency coordination, and outreach regulators, lenders, researchers, and the Tuesday, May 31, 2016, at 1:30 p.m. and for calendar year 2015. public to better pinpoint and address end by 4 p.m. DATES: The Bureau released the April potential discrimination in the mortgage market, among other important goals. ADDRESSES: The meeting will be held 2016 Fair Lending Report on its Web site on April 29, 2016. The Office of Fair Lending also has via webinar with a telephone-only continued to examine and investigate FOR FURTHER INFORMATION CONTACT: connection option: http:// indirect auto lenders for compliance mafmc.adobeconnect.com/ Anita Visser, Policy Advisor to the Director of Fair Lending, Office of Fair with the Equal Credit Opportunity Act. msb2016moncom/. Last year brought two noteworthy Lending and Equal Opportunity, Council address: Mid-Atlantic Fishery results, with prominent consent orders Consumer Financial Protection Bureau, Management Council, 800 N. State St., issued for American Honda Finance 1–855–411–2372. Suite 201, Dover, DE 19901; telephone: Corporation and Fifth Third Bank. In (302) 674–2331. SUPPLEMENTARY INFORMATION: both matters, the Bureau alleged that the FOR FURTHER INFORMATION CONTACT: [1]. Fair Lending Report of the lender’s policy of discretionary dealer Christopher M. Moore, Ph.D. Executive Consumer Financial Protection Bureau, markup resulted in minority borrowers Director, Mid-Atlantic Fishery April 2016 Management Council; telephone: (302) 1 ‘‘Majority-Black-and-Hispanic neighborhoods’’ 526–5255. The Council’s Web site, Message From Richard Cordray, Director or ‘‘majority-Black-and-Hispanic communities’’ of the CFPB means census tracts in which more than 50 percent www.mafmc.org will also have details of the residents are identified in the 2010 U.S. on webinar access and any background When Congress established the Census as either ‘‘Black or African American’’ or materials. Consumer Financial Protection Bureau, ‘‘Hispanic or Latino.’’

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paying more for loans without regard to the continued interest that so many the DOJ and the Bureau, a settlement their creditworthiness. The lenders people have in our fair lending work. administrator mailed $80 million plus agreed to reduce substantially the Sincerely, accrued interest in checks to consumers amount of discretion they permit Richard Cordray harmed by discriminatory auto loan dealers to mark up such loans and to Message from Patrice Alexander Ficklin pricing policies. pay a combined total of $42 million in Director, Office of Fair Lending and Equal While our settlement administration restitution to harmed consumers. Our Opportunity and mortgage and auto work continue to supervisory and enforcement work This past year, 2015, has been one of be priorities for our office, we have remains ongoing, as shown by our tremendous growth and made significant strides in expanding recent similar action against Toyota accomplishment for the CFPB’s Office of our efforts to help consumers in other Motor Credit, and I urge indirect auto Fair Lending and Equal Opportunity. priority markets. These priority markets lenders to carefully consider the terms From enforcement and supervision to include the credit card market, where of these orders as they evaluate outreach and rulemaking, our office is we continue to engage in both compliance in their own lending dedicated to using the tools Congress supervisory and enforcement work programs. provided to achieve our mission: Fair, related to fair lending risks in that One tangible outcome of the Office of equitable, and nondiscriminatory credit market. Fair Lending’s dedication is the money for consumers.2 After the whirlwind of Notably, we also added small they help return to harmed consumers. getting on our feet and ‘‘standing up’’ business lending to our priorities to When an enforcement action is the Bureau, we have continued to address fair lending risks in that market. resolved, typically much more work solidify our presence in now-familiar Small businesses are a backbone of our must be done before consumers see the markets and explored new and emerging nation’s economy and access to credit is benefits. Last year, the Office worked issues in other markets. This is an critical to their operation and growth. with Synchrony Bank (formerly GE exciting new phase in the Bureau’s Unlike large businesses, many small Capital Retail Bank) to complete tenure that promises to make lasting businesses are sole proprietorships payments of over $200 million to improvements in the lives of America’s where the owner’s personal credit—and consumers who were excluded from consumers. potentially that of family and friends— debt relief offers because of their As part of the Office of Fair Lending’s may be on the line.5 With so much at national origin. They also worked with statutory responsibility for oversight stake, and in light of the heightened fair PNC Bank (successor to National City and enforcement of the Equal Credit lending risk acknowledged by the Bank) to complete payments of over $35 Opportunity Act 3 (ECOA) and the enactment of Section 1071 of the Dodd- million to tens of thousands of African- Home Mortgage Disclosure Act 4 Frank Act, we will continue to focus on American and Hispanic borrowers who (HMDA), we carefully prioritize among small business lending in our Fair were charged higher prices on their market areas to best utilize our Lending work going forward. In mortgage loans. Finally, they worked resources. The mortgage and auto addition, the Bureau’s rulemaking with Ally Financial Inc. and Ally Bank markets represent two of the most required by the Dodd-Frank Act’s small to complete payments of over $80 significant consumer experiences with business data collection provision 6 is million to over 300,000 borrowers who credit and weigh heavily in our now in the pre-rule stage.7 We look experienced discrimination in the prioritization process. Homes and cars forward to developing additional pricing of Ally’s auto loans. In addition are typically two of the largest and most subject-matter expertise in this market to money returned to consumers important purchases for consumers, and as we engage in dialogue with through public enforcement actions, we the Bureau is committed to ensuring stakeholders, including industry, achieve additional redress for these transactions are fair and equitable consumer advocates, and other market consumers through the supervisory for all consumers. Our efforts in 2015 experts, conduct further examinations, process. These results demonstrate the have required approximately $108 and gather additional data and Office of Fair Lending’s commitment to million in restitution to consumers information in connection with the bettering the lives of consumers by harmed by discrimination and rulemaking. ensuring fair, nondiscriminatory access additional monetary payments, The Bureau also published its final to credit. including loan subsidies, increased rule implementing Dodd-Frank’s The list of fair lending successes is consumer financial education, and civil amendments to HMDA’s Regulation C. even longer, as this report attests. We money penalties. Our efforts have also HMDA data are integral to the everyday share our work in many ways, including resulted in heightened industry work of our office and others within the guidance through Supervisory awareness and increased consumer Bureau. One of HMDA’s primary Highlights, industry and consumer financial education. This year, all four purposes is identifying potential outreach, and productive discussions of our public enforcement actions discrimination, and many other with policymakers, including members related to these two markets, resulting stakeholders will benefit from improved of Congress. We welcome such dialogue in monetary remediation for harmed data, including other agencies, the because an integral part of the Bureau’s consumers and forward-looking public, consumer groups, researchers, commitment to diversity and inclusion mechanisms to prevent future and industry itself. The final rule is engaging many different voices in a discrimination. Mortgage and auto reflects our practical experience broad discussion of these critical issues. featured prominently in our non-public The pursuit of civil rights has always supervisory work as well. Moreover, in 5 See Office of Advocacy, Small Business January 2016, as a result of a settlement Administration, Frequently Asked Questions required perseverance, and I am proud (March 2014), available at https://www.sba.gov/ of the work my Fair Lending colleagues with Ally Financial Inc. and Ally Bank, sites/default/files/advocacy/FAQ_March_2014_ do to move forward in this important 0.pdf (according to the Small Business area. 2 Dodd-Frank Act, section 1013(c)(2)(A), Public Administration, approximately 72.1% of all Law 111–203, 124 Stat. 1376 (2010) (codified at 12 businesses are sole proprietorships). We are proud of the Bureau’s work in U.S.C. 5493(c)(2)(A)). 6 Dodd-Frank Act, section 1071(a) (codified at 15 2015 and the successes of our Fair 3 15 U.S.C. 1691 et seq. U.S.C. 1691c–2(a)). Lending team. And we are thankful for 4 12 U.S.C. 2801 et seq. 7 80 FR 78055, 78058 (Dec. 15, 2015).

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working with the data, as well as $108 million in remediation and other Æ Credit cards. The Bureau also hundreds of comments from industry, monetary payments.11 continued fair lending supervisory and consumer advocates, civil rights groups, • Supervision and enforcement enforcement work in the credit card and other stakeholders. These changes priorities and activity. The Bureau’s market. We have focused in particular will undoubtedly enhance our work as risk-based prioritization process allows on the quality of fair lending we are able to analyze and act on this the Office of Fair Lending to focus our compliance management systems and more robust information. supervisory and enforcement efforts on on fair lending risks in underwriting, markets or products that represent the The Dodd-Frank Act mandated the line assignment, and servicing, greatest risk for consumers. including the treatment of consumers creation of the CFPB’s Office of Fair Æ Mortgage lending. Mortgage lending Lending and Equal Opportunity and residing in Puerto Rico or who indicate continues to be a key priority for the that they prefer to speak in Spanish. Our charged it with ensuring fair, equitable, Office of Fair Lending for both and nondiscriminatory access to credit work in this highly-concentrated market supervision and enforcement, with a has covered institutions responsible for to consumers; coordinating our fair focus on HMDA data integrity and lending efforts with Federal and State more than 75% of outstanding credit potential fair lending risks in the areas card balances in the United States.15 agencies and regulators; working with of redlining, underwriting, and pricing. Æ Other product areas. The Bureau private industry, fair lending, civil In 2015, the Bureau resolved two public has focused supervision and rights, consumer and community enforcement actions involving mortgage enforcement work in other markets as advocates to promote fair lending lending. Through 2015, our mortgage well. For example, this year we began compliance and education; and origination work has covered targeted ECOA reviews of small- annually reporting to Congress on our institutions responsible for close to half business lending, focusing in particular efforts. of the transactions reported pursuant to on the quality of fair lending I am proud to say that the Office HMDA (and more than 60% of the compliance management systems and continues to fulfill our Dodd-Frank transactions reported by institutions on fair lending risks in underwriting, mandate and looks forward to subject to the CFPB’s supervision and pricing, and redlining. We remain 12 continuing to work together with all enforcement authority). Moreover, our committed to assessing and evaluating stakeholders in protecting America’s supervisory work on mortgage servicing fair lending risk in all credit markets consumers. To that end, I am excited to has included use of the ECOA Baseline under the Bureau’s jurisdiction. share our progress with this, our fourth, Review Modules, which help us to • Rulemaking. In October 2015, the Fair Lending Report.8 identify potential fair lending risk in Bureau published a final rule to amend mortgage servicing and inform our Regulation C, the regulation that Sincerely, prioritization of mortgage servicers. Æ implements HMDA, to require covered Patrice Alexander Ficklin Indirect auto lending. In 2015, the lenders to report additional data Executive Summary Bureau continued its work in overseeing elements, among other changes.16 In and enforcing compliance with ECOA in The Dodd-Frank Wall Street Reform January 2016, in response to ongoing indirect auto lending through both conversations with industry about and Consumer Protection Act (Dodd- supervisory and enforcement activity, Frank or Dodd-Frank Act) 9 established compliance with Regulation C, the including monitoring compliance with Bureau published a Request for the Bureau as the Nation’s first federal our previous supervisory and agency with a mission focused solely on Information (RFI) on the Bureau’s enforcement actions. Our auto finance HMDA data resubmission guidelines.17 consumer financial protection and 13 targeted ECOA reviews generally have • Guidance. In May 2015, the Bureau making consumer financial markets included an examination of three areas: issued a compliance bulletin on the work for all Americans. Dodd-Frank Credit approvals and denials, interest Section 8 Housing Choice Voucher established the Office of Fair Lending rates quoted by the lender to the dealer (HCV) Homeownership Program.18 The and Equal Opportunity within the (the ‘‘buy rates’’), and any discretionary Bulletin reminds creditors of their CFPB, and charged it with ‘‘providing markup or adjustments to the buy rate. obligations under ECOA 19 and its oversight and enforcement of Federal In 2015, the Bureau resolved two public implementing regulation, Regulation laws intended to ensure the fair, enforcement actions involving B,20 to provide non-discriminatory equitable, and nondiscriminatory access discriminatory pricing and access to credit for mortgage applicants to credit for both individuals and compensation structures in indirect auto by considering income from the Section communities.’’ 10 lending. Our indirect auto work has The Bureau and the Office of Fair covered more than 60% of the auto loan 15 CFPB analysis of 3Q 2015 call reports. 14 Lending and Equal Opportunity (the market share by volume. 16 See Home Mortgage Disclosure Act (Regulation Office of Fair Lending) have taken C), 80 FR 66128 (Oct. 28, 2015) (codified at 12 important strides over the last year in 11 Figures represent estimates of monetary relief U.S.C. 1003 et. seq.), available at https:// for consumers ordered by the Bureau as a result of www.gpo.gov/fdsys/pkg/FR-2015-10-28/pdf/2015- our efforts to protect consumers from supervisory or enforcement actions on solely fair 26607.pdf. credit discrimination and broaden lending matters in 2015, as well as other monetary 17 Consumer Financial Protection Bureau, access to credit, as we identify new and payments such as loan subsidies, increased Request for Information Regarding Home Mortgage consumer financial education, and civil money Disclosure Act Resubmission Guidelines 2015–0058 emerging fair lending risks and monitor penalties. The Bureau also ordered institutions to (Jan. 12, 2016), available at http:// institutions for compliance. In 2015, our provide non-monetary relief to consumers. files.consumerfinance.gov/f/201601_cfpb_request- fair lending supervisory and public 12 CFPB analysis of HMDA data for 2015. for-information-regarding-home-mortgage- enforcement actions directed 13 ECOA targeted reviews focus on a specific line disclosure-act-resubmission.pdf. institutions to provide approximately of business, such as mortgages, credit cards, or auto 18 Consumer Financial Protection Bureau, Section finance and typically include statistical analysis 8 Housing Choice Voucher Homeownership and, in some cases, loan file reviews in order to Program Bulletin 2015–02 (May 11, 2015), available 8 See Dodd-Frank Act section 1013(c)(2)(D) evaluate an institution’s compliance with ECOA at http://files.consumerfinance.gov/f/201505_cfpb_ (codified at 12 U.S.C. 5493(c)(2)(D)). and Regulation B within the specific business line bulletin-section-8-housing-choice-voucher- 9 Public Law 111–203, 124 Stat. 1376 (2010). selected. homeownership-program.pdf. 10 Dodd-Frank Act, section 1013(c)(2)(A) (codified 14 CFPB analysis of 2015 AutoCount data from 19 15 U.S.C. 1691 et seq. at 12 U.S.C. 5493(c)(2)(A)). Experian Automotive. 20 12 CFR 1002 et seq.

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8 HCV Homeownership Program. In advocacy groups, whistleblowers, and 1.1.3 Quality of Compliance addition, throughout the year, the Office government agencies; supervisory and Management Systems of Fair Lending provided guidance and enforcement history; quality of lenders’ One critical piece of information the information on market trends through compliance management systems; Bureau obtains through our supervisory Supervisory Highlights. results from data analysis; and market • work is the quality of an institution’s Outreach to industry, advocates, insights. The Office of Fair Lending fair lending compliance management consumers, and other stakeholders. The integrates all of this information into the system, which is a key factor considered Bureau continues to initiate and fair lending risk-based prioritization in the fair lending prioritization process. encourage industry and consumer process, which is incorporated into the The Bureau has previously identified engagement opportunities to discuss fair Bureau’s larger risk-based prioritization common features of a well-developed lending compliance and access to credit fair lending compliance management issues, including through speeches, process, allowing the Bureau to system,23 though we recognize that the presentations, blog posts, webinars, efficiently allocate its fair lending appropriate scope of an institution’s fair rulemaking, public comments, and resources to areas of greatest risk to lending compliance management system communication with Members of consumers. We then coordinate with will vary based on its size, complexity, Congress. other regulators so that our focus and • Interagency coordination and efforts may inform their work and vice and risk profile. Many CFPB-supervised institutions collaboration. The Bureau continues to versa. coordinate with the Federal Financial face similar fair lending risks, but they 1.1.1 Complaints and Tips Institutions Examination Council may differ in how they manage those (FFIEC) agencies,21 as well as the risks, based on their size, complexity, The CFPB uses input from a variety of and risk profile. A key consideration is Department of Justice (DOJ), the Federal external and internal stakeholders to Trade Commission (FTC), and the that, the lower the quality of an inform its fair lending prioritization institution’s fair lending compliance Department of Housing and Urban process. We consider fair lending Development (HUD), as we each play a management system, the less likely that complaints handled by the Bureau’s the institution will identify and role in enforcing our nation’s fair Office of Consumer Response and tips lending laws and regulations. In 2015, effectively address fair lending risks. As brought to the Office of Fair Lending’s the Office of Fair Lending entered into a result, a lower quality fair lending attention by advocacy groups, a Memorandum of Understanding with compliance management system whistleblowers, and other government HUD to formalize information-sharing generally indicates a higher fair lending between our agencies and maximize agencies (at the local, state, and federal risk to consumers. levels). As part of the prioritization opportunities for joint investigations, 1.1.4 Data Analysis process the Office of Fair Lending also when possible. The Bureau’s fair lending This report generally covers the considers public and private fair prioritization process is also driven by Bureau’s fair lending work during lending litigation. quantitative data analysis that evaluates calendar year 2015. 1.1.2 Supervisory and Enforcement developments and trends at the 1. Fair Lending Prioritization History institution and market levels. For example, in the housing finance 1.1 Risk-Based Prioritization: A Data- The Bureau considers information Driven Approach To Prioritizing Areas marketplace, HMDA data allow gathered from prior fair lending work of regulators to assess a specific of Potential Fair Lending Harm to the Bureau and other regulators, Consumers institution’s risk as well as risk across including any supervisory or the market in order to identify those To use the CFPB’s fair lending enforcement actions. At the institution institutions or segments that appear to research, supervision, and enforcement level, the Bureau considers results from present heightened fair lending risk to resources most efficiently and past reviews, including information the consumers. Such analyses can be effectively, the Office of Fair Lending, Bureau has gathered about the fair particularly useful in identifying those working with other offices in the lending risk(s) presented by a lender’s lenders that appear to deviate Bureau, developed a fair lending risk- policies, procedures, practices, or significantly from their peers in, for based prioritization approach that business model; the extent and nature of example, the extent to which they assesses and determines how best to any violations previously cited; and the provide access to credit in communities address areas of potential fair lending institution’s remediation efforts. of color. harm to consumers in the entities, Additionally, the Bureau considers self- 1.1.5 Market Insights products, and markets under our identified issues and whether the jurisdiction. institution took appropriate corrective The Office of Fair Lending works The Bureau considers both qualitative action when it identified those issues. closely with all of the Bureau’s markets and quantitative information at the We also closely monitor institutions’ offices, which monitor consumer institution, product, and market levels compliance with orders arising from financial markets to identify emerging to determine where potential fair previous enforcement actions. Finally, developments and trends. These offices lending harm to consumers may be monitor key consumer financial occurring. This information includes: we coordinate with other regulators to share and consider the results of our products and services, including Consumer complaints; tips from mortgages, credit cards, auto lending, respective fair lending efforts.22 consumer reporting, installment 21 The FFIEC member agencies are the Board of lending, student lending, and payday Governors of the Federal Reserve System (FRB), the 22 Other regulators may take into account the Federal Deposit Insurance Corporation (FDIC), the Bureau’s fair lending findings in their evaluations lending. The Bureau uses market National Credit Union Administration (NCUA), the of lender compliance with the Fair Housing Act, Office of the Comptroller of the Currency (OCC), performance under the Community Reinvestment 23 See Fair Lending Report of the Consumer and the Consumer Financial Protection Bureau Act, or in conjunction with the review of merger/ Financial Protection Bureau 13-14 (Apr. 2014), (CFPB). The State Liaison Committee was added to acquisition applications and other similar available at http://files.consumerfinance.gov/f/ FFIEC in 2006 as a voting member. applications. 201404_cfpb_report_fair-lending.pdf.

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intelligence and the trends identified by of consumer harm involved; whether potential ECOA violations to the Justice our markets offices to provide insight the risk appears to be isolated or Department. into the markets we oversee and to widespread within a market; whether 2.1 Fair Lending Supervisory identify fair lending risks in a given the risk was self-identified and/or self- Observations market that may require further study or disclosed to the Bureau; and the nature attention. For example, our work with and extent of an institution’s Although the Bureau’s supervisory the Office of Installment Lending and remediation plans. Based on these and process is confidential, the Bureau Collections Markets has assisted in our other factors, the Office of Fair Lending publishes regular reports called understanding of indirect auto lenders’ may decide to initiate supervisory or Supervisory Highlights, which provide business models and pricing policies. enforcement activity, conduct information on supervisory trends the Information on fair lending risks in a additional research or ongoing Bureau observes without identifying market is then incorporated into our monitoring of particular issues or specific entities. The Bureau may also risk-based prioritization process to institutions, issue guidance, leverage draw on its supervisory experience to publish compliance bulletins in order to determine the level of attention needed outreach events, or engage in other remind the institutions that we in a market and our focus within that activity within the Bureau’s authority. supervise of their legal obligations. market. Fair Lending takes account of Industry participants can use this Based on our evaluation of the responsible conduct as set forth in CFPB information to inform and assist in information and data gathered from the Bulletin 2013–06, Responsible Business sources above, this year we identified complying with ECOA and HMDA. Conduct: Self-Policing, Self-Reporting, Throughout the year, the Office of Fair mortgage lending (including both Remediation, and Cooperation.25 origination and servicing), auto finance, Lending, in coordination with other and credit cards as priority markets for 2. Fair Lending Supervision offices within the Division of our fair lending supervision and Supervision, Enforcement and Fair enforcement work. We also identified The CFPB’s Fair Lending Supervision Lending, engages in outreach to provide small business lending as a priority program assesses compliance with information on trends from the Bureau’s market in connection with the Bureau’s Federal consumer financial laws and supervisory experience as it relates to exploration of the issues that will need regulations at banks and nonbanks over fair lending risk. which the Bureau has supervisory to be addressed in the rulemaking 2.1.1 Adverse Action Notice authority. Supervision activities range required under Section 1071 of the Deficiencies Dodd-Frank Act, which amended ECOA from assessments of institutions’ fair to require financial institutions to lending compliance management Regulation B requires a creditor to notify an applicant of an adverse action collect and report data on lending to systems to in-depth reviews of products on the application taken within 30 days women-owned, minority-owned, and or activities that may pose heightened after receiving a completed small businesses.24 We remain fair lending risks to consumers. As part application.27 The notice must be in committed to assessing and evaluating of its Fair Lending Supervision program, writing and contain a statement of the fair lending risk in all credit markets the Bureau continues to conduct three action taken; the name and address of under the Bureau’s authority. types of fair lending reviews at Bureau- supervised institutions: ECOA baseline the creditor; a statement describing the 1.1.6 Addressing Areas of Potential reviews, ECOA targeted reviews, and provisions of section 701(a) of ECOA; Fair Lending Harm HMDA data integrity reviews. Our the name and address of the Federal Once fair lending risks are identified supervisory work has focused in the agency that administers compliance and prioritized through our risk-based priority areas of mortgage, auto lending, with respect to the creditor; and either prioritization process, the Office of Fair credit cards, and small business a statement of the specific reasons for Lending considers, as part of its lending. the action taken, or a disclosure of the strategic planning process, how best to applicant’s right to a statement of When the CFPB identifies situations specific reasons within 30 days, if the address those risks and which resources in which fair lending compliance is to dispatch to address the risks. statement is requested within 60 days of inadequate, it directs institutions to 28 The Bureau’s fair lending risk-based the creditor’s notification. establish fair lending compliance prioritization is an ongoing rather than In the Winter 2015 edition of programs commensurate with the size a static process. Even after priorities are Supervisory Highlights, the Office of identified and steps are taken to and complexity of the institution and its Fair Lending described supervisory effectuate those priorities, we continue lines of business. When fair lending observations of instances in which to receive and consider information violations have been identified, the supervised entities failed to provide the relevant to prioritization. At an CFPB may direct institutions to provide requisite information in denial notices institution level, such information may remediation and restitution to as set forth in Regulation B and failed include new whistleblower tips and consumers, and may pursue other to notify an applicant of action taken leads; additional risks identified in appropriate relief. The CFPB also refers within 30 days after receiving the ongoing supervisory and enforcement a matter to the Justice Department when completed application.29 These errors activities; and compliance issues it has reason to believe that a creditor were attributed to weaknesses in the identified and brought to our attention has engaged in a pattern or practice of compliance audit programs and the by institutions themselves. lending discrimination in violation of monitoring and corrective action The Office of Fair Lending considers ECOA.26 The CFPB may also refer other component of the compliance a number of factors in determining how best to address this new information. 25 Consumer Financial Protection Bureau, 27 12 CFR 1002.9(a)(1)(i). Such factors may include the nature and Responsible Business Conduct: Self-Policing, Self- 28 15 U.S.C. 1691 et seq.; 12 CFR 1002.9(a)(2). Reporting, Remediation, and Cooperation 2013–06 29 Consumer Financial Protection Bureau, extent of the fair lending risk; the degree (June 25, 2013), available at http:// Supervisory Highlights Winter 2015 at 12 (March files.consumerfinance.gov/f/201306_cfpb_bulletin_ 11, 2015), available at http:// 24 Dodd-Frank Act section 1071(a) (codified at 15 responsible-conduct.pdf. files.consumerfinance.gov/f/201503_cfpb_ U.S.C. 1691c–2(a)). 26 15 U.S.C. 1691e(g). supervisory-highlights-winter-2015.pdf.

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programs.30 In instances where these assistance or other protected sources of 2.1.3 Consideration of Protected Forms violations have been observed, the income from applying for credit. of Income: Section 8 Housing Choice Bureau has directed the supervised While the general rules governing the Voucher Homeownership Program entities to conduct a review of all prohibition against consideration of The Summer 2015 edition of mortgage loan applications denied protected sources of income include Supervisory Highlights 40 and the CFPB within the relevant time period and take narrow exceptions (e.g., while a creditor bulletin issued on May 11, 2015, appropriate corrective action, including may not consider the fact that an provide guidance to help lenders avoid providing corrected notices to applicant receives public assistance prohibited discrimination against applicants.31 income, the creditor can consider ‘‘[t]he consumers receiving public assistance length of time an applicant will likely 41 2.1.2 Consideration of Protected Forms income. Specifically, the bulletin remain eligible to receive such reminds creditors of their obligations of Income 36 income’’ ), for these exceptions to under ECOA and Regulation B to apply, an institution must analyze each In 2015, the Bureau published provide non-discriminatory access to applicant’s particular situation.37 A guidance in Supervisory Highlights and credit for mortgage applicants by blanket practice of denying any in a compliance bulletin to remind considering income from the Section 8 applicant who relies on public industry stakeholders and consumers of Housing Choice Voucher (HCV) assistance income, or a specific form of ECOA and Regulation B provisions Homeownership Program. public assistance income, without an The Section 8 HCV Homeownership regarding consideration of protected assessment of an applicant’s particular sources of income. ECOA forbids a Program was created to assist low- situation, may violate ECOA and income, first-time homebuyers in creditor from discriminating against any Regulation B. applicant ‘‘because all or part of the purchasing homes. The program is a The relevant supervised entities were component of the Department of applicant’s income derives from any directed by examination staff to identify public assistance program.’’ 32 Housing and Urban Development’s mortgage applicants who were wrongly (HUD) broader Section 8 Housing Regulation B states that a creditor ‘‘shall denied on the basis of their protected not . . . exclude from consideration the Choice Voucher Program, which also income source, as well as prospective includes a rental assistance program.42 income of an applicant . . . because of applicants who were discouraged by the a prohibited basis or because the income These programs are funded by HUD and marketing materials. Supervision also administered by participating local is derived from part-time employment directed that remediation be made to or is an annuity, pension, or other Public Housing Authorities (PHAs). harmed applicants and prospective Through the Section 8 HCV retirement benefit ....’’33 Regulation applicants, including reimbursement of B also states that a ‘‘creditor shall not Homeownership Program, the fees and interest; the opportunity to participating PHA may provide an make any . . . written statement, in reapply; and additional remuneration eligible consumer with a monthly advertising or otherwise, to applicants for any consumers who were improperly housing assistance payment to help pay or prospective applicants that would denied and subsequently lost their for homeownership expenses associated discourage on a prohibited basis a homes. with a housing unit purchased in reasonable person from making or The Winter 2015 edition of accordance with HUD’s regulations.43 In pursuing an application.’’ 34 38 Supervisory Highlights also addition to HUD’s regulations, the PHAs The Winter 2015 edition of emphasized guidance issued in the may also adopt additional requirements, Supervisory Highlights discussed Bureau’s November 18, 2014, bulletin including lender qualifications or terms supervisory observations during recent on avoiding prohibited discrimination of financing.44 examinations of instances in which against consumers receiving Social 39 As stated above, ECOA and Bureau examination staff found one or Security disability income. The Regulation B prohibit creditors from more violations of ECOA and Regulation bulletin reminded lenders that requiring discriminating in any aspect of a credit B related to the treatment of protected unnecessary documentation from transaction against an applicant sources of income.35 Applicants were consumers who receive Social Security ‘‘because all or part of the applicant’s automatically declined if they sought to disability income raises fair lending income derives from any public rely on income from a non-employment concerns, and called attention to source, such as Social Security income standards and guidelines that may help 40 Consumer Financial Protection Bureau, or retirement benefits, in order to repay lenders comply with the law. Supervisory Highlights Summer 2015 at 20 (June 23, the loan. Marketing materials contained 2015), available at http:// 36 See Official Interpretations, 12 CFR 1002, files.consumerfinance.gov/f/201506_cfpb_ written statements regarding the ¶ 6(b)(2)–6 (Supp. I). supervisory-highlights.pdf. prohibition and may have discouraged 37 See id. (‘‘When considering income derived 41 Consumer Financial Protection Bureau, Section applicants who received public from a public assistance program, a creditor may 8 Housing Choice Voucher Homeownership take into account, for example: i. The length of time Program Bulletin 2015–02 (May 11, 2015), available an applicant will likely remain eligible to receive at http://files.consumerfinance.gov/f/201505_cfpb_ 30 Id. such income. ii. Whether the applicant will bulletin-section-8-housing-choice-voucher- 31 Id. continue to qualify for benefits based on the status homeownership-program.pdf. 32 15 U.S.C. 1691(a)(2). of the applicant’s dependents (as in the case of 42 ‘‘Section 8 Housing Choice Voucher 33 12 CFR 1002.6(b)(5). Regulation B also states Temporary Aid to Needy Families, or social Homeownership Program’’ refers to the that ‘‘[w]hen an applicant relies on alimony, child security payments to a minor).’’). homeownership assistance program authorized by support, or separate maintenance payments in 38 Consumer Financial Protection Bureau, the Quality Housing & Work Responsibility Act of applying for credit, the creditor shall consider such Supervisory Highlights Winter 2015 at 18 (March 1998 (Pub. L. 105–276, approved October 21, 1998; payments as income to the extent that they are 11, 2015), available at http:// 112 Stat. 2461), and the applicable implementing likely to be consistently made.’’ Id. files.consumerfinance.gov/f/201503_cfpb_ regulations, 24 CFR 982.625–982.643. The program 34 Id. at § 1002.4(b). supervisory-highlights-winter-2015.pdf. is also referred to as the Voucher Homeownership 35 Consumer Financial Protection Bureau, 39 See Consumer Financial Protection Bureau, Program, the Housing Choice Voucher Supervisory Highlights Winter 2015 at 13 (March Social Security Disability Income Verification Homeownership Option, or the Section 8 11, 2015), available at http:// Bulletin 2014–03 (November 18, 2014), available at Homeownership Program. files.consumerfinance.gov/f/201503_cfpb_ http://files.consumerfinance.gov/f/201411_cfpb_ 43 24 CFR 982.625(c). supervisory-highlights-winter-2015.pdf. bulletin_disability-income.pdf. 44 Id. at § 982.632(a).

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assistance program.’’ 45 ‘‘Any Federal, and to provide those borrowers with ECOA, the Bureau will require the state, or local governmental assistance financial remuneration and an institution to pay remuneration to program that provides a continuing, opportunity to reapply. affected borrowers, which may include periodic income supplement, whether application or other fees, costs, and 2.1.4 Underwriting Disparity Findings premised on entitlement or need, is other damages. Institutions also may be and Remedial Actions ‘public assistance’ for purposes of the required to re-offer credit. In addition, regulation. The term includes (but is not The Fall 2015 edition of Supervisory institutions must identify and address limited to) . . . mortgage supplement or Highlights detailed the Bureau’s any underlying compliance assistance programs ....’’46 As such, supervisory work on ECOA targeted management system (CMS) weaknesses mortgage assistance provided under the reviews that analyze an institution’s that led to the violations. Section 8 HCV Homeownership underwriting practices. It describes the 2.2 Potential Action and Request for Program is income derived from a Bureau’s supervisory underwriting Response for Fair Lending (PARR–FL) public assistance program under ECOA reviews, methodologies used to Letters and Regulation B. understand underwriting outcomes and Regulation B further provides that identify potential disparities, file In the event that the Bureau is ‘‘[i]n a judgmental system of evaluating selection methods, and guidance to considering formal action, the Bureau creditworthiness, a creditor may institutions on managing fair lending may send a Potential Action and consider . . . whether an applicant’s risks in underwriting.49 Request for Response for Fair Lending income derives from any public CFPB examination teams conduct (PARR–FL) letter to the institution.50 As assistance program only for the purpose targeted ECOA reviews to evaluate areas part of the examination process, the of determining a pertinent element of of heightened fair lending risk. These Bureau sends a PARR–FL letter to creditworthiness.’’ 47 However, ‘‘[i]n reviews generally focus on a specific provide the entity notice of preliminary considering the separate components of line of business, such as mortgages, findings of violation(s) of Federal an applicant’s income, the creditor may credit cards, automobile finance or consumer financial law. The PARR–FL not automatically discount or exclude small business lending. Our letter also notifies the entity that the from consideration any protected underwriting reviews typically include Bureau is considering taking income. Any discounting or exclusion a statistical analysis, and in some cases supervisory action, such as a non-public must be based on the applicant’s actual a loan file review, that assess an memorandum of understanding, or a circumstances.’’ 48 Accordingly, a institution’s compliance with ECOA and public enforcement action, based on the blanket practice of excluding or refusing its implementing regulation, Regulation potential violations identified and to consider Section 8 HCV B, within the specific business line described in the letter. If there is a Homeownership Program vouchers as a selected. potential ECOA violation that could be source of income or accepting the In each examination where a file referred to the DOJ, the PARR–FL letter vouchers only for certain mortgage loan review is conducted, the review is provides the entity notice of the products or delivery channels, without tailored to the specific heightened areas potential for a referral. an assessment of an applicant’s of risk that have previously been Generally, a PARR–FL letter will: • particular situation, may violate ECOA identified. If the examiners identify Identify the laws that the Bureau and Regulation B. examples of files that may provide has preliminarily identified may have Through the supervisory process, the evidence of discrimination, they share been violated and describe the possible Bureau has become aware of one or the files with the institution to obtain illegal conduct; • more institutions excluding or refusing the institution’s explanation. If, Generally describe the types of to consider income derived from the following the statistical analysis and the relief available to the Bureau; • Section 8 HCV Homeownership file review, the examination team Inform the relevant institution of its Program during the mortgage loan believes that there may be a violation of opportunity to submit a written application and underwriting process. ECOA, the CFPB may share the findings response presenting its positions Some institutions have restricted the with the institution in a Potential regarding relevant legal and policy use of Section 8 HCV Homeownership Action and Request for Response for issues, as well as facts through affidavits Fair Lending letter (detailed below). or declarations; Program vouchers to only certain home • mortgage loan products or delivery We noted that CFPB examination Describe the manner and form by channels. Supervision has required one teams have conducted numerous which the institution should respond, if or more institutions to update their examinations to determine whether it chooses to do so, and provide a policies and procedures to ensure that statistical disparities in underwriting submission deadline, generally 14 their practices concerning Section 8 outcomes attributable to race, national calendar days, for timely consideration; • Inform the relevant institution that HCV Homeownership Program vouchers origin, or some other prohibited basis the Bureau is considering comply with ECOA and its characteristic constituted a violation of recommending corrective action; and implementing regulation, Regulation B. ECOA. Many of these examinations • When appropriate, inform the In addition, Supervision has required have concluded without findings of relevant institution that the Office of one or more institutions to identify discrimination. In one or more Fair Lending is considering borrowers who, due to their reliance on examinations, however, examiners recommending that the Bureau refer the Section 8 HCV Homeownership concluded that the disparities resulted from illegal discrimination in violation institution to the DOJ. Program vouchers, were either denied Typically, when a PARR–FL letter loans, or discouraged from applying; of ECOA. When examiners identify results from supervisory activity, the 45 underwriting disparities that violate 15 U.S.C. 1691(a)(2); 12 CFR 1002.2(z), 50 A recent issue of Supervisory Highlights 1002.4(a). described non-Fair Lending PARR letters and the 46 Official Interpretations, 12 CFR 1002.2, ¶ 2(z)– 49 Consumer Financial Protection Bureau, ARC process. See Consumer Financial Protection 3 (Supp. I). Supervisory Highlights Fall 2015 at 27 (November Bureau, Supervisory Highlights Summer 2015 at 27 47 12 CFR 1002.6(b)(2)(iii). 3, 2015), available at http:// (June 23, 2015), available at http:// 48 Official Interpretations, 12 CFR 1002.6 ¶ files.consumerfinance.gov/f/201510_cfpb_ files.consumerfinance.gov/f/201506_cfpb_ 6(b)(5)–3(ii) (Supp. I). supervisory-highlights.pdf. supervisory-highlights.pdf.

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Bureau will send the PARR–FL letter institution. Examiners may complete majority-Black-and-Hispanic prior to finalizing the examination one or more modules as part of a neighborhoods from accessing report or supervisory letter. The Bureau broader review of compliance within an mortgages. The consent order requires carefully considers the institution’s institution product line. For example, in Hudson City to pay $25 million in direct response before reaching a final order to evaluate fair lending risks loan subsidies to qualified borrowers in decision about whether to cite an ECOA related to mortgage servicing, the affected communities, $2.25 million violation, what corrective action to take, examination teams may use Module IV, in community programs and outreach, and, as appropriate, whether to refer the Fair Lending Risks Related to Servicing. and a $5.5 million penalty. This matter to the DOJ. Depending on the This module includes questions on such represents the largest redlining response, the Bureau may determine topics as servicing consumers with settlement in history as measured by that there is no violation of law, and Limited English Proficiency and such direct subsidies. On October 30, that, therefore, neither corrective action policies and procedures related to the 2015, Hudson City was acquired by nor a referral is appropriate. If the offering of hardship and/or loss M&T Bank Corporation, and Hudson Bureau finds a violation, the mitigation options. City was merged into Manufacturers examination report or supervisory letter The updated ECOA Baseline Review Banking and Trust Company (M&T will convey the final findings to the Modules and the CFPB Supervision and Bank), with M&T Bank as the surviving institution, the Bureau will seek Examination Manual can be found on institution. As the successor to Hudson appropriate corrective action, and the the Bureau’s Web site at City, M&T Bank is responsible for Bureau will inform the institution of www.consumerfinance.gov. carrying out the terms of the Consent any referral of the matter to the DOJ. 3. Fair Lending Enforcement Order. Hudson City was a federally-chartered 2.3 ECOA Baseline Modules Update The Bureau conducts investigations of savings association with 135 branches On October 30, 2015, the CFPB potential violations of HMDA and and assets of $35.4 billion and focused published an update to the ECOA ECOA, and if it believes a violation has its lending on the origination and Baseline Review Modules, which are occurred, can file a complaint either purchase of mortgage loans secured by part of the CFPB Supervision and through its administrative enforcement single-family properties. According to Examination Manual. Examination process or in federal court. Like the the complaint, Hudson City illegally teams use the ECOA Baseline Review other federal bank regulators, the avoided and thereby discouraged Modules to conduct ECOA Baseline Bureau refers matters to the DOJ when consumers in majority-Black-and- Reviews, which evaluate how well it has reason to believe that a creditor Hispanic neighborhoods from applying institutions’ compliance management has engaged in a pattern or practice of for credit by: systems identify and manage fair lending discrimination.51 However, • Placing branches and loan officers lending risks. The revised Baseline when the Bureau makes a referral to the principally outside of majority-Black- Review modules better align in content DOJ, the Bureau can still take its own and-Hispanic communities; and organization with the CFPB’s independent action to address a • Selecting mortgage brokers that examination procedures for CMS. The violation. In 2015, the Bureau were mostly located outside of, and did revised modules are consistent with the announced four fair lending not effectively serve, majority-Black- FFIEC Interagency Fair Lending enforcement actions, in mortgage and-Hispanic communities; Examination Procedures and organized origination and indirect auto lending. • Focusing its limited marketing in by fair lending risk areas, such as The Bureau also has a number of neighborhoods with relatively few Black origination and servicing. In addition, ongoing fair lending investigations and and Hispanic residents; and the fifth module, ‘‘Fair Lending Risks has authority to settle or sue in a • Excluding majority-Black-and- Related to Models,’’ is a new module number of matters. Hispanic neighborhoods from its credit that examiners will use to review assessment areas. empirical models that supervised 3.1 Fair Lending Public Enforcement The consent order, which was entered financial institutions may use. Actions by the court on November 4, 2015,53 When using the modules to conduct 3.1.1 Mortgage requires Hudson City to pay $25 million an ECOA Baseline Review, CFPB to a loan subsidy program that will offer Hudson City Savings Bank examination teams review an residents in majority-Black-and- institution’s fair lending supervisory On September 24, 2015, the CFPB and Hispanic neighborhoods in New Jersey, history, including any history of fair the DOJ filed a joint complaint against New York, Connecticut, and lending risks or violations previously Hudson City Savings Bank (Hudson Pennsylvania mortgage loans on a more identified by the CFPB or any other City) alleging discriminatory redlining affordable basis than otherwise available federal or state regulator. Examination practices in mortgage lending and a from Hudson City; spend $1 million on teams collect and evaluate information proposed consent order to resolve the targeted advertising and outreach to about an entity’s fair lending complaint.52 The complaint alleges that generate applications for mortgage loans compliance program, including board of from at least 2009 to 2013 Hudson City from qualified residents in the affected director and management participation, illegally redlined by providing unequal majority-Black-and-Hispanic policies and procedures, training access to credit to neighborhoods in neighborhoods; spend $750,000 on local materials, internal controls and New York, New Jersey, Connecticut, and partnerships with community-based or monitoring and corrective action. In Pennsylvania. Specifically, Hudson City governmental organizations that provide addition to responses obtained pursuant structured its business to avoid and assistance to residents in majority- to information requests, examination thereby discourage residents in Black-and-Hispanic neighborhoods; and teams may also review other sources of information, including any publicly- 51 15 U.S.C. 1691e(g). 53 Consumer Financial Protection Bureau v. available information about the entity as 52 Consumer Financial Protection Bureau v. Hudson City Savings Bank, F.S.B., No. 2:15–cv– Hudson City Savings Bank, F.S.B., No. 2:15–cv– 07056–CCC–JBC (D.N.J. Sept. 24, 2015) (consent well as information obtained through 07056–CCC–JBC (D.N.J. Sept. 24, 2015) (complaint), order), available at http:// interviews with an institution’s staff or available at http://files.consumerfinance.gov/f/ files.consumerfinance.gov/f/201511_cfpb_hudson- supervisory meetings with an 201509_cfpb_hudson-city-joint-complaint.pdf. city-consent-order.pdf.

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spend $500,000 on consumer education, discrimination in residential mortgage As of the second quarter of 2015, Fifth including credit counseling and lending. The agencies alleged that Third was the ninth largest depository financial literacy. In addition to the Provident’s discretionary broker auto loan lender in the United States monetary requirements, the decree compensation policies caused the and the seventeenth largest auto loan orders Hudson City to open two full- differences in total broker fees, and that lender overall. As an indirect auto service branches in majority-Black-and- Provident unlawfully discriminated lender, Fifth Third sets a risk-based Hispanic communities, expand its against African-American and Hispanic interest rate, or ‘‘buy rate,’’ that it assessment areas to include majority- borrowers in mortgage pricing. conveys to auto dealers. Fifth Third Black-and-Hispanic communities, assess Approximately 14,000 African- then allows auto dealers to charge a the credit needs of majority-Black-and- American and Hispanic borrowers paid higher interest rate when they finalize Hispanic communities, and develop a higher total broker fees because of this the transaction with the consumer. As fair lending compliance and training discrimination. described above, this is typically called program. The consent order, which was entered ‘‘discretionary markup.’’ Markups can by the court on June 18, 2015, requires generate compensation for dealers while Provident Funding Associates Provident to pay $9 million to harmed giving them the discretion to charge On May 28, 2015, the CFPB and the borrowers, to pay to hire a settlement similarly-situated consumers different DOJ filed a joint complaint against administrator to distribute funds to the rates. Fifth Third’s policy permitted Provident Funding Associates harmed borrowers identified by the dealers to mark up consumers’ interest (Provident) alleging discrimination in CFPB and the DOJ, and to not rates as much as 2.5% during the period mortgage lending, along with a discriminate against borrowers in under review. proposed order to settle the assessing total broker fees.55 Provident From January 2013 through May 2013, complaint.54 The complaint alleges that will maintain the non-discretionary the Bureau conducted an examination from 2006 to 2011, Provident broker compensation policies and that reviewed Fifth Third’s indirect auto discriminated in violation of ECOA by procedures it implemented in 2014. lending business for compliance with charging over 14,000 African-American Provident’s current policy does not ECOA and Regulation B. On March 6, and Hispanic borrowers more in allow discretion in borrower- or lender- 2015, the Bureau referred the matter to brokers’ fees than similarly-situated paid broker compensation because the DOJ. The CFPB found and the DOJ non-Hispanic White borrowers on the individual brokers are unable to charge alleged that Fifth Third’s indirect basis of race and national origin. or collect different amounts of fees from lending policies resulted in minority Provident is required under the order to different borrowers on a loan-by-loan borrowers paying higher discretionary pay $9 million in damages to harmed basis. The consent order also requires markups, and that Fifth Third violated African-American and Hispanic that Provident continue to have in place ECOA by charging African-American borrowers. a fair lending training program and and Hispanic borrowers higher Provident is headquartered in broker monitoring program. discretionary markups for their auto California and originates mortgage loans Provident must hire a settlement loans than non-Hispanic White through its nationwide network of administrator to distribute the $9 borrowers without regard to the brokers. Between 2006 and 2011, million to harmed borrowers. creditworthiness of the borrowers. Fifth Provident made over 450,000 mortgage 3.1.2 Auto Finance Third’s discriminatory pricing and loans through its brokers. During this compensation structure resulted in time period, Provident’s practice was to Fifth Third Bank thousands of minority borrowers set a risk-based interest rate and then On September 28, 2015, the CFPB paying, on average, over $200 more for allow brokers to charge a higher rate to resolved an action with Fifth Third their auto loans originated between consumers. Provident would then pay Bank (Fifth Third) that requires Fifth January 2010 and September 2015. the brokers some of the increased Third to change its pricing and The CFPB’s administrative consent interest revenue from the higher rates— compensation system by substantially order and the DOJ’s consent order these payments are also known as yield reducing or eliminating discretionary require Fifth Third to reduce dealer spread premiums. Provident’s mortgage markups to minimize the risks of discretion to mark up the interest rate to brokers also had discretion to charge discrimination. On that same date, the a maximum of 1.25% for auto loans borrowers higher fees. The fees paid to DOJ also filed a complaint and proposed with terms of five years or less, and 1% Provident’s brokers were thus made up consent order in the U.S. District Court for auto loans with longer terms, or of these two components: Payments by for the Southern District of Ohio move to non-discretionary dealer Provident from increased interest addressing the same conduct. That compensation. Fifth Third is also revenue and through the direct fees paid consent order was entered by the court required to pay $18 million to affected by the borrower. on October 1, 2015. Fifth Third’s past African-American and Hispanic The CFPB and the DOJ alleged that practices resulted in thousands of borrowers whose auto loans were Provident violated ECOA by charging African-American and Hispanic financed by Fifth Third between January African-American and Hispanic borrowers paying higher interest rates 2010 and September 2015. The Bureau borrowers more in total broker fees than than similarly-situated non-Hispanic did not assess penalties against Fifth non-Hispanic White borrowers based on White borrowers for their auto loans. Third because of the bank’s responsible their race and national origin and not The consent orders require Fifth Third conduct, namely the proactive steps the based on their credit risk. The DOJ also to pay $18 million in restitution to bank is taking that directly address the alleged that Provident violated the Fair affected borrowers.56 fair lending risk of discretionary pricing Housing Act, which also prohibits and compensation systems by 55 United States v. Provident Funding Associates, substantially reducing or eliminating 54 United States and Consumer Financial L.P., No. 3:15–cv–02373 (N.D. Cal. June 18, 2015) that discretion altogether. In addition, Protection Bureau v. Provident Funding Associates, (consent order), available at http:// L.P., No. 3:15–cv–023–73 (N.D. Cal. May 28, 2015) files.consumerfinance.gov/f/201505_cfpb_consent- Fifth Third Bank must hire a settlement (complaint), available at http:// order-provident-funding-associates.pdf. files.consumerfinance.gov/f/201505_cfpb_ 56 In re, Fifth Third Bank, No. 2015–CFPB–0024 files.consumerfinance.gov/f/201509_cfpb_consent- complaint-provident-funding-associates.pdf. (Sept. 28, 2015) (consent order), available at http:// order-fifth-third-bank.pdf.

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administrator who will contact for their auto loans than similarly- million in relief to about 108,000 consumers, distribute the funds, and situated non-Hispanic White borrowers. borrowers excluded from debt relief ensure that affected borrowers receive Honda’s discriminatory pricing and offers because of their national origin.58 compensation. compensation structure resulted in As previously reported, Synchrony thousands of minority borrowers Bank had two different promotions that American Honda Finance Corporation paying, on average, from $150 to over allowed credit card customers with On July 14, 2015, the CFPB resolved $250 more for their auto loans delinquent accounts to address their an action with American Honda Finance originated from January 2011 through outstanding balances, one by paying a Corporation (Honda) that, like Fifth July 14, 2015. specific amount to bring their account Third Bank, requires Honda to change The CFPB’s administrative consent current in return for a statement credit its pricing and compensation system by order and the DOJ’s consent order and another by paying a specific amount substantially reducing or eliminating require Honda to reduce dealer in return for waiving the remaining discretionary markups to minimize the discretion to mark up the interest rate to account balance. However, it did not risks of discrimination.57 On that same a maximum of 1.25% for auto loans extend these offers to any customers date, the DOJ also filed a complaint and with terms of five years or less, and 1% who indicated that they preferred to proposed consent order in the U.S. for auto loans with longer terms, or communicate in Spanish and/or had a District Court for the Central District of move to non-discretionary dealer mailing address in Puerto Rico, even if California addressing the same conduct. compensation. Honda is also required to the customer met the promotion’s That consent order was entered by the pay $24 million to affected African- qualifications. This practice denied court on July 16, 2015. Honda’s past American, Hispanic, and Asian and consumers the opportunity to benefit practices resulted in thousands of Pacific Islander borrowers whose auto from these promotions on the basis of African-American, Hispanic, and Asian loans were financed by Honda between national origin in direct violation of and Pacific Islander borrowers paying January 1, 2011 and July 14, 2015. As ECOA. This public enforcement action higher interest rates than similarly- in the case of Fifth Third, the Bureau represented the federal government’s situated non-Hispanic White borrowers did not assess penalties against Honda largest credit card discrimination for their auto loans. As part of the because of Honda’s responsible conduct, settlement in history. enforcement action, Honda is required namely the proactive steps the company In the course of administering the to pay $24 million in restitution to took to directly address the fair lending settlement, Synchrony Bank identified affected borrowers. risk of discretionary pricing and additional consumers who were Honda is wholly-owned by American compensation systems by substantially excluded from these offers and had a Honda Motor Co., Inc. and as of the first reducing or eliminating that discretion mailing address in Puerto Rico or quarter of 2015, Honda was the fourth altogether. In addition, Honda, through indicated a preference to communicate largest captive auto lender in the United American Honda Motor Co., will contact in Spanish. Synchrony Bank provided a States and the ninth largest auto lender consumers, distribute the funds, and total of approximately $201 million in overall. As an indirect auto lender, ensure that affected borrowers receive redress including payments, credits, Honda sets a risk-based interest rate, or compensation. interest, and debt forgiveness to ‘‘buy rate,’’ that it conveys to auto approximately 133,463 eligible dealers. Honda then allows auto dealers 3.2 Implementing Public Consent consumers. This amount includes to charge a higher interest rate when Orders approximately $4 million of additional they finalize the transaction with the When an enforcement action is redress based on its identification of consumer. As described above, this is resolved through a public consent order, additional eligible consumers. typically called ‘‘discretionary markup.’’ the Bureau (and the DOJ, where Synchrony completed redress to consumers as of August 8, 2015. The discretionary markups can generate relevant) will take steps to ensure that compensation for dealers while giving the respondent or defendant complies PNC Bank, as Successor to National City them the discretion to charge similarly- with the requirements of the order. As Bank situated consumers different rates. appropriate to the specific requirements As previously reported, on December Honda permitted dealers to mark up of individual public consent orders, the 23, 2013, the CFPB and the DOJ filed a consumers’ risk-based interest rates as Bureau may take steps to ensure that joint complaint against National City much as 2.25% for contracts with terms borrowers who are eligible for Bank for discrimination in mortgage of five years or less, and 2% for compensation receive remuneration and lending, along with a proposed order to contracts with longer terms. that the defendant has implemented a settle the complaint. Specifically, the The enforcement action was the result comprehensive fair lending compliance complaint alleged that National City of a joint CFPB and DOJ investigation management system. Throughout 2015, Bank charged higher prices on mortgage that began in April 2013. The agencies the Offices of Fair Lending and loans to African-American and Hispanic investigated Honda’s indirect auto Supervision worked to implement and borrowers than similarly-situated non- lending activities’ compliance with oversee compliance with three separate Hispanic White borrowers between 2002 ECOA. The CFPB found and the DOJ consent orders that were issued by and 2008. The consent order, which was alleged that Honda’s indirect lending Federal courts or the Bureau’s Director entered on January 9, 2014, by the U.S. policies resulted in minority borrowers in prior years. A description of these is District Court for the Western District of paying higher discretionary markups included below. Pennsylvania, required National City’s and that Honda violated ECOA by 3.2.1 Settlement Administration successor, PNC Bank, to pay $35 million charging African-American, Hispanic, in restitution to harmed African- and Asian and Pacific Islander Synchrony Bank, Formerly Known as American and Hispanic borrowers. The borrowers higher discretionary markups GE Capital Retail Bank On June 19, 2014, the CFPB, as part 58 In re. Synchrony Bank, f/k/a GE Capital Retail 57 In re. American Honda Finance Corp., No. of a joint enforcement action with the Bank, No. 2014–CFPB–0007 (June 19, 2014) 2015–CFPB–0014 (July 14, 2015) (consent order), (consent order), available at http:// available at http://files.consumerfinance.gov/f/ DOJ, ordered Synchrony Bank, formerly files.consumerfinance.gov/f/201406_cfpb_consent- 201507_cfpb_consent-order_honda.pdf. known as GE Capital, to provide $169 order_synchrony-bank.pdf.

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consent order also required PNC to pay borrowers between April 2011 and open an independent investigation and to hire a settlement administrator to December 2013 because of Ally’s deferred to the Bureau’s handling of the distribute funds to victims identified by discriminatory discretionary markup matter. The CFPB’s referrals to the DOJ the CFPB and the DOJ.59 and compensation system. in 2015 covered a variety of practices, In order to carry out the Bureau’s and Ally hired a settlement administrator specifically discrimination in mortgage the DOJ’s 2013 settlement with PNC, as to distribute the $80 million in damages lending on the bases of the receipt of successor in interest to National City to harmed borrowers. On June 15, 2015, public assistance income, sex, marital Bank, the Bureau and the DOJ worked the Bureau published a blog post status, race, color, and national origin, closely with the settlement announcing the selection of the and discrimination in auto lending on administrator and PNC to distribute $35 settlement administrator and providing the bases of age, receipt of public million to harmed African-American information on contacting the assistance income, sex, marital status, and Hispanic borrowers. On September administrator and submitting settlement race, and national origin. 16, 2014, the Bureau published a blog forms.63 On June 26, 2015, the post (available in English 60 and settlement administrator sent letters to 3.4 Pending Fair Lending Spanish 61) announcing the selection of Ally borrowers identified as potentially Investigations the settlement administrator and eligible for remediation from the providing information on contacting the settlement fund. Consumers had until In 2015 the Bureau had a number of administrator and submitting settlement October 2015 to respond, after which ongoing fair lending investigations and forms. Under the supervision of the the agencies determined the final authorized enforcement actions against government agencies, the settlement distribution amount for each eligible a number of institutions. In particular, administrator contacted over 90,000 borrower. Following the conclusion of as mortgage lending is among the borrowers who were eligible for the participation period, Ally’s Bureau’s top priorities, the Bureau compensation and made over 120,000 settlement administrator identified focused its fair lending enforcement phone calls in an effort to ensure approximately 301,000 eligible, efforts on addressing the unlawful maximum participation. As of the participating borrowers and co- practice of redlining. Redlining occurs participation deadline of February 17, borrowers—representing approximately when a lender provides unequal access 2015, borrowers on approximately 74% 235,000 loans—who were overcharged to credit, or unequal terms of credit, of the affected loans responded to as a result of Ally’s discriminatory because of the racial or ethnic participate in the settlement. The pricing and compensation structure composition of a neighborhood. At the settlement administrator mailed checks during the relevant time period. On end of 2015, the Bureau had a number to participating borrowers totaling $35 January 29, 2016, the Ally settlement of authorized enforcement actions in million plus accrued interest on May 15, administrator mailed checks totaling settlement negotiations and pending 2015. $80 million plus accrued interest to investigations. harmed borrowers participating in the The Bureau is also focused on Ally Financial Inc. and Ally Bank settlement.64 In addition to the $80 institutions’ indirect auto lending, On December 19, 2013, the CFPB and million in settlement payments for specifically discrimination resulting the DOJ entered into the federal consumers who were overcharged from lender compensation policies that government’s largest auto loan between April 2011 and December 2013, give auto dealers discretion to set loan discrimination settlement in history 62 Ally paid roughly $38.9 million to which required Ally Financial Inc. and consumers that Ally determined were prices. In 2015, the Bureau investigated Ally Bank (Ally) to pay $80 million in both eligible and overcharged on auto several indirect auto lenders and at the damages to harmed African-American, loans issued during 2014, pursuant to end of 2015 had a number of authorized Hispanic, and Asian and Pacific its continuing obligations under the enforcement actions in settlement Islander borrowers. The CFPB found terms of the orders. negotiations and pending investigations. and the DOJ alleged that minority Finally, the Bureau is also borrowers on more than 235,000 auto 3.3 Equal Credit Opportunity Act investigating other areas for potential Referrals to the Department of Justice loans paid higher interest rates than discrimination. At the end of 2015, the similarly-situated non-Hispanic White The CFPB must refer to the DOJ a Bureau had a number of pending matter when it has reason to believe that investigations in other markets 59 Consumer Financial Protection Bureau v. a creditor has engaged in a pattern or including credit cards. National City Bank, No. 2:13–cv–01817–CB (W.D. practice of lending discrimination in Pa. Jan. 9, 2014) (consent order), available at http:// violation of ECOA.65 The CFPB also 4. Rulemaking and Related Guidance files.consumerfinance.gov/f/201312_cfpb_consent_ national-city-bank.pdf. may refer other potential ECOA 4.1 Home Mortgage Disclosure Act 60 Patrice Ficklin, Consumer Financial Protection violations to the DOJ. In 2015, the CFPB (Regulation C) Bureau, National City Bank Settlement referred eight matters to the DOJ. With Administrator Will Contact Eligible Borrowers Soon respect to two of the eight matters In October 2015, the Bureau issued (Sept. 16, 2014), available at http:// www.consumerfinance.gov/blog/national-city-bank- referred to the DOJ, the DOJ declined to and published in the Federal Register a settlement-administrator-will-contact-eligible- final rule to implement the Dodd-Frank borrowers-soon/. 63 Patrice Ficklin, Consumer Financial Protection amendments to HMDA.66 The rule also 61 Patrice Ficklin, Consumer Financial Protection Bureau, Ally Settlement Administrator Will Contact finalizes certain amendments that the Bureau, El administrador de negociacio´ n del Eligible Borrowers Soon (June 15, 2015), available Bureau believes are necessary to National City Bank pronto se pondra´ en contacto at http://www.consumerfinance.gov/blog/ally- con los prestatarios elegibles (Sept. 16, 2014), settlement-administrator-will-contact-eligible- improve the utility of HMDA data, available at http://www.consumerfinance.gov/blog/ borrowers-soon/. further the purposes of HMDA, improve el-administrador-de-negociacion-del-national-city- 64 Patrice Ficklin, Consumer Financial Protection the quality of HMDA data, and create a bank-pronto-se-pondra-en-contacto-con-los- Bureau, Harmed Ally Borrowers Have Been Sent prestatarios-elegibles/. $80 Million in Damages (January 29, 2016), more transparent mortgage market. 62 In re. Ally Financial Inc., No. 2013–CFPB–0010 available at http://www.consumerfinance.gov/blog/ (Dec. 20, 2013) (consent order), available at http:// harmed-ally-borrowers-have-been-sent-80-million- 66 80 FR 66128 (Oct. 28, 2015), available at files.consumerfinance.gov/f/201312_cfpb_consent- in-damages/. https://www.gpo.gov/fdsys/pkg/FR-2015-10-28/pdf/ order_ally.pdf. 65 15 U.S.C. 1691e(g). 2015-26607.pdf; see 12 CFR part 1003.

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4.1.1 HMDA History and Exchange Commission (SEC), and purposes. The HMDA Rule adds new the FTC. data points for applicant or borrower HMDA was enacted 40 years ago to In adopting the final rule, the Bureau age, credit score, automated respond to redlining concerns and the carefully reviewed and considered all of underwriting system information, debt- effects of disinvestment in urban the comments it received, and to-income ratio, combined loan-to-value neighborhoods and to encourage published the final rule in the Federal ratio, unique loan identifier, property reinvestment in the nation’s cities. The Register on October 28, 2015 (the value, application channel, points and statute, as implemented by Regulation HMDA Rule). The Bureau has also fees, borrower-paid origination charges, C, is intended to provide the public issued a number of regulatory discount points, lender credits, loan with loan data that can be used to help implementation tools and resources to term, prepayment penalty, non- determine whether financial institutions assist industry in understanding and amortizing loan features, interest rate, are serving the housing needs of their implementing the new rule’s and loan originator identifier as well as communities; to assist public officials in requirements, which are available at other data points. The HMDA Rule also distributing public-sector investment to www.consumerfinance.gov/hmda. modifies several existing data points. attract private investment in For data collected on or after January 4.1.3 Summary of Regulation C communities where it is needed; and to 1, 2018, the HMDA Rule amends the Changes assist in identifying possible requirements for collection and discriminatory lending patterns and The rule modifies the types of reporting of information regarding an enforcing anti-discrimination statutes.67 institutions and transactions subject to applicant’s or borrower’s ethnicity, race, HMDA data are also used for a range of Regulation C, adds new data reporting and sex. First, a covered institution will mortgage market monitoring purposes requirements, clarifies several existing report whether or not it collected the by community groups, public officials, data reporting requirements and information on the basis of visual the financial industry, economists, modifies the processes for reporting and observation or surname. Second, academics, social scientists, regulators, disclosing the required data. covered institutions must permit and the media. Bank regulators and The HMDA Rule changes institutional applicants to self-identify their ethnicity other agencies use HMDA to monitor coverage in two phases. First, to reduce and race using disaggregated ethnic and compliance with and enforcement of the burden on industry, certain lower- racial subcategories. However, the Community Reinvestment Act (CRA) volume depository institutions will no HMDA Rule will not require or permit and federal anti-discrimination laws, longer be required to collect and report covered institutions to use the including ECOA and the Fair Housing HMDA data beginning in 2017. A bank, disaggregated subcategories when Act (FHA). savings association, or credit union will identifying the applicant’s or borrower’s The Dodd-Frank Act transferred not be subject to Regulation C in 2017 ethnicity and race based on visual rulemaking authority for HMDA to the unless it meets the asset-size, location, observation or surname. Bureau, effective July 2011. It also federally related, and loan activity tests The Bureau is developing a new web- amended HMDA to require financial under current Regulation C and it based submission tool for reporting institutions to report new data points originates at least 25 home purchase HMDA data, which covered institutions and authorized the Bureau to require loans, including refinancings of home will use beginning in 2018. Regulation financial institutions to collect, record, purchase loans, in both 2015 and 2016. C’s appendix A is amended effective and report additional information. Second, effective January 1, 2018, the January 1, 2018 to include new HMDA Rule adopts a uniform loan- transition requirements for data 4.1.2 Rule History volume threshold for all institutions. collected in 2017 and reported in 2018. On August 29, 2014, the Bureau Beginning in 2018, an institution will be Covered institutions will be required to published in the Federal Register a subject to Regulation C if it originated electronically submit their loan proposed rule to implement changes to at least 25 covered closed-end mortgage application registers (LARs). Beginning Regulation C and sought public loan originations in each of the two with data collected in 2018 and reported comment on the proposal.68 The preceding calendar years or at least 100 in 2019, covered institutions will report comment period ran through the end of covered open-end lines of credit in each the new dataset required by the HMDA October 2014. The Bureau received of the two preceding calendar years. Rule, using revised procedures that will approximately 400 comments on its Other applicable coverage requirements be available at HMDA proposal. Commenters included will apply, depending on the type of www.consumerfinance.gov/hmda. consumer advocacy groups; national, covered entity. Beginning in 2020, the HMDA Rule State, and regional industry trade The Rule also modifies the types of requires quarterly reporting for covered associations; banks; credit unions; transactions covered under Regulation institutions that reported a combined software providers; housing counselors; C. In general, the HMDA Rule adopts a total of at least 60,000 applications and academics; and others. The Bureau also dwelling-secured standard for covered loans in the preceding calendar consulted with or offered to consult transactional coverage. Beginning on year. An institution will not count with the prudential regulators (the January 1, 2018, covered loans under covered loans that it purchased in the Federal Reserve Board (FRB), the the HMDA Rule generally will include preceding calendar year when Federal Deposit Insurance Corporation closed-end mortgage loans and open- determining whether it is required to (FDIC), the National Credit Union end lines of credit secured by a dwelling report on a quarterly basis. The first Administration (NCUA), and the Office and will not include unsecured loans. quarterly submission will be due by of the Comptroller of the Currency For HMDA data collected on or after May 30, 2020. (OCC)), the DOJ, HUD, the Federal January 1, 2018, covered institutions Beginning in 2018, covered Housing Finance Agency, the Securities will collect, record, and report institutions will no longer be required to additional information on covered provide a disclosure statement or a loans. New data points include those modified LAR to the public upon 67 12 U.S.C. 2801 et seq. 68 79 FR 51732 (Aug. 29, 2014), available at specifically identified in Dodd-Frank as request. Instead, in response to a http://www.gpo.gov/fdsys/pkg/FR-2014-08-29/pdf/ well as others the Bureau determined request, a covered institution will 2014-18353.pdf. will assist in carrying out HMDA’s provide a notice that its disclosure

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statement and modified LAR are 4.1.5 HMDA Data Resubmission RFI In December 2015, the Bureau updated available on the Bureau’s Web site. In response to dialogue with industry its Unified Agenda and Regulatory Plan These revised disclosure requirements and other stakeholders, the Bureau is to reflect that rulemaking pursuant to will apply to data collected on or after Section 1071 is now in the pre-rule considering modifications to its current 73 January 1, 2017 and reported in or after resubmission guidelines. In comments stage. The first stage of the Bureau’s 2018. on the Bureau’s proposed changes to work will be focused on outreach and For data collected in or after 2018 and Regulation C, some stakeholders asked research, after which the Bureau will reported in or after 2019, the Bureau that the Bureau adjust its existing begin developing proposed rules concerning the data to be collected and will use a balancing test to determine HMDA resubmission guidelines to determining the appropriate procedures whether and, if so, how HMDA data reflect the expanded data the Bureau and privacy protections needed for should be modified prior to its will collect under the HMDA Rule. information-gathering and public disclosure in order to protect applicant Accordingly, on January 7, 2016, the Bureau published on its Web site a disclosure. and borrower privacy while also The Bureau has begun to explore Request for Information (RFI) asking for fulfilling HMDA’s disclosure purposes. some of the issues involved in the public comment on the Bureau’s HMDA At a later date, the Bureau will provide rulemaking, including engaging resubmission guidelines.70 a process for the public to provide input Specifically, numerous stakeholders about the regarding the application of this the Bureau requested feedback on the statutory reporting requirements. The balancing test to determine the HMDA Bureau’s use of resubmission error Bureau is also considering how best to data to be publicly disclosed. thresholds; how they should be work with other agencies to, in part, calculated; whether they should vary 4.1.4 Reducing Industry Burden gain insight into existing small business with the size of the HMDA submission data collection efforts and possible ways or kind of data; and the consequences The Bureau took a number of steps to to cooperate in future efforts. In for exceeding a threshold, among other reduce industry burden while ensuring addition, current and future small topics. Some examples of questions HMDA data are useful and reflective of business lending supervisory activity posed to the public include: the current housing finance market. A will help expand and enhance the • Should the Bureau continue to use key part of this balancing is ensuring an Bureau’s knowledge in this area, error percentage thresholds to determine adequate implementation period. Most including the credit process; existing the need for data resubmission? If not, data collection processes; and the provisions of the HMDA Rule go into how else may the Bureau ensure data effect on January 1, 2018—more than nature, extent, and management of fair integrity and compliance with HMDA lending risk. two years after publication of the Rule— and Regulation C? and apply to data collected in 2018 and • If the Bureau retains error 4.3 Amicus Program reported in 2019 or later years. At the percentage thresholds, should the The Bureau’s Amicus Program files same time, an institutional coverage thresholds be calculated differently than amicus, or friend-of-the-court, briefs in change that will reduce the number of they are today? If so, how and why? court cases concerning the federal depository institutions that need to • If the Bureau retains error consumer financial protection laws that report is effective earlier: On January 1, percentage thresholds, should it the Bureau is charged with 2017. Institutions subject to the new continue to maintain separate error implementing, including ECOA. These quarterly reporting requirement will thresholds for the entire HMDA LAR amicus briefs provide the courts with have additional time to prepare: That sample and individual data fields our views on significant consumer requirement is effective on January 1, within the LAR sample? If not, why? financial protection issues and help 2020, and the first quarterly submission The RFI was published in the Federal ensure that consumer financial will be due by May 30, 2020. Register on January 12, 2016.71 The 60- protection statutes and regulations are As with all of its rules, the Bureau day comment period ended on March correctly and consistently interpreted by continues to look for ways to help the 14, 2016. As of this report’s publication the courts. mortgage industry implement the new date, the Bureau was reviewing the On May 28, 2015, the Bureau with the mortgage lending data reporting rules, comments received in response to the Solicitor General of the United States and has created regulatory RFI. filed an amicus brief in Hawkins v. Community Bank of Raymore implementation resources that are 4.2 Small Business Data Collection available online. These resources addressing the question whether include an overview of the final rule, a Section 1071 of Dodd-Frank requires Regulation B permissibly interprets plain-language compliance guide, a financial institutions to compile, ECOA’s definition of ‘‘applicant’’ to timeline with various effective dates, a maintain, and submit to the Bureau encompass guarantors.74 Regulation B decision tree to help institutions certain data on credit applications for forbids creditors from requiring one determine whether they need to report women-owned, minority-owned, and spouse to guarantee the other spouse’s 72 mortgage lending data, a chart that small businesses. Congress enacted debt obligation solely because the provides a summary of the reportable Section 1071 for the purpose of couple is married. The regulation data, and a chart that describes when to facilitating enforcement of fair lending further defines the ‘‘applicants’’ report data as not applicable. The laws and identifying business and protected from that discriminatory Bureau will monitor implementation community development needs and practice to include any such guarantor. progress and will be publishing opportunities for women-owned, The amicus brief argues that this additional regulatory implementation minority-owned, and small businesses. interpretation of ‘‘applicant’’ is a tools and resources on its Web site to 70 See http://www.consumerfinance.gov/ 73 support implementation needs.69 80 FR 78055, 78058 (Dec. 15, 2015). newsroom/cfpb-seeks-public-input-on-mortgage- 74 Brief for the United States as Amicus Curiae lending-information-resubmission-guidelines/. Supporting Petitioners, Hawkins v. Community 69 These resources are available at http:// 71 81 FR 1405 (Jan. 12, 2016). Bank of Raymore, 135 S.Ct. 1492 (2015) (granting www.consumerfinance.gov/regulatory- 72 Dodd-Frank Act, section 1071 (codified at 15 cert.) (No. 14–520), available at http:// implementation/hmda/. U.S.C. 1691c–2). www.consumerfinance.gov/amicus/.

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permissible interpretation of ECOA that 5. Research minority applicants. The analysis is entitled to deference and should be As part of the Bureau’s commitment suggested that this pattern of under- and upheld.75 In an equally divided 4–4 to transparency and to being a data- over-estimation is likely more decision that lacks precedential effect, driven agency, we continue to evaluate pronounced for mortgage applicants, the Supreme Court affirmed the and share our fair lending who tend to be disproportionately more decision of the Court of Appeals for the methodologies and analytical non-Hispanic White than the U.S. adult Eighth Circuit.76 approaches. In the Bureau’s 2015 Fair population, and that in other settings, 79 In 2015, the Bureau also began the Lending Report to Congress, we such as auto lending, the pattern may be process of working on an amicus brief discussed our evaluation of our proxy less pronounced. in Alexander v. Ameripro Funding, Inc., methodology, and responded to Subsequent analysis of auto loan feedback from stakeholders. During the appealing the United States District originations reported in the Consumer past year we have engaged in further Court for the Southern District of Expenditure Survey (CEX), a publicly- dialogue around the Bureau’s proxy available survey of U.S. consumer Texas’s dismissal of an ECOA complaint methodology. We have also described alleging discrimination because all or expenditures conducted by the Bureau the Bureau’s approach to analyzing of Labor Statistics,81 and mortgage part of the applicants’ income derives underwriting outcomes. from a public assistance program. The originations reported in the 2012 HMDA District Court held that the allegations 5.1 Proxy Methodology data supports this point. For instance, in the complaint failed to state a prima On September 17, 2014, the Bureau 12% of the U.S. adult population is facie claim of discrimination and to published a white paper, titled Using African American, and in 2012 African- allege direct evidence of discrimination Publicly Available Information to Proxy American consumers received 10% of because the allegations were for Unidentified Race and Ethnicity, auto loan originations compared to 4% of mortgage loan originations. The ‘‘conclusory’’ and failed to allege that details the Bayesian Improved general pattern of the percentage of auto hostility or animus.77 The Bureau filed Surname Geocoding (BISG) loan originations being closer to the its amicus brief on February 23, 2016, methodology the Bureau uses to corresponding population percentage and argued that allegations that calculate the probability that an holds for non-Hispanic White, Asian creditors refused to consider public individual is of a specific race and and Pacific Islander, and Hispanic assistance income state a claim under ethnicity based on his or her last name 80 borrowers. This evidence suggests that ECOA sufficient to survive a motion to and place of residence. The analysis in the white paper for a nationally representative sample of dismiss. The brief also argued that showed that, compared to the consumers, the distribution of race and hostility and animus are not elements of ethnicity for auto loan borrowers more 78 distribution of self-reported race and a discrimination claim under ECOA. ethnicity in a sample of mortgage closely approximates the distribution of The Bureau’s Amicus Program is applicants, the BISG proxy race and ethnicity in the U.S. adult ongoing and we welcome suggestions of underestimated the percentage of non- population than does the distribution of pending cases that might make good Hispanic White mortgage applicants and race and ethnicity for mortgage candidates for the program. overestimated the percentage of borrowers.

TABLE 1—COMPARISON OF DISTRIBUTIONS OF RACE AND ETHNICITY

Adult Auto loan Mortgage loan population originations originations Race/ethnicity (census 2010) (CEX 2012) (HMDA 2012) (percent) (percent) (percent)

Non-Hispanic White ...... 67 73 82 African American ...... 12 10 4 Asian and Pacific Islander ...... 5 4 7 Hispanic ...... 14 11 7

The Bureau’s methodology is number of harmed borrowers and the lenders with regard to their specific loan designed to arrive at the best estimate, amount of harm. These alternative portfolios. In other instances, the based on publicly available data, of the methods do not typically suggest an Bureau has retained its original total number of harmed borrowers and absence of discrimination or consumer estimates, for example, where we have to accurately identify the full scope of harm, but rather a lower level than the concluded that the proffered harm. The Bureau makes final Bureau’s original estimates. In some alternatives would underestimate the determinations regarding discriminatory instances, as a result of dialogue with level of discrimination and harm outcomes and their scope in dialogue institutions, the Bureau has adopted without an adequate basis. with individual lenders, and carefully changes to our analyses and reduced our As we stated in our white paper, the considers every argument lenders make estimates in response to specific Bureau is committed to continuing our about alternative ways to identify the alternatives offered by individual dialogue with other federal agencies,

75 Id. at 11. Reversal, Alexander, et al. v. Ameripro Funding, 80 Available at http://www.consumerfinance.gov/ 76 Hawkins v. Community Bank of Raymore, 577 Inc., et al., No. 15–20710 (5th Cir. Feb. 23, 2016), reports/using-publicly-available-information-to- U.S. (2016), 2016 WL 1092416. available at http://www.consumerfinance.gov/ proxy-for-unidentified-race-and-ethnicity/. 77 Alexander v. Ameripro Funding, Inc., 2015 WL amicus/. 81 See United States Department of Labor, Bureau 4545625 at *4 (S.D. Tex. 2015). 79 Available at http://files.consumerfinance.gov/f/ of Labor Statistics, Consumer Expenditure Survey, 78 Brief of Amicus Curiae Consumer Financial 201504_cfpb_fair_lending_report.pdf. public-use microdata available at http:// Protection Bureau in Support of Appellants and www.bls.gov/cex/pumdhome.htm.

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lenders, industry groups, consumer 6. Interagency Coordination coordination of fair lending enforcement advocates, and researchers regarding the 6.1 Interagency Coordination and efforts. In addition to these interagency Bureau’s methodology, the importance Engagement working groups, we meet periodically of fair lending compliance, and the use and on an ad hoc basis with the of proxies when self-reported race and The Office of Fair Lending regularly prudential regulators to coordinate our ethnicity is unavailable. We expect the coordinates the CFPB’s fair lending fair lending work. methodology will continue to evolve as efforts with those of other federal 6.1.4 FFIEC HMDA/Community enhancements are identified that further agencies and state regulators to promote Reinvestment Act Data Collection increase accuracy and performance. consistent, efficient, and effective enforcement of federal fair lending Subcommittee 5.2 Methodologies That Can Be Used laws.82 Through our interagency The CFPB takes part in the FFIEC To Understand Underwriting Disparities engagement, we work to address current HMDA/Community Reinvestment Act As noted above, the Fall 2015 edition and emerging fair lending risks. Data Collection Subcommittee, which is of Supervisory Highlights detailed the 6.1.1 Financial Fraud Enforcement a subcommittee of the FFIEC Task Force Bureau’s supervisory work on ECOA Task Force’s Non-Discrimination on Consumer Compliance, as its work targeted reviews that analyze an Working Group relates to the collection and processing of HMDA data jurisdiction. institution’s underwriting practices, The Financial Fraud Enforcement including methodologies used to Task Force was established in 6.2 CFPB–HUD Memorandum of understand underwriting outcomes and November 2009 by an Executive Order Understanding identify potential disparities. aimed at strengthening the efforts of the In CFPB underwriting reviews, which To increase efficiency and reduce DOJ and federal, state, and local industry burden where appropriate, the typically evaluate potential disparities agencies ‘‘to investigate and prosecute in denial rates, Bureau economists and Bureau and HUD frequently collaborate significant financial crimes and other and share information when there is analysts may rely on various methods to violations relating to the current measure whether outcomes differ based overlapping authority. On September 2, financial crisis and economic recovery 2015, the Bureau and HUD entered into on race, national origin, sex, or other efforts, recover the proceeds of such prohibited bases. a Memorandum of Understanding financial crimes and violations, and (MOU) delineating how each agency One traditional method involves odds ensure just and effective punishment of will use and properly share information ratios, which measure the ratio of the those who perpetuate financial crimes to enhance fair lending compliance and odds of two different events. In the 83 and violations.’’ The Non- interagency collaboration around context of an underwriting analysis, the Discrimination Working Group focuses institutions and issues over which the ratio reflects the odds of a loan on and monitors financial fraud or other two agencies share jurisdiction. The application denial between groups of unfair practices and emerging trends in MOU further extends the Bureau’s borrowers. order to proactively address emerging robust working relationship with HUD. However, the Bureau may use other discriminatory practices directed at In particular, HUD can now access the methods of analysis, including marginal people or neighborhoods based on race, Bureau’s Government Portal, allowing effects, to gain a better understanding of color, religion, national origin, gender, HUD to view the Bureau’s consumer the nature and relative magnitude of any age, disability, or other bases prohibited complaints. HUD, in turn, provides to underwriting disparities. In contrast to by law. the Bureau reports describing the fair odds ratios, the marginal effect 6.1.2 Interagency Task Force on Fair lending complaints that it has received. expresses the absolute change in denial Lending Additionally, the agencies have agreed probability associated with being a to coordinate joint fair lending member of a prohibited basis group. For The CFPB, along with the FTC, DOJ, investigations to minimize duplication example, a marginal effect of 0.10 in an HUD, FDIC, FRB, NCUA, OCC, and the of efforts; meet quarterly to discuss underwriting analysis means the Federal Housing Finance Agency, current fair lending investigations of probability of denial for the test group comprise the Interagency Task Force on entities within the jurisdiction of both is 10 percentage points higher than the Fair Lending. The Task Force meets Agencies; coordinate action(s) in a probability of denial for the control regularly to discuss fair lending manner consistent and complementary group. When the CFPB calculates enforcement efforts, share current to each agency’s actions, including marginal effects, it also considers a methods of conducting supervisory and determining whether multiple or joint conditional marginal effect, which enforcement fair lending activities, and actions are necessary and appropriate; provides the increased chances of denial coordinate fair lending policies. notify each agency of relevant for a group holding all other factors 6.1.3 Interagency Working Group on information under specified constant, and thus controls for other, Fair Lending Enforcement circumstances; and meet annually to legitimate credit characteristics that may assess the implementation of the MOU. affect the probability of denial. The CFPB belongs to a standing An additional benefit of marginal working group of Federal agencies— 7. Outreach: Promoting Fair Lending effects is that they can be compared with the DOJ, HUD, and FTC—that Compliance and Education meets regularly to discuss issues across groups and institutions, and to 84 relating to fair lending enforcement. The Pursuant to Dodd-Frank, the Office the institution’s overall approval and of Fair Lending regularly engages in denial rates in the specific product agencies use these meetings to discuss fair lending developments and trends, outreach with Members of Congress, reviewed. In this manner, the CFPB can industry, bar associations, consumer contextualize the disparity to determine methodologies for evaluating fair lending risks and violations, and advocates, civil rights organizations, whether it warrants additional inquiry. other government agencies, and other In a number of instances, our review of 82 Dodd-Frank Act, section 1013(c)(2)(B) (codified stakeholders to help educate and inform marginal effects data has allowed us to at 12 U.S.C. 5493(c)(2)(B)). decide that a particular disparity does 83 Exec. Order No. 13519, 74 FR 60123 (Nov. 17, 84 Dodd-Frank Act, section 1013(c)(2)(C) (codified not merit additional inquiry. 2009). at 12 U.S.C. 5493(c)(2)(C)).

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about fair lending. The Bureau is Homeownership Program during When issues arise that consumers need committed to communicating directly mortgage loan application and to know about, the Bureau uses many with all stakeholders on its policies, underwriting processes. Some tools to spread the word. The Bureau compliance expectations, and fair institutions have restricted the use of regularly uses its blog as a tool to lending priorities. As part of this Section 8 HCV Homeownership communicate effectively to consumers commitment to outreach and education Program vouchers to only certain home on timely issues, emerging areas of in the area of fair lending, equal mortgage loan products or delivery concern, Bureau initiatives, and more. opportunity and ensuring fair access to channels. Our reminder to mortgage In 2015 we published several blog posts credit, Bureau personnel have engaged lenders, in the form of the compliance related to fair lending, including in dialogue with stakeholders on issues bulletin, should help consumers who announcement of the Hudson City including the use of public assistance receive Section 8 HCV Homeownership redlining settlement, published in both income in underwriting, disparate Program vouchers receive fair and equal English 91 and Spanish; 92 updates on impact, HMDA data collection and access to credit and will help industry the Ally settlement, published in both reporting, indirect auto financing, the comply with current law. English 93 and Spanish; 94 information use of proxy methodology, and the about income from the Section 8 unique challenges facing limited 7.2 HMDA Rule and RFI Housing Choice Voucher English proficient (LEP) and lesbian, As explained more fully earlier in this Homeownership Program; 95 and, a gay, bisexual and transgender (LGBT) report, the Bureau published its final summary of the 2014 Annual Report.96 consumers in accessing credit. Outreach rule implementing the Dodd-Frank Act’s The blog may be accessed any time at is accomplished through issuance of amendments to HMDA and Regulation www.consumerfinance.gov/blog. Interagency Statements, Supervisory C in October 2015. Prior to publishing 7.4 Fair Lending Webinar Highlights, Compliance Bulletins, and its final rule, the Bureau received and blog posts, speeches and presentations reviewed approximately 400 comments On October 15, 2015, along with at conferences and trainings, interaction in response to its proposed rule. federal partners from the FRB, the DOJ, with Members of Congress and their Additionally, the Bureau, in accordance the FDIC, the OCC, HUD, and the staff, and participating in convenings to with its obligation under the Dodd- NCUA, the Office of Fair Lending staff discuss fair lending and access to credit Frank Act to consult with the participated in and presented at the matters. appropriate prudential regulators and 2015 Federal Interagency Fair Lending other Federal agencies prior to Hot Topics webinar. The webinar 7.1 Section 8 HCV Homeownership covered several fair lending topics, Compliance Bulletin proposing a rule and during the 89 comment process, proactively met 91 When the Bureau becomes aware of with regulators throughout the Patrice Ficklin, Consumer Financial Protection compliance issues that may be Bureau, Hudson City Savings Bank to Pay $27 rulemaking process to seek and consider million to Increase Access to Credit in Black and widespread, it works to share their feedback. Hispanic Neighborhoods it Discriminated against information with industry stakeholders In conjunction with the HMDA Rule, (September 24, 2015), available at http:// www.consumerfinance.gov/blog/hudson-city- and consumers to address the concerns. the Bureau published a Web page On May 11, 2015, the Bureau issued a savings-bank-to-pay-27-million-to-increase-access- dedicated to HMDA to consolidate to-credit-in-black-and-hispanic-neighborhoods-it- compliance bulletin on the Section 8 resources for consumers, industry, discriminated-against/. Housing Choice Voucher (HCV) academia, the media and other 92 Patrice Ficklin, Consumer Financial Protection Homeownership Program.85 The Bureau, El Banco de Ahorros Hudson City pagara´ stakeholders. The HMDA Web page Bulletin reminds creditors of their $27 millones para aumentar el acceso al cre´dito en contains the new rule, materials for vecindarios mayormente afroamericanos e hispanos obligations under ECOA 86 and better understanding the rule and its que discriminaba (October 21, 2015), available at Regulation B 87 to provide non- requirements, a tool to explore HMDA http://www.consumerfinance.gov/blog/el-banco-de- discriminatory access to credit for ahorros-hudson-city-pagara-27-millones-para- data, helpful facts and figures about mortgage applicants using income from aumentar-el-acceso-al-credito-en-vecindarios- HMDA data, and more. The Web page mayormente-afroamericanos-e-hispanos-que- the Section 8 HCV Homeownership can be accessed at discriminaba/. Program. In addition to publishing the 93 www.consumerfinance.gov/hmda. Patrice Ficklin, Consumer Financial Protection Bulletin on its Web site, the Bureau Bureau, Ally Settlement Administrator Will Contact In addition, on January 12, 2016, the published a blog post to raise consumer Eligible Borrowers Soon (June 15, 2015), available Bureau published in the Federal at http://www.consumerfinance.gov/blog/ally- awareness of the Bulletin and the issues settlement-administrator-will-contact-eligible- it addresses.88 Register a Request for Information (RFI) on possible modifications to the HMDA borrowers-soon/. The Bureau became aware of 94 90 Patrice Ficklin, Consumer Financial Protection circumstances where institutions were data resubmission guidelines. More Bureau, Un administrador del acuerdo de Ally en excluding or refusing to consider information on both the HMDA Rule breve estara´ en contacto con prestatarios elegibles income derived from the Section 8 HCV and the HMDA resubmission RFI may (June 15, 2015), available at http:// be found in Section 4.1 of this Report. www.consumerfinance.gov/blog/un-administrador- del-acuerdo-de-ally-en-breve-estara-en-contacto- 85 Consumer Financial Protection Bureau, Section 7.3 Blog Posts con-prestatarios-elegibles/. 8 Housing Choice Voucher Homeownership 95 Patrice Ficklin & Daniel Dodd-Ramirez, Program Bulletin 2015–02 (May 11, 2015), available The Bureau firmly believes that an Consumer Financial Protection Bureau, Income at http://files.consumerfinance.gov/f/201505_cfpb_ informed consumer is the best defense from the Section 8 Housing Choice Voucher bulletin-section-8-housing-choice-voucher- Homeownership Program Shouldn’t Mean You homeownership-program.pdf. against predatory lending practices. Don’t Qualify for a Mortgage (May 11, 2015), 86 15 U.S.C. 1691 et seq. available at http://www.consumerfinance.gov/blog/ 87 12 CFR part 1002 et seq. 89 Dodd-Frank Act, section 1022(b)(2)(B) (codified income-from-the-section-8-housing-choice-voucher- 88 Patrice Ficklin & Daniel Dodd-Ramirez, Income at 12 U.S.C. 5512(b)(2)(B)). homeownership-program-shouldnt-mean-you-dont- from the Section 8 Housing Choice Voucher 90 Consumer Financial Protection Bureau, qualify-for-a-mortgage/. Homeownership Program Shouldn’t Mean You Request for Information Regarding Home Mortgage 96 Patrice Ficklin, Consumer Financial Protection Don’t Qualify for a Mortgage (May 11, 2015), Disclosure Act Resubmission Guidelines 2015–0058 Bureau, We’re Making Progress toward Ensuring available at http://www.consumerfinance.gov/blog/ (Jan. 12, 2016), available at http:// Fair Access to Credit (April 28, 2015), available at income-from-the-section-8-housing-choice-voucher- files.consumerfinance.gov/f/201601_cfpb_request- http://www.consumerfinance.gov/blog/were- homeownership-program-shouldnt-mean-you-dont- for-information-regarding-home-mortgage- making-progress-toward-ensuring-fair-access-to- qualify-for-a-mortgage/. disclosure-act-resubmission.pdf. credit/.

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including the use of data in evaluating resources, all editions of Supervisory agencies assigned enforcement authority fair lending risk, compliance Highlights are available on under Section 704 of ECOA are management, maternity leave www.consumerfinance.gov/reports. discussed in this section. discrimination, post-origination risks, 8. Interagency Reporting and auto lending settlements. The 8.1.1 Public Enforcement Actions Pursuant to ECOA, the CFPB is webinar was viewed by more than 6,000 In addition to the CFPB, the agencies registrants. required to file a report to Congress describing the administration of its charged with administrative 7.5 Supervisory Highlights functions under ECOA, providing an enforcement of ECOA under Section 704 include: The FRB, the FDIC, the OCC, Supervisory Highlights publications assessment of the extent to which and the NCUA (collectively, the FFIEC anchor the Bureau’s efforts to compliance with ECOA has been agencies); 99 the FTC, the Farm Credit communicate with supervised entities achieved, and giving a summary of about supervisory findings. Because the public enforcement actions taken by Administration (FCA), the Department Bureau’s supervisory process is other agencies with administrative of Transportation (DOT), the SEC, the confidential, Supervisory Highlights enforcement responsibilities under Small Business Administration (SBA), 97 reports provide information to all ECOA. This section of this report and the Grain Inspection, Packers and market participants on broad provides the following information: Stockyards Administration (GIPSA) of • A description of the CFPB’s and 100 supervisory and market trends that the the Department of Agriculture. In other agencies’ ECOA enforcement Bureau observes. In 2015, Supervisory 2015, CFPB had four public efforts; and enforcement actions for violations of Highlights covered many topical issues • an assessment of compliance with ECOA, and the FDIC issued one public pertaining to fair lending, including an ECOA. overview of Bureau underwriting In addition, the CFPB’s annual HMDA enforcement action for violations of reviews, discussion of mortgage reporting requirement calls for the ECOA and/or Regulation B. origination policies that violate ECOA CFPB, in consultation with HUD, to and Regulation B by failing to consider 8.1.2 Violations Cited During ECOA report annually on the utility of Examinations public assistance income, and HMDA’s requirement that covered settlement updates for recent lenders itemize certain mortgage loan Among institutions examined for enforcement actions that were data.98 compliance with ECOA and Regulation originated in the supervisory process. 8.1 Equal Credit Opportunity Act B, the FFIEC agencies reported that the More information about the topics most frequently cited violations were: discussed this year in Supervisory Enforcement Highlights can be found in Section 2.1 The enforcement efforts and of this Report. As with all Bureau compliance assessments made by all the TABLE 2—MOST FREQUENTLY CITED REGULATION B VIOLATIONS BY FFIEC AGENCIES: 2015

FFIEC Agencies reporting Regulation B violations: 2015

CFPB, FDIC, FRB, NCUA, OCC ...... 12 CFR 1002.4(a): Discrimination on a prohibited basis in a credit transaction. 12 CFR 1002.5(b), (d): Improperly requesting information about an applicant’s race, color, religion, national origin, sex, marital status or source of income. 12 CFR 1002.6(b)(1), (b)(2), (b)(5), (b)(9): Improperly considering age, receipt of public assistance, certain other in- come, or another prohibited basis in a system of evaluating applicant creditworthiness. 12 CFR 1002.7(a), (d)(1): Refusing to grant an individual account to a creditworthy applicant on a prohibit basis; im- properly requiring the signature of an applicant’s spouse or other person. 12 CFR 1002.9(a)(1), (a)(2), (b)(1), (b)(2), (c): Failure to timely notify an applicant when an application is denied; failure to provide sufficient information in an adverse action notification, including the specific reasons the applica- tion was denied; failure to timely and/or appropriately notify an applicant of either action taken or of incomplete- ness after receiving an application that is incomplete. 12 CFR 1002.12(b)(1), (b)(3): Failure to preserve records on actions taken on an application or of incompleteness, and on adverse actions regarding existing accounts. 12 CFR 1002.13(a) and (b): Failure to request and collect information about the race, ethnicity, sex, marital status, and age of applicants seeking certain types of mortgage loans. 12 CFR 14(a): Failure to provide an applicant with a copy of all appraisals and other written valuations developed in connection with an application for credit that is to be secured by a first lien on a dwelling, and/or failure to provide an applicant with a notice in writing of the applicant’s right to receive a copy of all written appraisals developed in connection with the application.

TABLE 3—MOST FREQUENTLY CITED REGULATION B VIOLATIONS BY OTHER ECOA AGENCIES, 2015

Other ECOA agencies Regulation B violations: 2015

FCA ...... 12 CFR 1002.9: Failure to timely notify an applicant when an application is denied; failure to provide sufficient information in an adverse action notification, including the specific reasons the application was denied. 12 CFR 1002.13: Failure to request and collect information about the race, ethnicity, sex, marital sta- tus, and age of applicants seeking certain types of mortgage loans.

97 15 U.S.C. 1691f. standards, and report forms for the federal institutions.’’ Federal Financial Institutions 98 12 U.S.C. 2807. examination of financial institutions’’ by the Examination Council, http://www.ffiec.gov (last member agencies listed above and the State Liaison 99 The FFIEC is a ‘‘formal interagency body visited Jan. 26, 2016). Committee ‘‘and to make recommendations to 100 15 U.S.C. 1691c. empowered to prescribe uniform principles, promote uniformity in the supervision of financial

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The GIPSA, the SEC, and the SBA characteristics, including race, national implementing regulation, Regulation C, reported that they received no origin, and marital status. The CFPB please see the Rulemaking section of complaints based on ECOA or referred eight matters to the DOJ during this report (Section 4). Regulation B in 2015. In 2015, the DOT 2015, finding discrimination in credit reported that it received a ‘‘small transactions on the following prohibited 9. Conclusion number of consumer inquiries or bases: Race, color, national origin, age, In this, our fourth Fair Lending Report complaints concerning credit matters receipt of public assistance income, sex, to Congress, we outline our work in possibly covered by ECOA,’’ which it and marital status. furtherance of our Congressional ‘‘processed informally.’’ The FTC is an 8.3 Reporting on the Home Mortgage enforcement agency and does not mandate to ensure fair, equitable, and Disclosure Act conduct compliance examinations. nondiscriminatory access to credit. Our The CFPB’s annual HMDA reporting multipronged approach uses every tool 8.2 Referrals to the Department of requirement calls for the CFPB, in at our disposal—supervision, Justice consultation with the Department of enforcement, rulemaking, outreach, In 2015, the FFIEC agencies including Housing and Urban Development research, data-driven prioritization, the CFPB referred a total of 16 matters (HUD), to report annually on the utility interagency coordination, and more. We to the DOJ. The FDIC referred four of HMDA’s requirement that covered are proud to present this report as we matters to the DOJ. These matters lenders itemize in order to disclose the continue to fulfill our Congressional alleged discriminatory treatment of number and dollar amount of certain mandate as well as the Bureau’s mission persons in credit transactions due to mortgage loans and applications, to help consumer finance markets work protected characteristics, including race, grouped according to various by making rules more effective, by 101 national origin, marital status and characteristics. The CFPB, in consistently and fairly enforcing these receipt of public assistance income. The consultation with HUD, finds that rules, and by empowering consumers to FRB referred four matters to the DOJ. itemization and tabulation of these data take more control over their economic These matters alleged discriminatory further the purposes of HMDA. For lives. treatment of persons in credit more information on the Bureau’s transactions due to protected proposed amendments to HMDA’s Appendix A: Defined Terms

Term Definition

Bureau ...... The Consumer Financial Protection Bureau. CFPB ...... The Consumer Financial Protection Bureau. CMS ...... Compliance Management System. Dodd-Frank Act ...... The Dodd-Frank Wall Street Reform and Consumer Protection Act. DOJ ...... The U.S. Department of Justice. DOT ...... The U.S. Department of Transportation. ECOA ...... The Equal Credit Opportunity Act. FCA ...... Farm Credit Administration. FDIC ...... The U.S. Federal Deposit Insurance Corporation. Federal Reserve Board ...... The U.S. Board of Governors of the Federal Reserve System. FFIEC ...... The U.S. Federal Financial Institutions Examination Council—the FFIEC member agencies are the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), the National Credit Union Administration (NCUA), the Office of the Comptroller of the Currency (OCC), and the Consumer Financial Protection Bureau (CFPB). The State Liaison Committee was added to FFIEC in 2006 as a voting member. FRB ...... The U.S. Board of Governors of the Federal Reserve System. FTC ...... The U.S. Federal Trade Commission. GIPSA ...... Grain Inspection, Packers and Stockyards Administration (GIPSA) of the U.S. Department of Agriculture. HMDA ...... The Home Mortgage Disclosure Act. HUD ...... The U.S. Department of Housing and Urban Development. LEP ...... Limited English Proficiency. LGBT ...... Lesbian, gay, bisexual and transgender. NCUA ...... The National Credit Union Administration. OCC ...... The U.S. Office of the Comptroller of the Currency. SBA ...... Small Business Administration. SEC ...... U.S. Securities and Exchange Commission.

[2]. Regulatory Requirements 553(b). Because no notice of proposed collections of information requiring This Fair Lending Report of the rulemaking is required, the Regulatory OMB approval under the Paperwork Consumer Financial Protection Bureau Flexibility Act does not require an Reduction Act, 44 U.S.C. 3501, et seq. summarizes existing requirements initial or final regulatory flexibility Dated: April 29, 2016. analysis. 5 U.S.C. 603(a), 604(a). The under the law, and summarizes findings Richard Cordray, made in the course of exercising the Bureau has determined that this Fair Bureau’s supervisory and enforcement Lending Report does not impose any Director, Bureau of Consumer Financial Protection. authority. It is therefore exempt from new or revise any existing notice and comment rulemaking recordkeeping, reporting, or disclosure [FR Doc. 2016–11138 Filed 5–11–16; 8:45 am] requirements under the Administrative requirements on covered entities or BILLING CODE 4810–AM–P Procedure Act pursuant to 5 U.S.C. members of the public that would be

101 See 12 U.S.C. 2807.

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CONSUMER PRODUCT SAFETY and Airspace Surveillance to Support ADDRESSES: To access and review all the COMMISSION A2/AD Operations (ASV). In accordance documents related to the information with 5 U.S.C. 552b, as amended, and 41 collection listed in this notice, please Sunshine Act Meetings Notice CFR 102–3.155, a number of sessions of use http://www.regulations.gov by the USAF SAB Summer Board meeting searching the Docket ID number ED– TIME AND DATE: Wednesday May 18, will be closed to the general public 2016–ICCD–0055. Comments submitted 2016, 2:00 p.m.–4:00 p.m. because they will discuss classified in response to this notice should be PLACE: Hearing Room 420, Bethesda information and matters covered by submitted electronically through the Towers, 4330 East West Highway, Section 552b of Title 5, United States Federal eRulemaking Portal at http:// Bethesda, Maryland. Code, subsection (c), subparagraph (1). www.regulations.gov by selecting the STATUS: Commission Meeting—Open to Any member of the public that wishes Docket ID number or via postal mail, the Public. to attend this meeting or provide input commercial delivery, or hand delivery. to the USAF SAB must contact the SAB Please note that comments submitted by Matter To Be Considered meeting organizer at the phone number fax or email and those submitted after Decisional Matter: Fiscal Year 2016 or email address listed in this the comment period will not be Midyear Review and Proposed announcement at least five working accepted. Written requests for Operating Plan Adjustments days prior to the meeting date. Please information or comments submitted by A live webcast of the Meeting can be ensure that you submit your written postal mail or delivery should be viewed at www.cpsc.gov/live. statement in accordance with 41 CFR addressed to the Director of the CONTACT PERSON FOR MORE INFORMATION: 102–3.140(c) and section 10(a)(3) of the Information Collection Clearance Todd A. Stevenson, Office of the Federal Advisory Committee Act. Division, U.S. Department of Education, Secretary, U.S. Consumer Product Statements being submitted in response 400 Maryland Avenue SW., LBJ, Room Safety Commission, 4330 East West to the agenda mentioned in this notice 2E–103, Washington, DC 20202–4537. Highway, Bethesda, MD 20814, (301) must be received by the SAB meeting FOR FURTHER INFORMATION CONTACT: For 504–7923. organizer at least five calendar days specific questions related to collection prior to the meeting commencement Dated: May 10, 2016. activities, please contact Julie Warner, date. The SAB meeting organizer will 202–453–6043. Todd A. Stevenson, review all timely submissions and Secretariat. respond to them prior to the start of the SUPPLEMENTARY INFORMATION: The [FR Doc. 2016–11341 Filed 5–10–16; 4:15 pm] meeting identified in this noice. Written Department of Education (ED), in BILLING CODE 6355–01–P statements received after this date may accordance with the Paperwork not be considered by the SAB until the Reduction Act of 1995 (PRA) (44 U.S.C. next scheduled meeting. 3506(c)(2)(A)), provides the general DEPARTMENT OF DEFENSE FOR FURTHER INFORMATION CONTACT: The public and Federal agencies with an SAB meeting organizer, Major Mike opportunity to comment on proposed, Department of the Air Force Rigoni at [email protected] revised, and continuing collections of or 240–612–5504, United States Air information. This helps the Department U.S. Air Force Scientific Advisory Force Scientific Advisory Board, 1500 assess the impact of its information Board Notice of Meeting West Perimeter Road, Ste. #3300, Joint collection requirements and minimize the public’s reporting burden. It also AGENCY: Department of the Air Force, Base Andrews, MD 20762. helps the public understand the Air Force Scientific Advisory Board, Henry Williams, Department’s information collection DOD. Acting Air Force Federal Register Liaison requirements and provide the requested ACTION: Meeting notice. Officer. data in the desired format. ED is SUMMARY: Under the provisions of the [FR Doc. 2016–11176 Filed 5–11–16; 8:45 am] soliciting comments on the proposed Federal Advisory Committee Act of BILLING CODE 5001–10–P information collection request (ICR) that 1972 (5 U.S.C., Appendix, as amended), is described below. The Department of the Government in the Sunshine Act of Education is especially interested in 1976 (5 U.S.C. 552b, as amended), and DEPARTMENT OF EDUCATION public comment addressing the 41 CFR 102–3.150, the Department of following issues: (1) Is this collection [Docket No.: ED–2016–ICCD–0055] Defense announces that the United necessary to the proper functions of the States Air Force (USAF) Scientific Department; (2) will this information be Agency Information Collection processed and used in a timely manner; Advisory Board (SAB) Summer Board Activities; Comment Request; Study of meeting will take place on 15 June 2016 (3) is the estimate of burden accurate; Digital Learning Resources for (4) how might the Department enhance at the Arnold & Mabel Beckman Center, Instructing English Learner Students located at 100 Academy Drive in Irvine, the quality, utility, and clarity of the CA 92617. The meeting will occur from AGENCY: Office of Planning, Evaluation information to be collected; and (5) how 8:00 a.m.–4:00 p.m. on Wednesday, 15 and Policy Development (OPEPD), might the Department minimize the June 2016. The session that will be open Department of Education (ED). burden of this collection on the respondents, including through the use to the general public will be held from ACTION: Notice. 8:30 a.m. to 9:00 a.m. on 15 June 2016. of information technology. Please note The purpose of this Air Force Scientific SUMMARY: In accordance with the that written comments received in Advisory Board quarterly meeting is to Paperwork Reduction Act of 1995 (44 response to this notice will be finalize FY16 SAB studies, which U.S.C. chapter 3501 et seq.), ED is considered public records. consist of: Data Analytics to Support proposing a new information collection. Title of Collection: Study of Digital Operational Decision Making (DAN), DATES: Interested persons are invited to Learning Resources for Instructing Responding to Uncertain or Adaptive submit comments on or before July 11, English Learner Students. Threats in Electronic Warfare (AEW), 2016. OMB Control Number: 1875–NEW.

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Type of Review: A new information Information Collection Clearance Dated: May 9, 2016. collection. Division, U.S. Department of Education, Kate Mullan, Respondents/Affected Public: State, 400 Maryland Avenue SW., LBJ, Room Acting Director, Information Collection Local, and Tribal Governments. 2E–103, Washington, DC 20202–4537. Clearance Division, Office of the Chief Privacy Total Estimated Number of Annual FOR FURTHER INFORMATION CONTACT: For Officer, Office of Management. Responses: 3,540. specific questions related to collection [FR Doc. 2016–11195 Filed 5–11–16; 8:45 am] Total Estimated Number of Annual activities, please contact Valerie BILLING CODE 4000–01–P Burden Hours: 2,657. Sherrer, 202–377–3547. Abstract: This study will examine the SUPPLEMENTARY INFORMATION: The use of digital learning resources (DLRs) Department of Education (ED), in DEPARTMENT OF EDUCATION to support the English language accordance with the Paperwork [Docket No.: ED–2016–ICCD–0054] acquisition and academic achievement Reduction Act of 1995 (PRA) (44 U.S.C. of English learners (ELs) in K–12 3506(c)(2)(A)), provides the general Agency Information Collection education. The goal of this study is to public and Federal agencies with an Activities; Comment Request; provide an understanding of the current opportunity to comment on proposed, Evaluation of the ESSA Title I, Part D, use of DLRs for instructing EL students revised, and continuing collections of Neglected or Delinquent Programs in order to inform further research and information. This helps the Department policy development efforts. assess the impact of its information AGENCY: Office of Planning, Evaluation and Policy Development (OPEPD), Dated: May 9, 2016. collection requirements and minimize Department of Education (ED). Kate Mullan, the public’s reporting burden. It also ACTION: Notice. Acting Director, Information Collection helps the public understand the Department’s information collection Clearance Division, Office of the Chief Privacy SUMMARY: In accordance with the requirements and provide the requested Officer, Office of Management. Paperwork Reduction Act of 1995 (44 data in the desired format. ED is [FR Doc. 2016–11194 Filed 5–11–16; 8:45 am] U.S.C. chapter 3501 et seq.), ED is soliciting comments on the proposed BILLING CODE 4000–01–P proposing a new information collection. information collection request (ICR) that is described below. The Department of DATES: Interested persons are invited to DEPARTMENT OF EDUCATION Education is especially interested in submit comments on or before July 11, public comment addressing the 2016. [Docket No.: ED–2016–ICCD–0027] following issues: (1) Is this collection ADDRESSES: To access and review all the documents related to the information Agency Information Collection necessary to the proper functions of the collection listed in this notice, please Activities; Submission to the Office of Department; (2) will this information be use http://www.regulations.gov by Management and Budget for Review processed and used in a timely manner; searching the Docket ID number ED– and Approval; Comment Request; (3) is the estimate of burden accurate; (4) how might the Department enhance 2016–ICCD–0054. Comments submitted National Student Loan Data System the quality, utility, and clarity of the in response to this notice should be (NSLDS) information to be collected; and (5) how submitted electronically through the AGENCY: Federal Student Aid (FSA), might the Department minimize the Federal eRulemaking Portal at http:// Department of Education (ED). burden of this collection on the www.regulations.gov by selecting the ACTION: Notice. respondents, including through the use Docket ID number or via postal mail, of information technology. Please note commercial delivery, or hand delivery. SUMMARY: In accordance with the that written comments received in Please note that comments submitted by Paperwork Reduction Act of 1995 (44 response to this notice will be fax or email and those submitted after U.S.C. chapter 3501 et seq.), ED is considered public records. the comment period will not be proposing a revision of an existing Title of Collection: National Student accepted. Written requests for information collection. Loan Data System (NSLDS). information or comments submitted by DATES: Interested persons are invited to OMB Control Number: 1845–0035. postal mail or delivery should be Type of Review: A revision of an submit comments on or before June 13, addressed to the Director of the existing information collection. 2016. Information Collection Clearance Respondents/Affected Public: State, Division, U.S. Department of Education, ADDRESSES: To access and review all the Local, and Tribal Governments; Private documents related to the information 400 Maryland Avenue SW., LBJ, Room Sector. 2E–103, Washington, DC 20202–4537. collection listed in this notice, please Total Estimated Number of Annual use http://www.regulations.gov by Responses: 28,188. FOR FURTHER INFORMATION CONTACT: For searching the Docket ID number ED– Total Estimated Number of Annual specific questions related to collection 2016–ICCD–0027. Comments submitted Burden Hours: 60,798. activities, please contact Michael Fong, in response to this notice should be Abstract: The United States 202–401–7462. submitted electronically through the Department of Education will collect SUPPLEMENTARY INFORMATION: The Federal eRulemaking Portal at http:// data through the National Student Loan Department of Education (ED), in www.regulations.gov by selecting the Data System from Federal Perkins Loan accordance with the Paperwork Docket ID number or via postal mail, holders (or their servicers) and Guaranty Reduction Act of 1995 (PRA) (44 U.S.C. commercial delivery, or hand delivery. Agencies (GA) about Federal Perkins, 3506(c)(2)(A)), provides the general Please note that comments submitted by Federal Family Education, and William public and Federal agencies with an fax or email and those submitted after D. Ford Direct Student Loans to be used opportunity to comment on proposed, the comment period will not be to manage the federal student loan revised, and continuing collections of accepted. Written requests for programs, develop policy, and information. This helps the Department information or comments submitted by determine eligibility for programs under assess the impact of its information postal mail or delivery should be title IV of the Higher Education Act of collection requirements and minimize addressed to the Director of the 1965, as amended (HEA). the public’s reporting burden. It also

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helps the public understand the DEPARTMENT OF ENERGY notice by the Commission, unless the Department’s information collection Commission orders otherwise. requirements and provide the requested Federal Energy Regulatory If the project is not subject to section data in the desired format. ED is Commission 15 of the FPA, notice is hereby given soliciting comments on the proposed that the licensee, Turlock Irrigation information collection request (ICR) that [Project No. 2299–000] District and Modesto Irrigation District, is described below. The Department of is authorized to continue operation of Turlock Irrigation District; Modesto the Don Pedro Hydroelectric Project, Education is especially interested in Irrigation District; Notice of public comment addressing the until such time as the Commission acts Authorization for Continued Project on its application for a subsequent following issues: (1) Is this collection Operation necessary to the proper functions of the license. Department; (2) will this information be On April 28, 2014 Turlock Irrigation Dated: May 5, 2016. processed and used in a timely manner; District and Modesto Irrigation District, Kimberly D. Bose, (3) is the estimate of burden accurate; licensees for the Don Pedro Secretary. Hydroelectric Project, filed an (4) how might the Department enhance [FR Doc. 2016–11221 Filed 5–11–16; 8:45 am] Application for a New License pursuant the quality, utility, and clarity of the BILLING CODE 6717–01–P information to be collected; and (5) how to the Federal Power Act (FPA) and the Commission’s regulations thereunder. might the Department minimize the The Don Pedro Hydroelectric Project burden of this collection on the DEPARTMENT OF ENERGY facilities are located on the Tuolumne respondents, including through the use River in Tuolumne County, California. Federal Energy Regulatory of information technology. Please note The license for Project No. 2299 was Commission that written comments received in issued for a period ending April 30, response to this notice will be 2016. Section 15(a)(1) of the FPA, 16 [Docket No. RP16–618–000] considered public records. U.S.C. 808(a)(1), requires the Algonquin Gas Transmission, LLC; Commission, at the expiration of a Title of Collection: Evaluation of the Supplemental Notice of Technical license term, to issue from year-to-year ESSA Title I, Part D, Neglected or Conference Delinquent Programs. an annual license to the then licensee under the terms and conditions of the OMB Control Number: 1875–NEW. As announced in the Notice of prior license until a new license is Technical Conference issued on April Type of Review: A new information issued, or the project is otherwise 15, 2016 in the above-captioned collection. disposed of as provided in section 15 or proceeding, a technical conference will Respondents/Affected Public: State, any other applicable section of the FPA. be held in this proceeding on Monday, Local, and Tribal Governments. If the project’s prior license waived the May 9, 2016, beginning at 10:00 a.m. applicability of section 15 of the FPA, Total Estimated Number of Annual and ending at approximately 3:30 p.m., then, based on section 9(b) of the Responses: 502. at the Federal Energy Regulatory Administrative Procedure Act, 5 U.S.C. Commission, 888 First Street, NE., Total Estimated Number of Annual 558(c), and as set forth at 18 CFR Washington, DC 20426. The purpose of Burden Hours: 392. 16.21(a), if the licensee of such project the technical conference is to examine Abstract: The purpose of this study is has filed an application for a subsequent the issues raised in the protests and to examine how state agencies, school license, the licensee may continue to comments regarding the February 19, districts, and juvenile justice and child operate the project in accordance with 2016 filing made by Algonquin Gas welfare facilities implement education the terms and conditions of the license Transmission, LLC (Algonquin). In that and transition programs for youth who after the minor or minor part license filing, Algonquin proposed to exempt are neglected or delinquent (N or D) expires, until the Commission acts on from the capacity release bidding its application. If the licensee of such a under the Elementary and Secondary requirements certain types of capacity project has not filed an application for Education Act (ESEA), as amended by releases of firm transportation by a subsequent license, then it may be the Every Student Succeeds Act (ESSA), electric distribution companies that are required, pursuant to 18 CFR 16.21(b), Title I, Part D. The information will be participating in state-regulated electric to continue project operations until the reliability programs.1 Issues to be used by ED to produce and disseminate Commission issues someone else a examined at the technical conference a report detailing how state agencies, license for the project or otherwise include concerns raised regarding the school districts, and juvenile justice and orders disposition of the project. basis and need for the waiver. child welfare facilities implement If the project is subject to section 15 The agenda for this technical education and transition programs for of the FPA, notice is hereby given that conference is attached. Due to the youth who are neglected or delinquent an annual license for Project No. 2299 number of parties requesting to make (N or D). is issued to the licensee for a period presentations, each presentation will be Dated: May 9, 2016. effective May 1, 2016 through April 30, limited to fifteen minutes to provide Kate Mullan, 2017 or until the issuance of a new sufficient time for discussion. We have license for the project or other allotted time between each presentation Acting Director, Information Collection disposition under the FPA, whichever Clearance Division, Office of the Chief Privacy for questions and comments from staff, comes first. If issuance of a new license Officer, Office of Management. panelists, and the audience. Parties may (or other disposition) does not take file in this docket longer presentations [FR Doc. 2016–11193 Filed 5–11–16; 8:45 am] place on or before April 30, 2017, notice or other materials prior to the technical BILLING CODE 4000–01–P is hereby given that, pursuant to 18 CFR conference. A schedule for post- 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed 1 Algonquin Gas Transmission, LLC, 154 FERC ¶ automatically without further order or 61,269 (2016).

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technical comments will be established kilovolt (kV) transmission line DEPARTMENT OF ENERGY at the technical conference. interconnecting with the existing For more information about this Blachly-Lane Electric Cooperative Federal Energy Regulatory technical conference, please contact transmission line; and (8) appurtenant Commission Anna Fernandez at Anna.Fernandez@ facilities. The estimated annual [Docket No. PF16–4–000] ferc.gov or (202) 502–6682. For generation of the Eagle Creek Project information related to logistics, please would be 50 gigawatt-hours. Columbia Gas Transmission, LLC; contact Sarah McKinley at Notice of Intent To Prepare an Applicant Contact: Mr. Mark A. [email protected] or (202) 502– Environmental Assessment for the 8368. Mikkelsen, 275 Knight Avenue, Eugene, Planned B-System Project and Oregon 97404; phone: (541) 520–2233. Dated: May 5, 2016. Request for Comments on FERC Contact: Karen Sughrue; phone: Kimberly D. Bose, Environmental Issues (202) 502–8556. Secretary. The staff of the Federal Energy [FR Doc. 2016–11222 Filed 5–11–16; 8:45 am] Deadline for filing comments, motions Regulatory Commission (FERC or BILLING CODE 6717–01–P to intervene, competing applications Commission) will prepare an (without notices of intent), or notices of environmental assessment (EA) that will intent to file competing applications: 60 discuss the environmental impacts of DEPARTMENT OF ENERGY days from the issuance of this notice. the B-System Project involving Competing applications and notices of abandonment, construction, and Federal Energy Regulatory intent must meet the requirements of 18 operation of facilities by Columbia Gas Commission CFR 4.36. Transmission, LLC (Columbia) in [Project No. 14769–000] The Commission strongly encourages Fairfield and Franklin Counties, Ohio. electronic filing. Please file comments, The Commission will use this EA in its decision-making process to determine Green Canyon Energy, LLC; Notice of motions to intervene, notices of intent, Preliminary Permit Application whether the project is in the public and competing applications using the Accepted for Filing and Soliciting convenience and necessity. Commission’s eFiling system at http:// Comments, Motions To Intervene, and This notice announces the opening of Competing Applications www.ferc.gov/docs-filing/efiling.asp. the scoping process the Commission Commenters can submit brief comments will use to gather input from the public On March 14, 2016, Green Canyon up to 6,000 characters, without prior and interested agencies on the project. Energy, LLC filed an application for a registration, using the eComment system You can make a difference by providing preliminary permit, pursuant to section at http://www.ferc.gov/docs-filing/ us with your specific comments or 4(f) of the Federal Power Act (FPA), ecomment.asp. You must include your concerns about the project. Your proposing to study the feasibility of the name and contact information at the end comments should focus on the potential Eagle Creek Hydroelectric Project (Eagle of your comments. For assistance, environmental effects, reasonable Creek Project or project) to be located on please contact FERC Online Support at alternatives, and measures to avoid or Eagle Creek, in Lane County, Oregon. [email protected], (866) lessen environmental impacts. Your The proposed project boundary will 208–3676 (toll free), or (202) 502–8659 input will help the Commission staff occupy approximately 14.5 acres of (TTY). In lieu of electronic filing, please determine what issues they need to federal land within the Willamette send a paper copy to: Secretary, Federal evaluate in the EA. To ensure that your National Forest. The sole purpose of a Energy Regulatory Commission, 888 comments are timely and properly preliminary permit, if issued, is to grant First Street NE., Washington, DC 20426. recorded, please send your comments so the permit holder priority to file a The first page of any filing should that the Commission receives them in license application during the permit include docket number P–14769–000. Washington, DC on or before June 6, term. A preliminary permit does not 2016. authorize the permit holder to perform More information about this project, If you sent comments on this project any land-disturbing activities or including a copy of the application, can to the Commission before the opening of otherwise enter upon lands or waters be viewed or printed on the ‘‘eLibrary’’ this docket on March 10, 2016, you will owned by others without the owners’ link of Commission’s Web site at http:// need to file those comments in Docket express permission. www.ferc.gov/docs-filing/elibrary.asp. No. PF16–4–000 to ensure they are The proposed project would consist of Enter the docket number (P–14769) in considered as part of this proceeding. the following new features: (1) A 40- the docket number field to access the This notice is being sent to the foot-long, 9.5-foot-high concrete document. For assistance, contact FERC Commission’s current environmental diversion weir traversing Eagle Creek; Online Support. mailing list for this project. State and (2) an approximately 0.7 acre-foot local government representatives should Dated: May 5, 2016. impoundment; (3) an approximately notify their constituents of this planned 11,470-foot-long, 36-inch-diameter Kimberly D. Bose, project and encourage them to comment polyvinyl chloride pipe penstock; (4) a Secretary. on their areas of concern. 50-foot-long, 40-foot-wide concrete [FR Doc. 2016–11220 Filed 5–11–16; 8:45 am] If you are a landowner receiving this powerhouse; (5) one Pelton turbine/ BILLING CODE 6717–01–P notice, a pipeline company generator with a total installed capacity representative may contact you about of 7.0-megawatts; (6) a tailrace the acquisition of an easement to comprised of a 50-foot-long, 60-inch construct, operate, and maintain the steel pipe and a 350-foot-long and 25- planned facilities. The company would foot-wide rip-rapped channel seek to negotiate a mutually acceptable discharging flows from the powerhouse agreement. However, if the Commission back to Eagle Creek; (7) an approves the project, that approval approximately 3,960-foot-long, 12.4- conveys with it the right of eminent

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domain. Therefore, if easement regulations and meet current and future notice, the Commission requests public negotiations fail to produce an service requirements. comments on the scope of the issues to agreement, the pipeline company could The B-System Project would: address in the EA. We will consider all initiate condemnation proceedings • Abandon in place approximately filed comments during the preparation where compensation would be 17.5 miles of 20-inch-diameter pipeline of the EA. determined in accordance with state and remove two associated mainline In the EA we will discuss impacts that law. valves (mileposts 7.7 and 10.9) on could occur as a result of the A fact sheet prepared by the FERC Columbia’s Line B–105; construction and operation of the • entitled ‘‘An Interstate Natural Gas construct approximately 14.0 miles planned project under these general Facility On My Land? What Do I Need of 20-inch-diameter replacement headings: To Know?’’ is available for viewing on pipeline, and construct one new bi- • Geology and soils; 1 the FERC Web site (www.ferc.gov). This directional pig launcher/receiver • land use; fact sheet addresses a number of (milepost 0.0) and mainline valve • water resources, fisheries, and typically asked questions, including the (milepost 7.0) on Columbia’s Line B– wetlands; 111; use of eminent domain and how to • cultural resources; participate in the Commission’s • replace approximately 0.1 mile of • vegetation and wildlife; proceedings. 4-inch-diameter pipeline on Columbia’s • Line B–121; air quality and noise; Public Participation • replace approximately 0.5 mile of • endangered and threatened species; For your convenience, there are three 4-inch-diameter pipeline on Columbia’s • public safety; and methods you can use to submit your Line B–130; and • cumulative impacts. comments to the Commission. The • construct approximately 7.6 miles We will also evaluate possible Commission encourages electronic filing of new 20-inch-diameter pipeline (‘‘Line alternatives to the planned project or of comments and has expert staff K–270’’) connecting Columbia’s K- portions of the project, and make available to assist you at (202) 502–8258 System to its B-System, one pig recommendations on how to lessen or or [email protected]. Please carefully launcher and tie-in piping (milepost avoid impacts on the various resource follow these instructions so that your 0.0), and one pig receiver, tie-in piping, areas. comments are properly recorded. gas heater, and regulation facility Although no formal application has (1) You can file your comments (milepost 7.6). been filed, we have already initiated our electronically using the eComment The general location of the project NEPA review under the Commission’s feature on the Commission’s Web site facilities is shown in appendix 1.2 pre-filing process. The purpose of the (www.ferc.gov) under the link to Land Requirements for Construction pre-filing process is to encourage early Documents and Filings. This is an easy involvement of interested stakeholders method for submitting brief, text-only Columbia’s planned abandonment and to identify and resolve issues before comments on a project; and construction activities would the FERC receives an application. As (2) You can file your comments disturb about 387.6 acres of land. part of our pre-filing review, we have electronically by using the eFiling Following construction, Columbia begun to contact some federal and state feature on the Commission’s Web site would utilize and maintain about 147.5 agencies to discuss their involvement in (www.ferc.gov) under the link to acres for permanent operation of the the scoping process and the preparation Documents and Filings. With eFiling, new and replacement facilities. of the EA. you can provide comments in a variety The EA Process The EA will present our independent of formats by attaching them as a file The National Environmental Policy analysis of the issues. The EA will be with your submission. New eFiling available in the public record through users must first create an account by Act (NEPA) requires the Commission to take into account the environmental eLibrary. Depending on the comments clicking on ‘‘eRegister.’’ If you are filing received during the scoping process, we a comment on a particular project, impacts that could result from an action whenever it considers the issuance of a may also publish and distribute the EA please select ‘‘Comment on a Filing’’ as to the public for an allotted comment the filing type; or Certificate of Public Convenience and Necessity. NEPA also requires us 3 to period. We will consider all comments (3) You can file a paper copy of your on the EA before we make our comments by mailing them to the discover and address concerns the public may have about proposals. This recommendations to the Commission. following address. Be sure to reference To ensure we have the opportunity to the project docket number (PF16–4–000) process is referred to as scoping. The main goal of the scoping process is to consider and address your comments, with your submission: Kimberly D. please carefully follow the instructions Bose, Secretary, Federal Energy focus the analysis in the EA on the important environmental issues. By this in the Public Participation section, Regulatory Commission, 888 First Street beginning on page 2. NE., Room 1A, Washington, DC 20426. 1 A ‘‘pig’’ is a tool that the pipeline company With this notice, we are asking Summary of the Planned Project inserts into and pushes through the pipeline for agencies with jurisdiction by law and/ cleaning the pipeline, conducting internal or special expertise with respect to the Columbia plans to abandon pipeline inspections, or other purposes. environmental issues related to this and appurtenant aboveground facilities 2 The appendices referenced in this notice will project to formally cooperate with us in as well as construct replacement and not appear in the Federal Register. Copies of the the preparation of the EA.4 Agencies new pipeline and appurtenant appendices were sent to all those receiving this notice in the mail and are available at www.ferc.gov that would like to request cooperating aboveground facilities in Franklin and using the link called ‘‘eLibrary’’ or from the agency status should follow the Fairfield Counties, Ohio. The project Commission’s Public Reference Room, 888 First instructions for filing comments would replace aging infrastructure and Street NE., Washington, DC 20426, or call (202) construct new facilities as a part of 502–8371. For instructions on connecting to eLibrary, refer to the last page of this notice. 4 The Council on Environmental Quality Columbia’s proposed Modernization II 3 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the regulations addressing cooperating agency Program, which would allow Columbia environmental staff of the Commission’s Office of responsibilities are at Title 40, Code of Federal to achieve compliance with emerging Energy Projects. Regulations, Part 1501.6.

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provided under the Public Participation the mailing list, please return the Dated: May 6, 2016. section of this notice. attached Information Request (appendix Nathaniel J. Davis, Sr., Consultations Under Section 106 of the 2). Deputy Secretary. National Historic Preservation Act Becoming an Intervenor [FR Doc. 2016–11192 Filed 5–11–16; 8:45 am] In accordance with the Advisory BILLING CODE 6717–01–P Council on Historic Preservation’s Once Columbia files its application with the Commission, you may want to implementing regulations for section DEPARTMENT OF ENERGY 106 of the National Historic become an ‘‘intervenor’’ which is an Preservation Act, we are using this official party to the Commission’s Federal Energy Regulatory notice to initiate consultation with the proceeding. Intervenors play a more Commission applicable State Historic Preservation formal role in the process and are able Office(s), and to solicit their views and to file briefs, appear at hearings, and be [Docket No. EL00–95–288] heard by the courts if they choose to those of other government agencies, San Diego Gas & Electric Company v. interested Indian tribes, and the public appeal the Commission’s final ruling. Sellers of Energy and Ancillary on the project’s potential effects on An intervenor formally participates in 5 Services Into Markets Operated by the historic properties. We will define the the proceeding by filing a request to California Independent System project-specific Area of Potential Effects intervene. Motions to intervene are Operator Corporation and the (APE) in consultation with the SHPO(s) more fully described at http:// California Power Exchange; Notice of as the project develops. On natural gas www.ferc.gov/resources/guides/how-to/ Compliance Filing facility projects, the APE at a minimum intervene.asp. Instructions for becoming encompasses all areas subject to ground an intervenor are in the ‘‘Document-less Take notice that on May 5, 2016, the disturbance (examples include Intervention Guide’’ under the ‘‘e-filing’’ California Power Exchange Corporation construction right-of-way, contractor/ link on the Commission’s Web site. submitted its Refund Rerun Compliance pipe storage yards, compressor stations, Please note that the Commission will Filing pursuant to the Federal Energy Regulatory Commission’s (Commission) and access roads). Our EA for this not accept requests for intervenor status project will document our findings on July 15, 2011 Order Accepting at this time. You must wait until the the impacts on historic properties and Compliance Filings and Providing Commission receives a formal summarize the status of consultations Guidance. 1 application for the project. under section 106. Any person desiring to intervene or to Additional Information protest this filing must file in Environmental Mailing List accordance with Rules 211 and 214 of The environmental mailing list Additional information about the the Commission’s Rules of Practice and includes federal, state, and local project is available from the Procedure (18 CFR 385.211, 385.214). government representatives and Commission’s Office of External Affairs, Protests will be considered by the agencies; elected officials; at (866) 208–FERC, or on the FERC Web Commission in determining the environmental and public interest site (www.ferc.gov) using the eLibrary appropriate action to be taken, but will groups; Native American Tribes; other link. Click on the eLibrary link, click on not serve to make protestants parties to interested parties; and local libraries ‘‘General Search’’ and enter the docket the proceeding. Any person wishing to and newspapers. This list also includes number, excluding the last three digits become a party must file a notice of all affected landowners (as defined in in the Docket Number field (i.e., PF16– intervention or motion to intervene, as the Commission’s regulations) who are 4). Be sure you have selected an appropriate. Such notices, motions, or potential right-of-way grantors, whose appropriate date range. For assistance, protests must be filed on or before the property may be used temporarily for please contact FERC Online Support at comment date. On or before the project purposes, or who own homes [email protected] or toll free comment date, it is not necessary to within certain distances of aboveground at (866) 208–3676, or for TTY, contact serve motions to intervene or protests facilities, and anyone who submits (202) 502–8659. The eLibrary link also on persons other than the Applicant. comments on the project. We will The Commission encourages provides access to the texts of formal update the environmental mailing list as electronic submission of protests and the analysis proceeds to ensure that we documents issued by the Commission, interventions in lieu of paper using the send the information related to this such as orders, notices, and ‘‘eFiling’’ link at http://www.ferc.gov. environmental review to all individuals, rulemakings. Persons unable to file electronically organizations, and government entities In addition, the Commission offers a should submit an original and 5 copies interested in and/or potentially affected free service called eSubscription which of the protest or intervention to the by the planned project. allows you to keep track of all formal Federal Energy Regulatory Commission, If we publish and distribute the EA, issuances and submittals in specific 888 First Street NE., Washington, DC copies of the EA will be sent to the dockets. This can reduce the amount of 20426. environmental mailing list for public time you spend researching proceedings This filing is accessible on-line at review and comment. If you would by automatically providing you with http://www.ferc.gov, using the prefer to receive a paper copy of the notification of these filings, document ‘‘eLibrary’’ link and is available for document instead of the CD version or summaries, and direct links to the review in the Commission’s Public would like to remove your name from documents. Go to www.ferc.gov/docs- Reference Room in Washington, DC. filing/esubscription.asp. There is an ‘‘eSubscription’’ link on the 5 The Advisory Council on Historic Preservation Web site that enables subscribers to regulations are at Title 36, Code of Federal Finally, public meetings or site visits receive email notification when a Regulations, Part 800. Those regulations define will be posted on the Commission’s document is added to a subscribed historic properties as any prehistoric or historic calendar located at www.ferc.gov/ district, site, building, structure, or object included in or eligible for inclusion in the National Register EventCalendar/EventsList.aspx along 1 San Diego Gas & Elec. Co. v. Sellers of Energy of Historic Places. with other related information. and Ancillary Servs., 136 FERC ¶ 61,036 (2011).

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docket(s). For assistance with any FERC toll-free at 1–866–208–3676 or (202) incremental 1.7 million dekatherms per Online service, please email 502–8659 (for TTY). day of year-round firm transportation [email protected], or call A copy of the EA may also be capacity to its existing southeastern (866) 208–3676 (toll free). For TTY, call accessed using this link: http:// market areas. (202) 502–8659. elibrary.ferc.gov/idmws/common/ The draft EIS assesses the potential Comment Date: 5:00 p.m. Eastern OpenNat.asp?fileID=14226917. environmental effects of the Time on May 26, 2016. You may also register online at http:// construction and operation of the project in accordance with the Dated: May 6, 2016. www.ferc.gov/docs-filing/ esubsription.asp to be notified via email requirements of the National Nathaniel J. Davis, Sr., of new filings and issuances related to Environmental Policy Act. The FERC Deputy Secretary. this or other pending projects. For staff concludes that approval of the [FR Doc. 2016–11191 Filed 5–11–16; 8:45 am] assistance, contact FERC Online project would result in some adverse BILLING CODE 6717–01–P Support. environmental impacts; however, most All comments must be filed within 30 of these impacts would be reduced to days of the date of this notice and less-than-significant levels with the DEPARTMENT OF ENERGY should reference Project No. 7518–018. implementation of Transco’s proposed mitigation and the additional measures Federal Energy Regulatory The Commission strongly encourages recommended in the draft EIS. Commission electronic filing. Please file comments using the Commission’s efiling system The U.S. Army Corps of Engineers at http://www.ferc.gov/docs-filing/ participated as a cooperating agency in [Project No. 7518–018] efiling.asp. Commenters can submit the preparation of the EIS. Cooperating brief comments up to 6,000 characters, agencies have jurisdiction by law or Erie Boulevard Hydropower, L.P. and special expertise with respect to Saint Regis Mohawk Tribe; Notice of without prior registration, using the eComment system at http:// resources potentially affected by the Availability of Environmental proposal and participate in the National Assessment www.ferc.gov/docs-filing/ ecomment.asp. You must include your Environmental Policy Act analysis. In accordance with the National name and contact information at the end Although the U.S. Army Corps of Environmental Policy Act of 1969 and of your comments. For assistance, Engineers provided input to the the Federal Energy Regulatory please contact FERC Online Support. In conclusions and recommendations Commission’s (Commission) lieu of electronic filing, please send a presented in the draft EIS, the agency regulations, 18 CFR part 380 (Order No. paper copy to: Kimberly D. Bose, will present its own conclusions and 486, 52 FR 47897), the Office of Energy Secretary, Federal Energy Regulatory recommendations in its respective Projects has reviewed Erie Boulevard Commission, 888 First Street NE., record of decision or determination for Hydropower, L.P. and Saint Regis Washington, DC 20426. the project. Mohawk Tribe’s (licensees) For further information, contact Mo The draft EIS addresses the potential Environmental Analysis, filed with the Fayyad at (202) 502–8759 or environmental effects of the Commission on April 28, 2016, [email protected]. construction and operation of about 197.7 miles of pipeline composed of the regarding the proposed surrender of Dated: May 5, 2016. project license for the Hogansburg following facilities: Kimberly D. Bose, • 183.7 miles of new 30- and 42-inch- Hydroelectric Project. The project is Secretary. diameter natural gas pipeline in located on the St Regis River in Franklin [FR Doc. 2016–11229 Filed 5–11–16; 8:45 am] Pennsylvania; County, New York. The project does not • BILLING CODE 6717–01–P 11.5 miles of new 36- and 42-inch- occupy any federal lands. diameter pipeline looping in After independent review of the Pennsylvania; licensees’ Environmental Analysis, DEPARTMENT OF ENERGY • 2.5 miles of 30-inch-diameter Commission staff has decided to adopt replacements in Virginia; and it and issue it as staff’s Environmental Federal Energy Regulatory • associated equipment and facilities. Assessment (EA). The EA analyzes the Commission The project’s proposed aboveground potential environmental impacts of facilities include two new compressor [Docket No. CP15–138–000] decommissioning project facilities, stations in Pennsylvania; additional including dam removal, and the Transcontinental Gas Pipe Line compression and related modifications surrender of the project license. The EA Company, LLC; Notice of Availability to three existing compressor stations in includes proposed mitigation measures of the Draft Environmental Impact Pennsylvania and Maryland; two new and concludes that granting the Statement for the Proposed Atlantic meter stations and three new regulator proposed surrender would not Sunrise Project stations in Pennsylvania; and minor constitute a major federal action that modifications at existing aboveground would significantly affect the quality of The staff of the Federal Energy facilities at various locations in the human environment. Regulatory Commission (FERC or Pennsylvania, Virginia, North Carolina, A copy of the EA is on file with the Commission) has prepared a draft and South Carolina to allow for bi- Commission and is available for public environmental impact statement (EIS) directional flow and the installation of inspection. The EA may be viewed on for the Atlantic Sunrise Project, supplemental odorization, odor the Commission’s Web site at http:// proposed by Transcontinental Gas Pipe detection, and/or odor masking/ www.ferc.gov using the ‘‘eLibrary’’ link. Line Company, LLC (Transco) in the deodorization equipment. Enter the docket number (P–7518) in the above-referenced docket. Transco The FERC staff mailed copies of the docket number field to access the requests authorization to expand its draft EIS to federal, state, and local document. For assistance, contact FERC existing pipeline system from the government representatives and Online Support at Marcellus Shale production area in agencies; elected officials; [email protected] or call northern Pennsylvania to deliver an environmental and public interest

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groups; Native American tribes; For your convenience, there are four with your submission. New eFiling potentially affected landowners and methods you can use to submit your users must first create an account by other interested individuals and groups; comments to the Commission. In all clicking on ‘‘eRegister.’’ If you are filing newspapers and libraries in the project instances, please reference the project a comment on a particular project, area; and parties to this proceeding. docket number (CP15–138–000) with please select ‘‘Comment on a Filing’’ as Paper copy versions of this EIS were your submission. The Commission the filing type. mailed to those specifically requesting encourages electronic filing of (3) You can file a paper copy of your them; all others received a CD version. comments and has expert staff available comments by mailing them to the In addition, the draft EIS is available for to assist you at (202) 502–8258 or following address: Kimberly D. Bose, public viewing on the FERC’s Web site [email protected]. Secretary, Federal Energy Regulatory (www.ferc.gov) using the eLibrary link. (1) You can file your comments Commission, 888 First Street NE., Room A limited number of copies are available electronically using the eComment 1A, Washington, DC 20426. for distribution and public inspection feature on the Commission’s Web site (4) In lieu of sending written or at: Federal Energy Regulatory (www.ferc.gov) under the link to electronic comments, the Commission Documents and Filings. This is an easy invites you to attend one of the public Commission, Public Reference Room, method for submitting brief, text-only comment meetings its staff will conduct 888 First Street NE., Room 2A, comments on a project. in the project area to receive comments Washington, DC 20426, (202) 502–8371. (2) You can file your comments on the draft EIS. We 1 encourage Any person wishing to comment on electronically by using the eFiling interested groups and individuals to the draft EIS may do so. To ensure feature on the Commission’s Web site attend and present oral comments on consideration of your comments on the (www.ferc.gov) under the link to the draft EIS. We will begin our sign up proposal in the final EIS, it is important Documents and Filings. With eFiling, of speakers at 6:30 p.m. All meetings that the Commission receive your you can provide comments in a variety will begin at 7:00 p.m. and are comments on or before June 27, 2016. of formats by attaching them as a file scheduled as follows:

Date Location

June 13, 2016 ...... Manheim Township High School, 115 Blue Streak Boulevard, Lancaster, PA 17601, (717) 560–3098. June 14, 2016 ...... Lebanon Valley College, Lutz Auditorium, 101 N. College Avenue, Annville, PA 17003, (717) 867–6310. June 15, 2016 ...... Bloomsburg University, Haas Center for the Arts—Mitrani Hall, 400 E. Second Street, Bloomsburg, PA 17815, (570) 389–4291. June 16, 2016 ...... Lake Lehmon High School, 1128 Old Route 115, Dallas, PA 18612, (570) 255–2705.

The Baltimore District of the U.S. Procedures (Title 18 Code of Federal (202) 502–8659. The eLibrary link also Army Corps of Engineers will Regulations Part 385.214).2 Only provides access to the texts of formal participate (jointly with FERC) in the intervenors have the right to seek documents issued by the Commission, public comment meetings to gather rehearing of the Commission’s decision. such as orders, notices, and information on this proposal to assist The Commission grants affected rulemakings. them in the review of the permit landowners and others with In addition, the Commission offers a application for the proposed activity. environmental concerns intervenor free service called eSubscription that The joint comment meetings will status upon showing good cause by allows you to keep track of all formal begin at 7:00 p.m. with a description of stating that they have a clear and direct issuances and submittals in specific our environmental review process by interest in this proceeding that no other Commission staff, after which speakers party can adequately represent. Simply dockets. This can reduce the amount of will be called. The meetings will end filing environmental comments will not time you spend researching proceedings once all speakers have provided their give you intervenor status, but you do by automatically providing you with comments or at 10:30 p.m., whichever not need intervenor status to have your notification of these filings, document comes first. Please note that there may comments considered. summaries, and direct links to the documents. Go to http://www.ferc.gov/ be a time limit of three minutes to Questions? present comments, and speakers should docs-filing/esubscription.asp. structure their comments accordingly. If Additional information about the Dated: May 5, 2016. time limits are implemented, they will project is available from the Kimberly D. Bose, be strictly enforced to ensure that as Commission’s Office of External Affairs, Secretary. many individuals as possible are given at (866) 208–FERC, or on the FERC Web an opportunity to comment. The site (www.ferc.gov) using the eLibrary [FR Doc. 2016–11223 Filed 5–11–16; 8:45 am] meetings will be recorded by a court link. Click on the eLibrary link, click on BILLING CODE 6717–01–P reporter to ensure comments are ‘‘General Search,’’ and enter the docket accurately recorded. Transcripts will be number excluding the last three digits in entered into the formal record of the the Docket Number field (i.e., CP15– Commission proceeding. 138). Be sure you have selected an Any person seeking to become a party appropriate date range. For assistance, to the proceeding must file a motion to please contact FERC Online Support at intervene pursuant to Rule 214 of the [email protected] or toll free Commission’s Rules of Practice and at (866) 208–3676; for TTY, contact

1 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the 2 See the previous discussion on the methods for environmental staff of the FERC’s Office of Energy filing comments. Projects.

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DEPARTMENT OF ENERGY a. Type of Application: Major facility at Hydro Station 2 east of Unconstructed License. Colorado City, Arizona; (3) an inline Federal Energy Regulatory b. Project No.: 12966–004. single-unit, 1–MW facility in Hildale Commission c. Date Filed: May 2, 2016. City, Utah; (4) an inline single-unit, 1.7– d. Applicant: Utah Board of Water MW facility above the Hurricane Cliffs Staff Notice of Alleged Violations Resources. forebay reservoir; (5) a 2-unit, 300–MW Take notice 1 that in a nonpublic e. Name of Project: Lake Powell (150–MW each unit) hydroelectric investigation pursuant to 18 CFR part 1b Pipeline Project. pumped storage development at (2015), the staff of the Office of f. Location: In Washington and Kane Hurricane Cliffs, with the forebay and Enforcement of the Federal Energy counties, Utah, and in Coconino and afterbay sized to provide ten hours of Regulatory Commission has preliminary Mohave counties, Arizona. The project continuous 300–MW output; (6) a determined that Saracen Energy would occupy 449 acres of federal land single-unit, 35–MW conventional Midwest, LP, violated Southwest Power managed by the Bureau of Land energy recovery generation unit built Pool, Inc.’s Open Access Transmission Management. within the Hurricane Cliffs Tariff, Attachment AE, 7.4.1(4), by g. Filed Pursuant to: Federal Power development; and (7) a single-unit, 5– submitting bids for Transmission Act, 16 U.S.C. 791(a)–825(r). MW facility at the existing Sand Hollow Congestion Rights at Electronically h. Applicant Contact: Bill Leeflang, Reservoir. Equivalent Settlement Locations Project Manager, Utah Division of Water l. Locations of the Application: A between August 2014 and March 2015. Resources; Telephone (801) 538–7293 or copy of the application is available for This Notice does not confer a right on [email protected]. review at the Commission in the Public third parties to intervene in the i. FERC Contact: Jim Fargo, (202) 502– Reference Room or may be viewed on investigation or any other right with 6095 or [email protected]. the Commission’s Web site at http:// respect to the investigation. j. This application is not ready for www.ferc.gov using the ‘‘eLibrary’’ link. Dated: May 6, 2016. environmental analysis at this time. Enter the docket number excluding the Kimberly D. Bose, k. The proposed Lake Powell Pipeline last three digits in the docket number Project would consist of: (1) 140 miles Secretary. field to access the document. For of 69-inch-diameter pipeline and assistance, please contact FERC Online [FR Doc. 2016–11224 Filed 5–11–16; 8:45 am] penstock, (2) a combined conventional BILLING CODE 6717–01–P Support at FERCOnlineSupport@ peaking and pumped storage hydro ferc.gov, (866) 208–3676 (toll free), or station, (3) four conventional in- (202) 502–8659 (TTY). A copy is also DEPARTMENT OF ENERGY pipeline hydro stations, (4) a available for inspection and conventional hydro station, and (4) reproduction at the address in item (h) Federal Energy Regulatory transmission lines. above. Commission The proposed project’s water intake would convey water from the Bureau of m. You may also register online at [Project No. 12966–004] Reclamation’s Lake Powell up to a high http://www.ferc.gov/docs-filing/ point within the Grand Staircase- esubscription.asp to be notified via Utah Board of Water Resources; email of new filings and issuances Notice of Application Tendered for Escalante National Monument, after which it would flow through a series of related to this or other pending projects. Filing With the Commission and For assistance, contact FERC Online Establishing Procedural Schedule for hydroelectric turbines, ending at Sand Hollow reservoir, near St. George, Utah. Support. Licensing and Deadline for n. Procedural Schedule: Submission of Final Amendments The energy generation components of the proposed project would include: (1) The application will be processed Take notice that the following An inline single-unit, 1-megawatt (MW) according to the following preliminary hydroelectric application has been filed facility at Hydro Station 1 in the Grand Hydro Licensing Schedule. Revisions to with the Commission and is available Staircase-Escalante National Monument; the schedule may be made as for public inspection. (2) an inline single-unit, 1.7–MW appropriate.

Milestone Target date

Notice of Acceptance/Notice of Ready for Environmental Analysis ...... January 2017. Filing of recommendations, preliminary terms and conditions ...... March 2017. Commission issues Draft Environmental Impact Statement (DEIS) ...... September 2017. Comments on DEIS ...... November 2017. Modified terms and conditions ...... January 2018. Commission issues Final EIS ...... April 2018.

o. Final amendments to the Dated: May 6, 2016. application must be filed with the Kimberly D. Bose, Commission no later than 30 days from Secretary. the issuance date of the notice of ready [FR Doc. 2016–11226 Filed 5–11–16; 8:45 am] for environmental analysis. BILLING CODE 6717–01–P

1 Enforcement of Statutes, Regulations, and Orders, 129 FERC ¶ 61,247 (2009), order on reh’g, 134 FERC ¶ 61,054 (2011).

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DEPARTMENT OF ENERGY relating to the merits of an issue that INTERVENE’’ as applicable; (2) set forth may affect the responsibilities of a in the heading the name of the applicant Federal Energy Regulatory particular resource agency, they must and the project number of the Commission also serve a copy of the document on application to which the filing [Project No. 2651–049] that resource agency. responds; (3) furnish the name, address, k. Description of Request: The and telephone number of the person Indiana Michigan Power Company; licensee proposes to revise the project’s commenting, protesting or intervening; Notice of Application Accepted for recreation plan to incorporate a and (4) otherwise comply with the Filing and Soliciting Comments, modification made in 2015 to the canoe requirements of 18 CFR 385.2001 Motions To Intervene, and Protests portage take-out. Specifically, the through 385.2005. All comments, licensee, with assistance from the City motions to intervene, or protests must Take notice that the following of Elkhart, constructed a concrete boat set forth their evidentiary basis. Any hydroelectric application has been filed loading/unloading area within the right- filing made by an intervenor must be with the Commission and is available of-way of Beardsley Avenue that enables accompanied by proof of service on all for public inspection: the take-out to function better as an persons listed in the service list a. Application Type: Recreation Plan independent boat launch. Aside from prepared by the Commission in this Amendment. the new loading/unloading area, other proceeding, in accordance with 18 CFR b. Project No: 2651–049. aspects of the current recreation plan 385.2010. c. Date Filed: April 18, 2016. would remain the same. d. Applicant: Indiana Michigan Power l. Locations of the Application: A Dated: May 6, 2016. Company. copy of the application is available for Kimberly D. Bose, e. Name of Project: Elkhart inspection and reproduction at the Secretary. Hydroelectric Project. Commission’s Public Reference Room, [FR Doc. 2016–11225 Filed 5–11–16; 8:45 am] f. Location: The project is located on located at 888 First Street NE., Room BILLING CODE 6717–01–P the St. Joseph River in the City of 2A, Washington, DC 20426, or by calling Elkhart and Elkhart County, Indiana. (202) 502–8371. This filing may also be g. Filed Pursuant to: Federal Power viewed on the Commission’s Web site at DEPARTMENT OF ENERGY Act, 16 U.S.C. 791a–825r. http://www.ferc.gov using the h. Applicant Contact: Ms. Elizabeth ‘‘eLibrary’’ link. Enter the docket Federal Energy Regulatory Parcell, Process Supervisor Senior, number excluding the last three digits in Commission Indiana Michigan Power Company, 40 the docket number field to access the Combined Notice of Filings #1 Franklin Road SW., Roanoke, VA 24011, document. You may also register online (540) 984–2441. at http://www.ferc.gov/docs-filing/ Take notice that the Commission i. FERC Contact: Mr. Kevin Anderson, esubscription.asp to be notified via received the following electric corporate (202) 502–6465, kevin.anderson@ email of new filings and issuances filings: ferc.gov. related to this or other pending projects. Docket Numbers: EC16–115–000. j. Deadline for filing comments, For assistance, call 1–866–208–3676 or motions to intervene, and protests: June Applicants: Antelope Big Sky Ranch email [email protected], for LLC. 6, 2016. TTY, call (202) 502–8659. A copy is also The Commission strongly encourages Description: Application for available for inspection and Authorization Under Section 203 of the electronic filing. Please file comments, reproduction at the address in item (h) motions to intervene, and protests using Federal Power Act for the Disposition of above. Agencies may obtain copies of Jurisdictional Facilities, Request for the Commission’s eFiling system at the application directly from the http://www.ferc.gov/docs-filing/ Expedited Consideration and applicant. Confidential Treatment of Antelope Big efiling.asp. Commenters can submit m. Individuals desiring to be included Sky Ranch LLC. brief comments up to 6,000 characters, on the Commission’s mailing list should Filed Date: 5/6/16. without prior registration, using the so indicate by writing to the Secretary eComment system at http:// Accession Number: 20160506–5104. of the Commission. Comments Due: 5 p.m. ET 5/27/16. www.ferc.gov/docs-filing/ n. Comments, Protests, or Motions to ecomment.asp. You must include your Intervene: Anyone may submit Take notice that the Commission name and contact information at the end comments, a protest, or a motion to received the following electric rate of your comments. For assistance, intervene in accordance with the filings: please contact FERC Online Support at requirements of Rules of Practice and Docket Numbers: ER10–2721–006. [email protected], (866) Procedure, 18 CFR 385.210, .211, .214, Applicants: El Paso Electric Company. 208–3676 (toll free), or (202) 502–8659 respectively. In determining the Description: Supplement to December (TTY). In lieu of electronic filing, please appropriate action to take, the 31, 2015 Updated Market Power send a paper copy to: Secretary, Federal Commission will consider all protests or Analysis of El Paso Electric Company. Energy Regulatory Commission, 888 other comments filed, but only those Filed Date: 5/5/16. First Street NE., Washington, DC 20426. who file a motion to intervene in Accession Number: 20160505–5283. The first page of any filing should accordance with the Commission’s Comments Due: 5 p.m. ET 5/26/16. include docket number P–2651–049. Rules may become a party to the Docket Numbers: ER11–4625–002; The Commission’s Rules of Practice proceeding. Any comments, protests, or ER13–2169–001; ER13–1504–002; and Procedure require all intervenors motions to intervene must be received ER11–3634–002; ER10–2867–002; filing documents with the Commission on or before the specified comment date ER10–2866–001; ER10–2862–002; to serve a copy of that document on for the particular application. ER10–2861–001. each person whose name appears on the o. Filing and Service of Documents: Applicants: Colton Power L.P., Goal official service list for the project. Any filing must (1) bear in all capital Line L.P., SWG Arapahoe, LLC, KES Further, if an intervenor files comments letters the title ‘‘COMMENTS’’, Kingsburg, L.P., Valencia Power, LLC, or documents with the Commission ‘‘PROTEST’’, or ‘‘MOTION TO SWG Colorado, LLC, Harbor

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Cogeneration Co., Fountain Valley Filed Date: 5/5/16. Docket Numbers: ER16–1637–000. Power, LLC. Accession Number: 20160505–5225. Applicants: UIL Distributed Description: Amendment to March 17, Comments Due: 5 p.m. ET 5/26/16. Resources, LLC. 2016 Notice of Change in Status of the Docket Numbers: ER16–1630–000. Description: Baseline eTariff Filing: Southwest Generation Operating Applicants: Arizona Public Service Application for MBR Authority & Company, LLC public utility Company. Request for Related Waivers & Blanket subsidiaries, et al. Description: § 205(d) Rate Filing: Rate Approval to be effective 5/7/2016. Filed Date: 5/4/16. Schedule Nos. 44, 98, 211—Four Filed Date: 5/6/16. Accession Number: 20160504–5219. Corners Acquisition to be effective Accession Number: 20160506–5174. Comments Due: 5 p.m. ET 5/25/16. 7/6/2016. Comments Due: 5 p.m. ET 5/27/16. Docket Numbers: ER12–1587–002. Filed Date: 5/5/16. Docket Numbers: ER16–1638–000. Applicants: Northeastern Power Accession Number: 20160505–5226. Applicants: 4C Acquisition, LLC. Company. Comments Due: 5 p.m. ET 5/26/16. Description: Baseline eTariff Filing: Description: Compliance filing: Docket Numbers: ER16–1631–000. Baseline FERC Electric Tariff to be Informational Filing Regarding Planned Applicants: Armstrong Power, LLC, effective 7/6/2016. Transfer to be effective N/A. Calumet Energy Team, LLC, Filed Date: 5/6/16. Filed Date: 5/5/16. Northeastern Power Company, Pleasants Accession Number: 20160506–5181. Accession Number: 20160505–5216. Energy, LLC, Troy Energy, LLC. Comments Due: 5 p.m. ET 5/27/16. Comments Due: 5 p.m. ET 5/26/16. Description: Joint Request for Waiver The filings are accessible in the Docket Numbers: ER14–1218–001. of Armstrong Power, LLC, et. al. Commission’s eLibrary system by Applicants: Armstrong Power, LLC. Filed Date: 5/4/16. clicking on the links or querying the Description: Compliance filing: Accession Number: 20160504–5223. docket number. Informational Filing Regarding Planned Comments Due: 5 p.m. ET 5/25/16. Any person desiring to intervene or Transfer to be effective N/A. protest in any of the above proceedings Docket Numbers: ER16–1632–000. Filed Date: 5/5/16. must file in accordance with Rules 211 Applicants: Calumet Energy Team, Accession Number: 20160505–5217. and 214 of the Commission’s LLC. Comments Due: 5 p.m. ET 5/26/16. Regulations (18 CFR 385.211 and Description: Compliance filing: Docket Numbers: ER16–1051–000; 385.214) on or before 5:00 p.m. Eastern Informational Filing Regarding Planned ER16–1051–001. time on the specified comment date. Transfer to be effective N/A. Applicants: Graphic Packaging Protests may be considered, but Filed Date: 5/6/16. International Inc. intervention is necessary to become a Accession Number: 20160506–5091. Description: Supplement to March 1, party to the proceeding. Comments Due: 5 p.m. ET 5/27/16. 2016 and April 28, 2016 Graphic eFiling is encouraged. More detailed Packaging International Inc. tariff filing. Docket Numbers: ER16–1633–000. information relating to filing Filed Date: 5/5/16. Applicants: Pleasants Energy, LLC. requirements, interventions, protests, Accession Number: 20160505–5278. Description: Compliance filing: service, and qualifying facilities filings Comments Due: 5 p.m. ET 5/26/16. Informational Filing Regarding Planned can be found at: http://www.ferc.gov/ Docket Numbers: ER16–1454–001. Transfer to be effective N/A. docs-filing/efiling/filing-req.pdf. For Applicants: Southern California Filed Date: 5/6/16. other information, call (866) 208–3676 Edison Company. Accession Number: 20160506–5093. (toll free). For TTY, call (202) 502–8659. Comments Due: 5 p.m. ET 5/27/16. Description: Tariff Amendment: Dated: May 6, 2016. Resubmit Amended DSA w/SCE’s Docket Numbers: ER16–1634–000. Nathaniel J. Davis, Sr., Power Production Department to be Applicants: Troy Energy, LLC. effective 1/1/2016. Description: Compliance filing: Deputy Secretary. Filed Date: 5/5/16. Informational Filing Regarding Planned [FR Doc. 2016–11190 Filed 5–11–16; 8:45 am] Accession Number: 20160505–5162. Transfer to be effective N/A. BILLING CODE 6717–01–P Comments Due: 5 p.m. ET 5/26/16. Filed Date: 5/6/16. Docket Numbers: ER16–1628–000. Accession Number: 20160506–5094. DEPARTMENT OF ENERGY Applicants: Monongahela Power Comments Due: 5 p.m. ET 5/27/16. Company, Trans-Allegheny Interstate Docket Numbers: ER16–1635–000. Federal Energy Regulatory Line Company, The Potomac Edison Applicants: Arizona Public Service Commission Company, American Transmission Company. Systems, Incorporation, PJM Description: § 205(d) Rate Filing: Rate [Docket No. IC16–6–000] Interconnection, L.L.C. Schedule No. 281 to be effective Commission Information Collection Description: § 205(d) Rate Filing: 7/6/2016. Activities (FERC–725J); Comment ATSI et al submits Service Agreement Filed Date: 5/6/16. Request Nos. 4090, 4441, 4442, 4443 to be Accession Number: 20160506–5101. effective 7/4/2016. Comments Due: 5 p.m. ET 5/27/16. AGENCY: Federal Energy Regulatory Filed Date: 5/5/16. Docket Numbers: ER16–1636–000. Commission, Department of Energy. Accession Number: 20160505–5205. Applicants: Southern California ACTION: Comment request. Comments Due: 5 p.m. ET 5/26/16. Edison Company. Docket Numbers: ER16–1629–000. Description: § 205(d) Rate Filing: SUMMARY: In compliance with the Applicants: Arizona Public Service Ekdorado-Moenkopi 500kV requirements of the Paperwork Company. Transmission Line IA with APS to be Reduction Act of 1995, 44 U.S.C. Description: § 205(d) Rate Filing: effective 7/7/2016. 3507(a)(1)(D), the Federal Energy Service Agreement No. 209—Four Filed Date: 5/6/16. Regulatory Commission (Commission or Corners Acquisition to be effective Accession Number: 20160506–5124. FERC) is submitting its information 7/6/2016. Comments Due: 5 p.m. ET 5/27/16. collection FERC–725J (Definition of the

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Bulk Electric System) to the Office of • eFiling at Commission’s Web site: requirements with no changes to the Management and Budget (OMB) for http://www.ferc.gov/docs-filing/ reporting requirements. review of the information collection efiling.asp. Abstract: On December 20, 2012, the requirements. Any interested person • Mail/Hand Delivery/Courier: Commission issued Order No. 773, a may file comments directly with OMB Federal Energy Regulatory Commission, Final Rule approving NERC’s and should address a copy of those Secretary of the Commission, 888 First modifications to the definition of ‘‘bulk comments to the Commission as Street NE., Washington, DC 20426. electric system’’ and the Rules of explained below. The Commission Instructions: All submissions must be Procedure exception process to be previously issued a Notice in the formatted and filed in accordance with effective July 1, 2013. On April 18, Federal Register (81 FR 9179, 2/24/ submission guidelines at: http:// 2013, in Order No. 773–A, the 2016) requesting public comments. The www.ferc.gov/help/submission- Commission largely affirmed its Commission received no comments on guide.asp. For user assistance contact findings in Order No. 773. In Order Nos. the FERC–725J and is making this FERC Online Support by email at 773 and 773–A, the Commission notation in its submittal to OMB. [email protected], or by phone directed NERC to modify the definition NOTE: Commission staff has revised at: (866) 208–3676 (toll-free), or (202) of bulk electric system in two respects: the burden table, added an information 502–8659 for TTY. (1) Modify the local network exclusion collection requirement, and revised the Docket: Users interested in receiving (exclusion E3) to remove the 100 kV burden estimate. automatic notification of activity in this minimum operating voltage to allow systems that include one or more looped DATES: Comments on the collection of docket or in viewing/downloading configurations connected below 100 kV information are due by June 13, 2016. comments and issuances in this docket may do so at http://www.ferc.gov/docs- to be eligible for the local network ADDRESSES: Comments filed with OMB, filing/docs-filing.asp. exclusion; and (2) modify the exclusions identified by the OMB Control No. to ensure that generator interconnection FOR FURTHER INFORMATION CONTACT: 1902–0259, should be sent via email to facilities at or above 100 kV connected Ellen Brown may be reached by email the Office of Information and Regulatory to bulk electric system generators at [email protected], by Affairs: [email protected]. identified in inclusion I2 are not telephone at (202) 502–8663, and by fax Attention: Federal Energy Regulatory excluded from the bulk electric system. at (202) 273–0873. Commission Desk Officer. The Desk Type of Respondents: Generator Officer may also be reached via SUPPLEMENTARY INFORMATION: owners, distribution providers, other telephone at 202–395–0710. Title: FERC–725J, Definition of the NERC-registered entities. A copy of the comments should also Bulk Electric System. Estimate of Annual Burden: 1 The be sent to the Commission, in Docket OMB Control No.: 1902–0259. Commission estimates the annual public No. IC16–6–000, by either of the Type of Request: Three-year extension reporting burden 2 for the information following methods: of the FERC–725J information collection collection as: FERC–725J [Definition of the bulk electric system]

Annual number of Average burden Total annual Cost per Number of responses Total number and cost per burden hours respondent respondents per of responses response and total ($) respondent annual cost

(1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) (5) ÷ (1)

Generator Owners, Distribution Pro- 20 1 20 94 hrs.; $4,978 3 1,880 hrs.; $4,978 viders, and Transmission Owners $99,560. (Exception Request). All Registered Entities (Implementa- 186 1 186 350 hrs.; 65,100 hrs.; 21,833 tion Plans and Compliance). $21,833 4. $4,060,938. Local Distribution Determinations ... 8 1 8 92 hrs.; 7,086 5 .. 736 hrs.; $56,688 7,086

Total ...... 214 ...... 67,716 hrs.; ...... $4,217,186.

