Federal Register Vol. 82, No.145,

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class E airspace at Perry Lefors Field, Pampa, TX and Gaines County Airport, Seminole, TX to ensure the safety of IFR operations at these airports.

The FAA published in the Federal Register a notice of proposed rulemaking (NPRM) (82 FR 18406, April 19, 2017) Docket No. FAA-2017-0185 to modify Class E airspace extending upward from 700 feet above the surface at Perry Lefors Field, Pampa, TX and Gaines County Airport, Seminole, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface at Perry Lefors Field, Pampa, TX. Specifically, the action removed the segment 3 miles each side of the 354° bearing from the Pampa NDB extending from the 7.3-mile radius to 10.1 miles north of the airport, and reduces the Class E airspace extending upward from 700 feet above the surface at the airport from a 7.3-mile radius to a 6.4-mile radius.

This action also modifies Class E airspace extending upward from 700 feet above the surface at Gaines County Airport, Seminole, TX. by removing the segment 2.5 miles each side of the 189° bearing from the Gaines CO NDB extending from the 6.7-mile radius to 7.7 miles south of the airport.

Airspace reconfiguration is necessary due to the decommissioning of the Pampa (NDB), and Gaines County NDB and cancellation of NDB approaches, and implementation of area navigation (RNAV) procedures at these airports. Controlled airspace is necessary for the safety and management of the standard instrument approach procedures for IFR operations at the airports.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the surface at Dixon Airport, Dixon, WY, to support the implementation of new RNAV (GPS) standard instrument approach procedures for instrument flight rules (IFR) operations at the airport.

On June 2, 2017, the FAA published a notice of proposed rulemaking in the Federal Register (82 FR 25563) Docket No. FAA-2017-0315, to establish Class E airspace extending upward from 700 feet above the surface at Dixon Airport, Dixon, WY. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface at Dixon Airport, Dixon, WY. Controlled airspace is established within a 7-mile radius of Dixon Airport with a segment 8 miles wide (4 miles each side of a 045° bearing from the airport) extending to 15.5 miles northeast of the airport to support new RNAV (GPS) instrument approach procedures for IFR operations at the airport. This action ensures the safety and management of aircraft within the national airspace system as we transition from ground-based navigation aids to a satellite-based Global Navigation Satellite System.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

NASA has determined this rulemaking meets the criteria for a direct final rule because it makes nonsubstantive changes to correct citations and office titles. No opposition to the changes and no significant adverse comments are expected. However, if the Agency receives a significant adverse comment, it will withdraw this direct final rule by publishing a notice in the Federal Register. A significant adverse comment is one that explains: (1) Why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this direct final rule, NASA will consider whether it warrants a substantive response in a notice and comment process.

The National Aeronautics and Space Act (the Space Act), 51 U.S.C. 20113(a), authorizes the Administrator of NASA to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of its operations and the exercise of the powers vested in it by law.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated as “not significant.”

E.O. 13132, “Federalism,” 64 FR 43255 (August 4, 1999) requires regulations be reviewed for Federalism effects on the institutional interest of states and local governments, and if the effects are sufficiently substantial, preparation of the Federal assessment is required to assist senior policy makers. The amendments will not have any substantial direct effects on state and local governments within the meaning of the E.O. Therefore, no Federalism assessment is required.

This final rule does not contain an information collection requirement that is subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to prepare an initial regulatory flexibility analysis to be published at the time the proposed rule is published. This requirement does not apply if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities” (5 U.S.C. 603). This rule makes corrections to citations and titles of NASA officials; therefore, it does not have a significant economic impact on a substantial number of small entities.

Accordingly, under the authority of the National Aeronautics and Space Act, as amended, NASA amends part 1259 as follows:

Union Pacific Railroad has requested a temporary change to the operation of the Union Pacific Railroad Bridge, mile 7.0, over the Carquinez Strait, at Martinez, CA. The drawbridge navigation span provides a vertical clearance of 70 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.5. Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position from 10 a.m. to 4 p.m. on August 1, 2017, to allow the bridge owner to conduct emergency repairs. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass. 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 the safety zone for the annual Point to LaPointe Swim in 33 CFR 165.943(a)(7) from 7 a.m. through 10:30 a.m. on July 29, 2017, on all waters between Bayfield, WI and Madeline Island, WI within an imaginary line created by the following coordinates: 46°48′50.97″ N., 090°48′44.28″ W., moving southeast to 46°46′44.90″ N., 090°47′33.21″ W., then moving northeast to 46°46′52.51″ N. 090°47′17.14″ W., then moving northwest to 46°49′03.23″ N. 090°48′25.12″ W. and finally running back to the starting point.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or her designated on-scene representative. The Captain of the Port's designated on-scene representative may be contacted via VHF Channel 16 or via telephone at (715) 779-5100. This notice of enforcement is issued under authority of 33 CFR 165.943 and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Coast Guard will provide the maritime community with advance notification of the enforcement of this safety zone via Broadcast Notice to Mariners. The Captain of the Port Duluth or her on-scene representative may be contacted via VHF Channel 16 or via telephone at (715) 779-5100.

On February 27, 2017, we published a document in the Federal Register (82 FR 11870) proposing an extension of the project period and waiver of 34 CFR 75.250 and 75.261(a) and (c)(2) for the Center (the waiver and extension) in order to:

(1) Enable the Secretary to provide additional funds to the currently funded Center for an additional 12-month period; and

(2) Invite comments on the proposed extension of project period and waiver.

There are no substantive differences between the proposed waiver and extension and this final waiver and extension.

Eight commenters responded to our invitation to comment in the proposed waiver and extension. Seven of the eight supported the proposed waiver and extension. One expressed concern regarding the proposed extension.

Comment: Seven of the eight commenters provided favorable and supportive comments regarding the proposed waiver and extension.

Discussion: We thank these commenters for their support.

Changes: None.

Comment: One commenter requested information on the cost of the current grant.

Discussion: Beginning in December 2012, SRI International, the current grantee, has received approximately $6.5 million annually to run the Center. The waiver and extension will allow for an additional year of funding at the same level.

Changes: None.

Comment: The same commenter expressed concern that this one-year extension would not secure future funding for the Center or these efforts and would prove harmful to children with disabilities.

Discussion: We appreciate the commenter's concern for the long-term future of this important work. The extension would ensure continuity of valuable technical assistance (TA) services in critically needed areas, which will benefit States as they provide early intervention and special education services to children with disabilities. We agree that recompeting this investment in FY 2017 would likely provide additional clarity around funding priorities in future years. However, the Department is taking this action to ensure efficient and effective coordination of data TA by aligning the funding cycle for two large data TA centers. We believe such an approach is in the best interests of both States and the children with disabilities they serve.

Changes: None.

Comment: None.

Discussion: We misstated the dates of the extended project period in the proposed extension and waiver (October 1, 2017 through September 30, 2018). We have changed the dates to align with the period of the current grant (December 1, 2017 through November 30, 2018).

Changes: We have changed the dates of the project period for this extension to December 1, 2017, through November 30, 2018.

In the proposed waiver and extension, we discuss the background and purposes of the Center and our reasons for proposing the waiver and extension.

For these reasons, the Secretary waives the requirements in 34 CFR 75.250, which prohibit project periods exceeding five years, as well as the requirements in 34 CFR 75.261(a) and (c)(2), which allow the extension of a project period only if the extension does not involve the obligation of additional Federal funds. The waiver allows the Department to issue a one-time FY 2017 continuation award of $6,500,000 to the Center originally funded in FY 2012.

Any activities carried out during the year of this continuation award must be consistent with, or a logical extension of, the scope, goals, and objectives of the grantee's application as approved in the 2012 competition. The requirements for continuation awards are set forth in the document inviting applications published in the Federal Register on February 27, 2017 (82 FR 11870) for a new award for FY 2012 and in 34 CFR 75.253.

The Administrative Procedure Act requires that a substantive rule must be published at least 30 days before its effective date, except as otherwise provided for good cause (5 U.S.C. 553(d)(3)). All but one of the comments we received supported the proposed waiver and extension, and we have not made any substantive changes to the proposed waiver and extension. Therefore, the Secretary waives the delayed effective date to ensure there is no lapse in the TA services currently provided by the Center.

The Secretary certifies that this final waiver and extension of the project period will not have a significant economic impact on a substantial number of small entities.

The only entities that will be affected are the current grantee receiving Federal funds and any other potential applicants.

