Federal Register Vol. 81, No.226,

Federal Register Volume 81, Issue 226 (November 23, 2016)

Page Range84389-85104
FR Document

81_FR_226
Current View
Page and SubjectPDF
81 FR 85103 - National Child's Day, 2016PDF
81 FR 85101 - National Family Week, 2016PDF
81 FR 84459 - Food LabelingPDF
81 FR 84465 - Food LabelingPDF
81 FR 84616 - Government in the Sunshine Act Meeting NoticePDF
81 FR 84615 - Government in the Sunshine Act Meeting NoticePDF
81 FR 84458 - Extension of Import Restrictions Imposed on Certain Archaeological and Ethnological Material From GreecePDF
81 FR 84581 - Notice of Proposed Subaward Under a Council-Selected Restoration Component AwardPDF
81 FR 84612 - Notice of Availability of the 2017-2022 Outer Continental Shelf Oil and Gas Leasing Proposed Final ProgramPDF
81 FR 84673 - Central of Georgia Railroad Company-Abandonment Exemption-in Newton County, Ga.PDF
81 FR 84674 - Approval of Noise Compatibility Program for Bob Hope Airport, Burbank, CaliforniaPDF
81 FR 84623 - Submission for OMB Review, Comment Request, Proposed Collection: Community Catalyst: The Roles of Libraries and Museums as Enablers of Community Vitality and Co-Creators of Positive Community Change-A National Leadership Grants Special InitiativePDF
81 FR 84556 - Fisheries of the Exclusive Economic Zone off Alaska; Application for an Exempted Fishing PermitPDF
81 FR 84621 - Division of Longshore and Harbor Workers' Compensation Proposed Extension of Existing Collection; Comment RequestPDF
81 FR 84577 - FIFRA Scientific Advisory Panel; Notice of Rescheduled Public MeetingPDF
81 FR 84620 - Advisory Board on Toxic Substances and Worker Health: Subcommittee on Medical Advice re: Weighing Medical EvidencePDF
81 FR 84576 - Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permit for Hu Honua Bioenergy Facility, LLC; Pepeekeo, HawaiiPDF
81 FR 84622 - Division of Longshore and Harbor Workers' Compensation Proposed Extension of Existing Collection; Comment RequestPDF
81 FR 84623 - Submission for OMB Review; Comment RequestPDF
81 FR 84619 - Proposed Extension of the Information Collection Disclosure to Workers Under the Migrant and Seasonal Agricultural Worker Protection ActPDF
81 FR 84618 - Comment Request; State Exchange on Employment and Disability (SEED) Initiative Implementation Evaluation SurveyPDF
81 FR 84576 - Notice of a Public Meeting of the National Drinking Water Advisory CouncilPDF
81 FR 84576 - Notice of Administrative Settlement Agreement for Recovery of Past Response Costs Pursuant to Section 122(H) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as AmendedPDF
81 FR 84578 - Federal Interagency Steering Committee on Multimedia Environmental ModelingPDF
81 FR 84577 - Proposed Information Collection Request; Comment Request; Reformulated Gasoline Commingling Provisions (Renewal)PDF
81 FR 84507 - Tomatoes Grown in Florida; Increased Assessment RatePDF
81 FR 84559 - Submission for OMB Review; Comment RequestPDF
81 FR 84628 - Advisory Committee on Small and Emerging CompaniesPDF
81 FR 84506 - United States Standards for Grades of Frozen OnionsPDF
81 FR 84401 - Raisins Produced From Grapes Grown in California and Imported Raisins; Removal of LanguagePDF
81 FR 84547 - Request for Approval of a New Information Collection for the Processed Egg and Egg Products Verification ProgramPDF
81 FR 84693 - Unblocking of Specially Designated National and Blocked Person Pursuant to Executive Order 13391PDF
81 FR 84553 - Notice of National Advisory Council on Innovation and Entrepreneurship MeetingPDF
81 FR 84608 - 60-Day Notice of Proposed Information Collection: FHA Single Family Model Mortgage DocumentsPDF
81 FR 84610 - Notice of HUD Vacant Loan Sales (HVLS 2017-1)PDF
81 FR 84559 - Submission for OMB Review; Proposed Revised Information Collection Comment Request; Limited Access Death Master File Subscriber Certification FormPDF
81 FR 84559 - Civil Penalties; Notice of Adjusted Maximum AmountsPDF
81 FR 84579 - Notice of Agreements FiledPDF
81 FR 84554 - Finished Carbon Steel Flanges From India, Italy, Spain: Postponement of Preliminary Determinations of the Less-Than-Fair-Value InvestigationsPDF
81 FR 84555 - Certain Uncoated Paper From Portugal: Final Results of Antidumping Duty Changed Circumstances ReviewPDF
81 FR 84618 - Notice of Decisions on States' Applications for Relief From Tax Credit Reductions Provided Under Section 3302 of the Federal Unemployment Tax Act (FUTA) Applicable in 2016PDF
81 FR 84548 - National Advisory Committee on Meat and Poultry Inspection; Nominations for MembershipPDF
81 FR 84611 - Notice of Availability of the Draft Environmental Impact Statement for the Proposed Bruneau-Owyhee Sage-Grouse Habitat Project, Owyhee County, IdahoPDF
81 FR 84565 - The SunShot Prize: Solar in Your Community ChallengePDF
81 FR 84551 - Notice of Public Meeting of the South Carolina Advisory Committee To Discuss Future Civil Rights ProjectsPDF
81 FR 84552 - Notice of Public Meeting of the North Carolina Advisory Committee for a Meeting To Discuss Potential Project TopicsPDF
81 FR 84552 - Notice of Public Meeting of the Georgia Advisory Committee for an Orientation Meeting To Welcome the New CommitteePDF
81 FR 84415 - Federal Reserve Bank Capital StockPDF
81 FR 84548 - Notice of Request for Extension of Approval of an Information Collection; Spring Viremia of Carp; Import Restrictions on Certain Live Fish, Fertilized Eggs, and GametesPDF
81 FR 84686 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 84692 - General Motors LLC, Withdrawal of Petition To Amend Takata DIR SchedulePDF
81 FR 84554 - Ammonium Sulfate From the People's Republic of China: Correction to the Preliminary Determination of Sales at Less Than Fair ValuePDF
81 FR 84583 - Statement of Organization, Functions, and Delegations of AuthorityPDF
81 FR 84483 - National Flood Insurance Program (NFIP): Financial Assistance/Subsidy ArrangementPDF
81 FR 84673 - Kokomo Rail, LLC-Acquisition and Operation Exemption-Rail Line of Kokomo Rail Co., Inc.PDF
81 FR 84688 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 84562 - Intent To Prepare a Draft Environmental Impact Statement for Modification of the Bayou Lafourche and Lafourche-Jump Waterway, Louisiana, Navigation Channel Project in Lafourche ParishPDF
81 FR 84677 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 84675 - Qualification of Drivers; Exemption Applications; DiabetesPDF
81 FR 84684 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 84689 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel HO'ONANEA; Invitation for Public CommentsPDF
81 FR 84689 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel ROCK TIME; Invitation for Public CommentsPDF
81 FR 84601 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 84550 - Happy Camp/Oak Knoll Ranger District; California; Horse Creek Community Protection and Forest Restoration ProjectPDF
81 FR 84580 - Agency Information Collection Activities; Submission for OMB Review; Comment RequestPDF
81 FR 84591 - Request for Nominations of Potential Reviewers To Serve on the Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP)PDF
81 FR 84592 - Advisory Committee on Breast Cancer in Young Women, Centers for Disease Control and Prevention: Notice of Charter RenewalPDF
81 FR 84556 - Environmental Technologies Trade Advisory Committee (ETTAC) Public MeetingPDF
81 FR 84564 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; 2018 Teaching and Learning International Survey (TALIS 2018) Main Study Recruitment and Field Test-Questionnaires Change RequestPDF
81 FR 84562 - Notice of Intent To Grant a Partially Exclusive Patent LicensePDF
81 FR 84562 - Board of Visitors of the U.S. Air Force Academy Notice of MeetingPDF
81 FR 84563 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Gainful Employment Disclosure TemplatePDF
81 FR 84530 - Petitions for Reconsideration and Clarification of Action in Rulemaking ProceedingPDF
81 FR 84637 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, to MSRB Rules G-15 and G-30 To Require Disclosure of Mark-Ups and Mark-Downs to Retail Customers on Certain Principal Transactions and To Provide Guidance on Prevailing Market PricePDF
81 FR 84574 - Combined Notice of Filings #1PDF
81 FR 84574 - Combined Notice of FilingsPDF
81 FR 84575 - Combined Notice of Filings #2PDF
81 FR 84659 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, Relating to FINRA Rule 2232 (Customer Confirmations) To Require Members To Disclose Additional Pricing Information on Retail Customer Confirmations Relating to Transactions in Certain Fixed Income SecuritiesPDF
81 FR 84629 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Adopt a New Exception in Exchange Rule 1000(f) for Sub-MPV Split-Price OrdersPDF
81 FR 84652 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of an Amendment to Rule 8.11, Effective Date of Judgment and the Adoption of Rule 8.18, Release of Disciplinary Complaints, Decisions and Other InformationPDF
81 FR 84631 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of an Amendment to Rule 8.11, Effective Date of Judgment and the Adoption of Rule 8.18, Release of Disciplinary Complaints, Decisions and Other InformationPDF
81 FR 84625 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of an Amendment to Rule 8.11, Effective Date of Judgment and the Adoption of Rule 8.18, Release of Disciplinary Complaints, Decisions and Other InformationPDF
81 FR 84655 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of an Amendment to Rule 8.11, Effective Date of Judgement and the Adoption of Rule 8.18, Release of Disciplinary Complaints, Decisions and Other InformationPDF
81 FR 84625 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change Related to the Exchange's Equity Options Platform To Adopt a Price Improvement Auction, the Bats Auction MechanismPDF
81 FR 84635 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To Conform to Proposed Amendments to Securities Exchange Act Rule 15c6-1(A) To Shorten the Standard Settlement Cycle From Three Business Days After the Trade Date (“T+3”) to Two Business Days After the Trade Date (“T+2”)PDF
81 FR 84616 - Hearing of the Judicial Conference Advisory Committee on Rules of Civil Procedure, Federal Register Citation of Previous Announcement: 81FR 52713PDF
81 FR 84616 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 84478 - Cost of Living Adjustment to Satellite Carrier Compulsory License Royalty RatesPDF
81 FR 84546 - Fisheries off West Coast States; Highly Migratory Fisheries; California Drift Gillnet Fishery; Protected Species Hard Caps for the California/Oregon Large-Mesh Drift Gillnet Fishery; Extension of Public Comment PeriodPDF
81 FR 84478 - Cost of Living Adjustment for Performance of Musical Compositions by Colleges and UniversitiesPDF
81 FR 84403 - The U.S. Asia-Pacific Economic Cooperation Business Travel Card ProgramPDF
81 FR 84505 - Revisions to Framework Adjustment 55 to the Northeast Multispecies Fishery Management PlanPDF
81 FR 84544 - Fisheries of the Northeastern United States; Atlantic Surfclam and Ocean Quahog Fishery; Proposed 2017-2018 Fishing QuotasPDF
81 FR 84538 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Hogfish Management MeasuresPDF
81 FR 84560 - Conclusion of Consumer Product Safety Commission International Trade Data System Initial Test Concerning the Electronic Filing of Targeting/Enforcement DataPDF
81 FR 84501 - Atlantic Highly Migratory Species; Removal of Vessel Upgrade Restrictions for Swordfish Directed Limited Access and Atlantic Tunas Longline Category PermitsPDF
81 FR 84570 - ANR Pipeline Company; Notice of ApplicationPDF
81 FR 84569 - Records Governing Off-the-Record Communications; Public NoticePDF
81 FR 84568 - 96WI 8ME, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 84571 - Mine Falls Limited Partnership; City of Nashua; Notice of Application for Transfer of License and Soliciting Comments, Motions To Intervene, and ProtestsPDF
81 FR 84572 - Magellan Midstream Partners, L.P.; Notice of Petition for Declaratory OrderPDF
81 FR 84566 - MPower Energy; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 84572 - MPower Energy NJ LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 84571 - American Falls Solar II, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request For Blanket Section 204 AuthorizationPDF
81 FR 84568 - American Falls Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 84566 - Notice of ApplicationPDF
81 FR 84567 - 2016 ESA Project Company, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 84573 - Dominion Carolina Gas Transmission, LLC; Notice of Request Under Blanket AuthorizationPDF
81 FR 84572 - Transcontinental Gas Pipe Line Company, LLC; Tennessee Gas Pipeline Company, LLC; Notice of ApplicationPDF
81 FR 84568 - Boardwalk Storage Company, LLC; Notice of ApplicationPDF
81 FR 84581 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 84491 - Atlantic Highly Migratory Species; 2017 Atlantic Shark Commercial Fishing SeasonPDF
81 FR 84419 - Fisheries Off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Commercial Sablefish Fishing Regulations and Electronic Fish TicketsPDF
81 FR 84434 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 113PDF
81 FR 84690 - Reports, Forms, and Recordkeeping Requirements: Agency Information Collection ActivityPDF
81 FR 84617 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection; Bureau of Justice Assistance Application Form: Public Safety Officers Educational AssistancePDF
81 FR 84600 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
81 FR 84598 - National Institute of Diabetes and Digestive and Kidney Diseases: Notice of Closed MeetingsPDF
81 FR 84599 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed Meetings Pursuant to Section 10(d) of the Federal Advisory Committee Act, as Amended (5 U.S.C. App.), Notice Is Hereby Given of the Following Meetings.PDF
81 FR 84598 - National Cancer Institute Amended Notice of MeetingPDF
81 FR 84600 - National Cancer Institute; Notice of Closed MeetingsPDF
81 FR 84601 - National Cancer Institute; Amended Notice of MeetingPDF
81 FR 84601 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 84599 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 84608 - Technical Mapping Advisory CouncilPDF
81 FR 84553 - Regulations and Procedures Technical Advisory Committee; Notice of Partially Closed MeetingPDF
81 FR 84603 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; National Flood Insurance Program Policy FormsPDF
81 FR 84617 - Notice Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 84606 - Proposed Flood Hazard DeterminationsPDF
81 FR 84604 - Iowa; Major Disaster and Related DeterminationsPDF
81 FR 84605 - Proposed Flood Hazard DeterminationsPDF
81 FR 84604 - Virginia; Amendment No. 2 to Notice of a Major Disaster DeclarationPDF
81 FR 84605 - Agency Information Collection Activities: Proposed Collection; Comment Request; Write Your Own (WYO) Company Participation Criteria; New ApplicantPDF
81 FR 84553 - Emerging Technology And Research Advisory Committee; Notice of Open MeetingPDF
81 FR 84594 - Nonprescription Sunscreen Drug Products-Safety and Effectiveness Data; Guidance for Industry; AvailabilityPDF
81 FR 84624 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978PDF
81 FR 84597 - Contract Manufacturing Arrangements for Drugs: Quality Agreements; Guidance for Industry; AvailabilityPDF
81 FR 84592 - Nonprescription Sunscreen Drug Products-Format and Content of Data Submissions; Guidance for Industry; AvailabilityPDF
81 FR 84465 - Food and Drug Administration Review and Action on Over-the-Counter Time and Extent ApplicationsPDF
81 FR 84481 - Findings of Failure To Attain the 1997 PM2.5PDF
81 FR 84479 - Air Plan Approval; FL Infrastructure Requirements for the 2010 1-hour NO2PDF
81 FR 84389 - Resource Agency Hearings and Alternatives Development Procedures in Hydropower LicensesPDF
81 FR 84510 - Provisions for Removing Commodity Research and Promotion Board Members and StaffPDF
81 FR 84595 - Evaluation of the Beneficial Physiological Effects of Isolated or Synthetic Non-Digestible Carbohydrates; Request for Scientific Data, Information, and CommentsPDF
81 FR 84516 - Scientific Evaluation of the Evidence on the Beneficial Physiological Effects of Isolated or Synthetic Non-Digestible Carbohydrates Submitted as a Citizen Petition; Draft Guidance for Industry; AvailabilityPDF
81 FR 84526 - Electronic Filing of DocumentsPDF
81 FR 84696 - Joint Industry Plan; Order Approving the National Market System Plan Governing the Consolidated Audit TrailPDF
81 FR 84396 - Common Crop Insurance Regulations, Various Crop ProvisionsPDF
81 FR 85038 - Approval and Promulgation of Implementation Plans; State of Arizona; Revised Format for Materials Incorporated by ReferencePDF
81 FR 84531 - Revision of the Freedom of Information Act Regulations of the National Railroad Passenger CorporationPDF
81 FR 84518 - Fractions RulePDF

Issue

81 226 Wednesday, November 23, 2016 Contents Agency Health Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 84581-84583 2016-28155 Agricultural Marketing Agricultural Marketing Service RULES Imports: Raisins Produced from Grapes Grown in California and Imported Raisins; Removal of Language, 84401-84403 2016-28251 PROPOSED RULES Grade Standards: United States Standards for Grades of Frozen Onions, 84506-84507 2016-28255 Increased Assessment Rates: Tomatoes Grown in Florida, 84507-84510 2016-28259 Provisions for Removing Commodity Research and Promotion Board Members and Staff, 84510-84516 2016-28050 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Processed Egg and Egg Products Verification Program, 84547-84548 2016-28250 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Federal Crop Insurance Corporation

See

Food Safety and Inspection Service

See

Forest Service

RULES Resource Agency Hearings and Alternatives Development Procedures in Hydropower Licenses, 84389-84396 2016-28063
AIRFORCE Air Force Department NOTICES Exclusive Patent Licenses; Proposed Approvals: InfiniPure, LLC, 84562 2016-28202 Meetings: U.S. Air Force Academy Board of Visitors, 84562 2016-28201 Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Spring Viremia of Carp; Import Restrictions on Certain Live Fish, Fertilized Eggs, and Gametes, 84548 2016-28230 Centers Disease Centers for Disease Control and Prevention NOTICES Charter Renewals: Advisory Committee on Breast Cancer in Young Women, 84592 2016-28206 Requests for Nominations: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 84591-84592 2016-28207 Statements of Organization, Functions, and Delegations of Authority, 84583-84591 2016-28225 Civil Rights Civil Rights Commission NOTICES Meetings: Georgia Advisory Committee, 84552 2016-28232 North Carolina Advisory Committee, 84552 2016-28233 South Carolina Advisory Committee, 84551-84552 2016-28234 Commerce Commerce Department See

Economic Development Administration

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

National Technical Information Service

Consumer Product Consumer Product Safety Commission NOTICES Civil Penalties: Adjusted Maximum Amounts, 84559-84560 2016-28242 International Trade Data System Initial Test Concerning the Electronic Filing of Targeting/Enforcement Data, 84560-84562 2016-28172 Copyright Royalty Board Copyright Royalty Board RULES Cost of Living Adjustments: Performance of Musical Compositions by Colleges and Universities, 84478 2016-28178 Satellite Carrier Compulsory License Royalty Rates, 84478-84479 2016-28180 PROPOSED RULES Electronic Filing of Documents, 84526-84530 2016-27932 Defense Department Defense Department See

Air Force Department

See

Engineers Corps

Economic Development Economic Development Administration NOTICES Meetings: National Advisory Council on Innovation and Entrepreneurship, 84553 2016-28247 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2018 Teaching and Learning International Survey (TALIS 2018) Main Study Recruitment and Field Test—Questionnaires Change Request, 84564-84565 2016-28204 Gainful Employment Disclosure Template, 84563-84564 2016-28200 Employment and Training Employment and Training Administration NOTICES Decisions: States' Applications for Relief from Tax Credit Reductions, 84618 2016-28238 Energy Department Energy Department See

Energy Efficiency and Renewable Energy Office

See

Federal Energy Regulatory Commission

Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES The SunShot Prize—Solar in Your Community Challenge, 84565-84566 2016-28235 Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Bayou Lafourche and Lafourche-Jump Waterway, Louisiana, Navigation Channel Project in Lafourche Paris, 84562-84563 2016-28218 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arizona; Revised Format for Materials, 85038-85098 2016-27685 Findings of Failure to Attain the 1997 Fine Particulate Matter Standards; San Joaquin Valley, CA, 84481-84483 2016-28100 Florida; Infrastructure Requirements for the 2010 1-hour Nitrogen Dioxide National Ambient Air Quality Standards, 84479-84481 2016-28098 NOTICES Administrative Cost Recovery Settlements: CERCLA; Sharon Steel Corporation Superfund Site, Mercer County, PA, 84576 2016-28262 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reformulated Gasoline Commingling Provisions, 84577-84578 2016-28260 Clean Air Act Operating Permit Program; Petitions: Hu Honua Bioenergy Facility, LLC; Pepeekeo, Hawaii, 84576-84577 2016-28268 Meetings: Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel, 84577 2016-28270 Federal Interagency Steering Committee on Multimedia Environmental Modeling, 84578-84579 2016-28261 National Drinking Water Advisory Council, 84576 2016-28263 Federal Aviation Federal Aviation Administration NOTICES Noise Compatibility Program; Approvals: Bob Hope Airport, Burbank, CA, 84674-84675 2016-28291 Federal Communications Federal Communications Commission PROPOSED RULES Petitions for Rulemaking: Reconsideration and Clarification of Action, 84530-84531 2016-28199 Federal Crop Federal Crop Insurance Corporation RULES Common Crop Insurance Regulations; Various Crop Provisions, 84396-84401 2016-27720 Federal Emergency Federal Emergency Management Agency RULES National Flood Insurance Program: Financial Assistance/Subsidy, 84483-84491 2016-28224 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Flood Insurance Program Policy Forms, 84603-84604 2016-28137 Write Your Own Company Participation Criteria; New Applicant, 84605 2016-28129 Emergency and Related Determinations: Flood Hazard Determinations; Proposals, 84605-84607 2016-28132 2016-28135 Major Disasters and Related Determinations: Iowa, 84604 2016-28134 Virginia; Amendment No. 2, 84604 2016-28131 Meetings: Technical Mapping Advisory Council, 84608 2016-28139 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: ANR Pipeline Company, 84570-84571 2016-28169 Boardwalk Storage Co., LLC, 84568-84569 2016-28156 Chesapeake Appalachia, LLC; Columbia Natural Resources, LLC; Core Appalachia Midstream, LLC, 84566-84567 2016-28160 Transcontinental Gas Pipe Line Co., LLC; Tennessee Gas Pipeline Co., L.L.C., 84572-84573 2016-28157 Combined Filings, 84574-84576 2016-28191 2016-28192 2016-28196 Declaratory Orders; Petitions: Magellan Midstream Partners, L.P., 84572 2016-28165 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: 2016 ESA Project Company, LLC, 84567-84568 2016-28159 96WI 8ME, LLC, 84568 2016-28167 American Falls Solar II, LLC, 84571 2016-28162 American Falls Solar, LLC, 84568 2016-28161 MPower Energy, 84566 2016-28164 MPower Energy NJ LLC, 84572 2016-28163 License Transfer; Applications: Mine Falls Limited Partnership; Nashua, NH, 84571-84572 2016-28166 Records Governing Off-the-Record Communications, 84569-84570 2016-28168 Requests under Blanket Authorizations: Dominion Carolina Gas Transmission, LLC, 84573-84574 2016-28158 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 84579 2016-28241 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers; Exemption Applications: Diabetes, 84675-84677 2016-28216 Diabetes Mellitus, 84677-84686, 84688-84689 2016-28215 2016-28217 2016-28219 Vision, 84686-84688 2016-28228 Federal Reserve Federal Reserve System RULES Federal Reserve Bank Capital Stock, 84415-84419 2016-28231 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 84580-84581 2016-28208 Food and Drug Food and Drug Administration RULES Food Labeling; CFR Correction, 84459-84465 2016-28363 2016-28364 2016-28367 Review and Action on Over-the-Counter Time and Extent Applications, 84465-84477 2016-28120 PROPOSED RULES Guidance: Scientific Evaluation of the Evidence on the Beneficial Physiological Effects of Isolated or Synthetic Non-digestible Carbohydrates Submitted as a Citizen Petition, 84516-84517 2016-27949 NOTICES Guidance: Contract Manufacturing Arrangements for Drugs; Quality Agreements, 84597-84598 2016-28122 Nonprescription Sunscreen Drug Products—Format and Content of Data Submissions, 84592-84594 2016-28121 Nonprescription Sunscreen Drug Products—Safety and Effectiveness Data, 84594-84595 2016-28124 Requests for Information: Evaluation of the Beneficial Physiological Effects of Isolated or Synthetic Non-Digestible Carbohydrates, 84595-84596 2016-27950 Food Safety Food Safety and Inspection Service NOTICES Requests for Nominations: National Advisory Committee on Meat and Poultry Inspection, 84548-84550 2016-28237 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 84693 2016-28248 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Happy Camp/Oak Knoll Ranger District, California; Horse Creek Community Protection and Forest Restoration Project, 84550-84551 2016-28209 Gulf Coast Ecosystem Restoration Council Gulf Coast Ecosystem Restoration Council NOTICES Proposed Subaward under a Council-Selected Restoration Component Award, 84581 2016-28316 Health and Human Health and Human Services Department See

Agency for Healthcare Research and Quality

See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Housing Administration Single Family Model Mortgage Documents, 84608-84610 2016-28245 Vacant Loan Sales, 84610-84611 2016-28244 Industry Industry and Security Bureau NOTICES Meetings: Emerging Technology And Research Advisory Committee, 84553 2016-28127 Regulations and Procedures Technical Advisory Committee, 84553-84554 2016-28138 Institute of Museum and Library Services Institute of Museum and Library Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Community Catalyst: The Roles of Libraries and Museums as Enablers of Community Vitality and Co-Creators of Positive Community Change—A National Leadership Grants Special Initiative, 84623-84624 2016-28275 Interior Interior Department See

Land Management Bureau

See

Ocean Energy Management Bureau

RULES Resource Agency Hearings and Alternatives Development Procedures in Hydropower Licenses, 84389-84396 2016-28063
Internal Revenue Internal Revenue Service PROPOSED RULES Fractions Rule, 84518-84526 2016-27105 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Uncoated Paper from Portugal, 84555 2016-28239 Determinations of Sales at Less than Fair Value: Ammonium Sulfate from the People's Republic of China, 84554-84555 2016-28226 Finished Carbon Steel Flanges from India, Italy, Spain, 84554 2016-28240 Meetings: Environmental Technologies Trade Advisory Committee, 84556 2016-28205 International Trade Com International Trade Commission NOTICES Meetings; Sunshine Act, 84615-84616 2016-28360 2016-28361 2016-28362 Judicial Conference Judicial Conference of the United States NOTICES Hearings: Advisory Committee on Rules of Civil Procedure, 84616 2016-28182 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Bureau of Justice Assistance Application Form: Public Safety Officers Educational Assistance, 84617 2016-28150 Consent Decrees: CERCLA, 84616-84618 2016-28136 2016-28181 Labor Department Labor Department See

Employment and Training Administration

See

Wage and Hour Division

See

Workers Compensation Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Exchange on Employment and Disability Initiative Implementation Evaluation Survey, 84618-84619 2016-28264
Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Bruneau-Owyhee Sage-Grouse Habitat Project, Owyhee County, ID, 84611-84612 2016-28236 Library Library of Congress See

Copyright Royalty Board

Maritime Maritime Administration NOTICES Requests for Administrative Waivers of the Coastwise Trade Laws: Vessel HO'ONANEA, 84689-84690 2016-28214 Vessel ROCK TIME, 84689 2016-28213 National Credit National Credit Union Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 84623 2016-28266 National Foundation National Foundation on the Arts and the Humanities See

Institute of Museum and Library Services

National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 84690-84692 2016-28151 Petition to Amend Takata Defect Information Report Schedule; Withdrawal General Motors LLC, 84692-84693 2016-28227 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 84599-84601 2016-28141 2016-28142 2016-28143 National Cancer Institute, 84598, 84600-84601 2016-28144 2016-28145 2016-28146 National Institute of Diabetes and Digestive and Kidney Diseases, 84598-84599 2016-28148 National Institute of General Medical Sciences, 84600-84601 2016-28149 National Institute on Alcohol Abuse and Alcoholism, 84599 2016-28147 National Oceanic National Oceanic and Atmospheric Administration RULES Atlantic Highly Migratory Species: 2017 Atlantic Shark Commercial Fishing Season, 84491-84501 2016-28154 Removal of Vessel Upgrade Restrictions for Swordfish Directed Limited Access and Atlantic Tunas Longline Category Permits, 84501-84504 2016-28171 Fisheries of the Exclusive Economic Zone Off Alaska: Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 113, 84434-84458 2016-28152 Fisheries of the Northeastern United States: Northeast Multispecies Fishery Management Plan; Revisions to Framework Adjustment 55, 84505 2016-28175 Fisheries off West Coast States: Pacific Coast Groundfish Fishery Management Plan; Commercial Sablefish Fishing Regulations and Electronic Fish Tickets, 84419-84434 2016-28153 Resource Agency Hearings and Alternatives Development Procedures in Hydropower Licenses, 84389-84396 2016-28063 PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Reef Fish Fishery of the Gulf of Mexico; Hogfish Management Measures, 84538-84544 2016-28173 Fisheries of the Northeastern United States: Atlantic Surfclam and Ocean Quahog Fishery; Proposed 2017-2018 Fishing Quotas, 84544-84546 2016-28174 Fisheries off West Coast States: Highly Migratory Fisheries; California Drift Gillnet Fishery; Protected Species Hard Caps for the California/Oregon Large-Mesh Drift Gillnet Fishery, 84546 2016-28179 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 84559 2016-28258 Exempted Fishing Permit; Applications, 84556-84558 2016-28274 National Railroad National Railroad Passenger Corporation PROPOSED RULES Freedom of Information Act Regulations; Revision, 84531-84538 2016-27620 National Science National Science Foundation NOTICES Antarctic Conservation Act Permit; Applications, 84624 2016-28123 National Technical National Technical Information Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Limited Access Death Master File Subscriber Certification Form, 84559 2016-28243 Ocean Energy Management Ocean Energy Management Bureau NOTICES Availability of the 2017-2022 Outer Continental Shelf Oil and Gas Leasing Proposed Final Program, 84612-84615 2016-28296 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Child's Day (Proc. 9545), 85103-85104 2016-28467 National Family Week (Proc. 9544), 85099-85102 2016-28466 Securities Securities and Exchange Commission NOTICES Joint Industry Plans: National Market System Plan Governing the Consolidated Audit Trail, 84696-85035 2016-27919 Meetings: Advisory Committee on Small and Emerging Companies, 84628-84629 2016-28257 Self-Regulatory Organizations; Proposed Rule Changes: Bats BYX Exchange, Inc., 84655-84659 2016-28185 Bats BZX Exchange, Inc., 84625-84628 2016-28186 Bats EDGA Exchange, Inc., 84631-84634 2016-28187 Bats EDGX Exchange, Inc., 84625, 84652-84655 2016-28184 2016-28188 Financial Industry Regulatory Authority, Inc., 84659-84673 2016-28190 Municipal Securities Rulemaking Board, 84637-84652 2016-28197 NASDAQ PHLX, LLC, 84629-84631 2016-28189 NYSE Arca, Inc., 84635-84636 2016-28183 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 84601-84603 2016-28211 Surface Transportation Surface Transportation Board NOTICES Abandonment Exemptions: Central of Georgia Railroad Co., Newton County, GA, 84673-84674 2016-28295 Acquisitions and Operation Exemptions: Kokomo Rail, LLC from Rail Line of Kokomo Rail Co., Inc., 84673 2016-28222 Transportation Department Transportation Department See

Federal Aviation Administration

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Federal Motor Carrier Safety Administration

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Maritime Administration

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National Highway Traffic Safety Administration

Treasury Treasury Department See

Foreign Assets Control Office

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Internal Revenue Service

RULES Import Restrictions: Certain Archaeological and Ethnological Material from Greece, 84458-84459 2016-28355
Customs U.S. Customs and Border Protection RULES Business Travel Card Program; U.S. Asia-Pacific Economic Cooperation, 84403-84415 2016-28177 Import Restrictions: Certain Archaeological and Ethnological Material from Greece, 84458-84459 2016-28355 Wage Wage and Hour Division NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Workers Under the Migrant and Seasonal Agricultural Worker Protection Act, 84619-84620 2016-28265 Workers' Workers Compensation Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Division of Longshore and Harbor Workers' Compensation, 84621-84623 2016-28267 2016-28271 Meetings: Advisory Board on Toxic Substances and Worker Health: Subcommittee on Medical Advice, 84620-84621 2016-28269 Separate Parts In This Issue Part II Securities and Exchange Commission, 84696-85035 2016-27919 Part III Environmental Protection Agency, 85038-85098 2016-27685 Part IV Presidential Documents, 85099-85104 2016-28467 2016-28466 Reader Aids

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81 226 Wednesday, November 23, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Office of the Secretary 7 CFR Part 1 DEPARTMENT OF THE INTERIOR Office of the Secretary 43 CFR Part 45 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 221 [Docket No. 080220223-6961-03] RINs 0596-AC42, 1090-AA91, and 0648-AU01 Resource Agency Hearings and Alternatives Development Procedures in Hydropower Licenses AGENCY:

Office of the Secretary, Agriculture; Office of the Secretary, Interior; National Oceanic and Atmospheric Administration, Commerce.

ACTION:

Final rules; response to comments.

SUMMARY:

The Departments of Agriculture, the Interior, and Commerce are jointly issuing final rules for procedures for expedited trial-type hearings and the consideration of alternative conditions and fishway prescriptions required by the Energy Policy Act of 2005. The hearings are conducted to expeditiously resolve disputed issues of material fact with respect to conditions or prescriptions developed for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission under the Federal Power Act. The final rules make no changes to existing regulations that have been in place since the revised interim rules were published on March 31, 2015, and took effect on April 30, 2015. At the time of publication of the revised interim rules, the Departments also requested public comments on additional ways the rules could be improved. The Departments now respond to the public comments received on the revised interim rules by providing analysis and clarifications in the preamble. The Departments have determined that no revisions to existing regulations are warranted at this time.

DATES:

Effective November 23, 2016.

FOR FURTHER INFORMATION CONTACT:

Mona Koerner, Lands and Realty Management, Forest Service, U.S. Department of Agriculture, 202-205-0880; John Rudolph, Solicitor's Office, Department of the Interior, 202-208-3553; or Melanie Harris, Office of Habitat Conservation, National Marine Fisheries Service, 301-427-8636. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: I. Executive Summary

The Departments of Agriculture, the Interior, and Commerce (the Departments) are issuing final rules to implement section 241 of the Energy Policy Act of 2005. Energy Policy Act of 2005, 109 Public Law 58, 119 Stat. 594, 674, 109 Public Law 58, 2005. Section 241 created additional procedures applicable to conditions or prescriptions that a Department develops for inclusion in a hydropower license issued by Federal Energy Regulatory Commission (FERC). Specifically, section 241 amended sections 4 and 18 of the Federal Power Act (FPA) to provide for trial-type hearings on disputed issues of material fact with respect to a Department's conditions or prescriptions; and it added a new section 33 to the FPA, allowing parties to propose alternative conditions and prescriptions.

In 2015, the Departments promulgated three substantially similar revised rules—one for each agency—with a common preamble. The revised interim rules became effective on April 30, 2015, so that interested parties and the agencies more immediately could avail themselves of the improvements made to the procedures. At the same time, the Departments requested public comment on additional ways the rules could be improved.

The Departments have reviewed the public comments received on the revised interim rules, and are providing responses to the public comments and further analysis and clarification. The Departments have determined that no changes to existing regulations are warranted in the Final Rules.

II. Background A. Interim Final Rules

On November 17, 2005, at 70 FR 69804, the Departments jointly published interim final rules implementing section 241 of the Energy Policy Act of 2005 (EPAct), Public Law 109-58. Section 241 of EPAct amended FPA sections 4(e) and 18, 16 U.S.C. 797(e), 811, to provide that any party to a license proceeding before FERC is entitled to a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, of any disputed issues of material fact with respect to mandatory conditions or prescriptions developed by one or more of the three Departments for inclusion in a hydropower license. EPAct section 241 also added a new FPA section 33, 16 U.S.C. 823d, allowing any party to the license proceeding to propose an alternative condition or prescription, and specifying the consideration that the Departments must give to such alternatives.

The interim final rules were made immediately effective, but a 60-day comment period was provided for the public to suggest changes to the interim regulations. The Departments stated in the preamble that based on the comments received and the initial results of implementation, they would consider publication of revised final rules.

B. Request for Additional Comment Period

In July 2009, the Hydropower Reform Coalition (HRC) and the National Hydropower Association (NHA) sent a joint letter to the three Departments, asking that an additional 60-day comment period be provided before publication of final rules. The organizations noted that they and their members had gained extensive experience with the interim final rules since their initial comments were submitted in January 2006, and they now have additional comments to offer on ways to improve the trial-type hearing and alternatives processes. The Departments granted NHA and HRC's request. Instead of publishing final rules, the Departments published revised interim rules, effective on April 30, 2015, with a 60-day comment period.

C. Revised Interim Rules

On March 31, 2015, the Departments jointly published revised interim rules implementing EPAct section 241. 80 FR 17156. The rules and preamble addressed a few issues that remained open in the 2005 rulemaking, such as who has the burden of proof in a trial-type hearing and whether a trial-type hearing is an administrative remedy that a party must exhaust before challenging conditions or prescriptions in court. Additionally, the revised interim rules clarified the availability of the trial-type hearing and alternatives processes in the situation where a Department exercises previously reserved authority to include conditions or prescriptions in a hydropower license.

The revised interim rules went into effect on April 30, 2015, but a 60-day comment period was provided for the public to suggest changes to the revised interim regulations.

D. Comments Received

The Departments received comments on the revised interim rules from Exelon Generation Company, LLC (“Exelon”) and comments submitted jointly by the National Hydropower Association, American Public Power Association, Edison Electric Institute, and Public Utility District no. 1 of Snohomish County, Washington (“Industry Commenters”). Responses to these comments are provided below. The Departments also received a comment that is not relevant to this rulemaking and therefore does not necessitate a response. The reader may wish to consult the section-by-section analysis in the revised interim rules for additional explanation of all the regulations.

Burden of Proof

The Industry Commenters strongly disagree with the Departments' decision in the revised interim final rule to assign the burden of proof to the party requesting a hearing. See 7 CFR 1.657(a), 43 CFR 45.57(a), and 50 CFR 221.57(a). They assert that the burden of persuasion should be assigned, in accordance with § 7(d) of the Administrative Procedure Act (APA), 5 U.S.C. 556(d), to the party that is “the proponent of [the] rule or order,” and that the burden should be assigned to the Departments because they are the proponents of their mandatory conditions or prescriptions which they seek to attach to a licensing order as well as the alleged facts supporting those conditions or prescriptions. The Departments received these comments on the interim final rule and explained the Departments' rationale for disagreeing with the comment in the revised interim rules. 80 FR 17170-17171. For the reasons explained in the revised interim rules, the Departments do not agree with the comment and no changes to the regulations are required.

The Industry Commenters cite Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984), in support of the assertion that the Departments are the proponents. In that case the Supreme Court noted that a condition or prescription must be supported by evidence provided by the conditioning agency (or other interested parties). Id. at 777 nn.17, 20. The Industry Commenters assert that this is consistent with the APA requirement that the proponent of an order “has the burden of proof.” However, the Escondido case dealt with an appeal from a U.S. court of appeals' decision that § 4(e) of the FPA required FERC to accept without modification any license conditions recommended by the Secretary of the Interior. As noted by the Supreme Court, FERC's orders, including licenses, are reviewable by a U.S. court of appeals under 18 U.S.C. 825l(b), and the court of appeals, and not FERC, has exclusive authority to determine the validity of a condition or prescription in a license. 466 U.S. at 777 and 777 nn. 19, 21. Because conditions and prescriptions, and whether they are supported by substantial evidence, are only reviewable under § 825l(b), the conditions or prescriptions themselves are not the subject “orders” of the trial-type hearing. Rather, the subject of the hearing is the hearing requester's claim that the correct facts are different than the Department's factual basis for the conditions or prescriptions.

In a trial-type hearing, the requester seeks a decision from the ALJ upholding its claim and thus is the proponent of the order and bears the burden of persuasion. See Schaffer v. Weast, 546 U.S. 49, 62 (2005). The correctness of this position is strongly buttressed by the fact that the same conclusion was reached by all six independent ALJs who ruled on this issue prior to specifically assigning the burden of proof in the revised interim rules. No changes to the regulations are necessary.

Applicability of Rules on Reopener

The Industry Commenters state that the revised interim rules should, but do not appear to, provide for a trial-type hearing or the submission of alternative conditions or fishway prescriptions (alternatives) when an agency imposes conditions and prescriptions during the licensing proceeding, reserves its right to impose additional or modify existing conditions or prescriptions during the license term, and then exercises that reserved right. The Departments disagree with the commenter's premise that the rules do not provide for a trial type-hearing or the submission of alternatives in such a situation.

The revised interim rules provide that where a Department “has notified or notifies FERC that it is reserving its authority to develop one or more conditions or prescriptions at a later time, the hearing and alternatives processes under this part for such conditions or prescription will be available if and when DOI exercises its authority.” 7 CFR 1.601(c); 15 CFR 221.1(c); 43 CFR 45.1(c). Accordingly, if a Department exercises reserved authority during the license term to impose additional or modified conditions or prescriptions, the hearing and alternatives processes under this part for such conditions or prescriptions will be available.

The Industry Commenters contend that where a Department imposes new or substantially modified conditions or prescriptions under reserved authority during the license term, the Department has an obligation under the license to justify these changes based on a change in facts. This comment pertains to the justification for a Department's exercise of its reserved authority, which is beyond the scope of this rulemaking, and therefore merits no further response.

Improvements to the Hearing Timeline

The revised interim rules extended a few of the deadlines in the 2005 rules, while not adopting some commenters' recommendations that the Departments significantly expand the hearing schedule. The Industry Commenters assert that these extensions do not go far enough because the compressed timeline set out in the rules imposes extreme hardship on the parties and forces parties to limit the scope of their challenges to agency conditions and prescriptions. They contend that EPAct does not require such a condensed schedule.

Specifically, they reiterate two recommendations rejected in the revised interim rules: (1) Extending the deadline for filing trial-type hearing requests and proposed alternative conditions or prescriptions from 30 to 45 days after a Department issues its preliminary conditions or prescriptions; see 7 CFR 1.621(a)(2)(i), 43 CFR 45.21(a)(2)(i), and 50 CFR 221(a)(2)(i), and (2) allowing for consecutive rather than concurrent 90-day hearings when there are two unconsolidated hearing requests pending for the same conditions or prescriptions, thus delaying by 90 days the issuance of a decision by the ALJ for one of the hearings. The Departments continue to reject these recommendations for the reasons stated in the revised interim rules, 80 FR 17164-65, including that adding more time to the hearing process raises a significant potential for delay in license issuance, a result Congress expressly sought to avoid in section 241 of EPAct.

The commenters also recommend a rule amendment to allow for supplementation of the exhibit and witness lists which must be filed with the hearing request. The Departments decline to make such an amendment because supplementation is already allowed. See 7 CFR 1.642(b), 43 CFR 45.42(b), and 50 CFR 221.42(b).

Another commenter recommendation is that the rules should mandate rather than merely allow consolidation of hearing requests with common issues of fact. In fact, the rules do require consolidation for all hearing requests with respect to any conditions from the same Department or any prescriptions from the same Department. See 7 CFR 1.623(c)(1) and (2), 43 CFR 45.23(c)(1) and (2), and 50 CFR 221.23(c)(1) and (2).

Regarding all other situations, certainly consolidation may be appropriate to avoid inconsistent decisions, promote economy of administration, and serve the convenience of the parties. However, especially where the commonality is minimal, allowing the requests to be processed separately may be the most economical and streamlined approach, avoiding complicating one process with the numerous, intricate issues of the other process. Consequently, the Departments decline to accept the recommendation, opting to retain the flexibility to determine the best approach based on the unique circumstances of each situation. See 7 CFR 1.623(c)(3), 43 CFR 45.23(c)(3), and 50 CFR 221.23(c)(3).

Definition of Disputed Issue of Material Fact

In the preamble to the revised interim rules, the Departments offered guidance on the types of issues which constitute disputed issues of material fact and are thus appropriate for resolution in a trial-type hearing, stating that legal or policy issues are not issues of material fact. The Industry Commenters contend that the Departments should revisit their guidance, asserting that the Departments' notion of what is a legal or policy issue is overbroad.

However, the focus of their comments is not on the relevant regulation or guidance, but on the positions taken by the Departments during previous trial-type hearings. They reference several instances in which ALJs disagreed with the Departments' litigation positions regarding what constitutes a disputed issue of material fact. The positions the Departments have taken in trial-type hearings are based on the specific facts and circumstances of the issues before the ALJ. The Departments' litigation positions are not the subject of this rulemaking; therefore, these comments do not necessitate a change to the regulations.

The commenters refer the Departments to the Departments preamble statement in the revised interim rules that “`historical facts' such as whether fish were historically present above a dam `may be resolved based on available evidence and do not involve attempts to predict what may happen in the future.'” 80 FR 17178. The commenters assert that the “Departments' attempt to distinguish between an `historical fact' and matters of `prediction' is a false dichotomy.” The commenters reason:

Whether a condition or prescription will, in practice, have the desired effect or achieve an agency's goals is a factual question, not a policy question. All conditions and prescriptions are attempts to achieve a future result, and thus have predictive elements. Parties often disagree with an agency whether its condition or prescription will achieve that result. An essential and fundamental element of the scientific method is prediction. . . . Scientific prediction is a tool for crafting environmental policies. Any disputed issues of material fact with regard to the science behind proposed conditions or prescriptions are appropriate for determination by the ALJ.

The Departments do not agree that the distinction between historical facts and matters of prediction is a false dichotomy. As explained in the revised interim rules, only disputed issues of material fact are appropriate for resolution in a trial-type hearing.80 FR 17177-17178. While the Departments agree that some predictive elements of a condition or prescription may represent disputed issues of material fact in a particular case, such as whether a prescription will result in the passage of fish, other predictive elements of a condition or prescription may represent legal, policy or non-material issues that are not appropriate for resolution in a trial-type hearing. The Departments continue to believe that only disputed issues of material fact are appropriate for determination by the ALJ.

The Industry Commenters also contend that disputed issues with respect to alternatives considered and rejected by a Department are material facts that should be resolved by the ALJ. They assert that if a Department, in issuing a preliminary condition or prescription, considered and rejected other potential conditions or prescriptions, the scientific justification for why those options were rejected is material.

This contention is responsive to the Departments' position in the revised interim rules that immaterial issues not appropriate for ALJ consideration include those that blur the distinction between the EPAct trial-type hearing process and the separate alternatives process created under new FPA section 33. The Departments' position and reasoning remain unchanged in this regard:

Trial-type hearings are limited to resolving disputed issues of material fact relating to a Department's own preliminary condition or prescription. Where the hearing requester's purpose is to establish facts that may support an alternative proposed under the distinct section 33 process, but that do not otherwise affect the Department's ultimate decision whether to affirm, modify, or withdraw its preliminary prescription or condition, then the issue raised is not “material” to that condition or prescription.

Such matters must be resolved by the relevant Department through the section 33 process, and the ALJ should not make findings that would preempt the Department's review.

80 FR 17178. Prohibition against Forum-shopping: (1) Venue selection, (2) ALJ selection.

The Industry Commenters propose changes to the regulations based on the assumption that the Departments exert undue influence over the selection of a venue for the trial-type hearing and the presiding ALJ. The Departments disagree with this assumption and therefore the proposed changes are unnecessary.

Regarding venue selection, they offer purported examples of undue influence in support of a suggested rule change requiring the ALJ to balance the convenience of the parties. The commenters point to the assignment of an ALJ in the Pacific Northwest for FERC Project No. 2206, which involved a licensee based in Raleigh, North Carolina, with counsel in Birmingham, Alabama. However, that hearing was scheduled to take place in Charlotte, North Carolina, and was settled before a hearing was held.

The commenters also refer to the assignment of an ALJ in Sacramento, California, for FERC Project No. 2082, which involved a licensee based in Portland, Oregon, with counsel in Washington, DC However, the licensee withdrew a motion to hold the hearing in Portland after the overwhelming majority of the parties expressed to the ALJ a preference for a hearing in Sacramento during the prehearing conference. These examples do not demonstrate any undue influence.

Further, the apparent inference that the venue is determined by the location of the ALJ's office is not correct. Nor is it determined solely by balancing the convenience of the parties, as implied by the commenters suggested amendment. As pointed out in the preamble to the revised interim rules:

the ALJ has discretion to manage hearing locations. As the ALJs have done in prior cases, the Departments expect that an ALJ will take into consideration factors such as convenience to the parties and to the ALJ, the location of witnesses, and the availability of adequate hearing facilities when determining the location of a hearing. 80 FR 17170.

The Departments conclude that no change in the rules is needed regarding hearing venue selection.

Regarding the selection of an ALJ, the Industry Commenters assert that a Department “should not be allowed to hand pick a Department ALJ or an ALJ with a track record favorable to the Department.” They identify two potential remedial amendments: (1) Use a lottery system to select an ALJ, or (2) preferably, use FERC ALJs instead of Department ALJs under the assumption that FERC ALJs would be more neutral and have more subject matter expertise.

The Departments disagree with the unsupported assumptions that they are exercising undue influence over the selection of ALJs or that a Department would consider “hand picking” an ALJ to obtain an advantage. In accordance with the mandate of 5 U.S.C. 3105, administrative law judges are assigned to cases in rotation so far as practicable, with due consideration given to the demands of existing caseloads and the case to be assigned.

The Departments also dispute the assertion that FERC ALJs are “more neutral” or have more germane expertise. In fact, the independence of all ALJs is protected and impartiality fostered by laws which, among other things, exempt them from performance ratings, evaluation, and bonuses (see 5 U.S.C. 4301(2)(D), 5 CFR 930.206); vest the Office of Personnel Management rather than the employing agency with authority over the ALJs' compensation and tenure (see 5 U.S.C. 5372, 5 CFR 930.201-930.211); and provide that most disciplinary actions against ALJs may be taken only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for a hearing (see 5 U.S.C. 7521). As for expertise, the Departments' ALJs have considerable experience and expertise evaluating natural resource issues similar to those which typically underlie imposition of a condition or prescription.

Furthermore, the use of FERC ALJs would require the agreement of FERC and possibly a statutory amendment. In sum, the Departments disagree with the premises of the comment regarding the selection of ALJs and conclude that no related change in the rules is necessary or desirable.

Stay of Case for Settlement

The Industry Commenters also assert that the revised interim rules should permit settlement negotiations not only for 120 days before a case is referred to an Administrative Law Judge (ALJ)—as provided in the revised interim rules—but also during the period after the ALJ has issued the decision, yet before issuance of the Department's modified conditions. The Industry Commenters add that settlement discussions should not be prohibited under ex parte principles, considering that settlements ought to be encouraged at all points in a hearing process.

Notwithstanding the Industry Commenters' assertion, the Industry Commenters also offered support for the new 120-day stay period for purposes of facilitating settlement. We agree that both the length of this period and its placement at the pre-referral stage could lead to more settlements and avoid the more formal stages of the hearing process. We also agree with the Industry Commenters that settlements should be permitted whenever reached by parties. Yet here we note that the availability of a stay period is not the only mechanism or incentive by which settlements can be facilitated, and that parties are at liberty to conduct robust and meaningful settlement discussions concurrently with the ongoing hearing process, at any stage in such process. Further, given that Congress established in EPAct a short 90-day time limit for completion of the trial-type hearing to avoid the potential for substantial delay in license issuance, it would be unworkable to provide for any additional amount of time beyond the revised interim rules' 120 day-period for a stay in proceedings in which to pursue a settlement.

Other Minor Modifications 1. Discovery

In the preamble to the revised interim rules, the Departments declined to amend the discovery provisions for the trial-type hearing in response to comments that the rules needlessly limit discovery by requiring authorization from the ALJ or agreement of the parties. The commenters recommended that the Departments adopt the approach of the FERC regulations at 18 CFR 385.402(a) and 385.403(a), which authorize discovery to begin without the need for ALJ involvement unless there are discovery disputes. Industry Commenters have reiterated these comments, further arguing that section 241 of EPAct guarantees the availability of discovery, not that such discovery must be first agreed to by the parties or authorized by the ALJ.

The Departments continue to disagree that the regulations should be changed for the reasons detailed in the preamble to the revised interim rules. See 80 FR 17168-69. In summary, the Departments' rules do allow for rapid initiation of discovery and the criteria for allowing discovery are fairly similar to those utilized by FERC and federal courts. More importantly, discovery limits are necessary in this specialized trial-type hearing context to fit within the expedited time frame mandated by section 241 of EPAct, and wide-ranging discovery should not be necessary, given the typical documentation generated during the license proceeding, including the record supporting the conditions or prescriptions.

Also, the fact that section 241 provides for “the opportunity to undertake discovery” does not guarantee unlimited discovery.

It is fundamental that the scope of discovery is not limitless and is restricted by the concepts of relevancy. United States Lines (S.A.) Inc.—Petition for Declaratory Order Re: The Brazil Agreements, 24 S.R.R. 1387, 1388 (ALJ 1988). See also 4 James W. Moore et al., Moore's Federal Practice, P 26.56[1], at 26-96 (2d ed. 1993).

American President Lines, LTD v Cyprus Mines Corp., 1994 FMC LEXIS 33, *31-32 (Jan. 31, 1994); see also Fed. R. Civ. P. 26(d)(1). Further, as noted by the Supreme Court, even the liberal discovery rules of the Federal Rules of Civil Procedures, are subject to the injunction of Rule 1 that they “be construed to secure the just, speedy, and inexpensive determination of every action.” To this end, the requirements of Rule 26(d)(1) that the material sought in discovery be “relevant” should firmly be applied, and the . . . courts should not neglect their power to restrict discovery where “justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . . ” Rule 26(c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process. Herbert v. Lands, 441 U.S. 153, 177 (1979) (emphasis in original).

The revised interim rules reasonably incorporate similar standards for discovery, see 7 CFR 1.641(b), 43 CFR 45.41(b), and 50 CFR 221.41(b), to be applied by the administrative law judges to secure the just, speedy, and inexpensive determination of each case. The Industry Commenters have not addressed how application of those standards would unduly limit discovery. Because the Departments conclude that the standards are fair and reasonable, no change in the discovery provisions is warranted.

2. Page Limitations

In preamble to the revised interim rules, the Departments declined to extend the page limits for hearing requests in response to comments requesting that the limit for describing each issue of material fact be increased from two pages to five pages and that the limit for each witness identification be increased from one to three pages. The Departments did conclude that the required list of specific citations to supporting information and the list of exhibits need not be included in the page restrictions and amended the rules accordingly. See 7 CFR 1.621(d), 43 CFR 45.21(d), and 50 CFR 221.21(d).

The Industry Commenters renew the same requests without offering any new reasons why the requests should be granted. The Departments continue to believe that the page limits are generally appropriate and provide sufficient space for parties to identify disputed issues, particularly in light of the expedited nature of the proceeding. The Departments further note that they are bound by the same page limits in submitting an answer. See 7 CFR 1.622, 43 CFR 45.22, and 50 CFR 221.22. Therefore, for the reasons stated in the preamble to the revised interim rules, the Departments decline to amend the page limitations.

3. Electronic Filing

In the preamble to the revised interim rules, the Departments rejected commenter suggestions to revise the regulations to allow parties to file documents electronically, using email or FERC's eFiling system. The Departments did agree that, in many circumstances, the electronic transmission of documents is a preferable means of providing documents to another party and revised the rules to allow for electronic service of documents on a party who consents to such service. However, the Departments noted that ALJ offices do not currently have the capacity or resources to accept electronically and print off the large volume of documents typically filed in connection with a trial-type hearing.

The Industry Commenters again suggest that electronic filing should be allowed at the ALJ's discretion, citing the example of a Coast Guard ALJ allowing filing by email pursuant to the agreement of the parties at a prehearing conference addressing a trial-type hearing request. For the reasons discussed in the revised interim rules, the Departments decline to adopt regulations that permit filing by email with the ALJ offices. 80 FR 17161-17612. Email is not a substitute for a dedicated electronic filing system in which administrative, information technology, and policy issues such as document management, storage, security, and access can be systematically addressed. Because none of the ALJ Offices have a dedicated system, the Departments will not authorize filing by electronic means.

Equal Consideration Statements

The Industry Commenters request that the Departments revisit their interpretation of section 33 of the Federal Power Act (FPA section 33) as described in the revised interim rules. 80 FR 17176-17177. In the revised interim rules, the Departments interpreted FPA section 33 to require a Department to prepare an equal consideration statement only when a party has submitted an alternative condition or prescription.

The commenters state that the Departments' interpretation is contrary to the plain language of section 33(a)(4) and (b)(4), which they suggest should be read to require that a Department prepare an equal consideration statement whenever a Department submits any condition or prescription, regardless of whether a party submits an alternative. The commenters assert that the Departments' contextual analysis of FPA section 33, as described in the revised interim rules, is flawed because FPA section 33 unambiguously supports the commenters' interpretation. The Departments disagree with this comment.

As the Departments explained in the revised interim rules, the requirement that the Departments prepare an equal consideration statement must be read in the context of the overall statutory scheme. 80 FR 17177. Section 33 of the FPA is titled “Alternative Conditions and Prescriptions,” and it sets forth a series of sequential steps for considering an alternative and reaching a final determination. Section 33(a)(l) permits any party to a hydropower license proceeding to propose an alternative condition. Under section 33(a)(2), the Secretary must accept an alternative if it “(A) provides for the adequate protection and utilization of the reservation; and (B) will either, as compared to the condition initially [deemed necessary] by the Secretary[,] (i) cost significantly less to implement; or (ii) result in improved operation of the project works for electricity production.” 16 U.S.C. 823d(a)(2). When evaluating an alternative, section 33(a)(3) directs the Secretary to consider evidence otherwise available concerning “the implementation costs or operational impacts for electricity production of a proposed alternative.” The Departments continue to believe that a contextual analysis of FPA section 33 demonstrates that section 33 requires the preparation of an equal consideration statement only when a party submits an alternative condition or prescription. No changes to the regulations are needed in response to the comment.

The commenters also disagree with the Departments' perspective, as explained in the revised interim rules, that in the absence of an alternative the Departments will generally lack sufficient information to provide a meaningful equal consideration analysis of the factors required by FPA section 33(a)(4) and (b)(4). The commenters state that ample information is available to the Departments in the licensing application at the time the Departments adopt a condition or prescription, regardless of whether any alternatives were proposed under FPA section 33. The commenters observe that “[w]ithout this information, the Departments presumably would not have sufficient information to draft meaningful preliminary conditions and prescriptions.”

The Departments note FPA sections 4(e) and 18, which authorize the Departments to issue conditions and prescriptions, do not require the Departments to consider certain types of information otherwise required by FPA section 33 when evaluating alternatives, such as “the implementation costs or operational impacts for electricity production of a proposed alternative.” 16 U.S.C. 823d(a)(3). Accordingly, the Departments generally lack related information until such time that the Departments evaluate an alternative and prepare an equal consideration statement, which occurs after the Departments prepare preliminary conditions and prescriptions.

When preparing an equal consideration statement, the Departments must evaluate “such information as may be available to the Secretary, including information voluntarily provided in a timely manner by the applicant and other parties.” 16 U.S.C. 823d(a)(4) and (b)(4). The revised interim rules require a proponent of an alternative to submit information necessary to evaluate the alternative and prepare an equal consideration statement pursuant to FPA section 33. While such information may or may not be available in licensing applications prepared for FERC, the Departments will generally lack sufficient information to provide a meaningful equal consideration pursuant to FPA section 33 until such time as the proponent of an alternative submits the information with an explanation of how the alternative meets the criteria set forth in FPA section 33. No changes to the regulations are needed in response to the comment.

Hearings on Modified Conditions and Prescriptions

Commenters request that the Departments address perceived loopholes in the revised interim rules that would allow the Departments to avoid trial-type hearings in three scenarios. The commenters state that the interim final rules were silent as to whether a right to a trial-type hearing exists in situations where (1) the Department issues no preliminary conditions or prescriptions, but reserves the right to submit mandatory conditions or prescriptions later in the licensing process; (2) the Department adds conditions or prescriptions that were not included with its preliminary conditions or prescriptions; or (3) the Department's modified conditions or prescriptions include factual issues or justifications that were not presented with its preliminary conditions or prescriptions. The commenters write that the revised interim rules addresses the second scenario by handling it on a case-by-case basis, but do not address the first and third scenarios. The Departments believe that the revised interim rules address all three of these scenarios and no changes to the regulations are needed. The Departments again note that in several instances, the commenters discuss specific licensing proceedings. As stated above, such proceedings are not the subject of the rulemaking and therefore, the comments about them do not necessitate a change to the regulations.

The revised interim rules address the commenters' first scenario, in which a Department issues no preliminary conditions or prescriptions, but reserves a right to submit conditions and prescriptions later in the licensing process. The Departments received comments on the interim final rules that requested the availability of a trial-type hearing when a Department reserves its authority to include conditions or prescriptions in a license. The Department responded to this comment by stating that “under EPAct, it is only when a Department affirmatively exercises its discretion to mandate a condition or prescription that the hearing and alternatives processes are triggered. Allowing for trial-type hearings and alternatives when the agencies have not exercised this authority would be both inconsistent with the legislation and an inefficient use of the Departments' resources. Consequently, these final rules continue to provide that the hearing and alternatives processes are available only when a Department submits a preliminary condition or prescription to FERC, either during the initial licensing proceeding or subsequently through the exercise of reserved authority.” 80 FR 17159. Thus, the revised interim rules addressed the commenters' first scenario by providing a right to a trial-type hearing only when a Department submits a preliminary condition or prescription to FERC during the initial licensing proceeding, or when a Department submits a condition or prescription to FERC through the exercise of reserved authority after FERC has issued a license.

In discussing their first scenario, the commenters' language suggests that they may not be concerned about a Department's reservation of authority to submit conditions or prescriptions, but instead may actually be concerned with the availability of a trial-type hearing when a Department issues no preliminary conditions or prescriptions, but submits conditions and prescriptions outside of the timeframe contemplated in FERC's regulations for filing preliminary conditions or prescriptions, which is “no later than 60 days after the notice of acceptance and ready for environmental analysis.” 18 CFR 5.23(a). See also 18 CFR 4.34(b). The Departments note that in this scenario, the Departments would not be exercising reserved authority to submit preliminary conditions or prescriptions because, as long as a licensing proceeding is pending, a Department has authority to submit conditions and prescriptions without the need to “reserve” its authority. A reservation of authority is only necessary for submission of conditions or prescriptions after FERC has issued a license.

The revised interim rules, when addressing whether a trial-type hearing should be held to address disputed issues of fact at the preliminary or modified condition/prescription stage, impliedly addressed the scenario where the Departments submit conditions and prescriptions outside of the timeframe for doing so in FERC's regulations. The Departments explained the circumstances under which a Department may submit a preliminary condition or prescription later in the licensing process and that the availability of the trial-type hearing process would be decided on a case-by-case basis: “[E]xceptional circumstances may arise where facts not in existence and not anticipated at an earlier stage necessitate a new preliminary condition or prescription. This circumstance would be handled on a case-by-case basis, in coordination with FERC as necessary.” 80 FR 17164. The Departments have continued to apply this rationale and process in the final rules.

With respect to the third scenario, the Departments received similar comments on the interim final rule that requested “the regulations provide for trial type hearings at the modified stage if the modifications are based on new facts that did not exist or were not anticipated at the preliminary stage, or if the agency submits an entirely new condition or prescription at the modified stage.” 80 FR 17163. The Departments responded by stating that the revised interim rules “continue the approach taken in the interim regulations of scheduling the trial-type hearing process immediately following the issuance of preliminary conditions and prescription.” 80 FR 17164. The Departments reasoned that this approach allows trial-type hearings to occur during FERC's licensing time frame as required by Congress, that it promotes efficiency, and that providing for trial-type hearings at the modified stage is not a reasonable or efficient use of resources. 80 FR 17163-17164. The Departments maintain this rationale in the final rules.

Industry commenters state that any final rules must provide a remedy for licensees who object to new conditions and prescriptions imposed at the modified stage, or when the Department's modified conditions or prescriptions include factual issues or justifications that were not presented with its preliminary conditions or prescriptions. The commenters also state that the final rules must provide a standard for when a modified condition or prescription would trigger the right to a trial-type hearing. The Departments disagree with these comments. For the reasons discussed above and in the revised interim rules, the Departments will continue their approach of scheduling the trial-type hearing process immediately following the issuance of preliminary conditions and prescriptions. The Departments again acknowledge “that exceptional circumstances may arise where facts not in existence and not anticipated at an earlier stage necessitate a new preliminary condition or prescription. This circumstance would be handled on a case-by-case basis, in coordination with FERC as necessary.” 80 FR 17164. No changes to the regulations are needed in response to these comments.

Submissions and Acceptance of Alternatives

The Industry Commenters believe the Departments are not complying with the requirements of FPA section 33 to accept a proposed alternative if the alternative: “(A) provides for the adequate protection and utilization of the reservation; and (B) will either, as compared to the condition initially proposed by the Secretary—(i) cost significantly less to implement; or (ii) result in improved operation of the project works for electricity production.” 16 U.S.C. 823(a)(2). The Departments disagree with this comment. Notwithstanding this comment, the Industry Commenters do not provide proposed revisions, and the Departments do not believe any changes to the regulations are necessary.

The Industry Commenters also “commend” the revised interim rules for adding a new change to allow for a revised alternative within 20 days of an ALJ decision, but express the view that this time period is still “unnecessarily short,” given an ALJ opinion's typical length and underlying complexity. The commenters compare this timeframe to the 60-day timeframe in which the Departments may revise conditions and prescriptions, and suggest that the deadline for a revised alternative be, similarly, 60 days.

In response, the Departments note that the FPA specifically provides that the Departments will evaluate alternatives “based on such information as may be available to the [Departments], including information voluntarily provided in a timely manner by the applicant and others.” 16 U.S.C. 823d(a)(4), (b)(4) (emphasis added). To achieve a proper balance between the Congressional mandate to consider evidence otherwise available to DOI, including information timely submitted, and Congressional intent to avoid delays in the FERC licensing process, the Departments established a 20-day period for submittal of revised alternatives.

Exelon submitted comments concerning 43 CFR 45.74(c), which generally provides that DOI will consider information regarding alternatives provided by the deadline for filing comments on FERC's National Environmental Policy Act (NEPA) document. This provision states that “[f]or purposes of paragraphs (a) and (b) of this section, DOI will consider evidence and supporting material provided by any license party by the deadline for filing comments on FERC's NEPA document under 18 CFR 5.25(c).” 43 CFR 45.74(c). Paragraph (a) in 43 CFR 45.74 specifies the evidence and supporting material DOI must consider when deciding whether to accept an alternative. Paragraph (b) in 43 CFR 45.74 identifies the criteria DOI must use to evaluate whether to accept an alternative. Paragraph (c) in 18 CFR 5.25 identifies which FERC hydropower license applications require FERC to issue a draft NEPA document. As discussed below in more detail, the provision's scope is limited to license applications under FERC's Integrated License Application Process, as opposed to proposed amendments to existing licenses.

Exelon interpreted 43 CFR 45.74(c) as establishing a strict deadline for submittal of information regarding a proposed alternative. The commenter noted that the subsequent finalization of any conditions or prescriptions may occur much later than this deadline, sometimes because of pending applications for water quality certifications (required under section 401 of the Clean Water Act). Exelon expressed concern that a potentially substantial time gap between the NEPA comment deadline and finalization of a prescription or condition could result in the exclusion of the best and most current scientific research to inform DOI's evaluation of alternative prescriptions and conditions.

DOI does not believe that 43 CFR 45.74(c) will result in the exclusion of the best and most current scientific research to inform the Department's evaluation of alternative conditions and fishway prescriptions. DOI believes that considering information regarding alternatives submitted by any license party by the close of the FERC NEPA comment period will provide the Departments with all reasonably available information to evaluate an alternative condition or fishway prescription in accordance with Section 33 of the Federal Power Act.

Furthermore, as noted in the interim final rule, “[g]iven the complexity of the issues and the volume of material to be analyzed in the typical case, the Departments cannot reasonably be expected to continue to accept and incorporate new information right up until the FERC filing deadline for modified conditions and prescriptions.” 80 FR 17156, 17176. Nevertheless, the language of 43 CFR 45.74(c) only sets forth the requirement that DOI must consider pre-deadline submittals, and thus it does not preclude DOI from considering, in exceptional circumstances, evidence and supporting material submitted after the deadline.

It is not unusual for a license applicant to have authorization petitions pending at the time a Department considers an alternative. These types of pending petitions include, but are not limited to, applications for a Clean Water Act section 401 water quality certification.

As a practical matter, the parties and stakeholders share an interest in the timely submittal of evidence and supporting materials in order to ensure a robust alternatives process and avoid delays during FERC's licensing proceedings. The timely submittal of evidence under 43 CFR 45.74(c) also reflects a statutory process that prescribes specific timeframes. The EPAct avoids delay by requiring the hearing process to be completed in a 90-day timeframe and “within the time frame established by [FERC] for each license proceeding.” As noted in the revised interim rules, the hearing process was crafted to work within FERC's licensing timeframes. 80 FR 17156, 17163 (Mar. 31, 2015). The process for submitting, evaluating, and adopting alternatives was similarly drafted with the timeframes in mind.

Under FERC's rules, modified conditions and prescriptions, including any adopted alternatives, must be filed within 60 days after the close of FERC's NEPA comment period. 18 CFR 5.25(d). The timely submission of information under 43 CFR 45.74(c) is necessary so DOI has adequate time to consider the information and file modified conditions and prescriptions 60 days after the close of FERC's NEPA comment period.

Additionally, the FPA specifically provides that the Departments will evaluate alternatives “based on such information as may be available to the [Departments], including information voluntarily provided in a timely manner by the applicant and others.” 16 U.S.C. 823d(a)(4), (b)(4) (emphasis added). DOI believes that 43 CFR 45.74(c) achieves the proper balance between the Congressional mandate to consider evidence otherwise available to DOI, including information timely submitted, and Congressional intent to avoid delays in the FERC licensing process.

Exelon also expressed concern that in instances where DOI exercises its reserved authority to include a condition or prescription in a license that FERC has previously issued, the language in 43 CFR 45.74(c), that the DOI “will consider” information submitted prior to the NEPA comment deadline, could potentially preclude the introduction of additional relevant and supporting information that was not submitted during the license-application-related NEPA process. As discussed above, the language of 43 CFR 45.74(c) only sets forth the requirement that DOI must consider pre-deadline submittals. Thus, it does not preclude DOI from considering evidence and supporting material submitted after the deadline in cases where FERC has issued a license and a Department exercises reserved authority. Therefore, notwithstanding Exelon's concern, paragraph (c) of 43 CFR 45.74 does not preclude the introduction of relevant information that would support a proposed alternative condition or prescription after DOI exercises its reserved authority to include a condition or fishway prescription in a FERC license.

VI. Consultation With FERC

Pursuant to EPAct's requirement that the agencies promulgate rules implementing EPAct section 241 “in consultation with the Federal Energy Regulatory Commission,” the agencies have consulted with FERC regarding the content of the revised interim rules. After considering post-promulgation comments, no changes were made to the revised interim final regulations in the final rules.

VII. Conclusion

These final rules have been determined to be not significant for purposes of Executive Order 12866.

OMB has reviewed the information collection in these rules and approved an extension without change of a currently approved collection under OMB control number 1094-0001. This approval expires November 30, 2018.

The Departments have reviewed the comments received in response to the revised interim rules and have determined that no change to the rules is necessary.

Accordingly, the interim rules amending 6 CFR part 1, 43 CFR part 45, and 50 CFR part 221, which were published at 80 FR 17155 on March 31, 2015, are adopted as final without change.

Dated: October 6, 2016. Robert F. Bonnie, Undersecretary—Natural Resources and Environment, U.S. Department of Agriculture. Dated: September 22, 2016. Kristen J. Sarri, Principal Deputy Assistant Secretary—Policy, Management and Budget, U.S. Department of the Interior. Dated: October 31, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
[FR Doc. 2016-28063 Filed 11-22-16; 8:45 am] BILLING CODE 3411-15-P; 4310-79-P; 3510-22-P
DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation 7 CFR Part 457 [Docket No. FCIC-16-0003] RIN 0563-AC52 Common Crop Insurance Regulations, Various Crop Provisions AGENCY:

Federal Crop Insurance Corporation, USDA.

ACTION:

Final rule with request for comments.

SUMMARY:

The Federal Crop Insurance Corporation (FCIC) amends the Small Grains Crop Insurance Provisions, Cotton Crop Insurance Provisions, Extra Long Staple Cotton Crop Insurance Provisions, Sunflower Seed Crop Insurance Provisions, Sugar Beet Crop Insurance Provisions, Hybrid Sorghum Seed Crop Insurance Provisions, Coarse Grains Crop Insurance Provisions, Safflower Crop Insurance Provisions, Popcorn Crop Insurance Provisions, Peanut Crop Insurance Provisions, Onion Crop Insurance Provisions, Tobacco Crop Insurance Provisions, Green Pea Crop Insurance Provisions, Dry Pea Crop Insurance Provisions, Rice Crop Insurance Provisions, Northern Potato Crop Insurance Provisions, Central and Southern Potato Crop Insurance Provisions, Dry Bean Crop Insurance Provisions, Hybrid Seed Corn Crop Insurance Provisions, Processing Sweet Corn Crop Provisions, Processing Bean Crop Insurance Provisions, Canola and Rapeseed Crop Insurance Provisions, Millet Crop Insurance Provisions, and Mustard Crop Insurance Provisions. The purpose of this final rule with comment is to update prevented planting coverage levels through the actuarial documents to improve actuarial considerations and coverage offered, program integrity, and to reduce vulnerability to program fraud, waste, and abuse. The changes to the Crop Provisions made in this rule are applicable for the 2017 and succeeding crop years for all crops with a 2017 contract change date on or after the effective date of the rule, and for the 2018 and succeeding crop years for all crops with a 2017 contract change date prior to the effective date of the rule.

DATES:

This rule is effective November 23, 2016 However, FCIC will accept written comments on this final rule until close of business January 23, 2017. FCIC may consider the comments received and may conduct additional rulemaking based on the comments.

ADDRESSES:

FCIC prefers interested persons submit their comments electronically through the Federal eRulemaking Portal. Interested persons may submit comments, identified by Docket ID No. FCIC-16-0003, by any of the following methods:

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

Mail: Director, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, P.O. Box 419205, Kansas City, MO 64133-6205.

FCIC will post all comments received, including those received by mail, without change to http://www.regulations.gov, including any personal information provided. Once these comments are posted to this Web site, the public can access all comments at its convenience from this Web site. All comments must include the agency name and docket number or Regulatory Information Number (RIN) for this rule. For detailed instructions on submitting comments and additional information, see http://www.regulations.gov. If interested persons are submitting comments electronically through the Federal eRulemaking Portal and want to attach a document, FCIC requests that the document attachment be in a text-based format. If interested persons want to attach a document that is a scanned Adobe PDF file, it must be scanned as text and not as an image, thus allowing FCIC to search and copy certain portions of the submissions. For questions regarding attaching a document that is a scanned Adobe PDF file, please contact the Risk Management Agency (RMA) Web Content Team at (816) 823-4694 or by email at [email protected]

Privacy Act: Anyone is able to search the electronic form of all comments received for any dockets by the name of the person submitting the comment (or signing the comment, if submitted on behalf of an entity, such as an association, business, labor union, etc.). Interested persons may review the complete User Notice and Privacy Notice for Regulations.gov at http://www.regulations.gov/#!privacyNotice.

FOR FURTHER INFORMATION CONTACT:

Tim Hoffmann, Director, Product Management, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, Beacon Facility, Stop 0812, Room 421, P.O. Box 419205, Kansas City, MO 64141-6205, telephone (816) 926-7730.

SUPPLEMENTARY INFORMATION: Background

Prior to the FCIC offering coverage for prevented planting, prevented planting payments were linked to USDA program provisions such as the farmer's program yield and the target price. Adjustments to the Federal Crop Insurance Act (Act) from the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 mandated that coverage for prevented planting be a part of crop insurance policies offered under the Federal crop insurance program, as appropriate. Following these changes to the Act, FCIC incorporated preventing planting provisions into the Common Crop Insurance Basic Provisions. A 1996 study by USDA's Economic Research Service (ERS) established the basis for the original prevented planting coverage levels. The study and estimated pre-planting costs were reviewed again by ERS in 2002, and FCIC adjusted prevented planting coverage levels accordingly.

Further, the Office of Inspector General for Audit (OIG) conducted an audit on the Federal crop insurance prevented planting program for 2011-2012 and recommended RMA obtain updated pre-planting cost information, and reevaluate the current prevented planting coverage levels making adjustments consistent with the pre-planting costs for each crop.

FCIC contracted to review the prevented planting policy and determine appropriate pre-planting costs to be covered, evaluate the reasonableness of current prevented planting payments by crop and region, examine alternative methods and approaches to the program, provide alternative payment amounts as appropriate, and develop a plan for routinely updating those amounts. For some crops or crops in certain regions, the contractor suggested FCIC raise or lower the current prevented planting coverage levels. RMA shared this study with stakeholders to determine if the recommendations made sense to growers. This final rule with comment makes changes to allow for revisions to the prevented planting coverage levels, based on the contractor's findings and report, stakeholder comments in response to the contractors report, and FCIC's re-examination of the evaluation and those stakeholder comments received. This rule allows for any new percentages of prevented planting coverage that FCIC determines provides adequate protection for those costs incurred even though the crop was prevented from planting to be specified in the actuarial documents and removes them from the Crop Provisions. The rule also leaves the option for additional prevented planting coverage if offered in the actuarial documents. This will allow FCIC to expedite its update of the percentages in response to changing production conditions.

Effective Date

FCIC is exempt from all requirements in the administrative procedure provisions in 5 U.S.C. 553, which includes the 30-day effective date. This rule allows FCIC to make the changes to the Crop Provisions in time for 2017 spring planted crops. Therefore, this final rule is effective when published in the Federal Register.

Executive Order 12866

This rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, it has not been reviewed by the Office of Management and Budget (OMB).

Paperwork Reduction Act of 1995

Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control numbers 0563-0085, 0563-0083, and 0563-0053.

E-Government Act Compliance

FCIC is committed to complying with the E-Government Act of 2002, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

Executive Order 13132

It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Federal Crop Insurance Corporation has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, the Federal Crop Insurance Corporation will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

Regulatory Flexibility Act

FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the amount of an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act (Act) authorizes FCIC to waive collection of administrative fees from beginning farmers or ranchers and limited resource farmers. FCIC believes this waiver helps to ensure that small entities are given the same opportunities as large entities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605).

Federal Assistance Program

This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.

Executive Order 12372

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.

Executive Order 12988

This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought.

Environmental Evaluation

This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

FCIC is issuing this final rule without opportunity for prior notice and comment. The Administrative Procedure Act exempts rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” from the statutory requirement for prior notice and opportunity for public comment (5 U.S.C. 553(a)(2)). However, FCIC is providing a 60-day comment period and invites interested persons to participate in this rulemaking by submitting written comments. FCIC will consider the comments received and may conduct additional rulemaking based on the comments.

List of Subjects in 7 CFR Part 457

Crop insurance, Reporting and recordkeeping requirements.

Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation amends 7 CFR part 457 as follows:

PART 457—COMMON CROP INSURANCE REGULATIONS 1. The authority citation for part 457 continues to read as follows: Authority:

7 U.S.C. 1506(1), 1506(o).

2. Amend § 457.101 as follows: a. Revise the section heading; b. Revise the first sentence of the introductory text; and c. Revise section 13.

The revisions read as follows:

§ 457.101 Small grains crop insurance provisions.

The Small Grains Crop Insurance Provisions for the 2017 and succeeding crop years in counties with a contract change date of November 30, and for the 2018 and succeeding crop years in counties with a contract change date of June 30, are as follows:

13. Prevented Planting

In counties for which the Special Provisions designate a spring final planting date, your prevented planting production guarantee will be based on your approved yield for spring-planted acreage of the insured crop. Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

3. Amend § 457.104 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 11(b).

The revisions read as follows:

§ 457.104 Cotton crop insurance provisions.

The Cotton Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

11. Prevented Planting

(b) Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

4. Amend § 457.105 as follows: a. Revise the first sentence of the introductory text; b. Amend section 3 to remove the phrase “(December 17 for the 1998 crop year only)”; and c. Revise section 12(b).

The revisions read as follows:

§ 457.105 Extra long staple cotton crop insurance provisions.

The Extra Long Staple Cotton Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

12. Prevented Planting

(b) Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

5. Amend § 457.108 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 12.

The revisions read as follows:

§ 457.108 Sunflower seed crop insurance provisions.

The Sunflower Seed Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

12. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

6. Amend § 457.109 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 15(b).

The revisions read as follows:

§ 457.109 Sugar Beet Crop Insurance Provisions.

The Sugar Beet Crop Insurance Provisions for the 2017 and succeeding crop years in counties with a contract change date of November 30, and for the 2018 and succeeding crop years in counties with a contract change date of April 30, are as follows:

15. Prevented Planting

(b) Except in those counties indicated in section 15(a), your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

7. Amend § 457.112 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 13.

The revisions read as follows:

§ 457.112 Hybrid sorghum seed crop insurance provisions.

The Hybrid Sorghum Seed Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

13. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your amount of insurance for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

8. Amend § 457.113 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 12.

The revisions read as follows:

§ 457.113 Coarse grains crop insurance provisions.

The Coarse Grains Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

12. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

9. Amend § 457.125 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 12.

The revisions read as follows:

§ 457.125 Safflower crop insurance provisions.

The Safflower Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

12. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

10. Amend § 457.126 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 15.

The revisions read as follows:

§ 457.126 Popcorn crop insurance provisions.

The Popcorn Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

15. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

11. Amend § 457.134 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 15(a).

The revisions read as follows:

§ 457.134 Peanut crop insurance provisions.

The Peanut Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

15. Prevented Planting

(a) Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

12. Amend § 457.135 as follows a. Revise the first sentence of the introductory text; and b. Revise section 15.

The revisions read as follows:

§ 457.135 Onion crop insurance provisions.

The Onion Crop Insurance Provisions for the 2017 and succeeding crop years in counties with a contract change date of November 30, and for the 2018 and succeeding crop years in counties with a contract change date of June 30, are as follows:

15. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your final stage production guarantee for timely planted acreage. Additional prevented planting coverage levels are not available for onions.

13. Amend § 457.136 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 14.

The revisions read as follows:

§ 457.136 Tobacco crop insurance provisions.

The Tobacco Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

14. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. Additional prevented planting coverage levels are not available for tobacco.

14. Amend § 457.137 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 14.

The revisions read as follows:

§ 457.137 Green pea crop insurance provisions.

The Green Pea Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

14. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

15. Amend § 457.140 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 14.

The revisions read as follows:

§ 457.140 Dry pea crop insurance provisions.

The Dry Pea Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

14. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

16. Amend § 457.141 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 13.

The revisions read as follows:

§ 457.141 Rice crop insurance provisions.

The Rice Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

13. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

17. Amend § 457.142 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 12.

The revisions read as follows:

§ 457.142 Northern potato crop insurance provisions.

The Northern Potato Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

12. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

18. Amend § 457.147 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 13.

The revisions read as follows:

§ 457.147 Central and Southern potato crop insurance provisions.