1 The Commission defines burden as the total 3 The hourly cost figure (wages plus benefits) The figure is for an electric engineer (Occupational time, effort, or financial resources expended by comes from the Bureau of Labor Statistics (http:// Code: 17–2071). persons to generate, maintain, retain, or disclose or www.bls.gov/oes/current/naics2_22.htm). The 5 The hourly cost figure (wages plus benefits) provide information to or for a Federal agency. For figure is for an electric engineer ($62.38, comes from the Bureau of Labor Statistics (http:// further explanation of what is included in the Occupational Code: 17–2071), file clerk ($30.53, www.bls.gov/oes/current/naics2_22.htm). The information collection burden, reference 5 Code of Occupational Code: 43–4071), and a lawyer (129.12, Federal Regulations 1320.3. figure is a weighted average comprised of hourly Occupational Code: 23–0000); the calculation is as figures for an electric engineer ($62.38, 2 The FERC–725J information collection no longer follows: 60 hours of burden * $62.38 = $3,743; 32 includes reporting burden for ‘‘System Review and Occupational Code: 17–2071), file clerk ($30.53, List Creation’’ and ‘‘Regional and ERO Handling of hours * $30.53 = $977; 2 hours * $129.12 = $258. Occupational Code: 43–4071), and a lawyer (129.12, Exception Requests’’. These two response categories $3,743 + $977 + $258 = $4,978. Occupational Code: 23–0000); the calculation is as were part of the reporting burden in Years 1 and 4 The hourly cost figure of $62.38 (wages plus follows: 60 hours of burden * $62.38 = $3,743; 8 2 of the FERC–725J implementation and have been benefits) comes from the Bureau of Labor Statistics hours * $30.53 = $244; 24 hours * $129.12 = $3,099. completed. (http://www.bls.gov/oes/current/naics2_22.htm). $3,743 + $244 + $3,099 = $7,086.

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Comments: Comments are invited on: concrete low pressure tunnel; (5) a EQUAL EMPLOYMENT OPPORTUNITY (1) Whether the collection of 7,850-foot-long 16.5-foot-diameter COMMISSION information is necessary for the proper concrete and steel lined high pressure performance of the functions of the tunnel; (6) a 2,200-foot-long, 20-foot- Sunshine Act Meeting Notice Commission, including whether the diameter concrete lined tailrace; (7) a information will have practical utility; 300-foot-long, 80-foot-wide, 50-feet-high AGENCY: Equal Employment (2) the accuracy of the agency’s estimate underground powerhouse containing Opportunity Commission. of the burden and cost of the collection three 200–MW pump-turbine generator DATE AND TIME: Wednesday, May 18, of information, including the validity of units; (8) a 4.6-mile-long 230-kV 2016, 1:00 p.m. Eastern Time. the methodology and assumptions used; transmission line; (9) a 230/500 kV (3) ways to enhance the quality, utility substation; and (10) appurtenant PLACE: Jacqueline A. Berrien and clarity of the information collection; facilities. The estimated annual Conference Room on the First Floor of and (4) ways to minimize the burden of generation of the Southern Intertie the EEOC Office Building, 131 ‘‘M’’ the collection of information on those Project would be 1,577 gigawatt-hours. Street NE., Washington, DC 20507. who are to respond, including the use Applicant Contact: Mr. Mathew of automated collection techniques or STATUS: The meeting will be open to the Schapiro, Chief Executive Officer, other forms of information technology. public. Gridflex Energy, LLC, 1210 W. Franklin Dated: May 5, 2016. St., Ste. 2, Boise, Idaho 83702; phone: MATTERS TO BE CONSIDERED: Kimberly D. Bose, (208) 246–9925. Open Session Secretary. FERC Contact: Joseph Hassell; phone: [FR Doc. 2016–11228 Filed 5–11–16; 8:45 am] (202) 502–8079. 1. Announcement of Notation Votes, BILLING CODE 6717–01–P and Deadline for filing comments, motions to intervene, competing applications 2. Innovation Opportunity: Examining Strategies to Promote Diverse and DEPARTMENT OF ENERGY (without notices of intent), or notices of intent to file competing applications: 60 Inclusive Workplaces in the Tech Federal Energy Regulatory days from the issuance of this notice. Industry. Commission Competing applications and notices of Note: In accordance with the intent must meet the requirements of 18 [Project No. 14772–000] Sunshine Act, the meeting will be open CFR 4.36. to public observation of the Black Mountain Hydro, LLC; Notice of The Commission strongly encourages Commission’s deliberations and voting. Preliminary Permit Application electronic filing. Please file comments, Seating is limited and it is suggested Accepted for Filing and Soliciting motions to intervene, notices of intent, that visitors arrive 30 minutes before the Comments, Motions To Intervene, and and competing applications using the meeting in order to be processed Competing Applications Commission’s eFiling system at http:// through security and escorted to the www.ferc.gov/docs-filing/efiling.asp. meeting room. (In addition to On March 24, 2016, Black Mountain Commenters can submit brief comments publishing notices on EEOC Hydro, LLC, filed an application for a up to 6,000 characters, without prior Commission meetings in the Federal preliminary permit, pursuant to section registration, using the eComment system 4(f) of the Federal Power Act (FPA), Register, the Commission also provides at http://www.ferc.gov/docs-filing/ proposing to study the feasibility of the information about Commission meetings ecomment.asp. You must include your Southern Intertie Pumped Storage on its Web site, www.eeoc.gov, and name and contact information at the end Project (Southern Intertie Project or provides a recorded announcement a of your comments. For assistance, project) to be located on Black week in advance on future Commission please contact FERC Online Support at Mountain, near Yerington, in Mineral sessions.) [email protected], (866) and Lyon Counties, Nevada. The sole 208–3676 (toll free), or (202) 502–8659 Please telephone (202) 663–7100 purpose of a preliminary permit, if (TTY). In lieu of electronic filing, please (voice) and (202) 663–4074 (TTY) at any issued, is to grant the permit holder send a paper copy to: Secretary, Federal time for information on these meetings. priority to file a license application Energy Regulatory Commission, 888 The EEOC provides sign language during the permit term. A preliminary First Street NE., Washington, DC 20426. interpretation and Communication permit does not authorize the permit Access Realtime Translation (CART) holder to perform any land-disturbing The first page of any filing should include docket number P–14772–000. services at Commission meetings for the activities or otherwise enter upon lands hearing impaired. Requests for other or waters owned by others without the More information about this project, reasonable accommodations may be owners’ express permission. including a copy of the application, can made by using the voice and TTY The proposed closed-loop pumped be viewed or printed on the ‘‘eLibrary’’ numbers listed above. storage project would consist of the link of Commission’s Web site at http:// following: (1) An upper reservoir in a www.ferc.gov/docs-filing/elibrary.asp. CONTACT PERSON FOR MORE INFORMATION: natural depression having a total storage Enter the docket number (P–14772) in Bernadette B. Wilson, Acting Executive capacity of 4,460 acre-feet at a normal the docket number field to access the Officer on (202) 663–4077. maximum operating elevation of 7,410 document. For assistance, contact FERC Dated: May 10, 2016. feet mean sea level (msl); (2) a 105-foot- Online Support. Bernadette B. Wilson, tall, 1,500-foot-long lower dam of Dated: May 6, 2016. indeterminate construction; (3) a lower Acting Executive Officer, Executive reservoir having a total storage capacity Kimberly D. Bose, Secretariat. of 4,384 acre-feet at a normal maximum Secretary. [FR Doc. 2016–11344 Filed 5–10–16; 4:15 pm] operating elevation of 5,500 feet msl; (4) [FR Doc. 2016–11227 Filed 5–11–16; 8:45 am] BILLING CODE 6570–01–P a 2,200-foot-long, 16.5-foot-diameter, BILLING CODE 6717–01–P

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FEDERAL COMMUNICATIONS Telecommunications Carriers Eligible Commission also proposes several COMMISSION for Universal Service Support, Connect revisions to this information collection. America Fund. On April 27, 2016, the Commission [OMB 3060–0819] Form Numbers: FCC Form 497, 555, & released an order reforming its low- Information Collection Being Reviewed 481. income universal service support by the Federal Communications Type of Review: Revision of a mechanisms. Lifeline and Link Up Commission currently approved collection. Reform and Modernization; Respondents: Individuals or Telecommunications Carriers Eligible AGENCY: Federal Communications households and business or other for- for Universal Service Support; Connect Commission. profit. America Fund, WC Docket Nos. 11–42, ACTION: Notice and request for Number of Respondents: 21,162,260 09–197, 10–90, Third Further Notice of comments. respondents; 23,956,240 responses. Proposed Rulemaking, Order on Estimated Time per Response: .0167 Reconsideration, and Further Report SUMMARY: As part of its continuing effort hours—250 hours. and Order, (Lifeline Third Reform to reduce paperwork burdens, and as Frequency of Response: Annual and Order). This revised information required by the Paperwork Reduction on occasion reporting requirements and collection addresses requirements to Act (PRA) of 1995 (44 U.S.C. 3501– third party disclosure requirement. carry out the programs to which the 3520), the Federal Communications Obligation to Respond: Required to Commission committed itself in the Commission (FCC or the Commission) obtain or retain benefits. Lifeline Third Reform Order. Under this Total Annual Burden: 13,484,412 invites the general public and other information collection, the Commission hours. Federal agencies to take this seeks to revise the information opportunity to comment on the Total Annual Cost: $937,500. Privacy Act Impact Assessment: Yes. collection to comply with the following information collection. Commission’s new rules, adopted in the Comments are requested concerning: The Commission completed a Privacy Impact Assessment (PIA) for some of the Lifeline Third Reform Order, regarding whether the proposed collection of phasing out support for mobile voice information is necessary for the proper information collection requirements contain in this collect. The PIA was over the next six years, requiring performance of the functions of the Eligible Telecommunications Carriers Commission, including whether the published in the Federal Register at 78 FR 73535 on December 6, 2013. The PIA (ETCs) to certify compliance with the information shall have practical utility; new minimum service requirements, the accuracy of the Commission’s may be reviewed at: http://www.fcc.gov/ omd/privacyact/Privacy_Impact_ creating a new ETC designation for burden estimate; ways to enhance the Lifeline Broadband Providers (LBPs), quality, utility, and clarity of the Assessment.html. Nature and Extent of Confidentiality: updating the obligations to advertise information collected; ways to minimize Some of the requirements contained in Lifeline offerings, modifying the non- the burden of the collection of this information collection do affect usage de-enrollment requirements information on the respondents, individuals or households, and thus, within the program, moving to rolling including the use of automated there are impacts under the Privacy Act. annual subscriber recertification, and collection techniques or other forms of The FCC’s system of records notice streamlining the first-year ETC audit information technology; and ways to (SORN), FCC/WCB–1, ‘‘Lifeline requirements. Also, the Commission further reduce the information Program.’’ The Commission will use the seeks to update the number of collection burden on small business information contained in FCC/WCB–1 respondents for all the existing concerns with fewer than 25 employees. information collection requirements, The FCC may not conduct or sponsor to cover the personally identifiable information (PII) that is required as part thus increasing the total burden hours a collection of information unless it for some requirements and decreasing displays a currently valid control of the Lifeline Program (‘‘Lifeline’’). As required by the Privacy Act of 1974, as the total burden hours for other number. No person shall be subject to requirements. Finally, the Commission any penalty for failing to comply with amended, 5 U.S.C. 552a, the Commission also published a SORN, seeks to revise the FCC Forms 555, 497, a collection of information subject to the and 481 to incorporate the new PRA that does not display a valid Office FCC/WCB–1 ‘‘Lifeline Program’’ in the Federal Register on December 6, 2013 Commission rules and modify the of Management and Budget (OMB) filings for FCC Forms 555 and 497 to control number. (78 FR 73535). Also, respondents may request include detailed field descriptions. DATES: Written PRA comments should materials or information submitted to Federal Communications Commission. be submitted on or before July 11, 2016. the Commission or to the Universal Marlene H. Dortch, If you anticipate that you will be Service Administrative Company submitting comments, but find it Secretary. (USAC or Administrator) be withheld [FR Doc. 2016–11143 Filed 5–11–16; 8:45 am] difficult to do so within the period of from public inspection under 47 CFR BILLING CODE 6712–01–P time allowed by this notice, you should 0.459 of the FCC’s rules. We note that advise the contact listed below as soon USAC must preserve the confidentiality as possible. of all data obtained from respondents; FEDERAL RESERVE SYSTEM ADDRESSES: Direct all PRA comments to must not use the data except for Nicole Ongele, FCC, via email PRA@ purposes of administering the universal Change in Bank Control Notices; fcc.gov and to [email protected]. service programs; and must not disclose Acquisitions of Shares of a Bank or FOR FURTHER INFORMATION CONTACT: For data in company-specific form unless Bank Holding Company additional information about the directed to do so by the Commission. information collection, contact Nicole Needs and Uses: The Commission The notificants listed below have Ongele at (202) 418–2991. will submit this information collection applied under the Change in Bank OMB Control Number: 3060–0819. after this comment period to obtain the Control Act (12 U.S.C. 1817(j)) and Title: Lifeline and Link Up Reform full, three-year clearance from the Office § 225.41 of the Board’s Regulation Y (12 and Modernization, of Management and Budget (OMB). The CFR 225.41) to acquire shares of a bank

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or bank holding company. The factors 2016 (81 FR 8491), a notice of final President) 1000 Peachtree Street NE., that are considered in acting on the approval of proposed revisions to the Atlanta, Georgia 30309: notices are set forth in paragraph 7 of Semiannual Report of Derivatives 1. Millennium Bancshares, Inc.; to the Act (12 U.S.C. 1817(j)(7)). Activity (FR 2436) and the Central Bank become a bank holding company by The notices are available for Survey of Foreign Exchange and acquiring 100 percent of the outstanding immediate inspection at the Federal Derivate Market Activity (FR 3036). The shares of Millennium Bank, both of Reserve Bank indicated. The notices document announced incorrect effective Ooltewah, Tennessee. also will be available for inspection at dates for the two collections. the offices of the Board of Governors. Under the effective date for the Board of Governors of the Federal Reserve Interested persons may express their Semiannual Report of Derivatives System, May 6, 2016. views in writing to the Reserve Bank Activity correct the Effective Date to Michael J. Lewandowski, indicated for that notice or to the offices read: ‘‘Effective Date: June 30, 2016.’’ Associate Secretary of the Board. of the Board of Governors. Comments Under the effective date for the [FR Doc. 2016–11187 Filed 5–11–16; 8:45 am] must be received not later than May 26, Central Bank Survey of Foreign BILLING CODE 6210–01–P 2016. Exchange and Derivative Market A. Federal Reserve Bank of Kansas Activity correct the Effective Date to City (Dennis Denney, Assistant Vice read: ‘‘Effective Date: April 30, 2016.’’ President) 1 Memorial Drive, Kansas Board of Governors of the Federal Reserve DEPARTMENT OF HEALTH AND City, Missouri 64198–0001: System, May 6, 2016. HUMAN SERVICES 1. Sam Charles Brown and Josephine Robert deV. Frierson, Marie Brown, Pueblo, Colorado; to Centers for Disease Control and Secretary of the Board. Prevention retain voting shares and thereby control [FR Doc. 2016–11203 Filed 5–11–16; 8:45 am] of Pueblo Bancorporation, parent of BILLING CODE 6210–01–P Disease, Disability, and Injury Pueblo Bank & Trust Company, both of Prevention and Control Special Pueblo, Colorado. In addition, Michelle Emphasis Panel (SEP): Initial Review Rene Brown, Kenneth Scott Brown, FEDERAL RESERVE SYSTEM Karla Lynn Brown, and Sam Charles In accordance with Section 10(a)(2) of Brown, III, all of Pueblo, Colorado, Formations of, Acquisitions by, and the Federal Advisory Committee Act request approval to retain shares of Mergers of Bank Holding Companies (Pub. L. 92–463), the Centers for Disease Pueblo Bancorporation and for approval The companies listed in this notice Control and Prevention (CDC) as members of the Brown Family Group, have applied to the Board for approval, announces a meeting for the initial which acting in concert, controls Pueblo pursuant to the Bank Holding Company review of applications in response to Bancorporation. Act of 1956 (12 U.S.C. 1841 et seq.) PAR 13–129, Occupational Safety and Board of Governors of the Federal Reserve (BHC Act), Regulation Y (12 CFR part Health Research, NIOSH Member System, May 6, 2016. 225), and all other applicable statutes Conflict Review. Michael J. Lewandowski, and regulations to become a bank Time and Date: 1:00 p.m.–5:00 p.m., Associate Secretary of the Board. holding company and/or to acquire the EDT, June 9, 2016 (Closed). [FR Doc. 2016–11188 Filed 5–11–16; 8:45 am] assets or the ownership of, control of, or Place: Teleconference. BILLING CODE 6210–01–P the power to vote shares of a bank or bank holding company and all of the Status: The meeting will be closed to banks and nonbanking companies the public in accordance with FEDERAL RESERVE SYSTEM owned by the bank holding company, provisions set forth in Section 552b(c) including the companies listed below. (4) and (6), Title 5 U.S.C., and the Agency Information Collection The applications listed below, as well Determination of the Director, Activities: Notice; Correction as other related filings required by the Management Analysis and Services Board, are available for immediate Office, CDC, pursuant to Public Law 92– AGENCY: Board of Governors of the 463. Federal Reserve System inspection at the Federal Reserve Bank indicated. The applications will also be Matters for Discussion: The meeting SUMMARY: On February 19, 2016, the available for inspection at the offices of Board published a notice of final will include the initial review, the Board of Governors. Interested discussion, and evaluation of approval of proposed information persons may express their views in collections by the Board of Governors of applications received in response to writing on the standards enumerated in ‘‘PAR 13–129, Occupational Safety and the Federal Reserve System (Board) the BHC Act (12 U.S.C. 1842(c)). If the under OMB delegated authority. This Health Research, NIOSH Member proposal also involves the acquisition of Conflict Review.’’ document corrects the effective dates in a nonbanking company, the review also Contact Person for More Information: the notice. includes whether the acquisition of the Nina Turner, Ph.D., Scientific Review FOR FURTHER INFORMATION CONTACT: nonbanking company complies with the Officer, NIOSH, CDC, 1095 Willowdale Federal Reserve Board Clearance Officer standards in section 4 of the BHC Act Road, Mailstop G905, Morgantown, —Nuha Elmaghrabi—Office of the Chief (12 U.S.C. 1843). Unless otherwise West Virginia 26506, Telephone: (304) Data Officer, Board of Governors of the noted, nonbanking activities will be 285–5976. Federal Reserve System, Washington, conducted throughout the United States. DC 20551 (202) 452–3829. Unless otherwise noted, comments The Director, Management Analysis Telecommunications Device for the Deaf regarding each of these applications and Services Office, has been delegated (TDD) users may contact (202) 263– must be received at the Reserve Bank the authority to sign Federal Register 4869, Board of Governors of the Federal indicated or the offices of the Board of notices pertaining to announcements of Reserve System, Washington, DC 20551. Governors not later than June 6, 2016. meetings and other committee Correction: The Board published in A. Federal Reserve Bank of Atlanta management activities, for both the the Federal Register of February 19, (Chapelle Davis, Assistant Vice Centers for Disease Control and

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Prevention and the Agency for Toxic send an email to [email protected]. Written a rotating basis in mining sectors Substances and Disease Registry. comments and/or suggestions regarding aligned with national mining the items contained in this notice association. In Phase 1 of the project, Elaine L. Baker, should be directed to the Attention: the MIWS will be conducted in the Director, Management Analysis and Services CDC Desk Officer, Office of Management stone/sand and gravel mining sector in Office, Centers for Disease Control and and Budget, Washington, DC 20503 or Prevention. year 1, the metal/nonmetal mining by fax to (202) 395–5806. Written sector in year 2, and the coal mining [FR Doc. 2016–11142 Filed 5–11–16; 8:45 am] comments should be received within 30 sector in year 3. Data from this survey BILLING CODE 4163–18–P days of this notice. will provide denominator data so that Proposed Project accident, injury, and illness reports can be evaluated in relation to the DEPARTMENT OF HEALTH AND Mining Industry Surveillance HUMAN SERVICES population at risk. Additionally, NIOSH System—New—National Institute for cannot separately determine the number Occupational Safety and Health Centers for Disease Control and of contractor employees working in (NIOSH), Centers for Disease Control Prevention metal, nonmetal, stone, or sand and and Prevention (CDC). gravel mines. The survey will collect [30Day–16–16GX] Background and Brief Description mine-level data on contractor employees Agency Forms Undergoing Paperwork The mission of the National Institute to allow NIOSH to determine the Reduction Act Review for Occupational Safety and Health quantity of contract labor that mine (NIOSH) is to promote safety and health operators use and the type of work these The Centers for Disease Control and at work for all people through research employees perform. NIOSH will also Prevention (CDC) has submitted the and prevention. The Federal Mine use the MIWS to collect mine-level data following information collection request Safety and Health Act of 1977, Section that will provide a valuable picture of to the Office of Management and Budget 501, enables NIOSH to carry out the current working environment (work (OMB) for review and approval in research relevant to the health and schedules and shift work practices) used accordance with the Paperwork safety of workers in the mining in the U.S. mining industry. Reduction Act of 1995. The notice for industry. Surveillance of occupational Estimated Annualized Burden Hours the proposed information collection is injuries, illnesses, and exposures has published to obtain comments from the been an integral part of the work of The burden estimates were derived in public and affected agencies. NIOSH since its creation by the Written comments and suggestions the following manner. Based on the Occupational Safety and Health Act in stratification and sample size allocation from the public and affected agencies 1970. Surveillance activities at the concerning the proposed collection of plan developed for this project 34% of Office of Mine Safety and Health all sampled mines have fewer than 10 information are encouraged. Your Research (OMSHR), a division of comments should address any of the employees. Mines with 10 or fewer NIOSH, are focused on the nation’s employees will not have to do any following: (a) Evaluate whether the mining workforce. proposed collection of information is sampling as they will be asked to OMSHR is planning to develop the provide data for all of their employees. necessary for the proper performance of Mining Industry Surveillance System, a the functions of the agency, including Small mines will require up to 45 unique source of longitudinal minutes to complete the survey. Mines whether the information will have information on U.S. mines and their with 11 or more employees will need up practical utility; (b) Evaluate the employees. Its purpose will be to: (1) to 1.5 hours given their need to generate accuracy of the agencies estimate of the Track changes and emerging trends over an employee roster and sample 10 of burden of the proposed collection of time; (2) provide current data to guide their employees. Thus, NIOSH is information, including the validity of research and training activities; (3) estimating that the average annual the methodology and assumptions used; provide updated demographic and burden to complete the survey will be (c) Enhance the quality, utility, and occupational data for the mining 1 hour. Non-responding mines will be clarity of the information to be workforce; and (4) provide denominator asked to complete the Nonresponse collected; (d) Minimize the burden of data to help understand the risk of Survey which consists of only seven the collection of information on those work-related injuries, disease, and questions. NIOSH estimates that the who are to respond, including through fatalities in specific demographic and burden for this brief survey will be 10 the use of appropriate automated, occupational subgroups. electronic, mechanical, or other The goal of the proposed project is to minutes or less. The burden data are technological collection techniques or improve its surveillance capability calculated based on a 60% response rate other forms of information technology, related to the occupational risks in for the sampled mines. This does not e.g., permitting electronic submission of mining. NIOSH is requesting a three- take into account that some sampled responses; and (e) Assess information year approval for this data collection. mines may not be eligible to participate collection costs. NIOSH is planning to use the Mining in the survey (e.g., inactive, temporarily To request additional information on Industry and Workforce Survey (MIWS) closed). The total estimated annualized the proposed project or to obtain a copy to collect data for the Mining Industry burden hours are 491. of the information collection plan and Surveillance System. Data will be There is no cost to the respondents instruments, call (404) 639–7570 or collected through surveys conducted on other than their time.

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ESTIMATED ANNUALIZED BURDEN HOURS

Average Type of Number of Number of burden per respondents Form name respondents responses per response respondent (in hours)

Responding Mines ...... Mining Industry and Workforce Survey ...... 420 1 1 Nonresponding Mines ...... Phone Script ...... 280 1 5/60 Nonresponding Mines ...... Nonresponse Survey ...... 280 1 10/60

Leroy A. Richardson assigned on a first come–first served administration of the Advisory Chief, Information Collection Review Office, basis. Written comments will also be Committee is left to the Director of Office of Scientific Integrity, Office of the accepted from those unable to attend the NIOSH in his role as WTC Program Associate Director for Science, Office of the public session. Administrator. CDC and NIOSH provide Director, Centers for Disease Control and Status: Open to the public, limited funding, staffing, and administrative Prevention. only by the number of telephone lines. support services for the Advisory [FR Doc. 2016–11179 Filed 5–11–16; 8:45 am] The conference line will accommodate Committee. The charter was reissued on BILLING CODE 4163–18–P up to 50 callers; therefore it is suggested May 12, 2015, and will expire on May that those interested in calling in to 12, 2017. listen to the committee meeting share a Matters for Discussion: The Advisory DEPARTMENT OF HEALTH AND line when possible. Committee will address the new HUMAN SERVICES Background: The Advisory Committee responsibilities required under the Centers for Disease Control and was established by Title I of the James reauthorization of the WTC Health Prevention Zadroga 9/11 Health and Compensation Program in the PHS Act. Specifically, Act of 2010, Public Law 111–347 the enhanced role of the STAC to (1) World Trade Center Health Program (January 2, 2011), amended by Public make recommendations regarding the Scientific/Technical Advisory Law 114–113 (Dec. 18, 2015), adding identification of individuals to conduct Committee (WTCHP STAC or Advisory Title XXXIII to the Public Health independent peer reviews of the Committee), National Institute for Service (PHS) Act (codified at 42 U.S.C. evidence that would be the basis for Occupational Safety and Health 300mm to 300mm-61). issuing final rules to add a health (NIOSH), Docket Number CDC–2016– Purpose: The purpose of the Advisory condition to the List of WTC-Related 0036; NIOSH 248–E Committee is to review scientific and Health Conditions; and (2) review and medical evidence and to make evaluate the policies and procedures in In accordance with section 10(a)(2) of recommendations to the World Trade effect within the WTC Health Program the Federal Advisory Committee Act Center (WTC) Program Administrator that are used to determine whether (Pub. L. 92–463), the Centers for Disease regarding additional WTC Health sufficient evidence is available to Control and Prevention (CDC), Program eligibility criteria, potential support adding a non-cancer condition announces the following meeting of the additions to the list of covered WTC- or type of cancer to the List of WTC- aforementioned committee: Time and Date: 9:00 a.m.–5:00 p.m., related health conditions, and research Related Health Conditions. June 2, 2016 (All times are Eastern regarding certain health conditions The two policies can be found at: Daylight Time). related to the September 11, 2001 http://www.cdc.gov/wtc/policies.html. Place: Jacob J. Javits Federal Building, terrorist attacks. Title XXXIII of the PHS The agenda will include presentations 26 Federal Plaza, New York, New York Act established the WTC Health on peer review and the policies and 10278. This meeting will also be Program within the Department of procedures the WTC Health Program available by telephone and Web Health and Human Services (HHS). The uses to add health conditions to the list conference. Audio only will be available WTC Health Program provides medical of covered conditions. by telephone; video will be available by monitoring and treatment benefits to The agenda is subject to change as Web conference. The USA toll-free, dial- eligible firefighters and related priorities dictate. in number is 1–888–606–8411, and personnel, law enforcement officers, To view the notice, visit http:// when prompted enter passcode— and rescue, recovery, and cleanup www.regulations.gov and enter CDC– 5064451. To view the web conference, workers who responded to the 2016–0036 in the search field and click enter the following web address in your September 11, 2001, terrorist attacks in ‘‘Search.’’ web browser: https:// New York City, at the Pentagon, and in Public Comment Sign-up and odniosh.adobeconnect.com/wtchpstac/. Shanksville, Pennsylvania (responders), Submissions to the Docket: To sign up Public Comment Time and Date: 9:20 and to eligible persons who were to provide public comments or to a.m.–9:50 a.m., June 2, 2016. present in the dust or dust cloud on submit comments to the docket, send Please note that the public comment September 11, 2001 or who worked, information to the NIOSH Docket Office period ends at the time indicated above resided, or attended school, childcare, by one of the following means: or following the last call for comments, or adult daycare in the New York City Mail: NIOSH Docket Office, Robert A. whichever is earlier. Members of the disaster area (survivors). Certain specific Taft Laboratories, MS C–34, 1090 public who want to comment must sign activities of the WTC Program Tusculum Avenue, Cincinnati, Ohio up by providing their name by mail, Administrator are reserved to the 45226. email, or telephone, at the addresses Secretary, HHS, to delegate at her Email: [email protected]. provided below by May 29, 2016. Each discretion; other WTC Program Telephone: (513) 533–8611. commenter will be provided up to five Administrator duties not explicitly In the event an individual cannot minutes for comment. A limited number reserved to the Secretary, HHS, are attend, written comments may be of time slots are available and will be assigned to the Director, NIOSH. The submitted. The comments should be

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limited to two pages and submitted DEPARTMENT OF HEALTH AND related to the Program’s responsibilities. through http://www.regulations.gov HUMAN SERVICES The Assistant Secretary for Health enter CDC–2016–0036 in the search serves as Director of the National field and click ‘‘Search’’ by May 29, Meeting of the National Vaccine Vaccine Program. Advisory Committee 2016. Efforts will be made to provide The June 2016 NVAC meeting will the two-page written comments received AGENCY: National Vaccine Program continue important discussions on by the deadline above to the committee Office, Office of the Assistant Secretary addressing the barriers and scientific members before the meeting. Comments for Health, Office of the Secretary, in excess of two pages will be made challenges to the development of new Department of Health and Human publicly available at http:// and improved vaccines, with a Services. www.regulations.gov (enter CDC–2016– presentation from the NVAC Maternal 0036 in the search field and click ACTION: Notice. Immunization Working Group of their draft recommendations for overcoming ‘‘Search’’). SUMMARY: As stipulated by the Federal barriers to research and development of Policy on Redaction of Committee Advisory Committee Act, the vaccines for use in pregnant women. Meeting Transcripts (Public Comment): Department of Health and Human The NVAC will host a comprehensive Transcripts will be prepared and posted Services is hereby giving notice that the discussion on the financial costs and to http://www.regulations.gov (enter National Vaccine Advisory Committee CDC–2016–0036 in the search field and (NVAC) will hold a meeting June 7–8, perceived barriers to providing click ‘‘Search’’) within 60 days after the 2016. The meeting is open to the public. immunization services across the meeting. If a person making a comment However, pre-registration is required for lifespan. Committee discussions will gives his or her name, no attempt will both public attendance and public also include an update on immunization be made to redact that name. NIOSH comment. Individuals who wish to priorities at the local level, efforts to will take reasonable steps to ensure that attend the meeting and/or participate in improve immunization coverage among individuals making public comments the public comment session should adults and adolescents, and findings are aware of the fact that their register at http://www.hhs.gov/nvpo/ from a midcourse review of the 2010 comments (including their name, if nvac/meetings/upcomingmeetings. National Vaccine Plan on the areas of provided) will appear in a transcript of Participants may also register by greatest opportunity for strengthening the meeting posted on a public Web site. emailing [email protected] or by calling the immunization system going forward. Such reasonable steps include a (202) 690–5566 and providing their Please note that agenda items are subject statement read at the start of the meeting name, organization, and email address. to change as priorities dictate. stating that transcripts will be posted DATES: The meeting will be held on June Information on the final meeting agenda and names of speakers will not be 7–8, 2016. The meeting times and will be posted prior to the meeting on redacted. If individuals in making a agenda will be posted on the NVAC the NVAC Web site: http:// statement reveal personal information Web site at http://www.hhs.gov/nvpo/ www.hhs.gov/nvpo/nvac. (e.g., medical information) about nvac/meetings/upcomingmeetings as Public attendance at the meeting is themselves, that information will not soon as they become available. usually be redacted. The CDC Freedom limited to the available space. ADDRESSES: U.S. Department of Health of Information Act coordinator will, Individuals who plan to attend in and Human Services, Hubert H. however, review such revelations in person and need special assistance, Humphrey Building, the Great Hall, 200 accordance with the Freedom of such as sign language interpretation or Independence Avenue SW., Information Act and, if deemed other reasonable accommodations, Washington, DC 20201. appropriate, will redact such should notify the National Vaccine The meeting can also be accessed information. Disclosures of information Program Office at the address/phone through a live webcast the day of the concerning third party medical listed above at least one week prior to meeting. For more information, visit information will be redacted. http://www.hhs.gov/nvpo/nvac/ the meeting. For those unable to attend Contact Person for More Information: meetings/upcomingmeetings. in person, a live webcast will be available. More information on Paul J. Middendorf, Ph.D., Designated FOR FURTHER INFORMATION CONTACT: registration and accessing the webcast Federal Officer, NIOSH, CDC, 2400 National Vaccine Program Office, U.S. can be found at http://www.hhs.gov/ Century Parkway NE., Mail Stop E–20, Department of Health and Human Atlanta, Georgia 30345, telephone 1 Services, Room 715–H, Hubert H. nvpo/nvac/meetings/ (888) 982–4748; email: wtc-stac@ Humphrey Building, 200 Independence upcomingmeetings. cdc.gov. Avenue SW., Washington, DC 20201. Members of the public will have the The Director, Management Analysis Phone: (202) 690–5566; email: nvpo@ opportunity to provide comments at the and Services Office, has been delegated hhs.gov. NVAC meeting during the public the authority to sign Federal Register SUPPLEMENTARY INFORMATION: Pursuant comment periods designated on the Notices pertaining to announcements of agenda. Public comments made during meetings and other committee to Section 2101 of the Public Health Service Act (42 U.S.C. 300aa–1), the the meeting will be limited to three management activities, for both the minutes per person to ensure time is Centers for Disease Control and Secretary of Health and Human Services was mandated to establish the National allotted for all those wishing to speak. Prevention, and the Agency for Toxic Individuals are also welcome to submit Substances and Disease Registry. Vaccine Program to achieve optimal prevention of human infectious diseases their written comments. Written Elaine L. Baker, through immunization and to achieve comments should not exceed three Director, Management Analysis and Services optimal prevention against adverse pages in length. Individuals submitting Office, Centers for Disease Control and reactions to vaccines. The NVAC was written comments should email their Prevention. established to provide advice and make comments to the National Vaccine [FR Doc. 2016–11141 Filed 5–11–16; 8:45 am] recommendations to the Director of the Program Office ([email protected]) at least BILLING CODE 4163–18–P National Vaccine Program on matters five business days prior to the meeting.

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Dated: May 3, 2016. LT Katrina L. Piercy, Ph.D., RD, ACSM– Description of Duties. The work of the Bruce Gellin, CEP, Alternate DFO; Office of Disease 2018 PAGAC is solely advisory in Executive Secretary, National Vaccine Prevention and Health Promotion, nature. The Committee will be Advisory Committee, Deputy Assistant OASH/DHHS; 1101 Wootton Parkway, established for the single, time-limited Secretary for Health, Director, National Suite LL100 Tower Building; Rockville, task of reviewing the current edition of Vaccine Program Office. MD 20852; Telephone: (240) 453–8280; the PAG and conducting an evidence- [FR Doc. 2016–11243 Filed 5–11–16; 8:45 am] Fax: (240) 453–8281. Secretary’s based systematic literature review of BILLING CODE 4150–44–P Advisory Committee on National Health physical activity and health for use in Promotion and Disease Prevention developing physical activity Objectives for 2030: Emmeline Ochiai, recommendations to promote health and DEPARTMENT OF HEALTH AND Designated Federal Officer or Carter reduce chronic disease risk. HUMAN SERVICES Blakey, Alternate DFO; Office of Disease Membership and Designation. The Prevention and Health Promotion, 2018 PAGAC will be composed of 11 to Announcement of Re-Establishment of OASH/DHHS; 1101 Wootton Parkway; 17 members. One or more members will the Physical Activity Guidelines Suite LL 100 Tower Building; Rockville, be selected to serve as the Chair, Vice Advisory Committee and the MD 20852; Telephone: (240) 453–8280; Chair, and/or Co-Chairs. The Committee Secretary’s Advisory Committee on Fax: (240) 453–8281. Additional will consist of respected published National Health Promotion and Disease information about the 2018 Physical experts in designated fields and specific Prevention Objectives Activity Guidelines Advisory specialty areas. Individuals appointed to serve on the Committee will have AGENCY: Office of Disease Prevention Committee can be found at http:// and Health Promotion, Office of the health.gov/paguidelines. Additional demonstrated expert knowledge of Assistant Secretary for Health, Office of information about the Secretary’s current science in the field of human the Secretary, U.S. Department of Health Advisory Committee on National Health physical activity and health promotion or the prevention of chronic disease. and Human Services. Promotion and Disease Prevention Members will be appointed to the ACTION: Notice. Objectives can be found at https:// www.healthypeople.gov. Committee by the Secretary of HHS and Authority: Re-establishment of the invited to serve for the duration of the Physical Activity Guidelines Advisory SUPPLEMENTARY INFORMATION: On April Committee. All appointed members of Committee and the Secretary’s Advisory 26, 2016, the Secretary approved for the the Committee will be classified as Committee on National Health Physical Activity Guidelines Advisory special government employees (SGEs). Promotion and Disease Prevention Committee and the Secretary’s Advisory Administrative Management and Objectives is authorized under 42 U.S.C. Committee on National Health Support. The 2018 PAGAC will provide 217a, Section 222 of the Public Health Promotion and Disease Prevention advice to the Secretary of Health and Service Act, as amended. The Objectives to be re-established. Both Human Services, through the Assistant Committees will be governed by committees have been re-established to Secretary for Health (ASH). The provisions of the Federal Advisory accomplish single, time-limited tasks. Committee will provide a report to the Committee Act, Public Law 92–463, as The Physical Activity Guidelines Secretary, outlining their recommendations and rationale for the amended (5 U.S.C. App.), which sets Advisory Committee was first second edition of the PAG. forth standards for the formation and established in February 2007 to assist Management and support services for use of advisory committees. the Department in development of the the Committee will be provided within SUMMARY: The U.S. Department of first edition of the Physical Activity the Office of the Assistant Secretary for Health and Human Services (HHS) Guidelines for Americans (PAG). The Health (OASH) by the Office of Disease announces re-establishment of the Department plans to develop a second Prevention and Health Promotion Physical Activity Guidelines Advisory edition of the PAG, and it was (ODPHP). The ODPHP is a program staff Committee and the Secretary’s Advisory recommended that the same process be office within OASH; OASH is a staff Committee on National Health used to develop this document. The division in the HHS Office of the Promotion and Disease Prevention new committee will examine the current Secretary. Objectives. The new titles for the edition of the PAG, take into ODPHP will collaborate with the Committees are the 2018 Physical consideration new scientific evidence Centers for Disease Control and Activity Guidelines Advisory and current resource documents, and Prevention (CDC), the National Committee and the Secretary’s Advisory then develop a scientific advisory report Institutes of Health (NIH), and the Committee on National Health that will be submitted to the Secretary. OASH program staff office for the Promotion and Disease Prevention The title for the new committee is the President’s Council on Fitness, Sports, Objectives for 2030, respectively. The 2018 Physical Activity Guidelines and Nutrition (PCFSN). The ASH will 2018 Physical Activity Guidelines Advisory Committee (2018 PAGAC; the appoint seven Co-Executive Secretaries Advisory Committee and the Secretary’s Committee). to support the Committee, two each Advisory Committee on National Health Objectives and Scope of Activities. from the ODPHP, CDC, and NIH, and Promotion and Disease Prevention The 2018 PAGAC will provide one from the OASH staff office for the Objectives have been established as independent advice and PCFSN. The two ODPHP Co-Executive discretionary federal advisory recommendations based on current Secretaries will be appointed to serve as committees. Both committees have been scientific evidence for use by the federal the DFO and Alternate DFO for the established to perform single, time- government in the development of the Committee. limited tasks that will assist with second edition of the PAG. The PAG The Department established the furthering the mission of the HHS. provides a foundation for federal Healthy People initiative in 1979. The FOR FURTHER INFORMATION CONTACT: recommendations and education for initiative was established to develop a 2018 Physical Activity Guidelines physical activity programs for framework for improving the health of Advisory Committee: Richard D. Olson, Americans, including those at risk for all people in the United States. Healthy MD, MPH; Designated Federal Officer or chronic disease. People provides evidence-based, ten-

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year national objectives for improving nationally known experts in areas such DEPARTMENT OF HEALTH AND the health of all Americans. Every 10 as biostatistics, business, epidemiology, HUMAN SERVICES years, the Department issues a health communications, health comprehensive set of national public economics, health information Substance Abuse and Mental Health health objectives. To assist with this technology, health policy, health Services Administration task for the development of Healthy sciences, health systems, international Agency Information Collection People 2020, the Department utilized a health, outcomes research, public health scientific advisory committee, the Activities: Submission for OMB law, social determinants of health, Review; Comment Request Secretary’s Advisory Committee on special populations, and state and local National Health Promotion and Disease health public health and from a variety Periodically, the Substance Abuse and Prevention Objectives for 2020. It was of public, private, philanthropic, and Mental Health Services Administration recommended that the same process be academic settings. (SAMHSA) will publish a summary of used to assist with development of information collection requests under Members will be appointed to the Healthy People 2030 because the OMB review, in compliance with the Committee by the Secretary of HHS or Department must create a more focused Paperwork Reduction Act (44 U.S.C. a designated representative and invited set of ten-year national disease Chapter 35). To request a copy of these prevention and health promotion to serve for the duration of the documents, call the SAMHSA Reports objectives that reflect the Nation’s needs Committee. All appointed members of Clearance Officer on (240) 276–1243. and carries stakeholder support. The the Committee will be classified as title for the new committee is the special government employees (SGEs). Project: Primary and Behavioral Health Secretary’s Advisory Committee on Care Integration Evaluation—NEW Administrative Management and National Health Promotion and Disease The Substance Abuse and Mental Prevention Objectives for 2030 (the Support. The Committee will provide advice to the Secretary of HHS, through Health Services Administration’s Committee). (SAMHSA) Center for Behavioral Health Objectives and Scope of Activities. In the Assistant Secretary for Health Statistics and Quality (CBHSQ) is 1979, HHS established the Healthy (ASH). The ASH will provide oversight requesting approval from the Office of People initiative to develop a framework for the Committee’s function and Management and Budget (OMB) for new for improving the health of all people in activities. Management and support data collection activities associated with the United States. Healthy People services for the Committee will be provides evidence-based, ten-year provided by the Office of Disease their Primary and Behavioral Health Care Integration (PBHCI) program. national objectives for improving the Prevention and Health Promotion This information collection is needed health of all Americans. Healthy People (ODPHP). ODPHP is a program office offers a strategic agenda to align health to provide SAMHSA with objective within the Office of the Assistant information to document the reach and promotion and disease prevention Secretary for Health, which is a staff activities in communities around the impact of the PBHCI program. The division in the HHS Office of the information will be used to monitor country. The Healthy People initiative is Secretary. grounded in the principle that setting quality assurance and quality national objective and monitoring To comply with the provisions of performance outcomes for organizations progress can motivate action. FACA, the charters for the 2018 funded by this grant program. The The Committee will provide Physical Activity Guidelines Advisory information will also be used to assess independent advice based on current Committee and the Secretary’s Advisory the impact of services on behavioral scientific evidence for use by the Committee on National Health health and physical health services for Secretary of HHS or a designated Promotion and Disease Prevention individuals served by this program. . representative in the development of Objectives for 2030 will be filed with Collection of the information Healthy People 2030. The Committee the appropriate Congressional included in this request is authorized by will advise the Secretary on the committees and the Library of Congress Section 505 of the Public Health Service Department’s approach for Healthy fifteen calendar days after notice of this Act (42 U.S.C. 290aa–4)—Data People 2030. Framed around health action being taken has been published Collection. SAMHSA launched the PBHCI determinants and risk factors, this in the Federal Register. After the program in FY 2009 with the approach will generate a focused set of charters have been filed, copies of these understanding that adults with serious objective that address high-impact documents can be obtained from the mental illness (SMI) experience public health challenges. ODPHP Web site under the appropriate Description of Duties. The work of the heightened rates of morbidity and program headings. Copies of the Committee is solely advisory in nature. mortality, in large part due to elevated The Committee will perform the single, charters for the two designated incidence and prevalence of risk factors time-limited task of providing advice committees also can be obtained by such as obesity, diabetes, hypertension, regarding creating Healthy People 2030. accessing the FACA database that is and dyslipidemia. These risk factors are The Committee’s duties include maintained by the Committee influenced by a variety of factors, providing advice about the Healthy Management Secretariat under the including inadequate physical activity People 2030 mission statement, vision General Services Administration. The and poor nutrition; smoking; side effects statement, framework, and Web site address for the FACA database from atypical antipsychotic organizational structure. is http://facadatabase.gov/. medications; and lack of access to Membership and Designation. The Dated: May 3, 2016. health care services. Many of these Committee will consist of no more than health conditions are preventable Karen B. DeSalvo, 13 members. One or more members will through routine health promotion be selected to serve as the Chair, Vice Acting Assistant Secretary for Health. activities, primary care screening, Chair, and/or Co-Chairs. The Committee [FR Doc. 2016–11235 Filed 5–11–16; 8:45 am] monitoring, treatment and care membership may include former BILLING CODE 4150–32–P management/coordination strategies Assistant Secretaries for Health and and/or other outreach programs.

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The purpose of the PBHCI grant the characteristics of the treatment instruments and forms related to the program is to establish projects for the setting and community, and which implementation and impact studies to provision of coordinated and integrated models have the greatest potential for be conducted as part of the evaluation: services through the co-location of sustainability and replication. SAMHSA 1. PBHCI grantee director survey primary and specialty care medical awarded the first cohort of 13 PBHCI 2. PBHCI frontline staff survey services in community-based behavioral grants in fiscal year (FY) 2009, and 3. Telephone interview protocol health settings. The program’s goal is to between FY 2009 and FY 2014, 4. On-site staff interview protocol improve the physical health status of SAMHSA funded a total of seven 5. Client focus group guide adults with serious mental illnesses cohorts comprising 127 grants. An (and those with co-occurring substance eighth cohort, funded in fall 2015, 6. Data extraction tool for grantee use disorders) who have or are at risk included 60 new grants. registry/electronic health records for co-occurring primary care conditions The data collection described in this (EHRs) and chronic diseases. request will build upon the first PBHCI 7. Initial client letter for physical exam As the largest federal effort to evaluation and provide essential data on and health assessment implement integrated behavioral and the implementation of integrated 8. Consent form for client physical exam physical health care in community primary and behavioral health care, and health assessment behavioral health settings, SAMHSA’s along with rigorous estimates of its 9. Consent form for client focus group PBHCI program offers an unprecedented effects on health. 10. Client physical exam and health opportunity to identify which The Center for Behavioral Health assessment questionnaire approaches to integration improve Statistics and Quality is requesting The table below reflects the outcomes, how outcomes are shaped by clearance for ten data collection annualized hourly burden.

Responses Respondents/activity Number of per Total Hours per Total hour respondents respondent responses response burden

Web surveys

Grantee director ...... 78 2 b 149 0.5 b 75 Grantee frontline staff survey ...... 782 2 c 1,494 0.5 c 747

Phone interviews

Grantee director ...... 60 1 60 1.0 60 Grantee director—site interview ...... 10 2 20 2.0 40 Grantee mental health providers—site interview ...... 40 2 80 1.0 80 Grantee primary care providers—site interview ...... 40 2 80 1.5 120 Grantee care coordinators—site interview ...... 20 2 40 1.5 60

Focus groups

Focus group participants ...... 120 2 240 1.0 240 Extraction of grantee registry/EHR data ...... 92 11 1,012 8.0 8,096 SMI clients—baseline physical exam and health assess- ment ...... 2,500 1 2,500 1.0 2,500 SMI clients—follow-up physical exam and health assess- ment ...... 1,750 1 1,750 1.0 1,750 Comparison group clinic director—coordination d ...... 10 1 10 8.0 80

Total ...... e 3,752 ...... 7,435 ...... 13,848 a Hourly wage estimates are based on salary information provided in 10 PBHCI grant proposals representing mostly urban locations across the country and represent an average across responders of each type. b Cohort VI funding ends before the administration of the second survey. Total number of responses excludes the Cohort VI directors, who will not receive the second survey. c Cohort VI funding ends before the administration of the second survey. Total number of responses excludes the Cohort VI frontline staff, who will not receive the second survey. d Includes logistical coordination between the evaluation and site staff to conduct the physical exam and health assessment as well as over- sight of client recruitment. e Excludes physical exam and health assessment follow-up respondents.

Written comments and their comments to OMB via email to: Affairs, New Executive Office Building, recommendations concerning the [email protected]. Room 10102, Washington, DC 20503. proposed information collection should Although commenters are encouraged to Summer King, be sent by June 13, 2016 to the send their comments via email, SAMHSA Desk Officer at the Office of commenters may also fax their Statistician. Information and Regulatory Affairs, comments to: 202–395–7285. [FR Doc. 2016–11184 Filed 5–11–16; 8:45 am] Office of Management and Budget Commenters may also mail them to: BILLING CODE 4162–20–P (OMB). To ensure timely receipt of Office of Management and Budget, comments, and to avoid potential delays Office of Information and Regulatory in OMB’s receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit

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DEPARTMENT OF HOMELAND Act of 1995 (Pub. L. 104–13; 44 U.S.C. Dated: May 9, 2016. SECURITY 3507). The comments should address: Tracey Denning, (a) Whether the collection of Agency Clearance Officer, U.S. Customs and U.S. Customs and Border Protection information is necessary for the proper Border Protection. [1651–0081] performance of the functions of the [FR Doc. 2016–11218 Filed 5–11–16; 8:45 am] agency, including whether the BILLING CODE 9111–14–P Agency Information Collection information shall have practical utility; Activities: Delivery Ticket (b) the accuracy of the agency’s estimates of the burden of the collection DEPARTMENT OF HOMELAND AGENCY: U.S. Customs and Border of information; (c) ways to enhance the SECURITY Protection, Department of Homeland quality, utility, and clarity of the Security. information to be collected; (d) ways to U.S. Customs and Border Protection ACTION: 30-Day notice and request for minimize the burden, including the use [Docket No. USCBP–2016–0018] comments; Extension of an existing of automated collection techniques or collection of information. the use of other forms of information U.S. Customs and Border Protection technology; and (e) the annual costs to User Fee Advisory Committee (UFAC) SUMMARY: U.S. Customs and Border respondents or record keepers from the Meeting Protection (CBP) of the Department of collection of information (total capital/ Homeland Security will be submitting startup costs and operations and AGENCY: U.S. Customs and Border the following information collection maintenance costs). The comments that Protection, Department of Homeland request to the Office of Management and are submitted will be summarized and Security (DHS). Budget (OMB) for review and approval included in the CBP request for OMB ACTION: Committee management; notice in accordance with the Paperwork approval. All comments will become a of federal advisory public committee Reduction Act: Delivery Ticket (CBP matter of public record. In this meeting. Form 6043). This is a proposed document, CBP is soliciting comments SUMMARY: The U.S. Customs and Border extension of an information collection concerning the following information Protection User Fee Advisory that was previously approved. CBP is collection: proposing that this information Committee (UFAC) will meet on collection be extended with no change Title: Delivery Ticket. Wednesday, June 1, 2016, in to the burden hours or to the OMB Number: 1651–0081. Washington, DC. The meeting will be information collected. This document is Form Number: CBP Form 6043. open to the public. published to obtain comments from the Abstract: CBP Form 6043, Delivery DATES: The UFAC will meet on public and affected agencies. Ticket, is used to document transfers of Wednesday, June 1, 2016, from 1:00 DATES: Written comments should be imported merchandise between parties. p.m. to 3:00 p.m. EDT. Please note that received on or before June 13, 2016 to This form collects information such as the meeting is scheduled for two hours be assured of consideration. the name and address of the consignee; and that the meeting may close early if ADDRESSES: Interested persons are the name of the importing carrier; lien the committee completes its business. invited to submit written comments on information; the location of where the Pre-Registration: Meeting participants this proposed information collection to goods originated and where they were may attend either in person or via the Office of Information and Regulatory delivered; and information about the webinar after pre-registering using a Affairs, Office of Management and imported merchandise. CBP Form 6043 method indicated below: Budget. Comments should be addressed is filled out by warehouse proprietors, —For members of the public who plan to the OMB Desk Officer for Customs carriers, Foreign Trade Zone operators to attend the meeting in person, and Border Protection, Department of and others involved in transfers of please register either online at https:// Homeland Security, and sent via imported merchandise. This form is apps.cbp.gov/te_reg/index.asp?w=76, electronic mail to oira_submission@ authorized by 19 U.S.C. 1551a and 1565, by email to [email protected]; or omb.eop.gov or faxed to (202) 395–5806. and provided for by 19 CFR 4.34, 4.37 by fax to (202) 325–4290 by 5:00 p.m. FOR FURTHER INFORMATION CONTACT: and 19.9. It is accessible at: http:// EDT on May 27, 2016. Requests for additional information www.cbp.gov/sites/default/files/ —For members of the public who plan should be directed to Tracey Denning, documents/CBP%20Form%206043.pdf. to participate via webinar, please U.S. Customs and Border Protection, Action: CBP proposes to extend the register online at https:// Regulations and Rulings, Office of expiration date of this information apps.cbp.gov/te_reg/index.asp?w=77 Trade, 90 K Street NE., 10th Floor, collection with no change to the by 5:00 p.m. EDT on May 27, 2016. Washington, DC 20229–1177, at 202– estimated burden hours. Feel free to share this information 325–0265. Type of Review: Extension (without with other interested members of your SUPPLEMENTARY INFORMATION: This change). organization or association. proposed information collection was Affected Public: Businesses. Members of the public who are pre- registered and later require cancellation, previously published in the Federal Estimated Number of Respondents: please do so in advance of the meeting Register (81 FR 7823) on February 16, 1,000. 2016, allowing for a 60-day comment by accessing one (1) of the following Estimated Number of Annual period. This notice allows for an links: https://apps.cbp.gov/te_reg/ Responses per Respondent: 200. additional 30 days for public comments. cancel.asp?w=76 to cancel an in person This process is conducted in accordance Estimated Number of Total Annual registration, or https://apps.cbp.gov/te_ with 5 CFR 1320.10. CBP invites the Responses: 200,000. reg/cancel.asp?w=77 to cancel a general public and other Federal Estimated Time per Response: 20 webinar registration. agencies to comment on proposed and/ minutes. ADDRESSES: The meeting will be held at or continuing information collections Estimated Total Annual Burden the U.S. International Trade pursuant to the Paperwork Reduction Hours: 66,000. Commission, 500 E Street SW.,

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Courtroom A, Washington, DC 20436. may end before the times indicated on ACTION: Notice of accreditation and There will be signage posted directing the schedule that is posted on the CBP approval of Saybolt LP as a commercial visitors to the location of the conference Web page, http://www.cbp.gov/trade/ gauger and laboratory. room. stakeholder-engagement/user-fee- For information on facilities or advisory-committee. SUMMARY: Notice is hereby given, services for individuals with FOR FURTHER INFORMATION CONTACT: Ms. pursuant to CBP regulations, that disabilities, or to request special Wanda Tate, Office of Trade Relations, Saybolt LP has been approved to gauge assistance at the meeting, contact Ms. U.S. Customs and Border Protection, petroleum and certain petroleum Wanda Tate, Office of Trade Relations, 1300 Pennsylvania Avenue NW., Room products and accredited to test U.S. Customs and Border Protection at 3.5A, Washington, DC 20229; telephone petroleum and certain petroleum (202) 344–1661 as soon as possible. (202) 344–1440; facsimile (202) 325– products for customs purposes for the To facilitate public participation, we 4290. next three years as of January 22, 2016. are inviting public comment on the SUPPLEMENTARY INFORMATION: Pursuant DATES: Effective: The accreditation and topics to be discussed by the committee, to the Federal Advisory Committee Act approval of Saybolt LP as commercial prior to the meeting as listed in the (5 U.S.C. Appendix), the Department of gauger and laboratory became effective ‘‘Agenda’’ section below. Homeland Security (DHS) hereby on January 22, 2016. The next triennial Comments must be submitted in announces the meeting of the U.S. inspection date will be scheduled for writing no later than May 23, 2016, and Customs and Border Protection User Fee January 2019. must be identified by Docket No. Advisory Committee (UFAC). The USCBP–2016–0018, and may be UFAC is tasked with providing advice FOR FURTHER INFORMATION CONTACT: submitted by one of the following to the Secretary of Homeland Security Approved Gauger and Accredited methods: (DHS) through the Commissioner of U.S. Laboratories Manager, Laboratories and • Federal eRulemaking Portal: http:// Customs and Border Protection (CBP) on Scientific Services Directorate, U.S. www.regulations.gov. Follow the matters related to the performance of Customs and Border Protection, 1300 instructions for submitting comments. inspections coinciding with the Pennsylvania Avenue NW., Suite • Email: [email protected]. assessment of an agriculture, customs, 1500N, Washington, DC 20229, tel. 202– Include the docket number in the or immigration user fee. 344–1060. subject line of the message. SUPPLEMENTARY INFORMATION: • Fax: (202) 325–4290. Agenda Notice is hereby given pursuant to 19 CFR 151.12 • Mail: Ms. Wanda Tate, Office of 1. Oath and Recognition of the and 19 CFR 151.13, that Saybolt LP, Trade Relations, U.S. Customs and incoming UFAC members. Border Protection, 1300 Pennsylvania 2. The Financial Assessment and 16025–A Jacinto Port Blvd., Houston, Avenue NW., Room 3.5A, Washington, Options Subcommittee will review and TX 77015, has been approved to gauge DC 20229. discuss their Statement of Work and petroleum and certain petroleum Instructions: All submissions received Next Steps. products and accredited to test must include the words ‘‘Department of 3. Public Comment Period. petroleum and certain petroleum Homeland Security’’ and the docket 4. The Process Improvements products for customs purposes, in number for this action. Comments Subcommittee will review and discuss accordance with the provisions of 19 received will be posted without their Statement of Work and Next Steps. CFR 151.12 and 19 CFR 151.13. Saybolt alteration at http://www.regulations.gov, 5. Public Comment Period. LP is approved for the following gauging procedures for petroleum and certain including any personal information Dated: May 9, 2016. petroleum products from the American provided. Do not submit personal Maria Luisa Boyce, Petroleum Institute (API): information to this docket. Senior Advisor for Private Sector Engagement, Docket: For access to the docket to Office of Trade Relations, U.S. Customs and API chapters Title read background documents or Border Protection. comments, go to http:// [FR Doc. 2016–11280 Filed 5–11–16; 8:45 am] 3 ...... Tank gauging. www.regulations.gov and search for BILLING CODE 9111–14–P 7 ...... Temperature determination. Docket Number USCBP–2016–0018. To 8 ...... Sampling. submit a comment, see the link on the 11 ...... Physical Properties. Regulations.gov Web site for ‘‘How do I DEPARTMENT OF HOMELAND 12 ...... Calculations. submit a comment?’’ located on the SECURITY 17 ...... Maritime measurement. right hand side of the main site page. There will be two (2) public comment U.S. Customs and Border Protection Saybolt LP is accredited for the following laboratory analysis periods held during the meeting on June Accreditation and Approval of Saybolt procedures and methods for petroleum 1, 2016. Speakers are requested to limit LP as a Commercial Gauger and and certain petroleum products set forth their comments to two (2) minutes or Laboratory less to facilitate greater participation. by the U.S. Customs and Border Contact the individual listed below to AGENCY: U.S. Customs and Border Protection Laboratory Methods (CBPL) register as a speaker. Please note that the Protection, Department of Homeland and American Society for Testing and public comment periods for speakers Security. Materials (ASTM):

CBPL No. ASTM Title

27–03 ...... D4006 Standard Test Method for Water in Crude Oil by Distillation. 27–05 ...... D4928 Standard Test Method for Water in Crude Oils by Coulometric Karl Fischer Titration. 27–06 ...... D473 Standard Test Method for Sediment in Crude Oils and Fuel Oils by the Extraction Method. 27–08 ...... D86 Standard Test Method for Distillation of Petroleum Products. 27–13 ...... D4294 Standard Test Method for Sulfur in Petroleum and Petroleum Products by Energy-Dispersive X-ray Fluores- cence Spectrometry.

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CBPL No. ASTM Title

27–46 ...... D5002 Density of Crude Oils by Digital Density Meter. 27–48 ...... D4052 Standard Test Method for Density and Relative Density of Liquids by Digital Density Meter. 27–50 ...... D93 Standard Test Methods for Flash-Point by Pensky-Martens Closed Cup Tester.

Anyone wishing to employ this entity DEPARTMENT OF HOMELAND 1500N, Washington, DC 20229, tel. 202– to conduct laboratory analyses and SECURITY 344–1060. gauger services should request and U.S. Customs and Border Protection SUPPLEMENTARY INFORMATION: Notice is receive written assurances from the hereby given pursuant to 19 CFR 151.12 entity that it is accredited or approved Accreditation and Approval of AmSpec and 19 CFR 151.13, that AmSpec by the U.S. Customs and Border Services, LLC, as a Commercial Services, LLC, 1980 Oriziba Ave., Signal Protection to conduct the specific test or Gauger and Laboratory Hill, CA 90755, has been approved to gauger service requested. Alternatively, gauge petroleum and certain petroleum inquiries regarding the specific test or AGENCY: U.S. Customs and Border products and accredited to test gauger service this entity is accredited Protection, Department of Homeland petroleum and certain petroleum or approved to perform may be directed Security. products for customs purposes, in to the U.S. Customs and Border ACTION: Notice of accreditation and accordance with the provisions of 19 Protection by calling (202) 344–1060. approval of AmSpec Services, LLC, as a CFR 151.12 and 19 CFR 151.13. AmSpec The inquiry may also be sent to commercial gauger and laboratory. Services, LLC is approved for the [email protected]. Please SUMMARY: Notice is hereby given, following gauging procedures for reference the Web site listed below for pursuant to CBP regulations, that petroleum and certain petroleum a complete listing of CBP approved AmSpec Services, LLC, has been products from the American Petroleum gaugers and accredited laboratories. approved to gauge petroleum and Institute (API): certain petroleum products and http://www.cbp.gov/about/labs- API chapters Title scientific/commercial-gaugers-and- accredited to test petroleum and certain petroleum products for customs laboratories 3 ...... Tank Gauging. purposes for the next three years as of 7 ...... Temperature Determination. Dated: May 6, 2016. August 26, 2015. 8 ...... Sampling. Ira S. Reese, DATES: Effective: The accreditation and 11 ...... Physical Properties, Executive Director, Laboratories and approval of AmSpec Services, LLC, as 12 ...... Calculations. Scientific Services Directorate. commercial gauger and laboratory 17 ...... Maritime Measurement. [FR Doc. 2016–11289 Filed 5–11–16; 8:45 am] became effective on August 26, 2015. BILLING CODE 9111–14–P The next triennial inspection date will AmSpec Services, LLC is accredited be scheduled for August 2018. for the following laboratory analysis FOR FURTHER INFORMATION CONTACT: procedures and methods for petroleum Approved Gauger and Accredited and certain petroleum products set forth Laboratories Manager, Laboratories and by the U.S. Customs and Border Scientific Services Directorate, U.S. Protection Laboratory Methods (CBPL) Customs and Border Protection, 1300 and American Society for Testing and Pennsylvania Avenue NW., Suite Materials (ASTM):

CBPL No. ASTM Title

27–05 ...... D4928 Standard Test Method for Water in Crude Oils by Coulometric Karl Fischer Titration. 27–06 ...... D473 Standard Test Method for Sediment in Crude Oils and Fuel Oils by the Extraction Method. 27–13 ...... D4294 Standard Test Method for Sulfur in Petroleum and Petroleum Products by Energy-Dispersive X-ray Fluores- cence Spectrometry. 27–46 ...... D5002 Density of Crude Oils by Digital Density Meter. 27–48 ...... D4052 Standard Test Method for Density and Relative Density of Liquids by Digital Density Meter.

Anyone wishing to employ this entity [email protected]. Please DEPARTMENT OF THE INTERIOR to conduct laboratory analyses and reference the Web site listed below for gauger services should request and a complete listing of CBP approved Fish and Wildlife Service receive written assurances from the gaugers and accredited laboratories. entity that it is accredited or approved [Docket No. FWS–HQ–ES–2015–0126; http://www.cbp.gov/about/labs- by the U.S. Customs and Border FXHC11220900000–156–FF09E33000] scientific/commercial-gaugers-and- Protection to conduct the specific test or laboratories Proposed Revisions to the U.S. Fish gauger service requested. Alternatively, and Wildlife Service Mitigation Policy inquiries regarding the specific test or Dated: May 6, 2016. Ira S. Reese, gauger service this entity is accredited AGENCY: Fish and Wildlife Service, or approved to perform may be directed Executive Director, Laboratories and Interior. to the U.S. Customs and Border Scientific Services Directorate. Protection by calling (202) 344–1060. [FR Doc. 2016–11291 Filed 5–11–16; 8:45 am] ACTION: Announcement of draft policy; reopening of comment period. The inquiry may also be sent to BILLING CODE 9111–14–P

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SUMMARY: We, the U.S. Fish and If you have already submitted parties an opportunity to review and Wildlife Service (Service), are reopening comments during the public comment comment on the proposed revisions, we the comment period for our March 8, period that began March 8, 2016, please are reopening the comment period on 2016, notice that announced proposed do not resubmit them. We have the proposed revisions until the date revisions to the Service Mitigation incorporated them into the public specified in DATES. Policy. This action will allow interested record, and we will fully consider them Authority persons additional time to comment on in the preparation of our final policy. the proposed revisions. Comments You may submit your comments by The multiple authorities for this previously submitted need not be one of the methods listed in ADDRESSES. action include the: Endangered Species resubmitted as they will be fully We request that you send comments Act of 1973, as amended (16 U.S.C. 1531 considered in preparation of the final only by the methods described in et seq.); Fish and Wildlife Coordination policy. ADDRESSES. Act, as amended, (16 U.S.C. 661– If you submit a comment via http:// 667(e)); National Environmental Policy DATES: We will accept comments from www.regulations.gov, your entire Act (42 U.S.C. 4321 et seq.); and others all interested parties until June 13, 2016. comment—including any personal identified in section 2 and Appendix A Please note that if you are using the identifying information—will be posted of the proposed policy (81 FR 12380). Federal eRulemaking Portal (see on the Web site. We will post all Dated: May 6, 2016. ADDRESSES, below), the deadline for hardcopy comments on http:// submitting an electronic comment is www.regulations.gov as well. If you James W. Kurth, 11:59 p.m. Eastern Time on this date. submit a hardcopy comment that Acting Director, U.S. Fish and Wildlife ADDRESSES: Document Review: The draft includes personal identifying Service. policy is available for review at http:// information, you may request at the top [FR Doc. 2016–11267 Filed 5–11–16; 8:45 am] www.regulations.gov, under docket of your document that we withhold this BILLING CODE 4333–15–P number FWS–HQ–ES–2015–0126. information from public review. General Comments: You may submit However, we cannot guarantee that we comments by one of the following will be able to do so. DEPARTMENT OF THE INTERIOR methods: Background Fish and Wildlife Service • Federal eRulemaking Portal: http:// www.regulations.gov. In the Search box, On March 8, 2016, we published a [Docket No. FWS–R8–NWRS–2016–0063; enter the Docket number for the notice (81 FR 12380) announcing FXRS12610800000–167–FF08R00000] proposed policy, which is FWS–HQ– proposed revisions to our Mitigation ES–2015–0126. You may enter a Policy (January 23, 1981; 46 FR 7644– Lower Klamath, Clear Lake, Tule Lake, comment by clicking on the ‘‘Comment 7663). The revisions were motivated by Upper Klamath, and Bear Valley Now!’’ button. Please ensure that you changes in conservation challenges and National Wildlife Refuges, Klamath have found the correct document before practices since 1981, including County, OR; Siskiyou and Modoc submitting your comment. accelerating loss of habitats, effects of Counties, CA: Draft Comprehensive • U.S. mail or hand delivery: Public climate change, and advances in Conservation Plan/Environmental Comments Processing, Attn: Docket No. conservation science. The revised policy Impact Statement; Correction provides a framework for applying a FWS–HQ–ES–2015–0126; Division of AGENCY: Fish and Wildlife Service, landscape-scale approach to achieve, Policy, Performance and Management; Interior. U.S. Fish and Wildlife Service; 5275 through application of the mitigation hierarchy, a net gain in conservation ACTION: Notice of availability; request Leesburg Pike, MS: BPHC; Falls Church, for comments; correction. VA 22041–3803. outcomes, or at a minimum, no net loss of resources and their values, services, We will post all comments on http:// SUMMARY: On May 6, 2016, we, the U.S. www.regulations.gov. This generally and functions resulting from proposed Fish and Wildlife Service, announced means that we will post any personal actions. The primary intent of the policy the availability of a Draft information you provide us (see Public is to apply mitigation in a strategic Comprehensive Conservation Plan Comments, below, for more manner that ensures an effective linkage (CCP) and Environmental Impact information). with conservation strategies at Statement (EIS) for Lower Klamath, appropriate landscape scales. Clear Lake, Tule Lake, Upper Klamath, FOR FURTHER INFORMATION CONTACT: The revised policy integrates all and Bear Valley National Wildlife Jason Miller, U.S. Fish and Wildlife authorities that allow the Service to Refuges (Refuges) for review and Service, Branch of Conservation recommend or require mitigation of comment. In one instance, we printed Planning Assistance, 5275 Leesburg impacts to federal trust fish and wildlife the incorrect docket number for Pike, Falls Church, VA 22041–3803; resources, and other resources identified interested parties to use to submit telephone 703–358–1756. in statute, during development comments. The correct docket number SUPPLEMENTARY INFORMATION: processes. It is intended to serve as a is FWS–R8–NWRS–2016–0063. With single umbrella policy under which the Public Comments this notice, we correct that error. Service may issue more detailed We will accept written comments policies or guidance documents FOR FURTHER INFORMATION CONTACT: during this reopened comment period covering specific activities in the future. Klamath Refuge Planner, (916) 414– on our notice announcing proposed Our March 8, 2016, notice stated that 6464 (phone). revisions to the Service Mitigation we would accept comments on the SUPPLEMENTARY INFORMATION: In the Policy that published in the Federal proposed revisions to our Mitigation Federal Register of May 6, 2016 (81 FR Register on March 8, 2016 (81 FR Policy for 60 days, ending May 9, 2016. 27468; FR Doc. 2016–10717), in the 12380). We will consider comments and During the course of the comment second column of page 27468 in the information that we receive from all period on the notice, we received ADDRESSES section, correct the docket interested parties on or before the close requests to extend the public comment number from ‘‘FWS–R8–R–2016–0063’’ of the comment period (see DATES). period. In order to provide all interested to ‘‘FWS–R8–NWRS–2016–0063.’’

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Dated: May 9, 2016. DEPARTMENT OF THE INTERIOR submitted a request to OMB to renew its Tina A. Campbell, approval for the collection of Chief, Division of Policy, Performance, and Office of Surface Mining Reclamation information found at 30 CFR part 702— Management Programs, U.S. Fish and Wildlife and Enforcement Exemption for Coal Extraction Service. [S1D1S SS08011000 SX064A000 Incidental to the Extraction of Other [FR Doc. 2016–11214 Filed 5–11–16; 8:45 am] 167S180110; S2D2S SS08011000 Minerals. OSMRE is requesting a 3-year term of approval for this collection. BILLING CODE 4333–15–P SX064A000 16XS501520] An agency may not conduct or Notice of Proposed Information sponsor, and a person is not required to DEPARTMENT OF THE INTERIOR Collection; Request for Comments for respond to, a collection of information 1029–0089 unless it displays a currently valid OMB control number. The OMB control Geological Survey AGENCY: Office of Surface Mining number for this collection of Reclamation and Enforcement, Interior. information is 1029–0089 and is [GX16AE6000C1000] ACTION: Notice and request for displayed at 30 CFR 702.10. comments. Exclusive Licenses As required under 5 CFR 1320.8(d), a Federal Register notice soliciting SUMMARY: In compliance with the comments on this collection of AGENCY: U.S. Geological Survey, Paperwork Reduction Act of 1995, the information was published on February Department of the Interior. Office of Surface Mining Reclamation 16, 2016 (81 FR 7829). No comments and Enforcement (OSMRE) is ACTION: Notice of intent to grant an were received. This notice provides the announcing that the information exclusive license. public with an additional 30 days in collection request for the Exemption for which to comment on the following Coal Extraction Incidental to the information collection activity: SUMMARY: The Notice is hereby given Extraction of Other Minerals, has been Title: 30 CFR part 702—Exemption for that the U.S. Geological Survey intends submitted to the Office of Management Coal Extraction Incidental to the to grant to Williamson and Associates, and Budget (OMB) for review and Extraction of Other Minerals. 1124 NW 53rd ST, Seattle, WA 98107, approval. The information collection an exclusive license to practice the OMB Control Number: 1029–0089. request describes the nature of the Summary: This Part implements the following: A system and method, to information collection and its expected requirement in Section 701(28) of the utilize induced polarization to locate burden and cost. Surface Mining Control and and detect minerals, and oil plumes DATES: Comments must be submitted on Reclamation Act of 1977 (SMCRA), below the surface water. or before June 13, 2016, to be assured of which grants an exemption from the DATES: Comments must be received consideration. requirements of SMCRA to operators fifteen (15) days from the effective date ADDRESSES: Submit comments to the extracting not more than 16 2/3 of this notice. Office of Information and Regulatory percentage tonnage of coal incidental to Affairs, Office of Management and the extraction of other minerals. This FOR FURTHER INFORMATION CONTACT: Budget, Department of the Interior Desk information will be used by the Benjamin Henry, Technology Enterprise Officer, via email at OIRA_submission@ regulatory authorities to make that Specialist, Office of Policy and omb.eop.gov, or by facsimile to (202) determination. Analysis, U.S. Geological Survey, 12201 395–5806. Also, please send a copy of Bureau Form Number: None. Sunrise Valley Dr., MS 153, Reston, VA your comments to John Trelease, Office Frequency of Collection: Once and 20192, 703–648–4344. of Surface Mining Reclamation and annually thereafter. Enforcement, 1951 Constitution Ave. Description of Respondents: SUPPLEMENTARY INFORMATION: It is in the NW., Room 203—SIB, Washington, DC Producers of coal and other minerals, public interest to license this invention, 20240, or electronically to jtrelease@ and State regulatory authorities. as Williamson and Associates, osmre.gov. Please reference 1029–0089 Total Annual Responses: 127. submitted a complete and sufficient in your correspondence. Total Annual Burden Hours: 396. application for a license. The Total Non-wage Costs: $600. FOR FURTHER INFORMATION CONTACT: To prospective exclusive license will be Obligation to Respond: Required in receive a copy of the information order to obtain or retain benefits. royalty-bearing and will comply with collection request contact John Trelease the terms and conditions of 35 U.S.C. Send comments on the need for the at (202) 208–2783, or electronically at collection of information for the 209 and 37 CFR 404.7. The prospective [email protected]. You may also exclusive license may be granted unless, performance of the functions of the review the information collection agency; the accuracy of the agency’s within fifteen (15) days from the date of request online at http:// this published Notice, the U.S. burden estimates; ways to enhance the www.reginfo.gov. Follow the quality, utility and clarity of the Geological Survey Office of Policy & instructions to review Department of the Analysis receives written evidence and information collection; and ways to Interior collections under review by minimize the information collection argument which establishes that the OMB. burden on respondents, such as use of grant of the license would not be SUPPLEMENTARY INFORMATION: OMB automated means of collection of the consistent with the requirements of 35 regulations at 5 CFR part 1320, which information, to the offices listed in the U.S.C. 209 and 37 CFR 404.7. implement provisions of the Paperwork ADDRESSES section. Please refer to OMB Katherine McCulloch, Reduction Act of 1995 (Pub. L. 104–13), control number 1029–0089 in all Deputy Associate Director for Administration. require that interested members of the correspondence. public and affected agencies have an Before including your address, phone [FR Doc. 2016–11174 Filed 5–11–16; 8:45 am] opportunity to comment on information number, email address, or other BILLING CODE 4338–11–P collection and recordkeeping activities personal identifying information in your [see 5 CFR 1320.8(d)]. OSMRE has comment, you should be aware that

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your entire comment—including your DEPARTMENT OF JUSTICE ACTION: 60-day notice. personal identifying information—may be made publicly available at any time. Antitrust Division SUMMARY: The Department of Justice While you can ask us in your comment (DOJ), Civil Rights Division, Disability Notice Pursuant to the National Rights Section (DRS), will submit the to withhold your personal identifying Cooperative Research and Production following information collection request information from public review, we Act of 1993—Cooperative Research to the Office of Management and Budget cannot guarantee that we will be able to Group on CHEDE–VII (OMB) for review and approval in do so. accordance with the Paperwork Notice is hereby given that, on April Dated: May 5, 2016. Reduction Act of 1995 (PRA). 21, 2016, pursuant to Section 6(a) of the Harry J. Payne, National Cooperative Research and DATES: Comments are encouraged and Chief, Division of Regulatory Support. Production Act of 1993, 15 U.S.C. 4301 will be accepted for 60 days until July [FR Doc. 2016–11273 Filed 5–11–16; 8:45 am] et seq. (‘‘the Act’’), Southwest Research 11, 2016. BILLING CODE 4310–05–P Institute—Cooperative Research Group FOR FURTHER INFORMATION CONTACT: If on CHEDE–VII (‘‘CHEDE–VII’’) has filed you have additional comments written notifications simultaneously (especially on the estimated public with the Attorney General and the burden or associated response time), JUDICIAL CONFERENCE OF THE Federal Trade Commission disclosing suggestions, need a copy of the UNITED STATES changes in its membership. The proposed information collection notifications were filed for the purpose instrument with instructions, or need Meeting of the Judicial Conference; of extending the Act’s provisions additional information, please contact Committee on Rules of Practice and limiting the recovery of antitrust Rebecca B. Bond, Chief, Disability Procedure plaintiffs to actual damages under Rights Section, Civil Rights Division, specified circumstances. Specifically, U.S. Department of Justice, by any one AGENCY: Committee on Rules of Practice Toyota Motor Corporation, Shizuoka of the following methods: By email at and Procedure, Judicial Conference of Perfecture, JAPAN; and Komatsu Ltd., [email protected]; by regular U.S. the United States. Tochigi-Ken, JAPAN, have been added mail at Disability Rights Section, Civil as parties to this venture. Rights Division, U.S. Department of ACTION: Notice of open meeting. No other changes have been made in Justice, P.O. Box 2885, Fairfax, VA either the membership or planned 22031–0885; by overnight mail, courier, SUMMARY: The Committee on Rules of activity of the group research project. or hand delivery at Disability Rights Practice and Procedure will hold a Membership in this group research Section, Civil Rights Division, U.S. meeting on June 6, 2016, which will project remains open, and CHEDE–VII Department of Justice, 1425 New York continue the morning of June 7, 2016, if intends to file additional written Avenue NW., Suite 4039, Washington, necessary. The meeting will be open to notifications disclosing all changes in DC 20005; or by phone at (800) 514– public observation but not participation. membership. 0301 (voice) or (800) 514–0383 (TTY) An agenda and supporting materials On January 6, 2016, CHEDE–VII filed (the DRS Information Line). will be posted at least 7 days in advance its original notification pursuant to SUPPLEMENTARY INFORMATION: Written of the meeting at: http:// Section 6(a) of the Act. The Department comments and suggestions from the www.uscourts.gov/rules-policies/ of Justice published a notice in the public and affected agencies concerning records-and-archives-rules-committees/ Federal Register pursuant to Section the proposed collection of information agenda-books. 6(b) of the Act on February 2, 2016, (81 are encouraged. Your comments should FR 5484). address one or more of the following DATES: June 6–7, 2016. The last notification was filed with four points: Time: 8:30 a.m. to 5:00 p.m. the Department on March 15, 2016. A • Evaluate whether the proposed notice was published in the Federal collection of information is necessary ADDRESSES: Thurgood Marshall Federal Register pursuant to section 6(b) of the for the proper performance of the Judiciary Building, Mecham Conference Act on April 14, 2016(81 FR 22121). function of the agency, including Center, One Columbus Circle NE., Patricia A. Brink, whether the information will have Washington, DC 20544. practical utility; Director of Civil Enforcement, Antitrust • FOR FURTHER INFORMATION CONTACT: Division. Evaluate the accuracy of the Rebecca A. Womeldorf, Rules [FR Doc. 2016–11137 Filed 5–11–16; 8:45 am] agency’s estimate of the burden of the proposed collection of information, Committee Secretary, Rules Committee BILLING CODE P Support Office, Administrative Office of including the validity of the the United States Courts, Washington, methodology and assumptions used; • DC 20544, telephone (202) 502–1820. DEPARTMENT OF JUSTICE Evaluate whether, and if so, how, the quality, utility, and clarity of the Dated: May 6, 2016. [OMB Number 1190–NEW] information to be collected can be Rebecca A. Womeldorf, enhanced; and Agency Information Collection • Rules Committee Secretary. Activities; Proposed eCollection; Minimize the burden of the [FR Doc. 2016–11140 Filed 5–11–16; 8:45 am] eComments Requested; Assessing the collection of information on those who are to respond, including through the BILLING CODE 2210–55–P Potential Monetized Benefits of Captioning Web Content for use of appropriate automated, Individuals Who Are Deaf or Hard of electronic, mechanical, or other Hearing technological collection techniques or other forms of information technology, AGENCY: Civil Rights Division, e.g., permitting electronic submission of Department of Justice. responses.

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Overview of This Information estimates that nearly all of the telephone at 202–693–4129 (this is not Collection approximately 1,070 respondents will a toll-free number) or by email at DOL_ _ 1. Type of information collection: fully complete the questions. PRA [email protected]. Submit comments about this request New information collection. 6. An estimate of the total public by mail or courier to the Office of 2. The title of the form/collection: burden (in hours) associated with the Information and Regulatory Affairs, Assessing the Potential Monetized collection: The estimated public burden Attn: OMB Desk Officer for DOL–OS, Benefits of Captioning Web Content for associated with this collection is 178 Office of Management and Budget, Individuals Who Are Deaf or Hard of hours. It is estimated that respondents Room 10235, 725 17th Street NW., Hearing. will take an average of 10 minutes (1/ Washington, DC 20503; by Fax: 202– 3. The agency form number, if any, 6 of an hour) to complete the questions. 395–5806 (this is not a toll-free and the applicable component of the The burden hours for collecting number); or by email: OIRA_ Department sponsoring the collection: respondent data sum to 178.33 hours × [email protected]. Commenters Form Number: None. (1,070 respondents 1/6 hours = 178 are encouraged, but not required, to Component: The applicable and 1/3 hours). send a courtesy copy of any comments component within the Department of If additional information is required, by mail or courier to the U.S. Justice is the Disability Rights Section in contact: Jerri Murray, Department Department of Labor-OASAM, Office of the Civil Rights Division. Clearance Officer, United States the Chief Information Officer, Attn: 4. Affected public who will be asked Department of Justice, Justice Departmental Information Compliance or required to respond, as well as a brief Management Division, Policy and Management Program, Room N1301, abstract: Affected Public (Primary): Planning Staff, Two Constitution 200 Constitution Avenue NW., Individuals who are deaf or hard of Square, 145 N Street NE., 3E.405B, Washington, DC 20530. Washington, DC 20210; or by email: hearing will be asked to respond. [email protected]. Affected Public (Other): None. Dated: May 6, 2016. FOR FURTHER INFORMATION CONTACT: Abstract: DOJ’s Civil Rights Division, Jerri Murray, Disability Rights Section (DRS), is Contact Michel Smyth by telephone at Department Clearance Officer for PRA, U.S. 202–693–4129 (this is not a toll-free requesting PRA approval of a new Department of Justice. _ _ collection that would request number) or by email at DOL PRA [FR Doc. 2016–11151 Filed 5–11–16; 8:45 am] [email protected]. information about the perceived BILLING CODE 4410–13–P monetary value of captioning on Web Authority: 44 U.S.C. 3507(a)(1)(D). sites from individuals who are deaf or SUPPLEMENTARY INFORMATION: This ICR hard of hearing for the purpose of DEPARTMENT OF LABOR seeks PRA authority for a DOL generic estimating the potential monetized solution for site visits for research benefits of captioning audio and video Office of the Secretary purposes information collection in order content on the Web. DRS is not to be able to carry out evaluation data suggesting that people with disabilities Agency Information Collection collection in a timely manner and to should be asked to pay for captioning; Activities; Submission for OMB facilitate the gathering of critical rather, it intends to ask individuals Review; Comment Request; information to support analysis around about the theoretical monetary value Department of Labor Generic Solution core research questions. Qualitative that they place on the captioning of for Site Visits for Research Purposes information will be collected from audio and video Web content in order individuals who are familiar with, are to estimate how highly they value ACTION: Notice. administering or participating in, the captioning. The collection will also intervention being evaluated. Site visits SUMMARY: request additional information about The Department of Labor provide critical data for research and how frequently individuals who are (DOL) is submitting the information evaluation projects that can: (1) Describe deaf or hard of hearing access audio collection request (ICR) proposal titled, implementation issues, the context in content on Web sites, what type of ‘‘Department of Labor Generic Solution which the intervention was audio content they access, how often for Site Visits for Research Purposes,’’ to implemented, services, management this content is not captioned, how much the Office of Management and Budget and costs; (2) describe the experiences additional time (if any) they spend (OMB) for review and approval for use of service providers at each of the study trying to access content or information in accordance with the Paperwork sites, including site perspectives on when the content is not captioned, and Reduction Act (PRA) of 1995 (44 U.S.C. implementation challenges and whether lack of captioning makes using 3501 et seq.). Public comments on the intervention effects; (3) describe the the Internet more difficult. This ICR are invited. experiences and responses of information will enhance DRS’s ability DATES: The OMB will consider all individuals administering or to monetize the benefits of any written comments that agency receives participating in the intervention; (4) captioning requirements imposed by on or before June 13, 2016. document the extent to which the future rulemaking under the Americans ADDRESSES: A copy of this ICR with intervention was implemented as with Disabilities Act (ADA) for applicable supporting documentation; planned; and (5) describe the extent to individuals who are deaf or hard of including a description of the likely which treatment and control or hearing. respondents, proposed frequency of comparison groups received the 5. An estimate of the total number of response, and estimated total burden intended services of the intervention, if respondents and the amount of time may be obtained free of charge from the applicable. Sources of qualitative estimated for an average respondent to RegInfo.gov Web site at http:// information proposed for collection respond: An estimated 1,070 www.reginfo.gov/public/do/ include: (1) Exploratory discussions respondents will complete the PRAViewICR?ref_nbr=201410-1290-002 during site recruitment; (2) in-person or questions. It is estimated that an average (this link will only become active on the telephone discussions with individuals of 10 minutes per respondent is needed day following publication of this notice) and/or groups from selected sites; and to complete the questions. DRS or by contacting Michel Smyth by (3) focus groups.

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This proposed information collection Total Estimated Annual Time Burden: Management Program, Room N1301, is subject to the PRA. A Federal agency 20,000 hours. 200 Constitution Avenue NW., generally cannot conduct or sponsor a Total Estimated Annual Other Costs Washington, DC 20210; or by email: collection of information, and the public Burden: $0. [email protected]. is generally not required to respond to Dated: May 5, 2016. FOR FURTHER INFORMATION CONTACT: an information collection, unless it is Michel Smyth, Michel Smyth by telephone at 202–693– approved by the OMB under the PRA Departmental Clearance Officer. 4129, TTY 202–693–8064, (these are not and displays a currently valid OMB [FR Doc. 2016–11185 Filed 5–11–16; 8:45 am] toll-free numbers) or sending an email Control Number. In addition, to [email protected]. BILLING CODE 4510–HX–P notwithstanding any other provisions of Authority: 44 U.S.C. 3507(a)(1)(D). law, no person shall generally be subject SUPPLEMENTARY INFORMATION: This ICR to penalty for failing to comply with a DEPARTMENT OF LABOR seeks approval under the PRA for collection of information if the revisions to the Occupational Code collection of information does not Office of the Secretary Assignment information collection. display a valid Control Number. See 5 Information collected on Form ETA– CFR 1320.5(a) and 1320.6. For Agency Information Collection Activities; Submission for OMB 741, Occupational Code Assignment, is additional information, see the related necessary to help occupational notice published in the Federal Register Review; Comment Request; Occupational Code Assignment information users relate an occupational on July 23, 2013 (78 FR 44157). specialty or job title to an occupational Interested parties are encouraged to ACTION: Notice. code and title within the framework of send comments to the OMB, Office of the Occupational Information Network. Information and Regulatory Affairs at SUMMARY: The Department of Labor The form helps provide occupational ADDRESSES the address shown in the (DOL) is submitting the Employment codes for jobs where duties have section within thirty (30) days of and Training Administration (ETA) changed to the extent that the published publication of this notice in the Federal sponsored information collection information is no longer appropriate or Register. In order to help ensure request (ICR) revision titled, the user is unable to classify the job on appropriate consideration, comments ‘‘Occupational Code Assignment,’’ to his or her own. This information should mention OMB ICR Reference the Office of Management and Budget collection has been classified as a Number 201410–1290–002. The OMB is (OMB) for review and approval for use revision because of minor revisions to particularly interested in comments in accordance with the Paperwork the form and because of additional that: Reduction Act (PRA) of 1995 (44 U.S.C. respondents from the American • Evaluate whether the proposed 3501 et seq.). Public comments on the Apprenticeship grant competition. collection of information is necessary ICR are invited. Wagner-Peyser Act section 15 for the proper performance of the DATES: The OMB will consider all authorizes this information collection. functions of the agency, including written comments that agency receives See 29 U.S.C. 49l–1. whether the information will have on or before June 13, 2016. This information collection is subject practical utility; ADDRESSES: to the PRA. A Federal agency generally • Evaluate the accuracy of the A copy of this ICR with cannot conduct or sponsor a collection agency’s estimate of the burden of the applicable supporting documentation; including a description of the likely of information, and the public is proposed collection of information, respondents, proposed frequency of generally not required to respond to an including the validity of the response, and estimated total burden information collection, unless it is methodology and assumptions used; • Enhance the quality, utility, and may be obtained free of charge from the approved by the OMB under the PRA clarity of the information to be RegInfo.gov Web site at http:// and displays a currently valid OMB www.reginfo.gov/public/do/ Control Number. In addition, collected; and _ • Minimize the burden of the PRAViewICR?ref nbr=201603-1205-004 notwithstanding any other provisions of collection of information on those who (this link will only become active on the law, no person shall generally be subject are to respond, including through the day following publication of this notice) to penalty for failing to comply with a use of appropriate automated, or by contacting Michel Smyth by collection of information that does not electronic, mechanical, or other telephone at 202–693–4129, TTY 202– display a valid Control Number. See 5 technological collection techniques or 693–8064, (these are not toll-free CFR 1320.5(a) and 1320.6. The DOL numbers) or sending an email to DOL_ obtains OMB approval for this other forms of information technology, _ e.g., permitting electronic submission of PRA [email protected]. information collection under Control responses. Submit comments about this request Number 1205–0137. The current Agency: DOL–OS. by mail or courier to the Office of approval is scheduled to expire on May Title of Collection: Department of Information and Regulatory Affairs, 31, 2016; however, the DOL notes that Labor Generic Solution for Site Visits Attn: OMB Desk Officer for DOL–ETA, existing information collection for Research Purposes. Office of Management and Budget, requirements submitted to the OMB OMB ICR Reference Number: 201410– Room 10235, 725 17th Street NW., receive a month-to-month extension 1290–002. Washington, DC 20503; by Fax: 202– while they undergo review. New Affected Public: State, Local, or Tribal 395–5806 (this is not a toll-free requirements would only take effect Governments; Federal Government; number); or by email: OIRA_ upon OMB approval. For additional Individuals or Households; Private [email protected]. Commenters substantive information about this ICR, Sector—businesses or other for-profits, are encouraged, but not required, to see the related notice published in the not-for-profit institutions, farms. send a courtesy copy of any comments Federal Register on December 17, 2015 Total Estimated Number of by mail or courier to the U.S. (80 FR 78769). Respondents: 20,000. Department of Labor—OASAM, Office Interested parties are encouraged to Total Estimated Number of of the Chief Information Officer, Attn: send comments to the OMB, Office of Responses: 20,000. Departmental Information Compliance Information and Regulatory Affairs at

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the address shown in the ADDRESSES DATES: All meetings are Eastern time Music (review of applications): This section within thirty (30) days of and ending times are approximate: meeting will be closed. publication of this notice in the Federal Dance (review of applications): This Date and time: June 22, 2016; 3:00 Register. In order to help ensure meeting will be closed. p.m. to 5:00 p.m. appropriate consideration, comments Date and time: June 2, 2016; 12:00 Media Arts (review of applications): should mention OMB Control Number p.m. to 2:00 p.m. This meeting will be closed. 1205–0137. The OMB is particularly Dance (review of applications): This Date and time: June 27, 2016; 11:30 interested in comments that: a.m. to 1:30 p.m. • meeting will be closed. Evaluate whether the proposed Date and time: June 2, 2016; 3:00 p.m. Arts Education (review of applications): collection of information is necessary to 5:00 p.m. This meeting will be closed. for the proper performance of the Dance (review of applications): This Date and time: June 28, 2016; 1:30 functions of the agency, including meeting will be closed. p.m. to 3:30 p.m. whether the information will have Date and time: June 3, 2016; 12:00 Opera (review of applications): This practical utility; p.m. to 2:00 p.m. meeting will be closed. • Evaluate the accuracy of the Artist Communities (review of Date and time: June 28, 2016; 12:00 agency’s estimate of the burden of the applications): This meeting will be p.m. to 2:00 p.m. proposed collection of information, closed. Opera (review of applications): This including the validity of the Date and time: June 13, 2016; 2:00 meeting will be closed. methodology and assumptions used; Date and time: June 28, 2016; 3:00 • Enhance the quality, utility, and p.m. to 4:00 p.m. Local Arts Agencies (review of p.m. to 5:00 p.m. clarity of the information to be Presenting & Multidisciplinary Works collected; and applications): This meeting will be • closed. (review of applications): This Minimize the burden of the meeting will be closed. collection of information on those who Date and time: June 3, 2016; 3:00 p.m. to 5:00 p.m. Date and time: June 28, 2016; 2:00 are to respond, including through the p.m. to 4:00 p.m. use of appropriate automated, Arts Education (review of applications): This meeting will be closed. Visual Arts (review of applications): electronic, mechanical, or other This meeting will be closed. technological collection techniques or Date and time: June 15, 2016; 1:00 p.m. to 3:00 p.m. Date and time: June 28, 2016; 11:30 other forms of information technology, a.m. to 1:30 p.m. e.g., permitting electronic submission of Folk & Traditional Arts (review of applications): This meeting will be Visual Arts (review of applications): responses. This meeting will be closed. Agency: DOL–ETA. closed. Title of Collection: Occupational Code Date and time: June 15, 2016; 1:00 Date and time: June 28, 2016; 2:30 Assignment. p.m. to 3:00 p.m. p.m. to 4:30 p.m. OMB Control Number: 1205–0137. Folk & Traditional Arts (review of Media Arts (review of applications): Affected Public: State, Local, and applications): This meeting will be This meeting will be closed. Tribal Governments. closed. Date and time: June 29, 2016; 11:30 Total Estimated Number of Date and time: June 16, 2016; 1:00 a.m. to 1:30 p.m. Respondents: 30. p.m. to 3:00 p.m. Media Arts (review of applications): Total Estimated Number of Theater and Musical Theater (review of This meeting will be closed. Responses: 30. applications): This meeting will be Date and time: June 29, 2016; 2:30 Total Estimated Annual Time Burden: closed. p.m. to 4:30 p.m. 15 hours. Date and time: June 16, 2016; 1:00 Presenting & Multidisciplinary Works Total Estimated Annual Other Costs p.m. to 3:00 p.m. (review of applications): This Burden: $0. Theater and Musical Theater (review of meeting will be closed. Dated: May 6, 2016. applications): This meeting will be Date and time: June 29, 2016; 2:00 Michel Smyth, closed. p.m. to 4:00 p.m. Departmental Clearance Officer. Date and time: June 16, 2016; 4:00 Presenting & Multidisciplinary Works (review of applications): This [FR Doc. 2016–11186 Filed 5–11–16; 8:45 am] p.m. to 6:00 p.m. meeting will be closed. BILLING CODE 4510–FN–P Music (review of applications): This meeting will be closed. Date and time: June 30, 2016; 2:00 Date and time: June 20, 2016; 12:00 p.m. to 4:00 p.m. p.m. to 2:00 p.m. Visual Arts (review of applications): NATIONAL FOUNDATION ON THE This meeting will be closed. ARTS AND THE HUMANITIES Music (review of applications): This meeting will be closed. Date and time: June 30, 2016; 11:30 National Endowment for the Arts Date and time: June 20, 2016; 3:00 a.m. to 1:30 p.m. p.m. to 5:00 p.m. Theater and Musical Theater (review of Arts Advisory Panel Meetings Design (review of applications): This applications): This meeting will be closed. AGENCY: National Endowment for the meeting will be closed. Date and time: June 21, 2016; 12:00 Date and time: June 30, 2016; 1:00 Arts, National Foundation on the Arts p.m. to 3:00 p.m. and Humanities. p.m. to 2:30 p.m. ADDRESSES: National Endowment for the ACTION: Notice of meetings. Design (review of applications): This meeting will be closed. Arts, Constitution Center, 400 7th St. SUMMARY: Pursuant to the Federal Date and time: June 21, 2016; 3:00 SW., Washington, DC 20506. Advisory Committee Act, as amended, p.m. to 5:30 p.m. FOR FURTHER INFORMATION CONTACT: notice is hereby given that 29 meetings Music (review of applications): This Further information with reference to of the Arts Advisory Panel to the meeting will be closed. these meetings can be obtained from Ms. National Council on the Arts will be Date and time: June 22, 2016; 12:00 Kathy Plowitz-Worden, Office of held by teleconference. p.m. to 2:00 p.m. Guidelines & Panel Operations, National

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Endowment for the Arts, Washington, concerning broadening participation in NRC about the availability of DC 20506; [email protected], or call science and engineering. information regarding this document. 202–682–5691. You may obtain publicly-available Agenda SUPPLEMENTARY INFORMATION: The information related to this document closed portions of meetings are for the D Opening Statement by the CEOSE using any of the following methods: purpose of Panel review, discussion, Chair • Federal Rulemaking Web site: Go to D evaluation, and recommendations on NSF Executive Liaison Report http://www.regulations.gov and search D Updates from the Federal Liaisons financial assistance under the National for Docket ID NRC–2015–0169. Address D Presentation: NSF INCLUDES Foundation on the Arts and the questions about NRC dockets to Carol (Inclusion across the Nation of Humanities Act of 1965, as amended, Gallagher; telephone: 301–415–3463; Communities of Learners that have including information given in email: [email protected]. For been Underrepresented for Diversity confidence to the agency. In accordance technical questions, contact the in Engineering and Science) individual listed in the FOR FURTHER with the determination of the Chairman D Leadership Discussion: Broadening INFORMATION CONTACT section of this of February 15, 2012, these sessions will Participation in STEM: Disciplinary be closed to the public pursuant to document. Highlights • NRC’s Agencywide Documents subsection (c)(6) of section 552b of title D Presentation: Science of Broadening 5, United States Code. Access and Management System Participation (ADAMS): You may obtain publicly- Dated: May 9, 2016. D Panel Discussion: Evaluation of NSF available documents online in the BP Programs in EHR (Directorate for Kathy Plowitz-Worden, ADAMS Public Documents collection at Education and Human Resources) Panel Coordinator, National Endowment for http://www.nrc.gov/reading-rm/ D Working Session with EAC the Arts. adams.html. To begin the search, select (Evaluation and Assessment [FR Doc. 2016–11180 Filed 5–11–16; 8:45 am] ‘‘ADAMS Public Documents’’ and then Capability): Framework for a BILLING CODE 7537–01–P select ‘‘Begin Web-based ADAMS Broadening Participation Search.’’ For problems with ADAMS, Accountability System—Part II D Work Session: 2015–2016 CEOSE please contact the NRC’s Public NATIONAL SCIENCE FOUNDATION Biennial Report to Congress Document Room (PDR) reference staff at 1–800–397–4209, 301–415–4737, or by Committee on Equal Opportunities in Dated: May 8, 2016. email to [email protected]. The Science and Engineering Notice of Crystal Robinson, ADAMS accession number for each Meeting Committee Management Officer. document referenced in this document In accordance with the Federal [FR Doc. 2016–11166 Filed 5–11–16; 8:45 am] (if that document is available in Advisory Committee Act (Pub. L. 92– BILLING CODE 7555–01–P ADAMS) is provided the first time that a document is referenced. 463, as amended), the National Science • Foundation announces the following NRC’s PDR: You may examine and meeting: NUCLEAR REGULATORY purchase copies of public documents at Name: Committee on Equal COMMISSION the NRC’s PDR, Room O1–F21, One Opportunities in Science and White Flint North, 11555 Rockville [Docket Nos. 50–18, 50–73 and 50–183; Pike, Rockville, Maryland 20852. Engineering (CEOSE) #1173. NRC–2015–0169] Dates/Time: June 8, 2016 1:00 p.m.– FOR FURTHER INFORMATION CONTACT: Jack 5:30 p.m., June 9, 2016 8:30 a.m.–3:30 GE Hitachi Nuclear Energy; Vallecitos Parrott, Division of Decommissioning, p.m. Nuclear Center, Partial Site Release Uranium Recovery, and Waste Place: National Science Foundation Programs, Office of Nuclear Material (NSF), 4201 Wilson Boulevard, AGENCY: Nuclear Regulatory Safety and Safeguards, U.S. Nuclear Arlington, VA 22230. To help facilitate Commission. Regulatory Commission, Washington, your entry into the building, please ACTION: Environmental assessment and DC 20555–00001; telephone: 301–415– contact Vickie Fung ([email protected]) on finding of no significant impact; 6634; email: [email protected]. or prior to June 6, 2016. issuance. SUPPLEMENTARY INFORMATION: Type of Meeting: Open. SUMMARY: The U.S. Nuclear Regulatory Contact Person: Dr. Bernice I. Introduction Commission (NRC) is issuing an Anderson, Senior Advisor and CEOSE The NRC received, by letter dated environmental assessment and finding Executive Secretary, Office of April 24, 2015 (ADAMS Accession No. of no significant impact regarding a Integrative Activities (OIA), National ML15114A437), a request from GE partial site release for license Nos. DPR– Science Foundation, 4201 Wilson Hitachi Nuclear Energy (GEH or 1 (Vallecitos Boiling Water Reactor), R– Boulevard, Arlington, VA 22230. licensee) to approve a partial site release 33 (GE-Hitachi Nuclear Test Reactor), Contact Information: 703–292–8040/ of a portion of its Vallecitos Nuclear and DR–10 (Empire State Atomic [email protected]. Center (VNC) site located at 6705 Development Agency Vallecitos Minutes: Meeting minutes and other Vallecitos Road, Sunol, California. The Experimental Superheat Reactor), issued information may be obtained from the April 24, 2015 letter transmitted a to GE Hitachi Nuclear Energy at the CEOSE Executive Secretary at the above report, entitled ‘‘Release of North Vallecitos Nuclear Center in Sunol, address or the Web site at http:// Section of Vallecitos, California Site,’’ California. www.nsf.gov/od/oia/activities/ceose/ prepared by GEH evaluating the index.jsp. DATES: The environmental assessment proposed release (ADAMS Accession Purpose of Meeting: To study data, and finding of no significant impact set No. ML15114A438). The VNC site programs, policies, and other forth in this document is available on contains four reactor units. Two of the information pertinent to the National May 12, 2016. four units are licensed as power reactors Science Foundation and to provide ADDRESSES: Please refer to Docket ID under part 50, ‘‘Domestic Licensing of advice and recommendations NRC–2015–0169 when contacting the Production and Utilization Facilities,’’

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of title 10 of the Code of Federal VNC site. The licensee is declaring the thus, no longer under NRC jurisdiction.2 Regulations (10 CFR part 50). These two parcel as a ‘‘non-impacted area,’’ which Under the applicable NRC regulation, 10 units are the Vallecitos Boiling Water is defined in 10 CFR 50.2 to mean an CFR 50.83(b), a licensee may submit a Reactor (VBWR), NRC License DPR–1, area ‘‘with no reasonable potential for written request for the release of non- Docket 50–18, and the Empire State residual radioactivity in excess of impacted land if a license amendment is Atomic Development Agency Vallecitos natural background or fallout levels.’’ If not otherwise required. Pursuant to 10 Experimental Superheat Reactor approved, the 247-hectare (610-acre) CFR 50.83(c), the NRC can approve such (EVESR), NRC License DR–10, Docket parcel will no longer be considered part a partial release of non-impacted land 50–183. In accordance with 10 CFR of the licensed site and thus, no longer for unrestricted use in writing. 50.4(b)(8)–(9), the licensee has certified, under NRC jurisdiction. Once released, Need for the Proposed Action pursuant to 10 CFR 50.82(a)(1), that the 247-hectare (610-acre) parcel will be both units have permanently ceased available for unrestricted use. In this The licensee has requested the release operation and that all nuclear fuel has regard, GEH has indicated that it of the 247-hectare (610-acre), non- been removed from the respective intends to sell the 247-hectare (610-acre) impacted parcel as the licensee has no reactor vessels of both units. These units parcel to a non-GEH controlled entity. current or projected operational need for are presently in ‘‘SAFSTOR’’ 1 status The NRC is considering approval of this parcel at the licensed site. In fact, awaiting the termination of the power the requested partial site release for the the licensee has never used the 247- reactor licenses. VBWR and EVESR licenses at the VNC hectare (610-acre) parcel for licensed The third reactor unit is a shutdown site. Therefore, in compliance with the operations. The licensee intends to sell testing facility (also called a test National Environmental Policy Act, as the parcel to a non-GEH controlled reactor), the General Electric Test amended, 42 U.S.C. 4321 et seq. entity. Once the NRC has approved the Reactor (GETR), NRC License TR–1, (NEPA), and its NEPA implementing release, the 247-hectare (610-acre) Docket 50–70. The GETR has also been regulations in 10 CFR part 51, the NRC parcel can be made available for another defueled and is in a SAFSTOR status. has prepared this Environmental use. The fourth reactor unit is a currently Assessment (EA). The NRC is preparing VNC Site operating research reactor, the Nuclear this EA because the site was licensed VNC is located near the center of the Test Reactor (NTR), NRC License R–33, prior to the enactment of NEPA, and as Pleasanton quadrangle of Alameda Docket 50–73. The NRC is considering such, a Final Environmental Statement County, California. The site is east of a license amendment application for the (FES) or an Environmental Impact San Francisco Bay, approximately 56 air NTR that would modify the site Statement (EIS) were never prepared by description to remove the portion of the kilometers (35 air miles) east-southeast the NRC’s predecessor agency, the of San Francisco and 32 air kilometers site requested by the licensee for release Atomic Energy Commission (AEC), (see the connected action section of this (20 air miles) north of San Jose. The when the site was first licensed. In properties surrounding the site are notice). accordance with 10 CFR 50.83(b)(5), if Research reactors and testing facilities primarily used for agriculture and cattle a FES or EIS had been previously raising, with some residences, which are are non-power reactors that are used for prepared, and if the licensee had research and development, non-power mostly to the west of the property. The demonstrated that the environmental nearest sizeable towns are Pleasanton commercial activities, medical therapy, impacts associated with the proposed education and training. Non-power located 6.6 kilometers (4.1 miles) to the partial site release were bounded by the north-northwest and Livermore located reactors differ from power reactors in a FES or EIS, then the preparation of an number of significant ways. The 10 kilometers (6.2 miles) to the EA would not be necessary. As the EA purpose of a power reactor is to generate northeast. preparation here is due simply to the steam, which can be used to generate The site is on the north side of absence of a FES or an EIS, the electricity; the purpose of a non-power Vallecitos Road (State Route 84), which preparation of this EA should not be reactor is to generate radiation for is a two and four-lane paved highway. taken as precedent-setting for future purposes of experimentation, research A Union Pacific railroad line lies about NRC approvals of 10 CFR 50.83 partial and development, commercial activities, three kilometers (two miles) west of the site releases of non-impacted land medical therapy, education, and site. There is light industrial activity where the NRC or the AEC had training. Therefore, non-power reactors within a 16-kilometer (10-mile) radius previously prepared a FES or an EIS and operate at significantly lower power of the plant. San Jose (32 kilometers (20 than power reactors and at lower the licensee has demonstrated that any miles) south), Oakland (48 kilometers temperatures and pressure. For these environmental impacts associated with (30 miles) northwest) and San Francisco reasons, non-power reactors have the partial site release are bounded by (56 kilometers (35 miles) northwest) are smaller safety and environmental that FES or EIS. Based on the results of major industrial centers. The property footprints than power reactors. the EA that follows, the NRC has boundary, which has not changed since In accordance with 10 CFR 50.83, determined not to prepare an EIS for the the original property purchase in 1956, ‘‘Release of part of a power reactor partial site release, and is issuing a is fenced and posted ‘‘No Trespassing.’’ facility or site for unrestricted use,’’ the finding of no significant impact. A security gate at the entrance provides licensee requested release from the NRC II. Environmental Assessment access control to the active area of the licenses, for unrestricted use, an approximately 247-hectare (610-acre) Description of the Proposed Action 2 The NRC’s organic statutory authority is the parcel in the northern section of the The proposed action would approve Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq. (AEA). Under the AEA, the NRC’s approximately 647-hectare (1,600 acre) the release of a 247-hectare (610-acre), jurisdiction is limited to matters of radiological non-impacted parcel, located in the health and safety, for both members of the public 1 SAFSTOR is the decommissioning method in northern section of the approximately and occupational workers, and of physical security which a nuclear facility is placed and maintained 647-hectare (1,600) acre VNC site, for for NRC licensed facilities and radioactive materials in a condition that allows the safe storage of possessed by NRC licensees. The NRC holds no radioactive components of the nuclear plant and unrestricted use. Once released, the 247- property interest in licensee owned or controlled subsequent decontamination to levels that permit hectare (610-acre) parcel would no lands nor does the NRC have any land or natural license termination. longer be part of the licensed site and resources management authority.

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site. The GEH evaluation report remain bounded by the environmental determined that the proposed release of provides additional information about impacts evaluated in the previously the 247-hectare (610-acre) parcel will the site (ADAMS Accession No. issued ‘‘Final Generic Environmental have no effect on listed species or ML15114A438). Impact Statement on Decommissioning critical habitat. In addition the proposed of Nuclear Facilities,’’ NUREG–0586, release of the 247-hectare (610-acre) Safety Evaluation of the Proposed Supplement 1, Volume 1 (http:// parcel will not result in any change to Action www.nrc.gov/reading-rm/doc- non-radiological plant effluents and The NRC staff evaluated the safety collections/nuregs/staff/sr0586/s1/v1/ thus, will have no impact on either air impacts of the proposed action and index.html). NUREG–0586 evaluated the or water quality. Therefore, there are no concludes that the requirements of 10 environmental impacts of the significant non-radiological CFR 50.83, 10 CFR 50.59, and other decommissioning of entire power environmental impacts associated with applicable NRC regulations have been reactor sites and facilities that have been the proposed release of the 247-hectare met (see ADAMS Accession No. impacted by operations. The release of (610-acre) parcel. ML16007A348). a part of a power reactor site that has Accordingly, the NRC staff concludes Environmental Impacts of the Proposed been demonstrated to not have been that there are no significant Action impacted by operations is within the environmental impacts associated with scope of the evaluation performed in the proposed action. The NRC staff evaluated the NUREG–0586. The NRC staff concludes Connected Action environmental impacts of the proposed that the proposed release of the 247- action and concludes that the release of hectare (610-acre) parcel is bounded by In accordance with 10 CFR 50.90, the 247-hectare (610-acre) parcel will NUREG–0586. GEH has also requested the amendment not have any adverse environmental The NRC has determined that the of its operating research reactor license impacts. The 247-hectare (610-acre) proposed release of the 247-hectare for the NTR, NRC License R–33, Docket parcel is located in the northern portion (610-acre) parcel is wholly procedural 50–73 to reflect the release of the 247- of the site. The parcel consists of and administrative in nature, that the hectare (610-acre) parcel. Specifically, undeveloped land and is currently used parcel is radiologically non-impacted, GEH has requested an amendment to the for cattle grazing. The land has not been and that the licensee has no safety, license’s site description section. GEH used for the processing or storage of physical security, or emergency submitted that license amendment radioactive material. The properties preparedness need to retain the parcel. request on February 16, 2015 (ADAMS surrounding the site are primarily used The environmental impacts associated Accession No. ML15048A008; for agriculture and cattle raising, with with the shutdown power reactors will attachments to the February 16, 2015 some scattered residences mostly to the not change as a result of the proposed request are at ADAMS Accession Nos. west of the property. The power reactors release of the 247-hectare (610-acre) ML15048A007, ML15048A009, at the site have permanently ceased parcel. The proposed release will not ML15048A010, ML15048A011). The operations and are being maintained in result in public or environmental NRC approval or disapproval of the a possession-only SAFSTOR status. The exposure to radioactive contamination. proposed NTR license amendment release of the 247-hectare (610-acre) There are no known records of any request will be handled administratively parcel will not impact the shutdown spills, leaks, or uncontrolled release of as a separate licensing matter. However, reactors. The licensee notes that the radioactive material on the 247-hectare the NRC considers that this EA 247-hectare (610-acre) parcel has never (610-acre parcel). The 247-hectare (610- encompasses and otherwise bounds the been used for licensed activity. The 247- acre) parcel was not used for any environmental impacts of the proposed hectare (610-acre) parcel is activities that could have contaminated NTR license amendment request. As topographically uphill from the the property. Therefore, there are no discussed in Section I, ‘‘Introduction,’’ shutdown reactors so any surface or significant radiological environmental of this notice, a non-power reactor has subsurface transport of liquid effluents impacts associated with the proposed a much smaller safety and from the active area of the site could not action. environmental footprint than a power have impacted the parcel. With regard to potential non- reactor. In this regard, the NTR operates There is no evidence of any radiological impacts, the proposed at a power level of 100 kilowatts- radiological impact on the 247-hectare release of the 247-hectare (610-acre) thermal. In contrast, the VBWR, the (610-acre) parcel. Samples taken in the parcel from NRC jurisdiction does not largest of the decommissioned power area do not indicate impact from involve or authorize any construction reactors at the site, operated at a much licensed activities. The licensee activities, renovation of buildings or higher power level, 50 megawatts- measured direct dose in and around the structures, ground disturbing activities thermal. As a further, comparison, a 247-hectare (610-acre) parcel and found or other alteration to land. The proposed typical commercial nuclear power that all measurements were consistent release of the 247-hectare (610-acre) reactor is rated at 3000 megawatts- with a background direct dose parcel will not result in any change to thermal, and provides enough electricity measurement of approximately 0.7 current licensed activities on that to power 200,000 households in the mSieverts/yr (70 mRem/yr) (GEH portion of the site that will remain peak summer months. Because of this Annual Report for 2014, ADAMS under NRC jurisdiction and therefore, large difference in thermal power Accession No. ML15069A472). The NRC will not result in any changes to the generated, the consequence of an verified that the area to be released was workforce or vehicular traffic. accident at a non-power reactor is much not radiologically impacted by licensed Furthermore, as the NRC has lower when compared to a commercial site activities, as described in NRC determined that the proposed release of power reactor. For this reason, the NTR inspection report 050–00018/15–001 the 247-hectare (610-acre) parcel is an research reactors’ emergency planning (ADAMS Accession No. ML15303A361) administrative action, it is not a type of zones (EPZ) to protect the public from dated October 30, 2015. activity that has the potential to cause potential radiological accidents is well The NRC staff reviewed the request effects on historic properties or cultural within the owner-controlled areas—and and concluded that the environmental resources, including traditional cultural is the boundary of the room in which impacts associated with this request properties. Similarly, the NRC staff has the reactor is housed. In accordance

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with the guidance of ANSI/ANS 15.16– announced on the NRC public meeting ‘‘Act’’),1 and Rule 19b–4 thereunder,2 1982, ‘‘Emergency Planning for Web site on July 7, 2015 (ADAMS notice is hereby given that on April 29, Research Reactors’’, the operations Accession No. ML15188A344). A notice 2016, BOX Options Exchange LLC (the boundary is defined as the EPZ of GEH’s request to release the 247- ‘‘Exchange’’) filed with the Securities boundary for each reactor facility. For hectare (610-acre) parcel and the public and Exchange Commission the NTR, the operations boundary is meeting, including a request for (‘‘Commission’’) the proposed rule defined by the portions of Building 105 comment, was also published in the Tri- change as described in Items I, II, and occupied by NTR facilities. The NRC Valley Herald, Livermore, CA on July III below, which Items have been staff has concluded that the 15, 2015 (ADAMS Accession No. prepared by the Exchange. The environmental impacts of reducing the ML15292A519). The NRC staff Exchange filed the proposed rule change licensed site would be similarly published a notice of the receipt of pursuant to Section 19(b)(3)(A)(ii) of the bounded and that there would be no GEH’s request, including a request for Act,3 and Rule 19b–4(f)(2) thereunder,4 environmental impact associated with comment, in the Federal Register on which renders the proposal effective the continued operation of the NTR in July 20, 2015 (80 FR 42846). The NRC upon filing with the Commission. The relation to the proposed release of the staff conducted the public meeting in Commission is publishing this notice to 247-hectare (610-acre) parcel. Pleasanton, CA on July 22, 2015. A solicit comments on the proposed rule The shutdown, defueled testing summary of the public meeting, which change from interested persons. facility, the GETR, NRC License TR–1, includes copies of the presentations Docket 50–70 is not the subject of any made and a copy of the transcript of the I. Self-Regulatory Organization’s license amendment request. The GETR meeting, is available in ADAMS at Statement of the Terms of the Substance is in SAFSTOR status. The GETR Accession No. ML15260A199. No of the Proposed Rule Change license does not contain a site comments were made on the Federal description and as such, there is no Rulemaking Web site, or were received The Exchange is filing with the need to amend the GETR license to by mail or email, and all questions Securities and Exchange Commission reflect the release of the 247-hectare asked at the meeting were answered in (‘‘Commission’’) a proposed rule change (610-acre) parcel. In any event, the NRC the meeting. to amend the Fee Schedule on the BOX staff considers this EA to encompass Market LLC (‘‘BOX’’) options facility. and bound any environmental impacts III. Finding of No Significant Impact While changes to the fee schedule resulting from the proposed release of The NRC staff has prepared this EA as pursuant to this proposal will be the 247-hectare (610-acre) parcel in part of its review of the proposed action. effective upon filing, the changes will relation to the ongoing shutdown, On the basis of this EA, the NRC finds become operative on May 2, 2016. The SAFSTOR status of the GETR. that there are no significant text of the proposed rule change is environmental impacts from the available from the principal office of the Environmental Impacts of the proposed action, and that preparation of Exchange, at the Commission’s Public Alternatives to the Proposed Action an environmental impact statement is Reference Room and also on the As an alternative to the proposed not warranted. Accordingly, the NRC Exchange’s Internet Web site at http:// action, the NRC staff considered denial has determined that a finding of no boxexchange.com. of the proposed release of the 247- significant impact (FONSI) is hectare (610-acre) parcel (i.e., the ‘‘no- appropriate. In accordance with 10 CFR II. Self-Regulatory Organization’s action’’ alternative). Denial of the 51.32(a)(4), this FONSI incorporates the Statement of the Purpose of, and request would result in the 247-hectare EA set forth in this notice by reference. Statutory Basis for, the Proposed Rule (610-acre) parcel remaining part of the Change Dated at Rockville, Maryland, this 4th day licensed site and subject to NRC of May 2016. jurisdiction. As the licensee has no need In its filing with the Commission, the For the Nuclear Regulatory Commission. for the parcel, its current use as a site Exchange included statements for cattle grazing would most likely John R. Tappert, concerning the purpose of and basis for continue. As there is no policy or Director, Division of Decommissioning, the proposed rule change and discussed regulatory reason for the NRC to require Uranium Recovery, and Waste Programs, any comments it received on the Office of Nuclear Material Safety and proposed rule change. The text of these a licensee to retain land that is not Safeguards. radiologically impacted and for which statements may be examined at the the licensee has no further operational [FR Doc. 2016–11206 Filed 5–11–16; 8:45 am] places specified in Item IV below. The need, the no-action alternative is not BILLING CODE 7590–01–P Exchange has prepared summaries, set further considered. forth in Sections A, B, and C below, of the most significant aspects of such Conclusion SECURITIES AND EXCHANGE statements. The NRC staff has concluded that the COMMISSION proposed action will not significantly A. Self-Regulatory Organization’s [Release No. 34–77778; File No. SR–BOX– Statement of the Purpose of, and impact the quality of the human 2016–21] environment, and that the proposed Statutory Basis for, the Proposed Rule action is the preferred alternative. Self-Regulatory Organizations; BOX Change Options Exchange LLC; Notice of Agencies and Persons Consulted 1. Purpose Filing and Immediate Effectiveness of The NRC contacted the California a Proposed Rule Change To Amend The Exchange proposes to amend the Department of Public Health concerning the Fee Schedule on the BOX Market Fee Schedule for trading on BOX. this request. There were no comments, LLC (‘‘BOX’’) Options Facility concerns or objections from the State 1 15 U.S.C. 78s(b)(1). official. May 6, 2016. 2 17 CFR 240.19b–4. A public meeting to obtain comments Pursuant to Section 19(b)(1) of the 3 15 U.S.C. 78s(b)(3)(A)(ii). on the release approval request was Securities Exchange Act of 1934 (the 4 17 CFR 240.19b–4(f)(2).

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PIP and COPIP Transactions of the BOX Fee Schedule. Specifically, Order Fees for Market Makers from The Exchange first proposes to amend the Exchange proposes to reduce the PIP $0.20 to $0.15. certain PIP and COPIP Transaction fees and COPIP Order fees for Professional The revised pricing structure for PIP for Professional Customers, Broker Customers and Broker Dealers from and COPIP Transactions will be as Dealer and Market Makers in Section I.B $0.37 to $0.15 and the PIP and COPIP follows:

Account type Public Professional Broker Market customer customer dealer maker

PIP Order or COPIP Order $0.00 ...... $0.15 ...... $0.15 ...... $0.15. Improvement Order in PIP 0.15 ...... 0.37 ...... 0.37 ...... 0.30. or COPIP. Primary Improvement See Section I. B.1 ...... See Section I. B.1 ...... See Section I. B.1 ...... See Section I. B.1. Order.

The Exchange also proposes to make BVR above. Participants whose PIP and a clerical correction to Section I.B. of COPIP volume submitted to BOX, the BOX Fee Schedule. Specifically, the Under the BVR, the Exchange offers a relative to the total national Customer Primary Improvement Order row tiered per contract rebate for all PIP volume in multiply-listed options Orders and COPIP orders of 100 references ADV (Average Daily classes, is 1.250% or above will receive contracts and under that do not trade Volume). The Exchange no longer uses a per contract rebate of $0.18 in PIP a Participant’s ADV to determine solely with their contra order. Percentage thresholds are calculated on transactions and $0.06 in COPIP volume based tiers for rebates and fees. transactions. With this, the Exchange Instead, the qualification thresholds are a monthly basis by totaling the Participant’s PIP and COPIP volume also proposes to adjust the threshold in based on a percentage of the Tier 4 to end at 1.249%. Participant’s volume relative to the submitted to BOX, relative to the total account type’s overall total industry national Customer volume in multiply- The new BVR set forth in Section equity and ETF option volume. listed options classes. I.B.2 of the BOX Fee Schedule will be Therefore, the Exchange proposes to The Exchange proposes to establish as follows: remove the reference ADV and only an additional tier within the BVR for refer to Section I.B.1. percentage thresholds of 1.250% and

Percentage Per contract rebate thresholds of national customer (all account types) Tier volume in multiply-listed options classes (monthly) PIP COPIP

1 ...... 0.000% to 0.159% ...... ($0.00) ($0.00) 2 ...... 0.160% to 0.339% ...... (0.04) (0.02) 3 ...... 0.340% to 0.999% ...... (0.11) (0.04) 4 ...... 1.000% to 1.249% ...... (0.14) (0.06) 5 ...... 1.250% and Above ...... (0.18) (0.06)

Complex Orders The Exchange now proposes to adjust For Complex Orders in Non-Penny The Exchange then proposes to adjust certain fees and rebates within the new Pilot Classes, the Exchange proposes to certain fees within the Complex Order pricing structure. Specifically, the replace the $0.10 credit applied to Pricing Structure in Section III.A. of the Exchange proposes to replace the $0.10 Market Makers, Professional Customer BOX Fee Schedule (All Complex credit applied to Market Makers, and Broker Dealers making liquidity Orders). The Exchange recently Professional Customer and Broker against a Public Customer. The introduced a pricing structure where Dealers making liquidity against a Exchange proposes to instead assess Complex Orders are assessed Public Customer in Penny Pilot Classes. Professional Customers and Broker transaction fees and credits dependent The Exchange proposes to instead assess Dealers $0.80 and Market Makers $0.75 upon three factors: (i) The account type Professional Customers or Broker when their Non-Penny Pilot Complex of the Participant submitting the order; Dealers $0.45 and Market Makers $0.40 Order makes liquidity against a Public (ii) whether the Participant is a liquidity when their Penny Pilot Complex Order Customer Complex Order. provider or liquidity taker; and (iii) the makes liquidity against a Public The revised Complex Order Pricing account type of the contra party.5 Customer Complex Order. Structure will be as follows:

5 See Securities Exchange Act Release No. 77568 (April 8, 2016), 81 FR 22151 (April 14, 2016) (SR– BOX–2016–15).

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Penny pilot classes Non-penny pilot classes Account type Contra party Maker fee/ Taker fee/ Maker fee/ Taker fee/ credit credit credit credit

Public Customer .. Public Customer ...... $0.00 $0.00 $0.00 $0.00 Professional Customer/Broker Dealer ...... (0.35) (0.35) (0.70) (0.70) Market Maker...... (0.35) (0.35) (0.70) (0.70) Professional Cus- Public Customer ...... 0.45 0.45 0.80 0.80 tomer or Broker Dealer. Professional Customer/Broker Dealer ...... (0.10) 0.30 (0.10) 0.45 Market Maker ...... (0.10) 0.30 (0.10) 0.45 Market Maker ...... Public Customer ...... 0.40 0.40 0.75 0.75 Professional Customer/Broker Dealer ...... (0.10) 0.30 (0.10) 0.45 Market Maker ...... (0.10) 0.30 (0.10) 0.45

For example, if a Market Maker’s submit their PIP and COPIP Orders to The Exchange believes that the Complex Order in a Penny Pilot Class the Exchange and the Exchange believes proposed fees for Professional interacted with a Public Customer’s it is appropriate to now amend the BVR. Customers, Broker Dealers and Market Complex Order, regardless of whether The Exchange believes it is equitable Makers interacting with Public the Complex Order was making or and not unfairly discriminatory to Customer Complex Orders are taking liquidity, the Market Maker establish an additional tier within the reasonable. A Professional Customer or would now be charged $0.40 and the BVR, as all Participants have the ability Broker Dealer interacting against a Public Customer would be credited to qualify for a rebate, and rebates are Public Customer will now be charged $0.35. provided equally to qualifying $0.45 in Penny Pilot Classes and $0.80 Participants. Finally, the Exchange Non-Penny Pilot Classes, regardless if it 2. Statutory Basis believes it is reasonable and appropriate is making or taking liquidity. A Market The Exchange believes that the to continue to provide incentives for Maker interacting against a Public proposal is consistent with the Public Customers, which will result in Customer will now be charged $0.40 in requirements of Section 6(b) of the Act, greater liquidity and ultimately benefit Penny Pilot Classes and $0.75 Non- in general, and Section 6(b)(4) and all Participants trading on the Exchange. Penny Pilot Classes, regardless of 6(b)(5)of the Act,6 in particular, in that BOX believes it is reasonable, whether it is making or taking liquidity. it provides for the equitable allocation equitable and not unfairly The Exchange believes these proposed of reasonable dues, fees, and other discriminatory to adjust the monthly Complex Order fees remain competitive charges among BOX Participants and Percentage Thresholds of National when compared to the Complex Order other persons using its facilities and Customer Volume in Multiply-Listed fees on another exchange.8 does not unfairly discriminate between Options Classes. The volume thresholds The Exchange believes that charging customers, issuers, brokers or dealers. and applicable rebates are meant to Professional Customers and Broker The Exchange believes that reducing incentivize Participants to direct order Dealers higher fees than Public the PIP and COPIP Order Fees to $0.15 flow to the Exchange to obtain the Customers for Complex Orders is for Market Makers, Professional benefit of the rebate, which will in turn equitable and not unfairly Customers and Broker Dealers is benefit all market participants by discriminatory. Professional Customers, reasonable. Reducing these fees is meant increasing liquidity on the Exchange. while Public Customers by virtue of not to encourage auction order flow to the Other exchanges employ similar being Broker Dealers, generally engage Exchange, which will benefit all market incentive programs,7 and the Exchange in trading activity more similar to participants on the Exchange. BOX believes that the proposed changes to Broker Dealer proprietary trading believes the $0.15 fee is equitable and the volume thresholds and rebates are accounts (submitting more than 390 not unfairly discriminatory, as it applies reasonable and competitive when standard orders per day on average). to all Market Marker, Professional compared to incentive structures at The Exchange believes that the higher Customers and Broker Dealers other exchanges. level of trading activity from these submitting PIP and COPIP Orders to The Exchange believes amending the Participants will draw a greater amount these auction mechanisms. Further, the Complex Order pricing structure is of BOX system resources than that of Exchange believes it is equitable and not reasonable, equitable and not unfairly non-professional, Public Customers. unfairly discriminatory to charge Public discriminatory. The fee structure for Because this higher level of trading Customers less than Non-Public Complex Orders was recently adopted activity will result in greater ongoing Customers for their PIP and COPIP and the Exchange believes it is now operational costs, the Exchange aims to Orders. The practice of incentivizing appropriate to adjust certain fees and recover its costs by assessing increased Public Customer order flow is credits. The Complex Order fee Professional Customers and Broker common in the options markets. structure is generally intended to attract Dealers higher fees for transactions. The Exchange believes the proposed order flow to the Exchange by offering The Exchange also believes it is amendments to the BVR in Section I.B.2 all market participants incentives to equitable and not unfairly of the BOX Fee Schedule are reasonable, submit their Complex Orders to the discriminatory for BOX Market Makers equitable and non-discriminatory. The Exchange. to be assessed lower fees than BVR was adopted to attract Public Customer order flow to the Exchange by 7 See Section B of the PHLX Pricing Schedule 8 Comparative Complex Order fees at another entitled ‘‘Customer Rebate Program;’’ ISE Gemini’s exchanges [sic] range from $0.30 [sic] to $0.88. See offering these Participants incentives to Qualifying Tier Thresholds (page 6 of the ISE Section II of the International Securities Exchange Gemini Fee Schedule); and CBOE’s Volume (‘‘ISE’’) Schedule of Fees entitled ‘‘Complex Order 6 15 U.S.C. 78f(b)(4) and (5). Incentive Program (VIP). Fees and Rebates.’’

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Professional Customers and Broker Exchange is simply proposing to reduce Comments may be submitted by any of Dealers for certain Complex Order PIP and COPIP Order fees and establish the following methods: executions because of the significant a new qualification tier in the BVR. The contributions to overall market quality Exchange believes doing so will Electronic Comments that Market Makers provide. increase intermarket and intramarket • Use the Commission’s Internet Specifically, Market Makers can provide competition by incenting Participants to comment form (http://www.sec.gov/ higher volumes of liquidity and direct their order flow to the exchange, rules/sro.shtml); or lowering their fees will help attract a which benefits all participants by • higher level of Market Maker order flow providing more trading opportunities Send an email to rule-comments@ to the BOX Book and create liquidity, and improves competition on the sec.gov. Please include File Number SR– which the Exchange believes will Exchange. The Exchange also believes BOX–2016–21 on the subject line. ultimately benefit all Participants amending certain Complex Order fees Paper Comments trading on BOX. As such, the Exchange and credits will enhance competition believes it is appropriate that Market between exchanges because it is • Send paper comments in triplicate Makers be charged lower transaction designed to allow the Exchange to better to Secretary, Securities and Exchange fees than Professional Customers and compete with other exchanges for Commission, 100 F Street NE., Broker Dealers for certain Complex Complex Order flow. Washington, DC 20549–1090. Order executions. Finally, the Exchange notes that it The Exchange also believes it is operates in a highly competitive market All submissions should refer to File reasonable, equitable and not unfairly in which market participants can Number SR–BOX–2016–21. This file discriminatory to charge Non-Public readily favor competing exchanges. In number should be included on the Customers a higher fee when their such an environment, the Exchange subject line if email is used. To help the Complex Order interacts with a Public must continually review, and consider Commission process and review your Customer’s Complex Order, when adjusting, its fees and credits to remain comments more efficiently, please use compared to the fee assessed when their competitive with other exchanges. For only one method. The Commission will Complex Order interacts with a Non- the reasons described above, the post all comments on the Commission’s Public Customer’s Complex Order. To Exchange believes that the proposed Internet Web site (http://www.sec.gov/ attract Public Customer order flow, rule change reflects this competitive rules/sro.shtml). Copies of the Public Customers are given credit when environment. submission, all subsequent their Complex Order executes against a non-Public Customer. The securities C. Self-Regulatory Organization’s amendments, all written statements markets generally, and BOX in Statement on Comments on the with respect to the proposed rule particular, have historically aimed to Proposed Rule Change Received From change that are filed with the improve markets for investors and Members, Participants, or Others Commission, and all written develop various features within the communications relating to the No written comments were either market structure for Public Customer proposed rule change between the solicited or received. benefit. Similar to payment for order Commission and any person, other than flow and other pricing models that have III. Date of Effectiveness of the those that may be withheld from the been adopted by the Exchange and other Proposed Rule Change and Timing for public in accordance with the exchanges to attract Public Customer Commission Action provisions of 5 U.S.C. 552, will be order flow, the Exchange increases fees available for Web site viewing and to non-Public Customers to provide The foregoing rule change has become effective pursuant to Section printing in the Commission’s Public incentives for Public Customers. The 9 Reference Room, 100 F Street NE., Exchange believes that providing 19(b)(3)(A)(ii) of the Exchange Act and Rule 19b–4(f)(2) thereunder,10 because Washington, DC 20549 on official incentives for Complex Orders by Public business days between the hours of Customers is reasonable and, ultimately, it establishes or changes a due, or fee. At any time within 60 days of the 10:00 a.m. and 3:00 p.m. Copies of such will benefit all Participants trading on filing also will be available for the Exchange by attracting Public filing of the proposed rule change, the Commission summarily may inspection and copying at the principal Customer order flow. office of the Exchange. All comments Finally, the Exchange also believes it temporarily suspend the rule change if received will be posted without change; is reasonable to charge Professional it appears to the Commission that the the Commission does not edit personal Customers, Broker Dealers, and Market action is necessary or appropriate in the identifying information from Makers less for certain executions in public interest, for the protection of Penny Pilot issues compared to Non- investors, or would otherwise further submissions. You should submit only Penny Pilot issues because these classes the purposes of the Act. If the information that you wish to make are typically more actively traded; Commission takes such action, the available publicly. All submissions assessing lower fees will further Commission shall institute proceedings should refer to File Number SR–BOX– incentivize order flow in Penny Pilot to determine whether the proposed rule 2016–21, and should be submitted on or issues on the Exchange, ultimately should be approved or disapproved. before June 2, 2016. benefiting all Participants trading on IV. Solicitation of Comments For the Commission, by the Division of BOX. Trading and Markets, pursuant to delegated Interested persons are invited to authority.11 B. Self-Regulatory Organization’s submit written data, views, and Robert W. Errett, Statement on Burden on Competition arguments concerning the foregoing, The Exchange does not believe that including whether the proposed rule Deputy Secretary. the proposed rule change will impose change is consistent with the Act. [FR Doc. 2016–11153 Filed 5–11–16; 8:45 am] any burden on competition not BILLING CODE 8011–01–P necessary or appropriate in furtherance 9 15 U.S.C. 78s(b)(3)(A)(ii). of the purposes of the Act. The 10 17 CFR 240.19b–4(f)(2). 11 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE sectors of the investment grade fixed (‘‘NAV’’), and the secondary market COMMISSION income market (and, in the case of the price of the Shares should not vary IQ Enhanced Core Plus Bond U.S. substantially from the NAV of such [Release No. 34–77779; File No. TP 16–06] Index, the high yield fixed income Shares; securities market) based on each index’s • Shares of each Fund will be listed Order Granting Limited Exemptions overall level of risk as measured by and traded on the NYSE Arca (the From Exchange Act Rule 10b–17 and volatility and the total return ‘‘Exchange’’) or other exchange in Rules 101 and 102 of Regulation M to momentum of each fixed income sector, accordance with exchange listing IndexIQ ETF Trust, IQ Enhanced Core so that each index will overweight fixed standards that are, or will become, Bond U.S. ETF, IQ Enhanced Core Plus income sectors with high momentum effective pursuant to Section 19(b) of the Bond U.S. ETF, IQ Leaders Bond and underweight fixed income sectors Exchange Act; Allocation Tracker ETF, and IQ Leaders with low momentum, with constraints • Each ETP in which each Fund is GTAA Tracker ETF, Pursuant to to maintain sector diversification. invested will meet all conditions set Exchange Act Rule 10b–17(b)(2) and The IQ Leaders Bond Allocation forth in a relevant class relief letter,2 or Rules 101(d) and 102(e) of Regulation Tracker ETF and the IQ Leaders GTAA will have received individual relief from M Tracker ETF seek investment results the Commission; • All of the components of each May 6, 2016. that correspond (before fees and Fund’s underlying index will have By letter dated May 6, 2016 (the expenses) generally to the price and yield performance of their indices, the publicly available last sale trade ‘‘Letter’’), as supplemented by IQ Leaders Bond Allocation Index and information; conversations with the staff of the IQ Leaders GTAA Index, respectively. • The intra-day proxy value of each Division of Trading and Markets, The IQ Leaders Bond Allocation Index Fund per share and the value of each counsel for IndexIQ ETF Trust (the seeks to track the ‘‘beta’’ portion of the Index will be publicly disseminated by ‘‘Trust’’), on behalf of the Trust, the IQ returns of the ten leading bond mutual a major market data vendor throughout Enhanced Core Bond U.S. ETF, IQ funds pursuing a global bond strategy the trading day; Enhanced Core Plus Bond U.S. ETF, IQ • and the IQ Leaders GTAA Index seeks On each business day before the Leaders Bond Allocation Tracker ETF, to track the beta portion of the returns opening of business on the Exchange, and IQ Leaders GTAA Tracker ETF of the ten leading global allocation each Fund’s custodian, through the (each, a ‘‘Fund’’ and collectively the mutual funds based on fund National Securities Clearing ‘‘Funds’’), NYSE Arca or any national performance and fund asset size.1 Corporation, will make available the list securities exchange on or through which At least 80% of each Fund’s portfolio of the names and the numbers of shares issued by the Funds (‘‘Shares’’) holdings are, and will be, shares of some securities and other assets of the Fund’s may subsequently trade, ALPS or all of the exchange-traded products portfolio that will be applicable that day Distributors, Inc. (the ‘‘Distributor’’), (‘‘ETPs’’) that are the index constituents to creation and redemption requests; • and persons or entities engaging in of its stated index. Some or all of the The Exchange or other market transactions in Shares (collectively, the remaining 20% may be invested in information provider will disseminate ‘‘Requestors’’), requested exemptions, or securities that are not index constituents every 15 seconds throughout the trading interpretive or no-action relief, from which the advisor believes will help the day through the facilities of the Rule 10b–17 of the Securities Exchange Fund track its index, as well as cash, Consolidated Tape Association an Act of 1934, as amended (‘‘Exchange cash equivalents and various types of amount representing the current value Act’’), and Rules 101 and 102 of financial instruments including, but not of the cash and securities held in the Regulation M, in connection with limited to, futures contracts, swap portfolio of a Fund but does not reflect secondary market transactions in Shares agreements, forward contracts, reverse corporate actions, expenses, and other and the creation or redemption of repurchase agreements, and options on adjustments made to such portfolio aggregations of Shares of at least 50,000 securities, indices, and futures throughout the day (‘‘Estimated NAV’’); • shares (‘‘Creation Units’’). contracts. In no case will a Fund hold At least 80% of each Fund’s The Trust is registered with the any non-ETP equity security issued by portfolio holdings are, and will be, Securities and Exchange Commission a single issuer in excess of 20% of such shares of some or all of the ETPs that are (‘‘Commission’’) under the Investment Fund’s portfolio holdings. the index constituents of its stated Company Act of 1940, as amended Accordingly, each Fund intends to index; • (‘‘1940 Act’’), as an open-end operate primarily as an ‘‘ETF of ETFs.’’ Each Fund will invest in securities management investment company. Each Except for the fact that each Fund that will facilitate an effective and Fund is an index fund that seeks to intends to operate primarily as an ETF track, as closely as possible, before fees of ETFs, each Fund will operate in a 2 Letter from Catherine McGuire, Esq., Chief Counsel, Division of Market Regulation, to the and expenses, the performance of its manner very similar to that of the ETPs Securities Industry Association Derivative Products stated index by holding a portfolio of held in its portfolio. Committee (Nov. 21, 2005); Letter from Racquel L. investments selected to correspond The Requestors represent, among Russell, Branch Chief, Division of Market generally to the price and yield other things, the following: Regulation, to George T. Simon, Esq., Foley & • Shares of each Fund will be issued Lardner LLP (June 21, 2006); Letter from James A. performance of such index. Brigagliano, Acting Associate Director, Division of The IQ Enhanced Core Bond U.S. ETF by the Trust, an open-end management Market Regulation, to Stuart M. Strauss, Esq., and the IQ Enhanced Core Plus Bond investment company that is registered Clifford Chance US LLP (Oct. 24, 2006); Letter from U.S. ETF seek investment results that with the Commission; James A. Brigagliano, Associate Director, Division • The Trust will continuously redeem of Market Regulation, to Benjamin Haskin, Esq., correspond (before fees and expenses) Willkie. Farr & Gallagher LLP (Apr. 9, 2007); or generally to the price and yield Creation Units at net asset value Letter from Josephine Tao, Assistant Director, performance of their indices, the IQ Division of Trading and Markets, to Domenick Enhanced Core Bond U.S. Index and IQ 1 The global allocation mutual funds invest in a Pugliese, Esq., Paul, Hastings, Janofsky and Walker combination of equity, fixed-income, and money LLP (June 27, 2007). See also Staff Legal Bulletin Enhanced Core Plus Bond U.S. Index, market securities of U.S. and foreign issuers, and No. 9, ‘‘Frequently Asked Questions About respectively. These indices were may also invest in other asset classes such as Regulation M’’ (Apr. 12, 2002) (regarding actively- designed to weight each of the various commodities. managed ETFs).

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efficient arbitrage mechanism and the induce others to bid for or purchase, representations and facts in the Letter, ability to create workable hedges; extends indefinitely. and subject to the conditions below, we • The Requestors believe that Based on the representations and facts find that it is appropriate in the public arbitrageurs can be expected to take presented in the Letter, particularly that interest, and consistent with the advantage of price variations between the Trust is a registered open-end protection of investors, to grant the each Fund’s market price and its NAV; management investment company that Trust a conditional exemption from • The arbitrage mechanism will be will continuously redeem at the NAV Rule 10b–17 because market facilitated by the transparency of each Creation Unit size aggregations of the participants will receive timely Fund’s portfolio and the availability of Shares of each Fund and that a close notification of the existence and timing the Estimated NAV, the liquidity of alignment between the market price of of a pending distribution, and thus the securities and other assets held by each Shares and each Fund’s NAV is concerns that the Commission raised in Fund, and the ability to acquire such expected, the Commission finds that it adopting Rule 10b–17 will not be securities, as well as arbitrageurs’ ability is appropriate in the public interest, and implicated.5 consistent with the protection of to create workable hedges; and Conclusion • A close alignment between the investors, to grant the Trust an market price of Shares and each Fund’s exemption under paragraph (d) of Rule It is hereby ordered, pursuant to Rule NAV is expected. 101 of Regulation M with respect to 101(d) of Regulation M, that the Trust, each Fund, thus permitting persons based on the representations and the Regulation M participating in a distribution of Shares facts presented in the Letter, is exempt While redeemable securities issued by of each Fund to bid for or purchase such from the requirements of Rule 101 with an open-end management investment Shares during their participation in respect to each Fund, thus permitting company are excepted from the such distribution.4 persons who may be deemed to be participating in a distribution of Shares provisions of Rule 101 and 102 of Rule 102 of Regulation M Regulation M, the Requestors may not of each Fund to bid for or purchase such Rule 102 of Regulation M prohibits rely upon that exception for the Shares.3 Shares during their participation in issuers, selling security holders, or any However, we find that it is appropriate such distribution. affiliated purchaser of such person from in the public interest, and is consistent It is further ordered, pursuant to Rule bidding for, purchasing, or attempting to with the protection of investors, to grant 102(e) of Regulation M, that the Trust, induce any person to bid for or purchase a limited exemption from Rules 101 and based on the representations and the a covered security during the applicable 102 to persons who may be deemed to facts presented in the Letter, is exempt restricted period in connection with a be participating in a distribution of from the requirements of Rule 102 with distribution of securities effected by or Shares and the Fund as described in respect to each Fund, thus permitting on behalf of an issuer or selling security more detail below. each Fund to redeem Shares of each holder. Fund during the continuous offering of Rule 101 of Regulation M Based on the representations and facts such Shares. presented in the Letter, particularly that It is further ordered, pursuant to Rule Generally, Rule 101 of Regulation M the Trust is a registered open-end is an anti-manipulation rule that, 10b–17(b)(2), that the Trust, based on management investment company that the representations and the facts subject to certain exceptions, prohibits will redeem at the NAV Creation Units any ‘‘distribution participant’’ and its presented in the Letter, and subject to of Shares of each Fund and that a close the conditions below, is exempt from ‘‘affiliated purchasers’’ from bidding for, alignment between the market price of purchasing, or attempting to induce any the requirements of Rule 10b–17 with Shares and each Fund’s NAV is respect to transactions in the Shares of person to bid for or purchase, any expected, the Commission finds that it security which is the subject of a each Fund. is appropriate in the public interest, and This exemptive relief is subject to the distribution until after the applicable consistent with the protection of restricted period, except as specifically following conditions: investors, to grant the Trust an • The Trust will comply with Rule permitted in the rule. Rule 100 of exemption under paragraph (e) of Rule 10b–17 except for Rule 10b– Regulation M defines ‘‘distribution’’ to 102 of Regulation M with respect to the 17(b)(1)(v)(a) and (b); and mean any offering of securities that is Funds, thus permitting each Fund to • The Trust will provide the distinguished from ordinary trading redeem Shares of each Fund during the information required by Rule 10b– transactions by the magnitude of the continuous offering of such Shares. 17(b)(1)(v)(a) and (b) to the Exchange as offering and the presence of special Rule 10b–17 soon as practicable before trading begins selling efforts and selling methods. The on the ex-dividend date, but in no event provisions of Rule 101 of Regulation M Rule 10b–17, with certain exceptions, later than the time when the Exchange apply to underwriters, prospective requires an issuer of a class of publicly last accepts information relating to underwriters, brokers, dealers, or other traded securities to give notice of certain distributions on the day before the ex- persons who have agreed to participate specified actions (for example, a dividend date. or are participating in a distribution of dividend distribution) relating to such This exemptive relief is subject to securities. The Shares are in a class of securities in accordance with modification or revocation at any time continuous distribution and, as such, Rule 10b–17(b). Based on the the restricted period in which 5 We also note that timely compliance with Rule distribution participants and their 4 Additionally, we confirm the interpretation that 10b–17(b)(1)(v)(a) and (b) would be impractical affiliated purchasers are prohibited from a redemption of Creation Unit size aggregations of because it is not possible for the Funds to bidding for, purchasing, or attempting to Shares of each Fund and the receipt of securities accurately project ten days in advance what in exchange by a participant in a distribution of dividend, if any, would be paid on a particular Shares of each Fund would not constitute an record date. Further, the Commission finds, based 3 While ETFs operate under exemptions from the ‘‘attempt to induce any person to bid for or upon the representations of the Requestors in the definitions of ‘‘open-end company’’ under Section purchase, a covered security during the applicable Letter, that the provision of the notices as described 5(a)(1) of the 1940 Act and ‘‘redeemable security’’ restricted period’’ within the meaning of Rule 101 in the Letter would not constitute a manipulative under Section 2(a)(32) of the 1940 Act, each Fund of Regulation M and, therefore, would not violate or deceptive device or contrivance comprehended and its securities do not meet those definitions. that rule. within the purpose of Rule 10b–17.