The Secretary certifies that this waiver and final extension will not have a significant economic impact on these entities because the extension of existing project periods imposes minimal compliance costs, and the activities required to support the additional year of funding will not impose additional regulatory burdens or require unnecessary Federal supervision.

This final waiver and extension of the project period does not contain any information collection requirements.

This program is subject to 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 our specific plans and actions for this program.

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 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.

As noted above, these regulations are effective on July 31, 2017. However, for grant award competitions announced by the Department in the Federal Register prior to the effective date of these regulations, unless the notice specifies otherwise, the provisions of 34 CFR parts 75 and 77 revised or removed through this notice of final regulations continue to apply to competitions and grants awarded under those notices inviting applications.

These regulations do not establish substantive policy changes, but instead make technical changes to existing regulations. Since these regulations make only technical changes, a comment period is not required. However, we are interested in whether you think we should make any changes in these regulations and thus we are inviting your comments. We will consider these comments in determining whether to make further technical changes to the regulations or engage in additional rulemaking. To ensure that your comments have maximum effect, we urge you to identify clearly the specific section or sections of the regulations that each of your comments addresses and to arrange your comments in the same order as the regulations. See ADDRESSES for instructions on how to submit comments.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirements of reducing regulatory burden that might result from these regulations. Please let us know of any additional ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.

During and after the comment period, you may inspect all public comments about these regulations by accessing Regulations.gov. You may also inspect the comments in person in Room 6W245, 400 Maryland Avenue SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays. If you want to schedule time to inspect comments, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Background: The regulations in subpart D of 34 CFR part 75 set forth the general requirements that govern the Department's selection of grantees for direct grant awards. For those direct grant programs that make discretionary grant awards, the Secretary uses selection criteria to evaluate applications submitted under those programs. The regulations establish a menu of selection criteria that the Secretary may use in any Department discretionary grant competition.

Current Regulations: Current § 75.210(c) lists 29 factors under the “Quality of the Project Design” selection criterion. Section 75.210(h) includes 12 factors under the “Quality of the Project Evaluation” selection criterion.

Final Regulations and Reasons: We make the following changes to the selection criteria in § 75.210(c) and (h):

(1) Add one selection factor under the “Quality of the Project Design” criterion (§ 75.210(c)) to clarify that the Department may assess the extent to which an applicant's proposed project would represent a faithful adaptation of the evidence cited in support of its project. This factor is designed to assess whether projects would in fact implement the evidence cited as support, such that the project is “evidence-based” as described in section 8101(21)(A) of the Elementary and Secondary Education Act (ESEA), as amended by the Every Student Succeeds Act (ESSA).

(2) For clarification, add two selection factors under the “Quality of the Project Evaluation” criterion (§ 75.210(h)) focused on (a) the qualifications of an applicant's evaluator; and (b) the sufficiency of resources to carry out the project evaluation.

We also revise two factors under the “Quality of the Project Design” criterion (§ 75.210(c)) and four factors under the “Quality of the Project Evaluation” criterion (§ 75.210(h)) to align terminology with the revised evidence definitions in 34 CFR part 77. Specifically, the regulations:

(1) Replace references to “evidence of promise” and “strong theory” with “promising evidence” and “demonstrates a rationale,” respectively.

(2) Align terminology with the revised definitions in 34 CFR 77.1(c) to include the term “project component” and clarify that the What Works Clearinghouse standards are described in the What Works Clearinghouse Handbook.

We are making these revisions to improve the menu of selection criteria and factors by better aligning them to the evidence-related definitions in 34 CFR part 77. We make these revisions in conjunction with the amendments to the definitions in 34 CFR part 77, which, as discussed elsewhere in this document, we also revise to align with the evidence provisions in section 8101(21) of the ESEA, as amended by the ESSA, and for clarity. The final regulations do not change the way the Secretary uses the current and new selection criteria and factors. The Secretary will continue to use selection criteria that are consistent with the purpose of the program and permitted under the applicable statutes and regulations.

§ 75.226 What procedures does the Secretary use if the Secretary decides to give special consideration to applications supported by strong evidence of effectiveness, moderate evidence of effectiveness, or evidence of promise?

Current Regulations: Under § 75.226, the Secretary may establish a competitive preference or absolute priority for projects supported by strong evidence of effectiveness, moderate evidence of effectiveness, or evidence of promise, as those terms are currently defined in 34 CFR part 77.

Final Regulations and Reasons: The Secretary makes technical revisions to the title and text of this section to describe procedures for giving special consideration to applications supported by strong, moderate, or promising evidence, which are the evidence-related terms used in the ESEA. We include definitions for these terms elsewhere in this document.

These technical changes ensure that discretionary grant programs authorized by the ESEA, as amended by the ESSA, can establish evidence-based priorities under § 75.226 and allow the Department the option to use one set of uniform evidence standards for all discretionary grant programs across each program's authorizing statute.

Background: Section 77.1(c) establishes definitions that, unless a statute or regulation provides otherwise, apply to the regulations in title 34 of the Code of Federal Regulations and can be used in Department grant competitions. This section includes a number of definitions that support the Department's use of evidence in grant competitions. The ESSA amended the ESEA to include a new definition of “evidence-based” that necessitates changes to these definitions.

Current Regulations: Section 77.1(c) establishes definitions that, unless a statute or regulation provides otherwise, apply to the regulations in title 34 of the Code of Federal Regulations and can be used in Department grant competitions.

Final Regulations and Reasons: We establish new, and revise some existing, definitions to (1) ensure alignment with provision in the ESEA, as amended by the ESSA, providing a single set of evidence definitions; and (2) make minor clarifying revisions to existing provisions. In these final regulations, we:

(1) Add a definition of “evidence-based” that incorporates the four levels of evidence in section 8101(21)(A) of the ESEA, as amended by the ESSA.

(2) Add a definition for “project component” as a single, clarifying term for what may be included in a project. The term clarifies that “policy” may be one component of a project; encompasses “an activity, strategy, or intervention,” to be consistent with the definition of “evidence-based” in section 8101(21) of the ESEA, as amended by the ESSA; and includes “process,” “product,” and “practice,” which were in the evidence definitions in 34 CFR 77.1(c) (e.g., strong evidence of effectiveness) prior to these final regulations.

(3) Remove the definitions of “large sample” and “multi-site sample” and instead incorporate them into the new “moderate evidence” and “strong evidence” definitions, to streamline these definitions.

(4) Replace the term “strong theory” with the term “demonstrates a rationale,” as this is the fourth level of evidence in the definition of “evidence-based” in section 8101(21) of the ESEA, as amended by the ESSA.

(5) Replace the term “evidence of promise” with the term “promising evidence,” to align with the definition of “evidence-based” in section 8101(21) of the ESEA, as amended by the ESSA. In the definition of “promising evidence,” we clarify—

• How practice guides and intervention reports prepared by the What Works Clearinghouse (WWC), in alignment with the WWC standards incorporated in the definition, can provide promising evidence;

• How the Department already reviews single studies to determine whether they qualify under this level of evidence; and

• That certain quasi-experimental studies and experimental studies that do not meet WWC standards can qualify as promising evidence, as the previous “evidence of promise” definition implied.

• That correlational studies with statistical controls for selection bias must be well-designed and well-implemented to qualify as promising evidence, as the ESEA, as amended by the ESSA, provides.

(6) Replace the term “moderate evidence of effectiveness” with the term “moderate evidence,” which is used in the ESEA definition of “evidence-based.” In the definition of “moderate evidence,” we clarify—

• How practice guides and intervention reports prepared by the WWC, in alignment with the WWC standards incorporated in the definition, can provide moderate evidence;

• How the Department already reviews single studies to determine whether they qualify under this level of evidence; and

• Through language regarding “relevant findings,” that there must be a link between the proposed activities, strategies, and interventions and specific statistically significant effects, as required under the definition of “evidence-based” in section 8101(21) of the ESEA, as amended by the ESSA.

(7) Replace the term “randomized controlled trial” with the term “experimental study,” to align with the definition of “evidence-based,” in section 8101(21) specifically with regard to “strong evidence.” In this new definition of “strong evidence,” we clarify the types of studies that can qualify as experimental studies—including, but not limited to, randomized controlled trials—as provided in the applicable WWC Handbook.

(8) Replace the term “strong evidence of effectiveness” with the term “strong evidence,” which is used in the definition of “evidence-based” in section 8101(21) of the ESEA, as amended by the ESSA. In the definition of “strong evidence,” we clarify—

• How practice guides and intervention reports prepared by the WWC, in alignment with the WWC standards incorporated in the definition, can provide promising evidence under the definition of “evidence-based” in section 8101(21) of the ESEA, as amended by the ESSA;

• How the Department already reviews single studies to determine whether they qualify under this level of evidence; and

• Through language regarding “relevant findings,” that there must be a link between the proposed activities, strategies, and interventions and specific statistically significant effects, as required under the definition of “evidence-based” in section 8101(21) of the ESEA, as amended by the ESSA.

