Federal Register Vol. 82, No.121,

This final rule is issued under Marketing Agreement and Order No. 930, both as amended (7 CFR part 930), regulating the handling of tart cherries produced in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin, 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 rule in conformance with Executive Orders 13563 and 13175.

This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) has exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order provisions now in effect, free and restricted percentages may be established for tart cherries handled during the crop year. This final rule establishes free and restricted percentages for tart cherries for the 2016-17 crop year, beginning July 1, 2016, through June 30, 2017.

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.

This final rule establishes free and restricted percentages for the 2016-17 crop year. This rule establishes the proportion of tart cherries from the 2016 crop which may be handled in commercial outlets at 71 percent free and 29 percent restricted. This action should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns. The carry-out and the final percentages were recommended by the Cherry Industry Administrative Board (Board) at a meeting on September 8, 2016.

Section 930.51(a) of the order provides authority to regulate volume by designating free and restricted percentages for any tart cherries acquired by handlers in a given crop year. Section 930.50 prescribes procedures for computing an optimum supply based on sales history and for calculating these free and restricted percentages. Free percentage volume may be shipped to any market, while restricted percentage volume must be held by handlers in a primary or secondary reserve, or be diverted or used for exempt purposes as prescribed in §§ 930.159 and 930.162 of the regulations. Exempt purposes include, in part, the development of new products, sales into new markets, the development of export markets, and charitable contributions. Sections 930.55 through 930.57 prescribe procedures for inventory reserve. For cherries held in reserve, handlers would be responsible for storage and would retain title of the tart cherries.

Under § 930.52, only those districts with an annual average production over the prior three years of at least six million pounds are subject to regulation, and any district producing a crop which is less than 50 percent of its annual average of the previous five years is exempt. The regulated districts for the 2016-17 crop year are: District 1—Northern Michigan; District 2—Central Michigan; District 3—Southern Michigan; District 4—New York; District 7—Utah; District 8—Washington; and District 9—Wisconsin. Districts 5 and 6 (Oregon and Pennsylvania, respectively) are not regulated for the 2016-17 season.

Demand for tart cherries and tart cherry products tends to be relatively stable from year to year. Conversely, annual tart cherry production can vary greatly. In addition, tart cherries are processed and can be stored and carried over from crop year to crop year, further impacting supply. As a result, supply and demand for tart cherries are rarely in balance.

Because demand for tart cherries is inelastic, total sales volume is not very responsive to changes in price. However, prices are very sensitive to changes in supply. As such, an oversupply of cherries can have a sharp negative effect on prices, driving down grower returns. The Board, aware of this economic relationship, focuses on using the volume control provisions in the order to balance supply and demand to stabilize industry returns.

Pursuant to § 930.50 of the order, the Board meets on or about July 1 to review sales data, inventory data, current crop forecasts and market conditions for the upcoming season and, if necessary, to recommend preliminary free and restricted percentages if anticipated supply would exceed demand. After harvest is complete, but no later than September 15, the Board meets again to update its calculations using actual production data, consider any necessary adjustments to the preliminary percentages, and determine if final free and restricted percentages should be recommended to the Secretary.

The Board uses sales history, inventory, and production data to determine whether there is a surplus, and if so, how much volume should be restricted to maintain optimum supply. The optimum supply represents the desirable volume of tart cherries that should be available for sale in the coming crop year. Optimum supply is defined as the average free sales of the prior three years plus desirable carry-out inventory. Desirable carry-out is the amount of fruit needed by the industry to be carried into the succeeding crop year to meet market demand until the new crop is available. Desirable carry-out is set by the Board after considering market circumstances and needs. Section 930.151(b) specifies that desirable carry-out can range from zero to a maximum of 100 million pounds.

In addition, USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (http://www.ams.usda.gov/publications/content/1982-guidelines-fruit-vegetable-marketing-orders) specify that 110 percent of recent years' sales should be made available to primary markets each season before recommendations for volume regulation are approved. This requirement is codified in § 930.50(g) of the order, which specifies that, in years when restricted percentages are established, the Board shall make available tonnage equivalent to an additional 10 percent of the average sales of the prior three years for market expansion (market growth factor).

After the Board determines optimum supply, desirable carry-out, and market growth factor, it must examine the current year's available volume to determine whether there is an oversupply situation. Available volume includes carry-in inventory (any inventory available at the beginning of the season) along with that season's production. If production is greater than the optimum supply minus carry-in, the difference is considered surplus. This surplus tonnage is divided by the sum of production in the regulated districts to reach a restricted percentage. This percentage must be held in reserve or used for approved diversion activities, such as exports.

The Board met on June 23, 2016, and computed an optimum supply of 287 million pounds for the 2016-17 crop year using the average of free sales for the three previous seasons and a desirable carry-out of 57 million pounds. The Board determined three months of sales would be a good estimate for what was needed at the end of the season, as there is a three-month gap between the calculation of carry-out at the end of one season and the availability of fruit in the next season. The recommended carry-out of 57 million pounds is approximately a quarter of average annual sales.

The Board then subtracted the estimated carry-in of 81.3 million pounds from the optimum supply to calculate the production needed from the 2016-17 crop to meet optimum supply. This number, 205.7 million pounds, was subtracted from the Board's estimated 2016-17 production of 351.3 million pounds to calculate a surplus of 145.6 million pounds of tart cherries. The Board also complied with the market growth factor requirement by adding 23 million pounds (average sales for prior three years of 230 million times 10 percent) to the free supply. The surplus minus the market growth factor was then divided by the expected production in the regulated districts (348 million pounds) to reach a preliminary restricted percentage of 35 percent for the 2016-17 crop year.

The Board then discussed whether this calculation would provide sufficient supply to grow sales while being able to supply orders that are already scheduled, including filling remaining orders from a USDA purchase made the previous season. The Board, after considering anticipated supply needs for the 2016-17 season, decided to make an economic adjustment of 22 million pounds to increase the available supply of tart cherries. This economic adjustment further reduced the preliminary surplus to 100.6 million pounds. After these adjustments, the preliminary restricted percentage was recalculated as 29 percent (100.6 million pounds divided by 348 million pounds).

The Board met again on September 8, 2016, to consider final volume regulation percentages for the 2016-17 season. The final percentages are based on the Board's reported production figures and the supply and demand information available in September. The total production for the 2016-17 season was 341 million pounds, 10 million pounds below the Board's June estimate. In addition, growers diverted 26 million pounds in the orchard, leaving 315 million pounds available to market, 310 million pounds of which are in the restricted districts. Using the actual production numbers, and accounting for the recommended desirable carry-out and economic adjustment, as well as the market growth factor, the restricted percentage was recalculated.

The Board subtracted the carry-in figure used in June of 81.3 million pounds from the optimum supply of 287 million pounds to determine 205.7 million pounds of 2016-17 production would be necessary to reach optimum supply. The Board subtracted the 205.7 million pounds from the actual production of 341.3 million pounds, resulting in a surplus of 135.6 million pounds of tart cherries. The surplus was then reduced by subtracting the economic adjustment of 22 million pounds and the market growth factor of 23 million pounds, resulting in an adjusted surplus of 90.6 million pounds. The Board then divided this final surplus by the available production of 310 million pounds in the regulated districts (336.1 million pounds minus 26.4 million pounds of in-orchard diversion) to calculate a restricted percentage of 29 percent with a corresponding free percentage of 71 percent for the 2016-17 crop year, as outlined in the following table:

The primary purpose of setting restricted percentages is an attempt to bring supply and demand into balance. If the primary market is oversupplied with cherries, grower prices decline substantially. Restricted percentages have benefited grower returns and helped stabilize the market as compared to those seasons prior to the implementation of the order. The Board believes the available information indicates that a restricted percentage should be established for the 2016-17 crop year to avoid oversupplying the market with tart cherries. Consequently, based on its discussion of this issue and the result of the above calculations, the Board recommended final percentages of 71 percent free and 29 percent restricted by a vote of 16 in favor, 2 opposed, and 2 abstentions.

Though production came in below the Board's June, 2016, estimate, the initial restriction percentage remained the same due to the substantial in-orchard diversion. During the discussion of the proposed restriction, several members supported the proposed percentages as there was no change from the preliminary 29 percent restriction recommended in June. They believed deviating from the percentages announced in June would be disruptive to the industry, as processors have already made agreements with growers.

Another member noted when there was a crop failure in 2012, there was not enough reserve to maintain sales and warned against being unprepared in the future. The member also noted that in the last four years, even with volume regulation and an increase in imported products, overall domestic sales have increased since 2013, including modest growth in both juice and piefill.

Some members opposed to the proposed restriction expressed concern regarding competition from imported tart cherry juice concentrate. In particular, they were concerned that the additional volume from imports is not accounted for in the Optimum Supply Formula (OSF), thus not capturing overall supply and demand.

Others were of the opinion that the Board's recent actions to expand the use of diversion credits in new markets or through grower diversion were allowing the industry to remain competitive without making additional adjustments to supply. Another member countered that not all handlers are helped by new market diversion credits and cannot sell all of their product under a restriction.

When asked how much of the market currently being served by imports could be supplied by the domestic handlers, some members stated they could utilize the full adjusted calculated surplus of 90.6 million pounds. Others noted that trying to compete for those markets by matching the price of imported concentrate would drop grower returns to an unsustainable level.

One member summarized that, although there is a carrying cost for storing restricted fruit, and the industry appears to be at a trade disadvantage, the Board should account for those factors all the while focusing on continuing to grow sales. Though there was much discussion regarding the market impact of imports, there was no motion made by any Board member to make a further economic adjustment to the calculation based on imported product.

After reviewing the available data, and considering the concerns expressed, the Board determined that a 29 percent restriction with a carry-out volume of 57 million pounds meets sales needs and establishes some reserves without oversupplying the market. Thus, the Board recommended establishing final percentages of 71 percent free and 29 percent restricted. The Board could meet and recommend the release of additional volume during the crop year if conditions so warranted.

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 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 600 producers of tart cherries in the regulated area and approximately 40 handlers of tart cherries who are subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000 and small agricultural service firms have been defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

According to the National Agricultural Statistics Service (NASS) and Board data, the average annual grower price for tart cherries during the 2015-16 season was approximately $0.347 per pound. With total utilization at 251.1 million pounds, the total 2015-16 crop value is estimated at $87 million. Dividing the crop value by the estimated number of producers (600) yields an estimated average annual receipt per producer of $145,000. This is well below the SBA threshold for small producers. In 2015, The Food Institute estimated a free on board (f.o.b.) price of $0.96 per pound for frozen tart cherries, which make up the majority of processed tart cherries. Multiplying the f.o.b price by total utilization of 251.1 million pounds results in an estimated handler-level tart cherry value of $241 million. Dividing this figure by the number of handlers (40) yields an estimated average annual handler receipts of $6 million, which is below the SBA threshold for small agricultural service firms. Assuming a normal bell-curve distribution, the majority of producers and handlers of tart cherries may be classified as small entities.

The tart cherry industry in the United States is characterized by wide, annual fluctuations in production. According to NASS, the pounds of tart cherry production for the years 2012 through 2015 were 85 million, 291 million, 301 million, and 251 million, respectively. Because of these fluctuations, supply and demand for tart cherries are rarely equal.

Demand for tart cherries is inelastic, meaning changes in price have a minimal effect on total sales volume. However, prices are very sensitive to changes in supply, and grower prices vary widely in response to the large swings in annual supply, with prices ranging from a low of 7.3 cents per pound in 1987 to a high of 59.4 cents per pound in 2012.

