        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 20
        RIN 1018-AH79
        Migratory Bird Hunting; Proposal for Migratory Game Bird Hunting Regulations; Withdrawal

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; withdrawal.

          SUMMARY:

          The U.S. Fish and Wildlife Service (hereinafter Service or we) proposed in an earlier Federal Register notice to change certain parts of the regulatory alternatives for the 2001-02 duck hunting seasons for States in the Lower Region (Arkansas, Louisiana, Kentucky, Alabama, Mississippi and Tennessee) of the Mississippi Flyway. Based on a review of public comment and other considerations, the Service is withdrawing the proposal of October 11, 2001, and discusses possible ways to address the issue of framework opening and closing dates in the future.

          ADDRESSES:
          You may inspect comments during normal business hours in room 634, Arlington Square Building, 4401 N. Fairfax Drive, Arlington, Virginia.

          FOR FURTHER INFORMATION CONTACT:
          Jonathan Andrew, Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, (703) 358-1714.

        SUPPLEMENTARY INFORMATION:
        On October 11, 2001, we published in the Federal Register (66 FR 51919) a proposed rule that would change the regulatory alternatives for the 2001-02 duck hunting seasons for States in the Lower Region (Arkansas, Louisiana, Kentucky, Alabama, Mississippi and Tennessee) of the Mississippi Flyway to allow for a season length of 60 days beginning no earlier than September 29 and ending no later than January 31. The comment period closed on October 26, 2001.
        Review of Public Comments
        Written comments from the National Flyway Council, the Atlantic Flyway Council and five Atlantic Flyway States (GA, FL, NJ, SC, VT), the  Mississippi Flyway Council's Upper Region Regulation Committee and eight Mississippi Flyway States (IL, IN, IA, KY, MI, MN, MO, WI), the Central Flyway Council and two Central Flyway States (SD, TX), and the Pacific Flyway Council and three Pacific Flyway States (AZ, CA, WY) all strongly opposed the proposed rule, questioning the biological foundation for the proposal and stating that it circumvents the Flyway Council process, among other concerns. A written comment from Senator Paul Wellstone and Senator Mark Dayton strongly opposed the proposal. Written comments from the International Association of Fish and Wildlife Agencies, Louisiana Wildlife Federation, Mississippi Wildlife Federation, Boone & Crockett Club, The Wildlife Society, Dallas Safari Club, Wildlife Forever, Texas Wildlife Association, Max McGraw Wildlife Foundation, Indiana Grand Kankakee Marsh Restoration project, and the Izaak Walton League of America all opposed the proposal, calling it arbitrary and capricious and questioning whether it violated Administrative Procedures Act. Written comments from 12 private individuals opposed the proposal. Electronic comments opposing the proposal were received from 231 individuals.
        Comments favoring the proposal included written comments from the State of Alabama and 5 individuals, and electronic comments from 27 individuals.
        Service Response

        The U.S. Fish and Wildlife Service regulates the earliest and latest dates that States can select for duck-hunting seasons within alternative regulatory frameworks. The effects of extending these dates have been the subject of recent debate within the waterfowl management community, and this issue remains unresolved. On October 11, 2001, we proposed, upon reconsideration of the previously-established  “liberal'' alternative for the Lower Region (Alabama, Arkansas, Louisiana, Kentucky, Mississippi, and Tennessee) of the Mississippi Flyway, a framework opening date of no earlier than September 29 and a closing date of no later than January 31, with no reduction (offset) in season length. As indicated above, the vast majority of the comments received during the public comment period were strongly opposed to the proposal, asserting that the proposal: (1) Disregards the integrity of the cooperative process to develop hunting regulations that has been successfully in place for many years; (2) fails to consider biological, technical, and social impacts; (3) established a dangerous precedent in the regulations process; (4) neglects potential impacts on other species besides the mallard; (5) exacerbates an already unequal distribution of harvest and hunter opportunity; (6) disregards implications to other states; (7) erodes the long-established Flyway Council system; and (8) ignores efforts of the Flyway Councils, National Flyway Council, and the U.S. Fish and Wildlife Service to reach consensus on resolving this issue. As a result of these comments and concerns, the Service is withdrawing the proposal of October 11, 2001, and will maintain the regulatory alternatives for the 2001-02 duck hunting seasons that were finalized on September 27, 2001 (Federal Register, 66 FR 32297). The Service intends to use elements of the National Flyway Council's recommendation in its proposed rules for the 2002-2003 hunting season.
        As part of continuing efforts to develop a resolution to the framework-date issue, the Service plans to meet in early December with a newly-formed working group established by the International Association of Fish and Wildlife Agencies, representing a cross-section of all Flyway Councils and States, in order to develop a proposal for framework opening and closing dates for the 2002-2003 duck hunting season. The encompassing objective of this effort will be to place the resolution of this issue back into the cooperative process between the States and the Federal Government for developing annual migratory game bird hunting regulations.
        At this meeting, the Service will propose that the group consider revising the current regulatory packages and extending the opening and closing dates for the 2002-03 duck hunting season. As the basis for this proposal, key elements of the National Flyway Council recommendation for the 2001-2002 season will be used; that is, a framework opening date of the Saturday nearest September 24 and a closing date of the last Sunday in January, with no offsets in days or bag limits, in the “moderate” and “liberal” regulatory packages. In order to resolve a number of critical technical and administrative issues, the Service will propose that any changes to existing framework be achieved within the context of adaptive harvest management. This approach, building on the longstanding consensus of states, Flyway Councils, and the Service to pursue an adaptive approach to managing waterfowl harvests, would be designed to help identify the effects of changes in framework dates, while ensuring that we can account for uncertainty surrounding harvest and population impacts in each regulatory decision. In the coming months, the Service and State technical representatives will consider various alternative hypotheses that specify possible expected changes in mallard harvests associated with widespread application of extended framework dates and explore their management implications. Any proposed changes in framework dates would be developed with the tacit understanding that the Flyway Councils are prepared to accept the changes in harvest distribution that might occur. Also, there is the potential for adverse biological impacts to species other than mallards, such as wood ducks, and especially those species currently below objective levels (e.g. pintails, scaup), therefore, any changes to framework dates will require  close inspection of relevant harvest and population data.
        Successful implementation of changes to framework dates for the 2002-03 hunting season will require additional funding to support the maintenance of a reliable monitoring program for North American waterfowl, including the initiation of a band reporting rate study in 2002 that will allow the estimation of realized harvest rates for mallards and other important waterfowl species, continued efforts to improve the national harvest survey, and enhancements to aircraft survey capabilities.