(9) Replace the term “What Works Clearinghouse Evidence Standards” with the term “What Works Clearinghouse Handbook,” to clarify that the Handbook's procedures—not just standards—are relevant to evidence determinations, consistent with current practice. We also incorporate this Handbook, which provides a detailed description of the standards and procedures of the WWC, by reference. The WWC is an initiative of the U.S. Department of Education's National Center for Education Evaluation and Regional Assistance, within the Institute of Education Sciences (IES), which was established under the Education Sciences Reform Act of 2002. The WWC is an important part of IES's strategy to use rigorous and relevant research, evaluation, and statistics to inform decisions in the field of education. The WWC provides critical assessments of scientific evidence on the effectiveness of education programs, policies, products, and practices (referred to as “interventions”) and a range of publications and tools summarizing this evidence. The WWC meets the need for credible, succinct information by reviewing research studies; assessing the quality of the research; summarizing the evidence of the effectiveness of programs, policies, products, and practices on student outcomes and other outcomes related to education; and disseminating its findings broadly. This Handbook is available to interested parties at the Web site address included in the regulation (https://ies.ed.gov/ncee/wwc/Handbooks).

(10) Make minor clarifying changes to the definition of “logic model” so it is more easily understood.

(11) Make minor clarifying changes to the definition of “quasi-experimental design study” to align with terminology in the revised § 77.1(c).

(12) Make minor clarifying changes to the definition of “relevant outcome” to align with terminology in the revised § 77.1(c).

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, these regulations make technical changes only and do not establish substantive policy. The regulations are therefore exempt from notice and comment rulemaking under 5 U.S.C. 553(b)(3)(B). However, the Department is providing a 30-day comment period and invites interested persons to participate in this rulemaking by submitting written comments. The Department will consider the comments received and may conduct additional rulemaking based on the comments.

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 are merely technical, there is good cause to make them effective on the day they are published.

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 subject to 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 on 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 on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on an analysis of anticipated costs and benefits, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does 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 would not impose additional costs. We believe any additional costs imposed 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 making necessary clarifications and ensuring consistency among the Education Department General Administrative Regulations and section 8101(21) of ESEA, as amended by the ESSA.

Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make these regulations easier to understand, including answers to questions such as the following:

• Are the requirements in the regulations clearly stated?

• Do the regulations contain technical terms or other wording that interferes with their clarity?

• Does the format of the regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Would the regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, § 75.210.)

• Could the description of the regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the regulations easier to understand? If so, how?

• What else could we do to make the regulations easier to understand?

To send any comments that concern how the Department could make these regulations easier to understand, see the instructions in the ADDRESSES section.

The Secretary certifies that these regulations do not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act of 1995 does not require you to respond to a collection of information unless it displays a valid OMB control number. We display the valid OMB control number assigned to a collection of information in final regulations at the end of the affected section of the regulations.

This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

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 75 and 77 of title 34 of the Code of Federal Regulations as follows:

VA is correcting its final rule that added to its medical regulations new standards that must be met by a Community Residential Care facility seeking approval by VA.

In FR Doc. 17-15519 appearing on page 34408 in the Federal Register of Tuesday, July 25, 2017, the following corrections are made:

Regional haze is impairment of visual range or colorization caused by air pollution, principally by fine particulate matter (PM2.5), produced by numerous sources and activities, located across a broad regional area. The sources include, but are not limited to, major and minor stationary sources, mobile sources, and area sources including non-anthropogenic sources. These sources and activities may emit PM2.5 (e.g. sulfates, nitrates, organic carbon, elemental carbon, and soil dust), and their precursors (e.g. SO2, NOX, and in some cases, ammonia and volatile organic compounds). PM2.5 can also cause serious health effects and mortality in humans, and contributes to environmental effects such as acid deposition and eutrophication.

In the CAA Amendments of 1977, Congress established a program to protect and improve visibility in the Nation's national parks and wilderness areas. See CAA section 169A. Congress amended the visibility provisions in the CAA in 1990 to focus attention on the problem of regional haze. See CAA section 169B. EPA promulgated regional haze regulations (RHR) in 1999 to implement sections 169A and 169B of the CAA. These regulations require states to develop and implement plans to ensure reasonable progress towards improving visibility in mandatory Class I Federal areas.1 See 64 FR 35714 (July 1, 1999); see also 70 FR 39104 (July 6, 2005) and 71 FR 60612 (October 13, 2006).

The RHR requires each state's regional haze implementation plan to contain emission limitations representing best available retrofit technology (BART) and schedules for compliance with BART for each source subject to BART, unless the state demonstrates that an emissions trading program or other alternative measure will achieve greater reasonable progress toward natural visibility conditions. The requirements for alternative measures are established at 40 CFR 51.308(e)(2).

In addition to demonstrating greater reasonable progress towards improving visibility, among other things, the RHR also requires that all necessary emission reductions from a BART alternative take place during the period of the first long-term strategy for regional haze (i.e., 2008-2018) and requires a demonstration that the emission reductions from the alternative measure will be surplus to the reductions from measures adopted to meet CAA requirements as of the baseline date of the SIP. 40 CFR 51.308(e)(2). The baseline date for regional haze SIPs is 2002. See Memorandum from Lydia Wegman and Peter Tsirigotis, 2002 Base Year Emission Inventory SIP Planning: 8-Hr Ozone, PM2.5, and Regional Haze Programs, November 8, 2002. http://www.epa.gov/ttn/oarpg/t1/memoranda/2002bye-gm.pdf. See 79 FR 56322, 56328-29 (September 19, 2014) (proposing approval of alternative BART for Arizona SIP).

Maryland's regional haze SIP was submitted by the Maryland Department of the Environment (MDE) on February 13, 2012 and approved by EPA in June 2012. See 77 FR 39938 (June 13, 2012). This regional haze SIP included, among other measures, BART emission limits for power boiler 25 at the Verso Luke Paper Mill because power boiler 25 was a BART subject source. The BART emission limits which EPA had approved in June 2012 for power boiler 25 were 0.44 pounds per million British thermal units (lb/MMBtu) for SO2, a 30-day rolling limit of 0.40 lb/MMBtu for NOX, and 0.07 lb/MMBtu for particulate matter (PM).2

On May 30, 2017 (82 FR 24614), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed approval of the BART alternative measure for the Verso Luke Paper Mill. No comments were received in response to EPA's proposed rulemaking notice. The formal SIP revision (#16-14) was submitted by the State of Maryland on November 28, 2016.

The SIP revision seeks to revise the BART strategy for the Verso Luke Paper Mill, specifically the emission limits for power boiler 25 for SO2 and NOX. MDE states that Verso Luke Paper Mill is eliminating the use of coal as a source of fuel used in power boiler 24 and replacing it with natural gas. MDE's SIP revision submittal seeks alternative BART emission limits for SO2 and NOX for power boiler 24, and seeks to remove the previously approved BART requirements for SO2 and NOX from power boiler 25 and replace them with new, alternative emission requirements. Specifically, for power boiler 24 at the Mill, Maryland's SIP revision seeks to establish (1) a new BART emission limit of 0.28 lb/MMBtu, measured as an hourly average for SO2; (2) a new BART emission limit of 0.4 lb/MMBtu, measured on a 30-day rolling average for NOX; and (3) associated monitoring, recordkeeping and reporting requirements. For power boiler 25, this SIP revision seeks to: (1) Remove the SO2 BART emission limit approved by EPA in June 2012 and seeks to establish an annual SO2 cap of 9,876 tons measured on a 12-month rolling average; (2) remove the NOX BART emission limit but retain existing requirements under COMAR 26.11.14.07 applicable to the power boiler; and (3) impose associated monitoring, recordkeeping, and reporting requirements. The BART requirements for PM approved by EPA in June 2012 on power boiler 25 would remain unchanged.

MDE's analysis demonstrates that the alternative SO2 BART measure (i.e. new SO2 emission limit on power boiler 24; removal of approved SO2 BART limit and new annual SO2 cap on power boiler 25) would provide an additional 2,055 tpy in SO2 emissions reductions (or 20% more emission reductions) than the tons per year to be reduced by the currently approved BART requirements on power boiler 25. MDE's analysis also shows that the alternative NOX BART measure on power boiler 24 (with removed BART limit on power boiler 25) would provide an additional 804 tpy in NOX emission reductions than the currently approved BART requirements on power boiler 25. Finally, MDE's analysis shows that the alternative NOX BART measure on power boiler 24 would provide a 227 tons per ozone season NOX benefit than would the currently approved BART requirements on power boiler 25.