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the Commission determines that such proposed rule change as described in in be an actively-managed exchange-traded action is necessary or appropriate in Items I and II below, which Items have fund (‘‘ETF’’). The Shares will be furtherance of the purposes of the been prepared by Nasdaq. The offered by the Trust, which was Exchange Act. Persons relying upon this Commission is publishing this notice to established as a Massachusetts business exemptive relief shall discontinue solicit comments on the proposed rule trust on February 22, 2016.5 The Trust transactions involving the Shares of the change from interested persons. is registered with the Commission as an Funds, pending presentation of the facts investment company and has filed a I. Self-Regulatory Organization’s for the Commission’s consideration, in registration statement on Form N–1A Statement of the Terms of Substance of the event that any material change (‘‘Registration Statement’’) with the the Proposed Rule Change occurs with respect to any of the facts Commission.6 The Fund will be a series or representations made by the Nasdaq proposes to list and trade the of the Trust. Requestors and, consistent with all shares of the First Trust Strategic First Trust Advisors L.P. will be the preceding letters, particularly with Mortgage REIT ETF (the ‘‘Fund’’) of investment adviser (‘‘Adviser’’) to the respect to the close alignment between First Trust Exchange-Traded Fund VIII Fund. First Trust Portfolios L.P. (the the market price of Shares and each (the ‘‘Trust’’) under Nasdaq Rule 5735 ‘‘Distributor’’) will be the principal Fund’s NAV. In addition, persons (‘‘Managed Fund Shares’’).3 The shares underwriter and distributor of the relying on this exemptive relief are of the Fund are collectively referred to Fund’s Shares. The Bank of New York directed to the anti-fraud and anti- herein as the ‘‘Shares.’’ Mellon Corporation (‘‘BNY’’) will act as manipulation provisions of the II. Self-Regulatory Organization’s the administrator, accounting agent, Exchange Act, particularly Sections 9(a) Statement of the Purpose of, and custodian and transfer agent to the and 10(b), and Rule 10b–5 thereunder. Statutory Basis for, the Proposed Rule Fund. Paragraph (g) of Rule 5735 provides Responsibility for compliance with Change these and any other applicable that if the investment adviser to the provisions of the federal securities laws In its filing with the Commission, investment company issuing Managed must rest with the persons relying on Nasdaq included statements concerning Fund Shares is affiliated with a broker- this exemptive relief. the purpose of and basis for the dealer, such investment adviser shall This order should not be considered proposed rule change and discussed any erect a ‘‘fire wall’’ between the a view with respect to any other comments it received on the proposed investment adviser and the broker- question that the proposed transactions rule change. The text of these statements dealer with respect to access to may raise, including, but not limited to may be examined at the places specified information concerning the composition the adequacy of the disclosure in Item IV below. Nasdaq has prepared and/or changes to such investment concerning, and the applicability of summaries, set forth in sections A, B, company portfolio.7 In addition, other federal or state laws to, the and C below, of the most significant proposed transactions. aspects of such statements. Fund Shares, listed and traded on the Exchange under Nasdaq Rule 5705, seeks to provide For the Commission, by the Division of A. Self-Regulatory Organization’s investment results that correspond generally to the Trading and Markets, pursuant to delegated Statement of the Purpose of, and the price and yield performance of a specific foreign or authority.6 Statutory Basis for, the Proposed Rule domestic stock index, fixed income securities index Robert W. Errett, Change or combination thereof. 5 Deputy Secretary. The Commission has issued an order, upon 1. Purpose which the Trust may rely, granting certain [FR Doc. 2016–11154 Filed 5–11–16; 8:45 am] exemptive relief under the 1940 Act. See BILLING CODE 8011–01–P The Exchange proposes to list and Investment Company Act Release No. 28468 trade the Shares of the Fund under (October 27, 2008) (File No. 812–13477) (the Nasdaq Rule 5735, which governs the ‘‘Exemptive Relief’’). 6 SECURITIES AND EXCHANGE listing and trading of Managed Fund See Registration Statement on Form N–1A for 4 the Trust, dated March 14, 2016 (File Nos. 333– COMMISSION Shares on the Exchange. The Fund will 210186 and 811–23147). The descriptions of the Fund and the Shares contained herein are based, in [Release No. 34–77781; File No. SR– 3 The Commission approved Nasdaq Rule 5735 in part, on information in the Registration Statement. NASDAQ–2016–064] Securities Exchange Act Release No. 57962 (June 7 An investment adviser to an open-end fund is 13, 2008), 73 FR 35175 (June 20, 2008) (SR– required to be registered under the Investment Self-Regulatory Organizations; The NASDAQ–2008–039). There are already multiple Advisers Act of 1940 (the ‘‘Advisers Act’’). As a NASDAQ Stock Market LLC; Notice of actively-managed funds listed on the Exchange; see, result, the Adviser and its related personnel are Filing of Proposed Rule Change e.g., Securities Exchange Act Release Nos. 72506 subject to the provisions of Rule 204A–1 under the (July 1, 2014), 79 FR 38631 (July 8, 2014) (SR– Advisers Act relating to codes of ethics. This Rule Relating to the Listing and Trading of NASDAQ–2014–050) (order approving listing and requires investment advisers to adopt a code of the Shares of the First Trust Strategic trading of First Trust Strategic Income ETF); 69464 ethics that reflects the fiduciary nature of the Mortgage REIT ETF of First Trust (April 26, 2013), 78 FR 25774 (May 2, 2013) (SR– relationship to clients as well as compliance with Exchange-Traded Fund VIII NASDAQ–2013–036) (order approving listing and other applicable securities laws. Accordingly, trading of First Trust Senior Loan Fund); and 66489 procedures designed to prevent the communication May 6, 2016. (February 29, 2012), 77 FR 13379 (March 6, 2012) and misuse of non-public information by an (SR–NASDAQ–2012–004) (order approving listing investment adviser must be consistent with Rule Pursuant to Section 19(b)(1) of the and trading of WisdomTree Emerging Markets 204A–1 under the Advisers Act. In addition, Rule Securities Exchange Act of 1934 Corporate Bond Fund). The Exchange believes the 206(4)–7 under the Advisers Act makes it unlawful (‘‘Act’’),1 and Rule 19b–4 thereunder,2 proposed rule change raises no significant issues for an investment adviser to provide investment notice is hereby given that on May 3, not previously addressed in those prior advice to clients unless such investment adviser has Commission orders. (i) adopted and implemented written policies and 2016, The NASDAQ Stock Market LLC 4 A Managed Fund Share is a security that procedures reasonably designed to prevent (‘‘Nasdaq’’ or the ‘‘Exchange’’) filed with represents an interest in an investment company violation, by the investment adviser and its the Securities and Exchange registered under the Investment Company Act of supervised persons, of the Advisers Act and the Commission (‘‘Commission’’) the 1940 (15 U.S.C. 80a–1) (the ‘‘1940 Act’’) organized Commission rules adopted thereunder; (ii) as an open-end investment company or similar implemented, at a minimum, an annual review entity that invests in a portfolio of securities regarding the adequacy of the policies and 6 17 CFR 200.30–3(a)(6) and (9). selected by its investment adviser consistent with procedures established pursuant to subparagraph (i) 1 15 U.S.C. 78s(b)(1). its investment objectives and policies. In contrast, above and the effectiveness of their 2 17 CFR 240.19b–4. an open-end investment company that issues Index implementation; and (iii) designated an individual

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paragraph (g) further requires that Fund will seek to achieve its investment rolls 11 (collectively, ‘‘Mortgage-Related personnel who make decisions on the objective by investing at least 80% of its Instruments’’). open-end fund’s portfolio composition net assets (including investment The Fund may invest in exchange- must be subject to procedures designed borrowings) in the exchange-traded traded and OTC options on mortgage to prevent the use and dissemination of common shares of U.S. exchange-traded REITs and Real Estate Companies; OTC material, non-public information mortgage real estate investment trusts options on mortgage TBA transactions; regarding the open-end fund’s portfolio. (‘‘mortgage REITs’’). In general terms, a exchange-traded U.S. Treasury and Rule 5735(g) is similar to Nasdaq Rule mortgage REIT makes loans to Eurodollar futures contracts; exchange- 5705(b)(5)(A)(i); however, paragraph (g) developers and owners of property and traded and OTC interest rate swap in connection with the establishment of invests primarily in mortgages and agreements; exchange-traded options on a ‘‘fire wall’’ between the investment similar real estate interests, and U.S. Treasury and Eurodollar futures adviser and the broker-dealer reflects includes companies or trusts that are contracts; and exchange-traded and OTC the applicable open-end fund’s primarily engaged in the purchasing or options on interest rate swap portfolio, not an underlying benchmark servicing of commercial or residential agreements. The use of these derivative index, as is the case with index-based mortgage loans or mortgage-related transactions may allow the Fund to funds. The Adviser is not a broker- securities, which may include mortgage- obtain net long or short exposures to dealer, but it is affiliated with the backed securities issued by private selected interest rates. These derivatives Distributor, a broker-dealer, and has issuers and those issued or guaranteed may also be used to hedge risks, implemented a fire wall with respect to by U.S. Government agencies, including interest rate risks and credit its broker-dealer affiliate regarding instrumentalities or sponsored entities. risks, associated with the Fund’s access to information concerning the portfolio investments. The Fund’s Other Investments composition and/or changes to the investments in derivative instruments portfolio. In addition, personnel who The Fund may invest (in the will be consistent with the Fund’s make decisions on the Fund’s portfolio aggregate) up to 20% of its net assets in investment objective and the 1940 Act composition will be subject to the following securities and and will not be used to seek to achieve procedures designed to prevent the use instruments. a multiple or inverse multiple of an and dissemination of material non- The Fund may invest in the exchange- index. The Fund will only enter into public information regarding the Fund’s traded preferred shares of U.S. transactions in OTC derivatives portfolio. In the event (a) the Adviser or exchange-traded mortgage REITs. (including OTC options on mortgage any sub-adviser registers as a broker- The Fund may invest in (i) U.S. REITs, Real Estate Companies and dealer, or becomes newly affiliated with exchange-traded equity and preferred mortgage TBA transactions; OTC a broker-dealer, or (b) any new adviser securities and (ii) domestic over-the- interest rate swap agreements; and OTC or sub-adviser is a registered broker- counter (‘‘OTC’’) preferred securities, in options on interest rate swap dealer or becomes affiliated with each case, of companies engaged in the agreements) with counterparties that the another broker-dealer, it will implement U.S. real estate industry (other than Adviser reasonably believes are capable a fire wall with respect to its relevant mortgage REITs) (collectively, ‘‘Real of performing under the applicable personnel and/or such broker-dealer Estate Companies’’). contract or agreement.12 The Fund may invest in mortgage- The Fund may invest in short-term affiliate, as applicable, regarding access 9 to information concerning the backed securities, and such debt securities and other short-term debt composition and/or changes to the investments may, from time to time, instruments (described below), as well include investments in to-be-announced as cash equivalents, or it may hold cash. portfolio and will be subject to 10 procedures designed to prevent the use transactions and mortgage dollar and dissemination of material non- general trade parameters such as agency, settlement On a temporary basis, including for defensive date, par amount, and price. The actual pools public information regarding such purposes, during the initial invest-up period and delivered generally are determined two days prior portfolio. The Fund currently does not during periods of high cash inflows or outflows, the to the settlement date. intend to use a sub-adviser. Fund may depart from its principal investment 11 In a mortgage dollar roll, the Fund will sell (or The Fund intends to qualify each year strategies; for example, it may hold a higher than buy) mortgage-backed securities for delivery on a as a regulated investment company normal proportion of its assets in cash. During such specified date and simultaneously contract to periods, the Fund may not be able to achieve its repurchase (or sell) substantially similar (same type, under Subchapter M of the Internal investment objective. The Fund may adopt a coupon and maturity) securities on a future date. Revenue Code of 1986, as amended. defensive strategy when the Adviser believes During the period between a sale and repurchase, securities in which the Fund normally invests have the Fund will forgo principal and interest paid on First Trust Strategic Mortgage REIT ETF elevated risks due to political or economic factors the mortgage-backed securities. The Fund will earn Principal Investments and in other extraordinary circumstances. or lose money on a mortgage dollar roll from any 9 Mortgage-backed securities, which are securities difference between the sale price and the future The investment objective of the Fund that directly or indirectly represent a participation purchase price. In a sale and repurchase, the Fund will be to generate high current income. in, or are secured by and payable from, mortgage will also earn money on the interest earned on the 8 loans on real property, will consist of: (1) cash proceeds of the initial sale. The Fund intends Under normal market conditions, the Residential mortgage-backed securities (‘‘RMBS’’); to enter into mortgage dollar rolls only with high (2) commercial mortgage-backed securities quality securities dealers and banks, as determined (who is a supervised person) responsible for (‘‘CMBS’’); (3) stripped mortgage-backed securities by the Adviser. administering the policies and procedures adopted (‘‘SMBS’’), which are mortgage-backed securities 12 The Fund will seek, where possible, to use under subparagraph (i) above. where mortgage payments are divided between counterparties, as applicable, whose financial status 8 The term ‘‘under normal market conditions’’ as paying the loan’s principal and paying the loan’s is such that the risk of default is reduced; however, used herein includes, but is not limited to, the interest; (4) collateralized mortgage obligations the risk of losses resulting from default is still absence of adverse market, economic, political or (‘‘CMOs’’) and real estate mortgage investment possible. The Adviser will evaluate the other conditions, including extreme volatility or conduits (‘‘REMICs’’), which are mortgage-backed creditworthiness of counterparties on an ongoing trading halts in the securities markets or the securities that are divided into multiple classes, basis. In addition to information provided by credit financial markets generally; operational issues with each class being entitled to a different share agencies, the Adviser’s analysis will evaluate each causing dissemination of inaccurate market of the principal and interest payments received approved counterparty using various methods of information; or force majeure type events such as from the pool of underlying assets. analysis and may consider the Adviser’s past systems failure, natural or man-made disaster, act 10 A to-be-announced (‘‘TBA’’) transaction is a experience with the counterparty, its known of God, armed conflict, act of terrorism, riot or labor method of trading mortgage-backed securities. In a disciplinary history and its share of market disruption or any similar intervening circumstance. TBA transaction, the buyer and seller agree upon participation.

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The percentage of the Fund invested in be investment companies registered securities of issuers in any one such holdings or held in cash will vary under the 1940 Act. industry.19 This restriction does not and will depend on several factors, apply to securities of issuers in the real Investment Restrictions including market conditions. The Fund estate sector, including real estate may invest in the following short-term The Fund may enter into short sales investment trusts; obligations issued or debt instruments: 13 (1) Fixed rate and as part of its overall portfolio guaranteed by the U.S. government, its floating rate U.S. government securities, management strategies or to offset a agencies or instrumentalities; or including bills, notes and bonds potential decline in the value of a securities of other investment differing as to maturity and rates of security; however, the Fund will not companies. The Fund will be interest, which are either issued or engage in short sales with respect to concentrated in the real estate sector. guaranteed by the U.S. Treasury or by more than 30% of the value of its net U.S. government agencies or assets. To the extent required under Creation and Redemption of Shares instrumentalities; (2) certificates of applicable federal securities laws, rules, The Fund will issue and redeem deposit issued against funds deposited and interpretations thereof, the Fund Shares on a continuous basis at net asset in a bank or savings and loan will ‘‘set aside’’ liquid assets or engage value (‘‘NAV’’) 20 only in large blocks of association; (3) bankers’ acceptances, in other measures to ‘‘cover’’ open Shares (‘‘Creation Units’’) in which are short-term credit instruments positions and short positions held in transactions with authorized used to finance commercial connection with the foregoing types of participants, generally including broker- transactions; (4) repurchase transactions. dealers and large institutional investors agreements,14 which involve purchases The Fund may hold up to an aggregate (‘‘Authorized Participants’’). Creation of debt securities; (5) bank time amount of 15% of its net assets in Units generally will consist of 50,000 deposits, which are monies kept on illiquid assets (calculated at the time of Shares, although this may change from deposit with banks or savings and loan investment), including Rule 144A time to time. Creation Units, however, associations for a stated period of time securities deemed illiquid by the are not expected to consist of less than 17 at a fixed rate of interest; and (6) Adviser. The Fund will monitor its 50,000 Shares. As described in the commercial paper, which is short-term portfolio liquidity on an ongoing basis Registration Statement and consistent unsecured promissory notes.15 to determine whether, in light of current with the Exemptive Relief, the Fund The Fund may invest (but only, in the circumstances, an adequate level of will issue and redeem Creation Units in aggregate, up to 10% of its net assets) in liquidity is being maintained, and will exchange for an in-kind portfolio of the securities of money market funds consider taking appropriate steps in instruments and/or cash in lieu of such and other ETFs 16 that, in each case, will order to maintain adequate liquidity if, instruments (the ‘‘Creation Basket’’).21 through a change in values, net assets, In addition, if there is a difference 13 or other circumstances, more than 15% Short-term debt instruments are issued by between the NAV attributable to a of the Fund’s net assets are held in issuers having a long-term debt rating of at least A Creation Unit and the market value of by Standard & Poor’s Ratings Services, a Division illiquid assets. Illiquid assets include the Creation Basket exchanged for the of The McGraw-Hill Companies, Inc. (‘‘S&P securities subject to contractual or other Ratings’’), Moody’s Investors Service, Inc. Creation Unit, the party conveying restrictions on resale and other (‘‘Moody’s’’) or Fitch Ratings (‘‘Fitch’’) and have a instruments with the lower value will instruments that lack readily available maturity of one year or less. pay to the other an amount in cash 14 The Fund intends to enter into repurchase markets as determined in accordance equal to the difference (referred to as the agreements only with financial institutions and with Commission staff guidance.18 ‘‘Cash Component’’). dealers believed by the Adviser to present minimal The Fund may not invest 25% or credit risks in accordance with criteria approved by Creations and redemptions must be more of the value of its total assets in the Board of Trustees of the Trust (‘‘Trust Board’’). made by or through an Authorized The Adviser will review and monitor the creditworthiness of such institutions. The Adviser 17 In reaching liquidity decisions, the Adviser Participant that has executed an will monitor the value of the collateral at the time may consider the following factors: the frequency agreement that has been agreed to by the the transaction is entered into and at all times of trades and quotes for the security; the number of Distributor and BNY with respect to during the term of the repurchase agreement. dealers wishing to purchase or sell the security and creations and redemptions of Creation 15 The Fund may only invest in commercial paper the number of other potential purchasers; dealer rated A–1 or higher by S&P Ratings, Prime-1 or undertakings to make a market in the security; and Units. All standard orders to create higher by Moody’s or F1 or higher by Fitch. the nature of the security and the nature of the Creation Units must be received by the 16 An ETF is an investment company registered marketplace in which it trades (e.g., the time transfer agent no later than the closing under the 1940 Act that holds a portfolio of needed to dispose of the security, the method of time of the regular trading session on securities. Many ETFs are designed to track the soliciting offers and the mechanics of transfer). the NYSE (ordinarily 4:00 p.m., Eastern performance of a securities index, including 18 The Commission has stated that long-standing industry, sector, country and region indexes. ETFs Commission guidelines have required open-end included in the Fund will be listed and traded in funds to hold no more than 15% of their net assets 19 See Form N–1A, Item 9. The Commission has the U.S. on registered exchanges. The Fund may in illiquid securities and other illiquid assets. See taken the position that a fund is concentrated if it invest in the securities of ETFs in excess of the Investment Company Act Release No. 28193 (March invests more than 25% of the value of its total limits imposed under the 1940 Act pursuant to 11, 2008), 73 FR 14618 (March 18, 2008), footnote assets in any one industry. See, e.g., Investment exemptive orders obtained by other ETFs and their 34. See also Investment Company Act Release No. Company Act Release No. 9011 (October 30, 1975), sponsors from the Commission. In addition, the 5847 (October 21, 1969), 35 FR 19989 (December 40 FR 54241 (November 21, 1975). Fund may invest in the securities of certain other 31, 1970) (Statement Regarding ‘‘Restricted 20 The NAV of the Fund’s Shares generally will investment companies in excess of the limits Securities’’); Investment Company Act Release No. be calculated once daily Monday through Friday as imposed under the 1940 Act pursuant to an 18612 (March 12, 1992), 57 FR 9828 (March 20, of the close of regular trading on the New York exemptive order that the Trust has obtained from 1992) (Revisions of Guidelines to Form N–1A). A Stock Exchange (‘‘NYSE’’), generally 4:00 p.m., the Commission. See Investment Company Act fund’s portfolio security is illiquid if it cannot be Eastern Time (the ‘‘NAV Calculation Time’’). NAV Release No. 30377 (February 5, 2013) (File No. 812– disposed of in the ordinary course of business per Share will be calculated by dividing the Fund’s 13895). The ETFs in which the Fund may invest within seven days at approximately the value net assets by the number of Fund Shares include Index Fund Shares (as described in Nasdaq ascribed to it by the fund. See Investment Company outstanding. Rule 5705), Portfolio Depository Receipts (as Act Release No. 14983 (March 12, 1986), 51 FR 21 It is expected that the Fund will typically issue described in Nasdaq Rule 5705), and Managed Fund 9773 (March 21, 1986) (adopting amendments to and redeem Creation Units on an in-kind basis; Shares (as described in Nasdaq Rule 5735). While Rule 2a-7 under the 1940 Act); Investment however, subject to, and in accordance with, the the Fund may invest in inverse ETFs, the Fund will Company Act Release No. 17452 (April 23, 1990), provisions of the Exemptive Relief, the Fund may, not invest in leveraged or inverse leveraged (e.g., 2X 55 FR 17933 (April 30, 1990) (adopting Rule 144A at times, issue and redeem Creation Units on a cash or -3X) ETFs. under the Securities Act of 1933). (or partially cash) basis.

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Time) (the ‘‘Closing Time’’) in each case or reliability of valuations that are so traded instruments utilizing a range of on the date such order is placed in order obtained, such investments will be market-based inputs and assumptions, for the creation of Creation Units to be valued at fair value, as determined by including readily available market effected based on the NAV of Shares as the Pricing Committee, in accordance quotations obtained from broker-dealers next determined on such date after with valuation procedures (which may making markets in such instruments, receipt of the order in proper form. be revised from time to time) adopted by cash flows, and transactions for Shares may be redeemed only in the Trust Board (the ‘‘Valuation comparable instruments. In pricing Creation Units at their NAV next Procedures’’), and in accordance with certain instruments, the Pricing Services determined after receipt not later than provisions of the 1940 Act. The Pricing may consider information about an the Closing Time of a redemption Committee’s fair value determinations instrument’s issuer or market activity request in proper form by the Fund may require subjective judgments about provided by the Adviser. through the transfer agent and only on the value of an investment. The fair Short-Term Debt Instruments having a a business day. valuations attempt to estimate the value remaining maturity of 60 days or less The Fund’s custodian, through the at which an investment could be sold at when purchased will typically be National Securities Clearing the time of pricing, although actual sales valued at cost adjusted for amortization Corporation, will make available on could result in price differences, which of premiums and accretion of discounts, each business day, prior to the opening could be material. provided the Pricing Committee has of business of the Exchange, the list of Certain securities in which the Fund determined that the use of amortized the names and quantities of the may invest will not be listed on any cost is an appropriate reflection of value instruments comprising the Creation securities exchange or board of trade. given market and issuer-specific Basket, as well as the estimated Cash Such securities will typically be bought conditions existing at the time of the Component (if any), for that day. The and sold by institutional investors in determination. published Creation Basket will apply individually negotiated private Certificates of deposit and bank time until a new Creation Basket is transactions that function in many deposits will typically be valued at cost. announced on the following business respects like an OTC secondary market, Repurchase agreements will typically day prior to commencement of trading although typically no formal market be valued as follows: Overnight in the Shares. makers will exist. Certain securities, repurchase agreements will be valued at particularly debt securities, will have amortized cost when it represents the Net Asset Value few or no trades, or trade infrequently, best estimate of value. Term repurchase The Fund’s NAV will be determined and information regarding a specific agreements (i.e., those whose maturity as of Closing Time on each day the security may not be widely available or exceeds seven days) will be valued at NYSE is open for trading. If the NYSE may be incomplete. Accordingly, the average of the bid quotations closes early on a valuation day, the NAV determinations of the value of debt obtained daily from at least two will be determined as of that time. NAV securities may be based on infrequent recognized dealers. per Share will be calculated for the and dated information. Because there is Common stocks and other equity Fund by taking the value of the Fund’s less reliable, objective data available, securities (including mortgage REITs total assets, including interest or elements of judgment may play a greater (both common and preferred shares); dividends accrued but not yet collected, role in valuation of debt securities than ETFs; and exchange-traded Real Estate less all liabilities, including accrued for other types of securities. Companies), as well as preferred expenses and dividends declared but The information summarized below is securities of Real Estate Companies, that unpaid, and dividing such amount by based on the Valuation Procedures as are listed on any exchange other than the total number of Shares outstanding. currently in effect; however, as noted the Exchange will typically be valued at The result, rounded to the nearest cent, above, the Valuation Procedures are the last sale price on the exchange on will be the NAV per Share. All amended from time to time and, which they are principally traded on the valuations will be subject to review by therefore, such information is subject to business day as of which such value is the Trust Board or its delegate. change. being determined. Such securities listed The Fund’s investments will be The following investments will on the Exchange will typically be valued daily. As described more typically be valued using information valued at the official closing price on specifically below, investments traded provided by a Pricing Service: (a) the business day as of which such value on an exchange (i.e., a regulated Mortgage-Related Instruments; (b) OTC is being determined. If there has been no market), will generally be valued at derivatives (including OTC options on sale on such day, or no official closing market value prices that represent last mortgage REITs, Real Estate Companies price in the case of securities traded on sale or official closing prices. In and mortgage TBA transactions; OTC the Exchange, such securities will addition, as described more specifically interest rate swap agreements; and OTC typically be valued using fair value below, non-exchange traded options on interest rate swap pricing. Such securities traded on more investments will generally be valued agreements); (c) OTC preferred than one securities exchange will be using prices obtained from third-party securities of Real Estate Companies; and valued at the last sale price or official pricing services (each, a ‘‘Pricing (d) except as provided below, short-term closing price, as applicable, on the 22 Service’’). If, however, valuations for U.S. government securities, commercial business day as of which such value is any of the Fund’s investments cannot be paper, and bankers’ acceptances, all as being determined at the close of the readily obtained as provided in the set forth under ‘‘Other Investments’’ exchange representing the principal preceding manner, or the Pricing (collectively, ‘‘Short-Term Debt market for such securities. Committee of the Adviser (the ‘‘Pricing Instruments’’). Debt instruments may be Money market funds will typically be 23 Committee’’) questions the accuracy valued at evaluated mean prices, as valued at their net asset values as provided by Pricing Services. Pricing reported by such funds to Pricing 22 The Adviser may use various Pricing Services Services. or discontinue the use of any Pricing Services, as Services typically value non-exchange- approved by the Trust Board from time to time. Exchange-traded options on mortgage 23 The Pricing Committee will be subject to dissemination of material non-public information REITs and Real Estate Companies, procedures designed to prevent the use and regarding the Fund’s portfolio. exchange-traded U.S. Treasury and

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Eurodollar futures contracts, exchange- site the following information regarding Reports will be available free upon traded interest rate swap agreements, each portfolio holding, as applicable to request from the Fund, and those exchange-traded options on U.S. the type of holding: Ticker symbol, documents and the Form N–CSR and Treasury and Eurodollar futures CUSIP number or other identifier, if Form N–SAR may be viewed on-screen contracts, and exchange-traded options any; a description of the holding or downloaded from the Commission’s on interest rate swap agreements will (including the type of holding, such as Web site at www.sec.gov. Information typically be valued at the closing price the type of swap); the identity of the regarding market price and trading in the market where such instruments security or other asset or instrument volume of the Shares will be continually are principally traded. underlying the holding, if any; for available on a real-time basis throughout the day on brokers’ computer screens Availability of Information options, the option strike price; quantity held (as measured by, for example, par and other electronic services. The Fund’s Web site value, notional value or number of Information regarding the previous (www.ftportfolios.com), which will be shares, contracts or units); maturity day’s closing price and trading volume publicly available prior to the public date, if any; coupon rate, if any; information for the Shares will be offering of Shares, will include a form effective date, if any; market value of the published daily in the financial section of the prospectus for the Fund that may holding; and percentage weighting of of newspapers. Quotation and last sale be downloaded. The Web site will the holding in the Fund’s portfolio. The information for the Shares will be include the Shares’ ticker, CUSIP and Web site information will be publicly available via Nasdaq proprietary quote exchange information along with available at no charge. and trade services, as well as in additional quantitative information In addition, for the Fund, an accordance with the Unlisted Trading updated on a daily basis, including, for estimated value, defined in Rule Privileges and the Consolidated Tape the Fund: (1) Daily trading volume, the 5735(c)(3) as the ‘‘Intraday Indicative Association (‘‘CTA’’) plans for the prior business day’s reported NAV and Value,’’ that reflects an estimated Shares. Quotation and last sale closing price, mid-point of the bid/ask intraday value of the Fund’s Disclosed information for U.S. exchange-traded spread at the time of calculation of such Portfolio, will be disseminated. equity securities (including mortgage 24 NAV (the ‘‘Bid/Ask Price’’), and a Moreover, the Intraday Indicative Value, REITs, ETFs and exchange-traded Real calculation of the premium and available on the NASDAQ OMX Estate Companies) will be available discount of the Bid/Ask Price against Information LLC proprietary index data from the exchanges on which they are the NAV; and (2) data in chart format service,27 will be based upon the current traded as well as in accordance with any displaying the frequency distribution of value for the components of the applicable CTA plans. Quotation and discounts and premiums of the daily Disclosed Portfolio and will be updated last sale information for U.S. exchange- Bid/Ask Price against the NAV, within and widely disseminated by one or traded options will be available via the appropriate ranges, for each of the four more major market data vendors and Options Price Reporting Authority. previous calendar quarters. On each broadly displayed at least every 15 Pricing information for Mortgage- business day, before commencement of seconds during the Regular Market Related Instruments, OTC Real Estate trading in Shares in the Regular Market Session. The Intraday Indicative Value Companies, Short-Term Debt Session 25 on the Exchange, the Fund will be based on quotes and closing Instruments, repurchase agreements, will disclose on its Web site the prices from the securities’ local market certificates of deposit, bank time identities and quantities of the portfolio and may not reflect events that occur deposits, OTC options on mortgage of securities and other assets (the subsequent to the local market’s close. REITs, Real Estate Companies and ‘‘Disclosed Portfolio’’ as defined in Premiums and discounts between the mortgage TBA transactions, OTC Nasdaq Rule 5735(c)(2)) held by the Intraday Indicative Value and the interest rate swap agreements, and OTC Fund that will form the basis for the market price may occur. This should not options on interest rate swap Fund’s calculation of NAV at the end of agreements will be available from major be viewed as a ‘‘real time’’ update of the the business day.26 broker-dealer firms and/or major market NAV per Share of the Fund, which is The Fund’s disclosure of derivative data vendors and/or Pricing Services. calculated only once a day. positions in the Disclosed Portfolio will Pricing information for mortgage REITs include sufficient information for The dissemination of the Intraday Indicative Value, together with the (both common and preferred shares), market participants to use to value these exchange-traded Real Estate Companies, Disclosed Portfolio, will allow investors positions intraday. On a daily basis, the ETFs, exchange-traded options on to determine the value of the underlying Fund will disclose on the Fund’s Web mortgage REITs and Real Estate portfolio of the Fund on a daily basis Companies, exchange-traded U.S. and will provide a close estimate of that 24 The Bid/Ask Price of the Fund will be Treasury and Eurodollar futures value throughout the trading day. determined using the mid-point of the highest bid contracts, exchange-traded interest rate and the lowest offer on the Exchange as of the time Investors will also be able to obtain swap agreements, exchange-traded of calculation of the Fund’s NAV. The records the Fund’s Statement of Additional relating to Bid/Ask Prices will be retained by the options on U.S. Treasury and Eurodollar Information (‘‘SAI’’), the Fund’s annual Fund and its service providers. futures contracts, and exchange-traded 25 and semi-annual reports (together, See Nasdaq Rule 4120(b)(4) (describing the options on interest rate swap three trading sessions on the Exchange: (1) Pre- ‘‘Shareholder Reports’’), and its Form agreements will be available from the Market Session from 4 a.m. to 9:30 a.m., Eastern N–CSR and Form N–SAR, filed twice a applicable listing exchange and from Time; (2) Regular Market Session from 9:30 a.m. to year. The Fund’s SAI and Shareholder 4 p.m. or 4:15 p.m., Eastern Time; and (3) Post- major market data vendors. Money Market Session from 4 p.m. or 4:15 p.m. to 8 p.m., market funds are typically priced once Eastern Time). 27 Currently, the NASDAQ OMX Global Index 26 Under accounting procedures to be followed by Data Service (‘‘GIDS’’) is the Nasdaq global index each business day and their prices will the Fund, trades made on the prior business day data feed service, offering real-time updates, daily be available through the applicable (‘‘T’’) will be booked and reflected in NAV on the summary messages, and access to widely followed fund’s Web site or from major market current business day (‘‘T+1’’). Accordingly, the indexes and Intraday Indicative Values for ETFs. data vendors. Fund will be able to disclose at the beginning of the GIDS provides investment professionals with the Additional information regarding the business day the portfolio that will form the basis daily information needed to track or trade Nasdaq for the NAV calculation at the end of the business indexes, listed ETFs, or third-party partner indexes Fund and the Shares, including day. and ETFs. investment strategies, risks, creation and

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redemption procedures, fees, Fund Surveillance a comprehensive surveillance sharing holdings disclosure policies, The Exchange represents that trading agreement. Moreover, FINRA, on behalf distributions and taxes will be included in the Shares will be subject to the of the Exchange, will be able to access, in the Registration Statement. existing trading surveillances, as needed, trade information for certain fixed income securities held by the Initial and Continued Listing administered by both Nasdaq and also the Financial Industry Regulatory Fund reported to FINRA’s Trade The Shares will be subject to Rule Authority (‘‘FINRA’’) on behalf of the Reporting and Compliance Engine 5735, which sets forth the initial and Exchange, which are designed to detect (‘‘TRACE’’). At least 90% of the Fund’s net assets continued listing criteria applicable to violations of Exchange rules and that are invested in exchange-traded Managed Fund Shares. The Exchange applicable federal securities laws.29 The derivatives (including exchange-traded represents that, for initial and continued Exchange represents that these procedures are adequate to properly options on mortgage REITs and Real listing, the Fund must be in compliance Estate Companies; exchange-traded U.S. 28 monitor Exchange trading of the Shares with Rule 10A–3 under the Act. A Treasury and Eurodollar futures minimum of 100,000 Shares will be in all trading sessions and to deter and detect violations of Exchange rules and contracts; exchange-traded interest rate outstanding at the commencement of swap agreements; exchange-traded trading on the Exchange. The Exchange applicable federal securities laws. The surveillances referred to above options on U.S. Treasury and Eurodollar will obtain a representation from the futures contracts; and exchange-traded issuer of the Shares that the NAV per generally focus on detecting securities trading outside their normal patterns, options on interest rate swap Share will be calculated daily and that agreements) (in the aggregate) will be the NAV and the Disclosed Portfolio which could be indicative of manipulative or other violative activity. invested in instruments that trade in will be made available to all market markets that are members of ISG or are participants at the same time. When such situations are detected, surveillance analysis follows and parties to a comprehensive surveillance Trading Halts investigations are opened, where sharing agreement with the Exchange. appropriate, to review the behavior of All of the Fund’s net assets that are With respect to trading halts, the all relevant parties for all relevant invested in exchange-traded equity Exchange may consider all relevant trading violations. securities (including mortgage REITs factors in exercising its discretion to FINRA, on behalf of the Exchange, (both common and preferred shares); halt or suspend trading in the Shares of will communicate as needed regarding ETFs; and exchange-traded Real Estate the Fund. Nasdaq will halt trading in trading in the Shares and the exchange- Companies) (in the aggregate) will be the Shares under the conditions traded securities and instruments held invested in securities that trade in specified in Nasdaq Rules 4120 and by the Fund (including mortgage REITs markets that are members of ISG or are 4121, including the trading pauses (both common and preferred shares); parties to a comprehensive surveillance under Nasdaq Rules 4120(a)(11) and exchange-traded Real Estate Companies; sharing agreement with the Exchange. (12). Trading may be halted because of ETFs; exchange-traded options on In addition, the Exchange also has a market conditions or for reasons that, in mortgage REITs and Real Estate general policy prohibiting the distribution of material, non-public the view of the Exchange, make trading Companies; exchange-traded U.S. information by its employees. in the Shares inadvisable. These may Treasury and Eurodollar futures include: (1) The extent to which trading contracts; exchange-traded interest rate Information Circular is not occurring in the securities and/or swap agreements; exchange-traded Prior to the commencement of the other assets constituting the options on U.S. Treasury and Eurodollar trading, the Exchange will inform its Disclosed Portfolio of the Fund; or (2) futures contracts; and exchange-traded members in an Information Circular of whether other unusual conditions or options on interest rate swap the special characteristics and risks circumstances detrimental to the agreements) with other markets and associated with trading the Shares. maintenance of a fair and orderly other entities that are members of the Specifically, the Information Circular market are present. Trading in the Intermarket Surveillance Group will discuss the following: (1) The Shares also will be subject to Rule (‘‘ISG’’),30 and FINRA may obtain procedures for purchases and 5735(d)(2)(D), which sets forth trading information regarding trading in redemptions of Shares in Creation Units circumstances under which Shares of the Shares and such exchange-traded (and that Shares are not individually the Fund may be halted. securities and instruments held by the redeemable); (2) Nasdaq Rule 2111A, Trading Rules Fund from such markets and other which imposes suitability obligations on entities. In addition, the Exchange may Nasdaq members with respect to Nasdaq deems the Shares to be equity obtain information regarding trading in recommending transactions in the securities, thus rendering trading in the the Shares and the exchange-traded Shares to customers; (3) how Shares subject to Nasdaq’s existing rules securities and instruments held by the information regarding the Intraday governing the trading of equity Fund from markets and other entities Indicative Value and the Disclosed securities. Nasdaq will allow trading in that are members of ISG, which includes Portfolio is disseminated; (4) the risks the Shares from 4:00 a.m. until 8:00 securities and futures exchanges, or involved in trading the Shares during p.m., Eastern Time. The Exchange has with which the Exchange has in place the Pre-Market and Post-Market appropriate rules to facilitate Sessions when an updated Intraday transactions in the Shares during all 29 FINRA surveils trading on the Exchange Indicative Value will not be calculated pursuant to a regulatory services agreement. The trading sessions. As provided in Nasdaq Exchange is responsible for FINRA’s performance or publicly disseminated; (5) the Rule 5735(b)(3), the minimum price under this regulatory services agreement. requirement that members deliver a variation for quoting and entry of orders 30 For a list of the current members of ISG, see prospectus to investors purchasing in Managed Fund Shares traded on the www.isgportal.org. The Exchange notes that not all newly issued Shares prior to or Exchange is $0.01. components of the Disclosed Portfolio may trade on markets that are members of ISG or with which the concurrently with the confirmation of a Exchange has in place a comprehensive transaction; and (6) trading information. 28 See 17 CFR 240.10A–3. surveillance sharing agreement. The Information Circular will also

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discuss any exemptive, no-action and The Adviser is not a broker-dealer, All of the Fund’s net assets that are interpretive relief granted by the but it is affiliated with the Distributor, invested in exchange-traded equity Commission from any rules under the a broker-dealer, and is required to securities (including mortgage REITs Act. implement a ‘‘fire wall’’ with respect to (both common and preferred shares); Additionally, the Information Circular such broker-dealer affiliate regarding ETFs; and exchange-traded Real Estate will reference that the Fund is subject access to information concerning the Companies) (in the aggregate) will be to various fees and expenses described composition and/or changes to the invested in securities that trade in in the Registration Statement. The Fund’s portfolio. In addition, paragraph markets that are members of ISG or are Information Circular will also disclose (g) of Nasdaq Rule 5735 further requires parties to a comprehensive surveillance the trading hours of the Shares of the that personnel who make decisions on sharing agreement with the Exchange. Fund and the applicable NAV the open-end fund’s portfolio The investment objective of the Fund Calculation Time for the Shares. The composition must be subject to will be to generate high current income. Information Circular will disclose that procedures designed to prevent the use Under normal market conditions, the information about the Shares of the and dissemination of material non- Fund will seek to achieve its investment Fund will be publicly available on the public information regarding the open- objective by investing at least 80% of its Fund’s Web site. end fund’s portfolio. net assets (including investment All statements and representations FINRA, on behalf of the Exchange, borrowings) in the exchange-traded made in this filing regarding (a) the will communicate as needed regarding common shares of U.S. exchange-traded description of the portfolio, (b) trading in the Shares and the exchange- mortgage REITs. The Fund may invest limitations on portfolio holdings or traded securities and instruments held up to 20% of its net assets in the reference assets, or (c) the applicability by the Fund (including mortgage REITs exchange-traded preferred shares of U.S. of Exchange rules and surveillance (both common and preferred shares); exchange-traded mortgage REITs. exchange-traded Real Estate Companies; Additionally, the Fund may invest up to procedures shall constitute continued ETFs; exchange-traded options on 20% of its net assets in derivative listing requirements for listing the mortgage REITs and Real Estate instruments (including exchange-traded Shares on the Exchange. In addition, the Companies; exchange-traded U.S. and OTC options on mortgage REITs issuer has represented to the Exchange Treasury and Eurodollar futures and Real Estate Companies; OTC that it will advise the Exchange of any contracts; exchange-traded interest rate options on mortgage TBA transactions; failure by the Fund to comply with the swap agreements; exchange-traded exchange-traded U.S. Treasury and continued listing requirements, and, options on U.S. Treasury and Eurodollar Eurodollar futures contracts; exchange- pursuant to its obligations under futures contracts; and exchange-traded traded and OTC interest rate swap Section 19(g)(1) of the Act, the Exchange options on interest rate swap agreements; exchange-traded options on will monitor for compliance with the agreements) with other markets and U.S. Treasury and Eurodollar futures continued listing requirements. If the other entities that are members of ISG, contracts; and exchange-traded and OTC Fund is not in compliance with the and FINRA may obtain trading options on interest rate swap applicable listing requirements, the information regarding trading in the agreements). The Fund’s investments in Exchange will commence delisting Shares and such exchange-traded derivative instruments will be procedures under the Nasdaq 5800 securities and instruments held by the consistent with the Fund’s investment Series. Fund from such markets and other objective and the 1940 Act and will not 2. Statutory Basis entities. In addition, the Exchange may be used to seek to achieve a multiple or obtain information regarding trading in inverse multiple of an index. Also, the Nasdaq believes that the proposal is the Shares and the exchange-traded Fund may hold up to an aggregate consistent with Section 6(b) of the Act securities and instruments held by the amount of 15% of its net assets in in general and Section 6(b)(5) of the Act Fund from markets and other entities illiquid assets (calculated at the time of in particular in that it is designed to that are members of ISG, which includes investment), including Rule 144A prevent fraudulent and manipulative securities and futures exchanges, or securities deemed illiquid by the acts and practices, to promote just and with which the Exchange has in place Adviser. The Fund will monitor its equitable principles of trade, to foster a comprehensive surveillance sharing portfolio liquidity on an ongoing basis cooperation and coordination with agreement. Moreover, FINRA, on behalf to determine whether, in light of current persons engaged in facilitating of the Exchange, will be able to access, circumstances, an adequate level of transactions in securities, and to remove as needed, trade information for certain liquidity is being maintained, and will impediments to and perfect the fixed income securities held by the consider taking appropriate steps in mechanism of a free and open market Fund reported to FINRA’s TRACE. order to maintain adequate liquidity if, and, in general, to protect investors and At least 90% of the Fund’s net assets through a change in values, net assets, the public interest. that are invested in exchange-traded or other circumstances, more than 15% The Exchange believes that the derivatives (including exchange-traded of the Fund’s net assets are held in proposed rule change is designed to options on mortgage REITs and Real illiquid assets. Illiquid assets include prevent fraudulent and manipulative Estate Companies; exchange-traded U.S. securities subject to contractual or other acts and practices in that the Shares will Treasury and Eurodollar futures restrictions on resale and other be listed and traded on the Exchange contracts; exchange-traded interest rate instruments that lack readily available pursuant to the initial and continued swap agreements; exchange-traded markets as determined in accordance listing criteria in Nasdaq Rule 5735. The options on U.S. Treasury and Eurodollar with Commission staff guidance. Exchange represents that trading in the futures contracts; and exchange-traded The proposed rule change is designed Shares will be subject to the existing options on interest rate swap to promote just and equitable principles trading surveillances, administered by agreements) (in the aggregate) will be of trade and to protect investors and the both Nasdaq and also FINRA on behalf invested in instruments that trade in public interest in that the Exchange will of the Exchange, which are designed to markets that are members of ISG or are obtain a representation from the issuer detect violations of Exchange rules and parties to a comprehensive surveillance of the Shares that the NAV per Share applicable federal securities laws. sharing agreement with the Exchange. will be calculated daily and that the

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NAV and the Disclosed Portfolio will be other applicable quantitative securities and instruments held by the made available to all market information. Trading in Shares of the Fund from such markets and other participants at the same time. In Fund will be halted under the entities. In addition, the Exchange may addition, a large amount of information conditions specified in Nasdaq Rules obtain information regarding trading in will be publicly available regarding the 4120 and 4121 or because of market the Shares and the exchange-traded Fund and the Shares, thereby promoting conditions or for reasons that, in the securities and instruments held by the market transparency. Moreover, the view of the Exchange, make trading in Fund from markets and other entities Intraday Indicative Value, available on the Shares inadvisable, and trading in that are members of ISG, which includes the NASDAQ OMX Information LLC the Shares will be subject to Nasdaq securities and futures exchanges, or proprietary index data service, will be Rule 5735(d)(2)(D), which sets forth with which the Exchange has in place widely disseminated by one or more circumstances under which Shares of a comprehensive surveillance sharing major market data vendors and broadly the Fund may be halted. In addition, as agreement. Moreover, FINRA, on behalf displayed at least every 15 seconds noted above, investors will have ready of the Exchange, will be able to access, during the Regular Market Session. On access to information regarding the as needed, trade information for certain each business day, before Fund’s holdings, the Intraday Indicative fixed income securities held by the commencement of trading in Shares in Value, the Disclosed Portfolio, and Fund reported to FINRA’s TRACE. quotation and last sale information for the Regular Market Session on the Furthermore, as noted above, investors the Shares. Exchange, the Fund will disclose on its will have ready access to information Web site the Disclosed Portfolio that The Fund’s investments will be valued daily. Investments traded on an regarding the Fund’s holdings, the will form the basis for the Fund’s Intraday Indicative Value, the Disclosed calculation of NAV at the end of the exchange (i.e., a regulated market), will generally be valued at market value Portfolio, and quotation and last sale business day. Information regarding information for the Shares. market price and trading volume of the prices that represent last sale or official Shares will be continually available on closing prices. Non-exchange traded For the above reasons, Nasdaq a real-time basis throughout the day on investments will generally be valued believes the proposed rule change is brokers’ computer screens and other using prices obtained from a Pricing consistent with the requirements of electronic services, and quotation and Service. If, however, valuations for any Section 6(b)(5) of the Act. last sale information for the Shares will of the Fund’s investments cannot be readily obtained as provided in the B. Self-Regulatory Organization’s be available via Nasdaq proprietary Statement on Burden on Competition quote and trade services, as well as in preceding manner, or the Pricing Committee questions the accuracy or accordance with the Unlisted Trading The Exchange does not believe that reliability of valuations that are so Privileges and the CTA plans for the the proposed rule change will impose obtained, such investments will be Shares. Pricing information for any burden on competition that is not Mortgage-Related Instruments, OTC valued at fair value, as determined by the Pricing Committee, in accordance necessary or appropriate in furtherance Real Estate Companies, Short-Term Debt of the purposes of the Act. The Instruments, repurchase agreements, with the Valuation Procedures and in accordance with provisions of the 1940 Exchange believes that the proposed certificates of deposit, bank time rule change will facilitate the listing and deposits, OTC options on mortgage Act. The proposed rule change is designed trading of an additional type of actively- REITs, Real Estate Companies and to perfect the mechanism of a free and managed exchange-traded fund that will mortgage TBA transactions, OTC open market and, in general, to protect enhance competition among market interest rate swap agreements, and OTC investors and the public interest in that participants, to the benefit of investors options on interest rate swap it will facilitate the listing and trading and the marketplace. agreements will be available from major of an additional type of actively- C. Self-Regulatory Organization’s broker-dealer firms and/or major market managed exchange-traded product that Statement on Comments on the data vendors and/or Pricing Services. will enhance competition among market Proposed Rule Change Received From Pricing information for mortgage REITs participants, to the benefit of investors (both common and preferred shares), and the marketplace. As noted above, Members, Participants, or Others exchange-traded Real Estate Companies, FINRA, on behalf of the Exchange, will ETFs, exchange-traded options on Written comments were neither communicate as needed regarding solicited nor received. mortgage REITs and Real Estate trading in the Shares and exchange- Companies, exchange-traded U.S. traded securities and instruments held III. Date of Effectiveness of the Treasury and Eurodollar futures by the Fund (including mortgage REITs Proposed Rule Change and Timing for contracts, exchange-traded interest rate (both common and preferred shares); Commission Action swap agreements, exchange-traded exchange-traded Real Estate Companies; options on U.S. Treasury and Eurodollar ETFs; exchange-traded options on Within 45 days of the date of futures contracts, and exchange-traded mortgage REITs and Real Estate publication of this notice in the Federal options on interest rate swap Companies; exchange-traded U.S. Register or within such longer period agreements will be available from the Treasury and Eurodollar futures up to 90 days (i) as the Commission may applicable listing exchange and from contracts; exchange-traded interest rate designate if it finds such longer period major market data vendors. Money swap agreements; exchange-traded to be appropriate and publishes its market funds are typically priced once options on U.S. Treasury and Eurodollar reasons for so finding or (ii) as to which each business day and their prices will futures contracts; and exchange-traded the self-regulatory organization be available through the applicable options on interest rate swap consents, the Commission will: (a) by fund’s Web site or from major market agreements) with other markets and order approve or disapprove such data vendors. other entities that are members of ISG, proposed rule change; or (b) institute The Fund’s Web site will include a and FINRA may obtain trading proceedings to determine whether the form of the prospectus for the Fund and information regarding trading in the proposed rule change should be additional data relating to NAV and Shares and such exchange-traded disapproved.

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IV. Solicitation of Comments For the Commission, by the Division of II. Self-Regulatory Organization’s Trading and Markets, pursuant to delegated Statement of the Purpose of, and Interested persons are invited to authority.31 Statutory Basis for, the Proposed Rule submit written data, views, and Robert W. Errett, Change arguments concerning the foregoing, Deputy Secretary. In its filing with the Commission, the including whether the proposed rule [FR Doc. 2016–11156 Filed 5–11–16; 8:45 am] Exchange included statements change is consistent with the Act. BILLING CODE 8011–01–P concerning the purpose of and basis for Comments may be submitted by any of the proposed rule change and discussed the following methods: any comments it received on the Electronic Comments SECURITIES AND EXCHANGE proposed rule change. The text of these COMMISSION statements may be examined at the • Use the Commission’s Internet places specified in Item IV below. The Exchange has prepared summaries, set comment form (http://www.sec.gov/ [Release No. 34–77780; File No. SR- forth in Sections A, B, and C below, of rules/sro.shtml); or BatsEDGX–2016–13] the most significant parts of such • Send an email to rule-comments@ statements. sec.gov. Please include File Number SR– Self-Regulatory Organizations; Bats NASDAQ–2016–064 on the subject line. EDGX Exchange, Inc.; Notice of Filing A. Self-Regulatory Organization’s and Immediate Effectiveness of a Statement of the Purpose of, and the Paper Comments Proposed Rule Change Related to Fees Statutory Basis for, the Proposed Rule • Change Send paper comments in triplicate May 6, 2016. to Secretary, Securities and Exchange 1. Purpose Pursuant to Section 19(b)(1) of the Commission, 100 F Street NE., The Exchange determines the Washington, DC 20549–1090. Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 liquidity adding rebate that it will All submissions should refer to File notice is hereby given that on April 29, provide to Members using the Exchange’s tiered pricing structure. Number SR–NASDAQ–2016–064. This 2016, Bats EDGX Exchange, Inc. (the Currently, the Exchange provides a file number should be included on the ‘‘Exchange’’ or ‘‘EDGX’’) filed with the $0.0027 per share rebate under footnote subject line if email is used. To help the Securities and Exchange Commission 2 of the Fee Schedule for a Member that Commission process and review your (‘‘Commission’’) the proposed rule adds an ADV 6 of at least 0.02% of the comments more efficiently, please use change as described in Items I, II and III TCV 7 in Tape B securities for orders only one method. The Commission will below, which Items have been prepared that yield fee codes B and 4.8 The post all comments on the Commission’s by the Exchange. The Exchange has Exchange currently has only one Tape B Internet Web site (http://www.sec.gov/ designated the proposed rule change as Volume Tier. rules/sro.shtml). Copies of the one establishing or changing a member The Exchange now proposes to amend submission, all subsequent due, fee, or other charge imposed by the the Tape B Volume Tier to add an amendments, all written statements Exchange under Section 19(b)(3)(A)(ii) additional Tape B Volume Tier to with respect to the proposed rule of the Act 3 and Rule 19b–4(f)(2) provide two Tape B Volume Tiers. The change that are filed with the thereunder,4 which renders the Exchange proposes that the current Commission, and all written proposed rule change effective upon Tape B Volume Tier be renamed Tape communications relating to the filing with the Commission. The B Volume Tier 1. The Exchange proposed rule change between the Commission is publishing this notice to proposes that the rebate and the Commission and any person, other than solicit comments on the proposed rule required criteria for Tape B Volume Tier those that may be withheld from the change from interested persons. 1 remain substantively the same as the public in accordance with the current Tape B Volume Tier. The I. Self-Regulatory Organization’s Exchange also proposes a second Tape provisions of 5 U.S.C. 552, will be Statement of the Terms of Substance of available for Web site viewing and B Volume Tier named ‘‘Tape B Volume the Proposed Rule Change Tier 2.’’ The Exchange proposes to printing in the Commission’s Public provide a rebate per share of $0.0030 Reference Room, 100 F Street NE., The Exchange filed a proposal to pursuant to the Tier and proposes the Washington, DC 20549, on official amend the fee schedule applicable to 5 required criteria to be that a Member business days between the hours of Members and non-members of the adds an ADV of at least 0.15% of the 10:00 a.m. and 3:00 p.m. Copies of such Exchange pursuant to EDGX Rules TCV in Tape B securities. To filing will also be available for 15.1(a) and (c). accommodate this proposed change in inspection and copying at the principal The text of the proposed rule change its Fee Schedule, the Exchange proposes office of the Exchange. All comments is available at the Exchange’s Web site adding an additional row to the Tape B received will be posted without change; at www.batstrading.com, at the Volume Tier table to list the Tape B the Commission does not edit personal principal office of the Exchange, and at Volume Tier 2. The Exchange also identifying information from the Commission’s Public Reference proposes adding an additional column submissions. You should submit only Room. to separate Tape B Volume Tier 1 and information that you wish to make Tape B Volume Tier 2. Finally, the available publicly. All submissions 1 15 U.S.C. 78s(b)(1). Exchange proposes stating as a should refer to File Number SR– 2 17 CFR 240.19b–4. precursor that both Tape B Volume NASDAQ–2016–064 and should be 3 15 U.S.C. 78s(b)(3)(A)(ii). submitted on or before June 2, 2016. 4 17 CFR 240.19b–4(f)(2). 6 As defined on the Exchange’s Fee Schedule. 5 The term ‘‘Member’’ is defined as ‘‘any 7 Id. registered broker or dealer that has been admitted 8 See Securities Exchange Act Release No. 76816 to membership in the Exchange.’’ See Exchange (January 4, 2016, 81 FR 987 (January 8, 2016) (SR– 31 17 CFR 200.30–3(a)(12). Rule 1.5(n). EDGX–2015–67).

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Tiers are applicable to orders yielding currently offered rebate under Tape B III. Date of Effectiveness of the fee codes B and 4 and removing the Volume Tier 1. The addition of a Proposed Rule Change and Timing for same statement from the current text second, higher tier merely incentivizes Commission Action describing Tape B Volume Tier 1. a Member to provide even greater The foregoing rule change has become Implementation Date liquidity. The Exchange further believes effective pursuant to Section 19(b)(3)(A) that the amendment to the Tape B of the Act 12 and paragraph (f) of Rule The Exchange proposes to implement Volume Tier represents an equitable 19b–4 thereunder.13 At any time within this amendment to its Fee Schedule allocation of reasonable dues, fees, and 60 days of the filing of the proposed rule effective May 2, 2016. other charges because the thresholds change, the Commission summarily may 2. Statutory Basis necessary to achieve the tier continue to temporarily suspend such rule change if The Exchange believes that the encourage Members to add displayed it appears to the Commission that such proposed rule change is consistent with liquidity to the EDGX Book 11 each action is necessary or appropriate in the the objectives of Section 6 of the Act,9 month. The increased liquidity benefits public interest, for the protection of in general, and furthers the objectives of all investors by deepening EDGX’s investors, or otherwise in furtherance of Section 6(b)(4),10 in particular, as it is liquidity pool, offering additional the purposes of the Act. designed to provide for the equitable flexibility for all investors to enjoy cost IV. Solicitation of Comments allocation of reasonable dues, fees and savings, supporting the quality of price Interested persons are invited to other charges among its Members and discovery, promoting market submit written data, views, and other persons using its facilities. The transparency and improving investor arguments concerning the foregoing, Exchange also notes that it operates in protection. including whether the proposed rule a highly-competitive market in which change is consistent with the Act. market participants can readily direct B. Self-Regulatory Organization’s Statement on Burden on Competition Comments may be submitted by any of order flow to competing venues if they the following methods: deem fee levels at a particular venue to The Exchange does not believe its Electronic Comments be excessive. The proposed rule changes proposed amendment to its Fee reflect a competitive pricing structure • Schedule would impose any burden on Use the Commission’s Internet designed to incent market participants competition that is not necessary or comment form (http://www.sec.gov/ to direct their order flow to the appropriate in furtherance of the rules/sro.shtml); or Exchange. The Exchange believes that • purposes of the Act. The Exchange does Send an email to rule-comments@ the proposed amendments to the Tape sec.gov. Please include File Number SR– not believe that the proposed change B Volume Tier are equitable and non- BatsEDGX–2016–13 on the subject line. discriminatory in they would apply represents a significant departure from uniformly to all Members. The previous pricing offered by the Paper Comments Exchange believes the rate remains Exchange or pricing offered by the • Send paper comments in triplicate competitive with those charged by other Exchange’s competitors. Additionally, to Secretary, Securities and Exchange venues and, therefore, reasonable and Members may opt to disfavor the Commission, 100 F Street NE., equitably allocated to Members. Exchange’s pricing if they believe that Washington, DC 20549–1090. Volume-based rebates such as that alternatives offer them better value. The All submissions should refer to File proposed herein have been widely Exchange does not believe that the Number SR-BatsEDGX–2016–13. This adopted by exchanges, including the proposed additional tier would burden file number should be included on the Exchange, and are equitable because competition, but instead, enhances subject line if email is used. To help the they are open to all Members on an competition, as it is intended to increase Commission process and review your equal basis and provide additional the competitiveness of and draw comments more efficiently, please use benefits or discounts that are reasonably additional volume to the Exchange. The only one method. The Commission will related to: (i) The value to an exchange’s Exchange does not believe the amended post all comments on the Commission’s market quality; (ii) associated higher tier would burden intramarket Internet Web site (http://www.sec.gov/ levels of market activity, such as higher competition as it would apply to all rules/sro.shtml). Copies of the levels of liquidity provision and/or Members uniformly. Accordingly, the submission, all subsequent growth patterns; and (iii) introduction of Exchange does not believe that the amendments, all written statements higher volumes of orders into the price proposed change will impair the ability with respect to the proposed rule and volume discovery processes. The of Members or competing venues to change that are filed with the Exchange believes that the proposal is a maintain their competitive standing in Commission, and all written reasonable, fair and equitable, and not the financial markets. communications relating to the unfairly discriminatory allocation of proposed rule change between the fees and rebates because it will provide C. Self-Regulatory Organization’s Commission and any person, other than Members with an additional incentive Statement on Comments on the those that may be withheld from the to reach certain thresholds on the Proposed Rule Change Received From public in accordance with the Exchange. Members, Participants, or Others provisions of 5 U.S.C. 552, will be In particular, the Exchange believes available for Web site viewing and the addition of the proposed second, The Exchange has not solicited, and printing in the Commission’s Public higher Tape B Volume Tier 2 is a does not intend to solicit, comments on Reference Room, 100 F Street NE., reasonable means to encourage this proposed rule change. The Washington, DC 20549, on official Members to increase the liquidity they Exchange has not received any business days between the hours of provide on the Exchange. Further, unsolicited written comments from 10:00 a.m. and 3:00 p.m. Copies of the Members will still be able to earn the Members or other interested parties. filing also will be available for

9 15 U.S.C. 78f. 11 The EDGX Book is the System’s electronic file 12 15 U.S.C. 78s(b)(3)(A). 10 15 U.S.C. 78f(b)(4). of orders. See Exchange Rule 1.5(d). 13 17 CFR 240.19b–4(f).

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inspection and copying at the principal Register on March 22, 2016.4 No calendar days, before the anniversary of office of the Exchange. All comments comment letters were received in the date that ICE mailed its Proxy received will be posted without change; response to the proposals. This order Materials for the previous year’s annual the Commission does not edit personal approves the proposed rule changes. meeting.9 In proposed Section 2.15, the identifying information from Exchanges propose to set forth in the II. Description of the Proposed Rule submissions. You should submit only Changes Bylaws the specific information that information that you wish to make would be needed to be included in the available publicly. All submissions The Exchanges propose to amend and Nomination Notice. The following should refer to File Number SR- restate the Bylaws to add a new Section information is required for the BatsEDGX–2016–13, and should be 2.15 that would, subject to a number of Nomination Notice: requirements, permit stockholders to submitted on or before June 2, 2016. • A Schedule 14N 10 (or any nominate director nominees for election successor form) relating to the For the Commission, by the Division of to the Board of Directors of ICE Trading and Markets, pursuant to delegated nomination, completed and filed with (‘‘Board’’) and require ICE to include authority.14 the Commission; 11 such director nominations in its proxy Robert W. Errett, • materials for the next annual meeting of a written notice of the Deputy Secretary. stockholders (‘‘Proxy Materials’’). The nomination 12 containing a statement in [FR Doc. 2016–11155 Filed 5–11–16; 8:45 am] Exchanges further propose to amend support of the nominee’s election to the BILLING CODE 8011–01–P certain advance notice provisions in Board, if desired, as well as the Section 2.13 of the Bylaws to account following representations and for the implementation of proxy access warranties by each nominating SECURITIES AND EXCHANGE in proposed Section 2.15.5 stockholder: COMMISSION Æ Proposed Section 2.15 of the Bylaws That the nominating stockholder did not acquire, and is not holding, Release No. 34–77782; File Nos. SR–NYSE– Proposed Section 2.15 of the Bylaws securities of ICE for the purpose or with 2016–14; SR–NYSEArca–2016–25; SR– would enable an individual stockholder, the effect of influencing or changing NYSEMKT–2016–20] or a group of up to 20 stockholders, to control of ICE; nominate director nominees for the Æ that the nominee’s candidacy or, if Self-Regulatory Organizations; New Board and have them included in the elected, membership on the Board York Stock Exchange LLC; NYSE Arca, Proxy Materials, so long as such would not violate applicable state or Inc.; NYSE MKT LLC; Order Approving stockholder or stockholders have federal law or the rules of the principal Proposed Rule Change Amending and collectively owned at least three percent national securities exchange on which Restating the Fifth Amended and of ICE’s outstanding shares of common ICE’s securities are traded; Restated Bylaws of the Exchanges’ stock continuously for at least three Æ Ultimate Parent Company, years.6 No stockholder would be that the nominee does not have any Intercontinental Exchange, Inc., To permitted to participate in more than direct or indirect relationship with ICE Implement Proxy Access one group, and any stockholder that will cause the nominee to be appearing as a member of more than one deemed not independent under the May 6, 2016. group would be counted as a member of Board’s Independence Policy; 13 I. Introduction the group with the largest ownership Æ that the nominee qualifies as position.7 Notwithstanding the independent under the rules of the On March 2, 2016, each of the New foregoing, a stockholder whose nominee principal national securities exchange York Stock Exchange LLC (‘‘NYSE’’), is elected to the Board at an annual on which ICE’s common stock is traded NYSE Arca, Inc. (‘‘NYSE Arca’’) and meeting under proposed Section 2.15 and meets that exchange’s audit NYSE MKT LLC (‘‘NYSE MKT’’ and, would not be eligible to nominate together with NYSE and NYSE Arca, another candidate for the next two 9 ‘‘Exchanges’’) filed with the Securities Id. at 2.15(d). If an annual meeting is not annual meetings.8 scheduled to be held within a period that and Exchange Commission In order to nominate a director commences 30 days before and ends 30 days after (‘‘Commission’’) pursuant to Section nominee to be included in the Proxy the anniversary date, the nominating stockholder would be required to submit the Nomination Notice 19(b)(1) of the Securities Exchange Act Materials under proposed Section 2.15, 1 by the later of the close of business 120 days prior of 1934 (‘‘Act’’) and Rule 19b–4 a stockholder would need to submit a to the date of such annual meeting or the tenth day 2 thereunder, a proposed rule change to notice (‘‘Nomination Notice’’) to the following the first public disclosure of the annual amend and restate the Fifth Amended Secretary of ICE, no earlier than the meeting date. Id. and Restated Bylaws (‘‘Bylaws’’) of the close of business 150 calendar days, and 10 17 CFR 240.14n–101. 11 Exchanges’ ultimate parent company, no later than the close of business 120 Proposed Section 2.15(d)(i). Intercontinental Exchange, Inc. 12 Id. at 2.15(d)(ii). The written notice would need 3 to include certain information that is required for (‘‘ICE’’), to implement proxy access. 4 See Securities Exchange Act Release Nos. 77384 the nomination of directors by Section 2.13(b) of the The proposed rule changes were (Mar. 17, 2016), 81 FR 15371 (Mar. 22, 2016) (SR– Bylaws and details regarding any relationship in the published for comment in the Federal NYSE–2016–14); 77385 (Mar. 17, 2016), 81 FR past three years that would have been described by 15378 (Mar. 22, 2016) (SR–NYSEArca–2016–25); Item 6(e) of Schedule 14N if that relationship had and 77386 (Mar. 17, 2016), 81 FR 15366 (Mar. 22, existed on the date of submission of the Schedule 14 17 CFR 200.30–3(a)(12). 2016) (SR–NYSEMKT–2016–20) (collectively, 14N. Id. at 2.15(d)(ii)(A) and (B). In the case of a 1 15 U.S.C. 78s(b)(1). ‘‘Notices’’). nomination by a group, the notice would also need 2 17 CFR 240.19b–4. 5 See Notices, supra note 4, for a more detailed to include the designation by all group members of 3 ICE owns 100% of the equity interest in description of the proposed amendments. one group member authorized to act on behalf of Intercontinental Exchange Holdings, Inc., which in 6 Proposed Section 2.15(c)(i)–(iii). Shares may be all group members with respect to matters relating turn owns 100% of the equity interest in NYSE counted as ‘‘owned’’ only where a stockholder to the nomination, including withdrawal of the Holdings LLC. NYSE Holdings LLC owns 100% of possesses both the full voting and investment rights nomination. Id. at 2.15(d)(ii)(K). the equity interest of NYSE Group, Inc., which pertaining to the shares, as well as the full 13 The Board’s current Independence Policy can owns 100% of the equity interest of each of the economic interest in such shares. Id. at 2.15(c)(iv). be found at: http://ir.theice.com/∼/media/Files/I/ Exchanges. ICE is a publicly traded company listed 7 Id. at 2.15(c)(v). Ice-IR/documents/corporate-governance- on the NYSE. 8 Id. at 2.15(c)(i). documents/board-independence-policy.pdf.

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committee independence Æ to indemnify ICE and its directors, including: (1) The name of the nominee requirements; 14 officers, and employees against any (which must also be included on ICE’s Æ that the nominee is a ‘‘non- liability incurred in connection with form of proxy and ballot), (2) certain employee director’’ for the purposes of any action, suit, or proceeding relating disclosures regarding the director Rule 16b-3 under the Exchange Act,15 is to a failure or alleged failure of the nominee and each nominating an ‘‘outside director’’ for purposes of nominating stockholder or its nominees stockholder that are required by the Section 162(m) of the Internal Revenue to comply with, or a breach or alleged Commission or other applicable law to Code,16 and is not and has not been breach of, its respective obligations, be included in the Proxy Materials, (3) subject to any event specified in Rule agreements, or representations under a statement in support of the nominee’s 506(d)(1) of Regulation D under the proposed Section 2.15; and election to the Board included in the Securities Act of 1933 17 or Item 401(f) Æ to promptly notify ICE and any Nomination Notice, subject to of Regulation S–K under the Exchange other recipients of communications by compliance with Section 14 of the Act; 18 the nominating stockholder in Exchange Act 23 and the rules Æ that the nominating stockholder connection with the nomination or thereunder, and (4) any other satisfies the eligibility requirements set election of a director nominee if (1) any information that ICE or the Board forth in proposed Section 2.15 of the information included in such determines,24 in its discretion, to Bylaws and intends to continue to communications or in the Nomination include in the Proxy Materials relating satisfy such requirements through the Notice ceases to be true and accurate in to the nomination of the nominee, date of the annual meeting; and all material respects or a material fact including any statement in opposition Æ that the nominating stockholder necessary to make a statement not to the nomination.25 will not engage in a ‘‘solicitation’’ misleading has been omitted or (2) the Notwithstanding the foregoing, ICE within the meaning of Rule 14a–1(l) nominating stockholder has failed to may omit from the Proxy Materials, or 19 under the Exchange Act in support of continue to satisfy the eligibility may supplement or correct, any the election of any individual as a requirements described in proposed information, including all or any director at the applicable annual Section 2.15(c); and portion of the statement in support of meeting, other than its nominee(s) or • an executed agreement,21 by the the nominee included in the any nominee of the Board of Directors nominee: Nomination Notice, if the Board and will not use any proxy card other Æ to provide to ICE such other determines that: (1) Such information is than ICE’s proxy card in soliciting information and certifications, not true in all material respects or omits stockholders in connection with the including completion of ICE’s director a material statement necessary to make election of its nominee. questionnaire, as it may reasonably the statements made not misleading; (2) • 20 an executed agreement, pursuant request; such information directly or indirectly to which each nominating stockholder Æ that the nominee has read and impugns the character, integrity, or agrees: personal reputation of, or directly or Æ agrees, if elected, to serve as a member To comply with all applicable laws, of the Board and to adhere to ICE’s indirectly makes charges concerning rules and regulations in connection with Corporate Governance Guidelines and improper, illegal, or immoral conduct or the nomination, solicitation, and Global Code of Business Conduct and associations, without factual election of a nominee; any other policies and guidelines foundation, with respect to, any person; Æ to file any written solicitation or applicable to directors; and or (3) the inclusion of such information other communication with ICE Æ that the nominee is not and will not in the Proxy Materials would otherwise stockholders relating to ICE directors, become a party to any (i) undisclosed violate the federal proxy rules or any director nominees, or the nominating financial agreement or arrangement with other applicable law, rule or stockholder’s nominee with the any person or entity other than ICE in regulation.26 ICE may solicit against, Commission; connection with his or her service or and include in the Proxy Materials its Æ to assume all liability stemming action as a director of ICE, (ii) own statement relating to, any from an action, suit, or proceeding nominee.27 relating to any actual or alleged legal or undisclosed agreement or arrangement with any person or entity as to how the Under the proposal, there is a limit to regulatory violations arising out of any the number of director nominees communication by the nominating nominee would vote or act on any issue or question as a director of ICE; or (iii) submitted pursuant to proposed Section stockholder or its nominee in 2.15 that may be included in the Proxy connection with the nomination or voting commitment that could reasonably be expected to interfere with Materials. Specifically, ICE would not election of directors, including the be required to include in the Proxy Nomination Notice; the nominee’s ability to comply, if elected, with his or her fiduciary duties Materials more nominees submitted under applicable law. pursuant to proposed Section 2.15 than 14 The NYSE is the principal market for ICE’s that number of directors constituting common stock. Its independent director standards If so requested in the relevant are set forth in NYSE’s Listed Company Manual in Nomination Notice, and subject to the twenty percent of the total number of Sections 303A.00, 303A.01 and 303A.02, and its requirements set forth in proposed directors of the Board (rounded down to audit committee independence requirements are set Section 2.15,22 ICE must include in its the nearest whole number, but not less forth in NYSE’s Listed Company Manual under Sections 303A.06 and 303A.07. Proxy Materials information regarding a 23 15 U.S.C. 78n. 15 17 CFR 240.16b–3. director nominee nominated for election 24 For the purposes of proposed Section 2.15, any 16 26 U.S.C. 162(m). pursuant to proposed Section 2.15, determination to be made by the Board may be 17 17 CFR 230.506(d)(1) (identifying ‘‘bad actors’’ made by the Board, a committee of the Board, or who will be disqualified from a safe harbor related 21 Id. at 2.15(d)(iv). any officer of ICE designated by the Board or a to the private offering exemption of Section 4(a)(2) 22 The chairman of any annual meeting of committee of the Board, and such determination of the Securities Act). stockholders shall have the power and duty to will be final and binding on ICE and any other 18 17 CFR 229.401(f) (requiring director nominees determine whether a nominee has been nominated person so long as made in good faith. Proposed to disclose participation in certain legal in accordance with the requirements of proposed Section 2.15(a). proceedings). Section 2.15 and, if not so nominated, shall direct 25 Id. 19 17 CFR 240.14a–1(l). and declare at the annual meeting that such 26 Id. at 2.15(e)(ii) 20 Proposed Section 2.15(d)(iii). Nominee shall not be considered. Id. at 2.15(a). 27 Id.

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than two).28 This maximum number of • the nominee was nominated for Section 6 of the Act 36 and the rules and permitted nominees would be further election to the Board pursuant to regulations thereunder applicable to a reduced by (1) the number of nominees Section 2.15 at one of ICE’s two national securities exchange.37 In that are subsequently withdrawn after preceding annual meetings of particular, the Commission finds that nomination or that the Board itself stockholders and withdrew, became the proposed rule changes are consistent decides to nominate for election and (2) ineligible, or failed to receive 20% of with the requirements of Section 6(b)(5) the number of incumbent directors, if the vote; of the Act, which requires, among other any, who were nominated pursuant to • the nominee has been, within the things, that an exchange’s rules be proposed Section 2.15 at the preceding past three years an officer or director of designed to prevent fraudulent and annual meeting and whose re-election is a competitor or is a U.S. Disqualified manipulative acts and practices, to recommended by the Board.29 Thus, the Person as defined in ICE’s certificate of promote just and equitable principles of maximum number of nominees incorporation; trade, to remove impediments to and permitted pursuant to proposed Section • ICE is notified, or the Board perfect the mechanism of a free and 2.15 in any given year could be fewer determines, that: (i) A nominating open market and a national market than two.30 Where the number of stockholder has failed to continue to system, and, in general, to protect nominees submitted pursuant to satisfy the eligibility requirements of investors and the public interest.38 proposed Section 2.15 exceeds the proposed Section 2.15; (ii) any of the A shareholder who wishes to maximum number permitted, each representations and warranties made in nominate his or her own candidate for nominating stockholder—in order of the Nomination Notice cease to be true director may initiate a proxy contest in ownership position, largest to and accurate in all material respects (or order to solicit proxies from fellow smallest—would select a director omit a material fact necessary to make shareholders, but doing so requires the nominee until the maximum number of the statements made not misleading); preparation and dissemination of nominees is reached.31 (iii) the nominee becomes unwilling or separate proxy materials and entails Proposed Section 2.15 would allow unable to serve on the Board, or (iv) the substantial cost. Proposed Section 2.15 the Board to disregard director nominee or nominating stockholder of the Bylaws provides ICE shareholders nominations submitted pursuant to materially violate or breach the an alternative path for having their proposed Section 2.15 in certain obligations, agreements, representations, nominees considered through the proxy circumstances. If the Board determines or warranties made under proposed process. This proposed rule change is that a nominee or nominating Section 2.15; or intended to respond to a request made stockholder no longer satisfies the • ICE receives a notice under Section by ICE shareholders regarding proxy eligibility requirements, a nominating 2.13 that a stockholder intends to access.39 stockholder withdraws its nomination, nominate a candidate for director at the The Exchanges state that the proposal, or a nominee is unwilling or unable to annual meeting.33 by providing a process for certain serve as a director, the Board may stockholders to nominate directors to be Amendments to Section 2.13 of the included in the Proxy Materials,40 disregard the nomination and ICE Bylaws would not be required to include the should help to strengthen the corporate nominee in the Proxy Materials and Currently, Section 2.13 of the Bylaws governance of ICE and foster could affirmatively inform stockholders sets forth a process by which ICE accountability to ICE’s stockholders, that the nominee would not be voted on stockholders may nominate directors at thereby protecting investors and the at the annual meeting.32 their annual and special meetings, public interest.41 The Commission In addition, the proposal permits ICE including certain advance notice believes that the proposal to provide a to omit nominees submitted pursuant to requirements.34 The Exchanges propose process for shareholder proxy access in proposed Section 2.15 from the Proxy to amend the advance notice provisions the Bylaws of ICE, the ultimate parent Materials (and to prohibit any vote on in Section 2.13 to address the company of the Exchanges, should help such nominee) in the following application of those provisions to to provide the stockholders of ICE that situations: stockholder nominations submitted meet the stated requirements of • The nominating stockholder(s) (or under the proxy access provision in proposed Section 2.15 with an representatives thereof) fail to present proposed Section 2.15. The proposed the nomination at the annual meeting or amendments would require director 36 15 U.S.C. 78f(b). withdraw the nomination; nominations submitted by stockholders 37 In approving these proposed rule changes, the • the Board determines that the pursuant to proposed Section 2.15 to be Commission has considered the proposed rules’ impact on efficiency, competition, and capital nomination or election of the nominee specified in the notice of annual formation. See 15 U.S.C. 78c(f). would result in ICE violating or failing meeting given by the Board, but they 38 15 U.S.C. 78f(b)(5). to be in compliance with its certificate would exempt such nominations from 39 In November 2015, the Comptroller of the City of incorporation, the Bylaws, or any other timing and notice requirements set of New York, on behalf of certain city retirement applicable law, rule or regulation to forth in Section 2.13.35 systems that are stockholders of ICE, requested that which it is subject, including any rule ICE include a proxy access proposal in its 2016 III. Discussion and Commission proxy statement. After discussions with the or regulation of the principal national Findings Comptroller’s office, ICE management determined securities exchange on which ICE’s to recommend the proposed rule changes to the securities are traded; After careful review, the Commission Board and, on that basis, the Comptroller’s request finds that the proposed rule changes are was withdrawn. See Notices, supra note 4, at 81 FR 15374, 15382, and 15370, respectively. 28 consistent with the requirements of Id. at 2.15(b)(i). 40 As discussed above, however, the number of 29 Id. permitted director nominees under Section 2.15 30 See Notices, supra note 4, at 81 FR 15372, 33 Id. at 2.15(e)(i). may constitute less than twenty percent of the 15379, and 15367, respectively. 34 See Bylaws, Section 2.13. number of directors currently serving on the Board 31 Proposed Section 2.15(b)(ii). 35 Proposed Section 2.13(b). The Exchanges have under certain circumstances and could be less than 32 Id. at 2.15(b)(ii). See also infra note 33 and also proposed to amend Section 2.13(d) to clarify two nominees. See supra notes 28–30 and accompanying text (permitting the Board to omit that the definition of ‘‘publicly announced or accompanying text; Proposed Section 2.15(b)(i). stockholder nominees from the Proxy Materials in disclosed’’ set forth in that provision shall apply to 41 See Notices, supra note 4, at 81 FR 15371, the same circumstances). Section 2.15. Proposed Section 2.13(d). 15378, and 15367, respectively.

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alternative opportunity to exercise their The Commission notes that the including, among others, the Board’s right to nominate directors for the proposed proxy access provisions Independence Policy and exchange Board, consistent with the Exchange include safeguards to help verify that listing standards on independent Act. any director nominees submitted directors and audit committees, The proposed rule changes will pursuant to proposed Section 2.15 consistent with Section 6(b)(5) of the require ICE to include in its Proxy would qualify as independent directors Act. Based on the foregoing, the Materials information regarding a and that the nominating shareholder’s Commission finds that the proposed director nominee nominated pursuant to nomination of the nominee, and the rule changes filed by the Exchanges are proposed Section 2.15 in its Proxy nominee’s membership on the Board, if consistent with the Act. elected, would not violate any Materials, including disclosures V. Conclusion regarding the nominee and nominating applicable laws, rules or regulations of stockholder(s), any statement in support any government entity or relevant self- It is therefore ordered, pursuant to of the nominee provided by the regulatory organization. Specifically, the Section 19(b)(2) of the Act,46 that the nominating stockholder(s), and any nominating stockholder must represent proposed rule changes (SR–NYSE– other information that ICE or the Board and warrant, among other things, that: 2016–14, SR–NYSEArca–2016–25, SR– determines to include relating to the (i) The nominee’s candidacy or, if NYSEMKT–20), be, and hereby are, nomination. The Commission believes elected, membership on the Board approved. that the provision of such information would not violate applicable state or For the Commission, by the Division of could help stockholders to assess federal law or the rules of the principal Trading and Markets, pursuant to delegated whether a nominee submitted pursuant national securities exchange on which authority.47 to proposed Section 2.15 possesses the ICE’s securities are traded; (ii) the Robert W. Errett, necessary qualifications and experience nominee does not have any direct or Deputy Secretary. to serve as a director. indirect relationship with ICE that will [FR Doc. 2016–11178 Filed 5–11–16; 8:45 am] cause the nominee to be deemed not The proposed rule changes limit the BILLING CODE 8011–01–P availability of proxy access in certain independent under the Board’s 43 circumstances. For example, in order to Independence Policy; and (iii) the be eligible to submit a nomination to be nominee qualifies as independent under SECURITIES AND EXCHANGE included in the Proxy Materials the rules of the principal national COMMISSION pursuant to proposed Section 2.15, a securities exchange on which ICE’s common stock is traded and meets that [Release No. 34–77777; File No. SR–MIAX– shareholder (or group of shareholders) is 2016–09] required to own at least three percent of exchange’s audit committee independence requirements.44 In ICE’s outstanding shares of common Self-Regulatory Organizations; Miami addition, each nominating stockholder stock continuously for at least three International Securities Exchange LLC; is required to provide an executed years. Furthermore, a shareholder may Notice of Filing and Immediate agreement, pursuant to which he or she not nominate a director to be included Effectiveness of a Proposed Rule agrees to comply with all applicable in the Proxy Materials pursuant to Change To Amend Its Fee Schedule laws, rules and regulations in proposed Section 2.15 if he or she is connection with the nomination, holding ICE’s securities with the intent May 6, 2016. solicitation, and election of a nominee. of effecting a change of control of ICE. Pursuant to the provisions of Section The nominee is also required to provide The proposed rule changes also 19(b)(1) of the Securities Exchange Act an executed agreement, pursuant to 1 generally would limit the number of of 1934 (‘‘Act’’), and Rule 19b–4 which: (i) If elected, the nominee agrees 2 director nominees submitted pursuant thereunder, notice is hereby given that to adhere to ICE’s Corporate Governance to proposed Section 2.15 that may be on April 26, 2016, Miami International Guidelines and Global Code of Business included in the Proxy Materials to Securities Exchange LLC (‘‘MIAX’’ or Conduct and any other policies and twenty percent of the total number of ‘‘Exchange’’) filed with the Securities guidelines applicable to directors; and and Exchange Commission directors of the Board. The proposed (ii) the nominee agrees that he or she is rule changes would allow ICE to (‘‘Commission’’) a proposed rule change not and will not become party to certain as described in Items I, II, and III below, disregard or omit nominees submitted financial or voting arrangements that pursuant to proposed Section 2.15 from which Items have been prepared by the may present conflicts of interest or Exchange. The Commission is the Proxy Materials in certain interfere with the nominee’s ability to circumstances, including if the Board publishing this notice to solicit comply, if elected, with his or her comments on the proposed rule change determines that the nomination or 45 fiduciary duties under applicable law. from interested persons. election of the nominee would result in The Commission notes that the ICE violating or failing to be in safeguards and limitations described I. Self-Regulatory Organization’s compliance with its governing above should help to ensure ICE can Statement of the Terms of Substance of documents or any applicable law, rule comply with its bylaws and any the Proposed Rule Change or regulation to which it is subject.42 applicable laws, rules, regulations, The Exchange is filing a proposal to The Commission notes that such amend the MIAX Options Fee Schedule limitations on proxy access seem 43 See also id. (permitting ICE to omit from its (the ‘‘Fee Schedule’’). designed to balance the ability of ICE Proxy Materials any nominee submitted pursuant to proposed Section 2.15 if the Board determines that The text of the proposed rule change shareholders to participate more fully in is available on the Exchange’s Web site the nomination and election process nomination or election of that nominee to the Board would cause ICE to violate or fail to be in at http://www.miaxoptions.com/filter/ against the potential cost and practical compliance with its Bylaws, its certificate of wotitle/rule_filing, at MIAX’s principal difficulties of requiring inclusion of incorporation, or any applicable law, rule or shareholder nominations in proxy regulation, including any rules or regulations of the principal national securities exchange on which 46 15 U.S.C. 78s(b)(2). materials. ICE’s common stock is traded). 47 17 CFR 200.30–3(a)(12). 44 See supra notes 12–19 and accompanying text. 1 15 U.S.C. 78s(b)(1). 42 See, e.g., Proposed Section 2.15(e)(i)(C). 45 See supra notes 20–21 and accompanying text. 2 17 CFR 240.19b–4.

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office, and at the Commission’s Public schedule) 5 listed on MIAX of 0.00% to will use 0.03% as that Member’s Reference Room. 0.50% in a given month, unless the Baseline Percentage, as described below. Priority Customer contracts executed in A Member that qualifies to receive the II. Self-Regulatory Organization’s Tier 1 are the result of a PRIME 6 proposed PRCP [sic] Tier 1 rebate will Statement of the Purpose of, and Agency Order, which receive a rebate of be known as a ‘‘Qualifying Member,’’ Statutory Basis for, the Proposed Rule $0.10 per contract. which is a Member or its affiliates of at Change In order to provide incentive for order least 75% common ownership between In its filing with the Commission, the flow providers to increase the volume of the firms as reflected on each firm’s Exchange included statements Professional 7 orders they submit to the Form BD, Schedule A, that qualifies for concerning the purpose of and basis for Exchange, and to send additional the Professional Rebate Program and the proposed rule change and discussed Priority Customer order flow as well, achieves a volume increase in excess of any comments it received on the the Exchange proposes to offer the $0.03 0.065% over the applicable Baseline proposed rule change. The text of these per contract credit for Priority Customer Percentage for Professional orders statements may be examined at the contracts executed in Tier 1 of the PRCP transmitted by that Member which are places specified in Item IV below. The [sic] program to Members that achieve executed electronically on the Exchange Exchange has prepared summaries, set certain volume increases in the in all multiply-listed option classes for forth in sections A, B, and C below, of Professional Rebate Program. the account(s) of a Professional and the most significant aspects of such Specifically, the Exchange proposes to which qualify for the Professional statements. provide a rebate of $0.03 per Priority Rebate Program during a particular Customer contract executed in Tier 1 of month, relative to the appropriate A. Self-Regulatory Organization’s the PRCP [sic] in a given month to Baseline Percentage (described below). Statement of the Purpose of, and Members that execute a certain number The Exchange will aggregate the Statutory Basis for, the Proposed Rule of contracts in that month for the contracts resulting from orders of a Change account(s) of a Professional and which Qualifying Member transmitted and 1. Purpose qualify for the Professional Rebate executed electronically on the Exchange Program described in Section (1)(a)(iv) from affiliated Members of the The Exchange proposes to amend its of the Fee Schedule. Qualifying Member, provided there is at Fee Schedule to: (i) Offer to each In order to qualify for the proposed least 75% common ownership between Qualifying Member (as defined below) a monthly PRCP [sic] Tier 1 rebate, a the firms as reflected on each firm’s rebate of $0.03 per contract executed Member must execute an increased Form BD, Schedule A. within Tier 1 of the Priority Customer percentage of contracts on MIAX in that The Exchange also proposes to 3 Rebate Program (the ‘‘PCRP’’), and (ii) same month for the account(s) of a establish a new ‘‘Baseline Percentage’’ amend the definition of ‘‘Baseline Professional (not including mini- for Members who did not execute Percentage’’ under the Professional options, Non-Priority Customer-to-Non- contracts for the account(s) of a Rebate Program. The Exchange is also Priority Customer Orders, QCC Orders, Professional during the fourth quarter of proposing a technical clarifying PRIME Orders, PRIME AOC Responses, 2015 in order to permit such Members amendment to the Fee Schedule, as PRIME Contra-side Orders, and to benefit from all of the rebates offered described below. executions related to contracts that are under the Professional Rebate Program. The Exchange proposes to amend routed to one or more exchanges in Currently, the Professional Rebate Section (1)(a)(iii) of the Fee Schedule to connection with the Options Order Program affords a per contract credit offer a $0.03 rebate per contract Protection and Locked/Crossed Market based upon the increase in the total executed within Tier 1 of the PCRP to Plan referenced in MIAX Rule 1400 volume submitted by a Member and each ‘‘Qualifying Member,’’ as defined (collectively, for purposes of the executed for the account(s) of a below. Tier 1 of the PRCP [sic] currently Professional Rebate Program, ‘‘Excluded Professional on MIAX (not including offers no per contract credits to Contracts’’)) by greater than 0.065% of Excluded Contracts) during a particular Members that execute a number of the number of contracts executed by the month as a percentage of the total 4 Priority Customer contracts as a Member for the account(s) of a volume reported by (OCC) in MIAX percentage of national customer volume Professional during the fourth quarter of classes during the same month (the in multiply-listed options classes (with 2015 as a percentage of the total volume ‘‘Current Percentage’’), less the total certain exclusions detailed in the Fee reported by the Options Clearing volume submitted by that Member and Corporation (‘‘OCC’’) in MIAX classes executed for the account(s) of a 3 Under the PRCP [sic], MIAX credits each during the fourth quarter of 2015 (the Professional on MIAX (not including Member the per contract amount resulting from Excluded Contracts) during the fourth each Priority Customer order transmitted by that ‘‘Baseline Percentage’’). For the purpose Member which is executed electronically on the of establishing a Baseline Percentage for quarter of 2015 as a percentage of the Exchange in all multiply-listed option classes any Member for whom no fourth quarter total volume reported by OCC in MIAX (excluding QCC Orders, mini-options, Priority 2015 Baseline Percentage exists, MIAX classes during the fourth quarter of 2015 Customer-to-Priority Customer Orders, PRIME AOC (the ‘‘Baseline Percentage’’). The Responses, PRIME Contra-side Orders, PRIME Exchange proposes to define a Baseline Orders for which both the Agency and Contra-side 5 See supra note 3. Order are Priority Customers, and executions 6 The MIAX Price Improvement Mechanism Percentage for Members who did not related to contracts that are routed to one or more (‘‘PRIME’’) is a price improvement auction under execute contracts for the account(s) of a exchanges in connection with the Options Order which the Initiating Member electronically submits Professional during the fourth quarter of Protection and Locked/Crossed Market Plan an order that it represents as agent (an ‘‘Agency 2015. For such Members (with respect referenced in MIAX Rule 1400), provided the Order’’) into a PRIME Auction (‘‘Auction’’), which Member meets certain percentage thresholds in a the Initiating Member is willing to match as to all available rebates in the month as described in the Priority Customer Rebate principal, the price and size of responses in the Professional Rebate Program), the Program table. See Fee Schedule, Section (1)(a)(iii). Auction at a single price or up to an optional ‘‘Baseline Percentage’’ will be .03%. 4 The term ‘‘Priority Customer’’ means a person designated limit price. See Exchange Rule 515A. The purpose of the proposed rule or entity that (i) is not a broker or dealer in 7 A ‘‘Professional’’ is a (i) Public Customer that is securities, and (ii) does not place more than 390 not a Priority Customer; (ii) Non-MIAX Market change is to encourage Members to orders in listed options per day on average during Maker; (iii) Non-Member Broker-Dealer; or (iv) direct an increased level of Professional a calendar month for its own beneficial account(s). Firm. See Fee Schedule, Section (1)(a)(iv). contract volume to the Exchange by

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offering to provide such Members with Exchange in order to receive the per and improve competition on the an additional, concurrent incentive to contract credit for achieving Tier 1 Exchange. direct Priority Customer order flow to volume in contracts executed for The Exchange notes that it operates in the Exchange. The Exchange believes Priority Customers. The Exchange thus a highly competitive market in which that increased Professional and Priority believes that the proposed new rebate market participants can readily favor Customer volume will attract more should improve market quality for all competing venues if they deem fee liquidity to the Exchange, which market participants by providing more levels at a particular venue to be benefits all market participants. execution opportunities. All Qualifying excessive. In such an environment, the Increased Professional and Priority Members will receive the same rebate Exchange must continually adjust its Customer order flow should attract for Priority Customer contracts executed fees and rebates to remain competitive professional liquidity providers (Market in PRCP [sic] Tier 1. with other exchanges and to attract Makers), which in turn should make the The Exchange believes that the order flow to the Exchange. The MIAX marketplace an attractive venue proposal to amend the definition of Exchange believes that the proposed where Market Makers will submit Baseline Percentage is fair, equitable rule change reflects this competitive narrow quotations with greater size, and not unreasonably discriminatory. environment because it adds new deepening and enhancing the quality of The Exchange believes that the rebates and thus encourages market the MIAX marketplace. This should proposed definition of Baseline participants to direct both their provide more trading opportunities and Percentage should provide an equal Professional and Priority Customer tighter spreads for other market opportunity, and a beginning measuring order flow to the Exchange. Given the participants and result in a percentage, for all Members that did not robust competition for volume among corresponding increase in order flow have a Baseline Percentage for the options markets, many of which offer from such other market participants. fourth quarter of 2015 to submit the same products, enhancing the The Exchange is also proposing a Professional order flow and thus existing volume-based PCRP and minor technical amendment to Section become Qualifying Members for the Tier Professional Rebate Programs to attract (1)(a)(iii) of the Fee Schedule to refer 1 Priority Customer contract rebate. This order flow is consistent with the goals specifically to ‘‘The Priority Customer should in turn increase order flow, of the Act. The Exchange believes that rebate’’ payment instead of stating trading opportunities and improve the the proposal will enhance competition, ‘‘This’’ payment in the third paragraph overall depth, liquidity and quality of because market participants will have under the PRCP [sic] table. This is the market for all MIAX participants. another additional pricing consideration intended for clarity and ease of Additionally, the proposed amended in determining where to execute orders reference. definition of Baseline Percentage is and post liquidity if they factor the The credits paid out as part of the equitable and not unfairly benefits of the proposed amendments to PCRP will be drawn from the general discriminatory because it will benefit the PCRP and Professional Rebate 8 revenues of the Exchange. The Members who did not execute orders for Program into the determination. Exchange calculates volume thresholds the account(s) of a Professional in the C. Self-Regulatory Organization’s on a monthly basis. The proposed rule fourth quarter of 2015 and such Statement on Comments on the changes are to take effect May 1, 2016. Members will now be on an equal Proposed Rule Change Received From 2. Statutory Basis playing field with respect to the Members, Participants, or Others calculation of their potential increase in The Exchange believes that its Written comments were neither percentage of Professional contracts proposal to amend its Fee Schedule is solicited nor received. executed for purposes of becoming a consistent with Section 6(b) of the Act 9 Qualifying Member. III. Date of Effectiveness of the in general, and furthers the objectives of Proposed Rule Change and Timing for Section 6(b)(4) of the Act 10 in B. Self-Regulatory Organization’s Commission Action particular, in that it is an equitable Statement on Burden on Competition allocation of reasonable fees and other The foregoing rule change has become The Exchange does not believe that charges among Exchange members, and effective pursuant to Section the proposed rule change will result in issuers and other persons using its 19(b)(3)(A)(ii) of the Act,11 and Rule any burden on competition that is not facilities. 19b–4(f)(2) 12 thereunder. At any time necessary or appropriate in furtherance The Exchange believes that the within 60 days of the filing of the of the purposes of the Act. The proposal to offer the rebate under the proposed rule change, the Commission Exchange believes that the proposed PCRP to Qualifying Members is fair, summarily may temporarily suspend changes would increase both equitable and not unreasonably such rule change if it appears to the intermarket and intramarket discriminatory, because it applies Commission that such action is competition by encouraging Members to equally to all Qualifying Members. The necessary or appropriate in the public direct their Professional and Priority proposed per contract rebate for Priority interest, for the protection of investors, Customer orders to the Exchange, which Customer orders is reasonably designed or otherwise in furtherance of the should enhance the quality of quoting because it will encourage providers of purposes of the Act. If the Commission and increase the volume of contracts Professional order flow to send takes such action, the Commission shall traded on MIAX. The Exchange believes increased Professional order flow to the institute proceedings to determine that the changes to each of the PCRP whether the proposed rule should be 8 Despite providing credits under the PCRP and and the Professional Rebate Program approved or disapproved. the Professional Rebate Program, the Exchange should provide additional liquidity that represents that it will continue to have adequate enhances the quality of its markets and IV. Solicitation of Comments resources to fund its regulatory program and fulfill increases the number of trading Interested persons are invited to its responsibilities as a self-regulatory organization while each of the PCRP and the Professional Rebate opportunities on MIAX for all submit written data, views, and Program is in effect. participants, who will be able to 9 15 U.S.C. 78f(b). compete for such opportunities. This 11 15 U.S.C. 78s(b)(3)(A)(ii). 10 15 U.S.C. 78f(b)(4). should benefit all market participants 12 17 CFR 240.19b–4(f)(2).

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arguments concerning the foregoing, SOCIAL SECURITY ADMINISTRATION records. It requires Federal agencies including whether the proposed rule involved in computer matching [Docket No. SSA 2015–0060] change is consistent with the Act. programs to: Comments may be submitted by any of Privacy Act of 1974, as Amended; (1) Negotiate written agreements with the following methods: Computer Matching Program (SSA/ the other agency or agencies Department of the Treasury, the participating in the matching programs; Electronic Comments (2) Obtain approval of the matching Bureau of the Fiscal Service (Fiscal • agreement by the Data Integrity Boards Use the Commission’s Internet Service)—Match Number 1038 comment form (http://www.sec.gov/ of the participating Federal agencies; rules/sro.shtml); or AGENCY: Social Security Administration (3) Publish notice of the computer matching program in the Federal • Send an email to rule-comments@ (SSA). ACTION: Notice of a renewal of an Register; sec.gov. Please include File Number SR– (4) Furnish detailed reports about existing computer matching program MIAX–2016–09 on the subject line. matching programs to Congress and that will expire on June 25, 2016. Paper Comments OMB; SUMMARY: In accordance with the (5) Notify applicants and beneficiaries • Send paper comments in triplicate provisions of the Privacy Act, as that their records are subject to to Brent J. Fields, Secretary, Securities amended, this notice announces a matching; and and Exchange Commission, 100 F Street renewal of an existing computer (6) Verify match findings before NE., Washington, DC 20549–1090. matching program that we are currently reducing, suspending, terminating, or All submissions should refer to File conducting with Fiscal Service. denying a person’s benefits or payments. Number SR–MIAX–2016–09. This file DATES: We will file a report of the number should be included on the subject matching program with the B. SSA Computer Matches Subject to subject line if email is used. To help the Committee on Homeland Security and the Privacy Act Commission process and review your Governmental Affairs of the Senate; the comments more efficiently, please use We have taken action to ensure that Committee on Oversight and all of our computer matching programs only one method. The Commission will Government Reform of the House of comply with the requirements of the post all comments on the Commission’s Representatives; and the Office of Privacy Act, as amended. Internet Web site (http://www.sec.gov/ Information and Regulatory Affairs, rules/sro.shtml). Copies of the Office of Management and Budget Glenn Sklar, submission, all subsequent (OMB). The matching program will be Acting Executive Director, Office of Privacy amendments, all written statements effective as indicated below. and Disclosure, Office of the General Counsel. with respect to the proposed rule ADDRESSES: Interested parties may Notice of Computer Matching Program, change that are filed with the comment on this notice by either SSA With the Department of the Commission, and all written telefaxing to (410) 966–0869 or writing Treasury, the Bureau of the Fiscal communications relating to the to the Executive Director, Office of Service (Fiscal Service) proposed rule change between the Privacy and Disclosure, Office of the Commission and any person, other than A. Participating Agencies General Counsel, Social Security those that may be withheld from the Administration, 617 Altmeyer Building, SSA and Fiscal Service. public in accordance with the 6401 Security Boulevard, Baltimore, MD provisions of 5 U.S.C. 552, will be B. Purpose of the Matching Program 21235–6401. All comments received available for Web site viewing and The purpose of this matching program will be available for public inspection at printing in the Commission’s Public sets forth the terms, conditions, this address. Reference Room, 100 F Street NE., safeguards, and procedures under which Washington, DC 20549 on official FOR FURTHER INFORMATION CONTACT: The Fiscal Service will disclose savings business days between the hours of Executive Director, Office of Privacy security data to us. We will use the data 10:00 a.m. and 3:00 p.m. Copies of such and Disclosure, Office of the General to determine continued eligibility for filing also will be available for Counsel, as shown above. Supplemental Security Income (SSI) inspection and copying at the principal SUPPLEMENTARY INFORMATION: applicants and recipients, or the correct office of the Exchange. All comments A. General benefit amount for recipients and received will be posted without change; deemors who did not report or the Commission does not edit personal The Computer Matching and Privacy incorrectly reported ownership of identifying information from Protection Act of 1988 (Pub. L. 100– savings securities. submissions. You should submit only 503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions C. Authority for Conducting the information that you wish to make Matching Program available publicly. All submissions under which computer matching should refer to File Number SR–MIAX– involving the Federal government could The legal authority for this matching 2016–09, and should be submitted on or be performed and adding certain program is executed under the Privacy before June 2, 2016. protections for persons applying for, Act of 1974, 5 United States Code and receiving, Federal benefits. Section (U.S.C.) 552a, as amended by the For the Commission, by the Division of 7201 of the Omnibus Budget Computer Matching and Privacy Trading and Markets, pursuant to delegated Reconciliation Act of 1990 (Pub. L. 101– authority.13 Protection Act of 1988, as amended, and 508) further amended the Privacy Act the regulations and guidance Robert W. Errett, regarding protections for such persons. promulgated thereunder. Deputy Secretary. The Privacy Act, as amended, The legal authority for us to conduct [FR Doc. 2016–11152 Filed 5–11–16; 8:45 am] regulates the use of computer matching this matching program is contained in BILLING CODE 8011–01–P by Federal agencies when records in a 1631(e)(1)(B), and 1631(f) of the Social system of records are matched with Security Act (Act), (42 U.S.C. 13 17 CFR 200.30–3(a)(12). other Federal, State, or local government 1383(e)(1)(B), and 1383(f)).

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D. Categories of Records and Persons lapsed: 30 days after publication of this DATES: The Department invites the Covered by the Matching Program notice in the Federal Register and 40 public, governmental agencies, tribal The relevant SSA system of records days after notice of the matching governments, and all other interested (SOR) is ‘‘Supplemental Security program is sent to Congress and OMB. parties to provide comments on the Income Record and Special Veterans The matching program will continue for Draft EIS/EIR during the 45-day public Benefits, Social Security 18 months from the effective date and, comment period. The public comment Administration, Office of Systems, if both agencies meet certain conditions, period starts on May 12, 2016, with the Office of Disability and Supplemental it may extend for an additional 12 publication of this Federal Register Security Income Systems,’’ 60–0103, months thereafter. Notice and will end June 27, 2016. fully published on January 11, 2006 at [FR Doc. 2016–11175 Filed 5–11–16; 8:45 am] All comments received during the 71 FR 1830 and updated on December BILLING CODE 4191–02–P review period may be made public, no 10, 2007 at 72 FR 69723. The relevant matter how initially submitted. Fiscal Service SORs are Treasury/ Comments are not private and will not BPD.002, United States Savings Type DEPARTMENT OF STATE be edited to remove identifying or Securities, and Treasury/BPD.008, contact information. Commenters are [Public Notice: 9556] Retail Treasury Securities Access cautioned against including any information that they would not want Application. These SORs were last Notice of Availability of the Draft publicly disclosed. Any party soliciting published on August 17, 2011 at 76 FR Environmental Impact Report/ or aggregating comments from other 51128. Environmental Impact Statement for persons is further requested to direct The finder file we provide to Fiscal the Otay Mesa Conveyance and those persons not to include any Service will contain approximately 10 Disinfection System Project, San Diego identifying or contact information, or million records of individuals for whom County, California, Presidential Permit information they would not want we request data for the administration of Application Review the SSI program. Fiscal Service will use publicly disclosed, in their comments. files that contain approximately 185 AGENCY: Department of State. ADDRESSES: Comments on the Draft EIS/ million Social Security numbers (SSNs), ACTION: Notice of Availability, EIR may be submitted at with registration indexes, to match our solicitation of comments. www.regulations.gov by entering the records. Fiscal Service will provide a title of this Notice into the search field response record providing match results SUMMARY: The U.S. Department of State and following the prompts. Comments to us, which will contain approximately (Department) announces availability for may also be submitted by mail, 1.8 million records. public review and comment of the Draft addressed to: Otay Water Pipeline Exchanges for this computer matching Environmental Impact Report/ Project Manager, Office of program will occur twice a year, in Environmental Impact Statement for the Environmental Quality and approximately February and August. We Otay Mesa Conveyance and Disinfection Transboundary Issues (OES/EQT): Suite will furnish Fiscal Service with the SSN System Project, San Diego County, 2726, U.S. Department of State, 2201 C and name for each individual when California Presidential Permit Street NW., Washington, DC 20520. All requesting savings-securities registration Application Review (Draft EIR/EIS). This comments from agencies or information. When a match occurs on document analyzes the potential organizations should indicate a contact an SSN, Fiscal Service will disclose the environmental effects of issuing a person for the agency or organization. following to us from Treasury/BPD.002: Presidential Permit to the Otay Water FOR FURTHER INFORMATION CONTACT: a. The denomination of the security; District (District) for the construction, Project details for the Otay Water b. The serial number; connection, operation, and maintenance Pipeline project and a copy of the c. The series; of transboundary pipeline facilities for Presidential Permit application, as well d. The issue date of the security; the importation of desalinated seawater as information on the Presidential e. The current redemption value; and from Mexico to the United States in San Permit process are available on the f. The return date of the finder file. Diego County, California (Otay Water We will furnish Fiscal Service with Pipeline). The Draft EIS/EIR was following Web sites: http:// the SSN and name for each individual prepared consistent with the National www.state.gov/p/wha/rt/permit/app/ when requesting savings-securities Environmental Policy Act (NEPA) of otaypermit/index.htm and http:// registration information. The finder file 1969 (42 U.S.C. Sec. 4321, et seq.), the www.owd-desalconveyance.com/. Please will contain the SSN associated with the regulations of the Council on refer to these Web sites or contact the account and report account holdings. Environmental Quality (CEQ) (40 CFR Department at the address listed in the When a match occurs on an SSN, Fiscal 1500–1508), and the Department’s ADDRESSES section of this notice. Service will disclose the following to us implementing regulations (22 CFR part SUPPLEMENTARY INFORMATION: Executive from Treasury/BPD.008: 161), and pursuant to the California Order 11423, as amended, delegates to a. The purchase amount; Environmental Quality Act (CEQA) of the Secretary of State the President’s b. The account number and 1970. It evaluates the potential authority to receive applications for confirmation number; environmental impacts of issuing a permits for the construction, c. The series; Presidential Permit to the District to connection, operation, or maintenance d. The issue date of the security; construct, connect, operate, and of certain facilities at the borders of the e. The current redemption value; and maintain an approximately four-mile- United States, and to issue or deny such f. The return date of the finder file. long, 48- to 54-inch-diameter potable Presidential Permits upon a national water pipeline, and a metering station as interest determination. To make this E. Inclusive Dates of the Matching well as a possible pump station and determination, the Department Program disinfection facility within the Otay considers many factors, including The effective date of this matching Mesa area of the County of San Diego, foreign policy; environmental, cultural program is June 26, 2016, provided that just north of the United States-Mexico and economic impacts; and compliance the following notice periods have border. with applicable law and policy.

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In November 2013, the District otaypermit/index.htm and http:// 2011, and to the extent permitted by submitted an application to the www.owd-desalconveyance.com/. law, I hereby re-delegate to the Deputy Assistant Secretary for Policy and Department for a Presidential Permit Deborah Klepp, authorizing the construction, Evaluation, Bureau of Educational and Director, Office of Environmental Quality and Cultural Affairs, the functions in section connection, operation, and maintenance Transboundary Issues, Department of State. 102 of the Mutual Educational and of a cross-border water pipeline facility [FR Doc. 2016–11282 Filed 5–11–16; 8:45 am] for the proposed project, which would Cultural Exchange Act of 1961, as BILLING CODE 4710–09–P convey desalinated seawater from amended (22 U.S.C. 2452) relating to the Mexico to the District’s Roll Reservoir in provision by grant, contract or otherwise for a wide variety of educational and San Diego County, which is DEPARTMENT OF STATE approximately four miles northeast of cultural exchanges. [Delegation of Authority No. 394] the border. This Delegation of Authority does not supersede or otherwise affect any other Designation of the Department of State The proposed Mexican desalination delegation of authority currently in Representative to the Administrative plant (not a part of the proposed project) effect. The functions and authorities re- Conference of the United States is envisioned to produce 100 million delegated herein may not be further gallons per day (MGD) of desalinated By virtue of the authority vested in delegated without my approval. sea water. The District intends to the Secretary of State, including Section Any reference in this Delegation of initially purchase approximately 20–25 1 of the State Department Basic Authority to any statute or delegation of MGD of desalinated sea water, and Authorities Act, as amended (22 U.S.C. authority shall be deemed to be a ultimately increase the amount to 50 2651a), and 5 U.S.C. 593, and delegated reference to such statute or delegation of MGD. Due to seasonal variation in pursuant to Delegation of Authority 198, authority as amended from time to time. demand, the District anticipates that 10 dated September 16, 1992, and to the This Delegation of Authority shall be MGD would be conveyed in the winter extent authorized by law, I hereby published in the Federal Register. months, and up to 50 MGD would be designate the Department of State Legal Dated: March 31, 2016. conveyed during peak demand periods Adviser as the Department of State in the summer months. Numerous government representative to the Evan Ryan, alignment routes for the pipeline were Administrative Conference of the Assistant Secretary for Educational and Cultural Affairs, U.S. Department of State. considered; however, after initial United States. consideration of environmental and This delegation of authority may be [FR Doc. 2016–11279 Filed 5–11–16; 8:45 am] engineering opportunities and re-delegated, to the extent authorized by BILLING CODE 4710–05–P constraints, the District, together with law. the Department, determined three Notwithstanding this delegation of authority, the Secretary, the Deputy DEPARTMENT OF STATE alternative alignments, and addressed Secretary, the Deputy Secretary for those alignments in the Draft EIR/EIS. Management and Resources, and the [Delegation of Authority No. 395] The District’s preferred alternative is Under Secretary for Management may approximately 21,810 linear feet and exercise any function or authority Delegation of Authority Under 5 U.S.C. extends from the border in a delegated by this delegation of 5376 to the Inspector General for the northwesterly direction within authority. U.S. Department of State established right-of-ways and terminates This Delegation of Authority will be on the east side of the Roll Reservoir. published in the Federal Register. By virtue of the authority vested in me as Secretary of State, including The District will be responsible for Dated: April 29, 2016. Section 1 of the Department of State approving the expenditure of public Patrick F. Kennedy, Basic Authorities Act, as amended (22 funds for the proposed project and the Under Secretary of State for Management, U.S.C. 2651a), I hereby delegate to the Department will be responsible for Department of State. Inspector General for the U.S. determining whether the proposed [FR Doc. 2016–11274 Filed 5–11–16; 8:45 am] Department of State, to the extent project serves the national interest BILLING CODE 4710–08–P authorized by law, the authority under pursuant to Executive Order 11423, and 5 U.S.C. 5376 to determine and adjust if so, issuing a Presidential Permit pay for Senior Professional positions. authorizing the construction, DEPARTMENT OF STATE This delegation of authority is not connection, operation, and maintenance [Delegation of Authority No. 236–7] intended to revoke, amend, or otherwise of the cross-border pipeline facility. affect the validity of any other Availability of the Draft EIS/EIR: Re-Delegation by the Assistant delegation of authority. Copies of the Draft EIS/EIR have been Secretary of State for Educational and Any act, executive order, regulation, distributed to state and governmental Cultural Affairs to the Deputy Assistant or procedure subject to, or affected by, agencies, tribal governments, and other Secretary for Policy and Evaluation of this delegation shall be deemed to be interested parties. Printed copies of the Authority Under Section 102 of the such act, executive order, regulation, or Mutual Educational and Cultural document may be obtained by visiting procedure as amended from time to Exchange Act of 1961, as Amended the Otay Mesa-Nestor Library in San time. Diego, California or by contacting the By virtue of the authority vested in Notwithstanding this delegation of Otay Project Manager at the above me as the Assistant Secretary of State for authority, the Secretary may at any time address. The Draft EIS/EIR is available Educational and Cultural Affairs, exercise any authority or function on these project Web sites at http:// including by Delegation of Authority delegated by this delegation of www.state.gov/p/wha/rt/permit/app/ No. 236–3, dated August 28, 2000, and authority. Section 2(e)(2) of Delegation of This delegation of authority shall be Authority No. 293–2, dated October 23, published in the Federal Register.

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Dated: April 18, 2016. By issuing this notice, the Board is Board decisions and notices are John F. Kerry, instituting an exemption proceeding available on our Web site at Secretary of State. pursuant to 49 U.S.C. 10502(b). A final ‘‘WWW.STB.DOT.GOV.’’ [FR Doc. 2016–11281 Filed 5–11–16; 8:45 am] decision will be issued by August 10, Decided: May 9, 2016. BILLING CODE 4710–42–P 2016. By the Board, Rachel D. Campbell, Any OFA under 49 CFR 1152.27(b)(2) Director, Office of Proceedings. to subsidize continued rail service will Jeffrey Herzig, SURFACE TRANSPORTATION BOARD be due by August 19, 2016, or 10 days Clearance Clerk. after service of a decision granting the [FR Doc. 2016–11189 Filed 5–11–16; 8:45 am] [Docket No. AB 290 (Sub-No. 381X)] petition for exemption, whichever BILLING CODE 4915–01–P Norfolk Southern Railway Company— occurs first. Each OFA must be Abandonment Exemption—in Hamilton accompanied by a $1,600 filing fee. See 49 CFR 1002.2(f)(25). County, Ohio DEPARTMENT OF TRANSPORTATION All interested persons should be On April 22, 2016, Norfolk Southern aware that, following abandonment, the Federal Aviation Administration Railway Company (NSR) filed with the Line may be suitable for other public Surface Transportation Board (Board) a use, including interim trail use. Any Aviation Rulemaking Advisory petition under 49 U.S.C. 10502 for request for a public use condition under Committee—New Task exemption from the prior approval 49 CFR 1152.28 or for interim trail use/ requirements of 49 U.S.C. 10903 to rail banking under 49 CFR 1152.29 will AGENCY: Federal Aviation abandon approximately 4.10 miles of be due no later than June 1, 2016. Each Administration (FAA), DOT. rail line extending from milepost CT 3.7 interim trail use request must be ACTION: Notice of a new task assignment to milepost CT 7.8 in Hamilton County, accompanied by a $300 filing fee. See 49 for the Aviation Rulemaking Advisory Ohio (the Line). The Line traverses U.S. CFR 1002.2(f)(27). However, NSR states Committee (ARAC). Postal Zip Codes 45207, 45212, 45208, that, because it seeks abandonment to SUMMARY: The FAA has assigned the 45209, 45226, and 45227. allow the City to purchase the land for Aviation Rulemaking Advisory According to NSR, no traffic has a public use, NSR is unwilling to Committee (ARAC) a new task to moved over the Line in more than five negotiate interim trail use/rail banking. years. NSR further states that there is no provide recommendations regarding the All filings in response to this notice potential for new traffic. NSR seeks to certification of persons engaged in must refer to Docket No. AB 290 (Sub- abandon the Line and sell the property operations involving the loading of No. 381X) and must be sent to: (1) to the City of Cincinnati (City) for a special cargo. Assignment of this task is Surface Transportation Board, 395 E public redevelopment project. NSR in response to National Transportation Street SW., Washington, DC 20423– states that the City is undertaking a plan Safety Board Recommendation A–15– 0001; and (2) William A Mullins, Baker that would reduce/reroute vehicular 014 which recommended that the FAA & Miller PLLC, 2401 Pennsylvania Ave. traffic, create greenways, and provide create a certification for personnel NW., Suite 300, Washington, DC 20037. alternative modal access to five major responsible for the loading, restraint, Replies to the petition are due on or development sites, including sites at and documentation of special cargo before June 1, 2016. Xavier University and near Uptown. loads on transport-category airplanes. NSR asserts that the City would take Persons seeking further information This notice informs the public of the ownership of, and assume responsibility concerning abandonment procedures new ARAC activity and solicits for, the safety and maintenance of the 10 may contact the Board’s Office of Public membership for the new Loadmaster bridges on the Line. Assistance, Governmental Affairs, and Certification Working Group. In addition to an exemption from the Compliance at (202) 245–0238 or refer FOR FURTHER INFORMATION CONTACT: provisions of 49 U.S.C. 10903, NSR also to the full abandonment or Stephen Grota Cargo Focus Team, AFS– seeks an exemption from the offer of discontinuance regulations at 49 CFR 340 Federal Aviation Administration, financial assistance (OFA) procedures of part 1152. Questions concerning 950 L’Enfant Plaza SW., 5th Floor, 49 U.S.C. 10904. In support, NSR states environmental issues may be directed to Washington, DC 20024, stephen.grota@ that the Line is needed for a public the Board’s Office of Environmental faa.gov, phone number (781) 238–7528. Analysis (OEA) at (202) 245–0305. purpose, as it is of critical significance SUPPLEMENTARY INFORMATION: to the City’s redevelopment plans. NSR Assistance for the hearing impaired is further asserts that there is no available through the Federal ARAC Acceptance of Task overriding public need for continued Information Relay Service (FIRS) at 1– As a result of its March 23, 2016, freight rail service. NSR’s request for 800–877–8339. ARAC meeting, the ARAC accepted this exemption from § 10904 will be An environmental assessment (EA) (or tasking to establish the Loadmaster addressed in the final decision. environmental impact statement (EIS), if Certification Working Group. The According to NSR, the Line does not necessary) prepared by OEA will be Loadmaster Certification Working contain federally granted rights-of-way. served upon all parties of record and Group will serve as staff to the ARAC Any documentation in NSR’s possession upon any agencies or other persons who and provide advice and will be made available promptly to commented during its preparation. recommendations on the assigned task. those requesting it. Other interested persons may contact The ARAC will review and accept the The interest of railroad employees OEA to obtain a copy of the EA (or EIS). recommendation report and will submit will be protected by the conditions set EAs in abandonment proceedings it to the FAA. forth in Oregon Short Line Railroad— normally will be made available within Abandonment Portion Goshen Branch 60 days of the filing of the petition. The Background Between Firth & Ammon, in Bingham & deadline for submission of comments on The FAA established the ARAC to Bonneville Counties, Idaho, 360 I.C.C. the EA generally will be within 30 days provide information, advice, and 91 (1979). of its service. recommendations on aviation related

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issues that could result in rulemaking to As a result of this accident, the NTSB 1. NTSB Aircraft Accident Report the FAA Administrator, through the issued Safety Recommendation A–15– NTSB/AAR–15/01 PB2015– Associate Administrator for Aviation 14 which recommended, in part, that 104951NTSB, with particular attention Safety. the FAA ‘‘[c]reate a certification for provided to Safety Recommendation A– On April 29, 2013, a Boeing 747–400 personnel responsible for the loading, 15–14. BCF operated by an air carrier restraint, and documentation of special 2. AC 120–85A, Air Cargo Operations. conducting all-cargo operations crashed cargo loads on transport-category 3. Minutes of the June 30, 2015 B747 shortly after takeoff from Bagram Air airplanes.’’ Currently, there is no Special Cargo Load Meeting. Base, Bagram, Afghanistan. The airplane certificated position for the loading of The working group may be reinstated was destroyed from impact forces and special cargo specified in the FAA’s to assist the ARAC by responding to post-crash fire. The flight was a regulations. Therefore, there are no FAA’s questions or concerns after its supplemental operation conducted specific individual standards or training recommendations have been submitted. under part 121 of Title 14, Code of requirements to ensure adherence to Schedule Federal Regulations (14 CFR) and was operational limitations. Additionally, being conducted under a multimodal there is no specific FAA oversight of The recommendation report should be contract with the US Transportation these personnel outside of that normally submitted to the FAA for review and Command. The intended destination for conducted of a certificate holder’s acceptance no later than 24 months the flight was Dubai World Central—Al operations. The FAA believes that such from the publication date of this notice Maktoum International Airport, Dubai, oversight is especially critical when in the Federal Register. United Arab Emirates. special cargo is carried in an aircraft. Working Group Activity Persons performing special cargo The airplane’s cargo included five The Loadmaster Certification Working loading functions typically prepare and mine-resistant ambush-protected Group must comply with the procedures validate the accuracy of aircraft load (MRAP) vehicles secured onto pallets adopted by the ARAC and: with shoring. Two vehicles were 12-ton manifests and ensure the aircraft is 1. Conduct a review and analysis of MRAP all-terrain vehicles (M–ATVs) loaded according to an approved the assigned tasks and any other related and three were 18-ton Cougars. These schedule that ensures the aircraft’s materials or documents. vehicles were considered special cargo center of gravity is within approved 2. Draft and submit a work plan for because they could not be placed in unit limits. Proper performance of these completion of the task, including the load devices (ULDs) and restrained in functions is critical to ensure the flight rationale supporting such a plan, for the airplane using the locking characteristics of an aircraft are not consideration by the ARAC. capabilities of the airplane’s main deck adversely affected and that its structural 3. Provide a status report at each cargo handling system. Instead, the limitations are not exceeded. ARAC meeting. vehicles were secured to centerline- The Task 4. Draft and submit the loaded floating pallets and restrained to recommendation report based on the the airplane’s main deck using tie-down The Loadmaster Certification Working review and analysis of the assigned straps. Special cargo is defined in Group is tasked to: tasks. appendix C of AC 120–85A, Air Cargo 1. Provide advice and 5. Present the recommendation report Operations, as ‘‘cargo not contained in recommendations to the ARAC on at the ARAC meeting. a ULD certified for the airplane cargo whether safety would be enhanced if loading system (CLS) or not enclosed in persons engaged in the loading and Participation in the Working Group a cargo compartment certified for bulk supervision of the loading of special The Loadmaster Certification Working loading. This type of cargo requires cargo, to include the preparation and Group will be comprised of technical special handling and securing/ accuracy of special cargo load plans, be experts having an interest in the restraining procedures.’’ certificated. If the Working Group assigned task. A working group member During takeoff, the airplane recommends certification of these need not be a member representative of immediately climbed steeply, then persons, it should also provide the ARAC. The FAA would like a wide descended in a manner consistent with recommendations regarding which range of members to ensure all aspects an aerodynamic stall. The National specific operations should require the of the tasks are considered in Transportation Safety Board (NTSB) use of these certificated persons. development of the recommendations. investigation found strong evidence that Additionally, it should also recommend The provisions of the August 13, 2014, at least one of the rear MRAP vehicles appropriate knowledge, experience, and Office of Management and Budget moved aft into the tail section of the skill requirements for the issuance of guidance, ‘‘Revised Guidance on airplane, damaging hydraulic systems the certificates and appropriate Appointment of Lobbyists to Federal and horizontal stabilizer components privileges and limitations. Advisory Committees, Boards, and and making it impossible for the 2. Determine the effect of its Commissions’’ (79 FR 47482), continues flightcrew to maintain pitch control of recommendations on impacted parties. the ban on registered lobbyists the airplane. The NTSB determined that 3. Develop a report containing participating on Agency Boards and the probable cause of this accident was recommendations based upon its Commissions if participating in their the air carrier’s inadequate procedures analysis and findings. The report should ‘‘individual capacity.’’ The revised for restraining special cargo loads, document both majority and dissenting guidance now allows registered which resulted in the loadmaster’s positions on its recommendations and lobbyists to participate on Agency improper restraint of the cargo, which findings and the rationale for each Boards and Commissions in a moved aft and damaged hydraulic position. Any disagreements should be ‘‘representative capacity’’ for the systems numbers 1 and 2 and horizontal documented, including the rationale for ‘‘express purpose of providing a stabilizer drive mechanism components, each position and the reasons for the committee with the views of a rendering the airplane uncontrollable disagreement. nongovernmental entity, a recognizable (NTSB Aircraft Accident Report NTSB/ In developing this report the Working group of persons or nongovernmental AAR–15/01 PB2015–104951). Group shall familiarize itself with: entities (an industry, sector, labor

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unions, or environmental groups, etc.) ACTION: Notice of Unified Carrier snowplows, end plates, that locomotives or state or local government’’ (For Registration Plan Board of Directors be equipped with a pilot, snowplow, or further information, see the Lobbying Meeting. end plate extending across both rails for Disclosure Act of 1995 (LDA) as 121 locomotives, 32 of which remain in amended, 2 U.S.C. 1603, 1604, and TIME AND DATE: The meeting will be held service. These locomotives are not 1605). on June 8, 2016, from 9:00 a.m. to 1:00 equipped with a pilot, snowplow, or If you wish to become a member of p.m. Eastern Daylight Time. end plate but have hose boxes or the Loadmaster Certification Working PLACE: The meetings will be open to the brackets above the rails with open space Group, contact the person listed under public at the Courtyard Providence between. UR states that these the caption FOR FURTHER INFORMATION Downtown by Marriott, 32 Exchange locomotives operate over yard and CONTACT expressing that desire. Describe Terrace at Memorial Blvd., Providence, mainline track, within and between your interest in the task and state the RI 02903, and via conference call. Those three steel mills. The total track length expertise you would bring to the not attending the meetings in person of UR is 20 miles, with three public working group. The FAA must receive may call 1–877–422–1931, passcode grade crossings (two with gates and all requests by June 13, 2016. The ARAC 2855443940, to listen and participate in flashers, one with flashers only) and and the FAA will review the requests the meetings. trains are limited to 20 mph. UR reports and advise you whether or not your STATUS: Open to the public. that there have been no known safety- request is approved. MATTERS TO BE CONSIDERED: The Unified related incidents or operating If you are chosen for membership on Carrier Registration Plan Board of difficulties associated with this waiver. the working group, you must actively Directors (the Board) will continue its A copy of the petition, as well as any participate in the working group, attend work in developing and implementing written communications concerning the all meetings, and provide written the Unified Carrier Registration Plan petition, is available for review online at comments when requested. You must and Agreement and to that end, may www.regulations.gov and in person at devote the resources necessary to consider matters properly before the the U.S. Department of Transportation’s support the working group in meeting Board. (DOT) Docket Operations Facility, 1200 any assigned deadlines. You must keep New Jersey Avenue SE., W12–140, your management and those you may FOR FURTHER INFORMATION CONTACT: Mr. Washington, DC 20590. The Docket represent advised of working group Avelino Gutierrez, Chair, Unified Operations Facility is open from 9 a.m. activities and decisions to ensure the Carrier Registration Board of Directors at to 5 p.m., Monday through Friday, proposed technical solutions do not (505) 827–4565. except Federal Holidays. conflict with the position of those you Issued on: May 6, 2016. Interested parties are invited to represent. Once the working group has Larry W. Minor, participate in these proceedings by begun deliberations, members will not Associate Administrator, Office of Policy, submitting written views, data, or be added or substituted without the Federal Motor Carrier Safety Administration. comments. FRA does not anticipate approval of the ARAC Chair, the FAA, [FR Doc. 2016–11312 Filed 5–10–16; 4:15 pm] scheduling a public hearing in including the Designated Federal BILLING CODE 4910–EX–P connection with these proceedings since Officer, and the Working Group Chair. the facts do not appear to warrant a The Secretary of Transportation hearing. If any interested party desires determined the formation and use of the DEPARTMENT OF TRANSPORTATION an opportunity for oral comment, they ARAC is necessary and in the public should notify FRA, in writing, before interest in connection with the Federal Railroad Administration the end of the comment period and performance of duties imposed on the [Docket Number FRA–2016–0046] specify the basis for their request. FAA by law. The ARAC meetings are All communications concerning these open to the public. However, meetings Petition for Waiver of Compliance proceedings should identify the of the Loadmaster Certification Working appropriate docket number and may be In accordance with part 211 of title 49 Group are not open to the public, except submitted by any of the following Code of Federal Regulations (CFR), this to the extent individuals with an methods: document provides the public notice interest and expertise are selected to • Web site: http:// that by a document dated April 28, participate. The FAA will make no www.regulations.gov. Follow the online 2016, Union Railroad (UR) petitioned public announcement of working group instructions for submitting comments. the Federal Railroad Administration • meetings. Fax: 202–493–2251. (FRA) for renewal of a waiver of • Mail: Docket Operations Facility, Issued in Washington, DC, on May 4, 2016. compliance from certain provisions of U.S. Department of Transportation, 1200 Lirio Liu, the Federal railroad safety regulations New Jersey Avenue SE., W12–140, Designated Federal Officer, Aviation contained at 49 CFR part 229—Railroad Washington, DC 20590. Rulemaking Advisory Committee. Locomotive Safety Standards. This • Hand Delivery: 1200 New Jersey [FR Doc. 2016–11104 Filed 5–11–16; 8:45 am] regulatory relief was initially granted by Avenue SE., Room W12–140, BILLING CODE 4910–13–P FRA in 1980 and is due to expire in Washington, DC 20590, between 9 a.m. 2017 under the ‘‘sunset clause’’ added and 5 p.m., Monday through Friday, to 49 CFR 229.19—Prior waivers, in except Federal Holidays. DEPARTMENT OF TRANSPORTATION 2012. This relief was formerly handled Communications received by June 27, under Docket Number LI–80–24; 2016 will be considered by FRA before Federal Motor Carrier Safety however FRA has updated the docket final action is taken. Comments received Administration numbering system and assigned this after that date will be considered as far Sunshine Act Meetings; Unified Carrier petition Docket Number FRA–2016– as practicable. Registration Plan Board of Directors 0046. Anyone is able to search the The waiver in Docket Number LI–80– electronic form of any written AGENCY: Federal Motor Carrier Safety 24 granted UR relief from the communications and comments Administration (FMCSA), DOT. requirement of 49 CFR 229.123—Pilots, received into any of our dockets by the

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name of the individual submitting the CFR 213.109(d)(4) involving all 213.7- these comments, without edit, including comment (or signing the document, if qualified persons responsible for any personal information the submitted on behalf of an association, supervision and inspection of the commenter provides, to business, labor union, etc.). In TriMet Westside Express Service track www.regulations.gov, as described in accordance with 5 U.S.C. 553(c), DOT segment; (2) conduct bi-annual walking the system of records notice (DOT/ALL– solicits comments from the public to inspections to detect noncompliant 14 FDMS), which can be reviewed at better inform its processes. DOT posts track conditions including rail seat www.dot.gov/privacy. See also http:// these comments, without edit, including deterioration; and (3) supplement www.regulations.gov/#!privacyNotice any personal information the walking inspection with twice-annual for the privacy notice of regulations.gov. commenter provides, to inspections with a hi-rail vehicle Robert C. Lauby, www.regulations.gov, as described in instrumented with a Track Geometry the system of records notice (DOT/ALL– Measurement System. Associate Administrator for Railroad Safety, Chief Safety Officer. 14 FDMS), which can be reviewed at A copy of the petition, as well as any www.dot.gov/privacy. See also http:// written communications concerning the [FR Doc. 2016–11215 Filed 5–11–16; 8:45 am] www.regulations.gov/#!privacyNotice petition, is available for review online at BILLING CODE 4910–06–P for the privacy notice of regulations.gov. www.regulations.gov and in person at the U.S. Department of Transportation’s Robert C. Lauby, (DOT) Docket Operations Facility, 1200 DEPARTMENT OF TRANSPORTATION Associate Administrator for Railroad Safety, New Jersey Avenue SE., W12–140, Federal Railroad Administration Chief Safety Officer. Washington, DC 20590. The Docket [FR Doc. 2016–11216 Filed 5–11–16; 8:45 am] Operations Facility is open from 9 a.m. [Docket Number FRA–2016–0048] BILLING CODE 4910–06–P to 5 p.m., Monday through Friday, except Federal Holidays. Notice of Application for Approval of Interested parties are invited to Discontinuance or Modification of a DEPARTMENT OF TRANSPORTATION participate in these proceedings by Railroad Signal System submitting written views, data, or Federal Railroad Administration In accordance with part 235 of Title comments. FRA does not anticipate 49 Code of Federal Regulations (CFR) [Docket Number FRA–2016–0034] scheduling a public hearing in and 49 U.S.C. 20502(a), this document connection with these proceedings since Petition for Waiver of Compliance provides the public notice that by a the facts do not appear to warrant a document dated April 27, 2016, Norfolk In accordance with part 211 of Title hearing. If any interested party desires Southern Railway (NS) petitioned the 49 of the Code of Federal Regulations an opportunity for oral comment, they Federal Railroad Administration (FRA) (CFR), this document provides the should notify FRA, in writing, before seeking approval for the discontinuance public notice that by a document dated the end of the comment period and or modification of a signal system. FRA April 8, 2016, Portland and Western specify the basis for their request. assigned the petition Docket Number All communications concerning these Railroad (PNWR), owned by Genesee & FRA–2016–0048. proceedings should identify the Wyoming, has petitioned the Federal Applicant: Norfolk Southern Railway, appropriate docket number and may be Railroad Administration (FRA) for a Mr. B. L. Sykes, Chief Engineer, C&S submitted by any of the following waiver of compliance from certain Engineering, 1200 Peachtree Street NE., methods: provisions of the Federal railroad safety • Web site: http:// Atlanta, GA 30309. regulations contained at 49 CFR www.regulations.gov. Follow the online NS seeks approval of the modification 213.234, Automated inspection of track instructions for submitting comments. of Control Point (CP) Cast East End on constructed with concrete crossties. FRA • Fax: 202–493–2251. the New Castle District, CF Main Line, assigned the petition Docket Number • Mail: Docket Operations Facility, Milepost (MP) CF 101.8 at New Castle, FRA–2016–0034. U.S. Department of Transportation, 1200 IN. PNWR requests a waiver of New Jersey Avenue SE., W12–140, CP Cast East End will be replaced compliance from 49 CFR 213.234(b)(3), Washington, DC 20590. with a hold-out signal, located at MP CF which requires an annual automated • Hand Delivery: 1200 New Jersey 102.38, and the power-operated switch inspection of track constructed with Avenue SE., Room W12–140, will be replaced with a hand-operated concrete crossties. PNWR’s proposal Washington, DC 20590, between 9 a.m. switch with an electric lock. identifies a 16.8-mile segment of track and 5 p.m., Monday through Friday, These changes are being proposed to constructed with concrete crossties and except Federal Holidays. improve operations in the area. indicates that 160 commuter trains per Communications received by June 27, A copy of the petition, as well as any week operate over it, as well as an 2016 will be considered by FRA before written communications concerning the annual 5 million gross tons of freight final action is taken. Comments received petition, is available for review online at traffic. after that date will be considered as far www.regulations.gov and in person at PNWR submits that because there is as practicable. the U.S. Department of Transportation’s relatively light wheel loading of Anyone is able to search the (DOT) Docket Operations Facility, 1200 commuter trains, which are limited to electronic form of any written New Jersey Avenue SE., W12–140, 60 mph, and freight operations, due to communications and comments Washington, DC 20590. The Docket a 40 mph speed limit, it is unnecessary received into any of our dockets by the Operations Facility is open from 9 a.m. to conduct annual automated name of the individual submitting the to 5 p.m., Monday through Friday, inspections on this concrete crosstie comment (or signing the document, if except Federal Holidays. segment. In lieu of annual automated submitted on behalf of an association, Interested parties are invited to inspection, PNWR proposes to (1) business, labor union, etc.). In participate in these proceedings by provide annual training and inspection accordance with 5 U.S.C. 553(c), DOT submitting written views, data, or procedures to identify and report solicits comments from the public to comments. FRA does not anticipate exceptions to conditions described in 49 better inform its processes. DOT posts scheduling a public hearing in

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connection with these proceedings since ACTION: Notice. application, and address the waiver the facts do not appear to warrant a criteria given in § 388.4 of MARAD’s hearing. If any interested party desires SUMMARY: As authorized by 46 U.S.C. regulations at 46 CFR part 388. an opportunity for oral comment, they 12121, the Secretary of Transportation, Privacy Act should notify FRA, in writing, before as represented by the Maritime the end of the comment period and Administration (MARAD), is authorized Anyone is able to search the specify the basis for their request. to grant waivers of the U.S.-build electronic form of all comments All communications concerning these requirement of the coastwise laws under received into any of our dockets by the proceedings should identify the certain circumstances. A request for name of the individual submitting the appropriate docket number and may be such a waiver has been received by comment (or signing the comment, if submitted by any of the following MARAD. The vessel, and a brief submitted on behalf of an association, methods: description of the proposed service, is business, labor union, etc.). You may • Web site: http:// listed below. review DOT’s complete Privacy Act www.regulations.gov. Follow the online DATES: Submit comments on or before Statement in the Federal Register instructions for submitting comments. June 13, 2016. published on April 11, 2000 (Volume • Fax: 202–493–2251. ADDRESSES: 65, Number 70; Pages 19477–78). • Comments should refer to Mail: Docket Operations Facility, docket number MARAD–2016–0044. U.S. Department of Transportation, 1200 By Order of the Maritime Administrator. Written comments may be submitted by Dated: April 28, 2016. New Jersey Avenue SE., W12–140, hand or by mail to the Docket Clerk, T. Mitchell Hudson, Jr., Washington, DC 20590. U.S. Department of Transportation, • Hand Delivery: 1200 New Jersey Secretary, Maritime Administration. Docket Operations, M–30, West Avenue SE., Room W12–140, Building Ground Floor, Room W12–140, [FR Doc. 2016–11162 Filed 5–11–16; 8:45 am] Washington, DC 20590, between 9 a.m. 1200 New Jersey Avenue SE., BILLING CODE 4910–81–P and 5 p.m., Monday through Friday, Washington, DC 20590. You may also except Federal Holidays. send comments electronically via the Communications received by June 27, DEPARTMENT OF TRANSPORTATION 2016 will be considered by FRA before Internet at http://www.regulations.gov. final action is taken. Comments received All comments will become part of this Maritime Administration docket and will be available for after that date will be considered as far [Docket No. MARAD–2016 0045] as practicable. inspection and copying at the above Anyone is able to search the address between 10 a.m. and 5 p.m., E.T., Monday through Friday, except Requested Administrative Waiver of electronic form of any written the Coastwise Trade Laws: Vessel communications and comments federal holidays. An electronic version of this document and all documents SEAS THE MOMENT; Invitation for received into any of our dockets by the Public Comments name of the individual submitting the entered into this docket is available on comment (or signing the document, if the World Wide Web at http:// AGENCY: Maritime Administration, submitted on behalf of an association, www.regulations.gov. Department of Transportation. business, labor union, etc.). In FOR FURTHER INFORMATION CONTACT: ACTION: Notice. accordance with 5 U.S.C. 553(c), DOT Bianca Carr, U.S. Department of solicits comments from the public to Transportation, Maritime SUMMARY: As authorized by 46 U.S.C. better inform its processes. DOT posts Administration, 1200 New Jersey 12121, the Secretary of Transportation, these comments, without edit, including Avenue SE., Room W23–453, as represented by the Maritime any personal information the Washington, DC 20590. Telephone 202– Administration (MARAD), is authorized commenter provides, to 366–9309, Email [email protected]. to grant waivers of the U.S.-build requirement of the coastwise laws under www.regulations.gov, as described in SUPPLEMENTARY INFORMATION: As certain circumstances. A request for the system of records notice (DOT/ALL– described by the applicant the intended such a waiver has been received by 14 FDMS), which can be reviewed at service of the vessel HAPPY TIME is: www.dot.gov/privacy. See also http:// Intended Commercial Use Of Vessel: MARAD. The vessel, and a brief www.regulations.gov/#!privacyNotice ‘‘Crewed charter yacht’’. description of the proposed service, is for the privacy notice of regulations.gov. Geographic Region: ‘‘Puerto Rico’’. listed below. The complete application is given in DATES: Submit comments on or before Robert C. Lauby, DOT docket MARAD–2016–0044 at June 13, 2016. Associate Administrator for Railroad Safety, http://www.regulations.gov. Interested ADDRESSES: Comments should refer to Chief Safety Officer. parties may comment on the effect this docket number MARAD–2016 0045. [FR Doc. 2016–11217 Filed 5–11–16; 8:45 am] action may have on U.S. vessel builders Written comments may be submitted by BILLING CODE 4910–06–P or businesses in the U.S. that use U.S.- hand or by mail to the Docket Clerk, flag vessels. If MARAD determines, in U.S. Department of Transportation, DEPARTMENT OF TRANSPORTATION accordance with 46 U.S.C. 12121 and Docket Operations, M–30, West MARAD’s regulations at 46 CFR part Building Ground Floor, Room W12–140, Maritime Administration 388, that the issuance of the waiver will 1200 New Jersey Avenue SE., have an unduly adverse effect on a U.S.- Washington, DC 20590. You may also [Docket No. MARAD–2016 0044] vessel builder or a business that uses send comments electronically via the Requested Administrative Waiver of U.S.-flag vessels in that business, a Internet at http://www.regulations.gov. the Coastwise Trade Laws: Vessel waiver will not be granted. Comments All comments will become part of this HAPPY TIME; Invitation for Public should refer to the docket number of docket and will be available for Comments this notice and the vessel name in order inspection and copying at the above for MARAD to properly consider the address between 10 a.m. and 5 p.m., AGENCY: Maritime Administration, comments. Comments should also state E.T., Monday through Friday, except Department of Transportation. the commenter’s interest in the waiver federal holidays. An electronic version

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of this document and all documents DEPARTMENT OF TRANSPORTATION The complete application is given in entered into this docket is available on DOT docket MARAD–2016–0042 at the World Wide Web at http:// Maritime Administration http://www.regulations.gov. Interested www.regulations.gov. parties may comment on the effect this [Docket No. MARAD–2016 0042] action may have on U.S. vessel builders FOR FURTHER INFORMATION CONTACT: or businesses in the U.S. that use U.S.- Bianca Carr, U.S. Department of Requested Administrative Waiver of flag vessels. If MARAD determines, in Transportation, Maritime the Coastwise Trade Laws: Vessel OFF accordance with 46 U.S.C. 12121 and Administration, 1200 New Jersey CAY; Invitation for Public Comments MARAD’s regulations at 46 CFR part Avenue SE., Room W23–453, AGENCY: Maritime Administration, 388, that the issuance of the waiver will Washington, DC 20590. Telephone 202– Department of Transportation. have an unduly adverse effect on a U.S.- vessel builder or a business that uses 366–9309, Email [email protected]. ACTION: Notice. U.S.-flag vessels in that business, a SUPPLEMENTARY INFORMATION: SUMMARY: As authorized by 46 U.S.C. waiver will not be granted. Comments As described by the applicant the 12121, the Secretary of Transportation, should refer to the docket number of intended service of the vessel SEAS as represented by the Maritime this notice and the vessel name in order THE MOMENT is: Intended Commercial Administration (MARAD), is authorized for MARAD to properly consider the Use Of Vessel: ‘‘The vessel will be to grant waivers of the U.S.-build comments. Comments should also state placed in a charter fleet for rent when requirement of the coastwise laws under the commenter’s interest in the waiver not in use by friends and family’’. certain circumstances. A request for application, and address the waiver Geographic Region: ‘‘Minnesota, such a waiver has been received by criteria given in § 388.4 of MARAD’s regulations at 46 CFR part 388. Wisconsin, Illinois, Indianapolis, Ohio, MARAD. The vessel, and a brief Michigan, Pennsylvania, New York’’. description of the proposed service, is Privacy Act listed below. The complete application is given in Anyone is able to search the DATES: Submit comments on or before DOT docket MARAD–2016–0045 at electronic form of all comments June 13, 2016. http://www.regulations.gov. Interested received into any of our dockets by the parties may comment on the effect this ADDRESSES: Comments should refer to name of the individual submitting the action may have on U.S. vessel builders docket number MARAD–2016–0042. comment (or signing the comment, if or businesses in the U.S. that use U.S.- Written comments may be submitted by submitted on behalf of an association, hand or by mail to the Docket Clerk, flag vessels. If MARAD determines, in business, labor union, etc.). You may U.S. Department of Transportation, accordance with 46 U.S.C. 12121 and review DOT’s complete Privacy Act Docket Operations, M–30, West Statement in the Federal Register MARAD’s regulations at 46 CFR part Building Ground Floor, Room W12–140, 388, that the issuance of the waiver will published on April 11, 2000 (Volume 1200 New Jersey Avenue SE., 65, Number 70; Pages 19477–78). have an unduly adverse effect on a U.S.- Washington, DC 20590. You may also vessel builder or a business that uses send comments electronically via the By Order of the Maritime Administrator. U.S.-flag vessels in that business, a Internet at http://www.regulations.gov. Dated: April 28, 2016. waiver will not be granted. Comments All comments will become part of this T. Mitchell Hudson, Jr., should refer to the docket number of docket and will be available for Secretary, Maritime Administration. this notice and the vessel name in order inspection and copying at the above [FR Doc. 2016–11164 Filed 5–11–16; 8:45 am] for MARAD to properly consider the address between 10 a.m. and 5 p.m., BILLING CODE 4910–81–P comments. Comments should also state E.T., Monday through Friday, except the commenter’s interest in the waiver federal holidays. An electronic version application, and address the waiver of this document and all documents DEPARTMENT OF TRANSPORTATION criteria given in § 388.4 of MARAD’s entered into this docket is available on regulations at 46 CFR part 388. the World Wide Web at http:// Maritime Administration www.regulations.gov. Privacy Act [Docket No. MARAD–2016 0040] FOR FURTHER INFORMATION CONTACT: Anyone is able to search the Bianca Carr, U.S. Department of Requested Administrative Waiver of electronic form of all comments Transportation, Maritime the Coastwise Trade Laws: Vessel received into any of our dockets by the Administration, 1200 New Jersey TIGRESS; Invitation for Public Comments name of the individual submitting the Avenue SE., Room W23–453, comment (or signing the comment, if Washington, DC 20590. Telephone 202– AGENCY: Maritime Administration, submitted on behalf of an association, 366–9309, Email [email protected]. Department of Transportation. business, labor union, etc.). You may SUPPLEMENTARY INFORMATION: As ACTION: Notice. review DOT’s complete Privacy Act described by the applicant the intended Statement in the Federal Register service of the vessel OFF CAY is: SUMMARY: As authorized by 46 U.S.C. published on April 11, 2000 (Volume Intended Commercial Use of Vessel: 12121, the Secretary of Transportation, 65, Number 70; Pages 19477–78). ‘‘Sailing, sightseeing, snorkeling, sailing as represented by the Maritime instruction: charters. Day sails and term Administration (MARAD), is authorized By Order of the Maritime Administrator. charters’’ Geographic Region: ‘‘Puerto to grant waivers of the U.S.-build Dated: April 28, 2016. Rico. Florida, Georgia, South Carolina, requirement of the coastwise laws under T. Mitchell Hudson, Jr., North Carolina, Virginia, Maryland, certain circumstances. A request for Secretary, Maritime Administration. Delaware, New York, New Jersey, such a waiver has been received by [FR Doc. 2016–11161 Filed 5–11–16; 8:45 am] Connecticut, Rhode Island, MARAD. The vessel, and a brief BILLING CODE 4910–81–P Massachusetts, New Hampshire, description of the proposed service, is Maine.’’ listed below.

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DATES: Submit comments on or before business, labor union, etc.). You may SUPPLEMENTARY INFORMATION: As June 13, 2016. review DOT’s complete Privacy Act described by the applicant the intended ADDRESSES: Comments should refer to Statement in the Federal Register service of the vessel PALADIN is: docket number MARAD–2016–0040. published on April 11, 2000 (Volume Intended Commercial Use of Vessel: Written comments may be submitted by 65, Number 70; Pages 19477–78). ‘‘Sport fishing day trips out of hand or by mail to the Docket Clerk, By Order of the Maritime Administrator. Ketchikan, AK’’ U.S. Department of Transportation, Dated: April 28, 2016. Geographic Region: ‘‘Southeast Docket Operations, M–30, West T. Mitchell Hudson, Jr. Alaska(from Gore Point south to the Canadian border)’’ Building Ground Floor, Room W12–140, Secretary, Maritime Administration. 1200 New Jersey Avenue SE., The complete application is given in [FR Doc. 2016–11160 Filed 5–11–16; 8:45 am] Washington, DC 20590. You may also DOT docket MARAD–2016–0043 at send comments electronically via the BILLING CODE 4910–81–P http://www.regulations.gov. Interested Internet at http://www.regulations.gov. parties may comment on the effect this All comments will become part of this DEPARTMENT OF TRANSPORTATION action may have on U.S. vessel builders docket and will be available for or businesses in the U.S. that use U.S.- inspection and copying at the above Maritime Administration flag vessels. If MARAD determines, in address between 10 a.m. and 5 p.m., accordance with 46 U.S.C. 12121 and E.T., Monday through Friday, except [Docket No. MARAD–2016 0043] MARAD’s regulations at 46 CFR part federal holidays. An electronic version Requested Administrative Waiver of 388, that the issuance of the waiver will of this document and all documents the Coastwise Trade Laws: Vessel have an unduly adverse effect on a U.S.- entered into this docket is available on PALADIN; Invitation for Public vessel builder or a business that uses the World Wide Web at http:// Comments U.S.-flag vessels in that business, a www.regulations.gov. waiver will not be granted. Comments AGENCY: Maritime Administration, should refer to the docket number of FOR FURTHER INFORMATION CONTACT: Department of Transportation. this notice and the vessel name in order Bianca Carr, U.S. Department of ACTION for MARAD to properly consider the Transportation, Maritime : Notice. comments. Comments should also state Administration, 1200 New Jersey SUMMARY: As authorized by 46 U.S.C. the commenter’s interest in the waiver Avenue SE., Room W23–453, 12121, the Secretary of Transportation, application, and address the waiver Washington, DC 20590. Telephone 202– as represented by the Maritime criteria given in § 388.4 of MARAD’s 366–9309, Email [email protected]. Administration (MARAD), is authorized regulations at 46 CFR part 388. SUPPLEMENTARY INFORMATION: As to grant waivers of the U.S.-build described by the applicant the intended requirement of the coastwise laws under Privacy Act service of the vessel TIGRESS is: certain circumstances. A request for Anyone is able to search the Intended Commercial Use Of Vessel: such a waiver has been received by electronic form of all comments ‘‘6 pack passenger charter to be used in MARAD. The vessel, and a brief received into any of our dockets by the the San Francisco Bay and Sacramento description of the proposed service, is name of the individual submitting the Delta’’ listed below. comment (or signing the comment, if Geographic Region: ‘‘California’’ DATES: Submit comments on or before submitted on behalf of an association, The complete application is given in June 13, 2016. business, labor union, etc.). You may DOT docket MARAD–2016–0040 at ADDRESSES: Comments should refer to review DOT’s complete Privacy Act http://www.regulations.gov. Interested docket number MARAD–2016–0043. Statement in the Federal Register parties may comment on the effect this Written comments may be submitted by published on April 11, 2000 (Volume action may have on U.S. vessel builders hand or by mail to the Docket Clerk, 65, Number 70; Pages 19477–78). or businesses in the U.S. that use U.S.- U.S. Department of Transportation, flag vessels. If MARAD determines, in By Order of the Maritime Administrator. Docket Operations, M–30, West accordance with 46 U.S.C. 12121 and Dated: April 28, 2016. Building Ground Floor, Room W12–140, MARAD’s regulations at 46 CFR part T. Mitchell Hudson, Jr., 1200 New Jersey Avenue SE., 388, that the issuance of the waiver will Washington, DC 20590. You may also Secretary, Maritime Administration. have an unduly adverse effect on a U.S.- send comments electronically via the [FR Doc. 2016–11159 Filed 5–11–16; 8:45 am] vessel builder or a business that uses Internet at http://www.regulations.gov. BILLING CODE 4910–81–P U.S.-flag vessels in that business, a All comments will become part of this waiver will not be granted. Comments docket and will be available for should refer to the docket number of inspection and copying at the above DEPARTMENT OF TRANSPORTATION this notice and the vessel name in order address between 10 a.m. and 5 p.m., for MARAD to properly consider the Maritime Administration E.T., Monday through Friday, except comments. Comments should also state federal holidays. An electronic version [Docket No. MARAD–2016 0041] the commenter’s interest in the waiver of this document and all documents application, and address the waiver entered into this docket is available on Requested Administrative Waiver of criteria given in § 388.4 of MARAD’s the World Wide Web at http:// the Coastwise Trade Laws: Vessel regulations at 46 CFR part 388. www.regulations.gov. ORION; Invitation for Public Comments Privacy Act FOR FURTHER INFORMATION CONTACT: AGENCY: Maritime Administration, Anyone is able to search the Bianca Carr, U.S. Department of Department of Transportation. electronic form of all comments Transportation, Maritime ACTION: Notice. received into any of our dockets by the Administration, 1200 New Jersey name of the individual submitting the Avenue SE., Room W23–453, SUMMARY: As authorized by 46 U.S.C. comment (or signing the comment, if Washington, DC 20590. Telephone 202– 12121, the Secretary of Transportation, submitted on behalf of an association, 366–9309, Email [email protected]. as represented by the Maritime

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Administration (MARAD), is authorized Privacy Act • Mail: Docket Management Facility: to grant waivers of the U.S.-build Anyone is able to search the U.S. Department of Transportation, 1200 requirement of the coastwise laws under electronic form of all comments New Jersey Avenue SE., West Building certain circumstances. A request for received into any of our dockets by the Ground Floor, Room W12–140, such a waiver has been received by Washington, DC 20590–0001 name of the individual submitting the • MARAD. The vessel, and a brief comment (or signing the comment, if Hand Delivery or Courier: West description of the proposed service, is submitted on behalf of an association, Building Ground Floor, Room W12–140, listed below. business, labor union, etc.). You may 1200 New Jersey Avenue SE., between DATES: Submit comments on or before review DOT’s complete Privacy Act 9 a.m. and 5 p.m. ET, Monday through June 13, 2016. Statement in the Federal Register Friday, except Federal holidays. • Fax: 202–493–2251 ADDRESSES: Comments should refer to published on April 11, 2000 (Volume Instructions: Comments must be docket number MARAD–2016–0041. 65, Number 70; Pages 19477–78). written in the English language, and be Written comments may be submitted by By Order of the Maritime Administrator. no greater than 15 pages in length, hand or by mail to the Docket Clerk, Dated: April 28, 2016. although there is no limit to the length U.S. Department of Transportation, T. Mitchell Hudson, Jr., of necessary attachments to the Docket Operations, M–30, West Secretary, Maritime Administration. comments. If comments are submitted Building Ground Floor, Room W12–140, [FR Doc. 2016–11163 Filed 5–11–16; 8:45 am] in hard copy form, please ensure that 1200 New Jersey Avenue SE., BILLING CODE 4910–81–P two copies are provided. If you wish to Washington, DC 20590. You may also receive confirmation that your send comments electronically via the comments were received, please enclose Internet at http://www.regulations.gov. DEPARTMENT OF TRANSPORTATION a stamped, self-addressed postcard with All comments will become part of this the comments. Note that all comments docket and will be available for National Highway Traffic Safety received will be posted without change inspection and copying at the above Administration to http://www.regulations.gov, including address between 10 a.m. and 5 p.m., [Docket No. NHTSA–2015–0084; Notice 1] any personal information provided. E.T., Monday through Friday, except Please see the Privacy Act heading federal holidays. An electronic version Notice of Receipt of Petition for below. of this document and all documents Decision That Nonconforming Model Privacy Act: Anyone is able to search entered into this docket is available on Year 2012 Jeep Wrangler Multipurpose the electronic form of all comments the World Wide Web at http:// Passenger Vehicles Manufactured for received into any of our dockets by the www.regulations.gov. the Mexican Market Are Eligible for name of the individual submitting the FOR FURTHER INFORMATION CONTACT: Importation comment (or signing the comment, if Bianca Carr, U.S. Department of AGENCY: National Highway Traffic submitted on behalf of an association, Transportation, Maritime Safety Administration, DOT. business, labor union, etc.). You may Administration, 1200 New Jersey review DOT’s complete Privacy Act ACTION: Receipt of petition. Avenue SE., Room W23–453, Statement in the Federal Register Washington, DC 20590. Telephone 202– SUMMARY: This document announces published on April 11, 2000 (65 FR 366–9309, Email [email protected]. receipt by the National Highway Traffic 19477–78). SUPPLEMENTARY INFORMATION: As Safety Administration (NHTSA) of a How to Read Comments submitted to described by the applicant the intended petition for a decision that model year the Docket: You may read the comments service of the vessel ORION is: (MY) 2012 Jeep Wrangler multipurpose received by Docket Management at the Intended Commercial Use of Vessel: passenger vehicles (MPVs) that were address and times given above. You may ‘‘6 passengers for hire to perform manufactured for sale in the Mexican also view the documents from the scattering-of-ashes-at-sea ceremonies’’ market and not originally manufactured Internet at http://www.regulations.gov. Geographic Region: ‘‘California’’. to comply with all applicable Federal Follow the online instructions for The complete application is given in motor vehicle safety standards accessing the dockets. The docket ID DOT docket MARAD–2016–0041 at (FMVSS), are eligible for importation number and title of this notice are http://www.regulations.gov. Interested into the United States because they are shown at the heading of this document parties may comment on the effect this substantially similar to vehicles that notice. Please note that even after the action may have on U.S. vessel builders were originally manufactured for sale in comment closing date, we will continue or businesses in the U.S. that use U.S.- the United States and that were certified to file relevant information in the flag vessels. If MARAD determines, in by their manufacturer as complying Docket as it becomes available. Further, accordance with 46 U.S.C. 12121 and with the safety standards (the U.S.- some people may submit late comments. MARAD’s regulations at 46 CFR part certified version of the 2012 Jeep Accordingly, we recommend that you 388, that the issuance of the waiver will Wrangler MPV) and they are capable of periodically search the Docket for new have an unduly adverse effect on a U.S.- being readily altered to conform to the material. vessel builder or a business that uses standards. FOR FURTHER INFORMATION CONTACT: U.S.-flag vessels in that business, a DATES: The closing date for comments George Stevens, Office of Vehicle Safety waiver will not be granted. Comments on the petition is June 13, 2016. Compliance, NHTSA (202–366–5308). should refer to the docket number of ADDRESSES: Comments should refer to SUPPLEMENTARY INFORMATION: this notice and the vessel name in order the docket and notice numbers above Background for MARAD to properly consider the and be submitted by any of the comments. Comments should also state following methods: Under 49 U.S.C. 30141(a)(1)(A), a the commenter’s interest in the waiver • Federal eRulemaking Portal: Go to motor vehicle that was not originally application, and address the waiver http://www.regulations.gov. Follow the manufactured to conform to all criteria given in § 388.4 of MARAD’s online instructions for submitting applicable FMVSS shall be refused regulations at 46 CFR part 388. comments. admission into the United States unless

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NHTSA has decided that the motor Transmission Braking Effect, 103 Authority: 49 U.S.C. 30141(a)(1)(A), vehicle is substantially similar to a Windshield Defrosting and Defogging (a)(1)(B), and (b)(1); 49 CFR 593.7; delegation motor vehicle originally manufactured Systems, 104 Windshield Wiping and of authority at 49 CFR 1.95 and 501.8. for importation into and sale in the Washing Systems, 106 Brake Hoses, 108 Jeffrey M. Giuseppe, United States, certified under 49 U.S.C. Lamps, Reflective Devices and Director, Office of Vehicle Safety Compliance. 30115, and of the same model year as Associated Equipment, 111 Rearview [FR Doc. 2016–11144 Filed 5–11–16; 8:45 am] the model of the motor vehicle to be Mirrors, 113 Hood Latch System, 114 BILLING CODE 4910–59–P compared, and is capable of being Theft Protection, 116 Motor Vehicle readily altered to conform to all Brake Fluids, 118 Power-Operated applicable FMVSS. Window, Partition, and Roof panel DEPARTMENT OF TRANSPORTATION Petitions for eligibility decisions may System, 124 Accelerator Control be submitted by either manufacturers or Systems, 126 Electronic Stability Pipeline and Hazardous Materials importers who have registered with Control Systems, 135 Light Vehicle Safety Administration NHTSA pursuant to 49 CFR part 592. As Brake Systems, 138 Tire Pressure specified in 49 CFR 593.7, NHTSA Monitoring Systems, 201 Occupant Hazardous Materials: Delayed publishes notice in the Federal Register Protection in Interior Impact, 202a Head Applications of each petition that it receives, and Restraints, 204 Steering Control AGENCY: affords interested persons an Office of Hazardous Materials Rearward Displacement, 205 Glazing Safety, Pipeline and Hazardous opportunity to comment on the petition. Materials, 206 Door Locks and Door At the close of the comment period, Materials Safety Administration Retention Components, 207 Seating (PHMSA), DOT. NHTSA decides, on the basis of the Systems, 208 Occupant Crash ACTION: List of application delayed more petition and any comments that it has Protection, 209 Seat Belt Assemblies, than 180 days. received, whether the vehicle is eligible 210 Seat Belt Assembly Anchorages, 212 for importation. The agency then Windshield Mounting, 213 Child SUMMARY: In accordance with the publishes this decision in the Federal Restraint Systems, 214 Side Impact requirements of 49 U.S.C. 5117(c), Register. Protection, 216 Roof Crush Resistance, PHMSA is publishing the following list Mesa Auto Wholesalers (Mesa), of 219 Windshield Zone Intrusion, 225 of special permit applications that have Chandler, Arizona (Registered Importer Child Restraint Anchorage Systems, 301 been in process for 180 days or more. R–94–018) has petitioned NHTSA to Fuel System Integrity, and 302 The reason(s) for delay and the expected decide whether nonconforming 2012 Flammability of Interior Materials. completion date for action on each Jeep Wrangler MPV’s manufactured for application is provided in association the Mexican market are eligible for The petitioner also contends that the with each identified application. importation into the United States. The subject non-U.S certified vehicles are vehicles which Mesa believes are capable of being readily altered to meet FOR FURTHER INFORMATION CONTACT: substantially similar are MY 2012 Jeep the following standards, in the manner Ryan Paquet, Director, Office of Wrangler MPV’s sold in the United indicated: Hazardous Materials Special Permits States and certified by their Standard No. 101 Controls and and Approvals, Pipeline and Hazardous manufacturer as conforming to all Displays: replacement of the instrument Materials Safety Administration, U.S. applicable FMVSS. cluster with U.S. model components Department of Transportation, East The petitioner claims that it compared that include a brake warning indicator Building, PHH–30, 1200 New Jersey non-U.S. certified MY 2012 Jeep and vehicle speed markings such that Avenue Southeast, Washington, DC Wrangler MPV’s that were the vehicle, as modified, will fully 20590–0001, (202) 366–4535 manufactured for the Mexican market to comply with the standard. SUPPLEMENTARY INFORMATION: their U.S.-certified counterparts, and Standard No. 110 Tire Selection and Key to ‘‘Reason for Delay’’ found the vehicles to be substantially Rims: installation of the required tire 1. Awaiting additional information from similar with respect to compliance with information placard printed in English. most FMVSS. applicant Mesa submitted information with its The petitioner additionally states that 2. Extensive public comment under review 3. Application is technically complex and is petition intended to demonstrate that a vehicle identification plate must be affixed to the vehicle near the left of significant impact or precedent-setting non-U.S. certified MY 2012 Jeep and requires extensive analysis Wrangler MPV’s manufactured for the windshield pillar to meet the requirements of 49 CFR part 565. 4. Staff review delayed by other priority Mexican market, as originally issues or volume of special permit manufactured, conform to many All comments received before the applications applicable FMVSS in the same manner close of business on the closing date Meaning of Application Number as their U.S.-certified counterparts, or indicated above will be considered, and Suffixes are capable of being readily altered to will be available for examination in the conform to those standards. docket at the above addresses both N—New application Specifically, the petitioner claims that before and after that date. To the extent M—Modification request the non U.S.-certified MY 2012 Jeep possible, comments filed after the R—Renewal Request Wrangler MPV’s manufactured for the closing date will also be considered. P—Party To Exemption Request Mexican market, as originally Notice of final action on the petition Issued in Washington, DC, on April 27, manufactured, conform to: Standard will be published in the Federal 2016. Nos. 102 Transmission Shift Lever Register pursuant to the authority Donald Burger, Sequence, Starter Interlock, and indicated below. Chief, General Approvals and Permits.