        Following the outcome of the December meeting with the Flyway Councils and states, the Service will begin to prepare its first Federal Register document for the 2002-03 regulations-development cycle (Preliminary Rule, to be published in March 2002, prior to the Flyway Council meetings), in which it will announce its intent to propose changes to framework dates. This document will also include additional information regarding progress in addressing monitoring and evaluation concerns expressed earlier and provide specific alternatives to revise the administrative and procedural process for regulations development.

          Dated: November 16, 2001.
          Joseph E. Doddridge,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 01-29235 Filed 11-21-01; 8:45 am]
      BILLING CODE 4310-55-M


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 160630573-6573-01]
        RIN 0648-BG19
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Red Snapper Management Measures

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to implement management measures described in Amendment 45 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council) (Amendment 45). This proposed rule would extend the 3-year sunset provision for the Gulf of Mexico (Gulf) red snapper recreational sector separation measures for an additional 5 years. Additionally, this rule would correct an error in the Gulf red snapper recreational accountability measures (AMs). The purpose of this proposed rule is to extend the sector separation measures to allow the Council more time to consider and possibly develop alternative management strategies within the Gulf red snapper recreational sector.

          DATES:
          Written comments must be received on or before October 24, 2016.

          ADDRESSES:
          You may submit comments on the amendment identified by “NOAA-NMFS-2016-0089” by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0089, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Electronic copies of Amendment 45, which includes an environmental assessment, a fishery impact statement, a Regulatory Flexibility Act (RFA) analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:

          Peter Hood, Southeast Regional Office, NMFS, telephone: 727-824-5305; email: Peter.Hood@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        NMFS and the Council manage the Gulf reef fish fishery, which includes red snapper, under the FMP. The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
        Background
        The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield (OY) from federally managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. In meeting these requirements, Amendment 45 would extend a sunset provision implemented through the final rule for Amendment 40 to the FMP (80 FR 22422, April 22, 2015) for an additional 5 years.
        Amendment 40 established distinct private angling and Federal for-hire (charter vessel and headboat) components of the Gulf reef fish recreational sector fishing for red snapper, and allocated red snapper resources between these recreational components. The purpose for establishing these separate recreational components was to provide a basis for increasing the stability for the for-hire component and the flexibility in future management of the recreational sector, and to reduce the likelihood of recreational red snapper quota overruns, which could jeopardize the rebuilding of the red snapper stock (the Gulf red snapper stock is currently overfished and is under a rebuilding plan). As a result of the stock status, the actions in Amendment 40 were also intended to prevent overfishing while achieving the OY and rebuilding the red snapper stock, particularly with respect to recreational fishing opportunities.
        Amendment 40 defined the Federal for-hire component as including operators of vessels with Federal charter vessel/headboat permits for Gulf reef fish and their angler clients. The private angling component was defined as including anglers fishing from private vessels and state-permitted for-hire vessels. Amendment 40 allocated the red snapper recreational quota between the Federal for-hire and private angling components at 42.3 and 57.7 percent, respectively. The allocation was derived by using historical and recent time series of recreational landings. Amendment 40 also established accountability measures for the Gulf red snapper recreational components. The component allocation was applied to the red snapper recreational annual catch target (ACT), which is set 20 percent below the recreational annual catch limit. Both components' Federal red snapper seasons begin on June 1 and close when the respective component's ACT is projected to be met.
        Amendment 40 also applied a 3-year sunset provision for the regulations implemented through its final rule. The sunset provision maintained the measures for sector separation through the end of the 2017 fishing year, on December 31, 2017.