The Central and Southern Potato Crop Insurance Provisions for the 2017 and succeeding crop years in counties with a contract change date of November 30, and for the 2018 and succeeding crop years in counties with a contract change date of June 30 and September 30, are as follows:

13. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

19. Amend § 457.150 as follows: a. Revise the first sentence of the introductory text; b. Amend section 4 to remove the phrase “(December 17 for the 1998 crop year only)”; and c. Revise section 14.

The revisions read as follows:

§ 457.150 Dry bean crop insurance provisions.

The Dry Bean Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

14. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

20. Amend § 457.152 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 13.

The revisions read as follows:

§ 457.152 Hybrid seed corn crop insurance provisions.

The Hybrid Seed Corn Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

13. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your amount of insurance for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

21. Amend § 457.154 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 14.

The revisions read as follows:

§ 457.154 Processing sweet corn crop insurance provisions.

The Processing Sweet Corn Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

14. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

22. Amend § 457.155 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 14.

The revisions read as follows:

§ 457.155 Processing bean crop insurance provisions.

The Processing Bean Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

14. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

23. Amend § 457.161 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 14.

The revisions read as follows:

§ 457.161 Canola and rapeseed crop insurance provisions.

The Canola and Rapeseed Crop Insurance Provisions for the 2017 and succeeding crop years in counties with a contract change date of November 30, and for the 2018 and succeeding crop years in counties with a contract change date of June 30, are as follows:

14. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

24. Amend § 457.165 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 12.

The revisions read as follows:

§ 457.165 Millet crop insurance provisions.

The Millet Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

12. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

25. Amend § 457.168 as follows: a. Revise the first sentence of the introductory text; and b. Revise section 15.

The revisions read as follows:

§ 457.168 Mustard crop insurance provisions.

The Mustard Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:

15. Prevented Planting

Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. When a portion of the insurable acreage within the unit is prevented from being planted, and there is more than one base contract price applicable to acreage in the unit, the lowest base contract price will be used in calculating any prevented planting payment. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.

Dated: November 10, 2016. Brandon Willis, Manager, Federal Crop Insurance Corporation.
[FR Doc. 2016-27720 Filed 11-22-16; 8:45 am] BILLING CODE 3410-08-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 989 and 999 [Doc. No. AMS-SC-16-0065; SC16-989-2 FR] Raisins Produced From Grapes Grown in California and Imported Raisins; Removal of Language AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This rule removes language from the California raisin marketing order's minimum grade standards and the import regulations' grade and size requirements. The marketing order regulates the handling of raisins produced from grapes grown in California, and is administered locally by the Raisin Administrative Committee (committee). The change to the import regulations is required under section 8e of the Agricultural Marketing Agreement Act of 1937, as amended. Recently, the U.S. Standards for Grades of Processed Raisins (standards) were amended to remove the word “midget.” This rule makes the marketing order and the import regulations consistent with the amended standards.

DATES:

Effective November 25, 2016.

FOR FURTHER INFORMATION CONTACT:

Maria Stobbe, Marketing Specialist, or Jeffrey Smutny, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: [email protected] or [email protected]

Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Agreement and Order No. 989, both as amended (7 CFR part 989), regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

This rule is also issued under section 8e of the Act, which provides that whenever certain specified commodities, including raisins, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically-produced commodities.

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This rule removes the term “midget” from § 989.702(a) of the order and § 999.300(b)(1) of the import regulations. This will make the order and the import regulations consistent with the recent changes to the standards.

The committee unanimously recommended that the term “midget” be removed from the order at a meeting on June 26, 2014. At a subsequent meeting on August 14, 2014, the committee also unanimously recommended that the word “midget” be removed from the standards. As required under the Act, the import regulations must be consistent with the changes to the order. In this instance, the order must also be consistent with changes to the standards.

Paragraph (a) of section 989.702 of the order specifies minimum grade standards for packed Natural (sun-dried) Seedless (NS) raisins, requiring that “small (midget)” sizes of raisins shall meet U.S. Grade C tolerances with respect to pieces of stem, and underdeveloped and substandard raisins. The word “midget” is redundant with the term “small,” and its removal is insignificant.

Pursuant to the recommendation of the committee and consistent with the recent amendment of the standards, the word “midget” is removed from the order language.

The committee's recommendations to delete the word “midget” from the order and the standards necessitates a corresponding change to the import requirements.

Under the raisin import regulations, in paragraph (b)(1) of section 999.300, raisins imported into the United States are required to meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically-produced commodities, when such commodities are regulated under an order. With the removal of the word “midget” from both the standards and the order, removal of “midget” is required under the import regulations.

Removal of the word “midget” should not impact the application of the order or the import regulations, since the word “midget” is redundant and appears in parentheses after the word “small.” Thus, removing the word “midget” has no effect on interpretation of the order or the import regulations; and, therefore, has no effect on raisin importers.

The final rule removing the word “midget” from the standards was published in the Federal Register on June 23, 2016 (81 FR 40779). Thus, this rule will make the order and the import regulations consistent with the standards, as recently revised.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 3,000 producers of California raisins and approximately 24 handlers subject to regulation under the marketing order. There are approximately 52 importers of raisins as well.

The Small Business Administration defines small agricultural producers as those having annual receipts less than $750,000, and defines small agricultural service firms, such as handlers and importers, as those whose annual receipts are less than $7,500,000. (13 CFR 121.201.)

There are approximately 3,000 California raisin producers and 24 handlers subject to regulation under the marketing order. The Small Business Administration defines small agricultural producers as those having annual receipts less than $750,000, and defines small agricultural service firms, such as handlers and importers, as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

Based on shipment data and other information provided by the committee, most producers and approximately 13 handlers of California raisins may be classified as small entities. This action should not have any impact on handlers' or growers' benefits or costs.

There is very limited information on the 52 importers. This action should not have any impact on importers' costs.

This rule removes the word “midget” from the order regulations in section 989.702(a) and from the import regulations in section 999.300(b)(1), bringing the order and the import regulations into conformance with the recent amendment to the standards.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, “Vegetable and Specialty Crops.” No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either large or small raisin handlers or on raisin importers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Further, the committee's meetings were widely publicized throughout the California raisin industry and all interested persons were invited to attend the meetings and encouraged to participate in committee deliberations on all issues. Like all committee meetings, the June 26, 2014, and August 14, 2014, meetings were public meetings and all entities, both large and small, were encouraged to express their views on this issue.

A proposed rule was published in the Federal Register on September 16, 2016 (81 FR 63723). Copies of the rule were provided to California raisin handlers and committee members. Finally, the rule was made available through the Internet by USDA and the Office of the Federal Register. A 30-day comment period ending October 17, 2016, was provided for interested persons to respond to the proposal. One supportive comment was received. Accordingly, no changes are being made to the rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously-mentioned address in the FOR FURTHER INFORMATION CONTACT section.

In accordance with section 8e of the Act, the United States Trade Representative has concurred with this action.

After consideration of all relevant material presented, including the information and recommendation submitted by the committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because removal of the word “midget” should not impact the application of the order or the import regulations, since the word “midget” is redundant and appears in parentheses after the word “small.” Thus, removing the word “midget” has no effect on interpretation of the order or the import regulations; and, therefore, has no effect on handlers or raisin importers. Further, handlers are aware of this rule, which was recommended at two public meetings. Also, a 30-day comment period was provided for in the proposed rule.

List of Subjects 7 CFR Part 989

Grapes, Marketing agreements, Raisins, Reporting and recordkeeping requirements.

7 CFR Part 999

Dates, Filberts, Food grades and standards, Imports, Nuts, Prunes, Raisins, Reporting and recordkeeping requirements, Walnuts.

For the reasons set forth in the preamble, 7 CFR parts 989 and 999 are amended as follows:

PART 989—RAISINS PRODUCED FROM GRAPES GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 989 continues to read as follows: Authority:

7 U.S.C. 601-674.

§ 989.702 [Amended]
2. Paragraph (a) of § 989.702 is amended by removing “small (midget-sized)” and adding “small sized” in its place. PART 999—SPECIALTY CROPS; IMPORT REGULATIONS 3. The authority citation for 7 CFR part 999 continues to read as follows: Authority:

7 U.S.C. 601-674.

4. Paragraph (b)(1) of § 999.300 is amended by removing ” small (midget) sized” and adding “small sized” in its place. Dated: November 18, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
[FR Doc. 2016-28251 Filed 11-22-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection 8 CFR Parts 103 and 235 [Docket No. USCBP-2013-0029; CBP Decision No. 16-20] RIN 1651-AB01 The U.S. Asia-Pacific Economic Cooperation Business Travel Card Program AGENCY:

U.S. Customs and Border Protection; Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

This rule adopts as final, with two changes, interim amendments to the Department of Homeland Security's (DHS) regulations published in the Federal Register on May 13, 2014 establishing the U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card Program. The U.S. APEC Business Travel Card Program provides qualified U.S. business travelers engaged in business in the APEC region, or U.S. Government officials actively engaged in APEC business, the ability to access fast-track immigration lanes at participating airports in foreign APEC economies.

DATES:

This rule is effective December 23, 2016.

FOR FURTHER INFORMATION CONTACT:

Mr. Garret Conover, Office of Field Operations, (202) 325-4062, [email protected]

I. Background A. The Asia-Pacific Economic Cooperation Business Travel Card Program

The United States is a member of APEC, which is an economic forum comprised of twenty-one members whose primary goal is to support sustainable economic growth and prosperity in the Asia-Pacific region.1 One of APEC's business facilitation initiatives is the APEC Business Travel Card (ABTC) Program. The operating procedures for the ABTC Program are set out in the APEC Business Travel Card Operating Framework (APEC Framework).2 Under the ABTC Program, APEC members can issue cards to business travelers and senior government officials who meet certain criteria. The cards provide simpler, short-term entry procedures within the APEC region.

1 APEC members are also referred to as `economies' since the APEC process is primarily concerned with trade and economic issues with the members engaging each other as economic entities. The most recently updated list of members is available at the APEC Web site at www.apec.org/About-Us/About-APEC/Member-Economies.aspx. For simplicity, CBP will generally refer to them in the preamble of this document as APEC members.

2 Although participating members intend to follow the operating principles and procedures outlined, the document is not legally binding. The most recent version of the APEC Framework is Version 19, dated July 7, 2015.

B. U.S. Participation in ABTC

On November 12, 2011, President Obama signed the Asia-Pacific Economic Cooperation Business Travel Cards Act of 2011 (APEC Act). Public Law 112-54, 125 Stat. 550. The APEC Act authorizes the Secretary of Homeland Security, in coordination with the Secretary of State, to issue ABTCs through September 30, 2018 to any eligible person, including business persons and U.S. Government officials actively engaged in APEC business. On May 13, 2014, U.S. Customs and Border Protection (CBP) published an interim final rule (IFR) in the Federal Register (79 FR 27161) amending the DHS regulations to establish the U.S. ABTC Program and an application fee. See 8 CFR 235.13 and 8 CFR 103.7.

The IFR became effective on June 12, 2014 and on that date CBP began issuing its own ABTCs (U.S. ABTCs) to qualified U.S. citizens. As provided in the IFR, the U.S. ABTC Program is a voluntary program designed to facilitate travel for bona fide U.S. business persons engaged in business in the APEC region and U.S. government officials actively engaged in APEC business within the APEC region. To participate in the program, an individual must be an existing member, in good standing, of an eligible CBP trusted traveler program or be approved for membership in an eligible CBP trusted traveler program during the U.S. ABTC application process.3 The application process requires the applicant to self-certify that he or she is a bona fide business person who is engaged in the trade of goods, the provision of services or the conduct of investment activities, or is a U.S. Government official actively engaged in APEC business. The applicant must also provide a signature, which appears on the face of the U.S. ABTC. CBP collects the applicant's signature at a CBP trusted traveler enrollment center.

3 For purposes of the U.S. ABTC Program, eligible CBP trusted traveler programs include Global Entry, NEXUS, and SENTRI.

Successful applicants receive a U.S. ABTC that enables them to access fast-track immigration lanes at participating airports in foreign APEC member economies. In order to obtain a U.S. ABTC, an individual must meet the eligibility requirements, apply in advance, pay the requisite fee and be approved as a card holder. Details about the program eligibility criteria, the application process, the fee, the benefits, and other aspects of the program, are set forth in the preamble of the IFR, 8 CFR 235.13, and 8 CFR 103.7.

II. Discussion of Comments A. Overview

Although the interim regulatory amendments were promulgated without prior public notice and comment procedures pursuant to the foreign affairs exemption in 5 U.S.C. 553(a)(1), the IFR provided for the submission of public comments that would be considered before adopting the interim regulations as a final rule. The prescribed 30-day public comment period closed on June 12, 2014. During this time, CBP received submissions from five commenters. All five commenters were strongly in support of the U.S. ABTC Program and expressed appreciation for the introduction of the program. Nonetheless, the commenters presented ideas for how to improve the program, and one commenter noted that our calculation of a benefit accrued through the U.S. ABTC was inaccurate. CBP has grouped the issues by topic and provides responses below.

B. Discussion 1. Overseas Interviews and Signature Collection

Comment: All five of the commenters noted that many of the U.S. ABTC applicants will be U.S. business people living and working abroad, who make limited trips to the United States. The commenters asserted that requiring applicants to be physically present in the United States to obtain a U.S. ABTC will reduce the number of applicants and will limit the accessibility of the program. To address these concerns, four of the commenters recommended that CBP conduct enrollment interviews for the CBP trusted traveler programs overseas, and all five of the commenters asked that CBP provide a way for U.S. ABTC signatures to be collected abroad. The commenters suggested several different methods for CBP to conduct enrollment interviews and/or collect signatures overseas, either on a regular basis or intermittently. Their suggestions include having CBP use U.S. embassies or consulates in the Asia-Pacific region, having CBP open a regional office in Asia, or having CBP schedule appointments for interviews and/or signature collections around major U.S. regional business events, such as the annual meeting of the Asia Pacific Council of American Chambers of Commerce. The commenters remarked that conducting enrollment interviews and signature collections overseas would increase the number of applicants for U.S. ABTCs and would allow individuals to obtain a U.S. ABTC more quickly because individuals will not have to wait until they are traveling to the United States to do their interview and provide their signature.

Response: CBP appreciates the commenters' suggestions for alternative arrangements for CBP trusted traveler interviews and ABTC signature collections, but is unable to implement any of them at this time. The personal interview and signature collection process is an integral part of the CBP trusted traveler and U.S. ABTC application processes and these are done at CBP trusted traveler enrollment centers located throughout the United States. CBP does not have the facilities or resources to regularly conduct interviews and collect signatures outside CBP trusted traveler enrollment centers. Furthermore, in order to maintain the integrity of the CBP trusted traveler and ABTC programs, only CBP officers are authorized to conduct interviews, obtain signatures, and approve applications in the Global On-Line Enrollment System (GOES). These functions cannot be delegated to the Department of State or any other entity.

While CBP recognizes that some applicants may find it inconvenient to travel to the continental United States for their CBP trusted traveler program interview and U.S. ABTC signature collection, CBP would like to highlight that there are trusted traveler enrollment centers located in Hawaii and Guam. Furthermore, CBP is encouraged by the fact that there has been a steady stream of applicants thus far, indicating that many people have been able to obtain U.S. ABTCs through the current system. As of December 2015, nearly 21,000 applications have been submitted for the U.S. ABTC Program.4

4 Source: Email correspondence with CBP's Office of Field Operations on February 10, 2016.

2. Appointment Scheduling for Signature Collection

Comment: Two commenters asked CBP to definitively state that an applicant does not need to schedule an appointment for signature collection if the applicant is already a member of a CBP trusted traveler program. Both commenters noted that the FAQs explicitly state that no appointment is necessary while some of the preamble language in the IFR suggests otherwise.

Response: Applicants for the U.S. ABTC Program who are already members of a CBP trusted traveler program do not need to schedule an appointment for signature collection. Applicants should be aware, however, that if they arrive at an enrollment center without an appointment, they may have to wait a considerable length of time before a CBP officer is able to process their signature. By scheduling an appointment, applicants can prevent long wait-times and allow for better time management by CBP officers at enrollment centers. As such, although appointments are not necessary, they are encouraged.

3. Benefits of the U.S. ABTC Program

Comment: One commenter indicated that the average amount of time a U.S. ABTC holder saves on account of the expedited entry procedures associated with the U.S. ABTC Program is greater than anticipated in the IFR. The commenter noted that the actual benefit to a U.S. ABTC holder is greater than the average calculated time savings of 43 minutes per trip because travelers can save a significant amount of time by arriving at the airport later and by catching flights that they would have otherwise missed if not for the U.S. ABTC Program's fast-track immigration clearance.

Response: CBP believes the weighted average time savings of approximately 43 minutes is an appropriate estimate of the time savings a U.S. ABTC holder will receive when clearing foreign immigration services using the fast-track immigration lanes. To the extent that this estimate understates the time saved by U.S. ABTC holders, the benefits of the rule will be higher. Similarly, to the extent that U.S. ABTC holders are able to catch flights they would have otherwise missed due to lengthy immigration waits, the benefits of this rule will be higher.

4. Self-Certification

Comment: One commenter asked that CBP ease the “manner for determining business travel eligibility” by allowing applicants to self-certify their status as a business traveler.

Response: The U.S. ABTC Program already allows for such self-certification. When applying for the U.S. ABTC, an applicant must complete and submit an application electronically through the GOES Web site. During the application process, the applicant is prompted to self-certify that he or she is a bona fide business person who is engaged in the trade of goods, the provision of services or the conduct of investment activities, or is a U.S. Government official actively engaged in APEC business, and that he or she is not a professional athlete, news correspondent, entertainer, musician, artist, or person engaged in a similar occupation. See 8 CFR 235.13(c)(2).

III. Conclusion—Regulatory Amendments

After careful consideration of the comments received, CBP is adopting the interim regulations published May 13, 2014 as a final rule with the following two changes. First, CBP is changing the validity period of U.S. ABTCs from three years to five years based on revisions in the APEC Framework. Second, CBP is removing all references in the U.S. ABTC regulation to suspension from the program because CBP does not use suspension as a remedial action. Further details about these changes are discussed below. DHS believes that this rule is excluded from APA rulemaking requirements as a foreign affairs function of the United States pursuant to 5 U.S.C. 553(a)(1) because it advances the President's foreign policy goal of facilitating business travel within the APEC region and allows the United States to fulfill its intent under the multilateral APEC Framework. Accordingly, these changes are exempt from notice and comment rulemaking generally required under 5 U.S.C. 553.

A. Change in Validity Period

The IFR provided that the U.S. ABTC is valid for three years or until the expiration date of the card holder's passport if that is earlier, provided participation is not terminated by CBP prior to the end of this period. See 8 CFR 235.13(c)(6). However, the IFR noted that any subsequent revisions to the APEC Framework that directly affect the U.S. ABTC may require regulatory changes.5

5 Footnote 11 of the IFR states, “The current version of the APEC Framework is Version 17, agreed to on January 30, 2013. Any subsequent revisions to the APEC Framework that directly affect the U.S. ABTC may require a regulatory change”.

The most recent version of the APEC Framework (Version 19) extended the validity period of ABTCs to “a maximum period of five years”. (APEC Framework 3.8.1). The Business Mobility Group (BMG), an APEC working group comprised of representatives from all member economies, is responsible for updating the APEC Framework. The BMG has indicated that the ABTC Program is on a trajectory towards requiring a five-year validity period for all ABTCs. Given the time constraints of some participating members' domestic procedures, however, the BMG acknowledges that it may take a significant amount of time for some members to be able to comply with this expectation. Accordingly, provision 3.8.1 of the APEC Framework allows for some variability in validity periods while member economies work towards reaching the goal of extending the validity period of new ABTCs to five years.

In keeping with the United States' intent to follow APEC's operating principles and procedures, CBP is changing the validity period for U.S. ABTCs to five years. Accordingly, CBP is revising 8 CFR 235.13(c)(6) by replacing “3 years” with “five years”. Individuals who submit a U.S. ABTC application or renewal request on or after December 23, 2016 will be eligible to receive a U.S. ABTC with a five-year validity period.6 This change in validity period does not apply to current U.S. ABTC holders, whose cards will remain valid only until the date printed on their card, subject to earlier revocation by CBP.

6 If the card holder's passport will expire before the end of the validity period, CBP will issue the U.S. ABTC with a shorter validity period that matches the passport expiration date. See 8 CFR 235.13(c)(6).

CBP notes that this change in validity period will be beneficial to many new U.S. ABTC holders, as they will be able to avail themselves of the program for two additional years. The extension in validity period will also be beneficial to many U.S. ABTC holders in the event that Congress extends the APEC Act.7 Should the U.S. ABTC Program be extended, individuals who apply concurrently for the U.S. ABTC and a CBP trusted traveler program will be able to take advantage of a more streamlined renewal process. Currently, Global Entry, NEXUS, and SENTRI memberships are all valid for a period of five years, whereas the U.S. ABTC Program membership is only valid for three years. Accordingly, individuals who apply for both programs concurrently must renew their U.S. ABTCs after three years, then renew their CBP trusted traveler program membership two years later. By extending the validity period of the U.S. ABTC to five years, these individuals will be able to initiate the renewal process for both programs at the same time.

7 The APEC Act authorizes the Secretary to issue U.S. ABTCs only through September 30, 2018. Unless the law is amended to extend that date, CBP will not issue any new U.S. ABTCs or renew any U.S. ABTCs after September 30, 2018. U.S. ABTC holders will retain their membership in the U.S. ABTC Program for the full validity period (even if the validity period extends past September 30, 2018) unless membership is revoked earlier.

B. Removal of References to Suspension From the Program

Although 8 CFR 235.13(f) addresses situations in which an applicant may be suspended or removed from the program, CBP no longer uses suspension as a remedial action. In the event that CBP action is necessary under 8 CFR 235.13, CBP removes the U.S. ABTC holder from the program. Accordingly, CBP is removing all references to “suspension” and “suspended” from § 235.13(f) and from § 235.13 (c), (g), and (h), which also refer to “suspension” and “suspended”. This change is also in line with the APEC Framework, which provides for cancellation but not suspension of ABTCs.

IV. Statutory and Regulatory Requirements A. Executive Order 13563 and Executive Order 12866

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this rule. CBP has prepared the following analysis to help inform stakeholders of the potential impacts of this final rule.

1. Synopsis

This rule adopts as final the interim final rule establishing the U.S. ABTC Program with the following changes: It expands the validity period for new U.S. ABTCs and it removes all references to suspension from the program.8 CBP largely adopts the economic analysis for the U.S. ABTC Program's IFR for this final rule. However, this final rule analysis incorporates recent changes to the IFR's U.S. ABTC validity period, applicant projections, application and renewal burdens, and program impacts.

8 79 FR 27167, May 13, 2014.

Pursuant to the authorizing statute, the Secretary of Homeland Security is authorized to set a U.S. ABTC Program fee. CBP has determined that a $70 fee is necessary to recover its costs of administering the U.S. ABTC Program.9 As shown in Table 1, initial U.S. ABTC applicants incur the $70 U.S. ABTC fee and an opportunity cost associated with obtaining a U.S. ABTC. Because participation in a CBP trusted traveler program is a prerequisite for obtaining a U.S. ABTC, individuals who are not already members of such a program need to concurrently apply for a U.S. ABTC and a CBP trusted traveler program, and pay the programs' applicable fees. CBP assumes that individuals not already in a CBP trusted traveler program will choose to join Global Entry because it, like the U.S. ABTC Program, provides expedited clearance in the air environment. The application fee for Global Entry is currently $100.10 CBP estimates the opportunity cost to initially obtain a U.S. ABTC for those who are already members of a CBP trusted traveler program to be $73.69. CBP estimates the opportunity cost to initially obtain a U.S. ABTC for individuals who are not members of a CBP trusted traveler program to be $105.27. Accounting for application fees and opportunity costs, the total cost of initially obtaining a U.S. ABTC ranges from almost $144 for U.S. ABTC applicants who are already in a CBP trusted traveler program to $275 for U.S. ABTC applicants who are not already in a CBP trusted traveler program, as shown in Table 1. Table 1 also shows that the costs to renew U.S. ABTCs are much lower than these initial application costs. CBP will provide additional details about these estimates later in the analysis.

9 CBP performed a fee study to determine the yearly costs of the program and the cost to establish the program for all relevant parties. This fee study, entitled “Asia-Pacific Economic Cooperation Business Travel Card Fee Study,” is posted on the docket as supplemental materials on www.regulations.gov.

10 8 CFR 103.7.

The U.S. ABTC Program is a voluntary program that enables card holders to access fast-track immigration lanes at participating airports in the 20 other APEC member economies.11 CBP estimates that U.S. ABTC holders will experience a time savings of approximately 43 minutes when clearing foreign immigration services using the fast-track immigration lanes.12 As the U.S. ABTC Program is voluntary, the perceived benefits of reduced wait time have to equal or exceed the cost of the program over five years (the new validity period of the U.S. ABTC) for new potential enrollees to determine whether the program is worthwhile. As discussed later in further detail, CBP estimates that a U.S. ABTC applicant who is already enrolled in a CBP trusted traveler program will need to take a minimum of four trips across the U.S. ABTC's five-year validity period for the benefits of the U.S. ABTC Program to exceed the costs associated with joining the program. Additionally, CBP estimates that a U.S. ABTC applicant who is not already a CBP trusted traveler member will need to take a minimum of six trips between the United States and an APEC economy over the five-year validity period for the benefits of the U.S. ABTC Program to exceed the costs associated with joining the program. Current U.S. ABTC holders will need to take even fewer trips per year for the benefits of renewing their program memberships to outweigh the costs.

11 Asia-Pacific Economic Cooperation, “Member Economies.” Available at http://www.apec.org/About-Us/About-APEC/Member-Economies.aspx. Accessed July 8, 2015.

12 Based on data from Asia-Pacific Economic Cooperation. “Reducing Business Travel Costs: The Success of APEC's Business Mobility Initiatives.” November 2011. Available at http://publications.apec.org/publication-detail.php?pub_id=1214. Accessed May 23, 2012.

Table 1—Total Cost by Applicant Type Applicant type Cost category Initial costs Renewal costs U.S. ABTC Applicants Already in a CBP Trusted Traveler Program U.S. ABTC Fee
  • Global Entry Fee *
  • U.S. ABTC Opportunity Cost †
  • $70
  • n/a
  • $73.69 (1.17 hrs)
  • $70
  • n/a
  • $10.53 (0.17 hrs)
  • Total (rounded to nearest $1) $144 $81 U.S. ABTC Applicants Not Already in a CBP Trusted Traveler Program U.S. ABTC Fee
  • Global Entry Fee *
  • U.S. ABTC and Global Entry Opportunity Cost †
  • $70
  • $100
  • $105.27 (1.67 hrs)
  • $70
  • $100
  • $10.53 (0.17 hrs)
  • Total (rounded to nearest $1) $275 $181 * CBP anticipates that those U.S. ABTC applicants who must choose a CBP trusted traveler program when applying for the U.S. ABTC will choose to join Global Entry because, like the U.S. ABTC Program, Global Entry provides expedited clearance in the air environment. † This value is based on the U.S. Department of Transportation's (DOT) guidance regarding the valuation of travel time for business travelers in 2013 U.S. dollars, adjusted to 2017 U.S. dollars using the DOT's recommended annual growth rate of one percent. Source: U.S. Department of Transportation, Office of Transportation Policy. The Value of Travel Time Savings: Departmental Guidance for Conducting Economic Evaluations Revision 2 (2015 Update). “Table 4 (Revision 2-corrected): Recommended Hourly Values of Travel Time Savings.” 2015. Available at http://www.transportation.gov/sites/dot.gov/files/docs/Revised%20Departmental%20Guidance%20on%20Valuation%20of%20Travel%20Time%20in%20Economic%20Analysis.pdf. Accessed February 16, 2016. Note: There are two categories of U.S. ABTC applicants: Those who are already in a CBP trusted traveler program and those who are not. CBP does not consider the cost of joining a CBP trusted traveler program for those applicants who are already members of a CBP trusted traveler program. These applicants have already, independent of any decision to join the U.S. ABTC Program, determined that the benefits of a CBP trusted traveler program outweigh the costs associated with the program they have chosen to join.
    2. Background

    The U.S. ABTC Program is a voluntary program that allows U.S. citizens with U.S. ABTCs to access fast-track immigration lanes at participating airports in the 20 other APEC member economies. In order to be eligible for a U.S. ABTC, a U.S. citizen is required to be a bona fide business person engaged in business in the APEC region or a U.S. Government official actively engaged in APEC business. Additionally, the U.S. ABTC applicant must be a member in good standing of a CBP trusted traveler program or approved for membership in a CBP trusted traveler program during the U.S. ABTC application process. U.S. ABTC applicants who are not already CBP trusted traveler program members must also apply for membership to a CBP trusted traveler program with their U.S. ABTC application.13 Since the publication of the U.S. ABTC IFR, APEC members (including the United States) endorsed increasing the validity period of the ABTC to “a maximum period of five years.” However, APEC's BMG has indicated that the ABTC Program is on a trajectory towards requiring a five-year validity period for all ABTCs. In keeping with the United States' intent to follow APEC's operating principles and procedures, CBP is changing the validity period for U.S. ABTCs from three years to five years (or until the expiration date of the card holder's passport if that is earlier) through this rule. With this expansion, the U.S. ABTC's validity period will now match that of CBP's trusted traveler programs.

    13 As stated in the U.S. ABTC IFR, CBP assumes that a U.S. ABTC applicant who is not already a member of a CBP trusted traveler program will concurrently apply for a CBP trusted traveler program and a U.S. ABTC.

    Individuals who submit a U.S. ABTC application or renewal request on or after this final rule's effective date may be eligible to receive a U.S. ABTC with a five-year validity period. If the card holder's passport will expire before the end of the five-year validity period, CBP will issue the U.S. ABTC with a shorter validity period that matches the passport expiration date. If the card holder's CBP trusted traveler program membership expires during their U.S. ABTC's validity period, CBP may revoke the U.S. ABTC since membership in a CBP trusted traveler program is necessary for the entire duration of the U.S. ABTC. This change in validity period does not apply to current U.S. ABTC holders, whose cards will remain valid only until the date printed on their card, subject to earlier revocation by CBP. Similar to CBP trusted traveler programs, a U.S. ABTC holder will be required to renew his or her membership prior to expiration to continue enjoying the benefits of the program.

    3. U.S. ABTC Applicant Categories

    There are two categories of initial U.S. ABTC applicants (i.e., individuals who are not renewing their U.S. ABTC membership) that CBP discusses separately in this analysis: Those who are already part of a CBP trusted traveler program and those who are not. This distinction is necessary because those applicants who are not already part of a CBP trusted traveler program will bear an additional opportunity cost and fee associated with applying for a CBP trusted traveler program to be eligible for a U.S. ABTC.

    a. U.S. ABTC Applicants Who Are Already Members of a CBP Trusted Traveler Program

    If an initial U.S. ABTC applicant is already a member of a CBP trusted traveler program, the applicant will have to apply for a U.S. ABTC by self-certifying, via the GOES Web site, that: He or she is an existing member in good standing in a CBP trusted traveler program; he or she is either a bona fide U.S. business person engaged in business in the APEC region or a U.S. Government official actively engaged in APEC business; and he or she is not a professional athlete, news correspondent, entertainer, musician, artist, or person engaged in a similar occupation. In addition to the self-certification, the U.S. ABTC applicant will also be required to pay the U.S. ABTC fee via the GOES Web site and visit a CBP trusted traveler enrollment center in order for his or her signature to be digitally captured for the U.S. ABTC. CBP estimates that U.S. ABTC applicants will experience an opportunity cost of 10 minutes to complete the U.S. ABTC self-certification, pay the U.S. ABTC fee, and have their signature digitally captured at an enrollment center.14 These applicants will also experience a one-hour opportunity cost to travel to and from an enrollment center and wait to have their signature digitally captured. For the purposes of this rule, CBP does not consider the costs or benefits of joining a CBP trusted traveler program as impacts of this rule for those U.S. ABTC Program applicants who are already members of a CBP trusted traveler program. These applicants have previously, independent of any decision to join the U.S. ABTC Program, determined that the benefits of a CBP trusted traveler program outweigh the costs associated with the program they have chosen to join. They have not chosen to join the U.S. ABTC Program as a direct result of this rule.

    14 80 FR 1650, January 13, 2015.

    b. U.S. ABTC Applicants Who Are Not Already Members of a CBP Trusted Traveler Program

    An initial U.S. ABTC applicant who is not already a member of a CBP trusted traveler program will be required to apply for a U.S. ABTC and a CBP trusted traveler program, and self-certify that: He or she has submitted an application to a CBP trusted traveler program; he or she is either a bona fide U.S. business person engaged in business in the APEC region or a U.S. Government official actively engaged in APEC business; and he or she is not a professional athlete, news correspondent, entertainer, musician, artist, or person engaged in a similar occupation. Because these applicants would not have joined a CBP trusted traveler program if not for the U.S. ABTC Program, CBP includes the costs and benefits for these applicants to join these programs in this analysis.

    CBP anticipates that those initial U.S. ABTC applicants who must choose a CBP trusted traveler program when applying for the U.S. ABTC Program will choose to join Global Entry because, like the U.S. ABTC Program, Global Entry provides expedited clearance in the air environment. As described in the Global Entry final rule, CBP estimates that a Global Entry applicant will experience an opportunity cost of 40 minutes to complete the Global Entry application in GOES.15 When concurrently applying for a U.S. ABTC and Global Entry, CBP anticipates that the U.S. ABTC applicant will be able to complete the Global Entry application, complete the U.S. ABTC self-certification, schedule their required Global Entry enrollment interview, pay the program application fees, and have their signature digitally captured for the U.S. ABTC Program in the 40 minutes estimated for the Global Entry application.16 Based on the Global Entry final rule, CBP estimates that Global Entry applicants also applying for a U.S. ABTC will experience an opportunity cost of one hour to travel to and from a CBP trusted traveler enrollment center and undergo the required Global Entry interview.17

    15 77 FR 5681, February 6, 2012.

    16 As described above, the self-certification only entails certifying in GOES that the U.S. ABTC applicant is an existing member in good standing in a CBP trusted traveler program or that he or she has submitted an application to a CBP trusted traveler program; that he or she is either a bona fide U.S. business person engaged in business in the APEC region or a U.S. Government official actively engaged in APEC business; and that he or she is not a professional athlete, news correspondent, entertainer, musician, artist, or person engaged in a similar occupation.

    17 77 FR 5681, February 6, 2012.

    4. Number of U.S. ABTC Applicants

    In the U.S. ABTC IFR, CBP projected that 12,750 U.S. citizens would enroll in the U.S. ABTC Program within the first three years of the program's start date based on National Center for Asia-Pacific Economic Cooperation 18 estimates.19 Between the U.S. ABTC IFR's effective date in FY 2014 and December 2015, CBP has received nearly 21,000 initial U.S. ABTC Program applications, exceeding the IFR's projections.20 Based on worldwide ABTC growth, CBP expects to receive new, initial U.S. ABTC applications past the first three years of the U.S. ABTC's implementation, which contrasts to the U.S. ABTC IFR's assumption that initial applicants would occur in only a three-year period.21 To project U.S. ABTC application volumes following this final rule's implementation, CBP first uses the latest data available to determine a base value for future applications. During the first three months of FY 2016 (October 2015 to December 2015), CBP received 1,163 U.S. ABTC applications that corresponded to current CBP trusted traveler program members and 2,423 that did not.22 CBP then extrapolates this partial-year data to the full 2016 fiscal year by multiplying the three-month totals of historical FY 2016 application data according to the applicant type (1,163 for applicants already in a CBP trusted traveler program and 2,423 for applicants not already in a CBP trusted traveler program) and multiplying each of the totals by 4 to account for 12 months, or a full year, of application volumes. Through this estimation method, CBP finds that 4,652 of the projected new, initial U.S. ABTC Program applications in FY 2016, the base year, will correspond to individuals who are already CBP trusted traveler program members, while 9,692 new, initial U.S. ABTC applications will correspond to individuals who are not already CBP trusted traveler program members (see Table 2).23 CBP chose to use extrapolated FY 2016 data rather than the FY 2015 statistics as a base for future U.S. ABTC demand because the partial-year FY 2016 data indicated an increase in the second year of total U.S. ABTC applications, which is consistent with CBP expectations of program growth in this time period.

    18 The National Center for Asia-Pacific Economic Cooperation is a U.S. business association focused on facilitating the private sector input into the APEC process.

    19See http://csis.org/publication/why-us-approval-apec-business-travel-card-matters.

    20 The total U.S. ABTC applications figure represents applications received between the U.S. ABTC Program's interim effective date of June 12, 2014 through December 2015. Source: Email correspondence with CBP's Office of Field Operations on August 12, 2015 and February 10, 2016.

    21 According to APEC, the ABTC “has experienced significant growth in recent years. The number of active card users in the year to 30 June 2015 increased by more than 15 per cent, to over 190,000, compared to around 164,000 in mid-2014.” Source: Asia-Pacific Economic Cooperation. “APEC Business Travel Card to be Extended to Five Years from 1 September.” 2015. Available at http://www.apecsec.org.sg/Press/News-Releases/2015/0728_ABTC.aspx. Accessed March 3, 2016.

    22Source: Email correspondence with CBP's Office of Field Operations on February 10, 2016.

    23 1,163 U.S. ABTC applications corresponding to individuals who are already in a trusted traveler program received during first three months of fiscal year 2016 × 4 = 4,652. 2,423 U.S. ABTC applications corresponding to individuals who are not already in a trusted traveler program received during first three months of fiscal year 2016 × 4 = 9,692.

    Given the newness of the U.S. ABTC Program and its subsequently limited historical data available to establish a specific longer term growth rate in U.S. ABTC applications, CBP assumes that the total number of U.S. ABTC applications projected for FY 2016 will remain the same for FY 2017 and FY 2018. Accordingly, CBP estimates that 4,652 new, initial U.S. ABTC Program applications each year from individuals who are already CBP trusted traveler program members and 9,692 new, initial U.S. ABTC applications from individuals who are not already CBP trusted traveler program members (see Table 2). In accordance with the U.S. ABTC's authorizing law, CBP does not plan to issue any new U.S. ABTCs or renew any U.S. ABTCs after September 30, 2018, the end of FY 2018. Unless the law is amended to extend the duration of U.S. ABTC issuance, all U.S. ABTCs will expire within a five-year validity period lasting up to September 29, 2023. Therefore, CBP does not forecast any new applications beyond FY 2018 and assumes that no new U.S. ABTCs will be issued thereafter for the purposes of this analysis. Table 2 presents the historical and projected initial applications for the U.S. ABTC Program. As Table 2 shows, CBP estimates that almost 61,000 U.S. citizens will initially apply for the U.S. ABTC Program during the period of analysis spanning from FY 2014 through FY 2018, with 21,000 applicants already possessing a CBP trusted traveler program membership and 40,000 applicants not already CBP trusted traveler program members. CBP assumes that each application signifies a single, unique applicant.

    24 Although the accompanying U.S. ABTC fee study includes CBP's costs related to the processing and printing of 5,000 Canadian ABTCs, CBP excludes these costs from this analysis because Canadian ABTC enrollees are not members of the U.S. ABTC Program and CBP is reimbursed for the costs associated with processing their applications.

    Table 2—Historical and Projected Numbers of U.S. ABTC Applicants Already and Not Already in a CBP Trusted Traveler Program 24 Fiscal year Number of
  • initial U.S.
  • ABTC
  • applicants
  • already in a
  • CBP trusted
  • traveler
  • program
  • Number of
  • initial U.S.
  • ABTC
  • applicants
  • Not already
  • in a CBP
  • trusted
  • traveler
  • program
  • Total
  • initial U.S.
  • ABTC
  • applications
  • 2014 * 2,126 2,477 4,603 2015 4,976 8,138 13,114 2016 ** 4,652 9,692 14,344 2017 *** 4,652 9,692 14,344 2018 *** 4,652 9,692 14,344 Total 21,058 39,691 60,749 * Partial year of historical data spanning from the U.S. ABTC Program's effective date of June 12, 2014 to the end of FY 2014. ** Estimate based on historical data spanning from start of October 2015 to December 2015 and data extrapolated for the remaining months of FY 2016. *** Projection.

    Although CBP received nearly 21,000 initial U.S. ABTC applications between June 2014 and December 2015, the agency only processed around 18,000 applications during that time period. Of those applications processed, CBP approved 88 percent on average.25 During FY 2016, and before the implementation of this final rule and its establishment of a new U.S. ABTC validity period in FY 2017, CBP assumes that the agency will process the backlog of U.S. ABTC Program applications as well as new applications submitted in FY 2016. This would result in the processing of 17,370 initial U.S. ABTC applications in FY 2016. CBP also assumes that the agency will approve 88 percent of these applications, which would bring the total U.S. ABTC Program membership up to 28,303 by the end of FY 2016 (see Table 3). For initial U.S. ABTC applications received from FY 2017 to FY 2018, CBP assumes that it would maintain a processing rate equal to its projected application rate, with 14,344 U.S. ABTC applications received and processed each year. Among the projected applications processed between FY 2017 and FY 2018, CBP believes that 88 percent will receive approvals based on the historical U.S. ABTC application approval rate. Thus, about 25,000 new individuals will become members of the U.S. ABTC Program from FY 2017 to FY 2018, as Table 3 illustrates. CBP assumes that these 25,000 individuals will generally receive U.S. ABTCs with five-year validity rates and maintain their program membership for the full validity period.

    25 From June 2014 through December 2015, CBP approved 15,854 U.S. ABTC applications and denied 2,166 U.S. ABTC applications, for an approval rate of 88 percent. Source: Email correspondence with CBP's Office of Field Operations on August 12, 2015 and February 10, 2016.

    Table 3—Projected Number of Initial U.S. ABTC Membership Approvals and Denials Fiscal year Number of
  • initial U.S.
  • ABTC
  • applications
  • approved
  • (i.e., new
  • U.S. ABTC
  • program
  • members)
  • Number of
  • initial U.S.
  • ABTC
  • applications
  • denied
  • Total initial
  • U.S. ABTC
  • applications
  • processed
  • 2014 * 2,619 273 2,892 2015 10,398 1,401 11,799 2016 ** 15,286 2,084 17,370 2017 *** 12,623 1,721 14,344 2018 *** 12,623 1,721 14,344 Total 53,549 7,200 60,749 * Partial year of historical data spanning from the U.S. ABTC Program's effective date of June 12, 2014 to the end of FY 2014. ** Estimate based on historical data spanning from start of October 2015 to December 2015 and data extrapolated for the remaining months of FY 2016. *** Projection. Note: Estimates may not sum to total due to rounding.

    Without complete data on the number of approved U.S. ABTC applications that corresponded to existing CBP trusted traveler program members, CBP assumes that all of the U.S. ABTC applications submitted between FY 2014 and FY 2018 from individuals already in a CBP trusted traveler program will correspond to an approved application in those respective application years. CBP assumes this because these applicants have already been approved for a trusted traveler program (see Table 2). The remaining U.S. ABTC applications approved during the period of analysis will correspond to individuals who concurrently applied, or will concurrently apply, for the U.S. ABTC program and a CBP trusted traveler program. Table 4 summarizes the number of new, initial U.S. ABTC applications approved according to applicants' CBP trusted traveler membership statuses. As illustrated, CBP estimates that 21,000 initial U.S. ABTC members are expected to already be CBP trusted traveler program members prior to applying for a U.S. ABTC between FY 2014 and FY 2018, while 32,000 are not expected to be current members of a CBP trusted traveler program during that period (see Table 4).

    Table 4—Projected Number of U.S. ABTC Applications Approved for Members Already and Not Already in a CBP Trusted Traveler Program Fiscal year Number of initial U.S. ABTC applications approved for members
  • already in a CBP trusted traveler
  • program
  • Number of initial U.S. ABTC applications approved for members Not already in a CBP trusted traveler
  • program
  • Total initial U.S. ABTC
  • applications
  • approved (i.e., U.S. ABTC program
  • members) (from Table 3)
  • 2014 * 2,126 493 2,619 2015 4,976 5,422 10,398 2016 ** 4,652 10,634 15,286 2017 *** 4,652 7,971 12,623 2018 *** 4,652 7,971 12,623 Total 21,058 32,491 53,549 * Partial year of historical data spanning from the U.S. ABTC Program's effective date of June 12, 2014 to the end of FY 2014. ** Estimate based on historical data spanning from start of October 2015 to December 2015 and data extrapolated for the remaining months of FY 2016. *** Projection. Note: Estimates may not sum to total due to rounding.

    As previously mentioned, the statute authorizing U.S. ABTC issuance currently expires at the end of FY 2018. Consistent with the U.S. ABTC IFR, CBP estimates that the 2,619 members approved for the U.S. ABTC Program in FY 2014 will renew their memberships in FY 2017 upon the expiration of their three-year validity periods (see Table 4). Likewise, CBP estimates that the 10,398 members approved for the U.S. ABTC Program in FY 2015 will renew their memberships in FY 2018 upon the expiration of their three-year validity periods (see Table 4). For continued program use after FY 2018, CBP estimates that the 15,286 U.S. ABTC applicants approved in FY 2016 will renew their U.S. ABTC Program memberships in FY 2018 before their initial U.S. ABTC validity periods end (see Table 4). As stated in the U.S. ABTC IFR, it is possible that individuals initially approved for the U.S. ABTC Program will change to a job function that does not require conducting APEC business, making them ineligible for a U.S. ABTC. In these cases, CBP assumes that the individual's replacement in that position will enroll in the U.S. ABTC Program, in lieu of the original enrollee, in order to benefit from the expedited immigration process while visiting APEC member economies. Due to the short timeframe between this final rule's implementation and the expiration of the U.S. ABTC Program, CBP does not believe that individuals who enroll in the U.S. ABTC Program between FY 2017 and FY 2018 will renew their memberships during the period of analysis. This is because CBP thinks it is unlikely that these individuals will incur U.S. ABTC application fees and time costs to get less than two years of additional U.S. ABTC use.

    Table 5 shows the projected number of U.S. ABTC members who will renew their U.S. ABTC Program memberships during the period of analysis according to their current CBP trusted traveler program membership status. As illustrated, all 28,303 U.S. ABTC applicants approved for memberships prior to FY 2017 will renew their U.S. ABTC memberships by FY 2018's end. In accordance with this rule's extended U.S. ABTC validity period, these members will generally receive U.S. ABTCs that will expire within a five-year validity period lasting up to September 29, 2023. For simplicity of the analysis, CBP counts both the original U.S. ABTC holder who renews and any replacement applicants, if applicable, as a renewal in Table 5. Note that renewals are not forecasted beyond FY 2018 because the statute authorizing the U.S. ABTC expires at the end of that year.

    Table 5—Projected Number of U.S. ABTC Program Membership Renewals for Members Already and Not Already in a CBP Trusted Traveler Program Fiscal year Number of U.S. ABTC
  • renewals from members
  • previously in a CBP trusted traveler
  • program
  • Number of U.S. ABTC
  • renewals from members Not previously in a CBP trusted traveler
  • program
  • Total U.S. ABTC
  • renewals
  • 2014 2015 2016 ** 2017 *** 2,126 493 2,619 2018 *** 9,628 16,056 25,684 Total 11,754 16,549 28,303 ** Estimate based on historical data spanning from start of October 2015 to December 2015 and data extrapolated for the remaining months of FY 2016. *** Projection. Note: Estimates may not sum to total due to rounding.
    5. Costs

    CBP has determined that a $70 fee is necessary to recover its costs associated with the U.S. ABTC Program. These costs include the cost to issue the U.S. ABTCs and the information technology infrastructure costs, initial and recurring, required to run the U.S. ABTC Program.26 In addition to the U.S. ABTC fee, initial U.S. ABTC applicants will also experience an opportunity cost associated with obtaining a U.S. ABTC. As previously discussed, CBP estimates that new, initial U.S. ABTC applicants who are already members of a CBP trusted traveler program will experience a 1 hour and 10-minute (70-minute) application-related opportunity cost, while U.S. ABTC applicants who are not already members of a CBP trusted traveler program will experience a 1 hour and 40-minute (100-minute) application-related opportunity cost. U.S. ABTC applicants who are not already members of a CBP trusted traveler program are required to pay another fee to join the U.S. ABTC Program—the $100 application fee associated with the Global Entry program.27 The Department of Transportation's guidance on the valuation of travel time for air passengers estimates a business traveler's value to be $63.16 per hour.28 Using this estimate as well as the opportunity cost and fees just described, CBP estimates that it will cost a new, initial U.S. ABTC applicant who is already a CBP trusted traveler program member approximately $144 to join the U.S. ABTC Program.29 For new, initial U.S. ABTC applicants who are not already members of a CBP trusted traveler program, CBP estimates that it will cost approximately $275 to join the U.S. ABTC Program.30 By applying the U.S. ABTC applicant projections according to CBP trusted traveler program membership statuses (see Table 2) to their respective U.S. ABTC application costs ($144 for applicants already in a CBP trusted traveler program and $275 for applicants not already in a CBP trusted traveler program), CBP finds that new, initial U.S. ABTC applicants have incurred or will incur undiscounted costs totaling $13.9 million during this rule's period of analysis (see Table 6).

    26 The Asia-Pacific Economic Cooperation Business Travel Card Fee Study is posted in the docket for this rulemaking on www.regulations.gov.

    27 As previously discussed, CBP anticipates U.S. ABTC applicants who are not already members of a CBP trusted traveler program will join the Global Entry program.

    28 As previously mentioned, this value is based on the U.S. Department of Transportation's (DOT) guidance regarding the valuation of travel time for business travelers in 2013 U.S. dollars, adjusted to 2017 U.S. dollars using the DOT's recommended annual growth rate of one percent. Source: U.S. Department of Transportation, Office of Transportation Policy. The Value of Travel Time Savings: Departmental Guidance for Conducting Economic Evaluations Revision 2 (2015 Update). “Table 4 (Revision 2-corrected): Recommended Hourly Values of Travel Time Savings.” 2015. Available at http://www.transportation.gov/sites/dot.gov/files/docs/Revised%20Departmental%20Guidance%20on%20Valuation%20of%20Travel%20Time%20in%20Economic%20Analysis.pdf. Accessed February 16, 2016.

    29 $63.16 x (70 minutes/60 minutes per hour) = $73.69; $73.69 + $70 U.S. ABTC fee = $143.69, or $144 when rounded to the nearest dollar. CBP estimates that U.S. ABTC applicants who are already in a CBP trusted traveler program will experience an opportunity cost of 10 minutes to complete a self-certification, schedule an appointment at an enrollment center, and have their signature digitally captured. Additionally, CBP estimates these applicants will experience an opportunity cost of 1 hour (60 minutes) to travel to and from an enrollment center and wait to have their signature digitally captured. In total, CBP estimates U.S. ABTC applicants who are already members of a CBP trusted traveler program will experience an opportunity cost of 70 minutes with this rule.

    30 $63.16 x (100 minutes/60 minutes per hour) = $105.27; $105.27 + $100 Global Entry program fee + $70 U.S. ABTC fee = $275.27, or $275 when rounded to the nearest dollar. CBP estimates that U.S. ABTC applicants who are not already in a CBP trusted traveler program will experience an opportunity cost of 40 minutes to complete the Global Entry application and the U.S. ABTC self-certification, schedule their required Global Entry enrollment interview, pay the program application fees, and have their signature digitally captured for the U.S. ABTC Program. Additionally, CBP estimates these applicants will experience an opportunity cost of 1 hour (60 minutes) to travel to and from an enrollment center and complete the interview for Global Entry. In total, CBP estimates U.S. ABTC applicants who are not already members of a CBP trusted traveler program will experience an opportunity cost of 100 minutes with this rule.

    Table 6—U.S. ABTC Program Application Costs to New, Initial Applicants [Undiscounted] Fiscal year Number of
  • initial U.S.
  • ABTC
  • applicants
  • already in
  • a CBP
  • trusted
  • traveler
  • program
  • Total
  • application
  • cost for U.S.
  • ABTC
  • applicants
  • already in a
  • CBP trusted
  • traveler
  • program
  • Number of
  • initial U.S.
  • ABTC
  • applicants
  • Not already
  • in a CBP
  • trusted
  • traveler
  • program
  • Total
  • application
  • cost for U.S.
  • ABTC
  • applicants
  • Not already
  • in a CBP
  • trusted
  • traveler
  • program
  • (A) ($144 × A) (B) ($275 × B) 2014 2,126 $306,144 2,477 $681,175 2015 4,976 716,544 8,138 2,237,950 2016 4,652 669,888 9,692 2,665,300 2017 4,652 669,888 9,692 2,665,300 2018 4,652 669,888 9,692 2,665,300 Total 21,058 3,032,352 39,691 10,915,025

    As mentioned earlier, CBP estimates that 28,303 U.S. ABTC applicants approved for memberships prior to FY 2017 will successfully renew their U.S. ABTC memberships by FY 2018's end (see Table 5). However, these members will incur different renewal costs according to their initial CBP trusted traveler program membership status. U.S. ABTC members already in a CBP trusted traveler program must complete the U.S. ABTC application (i.e., a self-certification) and pay the U.S. ABTC fee using GOES to renew their U.S. ABTC membership. These members will spend an estimated 10 minutes completing such renewal steps, at an opportunity cost of $10.53 per renewal.31 This contrasts to the IFR's analysis, which assumed that individuals would incur the same time burden when initially applying for or renewing a U.S. ABTC. Because the U.S. ABTC Program's initial digital signature capture requirement is generally not necessary for program membership renewal, CBP no longer believes that the time burdens to apply for and renew U.S. ABTC applications are the same. With U.S. ABTC renewals, members will not have to travel to a CBP trusted traveler enrollment center to have their signature digitally captured, thus decreasing their renewal burden assumed in the IFR. Along with the $10.53 renewal opportunity cost, U.S. ABTC applicants who were already members of a CBP trusted traveler program will be required to pay the $70 U.S. ABTC fee upon membership renewal, for a total U.S. ABTC renewal cost of approximately $81.32 Note that CBP does not consider the costs for current CBP trusted traveler program members to renew their CBP trusted traveler program memberships because they would presumably incur those costs even in the absence of this rule.

    31 $63.16 hourly time for business traveler × (10 minutes/60 minutes per hour) = $10.53.

    32 $10.53 opportunity cost to renew U.S. ABTC Program membership + $70 U.S. ABTC fee = $80.53, or $81 when rounded to the nearest dollar.

    Although CBP's trusted traveler program and U.S. ABTC Program validity periods previously differed (five years vs. three years for memberships approved before FY 2017), CBP continues to assume for the simplicity of this analysis that U.S. ABTC applicants who joined a CBP trusted traveler program exclusively for the ability to obtain a U.S. ABTC will concurrently renew their U.S. ABTC and trusted traveler program memberships during the period of analysis. As such, CBP believes that to renew their U.S. ABTC memberships, U.S. ABTC members not previously in a CBP trusted traveler program will concurrently complete the U.S. ABTC application (i.e., a self-certification), Global Entry renewal, and pay the U.S. ABTC and Global Entry fees using GOES. These members will spend an estimated 10 minutes completing such renewal steps, at an opportunity cost of $10.53 per renewal.33 This burden contrasts to the IFR's analysis, which assumed that individuals would incur the same time burden when initially applying for or renewing a U.S. ABTC. Because the initial CBP trusted traveler program interview and the U.S. ABTC Program's digital signature capture requirements are generally not necessary for program membership renewals, CBP no longer believes that the time burdens to apply for and renew U.S. ABTC applications are the same. With U.S. ABTC renewals, members will not have to travel to a CBP trusted traveler enrollment center to have their signature digitally captured or undergo another interview, thus decreasing their renewal burden assumed in the IFR. Individuals concurrently renewing their U.S. ABTC and Global Entry memberships will also be required to pay the $70 U.S. ABTC fee and the $100 fee associated with the Global Entry program, for a total U.S. ABTC and Global Entry membership renewal cost of about $181.34

    33 $63.16 hourly time for business traveler × (10 minutes/60 minutes per hour) = $10.53.

    34 $10.53 opportunity cost to concurrently renew U.S. ABTC and Global Entry Program memberships + $100 Global Entry program fee + $70 U.S. ABTC fee = $180.53, or $181 when rounded to the nearest dollar.

    By applying the U.S. ABTC renewal projections according to CBP trusted traveler program membership statuses (see Table 5) to their respective U.S. ABTC membership renewal costs ($81 for applicants already in a CBP trusted traveler program and $181 for applicants not already in a CBP trusted traveler program), CBP finds that U.S. ABTC Program members will incur a total undiscounted cost of $3.9 million to renew their memberships during the period of analysis (see Table 7).

    Table 7—U.S. ABTC Program Renewal Costs to Members [Undiscounted] Fiscal year Number of
  • renewals from
  • members
  • previously
  • in a CBP
  • trusted
  • traveler
  • program
  • Total renewal
  • cost for
  • members
  • previously
  • in a CBP
  • trusted
  • traveler
  • program
  • Number of
  • renewals from
  • members Not
  • previously
  • in a CBP
  • trusted
  • traveler
  • program
  • Total renewal
  • cost from
  • members Not
  • previously
  • in a CBP
  • trusted
  • traveler
  • program
  • (A) ($81 × A) (B) ($181 × B) 2014 2015 2016 2017 2,126 $172,206 493 $89,233 2018 9,628 779,868 16,056 2,906,136 Total 11,754 952,074 16,549 2,995,369

    Accounting for initial application and renewal costs, the total undiscounted cost of this rule is $17.9 million. In present value terms, the overall cost of this rule will range from approximately $18.1 million to $18.3 million from FY 2014 to FY 2018 (see Table 8). The total annualized cost of this rule over the period of analysis will equal between $3.4 million and $3.5 million. These estimates vary according to the discount rate applied.

    Table 8—Total Cost of Rule, FY 2014-FY 2018 [2017 U.S. dollars] 3% Discount rate 7% Discount rate Present Value Cost $18,061,855 $18,319,248 Annualized Cost 3,504,094 3,408,535 6. Benefits

    As stated earlier, the U.S. ABTC Program will enable card holders to access fast-track immigration lanes at participating airports in the 20 other APEC member economies. Although the ABTC Program is relatively new for U.S. citizens, it is a well-established program for the other APEC member economies. In an effort to quantify the benefits of the ABTC, APEC commissioned the report “Reducing Business Travel Costs: The Success of APEC's Business Mobility Initiatives” (APEC Report).35 The APEC Report quantified seven key performance indicators, one of which quantifies the time savings an ABTC holder receives by using its fast-track immigration lanes. As shown in Table 9, the time savings each member economy's ABTC holders receive can vary greatly. Like in the U.S. ABTC IFR, CBP believes the weighted average time savings of approximately 43 minutes is an appropriate estimate of the time savings a U.S. ABTC holder will receive when clearing foreign immigration services using the fast-track immigration lanes. To the extent that our estimate understates the time saved by U.S. ABTC holders, the benefits of the rule will be higher. Similarly, to the extent that U.S. ABTC holders are able to catch flights they would have otherwise missed due to lengthy immigration waits, the benefits of this rule will be higher.

    35 Asia-Pacific Economic Cooperation. “Reducing Business Travel Costs: The Success of APEC's Business Mobility Initiatives.” November 2011. Available at http://publications.apec.org/publication-detail.php?pub_id=1214. Accessed May 23, 2012.

    Table 9—Key Performance Indicator 4—Total Time Savings Clearing Immigration at the Border by ABTC Holders Economy Average time
  • savings/ABTC
  • holder
  • (minutes)
  • ABTC holders
  • (2011)
  • Total time
  • savings by
  • ABTC holders
  • (minutes)
  • Australia 46.52 24,286 1,129,713 Brunei Darussalam 32.81 43 1,411 Chile 49.33 416 20,520 China 38.74 3,895 150,882 Hong Kong China 26.28 10,659 280,137 Indonesia 60.2 1,495 90,003 Japan 51.49 2,541 130,840 South Korea 43.26 8,422 364,351 Malaysia 66.19 4,140 274,043 Mexico 103.51 185 19,149 New Zealand 48.11 6,538 314,527 Papua New Guinea 27.03 22 595 Peru 40.78 1,277 52,082 Philippines 45.22 476 21,525 Singapore 64.15 8,137 522,013 Thailand 28.94 5,564 161,006 Vietnam 24.29 8,730 212,011 Total n/a 86,826 3,744,808 Weighted Average 43.13 n/a n/a Source: Asia-Pacific Economic Cooperation. “Reducing Business Travel Costs: The Success of APEC's Business Mobility Initiatives.” October 2011. Available at http://publications.apec.org/publication-detail.php?pub_id=1214. Accessed May 23, 2012.

    As previously discussed, the DOT's guidance regarding the valuation of travel time estimates a business air traveler's value to be $63.16 per hour. Using this hourly time value and the 43 minutes in time savings from the ABTC per trip, CBP estimates each U.S. ABTC holder will save approximately $45 per visit to an APEC member economy.36 In addition to the time savings per trip to an APEC member economy, CBP estimates a new, initial U.S. ABTC applicant who is not already a CBP trusted traveler member will also save an additional 7 minutes on net, or $7 in opportunity costs, by using a Global Entry kiosk for expedited CBP clearance upon returning to the United States from an APEC economy.37

    36 $63.16 × (43 minutes/60 minutes per hour) = $45.26, or $45 when rounded to the nearest dollar.

    37 $63.16 × (7 minutes/60 minutes per hour) = $7.37, or $7 when rounded to the nearest dollar. Source: 77 FR 5681, February 6, 2012.

    7. Net Benefits

    Because participation in the U.S. ABTC Program is voluntary, the perceived benefits of its reduced wait times have to equal or exceed the cost of the program over five years for potential enrollees to determine whether or not the program is worthwhile to join. As previously discussed, CBP estimates that each U.S. ABTC holder will save approximately $45 per trip by using the fast-track immigration lanes in foreign APEC member economies. Although CBP is unable to estimate the number of trips each individual U.S. ABTC holder will take to an APEC member economy, CBP can estimate the minimum number of trips a U.S. ABTC holder will have to take over the five-year U.S. ABTC validity period for the benefits of initial U.S. ABTC membership to equal or exceed the costs of initially obtaining a U.S. ABTC by using the estimated savings per trip ($45) previously described. CBP estimates that a new, initial U.S ABTC applicant who is already enrolled in a CBP trusted traveler program will need to take a minimum of four trips between the United States and an APEC member economy over five years for the benefits of the U.S. ABTC Program to exceed the costs associated with joining the program.38 Accounting for the $45 in time savings per trip to an APEC member economy and the $7 in time savings by using a Global Entry kiosk for expedited CBP clearance upon returning to the United States from an APEC economy, CBP estimates that a new, initial U.S. ABTC applicant who is not already a CBP trusted traveler member will need to take a minimum of six trips between the United States and an APEC member economy over five years for the benefits of the U.S. ABTC Program to exceed the costs associated with joining the program and Global Entry.39 Current U.S. ABTC holders will need to take even fewer trips per year for the benefits of renewing their program memberships to outweigh the costs.

    38 (Rounded) $143 U.S. ABTC opportunity cost and fee/$45 savings per trip = 3.2 trips.

    39 (Rounded) $45 fast-track immigration clearance savings + $7 expedited CBP clearance savings from Global Entry = $52 U.S. ABTC holder savings; (Rounded) $274 U.S. ABTC and Global Entry opportunity cost and fees/$52 U.S. ABTC holder savings = 5.3 trips.

    B. The Regulatory Flexibility Act

    This section examines the impact of the rule on small entities as required by the Regulatory Flexibility Act (5 U.S.C. 601 et. seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people). Although this rule regulates people and not businesses, a U.S. citizen is required to be either a bona fide U.S. business person engaged in business in the APEC region or a U.S. Government official actively engaged in APEC business in order to qualify for a U.S. ABTC. Therefore, CBP has considered the impact of this rule on small entities.

    The U.S. ABTC Program is voluntary and has an initial application cost of approximately $144 if a U.S. ABTC applicant is a current member of a CBP trusted traveler program or approximately $275 if a U.S. ABTC applicant must concurrently apply for a U.S. ABTC and a CBP trusted traveler program. While the U.S. ABTC applicant will bear the cost associated with obtaining a U.S. ABTC, a business may voluntarily reimburse the applicant for the fee and his or her opportunity cost. CBP cannot estimate the number of small entities that will voluntarily reimburse its employees. CBP recognizes that it is possible that a substantial number of small entities will be impacted by this regulation. However, CBP does not believe an application cost of either $144 or $275, depending on whether a U.S. ABTC applicant is currently enrolled in a CBP trusted traveler program, constitutes a significant economic impact. Moreover, as previously discussed, each U.S. ABTC holder will save approximately 43 minutes, or approximately $45 in opportunity costs, per trip, while new, initial U.S. ABTC applicants who are not already CBP trusted traveler members will also save an additional 7 minutes on net, or $7 in opportunity costs, by using a Global Entry kiosk for expedited CBP clearance upon returning to the United States from an APEC economy. U.S. ABTC Program members can dedicate these time savings to productive, APEC business-related use. After approximately four or six trips to an APEC member economy, the benefits of an ABTC will exceed the full cost of obtaining a U.S. ABTC (fees + opportunity costs). CBP also notes that a one-time expense of $144 or $275, depending on whether the U.S. ABTC applicant is already enrolled in a CBP trusted traveler program, is a fraction of the cost of frequent trans-Pacific travel. Thus, CBP certifies this regulation will not have a significant economic impact on a substantial number of small entities. CBP received no public comments challenging this certification.

    C. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

    D. Executive Order 13132

    The rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

    E. Paperwork Reduction Act

    The collections of information in this document will be submitted for review by OMB in accordance with the requirements of the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1651-0121. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. The collections of information in these regulations are contained in Title 8, Part 235 of the CFR. The revisions to OMB clearance 1651-0121 for the U.S. ABTC Program application 40 reflect the following changes:

    40 Source: U.S. Department of Homeland Security, Customs and Border Protection. Supporting Statement for Paperwork Reduction Act Submission: 1651-0121, Trusted Traveler Programs and U.S. APEC Business Travel Card. September 2015. Available at http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201509-1651-002. Accessed March 29, 2016.

    U.S. ABTC Applications: 41

    41 CBP estimates that a total of 14,344 applicants will initially apply for U.S. ABTC Program membership each year (see “Executive Order 13563 and Executive Order 12866” section, Table 2— “Total Initial U.S. ABTC Applications” in FY 2017). However, as described in the “Executive Order 13563 and Executive Order 12866” section above, an estimated 4,652 of these applicants will already be current CBP trusted traveler program members, while 9,692 will not. Because the U.S. ABTC Program application requirements differ according to an applicant's CBP trusted traveler program membership status, the U.S. ABTC application time burdens for individuals will differ. The estimated 4,652 U.S. ABTC applicants who are already CBP trusted traveler program members will incur a time burden of 10 minutes to complete the U.S. ABTC self-certification and have their signature digitally captured at a CBP trusted traveler enrollment center for their U.S. ABTC application. These U.S. ABTC application estimates account for the 4,652 individuals who are already in a CBP trusted traveler program and their related U.S. ABTC application burdens. CBP considers the remaining additional burden to the 9,692 individuals who will concurrently apply for an initial U.S. ABTC and a CBP trusted traveler program membership in the following “Global Entry Applications” estimates. Additionally, CBP estimates that a total of 2,619 existing U.S. ABTC Program members will choose to renew their U.S. ABTC memberships and Global Entry memberships (if they were not already in a CBP trusted traveler program at the time of their initial ABTC application) (see “Executive Order 13563 and Executive Order 12866” section, Table 5— “Total U.S. ABTC Renewals” in FY 2017). For the purposes of this information collection, CBP includes the renewal figures in the overall U.S. ABTC application estimates because the burden for initial U.S. ABTC Program application and renewal are both assumed to be 10 minutes.

    Increase in estimated number of annual respondents: 1,643.

    Increase in estimated number of annual responses: 1,643.

    Estimated average time burden per response: 10 minutes (0.17 hours).

    Increase in estimated total annual time burden: 279 hours.

    Initial U.S. ABTC applicants who join Global Entry to meet a U.S. ABTC Program membership requirement increased the number of Global Entry applications and burden hours as follows:

    Global Entry Applications: 42

    42 Individuals interested in joining the U.S. ABTC Program who are not already CBP trusted traveler members will need to initially apply for a CBP trusted traveler program membership to meet one of the U.S. ABTC Program's membership requirements. CBP estimates that the 9,692 initial applicants who are not already in a CBP trusted traveler program will concurrently apply for the U.S. ABTC Program and CBP's Global Entry trusted traveler program, incurring a 40-minute time burden to complete the Global Entry application, complete the U.S. ABTC self-certification, schedule their required Global Entry enrollment interview, pay the program application fees, and have their signature digitally captured for the U.S. ABTC Program. These initial Global Entry application estimates account for the 9,692 individuals who are not already in a CBP trusted traveler program and their related U.S. ABTC application burdens.

    Increase in estimated number of annual respondents: 2,099.

    Increase in estimated number of annual responses: 2,099.

    Estimated average time burden per response: 40 minutes (0.67 hours).

    Increase in estimated total annual time burden: 1,407 hours.

    Approved U.S. ABTC members who joined Global Entry for their U.S. ABTC Program membership also increased the Global Entry kiosk usage rate and burden hours through their use of the kiosks for expedited CBP clearance upon returning to the United States from an APEC economy. The additional Global Entry kiosk burden hours directly resulting from the U.S. ABTC Program are as follows:

    Global Entry Kiosk Use: 43

    43 CBP now estimates that by the end of FY 2017, 24,520 individuals who were not already members of a CBP trusted traveler program will become joint members of the U.S. ABTC Program and Global Entry (see “Executive Order 13563 and Executive Order 12866” section, Table 4— “Number of Initial U.S. ABTC Applications Approved for Members Not Already in a CBP Trusted Traveler Program” in FY 2014-FY 2017). Due to data limitations, CBP assumes that these 24,520 U.S. ABTC Program members will use Global Entry kiosks twice per year as this is the minimum number of annual trips one of these members would have to take for the benefits of joining the U.S. ABTC Program to outweigh its costs. This translates to an additional 49,040 kiosk responses per year. These Global Entry kiosk use estimates account for the 49,040 kiosk responses and the related burdens.

    Increase in estimated number of annual respondents: 11,106.

    Increase in estimated number of annual responses: 22,212.

    Estimated average time burden per response: 1 minute (0.016 hours).

    Increase in estimated total annual time burden: 356 hours.

    F. Privacy

    DHS will ensure that all Privacy Act requirements and policies are adhered to in the implementation of this rule. In this regard, DHS has updated the Privacy Impact Assessment for the Global Enrollment System (GES) on November 1, 2016, which fully outlines processes to ensure compliance with Privacy Act protections relevant to this rule. See https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp-ges-november2016.pdf.

    VII. Authority

    This regulation is issued under the authority of 5 U.S.C. 301, 6 U.S.C. 112, 203 and 211, 8 U.S.C. 1103 and 19 U.S.C. 2, 66 and 1624, and Public Law 112-54.

    List of Subjects in 8 CFR Part 235

    Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements.

    Amendments to Regulations

    For the reasons set forth in the preamble, the IFR amending 8 CFR 103.7(b)(1)(ii)(N) and adding a new section 235.13, which was published at 79 FR 27161 on May 13, 2014, is adopted as final with the following changes:

    PART 235—INSPECTION OF PERSONS APPLYING FOR ADMISSION 1. The authority citation for part 235 continues to read as follows: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to E.O.13323, 69 FR 241, 3 CFR, 2004 Comp., p.278), 1201, 1224, 1225, 1226, 1228, 1365a note, 1365b, 1379, 1731-32; Title VII of Public Law 110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458); Public Law 112-54.
    § 235.13 [Amended]
    2. Amend § 235.13 as follows: a. In paragraph (c)(6), first sentence, remove the number “3” and add in its place the word “five” and remove the words “suspended or”; b. Revise the paragraph (f) subject heading to read “Denial and removal”; c. In paragraph (f)(2) introductory text, first sentence, remove the words “suspended or”; d. In paragraph (f)(3), first and second sentences, remove the words “suspension or”; e. In paragraph (f)(4), remove “, suspended,”; f. In paragraph (g)(1), remove all occurrences of the phrase “denial, suspension or removal” and add in its place “denial or removal” and remove the words “date of suspension or removal” and add in their place “date of removal”; g. In paragraph (g)(2), remove the phrase “denial, suspension or removal” and add in its place “denial or removal”; and h. In paragraph (h), second sentence, remove the words “suspended or”. Dated: November 17, 2016. Jeh Charles Johnson, Secretary.
    [FR Doc. 2016-28177 Filed 11-22-16; 8:45 am] BILLING CODE 9111-14-P
    FEDERAL RESERVE SYSTEM 12 CFR Part 209 [Regulation I; Docket No. R-1533] RIN 7100-AE 47 Federal Reserve Bank Capital Stock AGENCY:

    Board of Governors of the Federal Reserve System.

    ACTION:

    Final rule.

    SUMMARY:

    The Board of Governors (Board) is adopting, in final form and without change, an interim final rule amending Regulation I. The final rule establishes procedures for payment of dividends by the Federal Reserve Banks (Reserve Banks) to implement the provisions of section 32203 of the “Fixing America's Surface Transportation Act.” The final rule sets out the dividend rates applicable to Reserve Bank depository institution stockholders and amends provisions of Regulation I regarding treatment of accrued dividends when a Reserve Bank issues or cancels Federal Reserve Bank capital stock.

    DATES:

    This final rule is effective on January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Evan Winerman, Counsel (202-872-7578), Legal Division; or Kimberly Zaikov, Financial Project Leader (202/452-2256), Reserve Bank Operations and Payments Systems Division. Users of Telecommunication Device for Deaf (TDD) only, call (202) 263-4869.

    SUPPLEMENTARY INFORMATION:

    I. Overview

    Regulation I governs the issuance and cancellation of capital stock by the Reserve Banks. Under section 5 of the Federal Reserve Act 1 and Regulation I,2 a member bank must subscribe to capital stock of the Reserve Bank of its district in an amount equal to six percent of the member bank's capital and surplus. The member bank must pay for one-half of this subscription on the date that the Reserve Bank approves its application for capital stock, while the remaining half of the subscription shall be subject to call by the Board.3

    1 12 U.S.C. 287.

    2 12 CFR 209.4(a).

    3 12 U.S.C. 287 and 12 CFR 209.4(c)(2).

    Prior to January 1, 2016, all member banks were entitled to a six percent dividend on their paid-in capital stock. As of January 1, 2016, the “Fixing America's Surface Transportation Act” (“FAST Act”) 4 amended section 7(a)(1) of the Federal Reserve Act 5 to provide that stockholders with more than $10 billion in total consolidated assets shall receive a dividend on paid-in capital stock equal to the lesser of six percent and “the rate equal to the high yield of the 10-year Treasury note auctioned at the last auction held prior to the payment of such dividend,” while stockholders with $10 billion or less in total consolidated assets shall continue to receive a six percent dividend. The FAST Act also provides that the Board must adjust the $10 billion threshold for total consolidated assets annually to reflect the change in the Gross Domestic Product Price Index, published by the Bureau of Economic Analysis.

    4 Public Law 114-94, 129 Stat. 1312 (2015). See https://www.congress.gov/114/bills/hr22/BILLS-114hr22enr.pdf/.

    5 12 U.S.C. 289(a)(1).

    On February 24, 2016, the Board published an interim final rule and request for comment in the Federal Register (81 FR 9082) that amends Regulation I to implement section 32203 of the FAST Act. The interim final rule allowed the Reserve Banks to continue their practice of making semi-annual dividend payments, although at a new rate for larger institutions.

    In addition, Regulation I contains provisions with respect to the treatment of accrued dividends when a Reserve Bank issues new stock or cancels existing stock. These Regulation I provisions implement portions of sections 5, 6, and 9 of the Federal Reserve Act, which were not amended by the FAST Act. Section 5 provides that (1) when a Reserve Bank issues new shares to a stockholder, the stockholder must pay the Reserve Bank for accrued dividends at a monthly rate of one-half of one percent from the last dividend and, correspondingly, (2) when a stockholder reduces or liquidates its holding of Reserve Bank stock, the Reserve Bank must pay the stockholder for accrued dividends at a monthly rate of one-half of one percent from the last dividend. Similarly, sections 6 and 9(10) of the Federal Reserve Act state that, when a member bank becomes insolvent or voluntarily withdraws from Reserve Bank membership, the Reserve Bank shall pay accrued dividends on the bank's cancelled stock at a monthly rate of one-half of one percent. Prior to the amendments published in the interim final rule, Regulation I adopted the approach described in sections 5, 6, and 9(10) of the Federal Reserve Act, providing in §§ 209.4(d) and 209.4(e)(1) that dividends for subscriptions to, and cancellations of, Reserve Bank stock shall accrue at a monthly rate of one-half of one percent. As discussed below, the interim final rule adjusted the accrued dividend rates for larger institutions to be consistent with the rate adopted in the FAST Act.

    II. Summary of Comments Received and Final Rule A. Public Comments

    The Board received nine comments on the interim final rule: One from a trade association representing commercial banks; one from a small commercial bank; and seven from individual members of the public. The trade association and the commercial bank expressed concerns regarding Congress's decision to lower the statutory dividend rate for banks with more than $10 billion in total consolidated assets, while other commenters supported Congress's decision. None of the commenters suggested specific changes to the text of the interim final rule.

    B. Description of Final Rule 1. Dividend Payment Rate

    Like the interim final rule, the final rule amends Regulation I to include a new paragraph, § 209.4(e), addressing the rate for dividend payments by the Reserve Banks. Section 209.4(e)(1)(i) implements the FAST Act provision requiring that banks with more than $10 billion in total consolidated assets receive a dividend on their Reserve Bank capital stock at an annual rate of the lesser of six percent and the high yield of the 10-year Treasury note auctioned at the last auction held prior to the payment of the dividend. Section 209.4(e)(1)(ii) provides that banks with $10 billion or less in total consolidated assets will continue to receive a dividend at an annual rate of six percent. Section 209.4(e)(3) provides that dividends are cumulative, as required by section 7 of the Federal Reserve Act.

    Section 209.4(e)(2) provides that each dividend “will be adjusted to reflect the period from the last dividend payment date to the current dividend payment date according to the dividend proration basis.” Section 209.1(d)(2) in turn defines “dividend proration basis” as “the use of a 360-day year of 12 30-day months for purposes of computing dividend payments.” Thus, under the interim final rule, a semi-annual dividend payment to a stockholder with $10 billion or less in total consolidated assets continues to be calculated as three percent of paid-in capital. A semi-annual dividend payment to a stockholder with more than $10 billion in total consolidated assets would be calculated as the lesser of three percent or one-half of the high yield of the 10-year Treasury note auctioned at the last auction held prior to the payment of the dividend.

    2. Payment of Accrued Dividends for Subscriptions to Reserve Bank Stock

    Section 5 of the Federal Reserve Act requires that member banks subscribe to new stock of the appropriate Reserve Bank whenever the member bank increases its own capital stock, so as to maintain an investment in Federal Reserve Bank stock equal to 3 percent of the member bank's capital and surplus. Banks also become member banks throughout the year.

    As discussed above, section 5 of the Federal Reserve Act provides that, when a stockholder subscribes to new capital stock, it must pay for accrued dividends on that new stock at a monthly rate of one-half of one percent from the last dividend (i.e., a monthly rate derived from a six percent annual rate). Prior to the amendments published in the interim final rule, Regulation I adopted the same approach. This requirement ensures that the stockholder will not be overcompensated at the next dividend payment, because the stockholder has paid in advance for the portion of the stockholder's next dividend payment attributable to the period for which the member bank did not own the stock.

    Although section 5 of the Federal Reserve Act continues to provide that a stockholder should pay for accrued dividends at a monthly rate of one-half of one percent from the last dividend, section 7 of the Federal Reserve Act now provides that stockholders with more than $10 billion in total consolidated assets will receive an annual dividend at the lesser of six percent and the high yield of the 10-year Treasury note auctioned at the last auction held prior to the payment of the dividend. Applying sections 5 and 7 literally could cause a larger stockholder to overpay for accrued dividends if it paid at a rate based on a six percent annual rate but received its next dividend payment at an annual rate below six percent (assuming the high yield of the 10-year Treasury note at the applicable auction was below six percent).

    Like the interim final rule, the final rule reconciles the conflict between sections 5 and 7 of the Federal Reserve Act by requiring that a stockholder with more than $10 billion in total consolidated assets pay for accrued dividends at an annual rate of the lesser of six percent and the high yield of the 10-year Treasury note auctioned at the last auction held prior to the previous dividend payment date (that is, the rate used for the previous dividend payment to stockholders with more than $10 billion in total consolidated assets), prorated to cover the period between the last dividend payment date and the date of subscription. This approach allows a larger stockholder to pay for accrued dividends at a rate that is generally close to the dividend rate the stockholder will earn at the next dividend payment. This approach also resolves the statutory conflict in favor of giving effect to the most recent Congressional act regarding the payment of dividends as provided in the FAST Act. Conversely, the interim final rule provided that stockholders with $10 billion or less in total consolidated assets will continue to pay for accrued dividends at an annual rate of six percent (prorated to cover the period between the last dividend payment date and the date of subscription), as those stockholders will continue to receive a six percent annual dividend. This approach is adopted in the final rule without change.

    The final rule also provides at § 209.4(c)(3) for an adjustment at the next annual dividend if a stockholder pays for accrued dividends at a rate that is different from the annualized rate that the stockholder ultimately receives at the next scheduled dividend payment date. This adjustment equals the difference between the accrued dividends the stockholder paid for the additional subscription and the portion of the next dividend payment attributable to that additional subscription, prorated to cover the period from the last dividend payment date to the subscription date.

    3. Payment of Accrued Dividends for Cancellations of Reserve Bank Stock

    Section 5 of the Federal Reserve Act requires that a member bank seek redemption of its Federal Reserve Bank stock as the capital of the member bank declines, so as to maintain an investment in Federal Reserve Bank stock equal to 3 percent of the member bank's capital and surplus. Banks also relinquish membership throughout the year.

    As discussed above, three provisions of the Federal Reserve Act (sections 5, 6, and 9(10)) state that, when a Reserve Bank cancels stock, the Reserve Bank shall pay the stockholder for accrued dividends at a monthly rate of one-half of one percent from the last dividend (i.e., a monthly rate derived from a six percent annual rate). Prior to the amendments published in the interim final rule, Regulation I adopted the same approach. Sections 5, 6, and 9(10) of the Federal Reserve Act now conflict with section 7 of the Federal Reserve Act, which provides (following passage of the FAST Act) that stockholders with more than $10 billion in total consolidated assets will receive an annual dividend at the lesser of six percent and the high yield of the 10-year Treasury note auctioned at the last auction held prior to the payment of the dividend.

    The final rule reconciles sections 5, 6, and 9(10) of the Federal Reserve Act with section 7 of the Federal Reserve Act by requiring the Reserve Banks to pay accrued dividends to stockholders with more than $10 billion of total consolidated assets at an annual rate of the lesser of six percent and the high yield of the 10-year Treasury note auctioned at the last auction held prior to the date of cancellation, prorated to cover the period between the last dividend payment date and the date of cancellation. As noted above, this approach also resolves the statutory conflict between sections 5, 6, and 9(10), on the one hand, and section 7 on the other, in favor of the most recent Congressional act regarding dividends expressed in the FAST Act. Conversely, the final rule provides that, when a Reserve Bank cancels stock of a stockholder with $10 billion or less in total consolidated assets, the Reserve Bank will pay the stockholder for accrued dividends at an annual rate of six percent (prorated to cover the period between the last dividend payment date and the date of cancellation), as those stockholders will continue to receive a six percent annual dividend.

