Federal Register Vol. 82, No.196,

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0817; Product Identifier 2017-NE-30-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM.

We were notified of the discovery of multiple cracked 4th stage LPT air seals, part number (P/N) 50N346. This proposed AD requires removal from service of certain air seals. Replacement of the air seal also requires replacement of the 4th stage LPT vane cluster honeycomb. This condition, if not corrected, could result in failure of the air seal, uncontained air seal release, damage to the engine, and damage to the airplane.

We reviewed PW Alert Service Bulletin (SB) No. PW4ENG A72-830, Revision 1, dated May 2, 2017. This PW Alert SB provides instructions for replacement of the 4th stage LPT air seal. We also reviewed Cleaning Inspection Repair (CIR) Manual, P/N 51A357, Task 72-53-24, Repair-02. This CIR Manual provides guidance for 4th stage LPT vane cluster honeycomb replacement repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require replacing 4th stage LPT air seals, P/N 50N346.

We estimate that this proposed AD affects 991 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

The Commission has long made its records available to the public but it has never formalized its open records policy in regulation. The Commission first promulgated its “Freedom of Information Policy” on January 11, 1979. As an interstate compact agency, no single member jurisdiction may subject the Commission to its open records law. See C.T. Hellmuth & Associates v. Washington Metropolitan Area Transit Authority, 414 F. Supp. 408 (D. Md. 1976) (holding that Maryland could not unilaterally subject transit authority to the provision of the Maryland Public Information Act). In recognition of this limitation, the Commission developed its policy “in line with Freedom of Information legislation enacted by all four signatory jurisdictions.” See Minutes of Commission Meeting (Jan. 11, 1979). As noted in the January 11, 1979, meeting minutes of the Commission, the Policy “merely formalized the current Commission practice of making its records available to the furthest extent possible.”

The Commission updated its open records policy on September 10, 2009, by adopting its “Access to Records Policy,” Policy No. 2009-02 on September 10, 2009. This policy replaced the 1979 Freedom of Information Policy. The updated policy reflected the practice of the Commission's member jurisdictions, recognized records in electronic format as being subject to public access and added a formal procedure for the protection of confidential information submitted by project sponsors and a procedure for the public to challenge the designation of this information as confidential. This revised policy also provided that the Commission “will endeavor to make as much information as possible available on its Web site . . . , in an effort to eliminate the need for many records requests.” For example, the Commission provides all of its approved dockets on its Web site, as well as information summaries for each docket or project application pending before the Commission, policies, reports, publications and data from its water quality monitoring programs.

The Commission believes the results of this policy have been successful. From 2012 through 2016, the Commission provided records to 152 distinct records requests in writing for documents data or information, as well as innumerable informal requests. The Commission Web site has been a well-used public resource and repository for records. In the past 12 months, the Commission Web site has received 121,213 visits from 26,522 unique visitors. The Commission Water Application and Approval Viewer, where the public can view Commission dockets and pending application information, was recently upgraded to increase its functionality and ease of use and received 16,593 unique page views over the past 12 months. Similarly, the Commission water quality network data landing page received 9,904 unique page views over this same time period.

The Commission wishes to continue this long tradition of transparency by further formalizing the key elements of its Access to Records Policy in duly promulgated regulations. The Commission is not looking to replace the policy, but rather to memorialize the key tenets of the policy in regulation. Through this action, the Commission will be codifying its commitment to public access to records in a way that imbues them with the status of law that can be enforceable against the Commission.

The Commission's 2009 Access to Records Policy can be found at: http://www.srbc.net/pubinfo/docs/2009-02_Access_to_Records_Policy_20140115.pdf. The Commission's current records processing fee schedule can be found at: http://www.srbc.net/pubinfo/docs/RecordsProcessingFeeScheduleUpdatedAddress.pdf.

Accordingly, for the reasons set forth in the preamble, the Susquehanna River Basin Commission proposes to amend 18 CFR part 801 as follows:

Background and Explanation of Provision

This document contains proposed amendments to 26 CFR part 1 under section 754 of the Code. Specifically, these proposed amendments would remove the signature requirement contained in § 1.754-1(b) (current regulation) in order to eliminate a regulatory burden.

Section 754 provides that if a partnership files an election (section 754 election), in accordance with regulations prescribed by the Secretary, the basis of partnership property shall be adjusted, in the case of a distribution of property, in the manner provided in section 734 and, in the case of a transfer of a partnership interest, in the manner provided in section 743. Such an election applies with respect to all distributions of property by the partnership and to all transfers of interests in the partnership during the taxable year with respect to which such election was filed and all subsequent taxable years. Such election may be revoked by the partnership, subject to such limitations as may be provided by regulations prescribed by the Secretary.

The current regulation provides the method to make the section 754 election and states in relevant part that a section 754 election shall be made in a written statement (section 754 election statement) filed with the partnership return for the taxable year during which the distribution or transfer occurs. For the section 754 election to be valid, the return must be filed not later than the time prescribed for filing the return for such taxable year, including extensions. The current regulation requires that the section 754 election statement (i) set forth the name and address of the partnership making the election, (ii) be signed by any one of the partners, and (iii) contain a declaration that the partnership elects under section 754 to apply the provisions of section 734(b) and section 743(b). Accordingly, under the current regulation, a partnership that files an unsigned section 754 election statement with its partnership return (whether filed electronically or in paper) has not made a valid section 754 election.

Currently the only remedy for failing to make a proper section 754 election is to request “9100 relief” to make a late section 754 election either: (1) Through automatic relief, if the error is discovered within 12 months pursuant to § 301.9100-2 of the Procedure and Administration Regulations; or (2) through a private letter ruling request pursuant to § 301.9100-3. The IRS has received numerous requests for 9100 relief with respect to unsigned section 754 election statements, especially where returns have been filed electronically. In order to ease the burden on partnerships seeking to make a valid section 754 election and to eliminate the need to seek 9100 relief, the Treasury Department and the IRS are proposing to amend the current regulation to remove the signature requirement in § 1.754-1(b)(1). The amended regulation will provide that a taxpayer making a section 754 election must file a statement with its return that: (i) Sets forth the name and address of the partnership making the section 754 election, and (ii) contains a declaration that the partnership elects under section 754 to apply the provisions of section 734(b) and section 743(b).

The amendments to this regulation are proposed to apply to taxable years ending on or after the date of publication of the Treasury decision adopting these rules as a final regulation in the Federal Register. Taxpayers, however, may rely on this proposed regulation for periods preceding the proposed applicability date. Accordingly, partnerships that filed a timely partnership return containing an otherwise valid section 754 election statement, but for the missing signature of a partner on the statement, will not need to seek 9100 relief in such cases.

Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It is hereby certified that this regulation, if adopted, would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. chapter 6). This certification is based on the fact that this regulation reduces the information currently required to be collected in making an election to adjust the basis of partnership property and thereby reduces burden on small entities. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.

Before this proposed regulation is adopted as a final regulation, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and the IRS request comments on all aspects of the proposed regulation. All comments will be available at www.regulations.gov or upon request. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

The principal author of this regulation is Meghan M. Howard of the Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

Section 503 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), requires that every employee benefit plan shall establish and maintain reasonable procedures governing the filing of benefit claims, notification of benefit determinations, and appeal of adverse benefit determinations. In accordance with its authority under ERISA section 503, and its general regulatory authority under ERISA section 505, the Department of Labor (“Department”) long ago established regulations setting forth minimum requirements for employee benefit plan procedures pertaining to claims for benefits by participants and beneficiaries. 29 CFR § 2560.503-1.

On December 19, 2016, the Department published a final regulation (“Final Rule”) amending the existing claims procedure regulation; the Final Rule revised the claims procedure rules for ERISA-covered employee benefit plans that provide disability benefits. The Final Rule was made effective January 18, 2017, but the Department delayed its applicability until January 1, 2018, in order to provide adequate time for disability benefit plans and their affected service providers to adjust to it, as well as for consumers and others to understand the changes made.

The Final Rule requires that plans, plan fiduciaries, and insurance providers comply with certain requirements when dealing with disability benefit claimants. In summary, the Final Rule includes the following requirements for the processing of claims and appeals for disability benefits:

• Disclosure Requirements. Benefit denial notices must contain a more complete discussion of why the plan denied a claim and the standards it used in making the decision. For example, notices must include a discussion of the basis for disagreeing with a disability determination made by the Social Security Administration (“SSA”) if presented by the claimant in support of his or her claim.

• Claim File and Internal Protocols. Benefit denial notices must include a statement that the claimant is entitled to receive, upon request, the entire claim file and other relevant documents. Currently, this statement is required only in notices denying benefits on appeal. Benefit denial notices also must include the internal rules, guidelines, protocols, standards, or other similar criteria of the plan that were used in denying a claim, or a statement that none were used. Currently, denial notices are not required to include these internal rules, guidelines, protocols, or standards; instead denial notices may include a statement that such rules, guidelines, protocols, or standards were used in denying the claim and that a copy will be provided to the claimant upon request.

• Review and Respond to New Information. Plans may not deny benefits on appeal based on new or additional evidence or rationales that were not included when the benefit was denied at the claims stage, unless the claimant is given notice and a fair opportunity to respond.

• Conflicts of Interest. Plans must ensure that disability benefit claims and appeals are adjudicated in a manner designed to ensure the independence and impartiality of the persons involved in making the decision. For example, a claims adjudicator or medical or vocational expert could not be hired, promoted, terminated, or compensated based on the likelihood of the person denying benefit claims.

• Deemed Exhaustion. If a plan does not adhere to all claims processing rules, the claimant is deemed to have exhausted the administrative remedies available under the plan, unless the violation was the result of a minor error and other conditions are met. If the claimant is deemed to have exhausted the administrative remedies available under the plan, the claim or appeal is deemed denied on review without the exercise of discretion by a fiduciary and the claimant may immediately pursue his or her claim in court. A plan also must treat a claim as re-filed on appeal upon the plan's receipt of a court's decision rejecting the claimant's request for review.

• Coverage Rescissions. Rescissions of coverage, including retroactive terminations due to alleged misrepresentation of fact (e.g., errors in the application for coverage) must be treated as adverse benefit determinations, thereby triggering the plan's appeals procedures. Rescissions for non-payment of premiums are not covered by this provision.