        The 3-year sunset provision in Amendment 40 was included to provide an incentive for the Council to continue to evaluate alternative management measures or programs for the recreational sector. Unless modified, after the 2017 fishing year, on January 1, 2018, the management measures implemented through Amendment 40 will expire and the recreational sector will be managed as a single entity. The Council is currently working to develop and approve other amendments to address the management of the charter and headboat fishing within the Federal for-hire component (Amendments 41 and 42 to the FMP, respectively). The development of these amendments is taking longer than the Council anticipated, and if approved by NMFS, would likely not be effective until after the sector separation provisions expire at the end of the 2017 fishing year (December 31, 2017). Therefore, through Amendment 45, the Council determined there was a need to extend the sunset provision to allow for additional time to consider and possibly implement alternative management strategies within the Gulf red snapper recreational sector.
        Management Measure Contained in This Proposed Rule
        Amendment 45 would extend the 3-year sunset provision for separation of the Federal for-hire and private angling recreational components for Gulf red snapper and associated management measures for an additional 5 years. This proposed rule would extend Gulf recreational red snapper sector separation through the end of the 2022 fishing year, on December 31, 2022, rather than the current sunset date of December 31, 2017. Beginning on January 1, 2023, the red snapper recreational sector would be managed as a single entity without the Federal for-hire and private angling components. The Council would need to take further action for these recreational components and management measures to extend beyond the 5-year extension proposed in Amendment 45.
        Additionally, as a result of extending the sunset provision for sector separation, this proposed rule would extend the respective red snapper recreational component quotas and ACTs through the 2022 fishing year, instead of through the 2017 fishing year as implemented through Amendment 40.
        As described above, extending the duration of the Gulf red snapper recreational sunset provision would give the Council additional flexibility in developing alternative management approaches for red snapper.
        Additional Proposed Changes to Codified Text
        On May 1, 2015, NMFS published the final rule for a framework action to revise the Gulf red snapper commercial and recreational quotas and ACTs, including the recreational component ACTs, and to announce the closure dates for the recreational sector components for the 2015 fishing year (80 FR 24832). However, during the implementation of the framework action, the term and regulatory reference for total recreational quota was inadvertently used instead of total recreational ACT when referring to the applicability of the recreational component ACTs after sector separation ends in § 622.41(q)(2)(iii)(B) and (C). This rule corrects this error by revising the text and regulatory references within the component ACTs to reference the total recreational sector ACT instead of the total recreational quota in § 622.41(q)(2)(iii)(B) and (C).
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the the FMP, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if implemented, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:
        The purpose of this proposed rule is to extend the sunset provision that would end the distinct private angling and Federal for-hire components (sector separation) of the red snapper recreational sector. This would allow more time for the Council to develop and potentially implement Federal for-hire and private angling component management measures to better prevent overfishing while achieving the OY on a continuing basis, particularly with respect to recreational opportunities, and while rebuilding the red snapper stock. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.
        This proposed rule, if implemented, would directly affect all vessels with a Gulf Federal charter vessel/headboat reef fish permit (hereafter referred to as a for-hire permit). Headboats, which charge a fee per passenger, and charter vessels, which charge a fee on a whole vessel basis, are types of vessel operations that participate in the for-hire fishing component of the recreational sector. In addition to the difference in how fees are paid, headboats are generally larger and carry more passengers than charter vessels. A for-hire permit is required for for-hire vessels to harvest reef fish species, including red snapper, in the Gulf Exclusive Economic Zone (EEZ). On February 17, 2016, there were 1,312 valid (non-expired) or renewable for-hire permits. A renewable permit is an expired permit that may not be actively fished, but is renewable for up to 1 year after expiration. Although the for-hire permit application collects information on the primary method of operation, the permit itself does not identify the permitted vessel as either a headboat or a charter vessel and vessels may operate in both capacities. However, only federally permitted headboats are required to submit harvest and effort information to the NMFS Southeast Region Headboat Survey (SRHS). Participation in the SRHS is based on determination by the Southeast Fishery Science Center that the vessel primarily operates as a headboat. Sixty-nine Gulf vessels were registered in the SHRS as of February 2016. As a result, the estimated 1,312 vessels expected to be directly affected by this proposed rule are expected to consist of 1,243 charter vessels and 69 headboats. The average charter vessel is estimated to receive approximately $83,000 (2015 dollars) in annual revenue. The average headboat is estimated to receive approximately $252,000 (2015 dollars) in annual revenue.
        NMFS has not identified any other small entities that would be expected to be directly affected by this proposed rule. Although this proposed rule would also directly affect recreational anglers, recreational anglers are not small entities under the RFA.
        The Small Business Administration has established size criteria for all major industry sectors in the U.S. A business involved in the for-hire fishing industry is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $7.5 million (NAICS code 487210, for-hire businesses) for all its affiliated operations worldwide. All for-hire fishing businesses expected to be directly affected by this proposed rule are believed to be small business entities.

        This proposed rule consists of one action that would extend the sunset date of the sector separation provisions for the recreational harvest of red snapper in the Gulf, and correct the Gulf red snapper recreational sector AMs. Sector separation is scheduled to sunset at the end of 2017 fishing year. This proposed rule would extend the sunset date for an additional 5 years, through the 2022 fishing year. As a part of sector separation there are sector allocations, which allow each sector to have distinct seasons unaffected (in the short term) by the harvest activity by the other sector, and accountability measures intended to restrain each sector to its allocation and help ensure that the potential benefits expected to accrue to sector separation are realized. Sector separation also established a platform which enables management changes that may result in increased economic benefits to the affected small entities. These effects would be a direct effect of these management changes, as they are implemented, and not of this proposed rule.
        The current sector separation sunset date provision limits the cumulative amount and duration of these positive economic effects. The 3-year duration of sector separation as is currently in place is insufficient time to conduct substantive evaluation of each sector's needs, develop and implement appropriate sector-specific management measures, and allow the measures to remain in effect long enough for the benefits to be realized. Additionally, the imminent lapse of the 3-year sunset provision is believed to be a disincentive for business owners to make substantive financial or other operational decisions that may improve the economic viability of their business. Extending the sunset date for an additional 5 years would be expected to result in increased economic benefits to for-hire small business entities because it would lengthen their planning horizon and opportunity to make beneficial operational changes and would increase the management flexibility to implement sector-specific measures designed to increase the economic benefits accruing to both the for-hire and private angling components.
        It is not feasible to generate quantitative estimates of the expected economic benefits expected to accrue to these small for-hire business entities as a result of the proposed change in the sunset date because of an inability to forecast the behavioral changes by the for-hire businesses or the anglers who hire their services, and the absence of detail on, or schedule of implementation of, the sector-specific management measures that may be implemented. Nevertheless, the net effect of the proposed change in the sunset date of sector separation is expected to be an increase in profit per affected small entity.
        The proposed change to the Gulf red snapper recreational sector AMs would be administrative, not substantive, in nature, correcting text and regulatory reference errors made in prior rulemaking. These errors have not affected how the recreational harvest of red snapper has been managed or the behavior of any small entities engaged in the recreational harvest of red snapper. The proposed corrections are consistent with the intent of the prior rulemaking (80 FR 24832, May 1, 2015) and would not be expected to have any direct effect on any small entities.
        Based on the discussion above, NMFS determines that this proposed rule, if implemented, would result in an increase in revenue and associated profits and would not have a significant adverse economic effect on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