Thus, with the additional SO2 and NOX emission reductions per year, EPA finds that the alternative SO2 and NOX BART emission limits on power boiler 24 (with the SO2 tpy cap on power boiler 25) will provide for greater reasonable progress toward achieving natural visibility conditions than would be achieved through the currently approved BART emission limits on power boiler 25. EPA also finds the emission reductions from the new limits on power boiler 24 (and SO2 tpy cap on power boiler 25) have been implemented before the end of the first regional haze planning period (i.e. 2018). In addition, the emission reductions from the proposed BART emission limits for power boiler 24 for SO2 and NOX are surplus to reductions resulting from CAA requirements as of the baseline date of the SIP or 2002. More information on Maryland's SIP submittal and on EPA's analysis of emission reductions from the alternative BART measure (including discussion of the reductions as implemented and surplus) is provided in the Technical Support Document (TSD) which is available online at www.regulations.gov for this rulemaking. Therefore, EPA finds Maryland's SIP revision for the alternative BART emission limits for SO2 and NOX for power boiler 24 (and SO2 cap on power boiler 25) meet the requirements for an alternative BART measure in accordance with CAA section 169A and as established at 40 CFR 51.308(e)(2) in the RHR.

In addition, EPA finds that this SIP revision, which seeks to remove BART SO2 and NOX emission limits for power boiler 25 from the approved Maryland regional haze SIP, meets the requirements of CAA section 110(l) and will not interfere with attainment and maintenance of any NAAQS, reasonable further progress or any other applicable CAA requirement. EPA finds that Maryland has demonstrated that additional SO2 and NOX emission reductions will be achieved each year with the alternative BART emission limits on power boiler 24 and SO2 tpy cap on power boiler 25, and as such, no interference with reasonable further progress or any NAAQS is expected. As discussed previously, the alternative BART emission limits on power boiler 24 meet other CAA requirements in section 169A and 40 CFR 51.308(e)(2). Other specific requirements and the rationale for EPA's proposed action are explained in the NPR as well as the technical support document (TSD) under Docket ID No. EPA-R03-OAR-2016-0783, available online at www.regulations.gov, and will not be restated here. No public comments were received on the NPR.

EPA has reviewed Maryland's SIP revision seeking an alternative BART measure and emission limits for power boiler 24 (and SO2 tpy cap on power boiler 25) compared to EPA's previously federally enforceable BART limits for SO2 and NOX on power boiler 25. EPA finds that the alternative BART measure for Verso Luke Paper Mill with SO2 and NOX limits as alternative BART on power boiler 24 will result in greater emission reductions in SO2 and NOX from the facility and provide greater reasonable progress and greater visibility improvement than the currently approved BART measure which applies solely to power boiler 25. Specifically, the conversion of power boiler 24 from a coal-burning boiler to a natural gas power boiler with new emission limits contained within a federally enforceable permit is expected to result in fewer SO2 and NOX emissions from the Mill. MDE's analysis shows that in comparison to the currently approved BART requirements on power boiler 25, the alternative BART measure on power boiler 24 of 0.28 lb/MMBtu, measured as an hourly average for SO2 and 0.4 lb/MMBtu, measured on a 30-day rolling average for NOX with the 9,876 SO2 cap on power boiler 25, would provide (1) an additional 2,055 tpy in SO2 emissions reductions; (2) an additional 804 tpy in NOX emission reductions; and (3) a 227 tons per ozone season NOX benefit. In addition, EPA finds that the alternative BART emission limits will result in reductions surplus to CAA requirements as of 2002 and will be implemented prior to the end of 2018. EPA is approving the November 28, 2016 SIP submittal as it meets the requirements in CAA section 169A and in 40 CFR 51.308(e)(2). EPA is also incorporating by reference the permit requirements for power boilers 24 and 25 issued August 17, 2016 for the Mill, which include alternative emission requirements, as well as monitoring, recordkeeping and reporting requirements.

EPA also finds that this SIP revision meets the requirements of CAA section 110(l) and will not interfere with attainment and maintenance of any NAAQS, reasonable further progress or any other applicable CAA requirement. Therefore, EPA is approving Maryland's November 28, 2016 SIP revision submittal as it meets CAA requirements.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 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. This action pertaining to alternative BART emission limits for Verso Luke Paper Mill may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

On April 6, 2017 (82 FR 16772), EPA published a Notice of Proposed Rulemaking (NPR) for the State of Connecticut. The NPR proposed approval of a demonstration that Connecticut meets the RACT requirements for NOX and VOCs, set forth by the Clean Air Act with respect to the 2008 ozone standard. Additionally, Connecticut also submitted to EPA and we proposed approval of portions of a revised regulation limiting NOX emissions from municipal waste combustors (MWCs), a regulation limiting NOX emissions from major sources of air emissions, and a regulation limiting emissions from non-major sources of NOX emissions. The State submitted its RACT demonstration on July 18, 2014, the revised MWC regulation on September 16, 2016, and the regulations limiting NOX emissions from major and non-major sources on January 24, 2017. By letter dated March 31, 2017, Connecticut withdrew a number of provisions from these submittals that do not pertain to NOX or VOC control requirements, and therefore are not germane to this action.

The specific details of Connecticut's RACT certification for the 2008 ozone NAAQS and its three NOX regulations, as well as the rationale for our proposed approval are explained in the NPR and will not be restated here. We received a total of six public comments in response to the NPR. One public comment was in favor of our proposal and the others either were irrelevant to our proposed action and/or lacked sufficient specificity with respect to the SIP action being proposed, failing to articulate what the commenter believed EPA should do to change or revise its proposed approval. All of the comments received are included in the docket for today's action.

EPA is approving Connecticut's demonstration that it meets the CAA RACT requirements for NOX and VOCs for purposes of the 2008 ozone standard, and is also approving portions of a revised regulation limiting NOX emissions from MWCs, and regulations limiting NOX emissions from major and minor sources of air emissions, as revisions to the Connecticut SIP. Additionally, we are approving a number of minor edits made to existing parts of Connecticut's air pollution control regulations that were updated to make citations correctly reference the State's newly adopted regulations. Last, we are approving a number of negative declarations for Control Technique Guidelines categories for which Connecticut asserts no facilities exist within its borders.

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 sections of the State of Connecticut Regulation of Department of Energy and Environmental Protection noted in this final rulemaking. The EPA has made, and will continue to make, these documents generally available through http://www.regulations.gov.

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, 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 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 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. 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 September 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. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

Under the Northeast Multispecies Fishery Management Plan (FMP), sub-annual catch limits (sub-ACL) for the recreational fishery are established for each fishing year for Gulf of Maine (GOM) cod and haddock. The regulations at 50 CFR 648.89(f)(3) authorize the Regional Administrator, in consultation with the New England Fishery Management Council (NEFMC), to modify the recreational management measures for the upcoming fishing year to ensure that the recreational fishery achieves, but does not exceed, the recreational fishery sub-ACLs. The proposed rule for this action (82 FR 24086; May 25, 2017) provides details on the consultation with the NEFMC and how the NEFMC developed its recommendations; that information is not repeated here.

Because of repeated recreational fishery sub-ACL overages (haddock the last five years and cod three of five years) and the model's prediction that the NEFMC's recommended measures have only a 50-percent probability of keeping haddock catch below the sub-ACL, we considered whether it may be prudent to implement a more conservative fall closure that would likely have a higher probability of constraining haddock catch to the sub-ACLs. There are four primary reasons that the Council's proposed measures would sufficiently constrain catch to the sub-ACL's and were more consistent with the FMPs goals and objectives than the closed area measure we presented: (1) The Council's measures include a new fall closed season, cod prohibition, and a more conservative haddock bag limit; (2) improved information used in the bioeconomic model this year provides greater confidence in its predictions compared to previous years; (3) the interactions between GOM cod and haddock and the status of each of these stocks; and (4) newly available commercial catch data show a strong likelihood that overall GOM haddock catch will be under the total ACL for 2016 and, that the recreational sub-ACL and AM system combined with the overall ACL is effectively constraining catch.