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Reason for Estimated date Application No. Applicant delay of completion

Modification to Special Permits

16412–M ...... Nantong CIMC Tank Equipment Co. Ltd., Jiangsu, Province ...... 4 05–31–2016 16035–M ...... LCF Systems, Inc., Scottsdale, AZ ...... 4 05–31–2016 14778–M ...... Metalcraft/Sea-Fire Marine, Baltimore, MD ...... 4 05–31–2016 15610–M ...... TechKnowServ Corp., State College, PA ...... 4 05–31–2016 15537–M ...... Alaska Pacific Powder Company, Watkins, CO ...... 4 05–31–2016 7607–M ...... Thermo Fisher Scientific, Franklin, MA ...... 4 05–31–2016

New Special Permit Applications

16495–N ...... TransRail Innovation Inc., Calgary ...... 4 05–31–2016 16524–N ...... Quantum Fuel Systems Technologies Worldwide, Inc., Lake Forest, CA ...... 4 05–15–2016 16463–N ...... Salco Products, Lemont, IL ...... 3 05–31–2016 16559–N ...... HTEC Hydrogen Technology & Energy Corporation, North Vancouver, BC, Canada ...... 4 05–30–2016 16571–N ...... Chevron USA Inc., Picayune, MS ...... 4 05–15–2016 16560–N ...... LightSail Energy, Inc., Berkeley, CA ...... 4 05–10–2016 15767–N ...... Union Pacific, Railroad Company, Omaha, NE ...... 3 05–31–2016

[FR Doc. 2016–10937 Filed 5–11–16; 8:45 am] of Hazardous Materials Safety has Hazardous Materials Approvals and BILLING CODE 4910–60–M received the application described Permits Division, Pipeline and herein. Each mode of transportation for Hazardous Materials Safety which a particular special permit is Administration, U.S. Department of DEPARTMENT OF TRANSPORTATION requested is indicated by a number in Transportation, East Building, PHH–30, the ‘‘Nature of Application’’ portion of 1200 New Jersey Avenue Southeast, Pipeline and Hazardous Materials the table below as follows: 1—Motor Washington, DC 20590–0001, (202) 366– Safety Administration vehicle, 2—Rail freight, 3—Cargo vessel, 4535. 4—Cargo aircraft only, 5—Passenger- Hazardous Materials: Notice of carrying aircraft. SUPPLEMENTARY INFORMATION: Copies of Application for Special Permits DATES: Comments must be received on the applications are available for AGENCY: Office of Hazardous Materials or before June 13, 2016. inspection in the Records Center, East Safety, Pipeline and Hazardous ADDRESSES: Address Comments To: Building, PHH–30, 1200 New Jersey Materials Safety Administration Record Center, Pipeline and Hazardous Avenue Southeast, Washington, DC or at (PHMSA), DOT. Materials Safety Administration U.S. http.regulations.gov. ACTION: List of applications for special Department of Transportation This notice of receipt of applications permits. Washington, DC 20590. for special permit is published in Comments should refer to the accordance with Part 107 of the Federal SUMMARY: In accordance with the application number and be submitted in hazardous materials transportation law procedures governing the application triplicate. If confirmation of receipt of (49 U.S.C. 5117(b); 49 CFR 1.53(b)). for, and the processing of, special comments is desired, include a self- permits from the Department of addressed stamped postcard showing Issued in Washington, DC, on April 21, Transportation’s Hazardous Material the special permit number. 2016. Regulations (49 CFR part 107, subpart FOR FURTHER INFORMATION CONTACT: Donald Burger, B), notice is hereby given that the Office Ryan Paquet, Director, Office of Chief, General Approvals and Permits.

Application No. Docket No. Applicant Regulation(s) affected Nature of the special permits thereof

20222–N ...... Trinity Containers, LLC ...... 178.337–3 (g)(3) ...... To authorize the transportation in com- merce of certain DOT Specification MC– 331 cargo tank motor vehicles with a water capacity greater than 3,500 gal- lons, manufactured to the DOT MC–331 specification, constructed of non- quenched and tempered (‘‘NQT’’) steel except that the cargo tanks have baffle support clips welded directly to the inside of the cargo tank wall without the use of pads. 20223–N ...... A & P Helicopters, Inc ...... 175.1(a), 172.101(j), 172.200, To authorize the transportation in com- 172.300, 173.1, 172.400. merce of certain hazardous materials by 14 CFR part 133 Rotorcraft External Load Operations transporting hazardous materials attached to or suspended from an aircraft in remote areas of the U.S. only.

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Application No. Docket No. Applicant Regulation(s) affected Nature of the special permits thereof

20225–N ...... Alaska Air Taxi, LLC ...... 173.62(c), 172.101(j) ...... To authorize the transportation in com- merce of certain Class 1 explosive mate- rials which are Forbidden for transpor- tation by cargo aircraft within the state of Alaska when other means of transpor- tation are impractical or not available. 20226–N ...... Awesome Flight, LLC ...... 173.27(b)(3) ...... To authorize the transportation of lithium ion batteries in excess of the authorized quantity limitations via passenger and cargo aircraft. 20228–N ...... Worthington Cylinder Corpora- 173.302(f)(3), 173.302(f)(4), To authorize the manufacture, marking, tion. 173.302(f)(5), 173.302a sale, and use of non-DOT specification (a)(1), 173.304a(a)(1), fully wrapped carbon fiber reinforced 175.501(e)(3). steel lined cylinders for the transportation in commerce. 20232–N ...... Leidos Biomedical Research, 173.196(c) ...... To authorize the transportation in com- Inc. merce of live animals infected with Cat- egory B infectious substances.

[FR Doc. 2016–10940 Filed 5–11–16; 8:45 am] ACTION: Notice of actions on special as follows: 1—Motor vehicle, 2—Rail BILLING CODE 4909–60–M permit applications. freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying SUMMARY: In accordance with the aircraft. Application numbers prefixed DEPARTMENT OF TRANSPORTATION procedures governing the application by the letters EE represent applications for, and the processing of, special for Emergency Special Permits. It Pipeline and Hazardous Materials permits from the Department of Safety Administration should be noted that some of the Transportation’s Hazardous Material sections cited were those in effect at the Hazardous Materials: Actions on Regulations (49 CFR part 107, subpart time certain special permits were Special Permit Applications B), notice is hereby given of the actions issued. on special permits applications in AGENCY: Office of Hazardous Materials (October to October 2014). The mode of Issued in Washington, DC, on April 27, Safety, Pipeline and Hazardous transportation involved are identified by 2016. Materials Safety Administration a number in the ‘‘Nature of Don Burger, (PHMSA), DOT. Application’’ portion of the table below Chief, Special Permits and Approvals Branch.

MODIFICATION SPECIAL PERMIT GRANTED

S.P. No. Applicant Regulation(s) Nature of special permit thereof

14437–M ...... Columbiana Boiler Company 49 CFR 179.300 ...... To modify the special permit to authorize an additional (CBCo) LLC Columbiana, manufacturing specification CBC 106W and the re- OH. moval or clarification of language inconsistent with 179.300–19. 9847–M ...... FIBA Technologies, Inc. 49 CFR 180.209(a), 180.205(c), To modify the special permit to authorize DOT Specifica- Millbury, MA. (f), (g), and (i), 173.302a(b)(2), tion 3AAX-6000 seamless steel cylinders to be requali- (3), (4), and (5), and 180.213. fied by acoustic emission and ultrasonic examinations (AE/UE). 14799–M ...... Takata Sachsen GmbH 49 CFR 173.301(a) and 173.302a To modify the shipping description for UN3268 and add GroBweitzschen. the description Safety devices, pyrotechnic, Division 1.4G, UN0503. 16514–M ...... Robert Bosch Tool Corporation 49 CFR 172.301(c), To modify the special permit to increase the watt-hour Mt. Prospect, IL. 173.185(c)(1)(iii), (Wh) rating of lithium ion cells and batteries from 20 173.185(c)(3)(i). Wh to 60 Wh for cells and from 100 Wh to 300 Wh for batteries. 16061–M ...... Battery Solutions, LLC Howell, 49 CFR 172.200, 172.300, To modify the special permit to authorize dry cell bat- MI. 172.400. teries each with a marked rating up to 12 volts to be transported without short circuit protection; to increase the quantity of lithium metal authorized in each battery from 5 grams to 25 grams; to increase the weight of each non-spillable battery authorized from 11 pounds to 25 pounds; and to correct the Packing Groups in paragraph 6. 14298–M ...... Air Products and Chemicals, 49 CFR 180.209(a) and (b) ...... To modify the special permit to authorize DOT specifica- Inc. Allentown, PA. tion 3A or 3AA tubes with a capacity greater than 125 lbs mounted in an ISO or tube trailer frame to not be removed from bundles or be hammer tested prior to refilling and to align the markings requirements for ISO or tube trailer frame mounted DOT specification 3A or 3AA cylinders with those for DOT 3A, 3AA, 3AX, 3AAX or 3T cylinders in tube trailers.

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MODIFICATION SPECIAL PERMIT GRANTED—Continued

S.P. No. Applicant Regulation(s) Nature of special permit thereof

14453–M ...... FIBA Technologies, Inc. 49 CFR 180.209 ...... To modify the special permit to authorize an additional Millbury, MA. Division 2.2 material. 16531–M ...... NVIDIA Corporation Santa 49 CFR 173.185(c)(3); 173.185(f) To modify the special permit originally issued on an Clara, CA. emergency basis to authorize an additional two years. 11378–M ...... National Aeronautics and 49 CFR 173.201; 173.226; To modify the special permit to authorize an additional Space Administration (NASA) 173.227; 178.61–5; 178.61–20; hazardous material. Washington, DC. 173.40. 16624–M ...... AREVA Inc. Richland, WA ...... 49 CFR 173.301(a)(1)...... To modify the special permit originally issued on an emergency basis to authorize an additional two years and clarify certain requirements contained in paragraph 7, safety control measures. 15691–M ...... Department of Defense Scotts 49 CFR 180.209 ...... To modify the special permit to authorize clarifying the AFB, IL. requirements for the purpose and limitation and safety control measures.

NEW SPECIAL PERMIT GRANTED

16001–N ...... VELTEK Associates, Inc. Mal- 49 CFR parts 100–180 ...... To authorize exceptions to specification packaging, mark- vern, PA. ing and labeling requirements for certain isopropyl al- cohol formulations. (modes 1, 2, 3, 4, 5) 16452–N ...... The Procter & Gamble Com- 49 CFR parts 171–180 ...... To authorize the transportation in commerce of small pany Cincinnati, OH. quantities of certain Division 2.2 gases in small, non- refillable, plastic receptacles as not subject to the Haz- ardous Materials Regulations. (modes 1, 2, 3, 4, 5) 16477–N ...... Hydroid, Inc. Pocasset, MA ..... 49 CFR 173.185(e) ...... To authorize the transportation in commerce of certain prototype and low production lithium ion batteries con- tained in equipment. (modes 1, 2, 3) 16598–N ...... Spaceflight, Inc. Tukwila, WA .. 49 CFR 173.185(a)(1) ...... To authorize the one-time transportation in commerce of three low production lithium ion batteries contained in equipment (SHERPA spacecraft) that are not of a type proven to meet the criteria in Part III, sub-section 38.3 of the UN Manual of Tests and Criteria. (mode 1) 16606–N ...... 5-State Helicopters, Inc. Royse 49 CFR 172.101 Hazardous Mate- To authorize the transportation in commerce in the U.S. City, TX. rials Table Column (9B), Sub- only of certain hazardous materials by 14 CFR part part C of Part 172, 172.301(c), 133 Rotorcraft External Load Operations transporting 175.30. hazardous materials attached to or suspended from an aircraft. Such transportation is in support of construc- tion operations when the use of cranes or other lifting devices is impracticable or unavailable or when aircraft is the only means of transportation, without being sub- ject to certain hazard communication requirements, quantity limitations, packaging and loading and storage requirements. (mode 4) 16612–N ...... Unipart North America Limited 49 CFR 172.102(c), Special Provi- To authorize the transportation in commerce of lithium Oxford, United Kingdom. sion A54, ICAO TI Special Pro- ion batteries exceeding the 35 kg maximum weight per vision A99. package aboard cargo aircraft only. (mode 4)

Denied

8451–M ...... Request by Veolia ES Tech- nical Solutions, L.L.C. Flan- ders, NJ March 04, 2016. To modify the special permit to authorize transportation to a final disposal facility.

[FR Doc. 2016–10935 Filed 5–11–16; 8:45 am] L. 92–463; 5 U.S.C. App. I), notice is Meeting; Quarterly Report; Old and New BILLING CODE 4909–60–M hereby given of a meeting of the Business; Closing Discussion; Advisory Board of the Saint Lawrence Adjournment. Seaway Development Corporation DEPARTMENT OF TRANSPORTATION (SLSDC). The meeting will be held from 10:00 a.m. to 12 noon (EDT) on Saint Lawrence Seaway Development Tuesday, June 14, 2016 via conference Corporation call at the SLSDC’s Policy Headquarters, Advisory Board; Notice of Meeting 55 M Street SE., Suite 930, Washington, DC 20003. The agenda for this meeting Pursuant to Section 10(a)(2) of the will be as follows: Opening Remarks; Federal Advisory Committee Act (Pub. Consideration of Minutes of Past

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Attendance at the meeting is open to email, if possible. Comments may be section 15B 3 and section 15C 4 of the the interested public but limited to the sent to: Legislative and Regulatory Securities Exchange Act of 1934, which space available. With the approval of Activities Division, Office of the require, in part, any national bank or the Administrator, members of the Comptroller of the Currency, Mail Stop Federal savings association that acts as public may present oral statements at 9W–11, Attention: 1557–0184, a government securities broker/dealer or the meeting. Persons wishing further Washington, DC 20219. In addition, a municipal securities dealer to file the information should contact, not later comments may be sent by fax to (571) relevant form with the OCC to inform than Thursday, June 9, 2016, Charles 465–4326 or by electronic mail to the agency of its broker/dealer activities. Wipperfurth, Deputy Chief of Staff, [email protected]. You may The OCC uses this information to Saint Lawrence Seaway Development personally inspect and photocopy determine which national banks and Corporation, 1200 New Jersey Avenue comments at the OCC, 400 7th Street Federal savings associations are acting SE., Washington, DC 20590; 202–366– SW., Washington, DC 20219. For as government securities broker/dealers 0091. security reasons, the OCC requires that and municipal securities dealers and to Any member of the public may visitors make an appointment to inspect monitor entry into and exit from these present a written statement to the comments. You may do so by calling activities by institutions and registered Advisory Board at any time. (202) 649–6700 or, for persons who are persons. The OCC also uses the Issued at Washington, DC, on May 9, 2016. deaf or hard of hearing, TTY, (202) 649– information in planning national bank Carrie Lavigne, 5597. Upon arrival, visitors will be and Federal savings association required to present valid government- examinations. Chief Counsel. issued photo identification and to Type of Review: Regular. [FR Doc. 2016–11210 Filed 5–11–16; 8:45 am] submit to security screening in order to Affected Public: Businesses or other BILLING CODE 4910–61–P inspect and photocopy comments. for-profit. All comments received, including attachments and other supporting Estimated Number of Respondents: 19 DEPARTMENT OF THE TREASURY materials, are part of the public record (8 government securities dealers; 1 and subject to public disclosure. Do not municipal securities dealer; and 10 Office of the Comptroller of the include any information in your municipal and government securities Currency comment or supporting materials that dealers). Agency Information Collection you consider confidential or Estimated Number of Responses: 802. Activities: Information Collection inappropriate for public disclosure. Frequency of Response: On occasion. Renewal; Submission for OMB Review; Additionally, please send a copy of Estimated Annual Burden: 736 Municipal Securities Dealers and your comments by mail to: OCC Desk burden hours. Officer, 1557–0184, U.S. Office of Government Securities Brokers and On March 1, 2016, the OCC published Management and Budget, 725 17th Dealers—Registration and Withdrawal a notice regarding this collection for 60 Street NW., #10235, Washington, DC days of comment, 81 FR 10716. No AGENCY: Office of the Comptroller of the 20503, or by email to: oira submission@ comments were received. Comments Currency (OCC), Treasury. omb.eop.gov. continue to be invited on: ACTION: Notice and request for comment. FOR FURTHER INFORMATION CONTACT: (a) Whether the collection of Shaquita Merritt, Clearance Officer, SUMMARY: The OCC, as part of its information is necessary for the proper continuing effort to reduce paperwork (202) 649–5490 or, for persons who are performance of the functions of the and respondent burden, invites the deaf or hard of hearing, TTY, (202) 649– OCC, including whether the information general public and other Federal 5597, Legislative and Regulatory has practical utility; Activities Division, Office of the agencies to take this opportunity to (b) The accuracy of the OCC’s comment on a continuing information Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219. estimate of the information collection collection, as required by the Paperwork burden; Reduction Act of 1995 (PRA). SUPPLEMENTARY INFORMATION: The OCC (c) Ways to enhance the quality, In accordance with the requirements is proposing to extend OMB approval of utility, and clarity of the information to of the PRA (44 U.S.C. chapter 35), the the following information collection: be collected; OCC may not conduct or sponsor, and Title: Municipal Securities Dealers the respondent is not required to and Government Securities Brokers and (d) Ways to minimize the burden of respond to, an information collection Dealers—Registration and Withdrawal. the collection on respondents, including unless it displays a currently valid OMB Control No.: 1557–0184. through the use of automated collection Office of Management and Budget Form Numbers: MSD, MSDW,1 MSD– techniques or other forms of information (OMB) control number. The OCC is 4, MSD–5, G–FIN, G–FINW, GFIN–4 technology; and soliciting comment concerning the and GFIN–5.2 (e) Estimates of capital or start-up renewal of its information collection Abstract: This information collection costs and costs of operation, titled, ‘‘Municipal Securities Dealers is required to satisfy the requirements of maintenance, and purchase of services and Government Securities Brokers and to provide information. Dealers—Registration and Withdrawal.’’ 1 The Securities and Exchange Commission (SEC) Dated: May 9, 2016. The OCC also is giving notice that it has maintains collections for the MSD and MSDW Mary Hoyle Gottlieb, sent the collection to OMB for review. under OMB Control Nos. 3235–0083 and 3235– 0087, however, there is a requirement that these be Regulatory Specialist, Legislative & DATES: You should submit written filed with the OCC, which is covered by OMB Regulatory Activities Division. comments by June 13, 2016. Control No. 1557–0184. [FR Doc. 2016–11213 Filed 5–11–16; 8:45 am] 2 The Department of the Treasury maintains ADDRESSES: Because paper mail in the BILLING CODE P collections for the G–FIN–4 and G–FIN–5 under Washington, DC area and at the OCC is OMB Control No. 1535–0089, however there is a subject to delay, commenters are requirement that they be filed with the OCC, which 3 15 U.S.C. 78o–4. encouraged to submit comments by is covered by OMB Control No. 1557–0184. 4 15 U.S.C. 78o–5.

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Part II

Department of Labor

29 CFR Parts 1904 and 1902 Improve Tracking of Workplace Injuries and Illnesses; Final Rule

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DEPARTMENT OF LABOR affected parties do not have to comply XI. Office of Management and Budget Review with the collections of information until Under the Paperwork Reduction Act of Occupational Safety and Health the Department of Labor publishes a 1995 Administration separate document in the Federal XII. Consultation and Coordination With Indian Tribal Governments Register announcing that the Office of 29 CFR Parts 1904 and 1902 Management and Budget has approved B. References and Exhibits [Docket No. OSHA–2013–0023] them under the Paperwork Reduction In this preamble, OSHA references Act. RIN 1218–AC49 documents in Docket No. OSHA–2013– ADDRESSES: In accordance with 28 0023, the docket for this rulemaking. Improve Tracking of Workplace U.S.C. 2112(a)(2), OSHA designates Ann The docket is available at http:// Injuries and Illnesses Rosenthal, Associate Solicitor of Labor www.regulations.gov, the Federal for Occupational Safety and Health, eRulemaking Portal. AGENCY: Occupational Safety and Health Office of the Solicitor, Room S–4004, References to documents in this Administration (OSHA), Labor. U.S. Department of Labor, 200 rulemaking docket are given as ‘‘Ex.’’ ACTION: Final rule. Constitution Avenue NW., Washington, followed by the document number. The DC 20210, to receive petitions for document number is the last sequence SUMMARY: OSHA is issuing a final rule review of the final rule. of numbers in the Document ID Number to revise its Recording and Reporting FOR FURTHER INFORMATION CONTACT: For on http://www.regulations.gov. For Occupational Injuries and Illnesses press inquiries: Frank Meilinger, OSHA, example, Ex. 1, the proposed rule, is regulation. The final rule requires Office of Communications, Room N– Document ID Number OSHA–2013– employers in certain industries to 3647, U.S. Department of Labor, 200 0023–0001. electronically submit to OSHA injury Constitution Avenue NW., Washington, The exhibits in the docket, including and illness data that employers are DC 20210; telephone (202) 693–1999; public comments, supporting materials, already required to keep under existing email: [email protected] meeting transcripts, and other OSHA regulations. The frequency and For general and technical documents, are listed on http:// content of these establishment-specific information: Miriam Schoenbaum, www.regulations.gov. All exhibits are submissions is set out in the final rule OSHA, Office of Statistical Analysis, listed in the docket index on http:// and is dependent on the size and Room N–3507, U.S. Department of www.regulations.gov. However, some industry of the employer. OSHA intends Labor, 200 Constitution Avenue NW., exhibits (e.g., copyrighted material) are to post the data from these submissions Washington, DC 20210; telephone (202) not available to read or download from on a publicly accessible Web site. OSHA 693–1841; email: schoenbaum.miriam@ that Web page. All materials in the does not intend to post any information dol.gov. docket are available for inspection and on the Web site that could be used to SUPPLEMENTARY INFORMATION: copying at the OSHA Docket Office, identify individual employees. Room N–2625, U.S. Department of The final rule also amends OSHA’s I. Background Labor, 200 Constitution Avenue NW., recordkeeping regulation to update A. Table of Contents Washington, DC 20210; telephone (202) requirements on how employers inform 693–2350. employees to report work-related The following table of contents injuries and illnesses to their employer. identifies the major sections of the C. Introduction The final rule requires employers to preamble to the final rule revising OSHA’s regulation at 29 CFR part inform employees of their right to report OSHA’s Occupational Injury and Illness 1904 requires employers with more than work-related injuries and illnesses free Recording and Reporting Requirements 10 employees in most industries to keep from retaliation; clarifies the existing regulation (Improving tracking of records of occupational injuries and implicit requirement that an employer’s workplace injuries and illnesses): illnesses at their establishments. procedure for reporting work-related I. Background Employers covered by these rules must injuries and illnesses must be A. Table of Contents record each recordable employee injury reasonable and not deter or discourage B. References and Exhibits and illness on an OSHA Form 300, C. Introduction employees from reporting; and which is the ‘‘Log of Work-Related incorporates the existing statutory D. Regulatory History II. Legal Authority Injuries and Illnesses,’’ or equivalent. prohibition on retaliating against III. Section 1904.41 Employers must also prepare a employees for reporting work-related A. Background supplementary OSHA Form 301 ‘‘Injury injuries or illnesses. The final rule also B. The Proposed Rule and Illness Incident Report’’ or amends OSHA’s existing recordkeeping C. Comments on the Proposed Rule equivalent that provides additional regulation to clarify the rights of D. The Final Rule details about each case recorded on the employees and their representatives to IV. Section 1902.7—State Plan Requirements OSHA Form 300. Finally, at the end of access the injury and illness records. V. Section 1904.35 and Section 1904.36 A. Background each year, employers are required to DATES: This final rule becomes effective B. The Proposed Rule prepare a summary report of all injuries on January 1, 2017, except for C. The Final Rule and illnesses on the OSHA Form 300A, §§ 1904.35 and 1904.36, which become VI. Final Economic Analysis and Regulatory which is the ‘‘Summary of Work-Related effective on August 10, 2016. Flexibility Analysis Injuries and Illnesses,’’ and post the Collections of information: There are A. Introduction form in a visible location in the collections of information contained in B. Costs workplace. this final rule (see Section XI, Office of C. Benefits This final rule amends OSHA’s Management and Budget Review Under D. Economic Feasibility recordkeeping regulations to add E. Regulatory Flexibility Certification the Paperwork Reduction Act of 1995). VII. Unfunded Mandates requirements for the electronic Notwithstanding the general date of VIII. Federalism submission of injury and illness applicability that applies to all other IX. State Plan States information employers are already requirements contained in the final rule, X. Environmental Impact Assessment required to keep under part 1904. First,

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the final rule requires establishments affected establishments with 20 to 249 recording and reporting of occupational with 250 or more employees to employees in designated industries. injuries and illnesses (29 CFR parts electronically submit information from With respect to the anti-discrimination 1904 and 1902), along with the forms their part 1904 recordkeeping forms requirements of this final rule, OSHA employers use to record those injuries (Forms 300, 300A, and 301) to OSHA or estimates a first-year cost of $8.0 million and illnesses (66 FR 5916 (Jan. 19, OSHA’s designee on an annual basis. and annualized costs of $0.9 million per 2001)). The final rule also updated the Second, the final rule requires year. When fully implemented, the first- list of industries that are partially establishments with 20 or more year economic cost for all provisions of exempt from recording occupational employees, but fewer than 250 the final rule is estimated at $28 injuries and illnesses. In 2014, OSHA employees, in certain designated million. The rule will be phased in, again amended the part 1904 regulations industries, to electronically submit which moves the annual cost for to require employers to report work- information from their part 1904 annual reporting case characteristic data from related fatalities, in-patient summary (Form 300A) to OSHA or OSHA Forms 300 and 301 by 33,000 hospitalizations, amputations, and OSHA’s designee on an annual basis. establishments from 2017 to 2018. This losses of an eye to OSHA and to allow Third, the final rule requires, upon phase-in removes about $6.9 million electronic reporting (79 FR 56130 (Sept. notification, employers to electronically from the first year costs, but those costs 18, 2014)). The final rule also revised submit information from part 1904 would reappear in years two through 10. the list of industries that are partially recordkeeping forms to OSHA or The Agency believes that the annual exempt from recording occupational OSHA’s designee. benefits, while unquantified, exceed the injuries and illnesses. The electronic submission annual costs. These benefits include On November 8, 2013, OSHA issued requirements in the final rule do not better compliance with OSHA’s a proposed rule to amend its add to or change any employer’s statutory directive ‘‘to assure so far as recordkeeping regulations to add obligation to complete and retain injury possible every working man and woman requirements for electronic submission and illness records under OSHA’s in the Nation safe and healthful working of injury and illness information that regulations for recording and reporting conditions and to preserve our human employers are already required to keep occupational injuries and illnesses. The resources’’ (29 U.S.C. 651(b)). They also (78 FR 67254). In the preamble to the final rule also does not add to or change include increased prevention of proposed rule, OSHA explained that, the recording criteria or definitions for workplace injuries and illnesses as a consistent with applicable Federal law, these records. result of expanded access to timely, such as FOIA and specific provisions of OSHA intends to post the establishment-specific injury/illness part 1904, the Agency intended to post establishment-specific injury and illness information by OSHA, employers, the recordkeeping data it collects on its data it collects under this final rule on employees, employee representatives, public Web site. A public meeting on its public Web site at www.osha.gov. potential employees, customers, the proposed rule was held on January The publication of specific data fields potential customers, and researchers. 9–10, 2014. A concern raised by many will be in part restricted by applicable The benefits of the final rule also meeting participants was that the federal law, including the Freedom of include promotion of complete and proposed electronic submission Information Act (FOIA), as well as accurate reporting of work-related requirement might create a motivation specific provisions within part 1904. injuries and illnesses. for employers to under-report injuries OSHA does not intend to post any and illnesses. Some participants also D. Regulatory History information on the Web site that could commented that some employers be used to identify individual OSHA’s regulations on recording and already discourage employees from employees. reporting occupational injuries and reporting injuries or illnesses by Additionally, OSHA’s existing illnesses (29 CFR part 1904) were first disciplining or taking other adverse recordkeeping regulation requires issued in 1971 (36 FR 12612, July 2, action against employees who file injury employers to inform employees about 1971). This regulation requires the and illness reports. As a result, on how to report occupational injuries and recording of work-related injuries and August 14, 2014, OSHA issued a illnesses (29 CFR 1904.35(a), (b)). This illnesses that involve death, loss of supplemental notice to the proposed final rule amends OSHA’s consciousness, days away from work, rule seeking comments on whether to recordkeeping regulations to require restriction of work, transfer to another amend the part 1904 regulations to employers to inform employees of their job, medical treatment other than first prohibit employers from taking adverse right to report work-related injuries and aid, or diagnosis of a significant injury action against employees for reporting illnesses; clarifies the existing implicit or illness by a physician or other occupational injuries and illnesses. requirement that an employer’s licensed health care professional (29 OSHA received 311 comments on the procedure for reporting work-related CFR 1904.7). electronic submission section of the injuries and illnesses must be On December 28, 1982, OSHA proposed rule and 142 comments on the reasonable and not deter or discourage amended these regulations to partially supplemental notice to the proposed employees from reporting; and exempt establishments in certain lower- rule. The comments for the proposed incorporates the existing statutory hazard industries from the requirement rule and the supplemental notice to the prohibition on retaliating against to record occupational injuries and proposed rule are addressed below. employees for reporting work-related illnesses (47 FR 57699). OSHA also injuries or illnesses. amended the recordkeeping regulations II. Legal Authority OSHA estimates that this final rule in 1994 (Reporting fatalities and OSHA is issuing this final rule will have economic costs of $15 million multiple hospitalization incidents to pursuant to authority expressly granted per year, including $13.7 million per OSHA, 29 CFR 1904.39) and 1997 by sections 8 and 24 of the Occupational year to the private sector, with costs of (Annual OSHA injury and illness survey Safety and Health Act (the ‘‘OSH Act’’ $7.2 million per year for electronic of ten or more employers, 29 CFR or ‘‘Act’’) (29 U.S.C. 657, 673). Section submission for affected establishments 1904.41). 8(c)(1) requires each employer to ‘‘make, with 250 or more employees and $4.6 In 2001, OSHA issued a final rule keep and preserve, and make available million for electronic submission for amending its requirements for the to the Secretary [of Labor] or the

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Secretary of Health and Human Act, specify remedial measures to be this final rule is reasonable. The Services, such records regarding his taken to prevent and control employee requirement serves a substantial activities relating to this Act as the exposure to identified occupational government interest in the health and Secretary . . . may prescribe by hazards, while regulations are the safety of workers, has a strong statutory regulation as necessary or appropriate means to effectuate other statutory basis, and rests on reasonable, objective for the enforcement of this Act or for purposes, including the collection and criteria for determining which developing information regarding the dissemination of records of employers must report information to causes and prevention of occupational occupational injuries and illnesses. For OSHA (see New York v. Burger, 482 U.S. accidents and illnesses’’ (29 U.S.C. example, the OSHA requirements at 29 691, 702–703 (1987)). 657(c)(1)). Section 8(c)(2) directs the CFR 1910.95 are a ‘‘standard’’ because OSHA notes that two courts have Secretary to prescribe regulations they include remedial measures to held, contrary to A.B. Chance, that the ‘‘requiring employers to maintain address the specific and already Fourth Amendment requires prior accurate records of, and to make identified hazard of employee exposure judicial review of the reasonableness of periodic reports on, work-related to occupational noise. In contrast, a an OSHA field inspector’s demand for deaths, injuries and illnesses other than ‘‘regulation’’ is a purely administrative access to injury and illness logs before minor injuries requiring only first aid effort designed to uncover violations of the Agency could issue a citation for treatment and which do not involve the Act and discover unknown dangers. denial of access (McLaughlin v. Kings medical treatment, loss of Recordkeeping requirements Island, 849 F.2d 990 (6th Cir. 1988); consciousness, restriction of work or promulgated under the Act are Brock v. Emerson Electric Co., 834 F.2d characterized as regulations (see 29 motion, or transfer to another job’’ (29 994 (11th Cir. 1987)). Those decisions U.S.C. 657 (using the term ‘‘regulations’’ U.S.C. 657(c)(2)). Finally, section 8(g)(2) are inapposite here. The courts based to describe recordkeeping of the OSH Act broadly empowers the their rulings on a concern that field requirements)). Also, courts of appeal Secretary to ‘‘prescribe such rules and enforcement staff had unbridled have held that OSHA recordkeeping regulations as he may deem necessary to discretion to choose the employers they rules are regulations and not standards. carry out [his] responsibilities under would inspect and the circumstances in See, Workplace Health & Safety Council this Act’’ (29 U.S.C. 657(g)(2)). which they would demand access to Section 24 of the OSH Act (29 U.S.C. v. Reich, 56 F.3d 1465, 1468 (D.C. Cir. employer records. The Emerson Electric 673) contains a similar grant of 1995) (citing Louisiana Chemical court specifically noted that in authority. This section requires the Association v. Bingham, 657 F.2d 777, Secretary to ‘‘develop and maintain an 781–82 (5th Cir. 1981); United situations where ‘‘businesses or effective program of collection, Steelworkers of America v. Auchter, 763 individuals are required to report compilation, and analysis of F.2d 728, 735 (3d Cir. 1985)). Standards particular information to the occupational safety and health aim to correct particular identified government on a regular basis[,] a statistics’’ and ‘‘compile accurate workplace hazards, while regulations uniform statutory or regulatory statistics on work injuries and illnesses further the general enforcement and reporting requirement [would] satisf[y] which shall include all disabling, detection purposes of the OSH Act. Id. the Fourth Amendment concern serious, or significant injuries and This final rule does not infringe on regarding the potential for arbitrary illnesses . . .’’ (29 U.S.C. 673(a)). employers’ Fourth Amendment rights. invasions of privacy’’ (834 F.2d at 997, Section 24 also requires employers to The Fourth Amendment protects against fn.2). This final rule, like that ‘‘file such reports with the Secretary as searches and seizures of private hypothetical, establishes general he shall prescribe by regulation’’ (29 property by the government, but only reporting requirements based on U.S.C. 673(e)). These reports are to be when a person has a ‘‘legitimate objective criteria and does not vest field based on ‘‘the records made and kept expectation of privacy’’ in the object of staff with any discretion. The employers pursuant to section 8(c) of this Act’’ (29 the search or seizure (Rakas v. Illinois, that are required to report data, the U.S.C. 673(e)). 439 U.S. 128, 143–47 (1978)). There is information they must report, and the Further support for the Secretary’s little or no expectation of privacy in time when they must report it are authority to require employers to keep records that are required by the clearly identified in the text of the rule and submit records of work-related government to be kept and made and in supplemental documents that illnesses and injuries can be found in available (Free Speech Coalition v. will be published pursuant to the the Congressional Findings and Purpose Holder, 729 F.Supp.2d 691, 747, 750–51 Paperwork Reduction Act. The final rule at the beginning of the OSH Act (29 (E.D. Pa. 2010) (citing cases); United is similar in these respects to the U.S.C. 651). In this section, Congress States v. Miller, 425 U.S. 435, 442–43 existing regulation in § 1904.41 that declares the overarching purpose of the (1976); cf. Shapiro v. United States, 335 authorized reporting pursuant to the Act to be ‘‘to assure so far as possible U.S. 1, 33 (1948) (no Fifth Amendment OSHA Data Initiative and is reasonable every working man and woman in the interest in required records)). under the Fourth Amendment (see 62 Nation safe and healthful working Accordingly, the Fourth Circuit held, in FR 6434, 6437–38 (Feb. 11, 1997) for a conditions’’ (29 U.S.C. 651(b)). One of McLaughlin v. A.B. Chance, that an discussion of Fourth Amendment issues the ways in which the Act is meant to employer has little expectation of in the final rule on Reporting achieve this goal is ‘‘by providing for privacy in the records of occupational Occupational Injury and Illness Data to appropriate reporting procedures . . . injuries and illnesses kept pursuant to OSHA). The existing regulation in [that] will help achieve the objectives of OSHA regulations, and must disclose § 1904.41 required employers who this Act and accurately describe the them to the Agency on request (842 F.2d received OSHA’s annual survey form to nature of the occupational safety and 724, 727–28 (4th Cir. 1988)). report the following information to health problem’’ (29 U.S.C. 651(b)(12)). Even if there were an expectation of OSHA for the year described on the The OSH Act authorizes the Secretary privacy, the Fourth Amendment form: Number of workers the employer of Labor to issue two types of prohibits only unreasonable intrusions employed, the number of hours the occupational safety and health rules: by the government (Kentucky v. King, employees worked, and the requested Standards and regulations. Standards, 131 S. Ct. 1849, 1856 (2011)). The information from the records that the which are authorized by section 6 of the information submission requirement in employers keep under part 1904.

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The Act’s various statutory grants of injury or illness, even if the employee and illnesses at their establishments. authority that address recordkeeping did not file a complaint. Moreover, Employers covered by these rules must provide authority for OSHA to prohibit citations can result in orders requiring prepare an injury and illness report for employers from discouraging employee employers to abate violations, which each case (Form 301), compile a log of reports of injuries or illnesses. If may be a more efficient tool to correct these cases (Form 300), and complete employers may not discriminate against employer policies and practices than the and post in the workplace an annual workers for reporting injuries or remedies authorized under section summary of work-related injuries and illnesses, then discrimination will not 11(c), which are often employee- illnesses (Form 300A). occur to deter workers from reporting specific. OSHA currently obtains the injury their injuries and illnesses, and their The fact that section 11(c) already and illness data entered on the three employers’ records and reports may be provides a remedy for retaliation does recordkeeping forms only through more ‘‘accurate’’, as required by sections not preclude the Secretary from onsite inspections, which collect only 8 and 24 of the Act. Evidence in the implementing alternative remedies the data from the individual administrative record establishes that under the OSH Act. Where retaliation establishment being inspected, or by some employers engage in practices that threatens to undermine a program that inclusion of an establishment in a discourage injury and illness reporting, Congress required the Secretary to survey pursuant to the previous 29 CFR and many commenters provided adopt, the Secretary may proscribe that 1904.41, Annual OSHA injury and support for OSHA’s concern that the retaliation through a regulatory illness survey of ten or more employers. electronic submission requirements of provision unrelated to section 11(c). For From 1997 to 2012, OSHA used the this final rule and associated posting of example, under the medical removal authority in the previous § 1904.41 to data could provide additional protection (MRP) provision of the lead collect establishment-specific injury and motivation for employers to discourage standard, employers are required to pay illness data through the OSHA Data accurate reporting of injuries and the salaries of workers who cannot work Initiative (ODI). Through the ODI, illnesses. Therefore, prohibiting due to high blood lead levels (29 CFR OSHA requested injury and illness data employers from engaging in practices 1910.1025(k); see United Steelworkers, from approximately 80,000 larger that discourage their employees from AFL–CIO v. Marshall, 647 F.2d 1189, establishments (20 or more employees) reporting injuries or illnesses, including 1238 (D.C. Cir. 1980)). And it is well in selected industries each year. discharging or in any manner established that the Occupational Safety The ODI collected only the aggregate discriminating against such employees, and Health Review Commission may data from the 300A annual summary is ‘‘necessary to carry out’’ the order employers to pay back pay as form, and the data were not required to recordkeeping requirements of the Act abatement for violations of the MRP be submitted electronically. OSHA used (see 29 U.S.C. 657(g)(2)). requirements (see United Steelworkers, the information obtained through the As noted by many commenters, AFL–CIO v. St. Joe Resources, 916 F.2d ODI to identify and target the most section 11(c) of the Act already 294, 299 (5th Cir. 1990); Dole v. East hazardous worksites. The Department of Labor also collects prohibits any person from discharging Penn Manufacturing Co., 894 F.2d 640, occupational injury and illness data or otherwise discriminating against any 646 (3d Cir. 1990)). If the reason that an through the annual Survey of employee because that employee has employer decided not to pay MRP Occupational Injuries and Illnesses exercised any right under the Act (29 benefits was to retaliate for an (SOII), which is conducted by the U.S.C. 660(c)(1)). Under this provision, employee’s exercise of a right under the Bureau of Labor Statistics (BLS) an employee who believes he or she has Act, OSHA can still cite the employer pursuant to 29 CFR 1904.42, Requests been discriminated against may file a and seek the benefits as abatement, complaint with OSHA, and if, after from the Bureau of Labor Statistics for because payment of the benefits is data. The SOII provides annual rates investigation, the Secretary has important to vindicate the health reasonable cause to believe that section and numbers of work-related injuries interests underlying MRP. The mere fact and illnesses, but BLS is prohibited 11(c) has been violated, then the that section 11(c) provides one remedial Secretary may file suit against the from releasing establishment-specific process does not require that OSHA data to OSHA or the general public. The employer in U.S. District Court seeking treat the matter as an 11(c) case (see St. ‘‘all appropriate relief,’’ including final rule does not affect the SOII. Joe Resources, 916 F.2d at 298 (stating reinstatement and back pay (29 U.S.C. OSHA’s recordkeeping regulation that that 11(c) was not an exclusive 660(c)(2)). Discriminating against an currently covers more than 600,000 remedy, because otherwise the remedial employee who reports a fatality, injury, employers with approximately purposes of MRP would be or illness is a violation of section 11(c) 1,300,000 establishments. Although the undermined)). This would also be the (see 29 CFR 1904.36), so the conduct OSH Act gives OSHA the authority to case under the final rule. If employers prohibited by § 1904.35(b)(1)(iv) of the require all employers covered by the Act reduce the accuracy of their injury and final rule is already proscribed by to keep records of employee injuries and illness records by retaliating against section 11(c). illnesses, two classes of employers are The advantage of this new provision employees who report an injury or partially-exempted from the (§ 1904.35(b)(1)(iv)) is that it provides illness, then OSHA’s authority to collect recordkeeping requirements in part OSHA with additional enforcement accurate injury and illness records 1904. First, as provided in § 1904.1, tools to promote the accuracy and allows OSHA to proscribe such conduct employers with 10 or fewer employees integrity of the injury and illness even if the conduct would also be at all times during the previous calendar records employers are required to keep proscribed by section 11(c). year are partially exempt from keeping under part 1904. For example, under III. Section 1904.41 OSHA injury and illness records. section 11(c), OSHA may not act against Second, as provided in § 1904.2, an employer unless an employee files a A. Background establishments in certain lower-hazard complaint. Under § 1904.35(b)(1)(iv) of OSHA regulations at 29 CFR part 1904 industries are also partially exempt. the final rule, OSHA will be able to cite currently require employers with more Partially-exempt employers are not an employer for taking adverse action than 10 employees in most industries to required to maintain OSHA injury and against an employee for reporting an keep records of work-related injuries illness records unless required to do so

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by OSHA under the previous § 1904.41 • Number of cases (total number of illness information included on these or by BLS under § 1904.42. deaths, total number of cases with days forms. Right now, OSHA can access the The records required by part 1904 away from work, total number of cases information in three limited ways. provide important information to with job transfer or restrictions, and First, OSHA is able to obtain OSHA, as well as to consultants in total number of other recordable cases); establishment-specific injury and illness • OSHA’s On-Site Consultation Program. Number of days (total number of information from employers through However, OSHA enforcement programs days away from work and total number workplace inspections. OSHA of days of job transfer or restriction); inspectors examine all records kept currently do not have access to the • information in the records required by Injury and illness types (total under part 1904, including detailed part 1904 unless the establishment numbers of injuries, skin disorders, information about specified injuries and receives an onsite inspection from respiratory conditions, poisonings, illnesses. However, each year, OSHA hearing loss, and all other illnesses); inspects only a small percentage of all OSHA or is part of an OSHA annual • survey under the previous § 1904.41. At Establishment information (name, establishments subject to OSHA the beginning of an inspection, an street address, industry description, SIC authority. For example, in Fiscal Year or NAICS code, and employment OSHA representative reviews the 2014, OSHA and its state partners information (annual average number of establishment’s injury and illness inspected approximately 1 percent of employees, and total hours worked by records to help focus the inspection on establishments under OSHA authority all employees)); the safety and health hazards suggested (approximately 83,000 inspections, out • Contact information (Company by the records. (OSHA consultants of approximately 8 million total contact name, title, telephone number, conduct a similar review when an establishments). As a result, the Agency and date). establishment has requested a is not able to compile a comprehensive consultation.) OSHA has used Employers had the option of submitting and timely database of establishment- establishment-specific injury and illness their data on paper forms or specific injury/illness information from information obtained through the ODI to electronically. OSHA then calculated inspection activities. Second, OSHA has been able to obtain help target the most hazardous establishment-specific injury and illness establishment-specific injury and illness worksites. rates and used the rates in its Site- Specific Targeting (SST) enforcement information from employers through the 1. OSHA Data Initiative (ODI) program and High Rate Letter outreach ODI. However, because the ODI collected only summary data from the In the past, OSHA has used the program. The Agency also made the establishment-specific data available to Form 300A, it did not enable OSHA to authority in previous § 1904.41 to identify specific hazards or problems in conduct injury and illness surveys of the public through its Web site at http:// www.osha.gov/pls/odi/establishment_ establishments included in the ODI. In employers through the ODI. The addition, the data were not timely. The purpose of the ODI was to collect data search.html and through President Obama’s Open Government Initiative at injury/illness information in each year’s on injuries and acute illnesses Site-Specific Targeting Program came attributable to work-related activities in Data.gov (http://www.data.gov/raw/ 1461). from the previous year’s ODI, which private-sector industries from collected injury/illness data from the approximately 80,000 establishments in 2. BLS Survey of Occupational Injuries year before that. As a result, OSHA’s selected high-hazard industries. The and Illnesses (SOII) site-specific targeting typically was Agency used these data to calculate The primary purpose of the SOII is to based on injury/illness data that were establishment-specific injury/illness provide annual information on the rates two or three years old. Additionally, the rates, and in combination with other and numbers of work-related non-fatal group of 80,000 establishments in a data sources, to target enforcement and injuries and illnesses in the United given year’s ODI was a very small compliance assistance activities. The States, and on how these statistics vary fraction of establishments subject to ODI consisted of larger establishments by incident, industry, geography, OSHA oversight. (20 or more employees) in the occupation, and other characteristics. Finally, OSHA is able to obtain manufacturing industry and in an The Confidential Information Protection limited establishment-specific injury additional 70 non-manufacturing and Statistical Efficiency Act of 2002 and illness information from employers industries. These are industries with (Pub. L. 107–347, Dec. 17, 2002) through 29 CFR 1904.39, Reporting historically high rates of occupational prohibits BLS from releasing fatalities, hospitalizations, amputations, injury and illness. Typically, there were establishment-specific data to the and losses of an eye as a result of work- over 180,000 unique establishments general public or to OSHA. related incidents to OSHA. OSHA’s subject to participation in the ODI. The Each year, BLS collects data from the current regulation requires employers to ODI was designed so that each eligible three recordkeeping forms from a report work-related fatalities to OSHA establishment received the ODI survey scientifically-selected probability within 8 hours of the event. The at least once every three-year cycle. In sample of about 230,000 establishments, regulation also requires employers to a given year, OSHA would send the ODI covering nearly all private-sector report work-related in-patient survey to approximately 80,000 industries, as well as state and local hospitalizations, amputations, and establishments (1.1 percent of all government. Employers may submit losses of an eye to OSHA within 24 establishments nationwide), which their data on paper forms or hours of the event. These most severe typically accounted for approximately electronically. As stated above, the final workplace injuries and illnesses are 700,000 recordable injuries and rule will not affect the authority for the fortunately rare. OSHA receives fewer illnesses (19 percent of injuries and SOII. than 2,000 establishment-specific illnesses recorded by employers reports of fatalities each year. From nationwide). 3. OSHA Access to Establishment- January 1, 2015, to April 10, 2015, The ODI survey collected the Specific Injury and Illness Information OSHA had received roughly 2,270 following data from the Form 300A OSHA currently has only a limited reports of single in-patient (annual summary) from each ability to obtain part 1904 records, or hospitalizations, 750 reports of establishment: the establishment-specific injury and amputations, and 4 reports of a loss of

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an eye. These fatality/severe injury only a small proportion of the nation’s information to the public in a form that reports do not include the workplaces each year, and it would take is clear and intelligible.’’ establishment’s injury and illness many decades to inspect each covered • The September 8, 2011 records unless OSHA also collects these workplace in the nation even once. As memorandum from Cass R. Sunstein, records during a subsequent inspection. a result, to reduce worker injuries and Administrator of the Office of Given the above, OSHA currently illnesses, it is of great importance for Information and Regulatory Affairs, obtains limited establishment-specific OSHA to increase its impact on the entitled ‘‘Informing Consumers through injury and illness information from an many thousands of establishments Smart Disclosure’’, which provides establishment in a particular year only where workers are being injured or guidance to agencies on how to promote if the establishment was inspected or made ill but which OSHA does not have smart disclosure, defined as ‘‘the timely was part of the ODI. the resources to inspect. The final rule release of complex information and data As noted above, OSHA does obtain may accomplish this, through in standardized, machine readable aggregate information from the injury application of advances made in the formats in ways that enable consumers and illness records collected through field of behavioral economics in to make informed decisions.’’ the BLS SOII. SOII data have a time lag understanding and influencing In addition, the rule is consistent with of almost a year, with data for a given decision-making in order to prevent President Obama’s Open Government year not available until November of the worker injuries and illnesses. Initiative. In his Memorandum on following year. Specifically, the final rule recognizes Transparency and Open Government, d. Benefits of Electronic Data Collection that public disclosure of data can be a issued on January 21, 2009, President powerful tool in changing behavior. In The main purpose of this section of Obama instructed the Director of the this case, the objective of disclosure of the final rule is to prevent worker Office of Management and Budget data on injuries and illnesses is to injuries and illnesses through the (OMB) to issue an Open Government encourage employers to abate hazards collection and use of timely, Directive. On December 8, 2009, OMB and thereby prevent injuries and establishment-specific injury and illness issued a Memorandum for the Heads of data. With the information obtained illnesses, so that the employer’s Executive Departments and Agencies, through this final rule, employers, establishment can be seen by members Open Government Directive, which employees, employee representatives, of the public, including investors and requires federal agencies to take steps to the government, and researchers may be job seekers, as one in which the risk to ‘‘expand access to information by better able to identify and mitigate workers’ safety and health is low. making it available online in open workplace hazards and thereby prevent OSHA believes that disclosure of and formats.’’ The Directive also states that worker injuries and illnesses. public access to these data will (using the ‘‘presumption shall be in favor of This final rule will support OSHA’s the word commonly used in the openness (to the extent permitted by statutory directive to ‘‘assure so far as behavioral sciences literature) ‘‘nudge’’ law and subject to valid privacy, possible every working man and woman some employers to abate hazards and confidentiality, security, or other in the Nation safe and healthful working thereby prevent workplace injuries and restrictions).’’ In addition, the Directive conditions and to preserve our human illnesses, without OSHA having to states that ‘‘agencies should proactively resources’’ (29 U.S.C. 651(b)) ‘‘by conduct onsite inspections (see the book use modern technology to disseminate providing for appropriate reporting Nudge: Improving Decisions About useful information, rather than waiting procedures with respect to occupational Health, Wealth, and Happiness, by for specific requests under FOIA.’’ safety and health which procedures will Richard H. Thaler and Cass R. Sunstein A requirement for the electronic help achieve the objectives of this Act (Penguin Books, 2009)). submission of recordkeeping data will and accurately describe the nature of the The application of behavioral science help OSHA encourage employers to occupational safety and health insights to the prevention injuries and prevent worker injuries and illnesses by problem’’ (29 U.S.C. 651(b)(12)). illnesses is consistent with Executive greatly expanding OSHA’s access to the The importance of this rule in Order 13707 ‘‘Using Behavioral Insights establishment-specific information preventing worker injuries and illnesses to Better Serve the American People,’’ employers are already required to record can be understood in the context of which states, ‘‘(a) Executive under part 1904. As described in the workplace safety and health in the departments and agencies (agencies) are previous section, OSHA currently does United States today. The number of encouraged to (i) identify policies, not have systematic access to this workers injured or made ill on the job programs, and operations where information. OSHA has limited access remains unacceptably high. According applying behavioral science insights to establishment-specific injury and to the SOII, each year employees may yield substantial improvements in illness information in a particular year. experience more than 3 million serious public welfare, program outcomes, and Typically, OSHA only had access if the (requiring more than first aid) injuries program cost effectiveness.’’ establishment was inspected or was part and illnesses at work, and this number This approach is also consistent with of an OSHA injury and illness survey. is widely recognized to be an other Administration policies, In addition, the injury and illness data undercount of the actual number of including: collected through the ODI were occupational injuries and illnesses that • Executive Order 13563, which summary data only and not timely. occur annually. As described above, states, ‘‘Where relevant, feasible, and The final rule’s provisions requiring OSHA currently has very limited consistent with regulatory objectives, regular electronic submission of injury information about the injury/illness risk and to the extent permitted by law, each and illness data will allow OSHA to facing workers in specific agency shall identify and consider obtain a much larger data set of more establishments, and this final rule regulatory approaches that reduce timely, establishment-specific increases the agency’s ability to target burdens and maintain flexibility and information about injuries and illnesses those workplaces where workers are at freedom of choice for the public. These in the workplace. This information will greatest risk. However, even with approaches include warnings, help OSHA use its enforcement and improved targeting, OSHA Compliance appropriate default rules, and disclosure compliance assistance resources more Safety and Health Officers can inspect requirements as well as provision of effectively by enabling OSHA to identify

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the workplaces where workers are at collection will also enable the Agency to to improve workplace safety and health greatest risk. focus its Emphasis Program inspections to support their reputations as good For example, OSHA will be better on establishments with high injury and places to work or do business with. able to identify small and medium-sized illness rates, as it did for the National Many corporations now voluntarily employers who report high overall Emphasis Program (NEP) addressing report their worker injury and illness injury/illness rates for referral to hazards in Nursing Homes (see CPL 03– rates in annual ‘‘Sustainability Reports’’, OSHA’s free on-site consultation 00–016, April 5, 2012). in order to show investors, stakeholders, program. OSHA could also send hazard- The new collection will provide and the public that they are committed specific educational materials to establishment-specific injury and illness to positive social values, including employers who report high rates of data for analyses that are not currently workplace safety and health. Public injuries or illnesses related to those possible with the data sets from access to these data will help address a hazards, or letters notifying employers inspections, the ODI, and reporting of well-known information problem that their reported injury/illness rates fatalities and severe injuries. For present in all voluntary reporting were higher than the industry-wide example, OSHA could analyze the data initiatives: Voluntary disclosure tends rates. A recent evaluation by Abt collected under this system to answer to lead those with the worst records to Associates of OSHA’s practice of the following questions: underreport outcomes. By requiring sending referral letters to high-hazard 1. Within a given industry, what are complete, accurate reporting, interested employers identified by OSHA through the characteristics of establishments parties will be able to gauge the full the ODI confirmed the value of these with the highest injury or illness rates range of injury and illness outcomes. letters in increasing the number of (for example, size or geographic Second, these data will be useful to workplaces requesting a consultation location)? employers who want to use visit (Ex. 1833). OSHA has also found 2. Within a given industry, what are benchmarking to improve their own that such high-rate notification letters the relationships between an safety and health performance. Under were associated with a 5 percent establishment’s injury and illness data OSHA’s current recordkeeping decrease in lost workday injuries and and data from other agencies or regulation, employers have access only illnesses in the following three years. In departments, such as the Wage and to their own data, aggregate injury/ addition, OSHA will be able to use the Hour Division, the Environmental illness data in the SOII, historic information to identify emerging Protection Agency, or the Equal summary data from establishments in hazards, support an Agency response, Employment Opportunities the ODI, and other severe injury/illness and reach out to employers whose Commission? event reports. Using data collected workplaces might include those 3. Within a given industry, what are under this final rule, employers can hazards. the characteristics of establishments compare injury and illness rates at their The final rule will also allow OSHA with the lowest injury or illness rates? establishments to those at comparable to more effectively target its 4. What are the changes in types and establishments, and set workplace enforcement resources to establishments rates of injuries and illnesses in a safety/health goals benchmarked to the with high rates or numbers of particular industry over time? establishments they consider most workplaces injuries and illnesses, and Furthermore, without access to comparable. better evaluate its interventions. Prior to establishment-specific injury and illness Third, online availability of 1997, OSHA randomly selected data, OSHA has had great difficulty establishment-specific injury and illness establishments in hazardous industries evaluating the effectiveness of its information will allow employees to for inspection. This targeting system enforcement and compliance assistance compare their own workplaces to the was based on aggregated industry data. activities. Having these data will enable safest workplaces in their industries. Relatively safe workplaces in high-rate OSHA to conduct rigorous evaluations Further, while the current access industries were selected for inspection of different types of programs, provisions of the part 1904 regulation as well as workplaces that were initiatives, and interventions in provide employees the right to access experiencing high rates of injuries and different industries and geographic the information on the part 1904 illnesses. In 1997, OSHA changed its areas, enabling the agency to become recordkeeping forms, evidence shows method of targeting general-industry more effective and efficient. For that few employees exercise this right. establishments for programmed example, OSHA believes that some During 2,836 inspections conducted by inspections. The Agency began using employers who have not been OSHA between 1996 and 2011 to assess establishment-specific injury and illness inspected, but who learn about the the injury and illness recordkeeping data collected through the OSHA Data results (include monetary penalties) of practices of employers, 2,599 of the Initiative (ODI) to identify and target for certain OSHA’s inspections in the same recordkeepers interviewed (92 percent) inspection individual establishments industry or geographic area, may indicated that employees never that were experiencing high rates of voluntarily abate hazards out of concern requested access to the records required injury and illness. OSHA’s Site-Specific that they will be the target of a future under part 1904. OSHA believes that Targeting (SST) program has been inspection. Access to these data will employees in establishments with 250 OSHA’s main programmed inspection allow OSHA to compare injuries and or more employees will access and plan for non-construction workplaces illnesses at non-inspected make use of the data more frequently from 1997 through 2014. OSHA intends establishments in the same industry or when the case-specific information is to use the data collected under this final geographic areas as the inspected ones. available without having to request the rule in the same manner for targeting Publication of worker injury and information from their employers. inspections. This rule greatly expands illness data will encourage employers to Uninhibited access to the information the number and scope of establishments prevent injuries and illnesses among will allow employees in these that will provide the Agency with their their employees through several establishments to better identify hazards injury and illness data. As a result, the mechanisms: within their own workplace and to take Agency will be able to focus its First, the online posting of actions to have the hazards abated. In inspection resources on a wider establishment-specific injury and illness addition, if employees preferentially population of establishments. The data information will encourage employers choose employment at the safest

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workplaces in their industries, then become more attractive to potential Workplace safety and health employers may take steps to improve customers. professionals might use data published workplace safety and health (preventing Finally, in large construction under this final rule to identify injuries and illnesses from occurring) in contracts, particularly those involving establishments whose injury/illness order to attract and retain employees. work contracted for by state and local records suggest that the establishments Fourth, access to these data will governments, preference is often given would benefit from their services. In improve the workings of the labor to subcontractors with lower injury and general, online access to this large market by providing more complete illness rates. In some cases, employers database of injury and illness information to job seekers, and, as a with rates above a certain level are not information will support the result, encourage employers to abate eligible for the contract work. Public development of innovative ideas for hazards in order to attract more disclosure of employers’ injury and improving workplace safety and health, desirable employees. Potential illness rates will be to enable corporate and will allow everyone with a stake in employees currently have access only to and individual customers to consider workplace safety and health to the limited injury/illness information these rates in the selection of vendors participate in improving occupational currently available to the public, as and contractors. These data will also be safety and health. discussed above. Injury and illness data useful to people who believe that low Furthermore, because the data will be for the vast majority of establishments injury rates are correlated with high publicly available, industries, trade are not publicly available. Using data production quality, and who therefore associations, unions, and other groups newly accessible under this final rule, prefer to purchase products made by representing employers and workers potential employees could examine the manufacturers with low injury rates will be able to evaluate the effectiveness injury and illness records of (Paul S. Adler, 1997) (Ex. 1832). of privately-initiated injury and illness establishments where they are Disclosure of and access to injury and prevention initiatives that affect groups interested in working, to help them illness data have the potential to of establishments. In addition, linking make a more informed decision about a improve research on the distribution these data with data residing in other administrative data sets will enable future place of employment. This would and determinants of workplace injuries researchers to conduct rigorous studies also encourage employers with more and illnesses, and therefore to prevent that will increase our understanding of hazardous workplaces in a given workplace injuries and illnesses from injury causation, prevention, and industry to make improvements in occurring. Like the general public, consequences. For example, by workplace safety and health to prevent researchers currently have access only combining these data with data injuries and illnesses from occurring, to the limited injury/illness data collected in the Annual Survey of because potential employees, especially described above. Using data collected Manufactures (conducted by the United the ones whose skills are most in under this final rule, researchers might States Census Bureau), it will be demand, might be reluctant to work at identify previously unrecognized possible to examine the impact of a more hazardous establishments. In patterns of injuries and illnesses across range of management practices on injury addition, this would help address a establishments where workers are and illness rates, as well as the impact problem of information asymmetry in exposed to similar hazards. Such of injury and illness rates on the the labor market, where the businesses research would be especially useful in financial status of employers. with the greatest problems have the identifying hazards that result in a small Finally, public access to these data lowest incentive to self-disclose. number of injuries or illnesses in each will enable developers of software and Fifth, access to data will permit establishment but a large number smartphone applications to develop investors to identify investment overall, due to a wide distribution of tools that facilitate use of these data by opportunities in firms with low injury those hazards in a particular area, employers, workers, researchers, and illness rates. If investors believe industry, or establishment type. Data consumers and others. Examples of this that firms that have low rates made available under this final rule may in other areas is the use of OSHA and outperform firms with higher rates, also allow researchers to identify Wage and Hour Division violation presumably because the low-rate firms patterns of injuries or illnesses that are information in the ‘‘Eat/Shop/Sleep’’ are better managed, and they masked by the aggregation of injury/ smartphone application and, in public preferentially invest in firms with low illness data in the SOII. transit, the wide-scale private rates, then employers may take steps to The availability of establishment- development of applications for real- improve workplace safety and health specific injury and illness data will also time information on bus and subway and prevent injuries and illnesses from be of great use to county, state and arrivals using public information. occurring in order to attract investment. territorial Departments of Health and This final rule will also improve the Sixth, using data collected under this other public institutions charged with accuracy of the recorded data. Section final rule, members of the public will be injury and illness surveillance. In 1904.32 already requires company able to make more informed decisions particular, aggregation of establishment- executives subject to part 1904 about current and potential places with specific injury and illness reports and requirements to certify that they have which to conduct business. For rates from similar establishments will examined the annual summary (Form example, potential customers might facilitate identification of newly- 300A) and that they reasonably believe, choose to patronize only the businesses emerging hazards that would not easily based on their knowledge of the process in a given industry with the lowest be identified without linkage to specific by which the information was recorded, injury/illness rates. This is not possible industries or occupations. There are that the annual summary is correct and at present because, as noted above, the currently no comparable data sets complete. OSHA recognizes that most general public has access only to very available, and these public health employers are diligent in complying limited injury and illness data. Such surveillance programs must primarily with this requirement. However, a decisions by customers would also rely on reporting of cases seen by minority of employers is less diligent; in encourage establishments with higher medical practitioners, any one of whom recent years, one-third or more of injury/illness rates in a given industry would rarely see enough cases to violations of § 1904.32, and up to one- to improve workplace safety in order to identify an occupational etiology. tenth of all recordkeeping (part 1904)

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violations, have involved this currently conduct a systematic publishes the written Accident certification requirement. It is OSHA’s collection of the information on the 300 Investigation Report, which details the belief that, if this minority of employers Log. nature and causes of the accident and knows that their data must be submitted Form 301 (Incident Report)—All includes the names of other employees to the Agency and may also be collected data fields on the right-hand involved in the fatal incident. examined by members of the public, side of the form (Fields 10 through 18) The Federal Railroad Administration then they will pay more attention to the will generally be made available. The (FRA) posts Accident Investigation requirements of part 1904, which could Agency currently occasionally collects Reports filed by railroad carriers under lead both to improvements in the the form for enforcement case files. 49 U.S.C. 20901 or made by the quality and accuracy of the information OSHA generally releases these data in Secretary of Transportation under 49 and to better compliance with § 1904.32. response to FOIA requests. Section U.S.C. 20902; in the case of highway-rail Finally, the National Advisory 1904.35(b)(2)(v)(B) prohibits employers grade crossing incidents, these reports Committee on Occupational Safety and from releasing the information in Fields include personally identifiable Health (NACOSH), composed of 1 through 9 (the left-hand side of the information (age and gender of the representatives of employers, workers, form) to individuals other than the person(s) in the struck vehicle). and the public, has expressed its employee or former employee who Finally, the Federal Aviation support of the efforts of OSHA in suffered the injury or illness and his or Administration (FAA) posts National consultation with NIOSH to modernize her personal representatives. Similarly, Transportation Safety Board (NTSB) the system for collection of injury and OSHA will not publish establishment- reports about aviation accidents. These illness data to assure that it is timely, specific data from the left side of Form reports include personally identifiable complete, and accurate, as well as both 301. OSHA does not release data from information about employees, including accessible and useful to employers, Fields 1 through 9 in response to FOIA job history and medical information. employees, responsible government requests. The Agency does not currently B. The Proposed Rule agencies, and members of the public. conduct a systematic collection of the information on the Form 301. However, The proposed rule would have e. Publication of Electronic Data the Agency does review the entire Form amended OSHA’s existing As discussed above, OSHA intends to 301 during some workplace inspections recordkeeping regulation at § 1904.41 to make the data it collects public. As and occasionally collects the form for add three new electronic reporting discussed below, the publication of inclusion in the enforcement case file. requirements. First, OSHA would have specific data elements will in part be Note that OSHA will not collect or required establishments that are restricted by applicable federal law, publish Field 1 (employee name), Field required to keep injury and illness including provisions under the Freedom 2 (employee address), Field 6 (name of records under part 1904, and had 250 or of Information Act (FOIA), as well as treating physician or health care more employees in the previous specific provisions within part 1904. provider), or Field 7 (name and address calendar year, to electronically submit OSHA will make the following data of non-workplace treating facility). information from these records to OSHA from the various forms available in a While OSHA intends to make the or OSHA’s designee, on a quarterly basis searchable online database: information described above generally (proposed § 1904.41(a)(1)—Quarterly Form 300A (Annual Summary available, the Agency also wishes to electronic submission of part 1904 Form)—All collected data fields will be emphasize that it does not intend to records by establishments with 250 or made available. In the past, OSHA has release personally identifiable more employees). collected these data under the ODI and information included on the forms. For Second, OSHA would have required during OSHA workplace inspections example, in some cases, information establishments that are required to keep and released them in response to FOIA entered in Column F (Describe injury or injury and illness records under part requests. The annual summary form is illness, parts of body affected, and 1904, had 20 or more employees in the also posted at workplaces under object/substance that directly injured or previous calendar year, and are in § 1904.32(a)(4) and (b)(5). OSHA made person ill) of the 300 Log contains certain designated industries, to currently posts establishment-specific personally-identifiable information, electronically submit the information injury and illness rates calculated from such as an employee’s name or Social from the OSHA annual summary form the data collected through the ODI on Security Number. As a result, OSHA (Form 300A) to OSHA or OSHA’s OSHA’s public Web site at http:// plans to review the information designee, on an annual basis (proposed www.osha.gov/pls/odi/establishment_ submitted by employers for personally- § 1904.41(a)(2)—Annual electronic search.html. The 300A annual summary identifiable information. As part of this submission of OSHA annual summary does not contain any personally- review, the Agency will use software form (Form 300A) by establishments identifiable information. that will search for and de-identify with 20 or more employees in Form 300 (the Log)—All collected personally identifiable information designated industries). This second data fields on the 300 Log will generally before OSHA posts the data. submission requirement would have be made available on the Web site. It should also be noted that other replaced OSHA’s annual illness and Employee names will not be collected. federal agencies post establishment- injury survey, authorized by the then- OSHA occasionally collects these data specific health and safety data with current version of 29 CFR 1904.41. during inspections as part of the personal identifiers, including names. Third, OSHA would have required all enforcement case file. OSHA generally For example, the Mine Safety and employers who receive notification from releases these data in response to FOIA Health Administration (MSHA) OSHA to electronically submit specified requests. Also, § 1904.29(b)(10) publishes information gathered during information from their part 1904 injury prohibits release of employees’ names the agency’s investigations of fatal and illness records to OSHA or OSHA’s and personal identifiers contained in accidents. MSHA’s Preliminary Report designee (proposed § 1904.41(a)(3)— the forms to individuals other than the of Accident, Form 7000–13, provides Electronic submission of part 1904 government, employees, former information on fatal accidents including records upon notification). employees, and authorized the employee’s name, age, and a As previously discussed, in addition representatives. OSHA does not description of the accident. MSHA also to the new requirements for electronic

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submission of part 1904 data, the public as a result of this rule would not burdensome for both employers and preamble to the proposed rule stated be beneficial. OSHA. that OSHA intended to make the OSHA addresses all of the issues Commenters provided various reasons collected data public in order to make raised by commenters below. to support the idea that annual reporting the data useful to employers, would provide better-quality data. First, Alternatives Included in the Proposed employees, and the public in dealing some commenters commented that one Rule with safety and health issues. OSHA quarter is too short a period of time to also stated in the preamble to the In the preamble to the proposed rule, generate meaningful data (Exs. 0258, proposed rule that the publication of in addition to providing proposed 1338, 1385, 1399, 1413). For example, specific data elements would have been regulatory text, OSHA stated that it was the American Meat Institute commented restricted in part by provisions under considering several alternatives. [78 FR that ‘‘breaking the data into quarterly the Freedom of Information Act (FOIA) 67263–65270]. OSHA requested ‘bites’ will produce numbers with no and the Privacy Act, as well as specific comment on the following regulatory comparative value . . . In fact, it is provisions within part 1904. OSHA alternatives. more likely to generate misleading, incorrect information because injury proposed to make the following data Alternative A—Monthly Submission and illness incidents typically occur on from the various forms available in a Under Proposed § 1904.41(a)(1) searchable online database: a much more random basis than is Form 300A—All fields could have In Alternative A, OSHA considered reflected in what would amount to been made available. Form 300A does requiring monthly submission instead of three-month ‘snapshots’ ’’ (Ex. 0258). not contain any personally identifiable quarterly submission from Second, some commenters information. establishments with 250 or more commented that quarterly reporting was Form 300 (the Log)—All fields could employees. more likely to lead to underreporting. have been made available except for However, almost all commenters The Allied Universal Corporation Column B (the employee’s name). opposed this alternative. Several commented that ‘‘[w]ith quarterly Form 301 (Incident Report)—All commenters expressed concerns about reporting, employers are unlikely to fields on the right-hand side of the form the burdens of monthly submission on record close cases because, in many (Fields 10 through 18) could typically employers (Exs. 1211, 1112). Several instances, striking them later may be have been made available. commenters also expressed concerns impossible as the information has about the effects of monthly submission C. Comments on the Proposed Rule already been reported and posted on data quality (Exs. 1211, 1385, 1397). publicly by OSHA. Rather than assume There were many comments Other commenters commented that such an additional burden, employers supporting the proposed rule. Many monthly reporting would not provide will likely err on the side of not commenters commented that the much, if any, benefit over quarterly recording those incidents where in collection of recordkeeping data would reporting (Exs. 1384, 1391). doubt’’ (Ex. 1192). The American allow OSHA to improve workplace Ashok Chandran provided the only Chemistry Council, the Association of safety and health and prevent injuries comment in support of this alternative. Energy Service Companies (AESC), and and illnesses. Other commenters He commented that ‘‘[m]ore frequent the International Association of commented that publication of reporting will actually prevent Amusement Parks and Attractions information provided by the electronic distortion, as fewer reports would (IAAPA) provided similar comments submission of recordkeeping data from increase the chance of a limited sample (Exs. 1092, 1323, 1427). covered establishments would allow misrepresenting the conditions of an Third, several commenters employers, employees, researchers, establishment. So long as OSHA does commented that quarterly reporting unions, safety and health professionals, not use reports in isolation to trigger would not provide enough time for and the public to improve workplace investigation, this risk is low’’ (Ex. employers to complete cases and catch safety and health. There were also 1393). data mistakes (Exs. 0035, 0247, 1110, comments that the proposed rule was OSHA agrees with commenters who 1206, 1214, 1339, 1379, 1385, 1389, consistent with the actions of other stated that monthly reporting would 1399, 1405, 1406). For example, the federal and state agencies, which increase the burden on employers and Glass Packaging Institute commented already require the submission of health could result in the submission of less that ‘‘[t]he data is not static but will be and safety data. accurate recordkeeping data. Given the a moving data set and consequently of However, many commenters also potential extra burden without an added little value for evaluation or decisions. raised potential concerns about the benefit, OSHA has decided not to adopt Cases are added, deleted, change with proposed rule. Some commenters Alternative A from the proposed rule. time as information and cases and/or expressed concerns about the As explained below, the final rule treatment improve or worsen’’ (Ex. implications of the publication of safety requires annual electronic submission of 1405). and health data for employee privacy. part 1904 records by establishments ORCHSE Strategies, LLC commented There were also comments about the with 250 or more employees. that ‘‘[employers] also review the data at implications of the proposed rule for the end of the year to insure its accuracy employer privacy, especially with Alternative B—Annual Submission before it is included in company reports regard to confidential commercial Under Proposed § 1904.41(a)(1) or submitted to OSHA or to BLS. They information. Other commenters In Alternative B, OSHA considered check on outstanding cases; track day- commented that OSHA underestimated requiring annual submission for counts for cases involving restricted the cost to businesses of implementing establishments with 250 or more work activity, job transfer, and days the proposed rule, especially the employees instead of quarterly away from work; check on ongoing proposed requirement that would have submission. employee job limitations; prepare required large establishments to submit Most commenters supported estimates of future days that will be lost data on a quarterly basis. In addition, Alternative B, on grounds that annual or restricted (beyond the end of the some commenters commented that the reporting would provide better-quality, year) etc.’’ (Ex. 1339). In addition, the data provided to OSHA and to the more useful data and would be less American Petroleum Institute

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commented that ‘‘29 CFR 1904.32 updating and posting of injury/illness year under current part 1904. In requires annual certification of the 300 data could impose punitive addition, OSHA agrees that annual Forms and the quarterly submittals consequences to the contractor if the reporting will provide more meaningful would not be certified; thus, [OSHA] public or customers are reviewing their data, as well as higher-quality data, would be relying on potentially data in real time’’ (Ex. 1389). In because employers will have more time inaccurate information’’ (Ex. 1214). addition, the Environmental, Health & to update and revise the data before As for the usefulness of data provided Safety Communications Panel (EHSCP) reporting to OSHA. Finally, OSHA by quarterly reporting, many commented that quarterly reporting agrees with the commenters who stated commenters stated that there is no would be a burden for safety and health that annual reporting would lessen the evidence of benefits of quarterly professionals and ‘‘strongly burden on OSHA, by reducing both the reporting over annual reporting for recommend[ed] that nothing more total volume of data and the amount of worker safety and health (Exs. 0156, frequent than an annual submission be personally identifiable information to 0258, 1110, 1126, 1206, 1210, 1221, considered so as to minimize the time remove before publication. Therefore, 1225, 1322, 1339, 1406, 1412). For that safety and health professionals are unlike the proposed rule, which would example, the North American Insulation required to devote to paperwork and have required quarterly submission by Manufacturers Association (NAIMA) data review rather than on proactive establishments with 250 or more commented that ‘‘OSHA has failed to safety efforts’’ (Ex. 1331). employees, § 1904.41(a)(1) of the final demonstrate that the increased Commenters commented particularly rule requires annual electronic frequency of reporting will improve about the resources needed for OSHA to submission of part 1904 records by worker safety, especially by imposing a remove PII from the collected data establishments with 250 or more four-fold burden increase on both before publishing the data. For example, employees. employer and agency personnel for the North American Insulation quarterly rather than annual reporting. Manufacturers Association (NAIMA) Alternative C—One Year Phase-in of Indeed, it cannot document such a commented that ‘‘OSHA will tax its own Electronic Reporting Under Proposed result because there is no connection resources to process, review, and scrub § 1904.41(a)(1) between quarterly reporting and the data four times per year. This data In Alternative C, OSHA considered a improved worker safety’’ (Ex. 1221). will contain sensitive personal phase-in of the electronic reporting NAIMA also commented that ‘‘the delay information, and OSHA will need to requirement, under which for OSHA to scrub the data [of PII before edit the data before making it public. To establishments with 250 or more publication] will likely obviate any do this on a quarterly basis will be time employees would have had the option perceived ‘timeliness’ benefit OSHA consuming and resource intensive’’ (Ex. of submitting data on paper forms for might make in attempting to justify 1221). The Phylmar Regulatory the first year the rule would have been quarterly rather than annual data Roundtable (PRR) questioned whether in effect. submission’’ (Ex. 1221). The Fertilizer OSHA has the capacity to analyze Several commenters opposed Institute (TFI) and the Agricultural quarterly data, commenting that Alternative C on grounds that large Retailers Association (ARA) provided ‘‘annual data submissions from 580,000 companies affected by this rule should similar comments (Ex. 1412). employers strike PRR as a large volume be able to electronically submit data in OSHA also received comments that of data for OSHA to analyze. the first year, especially the Form 300 quarterly reporting would be overly Multiplying that number by quarterly (Log) and 300A (annual summary). burdensome for employers (Exs. 0247, submissions has more potential for These commenters explained that 1112, 1126, 1206, 1210, 1214, 1221, detriment than benefit’’ (Ex. 1110). submission of data in paper form would 1332, 1338, 1339, 1379, 1389, 1390, However, several commenters delay the processing and publication of 1405). For example, ORCHSE Strategies, opposed Alternative B on grounds that the data (Exs. 1211, 1345, 1350, 1381, LLC commented that ‘‘[v]erification is quarterly data would be more useful and 1384, 1387, 1424). The International often an iterative process that involves would not increase the burden on Brotherhood of Teamsters commented back-and-forth between the corporate employers (Exs. 1211, 1381, 1384). The that ‘‘these companies are certainly safety department and the site, with International Brotherhood of Teamsters large enough to handle the involvement of medical practitioners, commented that ‘‘[q]uarterly responsibility, and will receive the the injured or ill employee, supervisors submissions will help identify emerging analytic benefits such a reporting and others. Shifting from a single data trends or serious incidents within a system provides’’ (Ex. 1381). Other submission to four data submissions per much more rapid timeframe than annual commenters stated that there should not year would add substantially to the reporting, and allow for rapid be a phase-in of the electronic already significant cost and burden for intervention to stop such trends or submission requirement because OSHA these employers (at least by a factor of respond to such incidents before they does not have the resources to process four). It would also complicate the continue’’ (Ex. 1381). Similarly, the thousands of submitted paper forms process; employers would have to create International Union (UAW) commented (Exs. 1395, 1211). estimated day counts for cases that are that ‘‘annual reporting would make it However, other commenters not closed at the time of each reporting impossible to track seasonal variations supported Alternative C to provide time and then correct them when the cases in the type or rate of injuries and for employers and OSHA to come up are finally resolved’’ (Ex. 1339). illnesses’’ (Ex. 1384). with methods for protecting worker The Association of Union In response, OSHA agrees with confidentiality. The International Union Constructors (TAUC) commented that commenters who stated that annual (UAW) commented that ‘‘OSHA may ‘‘[w]ith a proposed quarterly reporting reporting would lessen the burden on find it useful to have a phase-in period frequency, often cases in the employers. OSHA believes that for submission of 301 reports by these construction industry may not be companies’ review of the data at the end employers to allow time for OSHA to resolved quickly and there is no method of the year will help to improve the come up with a method for scrubbing of recourse if the employer is found not accuracy of the submitted data, because data to ensure worker confidentiality’’ at fault once the raw data is public . . . employers are already required to certify (Ex. 1384). The United Food & A lag in the period of time between their records at the end of the calendar Commercial Workers International

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Union (UFCW) and the Services 2,377 hours for the cases, for a total of should be provided for: At least one Employees International Union (SEIU) 2,542 hours, or more than one full-time year after OSHA’s web portal is created, provided similar comments (Exs. 1345, employee. Under either scenario, OSHA debugged, tested and operational. 1387). FedEx Corporation commented would be unable to make timely use of However, a phase-in should consist of a that ‘‘if employers are required to collect the data. period without a paper reporting Form 301 data, then given that the Additionally, with respect to requirement, so companies can deploy reporting of detailed injury and illness commenters who stated that a phase-in their resources toward developing the data is a wholly novel recordkeeping would provide more time for employers systems and information that will be requirement which will require an and OSHA to develop methods to necessary in order to report investment of significant time and protect employee confidentiality, OSHA electronically’’ (Ex. 1189). The National resources for implementation, FedEx notes that a requirement that only Ready Mixed Concrete Association supports a phase-in period of at least provides for electronic submission of (NRMCA), International Association of one-year’’ (Ex. 1338). data will help the Agency search for and Industrial Accident Boards and In response, OSHA agrees with redact confidential information. As Commissions (IAIBC), and Bray commenters who stated that larger noted elsewhere in this preamble, International made similar comments companies (those with 250 or more OSHA will use existing software to (Exs. 0210, 1104, 1401). employees) have the resources to remove personally identifiable OSHA agrees with the comments for electronically submit injury and illness information before posting data on the Alternative C, above, that OSHA does data to OSHA in the first year. publicly-accessible Web site. Also as not have the resources to handle the According to commenters, in many noted above, the proposed rule would large volumes of non-electronic data cases, larger companies already keep have required establishments with 250 that Alternative D would produce. As OSHA injury and illness records or more employees to electronically above, based on OSHA’s experience electronically, so a requirement to submit data on a quarterly basis, with paper submissions to the ODI, the submit such records electronically is not whereas § 1904.41(a)(1) of the final rule unduly burdensome (Exs. 1103, 1188, requires annual submission. This Agency estimates that processing a 1209, 1211, 1387, 1393, 1424) (see also change will provide large employers paper submission might take 2 minutes Section VI Final Economic Analysis and with additional time to prepare for the for the data from Form 300A and 1 Regulatory Flexibility Analysis). first electronic submission of minute for processing the actual paper. OSHA also agrees with commenters recordkeeping data on March 2, 2017. OSHA estimates that 430,000 who stated that the Agency does not Accordingly, the final rule requires establishments will be subject to final have the resources to handle the large electronic submission of part 1904 § 1904.41(a)(2). In addition, OSHA volumes of non-electronic data that records by establishments with 250 or estimated that roughly 30 percent of the Alternative C would have produced. more employees, without a phase-in establishments in the ODI submitted Based on OSHA’s experience with paper period for paper submission. their data on paper. Based on these submissions to the ODI, the Agency Alternative D—Three Year Phase-in of estimates (3 minutes per paper estimates that processing a paper Electronic Reporting Under Proposed submission; 30 percent of submission might take 2 minutes for the § 1904.41(a)(2) establishments submit on paper; data from Form 300A and 1 minute for 430,000 establishments), OSHA In Alternative D, OSHA considered a estimates that the three-year paper processing the actual paper form. In phase-in of the electronic reporting addition, based on BLS’s experience submission phase-in option in requirement, under which Alternative D would account for 6,450 with paper submissions to the SOII, the establishments with 20 or more Agency estimates that processing each hours per year for three years, or 19,350 employees in designated industries hours total. Under a more optimistic reported case in a paper submission would have had the option of might take 2 minutes. OSHA estimates scenario assuming 10 percent of submitting data on paper forms for the establishments submitting on paper, the that 33,000 establishments will be first three years this rule would have subject to final § 1904.41(a)(1), three-year paper submission phase-in been in effect. option in Alternative D would account accounting for 713,000 reported cases. All of the commenters who In addition, roughly 30 percent of the for 2,150 hours per year for three years, specifically commented on Alternative or 6,450 hours total. Under either establishments in the ODI submitted D supported a phased-in electronic their data on paper. Based on these scenario, OSHA would be unable to submission requirement to allow make timely use of the data. estimates (3 minutes per paper smaller companies to adjust to submission; 2 minutes per case; 30 electronic reporting. Different As with Alternative C, immediate percent of establishments submit on commenters supported a phase-in electronic reporting will make the data paper; 33,000 establishments; 713,000 period of different lengths—one, two, or available to employers, the public, and cases), OSHA estimates that the one- three years, or an unspecified OSHA in a timelier manner, because year paper submission phase-in option ‘‘reasonable’’ period of time (Exs. 1206, OSHA will not have to take the time to in Alternative C would account for 495 1211, 1338, 1350, 1353, 1384, 1387, convert paper entries into electronic hours for the Form 300A and 7,130 1424). format. Also, an electronic format will hours for the cases, for a total of 7,625 OSHA also received a comment from make it much easier and faster for hours, or almost four full-time the American College of Environmental OSHA to prepare the data for employees at 2,000 hours per full-time Medicine (ACEM) stating that OSHA publication. Therefore, the final rule employee. Under a more optimistic should provide a phase-in for requires annual electronic submission of scenario assuming 10 percent of ‘‘employers who do not have access to the OSHA Form 300A by establishments establishments submitting on paper, the the Internet pending full distribution of with 20 or more employees, but fewer one-year paper submission phase-in Internet services throughout the Nation’’ than 250 employees, in designated option in Alternative C would account (Ex. 1327). The Dow Chemical Company industries, without a phase-in period for for 165 hours for the Form 300A and commented that ‘‘a phase-in period paper submission.

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With respect to commenters’ concern that ‘‘we believe 250 employees should would be required to report under about Internet availability, OSHA be the maximum. We would support a § 1904.41(a)(1) would decrease from believes that establishments with 20 or phased in lowering of this number over 34,000 to 12,000. This alternative would more employees are highly likely to several years to 100 employees as also decrease the number of injury and have access to the Internet, and the electronic reporting becomes even more illness cases with incident report burden of electronic reporting is low. routine and as the workforce continues (OSHA Form 301) and Log (OSHA Form to fragment into smaller units, as many 300) data from 720,000 to 495,000. Alternative E—Widen the Scope of expect’’ (Ex. 1387). Therefore, like the proposed rule, the Establishments Required To Report OSHA agrees with commenters who final rule requires electronic submission Under Proposed § 1904.41(a)(1) stated that reducing the size criterion to of part 1904 records by establishments In Alternative E, OSHA considered 100 would increase the burden on with 250 or more employees. widening the scope of establishments employers with diminishing benefit. required to report under this proposed The number of establishments that Alternative G—Three-Step Process of section of the rule from establishments would be required to report under this Implementing the Reporting with 250 or more employees to proposed section under Alternative E Requirements Under Proposed establishments with 100 or more would increase from 34,000 to 120,000. § 1904.41(a)(1) and (2) employees. This alternative would also increase the In Alternative G, OSHA considered a In support of Alternative E, number of injury and illness cases with three-step process of implementing the commenters stated that increasing the incident report (OSHA Form 301) and reporting requirements under the number of establishments required to Log (OSHA Form 300) data from proposed § 1904.41(a)(1) and (2). report would in turn increase public 720,000 to 1,170,000. Therefore, like the For this proposed alternative, high- access to establishment-specific injury proposed rule, the final rule requires hazard industry groups (four-digit and illness data (Exs. 1211, 1395). There electronic submission of all three NAICS) would have been defined as were also comments that lowering the recordkeeping forms by establishments having rates of injuries and illnesses size criterion to 100 employees would with 250 or more employees. involving days away from work, pose little burden on medium-sized restricted work activity, or job transfer facilities, because establishments of that Alternative F—Narrow the Scope of (DART) that are greater than 2.0. High- size often already have standardized Establishments Required To Report hazard industry sectors (two-digit recordkeeping (Exs. 1211, 1358). Under Proposed § 1904.41(a)(1) NAICS) would have been defined as However, there were also comments In Alternative F, OSHA considered agriculture, forestry, fishing and opposing Alternative E due to employer narrowing the scope of establishments hunting; utilities; construction; burden and volume of data. For required to report under this section of manufacturing; and wholesale trade. employer burden, the National the rule from establishments with 250 or In the first step of this three-step Automobile Dealers Association more employees to establishments with implementation process, reporting (NADA) commented that ‘‘[u]nder no 500 or more employees. would have been required only from the circumstances should the proposed Several commenters supported establishments in proposed threshold for quarterly reporting be Alternative F, on grounds that it would § 1904.41(a)(1) and (2) that are in high- expanded to include establishments lower the burden of the rule. The hazard industry groups (four-digit with 100 or more employees. As noted National Council of Farmer NAICS with a DART rate greater than or above, the proposed mandate is Cooperatives (NCFC) commented that equal to 2.0). unjustified at the proposed 250- ‘‘[w]e encourage OSHA to broaden the In the second step of the three-step employee threshold. Any expansion scope of establishments that fall under implementation process, OSHA would would just exacerbate the burden for a this section from 250 to 500 employees, have conducted an analysis, after a much larger universe of employers with reducing the number of establishments specified period of time, to assess the no commensurate benefit’’ (Ex. 1392). burdened by quarterly reporting effectiveness, adequacy, and burden of For volume of data, several requirements’’ (Ex. 1353). FedEx the reporting requirements in the first commenters commented that OSHA Corporation provided a similar step. The results of this analysis would should assess the effect of lowering the comment (Ex. 1338), adding that raising then have guided OSHA’s next actions. size criterion to 200 employees and that the size criterion to 500 employees The third step of the three-step 250 employees should be the maximum would still provide OSHA with a implementation process would therefore size criterion. For example, the AFL– ‘‘statistically significant pool of injury have depended on the results of OSHA’s CIO commented that ‘‘the 250 employee and illness data’’ (Ex. 1338). analysis. cut-off should be the maximum cut-off However, Logan Gowdey commented The only comment in support of for such reporting. We encourage the that raising the size criterion from 250 Alternative G was from Southern agency to examine the effect of lowering employees to 500 employees would Company, which commented that ‘‘[a] the establishment threshold to 200 reduce ‘‘establishments covered from smaller pilot group of employers in employees to determine and assess the 38,000 to 13,800 and reports from historically the highest incident rates additional information that would be 890,000 to 590,000. While the number will allow OSHA to determine if its captured by such as change, particularly of reports does not decrease that much, system works as intended’’ (Ex. 1413). information from higher hazard the number of establishments decreases Other commenters opposed Alternative industries that are of greater concern’’ dramatically, which will limit the G for various reasons, including scope, (Ex. 1350). The International importance of the data collected’’ (Ex. effectiveness, and implementation (Exs. Brotherhood of Teamsters and the 1211). 1211, 1350, 1381, 1384, 1387). For International Union, United OSHA agrees that Alternative F’s great example, the International Brotherhood Automobile, Aerospace and Agriculture reduction in the number of of Teamsters commented that ‘‘[w]e Implement Workers of America (UAW) establishments and employees covered support the proposed approach rather provided similar comments (Ex. 1381, by § 1904.41(a)(1) would reduce the than this confusing 3-step alternative. 1384). The Service Employees utility of the data. Under Alternative F, The current approach is a better means International Union (SEIU) commented the number of establishments that for capturing higher hazard industries

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and establishments. The rule already The National Retail Federation (NRF) employees available to OSHA and the has different requirements for different commented, ‘‘In NRF’s view, both the public. As stated in the preamble to the size employers. OSHA should keep this 2.0 as well as the 3.0 DART rate are too proposed rule, the intention of this rule as simple as possible. Changing low. NRF believes that, if OSHA is going rulemaking is to increase the amount of criteria through phase in would only to promulgate this standard at all, it establishment-specific data reported to complicate the implementation of the should revise the proposed threshold OSHA. Therefore, like the proposed rule’’ (Ex. 1381). DART rate to ensure that this rule is rule, the final rule requires electronic In response, OSHA agrees that designed to focus attention on true high submission of part 1904 records by Alternative G would reduce the hazard industries . . . A DART cut-off establishments with 250 or more effectiveness of the rule, increase of 3.6 derives from current data and is employees, as well as annual electronic uncertainty for employers, and make reasonably connected to the goal of the submission of the OSHA Form 300A by implementation more difficult. Proposed Regulation and any inspection establishments with 20 to 249 Therefore, like the proposed rule, the plan that originates from the data employees in designated high-hazard final rule requires electronic submission collection’’ (Ex. 1328). industries (four-digit NAICS) and of part 1904 records by establishments However, other commenters opposed industry sectors (two-digit NAICS). with 250 or more employees, and Alternative H because it would greatly annual electronic submission of the reduce the coverage of the rule (Exs. Alternative I—Enterprise-Wide Form 300A annual summary by 1211, 1350, 1374 1381, 1384, 1387). The Submission establishments with 20 to 249 International Brotherhood of Teamsters In the preamble to the proposed rule, employees in designated industries, commented, ‘‘We support the proposed OSHA stated that it was considering without the multi-step implementation approach rather than the alternative. adding a provision that would have process in this alternative. The current approach is a better means required some enterprises with multiple for capturing higher hazard industries Alternative H—Narrow the Scope of the establishments to collect and submit and establishments. Lowering [coverage] Reporting Requirements Under some part 1904 data for those to industries with a DART rate of greater Proposed § 1904.41(a)(1) and (2) establishments. Alternative I would than/equal to 2.0 would reduce the have applied to enterprises with a The proposed § 1904.41(a)(1) would number of smaller establishments minimum threshold number of have applied to all establishments with covered by about 100,000 and the establishments (such as five or more) 250 or more employees in all industries number of larger establishments covered that are required to keep records under covered by the recordkeeping by 16,000’’ (Ex. 1381). part 1904. These enterprises would have regulation. The proposed § 1904.41(a)(2) The AFL–CIO commented that been required to collect OSHA Form would have applied to establishments ‘‘[T]hese thresholds are too restrictive 300A (annual summary) data from each with 20 or more employees in and limited. Indeed, according to the of their establishments that are required designated, i.e., high-hazard industry preamble, employing a DART threshold to keep injury/illness records under part groups (classified at the four-digit level of 3.0 would cover fewer establishments 1904. The enterprise would then have in NAICS) and/or high-hazard industry (152,000) than are covered under the electronically submitted the data from sectors (classified at the two-digit level current ODI (160,000). The current ODI each establishment to OSHA. For in NAICS). High-hazard industry groups has employed a combination of 2 digit example, if an enterprise had seven (four-digit NAICS) would have been and 4 digit thresholds similar to the establishments required to keep injury/ defined as industries with DART rates proposed rule. There is no reason to illness records under part 1904, the that are greater than or equal to 2.0. change this approach’’ (Ex. 1350). High-hazard industry sectors (two-digit UNITE HERE also expressed concerns enterprise would have submitted seven NAICS) would have included that Alternative H would leave sets of data, one for each establishment. agriculture, forestry, fishing and vulnerable workers at risk, commenting OSHA also stated in the preamble to hunting; utilities; construction; that ‘‘the alternative proposals to limit the proposed rule that Alternative I manufacturing; and wholesale trade. coverage to a DART threshold of 3.0 at would have applied to enterprises with In Alternative H, OSHA considered an the four digit level would result in multiple levels within the organization. alternative approach to defining the excluding NAICS 7211—Traveler For example, if XYZ Chemical Inc. owns industry scope of these two sections of Accommodation. This industry sector is three establishments, but is itself owned the proposed rule, by limiting the a growing sector with a growing by XYZ Inc., which has several wholly industry coverage to include only workforce. Certain job titles are owned subsidiaries, then XYZ Inc. industry groups that meet a designated predominantly female, women of color would have done the reporting for all DART cut-off. This approach would not and immigrant workers. We believe establishments it controls. These have included coverage of designated excluding 7211 would result in requirements would have only applied industry sectors as a criterion. increased workplace injuries and to establishments within the jurisdiction Some commenters supported illnesses and decreased prevention’’ (Ex. of OSHA and subject to OSHA’s Alternative H as a way for OSHA to 1374). recordkeeping regulation. focus its efforts on high-hazard industry OSHA believes that Alternative H Establishments within the corporate groups. For example, FedEx Corporation would overly limit the scope of the rule structure but located on foreign soil supported Alternative H with a DART and agrees with commenters who stated would not have been subject to the cut-off rate of 3.0, commenting that that there is no compelling reason to requirement in Alternative I. ‘‘this would focus OSHA’s limited change the approach OSHA used in the There were general comments resources on high hazard industries and ODI of using a combination of industrial supporting Alternative I, opposing employers with high DART rates’’ (Ex. classification levels to identify high- Alternative I, and providing suggestions 1338). The American Coatings hazard industry sectors and groups. In about the implementation of Alternative Association (ACA) and the Reusable addition, using a DART cut-off of 3.0 I. The proposed rule also asked 16 Industrial Packaging Association (RIPA) would result in having less specific questions related to Alternative made similar comments (Exs. 1329, establishment-specific data for I, and OSHA received comments 1367). establishments with 20 or more addressing those questions as well.

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Commenters who generally supported American College of Occupational and parent company may own 51% of the Alternative I did so for a variety of Environmental Medicine commented stock of a subsidiary but is in no way reasons, including more useful that ‘‘enterprise-level reporting will involved in that subsidiary’s day-to-day information, more corporate increase the likelihood that the chief activities’’ (Ex. 1198). The North involvement in establishment-level corporate officers are aware of potential American Insulation Manufacturers prevention of workplace injuries and variations in the safety of different Association (NAIMA) provided a similar illnesses, and coordination with current business processes and establishment comment (Ex. 1221). OSHA enterprise-level efforts. practices that put employees at risk. FedEx Corporation commented that For more useful information, NIOSH Greater corporate awareness may ‘‘the safety resources in place at each commented that a 2006 study by enhance corporate oversight and FedEx operating company . . . are in Mendeloff et al. found that ‘‘firm size (or improve health and safety throughout the closest proximity to the unique day- enterprise size) may be more important all establishments’’ (Ex. 1327). The to-day operations of their than establishment size in determining AFL–CIO and the Service Employees establishments, and are therefore best levels of risk . . . Theoretically, International Union (SEIU) provided equipped to enhance the workplace enterprise size may have a substantial similar comments (Exs. 1350, 1387). safety of their employees’’ (Ex. 1338). impact on the ability to prevent injuries For coordination with current OSHA Similarly, the Interstate Natural Gas and illnesses. Business policies, enterprise-level efforts, the AFL–CIO Association of America (INGAA) also practices, and strategies generally vary commented that ‘‘[t]he concept of commented that ‘‘[i]t is well understood by size of employer, and large corporate level responsibility under the that separate establishments, even businesses may have more resources for OSH Act is well-established. While the separate establishments that operate as protecting employee safety and health, majority of OSHA’s enforcement efforts part of a single larger enterprise, do not and reducing workplace hazards and are focused at the establishment level, all operate the same: each establishment exposures compared with small the OSH Act itself and its obligations, has different personnel, procedures, businesses. Enterprise-level differences including the recordkeeping processes and protocols’’ (Ex. 1206). in occupational safety and health requirements, apply to employers. For There were also comments that management systems may exist in decades, OSHA has utilized corporate- enterprise-level data would not be specialization and expertise, wide settlements as a means to bring useful for improving workplace safety development of training and reporting about compliance on a corporate-wide and health (Exs. 1198, 1279, 1338, 1408, systems, amount of available data, and basis, and recently OSHA has attempted 1412). For example, the National other factors’’ (Ex. 0216). to utilize this corporate-wide approach Association of Home Builders (NAHB) Several commenters commented that in its initial enforcement actions. Under commented that ‘‘OSHA claims that enterprise-level safety and health data the current Severe Violator Enforcement enterprise-wide submission of would be extremely useful to OSHA as Program (SVEP), violations at one establishment data to the enterprise will well as other groups (Exs. 0241, 1278, establishment trigger expansion of improve communication and reporting 1327, 1345, 1350, 1384, 1387). For oversight to other establishments of the between establishments and enterprises example, Worksafe commented that this same employer’’ (Ex. 1350). The Service and this will lead to enterprise‘s ability data would be ‘‘extremely useful, not Employees International Union (SEIU) to solve establishment safety and health only to OSHA but also to advocates, provided a similar comment (Ex. 1387). problems . . . Again, the agency has employers, employees, unions, and Finally, the United Steelworkers failed to establish any benefits for the representatives to ensure improved (USW) commented that ‘‘[e]nterprise proposed rulemaking . . . That is identification and resolution of wide data must retain discernible readily apparent here with OSHA‘s workplace health and safety hazards’’ facility identification information so proposed claims regarding the (Ex. 1278). The National Safety Council that stakeholders can determine which enterprise-wide alternative. OSHA fails (NSC) added that ‘‘[t]he value of facility each injury or illness entry to cite any example, research paper, benchmarking would be substantially occurred [in]. This will provide case study, or journal article to support enhanced if the Enterprise Wide stakeholders with the ability to this claim’’ (Ex. 1408). Alternative is adopted. This option determine where specific hazards exist The National Association of would allow for the calculation of and engage in efforts to eliminate or Manufacturers (NAM) commented that enterprise wide rates and allow for more reduce these hazards’’ (Ex. 1424). ‘‘[t]here is no evidence suggesting that meaningful benchmarking among On the other hand, several there is currently a lack of enterprises’’ (Ex. 0241). commenters generally opposed communication regarding safety and There were also several comments implementation of Alternative I for health between establishments and about the scarcity of enterprise-level various reasons, including the enterprises, nor is there any evidence data, especially for OSHA. NIOSH comparative ineffectiveness of that this alleged benefit will somehow commented that ‘‘few data are available enterprises versus establishments in reduce workplace injuries and at the enterprise level. This lack of data promoting workplace health and safety, illnesses’’ (Ex. 1279). is a principal source of imprecision in reduced data quality, employer burden, For data quality, the North American defining small business. Greater clarity and legality (Exs. 1198, 1206, 1221, Insulation Manufacturers Association in measurement of both structure and 1338). (NAIMA) commented that ‘‘[w]ith size of employer would aid small For the effectiveness of enterprises certain umbrella corporations holding business research and prevention efforts versus establishments in promoting levels upon levels of subsidiaries, it such as those conducted by the NIOSH workplace health and safety, the Food could conceivably turn into a never- Small Business Assistance and Outreach Marketing Institute commented that ending task . . . OSHA will Program’’ (Ex. 0216). The AFL–CIO and ‘‘there are many corporate hierarchies in undoubtedly get multiple reports on the Change to Win provided similar which there are ‘enterprises’ above same sites, omitted reports, and have a comments (Exs. 1350, 1380). ‘establishments’ that are not involved in massive burden trying to audit all that With respect to corporate involvement or responsible for the safety controls in information. At best, it is impractical in establishment-level prevention of place at the establishments. Indeed, and imprudent to pursue enterprise- workplace injuries and illnesses, the there are many instances in which a wide reporting (Ex. 1221). The

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International Association of Drilling Compared to the SIC system, NAICS paper submission’’ (Ex. 1110). The Contractors (IADC) commented that established several new industry United Food & Commercial Workers ‘‘[m]any member companies have categories, including specific categories International Union (UFCW) establishments (rigs) operating in for establishments conducting office or commented that ‘‘large employers (those multiple zip codes. Grouping them management activities. One of the greater than 250) can meet requirements together in one enterprise report would industry classifications newly partially for mandatory electronic reporting once not allow for data separation into exempt from OSHA recordkeeping OSHA provides the technical means to various states’’ (Ex. 1199). requirements is NAICS 5511, Company do so’’ (Ex. 1345). Several commenters commented that Management and Enterprises. Because The American Federation of Teachers enterprise-wide submission would of this change, OSHA believes it cannot (AFT) commented, ‘‘Once the create confusion when applying OSHA’s now include a requirement in this final [electronic reporting] requirement is in recordkeeping requirements (Exs. 1198, rule for enterprise-wide collection and place, OSHA will for the first time have 1338, 1343, 1356, 1411). For example, submission of part 1904 data. the most comprehensive and timely data the Food Marketing Institute OSHA also wishes to point out that base on large and high hazard commented that ‘‘new definitions will nothing in this final rule prevents establishments. The agency will be able have to be created for all the core enterprises or corporate offices from to do frequent and systematic terminology (e.g., ‘enterprise’) and, as voluntarily collecting and submitting comparisons between like legal history has demonstrated part 1904 data for their establishments. establishments and better target repeatedly, regardless of the definition, Based on the comments to Alternative I, consultation and enforcement. There much litigation will be generated before as well as the Agency’s own experience, will also be opportunities to track the true bounds of the terms are OSHA believes that there are benefits patterns of specific injuries and discovered. Further, the opportunities for enterprise-wide collection and illnesses as we have never had before. for wide-scale confusion and error are submission of recordkeeping data. As This ability will be important for abundant’’ (Ex. 1198). Other noted by commenters, large companies research as well as enforcement . . . commenters expressed similar concerns generally have more resources for Electronic reporting will assist us in not about definitions (Exs. 1200, 1221). protecting employee safety and health only identifying new hazards but also In response, OSHA has decided not to and reducing workplace hazards and measuring their impact of in a timely include a requirement in the final rule exposures. Enterprise-level collection manner (Ex. 1358). The AFL–CIO made for enterprise-wide collection and and submission of part 1904 data a similar comment (Ex. 1350). submission of recordkeeping data. increases the likelihood that corporate However, many other commenters OSHA based this decision on two main offices will be aware of variations in expressed concern that only allowing reasons. First, OSHA agrees with establishment processes and practices electronic submission would burden commenters who stated that it would be that place employees at risk. OSHA small establishments without Internet difficult to administer an enterprise- believes that greater corporate access, especially those in rural areas, wide collection and submission involvement and oversight enhance and that OSHA should continue to requirement. Specifically, because there safety and health at all establishments. allow a paper-based reporting option are wide variations in corporate Accordingly, OSHA encourages (Exs. 0179, 0211, 0253, 0255, 1092, structure, OSHA believes that it would enterprises and corporate offices to 1113, 1123, 1124, 1190, 1198, 1199, be difficult to establish a part 1904 voluntarily collect and electronically 1200, 1205, 1273, 1322, 1327, 1332, definition of enterprise. This is submit part 1904 records for their 1342, 1343, 1359, 1366, 1370, 1386, particularly a concern when some establishments required to submit such 1401, 1408, 1410, 1411, 1416, 1417). For corporate structures include records under the final rule. example, the American Forest & Paper establishments that are otherwise legally Association commented that ‘‘OSHA separate entities. Also, the question of Questions in the NPRM must continue to allow a paper-based enterprise ownership or control of In addition to Alternatives A through reporting option. Many businesses, specific establishments can be an I, the preamble to the proposed rule particularly small firms located in rural extremely complex legal issue, included several questions about areas, do not have ready access to the especially when parent companies have specific issues in this rulemaking. Some Internet or may find electronic reporting multiple divisions or subsidiaries. of these issues are addressed elsewhere burdensome because they currently OSHA also believes that in some cases in this preamble. The remaining issues have a paper-based record system’’ (Ex. it may be difficult for larger enterprises are addressed below. 0179). The Texas Cotton Ginners to identify all of the establishments Association (TCGA) made a similar under its ownership or control. Implications of Required Electronic Data comment (Ex. 0211). The Food Second, when the proposed rule for Submission Marketing Institute further commented this rulemaking was issued in In the preamble to the proposed rule, that ‘‘OSHA acknowledges that 30% of November 2013, OSHA’s recordkeeping OSHA asked, ‘‘What are the 2010 ODI establishments did not regulation included a list of partially- implications of requiring all data to be electronically submit injury and illness exempt industries based on the submitted electronically? This proposed information and that ‘‘most agencies’’ Standard Industrial Classification (SIC) rule would be among the first in the currently allow paper submission of system. On September 18, 2014, OSHA federal government without a paper information. Id. at 67273. This confirms published a final rule in the Federal submission option.’’ [78 FR 67271]. that OSHA is aware that not all small Register revising the list of partially- Several commenters supported businesses will have the access exempt industries in appendix A to mandatory electronic submission. The necessary for electronic submission’’ subpart B of part 1904. [79 FR 56130]. Phylmar Regulatory Roundtable (PRR) (Ex. 1198). As part of this revision, partial commented that ‘‘PRR company Several commenters expressed exemption to OSHA’s recordkeeping establishments currently collect and particular concern about the burden of regulation is now based on the North record injury and illness data manually mandatory electronic submission on American Industry Classification and electronically. Members prefer farmers. The California Farm Bureau System (NAICS). submitting data electronically over Federation (CFBF) commented that a

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recent USDA survey showed that ‘‘68 intends to establish a help desk to the 300A annual summary to OSHA or percent of farmers (both livestock/ support data collection and submission OSHA’s designee on an annual basis. poultry and crop producers) have a under the final rule. In addition, The list of designated industries subject computer and only 67 percent have employers will be able to report the to the annual submission requirement in internet access . . . the same USDA information from a different location, proposed § 1904.41(a)(2) was included report shows that only a mere 40 such as a public library. Further, for the in proposed appendix A to subpart E. percent of farmers actually use a data collection under the ODI, OSHA The designated industries in proposed computer to conduct their farming provided employers multiple chances Appendix A to Subpart E represented business. Should OSHA move forward after the due date to submit their data all industries covered by part 1904 with with the rule, the agency must give before issuing citations for non- a 2009 DART rate in the BLS SOII of 2.0 consideration to allowing paper response. OSHA expects to continue or greater, excluding four selected submissions. Because submission of this practice when employers have transit industries where local these records will be mandatory, failing technical issues and are unable to government is a major employer. to do so will create a hardship on submit their information under this In the preamble to the proposed rule, agricultural employers, and increase the final rule. OSHA asked, ‘‘More current BLS injury cost burden of the rule for employers’’ In addition, OSHA will phase in and illness data will be available at the (Ex. 1366). The American Farm Bureau implementation of the data collection time of the final rulemaking. Use of Federation (AFBF), Pennsylvania Farm system. In the first year, all newer data may result in changes to the Bureau (PFB), the New York Farm establishments required to routinely proposed industry coverage. Should Bureau (NYFB), and the Louisiana Farm submit information under the final rule OSHA use the most current data Bureau Federation (LFBF) provided will be required to submit only the available in determining coverage for its similar comments (Exs. 1113, 1359, information from the Form 300A (by final rule? Would this leave affected 1370, 1386). July 1, 2017). In the second year, all entities without proper notice and the OSHA agrees with the commenters establishments required to routinely opportunity to provide substantive who supported electronic submission. submit information under the final rule comment?’’ [78 FR 67271]. Specifically, OSHA believes that will be required to submit all of the OSHA received several comments electronic submission is necessary if a required information (by July 1, 2018). related to this question. Two data system is to provide timely and This means that, in the second year, commenters supported using 2009 BLS useful establishment-specific establishments with 250 or more injury and illness data for determining information about occupational injuries employees that are required to routinely coverage for high-hazard industries and illnesses. In addition, as discussed submit information under the final rule under the final rule, on grounds that in Section VI Final Economic Analysis will be responsible for submitting more current data would leave affected and Regulatory Flexibility Analysis, information from the Forms 300, 301, entities without proper notice and the OSHA believes that establishments with and 300A. In the third year, all opportunity to provide comment (Exs. 20 or more employees are highly likely establishments required to routinely 1206, 1329). One commenter, the to have access to the Internet and that submit under this final rule will be California Department of Industrial the burden of electronic reporting is low required to submit all of the required Relations (DIR), Office of the Director, even for the few employers for whom it information (by March 2, 2019). This recommended ‘‘ways of increasing the may be more difficult to access the means that beginning in the third year stability of the system, namely, not Internet. Consequently, the final rule (2019), establishments with 250 or more changing industries required to report, requires electronic submission of injury employees will be responsible for not using a phased in approach to and illness records to OSHA. submitting information from the Forms reporting, and encouraging use of data Commenters also expressed several 300, 301, and 300A, and establishments through a successful data sharing Web technical concerns about the electronic with 20–249 employees in an industry site’’ (Ex. 1395). The International submission requirement. The listed in appendix A to subpart E of part Brotherhood of Teamsters supported Associated General Contractors of New 1904 will be responsible for submitting using the most current data available for York, LLC (AGC NYS) expressed the information from the Form 300A by determining coverage in the final rule, concern that ‘‘those that attempted to March 2 each year. This will provide commenting that ‘‘[w]e recommend that submit their information but failed due sufficient time to ensure comprehensive OSHA use the latest BLS data. The to a Web site that does not function outreach and compliance assistance in results of the Survey of Occupational properly may also be considered to be advance of implementation. Injuries and Illnesses (SOII) are one year non-compliant with such regulations’’ Finally, OSHA will use feedback from behind, but they may point to emerging (Ex. 1364). Both the National Ready users of the data collection system from or immediate hazards’’ (Ex. 1381). Mixed Concrete Association (NRMCA) the first year of implementation to Another commenter supported OSHA’s and the American Subcontractors inform the development and use of the most current BLS data Association (ASA) suggested that OSHA improvement of the data collection available for determining coverage, and should maintain a paper submission system. OSHA will incorporate user stated that OSHA should be able to use option for establishments experiencing experience and design improvements the new data without needing a new temporary technical difficulties with throughout the life of the data collection round of notice and comment because it electronic submission (Exs. 0210, 1322). system, based on user feedback and discussed this possibility in the In response, OSHA believes that there emerging technology. proposed rule. This commenter also are more cost-effective ways to deal commented that it would be with Web site problems than Coverage of Industries in § 1904.41(a)(2) counterproductive to limit OSHA to the maintaining a paper submission option. Section 1904.41(a)(2) of the proposed BLS data available at the time of the For example, OSHA plans to allocate rule would have required proposed rule (Ex. 1211). resources to help employers who have establishments with 20 or more OSHA also received a comment from difficulty submitting required employees, but fewer than 250 the National Automobile Dealers information because of unforeseen employees, in designated industries, to Association (NADA) stating that ‘‘OSHA circumstances. Specifically, OSHA electronically submit information from should drop the proposal’s use of a one

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year (2009) DART rate. Focusing on a F.3d 696, 699 (D.C. Cir. 2008); Miami- recommends that new establishments single year risks mischaracterizing the Dade County v. U.S. E.P.A., 529 F.3d that meet the requirement of a DART injury and illness rates for a given 1049, 1059 (11th Cir. 2008); United rate of 2.0 be added every year but that industry and/or capturing an Steelworkers of America, AFL–CIO–CLC the original list of high hazard uncharacteristic decline or spike. A v. Marshall, 647 F.2d 1189, 1221 (D.C. establishments be maintained regardless more appropriate approach would be a Cir. 1980) (‘‘a final rule may properly of changes to their DART that puts them rolling three year average similar to differ from a proposed rule and indeed below the threshold. Those original what OSHA has used to periodically set must so differ when the record evidence establishments should continue partial exemptions from its injury/ warrants the change .... Where the reporting for a minimum of ten years in illness recording mandates. Of course, change between proposed and final rule order to ascertain if their DART rates are any reporting mandate should reset is important, the question for the court trending lower over the long term’’ (Ex. annually for each industry sector based is whether the final rule is a ‘logical 1358). on a three-year average of its most outgrowth’ of the rulemaking On the other hand, the California current BLS SOII data’’ (Ex. 1392). proceeding’’). The list of designated Department of Industrial Relations After carefully considering all of these industries in Appendix A to Subpart E (DIR), Office of the Director supported comments, OSHA has decided to use a of the final rule is a logical outgrowth ‘‘increasing the stability of the system, three-year average of BLS data from of the proposal, and the number of namely, [by] not changing industries 2011, 2012, and 2013 to determine comments provides a clear indication required to report’’ (Ex. 1395). coverage for § 1904.41(a)(2) of the final that the affected members of the public Finally, Thoron Bennett supported rule. This three-year range represents are not only familiar with the issue of requiring establishments with 20 or the most current BLS data available at using the most current data, but also more employees in all industries to the time of this final rule. OSHA agrees viewed the inclusion of such data as a report, rather than limiting the with the International Brotherhood of potential outcome of this rulemaking. requirement to establishments with 20 Teamsters that using the most current As a result, unlike the proposed rule, or more employees on a list of BLS data available at the time of the the final rule will use a three-year designated high-hazard industries. He final rule, rather than outdated data, is average (2011, 2012, 2013) DART rate of further commented that OSHA should the most effective way to identify 2.0 or greater for determining the list of ‘‘[f]orget the tiered reporting based on emerging workplace hazards, as well as industries included in appendix A to employment numbers or designated the most effective way to identify the subpart E. list of high hazard industries for Also in the preamble to the proposed industries. Simply require electronic inclusion in appendix A to subpart E. A rule, OSHA asked whether the list of data submission for all employers who three-year average will reduce the designated industries in appendix A to have to fill out the OSHA 300/300A/301 effects of natural year-to-year variation subpart E should remain the same each logs’’ (Ex. 0035). in industry injury/illness rates, and it is year, or whether the list should be OSHA agrees with the commenters consistent with OSHA’s current adjusted each year to reflect the most who stated that the list of designated approach in determining the partial current BLS injury and illness data. industries in appendix A to subpart E exemption of industries under existing OSHA also asked how OSHA could best should not be updated each year. OSHA § 1904.2. The alternative would have inform affected establishments about the believes that moving industries in and been to use a single year of BLS data adjustments, if the list were adjusted. out of appendix A to subpart E each from 2009 for a final rule that will go One commenter supported adjusting year would be confusing. OSHA also into effect in 2017. the list of designated industries each believes that keeping the same OSHA also agrees with commenters year to reflect the most current BLS industries in appendix A to subpart E who stated that the Agency provided injury and illness data (Ex. 1211). Other each year will increase the stability of sufficient notice and opportunity for commenters supported adjusting the list the system and reduce uncertainty for comment in the NPRM by explicitly in other ways. For example, the employers. Accordingly, OSHA will not, asking whether the Agency should use International Union (UAW) commented as part of this rulemaking, include a the most current data available when that ‘‘annual updating is too frequent requirement to annually or periodically determining coverage for the final rule. and would leave employers confused as adjust the list of designated industries to The combination of OSHA’s request for to whether or not they need to report. reflect more recent BLS injury and comment on the approach that it Updating every three years would be illness data. Any such revision to the ultimately adopted in the final rule, and more appropriate’’ (Ex. 1384). The list of industries in appendix A to the comments and testimony received in International Brotherhood of Teamsters subpart E in the future would require response to the proposed rule, provided and the Service Employees International additional notice and comment the regulated community with adequate Union (SEIU) provided similar rulemaking. notice regarding the outcome of the comments (Exs. 1381, 1387). The The designated industries, which will rulemaking. See, e.g., Nat’l Mining Ass’n American Federation of Teachers (AFT) be published in appendix A to subpart v. Mine Safety & Health Admin., 512 commented that ‘‘[t]he AFT E of the final rule, will be as follows:

NAICS Industry

11 ...... Agriculture, forestry, fishing and hunting. 22 ...... Utilities. 23 ...... Construction. 31–33 ...... Manufacturing. 42 ...... Wholesale trade. 4413 ...... Automotive parts, accessories, and tire stores. 4421 ...... Furniture stores. 4422 ...... Home furnishings stores. 4441 ...... Building material and supplies dealers.

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NAICS Industry

4442 ...... Lawn and garden equipment and supplies stores. 4451 ...... Grocery stores. 4452 ...... Specialty food stores. 4521 ...... Department stores. 4529 ...... Other general merchandise stores. 4533 ...... Used merchandise stores. 4542 ...... Vending machine operators. 4543 ...... Direct selling establishments. 4811 ...... Scheduled air transportation. 4841 ...... General freight trucking. 4842 ...... Specialized freight trucking. 4851 ...... Urban transit systems. 4852 ...... Interurban and rural bus transportation. 4853 ...... Taxi and limousine service. 4854 ...... School and employee bus transportation. 4855 ...... Charter bus industry. 4859 ...... Other transit and ground passenger transportation. 4871 ...... Scenic and sightseeing transportation, land. 4881 ...... Support activities for air transportation. 4882 ...... Support activities for rail transportation. 4883 ...... Support activities for water transportation. 4884 ...... Support activities for road transportation. 4889 ...... Other support activities for transportation. 4911 ...... Postal service. 4921 ...... Couriers and express delivery services. 4922 ...... Local messengers and local delivery. 4931 ...... Warehousing and storage. 5152 ...... Cable and other subscription programming. 5311 ...... Lessors of real estate. 5321 ...... Automotive equipment rental and leasing. 5322 ...... Consumer goods rental. 5323 ...... General rental centers. 5617 ...... Services to buildings and dwellings. 5621 ...... Waste collection. 5622 ...... Waste treatment and disposal. 5629 ...... Remediation and other waste management services. 6219 ...... Other ambulatory health care services. 6221 ...... General medical and surgical hospitals. 6222 ...... Psychiatric and substance abuse hospitals. 6223 ...... Specialty (except psychiatric and substance abuse) hospitals. 6231 ...... Nursing care facilities. 6232 ...... Residential mental retardation, mental health and substance abuse facilities. 6233 ...... Community care facilities for the elderly. 6239 ...... Other residential care facilities. 6242 ...... Community food and housing, and emergency and other relief services. 6243 ...... Vocational rehabilitation services. 7111 ...... Performing arts companies. 7112 ...... Spectator sports. 7121 ...... Museums, historical sites, and similar institutions. 7131 ...... Amusement parks and arcades. 7132 ...... Gambling industries. 7211 ...... Traveler accommodation. 7212 ...... RV (recreational vehicle) parks and recreational camps. 7213 ...... Rooming and boarding houses. 7223 ...... Special food services. 8113 ...... Commercial and industrial machinery and equipment (except automotive and electronic) repair and maintenance. 8123 ...... Dry-cleaning and laundry services.

OSHA notes that 15 industries in Transit and Ground Passenger Rooming and Boarding Houses (NAICS appendix A to subpart E in the final rule Transportation (NAICS 4859), Postal 7213), and Special Food Services were not included in proposed Service (NAICS 4911), Other (NAICS 7223). Conversely, three appendix A to subpart E. These Ambulatory Health Care Services industries that were included in industries are Specialty Food Stores (NAICS 6219), Community Food and proposed appendix A to subpart E are (NAICS 4452), Vending Machine Housing, and Emergency and Other not included in the final Appendix A to Operators (NAICS 4542), Urban Transit Relief Services (NAICS 6242), Subpart E. These industries are Inland Systems (NAICS 4851), Interurban and Performing Arts Companies (NAICS Water Transportation (NAICS 4832), Rural Bus Transportation (NAICS 4852), 7111), Museums, Historical Sites, and Scenic and Sightseeing Transportation, Taxi and Limousine Service (NAICS Similar Institutions (NAICS 7121), RV Water (NAICS 4872), and Home Health 4853), School and Employee Bus (Recreational Vehicle) Parks and Care Services (NAICS 6216). Transportation (NAICS 4854), Other Recreational Camps (NAICS 7212),

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The following table summarizes the (2011, 2012, 2013) compared to using establishments in each industry based changes in affected industries by using 2009 BLS data and provides the on the most recent 2012 County the three-year average of BLS data expected number of affected Business Patterns data:

Expected No. of NAICS Industry affected establishments

In appendix A to subpart E of the final rule (using three-year average of 2011, 20012, 2013 BLS data), but NOT in appendix A to subpart E of the proposed rule (using 2009 BLS data)

4452 ...... Specialty food stores ...... 1221 4542 ...... Vending machine operators ...... 493 4851 ...... Urban transit systems ...... 374 4852 ...... Interurban and rural bus transportation ...... 184 4853 ...... Taxi and limousine service ...... 740 4854 ...... School and employee bus transportation ...... 2025 4859 ...... Other transit and ground passenger transportation ...... 918 4911 ...... Postal service ...... * 6219 ...... Other ambulatory health care services ...... 3282 6242 ...... Community food and housing, and emergency and other relief services ...... 2481 7111 ...... Performing arts companies ...... 1079 7121 ...... Museums, historical sites, and similar institutions ...... 1161 7212 ...... RV (recreational vehicle) parks and recreational camps ...... 392 7213 ...... Rooming and boarding houses ...... 67 7223 ...... Special food services ...... 7812

In Appendix A to Subpart E of the proposed rule (using 2009 BLS data), but NOT in Appendix A to Subpart E of the final rule (using three-year average of 2011, 2012, 2013 BLS data)

4832 ...... Inland water transportation ...... 123 4872 ...... Scenic and sightseeing transportation, water ...... 131 6216 ...... Home health care services ...... 12801 * Insufficient data.

Design of the Electronic Submission files’’ (Ex. 1384). Harvey Staple to transmit their data electronically System commented that ‘‘the states and OSHA instead of completing online forms. For In the preamble to the proposed rule, [could] work together to develop a example, the system could allow OSHA asked, ‘‘How should the system whereby one entry into an employers to securely transfer electronic data submission system be electronic log could be used for multiple encrypted data over the Web in an designed? How can OSHA create a information reporting (i.e., state and acceptable data file format (e.g., MS system that is easy to use and federal). It would further enhance all Excel, XML, or csv) for validation and compatible with other electronic parties involved if the system could be import into the electronic reporting systems that track and report tied into the workers compensation system. OSHA will provide users with establishment-specific injury and illness system to maximize the data already easy-to-follow guidance that addresses data?’’ [78 FR 67271]. captured without adding another required data elements (a data There were many comments with paperwork burden’’ (Ex. 0154). dictionary), format and other technical suggestions about the overall design of In response, OSHA notes that, considerations, and steps involved in OSHA’s electronic submission system. because there are many commercial validation, transfer, and confirmation. Several commenters commented that software products on the market for Routines will be programmed to OSHA’s electronic data submission recording and managing information on automate as much of the process as system should be compatible with workplace injuries/illnesses to support possible, with prompts for manual existing systems. The United compliance with OSHA recordkeeping review as needed. Steelworkers (USW) commented that requirements, OSHA plans to coordinate Quick Incidents suggested the use of ‘‘[i]t is important that OSHA ensure that with trade associations and health and an Application Programming Interface electronic systems put in place for this safety consultants to identify the (API), commenting that ‘‘Application initiative are compatible with existing products in widest use. OSHA would Programming Interfaces (APIs) have systems in common use. We also then review available information about gained widespread usage in the encourage OSHA to update their system these products to help inform relevant corporate world . . . Having this type of as necessary to keep up with advances considerations during development of machine to machine communication in technology and facilitate the transfer the OSHA system for ensuring ease-of- ensures that data is transferred securely, of employer data’’ (Ex. 1424). Rachel use and compatibility with commercial accurately and quickly without any Armont; the California Department of products in common use. human intervention . . . An API would Industrial Relations (DIR), Office of the When OSHA develops the data allow companies to connect their Director; and Shawn Lewis provided collection system, the Agency will incident recording software directly to similar comments (Exs. 0198, 1320, consider commercial systems used by the OSHA reporting system. Incident 1395). establishments to maintain their injury/ reports would be transmitted seamlessly The International Union (UAW) illness records. This means that the without any redundancy. For companies commented that ‘‘such a system should Agency’s system may provide a with an existing incident recording allow for employers [to] upload existing mechanism and protocol for employers system this proposed API would allow

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OSHA submission without any translate the information into the ‘301 submission of Excel or XML files. PRR additional burden’’ (Ex. 1220). Form’ on the internet. This may not be supports this approach, as it appears to OSHA will explore this suggestion as straightforward as OSHA makes it accommodate both establishment size during development of the data seem and certainly it may be more (smaller establishments would likely collection system, in addition to the file costly than OSHA anticipates. It also not use the online form) and the diverse transfer concept described above. only increases the risks of errors software programs companies currently The Risk and Insurance Management occurring in the translation but used to electronically manage injury Society suggested another approach, eliminates the usefulness of equivalent and illness data’’ (Ex. 1210). The commenting that ‘‘[m]any employers forms’’ (Ex. 1109). The National International Brotherhood of Teamsters have in place systems to report their Association of Manufacturers and Littler provided a similar comment (Ex. 1381). injury and illness data through the Mendelson, P. C. provided similar The Dow Chemical Company Electronic Data Interchange . . . If comments (Exs. 1279, 1385). suggested that it is ‘‘vitally important for OSHA decides to move forward with the OSHA’s response is that, in employers to receive immediate proposed rule, then an effort should be developing the data collection system, feedback as to whether their data entry made to accept data submitted through OSHA may consider aspects of the was successful or unsuccessful. OSHA’s the current Electronic Data Interchange IAIABC EDI standards that might inform web portal should respond to each and system’’ (Ex. 1222). and streamline data submission to the every attempt at data entry, by The International Association of OSHA system, rather than designing the providing a confirmation of receipt or a Industrial Accident Boards and system to accept the workers’ confirmation of failure. The Commissions (IAIABC) suggested that compensation forms or equivalent forms confirmation notice should describe OSHA should ‘‘consider the benefits of themselves. That is, because workers’ what was received (or not received) using the IAIABC’s established First and compensation forms are for a specific with sufficient detail to be useful in Subsequent Reports of Injury Standard purpose and can vary by state, the resolving disputes in an enforcement (IAIABC EDI Claims Standard). workers’ compensation form data context’’ (Ex. 1189). Implementation of an existing electronic elements may not fit OSHA’s reporting The Allied Universal Corporation standard would be much faster and requirements. commented about potential technical easier than developing a brand new The Association of Occupational issues, suggesting that ‘‘OSHA must also electronic reporting protocol . . . All of Health Professionals in Healthcare consider the heavy traffic flow as the the IAIABC’s EDI standards have been (AOHP) commented about the submission deadline approaches, and developed by workers’ compensation importance of compatibility between ensure the Web site to submit business and technical experts and are existing systems and OSHA’s electronic electronically does not crash or cause widely used and actively supported. To data submission system because ‘‘[t]he further reporting problems’’ (Ex. 1192). date, 40 jurisdictions have implemented need to double enter the data is a Thoron Bennett noted another potential at least one of the IAIABC’s EDI significant concern. Double data entry issue, commenting that ‘‘many standards’’ (Ex. 1104). was a significant concern when NIOSH companies have security measures that In response, OSHA notes that was proposing the Occupational Safety cause electronic reporting problems, IAIABC’s EDI claim standards are used Health Network (OHSN). NIOSH particularly defense and research by many states for standardizing the considered this concern and was able to companies that safeguard their submission of workers’ compensation create an interface to eliminate double electronic information’’ (Ex. 0035). claims information. When OSHA data entry into this national database. Several commenters suggested that develops the data collection system, the Double data entry is costly in terms of OSHA should consult on this issue with Agency will assess whether some time and the use of scarce human other governmental agencies that collect variation of the standard or its basic resources to manage these record establishment-specific injury and illness logic might be appropriate for ensuring keeping requirements (Ex. 0246). The data. Senator Tom Harkin commented consistency in the submission and Risk and Insurance Management Society that ‘‘OSHA’s sister agency the Mine processing of data to OSHA. provided a similar comment (Ex. 1222). Safety and Health Administration However, the Dow Chemical Several other commenters provided (MSHA), along with other agencies like Company commented that ‘‘[i]t is comments about making the electronic the Federal Railroad Administration probably literally impossible for OSHA data submission system user-friendly. (FRA) and Federal Aviation to design its web portal to be compatible The Association of Occupational Health Administration (FAA), currently with every electronic system that some Professionals in Healthcare (AOHP) publish establishment-specific accident employer may be using. Dow is not commented that ‘‘[c]onsideration should and injury and illness data. We believe aware of any web portal that is be given to a pilot to test the functioning that OSHA should consult with these compatible with SAP-based systems, of the Web site and the ease with which agencies to learn about design problems Excel spreadsheets, Adobe Acrobat, the data can be entered and submitted’’ and potential best practices to adopt Lotus Notes, Oracle, and the multitude (Ex. 0246). The California Department of before creating its database’’ (Ex. 1371). of other options for keeping electronic Industrial Relations (DIR), Office of the The International Brotherhood of records’’ (Ex. 1189). Director commented that ‘‘[c]urrent Teamsters provided a similar comment Several commenters also expressed OSHA guidelines for its forms are (Ex. 1381). specific concerns about the electronic simple, easy-to-use, and are low-literacy In response, OSHA intends to use data submission system’s compatibility friendly . . . Any electronic reporting submitter registration, which would with 301-equivalent forms. The U.S. system must balance the needs for enable OSHA to issue a unique ID for Poultry & Egg Association commented uniform, easy to process data with the reporting establishments. With user self- that ‘‘OSHA does not appear to realize simplicity that paper records provided’’ registration via an online submission that many employers do not actually use (Ex. 1395). form, the employer would have to the OSHA 301 Form. Instead, they use The Phylmar Regulatory Roundtable complete an online registration form an equivalent form, often for workers (PRR) commented that ‘‘[t]he Proposed (available from a link on the electronic compensation purposes. Presumably, Rule calls for two methods of submitting reporting system’s home/login page) to OSHA would require employers to data—use of online forms or batch obtain login information before gaining

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access to the new electronic reporting acknowledges in its Notice for this either access the online log or records to system for data submission. After the Proposed Rule that the present modify them or modify the enterprise user submitted the online registration recordkeeping rules require that database and resubmit it to the Web form, the user would receive a system- employers update their OSHA Form 300 site’’ (Ex. 1110). The AFL–CIO, the generated email confirming registration for five years. See 78 FR at 67271. Those International Warehouse Logistics and providing login information. updates will affect the forms described Association (IWLA), the International Registration for submission would be above which in turn would affect the Brotherhood of Teamsters, and the needed because, unlike under the ODI, accuracy of database entries. Thus, it is International Union (UAW) all provided employers required to submit data each not a question of whether employers similar comments (Exs. 1350, 1360, year under this final rule will not will need to update this information, 1381, 1384). The Puget Sound receive notification. Alternate account but rather a question of how they will Shipbuilders Association provided a registration and authentication do so’’ (Ex. 1396). comment that updates would be provisions may be provided for Several other commenters commented especially burdensome for certain electronic transmission of data. In that companies will look bad unfairly if establishments, such as those located on contrast, special OSHA data collections an injury or illness is later found to be sea vessels (Ex. 1379). under § 1904.41(a)(3) of this final rule non-work-related and updates are not The Dow Chemical Company will involve OSHA notifications to allowed. The National Marine commented that ‘‘[t]he system should affected employers. Manufacturers Association commented not be designed to accept updates. This that ‘‘it seems clear that companies will is because allowing updates is only half Updates for the Electronic Data be held accountable for recordable a step from requiring updates, and Submission System incidents where either the actual cause requiring updates would greatly In the preamble to the proposed rule, was not under the employer’s control or increase the burden of the rule .... if OSHA asked, ‘‘Should the electronic part of an employee’s work or it is later the Agency ever wishes to see whether data submission system be designed to discovered the injury was due to other an employer has made any updates, include updates? Section 1904.33(b) causes. Based on the proposal, once OSHA already has the authority to pose requires employers to update OSHA these incidents are recorded and that question to the employer—without Logs to include newly-discovered submitted to OSHA, NMMA imposing a universal obligation’’ (Ex. recordable injuries or illnesses and to understands that the reports cannot be 1189). show any changes that have occurred in amended. Both OSHA and the public The U.S. Chamber of Commerce the classification of previously-recorded would therefore have an inaccurate commented that updates would also be injuries and illnesses.’’ [78 FR 67271]. depiction of a company’s safety record’’ burdensome for OSHA, stating that ‘‘any There were many comments about the (Ex. 1217). The National Electrical suggestion that OSHA will be able to benefits of allowing updates in the Contractors Association (NECA), keep up with this insurmountable task electronic data submission system. Innovative Holdings of Iowa, Inc., and of maintaining an immediately Several commenters noted that the data the Association of Union Constructors accessible, accurate database is not would be inaccurate without updates, provided similar comments (Exs. 1125, credible’’ (Ex. 1396). The Pacific because more information about cases 1275, 1389). Maritime Association made a similar often becomes available over time, after Other commenters commented that comment (Ex. 1326). investigation (Exs. 1205, 1217, 1219, not allowing updates could lead to Finally, the Phylmar Regulatory 1275, 1326, 1327, 1331, 1355, 1358, underreporting of marginally work- Roundtable (PRR) suggested that the 1360, 1378, 1389, 1396, 1399, 1408). For related cases. United Parcel Service, Inc. benefits of updates might be example, the Pacific Maritime (UPS) commented that ‘‘[without insignificant overall, since ‘‘[f]or large, Association commented that ‘‘[i]t is updates] an employer would not want to established, legacy employers, many common for an employer to record an err on the side of placing questionable years of experience has shown that employee’s complaint at the time it is entries onto the log. There would be no while updates are required by law, they reported, prior to performing an mechanism for striking through this are usually of minor consequence and/ evaluation of whether an injury has data once it is publicly posted on or correction and rarely, if ever, reflect actually occurred or whether it is OSHA’s Web site. Rather than the rule a major and significant change in the indeed workplace related. However, promoting more revelations of injury safety performance of a company’’ (Ex. following an examination by a and illness data, it would likely result 1110). physician or consideration of the in less data in circumstances where Several commenters provided OSHA recordkeeping factors in Section 1904, questions remained regarding recording with suggestions about how to proceed recorded injuries regularly have to be of a case’’ (Ex. 1391). The International with the question of whether or not the removed or edited. The information Warehouse Logistics Association electronic data submission system submitted to OSHA and included on its (IWLA) provided a similar comment should include updates. The American database will be no different. (Ex. 1360). College of Occupational and Additionally, it is particularly There were also commenters who Environmental Medicine (ACOEM) troublesome that OSHA will base its opposed allowing updates. Several suggested that the system should allow enforcement and targeting efforts on this commenters believed that updates but not require updates. They information, while at the same time would be burdensome to employers. commented that ‘‘the accuracy of conceding that there may be no way to The Phylmar Regulatory Roundtable reported data could be optimized by update or amend information to ensure (PRR) commented that ‘‘updating permitting, though not requiring, that it is accurate. Accordingly, if OSHA quarterly submissions would be a major employers to update their data after proceeds with this rule, PMA believes burden to employers. Consider the time submission as new information becomes that it is imperative that this system be involved for a record keeper at one available about specific injuries, designed to allow for amendments’’ (Ex. establishment to communicate changes exposures, and diseases’’ (Ex. 1327). 1326). in status regarding particular injury The International Brotherhood of The U.S. Chamber of Commerce cases on a regular basis to someone in Teamsters and Thoron Bennett provided further commented that ‘‘OSHA an enterprise-level role who must then similar comments (Exs. 0035, 1381).

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Finally, the U.S. Chamber of Municipal Employees (AFSCME) a range of edit checks. Specifically, Commerce commented that ‘‘if OSHA provided a similar comment (Ex. 1103). OSHA will leverage and expand on form insists on pressing forward with a rule ORCHSE Strategies, LLC commented validation routines and validation of this type, it must start over and that OSHA should develop ‘‘a useful set checks that were developed and refined reintroduce a proposed rule with an of decision-making software to assist over the years for the ODI online adequate system for updating submitted users in making accurate recordkeeping submission version of OSHA Form data that stakeholders may meaningfully decisions. The current OSHA software 300A (Form 196B). Edit checks can consider and comment on’’ (Ex. 1396). does little more than summarize the text promote submission accuracy, for In response, OSHA agrees with the in the regulations. What is needed is instance by alerting the submitter when commenters who stated that allowing software that employers can use to input to a particular data field is outside updates but not requiring updates correctly answer their ‘‘what if’’ the expected range or in conflict with would improve the accuracy of the data questions’’ (Ex. 1339). other established parameters. The while limiting the burden on employers. The American College of Agency also plans to program the data Accurate data will help OSHA, Occupational and Environmental collection system so that, when the user researchers, employers, employees, and Medicine (ACOEM) commented that logs in, the system will recognize the the public in their efforts to improve OSHA could provide ‘‘an electronic tool user and display appropriate user- workplace safety and health. In for employers to self-check their specific information. For instance, for a addition, because the final rule requires submitted information for first-time user, the system may present annual submission of records for recordkeeping errors and for deviance links for appropriate submission options establishments with 250 or more from industry averages (Ex. 1327). The (e.g., annual summary data, special employees, rather than quarterly American Federation of Teachers (AFT) collections). For a return user, the submission as proposed in the NPRM, provided a similar comment (Ex. 1358). system may display a dashboard page employers will be able to update The American Federation of Teachers that shows recent submission history in information throughout the year before (AFT) also commented that ‘‘[t]he a tabular format, including links to they certify the 300A. Annual reporting agency could provide training through complete and draft (or in-process) also reduces the likelihood that consultation to employers on the submissions. From the dashboard, the employers will need to update importance and value of accurate user would be able to view a completed, information after reporting to OSHA. record-keeping. Training could also be executed form or continue with an in- Therefore, OSHA plans to design a provided to trade associations, labor progress submission. In this way, the reporting system that will allow but not unions and other advocacy groups on user will be able to prepare a require updates. the importance and value of submission over multiple user sessions encouraging employees to report their during the year before finalizing its Accuracy of the Collected and injuries and illnesses. As well, the Published Data submission to the Agency. agency might consider a special Finally, OSHA notes that, as In the preamble to the proposed rule, emphasis program of targeted discussed above, § 1904.32 already OSHA asked, ‘‘How can OSHA use the inspections for record-keeping. The requires company executives subject to electronic submission requirement to agency could target those part 1904 requirements to certify that improve the accuracy of injury and establishments with the highest rates as they have examined the annual illness records by encouraging careful well as the lowest rates to ascertain summary (Form 300A) and reasonably reporting and recording of work-related accuracy’’ (Ex. 1358). believe, based on their knowledge of the injuries and illnesses?’’ [78 FR 67271]. Finally, the Phylmar Regulatory process by which the information was Several commenters provided Roundtable (PRR) commented that ‘‘if recorded, that the annual summary is technical comments on ways for OSHA OSHA seeks to encourage careful, correct and complete. OSHA recognizes to improve the accuracy of injury and accurate reporting and recording of that most employers are diligent in illness records collected through injuries and illnesses, promulgating an complying with this requirement. electronic submission. As mentioned in annual submission requirement (versus However, a minority of employers is the previous section, many commenters quarterly) makes the most sense. less diligent; in recent years, one third commented that allowing updates could Companies will have the time to review or more of violations of § 1904.32, and improve the accuracy of collected data the quality of records, correct errors, up to one tenth of all recordkeeping (Exs. 1205, 1217, 1219, 1275, 1326, and obtain the approval of a senior (part 1904) violations, have involved 1327, 1331, 1355, 1358, 1360, 1378, company official before providing data this certification requirement. It is 1389, 1396, 1399, 1408). Rachel Armont to OSHA. Requiring quarterly OSHA’s hope that, if this minority of further commented that ‘‘[o]n the data submission and updating is overly employers knows that their data must be management side of things, perhaps burdensome for employers and likely to submitted to the Agency and may also [OSHA] could open up the site as a way result in more errors in the database, be examined by members of the public, to keep a real-time log of work-related leaving OSHA with information that is they may pay more attention to the injuries so it’s not a one-time less accurate’’ (Ex. 1110). requirements of part 1904, which could submission process’’ (Ex. 0198). As mentioned in the previous section, lead both to improvements in the The Council of State and Territorial OSHA agrees with the commenters who quality and accuracy of the information Epidemiologists (CSTE) commented that stated that allowing updates but not and to better compliance with § 1904.32. ‘‘[t]he proposed electronic collection of requiring updates would improve the In the preamble to the proposed rule, data, in the longer run, offers the accuracy of the data. Also as discussed OSHA also asked, ‘‘How should OSHA opportunity to provide employers with above, although the proposed rule design an effective quality assurance electronic tools (prompts, definitions, would have required quarterly reporting program for the electronic submission of consistency edits, and industry specific from companies with 250 or more injury and illness records?’’ [78 FR drop down lists) that have the potential employees, the final rule requires 67271]. to improve the quality of the data annual reporting. In addition, when Several commenters commented on reported’’ (Ex. 1106). The American OSHA develops the data collection how OSHA could design an effective Federation of State, County, and system, the Agency will also incorporate quality assurance program for the

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electronic submission of injury and different pieces of entered information track ongoing hazards by establishment, illness records. The Southern Poverty and compare the information to an enterprise and industry’’ (Ex. 1345). Law Center (SPLC) commented that expected value. These flags are then Andrew Sutton provided a similar OSHA could improve data quality by manually reviewed to assess the cause comment (Ex. 0245). ‘‘cross-checking [the data] with records of the flag; if EPA finds a potential error, There were also comments that kept in employers’ own medical staff’s EPA follows up with the reporter. The publication of this data would improve offices, with workers’ compensation GHGRP has given some consideration to the occupational safety and health records, and with any other available conducting on-site audits of reporting surveillance capacity of the United records’’ (Ex. 1388). facilities. States. The Council of State and The International Union (UAW) In addition, actions OSHA has taken Territorial Epidemiologists (CSTE) commented that ‘‘[j]oint union- in the past as part of data collection for commented that ‘‘OSHA’s proposal to management methods of validating data the ODI included running programmed electronically collect and make through computerized systems have routines that checked establishment available the data employers already proven effective and can serve as a submissions and then, based on results, record on work-related injuries and model for OSHA’s modernization’’ (Ex. assigned a submission status code illnesses would substantially enhance 1384). The American College of indicating whether the data submitted occupational health surveillance Occupational and Environmental passed the edits and was considered capacity in the United States’’ (Ex. Medicine (ACOEM) commented that usable or not usable. These routines 1106). The California Department of OSHA should ‘‘increase medical record were informed by routines the BLS used Industrial Relations (DIR), Office of the audits to assure accurate recordkeeping for the Survey of Occupational Injuries Director provided a similar comment and reporting’’ and ‘‘increase the and Illnesses. (Ex. 1395). number of targeted inspections of OSHA will form a working group with Several commenters also commented companies deviating (positively or BLS to assess data quality, timeliness, that publication of the data would negatively) from the industry—norm accuracy, and public use of the particularly help with identifying incident and DART rates’’ (Ex. 1327). collected data, as well as to align the emerging hazards (Exs. 1106, 1211, The American Federation of Teachers collection with the BLS SOII. 1327, 1330, 1347, 1371, 1382). For example, the Council of State and (AFT) provided similar comments (Ex. Categories of Information That Are Territorial Epidemiologists (CSTE) 1358). Useful To Publish The International Brotherhood of commented that publication of Teamsters commented that ‘‘OSHA may In the preamble to the proposed rule, establishment-level data ‘‘has the discuss [a quality assurance and audit OSHA asked, ‘‘Which categories of potential to facilitate timely program] with other government information, from which OSHA- identification of emerging hazards. agencies that may have such programs. required form, would it be useful to These include both new and newly They would include FMCSA (SMS), publish?’’ [78 FR 67271]. recognized hazards. A relatively recent MSHA and FRA, but could include OSHA received many comments case example is illustrative. In 2010, the other government agencies that receive about the benefits that would result Michigan Fatality Assessment and electronic records as well’’ (Ex. 1381). from publishing all of the information Control Evaluation program identified Finally, the Coalition for Workplace that OSHA collects, except for PII, three deaths associated with bath tub Safety (CWS) commented that OSHA including improved research and refinishing, raising new concern about should implement ‘‘error screening and analysis of injury and illness trends, hazards of chemical strippers used in follow-back procedures to correct and/ improved motivation for employers to this process . . . These findings led to or verify questionable data reported’’ provide safe workplaces, more the development of educational (Ex. 1411). information for employees and potential information about the hazards In response, OSHA plans to look at employees, more information for associated with tub refinishing and examples from other federal agencies. customers and the public, injury and approaches to reducing risks that was Two examples from the U.S. EPA are illness prevention, and various other disseminated nationwide to companies the Toxics Release Inventory (TRI) benefits. and workers in the industry’’ (Ex. 1106). Program and the Greenhouse Gas For improved research and analysis of For increased motivation for Reporting Program. The TRI Program, injury and illness trends, there were employers to provide safer workplaces, which collects data from a wide range many comments that publication of this there were several comments that of facilities nationwide, takes steps to information would allow employers, publication of the data would allow promote data quality, including workers, researchers, unions, and the companies to benchmark their safety analyzing data for potential errors, public to improve workplace safety by and health performance against similar contacting TRI facilities concerning providing the data for better research companies (Exs. 0241, 0245, 1106, 1126, potentially inaccurate submissions, and analysis of injury and illness trends 1278, 1327, 1341, 1358, 1371, 1381, providing guidance on reporting (Exs. 0245, 0254, 1110, 1203, 1207, 1387, 1393). For example, the American requirements and, as necessary, taking 1208, 1219, 1278, 1345, 1350, 1354, Industrial Hygiene Association (AIHA) enforcement actions against facilities 1371, 1380, 1381, 1387, 1388, 1393, commented that data publication that fail to comply with TRI 1395, 1424). For example, the United ‘‘should also enable employers to requirements. For the Greenhouse Gas Food & Commercial Workers benchmark against others in their Reporting Program, quality assurance International Union (UFCW) industry. The sharing of statistics could checks include evaluating submitted commented that publication of data also identify solid performers who data against an extensive array of would ‘‘enable the public, unions, might help others upgrade their electronic checks that ‘‘flag’’ potential employees, and other employers to processes and outcomes’’ (Ex. 1126). errors. For example, statistical checks search and analyze the data. Further, by Senator Tom Harkin made a similar are used to evaluate data from similar making the data available electronically comment (Ex. 1371). facilities and identify data that might be from OSHA, interested parties can much Michael Houlihan further commented outliers. Also, algorithm checks more easily analyze trends, assess that ‘‘the disclosure requirement may consider the relationships between effective health and safety programs and improve the performance of managers

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by drawing public attention to the assessing prospective contractors’ safety Several commenters commented that illness and injury rates at their performance’’ (Ex. 1371). data publication would make it easier facilities’’ (Ex. 1219). Peter Strauss, For prevention of workplace injuries for labor unions to access safety and Richard R, Sarah Wilensky, and Ashok and illnesses, NIOSH commented that health data when representing workers Chandran provided similar comments ‘‘electronically-collected and stored (Exs. 0245, 1209, 1350, 1381, 1387, (Exs. 0187, 1209, 1382, 1393). injury and illness data can be an asset 1424). For example, the AFL–CIO For more information for employees to establishments/employers for commented that ‘‘[i]t will assist unions and potential employees, there were planning prevention intervention in their efforts to collect injury and multiple comments that publication of activities’’ (Ex. 0216). The AFL–CIO illness information from employers to the data would allow employees to use made a similar comment (Ex. 1350). assess conditions in individual the data to make better decisions about The New York States Nurses workplaces and across employers and where to work (Exs. 0145, 1219, 1278, Association commented that ‘‘having industries where they represent 1327, 1341, 1350, 1371, 1395). For this data and information would greatly workers. Many unions already collect example, Worksafe commented that improve the ability to research trends this information under their rights of ‘‘electronic posting by OSHA of which may contribute to preventing and access under the recordkeeping rule. information related to fatality and injury mitigating workplace violence injuries’’ But currently, this information must be and illness incidents would allow (Ex. 0254). The AFL–CIO provided a requested and collected establishment individuals who may be considering similar comment (Ex. 1350). The United by establishment, making the collection employment to assess the types, Food & Commercial Workers and analysis of this data difficult and severity, and frequency of injuries and International Union (UFCW) time consuming and hindering illnesses of a particular firm or emphasized the role that labor unions prevention efforts’’ (Ex. 1350). The workplace’’ (Ex. 1278). Professor Sherry could play in such research, Council of State and Territorial Brandt-Rauf of the School of Public commenting that ‘‘[a]nalysis of the Epidemiologists (CSTE) commented Health at the University of Illinois at information can identify trends among about the benefits for community health and between companies, and at specific Chicago provided a similar comment planning, stating that ‘‘[t]he availability sites within one company . . . Plant (Ex. 1341). of establishment specific information management in one location may be Many commenters stated that data also offers a potential opportunity to using effective strategies that result in a incorporate occupational health publication would be especially helpful decrease in injuries and illnesses; these because employees would be able to get concerns in community health effective strategies can be passed on to planning, which is increasingly safety and health data from their sister plants in the same company. By workplace anonymously and without providing the basis for setting examining other establishments’ OSHA community health and prevention fear of retaliation (Exs. 1188, 1211, injury and illness data for those without priorities’’ (Ex. 1106). Finally, the 1278, 1345, 1381, 1387, 1388, 1393, declining injury rates, the [UFCW] has International Brotherhood of Teamsters 1424). For example, the Southern been able to target areas for improved commented that ‘‘[g]iven the difficulties Poverty Law Center commented that prevention strategies’’ (Ex. 1345). The that both union and non-union workers ‘‘[e]ven an employee’s simple request to Service Employees International Union face, and OSHA’s inability to fully view an OSHA 300 log might be met by (SEIU) provided a similar comment (Ex. enforce the 1904 rules, the public an employer in a dangerous, low-wage 1387). release of the data is actually industry such as poultry or meat The California Department of necessitated since it would allow processing with suspicion, threats, or Industrial Relations (DIR), Office of the workers to have a subsidiary role in even termination. Given these realities Director commented that the proposed ‘‘enforcing’’ those requirements’’ (Ex. in many American workplaces, any rule ‘‘would specifically help identify 1381). steps the Department takes to increase and abate workplace hazards by On the other hand, the Interstate workers’ access to records about health improving the surveillance of Natural Gas Association of America and safety in their own workplaces will occupational injury and illness. commented the ‘‘[i]njury and illness provide workers with better tools with Complete and accurate surveillance of data contained in 300–A Summaries is which to protect their bodies and their occupational injury and illness is the only information that may be useful, lives’’ (Ex. 1388). essential for informed policy decisions but this information is limited’’ (Ex. For more information for customers and for effective intervention and 1206). and the public, there were comments prevention programs’’ (Ex. 1395). The In response, OSHA agrees with the that publication of the data could help Council of State and Territorial commenters above who commented that customers and the public decide whom Epidemiologists (CSTE) provided a the benefits that would result from to do business with (Exs. 0248, 1114, similar comment (Ex. 1106). publishing all of the information that 1278, 1327, 1341, 1371, 1395). For There were also comments about OSHA collects, except for PII, include example, Worksafe commented that various other benefits of data improved research and analysis of ‘‘there are potential benefits for current publication. Lancaster Safety injury and illness trends, improved or potential suppliers, contractors for, Consulting, Inc. commented that motivation for employers to provide safe and purchasers of a firm’s goods or ‘‘[o]nline access to the injury and illness workplaces, more information for services. These parties would have the data will provide a means for employees and potential employees, opportunity to consider the information occupational safety and health (OSH) more information for customers and the in their business decisions, such as how professionals to reach out to companies public, and injury and illness a supplier’s injury and illness that are in apparent need of assistance prevention. experience would reflect on their own with their OSH programs’’ (Ex. 0022). There were also many comments that business’’ (Ex. 1278). Senator Tom The Council of State and Territorial publishing the data would not be Harkin also commented that data Epidemiologists (CSTE) and the beneficial for various reasons, including publication ‘‘may be of use not just to International Brotherhood of Teamsters the misleading nature of the published the public, but also by contracting provided similar comments (Exs. 1106, data and a focus on lagging instead of officers at federal agencies when 1381). leading indicators.