          List of Subjects in 50 CFR Part 622
          Fisheries, Fishing, Gulf, Quotas, Recreational, Red snapper.

          Dated: August 31, 2016.
          Samuel D. Rauch III,
          Deputy Assitant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

          PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC

        1. The authority citation for part 622 continues to read as follows:

          Authority:
          16 U.S.C. 1801 et seq.

        2. In § 622.39, revise paragraphs (a)(2)(i)(B) and (C) to read as follows:

          § 622.39
          Quotas.

          (a)  * * *
          (2)  * * *
          (i)  * * *
          (B) Federal charter vessel/headboat component quota. The Federal charter vessel/headboat component quota applies to vessels that have been issued a valid Federal charter vessel/headboat permit for Gulf reef fish any time during the fishing year. This component quota is effective for only the 2015 through 2022 fishing years. For the 2023 and subsequent fishing years, the applicable total recreational quota, specified in paragraph (a)(2)(i)(A) of this section, will apply to the recreational sector.
          (1) For fishing year 2015—2.964 million lb (1.344 million kg), round weight.
          (2) For fishing year 2016—3.042 million lb (1.380 million kg), round weight.
          (3) For fishing years 2017 through 2022—2.993 million lb (1.358 million kg), round weight.
          (C) Private angling component quota. The private angling component quota applies to vessels that fish under the bag limit and have not been issued a Federal charter vessel/headboat permit for Gulf reef fish any time during the fishing year. This component quota is effective for only the 2015 through 2022 fishing years. For the 2023 and subsequent fishing years, the applicable total recreational quota, specified in paragraph (a)(2)(i)(A) of this section, will apply to the recreational sector.
          (1) For fishing year 2015—4.043 million lb (1.834 million kg), round weight.
          (2) For fishing year 2016—4.150 million lb (1.882 million kg), round weight.
          (3) For fishing years 2017 through 2022—4.083 million lb (1.852 million kg), round weight.

        3. In § 622.41, revise paragraphs (q)(2)(iii)(B) and (C) to read as follows:

          § 622.41
          Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).

          (q)  * * *
          (2)  * * *
          (iii)  * * *
          (B) Federal charter vessel/headboat component ACT. The Federal charter vessel/headboat component ACT applies to vessels that have been issued a valid Federal charter vessel/headboat permit for Gulf reef fish any time during the fishing year. This component ACT is effective for only the 2015 through 2022 fishing years. For the 2023 and subsequent fishing years, the applicable total recreational ACT, specified in paragraph (q)(2)(iii)(A) of this section, will apply to the recreational sector.
          (1) For fishing year 2015—2.371 million lb (1.075 million kg), round weight.
          (2) For fishing year 2016—2.434 million lb (1.104 million kg), round weight.
          (3) For fishing years 2017 through 2022—2.395 million lb (1.086 million kg), round weight.
          (C) Private angling component ACT. The private angling component ACT applies to vessels that fish under the bag limit and have not been issued a Federal charter vessel/headboat permit for Gulf reef fish any time during the fishing year. This component ACT is effective for only the 2015 through 2022 fishing years. For the 2023 and subsequent fishing years, the applicable total recreational ACT, specified in paragraph (q)(2)(iii)(A) of this section, will apply to the recreational sector.
          (1) For fishing year 2015—3.234 million lb (1.467 million kg), round weight.
          (2) For fishing year 2016—3.320 million lb (1.506 million kg), round weight.
          (3) For fishing years 2017 through 2022—3.266 million lb (1.481 million kg), round weight.

      [FR Doc. 2016-21620 Filed 9-7-16; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF TRANSPORTATION
        Surface Transportation Board
        49 CFR Part 1122
        [Docket No. EP 731]
        Rules Relating to Board-Initiated Investigations

          AGENCY:
          Surface Transportation Board.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          Through this Notice of Proposed Rulemaking, the Surface Transportation Board (Board or STB) is proposing rules for investigations conducted on the Board's own initiative pursuant to the Surface Transportation Board Reauthorization Act of 2015.

          DATES:
          Comments are due by June 15, 2016. Replies are due by July 15, 2016.

          ADDRESSES:

          Comments and replies may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at http://www.stb.dot.gov. Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: EP 731, 395 E Street SW., Washington, DC 20423-0001. Copies of written comments and replies will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.