Because of this relationship between supply and price, oversupplying the market with tart cherries would have a sharp negative effect on prices, driving down grower returns. The Board, aware of this economic relationship, focuses on using the volume control authority in the order to align supply with demand and stabilize industry returns. This authority allows the industry to set free and restricted percentages as a way to bring supply and demand into balance. Free percentage cherries can be marketed by handlers to any outlet, while restricted percentage volume must be held by handlers in reserve, diverted, or used for exempted purposes.

This rule controls the supply of tart cherries by establishing percentages of 71 percent free and 29 percent restricted for the 2016-17 crop year. These percentages should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns. This rule regulates tart cherries handled in Michigan, New York, Utah, Washington, and Wisconsin. The authority for this action is provided for in §§ 930.50, 930.51(a) and 930.52 of the order. The Board recommended this action at a meeting on September 8, 2016.

This rule will result in some fruit being diverted from the primary domestic markets. However, as mentioned earlier, the USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (http://www.ams.usda.gov/publications/content/1982-guidelines-fruit-vegetable-marketing-orders) specify that 110 percent of recent years' sales should be made available to primary markets each season before recommendations for volume regulation are approved. The quantity that is available under this action is greater than 110 percent of the average quantity shipped in the prior three years.

In addition, there are secondary uses available for restricted fruit, including the development of new products, sales into new markets, the development of export markets, and being placed in reserve. While these alternatives may provide different levels of return than the sales to primary markets, they play an important role for the industry. The areas of new products, new markets, and the development of export markets utilize restricted fruit to develop and expand the markets for tart cherries. In 2015-16, these activities accounted for over 27 million pounds in sales, 12 million of which were exports.

Placing tart cherries into reserves is also a key part of balancing supply and demand. Although handlers bear the handling and storage costs for fruit in reserve, reserves stored in large crop years are used to supplement supplies in short crop years. The reserves allow the industry to mitigate the impact of oversupply in large crop years, while allowing the industry to maintain supply to markets in years when production falls below demand. Further, storage and handling costs are more than offset by the increase in price when moving from a large crop to a short crop year.

In addition, the Board recommended an increased carry-out of 57 million pounds and made a demand adjustment of 22 million pounds in order to make the regulation less restrictive. Even with the restriction, over 300 million pounds of fruit will be available to the domestic market. Consequently, it is not anticipated that this regulation will unduly burden growers or handlers.

While this action could result in some additional costs to the industry, these costs are more than outweighed by the benefits. The purpose of setting restricted percentages is to attempt to bring supply and demand into balance. If the primary market (domestic) is oversupplied with cherries, grower prices decline substantially. Without volume control, the primary market will likely be oversupplied, resulting in lower grower prices.

The three districts in Michigan, along with the districts in New York, Utah, Washington, and Wisconsin, are the restricted areas for this crop year with a combined total production of 310 million pounds. A 29 percent restriction means 220 million pounds will be available to be shipped to primary markets from these five states. The 220 million pounds from the restricted districts, 5 million pounds from the unrestricted districts (Oregon and Pennsylvania), and the 81 million pound carry-in inventory would make a total of 306 million pounds available as free tonnage for the primary markets. This is similar to the 305 million pounds of free tonnage made available last year. This is enough to cover the 251 million pounds of total utilization in 2015-16, while providing substantial carry-out. Further, the Board could meet and recommend the release of additional volume during the crop year if conditions so warranted.

Prior to the implementation of the order, grower prices often did not cover the cost of production. The most recent costs of production determined by representatives of Michigan State University are an estimated $0.33 per pound. To assess the impact that volume control has on the prices growers receive for their product, an econometric model has been developed. Based on the model, the use of volume control would have a positive impact on grower returns for this crop year. With volume control, grower prices are estimated to be approximately $0.06 per pound higher than without restrictions. In addition, absent volume control, the industry could start to build large amounts of unwanted inventories. These inventories would have a depressing effect on grower prices.

Retail demand is assumed to be highly inelastic, which indicates that changes in price do not result in significant changes in the quantity demanded. Consumer prices largely do not reflect fluctuations in cherry supplies. Therefore, this action should have little or no effect on consumer prices and should not result in a reduction in retail sales.

The free and restricted percentages established by this rule provide the market with optimum supply and apply uniformly to all regulated handlers in the industry, regardless of size. As the restriction represents a percentage of a handler's volume, the costs, when applicable, are proportionate and should not place an extra burden on small entities as compared to large entities.

The stabilizing effects of this action benefit all handlers by helping them maintain and expand markets, despite seasonal supply fluctuations. Likewise, price stability positively impacts all growers and handlers by allowing them to better anticipate the revenues their tart cherries would generate. Growers and handlers, regardless of size, benefit from the stabilizing effects of this restriction. In addition, the increased carry-out should provide processors enough supply to meet market needs going into the next season.

The Board considered alternatives in its preliminary restriction discussions that affected this action. Regarding demand, the Board began with the actual sales average of 230 million pounds. However, the Board noted that some previously contracted sales would be due for delivery in the coming season. In order to avoid undersupplying the market, the Board determined that the calculation of the optimum supply should include an additional adjustment for that purpose. After discussion, an adjustment of an additional 22 million pounds was made in the 2016-17 available supply of tart cherries as it was determined that this amount would best meet the industry's sales needs. Thus, the other alternative levels were rejected.

Regarding the carry-out value, the Board considered a range of alternatives. One member suggested the Board begin with 57 million pounds, approximately a quarter of average annual sales. Other members suggested alternatives as high as 70 million pounds. However, some members were concerned about leaving too much fruit on the market at the end of the season and depressing prices going into the next year. The Board determined three months of sales would be a good estimate for what is needed at the end of the season, as there is a three-month gap between the calculation of carry-out at the end of one season and the availability of fruit from the next season. Thus, the other alternatives were rejected.

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 OMB and assigned OMB No. 0581-0177, Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. 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 action will not impose any additional reporting or recordkeeping requirements on either small or large tart cherry 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.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule. Further, the public comments received concerning the proposal did not address the initial regulatory flexibility analysis.

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.

In addition, the Board's meeting was widely publicized throughout the tart cherry industry, and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the June 23, 2016, and September 8, 2016, meetings were public meetings, and all entities, both large and small, were able to express views on this issue.

A proposed rule concerning this action was published in the Federal Register on March 21, 2017 (82 FR 14481). Copies of the rule were sent via email to all Board members and tart cherry handlers. Finally, the rule was made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending April 20, 2017, was provided to allow interested persons to respond to the proposal.

Eleven comments were received during the comment period in response to the proposal. Four comments favored the proposed regulation and seven comments opposed the proposed regulation. One comment received was signed by 67 industry members. The commenters included growers, handlers, Board members, an industry representative, economic policy and law students, individuals, and one anonymous cherry consumer. Most of the points made by the commenters in opposition had been discussed prior to the Board's vote recommending this action.

The comment signed by 67 industry members asserted the United States government import data indicate that 40 percent of tart cherry consumption in the 2015 season was from imported products. AMS's analysis of the Foreign Agricultural Service's Global Agricultural Trade System (GATS) indicates an equivalent of more than 230 million pounds of cherries products were imported into the U.S. in the 2016 season. The imported volume has remained above 230 million pounds since the 2014 season. According to the data, tart cherry juice concentrate represents by far the largest segment of imports and has experienced tremendous growth beginning in 2012.

Five of the comments in opposition, including the comment signed by 67 industry members, reference the absence of imported tart cherry products in the OSF. All of these commenters implied that not including imported tart cherry products into the OSF calculation disregards a large portion of the demand for tart cherries. As a result, these commenters since believe the proposed rule fails to bring supply into balance with demand in the targeted market. The comment with 67 signatures states the federal marketing order does not account for the total demand of tart cherry products in the US because imported products are not included in the formula. Another commenter suggested not considering imported products in the OSF indicates the Board's recommended restriction is arbitrary and capricious.

The OSF presented to the Board included several adjustments to avoid the possibility of undersupplying the market. In determining demand, the Board takes into account many factors, including previous sales history and an analysis of economic factors having a bearing on the market. The final percentages recommended by the Board included several adjustments to supply additional fruit to the market. In calculating these adjustments for determining demand in the OSF, the Board also considered supplies of competing commodities and the additional ten percent added for the market growth factor. This was noted by one of the commenters voicing support for the proposed regulation. The economic adjustment added 22 million pounds and the market growth factor added 23 million pounds for an additional 55 million pounds beyond the average sales.

Under the order, when computing and determining final percentages for recommendation to the Secretary, the Board must give consideration to several factors including supplies of competing commodities and economic factors having a bearing on cherry markets. At the meetings on June 23, 2016, and September 8, 2016, the Board discussed its concerns regarding the economic impact of imports. At the September meeting, following the motion to adopt the OSF as presented, several comments and observations were made regarding the matter of imports. However, none of the members suggested an alternative adjustment for imports. Additionally, the Board did not propose amending the order language in section 930.50 to include imports as a factor in calculating the OSF. Most of the comments at the September meeting supported the motion to adopt the OSF as presented.

The comment with 67 signatures also states that the domestic industry has been unable to supply the significant growth in consumption of dried and juiced cherry products. Data concur that domestic production alone would not replace the imported volume in recent years. However, the Board reported steady or increased overall domestic sales from 2013-15, even though each of those seasons were regulated. The use of diversion credits allowed handlers to ship an additional 27.5 million pounds of restricted fruit during the 2015-16 season in addition to free sales. Despite this growth, the industry reported a remaining free inventory of over 80 million pounds going into the crop year, suggesting availability of domestic fruit is not a concern.

Also at the September meeting, a Board member stated an adjustment to the OSF for imports is one alternative, but the Board's preferred alternative was to use restricted cherries for supplying new and competing commodity markets. Therefore, alternatives were considered consistent with Executive Order 13563. The member also stated that restricting cherries under the order aids in stabilizing grower prices. Placing excess cherries into the market is contrary to the purpose of the order. The Board supports utilizing exempted markets for restricted cherries as an alternative to storage. Exporting cherry products and participating in new product and new market projects allows handlers to sell restricted cherries into these markets.

Should domestic handlers decide to compete in these new markets, in most cases, restricted cherries could be used and the handler could receive diversion credits under the diversion provisions of the order. Further, the Board recently recommended extending the maximum length of these activities from three years to five years, creating even more opportunities to pursue new markets. Consequently, handlers currently have ample opportunity to compete for new markets using restricted cherries while continuing to service traditional markets with unrestricted cherries. In addition, should industry efforts cause demand to exceed available volume, the Board could meet and recommend the release of additional volume.

Another commenter opposed to the 29 percent or approximately 90 million pound restriction indicated the total percent restriction, over the past three years, was 69 percent. However, the percent restriction for each year cannot be added together to arrive at the total restriction over the last three years. The calculation to derive the percent restriction over the past three years is achieved by dividing the total adjusted surplus by the total production in regulated districts over the past three years. The pounds of regulated production for 2014, 2015, and 2016 seasons were 295 million with 59 million restricted, 240 million with 47 million restricted, and 310 million with 91 million restricted, respectively. The total 197 million pounds of surplus divided by the total regulated production of 845 million equals a 23 percent restriction. The miscalculation from the commenter in opposition overstated the total percent restriction for the past three years by triple.

This commenter also stated that marketers of cherry products should not be forced to hold volume off the market while imported products enter the market freely. Contrary to the commenter's opinion, a Board member at the September 8, 2016, meeting stated that placing excess cherries into the market as a method of countering imports would only lower grower prices significantly and would not be positive for the grower community. Another Board member added that imports are capturing a less profitable market while the domestic industry is serving more profitable markets.