• Communication Requirements in Non-English Languages. Benefit denial notices have to be provided in a non-English language in certain situations, using essentially the standard applicable to group health benefit notices under the Affordable Care Act (“ACA”). Specifically, if a disability claimant's address is in a county where 10 percent or more of the population is literate only in the same non-English language, benefit denial notices must include a prominent statement in the relevant non-English language about the availability of language services. In such cases, plans also would be required to provide oral language services in the relevant non-English language and provide written notices in the non-English language upon request.

When it adopted the Final Rule, the Department published a regulatory impact analysis (“RIA”) to support its conclusion that changes to the existing rules were necessary to ensure that disability claimants receive a full and fair review of their claims. The Department found at that time that the Final Rule would change the claims review process for ERISA-covered disability plans by expanding due process rights. The analysis concluded that: (1) The Final Rule would help alleviate the hardship to many individuals when they are unable to work after becoming disabled and their claims are unfairly denied; and (2) greater consistency in the handling of disability benefit claims and appeals, and improved access to information about the manner in which claims and appeals are adjudicated, would lead to efficiency gains in the system, both in terms of the allocation of spending at a macro-economic level as well as operational efficiencies among individual plans.

On the cost side, the RIA concluded that the amendments would have modest costs, since many of the amendments clarified provisions of the claims procedure regulation or required the provision of information to claimants that adjudicators should already possess. Although the Department requested data when it first proposed amendments to the claims procedure regulation in April 2015 (“2015 NPRM”), the comment letters received generally did not contain alternative cost and benefits estimates or data that the Department could use to estimate costs and benefits for the Final Rule. However, the Department quantified the costs associated with two specific provisions in the Final Rule for which it had sufficient data: The requirements to provide (1) additional information to claimants in the appeals process; and (2) information in a non-English language. The RIA acknowledged that the Department did not have sufficient data to quantify the benefits associated with the Final Rule.

After the Department published the Final Rule, certain stakeholders asserted in writing that the Final Rule will drive up disability benefit plan costs, cause an increase in litigation, and thus impair workers' access to disability insurance protections.1 In support of these assertions, the stakeholders say that the right to review and respond to new information or rationales unnecessarily “complicates the processing of disability benefits by imposing new steps and evidentiary burdens in the adjudication of claims,” and that some of the new disclosure requirements “forc[e] plans to consider disability standards and definitions different from those in the plan.” 2 In addition, the stakeholders say that the new deemed exhaustion provision “explicitly tilts the balance in court cases against plans and insurers” and “creates perverse incentives for plaintiff's attorneys to side-step established procedures and clog the courts for resolution of benefit claims.” 3 The stakeholders argue that these provisions (and others) collectively “will delay any final decision for the claimant and will significantly increase the administrative burdens on employers and disability insurance carriers, hurting the very employee the rule was purporting to help.” 4 Moreover, according to the stakeholders, these new provisions (and others) are unnecessary in any event because “there are already existing robust consumer protections applicable and available to disability claimants that have worked for well over a decade.” 5 Members of Congress also presented these same or similar concerns in writing to the Secretary of Labor.6

A confidential survey of carriers covering approximately 18 million participants in group long term disability plans (which reflects approximately 45% of the group long-term disability insurance market), conducted by the stakeholders estimated that the Final Rule would cause average premium increases of 5-8% in 2018 (when the Final Rule is scheduled to take effect) for several survey participants.7 The stakeholders argue that the demand for disability insurance is highly sensitive to price changes, such that even minor price increases can result in take-up rate reductions. For example, they reported that when the State of Vermont mandated mental health parity several years ago, there was an approximately 20% increase in premiums, which resulted in a 20% decrease of covered employees.8 Thus, they conclude that the cost increases caused by the Final Rule will result in employers reducing and/or eliminating disability income benefits, and that some individuals may elect to drop or forego coverage, with the result being that fewer people will have adequate income protection in the event of disability. The stakeholders further assert that loss of access not only may be adverse to individual workers and their families, but also potentially adverse to federal and state public assistance programs more generally.9

The stakeholders acknowledge that the Final Rule's RIA addressed the limited data sources that were publicly available at that time, and that the Department's ability to fully quantify and evaluate costs and benefits was accordingly constrained. But the stakeholders say that such data could be developed by the industry and provided to the Department, and have promised to work with the Department to obtain this data. They explain that collecting the relevant data is a complex process that will take time and involve an expenditure of resources. For example, because each carrier's data is proprietary and contains sensitive business information, an independent third party must collect it in a manner that protects this information. This may include, among other things, negotiating specific non-disclosure, security, and data retention agreements. They further observe that such a process must also be carefully designed to ensure that there are no violations of relevant federal or state laws, such as antitrust laws. The stakeholders also assert that each carrier's existing information technology systems may collect and report data in different ways, so, to be usable, the data must be aggregated into standardized data sets, anonymized to ensure that no data point can be attributed to a single carrier, and reviewed and analyzed to ensure accuracy and reliability (as required for a regulatory impact analysis). The stakeholders made a commitment to provide this data and asked the Department to delay the Final Rule's applicability date.

On February 24, 2017, after the Final Rule amending the disability claims procedure was published and became effective, the President issued Executive Order 13777 (“E.O. 13777”), entitled Enforcing the Regulatory Reform Agenda.10 E.O. 13777 is intended to reduce the regulatory burdens agencies place on the American people, and directs federal agencies to undertake specified activities to accomplish that objective. As a first step, E.O. 13777 requires the designation of a Regulatory Reform Officer and the establishment of a Regulatory Reform Task Force within each federal agency covered by the Order. The Task Forces were directed to evaluate existing regulations and make recommendations regarding those that can be repealed, replaced, or modified to make them less burdensome. E.O. 13777 also requires that Task Forces seek input from entities significantly affected by regulations, including state, local and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations.

In light of the foregoing, the Department has concluded that it is appropriate to seek additional public input regarding the regulatory impact analysis in the Final Rule. If additional reliable data and information is submitted, the Department will be able to consider whether it supports regulatory alternatives other than those adopted in the Final Rule. The Department is unable to complete a notice and comment and reexamination process by January 1, 2018, particularly given the complex data collection and sanitation process required here, as described by the stakeholders. Extending the applicability date past January 1, 2018, would allow the Department to complete this public solicitation process and examine regulatory alternatives. The Department consequently seeks public input on a proposed 90-day delay.11 For reasons discussed below, the Department believes 90 days is a reasonable period during which to review public input and take an appropriate course of action.

As indicated above, a primary concern of the stakeholders is that the Final Rule will unnecessarily increase the cost of coverage and discourage the uptake and utilization of disability coverage. While a number of the commenters on the 2015 NPRM forecasted increased regulatory and compliance costs as a whole, few, if any, of them offered itemized cost estimates on a provision-by-provision basis.12 The Department recognizes that access to disability benefits depends in part on affordability, which is affected by regulatory burdens. Accordingly (as opposed to generalized predictions of cost increases or aggregate cost estimates of the Final Rule in its entirety), the Department solicits costs estimates on each of the provisions contained in that rule. Itemized cost estimates of this type would enhance the Department's ability to assess costs and benefits of regulatory alternatives and to select approaches that maximize net benefits.

The Department also seeks data on the price elasticity of demand for disability insurance coverage. Many stakeholders, for example, discuss price sensitivity in this market and predict possibly significant reductions in access to coverage unless the Final Rule is revised or repealed (i.e., that the price elasticity of demand in this market is relatively elastic). Evidence of this elasticity would be very helpful to the Department. For example, a number of states (some very recently) have banned discretionary clauses in insurance policies, which may have resulted in increased administrative costs. In those cases, is there data showing reduced demand (in terms of dropped coverage or reduced uptake) following the implementation of the bans? Another example is the Final Rule's requirement to discuss the basis for disagreeing with a disability determination made by the SSA. Is there data showing a detrimental impact on coverage in jurisdictions where courts 13 have endorsed such an explanation? Another possible example is the changes to the claims procedure requirements made in 2000.14 Is there data showing a detrimental impact on coverage after those revisions were made? This is not an exhaustive list of potentially relevant situations or questions; instead, it is intended to provide insight into issues the Department intends to consider and as to which comments will be helpful.

The Department also seeks comments on any matter germane to this examination, including the merits of rescinding, modifying, or retaining the Final Rule. Upon completion of this public solicitation process and review, the Department may decide to allow all or part of the Final Rule to take effect as written, propose a further extension, withdraw the Final Rule, or propose amendments to the Final Rule. The Department requests comments on each of these possible outcomes.

Comments on whether to extend the applicability date for 90 days must be submitted to the Department within 15 days. If the 90-day period is insufficient, please specify a sufficient period of time and explain why longer than 90 days is needed. Comments providing data or otherwise germane to the examination of the merits of rescinding, modifying, or retaining the rule must be submitted to the Department within 60 days. If 60 days is not enough time to provide input on the broader examination, including responding to the various data requests throughout this document, commenters are encouraged to notify the Department within the 15-day period, and to explain why 60 days is not enough time and specify how much time is needed. This will give the Department an opportunity to consider whether to extend the 60-day comment period in conjunction with a decision on whether and how long to delay the applicability date.

The Department proposes to delay the applicability date of the Final Rule for 90 days—through April 1, 2018. During the delay, the Department will review the Final Rule to determine whether it is unnecessary, ineffective, or imposes costs that exceed benefits in conformance with E.O. 13777. As part of this process, the Department also will review data submitted on the issues raised on the RIA in the Final Rule to determine whether such new information and data support changes to the Final Rule.

The delay is necessary to avoid the applicability date of the Final Rule occurring before the Department completes its review, which would necessarily require those regulated by the Final Rule to prepare for and begin complying on January 1, 2018 while the Department is still reviewing the rule. That would unnecessarily and unwisely disrupt the disability insurance market and produce frictional costs that are not offset by commensurate benefits. The tradeoff is that the changes in the Final Rule will be delayed.

This proposed extension of the applicability date of the Final Rule is a significant regulatory action within the meaning of section 3(f)(4) of Executive Order 12866, because it raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Therefore, the Department has considered the costs and benefits of the proposed extension, and the Office of Management and Budget (“OMB”) has reviewed and approved the proposed applicability date extension.