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For the misleading nature of the could take the injury and illness data practices that prevent injuries and published data, many commenters out of context, as they would not be fatalities’’ (Ex. 1204). However, the commented that the published data will privy to the details behind the injuries, Environmental, Health & Safety be misleading because the data do not the safety measures employers adopt, or Communications Panel (EHSCP) tell the whole story and do not provide any other relevant information related to commented that OSHA should promote any context (Exs. 0138, 0162, 0163, the circumstances of the injury or ‘‘a balance of leading and lagging 0171, 0174, 0179, 0181, 0188, 0189, illness’’ (Ex. 1397). The Puget Sound measures’’ to measure safety 0194, 0218, 0224, 0234, 0242, 0255, Shipbuilders Association also performance (Ex. 1331). The National 0256, 0258, 1084, 1090, 1091, 1092, commented that ‘‘[w]e are concerned Rural Electric Cooperative Association 1093, 1109, 1111, 1112, 1113, 1116, about the level of knowledge and (NRECA) provided a similar comment 1123, 1187, 1190, 1192, 1193, 1194, understanding the general public has (Ex. 1417). 1195, 1196, 1198, 1199, 1200, 1201, about OSHA recordable cases and Several commenters also commented 1204, 1205, 1206, 1210, 1214, 1215, believe it is very limited’’ (Ex. 1379). that the proposed rule could harm 1217, 1218, 1222, 1225, 1272, 1273, Finally, there were comments that workplace safety and health by shifting 1275, 1276, 1279, 1318, 1321, 1322, recordkeeping data collected under the employers’ focus from leading 1323, 1324, 1326, 1327, 1328, 1329, proposed rule would not improve indicators to lagging indicators (Exs. 1332, 1333, 1334, 1336, 1338, 1340, workplace safety and health since they 0027, 0157, 0163, 1109, 1124, 1194, 1342, 1343, 1349, 1355, 1356, 1359, are lagging indicators (Exs. 0163, 0250, 1204, 1372, 1389, 1406, 1408, 1410, 1360, 1363, 1364, 1365, 1368, 1370, 1194, 1279, 1342, 1363, 1389, 1408, 1416). For example, the American 1373, 1376, 1378, 1379, 1385, 1386, 1410) and that leading indicators are Society of Safety Engineers (ASSE) 1389, 1390, 1391, 1392, 1394, 1396, necessary to improve future workplace commented that ‘‘[p]ublic release of 1397, 1399, 1400, 1402, 1406, 1408, safety and health outcomes (Exs. 0027, numbers and rates of injuries by 1409, 1410, 1411, 1416, 1426). 0053, 0162, 0163, 0197, 1204, 1279, establishment will cause many For example, the Coalition for 1331, 1339, 1342, 1363, 1389, 1406, employers to use their resources to Workplace Safety (CWS) commented 1408, 1410, 1416, 1417). address ‘trailing,’ not ‘leading’ that ‘‘[t]he data that OSHA will collect For example, the Mechanical indicators . . . ASSE is concerned that and make publicly available is not a Contractors Association of America this proposal, and the additional reliable measure of an employer’s safety (MCAA) commented that ‘‘that lagging attention that a national database of record or its efforts to promote a safe indicators, such as OSHA Incidence injury rates and numbers will attract, work environment. Many factors outside Rates, are poor indicators of safety works against the professions’ [sic] years of an employer’s control contribute to performance. Many occupational safety of effort in moving workplace safety workplace accidents, and many injuries and health professionals share this towards ‘leading’ indicators’’ (Ex. 1204). that have no bearing on an employer’s belief. For example, The American The American Feed Industry safety program must be recorded. Data National Standards Institute’s (ANSI) Association made a similar comment about a specific incident is meaningless A10 Construction and Demolition (Ex. 1372). without information about the Operations Committee is currently In response, OSHA does not agree that employer’s injuries and illness rates working on a technical report to help the publishing of recordkeeping data over time as compared to similarly sized educate government agencies, under this final rule will be misleading companies in the same industry facing construction owners, and construction or that the public will misinterpret the the same challenges (even similar employers about the relative data. The recordkeeping data represent companies in the same industry may ineffectiveness of lagging indicators’’ real injuries and illnesses (injuries and face substantially different challenges (Ex. 1363). The National Association of illnesses that required more than first with respect to workplace safety based Manufacturers made a similar comment aid) that occurred at the workplace and on climate, topography, population (Ex. 1279). were recordable under part 1904. While density, workforce demographics, The National Association of Home they do not, by themselves, provide a criminal activity in the region, Builders (NAHB) commented that complete picture of workplace safety proximity and quality of medical care, ‘‘[l]eading indicators measure what‘s and health at that workplace, employers etc.)’’ (Ex. 1411). The National happening right now and may be a are free to post their own materials to Association of Manufacturers (NAM) better gauge of safety performance. The provide context and explain their provided a similar comment (Ex. 1279). leading indicators attempt [to] measure workplace safety and health programs. Many commenters also commented safety performance by utilizing tools In addition, when OSHA publishes the on a related concern that OSHA should such as tracking safe or unsafe behaviors data, the Agency will provide links to not publish the data since the public or workers, investigating near-miss resources, such as industry rates from will misinterpret the data (Exs. 0027, incidents, performing workplace audits BLS, to help the public put the 0143, 0152, 0159, 0160, 0189, 0197, and inspections, and conducting safety information in context. OSHA will also 0210, 0211, 0218, 0224, 0239, 0240, training’’ (Ex. 1408). include language explaining the 0242, 0251, 0253, 0255, 0256, 0258, The American Society of Safety definitions and limitations of the data, 1084, 1090, 1091, 1092, 1093, 1109, Engineers (ASSE) commented that as OSHA has done since the Agency 1111, 1112, 1113, 1123, 1124, 1125, ‘‘ASSE and other leading safety and began publishing establishment-specific 1191, 1192, 1194, 1197, 1199, 1200, health organizations have put injury and illness data from the OSHA 1205, 1210, 1214, 1215, 1217, 1218, considerable work into developing Data Initiative on its public Web site in 1224, 1225, 1272, 1273, 1275, 1276, resources and encouraging companies to 2009. For the published ODI data, 1279, 1322, 1326, 1327, 1329, 1332, move away from ‘trailing’ and towards OSHA has included the following 1333, 1334, 1336, 1338, 1340, 1343, ‘leading’ indicators for evaluating explanatory note on data quality: 1344, 1359, 1368, 1370, 1372, 1379, workplace safety. As OSHA itself ‘‘While OSHA takes multiple steps to 1389, 1391, 1396, 1397, 1399, 1400, knows, ‘trailing’ indicators focus an ensure the data collected is accurate, 1408, 1410, 1413, 1415, 1416). For organization on safety after the fact of an problems and errors invariably exist for example, the American Foundry Society injury or fatality. ‘Leading’ indicators a small percentage of establishments. commented that ‘‘[t]he public . . . better focus an organization on the best OSHA does not believe the data for the

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establishments with the highest rates on the forms to individuals other than the checks and are uploaded to an this file are accurate in absolute terms. government, employees, former analyzable database that is available to Efforts were made during the collection employees, and authorized the establishment via the web-portal in cycle to correct submission errors, representatives. OSHA does not seven to 10 days. The establishment can however some remain unresolved. It currently conduct a systematic use the online system to examine its would be a mistake to say collection of the information on the 300 injury patterns over time and to establishments with the highest rates on Log. compare its rates with other this file are the ‘‘most dangerous’’ or • Form 301 (Incident Report)—All establishments by size, region, type, and ‘‘worst’’ establishments in the Nation.’’ collected data fields on the right-hand other variables. In addition, the system Similarly, OSHA does not agree that side of the form (Fields 10 through 18) provides users with information on best the part 1904 recordkeeping data will will generally be made available. The practices for the industry, injury- not improve workplace safety and Agency currently occasionally collects reduction interventions, and other up- health due to being lagging indicators the form for enforcement case files. to-date health and safety information’’ instead of leading indicators. As stated OSHA generally releases these data in (Ex. 0216). The American College of above, the recordkeeping data represent response to FOIA requests. Section Occupational and Environmental real injuries and illnesses that occurred 1904.35(b)(2)(v)(B) prohibits employers Medicine (ACOEM) also commented at the workplace and were recordable. from releasing the information in Fields about the desirability of a tool similar to In addition, as stated above, employers 1 through 9 (the left-hand side of the the one that NIOSH is piloting (Ex. are free to post their own materials— form) to individuals other than the 1327). including leading indicators—to employee or former employee who The International Brotherhood of provide context and explain their suffered the injury or illness and his or Teamsters commented that ‘‘two of our workplace safety and health programs. her personal representatives. Similarly, employers use injury/illness tracking However, perhaps in a future OSHA will not publish establishment- systems to collect and record all OSHA- rulemaking related to recordkeeping, specific data from the left side of Form recordable occupational injuries/ OSHA might request information about 301. OSHA does not release data from illnesses. We would encourage OSHA to leading indicators, including which Fields 1 through 9 in response to FOIA provide tools that would bolster and leading indicators (if any) it would be requests. The Agency does not currently enhance employer efforts aimed at most useful to add to the injury and conduct a systematic collection of the preventing injuries and illnesses. These illness records employers are required information on the Form 301. However, tools could be useful to our membership to keep under part 1904. the Agency does review the entire Form as well, especially at establishments that As discussed above, OSHA intends to 301 during some workplace inspections have joint labor- management health make the data it collects public. The and occasionally collects the form for and safety committees’’ (Ex. 1381). publication of specific data elements inclusion in the enforcement case file. The International Association of will in part be restricted by applicable Note that OSHA will not collect or Industrial Accident Boards and federal law, including provisions under publish Field 1 (employee name), Field Commissions (IAIABC) commented that the Freedom of Information Act (FOIA), 2 (employee address), Field 6 (name of if OSHA ‘‘adopts an electronic reporting as well as specific provisions within treating physician or health care requirement, the IAIABC urges OSHA to part 1904. OSHA will make the provider), or Field 7 (name and address consider the benefits of using the following data from the various forms of non-workplace treating facility). IAIABC’s established First and available in a searchable online Subsequent Reports of Injury Standard database: Helping Employers, Employees, and (IAIABC EDI Claims Standard). • Form 300A (Annual Summary Potential Employees Use the Collected Implementation of an existing electronic Form)—All collected data fields will be Data standard would be much faster and made available. In the past, OSHA has In the preamble to the proposed rule, easier than developing a brand new collected these data under the ODI and OSHA asked, ‘‘What analytical tools electronic reporting protocol. The during OSHA workplace inspections could be developed and provided to IAIABC EDI Claims Standard fully and released them in response to FOIA employers to increase their ability to supports differing types of transactions requests. The annual summary form is effectively use the injury and illness including new reports, updates/ also posted at workplaces under data they submit electronically?’’ [78 FR corrections to previous submissions, § 1904.32(a)(4) and (b)(5). OSHA 67271]. and even has the capacity to limit what currently publishes establishment- There were several comments about data can be modified after it has been specific injury and illness rates analytical tools that could be developed submitted. Furthermore, the IAIABC calculated from the data collected and provided to employers to increase EDI Claims Standard includes an ‘upon through the ODI on OSHA’s public Web their ability to effectively use the injury request’ type of report which OSHA has site at http://www.osha.gov/pls/odi/ and illness data they submit indicated a potential need to support’’ establishment_search.html. The 300A electronically. NIOSH commented about (Ex. 1104). annual summary does not contain any their current pilot project that provides In response, OSHA notes that, in personally-identifiable information. employers with a tool to analyze their 2011, IAIABC and NIOSH signed a • Form 300 (the Log)—All collected safety and health data, stating, ‘‘NIOSH memorandum of understanding that data fields on the 300 Log will generally developed a web-portal and information outlined opportunities for collaboration, be made available on the Web site. system that accepts traumatic injury including utilizing workers’ Employee names will not be collected. data electronically, including the fields/ compensation data to identify emerging OSHA occasionally collects these data characteristics recorded on OSHA Form issues and trends in occupational safety during inspections as part of the 300 . . . Participating establishments and health. In addition, EPA’s Toxics enforcement case file. OSHA generally send all data voluntarily. The system Release Inventory (TRI) Program releases these data in response to FOIA does not accept personal data. provides a range of analytical tools that requests. Also, § 1904.29(b)(10) Establishments are not identified and include the TRI Pollution Prevention prohibits release of employees’ names comparison data are in aggregate form. (P2) Tool (users can explore and and personal identifiers contained in After receipt, the data undergo quality compare facility and parent company

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information on the management of toxic information) should be downloadable of the public who may not need or want chemical waste, including facilities’ (similar to American Fact Finder) for to download data and perform their own waste management practices and manipulation and statistical analysis. trends); TRI.NET (with this desktop calculations’’ (Ex. 1395). The AFL–CIO, Helping Small-Business Employers application, users can build customized Senator Tom Harkin, Change to Win, the Comply With Electronic Data TRI data queries, then map results and Service Employees International Union Submission Requirements overlay other data layers); and (SEIU), and the United Steelworkers Envirofacts (an online tool that provides provided similar comments (Exs. 1350, In the preamble to the proposed rule, access to all publicly available TRI data 1371, 1380, 1387, 1424). OSHA asked, ‘‘How can OSHA help in a searchable, downloadable format). Senator Harkin also commented that employers, especially small-business Related analytical tools that make use of OSHA’s ‘‘sister agency the Mine Safety employers, to comply with the TRI data include the DMR Pollutant and Health Administration (MSHA), requirements of electronic data Loading Tool (users can determine what along with other agencies like the submission of their injury and illness pollutants are being discharged into Federal Railroad Administration (FRA) records? Would training help, and if so, waterways and by which companies, and Federal Aviation Administration what kind?’’ [78 FR 67271]. and can compare DMR data search (FAA), currently publish establishment- There were five major issues results against TRI data search results) specific accident and injury and illness addressed by commenters about how to and Enviromapper (users can generate data. We believe that OSHA should help small employers comply with maps that contain environmental consult with these agencies to learn electronic data submission information, including TRI about design problems and potential requirements: General characteristics of information). Similarly, EPA’s GHGRP best practices to adopt before creating a system that would help small-business provides a number of online tools for its database’’ (Ex. 1371). The Service employers comply with electronic data mapping, charting, comparing, and Employees International Union (SEIU) submission requirements; capability for otherwise analyzing facility reported provided a similar comment (Ex. 1387). immediate feedback; connecting the data. Other commenters had other ideas. recordkeeping system with the reporting OSHA is considering including For example, the Council of State and system; training and outreach; and reporting capabilities in future versions Territorial Epidemiologists (CSTE) third-party capability. of the data collection system, so that commented that ‘‘[s]tandardized For general characteristics, several employers can view useful outputs from feedback to establishments and commenters commented that careful their submitted data (e.g., data potential reports of establishment overall design of its Web site and other visualizations of trends, data table specific data could be programmed that technical support could help employers, displays, reports with summary counts would promote use of the data by especially small-business employers, and statistics). The intention, in part, employers and workers to set health and comply with the requirements of will be to encourage employers to safety priorities and monitor progress in electronic data submission. The consider injury/illness trends at or reducing workplace risks’’ (Ex. 1106). Phylmar Regulatory Roundtable (PRR) across their establishment(s), so they The Building and Construction Trades commented that ‘‘the ‘user friendliness’ can abate hazards without prompting by Department, AFL–CIO commented that of the Web site will be the key to an OSHA intervention. ‘‘the data should be organized and made success for this electronic data In the preamble to the proposed rule, available in different formats for submission program. It should have an OSHA also asked, ‘‘How can OSHA help different data users. For example, an extensive and strong help menu, as well employees and potential employees use individual employee may be interested as a go-to phone number (as is currently the data collected under this proposed in the establishment for which he/she provided in the BLS data request) for rule?’’ [78 FR 67271]. works, while a researcher is more likely help with the system. A universal data There were various comments about to get statistics in general. Therefore, the language must be provided (e.g., XML) how OSHA could help employees and new data collection should include so that regardless of the platform used potential employees use the data multiple levels of data access to meet for recordkeeping, the information may collected under this rule. Many different needs’’ (Ex. 1346). easily be uploaded to OSHA’s Web site. commenters supported provision of the In response, when OSHA develops OSHA’s system must have sufficient data in a way that allows for easy the publicly-accessible Web site, the capacity and be robust enough to handle analysis of the information. For Agency will make the raw data available the massive quantities of data that example, the California Department of in multiple formats (after it has been 580,000 employers will be submitting Industrial Relations (DIR), Office of the scrubbed of PII) for use by employers, within roughly the same time frame’’ Director commented that ‘‘data sharing employees, researchers, and the public (Ex. 1110). The American needs to be timely, user-friendly, user- in evaluating opportunities to address Subcontractors Association provided a accessible, and searchable by common workplace safety and health. The similar comment (Ex. 1322). fields including geography (ideally to Agency may also provide reporting and For immediate feedback after data county level or smaller), employer, and analytics tools for employers to view submission, the Dow Chemical industry. Industry codes should be useful outputs from their submitted data Company commented that ‘‘OSHA is uniform and up-to-date. Posted data (e.g., data visualizations of trends, data proposing to require electronic reporting should ensure entity resolution and easy table displays, reports with summary by strict deadlines. It is therefore vitally searching by establishment name. counts and statistics). The intention, in important for employers to receive Multiple establishments that are the part, will be to encourage employers to immediate feedback as to whether their same company should be identifiable as consider injury/illness trends at or data entry was successful or a single company. Employees, across their establishment(s), so they unsuccessful. OSHA’s web portal employers, researchers, and community can abate hazards without prompting by should respond to each and every members all have different uses for the an OSHA intervention. The Agency attempt at data entry, by providing a data, and each should be taken into plans to provide similar tools on the confirmation of receipt or a account. The underlying data (once public Web site so that the data will be confirmation of failure. The cleaned of personally identifiable more useful and accessible to members confirmation notice should describe

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what was received (or not received) forward the information to the this new system. In the first year, all with sufficient detail to be useful in OSHA Web site’’ (Ex. 0243). establishments required to routinely resolving disputes in an enforcement In addition to the comments related to submit information under the final rule context’’ (Ex. 1189). The Phylmar the five major issues, some commenters will be required to submit only the Regulatory Roundtable (PRR) provided a commented with other ideas about how information from the Form 300A (by similar comment (Ex. 1110). OSHA could help small-business July 1, 2017). In the second year, all For connecting the recordkeeping and employers comply with the new establishments required to routinely reporting systems, the AFL–CIO requirements. The United Food & submit under the final rule will be commented that ‘‘[t]o assist smaller Commercial Workers International required to submit all of the required employers in reporting workplace injury Union (UFCW) commented that they information (by July 1, 2018). This and illness data electronically, it would support ‘‘making the new reporting means that, in the second year, helpful for OSHA to provide basic requirements as simple as possible . . . establishments with 250 or more software for workplace injury and In the UFCW’s experience, keeping the employees that are required to routinely illness recordkeeping from which the requests as simple as possible for all of submit information under the final rule data can be easily uploaded/reported to our employers (including those who fall will be responsible for submitting OSHA through a secure Web site as into the smaller business category), information from the Forms 300, 301, OSHA envisions’’ (Ex. 1350). Ashok results in greater data acquisition’’ (Ex. and 300A. In the third year, all Chandran provided a similar comment, 1345). In addition, some commenters establishments required to routinely suggesting that OSHA provide ‘‘a mobile included comments about a phase-in submit under this final rule will be application that employers could use to period being helpful to employers, required to submit all of the required submit their records’’ and ‘‘a web portal which were addressed above in information (by March 2, 2019). This that allows employers to enter data comments to Alternatives C and D (Exs. means that beginning in the third year directly’’ (Ex. 1393). 0210, 1104, 1322, 1401). (2019), establishments with 250 or more In response to these comments, when For outreach and training, the Allied employees will be responsible for OSHA develops the data collection Universal Corporation commented that submitting information from the Forms system, the Agency will make every ‘‘OSHA should also develop a training 300, 301, and 300A, and establishments effort to ensure ease of use with small- program [about the requirements of with 20–249 employees in an industry business employers in mind. To the electronic data submission], hosting listed in appendix A to subpart E of part extent possible, features will be webinars or similar events across the 1904 will be responsible for submitting incorporated to minimize the number of United States and reach out to many information from the Form 300A by keystrokes and mouse-clicks required to trade associations’’ (Ex. 1192). The March 2 each year. This will provide complete a form (e.g., pick-lists and sufficient time to ensure comprehensive International Association of Industrial widgets). Also, forms will be Accident Boards and Commissions outreach and compliance assistance in programmed to prefill establishment advance of implementation. (IAIABC) and the American information where appropriate (e.g., Subcontractors Association (ASA) establishment name and address from Scope of Data Collection provided similar comments (Exs. 1104, registration or prior submissions) as In the preamble to the proposed rule, 1322). well as to auto-calculate and/or carry OSHA asked, ‘‘Should this data Other commenters commented that totals over from associated forms (e.g., collection be limited to the records training on current OSHA requirements Form 300 column totals will auto- required under Part 1904? Are there would also be helpful. The California calculate and be programmed to pre- other required OSHA records that could Department of Industrial Relations populate Form 300A). Additional be collected and made available to the (DIR), Office of the Director commented functionality will be provided to help public in order to improve workplace that ‘‘many employers could benefit avoid some types of entry errors, (e.g., safety and health?’’ [78 FR 67271]. from outreach and education on how if column G [death] is selected, then Some commenters commented that and what to report, including reference disable controls for columns K [away OSHA should limit this rule to the to 29 CFR 1904.31, employees covered from work] and L [on job transfer/ collection of part 1904 data while by the OSHA recordkeeping standard’’ restriction]). making the rule flexible enough to allow (Ex. 1395). The Associated General In addition, OSHA plans to for the collection of other information in Contractors of America (AGC) provided incorporate as many helper features as the future. For example, the a similar comment (Ex. 1416). possible (e.g. help text, instruction International Brotherhood of Teamsters For third-party capability, Veriforce sheets, etc.) to guide users through the commented that ‘‘[t]his rule should be also commented that third-party data submission process. This limited to the 1904 data. However, electronic submission capabilities could information will be readily accessible OSHA should consider making this rule be helpful for employers. They from the collection system. Further, flexible enough to allow it to require commented that pipeline industry OSHA plans to implement an email/ reporting the other kinds of information contractors could be helped if ‘‘3rd phone help line for providing quick- in the future, particularly specific party companies with contractor response user support. records (such as employee exposure permission [could] electronically For third-party capability, if a small data) that are already required by upload [the contractor’s] data into the business, for instance, enlists a third- various OSHA standards. This would new OSHA Injuries and Illnesses party (e.g., a consultant) to act as its provide a better measure/indication of reporting Web site[.] It will become representative in submitting its injury/ health risks faced by workers. In more difficult for contractors to have to illness information to OSHA’s data addition, OSHA may also wish to continue to report electronically to 3rd collection system, the third-party would require employers to report other party companies and then now have to also provide their own contact records currently mandated under other enter the same information into this information on the submission system existing OSHA standards, such as new OSHA system when the 3rd party as a representative of the business. employer reports of incidents companies which have a contract with Finally, OSHA will phase in investigated under the Process Safety the contractor can just electronically implementation of the data collection Management (PSM) standard. The

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system should be designed to (g)(2) and 24 of the . . . OSH Act . . . None Casey, Representative George Miller, accommodate such expansions in the of these sections, however, provide OSHA and Representative Joe Courtney stated: with the statutory authority required to future’’ (Ex. 1381). Change to Win and When Congress passed the OSH Act, it the International Union (UAW) promulgate this Proposed Rule. Each of these sections upon which OSHA expressly stated that the purpose of the law provided similar comments (Exs. 1380, relies states that the information that OSHA was ‘to assure so far as possible every 1384). is empowered to collect is for the use of the working man and woman in the Nation safe The American College of Secretary of Labor and the Secretary of and healthful working conditions.’ 29 U.S.C. Occupational and Environmental Health and Human Services . . . 651(b). In order to effectuate this purpose, the Medicine (ACOEM) also commented Conspicuously absent from these provisions Secretary of Labor was given the authority to about the collection of more data in the is any mention, let alone express or implied issue regulations ‘requiring employers to authority, that OSHA may create an online maintain accurate records of, and to make future, stating that ‘‘[OSHA should] periodic reports on, work-related deaths, database meant for the public dissemination collaborate with the Bureau of Labor injuries and illnesses.’ 29 U.S.C. 657(c)(2). of an employer’s injury and illness records Statistics and The Council for State and Additionally, the Secretary ‘shall develop containing confidential and proprietary Territorial Epidemiologists to publicize and maintain an effective program of information. Had Congress envisioned or collection, compilation, and analysis of a broader suite of occupational health intended that the Secretary of Labor would occupational safety and health statistics.’ 29 indicators, which, taken together, would have the authority to publish this U.S.C. 673(a). provide a better picture of the true information it surely would have so It is clear from the plain language of the burden of occupational safety and provided. But of course, it did not and has OSH Act that Congress intended for OSHA to not. (Ex. 1396) health in the United States’’ (Ex. 1327). acquire and maintain accurate records from However, the Phylmar Regulatory The National Association of employers regarding workplace injuries and Roundtable (PRR) commented that ‘‘data illnesses for the purpose of protecting collection should be limited to the Manufacturers commented that Section 8(g)(1) of the OSH Act specifically and workers’ safety and health. This proposed records required under Part 1904’’ (Ex. rule not only improves upon the current 1110). uniquely limits the information OSHA system of reporting and tracking injuries and OSHA agrees that the scope of the may publish to information that is illnesses, it further strengthens the ability of final rule should be the same as the ‘‘‘compiled and analyzed.’ This does not OSHA to live up to its statutory mandate to scope of the proposed rule and include mean that OSHA can publish raw data ensure that workers have healthy and safe only the records required under part from employer injury and illness workplaces . . . 1904. While OSHA notes some records, but rather that it can compile We agree with OSHA’s proposal to post information, analyze it, and then reported injury and illness data online so that advantages for the collection of other employees, employers, researchers, data, the Agency believes that it did not publish its analysis of the information in either summary or detailed form’’ consumers, government agencies, and other receive enough information on this interested parties have easy access to that issue during this rulemaking to include (Ex. 1279). important information. This increased access such a requirement in the final rule. NAM also commented that while the to injury and illness data will allow However, OSHA is open to considering OSH Act does explicitly give OSHA the employers to measure themselves against additional data collection ideas for authority to release some information, other employers’ safety records so they know future rulemakings. the Act does not expressly permit the when they need to make improvements. public release of recordkeeping data: Employees will similarly have greater OSHA’s Statutory Authority To knowledge about the hazards in their Promulgate This Final Rule Section 8(c)(2) merely grants the Secretary workplace and their employer’s previous the authority to promulgate regulations health and safety history . . . (Ex. 1371). Several commenters stated that OSHA requiring employers to maintain injury and lacks the statutory authority under the illness records. Nothing in this section Additionally, Ashok Chandran OSH Act to make raw injury and illness expressly grants authority for the public commented, ‘‘The proposed regulation data available to the general public (Exs. dissemination of such information. 29 U.S.C. in no way expands the substantive 0218, 0224, 0240, 1084, 1093, 1123, 657(c). information employers must provide to 1198, 1218, 1225, 1272, 1279, 1332, Moreover, had Congress intended to make OSHA. 29 CFR 1904 already requires 1336, 1342, 1344, 1356, 1359, 1360, such information available to the public they employers to report injuries resulting in know how to do so. In various other sections 1372, 1385, 1393, 1394, 1396, 1404, death, loss of consciousness, days away of the OSH Act Congress explicitly granted from work, restriction of work, transfer 1408, 1411, 1412). These commenters authority requiring that other types of records acknowledged that Sections 8 and 24 of be made available to the public. For example, to another job, medical treatment other the OSH Act provide the Secretary of section 12(g) requires the U.S. Occupational than first aid, or diagnosis of a Labor with authority to issue regulations Safety and Health Review Commission significant injury or illness by a requiring employers to maintain records to be made publicly available. 29 physician or other licensed health care accurate records of work-related injuries U.S.C. 661(g). U.S. v. Doig, 950 F.2d 411, professional. For over 40 years now, and illnesses. However, according to 414–15 (1991) (‘‘Where Congress includes OSHA has been collecting injury reports these commenters, nothing in the OSH particular language in one section of a statute without incident. Thus any challenges but omits it in another section of the same to the legality of this data collection Act authorizes OSHA to publish Act, it is generally presumed that Congress establishment-specific injury and illness must fail’’ (Ex. 1393). acts intentionally and purposely in the OSHA believes that the OSH Act records outside the employer’s own disparate inclusion or exclusion’’) (internal workplace. citation omitted). (Ex. 1279). provides statutory authority for OSHA The U.S. Chamber of Commerce to issue this final rule. As explained in commented: In contrast, several commenters stated the Legal Authority section of this that the OSH Act does provide OSHA preamble, the following provisions of A fundamental axiom of the regulatory with authority to issue this final rule process is that an agency must have statutory the OSH Act give the Secretary of Labor authority for any rule which it wishes to (Exs. 1208, 1209, 1211, 1219, 1371, broad authority to issue regulations that promulgate. See, Am Library Ass’n v. FCC, 1382, 1424). Specifically, OSHA address the recording and reporting of 406 F.3d 689, 708 (D.C. Cir. 2005) . . . OSHA received comments from four members occupational injuries and illnesses. has stated that it has authority for this of Congress on this issue. A letter signed Section 2(b)(12) of the Act states that Proposed Rule under sections 8 (c)(1), (c)(2), by Senator Tom Harkin, Senator Robert one of the purposes of the OSH Act is

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to ‘‘assure so far as possible . . . safe purpose, a regulation promulgated rule will lead to more accurate and and healthful working conditions . . . under such authority is valid ‘‘so long complete occupational injury and by providing for appropriate reporting it is reasonably related to the enabling illness records. procedures . . . which will help legislation.’’ Morning v. Family OSHA further notes that, contrary to achieve the objective of th[e] Act and Publication Service, Inc., 441 U.S. 356, comments made by some commenters, accurately describe the nature of the 359 (1973). and as explained elsewhere in this occupational safety and health The Supreme Court recognizes a preamble, the final rule will not result problem.’’ 29 U.S.C. 651(b)(12). ‘‘familiar canon of statutory in the publication of raw injury and Section 8(c)(1) requires each employer construction that remedial legislation illness recordkeeping data or the release to ‘‘make, keep and preserve, and make should be construed broadly to of records containing personally available to the Secretary . . . such effectuate its purposes.’’ Tcherepnin v. identifiable information or confidential records . . . prescribe[d] by regulation Knight, 389 U.S. 332, 336 (1967). And commercial and/or proprietary as necessary or appropriate for the reading the statute in light of its information. The release or publication enforcement of th[e] Act or for protective purposes further supports the of submitted injury and illness developing information regarding the Secretary’s interpretation that the Act recordkeeping data will be conducted in causes and prevention of occupational calls for electronic submission and accordance with applicable federal law. accidents and illnesses.’’ 29 U.S.C. publication of injury and illness (See discussion below). 657(c)(1). The authorization to the recordkeeping data. See, e.g., United Secretary to prescribe such States v. Advance Mach. Co., 547 Constitutional Issues recordkeeping regulations as he F.Supp. 1085 (D.Minn. 1982) The First Amendment considers ‘‘necessary or appropriate’’ (requirement in Consumer Product Some commenters stated that the emphasizes the breadth of the Safety Act to ‘‘immediately inform’’ the proposed rule would violate the First Secretary’s discretion in implementing government of product defects is read as Amendment of the U.S. Constitution the OSH Act. Section 8(c)(2) further creating a continuing obligation to because it would force employers to provides that the ‘‘Secretary . . . shall report because any other reading would submit their confidential and prescribe regulations requiring frustrate the statute’s goal of protecting proprietary information for publication employers to maintain accurate records the public from hazards). In addition, on a publicly available government of, and to make periodic reports on, injury and illness records ‘‘are a online database (Exs. 1360, 1396). These work-related deaths, injuries and cornerstone of the Act and play a crucial commenters noted that the First illnesses.’’ 29 U.S.C. 657(c)(2). role in providing the information Amendment protects both the right to Section 8(g)(1) authorizes the necessary to make workplaces safer and speak and the right to refrain from Secretary ‘‘to compile, analyze, and healthier.’’ Sec’y of Labor v. Gen. Motors publish, whether in summary or speaking. Corp., 8 BNA OSHC 2036, 2041 (Rev. The U.S. Chamber of Commerce detailed form, all reports or information Comm’n 1980). commented: obtained under this section.’’ Section OSHA notes that not only are such 8(g)(2) of the Act generally empowers recordkeeping regulations expressly While OSHA’s stated goal of using the the Secretary ‘‘to prescribe such rules called for by the language of Sections 8 information it collects from employers ‘‘to and regulations as he may deem and 24, but they are also consistent with improve workplace safety and health,’’ 78 FR at 67,254, is unobjectionable, ‘‘significant necessary to carry out his Congressional intent and the purpose of encroachments on First Amendment rights of responsibilities under th[e] Act.’’ 29 the OSH Act. The legislative history of the sort that compelled disclosure imposes U.S.C. 657(g)(2). the OSH Act reflects Congress’ concern cannot be justified by a mere showing of Section 24 contains a similar grant of about harm resulting to employees in some legitimate governmental interest.’’ regulatory authority. Section 24(a) states workplaces with incomplete records of Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per that ‘‘the Secretary . . . shall develop occupational injuries and illnesses. curiam). Instead, where the government seeks and maintain an effective program of Most notably, a report of the Senate to require companies to engage in the type of collection, compilation and analysis of Committee on Labor and Public Welfare speech proposed here, the regulation must occupational safety and health statistics stated that ‘‘[F]ull and accurate meet the higher standard of strict scrutiny: . . . [and] shall compile accurate Meaning that it must be narrowly tailored to information is a precondition for promote a compelling governmental interest. statistics on work injuries and meaningful administration of an See United States v. Playboy Entm’t Grp., illnesses.’’ 29 U.S.C. 673(a). Section occupational safety and health Inc., 529 U.S. 803, 819 (2000). 24(e) provides that ‘‘[o]n the basis of the program.’’ S. Rep. No. 91–1282, at 16 Once subjected to strict scrutiny, the records made and kept pursuant to (1970), reprinted in Subcomm. on Labor publication provision of this Proposed Rule section 8(c) of th[e] Act, employers shall of the Comm. on Labor and Public must fail because it is not narrowly tailored file such reports with the Secretary as Welfare, Legislative History of the towards accomplishing a compelling he shall prescribe by regulation, as Occupational Safety and Health Act of government interest. See Playboy, 529 U.S. at necessary to carry out his functions 1970, at 156 (1971). Additionally, a 819. Under the narrow tailoring prong of this analysis, the regulation must be necessary under th[e] Act.’’ 29 U.S.C. 673(e). report from the House of towards accomplishing the government’s OSHA has made the determination Representatives shows that Congress interest. See, e.g., Republican Party of Minn. that the provisions in this final rule recognized ‘‘comprehensive [injury and v. White, 536 U.S. 765, 775 (2002) (‘‘[T]o requiring electronic submission and illness] reporting’’ as playing a key role show that the [requirement] is narrowly publication of injury and illness in ‘‘effective safety programs.’’ H.R. Rep. tailored, [the government] must demonstrate recordkeeping data are ‘‘necessary and No. 91–1291, at 15 (1970), reprinted in that it does not ‘unnecessarily circumscrib[e] appropriate’’ for the enforcement of the Subcomm. on Labor of the Comm. on protected expression.’’’ (fourth alteration in OSH Act and for gathering information Labor and Public Welfare, Legislative original) (quoting Brown v. Hartlage, 456 U.S. regarding the causes or prevention of History of the Occupational Safety and 45, 54 (1982))). occupational accidents or illnesses. Health Act of 1970, at 845 (1971). As On the other hand, Logan Gowdey Where an agency is authorized to explained elsewhere in this preamble, commented that recordkeeping data has prescribe regulations ‘‘necessary’’ to the electronic submission and been collected by OSHA in the past implement a statutory provision or publication requirements of the final through the OSHA Data Initiative (ODI).

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He adds, ‘‘Furthermore, if there were a workplace injury and illness records is Moreover, the final rule is limited in realistic claim to be made of First reasonably related to the government’s scope and leaves OSHA with limited Amendment grounds, it surely would interest in assuring ‘‘so far as possible discretion. The recordkeeping have been made against the EPA in every working man and woman in the information required to be submitted is relation to the Toxic Release Inventory Nation safe and healthful working highly relevant to accomplishing (TRI) program, where toxic releases are conditions.’’ 29 U.S.C. 651(b). The OSHA’s mission. The submission of published and include business names, remainder of the Chamber’s comment recordkeeping data is accomplished far more ‘speech’ than will be required deals with ‘‘essential rights’’ that do not through remote electronic transmittal, under this rule.’’ (Ex. 1211). encompass an employer’s minimal without any intrusion of the employer’s In response, OSHA disagrees with the interest in non-disclosure of purely premises by OSHA, and is not unduly Chamber’s comment that this factual and uncontroversial information. burdensome. Also, all of the injury and rulemaking violates the First illness information required to be The Fourth Amendment Amendment. OSHA notes that, contrary submitted is taken from records to the Chamber’s comment, the decision The U.S. Chamber of Commerce employers are already required to in Buckley v. Valeo only applies to commented that, while OSHA create, maintain, post, and provide to campaign contribution disclosures, and addressed some issues related to the employees, employee representatives, does not hold that other types of Fourth Amendment to the U.S. and government officials upon request, disclosure rules are subject to the strict Constitution in the preamble to the which means the employer has a scrutiny standard. See, 42 U.S. 1, 64 proposed rule, the Agency neglected to reduced expectation of privacy in the (reasoning that campaign contribution consider other issues. Specifically, the information. disclosures ‘‘can seriously infringe on Chamber stated that: With respect to the issue of privacy of association and belief The Notice for this Proposed Rule cites enforcement, OSHA disagrees with the guaranteed by the First Amendment’’). several cases that OSHA asserts confirm that Chamber’s Fourth Amendment Later cases also clarify that disclosure the requirement to report injury and illness objection that the Agency will target requirements only trigger strict scrutiny records comports with the Fourth employers ‘‘for any reason’’ simply ‘‘in the electoral context.’’ See, John Doe Amendment’s prohibition against because they submit injury and illness No. 1 v. Reed, 561 U.S. 186, 196 (2010). unreasonable searches and seizures. 78 FR at data. Instead, OSHA plans to continue In Zauderer v. Office of Disciplinary 67,255–56. In making this preemptive defense, however, OSHA has neglected to the practice of using a neutral-based Counsel, 471 U.S. 626, 653 (1985), the address the more pressing Fourth scheme for identifying industries for Supreme Court upheld Ohio state rules Amendment problem with this Proposed closer inspection. More specifically, the requiring disclosures in attorney Rule: That OSHA’s use of the information Agency will use the data submitted by advertising relating to client liability for collected for enforcement purposes will fail employers under this final rule in the court costs. The Court declined to apply to constitute a ‘‘neutral administrative same manner OSHA has used data from the more rigorous strict scrutiny scheme’’ and will thus violate the Supreme the ODI over the last 15 years. In the standard, because the government was Court’s holding in Marshall v. Barlow’s Inc., past, OSHA’s Site-Specific Targeting not attempting to ‘‘prescribe what shall 436 U.S. 307 (1978). (SST) program and Nursing Home and be orthodox in politics, nationalism, Additionally, the Chamber stated that Recordkeeping National Emphasis religion, or other matters of opinion or the raw data to be collected under the Programs (NEPs) all used establishment- force citizens to confess by word or act proposed rule would fail to provide any specific injury and illness rates as their faith therein.’’ 471 U.S. 626, 651. defensible neutral predicate for selection criteria for inspection. In the Because it concluded the disclosure at enforcement decisions: ‘‘Under this future, OSHA plans to analyze the issue would convey ‘‘purely factual and Proposed Rule, OSHA will be able to recordkeeping data submitted by uncontroversial information,’’ the rule target any employer that submits a employers to identify injury and illness only needed to be ‘‘reasonably related to reportable injury or illness for any trends and make appropriate decisions the State’s interest in preventing reason the agency chooses, or for no regarding enforcement efforts. deception of consumers.’’ Id. Recently, reason at all, under this unlimited OSHA also notes that the Agency in American Meat Institute v. U.S. Dept. discretion it has sought to grant itself to currently uses establishment-specific of Agriculture, the U.S. Court of Appeals ‘identify workplaces where workers are fatality, injury, and illness reports for the DC Circuit held that the at great risk’ ’’ See, 78 FR 67,256.’’ (Ex. submitted by employers under Section Zauderer case’s ‘‘reasonably related’’ 1396). 1904.39 to target enforcement and test is not limited to rules aimed at In response, OSHA notes that compliance assistance resources. As preventing consumer deception, and Barlow’s concerned the question of with the SST and NEP programs, a applies to other disclosure rules dealing whether OSHA must have a warrant to neutral-based scheme is used to identify with ‘‘purely factual and inspect a worksite if the employer does which establishments are inspected and uncontroversial information.’’ 760 F.3d not give consent. Section 1904.41 of this which fall under a compliance 18, 22 (D.C. Cir. 2014) (finding that the final rule involves electronic assistance program. Accordingly, speakers’ interest in non-disclosure of submission of injury and illness OSHA’s targeting of employers for such information is ‘‘minimal’’); see recordkeeping data; no entry of inspection will not be arbitrary or also NY State Restaurant Ass’n v. NYC premises or compliance officer decision- unconstitutional under the Fourth Bd. Of Health, 556 F.3d 114, 133 (2d making is involved. Thus, the Barlow’s Amendment. Cir. 2009) (accord), Pharmaceutical Care decision provides very little support for Mgmt. Ass’n v. Rowe, 429 F.3d 294, 310 the commenter’s sweeping Fourth Due Process (1st Cir. 2005) (accord). Amendment objections. See, Donovan v. Two commenters raised concerns This final rule only requires Lone Steer, Inc., 464 U.S. 408, 414 about the proposed rule potentially disclosure of purely factual and (1984) (reasonableness of a subpoena is violating an employer’s due process uncontroversial workplace injury and not to be determined on the basis of protection under the Fifth Amendment illness records that are already kept by physical entry law, because subpoena of the U.S. Constitution. (Exs. 0245, employers. The rule does not violate the requests for information involve no 1360). Andrew Sutton commented First Amendment because disclosure of entry into nonpublic areas). ‘‘There is the possibility of a substantial

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due process claim lurking here. It is the posting, without notice or hearing, employee’s injury or illness meets one long settled law that ‘‘where a person’s of the names of individuals who had or more of the recording criteria. This good name, reputation, honor, or exhibited specified traits, such as regulation also allows employers to integrity is at stake because of what the becoming ‘‘dangerous to the peace of the revise an entry simply by lining it out government is doing to him, notice and community,’’ after consuming excessive or amending it if further information an opportunity to be heard are essential. amounts of alcohol. The Supreme Court justifying the revision becomes Wisconsin v. Constantineau, 400 U.S. held that because the posting of such available. Accordingly, OSHA believes 433, 437 (1971). But whether the same information would result in harm to an that the existing seven-calendar-day due process protections are warranted individual’s reputation, procedural due requirement provides employers with when government action threatens a process requires notice and an sufficient time to receive information business’ goodwill is less clear’’ (Ex. opportunity to be heard. 400 U.S. 433 at and record a case. OSHA has resources, 0245). 436–437. including information on its Web site at The International Warehouse In this circumstance, however, OSHA www.osha.gov/recordkeeping designed Logistics Association commented that disagrees that the mere posting of injury to assist employers in the accurate the proposed rule would deny their and illness recordkeeping data on a recording of injuries and illnesses. members the right to due process: publicly available Web site will Additionally, as explained elsewhere adversely impact an employer’s Citations will no doubt be issued under in this document, unlike the proposed this standard for failures to report arguably reputation. As the Note to § 1904.0 of rule, the final rule does not require work related injuries and illnesses OSHA’s recordkeeping regulation makes employers to submit their injury and accurately. Since the data reported will be clear, the recording or reporting of a illness data to OSHA on a quarterly published by OSHA, there will be a work-related injury, illness, or fatality basis. The final rule’s requirement for presumption of guilt attached to those injury does not mean that an employer or the electronic submission of reports. The proposed rulemaking employee was at fault, that an OSHA recordkeeping data on an annual basis acknowledges that this reporting may result rule has been violated, or that the in prospective employees and customers should reduce the burden on all employee is eligible for workers’ employers when they make decisions on shunning businesses who report injuries and compensation or other benefits. OSHA illnesses, so clearly the Department whether to record certain cases. contemplates that the reported injuries create currently publishes establishment- a presumption of guilt. Therefore, in every specific information on its Web site Administrative Issues case where the employer is faced with an about reported work-related fatalities Public Meeting injury or illness that is not clearly and hospitalizations. [http:// recordable—and that is often the case— www.osha.gov/dep/fatcat/dep_ A few commenters disagreed with OSHA will violate an employer’s right to due fatcat.html]; establishment-specific OSHA’s decision to hold an informal process under the Fifth Amendment of the injury and illness rates calculated from public meeting for this rulemaking. United States Constitution. This violation of the ODI [http://www.osha.gov/pls/odi/ (Exs. 1332, 1396). Instead, these employer due process rights will result from establishment_search.html]; and OSHA commenters recommended that, the mandatory recording of injuries and considering both the burden on illnesses within six days of their occurrence routinely publishes information about citations issued to employers for employers and the far-reaching and their subsequent mandatory electronic implications of publishing confidential reporting. The employer will be subjected to violations of OSHA standards and citation for failing to report questionable regulations. [http://www.osha.gov/ information, OSHA should have held a alleged injuries and illnesses, on the one oshstats/index.html]. Also, other formal public hearing pursuant to the hand, and will face the prospect of losing agencies post establishment-specific Administrative Procedure Act (APA). customers by reporting, on the other. Given health and safety data. For example, the OSHA disagrees with these the prospect of the reported injury and Mine Safety and Health Administration comments. The recordkeeping illness data being published by OSHA, the (MSHA) publishes coded information requirements promulgated under the proposed rule does not provide a reasonable OSH Act are regulations, not standards. time frame for the employer to conduct an about each accident, injury or illness reported to MSHA. The Federal Railroad Therefore, this rulemaking is governed adequate evaluation of its legal obligations by the notice and comment and exposures with respect to each case. Administration (FRA) posts And, in each such case, it will be faced with headquarters-level Accident requirements in the APA (5 U.S.C. 553) the catch-22 of either losing customers or Investigation Reports filed by railroad rather than Section 6 of the OSH Act (29 employees or facing civil penalties. This carriers. OSHA also notes that U.S.C. 655) and 29 CFR part 1911. evaluation and decision will have to be made employers have been given notice and Section 6(b)(3) of the OSH Act (29 four times per year and will be particularly an opportunity to comment through this U.S.C. 655(b)(3)) and 29 CFR 1911.11, onerous in the case of injuries and illnesses rulemaking process. both of which state the requirement for that occur in the third month of each quarter With respect to the issue of whether OSHA to hold a public hearing on (Ex. 1360). employers have adequate time to record proposed rules, only apply to In response, OSHA disagrees with and report injuries and illnesses, promulgating, modifying or revoking commenters who suggested that this § 1904.29(b)(3) of OSHA’s occupational safety and health rulemaking will violate an employer’s recordkeeping regulation provides that ‘‘standards.’’ right to due process under the Fifth employers must enter each recordable Section 553 of the APA, which Amendment. The due process clause of injury or illness on the OSHA 300 Log governs this rulemaking, does not the Fifth Amendment provides that no and 301 Incident Report within seven require a public hearing; instead, it person shall be ‘‘deprived of life, liberty, (7) calendar days of receiving states that the agency must ‘‘give or property, without due process of information that a recordable injury or interested persons an opportunity to law.’’ The case cited above by the illness has occurred. In the vast majority participate in the rulemaking through commenter, Wisconsin v. of cases, employers know immediately submission of written data, views, or Constantineau, involved the posting of or within a short time that a recordable arguments with or without opportunity notices in liquor stores forbidding the case has occurred. In a few cases, for oral presentation’’ (5 U.S.C. 553(c)). sale of liquor to designated individuals however, it may be several days before As discussed elsewhere in this for one year. A state statute provided for the employer is informed that an document, OSHA held a public meeting

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for this rulemaking on January 9 and 10, orders, action plans, memoranda, etc., Act (FOIA) 5 U.S.C. 552. (Exs. 1207, 2014. OSHA believes that interested which espouses enhanced principles of 1214, 1279, 1382, 1396). Some of these parties had a full and fair opportunity open government, transparency and commenters claimed that the proposed to participate in the rulemaking and greater access to information. rule was ‘‘arbitrary’’ and ‘‘capricious’’ comment on the proposed rule. OSHA Two commenters stated that the Open under the Administrative Procedures also believes that the written comments Government Initiative does not support Act (APA), 5 U.S.C. 706(2)(A), because submitted during this rulemaking, as publication of private establishment OSHA has taken a different position well as the information obtained during records (Exs. 1328, 1411). The National during FOIA litigation. The U.S. the public meeting, greatly assisted the Retail Federation (NRF) commented, Chamber of Commerce commented, ‘‘On Agency in developing the final rule. ‘‘OSHA has inappropriately relied on numerous occasions, OSHA has asserted that the very information that it now Advisory Committee on Construction President Obama’s ‘Open Government’ seeks to publish on the internet should Safety and Health (ACCSH) initiative to support public disclosure of injury and illness records. The not be made public because it includes The National Association of Home Administration’s intention and purpose confidential and proprietary business Builders commented that OSHA must in issuing the Open Government information. See, e.g., New York Times seek input from the Advisory initiative is to foster transparency in Co. v. U.S. Dep’t of Labor, 340 F. Supp. Committee on Construction Safety and government actions. The Obama ‘Open 2d 394 (S.D.N.Y. 2004); OSHA Data/ Health (ACCSH) during this rulemaking: Government’ initiative relates in no way CIH, Inc. v. U.S. Dep’t of Labor, 220 ‘‘NAHB strongly urges OSHA to seek to industry data collected by an agency. F.3d 153 (3d Cir. 2000). Indeed, as input from ACCSH to better understand Accordingly, the NRF is disappointed recently as 2004, Miriam McD. Miller, the impacts and consequences of its that OSHA is attempting to rely on this OSHA’s Co-Counsel for Administrative proposal’’ (Ex. 1408). initiative as justification for its proposal Law, stated in a sworn declaration that In response, and as pointed out by to make private employer information the information contained in what now NAHB in their comments, ACCSH is a generally available to the public’’ (Ex. constitutes OSHA’s Forms 300, 300A, continuing advisory body established 1328). The Coalition for Workplace and 301 ‘‘is potentially confidential under Section 3704, paragraph (d), of Safety (CWS) provided a similar commercial information because it the Contract Work Hours and Safety comment (Ex. 1411). corresponds with business Standards Act (40 U.S.C. 3701 et seq., In response, OSHA notes that in the productivity.’’Decl. of Miriam McD. commonly known as the Construction Memorandum on Transparency and Miller ¶ 5, New York Times Co. v. U.S. Safety Act), to advise the Secretary of Open Government, issued on January Dep’t of Labor, 340 F. Supp. 2d 394 Labor and Assistant Secretary for 21, 2009, President Obama instructed (S.D.N.Y. 2004) (No. 03 Civ. 8334), ECF Occupational Safety and Health in the the Director of OMB to issue an Open No. 16 (attached as Exhibit A).’’ formulation of construction safety and Government Directive. On December 8, The Chamber went on to comment, health standards, and policy matters 2009, OMB issued a Memorandum for ‘‘OSHA and the Chamber’s position are, affecting federally financed or assisted the Heads of Executive Departments and or at least were, the same: Total hours construction. In addition, OSHA’s Agencies, Open Government Directive, worked at individual establishments is regulation at 29 CFR 1912.3 provides which requires federal agencies to take confidential and proprietary that OSHA must consult with ACCSH steps to ‘‘expand access to information information. See New York Times Co., regarding the setting of new by making it available online in open 340 F. Supp. 2d at 402. Indeed, in the construction standards under the OSH formats.’’ The Directive also states that New York Times Co. case, OSHA Act. the ‘‘presumption shall be in favor of asserted that this number was not only OSHA notes that both the openness (to the extent permitted by confidential information, but had the Construction Safety Act and 29 CFR law and subject to valid privacy, capacity to ‘‘cause substantial 1912.3 only require OSHA to consult confidentiality, security, or other competitive injury.’’ Id. (citing Dep’t of with ACCSH regarding the setting of Labor Mem. of Law, Ex. B at 17). This restrictions).’’ In addition, the Directive new construction ‘‘standards.’’ As is because, as OSHA itself argued, the states that ‘‘agencies should proactively discussed above, the requirements in 29 total hours worked by a company’s use modern technology to disseminate CFR part 1904 are regulations, not employees ‘‘corresponds with business useful information, rather than waiting standards. In addition, and as discussed productivity,’’ Dep’t of Labor Mem. of for specific requests under FOIA.’’ elsewhere in this preamble, OSHA did Law, Ex. B at 4, and could be used ‘‘to As noted elsewhere in this document, consult and received advice from calculate a business[’s] costs and profit publication of recordkeeping data, NACOSH prior to issuing the proposed margins,’’ id. at 17 (citing Westinghouse subject to applicable privacy and rule. NACOSH has indicated its support Elec. Corp. v. Schlesinger, 392 F. Supp. confidentiality laws, will help for OSHA’s efforts in consultation with 1264, 1249 (E.D. Va. 1976), aff’d, 542 disseminate information about NIOSH to modernize the system for F.2d 1190 (4th Cir. 1976)). The occupational injuries and illnesses. collection of injury and illness data to confidentiality problems relating to Access to the data will help employers, assure that the data are timely, hours worked are only exacerbated in employees, employee representatives, complete, and accurate, as well as this Proposed Rule by OSHA’s and researchers better identify and abate accessible and useful to employees, insistence on collecting and publishing workplace hazards. Accordingly, OSHA employers, responsible government this information on an establishment- believes that publication of injury and agencies and members of the public. by-establishment basis, including the illness data on OSHA’s Web site is number of employees at each Open Government Initiative consistent with President Obama’s Open establishment. Armed with total hours In the preamble to the proposed rule, Government Initiative. worked plus an establishment’s OSHA stated that OSHA plans to post Privacy and Safeguarding Information employee count, a business’ overall the injury and illness data online, as capacity and productivity can easily be Freedom of Information Act encouraged by President Obama’s Open determined’’ (Ex. 1396). Government Initiative. See, 78 FR OSHA received several comments NAM commented, ‘‘Under the 67258. The Initiative includes executive regarding the Freedom of Information Freedom of Information Act (FOIA),

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certain documents are exempt from at 403. The court held that competitive annual average number of employees public disclosure. 5 U.S.C. 552. harm would not result from OSHA’s and total hours worked by employees Exemption 4 protects ‘a trade secret or release of lost workday injury and during the year. With respect to the privileged or confidential commercial or illness rates of individual OSHA 300 Log, because OSHA financial information obtained from a establishments, from which the number currently obtains part 1904 records person.’ 5 U.S.C. 552(b)(4). The NAM of employee hours worked could during onsite inspections, the Agency and its members believe employee theoretically be derived. Id. at 402–403. applies Exemption 7(c) of FOIA to hours worked on the OSHA Form 300A Additionally, the court explained that withhold from disclosure information in is confidential business information, most employers do not view injury and Column B (the employee’s name). (Note because that information gives insight illness data as confidential. Id. at 403. that OSHA will not collect or publish into the state of a business at any given As noted by commenters, during the Column B under this final rule.) FOIA time and creates a competitive harm. As New York Times litigation, the Secretary Exemption 7(c) provides protection for such, this information is entitled to argued that the injury and illness rates personal information in law protection from disclosure to the public requested in the FOIA suit could enforcement records. [5 U.S.C. under FOIA, which would be consistent constitute commercial information 552(b)(7)(c)]. OSHA currently uses with how OSHA has historically treated under Exemption 4 of FOIA, 5 U.S.C. Exemption 7(c) to withhold personal employee hours worked’’ (Ex. 1279). 552(b)(4). However, in the years since information included in Column B as The American Petroleum Institute (API) this decision, the Secretary has well as other columns of the 300 Log. made a comment similar to NAM (Ex. reconsidered his position. Since 2004, For example, OSHA would not disclose 1214). in response to FOIA requests, it has the information in Column C (Job Title), In response, OSHA notes that, as been OSHA’s policy to release if such information could be used to discussed in the preamble to the information from the Form 300A on the identify the injured or ill employee. proposed rule, the information required annual average number of employees Similarly, OSHA uses FOIA to be submitted by employers under this and the total hours worked by all exemptions to withhold from disclosure final rule is not of a kind that would employees during the past year at an Fields 1 through 9 on the OSHA 301 include confidential commercial establishment. Thus, there was a Incident Report. Fields 1 through 9 (the information. The Secretary carefully statement in the preamble to the left side of the 301) includes personal considered the issues addressed in the proposed rule explaining that the information about the injured or ill New York Times case, and concluded Secretary no longer believes the injury employee as well as the physician or that the information on the OSHA and illness information entered on the other health care professional. (Note recordkeeping forms, including the OSHA recordkeeping forms constitutes that under this final rule, OSHA will not number of employees and hours worked confidential commercial information. collect or publish Field 1 (employee at an establishment, is not confidential Accordingly, since the New York Times name), Field 2 (employee address), commercial information. See, 78 FR decision in 2004, OSHA has had a Field 6 (name of treating physician or 67263. The decision in New York Times, consistent policy concerning the release health care provider), or Field 7 (name along with the decision in OSHA Data, of information on the OSHA Form and address of non-workplace treating was based on the requirements in 300A. facility). All fields on the right side of OSHA’s previous recordkeeping Sarah Wilensky commented that the 301 (Fields 10 through 18) are regulation. Prior to 2001, employers OSHA is required under FOIA to generally released by OSHA in response were not required to record the total disclose much of the data it accesses to a FOIA request. number of hours worked by all from an inspection or visit to a covered OSHA generally uses FOIA employees on the OSHA forms. establishment, and that this obligation Exemption 7(c) to withhold from Many employers already routinely would not change if OSHA receives disclosure any personally identifiable disclose information about the number information as part of this rulemaking. information included anywhere on the of employees at an establishment. Since (Ex. 1382). This commenter also three OSHA recordkeeping forms. For 2001, OSHA’s recordkeeping regulation suggested that, similar to other example, although information in Field has required employers to record information in OSHA’s possession, 15 of the 301 incident report (Tell us information about the average annual employers’ commercially valuable how the injury occurred) is generally number of employees and total number information submitted as part of this released in response to a FOIA request, of hours worked by all employees on the rulemaking should be subject to if that data field includes any OSHA Form 300A. Section 1904.35 also exemption for trade secrets under FOIA personally-identifiable information, requires employers to disclose to (Ex. 1382). Another commenter, MIT such as a name or Social Security employees, former employees, and Laboratories, commented that FOIA is number, OSHA will apply Exemption 6 employee representatives non-redacted not of much use as a standard to protect or 7(c) and not release that information. copies of the OSHA Form 300A. In privacy in this rule (Ex. 1207). FOIA Exemption 6 protects information addition, § 1904.32(a)(4) requires OSHA agrees with the commenters about individuals in ‘‘personnel and employers to publicly disclose who suggested that recordkeeping medical and similar files’’ when the information about the number of information collected as part of this disclosure of such information ‘‘would employees and total number of hours final rule should be posted on the Web constitute a clearly unwarranted worked through the annual posting of site in accordance with FOIA. As invasion of personal privacy.’’ [5 U.S.C. the 300A in the workplace for three discussed in the preamble to the 552(b)(6)]. months from February 1 to April 30. proposed rule, the publication of Additionally, OSHA currently uses In the New York Times decision, the specific data elements will in part be FOIA Exemption 4 to withhold from court concluded that basic injury and restricted by the provisions of FOIA. [78 disclosure information on the three illness recordkeeping data regarding the FR 67259]. Currently, when OSHA recordkeeping forms regarding trade average number of employees and total receives a FOIA request for employer secrets or privileged or confidential number of hours worked does not recordkeeping forms, the Agency commercial or financial information. [5 involve confidential commercial releases all data fields on the OSHA U.S.C. 552(b)(4)]. However, it is OSHA’s information. See, 350 F. Supp. 2d 394 300A annual summary, including the experience that the inclusion of trade

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secret information on recordkeeping name of an individual, nor by some The basic employee safety and health forms is extremely rare. OSHA’s other personal identifier, the Privacy data required to be recorded do not recordkeeping regulation does not Act does not apply to OSHA injury and involve trade secrets, and public require employers to record information illness recordkeeping records. As a availability of such information would about, or provide detailed descriptions result, the Privacy Act does not prevent not enable a competitor to obtain a of, specific brands or processes that OSHA from posting recordkeeping data competitive advantage. Accordingly, the could be considered confidential on a publicly-accessible Web site. posting of injury and illness commercial information. In any event, However, OSHA again wishes to recordkeeping data online by OSHA is employers will have an opportunity to emphasize that, consistent with FOIA, not a release of confidential commercial inform OSHA that submitted data may the Agency does not intend to post information, and therefore is not a contain PII or confidential commercial personally identifiable information on violation of the Trade Secrets Act. In information. the Web site. some limited circumstances, the Again, OSHA wishes to emphasize information recorded in compliance Trade Secrets Act that it will post injury and illness with part 1904 may contain commercial recordkeeping information collected by The Coalition for Workplace Safety or financial information. OSHA this final rule consistent with FOIA. (CWS) commented that publication of considers such information to be information contained in the 300, 300A, Privacy Act potentially confidential, and, as and 301 forms would be a violation of appropriate, follows the procedures set Several commenters raised concerns 18 U.S.C. 1905—Disclosure of forth in 29 CFR 70.26, which require about a possible conflict between the confidential information generally, OSHA to contact the employer which proposed rule and the Privacy Act of which makes it a criminal act for submitted the information prior to any 1974, 5 U.S.C. 552a. (Exs. 1113, 1342, government officials to disclose potential release under FOIA Exemption 1359, 1370, 1393). The American Farm information concerning or relating to 4, 5 U.S.C. 552(b)(4). Additionally, Bureau Federation (AFBF) commented, the trade secrets, processes, operations, Section 15 of the OSH Act protects the ‘‘OSHA must consider the privacy style of work, or apparatus, or to the confidentiality of trade secrets. 29 interests of farmers’ names and home identity, confidential statistical data, U.S.C. 664. Under this final rule, it will contact information and is obligated amount or source of any income, profits, be OSHA policy not to post confidential under federal law to do a review under loses, or expenditures of any person, commercial or financial information on the Privacy Act’’ (Ex. 1113). The Society firm, partnership, corporation, or the publicly available Web site. The of the Plastics Industry, Inc. (SPI) association (Ex. 1411). case description information solicited in commented, ‘‘[G]iven the nature of the OSHA notes that the Trade Secrets questions 14 through 17 on OSHA’s information that may be filed in the Act, 18 U.S.C. 1905, states: ‘‘Whoever, Form 301 is broad in nature and does Section 1904 forms, OSHA’s obligation being an officer or employee of the not call for detailed descriptions that to redact any personally identifiable United States, . . . publishes, divulges, include personal or commercially medical information from those forms, discloses, or makes known in any confidential information. The examples and the fact that it will be infeasible to manner or to any extent not authorized provided on the form for fields 14 and OSHA to meet that obligation, OSHA is by law any information coming to him 15 include ‘‘spraying chlorine from precluded by the Federal Privacy Act in the course of his employment or hand sprayer’’ and ‘‘worker was sprayed from issuing the rule’’ (Ex. 1342). Ashok official duties . . . or record made to or with chlorine when gasket broke during Chandran made a similar comment (Ex. filed with, such department or agency or replacement’’. OSHA will add 1393). officer or employee thereof, which additional guidance to these In response, OSHA notes that the information concerns or relates to the instructions to inform employers not to Privacy Act regulates the collection, trade secrets, processes, operations, include personally identifiable maintenance, use, and dissemination of style of work, or apparatus, or to the information (PII) or confidential personal identifiable information by identity, confidential status, amount or business information (CBI) within these federal agencies. Section 552a(e)(4) of source of any income, profits, losses, or fields. the Privacy Act requires that all federal expenditures of any person, firm, agencies publish in the Federal Register partnership, corporation, or association; Confidential Commercial Information a notice of the existence and character . . . shall be fined under this title, or Multiple commenters stated that the of their systems of records. The Privacy imprisoned not more than one year, or proposed rule would require employers Act permits the disclosure of both; and shall be removed from office to submit proprietary and confidential information about individuals without or employment.’’ business data to OSHA (Exs. 0057, 0160, their consent pursuant to a published As discussed elsewhere in this 0171, 0179, 0205, 0218, 0224, 0240, routine use where the information will document, the information required to 0251, 0252, 0257, 0258, 1084, 1090, be used for a purpose that is comparable be submitted under the final rule is not 1091, 1092, 1093, 1111, 1112, 1113, to the purpose for which the of a kind that would include 1116, 1123, 1192, 1193, 1195, 1196, information was originally collected. confidential commercial information. 1197, 1198, 1199, 1205, 1209, 1214, The Privacy Act only applies to The information is limited to the 1216, 1217, 1218, 1219, 1225, 1272, records that are located in a ‘‘system of number and nature of recordable 1275, 1276, 1279, 1318, 1323, 1326, records.’’ As defined in the Privacy Act, injuries or illnesses experienced by 1328, 1332, 1333, 1334, 1336, 1338, a system of records is ‘‘a group of any employees at particular establishments, 1343, 1349, 1356, 1359, 1366, 1367, records under the control of any agency and the data necessary to calculate 1370, 1372, 1386, 1392, 1394, 1396, from which information is retrieved by injury/illness rates, i.e., the number of 1397, 1399, 1408, 1411, 1415, 1426, the name of the individual or by some employees and the hours worked at an 1427, 1430). In addition to the identifying number, symbol, or other establishment. Details about a comments addressed above regarding identifying particular assigned to the company’s products or production the average number of employees and individual.’’ See, 5 U.S.C. 552a(a)(5). processes are generally not included on total hours worked by employees, Because OSHA injury and illness the OSHA recordkeeping forms, nor do commenters expressed concern about records are retrieved neither by the the forms request financial information. the confidentiality of other data on the

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OSHA recordkeeping forms. IPC– As discussed above, OSHA is not ‘‘collect [employee] names from Association Connecting Electronics prohibited from releasing proprietary or OSHA 300 or 301 logs’’ (Ex. 0035). The Industries made a specific comment that confidential commercial information International Association of Drilling ‘‘the requirement in column F [OSHA under FOIA Exemption 4. The term Contractors (IADC) provided a similar 300 Log] to disclose the ‘‘object/ ‘‘confidential commercial information’’ comment (Ex. 1199). substance that directly injured or made means ‘‘records provided to the The Phylmar Regulatory Roundtable person ill’’ creates a mechanism that government by a submitter that arguably commented that employers should ‘‘not could lead to disclosure of intellectual contain material exempt from release be required to submit information property to competitors, both foreign under Exemption 4 of the Freedom of including names, dates of birth, and domestic, especially in research and Information Act, 5 U.S.C. 552(b)(4), addresses, Social Security Number, etc. development facilities’’ (Ex. 1334). because its disclosure could reasonably . . . Requiring electronic submissions Darren Snikrep commented, ‘‘The plan be expected to cause substantial containing PII to OSHA unnecessarily to provide public access to the data competitive harm.’’ See, Executive creates an opportunity for private means a loss of privacy for employers Order 12600, Predisclosure notification information to accidentally become and may adversely affect an employer’s procedures for confidential commercial public’’ (Ex. 1110). The U.S. Poultry & ability to obtain work’’ (Ex. 0057). information. [June 23, 1987]. Egg Association, Huntington Ingalls Similarly, the Louisiana Farm Bureau Additionally, because recordkeeping Industries—Newport News commented, ‘‘The proposed rule states data will be posted on a publicly- Shipbuilding, and Melinda Ward that the company’s executive’s accessible Web site, when recording provided similar comments (Exs. 1109, signature, title, telephone number, the injuries and illnesses at their 1196, 1223). Huntington Ingalls establishment’s name and street establishment, OSHA encourages Industries—Newport News address, industry description, SIC or employers not to enter confidential Shipbuilding also commented that NAICS code and employment commercial information on the employees could ‘‘have the ability to opt information including annual average recordkeeping forms. out of having their personally number of employees, total hours identifiable information provided to Submission of Personally Identifiable worked by all employees will all be OSHA’’ (Ex. 1196). Information and Employee Privacy non-protected information that is MIT Laboratories commented that readily available to the public via the OSHA received several comments in ‘‘OSHA should consider developing a OSHA data portal and downloadable to support of electronic submission of part toolkit or educational materials to help anyone. This invites targeting of 1904 data with personally identifiable employers identify information that employers that may have no basis on information (PII) (Exs. 0208, 1106, 1211, poses a re-identification risk in their actual workplace safety. We strongly 1350, 1354, 1381, 1382, 1387, 1395). workplace records, especially if OSHA feel that an employer’s information Many commenters commented that expect [sic] that its recordkeeping forms identified with OSHA reporting should federal and state agencies require will continue to elicit textual be kept private, the same as the privacy electronic submission of health and descriptions of injuries and illnesses in afforded workers under the proposed safety data without the misuse of the future. Such materials could help OSHA rule.’’ (Ex. 1386). personal identifiers (Exs. 0208, 1106, mitigate the risk that employers will On the other hand, the Associated 1211, 1350, 1354, 1381, 1382, 1387, include identifying information in the General Contractors of Michigan 1395). For example, the Department of form’’ (Ex. 1207). commented that recordkeeping data are Workplace Standards, Kentucky Labor OSHA partially agrees with not proprietary and confidential Cabinet commented that they do ‘‘not commenters who stated that employers business information: ‘‘Companies with foresee misuse of the information; other should submit their data to OSHA with over 20 employees during the reporting agencies require electronic submission PII about employees included on the year must electronically report annually of similar data and have accomplished 300 and 301 forms. In many cases, PII using the OSHA 300A Summary Form. the requirement without misuse of entered on the OSHA recordkeeping This type of reporting would not be a personal identifiers’’ (Ex. 0208). Sarah forms includes important information burden on employers and would avoid Wilensky, the Service Employees that the Agency uses for activities ‘privacy issues’, but would provide International Union (SEIU) and the designed to increase workplace safety enough information for a more effective California Department of Industrial and health and prevent occupational enforcement effort’’ (Ex. 0250). J. Wilson Relations (DIR), Office of the Director injuries and illnesses, including made a similar comment (Ex. 0238). provided similar comments (Exs. 1382, outreach, compliance assistance, In response, OSHA again wishes to 1387, 1395). enforcement, and research. As discussed emphasize that it is not the Agency’s The American Public Health elsewhere in this preamble, other intention to post proprietary or Association (APHA) commented that government agencies are able to handle confidential commercial information on OSHA’s sister agency, the Mine Safety vary large amounts of PII, and OSHA the publicly-accessible Web site. The and Health Administration (MSHA), will follow accepted procedures and purpose for the publication of ‘‘has collected and posted on its Web protocols to prevent the release of such recordkeeping data under this final rule site far more detailed and information. is to disseminate information about comprehensive information on work- However, for some data fields, OSHA occupational injuries and illnesses. place injuries than is being proposed by does not consider the data from these OSHA agrees with commenters who OSHA’’ (Ex. 1354). The AFL–CIO and fields necessary to meet the various stated that recordkeeping data generally the International Brotherhood of stated goals of the data collection. These do not include proprietary or Teamsters provided similar comments fields primarily exist to help people commercial business information. (Exs. 1350, 1381). doing incident investigations at the Specifically, information on the 300A However, there were also many establishment. Collecting data from annual summary, such as the comments opposing employer these fields would not add to OSHA’s or establishment’s name, business address, submission of certain data from the any other user’s ability to identify and NAICS code, are already publicly OSHA Form 300 and 301. Thoron establishments with specific hazards or available. Bennett commented that OSHA should elevated injury and illness rates.

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Therefore, OSHA has decided in this treatment, prescription drug use, HIV status recordkeeping regulation, OSHA final rule to exclude from the submittal and related matters is entitled to privacy explained that it has historically requirements several fields on the protection’’ and that ‘‘there are few matters recognized that the OSHA 300 Log and OSHA Forms 300 and 301 to minimize that are quite so personal as the status of 301 Incident Report may contain one’s health, and few matters the any potential release or unauthorized dissemination of which one would prefer to information that an individual would access to these data. The data elements maintain greater control over.’’ 66 FR at 6054. wish to remain confidential. [66 FR are: OSHA went on to acknowledge that ‘‘[t]he 6055]. OSHA also acknowledged that • Log of Work-Related Injuries and right to privacy is not limited to medical although the entries on the 300 Log are Illnesses (OSHA Form 300): Employee records. Other types of records containing typically brief, they may contain name (column B). medical information are also covered.’’ Id. at medical information, including • Injury and Illness Incident Report 6055. (citations omitted). diagnosis of specific illnesses. Id. (OSHA Form 301): Employee name After recognizing that a right of privacy However, OSHA concluded that (field 1), employee address (field 2), exists and is entitled to protection, OSHA disclosure of the Log and Incident applied a balancing test—weighing the name of physician or other health care individual’s interest in confidentiality Report to employees, former employees, professional (field 6), facility name and against the public interest in disclosure to and their representatives benefits these address if treatment was given away employees and representatives. Id. After employees generally by increasing their from the worksite (field 7). lengthy analysis, OSHA concluded that awareness and understanding of the Additionally, several commenters allowing employees access to information safety and health hazards in the expressed concern about the potential contained on the Form 301 served a workplace. Thus, current § 1904.35, public release of personal information legitimate public interest—that is helping Access to records, permits employees, about employees from the OSHA employees to protect themselves from future former employees, and employee recordkeeping forms. (Exs. 0171, 0189, injuries or illness. representatives access to information on The proposed regulation discussed in these 0209, 0210, 0215, 0250, 0253, 1091, comments, ignores this right of privacy and the OSHA recordkeeping forms. As the 1113, 1199, 1201, 1206, 1207, 1276, abandons any type of balancing test. OSHA 2001 preamble makes clear, OSHA 1329, 1359, 1370, 1386, 1408, 1410). does not allege any reasons that making such authorized this right of access after These commenters stated that the OSHA information available to the public outweighs balancing the privacy rights of recordkeeping forms contain private and the privacy interests of the individual individuals with the public interest for highly confidential employee employees. Merely redacting an employee’s disclosure. In addition, the 2001 information, including medical name does not provide sufficient protection preamble states that OSHA does not information. Some commenters also from the release, even inadvertently, of other have the statutory authority to prevent personally identifiable information or the disclosure of private information raised concerns about previous OSHA medical information that employees maintain rulemakings. For example, the National a privacy interest in (Ex. 1279). once the records are in the possession Association of Home Builders (NAHB) of employees, former employees and commented, ‘‘OSHA has made specific Other commenters raised a specific their representatives. [66 FR 5056]. findings related to privacy interest of concern about the release of personal OSHA acknowledges commenters’ employees and the utility of making information in the agricultural industry, concerns about the potential posting of certain recordkeeping forms public. where many families live on farms private employee information on a Having done so, OSHA must explain where they work (Exs. 1113, 1359, 1370, publicly-accessible Web site. However, why it is deviating from its past practice 1386). Commenters stated that, under the posting or disclosure of private or and positions . . . OSHA is required to the proposed rule, a publicly-searchable confidential information has never been comply with the Administrative database will include information about the intent of this rulemaking. OSHA Procedure Act and provide a reasoned farmers’ names, their home address, as believes it has effective safeguards in explanation for this change of policy, well as other home contact information. place to prevent the disclosure of starting by recognizing past policy and These commenters also emphasized that personal or confidential information a justification for the change. OSHA has the proposed rule would lead to serious contained in the recordkeeping forms not done so here and failure to do so security and privacy concerns that and submitted to OSHA. Specifically, as here makes this change arbitrary and OSHA has not addressed. discussed above, OSHA will neither Additionally, the American Health capricious’’ (Ex. 1408). collect nor publish the following A few commenters suggested that Care Association/National Center for information: • OSHA should balance the public Assisted Living (AHCA/NCAL) asked Log of Work-Related Injuries and interest of disclosure with the whether the proposed rule would Illnesses (OSHA Form 300): Employee compromise the privacy of patients in name (column B). employee’s right to privacy (Exs. 1279, • 1408, 1411). NAM commented: the health care industry. This Injury and Illness Incident Report commenter stated that they assist and (OSHA Form 301): Employee name In the Federal Register publishing the final care for people and that this involves (field 1), employee address (field 2), rule to the Part 1904 revisions, OSHA day-to-day interactions with patients, name of physician or other health care acknowledged the existence of a U.S. Constitutional right of privacy in personal residents, and their families—‘‘who professional (field 6), facility name and information. In doing so, OSHA cited to expect that their privacy will be address if treatment was given away various U.S. Supreme Court and federal protected and that personal information from the worksite (field 7). circuit court decisions that have suggested about them or their conditions will not Also, OSHA’s recordkeeping that such a right exists. 66 FR at 6054. See, be broadcast on OSHA’s Web page’’ (Ex. regulation at § 1904.29(b)(10) prohibits e.g., Whalen v. Roe, 429 U.S. 588 (1977), 1194). the release of employees’ names and Nixon v. Adm’r of General Services, 433 U.S. In response, OSHA disagrees with personal identifiers related to ‘‘privacy 425 (1977), Paul v. Verniero, 170 F.3d 396, commenters who suggested that the concern cases.’’ OSHA will also 402 (3d Cir. 1999), Norman-Bloodsay v. Agency is deviating from its past withhold from publication all of the Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998). practice regarding recordkeeping information on the left-hand side of the Further, OSHA recognized that information and the privacy interest of OSHA 301 Incident Report that is ‘‘information about the state of a person’s employees. In the preamble to the 2001 submitted to OSHA (employee date of health, including his or her medical final rule revising the part 1904 birth (Field 3), employee date hired

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(Field 4), and employee gender (Field 0211, 0218, 0224, 0240, 0241, 0242, for misuse, and provide harmed 5)). All of the information on the right 0252, 0253, 0258, 1084, 1090, 1092, individuals with a right of action’’ (Ex. hand side (Fields 10 through 18) will 1093, 1109, 1113, 1122, 1123, 1190, 1207). The American Road and generally be posted on the Web site 1192, 1194, 1197, 1198, 1199, 1200, Transportation Builders Association (after it is scrubbed for PII). Finally, 1205, 1206, 1207, 1209, 1214, 1217, (ARTBA) provided a similar comment because the OSHA 300A Annual 1218, 1219, 1223, 1272, 1273, 1275, (Ex. 1409). Summary does not contain any 1276, 1279, 1318, 1321, 1322, 1323, In response, when OSHA develops personally-identifiable information, all 1326, 1327, 1331, 1333, 1334, 1336, the data collection system, the Agency of the fields on the OSHA 300A Annual 1338, 1342, 1343, 1348, 1349, 1353, plans to maintain two data repositories Summary will be posted. 1355, 1356, 1359, 1360, 1370, 1372, in the system: One as OSHA’s data mart OSHA also acknowledges that certain 1376, 1378, 1386, 1389, 1392, 1394, (or warehouse) for prescribed data data fields on the OSHA 300 and 301 1396, 1397, 1399, 1402, 1408, 1410, behind a secure firewall, and a separate may contain personally-identifiable 1411, 1412, 1415, 1417, 1427, 1430). but similarly secured repository of data information. It has been OSHA’s Some of these commenters were that has been verified as scrubbed and experience that information entered in specifically concerned about the available for public access. Both systems Column F of the 300 Log may contain anonymity of injured or ill employees will have multi-tiered access controls, personally-identifiable information. For working at small establishments located and the internal system will specifically example, when describing an injury or in small communities. For example, be designed to limit access to PII to as illness, employers sometimes include commenters noted that information few users as possible. In addition, names of employees. As a result, OSHA such as type of injury or illness, date OSHA will consider the possible need plans to review the information and location of injury or illness, type of to encrypt sensitive data in the data submitted by employers for personally- body part injured, treatment, and job mart repository as a safeguard, so that identifiable information. As part of this title, could be used to identify the data would be scrubbed (and rendered review, the Agency will use software employee. unreadable and useless) in the case of that will search for, and de-identify, In response, OSHA notes that the final unauthorized access. Also, as discussed personally identifiable information rule requires only establishments with above, OSHA will not collect data from before the submitted data are posted. 250 or more employees to submit certain fields that primarily exist to help In response to commenters who information from all three OSHA people doing incident investigations at expressed concern about the posting of recordkeeping forms. The Agency the establishment and that would not personal information from family farms, believes it is less likely that employees add to OSHA’s or any other user’s OSHA notes that it is extremely unlikely in such large establishments will be ability to identify establishments with that personal information from family identified based on the posted specific hazards or elevated injury and farms will be collected or posted under recordkeeping data. By contrast, illness rates. this final rule. Section 1904.41(a)(1) of establishments with 20 to 249 Additionally, NAM commented that, the final rule requires only employees that are required to submit in the preamble to the 2001 final rule, establishments with 250 or more recordkeeping data under this final rule OSHA acknowledged the inability to employees to submit information from are only required to submit their OSHA protect personal information in part the three OSHA recordkeeping forms. In 300A annual summary. As discussed 1904: ‘‘In 2001, OSHA acknowledged addition, § 1904.41(a)(2) of the final rule above, the OSHA Form 300A includes that the agency had no means of makes clear that only establishments in only aggregate injury and illness data protecting against unwarranted designated industries with 20 more from a specific establishment. disclosure of private information employees, but fewer than 250 contained in an employer’s injury and employees, must submit information Safeguarding Collected Information illness records or that there were from the OSHA 300A annual summary. OSHA received multiple comments sufficient safeguards in place to protect As a result, in most cases, family farms on the issue of safeguarding the against misuse of private information. will not be required to submit injury information collected under this final But more importantly, OSHA and illness recordkeeping data to OSHA rule. Several commenters commented acknowledged that ‘‘[t]he right to collect under this final rule. that OSHA should use and specify and use [private] data for public As discussed elsewhere in this procedures for cybersecurity measures purposes is typically accompanied by a preamble, under § 1904.41(a)(3) of the to protect confidential information (Exs. concomitant statutory or regulatory duty final rule, some employers with 19 or 1210, 1333, 1334, 1364, 1409). For to avoid unwarranted disclosures.’’ 66 fewer employees (including small example, IPC—Association Connecting FR at 6056.’’ (Ex. 1279). Other farms) may be required to submit their Electronics Industries commented that commenters commented that there is no injury and illness recordkeeping data to ‘‘IPC is concerned about the security of assurance that OSHA will be able to OSHA. Farm address and contact the injury and illness data reported to protect the privacy of the employee information is already commercially OSHA. IPC asks OSHA to specify the once the recordkeeping data is available, and the information can be security measures that will be used to submitted (Exs. 0187, 1217, 1275). purchased from such companies as D&B protect sensitive information’’ (Ex. In response, OSHA disagrees with and Experian. Also, address and contact 1334). commenters who suggested the Agency information for small farms that have MIT Laboratories commented more will not be able to protect employee been inspected by OSHA is already on generally about the misuse of collected information. As discussed above, two the Agency’s public Web site. data. They stated that there is a lack of ways OSHA can protect the privacy of A number of commenters suggested ‘‘mechanisms that would provide employee information are by not that, even though OSHA intended to accountability for harm arising from collecting certain information and by delete employee names and other misuse of disclosed data . . . not releasing personally identifiable identifying information, enough Accountability mechanisms should information on the publicly-accessible information would remain in the enable individuals to find out where Web site. With respect to safeguarding published data for the public to identify data describing them has been the information submitted by the injured or ill employee (Exs. 0189, distributed and used, set forth penalties employers, OSHA is strongly committed

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to maintaining the confidentiality of the information about employers or Assume that an employer voluntarily information it collects, as well as the employees. provides its OSHA Forms 300 and 301 to an security of its computer system. All outside safety and health organization. In federal agencies are required to establish Privacy Concern Cases choosing to do so, the employer is required appropriate administrative and to redact the employees’ names and ‘‘other Some commenters raised concerns personally identifying information.’’ technical safeguards to ensure that the about the proposed rule and the Depending on a variety of factors, the security of all media containing protection of personally identifiable employer chooses to redact certain confidential information is protected employee information included in information, including job titles and dates of against unauthorized disclosures and ‘‘privacy concern cases’’ (Exs. 0150, injuries. Yet, months later when OSHA anticipated threats or hazards to their 1207, 1279, 1335, 1339). Under OSHA’s receives this employer’s injury and illness security or integrity. Regardless of the records it decides to only redact the existing recordkeeping regulation, category of information, all Department employees’ names. The safety and health § 1904.29(b)(6)) requires employers to of Labor agencies must comply with the organization could put both sets of data withhold the injured or ill employee’s Privacy and Security Statement posted together—something OSHA seems to want to name from the 300 Log for injuries and encourage—and the safety and health on DOL’s Web site. As part of its efforts organization could conceivably identify to ensure and maintain the integrity of illnesses defined as ‘‘privacy concern cases.’’ Section 1904.29(b)(7) defines various individuals. Using this information, the information disseminated to the the safety and health organization contacts public, DOL’s IT security policy and privacy concern cases as those involving (i) an injury or illness to an intimate the employee. In many instances, the planning framework is designed to employee may not want to be contacted or protect information from unauthorized body part or the reproductive system; have their information used and access or revision and to ensure that the (ii) an injury or illness resulting from a disseminated any further, constituting an information is not compromised sexual assault; (iii) a mental illness; (iv) unwarranted and ongoing invasion of the through corruption or falsification. a work-related HIV infection, hepatitis employee’s privacy (Ex. 1279). Posting of the annual summary in the case, or tuberculosis case; (v) needlestick injuries and cuts from sharp Additionally, Portland Cement workplace is not public disclosure. commented: ‘‘The Agency has not objects that are contaminated with The International Association of shown the regulated community in this Amusement Parks (IAAP) commented another person’s blood or other proposal what a revised Form 300, if that OSHA only addressed the privacy potentially infectious material, or (vi) developed, would show, and explicit concern by stating in the preamble to any other illness, if the employee wording in the proposed 1904.41 would the proposed rule that an employer independently and voluntarily requests require the employee’s name to be already has the obligation to publish that his or her name not be entered on shown in the electronic submission to recordkeeping data when they post the the log. Additionally, § 1904.29(b)(10) OSHA. Because the Agency has clearly OSHA 300A. IAAP commented, includes provisions addressing defined ‘‘privacy concern cases’’ in part however, that ‘‘[t]his posting of the employee privacy if the employer 1904.29(b)(6) for when employers may annual summary data by an employer is decides voluntarily to disclose the keep confidential the identity of the not comparable to posting injury and OSHA 300 and 301 forms to persons injured or ill employee, there are illness data on a searchable, publicly other than those who have a mandatory accessible database. Employers can post concerns about why OSHA did not more right of access under § 1904.35. The clearly and explicitly address naming the annual summary data on employee paragraph requires employers to remove bulletin boards which are typically not the employee in the proposed electronic or hide employees’ names or other submission requirement found in located in places where the public has personally identifiable information access’’ (Ex. 1427). The American Fuel proposed 1904.41, and why the Agency before disclosing the forms to persons did not provide a revised OSHA Form & Petroleum Association (AFPA) also other than government representatives, noted that ‘‘[w]ith respect to posting 300 for review in the proposed former employees, or authorized regulation’’ (Ex. 1335). annual summary data, the information representatives, as required by In response, OSHA agrees with stays within the place of employment. §§ 1904.40 and 1904.35, except in three commenters who stated that the Even if an employee decides to cases. The employer may disclose the confidentiality of privacy concern cases distribute the information, the reach forms, complete with personally- is extremely important. The would probably be limited to the identifiable information, only to: (i) An requirements in existing § 1904.29(b)(6) immediate, surrounding area’’ (Ex. auditor or consultant hired by the through (10) were issued by OSHA in 1336). employer to evaluate the safety and In response, OSHA notes that one of 2001 as a result of the Agency’s strong health program; (ii) the extent necessary the objectives of this rulemaking is to commitment to protect the identity of for processing a claim for workers’ produce a wider public dissemination of employees involved in privacy concern compensation or other insurance information about recordable cases. As discussed above, the final rule benefits; or (iii) a public health occupational injuries and illnesses. The requires employers at establishments Annual Summary does not include authority or law enforcement agency for with 250 or more employees to submit personally-identifiable information, and uses and disclosures for which consent, information about the employee and the the posting of the information on the an authorization, or opportunity to agree employee’s injury/illness recorded on Web site should not involve privacy or or disagree or object is not required the 300 and 301 forms, except employee confidentiality concerns. With respect under 45 CFR 164.512 (Privacy Rule). name and address, treating physician to the posting on the Web site of In its comments, NAM stated that name, and treating facility name and information from the 300 Log and 301 OSHA failed to address how address. This includes the information Incident Report for establishments with § 1904.29(b)(6)–(10) would be affected related to privacy concern cases. Since 250 or more employees, such posting by the proposed rule. NAM commented OSHA will have the relevant will not include personally-identifiable that there may be differences between information from the forms, employers information. Again, the goal of the final employers and OSHA as to what is are not required to submit the rule is to disseminate injury and illness considered personally identifiable confidential list of privacy concern data, not to disseminate personal information. cases.

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Also as discussed above, OSHA will establishments with 250 or more federal agency for any non-statistical not collect or post information from employers will be required to submit purpose. As noted elsewhere in this Column B (the employee’s name) from the OSHA 300 Log and 301 Incident document, the information collected the 300 Log or from Fields 1, 2, 6, or 7 Report, it is less likely that information and published by OSHA in the final rule from the 301 Incident Report. In related to Job Title can be used to will be used for several purposes, addition, OSHA will not post identify an employee. including for the targeting of OSHA information from Fields 3 through 5 of OSHA further notes that comments enforcement activities. Therefore, the the 301 Incident Report. Information in that suggested additional categories for CIPSEA confidentiality provisions are items 14 through 17 will be scrubbed for privacy concern cases are not within the not applicable to the final rule. PII before being released publicly. This scope of this rulemaking. Any revision Data Quality Act will ensure that information about an to existing § 1904.29(b)(6) through (10) employee’s name, address, date of birth, would require separate notice and Peter Strauss commented that OSHA date hired, and gender is not disclosed. comment rulemaking. is entitled to collect the workplace OSHA also does not intend to post any injury and illness records as prescribed Confidential Information Protection and by the proposed rule, but the Data other information on the Web site that Statistical Efficiency Act could be used to identify an individual. Quality Act assures against the Additionally, OSHA will conduct a Several commenters stated that the mishandling of such data (Ex. 0187). special review of submitted privacy online posting of covered employers Another commenter, Society of Plastics concern case information to ensure that injury and illness recordkeeping data Industry, Inc., commented: ‘‘Let us the identity of the employee is violates the Confidential Information assume, solely for purposes of further protected. Protection and Statistical Efficiency Act analysis, and contrary to its stated With respect to NAM’s comment of 2002 (CIPSEA) (Pub. L. 107–347, purpose, that the publication of this regarding the definition of ‘‘personally- December 17, 2002) (Exs. 1225, 1392, information was designed solely to identifiable information,’’ OSHA uses 1399). These commenters noted that inform affected employers and the definition provided in the May 22, CIPSEA prohibits BLS from releasing employees of workplace incidents, and 2007, OMB Memorandum for the Heads establishment-specific injury and illness implicitly workplace conditions, so they of Executive Departments and Agencies, data to the general public or to OSHA, could take remedial and/or preventive ‘‘Safeguarding Against and Responding and that OSHA has not adequately measures to prevent incidents from to the Breach of Personally Identifiable addressed how the release of part 1904 happening again. OSHA would be Information.’’ The term ‘‘personally- information under this rulemaking is publishing information that has not identifiable information’’ refers to consistent with the Congressional been investigated or otherwise verified information which can be used to mandate expressed in the law. through appropriate quality controls, distinguish or trace an individual’s Two commenters also stated that that would be misleading (in that it identify, such as their name, Social publishing data from the OSHA would be published without any Security number, biometric records, etc. recordkeeping forms would circumvent meaningful context and in a manner alone, or when combined with other Congress’s intent from 2002 (Exs. 1193, designed to convey employer personal or identifying information 1430). These commenters noted that responsibility notwithstanding any which is linked or linkable to a specific data on the 300 and 301 forms are accompanying disclaimers), and that individual, such as date and place of already reported to BLS, and when may very well contain personal birth, mother’s maiden name, etc. Based Congress passed CIPSEA, it made the identifiers or personally identifiable on this definition, certain information determination that such information information that could effectively result included on the OSHA recordkeeping should be confidential and prohibited in the unlawful disclosure of personal forms is personally identifiable BLS from releasing establishment- medical information. This type of information. For example, an specific data to the general public or to publication would conflict with the employee’s name, address, date of birth, OSHA. goals of the OSH Act, the requirements date hired, and gender would be In response, OSHA notes that CIPSEA of the Data Quality Act, and the personally identifiable information and provides strong confidentiality requirements of the applicable privacy not subject to posting on the publicly- protections for statistical information laws’’ (Ex. 1342). accessible Web site as establishment- collections that are conducted or In response, OSHA notes that the Data specific data. (However, note that OSHA sponsored by federal agencies. The law Quality Act, or Information Quality Act, will not collect information about the prevents the disclosure of data or was passed by Congress in Section 115 employee’s name or address under this information in identifiable form if the of the Treasury and General final rule.) information is acquired by an agency Government Appropriations Act for Other information included on the under a pledge of confidentiality for Fiscal Year 2001 (Pub. L. 106–554; H.R. OSHA forms may also be personally exclusively statistical purposes. See, 5658). The Act directs the Office of identifiable information. As mentioned section 512(b)(1). BLS, whose mission is Management and Budget (OMB) to issue by a commenter, depending on the to collect, process, analyze, and government-wide guidelines that circumstances at a specific disseminate statistical information, uses ‘‘provide policy and procedural establishment, the information in a pledge of confidentiality when guidance to federal agencies for Column C (Job Title) from the 300 Log requesting occupational injury and ensuring and maximizing the quality, could be used to identify an employee illness information from respondents objectivity, utility, and integrity of who was involved in a privacy concern under the BLS Survey. information (including statistical case. In fact, OSHA’s current The provisions of CIPSEA apply when information) disseminated by federal recordkeeping Frequently Asked a federal agency both pledges to protect agencies.’’ The Act also requires other Question (FAQ) 29–3 permits an the confidentiality of the information it federal agencies to publish their own employer to delete information (such as acquires and uses the information only implementation guidelines that include Job Title) if they believe it will identify for statistical purposes. Conversely, the ‘‘administrative mechanisms allowing the employee. However, OSHA also provisions of CIPSEA do not apply if affected persons to seek and obtain believes that because only information is collected or used by a correction of information maintained

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and disseminated by the agency’’ that privacy regulation at 45 CFR parts 160 document, procedures are in place to does not comply with the guidelines and 164 (Privacy Rule), prohibits OSHA ensure that individually-identifiable issued by OMB. The Department of from public disclosure of personally- information, including health Labor issued its implementing identifiable health information. Other information, will not be publicly posted guidelines on October 1, 2002. [http:// commenters expressed the concern that on the OSHA Web site. www.dol.gov/informationquality.htm]. employers would be in violation of the With respect to the issue of whether The purpose of these guidelines is to Privacy Rule if this rulemaking requires HIPAA prevents covered entities from establish Departmental guidelines for them to submit protected health disclosing PHI to employers, and/or implementing an information quality information to OSHA (Exs. 0218, 0224, directly to OSHA, the Agency notes that program at DOL and to enhance the 0240, 0252, 1084, 1093, 1109, 1111, the Privacy Rule specifically includes quality of information disseminated by 1123, 1197, 1200, 1205, 1206, 1210, several exemptions for disclosures of DOL. 1214, 1217, 1218, 1223, 1272, 1275, health information without individual The DOL Guidelines state that 1279, 1331, 1338, 1342, 1362, 1370, authorization. Of particular significance, ‘‘dissemination’’ includes agency 1386, 1402, 1408). is 45 CFR 164.512—Uses and initiated or sponsored distribution of In response, OSHA notes that on disclosures for which authorization or information to the public.’’ It does not December 28, 2000, the U.S. Department opportunity to agree or object is not include ‘‘agency citations to or of Health and Human Services (HHS) required. These standards, in discussion of information that was issued a final rule, Standard for Privacy themselves, do not compel a covered prepared by others and considered by of Individually-Identifiable Health entity to disclose PHI. Instead, they the agency in the performance of its Information (65 FR 82462). The rule was merely permit the covered entity to responsibilities, unless an agency modified on August 14, 2002 (67 FR make the requested disclosure without disseminates it in a manner that 53182), which is codified at 45 CFR obtaining authorization from affected reasonably suggests that the agency parts 160 and 164. Collectively known individuals. Section 164.512(a) of the agrees with the information.’’ OSHA as the ‘‘Privacy Rule,’’ these standards Privacy Rule permits covered entities to notes that it will make no determination protect the privacy of individually use and disclose PHI, without as to whether the Agency agrees with identifiable health information authorization, when they are required to the recordkeeping information (‘‘protected health information’’ or do so by another law. HHS has made electronically submitted under the final ‘‘PHI’’), but is balanced to ensure that clear that this disclosure encompasses rule. In addition, with the exception of appropriate uses and disclosures of PHI the full array of binding legal redacting personally identifiable still may be made when necessary to authorities, including statutes, agency information, OSHA will not amend the treat a patient, to protect the nation’s orders, regulations, or other federal, raw recordkeeping data submitted by public health, and for other critical state or local governmental actions employers. As a result, the provisions of purposes. A covered entity may not use having the effect of law. See, 65 FR the Information Quality Act, as well as or disclose protected health information 82668. As a result, the Privacy Rule the DOL information quality guidelines, unless permitted by the Privacy Rule. does not allow a covered entity to do not apply to the recordkeeping See, 45 CFR 164.502. restrict or refuse to disclose PHI information posted on the public Web As required by HIPAA, the provisions required by an OSHA standard or site. of the Privacy Rule only apply to regulation. Although the provisions of the ‘‘covered entities.’’ The term ‘‘covered A covered entity may also disclose Information Quality Act do not apply, entity’’ includes health plans, health PHI without individual authorization to OSHA still wishes to emphasize that, as care clearinghouses, and health care ‘‘public health authorities’’ and to part of its efforts to ensure accuracy, the providers who conduct certain financial ‘‘health oversight agencies.’’ See, 45 Agency encourages affected employers, and administrative transactions CFR 164.512(b) and (d). The preamble to employees, and other individuals to electronically. See, 45 CFR 160.103. the Privacy Rule specifically mentions seek and obtain, where appropriate, OSHA notes that the Agency does not OSHA as an example of both. See, 65 FR correction of recordkeeping data posted fall within the definition of a covered 82492, 82526. on the public Web site. OSHA believes entity for purposes of the Privacy Rule. The Privacy Rule also permits a that in most cases, informal contacts Therefore, the use and disclosure covered entity who is a member of the with the Agency will be appropriate. requirements of the Privacy Rule do not employer’s workforce, or provides However, OSHA will also make apply to OSHA, and do not prevent the health care at the request of an available on its Web site a list of Agency from publishing injury and employer, to disclose to employers officials to whom requests for illness recordkeeping information under protected health information concerning corrections should be sent and where this final rule. work-related injuries or illnesses or and how such officials may be Additionally, OSHA agrees with work-related medical surveillance in contacted. The purpose of this commenters who suggested that the situations where the employer has a correction process is to address Agency consider applying the principles duty under the OSH Act, the Mine Act, inaccuracies in the posted information, set forth in the Privacy Rule for the de- or under a similar state law to keep not to resolve underlying substantive identification of health information. records on or act on such information. policy or legal issues. OSHA believes that health information Section 164.512(b)(1)(v)(C) specifically is individually identifiable if it does, or permits a covered entity to use or Health Insurance Portability and potentially could, identify the disclose protected health information if Accountability Act individual. As explained by the employer needs such information in Several commenters raised concerns commenters, once protected health order to comply with obligations under about whether the proposed rule would information is de-identified, there may 29 CFR parts 1904 through 1928. hinder individual privacy rights under no longer be privacy concerns under the Health Insurance Portability and HIPAA. Again, it is OSHA’s policy Americans With Disabilities Act Accountability Act of 1996 (HIPAA), under the final rule not to release any The New York Farm Bureau (NYFB) Public Law 104–191. Some of these individually-identifiable information. commented that the Americans with commenters stated that the HIPAA As discussed elsewhere in this Disabilities Act of 1990 (ADA), 42

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U.S.C. 12101 et seq. prohibits the information about an employee’s the Form 301. In establishing a release of health and disability-related medical condition or history, requirement for electronic reporting in a information (Ex. 1370). NYFB determined to be necessary to preserve particular software format OSHA will be specifically requested that OSHA the health and safety of employees and mandating the use of a specific form and explain how compliance with the the public. See, H.R. Rep. No. 101–485 eliminating the widespread use of electronic reporting requirement can be pt. 2, 101st Cong., 2d Sess. 74–75 equivalent forms by employers. This accomplished while meeting the (1990), reprinted in 1990 U.S.C.C.A.N. change has not been identified or requirements of the ADA. 356, 357 (noting, e.g. medical evaluated (benefits, or lack thereof) In response, OSHA notes that Section surveillance requirements of standards under the Paperwork Reduction Act 12112(d)(3)(B) of the ADA permits an promulgated under OSH Act and federal provisions applicable to this employer to require a job applicant to Mine Safety and Health Act, and stating rulemaking. Littler believes that the submit to a medical examination after ‘‘[t]he Committee does not intend for incremental benefit (if any) proposed in an offer of employment has been made [the ADA] to override any medical this rulemaking is significantly but before commencement of standard or requirement established by outweighed by the increased paperwork employment duties, provided that federal . . . law . . . that is job-related duplication which would be created by medical information obtained from the and consistent with business the use of mandatory forms and examination is kept in a confidential necessity’’). See also, 29 CFR part 1630 elimination of equivalent forms’’ (Ex. medical file and not disclosed except as App. p. 356. The ADA recognizes the 1385). necessary to inform supervisors, first aid primacy of federal safety and health In response, OSHA notes that existing and safety personnel, and government regulations; therefore such regulations, § 1904.29(a) provides that employers officials investigating compliance with including mandatory OSHA must use the OSHA 300 Log, 301 the ADA. Section 12112(d)(4)(C) recordkeeping requirements, pose no Incident Report, and 300A Annual requires that the same confidentiality conflict with the ADA. Cf. Albertsons, Summary, or equivalent forms, when protection be accorded health Inc. v. Kirkingburg, 527 U.S. 555, (1999) recording injuries and illnesses under information obtained from a voluntary (‘‘When Congress enacted the ADA, it part 1904. Section 1904.29(b)(4) states medical examination that is part of an recognized that federal safety and health that an equivalent form is one that has employee health program. rules would limit application of the the same information, is as readable and By its terms, the ADA requires ADA as a matter of law.’’). understandable, and is completed using confidentiality for information obtained The EEOC has also recognized both in the same instructions as the OSHA form from medical examinations given to the implementing regulations at 29 CFR it replaces. OSHA is aware that many prospective employees, and from part 1630, as well as in interpretive employers use an insurance form medical examinations given as part of a guidelines, that the ADA yields to the instead of the 301 Incident Report, or voluntary employee health program. requirements of other federal safety and supplement an insurance form by The OSHA injury and illness records are health standards and regulations. The adding any additional information not derived from pre-employment or implementing regulation codified at 29 required by OSHA. As discussed above, under the final voluntary health programs. The CFR 1630.15(e) explicitly states that an information in the OSHA injury and rule, employers have two options for employer’s compliance with another illness records is similar to that found submitting recordkeeping data to federal law or regulation may be a in workers’ compensation forms, and OSHA’s secure Web site. First, defense to a charge of violating the may be obtained by employers by the employers can directly enter data in a ADA. same process used to record needed web form. Second, employers will be Additionally, the EEOC Technical information for workers’ compensation provided with a means of electronically Assistance Manual on the ADA states and insurance purposes. The Equal transmitting the information, including that the ‘‘ADA does not override health Employment Opportunity Commission information from equivalent forms, to and safety requirements established (EEOC), the agency responsible for OSHA. This is similar to how BLS under other Federal laws . . . For administering the ADA, recognizes a collects data from establishments under example, . . . Employers also must partial exception to the ADA’s strict the SOII. Accordingly, the final rule conform to health and safety confidentiality requirements for medical does not change the option for requirements of the U.S. Occupational information regarding an employee’s employers to use alternate or equivalent Safety and Health Administration occupational injury or workers’ forms when recording OSHA injuries (OSHA).’’ For these reasons, OSHA does compensation claim. See EEOC and illnesses. Enforcement Guidance: Workers’ not believe that the mandatory No Fault Recordkeeping Policy Compensation and the ADA, 5 submission and publication (September 3, 1996). Therefore, it is not requirements in § 1904.41 of this final There were many comments that the clear that the ADA applies to the OSHA rule conflict with the confidentiality proposed rule would reverse OSHA’s injury and illness records. provisions of the ADA. long-standing ‘‘no fault’’ recordkeeping Even assuming that the OSHA injury Other Issues policy (Exs. 0160, 0174, 0179, 0192, and illness records fall within the literal 0218, 0224, 0240, 0251, 0255, 1084, scope of the ADA’s confidentiality Alternate Forms 1091, 1092, 1093, 1109, 1113, 1123, provisions, it does not follow that a Some commenters commented that 1191, 1192, 1194, 1197, 1199, 1200, conflict arises. The ADA states that the requirement for electronic 1214, 1218, 1272, 1273, 1276, 1279, ‘‘nothing in this Act shall be construed submission of part 1904 injury and 1323, 1324, 1328, 1329, 1334, 1336, to invalidate or limit the remedies, illness data will lead to the elimination 1338, 1342, 1343, 1349, 1359, 1370, rights, and procedures of any federal of alternate or equivalent recordkeeping 1386, 1391, 1394, 1397, 1399, 1401, law.’’ See, 29 U.S.C. 12201(b). In forms by employers (Exs. 1385, 1399). 1411, 1427). For example, the Coalition enacting the ADA, Congress was aware Littler Mendelson, P.C. commented: for Workplace Safety commented that that other federal standards imposed ‘‘Many employers utilize equivalent ‘‘[i]n 2001, OSHA revised the requirements for testing an employee’s forms—particularly insurance and recordkeeping requirements and the health, and for disseminating accident investigation forms in place of foundation of those revisions in what

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OSHA deemed a ‘‘no-fault’’ system . . . assist employers, employees, employee OSHA further notes that data For a variety of reasons OSHA representatives, researchers, and the collection under final § 1904.41(a)(3) concluded that a ‘‘geographic’’ government to better identify and would be subject to the Paperwork presumption was the most correct workplace hazards. Reduction Act, which provides that comprehensive way to achieve OSHA also disagrees with federal agencies generally cannot Congress’s objective for determining commenters who suggested that the conduct or sponsor a collection of work-related injuries and illness. Agency will use the ‘‘no fault’’ information, and the public is not However, at the same time, OSHA recordkeeping system to target required to respond to an information recognized that the ‘‘geographic’’ employers for enforcement efforts. As collection, unless it is approved by presumption did not necessarily discussed elsewhere in this preamble, OMB and displays a valid OMB Control correlate to an employer’s behavior and and consistent with the Agency’s Number. Also, pursuant to the PRA, therefore injuries and illness that were longstanding practice, OSHA will use a notice of information collections must beyond an employer’s control would be neutral administrative plan when be published in the Federal Register. As recorded . . . [n]ow, OSHA intends to targeting employers for onsite a result, employers will be able to use this no-fault system to target inspection, similar to how the Agency determine which employers are within employers for enforcement efforts, to has administered enforcement activities a survey group and which information shame employers into compliance, to under the Site-Specific Targeting will be collected each year before the allow members of the public to make program. survey begins. Once a survey has been decisions about with which companies Section 1904.41(a)(3) Seems To Give given an OMB control number under the to do business, and to allow current OSHA Unlimited Power PRA, any substantive or material employees to compare their workplaces modification would require a new PRA Andrew Sutton commented that the to the ‘‘best’’ workplaces for safety and clearance. language in proposed § 1904.41(a)(3) health. This proposed regulation In addition, final § 1904.41(b)(7) appears to give OSHA ‘‘unfettered fundamentally upends the no-fault provides that employers who are discretion.’’ This section would have system that OSHA originally adopted in partially exempt from keeping injury provided that upon notification, you 2001’’ (Ex. 1411). The International and illness records under existing must electronically send to OSHA or Association of Drilling Contractors §§ 1904.1 and/or 1904.2 are required to OSHA’s designee the requested (IADC) also commented that ‘‘the submit recordkeeping data only if information, at the specified time presumption under the NPRM is that all OSHA notifies them they will be interval, from the records that you keep injuries or illnesses are preventable, required to participate in a particular under part 1904. According to the information collection under suggesting all incidents are the fault of commenter, this section might be seen the employer. The proposal essentially § 1904.41(a)(3). OSHA will notify these to give too much power to OSHA for ad employers in writing in advance of the turns the ‘‘no fault’’ reporting system hoc data collection: ‘‘In fact, the into one where employers will be year for which injury and illness records authority contained in this section will be required. blamed for idiosyncratic events arising could be said to make the whole rest of as a result of forces beyond their control 1904.41 redundant; OSHA could enact D. The Final Rule or actions by workers in direct the whole rest of the proposed The final rule is similar to the contravention of workplace rules. This regulation via the power granted here.’’ proposed rule in requiring employers to is a clear abandonment of the ‘‘no-fault’’ (Ex. 0245). electronically submit part 1904 records system in favor of OSHA’s controversial In response, OSHA notes that, like the to OSHA. However, there are also and counterproductive ‘‘regulation by proposed rule, § 1904.41(a)(3) of the rule several differences from the proposed shaming’’ enforcement doctrine. requires that, upon request, employers rule. The major differences between the Surprisingly, OSHA fails to even must electronically submit their OSHA final rule and the proposed rule include acknowledge its reversal, or provide any part 1904 records to OSHA or OSHA’s the following: justification or an analysis for this designee. This section replaces OSHA’s 1. In the final rule, establishments significant change’’ (Ex. 1199). existing regulation at § 1904.41, Annual with 250 or more employees that are In response, OSHA disagrees with OSHA injury and illness survey of ten or required to keep part 1904 records must commenters who commented that the more employers. In recent years, OSHA electronically submit some of the Agency has reversed its ‘‘no fault’’ has used the authority in § 1904.41 to information from the three recordkeeping policy. The Note to conduct surveys through the OSHA Data recordkeeping forms that they keep § 1904.0 of OSHA’s existing Initiative (ODI). under part 1904 (OSHA Form 300A recordkeeping regulation continues to It has never been OSHA’s intention to Summary of Work-Related Injuries and provide that the recording or reporting exercise unfettered discretion when Illnesses, OSHA Form 300 Log of Work- of a work-related injury, illness, or collecting injury and illness records. Related Injuries and Illnesses, and fatality does not mean that an employer Like the existing regulation, OSHA Form 301 Injury and Illness or employee was at fault, that an OSHA § 1904.41(a)(3) of the final rule provides Incident Report) to OSHA or OSHA’s rule has been violated, or that the OSHA with authority to conduct designee once a year. In the proposed employee is eligible for workers’ surveys of employers regarding their rule, these establishments would have compensation or other benefits. As occupational injuries and illnesses. been required to electronically submit noted elsewhere in this preamble, the Historically, the information collected all of the information from the OSHA purpose of this rulemaking is to through these surveys has assisted Form 300 and OSHA Form 301 improve workplace safety and health OSHA in identifying trends in quarterly, and electronically submit all through the collection of useful, workplace hazards, evaluating the of the information from the OSHA Form accessible, establishment-specific injury effectiveness of OSHA enforcement 300A annually. and illness data to which OSHA activities, and gathering information for 2. In the final rule, for establishments currently does not have direct, timely, the promulgation of new occupational with 20 to 249 employees, the list of and systematic access. The information safety and health standards and designated industries who must report acquired through this final rule will regulations. in appendix A to subpart E of part 1904

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is based on a three-year average of BLS reporting of information from OSHA to provide the States with the flexibility data from 2011, 2012, and 2013. In the Form 300 and OSHA Form 301 by to participate in the OSHA Data proposed rule, the list of designated establishments with 250 or more Initiative under the federal requirements industries in appendix A to subpart E of employees will also lessen the burden of or the State’s own regulation (66 FR part 1904 would have been based on data collection on both employers and 5916–6135). At its outset, Federal OSHA one year of BLS data from 2009. OSHA. conducted the OSHA data collection in Under the final rule, employers have Note that OSHA will phase in all of the states, including those which the following requirements: implementation of the data collection administered approved State Plans. 1. § 1904.41(a)(1)—Establishments system. In the first year, all However, Federal OSHA then began to with 250 or more employees that are establishments required to routinely collect data only in the State-Plan States required to keep part 1904 records must submit information under the final rule that wished to participate. The current electronically submit the required will be required to submit only the § 1902.7(d) allowed the individual information from the three information from the Form 300A (by States to decide, on an annual basis, recordkeeping forms that they keep July 1, 2017). In the second year, all whether or not they would participate under part 1904 (OSHA Form 300A establishments required to routinely in the OSHA data collection. If the State Summary of Work-Related Injuries and submit information under the final rule elected to participate, the State could Illnesses, OSHA Form 300 Log of Work- will be required to submit all of the either adopt and enforce the Related Injuries and Illnesses, and required information (by July 1, 2018). requirements of current § 1904.41 as an OSHA Form 301 Injury and Illness This means that, in the second year, identical or more stringent State Incident Report) to OSHA or OSHA’s establishments with 250 or more regulation, or could defer to the federal designee annually. This information employees that are required to routinely regulation and federal enforcement with must be submitted no later than March submit information under the final rule regard to the mandatory nature of the 2 of the year after the calendar year will be responsible for submitting survey. If the State deferred to the covered by the form. The establishments information from the Forms 300, 301, current federal § 1904.41 regulation, are not required to submit the following and 300A. In the third year, all OSHA’s authority to implement the ODI information: establishments required to routinely was not affected either by operational a. Log of Work-Related Injuries and submit under this final rule will be agreement with a State-Plan State or by Illnesses (OSHA Form 300): Employee required to submit all of the required the granting of final State-Plan approval name (column B). information (by March 2, 2019). This under section 18(e). b. Injury and Illness Incident Report means that beginning in the third year In this rulemaking, the proposed rule (OSHA Form 301): Employee name (2019), establishments with 250 or more would have required State-Plan States to (field 1), employee address (field 2), employees will be responsible for adopt requirements identical to those in name of physician or other health care submitting information from the Forms 29 CFR 1904.41 in their recordkeeping professional (field 6), facility name and 300, 301, and 300A, and establishments and reporting regulations as enforceable address if treatment was given away with 20–249 employees in an industry State requirements, as provided in from the worksite (field 7). listed in appendix A to subpart E of part 2. § 1904.41(a)(2)—Establishments section 18(c)(7) of the OSH Act. The 1904 will be responsible for submitting data collected by OSHA as authorized with 20–249 employees that are information from the Form 300A by classified in a designated industry listed by § 1904.41 would have been made March 2 each year. This will provide available to the State-Plan States. in appendix A to subpart E of part 1904 sufficient time to ensure comprehensive must electronically submit the required Nothing in any State Plan would have outreach and compliance assistance in affected the duties of employers to information from the OSHA Form 300A advance of implementation. annually to OSHA or OSHA’s designee. comply with § 1904.41. In addition, consistent with E.O. Three State-Plan States submitted This information must be submitted no 13563, OSHA plans to conduct a comments on the proposed rule— later than March 2 of the year after the retrospective review, once the Agency Kentucky (Ex. 208), North Carolina (Ex. calendar year covered by the form. has collected three full years of data. 1195), and California (Ex. 1395). 3. § 1904.41(a)(3)—Establishments OSHA will use the findings of the must electronically submit the However, they did not comment retrospective review to assess the specifically on this part of the proposed requested information from their part electronic submission requirements in 1904 records to OSHA or OSHA’s rule. OSHA also did not receive any the final rule and modify them as other comments on this part of the designee after notification from OSHA. appropriate and feasible. Overall, the final rule’s provisions proposed rule. requiring regular electronic submission IV. Section 1902.7—Injury and Illness The final rule is the same as the of injury and illness data will allow Recording and Reporting Requirements proposed rule. State-Plan States must OSHA to obtain a much larger database In 1997, OSHA issued a final rule at adopt requirements identical to those in of timely, establishment-specific § 1904.17, OSHA Surveys of 10 or More 29 CFR 1904.41 in their recordkeeping information about injuries and illnesses Employers that required employers to and reporting regulations as enforceable in the workplace. This information will submit occupational injury and illness State requirements, as provided in help OSHA use its resources more data to OSHA when sent a survey form. section 18(c)(7) of the OSH Act. OSHA effectively by enabling OSHA to identify The § 1904.17 rule enabled the Agency will make the data collected by OSHA the workplaces where workers are at to conduct a mandatory survey of the under this final rule available to the greatest risk. This information will also 1904 data, which was named the OSHA State Plan States. Nothing in any State help OSHA establish a comprehensive Data Initiative (ODI). When OSHA plan will affect the duties of employers database that the Agency, researchers, issued the 1997 rule, the Agency to comply with § 1904.41. and the public can use to identify determined that the States were not V. Section 1904.35 and Section 1904.36 hazards related to reportable events and required to adopt a rule comparable to to identify industries and processes the federal § 1904.17 rule (62 FR 6441). A. Background where these hazards are prevalent. The In 2001, § 1952.4(d) (now § 1902.7(d)) One of the goals of the final rule is to change from quarterly to annual was added to the final rule to continue ensure the completeness and accuracy

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of injury and illness data collected by illness records are governed by proposal explained the substance of the employers and reported to OSHA. § 1904.35(b)(2). Section 1904.35(a)(3) proposed rule and the subjects and Therefore, § 1904.35 of the final rule does not alter any of the substantive issues involved. In addition, the contains three new provisions that rights or limitations contained in specificity and detail of the comments promote complete and accurate § 1904.35(b)(2). OSHA received indicate that reporting of work-related injuries and commenters understood the issues B. The Proposed Rule illnesses by requiring employers to under discussion. Furthermore, as provide certain information on injury On January 9 and 10, 2014, OSHA discussed below, the final regulatory and illness reporting to employees, held a public meeting to discuss the text closely tracks the concepts and clarifying that employer reporting November 8, 2013 Notice of Proposed language used in the proposal, meaning procedures must be reasonable, and Rulemaking. Many meeting participants the proposal provided sufficient notice prohibiting employers from retaliating expressed concern that the proposal to to the public of the conduct to be against employees for reporting work- publish establishment-specific injury prohibited. See Chocolate Mfrs. Ass’n v. related injuries and illnesses, consistent and illness data on OSHA’s publicly Block, 755 F.2d 1098, 1105 (4th Cir. with the existing prohibition in section available Web site might cause an 1985) (notice is sufficient as long as the 11(c) of the OSH Act. increase in the number of employers final rule is a ‘‘logical outgrowth’’ from In the initial comment period and at that adopt policies or practices that have the notice). Therefore, the supplemental the public meeting, many commenters the effect of discouraging or deterring notice to the proposed rule provided expressed concern that the public employees from reporting, including adequate notice for commenters. availability of OSHA data would policies that result in retaliation against Other commenters, including the motivate some employers to under- employees who report work-related American Coatings Association, stated record injuries and illnesses, in part by injuries and illnesses. See, e.g., Exs. that the amendments suggested by the attempting to reduce the number of 0165, 01–09–2014 Tr. at 33–40. Such supplemental proposal were outside the recordable injuries and illness their policies and practices, when successful scope of the original November 8, 2013 employees report to them. See, e.g., Exs. in deterring employee reporting, would proposal (Ex. 1548). OSHA agrees that 0114, 1327, 1647, 1648, 1651, 1675, undermine the benefits of the rule by these changes to §§ 1904.35 and 1904.36 1695. Exs. 0165, 01–09–2014 Tr. at 54– compromising the accuracy of records were outside the scope of the original 55; 01–10–2014 Tr. at 52–55. In and result in injustice for employees proposal. That is why OSHA published addition, commenters in both comment who do report their work-related a supplemental proposal and extended periods pointed to numerous studies injuries and illnesses and then suffer the public comment period. The final finding that under-recording is already retaliation for doing so. OSHA seeks to amendments to §§ 1904.35 and 1904.36 a serious issue. See, e.g., Exs. 1675, ensure that employers, employees, and are within the scope of the 1679, 1685, 1695. OSHA concludes that the public have access to the most supplemental proposal, and are the rulemaking record supports these accurate data possible about injuries therefore permissible under the concerns. Therefore, this final rule and illnesses in workplaces so that they Administrative Procedure Act. includes provisions intended to can take the most appropriate steps to C. The Final Rule promote accurate recording of work- protect worker safety and health. related injuries and illnesses by Therefore, on August 14, 2014, OSHA The final rule includes three new preventing the under-recording that issued a Supplemental Notice of provisions in § 1904.35. These arises when workers are discouraged Proposed Rulemaking to address this provisions follow directly and logically from reporting these occurrences. The issue. OSHA requested comment on from the August 14, 2014 Supplemental rule also establishes an additional ‘‘whether to amend the proposed rule to Notice of Proposed Rulemaking. First, mechanism for OSHA to enforce the (1) require that employers inform their the final rule amends paragraphs (a)(2) existing statutory prohibition on employees of their right to report and (b)(1)(iii) to require employers to employer retaliation against employees. injuries and illnesses; (2) require that inform employees of their right to report Specifically, the rule makes three any injury and illness reporting work-related injuries and illnesses free changes to §§ 1904.35 and 1904.36 requirements established by the from retaliation. Second, paragraph consistent with the proposed changes employer be reasonable and not unduly (b)(1)(i) of the final rule clarifies that the set forth in the August 14, 2014 burdensome; and (3) prohibit employers reporting method already implicitly Supplemental Notice of Proposed from taking adverse action against required by this section must be Rulemaking. The final rule (1) requires employees for reporting injuries and reasonable and not deter or discourage employers to inform employees of their illnesses.’’ employees from reporting. And third, right to report work-related injuries and Some commenters took issue with paragraph (b)(1)(iv) of the final rule illnesses free from retaliation; (2) procedural aspects of the supplemental prohibits employers from retaliating clarifies the existing implicit notice to the propose rule. A few against employees for reporting work- requirement that an employer’s commenters asserted that the related injuries or illnesses under procedure for reporting work-related supplemental notice to the proposed section 1904.35 consistent with the injuries and illnesses must be rule denied the public the opportunity existing prohibition contained in reasonable and not deter or discourage to meaningfully comment because it did section 11(c) of the OSH Act. employees from reporting; and (3) not include proposed regulatory text prohibits employers from retaliating and was not specific enough about what Section 1904.35, Paragraphs (a)(2) and against employees for reporting work- conduct was to be prohibited. Exs. 1566, (b)(1)(iii): Employee Information on related injuries or illnesses, consistent 1650. However, under the Reporting with the existing prohibition in section Administrative Procedure Act, proposed The final rule strengthens paragraph 11(c) of the OSH Act. regulatory text is not required; agencies (a) of § 1904.35 by expanding the The final rule also makes a technical must only include ‘‘either the terms or previous requirement for employers to edit to § 1904.35(a)(3) to clarify that the substance of the proposed rule or a inform employees how to report work- rights of employees and their description of the subjects and issues related injuries and illnesses so that the representatives to access injury and involved.’’ 5 U.S.C. 553(b)(3). Here, the rule now includes a mandate to inform

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employees that they have a right to already required employers to set up a serious enough to be recordable. The report work-related injuries and way for employees to report work- United Food and Commercial Workers illnesses free from retaliation by their related injuries and illnesses promptly. International Union provides several employer as described in paragraph The final rule adds new text to clarify examples of food processing workers (b)(1)(iii) of the final rule. OSHA has that reporting procedures must be receiving discipline for ‘‘late’’ reporting determined that this enhanced reasonable, and that a procedure that where it was not reasonable to have information-provision requirement will would deter or discourage reporting is expected the injured employee to report improve employee and employer not reasonable, as explained in a 2012 earlier. In one such case, a worker understanding of their rights and OSHA enforcement memorandum. See reported shoulder and neck pain that responsibilities related to injury and OSHA Memorandum re: Employer had developed gradually due to work- illness reporting and thereby promote Safety Incentive and Disincentive related repetitive motions beginning one more accurate reporting. Policies and Practices (Mar. 12, 2012). week earlier. Although there was no The rulemaking record supports Although the substantive obligations of single incident that precipitated the OSHA’s determination that requiring employers will not change, the final rule injury, the worker received a ‘‘final employers to inform employees of their will have an important enforcement warning’’ for failure to ‘‘timely report an reporting rights will improve the quality effect for the minority of employers who injury’’ (Ex. 1679). This policy was not of employers’ injury and illness records. do not currently have reasonable reasonable because it did not allow for Commenters provided numerous reporting procedures. reporting within a reasonable time after examples and studies showing that The rulemaking record supports the employee realized that he or she had many employees avoid reporting OSHA’s decision to include these suffered a work-related injury. injuries and illnesses because they are clarifying revisions to paragraph (b)(1)(i) OSHA disagrees with comments that afraid that doing so will result in in the final rule. Commenters cited express support for employers who retaliation. For example, Lipscomb et al. studies suggesting that employees are require immediate reporting of injuries (2012) found that many carpenters’ deterred from reporting injuries and and illnesses on the grounds that such apprentices avoided reporting injuries illnesses where the procedure for doing requirements are necessary for accurate and filing workers compensation claims so is too difficult. For example, Scherzer recordkeeping, to prevent fraud, and to because they feared discipline, et al. (2005) found that many hotel room address injuries before they get worse termination, or other adverse action. cleaners failed to report work-related (Exs. 1449, 1658, 1663). OSHA Exs. 1648, 1675, 1695. Other researchers pain to management because it took too recognizes that employers have a discovered similar fears among a variety many steps to do so (Ex. 1695). The legitimate interest in maintaining of worker populations. See, e.g., Moore revisions to paragraph (b)(1) clarify that accurate records and ensuring that et al. (2013) (construction), Southern such unduly burdensome reporting employees are reporting genuine work- Poverty Law Center and Alabama procedures would violate the final rule. related injuries and illnesses in a Appleseed (2013) (poultry processing), Commenters also raised concerns reasonably prompt manner. These Nebraska Appleseed (2009) about rigid prompt-reporting interests, however, must be balanced (meatpacking), Lashuay and Harrison requirements in place at some with fairness to employees who cannot (2006) (California low-wage workers), workplaces that have resulted in reasonably discover their injuries or Scherzer et al. (2005) (hotel room employee discipline for late reporting illnesses within a rigid reporting period cleaners), Pransky et al. (1999) even though employees could not and with the overriding objective of part (manufacturing) (Exs. 1648, 1675, 1685, reasonably have reported their injuries 1904 to ensure that all recordable work- 1695). See also below regarding actual or illnesses earlier. See, e.g., Exs. 1675, related injuries and illnesses are retaliation against workers for reporting 1679, 1695, 1696. Several of these recorded. Accordingly, for a reporting work-related injuries and illnesses. A commenters highlighted issues related procedure to be reasonable and not 2009 survey by the U.S. Government to musculoskeletal disorders because unduly burdensome, it must allow for Accountability Office (GAO) found that such disorders develop over time and reporting of work-related injuries and two thirds of occupational health therefore cannot be reported illnesses within a reasonable timeframe practitioners observed worker fear of immediately after an individual after the employee has realized that he disciplinary action for reporting incident. The comment by the AFL–CIO or she has suffered a work-related injury workplace injuries and illnesses (Exs. (Ex. 1695) typifies the views of these or illness. A few commenters questioned 1675, 1695). Although some commenters: commenters questioned whether whether reporting of work-related underreporting is a real problem, the Many employers have policies that require injuries and illnesses is properly examples and studies cited above have the immediate reporting of a work-related characterized as an employee right, as convinced OSHA that employee fear of injury by the worker, and for some employers opposed to an employee obligation. The failure to follow this requirement will result Act provides that employees and retaliation is a real barrier to reporting in discipline, regardless of the circumstances. of work-related injuries and illnesses In some cases workers may be unaware that employers ‘‘have separate but and that the information-provision they have suffered an injury, since the pain dependent responsibilities and rights requirements in the final rule will allay or symptoms do not manifest until later . . . with respect to achieving safe and workers’ fear of retaliation and lead to This is particularly true for musculoskeletal healthful working conditions.’’ 29 more accurate reporting. injuries. The worker reports the injury when U.S.C. 651(b)(2). Part 1904 imposes the they recognize it has occurred, but are obligation to record and report work- Section 1904.35(b)(1)(i): Reasonable disciplined because the reporting did not related injuries and illnesses on the Reporting Procedures occur until after the event that caused the employer. See 29 CFR 1904.4. In turn, The final rule amends paragraph injury occurred. employers may require employees to (b)(1)(i) of § 1904.35 to state explicitly OSHA shares these concerns. report work-related injuries and that employer procedures for employee Employer reporting requirements must illnesses, as long as the procedures for reporting of work-related illnesses and account for injuries and illnesses that doing so are reasonable and the injuries must be reasonable. The build up over time, have latency employer does not retaliate against previous version of § 1904.35(b)(1)(i) periods, or do not initially appear employees when they report.

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Some commenters expressed concern Practices (Mar. 12, 2012). OSHA U.S.C. 657(c)(2)) to require employers to that the requirement described in the believes only a minority of employers maintain accurate records of work- proposed rule—that reporting engages in prohibited retaliation, and related injuries and illnesses. procedures ‘‘be reasonable and not the final rule will enable more effective OSHA anticipates that feasible unduly burdensome’’—was ambiguous enforcement against those employers. abatement methods for violations of and vague. See, e.g., Exs. 1532, 1566. A number of commenters stated that paragraph (b)(1)(iv) will mirror some of The final rule provides that employers there is no need to amend § 1904.35 to the types of remedies available under must establish a ‘‘reasonable’’ procedure prohibit retaliating against employees section 11(c); the goal of abatement for employees to report work-related for reporting injuries and illnesses would be to eliminate the source of the injuries and illnesses and clarifies that because Section 11(c) of the Act already retaliation and make whole any a reporting procedure is not reasonable prohibits such retaliation. See, e.g., Exs. employees treated adversely as a result if it would deter or discourage a 1473, 1549, 1655, 1662. OSHA of the retaliation. For example, if an reasonable employee from reporting. disagrees. Although the substantive employer terminated an employee for OSHA did not include the phrase obligations of employers will not change reporting a work-related injury or ‘‘unduly burdensome’’ in the final rule. under the new rule, the rule will have illness, a feasible means of abatement The ‘‘reasonable person’’ standard is an an important enforcement effect. would be to reinstate the employee with objective standard that is well- Section 11(c) only authorizes the back pay. See McKennon v. Nashville established and applied in many areas Secretary to take action against an Banner Pub. Co., 513 U.S. 352, 362 of the law, and which can be applied by employer for retaliating against an (1995) (citing Franks v. Bowman laypeople without the use of experts. employee for reporting a work-related Transp. Co., 424 U.S. 747, 764 (1976)) See Godfrey v. Iverson, 559 F.3d 569, illness or injury if the employee files a (‘‘[T]he object of compensation is to 572 (D.C. Cir. 2009). OSHA believes the complaint with OSHA within 30 days of restore the employee to the position he final rule’s requirement that employers the retaliation. 29 U.S.C. 660(c). The or she would have been in absent the establish a reporting procedure that final rule provides OSHA with an discrimination.’’); St. Joe Resources, 916 would not deter or discourage a additional enforcement tool for ensuring F.2d at 299 (Occupational Safety and reasonable employee from reporting the accuracy of work-related injury and Health Review Commission may order work-related injuries and illnesses is illness records that is not dependent on employers to pay back pay as abatement sufficiently clear to notify employers of employees filing complaints on their for violations of the MRP requirements). their obligations under the rule while own behalf. Some employees may not If an employer retaliates against an giving employers flexibility to design have the time or knowledge necessary to employee for reporting a work-related policies that make sense for their file a section 11(c) complaint or may illness or injury by denying a bonus to workplaces. Like the previous version of fear additional retaliation from their a group of employees, feasible means of the rule, the final rule imposes a employer if they file a complaint. The abatement could include revising the performance requirement rather than final rule allows OSHA to issue bonus policy to correct its retaliatory prescribing specific procedures citations to employers for retaliating effect and providing the bonus employers must establish, and therefore against employees for reporting work- retroactively to all of the employees gives employers flexibility to tailor their related injuries and illnesses and who would have received it absent the programs to the needs of their require abatement even if no employee retaliation. workplaces. See 66 FR 6052 (Jan. 19, has filed a section 11(c) complaint. Some commenters acknowledged that 2001). Additionally, as noted by one the proposed rule gives OSHA commenter, adding a prohibition on additional enforcement tools but argued Section 1904.35(b)(1)(iv): Prohibition of retaliation to part 1904 provides clear that doing so impermissibly interferes Discrimination Against Employees for notice to employers of what actions are with section 11(c) by infringing on an Reporting a Work-Related Injury or prohibited, which will help to prevent employee’s right to bring a section 11(c) Illness retaliatory acts from occurring in the claim and by eliminating section 11(c)’s The final rule adds paragraph first place (Ex. 1561). In other words, 30-day window for employees to bring (b)(1)(iv) to § 1904.35 to incorporate the final rule serves a preventive complaints. The final rule does not explicitly into part 1904 the existing purpose as well as a remedial one. The abrogate or interfere with the rights or prohibition on retaliating against new rule also differs from section 11(c) restrictions contained in section 11(c). employees for reporting work-related because it is specifically designed to An employee who wishes to file a injuries or illnesses that is already promote accurate recordkeeping. For complaint under section 11(c) may do imposed on employers under section comparison, under the medical removal so within the statutory 30-day period 11(c) of the OSH Act. As discussed in protection (MRP) provision of the lead regardless of whether OSHA has issued, the Legal Authority section of this standard, if an employer denies MRP or will issue, a citation to the employer preamble, paragraph (b)(1)(iv) of the benefits in retaliation for an employee’s for violating the final rule. OSHA final rule does not change the exercise of a right under the Act, OSHA believes that many employees will substantive obligations of employers. can cite the employer and seek the continue to file 11(c) complaints Rather, paragraph (b)(1)(iv) provides benefits as abatement, because payment because of the broader range of OSHA an enhanced enforcement tool for of the benefits is important to vindicate equitable relief and punitive damages ensuring the accuracy of employer the health interests underlying MRP; available under that provision. Finally, injury and illness logs. Section 1904.36 section 11(c) is not an exclusive remedy. one commenter suggested that of the final rule further clarifies that United Steelworkers, AFL–CIO v. St. Joe retaliation cases are too complex and section 11(c) also prohibits retaliating Resources, 916 F.2d 294, 298 (5th Cir. fact-based to be suitable subjects of against employees for reporting work- 1990). Likewise, here OSHA can cite enforcement citations. Ex. 1645. OSHA related injuries or illnesses, as employers under the final rule in order disagrees. OSHA regularly issues explained in the 2012 OSHA to advance the rule’s purpose of citations based on complex factual enforcement memorandum. See OSHA promoting accurate recordkeeping, scenarios and will provide its staff with Memorandum re: Employer Safety which is grounded in OSHA’s authority appropriate training about enforcing the Incentive and Disincentive Policies and under Section 8(c)(2) of the OSH Act (29 final rule.