One commenter indicated the OSF was calculated incorrectly by including the in-orchard diverted fruit as part of production in the formula. This individual suggested if the in-orchard diverted fruit was removed from production, the percentage would be 21 percent, instead of 29 percent restriction. However, 26.4 million pounds of in-orchard diversion were accounted for when calculating the volume subject to restriction from the regulated districts. This is consistent with the method used to account for fruit produced in unrestricted districts. The total production (341.3 million pounds) minus the in-orchard diversions (26.4 million pounds) and production in unrestricted districts (5.2 million pounds) left 309.7 million pounds subject to restriction. The Board divided the surplus of 90.6 million pounds by this volume to arrive at 29 percent restricted and 71 percent free market cherries.

One comment, submitted twice, from two students in opposition to this regulation suggested the government should not intervene and require cherry farmers to restrict supply. This comment assumed the order restricts the amount of tart cherries that can be produced. Volume regulation under the order is a tool for the tart cherry industry to stabilize market conditions due to fluctuations in supply and the inelastic nature of demand for tart cherries. This action does not regulate growers' production of the commodity. This regulatory action is a restriction on domestic tart cherry products handled for the market. This regulation will only restrict cherries purchased for handling. Further, this action is a recommendation from the tart cherry industry as represented by the Board made up of growers, handlers, and a member of the public. The Board considered not regulating as a possible alternative, consistent with Executive Order 13563, but this consideration was rejected after reviewing production data.

One commenter opposed the restriction because it would reduce tart cherry production and not allow the producers to benefit from maximizing the crop. The commenter also concluded the restriction would make it difficult for the industry to reach optimum supply. As previously mentioned, this action does not restrict tart cherry production. Production decisions are made well in advance of the recommendation for volume restriction, which is discussed just prior to harvest and finalized following harvest. Unlike some other commodities like row crops, tree crops such as tart cherries cannot be easily taken out of production. This action regulates only the handling of tart cherries.

Regarding the commenter's second concern, USDA requires 110 percent of average sales be made available under any volume regulation. The Board recommended an economic adjustment for the 2016-17 season to make even more fruit available, going beyond the initial optimum supply calculation. While the restriction may not impact production costs, producers do experience a drop in price when the market is oversupplied. When the market approaches optimum supply, prices tend to be more stable.

All four of the proponents of this action suggest the restriction will stabilize the cherry industry's economy. Three of the proponents made reference to the industry wide support for the recommended restriction, as represented by the Board's vote in which 16 members, the majority of the Board, voted in favor, two abstained and two opposed the recommended restriction. One of these proponents indicated this level of support is significantly greater than the requisite two-thirds majority required for Board action. Further, two proponents made reference that the action is supported by a large majority of the industry.

Three proponents of this action recognized the Board's consideration of the opponents' concerns in their comments on the proposal. All three noted the matter of imports has been addressed by the Board at several meetings. One proponent recognized the Board established a committee to suggest alternative ways to increase domestic juice and juice concentrate sales. Another commenter suggested if growers and processors want to account for imports in a way other than through adjustments, then the Board should focus on amending the order language for determining optimum supply to account for imports.

All three proponents made reference to the Board's efforts in promoting the exemption process as a method of competing with imported cherry products. One commenter noted the Board's recommendation for extending the time from one year to three years for new product and new market exemptions that was implemented in the previous season. As mentioned previously, the Board has recommended a further expansion of the timeframe. The additional time will allow opportunity for more cherries to qualify for exemption in response to the level of imported cherry products.

One commenter referenced the opportunities available to use both in-orchard and post-harvest diversion to comply with a restriction. The commenter stated the Federal marketing order provides major incentive to expand sales by using restricted fruit to serve new markets, new products, and exports. Additionally, there is incentive in place for growers to divert excess fruit where there is no market or where the cost associated with marketing the fruit may not increase returns. Growers who choose to divert in the orchard can be issued certificates by the Board that can be sold to handlers to meet their restriction requirements.

One commenter noted the Board felt the final calculations were appropriate. They also stated that the majority of the industry approved the order in its last referendum, believing that the order brings more returns to growers. Another proponent noted, even with the restriction, sales are not being lost due to lack of available unrestricted cherries. The carry-in from July 2016 (81 million lbs.) and the projected availability of free market carry-out (57 million lbs.) indicate the restriction is not a factor in limiting sales of tart cherry products. The Board deliberated thoroughly on whether or not to make an additional economic adjustment to account for imported cherry products. However, no motion was made for an additional adjustment to reflect the impact of imported cherry products. As one commenter noted, there is a lack of consensus on how to factor imports into the final calculation.

Further, according to Foreign Agricultural Service's GATS database, though imported cherry products remained high (230 million lbs. equivalent) during the 2016 calendar year, the volume is down from the 2015 calendar year (267 million lbs. equivalent) and also below the 2014 calendar year (244 million lbs. equivalent). The final NASS prices for the 2016 season are not yet available, but from 2013-15, grower prices were stable, ranging from $0.34 to $0.36 per pound. Thus, when using available sales, utilization, and price data from previous years it is difficult to determine what, if any, specific negative impact imports have had on the market for domestic tart cherries and then account for that impact in the OSF.

As previously stated, there are more than 309 million pounds of tart cherries available for free sales for 2016-17. This volume exceeds total sales from 2015-16 of both free and restricted cherries of 288 million pounds. Further, the order provides numerous alternatives for the use of restricted fruit, such as handler diversion, for complying with the recommended restriction. Additionally, the USDA announced the intent to purchase over 10 million pounds of cherry products in the 2016-2017 season as surplus purchases. Therefore, as stated in the RFA, it is not anticipated that this action will unduly burden growers or handlers.

Accordingly, no changes will be made to the rule as proposed, based on the comments received.

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.

After consideration of all relevant matter 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.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because handlers are already shipping tart cherries from the 2016-17 crop. Further, handlers are aware of this rule, which was recommended at a public meeting. Also, a 30-day comment period was provided for in the proposed rule.

For the reasons set forth in the preamble, 7 CFR part 930 is amended as follows:

The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis, usually overnight. The primary and secondary credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to the review and determination of the Board.

On June 14, 2017, the Board voted to approve a 1/4 percentage point increase in the primary credit rate in effect at each of the twelve Federal Reserve Banks, thereby increasing from 1.50 percent to 1.75 percent the rate that each Reserve Bank charges for extensions of primary credit. In addition, the Board had previously approved to renew the formula for the secondary credit rate, the primary credit rate plus 50 basis points. Under the formula, the secondary credit rate in effect at each of the twelve Federal Reserve Banks increased by 1/4 percentage point as a result of the Board's primary credit rate action, thereby increasing from 2.00 percent to 2.25 percent the rate that each Reserve Bank charges for extensions of secondary credit. The amendments to Regulation A reflect these rate changes.

The 1/4 percentage point increase in the primary credit rate was associated with an increase in the target range for the federal funds rate (from a target range of 3/4 to 1 percent to a target range of 1 to 11/4 percent) announced by the Federal Open Market Committee (“Committee”) on June 14, 2017, as described in the Board's amendment of its Regulation D published elsewhere in today's Federal Register.

In general, the Administrative Procedure Act (12 U.S.C. 551 et seq.) (“APA”) imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to congressionally delegated authority): (1) Publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.” 12 U.S.C. 553(b)(3)(A). Section 553(d) of the APA also provides that publication not less than 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) an agency finding good cause for shortened notice and publishing its reasoning with the rule. 12 U.S.C. 553(d). The APA further provides that the notice, public comment, and delayed effective date requirements of 5 U.S.C. 553 do not apply “to the extent that there is involved . . . a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” 5 U.S.C. 553(a)(2) (emphasis added).

Regulation A establishes the interest rates that the twelve Reserve Banks charge for extensions of primary credit and secondary credit. The Board has determined that the notice, public comment, and delayed effective date requirements of the APA do not apply to the final amendments to Regulation A for several reasons. The amendments involve a matter relating to loans, and are therefore exempt under the terms of the APA. In addition, the Board has determined that notice, public comment, and delayed effective date would be unnecessary and contrary to the public interest because delay in implementation of changes to the rates charged on primary credit and secondary credit would permit insured depository institutions to profit improperly from the difference in the current rate and the announced increased rate. Finally, because delay would undermine the Board's action in responding to economic data and conditions, the Board has determined that “good cause” exists within the meaning of the APA to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to the final amendments to Regulation A.

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.1 As noted previously, a general notice of proposed rulemaking is not required if the final rule involves a matter relating to loans. Furthermore, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

For the reasons set forth in the preamble, the Board is amending 12 CFR part 201 as follows:

For monetary policy purposes, section 19 of the Federal Reserve Act (“the Act”) imposes reserve requirements on certain types of deposits and other liabilities of depository institutions. Regulation D, which implements section 19 of the Act, requires that a depository institution meet reserve requirements by holding cash in its vault, or if vault cash is insufficient, by maintaining a balance in an account at a Federal Reserve Bank (“Reserve Bank”).1 Section 19 also provides that balances maintained by or on behalf of certain institutions in an account at a Reserve Bank may receive earnings to be paid by the Reserve Bank at least once each quarter, at a rate or rates not to exceed the general level of short-term interest rates. Institutions that are eligible to receive earnings on their balances held at Reserve Banks (“eligible institutions”) include depository institutions and certain other institutions.2 Section 19 also provides that the Board may prescribe regulations concerning the payment of earnings on balances at a Reserve Bank.3 Prior to these amendments, Regulation D specified a rate of 1.00 percent for both IORR and IOER.4

The Board is amending § 204.10(b)(5) of Regulation D to specify that IORR is 1.25 percent and IOER is 1.25 percent. This 0.25 percentage point increase in the IORR and IOER was associated with an increase in the target range for the federal funds rate, from a target range of 3/4 to 1 percent to a target range of 1 to 11/4 percent, announced by the FOMC on June 14, 2017, with an effective date of June 15, 2017. The FOMC's press release on the same day as the announcement noted that:

A Federal Reserve Implementation note released simultaneously with the announcement stated that:

As a result, the Board is amending § 204.10(b)(5) of Regulation D to change IORR to 1.25 percent and IOER to 1.25 percent.

In general, the Administrative Procedure Act (12 U.S.C. 551 et seq.) (“APA”) imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to congressionally delegated authority): (1) Publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.” 12 U.S.C. 553(b)(3)(A). Section 553(d) of the APA also provides that publication not less than 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) an agency finding good cause for shortened notice and publishing its reasoning with the rule. 12 U.S.C. 553(d).

The Board has determined that good cause exists for finding that the notice, public comment, and delayed effective date provisions of the APA are unnecessary, impracticable, or contrary to the public interest with respect to the final amendments to Regulation D. The rate increases for IORR and IOER that are reflected in the final amendments to Regulation D were made with a view towards accommodating commerce and business and with regard to their bearing upon the general credit situation of the country. Notice and public comment would prevent the Board's action from being effective as promptly as necessary in the public interest, and would not otherwise serve any useful purpose. Notice, public comment, and a delayed effective date would create uncertainty about the finality and effectiveness of the Board's action and undermine the effectiveness of that action. Accordingly, the Board has determined that good cause exists to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to the final amendments to Regulation D.

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.5 As noted previously, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. 3506; 5 CFR part 1320, appendix A.1), the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

For the reasons set forth in the preamble, the Board amends 12 CFR part 204 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all DG Flugzeugbau GmbH Models DG-400, DG-500M, DG-500MB, DG-800A, and DG-800B gliders. The NPRM was published in the Federal Register on April 21, 2017 (82 FR 18722). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country.