We presented a more conservative closure season for comments to closely consider whether the Council's proposed accountability measures would sufficiently account for management uncertainty, prevent GOM cod and haddock catch overages, and provide an opportunity for the fishery to attain its allowable catch. We have determined that the more conservative measure is not necessary. The measures proposed by the Council are more conservative than the 2016 management measures. The possession of cod is being prohibited, the haddock bag-limit has been reduced, and a new fall closure is being implemented. We expect that these measures will allow the recreational fishery to achieve, but not exceed their sub-ACLs.

We also considered the improved performance of the model. The model projects recreational catch using economic information from an angler choice experiment survey and biological information about the current stock structure for the GOM cod and haddock stocks with historical catchability data from recreational anglers. Recent modifications to the model, including the incorporation of new data, improved its ability to accurately estimate recreational catches, and thus increases our confidence in the management measures based on its output. Specifically, the model now includes data from 2015, when cod possession was prohibited for the first time, and as a result, the model is better able to estimate the impact of prohibiting cod on the number of angler trips and catch of cod and haddock. While we have relied on the model using similar buffers in the past, the model is now improved, providing greater confidence in the outputs.

When evaluating the merit of each fall closure option, we considered the impacts on both haddock and cod. GOM cod is overfished and overfishing is occurring, but GOM haddock is a healthy stock. The more conservative closed area we sought comments on is estimated to have an increased probability of constraining GOM haddock catch to the sub-ACL (70 percent), but is projected to result in slightly increased GOM cod catch. Given the poor status of GOM cod, an option that is projected to increase GOM cod catch is a concern. We determined that the risk associated with increasing GOM cod catch outweighed the potential benefits of a slightly higher probability of limiting GOM haddock catch to the sub-ACL especially given the model improvements.

Last, newly available commercial catch data for 2016 show that overall catch is being effectively constrained. The newly available data shows that that the total commercial catch for GOM haddock was only 66 percent of the commercial ACL. The recreational sub-ACL is only a small portion of the overall ACL. Thus, despite a relatively minor overage in the recreational fishery, total 2016 GOM haddock catch, is expected to be below the overall ACL.

Because the recreational measures currently in place for GOM cod and haddock are not expected to constrain fishing year 2017 catch to the sub-ACLs, we are adjusting management measures for the remainder of the fishing year, as recommended by the NEFMC. Effective July 27, 2017, recreational possession of GOM cod will be prohibited. The minimum size for GOM haddock is unchanged, but the bag limit is reduced from 15 fish to 12 fish, and a fall closed season has been added to the existing spring closure. These measures are summarized in Table 1, along with information on the current measures for comparison.

Recreational catch and effort data are estimated by the Marine Recreational Information Program (MRIP). A peer-reviewed bioeconomic model, developed by the Northeast Fisheries Science Center, was used to estimate 2017 recreational GOM cod and haddock mortality under various combinations of minimum sizes, possession limits, and closed seasons. Even when incorporating zero possession of GOM cod, the model estimates that the status quo measures for GOM haddock are not expected to constrain the catch of haddock, or the bycatch of cod, to the 2017 catch limits. Therefore, we are implementing more restrictive measures. Additional details are provided in the Supplemental EA (see ADDRESSES) and the proposed rule, and are not repeated here.

The final measures implemented by this action for the 2017 fishing year, as recommended by the NEFMC, are expected to result in a decrease in the number of trips taken by anglers, and decreased catch, in comparison to retaining the current measures, which is projected to allow the recreational fishery to reach, but not exceed, the 2017 recreational sub-ACLs (Table 2).

We have made numerous administrative changes under the authority of section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act that are necessary and consistent with the FMP's goals and objectives. In § 648.89(b), we added an exception to the minimum fish sizes for GOM cod and haddock to allow vessels to transit the GOM Regulated Mesh Area while in possession of cod and haddock caught outside the area, provided those fish meet the minimum sizes specified for fish caught outside the area. Amendment 16 to the FMP included seasonal closures of the GOM recreational fishery for cod and haddock, and also implemented a possession limit exemption to allow vessels to transit the GOM when it was closed while in possession of fish legally caught outside the area. At that time, there was a single minimum size for cod, and a single minimum size for haddock, regardless of where the fish were caught and the transiting provision included in Amendment 16 did not address minimum fish size restrictions.

Subsequently, we changed the minimum sizes for GOM cod and haddock as part of the proactive accountability measures. We adjust the recreational measures for only GOM cod and haddock because these are the only stocks allocated a recreational sub-ACL. This has created a complicated system in which vessels may transit the GOM Regulated Mesh Area with fish legally caught outside the area in excess of the GOM possession limits, but those vessels must comply with the most restrictive minimum size of the two areas, rather than the minimum size applicable to where the fish were caught. The intent of this change is to simplify the existing transiting exemption by allowing any cod and haddock legally caught outside the GOM to be possessed by vessels transiting the GOM to ensure consistent implementation of the existing transiting provision.

In § 648.89(e), we revised the text specifying the requirements for the letters of authorization allowing charter and party boats to fish in the GOM closed areas and the Nantucket Lightship Closed Area to improve readability. In paragraph (e)(3), we also corrected the name of the NMFS office issuing letters of authorization from the “Northeast Regional Office” to the “Greater Atlantic Regional Fisheries Office.”

In § 648.89(f)(2)(ii), we removed text prohibiting the Regional Administrator from adjusting the possession limit for GOM cod while recreational possession of GOM cod was prohibited by the Northeast Multispecies FMP. In 2016, Framework Adjustment 55 removed this prohibition, but the final rule implementing Framework Adjustment 55 inadvertently failed to remove this text. This change is intended to correct the regulations to accurately reflect the NEFMC's intent in Framework Adjustment 55.

We received 67 comments on the proposed 2017 recreational measures. Two comments received were not germane to the proposed measures. We received pertinent comments from the NEFMC, the Massachusetts Division of Marine Fisheries, the New Hampshire Fish and Game Department, the Stellwagen Bank Charter Boat Association, and 63 members of the public.

Comment 1: The New Hampshire Fish and Game Department, the Stellwagen Bank Charter Boat Association, and 31 individuals submitted comments regarding the publication of the proposed rule after the May 1 start of the 2017 fishing year. The New Hampshire Fish and Game Department expressed concern that the publication of the proposed rule after the start of the fishing year would exacerbate the existing timing problems of states attempting to match federal measures and inform anglers, and for-hire businesses attempting to attract business before knowing the regulations. The Stellwagen Bank Charter Boat Association and 30 individuals expressed disappointment because they feared that late implementation of the changes to the recreational measures would undermine the work of the NEFMC and its Recreational Advisory Panel (RAP) to develop and provide recommendations that would prevent catch from exceeding the quotas. The Stellwagen Bank Charter Boat Association and 30 individuals also urged that recreational anglers should not be subject to any further restrictions in the haddock bag limit or increases in the haddock minimum size in fishing year 2018 as a result of late implementation of changes in fishing year 2017. One individual commented that we should not change measures mid-season because business owners and recreational anglers have made financial decisions based on the current regulations.

Response: We agree that these timing issues make it difficult for the for-hire fleet to market and book trips, hamper the ability of states to implement complementary recreational measures, and create challenges for recreational anglers to be informed of the latest regulations. The timing of changes to the recreational measures has been an issue for several years. MRIP collects information on recreational catch and effort. This information is processed in 2-month `waves' and preliminary data is available six weeks after the end of each wave. Because of this, preliminary catch through October (which includes the majority of annual recreational groundfish activity) is first available after mid-December. As a result, January is the earliest we are able to present an analysis of the MRIP information and any potential changes that may be necessary for the next fishing year. This creates a compressed period for consideration of options, the public NEFMC consultation process, and proposed and final rulemaking. Because of this timeline, recreational measures for the new fishing year are generally not finalized until just prior to the start of the fishing year.

Although it is not ideal to change the recreational measures after the start of the fishing year this year, it is necessary that the revised measures be implemented before the recreational cod season opens. The recreational cod season is closed under status quo measures until August 1. While late implementation is not ideal, the timing of this action will still effectively prohibit the retention of cod in the recreational fleet.

Because of the challenging timeline of the current recreational process, we are working with the NEFMC to consider possible ways to modify the regulatory process so regulations for the recreational fishery can be finalized sooner. Changes to the recreational process would be incorporated into Framework 57, which is intended to be implemented for the 2018 fishing year. Additionally, any changes to the recreational measures for fishing year 2018 would be based on the 2018 catch limits and an analysis of expected catch in 2018.