The Department's regulatory impact analysis of the Final Rule estimated that benefits derived by workers seeking disability benefits justify compliance costs.15 The 90-day delay of the applicability date would delay these estimated costs and benefits by 90 days.

Data limitations prevented the Department from quantifying benefits the Final Rule would provide to workers and their family members participating in ERISA-covered disability insurance plans. The RIA for the Final Rule includes a qualitative analysis of the benefits. The Department estimated at that time that as a result of the rule:

• Some participants would receive payment for benefits they were entitled to that were improperly denied by the plan;

• There would be greater certainty and consistency in the handling of disability benefit claims and appeals, and improved access to information about the manner in which claims and appeals are adjudicated;

• Fairness and accuracy would increase in the claims adjudication process.

The Department estimated that the requirements of the Final Rule would have modest costs. The Department quantified the costs associated with two provisions of the Final Rule for which it had sufficient data: The requirements to provide: (1) Providing additional information to claimants in the appeals process ($14.5 million annually); and (2) providing information in a non-English language ($1.3 million annually).

Stakeholders have raised concerns that the Department underestimated the costs of the Final Rule and maintain that if the Department had properly estimated costs, it would have found that the costs exceed the Final Rule's benefits. Specifically, stakeholders assert that: (1) Requiring benefit denial notices include a discussion of the basis for disagreeing with a disability determination made by the SSA will increase costs because SSA's definitions, policies, and procedures may be different from those of private disability plans; (2) providing that the claimant is deemed to have exhausted the administrative remedies available under the plan if plans do not adhere to all claims processing rules, unless the violation was the result of a minor error and other specified conditions are met, will result in increased litigation and administrative costs; and (3) prohibiting plans from denying benefits on appeal based on new or additional evidence or rationales that were not included when the benefit was denied at the claims stage, unless the claimant is provided notice and an opportunity to respond to the new or additional information or rationales, will lead to protracted exchanges between plans and claimants that will cause delays and lead to higher costs. Stakeholders also argue that participants in disability plans are very sensitive to price increases and predict that the cost increases associated with the Final Rule will cause some individuals to elect to drop or forego coverage, meaning that fewer people will have adequate income protection in the event of disability.

During the proposed 90-day applicability date delay, the Department intends to assess the impacts of the Final Rule. In order for the assessment to be as robust as possible, the Department is hereby requesting data that would help it quantify the payments for plan benefits that plan participants would receive and any cost increases or reductions in access to coverage that could result if the delayed provisions of the Final Rule take effect. Specifically, the Department requests data that it could use to assess: (1) The number of disability claims that are filed and denial rates for such claims, including rates separately for claimants who were previously approved under the Social Security Disability Insurance Program (SSDI) and statistics on reasons for denial; (2) how often plans rely on new or additional evidence or rationales during the claims review process and the volume of the material that comprise such additional evidence or rationales; (3) the price elasticity of demand for disability insurance coverage; (4) pricing or premiums for group and individual level policies and factors that affect pricing; (5) loss ratios and the breakdown of expenses (claims, sales, claims processing, etc.); (6) aggregate, average, and median benefits paid and ages of claimants; (7) the projected litigation costs associated with the new procedural requirements for disability claims provided in the Final Rule; (8) the number of new claims that will be granted that, but for the provisions in the Final Rule, would have been denied, and the value of those benefits; (9) the systems and technology that plans and insurers use to process disability claims and cost estimates updating such systems to comply with the Final Rule; (10) statistics on steps, timing of steps, and disposition of claims from initial filing to final disposition, including claims filed but never perfected or decided, up to and including claims denied though appeal and litigated; and (11) information regarding the costs for non-English services and the estimated population of claimants that might be expected to use such services. The Department understands that such data is not publicly available and is willing to work with stakeholders to ensure that any trade secrets and proprietary business information are protected from public disclosure and that the data collection process is designed to ensure that no violations of antitrust or other federal or state laws occur.16

It also would be helpful for the Department to receive data regarding the impact of the 2000 final claims and appeals regulation (2000 Final Rule). Commenters at the time stated that it would lead to cost increases and decreases in consumer access. The Department is interested in receiving data that shows: (1) Cost increases that resulted from compliance with the 2000 Final Rule (or lack thereof) and whether such costs were passed on to consumers; and (2) whether employers stopped offering disability insurance benefits and/or employee take-up rates decreased. The Department also requests data that demonstrates how the Department's 2000 Final Rule impacted the cost of disability claims litigation.

While the Department welcomes the submission of all relevant data, to ensure its usability, the providers of such data are encouraged to discuss its source(s), manner of collection, and any methodology used to analyze it and derive conclusions from it. The Department requests that commenters fully disclose any bias(es) associated with the data and provide honest evaluations of its strengths and weaknesses. This will help ensure that the Department reaches an optimal outcome and that full transparency is provided to the public.

The Paperwork Reduction Act (“PRA”) prohibits federal agencies from conducting or sponsoring a collection of information from the public without first obtaining approval from OMB. See 44 U.S.C. 3507. Additionally, members of the public are not required to respond to a collection of information, nor be subject to a penalty for failing to respond, unless such collection displays a valid OMB control number. See 44 U.S.C. 3512.

OMB approved information collections contained in the Final Rule under OMB Control Number 1210-0053. The Department is not modifying the substance of the Information Collection Requests at this time; therefore, no action under the PRA is required. The information collections will become applicable at the same time the rule becomes applicable. The information collection requirements contained in the Final Rule are discussed below.

This proposal would delay the applicability date of the Department's amendments to the disability claims procedure rule for 90 days, through April 1, 2018. The Final Rule revised the rules applicable to ERISA-covered plans providing disability benefits. Some of these amendments revise disclosure requirements under the claims procedure rule that are information collections covered by the PRA. For example, benefit denial notices must contain a full discussion of why the plan denied the claim, and to the extent the plan did not follow or agree with the views presented by the claimant to the plan or health care professional treating the claimant or vocational professionals who evaluated the claimant, or a disability determination regarding the claimant presented by the claimant to the plan made by the SSA, the discussion must include an explanation of the basis for disagreeing with the views or disability determination. The notices also must include either: (1) The specific internal rules, guidelines, protocols, standards or other similar criteria of the plan relied upon in making the adverse determination or, alternatively, (2) a statement that such rules, guidelines, protocols, standards or other similar criteria of the plan do not exist. Plan administrators also must provide (1) claimants with any new or additional evidence considered free of charge, and (2) notices of adverse benefit determination potentially in an non-English language.

The burdens associated with the disability claims procedure revisions are summarized below and discussed in detail in the regulatory impact analysis contained in the preamble to the Final Rule (81 FR 92317, 92340 (Dec. 19, 2016)). It should be noted that this proposal only affects the requirements applicable to disability benefit claims, which are a small subset of the total burden associated with the ERISA claims procedure information collection.

Type of Review: Revised collection.

Agencies: Employee Benefits Security Administration, Department of Labor.

Title: ERISA Claims Procedures.

OMB Number: 1210-0053.

Affected Public: Business or other for-profit; not-for-profit institutions.

Total Respondents: 5,808,000. Total Responses: 311,790,000.

Frequency of Response: Occasionally.

Estimated Total Annual Burden Hours: 516,000.

Estimated Total Annual Burden Cost: $814,450,000.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) imposes certain requirements with respect to federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq.) and which are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a rule is not likely to have a significant economic impact on a substantial number of small entities, section 604 of the RFA requires the agency to present an initial regulatory flexibility analysis (IRFA) of the proposed rule describing the rule's impact on small entities and explaining how the agency made its decisions with respect to the application of the rule to small entities. Pursuant to section 605(b) of the RFA, the Department certified that the Final Rule did not have a significant economic impact on a substantial number of small entities and provided an analysis of the rationale for that certification. Similarly, the Department hereby certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities because it merely delays the applicability date of the Final Rule.

The proposed rule is subject to the Congressional Review Act (CRA) provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.) and, if finalized, will be transmitted to Congress and the Comptroller General for review.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each federal agency to prepare a written statement assessing the effects of any federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. For purposes of the Unfunded Mandates Reform Act, as well as Executive Order 12875, this proposal does not include any federal mandate that we expect would result in such expenditures by state, local, or tribal governments, or the private sector. The Department also does not expect that the proposed rule will have any material economic impacts on State, local or tribal governments, or on health, safety, or the natural environment.

Executive Order 13132 outlines fundamental principles of federalism, and requires the adherence to specific criteria by federal agencies in the process of their formulation and implementation of policies that have “substantial direct effects” on the States, the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies promulgating regulations that have federalism implications must consult with State and local officials and describe the extent of their consultation and the nature of the concerns of State and local officials in the preamble to the Final Rule.

This proposed rule does not have federalism implications because it merely delays the applicability date of the rule. Therefore, the proposed rule has no substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. In compliance with the requirement of Executive Order 13132 that agencies examine closely any policies that may have federalism implications or limit the policy making discretion of the States, the Department welcomes input from States regarding this assessment.

Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. Section 2(a) of EO 13771 requires an agency, unless prohibited by law, to identify at least two existing regulations to be repealed when the agency publicly proposes for notice and comment, or otherwise promulgates, a new regulation. In furtherance of this requirement, section 2(c) of EO 13771 requires that the new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. This proposed rule is expected to be an EO 13771 deregulatory action.

For the reasons stated above, the Department proposes to amend 29 CFR part 2560 as follows:

I. Background A. Group Registration Under the 1976 Act

When Congress enacted the Copyright Act of 1976 (the “Act”), it authorized the Register of Copyrights (the “Register”) to specify by regulation the administrative classes of works for the purpose of seeking a registration and the nature of the deposits required for each class. In addition, Congress gave the Register the discretion to allow groups of related works to be registered with one application and one filing fee, a procedure known as “group registration.” See 17 U.S.C. 408(c)(1). Pursuant to this authority, the Register issued regulations permitting the U.S. Copyright Office (the “Office”) to issue group registrations for certain limited categories of works, provided that certain conditions have been met. See generally 37 CFR 202.3(b)(5)-(7), (9)-(10), 202.4.