    4. Total Consolidated Assets: Definition and Inflation Adjustment

    The dividend rate to which a stockholder is entitled under Section 7 of the Federal Reserve Act (as amended by the FAST Act) depends on the stockholder's “total consolidated assets.” The final rule amends Regulation I to include a new paragraph, § 209.1(d)(3), that generally defines total consolidated assets by reference to total assets reported on the stockholder's most recent December 31 Consolidated Report of Condition and Income (Call Report).6 When a bank joins the Federal Reserve System or when a member bank merges with another entity and the surviving bank continues to be a Reserve Bank stockholder, the bank may have never filed a year-end call report, or its most recent year-end call report may not accurately reflect the institution's size. Accordingly, the new member bank or the surviving bank must report whether its total consolidated assets exceed $10 billion in its application for capital stock, which would be shortly after the transaction or the date that the bank becomes a member bank. To that end, the final rule amends § 209.2(a) to require that a bank seeking to join the Federal Reserve System report whether its total consolidated assets exceed $10 billion in its application for capital stock. Similarly, the final rule adds a new paragraph, § 209.3(d)(3), that requires a surviving bank to report whether its total consolidated assets exceed $10 billion when it submits its next application for additional capital stock.

    6 The Board has also moved, without revision, the definition of “capital stock and surplus” to the definitions in new § 209.1(d).

    Section 7(a)(1)(C) of the Federal Reserve Act (added by the FAST Act) requires that the Board make an annual inflation adjustment to the total consolidated asset threshold that determines the dividend rate to which a Reserve Bank is entitled. The final rule implements this provision at § 209.4(f). The Board expects to make this adjustment using the final second quarter estimate of the Gross Domestic Product Price Index for each year, published by the Bureau of Economic Analysis.

    III. Regulatory Analysis A. Regulatory Flexibility Act Analysis

    In accordance with section 604 of the Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601 et seq., the Board is publishing a final regulatory flexibility analysis for the final rule. The RFA generally requires an agency to assess the impact a rule is expected to have on small entities. Under size standards established by the Small Business Administration, banks and other depository institutions are considered “small” if they have less than $550 million in assets.7 The RFA requires an agency either to provide a regulatory flexibility analysis or to certify that the final rule will not have a significant economic impact on a substantial number of small entities.

    7 13 CFR 121.201.

    The final rule implements amendments to the Federal Reserve Act that provide that Reserve Bank stockholders with more than $10 billion in total consolidated assets will receive a dividend at an annual rate equal to the lower of six percent and the high yield of the 10-year Treasury note auctioned at the last auction held prior to the payment of such dividend (with such dividend prorated to cover the period between the last dividend payment date and the current dividend payment date). The final rule also provides that, if a Reserve Bank cancels stock of a stockholder with more than $10 billion in total consolidated assets, the Reserve Bank will pay the stockholder accrued dividends at an annual rate of the lesser of six percent and the high yield of the most recent 10-year Treasury note auction held prior to the date of cancellation, prorated to cover the period between the last dividend payment date and the cancellation date. Finally, the final rule provides that, if a Reserve Bank issues new stock to a stockholder with more than $10 billion in total consolidated assets, the stockholder will pay accrued dividends on such stock at an annual rate of the lesser of six percent and the high yield of the most recent 10-year Treasury note auction held prior to the previous dividend payment date (prorated to cover the period between the last dividend payment date and the subscription date). The next regular dividend payment to that stockholder would be adjusted to account for the difference between the rate at which the stockholder paid for accrued dividends and the rate at which the stockholder receives the regular dividend payment.

    Under the final rule, Reserve Bank stockholders with $10 billion or less in total consolidated assets will continue to receive a dividend on their Reserve Bank stock at an annual rate of six percent (prorated to cover the period between the last dividend payment and the current dividend payment). If a Reserve Bank issues new stock to, or cancels existing stock of, a stockholder with $10 billion or less in total consolidated assets, the stockholder or the Reserve Bank would (respectively) continue to pay accrued dividends on such stock at an annual rate of six percent (prorated to cover the period between the last dividend payment date and the subscription date or the cancellation date). Additionally, the final rule continues to allow Reserve Banks to pay dividends semiannually to all stockholders, including banks with $10 billion or less in total consolidated assets. The Board received no public comments in response to the initial regulatory flexibility analysis, nor did it receive comments from the Chief Counsel for Advocacy of the Small Business Administration.

    The only new requirement that the final rule imposes on stockholders with $10 billion or less in total consolidated assets is that such a stockholder must report whether its total consolidated assets exceed $10 billion when the stockholder applies for (1) new capital stock upon joining the Federal Reserve System or (2) additional capital stock upon merging with another entity. Excluding these two situations, a Reserve Bank will determine the total consolidated assets of all stockholders by reference to the stockholder's most recent December 31 Call Report. The final rule requires the Board to make an annual inflation adjustment to the $10 billion total consolidated asset threshold.

    As noted above, a depository institution is “small” for purposes of the RFA if it has less than $550 million of assets. The final rule has no effect on small institutions. The Board expects that existing banks and banks that are in the process of organization can readily calculate their total consolidated assets to know if they are a large institution covered by the amendments. The Board currently requires that a bank file an application form with the Reserve Bank in whose district it is located if the bank wishes to join the Federal Reserve System or if the bank must increase or decrease its holding of Reserve Bank stock.8 The Board is revising these forms to require that, when a bank applies for membership or applies for new stock after merging with another entity, the bank report whether its total consolidated assets exceed $10 billion.

    8See FR 2030 (application for capital stock for organizing national banks); FR 2030A (application for capital stock for nonmember state banks that are converting to national banks); FR 2083A (application for capital stock by state banks (except mutual savings banks) and national banks that are converting to state banks); FR 2083B (application for capital stock by mutual savings banks); FR 2056 (application for adjustment in holding of Reserve Bank stock).

    The RFA requires a description of why the agency rejected any significant alternatives that would have affected the impact of the rule on small entities. In this circumstance, there is no feasible alternative to requiring that a bank in the process of organization report whether its total consolidated assets exceed $10 billion when it applies to join the System, because such banks will not have filed a Call Report before applying for membership. With respect to measuring the total consolidated assets of a surviving bank after a merger, the Reserve Banks could alternatively (1) refer to the total assets reported by the surviving bank on its most recent December 31 Call Report or (2) add the total assets of the surviving bank and the nonsurviving bank as reported on each bank's most recent December 31 Call Report. These alternative approaches to measuring total consolidated assets in the merger context would reduce the reporting burden on small entities, but they would not provide timely and accurate notice to a Reserve Bank of whether a merger has caused a surviving bank's total consolidated assets to exceed $10 billion. The Board believes that requiring surviving banks to report whether total consolidated assets exceed $10 billion when they apply for additional capital stock is a minimal reporting burden of an amount that is known by the banks and serves the intent of the FAST Act.

    B. Paperwork Reduction Act Analysis

    In accordance with section 3512 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers are 7100-0042 and 7100-0046. The Board reviewed the final rule under the authority delegated to the Board by OMB. The final rule contains requirements subject to the PRA. The reporting requirements are found in §§ 209.2(a) and 209.3(d)(3). The Board received no comments on the PRA analysis in the interim final rule.

    The Board has a continuing interest in the public's opinions of collections of information. At any time, comments regarding the burden estimate, or any other aspect of this collection of information, including suggestions for reducing the burden, may be sent to: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551. A copy of the comments may also be submitted to the OMB desk officer (1) by mail to U.S. Office of Management and Budget, 725 17th Street NW., 10235, Washington, DC 20503; (2) by facsimile to 202-395-6974; or (3) by email to: [email protected], Attention, Federal Reserve Board Agency Desk Officer.

    Proposed Revisions, With Extension for Three Years, of the Following Information Collections

    (1) Title of Information Collection: Applications for Subscription to, Adjustment in Holding of, and Cancellation of Federal Reserve Bank Stock.

    Agency Form Number: FR 2030, FR 2030a, FR 2056, FR 2086, FR 2086a, FR 2087.

    OMB Control Number: 7100-0042.

    Frequency of Response: On occasion.

    Affected Public: Businesses or other for-profit.

    Respondents: National, State Member, and Nonmember banks.

    Abstract: These application forms are required by the Federal Reserve Act and Regulation I. These forms must be used by a new or existing member bank (including a national bank) to request the issuance, and adjustment in, or cancellation of Federal Reserve Bank stock. The forms must contain certain certifications by the applicants, as well as certain other financial and shareholder data that is needed by the Federal Reserve to process the request.

    Current Actions: The dividend rate to which a Reserve Bank stockholder is entitled under section 7 of the Federal Reserve Act (as amended by the FAST Act) depends on the stockholder's “total consolidated assets.” Section 209.2(a) requires a bank to report whether its total consolidated assets exceed $10 billion when it applies for membership in the Federal Reserve System. Section 209.3(d)(3) requires a bank to report whether its total consolidated assets exceed $10 billion when it applies for additional capital stock after merging with another entity. The Board is proposing to revise FR 2030, FR 2030a, and FR 2056 to require that a bank report whether its total consolidated assets exceed $10 billion when it applies to join the Federal Reserve System or applies for additional capital stock after merging with another entity. The proposed revisions would increase the estimated average hours per response for FR 2030 and FR 2030a by half an hour. The proposed revisions would increase the estimated average hours per response for FR 2056 by one quarter of an hour. The Board is not proposing to revise FR 2086, FR 2086A, and FR 2087. The draft reporting forms are available on the Board's public Web site at http://www.federalreserve.gov/apps/reportforms/review.aspx.

    Estimated annual reporting hours: FR 2030: 4 hours; FR 2030a: 2 hours; FR 2056: 1,000 hours; FR 2086: 5 hours; FR 2086a: 40 hours; FR 2087: 1 hour.

    Estimated average hours per response: FR 2030: 1 hour; FR 2030a: 1 hour; FR 2056: 0.75 hours; FR 2086: 0.5 hours; FR 2086a: 0.5 hours; FR 2087: 0.5 hours.

    Number of respondents: FR 2030: 4; FR 2030a: 2; FR 2056: 1,333; FR 2086: 10; FR 2086a: 79; FR 2087: 1.

    (2) Title of Information Collection: Application for Membership in the Federal Reserve System.

    Agency Form Number: FR 2083, FR 2083A, FR 2083B, and FR 2083C.

    OMB Control Number: 7100-0046.

    Frequency of Response: On occasion.

    Affected Public: Businesses or other for-profit.

    Respondents: Newly organized banks that seek to become state member banks, or existing banks or savings institutions that seek to convert to state member bank status.

    Abstract: The application for membership is a required one-time submission that collects the information necessary for the Federal Reserve to evaluate the statutory criteria for admission of a new or existing state bank into membership in the Federal Reserve System. The application collects managerial, financial, and structural data.

    Current Actions: The dividend rate to which a Reserve Bank stockholder is entitled under Section 7 of the Federal Reserve Act (as amended by the FAST Act) depends on the stockholder's “total consolidated assets.” Section 209.2(a) requires a bank to report whether its total consolidated assets exceed $10 billion when it applies for membership in the Federal Reserve System. The Board is proposing to revise FR 2083A and FR 2083B to require that a bank report whether its total consolidated assets exceed $10 billion when it applies to join the Federal Reserve System. The proposed revisions would increase the estimated average hours per response by half an hour. The Board is not proposing to revise FR 2083 or FR 2083C. The draft reporting forms are available on the Board's public Web site at http://www.federalreserve.gov/apps/reportforms/review.aspx. The estimated annual reporting hours listed below, and the estimated average hours per response, are cumulative totals for FR 2083, FR 2083A, FR 2083B, and FR 2083C.

    Estimated annual reporting hours: 207 hours.

    Estimated average hours per response: 4.5 hours.

    Number of respondents: 46.

    List of Subjects in 12 CFR Part 209

    Banks and banking, Federal Reserve System, Reporting and recordkeeping requirements, Securities.

    PART 209—FEDERAL RESERVE BANK CAPITAL STOCK (REGULATION I)

    Accordingly, the interim final rule amending 12 CFR part 209, which was published at 81 FR 9082 on February 24, 2016, is adopted as a final rule without change.

    By order of the Board of Governors of the Federal Reserve System, November 18, 2016. Robert deV. Frierson, Secretary of the Board.
    [FR Doc. 2016-28231 Filed 11-22-16; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 902 50 CFR Part 660 [Docket No. 140905757-6999-02] RIN 0648-BE42 Fisheries Off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Commercial Sablefish Fishing Regulations and Electronic Fish Tickets AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This final rule revises fishery monitoring and equipment requirements for all commercial groundfish fisheries. In particular, it establishes a requirement for submitting electronic fish tickets (EFT) in the limited entry fixed gear fisheries and open access fisheries. This final rule also: revises administrative procedures for limited entry permits, providing greater flexibility and efficiencies for limited entry groundfish fishery participants; requires vessels registered to Vessel Monitoring Systems (VMS) to make an initial declaration report; and makes administrative changes and clarifying edits to improve consistency of the regulations with past Pacific Fishery Management Council (Council) actions and with the Pacific Coast Groundfish Fishery Management Plan (FMP). This action improves monitoring and administration of the limited entry sablefish primary fishery, and addresses unforeseen issues arising out of the evolution of commercial sablefish fisheries and subsequent regulations.

    DATES:

    This rule is effective December 23, 2016, except for the amendments to § 660.212(a)(3) through (5) and § 660.312(a)(3) through (5), which will be effective January 1, 2017.

    ADDRESSES:

    Background information and documents are available at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/. NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which is summarized in the Classification section of this final rule. Copies of the FRFA and the Small Entity Compliance Guide are available from William W. Stelle, Jr., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; or by phone at 206-526-6150. Copies of the Small Entity Compliance Guide are also available on the West Coast Regional Office Web site at http://www.westcoast.fisheries.noaa.gov/.

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to William W. Stelle, Jr., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, and to OMB by email to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Gretchen Hanshew, 206-526-6147, [email protected]

    SUPPLEMENTARY INFORMATION:

    Summary of Major Actions

    This final rule improves the timeliness and accuracy of sablefish catch reporting in the limited entry fixed gear fisheries and open access fisheries, provides more flexibility and efficiencies for harvesters in the Shorebased Individual Fishing Quota (IFQ) Program and limited entry fixed gear fisheries, and implements several administrative and clarifying changes to monitoring and permitting provisions of regulations for all of the limited entry and open access commercial groundfish fisheries on the West Coast.

    This final rule contains eight major actions, along with related minor clarifications and non-substantive changes. The first action is a new requirement for electronic fish tickets to be submitted for all commercial landings of sablefish delivered to Washington, Oregon and California fish buyers. The second action provides qualified vessel owners an opportunity to apply for an exemption to the ownership limitation of three permits in the limited entry sablefish primary fishery. The third action allows a single vessel to be simultaneously (jointly) registered to multiple limited entry permits, one of which may have a trawl gear endorsement. The fourth action prohibits vessels that have been granted an at-sea processing exemption for sablefish in the limited entry fixed gear fishery from processing sablefish at sea when that vessel is participating in the Shorebased IFQ Program. The fifth action clarifies that, consistent with FMP Amendment 6, sablefish catch in incidental open access fisheries is counted against the open access allocation, and is not deducted from the commercial harvest guideline. The sixth action requires any vessel that has a VMS registered with NMFS Office of Law Enforcement (OLE) to submit a declaration report with OLE. The seventh action updates and simplifies equipment requirements for electronic fish tickets. The eighth action clarifies existing regulatory language prohibiting the retention of groundfish species taken in the limited entry fixed gear fishery beyond the allowable quota. In addition, the action includes housekeeping changes that are intended to better align the regulations with defined terms, and to provide clarity and consistency between paragraphs.

    Background

    The groundfish fisheries in the exclusive economic zone (EEZ) off the west coast of the United States are managed under the FMP. The FMP was prepared by the Pacific Fishery Management Council (Council) under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) as amended by the Consolidated Appropriations Act of 2004 (Pub. L. 108-199, section 801). Regulations implementing provisions of the FMP are located at 50 CFR part 660, subparts C through G.

    This final rule includes several actions that revise regulations for commercial fisheries that harvest sablefish. These regulatory changes apply to the Shorebased IFQ Program, the limited entry fixed gear fishery, which includes the limited entry sablefish primary fishery and the daily trip limit (DTL) fishery, and the open access fishery. A more detailed description of the fisheries affected by this rulemaking, and the major provisions of this action, is contained in the June 1, 2016, proposed rule (81 FR 34947).

    1. Electronic Fish Ticket Requirement

    This final rule includes a Federal electronic fish ticket submittal requirement for all commercial groundfish deliveries that include sablefish. An electronic fish ticket is a web-based form used to send groundfish landing data to the Pacific States Marine Fisheries Commission (PSMFC). Electronic fish tickets are used to collect information similar to the information required in state fish receiving tickets or landing receipts (henceforth referred to as paper tickets), but do not replace or change any state requirements. This requirement will improve the timeliness and accuracy of catch data for monitoring harvest relative to applicable tier limits in the limited entry fixed gear sablefish fishery and trip limits in the limited entry fixed gear and open access DTL fisheries. Electronic fish tickets have been required for IFQ species since the start of the Shorebased IFQ Program in 2011, and have allowed vessel owners/operators, buyers and dealers, and fishery managers timely access to catch information. This final rule expands the use of electronic fish tickets to the limited entry fixed gear and open access fisheries, and is expected to have similar benefits regarding timely access to catch data.

    2. Exemption to Limited Entry Sablefish Permit Ownership Limitation

    Regulations (§ 660.25(b)(3)(iv)(C)) state that no individual person, partnership, or corporation in combination may have ownership interest in or hold more than three permits with sablefish endorsements either simultaneously or cumulatively over the primary season (hereby referred to as “ownership limitation”). This ownership limitation was intended to prevent concentration of harvest privileges in the Pacific coast sablefish primary fishery. However, this restriction has led to unforeseen complications because many persons, partnerships and corporations have harvest privileges in both the Alaska IFQ sablefish fishery and the Pacific coast sablefish fishery. Under the existing regulations, Alaska IFQ holders are required to have a partial ownership interest in a vessel that fishes for their IFQ. These IFQ holders are deemed to hold any Pacific Coast permits with sablefish endorsements associated with a vessel in which they have an ownership interest. This has resulted in Alaska IFQ holders being “limited out” in the Pacific Coast sablefish primary fishery, even though they do not benefit from the permits associated with the vessels in which they have an interest. The Council recommended, and NMFS is implementing through this final rule, a process by which vessel owners who meet certain qualifying criteria may petition NMFS for a limited exemption to the ownership limitation, as described in detail in the preamble to the proposed rule

    3. Joint Registration

    Originally, the license limitation program (LLP), implemented through Amendment 6 to the FMP (57 FR 54001, November 16, 1992, see also the EA under ADDRESSES for more information on the LLP), allowed vessels to register both a trawl and fixed gear (longline and fishpot) endorsed permit at the same time. Subsequently, regulations were modified and no longer allow vessels to register multiple limited entry permits unless the permits are sablefish-endorsed and stacked for use in the limited entry fixed gear sablefish primary fishery. This restriction was put in place to keep trawl and fixed gear fisheries temporally separated to meet enforcement and monitoring needs. In 2004, a vessel monitoring program was implemented that allowed vessels to identify which fishery they were participating in through a declaration system, which eliminated the need for temporal separation. As part of FMP Amendment 20 trailing actions, in April 2012 the Council recommended that vessels registered to a limited entry trawl permit be allowed to simultaneously register to a limited entry fixed gear permit, also called “joint registration.” This final rule implements joint registration and clarifies how fishery-specific regulations still apply to vessels that are jointly registered. Joint registration is permitted in one of two configurations, which are described in additional detail in the June 1, 2016, proposed rule (81 FR 34947):

    (1) Configuration A: One trawl permit and one, two, or three sablefish endorsed permits.

    (2) Configuration B: One trawl permit and one limited entry fixed gear permit.

    Registering a vessel to a limited entry permit with a specific endorsement often triggers certain requirements in the groundfish regulations. Joint registration is not intended to change fishing operations of groundfish fisheries or change requirements that are applicable to vessels because of the type of the endorsement(s) on the limited entry permit to which they are registered, unless otherwise described above and in the June 1, 2016, proposed rule (81 FR 34947).

    4. Restrictions on At-Sea Processing of Sablefish

    Processing of groundfish at-sea is prohibited for vessels fishing in the Shorebased IFQ Program or limited entry fixed gear fishery, unless exempted from that prohibition. One such exemption applies to certain vessels fishing in the limited entry fixed gear sablefish primary fishery. Those exempted vessels may freeze sablefish at-sea during the limited entry fixed gear sablefish primary fishery.

    When trawl rationalization was implemented in 2011, the Council recommended that at-sea processing of groundfish in the Shorebased IFQ Program be prohibited, with limited exemptions. Regulations at § 660.112 (b)(1)(xii) prohibit at-sea processing of groundfish, and also list the exemptions that have been granted to date, including an exemption from the prohibition of at-sea processing that applies in the sablefish primary fishery. As written, those regulations grant vessels with an exemption from the prohibition of at-sea processing in the sablefish primary fishery when fishing in the Shorebased IFQ Program. However, regulations at § 660.25(b)(6)(i) only allow the sablefish at-sea processing exemption when the vessel is registered to a sablefish-endorsed limited entry permit.

    Currently, because vessels cannot be registered to a sablefish-endorsed limited entry permit and a trawl-endorsed permit at the same time, Shorebased IFQ vessels cannot take advantage of the sablefish at-sea processing exemption. However, this rule's joint registration provisions would allow a vessel to register to a trawl endorsed and a sablefish endorsed limited entry permit simultaneously. If the exemption at § 660.112(b)(1)(xii)(B) is not removed, joint registration could allow vessels with an exemption from the at-sea processing prohibition for the sablefish primary fishery to also process sablefish at sea in the Shorebased IFQ Program. Consistent with the Council's recommendation, this rule removes the exemption to the prohibition of at-sea processing (at § 660.112(b)(1)(xii)(B)) that extended the limited entry fixed gear exemption in § 660.25(b)(6)(i) to vessels fishing sablefish in the Shorebased IFQ Program. Also, in light of joint registration, a clarifying sentence is added to § 660.25(b)(6)(i), stating that the at-sea processing exemption only applies to at-sea processing of sablefish caught in the limited entry fixed gear sablefish primary fishery.

    During development of this rule, NMFS noted that a similar situation as the one described above may occur with the exemption from the processing-at-sea prohibition for non-whiting groundfish. When a vessel with a non-whiting exemption from that prohibition in the Shorebased IFQ Program is jointly registered, it could utilize that exemption when fishing in non-IFQ fisheries. NMFS proposed a clarifying sentence at § 660.25(b)(6)(ii), stating that the exemption only applies to processing non-whiting groundfish caught in the Shorebased IFQ Program, which is consistent with the Council's recommendation under joint registration with regards to the sablefish at-sea processing exemption. NMFS requested public comment on this issue, and received none. Therefore, the clarifying addition to § 660.25(b)(6)(ii) is included in this final rule. This final rule implements joint registration and does not allow at-sea processing of non-whiting groundfish in non-IFQ fisheries, as the exemption was granted to vessels participating in the Shorebased IFQ Program.

    5. Sablefish Allocations North of 36 ° N. lat.

    The allocation structure for sablefish north of 36° N. lat. was established in FMP Amendment 6. In April 2009, the Council recommended final preferred intersector allocations for groundfish species under Amendment 21. The Council and NMFS recommended that no change be made to the Amendment 6 allocation structure for sablefish. However, FMP Amendment 21 and its implementing regulations slightly changed the process for allocating sablefish north of 36° N. lat. (75 FR 60868, October 1, 2010). This final rule includes regulations aligning sablefish north of 36° N. lat. allocations with the Amendment 6 allocation structure, as recommended by the Council in 2009, and as described in the June 1, 2016 proposed rule (81 FR 34947).

    6. Declaration Reports for Vessels Registered to a VMS Unit

    In 2004, the Council and NMFS implemented a vessel monitoring program. Since 2004, all commercial fishing vessels that take and retain groundfish in federal waters, or transit through federal waters with groundfish on board, are required to have a working VMS. The VMS, along with a system of fishing declaration reporting requirements, allows for monitoring and enforcement of areas closed to fishing. With this 2004 program, NMFS type-approved hardware and software, or “units,” were installed on vessels in order to meet these new program requirements for the groundfish fishery. When a VMS unit is installed on a vessel, it is registered with NMFS OLE and catalogued.

    There are a number of VMS units that have registered with OLE but those vessels have never made a declaration report. This final rule includes regulation changes at § 660.13(d) that require all vessels registered to a VMS unit to submit a declaration report. Vessels registered to a VMS unit are required to submit a declaration report, regardless of fishing activities. Obtaining a declaration report from these vessels will give OLE the information necessary to monitor the activities of these vessels relative to the applicable regulations. This final rule also revises fisher declarations at § 660.13(d)(5)(iv)(A)(24) to include “other.” This category will include on-the-water activities that may not be fishing (e.g., scientific research activities). NMFS anticipates vessels may make a declaration of “other” if they are not fishing.

    7. Equipment Requirements for Electronic Fish Tickets

    As described in the proposed rule, a new interface has been developed that uses the internet for both entry and submission of electronic fish ticket data. The changes to regulations at § 660.15(d) in this rule reflect the move to a web-based electronic fish ticket for all first receivers. Note that an internet connection is necessary for all steps for completion of an electronic fish ticket, from creating the new ticket through submission. To reflect these changes, the definition of “electronic fish ticket” at § 660.11 is also revised to reflect the web-based form used to send electronic fish ticket information to the PSMFC.

    8. Prohibitions Regarding “Take and Retain”

    NMFS is replacing “taking, retaining” with “taking and retaining,” consistent with the Council's recommendations under PCGFMP Amendment 14 and described in the 2016 proposed rule. With the exception of the sablefish primary fishery, in commercial groundfish fisheries vessels may “take” more than a single cumulative trip limit of a species while fishing for other species, but they may not retain any species above its cumulative trip limit. The phrase “taking, retaining” in this context is not clear. Therefore, to better align prohibitions for enforcing trip limits with the definition of “trip limit,” to improve enforceability of trip limit prohibitions, and to bring consistency to regulations that apply to commercial groundfish fisheries, prohibitions at §§ 660.12(a)(6), 660.212(a)(2), and 660.212(d)(1) and (2) are revised from “take, retain” to “take and retain.”

    9. Related Minor Clarifications and Non-Substantive Changes

    There are several outdated regulations, mis-specified cross-references, inconsistencies in terminology, and areas in need of clarification throughout the groundfish regulations that pertain to commercial sablefish fishing. For the reasons stated in the proposed rule, this rule implements all of the updates, corrections, clarifications and non-substantive edits described in the proposed rule.

    Response to Comments

    During the comment period of the proposed rule, NMFS received two comment letters from participants in the fishing industry in support of the proposed regulation changes to allow joint registration of trawl and non-trawl permits and the limited exemption from ownership limitation restrictions. NMFS also received a letter of comment regarding VMS equipment requirements on board fishing vessels, which are not revised in this rule, are outside the scope of this action, and, therefore, are not discussed further here. NMFS addresses other comments below:

    Comment 1: Information on an electronic fish ticket will not immediately become available to quota managers because the data will need to be entered by data entry personnel who do not work over the weekend.

    Response: This is an automated system, and availability of submitted electronic fish ticket data does not rely on action by system administrators. Upon submission of the electronic fish ticket by first receivers, catch information is immediately available to vessel operators, enforcement, and federal and state fishery managers.

    Comment 2: The time requirement for submitting a fish ticket under the new regulation is inconsistent with some California state fish ticket and transport ticket regulations.

    Response: California Department of Fish and Wildlife is in the process of developing a monitoring system that incorporates electronic tickets. While the electronic fish tickets required by this provision contain similar information as submitted on state tickets, it does not replace or change the state requirements (§ 660.11). Furthermore, any vessels participating in federal fisheries are subject to federal regulations (§ 660.2).

    Comment 3: NMFS should acknowledge that interruption of internet service, equipment failures, etc. may make electronic fish tickets impractical.

    Response: NMFS has implemented a system in which a web browser on any electronic device can be used to create and submit electronic fish tickets. Therefore, even allowing for possible, temporary interruptions in service or equipment problems, 24 hours is deemed an appropriate amount of time to complete the fish ticket.

    Comment 4: In some situations, the fish have been both landed and transported by the vessel operator, and no paperwork has been completed because the fish buyer has not yet taken possession of them.

    Response: The trigger for written documentation of the landing is not the point at which the fish buyer or the first receiver takes possession of the fish. Written documentation of the fish offloaded from a vessel is required once the fish are removed from the vessel. Any fish removed from a vessel is considered a “landing,” per the definition at § 660.11. If the fish removed from the vessel will not have an electronic fish ticket submitted prior to transport, the fish must be accompanied by a dock ticket (or a transportation ticket for vessels landing into California) with the information needed to complete the electronic fish ticket, per regulations at §§ 660.213 and 660.313. It is the responsibility of the vessel operator or other person taking possession of the fish upon landing to comply with the requirements to complete the dock ticket or transportation ticket.

    Comment 5: Regulations for the landing of fish and requirements of the new rule will unfairly impact first receivers that are not located at a processing plant.

    Response: Regulations implemented in this rule were explicitly drafted to address the fact that some first receivers are not located at processing plants, by allowing for use of dock tickets. If the first receiver is taking possession of fish outside of regular business hours, a co-signed dock ticket meets the need for documentation of agreement between the first receiver and vessel operator regarding the specifics of the landing. The dock ticket must include the electronic fish ticket number, which can be generated remotely via any device with a web browser and internet connection (e.g., mobile phone), and the rest of the fish ticket can be completed and submitted from dock ticket data within 24 hours.

    Comment 6: The requirement of electronic fish tickets will cause hardship to first receivers that must purchase and maintain the hardware and software needed to submit electronic fish tickets.

    Response: The improved timeliness of catch data will increase the ability to manage the fishery to the benefit of all participants, offsetting the cost of equipment needed to complete electronic fish tickets. The electronic ticket portal is web-based, and can be accessed from any electronic device (such as a computer, tablet, or mobile phone) with an internet browser, allowing for increased accessibility with multiple ways to meet reporting requirements. NMFS notes that requirements for electronic fish ticket submission will include the ability of first receivers to request a temporary waiver from these requirements, enabling them to submit paper tickets on a temporary basis. Temporary waivers will be granted on a case-by-case basis by NMFS, per regulations at §§ 660.213 and 660.313.

    Comment 7: Those responsible for filling out fish tickets may not have the training and technical knowledge to do so, and may be assisted by fishermen or others as is currently done for paper tickets.

    Response: NMFS is providing a written compliance guide, and PSMFC staff will be available to provide training to help ensure that all first receivers are able to perform the duties required in this rule. See ADDRESSES for details on where to find these materials. Also, even though the first receiver must sign the fish ticket, regulations implemented in this final rule do not prohibit a first receiver from seeking technical assistance from a third party.

    Changes From the Proposed Rule

    The electronic fish ticket requirements in the proposed and final rule offer a new, more flexible option that allows for vessels fishing in the sablefish primary fishery to apportion their sablefish from a single landing against multiple tier limits (if the vessel is registered to multiple sablefish endorsed permits), or against their the remainder of their tier limit(s) and applicable daily trip limits. During development of the proposed rule, it was thought that the electronic fish ticket system requirements were such that, in these situations, separate and distinct electronic fish tickets would need to be filled out and submitted for each part of the landing. For example, the first ticket for the delivery would document the sablefish pounds counting toward “Permit 13, Tier 2” and a second ticket for the same delivery would document the sablefish pounds counting toward “Permit 21, Tier 3.” Therefore, if a vessel operator chose to apportion their sablefish as described above, proposed regulations required multiple fish tickets to be filled out. Each fish ticket is estimated to take approximately 10 minutes to complete and submit.

    Since publication of the proposed rule, there has been further exploration of how to document portions of a single sablefish delivery against either multiple tier limits or against both tier limits and DTL limits without having to duplicate some of the information by requiring submittal of multiple electronic fish tickets. A mechanism has been developed that allows catch of sablefish to be apportioned within a single electronic fish ticket when a vessel operator wishes to take advantage of the flexibility to apportion sablefish catch between permits (i.e., among sablefish tiers associated with the permits registered for use with the vessel) or between fisheries (i.e., among sablefish tiers harvested in the sablefish primary fishery and the DTL fishery). Utilizing this updated approach in the electronic fish ticket system, the requirement included in the proposed rule at § 660.213(e)(2)(iii) to submit multiple electronic fish tickets for a single delivery is unnecessary.

    Therefore, in this final rule, NMFS is removing the requirement at § 660.213(e)(2)(iii) to submit multiple electronic fish tickets when a vessel operator wishes to take advantage of the flexibility to apportion sablefish catch between permits or between fisheries (as described above). This final rule provides vessel operators with the same flexibilities and gives fishery managers the same permit and landing information as the proposed regulations. However, the regulations at § 660.213(e)(2)(iii) in this final rule are anticipated to relieve first receivers of some of the recordkeeping and reporting burden by slightly reducing the total number of electronic fish tickets required. As noted above, it is unknown how many vessel operators in the sablefish primary fishery will elect to use this new flexibility, therefore it is not possible to estimate exactly how much time may be saved by first receivers. However, this change from the proposed rule relieves a restriction, and is anticipated to benefit vessel operators and first receivers.

    The second change from the proposed rule pertains to the definition of “sablefish landing” included in that rule at §§ 660.211 and 660.311. The proposed rule would have required electronic fish tickets be submitted by first receivers of all the groundfish on board the vessel if that groundfish included any amount of sablefish. During development of the final rule, it became apparent that given the definition of “sablefish landing” the proposed rule language could be interpreted as requiring a first receiver of fish from a landing that included sablefish to submit an electronic fish ticket regardless of whether that first receiver was buying any sablefish. If a scenario arose where the sablefish landing were divided, all of the sablefish were sold to one first receiver, and the rest of the groundfish were sold to a second first receiver, the second first receiver, who did not take possession of any sablefish, would be required to submit an electronic fish ticket for those non-sablefish groundfish species. This would be because as proposed, the electronic fish ticket requirement would have applied to any “sablefish landing,” or any landing that includes any amount of sablefish harvested in the limited entry fixed gear fishery. “Landing” is defined at § 660.11 and means the transfer or offloading of fish from any vessel. Once transfer of fish begins, all fish aboard the vessel are counted as part of the landing. Therefore, all the fish on board the vessel, even if sold to multiple first receivers, are all counted as part of the same landing. Therefore, a vessel meets the definition of having a “sablefish landing” when they have any amount of sablefish on board and begins the transfer of any fish from the vessel. In the above described situation, under proposed electronic fish ticket regulations and the definition of “sablefish landing,” both of the first receivers of fish from the sablefish landing would be required to submit an electronic fish ticket, regardless of whether the first receiver is taking possession of any amount of sablefish.

    The Council's recommendation was to capture all of the landings of sablefish for more accurate and timely accounting of sablefish harvest against applicable limits in the limited entry fixed gear and open access fisheries. Implementing an electronic fish ticket requirement for first receivers of non-sablefish groundfish deliveries was not intended and does not meet this purpose. Therefore, the proposed definitions of “sablefish landing” (as included in the proposed rule at §§ 660.211 and 660.311) are not included in this final rule.

    Instead, regulations at §§ 660.212 and 660.312 are revised to clarify that, if the landing is split, only the portion of the landing (or a delivery/offload) that includes some amount of sablefish must be reported on an electronic fish ticket. With this revision, first receivers of a delivery that includes any amount of sablefish must report that entire delivery (both sablefish and non-sablefish groundfish) on an electronic fish ticket. First receivers of a delivery that does not include any sablefish would not be required to report via electronic fish ticket. These revisions better align with the Council's intent to improve the timeliness of sablefish catch data.

    Classification

    NMFS has determined that this action is consistent with the FMP, the Magnuson Stevens Conservation and Management Act, and other applicable laws.

    The Office of Management and Budget (OMB) has determined that this action is not significant for purposes of Executive Order 12866.

    Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) was prepared and incorporates the initial regulatory flexibility analysis (IRFA). A summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments, and a summary of the analyses completed to support the action are included below. NMFS also prepared a Regulatory Impact Review (RIR) for this action. A copy of the RIR/FRFA is available from NMFS (see ADDRESSES). A summary of the FRFA, per the requirements of 5 U.S.C. 604(a) follows:

    The Small Business Administration (SBA) has established size criteria for all major industry sectors in the US, including fish harvesting and fish processing businesses. A business primarily involved in finfish harvesting 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 $20.5 million for all its affiliated operations worldwide (13 CFR part 121; August 17, 2015). For commercial shellfish harvesters, the other qualifiers apply and the receipts threshold is $5.5 million. For other commercial marine harvesters, for-hire businesses, and marinas, the other qualifiers apply and the receipts threshold is $7.5 million. A business primarily involved in seafood processing 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 employment not in excess of 500 employees for all its affiliated operations worldwide. For seafood dealers/wholesalers, the other qualifiers apply and the employment threshold is 100 employees. A small organization is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Small governmental jurisdictions are governments of cities, counties, towns, townships, villages, school districts, or special districts, with populations less than 50,000.

    On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (North American Industry Classification System or NAICS 11411) for Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in all NMFS rules subject to the RFA after July 1, 2016, in place of the U.S. SBA standards (described above) of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry.

    Pursuant to the RFA, and prior to July 1, 2016, an initial regulatory flexibility analysis was developed for this regulatory action using SBA's size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the harvesting entities directly regulated by this regulatory action were considered small under the SBA's size standards, and continue to be considered small under the new NMFS standard. Thus, NMFS has determined that the new size standard does not affect analyses prepared for this regulatory action.

    No significant issues were raised during public comment, and no changes were made as a result of public comments.

    An estimated 99 entities are potentially impacted by this rule, including 77 receivers and up to 22 vessels/permit holding entities. All of these entities are considered small according to both the SBA guidelines and the new NMFS standards described above. This rule is not anticipated to have a substantial or significant economic impact on small entities, or place small entities at a disadvantage to large entities.

    Addition of an exemption to the ownership limitation and joint registration are expected to positively benefit directly impacted small entities.

    It is assumed that all first receivers have access to a personal computer or other hardware/device. However, to reduce the potential impacts on first receivers should there be a system failure, a waiver may be granted by NMFS that temporarily exempts a first receiver from the reporting requirements and allow reasonable time to resolve the electronic fish ticket system problem. The duration of the waiver will be determined on a case-by-case basis. First receivers that are granted a temporary waiver from the requirement to submit electronic fish tickets must submit on paper the same data as are required on electronic fish tickets within 24 hours of the date received during the period that the waiver is in effect.

    Implementation of an electronic fish ticket improves the accuracy and timeliness of landing data and provides managers with the real time data necessary to do inseason management of the primary and daily trip limit (DTL) fisheries. It also provides enforcement with the permit-specific landings data necessary to monitor overages in the primary (tier) and DTL sablefish fisheries, and could aid in enforcement of the owner-on-board requirement.

    There are no significant alternatives to the rule that accomplish the stated objectives of applicable statutes and that minimize any of the significant economic impact of the final rule on small entities. However, Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule. The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all limited entry permit owners and holders, and all persons and entities that have requested information on groundfish management actions (i.e., persons and entities on the West Coast groundfish email list serve), and will be posted on the NMFS West Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/. With regards to new electronic fish ticket requirements, outreach and compliance guidance will also be available through the Pacific States Marine Fisheries Commission at http://pacfin.psmfc.org/.

    Paperwork Reduction Act

    This final rule contains the implementation of a Federal requirement for an electronic fish ticket to capture essential fishery catch data for commercial non-trawl sablefish fisheries (every commercial fishery landing that includes any amount of sablefish) in a timely manner, which is a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). With regards to electronic fish tickets, this requirement has been approved by OMB as a new OMB collection (OMB collection 0648-0738). The public reporting burden is estimated to average 10 minutes per response. With regards to the ownership limitation exemption, this requirement has been approved by OMB as OMB collection 0648-0737. The public reporting burden is estimated to be 45 minutes per response. Send comments on the burden estimates or any other aspects of the collection of information to West Coast Region at the ADDRESSES above, by email to [email protected], or by fax to (202) 395-7285.

    Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

    The PRA (44 U.S.C. 3507) requires that agencies inventory and display a current control number assigned by the Director, Office of Management and Budget (OMB), for each agency information collection. § 902.1(b) identifies the location of NOAA regulations for which OMB approval numbers have been issued. Because this final rule adds requirements for scale test report recording and maintenance, § 902.1(b) is revised to reference correctly the section resulting from this final rule.

    List of Subjects 15 CFR Part 902

    Reporting and recordkeeping requirements.

    50 CFR Part 660

    Fisheries, Fishing, and Indian fisheries.

    Dated: November 15, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR part 660 are amended as follows:

    Title 15—Commerce and Foreign Trade PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS 1. The authority citation for part 902 continues to read as follows: Authority:

    44 U.S.C. 3501 et seq.

    2. In § 902.1, in the table in paragraph (b), under the entry “50 CFR”, revise the entries for “660.13”, “660.15”, “660.17”, “660.25”, “660.113”, and “660.140” to read as follows:
    § 902.1 OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    (b) * * *

    CFR part or section where the information collection requirement is located Current OMB
  • control No.
  • (all numbers begin with 0648-)
  • *    *    *    *    * 50 CFR: *    *    *    *    * 660.13 -0573, -0619, and -0738. *    *    *    *    * 660.15 -0619 and -0738. *    *    *    *    * 660.17 -0619 and -0738. *    *    *    *    * 660.25 -0203, -0620, and -0737. *    *    *    *    * 660.113 -0271, -0573, -0618, -0619, and -0737. *    *    *    *    * 660.140 -0593, -0619, -0620, and -0737. *    *    *    *    *
    Title 50—Wildlife and Fisheries PART 660—FISHERIES OFF WEST COAST STATES 1. The authority citation for part 660 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

    2. In § 660.11: a. Revise the definitions for “Base permit” and “Electronic fish ticket”; b. Add in alphabetical order the definition for “Joint registration”; c. Remove the definition for “Stacking”; and d. Add in alphabetical order the definition for “Stacking or stacked”.

    The revisions and additions read as follows:

    § 660.11 General definitions.

    Base permit means a sablefish-endorsed limited entry permit described at § 660.25(b)(3)(i), subpart C, registered for use with a vessel that meets the permit length endorsement requirements appropriate to that vessel, as described at § 660.25(b)(3)(iii), subpart C.

    Electronic fish ticket means a web-based form that is used to send landing data to the Pacific States Marine Fisheries Commission. Electronic fish tickets are used to collect information similar to the information required in state fish receiving tickets or landing receipts, but do not replace or change any state requirements.

    Joint registration or jointly registered means simultaneously registering both trawl-endorsed and longline or trap/pot-endorsed limited entry permits for use with a single vessel in one of the configurations described at § 660.25(b)(4)(iv).

    Stacking or stacked means registering more than one sablefish-endorsed limited entry permit for use with a single vessel (See § 660.25(b)(4)(iii), subpart C).

    3. In § 660.12, revise paragraph (a)(6) to read as follows:
    § 660.12 General groundfish prohibitions.

    (a) * * *

    (6) Take and retain, possess, or land more than a single cumulative limit of a particular species, per vessel, per applicable cumulative limit period, except for sablefish taken in the primary limited entry, fixed gear sablefish season from a vessel authorized to fish in that season, as described at § 660.231, subpart E.

    4. In § 660.13, revise paragraph (d) introductory text and paragraphs (d)(5)(ii) and (iii) and (d)(5)(iv)(A)(24) to read as follows:
    § 660.13 Recordkeeping and reporting.

    (d) Declaration reporting requirements—When the operator of a vessel registers a VMS unit with NMFS OLE, the vessel operator must provide NMFS with a declaration report as specified at paragraph (d)(5)(iv) of this section. The operator of any vessel that has already registered a VMS unit with NMFS OLE but has not yet made a declaration, as specified at paragraph (d)(5)(iv) of this section, must provide NMFS with a declaration report upon request from NMFS OLE.

    (5) * * *

    (ii) A declaration report will be valid until another declaration report revising the existing gear or fishery declaration is received by NMFS OLE. The vessel operator must send a new declaration report before leaving port on a trip that meets one of the following criteria:

    (A) A gear type that is different from the gear type most recently declared for the vessel will be used, or

    (B) A vessel will fish in a fishery other than the fishery most recently declared.

    (iii) During the period of time that a vessel has a valid declaration report on file with NMFS OLE, it cannot fish with a gear other than a gear type declared by the vessel or fish in a fishery other than the fishery most recently declared.

    (iv) * * *

    (A) * * *

    (24) Other, or

    5. In § 660.15, revise paragraphs (a) and (d) to read as follows:
    § 660.15 Equipment requirements.

    (a) Applicability. This section contains the equipment and operational requirements for scales used to weigh catch at sea, scales used to weigh catch at IFQ first receivers, hardware and software for electronic fish tickets, and computer hardware for electronic logbook software. Unless otherwise specified by regulation, the operator or manager must retain, for 3 years, a copy of all records described in this section and make the records available upon request to NMFS staff or an authorized officer.

    (d) Electronic fish tickets. First receivers are required to meet the hardware and software requirements below.

    (1) Hardware and software requirements. A personal computer system, tablet, mobile device, or other device that has software (e.g. web browser) capable of submitting information over the internet, such that submission to Pacific States Marine Fisheries Commission can be executed effectively.

    (2) Internet access. The first receiver is responsible for maintaining internet access sufficient to access the web-based interface and submit completed electronic fish ticket forms.

    (3) Maintenance. The first receiver is responsible for ensuring that all hardware and software required under this subsection are fully operational and functional whenever they receive, purchase, or take custody, control, or possession of groundfish species for which an electronic fish ticket is required. “Functional” means that the software requirements and minimum hardware requirements described at paragraphs (d)(1) and (2) of this section are met and submission to Pacific States Marine Fisheries Commission can be executed effectively by the equipment.

    (4) Improving data quality. Vessel owners and operators, first receivers, or shoreside processor owners, or managers may contact NMFS to request assistance in improving data quality and resolving issues. Requests may be submitted to: Attn: Electronic Fish Ticket Monitoring, National Marine Fisheries Service, West Coast Region, Sustainable Fisheries Division, 7600 Sand Point Way, NE., Seattle, WA 98115.

    6. In § 660.25: a. Revise paragraph (b)(1)(v); b. Remove paragraph (b)(3)(iv)(B); c. Redesignate paragraph (b)(3)(iv)(C) as (b)(3)(iv)(B); d. Revise newly redesignated paragraphs (b)(3)(iv)(B)(3) and (4); e. Add new paragraph (b)(3)(iv)(C); f. Revise paragraphs (b)(3)(v), (b)(4) introductory text, (b)(4)(i)(D), and (b)(4)(iii); g. Redesignate paragraphs (b)(4)(iv) through (b)(4)(ix) as (b)(4)(v) through (b)(4)(x); h. Add a new paragraph (b)(4)(iv); i. Revise newly redesignated paragraphs (b)(4)(v)(A) and (B), (b)(4)(vi)(A) and (B), and (b)(4)(vii)(A); and j. Revise (b)(6).

    The revisions and additions read as follows:

    § 660.25 Permits.

    (b) * * *

    (1) * * *

    (v) Initial administrative determination (IAD). SFD will make a determination regarding permit endorsements, renewal, replacement, change in permit ownership and change in vessel registration. SFD will notify the permit owner in writing with an explanation of any determination to deny a permit endorsement, renewal, replacement, change in permit ownership or change in vessel registration. The SFD will decline to act on an application for permit endorsement, renewal, replacement, or change in registration of a limited entry permit if the permit is subject to sanction provisions of the Magnuson-Stevens Act at 16 U.S.C. 1858(a) and implementing regulations at 15 CFR part 904, subpart D, apply.

    (3) * * *

    (iv) * * *

    (B) * * *

    (3) A partnership or corporation will lose the exemptions provided in paragraphs (b)(3)(iv)(B)(1) and (2) of this section on the effective date of any change in the corporation or partnership from that which existed on November 1, 2000. A “change” in the partnership or corporation is defined at § 660.11. A change in the partnership or corporation must be reported to SFD within 15 calendar days of the addition of a new shareholder or partner.

    (4) Any partnership or corporation with any ownership interest in a limited entry permit with a sablefish endorsement or in the vessel registered to the permit shall document the extent of that ownership interest with NMFS via the Identification of Ownership Interest Form sent to the permit owner through the annual permit renewal process and whenever a change in permit owner, vessel owner, and/or vessel registration occurs as described at paragraph (b)(4)(v) and (vi) of this section. NMFS will not renew a sablefish-endorsed limited entry permit through the annual renewal process described at paragraph (b)(4)(i) of this section, or approve a change in permit owner, vessel owner, and/or vessel registration unless the Identification of Ownership Interest Form has been completed. Further, if NMFS discovers through review of the Identification of Ownership Interest Form that an individual person, partnership, or corporation owns or holds more than 3 permits and is not authorized to do so under paragraph (b)(3)(iv)(B)(2) of this section, the individual person, partnership or corporation will be notified and the permits owned or held by that individual person, partnership, or corporation will be void and reissued with the vessel status as “unidentified” until the permit owner owns and/or holds a quantity of permits appropriate to the restrictions and requirements described in paragraph (b)(3)(iv)(B)(2) of this section. If NMFS discovers through review of the Identification of Ownership Interest Form that a partnership or corporation has had a change in membership since November 1, 2000, as described in paragraph (b)(3)(iv)(B)(3) of this section, the partnership or corporation will be notified, NMFS will void any existing permits, and reissue any permits owned and/or held by that partnership or corporation in “unidentified” status with respect to vessel registration until the partnership or corporation is able to register ownership of those permits to persons authorized under this section to own sablefish-endorsed limited entry permits.

    (C) Ownership limitation exemption. As described in (b)(3)(iv)(B) of this section, no individual person, partnership, or corporation in combination may own and/or hold more than three sablefish-endorsed permits. A vessel owner that meets the qualifying criteria described in paragraph (b)(3)(iv)(C)(1) of this section may request an exemption from the ownership limitation.

    (1) Qualifying criteria. The three qualifying criteria for an ownership limitation exemption are: The vessel owner currently has no more than 20 percent ownership interest in a vessel registered to the sablefish endorsed permit, the vessel owner currently has ownership interest in Alaska sablefish individual fishing quota, and the vessel has fished in the past 12-month period in both the West Coast groundfish limited entry fixed gear fishery and the Sablefish IFQ Program in Alaska. The best evidence of a vessel owner having met these qualifying criteria will be state fish tickets or landing receipts from the West Coast states and Alaska. The qualifying vessel owner may seek an ownership limitation exemption for sablefish endorsed permits registered to no more than two vessels.

    (2) Application and issuance process for an ownership limitation exemption. The SFD will make the qualifying criteria and application instructions available online at www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html. A vessel owner who believes that they may qualify for the ownership limitation exemption must submit evidence with their application showing how their vessel has met the qualifying criteria described at paragraph (b)(3)(iv)(C)(1) of this section. The vessel owner must also submit a Sablefish Permit Ownership Limitation Exemption Identification of Ownership Interest form that includes disclosure of percentage of ownership in the vessel and disclosure of individual shareholders in any entity. Paragraph (i) of this section sets out the relevant evidentiary standards and burden of proof. Applications may be submitted at any time to NMFS at: NMFS West Coast Region, Sustainable Fisheries Division, ATTN: Fisheries Permit Office—Sablefish Ownership Limitation Exemption, 7600 Sand Point Way NE., Seattle, WA 98115. After receipt of a complete application, the SFD will issue an IAD in writing to the applicant determining whether the applicant qualifies for the exemption. If an applicant chooses to file an appeal of the IAD, the applicant must follow the appeals process outlined at paragraph (g) of this section and, for the timing of the appeals, at paragraph (g)(4)(ii) of this section.

    (3) Exemption status. If at any time a change occurs relative to the qualifying criteria described at paragraph (b)(3)(iv)(C)(1), the vessel owner to whom the ownership limitation exemption applies must notify NMFS within 30 calendar days. If such changes mean the vessel owner no longer meets the qualifying criteria, the ownership limitation exemption becomes automatically null and void 30 calendar days after the date the vessel owner no longer meets the qualifying criteria. At any time, NMFS may request that the vessel owner submit a new exemption application. If NMFS at any time finds the vessel owner no longer meets the qualifying criteria described at paragraph (b)(3)(iv)(C)(1) of this section NMFS will issue an IAD, which may be appealed, as described at paragraph (g) of this section.

    (v) MS/CV endorsement. An MS/CV endorsement on a trawl limited entry permit conveys a conditional privilege that allows a vessel registered to it to fish in either the coop or non-coop fishery in the MS Coop Program described at § 660.150, subpart D. The provisions for the MS/CV-endorsed limited entry permit, including eligibility, renewal, change of permit ownership, vessel registration, combinations, accumulation limits, fees, and appeals are described at § 660.150. Each MS/CV endorsement has an associated catch history assignment (CHA) that is permanently linked as originally issued by NMFS and which cannot be divided or registered separately to another limited entry trawl permit. Regulations detailing this process and MS/CV-endorsed permit combinations are outlined in § 660.150(g)(2), subpart D.

    (4) Limited entry permit actions—renewal, combination, stacking, joint registration, change of permit owner or vessel owner, and change in vessel registration—

    (i) * * *

    (D) Limited entry permits with sablefish endorsements, as described at paragraph (b)(3)(iv) of this section, will not be renewed until SFD has received complete documentation of permit ownership as required under paragraph (b)(3)(iv)(B)(4) of this section.

    (iii) Stacking limited entry permits. “Stacking” limited entry permits, as defined at § 660.11, refers to the practice of registering more than one sablefish-endorsed permit for use with a single vessel. Only limited entry permits with sablefish endorsements may be stacked. Up to 3 limited entry permits with sablefish endorsements may be registered for use with a single vessel during the sablefish primary season described at § 660.231, subpart E. Privileges, responsibilities, and restrictions associated with stacking permits to fish in the sablefish primary fishery are described at § 660.231, subpart E and at paragraph (b)(3)(iv) of this section.

    (iv) Joint registration of limited entry permits—(A) General. “Joint registration” of limited entry permits, as defined at § 660.11, is the practice of simultaneously registering both trawl-endorsed and longline or trap/pot-endorsed limited entry permits for use with a single vessel.

    (B) Restrictions. Subject to vessel size endorsements in paragraph (b)(3)(iii), any limited entry permit with a trawl endorsement and any limited entry permit with a longline or trap/pot endorsement may be jointly registered for use with a single vessel but only in one of the following configurations:

    (1) a single trawl-endorsed limited entry permit and one, two or three sablefish-endorsed fixed gear (longline and/or fishpot endorsed) limited entry permits; or

    (2) a single trawl-endorsed limited entry permit and one longline-endorsed limited entry permit for use with a single vessel.

    (v) * * *

    (A) General. Change in permit owner and/or vessel owner applications must be submitted to NMFS with the appropriate documentation described at paragraphs (b)(4)(viii) and (ix) of this section. The permit owner may convey the limited entry permit to a different person. The new permit owner will not be authorized to use the permit until the change in permit owner has been registered with and approved by NMFS. NMFS will not approve a change in permit owner for a limited entry permit with a sablefish endorsement that does not meet the ownership requirements for such permit described at paragraph (b)(3)(iv)(B) of this section. NMFS will not approve a change in permit owner for a limited entry permit with an MS/CV endorsement or an MS permit that does not meet the ownership requirements for such permit described at § 660.150(g)(3), and § 660.150(f)(3), respectively. NMFS considers the following as a change in permit owner that would require registering with and approval by NMFS, including but not limited to: Selling the permit to another individual or entity; adding an individual or entity to the legal name on the permit; or removing an individual or entity from the legal name on the permit. A change in vessel owner includes any changes to the name(s) of any or all vessel owners, as registered with USCG or a state. The new owner(s) of a vessel registered to a limited entry permit must report any change in vessel ownership to NMFS within 30 calendar days after such change has been registered with the USCG or a state licensing agency.

    (B) Effective date. The change in permit ownership or change in the vessel holding the permit will be effective on the day the change is approved by NMFS, unless there is a concurrent change in the vessel registered to the permit. Requirements for changing the vessel registered to the permit are described at paragraph (b)(4)(vi) of this section.

    (vi) * * *

    (A) General. A permit may not be used with any vessel other than the vessel registered to that permit. For purposes of this section, a permit change in vessel registration occurs when, through SFD, a permit owner registers a limited entry permit for use with a new vessel. Permit change in vessel registration applications must be submitted to SFD with the appropriate documentation described at paragraph (b)(4)(viii) of this section. Upon receipt of a complete application, and following review and approval of the application, the SFD will reissue the permit registered to the new vessel. Applications to change vessel registration on limited entry permits with sablefish endorsements will not be approved until SFD has received complete documentation of permit ownership as described at paragraph (b)(3)(iv)(B)(4) and as required under paragraph (b)(4)(viii) of this section. Applications to change vessel registration on limited entry permits with trawl endorsements or MS permits will not be approved until SFD has received complete EDC forms as required under § 660.114, subpart D.

    (B) Application. Change in vessel registration applications must be submitted to NMFS with the appropriate documentation described at paragraphs (b)(4)(viii) and (ix) of this section. At a minimum, a permit owner seeking to change vessel registration of a limited entry permit shall submit to NMFS a signed application form and his/her current limited entry permit before the first day of the cumulative limit period in which they wish to fish. If a permit owner provides a signed application and current limited entry permit after the first day of a cumulative limit period, the permit will not be effective until the succeeding cumulative limit period. NMFS will not approve a change in vessel registration until it receives a complete application, the existing permit, a current copy of the USCG 1270, and other required documentation.

    (vii) * * *

    (A) General. A permit owner may designate the vessel registration for a permit as “unidentified,” meaning that no vessel has been identified as registered for use with that permit. No vessel is authorized to use a permit with the vessel registration designated as “unidentified.” A vessel owner who removes a permit from his vessel and registers that permit as “unidentified” is not exempt from VMS requirements at § 660.14, unless specifically authorized by that section. When a permit owner requests that the permit's vessel registration be designated as “unidentified,” the transaction is not considered a change in vessel registration for purposes of this section. Any subsequent request by a permit owner to change from the “unidentified” status of the permit in order to register the permit with a specific vessel will be considered a change in vessel registration and subject to the restriction on frequency and timing of changes in vessel registration.

    (6) At-sea processing exemptions—(i) Sablefish at-sea processing exemption. No new applications for sablefish at-sea processing exemptions will be accepted. As specified at § 660.212(d)(3), subpart E, vessels are prohibited from processing sablefish at sea that were caught in the sablefish primary fishery without a sablefish at-sea processing exemption. Any sablefish at-sea processing exemptions were issued to a particular vessel and that permit and vessel owner who requested the exemption. The exemption is not part of the limited entry permit. The exemption cannot be registered with any other vessel, vessel owner, or permit owner for any reason. The exemption only applies to at-sea processing of sablefish caught in the sablefish primary fishery. The sablefish at-sea processing exemption will expire upon registration of the vessel to a new owner or if the vessel is totally lost, as defined at § 660.11.

    (ii) Non-whiting at-sea processing exemption. No new applications for non-whiting at-sea processing exemptions will be accepted. As specified at § 660.112(b)(1)(xii), subpart D, vessels are prohibited from processing non-whiting groundfish at sea that were caught in the Shorebased IFQ Program without a non-whiting at-sea processing exemption. Any non-whiting at-sea processing exemptions were issued to a particular vessel and that permit and/or vessel owner who requested the exemption. The exemption is not part of the limited entry permit. The exemption is not transferable to any other vessel, vessel owner, or permit owner for any reason. The exemption only applies to at-sea processing of non-whiting groundfish caught in the Shorebased IFQ Program. The non-whiting at-sea processing exemption will expire upon registration of the vessel to a new owner or if the vessel is totally lost, as defined at § 660.11.

    7. In § 660.55, revise paragraph (f) introductory text and paragraphs (h)(1) and (2) to read as follows:
    § 660.55 Allocations.

    (f) Catch accounting. Catch accounting refers to how the catch in a fishery is monitored against the allocations described in this section. For species with trawl/nontrawl allocations, catch of those species are counted against the trawl/nontrawl allocations as explained in paragraph (f)(1) of this section. For species with limited entry/open access allocations in a given biennial cycle, catch of those species are counted against the limited entry/open access allocations as explained in paragraph (f)(1)(ii) of this section.

    (h) * * *

    (1) Tribal/nontribal allocation. The sablefish allocation to Pacific coast treaty Indian tribes is identified at § 660.50(f)(2). The remainder is available to the nontribal fishery (limited entry, open access (directed and incidental), and research).

    (2) Between the limited entry and open access fisheries. The allocation of sablefish after tribal deductions is further reduced by the estimated total mortality of sablefish in research and recreational fisheries; the remaining yield (commercial harvest guideline) is divided between open access and limited entry fisheries. The limited entry fishery allocation is 90.6 percent of the commercial harvest guideline. The open access allocation is 9.4 percent of the commercial harvest guideline and includes incidental catch in non-groundfish fisheries, or incidental open access.

    8. In § 660.60: a. Revise paragraphs (h)(7) introductory text, (h)(7)(i) introductory text, (h)(7)(ii)(A), (h)(7)(ii)(B)(1) introductory text, and (h)(7)(ii)(B)(2); and b. Add paragraphs (h)(7)(ii)(B)(3) and (h)(7)(iii).

    The revisions and additions read as follows:

    § 660.60 Specifications and management measures.

    (h) * * *

    (7) Crossover provisions. Crossover provisions apply to three activities: Fishing on different sides of a management line, or fishing in both the limited entry and open access fisheries, or fishing in both the Shorebased IFQ Program and the limited entry fixed gear fishery. NMFS uses different types of management areas for West Coast groundfish management, such as the north-south management areas as defined in § 660.11. Within a management area, a large ocean area with northern and southern boundary lines, trip limits, seasons, and conservation areas follow a single theme. Within each management area, there may be one or more conservation areas, defined at §§ 660.11 and 660.70 through 660.74. The provisions within this paragraph apply to vessels fishing in different management areas. Crossover provisions also apply to vessels that fish in both the limited entry and open access fisheries, or that use open access non-trawl gear while registered to limited entry fixed gear permits. Crossover provisions also apply to vessels that are jointly registered, as defined at § 660.11, fishing in both the Shorebased IFQ Program and the limited entry fixed gear fishery during the same cumulative limit period. Fishery specific crossover provisions can be found in subparts D through F of this part.

    (i) Fishing in management areas with different trip limits. Trip limits for a species or a species group may differ in different management areas along the coast. The following crossover provisions apply to vessels fishing in different geographical areas that have different cumulative or “per trip” trip limits for the same species or species group, with the following exceptions. Such crossover provisions do not apply to: IFQ species (defined at § 660.140(c), subpart D) for vessels that are declared into the Shorebased IFQ Program (see § 660.13(d)(5)(iv)(A), for valid Shorebased IFQ Program declarations); species that are subject only to daily trip limits; or to trip limits for black rockfish off Washington, as described at §§ 660.230(e) and 660.330(e).

    (ii) * * *

    (A) Fishing in limited entry and open access fisheries with different trip limits. Open access trip limits apply to any fishing conducted with open access gear, even if the vessel has a valid limited entry permit with an endorsement for another type of gear. Except such provisions do not apply to IFQ species (defined at § 660.140(c), subpart D) for vessels that are declared into the Shorebased IFQ Program (see § 660.13(d)(5)(iv)(A) for valid Shorebased IFQ Program declarations). A vessel that fishes in both the open access and limited entry fisheries is not entitled to two separate trip limits for the same species. If a vessel has a limited entry permit registered to it at any time during the trip limit period and uses open access gear, but the open access limit is smaller than the limited entry limit, the open access limit may not be exceeded and counts toward the limited entry limit. If a vessel has a limited entry permit registered to it at any time during the trip limit period and uses open access gear, but the open access limit is larger than the limited entry limit, the smaller limited entry limit applies, even if taken entirely with open access gear.

    (B) * * *

    (1) Vessel registered to a limited entry trawl permit. To fish with open access gear, defined at § 660.11, a vessel registered to a limited entry trawl permit must make the appropriate fishery declaration, as specified at § 660.14(d)(5)(iv)(A). In addition, a vessel registered to a limit entry trawl permit must remove the permit from their vessel, as specified at § 660.25(b)(4)(vi), unless the vessel will be fishing in the open access fishery under one of the following declarations specified at § 660.13(d):

    (2) Vessel registered to a limited entry fixed gear permit(s). To fish with open access gear, defined at § 660.11, subpart C, a vessel registered to a limit entry fixed gear permit must make the appropriate open access declaration, as specified at § 660.14(d)(5)(iv)(A). Vessels registered to a sablefish-endorsed permit(s) fishing in the sablefish primary season (described at § 660.231, subpart E) may only fish with the gear(s) endorsed on their sablefish-endorsed permit(s) against those limits.

    (3) Vessel jointly registered to more than one limited entry permit. Vessels jointly registered (under the provisions at § 660.25(b)(4)(iv)(B)) may fish with open access gear (defined at § 660.11) if they meet the requirements of both paragraphs (h)(7)(ii)(B)(1) and (2) of this section.

    (iii) Fishing in both the Shorebased IFQ Program and the limited entry fixed gear fishery for vessels that are jointly registered.

    (A) Fishing in the Shorebased IFQ Program and limited entry fixed gear fishery with different trip limits. If a vessel fishes in both the Shorebased IFQ Program and the limited entry fixed gear fishery during a cumulative limit period, they are subject to the most restrictive trip limits for non-IFQ species.

    (B) Fishing in the Shorebased IFQ Program and the limited entry fixed gear sablefish primary fishery with different trip limits. If a vessel is jointly registered and one or more of the limited entry permits is sablefish endorsed, any sablefish landings made by a vessel declared into the limited entry fixed gear fishery after the start of the sablefish primary fishery count towards the tier limit(s), per regulations at § 660.232(a)(2), subpart E. Any sablefish landings made by a vessel declared into the Shorebased IFQ Program must be covered by quota pounds, per regulations at § 660.112(b), subpart D, and will not count towards the tier limit(s).

    9. In § 660.112: a. Revise paragraphs (a)(3)(i) and (ii); b. Remove paragraph (b)(1)(xii)(B); and c. Redesignate paragraph (b)(1)(xii)(C) as (b)(1)(xii)(B).

    The revisions read as follows:

    § 660.112 Trawl fishery—prohibitions.

    (a) * * *

    (3) * * *

    (i) Fail to comply with all recordkeeping and reporting requirements at § 660.13, subpart C; including failure to submit information, or submission of inaccurate or false information on any report required at § 660.13(d), subpart C, and § 660.113.

    (ii) Falsify or fail to make and/or file, retain or make available any and all reports of groundfish landings, containing all data, and in the exact manner, required by the regulation at § 660.13, subpart C, or § 660.113.

    10. In § 660.113: a. Revise paragraphs (a)(2) and (b)(4)(ii)(A); b. Remove paragraphs (b)(4)(ii)(B) and (C) and redesignate paragraphs (b)(4)(ii)(D) through (F) as (b)(4)(ii)(B) through (D); c. Revise newly redesignated paragraphs (b)(4)(ii)(C)(5) introductory text and (b)(4)(ii)(C)(6); and d. Revise paragraphs (b)(4)(iii) and (v).

    The revisions read as follows:

    § 660.113 Trawl fishery—recordkeeping and reporting.

    (a) * * *

    (2) All records used in the preparation of records or reports specified in this section or corrections to these reports must be maintained for a period of not less than three years after the date of landing and must be immediately available upon request for inspection by NMFS or authorized officers or others as specifically authorized by NMFS. Records used in the preparation of required reports specified in this section or corrections to these reports that are required to be kept include, but are not limited to, any written, recorded, graphic, electronic, or digital materials as well as other information stored in or accessible through a computer or other information retrieval system; worksheets; weight slips; preliminary, interim, and final tally sheets; receipts; checks; ledgers; notebooks; diaries; spreadsheets; diagrams; graphs; charts; tapes; disks; or computer printouts. All relevant records used in the preparation of electronic fish ticket reports or corrections to these reports, including dock tickets, must be maintained for a period of not less than three years after the date of landing and must be immediately available upon request for inspection by NMFS or authorized officers or others as specifically authorized by NMFS.

    (b) * * *

    (4) * * *

    (ii) * * *

    (A) Include, as part of each electronic fish ticket submission, the actual scale weight for each groundfish species as specified by requirements at § 660.15(c), and the vessel identification number. Use, and maintain in good working order, hardware, software, and internet access as specified at § 660.15(d).

    (C) * * *

    (5) Prior to submittal, three copies of the printed, signed, electronic fish ticket must be produced by the IFQ first receiver and a copy provided to each of the following:

    (6) After review and signature, the electronic fish ticket must be submitted within 24 hours of the completion of the offload, as specified in paragraph (b)(4)(ii)(B) of this section.

    (iii) Revising a submission. In the event that a data error is found, electronic fish ticket submissions must be revised by resubmitting the revised form electronically. Electronic fish tickets are to be used for the submission of final data. Preliminary data, including estimates of fish weights or species composition, shall not be submitted on electronic fish tickets.

    (v) Reporting requirements when a temporary waiver has been granted. IFQ first receivers that have been granted a temporary waiver from the requirement to submit electronic fish tickets must submit on paper the same data as is required on electronic fish tickets within 24 hours of the date received during the period that the waiver is in effect. Paper fish tickets must be sent by facsimile to NMFS, West Coast Region, Sustainable Fisheries Division, 206-526-6736 or by delivering it in person to 7600 Sand Point Way NE., Seattle, WA 98115. The requirements for submissions of paper tickets in this paragraph are separate from, and in addition to existing state requirements for landing receipts or fish receiving tickets.

    § 660.114 [Amended]
    11. Amend § 660.114(b) by removing the words “§ 660.25(b)(4)(v)” wherever they appear and adding in their place the words “§ 660.25(b)(4)(vi)”. 12. In § 660.212, revise paragraph (a)(2), add paragraphs (a)(3) through (5), and revise paragraphs (b) and (d)(1) and (2) to read as follows:
    § 660.212 Fixed gear fishery—prohibitions.

    (a) * * *

    (2) Take and retain, possess, or land more than a single cumulative limit of a particular species, per vessel, per applicable cumulative limit period, except for sablefish taken in the limited entry fixed gear sablefish primary season from a vessel authorized to fish in that season, as described at § 660.231 and except for IFQ species taken in the Shorebased IFQ Program from a vessel authorized under gear switching provisions as described at § 660.140(k).

    (3) Transport fish, if that fish includes any amount of sablefish, away from the point of landing before being sorted and weighed by federal groundfish species or species group, and recorded for submission on an electronic fish ticket under § 660.213(e). (If fish will be transported to a different location for processing, all sorting and weighing to federal groundfish species groups must occur before transporting the fish away from the point of landing).

    (4) Mix fish from more than one landing, where one or more of the landings includes any sablefish, prior to the fish being sorted and weighed for reporting on an electronic fish ticket under § 660.213(e).

    (5) Process, sell, or discard any fish, if that fish includes any amount of sablefish, that has not been accounted for on an electronic fish ticket under § 660.213(e).

    (b) Recordkeeping and reporting. (1) Fail to comply with all recordkeeping and reporting requirements at § 660.13, subpart C; including failure to submit information, or submission of inaccurate or false information on any report required at § 660.13(d), subpart C, and § 660.213.

    (2) Falsify or fail to make and/or file, retain or make available any and all reports of groundfish landings that include sablefish, containing all data, and in the exact manner, required by the regulation at § 660.13, subpart C, or § 660.213.

    (d) Sablefish fisheries. (1) Take and retain, possess or land sablefish under the tier limits provided for the limited entry, fixed gear sablefish primary season, described in § 660.231(b)(3), from a vessel that is not registered to a limited entry permit with a sablefish endorsement.

    (2) Take and retain, possess or land sablefish in the sablefish primary season, described at § 660.231(b), unless the owner of the limited entry permit registered for use with that vessel and authorizing the vessel to fish in the sablefish primary season is on board that vessel. Exceptions to this prohibition are provided at § 660.231(b)(4)(i) and (ii).

    13. In § 660.213, revise paragraph (d)(1) and add paragraph (e) to read as follows:
    § 660.213 Fixed gear fishery—recordkeeping and reporting.

    (d) * * *

    (1) Any person landing groundfish must retain on board the vessel from which groundfish are landed, and provide to an authorized officer upon request, copies of any and all reports of groundfish landings containing all data, and in the exact manner, required by the applicable state law throughout the cumulative limit period during which a landing occurred and for 15 days thereafter. All relevant records used in the preparation of electronic fish ticket reports or corrections to these reports, including dock tickets, must be maintained for a period of not less than three years after the date of landing and must be immediately available upon request for inspection by NMFS or authorized officers or others as specifically authorized by NMFS.

    (e) Electronic fish ticket. The first receiver, as defined at § 660.11, subpart C, of fish, if that fish includes any amount of sablefish, from a limited entry fixed gear vessel, is responsible for compliance with all reporting requirements described in this paragraph. Per requirements at § 660.212(a), all fish, if that fish includes any amount of sablefish, must be reported via electronic fish ticket. When used in this paragraph, submit means to transmit final electronic fish ticket information via web-based form or, if a waiver is granted, by paper form. When used in this paragraph, record means the action of documenting electronic fish ticket information in any written format.

    (1) Required information. All first receivers must provide the following types of information: Date of landing, vessel that made the landing, vessel identification number, limited entry permit number(s), name of the vessel operator, gear type used, receiver, actual weights of species landed listed by species or species group including species with no value, condition landed, number of salmon by species, number of Pacific halibut, ex-vessel value of the landing by species, fish caught inside/outside 3 miles or both, and any other information deemed necessary by the Regional Administrator (or designee) as specified on the appropriate electronic fish ticket form.

    (2) Submissions. The first receiver must:

    (i) Include, as part of each electronic fish ticket submission, the actual scale weight for each groundfish species as specified by requirements at § 660.15(c), the vessel identification number, and the limited entry permit number. Use and maintain, for the purposes of submitting electronic fish tickets, equipment as specified at § 660.15(d).

    (ii) Submit a completed electronic fish ticket(s) no later than 24 hours after the date of landing, unless a waiver of this requirement has been granted under provisions specified at paragraph (e)(4) of this section.

    (iii) Sablefish from a single landing in the limited entry fixed gear sablefish primary fishery may be counted against more than one stacked permit, or against a tier limit(s) and the cumulative trip limit in the DTL fishery. For vessels with stacked limited entry sablefish permits, defined at § 660.12, sablefish may be divided for the purposes of apportioning the sablefish amongst the remaining tier limits associated with each of the stacked permits; in that instance the electronic fish ticket(s) must record all pertinent limited entry permit numbers and apportion sablefish landed against each tier limit. Per regulations at § 660.232(a)(2) a vessel may apportion sablefish catch between the remainder of its tier limit(s) and against the applicable DTL limits; in that instance the electronic fish ticket must be used to apportion sablefish landed against the tier(s) from the sablefish landed against cumulative trip limits of the DTL fishery. If sablefish is apportioned in either of the ways described in this paragraph, the electronic fish ticket must meet the process and submittal requirements specified in paragraphs (e)(iv) and (v) of this section. In addition, the owner-on-board, unless exempted under regulations at § 660.231(a)(4), must review and sign documentation of the landing, as described in paragraphs (e)(2)(iv) and (v) of this section.

    (iv) If electronic fish tickets will be submitted prior to processing or transport, follow these process and submittal requirements:

    (A) After completing the landing, the electronic fish ticket information must be recorded immediately.

    (B) Prior to submittal of the electronic fish ticket, the information recorded for the electronic fish ticket must be reviewed by the vessel operator who delivered the fish and the port sampler, if one is present. If required by regulations at § 660.231(a)(4), the owner-on-board must also review the information recorded on the electronic fish ticket prior to submittal.

    (C) After review, the receiver and the vessel operator must sign a printed hard copy of the electronic fish ticket or, if the landing occurs outside of business hours, the original dock ticket. If required by regulations at § 660.231(a)(4), the owner-on-board must also sign a printed copy of the electronic fish ticket or, if the landing occurs outside of business hours, the original dock ticket.

    (D) Prior to submittal, three copies of the signed electronic fish ticket must be produced by the receiver and a copy provided to each of the following:

    (1) The vessel operator and/or the owner-on-board,

    (2) The state of origin if required by state regulations, and

    (3) The first receiver.

    (E) After review and signature, the electronic fish ticket must be submitted within 24 hours after the date of landing, as specified in paragraph (e)(2)(ii) of this section.

    (v) If electronic fish tickets will be submitted after transport, follow these process and submittal requirements:

    (A) The vessel name, limited entry permit number, and the electronic fish ticket number must be recorded on each dock ticket related to that landing.

    (B) Upon completion of the dock ticket, but prior to transfer of the landing to another location, the dock ticket information that will be used to complete the electronic fish ticket must be reviewed by the vessel operator who delivered the fish. If the electronic fish ticket will report landings of sablefish in the sablefish primary fishery, the owner-on-board, unless exempted under regulations at § 660.231(a)(4), must review the information recorded on the dock ticket prior to transfer of the landing to another location.

    (C) After review, the first receiver and the vessel operator must sign the original copy of each dock ticket related to that landing. If a dock ticket includes landings of sablefish in the sablefish primary fishery, the owner-on-board, unless exempted under regulations at § 660.231(a)(4), must sign the original copy of that dock ticket.

    (D) Prior to submittal of the electronic fish ticket, three copies of the signed dock ticket must be produced by the first receiver and a copy provided to each of the following:

    (1) The vessel operator and/or the owner-on-board,

    (2) The state of origin if required by state regulations, and

    (3) The first receiver.

    (E) Based on the information contained in the signed dock ticket, the electronic fish ticket must be completed and submitted within 24 hours of the completion of the landing, as specified in paragraph (e)(2)(ii) of this section.

    (F) Three copies of the electronic fish ticket must be produced by the first receiver and a copy provided to each of the following:

    (1) The vessel operator and/or the owner-on-board,

    (2) The state of origin if required by state regulations, and

    (3) The first receiver.

    (3) Revising a submission. In the event that a data error is found, electronic fish ticket submissions must be revised by resubmitting the revised form electronically. Electronic fish tickets are to be used for the submission of final data. Preliminary data, including estimates of fish weights or species composition, shall not be submitted on electronic fish tickets.

    (4) Waivers for submission. On a case-by-case basis, a temporary written waiver of the requirement to submit electronic fish tickets may be granted by the Assistant Regional Administrator or designee if he/she determines that circumstances beyond the control of a receiver would result in inadequate data submissions using the electronic fish ticket system. The duration of the waiver will be determined on a case-by-case basis.

    (5) Reporting requirements when a temporary waiver has been granted. Receivers that have been granted a temporary waiver from the requirement to submit electronic fish tickets must submit on paper the same data as is required on electronic fish tickets within 24 hours of the date received during the period that the waiver is in effect. Paper fish tickets must be sent by facsimile to NMFS, West Coast Region, Sustainable Fisheries Division, 206-526-6736 or by delivering it in person to 7600 Sand Point Way NE., Seattle, WA 98115. The requirements for submissions of paper tickets in this paragraph are separate from, and in addition to existing state requirements for landing receipts or fish receiving tickets.

    14. In § 660.231, revise paragraphs (a), (b)(1) through (3), and (b)(4) introductory text to read as follows:
    § 660.231 Limited entry fixed gear sablefish primary fishery.

    (a) Sablefish endorsement. In addition to requirements pertaining to fishing in the limited entry fixed gear fishery (described in subparts C and E), a vessel may not fish in the sablefish primary season for the limited entry fixed gear fishery, unless at least one limited entry permit with both a gear endorsement for longline or trap (or pot) gear and a sablefish endorsement is registered for use with that vessel. Permits with sablefish endorsements are assigned to one of three tiers, as described at § 660.25(b)(3)(iv), subpart C.

    (b) * * *

    (1) Season dates. North of 36° N. lat., the sablefish primary season for the limited entry, fixed gear, sablefish-endorsed vessels begins at 12 noon local time on April 1 and closes at 12 noon local time on October 31, or closes for an individual vessel owner when the tier limit for the sablefish endorsed permit(s) registered to the vessel has been reached, whichever is earlier, unless otherwise announced by the Regional Administrator through the routine management measures process described at § 660.60(c).

    (2) Gear type. During the primary season, when fishing against primary season cumulative limits, each vessel authorized to fish in that season under paragraph (a) of this section may fish for sablefish with any of the gear types, except trawl gear, endorsed on at least one of the sablefish endorsed permits registered for use with that vessel.

    (3) Cumulative limits. (i) A vessel fishing in the primary season will be constrained by the sablefish cumulative limit associated with each of the sablefish endorsed permits registered for use with that vessel. During the primary season, each vessel authorized to fish in that season under paragraph (a) of this section may take, retain, possess, and land sablefish, up to the cumulative limits for each of the sablefish endorsed permits registered for use with that vessel. If a vessel is stacking permits, that vessel may land up to the total of all cumulative limits announced in this paragraph for the tiers for those permits, except as limited by paragraph (b)(3)(ii) of this section. Up to 3 sablefish endorsed permits may be stacked for use with a single vessel during the primary season; thus, a single vessel may not take and retain, possess or land more than 3 primary season sablefish cumulative limits in any one year. Per regulations at § 660.12(a)(6), subpart C, all other groundfish landings are subject to per vessel trip limits. In 2015, the following annual limits are in effect: Tier 1 at 41,175 (18,677 kg), Tier 2 at 18,716 lb (8,489 kg), and Tier 3 at 10,695 lb (4,851 kg). For 2016 and beyond, the following annual limits are in effect: Tier 1 at 45,053 lb (20,436 kg), Tier 2 at 20,479 lb (9,289 kg), and Tier 3 at 11,702 lb (5,308 kg).

    (ii) If a sablefish endorsed permit is registered to more than one vessel during the primary season in a single year, the second vessel may only take the portion of the cumulative limit for that permit that has not been harvested by the first vessel to which the permit was registered. The combined primary season sablefish landings for all vessels registered to that permit may not exceed the cumulative limit for the tier associated with that permit.

    (iii) A cumulative trip limit is the maximum amount of sablefish that may be taken and retained, possessed, or landed per vessel in a specified period of time, with no limit on the number of landings or trips.

    (iv) Incidental Pacific halibut retention north of Pt. Chehalis, WA (46°53.30′ N. lat.). From April 1 through October 31, vessels authorized to participate in the sablefish primary fishery, licensed by the International Pacific Halibut Commission for commercial fishing in Area 2A (waters off Washington, Oregon, California), and fishing with longline gear north of Pt. Chehalis, WA (46°53.30′ N. lat.) may possess and land up to the following cumulative limits: 110 lb (50 kg) dressed weight of Pacific halibut for every 1,000 pounds (454 kg) dressed weight of sablefish landed and up to 2 additional Pacific halibut in excess of the 110-pounds-per-1,000-pound ratio per landing. “Dressed” Pacific halibut in this area means halibut landed eviscerated with their heads on. Pacific halibut taken and retained in the sablefish primary fishery north of Pt. Chehalis may only be landed north of Pt. Chehalis and may not be possessed or landed south of Pt. Chehalis.

    (4) Owner-on-board requirement. Any person who owns or has ownership interest in a limited entry permit with a sablefish endorsement, as described at § 660.25(b)(3), subpart C, must be on board the vessel registered for use with that permit at any time that the vessel has sablefish on board the vessel that count toward that permit's cumulative sablefish landing limit. This person must carry government issued photo identification while aboard the vessel. This person must review and sign a printed copy of the electronic fish ticket(s) or dock ticket, as described at § 660.213(d), unless this person qualified for the owner-on-board exemption. A permit owner is qualified for the owner-on-board exemption and not obligated to be on board the vessel registered for use with the sablefish-endorsed limited entry permit during the sablefish primary season if:

    15. Section 660.232 is revised to read as follows:
    § 660.232 Limited entry daily trip limit (DTL) fishery for sablefish.