          FOR FURTHER INFORMATION CONTACT:
          Scott M. Zimmerman at (202) 245-0386. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]

        SUPPLEMENTARY INFORMATION:
        Section 12 of the STB Reauthorization Act authorizes the Board to investigate, on its own initiative, issues that are “of national or regional significance” and are subject to the Board's jurisdiction under 49 U.S.C. Subtitle IV, Part A. Under the statute, the Board must issue rules implementing this investigative authority not later than one year after the date of enactment of the STB Reauthorization Act (by December 18, 2016).

        The Board accordingly proposes regulations, to be set forth at 49 CFR part 1122, establishing procedures for investigations conducted on the Board's own initiative pursuant to Section 12 of the STB Reauthorization Act. The proposed regulations would not apply to other types of investigations that the Board may conduct.
        Introduction
        The STB Reauthorization Act provides a basic framework for conducting investigations on the Board's own initiative, as follows:
        Within 30 days after initiating an investigation, the Board must provide notice to parties under investigation stating the basis for such investigation. The Board may only investigate issues that are of national or regional significance. Parties under investigation have a right to file a written statement describing all or any facts and circumstances concerning a matter under investigation, and the Board has an obligation to separate the investigative and decisionmaking functions of Board staff to the extent practicable.
        Investigations must be dismissed if they are not concluded with “administrative finality within one year after commencement.” 1
           In any such investigation, Board staff must make available to the parties under investigation and the Board Members any recommendations made as a result of the investigation and a summary of the findings that support such recommendations. Within 90 days of receiving the recommendations and summary of findings, the Board must either dismiss the investigation if no further action is warranted, or initiate a proceeding to determine whether a provision of 49 U.S.C. Subtitle IV, Part A has been violated. Any remedy that the Board may order as a result of such a proceeding may only be applied prospectively.

            1 S. Rep. No. 114-52, 12 (2015) (explaining that the one-year deadline for investigations conducted on the Board's own initiative does not include any Board proceeding conducted subsequent to the investigation).

        The STB Reauthorization Act further requires that the rules issued under Section 12 must comply with the requirements of 49 U.S.C. 11701(d) (as amended by the STB Reauthorization Act), satisfy due process requirements, and take into account ex parte constraints.
        Summary of Proposed Rules

        To implement this statutory framework for investigations, the Board is proposing a three-stage process, consisting of (1) Preliminary Fact-Finding, (2) Board-Initiated Investigations, and (3) Formal Board Proceedings. Each of these stages is described below and defined in § 1122.1 of the proposed regulations provided in this Notice of Proposed Rulemaking. Section 1122.2 defines the scope and applicability of the proposed regulations, stating that they would apply only to Board matters subject to Section 12 of the STB Reauthorization Act.

        1. Preliminary Fact-Finding
        During the Preliminary Fact-Finding stage, Board staff would conduct a nonpublic inquiry regarding an issue to determine if there is a potential violation of 49 U.S.C. Subtitle IV, Part A, of national or regional significance that warrants a Board-Initiated Investigation. Information identifying a potential violation of national or regional significance could come from a variety of sources, including, but not limited to, third party tips, referrals from other agencies or Congress, reports submitted to the Board, or news articles.

        The goal of Preliminary Fact-Finding would be for Board staff to decide whether to close its fact-gathering or request authorization to open a Board-Initiated Investigation and determine if a violation has in fact occurred. See § 1122.3 (describing the Preliminary Fact-Finding process). To assist in making this determination, Board staff may request that parties voluntarily provide testimony, information, or documents. (As an investigation will not have been formally initiated, Board staff would not have authority to issue subpoenas to compel testimony or the production of information or documents during Preliminary Fact-Finding. Cf. §§ 1122.3 & 1122.9.) Under the proposed rules, Board staff would terminate Preliminary Fact-Finding if it becomes evident from information available to Board staff that (1) the potential violation was not of national or regional significance or was not subject to the Board's jurisdiction under 49 U.S.C. Subtitle IV, Part A, or (2) no violation likely occurred. However, if Board staff were to decide that (1) a violation of Part A subject to the Board's jurisdiction may have occurred and (2) that the potential violation may be of national or regional significance warranting the opening of a staff investigation, staff would seek authorization from the Board to pursue a Board-Initiated Investigation.
        As a matter of policy, Preliminary Fact-Finding generally would be nonpublic and confidential, subject to the provisions found in § 1122.6,2
           in order to protect the integrity of any subsequent investigation and to protect parties involved from possibly unwarranted reputational or other harm.

            2 Section 1122.6 allows the public disclosure of information and documents obtained during Preliminary Fact-Finding or a Board-Initiated Investigation, and the existence of Preliminary Fact-Finding or a Board-Initiated Investigation, under certain circumstances.

        2. Board-Initiated Investigation

        To commence a Board-Initiated Investigation (which statutorily must conclude with administrative finality within one year), the Board would issue an Order of Investigation and provide a copy of the order to the parties under investigation within 30 days of issuance. See §§ 1122.4 & 1122.5. The Board may commence a Board-Initiated Investigation with or without Board staff having conducted Preliminary Fact-Finding. The Order of Investigation would state the basis for the investigation and identify the Investigating Officer(s) who would be conducting the investigation for the Board. See § 1122.4.
        As with Preliminary Fact-Finding, Board-Initiated Investigations generally would be nonpublic and confidential, except as provided by § 1122.6, in order to protect the integrity of the process and to protect parties under investigation from possibly unwarranted reputational damage or other harm. Parties who are not the subject of the investigation would not be able to intervene or participate as a matter of right in Board-Initiated Investigations. Section 1122.8.