As the legislative history explains, allowing “a number of related works to be registered together as a group represent[ed] a needed and important liberalization of the law. . . .” H.R. Rep. No. 94-1476, at 154 (1976); S. Rep. No. 94-473, at 136 (1975). Congress recognized that requiring applicants to submit separate applications for certain types of works may be so burdensome and expensive that authors and copyright owners may forgo registration altogether, since copyright registration is not a prerequisite to copyright protection. Id. If copyright owners do not submit their works for registration under this permissive system, the public record will not contain any information concerning those works. This creates a void in the public record that diminishes the value of the Office's database.

At the same time, when multiple works are combined in one application, information about the individual works may not be as robustly captured than if the applicant had submitted individual applications for each work. Therefore, group registration options require careful balancing of the need for an accurate public record and the need for an efficient method of examining, indexing, and cataloging each work.

When first implementing the Copyright Act of 1976, the Office issued a regulation that established a procedure for registering certain “multiple self-contained works” as a “single work” “on a single application and upon payment of a single registration fee.” See 43 FR 965, 966 (Jan. 5, 1978); 37 CFR 202.3(b)(4)(i). The regulation provided that “[i]n the case of unpublished works, all copyrightable elements that are otherwise recognizable as self-contained works, and are combined in a single unpublished `collection' ” “shall be considered a single work.” 37 CFR 202.3(b)(4)(i). The Office refers to this procedure as the registration accommodation for “unpublished collections.” 1

The unpublished collection regulation provides that “a combination of such elements shall be considered a `collection' if: (1) The elements are assembled in an orderly form; (2) The combined elements bear a single title identifying the collection as a whole; (3) The copyright claimant in all of the elements, and in the collection as a whole, is the same; and (4) All of the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element.” Id. § 202.3(b)(4)(i)(B). The regulation further provides that a “[r]egistration of an unpublished `collection' extends to each copyrightable element in the collection and to the authorship, if any, involved in selecting and assembling the collection.” Id. § 202.3(b)(4)(i).

When the Office issued the regulation, it did not rely on its statutory authority to issue a group registration under section 408(c)(1) of the 1976 Act. The Office “reserved for implementation in a separate proceeding, the possibility of providing for `a single registration for a group of [ ]related works' under paragraph (c)(1) of section 408” and invited “comments and suggestions as to the types of related works that could appropriately be covered by [a] group registration. . . .” 43 FR at 966.

Instead, the regulation was “based on existing Copyright Office practices.” Id. 2 In codifying these practices, the Office relied on its general authority to issue registrations for individual works under sections 408(a) and 409 of the statute, rather than its authority to issue a group registration under section 408(c)(1). See 17 U.S.C. 408(a), 409 (authorizing the Office to register a “work”); 43 FR at 966; Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 205 (3d Cir. 2005) (“The single work registration provision [for registering a unit of publication] . . . was promulgated pursuant to the language of 17 U.S.C. 408(a)” and “codified the pre-existing Copyright Office practice of allowing copyright owners to register multiple works published together as a single work for a single fee.”).

The regulatory accommodation for unpublished collections was well-intentioned but has imposed an increasing burden on the administration of the copyright registration system.

The Office did not set a limit on the number of works that may be registered with this accommodation. As a result, applicants are able to submit dozens, hundreds, even thousands of works with one application and one filing fee. See, e.g., Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1195 (10th Cir. 2005) (noting that the plaintiff registered its works as an unpublished collection to offset the expense of submitting “several thousand works”). This has strained the resources of all three divisions within the Registration Program. It also creates an imperfect record of what was submitted for registration and what was actually reviewed for copyrightable authorship. When confronted with such a voluminous amount of material, it is difficult for the Office to conduct a full and complete examination of each and every work in the collection, and in many cases it would be impossible to do so for the fee paid for this option (currently $55). See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 1108 (3d ed. 2017) (“Compendium (Third)”). Use of the unpublished collections option in this manner has led to courts to raise concerns.3

The unpublished collection option also blurs the distinction between an unpublished collection and a collective work. A collective work is defined in the statute as a type of a compilation, and specifically, “a work . . . in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. 101. An “unpublished collection,” however, doesn't usually exist as a “work”—it is often assembled solely for purposes of registration. At the same time, the unpublished collection option was not promulgated as a form of group registration, even as it has some of those features (e.g., it covers each work that is eligible for copyright protection). This “neither-fish-nor-fowl” feature of the unpublished collections option has always made it an oddity in Copyright Office practice.

To address these issues and improve the quality and efficiency of the registration process, the Office is proposing to create a new group registration option for unpublished works. The new procedure, known as the “group option for unpublished works” or “GRUW,” will replace the administrative accommodation that allows applicants to register their works as an unpublished collection. Key details of the proposal are discussed below. The Office welcomes public comment on each aspect of the proposed rule.

As with the current unpublished collection option, applicants may use this option only if all the works in the group are unpublished. The applicant will be responsible for making this determination, and generally, the Office will accept that determination unless it is contradicted by the information contained within the registration materials.4 But if the applicant provides the wrong information, there is a risk that the registration may be challenged or invalidated in an infringement action.5

All the works within the group must be registered in the same administrative class. For example, an applicant could register a group of unpublished poems, essays, and short stories, because each work would be classified as a “literary work.” By contrast, an applicant could not register a group of unpublished stories, photographs, and songs, because these works fall within different administrative classes.

There are two reasons for this requirement. First, the Office assigns each claim to the division that specializes in examining literary works, visual arts works, or works of the performing arts. If the applicant included different types of works within the same claim, the Office would have to assign those works to different examiners in different divisions. This would slow the examination and delay the final registration decision. Second, the Office assigns one registration number to the certificate of registration for a group of unpublished works. The prefix for this number is based on the administrative classification that best describes the works in the group (TXu for literary works, VAu for visual arts works, PAu for performing arts works, and SRu for sound recordings). If an applicant included different types of works within the same claim, the registration number would not match the group as a whole.

The Office proposes that as a general rule, applicants may include up to five works in each claim. This represents a change from the current regulation, which has no limit on the number of works that may be included in an unpublished collection. As discussed above, this reduces the quality of the registration record, and makes it difficult to examine each work for copyrightable authorship.

The Copyright Office is committed to creating the best public record possible for a group registration, including pertinent information and an appropriate assessment of the copyrightability of each work within that group. To further those statutory goals, the Office must impose some limit on the number of works that may be submitted, given its limited examination staff and the modest filing fee for a group registration of multiple works. The Office has determined that a limit of five works would allow it to examine each work for copyrightable authorship and to confirm that the legal and formal requirements for registration have been met. Under the proposed rule, the application will contain only five title fields and a pop up warning for anyone that inserts punctuation into a title field warning that only five works may be listed. If an applicant submits more than five works the Office may ask the applicant to exclude the additional works from the claim or may simply refuse registration.6

There is a limited exception for sound recordings. Under the current regulations governing applications for individual works, an applicant may register a sound recording together with the musical work, dramatic work, or literary work embodied in that recording, provided that both works are fixed in the same phonorecord, the applicant has submitted one application for both works,7 and the claimant for both works is the same person or organization. 37 CFR 202.3(b)(1)(iv)(A)-(C). Similarly, under the proposed rule, applicants can include up to five sound recordings, together with a musical work, literary work, or dramatic work embedded in each recording with each group registration application.8 To do so, they must satisfy the same conditions that apply with respect to individual sound recording registrations, as well as the generally applicable requirements for this group registration option, including that the author for each sound recording and the works embodied in those recordings must also be the claimant for those works, and that the authorship and ownership must be identical for each work. For example, applicants would be able to register a group of songs and sound recordings jointly written and performed by Peter and Paul, but they would not be able to register a song written by Peter and Paul together with a recording performed solely by Mary. The reasons for these additional requirements are discussed below.

Applicants will be required to provide a title for each work in the group. By contrast, they will not need to provide a title for the group as a whole, because that information will be added automatically by the electronic registration system.9 This represents a change from the current regulation, under which applicants are expected to provide a title for the collection as a whole but not for the works themselves. Id. § 202.3(b)(4)(i)(B)(2). This change will improve the quality of the registration record. Interested parties typically search for works by title, and it may be difficult to find a particular work if the applicant fails to provide this information in the application. Indeed, the lack of titles for individual works in an unpublished collection has created confusion as to whether a registration for an unpublished collection covers the individual works or the collection as a whole. See, e.g., Szabo v. Errisson, 68 F.3d 940, 942-44 (5th Cir. 1995). The proposed rule addresses these issues by providing an efficient and straightforward way to identify the individual works, while providing clear guidance that the registration covers the individual works.

Under the proposed rule, all the works in the group must be created by the same author or the same joint authors. For example, an applicant could submit five songs created solely by Peter or five songs created jointly by Peter, Paul, and Mary. But the applicant could not submit two songs created by Peter together with three songs created by Peter, Paul, and Mary. In this situation, the applicant would need to separate the songs into two groups and submit a separate application for each group.

This represents another change in policy. The current unpublished collections regulation states that all the elements in the collection must be created by the same author—unless they were created by multiple authors, in which case at least one author must contribute copyright authorship to each element. 37 CFR 202.3(b)(4)(i)(B)(4). This standard has made the examination of these claims unnecessarily complicated. Requiring the author or co-authors of each work to be the same simplifies eligibility requirements, which will improve the efficiency of the examination by allowing the Office to focus on the works themselves.

The proposed rule provides that the copyright claimant for each work must be the same person or organization, similar to the regulation that currently governs unpublished collections. Id. § 202.3(b)(4)(i)(B)(3). But the proposed rule adds an additional requirement, namely, that the author or joint authors must be named as the claimant for each work in the group. Thus, if the applicant submitted five songs created jointly by Peter, Paul, and Mary, those individuals must also be named as co-claimants for each song—even if a different party actually owned the copyright in those works. This requirement comports with the basic principle that an author may always be named as the copyright claimant, id. § 202.3(a)(3), as well as the Office's longstanding view that an author may be named as a claimant, even if the author does not own any of the exclusive rights when the claim is submitted, see Compendium (Third) § 619.7 (citing 42 FR 48944, 48945 (Sept. 26, 1977)).