    (a) Limited entry DTL fisheries both north and south of 36° N. lat. (1) Before the start of the sablefish primary season, all sablefish landings made by a vessel declared into the limited entry fixed gear fishery and authorized by § 660.231(a) to fish in the sablefish primary season will be subject to the restrictions and limits of the limited entry DTL fishery for sablefish specified in this section and which is governed by routine management measures imposed under § 660.60(c), subpart C.

    (2) Following the start of the primary season, all sablefish landings made by a vessel declared into the limited entry fixed gear fishery and authorized by § 660.231(a) to fish in the primary season will count against the primary season cumulative limit(s) associated with the sablefish-endorsed permit(s) registered for use with that vessel. A vessel that is eligible to fish in the sablefish primary season may fish in the DTL fishery for sablefish once that vessels' primary season sablefish limit(s) have been landed, or after the close of the primary season, whichever occurs earlier (as described at § 660.231(b)(1). If the vessel continues to fish in the limited entry fixed gear fishery for any part of the remaining fishing year, any subsequent sablefish landings by that vessel will be subject to the restrictions and limits of the limited entry DTL fishery for sablefish.

    (3) Vessels registered for use with a limited entry fixed gear permit that does not have a sablefish endorsement may fish in the limited entry DTL fishery, consistent with regulations at § 660.230, for as long as that fishery is open during the fishing year, subject to routine management measures imposed under § 660.60(c), Subpart C. DTL limits for the limited entry fishery north and south of 36° N. lat. are provided in Tables 2 (North) and 2 (South) of this subpart.

    (b) A vessel that is jointly registered, and has participated or will participate in both the limited entry fixed gear fishery and the Shorebased IFQ Program during the fishing year, is subject to crossover provisions described at § 660.60(h)(7), subpart C.

    16. In § 660.312: a. Add paragraphs (a)(3) through (5); b. Redesignate paragraphs (b) and (c) as (c) and (d); and c. Add a new paragraph (b).

    The additions read as follows:

    § 660.312 Open access fishery—prohibitions.

    (a) * * *

    (3) Transport fish, if that fish includes any amount of sablefish, away from the point of landing before being sorted and weighed by federal groundfish species or species group, and recorded for submission on an electronic fish ticket under § 660.313(f). (If fish will be transported to a different location for processing, all sorting and weighing to federal groundfish species groups must occur before transporting the fish away from the point of landing).

    (4) Mix fish from more than one landing, where one or more of the landings includes any amount of sablefish, prior to the fish being sorted and weighed for reporting on an electronic fish ticket under § 660.313(f).

    (5) Process, sell, or discard any fish if that fish includes any amount of sablefish, that has not been accounted for on an electronic fish ticket under § 660.313(f).

    (b) Recordkeeping and reporting. (1) Fail to comply with all recordkeeping and reporting requirements at § 660.13, subpart C, including failure to submit information, or submission of inaccurate or false information on any report required at § 660.13(d), subpart C, and § 660.313.

    (2) Falsify or fail to make and/or file, retain or make available any and all reports of groundfish landings that include sablefish, containing all data, and in the exact manner, required by the regulation at § 660.13, subpart C, or § 660.313.

    17. Section 660.313 is revised to read as follows:
    § 660.313 Open access fishery—recordkeeping and reporting.

    (a) General. General reporting requirements specified at § 660.13(a) through (c), subpart C, apply to the open access fishery.

    (b) Declaration reports for vessels using nontrawl gear. Declaration reporting requirements for open access vessels using nontrawl gear (all types of open access gear other than non-groundfish trawl gear) are specified at § 660.13(d), subpart C.

    (c) Declaration reports for vessels using non-groundfish trawl gear. Declaration reporting requirements for open access vessels using non-groundfish trawl gear are specified at § 660.13(d), subpart C.

    (d) VMS requirements for open access fishery vessels. VMS requirements for open access fishery vessels are specified at § 660.14, subpart C.

    (e) Retention of records. Any person landing groundfish must retain on board the vessel from which groundfish is landed, and provide to an authorized officer upon request, copies of any and all reports of groundfish landings containing all data, and in the exact manner, required by the applicable state law throughout the cumulative limit period during which a landing occurred and for 15 days thereafter. All relevant records used in the preparation of electronic fish ticket reports or corrections to these reports, including dock tickets, must be maintained for a period of not less than three years after the date of landing and must be immediately available upon request for inspection by NMFS or authorized officers or others as specifically authorized by NMFS.

    (f) Electronic fish ticket. The first receiver, as defined at § 660.11, subpart C, of fish, if that fish includes any amount of sablefish, from an open access vessel, is responsible for compliance with all reporting requirements described in this paragraph. Per requirements at § 660.312(a), all fish, if that fish includes any amount of sablefish, must be reported via electronic fish ticket. When used in this paragraph, submit means to transmit final electronic fish ticket information via web-based form or, if a waiver is granted, by paper form. When used in this paragraph, record means the action of documenting electronic fish ticket information in any written format.

    (1) Required information. All first receivers must provide the following types of information: Date of landing, vessel that made the landing, vessel identification number, name of the vessel operator, gear type used, receiver, actual weights of species landed listed by species or species group including species with no value, condition landed, number of salmon by species, number of Pacific halibut, ex-vessel value of the landing by species, fish caught inside/outside 3 miles or both, and any other information deemed necessary by the Regional Administrator (or designee) as specified on the appropriate electronic fish ticket form.

    (2) Submissions. The first receiver must:

    (i) Include, as part of each electronic fish ticket submission, the actual scale weight for each groundfish species as specified by requirements at § 660.15(c) and the vessel identification number. Use and maintain, for the purposes of submitting electronic fish tickets, equipment as specified at § 660.15(d).

    (ii) Submit a completed electronic fish ticket no later than 24 hours after the date of landing, unless a waiver of this requirement has been granted under provisions specified at paragraph (f)(4) of this section.

    (iii) If electronic fish tickets will be submitted prior to processing or transport, follow these process and submittal requirements:

    (A) After completing the landing, the electronic fish ticket information must be recorded immediately.

    (B) Prior to submittal of the electronic fish ticket, the information recorded for the electronic fish ticket must be reviewed by the vessel operator who delivered the fish and the port sampler, if one is present.

    (C) After review, the receiver and the vessel operator must sign a printed hard copy of the electronic fish ticket or, if the landing occurs outside of business hours, the original dock ticket.

    (D) Prior to submittal, three copies of the signed electronic fish ticket must be produced by the receiver and a copy provided to each of the following:

    (1) The vessel operator,

    (2) The state of origin if required by state regulations, and

    (3) The first receiver.

    (E) After review and signature, the electronic fish ticket must be submitted within 24 hours after the date of landing, as specified in paragraph (f)(2)(ii) of this section.

    (iv) If electronic fish tickets will be submitted after transport, follow these process and submittal requirements:

    (A) The vessel name and the electronic fish ticket number must be recorded on each dock ticket related to that landing.

    (C) Upon completion of the dock ticket, but prior to transfer of the offload to another location, the dock ticket information that will be used to complete the electronic fish ticket must be reviewed by the vessel operator who delivered the fish.

    (D) After review, the first receiver and the vessel operator must sign the original copy of each dock ticket related to that landing.

    (E) Prior to submittal of the electronic fish ticket, three copies of the signed dock ticket must be produced by the first receiver and a copy provided to each of the following:

    (1) The vessel operator,

    (2) The state of origin if required by state regulations, and

    (3) The first receiver.

    (F) Based on the information contained in the signed dock ticket, the electronic fish ticket must be completed and submitted within 24 hours of the date of landing, as specified in paragraph (f)(2)(ii) of this section.

    (G) Three copies of the electronic fish ticket must be produced by the first receiver and a copy provided to each of the following:

    (1) The vessel operator,

    (2) The state of origin if required by state regulations, and

    (3) The first receiver.

    (3) Revising a submission. In the event that a data error is found, electronic fish ticket submissions must be revised by resubmitting the revised form electronically. Electronic fish tickets are to be used for the submission of final data. Preliminary data, including estimates of fish weights or species composition, shall not be submitted on electronic fish tickets.

    (4) Waivers for submission. On a case-by-case basis, a temporary written waiver of the requirement to submit electronic fish tickets may be granted by the Assistant Regional Administrator or designee if he/she determines that circumstances beyond the control of a receiver would result in inadequate data submissions using the electronic fish ticket system. The duration of the waiver will be determined on a case-by-case basis.

    (5) Reporting requirements when a temporary waiver has been granted. Receivers that have been granted a temporary waiver from the requirement to submit electronic fish tickets must submit on paper the same data as is required on electronic fish tickets within 24 hours of the date of landing during the period that the waiver is in effect. Paper fish tickets must be sent by facsimile to NMFS, West Coast Region, Sustainable Fisheries Division, 206-526-6736 or by delivering it in person to 7600 Sand Point Way NE., Seattle, WA 98115. The requirements for submissions of paper tickets in this paragraph are separate from, and in addition to existing state requirements for landing receipts or fish receiving tickets.

    [FR Doc. 2016-28153 Filed 11-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 902 50 CFR Part 679 [Docket No. 151113999-6999-02] RIN 0648-BF54 Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 113 AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS issues this final rule to implement Amendment 113 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). This final rule modifies the management of Bering Sea and Aleutian Islands (BSAI) Pacific cod fishery to set aside a portion of the Aleutian Islands Pacific cod total allowable catch for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch for processing to a shoreside processor located on land west of 170° W. longitude in the Aleutian Islands (“Aleutian Islands shoreplant”). The harvest set-aside applies only if specific notification and performance requirements are met, and only during the first few months of the fishing year. This harvest set-aside provides the opportunity for vessels, Aleutian Islands shoreplants, and the communities where Aleutian Islands shoreplants are located to receive benefits from a portion of the Aleutian Islands Pacific cod fishery. The notification and performance requirements preserve an opportunity for the complete harvest of the BSAI Pacific cod resource if the set-aside is not fully harvested. This final rule is intended to promote the goals and objectives of Amendment 113, the FMP, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws.

    DATES:

    Effective on November 23, 2016.

    ADDRESSES:

    Electronic copies of Amendment 113 to the FMP, the Environmental Assessment (EA), Regulatory Impact Review (RIR), Initial Regulatory Flexibility Analysis (IRFA), and Finding of No Significant Impact (FONSI) prepared for this action, collectively “the Analysis,” and the proposed rule may be obtained from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; by email to [email protected]; or by fax to (202) 395-5806.

    FOR FURTHER INFORMATION CONTACT:

    Julie Scheurer, 907-586-7228.

    SUPPLEMENTARY INFORMATION: Background

    NMFS manages the groundfish and Pacific cod fisheries in the Exclusive Economic Zone of the BSAI under the FMP. The North Pacific Fishery Management Council (Council) prepared, and the Secretary of Commerce approved, the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other applicable laws. Regulations implementing the FMP appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at 50 CFR part 600.

    NMFS published the Notice of Availability of Amendment 113 on July 19, 2016 (81 FR 46883), with comments invited through September 19, 2016. NMFS published the proposed rule to implement Amendment 113 on August 1, 2016 (81 FR 50444), with comments invited through August 31, 2016. The Secretary approved Amendment 113 on October 17, 2016. NMFS received 35 unique comments on Amendment 113 and the proposed rule from 16 different commenters. A summary of these comments and the responses by NMFS are provided under the heading “Responses to Comments” below. These comments resulted in two minor changes from the proposed rule. One additional change to this final rule is not in response to comments, but is an administrative change that NMFS deemed necessary for timely implementation of this final rule.

    A detailed review of the BSAI Pacific cod fishery, provisions of Amendment 113, the proposed regulations to implement Amendment 113, and the rationale for these regulations is provided in the preamble to the proposed rule (81 FR 50444, August 1, 2016) and is not repeated here. The preamble to this final rule briefly reviews the regulatory changes made by this final rule.

    This final rule modifies the BSAI Pacific cod fishery to set aside a portion of the Aleutian Islands Pacific cod total allowable catch (TAC) for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch to Aleutian Islands shoreplants for processing. The harvest set-aside applies only if specific notification and performance requirements are met, and only during the first few months of the fishing year.

    Table 3 in the proposed rule preamble (81 FR 50444, August 1, 2016) describes the Overfishing Levels (OFLs), the Acceptable Biological Catches (ABCs), TACs, the Western Alaska Community Development Quota (CDQ) and non-CDQ fishery sector allocations, and seasonal apportionments of BSAI Pacific cod in 2017, the first year of implementation of this final rule. Each of these terms is described in the preamble to the proposed rule. Table 3 of the proposed rule preamble includes data from Tables 2 and 9 in the 2016 and 2017 final harvest specifications for the BSAI groundfish fisheries (81 FR 14773, March 18, 2016).

    Harvesting and Processing of Pacific Cod in the Aleutian Islands

    A variety of vessels using a variety of gear types harvest the Aleutian Islands Pacific cod TAC each year. Trawl catcher vessels (CVs) and trawl catcher processors (CPs) have been among the most active participants in the Aleutian Islands Pacific cod fishery. Hook-and-line CPs have consistently participated in the Aleutian Islands Pacific cod fishery. Non-trawl CVs have harvested only a very small portion of the Pacific cod from the Aleutian Islands. The proposed rule and Section 2.6.6 of the Analysis provide additional detail on the types of vessels harvesting Pacific cod in the Aleutian Islands.

    Trawl CVs deliver their catch of Aleutian Islands Pacific cod to several types of processors in the Aleutian Islands: CPs acting as motherships (vessels that process Pacific cod delivered by trawl CVs); stationary floating processors anchored in specific locations that receive and process catch on board but do not harvest and process their own catch; and shoreside processing facilities that are physically located on land west of 170° W. longitude in the Aleutian Islands (defined as “Aleutian Islands shoreplant” in this final rule).

    Currently, Aleutian Islands shoreplants that may be capable of receiving Aleutian Islands Pacific cod from CVs are located in the communities of Adak and Atka. Although the Atka shoreplant has not received and processed Aleutian Islands Pacific cod, the shoreplant in Adak has received and processed relatively large amounts of Pacific cod. The proposed rule and Section 2.7.1 of the Analysis have additional detail on the delivery and processing of Aleutian Islands Pacific cod.

    Since 2008, trawl CVs have primarily delivered their catch of Aleutian Islands Pacific cod to a small group of CPs that operate as motherships. As deliveries of Aleutian Islands Pacific cod harvest from trawl CVs to CPs operating as motherships have increased in recent years, the amount of trawl CV harvest delivered to Aleutian Islands shoreplants has decreased. Additionally, CPs operating as motherships have demonstrated the capacity to process the entire TAC of Pacific cod in the Aleutian Islands in years when no Aleutian Islands shoreplant is in operation. This final rule is intended in part to mitigate the risk that CVs, Aleutian Islands shoreplants, and the communities in which they are located will be preempted from participating in the Aleutian Islands Pacific cod fishery by CPs.

    The proposed rule and Section 2.6 of the Analysis provide additional description of the factors that have affected the harvesting and processing of Pacific cod in the Aleutian Islands.

    Need for This Final Rule

    A thorough description of the history and need for this action is provided in the proposed rule and the Analysis prepared for this action and is not repeated here. The Council adopted its preferred alternative for Amendment 113 at its October 2015 meeting.

    Since 2008, Aleutian Islands fishing communities, and specifically the community of Adak and its shoreplant, have seen a decrease in the amount of Pacific cod being harvested and delivered. The amount of Pacific cod delivered to Aleutian Islands shoreplants has been highly variable, which is not conducive to stable shoreside operations. Several factors have contributed to this instability, and therefore the need for this action, including decreased Pacific cod biomass in the Aleutian Islands subarea; the establishment of separate OFLs, ABCs, and TACs for Pacific cod in the Bering Sea and the Aleutian Islands; changing Steller sea lion protection measures; and changing fishing practices in part resulting from rationalization programs that allocate catch to specific fishery participants.

    This rule establishes a harvest set-aside in which a portion of the Aleutian Islands Pacific cod TAC will be available for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch to Aleutian Islands shoreplants for processing. This harvest set-aside applies only if specific notification and performance requirements are met, and only during the first few months of the fishing year.

    The Council determined and NMFS agrees that a harvest set-aside is needed for several reasons: The TAC for Aleutian Islands Pacific cod has been significantly lower than predicted so that less Pacific cod is available for harvest; the rationalization programs, and particularly the Amendment 80 Program, have allowed an influx of processing capacity into the Aleutian Islands Pacific cod fishery; and the Aleutian Islands communities and shoreplants (Adak) have received almost all of their total first wholesale gross revenue from Aleutian Islands Pacific cod.

    This final rule strikes a balance between providing protections for fishing communities and ensuring that the fishery sectors have a meaningful opportunity to fully harvest their BSAI Pacific cod allocations by including several thresholds to prevent a portion of the Aleutian Islands Pacific cod TAC from being unharvested. This final rule will provide social and economic benefits to, and promote stability in, fishery-dependent fishing communities in the Aleutian Islands and is responsive to changes in management of the Aleutian Islands Pacific cod fishery such as rationalization programs, decreasing biomass of Pacific cod, and Steller sea lion protection measures that necessitate putting protections in place to protect other non-rationalized fisheries.

    This final rule does not modify existing harvest allocations of BSAI Pacific cod to participants in the CDQ Program. This final rule does not modify existing harvest allocations of BSAI Pacific cod made to the nine non-CDQ fishery sectors defined in § 679.20(a)(7)(ii)(A). Although the nine non-CDQ sectors will continue to receive their existing harvest allocations of BSAI Pacific cod, each sector's ability to harvest a portion of its BSAI Pacific cod allocation in the Aleutian Islands may be affected by this rule.

    The Aleutian Islands shoreplants in Adak and Atka currently are not processing Aleutian Islands Pacific cod. However, the protection measures and harvest set-aside in this final rule will minimize the risk of exclusion from, and maintain opportunities for participation in, the Aleutian Islands Pacific cod fishery by Aleutian Islands harvesters, shoreplants, and communities when those Aleutian Islands communities are able to accept deliveries of and process Aleutian Islands Pacific cod.

    This final rule revises regulations to provide additional opportunities for harvesters to deliver Aleutian Islands Pacific cod to Aleutian Islands shoreplants. Recent Aleutian Islands Pacific cod TACs have not been sufficient to allow all sectors to prosecute the Aleutian Islands Pacific cod fishery at their historical levels. Without protections, Aleutian Islands harvesters, shoreplants, and fishing communities may be preempted from the fishery by harvests by CPs, or by harvests from CVs delivering their catch to CPs.

    Because of their remote location and limited economic alternatives, Aleutian Islands communities rely on harvesting and processing of the nearby fishery resources to support and sustain the social and economic welfare of their communities. This final rule is intended to be directly responsive to National Standard 8 of the Magnuson-Stevens Act that states conservation and management measures shall take into account the importance of fishery resources to fishing communities in order to provide for the sustained participation of such communities, and to the extent practicable, minimize adverse economic impacts on such communities (16 U.S.C. 1851(a)(8)).

    Overview of Measures Implemented by This Rule

    This final rule modifies several aspects of the BSAI Pacific cod fishery. This final rule sets aside a portion of the Aleutian Islands Pacific cod non-CDQ TAC for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch to Aleutian Islands shoreplants. However, the harvest set-aside applies only if specific notification and performance requirements are met, and only during the first few months of the fishing year.

    In order to implement Amendment 113, this final rule:

    • Defines the term “Aleutian Islands shoreplant” in regulation;

    • Calculates and defines the amount of the Aleutian Islands Pacific cod TAC that will be available as a directed fishing allowance (DFA) and the amount that will be available as an incidental catch allowance (ICA);

    • Limits the amount of early season (from January 20 until April 1), also known as A-season, Pacific cod that may be harvested by the trawl CV sector in the Bering Sea prior to March 21 (Bering Sea Trawl CV A-Season Sector Limitation);

    • Sets aside some or all of the Aleutian Islands Pacific cod non-CDQ DFA for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch for processing by Aleutian Islands shoreplants from January 1 to March 15 (Aleutian Islands CV Harvest Set-Aside);

    • Requires that either the City of Adak or the City of Atka annually notify NMFS of its intent to process Aleutian Islands Pacific cod during the upcoming fishing year in order for the Aleutian Islands CV Harvest Set-Aside and the Bering Sea Trawl CV A-Season Sector Limitation to be effective in the upcoming fishing year; and

    • Removes the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside if less than 1,000 metric tons (mt) of the harvest set-aside is delivered to (i.e., landed at) Aleutian Islands shoreplants on or before February 28, or if the harvest set-aside is fully taken before March 15.

    The following sections provide further explanation of the regulatory changes made by this rule. Additional detail about the rationale for and effect of the regulatory changes in this rule is provided in the preamble to the proposed rule and in the Analysis for this action.

    Summary of Regulatory Changes Revisions to Definitions at § 679.2

    This final rule adds a definition to § 679.2 for “Aleutian Islands shoreplant” to mean a processing facility that is physically located on land west of 170° W. longitude within the State of Alaska (State). This definition is needed because the existing term “shoreside processor” in § 679.2 can include processing vessels that are moored or otherwise fixed in a location (i.e., stationary floating processors), but not necessarily located on land. This new definition provides a clear and consistent term for referencing the processors located on land within the Aleutian Islands.

    Revisions to General Limitations at § 679.20

    This final rule adds a new paragraph (viii) to § 679.20(a)(7). This new paragraph includes the primary regulatory provisions of this final rule. The preamble to the proposed rule provides examples to aid the reader in understanding how this final rule will apply using 2017 harvest specifications for BSAI Pacific cod (81 FR 14773, March 18, 2016). For the remainder of this preamble, unless otherwise specified, all references to allocations and apportionments of BSAI Pacific cod refer to non-CDQ allocations and apportionments of BSAI Pacific cod.

    Calculation of the Aleutian Islands Pacific Cod ICA and DFA

    NMFS will annually specify an ICA and a DFA derived from the Aleutian Islands Pacific cod non-CDQ TAC. Each year, during the annual harvest specifications process described at § 679.20(c), NMFS will specify an amount of Aleutian Islands Pacific cod that NMFS estimates will be taken as incidental catch when directed fishing for non-CDQ groundfish other than Pacific cod in the Aleutian Islands. This amount will be the Aleutian Islands ICA and will be deducted from the Aleutian Islands non-CDQ TAC. The amount of the Aleutian Islands non-CDQ TAC remaining after subtraction of the Aleutian Islands ICA will be the Aleutian Islands DFA.

    NMFS will specify the Aleutian Islands ICA and DFA so that NMFS can clearly establish the amount of Aleutian Islands Pacific cod that will be used to determine the amount of the Aleutian Islands CV Harvest Set-Aside described in the following sections of this preamble. The specification will also provide the public with notification of the amount of the Aleutian Islands non-CDQ TAC that is available for directed fishing prior to the start of the fishing season to aid in the planning of fishery operations. The Aleutian Islands DFA is the maximum amount of Pacific cod available for directed fishing by all non-CDQ fishery sectors in all seasons in the Aleutian Islands.

    Although the amount of the Aleutian Islands ICA may vary from year to year, NMFS specifies an Aleutian Islands ICA of 2,500 mt for 2017. NMFS determined that this amount will be needed to support incidental catch of Pacific cod in other Aleutian Islands non-CDQ directed groundfish fisheries. In future years, NMFS will specify the Aleutian Islands ICA in the annual harvest specifications based on recent and anticipated incidental catch of Aleutian Islands Pacific cod in other Aleutian Islands non-CDQ directed groundfish fisheries.

    Bering Sea Trawl CV A-Season Sector Limitation

    This final rule establishes the Bering Sea Trawl CV A-Season Sector Limitation to restrict the amount of the trawl CV sector's A-season allocation that can be harvested in the Bering Sea subarea prior to March 21. The Bering Sea Trawl CV A-Season Sector Limitation ensures that some of the trawl CV sector's A-season allocation remains available for harvest in the Aleutian Islands subarea by trawl catcher vessels that deliver their catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for processing. On March 21, the restriction on Bering Sea harvest by the trawl CV sector will be lifted and the remainder, if any, of the BSAI trawl CV sector's A-season allocation can be harvested in either the Bering Sea or the Aleutian Islands (if still open to directed fishing for Pacific cod) for delivery to any eligible processor for processing.

    The Bering Sea Trawl CV A-Season Sector Limitation will equal the lesser of either the Aleutian Islands DFA or 5,000 mt. The Bering Sea Trawl CV A-Season Sector Limitation will be equivalent to the Aleutian Islands CV Harvest Set-Aside, as discussed in the following section of the preamble. The amount of the trawl CV sector's A-season allocation that may be harvested in the Bering Sea prior to March 21 will be the amount of Pacific cod that remains after deducting the Bering Sea Trawl CV A-Season Sector Limitation from the BSAI trawl CV sector A-season allocation listed in the annual harvest specifications (and as determined at § 679.20(a)(7)(iv)(A)(1)(i)). NMFS will annually specify in the annual harvest specifications the Bering Sea Trawl CV A-Season Sector Limitation and the amount of the trawl CV sector's A-season allocation that may be harvested in the Bering Sea prior to March 21.

    The preamble to the proposed rule provides additional background on the factors that the Council and NMFS considered when determining the amount and timing of the Bering Sea Trawl CV A-Season Sector Limitation and is not repeated here.

    Aleutian Islands Catcher Vessel Harvest Set-Aside

    This final rule requires that some or all of the Aleutian Islands DFA be set aside for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch to Aleutian Islands shoreplants for processing. This Aleutian Islands CV Harvest Set-Aside will be available for harvest by vessels using any authorized gear type and that deliver their directed catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for processing. NMFS will account for harvest and processing of Aleutian Islands Pacific cod under the Aleutian Islands CV Harvest Set-Aside separate from, and in addition to, its accounting of Aleutian Islands Pacific cod catch by the nine non-CDQ fishery sectors established in § 679.20(a)(7)(ii). Because of this separate accounting, the Aleutian Islands CV Harvest Set-Aside will not increase or decrease the amount of BSAI Pacific cod allocated to any of the non-CDQ fishery sectors. The Aleutian Islands CV Harvest Set-Aside will apply from January 1 until March 15 of each year if certain notification and performance measures, described in the following section of the preamble, are satisfied.

    The amount of the Aleutian Islands CV Harvest Set-Aside will be calculated as described above for the Bering Sea Trawl CV A-Season Sector Limitation. It will be an amount equal to the lesser of either the Aleutian Islands DFA or 5,000 mt. NMFS will notify the public of the Aleutian Islands CV Harvest Set-Aside through the annual harvest specifications process.

    When the Aleutian Islands CV Harvest Set-Aside is set equal to the Aleutian Islands DFA and the set-aside is in effect, directed fishing for Pacific cod in the Aleutian Islands may only be conducted by vessels that deliver their catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for processing. Vessels that do not want to deliver their directed catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for processing will be prohibited from directed fishing for Pacific cod in the Aleutian Islands when the Aleutian Islands CV Harvest Set-Aside is in effect. These vessels will be permitted to conduct directed fishing for groundfish other than Pacific cod in the Aleutian Islands when the Aleutian Islands CV Harvest Set-Aside is in effect, and their incidental harvests of Pacific cod will accrue toward the Aleutian Islands ICA. CPs will be permitted to conduct directed fishing for Pacific cod in the Aleutian Islands when the Aleutian Islands CV Harvest Set-Aside side is in effect as long as they act only as CVs and deliver their directed catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for processing. CPs also will be permitted to retain and process Aleutian Islands Pacific cod that is caught as incidental catch while directed fishing for groundfish other than Pacific cod, and those incidental harvests of Pacific cod will accrue toward the Aleutian Islands ICA.

    When the Aleutian Islands DFA is greater than 5,000 mt, and therefore the Aleutian Islands CV Harvest Set-Aside is set equal to 5,000 mt, the difference between the DFA and the Aleutian Islands CV Harvest Set-Aside will be available for directed fishing by all non-CDQ fishery sectors with sufficient A-season allocations and may be processed by any eligible processor. This difference is called the “Aleutian Islands Unrestricted Fishery.” In years when there is both an Aleutian Islands CV Harvest Set-Aside and an Aleutian Islands Unrestricted Fishery, vessels may conduct directed fishing for Pacific cod in the Aleutian Islands and deliver their catch to Aleutian Islands shoreplants or to any eligible processor for processing as long as the Aleutian Islands Unrestricted Fishery is open to directed fishing. CPs will be permitted to conduct directed fishing for Pacific cod in the Aleutian Islands and process that directed catch as long as the Aleutian Islands Unrestricted Fishery is open to directed fishing. NMFS will determine whether the Aleutian Islands Unrestricted Fishery is sufficient to support a directed fishery and will notify the public through a notice in the Federal Register.

    While the Aleutian Islands CV Harvest Set-Aside is in effect, NMFS will account for Aleutian Islands Pacific cod caught by vessels against the appropriate fishery sector allocation, the ICA or the DFA, and the Aleutian Islands CV Harvest Set-Aside. Examples illustrating this accounting are provided in the preamble of the proposed rule.

    If certain notification and performance measures are met, the Aleutian Islands CV Harvest Set-Aside will be in effect from January 1 until March 15 of each year. If the entire set-aside is harvested and delivered prior to March 15, NMFS will lift the Bering Sea Trawl CV A-Season Sector Limitation and Aleutian Islands CV Harvest Set-Aside as soon as possible. The Aleutian Islands CV Harvest Set-Aside will end at noon on March 15 even if the entire set-aside has not been harvested and delivered to Aleutian Islands shoreplants.

    When the set-aside ends, any remaining Aleutian Islands DFA may be harvested by any non-CDQ fishery sector with remaining A-season allocation, and the harvest may be delivered to any eligible processor. If a vessel has been directed fishing for Aleutian Islands Pacific cod, but has not yet delivered that Pacific cod for processing when the harvest set-aside is lifted, that vessel may deliver its Pacific cod to any eligible processor. If a vessel has been directed fishing for Aleutian Islands Pacific cod, but has not yet delivered that Pacific cod for processing when the Aleutian Islands Unrestricted Fishery closes, but the Aleutian Islands CV Harvest Set-Aside is still in effect, it will be required to deliver that Pacific cod to an Aleutian Islands shoreplant for processing or be in violation of the directed fishing closure.

    The preamble to the proposed rule provides additional background on the factors that the Council and NMFS considered when determining the amount and timing of the Aleutian Islands CV Harvest Set-Aside and is not repeated here.

    Measures To Prevent Stranding of Aleutian Islands Non-CDQ Pacific Cod TAC

    Stranding is a term sometimes used to describe TAC that remains unharvested due to regulations. This final rule includes performance measures intended to prevent the stranding of Aleutian Islands non-CDQ Pacific cod TAC if the set-aside is not requested, if limited processing occurs at Aleutian Islands shoreplants, or if the Aleutian Islands CV Harvest Set-Aside is taken before March 15.

    The first performance measure requires that either the City Manager of the City of Adak or the City Administrator of the City of Atka notify NMFS of the city's intent to process Aleutian Islands Pacific cod in the upcoming fishing year. If neither city notifies NMFS in accordance with regulatory requirements described below, the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside will not be in effect for the upcoming fishing year.

    This final rule requires annual notification to NMFS in the form of a letter or memorandum signed by the City Manager of Adak or the City Administrator of Atka stating the city's intent to process Aleutian Islands Pacific cod in the upcoming fishing year. This signed letter or memorandum is the official notification of intent. The official notification of intent must be postmarked no later than December 8, 2016, and no later than October 31 for each year after 2016. The official notification of intent must be submitted to the NMFS Alaska Regional Administrator by certified mail through the United States Postal Service. The City Manager of Adak or City Administrator of Atka must also submit an electronic copy of the official notification of intent and the certified mail receipt with postmark via email to NMFS ([email protected]) no later than December 8, 2016, and no later than October 31 for each year after 2016. Email submission of electronic copies of the official notification of intent and the certified mail receipt with postmark will provide NMFS with the timely information it needs to manage the upcoming fisheries. Email notification is in addition to notification via certified U.S. Mail and does not replace the requirement for notification through the U.S. Postal Service.

    A city's notification of intent to process Aleutian Islands Pacific cod must contain the following information: Date, name of city, a statement of intent to process Aleutian Islands Pacific cod, statement of calendar year during which the city intends to process Aleutian Islands Pacific cod, and the signature of and contact information for the City Manager or City Administrator of the city whose shoreplant is intending to process Aleutian Islands Pacific cod.

    On or shortly after December 8, 2016, and November 1 for each year after 2016, the Regional Administrator will send a signed and dated letter either confirming receipt of the city's notification of their intent to process Aleutian Islands Pacific cod, or informing the city that notification was not received by the deadline.

    While this final rule will make the set-aside available for processing by any shoreplant west of 170° W. longitude in the Aleutian Islands, the notification requirement is required from either Adak or Atka and not another city that might have an Aleutian Islands shoreplant in the future. The Council and NMFS's rationale for this is provided in the preamble of the proposed rule.

    The second performance measure removes the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside for the remainder of the A-season if less than 1,000 mt of the Aleutian Islands CV Harvest Set-Aside is delivered to Aleutian Islands shoreplants by February 28. This performance measure will lift the Aleutian Islands CV Harvest Set-Aside and make any remaining amount of the set-aside available to all participants if Aleutian Islands shoreplants are unable to process Pacific cod or if too few or no vessels decide to participate in the set-aside fishery.

    The third performance measure suspends the Bering Sea Trawl CV A-Season Sector Limitation for the remainder of the year if the entire Aleutian Islands CV Harvest Set-Aside (5,000 mt in 2017) is fully harvested and delivered to Aleutian Islands shoreplants before March 15.

    The preamble to the proposed rule provides additional background on the factors considered by the Council and NMFS when establishing these performance standards and is not repeated here.

    Harvest Specifications Process To Announce BSAI A-Season Pacific Cod Limits Implemented by Amendment 113

    During the annual harvest specifications process described in the proposed rule, NMFS will publish in the proposed harvest specifications the amounts for the Aleutian Islands ICA, DFA, CV Harvest Set-Aside, and Unrestricted Fishery, as well as the Bering Sea Trawl CV A-Season Sector Limitation, and the amount available for harvest by trawl CVs in the Bering Sea while the set-aside is in effect. These amounts will be published in a separate table to supplement the table in the harvest specifications that describes the final gear shares and allowances of the BSAI Pacific cod TAC for the upcoming year.

    NMFS also will publish a notice in the Federal Register shortly after December 8, 2016, and November 1 for each year after 2016, announcing whether the Aleutian Islands CV Harvest Set-Aside and Bering Sea Trawl CV A-Season Sector Limitation will be in effect for the upcoming fishing year, and whether the harvest limits in the supplemental table will apply. If necessary, NMFS will publish in the Federal Register an adjustment of the BSAI A-season Pacific cod limits for the upcoming year after the Council adopts the harvest specifications in December.

    Amendment of the 2017 Final Harvest Specifications for the Groundfish Fishery of the BSAI

    With this final rule, NMFS amends the 2017 final harvest specifications for the groundfish fishery of the BSAI by adding the following Table 8a, which specifies the Aleutian Islands ICA, DFA, CV Harvest Set-Aside, and Unrestricted Fishery, as well as the Bering Sea Trawl CV A-Season Sector Limitation. If NMFS receives timely notification of intent to process from either Adak or Atka, the harvest limits in Table 8a will be in effect in 2017.

    Table 8a—2017 BSAI A-Season Pacific Cod Limits if Aleutian Islands Shoreplants Intend To Process Pacific Cod 2017 Allocations under Aleutian Islands CV Harvest Set-Aside Amount
  • (mt)
  • AI non-CDQ TAC 11,465 AI ICA 2,500 AI DFA 8,965 BS non-CDQ TAC 213,141 BSAI Trawl CV A-Season Allocation 36,732 BSAI Trawl CV A-Season Allocation minus Sector Limitation 1 31,732 BS Trawl CV A-Season Sector Limitation 5,000 AI CV Harvest Set-Aside 5,000 AI Unrestricted Fishery 3,965 1 This is the amount of the BSAI trawl CV A-season allocation that may be harvested in the Bering Sea prior to March 21.
    Changes From the Proposed Rule

    NMFS made three changes to the regulatory text from the proposed rule. Two of these changes are in response to comments received on the proposed rule, and one change is made to address administration of this final rule in 2016.

    First, this final rule modifies § 679.20(a)(7)(viii)(E)(4) in response to Comment 8. The words “prior to” are changed to “on or before” to reflect the Council's intent. See the response to Comment 8 for the complete justification for this change.

    Second, this final rule modifies § 679.20(a)(7)(viii)(D) and (E) to specify that the City Manager of Adak and the City Administrator of Atka are the individuals responsible for notifying NMFS of their city's intent to process Pacific cod in the upcoming year. See the response to Comment 5 for the complete justification for this change.

    Third, this final rule modifies § 679.20(a)(7)(viii) to include a separate notification deadline for 2016 for the City Manager of Adak or the City Administrator of Atka to notify NMFS of the intent to process Aleutian Islands Pacific cod in 2017. This final rule requires that the official notification of intent to process for 2017 be postmarked and emailed no later than December 8, 2016. This final rule clarifies that for all years after 2016, this annual notification must be postmarked and emailed no later than October 31.

    This change is required to ensure that NMFS provides an opportunity for the City of Adak and the City of Atka to notify NMFS of their intent to process after this final rule has published. Because this final rule will publish and become effective after October 31, 2016, the City of Adak and the City of Atka could not provide timely notification to NMFS of their intent to process in 2017 without this change in the notification deadline. This change enables the cities of Adak and Atka, and vessels delivering to Aleutian Island shoreplants, to receive the benefits of this final rule in 2017 that would otherwise be foregone without this change. NMFS is providing 15 days after the publication of this rule for the City of Adak or the City of Atka to notify NMFS so that the cities have adequate time after the publication of this final rule to prepare and submit their official notification of intent.

    NMFS determined that this change will not affect participants in the Aleutian Islands Pacific cod fishery in ways not previously considered and analyzed. The 2016 deadline for submitting notification of intent to process falls between the two dates considered by the Council: Prior to November 1 or prior to December 15. In considering the effect these notification deadlines, the Analysis focuses on the ability of the industry to react if there are no Aleutian Islands shoreplants operating in the upcoming fishing year, stating that selection of the earlier deadline would provide more time for the industry to make the necessary arrangements to harvest and process the non-CDQ Aleutian Islands Pacific cod DFA, and that in general, more notification concerning processing of Aleutian Islands Pacific cod in the upcoming fishing year will help to reduce the risk of unharvested non-CDQ Aleutian Islands Pacific cod TAC. Even so, the Analysis concludes that both date options would give fishery participants sufficient time to plan and prepare before the A-season begins and that ideally notice of intent to process would be provided to NMFS by a date near the end of the December Council meeting. NMFS continues to agree with the Council that October 31 is the preferred deadline of the two dates considered, and this final rule establishes October 31 as the deadline for submission of notification of intent for each fishing year after 2016. However, NMFS has determined that the notification deadline for 2016 will allow Adak and Atka an opportunity to submit notification prior to the start of the 2017 fishing year, thus providing an opportunity for the set-aside to be effective in 2017, rather than having to wait an additional year. Additionally, the 2016 notification deadline will provide fishery participants with sufficient time to plan and prepare before the A-season begins because NMFS will be able to notify fishery participants as to whether the set-aside will be in effect for 2017 prior to December 15 and prior to the end of the December Council meeting. In addition, this change is applicable only for the first year of implementation of this final rule, and will therefore have a limited and temporary effect.

    Responses to Comments

    NMFS received 35 unique comments on Amendment 113 and the proposed rule in 18 comment letters from 16 different commenters. The 16 commenters consisted of 2 individuals; 7 companies representing CPs; the Alaska Department of Fish and Game; 1 fish processing company; 1 CDQ group; 2 community development corporations, 1 Aleutian Islands municipal government; and 1 non-profit conservation organization. Of the 16 commenters, 9 explicitly supported adoption of the proposed harvest set-aside. Opponents were companies representing CPs whose vessels could be restricted by this action.

    In responding to these comments, when NMFS refers to Amendment 113, unless otherwise noted, NMFS means Amendment 113 and this final rule implementing Amendment 113.

    General Comments

    Comment 1: This action is unnecessary. When Adak has an operational plant, it received a significant portion of the Aleutian Islands Pacific cod catch without delivery requirements.

    Response 1: In February 2015, the Council identified in a modified problem statement the purpose and need for protections for Aleutian Islands communities as a result of the implementation of rationalization programs, the BSAI Pacific cod TAC split, and relatively low Pacific cod abundance in the Aleutian Islands, among other factors (Section 2.2 of the Analysis). The Council stated that these factors have “. . . increased the risk that the historical share of BSAI cod of other industry participants and communities that depend on shoreplant processing in the region may be diminished.” The Council's rationale for its preferred alternative stated that this action “. . . would provide benefits and stability to fishery dependent communities in the Aleutian Islands and is responsive to changes in management regimes like rationalization programs that necessitate putting protections in place to protect other non-rationalized fisheries” (Section 2.4.3 of the Analysis). The Council's purpose and need statement, the proposed rule, and the Analysis describe the range of factors that have affected delivery patterns in the Aleutian Islands that could limit opportunities for Aleutian Islands shoreplants, harvesters delivering to Aleutian Islands shoreplants, and the communities in the Aleutian Islands. Thorough descriptions of the factors necessitating this action, and the Council's rationale are provided in the “Need for This Proposed Rule” section of the proposed rule and the Analysis and are not repeated here.

    In years when the Adak shoreplant was not operational, the offshore processing sector (primarily CPs) was able to process the entire Aleutian Islands TAC (Section 2.7.1.2 of the Analysis), demonstrating that the offshore sector is capable of fully harvesting available catch and preempting the onshore sector's access to the fishery. Table 2-32 of the Analysis shows that prior to 2008, the majority of the Aleutian Islands Pacific cod processed by the offshore sector originated from CP harvest, but after 2008, CV deliveries of Aleutian Islands Pacific cod to CPs played a more prominent role in the offshore processing of Aleutian Islands Pacific cod. Although Aleutian Islands shoreplants operating in Adak have received Pacific cod without a harvest set-aside in the past, NMFS and the Council determined that this action is necessary to minimize the risk of diminished share of Aleutian Islands Pacific cod to Aleutian Islands communities dependent on the fishery and to provide additional stability to promote and sustain Aleutian Islands shoreplants, harvesters delivering to Aleutian Islands shoreplants, and the communities in the Aleutian Islands.

    Comment 2: The proposed rule assumes that the increase in offshore processing since the implementation of rationalization programs was a major cause of instability in onshore processing in the Aleutian Islands, but this is not true. There have been long-standing challenges to the viability of shore-based processing in the Aleutian Islands such as ownership changes of Aleutian Islands shoreplants, Steller sea lion protection measures, plant insolvency, energy costs, employment challenges, market conditions, and product transportation difficulties.

    Response 2: As explained in the “Need for This Proposed Rule” section of the preamble to the proposed rule and in Section 2.2 of the Analysis, the Council and NMFS recognize that several factors have contributed to instability in processing operations in the Aleutian Islands, including decreased Pacific cod biomass in the Aleutian Islands subarea; the establishment of separate OFLs, ABCs, and TACs for Pacific cod in the Bering Sea and the Aleutian Islands (referred to as the “BSAI TAC split”); changing Steller sea lion protection measures; historical volatility in the Aleutian Islands shoreplant processing sector; and changing fishing practices in part resulting from rationalization programs. The Council, NMFS and this rule do not assume that rationalization programs are the primary cause of this instability, but rather, one of many contributing factors.

    Comment 3: This is a wipe-out plan for cod. It will wipe out cod just as this agency did in Maine. Some other system has to be set up for economic sustainability for people in the area. Stop this plan now.

    Response 3: NMFS disagrees that Amendment 113 will wipe out Pacific cod. This action will not change the TAC for Aleutian Islands Pacific cod, or conservation and management measures that ensure that harvests of Aleutian Islands Pacific cod do not exceed established OFL, ABC, or TAC limits. Aleutian Islands Pacific cod is managed to a TAC that is set at or below the ABC and the stock is neither overfished nor approaching an overfished condition (see Section 3.3 of the Analysis).

    Comment 4: There is no provision in the proposed rule to remove the Aleutian Islands CV Harvest Set-Aside from the FMP and Federal regulations if no on-shore processing activity occurs for a number of years. Does the set-aside continue indefinitely? What would prompt Council re-examination?

    Response 4: The commenter is correct; there is no provision in Amendment 113 or this rule that would end, or sunset, the Aleutian Islands CV Harvest Set-Aside if Aleutian Islands shoreplants are not operational for a specified number of years. However, under the performance measures established by this final rule, the Aleutian Islands CV Harvest Set-Aside is effective in a fishing year only if timely and complete notification of intent to process from the City of Adak or the City of Atka is received by NMFS. Presumably, if there is not likely to be an operational Aleutian Islands shoreplant in the upcoming fishing year, these cities would not submit a notification to NMFS. Also, in order for the set-aside to continue to be effective after February 28, a minimum of 1,000 mt of Aleutian Islands Pacific cod must be delivered to Aleutian Islands shoreplants on or before February 28. If, in the future, it appears that the Aleutian Islands CV Harvest Set-Aside is not being used, or Aleutian Islands shoreplants cannot meet the demand, the Council could consider and, if warranted, initiate an action to revise or remove the provisions of Amendment 113 and its implementing regulations.

    Comment 5: The proposed rule grants de facto fishery management authority to municipal officials, by requiring them to provide notice to NMFS of the Aleutian Islands shoreplants intent to process Pacific cod in the upcoming year. NMFS is surrendering the determination of whether a shore plant is prepared to process Pacific cod to a community representative who is not a regulated participant in the fishery. This is granting too much power to one individual. The city manager could use this authority to undermine certain businesses or to grant favors. Additionally, Atka does not have a city manager.

    Response 5: The Council specified that the City of Adak or the City of Atka should be the entity to provide official notification to NMFS of the community's intent to process Pacific cod, but it did not specify who from Adak or Atka should provide such notification (Section 2.7.2.4 of the Analysis). The Analysis describes that if the notification requirement is implemented, NMFS could specify the person representing the city who should provide the notification.

    The commenter notes that the City of Atka does not have a city manager. Technically, that is accurate: Atka has a city administrator. Title 29 of the Alaska Statutes explains the distinctions between a city manager and a city administrator. In the manager form of municipality, the city manager is the chief executive. In a strong-mayor form of municipality, the mayor is the chief executive and the city administrator can exercise powers or duties only as delegated by the mayor and city council. In either case, the role of the manager or administrator is to represent the interests of the city, city council, and mayor. The language in the final rule has been changed to reflect that the city administrator is the person responsible for providing notification to NMFS for Atka.

    This type of designation is not unprecedented. For example, in an action to create Community Quota Entities (CQE) for the Halibut and Sablefish Individual Fishing Quota Program (Amendment 66 to the Gulf of Alaska FMP, 69 FR 23681, April 30, 2004), NMFS specified which governing body would be responsible for proposing a potential CQE to NMFS, depending on the governance structure of the particular community. For communities incorporated as municipalities, the governing body identified was the city council. In communities represented by tribal governments, the governing body was the non-profit entity. In similar fashion, and as described in the proposed rule for this action, NMFS determined that the city manager or administrator would be the appropriate person responsible for submitting the required notification to NMFS.

    While ownership and management of fish processing facilities may change, it is likely that there will always be someone performing the role of city manager or administrator for Adak and Atka. As elected or appointed officials, these representatives are bound by oath of office to uphold the wishes of their constituents. Currently, both the City of Adak and the City of Atka execute, in good faith, waivers for the delivery requirement for Western Aleutian Islands golden king crab when sufficient processing capacity does not exist in those communities. These cities issue the waiver knowing that it is not in the communities' best interests to strand the crab resource. The notification requirement under Amendment 113 is similar, and it is not clear how the requirement to notify NMFS of the communities' intent to process Pacific cod grants too much power to the city manager or administrator. NMFS expects that the city manager or administrator will be in communication with the shoreplant manager and local fishing fleet prior to the notification deadline to ensure that the shoreplant will be able to accept deliveries of Pacific cod once the set-aside goes into effect. If, for some reason, the shoreplant does not operate as anticipated, the 1,000 mt minimum processing performance measure would not be met by February 28 and the set-aside would be lifted.

    NMFS does not consider the notification requirement to be a de facto grant of fishery management authority to the city manager or administrator. The Council and NMFS have established the fishery management policy with regard to Aleutian Islands Pacific cod. The intent of the Council and NMFS with Amendment 113 and this final rule is to have an Aleutian Islands CV Harvest Set-Aside in place for Aleutian Islands fishing communities, and the harvesters and shoreplants that are part of those communities, to utilize. Recognizing that there may be years when Aleutian Islands shoreplants may not be operational, the notification provision was a fishery management decision by the Council and NMFS to provide for an orderly start to the fishing year and as a way to prevent the set-aside from becoming effective if neither city intends to process in the upcoming fishing year. The city manager or administrator is the person from whom NMFS will expect to receive notification of the city's intent to process Pacific cod and to whom NMFS will confirm that notification has been received. Under this final rule, the city manager or administrator is providing information to NMFS on anticipated processing activities based on knowledge gained from Aleutian Islands shoreplants in their communities. City managers and administrators are not delegated any authority to open or close fisheries, assess catch amounts, or take other actions provided in regulation. Notification is not to be confused with an active role in administering regulations. NMFS is ultimately responsible for taking any management actions once a notification has been received.

    Comment 6: If this rule is implemented, NMFS will notify Adak or Atka city managers if they have not received their notifications of intent to process. This seems at odds with other programs that have notification dates, such as submission of annual cooperative notifications to NMFS. There is no regulatory language that provides for NMFS to notify the entity or person that it has not received cooperative information regarding the next year's intent to process.

    Response 6: The commenter is referring to the regulatory language at (a)(7)(viii)(D)(3) which explains how NMFS will provide confirmation to the City Manager of the City of Adak or the City Administrator of the City of Atka if their notification of intent to process Aleutian Islands Pacific cod has been received or not. This confirmation is to let the city know that the set-aside will or will not be in effect for the upcoming year. Similarly, NMFS will publish a notice in the Federal Register to inform the public whether the set-aside will be in effect. NMFS will not offer these cities additional time to provide notification if it was not received by the deadline and according to the requirements stated in regulations.

    Comment 7: NMFS received 11 comment letters from 9 different entities in support of Amendment 113 and its implementing regulations. In general, the comments emphasized that three interacting issues have affected the viability of shoreside operations in the Aleutian Islands: the BSAI Pacific cod biomass estimates and TAC split, Steller sea lion protection measures, and rationalization programs. The commenters noted that fish processing is the core economic driver for the communities of Adak and Atka and that these communities have been negatively impacted by prior management actions. They stressed that Aleutian Islands communities, Adak and Atka in particular, need the kind of protections that the Council has provided to communities in the Gulf of Alaska (GOA) and Bering Sea for pollock, and to GOA communities for Pacific cod by limiting the amount that can be delivered either inshore or offshore. These commenters considered stable access to at least 5,000 mt of Aleutian Islands Pacific cod from the Federal fishery essential for maintaining viable communities in Adak and Atka. These commenters concluded that this final rule provides community protections for shorebased processing in the Aleutian Islands management area that are critical to the survival of Aleutian Islands communities.

    Response 7: NMFS acknowledges the comments in support of Amendment 113. The Secretary, through her designee, the Assistant Administrator for Fisheries, approved Amendment 113 on October 17, 2016, and implements Amendment 113 with this final rule. The Secretary concluded that the Aleutian Islands CV Harvest Set-Aside in Amendment 113 is consistent with the Magnuson-Stevens Act, including the National Standards, and other applicable law.

    Comment 8: The proposed regulatory language for the minimum Aleutian Islands shoreplant landing requirement at § 679.20(a)(7)(viii)(E)(4) states that “if less than 1,000 mt of the Aleutian Islands Catcher Vessel Harvest Set-Aside is landed at Aleutian Islands shoreplants prior to February 28, then paragraphs (a)(7)(viii)(E)(1) for the Bering Sea Trawl CV A-season Sector Limitation and (2) for the Aleutian Islands CV Harvest Set-Aside will not apply for the remainder of the fishing year.” However, the preamble to the proposed rule and the Council motion clearly state that this performance measure must be met “by” February 28. This change in the proposed regulatory language from the Council's motion would give Aleutian Islands shoreplants one less day to fulfill the minimum delivery requirements. This one-day difference is not insignificant to Aleutian Islands shoreplants. An average of 178 mt of Pacific cod was landed at Adak on February 28 from 2002 through 2009. Landings on February 28 represent a substantial portion of the proposed 1,000-mt minimum landing requirement performance measure. The commenters request that the proposed regulatory language at § 679.20(a)(7)(viii)(E)(4) be changed so that landings made “on or before” February 28 will count toward the performance measure threshold.

    Response 8: NMFS agrees. The Council motion, the preamble to the proposed rule, the Analysis, the FMP amendment text, and the notice of availability for the FMP amendment all state that 1,000 mt must be landed “by,” not “prior to,” February 28. The proposed regulatory language was inadvertently written in a way that contradicts the Council's intent for this performance measure. Inclusion of February 28 in the minimum landings period is important and necessary. As noted in Section 2.7.2.5 of the Analysis, Aleutian Islands Pacific cod tend to aggregate in late February to early March, and these aggregations are optimal for efficient trawl fishing. NMFS has changed § 679.20(a)(7)(viii)(E)(4) to clarify that landings made “on or before” February 28, rather than “prior to” February 28, will be used to determine whether the minimum landings requirement has been met.

    Comment 9: As a longtime, small boat, Aleutian Islands fisherman, it is vital to my longline operation and to other small and entry level vessel owners to have a stable shoreside processing facility in the Aleutian Islands. Amendment 113 will create numerous opportunities for small boats and the community of Adak.

    Response 9: NMFS acknowledges the support for this action.

    Comment 10: We support solutions that optimize and create sustainable social, economic, and conservation outcomes. Amendment 113 and this final rule will help the economic sustainability of Adak and Atka and will help the aspirations of the Aleut people to repopulate some of the islands of the western Aleutians. Amendment 113 and this final rule may also improve the conservation and ecosystem sustainability of the area. Giving the local inhabitants a larger financial stake in the sustainability of the local ecosystem is an important step in a long process leading to better conservation. We firmly believe that where local, and particularly Alaska Natives, have more control over resource extraction, the conservation outcome is likely to be better.

    Response 10: NMFS acknowledges the comment and the support for Amendment 113 and this final rule.

    Comment 11: Trawl vessels catch large quantities of vulnerable deep sea corals and sponges in the area. Shifting to other gear types in the Aleutian Islands Pacific cod fishery may help protect these vulnerable species.

    Response 11: NMFS acknowledges the comment but notes that this final rule does not modify the areas or types of gear that can be used to harvest fishery resources in the Aleutian Islands.

    Comment 12: There is an error in the fourth row of Table 4 in the preamble of the proposed rule. The fourth row in Table 4 refers to the “BSAI non-CDQ TAC.” This row should have read “BS non-CDQ TAC.”

    Response 12: NMFS agrees that the fourth row in Table 4 of the proposed rule preamble should have read “BS non-CDQ TAC.” The amount of Pacific cod proposed for the BS non-CDQ TAC in the fourth row of Table 4 was accurate. This final rule modifies the final 2016 and 2017 harvest specifications to add a supplemental table, Table 8a, that provides the 2017 catch limits for Pacific cod under Amendment 113 and this final rule. NMFS will publish a notice in the Federal Register in December 2016 if there will be any changes to these amounts. NMFS will also publish a notice in the Federal Register to inform the public if the Aleutian Islands CV Harvest Set-Aside and Bering Sea Trawl Catcher Vessel Sector Limitation will be in effect in 2017. Table 8a displays the correct name of the allocation and the correct amount. No changes to the regulatory text are necessary in response to this comment.

    Comment 13: The agency has not followed the requisite process under the National Environmental Policy Act (NEPA). In particular, an environmental impact statement (EIS) should have been completed. The action is clearly controversial, as it has been under consideration for over 8 years in the Council process. A more thorough review might have compelled NMFS to reject this action.

    Response 13: According to NEPA and Council on Environmental Quality (CEQ) regulations at 40 CFR 1502.3, an EIS is required when a fishery management action may significantly affect the quality of the human environment. Determining whether an action may significantly affect the quality of the human environment requires considerations of both context and intensity, and regulations at 40 CFR 1508.27(b) list several factors that are to be considered in evaluating the intensity of an action. One of these factors is the degree to which the effects on the quality of the human environment are likely to be highly controversial (40 CFR 1508.27(b)(4)). Before deciding whether to complete an EIS, agencies may prepare an EA to determine whether an EIS must be prepared or a finding of no significant impact (FONSI) can be made (40 CFR 1501.3 and 1508.9). If the EA results in a FONSI, an EIS is not needed.

    Courts have held that an action is “highly controversial” when there is a substantial dispute about the size, nature, or effect of the action, or when substantial questions are raised as to whether a proposed action may cause significant degradation of some human environmental factor. Courts have also held that the existence of opposition to an action does not raise the level of controversy to the point that an EIS is required. Additionally, as stated in 40 CFR 1508.14 and in Section 3 of the Analysis, economic and social impacts by themselves are not sufficient to require the preparation of an EIS.

    In accordance with NEPA and the CEQ regulations, the Council and NMFS appropriately prepared an EA for this action, which analyzes the potential effects of the action on individual resource components, as well as the potential cumulative effects. The EA was prepared using the best available scientific information. Using the information and analysis in the EA, the Council and NMFS reviewed the potential impacts of this action on the human environment as required under NEPA. After reviewing the impacts of this action, the Regional Administrator prepared and signed a FONSI, determining that the action will not result in significant impacts to the quality of the human environment, and further analysis in an EIS is not needed. NMFS determined that the action will make relatively minor changes to the timing and location of fishing for Pacific cod by vessels in the BSAI and that no significant changes in total harvests or when, where, and how fishing occurs are expected with the action.

    The commenter implies that the length of time it took the Council to consider and take final action on Aleutian Islands community protection measures makes Amendment 113 and the regulations inherently controversial and therefore requires the preparation of an EIS. NMFS disagrees that the mere length of time this action was under consideration by the Council is indicative of a level of controversy that requires the preparation of an EIS. The implementation of several rationalization programs, Steller sea lion protection measures, the BSAI TAC split, and decreasing biomass of Aleutian Islands Pacific cod, all of which occurred while the Council was considering community protection measures for the Aleutian Islands, considerably changed the way in which the BSAI Pacific cod fishery was managed and conducted by participants. The Council reasonably wanted to examine and understand the effects these changes would have on the BSAI Pacific cod fishery before taking final action. After examining the effects of these changes on Aleutian Islands communities, the Council determined that the community protections that will be implemented by Amendment 113 and this final rule are warranted and necessary. The effects of this action on the quality of the human environment are not in dispute. To the extent that there has been controversy over, or opposition to, the action, the controversy or opposition has been largely related to potential economic and social impacts which do not require the preparation of an EIS.

    Comments Related to the Magnuson-Stevens Act and the National Standards

    Comment 14: National Standard 4 of the Magnuson-Steven Act states, “Conservation and management measures shall not discriminate between residents of different states. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.” Amendment 113 and this final rule violate National Standard 4. In fact, a 2009 letter from Acting Regional Administrator Mecum to North Pacific Fishery Management Council Chair Olson noted that the proposed set-aside could violate National Standard 4's requirements that allocations be fair and equitable and do not create excessive shares. They are not fair and equitable, do not promote conservation, and would allocate an excessive share to a particular entity. The plant in Atka has never processed cod and has no historical dependency on the Federal non-CDQ Aleutian Islands Pacific cod fishery. Adak is the sole entity that will benefit from this action. Adak would receive an excessive share, i.e., the entire Aleutian Islands CV Harvest Set-Aside, which is a de facto processor share not authorized by the Magnuson-Stevens Act.

    Response 14: NMFS has determined that this action is consistent with National Standard 4. Amendment 113 and this final rule do not include any measures that discriminate between residents of different states. While Amendment 113 and this final rule establish the set-aside for vessels that deliver their catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for processing, any properly permitted and licensed vessel, operated by any resident of any community or state, can participate in the Aleutian Islands CV Harvest Set-Aside. Participation in the set-aside or in the Unrestricted Fishery is not premised on residency in a particular state. Participation in the BSAI Pacific cod fishery is governed by regulations that were determined to be consistent with National Standard 4 and neither Amendment 113 nor this final rule change the permitting and licensing requirements currently in place. This final rule does not preclude residents of any state from participation in any fishery in the Aleutian Islands as either a harvester or operator of an Aleutian Islands shoreplant. Appropriately licensed and endorsed vessels will still have the opportunity to prosecute the fishery, and any person wishing to operate a processing facility with the appropriate license in the area may still do so.

    Amendment 113 and this final rule establish a set-aside that allocates the Aleutian Islands non-CDQ Pacific cod DFA during a portion of the A-season among those harvesting vessels that conduct directed fishing for Aleutian Islands Pacific cod and deliver their catch to Aleutian Islands shoreplants for processing and those harvesting vessels that conduct directed fishing for Aleutian Islands Pacific cod and deliver their catch for processing to any eligible processor other than Aleutian Islands shoreplants. Therefore, this allocation must be fair and equitable to all such fishermen, reasonably calculated to promote conservation, and carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges, consistent with National Standard 4. For the reasons provided below, NMFS has determined that Amendment 113 and this final rule are consistent with National Standard 4's requirements for allocations.

    NMFS has determined that the set-aside is fair and equitable to all participants in the BSAI Pacific cod fishery. Vessels from all non-CDQ sectors can participate in the set-aside and each sector will continue to have access to its entire BSAI Pacific cod allocation. This action also addresses an inequity that has occurred, in part, from the establishment of rationalization programs and minimizes the risk of future inequities in the prosecution of the Aleutian Islands Pacific cod fishery. The Council and NMFS determined that the protections in Amendment 113 and this final rule are necessary to mitigate the effects of previous Council actions. Offshore processing activity has taken an increasing proportion of the Aleutian Islands Pacific cod fishery in some recent years due to a variety of factors described in the preamble to the proposed rule and in the Analysis. At the same time, the historical share of the BSAI Pacific cod fishery delivered to Aleutian Islands shoreplants has decreased.

    The maximum cap of 5,000 mt for set-aside is representative of the long-term average annual amount of Pacific cod processed by Aleutian Islands shoreplants that includes years both before and after significant changes in the BSAI Pacific cod fishery occurred. Establishing a maximum amount, rather than a percentage, for the set-aside will protect Aleutian Islands fishing communities during years of relatively low Aleutian Islands Pacific cod TAC, will ensure the set-aside remains representative of past participation levels by Aleutian Islands fishing communities, and will benefit those who do not participate in the set-aside fishery during years of relatively high Aleutian Islands Pacific cod TAC by allowing the amount allocated to the Unrestricted Fishery to increase with increases in TAC.

    This action is also fair and equitable because the set-aside will be in effect only when the Aleutian Islands fishing communities it is intended to benefit are prepared and actively engaged in participation. When Aleutian Islands communities are unable to accept deliveries of Pacific cod for processing, there are mechanisms built into the final rule that will lift the set-aside and allow others to have access to the remaining harvest.

    NMFS also has determined that the set-aside is reasonably calculated to promote conservation. Amendment 113 and this final rule do not modify the process for specifying OFLs, ABCs, or TACs for the Bering Sea and Aleutian Islands Pacific cod fishery, the allocation of BSAI Pacific cod to CDQ and non-CDQ fishery participants that is established in existing regulations, or the allocation of BSAI Pacific cod among non-CDQ fishery participants. NMFS will continue to manage the fishery so that harvests stay within specified and allocated amounts. Additionally, Amendment 113 and this final rule continue to promote and do not undermine the conservation measures established under the Steller sea lion protection measures, Amendment 85 allocations, and Amendment 80 rationalization.

    Finally, NMFS determined that the set-aside will be carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of the Aleutian Islands Pacific cod fishery. NOAA's guidance on National Standard 4 states that “only those measures that result in direct distributions of fishing privileges will be judged against the allocation requirements of Standard 4” (§ 600.325(c)(1)). This final rule establishes a set-aside for any otherwise eligible vessel that conducts directed fishing for Aleutian Islands Pacific cod and delivers its catch to any Aleutian Islands shoreplant for processing. No particular individual, corporation, or other entity participating in either the set-aside or the Unrestricted Fishery will be able to acquire an excessive share of the Aleutian Islands Pacific cod fishery under Amendment 113 and this final rule. All vessels will continue to have catch attributed to their sector, and Amendment 113 and this final rule do not create any new allocations to particular individuals, corporations, or other entities fishing for Aleutian Islands Pacific cod. Additionally, Amendment 113 and this final rule do not limit participation in the set-aside to a discreet subset of vessels that meet certain criteria. As explained earlier, any properly permitted and licensed vessel, operated by any resident of any community or state, within any BSAI Pacific cod non-CDQ sector can participate in the Aleutian Islands CV Harvest Set-Aside.

    The commenter asserts that Adak will receive an excessive share in violation of National Standard 4 because the shoreplant in Adak is the only processor in the Aleutian Islands that has processed Pacific cod and it therefore will receive the entire Aleutian Islands CV Harvest Set-Aside. Section 2.6.8 of the Analysis describes the two shoreplants currently in the Aleutian Islands—one in Adak and one in Atka. Although Atka has not processed Pacific cod and Adak has processed Pacific cod, this final rule does not provide a specific allocation of fishing privileges to either of these Aleutian Islands shoreplants. Amendment 113 does not provide Adak or Atka with fishing privileges in the Aleutian Islands Pacific cod fishery.

    The commenter also asserts that Amendment 113 and this final rule establish a processor share or exclusive processing privilege for Adak which is not authorized by the Magnuson-Stevens Act. This aspect of Comment 14 is also expressed in Comment 18. NMFS refers the reader to its detailed response to this comment in its response to Comment 18.

    Finally, the commenter refers to a letter dated January 28, 2009, from Robert D. Mecum, Acting Administrator, Alaska Region, NMFS, to Eric Olsen, then Chairman of the Council. According to the commenter, NMFS noted in this letter that the proposed set-aside could violate National Standard 4's requirement that allocations be fair and equitable and not create excessive shares. While NMFS acknowledges the letter, NMFS disagrees that the letter provides support for the claim that Amendment 113 and this final rule are inconsistent with National Standard 4.

    The action under consideration by the Council when NMFS sent the letter was not the set-aside action in Amendment 113 but a different action that would have established processing sideboards on processing vessels eligible under the AFA, BSAI crab rationalization program, and BSAI Amendment 80 program that received deliveries of Pacific cod harvested in the Eastern and Central Aleutian Islands (Areas 541 and 542). Under that action, CPs, floating processors, and motherships in these programs would have been limited in the amount of CV deliveries they could receive of Pacific cod harvested in Area 541 and/or 542 on an annual basis, or prohibited from taking deliveries prior to a specific date. The 2009 letter from NMFS encourages the Council to pay particular attention to National Standard 4's prohibition against allocation of excessive shares of fishing privileges and requirement that allocation actions be reasonably calculated to promote conservation. NMFS advised the Council that if it chose to proceed with the action under consideration at that time, it would need to provide a rationale that clearly demonstrated that the action was consistent with these aspects of National Standard 4. However, NMFS also stated, “Based on our discussions with NOAA GC, these issues do not appear to preclude the proposed action . . . .”

    In developing Amendment 113, the Council considered the advice provided by NMFS and modified the action to address inordinate control concerns by conditioning the set-aside on the achievement of certain performance measures which, if not satisfied, will lift the set-aside; by capping the maximum amount of the set-aside at a level that will provide the protections and stability the Council wanted to create for Aleutian Islands fishing communities, particularly in times of relatively low Aleutian Islands Pacific cod TAC, and that will allow for the continued participation of the offshore sector; and by allowing any vessel and any Aleutian Islands shoreplant to participate in the set-aside. The Council also designed Amendment 113 and this final rule to promote conservation and to prohibit acquisition of an excessive share of fishing privileges as explained earlier in this response.

    Comment 15: This action was reasonably calculated to promote conservation as required under National Standard 4 because it will reduce the amount of halibut prohibited species catch (PSC).

    Response 15: NMFS acknowledges the comment. NMFS believes that the commenter is referring to data that indicate that halibut PSC rates are much lower in the Aleutian Islands Pacific cod fishery than in the Bering Sea Pacific cod fishery (Section 2.7.2.2 of the Analysis). The commenter seems to suggest that if more fishing occurs in the Aleutian Islands relative to the Bering Sea because of this final rule, overall halibut PSC usage in the BSAI could potentially decrease. NMFS cannot predict how halibut PSC rates or overall use may change in response to this final rule, if at all. NMFS notes that this final rule will not affect the total maximum permissible amount of halibut PSC established for BSAI groundfish fisheries. As stated in the response to Comment 14, Amendment 113 and this final rule continue to promote and do not undermine the conservation measures established under existing regulations.

    Comment 16: The proposed rule will result in TAC being “stranded” in the Aleutian Islands Pacific cod fishery and it therefore violates National Standard 1 of the Magnuson-Stevens Act because it does not promote achievement of optimal yield. The proposed rule suggests that performance measures, such as the 1,000-mt minimum landings requirement, would prevent the stranding of Aleutian Islands Pacific cod because other sectors would have access to the fishery once the harvest restrictions and delivery requirements are lifted. However, the fleet cannot adjust in the time frames proposed. The midseason announcements intended to prevent stranding a portion of the Aleutian Islands Pacific cod TAC cannot possibly be effective, given that vessels will be fishing at that time and will likely need to interrupt that fishing to prepare gear for the Aleutian Islands Pacific cod fishery. These vessels would then need to transit to the area from the Bering Sea or Gulf of Alaska. Additionally, delays between when catch is landed and reported to NMFS, and when NMFS can reopen the fishery may further reduce the amount of time available to harvest the remaining TAC while the desirable aggregations of Pacific cod are still available.

    Response 16: The Council and NMFS determined that Amendment 113 and this final rule are consistent with National Standard 1. Optimum yield, as defined in the Magnuson-Stevens Act, is that amount of fish which “will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems” and the amount of fish which “is prescribed as such on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor” (16 U.S.C. 1802(33)(A) and (B)). Amendment 113 and this final rule do not change the optimum yield of the BSAI groundfish fisheries, which is specified in regulations as a range from 1.4 million to 2.0 million mt (§ 679.20(a)(1)(i)(A)). NMFS notes that optimum yield refers to a broad range of harvest spanning all species within the BSAI groundfish fisheries, not the TAC for a given species and area in a year. Even if the entire Aleutian Islands Pacific cod TAC were not harvested in a year, optimum yield could still be achieved, consistent with National Standard 1.

    The Aleutian Islands Pacific cod OFL, ABC, and TAC, and the process by which NMFS manages the fishery to stay within those limits, will not change as a result of this action. Specifically, this final rule includes several provisions to prevent stranded Pacific cod TAC in the Aleutian Islands and should ensure full harvest of the Aleutian Islands Pacific cod DFA, thus promoting the achievement of optimum yield in the Bering Sea and Aleutian Islands groundfish fisheries. As noted in the response to Comment 14, this final rule does not limit or constrain the proportion of the TAC allocated to CDQ or non-CDQ fishery participants.

    NMFS expects that vessel operators will adapt their fishing plans in a variety of ways to accommodate the Aleutian Islands CV Harvest Set-Aside, and expects that sufficient catch monitoring already exists, and notification requirements will be put into effect with this final rule, for vessel operators to predict when and if they should gear up and transit to the Aleutian Islands to fish for Pacific cod. For example, if NMFS has not received notification prior to November 1 of an Aleutian Islands city's intent to process Pacific cod, the A-season Pacific cod fishery will be available to all participants and those participants will have more than two months to prepare. In years with sufficient TAC for an Unrestricted Fishery to commence, vessels may already be fishing in the Aleutian Islands when the Aleutian Islands CV Harvest Set-Aside is lifted. In years when the Aleutian Islands TAC is low and an Unrestricted Fishery will not be available, vessel operators may choose to only fish in the Bering Sea. NMFS posts weekly landing reports by fishery to help the agency and fishery participants project when fisheries will open and close.

    NMFS disagrees that delays in catch accounting will further shorten the time available for the fleet to harvest the remaining Aleutian Islands TAC if the 1,000-mt performance standard is not met on or before February 28 or if the full Aleutian Islands CV Harvest Set-Aside is harvested allowing the fishery to be opened to all participants. NMFS tracks harvests and projects when catch limits will be reached so that the announcement can be prepared and the fishery can be opened or closed, as applicable, on the appropriate date. NMFS expects to open the Aleutian Islands Pacific cod fishery as soon as necessary. For example, if Aleutian Islands shoreplants have not met the 1,000-mt performance measure by February 28, NMFS would have anticipated that in advance and be prepared to open the fishery to all eligible participants promptly on March 1 (or February 29, if a leap year). Likewise, NMFS would be prepared to lift the Bering Sea Trawl CV A-Season Sector Limitation if the full set-aside were harvested prior to March 15. The Council considered NMFS' Catch Accounting and Inseason Management protocols when selecting dates for the set-aside.

    Comment 17: This final rule promotes conservation and should be viewed as a “trailing amendment” to the actions to establish separate Aleutian Islands and Bering Sea Pacific cod OFLs, ABCs, and TACs, and to implement new Steller sea lion protection measures. Both of these actions were implemented for conservation purposes and the Council chose to wait to enact community protections until they could determine what the effects of those actions on Aleutian Islands communities would be.

    Response 17: NMFS acknowledges the comment. As stated in the response to Comment 14, Amendment 113 and this final rule continue to promote and do not undermine the conservation measures established under existing regulations, such as the BSAI TAC split and Steller sea lion protection measures.

    Comment 18: This action is a violation of National Standard 8. National Standard 8 does not constitute a basis for allocating resources to a specific fishing community nor for providing preferential treatment based on residence in a fishing community. National Standard 8 applies to allocation of fishing, not processing, privileges.

    Response 18: Because of their remote location and limited economic alternatives, Aleutian Islands communities rely on harvesting and processing of the nearby fishery resources to support and sustain their communities. National Standard 8 requires that conservation and management measures take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of National Standard 2 in order to provide for the sustained participation of such communities, and to the extent practicable, minimize adverse economic impacts on such communities (16 U.S.C. 1851(a)(8)). National Standard 8 guidelines recommend that “. . . where two alternatives achieve similar conservation goals, the alternative that provides the greater potential for sustained participation of such communities and minimizes the adverse economic impacts on such communities would be the preferred alternative” (50 CFR 600.345(b)(1)). The guidelines further state that “fishing community” means a community that is substantially dependent on or substantially engaged in the harvest or processing of fishery resources to meet social and economic needs, and includes fishing vessel owners, operators, and crew, and fish processors that are based in such communities. A fishing community is a social or economic group whose members reside in a specific location and share a common dependency on commercial, recreational, or subsistence fishing or on directly related fisheries-dependent services and industries (for example, boatyards, ice suppliers, tackle shops) (50 CFR 600.345(b)(3)). The Council and NMFS considered the importance of fishery resources to Aleutian Islands fishing communities such as Adak and Atka and determined that community protections were necessary to provide for the sustained participation of these communities in the Aleutian Islands Pacific cod fishery. The Council and NMFS determined that Amendment 113 and this final rule are therefore consistent with National Standard 8.

    As discussed in the preamble to the proposed rule and in the Analysis, this final rule does not allocate processing privileges. This final rule allocates fishing privileges for Aleutian Islands Pacific cod through the establishment of a set-aside for a portion of the Aleutian Islands Pacific cod TAC available for harvest by vessels directed fishing for Aleutian Islands Pacific cod and that deliver their catch to Aleutian Islands shoreplants for a portion of the year and only if specific notification and performance requirements are met. This final rule does not change any percentage allocations of Pacific cod established under Amendment 85 to the FMP and existing regulations for the CDQ or non-CDQ fishery sectors as described in § 679.20(a)(7). This final rule does not allocate exclusive fishing privileges to a specific harvester, community, processor, or to residents of a specific community.

    Under this final rule, any properly permitted and licensed vessel, operated by any resident of any community or state, can harvest the portion of the Aleutian Islands Pacific cod TAC in the Aleutian Islands CV Harvest Set-Aside. Under this final rule, catch harvested from the set-aside can be delivered to any Aleutian Islands shoreplant in any Aleutian Islands community, and no exclusive opportunity to receive any portion of the set-aside is provided to an Aleutian Islands shoreplant or to a person based on residency in an Aleutian Islands community. As explained in the response to Comments 14 and 19, Amendment 113 and this final rule do not create a processing privilege.

    As described in the Analysis, the preamble to the proposed rule, and in public testimony provided at Council meetings, Aleutian Islands Pacific cod is an important component of the socioeconomic health of the community of Adak, and may become a more critical piece of the processing in Atka. In Adak, the Aleutian Islands Pacific cod fishery provides income to harvesters, processors, and other businesses providing support services. Section 2.6.8 of the Analysis suggests that without the set-aside, it is very likely that the processing plant in Adak will not be capable of sustained participation in the future (see also Comment 1). Although Atka has not historically participated in the Aleutian Islands Pacific cod fishery, the Aleutian Pribilof Islands Community Development Association (APICDA) has been working with investors to make substantial infrastructure improvements to their harbor to enhance the local fishing fleet and to the shoreplant so it may operate year-round. Comments submitted by APICDA indicate that harvesting and processing Aleutian Islands Pacific cod are critical to the success of these developments in this remote community. Additional information about Atka is provided in Section 2.6.8 of the Analysis.

    The Aleutian Islands Pacific cod fishery is a pulse fishery that operates for several weeks in late February and March. This pulse is the most profitable time of the season for Pacific cod in the region. These few weeks of the Federal-waters Pacific cod fishery are a critical part of these remote operations.

    This action is consistent with the management objectives in the FMP and the Programmatic Supplemental Environmental Impact Statement (available at https://alaskafisheries.noaa.gov/node/33552). Specifically, NMFS refers the reader to objectives related to potential societal benefits, such as providing socially and economically viable fisheries for the well-being of fishing communities and balancing many competing uses of marine resources and different social and economic goals for sustainable fishery management, including protection of the long-term health of the resource and the optimization of yield.

    Comment 19: This action should have been analyzed as a limited access privilege program. The eligibility requirements to grant limited access privileges to communities under the Magnuson-Stevens Act were not followed.

    Response 19: Amendment 113 and this final rule do not create a limited access privilege as defined in the Magnuson-Stevens Act (16 U.S.C. 1802(26)). The Magnuson-Stevens Act defines “limited access privilege” as a Federal permit, issued as part of a limited access system under section 303A to harvest a quantity of fish expressed by a unit or units representing a portion of the total allowable catch of the fishery that may be received or held for exclusive use by a person, and includes an individual fishing quota, but does not include community development quotas as described in section 305(i). As stated in responses to previous comments, this final rule does not provide any person a portion of the Aleutian Islands Pacific cod TAC that may be received or held for exclusive use. Amendment 113 and this final rule do not assign the Aleutian Islands CV Harvest Set-Aside, in whole or in part, to any one person, Aleutian Islands shoreplant, or community for harvesting or delivery. All harvesters have access to the Aleutian Islands CV Harvest Set-Aside if they are willing to deliver their catch to an Aleutian Islands shoreplant. Any Aleutian Islands shoreplant can accept deliveries from the Aleutian Islands CV Harvest Set-Aside. While the practical effect of Amendment 113 and this final rule may be that harvesters in the Aleutian Islands CV Harvest Set-Aside may have only one Aleutian Islands shoreplant to deliver their catch (Adak), one or more Aleutian Islands shoreplants could become operational at any time and accept deliveries from harvesters in the Aleutian Islands CV Harvest Set-Aside, reducing the amount that Adak could receive. Therefore, Adak is not provided an exclusive processing privilege under Amendment 113 or this final rule (see also response to Comments 14 and 18). Amendment 113 and this final rule set-aside a portion of the Aleutian Islands DFA during the A-season for vessels that conduct directed fishing for Aleutian Islands Pacific cod and deliver their catch to Aleutian Islands shoreplants for processing. Because Amendment 113 and this final rule do not establish a limited access privilege, Amendment 113 and this final rule do not create a limited access privilege program and the eligibility requirements for limited access privilege programs in the Magnuson-Stevens Act at section 303A (16 U.S.C. 1853a) do not apply to Amendment 113 and this final rule.

    Comment 20: National Standard 5 states that “Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.” This action is inconsistent with National Standard 5 because it fosters inefficiency and has no purpose other than economic allocation. The Draft Analysis acknowledged that the set-aside “could potentially lead to a lower price for catch and reduce efficient utilization,” and it is uncertain that this action would benefit Aleutian Islands communities. Adak serves as a port of embarkation and provides goods and services to the fleet. By reducing the number of port visits by CPs during a critical part of the year, this action may actually result in lost economic activity for Adak.

    Response 20: Amendment 113 and this final rule set aside a portion of the Aleutian Islands Pacific cod fishery for harvest by certain vessels. The primary objective of this action is to provide Aleutian Islands communities with access to and sustained participation in the Aleutian Islands Pacific cod fishery, and to minimize the adverse impacts of a range of management actions on those communities. This objective is consistent with the goals of the FMP and with National Standard 8 (see response to Comment 18 for additional explanation of consistency with National Standard 8).

    The Council and NMFS have determined that Amendment 113 and this final rule are also consistent with National Standard 5. According to the National Standard 5 guidelines, the term “utilization” encompasses harvesting, processing, marketing, and non-consumptive uses of the resource, since management decisions affect all sectors of the industry (§ 600.330(b)(1)). National Standard 5 does not refer exclusively to harvesting. While rationalization programs increased efficiency of harvesting the resource, they did so in part at the expense of Aleutian Islands communities. The Council and NMFS can, and must, implement conservation and management measures that are consistent with all of the National Standards.

    Section 2.6.2.2 of the Analysis examines some of the potential gains and losses in efficiency that may result from Amendment 113. The Analysis acknowledges that there may be some losses to communities resulting from fewer port visits by CPs. On the other hand, efficiencies may be gained by having a local fishing fleet that can fish closer to shore. Public comments submitted in support for Amendment 113 and this final rule suggest that the communities believe the benefits of this action to Aleutian Islands outweigh any potential losses (see Comment 7). While the efficiency of utilizing shoreplant processing in remote parts of the Aleutian Islands can be debated, the social and economic benefits the shoreplants provide to the communities in which they are located are tangible.

    In this particular case, the Council and NMFS have sought to balance the objectives of efficiency under National Standard 5 with the social and economic considerations of Aleutian Island communities under National Standard 8. This type of balance is contemplated in the National Standard 5 guidelines which note, “Unless the use of inefficient techniques or the creation of redundant fishing capacity contributes to the attainment of other social or biological objectives, an FMP may not contain management measures that impede the use of cost-effective techniques of harvesting, processing, or marketing, and should avoid creating strong incentives for excessive investment in private sector fishing capital and labor” (§ 600.330(b)(2)(ii)). In this case, the Council and NMFS considered a range of social factors in addition to efficiency, including providing socially and economically viable fisheries for the well-being of Aleutian Islands fishing communities. Consistent with the National Standard 5 guidelines, the Council and NMFS have prepared an analysis and rulemaking that justify these measures “in light of the biological, ecological, and social objectives of the FMP, as well as the economic objectives” (§ 600.330(e)).