The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We reviewed DG Flugzeugbau GmbH Technical note No. 800-44, 500-10, DG-SS-02, dated November 9, 2016, and co-published as one document; DG-400 diagram 8, 6 TN DG-SS-02; DG-500M diagram 14, TN 500/10; DG-500MB diagram 14, TN 500/10; DG-800A/LA diagram 11, TN 800/44; DG-800B Solo 2625 diagram 11, TN 800/44; DG-800B Solo 2625 diagram 11a, TN 800/44; DG-800B Solo 2625 diagram 11b, TN 800/44; and DG-800B ab W.Nr. 8-155/from ser. no. 8-155 on, diagram 11d, TN 800/44, all diagrams issued October 2016. In combination, the service information describes procedures for inspecting and replacing the fuel hoses on different aircraft model variants covered by the applicability of this AD. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

We estimate that this AD will affect 59 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with each inspection required by this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the inspection cost of this AD on U.S. operators to be $10,030, or $170 per product.

In addition, we estimate that each replacement action required by this AD will take about 8 work-hours and require parts costing $500. Based on these figures, we estimate the replacement cost of this AD on U.S. operators to be $69,620, or $1,180 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0343; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The Inflation Adjustment Act, as amended by the 2015 Act, requires Federal agencies to adjust the civil penalty amounts within their jurisdiction for inflation by July 1, 2016, and then by January 15 every year thereafter.1 Agencies must make the initial 2016 adjustments through an interim final rulemaking published in the Federal Register.2 Under the amended Act, any increase in a civil penalty made under the Act will apply to penalties assessed after the increase takes effect, including penalties whose associated violation predated the increase.3 The inflation adjustments mandated by the Act serve to maintain the deterrent effect of civil penalties and to promote compliance with the law.

The Inflation Adjustment Act prescribes a specific method for calculating the inflation adjustments.4 As amended by the 2015 Act, the Act provides that the maximum (and minimum, if applicable) amounts for each civil penalty must be increased by the “cost-of-living adjustment,” a term that the Act defines. For purposes of the initial adjustments that agencies must make by July 1, 2016, the “cost-of-living adjustment” is defined as the percentage increase in the Consumer Price Index between (1) October of the calendar year during which the civil penalty amount was established or adjusted under a provision of law other than the Inflation Adjustment Act and (2) October 2015. The Consumer Price Index to be used for purposes of this calculation is the Consumer Price Index for all urban consumers (CPI-U) published by the Department of Labor.5 The Office of Management and Budget (OMB) has published guidance for implementing this requirement.6 OMB's guidance memorandum provides multipliers that agencies should use to adjust penalty amounts based on the year the penalty was established or last adjusted under authority other than the Inflation Adjustment Act.

To determine the new penalty amount, the agency must apply the multiplier reflecting the “cost-of-living adjustment” 7 to the penalty amount as it was most recently established or adjusted under a provision of law other than the Inflation Adjustment Act. The agency must then round that amount to the nearest dollar.8 The increase made by this initial adjustment may not exceed 150 percent of the penalty amount in effect on the date the 2015 Act was enacted, November 2, 2015.

This interim final rule establishes the inflation-adjusted maximum amounts for each civil penalty within NASA's jurisdiction. The following table lists the civil penalties within NASA's jurisdiction and summarizes the relevant information needed to calculate the inflation adjustments pursuant to the statutory method.

NASA followed the procedure outlined above in part II to calculate the adjusted civil penalty amounts. In accordance with the statutory requirements and OMB guidance, NASA multiplied each penalty amount as established or last adjusted under a provision other than the Inflation Adjustment Act by the OMB multiplier corresponding to the appropriate year, and then rounded that amount to the nearest dollar, to calculate the new, inflation-adjusted civil penalty amount. The following chart summarizes the results of these calculations:

This rule codifies these civil penalty amounts by amending parts 1264 and 1271 of title 14 of the CFR.

NASA issues this rule under the Federal Civil Penalties Inflation Adjustment Act of 1990,9 as amended by the Debt Collection Improvement Act of 1996,10 and further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,11 which requires NASA to adjust the civil penalties within its jurisdiction for inflation according to a statutorily prescribed formula.

The Administrative Procedure Act (APA) generally requires an agency to publish a rule at least 30 days before its effective date.12 This rule satisfies that requirement.

Although notice and comment rulemaking procedures are not required, NASA invites comments on this notice. Commenters are specifically encouraged to identify any technical issues raised by the rule.

Under the APA, notice and opportunity for public comment are not required if NASA finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest.13 This interim final rule adjusts the civil penalty amounts within the NASA's jurisdiction for inflation, as required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 and further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The amendments in this interim final rule are technical, and they merely apply the statutory method for adjusting civil penalty amounts. For these reasons, NASA has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Moreover, the statute expressly requires NASA to make these initial adjustments through an interim final rulemaking to be published by July 1, 2016,14 and OMB's guidance confirms that agencies need not complete a notice-and-comment process before promulgating the rule.15 Therefore, the amendments are adopted in final form.

Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis.16

In accordance with the Paperwork Reduction Act of 1995,17 NASA reviewed this interim final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the interim final rule.

For the reasons stated in the preamble, the National Aeronautics and Space Administration amends 14 CFR parts 1264 and 1271 as follows:

The Commission is adopting final rules to establish new and amend certain existing delegations of authority to Commission staff. Previously, the Commission delegated, to the Director of the Division of Market Oversight (“DMO”), various authorities for implementing certain Commission regulations.1 Many of these delegated authorities have been carried out by staff in DMO's Surveillance Branch. However, as a result of the recent Commission organizational restructuring, which moved DMO's Surveillance Branch to the Division of Enforcement (“DOE”), the Commission has completed a full review of DMO delegated authorities and decided to remove certain delegated authorities from the DMO Director, other division directors, and certain Commission staff. The Commission is delegating such authorities to the Director of DOE or the Director of the Office of Data and Technology (“ODT”). In addition, the Commission is adding new delegations of authority to certain of the part 48 provisions that govern the registration of Foreign Boards of Trade (“FBOT”).

For certain regulations, the Commission is revising the statutory authority citations to reflect the most current citation. On July 21, 2010, President Obama signed the Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) into law.2 Title VII of the Dodd-Frank Act amended provisions of the Commodity Exchange Act (“CEA”) 3 to establish a comprehensive framework for the regulation of swaps and security-based swaps. However, according to the Federal Register drafting handbook, it is recommended that the Commission only list the current United States Code (“U.S.C.”) citation when it is available.4 As such, the Commission need only cite the Dodd-Frank Act as the amending statutory authority for each rule part until such amendments are codified in the U.S.C. Since the Dodd-Frank Act provisions have been codified in the U.S.C., the Commission is revising the citation authority preceding certain Commission regulations to reflect the current U.S.C. citations.

In addition, the Commission is amending certain of its regulations to revise a limited number of typographical and formatting errors, and to delete a duplicate regulation.

Part 5 of the Commission's regulations governs off-exchange foreign currency transactions. Section 5.20(d) covers Commission delegated authority to the DMO Director to make special calls for information on controlled accounts from retail foreign exchange dealers, futures commission merchants (“FCMs”) and introducing brokers (“IBs”), and to make special calls for information on open contracts in accounts carried or introduced by FCMs, IBs, and foreign brokers. The Commission is amending its delegation of authority in § 5.20(d) to remove the DMO Director from its list of delegates and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 5 statutory authority citation.

Part 11 of the Commission's regulations establishes rules relating to investigations. Section 11.2(a) delegates authority to the DOE Director, the Director of the Division of Swap Dealer and Intermediary Oversight (“DSIO”), the Director of the Division of Clearing and Risk (“DCR”), the Director of DMO, the Chief Economist, and members of their staffs acting within the scope of their respective responsibilities, to conduct investigations in particular matters. The Commission has decided to delegate such investigatory authority to the DOE Director and members of Commission staff acting pursuant to the Director's authority and under the Director's direction to conduct investigations. The Commission is amending its delegation of authority in § 11.2(a) to remove the Chief Economist and the Directors of DSIO, DCR and DMO and their staff from its list of delegates. The Commission is also updating the part 11 statutory authority citation to reflect the correct numerical ordering of the statutory provisions cited.

Part 16 of the Commission's regulations governs reports by designated contract markets and swap execution facilities. Section 16.07(a) delegates authority to the DMO Director to determine the form, manner and time of filing reports required in §§ 16.00(b) and 16.01(d). Section 16.07(b) delegates authority to the DMO Director to determine the format, coding structure and electronic data transmission procedures used by reporting markets pursuant to §§ 16.00(b)(1), 16.01(d)(1) and 16.06. The Commission is amending its delegations of authority in § 16.07(a) and (b) to remove the DMO Director from its list of delegates and to delegate such authority to the ODT Director, with the concurrence of the DMO Director, or such other employee or employees as the Directors each may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 16 statutory authority citation and updating the part 16 statutory authority citation to reflect the correct numerical ordering of the statutory provisions cited. The Commission is also amending the outline formatting of § 16.07.

Part 17 of the Commission's regulations governs reports by reporting markets, futures commission merchants, clearing members, and foreign brokers. In § 17.03, the Commission is adding a delegation of authority, pursuant to § 17.01(e), to the ODT Director, in consultation with the DMO Director, or such other employee or employees as the Directors each may designate from time to time, to issue requests for Forms 102 and 71. The Commission is also making typographical corrections to the time formatting in § 17.02, and deleting the Dodd-Frank Act reference from the part 17 statutory authority citation.

Part 18 of the Commission's regulations governs reports by certain traders. Section 18.03 governs Commission delegated authority to the DMO Director to issue special calls for certain reports and information to be furnished by traders, and to request information related to the maintenance of books and records. The Commission is amending its delegation of authority in § 18.03 to remove the DMO Director from its list of delegates for issuing special calls for information pursuant to §§ 18.00 and 18.05, and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also amending its delegation of authority in § 18.03 to remove the DMO Director from its list of delegates for issuing special calls for information pursuant to § 18.04, and to delegate such authority to the ODT Director, in consultation with the DMO Director, or such other employee or employees as the Directors each may designate from time to time. Finally, the Commission is deleting the Dodd-Frank Act reference from the part 18 statutory authority citation.

Part 19 of the Commission's regulations governs reports by persons holding bona fide hedge positions, and by merchants and dealers in cotton. Section 19.00(a)(3) governs Commission delegated authority to the DMO Director to issue special calls for Series `04 reports (cash market positions of large traders in cotton and grains). The Commission is amending its delegation of authority in § 19.00(a)(3) to remove the DMO Director from its list of delegates and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 19 statutory authority citation.

Part 20 of the Commission's regulations governs large trader reporting for physical commodity swaps. Section 20.8 governs Commission delegated authority to the DMO Director to: Issue special calls for certain forms, books and records; determine the form and manner of reporting; and determine compliance schedules. The Commission is amending its delegation of authority in § 20.8 to remove the DMO Director as its delegate for issuing § 20.6(d) special calls for books and records, and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also amending its § 20.8 delegation of authority to remove the DMO Director as its delegate for issuing § 20.5 requests for 102S and 40S filings, and to delegate such authority to the ODT Director, in consultation with the DMO Director, or such other employee or employees as the Directors each may designate from time to time. Finally, the Commission is amending its § 20.8 delegation of authority to remove the DMO Director as its delegate for determining the form and coding structure of reporting in § 20.7, and will delegate such authority to the ODT Director, with the concurrence of the DMO Director, or such other employee or employees as the Directors each may designate from time to time. Finally, the Commission is also making typographical corrections to the time formatting in § 20.5, and deleting the Dodd-Frank Act reference from the part 20 statutory authority citation.