Requiring the author(s) to be named as the copyright claimant(s) will again simplify the registration process. Under general Copyright Office practice, if the author and claimant are not the same person, the applicant is required to provide a transfer statement explaining how the claimant acquired all of the rights that initially belonged to the author. When registering unpublished collections, applicants often name a third party as the copyright claimant, but fail to provide a transfer statement. In such cases, the Office must correspond to determine if the claimant actually owns all of the exclusive rights in the works, which delays the registration decision and contributes to the overall backlog of pending claims. Given the reduced fee for examination of multiple works, the Office must minimize known problems. Moreover, imposing this limitation will help target the group registration option to its intended beneficiaries: Individual creators or small businesses who might not otherwise use the more expensive standard registration application to register their unpublished works on an individual basis. The Office has taken a similar approach with the group registration options for serials, newsletters, and published photographs. 37 CFR 202.3(b)(6)(i)(F), (b)(9)(iv), (b)(10)(i)-(ii). Based on this experience, the Office expects that this same approach will produce an optimal public record, while reducing the administrative burden that these claims impose on the Office.

While the Office proposes this change to facilitate the efficiency of examinations, it also expects that, in practice, this requirement will not prove difficult for those individual creators and small businesses who are the targets of this group registration option. Of course, those applicants who do not qualify for the group registration option may still register unpublished works individually using the standard application.

This group registration option may be used to register anonymous works or pseudonymous works, but all the works in the group must all be either anonymous or created under the same pseudonym. For example, an applicant could submit stories by “Anonymous” or stories by “Mark Twain” (a.k.a. Samuel Clemens) but could not register these stories with the same application. As with the regular registration application, the applicant should be careful not to inadvertently include the author's real name, as it would become part of the public records and cannot be changed after registration.10 In the context of this group registration application, this includes ensuring that the author and claimant fields in the application are the same (i.e., both list “anonymous” or both list the pseudonym).11

An unpublished work may be registered as a work made for hire if it is identified as such in the application and if the employer is named as the author/claimant. Likewise, an applicant may register an unpublished work that was jointly created by an individual and an organization. But, under the proposed rule, because the author(s) and claimant(s) for each work must be the same, an applicant would not be able to submit works created for a company pursuant to a work made for hire agreement, together with works created by an individual and acquired by that same company through a transfer of ownership.

Under the proposed rule, the applicant must provide a brief statement that describes the new copyrightable authorship, and the authorship statement for all works must be exactly the same. For example, if the author created five songs, the applicant would state “unpublished musical works (without or without lyrics).” If the author created five sound recordings and the songs embodied in each recording, the applicant would state “unpublished sound recordings and musical works (without or without lyrics).”

This represents a change in practice, in that the current regulation focuses on the “copyrightable elements” of the submitted works, rather than the works as a whole themselves, and the online application accordingly contains a series of checkboxes, such as “text,” “music,” and “lyrics.” 37 CFR 202.3(b)(4)(i)(B). This may encourage applicants to assert a claim in the individual elements of their works, rather than asserting a claim in the works as a whole.

If the works contain an appreciable amount of material that has been previously published or previously registered, the applicant must exclude that material from the claim. Likewise, applicants should disclaim material that is owned by a third party or material that is in the public domain. This basic rule is the same as under the current regulation, though the new online application will implement it differently, by giving the applicant an opportunity to identify any elements that should be excluded from the claim using his or her own words, rather than a set of predetermined checkboxes. The new online application will also remove the requirement to identify the new material that should be “included” in the claim. As described above, applicants will be asked simply to identify the type of work the author created, and the Office will assume that the applicant intends to register all copyrightable aspects of the work that have not been expressly disclaimed.

Under the proposed rule, applicants will be required to use an online application specifically designed for this group registration option. If an applicant attempts to register multiple unpublished works with standard online application or a paper application, the Office will refuse to register the claim. In such cases, the applicant will need to submit a new application using the designated application for GRUW, which will result in a later effective date of registration and will require a new filing fee and deposit. Recently, the Office changed its practices to require other applications to be filed online, and the rationales provided in those rulemaking documents apply equally here.12

To facilitate this transition, the Office will add appropriate warnings to the electronic registration system and the instructions for the paper applications. The Office will prepare an online tutorial that explains how to use the new application and “help text” within the application itself that will provide answers to frequently asked questions. In addition, the Office will revise the portions of Compendium, Third and Circular 34 that discuss the Office's practices and procedures for group registrations.

As with the other rules recently promulgated, the proposed rule allows the Office to waive the online filing and electronic upload requirements in exceptional cases. Applicants who do not have internet access and are unable to use the online application may request a waiver in writing. The Office will review each request and will make accommodations for applicants who receive a waiver, including by providing a mechanism by which staff will assist in filling out the application.13

A supplementary registration is a special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration,” including a registration for a group of related works. 17 U.S.C. 408(d); see also 37 CFR 202.6(b)(1)(i). Specifically, it identifies an error or omission in an existing registration and places the corrected information or additional information in the public record.

The Office recently issued a final rule that modified this procedure, in most cases requiring supplementary registration applicants to file an online application. 37 CFR 202.6. The Office explained that this online-filing requirement would apply to supplementary registrations for “works registered as an unpublished collection.” 81 FR 86656, 86657 (Dec. 1, 2016). It also noted that if it decided to move “registrations for other classes of works into the electronic system, supplementary registrations for those works will also be subject to this same requirement.” Id. at 86658. Thus, if applicants need to correct or modify information appearing in a registration for an unpublished collection or a registration for a group of unpublished works, they must use the online application, or the Office will instruct the applicant to resubmit the claim using the online version of this form. See id.

To be clear, a supplementary registration cannot be used to convert a registration for an unpublished collection into a registration for a group of unpublished works. 82 FR 27424, 27426 (June 15, 2017). Reclassifying an unpublished collection as a group registration would alter the fundamental nature of the claim and would be inconsistent with the statutory and regulatory provisions stating that a supplementary registration augments—but does not supersede—a basic registration. 17 U.S.C. 408(d); 37 CFR 202.6(f)(2).

Under the proposed rule, applicants will be required to electronically submit one complete copy or phonorecord of each work in the group. Specifically, applicants must upload each work to the electronic registration system as an electronic file in one of the acceptable file formats listed on the Office's Web site (http://copyright.gov/eco/help-file-types.html). The Office will not accept physical copies or physical phonorecords, such as print-outs, photocopies, CDs, DVDs, or the like.

Applicants may save the deposits in a .zip file before upload that file to the system, but if the .zip file contains any unacceptable file types the claim will be refused. In all cases, the works must be submitted in an orderly manner and the size of each upload must not exceed 500 megabytes. Applicants may compress the works to comply with this limitation.

The filing fee for registering a group of unpublished works will be $55, which is the amount the Office currently charges for registering an unpublished collection with the online application. 37 CFR 201.3(c)(1)(ii). Once the proposed rule has been implemented, the Office will monitor the cost of examining these claims to determine if future fee adjustments may be warranted. It also will track the number of applicants who request a waiver from the online filing and electronic upload requirements (if any) and the amount of time needed to handle these requests. The Office will use this information in conducting its next fee study.

As in the recently concluded rulemaking for group registration of contributions to periodicals, the Office proposes to clarify that a registration for a group of unpublished works covers each work in the group and each one is registered as a separate work. 82 FR 29410, 29414 (June 29, 2017); see also 81 FR 86634, 86641 (noting that this is “the Office's longstanding position regarding the scope of a registration for a group of contributions to periodicals.”). The proposed rule also clarifies that applicants may not assert a claim in the selection, coordination, or arrangement of the works within the group and that the group as a whole is not considered a compilation or a collective work, or a derivative work. See 81 FR at 86641.

Section 410(b) of the Act directs the Office to refuse registration if it determines that “the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason.” 17 U.S.C. 410(b). If the Office determines that one or more of the works in a group is uncopyrightable, the examiner will ask the applicant to exclude those works from the claim. If the applicant agrees, the Office will issue a registration for the remaining works in the group. If the applicant declines to exclude the uncopyrightable works, the Office will issue a refusal for the entire group. 37 CFR 202.4(k).

The proposed rule confirms that a group of related works may be registered with one application and one filing fee if the conditions set forth in § 202.4 have been met. The regulation governing the group option for unpublished works will be set forth in § 202.4(c), and the regulation governing unpublished collections under § 202.3(b)(4)(i)(B) will be removed. It also confirms that an application for a group of related works may be submitted by any of the parties listed in § 202.3(c)(1) of the regulations.

The proposed rule makes a number of other tangentially related technical amendments; these are not intended to represent substantive changes in policy. For example, the proposed rule removes the terms “single” work, “single” application, “single” registration fee, and “single” unit of publication from this portion of the regulations. It replaces them with the terms “one work,” “one application,” “one filing fee,” and “the same unit of publication.” This is intended to avoid potential confusion with the “single application,” which may only be used to register “a single work by a single author that is owned by the person who created it.” 37 CFR 202.3(b)(2)(B). For similar reasons, the proposed rule removes the last sentence from § 202.3(b)(2)(i)(B), which states that an unpublished collection or unit of publication cannot be registered with the Single Application, because once the proposed rule goes into effect, this clarification will be superfluous.

The proposed rule will allow broader participation in the registration system by expanding the class of works that may be registered as a group, increase the efficiency of the registration process, and create a more robust record of the claim. The Office invites public comment on these proposed changes.

For the reasons set forth in the preamble, the U.S. Copyright Office proposes amending 37 CFR parts 201 and 202, as follows:

The additions and revisions read as follows:

The addition and revisions read as follows:

For further information regarding the negative declaration submitted by Philadelphia AMS for HMIWI units, please see the information provided in the technical support document in the rulemaking docket and in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication. The negative declaration letter submitted by Philadelphia AMS and technical support document in support of this action are also available online at www.regulations.gov.

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.

Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available at http://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

PP 5F8408. EPA-HQ-OPP-2015-0817. OAT AGRIO CO., LTD., 1-3-1 Kanda Ogawa-machi, Chiyoda-ku, Tokyo 101-0052, Japan, requests to establish a tolerance in 40 CFR part 180 for residues of fungicide, flutianil (Z)-2-[2-fluoro-5-(trifluoromethyl)phenylthio]-2-[3-(2-methoxyphenyl)-1,3-thiazolidin-2-ylidene]acetonitrile, in or on apple at 0.15 parts per million (ppm); apple, wet pomace at 0.30 ppm; cantaloupe at 0.07 ppm; cherry at 0.4 ppm; cucumber at 0.20 ppm; grape at 0.70 ppm; squash at 0.05 ppm; and strawberry at 0.50 ppm. Additionally, OAT AGRIO Company requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for indirect or inadvertent residues of fungicide, flutianil in or on all food commodities that do not have tolerances. The gas chromatography-mass spectrometry detector (GC/MSD) is used to measure and evaluate the chemical flutianil on apples, cantaloupe, cherry, cucumber, squash, and strawberry. The high performance liquid chromatography with tandem mass spectral detection (LCMS/MS) is used to measure and evaluate the chemical flutianil and the metabolite OC-56635 in grapes. Contact: RD.

In the Federal Register of April 25, 2016 (81 FR 24044) (FRL-9924-00), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F8408) by OAT AGRIO Company requesting that 40 CFR part 180 be amended by establishing tolerances on various agricultural commodities for residues of the fungicide, flutianil. That petition (PP 5F8408) has since been amended to also request an exemption from the requirement of a tolerance for indirect or inadvertent residues of all food commodities for which the EPA does not have established tolerances. Additionally, several revisions were made to both the commodity terminology and the tolerance level for certain commodities.

You may be potentially affected by this action if you manufacture (including manufacture as a byproduct chemical substance and including import) chemical substances listed on the Toxic Substances Control Act (TSCA) Inventory. The following list of North American Industrial Classification System (NAICS) codes are not intended to be exhaustive, but rather provides a guide to help readers determine whether this action may apply to them:

1. Chemical manufacturers and importers (NAICS codes 325 and 324110; e.g., chemical manufacturing and processing and petroleum refineries).

2. Chemical users and processors who may manufacture a byproduct chemical substance (NAICS codes 22, 322, 331, and 3344; e.g., utilities, paper manufacturing, primary metal manufacturing, and semiconductor and other electronic component manufacturing).

If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

1. Request for Input. Though the Committee has concluded its discussions and will not reconvene, EPA encourages public input on ways to decrease the burden associated with the reporting of inorganic byproducts while maintaining the Agency's ability to receive the information it needs to understand exposure. EPA is opening for 60 days the docket identified in this document to receive this public input.

2. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2016-0597, is available at http://www.regulations.gov or at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

EPA is giving notice that the Agency is cancelling the remaining scheduled meeting of the Negotiated Rulemaking Committee, and no further meetings are planned. The objective of this Committee was to negotiate toward consensus on proposed regulatory language limiting chemical data reporting requirements, under TSCA section 8(a), for manufacturers of any inorganic byproduct chemical substances when such byproduct chemical substances are subsequently recycled, reused, or reprocessed. This meeting is cancelled because the Committee determined that it was not able to reach consensus on regulatory approaches and has concluded its discussions. This Negotiated Rulemaking process was required by TSCA section 8(a)(6), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act).

This Committee was a statutory advisory committee under the Federal Advisory Committee Act, 5 U.S.C. App. 2 § 9(a)(1). In accordance with section 9(c) of the Federal Advisory Committee Act, 5 U.S.C. App. I § 9(c), EPA prepared a charter for the establishment of the Negotiated Rulemaking Committee. Copies of the Committee's charter were filed with the appropriate congressional committees and the Library of Congress. The Committee met on June 8 and 9, 2017 (82 FR 25790) (FRL-9961-92); August 16 and 17, 2017 (82 FR 25790); and September 13 and 14, 2017 (82 FR 39402) (FRL-9965-96). The Committee's charter and those meetings' agendas and materials are available in the docket supporting this activity (EPA-HQ-OPPT-2016-0597) and online at https://www.epa.gov/chemical-data-reporting/negotiated-rulemaking-committee-chemical-data-reporting-requirements.

The Committee, established on June 5, 2017, had an objective to negotiate a proposed rule that would limit chemical data reporting requirements under section 8(a) of TSCA, as amended by the Lautenberg Act, for manufacturers of any inorganic byproduct chemical substances when such byproduct chemical substances are subsequently recycled, reused, or reprocessed. The purpose of the Committee was to conduct discussions in a good faith attempt to reach consensus on proposed regulatory language. This negotiation process was required by section 8(a)(6) of TSCA.

What is the List of Fisheries?

Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental mortality and serious injury of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

Tier 1: Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock. If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock will be placed in Category III (unless those fisheries interact with other stock(s) for which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

Tier 2: Tier 2 considers fishery-specific mortality and serious injury for a particular stock.

Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level (i.e., frequent incidental mortality and serious injury of marine mammals).

Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level (i.e., occasional incidental mortality and serious injury of marine mammals).

Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level (i.e., a remote likelihood of or no known incidental mortality and serious injury of marine mammals).

Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086; August 30, 1995).

Because fisheries are classified on a per-stock basis, a fishery may qualify as one category for one marine mammal stock and another category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Stocks driving a fishery's classification are denoted with a superscript “1” in Tables 1 and 2.

The tier analysis requires a minimum amount of data, and NMFS does not have sufficient data to perform a tier analysis on certain fisheries. Therefore, NMFS has classified certain fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063; December 28, 1995) and listed in the regulatory definition of a Category II fishery: “In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental mortality or serious injury is “frequent,” “occasional,” or “remote” by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fishermen reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries” (50 CFR 229.2).

Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).

The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs and injury determination reports. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. The best available scientific information used in the SARs reviewed for the 2018 LOF generally summarizes data from 2010-2014. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports (i.e., MMPA mortality/injury reports), and anecdotal reports from that time period. In some cases, more recent information may be available and used in the LOF, but in an effort to be consistent with the most recent SARs and across the LOF, NMFS typically restricts the analysis to data within the five-year time period summarized in the current SAR.

For fisheries with observer coverage, species or stocks are generally removed from the list of marine mammal species and/or stocks incidentally killed or injured if no interactions are documented in the five-year timeframe summarized in that year's LOF. For fisheries with no observer coverage and for observed fisheries with evidence indicating that undocumented interactions may be occurring (e.g., fishery has low observer coverage and stranding network data include evidence of fisheries interaction that cannot be attributed to a specific fishery) species and stocks may be retained for longer than five years. For these fisheries, NMFS will review the other sources of information listed above and use its discretion to decide when it is appropriate to remove a species or stock.

The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each Pacific and Alaska SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. For Atlantic fisheries, this information can be found in the LOF Fishery Fact Sheets. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are generally not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: Level of observer coverage; target species; levels of fishing effort; spatial and temporal distribution of fishing effort; characteristics of fishing gear and operations; management and regulations; and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources Web site at: http://www.nmfs.noaa.gov/pr/sars/. Information on observer coverage levels in Category I, II, and III fisheries can be found in the fishery fact sheets on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html. Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's Web site: http://www.st.nmfs.gov/observer-home/.

The LOF includes three tables that list all U.S. commercial fisheries by Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and Table 3 lists all U.S.-authorized commercial fisheries on the high seas. A fourth table, Table 4, lists all commercial fisheries managed under applicable TRPs or take reduction teams (TRTs).

Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 2, and 3 by a “*” after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

HSFCA permits are valid for five years, during which time Fishery Management Plans (FMPs) can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008). Additional information about HSFCA permits can be found at: http://www.nmfs.noaa.gov/ia/permits/highseas.html.

Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: When the fishery was added to the LOF; the basis for the fishery's initial classification; classification changes to the fishery; changes to the list of species and/or stocks incidentally killed or injured in the fishery; fishery gear and methods used; observer coverage levels; fishery management and regulation; and applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html, linked to the “List of Fisheries by Year” table. NMFS is developing similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets is taking significant time to complete. NMFS began posting Category III fishery fact sheets online with the LOF for 2016.

Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials.

In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail or with their state or Federal license or permit at the time of issuance or renewal.

In the West Coast Region, authorization certificates may be obtained from the Web site http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/fisheries_interactions.html.

In the Alaska Region, authorization certificates may be obtained by visiting the Alaska Regional Office Web site https://alaskafisheries.noaa.gov/pr/mmapregistration.

In the Greater Atlantic Region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year. Certificates may also be obtained by visiting the Greater Atlantic Regional Office Web site http://www.greateratlantic.fisheries.noaa.gov/mmap/.

In the Southeast Region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year. Vessel or gear owners can receive additional authorization certificates by contacting the Southeast Regional Office at 727-209-5952 or by visiting the Southeast Regional Office Web site http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/ and following the instructions for printing the certificate.

The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal license or permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries.

Individuals fishing in Category I and II fisheries for which no state or Federal license or permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES).

In Alaska regional and Greater Atlantic regional fisheries, registrations of vessel or gear owners are automatically renewed and participants should receive an authorization certificate by January 1 of each new year. Certificates can also be obtained from the region's Web site. In Pacific Islands regional fisheries, vessel or gear owners receive an authorization certificate by January 1 for state fisheries and with their permit renewal for Federal fisheries. In West Coast regional fisheries, vessel or gear owners receive authorization either with each renewed state fishing license in Washington and Oregon, with their permit renewal for Federal fisheries, the timing of which varies based on target species, or via U.S. mail. Vessel or gear owners who participate in fisheries in these regions and have not received authorization certificates by January 1 or with renewed fishing licenses must contact the appropriate NMFS Regional Office (see FOR FURTHER INFORMATION CONTACT). In Southeast regional fisheries, vessel or gear owners' registrations are automatically renewed and participants will receive an authorization certificate via U.S. mail automatically at the beginning of each calendar year. Additional authorization certificates are available for printing on the Southeast Regional Office Web site http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/.

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip or, in the case of non-vessel fisheries, fishing activity. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported.

Mortality/injury reporting forms and instructions for submitting forms to NMFS can be found at: http://www.nmfs.noaa.gov/pr/interactions/mmap/#form or by contacting the appropriate regional office (see FOR FURTHER INFORMATION CONTACT). Forms may be submitted via any of the following means: (1) Online using the electronic form; (2) emailed as an attachment to [email protected]; (3) faxed to the NMFS Office of Protected Resources at 301-713-0376; or (4) mailed to the NMFS Office of Protected Resources (mailing address is provided on the postage-paid form that can be printed from the web address listed above). Reporting requirements and procedures can be found in 50 CFR 229.6.

Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that the Secretary is not required to place an observer on a vessel if the facilities for quartering an observer or performing observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; thereby authorizing the exemption of vessels too small to safely accommodate an observer from this requirement. However, U.S. Atlantic Ocean, Caribbean, or Gulf of Mexico large pelagics longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)) will not be exempted from observer requirements, regardless of their size. Observer requirements can be found in 50 CFR 229.7.

Table 4 provides a list of fisheries affected by TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: http://www.nmfs.noaa.gov/pr/interactions/trt/teams.html. It is the responsibility of fishery participants to comply with applicable take reduction regulations.

Information regarding the LOF and the MMAP, including: Registration procedures and forms; current and past LOFs; descriptions of each Category I and II fishery and some Category III fisheries; observer requirements; and marine mammal mortality/injury reporting forms and submittal procedures; may be obtained at: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html, or from any NMFS Regional Office at the addresses listed below:

NMFS reviewed the marine mammal incidental mortality and serious injury information presented in the SARs for all fisheries to determine whether changes in fishery classification are warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of mortality and serious injury of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure, uncertainties in the science, research needs, and other issues.

NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fishermen self-reports, reports to the SRGs, conference papers, FMPs, and ESA documents.

The LOF for 2018 was based on, among other things, stranding data; fishermen self-reports; and SARs, primarily the 2016 SARs, which are based on data from 2010-2014. The SARs referenced in this LOF include: 2014 (80 FR 50599; August 20, 2015), 2015 (81 FR 38676; June 14, 2016), 2016 (82 FR 29039; June 27, 2017). The SARs are available at: http://www.nmfs.noaa.gov/pr/sars/.

The following summarizes changes to the LOF for 2018, including the classification of fisheries, fisheries listed, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. NMFS re-classifies two fisheries in the LOF for 2018. Additionally, NMFS adds two fisheries to the LOF. NMFS makes changes to the estimated number of vessels/persons and list of species and/or stocks killed or injured in certain fisheries. The classifications and definitions of U.S. commercial fisheries for 2018 are identical to those provided in the LOF for 2017 with the changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), BSAI (Bering Sea and Aleutian Islands), CA (California), DE (Delaware), FL (Florida), GOA (Gulf of Alaska), GMX (Gulf of Mexico), HI (Hawaii), MA (Massachusetts), ME (Maine), NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC (South Carolina), VA (Virginia), WA (Washington), and WNA (Western North Atlantic).

NMFS proposes to reclassify the CA thresher shark/swordfish drift gillnet(≥ 14 inch (in) mesh) fishery from Category I to Category II. The most recent mean annual take estimate for the CA/OR/WA stock of sperm whale by this fishery is 0.4 (Carretta, Moore, and Forney, 2017). This take estimate from the most recent five year period of available data (2011-2015) is 14 percent of the stock's PBR (2.7) (Carretta et al., 2015). The Tier II analysis is less than 50 percent but more than 1 percent of the stock's PBR; thus, we propose this fishery be reclassified as Category II.

NMFS proposes to reclassify the Category III AK Gulf of Alaska sablefish longline fishery to Category II based on interactions with sperm whales. Given the uncertainty in stock structure and abundance of sperm whales in the North Pacific and the best available data on North Pacific sperm whale mortality and serious injury (M/SI) in the AK Gulf of Alaska sablefish longline fishery, NMFS is proposing to reclassify the fishery based on the statutory definitions of the categories as outlined in section 118 of the MMPA. Given the current mean estimated annual M/SI of sperm whales in this fishery, NMFS cannot conclude the definition for Category III, “a remote likelihood of or no known incidental mortality or serious injury of marine mammals” is appropriate at this time. Instead, the best available data (i.e., mean annual M/SI estimate of 2.2 for this stock) support classifying the fishery as Category II, defined as “occasional incidental mortality and serious injury of marine mammals.”

Serious injuries to sperm whales in this fishery have been documented from 1997 to 2014. The current (2016) SAR uses data from 2010-2014 to provide an estimated mean annual M/SI rate for sperm whales. During this 5-year window, the AK Gulf of Alaska sablefish longline fishery has five observed serious injury reports that have each been prorated to 0.75 mortalities (NMFS, 2012). Dependent upon the availability of associated catch data used as a metric of effort, some of these observations were extrapolated to the portion of the fishery effort that was not observed. These extrapolations were not available to be incorporated into the SAR until 2016.

There were two observed serious injuries in 2012, and both were used to extrapolate to the unobserved effort resulting in an estimated total mortality of 3.4 in 2012. There were two observed serious injuries in 2013, one was extrapolated and one was not, for an estimated mortality of 6.95 (6.2 + 0.75) in 2013. There was one observed serious injury in 2014, which was not extrapolated, for an estimated mortality of 0.75 for 2014.

These values averaged over the 5-year data interval included in the 2016 SAR represent the reported mean estimated annual M/SI of 2.2 (CV = 0.63) of North Pacific sperm whales in the AK Gulf of Alaska sablefish longline fishery (Muto et al., 2017). This is an increased estimate from the previous (2015) SAR, which reported an estimated mean annual M/SI rate of 0.8 for the years 2009-2013. The increase can be attributed to the addition of one observed serious injury in 2014 and newly available estimates from three previously unextrapolated interactions.

The 2016 SAR for the North Pacific stock of sperm whale does not have a minimum abundance estimate (NMIN) or PBR for use in the LOF tier analysis. However, given the increase in estimated mean annual M/SI of sperm whales in the AK Gulf of Alaska sablefish longline fishery and in response to previous public comments (82 FR 3655; January 12, 2017 comment 6; 81 FR 40870; June 23, 2016 comment 4), NMFS has completed an assessment of this fishery using the best available data.

Using the PBR formula and the stock's recovery factor (FR) of 0.1, we can back-calculate the theoretical NMIN necessary for the AK Gulf of Alaska sablefish longline fishery to remain a Category III fishery. The AK Gulf of Alaska sablefish longline fishery is the only commercial fishery with documented M/SI of North Pacific sperm whales from 2010-2014, so both the Tier 1 and Tier 2 analyses evaluate the same M/SI estimate. In the Tier 1 analysis, for the mean estimated annual M/SI for all commercial fisheries (2.2) to be less than or equal to ten percent of PBR, the NMIN would need to exceed 11,000 whales. NMFS considers it unlikely that the stock exceeds 11,000 whales (see Rone et al., 2016 for portion of range estimate: N = 129 (CV = 0.44) in 2013 and N = 345 (CV = 0.43) in 2015); and, therefore, we proceed to a Tier 2 analysis. In the Tier 2 analysis, for the mean estimated M/SI from the AK Gulf of Alaska sablefish longline fishery (2.2) to be less than or equal to one percent of PBR (the threshold for Category III fisheries), the NMIN would need to exceed 110,000. NMFS considers it unlikely that this sperm whale stock exceeds 110,000 whales and; therefore, concludes the M/SI estimate (2.2) would likely exceed 1 percent of PBR if NMFS had sufficient abundance data to calculate PBR for this stock. Based on this result, combined with the statutory definitions of a Category II fishery under the MMPA, NMFS proposes to reclassify this fishery as Category II.

NMFS proposes to add the AK BSAI halibut longline fishery as a Category III fishery. This fishery is proposed for classification in Category III based on analogy to other halibut longline fisheries.

NMFS proposes to add the AK Gulf of Alaska sablefish pot fishery as a Category III fishery. NMFS recently authorized this fishery for 2017 for sablefish Individual Fishing Quota (IFQ) share holders. In this fishery, sablefish pots are set along a longline, a method previously authorized and implemented in Alaska in the BSAI. This fishery is proposed for classification in Category III by analogy to other sablefish pot fisheries in Alaska.

NMFS proposes to remove the Category III AK miscellaneous finfish set gillnet fishery from the LOF as miscellaneous finfish are not the target of set gillnet fishing methods.

NMFS proposes to remove the Category III AK miscellaneous finfish beach seine fishery from the LOF as miscellaneous finfish are not the target of beach seine fishing methods.

NMFS proposes to remove the Category III AK miscellaneous finfish purse seine fishery from the LOF as miscellaneous finfish are not the target of purse seine fishing methods.

NMFS proposes to remove the Category III AK octopus/squid purse seine fishery from the LOF as octopus and squid are not the target of purse seine fishing methods.

NMFS proposes to remove the Category III AK BSAI rockfish longline fishery from the LOF as rockfish are not the target of longline fishing methods in this region.

NMFS proposes to remove the Category III AK Gulf of Alaska rockfish longline fishery from the LOF as rockfish are not the target of longline fishing methods in this region.

NMFS proposes to remove the Category III AK halibut longline/set line (state and Federal waters) fishery from the LOF as this fishery is covered by AK Gulf of Alaska halibut longline and AK BSAI halibut longline fisheries on the LOF.

NMFS proposes to remove the Category III AK miscellaneous finfish otter/beam trawl fishery from the LOF as miscellaneous finfish are not the target of otter/beam trawl fishing methods.

NMFS proposes to remove the Category III AK statewide miscellaneous finfish pot fishery from the LOF as miscellaneous finfish are not the target of pot fishing methods.

NMFS proposes to remove the Category III AK snail pot fishery from the LOF as there are currently no participants.

NMFS proposes to remove the Category III AK octopus/squid handline fishery from the LOF as octopus and squid are not the target of handline fishing methods.

NMFS proposes to remove the Category III AK Abalone fishery from the LOF as there are currently no participants.

NMFS proposes to clarify that the Category II AK BSAI rockfish trawl fishery includes sablefish catches. As sablefish is not the target species in this area, sablefish will not be listed as a separate fishery but will be considered as incidental catch in the rockfish trawl fishery in this region.

NMFS proposes to add a superscript “1” to the CA/OR/WA stock of humpback whale to indicate it is driving the Category II classification of the CA spiny lobster fishery. In 2015, gear associated with this fishery entangled a humpback whale (Carretta, Muto et al., 2017).

NMFS proposes to rename the Category III AK salmon purse seine (excluding salmon purse seine fisheries listed elsewhere) fishery to AK salmon purse seine (Prince William Sound, Chignik, Alaska Peninsula) fishery. The proposed change is for clarity to directly indicate the areas included.