Comment 2: The Stellwagen Bank Charter Boat Association and 30 individuals alleged that the reason the agency proposed an alternative September closure for haddock was because implementing the reduced haddock bag limit after May 1 would result in increased catch. One additional individual requested that we inform the recreational community of our reasons for the measures that were proposed.

Response: As discussed in the proposed rule, we sought comments on the effects of a more conservative fall closure on the fishery in comparison to the Council's proposed closure to address concerns about the recreational fishery's recent history of exceeding the GOM cod and haddock sub-ACLs. A U.S. District Court considered a history of overages and the effectiveness of accountability measures in the Gulf of Mexico red snapper fishery (Guiondon v. Pritzker, 2014) and struck down the accountability measure because they did not sufficiently ensure the limits would not be exceeded. We presented a more conservative closure season for comments to closely consider whether the Council's proposed accountability measures would sufficiently account for management uncertainty, prevent GOM cod and haddock catch overages, and provide an opportunity for the fishery to attain its allowable catch. As discussed in the preamble, we have determined that the Council's proposed measures sufficiently constrain catch and are more consistent with the FMP's goals and objectives.

Comment 3: The NEFMC, the Massachusetts Division of Marine Fisheries, and the New Hampshire Fish and Game Department, and one individual commented that the issues in the Guindon v. Pritzker case are distinct from the recreational fishery for GOM cod and haddock, and that measures more conservative than the suite recommended by the NEFMC are not necessary or justified. The commenters also noted that the additional NMFS alternative in the proposed rule would not provide a clear conservation benefit in comparison to the NEFMC's recommended suite of measures.

Response: We agree that the recreational fishery for GOM cod and haddock and the suite of management measures for the fishery is distinct from the Guindon v. Pritzker case. Further, the GOM haddock stock is healthy and that the total ACL has not been fully harvested in the last 2 years. We considered stock status when evaluating the alternatives and, as discussed in the preamble, are implementing the NEFMC's recommended measures rather than the more conservative September closure for haddock. The model predicts that these measures have a 78-percent chance that catch of the rebuilding GOM cod stock will not exceed the recreational quota, and a 50-percent chance that the catch of the abundant and healthy GOM haddock stock will achieve, but not exceed the recreational quota. While the GOM haddock stock is healthy, the GOM cod stock is overfished and estimated to be only 4-6 percent of the target population size. Given the differences in the sizes and health of these two stocks, the final 2017 measures appropriately balance the risk of exceeding the quotas with the goal of achieving the quotas and providing the greatest overall benefit to the nation.

Comment 4: The Massachusetts Division of Marine Fisheries and the New Hampshire Fish and Game Department commented that the bioeconomic model fails to account for variance in the underlying MRIP data and uncertainty in the model inputs because it uses point estimates. The NEFMC commented that, in 2015, when recreational possession of cod was prohibited for the first time, the bioeconomic model overestimated cod catch and angler effort, and that a cod prohibition in 2017 could again result in lower actual angler effort than the model has predicted.

Response: The bioeconomic model uses point estimates of catch from MRIP and currently does not incorporate measures of uncertainty in the MRIP data, although it might be possible to incorporate some measures of uncertainty in the future. As a result, the the model may underestimate or overestimate catch and angler trips in any given year. In recent years, the model has underestimated haddock and cod catch, with one exception in 2015. Although the bioeconomic model overestimated cod catch and the number of angler trips in 2015, it is unlikely to recur in 2017. The model had likely overestimated cod catch because at that time the model did not take into account factors that we expected would keep cod catch low, including a prohibition on retention of cod and the ability of vessels to avoid cod while targeting other species. However, we expect the bioeconomic model to better estimate the effect of prohibiting cod possession on total cod catch and the number of angler trips in 2017 because the model now incorporates data from 2015.

Although there are uncertainties in the bioeconomic model, the Northeast Multispecies FMP incorporates both scientific uncertainty and management uncertainty in setting annual catch limits. These uncertainty buffers increase the likelihood of achieving management targets and reduce the risk of overfishing. Among other factors discussed in the preamble, the incorporation of scientific and management uncertainty already built into setting recreational catch limits was a consideration in our determination to adopt the less conservative measures for haddock.

Comment 5: The New Hampshire Fish and Game Department and the Massachusetts Division of Marine Fisheries commented that we should address uncertainty in the GOM cod and haddock recreational fishery in a similar manner to the Atlantic States Marine Fisheries Commission's approach to using point estimates in the black sea bass fishery. Specifically, the New Hampshire Fish and Game Department recommended that we compare MRIP harvest estimates with a percent standard error to the recreational sub-ACLs and retain the status quo recreational measures for the next year if the recreational quota was within the percent standard error of the MRIP harvest estimate. The Massachusetts Division of Marine Fisheries also urged that we consider the Atlantic States Marine Fisheries Commission's approach to summer flounder. Specifically, using multiple years of MRIP data and incorporating standard errors around the MRIP catch estimates when developing recreational measures.

Response: The bioeconomic model uses point estimates of recreational catch and effort from MRIP and produces point estimates that may underestimate or overestimate catch and angler trips. At the request of the New Hampshire Fish and Game Department, we provided an estimate of model uncertainty for the two options proposed. That estimate did not include uncertainty in the MRIP data, but did incorporate some sources of uncertainty in the model simulations. While the estimate is informative, additional work should be done before determining whether or not the bioeconomic model can incorporate uncertainty. Amendment 16 to the Northeast Multispecies FMP requires that recreational catch is calculated consistent with the catch used in the stock assessment. At this time, the stock assessments for GOM cod and haddock do not incorporate separate calculations of uncertainty for MRIP catch estimates. In evaluating possible changes to the recreational management process in Framework 57, the NEFMC could consider changes to the method for determining when AMs are triggered.

Comment 6: The New Hampshire Fish and Game Department urged us to maintain the current haddock measures, in conjunction with prohibiting recreational possession of cod (analyzed and presented to the NEFMC as Option 1), because the GOM haddock stock is not overfished and the haddock quota is increasing. Additionally, New Hampshire contended that overfishing would not occur if the recreational fishery caught the amount of haddock predicted by the bioeconomic model for this scenario (1,288 mt) because total catch (including all other sectors catching their full quotas) would still be less than the acceptable biological catch due to the buffers between the acceptable biological catch and the catch limits. Further, New Hampshire argued that the recreational haddock quota, 1,160 mt, was within the 95-percent confidence interval of the model's predicted haddock catch for Option 1. The Massachusetts Division of Marine Fisheries (MA DMF) also commented that the recreational haddock quota for 2017 was within the 95-percent confidence interval for Option 1, but supported the NEFMC's recommended haddock measures, rather than the status quo haddock measures.

Response: We disagree that the status quo haddock measures should be maintained. While the GOM haddock stock is healthy and growing, we are still obligated to set measures we expect will achieve, but not exceed the catch limit. As explained in our response to Comment 7, we expect the model's estimate of catch and effort to be more accurate now because the bioeconomic model now incorporates data from 2015, when cod possession was prohibited. The 12-fish bag limit, with a 17-inch (43.2-cm) minimum size, and closed seasons March 1-April 14 and September 17-October 31 have a 50-percent chance of achieving, but not exceeding, the catch limit. This is an appropriate balance of risk for a healthy stock with a growing population. Setting measures we expect will exceed the catch limit solely because we expect the overage will not cause overfishing is inconsistent with the requirements of the Magnuson-Steven Fishery Conservation and Management Act.

Comment 7: Six commenters generally supported maintaining status quo measures.

Response: We disagree that the status quo recreational measures should be retained for 2017. A peer-reviewed bioeconomic model, developed by the Northeast Fisheries Science Center, was used to estimate 2017 recreational GOM cod and haddock mortality under various combinations of minimum sizes, possession limits, and closed seasons. Even when incorporating zero possession of GOM cod, the model estimates that the status quo measures for GOM haddock are not expected to constrain the catch of haddock, or the bycatch of cod, to the 2017 catch limits. The Council's more conservative measures are necessary to prevent exceeding the 2017 catch limits.

Comment 8: Thirty-three commenters supported the fall haddock closure as proposed by the NEFMC (September 17 through October 31). MA DMF specifically commented on the potential significant economic impact of a Labor Day closure, and cited this as one reason they supported the NEFMC proposed option. Thirty commenters discussed the benefits of keeping the fishery open in early September relative to allowing recreational anglers a final opportunity to fish before many typically haul out their vessels, and end their season.