    Comments on Economic Effects

    Comment 21: Reduced competition means lower prices for harvesters. By creating an exclusive processing privilege for Aleutian Islands shoreplants, this action has the potential to cause uncompetitive acts. Creating and enforcing a single market for fish is devastating for harvesters who are not protected by any sort of price arbitration structure. Having only a single plant limits competition for landings and the seller has limited negotiating leverage. This drives down the prices paid to fishermen. Additionally, having only a single processor means that some CVs could be excluded if the lone processor does not want to do business with them.

    Response 21: As explained in the response to Comments 14, 18 and 19, Amendment 113 and this final rule do not create an exclusive processing privilege for Aleutian Islands shoreplants. As acknowledged in Section 2.7.2.3 of the Analysis, under Amendment 113, CVs may have less ability to use processor competition for Aleutian Islands Pacific cod landings to leverage higher prices. However, the Analysis also acknowledges several ways that CVs may retain leverage in negotiating fair prices from Aleutian Islands shoreplants. To remain solvent, Aleutian Islands shoreplants will need to offer harvesters competitive prices or CVs could withhold delivery of catch to that shoreplant. CVs could choose not to participate in the Aleutian Islands CV Harvest Set-Aside, wait until the set-aside has ended, or shift fishing operations to the Bering Sea. If Aleutian Islands shoreplants are not competitive, they likely will not be able to operate, and NMFS would not expect to receive notification from the City of Adak or the City of Atka by the annual deadline. If less than 1,000 mt of Aleutians Island Pacific cod have been delivered to Aleutian Islands shoreplants on or before February 28, the set-aside will be lifted and the fishery will be opened to all eligible participants for delivery to any eligible processor. This performance measure serves as an additional incentive for Aleutian Islands shoreplants to offer competitive prices to all interested harvesters so that harvesters do not wait until after February 28 for the opportunity to deliver to offshore processors. In addition, this final rule does not provide for only one Aleutian Islands shoreplant or prevent multiple Aleutian Islands shoreplants from operating at the same time. Even when the set-aside is in place, this final rule does not preclude CPs or stationary floating processors from receiving catch from CVs harvesting from the Aleutian Islands Unrestricted Fishery in years when the Aleutian Islands TAC is large enough for the Unrestricted Fishery to occur, or from operating after March 15. CPs and stationary floating processors present in the Aleutian Islands for the Unrestricted Fishery could be ready to accept deliveries of Pacific cod if the set-aside were lifted early.

    Comment 22: The Analysis does not consider the effects of the BSAI TAC split, and assumes the loss of Aleutian Islands Pacific cod can be made up in the Bering Sea, despite the fact that Bering Sea and Aleutian Islands cod are different fisheries with unique products.

    Response 22: Sections 2.2 and 2.6 of the Analysis describe some of the effects the BSAI TAC split has had on the amount of Pacific cod available for harvest in the Aleutian Islands. Likewise, the “Need for This Proposed Rule” section of the proposed rule identifies the BSAI TAC split and resulting relatively low TAC in the Aleutian Islands as just one of several factors prompting the need for the community protections in this rule. NMFS acknowledges that this action may result in losses to some participants in the Aleutian Islands Pacific cod fishery. Section 2.7.2 of the Analysis and the response to Comment 23 discuss ways that shifting effort to the Bering Sea may mitigate the effects of Amendment 113 on participants.

    Comment 23: The Analysis supposes that the loss of Pacific cod harvest by the hook-and-line CP sector in the Aleutian Islands can be offset by shifting effort to the eastern Bering Sea; however, Aleutian Islands Pacific cod are typically larger and fetch a higher price in international markets than Bering Sea Pacific cod. Bering Sea Pacific cod cannot be substituted for Aleutian Islands Pacific cod.

    Response 23: The Council and NMFS recognize that Pacific cod fisheries and products differ between the Bering Sea and the Aleutian Islands. The Analysis does not suggest that the same product harvested and processed in the Aleutian Islands can be substituted by one harvested and processed in the Bering Sea and notes that harvesters generally fetch higher prices for Aleutian Islands Pacific cod because of their typically larger size (Section 2.7.2.2 of the Analysis). The Analysis further notes that moving to the Bering Sea to fish for Pacific cod may not be viable for all vessels because they may participate in other Aleutian Islands fisheries, or are subject to harvest sideboards in other fisheries as a result of their eligibility in rationalization programs. Additionally, vessels that formerly fished for Aleutian Islands Pacific cod that move to the Bering Sea to fish for Pacific cod will compete with vessels that have historically fished in the Bering Sea. The Council recognized these limitations on recuperating losses that may be incurred by some participants as a result of Amendment 113, but determined that CPs are better able to adapt to changing conditions in the Aleutian Islands Pacific cod fishery given their ability to move to different locations to fish and process their catch, than Aleutian Islands shoreplants and the vessels that deliver to them, which have less flexibility and adaptability.

    The Council and NMFS recognized that CP sectors will not be able to participate in the Aleutian Islands Pacific cod fishery unless the set-aside is not in effect for that year, some of the set-aside remains available for harvest after the set-aside ends, or there is sufficient Aleutian Islands DFA for an Unrestricted Fishery during the set-aside period. The Council determined that in years of low TAC, when an Unrestricted Fishery will not occur, it was important to protect Aleutian Islands fishing communities that cannot easily participate in other fisheries or other areas to make up for lost revenue.

    The Council and NMFS recognized the participation of hook-and-line CPs in the Aleutians Islands Pacific cod fishery by capping the amount of Aleutian Islands Pacific cod that goes to the Aleutian Islands CV Harvest Set-Aside and by providing mechanisms to lift the set-aside if no Aleutian Islands city will be processing in the upcoming year or if deliveries do not meet established thresholds by certain dates. This final rule limits the amount of the Aleutian Islands CV Harvest Set-Aside to 5,000 mt, which will allow the participation of all sectors in the Unrestricted Fishery except during years when the Aleutian Islands Pacific cod TAC is extremely low. The Council wanted to provide the Unrestricted Fishery so that vessels not participating in the Aleutian Islands CV Harvest Set-Aside can participate to some extent in the Aleutian Islands Pacific cod fishery and get some of the benefits from it. Additionally, because the Aleutian Islands CV Harvest Set-Aside is for a specific amount, rather than a percentage of TAC, the set-aside will not increase even if Aleutian Islands TAC increases, which will provide for an even greater amount in the Unrestricted Fishery.

    Comment 24: The proposed Aleutian Islands CV Harvest Set-Aside period is too long and would prevent others from accessing the fishery altogether. If the Adak plant is expected to be capable of processing more than 400 mt of Pacific cod per day, and the proposed Atka plant has a planned capacity of 180 mt per day, Aleutian Islands shoreplants could process the entire proposed set-aside in just 8 to 11 days.

    Response 24: If both of the existing Aleutian Islands shoreplants are operational, they may have the combined capacity to process 500 mt to 600 mt per day. However, if the Pacific cod have not yet arrived and aggregated on the fishing grounds, there would be no deliveries for them to process. To be effective, the Aleutian Islands CV Harvest Set-Aside and Bering Sea Trawl CV A-Season Sector Limitation need to be in place long enough for the Pacific cod to aggregate on the fishing grounds, and for the fish to be harvested and delivered to Aleutian Islands shoreplants for processing. An earlier end date might mean that the peak fishery occurs after the Aleutian Islands CV Harvest Set-Aside and Bering Sea Trawl CV A-Season Sector Limitation have been lifted. Conversely, if the Aleutian Islands CV Harvest Set-Aside and Bering Sea Trawl CV A-Season Sector Limitation did not go into place until later during the A-season, the entire trawl CV allocation could be taken in the Bering Sea before the fishery begins in the Aleutian Islands.

    As discussed in the preamble of the proposed rule, the Council determined and NMFS agrees that March 15 is the preferred date for lifting the Aleutian Islands CV Harvest Set-Aside for several reasons. March 15 represents the average date of the peak of the Aleutian Islands Pacific cod fishery for CVs. During the period analyzed (2003 through 2015), a significant portion of Aleutian Islands Pacific cod was not delivered shoreside until mid-March (see Table 2-37 of the Analysis). Establishing a date much earlier than March 15 to relieve the set-aside would not meet the Council's goals to provide access to and to sustain participation in the Aleutian Islands Pacific cod fishery by Aleutian Islands communities because the protections afforded by the set-aside would be lifted before the Pacific cod aggregated on the fishing grounds.

    The Council and NMFS considered earlier dates by which to lift these restrictions, but given historical harvesting and delivery patterns for Aleutian Islands Pacific cod, the longer the Aleutian Islands CV Harvest Set-Aside remains in effect during the A-season each year, the greater the opportunity for complete harvest and delivery of the Aleutian Islands CV Harvest Set-Aside. The March 15 date provides greater social and economic stability for Aleutian Islands fishing communities than earlier dates. Limiting the duration of the Aleutian Islands CV Harvest Set-Aside to March 15 also would provide an opportunity for CPs to harvest Pacific cod, and for CVs to harvest and deliver Pacific cod to CPs or stationary floating processors, before the end of the A-season. The proposed March 15 date balances the opportunities for all participants. Additional information is provided in Section 2.7.2.4 of the Analysis.

    Comment 25: The proposed threshold of 5,000 mt for the Aleutian Islands CV Harvest Set-Aside exceeds the recent historical average of deliveries made to Aleutian Islands shoreplants. Excluding the years of no processing by Aleutian Islands shoreplants (2010, 2011, and 2015), the 2010 through 2015 average is 3,073 mt and the average proportion of the Federal Aleutian Islands Pacific cod fishery processed at the Adak and Atka shoreplants from 2003 through 2015 is 32 percent. Applying the historic average to the projected 2017 DFA of 8,965 mt would result in a 2017 set-aside of 2,869 mt. Therefore, a threshold of 3,000 mt would more accurately reflect the “historical place” of Aleutian Islands shoreplants in the federal Aleutian Islands Pacific cod fishery.

    Response 25: As discussed in the preamble to the proposed rule and in Section 2.7.1.2 of the Analysis, the Council examined harvest and landings data from 2003 through July 2015 and considered a range of options for the amount of the Aleutian Islands CV Harvest Set-Aside (and equivalent Bering Sea Trawl CV A-Season Sector Limitation). The average amount of non-CDQ Aleutian Islands Pacific cod processed by Aleutian Islands shoreplants during this period was 4,732 mt. The Council considered amounts for the Aleutian Islands CV Harvest Set-Aside ranging from 3,000 to 7,000 mt. The Council determined and NMFS agrees that a maximum of 5,000 mt is the appropriate amount because it represents a large percentage of the total amount of Aleutian Islands Pacific cod available to the non-CDQ fishery sectors in recent years, and is in the range necessary to provide benefits to Aleutian Islands fishing communities, including shoreplant operations, when considered in combination with the State guideline harvest level (State GHL) A-season harvest. Additionally, the Analysis shows that 5,000 mt is the approximate long-term average of the annual amount of Pacific cod processed at Aleutian Islands shoreplants between 2003 and 2015, when Aleutian Islands shoreplants were operational.

    The Council considered an option that would have reserved a percentage, rather than a fixed amount, of the Aleutian Islands TAC for the Aleutian Islands CV Harvest Set-Aside (see Section 2.7.2.5 of the Analysis). The Council chose a fixed amount (5,000 mt) so that more of the DFA would be available to Aleutian Islands fishing communities in years of low TAC, and so that more of the DFA would be available to all participants in the Unrestricted Fishery in years when the Aleutian Islands TAC is high, providing more opportunities for other participants. Further explanation for the Council's choice of years to examine in the Analysis is given in the response to Comment 27.

    Comment 26: The Aleutian Islands Pacific cod fishery is important for all hook-and-line CPs. While Amendment 113 will have negative impacts on all CPs with historical participation in the Aleutian Islands Pacific cod fishery, the negative effects are more profound on specific hook-and-line CP companies with a higher dependence on the Aleutian Islands Pacific cod fishery.

    Response 26: The Council and NMFS examined participation in the Aleutian Islands Pacific cod fishery by all sectors over a range of years that included years before major changes in the fishery occurred and years since those changes occurred. The Council recognized that to offer protections to Aleutian Islands communities, there could be some negative effects on other participants in the Aleutian Islands Pacific cod fishery, including the hook-and-line CP sector. In years when the TAC is low and the set-aside is in effect, it is likely that CPs will not have access to the Aleutian Islands Pacific cod fishery at all or at levels to which they are accustomed. To minimize those negative effects, the Council included several provisions that lift the restrictions if minimum performance measures are not met and prevent the stranding of Aleutian Islands Pacific cod. For 2017, the hook-and-line CP sector will have access to 3,965 mt through the Aleutian Islands Unrestricted Fishery. The annual average targeted Aleutian Islands Pacific cod catch by the hook-and-line CP sector between 2003 and 2015 was 2,399 mt (Table 2-34 of the Analysis). Excluding years that Aleutian Islands shoreplants did not operate, the annual average targeted Pacific cod catch by the hook-and-line CP sector was 2,311 mt (Table 2-34 of the Analysis). Even under current management, there is no guarantee that any sector will have access to the Aleutian Islands Pacific cod fishery because of the ability of one sector to harvest Pacific cod up to the Aleutian Islands TAC before other sectors arrive.

    NMFS and the Council acknowledge that the hook-and-line CP sector may have a higher dependence on the Aleutian Islands Pacific cod fishery than some other CP sectors; however, like other offshore sectors, the hook-and-line CP sector has the ability to react to changes in the fishery. The hook-and-line CP sector has formed a voluntary cooperative, which provides many of the benefits and flexibility of a rationalized fishery. In contrast, shoreside processors cannot move their operations in response to changing conditions or a low Aleutian Islands Pacific cod TAC. As discussed in the response to Comment 14, each sector continues to receive a percentage of the combined BSAI Pacific cod allocation as established in 2008 under Amendment 85, and can fish their allocations in either the Bering Sea or Aleutian Islands (and under this action shift effort to the Bering Sea or access the Aleutian Islands after a specified date). This action does not change the allocation to the hook-and-line CP sector.

    This final rule may provide a benefit to the hook-and-line CP sector in years when the Aleutian Islands DFA is large enough for the Aleutian Islands Unrestricted Fishery to occur. The A-season for hook-and-line CPs and CVs opens on January 1, whereas the A-season for trawl CPs and CVs does not open until January 20. The hook-and-line CPs and CVs will have earlier access to the Aleutian Islands Unrestricted Fishery between January 1 and January 20.

    Comment 27: The historical participation of the hook-and-line CP sector in the Aleutian Islands Pacific cod fishery is significantly larger and longer than as stated in the proposed rule. The hook-and-line CP sector has historically harvested more than 95 percent of the non-trawl harvest of Pacific cod in the Aleutian Islands. The hook-and-line CP sector's proportion of the Aleutian Islands Pacific cod harvest was much higher before 2002, when Steller sea lion protection measures were first implemented.

    Response 27: NMFS acknowledges that the hook-and-line CP sector has consistently participated in the Aleutian Islands Pacific cod fishery annually, harvesting 14% of the Aleutian Islands Pacific cod on an average annual basis during 2003 through 2015 (Table 2-13 of the Analysis), and that the hook-and-line CP sector participated in the fishery prior to 2003. NMFS also acknowledges that the hook-and-line CP sector harvests a large percentage of the non-trawl harvest of Aleutian Islands Pacific cod, but also notes that the overall non-trawl harvest is a small proportion of the Aleutian Islands TAC. The Council chose to use 2003 as a starting point for the Analysis for this action for several reasons. First, data from years prior to 2003 is not compatible with data from 2003 to the present. NMFS implemented its Catch Accounting System in 2003, which significantly changed the methodologies used to determine catch estimates (Section 2.5 of the Analysis). Second, data before 2003 represent harvests made prior to the implementation of Steller sea lion protection measures, which substantively changed the management of, and the participation patterns in, the Aleutian Islands Pacific cod fishery. The Council determined and NMFS agrees that catch data prior to 2003 does not reflect how the fishery has been managed and prosecuted during the last 13 years (2003 through 2015) considered by NMFS and Council in developing Amendment 113 and this final rule. Third, the Council determined and NMFS agrees that it was important to consider data from the largest set of years both before and after the implementation of Steller Sea Lion measures, rationalization programs, and the BSAI TAC split to understand the effects of those actions on the Aleutian Islands Pacific cod fishery.

    Comment 28: The proposed action will further concentrate the Aleutian Islands Pacific cod harvest spatially and temporally in the Aleutian Islands with more harvest by the trawl sector. In the proposed rule for the 2014 Steller sea lion protection measures (available at https://alaskafisheries.noaa.gov/sites/default/files/79fr37486.pdf), NMFS stated that, “Pacific cod hook-and-line and pot gear harvests occur in much smaller quantities and at slower rates for these gears than trawl gear. This makes it less likely that hook-and-line and pot gear harvests would result in localized depletion of Steller sea lion prey resources.” The proposed action, combined with the BSAI TAC split, GHL fishery, and consequences of the Steller sea lion protection measures will further limit the hook-and-line CP sector's participation and increase trawl harvests of Aleutian Islands Pacific cod.

    Response 28: NMFS acknowledges that the Analysis predicts some spatial concentration of harvest because vessels participating in the set-aside are expected to be trawl CVs that will likely fish closer to shore and nearer to Adak and Atka, the Aleutian Islands communities that are most likely to receive Pacific cod deliveries under the set-aside. The amount of Aleutian Islands Pacific cod harvest that might be caught closer to shore under a maximum set-aside amount of 5,000 mt that is roughly equivalent to the average annual amount of Pacific cod caught by CVs and delivered to Aleutian Islands shoreplants between 2003 and 2015, which reduces the potential for spatial concentration (see Section 3.4 of the Analysis). Fishing closer to shore may increase efficiency in the fishery (Section 2.7.2.2 of the Analysis) by reducing transit times, allowing vessels to make more frequent offloads, and not having to coordinate fishing operations with an offshore processor (Section 2.7.2.2 of the Analysis). Allowing other participants to target the Aleutian Islands Unrestricted Fishery when the DFA is greater than 5,000 mt, and the performance measures that remove the set-aside if there is insufficient shoreplant processing will also limit spatial concentration. Finally, the Council and NMFS will continue to use the current harvest specifications process for setting the Aleutian Islands Pacific cod TAC and manage harvest within these limits. Any potential changes in harvest location as a result of the set-aside are not expected to impact Aleutian Islands Pacific cod stock status (see Section 3.3.1 of the Analysis), or have an impact on Steller sea lions in a manner not previously considered in previous consultations (see Section 3.4 of the Analysis).

    NMFS disagrees that Amendment 113 and this final rule will cause additional temporal concentration of the fishery. In the years since the BSAI TAC split, the Aleutian Islands Pacific cod fishery has closed on March 16, 2014, February 27, 2015, and June 8, 2016, so as not to exceed the Aleutian Islands Pacific cod TAC. Setting aside a maximum of 5,000 mt of Aleutian Islands Pacific cod until March 21 may actually prolong the season for Aleutian Islands Pacific cod because CPs will not be able to harvest Pacific cod from the set-aside (unless they are delivering their catch to Aleutian Islands shoreplants for processing) or process any Aleutian Islands Pacific cod remaining from the set-aside until after the conclusion of the Aleutian Islands CV Harvest Set-Aside on March 15.

    As examined in the FONSI (Section 3.6 of the Analysis), Amendment 113 and this final rule will not adversely affect endangered or threatened species, marine mammals, or critical habitat of these species in any manner not considered in prior consultations on the BSAI groundfish fisheries. While this action may increase the harvest of Pacific cod nearshore in the Aleutian Islands subarea, the harvest of Pacific cod will continue to occur within the limits established in the annual groundfish harvest specifications by vessels the same as or similar to those currently fishing for Pacific cod in the BSAI.

    The vessels affected by this action will continue to be required to comply with all Steller sea lion protection measures including no-transit areas, closed areas, and the requirement to carry vessel monitoring systems (50 CFR part 679). Therefore, Amendment 113 and this rule will result in no substantial change to the actions analyzed in the biological opinion dated April 2, 2014, in which NMFS found that the groundfish fisheries in the BSAI are not likely to jeopardize the continued existence of the western distinct population segment of Steller sea lions or destroy or adversely modify its designated critical habitat (Section 3.4 of the Analysis).

    Comment 29: The hook-and-line CP sector's proportion of the Aleutian Islands Pacific cod harvest has been reduced since the establishment of the State Pacific cod GHL fishery, which is designed for harvest by CVs that deliver to Aleutian Islands communities. The State GHL fishery sets aside 28 percent of the Aleutian Islands Pacific cod TAC for fishing in State waters, which is essentially an allocation to shore-based processors. The State GHL fishery cannot be harvested by CPs and is not prosecutable by the Federal offshore sector. The State GHL fishery has resulted in considerable stranded Pacific cod. A large proportion of the State GHL fishery has remained unharvested and unavailable to the Federal fisheries because there is no rollover provision. Adak and Atka have unique access to processing the State GHL fishery, but have chosen not to participate in this fishery in recent years.

    Response 29: The State GHL fishery for Aleutian Islands Pacific cod is managed exclusively by the State within State waters. This final rule does not modify the State GHL fishery. Management of the State GHL fishery is outside of the scope of this final rule. Absent preemption under section 306(b) of the Magnuson-Stevens Act, NMFS does not have authority to determine catch amounts or the types of gear or vessels used in the Aleutian Islands Pacific cod State GHL fishery.

    The State established two GHL fisheries for Pacific cod in 2006; one in the Bering Sea and one in the Aleutian Islands. The Aleutian Islands State GHL fishery is currently set at a harvest limit equivalent to 27 percent of the Aleutian Islands Pacific cod ABC, not 28 percent of the Aleutian Islands Pacific cod TAC as stated by the commenter. The harvest limit may be increased (or decreased) in the following fishing year depending on how much of the State GHL fishery is harvested, and the harvest limit can increase to a maximum of 39 percent of the Aleutian Islands Pacific cod ABC if the harvest limit continues to be fully harvested each year. In addition, the Aleutian Islands State GHL fishery is capped at a maximum of 15 million pounds (6,804 mt). Therefore, if 27 percent of the Aleutian Islands Pacific cod ABC represents an amount that is greater than 15 million pounds in some future year, the State GHL fishery for that year would be 15 million pounds. The Aleutian Islands State GHL for 2016 is 4,752 mt.

    The amount of the Aleutian Islands State GHL fishery is deducted from the Aleutian Islands Pacific cod ABC to calculate the Aleutian Islands Pacific cod TAC. While the establishment of the State GHL fishery in 2006 reduced the Aleutian Islands TAC, it did not change the hook-and-line CP sector's allocation of 48.7 percent of the combined BSAI Pacific cod TAC. The reduction in the Aleutian Islands TAC resulting from the State GHL fishery is distributed proportionately across all sectors, and is not borne by the hook-and-line CP sector alone.

    NMFS assumes that the commenter is concluding that setting aside an additional amount of Aleutian Islands Pacific cod for Aleutian Islands communities is not warranted because these communities are not processing the full amount of what has already been allocated to them through the State GHL fishery. The commenter is correct that the full amount of the Aleutian Islands State GHL fishery has not been harvested every year; however, it is incorrect to state that Adak has chosen not to participate in the fishery in recent years. As noted in Table 2-31 in the Analysis, Aleutian Islands shoreplants have processed over 4,000 mt of Pacific cod from Federal and State GHL fisheries each year from 2012 through 2014. On average, Aleutian Islands shoreplants processed 2,046 mt of Pacific cod from the State GHL fishery annually since the inception of the Aleutian Islands Pacific cod State GHL fishery in 2006. The Council determined that the State GHL fishery alone was inadequate to sustain Aleutian Islands communities and shoreplants. Based on information received in public testimony, the Council determined that Aleutian Islands communities need about 9,000 mt of Pacific cod annually to support shoreplant operations. The Council selected a set-aside amount that in combination with the State GHL fishery would give Aleutian Islands communities access to at least 9,000 mt of Pacific cod annually. See also the response to Comment 25.

    Comment 30: The data presented in the Analysis do not reflect CP participation and dependence in the Aleutian Islands Pacific cod fishery. Processing by the offshore sector has also declined since rationalization programs were implemented. This rule will cause economic harm to CPs that are invested and have historically participated in the Aleutian Islands Pacific cod fishery. This rule also harms CVs that cannot make onshore landings and must deliver to CPs.

    Response 30: NMFS and the Council recognize, and the Analysis shows, that CPs have a history of participation in the Aleutian Islands Pacific cod fishery (Sections 2.6.6.1 through 2.6.6.3 of the Analysis), that the average annual amount of Aleutian Islands Pacific cod processed by the offshore sector has declined since 2011 (coinciding with the BSAI TAC split, Table 2-31 of the Analysis), and that this rule may cause some economic losses to CPs. The Council also recognized that the amount of Pacific cod harvested by trawl CPs, and the number of participating trawl CPs, have declined since 2003 (Table 2-10 in the Analysis). However, Aleutian Islands Pacific cod represents only a small portion of the total landings and revenue by the trawl CP fleet (Table 2-11 in the Analysis). The declining biomass and BSAI TAC split have resulted in reduced Pacific cod catches in the Aleutian Islands for all participants in both the onshore and offshore sectors. The Council and NMFS have chosen to set aside a portion of the harvest for vessels delivering their catch to Aleutian Islands shoreplants because these Aleutian Islands fishing communities do not have the flexibility available to offshore sector participants to redeploy into other BSAI or GOA groundfish fisheries, move their operations to the Bering Sea, or participate in rationalization programs that grant greater flexibility (Section 2.7.2.2 of the Analysis). The Council and NMFS have determined that the onshore sector had a greater dependence on the Aleutian Islands Pacific cod fishery than the offshore sector. Section 2.7.2.2 of the Analysis discusses some of the ways trawl CPs, trawl CVs, and hook-and-line CPs may respond to the restrictions imposed by this rule.

    The Council and NMFS recognize that some trawl CVs that have historically participated in the Aleutian Islands Pacific cod fishery lack the ability to make onshore deliveries. These vessels will likely experience a loss of economic activity from this action (Section 2.7.2.3 of the Analysis), particularly in years of low Aleutian Islands Pacific cod TAC. The options for mitigating losses incurred by this action on trawl CVs are the same as for other sectors that may be excluded from the fishery during the set-aside: they may fish in the Bering Sea, fish the Aleutian Islands Unrestricted Fishery, or wait for the set-aside to be lifted.

    Comment 31: The F/V Katie Ann, a trawl CP, is one of the earliest and most consistent participants in the Aleutian Islands Pacific cod fishery. The F/V Katie Ann is more dependent on the Aleutian Islands Pacific cod fishery than any other CP. Participation by the F/V Katie Ann predates the American Fisheries Act and the first entry of any shorebased processor in the Aleutian Islands. The intermittent entry into the fishery by the Adak shoreplant has harmed the ability of the F/V Katie Ann to harvest and process its long-term historical share of the Aleutian Islands Pacific cod fishery. Amendment 113, if implemented, threatens to destroy one of the only remaining viable fishing operations for the F/V Katie Ann.

    Response 31: The Council and NMFS recognized the long history of participation in the Aleutian Islands Pacific cod fishery by the F/V Katie Ann as Amendment 113 was being developed and considered. The Council considered an option that would have allowed CPs that had processed Pacific cod in the Aleutian Islands management area in at least 12 years between 2000 and 2014, such as the F/V Katie Ann, to be exempt from restrictions on processing for up to 2,000 mt of Pacific cod. Ten CPs that harvested and processed both targeted and incidental catch of Pacific cod during that period would have qualified for this exemption. The F/V Katie Ann is the only vessel that operated as a mothership processing targeted Pacific cod during this period.

    The Council did not select this option for an exemption for the F/V Katie Ann or other qualified CPs. The 2,000-mt exemption would have represented 40 percent of the 5,000-mt set-aside. The Council determined, and NMFS agrees, that this amount would have substantially reduced the amount available to vessels delivering to Aleutian Islands shoreplants and could have undermined the efficacy of Amendment 113. The primary objective of Amendment 113 and this final rule is to provide access to and promote sustained participation in the Aleutian Islands Pacific cod fishery by Aleutian Islands fishing communities in this remote area, especially at very low TAC levels. At TACs larger than 5,000 mt, CPs and motherships may participate in the Aleutian Islands Unrestricted Fishery. The Council considered historical participation of the offshore sector, including the F/V Katie Ann, but determined that the fishery cannot support historical levels of effort by all sectors (Section 2.7.2.5 of the Analysis). The Council selected a maximum level of 5,000 mt for the set-aside to provide continued access to the Aleutian Islands Pacific cod fishery by the offshore sector when the Aleutian Islands TAC is at a level that can accommodate both the needs of the inshore fishery and Aleutian Islands fishing communities, as well as offshore fishery participants. See also the response to Comment 33.

    Comment 32: In any fishery management plan that awards fishing privileges to one group and takes them away from another, there are certain to be winners and losers; however, the benefits to the winners must be balanced against the harm to the losers. Amendment 113 fails to achieve the required balance. There is little to no evidence that the harm that will be suffered by historical participants will be offset by any net benefits to either Adak or Atka. History has shown that it may be impossible to operate a viable shoreplant in Adak, and there is currently no one committed to future operations of the existing plant in Adak.

    Response 32: Amendment 113 and this final rule provide access to and sustained participation in the Aleutian Islands Pacific cod fishery by Aleutian Islands fishing communities, especially during periods when the Pacific cod TAC in the Aleutian Islands is relatively low. This is an appropriate action for the Council and NMFS to take, in recognition of the dependence on the Pacific cod fishery by Aleutian Islands fishing communities, the lack of protections for Aleutian Island harvesters and communities seeking to establish viable community-based fishing operations under the status quo, and the lack of opportunity for Aleutian Islands shoreplants and CVs to expand to other areas and fisheries.

    While it is accurate that the Aleutian Islands shoreplants in Adak or Atka did not process Pacific cod during the 2015 or 2016 fishing years, comments received during public testimony to the Council and the public comment period for the proposed rule state that investors and processors are planning to process Pacific cod in one or both communities if this final rule is implemented. The commenters believe that without the Aleutian Islands CV Harvest Set-Aside, it is doubtful that any operator will have a viable opportunity to process Pacific cod in Adak or Atka, and the inshore sector will continue to be preempted from the fishery. Public comments in favor of the action also state that there will be considerable social and economic benefits to Aleutian Islands communities as a result of this action that offset the expected costs to other participants.

    The Council included provisions to mitigate the costs of the set-aside on other participants by providing access to the fishery by other participants if the Aleutian Islands shoreplants do not submit a notification of their intent to process Pacific cod in the upcoming year or if those shoreplants do not meet the minimum processing requirement of 1,000 mt on or before February 28. Additionally, historical participants who cannot participate in the set-aside may participate in the Aleutian Islands Unrestricted Fishery, when available, or fish in the Aleutian Islands for Pacific cod when the set-aside is lifted (see also the response to Comment 16).

    Comment 33: This action would significantly impact the revenue and operations of Amendment 80 CPs that also have a history of dependence on the Aleutian Islands Pacific cod fishery. These CPs take deliveries from CVs that are unable to deliver to shore.

    Response 33: Amendment 113 and this rule do not prohibit Amendment 80 CPs and CVs delivering to Amendment 80 CPs from participating in the A-season Pacific cod fishery in the Aleutian Islands; those vessels may participate in the Aleutian Islands Unrestricted Fishery, when available, and may harvest any remaining BSAI non-CDQ Pacific cod up to the Aleutian Islands DFA after the set-aside is lifted. In addition, if NMFS does not receive timely notification from the City of Adak or the City of Atka, there will be no Aleutian Islands CV Harvest Set-Aside, and no additional regulatory harvesting or delivery limitations imposed on these vessels.

    When the Aleutian Islands DFA is greater than 5,000 mt, the difference between the DFA and the Aleutian Islands CV Harvest Set-Aside is available as the “Aleutian Islands Unrestricted Fishery” for directed fishing by all non-CDQ fishery sectors with sufficient A-season allocation and may be processed by any eligible processor, including Amendment 80 CPs and CVs making deliveries to them. The amount of the Aleutian Islands Unrestricted Fishery will be published in the BSAI Harvest Specifications. Given the current 2017 harvest specifications for Aleutian Islands Pacific cod, 3,965 mt of Pacific cod will be available for the Aleutian Islands Unrestricted Fishery.

    The Aleutian Islands CV Harvest Set-Aside will only be in effect for a portion of the A-season. The set-aside will be lifted if the entire amount of the set-aside has been delivered to Aleutian Islands shoreplants, or on March 15, whichever comes first. Additionally, if Aleutian Islands shoreplants do not meet certain performance requirements, the harvest and delivery restrictions will be lifted and the Aleutian Islands Pacific cod DFA can be harvested by any eligible vessel for delivery to any eligible processor. For example, if Aleutian Islands shoreplants have not processed at least 1,000 mt of Pacific cod by February 28, the set-aside will be lifted. Any amount of the set-aside remaining after that date, plus the remainder of the Aleutian Islands DFA, will be available for harvest by any eligible vessel for delivery to any eligible processor. Likewise, if the entire set-aside is harvested prior to March 15, the harvest and delivery restrictions will be lifted immediately. At the latest, the harvest set-aside will be lifted on March 15, and any amount of the set-aside remaining will be added to the remaining Aleutian Islands DFA for harvest by any eligible vessel for delivery to any eligible processor.

    Comment 34: Section 2.7.2 of the Analysis states that the set-aside “would preclude the future participation of other participants that may benefit or have historically benefitted from the harvesting and processing of Aleutian Islands Pacific cod unless Aleutian Islands shoreplants are unable to process the Aleutian Islands Pacific cod received from catcher vessels.” The justification for this is presented as the Council having made inshore-offshore allocations previously. This, however, is not an inshore-offshore allocation; this is pre-emption of the offshore sector to the benefit of the onshore sector.

    Response 34: The sentence that follows the material quoted by the commenter states, “The Council and NMFS have allocated fishery resources between inshore and offshore participants in the past, consistent with the purpose and need for the action, the National Standards and other provisions of the MSA [Magnuson-Stevens Act].” This sentence simply refers to past actions taken by the Council and NMFS that allocate fishery resources between inshore and offshore participants and does not represent the Council's and NMFS' justification for recommending and approving the Aleutian Islands Pacific cod harvest set-aside. The justification and rationale for establishing the set-aside is provided generally in the administrative record for Amendment 113, and specifically in Section 2.4.3 of the Analysis, in the preamble of the proposed rule, and in the preamble of this final rule.

    Although the Aleutian Islands Pacific cod set-aside is not identical to other inshore-offshore allocation actions the Council and NMFS have implemented, the set-aside does allocate Aleutian Islands Pacific cod among an inshore sector (those vessels that deliver their catch to Aleutian Islands shoreplants for processing) and an offshore sector (those vessels that process their catch at sea or that deliver their catch to offshore processors for processing), making it a type of inshore-offshore allocation. Another type of inshore-offshore allocation was the Gulf of Alaska (GOA) pollock and Pacific cod inshore-offshore allocations under Amendment 23 to the Fishery Management Plan for Groundfish of the GOA (GOA FMP). Under Amendment 23, 100 percent of the GOA pollock TAC was allocated to vessels delivering their catch of pollock to onshore processors. In the preamble of the final rule implementing Amendment 23, NMFS stated, “The allocation of 100 percent of the GOA pollock TAC to the inshore sector proposed by the Council and approved by the Secretary slightly exceeds the harvest rates of the inshore sector in recent years and results in a redistribution of the pollock resource from the offshore sector to the inshore sector. The Secretary determined that this redistribution was appropriate based on the social and other benefits that would be derived from implementation of the allocation” (57 FR 23321, June 3, 1992). In contrast to the inshore-offshore allocation of GOA pollock under Amendment 23 to the GOA FMP, the Aleutian Islands Pacific cod CV Harvest Set-aside will allow the offshore sector to participate in the Aleutian Islands Pacific cod fishery in years when the Aleutian Islands Pacific cod DFA provides for the Unrestricted Fishery, and in years when no Aleutian Islands shoreplant is processing Pacific cod or participating vessels fail to deliver 1,000 mt of Aleutian Islands Pacific cod to Aleutian Islands shoreplants by February 28.

    Comment 35: This action would create an exclusive processing privilege for Adak under the assumption that shore-based processors are entitled to an allocated share of processing privileges. The Council and NMFS have attempted to disguise an exclusive processing allocation to Adak by defining qualifying participants as “Aleutian Islands shoreplants” within a specified geographic region. However, the shoreplant in Atka has never processed Pacific cod and has no historical dependence on the fishery and it is unlikely that competing processing will be developed in the region in the foreseeable future. Therefore, this action is an exclusive allocation to Adak, whose shoreplant has a dubious track record for paying fisherman and has had numerous operational difficulties.

    The Magnuson-Stevens Act does not allow a fishery management council to allocate fishery privileges to shore-based processors. The express Federal prohibition of creating such a privilege was acknowledged by NOAA General Counsel (GC) in a letter from Lisa Lindeman to the Council Chair in 2009. Section 303A of the Magnuson-Stevens Act specifies that limited access privilege programs authorized under this act pertain to fish harvesting. Had Congress intended to create an individual processor quota, it could have done so, as it did for the crab fisheries in the BSAI. No such congressional grant of authority applies to shore-based processors operating in the Aleutian Islands Pacific cod fishery.

    Response 35: In a memorandum dated September 30, 2009, from Lisa Lindeman, Regional Counsel for the Alaska Region of NOAA General Counsel, to Eric Olsen (then Chairman) and Chris Oliver (Executive Director) of the Council, NOAA GC provided the Council with legal advice in response to four questions posed by the Council. Questions 1, 2, and 4 of the 2009 memorandum are relevant in responding to this comment. In response to the first question, NOAA GC advised that except for the authority provided at section 313(j) for the Crab Rationalization Program (16 U.S.C. 1862(j)), the Magnuson-Stevens Act does not provide the Council or NMFS with the authority to require fixed linkages between harvesters and shore-based processors. In fixed linkages, a harvester is required to deliver his or her catch to a specific shore-based processor. NOAA GC explained that requiring fixed linkages between harvesters and shore-based processors is similar to issuing processor quota, which is not authorized by the Magnuson-Stevens Act except for the Crab Rationalization Program. Therefore, with the exception of the Crab Rationalization Program, NMFS acknowledges that the Council and NMFS do not have authority under the Magnuson-Stevens Act to require fixed linkages between harvesters and processors or to establish exclusive processing privileges or processor quota.

    In response to the second question, NOAA GC advised that the Magnuson-Stevens Act does authorize allocation of harvesting privileges to shore-based processors if other requirements of the Magnuson-Stevens Act are met. Therefore, NMFS generally disagrees with the commenter's assertion that the Magnuson-Stevens Act does not allow a fishery management council to allocate fishery privileges to shore-based processors. Finally, in response to the fourth question, whether the Magnuson-Stevens Act authorizes the Council to establish an exclusive class of shore-based processors that would be the recipients of all, or a specific portion of all, landings from a fishery, NOAA GC advised that the answer is dependent on the purpose of the action and the record developed by the Council. NOAA GC stated, “The Magnuson-Stevens Act does not authorize placing a limit on the number of shore-based processing sites if the purpose is to allocate shore-based processing privileges. . . . However, if the Council developed an adequate record demonstrating that an action, which had the practical effect of limiting the number of sites to which deliveries could be made, was necessary for legitimate management or conservation objectives (e.g., . . . protection of fishing communities that depend on the fisheries) and not a disguised limited entry program, then there could be a legal basis for such an action.”

    NMFS disagrees that this action creates an exclusive processing privilege for Adak or a disguised processing allocation to Adak. No aspect of this action establishes exclusivity. This final rule does not provide a specific allocation of processing privileges to either Aleutian Islands shoreplant. Nothing in Amendment 113 or this final rule prevents the Atka shoreplant from processing Aleutian Islands Pacific cod and reducing the amount of Pacific cod that is delivered to Adak by vessels participating in the set-aside, prevents other Aleutian Islands shoreplants from processing Aleutian Islands Pacific cod in Adak or Atka, or prevents a shoreplant in any other onshore location west of 170° W. longitude from processing Aleutian Islands Pacific cod. The fact that the set-aside will be lifted if notification of intent to process is not provided, or if less than 1,000 mt of Aleutian Islands Pacific cod is processed by February 28, is directly contrary to exclusive privileges that permit the holder of the privilege exclusive access to the resource without diminishment by other participants or revocation without procedural due process. As explained throughout this final rule, the Council and NMFS have articulated legitimate management and conservation objectives for the Aleutian Islands CV Harvest Set-Aside to protect Aleutian Islands fishing communities that depend on access to and sustained participation in the fisheries for the socioeconomic benefits and stability provided by that access and participation. Therefore, Amendment 113 and this final rule do not create an exclusive processing privilege for Adak.

    OMB Revisions to PRA References in 15 CFR 902.1(b)

    Section 3507(c)(B)(i) of the Paperwork Reduction Act (PRA) requires that agencies inventory and display a current control number assigned by the Director of the Office of Management and Budget (OMB), for each agency's information collection. Section 902.1(b) identifies the location of NOAA regulations for which OMB approval numbers have been issued. Because this final rule revises and adds data elements within a collection-of-information for recordkeeping and reporting requirements, 15 CFR 902.1(b) is revised to reference correctly the sections resulting from this final rule.

    Classification

    The NMFS Assistant Administrator, Alaska Region, NMFS, determined that Amendment 113 to the FMP and this rule are necessary for the conservation and management of the groundfish fishery and that they are consistent with the Magnuson-Stevens Act and other applicable laws.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    Administrative Procedure Act

    The NMFS Assistant Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for this final rule. This finding is based on the need to provide the City of Adak and the City of Atka with sufficient time to submit a notification of intent to process that complies with the regulatory requirements after the notification requirements are effective; to provide NMFS with sufficient time to notify the general public and the affected industry as to whether the Aleutian Islands CV Harvest Set-Aside will be in effect for 2017; and to provide the affected industry with sufficient time to adequately prepare for the start of the 2017 fishing year on January 1, 2017.

    NMFS has determined that it must give the City of Adak and the City of Atka 15 days after the effective date of the notification of intent to process regulations to take all necessary steps to prepare, sign, and submit a notification of intent to process that complies with the regulatory requirements at § 679.20(a)(7)(viii)(D). Because these cities are aware of this action, have been anticipating its approval, and support its implementation in time for the 2017 fishing year, NMFS has determined that 15 days will provide the cities with enough time to comply with the notification requirements in 2016. Without waiver of the 30-day delay in effectiveness, the deadline for submission of a notification of intent to process would occur 45 days after publication of the final rule in the Federal Register, which means the deadline would occur very late in December 2016 or in early January 2017. A deadline in late December would not provide NMFS with adequate time to notify the industry as to whether the set-aside will be in effect on January 1, 2017, or provide the affected industry with sufficient time to prepare for the fishery which begins on January 1 for some participants in the Aleutian Islands Pacific cod fishery. Because NMFS must receive a notification of intent prior to the start of the fishing year to provide for an orderly start to the fishing year and to ensure the appropriate specifications are in place before fishing occurs on January 1, any notification deadline for 2016 that would occur after December 31, 2016, renders the set-aside meaningless for the 2017 fishing year. For reasons set forth in the Analysis and the preambles of the proposed rule and this final rule, the Council and NMFS have determined that the Aleutian Islands CV Harvest Set-Aside will provide important socioeconomic benefits and stability to Aleutian Islands fishing communities that intend to process Aleutian Islands Pacific cod in the upcoming fishing year. Waiving the 30-day delay in effectiveness will provide Aleutian Islands fishing communities with an opportunity to realize those benefits starting with the 2017 fishing year; failure to waive the delay in effectiveness will postpone that opportunity for an entire fishing year until 2018. One Aleutian Islands shoreplant has already informally notified NMFS that it intends to process Aleutian Islands Pacific cod in 2017.

    Additionally, as explained earlier in this final rule, the Analysis determined that the affected fishing industry would have sufficient time to prepare for the upcoming fishing year if notification of intent to process was received from Adak or Atka prior to December 15. Waiving the delay in effectiveness for these regulations provides for a submission deadline that will occur before December 15, thus providing NMFS with sufficient time to notify the public and affected industry as to whether the set-aside will be in effect, and for the affected industry, including vessels that deliver their catch to Aleutian Islands shoreplants and those that deliver their catch to at-sea processors, to prepare for the start of the fishing year with that knowledge. As explained above, failure to waive the delay in effectiveness could result in a notification deadline that occurs in late December, which would not provide NMFS or the affected industry with sufficient time to prepare for the upcoming fishery that starts on January 1, 2017.

    For these reasons, the NMFS Assistant Administrator finds good cause to waive the 30-day delay in effectiveness for this final rule.

    Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a Final Regulatory Flexibility Analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The preambles to the proposed rule and this final rule serve as the small entity compliance guide. This action does not require any additional compliance from small entities that is not described in the preambles. Copies of the proposed rule and this final rule are available from the NMFS Web site at http://alaskafisheries.noaa.gov.

    Final Regulatory Flexibility Analysis

    Section 604 of the Regulatory Flexibility Act (RFA) requires that, when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare a FRFA. Section 604 describes the required contents of a FRFA: (1) A statement of the need for and objectives of the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the U.S. Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

    (1) Need for and Objectives of This Final Rule

    A statement of the need for and objectives of this rule is contained earlier in the preamble and is not repeated here. This FRFA incorporates the IRFA (see ADDRESSES) and the summary of the IRFA in the proposed rule (81 FR 50444, August 1, 2016), a summary of the significant issues raised by the public comments, NMFS' responses to those comments, and a summary of the analyses completed to support the action.

    (2) Summary of Significant Issues Raised During Public Comment Period

    No comments were received that raised significant issues in response to the IRFA specifically; therefore, no changes were made to this rule as a result of comments on the IRFA. However, several comments were received on the economic impacts of Amendment 113 on the Amendment 80 trawl CP and hook-and-line CP sectors. For a summary of the comments received and NMFS' responses, refer to the section above titled “Responses to Comments.”

    (3) Public and Chief Counsel for Advocacy Comments on the IRFA

    NMFS published the proposed rule on August 1, 2016 (81 FR 50444), with comments invited through August 31, 2016. An IRFA was prepared and summarized in the “Classification” section of the preamble to the proposed rule. NMFS received 18 letters of public comment on the proposed rule and Amendment 113 to the FMP. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule.

    (4) Description and Number of Directly Regulated Small Entities

    This final rule directly regulates three groups of entities. This final rule will directly regulate trawl CVs harvesting Pacific cod in the BSAI because it limits how much Pacific cod those trawl CVs may harvest in the Bering Sea, and it may prohibit trawl CVs from participating in the Aleutian Islands Pacific cod fishery if they do not deliver their Pacific cod catch to Aleutian Islands shoreplants. It also directly regulates all non-trawl CVs who are harvesting Pacific cod in the Aleutian Islands because it will prohibit those non-trawl CVs from participating in the Aleutian Islands Pacific cod fishery if they do not deliver their Pacific cod catch to Aleutian Islands shoreplants. Finally, this final will directly regulate all CPs harvesting Pacific cod in the Aleutian Islands because it limits how much Pacific cod those CPs can harvest and process in the Aleutian Islands. This rule does not directly regulate the City of Adak or the City of Atka because it does not impose a requirement on those cities. This rule does not directly regulate entities participating in the harvesting and processing of Pacific cod managed under State GHL fisheries in State waters in the Bering Sea or Aleutian Islands.

    The SBA has established size standards for all major industry sectors in the United States. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 114111) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

    Based on the best available and most recent complete data from 2012 through 2014, between 10 and 16 CPs, and an estimated 43 CVs (trawl and non-trawl) will be directly regulated by this action in the BSAI. Of these, no CP is estimated to be a small entity, while 6 trawl CVs and 26 non-trawl CVs are estimated to be small entities based on the best available data on the gross receipts from these entities and their known affiliates. Therefore, a total of 32 vessels considered to be small entities will be directly regulated by this action. The IRFA assumes that each vessel is a unique entity; therefore, the total number of directly regulated entities may be an overestimate because some vessels are likely affiliated through common ownership. These potential affiliations are not known with the best available data and cannot be predicted.

    (5) Recordkeeping, Reporting, and Other Compliance Requirements

    This final rule adds a recordkeeping and reporting requirement to notify NMFS of an Aleutian Islands shoreplant's intent to process Aleutian Islands Pacific cod in the upcoming year; therefore, the recordkeeping, reporting, and other compliance requirements are increased slightly under this final rule. This final rule contains a new requirement for the City of Adak or the City of Atka to notify NMFS of its intent to process Aleutian Islands Pacific cod in the upcoming fishing year in order for the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside to go into effect in the upcoming fishing year. The City Manager of Adak or the City Administrator of Atka is required to provide NMFS with an official notification of intent prior to December 8, 2016, and no later than October 31 for each year after 2016, for the harvest set-aside to go into effect in the upcoming year. The professional skills necessary to provide this notice include writing, sending email, and access to a U.S. Post Office.

    (6) Description of Significant Alternatives Considered to the Final Action That Minimize Adverse Impacts on Small Entities

    The RFA requires identification of any significant alternatives to the final rule that accomplish the stated objectives of the final action, consistent with applicable statutes, and that would minimize any significant economic impact of the final rule on small entities. The Council considered a status quo alternative and one action alternative with several options and suboptions. The combination of options and suboptions under the action alternative effectively provided a broad range of potential alternative approaches to status quo management. Under the status quo, there would have been a continued risk that fishing communities in the Aleutian Islands would not be able to sustainably participate in the Aleutian Islands Pacific cod fishery. The action alternative does not affect any non-CDQ fishery sector's Pacific cod allocation, or the TAC of Aleutian Islands Pacific cod. The action alternative accomplishes the stated objectives of prioritizing a portion of the Aleutian Islands Pacific cod TAC for harvest by vessels that deliver their catch to Aleutian Islands shoreplants for processing, while minimizing adverse economic impacts on small entities and the potential for stranding a portion of the Aleutian Islands Pacific cod TAC.

    The Council considered a range of dates, varying amounts of Aleutian Islands Pacific cod for the harvest set-aside and Bering Sea sector limitation, and a suite of mechanisms to relieve the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside under the action alternative. The Council recommended the final combination of dates, harvest set-aside amounts, harvest limitations, and provisions to relieve the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside that would give fishery participants sufficient opportunity to harvest and deliver Aleutian Islands Pacific cod to the benefit of Aleutian Islands communities and shoreplants without stranding the trawl CV sector allocation or the Aleutian Islands Pacific cod TAC. The Council recommended and NMFS is implementing selected options in the action alternative such that if specific notification or minimum harvest and processing requirements are not met by a specific date, the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside will either not go into effect in the upcoming year, or they will be lifted for the remainder of the year.

    The Council considered and rejected two options under the action alternative. One option would have required that if less than 50 percent of the Aleutian Islands CV Harvest Set-Aside had been landed at an Aleutian Islands shoreplant by a given date, ranging from February 28 to March 15, the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside would be lifted. Instead, the Council selected an option that requires a minimum weight (1,000 mt) rather than a minimum percentage of the Aleutian Islands CV Harvest Set-Aside that must be landed at an Aleutian Islands shoreplant for processing by a given date (February 28) for the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside to remain in place.

    The Council also considered and rejected an option that would have exempted certain processing vessels with a history of processing Aleutian Islands Pacific cod in at least 12 out of 15 recent years from the final restrictions on processing and would have allowed them to process up to 2,000 mt of Aleutian Islands Pacific cod while the set-aside was in effect. This option could have allowed up to 10 processing vessels to continue to process Pacific cod during the A-season, limiting the effectiveness of this final rule to minimize the risk of a diminished historical share of Aleutian Islands Pacific cod being delivered to Aleutian Islands shoreplants and the communities where those shoreplants are located.

    Federal Rules That May Duplicate, Overlap, or Conflict With the Final Action

    NMFS has not identified any duplication, overlap, or conflict between this final action and existing Federal rules.

    Collection-of-Information Requirements

    This final rule contains a collection-of-information requirement subject to the PRA and which has been approved by OMB under control number 0648-0743.

    Public reporting burden for Notification of Intent to Process Aleutian Islands Pacific cod is estimated to average 30 minutes per individual response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

    Send comments regarding this data collection, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS Alaska Region (see ADDRESSES), and by email to [email protected], or fax to (202) 395-5806.

    Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

    List of Subjects 15 CFR Part 902

    Reporting and recordkeeping requirements.

    50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: November 14, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 15 CFR part 902 and 50 CFR part 679 as follows:

    Title 15—Commerce and Foreign Trade PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS 1. The authority citation for part 902 continues to read as follows: Authority:

    44 U.S.C. 3501 et seq.

    2. In § 902.1, in the table in paragraph (b), under the entry “50 CFR”, add an entry for “679.20(a)(7)(viii)” to read as follows:
    § 902.1 OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    (b) * * *

    CFR part or section where the information collection
  • requirement is located
  • Current OMB control number
  • (all numbers begin with 0648-)
  • *    *    *    *    * 50 CFR: *    *    *    *    * 679.20(a)(7)(viii) -0743 *    *    *    *    *
    Title 50—Wildlife and Fisheries PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 3. The authority citation for 50 CFR part 679 continues to read as follows: Authority:

    16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447; Pub. L. 111-281.

    4. In § 679.2, add a definition for “Aleutian Islands shoreplant” in alphabetical order to read as follows:
    § 679.2 Definitions.

    Aleutian Islands shoreplant means a processing facility that is physically located on land west of 170° W. longitude within the State of Alaska.

    5. In § 679.20, add paragraph (a)(7)(viii) to read as follows:
    § 679.20 General limitations.

    (a) * * *

    (7) * * *

    (viii) Aleutian Islands Pacific Cod Catcher Vessel Harvest Set-Aside Program—(A) Calculation of the Aleutian Islands Pacific cod non-CDQ ICA and DFA. Each year, during the annual harvest specifications process set forth at paragraph (c) of this section, NMFS will specify the Aleutian Islands Pacific cod non-CDQ incidental catch allowance and directed fishing allowance from the Aleutian Islands Pacific cod non-CDQ TAC as follows. Shortly after completion of the process set forth in paragraph (a)(7)(viii)(D) of this section, NMFS will announce through notice in the Federal Register whether the ICA and DFA will be in effect for the upcoming fishing year.

    (1) Aleutian Islands Pacific cod non-CDQ incidental catch allowance. Each year, during the annual harvest specifications process set forth at paragraph (c) of this section, NMFS will specify an amount of Aleutian Islands Pacific cod that NMFS estimates will be taken as incidental catch in non-CDQ directed fisheries for groundfish other than Pacific cod in the Aleutian Islands. This amount will be the Aleutian Islands Pacific cod non-CDQ incidental catch allowance and will be deducted from the aggregate portion of Pacific cod TAC annually allocated to the non-CDQ sectors identified in paragraph (a)(7)(ii)(A) of this section.

    (2) Aleutian Islands Pacific cod non-CDQ directed fishing allowance. Each year, during the annual harvest specifications process set forth at paragraph (c) of this section, NMFS will specify the Aleutian Islands Pacific cod non-CDQ directed fishing allowance. The Aleutian Islands Pacific cod non-CDQ directed fishing allowance will be the amount of the Aleutian Islands Pacific cod TAC remaining after subtraction of the Aleutian Islands Pacific cod CDQ reserve and the Aleutian Islands Pacific cod non-CDQ incidental catch allowance.

    (B) Calculation of the Aleutian Islands CV Harvest Set-Aside and Aleutian Islands Unrestricted Fishery. Each year, during the annual harvest specifications process set forth at paragraph (c) of this section, NMFS will specify the Aleutian Islands CV Harvest Set-Aside and the Aleutian Islands Unrestricted Fishery. The Aleutian Islands CV Harvest Set-Aside will be an amount of Pacific cod equal to the lesser of either the Aleutian Islands Pacific cod non-CDQ directed fishing allowance as determined in paragraph (a)(7)(viii)(A)(2) of this section or 5,000 mt. The Aleutian Islands Unrestricted Fishery will be the amount of Pacific cod that remains after deducting the Aleutian Islands CV Harvest Set-Aside from the Aleutian Islands Pacific cod non-CDQ directed fishing allowance as determined in paragraph (a)(7)(viii)(A)(2) of this section. Shortly after completion of the process set forth in paragraph (a)(7)(viii)(D) of this section, NMFS will announce through notice in the Federal Register whether the Aleutian Islands CV Harvest Set-Aside and the Aleutian Islands Unrestricted Fishery will be in effect for the upcoming fishing year.

    (C) Calculation of the Bering Sea Trawl CV A-Season Sector Limitation. Each year, during the annual harvest specifications process set forth at paragraph (c) of this section, NMFS will specify the Bering Sea Trawl CV A-Season Sector Limitation and the amount of the trawl CV sector's A-season allocation that could be harvested in the Bering Sea subarea prior to March 21. The Bering Sea Trawl CV A-Season Sector Limitation will be an amount of Pacific cod equal to the lesser of either the Aleutian Islands Pacific cod non-CDQ directed fishing allowance as determined in paragraph (a)(7)(viii)(A)(2) of this section or 5,000 mt. The amount of the trawl CV sector's A-season allocation that could be harvested in the Bering Sea subarea prior to March 21 will be the amount of Pacific cod that remains after deducting the Bering Sea Trawl CV A-Season Sector Limitation from the amount of BSAI Pacific cod allocated to the trawl CV sector A-season as determined in paragraph (a)(7)(iv)(A)(1)(i) of this section. Shortly after completion of the process set forth in paragraph (a)(7)(viii)(D) of this section, NMFS will announce through notice in the Federal Register whether the Bering Sea Trawl CV A-Season Sector Limitation will be in effect for the upcoming fishing year.

    (D) Annual notification of intent to process Aleutian Islands Pacific cod—(1) Submission of notification. The provisions of paragraph (a)(7)(viii)(E) of this section will apply if the either the City Manager of the City of Adak or the City Administrator of the City of Atka submits to NMFS a timely and complete notification of its intent to process Aleutian Islands Pacific cod during the upcoming fishing year. This notification must be submitted annually to NMFS using the methods described below.

    (2) Submittal method. An official notification of intent to process Aleutian Islands Pacific cod during the upcoming fishing year in the form of a letter or memorandum signed by the City Manager of the City of Adak or the City Administrator of the City of Atka must be submitted by certified mail through the United States Postal Service to: NMFS Alaska Region, Attn: Regional Administrator, P. O. Box 21668, Juneau, AK 99802. The City Manager or City Administrator must also submit an electronic copy of the official notification of intent and the certified mail receipt with postmark via email to [email protected] Email submission is in addition to submission via U.S. Postal Service; email submission does not replace the requirement to submit an official notification of intent via U.S. Postal Service.

    (3) NMFS confirmation. On or shortly after December 8, 2016, or November 1 for each year after 2016, the Regional Administrator will send a signed and dated letter to the City Manager of the City of Adak or the City Administrator of the City of Atka either confirming NMFS' receipt of its official notification of intent to process Aleutian Islands Pacific cod, or informing the city that NMFS did not receive notification by the deadline.

    (4) Deadline. The official notification of intent to process Aleutian Islands Pacific cod for the upcoming fishing year must be postmarked no later than December 8, 2016, or October 31 for each year after 2016, in order for the provisions of paragraph (a)(7)(viii)(E) of this section to apply during the upcoming fishing year. Notifications of intent postmarked on or after December 9, 2016, or November 1 for each year after 2016, will not be accepted by the Regional Administrator. The electronic copy of the official notification of intent and certified mail receipt with postmark must be submitted to NMFS via email dated no later than December 8, 2016, or no later than October 31 for each year after 2016, in order for the provisions of paragraph (a)(7)(viii)(E) of this section to apply during the upcoming fishing year.

    (5) Contents of notification. A notification of intent to process Aleutian Islands Pacific cod for the upcoming fishing year must contain the following information:

    (i) Date,

    (ii) Name of city,

    (iii) Statement of intent to process Aleutian Islands Pacific cod,

    (iv) Identification of the fishing year during which the city intends to process Aleutian Island Pacific cod, and

    (v) Signature of and contact information for the City Manager or City Administrator of the city intending to process Aleutian Islands Pacific cod.

    (E) Aleutian Islands community protections for Pacific cod. If the City Manager of the City of Adak or the City Administrator of the City of Atka submits a timely and complete notification in accordance with paragraph (a)(7)(viii)(D) of this section, then the following provisions will apply for the fishing year following the submission of the timely and complete notification:

    (1) Bering Sea Trawl CV A-Season Sector Limitation. Prior to March 21, the harvest of Pacific cod by the trawl CV sector in the Bering Sea subarea is limited to an amount equal to the trawl CV sector A-season allocation as determined in paragraph (a)(7)(iv)(A)(1)(i) of this section minus the Bering Sea Trawl CV A-Season Sector Limitation as determined in paragraph (a)(7)(viii)(C) of this section. If, after the start of the fishing year, the provisions of paragraphs (a)(7)(viii)(E)(4) or (5) of this section are met, this paragraph (a)(7)(viii)(E)(1) will not apply for the remainder of the fishing year.

    (2) Aleutian Islands Catcher Vessel Harvest Set-Aside. Prior to March 15, only catcher vessels that deliver their catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for processing may directed fish for that portion of the Aleutian Islands Pacific cod non-CDQ directed fishing allowance that is specified as the Aleutian Islands Catcher Vessel Harvest Set-Aside in paragraph (a)(7)(viii)(B) of this section. If, after the start of the fishing year, the provisions of paragraph (a)(7)(viii)(E)(4) of this section are met, this paragraph (a)(7)(viii)(E)(2) will not apply for the remainder of the fishing year.

    (3) Aleutian Islands Unrestricted Fishery. Prior to March 15, vessels otherwise authorized to directed fish for Pacific cod in the Aleutian Islands may directed fish for that portion of the Aleutian Islands Pacific cod non-CDQ directed fishing allowance that is specified as the Aleutian Islands Unrestricted Fishery as determined in paragraph (a)(7)(viii)(B) of this section and may deliver their catch to any eligible processor.

    (4) Minimum Aleutian Islands shoreplant landing requirement. If less than 1,000 mt of the Aleutian Islands Catcher Vessel Harvest Set-Aside is landed at Aleutian Islands shoreplants on or before February 28, then paragraphs (a)(7)(viii)(E)(1) and (2) of this section will not apply for the remainder of the fishing year.

    (5) Harvest of Aleutian Islands Catcher Vessel Harvest Set-Aside. If the Aleutian Islands Catcher Vessel Harvest Set-Aside is fully harvested prior to March 15, then paragraph (a)(7)(viii)(E)(1) of this section will not apply for the remainder of the fishing year.

    [FR Doc. 2016-28152 Filed 11-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection DEPARTMENT OF THE TREASURY 19 CFR Part 12 [CBP Dec. 16-21] RIN 1515-AE18 Extension of Import Restrictions Imposed on Certain Archaeological and Ethnological Material From Greece AGENCY:

    Customs and Border Protection, Department of Homeland Security; Department of the Treasury.

    ACTION:

    Final rule.

    SUMMARY:

    This document amends the U.S. Customs and Border Protection (CBP) regulations to reflect the extension of import restrictions on certain archaeological and ethnological material from the Hellenic Republic (Greece). The restrictions, which were originally imposed by CBP Decision (CBP Dec.) 11-25, are due to expire on November 21, 2016. The Assistant Secretary for Educational and Cultural Affairs, United States Department of State, has determined that factors continue to warrant the imposition of import restrictions and no cause for suspension exists. Accordingly, these import restrictions will remain in effect for an additional five years, and the CBP regulations are being amended to reflect this extension until November 21, 2021. These restrictions are being extended pursuant to determinations of the United States Department of State made under the terms of the Convention on Cultural Property Implementation Act that implemented the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. CBP Dec. 11-25 contains the Designated List of archaeological and ecclesiastical ethnological material from Greece, to which the restrictions apply.

    DATES:

    Effective Date: November 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    For legal aspects, Lisa L. Burley, Chief, Cargo Security, Carriers and Restricted Merchandise Branch, Regulations and Rulings, Office of Trade, (202) 325-0215. For operational aspects, William R. Scopa, Branch Chief, Partner Government Agency Branch, Trade Policy and Programs, Office of Trade, (202) 863-6554, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    Pursuant to the provisions of the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention, implemented by the Convention on Cultural Property Implementation Act (Pub. L. 97-446, 19 U.S.C. 2601 et seq.), the United States made a bilateral agreement with Greece, which entered into force on November 21, 2011, concerning the imposition of import restrictions on archaeological materials representing Greece's cultural heritage from the Upper Paleolithic (beginning approximately 20,000 B.C.) through the 15th century A.D., and ecclesiastical ethnological material representing Greece's Byzantine culture (approximately the 4th century through the 15th century A.D.). On December 1, 2011, CBP published CBP Dec. 11-25 in the Federal Register (76 FR 74691), which amended 19 CFR 12.104g(a) to indicate the imposition of these restrictions and included a list designating the types of archaeological and ecclesiastical ethnological material covered by the restrictions.

    Import restrictions listed in 19 CFR 12.104g(a) are effective for no more than five years beginning on the date on which the agreement enters into force with respect to the United States. This period can be extended for additional periods not to exceed five years if it is determined that the factors which justified the initial agreement still pertain and no cause for suspension of the agreement exists (19 CFR 12.104g(a)).

    On February 5, 2016, the Department of State received a request by the Government of the Hellenic Republic to extend the Agreement. Subsequently, the Department of State proposed to extend the Agreement. After considering the views and recommendation of the Cultural Property Advisory Committee, the Assistant Secretary for Educational and Cultural Affairs, United States Department of State, determined that the cultural heritage of Greece continues to be in jeopardy from pillage of archaeological materials representing Greece's cultural heritage from the Upper Paleolithic (beginning approximately 20,000 B.C.) through the 15th century A.D., and ecclesiastical ethnological material representing Greece's Byzantine culture (approximately the 4th century through the 15th century A.D.); and made the necessary determinations to extend the import restrictions for an additional five years. Diplomatic notes have been exchanged, reflecting the extension of those restrictions for an additional five-year period. Accordingly, CBP is amending 19 CFR 12.104g(a) to reflect this extension of the import restrictions.

    The Designated List archaeological materials representing Greece's cultural heritage from the Upper Paleolithic (beginning approximately 20,000 B.C.) through the 15th century A.D., and ecclesiastical ethnological material representing Greece's Byzantine culture (approximately the 4th century through the 15th century A.D.) covered by these import restrictions is set forth in CBP Dec. 11-25. The Agreement and Designated List may also be found at the following Internet Web site address: https://eca.state.gov/cultural-heritage-center/cultural-property-protection/bilateral-agreements/greece.

    The restrictions on the importation of these archaeological and ecclesiastical ethnological materials from Greece are to continue in effect for an additional five years. Importation of such material continues to be restricted unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

    Inapplicability of Notice and Delayed Effective Date

    This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure (5 U.S.C. 553(a)(1)). In addition, CBP has determined that such notice or public procedure would be impracticable and contrary to the public interest because the action being taken is essential to avoid interruption of the application of the existing import restrictions (5 U.S.C. 553(b)(B)). For the same reasons, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

    Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

    Executive Order 12866

    It has been determined that this rule is not a significant regulatory action under Executive Order 12866.

    Signing Authority

    This regulation is being issued in accordance with 19 CFR 0.1(a)(1).

    List of Subjects in 19 CFR Part 12

    Cultural property, Customs duties and inspection, Imports, Prohibited merchandise.

    Amendment to CBP Regulations

    For the reasons set forth above, part 12 of title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below:

    PART 12—SPECIAL CLASSES OF MERCHANDISE 1. The general authority citation for part 12 and the specific authority citation for § 12.104g continue to read as follows: Authority:

    5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624.

    Sections 12.104 through 12.104i also issued under 19 U.S.C. 2612;

    § 12.104g [Amended]
    2. In § 12.104g, paragraph (a), the table is amended in the entry for Greece (Hellenic Republic) by adding after the phrase “CBP Dec. 11-25” the phrase “extended by CBP Dec. 16- 21”. R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection. Approved: November 21, 2016. Timothy E. Skud, Deputy Assistant Secretary of the Treasury.
    [FR Doc. 2016-28355 Filed 11-21-16; 4:15 pm] BILLING CODE 9111-14-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 101 Food Labeling CFR Correction In Title 21 of the Code of Federal Regulations, Parts 100 to 169, revised as of April 1, 2016, on page 50, § 101.11 is added to read as follows:
    § 101.11 Nutrition Labeling of Standard Menu Items in Covered Establishments

    (a) Definitions. The definitions of terms in section 201 of the Federal Food, Drug, and Cosmetic Act apply to such terms when used in this section. In addition, for purposes of this section:

    Authorized official of a restaurant or similar retail food establishment means the owner, operator, agent in charge, or other person authorized by the owner, operator, or agent in charge to register the restaurant or similar retail food establishment, which is not otherwise subject to section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act, with FDA for the purposes of paragraph (d) of this section.

    Combination meal means a standard menu item that consists of more than one food item, for example a meal that includes a sandwich, a side dish, and a drink. A combination meal may be represented on the menu or menu board in narrative form, numerically, or pictorially. Some combination meals may include a variable menu item or be a variable menu item as defined in this paragraph where the components may vary. For example, the side dish may vary among several options (e.g., fries, salad, or onion rings) or the drinks may vary (e.g., soft drinks, milk, or juice) and the customer selects which of these items will be included in the meal.

    Covered establishment means a restaurant or similar retail food establishment that is a part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership, e.g., individual franchises) and offering for sale substantially the same menu items, as well as a restaurant or similar retail food establishment that is registered to be covered under paragraph (d) of this section.

    Custom order means a food order that is prepared in a specific manner based on an individual customer's request, which requires the covered establishment to deviate from its usual preparation of a standard menu item, e.g., a club sandwich without the bacon if the establishment usually includes bacon in its club sandwich.

    Daily special means a menu item that is prepared and offered for sale on a particular day, that is not routinely listed on a menu or menu board or offered by the covered establishment, and that is promoted by the covered establishment as a special menu item for that particular day.

    Doing business under the same name means sharing the same name. The term “name” refers to either:

    (i) The name of the establishment presented to the public; or

    (ii) If there is no name of the establishment presented to the public (e.g., an establishment with the generic descriptor “concession stand”), the name of the parent entity of the establishment. When the term “name” refers to the name of the establishment presented to the public under paragraph (i) of this definition, the term “same” includes names that are slight variations of each other, for example, due to the region, location, or size (e.g., “New York Ave. Burgers” and “Pennsylvania Ave. Burgers” or “ABC” and “ABC Express”).

    Food on display means restaurant-type food that is visible to the customer before the customer makes a selection, so long as there is not an ordinary expectation of further preparation by the consumer before consumption.

    Food that is part of a customary market test means food that appears on a menu or menu board for less than 90 consecutive days in order to test consumer acceptance of the product.

    Location means a fixed position or site.

    Menu or menu board means the primary writing of the covered establishment from which a customer makes an order selection, including, but not limited to, breakfast, lunch, and dinner menus; dessert menus; beverage menus; children's menus; other specialty menus; electronic menus; and menus on the Internet. Determining whether a writing is or is part of the primary writing of the covered establishment from which a customer makes an order selection depends on a number of factors, including whether the writing lists the name of a standard menu item (or an image depicting the standard menu item) and the price of the standard menu item, and whether the writing can be used by a customer to make an order selection at the time the customer is viewing the writing. The menus may be in different forms, e.g., booklets, pamphlets, or single sheets of paper. Menu boards include those inside a covered establishment as well as drive-through menu boards at covered establishments.

    Offering for sale substantially the same menu items means offering for sale a significant proportion of menu items that use the same general recipe and are prepared in substantially the same way with substantially the same food components, even if the name of the menu item varies, (e.g., “Bay View Crab Cake” and “Ocean View Crab Cake”). “Menu items” in this definition refers to food items that are listed on a menu or menu board or that are offered as self-service food or food on display. Restaurants and similar retail food establishments that are part of a chain can still be offering for sale substantially the same menu items if the availability of some menu items varies within the chain. Having the same name may indicate, but does not necessarily guarantee, that menu items are substantially the same.

    Restaurant or similar retail food establishment means a retail establishment that offers for sale restaurant-type food, except if it is a school as defined by 7 CFR 210.2 or 220.2.

    Restaurant-type food means food that is:

    (i) Usually eaten on the premises, while walking away, or soon after arriving at another location; and

    (ii) Either:

    (A) Served in restaurants or other establishments in which food is served for immediate human consumption or which is sold for sale or use in such establishments; or

    (B) Processed and prepared primarily in a retail establishment, ready for human consumption, of the type described in paragraph (ii)(A) of this definition, and offered for sale to consumers but not for immediate human consumption in such establishment and which is not offered for sale outside such establishment.

    Self-service food means restaurant-type food that is available at a salad bar, buffet line, cafeteria line, or similar self-service facility and that is served by the customers themselves. Self-service food also includes self-service beverages.

    Standard menu item means a restaurant-type food that is routinely included on a menu or menu board or routinely offered as a self-service food or food on display.

    Temporary menu item means a food that appears on a menu or menu board for less than a total of 60 days per calendar year. The 60 days includes the total of consecutive and non-consecutive days the item appears on the menu.

    Variable menu item means a standard menu item that comes in different flavors, varieties, or combinations, and is listed as a single menu item.

    (b) Requirements for nutrition labeling for food sold in covered establishments—(1) Applicability. (i) The labeling requirements in this paragraph (b) apply to standard menu items offered for sale in covered establishments.

    (ii)(A) The labeling requirements in this paragraph (b) do not apply to foods that are not standard menu items, including:

    (1) Items such as condiments that are for general use, including those placed on the table or on or behind the counter; daily specials; temporary menu items; custom orders; food that is part of a customary market test; and

    (2) Self-service food and food on display that is offered for sale for less than a total of 60 days per calendar year or fewer than 90 consecutive days in order to test consumer acceptance.

    (B) The labeling requirements of paragraph (b)(2)(iii) of this section do not apply to alcoholic beverages that are foods on display and are not self-service foods.

    (2) Nutrition information. (i) Except as provided by paragraph (b)(2)(i)(A)(8) of this section, the following must be provided on menus and menu boards:

    (A) The number of calories contained in each standard menu item listed on the menu or menu board, as usually prepared and offered for sale. In the case of multiple-serving standard menu items, this means the calories declared must be for the whole menu item listed on the menu or menu board as usually prepared and offered for sale (e.g., “pizza pie: 1600 cal”); or per discrete serving unit as long as the discrete serving unit (e.g., pizza slice) and total number of discrete serving units contained in the menu item are declared on the menu or menu board, and the menu item is usually prepared and offered for sale divided in discrete serving units (e.g., “pizza pie: 200 cal/slice, 8 slices”). The calories must be declared in the following manner:

    (1) The number of calories must be listed adjacent to the name or the price of the associated standard menu item, in a type size no smaller than the type size of the name or the price of the associated standard menu item, whichever is smaller, in the same color, or a color at least as conspicuous as that used for the name of the associated standard menu item, and with the same contrasting background or a background at least as contrasting as that used for the name of the associated standard menu item.

    (2) To the nearest 5-calorie increment up to and including 50 calories and to the nearest 10-calorie increment above 50 calories, except that amounts less than 5 calories may be expressed as zero.

    (3) The term “Calories” or “Cal” must appear as a heading above a column listing the number of calories for each standard menu item or adjacent to the number of calories for each standard menu item. If the term “Calories” or “Cal” appears as a heading above a column of calorie declarations, the term must be in a type size no smaller than the smallest type size of the name or price of any menu item on that menu or menu board in the same color or a color at least as conspicuous as that used for that name or price and in the same contrasting background or a background at least as contrasting as that used for that name or price. If the term “Calories” or “Cal” appears adjacent to the number of calories for the standard menu item, the term “Calories” or “Cal” must appear in the same type size and in the same color and contrasting background as the number of calories.

    (4) Additional requirements that apply to each individual variable menu item:

    (i) When the menu or menu board lists flavors or varieties of an entire individual variable menu item (such as soft drinks, ice cream, doughnuts, dips, and chicken that can be grilled or fried), the calories must be declared separately for each listed flavor or variety. Where flavors or varieties have the same calorie amounts (after rounding in accordance with paragraph (b)(2)(i)(A)(2) of this section), the calorie declaration for such flavors or varieties can be listed as a single calorie declaration adjacent to the flavors or varieties, provided that the calorie declaration specifies that the calorie amount listed represents the calorie amounts for each individual flavor or variety.

    (ii) When the menu or menu board does not list flavors or varieties for an entire individual variable menu item, and only includes a general description of the variable menu item (e.g., “soft drinks”), the calories must be declared for each option with a slash between the two calorie declarations where only two options are available (e.g., “150/250 calories”) or as a range in accordance with the requirements of paragraph (b)(2)(i)(A)(7) of this section where more than two options are available (e.g., “100-250 calories”).

    (iii) When the menu or menu board describes flavors or varieties for only part of an individual variable menu item (such as different types of cheese offered in a grilled cheese sandwich (e.g., “Grilled Cheese (Cheddar or Swiss)”), the calories must be declared for each option with a slash between the two calorie declarations where only two options are available (e.g., “450/500 calories”) or as a range in accordance with the requirements of paragraph (b)(2)(i)(A)(7) of this section where more than two options are available (e.g., “450-550 calories”).

    (5) Additional requirements that apply to a variable menu item that is offered for sale with the option of adding toppings listed on the menu or menu board. When the menu or menu board lists toppings that can be added to a menu item (such as pizza or ice cream):

    (i) The calories must be declared for the basic preparation of the menu item as listed (e.g., “small pizza pie,” “single scoop ice cream”).

    (ii) The calories must be separately declared for each topping listed on the menu or menu board (e.g., pepperoni, sausage, green peppers, onions on pizza; fudge, almonds, sprinkles on ice cream), specifying that the calories are added to the calories contained in the basic preparation of the menu item. Where toppings have the same calorie amounts (after rounding in accordance with paragraph (b)(2)(i)(A)(2) of this section), the calorie declaration for such toppings can be listed as a single calorie declaration adjacent to the toppings, provided that the calorie declaration specifies that the calorie amount listed represents the calorie amount for each individual topping.

    (iii) The calories for the basic preparation of the menu item must be declared for each size of the menu item. The calories for each topping listed on the menu or menu board must be declared for each size of the menu item, or declared using a slash between the two calorie declarations for each topping where only two sizes of the menu item are available (e.g., “adds 150/250 cal”) or as a range for each topping in accordance with the requirements of paragraph (b)(2)(i)(A)(7) of this section where more than two sizes of the menu item are available (e.g., “adds 100-250 cal”). If a slash between two calorie declarations or a range of calorie declarations is used, the menu or menu board must indicate that the variation in calories for each topping arises from the size of the menu item to which the toppings are added.

    (iv) If the amount of the topping included on the basic preparation of the menu item decreases based on the total number of toppings ordered for the menu item (such as is sometimes the case with pizza toppings), the calories for each topping must be declared as single values representing the calories for each topping when added to a one-topping menu item, specifying that the calorie declaration is for the topping when added to a one-topping menu item.

    (6) Additional requirements that apply to a combination meal. Except as provided in paragraph (b)(2)(i)(A)(6)(iv) of this section:

    (i) When the menu or menu board lists two options for menu items in a combination meal (e.g., a sandwich with a side salad or chips), the calories must be declared for each option with a slash between the two calorie declarations (e.g., “350/450 calories”).

    (ii) When the menu or menu board lists three or more options for menu items in a combination meal (e.g., a sandwich with chips, a side salad, or fruit), the calories must be declared as a range in accordance with the requirements of paragraph (b)(2)(i)(A)(7) of this section (e.g., “350-500 calories”).

    (iii) When the menu or menu board includes a choice to increase or decrease the size of a combination meal, the calorie difference must be declared for the increased or decreased size with a slash between two calorie declarations (e.g., “Adds 100/150 calories,” “Subtracts 100/150 calories”) if the menu or menu board lists two options for menu items in the combination meal, or as a range in accordance with the requirements of paragraph (b)(2)(i)(A)(7) of this section (e.g., “Adds 100-250 calories,” “Subtracts 100-250 calories”) if the menu or menu board lists three or more options for menu items in the combination meal.

    (iv) Where the menu or menu board describes an opportunity for a consumer to combine standard menu items for a special price (e.g.,”Combine Any Sandwich with Any Soup or Any Salad for $8.99”), and the calories for each standard menu item, including each size option as described in paragraph (b)(2)(i)(A)(6)(iii) of this section if applicable, available for the consumer to combine are declared elsewhere on the menu or menu board, the requirements of paragraphs (b)(2)(i)(A)(6)(i), (ii), and (iii) of this section do not apply.

    (7) Additional format requirements for declaring calories for an individual variable menu item, a combination meal, and toppings as a range, if applicable. Calories declared as a range must be in the format “xx-yy,” where “xx” is the caloric content of the lowest calorie variety, flavor, or combination, and “yy” is the caloric content of the highest calorie variety, flavor, or combination.

    (8) Exception for a variable menu item that has no clearly identifiable upper bound to the range of calories: If the variable menu item appears on the menu or menu board and is a self-service food or food on display, and there is no clearly identifiable upper bound to the range, e.g., all-you-can-eat buffet, then the menu or menu board must include a statement, adjacent to the name or price of the item, referring customers to the self-service facility for calorie information, e.g., “See buffet for calorie declarations.” This statement must appear in a type size no smaller than the type size of the name or price of the variable menu item, whichever is smaller, and in the same color or a color at least as conspicuous as that used for that name or price, with the same contrasting background or a background at least as contrasting as that used for that name or price.

    (9) Additional requirements that apply to beverages that are not self-service. For beverages that are not self-service, calories must be declared based on the full volume of the cup served without ice, unless the covered establishment ordinarily dispenses and offers for sale a standard beverage fill (i.e., a fixed amount that is less than the full volume of the cup per cup size) or dispenses a standard ice fill (i.e., a fixed amount of ice per cup size). If the covered establishment ordinarily dispenses and offers for sale a standard beverage fill or dispenses a standard ice fill, the covered establishment must declare calories based on such standard beverage fill or standard ice fill.

    (B) The following statement designed to enable consumers to understand, in the context of a total daily diet, the significance of the calorie information provided on menus and menu boards: “2,000 calories a day is used for general nutrition advice, but calorie needs vary.” For menus and menu boards targeted to children, the following options may be used as a substitute for or in addition to the succinct statement: “1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to 8 years, but calorie needs vary.” or “1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to 8 years and 1,400 to 2,000 calories a day for children ages 9 to 13 years, but calorie needs vary.”

    (1) This statement must be posted prominently and in a clear and conspicuous manner in a type size no smaller than the smallest type size of any calorie declaration appearing on the same menu or menu board and in the same color or in a color at least as conspicuous as that used for the calorie declarations and with the same contrasting background or a background at least as contrasting as that used for the calorie declarations.

    (2) For menus, this statement must appear on the bottom of each page of the menu. On menu pages that also bear the statement required by paragraph (b)(2)(i)(C) of this section, this statement must appear immediately above, below, or beside the statement required by paragraph (b)(2)(i)(C) of this section.

    (3) For menu boards, this statement must appear on the bottom of the menu board, immediately above, below, or beside the statement required by paragraph (b)(2)(i)(C) of this section.

    (C) The following statement regarding the availability of the additional written nutrition information required in paragraph (b)(2)(ii) of this section must be on all forms of the menu or menu board: “Additional nutrition information available upon request.”

    (1) This statement must be posted prominently and in a clear and conspicuous manner in a type size no smaller than the smallest type size of any calorie declaration appearing on the same menu or menu board and in the same color or in a color at least as conspicuous as that used for the caloric declarations, and with the same contrasting background or a background at least as contrasting as that used for the caloric declarations.

    (2) For menus, the statement must appear on the bottom of the first page with menu items immediately above, below, or beside the succinct statement required by paragraph (b)(2)(i)(B) of this section.

    (3) For menu boards, the statement must appear on the bottom of the menu board immediately above, below, or beside the succinct statement required by paragraph (b)(2)(i)(B) of this section.

    (ii) The following nutrition information for a standard menu item must be available in written form on the premises of the covered establishment and provided to the customer upon request. This nutrition information must be presented in the order listed and using the measurements listed, except as provided in paragraph (b)(2)(ii)(B) of this section. Rounding of these nutrients must be in compliance with § 101.9(c). The information must be presented in a clear and conspicuous manner, including using a color, type size, and contrasting background that render the information likely to be read and understood by the ordinary individual under customary conditions of purchase and use. Covered establishments may use the abbreviations allowed for Nutrition Facts for certain packaged foods in § 101.9(j)(13)(ii)(B):

    (A)(1) Total calories (cal);

    (2) Calories from fat (fat cal);

    (3) Total fat (g);

    (4) Saturated fat (g);

    (5) Trans fat (g);

    (6) Cholesterol (mg);

    (7) Sodium (mg);

    (8) Total carbohydrate (g);

    (9) Dietary fiber (g);

    (10) Sugars (g); and

    (11) Protein (g).

    (B) If a standard menu item contains insignificant amounts of all the nutrients required to be disclosed in paragraph (b)(2)(ii)(A) of this section, the establishment is not required to include nutrition information regarding the standard menu item in the written form. However, if the covered establishment makes a nutrient content claim or health claim, the establishment is required to provide nutrition information on the nutrient that is the subject of the claim in accordance with § 101.10. For standard menu items that contain insignificant amounts of six or more of the required nutrients, the declaration of nutrition information required by paragraph (b)(2)(ii)(A) of this section may be presented in a simplified format.

    (1) An insignificant amount is defined as that amount that allows a declaration of zero in nutrition labeling, except that for total carbohydrates, dietary fiber, and protein, it must be an amount that allows a declaration of “less than one gram.”

    (2) The simplified format must include information, in a column, list, or table, on the following nutrients:

    (i) Total calories, total fat, total carbohydrates, protein, and sodium; and

    (ii) Calories from fat, and any other nutrients identified in paragraph (b)(2)(ii)(A) of this section that are present in more than insignificant amounts.

    (3) If the simplified format is used, the statement “Not a significant source of __” (with the blank filled in with the names of the nutrients required to be declared in the written nutrient information and calories from fat that are present in insignificant amounts) must be included at the bottom of the list of nutrients.

    (C) For variable menu items, the nutrition information listed in paragraph (b)(2)(ii)(A) of this section must be declared as follows for each size offered for sale:

    (1) The nutrition information required in paragraph (b)(2)(ii)(A) of this section must be declared for the basic preparation of the item and, separately, for each topping, flavor, or variable component.

    (2) Additional format requirements for toppings if the amount of the topping included on the basic preparation of the menu item decreases based on the total number of toppings ordered for the menu item (such as is sometimes the case with pizza toppings). The nutrients for such topping must be declared as single values representing the nutrients for each topping when added to a one-topping menu item, specifying that the nutrient declaration is for the topping when added to a one-topping menu item.

    (3) If the calories and other nutrients are the same for different flavors, varieties, and variable components of the combination meal, each variety, flavor, and variable component of the combination meal is not required to be listed separately. All items that have the same nutrient values could be listed together with the nutrient values listed only once.

    (D) The written nutrition information required in paragraph (b)(2)(ii)(A) of this section may be provided on a counter card, sign, poster, handout, booklet, loose leaf binder, or electronic device such as a computer, or in a menu, or in any other form that similarly permits the written declaration of the required nutrient content information for all standard menu items. If the written nutrition information is not in a form that can be given to the customer upon request, it must be readily available in a manner and location on the premises that allows the customer/consumer to review the written nutrition information upon request.

    (iii) The following must be provided for a standard menu item that is self-service or on display.

    (A) Calories per displayed food item (e.g., a bagel, a slice of pizza, or a muffin), or if the food is not offered for sale in a discrete unit, calories per serving (e.g., scoop, cup), and the serving or discrete unit used to determine the calorie content (e.g., “per scoop” or “per muffin”) on either: A sign adjacent to and clearly associated with the corresponding food; (e.g., “150 calories per scoop); a sign attached to a sneeze guard with the calorie declaration and the serving or unit used to determine the calorie content above each specific food so that the consumer can clearly associate the calorie declaration with the food, except that if it is not clear to which food the calorie declaration and serving or unit refers, then the sign must also include the name of the food, e.g., “Broccoli and cheese casserole—200 calories per scoop”; or a single sign or placard listing the calorie declaration for several food items along with the names of the food items, so long as the sign or placard is located where a consumer can view the name, calorie declaration, and serving or unit of a particular item while selecting that item.

    (1) For purposes of paragraph (b)(2)(iii)(A) of this section, “per displayed food item”; means per each discrete unit offered for sale, for example, a bagel, a slice of pizza, or a muffin.

    (2) For purposes of paragraph (b)(2)(iii)(A) of this section, “per serving” means, for each food:

    (i) Per serving instrument used to dispense the food offered for sale, provided that the serving instrument dispenses a uniform amount of the food (e.g., a scoop or ladle);

    (ii) If a serving instrument that dispenses a uniform amount of food is not used to dispense the food, per each common household measure (e.g., cup or tablespoon) offered for sale or per unit of weight offered for sale, e.g., per quarter pound or per 4 ounces; or

    (iii) Per total number of fluid ounces in the cup in which a self-service beverage is served and, if applicable, the description of the cup size (e.g., “140 calories per 12 fluid ounces (small)”).

    (3) The calories must be declared in the following manner:

    (i) To the nearest 5-calorie increment up to and including 50 calories and to the nearest 10-calorie increment above 50 calories except that amounts less than 5 calories may be expressed as zero.

    (ii) If the calorie declaration is provided on a sign with the food's name, price, or both, the calorie declaration, accompanied by the term “Calories” or “Cal” and the amount of the serving or displayed food item on which the calories declaration is based must be in a type size no smaller than the type size of the name or price of the menu item whichever is smaller, in the same color, or a color that is at least as conspicuous as that used for that name or price, using the same contrasting background or a background at least as contrasting as that used for that name or price. If the calorie declaration is provided on a sign that does not include the food's name, price, or both, the calorie declaration, accompanied by the term “Calories” or “Cal” and the amount of the serving or displayed food item on which the calorie declaration is based must be clear and conspicuous.

    (iii) For self-service beverages, calorie declarations must be accompanied by the term “fluid ounces” and, if applicable, the description of the cup size (e.g., “small,” “medium”).

    (B) For food that is self-service or on display and is identified by an individual sign adjacent to the food itself where such sign meets the definition of a menu or menu board under paragraph (a) of this section, the statement required by paragraph (b)(2)(i)(B) of this section and the statement required by paragraph (b)(2)(i)(C) of this section. These two statements may appear on the sign adjacent to the food itself; on a separate, larger sign, in close proximity to the food that can be easily read as the consumer is making order selections; or on a large menu board that can be easily read as the consumer is viewing the food.

    (C) The nutrition information in written form required by paragraph (b)(2)(ii) of this section, except for packaged food insofar as it bears nutrition labeling information required by and in accordance with paragraph (b)(2)(ii) of this section and the packaged food, including its label, can be examined by a consumer before purchasing the food.

    (c) Determination of nutrient content. (1) A covered establishment must have a reasonable basis for its nutrient declarations. Nutrient values may be determined by using nutrient databases (with or without computer software programs), cookbooks, laboratory analyses, or other reasonable means, including the use of Nutrition Facts on labels on packaged foods that comply with the nutrition labeling requirements of section 403(q)(1) of the Federal Food, Drug, and Cosmetic Act and § 101.9, FDA nutrient values for raw fruits and vegetables in Appendix C of this part, or FDA nutrient values for cooked fish in Appendix D of this part.

    (2) Nutrient declarations for standard menu items must be accurate and consistent with the specific basis used to determine nutrient values. A covered establishment must take reasonable steps to ensure that the method of preparation (e.g., types and amounts of ingredients, cooking temperatures) and amount of a standard menu item offered for sale adhere to the factors on which its nutrient values were determined.

    (3) A covered establishment must provide to FDA, within a reasonable period of time upon request, information substantiating nutrient values including the method and data used to derive these nutrient values. This information must include the following:

    (i) For nutrient databases:

    (A) The name and version (including the date of the version) of the database, and, as applicable, the name of the applicable software company and any Web site address for the database. The name and version of a database would include the name and version of the computer software, if applicable;

    (B) The recipe or formula used as a basis for the nutrient declarations;

    (C)(1) Information on:

    (i) The amount of each nutrient that the specified amount of each ingredient identified in the recipe contributes to the menu item; and

    (ii) How the database was used including calculations or operations (e.g., worksheets or computer printouts) to determine the nutrient values for the standard menu items;

    (2) If the information in paragraph (c)(3)(i)(C)(1) of this section is not available, certification attesting that the database will provide accurate results when used appropriately and that the database was used in accordance with its instructions;

    (D) A detailed listing (e.g., printout) of the nutrient values determined for each standard menu item.

    (E) Any other information pertinent to the final nutrient values of the standard menu item (e.g., information about what might cause slight variations in the nutrient profile such as moisture variations);

    (F) A statement signed and dated by a responsible individual, employed at the covered establishment or its corporate headquarters or parent entity, who can certify that the information contained in the nutrient analysis is complete and accurate; and

    (G) A statement signed and dated by a responsible individual employed at the covered establishment certifying that the covered establishment has taken reasonable steps to ensure that the method of preparation (e.g., types and amounts of ingredients in the recipe, cooking temperatures) and amount of a standard menu item offered for sale adhere to the factors on which its nutrient values were determined.

    (ii) For published cookbooks that contain nutritional information for recipes in the cookbook:

    (A) The name, author, and publisher of the cookbook used;

    (B) If available, information provided by the cookbook or from the author or publisher about how the nutrition information for the recipes was obtained;

    (C) A copy of the recipe used to prepare the standard menu item and a copy of the nutrition information for that standard menu item as provided by the cookbook; and

    (D) A statement signed and dated by a responsible individual employed at the covered establishment certifying that that the covered establishment has taken reasonable steps to ensure that the method of preparation (e.g., types and amounts of ingredients in the recipe, cooking temperatures) and amount of a standard menu item offered for sale adhere to the factors on which its nutrient values were determined. (Recipes may be divided as necessary to accommodate differences in the portion size derived from the recipe and that are served as the standard menu item but no changes may be made to the proportion of ingredients used.)

    (iii) For laboratory analyses:

    (A) A copy of the recipe for the standard menu item used for the nutrient analysis;

    (B) The name and address of the laboratory performing the analysis;

    (C) Copies of analytical worksheets, including the analytical method, used to determine and verify nutrition information;

    (D) A statement signed and dated by a responsible individual, employed at the covered establishment or its corporate headquarters or parent entity, who can certify that the information contained in the nutrient analysis is complete and accurate; and

    (E) A statement signed and dated by a responsible individual employed at the covered establishment certifying that the covered establishment has taken reasonable steps to ensure that the method of preparation (e.g., types and amounts of ingredients in the recipe, cooking temperatures) and amount of a standard menu item offered for sale adhere to the factors on which its nutrient values were determined.

    (iv) For nutrition information provided by other reasonable means:

    (A) A detailed description of the means used to determine the nutrition information;

    (B) A recipe or formula used as a basis for the nutrient determination;

    (C) Any data derived in determining the nutrient values for the standard menu item, e.g., nutrition information about the ingredients used with the source of the nutrient information;

    (D) A statement signed and dated by a responsible individual, employed at the covered establishment or its corporate headquarters or parent entity, who can certify that the information contained in the nutrient analysis is complete and accurate; and

    (E) A statement signed and dated by a responsible individual employed at the covered establishment certifying that the covered establishment has taken reasonable steps to ensure that the method of preparation (e.g., types and amounts of ingredients in the recipe, cooking temperatures) and amount of a standard menu item offered for sale adhere to the factors on which its nutrient values were determined.

    (d) Voluntary registration to be subject to the menu labeling requirements—(1) Applicability. A restaurant or similar retail food establishment that is not part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items may voluntarily register to be subject to the requirements established in this section. Restaurants and similar retail food establishments that voluntarily register will no longer be subject to non-identical State or local nutrition labeling requirements.

    (2) Who may register? The authorized official of a restaurant or similar retail food establishment as defined in paragraph (a) of this section, which is not otherwise subject to paragraph (b) of this section, may register with FDA.

    (3) What information is required? Authorized officials for restaurants and similar retail food establishments must provide FDA with the following information on Form FDA 3757:

    (i) The contact information (including name, address, phone number, and email address) for the authorized official;

    (ii) The contact information (including name, address, phone number, and email address) of each restaurant or similar retail food establishment being registered, as well as the name and contact information for an official onsite, such as the owner or manager, for each specific restaurant or similar retail food establishment;

    (iii) All trade names the restaurant or similar retail food establishment uses;

    (iv) Preferred mailing address (if different from location address for each establishment) for purposes of receiving correspondence; and

    (v) Certification that the information submitted is true and accurate, that the person submitting it is authorized to do so, and that each registered restaurant or similar retail food establishment will be subject to the requirements of section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act and this section.

    (4) How to register. Authorized officials of restaurants and similar retail food establishments who elect to be subject to requirements in section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act can register by visiting http://www.fda.gov/food/ingredientspackaginglabeling/labelingnutrition/ucm217762.htm. FDA has created a form (Form 3757) that contains fields requesting the information in paragraph (d)(3) of this section and made the form available at this Web site. Registrants must use this form to ensure that complete information is submitted.

    (i) Information should be submitted by email by typing complete information into the form (PDF), saving it on the registrant's computer, and sending it by email to [email protected]

    (ii) If email is not available, the registrant can either fill in the form (PDF) and print it out (or print out the blank PDF and fill in the information by hand or typewriter), and either fax the completed form to 301-436-2804 or mail it to FDA, CFSAN Menu and Vending Machine Registration, White Oak Building 22, Rm. 0209, 10903 New Hampshire Ave., Silver Spring, MD 20993.

    (5) When to renew the registration. To keep the establishment's registration active, the authorized official of the restaurant or similar retail food establishment must register every other year within 60 days prior to the expiration of the establishment's current registration with FDA. Registration will automatically expire if not renewed.

    (e) Signatures. Signatures obtained under paragraph (d) of this section that meet the definition of electronic signatures in § 11.3(b)(7) of this chapter are exempt from the requirements of part 11 of this chapter.

    (f) Misbranding. A standard menu item offered for sale in a covered establishment shall be deemed misbranded under sections 201(n), 403(a), 403(f) and/or 403(q) of the Federal Food, Drug, and Cosmetic Act if its label or labeling is not in conformity with paragraph (b) or (c) of this section.

    [79 FR 71253, Dec. 1, 2014]
    [FR Doc. 2016-28367 Filed 11-22-16; 8:45 am] BILLING CODE 1301-00-D
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 101 Food Labeling CFR Correction In Title 21 of the Code of Federal Regulations, parts 100 to 169, revised as of April 1, 2016, on pages 43 and 44, in § 101.9, paragraphs (j)(1)(i), (2) introductory text, (3) introductory text, and the first sentence of (j)(4) are revised to read as follows. And, on page 50, the effective date note at the end of § 101.9 is removed.
    § 101.9 Nutrition labeling of food.

    (j) * * *

    (1)(i) Food offered for sale by a person who makes direct sales to consumers (e.g., a retailer) who has annual gross sales made or business done in sales to consumers that is not more than $500,000 or has annual gross sales made or business done in sales of food to consumers of not more than $50,000, Provided, That the food bears no nutrition claims or other nutrition information in any context on the label or in labeling or advertising. Claims or other nutrition information subject the food to the provisions of this section, § 101.10, or § 101.11, as applicable.

    (2) Except as provided in § 101.11, food products that are:

    (3) Except as provided in § 101.11, food products that are:

    (4) Except as provided in § 101.11, foods that contain insignificant amounts of all of the nutrients and food components required to be included in the declaration of nutrition information under paragraph (c) of this section, Provided, That the food bears no nutrition claims or other nutrition information in any context on the label or in labeling or advertising. * * *

    [FR Doc. 2016-28363 Filed 11-22-16; 8:45 am] BILLING CODE 1301-00-D
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 101 Food Labeling CFR Correction In Title 21 of the Code of Federal Regulations, parts 100 to 169, revised as of April 1, 2016, on page 50, § 101.10 is revised to read as follows:.
    § 101.10 Nutrition labeling of restaurant foods whose labels or labeling bear nutrient content claims or health claims.

    Nutrition labeling in accordance with § 101.9 shall be provided upon request for any restaurant food or meal for which a nutrient content claim (as defined in § 101.13 or in subpart D of this part) or a health claim (as defined in § 101.14 and permitted by a regulation in subpart E of this part) is made, except that information on the nutrient amounts that are the basis for the claim (e.g., “low fat, this meal provides less than 10 grams of fat”) may serve as the functional equivalent of complete nutrition information as described in § 101.9. For the purposes of this section, restaurant food includes two categories of food. It includes food which is served in restaurants or other establishments in which food is served for immediate human consumption or which is sold for sale or use in such establishments. It also includes food which is processed and prepared primarily in a retail establishment, which is ready for human consumption, which is of the type described in the previous sentence, and which is offered for sale to consumers but not for immediate human consumption in such establishment and which is not offered for sale outside such establishment. For standard menu items that are offered for sale in covered establishments (as defined in § 101.11(a)), the information in the written nutrition information required by § 101.11(b)(2)(ii)(A) will serve to meet the requirements of this section. Nutrient levels may be determined by nutrient databases, cookbooks, or analyses or by other reasonable bases that provide assurance that the food or meal meets the nutrient requirements for the claim. Presentation of nutrition labeling may be in various forms, including those provided in § 101.45 and other reasonable means.

    [79 FR 71253, Dec. 1, 2014]
    [FR Doc. 2016-28364 Filed 11-22-16; 8:45 am] BILLING CODE 1301-00-D
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 330 [Docket No. FDA-2016-N-0543] RIN 0910-AH30 Food and Drug Administration Review and Action on Over-the-Counter Time and Extent Applications AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is amending its nonprescription (over-the-counter or OTC) drug regulations. This final rule supplements the time and extent application (TEA) process for OTC drugs by establishing timelines and performance metrics for FDA's review of non-sunscreen TEAs, as required by the Sunscreen Innovation Act (SIA). It also amends the existing TEA process to include filing determination and withdrawal provisions to make the TEA process more efficient.

    DATES:

    This rule is effective December 23, 2016.

    ADDRESSES:

    For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this final rule, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Kristen Hardin, Center for Drug Evaluation and Research (CDER), Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, 240-402-4246, [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Executive Summary A. Purpose and Coverage of the Final Rule B. Summary of the Major Provisions of the Final Rule C. Legal Authority D. Costs and Benefits II. Table of Abbreviations and Acronyms Commonly Used in This Document III. Background A. Need for the Regulation/History of This Rulemaking B. Summary of Comments on the Proposed Rule C. General Overview of the Final Rule IV. Legal Authority V. Comments on the Proposed Rule and FDA Response A. Introduction B. Description of General Comments and FDA Response C. Specific Comments on Timelines for FDA Review and Action and FDA Response D. Specific Comments on the Filing Determination and FDA Response E. Technical Amendments VI. Effective Date VII. Economic Analysis of Impacts A. Introduction B. Summary VIII. Analysis of Environmental Impact IX. Paperwork Reduction Act of 1995 X. Federalism XI. Reference I. Executive Summary A. Purpose and Coverage of the Final Rule

    This final rule implements part of the SIA (Pub. L. 113-195) enacted November 26, 2014, by establishing timelines and related performance metrics for the review of certain submissions under FDA's regulation governing TEAs, which is codified in § 330.14 (21 CFR 330.14). The TEA regulation sets forth criteria and procedures by which OTC drugs initially marketed in the United States after the OTC Drug Review began in 1972 and OTC drugs without any U.S. marketing experience can be considered in the OTC drug monograph system. Section 586F(b) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360fff-6(b)), which was added by the SIA, requires FDA to issue regulations providing for the timely and efficient review of submissions under the TEA regulation, including establishing: (1) Reasonable timelines for reviewing and acting on such submissions for non-sunscreen OTC active ingredients and other conditions (non-sunscreen TEA conditions) and (2) measurable metrics for tracking the extent to which such timelines are met.

    FDA is also amending the TEA regulation to make the TEA process more efficient and predictable for product sponsors, consumers, and FDA by adding filing determination requirements and criteria, and by addressing the withdrawal of consideration of TEAs and safety and effectiveness data submissions.

    The timelines and metrics in this final rule apply to non-sunscreen TEA conditions. FDA is addressing timelines for review of sunscreen active ingredients and other related topics regarding sunscreens separately, under other provisions of the SIA.

    B. Summary of the Major Provisions of the Final Rule

    This final rule implements the SIA requirements for non-sunscreen TEAs by establishing timelines for FDA to review and take action on non-sunscreen TEA conditions. Timelines are provided for each stage of the TEA process and are intended to be reasonable while taking into consideration FDA public health priorities and available resources. The timelines established by this rule provide sponsors, other interested persons, and the public with consistent time frames for expected Agency action.

    This rule also implements the SIA requirements for non-sunscreen TEAs by establishing measurable metrics that FDA will use for tracking the extent to which the timelines set forth in the regulations are met. The Agency anticipates that, among other potential benefits, making the metrics publicly available will improve transparency by providing sponsors, other interested persons, and the public with information that will enable them to quickly find out the number of TEAs that have been submitted to FDA. Over time, these measurements may also assist the Agency with resource planning and use.

    The applicability of these metric and timeline provisions are generally limited to non-sunscreen TEAs submitted after the enactment of the SIA.

    The final rule also amends the existing TEA regulation to provide for FDA to make filing determinations regarding safety and effectiveness data submissions for eligible TEA conditions. This additional procedural step provides early notification on whether submissions are sufficiently complete to permit a substantive review by FDA.

    In addition, the rule amends the existing TEA regulation to include a provision regarding the withdrawal of consideration of TEAs, and safety and effectiveness data submissions. The withdrawal provision provides clarity on the status of TEAs, and safety and effectiveness data submissions that are no longer being pursued, so that FDA does not spend resources on these submissions.

    Finally, the final rule adds certain definitions, and makes minor conforming and clarifying changes to the existing TEA regulation.

    C. Legal Authority

    This rule is issued under FDA's authority to regulate OTC drug products under the FD&C Act (see sections 201, 501, 502, 503, 505, 510, 586F, and 701(a) of the FD&C Act (21 U.S.C. 321, 351, 352, 353, 355, 360, 360fff-6, and 371(a))). As stated in the Federal Register of January 23, 2002 (67 FR3060), in which the final rule establishing the TEA process was published, submission of a new drug application (NDA) has been required before marketing a new drug since passage of the FD&C Act in 1938 (21 U.S.C. 355). To market a new drug, the drug must first be approved under section 505 of the FD&C Act. Section 701(a) of the FD&C Act authorizes FDA to issue regulations for the efficient enforcement of the FD&C Act. FDA's regulations in part 330 describe the conditions for a drug to be considered GRASE and not misbranded. If a drug meets each of the conditions contained in part 330, as well as each of the conditions contained in any applicable OTC drug monograph, and other applicable regulations, it is considered generally recognized as safe and effective (GRASE) and not misbranded, and is not required by FDA to obtain approval under section 505 of the FD&C Act.

    In addition, section 586F of the FD&C Act requires FDA to issue regulations providing for the timely and efficient review of certain submissions under the TEA regulation in § 330.14. Section 586F of the FD&C Act specifically requires these regulations to include timelines and metrics associated with the review of those submissions under the TEA regulation. This rule adds timeline and metrics provisions that are intended to implement section 586F of the FD&C Act.

    D. Costs and Benefits

    We expect that the final rule will make the TEA process more efficient and predictable, and improve communication between FDA, sponsors, and other interested persons. Sponsors and other interested persons may benefit from knowing whether additional data are needed and what optimal steps to take to receive a GRASE determination, and we will be able to bring resolution to TEA conditions. However, we do not know the monetary value of added predictability.

    We expect the rule will create a minimal burden on persons that submit safety and effectiveness data submissions, primarily when they send a letter to request a meeting with us. Thus, we anticipate no increase in annual recurring costs for either small or large sponsors or other interested persons. We expect the six current sponsors of non-sunscreen TEAs covering conditions that have been found eligible to be considered for inclusion in the OTC drug monograph system will incur one-time costs to read and understand the rule.

    We also estimate sponsors will submit two additional TEAs annually, and each of these sponsors will also spend time reading and understanding the rule. The present value of the total costs over 10 years ranges from about $17,000 to $35,000 with a 7 percent discount rate and from about $19,000 to $38,000 with a 3 percent discount rate. With a discount rate of 7 percent and 3 percent, we estimate that on average affected sponsors will incur less than $150 of annualized costs per year.

    II. Table of Abbreviations and Acronyms Commonly Used in This Document Abbreviation/acronym What it means ANDA Abbreviated New Drug Application. FDA Food and Drug Administration. FD&C Act Federal Food, Drug, and Cosmetic Act. GRASE Generally Recognized as Safe and Effective. HHS U.S. Department of Health and Human Services. NDA New Drug Application. NOE Notice of Eligibility. NPRM Notice of Proposed Rulemaking. OMB Office of Management and Budget. OTC Over-the-Counter. PRA Paperwork Reduction Act. SIA Sunscreen Innovation Act of 2014. TEA Time and Extent Application. III. Background A. Need for the Regulation/History of This Rulemaking 1. Overview of the OTC Drug Monograph System

    The OTC drug monograph system was established to evaluate the safety and effectiveness of all OTC drug products marketed in the United States before May 11, 1972, that were not covered by NDAs and all OTC drug products covered by “safety” NDAs that were marketed in the United States before enactment of the 1962 drug amendments to the FD&C Act. In 1972, FDA began its OTC Drug Review to evaluate OTC drugs by therapeutic categories or classes (e.g., sunscreens, antacids), rather than on a product-by-product basis, and to develop “conditions” under which classes of OTC drugs are GRASE and not misbranded.

    FDA publishes these conditions in the Federal Register in the form of OTC drug monographs, which consist primarily of active ingredients, labeling, and other general requirements. Final monographs for OTC drugs that are GRASE and not misbranded are codified in part 330. Manufacturers of drugs that meet each of the conditions contained in part 330, including each of the conditions contained in any applicable OTC drug monograph, and other applicable regulations, need not seek FDA clearance before marketing.

    2. Overview of the TEA Process Prior to This Rulemaking

    Initially, OTC drug conditions not marketed in the United States prior to the inception of the OTC Drug Review were not eligible for review under the OTC drug monograph process. The TEA process, established by regulations finalized in 2002 (§ 330.14), expanded the scope of the OTC Drug Review. A “condition,” for purposes of the TEA regulation, is an active ingredient or botanical drug substance (or a combination of active ingredients or botanical drug substances), dosage form, dosage strength, or route of administration marketed for a specific OTC use. The TEA process provides a potential pathway for OTC conditions, including new active ingredients or dosage forms that previously had no U.S. marketing history or that were marketed in the United States after the OTC Drug Review began, to be marketed under an OTC drug monograph.

    Active ingredients and other conditions that satisfy the TEA eligibility requirements are subject to the same safety, effectiveness, and labeling standards that apply to other conditions under the OTC monograph process (see § 330.14(g)). The TEA regulation requires multistep, notice-and-comment rulemaking procedures before an active ingredient or other condition is added to an OTC drug monograph.

    The TEA process begins with the submission of a TEA containing data documenting the OTC marketing history of the active ingredient, combination of active ingredients, or other condition(s) (e.g., a new dosage strength for an active ingredient already included in an OTC drug monograph). FDA reviews the application and determines whether the sponsor's marketing data establish that the condition or conditions have been marketed to a material extent and for a material time, as set forth in the TEA regulation's eligibility requirements. If the condition is not found eligible, FDA will send a letter to the sponsor explaining why the condition was not found acceptable. If the marketing data satisfy the TEA regulation's eligibility criteria, FDA publishes a notice of eligibility (NOE) in the Federal Register announcing that the active ingredient or other condition is being considered for inclusion in an OTC drug monograph and calling for submissions of safety and efficacy data for the proposed OTC use.

    We note that although a TEA is the application regarding the time and extent of marketing, which leads to an eligibility determination (resulting in publication of an NOE or a letter of ineligibility), references to TEAs or applications (including in the SIA) sometimes encompass FDA's review of the condition's eligibility and the GRASE determination for the condition. Thus, these references may be used to mean the TEA itself, the safety and effectiveness data submission, FDA's GRASE determination, associated order or rulemaking actions, or all of these. In this rule and preamble, the terms “TEA” and “safety and effectiveness data submission” are used, where appropriate, to describe the two distinct submissions under the TEA regulation. However, the term “TEA process” may be used when referring to one or more actions under the TEA regulation.

    If, after FDA reviews the safety and effectiveness data, the Agency initially determines that the active ingredient or other condition is GRASE, it will publish a notice of proposed rulemaking (NPRM) to include the condition in an appropriate OTC drug monograph.

    If the condition is initially determined not to be GRASE, FDA will inform the sponsor and other interested persons that submitted data of its decision by letter, and will include the letter in the relevant public docket (§ 330.14(g)(4)). The Agency will also publish a NPRM to include the condition in § 310.502 (21 CFR 310.502). The sponsor and other interested persons will have an opportunity to submit comments and new data on FDA's initial determination and NPRM (§ 330.14(g)(5)). After evaluation of any additional data submitted, FDA will either issue a final rule or a new NPRM, if necessary, in the Federal Register.

    3. The Sunscreen Innovation Act (SIA)

    In November 2014, Congress passed the SIA to supplement the TEA process with regard to both sunscreen and non-sunscreen OTC drug products. Section 586F of the FD&C Act was added by the SIA and only applies to TEAs for drugs other than nonprescription sunscreen active ingredients or combinations of nonprescription sunscreen active ingredients (see sections 586 and 586F of the FD&C Act (21 U.S.C. 360fff and 360fff-6) as amended by the SIA). For FDA review of non-sunscreen TEA conditions, section 586F includes two main requirements. The first requirement (see section 586F(a) of the FD&C Act), which is generally outside the scope of this rule, is regarding a framework and timelines for review of certain eligible TEA conditions pending before the date of enactment of the SIA. The second general requirement (see section 586F(b) of the FD&C Act) is that FDA issue a regulation that includes: (1) Timelines for review of new non-sunscreen TEA conditions (with certain exceptions noted in sections 586F(a)(1) and (3)) and (2) measurable metrics for tracking the extent to which the timelines are met. Accordingly, FDA published a proposed rule on April 4, 2016, to address both timelines and metrics, as required by the SIA.

    4. Brief Summary of the Proposed Rule

    As described in the proposed rule “Food and Drug Administration Review and Action on Over-the-Counter Time and Extent Applications” (81 FR 19069, April 4, 2016) (Proposed Rule), FDA had determined that with regard to non-sunscreen TEAs, the best way to both address the statutory requirements of the SIA and to make certain FDA-initiated modifications to the TEA process set forth in § 330.14 was to: (1) Propose a new section (§ 330.15) that is specific to non-sunscreen TEA conditions and establishes the SIA-required timelines and metrics and (2) amend § 330.14 with regard to process improvements for TEAs for all OTC drugs (such as providing format and content criteria for a filing determination and addressing withdrawal of consideration).

    We refer readers to the preamble of the Proposed Rule for additional information about the development of the Proposed Rule. The Agency requested public comments on the Proposed Rule, and the comment period closed June 3, 2016.

    B. Summary of Comments on the Proposed Rule

    We received comments from a trade association and several individual citizens. The comments were generally supportive. In addition to a few general comments, we received comments specific to the proposed timeline provision as well as on the format and content of the safety and effectiveness submissions.

    C. General Overview of the Final Rule

    This rule finalizes the Proposed Rule. The following subsections give a brief summary of the proposed provisions we are finalizing, including a summary of the key changes between the proposed and final rules.

    1. Applicability (§ 330.15(a))

    We proposed that a condition in a TEA submitted under § 330.14 would be subject to the timelines for FDA review and action except for: (1) A sunscreen active ingredient or a combination of sunscreen active ingredients, or other conditions for sunscreen ingredients or (2) a non-sunscreen active ingredient or combination of non-sunscreen active ingredients, and other conditions for such ingredients submitted in a TEA under § 330.14 before November 27, 2014, subject to section 586F(a)(1)(C) of the FD&C Act. The exceptions are based on provisions of the SIA, including section 586F(b) of the FD&C Act, which directs the Agency to issue regulations establishing timelines for drugs other than nonprescription sunscreen active ingredients or combinations of nonprescription active ingredients. For additional discussion on the development of this provision see the preamble (81 FR 19069 at 19073) of the Proposed Rule.

    We are finalizing this provision without change.

    2. Timelines for FDA Review and Action (§ 330.15(c))

    In accordance with section 586F(b) of the FD&C Act, FDA proposed timelines for each of the various stages of the TEA process for conditions within the scope of the rule. The proposed timelines for each stage take into consideration factors set forth under the SIA. For additional discussion on the development of this provision, see the preamble (81 FR 19069 at 19073 to 19077) of the Proposed Rule.

    We are finalizing this provision with one clarifying change to acknowledge that, with respect to the 90-day timeline for FDA to issue a filing determination, a safety and effectiveness data submission can be submitted by a person other than the sponsor of the TEA.

    3. Metrics (§ 330.15(b))

    Section 586F(b) of the FD&C Act requires FDA to establish measurable metrics for tracking the extent to which the timelines set forth in the regulations are met. We proposed to maintain a publicly available posting of metrics for the review of TEAs and safety and effectiveness data submissions submitted under § 330.14 that are subject to the timelines, and update the posting annually. The proposed metrics, when publically posted, should provide sponsors and the public with information that will enable them to quickly ascertain the number of TEAs that have been submitted to FDA, and the Agency's performance in meeting the proposed timelines. For additional discussion on the development of this provision, see the preamble (81 FR 19069 at 19077) of the Proposed Rule.

    We are finalizing this provision without change.

    4. Definitions (§ 330.14(a))

    We proposed additional definitions that, in general, are intended to clarify the beginning or ending of the timelines for FDA review and action. We proposed to add these definitions to § 330.14 instead of § 330.15 because § 330.14 describes the TEA process to which these definitions apply. For additional discussion on the development of this provision, see the preamble (81 FR 19069 at 19077 to 19078) of the Proposed Rule.

    We are finalizing this provision with clarifying changes to the definition of “Date of filing” and “Safety and effectiveness data submission” to acknowledge that a safety and effectiveness data submission can be submitted by a person other than the sponsor of the TEA.

    5. Filing Determination (§ 330.14(j))

    We proposed certain filing determination requirements to help improve the content and format of a safety and effectiveness data submission. We also proposed timelines related to these proposed new requirements and proposed processes that apply whether the submission is accepted for filing, refused, or filed over protest. The proposed requirement and related timelines were developed, in part, to provide a clear pathway for the Agency to indicate when a submission does not contain the information necessary for a complete review and what additional information is needed. For additional discussion on the development of this provision, see the preamble (81 FR 19069 at 19078 to 19079) of the Proposed Rule.

    We are finalizing the provision with several changes to the Proposed Rule for clarification purposes (for additional details on the changes, see section V.E):

    • Throughout the provision, we have made clarifying changes to acknowledge that a safety and effectiveness data submission can be submitted by a person other than the sponsor of the TEA.

    • With respect to § 330.14(j)(2), we are clarifying in this final rule that data submitted after a submission has been filed will be reviewed as part of the proposed rulemaking if there is adequate time before the NPRM will publish, or if there is not adequate time, the data will be evaluated as comments to the NPRM.

    • In § 330.14(j)(3), we are changing the proposed term “informal conference” to “meeting” to use consistent terminology with the SIA.

    • In both § 330.14(j)(2) and (3), we clarify that a copy of the notice will be posted to the docket.

    • In § 330.14(j)(3), we originally proposed the process that a person that submitted a safety and effectiveness data submission must follow to request that FDA file a submission over protest. To avoid potential ambiguity, we are modifying § 330.14(j)(3) to clarify that the submitter cannot request to file over protest without first having a meeting with FDA. In addition, this final rule clarifies the status of the submission and the TEA condition once FDA has refused to file a submission.

    6. Withdrawal of Consideration of a TEA or Safety and Effectiveness Data Submission (§ 330.14(k))

    We proposed to add a withdrawal provision to new § 330.14(k). The proposed provision allowed a sponsor to request withdrawal of consideration of a TEA or safety and effectiveness data submission. In addition, we also proposed (§ 330.14(k)(1)(ii)) that inaction by a sponsor in certain circumstances may be deemed by FDA as a withdrawal of consideration. The proposed § 330.14(k)(2) also included a provision that FDA would give notice to the sponsor before deeming the submission withdrawn from consideration to give the sponsor an opportunity to provide an update and request FDA not withdraw the submission. Another proposed provision, § 330.14(k)(3), provided that the notice of withdrawal of consideration would be posted to the docket. In addition, we proposed in § 330.14(k)(4) that if the TEA or safety and effectiveness data submission is deemed withdrawn, the timelines under § 330.15(c) and the metrics under § 330.15(b) no longer apply. The provisions were proposed in part to enable the Agency to better allocate resources by providing a process for the Agency to suspend work on TEAs or safety and effectiveness data submissions that are no longer being pursued by the sponsor. For additional discussion on the development of these provisions see the preamble (81 FR 19069 at 19079 to 19080) of the Proposed Rule.

    We are finalizing the provision with several clarifying changes to the Proposed Rule (for additional details on the changes, see section V.E):

    • Throughout the provision, we have made clarifying changes to acknowledge that a safety and effectiveness data submission can be submitted by a person other than the sponsor of the TEA.

    • Under § 330.14(k)(1)(ii), we no longer include that a sponsor's failure to act on a submission is a reason for FDA's deeming the submission withdrawn because until the sponsor or other interested person acts and files a TEA submission or safety and effectiveness data submission, there is nothing for FDA to deem withdrawn from consideration. For example, once a notice of eligibility is issued, the TEA is no longer under consideration and the eligible condition is not deemed under consideration until a safety and effectiveness data submission is filed.

    • We have revised the proposed § 330.14(k)(2) to extend the time period to make a request that FDA not deem a submission withdrawn from consideration.

    • The final rule makes a technical change to proposed § 330.14(k)(3) to account for the situation in which an NOE for a TEA has not been issued and the TEA therefore is not in the public docket.

    • The final rule also clarifies in § 330.14(k)(3) that if FDA deems a submission withdrawn from consideration, the condition still remains eligible for consideration if an NOE was issued, and the sponsor or any interested person can pursue consideration of the condition in the future by submitting a new safety and effectiveness data submission.

    7. Minor Changes to § 330.14 for Clarity and Consistency

    We proposed minor changes to § 330.14 for clarity and consistency purposes. These changes included adding definitions to proposed new paragraph (a). We proposed several minor amendments to § 330.14(f) for clarity and for consistency with the OTC monograph regulations under § 330.10. We also revised § 330.14(f) to use terminology consistent with the new definition in § 330.14(a)(5) for “safety and effectiveness data submission” when referring to a data package submitted for an eligible TEA condition. We also proposed to add the word “feedback” prior to the word “letter” in the first sentence of § 330.14(g)(4) to use terminology consistent with the proposed new definition for “feedback letter” in § 330.14(a)(7). For additional discussion on the development of this provision, see the preamble (81 FR 19069 at 19080) of the Proposed Rule.

    We are finalizing this provision with changes to § 330.14(f) in order to clarify that a safety and effectiveness data submission can be submitted by a person other than the sponsor of the TEA.

    IV. Legal Authority

    This rule is issued under FDA's authority to regulate OTC drug products under the FD&C Act (see sections 201, 501, 502, 503, 505, 510, 586F, and 701(a) of the FD&C Act). As stated in the Federal Register of January 23, 2002, in which the final rule establishing the original TEA process was published, submission of an NDA has been required before marketing a new drug since passage of the FD&C Act in 1938 (21 U.S.C. 355). To market a new drug, the drug must first be approved under section 505 of the FD&C Act. Section 701(a) of the FD&C Act authorizes FDA to issue regulations for the efficient enforcement of the FD&C Act. FDA's regulations in part 330 describe the conditions for a drug to be considered GRASE and not misbranded. If a drug meets each of the conditions contained in part 330, as well as each of the conditions contained in any applicable OTC drug monograph, and other applicable regulations, it is considered GRASE and not misbranded, and is not required by FDA to obtain approval under section 505 of the FD&C Act.

    In addition, section 586F of the FD&C Act requires FDA to issue regulations providing for the timely and efficient review of certain submissions under the TEA regulation in § 330.14. Section 586F of the FD&C Act specifically requires these regulations to include timelines and metrics associated with the review of certain submissions under the TEA regulation. Therefore, § 330.15 adds timeline and metrics provisions that are intended to implement section 586F of the FD&C Act.

    V. Comments on the Proposed Rule and FDA Response A. Introduction

    We received three comment letters on the Proposed Rule, each containing one or more comments on one or more issues. The comments were submitted by a trade association and individual consumers. The submissions overall support the objectives of the rule. None of the comments suggested changes to specific provisions of the Proposed Rule.

    We describe and respond to the comments in sections V.B. through V.D. We have numbered each comment to help distinguish between different comments. The number assigned to each comment or comment topic is purely for organizational purposes and does not signify the comment's value or importance or the order in which comments were received.

    B. Description of General Comments and FDA Response

    (Comment 1) The comments generally support the TEA process, the establishment of timelines associated with the general steps in that process, and the proposed revisions to the TEA regulation.

    (Response 1) We appreciate the support expressed in the comments received. The TEA process is intended to provide a potential pathway for OTC conditions, including newer active ingredients that previously had no U.S. marketing history or that were marketed in the United States after the OTC Drug Review began, to be marketed under an OTC drug monograph. The associated timelines and revisions to the TEA regulation are intended to implement certain requirements in the SIA and to make the TEA process more efficient and predictable.

    C. Specific Comments on Timelines for FDA Review and Action and FDA Response

    (Comment 2) One comment stated that the explanation for the proposed timelines was clear. However, the comment suggested that additional changes to the monograph system could further streamline the projected TEA timeline.

    (Response 2) This final rule establishes timelines within the context of the general OTC monograph process, which involves rulemaking to establish general recognition of safety and effectiveness for conditions in a monograph. Because this rule is limited to the TEA process and not the overall monograph regulatory framework, changes to the OTC monograph process that in turn could affect the timelines established in this rule are outside the scope of this rulemaking.

    (Comment 3) One comment expressed concern that factors such as the format and content of the data submission, the complexity of the data, competing Agency priorities, and available Agency resources and reasonableness could delay TEA reviews and actions many years beyond the established timelines.

    (Response 3) As explained in the preamble to the Proposed Rule, section 586F(b) of the FD&C Act provides that the timelines for review of non-sunscreen TEA conditions shall: (1) Reflect FDA public health priorities (including potential public health benefits of including additional drugs in the OTC drug monograph system), (2) take into consideration the resources available for carrying out such public health priorities and the relevant review processes and procedures, and (3) be reasonable, taking into account the required consideration of priorities and resources. We accordingly took these factors into consideration when establishing timelines. Furthermore, we determined that instead of setting multiple timelines for submissions of varying content, complexity, and format, it would be more efficient and sensible, for each stage of the TEA process, to set one general timeline for the review of non-sunscreen TEA conditions that accommodates anticipated variation among submissions. Because anticipated variation is already accounted for, FDA expects the time frames to be achievable in most circumstances.

    D. Specific Comments on the Filing Determination and FDA Response

    (Comment 4) With respect to the format and content of submissions, one comment seeks FDA guidance on the inclusion of certain information from foreign data sources for non-sunscreen active ingredients. The comment incorporated a comment that was previously submitted to FDA on its draft guidance for industry “Nonprescription Sunscreen Drug Products—Content and Format of Data Submissions To Support a GRASE Determination Under the Sunscreen Innovation Act” 1 (nonprescription sunscreen content and format draft guidance) (Ref. 1).

    1 When final, this guidance will represent FDA's current thinking on this topic.

    (Response 4) As explained in the preamble to the Proposed Rule, the general advice provided in the nonprescription sunscreen content and format draft guidance (Ref. 1) may also be useful to persons preparing safety and effectiveness data submissions for non-sunscreen TEAs. The comment's request for guidance on the inclusion of certain information from foreign data sources in the safety and effectiveness data submission is outside the scope of this rulemaking. However, the Agency will consider providing additional guidance to address this issue.

    E. Technical Amendments

    The revised regulatory text includes technical amendments that we have made to the proposed provisions in order to clarify requirements. In the following subsections, we summarize the changes that are intended to clarify amendments to the relevant provisions.

    1. Clarifying That the Sponsor or Other Interested Person Can Submit a Safety and Effectiveness Data Submission

    We are finalizing §§ 330.14(a), (f), (j), (k), and 330.15(c)(2) with changes to clarify that a safety and effectiveness data submission can be submitted by a person other than the sponsor of the TEA.

    In proposed § 330.14(a), we defined the term “Sponsor” to mean the person that submitted the TEA, and we defined “Safety and effectiveness data submission” to mean, in part, a data package submitted by a sponsor. Generally we expect the person submitting the TEA (i.e., the sponsor) will submit a safety and effectiveness data submission upon issuance of a NOE. However, upon issuance of the NOE, the TEA is no longer under consideration, and the sponsor does not necessarily have to be the person that submits the safety and effectiveness data submission. Therefore, while we are not changing the definition of “Sponsor,” we are modifying the definition of “Safety and effectiveness data submission” to clarify that the submission can be submitted by a person other than the sponsor.

    Correspondingly, we are clarifying the proposed definition of “Date of filing” under § 330.14(a) and clarifying the proposed §§ 330.14(f) and 330.15(c)(2) by removing references to the “sponsor” in order to acknowledge that the safety and effectiveness data submission can be submitted by a person other than the sponsor. In addition, throughout § 330.14(j) and (k), we have removed references to the “sponsor” in the context of a safety and effectiveness data submission and replaced the term with more general terms, such as “submitter” or “person that submitted the safety and effectiveness submission,” in order to acknowledge that the safety and effectiveness data submission can be submitted by a person other than the sponsor.

    2. Filing Determination (§ 330.14(j))

    In addition to the changes noted in the previous subsection, we are finalizing the provision with several additional changes for clarification purposes.

    In § 330.14(j)(2), FDA proposed that the date of filing will begin the FDA timelines described in § 330.15(c)(3) and (4). Because FDA needs adequate time to review submitted data and the timeline for FDA to review and develop a NPRM begins as soon as the safety and effectiveness data submission has been filed, we are clarifying that data submitted after a submission has been filed will be reviewed before issuance of the NPRM if there is adequate time; otherwise, the data will be evaluated as comments to the NPRM. We note that although other submitted data submissions may be considered under the rulemaking process, they will not be subject to a filing determination. Furthermore, as with comments submitted after the comment period, any data submitted after the comment period for the NPRM may not be considered before issuance of the final rule.

    We are also adding language to both § 330.14(j)(2) and (3) to clarify that when FDA sends a notice to the person that submitted a safety and effectiveness data submission informing that person that the submission is filed or filed over protest, a copy of the corresponding notice will be posted to the docket. The posting to the docket, which is public, provides other interested persons notice that a submission is filed and FDA is beginning its review.

    Additionally, in proposed § 330.14(j)(3), we described the process for cases in which FDA refuses to file the safety and effectiveness data submission. The Proposed Rule provided that the sponsor (now submitter) can request an informal conference within 30 days of FDA notifying the sponsor that it refuses to file the submission. We are changing the term “informal conference” to “meeting” to be consistent with the SIA. In addition, the proposed provision explained that a sponsor's request to file over protest must be within 120 days of the meeting with FDA. To avoid potential ambiguity, we are modifying § 330.14(j)(3) to clarify that a sponsor (now submitter) cannot request to file over protest without first meeting with FDA.

    Finally, we are clarifying the status of a safety and effectiveness data submission that FDA has refused to file by including at the end of § 330.14(j)(3) that if FDA refuses to file a safety and effectiveness data submission and the submission is not filed over protest, then the submission is no longer deemed under consideration. If the original submitter or other interested person wishes to pursue consideration of an eligible condition at some point in the future, a new safety and effectiveness data submission must be submitted.

    3. Withdrawal of Consideration of a TEA or Safety and Effectiveness Data Submission (§ 330.14(k))

    We are finalizing the provision with several clarifying changes.

    We no longer include failure to act on a submission as a reason that FDA may deem the submission to be withdrawn from consideration, as was proposed under § 330.14(k)(1)(ii). In the preamble to the Proposed Rule, we explained there have been past instances when a NOE was issued but the sponsor never submitted safety and effectiveness data and the TEA condition remained unresolved. We proposed that a failure to act on a submission, which could include a sponsor's failure to file a safety and effectiveness data submission for a TEA-eligible condition, is one reason for FDA to deem the submission withdrawn from consideration and that, for purposes of the provision, this could include deeming a TEA-eligible condition withdrawn from consideration. However, in such a scenario when a condition is found eligible and there has not been a safety and effectiveness data submission, there is no action for FDA to take. Once a NOE is issued, the TEA is no longer under consideration. Also, since the sponsor or any other interested person is not obligated or under an established deadline for submitting a safety and effectiveness data submission, we do not consider the TEA-eligible condition to be under consideration until such a submission is filed. As a result, a sponsor's failure to act on a submission will not result in the need for FDA to deem a submission or other aspect of the TEA process withdrawn from consideration, and inclusion of this provision is not necessary.

    We also proposed in § 330.14(k)(1)(ii) that FDA may deem a submission to be withdrawn from consideration due to the sponsor's failure to respond to communications from FDA. This provision remains, and we note the reference to “communications” encompasses the notice of withdrawal under § 330.14(k)(2) and any preceding communication from FDA that the sponsor failed to respond to.

    In § 330.14(k)(2), we proposed that FDA will notify the sponsor of a submission that FDA intends to deem withdrawn under § 330.14(k)(1)(ii), and that the sponsor will then have 30 days from the date of the notice to request that FDA not withdraw consideration of the TEA or safety and effectiveness data submission. We are changing the time provided to request that FDA not withdraw consideration from 30 days to 90 days.

    We are also further revising proposed § 330.14(k)(3), in which FDA proposed that a notice of withdrawal will be posted to the docket when FDA deems a submission withdrawn from consideration. We are including a clarification that when a condition has been found eligible, even if the safety and effectiveness data submission is withdrawn, not only does the NOE remain in the public docket but the condition remains eligible for consideration, so that the condition can still be considered in the future if a new safety and effectiveness data submission is received. In addition, we are adding an exception to the notice of withdrawal being posted to the docket. Specifically, when a TEA submission is withdrawn from consideration before the issuance of an NOE, the notice of withdrawal will not be posted to the public docket and will only be sent to the sponsor because in such an instance the TEA, itself, is not on public display.

    Finally, although not a change to the Proposed Rule, we note as we discussed in the preamble to the Proposed Rule, that if a sponsor requests withdrawal of consideration of its TEA or safety and effectiveness data submission, FDA generally intends to stop its review. However, although FDA may withdraw consideration of a TEA or safety and effectiveness determination, we may determine not to withdraw or not to stop review in some cases. For example, if FDA has already issued a NPRM that tentatively determines that the active ingredient or other condition is GRASE for an OTC use or is not GRASE for an OTC use, FDA may continue the rulemaking and proceed to issue a final rule.

    VI. Effective Date

    The SIA requires that the final rule be published not less than 30 calendar days before the effective date of the regulation. Consequently, this final rule will become effective 30 calendar days after the date of the rule's publication in the Federal Register.

    Beginning on that date, the timelines and metrics set forth in this regulation will apply to the review of non-sunscreen TEAs, and safety and effectiveness data submissions to which this regulation is applicable, and any amended provisions of § 330.14 will apply to the TEA process under that regulation.

    VII. Economic Analysis of Impacts A. Introduction

    We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We have developed a comprehensive Economic Analysis of Impacts that assesses the impacts of the final rule. We believe that this final rule is not a significant regulatory action as defined by Executive Order 12866.

    The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this final rule does not impose significant new economic burdens on any entity, we certify that the final rule will not have a significant economic impact on a substantial number of small entities.

    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $146 million, using the most current (2015) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.

    In table 1, we provide the Regulatory Information Service Center/Office of Information and Regulatory Affairs Consolidated Information System accounting information.

    ER23NO16.004 B. Summary 1. Baseline Conditions

    We regulate nonprescription drug products under two primary pathways: (1) The NDA process, described in 21 CFR part 314 or (2) the nonprescription (over-the-counter or OTC) drug monograph process, described in part 330. There are important differences between these two pathways. Under the NDA process, the sponsor of an application must submit to us nonclinical and clinical data that support the safety and effectiveness of its drug product, and we must review and approve the application before the sponsor can market such product. By contrast, OTC drug monographs are regulations describing conditions (§ 330.14 defines “condition” as an active ingredient or botanical drug substance (or combination of both), dosage form, dosage strength, or route of administration marketed for a particular specific OTC use) that certain OTC drugs (such as antacids) must meet to be considered GRASE and not misbranded. In contrast with the application pathway, once a sponsor or other interested person submits safety and effectiveness data to amend a monograph (which is posted to a public docket), the data are public. Drug products that comply with an applicable OTC drug monograph and other applicable regulations may be marketed without an NDA.

    Initially, active ingredients and other conditions that were not marketed in the United States before the inception of the OTC Drug Review in 1972 were not eligible for review under the OTC drug monograph process. However, the TEA process, established by regulations finalized in 2002 (§ 330.14), expanded the scope of this OTC drug review. The TEA process offers a pathway for OTC conditions to be marketed under an OTC drug monograph. OTC conditions can include newer active ingredients that previously had no U.S. marketing history, or that were marketed in the United States after the OTC drug review began. Active ingredients and other conditions that satisfy the TEA eligibility requirements are subject to the same safety, effectiveness, and labeling standards that apply to other conditions under the OTC monograph process.

    The TEA process requires multistep, notice-and-comment rulemaking procedures before a new active ingredient or other condition is added to an OTC drug monograph. After determining that an active ingredient or other condition is eligible for consideration under the OTC monograph process, we issue a notice in the Federal Register announcing the TEA determination and requesting safety and effectiveness data for the proposed OTC use. Next, after reviewing data submitted to the docket, we issue a NPRM to either include the condition in the appropriate OTC drug monograph or, if the condition is initially determined not to be GRASE for OTC use, include it in § 310.502, which would require the sponsor to seek approval under the NDA pathway to market the condition. NPRMs regarding GRASE determinations allow for public comments and for sponsors and other interested persons to submit additional data for safety and effectiveness. If a monograph is amended, by publishing a final rule, an OTC condition that complies with the OTC monograph and the general requirements for OTC drugs may be marketed in the United States without an NDA (examples of other general requirements include requirements to comply with Current Good Manufacturing Practice, to register and list products, to use drug facts labeling).

    Although our multistep TEA process allows sponsors and other interested persons to learn about the progress of our review of a submission (for example, when an NOE is issued, and if a feedback letter is issued), there are no established timelines to review submissions or for data to be submitted. The lack of timelines can create unpredictability for interested persons because they may lack key information. For example, they may not know: (1) Whether the safety and effectiveness data submitted is sufficient or in the right format for us to conduct a substantive review; (2) when they need to submit new information; or (3) when to expect our determinations regarding eligibility or other feedback. The unpredictability in the process could result in interested persons not performing a required action within reasonable time for our review, performing unnecessary actions (examples of unnecessary actions may include collecting unnecessary or inadequate data, performing tests or studies that do not contribute to data needed by us to make a GRASE determination), or creating unnecessary effort for us and for them. Without specific timelines, persons that submit safety and effectiveness data submissions may not know whether their initial data submissions were insufficient to review, whether their data submissions were sufficient and are under review, or whether we require additional information. In addition, without specific timelines, we don't know whether interested persons intend to submit additional data or whether they do not intend to pursue a TEA condition any further.

    2. Purpose of This Rule

    This rule complies with certain mandates of the SIA enacted in November 2014. In particular, the final rule establishes timelines and metrics for review of TEAs for non-sunscreen OTC drug products. Specific timelines applicable to non-sunscreen TEA conditions will be added in a new § 330.15. The first timeline is to issue an NOE or post a letter of ineligibility to the TEA docket within 180 days of submission of a TEA. The second timeline is to issue a filing determination within 90 days of receipt of a complete safety and effectiveness data submission once the submitter has confirmed that it considers the submission to be complete. If we initially determine the active ingredient or other condition not to be GRASE, we will inform sponsors and other interested persons who submitted data within 730 days from the date of filing as defined in § 330.14(a). The next timeline is to issue a NPRM within 1,095 days from the date of filing. Lastly, we will issue a final rule regarding GRASE status within 912 days of the closing of the docket of the proposed rulemaking.

    The final rule will also amend the existing § 330.14 by: (1) Setting forth clear filing determination requirements with regard to the content and format of safety and effectiveness data submissions for TEAs and (2) addressing withdrawal of consideration of a TEA or safety and effectiveness data submission. These amendments will apply to all TEAs, and their goal is to provide early notification on whether the submissions meet the filing requirements and to provide more clarity regarding withdrawal of TEA-related submissions. The amendments in this final rule are intended to provide us with feedback from sponsors or other interested persons on whether they intend to actively pursue their submissions, and specify that we may withdraw consideration of a TEA or safety and effectiveness data submission in certain circumstances (such as at a submitter's request). Finally, this final rule also adds definitions and makes clarifying changes to the TEA regulation in § 330.14.

    The clarifications and establishment of timelines for the TEA process seek to dissipate uncertainties that may have prevented interested persons from submitting all the necessary data for us to make final GRASE determinations to existing TEA conditions that have been found to be eligible to be considered for inclusion in the OTC drug monograph system. Since the TEA review process became effective in 2002 (67 FR 3060 at 3074), we have received six TEAs for non-sunscreen active ingredients, including applications for dandruff, laxative, gingivitis, and acne products. Of these six, the sponsors for three of the TEAs have subsequently requested that the Agency withdraw consideration of the conditions that were found eligible for consideration.

    3. Benefits

    We lack data to quantify the potential benefits of this final rule. With this final rule, we expect the timelines and data submission clarifications will make the TEA process, including establishing a new OTC drug monograph, more efficient and predictable, and improve communication between us and sponsors or other interested persons. Sponsors and other interested persons may benefit from knowing whether additional data are needed and what optimal steps to take to receive a GRASE determination, and we will be able to bring resolution to TEA conditions. However, we do not know the monetary value of added predictability.

    4. Costs

    We expect this final rule will create a minimal burden on sponsors and other interested persons from the possible cost associated with sending a meeting request letter to us in the event that we refuse to file a safety and effectiveness data submission and the submitter wants to meet with us to discuss the decision, or the possible cost of calling or writing us to request that we do not withdraw consideration of a submission under § 330.14(k)(2). Therefore, we anticipate no increase in annual recurring costs for either small or large sponsors or other interested persons.

    We expect the six current sponsors will spend time reading and understanding the final rule; we estimate this task will take from about 6.5 hours to 13 hours. With an hourly wage rate of $133 including 100 percent overhead, each sponsor will incur one-time costs ranging from about $865 to $1,730. This cost range is an overestimate because most sponsors are already familiar with the rule if they read the Proposed Rule. We also estimate that we will receive 2 additional TEAs annually, and thus during a 10-year horizon we estimate potentially 20 additional applicants will spend the time to read and understand the final rule. This cost is also an overestimate because we assume that future sponsors will be different from sponsors who already have read and understood the rule. The present value of the total costs over 10 years ranges from about $17,000 to $35,000 with a 7 percent discount rate and from about $19,000 to $38,000 with a 3 percent discount rate. With a discount rate of 7 percent and 3 percent, we estimate that on average, sponsors will incur less than $150 of annualized costs per year.

    5. Impact on Small Entities

    The Regulatory Flexibility Act requires a Regulatory Flexibility Analysis unless the Agency can certify that the final rule will have no significant impact on a substantial number of small entities. The final rule will affect few entities. Moreover, we estimate one-time costs under $2,000 per entity, costs well below 0.01 percent of annual revenues for the smallest entities; thus we certify that the final rule will not have a significant economic impact on a substantial number of small entities.

    This is the full economic analysis.

    VIII. Analysis of Environmental Impact

    We have determined under 21 CFR 25.31(a) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    IX. Paperwork Reduction Act of 1995

    This final rule contains information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520). The title, description, and respondent description of the information collection provisions are shown below with an estimate of the annual reporting burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.

    Title: Additional Criteria and Procedures for Classifying Over-the-Counter Drugs as Generally Recognized as Safe and Effective and Not Misbranded—OMB Control No. 0910-0688—Revision.

    Description: The final rule amends FDA's TEA regulations to establish timelines and performance metrics for FDA's review of non-sunscreen TEAs and safety and effectiveness data submissions, as required by the SIA. FDA is making other changes to make the TEA process more efficient. Accordingly, FDA is revising the information collection currently approved under OMB control number 0910-0688 consistent with the regulations.

    FDA has OMB approval (control number 0910-0688) for the information collection in § 330.14, which specifies additional criteria and procedures by which OTC drugs that were initially marketed in the United States after the OTC Drug Review began and OTC drugs without any U.S. marketing experience may become eligible for consideration in the OTC drug monograph system.

    The final rule amends the TEA regulations in § 330.14 to make the process more efficient and to make conforming and clarifying changes. Section 330.14(j) clarifies the requirements on content and format criteria for a safety and effectiveness data submission, and provides procedures for FDA's review of the submissions and determination of whether a submission is sufficiently complete to permit a substantive review. Section 330.14(j)(3) describes the process for cases in which FDA refuses to file the safety and effectiveness data submission. Under § 330.14(j)(3), if FDA refuses to file the submission, the Agency will notify the submitter in writing, state the reason(s) for the refusal, and provide 30 days in which to submit a written request for a meeting with the Agency about whether the Agency should file the submission. A written request for a meeting is not already approved under OMB control number 0910-0688. We estimate that approximately one person that submits a safety and effectiveness data submission (“Number of Respondents” in table 2, row 1) will annually submit to FDA approximately one request for a meeting (“Total Annual Responses” in table 2, row 1), and preparing and submitting each request will take approximately 1 hour (“Average Burden per Response” in table 2, row 1).

    Under § 330.14(j)(4)(iii), the safety and effectiveness data submission must contain a signed statement that the submission represents a complete safety and effectiveness data submission and that the submission includes all the safety and effectiveness data and information available to the submitter at the time of the submission, whether positive or negative. A signed statement is not already approved under OMB control number 0910-0688. We estimate that approximately two persons (“Number of Respondents” in table 2, row 2) will annually submit to FDA approximately two signed statements as described previously (“Total Annual Responses” in table 2, row 2), and that preparing and submitting each signed statement will take approximately one hour (“Average Burden per Response” in table 2, row 2).

    Under § 330.14(k)(1), FDA, in response to a written request, may withdraw consideration of a TEA submitted under § 330.14(c) or a safety and effectiveness data submission submitted under § 330.14(f). A request that FDA withdraw consideration of a TEA or safety and effectiveness data submission is not already approved under OMB control number 0910-0688. We estimate that approximately one person that submitted a safety and effectiveness data submission (“Number of Respondents” in table 2, row 3) will annually submit to FDA approximately one request (“Total Annual Responses” in table 2, row 3), and that preparing and submitting each request will take approximately 1 hour (Average Burden per Response” in table 2, row 3).

    Under § 330.14(k)(2), a person that submitted the submission may request that FDA not withdraw consideration of a TEA or safety and effectiveness data submission. A request for FDA to not deem its submission withdrawn from consideration is not already approved under OMB control number 0910-0688. We estimate that approximately one person that submitted a TEA or safety and effectiveness data submission (“Number of Respondents” in table 2, row 4) will annually submit to FDA approximately one request (“Total Annual Responses” in table 2, row 4), and that preparing and submitting each request will take approximately two hours (“Average Burden per Response” in table 2, row 4).

    FDA estimates the burden of this information collection as follows:

    Table 2—Estimated Annual Reporting Burden 1 21 CFR Section Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total annual
  • responses
  • Average
  • burden per
  • response
  • Total hours
    330.14(j)(3)—Request for a meeting on FDA's refusal to file 1 1 1 1 1 330.14(j)(4)(iii)—Signed statement that the submission is complete 2 1 2 1 2 330.14(k)(1)—Request for FDA to withdraw consideration of a TEA or safety and effectiveness data submission 1 1 1 1 1 330.14(k)(2)—Request for FDA to not deem its submission withdrawn from consideration 1 1 1 2 2 Total 6 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

    The information collection provisions of this final rule have been submitted to the OMB for review, as required by section 3507(d) of the PRA. FDA will publish a subsequent notice in the Federal Register announcing OMB's decision to approve, modify, or disapprove the information collection provisions in this final rule. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    X. Federalism

    We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. Section 4(a) of the Executive order requires agencies to “construe . . . a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” The sole statutory provision giving preemptive effect to the final rule is section 751 of the FD&C Act (21 U.S.C. 379r). We have complied with all of the applicable requirements under the Executive order and have determined that the preemptive effects of this rule are consistent with Executive Order 13132.

    XI. Reference

    The following reference is on display in the Division of Dockets Management (see ADDRESSES) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at https://www.regulations.gov. FDA has verified the Web site address, as of the date this document publishes in the Federal Register, but Web sites are subject to change over time.

    1. FDA, Draft Guidance for Industry, “Nonprescription Sunscreen Drug Products: Content and Format of Data Submissions To Support a GRASE Determination Under the Sunscreen Innovation Act,” November 2015, available at http://www.fda.gov/downloads/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/UCM473772.pdf.

    List of Subjects in 21 CFR Part 330

    Over-the-counter drugs.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 330 is amended as follows:

    PART 330—OVER-THE-COUNTER (OTC) HUMAN DRUGS WHICH ARE GENERALLY RECOGNIZED AS SAFE AND EFFECTIVE AND NOT MISBRANDED 1. The authority citation for part 330 is revised to read as follows: Authority:

    21 U.S.C. 321, 351, 352, 353, 355, 360, 360fff-6, 371.

    2. Section 330.14 is amended as follows: a. Redesignate paragraph (a) as introductory text, revise the newly redesignated introductory text, and add new paragraph (a); b. Revise paragraphs (f) heading and introductory text and (g)(4); and c. Add paragraphs (j) and (k).

    The revisions and additions read as follows:

    § 330.14 Additional criteria and procedures for classifying OTC drugs as generally recognized as safe and effective and not misbranded.

    This section sets forth additional criteria and procedures by which over-the-counter (OTC) drugs initially marketed in the United States after the OTC drug review began in 1972 and OTC drugs without any U.S. marketing experience can be considered in the OTC drug monograph system. This section also addresses conditions regulated as a cosmetic or dietary supplement in a foreign country that would be regulated as OTC drugs in the United States. Section 330.15 sets forth timelines for FDA review and action.

    (a) Definitions. The definitions and interpretations contained in section 201 of the Federal Food, Drug, and Cosmetic Act and the following definitions of terms apply to this section and to § 330.15.

    (1) Botanical drug substance means a drug substance derived from one or more plants, algae, or macroscopic fungi, but does not include a highly purified or chemically modified substance derived from such a source.

    (2) Condition means an active ingredient or botanical drug substance (or a combination of active ingredients or botanical drug substances), dosage form, dosage strength, or route of administration, marketed for a specific OTC use, except as excluded in paragraph (b)(2) of this section.

    (3) Date of filing means the date of the notice from FDA stating that FDA has made a threshold determination that the safety and effectiveness data submission is sufficiently complete to permit a substantive review; or, if the submission is filed over protest in accordance with paragraph (j)(3) of this section, the date of filing is the date of the notice from FDA stating that FDA has filed the submission over protest (this date will be no later than 30 days after the request that FDA file the submission over protest).

    (4) Feedback letter means a letter issued by the agency in accordance with paragraph (g)(4) of this section that informs the sponsor and other interested persons who have submitted data under paragraph (f) of this section that a condition is initially determined not to be generally recognized as safe and effective (GRASE).

    (5) Safety and effectiveness data submission means a data package submitted by a sponsor or other interested person that includes safety and effectiveness data and information under paragraph (f) of this section and that is represented by the submitter as being a complete submission.

    (6) Sponsor means the person that submitted a time and extent application (TEA) under paragraph (c) of this section.

    (7) Time and extent application (TEA) means a submission by a sponsor under paragraph (c) of this section, which will be evaluated by the agency to determine eligibility of a condition for consideration in the OTC drug monograph system.

    (f) Safety and effectiveness data submission. The notice of eligibility will request a safety and effectiveness data submission that includes published and unpublished data to demonstrate the safety and effectiveness of the condition for its intended OTC use(s), as well as the submission of any other relevant data and views. These data will be submitted to a docket established in the Division of Dockets Management and will be publicly available for viewing at that office, except data deemed confidential under 18 U.S.C. 1905, 5 U.S.C. 552(b), or 21 U.S.C. 331(j). Data considered confidential under these provisions must be clearly identified. Any proposed compendial standards for the condition will not be considered confidential. The safety and effectiveness data submission must be sufficiently complete to be filed by the agency under paragraph (j)(2) of this section. Safety and effectiveness data and other information submitted under this paragraph are subject to the requirements in § 330.10(c), (e), and (f). The safety and effectiveness data submission must include the following:

    (g) * * *

    (4) If the condition is initially determined not to be GRASE for OTC use in the United States, the agency will inform the sponsor and other interested persons who have submitted data of its determination by feedback letter, a copy of which will be placed on public display in the docket established in the Division of Dockets Management. The agency will publish a notice of proposed rulemaking to include the condition in § 310.502 of this chapter.

    (j) Filing determination. (1) After FDA receives a safety and effectiveness data submission, the agency will determine whether the submission may be filed. The filing of a submission means that FDA has made a threshold determination that the submission is sufficiently complete to permit a substantive review.

    (2) If FDA finds that none of the reasons in paragraph (j)(4) of this section for refusing to file the safety and effectiveness data submission apply, the agency will file the submission and notify the submitter in writing. FDA will post a copy of the notice to the docket. The date of filing begins the FDA timelines described in § 330.15(c)(3) and (4). Data submitted after the date of filing will be considered before the issuance of a notice of proposed rulemaking if there is adequate time for review; otherwise, the data will be considered as comments to the proposed rule after issuance of a notice of proposed rulemaking.

    (3) If FDA refuses to file the safety and effectiveness data submission, the agency will notify the submitter in writing and state the reason(s) under paragraph (j)(4) of this section for the refusal. The submitter may request in writing, within 30 days of the date of the agency's notification, a meeting with the agency about whether the agency should file the submission, and FDA will convene the meeting within 30 days of the request. If, within 120 days after the meeting, the submitter requests that FDA file the submission (with or without correcting the deficiencies), the agency will file the safety and effectiveness data submission over protest under paragraph (j)(2) of this section, notify the submitter in writing and post a copy to the docket, and review the submission as filed. The submitter must have a meeting before requesting that FDA file the submission over protest but need not resubmit a copy of a safety and effectiveness data submission that is filed over protest. A safety and effectiveness data submission and the corresponding TEA-eligible condition are both not deemed under consideration if FDA refuses to file the safety and effectiveness data submission, and it is not filed over protest; the condition remains eligible for consideration and the sponsor or any interested person can pursue consideration of the condition in the future by submitting a new safety and effectiveness data submission.

    (4) FDA may refuse to file a safety and effectiveness data submission if any of the following applies:

    (i) The submission is incomplete because it does not contain information required under paragraph (f) of this section. If the submission does not contain required information because such information or data are not relevant to the condition, the submission must clearly identify and provide an explanation for the omission.

    (ii) The submission is not organized or formatted in a manner to enable the agency to readily determine whether it is sufficiently complete to permit a substantive review.

    (iii) The submission does not contain a signed statement that the submission represents a complete safety and effectiveness data submission and that the submission includes all the safety and effectiveness data and information available to the submitter at the time of the submission, whether positive or negative.

    (iv) The submission does not contain an analysis and summary of the data and other supporting information, organized by clinical or nonclinical area, such as clinical efficacy data, clinical safety data, clinical pharmacology, adverse event reports, animal toxicology, chemistry data, and compendial status.

    (v) The submission does not contain a supporting document summarizing the strategy used for literature searches, including search terms, sources, dates accessed, and years reviewed.

    (vi) The submission does not contain a reference list of supporting information, such as published literature, unpublished information, abstracts and case reports, and a copy of the supporting information.

    (vii) The submission includes data or information relevant for making a GRASE determination marked as confidential without a statement that the information may be released to the public.

    (viii) The submission does not contain a complete environmental assessment under § 25.40 of this chapter or fails to provide sufficient information to establish that the requested action is subject to categorical exclusion under § 25.30 or § 25.31 of this chapter.

    (ix) The submission does not contain a statement for each nonclinical laboratory study that the study was conducted in compliance with the requirements set forth in part 58 of this chapter, or, if it was not conducted in compliance with part 58 of this chapter, a brief statement of the reason for the noncompliance.

    (x) The submission does not contain a statement for each clinical investigation involving human subjects that the investigation was conducted in compliance with the institutional review board regulations in part 56 of this chapter, or was not subject to those regulations, and that the investigation was conducted in compliance with the informed consent regulations in part 50 of this chapter.

    (xi) The submission does not include financial certification or disclosure statements, or both, as required by part 54 of this chapter, accompanying any clinical data submitted.

    (k) Withdrawal of consideration. (1) Notwithstanding paragraph (g) of this section, FDA may withdraw consideration of a TEA submission or a safety and effectiveness data submission if:

    (i) The person that submitted the submission requests that its submission be withdrawn from consideration; or

    (ii) FDA deems the submission to be withdrawn from consideration due to the submitter's failure to respond to communications from FDA.

    (2) Before FDA deems a submission withdrawn under paragraph (k)(1)(ii) of this section, FDA will notify the person that submitted the submission. If, within 90 days from the date of the notice from FDA, the submitter requests that FDA not withdraw consideration of the submission, FDA will not deem the submission to be withdrawn.

    (3) If FDA withdraws consideration of a submission under paragraph (k)(1) of this section, FDA will post a notice of withdrawal to the docket, except in the case of a TEA submission that is withdrawn from consideration before issuance of a notice of eligibility, in which case, the notice of withdrawal will only be provided to the sponsor. Information that has been posted to the public docket for the condition at the time of the withdrawal (such as a notice of eligibility or a safety and effectiveness data submission that has been accepted for filing and posted to the docket) will remain in the public docket. If the condition has been found eligible through issuance of a notice of eligibility, the condition remains eligible for consideration and the sponsor or any interested person can pursue consideration of the condition in the future by submitting a new safety and effectiveness data submission.

    (4) If FDA withdraws consideration of a submission under paragraph (k)(1) of this section, the timelines under § 330.15(c) will no longer apply as of the date of withdrawal, and the submission will not be included in the metrics under § 330.15(b).

    3. Add § 330.15 to subpart B to read as follows:
    § 330.15 Timelines for FDA review and action on time and extent applications and safety and effectiveness data submissions.

    (a) Applicability. This section applies to the review of a condition in a time and extent application (TEA) submitted under § 330.14 for consideration in the over-the-counter (OTC) drug monograph system. This section does not apply to:

    (1) A sunscreen active ingredient or combination of sunscreen active ingredients, and other conditions for such ingredients; or

    (2) A non-sunscreen active ingredient or combination of non-sunscreen active ingredients, and other conditions for such ingredients submitted in a TEA under § 330.14 before November 27, 2014, subject to section 586F(a)(1)(C) of the Federal Food, Drug, and Cosmetic Act.

    (b) Metrics. FDA will maintain and update annually, a publicly available posting of metrics for the review of TEAs and safety and effectiveness data submissions that are subject to the timelines in this section. The posting will contain the following information for tracking the extent to which the timelines set forth in paragraph (c) of this section were met during the previous calendar year.

    (1) Number and percent of eligibility notices or ineligibility letters issued within 180 days of submission of a TEA;

    (2) Number and percent of filing determinations issued within 90 days of submission of a safety and effectiveness data submission;

    (3) If applicable, number and percent of feedback letters issued within 730 days from the date of filing;

    (4) Number and percent of notices for proposed rulemaking issued within 1,095 days from the date of filing;

    (5) Number and percent of final rules issued within 912 days of closing of the docket of the proposed rulemaking; and

    (6) Total number of TEAs submitted under § 330.14.

    (c) Timelines for FDA review and action. FDA will review and take an action within the following timelines:

    (1) Within 180 days of submission of a TEA under § 330.14(c), FDA will issue a notice of eligibility or post to the docket a letter of ineligibility, in accordance with § 330.14(d) and (e).

    (2) Within 90 days of submission of a safety and effectiveness data submission, in accordance with § 330.14(j), FDA will issue a filing determination. The date of filing begins the FDA timelines in paragraphs (c)(3) and (4) of this section.

    (3) Within 730 days from the date of filing, if the condition is initially determined not to be GRASE for OTC use in the United States, FDA will inform the sponsor and other interested persons who have submitted data of its determination by feedback letter in accordance with § 330.14(g)(4).

    (4) Within 1,095 days from the date of filing of a safety and effectiveness data submission, FDA will issue a notice of proposed rulemaking to either:

    (i) Include the condition in an appropriate OTC monograph(s), either by amending an existing monograph(s) or establishing a new monograph(s), if necessary; or

    (ii) Include the condition in § 310.502 of this chapter.

    (5) Within 912 days of the closing of the docket of the proposed rulemaking under paragraph (c)(4) of this section, FDA will issue a final rule.

    Dated: November 17, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-28120 Filed 11-22-16; 8:45 am] BILLING CODE 4164-01-P
    LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 381 [Docket No. 16-CRB-0016-PBR-COLA (2017)] Cost of Living Adjustment for Performance of Musical Compositions by Colleges and Universities AGENCY:

    Copyright Royalty Board, Library of Congress.

    ACTION:

    Final rule.

    SUMMARY:

    The Copyright Royalty Judges announce a cost of living adjustment (COLA) of 2% in the royalty rates that colleges, universities, and other educational institutions not affiliated with National Public Radio pay for the use of published nondramatic musical compositions in the SESAC repertory for the statutory license under the Copyright Act for noncommercial broadcasting.

    DATES:

    Effective date: January 1, 2017.

    Applicability dates: These rates are applicable to the period January 1, 2017, through December 31, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Kimberly Whittle, Attorney Advisor, by telephone at (202) 707-7658 or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    Section 118 of the Copyright Act, title 17 of the United States Code, creates a statutory license for the use of published nondramatic musical works and published pictorial, graphic, and sculptural works in connection with noncommercial broadcasting.

    On November 29, 2012, the Copyright Royalty Judges (Judges) adopted final regulations governing the rates and terms of copyright royalty payments under section 118 of the Copyright Act for the license period 2013-2017. See 77 FR 71104. Pursuant to these regulations, on or before December 1 of each year, the Judges shall publish in the Federal Register a notice of the change in the cost of living for the rate codified at § 381.5(c)(3) relating to compositions in the repertory of SESAC. The adjustment, fixed to the nearest dollar, shall be the greater of “the change in the cost of living as determined by the Consumer Price Index (all consumers, all items) [CPI-U] * * * during the period from the most recent index published prior to the previous notice to the most recent index published prior to December 1, of that year,” or 2%. 37 CFR 381.10.

    The change in the cost of living as determined by the CPI-U during the period from the most recent index published before December 1, 2014, to the most recent index published before December 1, 2016, is 1.6%.1 In accordance with 37 CFR 381.10(b), the Judges announce that the COLA for calendar year 2017 shall be 2%. Application of the 2% COLA to the current rate for the performance of published nondramatic musical compositions in the repertory of SESAC—$149 per station—results in an adjusted rate of $152 per station.

    1 On November 17, 2016, the Bureau of Labor Statistics announced that the CPI-U increased 1.6% over the last 12 months.

    List of Subjects in 37 CFR Part 381

    Copyright, Music, Radio, Television, Rates.

    Final Regulations

    In consideration of the foregoing, the Judges amend part 381 of title 37 of the Code of Federal Regulations as follows:

    PART 381—USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH NONCOMMERCIAL EDUCATIONAL BROADCASTING 1. The authority citation for part 381 continues to read as follows: Authority:

    17 U.S.C. 118, 801(b)(1), and 803.

    2. Section 381.5 is amended by revising paragraph (c)(3)(v) to read as follows:
    § 381.5 Performance of musical compositions by public broadcasting entities licensed to colleges and universities.

    (c) * * *

    (3) * * *

    (v) 2017: $152 per station.

    Dated: November 17, 2016. Suzanne M. Barnett, Chief Copyright Royalty Judge.
    [FR Doc. 2016-28178 Filed 11-22-16; 8:45 am] BILLING CODE 1410-72-P
    LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 386 [Docket No. 16-CRB-0017-SA-COLA (2017)] Cost of Living Adjustment to Satellite Carrier Compulsory License Royalty Rates AGENCY:

    Copyright Royalty Board, Library of Congress.

    ACTION:

    Final rule.

    SUMMARY:

    The Copyright Royalty Judges announce a cost of living adjustment (COLA) of 1.6% in the royalty rates satellite carriers pay for a compulsory license under the Copyright Act. The COLA is based on the change in the Consumer Price Index from October 2015 to October 2016.

    DATES:

    Effective Date: January 1, 2017.

    Applicability Dates: These rates are applicable to the period January 1, 2017, through December 31, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Kimberly Whittle, Attorney Advisor, by telephone at (202) 707-7658 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The satellite carrier compulsory license establishes a statutory copyright licensing scheme for the retransmission of distant television programming by satellite carriers. 17 U.S.C. 119. Congress created the license in 1988 and has reauthorized the license for additional five-year periods, most recently with the passage of the STELA Reauthorization Act of 2014, Public Law 113-200.

    On August 31, 2010, the Copyright Royalty Judges (Judges) adopted rates for the section 119 compulsory license for the 2010-2014 term. See 75 FR 53198. The rates were proposed by Copyright Owners and Satellite Carriers 1 and were unopposed. Id. Section 119(c)(2) of the Copyright Act provides that, effective January 1 of each year, the Judges shall adjust the royalty fee payable under Section 119(b)(1)(B) “to reflect any changes occurring in the cost of living as determined by the most recent Consumer Price Index (for all consumers and for all items) [CPI-U] published by the Secretary of Labor before December 1 of the preceding year.” Section 119 also requires that “[n]otification of the adjusted fees shall be published in the Federal Register at least 25 days before January 1.” 17 U.S.C. 119(c)(2).

    1 Program Suppliers and Joint Sports Claimants comprised the Copyright Owners while DIRECTV, Inc., DISH Network, LLC, and National Programming Service, LLC, comprised the Satellite Carriers.

    The change in the cost of living as determined by the CPI-U during the period from the most recent index published before December 1, 2015, to the most recent index published before December 1, 2016, is 1.6%.2 Application of the 1.6% COLA to the current rate for the secondary transmission of broadcast stations by satellite carriers for private home viewing—27 cents per subscriber per month—results in an unchanged rate of 27 cents per subscriber per month (rounded to the nearest cent). See 37 CFR 386.2(b)(1). Application of the 1.6% COLA to the current rate for viewing in commercial establishments—56 cents per subscriber per month—results in a rate of 57 cents per subscriber per month (rounded to the nearest cent). See 37 CFR 386.2(b)(2).