        The goal of the Board-Initiated Investigation would be for the Investigating Officer(s) to decide whether to recommend to the Board that it dismiss the investigation or open a proceeding to determine if a violation of 49 U.S.C. Subtitle IV, Part A occurred. To assist in making this determination, the Investigating Officer(s) would be able to interview or depose witnesses, inspect property and facilities, and request the production of any information, documents, books, papers, correspondence, memoranda, agreements or other records, in any form or media, potentially relevant or material to the basis for the Board-Initiated Investigation, with the power of subpoena to compel the production of documents or testimony of witnesses, if necessary. See § 1122.9. Any persons or entities producing such information or documents to the Board would be required to follow the procedures set forth at § 1122.7 in order to preserve any relevant confidentiality claims and to submit the certifications required in § 1122.11(a), regarding the diligence of any search, and (b) regarding responsive documents withheld based on claims of privilege. Persons or entities providing testimony or producing information or documents to the Board would be subject to the provisions of § 1122.11(c) concerning false statements.

        Under the proposed regulations, the Investigating Officer(s) would be required to conclude the Board-Initiated Investigation no later than 275 days after issuance of the Order of Investigation and, at that time, submit to the Board and the parties under investigation any recommendations made as a result of the Board-Initiated Investigation and a summary of the findings that support such recommendations. See § 1122.5(b). The proposed 275-day timeline would provide Board Members the maximum statutory time allotted (i.e., 90 days) to review the Investigating Officer(s)' recommendations and summary of findings and decide whether to dismiss the Board-Initiated Investigation or open a Formal Board Proceeding, while still concluding the Board-Initiated Investigation with administrative finality within one year of its commencement. See § 1122.5(b) & (c).

        The Board recognizes that potential violations that are “of national or regional significance” could have serious and far-reaching consequences. The Board, therefore, will endeavor to resolve Board-Initiated Investigations as soon as possible. To be clear, 275 days would be the maximum amount of time for the Investigating Officer(s) to submit the recommendations and summary of findings to the Board Members and parties under investigation.

        Investigating Officer(s), in their discretion and time permitting, would have the option of presenting (orally or in writing) their recommendations and/or summary of findings to parties under investigation prior to submitting this information to the Board Members. In such cases, the Investigating Officer(s) would be required to permit the parties under investigation to submit a written response to their recommendations and/or summary of findings. The Investigating Officer(s) would then submit their recommendations and summary of findings, as well as any response from the parties under investigation, to the Board members and parties under investigation.

        If the Investigating Officer(s) were to decide not to use the optional provisions described above, parties subject to investigation would still be allowed to submit written statements to the Board at any time pursuant to 49 U.S.C. 11701(d)(3). See § 1122.12.
        3. Formal Board Proceeding

        Upon receipt of the recommendations and summary of findings from the Investigating Officers, the Board would decide whether to open a public Formal Board Proceeding to determine whether a provision of 49 U.S.C. Subtitle IV, Part A had been violated. If so, the Board would issue a public Order to Show Cause as described in § 1122.5(c) and (d). The Order to Show Cause would state the basis for the proceeding and set forth a procedural schedule. See § 1122.5(d).
        4. Other Related Issues

          Separation of Investigation and Decisionmaking Functions. In all matters governed by the regulations proposed at 49 CFR part 1122, the Board would separate the investigative and decisionmaking functions of Board staff, to the extent practicable. See 49 U.S.C. 11701(d)(5); § 1122.4.

          Ex Parte Communications. Section 12(c)(3) of the STB Reauthorization Act requires the Board, in issuing these rules, to take into account ex parte constraints. Consistent with analogous ex parte constraints in other procedures at the Board, the Board Members, as a matter of policy, would not engage in off-the-record verbal communications concerning the matters under investigation with parties subject to Board-Initiated Investigations. However, as provided in § 1122.12, parties under investigation would have the right to submit written statements to the Board at any time.

          Settlement. During Board-Initiated Investigations, the Investigating Officer(s) would be able to engage in settlement negotiations with parties under investigation. If, at any time during the investigation, the Investigating Officer(s) and parties under investigation reach a tentative settlement agreement, the Investigating Officer(s) would submit the settlement agreement as part of their proposed recommendations to the Board Members for approval or disapproval, along with the summary of findings supporting the proposed agreement. The Board would then decide, in accordance with § 1122.5, whether to approve the agreement and/or dismiss the investigation or open a Formal Board Proceeding.
        Conclusion

        The proposed regulations described above and set forth below implement the investigative authority conferred to the Board in the STB Reauthorization Act, in conformance with the requirements of Section 12. The Board invites public comment on the proposed regulations described herein.
        Regulatory Flexibility Act

        The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. Sections 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, Section 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities.” Section 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).
        The proposed regulations here only specify procedures related to investigations of matters of regional or national significance conducted on the Board's own initiative and do not mandate or circumscribe the conduct of small entities. Therefore, the Board certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities as defined by the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

          List of Subjects in 49 CFR part 1122
          Investigations.

          It is ordered:

        1. Comments are due by June 15, 2016. Replies are due by July 15, 2016.
        2. A copy of this decision will be served upon Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.
        3. Notice of this decision will be published in the Federal Register.
        4. This decision is effective on its service date.
        Decided: May 6, 2016.
        By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.

          Kenyatta Clay,
          Clearance Clerk.