Part 21 of the Commission's regulations governs various types of Commission special calls. Section 21.05 particularly governs Commission delegated authority to the DMO Director to issue special calls for information on certain controlled accounts and open interest contracts in certain accounts. The Commission is amending its delegation of authority in § 21.05 to remove the DMO Director from its list of delegates and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 21 statutory authority citation.

Part 48 of the Commission's regulations governs the registration of FBOTs. The Commission is amending the part 48 rules to add a new § 48.11 that addresses delegations of authority to DMO. Section 48.11 will address delegations with respect to the following provisions:

1. Section 48.7 governs FBOT requirements for registration. The Commission is delegating authority, pursuant to § 48.7, for the DMO Director and his designated staff to request additional information and documentation in connection with an application for registration.

2. Section 48.9 governs the revocation of an FBOT's registration. The Commission is delegating authority, pursuant to § 48.9(a)(1) and (c), for the DMO Director and his designated staff to: (i) Notify an FBOT that, pursuant to § 48.9(a)(1), the registered FBOT or the clearing organization has failed to satisfy any registration requirements or conditions for registration; and (ii) pursuant to § 48.9(c), request that the FBOT file a written demonstration, containing such supporting data, information, and documents, in such form and manner and within such timeframe as the Commission may specify, that the foreign board of trade or clearing organization is in compliance with the registration requirements and/or conditions for registration.

3. Section 48.10 requires that FBOTs that wish to make additional contracts available to trade by members or participants located in the United States with direct access to the FBOT's trade-matching system must submit to the Commission a written request before offering the additional contracts in the U.S. The FBOT can offer the additional contracts for trading 10 business days after the Commission receives the FBOT's written request unless the Commission notifies the FBOT that additional time is needed to complete its review of policy or other issues pertinent to the additional contracts. The Commission is delegating authority, under § 48.10, for the DMO Director and his designated staff to, within the 10-day review period, notify an FBOT whether additional time is needed to complete its review of policy or other issues pertinent to the additional contracts, or that the contract can be made available for trading by direct access.

Part 140 of the Commission's regulations governs organization, functions and procedures of the Commission. The Commission is making the following amendments to the part 140 regulations.

1. Section 140.72, pertaining to delegation of authority to disclose confidential information to a registered entity, swap execution facility, swap data repository, registered futures association or self-regulatory organization.

Currently, § 140.72 delegates authority directly to the various Commission Division directors and certain identified senior staff positions to disclose confidential information. The Commission is amending its delegation of authority in § 140.72(a) to delegate authority to Division directors and their designated staff members.

2. Section 140.73, pertaining to delegation of authority to disclose information to United States, states, and foreign government agencies and foreign futures authorities.

Currently, § 140.73 delegates authority directly to the various Commission Division directors and certain identified senior staff positions to disclose confidential information. The Commission is amending its delegation of authority in § 140.72(a) to delegate authority to Division directors and their designated staff members.

3. Section 140.74, pertaining to delegation of authority to issue special calls for series 03 reports and Form 40.

The Commission is amending § 140.74 to remove the delegation of authority to the DMO Director, and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time, for issuing special calls for series 03 reports. The Commission is also amending § 140.74 to delete a duplicate rule provision regarding authority to issue special calls for Form 40.

4. Section 140.97, pertaining to delegation of authority regarding requests for classification of positions as bona fide hedging.

The Commission is amending § 140.97 to remove the delegation of authority to the DMO Director, and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time.

Part 150 of the Commission's regulations governs limits on positions. Sections 150.3(b) and 150.4(e) govern Commission delegated authority to the DMO Director to issue calls for information related to claims of exemptions from positions limits, certain position, trading and business relationship information, and to determine the form, coding structure and transmission procedures for submitting data. The Commission is amending its special call delegation of authority in §§ 150.3(b) and 150.4(e) to remove the DMO Director from its list of delegates and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also amending its form and manner delegation of authority in § 150.4(e) to remove the DMO Director from its list of delegates and to delegate such authority to the ODT Director, with the concurrence of the DOE Director, or such other employee or employees as the Directors each may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 150 statutory authority citation.

The Administrative Procedure Act (“APA”) 5 generally requires a Federal agency to publish notice of a proposed rulemaking in the Federal Register and to allow opportunity for public comment before promulgating a final rule.6 This requirement does not apply, however, to “rules of agency organization, procedure, or practice.” 7 This final rule makes conforming amendments to various Commission regulations to reflect the recent organizational restructuring at the Commission, including corresponding updates to Commission delegations of authority to staff, which changes fit squarely into the category of “rules of agency organization, procedure, or practice.” 8 This final rule also corrects typographical errors and outdated statutory references, which have no impact on substantive rights or obligations under the CEA and are entirely ministerial and procedural in nature. Therefore, this rulemaking is excepted from the public rulemaking provisions of the APA.9 Conforming amendments to certain delegations of authority to reflect organizational changes, updating of relevant statutory authority and other technical corrections, will not cause any party to undertake new or additional efforts to comply with the regulations as revised. This final rule shall become effective upon publication in the Federal Register.

The Regulatory Flexibility Act requires the Commission to consider whether the regulations it adopts will have a significant economic impact on a substantial number of small entities.10 The Commission is obligated to conduct a regulatory flexibility analysis for any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of the APA.11 However, this rulemaking is excepted from the public rulemaking provisions of the APA.12 Accordingly, the Commission is not obligated to conduct a regulatory flexibility analysis for this rulemaking.

The Commission may not conduct or sponsor, and a respondent is not required to respond to, a collection of information contained in a rulemaking unless the information collection displays a currently valid control number issued by the Office of Management and Budget (“OMB”) pursuant to the Paperwork Reduction Act.13 This rulemaking contains no collection of information that obligates the Commission to obtain a control number from OMB.

Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.14 Section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors.

The Commission is amending its delegations of authority in §§ 5.20(d), 11.2(a), 16.07, 18.03, 19.00(a)(3), 20.8, 21.05, 140.72(a), 140.73, 140.74, 140.97, 150.3(b) and 150.4(c), and in part 48. The Commission is also amending certain statutory citations in, and making limited technical and typographical corrections to parts 5, 11, 16, 18, 19, 20, 21, 140, and 150. For assessing whether and to what extent costs or benefits are likely to flow from the amendments, the Commission is using the CEA and related regulations that currently instruct market participants as to which delegated authorities may ask for and receive requested information. The proposed amendments do not change the status quo.

There are no costs to the industry or the public associated with the amendments to certain Commission delegations of authority, regulation statutory citations, or typographical errors in the regulations.

The Commission believes that market participants and the public will benefit from these ministerial rule amendments since the updated delegations of authority will reflect the Commission's “mission to identify and prosecute violations of law and regulation” and “foster increased efficiencies through knowledge sharing and cross training under unified leadership; thus benefitting the Commission's surveillance mission and enforcement responsibilities.” 15 The amendments will also benefit market participants and the public by eliminating outdated statutory authority references in the regulation text and making limited technical and typographical corrections.

Protection of market participants and the public. The Commission believes that correcting minor technical and typographical errors in certain parts of its rules and updating certain delegations of authority to accurately reflect recent organizational changes advances its mission to protect market participants and the public.

Efficiency, competitiveness, and financial integrity of futures markets. The Commission believes that the amendments will not materially affect the efficiency, competitiveness, and financial integrity of futures markets because the rule changes are ministerial and do not affect the operations of markets.

Price discovery. The Commission believes that the amendments will not materially affect the price discovery process because the rule changes are ministerial and do not affect the operations of markets.

Sound risk management practices. The Commission believes that the amendments will not materially affect sound risk management practices because the rule changes are ministerial and do not affect how market participants conduct risk management.

Other public interest considerations. The Commission has not identified any other public interest consideration.

For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR chapter I as set forth below:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be impracticable. The Wrangell Chamber of Commerce will be conducting power boat races from 3 p.m. to 7 p.m. on July 4, 2017 for the Wrangell 4th of July Celebration. The boat races will be taking place approximately 100 yards off of the city dock in Wrangell, AK. The event organizers did not finalize the location of the power boat races in sufficient time for the Coast Guard to solicit public comments.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable for the reasons described above.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Commander, Seventeenth District has determined that potential risks of collision, allision, and wake damage associated with power boat racing will be a safety concern for any vessels (other than the participants) entering the race course. Boat races typically result in vessel and spectator congestion in the proximity of the race course. Vessel movement restrictions are necessary to ensure spectators remain an adequate distance from the specified race area thereby providing unencumbered access for emergency response craft in the event of a race-related emergency. This rule establishes a specified race area and ensurse the safety of this marine event by prohibiting persons and vessel operators from entering, transiting or remaining within the designated race zone during times of enforcement.

This rule establishes a special local regulation to restrict vessel movement within the race area from 3 p.m. to 7 p.m. on July 4, 2017 to include Wrangell Harbor entrance and an area extending north along the shoreline approximately 600 yards. No vessel or person would be permitted to enter the special local regulation without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

E.O.s 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) 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. E.O.13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed it.

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Vessel traffic would be able to safely transit around the proposed race area which would impact a small designated area in Wrangell Harbor for 4 hours. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the race area, and the rule would allow vessels to seek permission to enter the race area.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the race area may be small entities, for the reasons stated in section V.A above this rule would not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect 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. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of a special local regulation lasting 4 hours that would prohibit entry within 100 yards of the event area. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of Commandant Instruction M16475.lD. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Town of Hempstead Department of Public Safety submitted and the bridge owner, the New York State Department of Transportation, concurred with a temporary deviation request from the normal operating schedule to facilitate a public fireworks event.

The Loop Parkway Bridge, mile 0.7, across Long Creek, has a vertical clearance of 21 feet at mean high water and 23 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.799(f).

This temporary deviation will allow the Loop Parkway Bridge to remain closed from 9:30 p.m. through 11:59 p.m. on July 8, 2017 with a rain date of July 9, 2017. The waterway is used primarily by seasonal recreational vessels and occasional tug/barge traffic. Coordination with waterway users has indicated no objections to this short-term closure of the draw.

Vessels that can pass under the bridge without an opening may do so at all times. The bridge will be able to open for emergencies. Additionally, there are alternate routes for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

On March 23, 2017, Sector Boston was made aware of a bridge rehabilitation project that includes the replacement of the swing span portion of MBTA Railroad Bridge, which spans the Danvers River in Beverly and Salem, Massachusetts. The COTP Boston has determined that the potential hazards associated with the bridge rehabilitation project will be a safety concern for anyone within the work area.

The project is scheduled to begin on June 5, 2017 and be completed by November 1, 2017. During this project, removal and replacement of the swing span will take place. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The safety zone will be enforced during different periods when work barges and gantry cranes will be placed in the navigable channel or when other hazards to navigation arise. The Coast Guard will issue a Broadcast Notice to Mariners via marine channel 16 (VHF-FM) 24 hours in advance to any period of enforcement or as soon as practicable in response to an emergency. If the project is completed prior to November 1, 2017, enforcement of the safety zone will be suspended and notice given via Broadcast Notice to Mariners.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The late finalization of project details did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before the construction work is set to begin. It would be impracticable and contrary to the public interest to delay promulgating this rule as it is necessary to protect the safety of the public and waterway users.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to the public interest for the same reasons specified above.

The legal basis for this temporary rule is 33 U.S.C. 1231. The COTP Boston has determined that potential hazards associated with the bridge rehabilitation project starting on June 5, 2017 and continuing through November 1, 2017 will be a safety concern for anyone within the work zone. This rule is needed to protect personnel, vessels, and the marine environment within the safety zone while the bridge rehabilitation project is completed.