    2 On November 17, 2016, the Bureau of Labor Statistics announced that the CPI-U increased 1.6% over the last 12 months.

    List of Subjects in 37 CFR Part 386

    Copyright, Satellite, Television.

    Final Regulations

    In consideration of the foregoing, the Judges amend part 386 of title 37 of the Code of Federal Regulations as follows:

    PART 386—ADJUSTMENT OF ROYALTY FEES FOR SECONDARY TRANSMISSIONS BY SATELLITE CARRIERS 1. The authority citation for part 386 continues to read as follows: Authority:

    17 U.S.C. 119(c), 801(b)(1).

    2. Section 386.2 is amended by adding paragraphs (b)(1)(viii) and (b)(2)(viii) as follows:
    § 386.2 Royalty fee for secondary transmission by satellite carriers.

    (b) * * *

    (1) * * *

    (viii) 2017: 27 cents per subscriber per month.

    (2) * * *

    (viii) 2017: 57 cents per subscriber per month.

    Dated: November 17, 2016. Suzanne M. Barnett, Chief Copyright Royalty Judge.
    [FR Doc. 2016-28180 Filed 11-22-16; 8:45 am] BILLING CODE 1410-72-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0507; FRL-9955-49-Region 4] Air Plan Approval; FL Infrastructure Requirements for the 2010 1-hour NO2 NAAQS AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) submission, submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), on January 22, 2013, to demonstrate that the State meets certain infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2) national ambient air quality standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP. FDEP certified that the Florida SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in Florida. EPA has determined that Florida's infrastructure SIP submission, provided to EPA on January 22, 2013, satisfies certain required infrastructure elements for the 2010 1-hour NO2 NAAQS.

    DATES:

    This rule will be effective December 23, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2014-0507. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726. Mr. Richard Wong can also be reached via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background and Overview

    On January 22, 2010 (75 FR 6474, February 9, 2010), EPA promulgated a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 NO2 NAAQS to EPA no later than January 22, 2013.

    In a proposed rulemaking published on July 20, 2016 (81 FR 47094), EPA proposed to approve Florida's 2010 1-hour NO2 NAAQS infrastructure SIP submission submitted on January 22, 2013, with the exception of the elements related to the ambient air quality monitoring and data system of section 110(a)(2)(B), and the prevention of significant deterioration (PSD) permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J). EPA is not acting on Florida's January 22, 2013, infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i) and (J) for the 2010 1-hour NO2 NAAQS because it previously approved these requirements. See 80 FR 14019, March 18, 2015. Regarding section 110(a)(2)(B), EPA is not taking any action on this portion of Florida's 2010 1-hour NO2 NAAQS infrastructure SIP submission in this action and will instead address this requirement in a separate action. Also note that EPA did not propose any action regarding the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of prongs 1 and 2 of section 110(a)(2)(D)(i) because Florida's January 22, 2013 SIP submission did not address these requirements. The details of Florida's submission and the rationale for EPA's actions for this final rulemaking are explained in the July 20, 2016, proposed rulemaking. Comments on the proposed rulemaking were due on or before August 19, 2016. EPA received no adverse comments on the proposed action.

    II. Final Action

    With the exception of the elements related to the ambient air quality monitoring and data system of section 110(a)(2)(B), and the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J), EPA is taking final action to approve Florida's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS submitted on January 22, 2013. EPA is taking final action to approve Florida's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS because the submission is consistent with section 110 of the CAA.

    III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 23, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: November 7, 2016. Heather McTeer Toney, Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart K—Florida 2. In § 52.520, the table in paragraph (e) is amended by adding the entry “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS” at the end of the table to read as follows:
    § 52.520 Identification of plan.

    (e) * * *

    EPA-Approved Florida Non-Regulatory Provisions Provision State
  • effective date
  • EPA approval date Federal
  • Register notice
  • Explanation
    *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS 1/22/2013 11/23/2016 [Insert Federal Register citation] With the exception of sections: 110(a)(2)(B) Concerning ambient air quality monitoring and data system; 110(a)(2)(C) and (J) concerning PSD permitting requirements; and 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 3) concerning interstate transport requirements.
    [FR Doc. 2016-28098 Filed 11-22-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2016-0494; FRL-9955-53-Region 9] Findings of Failure To Attain the 1997 PM2.5 Standards; California; San Joaquin Valley AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) has determined that the San Joaquin Valley nonattainment area failed to attain the 1997 annual and 24-hour fine particulate matter (PM2.5) national ambient air quality standards by the December 31, 2015 “Serious” area attainment date. As a result of this determination, the State of California is required to submit a revision to the California State Implementation Plan that, among other elements, provides for expeditious attainment of the 1997 PM2.5 standards and for a five percent annual reduction in the emissions of direct PM2.5 or a PM2.5 plan precursor pollutant in the San Joaquin Valley.

    DATES:

    This rule is effective December 23, 2016.

    ADDRESSES:

    The EPA has established docket number EPA-R09-OAR-2016-0494 for this action. Generally, documents in the docket for this action are available electronically at http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps, multi-volume reports), and some may not be available in either location (e.g., confidential business information (CBI)). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Rory Mays, Air Planning Office (AIR-2), EPA Region IX, (415) 972-3227, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we”, “us,” and “our” refer to the EPA.

    Table of Contents I. Background II. Public Comments and Responses III. Final Action IV. Statutory and Executive Order Reviews I. Background

    On October 6, 2016 (81 FR 69448), the EPA proposed to determine that the San Joaquin Valley Serious nonattainment area failed to attain the 1997 PM2.5 national ambient air quality standards (NAAQS or “standards”) by the applicable attainment date of December 31, 2015, based on complete, quality-assured and certified ambient air quality data for the 2013 to 2015 monitoring period. The San Joaquin Valley PM2.5 nonattainment area (or “the Valley”) covers San Joaquin County, Stanislaus County, Merced County, Madera County, Fresno County, Tulare County, Kings County, and the valley portion of Kern County (see 40 CFR 81.305 for the precise boundaries of the PM2.5 nonattainment area).

    As discussed further in our October 6, 2016 proposed rule, in 1997, the EPA established annual and 24-hour PM2.5 standards of 15.0 micrograms per cubic meter (μg/m3) and 65 μg/m3, respectively (see 40 CFR 50.7). Since promulgation of the 1997 PM2.5 NAAQS, the EPA has established more stringent PM2.5 NAAQS but, for reasons given in the proposed rule, the 1997 PM2.5 NAAQS remain in effect in the San Joaquin Valley and represent the standards for which today's determinations are made. See pages 69448-69449 of the proposed rule.

    Our proposed rule provided background information on: The effects of exposure to elevated levels of PM2.5; the designations and classifications of the San Joaquin Valley under the Clean Air Act (CAA or “Act”) for the 1997 PM2.5 NAAQS; the plans developed by California to address nonattainment area requirements for San Joaquin Valley; the reclassification of the San Joaquin Valley from “Moderate” to “Serious” for the 1997 PM2.5 NAAQS and the related extension of the applicable attainment date to December 31, 2015; the request by California to extend the December 31, 2015 attainment date for San Joaquin Valley under CAA section 188(e); and the denial of that request by the EPA. The EPA published its final denial of the State's attainment date extension request on October 6, 2016 at 81 FR 69396.

    In our October 6, 2016 proposed rule, we also described the following: The statutory basis (i.e., CAA sections 179(c)(1) and 188(b)(2)) for the obligation on the EPA to determine whether an area's air quality meets the 1997 PM2.5 NAAQS; the EPA regulations establishing the specific methods and procedures to determine whether an area has attained the 1997 PM2.5 NAAQS; and the PM2.5 monitoring networks operated in the Valley by the California Air Resources Board and the San Joaquin Valley Unified Air Pollution Control District and related monitoring network plans. We also documented our previous review of the networks and network plans, the agencies' annual certifications of ambient air monitoring data, and our determination that 15 of the 17 monitoring sites within the Valley produced valid design values for purposes of comparison with the 1997 PM2.5 NAAQS.

    Under EPA regulations in 40 CFR part 50, section 50.7 and in accordance with Appendix N, the 1997 annual PM2.5 standards are met when the design value is less than or equal to 15.0 μg/m3, and the 1997 24-hour PM2.5 standards are met when the design value is less than or equal to 65 μg/m3. More specifically, the design value for the annual PM2.5 standards is the 3-year average of annual mean concentration, and the 1997 annual PM2.5 NAAQS are met when the design value for the annual PM2.5 standards at each eligible monitoring site is less than or equal to 15.0 μg/m3. With respect to the 24-hour PM2.5 standards, the design value is the 3-year average of annual 98th percentile 24-hour average values recorded at each eligible monitoring site, and the 1997 24-hour PM2.5 NAAQS are met when the design value for the 24-hour standards at each such monitoring site is less than or equal to 65 μg/m3.

    In our proposed rule, to evaluate whether the San Joaquin Valley attained the 1997 PM2.5 NAAQS by the December 31, 2015 attainment date, we determined the 2013-2015 design values at each of the 17 PM2.5 monitoring sites for the 1997 annual and 24-hour PM2.5 standards. See Tables 1 and 2 of our October 6, 2016 proposed rule. Based on the design values at the various sites, we found that eight sites, all in the central and southern San Joaquin Valley, did not meet the 1997 annual PM2.5 NAAQS of 15.0 μg/m3, and that four sites, all in southwestern San Joaquin Valley, did not meet the 1997 24-hour PM2.5 NAAQS of 65 μg/m3 by the December 31, 2015 attainment date. The 2015 annual design value site, i.e., the site with the highest design value based on 2013-2015 data, is the Corcoran site with a 2015 annual PM2.5 design value of 22.2 μg/m3 and a 24-hour PM2.5 design value of 79 μg/m3.

    For the San Joaquin Valley to attain the 1997 PM2.5 NAAQS by December 31, 2015, the 2015 design value (reflecting data from 2013-2015) at each eligible monitoring site in the Valley must be equal to or less than 15.0 μg/m3 for the annual standards and 65 μg/m3 for the 24-hour standards. Since several sites for each averaging period had 2015 design values greater than those values, based on quality-assured and certified data for 2013-2015, we proposed to determine that the San Joaquin Valley failed to attain the 1997 annual and 24-hour PM2.5 standards by the December 31, 2015 attainment date. With today's action, we finalize this determination.

    Finally, in our proposed rule, we described the CAA requirements that would apply if the EPA were to finalize the proposed finding of failure to attain. See our October 6, 2016 proposed rule for more information about the topics summarized above.

    II. Public Comments and Responses

    Our October 6, 2016 proposed rule provided for a 30-day comment period. During this period, we received no comments.

    III. Final Action

    Under CAA sections 179(c)(1) and 188(b)(2), and based on reasons set forth in our proposed rule and summarized above, the EPA is taking final action to determine that the San Joaquin Valley Serious nonattainment area failed to attain the 1997 annual and 24-hour PM2.5 NAAQS by the December 31, 2015 attainment date. This determination is based upon monitored air quality data from 2013 through 2015.

    As a result of this final determination, the State of California is required under CAA sections 179(d) and 189(d) to submit, by December 31, 2016, a revision to the SIP for the San Joaquin Valley. The SIP revision must, among other elements, demonstrate expeditious attainment of the standards within the time period provided under CAA section 179(d), provide for annual reduction in the emissions of PM2.5 or a PM2.5 plan precursor pollutant within the area of not less than five percent until attainment,1 demonstrate reasonable further progress, and include contingency measures. The requirement for a new attainment demonstration under CAA section 189(d) also triggers the requirement for the SIP revision for quantitative milestones under section 189(c) that are to be achieved every three years until redesignation to attainment.

    1 81 FR 58010 at 58100, 58158 (August 24, 2016). The EPA defines PM2.5 plan precursor as those PM2.5 precursors required to be regulated in the applicable attainment plan and/or nonattainment new source review program. 81 FR 58010 at 58152.

    The new attainment date is set by CAA section 179(d)(3), which relies upon section 172(a)(2) to establish a new attainment date but with a different starting point than provided in section 172(a)(2). Under section 179(d)(3), the new attainment date is the date by which attainment can be achieved as expeditiously as practicable, but no later than five years from the publication date of the final determination of failure to attain. The EPA may extend the attainment date for a period no greater than 10 years from the final determination, considering the severity of nonattainment and the availability and feasibility of pollution control measures.

    IV. Statutory and Executive Order Reviews

    This final action in and of itself establishes no new requirements; it merely documents that air quality in the San Joaquin Valley did not meet the 1997 PM2.5 standards by the CAA deadline. For that reason, this final action:

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

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

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

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

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

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

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

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

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

    In addition, this final action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP obligations discussed herein do not apply to Indian tribes and thus this action will not impose substantial direct costs on tribal governments or preempt tribal law. Nonetheless, the EPA has notified the tribes within the San Joaquin Valley PM2.5 nonattainment area of this final action.

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 23, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

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

    Dated: November 14, 2016. Alexis Strauss, Acting Regional Administrator, Region IX.

    Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.247 is amended by adding paragraph (h) to read as follows:
    § 52.247 Control strategy and regulations: Fine Particle Matter.

    (h) Determination of Failure to Attain: Effective December 23, 2016, the EPA has determined that the San Joaquin Valley Serious PM2.5 nonattainment area failed to attain the 1997 annual and 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015. This determination triggers the requirements of CAA sections 179(d) and 189(d) for the State of California to submit a revision to the California SIP for the San Joaquin Valley to the EPA by December 31, 2016. The SIP revision must, among other elements, demonstrate expeditious attainment of the 1997 PM2.5 NAAQS within the time period provided under CAA section 179(d) and that provides for annual reduction in the emissions of direct PM2.5 or a PM2.5 plan precursor pollutant within the area of not less than five percent until attainment.

    [FR Doc. 2016-28100 Filed 11-22-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 62 [Docket ID: FEMA-2016-0012] RIN 1660-AA86 National Flood Insurance Program (NFIP): Financial Assistance/Subsidy Arrangement AGENCY:

    Federal Emergency Management Agency, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Emergency Management Agency (FEMA) is issuing this final rule to remove the copy of the Financial Assistance/Subsidy Arrangement (Arrangement) and the summary of the Financial Control Plan from the appendices of the National Flood Insurance Program (NFIP) regulations. It is no longer necessary or appropriate to retain a contract, agreement, or any other arrangement between FEMA and private insurance companies in the Code of Federal Regulations.

    DATES:

    This final rule is effective December 23, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Claudia Murphy, Director, Policyholder Services Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW., Washington, DC 20472, (202) 646-2775.

    SUPPLEMENTARY INFORMATION: I. Background and Regulatory History

    The National Flood Insurance Act of 1968 (NFIA), as amended (42 U.S.C. 4001 et seq.), authorizes the Administrator of the Federal Emergency Management Agency (FEMA) to establish and carry out a National Flood Insurance Program (NFIP) to enable interested persons to purchase insurance against loss resulting from physical damage to or loss of real or personal property arising from flood in the United States. See 42 U.S.C. 4011(a). Under the NFIA, FEMA has the authority to undertake arrangements to carry out the NFIP through the facilities of the Federal government, utilizing, for the purposes of providing flood insurance coverage, insurance companies and other insurers, insurance agents and brokers, and insurance adjustment organizations, as fiscal agents of the United States. See 42 U.S.C. 4071. To this end, FEMA is authorized to “enter into any contracts, agreements, or other arrangements” with private insurance companies to utilize their facilities and services in administering the NFIP, and on such terms and conditions as may be agreed upon. See 42 U.S.C. 4081(a).

    Pursuant to this authority, FEMA enters into a standard Financial Assistance/Subsidy Arrangement (Arrangement) with private sector property insurers, also known as Write Your Own (WYO) companies, to sell NFIP flood insurance policies under their own names and adjust and pay claims arising under the Standard Flood Insurance Policy (SFIP). Each Arrangement entered into by a WYO company must be in the form and substance of the standard Arrangement, a copy of which is in Title 44 of the Code of Federal Regulations (CFR) Part 62, Appendix A. See 44 CFR 62.23(a). Since the primary relationship between the Federal government and WYO companies is one of a fiduciary nature (that is, to ensure that any taxpayer funds are appropriately expended), FEMA established “A Plan to Maintain Financial Control for Business Written Under the Write Your Own Program,” also known as the “Financial Control Plan.” See 42 U.S.C. 4071; 44 CFR 62.23(f), Part 62, App. B. To ensure financial and statistical control over the NFIP, as part of the Arrangement, WYO companies agree to adhere to the standards and requirements in the Financial Control Plan.

    On May 23, 2016, FEMA published a proposed rule (81 FR 32261) proposing to remove the copy of the Arrangement in 44 CFR part 62, Appendix A, and the summary of the Financial Control Plan in 44 CFR part 62, Appendix B. In addition, FEMA proposed to make conforming amendments to remove citations to these appendices in 44 CFR 62.23.

    FEMA proposed to remove the Arrangement from the NFIP regulations because it is no longer necessary to include a copy of the Arrangement in the CFR. FEMA originally included the Arrangement in the CFR to inform the public of the procedural details of the WYO Program. See 50 FR 16236 (April 25, 1985). There are now more efficient ways to inform the public of the procedural details of the WYO Program, and after more than 30 years of operation, the public is more familiar with the procedural details of the WYO Program and the flood insurance provided through WYO companies. Further, the NFIA does not require FEMA to include a copy of the Arrangement in the CFR. See 42 U.S.C. 4081. Finally, it is inappropriate to codify in regulation a contract, agreement, or other arrangement between FEMA and private insurance companies.

    With the removal of the copy of the Arrangement from the NFIP regulations, FEMA and its industry partners can have flexibility to make operational adjustments and corrections to the Arrangement more quickly and efficiently. Although the rulemaking process plays an important role in agency policymaking, when this process is not required or necessary, the requirement to undergo rulemaking can unnecessarily slow down the operation of the NFIP by FEMA and its industry partners and can result in the use of alternate, less than ideal measures that result in business and operational inefficiencies.

    FEMA also proposed to remove the summary of the Financial Control Plan in Appendix B, because this information is contained in either FEMA's Financial Control Plan,1 or in 44 CFR Section 62.23. Reprinting these requirements elsewhere in the CFR is duplicative and unnecessary.

    1See National Flood Insurance Program, The Write Your Own Program Financial Control Plan Requirements and Procedures (1999), http://bsa.nfipstat.fema.gov/manuals/fcp99jc.pdf (last accessed April 8, 2016).

    Finally, FEMA proposed to make conforming amendments to the language in 44 CFR 62.23 where FEMA references Appendix A and Appendix B of 44 CFR part 62, because those appendices will be removed.

    II. Public Comments on the Proposed Rule

    FEMA received five comments in response to the proposed rule, one from a WYO company (Allstate/FEMA-2016-0012-0003), one from a member of the public, two from organizations representing agents and brokers (Independent Insurance Agents & Brokers of America, Inc./FEMA-2016-0012-0004; National Association of Professional Insurance Agents/FEMA-2016-0012-0005), and one collective comment from four organizations representing insurance companies (The American Insurance Association (AIA), The Financial Services Roundtable (FSR), The National Association of Mutual Insurance Companies (NAMIC), The Property and Casualty Insurers Association of America (PCIAA)/FEMA-2016-0012-0006). FEMA responds to these comments below.

    With this regulatory action, FEMA finalizes the proposed rule, with one revision made in response to the comments received. FEMA is adding a requirement to 44 CFR 62.23 that FEMA must publish the Arrangement in the Federal Register at least 6 months prior to the effective date of the Arrangement.

    A. Notice to WYO Companies of Changes to the Arrangement

    Under the terms of the Arrangement, FEMA must publish in the Federal Register each year, and make available to the WYO companies, the terms for subscription or re-subscription to the Arrangement. WYO companies must notify FEMA of their intent to re-subscribe or not re-subscribe within 30 days of the publication of the notice in the Federal Register. See Financial Assistance/Subsidy Arrangement, Article V(B).

    FEMA received two comments requesting FEMA to provide WYO companies sufficient notice prior to the effective date of a revised Arrangement (FEMA-2012-2016-0003/FEMA-2012-2016-0006). The commenters said this would provide time for WYO companies to assess the impact to their business (FEMA-2012-2016-0003), and provide time for the marketplace to assess the impact of changes, thereby allowing WYO companies to determine what, if any, changes would be necessary (FEMA-2012-2016-0006). They stated that this would also provide WYO companies time to decide whether to continue in or withdraw from the NFIP (FEMA-2012-2016-0003; FEMA-2012-2016-0006). One commenter suggested this notice be at least 1 year prior to the effective date of the revised Arrangement (FEMA-2012-2016-0003).

    The current Arrangement does not specify how far in advance FEMA must publish the Arrangement in the Federal Register. Typically, FEMA publishes the Arrangement in the Federal Register in August, and the Arrangement becomes effective October 1.2 As a result, WYO companies typically have less than a month to decide whether to subscribe, because they must notify FEMA of their intent to re-subscribe or not re-subscribe within 30 days of the publication of the Arrangement in the Federal Register. WYO companies commented that they accepted this short timeline because they knew that they would receive notice of substantive changes to the Arrangement as part of the notice-and-comment rulemaking process. (FEMA-2016-0012-0006).

    2See, e.g., 81 FR 51460 (Aug. 4, 2016).

    FEMA agrees it should provide sufficient notice to WYO companies prior to the effective date of a revised Arrangement. Therefore, FEMA is adding a requirement to paragraph (a) of Section 63.23 which states that each year, FEMA must publish the Arrangement at least 6 months before the effective date of the Arrangement. FEMA adds this 6-month notice requirement to the NFIP regulations to provide the WYO companies time to assess the impact of any changes to the Arrangement, including whether to re-subscribe. In addition, by placing this requirement in the CFR, FEMA will preserve certainty and protect the ability of WYO companies to adjust to any changes to the Arrangement. FEMA believes the 6-month notice provision is an appropriate balance between the 1-year notice proposed by the commenter, and the language of the current Arrangement, which does not specify how much notice FEMA must provide WYO companies, other than it must publish it each year.

    Much like how WYO companies need time to adjust to changes to the Arrangement, FEMA needs time to evaluate the need for changes to the Arrangement. A 6-month notice period will enable FEMA, working with WYO companies, to incorporate lessons learned from the performance of the previous year's Arrangement into the next year's Arrangement. With a 1-year notice period, FEMA would have to publish the Arrangement for the next Arrangement Year the same day the current year's Arrangement takes effect. Accordingly, if stakeholders requested a change to the Arrangement based on experience for the current year, FEMA could not implement the change until nearly two years later. A 1-year notice period would also hinder FEMA's ability, in partnership with WYO companies, to make these operational adjustments and corrections to the Arrangement more quickly and efficiently, which is one of the stated purposes of this rule.

    FEMA believes the 6-month notice provision is appropriate because it aligns with the amount of notice FEMA typically provides when it makes changes, for example, through bulletins announcing program changes or changes to the Flood Insurance Manual. Finally, FEMA believes the notice provision provides flexibility to both FEMA and WYO companies, because the 6-month notice is the minimum notice; FEMA may provide more notice than 6 months as necessary.

    In addition to providing notice in the Federal Register 6 months prior to the effective date of the Arrangement, FEMA will continue to engage WYO companies, as it does currently, before it makes any changes to the Arrangement.

    B. Uniformity of the Arrangement After Removal From the CFR

    Two commenters stated that removing the copy of the Arrangement from the NFIP regulations might lead to significant variation among agreements executed between FEMA and the various WYO companies, including disparity in the obligations and expectations between entities not party to, but affected by, the Arrangement (FEMA-2016-0012-0003; FEMA-2016-0012-0006). Currently, 44 CFR 62.23(a) requires that arrangements between the NFIP and private insurance companies as part of the WYO Program be in the “form and substance” of the copy of the Arrangement found in Appendix A of Part 62. This final rule maintains this requirement. However, the rule no longer requires that the copy of the Arrangement be found in the CFR. As a result, FEMA will continue to enter into the same standard Arrangement with each WYO company or other insurer. Any changes FEMA makes to the Arrangement will be uniformly reflected in each arrangement entered into by WYO companies in a particular year.

    C. Publication in the CFR or the Federal Register as a Condition of Participation

    One commenter stated that in 1983, as a condition of private insurance companies returning to the NFIP, FEMA agreed to propose and implement the Arrangement through the Federal Register so that it could not be changed quickly (FEMA-2016-0012-0003). The commenter stated that the current regulatory structure creates an incentive for FEMA to work with the WYO companies to avoid surprises, which promotes the sharing of information and helps prevent unintended consequences. A second commenter stated that the condition of the return of the private insurance companies to the NFIP in 1983 was that the Arrangement would be codified in the CFR (FEMA-2016-0012-0006). The second commenter echoed the statement of the first commenter, stating that since 1983, both FEMA and the companies operate in an atmosphere of trust and certainty, as the regulatory process ensures that any issues or proposed changes will be adequately aired before implementation. The second commenter stated that if FEMA removes the Arrangement from the CFR, FEMA must provide a clear, consistently followed, and easily enforced alternative notice requirement.

    FEMA is not aware of an agreement between FEMA and WYO companies that, as a condition of the WYO companies returning to the flood program, FEMA agreed to place the Arrangement in the appendices of the NFIP regulations. The WYO Program began in 1983, and FEMA added a copy of the WYO Arrangement to the appendices of the NFIP regulations in 1985 for the stated purpose of informing the public of the procedural details of the WYO Program. See 50 FR 16236 (April 25, 1985).

    Two commenters mentioned FEMA's past failure to provide sufficient notice of the Arrangement offer prior to the new Arrangement year (FEMA-2016-0012-0003 and FEMA-2016-0012-0006). Article V.B of the Arrangement requires that a WYO company currently subject to the Arrangement inform FEMA of its intent to re-subscribe or not re-subscribe within 30 days of receiving the offer for the upcoming Arrangement Year. The provision is intended to help FEMA determine whether a current WYO company intends to continue participating or if they intend to not participate again, thus triggering the transition process described in Article V.C. No other similar deadlines or other timelines exist in statute, regulation, or in the Arrangement.

    In practice, the Article V.B requirement has led FEMA to aim to provide the annual offer more than 30 days prior to the beginning of the next Arrangement Year to ensure clear program continuity. FEMA believes that the addition of the 6-month notice requirement in the Federal Register provides a clearer timeline going forward and will give WYO companies much greater notice before deciding whether to subscribe for the upcoming Arrangement Year.

    Although FEMA is removing the copy of the Arrangement from the NFIP regulations, FEMA is committed to maintaining an atmosphere of trust and certainty with WYO companies. As discussed, FEMA is adding language to the NFIP regulations in Section 63.23(a) providing that each year, FEMA will publish the Arrangement in the Federal Register at least 6 months before the effective date of the Arrangement. However, FEMA intends to work with WYO companies through the NFIP's Industry Management Branch well before publication of the Arrangement in the Federal Register. FEMA believes that the 6-month notice requirement and ongoing collaboration efforts will encourage a more responsive Arrangement-modification process than what is possible through the formalities of the notice-and-comment rulemaking process.

    D. Applicability of Government Contract Laws to the Arrangement

    One commenter asked whether WYO companies would be subject to government contract laws if FEMA takes the Arrangement out of the regulatory process and WYO companies sign individual contracts with FEMA (FEMA-2016-0012-0003).

    Since 1983, the first year of the WYO program, FEMA has not utilized contracting to effectuate its arrangement with the WYO companies and it has no intention of doing so in the future.

    The NFIA authorizes FEMA to “enter into any contracts, agreements, or other arrangements” with private insurance companies to utilize their facilities and services in administering the NFIP, and on such terms and conditions as may be agreed upon. 42 U.S.C. 4081(a) (emphasis added). FEMA interprets section 4081(a) as distinguishing “contracts” from “agreements” and “other arrangements.” Accordingly, FEMA has relied upon section 4081(a)'s authority to enter into appropriate arrangements with private insurance companies.

    On these grounds, FEMA has never utilized a contracting mechanism for the arrangements entered into between private insurance companies and FEMA as part of the WYO program. As this rule only changes the manner in which the Arrangement is published, FEMA does not intend to alter the Agency's longstanding interpretation of the NFIA and does not foresee any changes to the legal status of arrangements between FEMA and WYO companies.

    E. Judicial Deference to FEMA's Interpretation of the Arrangement

    One commenter noted that while the NFIA does not require the Arrangement to be codified in the CFR and be subject to public notice and comment, it has been so since the Arrangement's inception, and as a result, FEMA is entitled to the highest Chevron3 deference in any judicial challenges to its interpretations of the NFIA under the Administrative Procedure Act. The commenter stated that once the Arrangement is removed from the CFR, FEMA would be entitled to only weaker Skidmore4 deference, and that undoubtedly future judicial challenges to FEMA's interpretations of the Arrangement will raise the fact that FEMA sponsored the Arrangement's removal from the CFR and understood the negative impact on the deference given to its interpretations (FEMA-2016-0012-0006).

    3Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984).

    4Skidmore v. Swift & Co., 323 U.S. 134 (1944).

    FEMA acknowledges the commenter's concern. However, FEMA believes that the effects of this change will be minimal given that the Arrangement is a largely technical document that does little to interpret or expand upon statute. Rather, the NFIP's regulations, particularly 44 CFR part 62, contain the substantive policies and statutory interpretations relevant to the WYO Program. FEMA does not expect the level of deference owed to these regulations to change due to this rule.

    F. Notice to and Involvement of Non-WYO Companies

    Three commenters expressed concern that by removing the Arrangement from the rulemaking process, interested persons not a party to the Arrangement will not have an opportunity to comment on proposed changes (FEMA-2016-0012-0003; FEMA-2016-0012-0004; FEMA-2016-0012-0006). One of these commenters stated that the removal of the Arrangement would prejudice third-party stakeholders (FEMA-2016-0012-0006). The commenter suggested that FEMA establish an alternative mechanism that would allow for meaningful stakeholder and public consultation.

    Another commenter stated that the removal of the Arrangement would exclude independent insurance agents from the NFIP purchasing process at an unacceptable detriment to consumers, and that independent insurance agents, through their interactions with consumers, play a pivotal role in educating property owners about their flood insurance purchasing options and providing information vital to the NFIP's current and potential future policy holders (FEMA-2016-2012-0005). This commenter pointed out how the notice of proposed rulemaking stated that removing the Arrangement and the summary of the Financial Control Plan from regulation would keep the Arrangement between FEMA and WYO companies, and thus FEMA's position seemed to be that excluding “the multitude of others involved in the program would improve the complex NFIP process.” The commenter noted that in reality, consumers depend on the wisdom, experience, and access to information provided by independent insurance agents in navigating the program. The commenter acknowledged that the Arrangement is technically between FEMA and the WYO companies, but asserted that other stakeholders including independent insurance agents and members of the public, while not technically direct parties to the contract, are equally affected by the terms of the Arrangement and therefore must be included in any discussions about changes to it. The commenter pointed out that while the notice of proposed rulemaking asserts that removing the Arrangement would allow FEMA and its “industry partners” to be flexible in negotiating changes to the Arrangement, FEMA should be aware that its “industry partners” include more than just the WYO companies.

    This commenter expressed “grave concerns” about the appearance of a lack of transparency that would be engendered in the removal of the Arrangement and the summary of the Financial Control Plan, and that NFIP stakeholders and members of the public who hope to see the NFIP reauthorized and improved over the next 18 months will be shut out of any changes being made to these documents if they are removed from regulation, and the essential input the stakeholders and public provide in the regulatory process would be lost. The commenter referred to FEMA's statement in the notice of proposed rulemaking that FEMA has carried out the regulatory process 21 times when seeking changes to the Arrangement, and the regulatory process is necessary and vital to the credibility of both FEMA as a Federal agency and the NFIP as a Federal program.

    This commenter noted how, although the notice of proposed rulemaking characterized the removal of the Arrangement as nonsubstantive, FEMA's “description of the benefits of the removal belies FEMA's intent to make substantive changes to the Arrangement upon its removal from regulation.” The commenter stated that once removed from the CFR, changes to the Arrangement would no longer be subject to the valuable input of many parties affected by the terms of the Arrangement, such as independent agents, consumers, adjusters, State insurance regulators, and others.

    A third commenter echoed this commenter's concerns that the flexibility and efficiencies that may be gained by removing the Arrangement from the rulemaking process will compromise the current transparent process where interested persons such as adjusters, consumers, or insurance agents who are not a party to the Arrangement but are impacted by the Arrangement are afforded an opportunity to comment on proposed changes (FEMA-2016-0004). This commenter stated that although the notice of proposed rulemaking stated that FEMA will continue to post the Arrangement online and in the Federal Register, it did not provide information on how the Arrangement negotiation process is intended to work, including how interested persons who are not a party to the Arrangement but impacted by it can comment on proposed changes or participate in the negotiation process. The commenter asked that FEMA continue to provide an avenue for interested persons to be informed and involved when changes to the Arrangement are considered.

    As discussed, FEMA enters into arrangements with insurance companies to utilize their facilities and services in administering the NFIP, and on such terms and conditions as may be agreed upon. See 42 U.S.C. 4081(a). These insurance companies are fiscal agents of the United States, and through the terms of the Arrangement, sell NFIP flood insurance policies under their own names and adjust and pay claims arising under the SFIP. See 42 U.S.C. 4071. As discussed in the proposed rule, FEMA is removing the copy of the Arrangement from the NFIP regulations, because the NFIA does not require FEMA to include a copy of the Arrangement in the CFR and it is inappropriate to codify in regulation a contract, agreement, or other arrangement between FEMA and private insurance companies.

    While FEMA appreciates the input of other stakeholders such as adjusters, consumers, and insurance agents, FEMA does not believe it is necessary to establish a formal alternative mechanism to allow for stakeholder and public consultation on the Arrangement. All members of the public have opportunities to comment on proposed rulemakings affecting the NFIP. Such regulations reflect the overarching policies and structures of the NFIP.

    In addition to comments made as part of a rulemaking, FEMA encourages the public to comment on any other aspect of the NFIP. The NFIP Office of the Flood Insurance Advocate provides an excellent avenue for voicing comments, questions, or concerns. Members of the public can contact the Office via email at [email protected] Members of the public can also send inquiries to Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW., Washington, DC 20472.

    G. Consistency Within the NFIP

    Two commenters stated the current structure, with the copy of the Arrangement in the NFIP regulations, helps to promote consistent policies, procedures, and claims handling, and helps to shield FEMA from political pressures (FEMA-2016-2012-0003; FEMA-2016-2012-0006). FEMA believes the NFIP regulations, including the SFIP, help to promote consistent policies and claims handling. The copy of the Arrangement in the NFIP regulations is a copy of an arrangement between FEMA and private insurance companies acting as fiscal agents of the United States. As such, FEMA believes removing a copy of the Arrangement from the CFR will not have an impact on NFIP policies, procedures, and claims handling. The public will still have an opportunity to comment on proposed changes to the NFIP, including claims handling, whenever FEMA makes changes to its NFIP regulations.

    H. Technical Changes

    One commenter asked whether FEMA intended to repeal any portion of 44 CFR Section 63.23(a), which requires the Arrangement to be in the form and substance of the standard arrangement, a copy of which is included in Appendix A (FEMA-2016-2012-0003). In the proposed rule, FEMA proposed to remove reference to Appendix A in paragraph (a) of Section 62.23, because FEMA was proposing to remove Appendix A. As a result, FEMA will remove reference to Appendix A in the last sentence of paragraph (a) of Section 62.23 which will then read: “Arrangements entered into by WYO companies or other insurers under this subpart must be in the form and substance of the standard arrangement, titled `Financial Assistance/Subsidy Arrangement.' ”

    I. Comments Outside the Scope of the Rulemaking

    FEMA received two comments outside the scope of this rulemaking. One comment was on an individual's observation of a flood event, which is outside the scope of this rulemaking (FEMA-2016-2012-0002). Another comment recommended changes to the existing Arrangement (FEMA-2016-2012-0006). As noted in this final rule, FEMA is adding a requirement to the regulations that FEMA will publish the Arrangement in the Federal Register at least 6 months before the effective date of the Arrangement. FEMA will continue to engage WYO companies, as it does currently, before it makes any changes to the Arrangement. In accordance with the process in the current Arrangement, FEMA published notice for the Fiscal Year 2017 Arrangement on August 4, 2016 (81 FR 51460), but FEMA will consider the commenter's recommendations for future possible revisions to the Arrangement.

    III. Regulatory Analysis A. Executive Order 12866, as Amended, Regulatory Planning and Review; Executive Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this rule.

    FEMA is issuing a final rule removing Appendix A and B from Part 62 of 44 CFR. These Appendices contain a copy of the WYO Financial Assistance/Subsidy Arrangement (Arrangement) and a summary of the “Plan to Maintain Financial Control for Business Written Under the Write Your Own Program” (Financial Control Plan), respectively. In addition, FEMA makes conforming amendments to remove citations to these appendices in 44 CFR 62.23.

    Since 1983, FEMA has entered into a standard Arrangement with WYO companies to sell NFIP insurance policies under their own names and adjust and pay SFIP claims.5 Since 1985, FEMA has included a copy of the Arrangement in the CFR. In order to maintain the Arrangement, FEMA has undertaken rulemaking approximately 21 times to update the copy of the Arrangement in the regulations. The NFIA does not require FEMA to place the Arrangement in the CFR. Accordingly, undergoing such rulemakings is an unnecessary requirement.

    5 As of August 2016, 73 private property or casualty insurance companies participate in the Write Your Own program. Federal Emergency Management Agency, Write Your Own Flood Insurance Company List, http://www.fema.gov/wyo_company (last accessed August 25, 2016).

    FEMA is removing the copy of the Arrangement in 44 CFR part 62, Appendix A, because the NFIA does not require FEMA to include a copy of the Arrangement in the CFR. Therefore, its inclusion is no longer necessary. In 1985, FEMA added a copy of the Arrangement to the regulations to inform the public of the procedural details of the WYO Program. However, since that time, there have been technological advances for disseminating information to the public, and there are now more efficient ways to inform the public of the procedural details of the WYO Program. For example, FEMA now posts a copy of the Arrangement on its Web site. This serves the purpose of promoting awareness and disseminating program information, without needing to go through the rulemaking process. This rulemaking does not impose any changes to the current Arrangement with WYO companies. As such, FEMA believes there will not be any costs imposed on participating WYO companies because of this final rule.

    FEMA received a public comment highlighting that “circumventing” the rulemaking process could permit FEMA to more easily make changes to the Arrangement. Changes to the Arrangement would not necessarily occur more frequently or be any more impactful in nature than they had been thus far. The pattern of changes seen in the history of the Arrangement, with relatively frequent minor changes and the occasional substantive adjustment, is expected to continue into the future and will not change due to this rule. FEMA will continue to enter into the Arrangement with WYO companies, and make available the Arrangement, as well as the terms for subscription or re-subscription, through Federal Register notice. FEMA will also publish the Arrangement at least 6 months prior to it becoming effective.

    One of the benefits associated with this final rule is enhanced flexibility for FEMA and WYO companies to make operational adjustments to the Arrangement more quickly and efficiently in order to be more responsive to the needs of WYO companies and the operation of the NFIP. FEMA received two public comments requesting that FEMA provide WYO companies notice prior to the effective date of a revised Arrangement. FEMA agrees it should provide notice to the WYO companies and will publish the Arrangement in the Federal Register at least 6 months before the effective date of the Arrangement. This 6-month notice requirement will provide the marketplace time to assess the impact of any changes to the Arrangement, including whether to re-subscribe. FEMA believes that the primary benefits will be reinforced as FEMA, working with WYO companies, is able to make operational adjustments and corrections to the Arrangement more quickly and efficiently incorporating lessons learned from the performance of the previous year's Arrangement into the next year's Arrangement. These revisions, both the removal from the CFR as well as the 6- month advance notice, will preserve certainty, maintain transparency, and protect the ability of WYO companies to adjust to any changes to the Arrangement.

    As discussed in the proposed rule, although the rulemaking process plays an important role in agency policymaking, when this process is not required or necessary, the requirement to undergo rulemaking can unnecessarily slow down the operation of the NFIP and can result in the use of alternate, less than ideal measures that result in business and operational inefficiencies. The elimination of the administrative burden that accompanies repeated updates to the CFR and the use of alternative, less than ideal measures are an additional benefit. FEMA believes there will be no economic impact associated with implementing the final rule.

    Additionally, FEMA will remove a summary of the Financial Control Plan. FEMA removed the plan itself in 1985 thus FEMA does not anticipate any economic impacts from removing the summary.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires agency review of proposed and final rules to assess their impact on small entities. When an agency promulgates a final rule under 5 U.S.C. 553, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency must prepare a final regulatory flexibility assessment (FRFA) or have the head of the agency certify pursuant to 5 U.S.C. 605(b) that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. Having conducted and published an Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule, and having received no public comments on that analysis, FEMA does not believe this final rule will have a significant economic impact on a substantial number of small entities.

    NFIA authorizes FEMA to “enter into any contracts, agreements, or other arrangements” with private insurance companies to utilize their facilities and services in administering the NFIP, and on such terms and conditions as may be agreed upon. See 42 U.S.C. 4081. Pursuant to this authority, FEMA enters into a standard Arrangement with private sector property insurers, also known as WYO companies, to sell NFIP flood insurance policies under their own names and adjust and pay claims arising under the policy. Since the primary relationship between the Federal government and WYO companies is one of a fiduciary nature, FEMA established the Financial Control Plan. The NFIA does not require FEMA to include a copy of the Arrangement or a summary of the Financial Control Plan in the CFR.

    “Small entity” is defined in 5 U.S.C. 601. The term “small entity” can have the same meaning as the terms “small business”, “small organization” and “small governmental jurisdiction.” Section 601(3) defines a “small business” as having the same meaning as “small business concern” under Section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) defines a “small organization” as any not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operation. Section 601(5) defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000. No small organizations or governmental jurisdictions participate in the WYO Program and therefore will not be affected.

    The Small Business Administration (SBA) stipulates in its size standards 6 the largest an insurance firm that is “for profit” may be and still be classified as a “small entity.” The small business size standards for North American Industry Classification System (NAICS) code 524126 (direct property and casualty insurance carriers) is 1,500 employees. The size standard for the four remaining applicable codes of 524210 (Insurance Agencies and Brokerages), 524113 (Direct Life Insurance Carriers), 524292 (Third Party Administration of Insurance and Pension Funds) and 524128 (Other Direct Insurance) is $7.0 million in revenue as modified by the SBA, effective February 26, 2016.

    6 U.S. Small Business Administration, Table of Small Business Size Standards, February 26, 2016. https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.

    This final rule directly affects all WYO companies. There are currently 73 companies participating in the WYO Program; these 73 companies are subject to the terms of the Arrangement and the standards and requirements in the Financial Control Plan. FEMA researched each WYO company to determine the NAICS code, number of employees, and revenue for the individual companies. FEMA used the open-access database, www.manta.com, as well as www.cortera.com to find this information for the size determination. Of the 73 WYO companies, FEMA found a majority of 50 firms were under code 524210 (Insurance Agencies and Brokerages), of which 19 firms or 38 percent were found to be small (with only one lacking full data but presumed to be small). The second largest contingent of 13 firms were under code 524126 (direct property and casualty insurance carriers), of which 9 firms or 69 percent were found to be small (with only one missing data points but presumed to be small). Of the other three aforementioned industry codes, 524113, 524292 and 524128, there was one firm under each and none were small. Finally, six firms were missing industry classifications, and FEMA believes that all but one are likely to be small. In total, we found that 33 of the 73 companies are below these thresholds, and therefore will be considered small entities. Consequently, small entities comprise 45 percent of participating companies.

    FEMA believes that the final rule will impose no direct cost on any participating company because it is removing a copy of the Arrangement and a summary of the Financial Control Plan from the CFR, and is not making substantive changes to the Arrangement or the Financial Control Plan itself.

    During the proposed rule public comment period, FEMA did not receive any comments discussing the IRFA. Pursuant to the RFA (5 U.S.C. 605 (b)), the administrator of FEMA hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities. Although a substantial number of these small entities will be affected by the final rule, none of these entities will be significantly impacted.

    C. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. The final rule will not result in such an expenditure, and thus preparation of such a statement is not required.

    D. National Environmental Policy Act of 1969 (NEPA)

    Under the National Environmental Policy Act of 1969 (NEPA), as amended, 42 U.S.C. 4321 et seq. an agency must prepare an environmental assessment and environmental impact statement for any rulemaking that significantly affects the quality of the human environment. FEMA has determined that this rulemaking does not significantly affect the quality of the human environment and consequently has not prepared an environmental assessment or environmental impact statement. Although rulemaking is a major Federal action subject to NEPA, the list of exclusion categories within DHS Instruction 023-01-001-01 includes a categorical exclusion for rules that are of a strictly administrative or procedural nature (A3). This is a rulemaking related to an administrative function. An environmental assessment will not be prepared because a categorical exclusion applies to this rulemaking and no extraordinary circumstances exist.

    E. Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA), as amended, 44 U.S.C. 3501-3520, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the agency obtains approval from the Office of Management and Budget (OMB) for the collection and the collection displays a valid OMB control number. See 44 U.S.C. 3506, 3507. This final rule does not call for a new collection of information under the PRA. The removal of the Arrangement from the regulation will not impact any existing information collections in that it would not substantively change any of the information collection requirements, because the information collection requirements still exist in the regulations. The existing information collections listed include citations to 44 CFR part 62 Appendices A and B. FEMA will update these citations in the next information collection renewal cycle. FEMA will continue to expect WYO companies to comply with each of the information collection requirements associated with the WYO Program.

    The collections associated with this regulation are as follows: (1) OMB Control Number 1660-0038, Write Your Own Company Participation Criteria, 44 CFR 62 Appendix A, which establishes the criteria to return to or participate in the WYO Program; (2) OMB control number 1660-0086, the National Flood Insurance Program—Mortgage Portfolio Protection Program (MPPP), 44 CFR part 62.23 (l)(2) and Appendix B, which is a program lenders can use to bring their mortgage loan portfolios into compliance with flood insurance purchase requirements; and (3) OMB control number 1660-0020, WYO Program, 44 CFR 62.23 (f) and Appendix B, the Federal Insurance and Mitigation Administration program that requires each WYO company to submit financial data on a monthly basis into the National Flood Insurance Program's Transaction Record Reporting and Processing Plan (TRRPP) system as referenced in 44 CFR 62.23(h)(4). Part 62 still requires each of these collections. The removal of the Arrangement from the regulation will not impact these information collections because the existing information collections cover requirements in the regulations, not requirements in the Appendices.

    F. Privacy Act/E-Government Act

    Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must determine whether implementation of a regulation will result in a system of records. A record is any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his/her education, financial transactions, medical history, and criminal or employment history and that contains his/her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. See 5 U.S.C. 552a(a)(4). A system of records is a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. An agency cannot disclose any record which is contained in a system of records except by following specific procedures.

    The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires specific procedures when an agency takes action to develop or procure information technology that collects, maintains, or disseminates information that is in an identifiable form. This Act also applies when an agency initiates a new collection of information that will be collected, maintained, or disseminated using information technology if it includes any information in an identifiable form permitting the physical or online contacting of a specific individual. A Privacy Threshold Analysis was completed. This rule does not require a Privacy Impact Analysis or System of Records Notice.

    G. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

    Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 65 FR 67249, November 9, 2000, applies to agency regulations that have Tribal implications, that is, regulations that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Under this Executive Order, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulation are provided by the Federal Government, or the agency consults with Tribal officials.

    This rule does not have Tribal implications. Currently, Indian Tribal governments cannot participate in the WYO Program as WYO companies, and thus are not affected by this rule. To participate in the WYO Program, a company must be a licensed property or casualty insurance company and meet the requirements in FEMA regulations at 44 CFR 62.24.

    H. Executive Order 13132, Federalism

    Executive Order 13132, Federalism, 64 FR 43255, August 10, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

    As noted in the notice of proposed rulemaking, FEMA has determined that this rulemaking does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore does not have federalism implications as defined by the Executive Order. No commenters disagreed with this determination. This rule does not have federalism implications because participation as a WYO company is voluntary and does not affect State policymaking discretion. Moreover, States cannot participate in the WYO Program as WYO companies, and thus are not affected by this regulatory action. To participate in the WYO Program, a company must be a licensed property or casualty insurance company and must meet the requirements in FEMA regulations at 44 CFR 62.24.

    I. Executive Order 11988, Floodplain Management

    Pursuant to Executive Order 11988, each agency is required to provide leadership and take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for (1) Acquiring, managing, and disposing of Federal lands and facilities; (2) providing Federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. In carrying out these responsibilities, each agency must evaluate the potential effects of any actions it may take in a floodplain; to ensure that its planning programs and budget requests reflect consideration of flood hazards and floodplain management; and to prescribe procedures to implement the policies and requirements of the Executive Order.

    Before promulgating any regulation, an agency must determine whether the regulations will affect a floodplain(s), and if so, the agency must consider alternatives to avoid adverse effects and incompatible development in the floodplain(s). If the head of the agency finds that the only practicable alternative consistent with the law and with the policy set forth in Executive Order 11988 is to promulgate a regulation that affects a floodplain(s), the agency must, prior to promulgating the regulation, design or modify the regulation in order to minimize potential harm to or within the floodplain, consistent with the agency's floodplain management regulations and prepare and circulate a notice containing an explanation of why the action is to be located in the floodplain. The changes in this rule would not have an effect on land use, floodplain management, or wetlands.

    J. Executive Order 11990, Protection of Wetlands

    Pursuant to Executive Order 11990, each agency must provide leadership and take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities for (1) Acquiring, managing, and disposing of Federal lands and facilities; and (2) providing Federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. Each agency, to the extent permitted by law, must avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the action includes all practicable measures to minimize harm to wetlands which may result from such use. In making this finding the head of the agency may take into account economic, environmental and other pertinent factors.

    In carrying out the activities described in the Executive Order, each agency must consider factors relevant to a proposal's effect on the survival and quality of the wetlands. Among these factors are: Public health, safety, and welfare, including water supply, quality, recharge and discharge; pollution; flood and storm hazards; and sediment and erosion; maintenance of natural systems, including conservation and long term productivity of existing flora and fauna, species and habitat diversity and stability, hydrologic utility, fish, wildlife, timber, and food and fiber resources; and other uses of wetlands in the public interest, including recreational, scientific, and cultural uses. The changes in this rule would not have an effect on land use or wetlands.

    K. Executive Order 12898, Environmental Justice

    Pursuant to Executive Order 12898, —Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994, as amended by Executive Order 12948, 60 FR 6381, February 1, 1995, FEMA incorporates environmental justice into its policies and programs. The Executive Order requires each Federal agency to conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that those programs, policies, and activities do not have the effect of excluding persons from participation in programs, denying persons the benefits of programs, or subjecting persons to discrimination because of race, color, or national origin.

    This rulemaking will not have a disproportionately high or adverse effect on human health or the environment. Therefore, the requirements of Executive Order 12898 do not apply to this rule.

    L. Congressional Review of Agency Rulemaking

    Under the Congressional Review of Agency Rulemaking Act (CRA), 5 U.S.C. 801-808, before a rule can take effect, the Federal agency promulgating the rule must submit to Congress and to the Government Accountability Office (GAO) a copy of the rule, a concise general statement relating to the rule, including whether it is a major rule, the proposed effective date of the rule, a copy of any cost-benefit analysis, descriptions of the agency's actions under the RFA and the Unfunded Mandates Reform Act, and any other information or statements required by relevant executive orders.

    FEMA will send this rule to the Congress and to GAO pursuant to the CRA. The rule is not a major rule within the meaning of the CRA. It will not have an annual effect on the economy of $100,000,000 or more, it will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

    List of Subjects in 44 CFR Part 62

    Claims, Flood insurance, and Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Federal Emergency Management Agency amends 44 CFR Chapter I as follows:

    PART 62—SALE OF INSURANCE AND ADJUSTMENT OF CLAIMS 1. The authority citation for part 62 continues to read as follows: Authority:

    42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

    2. Amend § 62.23 by: a. Removing the last sentence of paragraph (a) and adding two sentences in its place; b. Revising the second sentence of paragraph (f); c. Revising paragraph (i)(1); and d. Revising the last sentence of paragraph (l)(2).

    The revisions read as follows:

    § 62.23 WYO companies authorized.

    (a) * * * Arrangements entered into by WYO companies or other insurers under this subpart must be in the form and substance of the standard arrangement, titled “Financial Assistance/Subsidy Arrangement.” Each year, at least six months before the effective date of the “Financial Assistance/Subsidy Arrangement,” FEMA must publish in the Federal Register and make available to the WYO companies the terms for subscription or re-subscription to the “Financial Assistance/Subsidy Arrangement.”

    (f) * * * In furtherance of this end, the Federal Insurance Administrator has established “A Plan to Maintain Financial Control for Business Written Under the Write Your Own Program.”

    (i) * * *

    (1) WYO companies will adjust claims in accordance with general company standards, guided by NFIP Claims manuals. The Arrangement provides that claim adjustments shall be binding upon the FIA.

    (l) * * *

    (2) * * * Participating WYO companies must also maintain evidence of compliance with paragraph (l)(3) of this section for review during the audits and reviews required by the WYO Financial Control Plan.

    Appendix A to Part 62 [Removed] 3. Remove Appendix A to Part 62. Appendix B to Part 62 [Removed] 4. Remove Appendix B to Part 62. Dated: November 17, 2016. W. Craig Fugate, Administrator, Federal Emergency Management Agency.
    [FR Doc. 2016-28224 Filed 11-22-16; 8:45 am] BILLING CODE 9110-11-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 160620545-6999-02] RIN 0648-XE696 Atlantic Highly Migratory Species; 2017 Atlantic Shark Commercial Fishing Season AGENCY:

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

    ACTION:

    Final rule; fishing season notification.

    SUMMARY:

    This final rule establishes the opening date for all Atlantic shark fisheries, including the fisheries in the Gulf of Mexico and Caribbean. This final rule also establishes the quotas for the 2017 fishing season based on over- and/or underharvests experienced during 2016 and previous fishing seasons. The large coastal shark (LCS) retention limit for directed shark limited access permit holders will start at 45 LCS other than sandbar sharks per trip in the Gulf of Mexico region and at 25 LCS other than sandbar sharks per trip in the Atlantic region. These retention limits for directed shark limited access permit holders may decrease or increase during the year after considering the specified inseason action regulatory criteria to provide, to the extent practicable, equitable fishing opportunities for commercial shark fishermen in all regions and areas. These actions could affect fishing opportunities for commercial shark fishermen in the northwestern Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea.

    DATES:

    This rule is effective on January 1, 2017. The 2017 Atlantic commercial shark fishing season opening dates and quotas are provided in Table 1 under SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910.

    FOR FURTHER INFORMATION CONTACT:

    Guý DuBeck or Karyl Brewster-Geisz at 301-427-8503.

    SUPPLEMENTARY INFORMATION:

    Background

    The Atlantic commercial shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. For the Atlantic commercial shark fisheries, the 2006 Consolidated HMS FMP and its amendments established, among other things, commercial shark retention limits, commercial quotas for species and management groups, accounting measures for under- and overharvests for the shark fisheries, and adaptive management measures such as flexible opening dates for the fishing season and inseason adjustments to shark trip limits, which provide management flexibility in furtherance of equitable fishing opportunities, to the extent practicable, for commercial shark fishermen in all regions and areas.

    On August 29, 2016 (81 FR 59167), NMFS published a rule proposing the 2017 opening dates for the Atlantic commercial shark fisheries, commercial shark fishing quotas based on shark landings information reported as of July 15, 2016, and the commercial shark retention limits for each region and sub-region. The August 2016 proposed rule (81 FR 59167; August 29, 2016) for the 2017 season contains details that are not repeated here. The comment period on the proposed rule ended on September 28, 2016.

    During the comment period, NMFS received approximately 300 written and oral comments on the proposed rule. Those comments, along with the Agency's responses, are summarized below. As further detailed in the Response to Comments section below, after considering all the comments, NMFS is opening the fishing seasons for all shark management groups except the blacktip, aggregated LCS, and hammerhead shark management groups in the western Gulf of Mexico sub-region on January 1, 2017, as proposed in the August 29, 2016, proposed rule. The blacktip, aggregated LCS, and hammerhead shark management groups in the western Gulf of Mexico sub-region will open on February 1, 2017, which is a change from the proposed rule. For directed shark limited access permit holders, the blacktip, aggregated LCS, and hammerhead management groups in the entire Gulf of Mexico region will start the fishing season with a retention limit of 45 LCS other than sandbar sharks per vessel per trip. The aggregated LCS and hammerhead shark management groups in the Atlantic region will start the fishing season with a retention limit of 25 LCS other than sandbar sharks per vessel per trip for directed shark limited access permit holders, which is a change from the proposed rule. The retention limit for incidental shark limited access permit holders for all regions has not changed from the proposed rule and remains at 3 LCS other than sandbar sharks per trip and a combined total of 16 small coastal sharks (SCS) and pelagic sharks, combined per trip consistent with § 635.24(a)(3) and (4).

    This final rule serves as notification of the 2017 opening dates for the Atlantic commercial shark fisheries and 2017 quotas, based on shark landings data updated as of October 14, 2016, and considering the “opening commercial fishing season” criteria at § 635.27(b)(3). These criteria consider factors such as the available annual quotas for the current fishing season, estimated season length and average weekly catch rates from previous years, length of the season and fishermen participation in past years, impacts to accomplishing objectives of the 2006 Consolidated HMS FMP and its amendments, temporal variation in behavior or biology target species (e.g., seasonal distribution or abundance), impact of catch rates in one region on another, and effects of delayed season openings. This action does not establish or change the annual base commercial quotas established under the 2006 Consolidated HMS FMP and its amendments for any shark management group. The base quotas were established under previous actions, and any changes to those base quotas would be performed through a separate action. Rather, this action adjusts the annual commercial quotas for 2017 based on over- and/or underharvests that occurred in 2016 and previous fishing seasons, consistent with existing regulations and establishes the opening dates for the fisheries. Only the adjusted blacktip quota in the Gulf of Mexico region has changed since the proposed rule, based on updated landings information as of October 14, 2016; all other quotas remain the same as proposed.

    Response to Comments

    NMFS received approximately 300 written and oral comments on the proposed rule from fishermen, dealers, and other interested parties. All written comments can be found at http://www.regulations.gov/ by searching for RIN 0648-XE696. NMFS received approximately 10 oral comments through phone conversations or at the HMS Advisory Panel meeting on September 8, 2016. All of the oral comments are represented with the written comments below.

    A. LCS Management Group Comments

    Comment 1: NMFS received comments regarding the proposed opening dates for the western Gulf of Mexico LCS fisheries on January 1. Some commenters supported the proposed January 1 opening date for both Gulf of Mexico sub-regions, while other commenters supported a delayed western Gulf of Mexico opening date of February 1 to coincide with the religious holiday of Lent.

    Response: After considering public comment, NMFS has determined that changing the opening date to February 1 for the blacktip shark, aggregated LCS, and hammerhead shark management groups in the western Gulf of Mexico region, in combination with the change in retention limit (see discussion in Comment 2), will promote equitable fishing opportunities throughout this region. In reaching this determination, NMFS considered, in particular, the regulatory criterion regarding the length of the season in previous years for the different species and/or management groups and whether fishermen had been able to participate in the fishery in those years (§ 635.27(b)(3)(iii)). In 2016, NMFS opened the season on January 1 and closed it on March 12, 2016 (81 FR 12602; March 10, 2016). The State of Louisiana annually plans a state-water closure from April 1 through June 30. However, once NMFS announced that it was closing the Federal fishery, the State of Louisiana closed its waters as well, 2 weeks before its initially planned closure. Shark fishermen and dealers in the western Gulf of Mexico who were not expecting the closure did not have as much of an opportunity to fish as those few fishermen who fished earlier. Based on 2016 landings data, the majority of the shark landings from the western Gulf of Mexico region did not begin to occur until February, which is when other non-shark fisheries close. If NMFS were to open the fishery on January 1, 2017, it is likely that once again the fishery would need to close earlier than April 1 and a number of fishermen who would otherwise participate in the shark fishery based on traditional expectations would not have the opportunity. Furthermore, based on the review of the landings data, delaying the opening until February 1 will provide more equitable fishing opportunities. Thus, opening the season in February, in combination with the higher retention limit (see change discussion in Comment 2), should give all fishermen in the sub-region an equitable opportunity to harvest the quota before the state-water closure.

    Comment 2: NMFS received comments regarding the proposed commercial retention limit for the blacktip, aggregated LCS, and hammerhead management groups in the western Gulf of Mexico sub-region. Specifically, some commenters from the western Gulf of Mexico sub-region preferred a retention limit of 45 LCS other than sandbar sharks per vessel per trip instead of the proposed 30 LCS other than sandbar sharks per vessel per trip.

    Response: NMFS has determined that the default retention limit of 45 LCS other than sandbar sharks per vessel per trip at the start of the season will ensure equitable fishing opportunities in the western Gulf of Mexico sub-region. In the proposed rule, NMFS proposed a lower trip limit (30 LCS other than sandbar sharks per vessel per trip) in order to slow the harvest level due to the potential for a reduced hammerhead shark quota based on the 2016 sub-regional overharvest and given that the Aggregated LCS and hammerhead shark quotas are linked. The lower proposed trip limit was also intended to ensure the management groups remain open until at least April 2017, which is when the State of Louisiana closes state waters to shark fishing and when that State has asked that we close Federal shark fisheries to match state regulations if quotas are limited (see the criteria listed at § 635.27(b)(3)(vii) and 635.24(a)(8)(iii)). With the change in the western Gulf of Mexico LCS fisheries opening date to February 1 (see Comment 1), and because there are no sub-regional blacktip shark, aggregated LCS, and hammerhead shark management group quota adjustments due to overharvest, NMFS no longer believes a lower retention limit is needed to slow the harvest level to ensure the management groups will remain open until at least April 2017. Rather, NMFS will start the commercial retention limit at 45 LCS other than sandbar sharks per vessel per trip as of February 1, 2017, which is the retention limit preferred in public comments. However, NMFS may utilize the inseason retention limit adjustment during the fishing season if needed to ensure the quotas are not harvested too quickly and the management groups remain open at least until April 2017.

    Comment 3: NMFS received several comments regarding the proposed opening date and retention limits for the aggregated LCS and hammerhead management groups in the Atlantic region. Regarding the opening dates, some commenters from the southern and northern part of the Atlantic region supported the proposed opening date of January 1 for the aggregated LCS and hammerhead management groups and retention limits. Some of these commenters requested that NMFS modify the retention limits on an inseason basis to ensure the majority of the quota remains available later in the year since there are no other fisheries open in Florida at the end of the year. Other commenters suggested that NMFS delay the opening of the Atlantic region fishery until the western Gulf of Mexico LCS fisheries closes to ensure better market prices for the shark products. Additionally, comments from some of the fishermen in the southern part of the region preferred lowering the proposed retention limit of 36 to a lower retention limit of three to five LCS other than sandbar sharks per vessel per trip on January 1 with the potential for later inseason retention limit adjustments to ensure the opportunity to fish for sharks in October through December because they participate in other, non-shark fisheries at the beginning of the year and in the shark fisheries later in the year. NMFS also received comments that the LCS retention limit in the Atlantic region should stay at 36 LCS other than sandbar sharks per vessel per trip all season long and that NMFS should not later consider increasing the retention limit to 45 LCS other than sandbar sharks per vessel per trip since the aggregated LCS and hammerhead shark management groups quotas have not increased.

    Response: After considering the “opening commercial fishing season” criteria in light of the comments, which reflected general support of the proposed opening date, NMFS has decided to open the fisheries in the Atlantic region on January 1, 2017, as proposed, but with a lower retention limit than proposed. Specifically, on January 1, 2017, the LCS fisheries in the Atlantic region will open with a retention limit of 25 LCS other than sandbar sharks per vessel per trip for directed shark limited access permit holders. NMFS has determined that a lower retention limit at the start of the season will allow NMFS to more easily and closely monitor the quota and catch rates in the beginning of the year to help ensure equitable fishing opportunities later in the year, while still allowing the majority of quota to be harvested later in the year (see the criteria listed at § 635.24(a)(8)(iii)). NMFS chose 25 LCS other than sandbar sharks per vessel per trip because that is the commercial retention limit for the fishery from October 19, 2016, through the rest of the 2016 fishing season (81 FR 72007; October 19, 2016), and would not cause additional changes in fishing practices, thus minimizing any economic or compliance issues within the fishery. Also, this change seemed a reasonable amount between that of an incidental level (3 LCS other than sandbar sharks per vessel per trip) and maximum retention levels (between 36 and 55 LCS other than sandbar sharks per vessel per trip). The January 1 opening date, in combination with this reduced retention limit, should allow fishermen in the southern and northern portions of the Atlantic region the opportunity to fish at the beginning of the year, while providing all fishermen in the Atlantic region fishing opportunities later in the year, when the majority of fishing occurs, as the majority of the quota should still be available.

    The proposed rule stated that, if it appears that the quota is being harvested too quickly to allow fishermen throughout the entire region an opportunity to fish, NMFS will consider reducing the commercial retention limit after a portion of the quota is harvested (e.g., 20 percent) and later consider raising the commercial retention limit to 45 LCS other than sandbar sharks per vessel per trip around July 15 to allow greater fishing opportunities later in the year. After considering public comment, NMFS anticipates that it would consider increasing the commercial retention limit around July 15, 2017, as this was the date used for prior season opening dates and was the date NMFS increased the retention limit in 2016 (81 FR 44798; July 11, 2016).

    Regarding the request to delay the fishery in the Atlantic region until the shark fisheries in the Gulf of Mexico close, NMFS decided to not delay the LCS fisheries opening date in the Atlantic region until the western Gulf of Mexico fisheries are closed since this would not promote equitable fishing opportunities throughout the Atlantic region. In past fishing seasons, the LCS fisheries in the Gulf of Mexico have closed as early as March 17 or as late as July 17, and never on the same date year to year. Without knowing when the western or eastern Gulf of Mexico LCS fisheries will close, NMFS could not evaluate the “opening commercial fishing season” criteria (§ 635.27(b)(3)) when choosing an opening date for the Atlantic region based on the commenters' request. Thus, NMFS is not making a change in response to this comment and will open the Atlantic LCS fisheries on January 1. NMFS will consider adjusting the commercial retention limit during the season as appropriate to ensure equitable fishing opportunities.

    Regarding the comments that having the LCS fisheries in the Atlantic and western Gulf of Mexico regions open at the same time will impact the market prices, while NMFS considers economic impacts as required, market prices are not one of the criteria NMFS evaluates when choosing an opening date. However, in the past, the LCS fisheries in the Atlantic and Gulf of Mexico regions have been open at the same time, and during those times, NMFS has noticed impacts on the ex-vessel prices in either region. For example, in 2016, when both regional LCS fisheries were open in January, the ex-vessel price for Atlantic aggregated LCS was at its lowest when compared to the rest of the year, but was higher than the western Gulf of Mexico aggregated LCS ex-vessel prices.

    Comment 4: NMFS received comments regarding the overharvest of the western Gulf of Mexico sub-regional hammerhead shark quota. Some commenters were concerned that NMFS did not propose to adjust the western Gulf of Mexico sub-regional hammerhead shark quota even though the quota was overharvested by 41 percent in 2016.

    Response: Based on landings through October 14, 2016, NMFS is not adjusting the western Gulf of Mexico sub-regional hammerhead shark quota in this final rule. As stated in the proposed rule, even though the reported landings in the western Gulf of Mexico exceeded the 2016 sub-regional quota, the total regional Gulf of Mexico reported landings have not exceeded the 2016 regional quota as of October 14, 2016. The regulations implemented through Amendment 6 to the 2006 Consolidated HMS FMP (80 FR 50073; August 18, 2015), provide that sub-regional quota overages (e.g., western Gulf of Mexico sub-region) are only deducted from the next year's quota if the total regional quota (e.g., Gulf of Mexico region) is exceeded. Thus, at this time, because the overall regional quota has not been overharvested, NMFS is not adjusting the western Gulf of Mexico sub-region quota to account for the overharvest. However, because the eastern Gulf of Mexico sub-region remains open at the time of this final rulemaking and quota is still available in that sub-region, NMFS expects that landings will continue to occur. If landings in the eastern Gulf of Mexico sub-region exceed 8.5 mt dw (18,594 lb dw) (i.e., the remainder of the total regional Gulf of Mexico quota), then NMFS will take additional action to reduce the western Gulf of Mexico sub-region quota to account for overharvests in 2018.

    B. General Comments

    Comment 5: NMFS received some comments in support of the proposed rule regulating commercial shark fishing, while other commenters opposed the regulations that allow for increased adjusted quotas as a result of underharvest. Specifically, those in opposition were concerned with the accuracy and the potential for under reporting of shark landings.

    Response: As discussed in the proposed rule, shark stocks or management groups that are not overfished and have no overfishing occurring may have any underharvest carried over in the following year, up to 50 percent of the base quota (81 FR 59167; August 29, 2016). Since the Gulf of Mexico blacktip shark management group and smoothhound shark management groups in the Gulf of Mexico and Atlantic regions have been determined not to be overfished and to have no overfishing occurring, available underharvest from the 2016 fishing season for these management groups may be applied to the respective 2017 quotas to the extent allowable, and NMFS is doing so in this final rule.

    All commercial shark landings and quotas are monitored with the HMS electronic dealer reporting system, which has been in use since January 1, 2013. This improvement in commercial quota monitoring technology and the weekly, as opposed to biweekly, reporting on paper provides more information on each dealer transaction, including a requirement of reporting all shark landings to the species level, and ensures that quotas are not exceeded. Overall, this improvement helps with monitoring of commercial landings of all shark species and with closing management groups in a more efficient and timely manner.

    Comment 6: NMFS received approximately 280 comments in support of more conservative shark management measures by, for example, implementing lower commercial shark fishing quotas or prohibiting all commercial shark fishing to stop shark finning.

    Response: These comments are outside the scope of this rulemaking because the purpose of this rulemaking is to adjust quotas for the 2017 shark seasons based on over- and underharvests from the previous years and set opening dates and commercial retention limits for the 2017 shark seasons. The quotas and general management measures were established in previous rulemakings, which were the final rules to implement Amendment 2 to the 2006 Consolidated HMS FMP (73 FR 35778, June 24, 2008; corrected on 73 FR 40658; July 15, 2008), Amendment 5a to the 2006 Consolidated HMS FMP (78 FR 40318; July 3, 2013), Amendment 6 to the 2006 Consolidated HMS FMP (80 FR 50073; August 18, 2015), and Amendment 9 to the 2006 Consolidated HMS FMP (80 FR 73128; November 24, 2015). Management of the Atlantic shark fisheries is based on the best available science to achieve optimum yield while also rebuilding overfished shark stocks and preventing overfishing. NMFS currently is considering conservation and management to rebuild the dusky shark stock and prevent overfishing in Amendment 5b to the 2006 Consolidated HMS FMP (81 FR 71672; October 18, 2016). The comment period for that rulemaking ends on December 22, 2016.

    Comment 7: NMFS received a comment suggesting that we change the start of the fishing year for all shark species from January to September.

    Response: This comment is outside the scope of this rulemaking because the fishing year is defined in the regulations as January 1 to December 31. The rule did not reanalyze the overall start date of the shark fishing year, which was established in the 2006 Consolidated HMS FMP.

    Comment 8: NMFS received a comment suggesting that we not implement these regulations until such time that adequate shark research can be accomplished.

    Response: Management of the Atlantic shark fisheries is based on the best available science to achieve optimum yield while preventing overfishing and to rebuild overfished shark stocks. Domestic shark stock assessments are generally conducted through the Southeast Data, Assessment, and Review (SEDAR) process, in which NMFS participates. This process is also used by the South Atlantic, Gulf of Mexico, and Caribbean Fishery Management Councils and is designed to provide transparency throughout the stock assessment process. Generally, SEDAR stock assessments have three stages (data availability, assessment models, and peer review). Meetings in these stages may be face-to-face or by webinar or conference call. All meetings are open to the public. All reports from all stages of the process are available online at http://www.sefsc.noaa.gov/sedar/. The SEDAR process can take several months to over a year depending on whether the species has been assessed before, if a species needs a full review of a previous assessment, or if the assessment is more of an update to previous assessments. Because the process takes so long and because of the large number of shark stocks that need to be assessed, there are times where we have reviewed stock assessments that were completed and peer reviewed outside of the SEDAR process and have determined the assessment to be appropriate for management. We have done that for both porbeagle and scalloped hammerhead sharks. Additionally, there are some shark stocks that are assessed internationally via the process established by ICCAT. In all cases, we ensure the data and models used are appropriate, all sources of mortality are considered, and that the end result constitutes the best available science, consistent with National Standard 2 and other requirements.

    Comment 9: NMFS received comments asserting that sharks are worth more to eco-tourism than commercial fishermen.

    Response: In adjusting quotas for the 2017 shark seasons based on over- and underharvests from the previous years and setting opening dates and commercial retention limits for the 2017 shark seasons, NMFS considers specific regulatory criteria, including the available annual quotas for the current fishing season, estimated season length and average weekly catch rates from previous years, length of the season and fishermen participation in past years, impacts to accomplishing objectives of the 2006 Consolidated HMS FMP and its amendments, temporal variation in behavior or biology target species (e.g., seasonal distribution or abundance), impact of catch rates in one region on another, and effects of delayed season openings. NMFS does not consider the economic impacts of sharks to eco-tourism compared to commercial shark fishing. Such impacts are appropriately considered when establishing the base quotas.

    Comment 10: NMFS received a comment expressing concern about the high mercury levels in shark meat. Specifically, the commenter is concerned that NMFS still allows fishing for sharks even though the health impacts are well known about high levels of mercury in shark meat.

    Response: This comment is outside the scope of this rulemaking because the purpose of this rulemaking is to adjust quotas for the 2017 shark seasons based on over- and underharvests from the previous years and set opening dates and commercial retention limits for the 2017 shark seasons.

    Comment 11: NMFS received comments regarding the stock status of hammerhead shark and other shark species. Some commenters requested more protective management for hammerhead sharks and other shark species due to their threatened or endangered stock status listing by the International Union for the Conservation of Nature (IUCN).

    Response: This comment is outside the scope of this rulemaking, because the purpose of this rulemaking is to adjust quotas for the 2017 shark seasons based on over- and underharvests from the previous years and set opening dates and commercial retention limits for the 2017 shark seasons. NMFS published Amendment 5a on July 3, 2013 (78 FR 40318) which implemented quotas for the hammerhead shark complex, including scalloped hammerhead sharks, linked the hammerhead shark quota to the aggregated LCS quota, and established a hammerhead shark recreational minimum size limit to reduce fishing mortality and rebuild the scalloped hammerhead stock. That rulemaking addressed this issue and it is not further addressed in this rulemaking.

    Comment 12: NMFS received a comment requesting that NMFS implement individual fishing quotas for each of the three species of hammerhead sharks within the hammerhead shark management group.

    Response: This comment is outside the scope of this rulemaking, because the purpose of this rulemaking is to adjust quotas for the 2017 shark seasons based on over- and underharvests from the previous years and set opening dates and commercial retention limits for the 2017 shark seasons. The current hammerhead shark quota was established in Amendment 5a to the 2006 Consolidated HMS FMP based on the best available science (78 FR 40318; July 3, 2013). In that rulemaking, NMFS decided to include all hammerhead shark landings in one quota because the three hammerhead sharks are difficult to differentiate, with the most evident differences being small differences in the shape of the front of the head. Once the head has been removed and the carcass has been dressed, species identification becomes more difficult. NMFS intends to conduct stock assessments on scalloped, smooth, and great hammerhead sharks in the future, as soon as practicable given timing, resource limits, and data availability and NMFS could consider individual fishing quotas for each of the three species of hammerhead sharks in the future if warranted and supportable.

    Comment 13: NMFS received comments regarding state-water landings and discards of sharks with no observer coverage and fewer requirements and training than Federal fishermen. The commenters supported the need to have consistency between state, Council, and Federal regulations.

    Response: This comment is outside the scope of this rulemaking, because the purpose of this rulemaking is to adjust quotas for the 2017 shark seasons based on over- and underharvests from the previous years and set opening dates and commercial retention limits for the 2017 shark seasons. Many states allow landings of sharks by state-permitted fishermen. However, these fishermen must comply with the state fishing regulations, which in some cases are the same as Federal regulations or, in other cases, are more restrictive. NMFS will continue to work closely with the states to ensure consistent regulations for shark fishing, to the extent practicable.

    Comment 14: NMFS received comments that all quota linkages should be removed since it has contributed to underfishing for the past several years.

    Response: This comment is outside the scope of this rulemaking, because the purpose of this rulemaking is to adjust quotas for the 2017 shark seasons based on over- and underharvests from the previous years and set opening dates and commercial retention limits for the 2017 shark seasons. The current LCS and SCS quota linkages were implemented in the final rules for Amendment 5a and Amendment 6 to the 2006 Consolidated HMS FMP and NMFS is citing the rationale provided in the previous rulemakings. The issue of removing quota linkages is not being re-considered or re-addressed in this rulemaking now.

    As explained in those rulemakings, quota linkages were created for shark species that are in separate management groups, but that have the potential to be caught together on the same shark fishing trip (e.g. aggregated LCS and hammerhead sharks). If the quota for one management group has been harvested and the management group is closed, that species could still be caught as bycatch by fishermen targeting other shark species, possibly resulting in excess mortality and negating some of the conservation benefit of management group closures. In addition, shark quota linkages were put into place as part of the rebuilding plans for shark species that are overfished in order to reduce excess mortality of the overfished species during commercial fishing for other shark species. Thus, NMFS closes the linked shark management groups together.

    Comment 15: NMFS received comments requesting that we consider increasing the Federal fishery closure trigger for the shark management groups from 80 percent to greater than 90 percent to prevent quota underharvests and to promote harvesting quotas fully for the greater profitability for fishermen and for increased access to shark products for consumers.

    Response: This comment is outside the scope of this rulemaking, because the purpose of this rulemaking is to adjust quotas for the 2017 shark seasons based on over- and underharvests from the previous years and set opening dates and commercial retention limits for the 2017 shark seasons. The 80-percent Federal fishery closure trigger for the shark management groups was implemented in the final rule for Amendment 2 to the 2006 Consolidated HMS FMP and NMFS is citing the rationale provided in the previous rulemakings. The issue of changing this closure trigger is not being re-considered or re-addressed in this rulemaking now.

    As explained in Amendment 2, NMFS' goal is to allow shark fishermen to harvest the full quota without exceeding it in order to maximize economic benefits to stakeholders while achieving conservation goals, including preventing overfishing and rebuilding overfished stocks. Based on past experiences with monitoring quotas for HMS species, the 80-percent threshold works well, allowing for all or almost all of the quota to be harvested without exceeding the quota. As such, NMFS expects that, in general, the quotas would be harvested between the time that the 80-percent threshold is reached and the time that the season actually closes. In addition, NMFS must also account for late reporting by shark dealers even with the improved electronic dealer system. Closing shark fisheries when 80 percent of quotas have been harvested provides a buffer to include landings received after the reporting deadline in an attempt to avoid overharvests.

    Comment 16: NMFS received a comment to present all shark landings by species in addition to management group, particularly for hammerhead sharks given the listing of hammerhead sharks on Appendix II of the Convention on International Trade in Endangered Species (CITES).

    Response: This comment is outside the scope of this rulemaking, because the purpose of this rulemaking is to adjust quotas for the 2017 shark seasons based on over- and underharvests from the previous years and set opening dates and commercial retention limits for the 2017 shark seasons. NMFS presents the shark landings by species and region in the annual Stock Assessment and Fisheries Evaluation (SAFE) Report that is released in December of each year, consistent with confidentiality requirements.

    CITES is an international treaty designed to control and regulate international trade of certain animal and plant species that are now or potentially may be threatened with extinction and are affected by trade. Some shark species (e.g., oceanic whitetip sharks, great, scalloped, and smooth hammerhead sharks, and porbeagle sharks) are now listed on Appendix II, which imposes strict trade monitoring and could impact the ability of dealers to sell these species to international costumers. Additionally, starting in October 2017, silky and thresher sharks will be listed on Appendix II. Due to this listing, any U.S. fishermen or dealer who wishes to export these shark products will have to obtain a CITES permit in order to export or re-export these products.

    Changes From the Proposed Rule

    NMFS made four changes to the proposed rule, as described below.

    1. NMFS changed the final blacktip shark quota in the western Gulf of Mexico sub-region from the 331.8 mt dw (730,803 lb dw) in the proposed rule to 331.6 mt dw (730,425 lb dw), a difference of 378 lb dw, based on updated landings through October 14, 2016. The 2017 shark season proposed rule (81 FR 59167; August 29, 2016) was based on dealer reports available through July 15, 2016. NMFS explained in the proposed rule that it would adjust the proposed quotas based on dealer reports as of mid-October or mid-November 2015. Based on updated landings data through October 14, 2016, the overall available adjustment amount for the blacktip shark management group in the western Gulf of Mexico sub-region was 100.1 mt dw (220,164 lb dw), resulting in a small reduction in the amount of quota that could be carried over to 2017. Landings information beyond October 14, 2016, was not available while NMFS was writing this rule. Any landings between October 14 and December 31, 2016, will be accounted for in the 2018 shark fisheries quotas, as appropriate.

    2. NMFS changed the retention limit for directed shark limited access permit holders at the start of the commercial shark fishing season for the aggregated LCS and hammerhead shark management groups in the Atlantic region from 36 LCS other than sandbar sharks per vessel per trip to 25 LCS other than sandbar sharks per vessel per trip. As explained above, NMFS changed the retention limit after considering the “opening commercial fishing season” criteria (§ 635.27(b)(3)), public comment, and the 2016 landings data in order to promote equitable fishing opportunities throughout the Atlantic region.

    3. NMFS changed the retention limit for directed shark limited access permit holders for the aggregated LCS, blacktip shark, and hammerhead shark management groups in the western Gulf of Mexico sub-region from 30 LCS other than sandbar sharks per vessel per trip to 45 LCS other than sandbar sharks per vessel per trip. As explained above, NMFS changed the retention limit after considering the “opening commercial fishing season” criteria (§ 635.27(b)(3)), public comment, and the 2016 landings data in order to promote equitable fishing opportunities throughout the Gulf of Mexico region.

    4. NMFS changed the fishing season opening date for the western Gulf of Mexico from January 1, to February 1, 2017. NMFS changed the opening date based upon public comments that indicated a preference for a delayed opening when market conditions would be more optimal in that sub-region.

    2017 Annual Quotas

    This final rule adjusts the 2017 commercial quotas due to over- and/or underharvests in 2016 and previous fishing seasons, based on landings data through October 14, 2016. Based on overharvest in 2012 and 2015, NMFS had previously reduced the Atlantic blacknose shark base annual quota by 1.5 mt dw (3,268 lb dw) in 2016, 2017, and 2018. However, in 2016, the Atlantic blacknose shark quota was underharvested by 3.5 mt dw (7,725 lb dw). In the proposed rule for this action, NMFS noted that preliminary reported landings of blacknose sharks were at 78 percent (12.2 mt dw) of their 2016 quota levels (15.7 mt dw) in the Atlantic region. Given this large underharvest, NMFS notified the public that rather than spread out the previous years' overharvests over several years, it proposed to use the 2016 underharvest to cover the remaining 2012 and 2015 overharvest. Since NMFS received no comments on this proposal, 3.0 mt dw of the 2016 quota will be used to account for the past years' overharvests. An underharvest of 0.5 mt dw occurs in 2016 after this accounting but, pursuant to § 635.27(b)(2), NMFS cannot carry forward underharvest because blacknose sharks have been declared to be overfished with overfishing occurring in the Atlantic region. Therefore, the 2017 Atlantic blacknose shark quota is equal to the annual base quota without adjustment.

    The 2017 annual quotas by species and management group are summarized in Table 1. Any dealer reports that are received by NMFS after October 14, 2016, will be used to adjust the 2018 quotas, if necessary. A description of the quota calculations is provided in the proposed rule and is not repeated here. Any changes are described in the “Changes from the Proposed Rule” section.

    Table 1—Annual Quotas for the Atlantic Shark Fisheries [All quotas and landings are dressed weight (dw), in metric tons (mt), unless specified otherwise. 1 mt dw = 2,204.6 lb dw] Region or
  • sub-region
  • Management group 2016
  • annual quota
  • Preliminary
  • 2016
  • landings 1
  • Adjustments 2 2017
  • Base annual
  • quota
  • 2017
  • Final annual quota
  • (A) (B) (C) (D) (D+C) Eastern Gulf of Mexico Blacktip Sharks 28.9 mt dw (63,189 lb dw) 18.7 mt dw (41,116 lb dw) 10.9 mt dw (23,920 lb dw) 3 25.1 mt dw (55,439 lb dw) 36.0 mt dw (79,359 lb dw) Aggregated Large Coastal Sharks 85.5 mt dw (188,593 lb dw) 54.2 mt dw (119,592 lb dw) 85.5 mt dw (188,593 lb dw) 85.5 mt dw (188,593 lb dw) Hammerhead Sharks 13.4 mt dw (29,421 lb dw) 6.8 mt dw (14,955 lb dw) 13.4 mt dw (29,421 lb dw) 13.4 mt dw (29,421 lb dw) Western Gulf of Mexico Blacktip Sharks 266.5 mt dw (587,396 lb dw) 165.7 mt dw (365,385 lb dw) 100.1 mt dw (220,164 lb dw) 3 231.5 mt dw (510,261 lb dw) 331.6 mt dw (730,425 lb dw) Aggregated Large Coastal Sharks 72.0 mt dw (158,724 lb dw) 66.1 mt dw (145,791 lb dw) 72.0 mt dw (158,724 lb dw) 72.0 mt dw (158,724 lb dw) Hammerhead Sharks 11.9 mt dw (26,301 lb dw) 16.8 mt dw (37,128 lb dw) 11.9 mt dw (23,301 lb dw) 11.9 mt dw (23,301 lb dw) Gulf of Mexico Non-Blacknose Small Coastal Sharks 107.3 mt dw (236,603 lb dw) 60.6 mt dw (133,648 lb dw) 112.6 mt dw (248,215 lb dw) 112.6 mt dw (248,215 lb dw) Smoothhound Sharks 336.4 mt dw (741,627) 0 mt dw (0 lb dw) 168.2 mt dw (370,814 lb dw) 336.4 mt dw (741,627) 504.6 mt dw (1,112,441 lb dw) Atlantic Aggregated Large Coastal Sharks 168.9 mt dw (372,552 lb dw) 113.2 mt dw (249,661 lb dw) 168.9 mt dw (372,552 lb dw) 168.9 mt dw (372,552 lb dw) Hammerhead Sharks 27.1 mt dw (59,736 lb dw) 12.5 mt dw (27,542 lb dw) 27.1 mt dw (59,736 lb dw) 27.1 mt dw (59,736 lb dw) Non-Blacknose Small Coastal Sharks 264.1 mt dw (582,333 lb dw) 50.7 mt dw (111,793 lb dw) 264.1 mt dw (582,333 lb dw) 264.1 mt dw (582,333 lb dw) Blacknose Sharks (South of 34° N. lat. only) 15.7 mt dw (34,653 lb dw) 12.2 mt dw (26,928 lb dw) 17.2 mt dw (37,921 lb dw) 17.2 mt dw (37,921 lb dw) 4 Smoothhound Sharks 1,201.7 mt dw (2,647,725 lb dw) 287.4 mt dw (633,605 lb dw) 600.9 mt dw (1,323,862 lb dw) 1,201.7 mt dw (2,647,725 lb dw) 1,802.6 mt dw (3,971,587 lb dw) No regional quotas Non-Sandbar LCS Research 50.0 mt dw (110,230 lb dw) 14.6 mt dw (32,167 lb dw) 50.0 mt dw (110,230 lb dw) 50.0 mt dw (110,230 lb dw) Sandbar Shark Research 90.7 mt dw (199,943 lb dw) 41.5 mt dw (91,568 lb dw) 90.7 mt dw (199,943 lb dw) 90.7 mt dw (199,943 lb dw) Blue Sharks 273.0 mt dw (601,856 lb dw) < 1.0 mt dw (< 2,000 lb dw) 273.0 mt dw (601,856 lb dw) 273.0 mt dw (601,856 lb dw) Porbeagle Sharks 0 mt dw (0 lb dw) 0 mt dw (0 lb dw) 1.7 mt dw (3,748 lb dw) 1.7 mt dw (3,748 lb dw) Pelagic Sharks Other Than Porbeagle or Blue 488.0 mt dw (1,075,856 lb dw) 77.4 mt dw (170,675 lb dw) 488.0 mt dw (1,075,856 lb dw) 488.0 mt dw (1,075,856 lb dw) 1 Landings are from January 1, 2016, through October 14, 2016, and are subject to change. 2 Underharvest adjustments can only be applied to stocks or management groups that are not overfished and have no overfishing occurring. Also, the underharvest adjustments cannot exceed 50 percent of the base quota. 3 This adjustment accounts for underharvest in 2016. This final rule would increase the overall Gulf of Mexico blacktip shark quota by 111.0 mt dw (244,084 lb dw). Since any underharvest would be divided based on the sub-regional quota percentage split, 10.9 mt dw (9.8 percent of the overall regional quota adjustment) is being added to the eastern Gulf of Mexico blacktip shark base quota, and 100.1 mt dw (90.2 percent of the overall regional quota adjustment) is being added to the western Gulf of Mexico blacktip shark base quota. 4 Based on overharvest in 2012 and 2015, NMFS had previously reduced the Atlantic blacknose shark base annual quota by 1.5 mt dw (3,268 lb dw) in 2016, 2017, and 2018. However, in 2016, the Atlantic blacknose shark quota was underharvested by 3.5 mt dw (7,725 lb dw). NMFS will use the 2016 underharvest to cover the remaining overharvest amount of 3.0 mt dw (6,536 lb dw). Thus the 2017 Atlantic blacknose shark quota will be equal to base annual quota.
    Fishing Season Notification for the 2017 Atlantic Commercial Shark Fishing Seasons

    Based on the seven “opening commercial fishing season” criteria listed in § 635.27(b)(3), NMFS is opening the 2016 Atlantic commercial shark fishing seasons on January 1, 2017, except for the aggregated LCS, blacktip shark, and hammerhead shark management groups in the western Gulf of Mexico sub-region which will open on February 1, 2017 (Table 2).

    Regarding the LCS retention limit, as shown in Table 2, for directed shark limited access permit holders, the Gulf of Mexico blacktip shark, aggregated LCS, and hammerhead shark management groups will start the commercial fishing season at 45 LCS other than sandbar sharks per vessel per trip, and the Atlantic aggregated LCS and hammerhead shark management groups will start the commercial fishing season at 25 LCS other than sandbar sharks per vessel per trip. In the Atlantic region, as described above, NMFS will closely monitor the quota at the beginning of the year. If it appears that the quota is being harvested too quickly to allow fishermen throughout the entire region an opportunity to fish (e.g., if approximately 20 percent of the quota is caught at the beginning of the year), NMFS will consider reducing the commercial retention limit, then consider raising it later in the season. Based on prior years' fishing activity, to allow greater fishing opportunities later in the year, NMFS anticipates considering raising the commercial retention limit to the default limit of 36 LCS other than sandbar sharks per vessel per trip around July 15, 2017. Any retention limit reductions and increases will be based on consideration of the trip limit adjustment criteria at 50 CFR 635.24(a)(8).

    All of the shark management groups will remain open until December 31, 2017, or until NMFS determines that the fishing season landings for any shark management group has reached, or is projected to reach, 80 percent of the available quota; however, consistent with § 635.28(b)(5), NMFS may close the Gulf of Mexico blacktip shark management group before landings reach, or are expected to reach, 80 percent of the quota. Additionally, NMFS has previously established non-linked and linked quotas; linked quotas are explicitly designed to concurrently close multiple shark management groups that are caught together to prevent incidental catch mortality from exceeding the total allowable catch. The linked and non-linked quotas are shown in Table 2. NMFS will file for publication with the Office of the Federal Register a notice of closure for that shark species, shark management group including any linked quotas, and/or region that will be effective no fewer than 5 days from date of filing. From the effective date and time of the closure until NMFS announces, via the publication of a notice in the Federal Register, that additional quota is available and the season is reopened, the fisheries for the shark species or management group are closed, even across fishing years.

    Table 2—Quota Linkages, Season Opening Dates, and Commercial Retention Limit by Regional or Sub-Regional Shark Management Group Region or sub-region Management group Quota linkages Season opening dates Commercial retention limits for directed shark limited access permit holders
  • (inseason adjustments are available)
  • Eastern Gulf of Mexico Blacktip Sharks Not Linked January 1, 2017 45 LCS other than sandbar sharks per vessel per trip Aggregated Large Coastal Sharks Linked Hammerhead Sharks Western Gulf of Mexico Blacktip Sharks Not Linked February 1, 2017 45 LCS other than sandbar sharks per vessel per trip Aggregated Large Coastal Sharks Linked Hammerhead Sharks Gulf of Mexico Non-Blacknose Small Coastal Sharks Not Linked January 1, 2017 N/A Atlantic Aggregated Large Coastal Sharks Linked January 1, 2017 25 LCS other than sandbar sharks per vessel per trip. [If quota is landed quickly (e.g., if approximately 20 percent of quota is caught at the beginning of the year), NMFS anticipates considering an inseason reduction (e.g., to 3 or fewer LCS other than sandbar sharks per vessel per trip), and later considering an inseason increase to 36 LCS other than sandbar sharks per vessel per trip around July 15, 2017] Hammerhead Sharks Non-Blacknose Small Coastal Sharks Linked (South of 34 °N. lat. only) January 1, 2017 N/A Blacknose Sharks (South of 34 °N. lat. only) No regional quotas Non-Sandbar LCS Research Linked January 1, 2017 N/A Sandbar Shark Research Blue Sharks Not Linked January 1, 2017 N/A Porbeagle Sharks Pelagic Sharks Other Than Porbeagle or Blue
    Classification

    The NMFS Assistant Administrator has determined that the final rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, and other applicable law.

    This final rule is exempt from review under Executive Order 12866.

    In compliance with section 604 of the Regulatory Flexibility Act (RFA), NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) for this final rule, which analyzed the adjustments to the Gulf of Mexico blacktip shark, Gulf of Mexico smoothhound shark, and Atlantic smoothhound shark management group quotas based on underharvests from the previous fishing season(s). The FRFA analyzes the anticipated economic impacts of the final actions and any significant economic impacts on small entities. The FRFA is below.

    Section 604(a)(1) of the RFA requires an explanation of the purpose of the rulemaking. The purpose of this final rulemaking is, consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its amendments, to establish the 2017 Atlantic commercial shark fishing quotas, retention limits, and fishing seasons. Without this rule, the Atlantic commercial shark fisheries would close on December 31, 2016, and would not reopen until another action was taken. This final rule will be implemented according to the regulations implementing the 2006 Consolidated HMS FMP and its amendments. Thus, NMFS expects few, if any, economic impacts to fishermen other than those already analyzed in the 2006 Consolidated HMS FMP and its amendments. While there may be some direct negative economic impacts associated with the opening dates for fishermen in certain areas, there could also be positive effects for other fishermen in the region. The opening dates were chosen to allow for an equitable distribution of the available quotas among all fishermen across regions and states, to the extent practicable.

    Section 604(a)(2) of the RFA requires NMFS to summarize significant issues raised by the public in response to the Initial Regulatory Flexibility Analysis (IRFA), provide a summary of NMFS' assessment of such issues, and provide a statement of any changes made as a result of the comments. The IRFA was done as part of the proposed rule for the 2017 Atlantic Commercial Shark Season Specifications. NMFS did not receive any comments specific to the IRFA. However, NMFS received comments related to the overall economic impacts of the proposed rule, and those comments and NMFS' assessment of and response to them are summarized above (see Comments 3 and 9 above). As described in the responses to those comments relating to the season opening dates, consistent with § 635.27(b)(3), the opening date for the all of the commercial shark fisheries will be implemented as proposed (January 1, 2017), except for the western Gulf of Mexico sub-region, which will open on February 1, 2017.

    Section 604(a)(4) of the RFA requires NMFS to provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesters. Provision is made under SBA's regulations for an agency to develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS must publish such size standards in the Federal Register (FR), which NMFS did on December 29, 2015 (80 FR 81194, December 29, 2015). In this final rule effective on July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes (80 FR 81194, December 29, 2015). NMFS considers all HMS permit holders to be small entities because they had average annual receipts of less than $11 million for commercial fishing.

    As of October 2016, the proposed rule would apply to the approximately 223 directed commercial shark permit holders, 271 incidental commercial shark permit holders, 103 smoothhound shark permit holders, and 111 commercial shark dealers. Not all permit holders are active in the fishery in any given year. Active directed commercial shark permit holders are defined as those with valid permits that landed one shark based on HMS electronic dealer reports. Of the 494 directed and incidental commercial shark permit holders, only 40 permit holders landed sharks in the Gulf of Mexico region and only 99 landed sharks in the Atlantic region. Of the 103 smoothhound shark permit holders, only 59 permit holders landed smoothhound sharks in the Atlantic region and none landed smoothhound sharks in the Gulf of Mexico region. NMFS has determined that the proposed rule would not likely affect any small governmental jurisdictions.

    Section 604(a)(5) of the RFA requires NMFS to describe the projected reporting, recordkeeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities which would be subject to the requirements of the report or record. None of the actions in this final rule would result in additional reporting, recordkeeping, or compliance requirements beyond those already analyzed in the 2006 Consolidated HMS FMP and its amendments.

    Section 604(a)(6) of the RFA requires NMFS to describe the steps taken to minimize the economic impact on small entities, consistent with the stated objectives of applicable statutes. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives that would accomplish the stated objectives of applicable statutes and minimize any significant economic impact of the rule on small entities. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule, or any part thereof, for small entities.

    In order to meet the objectives of this rule, consistent with the Magnuson-Stevens Act, NMFS cannot exempt small entities or change the reporting requirements only for small entities because all the entities affected are small entities. Thus, there are no alternatives discussed that fall under the first, second, and fourth categories described above. NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act; therefore, there are no alternatives considered under the third category.

    This rulemaking does not establish management measures to be implemented, but rather implements previously adopted and analyzed measures as adjustments, as specified in the 2006 Consolidated HMS FMP and its amendments and the Environmental Assessment (EA) for the 2011 shark quota specifications rule (75 FR 76302; December 8, 2010). Thus, in this rulemaking, NMFS adjusted the base quotas established and analyzed in the 2006 Consolidated HMS FMP and its amendments by subtracting the underharvest or adding the overharvest, as specified and allowable in existing regulations. Under current regulations (§ 635.27(b)(2)), all shark fisheries close on December 31 of each year, or when NMFS determines that the fishing season landings for any shark management group has reached, or is projected to reach, 80 percent of the available quota, and do not open until NMFS takes action, such as this rulemaking to re-open the fisheries. Thus, not implementing these management measures would negatively affect shark fishermen and related small entities, such as dealers, and also would not provide management flexibility in furtherance of equitable fishing opportunities, to the extent practicable, for commercial shark fishermen in all regions and areas.

    Based on the 2015 ex-vessel price, fully harvesting the unadjusted 2017 Atlantic shark commercial baseline quotas could result in total fleet revenues of $8,265,467 (see Table 3). For the Gulf of Mexico blacktip shark management group, NMFS will increase the baseline sub-regional quotas due to the underharvests in 2016. The increase for the eastern Gulf of Mexico blacktip shark management group would result in a $24,099 gain in total revenues for fishermen in that sub-region, while the increase for the western Gulf of Mexico blacktip shark management group would result in a $221,815 gain in total revenues for fishermen in that sub-region. For the Gulf of Mexico and Atlantic smoothhound shark management groups, NMFS will increase the baseline quotas due to the underharvest in 2016. This would cause a potential gain in revenue of $270,323 for the fleet in the Gulf of Mexico region and a potential gain in revenue of $965,095 for the fleet in the Atlantic region.

    All of these changes in gross revenues are similar to the changes in gross revenues analyzed in the 2006 Consolidated HMS FMP and its amendments. The FRFAs for those amendments concluded that the economic impacts on these small entities are expected to be minimal. In the 2006 Consolidated HMS FMP and its amendments and the EA for the 2011 shark quota specifications rule, NMFS stated it would be conducting annual rulemakings and considering the potential economic impacts of adjusting the quotas for under- and overharvests at that time.

    Table 3—Average Ex-Vessel Prices per lb dw for Each Shark Management Group, 2015 Region Species Average
  • ex-vessel
  • meat price
  • Average
  • ex-vessel
  • fin price
  • Gulf of Mexico Blacktip Shark $0.51 $9.95 Aggregated LCS 0.55 9.96 Hammerhead Shark 0.61 11.98 Non-Blacknose SCS 0.35 6.72 Smoothhound Shark* 0.65 1.58 Atlantic Aggregated LCS 0.80 4.73 Hammerhead Shark 0.65 10.25 Non-Blacknose SCS 0.73 4.36 Blacknose Shark 0.97 4.00 Smoothhound Shark* 0.65 1.58 No Region Shark Research Fishery (Aggregated LCS) 0.68 9.24 Shark Research Fishery (Sandbar only) 0.76 10.62 Blue shark 0.60 2.93 Porbeagle shark 1.50 2.93 Other Pelagic sharks 1.50 2.93 * Ex-vessel prices for smoothhound sharks come from HMS dealers who submitted landings data voluntarily before it was a requirement on March 15, 2016.

    For this final rule, NMFS reviewed the “opening commercial fishing season” criteria at § 635.27(b)(3)(i) through (vii) to determine when opening each fishery will provide equitable opportunities for fishermen while also considering the ecological needs of the different species. Over- and/or underharvests of 2016 and previous fishing season quotas were examined for the different species/complexes to determine the effects of the 2017 final quotas on fishermen across regional fishing areas. The potential season lengths and previous catch rates were examined to ensure that equitable fishing opportunities would be provided to fishermen. Lastly, NMFS examined the seasonal variation of the different species/complexes and the effects on fishing opportunities. In addition to these criteria, NMFS also considered other relevant factors, such as recent landings data and public comments, before arriving at the final opening dates for the 2017 Atlantic shark management groups. For the 2017 fishing season, NMFS is opening the shark management groups on January 1, 2017, except for the aggregated LCS, blacktip shark, and hammerhead shark management groups in the western Gulf of Mexico sub-region, which will open on February 1, 2017. The direct and indirect economic impacts will be neutral on a short- and long-term basis for the eastern Gulf of Mexico blacktip shark, eastern Gulf of Mexico aggregated LCS, eastern Gulf of Mexico hammerhead shark, Gulf of Mexico non-blacknose shark SCS, Atlantic non-blacknose shark SCS, Atlantic blacknose shark, sandbar shark, blue shark, porbeagle shark, and pelagic shark (other than porbeagle or blue sharks) management groups, because NMFS did not change the opening dates of these fisheries from the status quo. For the aggregated LCS, blacktip shark, and hammerhead shark management groups in the western Gulf of Mexico sub-region, the delayed opening to February 1, 2017, anticipates minor positive short- and long-term economic impacts, because, according to public comments, ex-vessel prices for sharks are expected to be higher at that time in that sub-region.

    Opening the aggregated LCS and hammerhead shark management groups in the Atlantic region on January 1 will result in short-term, direct, moderate, beneficial economic impacts, as fishermen and dealers in the southern portion of the Atlantic region will be able to fish for and sell aggregated LCS and hammerhead sharks starting in January. These fishermen will be able to fish earlier in the 2017 fishing season compared to the 2010, 2011, 2012, 2014, and 2015 fishing seasons, which did not start until June or July. Based on public comment, some Atlantic fishermen in the southern and northern part of the region prefer a January 1 opening for the fishery as long as the majority of the quota is available later in the year. With the implementation of the HMS electronic reporting system in 2013, NMFS now monitors the quota on a more real-time basis compared to the paper reporting system that was in place before 2013. This ability, along with the inseason retention limit adjustment criteria in § 635.24(a)(8), should allow NMFS the flexibility to further provide equitable fishing opportunities for fishermen across all regions, to the extent practicable. Depending on how quickly the quota is being harvested, NMFS will consider reducing the commercial retention limit, then consider raising it later in the season to ensure that fishermen farther north have sufficient quota for a fishery later in the 2017 fishing season. The direct impacts to shark fishermen in the Atlantic region of reducing the trip limit depend on the needed reduction in the trip limit and the timing of such a reduction. Therefore, such a reduction in the trip limit for directed shark limited access permit holders is only anticipated to have minor adverse direct economic impacts to fishermen in the short-term; long-term impacts are not anticipated as these reductions would not be permanent.

    In the northern portion of the Atlantic region, a January 1 opening for the aggregated LCS and hammerhead shark management groups, with inseason trip limit adjustments to ensure quota is available later in the season, will have direct, minor, beneficial economic impacts in the short-term for fishermen as they will potentially have access to the aggregated LCS and hammerhead shark quotas earlier than in past seasons. Fishermen in this area have stated that, depending on the weather, some aggregated LCS species might be available to retain in January. Thus, fishermen will be able to target or retain aggregated LCS while targeting non-blacknose SCS. There will be indirect, minor, beneficial economic impacts in the short- and long-term for shark dealers and other entities that deal with shark products in this region as they will also have access to aggregated LCS products earlier than in past seasons. Thus, opening the aggregated LCS and hammerhead shark management groups in January and using inseason trip limit adjustments to ensure the fishery is open later in the year in 2017 will cause beneficial cumulative economic impacts, because it allows for a more equitable distribution of the quotas among constituents in this region, consistent with the 2006 Consolidated HMS FMP and its amendments.

    Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS has prepared a listserv summarizing fishery information and regulations for Atlantic shark fisheries for 2017. This listserv also serves as the small entity compliance guide. Copies of the compliance guide are available from NMFS (see ADDRESSES).

    Authority:

    16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    Dated: November 17, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-28154 Filed 11-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 160531477-6999-02] RIN 0648-BG10 Atlantic Highly Migratory Species; Removal of Vessel Upgrade Restrictions for Swordfish Directed Limited Access and Atlantic Tunas Longline Category Permits AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This final rule removes vessel upgrading restrictions for vessels issued swordfish directed and Atlantic tunas Longline category limited access permits (LAPs). Currently, regulations allow for upgrading vessels or transferring permits to another vessel only if the vessel upgrade or permit transfer results in an increase of no more than 35 percent in length overall, gross registered tonnage, and net tonnage, as measured relative to the baseline vessel specifications (i.e., the specifications of the vessel first issued a Highly Migratory Species (HMS) LAP). This final rule eliminates these restrictions on upgrades and permit transfers. This action affects vessel owners issued swordfish directed and Atlantic tunas Longline category LAPs and fishing in the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea.

    DATES:

    This rule is effective on December 23, 2016.

    ADDRESSES:

    Other documents relevant to this final rule are available from the Atlantic HMS Management Division Web site at http://www.nmfs.noaa.gov/sfa/hms/ or by contacting Steve Durkee by phone at 202-670-6637 or Rick Pearson by phone at 727-824-5399.

    FOR FURTHER INFORMATION CONTACT:

    Steve Durkee by phone at 202-670-6637 or Rick Pearson by phone at 727-824-5399.

    SUPPLEMENTARY INFORMATION:

    The U.S. Atlantic swordfish and tuna fisheries are managed under the 2006 Consolidated HMS Fishery Management Plan (FMP) and its amendments. Implementing regulations at 50 CFR part 635 are issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq., and the Atlantic Tunas Convention Act (ATCA), 16 U.S.C. 971 et seq. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT).

    Background

    This final rule removes vessel upgrading restrictions for vessels issued swordfish directed and Atlantic tunas Longline category LAPs. A brief summary of the background of this final rule is provided below. The details were described in the proposed rule for this action (81 FR 48731, July 26, 2016) and are not repeated here. Additional information regarding Atlantic HMS management can be found in the 2006 Consolidated Atlantic HMS FMP and its amendments, the annual HMS Stock Assessment and Fishery Evaluation (SAFE) Reports, and online at http://www.nmfs.noaa.gov/sfa/hms/. The comments received on the proposed rule for this action, and NMFS' responses to those comments, are summarized below in the section labeled “Response to Comments.”

    In 1999, NMFS issued initial LAPs in the Atlantic swordfish and shark fisheries (64 FR 29090, March 28, 1999). To be eligible to fish with pelagic longline gear, a vessel had to be issued a swordfish directed or incidental LAP, a shark directed or incidental LAP, and an Atlantic tunas Longline category permit. After initial issuance of these permits, no new permits were issued by NMFS, but permits could be transferred to other vessels. Swordfish and shark directed LAPs included restrictions on vessel upgrading and permit transfers. Vessel upgrades and permit transfers were allowed only if the upgrade or permit transfer to another vessel did not result in an increase in horsepower of more than 20 percent or an increase of more than 10 percent in length overall, gross registered tonnage, or net tonnage relative to the respective specifications of the first vessel issued the initial LAP (the baseline vessel). Additionally, vessels could only be upgraded one time. These vessel upgrading restrictions were put into place to limit capacity in the swordfish fishery. Incidental LAPs for these species did not have vessel upgrading restrictions. Upgrading restrictions for Atlantic tunas Longline category LAPs were not explicitly implemented in the 1999 rule. However, as a practical effect, Atlantic tunas Longline category LAPs were limited by the same upgrading restrictions as the swordfish and shark directed permits due to the requirement to hold all three permits when fishing with pelagic longline gear.

    On June 7, 2007 (72 FR 31688), NMFS issued a final rule amending the HMS fishery regulations to provide additional opportunities for U.S. vessels to more fully utilize the North Atlantic swordfish quota, recognizing the improved status of the species. The 2007 action modified limited access vessel upgrading and permit transfer restrictions for vessels that were concurrently issued, or were eligible to renew, directed or incidental swordfish, directed or incidental shark, and Atlantic tunas Longline category LAPs (i.e., vessels that were eligible to fish with pelagic longline gear). The rule also clarified that Atlantic tunas Longline category LAPs were subject to the same vessel upgrade restrictions as swordfish and shark directed LAPs. These measures allowed eligible vessel owners to upgrade their vessels by 35 percent in size (length overall, gross registered tonnage, and net tonnage) relative to the specifications of the baseline vessel, and removed upgrade limits on horsepower. Additionally, these permits could be upgraded more than once, provided that the new maximum upgrade limits were not exceeded.

    Since implementing the vessel upgrade requirements in 1999 and modifying them in 2007, several important things have changed in the Atlantic HMS pelagic longline fishery. As described in the proposed rule for this action, NMFS was concerned about ensuring that pelagic longline fishing effort and fleet capacity were commensurate with the available swordfish quota in 1999. The vessel upgrading restrictions were part of NMFS' management strategy to reduce fleet capacity. Since then, fleet capacity has been reduced through the successful application of the initial LAP qualification criteria and attrition over time. In 1998, prior to the implementation of upgrade restrictions, 233 pelagic longline vessels among the 2,000 permit holders landed swordfish and thus were considered “active.” The number of such vessels dropped to a low of 102 in 2006 and has since remained between 109 and 122 vessels. Similarly, as of December 30, 1999, approximately 451 directed and incidental swordfish LAPs had been issued. By 2015, permit numbers had been reduced to 260 directed and incidental swordfish LAPs. Permit numbers are expected to remain at approximately these levels because no new LAPs are being issued.

    Other requirements implemented since 1999, such as those designed to reduce bycatch in the pelagic longline fishery (e.g., closed areas, bait requirements, individual bluefin tuna quotas, and gear restrictions), have also limited fishing effort. The directed North Atlantic swordfish quota has not been exceeded in almost 20 years and, in fact, has been underharvested for a number of years.

    During this same time period, the stock status of North Atlantic swordfish has significantly improved. In 2009, ICCAT declared that the stock had been fully rebuilt. Using domestic stock status thresholds, NMFS has also declared that the North Atlantic swordfish stock is not overfished and that overfishing is not occurring.

    In addition to limiting capacity in the HMS pelagic longline fishery, a secondary goal for implementing the specific swordfish directed and Atlantic tunas Longline vessel upgrade limits adopted in 1999 was to be consistent with similar regulations previously established by the New England and Mid-Atlantic Fishery Management Councils (Councils). In August 2015, the Councils removed gross registered and net tonnage limits (80 FR 51754) so that only length and horsepower limits remain in effect. Because this HMS action will remove all upgrade restrictions for vessels issued swordfish directed and Atlantic tunas Longline category LAPs, only the Council regulations will limit vessel upgrading for vessels issued LAPs for both Council-managed species and HMS. Thus, there will be no conflict between Council and HMS vessel upgrade restrictions. This action will simplify compliance for dually permitted vessels and provide greater flexibility for HMS permitted vessels.

    Because the overall reduction in pelagic longline fleet capacity, in combination with the totality of effort controls implemented since 1999, has sufficiently limited the Atlantic HMS pelagic longline fishery's capacity, vessel upgrading and related permit transfer restrictions are no longer necessary at this time. Therefore, this final rule removes all upgrading restrictions for vessels issued swordfish directed and Atlantic tunas Longline category LAPs. Although limited in scope, this action eases a barrier to entry in the pelagic longline fishery, facilitates LAP transfers, provides increased business flexibility, and helps vessel owners address safety issues. Eliminating vessel upgrading restrictions will have short- and long-term minor beneficial socioeconomic impacts, since it will allow fishermen to buy, sell, or transfer swordfish directed and Atlantic tunas Longline category LAPs without concerns about exceeding the maximum upgrade limit for the permits. It will also allow vessel owners to transfer their permits to newer vessels, which could have greater capacity, and address safety issues that exist with older vessels.

    Removing the upgrading restrictions is not expected to affect the overall number of swordfish and tunas being landed by vessels, as these amounts are determined by established quotas and effort controls (including, for example, individual vessel quotas for bluefin tuna), not the size of the vessel. Thus, this action is expected to have no ecological impacts beyond those previously analyzed regarding the quotas and existing conservation and management measures, and will not result in additional interactions with protected resources, given the other restrictions on the Atlantic HMS pelagic longline fishery.

    Response to Comments

    The comment period for the proposed rule closed on September 26, 2016. NMFS received three written comments, which can be found at https://www.regulations.gov/ by searching for NOAA-NMFS-2016-0087. Comments were also received from the Atlantic HMS Advisory Panel during its meeting on September 7, 2016. No comments were received during a conference call/webinar held on August 23, 2016. NMFS received comments in support of, and one opposed to, removing vessel upgrade restrictions for vessels issued Atlantic tunas Longline category and swordfish directed permits. A summary of the comments received during the public comment period is provided below along with NMFS's responses.

    Comment 1: A commenter opposed to removing HMS pelagic longline vessel upgrade restrictions stated that the proposal will enable permits to be transferred to larger vessels that could catch more fish. The commenter also wrote that there should be a complete ban on catching swordfish because the species is virtually extinct.

    Response: North Atlantic swordfish are not virtually extinct. In 2009, ICCAT declared that the stock was fully rebuilt, and it has remained so ever since. Using domestic stock status thresholds, NMFS has also declared that the north Atlantic swordfish stock is not overfished and that overfishing is not occurring. The most recent stock assessment, conducted in 2013, indicates that the stock is not overfished (B2011/BMSY = 1.14) and overfishing is not occurring (F2011/FMSY = 0.82). North Atlantic swordfish quotas are set by ICCAT considering the stock's status and to ensure that the stock is sustainably harvested and to prevent overfishing from occurring. The United States adheres to its ICCAT-designated quota and, in fact, has underharvested the quota for the past several years. Numerous conservation and management measures remain in place in addition to the quota limitations to ensure that the stock is protected. The vessel upgrading restriction removal does not affect the amount of fish caught, nor does it relieve other restrictions that ensure effective conservation and management of this rebuilt fishery. Thus, the commenter's concerns about the stock being “virtually extinct” are unfounded and do not warrant modification of the proposed action.

    While removing the upgrade restrictions for vessels issued swordfish directed and Atlantic tunas Longline category permits could facilitate the transfer of permits to larger vessels which could catch more swordfish, overall compliance with the quota in this fishery ensures that the stock is not negatively affected by fishing effort. North Atlantic swordfish landings are regulated by semi-annual quotas, and the fishery can be adjusted or closed as those quotas are approached. Similarly, landings of most tunas and pelagic sharks are regulated by quotas which can be adjusted, as necessary, to remain within the quotas.

    Comment 2: A supporter of the proposal to remove upgrade restrictions for vessels issued Atlantic tunas Longline category and swordfish directed permits stated that when the upgrade restrictions were first implemented, the commercial swordfish industry was at a peak in terms of both participation and landings. The commenter stated that the swordfish fleet is currently in decline due to increased operating costs, competition from foreign product, and regulatory restrictions, despite a fully recovered north Atlantic swordfish stock; that NMFS should pursue management measures to allow new entrants into the fishery and to expand the production capabilities of the existing fleet; and that eliminating vessel upgrading restrictions is a small step toward encouraging new entrants in the pelagic longline fishery to keep the fleet operative.

    Response: Although this final action is limited in scope, it will ease a barrier to entry in the pelagic longline fishery, facilitate LAP transfers, and provide increased business flexibility. As discussed above, both the North Atlantic swordfish stock status and the pelagic longline fishery have changed significantly since 1999. The vessel upgrading restrictions were part of NMFS' initial management strategy to reduce fleet capacity. Since then, capacity has been reduced through the successful application of the initial LAP qualification criteria and attrition over time. Both the number of swordfish LAPs and the number of pelagic longline vessels actively landing swordfish have declined by approximately 50 percent since 1999. As a result of these and other management measures, swordfish are no longer overfished and overfishing is not occurring. The overall reduction in fleet capacity, in combination with the totality of effort controls implemented since 1999, has sufficiently limited the Atlantic HMS pelagic longline fishery's capacity. Thus, vessel upgrading and related permit transfer restrictions are no longer necessary or relevant at this time. Adverse impacts on stock status can be avoided because swordfish landings are regulated by semi-annual quotas, and the fishery can be adjusted or closed as those quotas are approached. Similarly, landings of most tunas and pelagic sharks are regulated by quotas which can be adjusted, as necessary, to remain within the quotas.

    Comment 3: When the upgrade restrictions were first implemented, vessel observers were not considered. The requirement to carry observers requires more space onboard a vessel, thus there is sometimes a need to increase the size of vessels more than might be allowed by the existing upgrade restrictions.

    Response: Pelagic longline vessels are required to carry observers if selected by NMFS. Removing the upgrade restrictions for vessels issued swordfish directed and Atlantic tunas Longline category permits could allow owners to modify their vessels or purchase newer, larger vessels that would better accommodate these observers.

    Comment 4: A commenter in support of the proposed action indicated that fishing vessels and fishing equipment needs improvement from time to time and that vessel upgrading restrictions have sometimes restricted that ability.

    Response: NMFS agrees. Removing upgrade restrictions for vessels issued swordfish directed and Atlantic tunas Longline category vessels could facilitate improvements in safety, working conditions, and overall living conditions for both crew members and fishery observers while onboard. This final rule will allow pelagic longline vessel owners to make necessary modifications to their vessels without restrictions on vessel length and tonnage.

    Comment 5: A commenter indicated that it has been almost impossible to replace their older engine with a similar engine due to the horsepower upgrade limits.

    Response: Horsepower upgrade limits for most HMS pelagic longline vessels were removed in a final rule that published on June 7, 2007 (72 FR 31688).

    Comment 6: NMFS should remove vessel upgrade restrictions on swordfish handgear LAPs in order to convert permits that are currently useless due to low horsepower upgrade limits and allow them to be used because handgear vessel owners often prefer high horsepower ratings.

    Response: NMFS has previously considered this request in a final rule that published on June 7, 2007 (72 FR 31688) and will continue to do so. The swordfish handgear LAP authorizes the deployment of buoy gear, and buoy gear may be deployed in areas including the East Florida Coast pelagic longline closed area. This area contains oceanographic features that make it biologically unique. It provides important juvenile swordfish habitat, and is essentially a narrow migratory corridor containing high concentrations of swordfish located in close proximity to high concentrations of people who may fish for them. As stated in 2007, horsepower upgrade restrictions can limit the number of swordfish handgear LAPs that are issued because newer handgear vessels have very high horsepower ratings. Public comment indicated a concern that removing vessel upgrade restrictions on swordfish handgear LAPs could result in increased numbers of fishermen in the area, and the potential for crowding of fishermen, which could lead to potential fishing gear and user conflicts. Those concerns remain valid and NMFS decided not to pursue similar adjustments in the swordfish handgear fishery at this time.

    Comment 7: Some fishermen might obtain swordfish directed permits because those permits could be used to fish with handgear (including buoy gear). This final action could provide a preliminary preview of lifting the vessel upgrade restrictions on swordfish handgear permits.

    Response: Vessels in the swordfish buoy gear fishery are generally small. NMFS believes that the current vessel size restrictions (for maximum length and tonnage) applicable to pelagic longline vessels issued swordfish directed and Atlantic tunas Longline category LAPs have not been a limiting factor in the number of vessels that use buoy gear. Rather, commenters indicated that buoy gear vessel owners are primarily limited by horsepower upgrade restrictions. Because the horsepower upgrade restrictions have already been removed from most swordfish directed limited access and Atlantic tunas Longline category LAPs (72 FR 31688) and because vessels owners who wish to enter the buoy gear fishery and whose vessels have large horsepower engines have already obtained permits and entered the fishery, it is unlikely that this action will result in significant increases in persons obtaining swordfish directed and Atlantic tunas Longline category LAPs to fish with buoy gear.

    Comment 8: NMFS should remove vessel upgrade restrictions on swordfish and shark incidental LAPs, and shark directed LAPs.

    Response: Swordfish and shark incidental LAPs and shark directed LAPs do not have vessel upgrade restrictions.

    Changes From the Proposed Rule

    There are no changes from the proposed rule.

    Classification

    The NMFS Assistant Administrator has determined that this final action is necessary for the conservation and management of the Atlantic HMS fisheries, and that it is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, ATCA, and other applicable laws.

    This final action has been determined to be categorically excluded from the requirement to prepare an environmental assessment in accordance with NOAA Administrative Order 216-6. A memorandum for the file has been prepared that sets forth the decision to use a categorical exclusion because the rule would implement minor changes to the regulations whose effects have already been analyzed, and additional effects are not expected. This action will have no additional effects that were not already analyzed, and the action is not precedent-setting or controversial. It would not have a significant effect, individually or cumulatively, on the human environment.

    This final 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 during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

    NMFS has determined that this final rule will have no effects on any coastal use or resource, and a negative determination pursuant to 15 CFR 930.35 is not required. Therefore, pursuant to 15 CFR 930.33(a)(2), coordination with appropriate state agencies under section 307 of the Coastal Zone Management Act is not required. No changes to the human environment are anticipated because removing the vessel upgrading restrictions would not affect the number of swordfish and tunas being landed by vessels, as these amounts are determined by the established quotas and effort controls, not the size of the vessel.

    List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: November 17, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For reasons set out in the preamble, 50 CFR part 635 is amended as follows:

    PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority:

    16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    2. In § 635.4, revise paragraphs (l)(2)(i), (l)(2)(ii) introductory text, (l)(2)(ii)(B), and (l)(2)(ii)(C) to read as follows:
    § 635.4 Permits and fees.

    (l) * * *

    (2) * * *

    (i) Subject to the restrictions on upgrading the harvesting capacity of permitted vessels in paragraph (l)(2)(ii) of this section, as applicable, and to the limitations on ownership of permitted vessels in paragraph (l)(2)(iii) of this section, an owner may transfer a shark or swordfish LAP or an Atlantic Tunas Longline category permit to another vessel that he or she owns or to another person. Directed handgear LAPs for swordfish may be transferred to another vessel or to another person but only for use with handgear and subject to the upgrading restrictions in paragraph (l)(2)(ii) of this section and the limitations on ownership of permitted vessels in paragraph (l)(2)(iii) of this section. Shark directed and incidental LAPs, swordfish directed and incidental LAPs, and Atlantic Tunas Longline category permits are not subject to the upgrading requirements specified in paragraph (l)(2)(ii) of this section. Shark and swordfish incidental LAPs are not subject to the ownership requirements specified in paragraph (l)(2)(iii) of this section.

    (ii) An owner may upgrade a vessel with a swordfish handgear LAP, or transfer such permit to another vessel or to another person, and be eligible to retain or renew such permit only if the upgrade or transfer does not result in an increase in horsepower of more than 20 percent or an increase of more than 10 percent in length overall, gross registered tonnage, or net tonnage from the vessel baseline specifications.

    (B) Subsequent to the issuance of a swordfish handgear limited access permit, the vessel's horsepower may be increased, relative to the baseline specifications of the vessel initially issued the LAP, through refitting, replacement, or transfer. Such an increase may not exceed 20 percent of the baseline specifications of the vessel initially issued the LAP.

    (C) Subsequent to the issuance of a swordfish handgear limited access permit, the vessel's length overall, gross registered tonnage, and net tonnage may be increased, relative to the baseline specifications of the vessel initially issued the LAP, through refitting, replacement, or transfer. An increase in any of these three specifications of vessel size may not exceed 10 percent of the baseline specifications of the vessel initially issued the LAP. This type of upgrade may be done separately from an engine horsepower upgrade.

    [FR Doc. 2016-28171 Filed 11-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 160929900-6900-01] RIN 0648-XE927 Revisions to Framework Adjustment 55 to the Northeast Multispecies Fishery Management Plan AGENCY:

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

    ACTION:

    Final rule; adjustment to specifications.

    SUMMARY:

    We are reducing the 2016 fishing year Georges Bank haddock catch cap for the herring midwater trawl fishery. The reduction in the 2016 midwater trawl catch cap is necessary to account for an overage that occurred in fishing year 2015. This reduction is formulaic and is required as an accountability measure to help mitigate the 2015 overage.

    DATES:

    Effective November 23, 2016, through April 30, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Liz Sullivan, Fishery Management Specialist, (978) 282-8493.

    SUPPLEMENTARY INFORMATION:

    Framework Adjustment 55 to the Northeast (NE) Multispecies Fishery Management Plan (FMP) (May 2, 2016, 81 FR 26412) set annual catch limits for groundfish stocks for the 2016 fishing year, including allocations for the groundfish fishery and other fisheries with incidental catch of groundfish. The midwater trawl herring fishery is allocated 1 percent of the U.S. acceptable biological catch of Gulf of Maine (GOM) and Georges Bank (GB) haddock. If the herring midwater trawl fishery exceeds its GOM or GB haddock catch cap, we are required to reduce the respective catch cap by the amount of the overage in the following fishing year.

    In fishing year 2015, the midwater trawl fishery exceeded its GB haddock catch cap by 8.54 mt. Therefore, this rule reduces the fishing year 2016 GB haddock catch cap by 8.54 mt to account for this overage. Table 1 provides the midwater trawl adjustment for GB haddock that this rule implements.

    Table 1—Fishing Year 2016 Midwater Trawl Overage Adjustment (mt) Stock 2015 Overage Initial 2016 midwater
  • trawl fishery
  • catch cap
  • Adjusted 2016 midwater
  • trawl fishery
  • catch cap
  • GB haddock 8.54 521 512.46
    Classification

    The NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.

    This action is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.

    Pursuant to 5 U.S.C. 553(b)(3)(B), we find good cause to waive prior public notice and opportunity for public comment on the catch cap adjustment because allowing time for notice and comment is impracticable, unnecessary, and contrary to the public interest. We also find good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective upon publication.

    Prior notice and comment are impracticable and contrary to the public interest, because this is a non-discretionary action required by provisions of Framework 46 to the NE Multispecies FMP, which was subject to public comment. The proposed rule to implement Framework 46 requested public comment on these measures, including the specific accountability measure implemented by this rule, with the understanding that a catch cap adjustment would be required if an overage occurred. As a result, the public and industry are expecting this adjustment.

    Final 2015 catch data only recently became available in September 2016. This information allows us to determine the amount of an overage, if any, and it was not possible to finalize this information sooner. If this rule is not effective immediately, the midwater trawl fishery will be operating under an incorrect 2016 catch cap for GB haddock. This could increase the likelihood of a subsequent overage and uncertainty on when to trigger an inseason accountability measure, which in turn could cause confusion and negative economic impacts to the midwater trawl fishery. Therefore, it is important to implement the reduced catch limit as soon as possible. For these reasons, we are waiving the public comment period and delay in effectiveness for this rule, pursuant to 5 U.S.C. 553(b)(3)(B) and (d), respectively.

    A final regulatory flexibility analysis (FRFA) was previously prepared as part of the regulatory impact review of Framework 55. This minor adjustment does not change the conclusions drawn from that FRFA. The FRFA is contained in the Framework 55 final rule.

    Each item in section 604(a)(1) through (5) of the Regulatory Flexibility Act (5 U.S.C. 604(a)(1) through (5)) was addressed in the Classification section of the Framework 55 final rule.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 17, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-28175 Filed 11-22-16; 8:45 am] BILLING CODE 3510-22-P
    81 226 Wednesday, November 23, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 52 [Document Number AMS-FV-08-0076; SC-16-334] United States Standards for Grades of Frozen Onions AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    The Agricultural Marketing Service (AMS) of the Department of Agriculture (USDA) is soliciting comments on its proposal to create new United States Standards for Grades of Frozen Onions. The American Frozen Food Institute (AFFI) petitioned AMS to develop new grade standards for frozen onions. AMS has received additional industry comments on several discussion drafts of the proposed standards. The grade standards would provide a common language for trade, a means of measuring value in the marketing of frozen onions, and guidance on the effective use of frozen onions.

    DATES:

    Comments must be submitted on or before January 23, 2017.

    ADDRESSES:

    Written comments may be submitted via the Internet to http://www.regulations.gov; by email to [email protected]; by mail to Brian E. Griffin, Standardization Branch, Specialty Crops Inspection Division, Specialty Crops Program, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue SW., Room 1536, South Building; STOP 0247, Washington, DC 20250; or by fax to (202) 690-1527. All comments should reference the document number, date, and page number of this issue of the Federal Register. All comments will be posted without change, including any personal information provided. All comments submitted in response to this notice will be included in the public record and will be made available to the public on the Internet via http://www.regulations.gov. Comments will be made available for public inspection at the above address during regular business hours or can be viewed at: http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Brian E. Griffin, Agricultural Marketing Specialist, Specialty Crops Inspection Division, Specialty Crops Program, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue SW., Room 1536, South Building; STOP 0247, Washington, DC 20250; telephone (202) 720-5021; fax (202) 690-1527; or, email [email protected]. Copies of the proposed revised grade standards are published with this notice and can be viewed at http://www.regulations.gov.

    SUPPLEMENTARY INFORMATION:

    Section 203(c) of the Agricultural Marketing Act of 1946 (Act) (7 U.S.C. 1621-1627), as amended, directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade, and packaging, and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.”

    AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official grade standards available upon request. The United States Standards for Grades of Fruits and Vegetables unrelated to Federal Marketing Orders or U.S. Import Requirements no longer appear in the Code of Federal Regulations, but are maintained by USDA, AMS, Specialty Crops Program, and are available on the Internet at http://www.ams.usda.gov/scihome.

    AMS is proposing to establish U.S. Standards for Grades of Frozen Onions using the procedures in part 36, Title 7 of the Code of Federal Regulations (7 CFR part 36).

    Background: The American Frozen Food Institute (AFFI) petitioned AMS to develop new grade standards for frozen onions. AFFI is a national trade association representing the interests of U.S. frozen food processors and their suppliers in all frozen food sectors, including processors and packers of frozen onions. AFFI's more than 500 member companies represent approximately 90 percent of all frozen food processed annually in the United States. The AFFI petition provided information on product styles, sample sizes, and a product description for use in the grade standards.

    AMS asked the petitioner for various styles of samples in order to determine grades of frozen onions. AMS distributed several discussion drafts of proposed standards to AFFI, instituted changes to the drafts once agreement was reached, then published several Federal Register notices in order to receive comments from all interested parties (see 66 FR 21116, 68 FR 11801, 68 FR 27010, and 76 FR 31575).

    Comments

    AMS responded to comments received in response to the drafts as follows:

    1. AMS agreed to include stem material, sprout material, and root material as defects in the “core material” defect category for strips, diced, and other styles.

    2. AMS agreed to include an AFFI proposal to add and define dark green units with dark green stripes across 50 percent or more of the onion unit as a defect.

    3. AMS agreed to include onion units from 3/8 inch (10mm) to 7/8 inch (22mm) under the whole styles category as Type II (Pearl).

    4. In response to AFFI comments, AMS agreed to classify the style “minced” in the category of “other” styles.

    5. AFFI expressed concern that defects, as defined in the proposed section on Acceptable Quality Levels (AQLs) for quality defects, were defined by count and not by weight, and that larger units would be allowed a smaller number of defects, and that smaller units would be allowed a large number of defects. AMS agreed, and after reevaluation, based the sample size for quality defects in whole units by count (50 count), and for the styles “diced,” “strips,” and “other” by weight (450 grams). AFFI agreed with the adjusted sample sizes and AQLs.

    6. AFFI also expressed concern that the proposed AQLs allowed many more defects than current industry practices, and submitted examples of current buyers specifications to demonstrate this. AMS then modified the AQLs by reducing the number of defects allowed per hundred units to align it with current industry practices, based on the AFFI request.

    7. AMS did not modify use of 450 gram samples in response to AFFI questioning why we used 450 grams for the individual sample sizes for styles other than whole instead of 454 grams, which equals one pound. AMS responded that AQLs are based on increments of 50 units so rounding to the nearest AQL results in using 450 grams per sample unit or approximately one pound. AFFI concurred with use of 450 gram samples.

    8. In response to a request to revise the definitions of “good appearance” and “reasonably good appearance” because they were too similar, AMS added flowability, brightness, and overall appearance to the description of “reasonably good appearance,” and also added the classification and definition for “poor appearance.” AFFI agreed to the new terminology and additional classification.

    9. In response to a comment received, AMS did not include a requirement for heat treatment but added that option in the product description, by means of blanching. The revised statement is: “have been properly prepared, washed, blanched or unblanched, and then frozen in accordance with good commercial practice and maintained at temperatures necessary to preserve the product.” AFFI concurred with the revised product description.

    10. In response to AFFI comments, AMS agreed to limit the product description to “individually quick frozen” onions.

    11. In accordance with AMS' policy requiring commodities covered by U.S. grade standards to comply with all federal, state, and local laws, AMS did not include microbiological requirements, storage temperatures, shelf life requirements, and limits for chemical and pesticide residues to the proposed frozen onion grade standards. Such requirements are not typically included in the voluntary U.S. grade standards. AFFI concurred.

    12. In response to a request from AFFI members, AMS changed the proposed size descriptions for “whole” styles as follows:

    Type I from 3/4 inch (19mm) to 17/8 inch (48mm) changed to 7/8 inch (22mm) to 17/8 inch (48mm).

    Type II (Pearl) from 1/4 inch (6mm) to 7/8 inch (22mm) changed to 3/8 inch (10mm) to 7/8 inch (22mm).

    13. In reponse to an AFFI member's comment to the AMS' Federal Register notice published on June 1, 2011 (76 FR 31575), AMS revised the Defect Tables and Definitions of the proposed standards. The AFFI member, a major processor and distributor of strips and diced styles of frozen onions, agreed with most of the proposal, but provided additional suggestions concerning whole, strips, diced, and other styles containing crown material defects in its comments. The member also suggested additional provisions for defects, such as core material, sprouts, seed stems, and root material; and, suggested that portions of root crown exceeding 3/8 inch (10 mm) in diameter be listed in a separate category. AMS agreed and revised Defect Tables I (whole style) and II (strips, diced, and other styles) of the proposed grade standards and definitions to include major and minor defects in core material, to include root crown, with dimensions listed accordingly.

    AMS sent a discussion draft of the proposed standards to AFFI members for concurrence. AMS received confirmation in November 2015 that AFFI members agreed with the changes, and had no additional comments.

    Conclusions

    These proposed standards would establish the grade levels “A,” “B,” and “Substandard,” as well as proposed AQL tolerances and acceptance numbers for each quality factor as defined for each grade level.

    AMS used the standard format for U.S. standards for grades using “individual attributes.” Specifically, the proposed grade standards would provide for tolerance limits for defects; acceptance numbers of allowable defects with single letter grade designation based on a specified number or weight of sample units; a product description for frozen onions; and, style designations for “whole,” “strips,” “diced,” and “other” styles. The proposal also would define quality factors, AQLs, and tolerances for defects in frozen onions, and determine sample unit sizes for this commodity. The grade of a sample unit of frozen onions would be ascertained considering the factors of varietal characteristics, color, flavor and odor, appearance, absence of grit or dirt, defects, and character.

    These voluntary grade standards would provide a common language for trade, a means of measuring value in marketing, and guidance in the effective use of frozen onions.

    The official grade of a lot of frozen onions covered by these standards would be determined by the procedures set forth in the Regulations Governing Inspection and Certification of Processed Fruits and Vegetables, Processed Products Thereof, and Certain Other Processed Food Products (7 CFR 52.1 to 52.83).

    AMS is publishing this notice with a 60-day comment period that will provide a sufficient amount of time for interested persons to comment on the proposed new grade standards for frozen onions.

    Authority:

    7 U.S.C. 1621-1627

    Dated: November 18, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-28255 Filed 11-22-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 966 [Doc. No. AMS-SC-16-0088; SC16-966-1 PR] Tomatoes Grown in Florida; Increased Assessment Rate AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would implement a recommendation from the Florida Tomato Committee (Committee) to increase the assessment rate established for the 2016-17 and subsequent fiscal periods from $0.03 to $0.035 per 25-pound carton of tomatoes handled under the marketing order (order). The Committee locally administers the order and is comprised of producers of tomatoes operating within the area of production. Assessments upon Florida tomato handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period begins August 1 and ends July 31. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.

    DATES:

    Comments must be received by December 8, 2016.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. Comments should reference the document number and the date and page number of this issue of the Federal Register and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this proposed rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the Internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Steven W. Kauffman, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: [email protected] or [email protected].

    Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202)720-8938, or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This proposed rule is issued under Marketing Agreement No. 125 and Order No. 966, both as amended (7 CFR part 966), regulating the handling of tomatoes grown in Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

    The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Florida tomato handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable Florida tomatoes beginning on August 1, 2016, and continue until amended, suspended, or terminated.

    The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

    This proposed rule would increase the assessment rate established for the Committee for the 2016-17 and subsequent fiscal periods from $0.03 to $0.035 per 25-pound carton of tomatoes.

    The Florida tomato marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers of Florida tomatoes. They are familiar with the Committee's needs and with the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

    For the 2015-16 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate of $0.03 per 25-pound carton of tomatoes that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

    The Committee met on August 16, 2016, and unanimously recommended 2016-17 expenditures of $1,494,600 and an assessment rate of $0.035 per 25-pound carton of tomatoes. In comparison, last year's budgeted expenditures were $1,513,177. The assessment rate of $0.035 is $0.005 higher than the rate currently in effect. At the current assessment rate, assessment income would equal only $990,000, an amount insufficient to cover the Committee's anticipated expenditures of $1,494,600. The Committee considered the proposed expenses and recommended increasing the assessment rate.

    The major expenditures recommended by the Committee for the 2016-17 year include $450,000 for salaries, $400,000 for research, and $400,000 for education and promotion. Budgeted expenses for these items in 2015-16 were $435,377, $400,000, and $400,000, respectively.

    The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Florida tomatoes. Florida tomato shipments for the 2016-17 year are estimated at 33 million 25-pound cartons, which should provide $1,155,000 in assessment income. Income derived from handler assessments, along with interest income, block grants, and funds from the Committee's authorized reserve, would be adequate to cover budgeted expenses. Funds in the reserve (approximately $999,361) would be kept within the maximum permitted by the order of no more than approximately one fiscal period's expenses as stated in § 966.44.

    The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

    Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public, and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2016-17 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

    Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

    There are approximately 100 producers of tomatoes in the production area and approximately 80 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

    Based on industry and Committee data, the average annual price for fresh Florida tomatoes during the 2015-16 season was approximately $11.27 per 25-pound carton, and total fresh shipments were approximately 28.2 million cartons. Using the average price and shipment information, number of handlers, and assuming a normal distribution, the majority of handlers have average annual receipts below $7,500,000. In addition, based on production data, an estimated grower price of $6.25, and the total number of Florida tomato growers, the average annual grower revenue is above $750,000. Thus, a majority of the handlers of Florida tomatoes may be classified as small entities while a majority of the producers may be classified as large entities.

    This proposal would increase the assessment rate established for the Committee and collected from handlers for the 2016-17 and subsequent fiscal periods from $0.03 to $0.035 per 25-pound carton of tomatoes. The Committee unanimously recommended 2016-17 expenditures of $1,494,600 and an assessment rate of $0.035 per 25-pound carton handled. The proposed assessment rate of $0.035 is $.005 higher than the 2015-16 rate. The quantity of assessable tomatoes for the 2016-17 season is estimated at 33 million 25-pound cartons. Thus, the $0.035 rate should provide $1,155,000 in assessment income. Income derived from handler assessments, along with funds from interest income, MAP funds, and block grants, should provide sufficient funds to meet this year's anticipated expenses.

    The major expenditures recommended by the Committee for the 2016-17 year include $450,000 for salaries, $400,000 for research, and $400,000 for education and promotion. Budgeted expenses for these items in 2015-16 were $435,377, $400,000, and $400,000, respectively.

    At the current assessment rate, assessment income would equal only $990,000, an amount insufficient to cover the Committee's anticipated expenditures of $1,494,600. The Committee considered the proposed expenses and recommended increasing the assessment rate.

    Prior to arriving at this budget and assessment rate, the Committee considered information from various sources, such as the Committee's Executive Subcommittee, Research Subcommittee, and Education and Promotion Subcommittee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various activities to the tomato industry. The Committee determined that 2016-17 expenditures of $1,494,600 were appropriate, and the recommended assessment rate, along with funds from interest income, block grants, and funds from reserves, would be adequate to cover budgeted expenses.

    A review of historical information and preliminary information pertaining to the upcoming crop year indicates that the average grower price for the 2016-17 season could be approximately $6.50 per 25-pound carton of tomatoes. Therefore, the estimated assessment revenue for the 2016-17 crop year as a percentage of total grower revenue would be approximately 0.5 percent.

    This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the marketing order.

    The Committee's meeting was widely publicized throughout the Florida tomato industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 16, 2016, meeting was a public meeting, and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178 Vegetable and Specialty Crops. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

    This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large Florida tomato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

    AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    A 15-day comment period is provided to allow interested persons to respond to this proposed rule. Fifteen days is deemed appropriate because: (1) The 2016-17 fiscal period began on August 1, 2016, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable Florida tomatoes handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.

    List of Subjects in 7 CFR Part 966

    Marketing agreements, Reporting and recordkeeping requirements, Tomatoes.

    For the reasons set forth in the preamble, 7 CFR part 966 is proposed to be amended as follows:

    PART 966—TOMATOES GROWN IN FLORIDA 1. The authority citation for 7 CFR part 966 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. Section 966.234 is revised to read as follows:
    § 966.234 Assessment rate.

    On and after August 1, 2016, an assessment rate of $0.035 per 25-pound carton is established for Florida tomatoes.

    Dated: November 18, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-28259 Filed 11-22-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 1150, 1160, 1205, 1206, 1207, 1208, 1209, 1210, 1212, 1214, 1215, 1216, 1217, 1218, 1219, 1222, 1230, 1250, and 1260 [Document Number AMS-DA-16-0101] Provisions for Removing Commodity Research and Promotion Board Members and Staff AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposal would amend the research and promotion orders—or the regulations under the orders—overseen by the Agricultural Marketing Service (AMS) to provide uniform authority for the removal of board members and staff who fail to perform their duties or who engage in dishonest actions or willful misconduct. The removal provisions in 13 of the orders would be modified to allow the U.S. Department of Agriculture (USDA) to take action necessary to ensure the boards can continue to fulfill their intended purposes with minimal disruption. Removal provisions would be added to the six orders that do not currently provide for such action.

    DATES:

    Comments must be received by December 8, 2016.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposed rule. Comments may be submitted on the internet at: http://www.regulations.gov. Written comments may also be sent to Laurel L. May, Senior Marketing Specialist, Order Formulation and Enforcement Division, USDA/AMS/Dairy Program, 1400 Independence Avenue SW., Room 2967-S—Stop 0231, Washington, DC 20250-0231; facsimile: 202-690-0552. All comments should reference the document number and the date and page number of this issue of the Federal Register, and will be made available for public inspection in the above office during regular business hours, or may be viewed at: http://www.regluations.gov. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Laurel L. May, Senior Marketing Specialist, USDA/AMS/Dairy Program, telephone 202-690-1366, or email [email protected]; or Whitney Rick, Director; Promotion, Research, and Planning Division; USDA/AMS/Dairy Program; telephone 202-720-6961; or email [email protected]

    SUPPLEMENTARY INFORMATION:

    This proposed rule is issued under 19 of the commodity research and promotion orders established under the following acts: Beef Promotion and Research Act of 1985 (7 U.S.C. 2901-2911); Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7411-7425); Cotton Research and Promotion Act of 1966 (7 U.S.C. 2101-2118); Dairy Production Stabilization Act of 1983 (7 U.S.C. 4501-4514); Egg Research and Consumer Information Act of 1974 (7 U.S.C. 2701-2718); Fluid Milk Promotion Act of 1990 (7 U.S.C. 6401-6417); Hass Avocado Promotion, Research, and Information Act of 2000 (U.S.C. 7801-7813); Mushroom Promotion, Research, and Consumer Information Act of 1990 (7 U.S.C. 6101-6112); Popcorn Promotion, Research, and Consumer Information Act of 1996 (7 U.S.C. 7481-7491); Pork Promotion, Research, and Consumer Information Act of 1985 (7 U.S.C. 4801-4819); Potato Research and Promotion Act of 1971 (7 U.S.C. 2611-2627); and Watermelon Research and Promotion Act (7 U.S.C. 4901-4916). These acts are collectively referred to as “commodity research and promotion laws” or “acts.”

    The preceding acts provide that administrative proceedings must be exhausted before parties may file suit in court. Under those acts, any person subject to an order may file a petition with the Secretary of Agriculture (Secretary) stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with laws and request a modification of the order or to be exempted therefrom. The petitioner is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary will make a ruling on the petition. The acts provide that the district courts of the United States in any district in which the person is an inhabitant, or has his or her principal place of business, has the jurisdiction to review the Secretary's rule, provided a complaint is filed within 20 days from the date of the entry of the ruling. There are no administrative proceedings that must be exhausted prior to any judicial challenge to the provision of the Beef Promotion and Research Act of 1985.

    Executive Order 12866 and Executive Order 13563

    USDA is issuing this proposed rule in conformance with Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has waived the review process.

    Executive Order 13175

    This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.

    Executive Order 12988 Beef Promotion and Research Act of 1985

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 11 of the Beef Promotion and Research Act of 1985 (7 U.S.C. 2910) provides that it shall not preempt or supersede any other program relating to beef promotion organized and operated under the laws of the United States or any State.

    Commodity Promotion, Research, and Information Act of 1996

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

    Cotton Research and Promotion Act of 1966

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. The proposed rule is not intended to have retroactive effect.

    Dairy Production Stabilization Act of 1983

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. The proposed rule is not intended to have retroactive effect. Section 1221 of the Dairy Production Stabilization Act of 1983 provides that nothing in this Act may be construed to preempt or superseded any other program relating to dairy product promotion organized and operated under the laws of the United States or any State.

    Egg Research and Consumer Information Act of 1974

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. The proposed rule is not intended to have retroactive effect.

    Fluid Milk Promotion Act of 1990

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. The proposed rule is not intended to have retroactive effect.

    Hass Avocado Promotion, Research, and Information Act of 2000

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 1212(c) of the Hass Avocado Promotion, Research, and Information Act of 2000 (7 U.S.C. 7811) provides that nothing in this Act may be construed to preempt or supersede any program relating to Hass avocado promotion, research, industry information, and consumer information organized and operated under the laws of the United States or of a State.

    Mushroom Promotion, Research, and Consumer Information Act of 1990

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 1930 of the Mushroom Promotion, Research, and Information Act of 1990 (7 U.S.C. 6109) provides that nothing in this Act may be construed to preempt or supersede any program relating to mushroom promotion, research, industry information, and consumer information organized and operated under the laws of the United States or of a State.

    Popcorn Promotion, Research, and Consumer Information Act of 1996

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 580 of the Popcorn Promotion, Research, and Information Act of 1996 (7 U.S.C. 7489) provides that nothing in this Act may be construed to preempt or supersede any program relating to popcorn promotion organized and operated under the laws of the United States or of a State.

    Potato Research and Promotion Act of 1971

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.

    Pork Promotion, Research, and Consumer Information Act of 1985

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 1628 of the Pork Promotion, Research, and Consumer Information Act of 1985 (7 U.S.C. 4817) states that the statute is intended to occupy the field of promotion and consumer education involving pork and pork products and of obtaining funds thereof from pork producers. The regulation of such activity (other than a regulation or requirements relating to a matter of public health or the provision of State or local funds for such activity) that is in addition to or different from the Pork Act may not be imposed by a State.

    Watermelon Research and Promotion Act

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.

    Proposed Rule

    USDA is proposing amendments to the orders and/or rules and regulations for 19 of the 22 national commodity research and promotion programs overseen by AMS. Each of the programs is administered by a board or council comprised of industry stakeholders, who are appointed by the Secretary to chart the course of the promotion and research activities undertaken by each commodity research and promotion program. The boards and councils hire staffs to carry out the day-to-day business operations of the programs. The proposed amendments would establish uniform provisions across all the programs for removing board and council members and their employees as necessary to preserve program integrity.

    Currently, 16 of AMS's 22 research and promotion programs specify provisions for removing board and council members or their staff employees when they are unwilling or unable to perform their duties properly or when they engage in prohibited or illegal activities or other willful misconduct. Some of the programs require the board or council to first make a recommendation for removal to the Secretary, who then determines whether such action is appropriate. Six of the programs include no removal provisions.

    The need to remove board and council members and staff from service is infrequent; but situations do arise that require immediate AMS action to ensure program integrity is maintained and to mitigate damage from illegal or inappropriate behavior. Examples of such situations include, but are not limited to, those occasions when board or council members find that they cannot commit enough time to board or council business and are unable to consistently attend meetings or fulfill program assignments. In such cases, it may be difficult for the board or council to meet quorum requirements or make urgent business decisions. In other situations, board or council members or their employees might violate program policies regarding lobbying and influencing government action or policy or violate anti-discrimination, anti-harassment, or anti-trust laws, all of which impede program integrity and the ability to conduct normal business. Board or council members or their employees might mishandle program funds or commit other dishonest acts injurious to all program participants. In each case, the Secretary must have the ability to initiate removal actions, applying consistent criteria and procedures across all programs. Improved AMS oversight would ensure these industry boards and councils can continue to fulfill their appointed purposes.

    Currently, three of AMS's research and promotion orders (for soybeans, sorghum, and lamb) contain identical language related to removing board and council members and staff that would be appropriate for use in the other 19 programs. The language authorizes the Secretary to initiate removal action against any person (board or council member or employee) for failure or refusal to perform his or her duties properly or for engaging in acts of dishonesty or willful misconduct. The Secretary is authorized to remove that person if the he or she determines that person's continued service would be detrimental to the purposes of the act under which the program is established.

    This proposed rule would amend 11 of the orders by replacing current provisions with the language used in the soybean, sorghum, and lamb orders, to provide identical authority for the Secretary to take appropriate removal action when necessary to preserve program integrity. Specifically, the following sections in each order would be amended:

    Mango Promotion, Research, and Information Order § 1206.33(b). Processed Raspberry Promotion, Research, and Information Order § 1208.43(b). Mushroom Promotion, Research, and Consumer Information Order § 1209.35(c). Honey Packers and Importers Research, Promotion, Education and Information Order § 1212.43(b). Christmas Tree Promotion, Research, and Information Order § 1214.43(b). Popcorn Promotion, Research, and Consumer Information Order § 1215.26. Softwood Lumber Research, Promotion, Consumer Education, and Industry Information Order § 1217.43(b). Blueberry Promotion, Research and Information Order § 1218.43(b). Paper and Paper-Based Packaging Promotion, Research, and Information Order § 1222.43(a). Pork Promotion, Research, and Consumer Information Order §§ 1230.35 and 1230.55. Beef Promotion and Research Order § 1260.213.

    Additionally, this proposed rule would suspend the current removal authority under two orders. The language proposed for use in all the other orders, as currently provided in the orders for soybeans, sorghum, and lamb, would be added to the rules and regulations under the three orders to provide identical authority for the Secretary to take appropriate removal action when necessary to preserve program integrity. Specifically, new regulations would be added to replace language suspended in the following sections:

    Watermelon Research and Promotion Plan § 1210.324(b) Hass Avocado Promotion, Research and Information Order § 1219.36(b)

    Finally, this proposed rule would add removal authority to the six orders or the rules and regulations under the orders that do not currently specify such provisions. The language proposed for use in all the other orders, as currently provided in the orders for soybeans, sorghum, and lamb, would be added to provide identical authority for the Secretary to take appropriate removal action when necessary to preserve program integrity. Specifically, removal language would be added to each of the following:

    Dairy Promotion and Research Order § 1150.136. National Fluid Milk Processor Promotion Order § 1160.25. Cotton Research and Promotion—Cotton Board Rules and Regulations § 1205.506 (new). Potato Research and Promotion Plan § 1207.324. Peanut Promotion, Research, and Information Order § 1216.44. Egg Research and Promotion Order § 1250.331.

    This proposed rule is intended to strengthen AMS's oversight of the commodity research and promotion programs to protect the interests of the regulated industries. The proposed removal language to be applied to all of the orders would not preclude the ability of the boards or councils to initiate action to remove members if they become aware of situations requiring such action. Nevertheless, board or council recommendations regarding removals would not be required for AMS to take action, as they currently are under some of the orders. AMS would be able to take immediate action to investigate possible violations of order provisions, policies, and laws without waiting for a formal request to do so from the board or council. AMS would also be able to apply consistent criteria for board or council member removal across all the programs as necessary to ensure program integrity.

    Initial Regulatory Flexibility Act Analysis

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of this proposed rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Accordingly, AMS has considered the economic impact of this action on small entities and has prepared this initial regulatory flexibility analysis.

    Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

    Research and promotion programs established under the various commodity research and promotion acts, and the rules and regulations issued thereunder, are uniquely brought about through group action of essentially small entities acting on their own behalf. The boards and councils that administer the programs are largely comprised of producers, handlers, processors, manufacturers, and importers of the regulated commodities, who are nominated by their industries and selected by the Secretary to recommend, plan, and conduct generic promotion and research projects that will benefit all industry members, regardless of size.

    In most cases, board and council members are nominated by their peers in specific regions or states where the commodity is produced to represent those areas. Some programs may provide for board or council representation according to the member's production volume. Every effort is made to ensure that boards and councils are composed of diverse members of all business sizes in order to assure proper representation of all segments of the regulated industries. Thus, across the 19 boards and councils that would be affected by this proposed rule, there are any number of large or small entities serving as members at any one time.

    This rule is intended to facilitate the removal of individual board and council members, or employees of the boards and councils, who are no longer able to perform their duties or who have engaged in dishonest acts or other willful misconduct. The proposed removal criteria and procedures would pertain to the removal of any board or council member, regardless of the size of the business entity they represent, or any employee of the boards or councils, whose continued service would be detrimental to the programs.

    No negative or disproportionate impacts on large or small entities are anticipated in connection with this proposed rule. The positive impacts, which are expected to accrue to all industry members, both large and small, are improved AMS oversight of the commodity research and promotion programs and the improved integrity and effectiveness of those programs, which are designed to benefit all commodity producers, handlers, importers, and consumers, regardless of size.

    AMS considered alternatives to this proposed rule, including variations to the removal provision language to be applied to all the orders, or doing nothing at all. After consideration, AMS opted to propose the provision language that would give the boards, councils, and the Secretary the ability to initiate and carry out removal proceedings when necessary. The proposal would also allow AMS to apply uniform oversight across all programs. In this way, AMS would be able to provide more effective oversight of the 22 commodity research and promotion programs.

    This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large entities. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements of the 19 affected commodity research and promotion programs (7 CFR parts 1150, 1160, 1205, 1206, 1207, 1208, 1209, 1210, 1212, 1214, 1215, 1216, 1217, 1218, 1219, 1222, 1230, 1250, and 1260) have previously been approved by the Office of Management and Budget (OMB) under those orders. All reports and forms used in the AMS research and promotion programs are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

    AMS is committed to complying with the E-Government act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    Interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

    While this proposed rule has not received the approval of USDA, it has been determined that it is consistent with and would effectuate the purposes of the Commodity Promotion, Research, and Information Act of 1996, for the programs to which the Act is applicable.

    A 15-day comment period for the proposed rule is provided to allow interested persons to submit written comments on the proposed changes to the provisions for removing research and promotion board and council members, or board and council employees, from service. All comments timely received will be considered before a final determination is made on this matter.

    List of Subjects 7 CFR Part 1150

    Administrative practice and procedure, Dairy products, Reporting and recordkeeping requirements, Research.

    7 CFR Part 1160

    Administrative practice and procedure, Fluid milk products, Promotion, Reporting and recordkeeping requirements.

    7 CFR Part 1205

    Administrative practice and procedure, Advertising, Agricultural research, Cotton, Reporting and recordkeeping requirements.

    7 CFR Part 1206

    Administrative practice and procedure, Advertising, Agricultural research, Mango, Marketing agreements, Reporting and recordkeeping requirements.

    7 CFR Part 1207

    Advertising, Agricultural research, Imports, Potatoes, Reporting and recordkeeping requirements.

    7 CFR Part 1208

    Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Raspberry promotion, Reporting and recordkeeping requirements.

    7 CRF Part 1209

    Administrative practice and procedure, Advertising, Agricultural research, Imports, Mushrooms, Reporting and recordkeeping requirements.

    7 CRF Part 1210

    Administrative practice and procedure, Advertising, Agricultural research, Reporting and recordkeeping requirements, Watermelons.

    7 CFR Part 1212

    Administrative practice and procedure, Advertising, Consumer education, Honey and honey products, Marketing agreements, Promotion, Reporting and recordkeeping requirements.

    7 CFR Part 1214

    Administrative practice and procedure, Advertising, Christmas trees, promotion, Consumer information, Marketing agreements, Reporting and recordkeeping requirements.

    7 CFR Part 1215

    Administrative practice and procedure, Advertising, Agricultural research, Popcorn, Reporting and recordkeeping requirements.

    7 CFR Part 1216

    Administrative practice and procedure, Advertising, Agricultural research, Peanuts, Reporting and recordkeeping requirements.

    7 CFR Part 1217

    Administrative practice and procedure, Advertising, Consumer Information, Marketing agreements, Promotion, Reporting and recordkeeping requirements, Softwood lumber.

    7 CFR Part 1218

    Administrative practice and procedure, Advertising, Agricultural research, Blueberries, Reporting and recordkeeping requirements.

    7 CFR Part 1219

    Administrative practice and procedure, Advertising, Agricultural research, Hass avocados, Reporting and recordkeeping requirements.

    7 CFR Part 1222

    Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Paper and paper-based packaging promotion, Reporting and recordkeeping requirements.

    7 CFR Part 1230

    Administrative practice and procedure, Advertising, Agricultural research, Marketing agreements, Pork and pork products, Reporting and recordkeeping requirements.

    7 CFR Part 1250

    Administrative practice and procedure, Advertising, Agricultural research, Eggs and egg products, Reporting and recordkeeping requirements.

    7 CFR Part 1260

    Administrative practice and procedure, Advertising, Agricultural research, Imports, Marketing agreements, Meat and meat products, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR parts 1150, 1160, 1205, 1206, 1207, 1208, 1209, 1210, 1212, 1214, 1215, 1216, 1217, 1218, 1219, 1222, 1230, 1250, and 1260 are proposed to be amended as follows:

    PART 1150—DAIRY PROMOTION PROGRAM 1. The authority citation for 7 CFR part 1150 continues to read as follows: Authority:

    7 U.S.C. 4501-4514 and 7 U.S.C. 7401.

    2. In § 1150.136, redesignate the introductory text as paragraph (a), and add a new paragraph (b) to read as follows:
    § 1150.136 Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1160—FLUID MILK PROMOTION PROGRAM 3. The authority citation for 7 CFR part 1160 continues to read as follows: Authority:

    7 U.S.C. 6401-6417 and 7 U.S.C. 7401.

    4. In § 1160.205, redesignate the introductory text as paragraph (a), and add a new paragraph (b) to read as follows:
    § 1160.205 Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1205—COTTON RESEARCH AND PROMOTION 5. The authority citation for 7 CFR part 1205 continues to read as follows: Authority:

    7 U.S.C. 2101-2118.

    6. Add § 1205.506 under the undesignated center heading “General” in the Subpart—Cotton Board Rules and Regulations to read as follows:
    § 1205.506 Removal.

    If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1206—MANGO PROMOTION, RESEARCH, AND INFORMATION 7. The authority citation for 7 CFR part 1206 continues to read as follows: Authority:

    7 U.S.C. 7411-7425 and 7 U.S.C. 7401.

    8. In § 1206.33, revise paragraph (b) to read as follows:
    § 1206.33 Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1207—POTATO RESEARCH AND PROMOTION PLAN 9. The authority citation for 7 CFR part 1207 continues to read as follows: Authority:

    7 U.S.C. 2611-2627 and 7 U.S.C. 7401.

    10. In § 1207.324, redesignate the introductory text as paragraph (a), and add a new paragraph (b) to read as follows:
    § 1207.324 Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1208—PROCESSED RASPBERRY PROMOTION, RESEARCH, AND INFORMATION ORDER 11. The authority citation for 7 CFR part 1208 continues to read as follows: Authority:

    7 U.S.C. 7411-7425; 7 U.S.C. 7404.

    12. In § 1208.43, revise paragraph (b) to read as follows:
    § 1208.43 Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Council may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1209—MUSHROOM PROMOTION, RESEARCH, AND CONSUMER INFORMATION ORDER 13. The authority citation for 7 CFR part 1209 continues to read as follows: Authority:

    7 U.S.C. 6101-6112 and 7 U.S.C. 7401.

    14. In § 1209.35, revise paragraph (c) to read as follows:
    § 1209.35 Vacancies.

    (c) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Council may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1210—WATERMELON RESEARCH AND PROMOTION PLAN 15. The authority citation for 7 CFR part 1210 continues to read as follows: Authority:

    7 U.S.C. 4901-4916 and 7 U.S.C. 7401.

    16. In § 1210.324, suspend paragraph (b) indefinitely. 17. Add § 1210.503 under the undesignated center heading “General” in Subpart C—Rules and Regulations to read as follows:
    § 1210.503 Removal.

    If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1212—HONEY PACKERS AND IMPORTER RESEARCH, PROMOTION, CONSUMER EDUCATION AND INDUSTRY INFORMATION ORDER 18. The authority citation for 7 CFR part 1212 continues to read as follows: Authority:

    7 U.S.C. 7411-7425; 7 U.S.C. 7401.

    19. In § 1212.43, revise paragraph (b) to read as follows:
    § 1212.43 Removal and Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1214—CHRISTMAS TREE PROMOTION, RESEARCH, AND INFORMATION ORDER 20. The authority citation for 7 CFR part 1214 continues to read as follows: Authority:

    7 U.S.C. 7411—7425; 7 U.S.C. 7401.

    21. In § 1214.43, revise paragraph (b) to read as follows:
    § 1214.43 Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1215—POPCORN PROMOTION, RESEARCH, AND CONSUMER INFORMATION 22. The authority citation for 7 CFR part 1215 continues to read as follows: Authority:

    7 U.S.C. 7481-7491 and 7 U.S.C. 7401.

    23. Revise § 1215.26 to read as follows:
    § 1215.26 Removal.

    If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1216—PEANUT PROMOTION, RESEARCH, AND INFORMATION ORDER 24. The authority citation for 7 CFR part 1216 continues to read as follows: Authority:

    7 U.S.C. 7411-7425 and 7 U.S.C. 7401.

    25. In § 1216.44, redesignate the introductory text as paragraph (a), and add paragraph (b) to read as follows:
    § 1216.44 Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1217—SOFTWOOD LUMBER RESEARCH, PROMOTION, CONSUMER EDUCATION, AND INDUSTRY INFORMATION ORDER 26. The authority citation for 7 CFR part 1217 continues to read as follows: Authority:

    7 U.S.C. 7411-7425; 7 U.S.C. 7401.

    27. In § 1217.43, revise paragraph (b) to read as follows:
    § 1217.43 Removal and Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1218—BLUEBERRY PROMOTION, RESEARCH, AND INFORMATION ORDER 28. The authority citation for 7 CFR part 1218 continues to read as follows: Authority:

    7 U.S.C. 7411-7425 and 7 U.S.C. 7401.

    28. In § 1218.43, revise paragraph (b) to read as follows:
    § 1218.43 Vacancies.

    (b) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Council may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1219—HASS AVOCADO PROMOTION, RESEARCH, AND INFORMATION 29. The authority citation for 7 CFR part 1219 continues to read as follows: Authority:

    7 U.S.C. 7801-7813 and U.S.C. 7401.

    30. In § 1219.36, suspend paragraph (b) indefinitely. 31. Add § 1219.204 under Subpart C—Rules and Regulations to read as follows:
    § 1219.204 Removal.

    If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1222—PAPER AND PAPER-BASED PACKAGING PROMOTION, RESEARCH AND INFORMATION ORDER 32. The authority citation for 7 CFR part 1222 continues to read as follows: Authority:

    7 U.S.C. 7411-7425; 7 U.S.C. 7401.

    33. In § 1222.43, revise paragraph (a) to read as follows:
    § 1222.43 Removal and vacancies.

    (a) If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1230—PORK PROMOTION, RESEARCH, AND CONSUMER INFORMATION 34. The authority citation for 7 CFR part 1230 continues to read as follows: Authority:

    7 U.S.C. 4801-4819 and 7 U.S.C. 7401.

    35. Add § 1230.40, to read as follows:
    § 1230.40 Removal.

    If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    36. Add § 1230.59, to read as follows:
    § 1230.59 Removal.

    If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1250—EGG RESEARCH AND PROMOTION 37. The authority citation for 7 CFR part 1250 continues to read as follows: Authority:

    7 U.S.C. 2701-2718 and 7 U.S.C. 7401.

    38. Add § 1250.511 under the undesignated section heading “General” in Subpart—Rules and Regulations to read as follows:
    § 1250.511 Removal.

    If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    PART 1260—BEEF PROMOTION AND RESEARCH 39. The authority citation for 7 CFR part 1260 continues to read as follows: Authority:

    7 U.S.C. 2901-2911 and 7 U.S.C. 7401.

    40. Revise § 1260.213 to read as follows:
    § 1260.213 Removal.

    If the Secretary determines that any person appointed under this part fails or refuses to perform his or her duties properly or engages in acts of dishonesty or willful misconduct, the Secretary shall remove the person from office. A person appointed under this part or any employee of the Board or Committee may be removed by the Secretary if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act.

    Dated: November 16, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-28050 Filed 11-22-16; 8:45 am] BILLING CODE 3410-02-P