        For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend title 49, chapter X, subchapter B, of the Code of Federal Regulations by adding part 1122 to read as follows:

          PART 1122—BOARD-INITIATED INVESTIGATIONS

            Sec.
            1122.1
            Definitions.
            1122.2
            Scope and applicability of this part.
            1122.3
            Preliminary Fact-Finding.
            1122.4
            Board-Initiated Investigations.
            1122.5
            Procedural rules.
            1122.6
            Confidentiality.
            1122.7
            Request for confidential treatment.
            1122.8
            Limitation on participation.
            1122.9
            Power of persons conducting Board-Initiated Investigations.
            1122.10
            Transcripts.
            1122.11
            Certifications and false statements.
            1122.12
            Right to submit statements.
            Appendix A to Part 1122—Informal Procedure Relating to Recommendations and Summary of Findings From the Board-Initiated Investigation

            Authority:
             49 U.S.C. 1321, 11144, 11701.

            § 1122.1
            Definitions.
            (a) Board-Initiated Investigation means an investigation instituted by the Board pursuant to an Order of Investigation and conducted in accordance with Section 12 of the Surface Transportation Board Reauthorization Act of 2015, now incorporated and codified at 49 U.S.C. 11701.
            (b) Formal Board Proceeding means a public proceeding instituted by the Board pursuant to an Order to Show Cause after a Board-Initiated Investigation has been conducted.
            (c) Investigating officer(s) means the individual(s) designated by the Board in an Order of Investigation to conduct a Board-Initiated Investigation.
            (d) Preliminary fact-finding means an inquiry conducted by Board staff prior to the opening of a Board-Initiated Investigation.

            § 1122.2
            Scope and applicability of this part.
            This part applies only to matters subject to Section 12 of the Surface Transportation Board Reauthorization Act of 2015, 49 U.S.C. 11701.

            § 1122.3
            Preliminary Fact-Finding.

            The Board staff may, in its discretion, conduct nonpublic Preliminary Fact-Finding, subject to the provisions of § 1122.6, to determine if an alleged violation could be of national or regional significance and subject to the Board's jurisdiction under 49 U.S.C. Subtitle IV, Part A, and warrants a Board-Initiated Investigation. Where it appears from Preliminary Fact-Finding that a Board-Initiated Investigation is appropriate, staff shall so recommend to the Board. Where it appears from the Preliminary Fact-Finding that a Board-Initiated Investigation is not appropriate, staff shall conclude its Preliminary Fact-Finding and notify any parties involved that the process has been terminated.

            § 1122.4
            Board-Initiated Investigations.
            The Board may, in its discretion, commence a nonpublic Board-Initiated Investigation of any matter of national or regional significance that is subject to the jurisdiction of the Board under 49 U.S.C. Subtitle IV, Part A, subject to the provisions of § 1122.6, by issuing an Order of Investigation. Orders of Investigation shall state the basis for the Board-Initiated Investigation and identify the Investigating Officer(s). The Board may add or remove Investigating Officer(s) during the course of a Board-Initiated Investigation. To the extent practicable, an Investigating Officer shall not participate in any decisionmaking functions in any Formal Board Proceeding(s) opened as a result of any Board-Initiated Investigation(s) that he or she conducted.

            § 1122.5
            Procedural rules.
            (a) Not later than 30 days after commencing a Board-Initiated Investigation, the Investigating Officer(s) shall provide the parties under investigation a copy of the Order of Investigation. If the Board adds or removes Investigating Officer(s) during the course of the Board-Initiated Investigation, it shall provide written notification to the parties under investigation.
            (b) Not later than 275 days after issuance of the Order of Investigation, the Investigating Officer(s) shall submit to the Board and the parties under investigation:
            (1) Any recommendations made as a result of the Board-Initiated Investigation; and
            (2) A summary of the findings that support such recommendations.
            (c) Not later than 90 days after receiving the recommendations and summary of findings, the Board shall decide whether to dismiss the Board-Initiated Investigation if no further action is warranted or initiate a Formal Board Proceeding to determine whether any provision of 49 U.S.C. Subtitle IV, Part A, has been violated in accordance with Section 12 of the Surface Transportation Board Reauthorization Act of 2015. The Board shall dismiss any Board-Initiated Investigation that is not concluded with administrative finality within one year after the date on which it was commenced.
            (d) A Formal Board Proceeding commences upon issuance of a public Order to Show Cause. The Order to Show Cause shall state the basis for the Formal Board Proceeding and set forth a procedural schedule.

            § 1122.6
            Confidentiality.
            (a) All information and documents obtained under § 1122.3 or § 1122.4, whether or not obtained pursuant to a Board request or subpoena, and all activities conducted by the Board under this part prior to the opening of a Formal Board Proceeding, shall be treated as nonpublic by the Board and its staff except to the extent that:
            (1) The Board directs or authorizes the public disclosure of activities conducted under this part prior to the opening of a Formal Board Proceeding;
            (2) The information or documents are made a matter of public record during the course of an administrative proceeding; or
            (3) Disclosure is required by the Freedom of Information Act, 5 U.S.C. 552 or other relevant provision of law.
            (b) Procedures by which persons submitting information to the Board pursuant to this part of title 49, chapter X, subchapter B, of the Code of Federal Regulations may specifically seek confidential treatment of information for purposes of the Freedom of Information Act disclosure are set forth in § 1122.7. A request for confidential treatment of information for purposes of Freedom of Information Act disclosure shall not, however, prevent disclosure for law enforcement purposes or when disclosure is otherwise found appropriate in the public interest and permitted by law.