This rule establishes a safety zone from June 5, 2017 through November 1, 2017. The safety zone will cover all navigable waters from surface to bottom of the Danvers River, MA within a 300-yard radius of the swing span portion of the Massachusetts Bay Transportation Authority (MBTA)/AMTRAK Bridge. The duration of the zone is intended to protect people, vessels, and the marine environment in these navigable waters during the bridge rehabilitation project. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the Federal Register, the Local Notice to Mariners, and Broadcast Notice to Mariners via marine Channel 16 (VHF-FM) in advance of any scheduled enforcement period. The regulatory text we are enforcing appears at the end of this document.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 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. 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 Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

The Coast Guard has determined that this rulemaking is not a significant regulatory action for the following reasons: (1) The safety zone only impacts a small designated area of the Danvers River, (2) the zone will only be enforced when work barges and gantry cranes will be placed in the navigable channel during removal and replacement of the swing span or if necessitated by an emergency, (3) persons or vessels desiring to enter the safety zone may do so with permission from the COTP Boston or a designated representative. The Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for all of the reasons discussed in the REGULATORY PLANNING AND REVIEW Section, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect 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. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves enforcing a temporary safety zone during the removal and replacement of the swing span MBTA Railroad Bridge, which spans the Danvers River in Beverly and Salem, Massachusetts. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration (REC) for Categorically Excluded Actions will be available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On May 25, 2016, IDEM published a “Notice of Public Information” in several newspapers, and on its Web site at http://www.in.gov/idem/6777.htm, providing a 30-day public comment period on the proposed revision to its SIP concerning update to the definition of “References to the Code of Federal Regulations.” A public hearing was held on August 10, 2016. IDEM did not receive any comments.

On December 13, 2016, IDEM submitted a request to revise the definition of “References to the Code of Federal Regulations” in SIP rule 326 IAC 1-1-3 to mean the 2015 edition of the Code of Federal Regulations (CFR).

IDEM has requested that EPA approve the Indiana Administrative Code rule revision:

Rule 326 IAC 1-1-3, definition of “References to Code of Federal Regulations”.

IDEM updated the reference to the CFR in 326 IAC 1-1-3 from the 2013 edition to the 2015 edition. This is solely an administrative change that allows Indiana to reference a more current version of the CFR. By amending 326 IAC 1-1-3 to reference the 2015 version of the CFR, the provision in Title 326 of the IAC will be consistent with the applicable CFR regulations as of July 30, 2015.

EPA is approving as a revision to the Indiana SIP an update of 326 IAC 1-1-3, “References to the Code of Federal Regulations.”

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective August 25, 2017 without further notice unless we receive relevant adverse written comments by July 26, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective August 25, 2017.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 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 Clean Air Act. 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 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 Clean Air Act; 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).

This rule 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, 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 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 August 25, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52, is amended as follows:

On June 22, 2016, the Indian Trust Asset Reform Act, Public Law 114-178, was signed into law. Title III of the Act requires the Department of the Interior (Interior) to establish minimum qualifications for individuals to prepare appraisals and valuations of Indian trust property and allow an appraisal or valuation by a qualified person to be considered final without being reviewed or approved by Interior.

On September 22, 2016, Interior published a proposed rule (81 FR 65319) to implement ITARA and requested public comments for 60 days. This final rule implements ITARA and responds to the comments received on the proposed rule. This rule establishes the minimum qualifications for individuals to prepare appraisals and valuations of Indian trust property and allows an appraisal or valuation by a qualified appraiser to be considered final without being reviewed or approved by Interior.

The Act also requires appraisals and valuations of Indian trust property to be administered by a single administrative entity within Interior. This rule is finalized under the Office of the Secretary within the Department of the Interior to allow for flexibility if another entity or agency within Interior is designated the single entity to administer appraisals and valuations of Indian trust property.

This rule establishes a new Code of Federal Regulations (CFR) part to establish the minimum qualifications for appraisers, employed by or under contract with an Indian tribe or individual Indian, to become qualified appraisers who may prepare an appraisal or valuation of Indian property that will, in certain circumstances, be accepted by the Department without further review or approval. The final rule clarifies that, because the Department is not reviewing and approving the appraisal or valuation, it is not liable for any deficiency or inaccuracy in the appraisal or valuation.

Subpart A, General Provisions, defines terms used in the regulation, describes the purpose of the regulation, and provides the standard Paperwork Reduction Act compliance statement. The terms are defined to include, in the context of this regulation, any property that the U.S. Government holds in trust or restricted status for an Indian tribe or individual Indian, to include not just land, but also natural resources or other assets. Other important terms include “appraisal,” “valuation,” and “qualified appraiser.” Consistent with the statutory direction, the purpose of the regulations is written broadly, to include appraisals or valuations of any Indian trust property, including:

• Appraisals and valuations of real property;

• Appraisals and valuations of timber, minerals, or other property to the extent they contribute to the value of the whole property (for use in appraisals and valuations of real property); and

• Appraisals and valuations of timber, minerals, or other property separate from appraisals and valuations of real property.

Subpart B, Appraiser Qualifications, establishes the minimum qualifications an appraiser must meet to be considered a “qualified appraiser” and establishes that the Secretary must verify that the appraiser meets those minimum qualifications.

This subpart requires that the verification information be submitted contemporaneously with the appraisal or valuation so that the Secretary can verify that the appraiser is a qualified appraiser at that point in time.

Subpart C, Appraisals and Valuations, notes that some transactions requiring Secretarial approval under titles 25 and 43 of the Code of Federal Regulations (e.g., 25 CFR part 162, Leases and Permits; 25 CFR part 169, Rights-of-Way on Indian Land) require the submission of appraisals and valuations to the Department. This subpart also sets out the circumstances in which the Department will forego review and approval of the appraisal or valuation. The rule requires submission of the appraisal or valuation to the Department regardless of whether the Department will be reviewing and approving the appraisal or valuation. This requirement is included because the Department must use the results of the appraisal or valuation in completing the transaction requiring Secretarial approval.

The rule requires the Department to forego review and approval of the appraisal or valuation and consider the appraisal or valuation final if three conditions are met: (1) The appraisal or valuation was completed by a qualified appraiser; (2) the Indian tribe or individual Indian expressed their intent to waive Departmental review and approval; and (3) no owner of any interest in the Indian property objects to the use of the appraisal or valuation without Departmental review and approval. The first condition is clearly required by ITARA. The second condition is implied by ITARA. The number of individual Indian owners of fractionated tracts that must express their intent to waive Departmental review and approval, under the second condition, would depend upon the underlying title 43 or title 25 requirements. For example, if the underlying transaction is a right-of-way, then the owners of a majority of the interests in the tract must express their intent to waive Departmental review and approval, consistent with the general consent requirements in 25 CFR part 169. The third condition, that no Indian property owner objects, is necessary to address situations where one or more owners of the tract still want Departmental review and approval of the appraisal or valuation, consistent with our trust responsibility to all owners of the Indian trust property.

This subpart exempts certain transactions, thereby requiring Departmental review of the appraisal or valuation. The exempted transactions include transactions under any legislation expressly requiring the Department to review and approve an appraisal or valuation, such as the Land Buy Back Program under the Claims Resolution Act of 2010 (Pub. L. 111-291), and purchase at probate under 43 CFR part 30, because the judge will not be in a position to verify an appraiser's qualifications. The Department will also review any appraisal for an acquisition by the United States.

Several tribes stated their support of the ITARA provision to eliminate the current requirement for Office of Appraisal Services review to reduce delays. One tribe noted the importance of the Department accepting and approving, without further review or delay, any appraisal or valuation that complies with the appraiser's qualification standards and is satisfactory to the Indian property owner. Another tribe stated its support for the minimum qualifications for appraisal services.

Response: This rule allows the Department to carry out Congress's specific direction in ITARA that the Department should not review or approve appraisals submitted by qualified appraisers.

One tribe stated that the qualifications for individuals to prepare appraisals and valuations of Indian property should be the same that apply to professional appraisers in the private sector.

Response: The Department agrees with this comment and has strived to match the requirements for qualified appraisers to those requirements currently in place for its own appraisers and contracted appraisers.

One tribe stated the procedures should require: (1) Departmental approval of appraisers who satisfy minimum qualifications; (2) Departmental review within a specified period with a default of automatic approval; (3) minimum requirements for qualifications of review appraisers.

Response: This rule establishes minimum qualifications for appraisers conducting appraisals that do not need Departmental review. The Department will review the appraiser's qualifications to determine whether the appraiser meets the minimum qualifications when the appraisal is submitted. The tribe's request for a Departmental review of the appraiser's qualifications within a specified period, with a default of automatic approval, is not necessary because the process of ensuring an appraiser meets the minimal qualifications is intended to be less burdensome and faster than a review of the appraisal.

One commenter stated that the rule's minimum qualifications for appraisers should be more stringent and the rule should require appraisals to be performed by a multidisciplinary group of experts who: (1) Meet all the criteria in the rule; (2) have completed a mandatory valuation ethics training course; and (3) have collaborated with Native American groups to better understand the cultural value of the lands in question. This commenter stated that the appraisal must account for cultural values of those with sacred ties to the ecosystems and lands. The commenter reasoned that the process of assigning value to an area is subjective, and using the knowledge and methodologies of a diverse group of experts and stakeholders would prevent a single individual from the power to assign a monetary value to sacred land.

Response: The final rule does not incorporate the commenter's suggestions because an appraisal or valuation is, by definition, the opinion as to a property's value of a single person qualified to give such an opinion, rather than, as suggested by the commenter, the opinion of a multi-disciplinary team. The final rule's requirements for State licensure, good standing, and compliance with the Uniform Standards of Professional Appraisal Practice (USPAP) address the commenter's other concerns.

The Appraisal Institute stated that requiring generally accepted standards in the appraiser qualification criteria would enhance credibility and reliability of the appraisals being performed.

Response: Section 100.200 of the rule requires qualified appraisers to meet USPAP rules and provisions applicable to appraisers, which are generally accepted standards; therefore, no change to the final rule is necessary in response to this comment.

Several tribes strongly objected to relying on State licensing for appraisers and a determination of good standing by State regulatory agencies, and asserted that the rule should instead rely on tribal licensing and require compliance with tribal laws and regulations.

Response: Under the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), 12 U.S.C. 3331 et seq., each U.S. State or territory has a real estate appraiser regulatory agency that is responsible for licensing and certifying real estate appraisers and supervising their appraisal-related activities, as required by Federal law. The Appraisal Subcommittee of the Federal Financial Institutions Examination Council has oversight authority over the States and The Appraisal Foundation to ensure the minimum qualifying criteria to license and certify real estate appraisers are implemented and that appraisers are held to a professional set of ethical standards. The final rule does not require compliance with tribal appraiser certification in lieu of State certification because, currently, State certification programs are the industry standard under FIRREA. In fact, the Department is unaware of a currently operating tribal appraiser certification program and requires State certification of its own appraisers and contractor appraisers. Tribes are welcome to adopt their own standards for appraisers; however, for the Department to accept the appraisal or valuation without further review, it would have to review the tribe's standards contemporaneously with the appraisal. In other words, only the State license and standards allow the Department to accept an appraisal without further review at this time.

The DOI Self-Governance Advisory Committee and several tribes stated that tribes should be permitted to adopt their own standards consistent with USPAP and Federal law to meet the unique needs tribal Nations have in assuming appraisal responsibilities.

Response: This rule provides that it will accept an appraisal or valuation without Departmental review only if the appraiser is a “qualified appraiser,” meaning, among other things, that the appraiser has a Certified General Appraiser license in the State in which the property is located, and complies with USPAP provisions applicable to appraisers. Tribes are welcome to adopt their own standards for appraisers; however, for the Department to accept the appraisal or valuation without further review, it would have to review the tribe's standards contemporaneously with the appraiser qualifications that are being submitted with the appraisal under this part.