NMFS proposes to clarify that the Category III AK Gulf of Alaska rockfish trawl fishery includes targeted fishing for sablefish, which is included in the rockfish Fisheries Management Plan.

NMFS proposes to rename the Category III AK food/bait herring trawl fishery to AK Kodiak food/bait herring otter trawl fishery to clarify that this fishery only takes place in Kodiak and specifically uses otter trawl.

NMFS proposes to rename the Category III AK shrimp otter trawl and beam trawl (statewide and Cook Inlet) fishery to AK shrimp otter trawl and beam trawl fishery. There is no need to specifically mention the Cook Inlet area because this fishery is statewide.

NMFS proposes to rename the Category III AK State-managed waters of Cook Inlet, Kachemak Bay, Prince William Sound, Southeast AK groundfish trawl fishery to AK State-managed waters of Prince William Sound groundfish trawl fishery as the state banned trawling in the other areas currently specified.

NMFS proposes to combine the Category III AK Aleutian Islands sablefish pot fishery in the LOF with the Category III AK Bering Sea sablefish pot fishery for consistency with other regional designations in the LOF. The proposed change would combine these fisheries as AK BSAI sablefish pot fishery.

NMFS proposes to break the Category III AK miscellaneous finfish handline/hand troll and mechanical jig fishery into several fisheries by gear and geography for improved fishery categorization of potential impacts to marine mammals. For gear types, NMFS proposes to recognize jig and troll techniques separately to distinguish between fishing methods that may have different degrees of marine mammal interactions. NMFS proposes separating these into two regions, BSAI and Gulf of Alaska to better understand potential regional threats to marine mammals. NMFS will continue to consider the same group of target species together for the revised classification because the included groundfish species are often targeted simultaneously or only retained secondary to another primary target species in this group. NMFS considers “groundfish” to include, but not be limited to: Pacific cod, sablefish, ling cod, and various rockfish species. When reporting a marine mammal interaction, fishermen will be responsible to self-identify their fishery by area, target species, and gear type. The new Category III fishery names are: (1) AK BSAI groundfish jig, (2) AK BSAI groundfish troll, (3) AK Gulf of Alaska groundfish jig, (4) AK Gulf of Alaska groundfish troll.

NMFS proposes to rename the Category III AK North Pacific halibut handline/hand troll and mechanical jig fishery to AK halibut jig fishery for clarity and consistency. There is no directed troll or handline effort for halibut, but there is jig effort.

NMFS proposes to rename the Category III AK urchin and other fish/shellfish fishery to AK miscellaneous invertebrates hand pick fishery for clarity and consistency with the National Bycatch Report. This includes hand-picked fisheries for urchin, cucumbers, and bivalves.

NMFS makes an administrative change to the Category III Alaska scallop dredge fishery to be renamed AK scallop dredge for consistency.

NMFS proposes to update the estimated number of vessels/persons in the Pacific Ocean (Table 1) as follows:

NMFS proposes to add the Central North Pacific stock of humpback whale to the list of stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery. A humpback was seriously injured in 2014 in this fishery.

NMFS proposes to add the Hawaii stock of Kogia spp. (Pygmy or dwarf sperm whale) to the list of stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery to keep parallel structure with Table 3.

NMFS proposes to add the CA/OR/WA stock of Dall's porpoise to the list of stocks incidentally killed or injured in the Category I CA thresher shark/swordfish drift gillnet (≥14 in mesh) fishery based on a 2014 observed entanglement (Carretta, Forney et al., 2017).

NMFS proposes updates to the estimated number of vessels/persons in the Atlantic Ocean, Gulf of Mexico, and Caribbean (Table 2) as follows:

NMFS proposes to add the Northern Gulf of Mexico stock of rough-toothed dolphin to the list of stocks incidentally killed or injured in the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. In 2014, two serious injuries of rough-toothed dolphins were observed in this fishery (Garrison and Stokes, 2017). The estimated annual combined mortality and serious injury, from 2010-2014, attributable to this fishery in the northern Gulf of Mexico was 0.8 (Hayes et al., 2017). Observer coverage from 2010-2014 for this fishery was 9.7, 10.1, 8.6, 14.1, and 12.3 percent, respectively.

NMFS proposes to remove the WNA stock of white-sided dolphin from the stocks listed as incidentally killed or injured in the Category II Mid-Atlantic mid-water trawl fishery. The last documented take of white-sided dolphin in this fishery occurred in 2009 (Waring et al., 2016). Since no additional takes have been documented since 2009, we propose to remove the stock. Observer coverage from 2010-2014 for this fishery was 25, 41, 21, 7, and 5 percent, respectively.

NMFS proposes to add the WNA stock of white-sided dolphin to the list of stocks incidentally killed or injured in the Category II Mid-Atlantic bottom trawl fishery. White-sided dolphin takes were documented in this fishery prior to 2008, but no takes were documented from 2008-2013 leading to the stock's removal from the list in the 2016 LOF (81 FR 20550; April 8, 2016). In 2014, 9.67 takes were estimated. The current mean combined annual mortality rate for 2010-2014 is now 1.9 animals per year (Hayes et al., 2017). Potential biological removal for this species is 304 (Hayes et al., 2017); therefore, the current annual mortality estimates (0.625 percent of PBR) will not drive the Category II classification of this fishery. Observer coverage from 2010-2014 for this fishery was 6, 8, 5, 6, and 8 percent, respectively.

NMFS proposes to add the WNA offshore stock of bottlenose dolphin to the list of stocks incidentally killed or injured in the Category III Gulf of Maine, U.S., Mid-Atlantic tuna, shark, swordfish hook-and-line/harpoon fishery. A fisherman self-reported one bottlenose dolphin injury that was determined to be a serious injury in 2010 (Waring et al., 2016).

NMFS proposes to add three stocks to the list of stocks incidentally killed or injured in the Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel fishery. The three stocks are: (1) WNA stock of short-finned pilot whale and (2) Barataria Bay estuarine system stock and (3) Mississippi Sound, Lake Borgne, Bay Boudreau stock of bottlenose dolphins.

In 2013, one short-finned pilot whale was self-reported by a charterboat fisherman (Hayes et al., 2017). The hooked and entangled animal was released alive; however, NMFS determined the injury to be serious (Maze-Foley and Garrison, 2016).

In 2011, one dead and one injured Barataria Bay estuarine system stock of Bottlenose dolphins were documented in hook-and-line gear. In 2013, two injured dolphins from this stock were documented in hook and line gear (Waring et al., 2016).

In 2011, three dead Mississippi Sound, Lake Borgne, Bay Boudreau stock of bottlenose dolphins were documented in hook-and-line gear. In 2012 and 2013, one death was documented each year associated with hook and line gear (Waring et al., 2016).

NMFS corrects three administrative errors in Table 2. Under stocks listed as incidentally killed or injured in the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagic longline fishery, NMFS updates to stock name for Atlantic spotted dolphin from “GMX continental and oceanic” to “Northern GMX”. Second, in the Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel fishery, NMFS updates the stock name for bottlenose dolphin from “Southern SC/GA coastal” to “SC/GA coastal”. Last, NMFS removes the WNA stock of Risso's dolphin and white-sided dolphin from the stocks listed as incidentally injured or killed in the Category I Mid-Atlantic gillnet fishery. These stocks were removed in the 2016 LOF (80 FR 58427, September 29, 2015), but the change was not reflected on Table 2.

NMFS proposes to remove the Category II Atlantic highly migratory species drift gillnet fishery from the LOF as there are currently no participants.

NMFS proposes to designate the list of stocks incidentally killed in injured in a fishery from “undetermined” to “no information” for clarity that no data are available for interactions in that fishery.

NMFS proposes updates to the estimated number of vessels/persons on the High Seas (Table 3) as follows:

NMFS proposes to add the Hawaii stock of Kogia spp. (Pygmy or dwarf sperm whale) to the list of stocks incidentally killed or injured in the Category I Western Pacific Pelagic (HI deep-set component) longline fishery. In 2014, one serious injury was observed in this fishery (Carretta, Forney et al., 2017).

NMFS proposes to add the Central North Pacific stock of humpback whale to the list of stocks incidentally killed or injured in the Category I Western Pacific Pelagic (HI deep-set component) longline fishery to keep parallel structure with Table 1.

The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska), Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean, Table 3 lists commercial fisheries on the high seas, and Table 4 lists fisheries affected by TRPs or TRTs.

In Tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. For example, the State of Hawaii does not issue fishery-specific licenses, and the number of participants reported in the LOF represents the number of commercial marine license holders who reported using a particular fishing gear type/method at least once in a given year, without considering how many times the gear was used. For these fisheries, effort by a single participant is counted the same whether the fisherman used the gear only once or every day. In the Mid-Atlantic and New England fisheries, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to extract more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, contact the relevant regional office (contact information included above in SUPPLEMENTARY INFORMATION).

For high seas fisheries, Table 3 lists the number of valid HSFCA permits currently held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time. As noted previously in this LOF, the number of HSFCA permits listed in Table 3 for the high seas components of fisheries that also operate within U.S. waters, does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports (i.e., MMPA reports), and anecdotal reports. The best available scientific information included in these reports is based on data through 2012. This list includes all species and/or stocks known to be killed or injured in a given fishery but also includes species and/or stocks for which there are anecdotal records of a mortality or injury. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports (i.e., MMPA reports) may not be verified. In Tables 1 and 2, NMFS has designated those species/stocks driving a fishery's classification (i.e., the fishery is classified based on mortalities and serious injuries of a marine mammal stock that are greater than or equal to 50 percent (Category I), or greater than 1 percent and less than 50 percent (Category II), of a stock's PBR) by a “1” after the stock's name.

In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented mortalities or serious injuries of marine mammals, or fisheries that did not result in a mortality or serious injury rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063; December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 (i.e., fishing techniques, gear types, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fishermen reports, stranding data, and the species and distribution of marine mammals in the area). NMFS has designated those fisheries listed by analogy in Tables 1 and 2 by a “2” after the fishery's name.

There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the exclusive economic zone (EEZ) boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately between Table 1 or 2 and Table 3, are considered the same fisheries on either side of the EEZ boundary. NMFS has designated those fisheries in each table by a “*” after the fishery's name.