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Discrimination citable under intimidation’’ are used by employers to who engage in such pretextual paragraph (b)(1)(iv) could include discourage reporting. See Hidden disciplinary actions. termination, reduction in pay, Tragedy: Underreporting of Workplace OSHA believes that the majority of reassignment to a less desirable Injuries and Illnesses, Majority Staff employers do not discipline employees position, or any other adverse action Report by the Committee on Education unless they have actually broken a that ‘‘could well dissuade’’ a reasonable and Labor, U.S. House of legitimate workplace safety or health employee from reporting a work-related Representatives (June 2008); Exs. 1675, rule and do not selectively discipline injury or illness. See Burlington 1679, 1695. Under paragraph (b)(1)(iv) employees who violate legitimate work Northern & Santa Fe Railway Co. v. of the final rule, OSHA can issue rules only when they also report a work- White, 548 U.S. 53, 57 (2006) (holding citations to employers who discipline related injury or illness. But in the that the test for determining whether a workers for reporting injuries and minority of workplaces where particular action is materially adverse is illnesses when no legitimate workplace employers may sanction employees for whether it would deter a reasonable safety rule has been violated. reporting, it is no surprise that workers person from engaging in protected In addition, the United Steel, Paper are deterred from reporting because they activity under Title VII). The Burlington and Forestry, Manufacturing, Energy, fear the consequences of doing so. See Northern case considered whether a Allied Industrial and Service Workers above regarding worker fear of reporting particular action would deter a International Union (USW) identified a work-related injuries and illnesses. Data reasonable person from filing a claim of number of cases where employers collected during OSHA’s National Emphasis Program on Injury and Illness sex discrimination. In the context of the engaged in pretextual disciplinary Recordkeeping (Recordkeeping NEP) final rule, the test would be whether the actions—asserting that an employee was show that among the surveyed action would deter a reasonable being disciplined for violating a safety workplaces where such disciplinary employee from reporting a work-related rule where the real reason was the policies exist, approximately 50 percent injury or illness. Commenters placed employee’s injury or illness report (Ex. of workers reported that the policy substantial emphasis on three specific 1675). This includes situations when deterred reporting. See Analysis of types of policies, discussed in more reporting employees are disciplined OSHA’s National Emphasis Program on detail below: Disciplinary policies, post- more severely than other employees Injury and Illness Recordkeeping, accident drug testing policies, and who worked in the same way, or when employee incentive programs. Prepared for the Office of Statistical reporting employees are selectively Analysis, Occupational Safety and Commenters cited numerous disciplined for violation of vague work Health Administration, by ERG (Nov. 1, examples of employers disciplining rules such as ‘‘work carefully’’ or 2013); Ex. 1835. Therefore, OSHA employees who report injuries ‘‘maintain situational awareness.’’ expects that enforcement of the regardless of whether the employee Vague work rules are particularly provisions in the final rule will improve violated company safety policy. See, subject to abuse by the employer and the rate and accuracy of injury and e.g., Exs. 1675, 1679, 1681, 1691, 1695, would not be considered legitimate illness reporting. 1696. Although it is an employer’s duty workplace safety rules when they are OSHA received a number of to enforce safety rules, disciplining an used disproportionately to discipline comments expressing concern that this employee simply for reporting an injury workers who have reported an injury or section of the final rule will have a or illness deters employees from illness. In contrast, a legitimate chilling effect on employers disciplining reporting injuries and illnesses without workplace safety rule should require or employees who violate safety rules, improving safety. Numerous prohibit specific conduct related to thereby contributing to a less safe work commenters identified cases in which employee safety or health so it can be environment. It is important to note that employers suspended, reassigned, or applied fairly and not used as a pretext the final rule prohibits employers only even terminated employees simply for for retaliation. The AFL–CIO identified from taking adverse action against an being injured. See, e.g., Ex. 1695, a series of cases in which a Michigan employee because the employee attachment 16 (employee suspended, administrative law judge upheld reported an injury or illness. Nothing in placed on work restrictions, and findings of the Michigan Occupational the final rule prohibits employers from threatened with termination for having Safety and Health Administration that disciplining employees for violating too many OSHA-recordable injuries), AT&T used these types of vague safety legitimate safety rules, even if the same Ex. 1675 (employees suspended for policies as pretext for retaliating against employee who violated a safety rule also having been injured), Ex. 1681 employees who reported workplace was injured as a result of that violation (employees harassed and terminated for injuries. See Ex. 1695 (citing AT&T and reported that injury or illness reporting injuries or filing for workers Servs. v. Aggeler, No. D–11–242–1 (provided that employees who violate compensation), Ex. 1679 (employees (Mich. Admin. Hearing Sys., Jan. 13, the same work rule are treated similarly terminated for being injured). Some 2013); AT&T Servs. v. Wright, No. D– without regard to whether they also commenters pointed out progressive 11–101–1 (Mich. Admin. Hearing Sys., reported a work-related illness or disciplinary policies involving Apr. 8, 2013); AT&T Servs. v. Swift, No. injury). What the final rule prohibits is increasingly serious sanctions for D–11–200–1 (Mich. Admin. Hearing retaliatory adverse action taken against additional reports. See, e.g., Exs. 1675, Sys., Mar. 6, 2013); AT&T Servs. v. an employee simply because he or she 1695. Others pointed to employer West, No. D–11–311–1 (Mich. Admin. reported a work-related injury or illness. policies that make employees who Hearing Sys., Apr. 23, 2013)). And even Commenters also pointed to policies report injuries ineligible for promotions a legitimate work rule may not be mandating automatic post-injury drug (Ex. 1675) or automatically give poor applied selectively to discipline workers testing as a form of adverse action that performance evaluations to employees who report work-related illnesses or can discourage reporting. See, e.g., Exs. who report OSHA-recordable injuries injuries but not employees who violate 1675, 1695. Although drug testing of (Ex. 1696). A report by the U.S. House the same rule without reporting a work- employees may be a reasonable of Representatives Committee on related injury or illness. Paragraph workplace policy in some situations, it Education and Labor made a similar (b)(1)(iv) of the final rule authorizes is often perceived as an invasion of finding that many forms of ‘‘direct OSHA to issue citations to employers privacy, so if an injury or illness is very

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unlikely to have been caused by should limit post-incident testing to periodic prize drawings for items such employee drug use, or if the method of situations in which employee drug use as a large-screen television; workers drug testing does not identify is likely to have contributed to the who reported an OSHA-recordable impairment but only use at some time incident, and for which the drug test injury were excluded from the drawing. in the recent past, requiring the can accurately identify impairment Id. The American College of employee to be drug tested may caused by drug use. For example, it Occupational and Environmental inappropriately deter reporting. The would likely not be reasonable to drug- Medicine noted that many of its member U.S. House of Representatives test an employee who reports a bee physicians reported knowledge of Committee on Education and Labor has sting, a repetitive strain injury, or an situations where employers discouraged recognized that ‘‘to intimidate workers, injury caused by a lack of machine injury and illness reporting through employers may require that workers are guarding or a machine or tool incentive programs predicated on tested for drugs or alcohol [after every malfunction. Such a policy is likely workers remaining ‘‘injury free,’’ incident or injury], irrespective of any only to deter reporting without leading to peer pressure on employees potential role of drug intoxication in the contributing to the employer’s not to report (Ex. 1661). incident’’ (Exs. 1675, 1679, 1695). The understanding of why the injury In addition, in recent years, a number Committee also pointed to Scherzer et occurred, or in any other way of government reports have raised al. (2005), which found that 32 percent contributing to workplace safety. concerns about the effect of incentive of surveyed Las Vegas hotel workers Employers need not specifically suspect programs on injury and illness who reported work-related pain were drug use before testing, but there should reporting. A 2012 GAO study found that forced to take drug tests, even though be a reasonable possibility that drug use rate-based incentive programs, which studies like Krause et al. (2005) show by the reporting employee was a reward workers for achieving low rates that such injuries are often caused by contributing factor to the reported injury of reported injury and illnesses, may physical workload, work intensification, or illness in order for an employer to discourage reporting. Ex. 1695. Other, and ergonomic problems—not by require drug testing. In addition, drug more positive incentive programs, workplace mistakes that could have testing that is designed in a way that which reward workers for activities like been caused by drugs. Id. The American may be perceived as punitive or recommending safety improvements, National Standards Institute (ANSI) has embarrassing to the employee is likely did not have the same effect. A previous similarly recognized the need for drug to deter injury reporting. GAO study had also highlighted testing programs to be ‘‘carefully A few commenters also raised the incentive programs as a cause of designed and implemented to ensure concern that the final rule will conflict underreporting of work-related injuries employees are not discouraged from with drug testing requirements and illnesses (Exs. 1675, 1695). The effective participation in [injury and contained in workers’ compensation 2008 House Report listed examples of illness reporting programs]’’ (Ex. 1695). laws. This concern is unwarranted. If an problematic incentive programs and OSHA believes the evidence in the employer conducts drug testing to found that ‘‘depending on how an rulemaking record shows that blanket comply with the requirements of a state incentive program is structured, post-injury drug testing policies deter or federal law or regulation, the reluctance to lose the bonus or peer proper reporting. Morantz and Mas employer’s motive would not be pressure from other crew members (2008) conducted a study on a large retaliatory and the final rule would not whose prizes are also threatened retail chain and found that post- prohibit such testing. This is doubly reduces the reporting of injuries and accident drug testing caused a true because Section 4(b)(4) of the Act illnesses in the job, rather than reducing substantial reduction in injury claims. prohibits OSHA from superseding or the actual number of workplace injuries The authors found suggestive evidence affecting workers’ compensation laws. and illnesses’’ (Exs. 1675, 1679, 1695). that at least part of that reduction was 29 U.S.C. 653(b)(4). In 2006, a report by the California State due to the reduced willingness of Finally, many commenters expressed Auditor found that an employee employees to report accidents (Ex. concern with the retaliatory nature of incentive program had likely caused the 1675). Crant and Bateman (1989) the employee incentive programs at significant underreporting of injuries by describe privacy concerns and other some workplaces, providing myriad the company working on reconstruction individual factors that can affect examples. See, e.g., Exs. 1661, 1675, of a portion of the San Francisco Bay employee willingness to participate in 1679, 1695. Employee incentive Bridge (Ex. 1695). The company offered drug testing programs and report programs take many forms. An employees monetary incentives up to accidents. Id. OSHA’s Recordkeeping employer might enter all employees $1,500 only if zero recordable injuries NEP data also supports that hypothesis who have not been injured in the were reported. This kind of incentive because many workers reported that previous year in a drawing to win a program is especially likely to such post-injury drug testing programs prize, or a team of employees might be discourage reporting because not only deterred reporting (Ex. 1695). awarded a bonus if no one from the will the injured employee not receive Some commenters stated their belief team is injured over some period of the prize after reporting an injury, but that drug testing of employees is time. Such programs might be well- the employee is even less likely to important for a safe workplace; some intentioned efforts by employers to report out of fear of angering or expressed concern that OSHA planned encourage their workers to use safe disappointing the coworkers who will a wholesale ban on drug testing (Exs. practices. However, if the programs are also be denied the prize, or because the 1667, 1674). To the contrary, this final not structured carefully, they have the coworkers actively pressure the worker rule does not ban drug testing of potential to discourage reporting of not to report. employees. However, the final rule does work-related injuries and illnesses OSHA has previously recognized that prohibit employers from using drug without improving workplace safety. incentive programs that discourage testing (or the threat of drug testing) as The USW provided many examples of employees from reporting injuries and a form of adverse action against employer incentive policies that could illnesses by denying a benefit to employees who report injuries or discourage reporting of work-related employees who report an injury or illnesses. To strike the appropriate injuries and illnesses. Ex. 1675. One illness may be prohibited by section balance here, drug testing policies employer had a policy that involved 11(c). See OSHA Memorandum re:

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Employer Safety Incentive and providing t-shirts to workers serving on U.S.C. 801 et seq.). The Agency Disincentive Policies and Practices safety and health committees; offering estimates that the rulemaking imposes (Mar. 12, 2012); see also ANSI/AIHA modest rewards for suggesting ways to far less than $100 million in annual Z10–2012, Ex. 1695, attachment 5 strengthen safety and health; or economic costs. In addition, it does not (‘‘incentive programs . . . should be throwing a recognition party at the meet any of the other criteria specified carefully designed and implemented to successful completion of company-wide by UMRA or the Congressional Review ensure employees are not discouraged safety and health training. See Revised Act for a significant regulatory action or from effective participation in [injury VPP Policy Memo #5: Further major rule. This Final Economic and illness reporting programs’’). The Improvements to the Voluntary Analysis (FEA) addresses the costs, same memorandum pointed out that, to Protection Programs (August 14, 2014). benefits, and economic impacts of the the extent incentive programs cause final rule. under-reporting, they can result in VI. Final Economic Analysis and The final rule will make four changes under-recording of injuries and Regulatory Flexibility Certification to the existing recording and reporting illnesses, which may lead to employer A. Introduction requirements in part 1904. These liability for inaccurate recordkeeping. changes in existing requirements differ Executive Orders 12866 and 13563 The latter concern is what is being somewhat from those in the proposed require that OSHA estimate the benefits, addressed by this final rule’s rule. costs, and net benefits of proposed and prohibition on employers using First, OSHA will require final regulations. Executive Orders incentive programs in a way that establishments that are required to keep 12866 and 13563, the Regulatory impairs accurate recordkeeping. injury and illness records under part Some commenters expressed Flexibility Act, and the Unfunded 1904, and that had 250 or more satisfaction with existing safety Mandates Reform Act also require employees in the previous year, to incentive programs that provide OSHA to estimate the costs, assess the electronically submit the required monetary incentives to employees who benefits, and analyze the impacts of information from all three OSHA maintain low blood lead levels, and certain rules that the Agency recordkeeping forms to OSHA or requested that OSHA not undermine promulgates. Executive Orders 12866 OSHA’s designee, on an annual basis. such programs (Exs. 1488, 1654, 1683). and 13563 direct agencies to assess all Second, OSHA will require OSHA does not intend the final rule to costs and benefits of available regulatory establishments that are required to keep categorically ban all incentive programs. alternatives and, if regulation is injury and illness records under part However, programs must be structured necessary, to select regulatory 1904, had 20 to 249 employees in the in such a way as to encourage safety in approaches that maximize net benefits previous year, and are in certain the workplace without discouraging the (including potential economic, designated industries, to electronically reporting of injuries and illnesses. environmental, public health and safety submit the required information from The specific rules and details of effects, distributive impacts, and the OSHA annual summary form (Form implementation of any given incentive equity). Executive Order 13563 300A) to OSHA or OSHA’s designee, on program must be considered to emphasizes the importance of an annual basis. determine whether it could give rise to quantifying both costs and benefits, Third, OSHA will require all a violation of paragraph (b)(1)(iv) of the reducing costs, harmonizing rules, and employers who receive notification from final rule. It is a violation of paragraph promoting flexibility. OSHA to electronically submit the (b)(1)(iv) for an employer to take adverse In the proposal, OSHA estimated that requested information from their injury action against an employee for reporting this rule would have economic costs of and illness records to OSHA or OSHA’s a work-related injury or illness, whether $11.9 million per year, including $10.7 designee. Any such notification will be or not such adverse action was part of million per year to the private sector, subject to the approval process an incentive program. Therefore, it is a with costs of $183 per year for affected established by the Paperwork Reduction violation for an employer to use an establishments with 250 or more Act. incentive program to take adverse employees and $9 per year for affected Fourth, OSHA will require employers action, including denying a benefit, establishments with 20 or more to inform employees of their right to because an employee reports a work- employees in designated industries. The report injuries and illness and prohibit related injury or illness, such as Agency believed that the annual discrimination against employees who disqualifying the employee for a benefits, while unquantified, report injuries and illnesses. monetary bonus or any other action that significantly exceed the annual costs. The final rule does not add to or would discourage or deter a reasonable In this final rule, OSHA estimates that change any employer’s obligation to employee from reporting the work- the rule will have economic costs of complete, retain, and certify injury and related injury or illness. In contrast, if $15.0 million per year, including $14 illness records. The final rule also does an incentive program makes a reward million per year to the private sector not add to or change the recording contingent upon, for example, whether with costs of $214 per year to affected criteria or definitions for these records. employees correctly follow legitimate establishments with 250 or more The only changes are that, under certain safety rules rather than whether they employees and $11.13 per year for circumstances, employers will be reported any injuries or illnesses, the affected establishments with 20 to 249 obligated to submit information from program would not violate this employees in designated industries. The these records to OSHA in an electronic provision. OSHA encourages incentive Agency continues to believe that the format and to assure that employees programs that promote worker annual benefits, while unquantified, have, and understand they have, a right participation in safety-related activities, significantly exceed the annual costs. to report injuries and illnesses without such as identifying hazards or The final rule is not an ‘‘economically fear of discrimination. OSHA requested participating in investigations of significant regulatory action’’ under comments and received many helpful injuries, incidents, or ‘‘near misses.’’ Executive Order 12866 or the Unfunded comments throughout this process. For OSHA’s Voluntary Protection Program Mandates Reform Act (UMRA) (2 U.S.C. example, one commenter suggested that (VPP) guidance materials refer to a 1532(a)), and it is not a ‘‘major rule’’ OSHA should run a pilot program of number of positive incentives, including under the Congressional Review Act (5 electronic reporting (Ex. 1109). In many

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ways, OSHA’s previous collection of To estimate the compensation of the training is not required before handling these data through the OSHA Data person expected to perform the task of PII. For example, many restaurants do Initiative (the ODI) was a lengthy pilot electronic data submission in the PEA, not train wait staff specifically in the program, and a successful one which OSHA suggested that recordkeeping handling of credit card information. tasks are most commonly performed by lasted for almost 20 years. This final OSHA does agree with commenters rule is an extension of that effort, by a Human Resource, Training, and Labor who argued that the average expanding the collection to involve Relations Specialist, Not Elsewhere compensation for recordkeepers might more establishments and to collect a Classified (Human Resources larger set of injury and illness data. For Specialist). In the PEA, OSHA estimated be greater than for a human resources many of the establishments affected by compensation using May 2008 data from specialist. For this Final Economic this final rule, the data submitted will the BLS Occupational Employment Analysis (FEA), OSHA updated those be identical to the data that was Survey (OES), reporting a mean hourly compensation numbers using the same collected by the ODI. wage of $28 for Human Resources sources, but a different occupational As OSHA explained in the preamble Specialists, and June 2009 data from the classification. This change was made so to the proposed rule, the electronic BLS National Compensation Survey, that this regulation will be consistent submission of information to OSHA reporting a mean fringe benefit factor of with OSHA’s 2014 recordkeeping would be a relatively simple and quick 1.43 for civilian workers in general. paperwork package and OSHA’s matter. In most cases, submitting OSHA multiplied the mean hourly wage September 2014 recordkeeping information to OSHA would require ($28) by the mean fringe benefit factor regulation. For the FEA, OSHA several basic steps: (1) Logging on to (1.43) to obtain an estimated total estimated compensation using May OSHA’s web-based submission system; compensation (wages and benefits) for 2014 data from the BLS Occupational (2) entering basic establishment Human Resources Specialists of $40.04 Employment Survey (OES), reporting a × information into the system (the first per hour ([$28 per hour] 1.43). mean hourly wage of $33.88 for OSHA requested comments as to time only); (3) copying the required Industrial Health and Safety Specialists, whether the Human Resources injury and illness information from the and December 2014 data from the BLS Specialist was a reasonable wage rate, establishment’s records into the National Compensation Survey, and received only a few comments (Exs. electronic submission forms; and (4) reporting a mean fringe benefit factor of hitting a button to submit the 0211, 1110, 0194, 1198). Many comments on the subject of occupation 1.44 for civilian workers in general. information to OSHA. In many cases, OSHA multiplied the mean hourly wage especially for large establishments, performing the collection and submission stated that the use of a ($33.88) by the mean fringe benefit OSHA data are already kept factor (1.44) to obtain an estimated total electronically, so step 3 would be less Human Resource Specialists was not compensation (wages and benefits) for time-intensive relative to cases in which reflective of their experience. For Industrial Health and Safety Specialists records are kept on paper. The example, the Food Market Institute of $48.78 per hour ([$33.88 per hour] × submission system, as anticipated, (FMI) commented, ‘‘For instance, while 1.44). This represents an increase in the would also save an establishment’s OSHA asserts the new responsibilities information from one submission to the will be shouldered by human resources wage rate of 22 percent over the wage next, so step 2 might be eliminated for personnel, it is far more likely that each used in the PEA. most establishments after the first establishment’s safety professionals will OSHA recognizes that not all firms submission. be burdened with the task.’’ (Ex. 1198) assign the responsibility for Many commenters questioned One comment from the American recordkeeping to an Industrial Health whether the process would be this Subcontractors Association stated, and Safety Specialist. For example, a ‘‘Instead, among small and mid-sized simple. OSHA will first examine the smaller firm may use a bookkeeper or a ASA member firms, tasks like these are costs of the activities outlined above, plant manager, while a larger firm may and then address a wide variety of performed by high level management personnel. In larger construction firms, use a higher level specialist. However, comments on other costs in addition to OSHA believes that the calculated cost those for the activities outlined above. such tasks are likely to be performed by safety and health professionals’’ (Ex. of $48.78 per hour is a reasonable B. Costs 1322). Other commenters suggested that estimate of the hourly compensation of a typical recordkeeper. In the case of a 1. § 1904.41(a)(1)—Annual Electronic a more senior person would be needed to go over the data. Aimee Brooks of very small firm, this wage rate may Submission of Part 1904 Records by exceed the owner or proprietor’s wage. Establishments With 250 or More Western Agricultural Processors Association (WAPA) stated, ‘‘It is highly BLS data from the Quarterly Census of Employees likely that upper level management Employment and Wages (2014) show In the Preliminary Economic Analysis would be inputting this information, as that the average weekly wage for a (PEA), OSHA obtained the estimated giving this information sensitive task to worker in a firm with 20 to 49 cost of electronic data submission per office staff at the workplace would be a employees is $848 per week, while the establishment by multiplying the liability to the business. If such average wage for a worker in a firm with compensation per hour (in dollars) of responsibility is given to office staff, it 1,000 or more employees is $1,699 per the person expected to perform the task would need to be accompanied with week—nearly twice as high as the of electronic submission by the time training regarding protecting sensitive smaller firm. required for the electronic data information and privacy’’ (Ex. 1273). submission. OSHA then multiplied this OSHA believes that throughout the For time required for the data cost per establishment by the estimated economy, relatively low-wage submission in the PEA, OSHA used the number of establishments that would be employees handle sensitive information, estimated unit time requirements required to submit data, to obtain the including PII such as employee Social reported by BLS in their paperwork total estimated costs of this part of the Security numbers, payroll information, burden analysis for the Survey of proposed rule. This methodology was and customers’ credit card information. Occupational Injuries and Illnesses retained in the FEA. OSHA further believes that specialized (SOII) (OMB Control Number 1220–

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0045, expires October 31, 2013).1 BLS be submitted. Such differences are industries covered by this section. The estimated 10 minutes per recordable trivial, with the possible exception of CBP data also indicated that these large injury/illness case for electronic the individual injury/illness entries on establishments employed 35.8 percent submission of the information on Form Form 300. In the FEA, OSHA has added of all employees in the covered 301 (Injury and Illness Incident Report) two minutes per injury or illness listed industries. In the FEA, using newer CBP and Form 300 (Log of Work-Related on the OSHA 300 Log to account for this data, OSHA finds that there are 33,674 Injuries and Illnesses). BLS also difference. Along with the 10 minutes establishments with 250 or more estimated 10 minutes per establishment, per 300A Summary, OSHA is estimating employees, a decrease of 11 percent. total, for electronic submission of the more time than the BLS paperwork For the PEA, the BLS data showed a information on Form 300A (Summary of burden. For example, in the simplest total of 2,486,500 injuries and illnesses Work-Related Injuries and Illnesses). case, OSHA estimates that an that occurred in the covered industries. For the FEA, OSHA used, where establishment with more than 250 For the FEA, more recent BLS data were appropriate, the values reported in the employees and a single injury will take aggregated, and a total of 1,992,458 latest BLS SOII paperwork package (on average) 10 minutes to electronically injuries and illnesses were found in the (OMB Control Number 1220–0045, submit the OSHA Summary (Form covered industries. expires September 30, 2016). 300A), 10 minutes to submit the single In both the PEA and the FEA, to Many of the comments on the 10 injury report (Form 301) and 2 minutes calculate the number of injuries and minutes originally estimated by OSHA to submit the one line that would be on illnesses that will be reported by for submitting the requested data were the 300 Log for each recorded injury, for covered establishments with 250 or general in nature and often conflated the a total of 22 minutes. BLS estimates 20 more employees, OSHA assumed that time to submit the data with the time to minutes as the average time across all total recordable cases in establishments audit the data (Exs. 1113, 1092, 1192, employers for any number of injuries. with 250 or more employees would be 1421, 1366). A typical statement was, In the PEA, using the information on proportional to their share of ‘‘OSHA estimates the electronic estimated hourly compensation of employment within the industry. Thus submission process would take each recordkeepers and estimated time in the PEA, OSHA estimated that establishment only 10 minutes for each required for data submission, OSHA 890,288 injury and illness cases would OSHA 301 submission and 10 minutes calculated that the estimated cost per be reported per year by establishments for the submission of both the OSHA establishment with 250 or more workers with 250 or more employees that were 300 and 300A. This fails to accurately for quarterly data submission of the covered by this section. In the FEA, account for the time it would take information on Forms 300 and 300A using the same methodology and more employees to familiarize themselves would be $26.69 per year ([10 minutes recent data, OSHA estimates that with the process and review reports to per data submission] × [1 hour per 60 713,397 injury and illness cases will be ensure compliance with all regulations’’ minutes] × [$40.04 per hour] × [4 data reported per year by establishments (Ex. 1421). submissions per year]). Because the with 250 or more employees covered by Some comments directly addressed final rule now requires data to be this section. In the PEA, OSHA calculated an the issue of the relevance of the BLS submitted once a year, rather than four estimated total cost of quarterly data estimates to OSHA’s requirements (Exs. times a year, the equation in the FEA for submission of non-case information of 1328, 1411). Eric Conn, representing the submitting the Form 300A data is: $8.13 $1,016,729 ([38,094 establishments National Retail Federation (NRF), per year ([10 minutes per data required to submit data quarterly] × commented on the use of BLS’s time submission] × [1 hour per 60 minutes] [$26.69 for electronic data submission estimate for submitting data, stating, × [$48.78 per hour] × [1 data submission per year]). In addition, OSHA calculated ‘‘The data submitted for the BLS survey, per year]). Note that $8.13 per year is an estimated total cost of quarterly data however, is more limited in terms of nearly 75 percent less than the annual information requested. BLS requests submission of case information of cost in the PEA because OSHA will not $5,938,221 ([890,288 injury/illness cases only certain data for up to 15 cases, but require quarterly submission. In the Proposed Regulation would require per year at affected establishments] × addition, the estimated cost per [$6.67 per injury/illness case]). all relevant Form 300 and/or 300A recordable injury/illness case in the information from the entire injury and Summing these two costs yielded a total final rule is $9.74 ([10 minutes per case cost of $6,954,950 per year for the illness record. Thus the time burden for form 301 entries plus 2 minutes per would actually be much greater than × proposed rule ($1,016,729 + case for entry of form 300 log entries] $5,938,221), for an average cost per OSHA predicts’’ (Ex. 1328). [1 hour per 60 minutes] × [$48.78 per OSHA agrees that the final rule affected establishment of $183 per year. hour]). requires information on all individual In the FEA, OSHA used the same To calculate the total estimated costs equations above, using newer data plus cases and not just on 15 or fewer lost of this part of the rule in the PEA, workday injuries and illnesses, as an additional two minutes per injury OSHA used establishment and and illness case to enter Form 300 data, required by BLS. The requirement for employment counts from the U.S. information on all cases from Form 301 to estimate the total cost of annual data Census County Business Patterns (CBP), submission under this section of the was addressed in the PEA by estimating data from the U.S. Census Enterprise ten minutes per form entered and final rule. OSHA estimates a total cost Statistics (ES), and injury and illness of annual data submission of non-case multiplying this by the number of forms counts from the BLS Survey of OSHA would require to be submitted, information of $273,770 ([33,674 Occupational Injuries and Illnesses establishments required to submit data rather than the number BLS requires to 2 (SOII). In the PEA, CBP data showed annually] × [$8.13 for electronic data that there were 38,094 establishments 1 The ODI paperwork analysis (1218–0209) submission per year]). In addition, estimates an average time of 10 minutes per with 250 or more employees in the OSHA calculates an estimated total cost response for submitting Form 300A data. The ODI of annual data submission of case does not require submission of Form 301 data. The 2 For the CBP see: http://www.census.gov/econ/ 10 minute estimate form the ODI is equal to the 10 cbp/. For the ES see: http://www.census.gov/econ/ information of $6,948,487 ([713,397 minute estimate from the BLS SOII for submission esp/. For the SOII see: http://www.bls.gov/iif/ injury/illness cases per year at affected of the same data. oshsum.htm. establishments] × [$9.74 per injury/

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illness case]). Summing these two costs multiplied this cost by the estimated businesses without access to a computer yields a total cost of $7,222,257 per year number of establishments that would be and the Internet. However, OSHA did for the final rule ($273,770 + required to submit data, to obtain the find a survey, conducted by a contractor $6,948,487), for an average cost per total estimated costs of this part of the for the Office of Advocacy of the Small affected establishment of $214 per year. proposed rule. Business Administration (SBA) in the OSHA requested comments on all In the PEA, for compensation per spring of 2010, on the use of Internet aspects of the PEA, including examples hour, OSHA used the calculated cost of connectivity by small businesses, called of establishments with 250 or more $40.04 per hour as a reasonable estimate ‘‘The Impact of Broadband Speed and employees that cannot report of the hourly compensation of a Price on Small Business’’ (http:// electronically with existing facilities representative recordkeeper. In the FEA, www.sba.gov/sites/default/files/ and equipment or data sources showing as discussed above, OSHA has increased rs373tot_0.pdf). This survey suggests that such establishments exist. Aimee this per-hour wage to $48.78. that at least 90 percent of small Brooks commented on behalf of Western In the PEA, OSHA used the BLS businesses surveyed use the Internet at Agricultural Processors Association estimate of 10 minutes per their business. Further, the survey noted (WAPA): ‘‘. . . in some areas of establishment for electronic submission that 75 percent of all small businesses California, tree nut hullers and of the information on Forms 300 and not using the Internet were small processors do not have a computer or 300A (Summary of Work-Related businesses with five or fewer internet access’’ (Ex. 1273). Aimee Injuries and Illnesses) to estimate the employees. Given the survey’s estimates Brooks also stated on behalf of time required for this submission. The that 50 percent of small businesses have California Cotton Ginners and Growers estimated cost per establishment for fewer than 5 employees, this means that Association (CCGGA): ‘‘Cotton growers electronic submittal under this part of 95 percent of all small businesses with and ginners are usually remotely located the proposed rule was $6.67 per year five or more employees have Internet and access to internet or a computer is ([$40.04 per hour] × [10 minutes per connections. OSHA believes that even not only limited, but both hardware and data submission] × [1 hour per 60 this 95 percent is an underestimate for software are generally out of date, minutes] × [one data submission per two reasons. First, the survey is five unreliable, and slow, meaning the year]). years old, and during the past seven online reporting process will take much For the FEA, the estimated cost per years the cost of both computer longer than the OSHA estimate of 10 establishment for electronic submittal equipment and Internet access has minutes per establishment’’ (Ex.1274). under this part of the proposed rule is fallen (for example, since May 2008 the As will be discussed below, many $8.13 per year ([$48.78 per hour] × [10 BLS Personal Computer Index has fallen commenters were concerned that minutes per data submission] × [1 hour by nearly 20 percent; http:// requiring electronic submission might per 60 minutes] × [one data submission data.bls.gov/timeseries/ be a problem for some small firms; per year]). CUSR0000SEEE01?output_view=pct_ however, no clear examples were In the PEA, OSHA estimated that the 3mths). Second, the survey is of small provided of an establishment with over number of establishments subject to this entities, not establishments. OSHA can 250 employees that did not have part of the proposed rule would be show that a significant proportion of computers and Internet access. Based on 440,863. OSHA noted in the PEA that small establishments are a part of non- the comments to the proposed rule, and many of these establishments were small entities, and those larger entities OSHA’s own experience, the Agency already submitting these data to OSHA are even more likely to have computers continues to believe that large through the ODI. 47,700 establishments and Internet connections. establishments with 250 or more of the 68,600 establishments in the 2010 It also needs to be noted that the employees have access to computers ODI (70 percent) submitted their data minimum establishment size affected by and the Internet.3 electronically. this proposed rule is 20 employees. It is As a result, OSHA estimated that the reasonable to assume that an even 2. § 1904.41(a)(2)—Annual Electronic direct labor cost of this part of the smaller percentage of firms with 20 or Submission of OSHA Annual Summary proposed rule would have been more employees lack a computer with Form (Form 300A) by Establishments $2,622,397 ([$6.67 per establishment per an Internet connection. With 20 or More Employees but Fewer year] × ([440,863 establishments affected OSHA was able to find only two Than 250 Employees in Designated under the proposed rule]¥[47,700 current Federal Government data Industries establishments already submitting collection programs that require data to OSHA’s methodology for estimating electronically to the ODI])). be submitted electronically. the costs of this section of the proposed This estimate is based on the • Effective January 1, 2010, the rule in the PEA was similar to the assumption that all of the affected Department of Labor’s Employee methodology for estimating the costs of establishments have on-site access to a Benefits Security Administration the previous section. OSHA first computer and an adequate Internet requires the electronic filing of all Form obtained the estimated cost of electronic connection. However, as noted above, 5500 Annual Returns/Reports of data submission per establishment by 30 percent of establishments in the 2010 Employee Benefit Plan and all Form multiplying the compensation per hour ODI did not submit data electronically. 5500–SF Short Form Annual Returns/ (in dollars) for the person expected to One possible reason for this choice is Reports of Small Employee Benefit Plan perform the task of electronic data that, for some of those establishments, it for 2009 and 2010 plan years, as well as submission by the time required for the was difficult to submit data any required schedules and electronic data submission. OSHA then electronically. Most agencies currently attachments, using EFAST2-approved allow non-electronic filing of third-party software or iFile. EFAST2 is 3 Note that the establishments subject to the information, and some businesses an all-electronic system designed by the requirements in this section of the final rule include continue to use this option, despite Department of Labor, Internal Revenue establishments that previously submitted data strong encouragement by agencies to file Service, and Pension Benefit Guaranty under the OSHA Data Initiative (ODI). However, OSHA has decided not to subtract the existing costs electronically. Corporation to simplify and expedite of submitting data for the ODI from the total costs OSHA searched for but was unable to the submission, receipt, and processing estimated for this section of the final rule. find information on the proportion of all of the Form 5500 and Form 5500–SF.

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These forms must be electronically filed It seems reasonable to assume that The American Forest and Paper each year by employee benefit plans to business owners, as a group, have Association (AFPA) commented, ‘‘Many satisfy annual reporting requirements higher incomes and labor force businesses, particularly small firms under the Employee Retirement Income participation rates than the U.S. located in rural areas, do not have ready Security Act (ERISA) and the Internal population as a whole. And data from access to the Internet or may find Revenue Code. Under EFAST2, filers the 2007 Survey on Small Business electronic reporting burdensome choose between using EFAST2- Owners, conducted by the U.S. Census because they currently have a paper- approved vendor software or a free Bureau, show that business owners have based record system and should not be limited-function web application (IFILE) higher levels of education; 74 percent of burdened with the cost of converting to to prepare and submit the Form 5500 or the business owners had at least some an electronic format’’ (Ex. 0179). Many Form 5500–SF. Completed forms are post-high school education and 45 commenters incorrectly asserted that submitted via the Internet to EFAST2 percent had at least a bachelor’s degree, OSHA had assumed everyone had a for processing. compared to 55 percent and 30 percent computer and kept records • Under the mandatory electronic among the general U.S. population aged electronically (Exs. 1092, 1123, 1190, filing provisions (11 CFR 104.18) of the 25 and older in 2010 (U.S. Census, 1199, 1200, 1343, 1359, 1370, 1410, Federal Election Commission (FEC), ‘‘Table 1. Educational Attainment of the 1421). As discussed above, this effective January 1, 2001, any political Population 18 Years and Over, by Age, assumption was inaccurate. Perhaps committee or other person that is Sex, Race, and Hispanic Origin: 2010’’, because of this inaccurate assumption, required to file reports with the FEC and http://www.census.gov/hhes/socdemo/ almost no commenters addressed that receives contributions or makes education/data/cps/2010/Table1-01.xls, OSHA’s estimate of the number of expenditures in excess of $50,000 in the accessed June 15, 2011). Further, a establishments without computer access current calendar year, or has reason to small-business owner without an office or OSHA’s estimates of the costs for expect to do so, must submit its reports or home computer may own a smart such establishments. electronically. phone, which could easily be used for However, one commenter, the American Farm Bureau Federation All other data collection programs transmitting the data for the 300A (AFBF), provided information on identified by OSHA provide a non- summary because it is a very simple computer use on farms: ‘‘. . . only 68 electronic option for data submission, form. In the PEA, to account for the lack of percent of farmers (both livestock/ including the OSHA Data Initiative direct data on computers and Internet poultry and crop producers) have a (ODI); various databases at the access among small businesses and the computer and only 67 percent have Environmental Protection Agency presumed increase in Internet usage internet access . . .’’ (Ex. 1113). Note (EPA), including the Toxics Release since the indirect data were obtained, that the figure of 67 percent of farms Inventory Program (TRI); and programs OSHA estimated that 95 percent of the with Internet access is only a bit below administered by the Internal Revenue 440,863 establishments subject to this the national average for households of Service (IRS), the Bureau of Labor part of the proposed rule (i.e., 418,820 74 percent with Internet access. OSHA Statistics (BLS), and the U.S. Census establishments) had access to a does not expect that many farms will be Bureau (including business data). computer with an Internet connection, subject to reporting under this final rule, As noted above, even a dated survey either at home or at work. OSHA because few farms have 20 or more from 2010 found that 95 percent of believed that the actual percentage of workers. Of the 2.2 million US farms, small businesses with 5 or more establishments with Internet access was only about 550,000 have any hired help employees had a computer with an larger than this estimated value. OSHA (about 25 percent). The 2012 Internet connection. The Department of welcomed comment on this issue. The Agricultural Census reports that there Commerce estimated in 2009 that 69 remaining 22,043 establishments would are just 40,661 farms with 10 or more percent and 64 percent of U.S. have to either buy additional equipment workers in the U.S. OSHA believes that households, respectively, had some and/or services or use off-site facilities, there are 20,623 farms with more than kind of Internet access and broad-band such as public libraries. OSHA 20 hired workers that would be subject Internet access specifically (National estimated in the PEA that finding and to this final rule. OSHA believes that Telecommunications and Information using such off-site facilities would add farms with many workers are extremely Administration, U.S. Department of an hour (including transportation and large operations, heavily capitalized, Commerce, ‘‘Table 2 Households using waiting time), on average, to the time and likely to have computers or the Internet in and outside the home, by required by the recordkeeper to submit smartphones and Internet access. selected characteristics: Total, Urban, the data electronically. For some In the PEA, OSHA estimated the total Rural, Principal City, 2009 (Numbers in establishments, they might need to costs of this part of the proposed rule as Thousands)’’, http://www.ntia.doc.gov/ travel next door to find a computer or the direct labor cost of electronic legacy/data/CPS2009_Tables.html). By Internet access, while others might need submittal ($2,622,397) for the 393,163 2013, high-speed broadband and to drive for an hour or more. In the establishments subject to the rule and Internet use had risen to 73 and 74 proposal this led to additional costs of not already electronically submitting the percent, respectively (Source: http:// $882,607 per year ([440,863 data to OSHA through the ODI, plus the www.census.gov/content/dam/Census/ establishments] × [5% of these additional cost for 5 percent of the library/publications/2014/acs/acs- establishments] × [1 hour for finding affected 440,863 establishments of going 28.pdf). In addition, households with and using off-site facilities] × [$40.04 off-site to submit the data electronically higher incomes and levels of education per hour]). ($882,607). A last cost of $189,935 in were more likely to have Internet access OSHA requested comments on all the PEA, for those establishments that at home, and home Internet access aspects of this preliminary estimate and do not currently certify their records, is among employed householders was 78 received many comments. Some discussed below. Thus, the total cost of percent, compared to 65 percent among commenters requested that OSHA still the proposed rule was $3,695,939 per unemployed householders and 52 provide a paper reporting option (Exs. year, or an approximate estimated percent among householders not in the 0179, 0211, 0253, 0255, 1092, 1112, average of $9.40 per affected labor force. 1123, 1190, 1192, 1199, 1205, 1322). establishment ([$3,695,939 per year]/

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([440,863 establishments affected under a certifying official. This wage reflected percent of that total (20,623 farms) as the proposed rule] ¥ [47,700 the hourly wage plus benefits of an the best estimate of the number of farms establishments already submitting Industrial Production Manager (OES 11– with 20 or more employees. This is still electronically to the ODI])). 3051), the same occupation used for possibly an over-estimate of the number In the FEA, the estimate of affected certification of records in other OSHA of farms with 20 or more employees, establishments is smaller: 410,673 recordkeeping regulations. OSHA because the inverse relationship affected establishments versus 440,863 invited comments on whether 1.6 between the number of farms and the affected establishments with 20 or more percent is the actual certification non- number of farm employees rises employees in the PEA, or 6.8 percent compliance rate for firms subject to part geometrically. Other information, for less. Note that, since the ODI was not in 1904, and on whether the adjusted wage example farm revenue data, also help to effect in 2015, OSHA will not take an of $65.79 was, on average, the correct show that there are very few farms with offset for establishments submitting data wage rate for individuals certifying revenues high enough to support 20 for the ODI. annual recordkeeping logs. OSHA did employees. The total costs of this part of the final not receive any comments disputing Following the methodology used rule are the direct labor cost of these figures. As a result, OSHA has elsewhere in the FEA, those 20,623 electronic submittal ($3,338,771) for the retained the estimate of 1.6 percent of farms will on average take 10 minutes 410,673 non-farm establishments establishments not certifying their to submit their summary electronically subject to the rule, plus the additional annual records. to OSHA. OSHA has made two cost for 5 percent of the affected 410,673 In the FEA, OSHA updated the wage adjustments to this methodology for establishments of going off-site to rate of the certifying official, using 2014 farms. First, OSHA estimates that five submit the data electronically data. Thus the wage rate for the percent of farms subject to this section ($1,001,631). A last cost of $231,192, for certifying official, based on the wage of of the final rule (1,031 farms) will not those establishments that do not an Industrial Production Manager (OES have access to a computer, a smart currently certify their records, is 11–3051), is $70.37, based on a mean phone, or the Internet. Second, OSHA discussed below. Thus, the total cost is hourly wage of $48.87 and a fringe estimates a travel time of one hour for $4,571,594 per year, or an approximate benefit factor of 1.44 ($48.87 × 1.44 = data submitters at these establishments estimated average of $11.13 per affected $70.37). The estimated number of non- to travel off-site to an Internet establishment ([$4,571,594 per year]/ compliant establishments is 6,571 (1.6 connection. ([410,673 establishments affected under percent of 410,673 non-farm OSHA estimates that 330 farms (1.6% the proposed rule]). establishments). The cost of certification × 20,623 farms) do not currently certify In the PEA, OSHA recognized that a for non-certifying establishments is their injury/illness records, leading to small percentage of establishments $231,200 [(30 minutes) × (6,571 an additional cost of $11,611 [(30 currently subject to part 1904 do not establishments) × ($70.37 per hour) × (1 minutes) × (330 establishments) × fully comply with the requirement in hour per 60 minutes)]. ($70.37 per hour) × (1 hour per 60 § 1904.32(a)(3) to certify the accuracy of OSHA believes, and current ICRs minutes)]. The total cost for farms each year’s records. OSHA inspection support, that 30 minutes is the included in electronic reporting is data showed that in 2010, about 1.6 appropriate amount of time required, on $229,568, which is derived by percent of establishments undergoing an average, for certification. However, a multiplying [(20,623 farms) × ($48.78 inspection had a violation of the range of time requirements is possible. per hour) × (10 minutes) × (1 hour per recordkeeping certification requirement. For example, if the certifying officials 60 minutes)] and adding [(1,031 farms OSHA had previously estimated costs are especially productive at without Internet) × ($48.78 per hour) × and a paperwork burden for the time certification, perhaps because the injury (1 hour)] and then adding [(330 farms these employers would spend reviewing and illness records are well-maintained that do not currently certify) × ($70.37 their data for certification purposes (see, or because the officials are able to work per hour) × (30 minutes) × (1 hour per for example, OSHA’s September 2014 off existing finalized summary reports 60 minutes)]. recordkeeping paperwork package). sent to Workers’ Compensation OSHA believes that the same Because the data collection under this insurance agencies, then it may only computer ownership factor used in the section of the proposed rule would have take 15 minutes, on average, to complete PEA and FEA for general establishments made it obvious to these employers that the certification. In that case, the total also applies to farms. While there were the records had not been certified, cost would be just $115,596. On the comments, based on a USDA survey, OSHA included the full costs of other hand, perhaps the certifying that farms did not have as many certification for those not in compliance officials have become less productive computers or as much Internet access as with § 1904.32(a)(3) as a cost of this since the previous ICRs. If it now takes the rest of the private sector, that survey rule. In the PEA, the number of not-in- a certifying official one hour instead of was heavily weighted toward typical compliance establishments was 30 minutes to certify, then the total cost American farms, i.e., farms operated by estimated by multiplying 1.6 percent for non-complying establishments a single farmer or farm family, and times 360,863 establishments subject to would be $462,384. many times smaller than an operation the rule but not currently in the ODI OSHA also notes that in the PEA, with 20 or more employees. OSHA (440,863 total establishments minus farms with 20 or more employees were again emphasizes that a smart phone 80,000 in ODI). The resulting figure was not counted for cost purposes, though with data access will be sufficient to only 5,774 establishments not in they were included in the scope of the submit summary data from the Form compliance with § 1904.32(a)(3). The regulation. A separate analysis follows 300A to the OSHA Web site. cost for these non-compliers to comply for the FEA. Several commenters expressed with § 1904.32(a)(3) by completing OSHA was not able to obtain a count concern that OSHA was not allowing certification was $189,935. This was of farms (crop and animal) with 20 or enough time for initial startup or calculated by multiplying [(30 minutes) more employees. OSHA took the familiarization for establishments that × (5,774 establishments) × ($65.79 per estimate of farms with 10 or more will be newly required to report their hour) × (1 hour per 60 minutes)], where employees (41,246 farms), provided by data electronically (Exs.1338, 1276, $65.79 was the adjusted hourly wage for the Census of Agriculture, and took 50 1351, 0160, 1112, 1205, 1394, 1190,

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1342, 1281, 1397, 1343, 1402, 1199, illness. Posting this new poster will workers of their right to not be 1113, 1092, 1192, 1421, 1372, 1401, allow employers to meet this discriminated against for reporting (Exs. 1356, 1332, 1198, 1279, 1366). In requirement, because it informs workers 1547, 1600, 1603). For example, the response to these comments, OSHA has that they have the right to report injuries Association Connecting Electronics added ten minutes to the time estimate, or illness, without being retaliated Industries commented, ‘‘Employees in the first year the regulation is in against, and informs employers that it is must already be made aware that they effect, to account for the time illegal to retaliate against an employee are protected under the Act ’against establishments take to create their login for reporting an injury or illness. (Note discharge or discrimination for the accounts with OSHA and enter their that the old poster mentioned that exercise of their rights under Federal basic information from the OSHA 300A employees had the right to make safety/ and State law.’ Specifically, OSHA form, such as establishment name and health complaints without retaliation in requires that employers post OSHA address. These ten minutes are not general, but made no specific reference 3165, Job Safety and Health—It’s the included in current paperwork to the reporting of injuries and law! This posting clearly states that packages, so the costs will apply to illnesses.) Note also that this is not the employees can file a complaint with every establishment subject to reporting only way an employer can meet this OSHA within 30 days of retaliation or electronically to OSHA—a total of requirement; an employer may inform discrimination by an employer for 431,296 establishments (including the the employees in any way that the making a safety or health complaint and 20,623 farms). Note that number of employer sees fit. However, OSHA employers must comply with the establishments includes both believes that the use of a professionally- occupational safety and health establishments with 20 to 249 designed poster that is easily standards under the OSH Act’’ (Ex. employees, subject to the requirements downloadable from many Web sites, 1668). OSHA agrees that workplaces in this section of the final rule, as well including OSHA’s, is the most must post an OSHA poster, but there is as establishments with 250 or more inexpensive way for most employers to no requirement that establishments employees, subject to the requirements meet this requirement. download the latest OSHA poster, in the previous section of the final rule. This section of the FEA accounts for which is the one that contains the The total first-year cost for the costs, discusses the benefits, and in specific information on the right to familiarization is $3,506,436 [(431,296 addition addresses comments provided report injuries and illnesses, as required × × establishments) ($48.78 per hour) by the public on the subject of this part by the final rule. × (10 minutes) (1 hour per 60 minutes). of the final rule. OSHA did not quantify the benefits of For the costs—although employers are This one-time, first year cost can be the non-discrimination requirement in required to post the OSHA poster, amortized over 10 years at a 7 percent the supplemental notice to the proposed interest rate to yield $499,237 per year. OSHA is not requiring employers to replace the existing poster with the new rule, because OSHA believed that since At a 3 percent interest rate, it would there would be no additional costs, yield $411,061 per year. poster. Putting up the OSHA poster is therefore a new cost for this final rule. there would be no additional benefits. 3. §§ 1904.35 and 1904.36 To calculate the cost of posting the new In the supplemental notice to the The last cost element is from the non- OSHA poster, OSHA used the following proposed rule, OSHA stated, ‘‘OSHA discrimination provisions of this final judgments. First, it will take an also expects that, because these three rule. In the economic analysis for the employer five minutes to obtain and potential provisions will only clarify supplemental notice to the proposed post the poster. Second, this task will be existing requirements, there are also no rule, OSHA stated that ‘‘these undertaken by an industrial manager new economic benefits. The provisions provisions do not require employers to with an hourly wage of $70.37, as above. will at most serve to counter the provide any new or additional records Third, there are 1,364,503 additional motivations for employers to not already required in existing establishments subject to this discriminate against employees standards. (When the existing standards requirement in the final rule (including attempting to report injuries and were promulgated, OSHA estimated the farms with 10 or more employees). The illnesses.’’ [79 FR 47605–47610] costs to employers of the records that estimated one-time cost for posting the However, OSHA believes that posting would be required.) These provisions new OSHA poster is thus $8,001,673 the newest OSHA poster will encourage add no new rights to employees, but are [(1,364,503 establishments) × $70.37 per both employees and employers to instead designed to assure that hour) × (5 minutes) × (1 hour per 60 accurately report and record workplace employers recognize the existing right of minutes)]. Annualized over 10 years at injuries and illnesses. Many employees to report work-related 3 percent interest, this is a total cost of commenters commented that informing injuries and illnesses.’’ $938,040 per year. OSHA believes this workers of their right to report injuries After examining the rulemaking cost estimate is a significant over- and illnesses without fear of record and adjusting the final regulatory estimate because many establishments discrimination was beneficial (Exs. text, OSHA now anticipates that the routinely download and post newer 1489, 1529, 1603, 1640, 1647, 1679, implementation of the non- versions of OSHA’s poster even without 1682, 1688, 1695, 1696). The discrimination provisions will have one regulatory guidance. In addition, Communications Workers of America cost component, namely an although OSHA is using an estimate of (CWA) stated, ‘‘Employer notification to informational component that five minutes in the FEA, OSHA wrote in employees of their right to report employers can meet by posting the new the supplemental notice to the proposed occupational injuries and illnesses OSHA poster (https://www.osha.gov/ rule that posting the sign could take as without fear of employer retaliation, Publications/osha3165-8514.pdf). The few as three minutes. employer development and final rule requires employers to OSHA received a few comments implementation of reasonable injury specifically inform employees that they relating to the costs of the non- and illness requirements, and the have the right to report injuries and discrimination provisions of the prohibition of employer’s adverse action illness, and that employers are not to proposed rule. Some commenters noted against the workers who report injuries discourage or retaliate against an that OSHA already requires employers and illnesses is extremely important employee who reports an injury or to post an OSHA sign that informs towards improving and maintaining safe

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and healthful working conditions and $450,000 per year. Added to the BLS ODI program. Based on examples of worker well-being’’ (Ex. 1489). cost of $572,000 and the annualized Web sites submitted by OSHA’s start-up cost of $220,000, this would contractor, OSHA believes that the data 4. § 1904.41(a)(3)—Electronic have amounted to $1,242,000, or just collection Web site will be a turn-key Submission of Part 1904 Records Upon over $1.2 million. Adding the FTE costs operation that will not require much Notification to the contractor and OSHA Office of human monitoring, just like the ODI This part of the final rule has no Web Services estimates, along with the data collection Web site. Further, OSHA immediate costs or economic impacts. annualized start-up cost, would have believes that this data collection, even if Under this part of the rule, an yielded a range of between $1.2 million it requires additional resources, will establishment will be required to submit and $1.6 million per year. For its best result in saving of other resources data electronically if OSHA notifies the estimate in the PEA, OSHA used the through better targeting of resources and establishment to do so as part of a BLS estimated costs per transaction, better understanding of safety and specified data collection. Each specified because this estimate is based on actual health. data collection would be associated experience with implementing a similar 6. Discussion of Other Potential Costs of with its own particular costs, benefits, program. and economic impacts, which OSHA For the FEA, OSHA used the estimate the Rule would estimate as part of obtaining for costs to the government as published Some commenters suggested that OMB approval for the specified data in the PEA and then adjusted the there were other possible costs collection under the Paperwork estimate by using the rate of inflation associated with the rule, including costs Reduction Act of 1995. determined by the GDP deflator (source: for computers and computer systems, St. Louis Federal Reserve Bank GDP for training, and for review of 5. Budget Costs to the Government for deflator time series from January 2012 to submissions. Others commented that the Creation of the Reporting System, January 2015: 3.0 percent) to adjust the there might be indirect costs, for Helpdesk Assistance, and estimated cost to the government. Thus example through loss of reputation to a Administration of the Electronic the cost to the government for this final firm (or, presumably, an establishment), Submission Program rule is $1,279,260. loss of confidential business data, While OSHA has not typically Several commenters commented on higher OSHA fines, additional union included the cost of administering a the cost to the government. Several organizing, additional training, and new regulation in the preliminary commenters expressed concerns that opportunity costs, as well as perhaps economic analysis, the Agency did this data collection effort would strain higher labor costs as the labor supply include such costs in the PEA, because the resources of OSHA by costing too gets better information on the safety and they represented a significant fraction of much or requiring too many Federal health of a workplace. Commenters also the total costs of the regulation. The employees to work on this project (Exs. suggested that liability costs might rise, program lifecycle costs can be 1187, 1193, 1199, 1204, 1219, 1336, or that the security of dangerous categorized into IT hardware and 1339, 1382, 1389, 1399, 1430, 1461). A materials or processes might be software costs, helpdesk costs, and typical comment highlighting the compromised. Finally, commenters OSHA program management personnel possible additional costs to the suggested that an untrained public costs. OSHA received estimates for the government was submitted by the MYR might naively misinterpret the data. lifecycle costs from three sources: an Group: ‘‘Although not technically Each of these groups of comments will OSHA contractor, the BLS, and the required for notice and comment be addressed briefly in this section. rulemaking under the OSH Act, MYR OSHA web-services office. a. Computers and Computer Systems According to OSHA’s Office of Web Group believes that OSHA should Services, the creation of the reporting evaluate the cost of its own resources Some commenters argued that OSHA system hardware and software which would be required to be was requiring the use of computerized infrastructure would have had an initial dedicated to this rule instead of other record keeping. Troy Miller, a private cost of $1,545,162. Annualized over 10 compliance assistance or enforcement citizen, commented, ‘‘The literature years at 3 percent interest, this is activities. OSHA would have to included with the proposed rule $181,140 per year. establish and continuously maintain a suggests that OSHA assumes a majority BLS provided a unit cost estimate of special government Web site for these of employers already keep their injury 28 cents per transaction. This would data collections. This involves not only and illness records electronically, so have amounted to $372,000 per year for hardware and software expenses, but submission to OSHA should be doable about 1.3 million transactions. Adding also ongoing salaries. To utilize the data without much extra time or expense’’ annual help desk costs of $200,000 for injury and illness prevention, or for (Ex. 0160). A related set of comments would have made the total $572,000. enforcement, OSHA would have to suggested that many establishments or The contractor and OSHA’s Office of establish positions for analysis to review firms would need to buy new computer Web Services provided higher budget and interpret the data. MYR Group systems (Exs. 0035, 1205, 1225, 0179, estimates. The contractor suggested that believes that shifting resources from 0210, 1092, 1123, 1189, 1190, 1192, annual costs could have been as high as prevention activities to data 1199, 1275, 1281, 1092, 1113, 1279). $953,000, while the OSHA Office of management would be detrimental to OSHA notes that nothing in this final Web Services suggested a cost of making the workplaces safer and rule, or in the existing part 1904 $626,000 per year. certainly not worth the minor potential regulation, requires employers to create Under the proposed rule, OSHA for an incremental benefit in the or maintain records electronically. would have also continued to require collection of statistically insignificant Anyone who prefers to keep paper three full-time-equivalent workers data’’ (Ex. 1399). records for whatever reason may (FTEs) to administer the new electronic In response, OSHA believes that the continue to do so. Employers who keep recordkeeping system. OSHA believed number of OSHA employees who will paper records will only have to enter the these FTEs would have cost the be assigned to collecting and analyzing information from their paper records government $150,000 each, including the improved data will be the same onto the forms on OSHA’s Web site. salary and benefits, for a total of number as those who worked on the OSHA estimates that this data entry will

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require 10 minutes per form and two members believe strongly that senior these records. There is no need for such minutes per line entry on Form 300. It management would seek to review and confidential business information in is possible that an employer who approve all submissions (not just the OSHA records, and confidential already keeps records electronically 300A reports); again this would involve business information should already be could take fewer than ten minutes per additional cost to comply’’ (Ex. 1110). excluded, as the records can be made form and two minutes per line entry on As discussed above, comments on this public at any time. Employers Form 300 by electronically transferring issue were often conflated with other concerned with the time required to the appropriate data to the OSHA Web issues, for example the confidentiality expunge personal information should site. of employees’ records. The Texas Cotton also consider that the information in Ginners’ Association (TCGA), represents question could already be made public b. Training very small establishments that ‘‘will and that recordkeeping should exclude Several commenters suggested that have up to 20 or 30 employees during as much personal information as they would face additional training peak periods’’ (Ex. 0211). The TCGA possible, consistent with the use of the costs to train employees who already suggested that, because of the possibility records. In addition, OSHA intends to administer or keep OSHA 300-series of revealing confidential employee exclude the names and other PII of forms to upload either summary or Log information, a manager might instead individuals from the records before data to the OSHA Web site (Exs. 0160, subject the data to further review and publishing the data. 0179, 0194, 0196, 0210, 0215, 1091, upload it themselves: ‘‘The concern of 1092, 1326, 1339, 1340, 1372, 1393, management will be that this type of d. Harm to Reputation 1394, 1396, 1401, 1408). A typical system will inherently set up situations Some commenters suggested that comment on training was submitted by where workers may feel their privacy is published injury and illness data will the Pacific Maritime Association (PMA), violated, and the worker is likely to tarnish the reputations of some which commented, ‘‘OSHA has failed to blame their employer when this occurs. establishments, or enterprises, or take into account the costs associated To minimize their liability, it is unlikely perhaps their entire industry. The with having to train employees to record that a company will simply hand all the Pacific Maritime Association injuries in a manner suitable for forms to a clerk and tell them to key the commented, ‘‘. . . an employee who has publication . . .’’ (Ex. 1326). data into the public domain’’ (Ex. 0211). worked for one employer over a long OSHA continues to believe that In response, OSHA notes that OSHA’s period of time, and complains about a additional training should not be estimate of an hourly wage for the cumulative injury on his first day of necessary either to fill in a web form or recordkeeper submitting the data is work with a second employer will to transmit records from an existing based on the assumption of a safety and trigger an injury report that will be electronic system with which the health specialist familiar with the attributed to that second employer. employee is already familiar. This will establishment’s safety and health Publication of this report is obviously be no more difficult than filling in order records, and that this hourly wage may unfair and inaccurate. Further, owing to forms on private sites or other be larger than the hourly wage for contractual obligations and developing government forms online. It should be managers of small firms. Second, OSHA regional working rules, the standards noted that more than 70 percent of notes that a firm with 20–30 employees and conditions at different ports change respondents to the OSHA ODI and the is required to submit only the with a degree of frequency. Accordingly, BLS SOII collections choose to respond information from Form 300A (the without the proper context—something electronically. OSHA has already annual summary), which contains no that OSHA has not proposed to provide accounted for training for recordkeepers employee-specific information. as part of this database—it will be to understand the OSHA recordkeeping OSHA believes that existing impossible for the public to even system and for the costs of familiarizing regulations already provide an entirely compare the injury rates of a single first-time recordkeepers with the Web adequate incentive to employers to port’’ (Ex. 1326). OSHA agrees that it is site. No additional training will be thoroughly review their records and that important for users of the data to necessary to transfer data from already- publication of establishment-specific understand the rules under which the filled-in forms to a computer form. Note data through the final rule will require data was gathered, as shown by the that OSHA’s estimate of an hourly wage little further review. After all, OSHA ‘‘Explanatory Notes’’ OSHA includes of $48.78 for the person entering the records can already be accessed by with its currently-published ODI data. data assumes that the person is a OSHA at the time of inspection, as well OSHA intends to include similar notes technically-proficient employee; the as by employees and their and explanations with the data collected hourly wage for an employee who is not representatives (including unions and under this rulemaking to minimize technically proficient would typically employee attorneys). In addition, misunderstanding and be less. employers are already required to certify misrepresentation of the data. records under possible penalties of Many commenters wrote that they c. Review perjury. feared that publication of establishment- Several commenters suggested that Some commenters were concerned specific summaries of annual injuries some establishments might undertake about confidential business information and illnesses would harm the an extra level of review, or an extra or personal information (Exs. 0038, establishments’ reputations, and review effort, before sending the 0150, 0159, 0210, 0215, 0252, 1090, therefore, their businesses (Exs. 0157, information to OSHA (Exs. 0258, 1110, 1091, 1110). As discussed above, there 0160, 0162, 0181, 0189, 0205, 0218, 1123, 1205, 1336, 1356, 1399, 1401, is no need for confidential business 0224, 0235, 0240, 0242, 0245, 0249, 1413, 1427). For example, the Phylmar information in OSHA records, and 0251, 0255, 1084, 1089, 1090, 1091, Regulatory Roundtable (PRR) OSHA already urges employers to avoid 1092, 1093, 1095, 1096, 1106, 1112, commented, ‘‘Online submission to including confidential business 1113, 1115, 1117, 1123, 1192, 1197, OSHA will likely include the labor not information in OSHA records because 1198, 1199, 1200, 1205, 1209, 1214, just of record keepers, but of more OSHA allows employees and their 1216, 1217, 1218, 1224, 1225, 1272, senior health and safety staff to quality representatives access to these records 1276, 1277, 1279, 1281, 1282, 1283, control the data before submission. Most and places no limitations on the use of 1284, 1321, 1326, 1327, 1328, 1332,

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1333, 1336, 1337, 1341, 1342, 1343, or the public. Illness and injury National Grain and Feed Association 1348, 1349, 1351, 1355, 1356, 1357, prevention programs work best when (NGFA), commented, ‘‘Providing raw 1359, 1361, 1370, 1380, 1388, 1389, data on injuries and illnesses is data to those who do not know how to 1393, 1396, 1397, 1399, 1400, 1401, collected and analyzed frequently and interpret it or without putting such data 1402, 1405, 1408, 1412, 1421). A typical used as a tool to improve safety and in context invites improper and false comment was submitted by Grede health. As discussed above, this data conclusions or assumptions to be drawn Holdings, LLC (GH), which stated that collection effort will allow scholars and about the employer, which could lead to ‘‘[p]roviding raw data in a public forum public health experts to analyze unnecessary damage to a company’s to be viewed by individuals or groups establishment data, discover patterns in reputation, related loss of business and that may not know how to interpret the injuries and illnesses, and recommend jobs, and misallocation of resources by data could result in incorrect solutions. the public, government and industry’’ conclusions or assumptions about the (Ex. 1351). OSHA strongly disagrees e. Opportunity Costs of the Regulation employer. This misunderstanding of the with comments criticizing the value of data could further result in unwarranted Another comment about the proposed raw and un-interpreted injury and damage to a company’s reputation, rule had to do with what one illness data. Standard economic related loss of business and jobs, and commenter explicitly identified as principles show that information is unwarranted government inspections ‘‘opportunity costs’’, that is, the value of valuable, even if it is difficult to consuming the limited agency and effort forgone due to the compliance interpret. As economists as early as company resources that could be used costs for this final rule. The Food Adam Smith, and including Friedrich more effectively elsewhere’’ (Ex. 1402). Marketing Institute (FMI) commented, Hayek and Milton Friedman, have The National Association of Home ‘‘Thus, time spent addressing the shown, economic actors who have only Builders (NAHB) commented that proposed rule’s many requirements is a narrow view of the information ‘‘OSHA also does not consider the time that the safety personnel cannot available in the economy work together adverse impacts on safety and health spend providing safety training, to efficiently allocate resources. Hayek that could occur through the completing safety audits, or handling wrote in ‘‘The Use of Knowledge in implementation of this rule. These other matters critical to the ongoing Society’’ (1945) that ‘‘The whole acts as impacts have been discussed above and safety of the workplace. The one market, not because any of its include employers shifting resources opportunity costs created by the members survey the whole field, but away from safety and health initiatives proposed rule are potentially significant because their limited individual fields toward lagging indicators, employers and must be accounted for in the of vision sufficiently overlap so that including fewer details of injuries and proposal’s overall cost to employers’’ through many intermediaries the illnesses on recordkeeping forms, and (Ex. 1198). relevant information is communicated employers with sound injury and illness In response, the comment above is to all. The mere fact that there is one prevention programs being subjected to true for any government rule or price for any commodity—or rather that reputation damage from employers, regulation, or for that matter, any local prices are connected in a manner employees, and others making incorrect internal firm regulation or operating determined by the cost of transport, assessments of their safety and health procedure. Time spent on compliance etc.—brings about the solution which (it efforts from extremely limited facts’’ with any regulation is, by definition, is just conceptually possible) might (Ex. 1408). time that cannot be spent on something have been arrived at by one single mind Regarding the first comment, OSHA is else. That is one reason why OSHA has possessing all the information which is not aware of damage to the reputations kept the requirements for this final rule in fact dispersed among all the people of establishments or firms from other, as simple and as economical as possible. involved in the process.’’ similar data collection efforts. For OSHA does not believe that an extra ten example, MSHA has been collecting and minutes, or even an extra hour, every In addition, OSHA believes that the publishing individual mine injury data year will significantly affect the ability best solution to the ‘‘problem of on the Web for 15 years. OSHA itself of an establishment to have a safety information’’ is more information. has, for many years, published program or generate profits. In fact, Establishments, corporations, and establishment-specific results of its OSHA believes that when an industry groups will now have access to inspections and, more recently, establishment has access to the injury competitors’ information on injuries and establishment-specific data collected and illness information for other firms illnesses, and they will be able to through the ODI. There are other types that will be generated by this final rule, distinguish themselves from others in of web-published data, which include it should make an establishment’s safety their industry. public safety information (for example and health program more efficient. 7. Total Costs of the Rule police or fire responses to a business’s Further, in principal, the labor costs of location), health inspector reports, court affected workers reflect the opportunity As shown in the Table VI–1 below, records, and information about a firm’s costs of that labor. If the opportunity the total costs of the final rule would be financial condition. All of these sorts of cost is significantly higher than the an estimated $15.0 million per year. information are subject to labor costs, the firm should consider These costs are shown in the middle misinterpretation by members of the hiring more of the kind of labor in column of Table VI–1. Also note that the public. question. last column, ‘‘First Year Costs’’, is Regarding the second comment, broken out separately, but is also OSHA strongly disagrees with the f. Data Taken Out of Context included in the Final Rule Annual Costs commenter that a strong illness and Last, many commenters stated that column, having been amortized over 10 injury prevention program can be based OSHA injury and illness data might be years at 3 percent interest. It would be on hiding basic information on injury taken out of context or misinterpreted double-counting to add the total of the and illness rates from either employees by the public. One commenter, the second and third columns together.

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TABLE VI–1—TOTAL COSTS OF THE FINAL AND PROPOSED RULE

Proposed rule Final rule Final rule Cost element First year costs Annual costs Annualized costs (if different from annualized costs)

Electronic submission of part 1904 records by establishments with 250 or more employees ...... $6,954,950 4 $7,222,257 ...... Electronic submission of OSHA annual summary form (Form 300A) by estab- lishments with 20 to 249 employees in designated industries ...... 3,695,939 4,571,594 ...... This includes: Cost for establishments without a computer ($1,001,631). Cost for establishments with non-certified records ($231,192). Cost for Agricultural Establishments not in PEA ...... 229,568 ...... Familiarization ...... 411,061 3,506,436 Cost for check by unregulated establishments ...... 370,283 3,158,593 Cost of non-discrimination provision ...... 938,040 8,001,673 Electronic submission of part 1904 records upon notification ...... * 0 * 0 ......

Total Private Sector Costs ...... 10,650,889 13,742,804 ...... Total Government Costs ...... 1,242,000 1,279,260 1,545,162

Total ...... 11,892,889 15,022,064 ...... * This part of the proposed rule has no immediate costs or economic impacts. Under this part of the rule, an establishment would be required to submit data electronically if OSHA notified the establishment to do so as part of a specified data collection. Each specified data collection would be associated with its own particular costs, benefits, and economic impacts, which OSHA would estimate as part of obtaining OMB ap- proval for the specified data collection under the Paperwork Reduction Act of 1995.

First, as noted elsewhere in this OSHA and the public in a variety of Miles Free at Precision Machined document, the final rule does not add to ways. The annual summary data must Products Association (PMPA) provided or change any employer’s obligation to be posted where employees can see it. a detailed breakdown of estimated costs, complete, retain, and certify injury and Employees or their representatives can itemizing the tasks firms would have to illness records. The final rule also does also obtain and make public most of the undertake due to the proposed not add to or change the recording information from these records at any regulation change (Ex. 194). The costs criteria or definitions for these records. time, if they wish. These are the people totaled $592 per firm. Most of these The only change is that, under certain who are most likely to recognize if the tasks were not included in OSHA’s cost circumstances, employers will be records are inaccurate. Finally, OSHA estimate. The total of $592 includes the obligated to submit information from Compliance Officers routinely review use of a higher managerial wage ($30) these records to OSHA in an electronic these records when they perform and costs associated with reading the format. Many employers have already workplace inspections. While OSHA rule, reviewing, training, and done this through the OSHA Data inspections are a rare event for the development of IT resources; he notes Initiative and BLS SOII survey; these typical business, they are much more ‘‘many of these costs are initial setup’’. employers have not commented, either common for firms with over twenty OSHA believes that many of these costs on the proposed rule or on the employees in the kinds of higher-hazard seem inflated. For example, the second paperwork analyses, that they incurred industries subject to this rule. largest single cost element is for additional costs beyond those that OSHA requested comments on the ‘‘reading the rule’’ which will require 4 OSHA estimated (see for example the issue of whether employers newly hours. Given that the rule itself takes up ODI ICR 200912–1218–012 and the SOII required to submit records to OSHA less than one page of text, and can be ICR 201209–1220–001). may spend additional time assuring the readily explained in less than another Second, employers are already accuracy of their records, beyond what page of text, it is difficult to imagine required to examine and certify the they spend now. If all 431,296 how someone could spend 4 hours information they collect. Employers establishments were to spend an extra reading the rule. In addition, as noted who are already sufficiently satisfied half hour for an industrial health and above, review of records is already with the accuracy of their records to safety specialist to double-check the required; no additional IT resources are accept the risk of a criminal penalty are data prior to submission, then the costs required to submit a form electronically; unlikely to do more simply because they of this final rule would increase by and it is difficult to see how technically- must electronically submit the records $10.5 million. While this would be a qualified personnel will need training in to OSHA. Therefore, the prospect of substantial addition to the costs of the order to submit already-gathered data on submitting their data to OSHA would an Internet form. not provide any additional incentive to rule, such an addition would not alter carefully record injuries and illnesses. OSHA’s conclusion that this is neither For the Final Economic Analysis, Third, injury and illness records kept an economically-significant rule nor a OSHA added 5 minutes of time for under part 1904 are already available to rule that would impose significant costs establishments that are required to keep on a substantial number of small records, but are not newly required to 4 This is the cost for every year of the rule except businesses. submit annual records summaries to the first year. Because of the phase-in, in the first OSHA received two comments that OSHA under this rule. OSHA believes year establishments with 250 or more employees provided alternative estimates of the those establishments might need 5 only have to submit their summary data, at a cost of $239,197. All other costs are unaffected by the total costs. OSHA will review these minutes to check OSHA’s Web site, or phase-in. estimates here. various other Web sites or sources of

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information to determine if they are routinely keep OSHA injury and illness that the data submission requirements covered under this recordkeeping records under part 1904. of the final rule will improve the quality change. There are 889,327 Using reports by companies surveyed of the information and lead employers establishments that are required to keep about HR information systems that to increase workplace safety and health. records but are not required to report would need to be modified, the The Agency plans to make the injury under this new rule. If each Chamber estimates an initial-year cost of and illness data public, as encouraged establishment takes 5 minutes to check, over $440 million to re-program by President Obama’s Open Government using an Industrial Health and Safety information systems and software. The Initiative. Online access to these data Specialist with a loaded wage of $42.62, Chamber’s comments describe multiple will allow the public, including then the unit cost will be $3.55 [5/60 * challenges associated with the costs for employees and potential employees, $42.62] and the total cost, which occurs electronic submissions, including the researchers, employers, unions, and entirely in the first year and can be integration of software or databases, and workplace safety and health annualized over 10 years at 3 percent up to 16 hours of professional labor to consultants, to use and benefit from the interest, is $370,283 [$3,158,593 in the retool information systems and data. It will support the development of first year, discounted at a 3 percent software. The Chamber states, ‘‘The innovative ideas and allow everybody interest rate over 10 years]. majority of employers will find it with a stake in workplace safety and The Chamber of Commerce asserts necessary to change existing records health to participate in improving that ‘‘OSHA’s cost-benefit analysis is systems and procedures in order to occupational safety and health. deeply flawed’’ for multiple reasons and compile and submit information The data collected by BLS is mostly derives its own total costs of the according to the format and periodicity used in the aggregate. While BLS makes regulation at over $1.1 billion (Ex. of this proposed rule’s reporting micro data available in a restricted way 1396). In the submitted comment, the requirement.’’ The Chamber estimates to researchers, OSHA will make micro Chamber states one of the sources of the startup software modification costs of data, including case data, available to higher cost would ‘‘result from over $5,000 for large firms and $1,000 researchers and the public with far companies more closely scrutinizing for small firms. These estimates seem fewer restrictions. whether an injury or illness is high. The typical large firm has to track The BLS SOII is used as a basis for recordable and hence reportable.’’ The an average of 21 one-page records. It is much of the research on workplace discussion of this topic focused on the difficult to imagine how it would be safety and health in the US. Typical legal case of Caterpillar Logistics Inc. vs possible to spend $5,000 on a system examples include Economic Burden of Solis, to ‘‘illustrate the time and designed to track 21 one-page records. Occupational Injury and Illness in the resources that employers will be forced In any case, however, firms must United States, by J. Paul Leigh (2011); to expend in making these recordability already track these records, although Analyzing the Equity and Efficiency of decisions.’’ In their submitted they need not do so electronically, so OSHA Enforcement, by Wayne B. Gray comments, they describe the difficulty there is no need for a new system of any and John T. Scholz (1991); of diagnosing the source of kind as a result of the final rule. In the Establishment Size and Risk of musculoskeletal disorders (ergonomic case of small firms, the Chamber Occupational Injury, by Dr. Arthur injuries) which they cite as ‘‘34% of all estimated that there would be $1,000 in Oleinick MD, JD, MPH, Jeremy V. Gluck purported nonfatal workplace injuries software costs associated with Ph.D., MPH, and Kenneth E. Guire and illnesses’’ based on BLS statistics. submitting data on a one-page form that (1995); and Occupational Injury Rates in The Chamber stated that ‘‘OSHA’s the employer already is required to fill the U.S Hotel Industry, by Susan estimated costs barely scratch the out. OSHA believes that it is extremely Buchanan et al. in the American Journal surface of the resources that this unlikely that a small firm would spend of Industrial Medicine (2010). Some of proposed rule will require.’’ Given that $1,000 for this purpose. these studies, such as Gray and Sholtz, the costs to Caterpillar are associated Lastly in the submitted cost use establishment-specific data entirely with OSHA’s current part 1904 comments, the Chamber estimates previously only available on site at BLS. regulation, OSHA believes that this training costs at nearly $150 million, The database resulting from this final issue is not relevant to this rulemaking. ‘‘based on just one hour of training plus rule will provide for the use of In their discussion of costs, the the average cost for commercial establishment-specific data without Chamber provides its own estimates for occupational safety training materials.’’ having to work under the restrictions three specific elements: reviewing the The Chamber’s estimated training cost imposed by BLS for the use of rule, re-programming information would be for corporate managers who confidential data. It would also provide systems, and training. They state, ‘‘if ‘‘will need to be trained to comply with data on injury and illness classifications each firm on average spent just one hour the reporting formats, schedules and that are not currently available from any to review the rule’s compliance procedures.’’ As discussed above, OSHA source, including the BLS SOII. requirements, the initial year cost would believes that such training is Specifically, under this collection, there be over $342 million.’’ The Chamber unnecessary for a person competent in would be case-specific data for injuries based its cost estimate on the BLS 2013 computer use (or smart phone use) to and illnesses that do not involve days average compensation for private sector fill in an on-line form. away from work. The BLS case and managers and administrators, and a total demographic data is limited to cases count of 7.4 million separate C. Benefits involving days away from work and a establishments. It should be noted that As OSHA explained in the preamble small subset of cases involving the overwhelming majority of these to the proposed rule, OSHA anticipates restricted work activity. establishments are very small firms with that establishments’ electronic In order to determine possible fewer than 11 employees and firms in submission of establishment-specific monetary benefits to this rule, OSHA low-hazard industries that are partially injury/illness data will improve OSHA’s calculated the value of statistical life exempt from OSHA’s recordkeeping ability to identify, target, and remove (VSL) using Viscusi & Aldy’s (2003) requirements. These firms already know safety and health hazards, thereby meta-analysis of studies in the that this rulemaking does not apply to preventing workplace injuries, illnesses, economics literature that use a them, because they are not required to and deaths. In addition, OSHA believes willingness-to-pay methodology to

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estimate the imputed value of life- to submit annual injury summaries had Alliance (MCAA), stated: ‘‘. . . OSHA saving programs. The authors found that a 22 percent decrease in needle stick Incidence Rates are poor indicators of each fatality avoided was valued at injuries over 5 years. While OSHA does safety performance’’ (Ex. 1363). MCAA approximately $7 million in 2000 not claim that this data collection writes further that ‘‘Construction dollars. Using the GDP Deflator (Source: initiative will result in a 5 percent owners often determine whether https://research.stlouisfed.org/fred2/ annual decrease in injuries and contractors are eligible to bid on their series/GDPDEF/#), OSHA estimated that illnesses, even two-hundredths of a projects based on the owner’s this $7 million base number in 2000 percent decrease in injuries and perception of the contractors’ safety dollars yields an estimate of $9 million illnesses would be an overall benefit of performance. Owner’s evaluation of a in 2012 dollars for each fatality avoided. 400 fewer workplace injuries and company’s lagging indicators on the Many injuries, illnesses, and fatalities illnesses in the United States per year. OSHA’s [sic] Web site would be can be prevented at minimal cost. For Many commenters suggested that the misleading with regard to that example, the costs of greater use of benefits of this information collection company’s safety culture and safety already-purchased personal protective and dissemination would be dissipated performance’’ (Ex. 1363). OSHA equipment are minimal, yet many because of the poor quality of the disagrees, instead believing that OSHA’s fatalities described in OSHA’s information collected (Exs. 1219, 1333, Web site information is better than no inspection data systems could have 1391, 1199, 1343, 1342, 1110, 1110, information and that it won’t be been prevented through the use of 1402, 0258, 1359). misleading in the context of hundreds available personal protective In response, OSHA notes that or thousands of other similar equipment. This includes fatalities information is a unique good, which has establishments reporting their injury related to falls when a person was special properties including non- and illness rates, which will be wearing fall protection but did not have exclusion and non-rivalness, and that available for comparison. the lanyard attached and to electric the absence of information can create a The nomenclature of leading versus shocks where arc protection was market failure. The presence of some lagging indicators is unfortunate. OSHA available but unused or left in the truck. information can help to correct a market is not requiring an annual data For such minimal-cost preventative failure, even if the information is not collection to attempt to judge the safety measures, assuming they have costs of perfect. The information can still performance of any particular prevention of less than $1 million per provide a signal to the economic actors establishment, but rather to collect fatality prevented and using the VSL of (firms, establishments, workers, etc.) annual injury and illness data to use in $9 million and other parameters even if the information stream is noisy. ways similar to how the data collected typically used in OSHA benefits, if the The labor market may suffer from from the ODI was used already. OSHA final rule leads to either 1.5 fewer information asymmetries. If employers does not have a strong opinion on the fatalities or 0.025 percent fewer injuries know the actual risk of performing a job question of injury and illness data as a per year, the rule’s benefits will be equal and job applicants believe the job is lagging indicator, but the Agency knows to or greater than the costs. Many safer than it actually is, then employees that on average, current-year injury/ accident-prevention measures will have may accept a lower wage, in other illness rates are related to past-year as some costs, but even if these costs are words, a less efficient wage. The classic well as future-year injury and illness 75 percent of the benefits, the final rule economics article on market information rates. OSHA wants to collect this will have benefits exceeding costs if it asymmetries is Akerlof’s ‘‘The Market information; further, the Agency has prevented 4.8 fatalities or 0.8 percent for Lemons’’, which describes a been requiring many establishments to fewer injuries per year. OSHA expects theoretical model for the market for record this information for decades. As the rule’s beneficial effects to exceed used cars. For employers, there is an discussed elsewhere, this data these values. incentive to misrepresent the safety of collection effort is not an exercise in OSHA received many comments their workplace because it would allow judging safety and health reputations. concerning the possible benefits, or lack them to hire labor for less than the Other commenters who commented of benefits, for the final rule. Some of market clearing wage. that the collection and electronic the benefit suggestions were innovative. As discussed above, a common publication of these records would be One commenter suggested that having complaint of commenters was that helpful included many labor unions. A establishment-level injury and illness injury and illness summaries are representative comment is from the data on-line will be valuable for local lagging, rather than leading, indicators International Brotherhood of Teamsters medical care practitioners who can of safety problems (Exs. 0027, 0163, (IBT), which wrote that they currently check to see whether their patient’s 0210, 0250, 0258, 1109, 1124, 1193, have great difficulty obtaining these illness or injury is because of their job 1194, 1198, 1204, 1206, 1217, 1219, records for their membership from (Ex. 1106). The Council of State and 1222, 1275, 1279, 1321, 1326, 1331, unionized workplaces. The IBT wrote, Territorial Epidemiologists (CSTE) 1333, 1334, 1336, 1339, 1341, 1342, ‘‘The cases are provided as an commented, ‘‘Availability of on line 1343, 1355,, 1360, 1363, 1373, 1376, illustration of the fact that employers data on work-related injuries and 1380, 1389, 1390, 1391, 1392, 1393, frequently deny union representatives illnesses will allow health care 1396, 1399, 1400, 1402, 1406, 1408, access to this information, forcing the practitioners to assess the occurrence of 1409, 1410, 1411, 1413, 1416, 1417, union to pursue charges with the particular injuries and illnesses at the 1430, 1467, 1489). One commenter, the NLRB’’ (Ex. 1381). establishments where their patients American Health Care Association work’’ (Ex. 1106). (AHCA) commented, ‘‘Despite OSHA’s D. Economic Feasibility CSTE provided an example of a alleged position regarding the value of OSHA concludes that the final rule similar regulation in Massachusetts leading indicators as opposed to lagging will be economically feasible. For the which did reduce workplace injuries indicators, OSHA continues to push annual reporting requirement, affecting (Ex. 1106). The study by Laramie et al. employers into focusing resources and establishments with 250 or more (2011) showed that after implementing energy in the wrong direction’’ (Ex. employees, the average cost per affected a needlestick injury reporting program 1194). Another commenter, the establishment will be $215 per year. For in Massachusetts, the hospitals required Mechanical, Electrical, Sheet Metal the annual reporting requirement,

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affecting establishments with 20 to 249 $1,113, and annual profits would have and again in 2014 (on Infectious employees in designated high-hazard to be less than $226. These are Diseases), all small-business panel industries, the average cost per affected extremely unlikely combinations of participants had access to computers, establishment will be $11.13 per year. In revenue and profits for establishments the Internet, and email. addition, the non-discrimination of this size. VII. Unfunded Mandates provision, which has a cost of $5.86, on As a result of these considerations, average, in the first year for each of the per section 605 of the Regulatory For purposes of the Unfunded 1.3 million establishments subject to the Flexibility Act, OSHA proposes to Mandates Reform Act of 1995 (2 U.S.C. rule, should also be economically certify that this final rule will not have 1501 et seq.), as well as Executive Order feasible. These costs will not affect the a significant economic impact on a 12875, this final rule does not include economic viability of these substantial number of small entities. any federal mandate that may result in establishments. Thus, OSHA did not prepare an initial increased expenditures by state, local, regulatory flexibility analysis or conduct and tribal governments, or increased E. Regulatory Flexibility Certification a SBREFA Panel. OSHA requested expenditures by the private sector of The part of the final rule requiring comments on this certification. Many more than $100 million. annual reporting for establishments commenters stated that OSHA should Section 3 of the Occupational Safety with 250 or more employees will affect have held a SBREFA Panel (Exs. 0179, and Health Act makes clear that OSHA some small firms, according to the 0205, 0250, 0255, 1092, 1103, 1113, cannot enforce compliance with its definition of small firm used by the 1123, 1190, 1199, 1200, 1205, 1208, regulations or standards on the U.S. Small Business Administration (SBA). 1209, 1211, 1216, 1217, 1275, 1278, government ‘‘or any State or political In some sectors, such as construction, 1343, 1356, 1359, 1370, 1387, 1395, subdivision of a State.’’ Under voluntary where SBA’s definition only allows 1396, 1408, 1410, 1411, 1421). Other agreement with OSHA, some States relatively smaller firms, there are commenters stated that specific aspects enforce compliance with their State unlikely to be any firms with 250 or of the proposed regulation brought it to standards on public sector entities, and more employees that meet SBA small- the level that should require a SBREFA these agreements specify that these State business definitions. In other sectors, Panel review. The American Public standards must be equivalent to OSHA such as manufacturing, a small minority Power Association (APPA) commented, standards. Thus, although OSHA may of SBA-defined small businesses will be ‘‘While OSHA representatives have include compliance costs for affected subject to this rule. Thus, this part of the asserted that the new elements of the public sector entities in its analysis of final rule will affect only a small proposed rule are only extensions of the expected impacts associated with percentage of all small firms. However, existing requirements, APPA is of the the final rule, the rule does not involve because some small firms will be opinion that the proposed rule includes any unfunded mandates being imposed affected, especially in manufacturing, profound changes to the scope of the on any State or local government entity. OSHA has examined the impacts on existing framework. As such, OSHA Based on the evidence presented in small businesses of the costs of this rule. should have convened a Small Business this economic analysis, OSHA OSHA’s procedures for assessing the Advocacy Review panel per the Small concludes that the final rule would not significance of final rules on small Business Regulatory Enforcement impose a Federal mandate on the businesses suggest that costs greater Fairness Act (‘‘SBREFA’’) to analyze the private sector in excess of $100 million than 1 percent of revenues or 5 percent potential impact on the small business in expenditures in any one year. of profits may result in a significant community’’ (Ex. 1410). Accordingly, OSHA is not required to impact on a substantial number of small In response, OSHA continues to assert issue a written statement containing a businesses. To meet this level of that this regulation is similar to the ODI, qualitative and quantitative assessment significance at an estimated annual though with a larger number of of the anticipated costs and benefits of average cost of $215 per affected participating establishments. That data the Federal mandate, as required under establishment per year, annual revenues collection initiative ran successfully for Section 202(a) of the Unfunded for an establishment with 250 or more nearly 20 years. Mandates Reform Act of 1995 (2 U.S.C. employees would have to be less than In another example, the International 1532(a)). $21,500, and annual profits would have Association of Drilling Contractors to be less than $4,300. These are wrote, ‘‘While OSHA acknowledges a VIII. Federalism extremely unlikely combinations of small portion of businesses do not have The final rule has been reviewed in revenue and profits for firms of this size immediate access to computers or the accordance with Executive Order 13132 and would only occur for a very small Internet, the agency has not put the rule (64 FR 43255 (Aug. 10, 1999)), regarding number of firms in severe financial before a small business review panel as Federalism. The final rule is a distress. required under the Small Business ‘‘regulation’’ issued under Sections 8 The part of the final rule requiring Regulatory Enforcement Fairness Act of and 24 of the OSH Act (29 U.S.C. 657, annual electronic submission of data 1996 . . .’’ (Ex. 1199). OSHA’s response 673) and not an ‘‘occupational safety from establishments with 20 to 249 to the issue of computer and Internet and health standard’’ issued under employees in designated industries will access is discussed above. Section 6 of the OSH Act (29 U.S.C. also affect some small firms. As stated Despite the comments, OSHA 655). Therefore, pursuant to section above, costs greater than 1 percent of continues to believe that even if the 667(a) of the OSH Act, the final rule revenues or 5 percent of profits may costs per small establishment were ten does not preempt State law (29 U.S.C. result in a significant economic impact or twenty times higher than the tiny per 667(a)). The effect of the final rule on on a substantial number of small establishment costs of about $10 per states is discussed in section IX. State businesses. To meet this level of average small business, those costs Plan States. significance at an estimated annual would be nowhere near one percent of average cost of $11.13 per affected revenues or five percent of profits. IX. State Plan States establishment per year, annual revenues OSHA does note that during its past two For the purposes of section 18 of the for an establishment with 20 to 249 SBREFA Panel exercises, in 2012 (on OSH Act (29 U.S.C. 667) and the employees would have to be less than Injury and Illness Prevention Programs) requirements of 29 CFR 1904.37 and

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1902.7, within 6 months after requirements of the National Control Number 1218–0176 (expiration publication of the final OSHA rule, Environmental Policy Act (NEPA) of date 01/31/2018). state-plan states must promulgate 1969 (42 U.S.C. 4321 et seq.), the The final rule affects the ICR occupational injury and illness Council on Environmental Quality estimates in two programmatic ways: (1) recording and reporting requirements (CEQ) NEPA regulations (40 CFR parts Establishments that are subject to the that are substantially identical to those 1500–1508), and the Department of part 1904 requirements and have 250 or in 29 CFR part 1904 ‘‘Recording and Labor’s NEPA Procedures (29 CFR part more employees must electronically Reporting Occupational Injuries and 11). As a result of this review, OSHA submit to OSHA on an annual basis the Illnesses.’’ All other injury and illness has determined that the final rule will required information recorded on their recording and reporting requirements have no significant adverse effect on air, OSHA Forms 300, 301, and 300A; and (for example, industry exemptions, water, or soil quality, plant or animal (2) Establishments in certain designated reporting of fatalities and life, use of land, or other aspects of the industries that have 20 to 249 hospitalizations, record retention, or environment. employee involvement) that are employees must electronically submit to XI. Office of Management and Budget promulgated by state-plan states may be OSHA on an annual basis the required Review Under the Paperwork more stringent than, or supplemental to, information recorded on their OSHA Reduction Act of 1995 the federal requirements, but, because of Form 300A. In addition to submitting the unique nature of the national The final rule contains collection of the required data, employers subject to recordkeeping program, states must information (paperwork) requirements either of these requirements will also be consult with OSHA and obtain approval that are subject to review by the Office required to create an account and learn of such additional or more stringent of Management and Budget (OMB) to navigate the collection system. reporting and recording requirements to under the Paperwork Reduction Act of The final rule also requires employers ensure that they will not interfere with 1995 (PRA) (44 U.S.C. 3501 et seq.) and subject to the part 1904 requirements to uniform reporting objectives (29 CFR OMB regulations (5 CFR part 1320). The inform their employees of their right to 1904.37(b)(2), 29 CFR 1902.7(a)). PRA requires that agencies obtain report injuries and illnesses. This There are 27 state plan states and approval from OMB before conducting requirement can be met by posting a territories. The states and territories that any collection of information (44 U.S.C. recently-revised version of the OSHA cover private sector employers are 3507). The PRA defines a ‘‘collection of Poster. The public disclosure of Alaska, Arizona, California, Hawaii, information’’ as ‘‘the obtaining, causing information originally supplied by the Indiana, Iowa, Kentucky, Maryland, to be obtained, soliciting, or requiring Federal Government to the recipient for Michigan, Minnesota, Nevada, New the disclosure to third parties or the the purpose of disclosure to the public Mexico, North Carolina, Oregon, Puerto public of facts or opinions by or for an is not included within the definition of Rico, South Carolina, Tennessee, Utah, agency regardless of form or format’’ (44 collection of information (5 CFR Vermont, Virginia, Washington, and U.S.C. 3502(3)(A)). 1320.3(c)(2)). Wyoming. Connecticut, Illinois, New OSHA’s existing recordkeeping forms The burden hours for the final rule are Jersey, New York, and the Virgin Islands consist of the OSHA 300 Log, the 300A estimated to be 173,406 for the initial have OSHA-approved state plans that Summary, and the 301 Incident Report. year of implementation and 254,029 for apply to state and local government These forms are contained in the subsequent years. There are no capital employees only. Information Collection Request (ICR) (paperwork package) titled 29 CFR part costs for this collection of information. X. Environmental Impact Assessment 1904 Recording and Reporting The table below presents the new OSHA has reviewed the provisions of Occupational Injuries and Illnesses, components of the rule that comprise this final rule in accordance with the which OMB approved under OMB the ICR estimates.

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As required by 5 CFR 1320.5(a)(1)(iv) information from their injury and illness burden hours for the recordkeeping and 1320.8(d)(2), the following records to OSHA or OSHA’s designee. (part 1904) ICR are 2,667,251. paragraphs provide information about This requirement will only incur a 7. Estimated costs (capital-operation this ICR. paperwork burden when the agency and maintenance): There are no capital 1. Title: 29 CFR part 1904 Recording implements a notice of collection. For costs for the proposed information and Reporting Occupational Injuries each new data collection conducted collection. and Illnesses. under this proposed provision, the OSHA received a number of 2. Number of respondents: OSHA Agency will request OMB approval comments relating to the estimated time requires establishments that are under separate PRA control numbers. necessary to meet the paperwork required to keep injury and illness 3. Frequency of responses: Annually. requirements of the proposed changes records under part 1904, and that had published in the November 8, 2013 4. Number of responses: 1,644,661. 250 or more employees in the previous Improve Tracking of Workplace Injuries year, to submit information from these 5. Average time per response: Time and Illnesses Notice of Proposed records to OSHA or OSHA’s designee, per response varies from 20 minutes for Rulemaking (78 FR 67254–67283) and electronically, on an annual basis. There establishments reporting only under its August 14, 2014 Supplemental are approximately 34,000 § 1904.41(a)(2), to multiple hours for Notice (79 FR 47605–47610). References establishments that will be subject to large establishments with many to documents below are given as ‘‘Ex.’’ this requirement and that will submit recordable injuries and illnesses followed by the document number. The detailed case characteristic data on reporting under § 1904.41(a)(1). The document number is the last sequence approximately 700,000 occupational average time of response per of numbers in the Document ID Number injuries and illnesses per year. OSHA establishment is 41 minutes. on http://www.regulations.gov. For also proposes to require establishments 6. Estimated total burden hours: The example, Ex. 17, the proposed rule, is that are required to keep injury and burden hours for the final rule are Document ID Number OSHA–2013– illness records under part 1904, had 20 estimated to be 173,406 for the initial 0023–0017. The comments are grouped to 249 employees in the previous year, year of implementation and 254,029 for and addressed by topic. and are in certain designated industries subsequent years. Also, there is an Topic 1: A number of comments were to electronically submit the information adjustment decrease of 750,637 burden submitted pertaining to the extra time from the OSHA annual summary form hours due to decreases in (1) the required to submit data on a quarterly (Form 300A) to OSHA or OSHA’s number of establishments covered by basis, rather than an annual basis (Exs. designee on an annual basis. There are the recordkeeping rule; (2) the number 157, 247). Paula Loht of Gannett approximately 430,000 establishments of injuries and illness recorded by Fleming Inc. wrote, ‘‘Based on my that will be subject to this requirement. covered employers; and (3) the number calculations, if the proposed reporting Finally, OSHA proposes to require all of fatalities, amputations, requirements are implemented, it would employers who receive notification from hospitalization, and loss of eye reported take my two-person staff two weeks of OSHA to electronically submit specified by employers. The proposed total full-time work every quarter to comply,

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and would also require input from our much greater than OSHA predicts’’ (Ex. information would impose increased technical staff. That would be more than 1328). costs’’ (Ex. 1141). 160 person hours, four times per year.’’ Response: OSHA agrees that using the Response: The final rule does not Response: In the final rule, OSHA estimate of 10 minutes per require employers to adopt an electronic requires case-specific data to be establishment for entry of the OSHA system to record occupational injuries submitted electronically on an annual Forms 300 and 300A data and illnesses and to maintain OSHA basis rather than a quarterly basis. This underestimates the time that will be Forms 300, 301 and 300A. The new will effectively reduce the time required required to respond to this data provisions only require employers to to log into the collection system collection. Establishments with 250 or submit to OSHA the information they multiple times per year. It will also more employees will be required to have already recorded. One or more allow employers to comply with the submit the Form 300 data for all cases methods of data transmission (other existing review and certification entered on the log. Accordingly, OSHA than manual data entry) will be requirements under § 1904.32 prior to is now basing its estimation of the time provided, but use is not required. If the submitting their data to OSHA, required to submit Log 300 data on the employer has software with the ability eliminating the need for extra review number of injury and illness cases that to export or transmit data in a standard employers would have taken prior to a will be submitted rather than on an format that meets OSHA’s quarterly submission. An annual estimate of time per establishment. specifications, they may use that submission, rather than a quarterly OSHA now estimates employers will method to meet their reporting submission, results in a lower burden. require 2 minutes to enter the Form 300 obligations and minimize their burden Topic 2: Several comments were one line entry for each of the 714,000 to do so. Most commercially available submitted pertaining to the time cases that will be submitted to OSHA. recordkeeping software platforms have required to verify the accuracy of the This is in addition to the 10 minutes per such functionality and many large data prior to its submittal to OSHA (Exs. establishment for the data from the employers regularly use this method for 157, 247, 1205). Rick Hartwig of the OSHA Form 300A. Basing estimates on responding to the BLS SOII survey. Graphic Arts Coalition wrote, ‘‘The time case counts for Form 300 data provides OSHA believes many large a truer estimate of the total. estimates by OSHA with regard to the establishments subject to this Topic 4: Several comments were electronic submission process also does requirement will already be keeping submitted pertaining to keeping one’s not accurately account for the real time records electronically and to submitting their records electronically and will it will take an employer or its staff to a ‘‘batch file’’ in response to the new export or transmit the required review the reports, verify information, collection requirements (Exs. 247, 1326, information rather than entering it into ensure accuracy of the data entered, 1336, 1141, 1205). Michael Hall of the the web form. This will substantially enlist the assistance of knowledgeable Pacific Maritime Association (PMA) reduce the time needed to comply with opinions as necessary, redacting wrote, ‘‘Under the current recording the reporting requirement. However, the personal information, and to ensure system, PMA and other employers have estimates contained in the Final compliance with all applicable not maintained electronic records that Economic Analysis (FEA) and the ICR regulatory requirements, all prior to are capable of being uploaded or are calculated with the assumption that submittal to OSHA’’ (Ex. 1205). transmitted because they are only all submissions will be made by Response: The data is submitted after inspected during an OSHA inspection. manually entering the required data via the employer has certified to the Accordingly, moving to an electronic the web form. No time savings are accuracy of the records in accordance recording system capable of included in these estimates for with the already existing requirements transmission will be both time employers that will submit their data of § 1904.32, Annual Summary. The consuming and costly’’ (Ex. 1326). Marc through a batch file upload or electronic time required to review and certify the Freedman of the Coalition for transmission. OSHA will adjust the records is accounted for under this Workplace Safety (CWS) wrote, ‘‘OSHA estimates under renewed ICRs when we provision. The new reporting does not estimate how many employers have solid information regarding the requirements under § 1904.41 require currently maintain electronic records. percentage of employers that take the employer to submit the already As OSHA asserts, 30 percent of ODI advantage of batch file upload or verified information to OSHA. OSHA, respondents do not submit records electronic transmission. therefore, did not adjust its estimates for electronically; therefore, one can Topic 5: Several comments were this provision. assume that these records are not submitted pertaining to the necessity to Topic 3: Several comments were maintained electronically. From this, it train employees on how to use the submitted pertaining to the time OSHA can be safely assumed that a sizeable newly created reporting system (Exs. used to estimate the submittal of data number of employers will also be 1205, 1336, 1141). Susan Yashinskie of from the OSHA form 300 (Exs. 247, copying the required injury and illness the American Fuel & Petrochemical 1328, 1141). Eric Conn, representing the information from the establishment’s Manufacturers (AFPM) wrote, ‘‘This National Retail Federation (NRF), wrote, paper forms into the electronic estimate is highly inaccurate and ‘‘. . . OSHA bases its time estimates on submission forms—a cost OSHA simply significantly understates the costs given the time it takes employers to submit ignores when calculating the average the amount of time it will take for data to the Bureau of Labor Statistics cost per affected establishment with 250 employers to learn how to use and (BLS) in response to its survey. The data or more employees. Moreover, OSHA navigate the proposed electronic submitted for the BLS survey, however, has not analyzed whether current reporting system . . .’’ (Ex. 1336). Rick is more limited in terms of information existing electronic programs would Hartwig of the Graphic Arts Coalition requested. BLS requests only certain present such data in a format acceptable wrote, ‘‘Regarding the cost estimates data for up to 15 cases, but the Proposed to be uploaded to OSHA. Without outlined within the proposal, they do Regulation would require all relevant knowing what types of electronic forms not account for actual activities and Form 300 and/or 300A information from OSHA would consider for uploading, efforts that will be required by the the entire injury and illness record. the regulated community is unable to employer. These additional costs can Thus the time burden would actually be estimate whether uploading such include the training of personnel . . . to

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learn the different elements of the new determine the recordability of an injury health, Reporting and recordkeeping system . . .’’ (Ex. 1205). or illness. Employers are already requirements, State plans. Response: OSHA agrees that required to certify to the accuracy of the Authority and Signature employers will require time to create an OSHA forms prior to submitting these account and familiarize themselves with data. The time required to record cases This document was prepared under the Web site prior to entering and on the OSHA forms is already the direction of David Michaels, Ph.D., submitting the required data. This will accounted for in the estimates. It should MPH, Assistant Secretary of Labor for be a onetime cost in the initial year with be noted that the ‘‘MSD’’ column Mr. Occupational Safety and Health. It is costs in subsequent years for Freedman references does not exist at issued under Sections 8 and 24 of the establishment with employee turnover. this time. OSHA will account for burden Occupational Safety and Health Act (29 OSHA estimates employers will require associated with future rulemaking U.S.C. 657, 673), Section 553 of the 10 minutes to accomplish this task. requirements in future ICRs. It should Administrative Procedure Act (5 U.S.C. In addition to these five common also be noted that OSHA currently 553), and Secretary of Labor’s Order No. topics, several comments were publishes establishment-specific injury 41–2012 (77 FR 3912 (Jan. 25, 2012)). submitted on miscellaneous issues and illness rates on its Web site and has Signed at Washington, DC, on April 29, pertaining to paperwork burden. not observed any indication that 2016. Bill Taylor of the Public Agency publication of that data has increased David Michaels, Safety Management Association the time needed to record injuries and (PASMA)—South Chapter wrote, ‘‘. . . Assistant Secretary of Labor for Occupational illnesses. OSHA does not agree with Mr. Safety and Health. One of our member sites has Freedman’s conjecture that publication approximately 2,600 employees and of the data captured by these revised Final Rule their estimated cost of compliance with requirements will result in additional For the reasons stated in the this proposed quarterly reporting burden for recording injuries and preamble, OSHA amends parts 1904 and requirement is $7,250 . . . This illnesses. 1902 of chapter XVII of title 29 as employer also assumed labor costs of follows: $50 per hour, which includes benefits’’ The PRA specifies that Federal agencies cannot conduct or sponsor a (Ex. 157). PASMA’s labor cost estimate PART 1904—[AMENDED] of $50 per hour including benefits is collection of information unless it is consistent with OSHA’s estimate of approved by OMB and displays a ■ 1. The authority citation for part 1904 $48.78 for an Occupational Health and currently valid OMB approval number continues to read as follows: Safety Specialist to perform the (44 U.S.C. 3507). Also, notwithstanding any other provision of law, respondents Authority: 29 U.S.C. 657, 658, 660, 666, employer’s day-to-day recordkeeping 669, 673, Secretary of Labor’s Order No. 1– duties. are not required to respond to the 2012 (77 FR 3912, Jan. 25, 2012). Michael Hall of the Pacific Maritime information collection requirements ■ 2. Revise § 1904.35 to read as follows: Association (PMA) wrote, ‘‘OSHA’s until they have been approved and a estimates do not take into account the currently valid control number is § 1904.35 Employee involvement. costs described above that are unique to displayed. OSHA will publish a (a) Basic requirement. Your the maritime industry. In particular, the subsequent Federal Register document employees and their representatives man-hours that will have to be devoted when OMB takes further action on the must be involved in the recordkeeping to attempting to prevent, if possible, information collection requirements in system in several ways. duplicative reporting will be enormous’’ the Recordkeeping and Recording (1) You must inform each employee of (Ex. 1326). The costs of properly Occupational Injuries and Illnesses rule. how he or she is to report a work-related recording information on OSHA Forms XII. Consultation and Coordination injury or illness to you. 300, 301 and 300A are already With Indian Tribal Governments (2) You must provide employees with accounted for in the current the information described in paragraph recordkeeping requirements burden OSHA reviewed this final rule in (b)(1)(iii) of this section. estimates. The new reporting accordance with Executive Order 13175 (3) You must provide access to your requirements under 1904.41 only (65 FR 67249 (Nov. 9, 2000)) and injury and illness records for your require the employer to submit the data determined that it does not have ‘‘tribal employees and their representatives as that is already recorded. implications’’ as defined in that order. described in paragraph (b)(2) of this Marc Freedman of the Coalition for This final rule does not have substantial section. Workplace Safety (CWS) wrote, direct effects on one or more Indian (b) Implementation—(1) What must I ‘‘Because of the consequences of tribes, on the relationship between the do to make sure that employees report recording an injury under this proposal, Federal Government and Indian tribes, work-related injuries and illnesses to employers can be expected to involve or on the distribution of power and me? (i) You must establish a reasonable more experts in some cases. This is responsibilities between the Federal procedure for employees to report work- particularly the case with Government and Indian tribes. related injuries and illnesses promptly musculoskeletal disorders (‘‘MSD’’) . . . and accurately. A procedure is not List of Subjects employers are more likely to incur reasonable if it would deter or substantial costs to conduct evaluations 29 CFR Part 1904 discourage a reasonable employee from similar to Caterpillar’s in order to accurately reporting a workplace injury determine whether an injury is truly Health statistics, Occupational safety or illness; work-related. This is particularly the and health, Reporting and (ii) You must inform each employee case with musculoskeletal disorder recordkeeping requirements, State of your procedure for reporting work- injuries. OSHA has not accounted for plans. related injuries and illnesses; these additional costs that are likely to 29 CFR Part 1902 (iii) You must inform each employee flow from this proposed regulation’’ (Ex. that: 1141). OSHA has not adjusted its Health statistics, Intergovernmental (A) Employees have the right to report estimate for the time it requires to relations, Occupational safety and work-related injuries and illnesses; and

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(B) Employers are prohibited from establishment is classified in an (3) Do part-time, seasonal, or discharging or in any manner industry listed in appendix A to subpart temporary workers count as employees discriminating against employees for E of this part, then you must in the criteria for number of employees reporting work-related injuries or electronically submit information from in paragraph (a) of this section? Yes, illnesses; and OSHA Form 300A Summary of Work- each individual employed in the (iv) You must not discharge or in any Related Injuries and Illnesses to OSHA establishment at any time during the manner discriminate against any or OSHA’s designee. You must submit calendar year counts as one employee, employee for reporting a work-related the information once a year, no later including full-time, part-time, seasonal, injury or illness. than the date listed in paragraph (c) of and temporary workers. (2) [Reserved] this section of the year after the calendar (4) How will OSHA notify me that I ■ 3. Revise § 1904.36 to read as follows: year covered by the form. must submit information from the injury (3) Electronic submission of part 1904 and illness records as part of an § 1904.36 Prohibition against records upon notification. Upon discrimination. individual data collection under notification, you must electronically paragraph (a)(3) of this section? OSHA In addition to § 1904.35, section 11(c) submit the requested information from will notify you by mail if you will have of the OSH Act also prohibits you from your part 1904 records to OSHA or to submit information as part of an discriminating against an employee for OSHA’s designee. individual data collection under reporting a work-related fatality, injury, (b) Implementation—(1) Does every paragraph (a)(3). OSHA will also or illness. That provision of the Act also employer have to routinely submit announce individual data collections protects the employee who files a safety information from the injury and illness through publication in the Federal and health complaint, asks for access to records to OSHA? No, only two Register and the OSHA newsletter, and the part 1904 records, or otherwise categories of employers must routinely announcements on the OSHA Web site. exercises any rights afforded by the OSH submit information from their injury If you are an employer who must Act. and illness records. First, if your routinely submit the information, then Subpart E—Reporting Fatality, Injury establishment had 250 or more OSHA will not notify you about your and Illness Information to the employees at any time during the routine submittal. Government previous calendar year, and this part (5) How often do I have to submit the requires your establishment to keep information from the injury and illness ■ 4. Add an authority citation to subpart records, then you must submit the records? If you are required to submit E of 29 CFR part 1904 to read as follows: required Form 300A, 300, and 301 information under paragraph (a)(1) or Authority: 29 U.S.C. 657, 673, 5 U.S.C. information to OSHA once a year. (2) of this section, then you must submit 553, and Secretary of Labor’s Order 1–2012 Second, if your establishment had 20 or the information once a year, by the date (77 FR 3912, Jan. 25, 2012). more employees but fewer than 250 listed in paragraph (c) of this section of employees at any time during the the year after the calendar year covered ■ 5. Revise § 1904.41 to read as follows: previous calendar year, and your by the form or forms. If you are § 1904.41 Electronic submission of injury establishment is classified in an submitting information because OSHA and illness records to OSHA. industry listed in appendix A to subpart notified you to submit information as (a) Basic requirements—(1) Annual E of this part, then you must submit the part of an individual data collection electronic submission of part 1904 required Form 300A information to under paragraph (a)(3) of this section, records by establishments with 250 or OSHA once a year. Employers in these then you must submit the information more employees. If your establishment two categories must submit the required as often as specified in the notification. had 250 or more employees at any time information by the date listed in (6) How do I submit the information? during the previous calendar year, and paragraph (c) of this section of the year You must submit the information this part requires your establishment to after the calendar year covered by the electronically. OSHA will provide a keep records, then you must form or forms (for example, 2017 for the secure Web site for the electronic electronically submit information from 2016 forms). If you are not in either of submission of information. For the three recordkeeping forms that you these two categories, then you must individual data collections under keep under this part (OSHA Form 300A submit information from the injury and paragraph (a)(3) of this section, OSHA Summary of Work-Related Injuries and illness records to OSHA only if OSHA will include the Web site’s location in Illnesses, OSHA Form 300 Log of Work- notifies you to do so for an individual the notification for the data collection. Related Injuries and Illnesses, and data collection. (7) Do I have to submit information if OSHA Form 301 Injury and Illness (2) If I have to submit information my establishment is partially exempt Incident Report) to OSHA or OSHA’s under paragraph (a)(1) of this section, from keeping OSHA injury and illness designee. You must submit the do I have to submit all of the records? If you are partially exempt information once a year, no later than information from the recordkeeping from keeping injury and illness records the date listed in paragraph (c) of this form? No, you are required to submit all under §§ 1904.1 and/or 1904.2, then you section of the year after the calendar of the information from the form except do not have to routinely submit part year covered by the forms. the following: 1904 information under paragraphs (2) Annual electronic submission of (i) Log of Work-Related Injuries and (a)(1) and (2) of this section. You will OSHA Form 300A Summary of Work- Illnesses (OSHA Form 300): Employee have to submit information under Related Injuries and Illnesses by name (column B). paragraph (a)(3) of this section if OSHA establishments with 20 or more (ii) Injury and Illness Incident Report informs you in writing that it will employees but fewer than 250 (OSHA Form 301): Employee name collect injury and illness information employees in designated industries. If (field 1), employee address (field 2), from you. If you receive such a your establishment had 20 or more name of physician or other health care notification, then you must keep the employees but fewer than 250 professional (field 6), facility name and injury and illness records required by employees at any time during the address if treatment was given away this part and submit information as previous calendar year, and your from the worksite (field 7). directed.

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(8) Do I have to submit information if ownership of or control over one or (c) Reporting dates. (1) In 2017 and I am located in a State Plan State? Yes, more establishments required to submit 2018, establishments required to submit the requirements apply to employers information under paragraph (a)(1) or under paragraph (a)(1) or (2) of this located in State Plan States. (2) of this section, then the enterprise or section must submit the required (9) May an enterprise or corporate corporate office may collect and information according to the table in office electronically submit part 1904 electronically submit the information this paragraph (c)(1): records for its establishment(s)? Yes, if for the establishment(s). your enterprise or corporate office had

Establishments submitting under paragraph (a)(1) of Establishments submitting under paragraph (a)(2) of Submission this section must submit the required information from this section must submit the required information from Submission year this form/these forms: this form: deadline

2017 ...... 300A ...... 300A ...... July 1, 2017. 2018 ...... 300A, 300, 301 ...... 300A ...... July 1, 2018.

(2) Beginning in 2019, establishments ■ 6. Add appendix A to subpart E of Appendix A to Subpart E of Part 1904— that are required to submit under part 1904 to read as follows: Designated Industries for paragraph (a)(1) or (2) of this section § 1904.41(a)(2) Annual Electronic will have to submit all of the required Submission of OSHA Form 300A information by March 2 of the year after Summary of Work-Related Injuries and the calendar year covered by the form or Illnesses by Establishments With 20 or forms (for example, by March 2, 2019, More Employees but Fewer Than 250 for the forms covering 2018). Employees in Designated Industries

NAICS Industry

11 ...... Agriculture, forestry, fishing and hunting. 22 ...... Utilities. 23 ...... Construction. 31–33 ...... Manufacturing. 42 ...... Wholesale trade. 4413 ...... Automotive parts, accessories, and tire stores. 4421 ...... Furniture stores. 4422 ...... Home furnishings stores. 4441 ...... Building material and supplies dealers. 4442 ...... Lawn and garden equipment and supplies stores. 4451 ...... Grocery stores. 4452 ...... Specialty food stores. 4521 ...... Department stores. 4529 ...... Other general merchandise stores. 4533 ...... Used merchandise stores. 4542 ...... Vending machine operators. 4543 ...... Direct selling establishments. 4811 ...... Scheduled air transportation. 4841 ...... General freight trucking. 4842 ...... Specialized freight trucking. 4851 ...... Urban transit systems. 4852 ...... Interurban and rural bus transportation. 4853 ...... Taxi and limousine service. 4854 ...... School and employee bus transportation. 4855 ...... Charter bus industry. 4859 ...... Other transit and ground passenger transportation. 4871 ...... Scenic and sightseeing transportation, land. 4881 ...... Support activities for air transportation. 4882 ...... Support activities for rail transportation. 4883 ...... Support activities for water transportation. 4884 ...... Support activities for road transportation. 4889 ...... Other support activities for transportation. 4911 ...... Postal service. 4921 ...... Couriers and express delivery services. 4922 ...... Local messengers and local delivery. 4931 ...... Warehousing and storage. 5152 ...... Cable and other subscription programming. 5311 ...... Lessors of real estate. 5321 ...... Automotive equipment rental and leasing. 5322 ...... Consumer goods rental. 5323 ...... General rental centers. 5617 ...... Services to buildings and dwellings. 5621 ...... Waste collection. 5622 ...... Waste treatment and disposal. 5629 ...... Remediation and other waste management services. 6219 ...... Other ambulatory health care services.

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NAICS Industry

6221 ...... General medical and surgical hospitals. 6222 ...... Psychiatric and substance abuse hospitals. 6223 ...... Specialty (except psychiatric and substance abuse) hospitals. 6231 ...... Nursing care facilities. 6232 ...... Residential mental retardation, mental health and substance abuse facilities. 6233 ...... Community care facilities for the elderly. 6239 ...... Other residential care facilities. 6242 ...... Community food and housing, and emergency and other relief services. 6243 ...... Vocational rehabilitation services. 7111 ...... Performing arts companies. 7112 ...... Spectator sports. 7121 ...... Museums, historical sites, and similar institutions. 7131 ...... Amusement parks and arcades. 7132 ...... Gambling industries. 7211 ...... Traveler accommodation. 7212 ...... RV (recreational vehicle) parks and recreational camps. 7213 ...... Rooming and boarding houses. 7223 ...... Special food services. 8113 ...... Commercial and industrial machinery and equipment (except automotive and electronic) repair and maintenance. 8123 ...... Dry-cleaning and laundry services.

PART 1902—STATE PLANS FOR THE ■ 8. In § 1902.7, revise paragraph (d) to reporting regulations as enforceable DEVELOPMENT AND ENFORCEMENT read as follows: State requirements. The data collected OF STATE STANDARDS by OSHA as authorized by § 1904.41 § 1902.7 Injury and illness recording and reporting requirements. will be made available to the State Plan ■ States. Nothing in any State plan shall 7. The authority citation for part 1902 * * * * * is revised to read as follows: (d) As provided in section 18(c)(7) of affect the duties of employers to comply Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. the Act, State Plan States must adopt with § 1904.41. 667); Secretary of Labor’s Order No. 1–2012 requirements identical to those in 29 [FR Doc. 2016–10443 Filed 5–11–16; 8:45 am] (77 FR 3912, Jan. 25, 2012). CFR 1904.41 in their recordkeeping and BILLING CODE 4510–26–P

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Part III

Department of Labor

Employee Benefits Security Administration Proposed Exemptions From Certain Prohibited Transaction Restrictions; Notice

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DEPARTMENT OF LABOR [email protected], or by FAX to ABARTA, Inc. Pension Plan (the Plan (202) 219–0204 by the end of the or the Applicant), Located in Employee Benefits Security scheduled comment period. The Pittsburgh, PA Administration applications for exemption and the [Application No. D–11825] comments received will be available for Proposed Exemptions From Certain public inspection in the Public Proposed Exemption Prohibited Transaction Restrictions Documents Room of the Employee The Department is considering AGENCY: Employee Benefits Security Benefits Security Administration, U.S. granting an exemption under the Administration, Labor. Department of Labor, Room N–1515, authority of section 408(a) of the Act (or ACTION: Notice of proposed exemptions. 200 Constitution Avenue NW., ERISA) and section 4975(c)(2) of the Washington, DC 20210. Code, and in accordance with the SUMMARY: This document contains procedures set forth in 29 CFR part notices of pendency before the Warning: All comments will be made 2570, subpart B (76 FR 46637, 66644, Department of Labor (the Department) of available to the public. Do not include October 27, 2011).2 proposed exemptions from certain of the any personally identifiable information prohibited transaction restrictions of the (such as Social Security number, name, Section I. Covered Transactions Employee Retirement Income Security address, or other contact information) or Act of 1974 (ERISA or the Act) and/or confidential business information that If the exemption is granted, provided the Internal Revenue Code of 1986 (the you do not want publicly disclosed. All that the conditions and the definitions Code). This notice includes the comments may be posted on the Internet set forth below are satisfied, the following proposed exemptions: D– and can be retrieved by most Internet restrictions of sections 406(a)(1)(A), 11825, ABARTA, Inc. Pension Plan; D– search engines. 406(a)(1)(B), 406(a)(1)(D), 406(a)(1)(E), 11846 and D–11847, Sears Holdings 406(a)(2), 406(b)(1), 406(b)(2), and SUPPLEMENTARY INFORMATION: 401(k) Savings Plan (the Savings Plan) 407(a) of the Act, and the sanctions resulting from the application of section and the Sears Holdings Puerto Rico Notice to Interested Persons Savings Plan (the PR Plan); D–11851 4975 of the Code, by reason of section and D–11852, Sears Holdings 401(k) Notice of the proposed exemptions 4975(c)(1)(A), (B), (D) and (E) of the Savings Plan (the Savings Plan) and the will be provided to all interested Code, shall not apply to the following Sears Holdings Puerto Rico Savings Plan persons in the manner agreed upon by proposed transactions (the Covered (the PR Plan); and D–11871 and D– the applicant and the Department Transactions): 11872, Sears Holdings 401(k) Savings within 15 days of the date of publication (a) The in-kind contribution by Plan (the Savings Plan) and the Sears in the Federal Register. Such notice ABARTA Inc. (ABARTA) to the Plan Holdings Puerto Rico Savings Plan (the shall include a copy of the notice of (the Contribution) of ABARTA’s 100% PR Plan). proposed exemption as published in the ownership interests (the LLC Interests) DATES: All interested persons are invited Federal Register and shall inform in two special purpose entities: to submit written comments or requests interested persons of their right to Delabarta Pennsylvania Real Estate, LLC for a hearing on the pending comment and to request a hearing (Delabarta Pennsylvania LLC); and exemptions, unless otherwise stated in (where appropriate). Delabarta New York Real Estate, LLC (Delabarta New York LLC) (together, the the Notice of Proposed Exemption, The proposed exemptions were within 45 days from the date of LLCs): Each of which owns, as its only requested in applications filed pursuant asset, a parcel of improved real property publication of this Federal Register to section 408(a) of the Act and/or Notice. (a Property); section 4975(c)(2) of the Code, and in (b) Following the Contribution: (1) the ADDRESSES: Comments and requests for accordance with procedures set forth in Plan’s leasing of the Property owned a hearing should state: (1) The name, 29 CFR part 2570, Subpart B (76 FR 100% by the Delabarta Pennsylvania 1 address, and telephone number of the 66637, 66644, October 27, 2011). LLC to an ABARTA subsidiary, Coca- person making the comment or request, Effective December 31, 1978, section Cola Bottling Company of Lehigh and (2) the nature of the person’s 102 of Reorganization Plan No. 4 of Valley, Inc. (Coca-Cola Lehigh Valley), interest in the exemption and the 1978, 5 U.S.C. App. 1 (1996), transferred and a one-time renewal of that lease; manner in which the person would be the authority of the Secretary of the and (2) the Plan’s leasing of the Property adversely affected by the exemption. A Treasury to issue exemptions of the type owned 100% by the Delabarta New York request for a hearing must also state the requested to the Secretary of Labor. LLC to another ABARTA subsidiary, issues to be addressed and include a Therefore, these notices of proposed Coca-Cola Bottling Company of Buffalo, general description of the evidence to be exemption are issued solely by the Inc. (Coca-Cola Buffalo), and a one-time presented at the hearing. All written Department. renewal of that lease. Hereinafter, these comments and requests for a hearing (at two leases are referred to as the Leases, least three copies) should be sent to the The applications contain representations with regard to the and the two renewals of those Leases are Employee Benefits Security referred to as the Lease Renewals; Administration (EBSA), Office of proposed exemptions which are (c) The guarantees by Coca-Cola Exemption Determinations, Room N– summarized below. Interested persons Buffalo and Coca-Cola Lehigh Valley 5700, U.S. Department of Labor, 200 are referred to the applications on file (the Tenants) to the Plan in connection Constitution Avenue NW., Washington, with the Department for a complete with a make whole obligation (the Make DC 20210. Attention: Application No.__, statement of the facts and Whole Obligation), and any payments to stated in each Notice of Proposed representations. the Plan in fulfillment of that obligation; Exemption. Interested persons are also invited to submit comments and/or 1 The Department has considered exemption applications received prior to December 27, 2011 2 For purposes of this proposed exemption, hearing requests to EBSA via email or under the exemption procedures set forth in 29 CFR references to specific provisions of Title I of the FAX. Any such comments or requests Part 2570, Subpart B (55 FR 32836, 32847, August Act, unless otherwise specified, refer also to the should be sent either by email to: 10, 1990). corresponding provisions of the Code.

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(d) Each Tenant’s indemnification of approves the Plan’s entering into each Period), with respect to any of these the Plan (the Indemnification) in Lease and Lease Renewal, as being in three Lookback Periods, as of the earlier connection with a Leases and a Lease the interest of, and protective of, the of: (1) A Sale Date; or (2) a date that is Renewal; and Plan; five years from the first day of the (e)(1) The Plan’s granting of a right of (b) Each Lease and Lease Renewal Lookback Period (a Subsequent first offer (the Right of First Offer) to remains, at all times, a bondable triple Calculation Date), if (A)(i) the proceeds each Tenant, whereby the Tenant may net lease, such that all costs attributable received from the fair market value sale purchase a Property or LLC interest to a Property (including, among other of a Property (or LLC interest), in the from the Plan; and (2) a sale by the Plan things, taxes, insurance, utilities, and case of a sale, or (ii) the current fair of a Property or LLC Interest to a Tenant non-capital maintenance, repair, and market value of the LLC interest as of in connection with a Tenant’s exercise capital improvements) are the the applicable Subsequent Calculation of that Right of First Offer. responsibility of the Tenant, until the Date, in the case in which there has not earlier of: (1) The date on which the been a sale, plus (B) any income Section II. Conditions Regarding the In- Property or LLC Interest is first generated by the Property during that Kind Contribution Described in Section transferred to any person or entity that period, (C) less any expenses paid by I(A) is not wholly-owned by the Plan; (2) the the Plan during that period regarding (a) The Independent Fiduciary, as date on which the Plan sells a the LLC interest or Property, is less than defined in Section X(c) of this proposed controlling interest in the LLC to an (D) the fair market value of such LLC exemption, negotiates the terms and entity that is not wholly-owned by the Interest as of the first day of the conditions of the Contribution, and Plan; or (3) the date the Lease or Lease applicable Lookback Period, plus (E) an approves the Contribution as being in Renewal terminates by operation of law; amount equal to a 5% percent rate of the interest of the Plan; (c) Any amendment to a Lease or return on such Contributed Value (b) The LLC Interests are contributed Lease Renewal must be negotiated and during that period, compounded to the Plan at their current fair market approved by the Independent Fiduciary; annually; then the Tenant must value, as determined by the however, in no event may any contribute to the Plan an amount of cash Independent Fiduciary, following the amendment be inconsistent with the equal to any such difference, within 60 Independent Fiduciary’s review of an terms of this exemption, if granted; and days of the Sale Date or Subsequent appraisal report (the Appraisal Report) (d) For each Lease Renewal, all Calculation Date; and prepared by the Independent Appraiser, provisions of the Lease on which the (c) The Plan receives the full amount as defined in Section X(d) of this Lease Renewal is based, with the that the Plan may be due under the proposed exemption; exception of the specific rent amount Make Whole Obligation within 60 days (c) On the date of the Contribution, and any escalator provision, remain in of the applicable Sale Date, Calculation the aggregate contributed value of the effect. Date, or Subsequent Calculation Date, as LLC Interests is no less than the current Section IV. The Make Whole Obligation verified by the Independent Fiduciary. fair market value of the Properties Described in Section I(C) Section VI. Tenants’ Indemnification of underlying the LLC Interests, as verified the Plan Described In Section I(d) by the Independent Fiduciary; (a) After the Contribution, as of the (d) On the date of the Contribution, earlier of: (1) The date of a sale by the (a) In connection with each Lease and ABARTA contributes to the Plan a cash Plan of a Property (or an LLC Interest) Lease Renewal, and as set forth in amount that is no less than $500,000; (a Sale Date); or (2) the date that is five writing therein, the Tenant indemnifies, (e) Immediately following the years from the date of the Contribution defends upon request, and holds the Contribution, the aggregate fair market (hereinafter, a First Calculation Date), if Plan harmless from any, and against all, value of employer real property and (A)(i) the proceeds received from the losses, penalties and court costs related employer securities held by the Plan fair market value sale of a Property (or to: (1) The Tenant’s use, repair, represents less than 20% of the Plan’s LLC interest), in the case of a sale, or (ii) management, lease, sublease, assets; the current fair market value of the maintenance or operation of a Property, (f) As long as the Properties and/or Property (or the LLC interest) as of the (2) any violation of any applicable LLC interests are owned by the Plan, the First Calculation Date, in the case in environmental laws, the Americans Properties are not altered in any way which there has not been a sale, plus (B) with Disabilities Act (the ADA), and that: (1) Diminishes the fair market any income generated by the Property other health and/or safety laws; and (3) value or remaining useful life of the during that period, less (C) any expenses any default by the Tenant under the Property; (2) affects the structure or attributable to the Property (or the LLC Lease or Lease Renewal; and systems of any building existing on the Interest) paid by the Plan during that (b) Any amount owed the Plan in Property; or (3) affects an expansion of period, is less than (D) the fair market connection with a Tenant’s any building existing on the Property, value of such Property (or the LLC indemnification of the Plan, as without the prior written approval of Interest) at the time of the Contribution, described in the preceding paragraph, is the Independent Fiduciary; and plus (E) an amount equal to a 5% negotiated and approved by the (g) Following the Contribution, the percent rate of return on such Independent Fiduciary, and paid to the Plan does not transfer a portion of its Contributed Value during that period, Plan within the timeframe set forth by ownership interests in the LLCs or in compounded annually; then the Tenant the Independent Fiduciary. the Properties to a party in interest to must contribute an amount of cash to Section VII. The Right of First Offer and the Plan. the Plan equal to any such difference, within 60 days of the Sale Date or First the Sale by the Plan of a Property or an Section III. Conditions Regarding the Calculation Date; LLC Interest Described in Section I(E) Plan’s Leasing of the Properties to the (b) If the Plan continues to hold a (a) During the term of the Lease and Tenants Described in Section I(B) Property or LLC Interest during all or a any Lease Renewal, the Independent (a) The Independent Fiduciary portion of any of the three consecutive Fiduciary is solely responsible for negotiates the terms and conditions of five year periods that follow the First determining whether, when, and under the each Lease and Lease Renewal, and Calculation Date (each, a Lookback what terms the Plan may prudently sell

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one or both of: (1) The LLCs; or (2) the (b) The terms and conditions of the income tax purposes) for is prior tax Properties; proposed transactions are no less year. (b) During the term of the Lease and favorable to the Plan than those (d) The term ‘‘Independent any Lease Renewal, the Independent obtainable under similar circumstances Appraiser’’ means an individual or Fiduciary must approve any sale by the when negotiated at arm’s-length with entity meeting the definition of a Plan of one or both of: (1) The unrelated third parties. ‘‘Qualified Independent Appraiser’’ Properties; or (2) the LLC Interests, as under Department Regulation 25 CFR Section X. Definitions being in the interest of, and protective 2570.31(i) retained to determine, on of, the Plan; (a) The term ABARTA means behalf of the Plan, the fair market value (c) The Independent Fiduciary may ABARTA, Inc., and any of its affiliates. of the Properties as of the date of the not implement the Right of First Offer (b) The term ‘‘affiliate’’ means: (1) Contribution. unless the Independent Fiduciary has Any person directly or indirectly Summary of Facts and Representations 3 first negotiated the terms and conditions through one or more intermediaries, of a proposed sale of an LLC Interest (or controlling, controlled by, or under The Parties a Property) to a party that is unrelated common control with the person; (2) 1. ABARTA, which was founded in to ABARTA or any of its affiliates (the any officer, director, employee, relative, 1933 by Rolland Adams, currently Unrelated Proposed Sale); or partner in any such person; or (3) any maintains its headquarters in Pittsburgh, (d) Any sale of an LLC Interest or corporation or partnership of which Pennsylvania. ABARTA is privately- Property to ABARTA or any of its such person is an officer, director, owned and operates in the oil and gas, affiliates (hereinafter, ABARTA) partner, or employee. soft-drink bottling, and frozen food pursuant to the Right of First Offer, For the purposes of clause (a)(1) industries. Within its soft-drink bottling must equal the greater of: (1) The price above, the term ‘‘control’’ means the division, ABARTA owns and operates negotiated by the Independent power to exercise a controlling four Coca-Cola bottling companies, two Fiduciary, as between the Plan and the influence over the management or of which are Coca-Cola Buffalo and party that is unrelated to ABARTA; or policies of a person other than an Coca-Cola Lehigh Valley. As of March (2) the current fair market value of the individual. 31, 2015, ABARTA held assets totaling Property, as determined by the (c) The term ‘‘Independent Fiduciary’’ $238,824,000 and liabilities totaling Independent Appraiser; and means Evercore Trust Company $182,748,000. (e) If ABARTA does not purchase the (Evercore), or another fiduciary of the Coca-Cola Lehigh Valley, which was Property or LLC Interest under the same Plan who: (1) Is independent of or purchased by ABARTA in 1963, owns terms as the terms associated with the unrelated to ABARTA and the Tenants, the exclusive franchise rights in Unrelated Proposed Sale, the Plan may and has the appropriate training, perpetuity to distribute products of the sell the Property or LLC Interest to the experience, and facilities to act on Coca-Cola Company throughout unrelated third party within 360 days behalf of the Plan regarding the Covered Lancaster, Northampton, and Lehigh without triggering a new Right of First Transactions in accordance with the counties, in Pennsylvania, and part of Offer. fiduciary duties and responsibilities Warren County, in New Jersey. Coca- Section VIII. The Independent Fiduciary prescribed by the Act (including, if Cola Lehigh Valley has generated $3 necessary, the responsibility to seek the million in average annual Earnings (a) The Independent Fiduciary counsel of knowledgeable advisors to Before Interest, Tax, Depreciation, and represents the interests of the Plan for assist in its compliance with the Act); Amortization (EBITDA) since 2010. all purposes with respect to the Covered and (2) if relevant, succeeds Evercore in Coca-Cola Buffalo, which was Transactions; its capacity as Independent Fiduciary to purchased by ABARTA in 1980, owns (b) The Independent Fiduciary must: the exclusive franchise rights in (1) Review, negotiate and approve the the Plan in connection with the Covered Transactions. The Independent perpetuity to distribute products of the terms and conditions of each Covered Coca-Cola Company throughout eight Transaction; Fiduciary will not be deemed to be independent of and unrelated to counties in and around Buffalo, New (2) Review and approve the terms of York. Coca-Cola Buffalo has generated the transfer agreement (the Transfer ABARTA and the Tenants if: (1) Such Independent Fiduciary directly or $2.5 million in average annual EBITDA Agreement) that evidences the since 2010. Contribution; indirectly controls, is controlled by or is under common control, with ABARTA 2. The Plan, which was adopted by (3) Monitor and enforce the Plan’s ABARTA on January 1, 1981, is a rights and interests with respect to the or the Tenants; (2) such Independent Fiduciary directly or indirectly receives noncontributory, defined benefit Properties; pension plan which covers (4) Monitor ABARTA’s compliance any compensation or other consideration in connection with any approximately 4,000 non-union with the terms of this exemption, employees of ABARTA. As of January 1, including all obligations set forth under transaction described in this exemption other than for acting as Independent 2015, the Plan had 1,265 participants. the Leases; and As of July 31, 2015, the Plan held assets (5) Take all steps that are necessary Fiduciary in connection with the totaling $36,737,158. The Plan and proper to protect the Plan in the transactions described herein, provided Administrator is a Committee, the event of any non-compliance by that the amount or payment of such members of which are designated by ABARTA. compensation is not contingent upon, or in any way affected by, the Independent ABARTA’s Board of Directors. Section IX. General Conditions Fiduciary’s ultimate decision; and (3) Contributions required to fund the Plan (a) The Plan does not pay any real the annual gross revenue received by are remitted to and held under the estate fees, commissions, costs or other the Independent Fiduciary, during any ABARTA, Inc. Defined Benefit Master expenses in connection with the year of its engagement, from ABARTA 3 The Summary of Facts and Representations is proposed transactions, including any and the Tenants, exceeds 2% of the based on the Applicant’s representations and does fees that are currently charged, or any Independent Fiduciary’s annual gross not reflect the views of the Department, unless fees which accrue in the future; and revenue from all sources (for federal indicated otherwise.

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Trust (the Master Trust), the custodian the New York Property in 1959 and costs related to the Properties, including of which is Fidelity Management Trust subsequently constructed the two taxes, insurance, utilities, and non- Company (Fidelity). In addition to warehouse facilities in 1960 and 1967. capital maintenance, repair, and capital ABARTA, seven other companies, Currently, the New York Property is improvements will be the responsibility including Coca-Cola Lehigh Valley and 100% occupied by Coca-Cola Buffalo. of the Tenants. Additionally, the triple- Coca-Cola Buffalo, participate in the Hereinafter, Coca-Cola Lehigh Valley net lease structure ensures that the rent Master Trust. and Coca-Cola Buffalo are referred to as payable by the Tenants to the Plan will The Plan’s trustees are John F. Blitzer the Tenants. remain payable under all circumstances, III, Katherine W. Fedor, and William F. The Contribution with the exception of a partial Holtz (the Trustees). Each of the condemnation of the underlying Trustees serves concurrently as an 4. ABARTA has requested an Properties. officer of ABARTA: Mr. Blitzer, as administrative exemption from the The Leases will remain bondable until Director, President and CEO; Ms. Fedor, Department in order to contribute the the earlier of: (a) The date on which as Secretary; and Mr. Holtz as Vice LLC Interests to the Plan. To evidence Property or LLC Interest is first President, Treasurer, and Secretary. In the Contribution, ABARTA and the Plan transferred to any person or entity that addition, two Trustees, Mr. Holtz and will enter into a written transfer is not wholly owned by the Plan; (b) the Ms. Fedor, serve as officers for the LLCs, agreement (the Transfer Agreement), date on which the Plan sells a but, if this exemption is granted, they which will govern the terms upon controlling interest in the applicable will not receive compensation from the which the LLC Interests will be LLC to an entity that is not wholly Plan as officers of the LLCs following contributed to and held by the Plan. owned by the Plan; or (c) the date the the Contribution. As will be stated in the Transfer Lease or Lease Renewal terminates by The Trustees have delegated Agreement, the Independent Fiduciary operation of law. investment management discretion over must act on behalf of the Plan in With regard to alterations to the Plan assets to Fidelity, subject to a connection with the Contribution, and Properties by the Tenants, the Tenants written investment policy approved by must negotiate and approve the terms must secure consent from the the Trustees which specifies ranges for upon which the Plan will accept the Independent Fiduciary prior to affecting asset allocations (the Investment Policy LLC Interests. As also stated in the any alteration which would: (a) Statement). The Investment Policy Transfer Agreement, the value of the Diminish the fair market value or Statement expressly permits the in-kind Properties will be determined by the remaining useful life of the Properties; contribution of employer real property Independent Fiduciary based upon an (b) affect the structure or systems of any to the Plan. appraisal of the Properties performed by building existing on the Properties, or the Independent Appraiser, as of the The LLCs (c) effect an expansion of any building date of the Contribution. existing on the Properties. 3. ABARTA is the sole member and The Plan will not pay any Further, any amendment to a Lease or 100% owner of both Delabarta New commissions, costs or other expenses in Lease Renewal must be negotiated and York LLC and Delabarta Pennsylvania connection with the Contribution, approved by the Independent Fiduciary. LLC. The Applicant represents that the including any fees that are currently However, in no event may an LLCs do not have any employees and charged, or any fees which are charged amendment be inconsistent with the there are no significant costs associated in the future, by the Independent terms of this exemption, if granted. with ownership, other than a nominal Appraiser or the Independent Fiduciary. Finally, each Lease or Lease Renewal 5. In addition to the Contribution and annual administrative filing fee required prohibits the Plan from transferring a in connection therewith, ABARTA will by the State of New York, which fractional part of its LLC Interests to make a one-time, cash contribution of ABARTA will continue to pay following ABARTA or a Tenant. the Contribution. $500,000 to the Plan. Taken together 7. Under the Pennsylvania Property Each LLC owns, as its only asset, a with the appraised fair market value of Lease, Coca-Cola Lehigh Valley will pay parcel of unencumbered real property, the Properties underlying the LLC the Plan a base rental amount of as well as certain buildings situated on Interests (see Representations 18 and $379,441, due in equal monthly 19), the estimated aggregate value of the each. The sole asset of Delabarta Lehigh installments of $31,620. In addition, on Contribution amounts to $6,900,000, Valley LLC consists of unencumbered the first day of each Lease Year from and is in excess of ABARTA’s 2015 title to approximately 10.615 acres of and after the second Lease Year, the minimum funding obligation under land and one improvement thereon, base rental amount under the section 302 of the Act. located at 2150 Industrial Drive Pennsylvania Property Lease will be Bethlehem, Pennsylvania (the The Leases increased by an amount equal to the Pennsylvania Property). Coca-Cola product of the Base Rent then in effect Lehigh Valley purchased the 6. The Plan, through the LLCs, will enter into bondable, triple-net leases multiplied by a 2.0% escalator Pennsylvania Property as a vacant 5 (the Leases) of the Properties with each adjustment. In effect, the Plan will parcel of land in 1980 and subsequently Tenant. Each Lease will be substantially receive an annualized 9.44% rate of constructed a 116,751-square foot identical in all respects, other than the return under such Lease. warehouse/distribution facility on the name of the Tenant, the name of the Under the New York Property Lease, Property in 1981. Currently, the LLC Landlord,4 and the rent amount to Coca-Cola Buffalo will pay the Plan a Pennsylvania Property is 100% be paid. Each Lease will also have an base rental amount of $348,563, due in occupied by Coca-Cola Lehigh Valley. equal monthly installments of $29,047. The sole asset of Delabarta New York initial term of 10 years with the respective Tenant. LLC consists of unencumbered title to 5 The bondable, triple-net lease The annual escalator under the Pennsylvania approximately 9.21 acres of land and Property Lease is based upon a market rent analysis structure will ensure that all operating two improvements thereon, located at performed by the Independent Appraiser. The 150 and 200 Milens Road in the Town Independent Fiduciary has confirmed that the 4 References to the Plan as the Landlord under the rental rate under the Pennsylvania Property Lease of Tonawanda, New York (the New York Leases are meant to include the LLCs which hold is consistent with the fair market rental value in the Property). Coca-Cola Buffalo purchased title to the Properties. Erie, Pennsylvania market.

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The New York Property Lease does not a Make Whole Obligation, whereby each receives any amount due under the provide for annual rent escalations from Tenant will ensure that the Plan Make Whole Obligation, within 60 days and after the second lease year.6 receives at least a five percent of the date that triggers the payment of However, it is anticipated that this annualized rate of return in connection such amount. with the Plan’s ownership of the LLC Lease will generate a 13.94% annual The Indemnification rate of return to the Plan. Interests. After the Contribution, as of 8. Over the initial 10 year term of the the earlier of: (i) A Sale Date; or (2) a 11. The Lease Agreements provide Leases, the Plan will receive aggregate First Calculation Date, if (A)(i) the that each Tenant reimburse the Plan, rental income totaling $7,640,403.05 proceeds received from the fair market and indemnify, defend upon request, ($4,154,773.05 in aggregate income value sale of a Property (or LLC and hold harmless the Plan from any, under the Pennsylvania Lease and interest), in the case of a sale, or (ii) the and against all losses, penalties and $3,485,630.00 in aggregate income current fair market value of the Property court costs related to: (a) The Tenant’s under the New York Lease). (or the LLC interest) as of the First use, repair, management, lease, The Applicant represents that the Calculation Date, in the case in which sublease, maintenance or operation of a rental rates under the Leases represent there has not been a sale, plus (B) any Property; (b) any violation of any fair market value, as (a) they were income generated by the Property applicable environmental laws, the agreed upon following arm’s length during that period, less (C) any expenses ADA, and other health and/or safety negotiations between the Independent attributable to the Property (or the LLC laws; and (c) any default by a Tenant Fiduciary and the Tenants, and (b) are Interest) paid by the Plan during that under the Lease. Any reimbursement supported by a market rent analysis period, is less than (D) the fair market paid to the Plan by a Tenant in performed by the Independent value of such Property (or the LLC connection with the Tenant’s Appraiser. Interest) at the time of the Contribution, Indemnification, will be negotiated and plus (E) an amount equal to a 5% approved by the Independent Fiduciary. The Lease Renewals percent rate of return on such The Right of First Offer 9. With respect to each Lease, the Contributed Value during that period, 12. The Lease Agreements provide a Tenant has the right to renew the term compounded annually; then the Tenant Right of First Offer to the Tenants, of the Lease for an additional Renewal must contribute an amount of cash to which states that, in the event that the Term of ten years by giving the Plan the Plan equal to any such difference, Plan desires to sell either a Property or written notice (the Renewal Notice) not within 60 days of the Sale Date or First an LLC Interest during the initial ten- later than the last day of the ninth Lease Calculation Date; year Lease term or during any Lease year. During such time, the Plan will be Additionally, if the Plan continues to Renewal period, the Plan must first offer represented by the Independent hold a Property or LLC Interest during such Property or LLC Interest to the Fiduciary. Within 90 days of its receipt all or a portion of the three consecutive Tenant at terms the Plan intends to offer of the Tenant’s Renewal Notice, the five year Lookback Periods that follow such Property or LLC Interest to an Independent Fiduciary will provide the First Calculation Date, with respect unrelated third party (the Unrelated such Tenant with the Independent to any of these Lookback Periods, as of Proposed Sale). Any sale of an LLC Fiduciary’s determination of the fair the earlier of: (1) A Sale Date; or (2) a Interest or Property to ABARTA market annual base rent, and the Subsequent Calculation Date, if (A)(i) pursuant to the Right of First Offer must escalation factor which it desires to be the proceeds received from the fair equal the greater of: (a) The price applicable during the Renewal Term. market value sale of a Property (or LLC negotiated by the Independent The Independent Fiduciary and the interest), in the case of a sale, or (ii) the Fiduciary, as between the Plan and the Tenant will then have thirty days to current fair market value of the LLC party that is unrelated to ABARTA; or agree upon a base rent amount and interest as of the applicable Subsequent (b) the current fair market value of the escalation factor for the purposes of the Calculation Date, in the case in which Property, as determined by the Renewal Term.7 In no event, however, there has not been a sale, plus (B) any Independent Appraiser, as described will the Independent Fiduciary be income generated by the Property herein in Representations 16–19. under any obligation to agree to a base during that period, (C) less any expenses paid by the Plan during that period If ABARTA does not purchase the rent for the first year of the Renewal Property or LLC Interest under the same Term which is less than the annual base regarding the LLC interest or Property, is less than (D) the fair market value of terms as the terms associated with the rent in effect during the Lease Year such LLC Interest as of the first day of Unrelated Proposed Sale, the Plan may immediately preceding the the applicable Lookback Period, plus (E) sell the Property or LLC Interest to the commencement of the Renewal Term. an amount equal to a 5% percent rate unrelated third party within 360 days The Make Whole Obligation of return on such Contributed Value without triggering a new Right of First during that period, compounded Offer. 10. The Lease Agreements and any During the term of the Lease and any Lease Renewal Agreement will include annually; then the Tenant must contribute to the Plan an amount of cash Lease Renewal, the Independent Fiduciary is solely responsible for: (a) 6 The absence of an annual rent escalator under equal to any such difference, within 60 the New York Property Lease is based upon the days of the Sale Date or Subsequent determining whether, when, and under Independent Appraiser’s conclusion that rent Calculation Date; and what terms the Plan may prudently sell escalators are not prevalent in commercial leases in The Make Whole Obligation will one or both of: (i) The LLC Interests; or the New York Property’s market. The Independent remain in effect for up to twenty years, (ii) the Properties; and (b) approving any Fiduciary has confirmed that the rental rate under the New York Property Lease is consistent with the which is the maximum term of this such sale as being in the interest of, and fair market rental value in the Buffalo, New York proposed exemption, if granted, unless protective of, the Plan. In addition, the market. the Properties or LLC Interests are sold Independent Fiduciary may not 7 In the event the Plan and Tenant are unable to before then. The Independent Fiduciary implement the Right of First Offer agree upon a base rent amount and escalation factor, each will appoint an independent appraiser will represent the interests of the Plan unless the Independent Fiduciary has to determine a fair market base rent amount and with respect to the Make Whole first negotiated the terms and conditions escalation factor. Obligation, and will ensure that the Plan of an Unrelated Proposed Sale.

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Legal Analysis Property or LLC interest by the Plan to Properties. CBRE is a real estate 13. The Act prohibits a wide range of ABARTA pursuant to the Right of First appraisal firm that provides real estate transactions involving a plan. In this Offer would violate section 406(a)(1)(A) financial advisory services and employs regard, section 406(a)(1)(A) of the Act and (D) of the Act, as well as section personnel with extensive experience provides that a fiduciary with respect to 406(b)(1) and (b)(2) of the Act. In providing valuation and appraisal a plan shall not cause a plan to engage addition, the Indemnification and the services for real estate classified as in a transaction if the fiduciary knows Make Whole Obligation would violate warehouse/distribution. Thomas H. Myers, Jr. and John B. or should know that such transaction section 406(a)(1)(C) of the Act, and Rush of CBRE’s Valuation and Advisory constitutes a direct or indirect sale or section 406(b)(1) and (b)(2) of the Act. 15. In addition to the prohibited Services prepared the appraisal report exchange, or leasing, of any property transaction provisions described above, for the Pennsylvania Property (the between a plan and a party in interest. sections 406(a)(1)(E) and 406(a)(2) of the Pennsylvania Property Appraisal Section 406(a)(1)(B) of the Act states Act prohibit a plan from acquiring or Report) in November, 2014, and will that a fiduciary with respect to a plan holding employer real property in update that report for purposes of this shall not cause a plan to engage in a violation of section 407(a) of the Act.8 exemption, if granted. Mr. Myers is a transaction if the fiduciary knows or has Section 407(a) of the Act provides that Certified General Real Estate Appraiser reason to know that such transaction a plan may not acquire or hold in Pennsylvania and New Jersey, and an constitutes a direct or indirect extension employer real property unless such Affiliate Member of the Appraisal of credit between a plan and a party in property is ‘‘qualifying employer real Institute (MAI). Mr. Myers has 43 years interest. Section 406(a)(1)(D) of the Act property.’’ Section 407(d)(2) of the Act of relevant real estate experience, with provides that a fiduciary with respect to defines the term ‘‘employer real a primary focus on major industrial a plan shall not cause a plan to engage property’’ as real property that is leased properties. Mr. Rush is a Certified in a transaction if the fiduciary knows to an employer or to an affiliate of such General Real Estate Appraiser in or should know that such transaction employer. Section 407(d)(4) of the Act Delaware, New Jersey, and constitutes a direct or indirect transfer defines the term ‘‘qualifying employer Pennsylvania, and has over 39 years of to, or use by or for the benefit of, a party real property’’ to mean parcels of relevant real estate experience, in interest, of any assets of the plan. employer real property: (a) If a including experience that encompasses Section 406(b)(1) of the Act prohibits a substantial number of the parcels are a wide variety of property types fiduciary from dealing with the assets of dispersed geographically; (b) if each including office, retail, and industrial. the plan in such fiduciary’s own interest parcel of real property and the Mr. Rush also holds an MAI designation or for such fiduciary’s personal account. improvements thereon are suitable (or from the Appraisal Institute and a CRE Section 406(b)(2) of the Act prohibits a adaptable without excessive cost) for designation from the Counselors of Real fiduciary from acting in such fiduciary’s more than one use; and (c) if the Estate. individual or other capacity in any acquisition and retention of such Robert J. DiFalco and Joseph V. transaction involving the plan on behalf property complies with the provisions Ferranti of CBRE’s Valuation and of a party (or from representing a party) of sections 406 and 407 of the Act. Advisory Services prepared an appraisal whose interests are adverse to the Section 407(a)(2) of the Act further report for the New York Property (the interests of the Plan, or the interests of prohibits a plan from acquiring or New York Appraisal Report) in the Plan participants and beneficiaries. holding qualifying employer real November, 2014, and will update that 14. The term ‘‘party in interest’’ is property where ‘‘immediately after such report for purposes of this exemption, if defined in section 3(14)(A) and (C) of acquisition the aggregate fair market granted. Mr. DiFalco is a Certified the Act to include a fiduciary with value of employer securities and General Real Estate Appraiser in New respect to a plan, and an employer, any employer real property held by the plan York, New Jersey, and Connecticut and of whose employees are covered by such exceeds 10% of the fair market value of an MAI. Plan. In addition, section 3(14)(G) of the the assets of the plan.’’ 17. As represented by CBRE, each Act defines the term ‘‘party in interest’’ Given that: the acquisition and Appraisal Report is self-contained and to include any corporation of which retention of the Properties by the Plan intended to comply with the reporting 50% or more of the combined voting would not comply with the provisions requirements set forth under Standards power of all classes of stock entitled to of section 406 and 407 of the Act; and Rule 2–2(a) of USPAP. Additionally, vote or the total value of shares of all fair market values of the Properties CBRE represents that the intended use classes of stock of such corporation is immediately after acquisition would of the Appraisal Report is to assist the owned directly or indirectly, or held by constitute approximately 18.7% of the Independent Fiduciary appointed to such employer. As fiduciaries to the fair market value of the Plan’s assets, the oversee the proposed transactions to Plan, the Trustees are parties in interest Plan’s acquisition and holding of the comply with its responsibilities under with respect to the Plan pursuant to Properties would violate sections the Act in connection with the proposed section 3(14)(A) of the Act. ABARTA, as 406(a)(1)(E), 406(a)(2), and 407(a) of the transactions. Finally, CBRE represents an employer whose employees are Act. that its fee for appraisal services covered by the Plan, and the Tenants, as provided in connection with the wholly-owned subsidiaries of ABARTA, The Qualified Independent Appraiser proposed transactions represents less are parties in interest with respect to the 16. The Independent Fiduciary has than 0.5% of its annual revenues in Plan pursuant to section 3(14)(C) and retained CBRE, Inc. (CBRE) to render an 2014 and 2015, which are the years it (G) of the Act, respectively. opinion as to the fair market value of the has provided such services. If this proposed exemption is granted, Pennsylvania Property Appraisal Report the Contribution, the Leases and the 8 According to the Applicant, the LLC Interests Lease Renewals would violate section are pass-through entities, owning 100% of the 18. In the Pennsylvania Property 406(a)(1)(A), 406(b)(1) and (b)(2) of the underlying Properties. Therefore, the Applicant Appraisal Report, CBRE describes the asserts that the LLC Interests are not considered Act. The Right of First Offer would securities, or for that matter, ‘‘employer securities’’ Pennsylvania Property as a 10.615 acre violate section 406(a)(1)(A), 406(b)(1) or ‘‘qualifying employer securities’’ under section parcel of land improved by a 116,751 and (b)(2) of the Act. A sale back of a 407(d)(1)or section 407(d)(5) of the Act. square foot warehouse/distribution

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facility. CBRE notes that the Property is amount of $3.25 per square foot on a the exemption, if it determines that the located in the Lehigh Valley region, an triple-net basis, or $348,563 per year Covered Transactions are in the interest area with a relatively diverse economic was appropriate for the space, as of of the Plan. base which protects the region from the November 4, 2014. Evercore will continue to serve as effects of wide swings in the economy. The Qualified Independent Fiduciary Independent Fiduciary to the Plan CBRE also notes that the Pennsylvania following the Contribution of the LLC Property lies in Bethlehem, which is the 20. For the purposes of the Covered Interests to the Plan. In this regard, most populous city in the Lehigh Transactions, the Trustees have retained Evercore will: (a) Review, negotiate, and Valley, and that the long-term trends of Evercore Trust Company (Evercore) to approve the terms and conditions of serve as the Independent Fiduciary for the region should exert positive such Covered Transactions; (b) ensure, the Plan. Evercore represents that it has influences on the Property’s value. for purposes of the Contribution, that provided independent fiduciary services CBRE states that modern warehouse/ the Appraisal Reports of the Properties to employee benefit plans since 1987, distribution facilities, like the are consistent with sound principles of and that it has extensive experience in Pennsylvania Property, are a desirable valuation, and that the LLC interests are making and evaluating investment commodity in the current marketplace. valued at fair market value as of the date decisions and with transactions As explained by CBRE, this desirability of the Contribution, as determined by implicating the prohibited transaction is due to the general versatility of such the the Independent Appraiser; (c) provisions of the Act. Evercore also facilities and a heightened demand for review and examine all aspects of the represents that it has significant just-in-time delivery of products. CBRE Properties and the LLC Interests under also emphasizes that warehouse/ experience with the management and the provisions of the Transfer distribution facilities are generally disposition of Plan assets and Agreement, and have the right to perceived to be a relatively stable asset transactions involving real estate. terminate such agreement on behalf of class. In its Engagement Letter, Evercore Pursuant to analysis based upon the represents that it is independent of and the Plan by providing appropriate Sales Comparison Approach and unrelated to ABARTA, and that it does written notice to ABARTA; (d) monitor Income Capitalization Approach, CBRE not directly or indirectly control, is not and enforce the Plan’s rights and concluded that the fair market value of controlled by, and is not under common interests with respect to the Properties the Pennsylvania Property was control with ABARTA. Evercore also under the terms of the Leases, the Lease $4,400,000 as of November 7, 2014, in represents that it will not directly or Renewals, the Make Whole Obligation, an appraisal report dated November 10, indirectly receive any compensation or the Indemnification, and the Right of 2014. In addition, within its Income other consideration for its own account First Offer, and any other agreements Capitalization analysis of the in connection with the Covered regarding the Properties or the LLCs; (e) Pennsylvania Property, CBRE completed Transactions, except for fees received in propose, negotiate, and decide whether a market rent analysis and estimated connection with its duties as to enter into any agreements on behalf that a base rental amount of $3.25 per Independent Fiduciary. Further, of the Plan to amend the Leases; (f) square foot, or $379,441 per year was Evercore represents that its annual evaluate and decide whether to grant appropriate for the space. compensation received as Independent requests for alterations to the Properties, Fiduciary has been less than 0.5% of its to the extent that such alterations New York Property Appraisal Report annual revenues in each of the years it would: (i) Diminish the fair market 19. In the New York Property has been working on this engagement. value or remaining useful life of the Appraisal Report, CBRE describes the Evercore states that it will perform the Properties; (ii) affect the structure or New York Property as a 9.05 acre parcel following duties as Independent systems of any building existing on the of land improved by two adjacent Fiduciary of the Plan: (a) Determine Properties, or (iii) effect an expansion of warehouse buildings which cover a whether the Covered Transactions are in any building existing on the Properties; combined 107,250 square feet of space. the interest of the Plan and its (g) ensure compliance with all of the CBRE notes that the structures are in participants and beneficiaries; (b) terms of the Leases throughout the average overall condition and that there negotiate the terms and conditions of initial term of such Leases and are no known factors that impact their the Covered Transactions on behalf of throughout the duration of any renewal marketability. CBRE determined that the the Plan, including the Transfer of such Leases; (h) arrange for appraisals New York Property’s location in the Agreements, the Leases, the Lease of the Properties as may be necessary to Town of Tonawanda in Erie County, Renewals, the Make Whole Obligation, satisfy the Plan’s responsibilities under New York is suitable for the Property’s the Indemnification, and the Right of ERISA and the terms of this exemption; current industrial use. In the Appraisal First Offer thereunder, and other (i) manage the disposition of the Report, CBRE notes that the New York documents which Evercore, together Properties or the LLC Interests in Property’s location places it in a stable with its legal counsel, deems necessary connection with the Right of First Offer, industrial market, within an extensive and in the Plan’s interest to proceed and ensure that the Plan does not transportation network near the United with the proposed transactions; (c) transfer any portion of its LLC Interests States-Canada border. determine whether and on what terms to a party in interest, such as ABARTA Pursuant to analysis based upon the the Plan should agree to the Covered or the Tenants; (j) determine whether Sales Comparison Approach and the Transactions; (d) determine whether the the continued ownership of the LLC Income Capitalization Approach, CBRE Plan will enter into the Covered Interests or the Properties is in the concluded that the fair market value of Transactions; (e) determine, together interests of the Plan’s participants and the New York Property was $2,500,000, with the Independent Appraiser, the fair beneficiaries and whether, when and on as of November 3, 2014, in an Appraisal market value of the Properties to be what terms to seek prudently to sell one Report dated November 4, 2014. In contributed to the Plan, as well as the or both of the LLCs or to cause the addition, within its Income fair market rental values of the respective LLCs to sell one or both of Capitalization analysis of the New York Properties under the Leases; and (e) the Properties; (k) negotiate the terms Property, CBRE completed a market rent prepare a written report for submission and conditions of, and consummate analysis and estimated that a base rental to the Department in connection with such sale and disposition, in the event

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such fiduciary determines to sell one or Evercore asserts that the terms of the Environmental Assessments of the both of the LLCs or to cause the Covered Transactions, as set forth in the Properties respective LLCs to sell or otherwise Transfer Agreements and Leases, are 22. The Independent Fiduciary dispose of one or both Properties; and both reasonable and consistent with retained CBRE to render a Limited (l) monitor and enforce compliance with terms negotiated between unrelated Subsurface Environmental Site the conditions of this exemption, if parties in a similar arm’s-length Assessment Reports for the Properties. granted. transaction. Evercore emphasizes that CBRE conducted a Phase II Limited To assist with the negotiation of the its own representatives, as well as Subsurface Environmental Site Leases and Transfer Agreements, expert real estate counsel were directly Assessment of the Pennsylvania Evercore engaged the law firms of involved in negotiations with ABARTA Property on January 5, 2015 (the Pillsbury Winthrop Shaw Pittman LLP regarding the terms of the Transfer Pennsylvania Assessment). To complete (Pillsbury) and Chernow Kapustin LLC Agreements and the Leases. Evercore the Pennsylvania Assessment, CBRE (Chernow). The fees and expenses of also emphasizes that the bondable engaged EnviroProbe Service, Inc., a Evercore, as well as all fees and structure of the Leases is advantageous Pennsylvania-licensed drilling expenses of Pillsbury and Chernow, will to the Plan, as it (a) provides additional contractor, to collect seven soil borings be paid by ABARTA. assurances that rent due under the from the Pennsylvania Property. Once The Independent Fiduciary Report Leases will be paid to the Plan; and (b) collected, CBRE submitted the soil relieves the Plan of any obligation to samples to TestAmerica Laboratories, 21. In the preliminary Independent expend Plan assets on the Properties for Inc. for an analysis of volatile organic Fiduciary Report, Evercore concludes any purpose, including repairs and compounds (VOCs) and semi-volatile that the Covered Transactions are capital improvements. organic compounds (SVOCs). Following prudent and in the interest of the Plan’s Evercore concludes that the Covered its analysis, TestAmerica, Inc. participants and beneficiaries. In Transactions do not place any financial concluded that no concentrations of support of this conclusion, Evercore burden on the Tenants. Evercore notes VOCs or SVOCs were detectable at emphasizes that the Covered that the annual rent of $379,441 under concentrations exceeding the most Transactions will immediately improve the Pennsylvania Property Lease stringent soil standards established by the Plan’s actuarial position, diversify represents only 12.6% of the $3.0 the Pennsylvania Department of the Plan’s overall portfolio of assets, and million average EBITDA generated by Environmental Protection. At the reduce the Plan’s reliance on future cash Coca-Cola Lehigh Valley, and that the conclusion of the Pennsylvania contributions from ABARTA. annual rent of $348,563 under the New Assessment, CBRE notes that no further Specifically, Evercore notes that, York Lease represents only 13.9% of the assessment, remediation, or reporting to absent receipt by the Plan of the LLC $2.5 million average EBITDA generated the state of Pennsylvania is Interests and a $500,000 cash by Coca-Cola Buffalo. recommended. contribution, and assuming the Plan’s On December 29, 2014, CBRE future receipt of required minimum Evercore concludes that the rental performed a Phase I Environmental Site contributions, the Plan’s AFTAP rates and escalator clauses under the Assessment of the New York Property funding percentage would be 80.54% Leases are consistent with the (the New York Assessment). To for Plan year 2016 and 83.14% for Plan Independent Appraiser’s determination complete the New York Assessment, year 2017. Evercore concludes that, with of fair market rental value in the CBRE engaged Nature’s Way the acquisition of the LLC Interests and Properties’ respective markets. In this Environmental, a New York-licensed the $500,000 cash contribution from regard, Evercore asserts that the drilling contractor, to collect five soil ABARTA, the Plan’s projected funding bondable structure of the Leases make borings from the Pennsylvania Property. levels will improve, on a MAP–21/ them more marketable and financeable Once collected, CBRE submitted the soil HAFTA basis, to 83.37% for 2016 and than a standard, non-bondable lease. samples to ESC Lab Sciences, a New 85.27% for 2017. With respect to the New York Lease, York-certified laboratory, for an analysis In further support of this conclusion, Evercore states that the bondable lease of VOCs and SVOCs. Following its Evercore asserts that the Covered structure serves to mitigate the absence analysis, ESC Lab Sciences concluded Transactions will improve the of an escalator clause. that concentrations of both VOCs and diversification of the Plan’s Finally, Evercore concludes that there SVOCs were well below the commercial investments. Evercore emphasizes that is no marketability limitation and industrial soil cleanup objectives the Plan currently holds no real estate, attributable to the LLC Interests, other promulgated by the New York State and that its current investments consist than as provided generally by applicable Department of Environmental entirely of liquid, marketable equity and law. In this regard, Evercore asserts that Conservation. At the conclusion of the fixed income securities. Evercore the Right of First Offer will not impair New York Assessment, CBRE states that explains that the Plan’s ownership and the Plan’s ability to sell the LLC no further assessment, remediation, or leasing of the Properties to creditworthy Interests or the Properties at fair market reporting to the state of New York is tenants will enhance the diversification value. Evercore cites to the fact that the recommended. of its portfolio in view of the low Right of First Offer is exercisable only correlation of returns between real at either: (a) Each Property’s fair market Statutory Findings estate and other asset classes, such as value; or (b) the value of an unsolicited 23. The Applicant represents that the equity and fixed income securities offer from an unrelated party. Evercore Covered Transactions are in which the Plan’s assets are currently also emphasizes that ABARTA has administratively feasible because they invested. Based upon its analysis of the agreed that if it declines to exercise the will be carried out under the Plan’s current investments, Evercore Right of First Offer and the Plan supervision and direction of the concludes that adding real estate proceeds with a sale to an unrelated Independent Fiduciary. The Applicant exposure to the Plan’s asset allocation party, the purchaser will not have any emphasizes that the Independent can be expected to improve the Plan’s Right of First Offer obligation with Fiduciary will represent the Plan in all overall risk adjusted return. respect to ABARTA. aspects of the transactions, including

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with respect to the Contribution of the value of employer real property and period, is less than (D) the fair market LLC Interests, as well as all aspects of employer securities held by the Plan value of such Property (or the LLC the Leases, including the ROFO and any will represent less than 20% of the Interest) at the time of the Contribution, renewal of the Leases. Plan’s assets; plus (E) an amount equal to a 5% The Applicant represents that the (f) As long as the Properties and/or percent rate of return on such Covered Transactions are in the interest LLC Interests are owned by the Plan, the Contributed Value during that period, of the Plan and its participants and Properties will not be altered in any way compounded annually; then the Tenant beneficiaries and are protective of their that would: (i) Diminish their fair will contribute an amount of cash to the rights. In this regard, the Applicant market value or remaining useful life; Plan equal to any such difference, emphasizes that the Contribution, (ii) affect the structure or systems of any within 60 days of the Sale Date or First which is well in excess of ABARTA’s building existing on the Properties; or Calculation Date; minimum required contribution (iii) affect an expansion of any building (n) If the Plan continues to hold a amount, will significantly improve the existing on the Properties, without the Property or LLC Interest during all or a Plan’s funding status, as well as reduce prior written approval of the portion of any of the three consecutive the Plan’s reliance on future cash Independent Fiduciary; Lookback Periods, within 60 days of the contributions from ABARTA. (g) Following the Contribution, the earlier of: (i) A Sale Date; or (ii) a Additionally, the Applicant emphasizes Plan will not transfer a portion of its Subsequent Calculation Date, if (A)(1) that the Plan will receive valuable, ownership interests in the LLCs or in the proceeds received from the fair appreciating real property assets that the Properties to a party in interest to market value sale of a Property (or LLC will produce a steady stream of future the Plan; interest), in the case of a sale, or (2) the (h) The Independent Fiduciary will income for the Plan. current fair market value of the LLC negotiate the terms and conditions of 24. The Applicant also represents interest as of the applicable Subsequent the each Lease and Lease Renewal, and that, in the event the exemption is Calculation Date, in the case in which approve the Plan’s entering into each denied, the Plan and its Participants there has not been a sale, plus (B) any Lease and Lease Renewal, as being in will incur certain hardships. The income generated by the Property the interest of, and protective of, the Applicant asserts that a denial of the during that period, (C) less any expenses Plan; proposed exemption would cause the paid by the Plan during that period Plan to forego the benefit of a voluntary (i) Each Lease and Lease Renewal will remain, at all times, a bondable triple regarding the LLC interest or Property, contribution that is in excess of the is less than (D) the fair market value of minimum required amount, and as net lease, such that all costs attributable to a Property (including, among other such LLC Interest as of the first day of such, would leave the Plan at a less- the applicable Lookback Period, plus (E) advantageous funding level. The things, taxes, insurance, utilities, and non-capital maintenance, repair, and an amount equal to a 5% percent rate Applicant further represents that a of return on such Contributed Value denial of the proposed exemption capital improvements) are the responsibility of the Tenant, until the during that period, compounded would deprive the Plan of two annually; then the Tenant will appreciating real property assets which earlier of: (i) The date on which the Property or LLC Interest is first contribute to the Plan an amount of cash produce a steady stream of reliable equal to any such difference, within 60 rental income. transferred to any person or entity that is not wholly-owned by the Plan; (ii) the days of the Sale Date or Subsequent Summary date on which the Plan sells a Calculation Date; (o) The Plan will receive the full 25. In summary, it is represented that controlling interest in the LLC to an amount that the Plan may be due under the Covered Transactions will satisfy entity that is not wholly-owned by the the Make Whole Obligation within 60 the statutory criteria for an exemption Plan; or (iii) the date the Lease or Lease days of the applicable Sale Date, under section 408(a) of the Act because: Renewal terminates by operation of law; (a) The Independent Fiduciary will (k) Any amendment to a Lease or Calculation Date, or Subsequent negotiate the terms and conditions of Lease Renewal will be negotiated and Calculation Date, as verified by the the Contribution, and approve the approved by the Independent Fiduciary; Independent Fiduciary; Contribution as being in the interest of however, in no event will any (p) In connection with each Lease and the Plan; amendment be inconsistent with the Lease Renewal, and as set forth in (b) The LLC Interests will be terms of this exemption, if granted; writing therein, the applicable Tenant contributed to the Plan at their current (l) For each Lease Renewal, all will indemnify, defend upon request, fair market value, as determined by the provisions of the Lease on which the and hold the Plan harmless from any, Independent Fiduciary following its Lease Renewal is based, with the and against all, losses, penalties and review of the Appraisal Report that has exception of the specific rent amount court costs related to: (i) The Tenant’s been prepared by the Independent and any escalator provision, will remain use, repair, management, lease, Appraiser; in effect; sublease, maintenance or operation of a (c) On the date of the Contribution, (m) After the Contribution, as of the Property, (ii) any violation of any the aggregate contributed value of the earlier of: (i) A Sale Date; or (ii) a First applicable environmental laws, the LLC Interests will be no less than the Calculation Date, if (A)(1) the current ADA, and other health and/or safety current fair market value of the fair market value of a Property (or LLC laws; and (iii) any default by the Tenant Properties underlying the LLC Interests, interest), in the case of a sale, or (2) the under the Lease or Lease Renewal; as verified by the Independent current fair market value of the Property (q) Any amount owed the Plan in Fiduciary; (or the LLC interest) as of the First connection with a Tenant’s (d) On the date of the Contribution, Calculation Date, in the case in which Indemnification of the Plan, as ABARTA will contribute to the Plan a there has not been a sale, plus (B) any described in the preceding paragraph, cash amount that is no less than income generated by the Property will be negotiated and approved by the $500,000; during that period, less (C) any expenses Independent Fiduciary, and will be paid (e) Immediately following the attributable to the Property (or the LLC to the Plan within the timeframe set Contribution, the aggregate fair market Interest) paid by the Plan during that forth by the Independent Fiduciary;

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(r) During the term of the Lease and when negotiated at arm’s-length with 406(b)(2), and 407(a)(1)(A) of the Act any Lease Renewal, the Independent unrelated third parties. and the sanctions resulting from the Fiduciary will be solely responsible for application of section 4975 of the Code, Notice to Interested Persons determining whether, when, and under by reason of section 4975(c)(1)(E) of the what terms the Plan may prudently sell The persons who may be interested in Code,9 shall not apply to the acquisition one or both of: (i) The LLCs; or (ii) the the publication in the Federal Register and holding by the Savings Plan of Properties; of the Notice of Proposed Exemption certain subscription rights (the Rights) (s) During the term of the Lease and (the Notice) include all individuals who to purchase shares of common stock (the any Lease Renewal, the Independent are participants in the Plan. It is SC Stock) in Sears Canada Inc. (Sears Fiduciary will approve any sale by the represented that such interested persons Canada) in connection with an offering Plan of one or both of: (i) The will be notified of the publication of the (the Offering) by Sears Holdings Properties; or (ii) the LLC, as being in Notice by first class mail to such Corporation (Holdings) of shares of SC the interest of, and protective of, the interested person’s last known address Stock, provided that the conditions as Plan; within fifteen (15) days of publication of set forth, below, in Section II of this (t) The Independent Fiduciary will the Notice in the Federal Register. Such proposed exemption were satisfied for not implement the Right of First Offer mailing will contain a copy of the the duration of the acquisition and unless the Independent Fiduciary has Notice, as it appears in the Federal holding; and first negotiated the terms and conditions Register on the date of publication, plus (b) If the proposed exemption is of a proposed sale of an LLC Interest (or a copy of the Supplemental Statement, granted, the restrictions of sections a Property) to a party that is unrelated as required, pursuant to 29 CFR 406(a)(1)(E), 406(a)(2), 406(b)(1), to ABARTA or any of its affiliates; 2570.43(b)(2), which will advise all 406(b)(2), and 407(a)(1)(A) of the Act 10 interested persons of their right to (u) Any sale of an LLC Interest or shall not apply to the acquisition and comment on and/or to request a hearing. Property to ABARTA pursuant to the holding of the Rights by the PR Plan in All written comments or hearing Right of First Offer, will equal the connection with the Offering of the SC requests must be received by the greater of: (1) The price negotiated by Stock by Holdings, provided that the Department from interested persons the Independent Fiduciary, as between conditions as set forth in Section II of within 45 days of the publication of this the Plan and the party that is unrelated this proposed exemption were satisfied proposed exemption in the Federal to ABARTA; or (2) the current fair for the duration of the acquisition and Register. holding. market value of the Property, as All comments will be made available determined by the Independent to the public. Warning: Do not include Section II. Conditions Appraiser; any personally identifiable information (a) The receipt of the Rights by the (v) If ABARTA does not purchase the (such as name, address, or other contact Property or LLC Interest under the same Plans occurred in connection with the information) or confidential business Offering, in which all shareholders of terms as the terms associated with the information that you do not want Unrelated Proposed Sale, the Plan may the common stock of Holdings publicly disclosed. All comments may (Holdings Stock), including the Plans, sell the Property or LLC Interest to the be posted on the Internet and can be unrelated third party within 360 days were treated in the same manner; retrieved by most Internet search (b) The acquisition of the Rights by without triggering a new Right of First engines. Offer; the Plans resulted from an independent (w) The Independent Fiduciary will FOR FURTHER INFORMATION CONTACT: Mr. act of Holdings, as a corporate entity; represent the interests of the Plan for all Joseph Brennan of the Department at (c) Each shareholder of Holdings purposes with respect to the Covered (202) 693–8456. (This is not a toll-free Stock, including each of the Plans, Transactions; number.) received the same proportionate number (x) The Independent Fiduciary will: of Rights based on the number of shares Sears Holdings 401(k) Savings Plan (the of Holdings Stock held by each such (i) Review, negotiate and approve the Savings Plan) and the Sears Holdings terms and conditions of each Covered shareholder; Puerto Rico Savings Plan (the PR Plan) (d) All decisions with regard to the Transaction; (ii) review and approve the (collectively, the Plans), Located in holding and disposition of the Rights by terms of the Transfer Agreement that Hoffman Estates, IL the Plans were made by a qualified evidences the Contribution; (iii) monitor [Exemption Application Nos. D–11846 and independent fiduciary (the Independent and enforce the Plan’s rights and D–11847] Fiduciary) within the meaning of 29 interests with respect to the Properties; CFR 2570.31(j); 11 (iv) monitor ABARTA’s compliance Proposed Exemption with the terms of this exemption, The Department is considering 9 For purposes of this proposed exemption, unless including all obligations set forth under granting an exemption under the indicated otherwise, references to section 406 of the the Leases; and (v) take all steps that are authority of section 408(a) of the Act should be read to refer as well to the necessary and proper to protect the Plan Employee Retirement Income Security corresponding provisions of section 4975 of the in the event of any non-compliance by Code. Act of 1974, as amended (ERISA or the 10 The Applicant represents that there is no ABARTA; Act), and section 4975(c)(2) of the jurisdiction under Title II of the Act with respect (y) The Plan will does not pay any Internal Revenue Code of 1986, as to the PR Plan. Accordingly, the Department is not real estate fees, commissions, costs or amended (the Code), and in accordance providing any exemptive relief from section 4975(c)(1)(E) of the Code for the acquisition and other expenses in connection with the with the procedures set forth in 29 CFR proposed transactions, including any holding of the Rights by the PR Plan. part 2570, subpart B (76 FR 66637, 11 29 CFR 2570.31(j) defines a ‘‘qualified fees that are currently charged, or any 66644, October 27, 2011). independent fiduciary,’’ in relevant part, to mean fees which accrue in the future; and ‘‘any individual or entity with appropriate training, (z) The terms and conditions of the Section I. Transactions experience, and facilities to act on behalf of the plan regarding the exemption transaction in Covered Transactions will be no less (a) If the proposed exemption is accordance with the fiduciary duties and favorable to the Plan than those granted, the restrictions of sections responsibilities prescribed by ERISA, that is obtainable under similar circumstances 406(a)(1)(E), 406(a)(2), 406(b)(1), Continued

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(e) The Independent Fiduciary through Kmart and Sears Roebuck as market value of the total assets of the determined that it would be in the well as full-line and specialty retail Savings Plan invested in Holdings Stock interest of the Plans to sell all of the stores in Canada operating through was two percent, which amount Rights received in the Offering by the Sears Canada, Inc. (Sears Canada). As of constituted approximately one percent Plans in blind transactions on the October 15, 2015, Holdings owned of the 106 million shares of Holdings NASDAQ Global Select Market; approximately 51% of Sears Canada. Stock issued and outstanding. (f) No brokerage fees, commissions, 2. Common stock issued by Holdings The Savings Plan is administered by subscription fees, or other charges were (Holdings Stock), par value $0.01 per the Sears Holding Corporation paid by the Plans with respect to the share, is publicly-traded on the Administrative Committee (the acquisition and holding of the Rights, or NASDAQ Global Select market under Administrative Committee), whose were paid to any affiliate of Holdings, the symbol, ‘‘SHLD.’’ As of October 16, members are officers and/or employees Sears Canada, or the Independent 2014, there were 12,293 shareholders of of SHMC. The Sears Holdings Fiduciary, with respect to the sale of the record and approximately 106,484,024 Corporation Investment Committee (the Rights. shares of Holdings Stock issued and Investment Committee), whose members outstanding. Section III. Definitions are officers and/or employees of SHMC, ESL Investments, Inc. and its affiliates has authority over decisions relating to (a) The term ‘‘affiliate’’ of a person (ESL), including Edward S. Lampert the investment of the Savings Plan’s includes: (Mr. Lampert) owned approximately assets. (1) Any person directly or indirectly 48.5 percent of the Holdings Stock, 5. The PR Plan was established by through one or more intermediaries, issued and outstanding, as of October Holdings for employees of Sears controlling, controlled by, or under 16, 2014. Mr. Lampert is the Chairman Roebuck de Puerto Rico (Sears Roebuck common control with such person; of the Board of Directors and Chief PR) who reside in the Commonwealth of (2) Any officer, director, partner, Executive Officer of Holdings. He is also Puerto Rico. The Applicant represents employee, or relative, as defined in the Chairman and Chief Executive that the fiduciaries of the PR Plan have section 3(15) of the Act, of such person; Officer of ESL. not made an election under section and 3. Holdings and certain of its affiliates (3) Any corporation or partnership of 1022(i)(2) of the Act, whereby such plan sponsor the Sears Holdings Savings Plan would be treated as a trust created and which such person is an officer, (the Savings Plan) and the Sears director, partner, or employee. organized in the United States for Holdings Puerto Rico Savings Plan (the purposes of tax qualification under (c) The term ‘‘control’’ means the PR Plan) (collectively the Plans). Each power to exercise a controlling section 401(a) of the Code. Therefore, Plan is a participant-directed account according to the Applicant, there is no influence over the management or plan that permits participants to invest policies of a person other than an jurisdiction under Title II of the Act. in equity, fixed income, balanced funds, There is, however, jurisdiction under individual. and an investment fund (the Stock Effective Date: This proposed Title I of the Act. Fund) comprised of Holdings Stock. The exemption, if granted, will be effective As of December 31, 2014, there were Plans are designed and operated to for the period beginning October 16, 7,550 participants in the PR Plan. As of comply with the requirements of section 2014, and ending November 7, 2014 (the the Record Date there were 1,765 404(c) of the Act. The Savings Plan and Offering Period). participants in the PR Plan with account the PR Plan assets are held together balances, and the PR Plan’s share of the Summary of Facts and Representations within the Sears Holdings 401(k) total assets of the Master Trust was Savings Plan Master Trust (the Master Background $17,023,422. Also, as of the Record Trust), which also holds the Stock Fund Date, the PR Plan’s allocable share of the 1. Sears Holdings Corporation and consequently, shares of Holdings Holdings Stock held in the Stock Fund (Holdings), is the parent company of 12 Stock. The Plans’ participants, under the Master Trust was 46,880 Kmart and Sears, Roebuck, & Co. (Sears therefore, indirectly own shares of shares, and the approximate percentage Roebuck). Holdings was formed as a Holdings Stock, through investments in of the fair market value of the total Delaware corporation in 2004 in the Stock Fund. assets of the PR Plan invested in connection with the merger of Kmart 4. Sears Roebuck and all of its wholly- Holdings Stock was eight percent, and Sears Roebuck on March 24, 2005. owned (direct and indirect) subsidiaries which amount constituted less than one In August 2014, Sears Holdings and Sears Holdings Management tenth of one percent of the 106 million operated a national network of stores Corporation (SHMC), a wholly-owned shares of Holdings Stock issued and with 1,870 full-line and specialty retail subsidiary of Holdings, with respect to outstanding. stores in the United States operating certain employees, have adopted the The PR Plan is administered by the Savings Plan and are employers under Administrative Committee, and the independent of and unrelated to any party in that Plan. interest engaging in the exemption transaction and As of October 16, 2014 (the Record Investment Committee makes its affiliates;’’ in general, a fiduciary is presumed to investment decisions for the PR Plan. be independent ‘‘if the revenues it receives or is Date), there were 60,260 participants in the Savings Plan, and the Savings Plan’s Banco Popular de Puerto Rico serves as projected to receive, within the current federal the trustee of the PR Plan. income tax year from parties in interest (and their share of the total assets of the Master affiliates) [with respect] to the transaction are not Trust was $2,825,371,014. Also, as of Sears Canada more than 2% of such fiduciary’s annual revenues the Record Date, the Savings Plan’s based upon its prior income tax year. Although the 6. Sears Canada was incorporated in allocable share of the Holdings Stock presumption does not apply when the Canada in 1952 and its headquarters are aforementioned percentage exceeds 2%, a fiduciary held in the Stock Fund under the Master in Toronto, Ontario. It is a multi-format nonetheless may be considered independent based Trust was 1,515,803 shares, and the upon other facts and circumstances provided that retailer and, as of October 14, 2014, had approximate percentage of the fair it receives or is projected to receive revenues that a total network of 113 full-line are not more than 5% within the current federal income tax year from parties in interest (and their 12 State Street Bank and Trust Company serves as department stores, 307 specialty stores, affiliates) [with respect] to the transaction based the master trustee and custodian for the Master 1,378 catalogue merchandise pick-up upon its prior income tax year.’’ Trust. locations, and 96 Sears Travel offices.