Response: We agree. After further consideration of the alternatives, the fall closure recommended by the NEFMC better aligns with the objectives of this action. We have approved the haddock measures recommended by the NEFMC. As further discussed in the proposed rule, the supplemental EA, and the preamble to this rule, the measures being implemented for the 2017 fishing year are expected to meet, but not exceed the catch limits, and provide a better balance between our conservation objectives and the anticipated negative short-term economic impacts of the proposed alternatives.

Comment 9: One commenter supported the 4-week September closure for haddock that we presented for comments as an alternative in the proposed rule. Another commenter supported a 4-week September closure starting the Monday after Labor Day, and one commenter opposed a fall closure for haddock in general.

Response: We disagree and are implementing the 6-week closure proposed by the NEFMC, as discussed in the preamble and response to Comment 11. Selection of the timing and length of the closure was based on the outputs of the model and the consideration of other factors in order to ensure the recreational fishery achieves, but does not exceed, the recreational fishery sub-ACLs. A fall closure was determined to be a necessary measure to ensure that not only the GOM haddock, but GOM cod sub-ACLs are not exceeded.

Comment 10: Thirty-seven commenters supported the 12-fish haddock bag limit.

Response: We agree and have approved the 12-fish haddock bag limit recommended by the NEFMC. As further discussed in the proposed rule, preamble, and the supplemental EA, and the preamble to this rule, the measures being implemented for the 2017 fishing year are expected to meet, but not exceed the catch limits.

Comment 11: Three commenters support a lower bag limit for haddock than was proposed.

Response: We disagree that a lower bag limit is needed. The 12-fish bag limit for haddock, in conjunction with the other measures, is intended to balance the need to constrain catch within the ACL, with social and economic considerations. Further reduction of the haddock bag limit is not biologically necessary and would likely unnecessarily increase negative economic effects to the recreational fishery.

Comment 12: One commenter suggested that we reduce the haddock minimum size to 16 inches (40.64 cm) to reduce discards.

Response: We disagree. Potential changes to minimum sizes and the impact on the catch and fishery are incorporated into the bioeconomic model. We are maintaining the current minimum size (17 inches; 43.2 cm) for GOM haddock in this action.

Comment 13: Seven commenters wanted the recreational cod fishery to be reopened. Two commenters wanted to maintain the status quo cod season. Several commenters referenced their personal fishing experience and stated that they encountered more cod in 2016 than they had in the past.

Response: We disagree that the recreational fishery for cod should be open in 2017. This action prohibits the retention of GOM cod by recreational anglers year-round. GOM cod is overfished, and overfishing is occurring. In fishing year 2016, the recreational cod ACL was exceeded by 92 percent, and the recreational cod quota remains the same in 2017 as it was in 2016. More restrictive measures on recreational cod, and haddock, fishing are required to ensure that the recreational cod quota is not exceeded again. We understand that there are short-term negative economic effects associated with the prohibition on recreational cod fishing. We are hopeful that the continued efforts to rebuild the GOM cod stock will result in increased opportunities for recreational fishermen in the future.

Comment 14: Two comments discussed alternative management measures for cod that were not in the proposed rule: A 2- to 4-week cod season for one 26-inch (66.0-cm) or greater cod, or the use of a slot limit for cod (24-29 inches; 61.0-73.7 cm).

Response: We disagree that these options would have been viable alternatives for the 2017 fishing year. Even when zero possession of cod was analyzed, the recreational cod catch limit was projected to be exceeded without additional measures limiting the catch of haddock to further reduce the projected cod catch. Limited seasons and slot limits could be appropriate for consideration in future actions.

Comment 15: Thirty-six commenters supported the prohibition of cod.

Response: We agree. We have implemented the prohibition on recreational GOM cod catch as one measure to constrain 2017 recreational cod catch to the sub-ACL. GOM cod are overfished and overfishing is occurring so the recreational sub-ACL has been set at an extremely low level of 157 mt. This decision has been explained further in the preamble.

Comment 16: Two commenters cited concerns about the impact of the recreational fishery on spawning cod.

Response: This action did not consider measures to protect spawning cod, and as a result, these comments are irrelevant to, and outside the scope of, the measures approved in this final rule. However, to provide some background, the Northeast Multispecies FMP includes measures to protect spawning cod during times when aggregations are known to occur consistently. Some of these closures apply to the recreational fishery, while others only apply to commercial groundfish vessels. In the future, the NEFMC could consider changes to these closures, including the fisheries that are exempt from the closures, as well as additional spawning protections.

Comment 17: Thirty-four commenters supported adoption of the measures proposed by the NEFMC.

Response: We agree, and are implementing the measures proposed by the NEFMC because these measures balance regional differences and impacts on anglers and the for-hire fleet. Additionally, the NEFMC measures provide a sufficient probability of achieving, but not exceeding, the GOM cod and haddock 2017 catch limits.

Comment 18: The NEFMC commented that although the NMFS option is estimated to have only $100,000 less economic benefit than the NEFMC option, it is not clear if the model can accurately estimate the economic impact of a Labor Day weekend closure because it is less than a whole MRIP wave.

Response: We agree that the bioeconomic model estimates for a timeframe of less than 1 month may be less precise than estimates produced for a complete wave. We are not implementing the additional NMFS option for a 4-week closure in September.

Comment 19: Seven individuals commented that the commercial fishery should be shut down, or kept 50 miles from shore, to allow increased harvesting opportunities for recreational fishermen. One commenter asserted that the recreational fishery cannot catch as much as one commercial haul.

Response: The Northeast Multispecies FMP allocates separate sub-ACLs for GOM cod and haddock to both the commercial and recreational components of the fishery. Each component allocated a sub-ACL is also subject to specific AMs if it exceeds that sub-ACL. These measures are intended to ensure that each fishery is able to access the resource and be accountable for any overages, and is intended to prevent one component of the fishery from negatively affecting another component. The recreational fishery is allocated 33 percent of the total GOM cod ACL and 27 percent of the GOM haddock ACL, and in 2016 caught more than its allocation for both stocks. In recent years, recreational catch has, at times, exceeded commercial catch, and can be a substantial portion of overall GOM cod and haddock catch. Additionally, the status quo measures are not expected to constrain recreational catch to its sub-ACLs in 2017, and as a result, the final measures implemented in this action are necessary to ensure that the recreational sub-ACLs are not exceeded.

Comment 20: Two commenters supported separate measures for private vessels and for-hire vessels.

Response: During development of 2017 measures, the Council's RAP and Groundfish Oversight Committee considered separate measures for private vessels and the for-hire fleet. As discussed in the proposed rule, the NEFMC declined the Groundfish Committee's recommendation to implement separate measures for these fleets at this time in deference to having a larger public process to consider the concept. Separate measures for these fleets may be considered in a future action.

Comment 21: One individual commented that haddock 17 inches (43.2 cm) and larger were rare and questioned why anglers do not see these small haddock turn into high numbers of larger fish the next year.

Response: In recent years, there have been multiple large year classes of haddock. These large year classes can make larger haddock appear less common by comparison; the proportion of young fish to old fish is high in the current population. The growth rate of haddock has varied over time and may be related to population size. Prior to declines of the haddock population in the mid-twentieth century, haddock grew slower than was observed when the population was smaller in the later twentieth century. In recent years, with the large populations of haddock and as a result, slower growth rates in haddock.

The average weight of haddock caught by recreational anglers in 2016 (1.7 lb; 0.8 kg) was the same as the average weight in 2015, while the average number of haddock caught per angler trip nearly doubled (from 5.5 to 14) between 2015 and 2016. This information does not demonstrate a strong benefit to further reduce the minimum size for haddock at this time.

Comment 22: The Stellwagen Bank Charter Boat Association and 31 individuals commented that the MRIP data are incorrect and suggested we should not use catch and effort estimates to manage the recreational fishery. In particular, estimates of the number of angler trips was a concern raised in these comments.

Response: Estimates of catch and effort must be used because it is not possible to have a complete census of all recreational anglers to capture all catch and every angler trip. MRIP is the method used to count and report marine recreational catch and effort. In January 2017, the National Academies of Science released their latest review of MRIP and recognized NMFS for making “impressive progress” and “major improvements” to MRIP survey designs since the 2006 review of MRIP. While there are some remaining challenges to MRIP surveys, we continue to make improvements including transitioning from the Coastal Household Telephone survey to the Fishing Effort Survey, which will further improve our estimates of recreational fishing effort.