A tribal member suggested that tribes should have their own appraisal process so they don't have to pay $2,500 for an appraisal that reveals a property value of much less.

Response: This rule will allow for the use of qualified appraisers at whatever cost they are available. To the extent the commenter is addressing the regulation's requirement to use appraisers qualified to conduct commercial appraisals even where the property may only require qualifications to conduct a residential appraisal, it is important to keep in mind that this rule does not require such appraiser qualifications in all instances. Rather, this rule requires those heightened appraiser qualifications only if the appraisal is being submitted for Departmental acceptance without further Departmental review.

One tribe stated that not all appraisers have the General Appraiser certification (e.g., residential appraisers), and that it is an additional burden to require it because it is hard to find appraisers on reservations and will be even harder to find appraisers with the General Appraiser certification. This tribe stated that, instead, the type of land being appraised should drive the qualifications for the appraiser. Likewise, another tribe stated that the use of a “Certified General Appraiser” in certain geographic areas, for example in the State of Oklahoma, would be futile and suggests instead requiring use of a “licensed appraiser.” Alternatively, the tribe suggests adding that the requirement for a Certified General Appraiser be waived if the tribe has made diligent efforts but has been unable to procure the services of a Certified General Appraiser.

Response: The General Appraiser license is required for a “qualified appraiser” because these are appraisers that can submit any appraisal without further Departmental review or approval. If an appraiser has a license specific to residential appraisals, the appraiser may conduct its residential appraisals under the license, but the Department must review the appraisal to ensure that the appraisal is within the scope of the appraiser's license.

A tribe stated that the appraiser should have expertise in valuation of resources involved in the appraisal. Likewise, the Indian Land Tenure Foundation noted that the appraiser performing specialty appraisals (timber and minerals) must have demonstrated the specialized skills.

Response: Section 100.200(a)(3) requires compliance with USPAP competency requirements applicable to the type of property being appraised or valued, including competency in timber and mineral valuations if applicable to the subject property.

A tribal commenter stated that the rule should require appraisers to have an understanding of general Federal Indian law and special obligations under tribe-specific relationships.

Response: The rule does not impose the requirement for appraisers to have expertise in Federal Indian law or tribal relationships because this expertise is not necessary to conduct an accurate appraisal and, if required, would likely narrow the universe of qualified appraisers to an untenable supply level.

A tribal member suggested requiring appraisers to be certified under the Certified Federal Surveyor Program from the Bureau of Land Management.

Response: The final rule does not incorporate this suggestion because the Certified Federal Surveyor program applies to surveyors, rather than appraisers.

The Appraisal Institute urged the Department to include in the minimum qualifications for appraisers recognition of professional designations from nationally recognized appraisal organizations that confer competency-based designations. The commenter suggested that a professional designation is necessary to ensure appraisers have experience with appraisal review because the Department will not be reviewing the appraiser's appraisals. The Appraisal Institute stated that eliminating Departmental review of the appraisal dramatically increases risks and likened the practice to performing accounting functions without any audit processes.

Response: The final rule does not impose the additional requirement requested by the commenter for professional designation from a nationally recognized appraisal organization because the rule already requires qualified appraisers to have experience with appraisal review, as demonstrated by a State-issued appraisal license, good standing with the State appraiser regulatory agency, and compliance with the Uniform Standards of Professional Appraisal Practice (USPAP) rules, including competency provisions. See 43 CFR 100.200. The additional requirement is unnecessary and the Department does not require this designation for its own contractors conducting appraisals.

A tribe suggested having appraisers register online for searchability by those who would like to hire them to do appraisals and valuations.

Response: The Appraisal Subcommittee has an online, searchable database of appraisers, and most State appraisal boards have searchable databases of appraisers licensed by that State.

One tribe stated that periodic review of qualifications should be required as standards and experience with individual appraisers change over time.

Response: The rule requires the appraiser to submit qualifications with each appraisal to allow for Department's review of the appraiser's qualifications.

A tribal member stated that there is a fundamental misunderstanding as to what an appraisal is: Specifically, that an appraisal is not equivalent to value; rather, it is an expert opinion to inform the owners (the beneficiary) and trustee as to what somebody's opinion of fair market value is.

Response: The Department agrees with this comment.

A tribal member asked whether an appraisal and a valuation are different, and whether either evaluates tribal rights such as water rights or gathering rights for medicine.

Response: The final rule defines “appraisal” and “valuation” slightly differently; however, whether either evaluates tribal water rights or other rights will be determined by the statute and regulations authorizing the transaction rather than this regulation.

Another tribal member stated that allotted land makes up most of the workload for appraisals, but under ILCA, only an “estimate of value” rather than an appraisal, is needed for a gift, sale, or exchange. He suggested instead defining what an “estimate of value” is.

Response: This rule is establishing minimum qualifications for appraisers who may complete appraisals that the Department will rely upon without further review. The rule's definition of “valuation” could include the “estimate of value” mentioned by the commenter. If that “estimate of value” is prepared by an appraiser who meets the minimum qualifications of this rule, then the Department would accept the estimate of value without further review.

Several tribes recommended that any appraisal or valuation of Indian property be in accordance with authority in title 25 of the CFR, appraisal standards in the current edition of USPAP, and use of appraisal industry-recognized valuation methods and techniques.

Response: This rule does not establish appraisal standards. The standards for appraisals or valuations of Indian property are already set out in memoranda of understanding that govern tribes with a self-governance compact or contract.

Several tribes suggested requiring adherence to the Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA) if the transaction is to the United States.

Response: The final rule, at § 301(b)(2), clarifies that transactions transferring Indian property to the United States where the UASFLA applies are exempt from this rule.

The Appraisal Institute stated that the proposed regulations should include a requirement that the appraisal or valuation reflect market value (as opposed to another value, such as “use value”) because market value is most appropriate to determine “just compensation” for a public use and otherwise because the standards have long been held as fair, reasonable, and just by Federal and local governments as the basis for Federal land acquisitions, land leases, rights-of-way, and other dispositions or uses.

Response: This rule does not establish appraisal standards. The statute and regulations governing the particular transaction would dictate the standard for value to be used in the appraisal. To make the purpose of this new CFR part more transparent, the final rule updates the title of the CFR part from “Appraisals and Valuations of Indian Property” to “Waiving Departmental Review of Appraisals and Valuations of Indian Property.” Likewise, the final rule updates the subtitle C heading to “Appraisals and Valuations; Departmental Review and Waivers.”

One commenter stated that there is no rule that could guarantee a credible appraisal because the client may dictate conditions and instructions to an appraiser that affects the result, so the appraisal review serves as a check and ensures the client's instructions adequately support approval for the conveyance.

Response: The Department agrees with this comment. In ITARA, Congress allowed for reliance on an appraisal without Departmental review of the appraisal.

One tribe stated requirements for formal appraisals for transactions for negotiated sales involving informed consent of owners should be clarified.

Response: This suggestion is outside the scope of the authority Congress granted for rulemaking in ITARA. This rule does not specifically address requirements for appraisals regarding negotiated sales; this rule establishes the minimum qualifications for an appraiser in those situations where the appraisal of Indian property will not be subject to Departmental review.

The Indian Land Tenure Foundation stated that a waiver of Departmental review should come after the appraisal is complete and not in the submission of the appraisal request.

Response: The Department agrees; § 100.203 requires submission of the request for waiver of Departmental review to accompany the appraisal.

The Foundation also stated that the practice of requiring the appraiser to attach a certificate of qualifications to each appraisal is not a burden and should be required.

Response: The Department agrees; the person or entity submitting the appraisal has the option to waive Departmental review or not. If the submitter chooses to seek a waiver of Departmental review, then a certificate of the appraiser's qualifications must be included.

The American Gas Association, Interstate Gas Association of American, and the Utilities Group stated that ITARA was limited to those transactions where statutes expressly require an appraisal or valuation (such as the Indian Land Consolidation Act) and should not apply to all potential transactions under titles 25 and 43 (e.g., rights-of-way and renewals). These commenters pointed out that Section 305 of ITARA [25 U.S.C. 5635(c)(2)] applies only to those Indian land transactions “for which an appraisal or valuation is required,” while proposed § 100.300 would require an appraisal or valuation for all transactions requiring Secretarial analysis and approval under titles 25 and 43 of the CFR. The gas associations suggested addressing this by revising §§ 100.300 and 100.301 to state that appraisals and valuations must be submitted for transactions “requiring appraisals as part of their authorization statute” and where “an appraisal or valuation of the property is expressly required by the statute authorization the transaction.” These commenters stated that the automatic approval does not serve either tribes' or applicants' interest in transactions under statutes other than those specifically requiring an appraisal, for example, where Congress already addressed the standard and process for valuation by requiring Secretarial approval of just compensation.

Response: ITARA does not discuss when an appraisal or valuation is required and this rulemaking does not affect whether a particular transaction requires an appraisal or valuation. The final rule does, however, refine § 100.300 to clarify that appraisals and valuations are not required for all transactions requiring Secretarial approval under titles 25 and 43 of the CFR.

Several utilities and utility associations expressed concerns about the effect of the rule on projects and rights-of-way that serve the public's energy needs. Some stated that the rule should not apply to rights-of-way transactions because those transactions have their own statutory scheme. Some also stated that the rule conflicts with existing statutes governing rights-of-way across Indian land, and specifically the statutory requirement for “the payment of such compensation as the Secretary of the Interior shall determine to be just,” because the rule would allow an appraisal to be deemed final without the Secretary assuring just compensation. See 25 U.S.C. 325.

Response: As discussed above, the statute and regulations governing the particular transaction determine whether an appraisal or valuation is required for that transaction. The Secretary may use an appraisal or a valuation as a tool for determining whether there is “just compensation” under the cited statute. For rights-of-way, the regulations at 25 CFR part 169 establish how the Secretary determines whether there is “just compensation” and provides for use of an appraisal or valuation as a tool for that determination under certain circumstances. This rule merely allows for the use of an appraisal or valuation without Departmental review of the appraisal or valuation under ITARA (as opposed to Departmental review of whether there is “just compensation”).

Several of these utility group commenters stated that, if the rule does apply to rights-of-way transactions, then the rule should require a fair market value as just compensation for rights-of-way and renewals to public entities and utilities that benefit the public interest. Commenters stated that allowing above-market valuations would allow tribes, without monitoring by the Secretary, to attempt to take advantage of the public interest by exploiting the public entities' and utilities' presence on Federal trust land. One commenter likewise stated its concern that the rule will permit tribes to demand in excess of fair market value for renewals of rights-of-way for public entities and public utilities that benefit the public interest. The commenter stated that it made investments in infrastructure in reliance on use of fair market value as the standard for the rights-of-way and renewals under the right-of-way statutory framework requiring just compensation to be fair market value.

Response: These comments are beyond the scope of this rulemaking because this rulemaking addresses only appraiser qualifications for appraisals to be submitted and used without Departmental approval. This rulemaking does not address the standard for the underlying transaction. The statute and regulations governing the particular transaction determine whether fair market value or another standard is required.

One tribe opposed the provision in the preamble and discussed at tribal consultation sessions that would have stated that the Department is not liable for approving transactions based on appraisals submitted by a qualified appraisal. The tribe's opposition is to the apparent diminishment of the Federal trust responsibility. This tribe suggested Federal tort claims coverage or some other protection is appropriate to meet the trust responsibility, even where the tribe operates the program under self-governance. Another tribe stated there should be a presumption of Department liability for inaccurate appraisals unless the Department disapproved the appraisal.

Response: The final rule, at section 304, adds regulatory text to explicitly state the Department's position that it cannot be liable for any deficiency or inaccuracy in the appraisal or valuation in those cases in which the tribe or individual Indian waives Departmental review and approval of the appraisal or valuation. A disclaimer of liability was discussed in the preamble to the proposed rule to inform individuals and entities who elect to forego Departmental review (as authorized by ITARA and this rule) that they are assuming any risks associated with their reliance upon the appraisal or valuation. It would be unreasonable to impose liability on the Department for appraisals the Department did not prepare and was specifically prohibited from reviewing at the direction of the individual or entity submitting it. The trust responsibility does not require that the Government act contrary to law, i.e., to review an appraisal or valuation we are specifically prohibited from reviewing. When an individual or entity chooses to waive Departmental review of the submission, that individual should not expect to be able to obtain relief from the Department for any negative consequences stemming from their use of that appraisal or valuation.

A tribal member suggested having an online training program for appraisers.

Response: This comment is outside the scope of this rulemaking, but the Department suggests checking with the State for any appraiser training programs.

A utilities group and gas associations stated their belief that the rule is a major rule under 5 U.S.C. 804(2) and a significant regulatory action under E.O. 12866. These commenters stated that a cost-benefit analysis is required because the rule: (1) Will result in a major increase in the costs of rights-of-way for state and local governments and public utilities, which will adversely affect industry and millions of consumers and taxpayers nationwide; and (2) will have an aggregate effect of over $100 million on the economy because of staggering renewal rates and the thousands of miles of rights-of-way across the nation. One gas company commenter also noted the escalating costs of rights-of-way through Indian lands and that the rule exacerbates the issue by failing to make clear that fair market value is the appropriate standard for appraising and valuing rights-of-way for public entities and utilities.

Response: This rule is not a major rule under 5 U.S.C. 804(2) or a significant regulatory action under E.O. 12866 because the rule addresses only whether the Department will review the appraiser's qualifications or will review each individual appraisal. The contents or use of any particular appraisal or group of appraisals for a particular type of transaction is speculative and beyond the scope of this regulation.

One commenter stated that if the proposed rule violates a treaty, then it should not go into effect.

Response: The Department is unaware of the rule violating any treaty.

A few commenters noted there has been, and will be, an increase in the demand for appraisals due to the Land Buy-Back Program and the purchase at probate provision.

Response: While these commenters may be correct regarding the demand for appraisals, this rule exempts appraisals conducted under the Land Buy-Back Program and the purchase at probate provisions of the American Indian Probate Reform Act of 2004.

One tribe stated that development and use of mass appraisal systems and use of qualified third-party appraisers should be encouraged because there is a delay in Departmental review and approval of appraisals that has resulted in lost opportunities and repetitive appraisals because their longevity is limited.

Response: The portion of the comment regarding mass appraisal systems is outside the scope of this rulemaking. This rule allows the use of qualified third-party appraisers.

A tribal attorney stated that the rule should add a requirement to allow beneficiaries to view the work papers in appraisal reports.

Response: This suggestion is outside the scope of the authority Congress granted for rulemaking in ITARA. Further, the Department was unable to identify legal authority to require the release of information under the control of the appraiser-client relationship.

A tribal attorney stated that the rule should include language that appraisals will not expire.

Response: This suggestion is outside the scope of the authority Congress granted for rulemaking in ITARA.

A tribal member suggested a central Web site for value of the land.

Response: This suggestion is outside the scope of the authority Congress granted for rulemaking in ITARA and may pose Privacy Act issues.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It does not change current funding requirements and any economic effects on small entities (e.g., the cost to obtain an appraiser license) would be incurred as part of their normal cost of doing business.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a) Will not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

This rule does not effect a taking of private property or otherwise have taking implications under E.O. 12630. A takings implication assessment is not required.

Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have identified substantial direct effects on federally recognized Indian tribes that will result from this rulemaking. Tribes may be substantially and directly affected by this rulemaking because it allows for the submission of appraisals for transactions involving Indian property without Departmental review and approval. As such, the Department consulted with tribes on this rule as part of the consultation sessions addressing ITARA and hosted listening sessions with Indian tribes and trust beneficiaries at:

This rule contains an information collection that requires approval by OMB. The Department is seeking approval of a new information collection and a revision to an existing regulation, as follows.

OMB Control Number: 1076-0188.

Title: Appraisals & Valuations of Indian Property, 43 CFR 100.

Brief Description of Collection: The Department is proposing to establish minimum qualifications for appraisers of Indian property that require the submission of the appraiser's qualifications to the Department for verification. Submission of the appraisal or valuation itself is already authorized by other OMB Control Numbers under the associated 43 CFR or 25 CFR part (for example, the submission of appraisals for leasing of Indian land is included in the lease information collection authorized by OMB Control Number 1076-0181).

Type of Review: New collection.

Respondents: Individuals and Private Sector.

Obligation to Respond: To Obtain or Retain a Benefit.

Number of Respondents: 155.

Number of Responses: 465

Frequency of Response: 3 per year, on average.

Estimated Time per Response: One hour.

Estimated Total Annual Hour Burden: 465 hours.

Estimated Total Annual Non-Hour Cost Burden: $0.

A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless the form or regulation requesting the information displays a currently valid OMB Control Number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation. (For further information see 43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

This action is not an E.O. 13771 regulatory action because it imposes no more than de minimis costs.

For the reasons given in the preamble, the Department of the Interior amends 43 CFR subtitle A, by adding part 100 to read as follows:

In the 2016 annual management measures for ocean salmon fisheries (81 FR 26157, May 2, 2016), NMFS announced the commercial and recreational fisheries in the area from the U.S./Canada border to the U.S./Mexico border, beginning May 1, 2016, and 2017 salmon fisheries opening earlier than May 1, 2017. NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Inseason actions in the salmon fishery may be taken directly by NMFS (50 CFR 660.409(a)—Fixed inseason management provisions) or upon consultation with the Pacific Fishery Management Council (Council) and the appropriate State Directors (50 CFR 660.409(b)—Flexible inseason management provisions). The state management agencies that participated in the consultations described in this document were: California Department of Fish and Wildlife (CDFW) and Oregon Department of Fish and Wildlife (ODFW).

Management of the salmon fisheries is generally divided into two geographic areas: North of Cape Falcon (U.S./Canada border to Cape Falcon, OR) and south of Cape Falcon (Cape Falcon, OR, to the U.S./Mexico border). The inseason actions reported in this document affected fisheries south of Cape Falcon. Within the south of Cape Falcon area, the Klamath Management Zone (KMZ) extends from Humbug Mountain, OR, to Humboldt South Jetty, CA, and is divided at the Oregon/California border into the Oregon KMZ to the north and California KMZ to the south. All times mentioned refer to Pacific daylight time.

Description of action: Inseason action #1 modified the commercial salmon fishery from Cape Falcon, OR, to Humbug Mountain, OR, previously scheduled to open March 15, 2017, to remain closed through April 14, 2017.

Effective dates: Inseason action #1 took effect on March 15, 2017, and remained in effect until superseded by inseason action #4 on April 15, 2017.

Reason and authorization for the action: The purpose of this action was to conserve fishery impacts on the Klamath River fall Chinook stock (KRFC). The Council's Salmon Technical Team (STT) presented stock abundance forecasts for 2017. On the basis of these forecasts, the Regional Administrator (RA) determined that fisheries south of Cape Falcon, OR, will be constrained in 2017 to comply with the harvest control rule for KRFC, specified in the Pacific Coast Salmon Fishery Management Plan (FMP). Inseason actions to modify quotas and/or fishing seasons are authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #1 occurred on March 12, 2017. Participants in this consultation were staff from NMFS, CDFW, ODFW, and Council staff.

Description of action: Inseason action #2 modified the commercial salmon fishery from Humbug Mountain, OR, to the Oregon/California Border (Oregon KMZ), previously scheduled to open March 15, 2017, to remain closed through April 30, 2017.

Effective dates: Inseason action #2 took effect on March 15, 2017, and remained in effect through April 30, 2017.

Reason and authorization for the action: The purpose of this action was to conserve fishery impacts on the KRFC. The STT presented stock abundance forecasts for 2017. On the basis of these forecasts, the RA determined that fisheries south of Cape Falcon, OR, will be constrained in 2017 to comply with the harvest control rule for KRFC, specified in the FMP. Inseason actions to modify quotas and/or fishing seasons are authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #2 occurred on March 12, 2017. Participants in this consultation were staff from NMFS, CDFW, ODFW, and Council staff.

Description of action: Inseason action #3 cancelled the commercial salmon fishery from Horse Mountain, CA, to Point Arena, CA (Fort Bragg management area), previously scheduled to open April 16-30, 2017.

Effective dates: Inseason action #3 took effect on April 16, 2017, and remained in effect through April 30, 2017.

Reason and authorization for the action: The purpose of this action was to conserve fishery impacts on the KRFC. The STT presented stock abundance forecasts for 2017. On the basis of these forecasts, the RA determined that fisheries south of Cape Falcon, OR, will be constrained in 2017 to comply with the harvest control rule for KRFC, specified in the FMP. Inseason actions to modify quotas and/or fishing seasons are authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #3 occurred on March 12, 2017. Participants in this consultation were staff from NMFS, CDFW, ODFW, and Council staff.

Description of action: Inseason action #4 modified the commercial salmon fishery from Cape Falcon, OR, to Humbug Mountain, OR. Under inseason action #1, above, this fishery, which was previously scheduled to open March 15, 2017, was closed through April 14, 2017. Under inseason action #4, the management area was divided at Florence South Jetty, OR, into two management areas; the fishery from Florence South Jetty, OR, to Humbug Mountain, OR, which remained closed through April 30, 2017; and the fishery from Cape Falcon, OR, to Florence South Jetty, OR, which opened April 15 through April 30, 2017, with the same landing requirements and gear restrictions as announced in the 2016 management measures (81 FR 26157, May 2, 2016).

Effective dates: Inseason action #4 superseded inseason action #1 on April 15, 2017, and remained in effect through April 30, 2017.

Reason and authorization for the action: The purpose of this action was to manage fishery impacts on KRFC while allowing access to more abundant stocks. On the basis of salmon abundance forecasts, the RA determined that fisheries south of Cape Falcon, OR, will be constrained in 2017 to comply with the harvest control rule for KRFC, specified in the FMP. Inseason actions to modify quotas and/or fishing seasons are authorized by 50 CFR 660.409(b)(1)(i); inseason actions to modify boundaries, including landing boundaries, and establish closed areas are authorized by 50 CFR 660.409(b)(1)(v).

Consultation date and participants: Consultation on inseason action #4 occurred on April 10, 2017. Participants in this consultation were staff from NMFS, CDFW, ODFW, and Council staff.

All other restrictions and regulations remained in effect as announced for the 2016 ocean salmon fisheries and 2017 salmon fisheries opening prior to May 1, 2017 (81 FR 26157, May 2, 2016) and as modified by prior inseason actions.

The RA determined that the best available information indicated that Chinook salmon abundance forecasts and expected fishery effort supported the above inseason actions recommended by the states of Oregon and California. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the time the action was effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (81 FR 26157, May 25, 2016), the FMP, and regulations implementing the FMP, 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook salmon catch and effort projections were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best available scientific information, ensuring that conservation objectives and Endangered Species Act consultation standards are not exceeded. The AA also finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3), as a delay in effectiveness of these actions would allow fishing at levels inconsistent with the goals of the FMP and the current management measures.

These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.