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As of October 16, 2014, approximately purchased by the exercise of the Rights. Following the Offering, Holdings’ 51% of SC Stock was held by Holdings. Fractional shares or cash in lieu of interest in Sears Canada was reduced to Prior to the Offering, SC Stock traded on fractional shares were not issued in approximately 11.7 percent. the Canadian Toronto Stock Exchange connection with the Offering. Accordingly, the Applicant states that (TSX) under the symbol ‘‘SCC’’ and, as 10. With regard to the sale of the following the closing of the Offering, of October 8, 2014, it was also listed and Rights, the Applicant represents that the Sears Canada became independent of trading on the U.S. NASDAQ under the Rights were transferable. Further, the Holdings. The Applicant represents that symbol ‘‘SRSC.’’ Applicant represents that the Rights the gross proceeds payable to and received by Holdings from the sale of The Offering were traded on the NASDAQ Global Select Market under the symbol, the SC Stock pursuant to the Offering, 7. On October 2, 2014, Holdings ‘‘SHLDR.’’ The allocation of the Rights net of any selling expenses, was announced its intent to conduct a rights to shareholders was handled by approximately $380 million. offering to shareholders (the Offering) as Depository Trust Company (DTC). The The Independent Fiduciary a means of disposing of a non-core asset Applicant represents that the public (its Sears Canada holdings) and raising trading of Rights (the Trading Period) 13. Fiduciary Counselors Inc. (FCI) substantial cash proceeds for Holdings. began on October 16, 2014, and was retained by the Investment Furthermore, in the opinion of continued until the close of business on Committee pursuant to an agreement Holdings, the Offering gave November 4, 2014, the third business (the Agreement), dated October 16, shareholders of Holdings Stock the day prior to the close of the Offering. 2014, to act as the independent fiduciary on behalf of the Plans, in ability to avoid dilution by retaining The Applicant further represents that connection with the Offering and an their ownership percentage in Holdings this deadline applied uniformly to all exemption application. Pursuant to the and in Sears Canada. On October 15, holders of the Rights. 2014, Holdings issued the final terms of the Agreement, FCI’s 11. While the Plans generally permit prospectus describing the Offering to responsibilities were to determine participants to direct the investment of shareholders of record, including the whether or not and when to exercise or their own accounts, including their Plans, as of the Record Date. sell the Rights received by each Plan in Under the terms of the Offering, on investments in Holdings Stock, all the Offering.15 October 16, 2014, all shareholders of decisions regarding the holding and The Applicant represents that hiring record of Holdings Stock, including the disposition of the Rights by each Plan an independent fiduciary to manage the Plans, automatically received one Right were made, in accordance with the Plan holding and disposition of the Rights for each whole share of Holdings Stock provisions, by a qualified independent was appropriate in this case for the fiduciary acting solely in the interest of following reasons: (i) There would have held by each such shareholder. The 14 Applicant represents that the Master Plan participants. Participants in the been a significant cost to developing Trust (the Trust) acquired 1,562,683 Plans who were invested in Holdings and implementing a process under each Rights through the Offering. Stock as of the Record Date were Plan to administer a pass-through of the 8. Each Right permitted the holder notified of the Offering, the engagement Rights to participants; (ii) It was not thereof to purchase 0.375643 shares of of the independent fiduciary, the fact practicable to initiate and implement a SC Stock from Holdings at a that the Rights would be held in the pass-through of the Rights to subscription price of $9.50 per whole Stock Fund, that the independent participants given the limited notice share.13 Each Right also contained an fiduciary would determine whether the provided to shareholders of the Offering over-subscription privilege permitting Rights should be exercised or sold, and and the short subscription period (16 the holder to subscribe for additional the means by which a participant could days), because such process would have shares of SC Stock, up to the number of obtain more information. Holdings also included establishment of a ‘‘rights shares of SC Stock that were not communicated generally with fund’’ and a Sears Canada fund within subscribed for by the other holders of employees regarding the Offering and each Plan, the design and testing of the Rights. The Plans were not eligible with the public through public releases procedures for allocating the Rights to participate in the over-subscription at www.searsholdings.com. among participant accounts, soliciting privilege because a qualified, 12. The Offering closed at 5 p.m. participant directions on the exercise or independent fiduciary acting on behalf eastern standard time on November 7, sale of the Rights and identifying the of the Plans, sold the Rights received by 2014. The Applicant represents that source of funding (e.g., which the Plans, as discussed more fully 40,000,000 shares of SC Stock were investment account is to be liquidated) below. subscribed for by shareholders or their for each participant who chose to 9. All shareholders of Holdings Stock transferees at a price of $9.50 per whole exercise the Rights, and the short held the Rights until such Rights share. During the Trading Period, the Offering period meant that there would expired, were exercised, or were sold. price of the SC Stock on the NASDAQ have been insufficient time to With regard to the exercise of the Rights, ranged from $9.06 to $10.00 with a adequately educate participants the Applicant represents that the Rights volume-weighted average price (VWAP) regarding their rights and obligations; could only be exercised in whole of $9.75. (iii) There would have been a loss of numbers. Each shareholder of Holdings value that participants might otherwise Stock needed to have at least three 14 Each of the Plans was amended to: (i) Permit have gained, because participants’ Rights to purchase a share of SC Stock, the Plan to temporarily acquire and hold the Rights unfamiliarity with rights offerings as because only whole shares could be (and any Sears Canada stock acquired through the well as general participant inertia would exercise of the Rights) pending their orderly have resulted in a significant percentage disposition; (ii) confirm that participants were not 13 The subscription price was determined by entitled to direct the holding, exercise, sale, or other of participants allowing their Rights to Holdings and is the U.S. dollar equivalent of the disposition of the Rights received by the Plan; and closing price of Sears Canada Stock on the TSX on (iii) authorize the designated independent fiduciary 15 Because the Rights were automatically issued September 26, 2014, the last trading day before to exercise discretionary authority with respect to to all shareholders including the Plans and there Holdings requested Sears Canada’s cooperation the holding, exercise, sale, or other disposition of was no option to decline them, the independent with the filing of a prospectus qualifying the shares the Rights and any shares of Sears Canada stock fiduciary was not asked to determine whether the deliverable upon exercise of the Rights. acquired through the exercise of the Rights. Plans should acquire the Rights.

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expire without selling or exercising available information and information paid by the Plans with respect to the them; (iv) It was not in the interest of provided by Holdings. acquisition and holding of the Rights, or participants to require the Plans to offer As detailed in the IF Report, with were paid to any broker affiliated with and hold for participant investment a regard to the Offering, FCI considered FCI, Holdings, or Sears Canada in single stock (SC Stock) that had not the following four options: (i) Continue connection with the sale of the Rights. been selected by the plan fiduciary as an holding the Rights within the Stock In this regard, FCI represents that it investment option appropriate for the Fund; (ii) Exercising all of the Rights selected State Street Global Markets as Plan; and (v) The Rights are most and acquiring SC Stock; (iii) Selling a the broker for the sale of the Plans’ appropriately viewed as a non-cash portion of the Rights and using the Rights, based on FCI’s confidence in the dividend payable to owners of Holdings proceeds to exercise the remaining broker’s execution ability and an Stock such as the Plans, so that the Rights to acquire SC Stock; or (iv) attractive fee schedule of 0.005 cents per fiduciary of the Stock Fund is the Selling all of the Rights on the NASDAQ Right traded. In connection with the appropriate person to manage the Global Select Market at the prevailing sale of the Rights, the Plans paid ‘‘proceeds’’ of the Plans’ investment in market price. Acting as the independent $7,813.42 in commissions to Holdings Stock. The Applicant fiduciary on behalf of the Plans, FCI independent, third parties and $4.66 in represents that, in this case, the chose to sell all of the Rights on the SEC fees. independent fiduciary appointed to NASDAQ Global Select Market. Requested Relief manage the Rights took responsibility In determining to sell all of the Plans’ for realizing the value in the Rights by Rights, FCI represents that the proceeds 16. The Applicant represents that the selling them. The cash proceeds of that from the sale would be invested in subject transactions have already been sale were then reinvested in Holdings Holdings Stock, as per the governing consummated. In this regard, the Plans Stock pursuant to the terms of the plan. documents of the Stock Fund. As acquired the Rights pursuant to the The Applicant represents that FCI is described in the IF Report, FCI Offering, and held such Rights until the qualified to serve as the independent determined that the benefits of selling Rights were sold by the independent fiduciary for the Plans in connection the Rights included simplicity, lower fiduciary. The Applicant states that, with the Offering, because FCI is a transaction costs, and less exposure to because there was insufficient time registered investment adviser under the risk than the options that involved between the dates when the Plans Investment Advisers Act of 1940, and exercising any of the Rights. According acquired the Rights and when such FCI is an independent company whose to FCI, this option allowed the Plans to Rights were sold, to apply for and be primary focus is providing independent realize the benefits of the Rights in a granted an exemption, Holdings was fiduciary services for employee benefit timely manner while maintaining required to request retroactive relief, plans. FCI has served as an independent maximum exposure to shares of Sears effective as of October 16, 2014, the fiduciary to employee benefit plans Holdings within the Stock Fund, Record Date. since 2001. consistent with the purpose of the Stock 17. Section 406(a)(1)(E) of the Act In its ‘‘Report of Independent Fund. FCI understood that the Plans prohibits a fiduciary from causing a Fiduciary Regarding Sears Canada would incur some transactions costs plan to engage in a transaction, if he Rights Offering,’’ dated February 23, through this option, estimated at $0.015 knows or should know that such 2015 (The IF Report), FCI represents and to $0.05 per Right traded. Accordingly, transaction constitutes a direct or warrants that it is independent and FCI concluded that this sale of the indirect acquisition, on behalf of a plan, unrelated to Holdings. FCI further Rights was in the interest of the Plans of any employer security or employer represents that it did not directly or and the Plans’ participants and real property in violation of section indirectly receive any compensation or beneficiaries and was protective of such 407(a). Section 406(a)(2) of the Act other consideration for its own account participants and beneficiaries of the prohibits a fiduciary who has authority in connection with the Offering, except Plans. or discretion to control or manage the compensation from Holdings for 14. The Trading Period ended on assets of a plan from permitting a plan performing services described in the November 4, 2014. According to the IF to hold any employer security or Agreement. The percentage of FCI’s Report, over the sixteen-day period that employer real property if he knows or 2014 revenue derived from any party in the Rights traded on the NASDAQ, the should know that holding such security interest involved in the subject volume-weighted average price for the or real property violates section 407(a). transaction or its affiliates was less than 58,546,218 Rights traded was $0.1239 The Applicant represents that because five percent of FCI’s 2013 revenue. according to data reported by the Rights are non-qualifying employer FCI represents further that it Bloomberg. The IF Report provides that securities, the acquisition and holding understands and acknowledges its FCI completed the sale of the Plans’ of the Rights violated sections duties and responsibilities under the 1,562,683 Rights in blind transactions 406(a)(1)(E), 406(a)(2), and 407(a) of the Act in acting as a fiduciary on behalf of on the NASDAQ Global Select Market Act. the Plans in connection with the between October 22 and October 31, Furthermore, section 406(b)(1) of the Offering. In the IF Report, FCI 2014, realizing an average selling price Act prohibits a fiduciary from dealing represents that it conducted a due of $0.1333 per Right. with the assets of a plan in his own diligence process in evaluating the According to the Applicant, as a interest or for his own account. Section Offering on behalf of the Plans. This result of the Rights sale, the total net 406(b)(2) of the Act prohibits a process included numerous discussions proceeds generated for the Savings Plan fiduciary, in his individual or in any and correspondence with and the PR Plan was $200,557.36. These other capacity, from acting in any representatives of the Plans and proceeds were credited to each Plan and transaction involving the plan on behalf Holdings, Holdings’ counsel, broker- the unit value of each participant’s of a party (or representing a party) dealers and representatives of the Plans’ account balance reflected the addition whose interests are adverse to the trustee enabling FCI to better of assets credited to the Plan. interests of the plan or the interests of understand a number of important 15. The Applicant represents that no its participants or beneficiaries. The elements related to the Offering. In brokerage fees, commissions, Applicant states that, although Holdings addition, FCI reviewed publicly subscription fees, or other charges were retained an independent fiduciary to

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represent the Plans in connection with Summary your name and other contact the disposition of the Rights, by causing 21. In summary, the Applicant information in the body of your the participation of the Plans in the represents that the proposed exemption comment, but DO NOT submit Offering, Holdings may have dealt with satisfies the statutory criteria for an information that you consider to be the assets of the Plans for its own exemption under section 408(a) of the confidential, or otherwise protected account, and also may have acted in a Act and section 4975(c)(2) of the Code (such as Social Security number or an transaction on behalf of itself and the for the reasons stated above and for the unlisted phone number) or confidential Plans. following reasons: business information that you do not want publicly disclosed. All comments Therefore, the Applicant requests an (a) The receipt of the Rights by the may be posted on the Internet and can administrative exemption from sections Plans occurred in connection with the be retrieved by most Internet search 406(a)(1)(E), 406(a)(2), 406(b)(1), Offering, in which all shareholders of engines. 406(b)(2), and 407(a)(1)(A) of the Act Holdings Stock, including the Plans, and section 4975 of the Code by reason were treated in the same manner; FOR FURTHER INFORMATION CONTACT: of 4975(c)(1)(E) of the Code, with regard (b) The acquisition of the Rights by Scott Ness of the Department, telephone to the Savings Plan, and from sections the Plans resulted from an independent (202) 693–8561. (This is not a toll-free 406(a)(1)(E), 406(a)(2), 406(b)(1), act of Holdings, as a corporate entity, number.) 406(b)(2), and 407(a)(1)(A) of the Act and without any participation on the Sears Holdings 401(k) Savings Plan (the with regard to the PR Plan.16 part of the Plans; (c) Each shareholder of Holdings Savings Plan) and the Sears Holdings Statutory Findings Stock, including each of the Plans, Puerto Rico Savings Plan (the PR Plan) received the same proportionate number (collectively, the Plans), Located in 18. The Applicant represents that the of Rights based on the number of shares Hoffman Estates, IL requested exemption is administratively of Holdings Stock held by each such feasible because the acquisition, [Exemption Application Nos. D–11851 and shareholder; D–11852] holding, and sale of the Rights by the (d) All decisions with regard to the Plans was a one-time transaction which holding and disposition of the Rights by Proposed Exemption will not require continued monitoring the Plans were made by a qualified, The Department is considering or other involvement by the independent fiduciary within the granting an exemption under the Department. meaning of 29 CFR 2570.31(j); authority of section 408(a) of the 19. The Applicant represents that the (e) The independent fiduciary Employee Retirement Income Security transactions which are the subject of determined that it would be in the Act of 1974, as amended (ERISA or the this proposed exemption are in the interest of the Plans to sell all of the Act), and section 4975(c)(2) of the interest of the Plans, because the Rights Rights received in the Offering by the Internal Revenue Code of 1986, as were automatically issued at no cost to Plans in blind transactions on the amended (the Code), and in accordance all shareholders of Holdings Stock as of NASDAQ Global Select Market; and with the procedures set forth in 29 CFR a specified Record Date, including the (f) No brokerage fees, commissions, part 2570, subpart B (76 FR 66637, Plans. The Plans were then able to subscription fees, or other charges were 66644, October 27, 2011). realize value through their sale. paid by the Plans with respect to the acquisition and holding of the Rights, or Section I. Transactions 20. The Applicant represents that the were paid to any affiliate of Holdings, (a) The restrictions of sections transactions were protective of the Plans Sears Canada, or the independent and their respective participants and 406(a)(1)(E), 406(a)(2), 406(b)(1), fiduciary with respect to the sale of the 406(b)(2), and 407(a)(1)(A) of the Act beneficiaries, as the Plans obtained the Rights. Rights as a result of an independent act and the sanctions resulting from the of Holdings as a corporate entity. In Notice to Interested Persons application of section 4975 of the Code, by reason of section 4975(c)(1)(E) of the addition, the acquisition of the Rights Notice of the proposed exemption Code,17 shall not apply to the by the Plans occurred on the same terms will be given to all interested persons acquisition and holding of certain made available to other holders of within 22 days of the publication of the subscription rights (the Rights) issued Holdings Stock and the Plans received notice of proposed exemption in the by Sears Holdings Corporation the same proportionate number of Federal Register, by first class U.S. mail (Holdings) by the Savings Plan in Rights as other owners of Holdings to the last known address of all such connection with an offering (the Stock. The Plans were also protected in individuals. Such notice will contain a Offering) by Holdings of unsecured that all decisions regarding the holding copy of the notice of proposed obligations issued by Holdings (Notes) and disposition of the Rights by the exemption, as published in the Federal and warrants to purchase the common Plans were made, in accordance with Register, and a supplemental statement, stock of Holdings (Warrants)(together Plan provisions, by the independent as required pursuant to 29 CFR referred to as Units), provided that the fiduciary. Furthermore, the independent 2570.43(a)(2). The supplemental conditions as set forth, below, in fiduciary determined that it would be in statement will inform interested persons Section II of this proposed exemption the interest of the Plans to sell all of the of their right to comment on and to were satisfied for the duration of the Rights received in the Offering by the request a hearing with respect to the acquisition and holding; and Plans in blind transactions on the pending exemption. Written comments NASDAQ Global Select Market. and hearing requests are due within 52 (b) The restrictions of sections days of the publication of the notice of 406(a)(1)(E), 406(a)(2), 406(b)(1), 16 The Applicant represents that there is no proposed exemption in the Federal jurisdiction under Title II of the Act with respect Register. All comments will be made 17 For purposes of this proposed exemption, to the PR Plan. Accordingly, the Department is not unless indicated otherwise, references to section providing any exemptive relief from section available to the public. 406 of the Act should be read to refer as well to 4975(c)(1)(E) of the Code for the acquisition and Warning: If you submit a comment, the corresponding provisions of section 4975 of the holding of the Rights by the PR Plan. EBSA recommends that you include Code.

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406(b)(2), and 407(a)(1)(A) of the Act 18 Effective Date: This proposed participants, therefore, indirectly own shall not apply to the acquisition and exemption, if granted, will be effective shares of Holdings Stock through holding of the Rights by the PR Plan in for the period beginning October 30, investments in the Stock Fund. connection with the Offering by 2014, and ending November 18, 2014 5. Sears Roebuck and all of its wholly- Holdings, provided that the conditions (the Offering Period). owned (direct and indirect) subsidiaries as set forth in Section II of this proposed and Sears Holdings Management exemption were satisfied for the Summary of Facts and Representations Corporation (SHMC), a wholly-owned duration of the acquisition and holding. Background subsidiary of Holdings, with respect to certain employees, have adopted the 1. Sears Holdings Corporation Section II. Conditions Savings Plan and are employers under (Holdings), is the parent company of (a) The receipt of the Rights by the that Plan. Plans occurred in connection with the Kmart and Sears, Roebuck, & Co. (Sears 6. As of October 30, 2014 (the Record Offering, in which all shareholders of Roebuck). Holdings was formed as a Date), there were 60,260 participants in the common stock of Holdings Delaware corporation in 2004 in the Savings Plan, and the Savings Plan’s (Holdings Stock), including the Plans, connection with the merger of Kmart share of the total assets of the Master were treated in the same manner; and Sears Roebuck on March 24, 2005. Trust was approximately $2.95 billion. (b) The acquisition of the Rights by By August 2014, Holdings operated a Also, as of the Record Date, the Savings the Plans resulted from an independent national network of stores with 1,870 Plan’s allocable share of the Holdings act of Holdings, as a corporate entity; full-line and specialty retail stores in the Stock held in the Stock Fund under the (c) Each shareholder of Holdings United States operating through Kmart Master Trust was 1,411,133 shares, and Stock, including each of the Plans, and Sears Roebuck. In October 2014, the approximate percentage of the fair received the same proportionate number Holdings completed the spin-off of a market value of the total assets of the of Rights based on the number of shares substantial portion of Sears Canada, Savings Plan invested in Holdings Stock of Holdings Stock held by each such Inc., which allowed it to dispose of a was 1.79 percent, which amount shareholder; non-core asset and raise substantial cash constituted approximately one percent (d) All decisions with regard to the proceeds. of the 106.5 million shares of Holdings 2. Common stock issued by Holdings holding and disposition of the Rights by Stock issued and outstanding. the Plans were made by a qualified (Holdings Stock), par value $0.01 per 7. The Savings Plan is administered independent fiduciary (the Independent share, is publicly-traded on the by the Sears Holding Corporation Fiduciary) within the meaning of 29 NASDAQ Global Select market under Administrative Committee (the CFR 2570.31(j); the symbol, ‘‘SHLD.’’ As of October 30, Administrative Committee), whose (e) The Independent Fiduciary 2014, there were 12,236 shareholders of members are officers and/or employees determined that it would be in the record and approximately 106.5 million of SHMC. The Sears Holdings interest of the Plans to sell all of the shares of Holdings Stock issued and Corporation Investment Committee (the Rights received in the Offering by the outstanding. Investment Committee), whose members Plans in blind transactions on the 3. ESL Investments, Inc. and its are officers and/or employees of SHMC, NASDAQ Global Select Market; affiliates (ESL), including Edward S. has authority over decisions relating to (f) No brokerage fees, commissions, Lampert (Mr. Lampert) owned the investment of the Savings Plan’s subscription fees, or other charges were approximately 48.5 percent of the assets. paid by the Plans with respect to the Holdings Stock, issued and outstanding, 8. The PR Plan was established by acquisition and holding of the Rights, or as of October 30, 2014. Mr. Lampert is Holdings for employees of Sears were paid to any affiliate of Holdings or the Chairman of the Board of Directors Roebuck de Puerto Rico (Sears Roebuck the Independent Fiduciary in and Chief Executive Officer of Holdings. PR) who reside in the Commonwealth of connection with the sale of the Rights. He is also the Chairman and Chief Puerto Rico. The Applicant represents Section III. Definitions Executive Officer of ESL. that the fiduciaries of the PR Plan have 4. Holdings and certain of its affiliates not made an election under section (a) The term ‘‘affiliate’’ of a person sponsor the Sears Holdings 401(k) includes: 1022(i)(2) of the Act, whereby such plan Savings Plan (the Savings Plan) and the would be treated as a trust created and (1) Any person directly or indirectly Sears Holdings Puerto Rico Savings Plan through one or more intermediaries, organized in the United States for (the PR Plan) (collectively the Plans). purposes of tax qualification under controlling, controlled by, or under Each Plan is a participant-directed common control with such person; section 401(a) of the Code. Therefore, account plan that permits participants according to the Applicant, there is no (2) Any officer, director, partner, to invest in equity, fixed income, employee, or relative, as defined in jurisdiction under Title II of the Act. balanced funds, and an investment fund section 3(15) of the Act, of such person; There is, however, jurisdiction under (the Stock Fund) comprised of Holdings and Title I of the Act. (3) Any corporation or partnership of Stock. The Plans are designed and 9. As of December 31, 2014, there which such person is an officer, operated to comply with the were 7550 participants in the PR Plan. director, partner, or employee. requirements of section 404(c) of the As of the Record Date, there were 1,766 (c) The term ‘‘control’’ means the Act. The Savings Plan and the PR Plan participants with account balances, and power to exercise a controlling assets are held together within the Sears the PR Plan’s share of the total assets of influence over the management or Holdings 401(k) Savings Plan Master the Master Trust was $17,859,181.57. policies of a person other than an Trust (the Master Trust), which also Also, as of the Record Date, the PR individual. holds the Stock Fund and consequently, Plan’s allocable share of the Holdings 19 shares of Holdings Stock. The Plans’ Stock held in the Stock Fund under the 18 The Applicant represents that there is no Master Trust was 40,650 shares, and the 19 jurisdiction under Title II of the Act with respect State Street Bank and Trust Company serves as approximate percentage of the fair to the PR Plan. Accordingly, the Department is not the master trustee and custodian for the Master providing any exemptive relief from section Trust. As of October 30, 2014, the Master Trust had 4975(c)(1)(E) of the Code for the acquisition and approximately $2.95 billion in total assets. As of Trust held 1,451,783 shares of Holdings Stock with holding of the Rights by the PR Plan. October 30, 2014, the Stock Fund within the Master a fair market value of $53,338,507.40.

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market value of the total assets of the PR Each Right also contained an over- Stock Fund, that the independent Plan invested in Holdings Stock was subscription privilege permitting the fiduciary would determine whether the 8.36 percent, which amount constituted holder to subscribe for additional Units, Rights should be exercised or sold, and 0.04 percent of the 106.5 million shares up to the number of Units that were not the means by which a participant could of Holdings Stock issued and subscribed for by the other holders of obtain more information. Holdings also outstanding. the Rights. The Plans were not eligible communicated generally with 10. The PR Plan is administered by to participate in the over-subscription employees regarding the Offering and the Administrative Committee, and the privilege because a qualified, with the public through public releases Investment Committee makes independent fiduciary acting on behalf at www.searsholdings.com. investment decisions for the PR Plan. of the Plans, sold the Rights received by 17. The Offering expired at 5 p.m. Banco Popular de Puerto Rico serves as the Plans, as discussed more fully eastern standard time on November 18, the trustee of the PR Plan. below. 2014. The Applicant represents that 14. All shareholders of Holdings Holdings issued 1,250,000 Units, The Offering Stock held the Rights until such Rights including $625 million aggregated 11. By late October 2014, Holdings expired, were exercised, or were sold. principal amount of Notes and Warrants had reduced its stake in Sears Canada, With regard to the exercise of the Rights, to purchase 21,999,296 shares of Inc. and raised significant cash through the Applicant represents that the Rights Holdings Stock. Over the 10-day period a rights offering. On October 20, 2014, could only be exercised in whole that the Rights traded on the Nasdaq, Holdings announced its intent to numbers. Furthermore, each the volume weighted average price per conduct an additional rights offering to shareholder of Holdings Stock needed to Right for the 751,041 Rights traded was shareholders (the Offering) as a means have at least eighty-six Rights to $201.1554, according to data reported of further evolving Holdings’ capital purchase a Unit, because only whole by Bloomberg. The Applicant represents structure and enhancing its financial Units could be purchased through the that the gross proceeds payable to and flexibility. On October 20, 2014, exercise of the Rights. Fractional Units received by Holdings from the sale of Holdings issued a prospectus describing or cash in lieu of fractional Units were the Units pursuant to the Offering, net the Offering to shareholders of record, not issued in connection with the of any selling expenses, was including the Plans, as of the Record Offering. approximately $625 million. Date. The prospectus was supplemented 15. With regard to the sale of the The Independent Fiduciary Rights, the Applicant represents that the on October 30, 2014. 18. Fiduciary Counselors Inc. (FCI) 12. Under the terms of the Offering, Rights were transferable and that they traded on the NASDAQ Global Select was retained by the Investment on October 30, 2014, each shareholder Committee pursuant to an agreement of record of Holdings Stock, including Market under the symbol ‘‘SHLDZ.’’ The Applicant represents that the public (the Agreement), dated November 3, the Plans, automatically received one (1) 2014, to act as the independent Right for every 85.1872 shares of trading of Rights (the Trading Period) began on or around October 31, 2014, fiduciary on behalf of the Plans, in Holdings Stock held by such connection with the Offering and an shareholder. The Applicant represents and continued until the close of business on November 13, 2014, the exemption application. Pursuant to the that only whole Rights were distributed terms of the Agreement, FCI’s to shareholders, including the Plans, third business day prior to the close of the Offering. The Applicant further responsibilities were to determine: (a) and the Master Trust acquired 17,189 Whether or not and when to exercise or represents that this deadline applied Rights through the Offering. The sell the Rights received by each Plan in allocation of the Rights to shareholders uniformly to all holders of the Rights. 16. While the Plans generally permit the Offering; or (b) if it determined to was handled by Depository Trust exercise any of a Plan’s Rights to Company. participants to direct the investment of their own accounts, including their purchase the Units, to manage the 13. Each Right permitted the holder investments in Holdings Stock, all investment in the Notes and Warrants thereof to purchase for $500, one decisions regarding the holding and within that Plan’s Stock Fund, and ‘‘Unit,’’ consisting of (a) a note issued by disposition of the Rights by each Plan determine when to liquidate or exercise Holdings in the principal amount of the Notes and Warrants for the purpose were made, in accordance with the Plan $500 (Note),20 and (b) 17.5994 warrants of reinvesting the proceeds in Holdings provisions, by a qualified independent (Warrants), each entitling the holder to Stock.23 21 fiduciary acting solely in the interest of purchase one share of Holdings Stock. 22 19. The Applicant represents that Plan participants. Participants in the hiring an independent fiduciary to Plans who were invested in Holdings 20 The Notes are unsecured obligations and bear manage the holding and disposition of interest at a rate of 8% per annum, which is paid Stock as of the Record Date were the Rights was appropriate in this case semi-annually. The Notes mature on December 15, notified of the Offering, the engagement for the following reasons: (a) There 2019. While the Notes are transferable, they are not of the independent fiduciary, the fact listed on any exchange and can only be sold in a would have been a significant cost to private transaction. Holdings issued $625 million that the Rights would be held in the each Plan to develop and implement a aggregate original principal amount of the Notes in process to administer a pass-through of the Offering. Warrants are transferable and listed on the Nasdaq the Rights to participants; (b) It was not 21 Each Warrant is initially exercisable for one Global Select Market under ‘‘SHLDW.’’ share of Holdings stock at an exercise price per 22 Each of the Plans was amended as required to: practicable to initiate and implement a share of $28.41. Subject to applicable laws and (i) Permit the Plan to temporarily acquire and hold pass-through of the Rights to regulations, the Warrants may be exercised at any the Rights (and any Notes or Warrants acquired participants given the limited notice time starting on their date of issuance until 5:00 through the exercise of the Rights) pending their provided to shareholders of the Offering p.m., New York City time, on December 15, 2019. orderly disposition; (ii) confirm that participants The exercise price may be paid with cash or Notes, are not entitled to direct the holding, exercise, sale and the short subscription period (15 provided that Holdings maintains an effective or other disposition of the Rights received by the registration statement for the Holdings Stock Plan; and (iii) authorize the designated independent 23 Because the Rights were automatically issued issuable upon exercise of the Warrants. If the fiduciary to exercise discretionary authority with to all shareholders including the Plans and there exercise of a Right would result in the delivery of respect to the holding, exercise, sale or other was no option to decline them, the independent a fractional Warrant, the number of Warrants would disposition of the Rights and any Notes or Warrants fiduciary was not asked to determine whether the be rounded down to the nearest whole number. The acquired through the exercise of the Rights. Plans should acquire the Rights.

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days); (c) Participants’ unfamiliarity and correspondence with ten-day period that the Rights traded on with rights offerings as well as general representatives of the Plans and the NASDAQ, the volume-weighted participant inertia may have resulted in Holdings, Holdings’ counsel, broker- average price for the 751,041 Rights a significant percentage of participants dealers, and representatives of the traded was $201.1554 according to data allowing their Rights to expire without Plans’ trustee, enabling FCI to better reported by Bloomberg. The IF Report selling or exercising them; (d) The Notes understand a number of important provides that FCI completed the sale of and Warrants had not been previously elements related to the Offering. In the Plans’ 17,189 Rights in blind selected by the plan fiduciary as an addition, FCI reviewed publicly transactions on the NASDAQ Global investment option appropriate for the available information and information Select Market between November 4 and Plan; and (5) The Rights are most provided by Holdings. November 7, 2014, realizing an average appropriately viewed as a non-cash 23. As detailed in the IF Report, with selling price of $211.6283 per Right. dividend payable to owners of Holdings regard to the Offering, FCI considered 26. According to the Applicant, as a Stock such as the Plans, so that the the following four (4) options: (a) result of the Rights sale, the total net fiduciary of the Stock Fund is the Continue holding the Rights within the proceeds generated for the Savings Plan appropriate person to manage the Stock Fund; (b) Exercising all of the and the PR Plan was $3,637,509.54. ‘‘proceeds’’ of the Plans’ investment in Rights and acquiring the Notes and These proceeds were credited to each Holdings Stock. The Applicant Warrants, then sell the Notes or use Plan and the unit value of each represents that, in this case, the them to exercise Warrants, sell or participant’s account balance reflected independent fiduciary appointed to exercise the Warrants, and use any the addition of assets credited to the manage the Rights took responsibility remaining cash to acquire Holdings Plan. for realizing the value in the Rights by Stock in the market; (c) Selling all of the 27. The Applicant represents that no selling them. The cash proceeds of that Rights on the NASDAQ Global Select brokerage fees, commissions, sale were then reinvested in Holdings Market at the prevailing market price; or subscription fees, or other charges were Stock pursuant to the terms of the plan. (d) Selling a portion of the Rights and paid by the Plans with respect to the 20. The Applicant represents that FCI using the proceeds to exercise the acquisition and holding of the Rights, or is qualified to serve as the independent remaining Rights, so as to acquire Notes were paid to any broker affiliated with fiduciary for the Plans in connection and Warrants (then sell the Notes or use FCI or Holdings in connection with the with the Offering, because FCI is a them to exercise Warrants, then sell or sale of the Rights. In this regard, FCI registered investment adviser under the exercise the Warrants and use any represents that it selected State Street Investment Advisers Act of 1940, and remaining cash to acquire Holdings Global Markets as the broker for the sale over the past 13 years, FCI has served Stock in the market). Acting as the of the Plans’ Rights, based on FCI’s or is serving as an independent independent fiduciary on behalf of the confidence in the broker’s execution fiduciary on behalf of employee benefit Plans, FCI chose to sell all of the Rights ability and an attractive fee schedule of plans in connection with more than 14 on the NASDAQ Global Select Market. 0.015 cents per Right traded. In prohibited transaction exemption 24. In determining to sell all of the connection with the sale of the Rights, applications, not counting applications Plans’ Rights, FCI represents that the the Plans paid $257.84 in commissions involving the Plans. Additionally, FCI proceeds from the sale would be to independent, third parties and $80.42 represents that it is an independent invested in Holdings Stock, as per the in SEC fees. governing documents of the Stock Fund. company whose primary focus is Requested Relief providing independent fiduciary As described in the IF Report, FCI services for employee benefit plans. determined that the benefits of selling 28. The Applicant represents that the 21. In its ‘‘Report of Independent the Rights included simplicity, lower subject transactions have already been Fiduciary Regarding Sears Rights transaction costs, and less exposure to consummated. In this regard, the Plans Offering for Debt and Warrants,’’ dated risk than the options that involved acquired the Rights pursuant to the February 23, 2015 (the IF Report), FCI exercising any of the Rights. According Offering, and held such Rights until the represents and warrants that it is to FCI, this option allowed the Plans to Rights were sold by the independent independent and unrelated to Holdings. realize the benefits of the Rights in a fiduciary. The Applicant states that, FCI further represents that it did not timely manner at the best available because there was insufficient time directly or indirectly receive any market prices so that cash raised before the Plans acquired the Rights to compensation or other consideration for through the sale could be reinvested in apply for and be granted an exemption, its own account in connection with the Holdings Stock, consistent with the Holdings was required to request Offering, except compensation from purpose and intent of the Stock Fund. retroactive relief, effective as of October Holdings for performing services FCI understood that the Plans would 30, 2014, the Record Date. described in the Agreement. The incur some transactions costs through 29. Section 406(a)(1)(E) of the Act percentage of FCI’s 2014 revenue this option, estimated at $0.015 to $0.05 prohibits a fiduciary from causing a derived from any party in interest per Right traded. Accordingly, FCI plan to engage in a transaction, if he involved in the subject transaction or its concluded that this sale of the Rights knows or should know that such affiliates was less than five percent of was in the interest of the Plans and the transaction constitutes a direct or FCI’s 2013 revenue. Plans’ participants and beneficiaries and indirect acquisition, on behalf of a plan, 22. FCI represents further that it was protective of such participants and of any employer security or employer understands and acknowledges its beneficiaries of the Plans. real property in violation of section duties and responsibilities under the 25. At FCI’s direction, the Plans sold 407(a). Section 406(a)(2) of the Act Act in acting as a fiduciary on behalf of the Rights over a period of days while prohibits a fiduciary who has authority the Plans in connection with the trying not to be too high a percentage of or discretion to control or manage the Offering. In the IF Report, FCI the daily volume so as to avoid putting assets of a plan from permitting a plan represents that it conducted a due downward pressure on the price of the to hold any employer security or diligence process in evaluating the Rights. The Trading Period ended on employer real property if he knows or Offering on behalf of the Plans. This November 13, 2014. According to the IF should know that holding such security process included numerous discussions Report, and as noted above, over the or real property violates section 407(a).

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The Applicant represents that because addition, the acquisition of the Rights copy of the notice of proposed the Rights are non-qualifying employer by the Plans occurred on the same terms exemption, as published in the Federal securities, the acquisition and holding made available to other holders of Register, and a supplemental statement, of the Rights violated sections Holdings Stock and the Plans received as required pursuant to 29 CFR 406(a)(1)(E), 406(a)(2), and 407(a) of the the same proportionate number of 2570.43(a)(2). The supplemental Act. Rights as other owners of Holdings statement will inform interested persons 30. Furthermore, section 406(b)(1) of Stock. The Plans were also protected in of their right to comment on and to the Act prohibits a fiduciary from that all decisions regarding the holding request a hearing with respect to the dealing with the assets of a plan in his and disposition of the Rights by the pending exemption. Written comments own interest or for his own account. Plans were made, in accordance with and hearing requests are due within 52 Section 406(b)(2) of the Act prohibits a Plan provisions, by the independent days of the publication of the notice of fiduciary, in his individual or in any fiduciary. Furthermore, the independent proposed exemption in the Federal other capacity, from acting in any fiduciary determined that it would be in Register. All comments will be made transaction involving the plan on behalf the interest of the Plans to sell all of the available to the public. of a party (or representing a party) Rights received in the Offering by the Warning: If you submit a comment, whose interests are adverse to the Plans in blind transactions on the EBSA recommends that you include interests of the plan or the interests of NASDAQ Global Select Market. your name and other contact its participants or beneficiaries. The information in the body of your Summary Applicant states that, although Holdings comment, but DO NOT submit retained an independent fiduciary to 35. In summary, the Applicant information that you consider to be represent the Plans in connection with represents that the proposed exemption confidential, or otherwise protected the disposition of the Rights, by causing satisfies the statutory criteria for an (such as Social Security number or an the participation of the Plans in the exemption under section 408(a) of the unlisted phone number) or confidential Offering, Holdings may have dealt with Act and section 4975(c)(2) of the Code business information that you do not the assets of the Plans for its own for the reasons stated above and for the want publicly disclosed. All comments account, and also may have acted in a following reasons: may be posted on the Internet and can transaction on behalf of itself and the (a) The receipt of the Rights by the be retrieved by most Internet search Plans. Plans occurred in connection with the engines. 31. Therefore, the Applicant requests Offering, in which all shareholders of FOR FURTHER INFORMATION CONTACT: an administrative exemption from Holdings Stock, including the Plans, Erin sections 406(a)(1)(E), 406(a)(2), were treated in the same manner; S. Hesse of the Department, telephone 406(b)(1), 406(b)(2), and 407(a)(1)(A) of (b) The acquisition of the Rights by (202) 693–8546. (This is not a toll-free the Act and section 4975 of the Code by the Plans resulted from an independent number.) reason of 4975(c)(1)(E) of the Code, with act of Holdings, as a corporate entity, Sears Holdings 401(k) Savings Plan (the regard to the Savings Plan, and from and without any participation on the Savings Plan) and the Sears Holdings sections 406(a)(1)(E), 406(a)(2), part of the Plans; Puerto Rico Savings Plan (the PR Plan) 406(b)(1), 406(b)(2), and 407(a)(1)(A) of (c) Each shareholder of Holdings (together, the Plans) Located in the Act with regard to the PR Plan.24 Stock, including each of the Plans, Hoffman Estates, IL received the same proportionate number Statutory Findings of Rights based on the number of shares [Application Nos. D–11871 and D–11872, 32. The Applicant represents that the of Holdings Stock held by each such Respectively] requested exemption is administratively shareholder; Proposed Exemption feasible because the acquisition, (d) All decisions with regard to the The Department is considering holding, and sale of the Rights by the holding and disposition of the Rights by granting an exemption under the Plans was a one-time transaction which the Plans were made by a qualified, authority of section 408(a) of the Act (or will not require continued monitoring independent fiduciary within the ERISA), as amended, and section or other involvement by the meaning of 29 CFR 2570.31(j); 4975(c)(2) of the Code, as amended, and Department. (e) The independent fiduciary in accordance with the procedures set 33. The Applicant represents that the determined that it would be in the forth in 29 CFR part 2570, subpart B (76 transactions which are the subject of interest of the Plans to sell all of the FR 66637, 66644, October 27, 2011). this proposed exemption are in the Rights received in the Offering by the interest of the Plans, because the Rights Plans in blind transactions on the Section I. Transactions were automatically issued at no cost to NASDAQ Global Select Market; and (a) If the proposed exemption is all shareholders of Holdings Stock as of (f) No brokerage fees, commissions, granted, the restrictions of sections a specified Record Date, including the subscription fees, or other charges were 406(a)(1)(E), 406(a)(2), 406(b)(1), Plans. The Plans were then able to paid by the Plans with respect to the 406(b)(2), and 407(a)(1)(A) of the Act realize value through their sale. acquisition and holding of the Rights, or and the sanctions resulting from the 34. The Applicant represents that the were paid to any affiliate of Holdings or application of section 4975 of the Code, transactions were protective of the the independent fiduciary in connection by reason of section 4975(c)(1)(E) of the Plans, and their respective participants with the sale of the Rights. 25 and beneficiaries, as the Plans obtained Code, shall not apply, effective for the the Rights as a result of an independent Notice to Interested Persons period beginning June 11, 2015 and act of Holdings as a corporate entity. In Notice of the proposed exemption ending July 2, 2015, to the acquisition will be given to all interested persons and holding by the Savings Plan of 24 The Applicant represents that there is no within 22 days of the publication of the certain subscription rights (the Rights) jurisdiction under Title II of the Act with respect notice of proposed exemption in the to the PR Plan. Accordingly, the Department is not 25 For purposes of this proposed exemption, providing any exemptive relief from section Federal Register, by first class U.S. mail references to specific provisions of Title I of the 4975(c)(1)(E) of the Code for the acquisition and to the last known address of all such Act, unless otherwise specified, refer also to the holding of the Rights by the PR Plan. individuals. Such notice will contain a corresponding provisions of the Code.

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to purchase shares of common stock (e) The Independent Fiduciary participants to purchase units in certain (Seritage Growth Stock) in Seritage determined that it would be in the stock funds which invest in Holdings Growth Properties (Seritage Growth), in interest of the Plans to sell all of the Stock. In this regard, the Savings Plan connection with an offering (the Rights received in the Offering by the and the PR Plan share a single stock Offering) by Sears Holdings Corporation Plans in blind transactions on the New fund (the Stock Fund) within the Sears (Holdings or the Applicant) of Seritage York Stock Exchange (NYSE); and Holdings 401(k) Savings Plan Master Growth Stock, provided that the (f) No brokerage fees, commissions, Trust (the Master Trust) to hold shares conditions, as set forth below in Section subscription fees, or other charges were of Holdings Stock. As of June 11, 2015, II of this proposed exemption were paid by the Plans with respect to the the Master Trust held approximately satisfied for the duration of the acquisition and holding of the Rights; or $2.8 billion in total assets. State Street acquisition and holding; and were paid to any affiliate of the Bank and Trust Company (State Street) (b) If the proposed exemption is Independent Fiduciary or Holdings, in serves as the Master Trustee and granted, the restrictions of sections connection with the sale of the Rights. Custodian for the Master Trust. 406(a)(1)(E), 406(a)(2), 406(b)(1), 2. Sears, Roebuck and Co. (Sears Section III. Definitions 406(b)(2), and 407(a)(1)(A) of the Act 26 Roebuck) and all of its wholly-owned shall not apply, effective for the period (a) The term ‘‘Holdings’’ refers to (direct and indirect) subsidiaries (except beginning June 11, 2015, and ending Sears Holdings Corporation and its Lands’ End Inc. (Lands’ End), Sears de July 2, 2015, to the acquisition and affiliates. Puerto Rico, Inc., Kmart Holding holding of the Rights by the PR Plan in (b) The term ‘‘affiliate’’ of a person Corporation (Kmart), and its wholly- connection with the Offering of Seritage includes: owned (direct and indirect) subsidiaries Growth Stock by Holdings, provided (1) Any person directly or indirectly (excluding employees residing in Puerto that the conditions, as set forth in through one or more intermediaries, Rico), and Sears Holdings Management Section II of this proposed exemption controlling, controlled by, or under Corporation, with respect to certain were satisfied for the duration of the common control with such person; employees, have adopted the Savings acquisition and holding. (2) Any officer, director, partner, Plan and are employers under such employee, or relative, as defined in plan. Section II. Conditions section 3(15) of the Act, of such person; As of June 11, 2015, (the Record Date), (a) The receipt of the Rights by the and there were 53,831 participants in the Plans occurred in connection with the (3) Any corporation or partnership of Savings Plan, and the Savings Plan’s Offering, in which all shareholders of which such person is an officer, share of the total assets of the Master the common stock of Holdings director, partner, or employee. Trust was $2,820,235,014. Also, as of (Holdings Stock), including the Plans, (c) The term ‘‘control’’ means the the Record Date, the Savings Plan’s were treated in the same manner; power to exercise a controlling allocable portion of Holdings Stock held (b) The acquisition of the Rights by influence over the management or in the Stock Fund on behalf of 14,476 the Plans resulted solely from an policies of a person other than an participants under the Master Trust was independent act of Holdings, as a individual. 1,286,302.45 shares, which constituted approximately 1.2% of the 106,603,021 corporate entity; EFFECTIVE DATE: This proposed shares of Holdings Stock issued and (c) Each shareholder of Holdings exemption, if granted, will be effective outstanding. The approximate Stock, including each of the Plans, for the Offering period, beginning June percentage of the fair market value of received the same proportionate number 11, 2015, and ending July 2, 2015 (the the total assets of the Savings Plan of Rights based on the number of shares Offering Period). of Holdings Stock held by each such invested in Holdings Stock was 1.3%. shareholder; Summary of Facts and The Savings Plan is administered by (d) All decisions with regard to the Representations 28 the Sears Holding Corporation Administrative Committee (the holding and disposition of the Rights by The Plans the Plans were made by a qualified Administrative Committee), whose independent fiduciary (the Independent 1. Employees of certain affiliates of members are employees of Holdings. Fiduciary) within the meaning of 29 Holdings participate in the Plans. The The Sears Holdings Corporation CFR 2570.31(j); 27 Plans consist of the Savings Plan and Investment Committee (the Investment the PR Plan. The Plans are defined Committee), whose members are officers 26 The Applicant represents that there is no contribution, eligible individual account and/or employees of Holdings and/or its jurisdiction under Title II of the Act with respect plans that are designed and operated to subsidiaries, has authority over to the PR Plan because the PR Plan fiduciaries have comply with the requirements of section decisions relating to the investment of not made an election under section 1022(i)(2) of the the Plans’ assets. Act, whereby the PR Plan would be treated as a 404(c) of the Act. The Plans allow trust created and organized in the United States for 3. The PR Plan, which is sponsored purposes of tax qualification under section 401(a) income tax year from parties in interest (and their and maintained by Holdings, was of the Code. Accordingly, the Department is not affiliates) [with respect] to the transaction are not originally established by Sears Roebuck providing exemptive relief from section more than 2% of such fiduciary’s annual revenues for employees of Sears Roebuck de 4975(c)(1)(E) of the Code for the acquisition and based upon its prior income tax year. Although the holding of the Rights by the PR Plan. presumption does not apply when the Puerto Rico Inc. (Sears Roebuck de 27 29 CFR 2570.31(j) defines a ‘‘qualified aforementioned percentage exceeds 2%, a fiduciary Puerto Rico) and Kmart, who reside in independent fiduciary,’’ in relevant part, to mean nonetheless may be considered independent based the Commonwealth of Puerto Rico, ‘‘any individual or entity with appropriate training, upon other facts and circumstances provided that upon the merger of the Kmart experience, and facilities to act on behalf of the it receives or is projected to receive revenues that plan regarding the exemption transaction in are not more than 5% within the current federal Corporation Retirement Savings Plan for accordance with the fiduciary duties and income tax year from parties in interest (and their Puerto Rico employees with and into responsibilities prescribed under the Act, that is affiliates) [with respect] to the transaction based the prior Sears Roebuck de Puerto Rico independent of and unrelated to any party in upon its prior income tax year.’’ Savings Plan, as of March 31, 2012. interest engaging in the exemption transaction and 28 The Summary of Facts and Representations is its affiliates;’’ in general, a fiduciary is presumed to based solely on the representations of the Applicant According to the Applicant, the PR Plan be independent ‘‘if the revenues it receives or is and does not reflect the views of the Department, has not made an election under section projected to receive, within the current federal unless indicated otherwise. 1022(i)(2)of the Act, whereby such plan

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would be treated as a trust created and the Chairman and Chief Executive of the Record Date, received one Right organized in the United States for Officer of ESL. for every whole share of Holdings Stock purposes of tax qualification under it held. Each Right entitled the holder to Seritage Growth section 401(a) of the Code. Therefore, purchase one half of one share of according to the Applicant, there is no 6. Seritage Growth is a publicly Seritage Growth Stock at the jurisdiction under Title II of the Act. traded, self-administered, self-managed subscription price of $29.58 per whole There is, however, jurisdiction under real estate investment trust that is share. According to the Applicant, the Title I of the Act. primarily engaged in the real property Rights were distributed as practicable as As of the Record Date, there were business through its investment in its possible after the June 11, 2015 Record 1,696 participants in the PR Plan, and operating partnership, Seritage Growth Date. the PR Plan’s share of the total assets of Properties, L.P. Seritage Growth’s 8. Each Right also contained an over- the Master Trust was $17,324,339. Also, portfolio contains 235 wholly-owned subscription privilege permitting the as of the Record Date, the PR Plan’s properties and 31 joint venture holder to subscribe for additional allocable portion of Holdings Stock held properties, consisting of approximately Seritage Growth Stock, up to the in the Stock Fund under the Master 42 million square feet of building space, number of common shares that were not Trust on behalf of 629 participants was which is broadly diversified by location subscribed for by the other holders of 39,782,55 shares, which constituted across 49 states and Puerto Rico. the Rights. The Plans were not eligible approximately 0.04% of the 106,603,021 Pursuant to a master lease, 224 of to participate in the over-subscription shares of Holdings Stock issued and Seritage Growth’s wholly-owned privilege because the Independent outstanding, on June 11, 2015. The properties are leased to Holdings and Fiduciary sold the Rights received by approximate percentage of the fair are operated under either the Sears the Plan, as discussed more fully below. market value of the total assets of the PR Roebuck or K-Mart brand. The master 9. All shareholders of Holdings Stock Plan invested in Holdings Stock was lease provides Seritage with rights to held the Rights until such Rights 6.5%, recapture certain space from Sears expired, were exercised, or were sold. A The PR Plan is administered by the Holdings at each property. shareholder had the right to exercise Administrative Committee, and the Prior to the Offering described below, some, all, or none of its Rights. Investment Committee makes Seritage Growth Stock was owned However, its election to exercise the investment decisions for such plan. exclusively by Benjamin Schall, the Rights had to be received by the Banco Popular de Puerto Rico serves as Chief Executive Officer of Seritage subscription agent, Computershare the PR Plan trustee. Growth. Immediately following the Trust Company, N.A., by July 2, 2015. Offering, ESL owned 4% of Seritage The election to exercise any of the Holdings Growth Stock, 100% of Seritage Rights was irrevocable. 4. Holdings, the sponsor of each of the Growth’s Class B non-economic shares, All shareholders of Holdings Stock Plans, is a retail merchant with full-line 9.8% of Seritage Growth’s voting power, held the Rights until such Rights and specialty retail stores in the United 43.5% of Seritage Growth (Operating expired, were exercised, or were sold. States, Guam, Puerto Rico, the U.S. Partnership) units, and 45.3% of the Each shareholder of the Holdings Stock Virgin Islands, and Canada. Holdings consolidated economics of Seritage needed to have at least two Rights to was formed as a Delaware corporation Growth and the Operating purchase one whole share of Seritage in 2004 in connection with the merger Partnership.29 Growth Stock, because only whole of Kmart and Sears Roebuck, which took shares could be purchased by the The Offering place on March 24, 2005. Holdings is exercise of the Rights. Fractional shares the parent company of Kmart Holding 7. On April 1, 2015, Holdings or cash in lieu of fractional shares were Company and Sears Roebuck. The announced its intention to conduct a not issued in connection with the principal executive office of Holdings is Rights Offering of 53,298,899 shares of Offering. Fractional shares of the located in Hoffman Estates, Illinois. Seritage Growth Stock to Holdings Seritage Growth Stock resulting from According to the Form 10–K for the shareholders. Holdings issued a the exercise of basic Rights, as to any fiscal year ending January 31, 2015, prospectus describing the Offering of holder of such Rights were rounded Holdings and its subsidiaries had total certain subscription Rights to down to the nearest whole number. assets of approximately $11.3 billion. shareholders of record, including the 10. With regard to the sale of the Also as of January 31, 2015, Holdings Master Trust, as of June 11, 2015, the Rights, the Applicant represents that the and its subsidiaries employed Record Date. The Holdings Board of Rights were transferable. The Applicant approximately 196,000 employees. Directors determined that the Offering also represents that the Rights began to was in the best interest of Holdings and trade on the NYSE under the symbol Holdings Stock/Ownership its stockholders. According to the ‘‘SRGRT’’ on or around June 12, 2015, 5. Common stock issued by Holdings Applicant, the purpose of the Offering and continued to trade until the trading (i.e., Holdings Stock), with a par value was to allow Seritage Growth to deadline at the close of business on June $0.01 per share, is publicly-traded on purchase a portfolio of Holdings real 26, 2015. Further, the Applicant the NASDAQ Global Select Market properties from Holdings using the explains that the trading deadline under the symbol, ‘‘SHLD.’’ There were proceeds obtained from the Offering. applied uniformly to all holders of the 11,659 shareholders of record, as of June Under the terms of the Offering, all Rights. 11, 2015. shareholders of Holdings Stock 11. The Offering expired at 5 p.m. ESL Investments, Inc. and its automatically received the Rights, at no New York City time on July 2, 2015. The affiliates, (ESL), including Edward S. charge. Specifically, each shareholder as Applicant represents that the Offering Lampert (Mr. Lampert) owned was oversubscribed and all of the Rights approximately 53.2% of Holdings Stock 29 To clarify the relationship between Seritage were exercised at a price of U.S. $29.58 issued and outstanding as of June 9, Growth and the Operating Partnership, the per share of Seritage Growth Stock. Applicant represents that Seritage Growth is the 2015. Mr. Lampert is the Chairman of general partner of the Operating Partnership and Accordingly, in connection with the the Board of Directors and Chief owns the majority of the Operating Partnership Offering, Seritage Growth offered and Executive Officer of Holdings. He is also units. issued up to 106,603,021 Rights to

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purchase up to 53,298,899 shares of following reasons: (a) There would have serving as an independent fiduciary on Seritage Growth Stock. been a significant cost to develop and behalf of employee benefit plans in 12. All of the gross proceeds from the implement a process under each Plan to connection with more than 50 exercise of the Rights to purchase administer the pass-through of the prohibited transaction exemption Seritage Growth Stock, approximately Rights to participants; (b) it was not applications that have been filed with $1,576,581,444, net of any selling practicable to initiate and implement a the Department. expenses, were payable to and received pass-through of the Rights to In the Agreement, Evercore further by Seritage Growth. The Applicant participants given the limited notice represents that it is independent and asserts that the proceeds were or will be provided to shareholders of the Offering unrelated to Holdings, and that it did used by Seritage Growth to purchase a and the short subscription period (21 not directly or indirectly receive any portfolio of real properties from days), because such process would have compensation or other consideration for Holdings. included the establishment of a ‘‘rights its own account in connection with the 13. Based on the ratio of one Right for fund’’ and a Seritage Growth fund Offering, except compensation from each share of Holdings Stock held, the within each Plan, the design and testing Holdings for performing services Applicant explains that the Master Trust of procedures for allocating the Rights described in the Agreement. According acquired 1,326,085 Rights as a result of among participant accounts, soliciting to the Agreement, Evercore states that the Offering. While the Plans generally participant directions on the exercise or the gross revenue it received (or permit participants to direct the sale of the Rights and identifying the expected to receive) in 2015 that was investment of their own accounts, source of funding (e.g., which derived from any party in interest or an including their investments in Holdings investment account is to be liquidated) affiliate of such party in interest Stock, the Applicant represents that all for each participant who chose to involved in the Seritage Growth decisions regarding the holding and exercise the Rights, and the short transaction, would represent less than disposition of the Rights by each Plan Offering Period meant that there would 2% its 2014 gross revenue. Also, in the were made, in accordance with the Plan have been insufficient time to Agreement, Evercore represents that it provisions, by the Independent adequately educate participants understood and acknowledged its duties Fiduciary acting solely in the interest of regarding their rights and obligations; and responsibilities under the Act in Plan participants. According to the (c) there would have been a loss of value acting as a fiduciary on behalf of the Applicant, participants in the Plans who that participants might otherwise have Plans in connection with the Offering. were invested in Holdings Stock as of gained, because participants’ In addition, Evercore represents that it the Record Date were notified of the unfamiliarity with rights offerings as conducted a due diligence process in Offering, the engagement of the well as general participant inertia would evaluating the Offering on behalf of the Plans. This process included Independent Fiduciary, the fact that the have resulted in a significant percentage Rights would be held in the Stock Fund, discussions and correspondence with of participants allowing their Rights to that the Independent Fiduciary would representatives of the Plans, Holdings, expire without selling or exercising determine whether the Rights should be Holdings’ counsel, broker-dealers, and them; (d) it was not in the interest of exercised or sold, and the means by representatives of the trustee of the participants to require the Plans to offer which a participant could obtain more Master Trust, enabling Evercore to and hold for participant investment a information. The Applicant further improve certain elements related to the single stock (i.e., Seritage Growth Stock) represents that Holdings communicated Offering. Evercore also states that it that had not been selected by the plan generally with employees regarding the reviewed publicly available information fiduciary as an investment option Offering and with the public through and information provided by Holdings. appropriate for the Plans; and (e) the public releases at With regard to the Offering, Evercore Rights are most appropriately viewed as www.searsholdings.com. explains that it considered four options a non-cash dividend payable to owners on behalf of the Plans: (a) To continue Role of the Independent Fiduciary of Holdings Stock, such as the Plans, so holding the Rights within the Stock 14. Evercore Trust Company, N.A. that the fiduciary of the Stock Fund is Fund; (b) to exercise all of the Rights to (Evercore) was retained by the the appropriate person to manage the acquire Seritage Growth Stock; (c) to sell Investment Committee, pursuant to an ‘‘proceeds’’ of the Plans’ investment in all of the Rights on the NYSE at the agreement (the Agreement) dated June 5, Holdings Stock. The Applicant prevailing market price; or (d) to sell a 2015, to act as the Independent represents that, in this case, the portion of the Rights and use the Fiduciary on behalf of the Plans, in Independent Fiduciary appointed to proceeds to exercise the remaining connection with the Offering and with manage the Rights on behalf of the Plans Rights to acquire Seritage Growth Stock. the application for exemption submitted took responsibility for realizing the In determining to sell all of the Plans’ to the Department. Pursuant to the terms value in the Rights by selling them. The Rights, Evercore represents that the of the Agreement, Evercore’s cash proceeds of the sale were then proceeds from the sale would be responsibilities were: (a) To determine reinvested in Holdings Stock pursuant invested in Holdings Stock, in whether and when to exercise or sell to the terms of the Plans. accordance with the governing each of the Plan’s Rights; and (b) if it In the Agreement, Evercore represents documents of the Stock Fund. Evercore determined to exercise any of a Plan’s that it is qualified to serve as the reasoned that, although the Plans would Rights to purchase Seritage Growth Independent Fiduciary for the Plans in incur some transaction costs by selling Stock, to manage the investment within connection with the Offering because it the Rights, estimated at $0.01 per Right that Plan’s Stock Fund, and determine is a national trust bank chartered by the traded, plus a similar expense in when to liquidate or exercise the shares Office of the Comptroller of the connection with the reinvestment of the for the purpose of reinvesting the Currency. Evercore states that it has proceeds into shares of Holdings Stock, proceeds in Holdings Stock. provided specialized investment the benefits of selling the Rights The Applicant represents that hiring management, independent fiduciary, included the fact that the proceeds an Independent Fiduciary to manage the and trustee services to employee benefit could be quickly redeployed into shares holding and disposition of the Rights plans since 1987. Evercore also of Holdings Stock, lower transaction was appropriate in this case for the represents that it has served or is costs, and less exposure to risk than the

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options that involved exercising any of 17. In the opinion of Evercore, the indirect acquisition, on behalf of a plan, the Rights. Accordingly, Evercore actions outlined above in which it was of any employer security or employer concluded that the sale of the Rights engaged on behalf of the Plans, were in real property in violation of section was in the interest of the Plans and the the interest of the Plans and the Plans’ 407(a). Section 406(a)(2) of the Act Plans’ participants and beneficiaries and participants and beneficiaries, and were prohibits a fiduciary who has authority was protective of such participants and protective of the rights of such or discretion to control or manage the beneficiaries of the Plans. participants and beneficiaries of the assets of a plan from permitting a plan 15. As a result of the sale of 1,326,085 Plans. to hold any employer security or Rights that were acquired by the Master 18. No brokerage fees, commissions, employer real property if he knows or Trust during the Offering, the total net subscription fees, or other charges were should know that holding such security proceeds generated for the Savings Plan paid by the Plans with respect to the or real property violates section 407(a). and the PR Plan was $4,106,921.19. acquisition and holding of the Rights, or The Applicant represents that because These proceeds were credited to the were paid to any broker affiliated with the Rights are non-qualifying employer Stock Fund, and thus, to each Plan. The Evercore, or Holdings, in connection securities, the acquisition and holding unit value of each participant’s account with the sale of the Rights. In this of the Rights by the Plans violated balance in each Plan reflected the regard, it is represented that Evercore sections 406(a)(1)(E), 406(a)(2), and addition of the proceeds to the Stock selected State Street Global Markets to 407(a) of the Act. Fund (as applicable). execute the trades for the sale of the Furthermore, section 406(b)(1) of the The trading period for the sale of the Rights issued to the Master Trust, based Act prohibits a fiduciary from dealing Rights on the NYSE ended on June 26, on Evercore’s confidence in that with the assets of a plan in his own 2015. Evercore sold the Plans’ 1,326,085 broker’s execution ability and an interest or for his own account. Section Rights in blind transactions on the attractive fee schedule of 0.01 cent per 406(b)(2) of the Act prohibits a NYSE between June 16 and June 19, Right traded. In connection with the fiduciary, in his individual or in any 2015, realizing an average selling price sale of the Rights, the Plans (through the other capacity, from acting in any Master Trust) paid $13,260.85 in of $3.10 per Right. According to the 30 transaction involving the plan on behalf Applicant, the volume-weighted average commissions and $75.83 in SEC fees. of a party (or representing a party) price for a total of 46,699,673 Rights that Requested Relief whose interests are adverse to the were sold during the trading period was 19. The application was filed by interests of the plan or the interests of $3.66, according to data reported by Holdings on behalf of itself and its its participants or beneficiaries. The Factset. affiliates. In this regard, Holdings has Applicant states that, although Holdings 16. Evercore represents that, as noted requested an exemption for the retained the Independent Fiduciary to in the Independent Fiduciary Report, its acquisition and holding of the Rights by represent the Plans in connection with goal in selling the Rights was to dispose the Plans in connection with the the disposition of the Rights, by causing of them in a timely manner at the best Offering of Seritage Growth Stock by the participation of the Plans in the available market prices so that cash Holdings. The Applicant represents that Offering, Holdings may have dealt with raised through the sale could be the subject transactions have already the assets of the Plans for its own reinvested in shares of Holdings Stock been consummated. In this regard, the account, and also may have acted in a as soon as possible and at the discretion Plans acquired the Rights pursuant to transaction on behalf of itself and the of State Street, the Master Trustee and the Offering, and held such Rights until Plans. Custodian of the Master Trust. This, they were sold by the Independent Therefore, the Applicant requests an according to Evercore was consistent Fiduciary. The Applicant states that, administrative exemption from sections with the purpose and intent of the Stock because there was insufficient time 406(a)(1)(E), 406(a)(2), 406(b)(1), Fund. between the dates the Plans acquired 406(b)(2), and 407(a)(1)(A) of the Act Evercore explains that it also believed the Rights and when the Rights were and section 4975 of the Code by reason it was prudent to take advantage of sold to apply for and be granted an of 4975(c)(1)(E) of the Code, with regard available liquidity early in the Offering administrative exemption by the to the Savings Plan, and from sections Period, given the typical decline in Department, Holdings requested 406(a)(1)(E), 406(a)(2), 406(b)(1), trading volume experienced over the retroactive exemptive relief for the 406(b)(2), and 407(a)(1)(A) of the Act course of a rights offering period. period June 11, 2015, through July 2, with regard to the PR Plan. Evercore states that it promptly began to 2015. Statutory Findings sell the Rights once it was informed that 20. Section 406(a)(1)(E) of the Act the Rights had been delivered to the prohibits a fiduciary from causing a 21. The Applicant represents that the Stock Fund account. The liquidation plan to engage in a transaction, if he proposed transactions are lasted four days, beginning on June 16, knows or should know that such administratively feasible because the 2015, and ending on June 19, 2015. The transaction constitutes a direct or acquisition and holding of the Rights by Rights continued to trade over five more the Plans were one-time transactions days (June 22 to June 26), during which 30 The Applicant represents that the brokerage that involved an automatic distribution time the price of the Rights rose. This services and the fees that were received by State of the Rights to all shareholders, that Street Global Markets in connection with the sale rise in price, Evercore asserts, was of the Rights by the Plans, are exempt under section would not require any continuing entirely unpredictable beforehand. 408(b)(2) of the Act. The Department, herein, is not oversight by the Department. Waiting for such a potential outcome, providing any relief for the receipt of any The Applicant also represents that the Evercore explains, would have been at commissions, fees, or expenses in connection with subject transactions were in the interest the sale of the Rights in blind transactions to odds with its goal of promptly realizing unrelated third parties on the NYSE, beyond that of the Plans and their respective and reallocating proceeds, and further provided pursuant to section 408(b)(2) of the Act. participants and beneficiaries, because would have exposed the Plans to the In this regard, the Department is not opining as to the Rights were automatically issued at whether the conditions as set forth in section risk of a significant decline in the price 408(b)(2) of the Act and the Department’s no cost to the shareholders of Holdings of the Rights over the course of the regulations, pursuant to 29 CFR 2550.408(b)(2) have Stock, including the Plans, as of the offering period. been satisfied. Record Date.

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Finally, the Applicant represents that acquisition and holding of the Rights; or 408(a) of the Act and/or section the transactions were protective of the were paid to any broker affiliated with 4975(c)(2) of the Code does not relieve rights of the participants and the Independent Fiduciary or Holdings, a fiduciary or other party in interest or beneficiaries of the respective Plans in connection with the sale of the disqualified person from certain other because the Plans obtained the Rights as Rights; and provisions of the Act and/or the Code, a result of an independent act of (g) The acquisition of the Rights by including any prohibited transaction Holdings as a corporate entity. In the Plans occurred on the same terms provisions to which the exemption does addition, the acquisition of the Rights made available to other shareholders of not apply and the general fiduciary by the Plans occurred on the same terms Holdings Stock. responsibility provisions of section 404 made available to other holders of Notice to Interested Persons of the Act, which, among other things, Holdings Stock, and the Plans received require a fiduciary to discharge his the same proportionate number of The persons who may be interested in duties respecting the plan solely in the Rights as other owners of Holdings the publication in the Federal Register interest of the participants and Stock. The Plans were also protected in of the Notice of Proposed Exemption beneficiaries of the plan and in a that all decisions regarding the holding (the Notice) include all participants prudent fashion in accordance with and disposition of the Rights by the whose accounts in the Plans were section 404(a)(1)(b) of the Act; nor does Plans were made, in accordance with invested on the Record Date through the it affect the requirement of section Plan provisions, by the Independent Master Trust in the Stock Fund which 401(a) of the Code that the plan must Fiduciary. Furthermore, the Applicant held the Holdings Stock. operate for the exclusive benefit of the represents that the Independent It is represented that all such employees of the employer maintaining Fiduciary determined that it would be interested persons will be notified of the the plan and their beneficiaries; in the interest of the Plans to sell all of publication of the Notice by first class the Rights received in the Offering by mail, to each such interested person’s (2) Before an exemption may be the Plans in blind transactions on the last known address within 22 days of granted under section 408(a) of the Act NYSE. publication of the Notice in the Federal and/or section 4975(c)(2) of the Code, Register. Such mailing will contain a the Department must find that the Summary copy of the Notice, as it appears in the exemption is administratively feasible, 22. In summary, Holdings represents Federal Register on the date of in the interests of the plan and of its that the subject transactions satisfy the publication, plus a copy of the participants and beneficiaries, and statutory criteria for an exemption Supplemental Statement, as required, protective of the rights of participants under of section 408(a) of the Act pursuant to 29 CFR 2570.43(a)(2), which and beneficiaries of the plan; because: will advise all interested persons of (3) The proposed exemptions, if (a) The receipt of the Rights by the their right to comment and to request a granted, will be supplemental to, and Plans occurred in connection with the hearing. A11 written comments and/or not in derogation of, any other Offering in which all shareholders of requests for a hearing must be received provisions of the Act and/or the Code, Holdings Stock, including the Plans, by the Department from interested including statutory or administrative were treated in the same manner; persons within 52 days of the exemptions and transitional rules. (b) The acquisition of the Rights by publication of this proposed exemption Furthermore, the fact that a transaction the Plans resulted solely from an in the Federal Register. is subject to an administrative or independent act of Holdings, as a All comments will be made available statutory exemption is not dispositive of corporate entity; to the public. (c) Each shareholder of Holdings whether the transaction is in fact a Warning: Do not include any Stock, including each of the Plans, prohibited transaction; and personally identifiable information received the same proportionate number (4) The proposed exemptions, if (such as name, address, or other contact of Rights based on the number of shares granted, will be subject to the express information) or confidential business of Holdings Stock held by each such condition that the material facts and information that you do not want shareholder; representations contained in each (d) All decisions with regard to the publicly disclosed. All comments may application are true and complete, and holding and disposition of the Rights by be posted on the Internet and can be that each application accurately the Plans were made by the retrieved by most Internet search describes all material terms of the Independent Fiduciary on behalf of the engines. transaction which is the subject of the Plans; FOR FURTHER INFORMATION CONTACT: Ms. exemption. (e) The Independent Fiduciary Blessed Chuksorji-Keefe of the Signed at Washington, DC, this 6th day of determined that it would be in the Department, telephone (202) 693–8567. May, 2016. interest of the Plans to sell all of the (This is not a toll-free number.) Rights received in the Offering by the Lyssa E. Hall, Plans in blind transactions on the General Information Director, Office of Exemption Determinations, NYSE; The attention of interested persons is Employee Benefits Security Administration, (f) No brokerage fees, commissions, directed to the following: U.S. Department of Labor. subscription fees, or other charges were (1) The fact that a transaction is the [FR Doc. 2016–11115 Filed 5–11–16; 8:45 am] paid by the Plans with respect to the subject of an exemption under section BILLING CODE 4510–29–P

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Part IV

Department of Transportation

Federal Aviation Administration 14 CFR Parts 61, 63, 91, Et al. Regulatory Relief: Aviation Training Devices; Pilot Certification, Training, and Pilot Schools; and Other Provisions; Proposed Rule

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DEPARTMENT OF TRANSPORTATION Avenue SE., Washington, DC, between 9 2. Credit for Training Obtained as a Sport a.m. and 5 p.m., Monday through Pilot Federal Aviation Administration Friday, except Federal holidays. E. Pilot School Use of Special Curricula • Fax: Fax comments to Docket Courses for Renewal of Certificate 14 CFR Parts 61, 63, 91, 121, 135, 141 F. Temporary Validation of Flightcrew Operations at 202–493–2251. Members’ Certificates by Part 119 Privacy: In accordance with 5 U.S.C. [Docket No.: FAA–2016–6142; Notice No. Certificate Holders Conducting 16–02] 553(c), DOT solicits comments from the Operations Under Parts 121 or 135 public to better inform its rulemaking G. Military Competence for Flight RIN 2120–AK28 process. DOT posts these comments, Instructors without edit, including any personal H. Use of Aircraft Certificated in the Regulatory Relief: Aviation Training information the commenter provides, to Restricted Category for Pilot Flight Devices; Pilot Certification, Training, http://www.regulations.gov, as Training and Checking and Pilot Schools; and Other described in the system of records I. Single Pilot Operations of Former Provisions Military Airplanes and Other Airplanes notice (DOT/ALL–14 FDMS), which can With Special Airworthiness Certificates AGENCY: Federal Aviation be reviewed at http://www.dot.gov/ J. Technical Correction and Nomenclature Administration (FAA), DOT. privacy. Change Docket: Background documents or ACTION: Notice of proposed rulemaking IV. Discussion of Proposed Effective Dates for comments received may be read at (NPRM). Rule Provisions http://www.regulations.gov at any time. V. Advisory Circulars and other Guidance SUMMARY: This rulemaking would Follow the online instructions for Materials relieve burdens on pilots seeking to accessing the docket or go to the Docket VI. Section-By-Section Discussion of the Operations in Room W12–140 of the Proposed Rule obtain aeronautical experience, training, VII. Regulatory Notices and Analyses and certification by increasing the West Building Ground Floor at 1200 A. Regulatory Evaluation allowed use of aviation training devices. New Jersey Avenue SE, Washington, B. Regulatory Flexibility Determination These training devices have proven to DC, between 9 a.m. and 5 p.m., Monday C. International Trade Impact Assessment be an effective, safe, and affordable through Friday, except Federal holidays. D. Unfunded Mandates Assessment means of obtaining pilot experience. FOR FURTHER INFORMATION CONTACT: E. Paperwork Reduction Act This rulemaking also would address Marcel Bernard, Airmen Certification F. International Compatibility and changing technologies by and Training Branch, Flight Standards Cooperation G. Environmental Analysis accommodating the use of technically Service, AFS–810, Federal Aviation VIII. Executive Order Determinations advanced airplanes as an alternative to Administration, 55 M Street SE., 8th A. Executive Order 13132, Federalism the use of older complex single engine Floor, Washington, DC 20003–3522; B. Executive Order 13211, Regulations airplanes for the commercial pilot telephone (202) 267–1100; email That Significantly Affect Energy Supply, training and testing requirements. [email protected]. Distribution, or Use Additionally, this rulemaking would SUPPLEMENTARY INFORMATION: C. Executive Order 13609, Promoting broaden the opportunities for military International Regulatory Cooperation instructors to obtain civilian ratings Contents IX. Additional Information A. Comments Invited based on military experience, would List of Abbreviations Frequently Used In B. Availability of Rulemaking Documents expand opportunities for logging pilot This Document time, and would remove a burden from I. Executive Summary List of Abbreviations Frequently Used sport pilot instructors by permitting Summary of Proposed Provisions in This Document II. Authority for this Rulemaking them to serve as safety pilots. Finally, III. Discussion of the Proposed Rule AATD—Advanced aviation training device this rulemaking would include changes A. Aviation Training Devices AC—Advisory Circular to some of the provisions established in 1. Instructor Requirement When Using a ATD—Aviation training device an August 2009 final rule. These actions Full Flight Simulator, Flight Training ATP—Airline transport pilot are necessary to bring the regulations in Device, or Aviation Training Device To BATD—Basic aviation training device line with current needs and activities of Complete Instrument Recency FFS—Full flight simulator the general aviation training community Experience FTD—Flight training device and pilots. 2. Instrument Recency Experience FSTD—Flight simulation training device Requirements ICAO—International Civil Aviation DATES: Send comments on or before 3. Instrument Recency Experience for SICs Organization August 10, 2016. Serving in Part 135 Operations IFR—Instrument flight rules ADDRESSES: Send comments identified B. Pilot Certification, Training, and Pilot LOA—Letter of authorization by docket number FAA–2016–6142 Schools LODA—Letter of deviation authority using any of the following methods: 1. Second In Command Time In Part 135 MFD—Multi-function display • Federal eRulemaking Portal: Go to Operations NPRM—Notice of proposed rulemaking 2. Completion of Commercial Pilot http://www.regulations.gov and follow PFD—Primary flight display Training and Testing in Technically PIC—Pilot in command the online instructions for sending your Advanced Airplanes SIC—Second in command comments electronically. i. Definition of Technically Advanced TAA—Technically advanced airplane • Mail: Send comments to Docket Airplane VFR—Visual flight rules Operations, M–30; U.S. Department of ii. Amendment to Aeronautical Experience Transportation (DOT), 1200 New Jersey Requirement for Commercial Pilots I. Executive Summary Avenue SE., Room W12–140, West iii. Amendments to Commercial Pilot and On January 18, 2011, the President Building Ground Floor, Washington, DC Flight Instructor Practical Test Standards signed Executive Order 13563, C. Flight Instructors With Instrument 20590–0001. Improving Regulation and Regulatory • Ratings Only Hand Delivery or Courier: Take D. Light-Sport Aircraft Pilots and Flight Review. Among other things, Section 6 comments to Docket Operations in Instructors of that Executive Order directs agencies Room W12–140 of the West Building 1. Sport Pilot Flight Instructor Training to conduct a retrospective analysis of Ground Floor at 1200 New Jersey Privilege existing rules. Specifically, Executive

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Order 13563 provides that ‘‘[t]o includes proposed amendments that are provided the necessary background facilitate the periodic review of existing consistent with the retrospective information in the separate sections of significant regulations, agencies shall regulatory review requirements of this document that discuss each consider how best to promote Executive Order 13563. The proposed proposed rule change. retrospective analysis of rules that may amendments reduce or relieve existing Summary of Proposed Provisions be outmoded, ineffective, insufficient, burdens on the general aviation or excessively burdensome, and to community. Several of these proposed Table 1 summarizes the provisions modify, streamline, expand, or repeal changes have resulted from suggestions included in this rule, the sections them in accordance with what has been from the general aviation community affected, and the total cost savings learned.’’ through petitions for rulemaking, Consistent with Executive Order (benefits) for a 5-year analysis period. industry/agency meetings, and requests 13563, the FAA routinely evaluates All of the provisions proposed in this for legal interpretation. The proposed existing regulations and other rule are either relieving or voluntary. requirements. The FAA works to changes include increases in the use of For those provisions that are relieving, identify unnecessary, duplicative, or aviation training devices (ATDs), flight no person affected is anticipated to ineffective regulations and to mitigate training devices (FTDs), and full flight incur any costs associated with the the impacts of those regulations, where simulators (FFSs); expanding relieving nature of the provision. The possible, without compromising safety. opportunities for pilots in part 135 FAA assumes that as these provisions As part of the FAA’s continuing operations to log flight time, allowing an are relieving, all persons affected would obligation to review its regulations, the alternative to the complex airplane use the provisions as they would be agency has conducted an analysis of 14 requirement for commercial pilot beneficial. For those proposed CFR parts 61, 91, and 141 to identify training, and permitting pilots to credit provisions that are voluntary, persons provisions that are outmoded, some of their sport pilot training toward who wish to use the new provisions will ineffective, or involve an unnecessary a higher certificate. Because this do so only if the benefit they would burden. This notice of proposed rulemaking includes proposals that accrue from their use exceeds any cost rulemaking (NPRM) is the result of the affect several disparate subject areas they might incur to comply with the FAA’s analysis of its regulations and within the regulations, the FAA has new provision.

TABLE 1—SUMMARY OF PROVISIONS IN THE PROPOSED RULE 1

Total cost savings (benefits) for Provision Summary §§Affected 5-year analysis period

Aviation Training Devices

Instructor requirement when using an Remove the requirement to have an 61.51(g)(5) ...... The cost savings benefits equal about FFS, FTD, or ATD to complete in- instructor present when accom- $12.1 million or $10.6 million in strument recency. plishing flight experience require- present value at a 7 percent dis- ments for instrument recency in an count rate. FAA-approved FFS, FTD, or ATD. Instrument recency experience re- Reduce frequency of instrument 61.57(c), 135.245 ...... The cost savings benefits equal about quirements. recency flight experience accom- $79.4 million or $69.6 million in plished exclusively in ATDs from present value at a 7 percent dis- every two months to every six count rate. months. Reduce number of tasks and remove three-hour flight time requirement when accomplishing instrument recency flight experience in ATDs.

Pilot Certification, Training, and Pilot Schools

Second in command for part 135 op- Allow a pilot to log SIC flight time in a 61.1, 61.39(a), The FAA considers this to be a min- erations. multi-engine airplane in a part 135 61.51(e), (f), imum cost rule with positive, but dif- operation that does not require an 61.159(a), (c), ficult to quantify, benefits. SIC. 61.161, 135.99(c), 61.1, 61.129(a)(3)(ii), appendix D to part 141. Completion of commercial pilot train- Allow TAA to be used to meet some ...... The cost savings benefits equal about ing and testing in technically ad- or all of the currently required 10 $9.7 million or $8 million in present vanced airplanes (TAA). hours of training that must be com- value at a 7 percent discount rate. pleted in a complex or turbine-pow- ered airplane for the single engine commercial pilot certificate. TAA could be used in combination with, or instead of, a complex or turbine- powered airplane to meet the aero- nautical experience requirement and could be used to complete the practical test.

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TABLE 1—SUMMARY OF PROVISIONS IN THE PROPOSED RULE 1—Continued

Total cost savings (benefits) for Provision Summary §§Affected 5-year analysis period

Flight instructors with instrument rat- Remove the requirement that instru- 61.195(b), (c) ...... The cost savings benefits equal about ings only. ment only instructors have category $1.7 million or $1.5 million in and class ratings on their flight in- present value at a 7 percent dis- structor certificates to provide in- count rate. strument training. Sport pilot flight instructor training Allow a sport pilot only instructor to 61.412, 61.415(h), Sport pilot flight instructors who privilege. provide training on control and ma- 91.109(c). choose to receive this endorsement neuvering solely by reference to the have determined that they would be flight instruments (for sport pilot stu- able to recoup this cost by pro- dents only). viding training to sport pilot stu- dents. Credit for training obtained as a sport Allow sport pilot training to be cred- 61.99, 61.109(l) ...... If all 5,259 sport pilots choose to use pilot. ited for certain aeronautical experi- the lower cost option, the cost sav- ence requirements for a higher cer- ings would exceed $8.0 million. We tificate or rating. have used $8.0 million as a one- time event in the benefit-cost anal- ysis. Include special curricula courses in re- Allow part 141 pilot schools to count 141.5(d) ...... This proposed rule provision provides newal of pilot school certificate. FAA approved ‘‘special curricula’’ potential unquantified benefits course completions (graduates of which exceed minimal compliance these courses) toward certificate re- costs. newal requirements.

Other Provisions

Temporary validation of flightcrew Allow a confirmation document issued 61.3(a), 63.3(a), 63.16, This proposed rule would relieve both members’ certificates. by a part 119 certificate holder au- 121.383(c), 135.95. the FAA and stakeholders from the thorized to conduct operations burden of the exemption process, under part 121 or 135 to serve as a which must be completed every two temporary verification of the airman years. The cost savings, while real, certificate and/or medical certificate are small and believed to be de during domestic operations for up minimis. to 72 hours. Military competence for Flight Instruc- Allow the addition of a flight instructor 61.197, 61.199 ...... The cost savings benefits equal about tors. rating based on military com- $1.4 million or $1.2 million in petency to ‘‘simultaneously qualify’’ present value at a 7 percent dis- for the reinstatement of that expired count rate. FAA flight instructor certificate. Restricted Category Aircraft training Allow an operator to request and ob- 91.313 ...... The benefits will exceed costs for and testing allowances. tain a letter of deviation authority to those who choose to comply. conduct training and testing and other directly related activities for employees to obtain a type rating in a restricted category aircraft. Single Pilot Operations of Former Mili- Allow pilots to operate certain large 91.531 ...... The benefits will exceed costs for tary Airplanes and Other Airplanes and turbojet-powered airplanes those who choose to comply. with Special Airworthiness Certifi- (specifically former military and cates. some airplanes not type certificated in the standard category) without a pilot who is designated as SIC.

This rulemaking is promulgated finds, after investigation, that an under the authority described in 49 individual is qualified for, and II. Authority for This Rulemaking U.S.C. 106(f), which establishes the physically able to perform the duties The FAA’s authority to issue rules on authority of the Administrator to related to, the position authorized by aviation safety is found in Title 49 of the promulgate regulations and rules; 49 the certificate. Consistent with this United States Code (49 U.S.C.). Subtitle U.S.C. 44701(a)(5), which requires the authority and with the retrospective I, Section 106 describes the authority of Administrator to promote safe flight of regulatory review requirements of the FAA Administrator. Subtitle VII, civil aircraft in air commerce by Executive Order 13563, this rulemaking Aviation Programs, describes in more prescribing regulations and setting includes certain proposed amendments detail the scope of the agency’s minimum standards for other practices, that would reduce or relieve existing authority. methods, and procedures necessary for burdens on the general aviation safety in air commerce and national community. security; and 49 U.S.C. 44703(a), which 1 The agency recommends that commenters reference the title of the provision to which they are requires the Administrator to prescribe commenting as it appears in the first column of this regulations for the issuance of airman table for ease of reference. certificates when the Administrator

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III. Discussion of the Proposed Rule Since the 2009 final rule, the or property. In this fashion, a pilot can regulations permit ATDs to be used for continue to practice tasks and A. Aviation Training Devices the purpose of satisfying instrument maneuvers in a safe, effective, and cost Since the 1970s, the FAA has recency experience requirements. As set efficient means of maintaining gradually expanded the use of flight forth in § 61.57, pilots who complete proficiency. simulation for training—first permitting instrument recency experience In a recent notice of proposed simulation to be used in air carrier exclusively in ATDs must complete rulemaking (NPRM),4 the FAA proposed training programs and eventually more tasks at more frequent intervals to increase the maximum time that may permitting pilots to credit time in than those pilots who use aircraft, FFSs, be credited in an ATD toward the devices toward the aeronautical and FTDs. aeronautical experience requirements experience requirements for airman Despite the limitations on the use of for an instrument rating under certification and recency. Currently, ATDs that were set forth in the 2009 § 61.65(i). The NPRM proposed to Title 14 of the Code of Federal final rule, the FAA had issued hundreds permit a person to credit a maximum of Regulations (14 CFR) part 60 governs of LOAs to manufacturers of devices 20 hours of aeronautical experience the qualification of flight simulation that permitted ATDs (as well as ground acquired in an approved ATD toward training devices (FSTD) which include trainers, PCATDs, and FTDs (levels 1 the requirements for an instrument FFSs and FTDs levels 4 through 7. The through 3)) to be used to a greater extent rating. By LOA, devices that qualify as FAA has, however, approved other than were ultimately set forth in the AATDs were proposed to be authorized devices including ATDs for use in pilot regulations. Even after publication of for up to 20 hours of experience to meet certification training, under the the 2009 final rule, the FAA continued the instrument time requirements. 2 authority provided in 14 CFR 61.4(c). to issue LOAs in excess of the express Devices that qualify as BATDs were For over 30 years, the FAA has issued limitations in the regulations. On proposed to be authorized, by LOA, for letters of authorization (LOAs) to January 2, 2014, the FAA published a a maximum of 10 hours of experience to manufacturers of ground trainers, notice of policy to reissue LOAs to meet the instrument time requirements. personal computer-based aviation reflect current regulatory requirements. Based on the comments received to training devices (PCATD), FTDs (levels 79 FR 20. The FAA concluded that it the NPRM, the final rule 5 revised 1 through 3), basic aviation training could not use LOAs to exceed express § 61.65 to include a specified allowance devices (BATD), and advanced aviation limitations that had been placed in the of 10 hours for BATDs and 20 hours for training devices (AATD). These LOAs regulations through notice and comment AATDs in part 61 (combined use not to were based on guidance provided in rulemaking. exceed 20 hours) for the instrument advisory circulars that set forth the As discussed further in the following rating. qualifications and capabilities for the two sections, the FAA is proposing to The NPRM also addressed the use of devices. Prior to 2008, most LOAs were amend the regulations governing the use ATDs in approved instrument rating issued under the guidance provided in of ATDs to increase the use of these courses. The NPRM proposed to amend advisory circular AC 61–126, devices for instrument training and appendix C to part 141 to increase the Qualification and Approval of Personal instrument recency experience limit on the amount of training hours Computer-Based Aviation Training requirements above the levels that may be accomplished in an ATD in Devices, and AC 120–45, Airplane established in the 2009 final rule. In an approved course for an instrument Flight Training Device Qualification. developing this proposed rule, the FAA rating. The FAA proposed to allow Since July 2008, the FAA has been notes that ATD development has ATDs to be used for no more than 40% approving devices in accordance with advanced to an impressive level of of the total flight training hour Advisory Circular 61–136, FAA capability. Many ATDs can simulate requirements in an approved instrument Approval of Basic Aviation Training weather conditions with variable winds, rating course. Devices (BATD) and Advanced Aviation variable ceilings and visibility, icing, Based on the comments received to Training Devices (AATD). turbulence, high definition (HD) visuals, the NPRM, the final rule revised In 2009, the FAA issued a final rule hundreds of different equipment failure appendix C to part 141 to include a that for the first time introduced the scenarios, navigation specific to current specified allowance of 25% of creditable term ‘‘aviation training device’’ into the charts and topography, specific time in BATDs 6 and 40% of creditable regulations and placed express limits on navigation and communication time for AATDs under part 141 (not to the amount of instrument time that equipment use, variable ‘‘aircraft exceed 40% total time) for the could be credited in an ATD toward the specific’’ performance, and more. The instrument rating. aeronautical experience requirements visual and motion component of some The FAA is now proposing to define for an instrument rating.3 of these devices permit maneuvers that ATD in § 61.1 as a training device, other require outside visual references in an than a full flight simulator or flight 2 Section 61.4(c) states that the ‘‘Administrator aircraft to be successfully taught in an may approve a device other than a flight simulator training device, that has been evaluated, or flight training device for specific purposes.’’ AATD. Many of these simulation qualified, and approved by the 3 In a 2007 NPRM, the FAA proposed to limit the capabilities were not possible in Administrator. The FAA is proposing to time in a personal computer-based aviation training PCATDs and BATDs that the FAA add a definition of aviation training device that could be credited toward the instrument approved for 10 hours of instrument rating. Pilot, Flight Instructor, and Pilot School device to 61.1 to differentiate ATDs Certification NPRM, 72 FR 5806 (February 7, 2007). time. from FFS and FTDs approved under Three commenters recommended that the FAA use The FAA believes that permitting the terms ‘‘basic aviation training device’’ (BATD) pilots to log increased time in ATDs 4 Aviation Training Device Credit for Pilot and ‘‘advanced aviation training device’’ (AATD). would encourage pilots to practice Pilot, Flight Instructor, and Pilot School Certification, 80 FR 34338 (Jun. 16, 2015). Certification Final Rule, 74 FR 42500 (August 21, maneuvers until they are performed to 5 81 FR 21449 (Apr. 12, 2016). 2009) (‘‘2009 Final Rule’’). In response to the an acceptable level of proficiency. In an 6 If a course of training is approved under the commenters, the FAA changed the regulatory text ATD, a pilot can replay the training minimum requirements as prescribed in part 141 in the final rule to ‘‘aviation training device,’’ scenario, identify any improper action, Appendix C for the instrument rating (35 hours of noting BATDs and AATDs ‘‘as being aviation training required), 25% in a BATD would equate to training devices (ATD) are defined’’ in an advisory and determine corrective actions 8.75 hours and 40% in an AATD would equate to circular. without undue hazard or risk to persons 14 hours.

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part 60 and to establish that an ATD change was not reflected in the accomplishes instrument experience must be approved by the Administrator regulation. exclusively in an ATD, then to be used to meet aeronautical The FAA is proposing to amend § 61.57(c)(3) requires that, within the experience requirements under part 61. § 61.51(g) by revising paragraph (g)(4) preceding two months, the pilot must The FAA will continue to evaluate, and adding a new paragraph (g)(5) to have performed the same tasks and qualify, and approve these devices in allow a pilot to accomplish instrument maneuvers listed previously plus ‘‘two accordance with the guidance set forth recency experience when using an FAA- unusual attitude recoveries while in in AC 61–136, which has been placed in approved FFS, FTD, or ATD—just as he descending Vne airspeed condition and the docket for this rulemaking.7 or she might do when completing two unusual attitude recoveries while in instrument recency experience in an an ascending stall speed condition.’’ 14 1. Instructor Requirement When Using a aircraft—without an instructor present. CFR 61.57(c)(3). Section 61.57(c)(3) also Full Flight Simulator, Flight Training Because instrument recency experience requires a minimum of three hours of Device, or Aviation Training Device To is not training, the FAA no longer instrument recency experience when Complete Instrument Recency believes it is necessary to have an using an ATD, whereas no minimum Experience instructor present when instrument time requirement applies when using an Currently, pilots who perform recency experience is accomplished in aircraft, FFS, or FTD to accomplish the instrument recency experience an FSTD or ATD. An instrument-rated instrument experience. requirements in an aircraft are not pilot has demonstrated proficiency If a pilot accomplishes the instrument required to have an authorized during a practical test with an examiner. recency experience using an ATD in instructor present to observe the time. It can be expensive to hire an instructor combination with using an FFS or FTD, Rather, the pilot can perform the to observe a pilot performing the then the pilot must—when using an required tasks in actual instrument instrument experience requirements ATD—perform the additional tasks but conditions or in simulated instrument solely to verify that the instrument the ‘‘look back’’ period to act as PIC is conditions with a safety pilot on board recency experience was performed.9 As six months rather than two months. 14 the aircraft. A pilot who accomplishes noted above, practice in an ATD has the CFR 61.57(c)(5). The FAA stated in 2009 instrument recency experience in an distinct advantage of pause and review that the more restrictive time limitations FFS, FTD, or ATD, however, must have of pilot performance not available in an and additional tasks were based on the an authorized instructor present to aircraft. fact that, at the time, ATDs represented observe the time and sign the pilot’s As with instrument recency new technology. logbook. 14 CFR 61.51(g)(4). experience accomplished in an aircraft, Since the ATD provisions were added In revising § 61.57 in the 2009 final the pilot would continue to be required to § 61.57 in the 2009 final rule, the rule to include the option of using ATDs to verify and document this time in his FAA has received numerous inquiries or her logbook. The FAA is retaining the for meeting instrument recency regarding the terms used in the rule and requirement that an authorized experience, the preamble indicated that what might be acceptable combinations instructor must be present in an FSTD the FAA did not intend for an when using various aircraft or training or ATD when a pilot is logging time to authorized instructor to be present devices to satisfy the currency meet the requirements of a certificate or during instrument recency experience requirements.11 rating, for example, under §§ 61.51(g)(4), performed in an FSTD or an ATD. It The FAA is proposing to amend 61.65 and 61.129. stated: ‘‘[A] person who is instrument § 61.57(c) to allow pilots to accomplish current or is within the second 6- 2. Instrument Recency Experience instrument experience in ATDs at the calendar month period * * * need not Requirements same 6-month interval allowed for FFSs and FTDs. In addition, the FAA is have a flight instructor or ground Currently, under § 61.57(c), to act as proposing to no longer require those instructor present when accomplishing pilot in command (PIC) of an aircraft pilots who opt to use ATDs exclusively the approaches, holding, and course under instrument flight rules (IFR) or in to accomplish instrument recency intercepting/tracking tasks of weather conditions less than the experience to complete a specific § 61.57(c)(1)(i), (ii), and (iii) in an minimums prescribed for visual flight number of additional hours of approved flight training device or flight rules (VFR), an instrument-rated pilot instrument experience or additional simulator.’’ 74 FR 42500, 42518. In must accomplish instrument experience 2010, the FAA issued a legal (often described as instrument practice, interpretation 8 stating that, based on the in command in IFR or weather conditions less than currency or recency) within a certain the minimums prescribed for VFR but may express language in § 61.51(g)(4), an period preceding the month of the reestablish instrument currency by performing the instructor must be present in order for flight. tasks and maneuvers in § 61.57(c). If a pilot has a pilot to accomplish instrument If a pilot accomplishes the instrument failed to maintain instrument currency for more recency experience in an FSTD or ATD. than six months (meaning it is more than six recency experience in an aircraft, FFS, months since the pilot was instrument current), the That interpretation acknowledged, FTD, or a combination, then pilot may reestablish instrument currency only by however, that the FAA had indicated in § 61.57(c)(1)–(2) requires that, within completing an instrument proficiency check under the 2009 preamble some intention to the preceding 6 months, the pilot must the conditions set forth in § 61.57(d). See Pilot, change the requirement but that the Flight Instructor, and Pilot School Certification; have performed: (1) Six instrument Technical Amendment, 76 FR 78141, 78142 approaches; (2) holding procedures and (December 16, 2011). 7 The FAA will continue to issue LOAs that allow tasks; and (3) intercepting and tracking 11 The FAA notes that it also received comments ATDs to be used to meet other aeronautical courses through the use of navigational requesting clarification of the recency requirements experience requirements in parts 61 and 141, 10 to the ‘‘Aviation Training Device Credit for Pilot including aeronautical experience for pilot electronic systems. If a pilot Certification’’ direct final rule (79 FR 71634, certificates and ratings. Currently, the FAA issues December 3, 2015) (Docket No. FAA–2014–0987, LOAs that allow pilots to credit the same amount 9 The proposal would not change the existing comments at FAA–2014–0987–0004, FAA–2014– of time in ATDs as is currently permitted by requirement to reestablish currency by completing 0987–0022) and the similarly-titled notice of regulation in FSTDs when the rule is silent on ATD an instrument proficiency check under the proposed rulemaking (80 FR 34338, June 16, 2015) allowances. requirements in § 61.57(d). (Docket No. FAA–2015–1846, comments at FAA– 8 Legal Interpretation to Thomas Keller, August 6, 10 A pilot whose instrument currency has been 2015–1846–0034, FAA–2015–1846–0038, FAA– 2010. lapsed for less than six months may not act as pilot 2015–1846–0055). http://www.regulations.gov.

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tasks (in existing § 61.57(c)(3)) to remain airplane is equipped with an autopilot trained and checked SIC to a flight so current. As discussed previously, with approach coupling, flight director, that special SIC operations could be significant improvements in technology boom microphone or headset mounted conducted if the need arose, flight time for these training devices have made it microphone, and a transponder ident accumulated during such an assignment possible to allow pilots to use ATDs for switch on the pilot’s control wheel. may be ‘legally’ logged by the SIC as SIC instrument recency experience at the Likewise, certain operations conducted time, and meet the requirements of same frequency and task level as FSTDs. under part 135 require an SIC even § 61.51(f)(2).’’ The FAA believes that this proposal when the type certification for the In its petition, Ameriflight stated that would encourage pilots to maintain aircraft would not require a second granting this exemption would actively instrument currency, promote safety by pilot.13 For example, under § 135.101 no improve the level of safety because a expanding the options to maintain person may operate an aircraft carrying properly trained and qualified SIC currency, and be cost saving. As passengers under IFR unless there is an enhances safety in the cockpit by (1) proposed, a pilot would be permitted to SIC in the aircraft. Notwithstanding this providing a second set of eyes, (2) complete instrument recency experience requirement, the regulations allow a allowing for better implementation of in any combination of aircraft, FFS, certificate holder to conduct this crew resource management, (3) FTD, or ATD. operation without an SIC provided the encouraging the use of standardized aircraft is equipped with an operative procedures, and (4) helping distribute 3. Instrument Recency Experience for and approved autopilot system and its flying tasks during periods of high SICs Serving in Part 135 Operations use has been authorized by the FAA. 14 workload. Ameriflight further stated Section 135.245(a) requires a person CFR 135.105. that a grant of exemption would be in serving as SIC in a part 135 operation Over the years, several individuals the public interest because SICs conducted under IFR to ‘‘meet the have requested clarification from the assigned to these operations would gain recent instrument experience FAA regarding whether a second pilot real-world line flying experience under requirements of part 61[.]’’ The FAA is may log flight time when an aircraft is supervision of a qualified PIC which it proposing to remove the reference to equipped for operation by a single pilot. claimed was an important element in a part 61 in § 135.245(a) and move the The FAA responded that, because the smooth upgrade to PIC. Ameriflight also current instrument experience aircraft—as equipped—requires a single commented that future airline pilots requirements in § 61.57(c)(1) and (2) to pilot under the type certificate or currently below the § 135.243(c) new § 135.245(c). The use of aviation regulation under which the flight is threshold for PIC 16 would have an training devices is not currently being conducted, then a second pilot is opportunity to gain experience far more permitted to satisfy requirements in part not a required flightcrew member. useful to their careers than other 135. As such, it is more appropriate for Accordingly, a second pilot may not log currently available avenues, such as the express requirement for instrument flight time under § 61.51(f) during those flight instruction, pipeline patrol, and recency experience to be listed in part flights.14 See legal Interpretation to Scott traffic watch. 135 rather than by reference to another Nichols, April 2, 2009; Legal The FAA issued a partial grant of rule part. Interpretation to Jeff Karch, May 28, exemption to allow Ameriflight’s pilots 1998; Legal Interpretation to Jeff Karch, to log SIC time in part 135 operations B. Pilot Certification, Training, and Pilot March 9, 2000. that did not otherwise require an SIC for Schools Petitions for Exemption the purposes of upgrading from SIC to 1. Second in Command Time in Part 135 PIC in those operations. The exemption, Operations On December 18, 2007, Ameriflight, a which has since been renewed,17 does part 119 certificate holder authorized to not permit the flight time to be used to Logging Second-in-Command Time conduct operations under part 135, gain an additional certificate or rating Currently, a person may log second- petitioned the FAA for an exemption under part 61 or to be logged as PIC in-command (SIC) flight time 12 only from § 61.51(f)(2) to allow Ameriflight’s flight time (even if the pilot is the sole when more than one pilot is required SICs to log flight time during a flight manipulator of the controls of the 15 under the type certification of the that otherwise does not require an SIC. aircraft). All pilots utilizing the aircraft or the regulations under which Ameriflight indicated that, if granted, exemption are required to complete the the flight is being conducted. 14 CFR the exemption would apply ‘‘when an certificate holder’s approved SIC 61.51(f). operator elects to assign a properly training program including 3 hours of In some situations, an airplane may be crew resource management training. type certificated for operation either by 13 For instance, no certificate holder may operate The pilots are also required to meet an aircraft without an SIC: (1) If the aircraft has a two pilots or by a single pilot if the passenger seating configuration, excluding any pilot other part 135 experience, airplane has additional equipment seat, of ten seats or more; or (2) the flight is qualifications, and crew pairing specified in the operating limitations conducted in a Category II operation. 14 CFR requirements. Specifically, the SIC must section of the FAA-approved airplane 135.99(b); 135.111. Part 135 has no exceptions to hold a commercial pilot certificate with flight manual. For example, a Cessna the SIC requirement during these operations. 14 The FAA has indicated that an assigned SIC appropriate category, class, and 551 requires two pilots unless the (though not required) may log flight time as PIC under § 61.51(e) as the sole manipulator of the 16 Section 135.243(c) states that no person may 12 ‘‘Flight time’’ is defined, in relevant part, as controls of an aircraft for which the pilot is rated. serve as PIC of an aircraft under IFR unless, among ‘‘pilot time that commences when an aircraft moves The assigned PIC (unless he or she holds an airline other things, that person has ‘‘at least 1,200 hours under its own power for the purpose of flight and transport pilot (ATP) certificate and is acting as PIC of flight time as a pilot, including 500 hours of ends when the aircraft comes to rest after landing.’’ of an operation requiring an ATP certificate) would cross-country flight time, 100 hours of night flight 14 CFR 1.1. ‘‘Pilot time’’ is currently defined as not be able to log flight time concurrently because, time, and 75 hours of actual or simulated ‘‘time in which a person (i) serves as a required under § 61.51(e)(1)(iii), the PIC is not acting as PIC instrument time at least 50 hours of which were in pilot flight crewmember; (ii) receives training from of an aircraft for which more than one pilot is actual flight [.]’’ an authorized instructor in an aircraft, flight required by the type certification of the aircraft or 17 The FAA granted the original petition for simulator, or flight training device; or (iii) gives the regulation under which the flight is being exemption on October 3, 2008, and issued training as an authorized instructor in an aircraft, conducted. extensions on October 29, 2010 (9770A), October flight simulator, or flight training device.’’ 14 CFR 15 Exemption No. 9770; Docket No. FAA–2007– 31, 2012 (9770B), September 30, 2014 (9770C), and 61.1. 0383. http://www.regulations.gov. October 29, 2014 (9770D).

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instrument rating, if applicable. The SIC granting the exemption would close the those pertaining to flight time must complete the same part 135 pilot experience gap between pilots with 300 requirements. The FAA believes that training requirements required for two- flight hours and SICs who must meet any changes to the requirements for pilot crews necessary to conduct the new 1,500 hour experience logging flight time for the purpose of operations consistent with the requirement to qualify for an ATP meeting certification requirements are certificate holder’s operations certificate by providing ‘‘richer and most appropriately achieved through specifications (Ops Specs).18 more varied flying’’ than was otherwise notice and comment rulemaking. available.20 In addition, Ameriflight is required Proposed Rule Change under the exemption to meet certain The FAA published a notice of the recordkeeping requirements and outline petition in the Federal Register. 78 FR Under certain conditions, the FAA all SIC ground and flight duties in its 39824 (July 2, 2013). Thirty comments believes that it would be appropriate to general operations manual and were submitted to the docket.21 Most allow pilots in part 135 operations to log flightcrew operating manual. commenters supported Ameriflight’s time in an airplane or operation that To the extent that Ameriflight had petition arguing that a two-pilot crew is does not otherwise require an SIC. petitioned to permit its pilots to log safer than a one-pilot operation and the The FAA is proposing to amend flight time to meet aeronautical experience gained by the SIC is more § 135.99 by adding paragraph (c) to experience requirements for pilot valuable than experience gained permit a certificate holder to receive certification, the FAA denied that relief through other methods such as banner- approval of an SIC professional stating that the denial was based on a towing, pipeline, or power-line patrol. development program (SIC PDP) via Ops desire to maintain the integrity of the Other commenters noted other benefits Specs in order to allow the certificate higher level airmen certification and such as mentoring by an experienced holder’s pilots to log time under this rating requirements. The FAA granted PIC, a second pair of eyes for safety, proposal. The FAA believes that a comprehensive SIC PDP can provide partial relief because that relief was help in reducing single pilot workload, opportunities for beneficial flight confined to operations conducted solely and the opportunity for hands-on experience that may not otherwise exist within a part 135 certificate holder’s experience that is difficult to obtain and also provide increased safety in operation, and such flight time would otherwise. operations for those flights conducted in only be used to gain experience that Eight commenters raised concerns a multicrew environment. would allow an SIC to upgrade to a PIC about Ameriflight’s petition including the possibility of part 135 operators To ensure that the SIC PDP achieves position within part 135 operations. The these goals, the FAA has set forth in FAA found that such experience has exploiting and charging low-time pilots a fee to gain this SIC experience. Other proposed § 135.99(c) the requirements value in part 135 operations. for certificate holders, airplanes, and On February 7, 2013, Ameriflight commenters suggested that granting the relief was contrary to the new ATP flightcrew members during operations petitioned the FAA to expand the relief certificate requirements and National conducted under an approved SIC PDP. provided in the original partial grant of Transportation Safety Board (NTSB) In addition to the following discussion exemption by again asking for relief to recommendations that are meant to of the proposal, the FAA has placed a permit SICs who were not required by increase the SIC qualifications for air draft advisory circular (AC) in the aircraft certification or the regulation carrier operations. One commenter docket to this rulemaking that provides under which the operation is conducted stated that SIC flight time should not be additional guidance for part 135 to log flight time to meet aeronautical allowed in aircraft type-certificated for operators regarding development and experience requirements for pilot single pilot operations. approval (via Ops Specs) of a SIC PDP. certification under part 61. Ameriflight The FAA denied Ameriflight’s The FAA seeks comments on this restated its arguments regarding the petition to expand the relief to permit proposed AC. value of the flight time and the benefit pilots to log flight time for certification. As proposed, under an approved SIC of building flight time under an Although the FAA believed that the PDP, a certificate holder would have to experienced PIC. Ameriflight added that petitioner and commenters raised valid be authorized to conduct operations the relief was appropriate in light of points regarding the benefit of a second under IFR in multiengine airplanes with Public Law 111–216 (August 1, 2010), pilot in part 135 operations, Ameriflight dual controls and flight instruments. which mandated FAA rulemaking to did not need an exemption to place Because the FAA believes that it is require SICs in part 121 operations to another pilot on board for increased important that the required flightcrew have an airline transport pilot (ATP) safety. Further, the FAA stated that member (i.e., the PIC) have immediate certificate.19 Ameriflight stated that Ameriflight failed to demonstrate how it access to the flight controls at all times, is unique to the general class of the dual controls would not be 18 Ops Specs are paragraphs written and issued to regulated entities and therefore permitted to include a throwover the operator to provide specific requirements for certain FAA approved operations. somehow eligible for regulatory relief. control wheel as proposed in 19 On July 15, 2013, the FAA published the final The FAA has consistently denied § 135.99(c)(2)(i). The airplane would be rule on Pilot Certification and Qualification petitions for exemption from required to have independent flight Requirements for Air Carrier operations certification requirements including instrumentation for a second pilot that implementing these statutory mandates (78 FR 42324) (Pilot Certification rule). As a result of this includes the following instrumentation: action, an SIC in part 121 domestic, flag, and PIC for a part 121 air carrier, the pilot must have (1) Airspeed indicator; (2) sensitive supplemental operations must now hold an ATP logged at least 1,000 flight hours in air carrier altimeter adjustable for barometric certificate and an airplane type rating for the operations. pressure; (3) gyroscopic bank and pitch aircraft to be flown. With a few exceptions based 20 The FAA notes that 250 hours of flight on military and academic experience, an ATP experience are required for a commercial pilot indicator (artificial horizon); (4) certificate requires that a pilot be 23 years of age certificate under § 61.129(a)–(b); the agency believes gyroscopic rate-of-turn indicator and have 1,500 hours total time as a pilot. Further, that Ameriflight referenced ‘‘300 flight hours’’ combined with an integral slip-skid to receive an ATP certificate with a multiengine because a pilot typically would have completed indicator; (5) gyroscopic direction class rating, a pilot must have 50 hours of more than the minimum 250 hours when hired by multiengine flight experience and must have a certificate holder. indicator (directional gyro or completed a new FAA-approved ATP Certification 21 Docket No. FAA–2007–0383. http:// equivalent); (6) vertical speed indicator Training Program (CTP). To upgrade from SIC to www.regulations.gov. (rate-of-climb) for IFR operations

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carrying passengers; and (7) course and policies to be used by the flight, under an SIC PDP would be exercising guidance for en route navigation and ground and maintenance personnel. 14 the privileges of a commercial pilot instrument approaches. In addition, the CFR 135.21. In addition, these certificate, they would be required to SIC would need to have independent certificate holders are not required to hold a second class medical certificate. instrumentation required by the establish and maintain an approved 14 CFR 61.23. A pilot logging time certificate holder’s Ops Specs. The FAA pilot training program under § 135.341 under this proposal would be required acknowledges that the proposed or employ certain management to complete the requirements of an instrumentation is not currently personnel (e.g., Director of Operations, approved SIC training and checking required for SICs who are required by Chief Pilot) under § 119.69. Because of program for any airplane in which the regulation. The FAA believes, however, the limited size and scope of these pilot would serve. Because the pilot that the proposed instrumentation is the certificate holders’ operations, the FAA would be serving in a multicrew minimum necessary for an SIC assigned does not believe that they would environment, this training would under an SIC PDP to be actively engaged provide the environment necessary to include crew resource management as a pilot flying and pilot monitoring in foster an SIC PDP. training required under § 135.330. An both VFR and IFR conditions and would The FAA is also proposing in assigned SIC also would be required to ensure that these SICs obtain the § 135.99(c)(1) to require a certificate complete any training required by the relevant type of multipilot, multiengine holder with an approved SIC PDP to certificate holder’s Ops Specs for the experience envisioned by Public Law maintain records for each pilot operation being conducted, such as 111–216. The FAA seeks specific consistent with the requirements in operations in reduced vertical comment on the impact of these § 135.63 and provide training and separation minimum airspace. proposed instrumentation requirements testing records upon request to any pilot The FAA emphasizes that, under this on part 135 operators who would be who the certificate holder has assigned proposal, an SIC assigned to duty under interested in obtaining approval of an to serve as SIC under its program. an SIC PDP would be subject to part 135 SIC PDP. Additionally, the certificate holder requirements as though the pilot were Consistent with existing obligations would be required to establish and required by aircraft certification or under part 135, certificate holders maintain a data collection and analysis regulation. For example, under the would be required to have: (1) A manual process that would permit the certificate proposal, the assigned SIC would be containing standard operating holder and FAA to determine whether subject to flight time and duty period procedures (SOP) for conducting the SIC PDP is accomplishing its limitations and rest requirements under operations with a two pilot flightcrew objectives. The proposed data collection subpart F of part 135. Under part 135, and setting forth the duties and and analysis process could be based off these requirements can differ based on responsibilities of an SIC; (2) approved a certificate holder’s existing voluntary the flightcrew complement. As such, a SIC training curriculums; 22 (3) safety management system or internal certificate holder would be expected to approved flight instructor (aircraft) evaluation program. As proposed in treat duty and rest periods for a two- training curriculums; and (4) initial and § 135.99(c)(1)(iv), a certificate holder pilot crew conducted under an SIC PDP recurrent crew resource management who obtains approval of an SIC PDP no differently than those for pilots (CRM) training for any pilot assigned to would be required to conduct annual serving in operations requiring two an operation consisting of more than standardization meetings for all flight pilots by aircraft certification or one pilot flightcrew member.23 The instructors serving as PIC during regulation. In addition, the FAA would assigned SIC would be expected to operations conducted under an SIC consider a pilot assigned to serve as SIC perform the functions normally assigned PDP. The FAA believes that under an SIC PDP to be a covered to an SIC in an aircraft requiring two standardization meetings would provide employee performing a safety sensitive flightcrew members, such as an additional mechanism to assess the function subject to drug and alcohol communications, navigation, flight effectiveness of the SIC PDP and review testing requirements in part 120. management, briefing, departure, performance of participating SICs. The FAA emphasizes that the SIC arrival, and approach procedures, Under proposed § 135.99(c)(4), an PDP would be voluntary. This proposal inspections and checklists, and, at assigned PIC in an operation conducted would impose no new requirements on times, sole manipulator of the flight under an SIC PDP must be an certificate holders conducting controls. authorized part 135 flight instructor for operations under part 135 if they choose As proposed in § 135.99(d), certificate the certificate holder. To serve as an not to seek approval of an SIC PDP. holders who are authorized to operate as assigned SIC under an SIC PDP, a pilot However, only pilots employed by a a basic operator, single PIC operator, or would be required to meet the same certificate holder that has an approved single pilot operator would not be certification, qualification, training, SIC PDP would be permitted to log SIC permitted to obtain approval to conduct checking, and testing requirements in flight time in part 135 operations when an SIC PDP. These certificate holders— part 135 as a required SIC.24 a second pilot is not required by the either by regulation or deviation—are Accordingly, an assigned SIC would be aircraft certification or the regulation not required to develop and maintain required to hold a commercial pilot under which the flight is being manuals that describe the procedures certificate with appropriate category and conducted. If a certificate holder does class ratings and an instrument rating. not have an approved SIC PDP and 22 The FAA would require certificate holders who 14 CFR 135.245. Because pilots serving assigns a second pilot to an operation exclusively conduct operations that require only a that does not require two pilots, that PIC to obtain approval of an SIC training program 24 Consistent with current regulations, if a pilot may not log flight time under consistent with the requirements for SICs under certificate holder is authorized under § 135.3(c) to § 61.51. part 135. comply with the applicable sections of subparts N 23 Because a certificate holder who elects to and O of part 121 instead of the comparable If conducted in accordance with an conduct operations with an SIC would still have the requirements in part 135, the assigned SIC would approved SIC PDP, the flight time option to conduct operations with a single pilot, the be required to meet the certification, qualification, accomplished by those pilots serving as FAA would require certificate holders to provide training and checking requirements required by SIC could be counted toward the total training on both single pilot resource management subparts N and O of part 121, except for the airline and crew resource management as part of the transport pilot certification requirements in flight time required for an ATP certificate holder’s training and checking program. § 121.436. See 81 FR 1 (January 4, 2016). certificate under §§ 61.159(a), 61.160,

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and 61.161.25 As proposed in crew configuration would create Organization (ICAO) standards do not § 61.159(c)(1), pilots who log time under valuable experience. This proposal recognize the crediting of flight time this provision would not be permitted to would provide an additional option for when a pilot is not required by the use the time to meet the more specific commercial pilots seeking to meet the aircraft certification or the operation flight time requirements for ATP minimum aeronautical experience under which the flight is being certification (e.g., cross-country flight requirements for the ATP certificate conducted, pilots who rely on flight time, night flight time) set forth in while also providing a strong time logged under an SIC PDP to meet § 61.159(a)(1) through (5).26 Rather, a foundational experience for a the requirements for an ATP certificate pilot would be required to satisfy these developing professional pilot. must have a limitation on their ATP specific aeronautical experience The FAA is proposing to revise certificates indicating that they do not requirements during his or her time as § 61.159(c)(1) to set forth the meet the PIC aeronautical experience a required pilot flightcrew member. This requirements for logging SIC pilot time requirements of ICAO. This limitation limitation on applying time logged in an operation that does not require an may be removed when the pilot presents under this provision only toward the SIC by type certification of the aircraft satisfactory evidence that he or she has total time requirement for an ATP or the regulations under which the flight met the ICAO standards. certificate is consistent with the current is being conducted. Current § 61.159(c) Because of the ICAO limitation, it is limitation for SICs and flight engineers (former § 61.145) was first added to the important that flight time logged under in § 61.159(c). The FAA believes that by regulations in a 1969 final rule. 34 FR this proposal is accurately recorded in allowing this time to be used only 17162 (October 23, 1969). Until that the pilot’s logbook. For that reason, the toward total flight time requirements for time, SICs were permitted to log only 50 FAA has proposed § 61.159(c)(1)(ii) the ATP certificate, it would promote an percent of their flight time toward a which would require the PIC to certify environment in which a pilot’s career certificate or rating. The 1969 final rule in the SICs logbook that the flight time follows a progression within part 135 permitted SICs in part 121 operations to was accomplished under the that includes the pilot serving as a PIC log 100 percent of their flight time in requirements in § 61.159(c)(1). As in part 135 operations before airplanes required to have more than currently happens, a designated pilot transitioning to an SIC position in a part one pilot by their approved airplane examiner, aircrew program designee, or 121 operation. flight manual or airworthiness FAA inspector when validating the 27 In proposing this change to pilot time certificate. pilot’s flight time would be responsible logging allowances, the FAA is In 1973, the FAA revised § 61.51 for noting an ICAO limitation on a acknowledging the value of the pilot (former § 61.39) to permit all SICs—not temporary airman certificate (Form experience gained by airmen who have just those in part 121 operations—to log 8060–4). In addition, the FAA is been properly trained to serve as SIC in 100 percent of flight time as SIC in proposing to revise Form 8710–1 aircraft on which more than one pilot is the air carrier environment. In Public (Airman Certification and/or Rating required by the type certification of the Law 111–216, Congress directed the Application) to include this time in the aircraft or the regulations under which 29 FAA to ensure that applicants for an record of pilot time section. The FAA the flight is conducted. 38 FR 3156 ATP certificate have received flight is proposing to add a provision to (February 1, 1973). When the FAA training, academic training, or § 61.39 that would require a pilot who expanded § 61.51 to include all SICs, it operational experience that will prepare has logged flight time under did not remove the more limited the pilot to, among other things, § 61.159(c)(1) to present a copy of the provision that applied only to part 121 records required by § 135.63(a)(4)(vi) function effectively in a multipilot SICs in § 61.159(c)(1). Because that and (x) at the time of application for the environment, adhere to the highest paragraph provides the same allowance practical test. professional standards, and function for logging SIC flight time as is currently As proposed in § 61.159(c), an SIC effectively in an air carrier operational reflected in § 61.51(f), the FAA is logging time under this provision would environment. In addition, the Public proposing to revise § 61.159(c)(1) to not be permitted to log this flight time Law directed that all part 121 flightcrew address the logging requirements for as PIC time even when he or she is the members must have an appropriate SICs in part 135 operations who are not sole manipulator of the controls. The amount of multiengine flight required by type certification or the FAA is proposing, however, to revise experience, as determined by the regulations under which the flight is § 61.51(e) to allow the part 135 flight Administrator. being conducted. instructor serving as PIC to log all of the The FAA believes, within an The FAA is also proposing to revise flight time as PIC flight time even when appropriate training and mentoring the definition of pilot time in § 61.1 and the PIC is not the sole manipulator of environment, this proposal would the logging requirements in § 61.51(f) to the controls. Section 61.51(e)(1) permits support the Congressional directive and reflect the allowance for SICs to log a person who holds a sport, recreational, provide an effective method to acquire flight time in part 135 operations when private, commercial, or airline transport experience for ATP certification and not serving as required flightcrew pilot certificate to log PIC time when the prepare pilots for a career as a members under the type certificate or pilot (1) is the sole manipulator of the professional pilot. The experience regulations.28 The FAA notes that, controls of an aircraft for which the gained from working with and learning because International Civil Aviation pilot is rated; (2) is the sole occupant of from a part 135 flight instructor in a the aircraft, (3) is acting as PIC of an 27 That final rule also added a provision that aircraft that requires more than one pilot 25 The FAA is proposing to revise § 61.161 to permitted flight engineers to log a portion of their by type certificate or the regulations permit flight time logged under an SIC PDP to be flight engineer time toward the flight hour counted toward the 1,200 hours of total flight time requirements for an ATP certificate. under which the flight is being required for an ATP certificate with a rotorcraft 28 The FAA also proposes to revise the definition category helicopter class rating. of ‘‘pilot time’’ in § 61.1 to include training time 29 The FAA anticipates it would revise FAA form 26 As currently provided in the Ameriflight from an authorized instructor in aviation training 8710–1 as appropriate at the final rule stage to exemption, pilots logging time under this proposal devices within the definition. The FAA likewise include a column or block where the total number would be permitted to use the flight time for the proposes to add aviation training devices to of hours accomplished under § 61.159(c)(1) could purpose of upgrading from SIC to PIC in part 135 § 61.51(h) to accommodate the logging of training be recorded along with the notice of the ICAO operations. Exemption No. 9770D. time in an aviation training device. limitation.

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conducted, or (4) is undergoing an Many pilots seeking a commercial cockpits,’’ 35 which are also referred to approved pilot-in-command training pilot certificate in the airplane category as technically advanced aircraft program and is performing the duties of take the initial practical test in a single (TAA).36 pilot in command while under the engine airplane. Training providers The FAA received a variety of supervision of a pilot in command. In have noted that there are far fewer comments in response to the proposed addition, the holder of an ATP single engine complex airplanes change. Although several commenters certificate who is rated to act as PIC may available to meet the practical test supported the change based on the high log all flight time while acting as pilot standards requirement, and the single cost of maintaining older single engine in command of an operation requiring engine complex airplanes that are complex airplanes and the perceived an ATP certificate. 14 CFR 61.51(e)(2).30 available are older aircraft that are value of requiring additional instrument Without the proposed change to expensive to maintain. The FAA training, other commenters opposed the § 61.51(e), the part 135 flight instructor recognizes that accomplishing the change citing the potential for an would not be permitted to log PIC flight required training in either a single increase in gear-up landing incidents time during those times when the SIC is engine complex airplane or turbine- and the fact that training in a complex the sole manipulator of the controls powered airplane has become cost airplane is essential for safety because because the PIC of these operations prohibitive for most flight schools. most pilots will encounter a complex would not be acting as PIC of an aircraft Because § 61.45(b) requires a pilot to airplane during their careers. The FAA that requires more than one pilot. accomplish the practical test in an withdrew the proposed changes in the final rule citing the need to further 2. Completion of Commercial Pilot aircraft that is the appropriate category, class, and type (if applicable), pilots are analyze the comments received on the Training and Testing in Technically proposed revision. 76 FR 54096 (August Advanced Airplanes not permitted to use a more readily available multiengine complex airplane 31, 2011). The FAA noted that it would Introduction during the single engine practical test at consider the matter further and possibly Under the current requirements, an the commercial pilot level to publish an NPRM in the future. applicant for a commercial pilot accomplish the tasks and maneuvers Basis for Current Proposal certificate with airplane category single 34 that require a complex airplane. Since the 2011 final rule, various pilot engine class rating must accomplish 10 Currently it is permissible for an hours of flight training in a complex associations have made public applicant to take his or her initial statements on behalf of their members, airplane 31 or in a turbine-powered commercial pilot practical test for the airplane.32 14 CFR 61.129(a)(3)(ii), expressing disappointment in the airplane category in the multiengine agency’s decision to withdraw the appendix D to part 141. In addition, the class and then seek an additional rating Commercial Pilot Practical Test proposal set forth in the 2009 NPRM. in the airplane single engine class, Various individuals and pilot Standards for Airplane (as well as the thereby avoiding the difficulty of Flight Instructor Practical Test organizations have reiterated concern furnishing a single engine complex over the costs associated with the Standards for Airplane) require a pilot airplane. However, the FAA notes that to use a complex airplane for takeoff upkeep of aging complex single engine many pilots often do not apply for their airplanes that are unavailable (or are and landing maneuvers and appropriate initial commercial pilot certificate with emergency tasks for the initial practical cost prohibitive) due to the decrease or a multiengine class rating because of the discontinuance of manufacture of these test for a commercial pilot certificate higher cost associated with gaining the with an airplane category.33 aircraft. The FAA has also received aeronautical experience required by multiple exemption requests that seek § 61.129(b)(3) and (4) in a multiengine 30 Currently, pilots are required to hold an ATP relief from § 61.45(b) and the certificate to act as PIC in part 121 air carrier airplane. requirement to use a single engine operations. Additionally, pilots must hold an ATP Related Rulemaking History complex airplane during the certificate to serve as PIC in operations conducted commercial and flight instructor under §§ 135.243(a)(1) and 91.1053(a)(2)(i). On August 31, 2009, the FAA 31 A complex airplane is defined as an aircraft practical tests. While these requests with a retractable landing gear, flaps, and a published a NPRM in the Federal have been denied because they have not controllable pitch propeller, including airplanes Register that proposed to replace the met the regulatory criteria for an equipped with an engine control system consisting requirement for training in a complex exemption, they provide additional of a digital computer and associated accessories for airplane for commercial pilot applicants controlling the engine and propeller. 14 CFR 61.1. 32 This option was added to the regulations in (both single engine and multiengine 35 ‘‘Glass Cockpits’’ refer to an aircraft with a 1997. Pilot, Flight Instructor, Ground Instructor and ratings) with a requirement for flight deck LCD display system that incorporates a Pilot School Certification Rules final rule, 62 FR advanced instrument training. Pilot in combined flight instrument information that 16220, April 4, 1997. In the preamble to the NPRM, command proficiency Check and Other includes navigation information. An example is a the FAA explained that ‘‘some commercial pilot primary and multifunction flight display. (PFD and applicants may wish to complete their training in Changes to the Pilot and Pilot School MFD systems). This can include an integrated turbine-powered airplanes, and some military pilots Certification Rules NPRM, 74 FR 44779. autopilot. Reference Instrument Flying Handbook may not have demonstrated procedures pertaining In discussing the proposed change, the FAA–H–8083–15B Chp. 8 pg 18. to the use of a controllable pitch propeller. Because FAA noted the complaints by training 36 The General Aviation Technically Advanced a turbine-powered airplane does not necessarily Aircraft FAA—Industry Safety Study published have a propeller, training and demonstration of providers regarding the necessity to August 22, 2003, defines TAA as aircraft with a flight proficiency in such an airplane does not maintain older single engine complex minimum of an IFR-certified GPS navigation system satisfy existing requirements. However, a turbine- airplanes. The FAA also acknowledged with a moving map display, and an integrated powered airplane clearly meets the regulatory in the NPRM that general aviation autopilot. Most include a primary flight display that intent of requiring an applicant to demonstrate integrates all of the following flight instruments proficiency in a relatively complex airplane.’’ 60 FR aircraft manufacturers are no longer together: Airspeed indicator, turn coordinator, 41160. producing as many single engine attitude indicator, directional gyro, altimeter, and 33 The Commercial Practical Test Standards airplanes with retractable gear but are vertical speed indicator. Some TAAs also have a (FAA–S–8081–12C) for Airplane states that the instead producing aircraft with ‘‘glass multi-function display that shows weather, traffic applicant must furnish a complex airplane ‘‘unless and terrain graphics. In general, TAAs are aircraft the applicant currently holds a commercial pilot in which the pilot interfaces with one or more certificate with a single engine or multiengine class 34 See Legal Interpretation to Ian Robert Dean, computers in order to aviate, navigate, or rating, as appropriate.’’ February 15, 2013. communicate.

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examples of ongoing industry concern This trend toward exclusive contains the following design features: over the lack of flexibility provided by production of airplanes with glass Advanced automated cockpit such as the current requirement to furnish a cockpits (TAA) is due to an increase in MFD or PFD or other variations of a complex single engine airplane for use demand for advanced avionics cockpit Glass Cockpit, or a traditional cockpit during training and testing for these platforms by general aviation with GPS navigation capability, moving certificates and ratings. consumers.39 At the same time, there map display and autopilot.’’ 43 The FAA With the prominence of airplanes has been a significant decrease in the is proposing to require a certain level of equipped with glass cockpits (i.e., TAA) production of single engine complex complexity for TAA by proposing to in today’s general aviation aircraft fleet, airplanes.40 The FAA understands the define TAA in the regulations and, the FAA believes it is appropriate to decrease in single engine complex thereby, mandating certain permit the use of certain TAA to airplane manufacturing is due, at least functionalities when used for complete the training required in in part, to newer airframe and power commercial pilot training and the § 61.129(a)(3)(ii) and appendix D to part plant technologies that allow for aircraft practical test. 141 as well as to meet the requirements to achieve higher performance (e.g., Notwithstanding the previous use of of the commercial single engine airplane airspeed, reduced fuel consumption, terms such as glass cockpit and pilot and flight instructor practical test etc.) without the manufacturing and electronic flight instrument displays, standards. maintenance costs associated with a the FAA is proposing to adopt an updated definition of ‘‘technically i. Definition of Technically Advanced retractable gear system that is characteristic of a complex airplane. advanced airplane’’ in § 61.1 based on Airplane Cirrus Aircraft has delivered 5,326 the common and essential components The FAA recognizes the emerging and aircraft with this fixed gear of advanced avionics systems equipped continuing trend in general aviation configuration as of 2012.41 on the airplane, including a PFD, MFD aircraft manufacturing to produce most To date, the FAA has primarily used and an integrated two axis autopilot. new aircraft with advanced avionics the term ‘‘glass cockpits’’ when referring These components would be required in systems. The previously typical to airplanes equipped with these order to ensure the TAA used to meet individual six-flight instrument advanced avionics components such as the aeronautical experience configuration (six-pack) is becoming a primary flight display (PFD) and requirements for commercial pilots in unavailable in current general aviation multi-function display (MFD). For § 61.129(a)(3)(ii) and appendix D to part manufacturing. The NTSB safety study example, the Instrument Flying 141, as well as the related practical test Introduction of Glass Cockpit Avionics Handbook acknowledges that PFDs and standards, as amended, have the Into Light Aircraft published in 2010 MFDs ‘‘are changing not only what necessary level of complexity indicated that ‘‘the transition to glass information is available to a pilot but comparable to the traditional single cockpits in Federal Aviation also how that information is displayed.’’ engine complex airplane. Administration (FAA)-certified light Moreover, the executive summary to the TAA would be required to include a aircraft’’ began in 2003 when Cirrus NTSB’s Introduction of Glass Cockpit PFD that is an electronic display Design Corporation started delivering Avionics in Light Aircraft, provides that integrating all of the following flight single-engine piston airplanes with ‘‘in a span of only a few years, the instruments together: An airspeed electronic primary flight displays (PFD). cockpits of new light aircraft have indicator, turn coordinator, attitude Other manufacturers, including Cessna undergone a transition from indicator, heading indicator, altimeter, Aircraft Company, Piper Aircraft conventional analog flight instruments and vertical speed indicator. Incorporated, Mooney, and Hawker to digital-based electronic displays,’’ Additionally, an independent MFD Beechcraft soon followed suit. The which ‘‘integrate aircraft control, must be installed that provides a GPS NTSB study further referenced General autopilot, communication, navigation, with moving map navigation system and Aviation Manufacturers Association and aircraft system monitoring an integrated two axis autopilot.44 In data showing that ‘‘by 2006, more than functions, applying technology general, the pilot interfaces with one or 90 percent of new piston-powered, light previously available only in transport- more computers in order to operate, airplanes were equipped with full glass category aircraft.’’ 42 navigate, or communicate. The cockpit displays.’’ 37 Indeed, the Cessna In an FAA-Industry Safety Study proposed definition of TAA would Aircraft Corporation has produced published in 2003, the FAA defined apply to permanently-installed ‘‘glass cockpit only’’ piston driven TAA as ‘‘a General Aviation aircraft that equipment and would not apply to any aircraft since 2006. According to the portable electronic device. The FAA General Aviation Manufacturers indicator, altimeter, turn coordinator, heading recognizes the continuing advancements indicator, and vertical speed indicator. Association, these Cessna piston aircraft in aircraft avionics and the need for a 39 An Aircraft Owners and Pilots Association Air pilot to be proficient with modern totaled 3,696, as delivered through Safety Foundation Special Report titled 2012. Piper Aircraft Inc. also delivers ‘‘Technically Advanced Aircraft—Safety and cockpit equipment and automation. As almost exclusively glass cockpit Training’’ states ‘‘virtually every newly designed proposed, the FAA would define the transportation airplane is a TAA, including Lancair, term TAA as an airplane with an configurations, except for some limited Cirrus, Diamond, and the Adam 500 * * * Many requests from international flight school owners are retrofitting their classic aircraft to electronic PFD and an MFD that customers for the previously traditional convert them to TAA with IFR-certified GPS includes, at a minimum, a GPS moving independent six-flight instrument navigators and multifunction displays.’’ 40 The General Aviation Manufacturers 43 configuration.38 General Aviation Technically Advanced Association Web site shows Cessna has not Aircraft, FAA-Industry Safety Study: Final Report produced a piston engine retractable gear airplane of TAA Safety Study Team, http://www.faa.gov/ 37 General Aviation Airplane Shipment Report, since 1985 and Piper has produced only 28 piston training_testing/training/fits/research/media/ End-of-Year 2006 (Washington, DC: General engine airplanes with retractable gear since 2008 TAAFinalReport.pdf (Washington, DC: Federal Aviation Manufacturers Association, 2007) (16 being the Piper Arrow model). Production for Aviation Administration, 2003). indicates that 92 percent of the 2,540 piston Beechcraft is also at an all-time low for piston single 44 The MFD may also include additional airplanes delivered during 2006 were equipped engine airplanes with retractable gear. capabilities such as depicting weather, traffic, with glass cockpit electronic flight displays. 41 General Aviation Manufacturers Association terrain, navigation aids and airport information, but 38 The six-flight instrument configuration published statistics (http://www.gama.aero/). these capabilities are not necessary to meet the includes a separate airspeed indicator, attitude 42 NTSB Safety Study # SS–10/01. proposed definition.

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map navigation and integrated two-axis Complex airplanes, turbine-powered need to continue to demonstrate skill autopilot. airplanes, and TAA all require the and proficiency in a complex airplane In addition to adding a definition of commercial pilot applicant to have an as defined in the practical test TAA to § 61.1, the FAA is proposing to understanding of aircraft systems that standards. For that reason, the FAA is amend the existing training are more complicated than the aircraft not proposing to make any related requirements to permit the use of a TAA systems found in more basic airplanes substantive revisions to the requirement instead of a complex or turbine-powered that most private pilots learn to fly. to use a complex or turbine-powered airplane by commercial pilot applicants Operation of a complex airplane airplane to complete the training seeking an airplane category single requires the pilot to perform advanced required for multiengine airplanes in engine class rating. In addition to the plans of action with the gear, flaps, and § 61.129(b)(3)(ii) and appendix D to part regulatory changes, the FAA would propeller control in certain phases of 141, other than clarifying amendments revise the practical test standards for flight (such as takeoff, landing, and to eliminate redundancies in the current commercial pilot applicants and flight emergency procedures). Failure to regulatory text. As noted, the vast instructors seeking an airplane category perform the correct action in a complex majority of multiengine airplanes are single engine class rating. airplane could result in a degradation of complex, and there should be no the safety of flight, such as a gear up significant burden on these applicants ii. Amendment to Aeronautical landing or achieving maximum aircraft to provide a multiengine complex Experience Requirement for Commercial performance during climb after takeoff. airplane for the multiengine practical Pilots Similarly, a TAA demands the pilot test. The FAA proposes to amend the perform functions with the advanced iii. Amendments to Commercial Pilot current requirement found in avionics such as programing, entering and Flight Instructor Practical Test § 61.129(a)(3)(ii) and appendix D to part flight plans and autopilot management. Standards 141 to complete 10 hours of training in If not accomplished in an efficient, a complex or turbine-powered airplane. proper, and timely manner, there is the The FAA notes that the proposed As proposed, the FAA would permit a potential for a loss of safety during the amendments to § 61.129(a)(3)(ii) and pilot seeking a commercial pilot flight. appendix D to part 141 necessitate certificate with an airplane category As another example, the failure of the coordinated revisions to the practical single engine class rating to complete pilot to recognize and respond properly test standards for commercial pilots and the 10 hours of training in a TAA. With to a failure of either the PFD or the MFD flight instructors. The Commercial Pilot this amendment, a pilot seeking a at a critical phase of flight (especially Practical Test Standards for Airplane commercial pilot certificate with a during marginal VFR conditions or require a pilot to use a complex airplane single engine class rating could instrument meteorological conditions for takeoff and landing maneuvers and complete all 10 hours in a complex (IMC)) could result in the pilot losing appropriate emergency tasks for the airplane, a turbine-powered airplane, or situational awareness and possibly initial practical test for a commercial a TAA, or could complete the 10 hours leading to loss of control jeopardizing pilot certificate with an airplane of training in any combination of these the successful completion of the flight. category. Similarly, the Flight Instructor three airplanes. The FAA believes that The FAA believes that demonstrating Practical Test Standards for Airplane demonstration of proficiency in an proficiency when operating a TAA require an instructor candidate to use a airplane that is electronically complex provides at least an equivalent level of complex airplane for the performance of (i.e., those that would meet the complexity compared to a complex takeoff and landing maneuvers as well proposed definition of a TAA) will be airplane. Indeed, newly hired as appropriate emergency procedures. comparable to the demonstration of operations aviation safety inspectors are Because an applicant for a proficiency in an airplane that is required to complete three weeks of commercial pilot certificate with an mechanically complex (i.e., those that glass cockpit training (in TAA). This airplane category single engine class meet the current definition of a complex commitment to TAA training reflects rating would no longer be required to airplane). the FAA’s acknowledgment of the complete training in a complex airplane, Providing the TAA alternative to the importance of developing skills, the FAA would revise the practical test training requirements for a commercial understanding the complexity, and standards to permit the use of a TAA in pilot certificate with an airplane demonstrating knowledge required to place of a complex or turbine-powered category single engine class rating is safely operate these airplanes. airplane during the single engine appropriate because advanced avionics The proposed amendments to airplane practical test. The FAA would in TAA create a level of complexity that § 61.129(a)(3)(ii) and appendix D to part also revise the flight instructor single would be equal to or greater than the 141 for single engine airplane ratings do engine airplane practical test standards mechanical complexity found in not impose any new regulatory to permit the flight instructor applicant traditional complex airplanes. The FAA requirements on pilots or part 141 pilot to use a TAA during the practical test. 46 contends that, as avionics continue to schools. The FAA believes that The FAA acknowledges that no longer advance, the need for training and applicants for the commercial pilot requiring flight instructors seeking an checking in other categories of aircraft practical test or flight instructor airplane category single engine class equipped with advanced avionics practical test for a multiengine rating rating to take the practical test in a systems will continue to grow. Further, complex airplane could result in a flight the FAA emphasizes the importance of applications for existing, widely-used technologies, instructor not being evaluated such as the Global Positioning System (GPS) and specifically on complex airplane tasks pilot and flight instructor proficiency in technological innovation in areas such as weather the advanced aircraft systems that are forecasting, data networking and digital and maneuvers. Although under the proposed rule an essential to the FAA’s NextGen communications. 46 Although commercial pilots who hold airplane instructor would not necessarily be initiatives.45 category single engine class ratings may not have evaluated during the practical test in a been trained or tested in a complex airplane, they complex airplane, the FAA believes that 45 FAA publication ‘‘NextGen Implementation would be required to obtain training and an Plan March 2012’’ or latest version. NextGen endorsement under § 61.31 in order to act as PIC the current training and endorsement involves development of aviation-specific of a complex airplane. required to act as PIC of a complex

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airplane set forth in § 61.31, in instrument rating on his or her flight provide instrument training in any class conjunction with the flight instructor’s instructor certificate. 74 FR 42500, of airplane with only an instrument- demonstrated knowledge of the 42561. In disposing of comments to the airplane rating on the flight instructor fundamentals of instruction, is NPRM, the FAA made the following certificate so long as the person sufficient to ensure that type of training statement: ‘‘. . . a flight instructor who receiving instruction holds category and is provided effectively. The FAA notes does not hold the appropriate airplane class ratings for the aircraft in which the that this ability to provide training multiengine rating on his/her flight instruction is being given. In such without having been evaluated on a instructor certificate and the appropriate instances where guidance is practical test is consistent with other airplane category multiengine class inconsistent with a regulation, the § 61.31 endorsements including high rating on his/her pilot certificate may regulation controls. performance aircraft, tailwheel aircraft, not conduct instrument training in a However, due to the confusion or high altitude operations. multiengine airplane unless that flight between the regulation and guidance instructor holds the appropriate regarding the qualifications of a flight C. Flight Instructors With Instrument airplane category multiengine class Ratings Only instructor who is providing instrument rating on his/her pilot certificate and training, the FAA is proposing to revise Section 61.195 sets forth the flight instructor certificate.’’ 74 FR § 61.195. Specifically, the FAA is limitations and qualifications for flight 42500, 42536. proposing to revise § 61.195(b) and (c) to instructors. Under § 61.195(b), an Shortly after the final rule published, permit a flight instructor who holds instructor may not conduct flight the FAA received a request for legal only an instrument-airplane rating or training 47 in any aircraft for which the interpretation seeking clarification of instrument-helicopter rating on his or instructor does not hold a pilot whether a flight instructor who holds her flight instructor certificate to certificate and flight instructor only an instrument-airplane rating on provide instrument training in an certificate with the applicable category his or her flight instructor certificate aircraft, flight simulation training device and class ratings for the aircraft in may conduct instrument training in a (which includes full flight simulators which the training is being provided.48 single or multiengine airplane if he or and flight training devices), or in an In addition to this requirement, she holds those ratings only on his or aviation training device. As proposed, § 61.195(c) requires that a flight her commercial pilot certificate but not the authorized instructor and the pilot instructor who provides instrument on his or her flight instructor certificate. receiving instrument training would training for the issuance of an See Legal Interpretation to Taylor need to possess category and class instrument rating, a type rating not Grayson, January 4, 2010. The FAA ratings on their pilot certificates that are limited to VFR, or the instrument responded that, under § 61.195(b), a applicable to the aircraft in which the training required for commercial pilot flight instructor may not conduct instrument training is accomplished. and ATP certificates must hold an instrument flight training without The flight instructor would need to hold instrument rating on his or her pilot holding on his or her flight instructor the category and class rating on his or certificate and flight instructor certificate the appropriate category and her pilot certificate appropriate to certificate that is appropriate to the class ratings for the aircraft in which the 50 aircraft in which instrument training is category and class of aircraft used for instrument flight training is provided. given at the commercial pilot or ATP 49 Despite this conclusion, FAA the training. certificate level. In the 2009 final rule, the FAA regulations permit a pilot to receive an initial flight instructor certificate with For example, a pilot who holds an modified § 61.195(c) to clarify that, in airplane category single engine-land order to provide instrument training an instrument-airplane or instrument- helicopter rating without a class rating on his or her private pilot required for commercial pilot or ATP certificate would be able to receive certification, an instructor must have an corresponding category (airplane or rotorcraft) and class rating (single instrument training in a single engine- land airplane from a flight instructor 47 engine, multiengine, helicopter) on the ‘‘Flight training’’ is defined as ‘‘training, other who holds a single engine-land class than ground training, received from an authorized flight instructor certificate.51 In instructor in flight in an aircraft.’’ 14 CFR 61.1. addition, the FAA has indicated in rating on his or her commercial pilot (or 48 To be eligible for a flight instructor certificate, guidance 52 that a flight instructor may ATP) certificate and an instrument- a person must hold either: (1) A commercial pilot airplane rating on his or her flight certificate with an aircraft category and class rating instructor certificate. If the private pilot for the flight instructor rating sought and an 50 See Legal Interpretation to Taylor Grayson, instrument rating, or (2) an airline transport pilot January 4, 2010, which states ‘‘a flight instructor does not also hold a multiengine-land certificate with an aircraft category and class rating must have an instrument rating on his flight class rating, then in order to provide appropriate to the flight instructor rating sought and instructor certificate that is applicable to the aircraft instrument training to that private pilot category for which the instrument training is instrument privileges appropriate to the flight in a multiengine-land airplane, the instructor rating that is sought. As such, it is not provided.’’ Additionally, Grayson states ‘‘under part possible for a person to hold a flight instructor 61.195 a flight instructor may not conduct flight instructor would be required to certificate with a rating that the person does not instrument training in a multiengine airplane hold: (1) An instrument-airplane rating first hold on his or her pilot certificate. If providing unless that flight instructor holds the appropriate on his or her flight instructor certificate, airplane category multiengine class rating on his or instruction in an aircraft that is type certificated, and (2) an airplane category the instructor must hold the appropriate type rating her pilot certificate and flight instructor certificate. on his or her pilot certificate. 14 CFR 61.195(b)(2). 51 The powered lift category does not contain any 49 The FAA has distinguished instrument training corresponding class ratings, on either a pilot holding only a helicopter instrument rating on their for an instrument rating under § 61.65 and certificate or flight instructor certificate, and thus flight instructor certificate are limited to conducting instrument training at the commercial pilot would not be affected by this rulemaking proposal. instrument flight instruction in helicopters. certificate level under § 61.129 from the training 52 In Grayson, the FAA noted that FAA guidance C. Ratings Limited to Instrument. Instructors with requirements for private pilots on ‘‘basic instrument was inconsistent with the current regulation. FAA ratings limited to instrument may not give maneuvers’’ under § 61.107 and ‘‘control and Order 8900.1, Vol. 5, Chpt 2, Sec. 11, stated: instrument flight instruction to students who do not maneuvering of an airplane solely by reference to B. Class Ratings. Flight instructors who hold hold category and class ratings in the aircraft used. the instruments’’ under § 61.109. See Legal flight instructor certificates issued under part 61, This would be instruction for the addition of a Interpretation to Taylor Grayson, July 6, 2010. A which allow only instrument instructor privileges rating that conveys other than instrument flight instructor does not need to hold an in airplanes, may give instrument flight instruction privileges. These instructors may not certify instrument rating to provide the training under in any class airplane that is listed without logbooks or recommend applicants for any aircraft §§ 61.107 and 61.109. restriction on their pilot certificate. Instructors category or class rating.