The Administrator, Greater Atlantic Region, NMFS, determined that these measures are necessary for the conservation and management of the Northeast multispecies fishery and that the measures are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries finds good cause to make this rule effective immediately upon filing with the Office of the Federal Register. This final rule implements reductions from the recreational management measures implemented for fishing year 2016, and that currently remain in place. In fishing year 2016, the GOM cod recreational sub-ACL was exceeded by 92 percent and recreational sub-ACL is unchanged for 2017. GOM cod are overfished and overfishing is occurring, and it is critical that the 2017 recreational management measures, which prohibit the retention of cod, go into effect before the season opens to ensure that the catch limit is not exceeded again. Fishing effort and catch are both strong in summer months. Further delay of the implementation of these measures increases the likelihood of quota overages that could require implementation of even more restrictive measures in a future action. If this rule is not effective on, or before, August 1, then the GOM recreational cod season will open and anglers will be able to retain these fish. A targeted fishery would result in an increase in cod catch not only due to retention of cod, but due to discards of cod which are higher during an open season than when anglers are intentionally avoiding cod altogether to focus on other species. Thus, delaying implementation of these measures would be contrary to the public interest of ensuring that GOM cod catch limits are not exceeded.

The Northeast Multispecies fishing year begins on May 1 of each year and continues through April 30 of the following calendar year. The collection and processing of recreational data creates a very compressed period for consideration of options, the public NEFMC process, and the rulemaking process prescribed by the Administrative Procedure Act. We consulted with the NEFMC in January 2017. On January 25, 2017, the NEFMC voted to recommend to us the suite of recreational measures we are implementing. In addition to this collaborative consultation process prescribed for the proactive AM, we must fully evaluate and analyze the measures under consideration. This involves not only the bioeconomic model output presented in January, but also includes an environmental analysis consistent with the NEPA requirements, and a systematic review of compliance with other applicable laws. In order to evaluate the impact of the 2016 recreational catch overages, and the proposed management alternatives, we needed to consider them in the context of total catch and catch limits. Final data on commercial catch of GOM cod and haddock, and the portion of the catch limit that was utilized, was not available until July 5, 2017.

For the reasons outlined, NMFS finds that there is good cause to waive the otherwise applicable requirement to provide a 30-day delay in implementation.

This final rule has been determined to be not significant for purposes of E.O. 12866.

A final regulatory flexibility analysis (FRFA) was prepared for this action. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA and NMFS responses to those comments, and a summary of the analyses completed to support the action. The FRFA includes sections of the preamble (SUPPLEMENTARY INFORMATION) and analyses supporting this rulemaking, including the Framework Adjustment 55 EA, the supplemental EA to Framework Adjustment 55, and the supplemental information report. A description of the action, why it is being considered, and the legal basis for this action are contained in the supplemental information report and preamble to the proposed rule, and are not repeated here (see ADDRESSES). A summary of the analyses follows.

Our responses to all of the comments received on the proposed rule, including those that raised significant issues with the proposed action, or commented on the economic analyses summarized in the IRFA, can be found in the Comments and Responses section of this rule. In the proposed rule we solicited comments on two options. The majority of comments supported implementing the measures that the NEFMC recommended, including the fall haddock closure from September 17 through October 31. Most of these comments expressed disappointment that the recommended measures were not implemented in time for the May 1 start to the fishing year and raised concerns that the delay would cause further overages and result in additional restrictions on the recreational fishery in 2018. There was one comment on the IRFA. The NEFMC pointed out that the bioeconomic model cannot estimate recreational effort at a time scale of less than a month. Given this restriction it is not clear that the model can accurately capture the impacts of a closure that discourages recreational fishing during the Labor Day weekend, the last 3-day weekend of the summer and an important component of the for-hire fleet's business. This comment, among other information as discussed in the preamble, supports our decision to implement the NEFMC's proposed option.

The Small Business Administration (SBA) defines a small commercial finfishing or shellfishing business as a firm with annual receipts (gross revenue) of up to $11.0 million. A small for-hire recreational fishing business is defined as a firm with receipts of up to $7.5 million. Having different size standards for different types of fishing activities creates difficulties in categorizing businesses that participate in multiple fishing related activities. For purposes of this assessment business entities have been classified into the SBA-defined categories based on which activity produced the highest percentage of average annual gross revenues from 2013-2015, the most recent 3-year period for which data are available. This classification is now possible because vessel ownership data have been added to Northeast permit database. The ownership data identify all individuals who own fishing vessels. Using this information, vessels can be grouped together according to common owners. The resulting groupings were treated as a fishing business for purposes of this analysis. Revenues summed across all vessels in a group and the activities that generate those revenues form the basis for determining whether the entity is a large or small business.

This rule includes closed seasons in addition to possession limits and size limits. For purposes of this analysis, it is assumed that for-hire businesses are directly affected by all three types of recreational fishing restrictions. According to the FMP, it is unlawful for the owner or operator of a charter or party boat issued a valid multispecies permit, when the boat is carrying passengers for hire, to:

• Possess cod or haddock in excess of the possession limits;

• Fish with gear in violation of the regulations; and/or

• Fail to comply with the applicable restrictions if transiting the GOM Regulated Mesh Area with cod or haddock on board that was caught outside the GOM Regulated Mesh Area.

As the for-hire owner and operator can be prosecuted under the law for violations of the proposed regulations, for-hire business entities are considered directly affected in this analysis. Anglers are not considered “entities” under the RFA and thus economic impacts on anglers are not discussed here.

For-hire fishing businesses are required to obtain a Federal charter/party multispecies fishing permit in order to carry passengers to catch GOM cod or haddock. Thus, the affected businesses entities of concern are businesses that hold Federal multispecies for-hire fishing permits. While all business entities that hold for-hire permits could be affected by changes in recreational fishing restrictions, not all business that hold for-hire permits actively participate in a given year. Those who actively participate, i.e., land fish, would be the group of business entities that are impacted by the regulations. Latent fishing power (in the form of unfished permits) has the potential to alter the impacts on a fishery, but it's not possible to predict how many of these latent business entities will or will not participate in this fishery in fishing year 2017. The Northeast Federal landings database (i.e., vessel trip report data) indicates that a total of 645 party/charter vessels held a multispecies for-hire fishing permit in 2015 (the most recent full year of available data). Of the 645 for-hire permitted vessels, however, only 208 actively participated in the for-hire Atlantic cod and haddock fishery in fishing year 2015 (i.e., reported catch of cod or haddock).

Using vessel ownership information developed from Northeast Federal permit data and Northeast vessel trip report data, it was determined that the 208 actively participating for-hire vessels are owned by 191 unique fishing business entities. The vast majority of the 208 fishing businesses were solely engaged in for-hire fishing, but some also earned revenue from shellfish and/or finfish fishing. The highest percentage of annual gross revenues for all but 18 of the fishing businesses was from for-hire fishing. In other words, the revenue from for-hire fishing was greater than the revenue from shellfishing and the revenue from finfish fishing for all but 18 of the business entities.

According to the SBA size standards, small for-hire businesses are defined as firms with annual receipts of up to $7.5 million, and small commercial finfishing or shellfishing business as firms with annual receipts (gross revenue) of up to $11.0 million. Average annual gross revenue estimates calculated from the most recent three years (2013-2015) indicate that none of the 191 for-hire business entities had annual receipts of more than $5.2 million from all of their fishing activities (for-hire, shellfish, and finfish). Therefore, all of the affected for-hire business entities are considered “small” by the SBA size standards and thus this action will not disproportionately affect small versus large for-hire business entities.

There are no reporting, recordkeeping, or other compliance requirements.

The action is authorized by the regulations implementing the Northeast Multispecies FMP. It does not duplicate, overlap, or conflict with other Federal rules.

A total of seven combinations of recreational measures were presented to the Recreational Advisory Panel, the Groundfish Oversight Committee, and the NEFMC. This included the status quo and an option (presented as Option 1) that prohibited cod possession while retaining the current haddock measures that would not have restrained catch to the quotas, and thus, would not have accomplished the objective. The proposed options that would accomplish the objectives were the NEFMC recommended option (presented as Option 2) and the additional NMFS option (presented as Option 3), which are discussed in detail in the preamble of the proposed rule. The remaining three options (Options 4, 5, and 6 in Table 3) that would accomplish the objective were discussed by all three groups. These remaining options were rejected either because implementation was viewed as confusing to the public (e.g., implementing a May closure shortly after the start of the fishing year on May 1) or in deference to having a larger public process to consider the concept (i.e., separate measures for the private anglers and the for-hire fleet).

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office (see ADDRESSES), and the guide, i.e., bulletin, will be sent to all holders of permits for the Northeast multispecies fishery. The guide and this final rule will be available upon request.

For the reasons set out in the preamble, NMFS amends 50 CFR part 648 as follows: