Federal Register Vol. 82, No.125,

In 2000, when it adopted a regulation codified at 12 CFR 709.10,1 the Board clarified the scope of its statutory authority as conservator or liquidating agent to disaffirm or repudiate contracts of an FICU with respect to transfers of financial assets by a FICU in connection with a securitization or participation. Current § 709.10 provides that a conservator or liquidating agent will not use its statutory authority to disaffirm or repudiate contracts to reclaim, recover, or recharacterize as property of a FICU or the liquidation estate any financial assets transferred by the FICU in connection with a securitization or in the form of a participation, provided that such transfer meets all conditions for sale accounting treatment under generally accepted accounting principles (“GAAP”).2 Current § 709.10 also provides a “safe harbor” by confirming “legal isolation” if all other standards for off balance sheet accounting treatment, along with some additional conditions focusing on the enforceability of the transaction, were met by the transfer in connection with a securitization or a participation. Satisfaction of “legal isolation” is vital to securitization transactions because of the risk that the pool of financial assets transferred into the securitization trust could be recovered in bankruptcy or in a credit union liquidation. Generally, to satisfy the legal isolation condition, the transferred financial assets must have been presumptively placed beyond the reach of the transferor, its creditors, a bankruptcy trustee, or in the case of a FICU, NCUA as conservator or liquidating agent. Thus, current § 709.10 addresses only purported sales which meet the conditions for off balance sheet accounting treatment under GAAP. The implementation of accounting rules since 2000, however, has created uncertainty for loan participation and potential securitization participants.

In 2009, the Financial Accounting Standards Board (“FASB”) finalized modifications to GAAP through Statement of Financial Accounting Standards No. 166, (now codified in FASB Accounting Standards Codification (ASC) Topic 860, Transfers and Servicing) and Statement of Financial Accounting Standards No. 167 (now codified in FASB ASC Topic 810, Consolidation) (together, the “2009 GAAP Modifications”). The 2009 GAAP Modifications made changes that affect whether a special purpose entity (“SPE”) must be consolidated for financial reporting purposes, thereby subjecting many SPEs to GAAP consolidation requirements. These accounting changes could require a FICU to consolidate an issuing entity to which financial assets have been transferred for securitization on to its balance sheet for financial reporting purposes primarily because an affiliate of the FICU retains control over the financial assets. Given the 2009 GAAP Modifications, legal and accounting treatment of a transaction may no longer be aligned. As a result, the safe harbor provision of the 2000 Rule may not apply to a transfer in connection with a securitization that does not qualify for off balance sheet accounting treatment.

FASB ASC Topic 860 also affects the treatment of participation interests transferred by a FICU, in that it defines participating interests as pari-passu, pro-rata interests in financial assets, and subjects the sale of a participation interest to the same conditions as the sale of financial assets. FASB ASC Topic 860 provides that transfers of participation interests that do not qualify for sale treatment will be viewed as secured borrowings. While the GAAP modifications have some effect on participations, most participations are likely to continue to meet the conditions for sale accounting treatment under GAAP.

In 2005, Congress enacted Section 207(c)(13)(C) 3 of the Federal Credit Union Act (the “FCU Act”).4 This paragraph generally provides that no person may exercise any right or power to terminate, accelerate, or declare a default under a contract to which the FCU is a party, or obtain possession of or exercise control over any property of the FCU, or affect any contractual rights of the FCU, without the consent of the conservator or liquidating agent, as appropriate, during the 45-day period beginning on the date of the appointment of the conservator or the 90-day period beginning on the date of the appointment of the liquidating agent. If a securitization is treated as a secured borrowing, section 207(c)(13)(C) could prevent the investors from recovering monies due to them for up to 90 days. Consequently, securitized assets that remain property of the FCU (but subject to a security interest) would be subject to the stay, raising concerns that any attempt by securitization investors to exercise remedies with respect to the FCU's assets could be delayed. During the stay, interest and principal on the securitized debt could remain unpaid. This 90-day delay could cause substantial downgrades in the ratings provided on existing securitizations and could prevent planned securitizations for multiple asset classes, such as credit cards, automobile loans, and other credits, from being brought to market.

In response to the changes outlined above, on June 26, 2014, the Board issued a notice of proposed rulemaking (Proposal) to revise the agency's safe harbor provisions.5 The Proposal was prompted in part by the Federal Deposit Insurance Corporation's (FDIC's) decision in 2010 to issue a final rule to resolve the issues raised by the 2009 GAAP modifications and parallel 2005 changes to the Federal Deposit Insurance Act.6 To avoid unnecessary complexity and assure loan participants and securitization investors, the Proposal was modeled on the FDIC's safe harbor rule, which is codified at 12 CFR 360.6, Treatment of Financial Assets Transferred in Connection with a Securitization or Participation.

The Proposal sought to address concerns of securitization investors and loan participants regarding the impact of the 2009 GAAP Modifications on the eligibility of transfers of financial assets for safe harbor protection by clarifying the position of the conservator or liquidating agent under established law. Under section 207(c)(12) of the FCU Act, the conservator or liquidating agent cannot use its statutory power to repudiate or disaffirm contracts to avoid a legally enforceable and perfected security interest in transferred financial assets “except where such an interest is taken in contemplation of the credit union's insolvency or with the intent to hinder, delay or defraud the credit union or the creditors of such credit union.” 7 This provision applies whether or not a securitization or participation transaction meets the conditions for sale accounting. The Proposal sought to clarify that, prior to any monetary default or repudiation, the conservator or liquidating agent would consent to the making of required payments of principal and interest and other amounts due on the securitized obligations during the statutory stay period.

In addition, the Proposal stated that, if the conservator or liquidating agent decides to repudiate the securitization transaction, the payment of repudiation damages in an amount equal to the par value of the outstanding obligations on the date of liquidation will discharge the lien on the securitization assets.

Following issuance of NCUA's Proposal, the FDIC issued two additional rules revising its securitization safe harbor rule to (1) be consistent with regulations required under Section 15G of the Securities and Exchange Act, 15 U.S.C. 78a et seq. pursuant to section 941(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act; 8 and (2) clarify that the documents governing a securitization transaction need not require an action prohibited under Regulation X (12 CFR part 1024).9 The Board has reviewed these changes and believes they are within the scope of the Proposal; consistent with current accepted standards and practices within the securitization industry; and uncontroversial enough in nature so that the public would not reasonably benefit from being given an additional opportunity to provide comments on these minor changes. Accordingly, the Board has amended the original proposed language to incorporate those conforming amendments into § 709.10(b)(5)(i) and (b)(3)(ii)(A) of this final rule. The amendments are discussed in more detail below.

NCUA received seven comments on the Proposal to continue the safe harbor for financial assets transferred in connection with securitizations and participations in which the financial assets transferred in connection with the securitization. All the commenters supported the Proposal, stating that investors would have no interest in pursuing securitizations without the safe harbor protections. Two commenters, however, did question the proposed limit of six tranches in a securitization. One commenter also questioned the proposed limits on external credit enhancements. These comments are discussed in more detail below. Based on the rationale previously set forth, the commenters overwhelming support, and for the reasons explained in more detail below, the Board has decided to finalize the Proposal with only the slight modification mentioned above to § 709.10(b)(5)(i).

Consistent with the Proposal, this final rule replaces current § 709.10 of NCUA's regulations. Section 709.10(a) of the rule sets forth definitions of terms used in the rule. It retains many of the definitions used in the current § 709.10(a), but modifies or adds definitions to the extent necessary to accurately reflect current industry practice in securitizations. Pursuant to these definitions, the safe harbor does not apply to certain government sponsored enterprises (“Specified GSEs”), affiliates of certain such enterprises, or any entity established or guaranteed by those GSEs. In addition, the rule is not intended to apply to the Government National Mortgage Association (“Ginnie Mae”) or Ginnie Mae-guaranteed securitizations. When Ginnie Mae guarantees a security, the mortgages backing the security are assigned to Ginnie Mae, an entity owned entirely by the United States government. Ginnie Mae's statute contains broad authority to enforce its contract with the lender/issuer and its ownership rights in the mortgages backing Ginnie Mae-guaranteed securities. In the event that an entity otherwise subject to the rule issues both guaranteed and non-guaranteed securitizations, the securitizations guaranteed by a Specified GSE are not subject to the rule.

Section 709.10(b) of this final rule imposes conditions to the availability of the safe harbor for transfers of financial assets to an issuing entity in connection with a securitization. These conditions make a clear distinction between the conditions imposed on residential mortgage-backed securities (RMBS) from those imposed on securitizations for other asset classes. In the context of a conservatorship or liquidation, the conditions applicable to all securitizations will improve overall transparency and clarity through disclosure and documentation requirements, along with ensuring effective incentives for prudent lending by requiring that the payment of principal and interest be based primarily on the performance of the financial assets and by requiring retention of a share of the credit risk in the securitized loans.

The conditions applicable to RMBS are more detailed and include additional capital structure, disclosure, documentation and compensation requirements, as well as a requirement for the establishment of a reserve fund. These requirements are intended to address the factors that caused significant losses in RMBS securitization structures as demonstrated in the 2007-2008 financial crisis. Confidence can be restored in RMBS markets only through greater transparency and other structures that support sustainable mortgage origination practices and require increased disclosures. These standards respond to investor demands for greater transparency and alignment of the interests of parties to the securitization. In addition, they are generally consistent with industry efforts, while taking into account legislative and regulatory initiatives.

The benefits of this final rule should be available only to securitizations that are readily understood by the market, increase liquidity of the financial assets, and reduce consumer costs. Consistent with the Security and Exchange Commission's (“SEC's”) Regulation AB, the documents governing the securitization must provide financial asset level disclosure as appropriate to the securitized financial assets for any re-securitizations (securitizations supported by other securitization obligations). These disclosures must include full disclosure of the obligations, including the structure and the assets supporting each of the underlying securitization obligations, and not just the obligations that are transferred in the re-securitization. This requirement applies to all re-securitizations, including static re-securitizations as well as managed collateralized debt obligations.

All securitizations. Consistent with the Proposal, this final rule provides that securitizations that are unfunded or synthetic transactions are not eligible for expedited consent. To support sound lending, the documents governing all securitizations must require that payments of principal and interest on the obligations be primarily dependent on the performance of the financial assets supporting the securitization and that such payments not be contingent on market or credit events that are independent of the assets supporting the securitization, except for interest rate or currency mismatches between the financial assets and the obligations to investors.

RMBS only. In formulating the rule, the Board sought to permit innovation and accommodate financing needs, and thus attempted to strike a balance between permitting multi-tranche structures for RMBS transactions and promoting readily understandable securitization structures and limiting overleveraging of residential mortgage assets.

For RMBS only, the Proposal limited the capital structure of the securitization to six or fewer tranches to discourage complex and opaque structures. The most senior tranche could include time-based sequential pay or planned amortization and companion sub-tranches, which are not viewed as separate tranches for the purpose of the six tranche requirement. This condition would not have prevented an issuer from creating the economic equivalent of multiple tranches by re-securitizing one or more tranches, so long as they meet the conditions set forth in the rule, including adequate disclosure in connection with the re-securitization. In addition, RMBS could not include leveraged tranches that introduced market risks (such as leveraged super senior tranches). Although the financial assets transferred into an RMBS would have been permitted to benefit from asset level credit support, such as guarantees (including guarantees provided by governmental agencies, private companies, or government-sponsored enterprises), co-signers, or insurance, the RMBS could not benefit from external credit support at the issuing entity or pool level. The Proposal intended that guarantees permitted at the asset level include guarantees of payment or collection, but not credit default swaps or similar items. The temporary payment of principal and interest, however, could be supported by liquidity facilities. These conditions were designed to limit both the complexity and the leverage of an RMBS and therefore the systemic risks introduced by them in the market. In addition, the Proposal provided that the securitization obligations could be enhanced by credit support or guarantees provided by Specified GSEs. However, as noted in the discussion on the definitions in the Proposal, a securitization that was wholly guaranteed by a Specified GSE would not have been subject to the rule and thus would not have been eligible for the safe harbor.

Two commenters expressed concern that codifying a limit of six credit tranches in a securitization may have the unintended consequence of limiting a FCU's ability to access the market or issuing a securitization at the best possible price. The commenter recommended that, because there is no empirical evidence that structures with more than six tranches create materially more risk than those with less than six, the Board should eliminate this requirement from the safe harbor. In addition, one commenter urged elimination of the prohibition on external credit enhancements for RMBS.

The Board disagrees with the commenter's recommendations. As previously stated, the rule was intentionally modeled on § 360.6 of the FDIC's regulations to encourage a market for securitization participants and help assure investors. The limiting language in § 709.10(b)(1)(ii)(A) and (B) of the Proposal is nearly identical 10 to the language in § 360.6(b)(1)(ii)(A) and (B) of FDIC's regulation. Retaining the six credit tranche limitation and the prohibition on external credit enhancements will not disadvantage FICUs relative to banks, and will help limit the complexity of assigning a value to securities in the event of liquidation. Accordingly, the Board has decided to retain the proposed language in §§ 709.10(b)(1)(ii)(A) and (B) in the final rule without change.

For all securitizations, disclosure serves as an effective tool for increasing the demand for high quality financial assets and thereby establishing incentives for robust financial asset underwriting and origination practices. Consistent with the Proposal, this final rule increases transparency in securitizations by enabling investors to decide whether to invest in a securitization based on full information with respect to the quality of the asset pool and thereby provide additional liquidity only for sustainable origination practices.

The data must enable investors to analyze the credit quality for the specific asset classes that are being securitized. The documents governing securitizations must, at a minimum, require disclosure for all issuances to include the types of information required under current Regulation AB or any successor disclosure requirements with the level of specificity that applies to public issuances, even if the obligations are issued in a private placement or are not otherwise required to be registered.

The documents governing securitizations that qualify under the rule must require disclosure of the structure of the securitization and the credit and payment performance of the obligations, including the relevant capital or tranche structure and any liquidity facilities and credit enhancements. The disclosure must be required to include the priority of payments and any specific subordination features, as well as any waterfall triggers or priority of payment reversal features. The disclosure at issuance must include the representations and warranties made with respect to the financial assets and the remedies for breach of such representations and warranties, including any relevant timeline for cure or repurchase of financial assets, and policies governing delinquencies, servicer advances, loss mitigation and write offs of financial assets. The documents must also require that periodic reports provided to investors include the credit performance of the obligations and financial assets, including periodic and cumulative financial asset performance data, modification data, substitution and removal of financial assets, servicer advances, losses that were allocated to each tranche and remaining balance of financial assets supporting each tranche as well as the percentage coverage for each tranche in relation to the securitization as a whole. Where appropriate for the type of financial assets included in the pool, reports must also include asset level information that may be relevant to investors (e.g., changes in occupancy, loan delinquencies, defaults, etc.). NCUA recognizes that for certain asset classes, such as credit card receivables, the disclosure of asset level information is less informative and, thus, will not be required.

The securitization documents must also require disclosure to investors of the nature and amount of compensation paid to any mortgage or other broker, the servicer(s), rating agency or third-party advisor, and the originator or sponsor, and the extent to which any risk of loss on the underlying financial assets is retained by any of them for such securitization. The documents must require disclosure of changes to this information while obligations are outstanding. This disclosure should enable investors to assess potential conflicts of interests and how the compensation structure affects the quality of the assets securitized or the securitization as a whole.

For RMBS, consistent with the Proposal, this final rule requires the sponsor to disclose loan level data as to the financial assets securing the mortgage loans, such as loan type, loan structure, maturity, interest rate and location of property. Sponsors of securitizations of residential mortgages will be required to affirm compliance in all material respects with applicable statutory and regulatory standards for origination of mortgage loans. None of the disclosure conditions should be construed as requiring the disclosure of personally identifiable information of obligors or information that would violate applicable privacy laws. The rule requires sponsors to disclose a third-party due diligence report on compliance with standards and representations and warranties made about the financial assets.

Finally, this final rule, consistent with the Proposal, specifies that the securitization documents require disclosure by servicers of any ownership interest of the servicer or any affiliate of the servicer in other whole loans secured by the same real property that secures a loan included in the financial asset pool. This provision does not require disclosure of interests held by servicers or their affiliates in the securitization securities. This provision is intended to give investors information to evaluate potential servicer conflicts of interest that might impede the servicer's actions to maximize value for the benefit of investors.

For all securitizations, this final rule, consistent with the Proposal, requires operative agreements to use available standardized documentation for each available asset class. It is not possible to define in advance when use of standardized documentation will be appropriate, but when there is general market use of a form of documentation for a particular asset class, or where a trade group has formulated standardized documentation generally accepted by the industry, such documentation must be used.

Consistent with the Proposal, the rule also requires that securitization documents define the contractual rights and responsibilities of the parties, including but not limited to representations and warranties, ongoing disclosure requirements and any measures to avoid conflicts of interest. The documents are required to provide authority for the parties to fulfill their rights and responsibilities under the securitization contracts.

Consistent with the Proposal, additional conditions apply to RMBS to address a significant issue that has been demonstrated in the mortgage crisis by requiring that servicers have authority to mitigate losses on mortgage loans consistent with maximizing net present value of the mortgages. Therefore, for RMBS, contractual provisions in the servicing agreement must provide servicers with authority to modify loans to address reasonably foreseeable defaults and to take other action to maximize the value and minimize losses on the securitized financial assets. The documents must require servicers to apply industry best practices related to asset management and servicing.

The RMBS documents may not give control of servicing discretion to a particular class of investors. The documents must require that the servicer act for the benefit of all investors rather than for the benefit of any particular class of investors. Consistent with the forgoing, the documents must require the servicer to commence action to mitigate losses no later than ninety days after an asset first becomes delinquent unless all delinquencies on such an asset have been cured. A servicer must be required to maintain sufficient records of its actions to permit appropriate review of its actions.

In January 2013, the Consumer Financial Protection Bureau (“CFPB”) adopted mortgage loan servicing requirements that became effective on January 10, 2014. One of the requirements, set forth in Subpart C to Regulation X, at 12 CFR 1024.41, generally prohibits a servicer from commencing a foreclosure unless the borrower's mortgage loan obligation is more than 120 days delinquent. This section of Regulation X also provides additional rules that, among other things, require a lender to further delay foreclosure if the borrower submits a loss mitigation application before the lender has commenced the foreclosure process, and requires a lender to delay a foreclosure for which it has commenced the foreclosure process if a borrower has submitted a complete loss mitigation application more than 37 days before a foreclosure sale.11

In response to this change, the Board is now making minor amendments in this final rule to clarify that the 90-day loss mitigation requirement does not conflict with the foreclosure commencement delays mandated by the CFPB under Regulation X. In particular, § 709.10(b)(3)(ii)(A) retains the original language proposed, but now includes additional language stating that the loss mitigation action requirement thereunder “will not be deemed to require that the documents include any provision concerning loss mitigation that requires any action that may conflict with the requirements of Regulation X. . . .”

In addition, NCUA believes that a prolonged period of servicer advances in a market downturn misaligns servicer incentives with those of the RMBS investors. Servicing advances also serve to aggravate liquidity concerns, exposing the market to greater systemic risk. Occasional advances for late payments, however, are beneficial to ensure that investors are paid in a timely manner. To that end, consistent with the Proposal, the servicing agreement for RMBS must not require the primary servicer to advance delinquent payments of principal and interest by borrowers for more than three payment periods unless financing or reimbursement facilities to fund or reimburse the primary servicers are available. However, such facilities shall not be dependent for repayment on foreclosure proceeds.

Consistent with the Proposal, the compensation requirements of this final rule apply only to RMBS. Due to the demonstrated issues in the compensation incentives in RMBS, the rule seeks to realign compensation to parties involved in the rating and servicing of residential mortgage securitizations.

The securitization documents are required to provide that any fees payable credit rating agencies or similar third-party evaluation companies must be payable in part over the five-year period after the initial issuance of the obligations based on the performance of surveillance services and the performance of the financial assets, with no more than 60% of the total estimated compensation due at closing. Thus, payments to rating agencies must be based on the actual performance of the financial assets, not their ratings.

A second area of concern is aligning incentives for proper servicing of the mortgage loans. Therefore, the documents must require that compensation to servicers must include incentives for servicing, including payment for loan restructuring or other loss mitigation activities, which maximizes the net present value of the financial assets in the RMBS.

As discussed above and consistent with the Proposal, this final rule imposes conditions addressing origination and retention requirements for all securitizations to provide further incentives for quality origination practices. Because the regulations required under Section 15G of the Securities Exchange Act, 15 U.S.C. 78a et seq., added by Section 941(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act have now gone into effect,12 the Board has amended this final rule to eliminate the references to the retention requirements for securities issued prior to the effective dates of that rulemaking. Accordingly, the final rule now provides that for any securitization, the documents creating the securitization shall require retention of an economic interest in the credit risk of the financial assets in accordance with the regulations required under Section 15G of the Securities Exchange Act, 15 U.S.C. 78a et seq., added by Section 941(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, including restrictions on sale, pledging and hedging set forth therein.

The Board continues to believe that requiring the sponsor to retain an economic interest in the credit risk relating to each credit tranche or in a representative sample of financial assets will help ensure quality origination practices. A risk retention requirement that did not cover all types of exposure would not be sufficient to create an incentive for quality underwriting at all levels of the securitization. The recent economic crisis made clear that, if quality underwriting is to be assured, it will require true risk retention by sponsors, and that the existence of representations and warranties or regulatory standards for underwriting will not alone be sufficient.

Consistent with the Proposal, § 709.10(c) of this final rule includes general conditions for securitizations and the transfer of financial assets. These conditions also include requirements that are consistent with good financial institution practices.

The transaction should be an arms-length, bona fide securitization transaction and the documents must limit sales to credit union service organizations in which the sponsor credit union has an interest (other than a wholly-owned credit union service organization consolidated for accounting and capital purposes with the credit union), and insiders of the sponsor. The securitization agreements must be in writing, approved by the board of directors of the credit union or its loan committee (as reflected in the minutes of a meeting of the board of directors or committee), and have been, continuously, from the time of execution, in the official record of the credit union. The securitization must have been entered into in the ordinary course of business, not in contemplation of insolvency and with no intent to hinder, delay or defraud the credit union or its creditors.

The rule applies only to transfers made for adequate consideration. The transfer and/or security interest need to be properly perfected under the Uniform Commercial Code (UCC) or applicable state law. NCUA anticipates that it will be difficult to determine whether a transfer complying with the rule is a sale or a security interest, and therefore expects that a security interest will be properly perfected under the UCC, either directly or as a backup.

The governing documents must require that the sponsor separately identify in its financial asset data bases the financial assets transferred into a securitization and maintain an electronic or paper copy of the closing documents in a readily accessible form, and that the sponsor maintain a current list of all of its outstanding securitizations and issuing entities, and the most recent SEC Form 10-K or other periodic financial report for each securitization and issuing entity. The documents must also provide that if acting as servicer, custodian or paying agent, the sponsor is not permitted to commingle amounts received with respect to the financial assets with its own assets except for the time necessary to clear payments received, and in event for more than two business days. The documents must require the sponsor to make these records available to NCUA promptly upon request. This requirement will facilitate the timely fulfillment of the conservator's or liquidating agent's responsibilities upon appointment and will expedite the conservator's or liquidating agent's analysis of securitization assets. This will also facilitate the conservator's or liquidating agent's analysis of the credit union's assets and determination of which assets have been securitized and are therefore potentially eligible for expedited access by investors.

In addition, the rule requires that the transfer of financial assets and the duties of the sponsor as transferor be evidenced by an agreement separate from the agreement governing the sponsor's duties, if any, as servicer, custodian, paying agent, credit support provider or in any capacity other than transferor.

Consistent with the Proposal, § 709.10(d)(1) of the rule continues the safe harbor provision that was provided by the 2000 Rule with respect to participations so long as the participation satisfies the conditions for sale accounting treatment set forth by generally accepted accounting principles. In addition, last-in first-out participations are specifically included in the safe harbor, provided that they satisfy requirements for sale accounting treatment other than the pari-passu, proportionate interest requirement that is not satisfied solely as a result of the last-in first-out structure.

Consistent with the Proposal, § 709.10(d)(2) of the Rule addresses transfers of financial assets made in connection with a securitization for which transfers of financial assets are made after the effective date of this rule or securitizations from a master trust or revolving trust established after the date of adoption of this rule, that (in each case) satisfy the conditions for sale accounting treatment under GAAP in effect for reporting periods after November 15, 2009. For such securitizations, NCUA as conservator or liquidating agent will not, in the exercise of its statutory authority to disaffirm or repudiate contracts, reclaim, recover, or recharacterize as property of the institution or the liquidation estate any such transferred financial assets, provided that such securitizations comply with the conditions set forth in paragraphs (b) and (c) of the rule.

Consistent with the Proposal, § 709.10(d)(3) of the Rule addresses transfers of financial assets in connection with a securitization for which transfers of financial assets were made after the effective date of this rule or securitizations from a master trust or revolving trust established after the date of adoption of the rule, that (in each case) satisfy the conditions set forth in paragraphs (b) and (c), but where the transfer does not satisfy the conditions for sale accounting treatment under GAAP in effect for reporting periods after November 15, 2009.

Consistent with the Proposal, § 709.10(d)(3)(i) provides that if the conservator or liquidating agent is in monetary default due to its failure to pay or apply collections from the financial assets received by it in accordance with the securitization documents, and remains in monetary default for ten business days after actual delivery of a written notice to the conservator or liquidating agent requesting exercise of contractual rights because of such default, the conservator or liquidating agent consents to the exercise of such contractual rights, including any rights to obtain possession of the financial assets or the exercise of self-help remedies as a secured creditor, provided that no involvement of the conservator or liquidating agent is required, other than consents, waivers or the execution of transfer documents reasonably requested in the ordinary course of business in order facilitate the exercise of such contractual rights. This paragraph also provides that the consent to the exercise of such contractual rights shall serve as full satisfaction for all amounts due.

Consistent with the Proposal, § 709.10(d)(3)(ii) provides that, if the conservator or liquidating agent gives a written notice of repudiation of the securitization agreement pursuant to which assets were transferred and does not pay the damages due by reason of such repudiation within ten business days following the effective date of the notice, the conservator or liquidating agent consents to the exercise of any contractual rights, including any rights to obtain possession of the financial assets or the exercise of self-help remedies as a secured creditor, provided that no involvement of the conservator or liquidating agent is required other than consents, waivers or the execution of transfer documents reasonably requested in the ordinary course of business in order facilitate the exercise of such contractual rights. Paragraph 3(d)(ii) also provides that the damages due for these purposes shall be an amount equal to the par value of the obligations outstanding on the date of liquidation less any payments of principal received by the investors through the date of repudiation, plus unpaid, accrued interest through the date of repudiation to the extent actually received through payments on the financial assets received through the date of repudiation, and that upon receipt of such payment all liens on the financial assets created pursuant to the securitization documents shall be released.

In computing amounts payable as repudiation damages, consistent with the FCU Act, the conservator or liquidating agent will not give effect to any provisions of the securitization documents increasing the amount payable based on the appointment of as the conservator or liquidating agent.13 The rule clarifies that repudiation damages will be equal to the par value of the obligations as of the date of liquidation, less payments of principal received by the investors to the date of repudiation, plus unpaid, accrued interest through the date of repudiation to the extent actually received through payments on the financial assets received through the date of repudiation. The rule also provides that the conservator or liquidating agent consents to the exercise of remedies by investors, including self-help remedies as secured creditors, in the event that NCUA repudiates a securitization transfer agreement and does not pay damages in such amount within ten business days following the effective date of notice of repudiation. Thus, if NCUA repudiates and the investors are not paid the par value of the securitization obligations, plus unpaid, accrued interest through the date of repudiation to the extent actually received through payments on the financial assets received through the date of repudiation, they will be permitted to obtain the asset pool. Accordingly, exercise by the conservator or the liquidating agent of its repudiation rights will not expose investors to market value risks relating to the asset pool.

The Debt Collection Improvement Act of 1996 1 (DCIA) amended the Federal Civil Penalties Inflation Adjustment Act of 1990 2 (FCPIA Act) to require every federal agency to enact regulations that adjust each CMP provided by law under its jurisdiction by the rate of inflation at least once every four years. In November 2015, Congress further amended the CMP inflation requirements in the Bipartisan Budget Act of 2015,3 which contains the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 amendments).4 This legislation provides for an initial “catch-up” adjustment of CMPs in 2016, followed by annual inflation adjustments starting in 2017.

On January 23, 2017, in compliance with the 2015 amendments, the Board published the annual inflation adjustments for 2017 in an interim final rule with a request for comments in the Federal Register.5 In calculating the adjustments, the Board reviewed and applied government-wide guidance issued by the Office of Management and Budget (OMB).6 In accordance with the procedures and calculations prescribed by the 2015 amendments and OMB's guidance, the Board adjusted the maximum level of each of the CMPs that NCUA has authority to assess. NCUA is not, however, required to assess at the new maximum levels and retains discretion to assess at lower levels, as it has done historically.7

The interim final rule became effective on January 23, 2017. The Board received no comments on the rule. Accordingly, this final rule confirms the adjustments made in the interim final rule without change.

Section III of the Supplementary Information in the January 2017 interim final rule sets forth the Board's analyses under the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act of 1995, the Small Business Regulatory Enforcement Fairness Act (SBREFA), Executive Order 13132, and the Treasury and General Government Appropriations Act.8 Because the final rule confirms the interim final rule and does not alter the substance of the analyses and determinations accompanying the interim final rule, the Board continues to rely on those analyses and determinations for purposes of this rulemaking. The Board notes that OMB determined that the interim final rule is not a “major rule” within the meaning of SBREFA.

On December 22, 2016, NCUA published an interim final rule 1 to revise its FOIA regulation at part 792, subpart A of the agency's regulations 2 in accordance with new requirements under the FOIA Improvement Act of 2016.3 The interim final rule became effective on December 22, 2016. The NCUA accepted public comments, however, until January 23, 2017.

The interim final rule revised procedures for the disclosure of records, including procedures for engaging in dispute resolution through the FOIA Public Liaison and the OGIS. The revisions were necessary to comply with amendments to the FOIA Improvement Act of 2016. NCUA is issuing this rulemaking to finalize the interim rule with minor wording changes for consistency and clarification.

NCUA received two comments on the interim final rule. One was from a trade organization and one was from an institute. One comment was fully supportive of the Act, noting that the interim rule met all the technical statutory requirements. The comment, however, also urged the NCUA to exceed the requirements and continue to adopt a presumption of openness. NCUA's longstanding FOIA practices include a presumption of openness which will continue under the final rule.

In addition, the commenter believes the NCUA should post every FOIA response to its Web site. The FOIA and the interim final rule, in section 792.03(c), already provide that NCUA must post on its Web site records released in response to a FOIA request that are either: Likely to be the subject of subsequent requests because of the nature of their subject matter; or records that have been requested three or more times. NCUA generally exceeds these requirements, posting on its FOIA page records requested more than once and considering each record requested for possible routine Web site posting. As every record requested, however, is not of interest to the general public, NCUA is adopting this section in the final rule without change.

The other commenter requested that NCUA revise its definition of “representative of the news media” in § 792.20 to be consistent with the FOIA at 5 U.S.C. 552(a)(4)(A)(ii) and also to consider additional technical matters. As a change to this definition and the other issue raised were not included in the interim final rule, NCUA will address this in an upcoming technical amendment rule. The final rule does contain minor changes to wording for consistency and clarification.

In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995,4 the Board has reviewed the final rule and determined it does not contain or modify a collection of information subject to the PRA. The PRA applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or increases an existing burden. For purposes of the PRA, a paperwork burden may take the form of a reporting or recordkeeping requirement, both referred to as information collections. Information collected as part of an affidavit, oath, affirmation, certification, receipt, changes of address, consent, or acknowledgment, however, is not considered an information collection for purposes of the PRA.

This category is limited to those disclosures that require persons to provide or display only facts necessary to identify themselves. For example, they entail no burden other than that necessary to identify the respondent, the date, the respondent's address, and the nature of the instrument. “Nature of the instrument” refers to a respondent's request for materials, such as publications or other information from an agency. To facilitate such requests for information from an agency, an agency may ask requesters to describe the material or information sought in detail sufficient to describe the individual desires.

The final rule implements the FOIA Improvement Act of 2016 by amending the agency's FOIA regulations. Because the only paperwork burden in this final rule relates to activities that are not considered to be information collections, NCUA has determined that this rule is exempt from the requirements of the PRA.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a rule may have on a substantial number of small credit unions (those under $100 million in assets). This final rule does not impose any requirements on federally insured credit unions. Therefore, it will not have a significant economic impact on a substantial number of small credit unions and a regulatory flexibility analysis is not required. Because this final rule would affect few, if any, small entities, the Board certifies that the final rule will not have a significant economic impact on small entities.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The final rule would not have substantial direct effects on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.

NCUA has determined that this final rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act of 1999.5

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where the Board issues a final rule as defined by Section 551 of the APA. The Board submitted the rule to the Office of Management and Budget. It determined the rule is not a “major rule” within the meaning of the relevant sections of SBREFA.

For the reasons stated above, the National Credit Union Administration adopts the interim rule published December 22, 2016, at 81 FR 93792, as final with the following changes:

On August 4, 2016, the Bureau issued the 2016 Mortgage Servicing Final Rule clarifying, revising, or amending certain of the Bureau's mortgage servicing rules.1 Each of the changes will take effect on either Thursday, October 19, 2017, or Thursday, April 19, 2018.2 The Bureau has heard concerns that these midweek effective dates for the 2016 Mortgage Servicing Final Rule could create operational challenges for servicers. The Bureau understands that, for many servicers, the Thursday effective dates could afford less than a full day—from the close of business overnight on each of the preceding Wednesdays—to update and test systems in order to be compliant with the 2016 amendments. If servicers do not have sufficient time to complete these tasks, their systems may be more likely to produce errors, which could expose servicers and consumers to risk. Industry participants have notified the Bureau that implementing the 2016 Mortgage Servicing Final Rule during the weekend, with early compliance beginning on the Monday before each of the respective Thursday effective dates, would address these concerns.

The Bureau understands industry's concerns and believes that, in the context of the 2016 Mortgage Servicing Final Rule, servicers and consumers are likely to benefit if servicers have the weekend immediately before each of the effective dates to update and test their systems. The Bureau does not, therefore, intend to take supervisory or enforcement action for violations of existing Regulation X or Regulation Z resulting from a servicer's compliance with the 2016 Mortgage Servicing Final Rule occurring up to three days before the applicable effective dates. For these purposes, “up to three days before the applicable effective dates” means, for the amendments that will take effect on Thursday, October 19, 2017, the period of Monday, October 16, through Wednesday, October 18, 2017; and, for the amendments that will take effect on Thursday, April 19, 2018, the period of Monday, April 16, through Wednesday, April 18, 2018.

This Policy Guidance is a non-binding general statement of policy articulating considerations relevant to the Bureau's exercise of its supervisory and enforcement authority. It is therefore exempt from notice and comment rulemaking requirements under the Administrative Procedure Act pursuant to 5 U.S.C. 553(b). Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a). The Bureau has determined that this Policy Guidance does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring OMB approval under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641), provides, among other things, that a person (an individual, corporation, association, or partnership) must hold a valid customs broker's license and permit in order to transact customs business on behalf of others, sets forth standards for the issuance of a broker's license and permit, and provides for disciplinary action against brokers that have engaged in specific infractions. This section also provides that an examination may be conducted to assess an applicant's qualifications for a license.

The regulations issued under the authority of section 641 are set forth in title 19 of the Code of Federal Regulations, part 111 (19 CFR part 111). Part 111 sets forth the regulations regarding, among other things, the licensing of, and granting of permits to, persons desiring to transact customs business as customs brokers. These regulations also include the qualifications required of applicants and the procedures for applying for licenses and permits, including examination procedures and requirements.

Currently, a customs broker's examination consists of a paper test booklet and a scannable answer sheet which is administered by the Office of Personnel Management (OPM). CBP supplements OPM's resources by providing CBP officials to proctor the examination and space to conduct the examination. There is a $200 fee to take the examination. This fee, which has not changed since 2000, currently does not cover the administrative costs of the paper-based examination as the costs of administering the examination have increased. At the same time that CBP is looking to update its fee to reflect the costs of administering the exam, OPM has informed CBP that it will no longer administer the paper-based examination and it is shifting all the examinations it administers to an electronic format.

On September 14, 2016, CBP published a document in the Federal Register (81 FR 63149) proposing to amend title 19 of the Code of Federal Regulations (“19 CFR”) to modernize the customs broker's examination provisions. Specifically, CBP proposed amending the customs broker's examination provisions, which are contained in 19 CFR part 111, to permit automation of the examination. CBP proposed removing references to the “written” examination to accommodate the transition from the paper and pencil format to an electronic format; and proposed removing the requirement that CBP grade the examinations to permit officials at the Office of Personnel Management (OPM) or OPM contractors to grade the examinations. CBP proposed removing the reference to “Headquarters” to allow CBP offices nationwide to assist in preparing the examination. CBP also proposed moving the examination dates to the fourth Monday in April and October to allow more time between the start of the federal fiscal year and the October examination date. To cover the costs of administering the examination, plus the cost of automating the examination, CBP proposed to increase the fee. CBP proposed removing the special examination provision because it was unnecessary. Finally, to better reflect CBP's organizational structure, CBP proposed updating the information on whom to contact when an applicant either would miss an examination, or would file an appeal of examination results. CBP proposed these changes to benefit both applicants and CBP. For applicants, automation would standardize the testing environment and equipment for all examinations, and provide earlier notification of test scores. For CBP, automation would provide for a more efficient use of CBP staff and administrative resources. The notice of proposed rulemaking requested public comments. The public comment period closed on November 14, 2016.

Eight comments were received in response to the notice of proposed rulemaking.

Comment: Six commenters sought clarification about the transition from a paper and pencil format to computer automated examinations as described in the proposed rule. Three of them requested an additional explanation of how the removal of “written” from the description of the examination in the proposed regulations determined the examination format. One commenter suggested replacing “written” with another term, such as “multiple choice,” to describe the exact examination format in the regulations.

CBP Response: CBP disagrees that the regulations need to define a specific form of examination. CBP is removing the term “written” to describe the examination from the regulation to provide flexibility in the transition from the paper and pen format to delivering the examination via computer. For that reason, CBP is not limiting the examination format by including specific parameters, such as “multiple choice.” CBP understands the applicants' desire for transparency on the type of question (e.g. multiple choice, true/false, essay) that will appear on the examination; therefore, CBP will provide guidance to the public on CBP.gov prior to the administration of the electronic examination.

Comment: Several commenters raised specific questions about the process of taking the new electronic examination. Commenters asked whether applicants could choose a testing site; whether applicants could bring electronic reference materials to the site, and, if not, whether they would have sufficient space to use their paper reference materials and receive scrap paper for solving problems; whether they could change their answers during the allotted time; whether they could skip questions and return to them later; and whether the computer program would track skipped questions for the examinee. Commenters also asked whether CBP would have a contingency plan for technical difficulties, whether CBP was going to test the automated examination program before requiring it nationwide, whether it would provide a practice test, when it would provide the answer key, and when it would provide the results to the applicants.

CBP Response: CBP understands the concerns about a new examination format; thus CBP will provide guidance to the public on CBP.gov prior to the administration of the electronic examination.

The selection of an examination location depends on the information in the application. Applicants select their business port when they register for the customs broker's examination; CBP assigns the applicants to the exam locations closest to their selected port. With the examination location notification, CBP will provide the applicant with contingency plans for system failures, power outages, and other site-related breakdowns or emergencies. The examination sites themselves will offer ample room for hard copies of reference material, and the guidance on CBP.gov will describe the permitted reference materials. Applicants will receive scrap paper at examination sites. The examination sites, however, will provide access to only one computer monitor per examinee: Applicants will not have access to a second monitor or be permitted to access reference materials on-line.

The electronic examination itself will allow applicants to skip answers, to return to skipped or completed answers, and to change their answers during the examination period. After the broker's examination development team completes its testing of the electronic examination, CBP will provide a link to a sample practice examination so that applicants can familiarize themselves with the format and how to navigate within the examination. The guidance CBP will provide on CBP.gov will include information on how and when CBP anticipates it will provide a copy of the examination and its answer key. CBP will post the examination online at CBP.gov after the completion of all the examinations at all examination locations. CBP will post the examination answer key on CBP.gov after it vets the examination results.

Comment: Several commenters questioned the examination fee increase to $390, or requested more information about the basis for the increase in the fee. They compared the new fee to other licensing fees, and the increase in the examination fee to increases resulting from inflation or changes in the cost of living since 2000; and stated that the fee would be expensive for individuals beginning their trade careers. Com­ment­ers questioned how automation could be so expensive when it would save administrative resources.

CBP Response: CBP appreciates that the fee may be expensive for some individuals but CBP disagrees that its examination fee increase is too high as it is set to cover CBP's costs to provide the exam under the new exam process. The fee is not being changed merely to adjust the existing fee for inflation, or to bring it in line with licensing fees for exams in unrelated fields, but to reflect CBP's costs of providing the exam. The Office of Personnel Management has informed CBP that it will soon no longer administer the current paper based examination. Instead, the exam will now be electronic and provided at private testing centers. While the automation itself saves money by reducing the time spent preparing and grading the exam, the need to rent testing centers with professional proctors will increase the overall exam costs. The increase in costs over time due to inflation, coupled with the need to change to an all-electronic exam administered at private testing centers, makes it necessary to increase the customs broker exam fee from $200 to $390 for CBP to recover all of its costs to administer the customs broker exam.

Comment: Commenters said that an individual's brokerage does not always reimburse for the cost of the exam and that $390 would be a large expense for individuals.

CBP Response: CBP acknowledges that not all brokerages reimburse their employees for the cost of the exam and some only reimburse their employees when they pass the exam. This is consistent with the analysis that indicates only that there is some portion of brokerages who do reimburse their employees and that there are brokers who are sole proprietors. This discussion takes place in the Regulatory Flexibility Act section of this document, which analyzes the impact on small entities. Small entities, as defined by the Regulatory Flexibility Act, includes small businesses but does not include individuals (other than sole proprietors). Therefore, the cost to individuals was not analyzed in this section. For an analysis of the costs of this rule to all parties, see the Executive Orders 13563, 12866, and 13771 and Regulatory Flexibility Act sections in this notice.

Comment: Several commenters requested additional information on what costs were covered by the fee.

CBP Response: As requested, CBP has revised the administrative costs section in the fee study to include a more detailed description of what is included in the costs for informational purposes. Exam administration costs are the costs associated with administering the customs broker license exam. CBP contracts with the U.S. Office of Personnel Management (OPM) to administer the exam. The contracted services include, but are not limited to: The development of the exam onto an electronic platform, the renting of testing locations, the providing of equipment and proctors, the grading of the exam, the mailing of individual score sheets to each examinee, and the providing to CBP of an array of exam metrics including distractor analysis and frequency distribution. The fee study documenting the proposed fee changes, entitled “Customs Broker License Examination Fee Study,” has been included in the docket of this rulemaking (Docket No. USCBP-2016-0059). As stated in the fee study, there were two inputs to determining the new examination fee—the costs to both CBP and OPM and the number of examinees. The cost of administering the examination is increasing to $390 because CBP now has to hire professional proctors and rent out formal testing centers instead of using port staff to proctor the exam and port facilities to administer the exam.

Comment: Several commenters objected to eliminating the special examination provision, mentioned CBP had applied the provision in 2001, and requested that it remain, in case of extenuating circumstances or unforeseen emergencies.

CBP Response: CBP agrees and will retain the special examination provision at 19 CFR 111.13(c) with changes to reflect that the special examination will also be modernized to allow for electronic testing. In addition, CBP changed the provision to require that special examination requests be submitted to the Executive Assistant Commissioner, Office of Trade.

Comment: Although no one objected to moving the customs broker's examination dates later in April and October, several commenters suggested that neither Monday nor Friday were ideal dates for business reasons.

CBP Response: CBP agrees that moving the exam administration date to the fourth Wednesday in October and in April would be beneficial. Accordingly, CBP changed the administration date from the fourth Monday to the fourth Wednesday in 19 CFR 111.13(b).

Accordingly, after review of the comments and further consideration, CBP has decided to adopt as final, with the changes discussed above, and grammatical corrections, the proposed rule published in the Federal Register (81 FR 63149) on September 14, 2016. Specifically, the final rule will change the examination dates to the fourth Wednesday in April and October (not the fourth Monday); and, will retain the special examination provision with changes in § 111.13(c) (19 CFR 111.13(c)).

Executive Orders 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). Executive Order 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, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017).

Customs brokers are private individuals and/or business entities (partnerships, associations or corporations) that are regulated and empowered by CBP to assist importers and exporters in meeting federal requirements governing imports and exports. Customs brokers have an enormous responsibility to their clients and to CBP that requires them to properly prepare importation and exportation documentation, file these documents timely and accurately, classify and value goods properly, pay duties and fees, and safeguard their clients' information.

CBP currently licenses brokers who meet a certain set criteria. One criterion is that each prospective broker must first pass a broker license exam. CBP's current paper-based examination method will soon no longer be available and so CBP is shifting to an all-electronic exam. The all-electronic exam has benefits to both CBP and the trade, such as a faster processing time, which lets examinees know their results more quickly and efficiently, and a significant reduction in administrative duties for CBP employees. However, administering this new electronic exam is also more expensive. Additionally, the current $200 fee does not cover the costs of the current paper exam. CBP is therefore increasing the examination fee from $200 to $390 in order to fully cover all of CBP's costs of administering the broker examination.

CBP is also changing the date of the semi-annual customs broker exam from the first Monday in October and April to the fourth Wednesday in October and April for easier administration.

It is CBP's responsibility to ensure that only qualified individuals and business entities can perform customs business on another party's behalf. The first step in meeting the eligibility requirements for a customs broker license requires an individual to pass the customs broker license examination. Currently paper-based, the customs broker examination is an open-book examination consisting of 80 multiple-choice questions.

An individual currently must meet the following criteria in order to be eligible to take the customs broker examination:

• Be a U.S. citizen at least 18 years of age; 1

• Not be an employee of the U.S. federal government; and

• Pay a $200 examination fee.

The customs broker examination is offered semi-annually, in April and October, and an examinee has four and a half (4.5) hours to complete it. Based on prior year exams from 2004 to 2013, CBP estimates that there will be approximately 2,600 examinees per year, or 1,300 examinees per session. Currently the broker exam is given at 50 testing locations around the country. CBP anticipates that changing the exam format from paper-based to electronic would result in no change in the number of testing locations in the country; the only change would be the type of testing location. The exam is currently administered at hotels and ports throughout the country. In the future, the exam will instead be held at privately operated formal testing locations.

Beginning in October 2017, the current paper testing option will no longer be available and the broker examination will be fully electronic. Despite the higher costs of an electronic exam, it has many favorable features which would benefit both CBP and the examinees, including shorter wait times for examinees to get their test results and a reduction in the time CBP staff spends on administrative matters related to the exam, such as arranging facility space for and proctoring the exam, fielding questions from examinees and mailing test result notices.

As discussed above, CBP currently charges a $200 fee for the customs broker license examination. This fee is used to offset the costs associated with providing the services necessary to operate the customs broker license examination. Based on a recently completed fee study entitled, “Customs Broker License Examination Fee Study,” CBP has determined that these fees are no longer sufficient to cover its costs.2 Currently, examinees go to either a port or to a rented event space in a hotel to take the paper exam with a 35-page test booklet and a scannable answer sheet, which must subsequently be collected and graded. The new all-electronic version of the exam will be administered entirely on a computer where the examinees answer the questions directly on the screen and the exam is graded automatically. As the electronic exam uses all private facilities with professional proctors, this automated method will be more expensive than the paper exam. Furthermore, the current fee is not enough to cover even the current costs of administering the exam. Exam administration costs include the development of the exam in an electronic platform, the renting of testing locations, the providing of equipment and proctors, the grading of the exam, the mailing of individual score sheets to each examinee, and the providing to CBP of an array of exam metrics including distractor analysis and frequency distribution. As stated above, the current $200 fee has not been changed since 2000. According to data provided by CBP's Broker Management Branch, administrative and testing costs have increased since the fee was last changed. This increase in administrative fees coupled with switching to an all-electronic exam administered at private testing centers, makes it necessary to increase the customs broker exam fee from $200 to $390 for CBP to recover all of its costs to administer the customs broker exam.

CBP has determined that the fee of $390 is necessary to recover the costs associated with administering the customs broker license examination once the exam is made electronic. The customs broker examination is an established service provided by CBP that already requires a fee payment. Absent this rule, CBP would be operating the exam at a loss and this fee is intended to offset that loss. As such, a change in the fee is not a net cost to society, but rather a transfer payment from test takers to the government.3 CBP does recognize, however, that the fee change may have a distributional impact on prospective customs brokers. In order to inform stakeholders of all potential effects of the final rule, CBP has analyzed the distributional effects of the final rule in section “5. Dis­tribu­tional Impact.”

As discussed above, CBP is increasing the customs broker license examination fee from $200 to $390. The broker exam fee was last changed in 2000 when it was reduced from $300 to the current fee of $200. The lower cost paper-based examination that is currently being administered is being replaced by an all-electronic exam in an effort to fully modernize the customs broker testing procedure. This fee increase will allow CBP to fully recover all of its costs, including those to provide a fully electronic version of the customs broker examination beginning in October 2017. As discussed above, the fee increase is neither a cost nor a benefit of this rule since the broker exam fee is already an established fee. Thus, the fee increase is considered a transfer payment. As stated above, in order to inform stakeholders of all potential effects of the final rule, CBP has analyzed the distributional effects of the final rule in section “5. Dis­tribu­tional Impact.”

In addition to increasing the examination fee, CBP is changing the date the examination is given from the first Monday in October and April to the fourth Wednesday in October and April. Administering the examination on the first Monday in October is administratively difficult because it is too close to the conclusion of the Federal Government's fiscal year at the end of September. With this rule's changes, CBP and the examinees will benefit through greater predictability in years where federal budgets are uncertain.

Under the final rule, the customs broker license examination fee will increase from $200 to $390 in order for CBP to fully recover all of its costs to administer the broker examination. As noted above, these costs are increasing due to a shift in the administration of the exam that will go into effect beginning with the October 2017 exam.

The customs broker license examination fee will cost individuals an additional $190 when they register to take the customs broker license examination. As discussed above, CBP estimates that there will be 2,600 examinees per year (1,300 per session) who will take the customs broker license examination. Using this estimate and the additional cost that each examinee will incur, CBP estimates that the fee increase will result in a transfer payment to the government of approximately $494,000 per year (2,600 examinees per year * $190 proposed fee increase = $494,000).

This section examines the impact of the rule on small entities as required by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA). A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people).

The final rule will apply to all prospective brokers who take the broker exam. The fee is paid by the individual taking the broker exam and individuals are not considered small entities under the Regulatory Flexibility Act. However, some of these individuals are sole proprietors or may be reimbursed for this expense by their brokerage, so we consider the impact on these entities. The U.S. Census Bureau categorizes customs brokers (as well as freight forwarders and marine shipping agents) under the North American Industry Classification (NAICS) code 488510. As shown in Exhibit 1 below, approximately 96 percent of business entities in this NAICS code are small. As this rule will affect any prospective broker or his/her employer, regardless of its size, this rule has an impact on a substantial number of small entities.

The direct impact of this rule on each individual customs broker examinee, or his/her employer, is the fee increase of $190. To assess whether this is a significant impact, we examine the annual revenue for customs brokers. The U.S. Census Bureau categorizes customs brokers under the NAICS code 488510. In addition to customs brokers, this NAICS code also includes freight forwarders and marine shipping agents.4 The Small Business Administration (SBA) publishes size standards that determine the criteria for being considered a small entity for the purposes of this analysis. The SBA considers a business entity classified under the 488510 NAICS code as small if it has less than $15 million in annual receipts. We obtained the number of firms in each revenue category provided by the U.S. Census Bureau (see Exhibit 1 below). To estimate the average revenue of all firms under this NAICS code, we first assumed that each firm in each revenue category had receipts of the midpoint of the range. For example, we assumed that the 4,354 firms with annual receipts of between $100,000 and $499,000 had average receipts of $300,000. We then used the number of firms in each category to calculate the weighted average revenue across all small firms. Using this method, we estimate that the weighted average revenue for small businesses in this NAICS code is $1,496,197. The $190 increase in the broker exam fee, then, represents 0.01 percent of the weighted average annual revenue for brokers. CBP does not consider 0.01 percent of revenue per exam to be a significant impact. Accordingly, CBP certifies that this rule does not have a significant economic impact on a substantial number of small entities.

This document is being issued in accordance with 19 CFR 0.2(a), which provides that the authority of the Secretary of the Treasury with respect to CBP regulations that are not related to customs revenue functions was transferred to the Secretary of Homeland Security pursuant to section 403(l) of the Homeland Security Act of 2002. Accordingly, this final rule to amend such regulations may be signed by the Secretary of Homeland Security (or his delegate).

For the reasons given above, part 111 of title 19 of the Code of Federal Regulations (19 CFR part 111) is amended as set forth below:

Background

The final and temporary regulations that are the subject of these corrections are §§ 1.1441-0, 1.1441-1, 1.1441-1T, 1.1441-3, 1.1441-4, 1.6045-1, and 1.6049-5, promulgated under sections 1441, 6045, 6049, and 7805 of the Internal Revenue Code. These regulations affect persons making payments of U.S. source income to foreign persons and persons making payments to certain U.S. persons subject to reporting and backup withholding.

As published, the final regulations contain a number of items that need to be corrected or clarified. Several portions of TD 9808 could not be incorporated due to inaccurate amendatory instructions. Most of the correcting amendments to TD 9808 are needed to clarify or correct the results of these inaccurate amendatory instructions. The correcting amendments also include the addition, deletion, or modification of regulatory language to clarify the relevant provisions to meet their intended purposes, specifically to make a conforming change to the entry in the table of contents (§ 1.1441-0) for § 1.1441-1(e)(4)(ix); to correct typographical errors in §§ 1.1441-1(e)(4)(ix)(D), 1.1441-1T(c)(3)(ii), and 1.1441-3(d)(1); to clarify that allowances for electronic signatures in § 1.1441-1T(e)(4)(i)(B) and use of third party repository in § 1.1441-1T(e)(4)(iv)(E) are limited to Forms W-8; to remove an obsolete cross-reference to § 1.1441-4(h); and to return § 1.6045-1(m)(2)(ii) and (n)(12)(ii) to the way those provisions read prior to unnecessary revisions in TD 9808.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

Background

The final and temporary regulations (TD 9809) that are the subject of this correction are under sections 1471 through 1474 of the Internal Revenue Code.

As published, the final and temporary regulations (TD 9809) contain errors which may prove to be misleading and need to be clarified. Some portions of TD 9809 could not be incorporated due to inaccurate amendatory instructions. Several of the correcting amendments to TD 9809 are needed to clarify or correct the results of inaccurate amendatory instructions. These correcting amendments also include the addition, deletion, or modification of regulatory language to clarify the relevant provisions to meet their intended purposes or for consistency with other related provisions of these regulations. The addition of final regulatory language includes language that was inadvertently removed in a prior amendment to the final regulations.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

Since 1969, section 508 of the Code has required an organization seeking tax-exempt status under section 501(c)(3), as a condition of its exemption, to notify the Secretary of the Treasury (or his delegate) that it is applying for recognition of exempt status in the manner prescribed in regulations, unless it is specifically excepted from the requirement. Longstanding regulations under §§ 1.501(a)-1, 1.501(c)(3)-1, and 1.508-1 had required all organizations applying for recognition of section 501(c)(3) exempt status to submit a properly completed and executed Form 1023, “Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code,” (see § 1.508-1(a)(2) as contained in 26 CFR part 1, revised April 1, 2014) and to submit with, and as part of, the application, a detailed statement of its proposed activities (see §§ 1.501(a)-1(b)(1)(iii) and 1.501(c)(3)-1(b)(1)(v) as contained in 26 CFR part 1, revised April 1, 2014). Detailed procedures for applying for recognition of exemption are included in annual revenue procedures and in the instructions for Form 1023. See § 601.601(d)(2)(i)(b).

On July 2, 2014, final and temporary regulations (TD 9674) authorizing the Commissioner to adopt a streamlined application process that eligible organizations may use to apply for recognition of tax-exempt status under section 501(c)(3) were published in the Federal Register (79 FR 37630). The final and temporary regulations were effective and applicable on July 1, 2014. The 2014 final regulations removed and reserved certain paragraphs of the longstanding final regulations addressed by corresponding paragraphs of the new temporary regulations. Under the temporary regulations, the IRS instituted the streamlined application process on Form 1023-EZ, “Streamlined Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code,” the detailed procedures for which have been provided in annual revenue procedures, most recently in Rev. Proc. 2017-5, 2017-1 IRB 230, and in the instructions for Form 1023-EZ.

Also on July 2, 2014, a notice of proposed rulemaking (REG-110948-14) cross-referencing the temporary regulations and soliciting public comments and requests for a hearing was published in the Federal Register (79 FR 37697). No comments responding to the notice of proposed rulemaking were received, and no public hearing was requested or held. The IRS continues to consider improvements to Form 1023-EZ based on its own experience and informal comments received from the public and other stakeholders on the form, including whether to require applicants to submit a brief statement of actual or proposed activities. Because the proposed regulations contemplate that guidance published in the Internal Revenue Bulletin may prescribe the information required of Form 1023-EZ filers, including regarding their proposed activities, the Department of the Treasury (Treasury Department) and the IRS have concluded that the proposed regulations are sufficiently flexible to allow such a revision to the Form 1023-EZ at a future date, as resources permit. Accordingly, this Treasury decision adopts as final regulations, without substantive change, the proposed regulations set forth in the 2014 notice of proposed rulemaking and removes the corresponding temporary regulations.

The Treasury Department and the IRS have considered how the process of meeting the notice requirement of section 508 in seeking recognition of tax-exempt status may be made more efficient for certain smaller organizations. The IRS developed Form 1023-EZ to provide a simplified application form that relies more heavily on attestations by the organization that it meets the section 501(c)(3) organizational and operational requirements, which are explained in the accompanying form instructions. The new form was made available for use by eligible small organizations in July 2014, following the issuance of the temporary regulations and a revenue procedure describing the streamlined application process. The streamlined application process generally allows eligible small organizations to receive IRS determinations of tax-exempt status more quickly and allows the IRS to focus resources on more complex exemption applications and on compliance programs. This Treasury decision adopts the 2014 proposed regulations by amending §§ 1.501(a)-1, 1.501(c)(3)-1, and 1.508-1 to authorize the continued use of the IRS' streamlined process by eligible organizations to meet the notice requirements of section 508.

Specifically, this Treasury decision amends §§ 1.501(a)-1 and 1.501(c)(3)-1, as in effect before July 2, 2014, to authorize the Treasury Department and the IRS to modify, by applicable regulations or other guidance published in the Internal Revenue Bulletin, the requirement that an organization applying for section 501(c)(3) tax-exempt status provide a detailed statement of its proposed activities. This document also amends the § 1.501(a)-1 provisions relating to the Commissioner's ability to revoke a determination because of a change in the law or regulations, or for other good cause, to reference the Commissioner's authority to retroactively revoke a determination under section 7805(b). No substantive change is intended by this amendment. This Treasury decision also amends the requirement in § 1.501(a)-1(b)(3) that an organization claiming to be exempted from filing annual returns file a statement supporting its claim with and as a part of its application. As amended, § 1.501(a)-1(b)(3) allows an organization to file the statement either in its application, or in a manner prescribed in guidance published in the Internal Revenue Bulletin. See Rev. Proc. 2017-5 for rules for filing this statement on Form 8940, “Request for Miscellaneous Determinations.”

In addition, this document amends § 1.508-1 to provide that eligible organizations may use Form 1023-EZ to notify the Commissioner of their applications for tax-exempt status under section 501(c)(3). This Treasury decision also amends §§ 1.501(a)-1 and 1.508-1 to state that the office to which applications should be submitted will be published in the Internal Revenue Bulletin or instructions to the Form 1023 or Form 1023-EZ.

Finally, this Treasury decision incorporates minor revisions within the portions of §§ 1.501(a)-1, 1.501(c)(3)-1, and 1.508-1 that are otherwise being amended. In § 1.501(a)-1(a)(2), the reference to “internal revenue district” is removed because such reference has been made obsolete by the enactment of the Internal Revenue Service Restructuring and Reform Act of 1998, Public Law 105-206, 112 Stat. 685. References to a district director in §§ 1.501(a)-1, 1.501(c)(3)-1, and 1.508-1 are also modified as appropriate, as those positions no longer exist within the IRS. Similarly, references to obsolete due dates for filing notices described in section 508 and related transition relief provisions that are no longer relevant have been removed from §§ 1.508-1(a)(2)(i) and (b)(2)(iv). In addition, § 1.508-1(b)(2)(v) has been revised to remove a reference to the instructions for Form 4653, which is no longer in use.

The temporary regulations have applied since July 1, 2014, and this Treasury decision adopts the proposed regulations that cross-referenced the text of those temporary regulations without substantive change. Thus, the final regulations apply on and after July 1, 2014.

Rev. Proc. 2017-5 is published in the Internal Revenue Bulletin and is available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS Web site at http://www.irs.gov.

Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. Although this rule may affect a substantial number of eligible small entities that choose to use Form 1023-EZ to apply for recognition of tax-exempt status under section 501(c)(3), the Form 1023-EZ streamlines the application process, thereby reducing the economic impact on these entities. This rule merely permits use of the streamlined form of application available to satisfy the notice requirements under section 508(a). Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f), the temporary and proposed regulations preceding these final regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business and no comments were received.

The principal author of these regulations is Peter A. Holiat of the Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

Background

The final and temporary regulations (TD 9809) that are subject of this correction are under sections 1471 through 1474 of the Internal Revenue Code.

As published, the final and temporary regulations (TD 9809) contain an error that proves to be misleading and is in need of clarification.

Accordingly, the final and temporary regulations (TD 9809) that are the subject of FR Doc. 2016-31601 are corrected as follows:

The OJJDP Formula Grant Program is authorized by the Juvenile Justice and Delinquency Prevention Act (“JJDPA”), which authorizes OJJDP to provide an annual grant to each State to improve its juvenile justice system and to support juvenile delinquency prevention programs. The partial Final Rule that OJJDP published on January 17, and which took effect on March 21, 2017, amends the implementing regulations for the Formula Grant Program found at 28 CFR part 31. In particular, § 31.303(f)(5) amends States' reporting requirements in several aspects. This technical correction simply corrects inaccurate references to sections of the Act cited in the partial Final Rule.

This technical correction has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), The Principles of Regulation, and Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1, General Principles of Regulation. This technical correction is limited to amending the citations to sections of the Act and, therefore, is not a “regulation” or “rule” as defined by that Executive Order.

This technical correction to the partial Final Rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, “Federalism,” OJP has determined that this technical correction does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This technical correction to the partial Final Rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.”

This technical correction simply corrects citations to sections of the Act in the partial Final Rule published on January 17, 2017 and, accordingly, OJP finds it unnecessary to publish this technical correction for public notice and comment. See 5 U.S.C. 553(b). Similarly, because delaying the effective date of this technical correction would serve no purpose, OJP also finds good cause to make this rule technical correction effective upon publication. See 5 U.S.C. 553(d)(3).

OJP, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this technical correction and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities because it simply makes a technical correction to the partial Final Rule published on January 17, 2017. Further, a Regulatory Flexibility analysis is not required for this technical correction because OJP was not required to publish a general notice of proposed rulemaking for this matter. See 5 U.S.C. 604.

This technical correction is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This technical correction will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

This technical correction was not preceded by a published notice of proposed rulemaking; will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year; will not significantly or uniquely affect small governments; and does not contain significant intergovernmental mandates. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1535.

This technical correction does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. 3501-3521.

On March 30, 2017 the Coast Guard published an NPRM in the Federal Register (82 FR 15660) entitled “Special Local Regulation; Washburn Board Across the Bay, Lake Superior; Chequamegon Bay, WI.” The NPRM proposed to establish a no-wake zone within Chequamegon Bay on an annual basis during the Washburn Board Across the Bay paddle craft event, and invited comments on our proposed regulatory action related to this paddle craft event. The aforementioned NPRM was open for comment for 30 days in which no comments were received.

As noted above, we received no comments on our NPRM published on March 30, 2017. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM. This rule will create a permanent special local regulation in Chequamegon Bay for the annual Washburn Board Across the Bay racing event that historically takes place in the third or fourth week of July. The no-wake zone will be enforced on all vessels entering into 100 yards of either side of an imaginary line beginning in Washburn, WI at position 46°36′52″ N., 090°54′24″ W.; thence southwest to position 46°38′44″ N., 090°54′50″ W.; thence southeast to position 46°37′02″ N., 090°50′20″ W.; and ending southwest at position 46°36′12″ N., 090°51′51″ W. All vessels transiting through the no-wake zone will be required to travel at an appropriate rate of speed that does not create a wake except as may be permitted by the COTP or a designated representative. The precise times and date of enforcement for this special local regulation will be determined annually.

The COTP, Duluth, will use all appropriate means to notify the public when the special local regulation in this rule will be enforced. Such means may include publication in the Federal Register a Notice of Enforcement, Broadcast Notice to Mariners, and Local Notice to Mariners. The regulatory text 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.

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.

As this rule is not a significant regulatory action, this rule is exempt from the requirements of 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 regulatory action determination is based on the size, location, duration, and time-of-year of the Special Local Regulation. Vessel traffic will be able to safely transit through the no-wake zone which will be 200 yards wide and will impact only a small designated area of Lake Superior in Chequamegon Bay between Washburn, WI and Ashland, WI during a time of year when commercial vessel traffic is normally low. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16.

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 through the no-wake zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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. 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 would 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 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 made a preliminary determination 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 a no-wake zone being enforced for no more than 5 hours along a prescribed route between Washburn & Ashland, Wisconsin. Normally such actions are categorically excluded from further review under paragraph 34(h) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary Record of Environmental Consideration and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

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:

BNSF (bridge owner) has requested the BNSF Railroad Swing Span Drawbridge 12 be allowed to close the span, and need not open to marine traffic to facilitate fender replacements. The BNSF Railroad Swing Span Drawbridge 12A crosses the Swinomish channel, mile 8.4, near Whitmarsh, WA. The swing span provides 8 feet of vertical clearance in the closed-to-navigation position, and 100 feet of horizontal clearance in the open-to-navigation position. The span provides unlimited vertical clearance in the open-to-navigation position. Vertical and horizontal clearances are referenced to mean high-water elevation.

The closures of the BNSF Railroad Swing Span Drawbridge for the fender replacements will depend on the tidal status of the river, which means that work (and closure), will occur on different times on different days. The specific times of the bridge closures will be published in the weekly Coast Guard Local Notice to Mariners. BNSF work requires the swing span to be in the closed-to-navigation position when the ebb tide height reaches plus three feet above Mean Tide Level, and open the span when the flood tide height reaches plus three feet above Mean Tide Level. The deviation period allows the subject bridge to be in the closed-to-navigation position from 6 a.m. on July 1, 2017 to 6 p.m. on November 30, 2017, when the river is a plus three foot ebb tide, and open the bridge span on a plus three foot flood tide Monday through Saturday. However, if the project gets delayed, work on Sundays will be required.

The swing span at various times will only be able to open to 97 percent. This reduces the horizontal navigation clearance by five feet—from 100 feet to 95 feet. The five feet of horizontal clearance is needed to position work barges at various locations to replace fenders.

During the dates and times of the deviation, the drawbridge will not be able to operate according to the normal operating schedule. This drawbridge normally operates in accordance with 33 CFR 117.5. The subject bridge is normally maintained in the open-to-navigation position. The bridge shall operate in accordance to 33 CFR 117.5 at all other times. Waterway usage on the Swinomish Channel includes commercial tugs and barges, U.S. Coast Guard vessels, and large to small pleasure craft. The Coast Guard provided notice of this deviation to local mariners via the Local Notice Mariners and emails. One objection was submitted to the Coast Guard, and requested bridge closure times be posted in the Local Notice to Mariners. As stated herein, specific times will be published in the weekly Local Notice to Mariners.

Vessels will not be able to pass through the swing span via the marked navigation channel during the closure times. Working barges will be positioned in the channel at the bridge during the closed-to-navigation periods preventing safe passage. An alternate route is via the southern Swinomish Channel using Skagit Bay. The bridge will not be able to open for vessels responding to emergencies during the stated closure times. 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 vessels 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.

The Virginia Department of Transportation, owner and operator of the SR 175 Bridge that carries the SR 175 Bridge across the Lewis Creek Channel, mile 0.0, at Chincoteague, VA, has requested a temporary deviation from the current operating regulations to ensure the safety of the increased volumes of spectators that will be attending Annual Pony Run on Wednesday July 26, 2017, and Thursday July 27, 2017. This bridge is a bascule span drawbridge with a vertical clearance of 15 feet above mean high water in the closed position and unlimited vertical clearance in the open position. The current operating regulation is set out in 33 CFR 117.5. Under this temporary deviation, the bridge will be maintained in the closed-to-navigation position from 7 a.m. to 5 p.m. on Wednesday July 26, 2017 and Thursday July 27, 2017.

The Lewis Creek Channel is used by recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternative route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterway 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.

The Coast Guard will enforce regulations for the following five safety zones established for Annual Fireworks Displays within the Captain of the Port, Puget Sound Area of Responsibility in 33 CFR 165.1332 during the dates and times noted in the table below.

The following safety zones will be enforced from 5 p.m. on July 4, 2017, through 1 a.m. on July 5, 2017:

The special requirements listed in 33 CFR 165.1332(b) apply to the activation and enforcement of these safety zones. All vessel operators who desire to enter the safety zone must obtain permission from the Captain of the Port or their Designated Representative by contacting the Coast Guard Sector Puget Sound Joint Harbor Operations Center (JHOC) on VHF Ch 13 or Ch 16 or via telephone at (206) 217-6002.

The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This notice of enforcement is issued under authority of 33 CFR 165.1332 and 5 U.S.C. 552(a). In addition to the publication of this document in the Federal Register, the Coast Guard will provide the maritime community with extensive advanced notification of enforcement of these safety zones via the Local Notice to Mariners and marine information broadcasts on the day of the events.

From 9:30 p.m. to 11:30 p.m. on June 30, 2017 and July 1, 2017, the Coast Guard will enforce the safety zone regulation listed in the Table to 33 CFR 165.506 (a.)(16) that takes place on the Delaware River, Philadelphia, PA. This action is being taken to enhance the safety of life on navigable waterways during the fireworks display.

Coast Guard regulations for recurring firework events in Captain of the Port Delaware Bay Zone, are published in § 165.506, Safety Zones; Fireworks Displays within the Fifth Coast Guard District, which specifies the location of the regulated area for this safety zone as all waters of Delaware River, adjacent to Penns Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline at latitude 39°56′31.2″ N., longitude 075°08′28.1″ W.; thence west to latitude 39°56′29.1″ N., longitude 075°07′56.5″ W., and bounded on the north where the Benjamin Franklin Bridge crosses the Delaware River.

As specified in §  165.506, during the enforcement period, no vessel or person may enter, transit through, anchor in, or remain within the regulated area unless authorized by the Captain of the Port Delaware Bay or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP, designated representative or Patrol Commander.

This notice of enforcement is issued under authority of 33 CFR 165.506 and 33 U.S.C. 1233. The Coast Guard will provide the maritime community with advanced notice of enforcement of regulation by Broadcast Notice to Mariners (BNM), Local Notice to Mariners and on-scene actual notice by designated representative. In the event Captain of the Port Delaware Bay determines that it's not necessary to enforce the regulated area for the entire duration of the enforcement period, a BNM will be issued to authorize general permission to enter the regulated area.

The Coast Guard will enforce the safety zones in 33 CFR 165.801, Table 1, lines 13, 17, 19, 21, 22, 23, 24, 25, 26, 27, 29, 50, and 69 as follows:

Line 13, Riverview Park Independence Festival, from 9:30 p.m. through 11 p.m. on July 1, 2017; Line 17, Louisville Bats Firework Show, from 9 p.m. through 11 p.m. on July 4, 2017; Line 19, All American 4th of July, from 9 p.m. through 10 p.m. on July 4, 2017; Line 21, Spirit of Freedom Fireworks, from 9 p.m. through 9:30 p.m. on July 4, 2017; Line 22, Lighting up the Cumberlands Fireworks, from 9 p.m. through 9:30 p.m. on July 1, 2017; Line 23, Knoxville July 4th Fireworks, from 9:40 p.m. through 10:10 p.m. on July 4, 2017; Line 24, Music City July 4th, from 9 p.m. through 9:30 p.m. on July 4, 2017; Line 25, Grand Harbor Marina July 4th Celebration, from 10 p.m. through 10:20 p.m. on July 1, 2017; Line 26, City of Bellevue, KY/Bellevue Beach Park Concert Fireworks, from 9 p.m. through 11 p.m. on July 08, 2017; Line 27, Cincinnati Bell, WEBN, and Proctor Riverfest, from 12 p.m. to 10 p.m. on September 3, 2017; Line 29, City of Point Pleasant/Point Pleasant Sternwheel Fireworks, from 9:30 p.m. through 10 p.m. on July 1, 2017; Line 50, Evansville Freedom Celebration, from 9:45 p.m. through 10:15 p.m. on July 4, 2017; and Line 69, Newburgh Fireworks Display, from 9:45 p.m. through 10:10 p.m. on July 1, 2017. The regulations for the Coast Guard Sector Ohio Valley Annual and Recurring Safety Zones, § 165.801, Table 1, specifies the locations of these safety zones. As specified in § 165.23, during the enforcement period, no vessel may transit these safety zones without approval from the Captain of the Port Ohio Valley (COTP) or a designated representative. Sector Ohio Valley may be contacted on VHF-FM radio channel 16 or phone at 1-800-253-7465.

This notice of enforcement is issued under authority of 33 CFR 165.801 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Local Notice to Mariners and updates via Marine Information Broadcasts.

The Coast Guard will enforce the safety zone established in 33 CFR 165.1191, Table 1, Item number 13 on July 4, 2017. Upon commencement of the 20 minute fireworks display, scheduled to begin at 9:30 p.m. on July 4, 2017, the safety zone will encompass the navigable waters surrounding the land based launch site on the Pittsburg Marina Pier in approximate position 38°02′32″ N., 121°53′19″ W. (NAD 83). Upon the conclusion of the fireworks display the safety zone shall terminate. This safety zone will be in effect from 9:30 p.m. to 10 p.m. on July 4, 2017.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice of enforcement is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notification in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce a 100 foot safety zone around the fireworks barge during the loading, transit, and arrival of the fireworks barge from the loading location to the display location and until the start of the fireworks display. From 6 a.m. on July 1, 2017 until 8 a.m. on July 1, 2017, the fireworks barge will be loading pyrotechnics Obexers Marina in Homewood, CA. The fireworks barge will remain at the loading location until its transit to the display location. From approximately 8 a.m. to 10 a.m. on July 1, 2017, the loaded fireworks barge will transit from Obexers Marina to the launch site off-shore from Incline Village, NV in approximate position 39°13′54″ N., 119°56′25″ W. (NAD 83) where it will remain until the conclusion of the fireworks display. Upon the commencement of the 24-minute fireworks display, scheduled to begin at 9:30 p.m. on July 3, 2017, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius 1,000 feet, off-shore from Incline Village, NV, in approximate position 39°13′54″ N., 119°56′25″ W. (NAD 83) for the Execpro Services Fourth of July Fireworks in 33 CFR 165.1191, Table 1, Item number 28. This safety zone will be in effect from 6 a.m. on July 1, 2017 until 10:30 p.m. on July 3, 2017.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM.

Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice of enforcement is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552 (a). In addition to this notification in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

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.”

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Publishing an NPRM would be impractical due to the emergent nature of the environmental and salvage response to be conducted on the barge Vengeance.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The Coast Guard finds that it is impracticable to provide notice and receive comment due to the emergent nature of the environmental and salvage response to be conducted on the barge Vengeance.

The legal basis for the proposed rule is 33 U.S.C 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones.

The sunken barge Vengeance creates a significant underwater hazard to navigation to vessels transiting the San Francisco Bay. The response operations are complex in nature and involve multiple vessels. These operations, when conducted in close proximity to transiting vessels, create unpredictable hazards, hence necessitating a safety zone restricting all vessel traffic within this impacted area until environmental response operations are complete. This safety zone establishes a temporary restricted area on the navigable waters of the San Francisco Bay, east of Yerba Buena Island and north of Oakland Outer Harbor Entrance Channel within the following points: 37°48.549′ N. 122°20.891′ W., 37°48.498′ N. 122°21.134′ W., 37°48.346′ N. 122°21.068′ W., and 37°48.461′ N. 122°20.782′ W. (NAD 83). This restricted area applies to all vessels transiting the specified area.

The Coast Guard or a designated representative will enforce a safety zone in navigable waters of the San Francisco Bay, east of Yerba Buena Island and north of Oakland Outer Harbor Entrance Channel within the following points: 37°48.549′ N. 122°20.891′ W., 37°48.498′ N. 122°21.134′ W., 37°48.346′ N. 122°21.068′ W., and 37°48.461′ N. 122°20.782′ W. (NAD 83).

This safety zone is effective from June 1, 2017 through on July 31, 2017 or as announced via Broadcast Notice to Mariners.

The effect of the temporary safety zone will be to restrict navigation in the vicinity of the sunken barge Vengeance until the environmental and salvage response operations are complete. Except for persons or vessels authorized by the Captain of the Port or a designated representative, no vessel may enter or remain in the restricted area. These regulations are needed to keep vessels safely outside of the response zone until environmental and salvage response operations are complete.

We developed this rule after considering numerous statutes and Executive order 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.

As this rule is not a significant regulatory action, this rule is exempt from the requirements of 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).

We expect the economic impact of this rule will not rise to the level of necessitating a full Regulatory Evaluation. The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because it is outside of the Oakland Outer Harbor Entrance Channel and will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

The Regulatory Flexibility Act of 1980 (RFA), 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.

This rule may affect the following entities, some of which may be small entities: Owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing, if these facilities or vessels are in the vicinity of the safety zone at times when this zone is being enforced. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time, (ii) vessel traffic can transit safely around the safety zone, and (iii) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.

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 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 (NEPA) (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 a safety zone of limited size and duration. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration for categorically excluded actions 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 165 as follows:

This rulemaking amends a temporary safety zone for certain waters of the Housatonic River near Milford and Stratford, CT. Corresponding regulatory history is discussed below.

On August 25, 2016, United Illuminating Company notified the Coast Guard that it would conduct a project involving the installation of new transmission conductors over the Housatonic River near Stratford and Milford, CT. On March 14, 2017, the Coast Guard published a NPRM entitled, “Safety Zone; United Illuminating Company Housatonic River Crossing Project; Housatonic River; Milford and Stratford, CT” in the Federal Register (80 FR 13572). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this transmission project. During the comment period that ended April 13, 2017, we received zero comments.

On May 22, 2017, the Coast Guard published a TFR entitled, “Safety Zone; United Illuminating Company Housatonic River Crossing Project; Housatonic River; Milford and Stratford, CT” in the Federal Register (82 FR 23144). This project was schedule to be completed in two phases. The first phase involving the stringing of optical fiber ground wires on the North circuit of the project was scheduled to begin on April, 26, 2017 through May 4, 2017. The second phase involves the stringing of optical fiber ground wires on the South circuit from July 29, 2017 through August 3, 2017.

On May 10, 2017, United Illuminating Company notified the Coast Guard that due to foul weather it was behind schedule and was unable to complete phase one as described in the above-mentioned TFR. The project is now scheduled to begin on June 12, 2017 and be completed by August 31, 2017. Due to fluctuations in the project's schedule, the safety zone is being amended to permit enforcement of the safety zone during re-scheduled cable installation operations or other instances which may cause a hazard to navigation. The COTP Long Island Sound (LIS) has determined that the potential hazards associated with the cable installation project could be a safety concern for anyone within the work area. The work area is between the eastern and western shores of the Housatonic River. The southern boundary of the work zone begins at the Metro-North Rail Bridge and extends north approximately 525 feet upstream.

The Coast Guard is amending § 165.T01-0825 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 after weather delays did not give the Coast Guard enough time to publish an NPRM, take public comments regarding the amendments to § 165.T01-0825, and issue a new final rule before the rescheduled cable crossing operation is set to begin. It would be impracticable and contrary to the public interest to delay promulgating the amendments to this rule as it is necessary to protect the safety of the public and waterway users.

Under 5 U.S.C. 553(d)(3), and for the same reasons stated in the preceding paragraph, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The legal basis for this temporary rule is 33 U.S.C. 1231. The COTP LIS has determined that potential hazards associated with the river cable crossing project starting on June 12, 2017 and continuing through August 31, 2017 will be a safety concern for anyone within the work zone. This rule is needed to protect people and vessels within the safety zone while the cable crossing project is completed.

This rule amends the temporary safety zone in § 165.T01-0825. The safety zone will cover all navigable waters of the Housatonic River near Milford and Stratford, CT contained within the following area: Beginning at a point on land in position at 41°12′17″ N., 073°06′40″ W. near the Governor John Davis Lodge Turnpike (I-95) Bridge; then northeast across the Housatonic River to a point on land in position at 41°12′20″ N., 073°06′29″ W. near the Governor John Davis Lodge Turnpike (I-95) Bridge; then northwest along the shoreline to a point on land in position at 41°12′25″ N., 073°06′31″ W.; then southwest across the Housatonic River to a point on land in position at 41°12′22″ N., 073°06′43″ W.; then southeast along the shoreline back to point of origin (NAD 83). All positions are approximate. The duration of the zone is intended to ensure the safety of people and vessels in these navigable waters during any instance that necessitates a temporary closure of the Housatonic River at the work site. The safety zone will only be enforced during cable installation operations or other instances, when they cause a hazard to navigation. During enforcement periods, 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 VHF-FM marine channel16 eight hours 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.

This regulatory action determination is based on the size, location, and duration of the safety zone which will affect a small, designated area of the Housatonic River for less than one hour at a time. It also may be enforced temporarily during the cable installation project if necessitated by an emergency. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.

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 this regulated area may be small entities, for the reasons stated in section V.A above, 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 (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.

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 calls for no 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 would 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 made a determination 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 temporary rule involves a safety zone enforced for less than one hour at a time that would prohibit entry within the work zone during cable installation. It also may be enforced temporarily during the cable installation project if necessitated by an emergency, such as equipment falling from the towers into the Housatonic River. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A Record of Environmental Consideration (REC) 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 165 as follows:

The Coast Guard will enforce a safety zone in navigable waters around and under the fireworks barge within a radius of 100 feet during the loading, transit, and arrival of the fireworks barge to the display location and until the start of the fireworks display. From 7 a.m. until 10 a.m. on July 4, 2017, the fireworks barge will be loading pyrotechnics at the Kings Beach Boat Ramp, in Kings Beach, CA. From approximately 10 a.m. to noon on July 4, 2017, the loaded fireworks barge will transit from the Kings Beach Boat Ramp to the launch site off of Commons Beach in Tahoe City, CA in approximate position 39°10′03″ N., 120°08′09″ W. (NAD 83) where it will remain until the commencement of the fireworks display. Upon the commencement of the 20 minute fireworks display, scheduled to begin at approximately 9:30 p.m. on July 4, 2017, the safety zone will increase in size to encompass the navigable waters around and under the fireworks barge within a radius 1,000 feet in approximate position 39°10′03″ N., 120°08′09″ W. (NAD 83) for the Fourth of July Fireworks, Tahoe City, CA in 33 CFR 165.1191, Table 1, Item number 15. This safety zone will be in effect from 7 a.m. until 10:30 p.m. on July 4, 2017. Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce the safety zone established in 33 CFR 165.1191, Table 1, Item number 11 on July 4, 2017. Upon commencement of the 20 minute fireworks display, scheduled to begin at 9:30 p.m. on July 4, 2017, the safety zone will encompass the navigable waters surrounding the land based launch site at Waterfront Park near Martinez, CA within a radius of 560 feet in approximate position 38°01′32″ N., 122°08′24″ W. (NAD 83) for the Fourth of July Fireworks, City of Martinez in 33 CFR 165.1191, Table 1, Item number 11. Upon the conclusion of the fireworks display the safety zone shall terminate. This safety zone will be in effect from 9:30 p.m. to approximately 10 p.m. on July 4, 2017.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice of enforcement is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notification in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce a safety zone in navigable waters around and under the fireworks barges within a radius of 100 feet during the loading of the fireworks barges at the display location and until the start of the fireworks display. From 12:20 p.m. on June 28, 2017 until 5 p.m. on July 4, 2017 the fireworks barges will be loaded in the vicinity of Incline Beach, near Incline Village, NV at approximate position 39°14′13″ N., 119°57′01″ W. (NAD 83) where they will remain until the commencement of the fireworks display. Upon the commencement of the 35-minute fireworks display, scheduled to start at approximately 9:30 p.m. on July 4, 2017, the safety zone will increase in size to encompass the navigable waters around and under the fireworks barges within a radius of 1,000 feet at approximate position 39°14′13″ N., 119°57′01″ W. (NAD 83) for the Red, White, and Tahoe Blue Fireworks, Incline Village, NV in 33 CFR 165.1191, Table 1, Item number 19. This safety zone will be in effect from 12:20 p.m. on June 28, 2017 until 10:30 p.m. on July 4, 2017.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This document is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce a safety zone in navigable waters around and under the fireworks barge within a radius of 100 feet during the loading, transit, and until the start of the fireworks display. From 7 a.m. until 9 a.m. on July 3, 2017, the fireworks barge will be loading pyrotechnics at the Kings Beach Boat Ramp in Kings Beach, CA. From approximately 9 a.m. to 10 a.m. on July 3, 2017, the loaded barge will be towed from the Kings Beach Boat Ramp to the display location off of Kings Beach, CA in approximate position 39°13′59″ N., 120°01′37″ W. (NAD 83) where it will remain until the conclusion of the fireworks display. Upon the commencement of the 15 minute fireworks display, scheduled to begin at 9:30 p.m. on July 3, 2017, the safety zone will increase in size to encompass the navigable waters around and under the fireworks barge within a radius 1,000 feet in approximate position 39°13′59″ N., 120°01′37″ W. (NAD 83) for the Independence Day Fireworks, Kings Beach, CA in 33 CFR 165.1191, Table 1, Item number 17. This safety zone will be in effect from 7 a.m. until 10:30 p.m. on July 3, 2017.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice of enforcement is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notification in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce a 100 foot safety zone around the fireworks barge during the loading, transit, and arrival of the fireworks barge to the display location and until the start of the fireworks display. From 8 a.m. until 9 a.m. on July 4, 2017, the fireworks barge will be loading off of Dutra Corporation Yard in Rio Vista, CA. From approximately 9 a.m. to 2 p.m. on July 4, 2017 the loaded barge will transit from Dutra Corporation Yard to the launch site near Venice Island, CA in approximate position 38°03′21″ N., 121°32′03″ W. (NAD83). The fireworks barge will remain at launch site until the commencement of the fireworks display. Upon the commencement of the 20-minute fireworks display, scheduled to begin at approximately 9:30 p.m. on July 4, 2017, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius 1,000 feet in approximate position 38°03′21″ N., 121°32′03″ W. (NAD83) for the Delta Independence Day Celebration Fireworks in 33 CFR 165.1191, Table 1, Item number 14. This safety zone will be in effect from 8 a.m. to 10:30 p.m. on July 4, 2017.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

On December 29, 2016, the Sherwood Forest Club, Inc. of Sherwood Forest, MD notified the Coast Guard that from 9:15 p.m. to 10 p.m. on July 3, 2017, it will be conducting a fireworks display launched from the end of the Sherwood Forest Club main pier located adjacent to the Severn River, approximately 200 yards east of Brewer Pond in Sherwood Forest, MD. In the event of inclement weather, the fireworks display will be scheduled for July 7, 2017. In response, on April 6, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Special Local Regulations and Safety Zones; Recurring Marine Events and Fireworks Displays Within the Fifth Coast Guard District” (82 FR 16746). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended May 8, 2017, we received two comments. While the Coast Guard has made the determination to issue a temporary final rule concerning this year's fireworks display, USCG still plans to issue a final rule in the future to cover this recurring event in future years.

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 contrary to public interest because immediate action is needed to respond to the potential safety hazards associated with a fireworks display.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with the fireworks to be used in this July 3, 2017 display will be a safety concern for anyone on the Severn River near the end of the Sherwood Forest Club main pier. The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

As noted above, we received two comments on our NPRM published April 6, 2017. Both comments addressed issues not related to this rulemaking. Therefore, there are no changes in the regulatory text of this rule from the proposed rule in the NPRM based on the comments received.

Details of the event were provided to the Coast Guard on May 15, 2017, that allowed the COTP to reassess the potential hazards associated with the fireworks to be used in this July 3, 2017 display. The area of the safety zone at the fireworks discharge site located at end of the Sherwood Forest Club main pier, listed in the Table to 33 CFR 165.506 under Coast Guard Sector Maryland-National Capital Region—COTP Zone as No. (b.)27, is reduced from a 200 yards radius to a 150 yards radius. As a result, there is one change in the regulatory text of this rule from the proposed rule in the NPRM. The safety zone will be reduced in size from 200 yards from the center point located at 39°01′54.0″ N., longitude 076°32′41.8″ W. to a 150 yard radius.

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, the rule has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Severn River for 21/2 hours during the evening when vessel traffic is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

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 safety zone may be small entities, for the reasons stated in section V.A above 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 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule might 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. 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 would 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 would 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 made a preliminary determination 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 a safety zone lasting approximately 21/2 hours that will prohibit entry within 150 yards of a fireworks discharge site at the end of the Sherwood Forest pier. Normally such actions are categorically excluded from further review under paragraph 34(g) 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.

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:

After the Coast Guard analyzed the scope and potential impacts associated with a temporary safety zone being established, 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 a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to public interest. To delay implementation of the safety zone past the exercise date of July 13th, 2017 to publish and seek public comment is impracticable as it would unavoidably prevent the Coast Guard from ensuring the safety of the public and exercise participants from potential hazards associated with the exercise. It is for the same reason good cause exists under the public interest exception to the required public comment period. It is in the public's interest the safety zone be established prior to notice and comment to ensure the safety zone is in place for the UNDET exercise on July 13th, 2017.

For the same reasons as noted above, 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. Due to the potential dangers associated with the UNDET exercise, delaying the effective period of this safety zone beyond July 13th, 2017 would be impracticable and contrary to public interest. The temporary final rule and resulting restricted navigation area established by this rulemaking relates to the establishment of the safety zone itself. It does not address or regulate the UNDET exercise. The U.S. Navy environmental impact statement and public involvement for the UNDET activity is available at http://mitt-eis.com/.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Guam concurs with the U.S. Navy that potential hazards associated with the UNDET exercise on July 13th, 2017 may be a safety concern for anyone within a 700-yard radius above and below the surface in the area of the operation. This rule is needed to protect the public, exercise participants and vessels in the navigable waters within the safety zone during the exercise. Mariners and divers approaching too close to such exercises could potentially be exposed to hazardous conditions or place the exercise participants at risk.

This rule establishes a safety zone from 8 a.m. through 4 p.m. on July 13th, 2017. The safety zone will cover all navigable waters within 700-yards above and below the surface of the water around the UNDET exercise. The duration of the zone is intended to protect the public, exercise participants and vessels in navigable waters during the exercise. No vessel or person, with the exception of exercise participants, will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, 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 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location and duration of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of waters in the outer harbor for 8 hours or less. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone. Further, the rule allows vessels and persons to seek permission to enter the zone.

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 the reasons stated in section V.A above, 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 E.O 13132.

Also, this rule does not have tribal implications under E.O. 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 the establishment of a safety zone is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting up to eight hours that will prohibit entry within 700-yards above and below the surface of the UNDET exercise. 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) 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 165 as follows:

The Coast Guard will enforce a safety zone in navigable waters around and under a fireworks barge within a radius of 100 feet during the loading of the fireworks barge and until the start of the fireworks display. From 7 a.m. until 8 a.m. on July 4, 2017, the fireworks barge will be loading pyrotechnics at the launch site in Glenbrook Bay in approximate position 39°05′18″ N., 119°56′34″ W. (NAD 83). The fireworks barge will remain at the launch site in Glenbrook Bay in approximate position 39°05′18″ N., 119°56′34″ W. (NAD 83) until the commencement of the fireworks display. Upon the commencement of the 20 minute fireworks display, scheduled to begin at approximately 9:30 p.m. on July 4, 2017, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius 1,000 feet in approximate position 39°05′18″ N., 119°56′34″ W. (NAD 83). Upon the conclusion of the fireworks display the safety zone shall terminate. This safety zone will be in effect from 7 a.m. until approximately 10:30 p.m. on July 4, 2017.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice of enforcement is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notification in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce the safety zone in 33 CFR 165.1305 from 1:30 p.m. July 4, 2017 until 12:30 a.m. July 5, 2017 unless canceled sooner by the Captain of the Port Puget Sound. It is necessary to start the safety zone 30 minutes sooner since the Tacoma Freedom Fair Air Show will begin at 1:30 p.m. instead of 2 p.m. This action is being taken to provide for the safety of life on navigable waterways during the air show.

The safety zone resembles a rectangle protruding from the shoreline along Ruston Way and will be marked by the event sponsor. The specific coordinates of the safety zone location is listed in 33 CFR 165.1305.

As specified in § 165.1305(c), during the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port Sector Puget Sound (COTP) or a COTP designated representative. The Captain of the Port may be assisted by other federal, state and local law enforcement agencies in enforcing this regulation.

This notice of enforcement is issued under authority of 33 CFR 165.1305 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with advanced notification of the safety zone via the Local Notice to Mariners and marine information broadcasts on the day of the event. If the COTP determines that the safety zone need not be enforced for the full duration stated in this notice of enforcement, she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

The Coast Guard will enforce a safety zone extending around and under the fireworks barge within a radius of 100 feet during the loading, transit, and arrival of the fireworks barge to the display location until the start of the fireworks display.

From 9 a.m. until 3 p.m. on July 4, 2017, the fireworks barge will be loading pyrotechnics off of Pier 50 in San Francisco, CA. The fireworks barge will remain at the pier until its transit to the display location. From 6:30 p.m. to 8 p.m. on July 4, 2017 the loaded fireworks barge will transit from Pier 50 to the launch site near Sausalito, CA in approximate position 37°51′31″ N., 122°28′28″ W. (NAD83) where it will remain until the conclusion of the scheduled fireworks display.

Upon the commencement of the fireworks display at approximately 9:15 p.m. on July 4, 2017, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius of 1,000 feet in approximate position 37°51′31″ N., 122°28′28″ W. (NAD83) for the Fourth of July Fireworks, City of Sausalito in 33 CFR 165.1191, Table 1, Item number 10. This safety zone will be in effect from 9 a.m. to 10 p.m. on July 4, 2017.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

Executive Summary

Purpose of This Regulatory Action: Enacted December 10, 2015, the ESSA 1 reauthorized the ESEA, which provides Federal funds to improve elementary and secondary education in the Nation's public schools. The ESSA also made certain changes to sections 602 and 611 through 614 of the IDEA. Consequently, we are amending the IDEA regulations in parts 300 and 303 to reflect these changes.

Summary of the Major Provisions of This Regulatory Action: For the IDEA regulations in parts 300 and 303, these regulations:

• Revise the definition of the term “charter school” in § 300.7 to update the statutory reference to the ESEA's amended definition of that term.

• Remove the definition of the term “core academic subjects” in § 300.10, the definition of “highly qualified special education teachers” in § 300.18, and the definition of “scientifically based research” in §§ 300.35 and 303.32 because these terms have been removed from the ESEA.

• Revise the term “Limited English proficient” in § 300.27 to reflect the revisions to the term “English learner” in section 8101 of the ESEA.

• Revise § 300.102(a)(3)(iv) to incorporate the definition of “regular high school diploma” in section 8101(43) of the ESEA.

• Move the qualification requirements for special education teachers from § 300.18(b)(1) and (2) to § 300.156(c).

• Revise § 300.160(c) to reflect amendments made to the IDEA by the ESSA that clarify that guidelines and alternate assessments to measure academic progress under title I of the ESEA apply only to children with disabilities who are students with the most significant cognitive disabilities, whose achievement is measured against alternate academic achievement standards if a State has adopted such standards as permitted under section 1111(b)(1)(E) of the ESEA.

• Revise paragraph (b)(4)(xi) of § 300.704 (State-level activities), regarding the provision of technical assistance to schools and local educational agencies (LEAs) implementing comprehensive support and improvement activities or targeted support and improvement activities under section 1111(d) of the ESEA on the basis of consistent underperformance of the disaggregated subgroup of children with disabilities, to include direct student services described in section 1003A(c)(3) of the ESEA to children with disabilities.

We are revising the definition of “charter school” in § 300.7 by removing the phrase “section 5210(1)” and replacing it with “section 4310(2).” We are revising the authority citation for § 300.7 by removing “20 U.S.C. 7221i(1)” and replacing it with “20 U.S.C. 7221i(2).”

We are removing the definition of “core academic subjects” in § 300.10 and reserving § 300.10. This change is consistent with section 9215(ss)(1)(A) of the ESSA, which eliminated section 602(4) of the IDEA.

Consistent with section 9215(ss)(1)(B) of the ESSA, we are revising the definition of “excess cost” in § 300.16. Specifically, we are revising the cross-reference to the ESEA in § 300.16(a)(3) to read “under part A of title III of the ESEA.”

We are removing the definition of “highly qualified special education teachers” in § 300.18, consistent with section 9214(d)(1) of the ESSA, which eliminated section 602(10) of the IDEA, and we are reserving § 300.18. Consequently, we are removing the references to § 300.18 in §§ 300.138(a)(1) and 300.146(b) and adding a reference to § 300.156(c) in § 300.138(a)(1), as explained below. Based on the amendments made to the IDEA by section 9214(d)(2)(A) of the ESSA, as discussed in Subpart B, we are moving § 300.18(b)(1) and (2), regarding qualifications for special education teachers, to § 300.156(c). Consistent with changes made by section 9214(d)(2)(B) and (C) to section 612(a)(14)(D) and (E) of the IDEA, we are also removing references to the term “highly qualified” in § 300.156(d) and (e) and replacing them with references to personnel “who meet the applicable requirements described in paragraph (c) of this section.”

Consistent with section 9215(ss)(1)(C) of the ESSA, which amended section 602(18) of the IDEA, we are revising the definition of “Limited English proficient” in § 300.27 to adopt the meaning given to the term “English learner” in section 8101 of the ESEA.

Consistent with section 8002(1) of the ESEA, we are removing the definition of “scientifically based research” in § 300.35 because this definition has been removed from the ESEA. Section 300.35 is reserved. However, we are retaining references to “scientifically based research” in §§ 300.604(a)(1)(ii) and 300.704(b)(4)(xi), because these references were retained in sections 616(e)(1)(A)(ii) and 611(e)(2)(C)(xi), respectively.

We are revising the following cross-references to definitions:

• The cross-reference to the definition of “special education” in § 300.105(a)(1) is changed from § 300.36 to § 300.39, and from § 300.38 to § 300.39 in § 300.115(b)(1).

• The cross-reference to the definition of “supplementary aids and services” in § 300.105(a)(3) is changed from § 300.38 to § 300.42, and from § 300.41 to § 300.42 in § 300.154(b)(1)(i).

• The cross-reference to the definition of “transition services” in § 300.154(b)(1)(i) is changed from § 300.42 to § 300.43.

We are revising § 300.102(a)(3)(iv) to incorporate the definition of “regular high school diploma” currently included in section 8101(43) of the ESEA. The term means the standard high school diploma awarded to the preponderance of students in the State that is fully aligned with State standards, or a higher diploma, except that a regular high school diploma shall not be aligned to the alternate academic achievement standards described in section 1111(b)(1)(E) of the ESEA. A regular high school diploma does not include a recognized equivalent of a diploma, such as a general equivalency diploma, certificate of completion, certificate of attendance, or similar lesser credential. We are making this conforming change to ensure that “regular high school diploma” has the same meaning under the IDEA and the ESEA, and the definition is consistently applied under both programs. We are also updating the authority citation to reflect this change.

Consistent with section 9214(d)(2)(A) of the ESSA, we are revising § 300.156(c) by removing the language indicating that each person employed as a public school special education teacher in the State must be highly qualified by the deadline established in section 1119(a)(2) of the ESEA. In its place at § 300.156(c), we are adding language from the current definition of “highly qualified” in § 300.18(b)(1). The revisions are needed to clarify that the IDEA, as amended by the ESSA, retains the same requirements as in current § 300.18(b)(1) governing the qualifications of special education teachers. Additionally, consistent with section 9214(d)(2)(A) of the ESSA, we are retaining the requirements in current § 300.18(b)(2), regarding participation in an alternate route to certification as a special educator. The retention of these requirements is consistent with amendments to section 612(a)(14)(C)(i) of the IDEA, which require that an alternate route to certification as a special educator meets the minimum requirements described in 34 CFR 200.56(a)(2)(ii), as such section was in effect on November 28, 2008. Because 34 CFR 200.56(a)(2)(ii), as in effect on November 28, 2008, included the language in current § 300.18(b)(2), we are moving the language in current § 300.18(b)(2) to new § 300.156(c)(2). Additionally, consistent with amendments to section 612(a)(14)(D) and (E) of the IDEA made by section 9214(d)(2)(B) and (C) of the ESSA, we are removing references to “highly qualified” in paragraphs (d) and (e) of § 300.156 and replacing them with references to personnel “who meet the applicable requirements described in paragraph (c) of this section.”

Consistent with section 9215(ss)(3)(A) of the ESSA, which amended section 612(a)(15) of the IDEA (Performance goals and indicators), we are making the following changes to § 300.157. Consistent with section 9215(ss)(3)(A)(i) of the ESSA, which amended section 612(a)(15)(A)(ii) of the IDEA, we are replacing § 300.157(a)(2) in its entirety with the language “Are the same as the State's long-term goals and measurements of interim progress for children with disabilities under section 1111(c)(4)(A)(i) of the ESEA.” Consistent with amendments to section 612(a)(15)(B) made by section 9215(ss)(3)(A)(ii) of the ESSA, we are also revising § 300.157(b) by replacing the language “including measurable annual objectives for progress by children with disabilities under section 1111(b)(2)(C)(v)(II)” with “including measurements of interim progress for children with disabilities under section 1111(c)(4)(A)(i).”

We are making a number of amendments to §§ 300.160(c) through (f) to address amendments made by section 9215(ss)(3)(B) of the ESSA to section 612(a)(16)(C)(ii) of the IDEA, as well as changes made by the ESSA to section 1111(b)(2)(D) of the ESEA, which affect current (d), (e), and (f) of § 300.160. We are changing the title of § 300.160(c) from “Alternate Assessments” to “Alternate Assessments Aligned with Alternate Academic Achievement Standards for Students with the Most Significant Cognitive Disabilities.” We are adding the phrase “children with disabilities who are students with the most significant cognitive disabilities” in § 300.160(c)(1) with respect to State guidelines for participation in alternate assessments, because section 9215(ss)(3)(B) of the ESSA clarifies that the State guidelines referred to in section 612(a)(16)(C)(i) of the IDEA apply only to participation of children with disabilities who are students with the most significant cognitive disabilities in alternate assessments aligned with alternate academic achievement standards as permitted under section 1111(b)(1)(E) of the ESEA, if those children cannot take regular assessments, even with accommodations as indicated in their respective individualized education programs (IEPs).

Consistent with section 9215(ss)(3)(B) of the ESSA, which amended section 612(a)(16)(C)(ii) of the IDEA, we are also reorganizing § 300.160(c)(2) for greater clarity and to ensure consistency with 34 CFR 200.6(c) of the regulations for title I, part A of the ESEA. These changes will clarify that if a State has adopted alternate academic achievement standards as permitted under section 1111(b)(1)(E) of the ESEA and 34 CFR 200.1(d) of the regulations for title I, part A of the ESEA, the State must conduct alternate assessments that measure the achievement of children with disabilities who are students with the most significant cognitive disabilities against those standards. Consistent with amendments made to section 612(a)(16)(C)(ii) of the IDEA by section 9215(ss)(3)(B) of the ESSA, we are replacing the phrase “the State's challenging academic content standards and challenging student academic achievement standards” with “challenging State academic content standards under section 1111(b)(1) of the ESEA and alternate academic achievement standards under section 1111(b)(1)(E) of the ESEA.” Accordingly, § 300.160(c)(2)(iii) is removed, because the statutory amendments that form the basis for the above regulatory changes clarify that in assessing the academic progress of children with disabilities under title I, part A of the ESEA, the only alternate assessments permitted under the IDEA and title I of the ESEA are alternate assessments aligned with alternate academic achievement standards for children with disabilities who are students with the most significant cognitive disabilities under section 1111(b)(2)(D) of the ESEA. We are amending § 300.160(c)(3) by adding a reference to section 1111(b)(1)(E)(ii) of the ESEA and changing the title I, part A regulatory reference to § 200.6(c)(6) to reinforce that States are prohibited from adopting modified academic achievement standards or any other alternate academic achievement standards that do not meet the requirements in section 1111(b)(1)(E) of the ESEA for any students with disabilities under section 602(3) of the IDEA.

Consistent with section 1111(b)(2)(D)(i)(II) of the ESEA, and 34 CFR 200.6(d)(2), we are amending § 300.160(d) (Explanation to IEP Teams). We are adding new § 300.160(d)(1) to read, “A State (or in the case of a district-wide assessment, an LEA) must provide to IEP teams a clear explanation of the differences between assessments based on grade-level academic achievement standards and those based on alternate academic achievement standards, including any effects of State and local policies on a student's education resulting from taking an alternate assessment aligned with alternate academic achievement standards, such as how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma.” Consistent with section 1111(b)(2)(D)(i)(VII) of the ESEA, and 34 CFR 200.6(d)(4), we have added new § 300.160(d)(2), which reads, “A State (or in the case of a district-wide assessment, an LEA) must not preclude a student with the most significant cognitive disabilities who takes an alternate assessment aligned with alternate academic achievement standards from attempting to complete the requirements for a regular high school diploma.” Even though this language is now reflected in 34 CFR 200.6(d)(2) and (4), we believe this is important information for IEP teams to have in ensuring that students with the most significant cognitive disabilities taking alternate assessments aligned with alternate academic achievement standards receive the special education and related services that they need to enable them to be involved and make progress in the general education curriculum that is aligned with the State's challenging academic content standards for the grade in which the student is enrolled. Similarly, we believe it is important for parents to be fully informed of the possible implications of their child's participation in alternate assessments aligned with alternate academic achievement standards. Therefore, consistent with section 1111(b)(2)(D)(i)(II) of the ESEA, and 34 CFR 200.6(d)(3), we have revised § 300.160(e) (Inform parents) to read, “A State (or in the case of a district-wide assessment, an LEA) must ensure that parents of students selected to be assessed using an alternate assessment aligned with alternate academic achievement standards under the State's guidelines referred to in paragraph (c)(1) are informed, consistent with § 200.2(e), that their child's achievement will be measured based on alternate academic achievement standards, and how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma.” This revised language is also consistent with 34 CFR 200.6(d)(3), implementing title I, part A of the ESEA.

Consistent with section 612(a)(16)(C) of the IDEA and section 1111(b)(1)(E)(ii) of the ESEA, we are revising § 300.160(f) to make clear that school year 2016-2017 is the last school year for which States may report on the participation and performance of children with disabilities taking alternate assessments based on grade-level achievement standards. We are also correcting an inadvertent error in § 300.160(f)(3), regarding participation in assessments, that was included in the August 21, 2015 regulations governing title I, part A of the ESEA. See Improving the Academic Achievement of the Disadvantaged; Assistance to States for the Education of Children With Disabilities. 80 FR 50773. We are replacing school years prior to “2015-2016” with school years prior to “2016-2017.” This correction clarifies that school year 2015-2016, not school year 2014-2015, was the last school year in which States were permitted to administer alternate assessments based on modified academic achievement standards. We have also removed the words “if any” from § 300.160(f)(4), because the only alternate assessments that States may conduct to assess academic progress under title I of the ESEA are alternate assessments aligned with alternate academic achievement standards for students with the most significant cognitive disabilities. We are also changing the words “based on” to “aligned with” in paragraphs (f)(3) and (4) of § 300.160 to be consistent with the language used elsewhere in § 300.160(c) referring to alternate assessments conducted under this section.

Consistent with section 9215(ss)(4) of the ESSA, which amended section 613(a)(3) of the IDEA, we are revising § 300.207, regarding personnel development, by removing the reference to “section 2122 of the ESEA” and replacing it with “section 2102(b) of the ESEA.”

Evaluations and Reevaluations

Consistent with section 9215(ss)(5) of the ESSA, which amended section 614(b)(5)(A) of the IDEA, we are revising § 300.306(b)(1)(i), regarding determination of eligibility, by inserting the phrase “as such section was in effect on the day before the date of enactment of the Every Student Succeeds Act (December 9, 2015)” after “ESEA.” Development of IEP

We are correcting an inadvertent error in § 300.324(d)(2)(ii) (Children with disabilities in adult prisons) by changing the least restrictive environment reference from § 300.112 to § 300.114.

Consistent with section 9215(ss)(2)(A) and (B) of the ESSA, which amended section 611(e)(2)(C) and (e)(3)(C)(ii)(I)(bb) of the IDEA, we are making the following revisions. We are revising § 300.704(b)(4) (Other State-level activities) as follows:

• Removing “section 6111 of the ESEA” from paragraph (x) and replacing it with “section 1201 of the ESEA.”

• Revising paragraph (xi) regarding the provision of technical assistance to schools and LEAs by removing “including supplemental educational services as defined in section 1116(e) of the ESEA to children with disabilities, in schools or LEAs identified for improvement under section 1116 of the ESEA on the sole basis of the assessment results of the disaggregated subgroup of children with disabilities” and replacing it with “including direct student services described in section 1003A(c)(3) of the ESEA to children with disabilities, to schools or LEAs implementing comprehensive support and improvement activities or targeted support and improvement activities under section 1111(d) of the ESEA on the basis of consistent underperformance of the disaggregated subgroup of children with disabilities.”

• Replacing the phrase “to meet or exceed the objectives established by the State under section 1111(b)(2)(G) of the ESEA” with “based on the challenging academic standards described in section 1111(b)(1) of the ESEA.”

• Finally, we are revising § 300.704(c)(3)(i)(A)(2), regarding the LEA high cost fund, by changing the ESEA reference from section 9101 to section 8101.

Consistent with section 8002(1) of the ESEA, we are removing the definition of “scientifically based research” from § 303.32, because this definition has been removed from the ESEA. Section 303.32 is reserved. The definition of “scientifically based research” was adopted in the 2011 regulations under Part C of the IDEA to cross-reference the same definition under the ESEA. However, the term “scientifically based research” is still retained and applies to § 303.112 of the Part C regulations regarding the State's responsibility to make early intervention services available under section 635(a)(2) of the IDEA. See 76 FR 60140, 60163-60164 (Sept. 28, 2011).

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, it must identify two deregulatory actions. For Fiscal Year 2017, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. The final regulations are not a significant regulatory action. Therefore, the requirements of Executive Order 13771 do not apply.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final regulations only upon a reasoned determination that their benefits will justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

Under Executive Order 12866, we have assessed the potential costs and benefits of this regulatory action and have determined that these regulations will not impose additional costs to States and LEAs or to the Federal government. These regulations do not impose additional costs or administrative burdens because States will be in the process of developing and revising their regulations implementing title I of the ESEA to conform with the changes made by the ESSA. We believe any additional costs imposed on States by these final regulations will be negligible, primarily because they reflect technical changes which do not impose additional burden. Moreover, we believe any costs will be significantly outweighed by the potential benefits of ensuring consistency among the implementation of the IDEA and ESSA requirements for children with disabilities.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice- and-comment rulemaking when the agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B)). There is good cause to waive rulemaking here as unnecessary.

Rulemaking is “unnecessary” in those situations in which “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001), quoting U.S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act 31 (1947) and South Carolina v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983). These regulations implement the technical amendments made to the IDEA by the ESSA and include revisions made for consistency with the statute.

The APA also generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, because these final regulations include only conforming changes and technical corrections, there is good cause to make them effective on the day they are published.

These regulations do not contain any information collection requirements.

This program is subject to the requirements of Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of the Department's specific plans and actions for this program.

Based on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

For the reasons discussed in the preamble, the Secretary amends parts 300 and 303 of title 34 of the Code of Federal Regulations as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

Table 1 lists the rules addressed by this action with the dates that they were adopted by the local agencies and submitted by the California Air Resources Board (CARB).

On December 11, 2014, the EPA determined that the submittal for GBUAPCD Rule 431 and Town of Mammoth Lakes Municipal Code Chapter 8.30 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

We approved earlier versions of Rule 431 and Municipal Code Chapter 8.30 into the SIP on October 31, 2007 (72 FR 61526) and June 24, 1996 (61 FR 32341), respectively. The GBUAPCD and Town of Mammoth Lakes adopted revisions to the SIP-approved rules on May 5, 2014 and May 7, 2014 respectively, and CARB submitted them to us on November 6, 2014.

PM, including PM equal to or less than 10 microns in diameter (PM10), contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires states to submit regulations that control PM emissions. GBUAPCD Rule 431 (except paragraphs M and N) and Town of Mammoth Lakes Municipal Code Chapter 8.30 (except paragraphs 8.30.110 and 8.30.120) were revised to be consistent with each other, and to enable the GBUAPCD to be able to enforce air quality regulations governing residential wood combustion and road dust in the Town of Mammoth Lakes.1 The EPA's technical support document (TSD) has more information about these rules.

SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

On October 5, 2015 (80 FR 60049), the EPA redesignated the Mammoth Lakes Planning Area to attainment of the 24-hour PM10 National Ambient Air Quality Standard, pursuant to CAA section 107(d)(3)(D), and determined that the area met the requirements of CAA section 107(d)(3)(E). Accordingly, the Mammoth Lakes Planning Area is not subject to the nonattainment area requirement to implement either Reasonably Available Control Measures (RACM) or Best Available Control Measures (BACM) for PM10 and PM10 precursors in CAA section 189(b) and (e). Therefore, we are not evaluating GBUAPCD Rule 431 and Mammoth Lakes Municipal Code Chapter 8.30 for compliance with current RACM or BACM requirements with respect to PM10. Should a GBUAPCD nonattainment area take credit for Rule 431 in the future as part of meeting its CAA Part D requirements, then we will evaluate the rule for current RACM or BACM, as applicable, at that time.

Guidance and policy documents that we use to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The District is not including for SIP approval Rule 431 paragraphs M and N regarding fees and penalties, and similar provisions in Municipal Code Chapter 8.30, paragraphs 8.30.110 and 8.30.120. These paragraphs could lead to confusion with respect to similar federal requirements. The TSD has more information on our evaluation.

The TSD describes additional rule revisions that we recommend for the next time the local agencies modify the rules.

As authorized in section 110(k)(3) of the Act, the EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements.2 We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by July 31, 2017, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on August 29, 2017. This will incorporate these rules into the federally enforceable SIP.

Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the GBUAPCD Rule 431 (except paragraphs M and N) and Town of Mammoth Lakes Chapter 8.30 (except paragraphs 8.30.110 and 8.30.120), described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT 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 Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• does not provide the 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).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the 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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 29, 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 today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw 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)).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

EPA Region 8 is publishing this direct final notice of Partial Deletion for the former KMI Property of the Mystery Bridge Road/U.S. Highway 20 Superfund Site (Site) from the National Priorities List (NPL). The former KMI Property includes areas of soil and groundwater formerly impacted by benzene, toluene, ethylbenzene, and total xylenes (collectively known as BTEX) contamination. A map and surveyed boundaries of the former KMI Property are included in the docket and at the information repositories listed above. The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the Mystery Bridge Road/U.S. Highway 20 Superfund Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the NPL, 60 FR 55466 (Nov. 1, 1995). As described in § 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.

Because EPA considers this action to be non-controversial and routine, this action will be effective August 29, 2017 unless EPA receives adverse comments by July 31, 2017. Along with this direct final Notice of Partial Deletion, EPA is co-publishing a Notice of Intent for Partial Deletion in the “Proposed Rules” section of the Federal Register. If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely withdrawal of this direct final Notice of Partial Deletion before the effective date of the partial deletion, and the partial deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent for Partial Deletion and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Mystery Bridge Road/U.S. Highway 20 Superfund Site and demonstrates how portions of the Site proposed for deletion meet the deletion criteria. Section V discusses EPA's action to partially delete the Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR Section 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed responses under CERCLA have been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to the deletion of the former KMI Property of the Site:

1. EPA has consulted with the State of Wyoming prior to developing this direct final Notice of Partial Deletion and the Notice of Intent for Partial Deletion co-published in the “Proposed Rules” section of the Federal Register.

2. EPA has provided the State 30 working days for review of this notice and the parallel Notice of Intent for Partial Deletion prior to their publication today. The State, through the Wyoming Department of Environmental Quality (WDEQ), has concurred on the partial deletion of the Site from the NPL.

3. Concurrent with the publication of this direct final Notice of Partial Deletion, a notice of the availability of the parallel Notice of Intent for Partial Deletion is being published in a major local newspaper, the Casper Star Tribune. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the Site from the NPL.

4. The EPA placed copies of documents supporting the partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

5. If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent for Partial Deletion and the comments already received.

Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for further response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the former KMI Property from the Mystery Bridge Road/U.S. Highway 20 Superfund Site.

The Mystery Bridge Road/U.S. Highway 20 Superfund Site (Site), EPA ID No. WYD981546005, is located in Natrona County, Wyoming northeast of Casper, Wyoming and one mile east of Evansville. The Site is bordered on the north by the North Platte River, on the west by the Sinclair Refinery (formerly known as the Little America Refining Company or LARCO), on the south by U.S. Highway 20 and on the east by Mystery Bridge Road. The northern two thirds of the Site contain residential housing units built primarily between 1973 and 1983. The former KN Energy (KN) facility, now owned by Tallgrass Energy Partners, LP, formerly owned by KM Upstream LLC and referred to in this Notice of Partial Deletion as the former KMI Property, and the adjacent Dow Chemical Company and Dowell-Schlumberger, Inc (DOW/DSI) facilities comprise the southern third of the Site. Site investigations, initiated due to resident complaints of poor water and air quality, were completed in 1986 and 1987 and identified a BTEX plume originating from the former KMI Property and a volatile halogenated organic chemicals (VHOs) plume originating from the DOW/DSI property, moving northeast towards the North Platte River. The Site was proposed for listing on the National Priorities List June 24, 1988 (53 FR 23996, 23749-24010 (June 24, 1988)), and was listed on the National Priorities List on August 30, 1990 (55 FR 35508, 35419-35554 (August 30, 1990)). Potential releases at the Sinclair Refinery (formerly LARCO) facility are currently being addressed under a RCRA 3008(h) order.

KM Upstream LLC and its predecessors have operated a natural gas fractionation, compression, cleaning, odorizing, and transmission plant at the Site since 1965. During the plant start-up, an underground pipe burst, injecting 5,000 to 10,000 gallons of absorption oil into the subsurface. Also, initially, an earthen flare pit was used to collect spent material generated by the facility. Absorption oil, emulsions, anti-foulants, and anti-corrosive agents, crude oil condensate, liquids accumulated in the flare stack, potassium hydroxide treated waste, and lubrication oils and blowdown materials from plant equipment were all possibly collected in the flare pit. In 1984, a concrete-lined flare pit was constructed and put into operation. Leaks from the earthen flare pit, the initial absorption oil spill, and a catchment area that collected surface water run-off are all believed to have contributed to the BTEX soil and groundwater impacts.

The DOW/DSI facility has conducted oil and gas production enhancement services for the oil and gas industry since the 1950's. Contamination originating from the DOW/DSI facility is believed to have come from the truck wash water disposal system (believed to have contained chlorinated solvents) and the toluene storage area on the northern end of the facility.

EPA is the lead agency for the Site, and WDEQ is the support agency. Pursuant to the 1991 Consent Decree, KN, its successor Kinder Morgan Inc. (KMI), and DOW/DSI have jointly conducted and funded the remediation work at the Site. The former KMI Property is in continued operation as mid-stream gas processing facility.

The Site was divided into two media-specific operable units (OUs). OU1 refers to the groundwater at the Site and OU2 refers to the source areas in the soil at the Site.

Numerous studies and remedial investigations conducted within the Site have addressed the former KMI Property. In December 1987, KN and DOW/DSI entered into Administrative Orders on Consent (AOCs) to perform removal actions at their respective facilities. Based on the findings of the initial investigation, each PRP was required to prepare an Engineering Evaluation/Cost Analysis (EE/CA) of its property to document the extent and nature of the contaminants present and to support proposals of expedited removal actions. The AOC also required the two PRPs to perform a Remedial Investigation/Feasibility Study (RI/FS) of the Brookhurst Subdivision site. The Mystery Bridge/U.S. Hwy 20 Superfund site includes the former KMI Property, the DOW/DSI property, several adjacent industrial properties, the Burlington Northern right-of-way and the Subdivision. The Brookhurst Subdivision RI/FS was submitted in June 1990 and concluded that two groundwater plumes originated from the industrial area, one from the DOW/DSI property containing VHOs and one from the former KMI Property contaminated with BTEX and suggested that the two plumes were not commingled.

In early 1988, Phase I and Phase II Environmental Site Assessments were performed on the former KMI Property, focusing on the area around the flare pit. Based on the free product findings, a Phase III Environmental Site Assessment, including a soil vapor survey, was conducted in mid-1988 to identify the extent of impacts. The EPA developed site-specific soil action levels (SALs) in 1988 for the former KMI Property that were based on toxicity data current at the time including:

In March 1989, the KN EE/CA was submitted to the EPA.

On July 14, 1989 the EPA signed an action memorandum, choosing the suggested response strategy outlined by the EE/CA. In November 1989, KN started the OU1 response actions, coupling a groundwater pump and treat system with a soil vapor extraction system, to remove BTEX contaminants in three phases: Soil vapor, floating product, and dissolved in groundwater. In September 1990, EPA issued a Record of Decision (ROD) dividing the Site into two operable units: OU1, groundwater contaminant plumes, and OU2, contaminated soils which represent a source for the groundwater contamination. The 1990 ROD selected a remedial action for OU1, the groundwater, and deferred selection of the remedial action for OU2. The OU1 ROD set out the following remedial action objectives (RAOs) for the BTEX contamination:

(1) Prevent ingestion of water containing benzene, toluene, ethylbenzene, or xylene at concentrations that either (a) exceed MCLs or proposed MCLs, or (b) Present a total carcinogenic risk range greater than 1 × 10−4 to 1 × 10−6; and

(2) Restore the alluvial aquifer to concentrations that both (a) meet the MCLs or proposed MCLs for benzene, toluene, ethylbezene, and xylene, and (b) Present a total carcinogenic risk range less than 1 × 10−4 to 1 × 10−6. The area of attainment included the entire BTEX groundwater plume.

The applicable MCLs for BTEX were the National Primary Drinking Water Regulations (40 CFR 141.61):

An institutional control to restrict the groundwater use was also included in the OU1 ROD. In October 1991, a Consent Decree, where parties agreed to implement the OU1 remedy, was signed between EPA, KN and DOW/DSI.

The KN OU1 remediation system operated from November 1989 to August 1996 and involved a pump-and-treat system, where the effluent was sent through an air stripper and a soil vapor extraction system. The clean effluent from the air stripper was returned to the subsurface. A groundwater monitoring plan (GWP) was developed in 1993 and specified that quarterly post-remedial action (RA) monitoring would begin after the remediation system was discontinued and 12 months of groundwater sampling results were below the MCLs.

KMI assumed responsibility for KN's portion of the Site when KMI purchased KN in 1999. After a minimum of eight quarterly post-RA sampling events were conducted where the 90 percent one-tailed upper confidence limit (UCL90) concentrations for benzene, ethylbenzene, toluene, and total xylenes were below the MCLs for each chemical, compliance with the RAOs for the BTEX groundwater plume was achieved. It was confirmed that the OU1 RAOs were achieved in 2010 and the results were recorded in the September 30, 2010 OU2 ROD.

KN, KMI, and DOW each conducted work at the Site under an Administrative Order on Consent that addressed the contaminated soils on their respective properties. The OU2 ROD served to document that this previous work was completed and that this work cleaned up the DOW/DSI property and the KMI Property to levels safe for industrial use. Contaminants have been left above levels that allow for unlimited use and unrestricted exposure and it is acknowledged that land uses around these properties are transitioning from rural to residential and commercial. The OU2 ROD concluded that ICs were necessary for future protectiveness. Specifically for the former KMI Property, the RAOs specified in the OU2 ROD include:

• Restricting the use of the KMI Property to industrial uses.

• Controlling the handling of excavated soils on the KMI Property.

The OU2 RAOs have been achieved through institutional controls placed on the former KMI Property and implemented through restrictive covenants within the deed transferring the KMI Property from KMI to KM Upstream LLC and, more recently, to Tallgrass Energy Partners, LP. The ground water institutional control from the OU1 ROD restricting ground water use except for sampling purposes at the former KMI Property was also implemented in 2010 as part of the restrictive covenants.

No operation and maintenance is required at the former KMI Property in addition to maintaining institutional controls.

Because the remedial action implemented for the former KMI Property results in contaminants remaining on site above concentrations that allow for unlimited use and unrestricted exposure, continued five-year reviews will be necessary to ensure that the remedy is protective of human health and the environment. The Fourth Five-Year Review for the Site, noted that the pump and treat remedy, as selected in the ROD, was shutdown prior to meeting cleanup levels at the site. Proper documentation for the shutdown, and Agency approval was identified for the decision to turn of the pump and treat system, and can be found in the deletion docket.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k) and CERCLA section 117, 42 U.S.C. 9617. Documents in the partial deletion docket, which the EPA relied on for the partial deletion from the NPL, are available to the public in the information repositories, and a notice of availability of the Intent for Partial Deletion has been published in the Casper Star Tribune to satisfy public participation procedures required by 40 CFR 300.425(e)(4).

For the former KMI Property of both OU1 and OU2, EPA and the WDEQ have determined that the responsible parties completed all appropriate response actions required by the OU1 and OU2 Records of Decision and the 1991 Consent Decree. Additionally, institutional controls are in place that will limit property use to industrial purposes only and will control the handling of excavated soils and restrict ground water use to sampling only without further approval from EPA or the State. EPA has consulted with the State on the proposed partial deletion of the former KMI Property from OU1 and OU2 from the NPL prior to developing this notice of Partial Deletion.

Pursuant to CERCLA section 121(c) and the NCP, EPA will conduct the next five-year review by September 2019 to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure.

The EPA, with the concurrence of the State of Wyoming through WDEQ, has determined that all appropriate response actions under CERCLA, other than maintenance of institutional controls and five-year reviews, have been completed. Therefore, EPA is deleting the former KMI Property, including the groundwater from OU1 and the soils/source area from OU2 of the Mystery Bridge Road/U.S. Highway 20 Superfund Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective August 29, 2017 unless EPA receives adverse comments by July 31, 2017. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the partial deletion and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

This document announces that on June 8, 2017, OMB approved the information collection requirements, OMB Control Numbers 3060-0800 and 3060-1058, for changes to the FCC Forms 603 and 608.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that on June 8, 2017, OMB approved changes to FCC Form 603 and FCC Form 608. In doing so, OMB approved changes to the information collection requirements of OMB Control Numbers 3060-0800 and 3060-1058. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Numbers are 3060-0800 and 3060-1058.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0800.

OMB Approval Date: June 8, 2017.

OMB Expiration Date: June 30, 2020.

Title: FCC Application for Assignments of Authorization and Transfers of Control: Wireless Telecommunications Bureau and/or Public Safety and Homeland Security Bureau.

Form Number: FCC Forms 603.

Respondents: Individuals and households; Business or other for-profit entities; Not-for-profit institutions; and State, local or tribal government.

Number of Respondents and Responses: 2,447 respondents and 2,447 responses.

Estimated Time per Response: 0.5-1.75 hours.

Frequency of Response: Recordkeeping requirement, on occasion reporting requirement and periodic reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in 47 U.S.C. 154, 155, 158, 161, 301, 303(r), 308, 309, 310 and 332.

Total Annual Burden: 2,759 hours.

Total Annual Cost: $366,975.

Nature and Extent of Confidentiality: In general, there is no need for confidentiality with this collection of information.

Privacy Act Impact Assessment: Yes.

Needs and Uses: FCC Form 603 is a multi-purpose form used to apply for approval of assignment or transfer of control of licenses in the wireless services. The data collected on this form is used by the FCC to determine whether the public interest would be served by approval of the requested assignment or transfer. This form is also used to notify the Commission of consummated assignments and transfers of wireless and/or public safety licenses that have previously been consented to by the Commission or for which notification but not prior consent is required. This form is used by applicants/licensees in the Advanced Wireless Services, Public Mobile Services, Personal Communications Services, General Wireless Communications Services, Private Land Mobile Radio Services, Broadcast Auxiliary Services, Broadband Radio Services, Educational Radio Services, Fixed Microwave Services, Maritime Services (excluding ships), and Aviation Services (excluding aircraft).

The purpose of this form is to obtain information sufficient to identify the parties to the proposed assignment or transfer, establish the parties' basic eligibility and qualifications, classify the filing, and determine the nature of the proposed service. Various technical schedules are required along with the main form applicable to Auctioned Services, Partitioning and Disaggregation, Undefined Geographical Area Partitioning, Notification of Consummation or Request for Extension of Time for Consummation.

The data collected on FCC Form 603 includes the FCC Registration Number (FRN), which serves as a “common link” for all filings an entity has with the FCC. The Debt Collection Improvement Act of 1996 requires entities filing with the Commission use an FRN.

The OMB approved revisions to the previously approved collection of information under OMB Control Number 3060-0800 to permit the collection of the additional information for Commission licenses and permits, pursuant to the rules and information collection requirements adopted by the Commission in the Part 1 R&O and the Mobile Spectrum Holdings R&O. As part of the collection, the Commission is seeking approval for the information collection and recordkeeping requirements associated with FCC Form 603.

In addition, OMB approved various other, non-substantive editorial/consistency edits and updates to FCC Form 603 that corrected inconsistent capitalization of words and other typographical errors, and better align the text on the form with the text in the Commission rules both generally and in connection with recent non-substantive, organizational amendments to the Commission's rules. Also, in certain circumstances, the Commission requires the applicant to provide copies of their agreements. The Commission did not anticipate that these revisions will impact the collection filing burden. OMB therefore approved the FCC revision of its currently approved information collection on FCC Form 603 to revise FCC Form 603 accordingly.

OMB Control Number: 3060-1058.

OMB Approval Date: June 8, 2017.

OMB Expiration Date: June 30, 2020.

Title: FCC Application or Notification for Spectrum Leasing Arrangement: Wireless Telecommunications Bureau and/or Public Safety and Homeland Security Bureau.

Form Number: FCC Form 608. Respondents: Business or other for profit entities; Not-for-profit institutions; and State, local or tribal government.

Number of Respondents and Responses: 991 respondents; 991 responses.

Estimated Time per Response: 0.5-1 hours.

Frequency of Response: Recordkeeping requirement, on occasion reporting requirement and periodic reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this collection of information is contained in 47 U.S.C. 154, 155, 158, 161, 301, 303(r), 308, 309, 310 and 332.

Total Annual Burden: 996 hours.

Total Annual Cost: $1,282,075.

Nature and Extent of Confidentiality: In general there is no need for confidentiality with this collection of information.

Privacy Act Impact Assessment: No impact(s).

Needs and Uses: FCC Form 608 is a multipurpose form. It is used to provide notification or request approval for any spectrum leasing arrangement (“Leases”) entered into between an existing licensee (“Licensee”) in certain wireless services and a spectrum lessee (“Lessee”). This form also is required to notify or request approval for any spectrum subleasing arrangement (“Sublease”). The data collected on the form is used by the FCC to determine whether the public interest would be served by the Lease or Sublease. The form is also used to provide notification for any Private Commons Arrangement entered into between a Licensee, Lessee, or Sublessee and a class of third-party users (as defined in Section 1.9080 of the Commission's Rules).

The OMB approved revisions to the previously approved collection of information under OMB Control Number 3060-1058 to permit the collection of the additional information for Commission licenses and permits, pursuant to the rules and information collection requirements adopted by the Commission in the Part 1 R&O and the Mobile Spectrum Holdings R&O. As part of the collection, the Commission is seeking approval for the information collection and recordkeeping requirements associated with FCC Form 608.

In addition, OMB approved various other, non-substantive editorial/consistency edits and updates to FCC Form 608 that corrected inconsistent capitalization of words and other typographical errors, and better align the text on the form with the text in the Commission rules both generally and in connection with recent non-substantive, organizational amendments to the Commission's rules. Also, in certain circumstances, the Commission requires the applicant to provide copies of their agreements. The Commission did not anticipate that these revisions will impact the collection filing burden. OMB therefore approved the FCC revision of its currently approved information collection on FCC Form 608 to revise FCC Form 608 accordingly.

This is a summary of the Commission's document, DA 17-484, MB Docket No. 16-306, GN Docket No. 12-268, adopted and released May 18, 2017. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The complete text of this document is also available for download at http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0518/DA-17-484A1.pdf.

The Incentive Auction Task Force and Media Bureau (collectively, the Commission) previously determined that stations that are eligible for reimbursement from the TV Broadcast Relocation Fund in connection with their being assigned to a new channel through the Incentive Auction must file reports showing how the disbursed funds have been spent and what portion of the stations' construction in complete, and sought comment on whether non-reimbursable stations should also file reports to show what portion of the stations' construction is complete. These Transition Progress Reports will help the Commission, broadcasters, those involved in construction of broadcast facilities, other interested parties, and the public to monitor the construction of stations.

The Commission announces that each full power and Class A television station that will be changing channels during the post-incentive auction transition and is not eligible for reimbursement of its relocation costs from the TV Broadcast Relocation Fund established by the Middle Class Tax Relief and Job Creation Act of 2012 must follow the same progress reporting requirements as reimbursable stations and periodically file an FCC Form 2100—Schedule 387 (Transition Progress Report) that is attached as Appendix A to the Public Notice DA 17-34. The appendix is available at https://apps.fcc.gov/edocs_public/attachmatch/DA-17-34A1.docx. Non-Reimbursable stations must file Transition Progress Reports using the Commission's electronic filing system starting with first full calendar quarter after close of the Incentive Auction, which occurred on April 13, 2017, and on a quarterly basis thereafter. In addition to these quarterly reports, Non-Reimbursable stations must file the reports: (1) 10 weeks before the end of their assigned construction deadline; (2) 10 days after they complete all work related to construction of their post-auction facilities; and (3) five days after they cease broadcasting on their pre-auction channel. Once a station has filed a Transition Progress Report certifying that it has completed all work related to construction of its post-auction facilities and has ceased operating on its pre-auction channel, it will no longer be required to file reports. The Commission will automatically line the Transition Progress Reports to non-reimbursable stations' online local public inspection file on the Commission's Web site.

Some commenters proposed changes to questions in the Transition Progress Report Form adopted for reimbursable stations and certain filing procedures, which the Commission treated as requests for reconsideration and declined to adopt. The Commission declined to incorporate the response of “unknown at this time” into the form for each question, to change the wording of a question dealing with auxiliary antenna systems, to require a more detailed level of reporting with respect to a number of questions, to require reports to be filed on a less frequent basis, or to allow group owners to file a single report for all of their stations.

Paperwork Reduction Act of 1995 Analysis: This document contains new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, has invited the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document in a separate Federal Register Notice, as required by the Paperwork Reduction Act of 1995, Public Law 104-13, see 44 U.S.C. 3507.

The Commission will send a copy of the document, DA 17-484, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Transition Progress Report Public Notice. The Incentive Auction Task Force and Media Bureau sought written public comments on the proposals in the Transition Progress Report Public Notice, including comment on the IRFA. Because we adopt filing requirements for stations in the Public Notice, we have included this Final Regulatory Flexibility Analysis (“FRFA”), which conforms to the RFA.

Need for, and Objectives of, the Rule Changes. The Federal Communications Commission (Commission) adopted a 39-month transition period during which television stations that are assigned to new channels in the incentive auction must construct their new facilities. The Commission determined that reassigned television stations that are eligible for reimbursement from the TV Broadcast Relocation Fund are required, on a regular basis, to provide progress reports to the Commission showing how the disbursed funds have been spent and what portion of construction is complete. In the Transition Progress Report Public Notice, the Media Bureau adopted a form for such progress reports and set the filing deadlines for such reports. The Public Notice requires that that reassigned television stations that are not eligible for reimbursement from the TV Broadcast Relocation Fund (Non-Reimbursable Stations) provide the same progress reports to the Commission on the same schedule as that specified for stations eligible for reimbursement. The Transition Progress Report Form requires all reassigned stations to certify that certain steps toward construction of their post-auction channel either have been completed or are not required, and to identify potential problems which they believe may make it difficult for them to meet their construction deadlines. The information in the progress reports will be used by the Commission, stations, and other interested parties to monitor the status of reassigned stations' construction during the 39-month transition period.

Summary of Significant Issues Raised by Public Comments in Response to the IRFA. No formal comments were filed on the IRFA.

Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. No comments were filed on the IRFA by the Small Business Administration.

Description and Estimate of the Number of Small Entities to Which the Rules Will Apply. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.

Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: those having $38.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of that number, 656 had annual receipts of $25,000,000 or less, 25 had annual receipts between $25,000,000 and $49,999,999 and 70 had annual receipts of $50,000,000 or more. Based on this data we therefore estimate that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

The Commission has estimated the number of licensed commercial television stations to be 1,384. Of this total, 1,264 stations (or about 91 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on February 24, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 394. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent.

Class A TV Stations. The same SBA definition that applies to television broadcast stations would apply to licensees of Class A television stations. As noted above, the SBA has created the following small business size standard for this category: Those having $38.5 million or less in annual receipts. The Commission has estimated the number of licensed Class A television stations to be 417. Given the nature of these services, we will presume that these licensees qualify as small entities under the SBA definition.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. The Public Notice adopted the following new reporting requirements. Non-Reimbursable Stations must file the Transition Progress Report on a quarterly basis, with the first Report being filed beginning for the first full quarter after the release of a public notice announcing the completion of the incentive auction. The deadline for filing the first Report is October 10, 2017. We further require that Non-Reimbursable Stations file Transition Progress Reports: (1) 10 weeks before the end of their assigned construction deadline; (2) 10 days after they complete all work related to construction of their post-auction facilities; and (3) five days after they cease broadcasting on their pre-auction channel. The Transition Progress Reports will be filed electronically using the Commission's electronic filing system, and the Commission will make the filings viewable in stations' online public inspection files. All reassigned stations are assigned to one of 10 Post-Auction Transition Plan Phase with construction deadline requirements ranging from November 30, 2018 to July 3, 2020. Once a station has ceased operating on its pre-auction channel, it no longer needs to file reports.

Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standard; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

The reporting requirement adopted in the Public Notice will allow the Commission, broadcasters (including those filing the Reports), and other interested parties to more closely monitor the status of construction during the transition, and focus resources on ensuring successful completion of the transition by all reassigned stations and continuity of over-the-air television service. In addition, the burdens of the reporting requirements are minimal and we believe the benefits of the reporting requirements, which will facilitate the successful post-incentive auction transition, outweigh any burdens associated with compliance.

Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rule. None.

Report to Congress. The Commission will send a copy of the Public Notice, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. A copy (or summary thereof) will also be published in the Federal Register.

Report to Small Business Administration. The Commission will send a copy of the Public Notice, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

The snapper-grouper fishery in the South Atlantic region is managed under the FMP and includes speckled hind and warsaw grouper, along with other snapper-grouper species. The FMP was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On January 4, 2017, NMFS published a notice of availability of Amendment 36 and requested public comment (82 FR 810). On January 18, 2017, NMFS published the proposed rule to implement Amendment 36 and requested public comment (82 FR 5512). The proposed rule and Amendment 36 outline the rationale for the actions contained in this final rule. A summary of the actions implemented by Amendment 36 and this final rule is provided below.

This final rule modifies the FMP framework procedures to allow spawning SMZs to be established or modified through the framework process; establishes spawning SMZs off North Carolina, South Carolina, and Florida; establishes transit and anchoring provisions in the spawning SMZs; establishes a sunset provision for most of the spawning SMZs; and moves the existing Charleston Deep Artificial Reef MPA 1.4 mi (2.3 km) northwest to match the permitted site boundary.

The current FMP contains framework procedures to allow the Council to modify certain management measures, such as annual catch limits and other management measures, via an expedited process (see 50 CFR 622.194; 56 FR 56016, October 31, 1991). In Amendment 36 and this final rule, the Council has included changes to spawning SMZs, such as boundary modifications and the establishment or removal of spawning SMZs, under the framework process. For example, this final rule allows the Council to remove a spawning SMZ if monitoring efforts do not document evidence of spawning snapper-grouper species within the boundary. The revisions to the FMP framework procedures also allow the Council to remove the 10-year sunset provision for a spawning SMZ if monitoring efforts document snapper-grouper species' spawning inside a spawning SMZ. The Council decided that changing spawning SMZs through an expedited process can have beneficial biological and socio-economic impacts, especially if the changes respond to newer information, such as spawning locations for snapper-grouper species. The Council concluded that the framework process will allow adequate time for the public to comment on any proposed change related to a spawning SMZ.

The Council is establishing five snapper-grouper spawning SMZs in the South Atlantic off North Carolina, South Carolina, and Florida. This final rule prohibits fishing for or harvest of snapper-grouper species year-round in the spawning SMZs. The final rule establishes other restrictions in the spawning SMZs, including transiting with snapper-grouper species on board and anchoring.

The spawning SMZ off North Carolina is called South Cape Lookout (5.1 sq mi; 13.2 sq km). The final rule establishes three spawning SMZs off South Carolina that are called Devil's Hole/Georgetown Hole (3.03 sq mi; 7.8 sq km), Area 51 (approximately 3 sq mi; 7.8 sq km), and Area 53 (approximately 3 sq mi; 7.8 sq km). The spawning SMZ off the east coast of the Florida Keys is called Warsaw Hole/50 Fathom Hole (3.64 sq mi; 9.4 sq km).

Another purpose of spawning SMZs is to reduce bycatch and bycatch mortality of snapper-grouper species, including speckled hind and warsaw grouper. Currently, retention of speckled hind and warsaw grouper is prohibited in Federal waters in the South Atlantic. Prohibiting the targeting or harvest of snapper-grouper species in specified areas where these species are known to occur and possibly spawn is expected to reduce encounters with these deep-water species and provide protection for reproduction. The Council concluded that protecting snapper-grouper species within the spawning SMZs could enhance the opportunity for these species to reproduce and introduce more eggs and larvae into the environment.

This final rule allows fishing vessels to transit through the spawning SMZs with snapper-grouper species on board only when fishing gear is properly stowed. “Properly stowed” means that trawl or try nets and the attached doors must be out of the water, but are not be required to be on deck or secured below deck. Terminal gear (hook, leader, sinker, flasher, or bait) used with automatic reels, bandit gear, buoy gear, handline, or rod and reel would have to be disconnected and stowed separately from such fishing gear and sinkers would have to be disconnected from down riggers and stowed separately. Except under the limited condition to possess snapper-grouper species while transiting a spawning SMZ with fishing gear properly stowed, vessels in the spawning SMZs are prohibited from fishing for, harvesting, or possessing snapper-grouper species year-round in these areas. Except for the Area 51 and Area 53 Spawning SMZs off South Carolina, persons on board a fishing vessel are not allowed to anchor, use an anchor or chain, or use a grapple and chain while in spawning SMZs. Fishermen continue to be allowed to troll for pelagic species such as dolphin, tuna, and billfish in spawning SMZs.

This final rule implements a 10-year sunset provision for the establishment of the spawning SMZs, except for the Area 51 and Area 53 Spawning SMZs, which will remain in effect indefinitely. Therefore, except for Areas 51 and 53, the spawning SMZs and their associated management measures are effective for 10 years following the implementation of this final rule for Amendment 36. For the spawning SMZs and management measures subject to the sunset provision to extend beyond 10 years, the Council would need to take further action. The Council will regularly evaluate all of the spawning SMZs over the 10-year period.

This final rule moves the existing Charleston Deep Artificial Reef MPA 1.4 mi (2.3 km) northwest to match the boundary of the U.S. Army Corps of Engineers' permitted artificial reef area at that location. This final rule does not change the size of the existing MPA. The Council originally designated the current area as an artificial reef site in Amendment 14 to the FMP (74 FR 1621, January 13, 2009). The State of South Carolina has worked with the U.S. Army Corps of Engineers to modify the boundary of this site to include material recently sunk by the state in the area and requested that the Council shift their boundary of the existing Charleston Deep Artificial Reef MPA to match the new boundary of the U.S. Army Corps of Engineers' permitted artificial reef area.

In addition to the management measures that this final rule implements, Amendment 36 includes an action to modify the SMZ procedures in the FMP to allow for the designation of spawning SMZs. The Council will be able to designate important spawning areas as spawning SMZs to provide additional protection to some existing Essential Fish Habitat-Habitat Areas of Particular Concern for snapper-grouper species. The Council concluded that designating areas as spawning SMZs is important to protect snapper-grouper species and habitat where snapper-grouper species spawn. Additionally, the Council concluded that designating the spawning SMZ sites through this final rule, and subsequent changes to regulations, would enhance reproduction for snapper-grouper species and thus increase the number of eggs and larvae that are produced by the species.

NMFS received a total of 101 comments on the notice of availability and proposed rule for Amendment 36. The commenters included commercial, private recreational, and charter vessel fishing entities, as well as recreational divers, non-governmental organizations, and individuals from the general public. Comments both supported additional protections for spawning fish through implementation of spawning SMZs and opposed the implementation of any spatial closures in the South Atlantic. The majority of comments received from the public during the comment period were supportive of the actions in Amendment 36 to establish spawning SMZs to protect spawning snapper-grouper species. NMFS' responses to comments that specifically relate to the actions contained in Amendment 36 and the proposed rule are summarized below.

Comment 1: NMFS should not establish additional fishing area closures to protect spawning fish. The data used to determine potential spawning SMZ sites are flawed and the sites were arbitrarily selected. Additionally, the science does not support the use of MPAs or similarly named spatial closures as a viable management option.

Response: NMFS disagrees that the spawning SMZ sites were arbitrarily selected and that the data used are flawed. The Council used a variety of data sources to select spawning SMZ sites. Data sources included the Southeast Reef Fish Survey, habitat mapping research, and cooperative research projects that identified locations where snapper-grouper species occur, including spawning fish. In addition, multiple groups provided input on site selection to protect spawning fish while reducing social and economic impacts to fishermen. These groups included fishermen on the Council's MPA Expert Work Group and Snapper-Grouper Advisory Panel (Snapper-Grouper AP) who could be affected by the spawning SMZs. Finally, the Council evaluated comments and recommendations from the public during meetings such as public hearings and scoping meetings. The NMFS Southeast Fisheries Science Center reviewed the data and analyses contained in Amendment 36 and certified it to be based on the best scientific information available.

NMFS disagrees that spatial closures are not a viable management option for protecting spawning snapper-grouper species. Areas closed to protect known spawning locations of fish species have been shown to provide positive biological and socio-economic benefits. The spawning SMZs implemented by this final rule are expected to result in additional protections for spawning snapper-grouper, while potentially providing positive economic effects by increasing future stock size and sustainability. Should monitoring efforts highlight the need for the adjustment of an area or the removal of a spawning SMZ if spawning snapper-grouper species are not documented in the area, this final rule will allow the Council to modify spawning SMZs. If the Council does not take any subsequent action to modify or renew the spawning SMZs, most of the spawning SMZs would expire automatically after the 10-year sunset provision in this final rule.

Comment 2: NMFS is establishing spawning SMZs without any regard for the economic and social impacts on fishermen and coastal communities.

Response: NMFS disagrees. The Magnuson-Stevens Act requires NMFS to consider and analyze the economic and social impacts of proposed management actions. Amendment 36 and this final rule recognize that negative short-term economic effects resulting from restrictions in fishing opportunities in the designated spawning SMZs may occur. The spawning SMZs are small (combined total area is 17.71 square miles) relative to all available fishing grounds in the South Atlantic, and the total estimated economic loss of ex-vessel revenue for the entire commercial sector is $1,605 annually. NMFS assumes that any reduction in ex-vessel revenue from this final rule would be minimized based on the small size of each spawning SMZ area and the high likelihood that commercial vessels would substitute landings of snapper-grouper species in other areas. Also, the allowance for transit and trolling for pelagic species could reduce economic impacts from this final rule to fishermen.

Comment 3: The spawning SMZs should be closed to all fishing methods. Research has shown that snapper-grouper species, including warsaw grouper and speckled hind, can be harvested through the deployment of trolling gear. Allowing trolling of any kind could undermine the potential effectiveness of a spawning SMZ and would make enforcement of the provision that allows transiting with snapper-grouper species on board difficult.

Response: Amendment 36 and this final rule allow fishermen to troll for pelagic species in the spawning SMZs but do not allow fishing vessels to have snapper-grouper species on board. The final rule allows fishing vessels to possess snapper-grouper species on board while in a spawning SMZ only if the vessel is transiting through the spawning SMZ directly and without stopping, and if fishing gear is appropriately stowed and unavailable for immediate use (e.g., terminal gear, like hooks and weights, must be disconnected and stowed separately from a rod and reel). Therefore, law enforcement would be able to determine the difference between fishing vessels that are trolling for pelagic species and fishing vessels that are transiting the spawning SMZs with snapper-grouper species on board through visual inspection of the gear and the species on board. The trolling and transit allowances were discussed by the Council and included in Amendment 36 as a way to reduce the economic and social impacts of spatial closures on the fishing community and address concerns about safety at-sea, respectively.

Comment 4: Fishing for snapper-grouper species and anchoring in the spawning SMZs should be exempted for spear fishermen. Spear fishing is a selective gear type and large catches of snapper-grouper are not expected to occur through its use.

Response: In all of the spawning SMZs implemented by this final rule, the fishing for, harvest, or possession (except while transiting through a spawning SMZ) of snapper-grouper species is prohibited year-round. While NMFS agrees that spear fishing is a selective fishing gear with lower bycatch potential compared to other fishing methods, spear fishing could remove larger fish that are important to spawning. Prohibiting spear fishing in spawning SMZs is expected to provide protection to spawning snapper-grouper species to meet the objectives of Amendment 36.

Comment 5: Establishing Warsaw Hole as a spawning SMZ should be removed from consideration in Amendment 36. Fish caught in the Warsaw Hole and surrounding area (particularly greater amberjack) make up the majority of some fishermen's annual income in Key West, Florida, and fishing in the area results in little to no discards. Additionally, the majority of landings around Warsaw Hole occur north of 24°21′ N. lat., within the 1.8-square mile area included in another sub-alternative. However, if the Warsaw Hole Spawning SMZ must be established, the alternative consisting of a 0.9-square mile area is recommended over the preferred alternative of a 3.6-square mile area. The 0.9-square mile area would provide the least amount of negative economic impact to fishermen in Key West, Florida.

Response: The Council's objective for the protection of Warsaw Hole is to implement a spawning SMZ that would maximize the probability that snapper-grouper species, including warsaw grouper and greater amberjack, reform spawning aggregations at this site while balancing both short and long-term social and economic impacts to fishermen. To accomplish this objective, the Council determined the spawning SMZ should cover the shelf edge around the hole where greater amberjack spawn. After evaluating a spawning SMZ of different sizes around Warsaw Hole, the Council concluded that the 3.6-square mile area for the Warsaw Hole Spawning SMZ best meets this objective.

NMFS acknowledges that there may be short-term negative social and economic impacts from the spawning SMZ being implemented for Warsaw Hole. The Council considered these economic impacts but determined that the enhanced reproduction for snapper-grouper species and, subsequently, the increased the number of eggs and larvae that are produced as a result of this added protection, would be expected to result in long-term indirect economic benefits to commercial and recreational fishermen. In the end, the Council concluded that the 3.6-square mile area for the Warsaw Hole Spawning SMZ best meets the objectives of Amendment 36 by creating positive impacts, while balancing both short and long-term social and economic impacts.

Comment 6: The Council should adopt the 3.6-square mile area as a spawning SMZ for Warsaw Hole and the 13.3-square mile area as a spawning SMZ for Daytona Steeples. These two alternatives together would provide the greatest amount of protection to spawning snapper-grouper species off Florida.

Response: The Council selected the 3.6-square mile area around Warsaw Hole as the only spawning SMZ off Florida. Extensive input from the Council's Snapper-Grouper AP and the public indicated that there would be support for a spawning SMZ at Daytona Steeples if there were data on spawning snapper-grouper species or habitat in the area. The Council considered a spawning SMZ in the Daytona Steeples area but agreed with the Snapper-Grouper AP and public about the lack of available data on spawning snapper-grouper species or habitat and decided not to propose any spawning SMZ in the Daytona Steeples area.

Comment 7: The details in the system management plan (SMP) for the spawning SMZs, such as cost, monitoring, and evaluation techniques, should have been fully developed before the proposed sites in Amendment 36 were presented to the Council.

Response: The SMP for the spawning SMZs was developed in conjunction with Amendment 36 to outline the data and research needed to monitor and evaluate the spawning SMZs and guide researchers applying for project funding. The SMP outlines the estimated project costs for each study type to aid fishery managers in determining research priorities. The purpose of the SMP is not to outline the specific methods and costs. The Council acknowledged that the SMP will likely be modified over time as research projects are implemented. One of the primary tasks for the SMP was to recommend development of an advisory panel to the Council. The advisory panel would be used to further develop specific projects to monitor spawning SMZs.

The Regional Administrator for the NMFS Southeast Region has determined that this final rule is consistent with Amendment 36, the FMP, the Magnuson-Stevens Act, and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. Public comments relating to socio-economic implications and potential impacts on small businesses are addressed in the responses to Comments 2, 3, and 4 in the Comments and Responses section of this final rule. No comments were received regarding the certification and NMFS has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis was not required and none was prepared.

In this final rule, NMFS makes one change to the coordinates table for the Devil's Hole/Georgetown Hole Spawning SMZ. In the proposed rule, the coordinate points for this spawning SMZ were listed in a counter-clockwise order when plotted on a map or chart. The points for all other coordinate tables of the spawning SMZs in the proposed rule were listed in a clockwise order. This final rule revises the order of the coordinates for the Devil's Hole/Georgetown Hole Spawning SMZ to list them in a clockwise order, to be consistent with the other spawning SMZs in this final rule.

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

NMFS manages the Pacific sardine fishery in the U.S. EEZ off the Pacific coast (California, Oregon, and Washington) in accordance with the CPS FMP. Annual specifications published in the Federal Register establish the allowable harvest levels (i.e., overfishing limit (OFL)/ACL/HG) for each Pacific sardine fishing year. The purpose of this final rule is to implement these annual catch reference points for the 2017-2018 fishing year. This final rule adopts, without changes, the catch levels and restrictions that NMFS proposed in the rule published on May 30, 2017 (82 FR 24656), including the OFL and an acceptable biological catch (ABC) that takes into consideration uncertainty surrounding the current estimate of biomass for Pacific sardine in the U.S. EEZ off the Pacific coast.

The FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific sardine fishery based on the annual specification framework and control rules in the FMP. These control rules include the HG control rule, which, in conjunction with the OFL and ABC rules in the FMP, are used to manage harvest levels for Pacific sardine, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. According to the FMP, the quota for the principal commercial fishery is determined using the FMP-specified HG formula. The HG formula in the CPS FMP is HG = [(Biomass − CUTOFF) * FRACTION * DISTRIBUTION] with the parameters described as follows:

1. Biomass. The estimated stock biomass of Pacific sardine age one and above. For the 2017-2018 management season, this is 86,586 mt.

2. CUTOFF. This is the biomass level below which no HG is set. The FMP established this level at 150,000 mt.

3. DISTRIBUTION. The average portion of the Pacific sardine biomass estimated in the EEZ off the Pacific coast is 87 percent.

4. FRACTION. The temperature-varying harvest fraction is the percentage of the biomass above 150,000 mt that may be harvested.

As described above, the Pacific sardine HG control rule, the primary mechanism for setting the annual directed commercial fishery quota, includes a CUTOFF parameter, which has been set as a biomass level of 150,000 mt. This amount is subtracted from the annual biomass estimate before calculating the applicable HG for the fishing year. Since this year's biomass estimate is below that value, the formula results in an HG of zero, and no Pacific sardine are available for the primary commercial directed fishery during the 2017-2018 fishing season.

At the April 2017 Pacific Fishery Management Council (Council) meeting, the Council's Science and Statistical Committee (SSC) approved, and the Council adopted, the “Assessment of the Pacific Sardine Resource in 2017 for U.S. Management in 2017-2018,” which was prepared by NMFS Southwest Fisheries Science Center. The resulting Pacific sardine biomass estimate of 86,586 mt is the best available science for setting harvest specifications. Based on recommendations from its SSC and other advisory bodies, the Council recommended, and NMFS is implementing, an OFL of 16,957 mt, an ABC of 15,497 mt, and a prohibition on Pacific sardine catch, unless it is harvested as part of either the live bait or tribal fishery or incidental to other fisheries for the 2017-2018 Pacific sardine fishing year. As additional management measures, the Council also recommended, and NMFS is implementing through this action, an ACL of 8,000 mt and that the incidental catch of Pacific sardine in other CPS fisheries be managed with the following automatic inseason actions to reduce the potential for both targeting and discard of Pacific sardine:

• An incidental per landing by weight allowance of 40 percent Pacific sardine in non-treaty CPS fisheries until a total of 2,000 mt of Pacific sardine are landed.

• When 2,000 mt are landed, the incidental per landing allowance will be reduced to 20 percent until a total of 5,000 mt of Pacific sardine have been landed.

• When 5,000 mt have been landed, the incidental per landing allowance will be reduced to 10 percent for the remainder of the 2017-2018 fishing year.

Pacific sardine is known to comingle with other CPS stocks; thus, these incidental allowances are established to allow for the continued prosecution of these other important CPS fisheries and reduce the potential discard of sardine. Additionally, an incidental per landing allowance is allowed in non-CPS fisheries: Up to 2 mt may be landed per trip.

The NMFS West Coast Regional Administrator will publish a notice in the Federal Register announcing the date of attainment of any of the incidental catch levels described above and subsequent changes to allowable incidental catch percentages. Additionally, to ensure that the regulated community is informed of any closure, NMFS will also make announcements through other means available, including fax, email, and mail to fishermen, processors, and state fishery management agencies.

As explained in the proposed rule, the Quinault Indian Nation requested a set-aside for tribal harvest of 800 mt (the same amount that was requested and approved for 2016-2017). NMFS considered this request and, per this action, 800 mt of the 2017-2018 ACL are being set aside for tribal harvest.

Detailed information on the fishery and the stock assessment are found in the report “Assessment of the Pacific Sardine Resource in 2017 for U.S. Management in 2017-2018” (see FOR FURTHER INFORMATION CONTACT).

On May 30, 2017, NMFS published a proposed rule for this action and solicited public comments (82 FR 24656), with a public comment period that ended on June 14, 2017. NMFS received one comment letter—explained below—during the comment period. After consideration of the public comment, no changes were made from the proposed rule. For further background information on this action please refer to the preamble of the proposed rule. NMFS summarizes and responds below to the comment letter below.

Comment: The commenter expressed support for the prohibition on directed commercial sardine fishing, but opposition to the proposed ACL level, and requested that NMFS instead set an ACL of no more than 2,000 mt to be divided among the live bait and tribal sectors, and to accommodate limited bycatch. The commenter expressed an opinion that the proposed ACL of 8,000 mt is contrary to the purpose of the CUTOFF and that only minimal incidental catch (i.e., 2,000 mt) should be allowed to prevent further depletion and support sardine recovery.

In addition to commenting on the proposed rule, the bulk of the comment described various scientific papers and requested reconsideration of various aspects of sardine management including the Minimum Stock Size Threshold value as well as aspects of the harvest guideline control rule, including but not limited to the existing CUTOFF parameter and the DISTRIBUTION parameter. (These parameters, as well as other changes to the sardine harvest control rule and management are set in the CPS Plan and are beyond the scope of this rulemaking; therefore, they will not be addressed below.)

Response: NMFS disagrees that the ACL implemented in this rule is not in line with the FMP or that it fails to prevent overfishing or “is excessive and risks further depletion and delayed recovery”. The ACL should be viewed in the context of the OFL for the northern subpopulation of Pacific Sardine of 16,957 mt and an ABC of 15,497 mt that takes into account scientific uncertainty surrounding the OFL. These harvest reference limits were recommended by the Council based on the control rules in the FMP and were endorsed by the Council's SSC. The commenter does not question that the OFL and ABC levels reflect the best available science. By definition, harvest up to the level of OFL or ABC would not constitute overfishing, and would not drive the stock towards an overfished state. This rule takes a conservative approach by limiting harvest levels by all sources to an ACL of 8,000 mt, which is well below both the OFL and ABC. All incidental catch, live bait harvest and tribal harvest of sardine will be managed to stay at or below the ACL, employing multiple safeguards to ensure the ACL will not be exceeded. In short, the management measures implemented by this rule are more than adequate to prevent exceeding the OFL. Additionally, even in the absence of any fishing mortality, unfavorable environmental conditions could keep the sardine population at a low level. Small pelagic species, such as sardine, undergo wide natural fluctuations in abundance, even in the absence of fishing, from environmental conditions external to fishing; therefore, it is highly unlikely that reducing the ACL from 8,000 mt to 2,000 mt would measurably affect long-term fluctuations in Pacific sardine abundance. Based on the recent stock assessments and NMFS research, low recent recruitments (i.e., the number of young fish maturing into the spawning population) is the primary cause of the current downward trend in overall population size. Recruitment is believed to be strongly related to environmental conditions, particularly, large-scale oceanographic phenomena.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS West Coast Regional Administrator, with the concurrence of the Assistant Administrator, has determined that this final rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws.

NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the establishment of these final harvest specifications for the 2017-2018 Pacific sardine fishing season. In accordance with the FMP, this rule was recommended by the Council at its meeting in April 2017, the contents of which were based on the best available new scientific information on the population status of Pacific sardine that became available at that time. Making these final specifications effective on July 1, 2017, is necessary for the conservation and management of the Pacific sardine resource. The FMP requires a prohibition on directed fishing for Pacific sardine for the 2017-2018 fishing year because the sardine biomass is below the CUTOFF. The purpose of the CUTOFF in the FMP—and prohibiting directed fishing when the biomass drops below this level—is to protect the stock when biomass is low and provide a buffer of spawning stock that is protected from fishing and available for use in rebuilding the stock. A delay in the effectiveness of this rule for a full 30 days would not allow the implementation of this prohibition prior to the expiration of the closure of the directed fishery on July 1, 2017, which was imposed under the 2016-2017 annual specifications.

Delaying the effective date of this rule beyond July 1 would be contrary to the public interest because reducing Pacific sardine biomass beyond the limits set out in this action could decrease the sustainability of the Pacific sardine, as well as cause future harvest limits to be even lower under the harvest control rule, thereby reducing future profits of the fishery.

These final specifications are exempt from review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.

Through this action, NMFS is specifying an ACL of 306,000 lb of Deep 7 bottomfish in the MHI for the 2017-18 fishing year. The fishing year begins September 1, 2017, and ends on August 31, 2018. The Council recommended this ACL, based on the best available scientific, commercial, and other information, taking into account the associated risk of overfishing. The ACL of 306,000 lb for 2017-18 is 12,000 lb less than the ACL that NMFS specified for 2016-17 (82 FR 5429, January 18, 2017).

The MHI Management Subarea is the portion of U.S. Exclusive Economic Zone around the Hawaiian Archipelago east of 161°20′ W. The Deep 7 bottomfish are onaga (Etelis coruscans), ehu (E. carbunculus), gindai (Pristipomoides zonatus), kalekale (P. sieboldii), opakapaka (P. filamentosus), lehi (Aphareus rutilans), and hapuupuu (Hyporthodus quernus).

NMFS will monitor the fishery and, if we project that the fishery will reach the ACL before August 31, 2018, we would, as an AM authorized in 50 CFR 665.4(f), close the non-commercial and commercial fisheries for Deep 7 bottomfish in Federal waters through August 31, 2018. During a fishery closure for Deep 7 bottomfish, no person may fish for, possess, or sell any of these fish in the MHI Management Subarea. There is no prohibition on fishing for, possessing, or selling other (non-Deep 7) bottomfish during such a closure. All other management measures continue to apply in the MHI bottomfish fishery. If NMFS and the Council determine that the final 2017-18 Deep 7 bottomfish catch exceeds the ACL, NMFS would reduce the Deep 7 bottomfish ACL for 2018-19 by the amount of the overage.

You may review additional background information on this action in the preamble to the proposed specifications (82 FR 24092; May 25, 2017); we do not repeat that information here.

The comment period for the proposed specifications ended on June 9, 2017. NMFS did not receive any comments.

There are no changes in the final specifications from the proposed specifications.

The Regional Administrator, NMFS PIR, determined that this action is necessary for the conservation and management of MHI Deep 7 bottomfish, and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed specification stage that this action would not have a significant economic impact on a substantial number of small entities. NMFS published the factual basis for the certification in the proposed specifications, and does not repeat it here. NMFS did not receive comments regarding this certification. As a result, a final regulatory flexibility analysis is not required, and one was not prepared.

This action is exempt from review under Executive Order 12866.