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multiengine-land class rating on his or In addition, a flight instructor with an Notwithstanding this fact, there is a her flight instructor certificate.53 instrument rating on his or her flight single circumstance under which a sport Allowing a flight instructor with only instructor certificate has demonstrated pilot must receive flight training on an instrument rating on his or her flight the required knowledge on the control and maneuvering solely by instructor certificate to provide fundamentals of instruction (e.g., the reference to the instruments. As with instrument training when the flight learning process, elements of effective other student pilots, a sport pilot instructor and the pilot receiving teaching, student evaluation and testing, applicant must complete solo cross- instrument training hold the appropriate course development, lesson planning country flight time to be eligible for the category and class ratings on their pilot and classroom training techniques). See practical test for a sport pilot certificate. certificates provides adequate assurance 14 CFR 61.185(a)(1). Therefore, an 14 CFR 61.313. Prior to accomplishing that instrument training can be instructor who holds only an instrument this solo cross-country flight time, sport conducted competently and safely rating on his or her flight instructor pilot applicants must receive flight because the pilot and the instructor certificate meets the same foundational training from an authorized instructor would have each previously criteria as a person who holds a flight on various maneuvers and procedures.59 demonstrated proficiency during a instructor certificate with a category and 14 CFR 61.93. For applicants for a single practical test with an examiner in the class rating. This instructional engine airplane rating, the maneuvers category and class of aircraft in which knowledge is in addition to the and procedures for a cross-country solo the instrument training is conducted.54 knowledge and skills specific to the endorsement include flight training on The FAA believes the fundamentals of instrument rating and training tasks as control and maneuvering the airplane instrument training (and the provided in the Flight Instructor solely by reference to the instruments. procedures) are a universal skill within Instrument Practical Test Standards.56 14 CFR 61.93(e)(12). Sport pilot a category of aircraft. The IFR applicants are not required to receive D. Light-Sport Aircraft Pilots and Flight procedures are fundamentally this specific training unless the airplane Instructors consistent within a particular category they are using to accomplish solo cross- of aircraft and the same skills and rules 1. Sport Pilot Flight Instructor Training country flight has a Vh (maximum speed apply to operate under IFR in the Privilege in level flight with maximum national airspace system. Obtaining a To be eligible for a pilot certificate, a continuous power) greater than 87 knots clearance, maintaining an attitude, person must receive training from an calibrated air speed (CAS). The FAA altitude, speed, assigned course, authorized instructor on certain areas of believes that sport pilot flight schools following instructions from air traffic operation. For instance, an applicant for currently use flight instructors control (ATC), and other instrument a private pilot certificate with an certificated under subpart H to provide skills are universal tasks for instrument airplane category single engine class training in these airplanes. flight in an aircraft. The ability of an rating must receive flight training on The FAA is proposing to authorize instructor to teach instrument ‘‘basic instrument maneuvers’’ and sport pilot instructors to provide procedures in an aircraft for which he ‘‘control and maneuvering an aircraft training on control and maneuvering or she possesses an instrument rating on solely by reference to the instruments.’’ solely by reference to the instruments to the flight instructor certificate would 14 CFR 61.107(b)(1)(ix); 61.109(a)(3). sport pilot applicants receiving flight not be affected by the absence of aircraft For that reason, a flight instructor training for the purpose of solo cross- category and class ratings on the flight authorized to provide flight training to country requirements in an airplane that instructor certificate.55 a private pilot applicant (part 61, has a Vh greater than 87 knots CAS. subpart H instructor) is evaluated Because a sport pilot instructor is not 53 Likewise, if the pilot receiving instrument during the flight instructor practical test evaluated on this instructional training held a multiengine-land class rating on his on his or her instructional knowledge knowledge, the FAA is proposing to or her private pilot certificate but the flight require a sport pilot flight instructor to instructor did not hold a multiengine-land class related to tasks and maneuvers rating at the commercial pilot or ATP certificate performed solely by reference to the receive training and an endorsement level, the instructor—despite holding an instruments.57 from a flight instructor certificated instrument-airplane rating on his or her flight Conversely, basic instrument under subpart H that affirms the sport instructor certificate—would not be able to provide pilot flight instructor has been found instrument training to that private pilot in a maneuvers are not an area of operation multiengine-land airplane. for which sport pilot applicants must competent and is qualified to provide 54 The FAA notes that, as is currently required, receive flight training. 14 CFR 61.311. flight training on tasks and maneuvers either the instructor or the pilot receiving As such, a sport pilot instructor (part 61, performed solely by reference to the instrument training must be able to act as pilot in subpart K instructor) is not evaluated flight instruments. A subpart H command of the aircraft in which the training is instructor is necessary to provide the provided, meaning that one of them must meet the during the practical test on his or her recent experience requirements, have satisfied the instructional knowledge related to basic training and endorsement to a sport necessary flight review and proficiency check, and instrument maneuvers.58 pilot flight instructor because the hold any required endorsements (e.g., complex subpart H flight instructor is instrument airplane) for the aircraft. from an instructor who holds the appropriate rated and would be knowledgeable on 55 The FAA notes that a flight instructor who the appropriate techniques for safely holds only an instrument rating on his or her flight category and class for the rating sought. instructor certificate is not authorized to provide Additionally, the instrument only instructor may accomplishing flight by reference to the training to meet requirements for category and class not endorse an applicant for a commercial pilot flight instruments. The FAA is not ratings. For example, a flight instructor with only certificate to take the practical test. requiring a sport pilot flight instructor 56 FLIGHT INSTRUCTOR INSTRUMENT an instrument rating who is providing instrument to receive this endorsement. The training required under § 61.129(a)(3)(i) for a Practical Test Standards for AIRPLANE and commercial pilot certificate with an airplane HELICOPTER, FAA–S–8081–9D U.S. Department category single engine class rating is not authorized [sic] with Change 1. FAA–S–8081–29; http://www.faa.gov/training_ to provide training to meet requirements that are 57 Flight Instructor Practical Test Standards for testing/testing/test_standards/media/faa-s-8081- specific to the category and class of airplane. As Airplane, FAA–S–8081–6D; http://www.faa.gov/ 29.pdf. such, an applicant for a commercial pilot certificate training_testing/testing/test_standards/media/FAA- 59 To accomplish solo cross-country flight time, a who receives instrument training from an S-8081-6D.pdf. sport pilot must obtain a student pilot certificate, instrument only instructor would need to obtain 58 Sport Pilot Practical Test Standards for receive flight training, and obtain an endorsement training on the areas of operation listed in § 61.127 Airplane, Gyroplane, Glider, and Flight Instructor, from an authorized instructor. 14 CFR 61.93.

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endorsement would only be required if The FAA is proposing to make a for an additional category or class the sport pilot flight instructor seeks the corresponding change to § 91.109(c). privilege for a sport pilot certificate or privilege of providing training to sport Under that section, no person may flight instructor certificate with a sport pilot applicants on maneuvering solely operate a civil aircraft in simulated pilot rating. 14 CFR 61.413. by reference to the flight instruments. instrument flight unless the other A sport pilot instructor, therefore, is The proposed endorsement would control seat is occupied by a safety pilot not authorized to conduct training for a require the sport pilot flight instructor who possesses at least a private pilot recreational pilot certificate or a private to receive a minimum of 1 hour of certificate with category and class pilot certificate with airplane, rotorcraft, ground training and 3 hours of flight ratings appropriate to the aircraft being glider, or lighter-than-air category training.60 The hour of ground training flown. As such, a flight instructor with ratings. As such, under § 61.51(h), a should emphasize a flight instructor’s a sport pilot rating only (who holds no pilot may not count flight training role, risk, and responsibilities in other pilot certificates) cannot currently received from a flight instructor with providing this type of training, act as safety pilot in simulated only a sport pilot rating (subpart K evaluation and authorization. This basic instrument flight. As proposed, the FAA instructor) towards the training instrument flight training should would revise § 91.109(c) to permit a requirements for a recreational pilot involve flight training for the purpose of sport pilot instructor who has obtained certificate or a private pilot certificate giving instruction on control and the endorsement proposed in § 61.412 to with category ratings other than maneuvering solely by reference to the serve as a safety pilot only for the powered parachute and weight-shift instruments including straight and level purpose of providing flight training on control aircraft.62 flight, turns, descents, climbs, use of control and maneuvering solely by Under current regulations, however, if radio aids, and air traffic control reference to the instruments to a sport a pilot receives flight training in a light- directives. 14 CFR 61.93(e)(12). The pilot applicant seeking a solo sport aircraft 63 for a sport pilot FAA believes that the sport pilot flight endorsement in an airplane with a Vh certificate from an instructor who is also instructor already has demonstrated greater than 87 knots CAS. This serves authorized to provide training for a proficiency in the fundamentals of the purpose of qualifying the sport pilot private pilot certificate (subpart H instruction and course development. student for solo cross-country instructor), the flight training provided The endorsement would ensure that the endorsement. by that instructor may ‘‘be credited toward the flight training requirements sport pilot instructor has received 2. Credit for Training Obtained as a for a corresponding private pilot appropriate training and assessment Sport Pilot from an authorized Subpart H instructor certificate, provided the instructor has In the NPRM that proposed to to enable the sport pilot flight instructor met all applicable requirements establish the certification and to provide this training effectively and necessary to provide that instruction at qualification requirements for sport safely. the private pilot level.’’ See Legal pilots, the FAA indicated that a pilot The FAA is proposing to add new Interpretation from Rebecca B. would be able to credit ‘‘training time § 61.412 that would establish training MacPherson to Tim Kern, July 24, 2009. and aeronautical experience logged as a and endorsement requirements for those By permitting this training time to be sport pilot’’ toward the requirements for sport pilot flight instructors who want logged toward both certificates, the FAA higher certificates in accordance with to provide training for sport-pilot has recognized that ‘‘many of the areas the logging requirements in § 61.51. 67 applicants on control and maneuvering of operation on which an applicant for FR 5368, 5411 (February 2, 2002). Under solely by reference to the flight a sport pilot certificate is required to § 61.51(h), a person may log training instruments. This training is not receive training are identical to those on time when that person receives training required. Rather, the proposed change which an applicant for a private pilot from an authorized instructor in an would allow a flight instructor with certificate is also required to receive aircraft, full flight simulator, or flight only sport pilot rating to provide all the training.’’ Kern Interpretation. training device.61 training requirements for the sport pilot In January 2011, the Aircraft Owners A sport pilot instructor is authorized, certificate. The FAA is proposing to and Pilots Association, the within the limits of his or her certificate, revise § 61.415 by adding a new Experimental Aircraft Association, the to provide training and endorsements paragraph (h) to clarify that a sport pilot General Aviation Manufacturers required for: (1) A student pilot seeking flight instructor may not conduct flight Association and the National a sport pilot certificate; (2) a sport pilot training on control and maneuvering an Association of Flight Instructors certificate; (3) a flight instructor aircraft solely by reference to the petitioned the FAA to allow pilots to certificate with a sport pilot rating; (4) credit the flight training received from instruments in an airplane that has a Vh a powered parachute or weight-shift a sport pilot instructor towards the greater than 87 knots CAS without control aircraft rating; (5) sport pilot meeting the requirements in proposed training requirements for recreational privileges; (6) a flight review or 64 § 61.412. Because a sport pilot flight pilot and private pilot certificates. As operating privilege for a sport pilot; (7) suggested in the petition, flight training instructor is not currently authorized to a knowledge test or practical test for a provide this training, the FAA is not obtained while training for a sport pilot sport pilot certificate; (8) a private pilot certificate would be eligible toward placing any new limitation on sport certificate with a powered parachute or pilot flight instructors. some of the hours of flight training weight-shift-control aircraft rating or a required for these higher certificates. flight instructor certificate with a sport 60 Private pilot applicants have a similar requirement under § 61.109(a)(3) that requires 3 pilot rating; and (9) a proficiency check 62 A pilot may, however, count hours hours of flight training in a single-engine airplane accumulated as a sport pilot toward the flight time on the control and maneuvering of an airplane 61 An authorized instructor for purposes of a sport (as opposed to flight training) requirements for a solely by reference to instruments, including pilot certificate includes a flight instructor higher certificate in accordance with the straight and level flight, constant airspeed climbs certificated under subpart H of part 61 and a sport requirements in § 61.51. and descents, turns to a heading, recovery from pilot instructor certificated under subpart K of part 63 The requirements of a light-sport aircraft are unusual flight attitudes, radio communications, and 61 provided the instructor holds the appropriate defined in 14 CFR 1.1. the use of navigation systems/facilities and radar ratings for the aircraft in which the training is being 64 http://www.regulations.gov; Docket No. FAA– services appropriate to instrument flight. provided. 2011–0138.

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The petitioners stated that, by allowing An applicant for a recreational pilot the FAA is proposing to revise § 61.99 training received in pursuit of a sport certificate or a private pilot certificate and add new paragraph (l) to § 61.109 to pilot certificate to be credited toward must complete flight training on many allow flight training received from a the training requirements of higher of the same tasks and maneuvers sport pilot instructor who does not also certificates, there would be greater required for a sport pilot certificate. In hold a flight instructor certificate issued incentive to pursue these higher fact, many of the tasks and maneuvers under the requirements in subpart H to certificates, thereby enhancing safety outlined in the practical test standards be credited towards a portion of the and encouraging involvement in a wider for a sport pilot mirror the requirements flight training requirements for a range of aviation activities. in the practical test standards for recreational or private pilot certificate Under current regulations, to obtain a recreational or private pilots. For with airplane, rotorcraft, or lighter-than- sport pilot certificate with airplane example, ten of the twelve areas of air categories.67 Any training received category single engine (land or sea) class operation required in the airplane from a sport pilot instructor that would privileges, rotorcraft category gyroplane practical test standards for private pilot be credited under this proposal must be class privileges, or lighter-than-air are also listed in the airplane practical completed in an aircraft appropriate to category airship class privileges, a pilot test standards for sport pilot. These the category and class rating for the areas of operation must be performed to must complete 20 hours of flight time recreational or private pilot certificate including at least 15 hours of flight identical proficiency standards. As with sought. training from an authorized instructor sport pilot applicants, the flight training on various areas of operation.65 A sport for recreational and private pilot The following table reflects the pilot’s flight training involves takeoffs certificates includes cross-country flight current regulatory flight training hour and landings to a full stop, cross- time, takeoffs and landings to a full requirements for recreational pilots and country flight requirements, and solo stop, and solo flight time. 14 CFR 61.99, private pilots for specific categories and flight time in a light-sport aircraft.66 61.109. classes of aircraft. The last column Finally, a sport pilot applicant must Because of the common areas of reflects the sport pilot flight training demonstrate proficiency on certain tasks operation and proficiency standards in hours that the FAA is proposing to and maneuvers during a practical test. flight training for sport pilots, allow a sport pilot to credit toward 14 CFR 61.313. recreational pilots, and private pilots, those higher certificates.

TABLE 2—CURRENT AND PROPOSED FLIGHT TRAINING HOUR REQUIREMENTS

Current recreational pilot Current private pilot Sport pilot training proposed to be Aircraft categories requirements requirements credited

Airplane category—Single Engine 15 hours of training ...... 20 hours of training ...... 10 training hours. Rotorcraft category—Gyroplane .... 15 hours of training ...... 20 hours of training ...... 10 training hours. Lighter-than-air category—Airship No rating at recreational pilot cer- 25 hours of flight training ...... 12.5 training hours. tificate level. Lighter-than-air category—Balloon No rating at recreational pilot cer- 10 hours of flight training including 5 hours of flight training including tificate level. six training flights with an au- three training flights with an au- thorized instructor. thorized instructor.

In proposing this change, the FAA instructor who holds only a sport pilot would be required to validate an acknowledges that, notwithstanding the rating, other than as discussed applicant’s eligibility before number of common training tasks, a previously in section III.D.1 of this administering the practical test. private pilot applicant is trained and preamble, which proposes to authorize The FAA believes that there are tested on certain tasks and maneuvers sport pilot instructors to provide sufficient safeguards including above those that are required for a sport training on control and maneuvering successful completion of a knowledge pilot certificate including 3 hours of solely by reference to the instruments to test and practical test to prevent any night training, 3 hours of flight by sport pilot applicants receiving flight reduction in safety. The applicant for a reference to instruments, operations at training for the purpose of solo cross- recreational or private pilot certificate an airport with an operating control country requirements, subject to certain would still be required to complete all tower, and some additional cross- conditions. Rather, the FAA is the requirements for that specific country time requirements.68 For that proposing to allow a pilot to credit a certificate or rating, including the reason, the FAA is proposing to permit portion of flight training received from appropriate aeronautical experience a sport pilot to credit only a portion of a sport pilot instructor toward the requirements, aeronautical knowledge the flight training toward higher training hour requirements for higher requirements, flight proficiency certificates. The FAA is not proposing to certificates. As under current standards, and preparation for the expand the privileges of a flight procedures, a designated pilot examiner practical test. For example, a person

65 To obtain a sport pilot certificate with a lighter- fact, a person could use a light-sport aircraft to hours toward the 250 hours of flight time required than-air category balloon class privileges, a pilot accomplish training for a private pilot certificate if to apply for a commercial pilot certificate. Training must complete 7 hours of flight time that includes he or she chose. time accomplished prior to private pilot three flights with an authorized instructor. To 67 The FAA notes this situation is different from certification, however, may not be used to meet the obtain a sport pilot certificate with glider category logging requirements for higher certificate levels. training requirements for a commercial pilot privileges, a pilot must complete 10 hours of flight Generally, a pilot may use all of his or her flight certificate. See Legal Interpretation from Rebecca B. time including 10 flights with an authorized time to meet the total minimum flight hours for a MacPherson to Richard Theriault, October 8, 2010. instructor if the pilot has less than 20 hours of flight certificate when applying for a higher pilot time in a heavier-than-air aircraft. certificate. For example, a pilot who has 80 total 68 Night and instrument time are not required for 66 Light-sport aircraft used for sport pilot training flight hours when he or she passes the practical test balloon, powered parachute, or weight-shift control function the same as other certificated aircraft. In for a private pilot certificate may count those 80 aircraft at the private pilot certification level.

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with a sport pilot certificate with an the requirements of § 141.5. Section Principal Operations Inspector must airplane category single engine-land 141.5(d) currently requires, within the review and approve the course. In some class rating applying for a private pilot preceding 24 calendar months, the pilot instances the completion of the course certificate with airplane category single school applicant to have established a leads to a required logbook endorsement engine-land class rating would need pass rate of 80 percent or higher on the such as a tail-wheel, complex, or high flight training from a subpart H flight first attempt for all knowledge tests performance endorsement. In other instructor for private pilot tasks leading to a certificate or rating, cases, the course is designed to improve including, but not limited to, night, practical tests leading to a certificate or a pilot’s skills in certain areas and cross-country, tower operations, flight rating, or end-of-course tests for an environments such as crew resource solely by reference to the flight approved training course specified in management, aerobatics, or mountain instruments, and preparation for the appendix K of that part before the FAA flying. If a provisional pilot school is practical test. may issue or reissue a pilot school certificated on the basis of special In addition to completing the certificate. In addition, § 141.5(e) curriculum courses alone, the school aeronautical experience requirements requires the pilot school applicant to will not be able to meet the renewal with a flight instructor certificated have graduated at least 10 different criteria of § 141.5(d) because the courses under subpart H, an applicant for a people from the school’s approved do not involve testing for a certificate or recreational or private pilot certificate training courses within the previous 24 rating and are not courses listed in would be required to receive a calendar months. If an applicant for appendix K of part 141.70 The FAA minimum of three hours of training renewal does not meet the quality of believes there is a necessity to support within 60 days of the practical test from training requirements in § 141.5(d) and part 141 pilot schools that provide a flight instructor certificated under the recent training ability requirements instruction for special curriculum subpart H. A flight instructor in § 141.5(e), the FAA may issue a courses under § 141.57. certificated under subpart H would be provisional pilot school certificate in Therefore, the FAA is proposing to required to conduct training on all the accordance with the requirements in amend § 141.5(d) to allow part 141 pilot areas of operation for a private pilot § 141.7.69 14 CFR 141.27(a)(3). schools that hold training course certificate and certify that the applicant Section 141.53 prescribes the general approvals for special curricula courses is prepared for the practical test. 14 CFR procedures for a pilot school (or to renew their certificates based on their 61.103(f). Moreover, only a subpart H provisional pilot school) concerning the students’ successful completion of an flight instructor could recommend the outline of each training course for end-of-course test for these FAA applicant for the recreational or private which the school seeks FAA approval. approved courses. This proposed pilot practical test. Ultimately, the Often these approved courses lead to a change would expand the opportunity practical test provided by an FAA certificate or rating under part 61 or are for pilot schools to maintain part 141 designated pilot examiner would specific courses set forth in appendix K certification and reduce the number of provide confirmation that the pilot has to part 141 such as training for exemption requests submitted to the achieved the appropriate level of agricultural aircraft and rotorcraft FAA. The FAA developed part 141 to proficiency required for the higher pilot external-load operations. Section 141.57 allow for expanded oversight and the certification. also permits a school to receive promotion of structured pilot training The FAA believes the additional approval of a special curriculum course. courses. The Principal Operations training required and provided by a The FAA has approved numerous Inspector who approves the special subpart H instructor, and the special curricula courses under § 141.57 curricula course would provide requirement for the applicant to pass a that do not lead to a pilot certificate or continued oversight and validity of knowledge test and practical test to the rating such as crew resource these programs, as is done with any standards required for that higher management, the use of night vision course approved under part 141. certificate, would ensure an appropriate goggles, high performance aircraft Allowing pilot schools to renew their level of experience, proficiency and training, complex airplane training, certificates based on special curricula safety. turbo-prop transition training, and tail- course graduations promotes this type of As an alternative to this proposal, the wheel training. While the FAA is able organized training and FAA oversight of FAA considered allowing all training to approve these courses, and both pilot training activities. received from a sport pilot instructor to provisional pilot schools and pilot If a student fails the end-of-course test be credited by an applicant seeking a schools are able to graduate students for that special curricula course, the recreational or private pilot certificate. from these courses, they do not lead to student would be recorded as a failure An applicant would still be required to a certificate or rating for the pilots nor for purposes of calculating the 80 obtain a minimum of three hours of are they listed in appendix K to part percent pass rate. The FAA believes that training in preparation for the practical 141. Therefore, under § 141.5, the this is reasonable due to the fact that test (within the preceding 2 calendar graduates that complete these special special curricula courses do not contain months) from a flight instructor under curricula courses currently may not be the specific training requirements found subpart H, as well as be endorsed by a counted when calculating the 80 flight instructor under subpart H as percent pass rate required for issuance 70 Some pilot schools have previously requested being prepared for the required practical or renewal of a pilot school certificate. exemptions from § 141.5 in order to be eligible for the issuance or renewal of a pilot school certificate. test. The FAA solicits public comment, Although these special curricula The FAA has generally denied these petitions. One and any associated data, on this courses do not result in a certificate or exemption was granted to a balloon pilot school alternative. rating for the individual pilot, they do that had graduated nine students from 22 different require the pilot school to develop a courses and had a 100% pass rate for the pilot E. Pilot School Use of Special Curricula certification of their students (Exemption No. course curriculum, and an FAA 10155A). The exemption was granted due to the Courses for Renewal of Certificate limited number of students that receive balloon The FAA may issue an initial pilot 69 Section 141.27 contains the standards for pilot training and the continuing need for a balloon school certificate to a provisional pilot renewing a pilot school certificate. The FAA may school in the area. Another exemption was granted renew a pilot school certificate if, among other to a pilot school in Guam on the basis that there school or may renew a pilot school things, the pilot school meets the ‘‘recent training were no other pilot schools in the geographic area certificate provided the applicant meets ability and quality’’ of part 141. (Exemption No. 10435).

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in the appendices to part 141. The FAA When using Airman Online Services, issue these exemptions to prevent proposes to modify § 141.5(d) the Airman Certification Branch can cancelation of flights in situations accordingly. immediately issue a document by fax or where a pilot flightcrew member’s pilot Allowing this additional method of email that is valid for 60 days and certificate or medical certificate is valid part 141 pilot school renewal would provides temporary authority to exercise but not physically available. With the benefit schools that only provide special the privileges of a pilot certificate to an emergence of Airman Online Services, curricula courses, without requiring an airman. the FAA has added as a condition of additional certificate course approval Although the temporary document these exemptions that the relief is that would add cost and complexity to obtained from the Airman Certification intended for situations where the pilots the pilot school operation. Benefits Branch through the Airman Online may not have Internet access or other would include promotion of FAA Services Web site also reflects the means to expeditiously receive a approved pilots schools and increase in airman’s medical certificate document from the FAA under available FAA-approved training information, this document is not a § 61.29(e). courses. sufficient verification of an airman’s Under the terms of the exemption, a The FAA notes that FAA web-based medical certificate. An airman still must part 119 certificate holder may provide Operations Safety System (WebOPSS) obtain 60-day temporary authority of its pilots with a temporary 72-hour authorizations are available for part 141 medical certification from the verification document when an airman schools and can be a method of Aeromedical Certification Branch, certificate or medical certificate is lost, providing approvals for special which is only available by fax or mail.73 damaged, or destroyed. This method is curricula courses and other Under the current process, a pilot can known as the Air Carrier Certificate authorizations provided to pilot schools. make a phone call during normal Verification Plan.75 Issuance of a business hours requesting a temporary verification document to a pilot F. Temporary Validation of Flightcrew 60-day document for the medical flightcrew member is based on Members’ Certificates by Part 119 certificate, which can be faxed to the information contained in the certificate Certificate Holders Conducting airman. Currently there is no FAA holder’s approved record system. The Operations Under Parts 121 or 135 online service available to request a certificate holder’s POI must approve Current regulations require a person temporary document confirming the procedure. who serves as a required pilot flightcrew medical certification. Additionally, the FAA places certain member of a United States civil aircraft If a pilot does not have a pilot conditions and limitations on a to have a pilot certificate in his or her certificate (or a document issued under certificate holder as part of the physical possession or readily § 61.29 conveying temporary authority), exemption including, but not limited to: accessible in the aircraft when medical certificate, and government- Requiring the pilot to carry a copy of the exercising the privileges of that issued photo ID in his or her physical exemption onboard when the relief is certificate. 14 CFR 61.3(a). The possession, a flight cannot be conducted utilized, ensuring an alternate method regulations also require a person who with that person acting as PIC or SIC. for proper identification of the pilot, serves as a required pilot flightcrew Since 1992, the FAA has issued requiring the pilot to comply with member to have an appropriate medical exemptions to part 119 certificate § 61.29(e) and obtain a replacement certificate and government-issued photo holders conducting operations under certificate after the 72-hour period has identification in his or her physical parts 121 and 135 to permit them to elapsed if the original certificate possession or readily accessible in the issue temporary verification documents remains unavailable, and limiting the aircraft. 14 CFR 61.3(c). In the case of to flightcrew members who do not have relief in the exemption to operations a lost or stolen airman certificate or their airman certificates or medical conducted entirely within the District of medical certificate, § 61.29(e) permits a certificates in their personal possession Columbia and the 48 contiguous States 74 pilot to request a document conveying for a particular flight. The FAA has of the United States. temporary authority to exercise determined that good cause exists to Since the exemption process is not certificate privileges, which may be the appropriate method to provide carried as an airman certificate or rather than providing a document conveying continuing relief sought by these temporary authority. certificate holders, the FAA is proposing medical certificate for up to 60 days. 73 Under § 61.29(b), a request for the replacement to amend §§ 121.383(c) and 135.95 to Requests for these temporary documents of a lost or destroyed medical certificate must be can be made to the FAA Aeromedical made by letter to the Department of Transportation, allow part 119 certificate holders Certification Branch or the Airman FAA, Aerospace Medical Certification Division, conducting operations under part 121 or P.O. Box 26200, Oklahoma City, OK 73125, or in Certification Branch, as appropriate. 135 to provide their pilot flightcrew any other manner and form approved by the members a temporary verification For airman certificates, this request Administrator.http://www.faa.gov/licenses_ can be accomplished online through certificates/airmen_certification/contact_airmen_ document (valid for 72 hours) without Airman Online Services 71 or by letter to certification/. the need of an FAA exemption. The 74 the Airmen Certification Branch.72 Currently, there are 10 active exemptions FAA is also proposing to amend granted for relief of § 61.3(a) and (c) to part 119 § 61.3(a) to permit the documents certificate holders. These exemptions include air 71 The FAA airman services Web site (https:// carrier associations such as Regional Airline provided by certificate holders to be amsrvs.registry.faa.gov/amsrvsLogon.asp) states that Association (RAA) (Exemption No. 5560, as carried as an airman certificate or ‘‘* * * you may request temporary authority to amended) and Airlines for America (A4A) medical certificate, as appropriate. As exercise certificate privileges of a valid airman and/ (Exemption No. 5487, as amended). RAA currently amended, § 61.3(a) would permit or medical certificate or verification of an expired lists 26 air carrier members (http://www.raa.org) flight instructor certificate in the form of a facsimile while A4A represents most mainline part 121 air flightcrew members to carry documents (FAX) or email. This authority will be valid for 60 carriers including Alaska Airlines, American provided by a certificate holder only on days pending receipt of a permanent replacement Airlines, Hawaiian Airlines, JetBlue Airways, flights conducted for the part 119 certificate or reinstatement of an expired flight Southwest Airlines, United Airlines, UPS, and certificate holder including ferry flights instructor certificate. Only one (1) on-line request Federal Express (http://www.airlines.org). By for temporary authority can be obtained within any including the participating members of RAA and to reposition aircraft. If the pilot six (6) month period.’’ A4A, there may be more than 65 part 119 certificate 72 When a request is made by letter, the Airman holders eligible to exercise the privileges of these 75 8900.1 Volume 5, Chapter 1, Section 7, Certification Branch issues a replacement certificate exemptions for relief from § 61.3(a) and (c). paragraph 5–153 (C).

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flightcrew member’s pilot or medical If this rule is finalized as proposed, the in subpart H of part 61. These certificate remains unavailable after 72 FAA will provide updated FAA Order requirements include receiving training hours, the pilot flightcrew member 8900.1 guidance regarding how a appropriate to the flight instructor rating would be required to comply with the certificate holder may obtain authority sought, successful completion of a requirements of § 61.29 and request a to provide its pilots a temporary 72-hour knowledge test, and demonstration of 60-day temporary confirmation certificate verification document. The instructional proficiency during a document from the Airman Certification FAA would continue to provide relief practical test with an examiner. In the Branch or the Aeromedical Certification through exemptions until a final rule is 2009 final rule, the FAA promulgated Branch until a replacement certificate is published and the certificate holder has § 61.73(g) (74 FR 42555), which for the issued and in the possession of that obtained authority under the regulation first time allowed a current or former airman. from its Principal Operations Inspector. military instructor or military examiner A temporary verification document The current exemptions issued to part to obtain an FAA flight instructor issued by the certificate holder would 119 certificate holders conducting part certificate based on experience obtained remain a short-term solution for a 121 operations also provide exemption in the military (i.e., military period not to exceed 72 hours. Placing from § 63.3(a) to allow certificate competence) rather than meeting the this 72-hour time limitation on the holders to issue temporary verification requirements in subpart H. verification document issued by the documents to flight engineer flightcrew Section 61.73(g) specifies that a certificate holder would ensure that the members who do not have their airman current or former military instructor or airman obtains an official document certificates or medical certificates in examiner may apply for and be issued from the Airman Certification Branch or their personal possession for a an initial flight instructor certificate Aeromedical Certification Branch under particular flight. Accordingly, the FAA with appropriate ratings or add a rating § 61.29(e) when a document remains is proposing to amend § 63.3(a) to to an existing flight instructor certificate unavailable after 72 hours. permit the documents provided by if he or she meets the following Consistent with the conditions and certificate holders to be carried as an requirements: 79 limitations set forth in the exemptions, airman certificate or medical certificate, • Hold at least a commercial pilot the FAA is proposing that a certificate as appropriate. As amended, § 63.3(a) certificate with category and class holder would be required to obtain would permit flightcrew members to ratings appropriate to the flight approval from the Principal Operations carry documents provided by a instructor certificate sought; Inspector to exercise this privilege. The certificate holder only on flights • Hold an instrument rating (or have FAA intends to establish a process conducted for the part 119 certificate instrument privileges) on his or her within the web-based Operations Safety holder including ferry flights to pilot certificate appropriate to the System (WebOPSS) 76 program to reposition aircraft. If the flight engineer instructor rating sought; facilitate approval of the Air Carrier flightcrew member’s airman or medical • For applicants that currently do not Certificate Verification Plan. Under this certificate remains unavailable after 72 hold a flight instructor certificate, pass proposed process, the Principal hours, the flight engineer flightcrew a knowledge test on the aeronautical Operations Inspector would provide the member would be required to comply knowledge areas listed under authorization to issue a pilot certificate with the requirements of § 63.16 and § 61.185(a); 80 or medical certificate verification request a 60-day temporary • Present a record that shows the document through WebOPSS, which confirmation document from the person is or was qualified as a U.S. would permit the FAA to approve and Airman Certification Branch or the Armed Forces military instructor pilot oversee the authorization through Aeromedical Certification Branch until or pilot examiner appropriate for the established operations specifications a replacement certificate is issued and flight instructor rating sought; procedures.77 The FAA believes that in the possession of that airman. • Present a record that shows the public safety and interest would be The FAA notes that, as proposed, this person completed a U.S. Armed Forces preserved with the approval and relief for pilots and flight engineers is instructor pilot or pilot examiner oversight of the certificate holder’s available only for flights conducted training course and received an aircraft Principal Operations Inspector. entirely within the United States.78 rating qualification as a military When these exemptions were first Article 29 of the Convention on instructor pilot or pilot examiner that is granted in 1992, access to the Internet International Civil Aviation requires appropriate to the flight instructor rating was limited or unavailable and that every aircraft engaged in sought; and obtaining a temporary document international navigation shall carry ‘‘the • Present a record that shows that quickly from the FAA was difficult. appropriate licenses for each member of person passed a U.S. Armed Forces This fact has changed with today’s the crew.’’ Temporary verification instructor pilot or pilot examiner information technology revolution. The documents provided by the certificate proficiency check in an aircraft as a FAA believes that the current holder from its training records would military instructor pilot or pilot proliferation of personal electronic not meet the requirements of the examiner that is appropriate to the flight devices with 24/7 Internet information Convention. instructor rating sought. The 2009 final rule did not impose and email access will likely keep the G. Military Competence for Flight any time restrictions for the qualifying use of this new provision at a minimum. Instructors military events described by 76 WebOPSS is a web-based program for issuance Issuance of a Flight Instructor Certificate of operations specifications (OpSpecs) to 14 CFR The requirements for the issuance of 79 These requirements are paraphrased from the part 119, 133, and 145 certificate holders, and part existing regulatory text found in § 61.73(g). 129 operators. a flight instructor certificate are set forth 80 The FAA requires applicants to satisfy this 77 This would be in lieu of utilizing the FAA requirement by passing the Military Competence Airmen Online Services Web site that can provide 78 The exemptions limited the relief to those Instructor (MCI) knowledge test. This test is temporary authority in the form of a facsimile (fax) flights conducted entirely within the District of composed of 125 questions and requires the or email. This also would apply to the temporary Columbia and the 48 contiguous States. As applicant to demonstrate knowledge in the areas of authority for the medical certificate provided by fax proposed, the relief is expanded to any flight fundamentals of instructing, 14 CFR parts 61 and from the Aeromedical Branch. conducted entirely within the United States. 91, attitude flying, and basic flight instruments.

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§ 61.73(g).81 The absence of time reestablish the privileges of an expired Many military instructors commented restrictions allows applicants to use flight instructor certificate. Under that that the addition of a rating during any military instructor experience obtained provision, a person who served in a U.S. time prior to expiration of a flight any time prior to the date of application military or civilian capacity outside the instructor certificate should result in the as a basis for the issuance of an initial United States in support of a U.S. applicant receiving a certificate that is flight instructor certificate. Armed Forces’ operation is eligible for valid for an additional 24 calendar renewal of an expired flight instructor months. Renewal and Reinstatement of a Flight certificate, provided the instructor Based on these concerns, the FAA is Instructor Certificate completes one of the renewal proposing some changes to §§ 61.197 The holder of a flight instructor requirements in § 61.197 within six and 61.199 to accommodate renewal certificate must renew that certificate calendar months of returning to the and reinstatement of flight instructor every 24 calendar months to continue to United States. certificates by military instructors and exercise instructor privileges. Section examiners. The FAA is proposing to 61.197 describes the methods by which The Proposed Rule expand the 12-calendar-month a flight instructor may accomplish that Since the final rule was published in timeframe noted in § 61.197(a)(2)(iv) to renewal, including: (1) Completing a 2009, the FAA has received numerous 24 calendar months. This would allow flight instructor refresher course (FIRC); comments from military instructors a military instructor who has passed a (2) providing a record showing that the regarding renewal and reinstatement of U.S. Armed Forces military instructor instructor served as a check pilot in an their flight instructor certificates. For pilot proficiency check within the 24 air carrier operation; (3) providing a example, some military instructors— calendar months preceding the month of record showing within 24 calendar who had obtained their initial flight application to be eligible to renew his or months 80% of the flight instructor’s instructor certificate by completing the her certificate based on that proficiency students have passed a practical test on requirements in subpart H rather than check. Expanding this timeframe would the first attempt (five or more through military competence—wanted be consistent with the requirements for recommendations); (4) completing a to use § 61.73(g) to reinstate their other methods of renewal found in practical test for additional flight expired flight instructor certificates. §§ 61.197(a)(2)(i) and 61.197(a)(2)(ii). instructor rating; or (5) providing a Unless the expired flight instructor The FAA believes that there would be record showing that within the certificate can be renewed in accordance no reduction of safety based on this preceding 12 months from the month of with SFAR 100–2, the express language proposal as these instructors will have application the flight instructor passed in § 61.199 requires the holder of an demonstrated knowledge and skill an official U.S. Armed Forces instructor expired flight instructor certificate to during the same timeframe as is pilot proficiency check. 14 CFR reinstate that certificate by completing a recognized for other methods of 61.197(a). The 2009 final rule that practical test. Some military instructors renewal. Consistent with current established military instructor noted that it seemed inequitable to regulations, those instructors who apply competency added military instructor allow military instructors who had not to renew their certificates based on a pilot proficiency checks to the list of instructed for many years to obtain an military instructor proficiency check renewal options for a flight instructor initial flight instructor certificate completed more than 3 months from the certificate. without being required to demonstrate date of expiration of their current flight If a flight instructor fails to proficiency while at the same time instructor certificate would receive a accomplish one of the renewal requiring an active military flight certificate with an expiration date 24 requirements, the flight instructor instructor (who had obtained that months from the date that the instructor certificate expires, and the instructor certificate by meeting the requirements submits his or her application for may no longer exercise the privileges of of subpart H) to pass a practical test to renewal. If the flight instructor applies that certificate until it is reinstated. To reinstate his or her expired flight for renewal within 3 months of the reinstate an expired flight instructor instructor certificate. expiration date of the current instructor certificate, a person must pass a As another example, some military certificate, then the new expiration date practical test for a previously held instructors have sought to renew their would be 24 months from the current instructor rating or a new rating.82 14 certificates based on the addition of a date of expiration. CFR 61.199. Special Federal Aviation military instructor rating obtained The FAA is also proposing to clarify Regulation (SFAR) 100–2 provides the outside the 12-month window set forth in § 61.197(a)(2)(iv) that a flight only other avenue by which to in § 61.197(a). The FAA has stated instructor would be able to renew his or through policy that, under § 61.73(g), a her certificate by providing a record 81 For decades, FAA regulations have allowed military instructor is eligible to add a demonstrating that, within the previous military pilots to apply for FAA pilot certificates new rating obtained in the military to a 24 calendar months, the instructor and ratings based on military competency. Prior to 2009, those military pilots who applied for an FAA non-expired flight instructor certificate; passed a military instructor pilot pilot certificate more than 12 months after they however, the flight instructor certificate proficiency check for a rating that the were on active flying status were required to take retains the existing expiration date instructor already holds or for a new and pass a practical test. Those military pilots who unless the applicant added the rating rating. Consistent with current practice, were on active flying status within 12 months of the date of application for an FAA pilot certificate were within the 12-month period preceding an eligible military instructor that not required to take and pass a practical test. The the date of the application for renewal. applies for renewal under this provision 2009 final rule removed the time restriction from As such, a person who holds a non- would receive a flight instructor § 61.73 and required that military pilots take and expired flight instructor certificate and certificate that reflects a date 24 pass only a knowledge test to obtain an FAA certificate, regardless of the time that had elapsed obtained a new rating through a military calendar months from the month that since they were on active flying status. The FAA proficiency check conducted outside of application for renewal is made to the introduced the military instructor competence the 12-calendar month period preceding FAA. provision in 2009 without any time restriction. the month of application for renewal The FAA is also proposing to revise 82 The minimum tasks that must be demonstrated during a practical test are found in the Flight retains the original expiration date on § 61.199(a) to permit a military Instructor Practical Test Standards, as appropriate the certificate rather than obtaining a instructor to reinstate his or her expired for the category being tested. new certificate valid for 24 months. flight instructor certificate by providing

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a record showing that, within the test. Currently, those military H. Use of Aircraft Certificated in the previous six calendar months, the instructors with an expired instructor Restricted Category for Pilot Flight instructor passed a U.S. Armed Forces certificate (that was obtained under Training and Checking instructor pilot or pilot examiner subpart H) may only reinstate that Training and/or Checking in Restricted proficiency check for an additional certificate through an additional Category Aircraft military rating. The FAA has accepted a practical test. This situation is in flight instructor or examiner proficiency contrast to military instructors that have Basic certification requirements under check conducted by the military to be never held a flight instructor certificate 14 CFR part 21 state that an applicant equivalent to an FAA practical test for issued under subpart H who have the is entitled to a type certificate for an the purposes of issuing initial flight ability to receive an initial instructor aircraft in the restricted category for instructor certificates, adding ratings to certificate based on their military special purpose operations if the existing flight instructor certificates, and activity, even though their military applicant shows that no feature or for renewing flight instructor activity may have been prior to the characteristic of the aircraft makes it certificates. Allowing a flight instructor military activity of the individual that unsafe when it is operated under the to reinstate his or her expired flight holds an expired instructor certificate. limitations prescribed for its intended instructor certificate based on a military As noted previously, the FAA has use.84 Additionally, the aircraft: (1) instructor proficiency check for an received commentary that this situation, Must meet the airworthiness additional rating would be an extension resulting from the current regulations, is requirements of an aircraft category of this precedent. Consistent with the inequitable. except those requirements that the FAA existing requirements for reinstatement, This proposed temporary provision finds inappropriate for the special a military instructor seeking to reinstate would provide a reinstatement method purpose for which the aircraft is to be his or her certificate under the proposed for military instructors and examiners used; or (2) is of a type that has been provision would not be required to take who allowed their FAA instructor manufactured in accordance with the an additional knowledge test. certificates to expire before the requirements of and accepted for use by, The expiration date of the reinstated regulations permitted them to add a an Armed Force of the United States flight instructor certificate would be 24 rating based on military instructor and has been later modified for a special calendar months from the date of the competence. This temporary provision purpose. 14 CFR 21.25(a). Special proficiency check (as opposed to the in § 61.199(c) would allow for a military purpose operations 85 for restricted date of the application). In addition, the instructor or examiner that meets the category aircraft are outlined in 14 CFR FAA would require the applicant to following requirements to obtain a 21.25(b) and include, agricultural apply for reinstatement within 6 reinstated flight instructor certificate. As operations, forest and wildlife calendar months of the proficiency proposed, a military instructor or conservation; aerial surveying check. The FAA believes that this examiner who obtained his or her FAA (photography, mapping, and oil and would provide the applicant adequate flight instructor certificate before mineral exploration); patrolling (e.g., time to schedule an appointment with October 20, 2009 (the effective date of pipelines, power lines, and canals); either an FAA Aviation Safety Inspector the current regulations that allow for the weather control (e.g., cloud seeding); or designee authorized to issue a flight issuance of a flight instructor certificate aerial advertising (skywriting, banner instructor certificate based on military based on military competence), would towing, airborne signs and public competence. Allowing the applicant 6 be required to: (1) Provide a record address systems); and any other calendar months to apply for the demonstrating that, since the initial operation specified by the FAA.86 reinstatement following the proficiency flight instructor certificate was issued, The special purpose operation for check is consistent with the 6-calendar- the person passed a U.S. Armed Forces which the FAA certificates a restricted month allowance described in SFAR instructor or pilot examiner proficiency category aircraft is set forth in the 83 100–2. The 6-calendar-month check for an additional military rating; ‘‘Certification Basis’’ section of the Type requirement also ensures that FAA and (2) pass the MCI knowledge test Certificate Data Sheet. This section will resources are being expended on a within 24 calendar months preceding list the applicable special purpose certificate that will at least be valid for the date of application for operation(s) as described in § 21.25(b) 18 calendar months following the date reinstatement. The FAA believes that and provides the only operations for of issuance. requiring the applicant to pass the which the restricted category aircraft The FAA is also proposing to add a knowledge test ensures that the person can be utilized. temporary provision to § 61.199 (new has demonstrated recent knowledge of Section 91.313 places express paragraph (c)) that would allow military the areas found in the MCI test and is limitations on the operations that may instructors who obtained their initial consistent with the requirements for a be conducted in a restricted category flight instructor certificate under person seeking an initial flight aircraft. The FAA first proposed subpart H to reinstate that instructor instructor certificate based on military regulations establishing the operating certificate based on military competence competence. limitations of aircraft certificated in the rather than by completing a practical The temporary provision in restricted category in an NPRM on § 61.199(c), as proposed, would remain January 18, 1964. 29 FR 477. In the 83 The FAA notes that SFAR 100–2 addresses preamble, the FAA explained that it was applicants who are unable to make a timely in effect for one year to provide a application due to being assigned outside the military instructor or examiner with an 84 United States in support of U.S. Armed Forces expired FAA instructor certificate The applicant must also show that the aircraft operations. Under that provision, an applicant may complies with the applicable noise requirements meet any of the renewal requirements listed in issued under subpart H enough time to under 14 CFR part 36. § 61.197(a) to reinstate an instructor certificate. The reinstate their certificate based on 85 Already approved other special purpose proposed rule, however, would only permit military competence. The FAA believes operations under § 21.25(b)(7) are listed and further reinstatement based on successful completion of a that one year is a sufficient time frame explained in FAA Order 8110.56 (as amended), military proficiency check to add a military Chapter 5. instructor rating but would apply to an applicant to allow those individuals who would 86 Criteria for the approval of ‘‘any other without regard to the location of their assigned be affected by the provision to apply for operation specified by the FAA’’ is outlined in FAA duty. a reinstated instructor certificate. Order 8130.2 (as amended), paragraph 408h.

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placing limitations on the use of which there is no equivalent standard The relief granted in the exemption restricted category aircraft because the category aircraft including the civil allowed Billings to operate a restricted airworthiness certification standards for model CH–47D, the Lockheed P–2 category aircraft for a practical test these aircraft are not designed to Neptune (P2V), and the Air Tractor AT– necessary for its pilots to obtain a type provide the same level of safety that is 802A. rating designation as required by required for aircraft certificated in the After the FAA informed operators that § 61.31. In addition, the exemption standard category. The final rule was flights pertaining to pilot certification allowed Billings to train pilots in published on February 18, 1965. 30 FR were not expressly permitted by preparation for these practical tests. The 2531. § 91.313, several operators applied for FAA limited this relief to those pilots Section 91.39, later recodified as an exemption to this section. These employed by Billings who will 87 § 91.313, provided ‘‘no person may petitions for exemption sought relief to participate in a special purpose operate a restricted category civil conduct pilot training for certification, operation for which the listed aircraft aircraft for any purpose other than the practical tests (for type rating are certificated. The exemption also special purpose for which it is designations), and PIC proficiency granted relief for any flights necessary to certificated’’ or ‘‘in an operation other checks required by § 61.58 in aircraft designate a designated pilot examiner in than one necessary to accomplish the certificated in the restricted category. the aircraft types in order to conduct work activity directly associated with these practical tests. that special purpose.’’ In 1968, the FAA Petitions for Exemption The FAA noted that, although § 91.313 does not allow restricted revised § 91.39 to permit restricted On January 13, 2015, Billings Flying category aircraft to be used for training category aircraft to be used to train Service (Billings), a part 119 certificate for certification and the practical test for flightcrew members in the special holder authorized to conduct operations type ratings, this restriction does not purpose operation for which the aircraft under parts 133, 135, 137, and 91 extend to proficiency checks was certificated. 33 FR 12826 petitioned the FAA for an exemption accomplished by those pilots that (September 11, 1968). from § 91.313(a) 88 to allow proficiency The FAA recently determined that the already hold the requisite type rating training, practical tests, or other flights operating limitations set forth in and whose duties are to perform a necessary for its pilot employees to § 91.313 restrict operators from special purpose operation authorized by obtain a type rating designation in the conducting flights necessary for their § 91.313(a). These flights, such as flights S–61A and CH–47D rotorcraft.89 PICs to obtain the type rating needed to satisfy the PIC proficiency Billings explained that it supports the designations required by § 61.31(a). checks required by § 61.58 (and United States government in fire Practical tests for the addition of a type associated pilot proficiency examiner suppression operations which requires rating designation to a pilot certificate, observations), are considered necessary training and check flights for its pilots. training in preparation for such to accomplish the work activity directly Pilots operating these aircraft for practical tests, or other flights necessary associated with the aircraft’s special Billings are subject to the type rating for the conduct of such practical tests purpose. requirements and proficiency check (such as observations required for In addition to providing relief from requirements prescribed in §§ 61.31 and designated pilot examiner designation § 91.313(a), the FAA found that an 61.58. and surveillance) are outside the scope exemption from § 91.313(c) was of the special purpose operation(s) for In its petition, Billings stated that it required for Billings to conduct the which these restricted category aircraft has conducted training and proficiency operations described in the petition. are certificated and not allowed under checks for many years, and that such Section 91.313(c) prohibits a person § 91.313. operations are safe, present no from operating a restricted category civil The FAA recognizes that this additional risk to the public, and are in aircraft carrying persons or property for determination creates a regulatory the public interest. Billings further compensation or hire. An operation that barrier for operators seeking to conduct noted that it would perform no involves the carriage of persons or flights to meet the type rating additional maneuvers or operations, material necessary to accomplish the requirements of § 61.31 when a standard above what it had conducted in the past, special purpose and an operation for the category aircraft in the same category, and that the training would be in the purpose of providing flight crewmember class, and type is not reasonably same location for training previously training in the special purpose available to the operator. Several models used by Billings. The petitioner asserted operation are not considered to be the of surplus military aircraft have entered that conducting these same operations, carriage of persons or property for service as civil aircraft certificated in including those that would be under the compensation or hire. the restricted category. Additionally, oversight of an FAA Designated Pilot A recent legal interpretation by the civil aircraft previously certificated in Examiner, Aviation Safety Inspector, or FAA recognizes an instructor who is the standard or transport category have Pilot Proficiency Examiner, present no being paid to provide flight training in been modified to take advantage of new additional risk and are in the public an aircraft is operating the aircraft for technologies or modified to add interest. compensation or hire regardless of equipment designed to specifically whether he or she is acting as pilot in perform a mission covered by the 88 Billings also requested relief from § 91.313(b) command.90 The same principle applies special purpose operations outlined in which allows an operator to consider flightcrew to designated pilot examiners providing member training for the special purpose operation practical tests. The FAA did not intend § 21.25(b). The FAA has certificated for which the aircraft is certificated to be an these aircraft in the restricted category operation for that special purpose. The FAA to restrict Billings from providing under new type certificates. There are determined that since Billings will not be compensation to those instructors multiple examples of aircraft conducting training directly related to the special providing training or examiners purpose under this exemption but rather will be conducting practical tests in the aircraft certificated in the restricted category for conducting training and testing necessary for certification, relief from § 91.313(b) was not covered under the exemption. However, 87 The FAA recodified part 91 in 1989. 54 FR required. 34308 (August 18, 1989). No further amendments 89 Docket No. FAA–2015–0104. Exemption No. 90 Legal Interpretation to Gregory Morris (October have been made since that time. 11180. 7, 2014) (pertaining to limited category aircraft).

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the exemption limited Billings to designation required by § 61.31(a). As As proposed in § 91.313(h)(4), an conducting such flights for the purpose proposed, the LODA would permit operator would be required to submit a of training pilots who will be operators to train and test only pilots request for deviation authority in a form conducting special purpose operations employed by the operator who hold at and manner acceptable to the on behalf of the operator, or, in the case least a commercial pilot certificate with Administrator at least 60 days before the of a designated pilot examiner, will be the appropriate category and class intended operations would be conducting practical tests for the ratings for the aircraft type. The FAA conducted. Although the FAA will operator’s pilots. believes that requiring pilots to hold provide additional guidance on the Subsequent to the grant of relief for category and class ratings prior to the process for obtaining a LODA, the FAA Billings, the FAA received and granted type rating practical test is appropriate anticipates that—as with LODAs for several other petitions for exemption because it would resolve the current experimental aircraft—an operator from § 91.313(a) and (c).91 regulatory obstacle faced by operators would submit a request for deviation who need to provide their pilots with Proposed Rule Change authority to the Flight Standards District the proper ratings to perform special Office having jurisdiction over the The FAA believes that, under certain purpose operations while ensuring that location where the requested training conditions, it would be appropriate to historical limitations on the use of would take place. permit owners/operators of aircraft restricted category aircraft remain in The application for a LODA under certificated in the restricted category to place. As noted, the FAA has long proposed § 91.313(h) would include: operate those aircraft for the purpose of acknowledged that restricted category • A letter identifying the name and providing pilot training and testing that aircraft ‘‘may not meet the airworthiness address of the applicant which includes leads to a type rating designation standards of standard category aircraft.’’ the name and contact information of the required by § 61.31(a) (and an ATP Because of the special nature of the person responsible for the operation, certificate 92 obtained concurrently with intended usage of these aircraft, the and details of the type of training and/ a type rating). This training and testing airworthiness certification standards for or checking to be conducted; would be limited to pilots employed by them are not designed to provide the • an operator to perform the special same level of safety that is required for A description of each aircraft, FFS, purpose operation identified on the aircraft certificated in the standard FTD, or ATD used in any associated restricted category aircraft’s Type category and the operating limitations training (if applicable). This information Certificate Data Sheet. The FAA is also set forth in § 91.313 are designed to would include the specific aircraft proposing to allow flights to be compensate for this and provide the make(s), and model(s), and type (if conducted in restricted category aircraft necessary level of safety for special applicable) by N-number, to be utilized; for the purpose of designating purpose operations. 30 FR 2531 • An aircraft configuration analysis examiners and training center (February 18, 1965). including, but not limited to, flight evaluators and qualifying FAA Because of these airworthiness deck, flight manual, operating inspectors in the aircraft type and considerations, the FAA finds it limitations, required placards, and conducting oversight and observation of necessary to limit the additional procedures. designated examiners and training restricted category operations to those • The qualifications and current center evaluators. As proposed in that are described in this proposal. The employment status of the applicant for § 91.313(h), operators of restricted FAA finds that the proposal would which the training and/or checking is category aircraft would be permitted to permit the flights that can only be needed. conduct these operations by obtaining a conducted in a restricted category If an operator obtains a LODA, the letter of deviation authority (LODA) aircraft. Other flights, such as obtaining training and testing for a type rating from the existing limitations in § 91.313. a commercial pilot certificate or adding would be conducted consistent with This process would be similar to the a category and/or class rating, can be existing requirements in part 61. provision currently found in § 91.319(h) conducted in an aircraft with other Specifically, the flight training must be for aircraft certificated in the airworthiness certificate categories (e.g., conducted by an appropriately rated experimental category.93 standard category). The FAA finds that flight instructor in accordance with the The proposed § 91.313(h) would operations which can be accomplished requirements set forth for type ratings in allow operators of restricted category in aircraft that have an airworthiness §§ 61.63(d) or 61.157(b). Additionally, aircraft to obtain a LODA for the certificate outside of the restricted the pilot would be required to complete purpose of conducting pilot training and category should not be permitted by the practical test consistent with the testing that leads to a type rating § 91.313. standards outlined in the Practical Test In addition, proposed § 91.313(h) Standards with a designee or FAA 91 would permit the FAA to provide Petitioners include, but are not limited to, AAR inspector who holds the appropriate deviation authority to conduct Airlift Group, Inc. Docket No. FAA–2011–1270), authority. For this reason, the operator Neptune Aviation Services (Docket No. FAA–2015– operations in restricted category aircraft 0073), Aero-Flite, Inc. (Docket No. FAA 2015– that are necessary to designate would be required to demonstrate 0543), Airborne Support Inc. (Docket No. FAA– examiners and training center during the application process that, as 2015–0110), Construction Helicopters, Inc. DBA configured, the restricted category CHI Aviation (Docket No. FAA–2015–0127), evaluators and qualify aviation safety Sikorsky Aircraft Corporation (Docket No. FAA– inspectors in the aircraft type and aircraft is capable of performing all 2013–0476), and Withrotor Aviation (Docket No. provide continuing oversight and required procedures and maneuvers FAA–2015–0123). observation of designees and training necessary to meet the requirements of 92 The applicant would need to meet all center evaluators. These flights would the applicable aircraft type rating applicable requirements of part 61 and successfully practical test standards. pass the practical test in accordance with the ATP enable the FAA to conduct the Practical Test Standards for the applicable category appropriate practical tests for operators If the operator is granted deviation and class, as appropriate. and ensure that the FAA fulfills its authority, the operator would be 93 Section 91.319(h) allows the FAA to issue permitted to provide pilot flight training deviation authority to operators providing flight obligations to ensure that designees and training for compensation or hire in experimental FAA inspectors are performing their and/or testing in their restricted aircraft. duties appropriately. category aircraft consistent with the

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authority provided in the LODA.94 As The FAA has also proposed a change Certain former military aircraft and such, the LODA issued via WebOPSS to § 91.313(c) to ensure that instructors some experimental aircraft were would outline the specific training and providing flight training and designees designed to be flown by one pilot. testing functions that are authorized.95 conducting practical tests under a Notwithstanding this fact, these The FAA notes that LODAs are issued LODA may accept compensation for airplanes are currently required to have to specific operators not to individual these operations. Likewise, the FAA is an SIC in accordance with § 91.531(a) aircraft. If an operator leases a restricted proposing to revise § 91.313(d) to permit because they qualify as large airplanes. category aircraft to another operator, persons to be carried on restricted Furthermore, because these airplanes then both operators must hold a LODA category aircraft if necessary to are not type certificated, they are not to conduct flight training and testing for accomplish a flight authorized by LODA eligible for an LOA under § 91.531(b). pilots employed to perform a special under paragraph (h). Under the express language of the purpose operation. Additionally, an Currently, if an operator desires to regulation, to obtain an LOA, the operator would be required to conduct any operation outside of the airplane must be both ‘‘designed for and demonstrate that the executed lease special purpose operation(s) for which type certificated with only one pilot agreement meets the requirements the aircraft was certificated, the operator station.’’ 98 pertaining to operational control under is required to submit a petition for On April 10, 2012, Experimental part 91. exemption. Requirements for how to Aircraft Association, Warbirds of This proposed provision is not submit a petition for exemption and America, petitioned the FAA for an intended to allow operators to establish what information must be included in exemption from § 91.531 to permit the training schools utilizing restricted the submission are outlined in 14 CFR operation of large airplanes that possess category aircraft for the purpose of 11.63 and 11.81 respectively. special (experimental) airworthiness issuing type ratings. Operators would Additionally, in accordance with certificates that have been designed only be granted deviation authority to § 11.63, the operator is required to with only one pilot station, but which conduct this training and testing for submit the petition for exemption 120 are not type-certificated, to be operated pilots that are employed by the operator days prior to the need for the exemption without a pilot who is designated as 99 and only when a type rating is required to take effect. If approved, the petition SIC. to complete the appropriate special for exemption may have conditions and On July 20, 2012, the FAA granted this exemption from § 91.531(a)(1) to purpose operation for which the aircraft limitations that will require ongoing allow members of the Experimental was certificated and the operator is interaction between the operator and the Aircraft Association, Warbirds of actively engaged in performing. FAA. If this rule is finalized as In addition to establishing a LODA America, to operate certain large proposed, the requirement to submit a process under proposed paragraph (h), airplanes without an SIC. The FAA request for a LODA locally to the Flight the FAA is also proposing to revise granted relief from § 91.531(a) for pilots Standards District Office will relieve the § 91.313(b) to make clear that PIC operating: (1) The ‘‘trainer’’ versions of operator of the burden of petitioning the proficiency checks and recent flight former military airplanes originally FAA for exemption. The LODA process experience in a restricted category designed with one pilot station, but would enable an operator to obtain aircraft are permitted under § 91.313(a) which were modified with a second approval at the local Flight Standards when pilots hold the appropriate pilot (instructor) station merely for the District Office and would reduce the category, class, and type ratings and are purpose of pilot training; and (2) former time requirements associated with filing employed by the operator to perform a military aircraft that had a single pilot a petition for exemption. special purpose operation. Under the station and a required non-pilot proposal, properly rated pilots I. Single Pilot Operations of Former flightcrew member station. In support of employed by the operators would be Military Airplanes and Other Airplanes the relief provided in the exemption, the permitted to accomplish § 61.58 With Special Airworthiness Certificates FAA stated that these airplanes were proficiency checks and recent flight approved by the military to be flown Section 91.531(a) prohibits a person experience requirements set forth in with only one pilot. These airplanes are from operating certain airplanes without § 61.57. Additionally, the FAA is maintained, operated, and inspected in a pilot who is designated as SIC. This proposing to add relocation flights for restriction applies to large airplanes,97 maintenance to the list of operations 98 Section 91.531 was originally promulgated as turbojet-powered multiengine airplanes considered necessary to accomplish the § 91.213 (37 FR 14758; July 25, 1972). In 1989, part for which two pilots are required under 91 was reorganized and § 91.213 was recodified as work activity directly associated with the type certification requirements for § 91.531. In the preamble to the final rule the special purpose operation. The FAA establishing § 91.213, the FAA stated that ‘‘to that airplane, and certain commuter notes that other types of flight events accommodate those airplanes having only one pilot category airplanes. The Administrator not expressly allowed by the regulation station, such as former military airplanes may issue LOAs for the operation of an certificated for special operations, § 91.213 as would not be permitted and would airplane without an SIC ‘‘if that airplane adopted permits an airplane having only one pilot require an exemption from the station to be operated under an authorization from is designed for and type certificated regulation.96 the Administrator’’ (37 FR 14762). Despite the with only one pilot station.’’ 14 CFR express language of the rule, the preamble to the 91.531(b). final rule did not distinguish between type 94 If the FAA has sufficient designees rated in a certificated and non-type certificated former particular aircraft type, it may not be necessary to military airplanes designed for one pilot operations. issue authority in an operator’s LODA to conduct allowing a farmer to conduct a flight for the purpose The FAA does not believe that the rule’s original flights necessary to accomplish designee of showing which fields should be dusted or intent was to preclude single pilot operations in qualification, oversight and observation. transportation of an insurance agent, surveyor, or former military aircraft that were designed for 95 WebOPSS is a web-based program for issuance inspector to the site of a special purpose operation. single pilot operations but which are not type- of FAA authorizing documents to certificate holders The FAA would also consider a flight conducted to certificated. In addition, the FAA does not believe and miscellaneous operators. relocate an aircraft to an area of a special purpose that single pilot operations should be precluded in 96 Operators would still be permitted to conduct operation to be an operation necessary to some large experimental airplanes that are not type- operations necessary to accomplish the work accomplish the special purpose operation. certificated and that were not commonplace when activity directly associated with the special purpose 97 Under 14 CFR 1.1, a large aircraft means an § 91.213 was established. operation. In the 1965 final rule, the FAA provided ‘‘aircraft of more than 12,500 pounds, maximum 99 www.regulations.gov; Docket No. FAA–2012– examples of such operations which included certificated takeoff weight.’’ 0406.

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accordance with operating limitations airplanes, which would be reflected at redundant provision requiring an LOA issued by the FAA under § 91.319(i) that § 91.531(a)(2) as proposed, remains for operational purposes and to allow set forth specific conditions for their necessary because some older airplanes these airplanes to be flown in single safe operation. In addition, the pilots are do not contain minimum flightcrew pilot operations. The FAA further notes required to demonstrate proficiency requirements in the operating that these airplanes must be flown in through practical testing that includes limitations of the aircraft flight manual accordance with any applicable oral and flight testing specific to the or the type certificate data sheet.101 The operating limitation, including any particular airplane operated. FAA continues to believe that large limitation issued pursuant to the The FAA is proposing to revise airplanes should be operated with an provisions of §§ 91.319 and 91.9. § 91.531(b) to allow certain large SIC unless the airplane has been type- As proposed, pilots seeking to operate airplanes that are not type-certificated to certificated for single pilot operations. these airplanes (that are not type be operated without a pilot who is The FAA is proposing to revise the certificated) as a single pilot would still designated as SIC, provided that those language in § 91.531(a)(2) to clarify that be required to obtain a temporary LOA airplanes: (1) Were originally designed an SIC is required for large airplanes from the FAA allowing the pilot to serve with only one pilot station; or (2) were when the minimum flightcrew as PIC, if necessary, for completion of originally designed with more than one requirements are not included in the the practical test. Once the pilot pilot station for purposes of flight type certification of the airplane. The completes the practical test training or for other purposes, but were proposed revision would provide the successfully, the examiner would operated by a branch of the United necessary flexibility, in the event that update the pilot certificate to reflect the States Armed Forces or the armed forces the Aircraft Evaluation Group of the authorization to operate these airplanes of a foreign contracting State to the FAA determines a particular large as a single pilot. Based on this proposal, Convention on International Civil airplane type could be flown safely the FAA believes the current Aviation with only one pilot.100 The without a SIC and adjusts the type requirement in § 91.531(b) to obtain a manufacturer’s technical order for the certification requirements for that large permanent LOA for operational airplane would indicate that the airplane accordingly.102 purposes is no longer necessary with airplane was originally designed or As proposed, the FAA would regard to large airplanes or turbojet- modified to be flown with one pilot in eliminate the need for pilots to obtain powered multiengine airplanes since accordance with § 91.9. an LOA under § 91.531(b) to operate the authorization is reflected on the The proposed amendment to § 91.531 large airplanes designed for single pilot pilot certificate. The FAA notes further would also reorganize the section by operation without an SIC. The FAA that since the type certificate for placing all affirmative requirements in believes that an LOA is unnecessary due commuter category airplanes referenced paragraph (a) and all exceptions thereto to pilot certification requirements and in current § 91.531(a)(3) permits single in paragraph (b). Related amendments to aircraft operating limitations in pilot operations, an LOA is not § 91.531, as proposed, would also § 91.319(i). necessary. eliminate inconsistencies, For example, to fly a large former military or experimental airplane, the J. Technical Correction and redundancies, and obsolete provisions, Nomenclature Change including the language currently found PIC must first hold either a type rating at paragraph (a)(2) and paragraph (d) of (if the airplane is type certificated) or an While considering the regulatory this section. By virtue of the airplane experimental aircraft authorization (if changes proposed in this rulemaking, type certificate, large airplane, or the airplane is not type certificated). the FAA became aware of the need for commuter category crew requirements, These type ratings and authorizations a technical correction in appendix I to the rule would now capture all are reflected on a person’s pilot part 141, additional Aircraft category circumstances when an SIC is required certificate after successful completion of and/or class rating course. In paragraph and the specific circumstances when an the requisite practical test. In the case of (k), course for an airplane additional exception applies. The FAA notes that former military and experimental multiengine class rating, subparagraph the affirmative requirement for an SIC airplanes designed for operation by a (2) discussing the requirements for the on a multiengine turbojet aircraft at single pilot, a type rating or commercial pilot certificate, the FAA current paragraph (a)(2) is captured by experimental aircraft authorization on a noted that two paragraphs are currently the proposed amendment to pilot certificate is evidence that the pilot designated (iv): § 91.531(a)(1) and therefore no longer has demonstrated to the FAA during a (iv) One 2-hour cross country flight during needs to be listed separately. practical test or evaluation that he or nighttime conditions in a multiengine The proposed amendment to she is competent to fly the airplane airplane and, a total straight-line distance of § 91.531(a)(1) would clarify that the without an SIC. more than 100 nautical miles from the original point of departure; and requirement for an SIC is determined by The FAA believes the current requirement to obtain an LOA for (iv) Three hours of flight training in a the minimum flightcrew requirements multiengine airplane within 2 calendar established in the operating limitations operation of these airplanes with a months before the date of the practical test. single pilot, in addition to the of the aircraft flight manual or the type The FAA is proposing to correct this certificate data sheet—regardless of authorization on the pilot certificate, creates a redundancy without a typographical error to renumber the whether the airplane is large or small. paragraphs as (k)(2)(iv) and (k)(2)(v), The existing SIC requirement for large demonstrable benefit. Therefore, rulemaking is appropriate to remove the respectively. Further, while considering these 100 For example, the F–15 has been designed with a single seat (models A and C). Other F–15s have 101 For example, the Lockheed L–18 Loadstar, regulatory changes, the FAA noted that been designed with a second seat behind the pilot Douglas DC–3, and the Ford 5AT Tri-Motor are the nomenclature regarding flight for training (models B and D) or a seat behind the large airplanes for which the type certification does simulators has changed. The definition pilot for a weapons system officer that may have a not specify a minimum crew complement. as found in § 1.1 references a ‘‘full flight second set of flight controls (model E). Despite the 102 The Embraer 505, SyberJet 30, and Cessna fact that there are models that are designed with a Citation 550 are examples of large airplanes that simulator’’ whereas the regulations second pilot station, all F–15s are designed to be have been type certificated for operation without a often use the older nomenclature ‘‘flight operated by a single pilot. SIC. simulator.’’ Therefore, in the sections

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the FAA has determined need to be • Proposed amendment to § 61.99 and issuance of an authorization by the FAA revised as part of the proposed rule, the addition of § 61.109(l) regarding credit (i.e. an Operations Specifications FAA is also proposing to remove the for training obtained as a sport pilot paragraph that would be issued to the words ‘‘flight simulator’’ wherever they • Proposed amendment to § 141.5(d) carrier) describing the criteria and appear and replace them with the words regarding pilot school use of special actions required for the allowance under ‘‘full flight simulator.’’ curricula courses for renewal of the rule. The FAA proposes a 180-day certificate effective date for the following IV. Discussion of Proposed Effective • Proposed substantive amendment to provisions: Dates for Rule Provisions § 91.531 regarding single pilot • Proposed amendments to §§ 61.39, The FAA recognizes that many of the operations of former military 61.51(e)–(f), 61.159(a) and (c), 61.161, provisions in this rule are relieving and airplanes and other airplanes with and 135.99(c) regarding logging flight others are voluntary. If this rule is special airworthiness certificates and time as a second in command in part finalized as proposed, the FAA will clarifying amendments • 135 operations work to ensure that the amendments Proposed typographical correction to • Proposed amendments to §§ 61.3(a), which would provide regulatory relief appendix I to part 141 63.3, 63.16, 121.383(c) and 135.95 and flexibility become effective as soon Provisions Proposed To Be Made regarding temporary validation of as practicable, while ensuring that Effective 60 Days After Date of flightcrew members’ certificates persons seeking to benefit from the • Publication of a Final Rule Proposed amendments to § 91.313 relief, as well as the FAA, have adequate regarding use of aircraft certificated in time to prepare for implementation of The FAA proposes that the following the restricted category for pilot flight the changes that would be finalized. The provisions be made effective 60 days training and checking. following discussion summarizes the after publication of any final rule FAA’s proposal for when the various associated with this NPRM. By making V. Advisory Circulars and Other amendments included in this proposed these provisions effective 60 days after Guidance Materials rule would become effective. As the date of publication in the Federal To further implement this notice of explained, each proposed amendment Register, the FAA intends to ensure that proposed rulemaking, the FAA is would be effective either 30, 60 or 180 regulatory relief for provisions requiring proposing to revise or create the days after publication of the final rule some additional implementation time following Advisory Circulars and FAA in the Federal Register, depending on for the issuance and implementation of Orders. the type and scale of implementation agency guidance, or for FAA Principal FAA Order 8900.1, Flight Standards needed for persons to begin complying Operations Inspectors to take action, is Information Management System, Vol. with the amended requirements. available as soon as practicable. The 11, Chapter 10, Basic and Advanced FAA proposes a 60-day effective date for Aviation Training Device, Sec. 1, Provisions Proposed To Be Made the following provisions: Approval and Authorized Use under 14 Effective 30 Days After Date of • CFR parts 61 and 141 guidance Publication of a Final Rule Proposed substantive amendments to § 61.129(a)(3)(ii) and appendix D to concerning ATD’s would also be The FAA proposes that the following part 141 regarding the completion of revised. provisions be made effective 30 days commercial pilot training and testing AC 135–PDP: This document would after publication of any final rule in technically advanced airplanes and be a newly drafted AC (Part 135 SIC associated with this NPRM. By making clarifying amendment to Professional Development Program) that these provisions effective 30 days after § 61.129(b)(3)(ii) would provide part 135 operators the date of publication in the Federal • Proposed amendments to §§ 61.412, guidance on receiving FAA approval for Register, the FAA intends to ensure that 61.415(h) and 91.109(c) regarding training and qualifying pilots to act as regulatory relief for provisions that do sport pilot flight instructor training an SIC and log that time for the ATP not require specific Principal privilege flight time requirements. Operations Inspector approval, training, • Proposed amendments to §§ 61.197 AC 61–65, Certification: Pilots and or significant changes to occur are and 61.199 regarding military Flight and Ground Instructors would be implemented as quickly as possible. By competence for Flight Instructors revised to include endorsements and making the proposed definitions in guidance pertaining to the sport pilot Provisions Proposed To Be Made § 61.1 effective at this time, the FAA provisions. This would include the Effective 180 Days After Date of would ensure clarity of future regulatory recommended endorsement for Publication of a Final Rule provisions and alleviate potential qualifying a sport pilot only instructor confusion. The FAA proposes a 30-day The FAA proposes that the following to give basic instrument flight effective date for the following provisions be made effective 180 days instruction to sport pilot candidates provisions: after publication of any final rule only. • All proposed definitions that would associated with this NPRM. By making FAA Order 8900.1, Flight Standards be added to § 61.1 these provisions effective 180 days after Information Management System, Vol. • Proposed substantive and clarifying the date of publication in the Federal 2, Air Operator, Air Agency amendments to § 61.51(g)(4)–(5) Register, the FAA is acknowledging that Certification, Chapter 9, Certification of regarding instructor requirement these provisions are more complex to a Part 141 Pilot School guidance when using an FFS, FTD, or ATD to implement and will necessitate more concerning pilot school 141 Special complete instrument recency extensive action by FAA Principal Curricula courses would be revised to experience Operations Inspectors. These provisions permit those courses to be used for a • Proposed amendments to §§ 61.57(c) affect part 119 certificate holders pilot school to obtain a pilot school and 135.245 regarding instrument conducting operations under parts 91, certificate. experience requirements 121 and 135 and will take more FAA Order 8900.1, Flight Standards • Proposed amendments to § 61.195(b)– coordination and review on the part of Information Management System, Vol. (c) regarding flight instructors with both certificate holders and the FAA. 5, Airman Certification, Chapter 1, instrument ratings only This will include the creation and Direction, Guidance and Procedures for

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Parts 121/135 and General Aviation, a copy of the records required by Section 61.161 would be revised to Sec. 7, Amendments to Certificates and § 135.63(a)(4)(vi) and (x) at the time of permit flight time logged under an SIC Replacement of Lost Certificates application for the practical test. PDP to be counted toward the 1,200 guidance concerning temporary Section 61.51(e) would be revised to hours of total flight time required for an validation of flightcrew certificates allow the part 135 flight instructor ATP certificate with a rotorcraft would be revised to permit a certificate serving as PIC to log all of the flight time category helicopter class rating. holder to obtain approval to provide a as PIC flight time even when the SIC is Section 61.195 paragraphs (b) and (c) temporary document verifying a the sole manipulator of the controls and would be revised to permit a flight flightcrew member’s airman certificate is logging time in an operation that does instructor who holds only an instrument and medical certificate privileges under not require an SIC by type certification rating to provide instrument training an approved certificate verification plan of the aircraft or the regulations under without being required to hold aircraft set forth in the certificate holder’s which the flight is being conducted. category and class ratings on his or her operations specifications. FAA Order Section 61.51(f) would be revised to flight instructor certificate. 8900.1, Flight Standards Information reflect the allowance for SICs to log Section 61.197(a)(2)(iv) would be Management System, Vol. 5, Airman flight time in part 135 operations when revised to allow a military instructor Certification, Chapter 2, Title 14 CFR not serving as required flightcrew who has passed a U.S. Armed Forces part 61 Certification of Pilots and Flight members under the type certificate or military instructor pilot proficiency Instructors, Sec. 15, Issue a Title 14 CFR regulations. Section 61.51(g) would also check within the 24 calendar months part 61 Pilot Certificate Based on be revised to allow a pilot to accomplish preceding the month of application to Military Competence; and FAA Order instrument experience when using an be eligible to renew his or her FAA 8900.2, General Aviation Airman FAA-approved FFS, FTD, or ATD flight instructor certificate based on that Designee Handbook, Chapter 7, without an instructor present. proficiency check. The section would Designated Pilot Examiner Program, Section 61.57(c) would be revised to also be clarified to indicate that a flight Sec. 19, Accomplish Designation/Issue allow pilots to accomplish instrument instructor would be able to renew his or Certificates as an ACR Employed Solely experience in ATDs at the same 6- her certificate by providing a record by a FIRC Sponsor, Paragraph 121, month interval allowed for FFSs and demonstrating that, within the previous Flight Instructor Certificate and Ratings FTDs. In addition, the section would be 24 calendar months, the instructor Issued on the Basis of Military revised to no longer require pilots, who passed a military instructor pilot Competence by an MCE and MC/FPE, opt to use ATDs for accomplishing proficiency check for a rating that the and Paragraph 122, Certification of instrument experience, to complete a instructor already holds or for a new Graduates; and Sec. 20, Accomplish specific number of additional rating. Designation/Conduct Functions as an instrument experience hours or Section 61.199 would be revised to MCE, FPE, MC/FPE, GIE, and FIRE, additional tasks. permit a military instructor to reinstate Paragraphs 123–127, Background, Section 61.99 would be revised to his or her flight instructor certificate by General Information for MCE, FPE, and allow flight training received from a providing a record showing that, within MC/FPE Designations, Issuance of a U.S. sport pilot instructor who does not also the previous six calendar months, the Private Pilot Certificate and Ratings hold a flight instructor certificate issued instructor passed a U.S. Armed Forces Based on Foreign Pilot Licenses, Pilot under the requirements in subpart H of instructor pilot or pilot examiner Certificates and Ratings Issued on the part 61 to be credited towards a portion proficiency check for an additional Basis of Military Competence by an of the flight training requirements for a military rating. MCE and MC/FPE, and Compliance recreational pilot certificate with Section 61.412 would be added to with Other Provisions, respectively, airplane, rotorcraft, or lighter-than-air establish training and endorsement guidance concerning flight instructor categories. requirements for those sport pilot flight certificate renewal via military Section 61.109 would be revised by instructors who want to provide training competence would be revised regarding adding paragraph (l) to allow flight for sport-pilot applicants on control and the military flight instructor provisions training received from a sport pilot maneuvering solely by reference to the included in this proposed rule. instructor who does not also hold a flight instruments. flight instructor certificate issued under Section 61.415 would be revised by VI. Section-By-Section Discussion of the the requirements in subpart H of part 61 adding new paragraph (h) to clarify that Proposed Rule to be credited towards a portion of the a sport pilot instructor may not conduct In part 61, certification: Pilots, flight flight training requirements for a private flight training on control and instructors, and ground instructors, in pilot certificate with airplane, rotorcraft, maneuvering an aircraft solely by § 61.1, the definition of ‘‘pilot time’’ or lighter-than-air categories. reference to the instruments in an would be revised. New definitions Section 61.129(a)(3)(ii) would be airplane that has a Vh greater than 87 would also be added to § 61.1(b) for revised to allow a pilot seeking a knots CAS without meeting the ‘‘aviation training device’’ and commercial pilot certificate with a requirements in proposed § 61.412. ‘‘technically advanced airplane.’’ single engine class rating to complete In part 63, certification: Flight Section 61.3(a) would be revised to the 10 hours of training, currently crewmembers other than pilots, § 63.3(a) permit a pilot flightcrew member to required in a complex or turbine- would be revised to permit a flightcrew carry a temporary document provided powered airplane, to also be completed member to carry a temporary document by a part 119 certificate holder under an in a TAA. Coordinated revisions would provided by a part 119 certificate holder approved certificate verification plan as be made in § 61.129(b)(3)(ii) for clarity under an approved certificate a required pilot certificate for operating and consistency purposes only. verification plan as a required flight a civil aircraft of the United States. Section 61.159(c)(1) would be revised engineer certificate for operating a civil Section 61.39 would be revised to add to set forth the requirements for logging aircraft of the United States. a provision that would require a pilot SIC pilot time in an operation that does Section 63.16 would be revised to who has logged flight time under the not require an SIC by type certification update the process for replacement of a SIC professional development program of the aircraft or the regulations under lost or destroyed airman certificate or requirements of § 61.159(c)(1) to present which the flight is being conducted. medical certificate and to add a process

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for replacement of a lost or destroyed approval to provide a temporary agencies to analyze the economic knowledge test report. document verifying a flightcrew impact of regulatory changes on small In part 91, general operating and flight member’s airman certificate and entities. Third, the Trade Agreements rules, § 91.109(c) would be revised to medical certificate privileges under an Act (Pub. L. 96–39) prohibits agencies permit a sport pilot instructor who has approved certificate verification plan set from setting standards that create obtained the proposed endorsement in forth in the certificate holder’s unnecessary obstacles to the foreign § 61.412 to serve as a safety pilot only operations specifications. commerce of the United States. In for the purpose of providing flight Section 135.99 would be revised to developing U.S. standards, this Trade training on control and maneuvering add paragraph (c) to permit a part 135 Act requires agencies to consider solely by reference to the instruments to certificate holder to receive approval of international standards and, where a sport pilot applicant seeking a solo an SIC professional development appropriate, that they be the basis of endorsement in an airplane with a Vh program via operations specifications U.S. standards. Fourth, the Unfunded greater than 87 knots CAS. (Ops Specs) in order to allow their Mandates Reform Act of 1995 (Pub. L. Section 91.313 would be revised to pilots to log time as SICs in an operation 104–4) requires agencies to prepare a permit owners/operators of aircraft that does not require an SIC by type written assessment of the costs, benefits, certificated in the restricted category to certification of the aircraft or the and other effects of proposed or final operate those aircraft for the purpose of regulations under which the flight is rules that include a Federal mandate providing pilot training and testing, to being conducted. The paragraph likely to result in the expenditure by pilots employed by the operator to includes requirements related to the State, local, or tribal governments, in the perform the special purpose operation, certificate holder, aircraft, and pilots aggregate, or by the private sector, of that leads to a type rating designation involved. Section 135.99(d) would state $100 million or more annually (adjusted required by § 61.31(a) (and an ATP that certificate holders who are for inflation with base year of 1995). certificate obtained concurrently with a authorized to operate as a basic This portion of the preamble type rating). The section would also be operator, single PIC operator, or single summarizes the FAA’s analysis of the amended to allow flights to be pilot operator would not be permitted to economic impacts of this proposed rule. conducted in restricted category aircraft obtain approval to conduct an SIC We suggest readers seeking greater for the purpose of designating professional development program. detail read the full regulatory examiners and training center Section 135.245 would be revised to evaluation, a copy of which we have evaluators and qualifying FAA remove the reference to part 61 in placed in the docket for this rulemaking. inspectors in the aircraft type and § 135.245(a) and move the current In conducting these analyses, FAA conducting oversight and observation of instrument experience requirements in has determined that this proposed rule: designated examiners and training § 61.57(c)(1) and (2) to new § 135.245(c). (1) Has benefits that justify its costs; (2) center evaluators. In part 141, pilot schools, § 141.5(d) is not an economically ‘‘significant Section 91.531 would be revised to would be revised to add an end-of- regulatory action’’ as defined in section allow certain large airplanes that are not course test for a special curricula course 3(f) of Executive Order 12866; (3) is not type-certificated to be operated without approved under § 141.57 to the list of ‘‘significant’’ as defined in DOT’s a pilot who is designated as SIC, activities a pilot school may use for the Regulatory Policies and Procedures; (4) provided that those airplanes: (1) Were FAA to issue a pilot school certificate. would have a positive significant originally designed with only one pilot Appendix D to part 141, commercial economic impact on a substantial station; or (2) were originally designed pilot certification course, would be number of small entities; (5) would not with more than one pilot station for revised to allow commercial pilot create unnecessary obstacles to the purposes of flight training or for other certification courses to reflect the foreign commerce of the United States; purposes, but were operated by a branch proposed relief in § 61.129(a)(3)(ii) that and (6) would not impose an unfunded of the United States armed forces or the would permit a pilot seeking a mandate on state, local, or tribal armed forces of a foreign contracting commercial pilot certificate with a governments, or on the private sector by State to the Convention on International single engine class rating to complete exceeding the threshold identified Civil Aviation with only one pilot. The the 10 hours of training in one, or a above. These analyses are summarized section would also be revised to combination of, a TAA, a complex below, and a full discussion of the eliminate redundancies and reorganized airplane, or a turbine-powered airplane. benefits and costs is provided in the for purposes of clarification by placing Appendix I to part 141, additional regulatory evaluation included in the all affirmative requirements for a SIC in aircraft category and/or class rating docket for this rulemaking. paragraph (a) and all exceptions thereto course, section 4, paragraph (k)(2) in paragraph (b). Who Is Potentially Affected by This would be revised by renumbering two In part 121, operating requirements: Rule? paragraphs, both of which are currently domestic, flag, and supplemental designated (iv). The people who benefit from this rule operations, § 121.383(c) would be would be pilots, student pilots, flight revised to permit a certificate holder to VII. Regulatory Notices and Analyses instructors, military pilots seeking obtain approval to provide a temporary A. Regulatory Evaluation civilian ratings, and pilot schools. document verifying a flightcrew member’s airman certificate and Changes to Federal regulations must Assumptions medical certificate privileges under an undergo several economic analyses. approved certificate verification plan set First, Executive Order 12866 and 1. Analysis Time Period ...... 5 Years 2. Discount Rate ...... 7% forth in the certificate holder’s Executive Order 13563 direct that each operations specifications. Federal agency shall propose or adopt a In part 135, operating requirements: regulation only upon a reasoned Total Benefits and Costs commuter and on demand operations determination that the benefits of the This proposed rule has 12 separate and rules governing persons on board intended regulation justify its costs. provisions impacting different sections such aircraft, § 135.95 would be revised Second, the Regulatory Flexibility Act of parts 61, 63, 91, 121, 135, and 141 of to permit a certificate holder to obtain of 1980 (Pub. L. 96–354) requires the Federal Aviation Regulations. A

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separate analysis was conducted for analyses quantified cost savings once provisions, the sections of the current each of the 12 provisions. From these identified are discussed as benefits, and Federal Aviation Regulations that would analyses the FAA determined that the not negative savings. Over a five year be affected by this proposed rulemaking, proposed changes were either minimal analysis period the quantified benefits a summary of the impact for each of the cost, had unquantified benefits which (cost savings) are about $112.2 million, twelve proposed provisions and the exceeded minimal costs, or had or $99.0 million in present value at a 7 total cost savings, of the proposals with quantified cost savings. These analyses percent discount rate. quantified benefits, over the analysis are discussed in detail in a separate The following table shows the number interval. regulatory evaluation. Throughout these and title of the twelve proposed rule

TABLE 3—SUMMARY OF THE PROPOSED RULE PROVISIONS

Total cost savings (benefits) for 5-year Provision Sections affected Summary analysis period

Instructor requirement 61.51(g)(5) ...... Removes the requirement to have an instruc- The cost savings benefits equal about $12.1 when using an FFS, tor present when accomplishing flight expe- million or $10.6 million in present value at FTD, or ATD to com- rience requirements for instrument recency a 7 percent discount rate. plete instrument in an FAA-approved FFS, FTD, or ATD. recency. Instrument recency ex- 61.57(c) ...... Reduces the frequency of instrument recency The cost savings benefits equal about $79.4 perience require- 135.245 flight experience accomplished exclusively million or $69.6 million in present value at ments. in ATDs from every two months to every a 7 percent discount rate. six months. Reduces the number of tasks and removes the three-hour flight time requirement when accomplishing instrument recency flight ex- perience in ATDs. Second in Command 61.1 ...... Allows a pilot to log SIC flight time in a multi- The FAA considers this to be a minimum cost for part 135 oper- 61.39(a) engine airplane in a part 135 operation that rule with positive, but difficult to quantify, ations. 61.51 (e),(f) does not require a SIC. benefits. 61.159(a),(c) 61.161 135.99(c) Completion of commer- 61.1 ...... Allows a TAA to be used to meet some or all The cost savings benefits equal about $9.7 cial pilot training and 61.129(a)(3)(ii) of the currently required 10 hours of train- million or $8 million in present value at a 7 testing in technically appendix D to part ing that must be completed in a complex or percent discount rate. advanced airplanes 141. turbine-powered airplane for the single en- (TAA). gine commercial pilot certificate. TAA could be used in combination with, or instead of, a complex or turbine-powered airplane to meet the aeronautical experience require- ment and could be used to complete the practical test. Flight instructors with 61.195(b), (c)...... Removes the requirement that instrument The cost savings benefits equal about $1.7 instrument ratings only instructors have category and class million or $1.5 million in present value at a only. ratings on their flight instructor certificates 7 percent discount rate. to provide instrument training. Sport pilot flight instruc- 61.412 ...... Allows a sport pilot only instructor to provide Sport pilot flight instructors who choose to re- tor training privilege. 61.415(h) training on control and maneuvering solely ceive this endorsement have determined 91.109(c) by reference to the flight instruments (for that they would be able to recoup this cost sport pilot students only). by providing training to sport pilot students. Credit for training ob- 61.99 ...... Allows sport pilot training to be credited for If all 5,259 sport pilots choose to use the tained as a sport 61.109(i) certain aeronautical experience require- lower cost option, the cost savings would pilot. ments for a higher certificate or rating. exceed $8.0 million. We have used $8.0 million as a one-time event in the benefit- cost analysis. Include special cur- 141.5(d) ...... Allows part 141 pilot schools to count FAA This proposed rule provision provides poten- ricula courses in re- approved ‘‘special curricula’’ course com- tial unquantified benefits which exceed newal of pilot school pletions (graduates of these courses) to- minimal compliance costs. certificate. ward certificate renewal requirements. Temporary validation of 61.3(a) ...... Allows a confirmation document issued by a This proposed rule would relieve both the flightcrew members’ 63.3(a) part 119 certificate holder authorized to FAA and stakeholders from the burden of certificates. 63.16 conduct operations under part 121 or 135 the exemption process, which must be 121.383(c) to serve as a temporary verification of the completed every two years. The cost sav- 135.95 airman certificate and/or medical certificate ings, while real, are small and believed to during domestic operations for up to 72 be de minimis. hours. Military competence for 61.197 ...... Allows the addition of a flight instructor rating The cost savings benefits equal about $1.4 flight instructors. 61.199 based on military competency to ‘‘simulta- million or $1.2 million in present value at a neously qualify’’ for the reinstatement of 7 percent discount rate. that expired FAA flight instructor certificate.

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TABLE 3—SUMMARY OF THE PROPOSED RULE PROVISIONS—Continued

Total cost savings (benefits) for 5-year Provision Sections affected Summary analysis period

Restricted category air- 91.313 ...... Allows an operator to request and obtain a The benefits will exceed costs for those who craft training and letter of deviation authority to conduct train- choose to comply. testing allowances. ing and testing and other directly related activities for employees to obtain a type rating in a restricted category aircraft. Single pilot operations 91.531 ...... Allows pilots to operate certain large and tur- The benefits will exceed costs for those who of former military air- bojet-powered airplanes (specifically former choose to comply. planes and other air- military and some airplanes not type certifi- planes with special cated in the standard category) without a airworthiness certifi- pilot who is designated as SIC. cates.

B. Regulatory Flexibility Determination economic impact. The provisions of this final agency rule that may result in an The Regulatory Flexibility Act of 1980 proposed rule are largely cost-relieving. expenditure of $100 million or more (in (Pub. L. 96–354) (RFA) establishes ‘‘as a In fact, this proposed rule is expected to 1995 dollars) in any one year by State, principle of regulatory issuance that provide $112 million in cost relief. local, and tribal governments, in the agencies shall endeavor, consistent with Therefore, this proposed rule would aggregate, or by the private sector; such the objectives of the rule and of have a positive effect on a substantial a mandate is deemed to be a ‘‘significant regulatory action.’’ The FAA currently applicable statutes, to fit regulatory and number of small entities. Therefore, as provided in section uses an inflation-adjusted value of informational requirements to the scale 605(b), the head of the FAA certifies $155.0 million in lieu of $100 million. of the businesses, organizations, and that this proposed rulemaking would This proposed rule does not contain governmental jurisdictions subject to result in a significant positive economic such a mandate. Therefore, the regulation. To achieve this principle, impact on a substantial number of small requirements of Title II of the Act do not agencies are required to solicit and entities, as it imposes no new costs. apply. consider flexible regulatory proposals The FAA solicits comments regarding E. Paperwork Reduction Act and to explain the rationale for their this determination. actions to assure that such proposals are The Paperwork Reduction Act of 1995 given serious consideration.’’ The RFA C. International Trade Impact (44 U.S.C. 3507(d)) requires that the covers a wide range of small entities, Assessment FAA consider the impact of paperwork including small businesses, not-for- The Trade Agreements Act of 1979 and other information collection profit organizations, and small (Pub. L. 96–39), as amended by the burdens imposed on the public. governmental jurisdictions. Uruguay Round Agreements Act (Pub. According to the 1995 amendments to Agencies must perform a review to L. 103–465), prohibits Federal agencies the Paperwork Reduction Act, (5 CFR determine whether a rule will have a from establishing standards or engaging 1320.8(b)(2)(vi)), an agency may not significant economic impact on a in related activities that create collect or sponsor the collection of substantial number of small entities. If unnecessary obstacles to the foreign information, nor may it impose an the agency determines that it will, the commerce of the United States. information collection requirement agency must prepare a regulatory Pursuant to these Acts, the unless it displays a currently valid flexibility analysis as described in the establishment of standards is not Office of Management and Budget RFA. considered an unnecessary obstacle to (OMB) control number. As required by However, if an agency determines that the foreign commerce of the United the Paperwork Reduction Act of 1995 a rule is not expected to have a States, so long as the standard has a (44 U.S.C. 3507(d)), the FAA has significant economic impact on a legitimate domestic objective, such as submitted these proposed information substantial number of small entities, the protection of safety, and does not collection amendments to OMB for its section 605(b) of the RFA provides that operate in a manner that excludes review. the head of the agency may so certify imports that meet this objective. The Overview: A majority of the and a regulatory flexibility analysis is statute also requires consideration of provisions proposed in this NPRM do not required. The certification must international standards and, where not impose an additional recordkeeping include a statement providing the appropriate, that they be the basis for burden, but rather provide alternative factual basis for this determination, and U.S. standards. methods of qualification when pursuing the reasoning should be clear. The FAA has assessed the potential an airman privilege, certificate, or Most of the parties affected by this effect of this proposed rule and rating. The overall requirements and proposed rule would be small determined that it would have only a documentation remain the same for businesses such as flight instructors, domestic impact and therefore would those provisions. Some of the provisions aviation schools, fixed base operators, not create unnecessary obstacles to the involve training and testing and do not and small part 135 air carriers. There are foreign commerce of the United States. require OMB supporting statements. over 1,000 part 135 air carriers alone. Some of the provisions that are The general lack of publicly available D. Unfunded Mandates Assessment designated as voluntary are also financial information from these small Title II of the Unfunded Mandates considered without paperwork burden. businesses precludes a financial Reform Act of 1995 (Pub. L. 104–4) Title 5 CFR 1320.3(h) states that analysis of these small businesses. requires each Federal agency to prepare ‘‘* * * ‘Information’ does not generally The FAA believes that this proposed a written statement assessing the effects include items in the following rule would have a significant positive of any Federal mandate in a proposed or categories; * * * (1) Affidavits, oaths,

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affirmations, certifications, receipts, choose to conduct experience solely in certificate. The FAA has no basis on changes of address, consents, or ATDs, the FAA can only estimate which to determine the number of pilots acknowledgments; provided that they whether, and by how much, that burden who might choose to take advantage of entail no burden other than that might be reduced for the overall pilot a SIC PDP sponsored by a part 135 necessary to identify the respondent, the population with an instrument rating as operator that is approved to conduct a date, the respondent’s address, and the the FAA has no information to make an SIC PDP. In the regulatory evaluation, nature of the instrument * * *.’’ The initial determination of the use of ATDs, the FAA is seeking comments, with proposed provision regarding the FTDs, FFSs, or aircraft. The FAA further supporting data, regarding the number instructor requirement when using a emphasizes that the pilot would still be of pilots who might choose to take FFS, FTD, or ATD to complete required to log the time, but notes that advantage of a program to become a SIC instrument recency experience would, for some pilots the frequency of logging in a part 135 operation using a SIC PDP. among other things, remove the instrument currency would be reduced The FAA is proposing to amend requirement that an instructor sign the from every two months to every six § 135.99 by adding paragraph (c) to pilot’s logbook. This signature served as months. permit a part 119 certificate holder to an instructor’s affirmation of presence As discussed in the regulatory receive approval of an SIC professional during the gaining of recency evaluation accompanying this NPRM, as development program via operations experience. Therefore, as the signature of June 30, 2015, there were 305,976 specifications (Ops Specs) in order to by the flight instructor merely instrument-rated pilots,103 including allow the certificate holder’s pilots to documents the instructor’s presence, it ATP pilots, in the United States. As of log time under this proposal. This Ops has not been considered an information June 23, 2015, the FAA estimates that Spec would outline the pilot collection, and the removal of its 104,424 air carrier pilots 104 are qualification, training, and requirement does not constitute a exempted, leaving 201,552 instrument recordkeeping requirements necessary burden reduction. rated pilots that could benefit from this to receive approval of the program. Ops The FAA has identified three relief. Of these, the FAA estimates that Specs are paragraphs written and issued provisions with PRA implications that, only 50% (100,776) are maintaining to the operator to provide specific if finalized as proposed, will require their currency. Of this group it is likely requirements for certain FAA approved amended OMB supporting statements as that only 15% (15,116) use an ATD for operations. The burden for initial listed below: approval would be reflected in this part • currency and would potentially benefit Instrument recency experience from this relief. For those pilots, this 119 information collection. requirements (information collection would reduce the record keeping The information collection already 2120–0021), accounts for an average of 50 Ops Spec • requirements of logging time from 6 Second in command for part 135 times a year to two times a year, when amendments per operator annually operations (information collection logging instrument currency exclusively under § 119.51(c). The FAA has 2120–0021, 2120–0593, 2120–0039), in an ATD. This provision does not determined that this annual estimate of • Include special curricula courses in change the requirement found in 14 CFR Ops Spec changes is too high and is renewal of pilot school certificate 61.51 that a pilot log his or her time currently 25 per year. This new estimate (information collection 2120–0009). while conducting these activities. As would include the modification that is Instrument Recency Requirements noted previously, the only difference is necessary to conduct the SIC training whether that time is logged in an ATD program. The FAA estimates that each The FAA is proposing to reduce the Ops Spec change takes 0.2 hours (12 as compared with an FFS, FTD, or frequency of instrument recent flight minutes). aircraft. Of the 15,116 pilots that would experience accomplished exclusively in The current overall burden for the ATDs from every two months to every use an ATD exclusively to maintain average number of Op Specs per year is six months. The FAA is further currency, it is expected that the less and will be reflected under proposing to reduce the number of tasks reduction in paperwork (logging time) × § 119.51(c) of the supporting statement required to be performed and remove would be 0.1 hours (6 minutes) 4 × for approved Information collection flight time hour requirements when times a year 15,116 pilots = 6,046.4 2120–0593, ‘‘Part 119 Certification: Air accomplishing instrument recent flight hours saved annually. The FAA seeks Carriers and Commercial Operators.’’ experience in ATDs. While the comments, with supporting data, A certificate holder would submit for proposed requirements are addressed in regarding the number of pilots using FAA approval of proposed curriculums § 61.57(c), the requirement that such ATDs who might use this provision. for a SIC training that would need to time be logged is addressed in § 61.51. This reduced burden when logging time meet the requirements specified in This provision would reduce the for currency would be estimated in the guidance (within an advisory circular) requirements for persons using ATDs to OMB supporting statement for approved for the development of a SIC make those requirements equivalent to information collection 2120–0021, Professional Development Program. As the requirements for persons using ‘‘Pilots, Flight Instructors and Ground discussed in the regulatory evaluation aircraft, FFS, or FTDs. However, the Instructors.’’ accompanying the NPRM, discussions FAA is not requiring that any person Second in Command Time in Part 135 with the Regional Air Cargo Carriers use any particular method to conduct Operations Association indicate that all of their air this training. The FAA does not have carrier members would be interested in specific data on which to base an The FAA is proposing to allow pilots providing such a program. RACCA has estimate of the use of aircraft, FFSs, to log SIC time in multi-engine airplanes approximately 50 members who provide FTDs, or ATDs for the conduct of this that do not require an SIC in a part 135 part 135 air cargo services. However, the time, as the FAA does not require or operation. This would be creditable FAA has no basis on which to estimate receive information regarding how the total flight time in pursuit of an ATP the number of air cargo carriers that experience was gained by each pilot. might choose to either develop a SIC 103 Source: Comprehensive Airmen Information Thus, while this proposed provision System (CAIS). PDP, or implement and offer a SIC PDP would reduce recordkeeping 104 Source: SPAS NVIS Air Operator Record List, based on existing operations. It is requirements for those persons who 6/23/2015. estimated that the operator would

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require approximately 40 hours to requirements for certificates or ratings The FAA notes that this provision is prepare and submit such new in a reliable record.’’ voluntary and also considers this to be curriculums for FAA approval, or 20 The FAA notes that this provision is a minimum cost rule provision with hours to submit amended curricula. The voluntary and also considers this to be positive, but unquantifiable, benefits. FAA seeks comments, including a minimum cost rule provision with The time and burden estimated for a supporting data, regarding the number positive, but unquantifiable, benefits. Part 141 Pilot School to develop and of operators who might choose to use The time and burden estimated for the submit for approval will be provided in this provision annually, and whether required logbook endorsement verifying the OMB supporting statement for those operators already have training the pilot is qualified to log this SIC time approved information collection 2120– curricula in place or would need to would be provided in approved 0009, ‘‘Operating Requirements: Pilot develop new curricula to meet the information collection 2120–0021, Schools—FAR Part 141.’’ The statement proposed requirements. ‘‘Pilots, Flight Instructors and Ground will also be adjusted for the current This change would be reflected in the Instructors.’’ number of FAA certificated pilot supporting statement for approved Pilot School Use of Special Curricula schools currently listed at 581. information collection 2120–0039, Courses for Renewal of Certificate The below summarizes the changes ‘‘Operating Requirements: Commuter The FAA is proposing to amend made to each of the affected information and On Demand Operations.’’ § 141.5(d) to allow part 141 pilot collections. For those pilots who become qualified schools that hold training course Information Collection 2120–0009: Pilot to log SIC time under this provision, approvals for special curricula courses Schools—FAR Part 141 this would increase the recordkeeping to renew their certificates based on their requirements by the addition of these students’ successful completion of an Abstract: 49 CFR part 44707 logbook endorsements. The FAA end-of-course test for these FAA authorizes certification of civilian estimates that the pilots logging SIC approved courses. There are currently schools giving instruction in flying. time would require approximately 1.0 hundreds of FAA approved special Information collected is used for hours annually to log the various curricula courses in use by active pilot certification and to determine applicant endorsements proposed in this schools but it is likely that with this compliance. The information on FAA provision. In information collection new allowance, some schools will Form 8420–8, Application for Pilot 2120–0021, the FAA states: ‘‘Section request new special curricula course School Certificates, is required from 61.51, Pilot logbooks—requires pilots to approvals. The FAA seeks comments applicants who wish to be issued pilot enter flight time that is to be credited regarding the number of schools that school certificates and associated toward experience or training might use this provision. ratings.

TABLE 4—SUMMARY OF CHANGES TO INFORMATION COLLECTION 2120–0009

Provision Frequency Per respondent

New special curricula approvals ...... As needed ...... 0.5 hours. New applications ...... As needed ...... 0.5 hours. Adding special curricula ...... As needed ...... 0.5 hours.

Information Collection 2120–0021: instructors, and ground instructors. The Certification: Pilots, Flight Instructors, information collected is used to and Ground Instructors determine compliance with applicant Abstract: 14 CFR part 61 prescribes eligibility, via FAA Form 8710–1. certification standards for pilots, flight

TABLE 5—SUMMARY OF CHANGES TO INFORMATION COLLECTION 2120–0021

Provision Frequency Per respondent

Instrument Recency Experience Requirements ...... (4 times per year) ...... (0.1 hours). Second in command time in part 135 operations ...... Annual ...... 1 hour.

Information Collection 2120–0039: operating certificates. 14 CFR prescribes Operating Requirements: Commuter and requirement for Air Carrier/Commercial On Demand Operations Operators. The information collected Abstract: Title 49 U.S.C., Section shows compliance and applicant 44702 authorizes issuance of air carrier eligibility.

TABLE 6—SUMMARY OF CHANGES TO INFORMATION COLLECTION 2120–0039

Provision Frequency Per respondent

New SIC professional development program ...... As needed* ...... 40 hours.

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TABLE 6—SUMMARY OF CHANGES TO INFORMATION COLLECTION 2120–0039—Continued

Provision Frequency Per respondent

Amend existing PIC professional development program ...... As needed* ...... 20 hours. * The FAA estimates that all operators intending to conduct a SIC professional development program will apply to do so in the first year of this information collection. The annual burden hours will be reduced in years 2 and 3 of this information collection.

Information Collection 2120–0593: Aviation Regulations Part 135 and 121 Certification: Air Carriers and operators. The FAA will use the Commercial Operators information collected to ensure Abstract: The respondents to this compliance and adherence to information collection are Federal regulations.

TABLE 7—SUMMARY OF CHANGES TO INFORMATION COLLECTION 2120–0593

Annual burden Provision Frequency Per respondent hours

Initial approval of Operations Specification for SIC As needed ...... 0.2 hours ...... professional development program.

The agency is soliciting comments The FAA notes that, under proposed power and responsibilities among the to— § 61.159(c), pilots would be permitted to various levels of government, and, • Evaluate whether the proposed log second in command flight time in therefore, would not have Federalism information requirement is necessary for part 135 operations when a second pilot implications. the proper performance of the functions is not required. ICAO standards do not B. Executive Order 13211, Regulations of the agency, including whether the recognize the crediting of flight time That Significantly Affect Energy Supply, information will have practical utility; when a pilot is not required by the Distribution, or Use • Evaluate the accuracy of the aircraft certification or the operation agency’s estimate of the burden; under which the flight is being The FAA analyzed this proposed rule • Enhance the quality, utility, and conducted. Accordingly, all pilots who under Executive Order 13211, Actions clarity of the information to be log flight time under this provision and Concerning Regulations that collected; and apply for an ATP certificate would have Significantly Affect Energy Supply, • Minimize the burden of collecting a limitation on the certificate indicating Distribution, or Use (May 18, 2001). The information on those who are to that the pilot does not meet the PIC agency has determined that it would not respond, including by using appropriate aeronautical experience requirements of be a ‘‘significant energy action’’ under automated, electronic, mechanical, or ICAO. This limitation may be removed the executive order and would not be other technological collection when the pilot presents satisfactory likely to have a significant adverse effect techniques or other forms of information evidence that he or she has met the on the supply, distribution, or use of technology. ICAO standards. energy. Individuals and organizations may G. Environmental Analysis C. Executive Order 13609, Promoting send comments on the information International Regulatory Cooperation collection requirement to the address FAA Order 1050.1F identifies FAA listed in the ADDRESSES section at the Executive Order 13609, Promoting actions that are categorically excluded International Regulatory Cooperation, beginning of this preamble by August from preparation of an environmental 10, 2016. Comments also should be (77 FR 26413, May 4, 2012) promotes assessment or environmental impact international regulatory cooperation to submitted to the Office of Management statement under the National and Budget, Office of Information and meet shared challenges involving Environmental Policy Act in the health, safety, labor, security, Regulatory Affairs, Attention: Desk absence of extraordinary circumstances. Officer for FAA, New Executive environmental, and other issues and to The FAA has determined this reduce, eliminate, or prevent Building, Room 10202, 725 17th Street rulemaking action qualifies for the NW., Washington, DC 20053. unnecessary differences in regulatory categorical exclusion identified in requirements. The FAA has analyzed F. International Compatibility and paragraph 5–6.6f and involves no this action under the policies and Cooperation extraordinary circumstances. agency responsibilities of Executive In keeping with U.S. obligations VIII. Executive Order Determinations Order 13609, and has determined that this action would have no effect on under the Convention on International A. Executive Order 13132, Federalism Civil Aviation, it is FAA policy to international regulatory cooperation. conform to ICAO Standards and The FAA has analyzed this proposed IX. Additional Information Recommended Practices to the rule under the principles and criteria of maximum extent practicable. The FAA Executive Order 13132, Federalism. The A. Comments Invited has reviewed the corresponding ICAO agency has determined that this action The FAA invites interested persons to Standards and Recommended Practices would not have a substantial direct participate in this rulemaking by and has identified the following effect on the States, or the relationship submitting written comments, data, or differences with these proposed between the Federal Government and views. The agency also invites regulations. the States, or on the distribution of comments relating to the economic,

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environmental, energy, or federalism • Accessing the Government (b) * * * impacts that might result from adopting Publishing Office’s Web page at http:// Aviation training device means a the proposals in this document. The www.fdsys.gov. training device, other than a full flight most helpful comments reference a Copies may also be obtained by simulator or flight training device, that specific portion of the proposal, explain sending a request to the Federal has been evaluated, qualified, and the reason for any recommended Aviation Administration, Office of approved by the Administrator. change, and include supporting data. To Rulemaking, ARM–1, 800 Independence * * * * * ensure the docket does not contain Avenue SW., Washington, DC 20591, or Pilot time means that time in which duplicate comments, commenters by calling (202) 267–9677. Commenters a person— should send only one copy of written must identify the docket or notice (i) Serves as a required pilot flight comments, or if comments are filed number of this rulemaking. crewmember; electronically, commenters should All documents the FAA considered in (ii) Receives training from an submit only one time. developing this proposed rule, authorized instructor in an aircraft, full The FAA will file in the docket all including economic analyses and flight simulator, flight training device, comments it receives, as well as a report technical reports, may be accessed from or aviation training device; summarizing each substantive public the Internet through the Federal (iii) Gives training as an authorized contact with FAA personnel concerning eRulemaking Portal referenced above. instructor in an aircraft, full flight simulator, flight training device, or this proposed rulemaking. Before acting List of Subjects on this proposal, the FAA will consider aviation training device; or (iv) Serves as second in command in all comments it receives on or before the 14 CFR Part 61 operations conducted under part 135 of closing date for comments. The agency Aircraft, Airmen, Aviation safety, this chapter when a second pilot is not may change this proposal in light of the Teachers. required under the type certification of comments it receives. 14 CFR Part 63 the aircraft or the regulations under Commenters are encouraged to Aircraft, Airman, Aviation safety. which the flight is being conducted, identify the provisions on which they provided the requirements in are commenting based on the title of the 14 CFR Part 91 § 61.159(c)(1) are satisfied. provisions used in Table 1 of this Aircraft, Airmen, Aviation safety. * * * * * preamble. Technically Advanced Airplane Proprietary or Confidential Business 14 CFR Part 121 (TAA) means an airplane equipped with Information: Commenters should not Air carriers, Aircraft, Airmen, an electronically advanced avionics file proprietary or confidential business Aviation safety. system that includes the following information in the docket. Such 14 CFR Part 135 installed components: information must be sent or delivered (i) An electronic Primary Flight directly to the person identified in the Aircraft, Airmen, Aviation safety. Display (PFD) that includes, at a FOR FURTHER INFORMATION CONTACT 14 CFR Part 141 minimum, an airspeed indicator, turn section of this document, and marked as coordinator, attitude indicator, heading proprietary or confidential. If submitting Airmen, Educational facilities, indicator, altimeter, and vertical speed information on a disk or CD ROM, mark reporting and recordkeeping indicator; and the outside of the disk or CD ROM, and requirements, Schools. (ii) An independent additional identify electronically within the disk or The Proposed Amendment Multifunction Display (MFD) that CD ROM the specific information that is includes, at a minimum, a Global proprietary or confidential. In consideration of the foregoing, the Positioning System (GPS) with moving Federal Aviation Administration Under 14 CFR 11.35(b), if the FAA is map navigation and an integrated two proposes to amend chapter I of title 14, aware of proprietary information filed axis autopilot. Code of Federal Regulations as follows: with a comment, the agency does not * * * * * place it in the docket. It is held in a PART 61—CERTIFICATION: PILOTS, ■ 3. In § 61.3, revise paragraph (a)(1)(iv), separate file to which the public does FLIGHT INSTRUCTORS, AND GROUND redesignate paragraph (a)(1)(v) as not have access, and the FAA places a INSTRUCTORS (a)(1)(vi), and add paragraph (a)(1)(v) to note in the docket that it has received read as follows: it. If the FAA receives a request to ■ 1. The authority citation for part 61 is examine or copy this information, it § 61.3 Requirement for certificates, revised to read as follows: ratings, and authorizations. treats it as any other request under the Freedom of Information Act (5 U.S.C. Authority: 49 U.S.C. 106(f), 106(g), 40113, (a) * * * (1) * * * 552). The FAA processes such a request 44701–44703, 44707, 44709–44711, 44729, 44903, 45102–45103, 45301–45302. (iv) A document conveying temporary under Department of Transportation authority to exercise certificate procedures found in 49 CFR part 7. ■ 2. Amend § 61.1(b) as follows: ■ a. Add a new definition of ‘‘aviation privileges issued by the Airmen B. Availability of Rulemaking training device’’ in alphabetical order. Certification Branch under § 61.29(e); Documents ■ b. Revise the definition of ‘‘pilot (v) When engaged in a flight operation within the United States for a part 119 An electronic copy of rulemaking time;’’ and, ■ certificate holder authorized to conduct documents may be obtained from the c. Add new definition of ‘‘technically advanced airplane’’ in alphabetical operations under parts 121 or 135, a Internet by— temporary document provided by that • order. Searching the Federal eRulemaking The revisions and additions read as certificate holder under an approved Portal (http://www.regulations.gov); follows: certificate verification plan; or • Visiting the FAA’s Regulations and * * * * * Policies Web page at http:// § 61.1 Applicability and definitions. ■ 4. In § 61.39, revise paragraph (a)(3) to www.faa.gov/regulations_policies or * * * * * read as follows:

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§ 61.39 Prerequisites for practical tests. which the flight is being conducted, operation listed in § 61.98 of this part (a) * * * provided the requirements in that consists of at least: (3) Have satisfactorily accomplished § 61.159(c)(1) are satisfied. (i) Except as provided in § 61.100 of the required training and obtained the (g) * * * this part, 2 hours of flight training en aeronautical experience prescribed by (4) A person may use time in a full route to an airport that is located more this part for the certificate or rating flight simulator, flight training device, than 25 nautical miles from the airport sought, and if applying for the practical or aviation training device for acquiring where the applicant normally trains, test with flight time accomplished instrument aeronautical experience for a which includes at least three takeoffs under § 61.159(c)(1), present a copy of pilot certificate or rating provided an and three landings at the airport located the records required by § 135.63(a)(4)(vi) authorized instructor is present to more than 25 nautical miles from the and (x) of this chapter; observe that time and signs the person’s airport where the applicant normally * * * * * logbook or training record to verify the trains; and ■ 5. Amend § 61.51 as follows: time and the content of the training (ii) Three hours of flight training with ■ a. In paragraphs (b)(1)(iii), (b)(1)(iv), session. an authorized instructor in the aircraft (b)(2)(v), (b)(3)(iii), (b)(3)(iv), (k)(1)(ii), (5) A person may use time in a full for the rating sought in preparation for and (k)(2)(ii), remove the words ‘‘flight flight simulator, flight training device, the practical test within the preceding 2 simulator’’ and add in their place the or aviation training device for satisfying calendar months from the month of the words ‘‘full flight simulator’’; instrument recency experience test. ■ b. Revise paragraph (e)(1)(i); requirements provided a logbook or (2) Three hours of solo flying in the ■ c. Add paragraph (e)(5); training record is maintained to specify aircraft for the rating sought, on the ■ d. Revise paragraphs (f)(1) and (f)(2); the approved training device, time, and areas of operation listed in § 61.98 of ■ e. Add paragraph (f)(3); the content. this part that apply to the aircraft ■ f. Revise paragraph (g)(4); (h) Logging training time. (1) A person category and class rating sought. ■ g. Add paragraph (g)(5); and may log training time when that person (b) The holder of a sport pilot ■ h. Revise paragraph (h)(1). receives training from an authorized certificate may credit 10 hours of flight The revisions and additions read as instructor in an aircraft, full flight training received from a flight instructor follows: simulator, flight training device, or with a sport pilot rating toward the aviation training device. training requirements of this section § 61.51 Pilot logbooks. * * * * * provided the flight training is * * * * * ■ 6. Amend § 61.57 as follows: accomplished in the same category and (e) * * * ■ a. In paragraphs (a)(3), (b)(2), (d)(1)(ii), class of aircraft as the recreational pilot (1) * * * (e)(4)(ii)(D), and (g) introductory text, certificate rating sought. (i) Except when logging flight time remove the words ‘‘flight simulator’’ ■ 8. In § 61.109, amend paragraph (k) by under § 61.159(c)(1), when the pilot is and add in their place the words ‘‘full removing the words ‘‘flight simulator’’ the sole manipulator of the controls of flight simulator’’; and adding in their place the words an aircraft for which the pilot is rated, ■ b. Revise paragraph (c)(2); remove ‘‘full flight simulator’’, and add or has sport pilot privileges for that paragraphs (c)(3) through (c)(5); and, paragraph (l) to read as follows: category and class of aircraft, if the redesignate paragraph (c)(6) as § 61.109 Aeronautical experience. aircraft class rating is appropriate; paragraph (c)(3). * * * * * The revisions read as follows: * * * * * (5) An authorized flight instructor (l) Permitted credit for flight training may log all flight time while acting as § 61.57 Recent flight experience: Pilot in received from a flight instructor with a pilot in command of an operation under command. sport pilot rating. The holder of a sport part 135 if the flight is conducted in * * * * * pilot certificate may credit flight accordance with an approved second-in- (c) * * * training received from a flight instructor command professional development (2) Use of a full flight simulator, flight with a sport pilot rating as follows: program that meets the requirements of training device, or aviation training (1) For a private pilot certificate with § 135.99(c). device for maintaining instrument an airplane category single engine class (f) * * * experience. A pilot may accomplish the rating or private pilot certificate with a (1) Is qualified in accordance with the requirements in paragraph (c)(1) of this rotorcraft category gyroplane class second-in-command requirements of section in an approved full flight rating, a person may credit 10 hours of § 61.55 of this part, and occupies a simulator, flight training device, or flight training received from a flight crewmember station in an aircraft that aviation training device provided the instructor provided the flight training is requires more than one pilot by the device represents the category of aircraft accomplished in the same category and aircraft’s type certificate; for the instrument rating privileges to be class of aircraft for the rating sought. (2) Holds the appropriate category, maintained and the pilot performs the (2) For a private pilot certificate with class, and instrument rating (if an tasks and iterations in simulated a lighter-than-air category airship class instrument rating is required for the instrument conditions. rating, a pilot may credit 12.5 hours of flight) for the aircraft being flown, and * * * * * flight training received from a flight more than one pilot is required under ■ 7. Revise § 61.99 to read as follows: instructor with a sport pilot rating the type certification of the aircraft or provided that training was the regulations under which the flight is § 61.99 Aeronautical experience. accomplished in an airship. being conducted; or (a) A person who applies for a (3) For a private pilot certificate with (3) Serves as second in command in recreational pilot certificate must a lighter-than-air category balloon class operations conducted under part 135 of receive and log at least 30 hours of flight rating, a pilot may credit 5 hours of this chapter when a second pilot is not time that includes at least— flight training including 3 training required under the type certification of (1) 15 hours of flight training from an flights received from a flight instructor the aircraft or the regulations under authorized instructor on the areas of with a sport pilot rating provided that

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flight training was accomplished in a which the flight is being conducted, which the flight instructor does not balloon. provided— hold: ■ 9. In § 61.129: (i) The experience is accomplished as (1) A flight instructor certificate with ■ a. Revise paragraphs (a)(3)(ii) and part of a second-in-command the applicable category and class rating; (b)(3)(ii); and professional development program and ■ b. In paragraphs (c)(3)(i), (d) approved by the Administrator under (2) A pilot certificate with a type introductory text, (d)(3)(i), and (i), § 135.99 of this chapter; rating, if appropriate. remove the words ‘‘flight simulator’’ (ii) The pilot in command of the (c) Instrument Rating. A flight and add in their place the words ‘‘full operation certifies in the pilot’s logbook instructor may conduct instrument flight simulator’’. The revisions read as that the second-in-command pilot time training for the issuance of an follows: was accomplished under this section; instrument rating, a type rating not and limited to VFR, or the instrument § 61.129 Aeronautical experience. (iii) The pilot time may not be logged training required for commercial pilot (a) * * * as pilot-in-command time even when and airline transport pilot certificates if (3) * * * the pilot is the sole manipulator of the the flight instructor holds an instrument (ii) 10 hours of training in a complex controls and may not be used to meet rating appropriate to the aircraft used airplane, a turbine-powered airplane, or the aeronautical experience for the instrument training on his or her a technically advanced airplane (TAA); requirements in paragraphs (a)(1) flight instructor certificate, and: or for an applicant seeking a single- through (a)(5) of this section. (1) Meets the requirements of engine seaplane rating, 10 hours of * * * * * paragraph (b) of this section; or training in a seaplane that has flaps and ■ 11. In § 61.161, amend paragraph (b) (2) Holds a commercial pilot a controllable pitch propeller; by removing the words ‘‘flight certificate or airline transport pilot * * * * * simulator’’ and adding in their place the certificate with the appropriate category (b) * * * words ‘‘full flight simulator’’, and add and class ratings for the aircraft in (3) * * * paragraphs (c), (d), and (e) to read as which the instrument training is (ii) 10 hours of training in a follows: provided if the pilot receiving multiengine complex or turbine- instrument training holds a pilot powered airplane; or for an applicant § 61.161 Aeronautical experience: Rotorcraft category and helicopter class certificate with category and class seeking a multiengine seaplane rating, rating. ratings appropriate to the aircraft in 10 hours of training in a multiengine which the instrument training is being * * * * * seaplane that has flaps and a provided. (c) Flight time logged under controllable pitch propeller; § 61.159(c)(1) of this chapter may be * * * * * * * * * * counted toward the 1,200 hours of total ■ 13. In § 61.197, revise paragraph ■ 10. In § 61.159: time as a pilot required by paragraph (a) (a)(2)(iv) and (c) to read as follows: ■ a. Amend paragraph (a)(4) by of this section. removing the words ‘‘flight simulator’’ § 61.197 Renewal requirements for flight (d) An applicant is issued an airline instructor certification. and adding in their place the words transport pilot certificate with the (a) * * * ‘‘full flight simulator’’; limitation, ‘‘Holder does not meet the ■ b. Revise the introductory text of pilot in command aeronautical (2) * * * paragraph (a)(5), the introductory text of experience requirements of ICAO,’’ as (iv) A record showing that, within the paragraph (c), and paragraph (c)(1). The prescribed under Article 39 of the preceding 24 months from the month of revisions read as follows: Convention on International Civil application, the flight instructor passed Aviation, if the applicant does not meet an official U.S. Armed Forces § 61.159 Aeronautical experience: Airplane proficiency check in an aircraft for category rating. the ICAO requirements contained in Annex 1 ‘‘Personnel Licensing’’ to the which the military instructor already (a) * * * holds a rating or in an aircraft for an (5) 250 hours of flight time in an Convention on International Civil Aviation, but otherwise meets the additional rating. airplane as a pilot in command, or when * * * * * serving as a required second in aeronautical experience requirements of this section. (c) The practical test required by command flightcrew member paragraph (a)(1) of this section may be performing the duties of pilot in (e) An applicant is entitled to an airline transport pilot certificate without accomplished in a full flight simulator command while under the supervision or flight training device if the test is of a pilot in command, or any the ICAO limitation specified under paragraph (d) of this section when the accomplished pursuant to an approved combination thereof, which includes at course conducted by a training center least— applicant presents satisfactory evidence of having met the ICAO requirements certificated under part 142 of this * * * * * under paragraph (d) of this section and chapter. (c) A commercial pilot may log the otherwise meets the aeronautical ■ 14. In § 61.199, add paragraphs (a)(3), following second-in-command pilot experience requirements of this section. (c) and (d) to read as follows: time or flight-engineer flight time ■ 12. In § 61.195, revise paragraphs (b) § 61.199 Reinstatement requirements of an toward the 1,500 hours of total time as and (c) to read as follows: a pilot required by paragraph (a) of this expired flight instructor certificate. section and the total flight time § 61.195 Flight instructor limitations and (a) * * * requirements in § 61.160: qualifications. (3) For military instructors, provide a (1) Second-in-command pilot time in * * * * * record showing that, within the operations conducted under part 135 of (b) Aircraft Ratings. Except as preceding 6 calendar months from the this chapter when a second pilot is not provided in paragraph (c) of this date of application for reinstatement, required under the type certification of section, a flight instructor may not the person passed a U.S. Armed Forces the aircraft or the regulations under conduct flight training in any aircraft for instructor pilot or pilot examiner

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proficiency check for an additional § 61.415 What are the limits of a flight possession a current flight navigator military instructor rating. instructor certificate with a sport pilot certificate issued to him under this part rating? * * * * * and a second-class (or higher) medical * * * * * (c) The holder of an expired flight certificate issued to him under part 67 (h) You may not provide training on instructor certificate issued prior to of this chapter within the preceding 12 the control and maneuvering of an October 20, 2009, may apply for months. However, when the aircraft is aircraft solely by reference to the reinstatement of that certificate by operated within a foreign country, a instruments in a light sport aircraft with presenting the following: current flight navigator certificate issued a Vh greater than 87 knots CAS unless by the country in which the aircraft is (1) A record showing that, since the you meet the requirements in § 61.412. operated, with evidence of current date the flight instructor certificate was medical qualification for that certificate, issued, the person passed a U.S. Armed * * * * * may be used. Forces instructor pilot or pilot examiner PART 63—CERTIFICATION: FLIGHT (e) Each person who holds a flight proficiency check for an additional CREWMEMBERS OTHER THAN engineer or flight navigator certificate, military rating; and PILOTS or medical certificate, shall present (2) A knowledge test report that either or both for inspection upon the ■ 17. The authority citation for part 63 shows the person passed a knowledge request of the Administrator or an is revised to read as follows: test on the aeronautical knowledge areas authorized representative of the listed under § 61.185(a) appropriate to Authority: 49 U.S.C. 106(f), 106(g), 40113, National Transportation Safety Board, or the flight instructor rating sought and 44701–44703, 44707, 44709–44711, 45102– of any Federal, State, or local law the knowledge test was passed within 45103, 45301–45302. enforcement officer. ■ the preceding 24 calendar months prior 18. Revise § 63.3 to read as follows: ■ 19. Revise § 63.16 to read as follows: to the month of application. § 63.3 Certificates and ratings required. (d) The requirements of paragraph (c) § 63.16 Change of name; replacement of (a) Except as provided in paragraph of this section will expire on [THE FAA lost or destroyed certificate. (c), no person may act as a flight WILL INSERT DATE ONE YEAR AFTER (a) An application for a change of engineer of a civil aircraft of U.S. THE EFFECTIVE DATE OF FINAL name on a certificate issued under this registry unless that person has in his or RULE IN FEDERAL REGISTER]. part must be accompanied by the her personal possession or readily applicant’s current certificate and the ■ 15. Add § 61.412 to read as follows: accessible in the aircraft: marriage license, court order, or other § 61.412 Do I need additional training to (1) A current flight engineer certificate document verifying the change. The provide instruction on control and with appropriate ratings issued to that documents are returned to the applicant maneuvering an airplane solely by person under this part; after inspection. reference to the instruments in a light-sport (2) A document conveying temporary (b) A request for a replacement of a aircraft based on Vh? authority to exercise certificate lost or destroyed airman certificate To provide flight training on control privileges issued by the Airman issued under this part must be made— and maneuvering an aircraft solely by Certification Branch under § 63.16(d) of (1) By letter to the Department of reference to the instruments for the this part; or Transportation, Federal Aviation purpose of issuing a solo cross-country (3) When engaged in a flight operation Administration, Airman Certification endorsement to a sport pilot applicant within the United States for a part 119 Branch, Post Office Box 25082, under § 61.93(e)(12), a sport pilot certificate holder authorized to conduct Oklahoma City, OK 73125 and must be instructor must: operations under parts 121, a temporary accompanied by a check or money order document provided by that certificate (a) Hold an endorsement under for the appropriate fee payable to the holder under an approved certificate § 61.327; FAA; or verification plan. (2) In any other form and manner (b) Receive and log a minimum of 1 (b) A person may act as a flight approved by the Administrator hour of ground training and 3 hours of engineer of an aircraft only if that including a request to Airman Services flight training from an authorized person holds a current second-class (or at http://www.faa.gov, and must be instructor in an airplane with a V h higher) medical certificate issued to him accompanied by acceptable form of greater than 87 knots CAS or in a full under part 67 of this chapter, or other payment for the appropriate fee. flight simulator or flight training device documentation acceptable to the FAA, (c) A request for the replacement of a that replicates an airplane with a V h that is in that person’s physical lost or destroyed medical certificate greater than 87 knots CAS; and possession or readily accessible in the must be made: (c) Receive a one-time endorsement in aircraft. (1) By letter to the Department of the sport pilot instructor’s logbook from (c) When the aircraft is operated Transportation, FAA, Aerospace an instructor authorized under subpart within a foreign country, a current flight Medical Certification Division, P.O. Box H of this part who certifies that the engineer certificate issued by the 26200, Oklahoma City, OK 73125, and person is proficient in providing country in which the aircraft is must be accompanied by a check or training on control and maneuvering operated, with evidence of current money order for the appropriate fee solely by reference to the instruments in medical qualification for that certificate, payable to the FAA; or an airplane with a Vh greater than 87 may be used. Also, in the case of a flight (2) In any other manner and form knots CAS. This flight training must engineer certificate issued under approved by the Administrator and include straight and level flight, turns, § 63.42, evidence of current medical must be accompanied by acceptable descents, climbs, use of radio aids, and qualification accepted for the issue of form of payment for the appropriate fee. ATC directives. that certificate is used in place of a (d) A request for the replacement of a ■ 16. In § 61.415, redesignate medical certificate. lost or destroyed knowledge test report paragraphs (h) and (i) as paragraphs (i) (d) No person may act as a flight must be made: and (j), and add paragraph (h) to read as navigator of a civil aircraft of U.S. (1) By letter to the Department of follows: registry unless he has in his personal Transportation, FAA, Airmen

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Certification Branch, P.O. Box 25082, ■ 21. In § 91.109, revise paragraph (c)(1) (4) Is necessary to accomplish the Oklahoma City, OK 73125, and must be to read as follows: work activity directly associated with accompanied by a check or money order that special purpose; or § 91.109 Flight instruction; Simulated (5) Is necessary to accomplish an for the appropriate fee payable to the instrument flight and certain flight tests. FAA; or operation under paragraph (h) of this (2) In any other manner and form * * * * * section. (c) * * * approved by the Administrator and * * * * * must be accompanied by acceptable (1) The other control seat is occupied by a safety pilot who possesses at least: (h) Deviation authority. (1) An form of payment for the appropriate fee. (i) A private pilot certificate with operator may apply for deviation (e) The letter requesting replacement category and class ratings appropriate to authority from the provisions of of a lost or destroyed airman certificate, the aircraft being flown; or paragraph (a) of this section to conduct medical certificate, or knowledge test (ii) For purposes of providing training operations for the following purposes: report must state: for a solo cross-country endorsement (i) Flight training and the practical (1) The name of the person; under § 61.93 of this chapter, a flight test for issuance of a type rating (2) The permanent mailing address instructor certificate with an provided the pilot being trained and (including ZIP code), or if the appropriate sport pilot rating and an tested holds at least a commercial pilot permanent mailing address includes a endorsement under § 61.412 of this certificate with the appropriate category post office box number, then the chapter. and class ratings for the aircraft type person’s current residential address; and is employed by the operator to (3) The certificate holder’s date and * * * * * ■ perform a special purpose operation; place of birth; and 22. In § 91.313, revise paragraphs (b), (c), and (d)(3) and (d)(4) and add and (4) Any information regarding the— (ii) Flights to designate an examiner (i) Grade, number, and date of paragraphs (d)(5) and (h) to read as follows: or training center evaluator or qualify an issuance of the airman certificate and FAA inspector in the aircraft type and ratings, if appropriate; § 91.313 Restricted category civil aircraft: flights necessary to provide continuing (ii) Class of medical certificate, the Operating limitations. oversight and evaluation of an examiner place and date of the medical exam, * * * * * or inspector. name of the Airman Medical Examiner (b) For the purpose of paragraph (a) of (2) The FAA will issue this deviation (AME), and the circumstances this section, the following operations authority as a letter of deviation concerning the loss of the original are considered necessary to accomplish authority. medical certificate, as appropriate; and the work activity directly associated (3) The FAA may cancel or amend a (iii) Date the knowledge test was with a special purpose operation: letter of deviation authority at any time. taken, if appropriate. (1) Flights conducted for flight (4) An applicant must submit a (f) A person who has lost an airman crewmember training in a special request for deviation authority in a form certificate, medical certificate, or purpose operation for which the aircraft and manner acceptable to the knowledge test report may obtain in a is certificated and flights conducted to Administrator at least 60 days before the form or manner approved by the satisfy proficiency check and recent date of intended operations. A request Administrator, a document conveying flight experience requirements under for deviation authority must contain a temporary authority to exercise part 61 of this chapter provided the complete description of the proposed certificate privileges from the FAA flight crewmember holds the operation and justification that Aeromedical Certification Branch or the appropriate category, class, and type establishes a level of safety equivalent to Airman Certification Branch, as ratings and is employed by the operator that provided under the regulations for appropriate, and the— to perform the appropriate special the deviation requested. (1) Document may be carried as an purpose operation; and ■ 23. Revise § 91.531 to read as follows: airman certificate, medical certificate, or (2) Flights conducted to relocate the knowledge test report, as appropriate, aircraft for maintenance. § 91.531 Second in command for a period not to exceed 60 days (c) No person may operate a restricted requirements. pending the person’s receiving a category civil aircraft carrying persons (a) Except as provided in paragraph duplicate under paragraph (b), (c), or (d) or property for compensation or hire. (b) of this section, no person may of this section, unless the person has For the purposes of this paragraph, a operate the following airplanes without been notified that the certificate has special purpose operation involving the a pilot designated as second in been suspended or revoked. carriage of persons or material necessary command: (2) Request for such a document must to accomplish that operation, such as (1) Any airplane that is type include the date on which a duplicate crop dusting, seeding, spraying, and certificated for more than one required certificate or knowledge test report was banner towing (including the carrying of pilot. previously requested. required persons or material to the (2) Any large airplane unless the type location of that operation), an operation certification requirements for that PART 91—GENERAL OPERATING AND for the purpose of providing flight airplane permit operation by a single FLIGHT RULES crewmember training in a special pilot. ■ 20. The authority citation for part 91 purpose operation, and an operation (3) Any commuter category airplane. continues to read as follows: conducted under the authority provided (b) A person may operate the in paragraph (h) of this section are not following airplanes without a pilot Authority: 49 U.S.C. 106(f), 106(g), 1155, considered to be the carriage of persons designated as second in command: 40101, 40103, 40105, 40113, 40120, 44101, (1) A large airplane certificated under 44111, 44701, 44704, 44709, 44711, 44712, or property for compensation or hire. 44715, 44716, 44717, 44722, 46306, 46315, (d) * * * SFAR 41 if that airplane is certificated 46316, 46504, 46506–46507, 47122, 47508, (3) Performs an essential function in for operation with one pilot. 47528–47531, 47534, articles 12 and 29 of the connection with a special purpose (2) A commuter category airplane, Convention on International Civil Aviation operation for which the aircraft is that has a passenger seating (61 Stat. 1180), (126 Stat. 11). certificated; configuration, excluding pilot seats, of

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nine or less if that airplane is type 45105; Pub. L. 112–95, 126 Stat. 58 (49 U.S.C. (2) The aircraft is a multiengine certificated for one required pilot. 44730). airplane that has an independent set of (3) A large or turbojet-powered ■ 27. Revise § 135.95 to read as follows: controls for a second pilot flightcrew multiengine airplane that holds a member which may not include a special airworthiness certificate, if: § 135.95 Airmen: Limitations on use of throwover control wheel and the (i) the airplane was originally services. following equipment and independent designed with only one pilot station, or (a) No certificate holder may use the instrumentation for a second pilot: (ii) the airplane was originally services of any person as an airman (i) An airspeed indicator; designed with more than one pilot unless the person performing those (ii) Sensitive altimeter adjustable for station, but single pilot operations were services— barometric pressure; permitted by the airplane flight manual (1) Holds an appropriate and current (iii) Gyroscopic bank and pitch or were otherwise permitted by a branch airman certificate; and indicator; of the United States armed forces or the (2) Is qualified, under this chapter, for (iv) Gyroscopic rate-of-turn indicator armed forces of a foreign contracting the operation for which the person is to combined with an integral slip-skid State to the Convention on International be used. indicator; Civil Aviation. (b) A certificate holder may obtain (v) Gyroscopic direction indicator; (c) No person may designate a pilot to approval to provide a temporary (vi) For IFR operations, a vertical serve as second in command, nor may document verifying a flightcrew speed indicator; any pilot serve as second in command, member’s airman certificate and (vii) For IFR operations, course of an airplane required under this medical certificate privileges under an guidance for en route navigation and section to have two pilots unless that approved certificate verification plan set instrument approaches; and pilot meets the qualifications for second forth in the certificate holder’s (viii) A microphone, transmit switch, in command prescribed in § 61.55 of operations specifications. A document and headphone or speaker. this chapter. provided by the certificate holder may (3) The pilot assigned to serve as be carried as an airman certificate or second in command satisfies the PART 121—OPERATING medical certificate on flights within the following requirements: REQUIREMENTS: DOMESTIC, FLAG, United States for up to 72 hours. (i) The second in command ■ AND SUPPLEMENTAL OPERATIONS 28. In § 135.99, add paragraphs (c) and qualifications in § 135.245 of this part; (d) to read as follows: ■ 24. The authority citation for part 121 (ii) The flight time and duty period continues to read as follows: § 135.99 Composition of flight crew. limitations and rest requirements in * * * * * subpart F of this part; Authority: 49 U.S.C. 106(f), 106(g), 40103, (iii) The crewmember testing 40113, 40119, 41706, 42301 preceding note (c) Except as provided in paragraph (d), a certificate holder authorized to requirements for second in command in added by Pub. L. 112–95, sec. 412, 126 Stat. subpart G of this part; and 89, 44101, 44701–44702, 44705, 44709– conduct operations under instrument 44711, 44713, 44716–44717, 44722, 44729, flight rules may receive authorization (iv) The crewmember training 44732; 46105; Pub. L. 111–216, 124 Stat. from the Administrator through its requirements for second in command in 2348 (49 U.S.C. 44701 note); Pub. L. 112–95, operations specifications to establish a subpart H of this part; and 126 Stat. 62 (49 U.S.C. 44732 note). second-in-command professional (4) The assigned pilot in command is a flight instructor (aircraft) qualified ■ 25. In § 121.383, revise paragraph (c) development program. As part of that under §§ 135.338 and 135.340 of this to read as follows: program, a pilot employed by the certificate holder may log time as part. § 121.383 Airman: Limitations on use of second in command in operations under (d) The following certificate holders services. this part that do not require a second are not eligible to receive authorization * * * * * pilot by type certification of the aircraft for a second-in-command professional (c) A certificate holder may obtain or the regulation under which the flight development program under paragraph approval to provide a temporary is being conducted, provided— (c): document verifying a flightcrew (1) The certificate holder: (1) A certificate holder that uses only member’s airman certificate and (i) Maintains records for each one pilot in its operations; and medical certificate privileges under an assigned second in command consistent (2) A certificate holder that has been approved certificate verification plan set with the requirements in § 135.63 of this approved to deviate from the forth in the certificate holder’s part; requirements in §§ 135.21(a), 135.341(a), operations specifications. A document (ii) Provides a copy of the records or 119.69(a) of this chapter. provided by the certificate holder may required by § 135.63(a)(4)(vi) and (x) of ■ 29. In § 135.245, revise paragraph (a) be carried as an airman certificate or this part to the assigned second in and add paragraph (c) to read as follows. command upon request and within a medical certificate on flights within the § 135.245 Second in command United States for up to 72 hours. reasonable time; qualifications. * * * * * (iii) Establishes and maintains a data collection and analysis process that will (a) Except as provided in paragraph (b), no certificate holder may use any PART 135—OPERATING enable the certificate holder and the person, nor may any person serve, as REQUIREMENTS: COMMUTER AND FAA to determine whether the second in command of an aircraft unless ON DEMAND OPERATIONS AND professional development program is that person holds at least a commercial RULES GOVERNING PERSONS ON accomplishing its objectives; and pilot certificate with appropriate BOARD SUCH AIRCRAFT (iv) Conducts flight instructor standardization meetings at least once category and class ratings and an ■ 26. The authority citation for part 135 every 12 calendar months for all flight instrument rating. continues to read as follows: instructors serving as pilot in command * * * * * Authority: 49 U.S.C. 106(f), 106(g), 41706, during operations with a second in (c) No certificate holder may use any 40113, 44701–44702, 44705, 44709, 44711– command serving under the person, nor may any person may serve, 44713, 44715–44717, 44722, 44730, 45101– professional development program. as second in command under IFR unless

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that person meets the following Authority: 49 U.S.C. 106(f), 106(g), 40113, (b) * * * instrument experience requirements: 44701–44703, 44707, 44709, 44711, 45102– (1) * * * (1) Use of an airplane or helicopter for 45103, 45301–45302. (ii) Ten hours of training in a complex maintaining instrument experience. ■ 31. In § 141.5, revise paragraph (d) to airplane, a turbine-powered airplane, or a technically advanced airplane; Within the 6 calendar months preceding read as follows: the month of the flight, that person * * * * * performed and logged at least the § 141.5 Requirements for a pilot school (2) * * * following tasks and iterations in-flight certificate. (ii) 10 hours of training in a multiengine in an airplane or helicopter, as * * * * * complex or turbine-powered airplane; appropriate, in actual weather (d) Has established a pass rate of 80 * * * * * conditions, or under simulated percent or higher on the first attempt for ■ 33. In appendix I to part 141, revise instrument conditions using a view- all: section 4, paragraph (k)(2)(iv) and limiting device: (1) Knowledge tests leading to a (k)(2)(v) to read as follows: (i) Six instrument approaches; certificate or rating, (ii) Holding procedures and tasks; and (2) Practical tests leading to a Appendix I to Part 141—Additional (iii) Intercepting and tracking courses certificate or rating, Aircraft Category and/or Class Rating through the use of navigational (3) End-of-course tests for an Course electronic systems. approved training course specified in * * * * * (2) Use of an FSTD for maintaining appendix K of this part; and 4. Flight training. instrument experience. A person may (4) End-of-course tests for special * * * * * accomplish the requirements in curricula courses approved under (k) * * * paragraph (c)(1) of this section in an § 141.57 of this part. (2) * * * approved FSTD provided: * * * * * (iv) One 2-hour cross country flight during (i) The FSTD represents the category ■ 32. In appendix D to part 141: nighttime conditions in a multiengine of aircraft for the instrument rating ■ a. Revise section 4, paragraphs airplane and, a total straight-line distance of privileges to be maintained; (b)(1)(ii) and (b)(2)(ii); and more than 100 nautical miles from the original point of departure; and (ii) The person performs the tasks and ■ b. Amend paragraphs (b)(3)(i) and (v) Three hours of flight training in a iterations in simulated instrument (b)(4)(i), by removing the words ‘‘flight conditions; and multiengine airplane within 2 calendar simulator’’ and adding in their place the months before the date of the practical test. (iii) An authorized instructor observes words ‘‘full flight simulator’’. The * * * * * the tasks and iterations and signs the revisions read as follows: person’s logbook or training record to Issued in Washington, DC, under the verify the time and content of the Appendix D to Part 141— authority of 49 U.S.C. 106(f), 44701(a)(5), and session. COMMERCIAL PILOT 44703(a), on April 22, 2016. CERTIFICATION COURSE John S. Duncan, PART 141—PILOT SCHOOLS * * * * * Director, Flight Standards Service. ■ 30. The authority citation for part 141 4. Flight training. [FR Doc. 2016–10168 Filed 5–11–16; 8:45 am] continues to read as follows: * * * * * BILLING CODE 4910–13–P

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Reader Aids Federal Register Vol. 81, No. 92 Thursday, May 12, 2016

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MAY

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 431...... 26998 Presidential Documents 3 CFR Proposed Rules: Executive orders and proclamations 741–6000 Proclamations: Ch. II ...... 28736 9427...... 26089 The United States Government Manual 741–6000 Ch. III ...... 28736 9428...... 26091 429...... 27220, 28588 Other Services 9429...... 26093 430...... 27054, 28588 Electronic and on-line services (voice) 741–6020 9430...... 26095 431 ...... 26747, 27054, 27220, Privacy Act Compilation 741–6064 9431...... 26661 28588 9432...... 26663 Public Laws Update Service (numbers, dates, etc.) 741–6043 Ch. X...... 28736 9433...... 26665 9434...... 26979 ELECTRONIC RESEARCH 9435...... 26981 12 CFR World Wide Web 9436...... 26983 341...... 27295 9437...... 26985 1010...... 29111 Full text of the daily Federal Register, CFR and other publications 9438...... 26987 1012...... 29111 is located at: www.fdsys.gov. 9439...... 26989 1282...... 26668 9440...... 26991 Federal Register information and research tools, including Public Proposed Rules: 9441...... 27983 Inspection List, indexes, and Code of Federal Regulations are 217...... 29169 9442...... 28687 located at: www.ofr.gov. 249...... 29169 9443...... 29461 252...... 29169 E-mail 9444...... 29463 Executive Orders: 14 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13727...... 29465 an open e-mail service that provides subscribers with a digital 25...... 26668 form of the Federal Register Table of Contents. The digital form Administrative Orders: 39 ...... 26097, 26099, 26102, Memorandums: of the Federal Register Table of Contents includes HTML and 26103, 26106, 26109, 26113, Memorandum of April PDF links to the full text of each document. 26115, 26121, 26124, 26673, 29, 2016 ...... 26993 To join or leave, go to http://listserv.access.gpo.gov and select 26675, 26677, 26680, 26682, Notices: 27298, 27300, 27303, 27305, Online mailing list archives, FEDREGTOC-L, Join or leave the list Notice of May 3, (or change settings); then follow the instructions. 27986, 27989, 29119, 29123, 2016 ...... 27293 29125, 29128 PENS (Public Law Electronic Notification Service) is an e-mail Notice of May 9, 71 ...... 26685, 27308, 29128 service that notifies subscribers of recently enacted laws. 2016 ...... 29469 95...... 26465 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 5 CFR Proposed Rules: 39 ...... 26176, 26485, 26487, and select Join or leave the list (or change settings); then follow 330...... 26173 26490, 26493, 26495, 26747, the instructions. 731...... 26173 26750, 27055, 27057, 28033, FEDREGTOC-L and PENS are mailing lists only. We cannot 870...... 26997 respond to specific inquiries. 28764, 28768, 28770, 28774, Proposed Rules: 28777, 29193, 29196, 29198, Reference questions. Send questions and comments about the 297...... 27352 29202, 29206, 29209, 29505, Federal Register system to: [email protected] 1820...... 27049 29508, 29511 Ch. XXIII ...... 28736 The Federal Register staff cannot interpret specific documents or 61...... 29720 regulations. 7 CFR 63...... 29720 71 ...... 26178, 26497, 26499, CFR Checklist. Effective January 1, 2009, the CFR Checklist no 52...... 27985 26501, 26503, 26505, 27355, longer appears in the Federal Register. This information can be 1466...... 29471 27356, 27357, 27359 found online at http://bookstore.gpo.gov/. 1924...... 26667 91...... 29720 1955...... 26667 121...... 29720 1980...... 26667 FEDERAL REGISTER PAGES AND DATE, MAY 135...... 29720 3555...... 26461 141...... 29720 3570...... 27295 26089–26460...... 2 382...... 26178 26461–26666...... 3 Proposed Rules: 272...... 28738 26667–26996...... 4 15 CFR 26997–27294...... 5 274...... 28738 730...... 29483 27295–27982...... 6 280...... 28738 740...... 29483 27983–28686...... 9 319...... 28758 742...... 29483 28687–29110...... 10 8 CFR 744...... 29483 29111–29470...... 11 Proposed Rules: 746...... 29483 29471–29760...... 12 103...... 26904 754...... 29483 204...... 26904 762...... 29483 772...... 29483 10 CFR 774...... 29483 430...... 26998 902...... 27006

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17 CFR 31...... 27360 37 CFR 47 CFR 23...... 27309 301 ...... 26763, 27360, 28784 380...... 26316 11...... 27342 230...... 28689 27 CFR Proposed Rules: 240...... 28689 1...... 27381 Proposed Rules: 48 CFR 20 CFR 9...... 26507 38 CFR 204...... 28724 356...... 26127 478...... 26764 21...... 26130 209...... 28724 Proposed Rules: 479...... 26764 212...... 28724, 28729 404...... 29212 39 CFR 215...... 28729 416...... 29212 28 CFR 601...... 29146 216...... 28729 421...... 27059 Proposed Rules: 217...... 28730 40 CFR 441...... 29212 16...... 27288 225...... 28729, 28732 35...... 28658 52 ...... 26133, 26697, 27017, 227...... 28724 21 CFR 90...... 29215 27330, 28718, 29498 237...... 28724 112...... 26466 81...... 26697, 28718 239...... 28732 29 CFR 514...... 29129 180 ...... 26135, 26141, 26147, 241...... 28733 610...... 26687 1902...... 29624 26471, 26722, 27019, 27025, 252...... 28724, 28732 1100...... 28974 27332, 27337 1904...... 29624 Proposed Rules: 1140...... 28974 258...... 28720 14...... 29514 1143...... 28974 31 CFR Proposed Rules: 22...... 29244 1150...... 28707 51...... 26942, 29243 1010...... 29398 52...... 29244, 29514 1308 ...... 29142, 29487, 29492 52 ...... 26180, 26185, 26188, 1020...... 29398 227...... 28812 Proposed Rules: 26196, 26515, 26942, 27382, 1023...... 29398 252...... 28812, 28816 1...... 28035 1024...... 29398 28797, 28807, 29243 11...... 27067, 28035 1026...... 29398 42 CFR 16...... 28035 49 CFR 403...... 26872 101...... 27067 32 CFR 674...... 28031 111...... 28035 416...... 26872 199...... 27328 Proposed Rules: 610...... 26753 418...... 26872 Proposed Rules: 190...... 29247 1100 ...... 28778, 28780, 28781 431...... 27498 71...... 28040 433...... 27498 191...... 29247 1140 ...... 28778, 28780, 28781 553...... 29230 1143 ...... 28778, 28780, 28781 438...... 27498 192...... 29247 195...... 29247 1150...... 28783 33 CFR 440...... 27498 457...... 27498 199...... 29247 24 CFR 97...... 27992 460...... 26872 571...... 27904 Proposed Rules: 100...... 26695 482...... 26872 1250...... 27069 982...... 26759 110...... 27015 483...... 26872 117 ...... 26129, 28018, 28716, 1000...... 28037 485...... 26872 50 CFR 1003...... 28037 29496 495...... 27498 1005...... 28037 160...... 27992 Proposed Rules: 17...... 29165, 29336 1007...... 28037 165 ...... 26468, 26470, 28019, 414...... 28162 36...... 27030 10006...... 28037 28022, 29145, 29496, 29498 495...... 28162 622...... 29166 Proposed Rules: 635...... 29501 25 CFR 110...... 28788 45 CFR 648 ...... 26412, 26452, 26727 20...... 26692 117...... 27373, 28791, 155...... 29146 660...... 26157, 27006 28793,28795 156...... 29146 679 ...... 26738, 26745, 28032 26 CFR 165...... 26767 1330...... 29156 Proposed Rules: 1...... 27011 13...... 27934 301...... 26693, 27315 34 CFR 46 CFR 17...... 26769 602...... 27315 200...... 28944 97...... 27992 22...... 27934 Proposed Rules: Proposed Rules: Proposed Rules: 223...... 29515 1...... 28784 Ch. III ...... 27375 502...... 26517 224...... 29515

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in today’s List of Public enacted public laws. To Laws. subscribe, go to http:// LIST OF PUBLIC LAWS Public Laws Electronic listserv.gsa.gov/archives/ Last List May 11, 2016 Notification Service publaws-l.html (PENS) Note: No public bills which Note: This service is strictly have become law were for E-mail notification of new received by the Office of the PENS is a free electronic mail laws. The text of laws is not Federal Register for inclusion notification service of newly available through this service. PENS cannot respond to specific inquiries sent to this address.

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