            § 1122.7
            Request for confidential treatment.
            Any person that produces documents to the Board pursuant to § 1122.3 or § 1122.4 may claim that some or all of the information contained in a particular document or documents is exempt from the mandatory public disclosure requirements of the Freedom of Information Act (FOIA), 5 U.S.C. 552, is information referred to in 18 U.S.C. 1905, or is otherwise exempt by law from public disclosure. In such case, the person making such a claim shall, at the time the person produces the document to the Board, indicate on the document that a request for confidential treatment is being made for some or all of the information in the document. In such case, the person making such a claim also shall file a brief statement specifying the specific statutory justification for non-disclosure of the information in the document for which confidential treatment is claimed. If the person states that the information comes within the exception in 5 U.S.C. 552(b)(4) for trade secrets and commercial or financial information, and the information is responsive to a subsequent FOIA request to the Board, 49 CFR 1001.4 shall apply.

            § 1122.8
            Limitation on participation.
            No party who is not the subject of a Board-Initiated Investigation may intervene or participate as a matter of right in any such Board-Initiated Investigation under this part.

            § 1122.9
            Power of persons conducting Board-Initiated Investigations.
            (a) The Investigating Officer(s), in connection with any Board-Initiated Investigation, may interview or depose witnesses, inspect property and facilities, and request and require the production of any information, documents, books, papers, correspondence, memoranda, agreements, or other records, in any form or media, potentially relevant or material to the issues related to the Board-Initiated Investigation. The Investigating Officer(s), in connection with a Board-Initiated Investigation, also may issue subpoenas, in accordance with 49 U.S.C. 1321, to compel the attendance of witnesses, the production of any of the records and other documentary evidence listed above, and access to property and facilities.
            (b) With regard for due process, the Board may for good cause exclude a particular attorney from further participation in any Board-Initiated Investigation in which the attorney is obstructing the Board-Initiated Investigation.

            § 1122.10
            Transcripts.
            Transcripts, if any, of investigative testimony shall be recorded solely by the official reporter or other person or by means authorized by the Board or by the Investigating Officer(s).

            § 1122.11
            Certifications and false statements.

            (a) When producing documents under this part, the producing party shall submit a statement certifying that such person has made a diligent search for the responsive documents and is producing all the documents called for by the Investigating Officer(s). If any responsive document(s) are not produced for any reason, the producing party shall state the reason therefor.
            (b) If any responsive documents are withheld because of a claim of the attorney-client privilege, work product privilege, or other applicable privilege, the producing party shall submit a list of such documents which shall, for each document, identify the attorney involved, the client involved, the date of the document, the person(s) shown on the document to have prepared and/or sent the document, and the person(s) shown on the document to have received copies of the document.
            (c) Under this part, any person making false statements under oath is subject to criminal penalties for perjury under 18 U.S.C. 1621. Any person who knowingly and willfully makes false or fraudulent statements, whether under oath or otherwise, or who falsifies, conceals, or covers up a material fact, or submits any false writing or document, knowing it to contain false, fictitious, or fraudulent information is subject to the criminal penalties set forth in 18 U.S.C. 1001.

            § 1122.12
            Right to submit statements.
            Any party subject to a Board-Initiated Investigation may, at any time during the course of a Board-Initiated Investigation, submit to the Board written statements of facts or circumstances, with any relevant supporting evidence, concerning the subject of that investigation.

              Appendix A to Part 1122—Informal Procedure Relating to Recommendations and Summary of Findings From the Board-Initiated Investigation
              (a) After conducting sufficient investigation and prior to submitting recommendations and a summary of findings to the Board, the Investigating Officer, in his or her discretion, may inform the parties under investigation (orally or in writing) of the proposed recommendations and summary of findings that may be submitted to the Board. If the Investigating Officer so chooses, he or she shall also advise the parties under investigation that they may submit a written statement, as explained below, to the Investigating Officer prior to the consideration by the Board of the recommendations and summary of findings. This optional process is in addition to, and does not limit in any way, the rights of parties under investigation otherwise provided for in this part.
              (b) Unless otherwise provided for by the Investigating Officer, parties under investigation may submit written statement(s) described above within 14 days after of being informed by the Investigating Officer of the proposed recommendation(s) and summary of findings, and such statements shall be no more than 15 pages, double spaced on 81/2 by 11 inch paper, setting forth the views of the parties under investigation of factual or legal matters relevant to the commencement of a Formal Board Proceeding. Any statement of fact included in the submission must be sworn to by a person with personal knowledge of such fact.
              (c) Such written statements, if the parties under investigation choose to submit, shall be submitted to the Investigating Officer. The Investigating Officer shall provide any written statement(s) from the parties under investigation to the Board at the same time that he or she submits his or her recommendations and summary of findings to the Board.

      [FR Doc. 2016-11382 Filed 5-16-16; 8:45 am]
       BILLING CODE 4915-01-P


        DEPARTMENT OF THE TREASURY
        Internal Revenue Service
        26 CFR Parts, 1, 31, and 301
        [REG-101896-09]
        RIN 1545-Bl66
        Basis Reporting by Securities Brokers and Basis Determination for Stock

        Correction
        In proposed rule document E9-29855 beginning on page 67010 in the issue of Thursday, December 17, 2009, make the following corrections:
        1. On page 67020, in the second column, under heading 13., in the second line, “exempt”, should read “except”.

          §1.6045B-1
          [Corrected]
          2. On page 67041, in §1.6045B-1(f)Example 1(iii), in the fifth line,  “sites” should read “site”.

      [FR Doc. C1-2009-29855 Filed 2-5-10; 8:45 am]
      BILLING CODE 1505-01-D